The Judgment of the Court was delivered by

P.S Brahme, J.— The appellant Shivshankar Kesorao Tijare was tried for committing murder of one Prabhudas Sitaram Gadhave in Sessions Trial No. 11 of 1997 before the Additional Sessions Judge, Bhandara. The prosecution examined in all ten witnesses including Ayodhya Prasad (PW 5), Ramchandra Chaudhari (PW 6) as eyewitnesses, Munna Ramji Meshram (PW 2) to whom the appellant is alleged to have made confession, Dr. Mankar (PW 9) and Gopal Tangale (PW 7) as panch witness in whose presence weapon of assault and clothes i.e Manila of the appellant came to be seized under seizure memo (Ext. 33-A) in pursuance of disclosure statement vide memorandum (Ext. 33) made by the appellant and PSI Ranganath Unde (PW 10), who conducted investigation in the matter. Learned Additional Sessions Judge by judgment dated 23-4-1999, convicted the appellant for offence under S. 302 of the Penal Code and sentenced him to imprisonment for life and to pay a fine of Rs. 1000 in default, to undergo RI for one year. This judgment of conviction and sentence is under challenge in this appeal.

2. The incident which gave rise to the prosecution against the appellant took place on 17-11-1996 at about 7.30 a.m at Mouza Dewhada which comes under Tahsil Mohadi, District Bhandara which is within the jurisdiction of Police Station Mohadi. The houses of the appellant and victim Prabhu Gadhave are in close vicinity. Towards the western side of their houses, there is a house of one Balraj Pentmidiwar and in front of his house there is open courtyard. The courtyard of the house of this person is adjoining to the courtyard of deceased Prabhu Gadhave. The houses of witness Ayodhya Prasad (PW 5) and Ramchandra Chaudhari (PW 6) are towards the northern side of the house of deceased Prabhu Gadhave. The witness Balraj Pentmidiwar (PW 4) on 17-11-1996, at about 7.30 a.m saw deceased Prabhu having killed and his body was lying in open courtyard. His clothes were stained with blood. He immediately went to the house of Police Patil Shri Dayaram Kamble and told him the fact that deceased Prabhu was lying in the courtyard. Then Dayaram Kamble and Sarpanch Zagduji Budhe came to the spot and they saw that there were injuries on the neck, near ear of deceased Prabhu Gadhave and when asked witness Ayodhya Prasad (PW 5), he told that there was scuffle between deceased and the appellant and the appellant had assaulted deceased Prabhu with Barchi. He, therefore, confirmed the fact and went to Police Station Mohadi and lodged the report (Ext. 18). Police registered offence vide Crime No. 129 of 1996 on that report and Police Officer PSI Ranganath Unde (PW 10) proceeded to the place of occurrence and prepared spot panchnama (Ext. 22). He also drew inquest panchnama and sent the dead body to Medical Officer, Tumsar for post-mortem. The appellant was arrested and when interrogated, he made disclosure statement in respect of barchi, stick and his clothes vide memorandum (Ext. 33) and then in pursuance of that barchi, Article 13, stick, Article 14 and manila, Article 12 came to be seized on being produced by the appellant under seizure memo (Ext. 33-A). The property that came to be seized was sent to the Chemical Analyser. The Chemical Analyser submitted the reports (Exts. 41 and 42). After completing investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, Tumsar, who committed the case to the Court of Session. Before the learned Sessions Judge, the appellant pleaded not guilty to the charge and claimed to be tried. His defence is that of total denial. At the trial, the prosecution made evidence of witnesses Ayodhya Prasad (PW 5), Ramchandra Chaudhari (PW 6), Dr. Mankar (PW 9), Gopal Tangale (PW 7), Munna Ramji Meshram (PW 2) and Investigating Officer Ranganath Unde (PW 10). The learned Sessions Judge accepted the evidence and found that the offence under S. 302 is brought home and accordingly the appellant was convicted for the said offence and was sentenced as stated earlier.

3. We have heard Shri M.R Daga, the learned counsel for the appellant and Shri S.G Loney, learned Additional Public Prosecutor for the respondent State.

