1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 213 OF 2009
Charansing @ Chnya s/o Indersing Kadewale
Age 36 years, Occ. Nil
at present in Central Jail Nasik
R/o. Tirupati Nagar, Dhanegaon
Tq. and District Nanded ...Appellant
Versus
The State of Maharashtra
Through Police Station Nanded (Rural)
District Nanded
(Copy to be served on .Public
Prosecutor, High Court at Bombay
Bench at Aurangabad) ..Respondent
.....
Smt. Bharti B. Gunjal, advocate for the appellant (appointed)
Mr. N.R. Shaikh, A.P.P. for respondent
.....
CORAM: S.B. DESHMUKH &
S.S. SHINDE, JJ.
DATE OF RESERVATION
OF JUDGMENT : 11.08.2010
DATE OF PRONOUNCEMENT
OF JUDGMENT : 13.08.2010
JUDGMENT (PER SHINDE, J.)
1 This appeal is filed challenging the final judgment and order
dated 28.11.2008, passed by the Additonal Sessions Judge, Nanded
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in Sessions Case. No. 76 of 2008, by which the appellant-accused is
convicted for the offence punishable under Section 302 of IPC and is
sentenced to undergo R.I. for life and to pay a fine of Rs.1000/-, i/d to
undergo further S.I. for two months.
2 The brief facts of the case are as under:-
One Sunita Pawar, PW 1, daughter-in-law of Vitthal Pawar
(hereinafter for the sake of brevity referred to as the ‘deceased”)
resides at Tirupatinagar, Dhanegaon alongwith her family members
i.e. her husband, brother-in-law, mother-in-law. The appellant
(accused) Charansingh resides near house of PW 1 Sunita. Accused
owns a auto rickshaw. At the time of Dasara festival, Ankush, brother-
in-law of PW 1 Sunita, had taken the Auto Rickshaw of accused for
plying. While running the said Rickshaw by Ankush, the rickshaw met
with an accident and it got damaged. Accused had demanded an
amount of Rs.4000/- towards the damage caused to the Rickshaw
from deceased. Part amount of Rs.2000/- was given to the accused.
However, accused all the while was raising quarrel on account of
balance amount of Rs.2000/- and was threatening of dire
consequences.
On 6.1.2008, in the evening time, deceased, PW 1 Sunita, her
mother-in-law Gangabai (PW 4) and father-in-law Vitthal, were at their
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house. Accused came to their house armed with a knife and
demanded Rs.2000/- from deceased. He was abusing the deceased.
PW 1 and PW 4 requested the accused not to raise quarrel. Accused
was convinced and sent back. After some time, again accused came
to the house of PW 1 Sunita with a “Katti” and he gave a blow of Katti
on the left side of chest of deceased. Due to which deceased
sustained injury. PW 1 Sunita and PW 4 Gangabai shouted loudly
saying that deceased was assaulted by accused. On hearing this,
neighbours gathered at the spot of incident. Meanwhile, husband and
brother in law of Sunita returned to the house. Deceased was lying on
the ground. The police came to the spot and deceased was taken to
the hospital. They also took the accused to another Rural hospital for
treatment. PW 1 Sunita lodged the complaint Exh.18 to police station,
Nanded (Rural) alleging that accused committed murder of her father-
in-law Vitthal Pawar by Katti.
