Bombay High Court
Uttam S/O. Tukaram Kudmethe (In Jail) vs The State Of Maharashtra Thr. P.S.O. ... on 28 February, 2018
Author: M.G. Giratkar
Bench: R. K. Deshpande, M. G. Giratkar
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THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 16 OF 2017
Uttam S/o Tukaram Kudmethe
(prisoner no. 4892)
Age : 55 years, Occ. : Nil
R/o. Lasina, Tah. District : Yavatmal.
(At present in Central Prison, Amravati) ... Appellant
VERSUS
The State of Maharashtra,
Through P.S.O. Ladkhed
Police Station, Yavatmal. ... Respondent
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Shri R. D. Hajare, Advocate for the appellant (appointed)
Ms. H. N. Jaipurkar, Additional Public Prosecutor for the respondent
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CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
Date of reserving the judgment : 01/02/2018.
Date of pronouncing the judgment : 28/02/2018.
Judgment (Per : M.G. Giratkar, J)
Appellant assailed the judgment of conviction awarded by
learned Additional Sessions Judge, Darwha for the offence punishable
under Section 302 of the Indian Penal Code and sentenced to suffer
imprisonment for life and to pay fine of Rs. 1000/- in default to suffer
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simple imprisonment for three months.
2. The case of the prosecution against appellant in short is as
under.
(i) Appellant was always having quarrel with his cousin brother
Ashok and deceased. Appellant was alleging that his cousin brother
Ashok who was Peon in Gram Panchayat concealed some documents in
respect of allotment of house to him. On the day of incident, appellant
went to the office of Gram Panchayat. He directed his cousin brother
Ashok to leave the office of Gram Panchayat. He wanted to damage the
articles in the Gram Panchayat. Accused was having one pointed object.
P.W. 8 Ashok came to his house. He narrated incident to his wife. At
that time, he heard noise of quarrel. P.W. 8 Ashok is handicapped
person. He could not immediately reached to the spot of incident. His
wife, mother and his daughter went towards the spot of incident. P.W. 8
Ashok followed them.
(ii) P.W. 2, her mother-in-law and daughter reached to the spot
of incident. They saw verbal quarrel was going on between appellant
and deceased Arun. Appellant was having one spear. Appellant gave
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one blow of spear on the head of deceased Arun. Deceased fell down.
Again appellant stabbed deceased on his abdomen.
(iii) P.W. 2 with her husband and some villagers taken the
deceased to the Government Hospital, Yavatmal. Deceased succumbed
to injuries during treatment. P.W. 2 lodged report in the police station
on 25-8-2015 at about 9.30 a.m. Crime was registered against the
appellant. API Randhir investigated the crime. PSI Waghule carried out
some part of investigation. He visited the spot of incident, prepared spot
panchanama, Exhibit 25, seized weapon iron rod/pipe having spear like
shape as per seizure panchanama, Exhibit 27 and arrested the accused.
(iv) P.W. 13 Randhir recorded statements of witnesses. After
complete investigation, charge-sheet was filed before the Judicial
Magistrate First Class, Darwha and same was committed to the Court of
Additional Sessions Judge, Darwha for trial.
(v) Charge was framed at Exhibit 2. Same was readover and
explained to the appellant. He pleaded not guilty and claimed to be
tried.
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(vi) The prosecution has examined following witnesses.
