Bombay High Court
Vajareya Sheleya Pawra vs The State Of Maharashtra And Anr on 11 August, 2017
Author: K.K. Sonawane
Bench: K.K. Sonawane
1 CrA-42-02-I
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 42 OF 2002
Vazareya s/o. Sheleya Pawra,
Age 35 Years, Occu. Agri.,
R/o. Shelkuicha, Chikhaltipada,
Tq. Dhadgaon, Dist.Nandurbar. .. Appellant/Accused
Versus
1. The State of Maharashtra
2. Bonda s/o. Gulab Pawra,
Age 52 years, Occu. Agri.,
R/o. Chikhaltipada, Tq.
Akrani (Dhadgaon), Dist.
Nandurbar. .. Respondents.
...
Mr. C.R.Deshpande, Advocate for the appellant.
Mr. A.P.Basarkar, APP for the respondent No.1 State.
...
CORAM : K.K. SONAWANE, J.
RESERVED ON : 06TH JUNE, 2017.
PRONOUNCED ON : 11TH AUGUST, 2017
J U D G M E N T :-
This appeal is directed against the impugned Judgment and order of conviction of the appellant-original accused under Section 307 of the Indian Penal Code (Hereinafter, referred to as 'IPC' for short) and resultant sentence of Rigorous Imprisonment for five years and to pay fine of Rs. 2,000/-, in default, to suffer further simple imprisonment for three months passed in Sessions Case No. 259 of 1998 by the learned ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 2 CrA-42-02-I Additional Sessions Judge, Shahada, Dist. Dhule. The appellant- convict preferred the present appeal taking recourse of Section 374(4) of the Code of Criminal Procedure, 1973 (Hereinafter, referred to as "Cr.P.C.").
2. The genesis of the prosecution case culled-out, in brief, as under :-
The victim Bonda Gulab Pawra was the resident of Chikhaltipada, Tahsil Akrani (Dhadgaon), District Nandurbar and eking livelihood by doing the agricultural work. It has been alleged that prior to one and half months of the incident, the mother of Bonda had been to rivulet for taking bath. She removed her silver ornaments (Veleya, Kada) and kept it aside while taking the bath. Thereafter, she returned to home without collecting the silver ornaments kept aside at the time of bath. When she realized about missing of silver ornaments, she rushed to rivulet. But, there were no any ornaments found at that place. She recollected that the father of accused, namely, Sheleya Pawara was passing from the rivulet at the relevant time. Therefore, victim Bonda and her mother had been to the father of accused namely Shelya Pawra, for inquiry about the missing silver ornaments. But, the accused Vajareya s/o. Shelya Pawara, who was present, there reprimanded the victim Bonda that when his father did not take the silver ornaments of his mother, for what reason he would venture to defame him. The accused ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 :::
3 CrA-42-02-I hurled abuses and gave threat of life to the complainant. But, the dispute came to be settled amicably.
3. Thereafter, on the day of incident i.e. 9 th March, 1993, in the night at about 10.00 to 11.00 p.m., the complainant and his sisters, namely, Ladkibai and Kamibai enjoyed the dinner and went to the house of one Malsing Pawara for celebrating the Holi festival. The other villagers were also present at the spot for jubilation. They were dancing by beating the drums. When the victim Bonda was enjoying the celebration of Holi festival, the accused Vanjareya arrived near him and exhorted that his father had not taken the silver ornaments of mother of complainant and despite the same he caused damage to his reputation, therefore, he would not spare him. The accused Vanjareya picked up the weapon axe from some distance and dealt a blow on the head of victim Bonda inflicting fatal bleeding injuries. The victim Bonda sprawled on the ground and became unconscious. The onlookers thronged at the spot. The injured Bonda was escorted to Primary Health Center for medical treatment. The information about the injured victim Bonda admitted in the hospital for bleeding injury, was passed on to the Police of Dhadgaon Police Station. Police rushed to the Primary Health Center, Dhadgaon and recorded the statement of injured Bonda for the cause of his bleeding injuries. The victim Bonda blamed the accused for his injuries.
