Bombay High Court
Shri Kisan S/O Bakshi Banewar vs The State Of Maharashtra on 27 February, 2014
Author: B.R.Gavai
Bench: B.R. Gavai, A.S. Chandurkar
1 apeal648.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.648 OF 2010
Shri Kisan s/o Bakshi Banewar,
aged about 35 years,
r/o Chandpur, Tahsil Tumsar,
District Bhandara. ... Appellant
- Versus -
The State of Maharashtra,
through Police Station Officer,
Police Station, Tumsar,
District Bhandara. ... Respondent
-----------------
Shri A.M. Kukade, Advocate (appointed) for the
appellant.
Shri M.K. Pathan, Additional Public Prosecutor for the
respondent.
----------------
CORAM : B.R. GAVAI AND
A.S. CHANDURKAR, JJ.
DATED : FEBRUARY 27, 2014
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2 apeal648.10
ORAL JUDGMENT (PER B.R.GAVAI, J.) :
The appellant has preferred this appeal being aggrieved by the judgment and order dated 6/4/2010 passed by the learned Sessions Judge, Bhandara in Sessions Trial No. 57/2008, thereby convicting the appellant for the offence punishable under Section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.500/-, in default to suffer further rigorous imprisonment for 15 days.
2) The prosecution case, in brief, is as under :
Accused Kisan and deceased Ramratan were residents of village Chandpur. Their houses were situated at the distance of about 200 feet from each other. Prior to occurrence of the incident, there was a Gram Panchayat election. Deceased Ramratan was supporting Munna Raut and Ranjana Raut whereas accused was supporting Jaswant Hinge and Benubai ::: Downloaded on - 11/03/2014 22:52:50 ::: 3 apeal648.10 Lanje. During the course of election, quarrel took place between accused and deceased Ramratan. At that time, accused had given a threat to deceased Ramratan.
3) On 16/4/2008, at about 10.30 a.m., deceased Ramratan wasig standing in front of house of Jaswantabai Sahare. At that time, accused came near deceased Ramratan and inflicted injuries by iron chopper on his neck and left shoulder. P.W.3 Kejram intervened and tried to rescue deceased Ramratan.
As such, he also sustained an injury. Due to assault, deceased Ramratan fell on the ground. P.W.2 Tarabai informed about the incident to P.W.1 Anjanabai, wife of deceased Ramratan. P.W.1 Anjanabai went to the spot and noticed that her husband was lying on the road.
He was taken to the Hospital in a Jeep and in the Hospital, he was declared dead. Thereafter, P.W.1 Anjanabai lodged a report with Police Station, Sihora, on the basis of which Crime No.25/2008 came to be ::: Downloaded on - 11/03/2014 22:52:50 ::: 4 apeal648.10 registered for the offence punishable under Section 302 of Indian Penal Code. The accused was immediately arrested.
4) After completion of investigation, a charge-
sheet came to be filed in the Court of learned Judicial Magistrate, First Class, Tumsar.
ig Since the case was exclusively triable by the Sessions Court, it came to be committed to the Sessions Court. A charge came to be framed against the accused for the offence punishable under Section 302 of Indian Penal Code. At the conclusion of the trial, the learned Sessions Judge passed an order of conviction and sentence, as aforesaid. Being aggrieved thereby, the appellant has preferred the present appeal.
5) Shri Kukade, learned Counsel for the appellant, submits that all the prosecution witnesses are interested witnesses and, therefore, their testimonies are not free from doubt. It is contended ::: Downloaded on - 11/03/2014 22:52:50 ::: 5 apeal648.10 that conviction of the appellant is based only on the basis of evidence of interested witnesses and as such, the same is not sustainable. It is submitted that the criminal appeal deserves to be allowed and accused needs to be acquitted.
