Bombay High Court
Prakash Gajanan Gohokar (In Jail) vs The State Of Maha., Thr. P.S.O. Shirpur, ... on 9 January, 2017
Author: B.R. Gavai
Bench: B.R. Gavai
CRI.A. 130.15.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.130 OF 2015
Prakash s/o Gajanan Gohokar,
Aged about 38 years,
R/o. Murti, Tah. Wani,
District-Yavatmal.
(Presently in Central Jail) .. Appellant
.. Versus ..
The State of Maharashtra,
Through P.S.O., P.S. Shirpur,
District-Yavatmal. .. Respondent
..........
Ms. F.N. Haidari, Advocate [Appointed] for Appellant,
Mrs. P.N. Mehta, A.P.P. for Respondent-State.
..........
CORAM : B.R. GAVAI AND
KUM. INDIRA JAIN, JJ.
DATED : JANUARY 09, 2017.
ORAL JUDGMENT : (Per : KUM. INDIRA JAIN, J.)
The appellant/original accused has preferred this appeal against judgment and order dated 27.1.2015 passed by the learned Ad-hoc Additional Sessions Judge, Kelapur in Sessions Trial No.8/2012. By the said judgment and order, learned Additional Sessions Judge convicted the appellant ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:52 ::: CRI.A. 130.15.odt 2 under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life and a fine of Rs.2,000/- in- default to suffer rigorous imprisonment for 3 months. 2] Prosecution case briefly stated is as under :
a) Complainant Vilas Bonde is resident of Murti, Tahsil-Wani, District-Yavatmal. He was married to Sangita before 5-7 years of incident. Accused Prakash is resident of same village.
b) According to prosecution, accused had
an evil eye on Sangita. He used to
tease, abuse and wrongfully restrain Sangita. Two years before the incident, accused dashed Sangita without any reason and a quarrel took place between accused, complainant and his family members. A report was lodged with the police. Since then, accused was annoyed with complainant and Sangita.
c) Incident took place on 24.10.2011 between 10.00 am and 11.30 am.
Before four days of incident, accused restrained Sangita while she was passing through the road. He abused her in filthy language and threatened to kill her.
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d) On 24.10.2011 at about 10.00 am, Vilas left the house and went to his field.
Sangita was about to go to field for plucking cotton. At around 11.30 am, complainant was informed by his cousin brother that Sangita was lying on the road in injured condition. On receiving information, Vilas rushed to the spot and saw Sangita lying dead having injuries on her person.
e) Vilas lodged report to Shirpur Police Station. Crime No.52/2011 came to be registered for the offence under Section 302 of Indian Penal Code. API Mukund Kulkarni (PW-8) visited the spot and recorded spot panchanama. A cotton towel, steel can, a steel glass, red scarf, a pair of chappal, one spectacle, simple earth and earth mixed with blood were seized from the spot.
f) Inquest panchanama was drawn. The dead body was sent for postmortem to Rural Hospital, Wani. Dr. Madhuri Kamble (PW-9) was Medical Officer on duty. She performed postmortem. At the time of postmortem examination, Doctor noticed five stab wounds, two incised wounds and an abrasion. All ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:52 ::: CRI.A. 130.15.odt 4 injuries were ante-mortem. Doctor opined cause of death due to haemorrhagic shock due to stab injuries on liver.
g) The clothes of deceased were seized.
Her blood sample was collected and
preserved for analysis. Investigating
Officer recorded statements of
witnesses. He made search of accused and found him absconding. Leena Yelekar (PW-6) was the eye witness to the incident. Her statement was recorded under Section 164 of the Code of Criminal Procedure by the Judicial Magistrate, First Class, Wani.
h) Accused was arrested from slum area of
Adilabad. While he was in police
custody, he gave memorandum to
discover a knife hidden in shrub near field of one Dange situated near village boundary. Memorandum of accused was recorded in the presence of panch witnesses. In pursuance to information given by accused, knife was discovered and its seizure panchanama was drawn. The weapon was sent to Medical Officer for opinion.
i) The clothes of accused were seized from his house. Seized muddemal was ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:52 ::: CRI.A. 130.15.odt 5 sent to Forensic Laboratory. Map of spot was prepared. After receiving Chemical Analyser's report and completing investigation, charge-sheet was filed before Judicial Magistrate, First Class, Wani, who in own turn, committed the case for trial to the Court of Sessions.
3] On committal, charge came to be framed against the accused. He pleaded not guilty and claimed to be tried. The defence of accused is of total denial and false implication due to previous enmity.
4] In support of its case, prosecution examined in all nine witnesses. On going through the evidence adduced in the case, learned Additional Sessions Judge convicted and sentenced the accused, as stated in para 1 above. Hence, this appeal.
5] We have heard the learned counsel for the parties. On careful consideration of the evidence and material on record, we are of the opinion that there is no merit in the appeal for the reasons mentioned below. 6] Needless to state that in a case of murder factum of homicidal death is to be established beyond all ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:52 ::: CRI.A. 130.15.odt 6 reasonable doubt by the prosecution. PW-9 Dr. Madhuri Kamble was a Medical Officer at Rural Hospital, Wani at the relevant time. She performed postmortem on the dead body of Sangita on 24.10.2011 and found the following injuries :-
(a) Stab wound penetrating incised on right hypochondrin, spindle shape, 3½ cm x 1 cm breadth more in center. Purporates abdominal and penetrates liver, direction from above to below straight, purporates referred to injury to subtutanius tissue muscles bone.
(b) Incised wound on liver anteriorly on right lobe. 2 cm x ½ cm. There is no exit wound.
(c) Stab wound on epigastrium spindle shape, 2 cm x .5 cm, cavity deep exit wound in abdominal wall internally, 1½cm x 2.5 cm.
