{"id":31238,"date":"2010-10-29T00:00:00","date_gmt":"2010-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jayawant-chimanrao-kapre-vs-the-state-of-maharashtra-on-29-october-2010"},"modified":"2015-05-02T03:29:09","modified_gmt":"2015-05-01T21:59:09","slug":"jayawant-chimanrao-kapre-vs-the-state-of-maharashtra-on-29-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jayawant-chimanrao-kapre-vs-the-state-of-maharashtra-on-29-october-2010","title":{"rendered":"Jayawant Chimanrao Kapre vs The State Of Maharashtra on 29 October, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Jayawant Chimanrao Kapre vs The State Of Maharashtra on 29 October, 2010<\/div>\n
Bench: D.D. Sinha, A.P. Bhangale<\/div>\n
                                           1\n\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                           APPELLATE SIDE\n\n\n\n\n                                                                              \n                    CRIMINAL APPEAL NO. 75 OF 1989\n\n\n\n\n                                                      \n    1.    Jayawant Chimanrao Kapre         ]\n          aged 30,                         ]\n    2.    Gulab Shivaji Kapre,             ]\n\n\n\n\n                                                     \n          aged 19 years.                   ]\n    3.    Kundalik Nivrutti Kapre          ]\n          aged 25 years                    ]\n    4.    Manik Mahadev Kapre              ]\n          age 25 years                     ]\n\n\n\n\n                                              \n    5.    Balu alias Sudam Kapre           ]\n          age 26 years      ig             ]\n    6.    Dattatraya Sadashiv Khedekar     ]\n          age 18 years                     ]\n                          \n    7.    Vinayak Sahebrao Kapre           ]\n          age 20 years                     ]\n    8.    Hanumant Sahebrao Kapre          ]\n          age 20 years                     ]\n    9.    Ashok Ankush Kapre               ]\n           \n\n\n          age 20 years                     ]\n    10.   Trimbak Rambhau Kapre            ]\n        \n\n\n\n          age 35 years,                    ]\n          All Agriculturists,        ]\n          residing at Nazare Supe,         ]..Appellants\n\n\n\n\n\n          Taluka Purandare,                ](Original Accused\n          District : Pune                  ]Nos. 1,7,8,9,10,13,16\n          (at present in Central Prison)   ]18,19 & 21)\n\n                  versus\n\n\n\n\n\n    The State of Maharashtra               ]..Respondents\n\n\n    Mr. R. R. Bhonsale for Appellants.\n\n    Mr. S. S. Pednekar - Additional Public Prosecutor          for Respondents -\n    State.\n\n\n\n\n                                                      ::: Downloaded on - 09\/06\/2013 16:35:33 :::\n                                             2\n\n                           CORAM : D. D. SINHA AND A. P. BHANGALE, JJ.\n<\/pre>\n
                              Date of Reserving the Judgment : 20.10.2010<\/p>\n
                              Date of Pronouncing the Judgment : 29.10.2010<\/p>\n
    JUDGMENT : (Per : D. D. Sinha, J.)<\/p>\n
    1.    Heard the learned counsel for the appellants Jayawant Kapre, Balu<\/p>\n
    alias Sudam Kapre and Trimbak Rambhau Kapre and the learned Additional<\/p>\n
    Public Prosecutor for the respondents – State.\n<\/p>\n
    2.<\/p>\n
          The Criminal Appeal is directed against the Judgment and Order<\/p>\n
    dated 12th January 1989 passed by the Additional Sessions Judge, Pune,<\/p>\n
    whereby the appellant      Jayawant came to be convicted for the offence<\/p>\n
    punishable under Section 302 of the Indian Penal Code and sentenced to<\/p>\n
    suffer R.I. for life. Accused Jayawant, Balu and Trimbak were convicted<\/p>\n
    under Section 147, 148, 149, 247 and 325 and sentenced to suffer R.I. for<\/p>\n
    five years and were also directed to pay a fine of Rs.1,000\/- each, in default<\/p>\n
    to suffer R.I.   for six months. Accused      Jayawant and Balu were also<\/p>\n
    convicted along with other co-accused for the offence punishable under<\/p>\n
    Section 147, 148, 149, 447 and 323 of the Indian Penal Code and were<\/p>\n
    sentenced to suffer R.I. for six months and to pay a fine of Rs.1,000\/- each,<\/p>\n
    in default to suffer R.I. for three months.\n<\/p>\n
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\n                                           3<\/span><\/p>\n
    3.    In the instant case many accused were prosecuted, out of which<\/p>\n
    accused No.1 Jayawant was convicted for the offence of murder and other 9<\/p>\n
    accused were convicted for different offences. All the 10 accused preferred<\/p>\n
    the present appeal against the judgment and order passed by the trial court<\/p>\n
    dated 12th January 1989. During the pendency of the appeal, this Court<\/p>\n
    allowed criminal application No. 1364 of 2005 and permitted compounding<\/p>\n