4. We have gone through the evidence of witnesses with the assistance of learned counsel for the appellant. The fact that victim Prabhu died homicidal death on account of injuries sustained by him is not disputed. That apart, medical evidence of Dr. Mankar (PW 9) who conducted autopsy on the dead body of victim Prabhu is sufficient to establish that the deceased died homicidal death. In his evidence, Dr. Mankar has categorically stated about the external injuries which he found on the dead body and the said injuries have been noted in column 17 of the post-mortem report (Ext. 46). The external injuries which he noted are as follows:

(1) Incised wound on (lt.) anterior part of neck. One cm above the sternal end of (lt.) clavicle. Horizontal in direction, parallel one cm above the sternal end of clavicle. Size 5 cm × 1 cm × 2 cm in depth. Depth of injury is piercing the internal organs. Clotted blood is present. Margin Sharp.

(2) Incised wound on lateral part of (lt.) parietal bone one cm above the pinna size 3½ cm × 1 cm ×½ cm oblique in direction. Margin sharp and clear.

(3) Incised wound on lateral part of (lt.) parietal bone 2 cm above the pinna. Size ½ cm ×¼ cm ×½ cm. Horizontal in direction. Margin sharp and clear cut.

(4) Incised wound on lateral part of (rt.) side of neck in parallel line with neck of mandible. Vertical direction. Size 4 cm ×½ cm × 4 cm Margin sharp and clear cut.

(5) Incised wound on middle part of great toe of (lt.) hand. Size 2½×½ cm ×½ cm. Vertical in direction. Margin sharp and clear cut.

5. These injuries were ante-mortem in nature. He also noted on internal examination corresponding injuries as hematoma on the left lateral side of parietal region which was corresponding to external Injuries 2 and 3 shown in column 17. He also noticed 300 ml of clotted blood in right lung and left side of thoraxic wall, lungs shunken. According to doctor, this injury is possible due to Injury 1. He also found that left carotid artery was punctured and clotted blood was present. This injury was corresponding to Injury 1. According to him, Injuries 1, 2 and 3 were fatal and sufficient in the ordinary course of nature to cause death. These injuries were possible due to sharp object like barchi, Article 13 as also stick, Article 14 and accordingly he gave his opinion vide certificate (Ext. 48) when the weapons were referred to him. He opined that cause of death was due to haemorrhagic and neurogenic shock as a result of injury to vital organ like brain. It was suggested to Medical Officer by the defence that Injuries 2 and 3 are possible due to fall on running on the sharp-edged weapon. The Medical Officer has stoutly denied the suggestion. The doctor has stated that Injuries 2 and 3 are caused to brain and, therefore, the patient died. He stated in his cross-examination that Injuries 2 and 3 shown in column 17 are possible due to hitting with barchi. He also stated that if two persons are quarrelling then the injuries are not possible. It is, therefore, clear from the nature of cross-examination of Medical Officer that the factum of injuries sustained by the victim is not denied. The Medical Officer has totally ruled out the possibility of the injuries being caused by falling of a person who is running. Therefore, there is no hesitation in accepting the medical evidence which clinchingly establishes the fact that the victim died homicidal death and that too on account of multiple injuries, severe and serious in nature caused as a result of assault with the weapon namely barchi, Article 13 and stick, Article 14. The witness Ayodhya Prasad (PW 5) in his evidence identified barchi, Article 13 shown to him and he has emphatically stated that the accused had beaten the deceased with this barchi. He has also stated that while deceased was beaten with this weapon, there was a wooden stick to the weapon barchi. The other eyewitness Ramchandra Chaudhari (PW 6) also identified barchi, Article 13 and claimed that the deceased was assaulted by the accused with this barchi. The evidence of both these witnesses in respect of identification of weapon namely barchi, Article 13 has gone unchallenged. It is significant for the fact that as per the report of the Chemical Analyser (Ext. 41), human blood of blood Group “B” was detected on barchi, Article 13. The blood group of the blood of the deceased as per the report of Chemical Analyser is “B”. Therefore, identification of the weapon barchi, Article 13 is relevant for the reason that human blood having blood Group “B” which is the blood group of blood of the deceased was detected on it. This further establishes that the injuries were caused by inflicting blows with the barchi, Article 13, on the person of victim Prabhu Gadhave. Therefore, this reinforces the conclusion that the deceased died homicidal death.

