LexSUBHASH MARUTI AVASARE versus STATE OF MAHARASHTRA
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A B SUB HASH MARUTI AV ASA RE v. ST A TE OF MAHARASHTRA OCTOBER 19, 2006 [S.B. SINHA AND DAL VEER BHANDARl,JJ.] Penal Code, 1860-Sections 302 and 323-Murder-By the accused and co-accused-Prosecution-Names of accused specifically mentioned by C the deceased-Prompt lodging of FIR-Recovery of knife and blood-stained clothes-Grudge of the present accused against the deceased was the motive- Conviction of all the accused under Section 302 by trial court-High Court confirmed the conviction of the present accused-Plea of alibi by the present accused-On appeal, held: In the facts of the case, conviction justified-Plea of alibi not acceptable as the same was not taken at first instance. D Evidence-Reliance on certificate issued by expert-Non-examination of the e.xpert-Effect of--Held: By mere filing of a document, its contents are not proved-Certificate issued by an expert should be brought on record by examining him. E Appellant-Accused No. 3 has been alleged to have caused death of one person along with other co-accused. On the day of incident, the deceased had gone to a doctor with his wife (PW 2) for medical check up of their son. After sometime, PW-2 came back running to the house and informed mother of the deceased (PW I) that some persons had picked up quarrel with the deceased. F PW-I ran to the spot and found the accused persons assaulting the deceased. PW-2, her husband and son-in-law also came there. On being stabbed by accused-I, deceased fell down and he was taken to the hospital by PW-I and her husband. On the way to hospital the deceased had disclosed the names of accused I and 2, and the appellant as his assailants to PSO (PW 9). According to P.W .. I appellant had been nurturing grudge against the deceased as he G had refused to offer him beer. H Trial Court, relying on the testimony of PW-I, convicted the accused under Section 302 IPC. High Court, confirmed the conviction of accused I, 2 and the appellant, while acquitted Accused Nos. 4 and 5 of the offence under 514 SUBHASH MARUTI A VASARE 1·. STA TE OF MAHARASHTRA 515 Section 302 and convicted them for offence under Section 323 IPC. A In appeal to this Court, appellant contended that P.W-1 could not have seen the incident as she could not have been informed about the same by P.W.- 2 because she being pregnant could not have covered the distance within a short time; that the grudge allegedly borne by the appellant could not be held to be sufficient for causing murder of the deceased; that absence of blood stain B on the clothes of PW-1 and her husband was material; that in view of Section 58 of Evidence Act it was not necessary for the appellant to prove the doctor's certificate having regard to the fact that he was suffering from a compound fracture and his leg was plastered and this fact was also admitted by PW-1. Dismissing the appeal, the Court HELD: 1. There is no reason to disagree with the findings of the Sessions Judge as also the High Court. The distance between the place of incident and the house of P.W.1 is said to be '5 minutes walking distance', being about c 500 ft. A lady whose husband was being assaulted, despite being pregnant, D would take the risk of running to her house and come back with her mother- in-law. Similarly, the mother of the deceased must not have lost any time to be at the place of occurrence with a view to save her son.P. W.2, it is not disputed, had accompanied the deceased as their son was ailing. When the accused persons surrounded the deceased, she being a worried person must have started running. Presence of the accused persons at the place of occurrence, E as was stated by P. W.2, cannot be said to be wholly unreliable. (518-H; 519-B; 521-DI 2. There is no reason to disbelieve the testimony of P.W.1 that the accused No.3 had been nurturing grudge against the deceased and had, thus, a motive. The families belonged to the lower strata of the society. As had been F disclosed by the deceased, P.W.1, the accused No.3 wanted to assault him then and there on his refusal to offer a bottle of beer. However, on that occasion he saved himself by running away from the place. (519-C-D( 3. Death of the deceased being homicidal in nature is not in dispute. It G has also not been disputed that the deceased was taken to the hospital by the prosecution witnesses. Only because no blood stain was found on the clothes of P.W.1 and her husband, the same by itself may no
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