Jalinder @ Vicky @ Vivek Ramchandra Jadhav v. The State of Maharashtra

1. The present appeal is directed against the judgment and order dated 30.11.2015 passed by Sessions Judge, Thane, thereby convicting the appellant-original accused for the offence punishable under Section 302 of Indian Penal Code, 1860 (for short ‘IPC) and sentenced to suffer life Bhagyawant Punde, PA DNYANESHWAR ASHOK ETHAPE imprisonment and to pay fine of Rs. 500/- (Rupees Five Hundred Only) and in default R.I. for 15 days.

2. The prosecution case in brief can be summarized as under:- Complainant Karan @ Samir Kedar (PW[5]) used to reside at Diva, Akash Nagar area with his wife Ashwini Giri (PW[8]). Initially Nirale Shaikh used to work with complainant as his helper for conducting the business of sale of cutlery articles in the train. Vijay Gulab Patil (PW[2]), Munna Shaikh (PW[7]) also used to conduct same business of sale of cutlery in the train. One month before the incident, Nirale Shaikh (deceased) left the job of complainant and started living with Vijay Bali (PW[2]). Therefore, Samir Giri engaged the appellant-accused as his helper on daily wages. On 04.05.2013 at about 11.00 pm, Samir Giri had his dinner with his wife Ashwini Giri, Munna Shaikh and accused person. Thereafter, accused went to his residence. However, after half an hour accused called Samir on his mobile phone and informed him that Nirale Shaikh (deceased) had quarreled with accused and during that quarrel accused was assaulted by Nirale Shaikh (deceased). Therefore, to give understanding to the Nirale Shaikh (deceased), Samir Giri, Ashwini Giri and Munna Shaikh went to the house of Vijay Bali at Appachi Wadi. That time, Nirale Shaikh (deceased) was taking dinner with Vijay Bali and his wife Saburi Bali. Samir Giri called Nirale Shaikh (deceased) out of the house of Vijay Bali and took him near grocery shop for settling the dispute between accused and Nirale Shaikh (deceased), at about 12.00 midnight. When the discussion in between Samir Giri and Nirale Shaikh (deceased) was in progress, that time accused reached on the spot holding knife in his hand and inflicted single knife blow on the abdomen of Nirale Shaikh (deceased). Nirale Shaikh (deceased) fell down and intestine was protruding from his stomach. However, there was no severe external bleeding from the injury sustained by Nirale Shaikh (deceased). Samir Giri, Vijay Bali and other person took Nirale Shaikh (deceased) initially to Sai Hospital at Diva. However, doctor from Sai Hospital refused to admit Nirale Shaikh (deceased). Therefore, Nirale Shaikh (deceased) was taken to Kalsekar Hospital at Mumbra, where Nirale Shaikh (deceased) succumbed to injury at about 3.42 am. By that time, Police Station, Mumbra was informed by the Medical Officer from Kalsekar Hospital. As Nirale Shaikh (deceased) was unconscious, his dying declaration could not be recorded. On 05.05.2013, at about 4.15 am, Karan @ Samir Giri lodged FIR (Exhibit-26) with Police Station, Mumbra. In the result, CR No. 364/2013 was registered at Police Station, Mumbra under Section 302 of IPC.

3. Initially, PSI, Shri. Pawar conducted the investigation and prepared spot panchnama (Exhibit-33) and inquest panchnama (Exh.11). On 06.05.2013 investigation of this crime was handed over to PI Shri. S.R. Nagarkar (PW[9]). On the same day he arrested the accused at 9.15 pm, and seized his clothes under seizure panchnama (Exhibit-12). He also referred the accused to Chhatrapati Shivaji Hospital, Kalwa for medical examination and for collecting blood sample of accused. The investigating officer had also seized blood stained clothes of the Nirale Shaikh (deceased) under seizure panchnama. The dead body was referred for post mortem examination. Dr. Mangesh Ghadge performed autopsy examination and submitted post mortem notes. When accused was in police custody on 08.05.2013, he made disclosure statement (Exh.22) and as per his disclosure statement he showed knife which was thrown in one ditch near Tata Electric Power Line at Prashant Nagar, Diva. That knife was seized under panchnama in presence of panch Saeed Baig and panch Mohammed Samaseaalam. During investigation, all the seized articles were referred to chemical analyzer along with blood samples of the accused on 12.05.2013. By submitting C.A. reports, chemical analyzer reported that on the clothes of Nirale Shaikh (deceased) and on the knife human blood was detected. However, no blood stains were detected on the clothes of accused. He also reported that blood group of accused is ‘O’. However, blood group of Nirale Shaikh (deceased) could not be ascertained as blood sample was not suitable for blood grouping.