The Police of Rural police station, Nanded registered crime for
the offence punishable under Section 302 of I.P.C. and P.S.I. Haribhau
Rathod, PW 8 took over the investigation. Inquest panchnama Exh.24
was drawn on the dead body of Vitthal was referred to post mortem
examination. PW8 Mr. Rathod, visited the place of occurrence and
prepared the spot panchnama Exh.20. Katti was lying on the spot and
blood stained soil and simple soil were seized from the place of
occurrence. Statement of witnesses were recorded. The blood stained
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clothes were seized at Exh.31. After post mortem examination, all
seized articles were sent to the office of Chemical analyzer
Aurangabad for analysis and report is submitted. Office copy of the
report is at Exh.32. On receiving the post mortem report and on
completion of investigation, PW 8 submitted the charge sheet against
the accused and registered the offence under section 302 of I.P.C. and
Section 4/25 of the Arms Act and under Section 135 of Bombay Police
Act to the Court of learned J.M.F.C. Nanded. Since the offence under
Section 302 of I.P.C. is exclusively triable by the Court of Sessions,
the learned J.M.F.C. committed the case to the Court of Sessions at
Nanded vide Section 209 of Cr.P.C. Charges at Exh.13 has been
framed against the accused for the offence punishable under section
302 of I.P.C. and Section 4/25 of the Arms Act and Section 135 of
Bombay Police Act. Charges were read out and explained to the
accused. He pleaded not guilty. Plea of the accused has been
recorded at Exh.14. The defence of the accused was that of total
denial. According to him, he is falsely implicated in the case as he had
filed a complaint against husband of PW 1 for the offence punishable
under section 307 of I.P.C. Accused did not adduce any evidence in
his defence.
The learned Sessions Judge, after hearing the parties and after
recording the evidence, has convicted the appellant-accused
Charansingh for the offence punishable under section 302 of I.P.C.
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and sentenced him to suffer R.I. for life and to pay fine of Rs.1000/-, i/d
to undergo further S.I. for two months.
3 Learned counsel appearing for the appellant-accused
(appointed) submitted that evidence of PW 1 and PW 4, who claim to
be eye witnesses, suffers from material contradictions. Both these
witnesses are interested witnesses and their evidence cannot be relied
upon and the same should not have been taken into consideration.
One of the witness stated that weapon used for commission of alleged
offence is manufactured by the family of the witnesses as they being
blacksmith. However, another witness does not say so. Therefore, in
respectful submission of the counsel for the appellant, the evidence of
PW 1 and PW 4 is not reliable. It is further submitted that though
independent witnesses were available, however those were not cross
examined by the prosecution. Panch witness on the inquest
panchnama has not supported the prosecution case. It is further
submitted that between narration made in the complaint and evidence
led before the Court by PW 1, there are material contradictions. It is
further submitted that one Parubai had given information to the Police
Officer and the said information itself should have been construed as
First Information Report, and in view of the information given by
Parubai, first in time, by telephonic message to the police, the
complaint lodged by PW 1 Sunita could not have been considered. It is
further submitted that in statement under Section 313 of Cr.P.C., the
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accused stated that since he has lodged complaint against the
husband of P.W.1 Sunita, the complaint in question filed against him is
false. Learned counsel further submitted that the evidence of eye
witnesses is required to be scrutinized minutely by this Court. In
support of her contention, learned counsel for the appellant placed
reliance on the reported judgment of this Court in the case of Badam
Singh Vs. State of Madhya Pradesh, reported in AIR 2004 SC 26
and more particularly para 16 of the said judgment to contend that
merely because the eye witnesses have deposed in favour of the
prosecution, that itself is not sufficient to upheld the conviction unless
their evidence is scrutinized minutely. Learned counsel further
submitted that looking into the nature of injuries and quarrel took place
between the appellant and deceased, the case in hand is not covered
under section 300 of I.P.C. According to the learned counsel, looking
to the facts of entire incident, the injuries sustained by the deceased
and the complaint filed by the appellant accused against the husband
of PW 1, the case of the appellant would fall under one of the
exception of Section 300 of I.P.C. In support of her contention she
placed reliance on the reported judgment of this Court in the case of
Pappu @ Hari Om Vs. State of Madhya Pradesh, reported in 2009
ALL MR (Cri) 2181 (S.C.) and also the judgment of the Hon’ble
Supreme Court in the case of Ramesh Kumar Toni Vs. State of
Haryana, reported in 2009 (13) SCC 401. Learned counsel invited
our attention to the evidence of PW 1, PW 4, PW 8 and the Evidence
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of Medical Officer and submitted that the appellant is entitled for
benefit of doubt Therefore, learned counsel would submit that the
impugned judgment and order may be set aside and the accused
appellant should be acquitted from the charges levelled against him.