(d) Stab wound left hypochondria, 2 cm x ½ cm, bone deep, shape as above.
(e) Stab wound left illiac fossa, 2.5 cm x 1 cm, muscle deep.
(f) Stab wound right illiac fossa, 2 cm x 1 cm muscle deep.
(g) Incised wound left fore arm, 4 cm x ½ cm, muscle deep, Depth more in center.
(h) Abrasion on right anterosuperior illiac spine, 1 cm x ½ cm.
All these injuries were ante mortem. In the opinion of Medical Officer, cause of death was due to haemorrhagic shock due to stab injury to liver. The postmortem report is at Exh.64. Doctor opined that injuries noticed on the dead ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:52 ::: CRI.A. 130.15.odt 7 body were possible by the knife seized in the crime. The evidence of Medical Officer has remained unshaken in the cross-examination.
7] In addition to postmortem report, prosecution also relies upon inquest panchanama (Exh.18) and spot panchanama (Exh.19) proved by panch witness (PW-2) Dnyaneshwar Durge. It is evident from inquest panchanama that there were multiple injuries on the various parts of the dead body. The factual position indicated in spot panchanama makes it clear that the death in question was not natural, suicidal or accidental. Through the evidence of Medical Officer, panch witness, postmortem report, inquest panchanama and spot panchanama, prosecution has succeeded in proving that Sangita met with homicidal death. 8] So far as authorship of the accused in causing the death is concerned, prosecution case mainly revolves round the evidence of an eye witness PW-6 Leena Yelekar. She is resident of the same village. She was acquainted with the accused, complainant and Sangita. According to Leena, on 24.10.2011 at about 10.00 am, she had been to river for washing clothes. That time other ladies from the village and Sangita were present on the bank of river. Sangita told ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:53 ::: CRI.A. 130.15.odt 8 Leena that she has to go to the field for plucking cotton. Thereafter, Sangita left for home. Leena also came to her house. She had a lunch and then went to answer nature's call outside the house. She saw accused and Sangita on the road. Accused was armed with knife. It is stated by Leena that accused assaulted Sangita with knife and delivered 2-3 blows on her abdomen. The evidence of Leena also shows that Sangita cried for help loudly as " okpok okpok". Leena got frightened and immediately came home. She narrated the incident to her husband. Due to fear, she did not come out of the house on that day. In the evening, Leena came to know that Sangita died.
9] The testimony of Sangita has been assailed on three grounds : (i) she did not mention about time in her statement, (ii) she did not immediately disclose the incident and did not lodge report and (iii) she did not intervene to save Sangita.
10] The learned counsel for appellant submitted that statement of Leena was recorded after two days of the incident. No explanation has been tendered regarding the delay. She submits that being an eye witness, her statement ought to have been promptly recorded. In the absence of ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:53 ::: CRI.A. 130.15.odt 9 satisfactory explanation for delay in recording statement of Leena, it is submitted that evidence of sole eye witness is unreliable and untrustworthy. The learned counsel submits that conviction cannot be based on uncorroborated testimony of Leena. In support, reliance is placed on the decision of the Hon'ble Supreme Court in Shahid Khan .vs. State of Rajasthan (2016) 4 SCC 96).
11] In the above referred case before the Hon'ble Supreme Court, statements of eye witnesses were recorded after three days of incident and no explanation was offered. No information was available as to how police came to know that witnesses saw the occurrence. In the facts of the case, Hon'ble Supreme Court held that case against accused persons was not proved beyond reasonable doubt and conviction was reversed.
12] In the case on hand, Leena is an independent witness. She was acquainted with the accused, complainant and Sangita. She had no reason to grind an axe against the accused. Nothing substantial could be elicited in her piercing cross-examination to disbelieve her testimony. She fully supports the case of prosecution and her evidence on manner of incident is throughout consistent. We find no ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:53 ::: CRI.A. 130.15.odt 10 reason to discard the evidence of Leena and in our view, trial Court rightly placed reliance on her testimony. 13] In addition to evidence of an eye witness, prosecution has brought on record certain incriminating circumstances against the accused. PW-3 Durgesh Dhawale is the panch witness. He states that, in his presence, accused made a statement to discover a knife kept underneath the tree of chilati. Memorandum of accused was drawn in his presence. The evidence of PW-3 further shows that in pursuance to the information given by the accused, knife buried under the soil below tree of chilati was discovered. Memorandum statement (Exh.23) and discovery panchanama (Exh.24) have been duly proved by independent panch witness and the Investigating Officer. Accused did not offer any explanation to the same and this is the most incriminating circumstance established against the accused.
14] Prosecution has examined PW-4 Avinash Bonde, brother of complainant Vilas, PW-5 Ganesh Kuchankar, an independent witness and PW-1 complainant Vilas, husband of Sangita, on motive. All the three witnesses have categorically stated that accused had an evil eye on ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:53 ::: CRI.A. 130.15.odt 11 Sangita. The evidence on motive is not shattered in the cross-examination of complainant Vilas, PW-4 Avinash and PW5-Ganesh. There was previous history and on one occasion, report came to be lodged against the accused, as he was torturing Sangita and having an evil eye on her. Exh.58 and Exh.59 are self speaking to that effect. PW-1 Vilas tried to pacify accused many times, but that went in vain.
15] In the light of the above, we find sufficient evidence to prove the guilt of accused beyond all reasonable doubt and as we do not find merit in the appeal, we pass the following order :
The Criminal Appeal is dismissed.
Fees of the learned counsel appointed for the appellant are quantified at Rs.5,000/-.
(Kum. Indira Jain, J.) (B.R. Gavai, J.) Gulande, PA ::: Uploaded on - 23/01/2017 ::: Downloaded on - 27/08/2017 12:37:53 :::