6. The prosecution also placed reliance on the evidence of panch witness Gopal Tangale (PW 7). In his evidence, he has stated that in his presence the investigating officer interrogated the appellant and that time the appellant disclosed to produce barchi, stick and manila from the place where he had kept. In pursuance of the disclosure statement made by the appellant, memorandum (Ext. 33) was drawn by PSI Ranganath Unde (PW 10). It is further in the evidence of witness Gopal Tangale, and Investigating Officer Ranganath Unde (PW 10) that in pursuance of the statement made, the appellant took out the barchi, Article 13, stick, Article 14 and manila, Article 12 from his house which came to be seized under panchnama (Ext. 33-A). The factum of recovery of these articles has been established conclusively through the evidence of this witness Gopal and that of PSI Ranganath Unde. Though both these witnesses were subjected to cross-examination on particular issue of recovery, their evidence remains unshaken. There is absolutely no reason to discard their evidence. The trial court has accepted their evidence correctly. Therefore, we have no hesitation in accepting their evidence. Their evidence inspires confidence. Accepting their evidence, two things are established. First, the weapon barchi, Article 13 and the stick, Article 14 were kept at the place from where they were never taken out by the appellant. As stated earlier, human blood of blood Group “B” was found on these weapons. The factum of recovery of the weapon at the instance of the appellant itself goes to show that the appellant was the person within whose knowledge the weapons were kept. By the factum of recovery, authorship of the weapon is clinchingly established with the appellant. In addition to that finding of human blood of blood Group “B” on the weapons which are proved to be weapons of assault, clinchingly establishes involvement of the appellant in commission of assault on the victim with the weapons, Articles 13 and 14. This circumstance is most incriminating circumstance pointing out complicity of the appellant in commission of the crime.

7. This takes us to the ocular evidence of two witnesses namely Ayodhya Prasad and Ramchandra Chaudhari, who claimed to be eyewitnesses to the incident. The witness Ayodhya Prasad in his evidence before the Court stated that he saw the accused possessing barchi in his hand and the said barchi had a stick and there was a quarrel between the appellant and the deceased and that the appellant beat deceased giving four strokes. He also stated that he had not seen two strokes but seen the third stroke on neck and throat. He gave call to the accused and that time the accused told that he has beaten the victim. The accused said that whatever he wanted to do he did. The appellant was beating him and he came in the courtyard of the house of Pentmidiwar and fell down there and then he died there. He also stated that he saw injuries to the back side of his head, neck, front portion of neck, near the throat and eyebrow. This witness was cross-examined by the defence at length but, no material has been elicited in his cross-examination so as to discredit his testimony. The presence of this witness is not disputed. The presence of accused is not disputed at the time of occurrence. There is no reason, even suggested to this witness for giving false evidence against the appellant. Much has been made by the learned counsel for the appellant in respect of some omissions brought in his evidence. There was no assault on the victim by the appellant while the victim was running and the appellant was chasing him. The learned counsel submitted that the statement of witness in his evidence that he saw four assaults but only two assaults were seen by him, is self-contradictory. The witness admitted that he has not stated before police that four assaults were dealt. This witness also admitted in his cross-examination that he had not seen from back side any assault and when the deceased fell. He has stated that he had not seen the accused while beating when the deceased was running and fell down. Accepting this statement, we do not think that the claim of this witness in his examination-in-chief regarding assault by the appellant with barchi on victim is impaired in any manner. It appears that the witness did not see the assault on the victim by the appellant when the latter fell down in the courtyard. It is also plausible that about four assaults, the witness has stated on the basis of the injuries inflicted on the person of the victim. It is in that sense that the witness has stated that he has seen two assaults only. Therefore, there appears no contradiction in the statement of the witness and we see no reason to disbelieve the witness. As stated earlier, his evidence thus inspires confidence. His presence on the place of occurrence is borne out from the evidence of other witness namely Ramchandra Chaudhari. It is also true that the witness has not stated clearly as to the parts of the body of deceased on which the blows were inflicted. But, that by itself does not bring any infirmity in his evidence, much less to his claim to have witnessed the incident.