4 On the other hand, learned A.P.P. appearing for the State
placed reliance on the evidence of PW 1 and PW 4 and submitted that
there is direct evidence in the matter in the nature of eye witnesses,
Medical evidence corroborates with the version of eye witnesses, and
therefore, the case in hand squarely falls under Section 300 and the
trial court has rightly convicted the appellant under Section 302 of
I.P.C. It is further submitted that merely because the other witnesses
are not examined by the prosecution would not affect the prosecution
case. Learned A.P.P. further submitted that other neighbouring
witnesses had come on the spot after hearing the shouts of PW 1 and
PW 4. PW 1 and PW 4 being family members of deceased have
witnessed the incident and therefore, their evidence is important.
Learned A.P.P. also invited our attention to the post mortem report and
submitted that if the injuries mentioned in column Nos 17 and 20 are
taken into consideration, it is clear that the injuries are on vital part.
Learned A.P.P. further submitted that there are more than one injury.
The appellant accused came prepared and therefore, he does not
deserve any leniency. Learned A.P.P. therefore, would submit that the
appeal is devoid of any merit and the same be dismissed.
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5 With the assistance of the learned counsel appearing for the
appellant and the learned A.P.P. for the respondent-State, we have
seen entire evidence brought on record. The date of incident is
6.1.2008. The incident has occurred at the evening time. The
appellant, who is original accused is Charansingh @ Chanya s/o
Indersingh Kadewale. The name of victim is Vitthal Kashinath Pawar.
The complaint is lodged by PW 1 Sunita on 6.1.2008 which is at Exh.
18. Prosecution has examined other witnesses. PW 1 Sunita Ramesh
Pawar, who is complainant. PW 2 is Bhagwan Vyankatrao Shinde,
who is panch witness, PW 3 is Harcharansingh Inshwarsingh Khalsa,
who is also panch witness. PW 4 is Gangabai Vitthal Pawar, wife of
deceased Vitthal Pawar. PW 5 is Shri Basare who is also treated as
panch witness. PW 6 Balaji Kashiram Pawar blacksmith. PW 7 Dr.
Madhukar Kashinath Hatte, Medical Officer, PW 8 Haribhau Patru
Rathod. We find that the defence which is taken by the accused is
that he filed complaint against the husband of PW 1 and therefore, a
false complaint has been filed against him. PW 1 Sunita Ramesh
Pawar in her examination in chief has stated that deceased was her
father-in-law. The family was residing together consisting herself, her
husband, mother-in-law, deceased father-in-law and her son. He
further deposed that she knows the accused present before the Court.
House of the accused is adjacent to her house. Ankush, is brother of
her husband. Accused was plying auto rickshaw. On the date of
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Dasara, accused parked his rickshaw near her house. Anuksh was
plying the said rickshaw. Rickshaw was dashed. Ankush sustained
injury due to dash. Rickshaw was also got damaged. Accused was
demanding an amount of Rs.4000/- towards the costs of damages.
Despite the amount of Rs.1000/- was paid, the accused was
demanding Rs.4000/- and on account of that he was raising quarrel
with her father-in-law on account of non payment of the same amount.
6
On the date of the incident, her in-laws returned to home, from
Wajegaon. They all were present in the house. It was about 7.00 p.m.
The accused came there holding a Khanjar with him and he came to
their house with that Khanjar and demanded the amount. But
deceased requested him not to raise quarrel and that the amount
would be paid on one or other day. Accused was convinced and was
returned to his house. However, after some time, accused again came
to the house of this witness with a Katti. Her father-in-law was in the
house. Accused gave blows of Katti on the chest of father-in-law of
PW 1. Father-in-law sustained bleeding injures. It is further stated
that she herself and PW 4 raised shouts. On hearing the shouts,
neighbours gathered at the spot of incident. One lady amongst the
persons gathered on the spot, who is residing in neighborhood had
informed the police on which police came to the spot. This witness
took her father in law to the hospital. This witness called to the police
from hospital and lodged report. This witness has identified the thumb
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mark on the report which was shown to her. She has stated that the
contents of the report was read over to her and same are true and
correct. She further stated that said report is at Exh.18. Her father-in-
law expired in the hospital. The dead body was thereafter referred to
the post mortem examination. This witness has stated that she can
identify the “Katti” if shows to her. According to her, father-in-law died
due to Katti blow given by the accused. She has categorically stated
that the accused had committed murder of her father-in-law. The
dispute was on account of amount of damages caused to the
Rickshaw of the appellant-accused. This witness has identified the
weapon ‘Katti’ used by the accused at the time of incident and clothes
of her father-in-law, which were on his person at the time of incident.