4. Pursuant to the First Information Report (FIR) of ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 4 CrA-42-02-I victim Bonda, the concerned Police registered the Crime No. 14 of 1993 and set the penal law in motion. Investigation Officer (I.O.) visited to the spot and drawn the panchnama of scene of occurrence. I.O. collected blood stained axe, the earth smeared with blood as well as simple earth from the spot. I.O. recorded statements of witnesses acquainted with the facts of the case. He picked up accused for the sake of investigation. During the custodial interrogation, accused confessed about the crime and shown willingness to produce his blood stained cloths, which were concealed in his house. Accordingly, I.O. prepared memorandum statement of the accused in presence of panchas and proceeded to the house of accused with panchas. The accused produced his blood stains cloths in presence of panchas. I.O. recovered the same under panchnama. The seized articles were sent to the Forensic Laboratory for analysis. I.O. collected C.A. reports, injury certificate, etc. After completion of investigation, I.O. filed charge-sheet against the accused before the learned Magistrate, Dhadgaon for further process.
5. The offence levelled against the accused-appellant was exclusively triable by the Court of Sessions, therefore, learned Magistrate wisely transmitted the proceedings to the Court of Sessions at Shahada for trial of the accused-appellant, within ambit of law. After procedural formalities, learned Additional Sessions Judge framed the charge against the accused ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 5 CrA-42-02-I for the offence punishable under section 307 of the I.P.C. The accused denied the charge and pleaded not guilty. He claimed for trial. In order to bring home guilt of the accused, prosecution examined in all seven witnesses in this case and closed the evidence. The learned trial Court recorded statement of the accused under Section 313 of the Cr.P.C. and after hearing both sides arrived at the conclusion that, appellant-accused is guilty for the offence punishable under Section 307 of the I.P.C. Therefore, learned trial Court passed the impugned Judgment and order of conviction and resultant sentence as indicated above. The impugned Judgment and order of conviction and sentence is the subject-matter of the present appeal.
6. The learned counsel for the appellant-accused vehemently submitted that, the impugned Judgment and order of the learned trial Court is erroneous, illegal and contrary to the facts and circumstances of the present case. The learned trial Court did not appreciate the attending circumstances on record in its proper perspective and arrived at the incorrect decision of guilt of the accused. There are material discrepancies in the evidence of prosecution witnesses in this case. The learned counsel Shri. Deshpande explained that the PW-2 victim Bonda and his sister PW-3 Ladkibai stated that, the accused assaulted the victim Bonda by means of axe, but the injury certificate produced on record by PW-5 Dr. Patil shows that, the victim Bonda received ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 6 CrA-42-02-I CLW on left occipital region resulting fracture of skull. According to the learned counsel Shri. Deshpande, the weapon axe recovered in this case was sharp edged weapon and the injury of CLW is not possible after assaulting the victim Bonda with the weapon axe. He submitted that it would unjust and improper to draw inference that the accused instead of causing injuries to the victim by sharp blade of the axe used only it's blunt side. He relied upon the observations of Their Lordship of Apex Court in the case of Bhola Singh Vs. State of Punjab1 He further assailed that the evidence of so-called eye witnesses are cryptic and slender in nature. They failed to describe overtact of the accused in detail at the time of assault. The PW-4 Jahrya Pawara was not the eye witness, but in view of his cross-examination, he reached at the spot later-on after occurrence of the incident. There are vital discrepancies in the evidence of victim Bonda and his sister PW-3 Ladkibai. According to learned counsel, the evidence of eye-witnesses appears to be doubtful and incredulous one. Their evidence is suspicious and consequently, it is imperative to absolve the accused for the charges pitted against him. The learned counsel Shri. Deshpande also kept reliance on the expositions of law delineated by this Court in the case of Hupa @ Hupsing Wangarya Bhil Vs. State of Maharashtra 2. The learned counsel Shri. Deshpande for the appellant explained 1 AIR 1999 Supreme Court 767.
2 2001 (3) Mah LR 629.
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7 CrA-42-02-I the attending circumstances on record in detail and submitted that, the entire evidence adduced on record is not sufficient to nail the accused in this case. The conviction of the accused recorded by the learned trial Court is erroneous, illegal and perverse in nature. Therefore, he prayed to quash and set aside the findings of the conviction recorded by the learned trial Court and exonerate the appellant-accused by allowing the present appeal.
7. In refutal, the learned APP raised the objection and submitted that the learned trial Court appreciated the entire facts and circumstances in proper manner. The injury certificate (Exh.67) demonstrates that, there was a serious injury caused to the victim Bonda on the vital part of his head. The PW-5 Dr. Patil deposed that the victim Bonda was admitted in Civil Hospital, Dhule for medical treatment on 10-03-1993 and he was discharged on 25-05-1993 from the hospital. It is evident from the circumstances that the injuries inflicted to the victim Bonda was serious and fatal in nature. The PW-2 victim Bonda blamed the accused for his head injury. The PW-3 Ladkibai and PW-4 Jaharya Pawara are the eye witnesses of the incident. They stated about the overtact of the accused inflicting bleeding injury by the accused on the head of victim Bonda. According to learned prosecutor, prosecution has proved the case beyond all reasonable doubts against the accused. He submits that, the ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 8 CrA-42-02-I appellant-accused was the author of injury received to victim Bonda, and therefore, the findings of learned trial Court about the guilt of accused-appellant needs no interference.