    of offence in so far appellant nos. 2, 3, 4, 6, 7, 8 and 9 are concerned and<\/p>\n
    therefore criminal appeal to that extent stands disposed of. The present<\/p>\n
    appeal now is only by the appellant no. 1 Jayawant, appellant no. 5 Balu<\/p>\n
    and appellant no. 10 Trimbak.\n<\/p>\n
    4.    The prosecution case in nutshell is as follows:-\n<\/p>\n
          The incident took pace on 18th December 1986 at 2.30 p.m. in the<\/p>\n
    field known as “Shericha Mala” situate at Village Nazare Supe. The said<\/p>\n
    field was owned by deceased Bajirao Yeshwant Kapre. On the date of the<\/p>\n
    incident the election of Upsarpanch of Grampanchayat was scheduled. The<\/p>\n
    election ended smoothly.        Subhash Shivram Kapre was elected as<\/p>\n
    Upsarpanch of Grampanchayat Nazare Supe. The entire village was divided<\/p>\n
    in two rival factions, one group was led by Congress-I and the another was<\/p>\n
    led by Janata Party. Deceased Bajirao Kapre, Upsarpanch Subhash Kapre<\/p>\n
    were strong supporters of Janata party. The motion of vote of no confidence<\/p>\n
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\n                                          4<\/span><\/p>\n
    was brought against Upsarpanch by the Members of Congress-I group but it<\/p>\n
    did not succeed. Their efforts to remove Upsarpanch were not successful<\/p>\n
    and therefore they had an axe to grind against the Members of Janata Party.\n<\/p>\n
    Sarpanch deceased Bajirao Kapre, UPsarpanch Subhash Kapre and Jaising<\/p>\n
    Kapre were in the field known as “Shericha Mala”. It is the prosecution case<\/p>\n
    that at that time accused Jayawant Kapre gave a blow with the iron bar on<\/p>\n
    the head of Bajirao who fell down as a result of the blow. Upsarpanch<\/p>\n
    Subhash was assaulted by accused Jayawant by the same iron bar who also<\/p>\n
    fell down. Thereafter accused Trimbak beat Subhash by iron bar. The<\/p>\n
    accused Trimbak also participated in the assault.     Shivaji Kapre (P.W. 1)<\/p>\n
    witnessed the incident from the short distance. He was in the field<\/p>\n
    collecting the fodder and after seeing the incident he raised alarm. Some of<\/p>\n
    the accused persons on hearing his shouts rushed towards him. He therefore<\/p>\n
    ran away from the field. It is the case of the prosecution that Shivaji Kapre<\/p>\n
    (P.W. 1) was with the injured persons i.e. deceased Bajirao, Jaising, Subhash<\/p>\n
    and Laxman at the relevant time.      Bajirao and Subhash were severally<\/p>\n
    injured. All of them were lying in the pool of blood. After some time two<\/p>\n
    police personnel arrived on the spot. They stopped the truck which was<\/p>\n
    going by the nearby road loaded with the sugarcane. They put injured<\/p>\n
    Bajirao, Subhash and Jaising in the said trucks. Shivaji and Laxman also<\/p>\n
    boarded the said truck. The truck was brought to Jejuri Municipal Hospital.\n<\/p>\n
    Doctor who was on duty at the hospital, examined Bajirao and declared him<\/p>\n
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\n                                          5<\/span><\/p>\n
    dead. Subhash and Jaising were        unconscious. They were referred to<\/p>\n
    Sassoon Hospital, Pune for proper medical care and treatment. Police took<\/p>\n
    them to the Sassoon Hospital. Chandrakant, Bajirao and Appa were also<\/p>\n
    brought there. The First Information Report was lodged by Shivaji, Exhibit<\/p>\n
    41. On the basis of this report, offence was registered against the accused<\/p>\n
    persons. During the course of investigation, the statements of witnesses<\/p>\n
    were recorded. Accused were arrested. Pursuant to Memorandum statements<\/p>\n
    discovery was effected. During the course of investigation dying<\/p>\n
    declarations of injured Subhash and Jaising were recorded. Dr. Waghmare<\/p>\n
    conducted post-mortem      examination on the dead body of Bajirao. On<\/p>\n
    completion of investigation, charge was framed against the appellants and<\/p>\n
    same was explained to them. The appellants pleaded not guilty and claimed<\/p>\n
    to be tried.\n<\/p>\n
    5.     The learned counsel for the appellants has submitted that evidence of<\/p>\n
    injured eye witnesses i.e. P.W. 2 Jaising Kapre, P.W. 5 Subhash Kapre and<\/p>\n
    P.W. 7 Mahadeo Kapre contains omissions, improvements, contradictions in<\/p>\n
    respect of material particulars of the prosecution case. Jaising has deposed<\/p>\n
    that all the accused persons encircled deceased, this witness, Shivaji (P. W.\n<\/p>\n
    1), Subhash (P.W. 5) and launched an assault. It is contended that this<\/p>\n
    witness has received injuries on his back and therefore it is difficult to<\/p>\n
    believe that this witness could have seen the incident. It is contended that<\/p>\n