Katti (Article 1), Shirt (Article 4), banyan (Article 5), under pant (Article
6) and pant (article 7) were shown to her and she had identified them.
(Emphasis supplied).
In her cross examination, she has specifically denied the
suggestion that her husband had assaulted the accused with knife or
Khanjir. She has specifically denied that her husband was holding the
Katti at the time of this incident. She has specifically denied that her
husband was not present at the spot at the time of scuffle between
accused and her father-in-law. He reached the spot immediately after
the incident. The evidence of this witness has remained intact in the
cross examination.
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7 PW 2 Bhagwan Shinde, who is witness to the panchnama of
spot, seizure of Katti and soil from the spot of incident. He has denied
the suggestion in cross examination that panchnama was already
written by police, before he reached to the spot. He specifically stated
that the panchnama at Exh.20 was prepared in his presence.
The evidence of P.W.3 is at Exh.21. This witness has not
supported the prosecution story.
8 Evidence of P.W.4, Gangabai Vitthal Pawar is at Exh.22. In her
examination in chief, she stated that her husband Vitthal Pawar was
blacksmith. Ramesh, Pralhad and Ankush are her sons. She had
identified the accused, who was present before the Court. She has
further stated that the accused resides near her house. According to
this witness, incident occurred before Dasara festival. According to
this witness her husband (deceased) took auto rickshaw of accused
for her son Ankush. Auto Rickshaw was taken from accused prior to
Dasara festival. Auto Rickshaw met with an accident and therefore,
the same was damaged. The accused was demanding an amount of
Rs.4000/-. This witness further stated that she had given an amount of
Rs.1000/- and also given her marriage string (Mangalsutra) to the
accused. Accused, even thereafter continued to demand the amount
towards damages and was abusing the family members of this
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witness. It is further stated that the accused again came to their house
and was demanding Rs.1,400/-. The amount of Rs.1,400/- was paid to
the accused and requested him to put the end to the dispute.
She further stated that on the date of incident, accused came to
the house of this witness in the evening at about 6.00 p.m. Accused
was demanding money from her husband. Accused was having a
knife in his hand. This witness and other family members requested
the accused and drove out him from their house. Accused went to his
house and again came from his house with a Katti. This witness has
further deposed that the accused gave a blow of Katti on the left
shoulder of her husband and another blow on left side of chest of her
husband. Her husband fell down. He sustained bleeding injuries.
This witness has further stated that the neighbourer informed the
police on telephone. Police came to the spot. Her husband was taken
to the hospital. This witness has further stated that she can identify
Katti, if shown to her. (Emphasis supplied).
In the cross examination of this witness, nothing has been
brought on record by the defence so as to disbelieve the evidence of
this witness, careful perusal of the cross examination of this witness
would show that her evidence in examination in chief has not shattered
in any way in the cross examination.
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9 The evidence of PW 5 Shrihari Bhaurao Solanke, is at Exh.23.
This witness has stated that he saw the dead body of his father-in-law.
The clothes from the person of that dead body were stained with
blood. There was bleeding injury on the left side of the chest and left
shoulder near the neck. The police prepared panchnama. He put his
thumb mark on the said panchnama. This witness has stated that the
panchnama was read over to him is the same. Contents of the same
are true and correct. The panchnama is at Exh.24. Nothing has been
brought on record in the cross examination by the defence so as to
disbelieve the evidence of this witness.