8. I have heard the submissions canvased on behalf of both side at length. I have also delved into the record and proceedings of the Sessions Case No. 259 of 1998 as well as findings recorded by the learned trial Court. I find the arguments advanced on behalf of learned counsel Shri. Deshpande for the appellant-accused, much more sustainable and considerable one. Admittedly, the PW-2 victim Bonda Pawara and his sisters had been to the spot of incident for celebration of Holi festival during the relevant night of the incident on 10-03-1993. It has been alleged that, the accused taking umbrage of the incident of defamation of his father, on account of missing of silver ornaments of mother of victim Bonda, assaulted the victim Bonda by means of axe and inflicted fatal head injuries to him.
9. The PW-5 Dr. Patil deposed that, on 10-03-2013, he was on duty as Chief Medical Officer (CMO) in the Civil Hospital, Dhule. The injured Bonda was referred by the P.H.C. Dhadgaon for medical treatment. He clinically examined him and noticed fracture of skull as well as CLW on left occipital region of size 7cm x 1½cm x 1 cm. He further stated that, the injured victim Bonda was hospitalized since 10-03-1993 to 25-05-1993 for ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 9 CrA-42-02-I medical treatment of his head injury. According to PW-5 Dr. Patil, the CLW on occipital region as well as fracture to skull to victim Bonda would be caused by hard and blunt object. He issued medical certificate (Exh.17) and same is produced on record.
10. According to prosecution, the accused dealt a blow of axe on the head of victim Bonda and inflicted fatal injury to him. It has been alleged that, the accused was author of the injuries sustained to victim Bonda. In order to bring home guilt of the accused, prosecution examined PW-2 Bonda on record. He deposed that, in the night of 09-03-1993 after dinner he accompanied with sister Ladkibai and Kamibai went to the house of Malsing Pawara at Shelkuicha to celebrate Holi festival. In the wee hours of the night at about 4.00 a.m. accused-appellant came to him and asked why he had defamed his father. Thereafter, he took out the axe from bed-sheet (Chadar) and inflicted blow on his head. He sprawled on the ground. He was escorted to the Dhadgaon Police Station and later on admitted in the Government Hospital at Dhule. The Police of Dhadgaon Police Station recorded his statement and obtained the thumb impression on it. The F.I.R. is at (Exh.12).
11. In the cross-examination, PW-2 victim Bonda conceded that there were 2000 to 3000 denizens thronged at the scene of occurrence for celebrating Holi festival. They were dancing ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 10 CrA-42-02-I around the bonfire. His sisters Ladkibai and Kamibai were also present near him. Suddenly, accused Vazareya came from back side and gave a blow of axe on his head, and thereafter, he fallen on the ground and became unconscious. In the cross- examination, it has also brought on record that, he had not stated in his F.I.R. that when he was in a sitting gesture that time accused gave a blow of axe on his head.
12. In order to corroborate the version of victim Bonda, prosecution examined PW-3 Ladkibai, alleged eye witness of the incident. She deposed that, at the relevant time of incident at about 4.00 a.m. accused came near them and said why you defame his father and thereafter he gave the blow of axe on the head of her brother Bonda. She further testified that there was a bed-sheet (Chadar) on the person of accused Vazareya at the time of incident. In the cross-examination she stated that, when they were sitting on the ground, that time accused Vazareya came there from backside and gave blow of axe on the head of brother Bonda and ran away from the spot. She denied about any conversation in between accused Vazareya and victim Bonda, at the scene of occurrence at the time of assault.
13. The intense scrutiny of the ocular evidence of PW-2 victim Bonda and his sister PW-3 Ladakibai, both star witnesses of the prosecution, reflects that, there are vital discrepancies and ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 11 CrA-42-02-I contradiction in their evidence in regard to the actual overtact of the accused Vazareya. While PW-2 Bonda stated that, when they were standing and enjoying the celebration of Holi festival, that time accused came there and exhorted on account of defamation of his father for missing of silver ornaments. Thereafter, accused dealt a blow of axe on the head of victim Bonda. PW-3 Ladkibai stated that there was no conversation in between the accused and his brother PW-2 Bonda at the time of alleged incident of assault and accused dealt a blow of axe when they were in sitting gesture. These circumstances created clouds of doubt in the credibility and veracity of the evidence of these witnesses.