(1) P.W. 1 Sau. Suman Balaji Mankar (Exhibit 14)
(2) P.W. 2 Sau. Kamlabai Ashokrao Kudmethe (Exhibit 15)
(3) P.W. 3 Sukhlal Ramu Rathod (Exhibit 18)
(4) P.W. 4 Sau. Sapana Vijendra Tekam (Exhibit 20)
(5) P.W. 5 Kawadu Mahadeo Madkam (Exhibit 21)
(6) P.W. 6 Raju Madhukar Rathod (Exhibit 22)
(7) P.W. 7 Sk. Rehan Sk. Usman (Exhibit 24)
(8) P.W. 8 Ashok Sakharam Kudmethe (Exhibit 31)
(9) P.W. 9 Smt. Kausalyabai Sakharam Kudmethe (Exhibit 32)
(10) P.W. 10 Bhaurao Chandrabhan Tale (Exhibit 35)
(11) P.W. 11 Shri Ambadas Laxmanrao Kawre (Exhibit 36)
(12) P.W. 12 Dr. Kranti Sunderrao Raut (Exhibit 38)
(13) P.W. 13 Naresh Ramesh Randhir (Exhibit 42) and
(14) P.W. 14 Ravi Baijnathrao Waghule (Exhibit 51)
(vii) Learned trial Court recorded statement of accused under Section
313 of Code of Criminal Procedure. After hearing the prosecution and
defence, learned trial Court convicted the appellant for the offence
punishable under Section 302 of the Indian Penal Code and hence, the
present appeal.
3. Heard learned counsel Shri Hajare for the appellant. He
has submitted that weapon of offence which was seized by police is not
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proved. P.W. 4 not identified the weapon shown to her before the
Court. Witnesses are interested for the conviction of appellant. There
was enmity between the appellant and material witnesses. Their
evidence is not reliable. Independent witnesses are not examined by the
prosecution. Blood was not found on the seized weapon as per C.A.
report. There is a delay of 21 Hours for lodging the report. Learned
trial Court not considered the material evidence and wrongly convicted
the appellant.
4. In support of his submissions, learned counsel for the
appellant has pointed out judgment in the case of Raju Laxman Pardhe
Vs. State of Maharashtra reported in 2015 ALL MR (Cri) 2196.
Learned counsel has submitted that there are material omissions and
contradictions, therefore, witnesses are not reliable. At last, he
submitted that the appeal be allowed and appellant be acquitted for the
offence punishable under Section 302 of the Indian Penal Code.
5. Heard Ms. Jaipurkar, learned Additional Public Prosecutor
for the respondent. She has submitted that P.W. 2, P.W. 4, P.W. 8 and
P.W. 9 are the eye witnesses of the incident. Deceased was the real
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brother of P.W. 8 Ashok. Appellant was always quarreled with P.W. 8
saying that he had concealed some documents of Gram Panchayat. On
the day of incident, appellant went to the office of Gram Panchayat and
threatened P.W. 8. P.W. 8 came to his house. He narrated the incident
to his wife (P.W. 2).
6. Learned Additional Public Prosecutor has submitted that
appellant quarreled with deceased who was real brother of P.W. 8.
Appellant was having iron rod/pipe having shape like spear. He gave
blow of that weapon on the head of deceased. When deceased fell
down, he again gave blow of spear on the abdomen of deceased.
P.W. 2 - complainant along with her mother-in-law rushed to the spot of
incident and saw the incident of quarrel between the appellant and
deceased. They saw the incident of causing injury by appellant.
7. Learned Additional Public Prosecutor has submitted that
their evidence is corroborated by the medical evidence. As per the
evidence of Medical Officer, she noticed two major injuries on the
person of deceased i.e. one injury on head and other on abdomen.
Deceased died in the hospital at Yavatmal.
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8. Learned Additional Public Prosecutor has submitted that
prosecution has proved the guilt of accused beyond all reasonable doubt.
There is direct evidence of trustworthy witnesses regarding the
commission of crime. Nothing is brought on record to show that
appellant is falsely involved. Cross-examination of the witnesses show
that false defence is taken by the appellant. Not a single omission or
contradiction is brought on record in evidence of any of the witnesses.
Their evidence is trustworthy regarding the commission of crime,
therefore, motive to commit offence loses its relevance. In support of
her submission she pointed out decision in the case of Bipin Kumar
Mondal Vs. State of West Bengal reported in 2010 (12) SCC 91.
9. P.W. 1, P.W. 3 and P.W. 10 who were Sarpanch, Deputy
Sarpanch and Police Patil of Village Lasina have stated in their evidence
that appellant had been to the Gram Panchayat Office along with axe.