10 Evidence of P.W.6 Balaji Kashiram Pawar is at Exh.25. He has
stated in his examination in chief that deceased Vitthal was his
brother. He was residing at Tirupati Nagar. He knew the accused
present before the court. He resides near the house of Vitthal Pawar.
Vitthal was also black smith and he has four sons. He received
message on telephone about the death of Vitthal. He went to the spot
at Tirupatinagar and saw the pool of blood at the spot. He saw the
dead body of Vitthal in the hospital. The evidence of this witness
supports the contention of the prosecution about the death of
deceased and spot of incident. This witness has also stated before
the Court that the wife of his brother told him that she had paid Rs.
2000/- to Rs.3000/- to the appellant, towards the damages caused to
his rickshaw.
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11 The evidence of PW 7 Dr. Madhukar Kashinathrao Hatte is at
Exh.27. He performed post mortem examination between 7.00 a.m. to
8.00 a.m. on 8.1.2008. On examination he found following external
injuries on the person of Vitthal Pawar:
i) Stab injury over upper part of left chest anteriorly, 9 cms x
3 cms x 15 cms in dimension, spindle shaped, caused due to
pointed doubled edged weapon. Age of injury was within 24hours.
ii) Fracture of third rib anteriorly,
iii) Left hemothorax, 2.8 ltr. blood
iv) Left lung was punctured. The wound was in apical lobe,
collapse of left lung.
v) Pericardium was punctured at left side. Heart punctured,
wound in left atrium.
In para 3 of his evidence, this witness has stated that,”in my
opinion, the cause of death is shock due to hemothorax and injuries to
lung and heart . He has further stated that post mortem report shown
to him before the court bears his signature. The contents thereof are
true and correct and post mortem report is at Exh.28. He has also
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15issued provisional certificate about the cause of death. The said
certificate is at Exh.29. He has further deposed that, “the injury shown
in column No.17 of post mortem report is possible by means of Katti, if
it is sharp. The said injuries is possible by means of Katti (Article 1),
now shown to me.” In his cross examination, nothing has been
brought on record by the defence so as to disbelieve the evidence of
this witness. (Emphasis supplied).
We have also noticed that the injuries mentioned in column No.
17 of the post mortem report. It is stab injury over upper part of left
chest anteriorly, 9 cms x 3 cms x 15 cms in dimension, spindle
shaped, caused due to pointed doubled edged weapon. Age of injury
was within 24 hours.
We have also carefully perused the injuries mentioned in column
No.20 of post mortem report, which are as follows:-
i) Fracture of 3rd rib anteriorly,
i) Left hemothorax, 2.8 ltr. blood
iii) Left lung was punctured. The wound was in apical lobe,
collapse of left lung.
iv) Punctured, wound in left atrium.
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The post mortem report shows that the probable cause of death
is, “shock due to haemothorax and injuries to lung and
heart” (Emphasis supplied).
12 The evidence of PW 8 Haribhau Patru Rathod, is at Exh.30. In
his examination in chief, he stated that he received the investigation of
crime No. 7 of 2008 from Police Station, Nanded (Rural) on 7.1.2008.
Inquest panchnama was drawn in the hospital. Inquest panchnama at
Exh.24 shown to him before the Court, is the same, which bears his
signature and those of panch witnesses. He further stated that he
visited the place of occurrence and prepared the spot panchnama. He
further stated that it was at Tirupati Nagar, Dhanegaon. He further
stated that one blood stained Katti was lying on the spot. It was seized.
Similarly, there were blood stains on the ground and therefore, the
blood stained soil and simple soil were seized from the spot. Spot
panchnama Exh.20 shown to him is the same. Katti (Article 1) shown
to him is the same which was seized from the spot. This witness has
further stated that the blood stained clothes of deceased were seized
after post mortem examination. Katti, blood stained clothes, blood
stained soil and the simple soil were sent to office of C.A. Aurangabad
for analysis and report. Seizure panchnama of the clothes bears his
signature and those of panch witnesses. Contents thereof are true and
correct. The panchnama is at Exh.31. The blood stained clothes
Articles 4, 5, 6 and 7 shown to him are the same. This witness has
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further stated that office copy of the letter addressed to C.A.