8. Coming to the evidence of witness Ramchandra Chaudhari, according to him, on the day of occurrence at about 7 a.m while he was at his house, he saw accused armed with barchi standing opposite victim Prabhu Gadhave. He also saw that the accused assaulted two blows and then deceased Prabhu started running from his house towards the courtyard of house of Balraj Pentmidiwar and then accused dealt two three blows on him there and thus accused took out barchi from the stick. This witness was cross-examined by the defence. Some omissions have been brought in his evidence. The learned counsel for the appellant on the basis of those omissions tried to submit that the witness has made improvements on material aspects and, therefore, his evidence suffers from laches as such no reliance can be placed on his evidence. We have verified the statement of witness recorded before the Court vis-à-vis his police statement to ascertain whether really the witness has omitted to make the statement on facts about which he has stated before the Court in his evidence. It is very material to note that the witness has stated that he has told about the said facts to the police but why it is not mentioned, he cannot say. It is pertinent to note that this particular admission of witness is solicited from the witness after multiple questions relating to the facts about which he stated before the Court have been put to him. On our verification of the statement of witness recorded by the police, it is found that the omission is not recorded correctly. This is in the sense the witness has not omitted to state all the facts about which he stated before the Court. The omission was only in respect of the fact relating to giving blows after the victim fell. There is no omission even in respect of the fact “fallen”. It is brought to our notice by the learned Additional Public Prosecutor that in Marathi version of the deposition of this witness, he has stated that the deceased had fallen down. In fact, there is no omission relating to giving of blows by the appellant. The only omission is relating to whether the blows were given after the victim fell down. In our opinion, when there is no omission on material particulars, relating to the factum of assault on the victim by the appellant, this omission simpliciter is of no consequences at all. This omission is not sufficient to discredit the testimony of the witness when otherwise his evidence inspires confidence and presence of this witness at the place of occurrence is not disputed.

9. We have gone through the evidence of witness Munna Ramji Meshram (PW 2) who claimed in his evidence that when he came out of his house and saw that the deceased was lying in the open courtyard of his house, he saw injuries on his person and Ayodhya Prasad also came there. According to him, that time accused Shivshankar was saying, “one person killed”. He also said that he killed one person and one another person was to be killed and the appellant went away. So whatever this witness has expressed in presence of the persons who were there including witness Munna Ramji Meshram, is relied upon by the prosecution as extra-judicial confession made by the accused. We have gone through the cross-examination of this witness. So far as the said expression made by the appellant as stated by this witness in his evidence, there has been no cross-examination by the defence on this material particular. In fact, in his cross-examination, it was brought by the defence that the accused Shivshankar was there and he was shouting. The witness says that though they went but they did not catch him. He also stated that he did not ask why this incident had happened. It is further brought in his cross-examination that he was saying that he killed one person. In substance, what the witness has stated in his evidence, remained undisturbed. There is reason to accept the same as the witness has no reason to give false evidence against the appellant much less relating to the said extra-judicial confession made by the appellant.

10. The learned counsel for the appellant vehemently submitted that whatever the witness has stated relating to the expression made by the appellant cannot be accepted as extra-judicial confession by the appellant as the witness was totally a stranger and there is nothing to show that the appellant who made disclosure found the said witness to be a man of confidence. Therefore, the learned counsel submitted that the credibility of the disclosure by the appellant to this witness is doubtful. It is no doubt true that this witness is a stranger and nothing has been brought on record in the evidence of this witness to show that the accused-appellant was having confidence in this witness so as to make extra-judicial confession to him out of remorse. When it is stated that the accused person made confession to a person, the evidence of extra-judicial confession cannot be accepted without examining the credentials of the witness, without ascertaining the words used. In the case before hand, therefore, in our opinion, the claim of this witness as to extra-judicial confession alleged to have been made by the appellant cannot be accepted when it is not shown that the witness was a man of confidence vis-à-vis the appellant who has alleged to have made confession.

11. However, whatever has been disclosed by the appellant to this witness is acceptable as relevant fact forming part of same transaction as contemplated under S. 6 of the Evidence Act. As per S. 6, facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. We quote following illustration:

“A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.”

12. In the case before hand, the disclosure made by the appellant to witness Munna Ramji Meshram, in the facts and circumstances of the case when deceased was lying dead having multiple injuries on his person and the appellant was found armed with barchi when disclosed that he has killed one person and that he would kill another person is certainly a relevant fact connected with the fact in issue. This disclosure was made immediately after the occurrence in which the victim was assaulted with barchi inflicting multiple injuries on his person. Added to this, the barchi was in possession of the appellant and it was the appellant who had inflicted the blows with barchi on the person of the victim. In such circumstance, this expression is a relevant fact connected with the fact in issue.

13. In addition to this, this expression is again relevant as conduct as per S. 8 of the Evidence Act. As per S. 8 of the Evidence Act, the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. When the conduct of any person is relevant, any statement made by him which affects such conduct is relevant. It is in this context, the expression made by the appellant is relevant as a conduct incriminating in nature.

14. Thus, on the evidence on record, which we have discussed above, it is clinchingly established that the appellant committed murder of victim Prabhu Gadhave. He is found guilty for offence under S. 302 of the Penal Code. There is no reason to interfere with the judgment and order passed by the trial court. The appeal, therefore, merits no consideration and the same is dismissed.