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\n                                           6<\/span><\/p>\n
    the evidence of P.W. 2 shows that he has exaggerated the incident to ensure<\/p>\n
    that all the accused persons who were from the opposite group be<\/p>\n
    implicated. This witness      admitted hostility between the accused and<\/p>\n
    deceased on account of earlier litigations. It is submitted that the conduct of<\/p>\n
    this witness in not raising alarm or not doing anything for seeking help<\/p>\n
    when he saw the accused persons armed with weapons at the distance of 25<\/p>\n
    feet was unnatural and creates doubt about the presence of this witness. It is<\/p>\n
    contended that there is a variance in his previous statement (D.D.) and his<\/p>\n
    substantive evidence. Similarly the testimony of this witness is inconsistent<\/p>\n
    with the evidence of other alleged eye witnesses.\n<\/p>\n
    6.    The learned counsel for the appellants has submitted that so far as<\/p>\n
    evidence of P.W. 5 Subhash Kapre is concerned, this witness himself has<\/p>\n
    admitted that all the accused persons were on inimical terms with the<\/p>\n
    deceased. He has not mentioned that the accused persons were armed with<\/p>\n
    iron bar. However, stated that the accused were armed with stones, sickles,<\/p>\n
    axes and chains. Similarly, in the previous statement of this witness Subhash<\/p>\n
    (D.D.) did not mention that Bajirao was assaulted. On the other hand stated<\/p>\n
    that the victims were assaulted with the stones and chains. This witness had<\/p>\n
    not mentioned about the assault by axes or iron bars. It is submitted that<\/p>\n
    testimony of this witness does not inspire confidence and therefore unsafe to<\/p>\n
    rely upon for awarding conviction.\n<\/p>\n
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\n                                            7<\/span><\/p>\n
    7.      The learned counsel for the appellants has submitted that so far as<\/p>\n
    evidence of P.W. 7 Mahadeo Kapre another alleged eye witness is<\/p>\n
    concerned, it is pertinent to note that this witness did not mention to the<\/p>\n
    police over the phone that accused no.1 assaulted deceased. This witness<\/p>\n
    has also not informed the police that Jaising (P.W. 2) was also assaulted by<\/p>\n
    the accused. The presence of this witness is doubtful as this witness has<\/p>\n
    stated that at the relevant time he was       grazing sheeps near the water<\/p>\n
    reservoir. It is further submitted that the evidence of this witness is also not<\/p>\n
    consistent in respect of assault alleged to have been committed by the<\/p>\n
    accused on the victims and is in variance with the material particulars of the<\/p>\n
    prosecution case. The presence of this witness appears to be highly doubtful<\/p>\n
    in view of the conduct of this witness in not raising alarm at the relevant<\/p>\n
    time.\n<\/p>\n
    8.      The learned counsel for the appellants further contended that so far as<\/p>\n
    evidence of P.W. 3 Appa Kapre (injured eye witness) is concerned, it is<\/p>\n
    submitted that conduct of this witness makes the presence of this witness at<\/p>\n
    the relevant time improbable and doubtful as he raised no alarms \/ shouts<\/p>\n
    when he saw the accused coming towards him. The prosecution has not<\/p>\n
    proved motive \/ reasons why the accused assaulted him. It is further<\/p>\n
    contended that this witness was present in the field busy doing agricultural<\/p>\n
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\n                                           8<\/span><\/p>\n
    operations and therefore the presence of this witness at the scene of offence<\/p>\n
    is also doubtful.\n<\/p>\n
    9.    It is further contended by the learned counsel for the appellants that<\/p>\n
    P.W. 4 Chandrakant Kapre is another injured eye witness who has admitted<\/p>\n
    that all the accused were on cross terms with the deceased. However the<\/p>\n
    accused had no motive or reasons to assault this witness. Therefore<\/p>\n
    evidence of this witness does not appear to be probable. He is a chance<\/p>\n
    witness who came out of the sugarcane field on hearing the commotion and<\/p>\n
    claimed to have witnessed the incident. He did not raise alarm. The evidence<\/p>\n
    of this witness would show that at the time of incident he was in the field<\/p>\n
    where the sugarcane crop was standing and therefore it was not possible for<\/p>\n
    him to witness the alleged incident which he claimed to have seen after<\/p>\n
    coming out of the sugarcane field. The learned counsel for the appellants<\/p>\n
    therefore contended that the evidence of eye witnesses P.W. 5 and P.W. 7 as<\/p>\n
    well as evidence of P.W. 3 and P.W. 4 in respect of incident of assault is<\/p>\n