Aurangabad bears his signature and the said letter is at Exh.32. It is
further stated that he recorded the statements of the witnesses.
Postmortem report was received by him from Medical Officer. The
accused was arrested and he is the same person who was present
before the court. This witness has further stated that after completion
of investigation charge sheet was filed. This witness has specifically
stated that on investigation it is transpired that the accused committed
murder of Vitthal Pawar by means of Katti due to dispute on account of
payment of damages caused to auto rickshaw of the appellant-
accused. We have also seen the cross examination of this witness.
On behalf of the defence, nothing has been brought on record by the
defence so as to disbelieve the evidence of this witness.
13 With the assistance of the learned counsel appearing for the
appellant as well as the learned A.P.P. we have carefully gone through
the impugned judgment of the trial Court. The learned Sessions Judge
in para Nos. 14 to 17 has taken into consideration the evidence of PW
1, PW 4 and PW 6. The learned Judge has observed in the said
paragraphs that merely because PW 1 and PW 4 are relatives of the
deceased, the same cannot be a ground to disbelieve and discard
their testimony. It is further observed that at the most, on this count,
the evidence is to be appreciated with due care and caution. The trial
court has accepted the evidence of PW 1 and PW 4. The trial court in
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para 21, has considered the submissions of the counsel for the
defence that other independent witnesses are not examined by the
prosecution. The trial court has recorded that neighbourers Parubai,
Maruti Sakhare, Kokarebai, Dnyaneshwar, Sonarinbai and others
came to the spot after shouting by Sunita and Gangabai. The court
has further observed that it is not the prosecution case that these
neighbourers witnessed the accused while actually giving Katti blow to
deceased but as per the prospection case they came to the spot after
accused gave Katti blow to deceased and after shouting by Sunita.
The trial Court held that death of deceased Vitthal was homicidal.
We have independently considered the evidence including the
statement of PW 1, PW 4, PW 8 and the evidence of Medical Officer.
We have also carefully perused the other evidence brought on record
including post mortem report. The Medical evidence unequivocally
indicate that the death of deceased was homicidal. The Trial court has
elaborately discussed about the said aspect and we fully endorse the
finding of the trial court on that aspect.
14 The evidence of PW 1, complainant, Sunita in respect of
happening of actual incident is concerned, she stated that on the day
of incident, her in law returned to home from Wajegaon. It was about
7.00 p.m. the accused was holding Khanjir with him, came to their
house with that Khanjir. Accused had demanded amount but the
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father-in-law (deceased) requested him not to raise quarrel and that
amount would be paid on one or the other day. Accused was
convinced and was sent back to his house. In para 3 of examination in
chief, this witness stated that, ” After some time accused again came
to our house with a Katti. My father-in-law was in the house. Accused
gave blow of Katti on the chest of my father-in-law. My father in law
sustained bleeding injuries. One woman from neighbourhood informed
the police on which police came to the spot”. Therefore, the evidence
of this witness who has witnessed the incident herself, finds support
from the evidence of PW 4, who is also eye witness and wife of
deceased Vitthal.
15 PW 4 Gangabai stated about the actual incident, in her
examination in chief, she has stated that, “on the day of incident the
accused came our house in the evening at about 6.00 p.m. The
accused was demanding money from my husband. Accused was
holding a knife. We requested the accused and drove out him from our
house. Accused went to his house and again came to my house with a
Katti. Accused gave blow of Katti on the left shoulder of my husband
and another blow on left side chest of my husband. My husband fell
down. My husband sustained bleeding injuries. The neighbour
informed to police on telephone. Police came to the spot. My husband
was taken to the hospital.” (Emphasis supplied).