4. After completion of investigation, charge sheet came to be submitted against the accused before JMFC, Thane. As the offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions, JMFC, Thane was pleased to commit the case to the Sessions Court for trial. The Sessions Court framed charge against the accused. Accused pleaded not guilty and claimed to be tried.

5. After a full fledged trial, the trial Court convicted the accusedappellant for the offence punishable under Section 302 of IPC by its judgment and order dated 30.11.2015.

6. In order to prove prosecution case, the prosecution has examined Medical Officer Dr. Mangesh Ghadge (PW[1]), who performed autopsy examination on the dead body of Nirale Shaikh (deceased). As eye witnesses prosecution has examined Vijay Bali (PW[2]), Saburi Bali (PW[4]), Karan @ Samir Giri (PW[5]), Munna Shaikh (PW[7]), Ashwini Giri (PW[8]) and as panch witness Shri. Saeed Baig (PW[3]). Dr. Imran Shaikh (PW[6]) is the Medical Officer where the Nirale Shaikh (deceased) was admitted after occurrence of incident. PI Shri. S.R. Nagarkar (PW[9]), is the investigating officer.

7. In order to find out whether the death is homicidal, suicidal or accidental, it is necessary to discuss the evidence of Dr. Mangesh Ghadge (PW[1]). In his examination-in-chief he deposed that, on 05.05.2003, he was attached to Chhatrapati Shivaji Hospital, Kalwa as Associate Professor. On that day, he performed the post mortem on the dead body sent by PSI Shri. Pawar from Mumbra Police Station. He has also prepared post mortem report and signed the same. The post mortem report entries are in his own handwriting. During his examination-in-chief the post mortem report was shown to him. He identified the contents of said report. There was one external injury in column No. 17 and it was stab wound over front of abdomen, left lumbar region, vertical with upper angle acute, clean cut margin, 3 X 0.[6] c.m. X cavity deep, 3 c.m. to left of umbilicus horizontally, coils of intestine protruding out. On dissection corresponding internal injuries, he found cut skin, subcutaneous tissue fat, peritoneum and omentum at two places. Said injury was antemortem. In Column No. 21, he has mentioned that, in cavity there was blood and blood clots in abdomen 2000 c.c. i.e. two liters. He also found evidence of perforation of omentum at two places (there was hole to the layer attached to the intestine). Because of such injuries instant death can occur and the said injury is sufficient to cause the instant death. Said injuries are possible due to sharp pointed object. The blood and nail clippings and scalp hair were preserved for blood group (C.A. analysis). The cause of death written by him is hemorrhage and shock due to injury to vital structures caused by sharp pointed weapon. Such type of injuries are possible with sharp pointed weapon or sharp knife.