    contradictory to each other and in variance with material particulars of the<\/p>\n
    prosecution case and creates serious doubt about the authenticity thereof<\/p>\n
    and therefore ought not to have been relied upon by the trial court.\n<\/p>\n
    10.   The learned counsel for the appellants further submitted that the<\/p>\n
    evidence of eye witnesses is also not consistent with the medical evidence.\n<\/p>\n
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\n                                          9<\/span><\/p>\n
    It is submitted that while conducting the post-mortem examination on the<\/p>\n
    dead body of deceased Bajirao, doctor noticed only two injuries on the head<\/p>\n
    of the deceased, out of which injury no. 1 only was fatal to the deceased. It<\/p>\n
    is contended that as per the case of the prosecution accused No.1 gave only<\/p>\n
    one blow on the head of the deceased, however there were two injuries<\/p>\n
    found on the head of the deceased. The prosecution failed to establish which<\/p>\n
    out of these two injuries found on the head of the deceased was caused by<\/p>\n
    accused no. 1. It is no doubt true that the deceased had as many as 22<\/p>\n
    injuries on his back, however the cause of death as per the doctor was shock<\/p>\n
    due to head injury with fracture. It is therefore contended that the evidence<\/p>\n
    adduced by the prosecution apart from being inconsistent with material<\/p>\n
    evidence is also untrustworthy.\n<\/p>\n
    11.   The learned counsel for the appellants has contended that so far as<\/p>\n
    recovery of weapon is concerned, it cannot be relied on since panch witness<\/p>\n
    has admitted that none of the accused were present in the police station,<\/p>\n
    panchnama was already written and panch witness was asked to sign the<\/p>\n
    same. The learned counsel for the appellants therefore submitted that the<\/p>\n
    entire prosecution case is untrustworthy and therefore the impugned<\/p>\n
    judgment and order so far as three appellants are concerned is liable to be<\/p>\n
    quashed and set aside.\n<\/p>\n
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\n                                          10<\/span><\/p>\n
    12.   The learned Additional Public Prosecutor on the other hand has<\/p>\n
    supported the judgment and order of conviction passed by the trial court so<\/p>\n
    far as the present three appellants are concerned. It is submitted that P.W. 1<\/p>\n
    Shivaji unfolded the material particulars of the prosecution case that the<\/p>\n
    accused came on the spot armed with weapons like axes, iron bars, cycle<\/p>\n
    chains, lathis and guptis, they encircled the deceased Bajirao, Subhash,<\/p>\n
    Jaising and Laxman. Accused No. 1 Jayawant gave a blow with iron bar on<\/p>\n
    the head of Bajirao who fell down as a result of this blow. Thereafter<\/p>\n
    Subhash was assaulted by accused No. 1 Jayawant by the iron bar, he too<\/p>\n
    fell down on the ground. Then Trimbak beat Subhash by the iron bars and<\/p>\n
    sticks. Other accused also participated in the assault. It is submitted that<\/p>\n
    evidence of P.W. 2 Jaising corroborates the testimony of P.W. 1 Shivaji who<\/p>\n
    has stated that the accused were armed with iron bars, lathis, axes, encircled<\/p>\n
    deceased and others and launched an assault. Bajirao fell down on the<\/p>\n
    ground as a result of the assault made by accused Jayawant, accused Balu<\/p>\n
    and accused Ashok also beat him. This witness suffered bleeding injury. It is<\/p>\n
    submitted that the evidence of P.W. 7 Mahadeo is also consistent with the<\/p>\n
    material particulars of the prosecution case and corroborates the testimony<\/p>\n
    of other eye witnesses.\n<\/p>\n
    13.   It is contended that in the instant case Bajirao succumbed to the<\/p>\n
    injuries sustained by him during the course of assault. P.W. 5 Subhash and<\/p>\n
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\n                                           11<\/span><\/p>\n
    P.W. 2 Jaising also sustained injuries in the said assault. It is contended that<\/p>\n
    suggestions given by the defence to the        eye witnesses that they have<\/p>\n
    implicated the accused in view of the rivalry between the two groups has no<\/p>\n
    basis particularly   because the evidence of eye witnesses is consistent,<\/p>\n
    cogent and is corroborated by the medical evidence. Similarly P.W. 5<\/p>\n
    Subhash and P.W. 2 Jaising are also injured witnesses. It is contended that<\/p>\n
    merely because some of the witnesses are related to the injured person that<\/p>\n
    by itself does not render their evidence untrustworthy if it is otherwise<\/p>\n
    cogent and reliable. The contradictions and omissions which are brought in<\/p>\n