6) On the other hand, Shri Pathan, learned Additional Public Prosecutor for the respondent, submits that the prosecution has proved its case beyond reasonable doubt. It is contended that apart from the evidence of eye witnesses, there is recovery of the weapon used in the crime on a memorandum of the accused under Section 27 of the Indian Evidence Act. It is further submitted that report of Chemical Analyser also corroborates the prosecution case. It is, therefore, submitted that the criminal appeal is without any merit and liable to be dismissed.
7) With the assistance of the learned Counsel for the parties, we have scrutinised the evidence on ::: Downloaded on - 11/03/2014 22:52:50 ::: 6 apeal648.10 record.
P.W.1 Anjanabai, wife of deceased Ramratan, is the first informant. However, she is not an eye witness to the incident. Her evidence would be relevant only insofar as motive of the crime is concerned. She states about dispute between deceased Ramratan and accused on account of Gram Panchayat elections, which were held earlier. Insofar as actual incident is concerned, she states that on the day of incident, at about 10.30 a.m., Tarabai rushed to her house and informed her that accused had assaulted Bhauji (deceased) by iron chopper. She narrates that thereafter she rushed to the place of incident, noticed deceased Ramratan lying on the road and took him to the Hospital. Ramratan was declared dead in the Hospital and thereafter she lodged first information report. However, her testimony and the first information report registered at her behest can be used to corroborate the evidence of eye witnesses.
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8) P.W. 2 Tarabai states in her evidence that on the day of incident, when she was returning to her house at about 10 a.m., she noticed that accused and deceased Ramratan were standing near the house of Jaswantabai. They were talking about something. She further states that she saw accused assaulting deceased Ramratan by iron chopper on left side of neck. At that time, Kejram intervened in the matter and tried to rescue deceased Ramratan. The accused ran away along with iron chopper.
Though this witness was sought to be cross-
examined and a suggestion was given that the incident took place between her husband and deceased Ramratan, nothing damaging could be elicited in her evidence.
9) P.W.3 Kejram also states that deceased Ramratan was standing near the house of Jaswantabai.
He noticed that the accused was proceeding by road.
He halted near Ramratan. This witness was just ::: Downloaded on - 11/03/2014 22:52:50 ::: 8 apeal648.10 behind the accused. The accused collected iron chopper from his waist and inflicted two chopper blows on the neck of deceased Ramratan. This witness intervened and tried to stop the accused from assaulting deceased Ramratan. When he was trying to stop the accused, he sustained injury by chopper on his little finger of right hand.
ig He also deposes
regarding presence of Tarabai on the spot. Though
this witness was thoroughly cross-examined, nothing damaging could be brought on record in his evidence.
P.W.9 Dr. Manish Khobragade examined P.W.3 Kejram and found laceration on right little finger on proximal phalynx 2 x 0.5 cm. He has also given opinion that the injury was possible by iron chopper, which was recovered form the accused. It can thus be seen that P.W.3 Kejram is an injured witness and, therefore, his presence on the spot cannot be disputed.
10) P.W.6 Jaswantabai is another eye witness.
She states that when she was standing in front of her ::: Downloaded on - 11/03/2014 22:52:50 ::: 9 apeal648.10 house, she saw accused coming on the spot, collecting iron chopper from his waist and inflicting blows by iron chopper on the left side neck of deceased Ramratan.
She also states that P.W.3 Kejram came on the spot and intervened. She further states that again accused gave chopper blow on the neck of deceased Ramratan.
She also states that after inflicting injuries, accused ran away. She deposes regarding presence of Tarabai.
It is also stated by her that on account of intervention, P.W.3 Kejram sustained an injury. This witness has also been thoroughly cross-examined, however, nothing damaging has come in her evidence.
11) P.W.7 Sugrathabai deposes that when she was doing work in field, she saw accused holding blood stained iron chopper in his hand. Thereafter when she went near the house of Jaswantabai, Jaswantabai informed her about the incident and accused running away with blood stained iron chopper in his hand. This witness has also been cross-examined extensively, ::: Downloaded on - 11/03/2014 22:52:50 ::: 10 apeal648.10 however, nothing damaging has come in her evidence.