8. In his cross examination, he stated that some blood must have come out of the body.

9. The prosecution has examined Mr. Vijay Gulab Bali (PW[2]). In his examination-in-chief he stated that in the year 2013, he was residing at Appachi Wadi, Vaibhav Ganesh Chawl, Diva, and was selling cutlery material in the train. He know the accused because he was also doing the similar business in the train. He know deceased Nirale Shaikh because he was also doing the similar business with them. The accused and Nirale Shaikh were also residing in the same chawl. One Samir Giri was also residing in their chawl, but after his marriage with Ashwini, he shifted to other premises. Nirale Shaikh and Munna Shaikh were taking food with him and used to sleep in other premises in other chawl. Eight days before the incident Nirale Shaikh and Munna Shaikh came to reside in their chawl. There were disputes between Nirale Shaikh and Samir Giri, however, the cause of dispute was that Samir Giri married with Ashwini. Samir employed the accused for his business. He further stated that on 05.05.2013, he himself, Nirale Shaikh and Munna Shaikh were consuming liquor near ‘Diva Beer Shop’ in the night time at about 8.30 pm. The accused and Samir came at the spot. Samir and accused were showing new shopping material to Nirale Shaikh and Munna were teasing them. Thereafter, Vicky, Munna and Samir went to Samir’s house. They finished their Beer drink and were sitting near Raj Kirana store. At that time, the accused Vicky came near them, Nirale Shaikh went to Vaibhav Dhaba and was convincing the accused not to go for job with Samir. Therefore, they were abusing each other and fighting. Nirale fell down. Vicky was sitting on his body and giving fist and blows to him. He went to separate the quarrel, but at that time Vicky pushed him, thereafter, he removed the waist belt and started beating Vicky. Therefore, he ran away from the spot. Thereafter, he himself, and Nirale Shaikh came to his house and were taking food. At that time, Samir, Ashwini and Munna also came to his house. Then he called Nirale Shaikh outside the house as he wanted to talk something to him. He prevented Samir for calling Nirale Shaikh outside till he finished his dinner. However, Samir told that he has urgent work and therefore, by keeping hand on shoulder, Samir took Nirale Shaikh outside to Raj Kirana store. He himself, his wife, Munna followed Samir and Nirale Shaikh. Samir was saying to Nirale Shaikh that, do not keep grudge against the accused- Vicky as he was employed by him. At that time, all of sudden Vicky came on the spot and gave forceful stab to Nirale Shaikh on his stomach and Nirale Shaikh fell down and then they saw that there was knife in the hands of Vicky. They thought that Nirale Shakh was doing action of felling down, but then they saw by going near to him and they found that his intestine came out. Thereafter, they tried to catch hold the accused-Vicky, but he ran away from the spot. Thereafter, he called one taxi driver from the chawl and in his taxi they took Nirale Shaikh to Sai Hospital, Dival. In the said hospital, they were told that there was no doctor. Therefore, they went to Diva Hospital, there also Nirale Shaikh was not admitted by saying that it is a police case and advised them to go Government Hospital. Thereafter, by auto rickshaw they went to Mumbra at Kalsekar Hospital and there Nirale Shaikh was admitted. However, in night time, Nirale Shaikh died. After two days, his statement was recorded on 07.05.2013.

10. Upon careful perusal of cross examination of PW[2], nothing useful to the defence in relation to the case in hand has been elicited. It appears that suggestion was given that this witness and Samir killed Nirale Shaikh and to escape from the said act, he did not inform police and Nirale was not taken to the public hospital. The said suggestion has been denied by PW[2].

11. The prosecution has examined Saburi Vijay Bali (PW[4]). In her examination-in-chief she deposed that, in the year 2013 in the month of May, she was residing at Appachi Wadi, Vaibhav Dhaba, Ganesh Chawl, Diva. She know Karan @ Samir Kedar Giri and she know the accused, who was sitting in the Court, who was her neighbor and he was residing in the chawl behind her chawl. Nirale Shaikh was working with her husband. Therefore, she knew him. The accused Nirale Shaikh and her husband were selling the cutlery material in the train. Alongwith her and her husband since last two days of the incident Nirale Shaikh had come to stay. On 05.05.2013, at about 11.30 pm, in the night, she herself, her husband and Nirale Shaikh were taking dinner in her house. At that time Munna Shaikh, Samir Giri and his wife Ashwini came to their house and Nirale Shaikh and they wanted to speak with him and therefore, Nirale Shaikh was called outside the house. Thereafter, she herself and her husband followed them. Nirale Shaikh, Munna Shaikh, Samir Giri and his wife were standing near one grocery shop. At that time, accused came running at the said spot. He was having article similar to knife and immediately he stabbed with the said article to Nirale Shaikh and accused ran away from the said spot. At that time, Nirale Shaikh fell on the ground by holding his stomach. They thought that Nirale Shaikh was playing some drama because they could not see any blood. However, later on they saw that his intestine came out. They were afraid. Therefore, they took him to the hospital by putting him in the auto rickshaw to Diva Sai Hospital. The hospital persons told that the case is very serious and therefore, they refused to admit Nirale. Thereafter, they took him to Kalsekar Hospital. Nirale was admitted in the hospital, but he could not survive for long and he was declared dead at 3.00 in the midnight.