    the testimony of some of the prosecution witnesses are not of a material<\/p>\n
    nature and therefore it does not affect the credibility of the prosecution<\/p>\n
    evidence. It is contended that the trial court was justified in accepting the<\/p>\n
    prosecution evidence which has been corroborated by the medical evidence<\/p>\n
    and the trial court was justified in convicting the appellants for the offences<\/p>\n
    charged.\n<\/p>\n
    14.   We have considered the contentions canvassed by the learned counsel<\/p>\n
    for the appellants and the learned Additional Public Prosecutor for the State<\/p>\n
    and also scrutinised the entire evidence adduced by the prosecution. At the<\/p>\n
    outset, we want to express that in the instant case in all 29 accused were<\/p>\n
    prosecuted for commission of various offences punishable under the Indian<\/p>\n
    Penal Code, however the trial court convicted 10 accused for commission of<\/p>\n
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\n                                           12<\/span><\/p>\n
    different offences punishable under the Code. The present appeal has been<\/p>\n
    filed by those 10 accused persons who were convicted by the trial court.\n<\/p>\n
    During the pendency of the appeal, appellant nos, 2, 3, 4, 6, 7, 8 and 9 have<\/p>\n
    compounded the offences and this Court vide Order dated 10th March 2005<\/p>\n
    in view of the compounding of offences disposed of the appeal of appellant<\/p>\n
    nos. 2, 3, 4, 6, 7, 8 and 9. The criminal appeal survived only in relation to<\/p>\n
    appellant no. 1 Jayawant, appellant no. 5 Balu and appellant no. 10 Trimbak<\/p>\n
    and was heard finally on merits.\n<\/p>\n
    15.   The important evidence is of eye witnesses P.W. Shivaji Sarjerao<\/p>\n
    Kapre, P.W. 2 Jaising Kashinath Kapre, P.W. 5 Subhash Shivram Kapre and<\/p>\n
    P.W. 7 Mahadeo Sarjerao Kapre. Similarly, evidence of eye witnesses P.W.\n<\/p>\n
    3 Appa Sarjerao Kapre and P.W. 4 Chandrakant Bajirao Kapre is in respect<\/p>\n
    of main    incident of assault     in which Bajirao and other prosecution<\/p>\n
    witnesses received injuries, Bajirao succumbed to the injuries. It will be<\/p>\n
    appropriate at this stage to consider the evidence of these witnesses.\n<\/p>\n
    16.   P.W. 1 Shivaji in his examination-in-chief has stated that on 18th<\/p>\n
    December 1986 at about 2.30 p.m. after election, Bajirao (deceased),<\/p>\n
    Subhash (P.W. 5), Jaising (P.W. 2),        Laxman and Shri Deo and one<\/p>\n
    Gramsevak Mahadeo (P.W. 7) went to the field known as “Shericha Mala”.\n<\/p>\n
    After some time Shri Deo, Election Officer, Mahadeo left the said field. It<\/p>\n
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\n                                          13<\/span><\/p>\n
    has come in the examination-in-chief of this witness that all the accused<\/p>\n
    persons armed with various weapons like axes, iron bars, cycle chains,<\/p>\n
    lathis, and guptis came from northern side of the river. All these accused<\/p>\n
    encircled Bajirao, Subhash, Jaising and Laxman. Accused Jayawant gave<\/p>\n
    blow with an iron bar on the head of Bajirao. This witness saw the incident<\/p>\n
    from 70 to 80 paces. Bajirao fell down on the ground as a result of the said<\/p>\n
    blow. Subhash was also assaulted by accused Jayawant by iron bar who<\/p>\n
    also fell down. Trimbak and other co-accused beat Subhash by iron bar and<\/p>\n
    sticks. Accused no. 24 Pralhad also beat him by stick. This witness has<\/p>\n
    further stated that accused 19 Ashok beat Jaising with iron bar. This witness<\/p>\n
    has stated that on seeing the said incident he started shouting. Shouts were<\/p>\n
    heard by some of the accused persons who rushed towards him and<\/p>\n
    therefore he started running away from the said place towards Village<\/p>\n
    Chikanewadi. This witness has further stated in his evidence that his brother<\/p>\n
    Appa (P.W. 3) was doing agricultural operations in the field. Appa was also<\/p>\n
    assaulted. One Chandrakant was watering sugarcane crop in the adjacent<\/p>\n
    land. On hearing shouts of Appa he came out of the sugarcane crop and on<\/p>\n
    seeing him the accused persons also started assaulting him. As per the<\/p>\n
    testimony of this witness when he came back to “Shericha Mala” he saw<\/p>\n
    Bajirao, Jaising, Subhash and Laxman were on the spot in the injured<\/p>\n
    condition. This witness thereafter went to Jejuri Police Station and lodged<\/p>\n
    the complaint, Exhibit 41.\n<\/p>\n
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\n                                           14<\/span><\/p>\n
    17.    In the cross-examination of this witness it has come that the first<\/p>\n
    attack was made by the accused on Bajirao, which continued for about 4-5<\/p>\n