14. The prosecution has made abortive attempt to examine PW-4 Jayarya Pawara as one of the eye witness of the incident. According to prosecution, he was also present at the scene of occurrence for celebration of Holi festival. He deposed that, accused Vazareya dealt a blow of axe on the head of the victim Bonda and escaped from the spot. However, in the cross- examination, he testified that, when the jubilants were dancing by beating drums, for celebration of Holi festival, he saw denizens congregated at the spot, and thereafter, he rushed to them and saw that, victim Bonda was lying on the ground with injuries to his head. Thereafter, victim Bonda was escorted to the hospital for medical treatment. This statement of PW-4 Jayarya Pawara demonstrates that he did not receive any opportunity to ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 12 CrA-42-02-I watch the spectacle of actual assault on the victim Bonda with deadly weapon of axe by the accused. But, he reached at the scene of occurrence later on after occurrence of incident and saw the victim Bonda while sprawled on the ground. Therefore, it would hard to believe that the PW-4 Jayarya Pawara was the eye witness of the incident. It would unsafe to act upon the evidence of PW-4 for any adverse inference against the accused.
15. As referred supra, there are material discrepancies in the evidence of PW-2 Bonda and his sister PW-3 Ladakibai. Their evidence appears cryptic and slender in nature. They did not describe the overtact of the accused in detail. In contrast, it seems that, the alleged incident sustaining bleeding injury to head of the victim Bonda was occurred in the wee-hours of night on 09-03-1997 at about 10.00 a.m. and at that time the residents of village congregated for Holy festival. There are weapons axe, Dhareya, sticks in the hands of residents while dancing and beating the drums, etc. According to PW-3 Ladakibai, there was a bed-sheet (Chadar) on the person of assailant. In such circumstances, possibility of mistaken identity of accused being assailant cannot be ruled out. More over, it is also preposterous to appreciate that when the accused used the leathal weapon axe for his attempt to commit murder of the PW-2 Bonda on account of tarnishing the reputation of his father, then for what reason he used butt-end of the axe instead of ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 13 CrA-42-02-I sharp edge side of the weapon. The PW-5 Dr. Patil stated about the injuries sustained to victim Bonda by hard and blunt object and not by sharp edged weapon. In such circumstances, it is also doubtful that the weapon axe was being used for assaulting the victim PW-2 Bonda in this case. The motive for commission of crime was also found very weak and not probable. It has been alleged that the accused taking umbrage of act of defamation on account of missing of silver ornaments attacked the victim Bonda. But, it cannot be ignored that, the alleged incident of missing of silver ornaments was occurred prior to one and half months of the murderous attack. Moreover, the victim Bonda stated that the dispute was settled amicably in the village. In view of the same, it would strange to appreciate that accused would attack victim Bonda on that count of defamation of his father.
16. The scrutiny of the over all evidence adduced on record on behalf of prosecution demonstrate that, the prosecution failed to prove charges against the accused beyond all reasonable doubts. It is highly improbable that when the accused was armed with sharp edge weapon, he used butt-end or blunt side of the axe for causing injuries to victim PW-2 Bonda. The evidence of the PW-4 Jahareya Pawara appears incredulous and doubtful to consider being an eye witness of the incident. There is no any independent witness available in this case. The evidence of ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:51:40 ::: 14 CrA-42-02-I interested witnesses i.e. PW-2 Bonda and PW-3 Ladakibai is on record, but the material discrepancies caused in their evidence divested the gravity of the allegations nurtured on behalf of the prosecution against the accused. In such circumstances, I am of the opinion that the prosecution failed to prove the complicity of the accused in this crime beyond all reasonable doubt. The findings of the conviction recorded by the learned trial Court are erroneous, illegal and perverse in nature. The evidence of prosecution witnesses are dubious and not free from blemish. The prosecution evidence do not inspire confidence. There is no impediment to allow the appeal to exonerate the accused from the charges pitted against him.
17. In the result, appeal stands allowed. The impugned conviction and resultant sentence imposed on accused deserves to be upset and accordingly set aside and quashed. The accused is hereby acquitted for the offence punishable under Section 307 of the Indian Penal Code. The accused is on bail. His bail bonds shall stand cancelled. The fine amount, if any, deposited on the part of the accused be refunded to him.
18. In above terms, the appeal stands disposed of accordingly.
[ K. K. SONAWANE ] JUDGE rrd.
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