He damaged furniture of Gram Panchayat. Report of that incident was
lodged with the police. This incident was prior to the incident in this
case. P.W. 13 API Shri Randhir has stated in his evidence that "during
investigation, it was transpired that on 8-1-2015 accused had committed
mischief by damaging the furniture of the office of Gram Panchayat,
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Lasina and said matter is pending before the Court. The copy of the FIR
was collected. The extract of crime register bears his signature and it is
at Exhibit 48."
10. The incident stated by above witnesses clearly show that
appellant used to go to the office of Gram Panchayat and used to
threaten the office bearers of Gram Panchayat. This evidence
corroborates the evidence of P.W. 8 Ashok who is the cousin brother of
appellant. As per his evidence, on the day of incident, appellant had
been to Gram Panchayat office having a rod/pipe in his hand. He asked
him to remove himself from that office. Therefore, P.W. 8 returned to
his house.
11. P.W. 8 has stated in his evidence that he returned to his
house and narrated the incident to his wife. At that time, he heard noise
of quarrel, therefore, his wife and mother went out of the house. He
being a handicapped person could not rush to the spot of incident
immediately. When he reached there, he saw that his brother Arun was
having injuries over his head and abdomen.
12. P.W. 2 wife of P.W.8 has stated in her evidence that her
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husband P. W. 8 returned to the house at about 1.30 p.m. He told her
that appellant had been to Gram Panchayat Office and asked him to go
out of the office as he wanted to damage the premises. At that time they
heard the noise of quarrel. Therefore, she and her mother-in-law rushed
towards the spot. There is a house of one Kawadu at a distance of 100
feet from her house. They saw verbal quarrel was going on between the
appellant and Arun. Appellant was armed with spear. He gave blow of
spear on the head of Arun. Arun fell down on the ground. Thereafter
accused gave another blow of spear on the abdomen of Arun. She
raised alarm. Villagers gathered there. P.W. 2, her husband brought
one minidor and taken deceased to the hospital at Yavatmal. He died
during treatment.
13. P.W. 4 has stated in her evidence that she was at the house
of her parents for delivery. At about 1.00 p.m. on the day of incident,
her father Ashok returned from Gram Panchayat. He told that appellant
had quarreled with him. At about 1.30 p.m., she heard hue and cry
towards the road. Therefore, her mother and grandmother rushed
towards the spot. She also followed them. She saw appellant assaulting
her uncle Arun by iron rod on his head. He again gave blow of iron rod
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on the stomach of his uncle when he fell down.
14. P.W. 9 mother of deceased has stated that she was present
in the house. At about 2.00 p.m., she heard the quarrel. She rushed to
the spot. She saw appellant gave blow of iron rod on the head of Arun
and thereafter gave blow of rod on his abdomen. Therefore, Arun died
in the hospital.
15. From the cross-examination of material witnesses, namely,
P.W. Kamlabai P.W. 4 Sapana and P.W. 8 Ashok, it appears that accused
had taken defence that P.W. 8 Ashok had quarreled with the appellant.
He was under the influence of liquor. He tried to give blow of iron rod/
spear to the appellant. When deceased Arun intervened, accidentally
that spear struck to him. All these witnesses denied this suggestion.
Except this suggestion, nothing is brought on record in the cross-
examination of any of the material witnesses to point out any omission
or contradiction.
16. P.W. 9 has stated in her cross-examination that when she
reached to the spot of incident, at that time, Arun was lying on the
ground. This particular evidence is not sufficient to disbelieve the
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evidence of other material witnesses. Evidence of P.W. 2, P.W. 4 and
P.W. 8 clearly show that appellant had quarreled with deceased.
Appellant was having weapon like spear. He gave two blows on the
person of deceased. Appellant gave one blow on the head of deceased.
When appellant fell down on the ground, he gave another blow on the
abdomen of deceased.
17. This material evidence is corroborated by Medical Officer
Dr. Kranti Raut (P.W. 12). She has stated in her evidence that on
25-8-2015, she had conducted postmortem on the dead body of
deceased Arun Sakharam Kudmethe. She found following injuries.