    minutes. The next attack was made on Subhash which continued for<\/p>\n
    2-4minutes and the third attack was on Jaising who was assaulted for about<\/p>\n
    5-6 minutes. Some contradictions and omissions which are brought out by<\/p>\n
    the defence in his evidence, in our view, are not material in nature and it<\/p>\n
    does not affect the veracity of the testimony of this witness.\n<\/p>\n
    18.   P.W. 2 Jaising in his examination-in-chief has stated that the accused<\/p>\n
    persons came on the spot in a group armed with weapons like iron rods,<\/p>\n
    bars, lathis, axes and encircled him and others and started assaulting him<\/p>\n
    and others. This witness has stated that accused Jayawant was holding stick<\/p>\n
    and gave a blow on the head of Bajirao as a result Bajirao fell down on the<\/p>\n
    spot. He has further stated that accused Jayawant also beat him by stick on<\/p>\n
    his head. Accused Balu, accused Ashok also beat him. According to this<\/p>\n
    witness accused Balu assaulted him by a blunt side of an axe.\n<\/p>\n
    19.   In the cross examination of this witness (P.W. 2) it has come that he<\/p>\n
    noticed the arrival of the accused persons from the distance of about 25 ft.\n<\/p>\n
    They were armed with weapons. This witness was standing near the tractor.\n<\/p>\n
    It has also come in the cross-examination of this witness that when the<\/p>\n
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\n                                          15<\/span><\/p>\n
    accused persons came close to him and were saying “Hana Mara” (in<\/p>\n
    vernacular). This witness further stated in the cross-examination that this<\/p>\n
    witness as well as the others were assaulted by the accused near the cattle<\/p>\n
    shed of Bajirao. The evidence of this witness does not suffer from material<\/p>\n
    omissions and contradictions and corroborates the material particulars of the<\/p>\n
    prosecution case.\n<\/p>\n
    20.   P.W. 5 Subhash in his examination-in-chief has stated that all the<\/p>\n
    accused persons came on the spot from the side of the river armed with<\/p>\n
    stones, sticks, axes, chains. Accused Jayawant was armed with iron bar and<\/p>\n
    assaulted Bajirao on his head with the same. Bajirao fell down on the<\/p>\n
    ground as a result of the said assault. According to this witness accused<\/p>\n
    Trimbak assaulted him by iron bar. He has further stated that all the accused<\/p>\n
    persons started beating him, Bajirao and Jaising. The defence though<\/p>\n
    conducted lengthy cross-examination of this witness, however, failed to get<\/p>\n
    any material which would affect      the veracity of the testimony of this<\/p>\n
    witness.\n<\/p>\n
    21.   So far as evidence of P.W. 7 Mahadeo is concerned, he claimed that<\/p>\n
    accused Jayawant was armed with iron bar, accused Trimbak was also<\/p>\n
    armed with iron bar, accused Sudam and accused Vinayak were armed with<\/p>\n
    axes. This witness has stated that deceased Bajirao, P.W. 5 Subhash,<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:35:33 :::<\/span>
\n                                          16<\/span><\/p>\n
    Laxman and Jaising were visible to him from the place where they were<\/p>\n
    standing. This witness has stated that six persons along with accused<\/p>\n
    Jayawant started assaulting Bajirao and others. In the cross examination of<\/p>\n
    this witness it has come that this witness saw the incident while he was<\/p>\n
    standing on the bank of the river.\n<\/p>\n
    22.   The evidence of P.W. 3 Appa demonstrates that on 18th December<\/p>\n
    1986 at about 3.00 p.m. he was in his field doing agricultural operations.\n<\/p>\n
    He was alone in the land. At that time 10 persons came running towards<\/p>\n
    him. They wee accused Vinayak, accused Hanumant, accused Manik,<\/p>\n
    accused Kundlik, accused Sudam @ Balu, accused Dattatraya, accused<\/p>\n
    Jayawant, accused Chimanrao, accused Gulab Shivaji, they were armed<\/p>\n
    with weapons like axes, iron bars, sticks, chains. According to this witness<\/p>\n
    all those accused persons beat him and as a result of the said assault he<\/p>\n
    received injuries on his buttocks, both arms and legs. This witness has<\/p>\n
    stated in general that all the accused came and assaulted him. In the cross<\/p>\n
    examination this witness has stated that he saw the accused persons from the<\/p>\n
    distance of 15-20 paces. They came in one group and as soon as he saw<\/p>\n
    them he started running away from the said spot. He has further stated in<\/p>\n
    his cross-examination that while he was running away from the spot the<\/p>\n
    assailants followed him and inflicted injuries on his back and due to the<\/p>\n
    said assault this witness fell down on the ground. He has stated that the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:35:33 :::<\/span>