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If the evidence of these two eye witnesses PW 1 and PW 4 is
taken into consideration coupled with the Medical Evidence, it
unequivocally record that the appellant accused alone is responsible
for the death of deceased Vitthal. Both the witnesses are eye
witnesses to the incident. Their presence at the spot is natural since
the complainant is daughter-in-law of deceased and PW 4 is Gangabai
is wife of deceased Vitthal. On careful reading of evidence of PW 1
and PW 4, coupled with medical evidence the prosecution has
established its case against the appellant beyond reasonable doubt.
The appellant accused on the date of incident at about 6.00 p.m. had
been to the house of the deceased. The deceased and family
members had convinced the accused and told him that they will pay
the remaining amount. It has also come in the evidence of PW 4 that
accused was demanding Rs.4000/- towards the damages of auto
rickshaw and she gave amount of Rs.1000/- and her marriage string
to the accused. The accused went back to his house and again came
back to the house of deceased at about 7.00 p.m. With weapon Katti,
which is double edged sharp weapon. Therefore, there is no manner of
doubt that the accused appellant had come fully prepared with an
intention to commit murder of Vitthal Pawar. The manner in which the
accused assaulted the deceased and the injuries which were inflicted
on the deceased by the accused on vital parts of the body
unequivocally lead to the conclusion that the accused appellant had
full intention to commit the murder of deceased. The Medical evidence
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supports the prosecution case. The injuries mentioned in column No.
17 and 20 of the post mortem report clearly suggest that the accused
had intention to commit murder of deceased. Injuries mentioned in
column No.17 is near chest i.e. On vital part. It is pertinent to mention
that PW 4 in her evidence has stated, “My marriage string
(Mangalsutra) was given to accused.” It would not be out of place to
mention that marriage string (mangalsutra) is a sacred and cherished
ornament of the Indian woman. Inspite of the payment being made,
the accused again came to the house fully prepared with the weapon
Katti and assaulted deceased, which resulted in to the death of
deceased. (Emphasis supplied).
16 The prosecution has also examined PW 8 Haribhau Patru
Rathod, who was PSI at Nanded police station at the relevant time.
Inquest panchnama Exh.24 was drawn by him. Recovery and seizure
of blood stained Katti from the spot, sample of blood stained soil and
simple soil was seized by this witness from the spot. Spot panchnama
Exh.20 has been proved by the prosecution through this witness. This
witness has also identified Katti (Article 1) which was seized from the
spot. This witness had also seized blood stained clothe of deceased
and other articles which were sent to the C.A. The evidence of this
witness has not shattered in the cross examination.
17 We have carefully perused the statement of accused appellant
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recorded under Section 313 of Cr.P.C. in reply to question No.18. The
accused has stated that, since he has filed complaint against the
husband of the complainant under Section 307 of IPC, he is falsely
implicated in the case. On our careful perusal of entire evidence on
record, we do not see that the said defence taken by the appellant
has brought on record anywhere or for that purpose no material has
been placed on record. On perusal of cross examination of the
prosecution witnesses, it is revealed that the defence has not asked
any question or given any suggestion in respect of filing any complaint
against the husband of the complainant. There is also nothing in the
cross examination of PW 8 suggesting him that accused appellant had
also sustained injuries. In short the defence has failed to bring
anything on record in respect of complaint filed by him against the
husband of the complainant. In absence of that we find it difficult to
look into that aspect. We have carefully perused the impugned
judgment and we do not find such defence taken by the accused and
evidence brought on record in that regard.
Though the counsel for the appellant has strenuously argued
that there are contradictions in the evidence of eye witnesses,
however, in cross examination the defence has not succeeded to bring
it on record. On the contrary, eye witnesses have reiterated in the
cross examination what they have stated in the examination-in-chief.
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18 Coming to the argument advanced by the counsel appearing for
the appellant that this court should minutely scrutinize the evidence of
eye witnesses and evidence of eye witnesses cannot be accepted as it
is without scrutinizing it minutely is concerned, we find that the
presence of PW 1 and PW 4 at the spot of incident was natural and
there is no manner of doubt that they have witnessed the actual
incident. We have carefully perused the evidence of PW 1 and PW 4
and on our independent scrutiny we find it wholly reliable. Therefore, in
the facts and circumstances of tis case, reliance placed by the counsel
for the appellant on reported judgment of Hon’ble Supreme Court in
the case of Badam Singh (supra) is wholly misplaced.