(a) Lacerated Wound over left high parietal region, obliquely
placed having size of 5.5 cm x 2.5 cm x scalp deep with irregular
margins.
(b) Stab injury over epigastric region, horizontally placed
having size of 4 cm x 1 cm x cavity deep, on approximation 4.2 cm
in length with lateral angle acute and medical angle obtuse with
clear cut margins. This injury was 11.5 cm below the right nipple
and 6 cm above the umbilicus and 97 cm above right medial
melleolus. It was directed downwards, inward and laterally.
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(c) Contusion over anterio medial surface of 1/3 rd of left leg,
irregularly placed of size 4 cm x 2cm. On cut section blood
infulteration seen in undelying tissue.
(d) Intravenus puncture marks over left cubital fosa (as part of
treatment).
On internal examination of the dead body, we found under
scalp contusion over left high parietal region of size 6 cm x 4 cm
reddish in colour corresponding to injury no. 1 stated above.
There was evidence of stab injury to greater omentum,
mesentry of transverse column and ascending column, with clear
cut margins and reddish in colour. This injury was corresponding
to injury no. 2 stated above.
18. As per the opinion of the Medical Officer, injury no. 2
mentioned in column no. 17 and corresponding injury mentioned in
column no. 20 of postmortem report, Exhibit 39 were sufficient to cause
death of a person in ordinary course of nature. Deceased died due to
shock and hemorrhage following stab injury over abdomen. Major
injuries were on head and abdomen. P.W. 2 and P.W. 4 have not made
any exaggeration. They have stated that appellant gave blow of iron
rod/pipe (spear) on the head of deceased. Deceased fell down.
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Thereafter appellant gave blow of that weapon on the abdomen.
19. Evidence of eye witnesses also corroborated by seizure of
weapon. As per the evidence of P.W. 7, clothes of deceased and accused
were seized in his presence. C.A. reports are at Exhibit Nos. 11 to 13. As
per the Exhibit 11, Exhibit 1, 2, 3, 5 and 9 were having human blood.
Exhibit 1, 3, 5 and 9 stained with blood of group 'A'. Blood group of
deceased not determined. Blood group of accused/appellant also not
determined.
20. C.A. reports do not show the blood on weapon but weapon
was examined by the Medical Officer, P.W. 12. She has stated in her
evidence that on 5-10-2015, she received query letter from the
Investigating Officer along with weapon. On examination of weapon,
they/panel of doctors opined that injury nos. 1 to 3 in column no. 17 of
postmortem report were possible by the said weapon. Accordingly, they
have given their opinion vide Exhibit 40. She has identified the weapon,
Article 'C' before the Court was the same weapon which she had
examined.
21. Evidence of P.W. 2, P.W. 4, P.W. 8 and P.W. 9 is well
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supported by the evidence of Medical Officer, P.W. 12. From the perusal
of cross-examination of material witnesses, nothing is brought on record
to disbelieve their testimonies.
22. Learned counsel Shri Hajare relied on the decision in the
case of Raju Laxman Pardhe Vs. State of Maharashtra (cited supra).
The facts in the cited decision was very much different. The material
eye witness whose statement was recorded by the Investigating Officer
was not examined by the prosecution. Therefore, he was called by the
defence. This material witness has stated in his evidence that there was
a scuffle between deceased and accused persons. Deceased himself was
having gupti. He grappled with accused no. 1. They both fell down and
gupti in the hands of deceased struck to his own chest. Therefore,
Division Bench of this Court come to the conclusion that the so called
eye witnesses were interested and therefore, their evidence was not
relied on. In the present case, nothing is brought on record in the cross-
examination of any of the eye witnesses. Not a single omission or
contradiction is brought on record. Therefore, there is no reason to
disbelieve their evidence.