\n                                              17<\/span><\/p>\n
    assailants beat him for about 5-10 minutes.\n<\/p>\n
    23.      It is pertinent to note that the eye witnesses were injured in the<\/p>\n
    assault, their presence on the scene of offence more or less is not in dispute.\n<\/p>\n
    The testimony of these witnesses is also consistent with the material<\/p>\n
    particulars of the prosecution case and corroborates the evidence of each<\/p>\n
    other. The evidence of these witnesses is also corroborated by the medical<\/p>\n
    evidence. P.W. 10 Dr. Wagholikar examined P.W. 5 Subhash, P.W. 2 Jaising.\n<\/p>\n
    Medical Officer noticed the following injuries on the person of P.W. 5<\/p>\n
    Subhash:\n<\/p>\n
          1. Contusion over Rt. scapular region, 3″ x 1″.\n<\/p><\/blockquote>\n
          2. Six contusions of size 4″ x 5″ x 1″ over Rt. thigh laterally.\n<\/p><\/blockquote>\n
          3. Contusion over lower abdomen, horizontally placed, 5″ x 1″.\n<\/p><\/blockquote>\n
          4. Abrasion over Rt. Knee 1″ x 1\/2″.\n<\/p><\/blockquote>\n
          5. Diffuse swelling of Rt. knee and Rt. ankle joint with restricted<\/p>\n
             movements. Fracture dislocated of Rt. Knee was suspected. It was<\/p>\n
             also suspected that the tibia and fibula were also fractured.\n<\/p><\/blockquote>\n
    Medical Officer opined that these injuries could be caused by hard and blunt<\/p>\n
    substance such as sticks or iron bars and they were caused within six hours.\n<\/p>\n
    Exhibit 53 is the certificate issued by the medical officer in respect of the<\/p>\n
    injuries sustained by P.W. 5 Subhash.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:35:33 :::<\/span>
\n                                             18<\/span><\/p>\n
    24.      Similarly, P.W. 10 Dr. Wagholikar on examining P.W. 2 Jaising<\/p>\n
    noticed the following injuries:\n<\/p>\n
          1. Six contusions all over back of size 4 to 5″ x 1″.\n<\/p><\/blockquote>\n
          2. Diffuse swelling, tenderness, restricted movements, Rt. fore arm and<\/p>\n
             Rt. leg. Fractures of Rt. radius and ulna, middle 1\/3 region and<\/p>\n
             fracture on Rt. tibia and fibula, middle 1\/3 region.\n<\/p><\/blockquote>\n
          3. C.L.W. over left parietal region, 3″ 1\/4″ x 1\/4″\n<\/p><\/blockquote>\n
    As per the opinion of the doctor the injuries could have been caused by hard<\/p>\n
    and blunt object like iron bars and sticks.\n<\/p>\n
    25.      P.W. 14 Dr. Waghmare who has examined P.W. 3 Appa noticed<\/p>\n
    following injuries sustained by this witness :\n<\/p>\n
          1. 1 \u00bd ft. linear wheel about 2 cms, broad and was over the left upper<\/p>\n
             arm upto the T-5, 3 cm. below the shoulder Jt.\n<\/p><\/blockquote>\n
          2. 8 inches liniear wheel 6 inches below the shoulder Jt., at the level of<\/p>\n
             small pox.\n<\/p><\/blockquote>\n
          3. Linear wheel below the injury No. 26 x 1 cm. transverse.\n<\/p><\/blockquote>\n
          4. Swelling and redness present over both the upper arms.\n<\/p><\/blockquote>\n
          5. Multiple wheel marks all over the back.\n<\/p><\/blockquote>\n
    As per the opinion of the Dr. Waghmare the injuries noticed on the person of<\/p>\n
    this witness are possible by sticks and iron bars.\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:35:33 :::<\/span>
\n                                             19<\/span><\/p>\n
             Lastly, P.W. 4 Chandrakant also suffered following injuries:\n<\/p>\n
          1. C.L.W. 21 c.m. rt. forearm, 10 cm. distal to elbow jt. It was sub<\/p>\n
             cutaneous deep with haemotoma.\n<\/p>\n
          2. Swelling of left arm without any fracture.\n<\/p>\n
          3. Swelling on the back.\n<\/p>\n
          4. Swelling on left lower limb, No visible injury.\n<\/p>\n
    P.W. 14 opined that the injuries sustained by this witness could have been<\/p>\n
    caused by hard and blunt object like sticks and iron bars.\n<\/p>\n
    26.      It is pertinent to note that the injuries sustained by these witnesses<\/p>\n
    were not minor or superficial but were serious in nature and caused at the<\/p>\n
    hands of the assailants. While appreciating the evidence of these witnesses<\/p>\n
    the fact that these witnesses were injured in the assault cannot be ignored.\n<\/p>\n
    Similarly their presence at the time of the incident can not be disputed. P.W.\n<\/p>\n
    14 Dr. Waghmare examined Bajirao who was unconscious and was in coma<\/p>\n
    and found following external injuries on his body:\n<\/p>\n
          1. Head injury with compound fracture of the skull. It was on left<\/p>\n
             parietal prominance about 4 c.m. above the left pinna of ear. Size of<\/p>\n