12. During the cross examination, it appears that this witness was asked whether street lights and electric lamps were working on the date of incident. This witness stated that there were no street lights and electric lamps of the shop was not working. Along with Nirale, her husband and she herself were in one auto rickshaw. Munna, Ashwini and Samir were in another auto rickshaw. She was sitting next to the driver. Blood was not oozing, but intestine had come outside the stomach of Nirale Shaikh. It appears that since the husband of PW[4], accused Vicky, Nirale Shaikh, Munna Shaikh were known to each other, the question whether there were street lights or not was not relevant, when the incident was witnessed by more than one witness.

13. The prosecution has examined Karan @ Sameer Kedar Giri (PW[5]). He stated that on 04.05.2013 in the night at about 11.00 pm. He himself, his wife, accused and Munna were taking meal at his house. After dinner accused went to his house. After 15 minutes accused called him on his mobile phone and reported that his brother Nirale Shaikh was beating him. Thereafter, he himself, his wife and Munna went to Bali’s house where Nirale was staying. Nirale and others were taking food, therefore, he called Nirale outside the house. Thereafter, he himself, his wife Nirale, Bali, Bali’s wife and Munna were discussing near Kirana shop. There was a shop light. Accused was also present. At that time, he asked Nirale why he is quarreling with the accused. Thereafter, he told accused to call his mother, so he went for calling his mother. Immediately accused came running after sometime i.e. within 2-3 minutes. He gave on fist blow on the stomach of Nirale. Immediately, Nirale fell down. They thought Nirale got some muffing injury. However, they saw the intestine came out and knife was in the hand of accused. Thereafter, accused Vicky ran away from the spot. Thereafter, injured Nirale was taken to hospital at Diva. However, they refused to admit Nirale, therefore, they went to another hospital at Diva. There also Nirale was not admitted. Therefore, they went to Kalsekar hospital at Diva. However, doctor informed them that Nirale is dead.

14. In the cross examination PW[5] deposed that there was no street light in the said area. He further stated that he has not seen accused coming with knife in his hand. However, in his examination-in-chief he stated that accused gave one fist blow on the stomach of Nirale and he saw intestine came out and knife was in the hand of accused. Therefore, merely because he stated in the cross examination that he did not see accused coming with knife would not wipe out his deposition in the examination-in chief.

15. Dr. Imran Riyaz Khan was examined by the prosecution as PW[6]. In his examination-in-chief he stated that he was Chief Medical Officer in Kalsekar Hospital since January, 2013 for about eight months. On 05.05.2013, one patient by name Nirale Shaikh had come to their hospital with stab wound injury in left para umblical region with bulging of intestine. Immediately, the patient was taken in emergency room and he informed Mumbra Police Station. The patient was in shock, his blood pressure was not recordable, pulse count was below 60, saturation level was upto 90%, breathing was shallow. There was loss of blood, therefore, the patient was intubated for the airway protection and the oxygen level was reducing. However, pulse rate of patient was still going down upto 30. Therefore, he was taken on C.P.R. (Cardiac Purbunary Resuccusion). Emergency medicines were given. These facts were explained to the relatives. He further told that emergency operation was required and therefore, the patient was to be shifted to Government hospital. However, before he shifted the patient, the patient died.