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23. In the case of Bipin Kumar Mondal Vs. State of West
Bengal (cited supra), Hon'ble Supreme Court has observed as under :
Indian Penal Code, 1860 - Section 302, 307, 323 - murder of wife
- attempt to murder - motive - PW 1 lodged Ejahar stating that
his father - appellant came to their house at about midnight and
attacked his mother and younger brother with a knife and inflicted
severe injuries on them - conviction upheld by High Court on
ground that prosecution proved its case beyond reasonable doubt
- issue of motive becomes irrelevant when there is direct evidence
of a trustworthy witness regarding commission of crime -
particularly when a son and other closely related persons depose
against appellant, proof of motive by direct evidence loses its
relevance - ocular evidence of P.W. 1 supported by medical
evidence - nothing on record to show that there could be any
reason for PW 1, son of appellant, to falsely implicate his father for
murder or other witnesses - nothing on record to show that
appellant had received any grave or sudden provocation from
victims or that appellant had lost his power of self control from any
action of either of victims - accused liable to be convicted for
murder.
24. Cross-examination of P.W. 2, P.W. 4, P.W. 8 and P.W. 9
show that nothing is brought in their cross-examination to disbelieve
their versions. They are eye witnesses of the incident. Whole cross-
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examination revealed that suggestions were given to the witnesses that
P.W. 8 quarreled with the appellants. He went to the house. He was
under the influence of liquor, brought the spear like iron rod/pipe and
tried to stab the appellant/accused. When deceased Arun intervened,
accidentally, stabbed to him. This particular suggestions were denied by
all the witnesses. Moreover, it was not possible for P.W. 8 to attack the
appellant because P.W. 8 has stated in his evidence that he is a
handicapped person and, therefore, he could not rush to the spot
immediately. This particular evidence is not denied by the defence.
Hence, it is clear the false defence was taken by the appellant.
25. The evidence of eye witnesses, more particularly, P.W. 2,
P.W. 4, P.W. 8 and P.W. 9 proved that appellant quarreled with
deceased Arun and killed him by iron rod/pipe (spear). Their evidence
is supported by Medical Officer. As per her evidence she found two
major injuries which resulted death.
26. Learned counsel for the appellant pointed out the report
lodged by P.W. 2 and submitted that there is delay of near about 21
Hours. It is pertinent to note that P.W. 2 is the wife of P.W. 8. Her
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husband P.W. 8 is a handicapped person. Incident took place at about
1.30 - 2.00 p.m. She with the help of other villagers and her husband
taken the deceased to the Government Hospital, Yavatmal. In the
hospital, deceased died. On the next day i.e. on 25-8-2015 early in the
morning at about 9.30 a.m., she lodged report in the Police Station.
Real brother of her husband died and, therefore, she must be in a
sorrow state of condition and therefore, this delay is not fatal.
27. Prosecution has established by cogent evidence of eye
witnesses that appellant quarreled with deceased Arun, gave blow of
iron pipe/spear on the head and then to stomach of deceased. This
evidence is well corroborated by the evidence of Medical Officer
(P.W. 12). There is nothing on record to show that eye witnesses have
falsely implicated the appellant.
28. Evidence of respectable persons of the village, namely,
Police Patil, Deputy Sarpanch, Sarpanch show that appellant had
damaged the articles of Gram Panchayat. This show the conduct of
appellant. It also corroborates with the evidence of P.W. 2 and P.W. 8.
P.W. 2 and P.W. 8 have stated that appellant was quarreling with P.W. 8
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alleging that he had concealed some material documents of Gram
Panchayat in respect of allotment of house to the appellant. Appellant
was demanding the land where the house of P.W. 8 is situated.
Therefore, appellant had a grudge with P.W. 8 and his deceased brother.
29. Evidence adduced by the prosecution is trustworthy, cogent
and reliable. Learned trial Court appreciated all the material evidence
and rightly convicted the appellant. Hence, we find no merit in the
appeal. Therefore, we proceed to pass the following order.
ORDER
(i) The appeal is dismissed with no order as to costs.
(ii) R & P be sent back to the trial Court.
(iii) Fees of the learned counsel Shri R. D. Hajare appointed by the Legal Services Authority is quantified at Rs. 5,000/-.
JUDGE JUDGE
wasnik
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