             the injury anterior posteriorly was 2-4 inches. It was within 24 hours<\/p>\n
             and could have been caused by hard and blunt object like an iron bar<\/p>\n
             and stick.\n<\/p><\/blockquote>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:35:33 :::<\/span>
\n                                           20<\/span><\/p>\n
       2. Contused lacerated wound on the left pinna, of ear, 1 x 1 cm. and<\/p>\n
          cartilage deep. (ii) 3 x 2 cms. lower part of injury no. (1) extending<\/p>\n
          from external meatus to the outer aspect of pinna. It was a fresh<\/p>\n
          injury, as a result of striking with hard and blunt object like a stick<\/p>\n
          and an iron bar.\n<\/p>\n
       3. There was a fracture of left radio ulna. It was a compound fracture.\n<\/p>\n
          There was a C.L.W. 2 x 3 cm. bone deep, 5 inches distal to left elbow.\n<\/p>\n
          Huge heamatoma around the fracture. Haematoma was about 5 x 5<\/p>\n
          cm. in diameter. This was also within 24 hours and could have been<\/p>\n
          caused by hard and blunt substance like a stick and an iron bar.\n<\/p>\n
       4. Injuries on back: There were 16 injuries on the back and 6 injuries on<\/p>\n
          thighs.\n<\/p>\n
    Dr. Waghmare also noticed the following internal injuries on the body of<\/p>\n
    deceased:\n<\/p>\n
       1. Fracture of the skull on left parietal prominance, 4 c.m. above the left<\/p>\n
          pinna of the ear, size 2.4 inches in length. Direction antero posterior.\n<\/p>\n
       2. Brain – It was highly congested, coverings, were reptured and<\/p>\n
          subdural haematoma of a large size was present.\n<\/p>\n
    The Medical Officer opined that the probable cause of death was result of<\/p>\n
    shock due to head injury with fractures (compound) of the skull and radio<\/p>\n
    ulna. He has also opined that the said injuries could have been caused by<\/p>\n
    weapon like iron bar, sticks.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:35:33 :::<\/span>
\n                                          21<\/span><\/p>\n
    27.     In the instant case ocular testimony of the eye witnesses those who<\/p>\n
    were injured in the assault is corroborated by the medical evidence and the<\/p>\n
    testimony of these witnesses being consistent with the material particulars<\/p>\n
    of the prosecution case, the trial court was justified in placing reliance on<\/p>\n
    their evidence.\n<\/p>\n
    28.     In the instant case appellant Jayawant was convicted for the offence<\/p>\n
    of murder punishable under Section 302 of the Indian Penal Code. Similarly,<\/p>\n
    appellants Jayawant, Balu and Trimbak and other co-accused were also<\/p>\n
    convicted under sections 147, 148, 149, 447 and 325 of the Indian Penal<\/p>\n
    Code. In the instant case other seven appellants were permitted by this Court<\/p>\n
    to compound the offences and their appeal came to be disposed of<\/p>\n
    accordingly. However conviction with the aid of Sections 147, 148, 149 will<\/p>\n
    not be sustained. Conviction and sentence of appellant Jayawant for the<\/p>\n
    offence punishable under Section 302 of the Indian Penal Code is sustained.\n<\/p>\n
    Conviction and sentence of appellants Jayawant, Balu and Trimbak for the<\/p>\n
    offence under Sections 447 and 325 is sustained with the aid of Section 34<\/p>\n
    of the Indian Penal Code.       Similarly, the conviction and sentence of<\/p>\n
    appellants Jayawant and Balu for the offence under Sections 447, 323 of the<\/p>\n
    Indian Penal Code is sustained with the aid of Section 34 of the Indian Penal<\/p>\n
    Code.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:35:33 :::<\/span>
\n                                         22<\/span><\/p>\n
    29.   For the reasons stated herein above, criminal appeal suffers from lack<\/p>\n
    of merits. Same is dismissed.\n<\/p>\n
                                                           (D. D. SINHA, J.)<\/p>\n
                                                          (A. P. BHANGALE, J.)<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:35:33 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Jayawant Chimanrao Kapre vs The State Of Maharashtra on 29 October, 2010 Bench: D.D. Sinha, A.P. Bhangale 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 75 OF 1989 1. Jayawant Chimanrao Kapre ] aged 30, ] 2. Gulab Shivaji Kapre, ] aged 19 years. ] 3. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-31238","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nJayawant Chimanrao Kapre vs The State Of Maharashtra on 29 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jayawant-chimanrao-kapre-vs-the-state-of-maharashtra-on-29-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jayawant Chimanrao Kapre vs The State Of Maharashtra on 29 October, 2010 - 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