As stated herein above, we have carefully perused the evidence
of prosecution witnesses including the evidence of PW 1 and PW 4
who are eye witnesses to the incident, we find that their presence on
the spot was natural. The judgment which is cited by the counsel for
the appellant is on different facts. In that case the Apex Court had
expressed its opinion about the presence of eye witnesses at the spot
of incident. In the present case, since PW 1 is daughter-in-law of the
deceased and PW 4 is wife of deceased, their presence at the spot
was natural that too in the evening time between 6.00 p.m. to 7.00
p.m. We have carefully considered the submissions of the counsel for
the appellant about alleged contradictions in the evidence of
prosecution witnesses, however, we are not impressed by said
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submission.
19 The next argument advanced by the counsel for the appellant is
that since PW 1 and PW 4 are interested witnesses is concerned, the
Hon’ble Supreme Court time and again observed that the evidence of
eye witnesses cannot be discarded merely on the ground that they are
relatives or interested witnesses. We need not burden our judgment by
referring those judgments, since it is well established by this time that
the evidence of eye witnesses though they are relatives or interested
witnesses, can safely be relied upon if it is trustworthy.
20 The next argument of counsel for the appellant is that the
accused had no intention to commit murder of deceased and
therefore, his case would fall under one of the exception of Section
300 of I.P.C. and ultimately conviction would be under Section 304
Part I or Part-II. In our opinion, it is not the case that there was
sudden quarrel or there was sudden fight and the accused appellant
was provoked to assault the deceased. In fact the evidence of PW 1
and PW 4 clearly shows that the accused came prepared with weapon
at about 6.00 p.m. However, the deceased and family members
persuaded him and assured him to pay the remaining amount and on
that he returned to his house. Again at 7.00 p.m. accused again came
to the house of the deceased, prepared, having a weapon i.e. Katti in
his hand, which is sharp edged weapon. Therefore, he had full
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intention to assault the deceased and to commit murder of deceased,
and same has been reflected from his act and further from the injuries
found on the body of deceased. In the circumstances, we do not find
any force in the submission of the counsel for the appellant that the
case of the appellant accused would fall under Section 304 Part-I or
Part-II. Accused appellant had intention to commit murder of
deceased and with that intention he had been to the house of the
deceased and had assaulted on vital parts of the deceased.
Therefore, taking into consideration entire evidence brought on record
by the prosecution and taking into consideration the findings recorded
by the trial court, we do not find any case for interference.
21 The argument of the counsel for the appellant that the witnesses
who are residing in neighborhood are not examined by the prosecution
is concerned, we find that PW 1 and PW 4 have witnessed the actual
incident and shouted and thereafter the other witnesses have arrived
at the scene of offence. In our view, non examination of other
witnesses would not affect the prosecution case. Therefore, we do not
find any force in the said argument.
22 Therefore, on careful perusal of the entire evidence brought on
record, and after appreciating the rival submissions advanced on
behalf of the counsel for the appellant and learned A.P.P. we are of
the considered opinion that the appeal sans merit.
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23 In the facts and circumstances of this case, in our opinion, the
trial court has properly appreciated the evidence brought on record.
After appreciation of entire evidence on record and after giving full
opportunity to the respective parties, the trial court has convicted and
sentenced the appellant-accused. We do not see any infirmity and
perversity in the findings recorded by the trial Court. Therefore, this
appeal is devoid of any merits and same stands dismissed.
24 We appreciate the assistance rendered by Advocate Smt. Bharti
B. Gunjal, who is appointed as amicus curiae to represent the cause of
the appellant in the present appeal. We quantify an amount of Rs.
3000/- towards her legal fees and expenses for conducting this appeal.
25 Registry is directed to forward a copy of this judgment, free of
costs, to the appellant-accused, through the competent jail authority,
within a week from today.
*****
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