12) It can thus be seen that the the ocular testimony of P.W. 3 Kejram, who is an injured eye witness so also ocular testimonies of P.W. 2 Tarabai and P.W.6 Jaswantabai clearly indicate that these witnesses have witnessed the accused assaulting deceased Ramratan with iron chopper. Not only that, when P.W.3 Kejram tried to intervene to save deceased Ramratan, he also sustained an injury. The ocular testimonies of these witnesses along with evidence of P.W.1 Anjanabai and P.W.7 Sugratabai, in our considered view, show that prosecution has proved beyond reasonable doubt that deceased Ramratan was assaulted by iron chopper by the accused. Not only this, the motive for committing the crime, i.e. previous enmity on account of dispute in the election, is also brought on record.
13) Apart from the ocular testimonies, the ::: Downloaded on - 11/03/2014 22:52:50 ::: 11 apeal648.10 prosecution has also brought on record other circumstantial evidence to corroborate its case.
Insofar as recovery of weapon used in the crime in question is concerned, memorandum below Exh.44 has been proved by the Investigating Officer Ku. Shweta (P.W.12). No doubt, the panch witnesses have turned hostile.
ig However, we find that from the
evidence of the Investigating Officer, the said
memorandum stands duly proved. On the
memorandum of accused, the iron chopper used in the crime was seized from the field of one Umesh Raut, which was hidden beneath the fodder. It is further to be noted that the accused was arrested on the same day of incident. While being arrested, his clothes were also seized. The Chemical Analyser's report shows that blood group of deceased Ramratan was "AB". It has further been found that the weapon, which was seized on the memorandum of the accused under Section 27 of Indian Evidence Act was having blood of group "AB". It can further be seen that even the ::: Downloaded on - 11/03/2014 22:52:50 ::: 12 apeal648.10 clothes, which were seized from the accused, were also found to have blood of "AB" group.
14) In that view of the matter, we find that the prosecution on the basis of ocular testimonies of eye witnesses and other witnesses corroborating their evidence so also other circumstantial evidence like recovery of the weapon used in the crime on the memorandum of the accused under Section 27 of the Indian Evidence Act and the Chemical Analyser's report finding blood of group "AB" of the deceased on the weapon recovered on the memorandum of the accused under Section 27 of Indian Evidence Act and the clothes of the accused, has proved beyond reasonable doubt that it is the accused, who has caused death of Ramratan.
15) P.W.8 Dr. Nitin Misurkar has found the following external as well as internal injuries on the body of deceased Ramratan :
::: Downloaded on - 11/03/2014 22:52:50 :::13 apeal648.10 External injuries "1) Incised wound deep on left side of neck below skull started from just in front of left pinna of ear upto middle of occiput. Underlying muscles, vessels exposed deep upto skull with some part of skull bone avulsed 12x5x3 cms.
2) Incised wound on left side neck, horizontal 8x3x3 cms. 5 cms. below the first wound. Muscles blood vessels exposed.
3) Incised wound on left shoulder 7x3x2 cms.
Horizontal acromion process of clavicle cut."
Internal injuries "1) Left part of scalp exposed at temporal and occipital area. Skull bone exposes.
2) Fracture of skull bone on temporo occipital area, horizontal, linear, left side."
16) Taking into consideration the nature of injuries, the weapon used and the previous enmity, it can safely be concluded that the appellant/accused has assaulted deceased Ramratan by a deadly weapon with premeditation to cause his death. In that view of the matter, we find that conviction of the appellant/ accused under Section 302 of Indian Penal Code does ::: Downloaded on - 11/03/2014 22:52:50 ::: 14 apeal648.10 not warrant any interference.
17) In the result, the criminal appeal is dismissed.
Fees payable to the learned Counsel appointed to appear on behalf of the appellant are quantified at rupees five thousand.
JUDGE
ig JUDGE
khj
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