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2006 DIGILAW 1878 (BOM)

Mangaldas Laxman Kudav v. State

2006-11-20

J.N.PATEL, N.A.BRITTO

body2006
ORAL JUDGMENT J.N. Patel. J.––The appellant was tried on a charge that on 5.10.2003 at about 11.00 hours at Thakurwada, Arambol, Pernem having committed trespass into the paddy field namely "Jiromangalbag" of Shri Ravji Tukaram Kudav with intent to assault Smt. Dwarki Ravji Kudav and assaulted the said Smt. Dwarki Ravji Kudav with koita and wooden danda causing her death and thereby committed offences punishable under Sections 447 and 302 of Indian Penal Code. 2. The learned Sessions Judge found the appellant guilty on both the counts and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5000/- and in default to undergo simple imprisonment for six months. On being convicted for having committed offence under Section 302, I.P.C., and for having committed offence under Section 447, IPC, sentenced him to undergo Simple Imprisonment for six months. The appellant was also given set-off. It is this judgment and order of conviction which is challenged in this appeal. 3. It is the case of the prosecution that the deceased Smt. Dwarki was the wife of the cousin of the appellant/accused who is the complainant i.e. Ravji Tukaram Kudav (PW 2). On the fateful day i.e. on 5.10.2003 at about 11.00 hours, the deceased Smt. Dwarki along with three labourers Radhabai Takur (PW 3), Basavraj Naikar (PW 10) and Hussein Misrikote (PW 20) had gone to the paddy field "Jiromangalbag" situated at Thakurwada, Arambol for the purpose of harvesting it. The appellant/accused came to the paddy field and assaulted the victim by means of koita and danda, clue to which she collapsed on the ground. Basavraj and Hussein informed the said incident to the husband of Smt. Dwarki i.e. Shri Ravji Tukaram Kudav (PW 2) who immediately rushed to the spot and noticed the appellant/accused standing near his wife with koita and danda in his hand and his wife was lying on the ground with injuries on her and who left the place on seeing them and went towards the hillside. The complainant with the help of others took his injured wife to the Primary Health Centre at Pernem in a Maruti Van of one Sanjay Naik. At the Primary Health Centre Smt. Dwarki was declared dead. Therefore Ravji Kudav went to Pernem Police Station and lodged the report (Exh. 12) against the accused. The complainant with the help of others took his injured wife to the Primary Health Centre at Pernem in a Maruti Van of one Sanjay Naik. At the Primary Health Centre Smt. Dwarki was declared dead. Therefore Ravji Kudav went to Pernem Police Station and lodged the report (Exh. 12) against the accused. On receiving the report, the Police registered offence under Crime No. 113/03 against the appellant/accused for having committed offences under Section 447 and 302, IPC, P.I. Pandharinath Mepari also received certificate from the Medical Officer, Community Health Centre that Dwarki, aged 52 years was brought dead to the hospital, P.I. Mepari (PW 26) reported the matter to his superiors and deputed police at the scene of offence with instructions to preserve the scene of offence. He also deputed a team of police officers for tracing the appellant/accused and visited the Community Health Centre, Pernem and in the presence of panchas prepared the inquest panchanama (Exh. 9). He also summoned the photographer to take photographs of the dead body which were tendered in evidence as Exh. 23 Colly. From there he visited the scene of offence at Thakurwada, Arambol and prepared the spot panchanarna and rough sketch (Exh. 22 colly.) and seized a pair of chappals (MO 7) of the deceased, blue colour towel of the deceased (MO 8) and other articles under the panchanama and also got the scene of occurrence photographed by the photographer from Ganesh Photo Studio. In the course of the investigation, he recorded the statement of Hussein Misrikote, Mestri Koti and Basav Raj Yellapa Naikar. 4. On the next day he visited Goa Medical College and contacted Dr. E.J. Rodrigues for the purpose of conducting post-mortem examination of the deceased Smt. Dwarki. The Police also got a sketch (Exh. 40) of the spot of offence prepared by a surveyor. The appellant/accused came to be arrested from the place called Tiracol on his arrest an arrest panchanama (Exh. 38) was drawn. After the arrest of the appellant/accused, at his instance the police were able to recover the koita and danda vide recovery panchanama (Exh. 41). 5. In the course of investigation the articles which were seized were sent to CFSL, Hyderabad and on completion of investigation, charge-sheet came to be filed in the Court J.M.F.C. which committed the case of the accused to the Court of Sessions for conducting the trial. 6. 41). 5. In the course of investigation the articles which were seized were sent to CFSL, Hyderabad and on completion of investigation, charge-sheet came to be filed in the Court J.M.F.C. which committed the case of the accused to the Court of Sessions for conducting the trial. 6. In reply to the charge, the appellant/accused pleaded not guilty and came to be tried. It was his case that he does not know anything about the incident and has been falsely implicated in the case. In support of their case, the prosecution examined the complainant and eye-witnesses to the incident. Prosecution also examined the panch witnesses before whom inquest panchanama came to be prepared. Prosecution also brought on record the medical and forensic evidence in support of their case. On conclusion of evidence, the Court found that the prosecution has proved that Smt. Dwarki's death was homicidal. It has further found that the accused committed criminal trespass' in the paddy field of the complainant and the prosecution has proved that it was the appellant/accused who committed the murder of the deceased and that is how the accused came to be sentenced for having committed offence under Sections 302 and 447, IPC. 7. The learned counsel appearing for the appellant/accused submitted that the prosecution has failed to prove its case against the accused beyond reasonable doubt and the learned trial Court failed to appreciate that the evidence of the eye-witnesses examined by the prosecution is not consistent nor corroborates each other and therefore ought to have disbelieved their testimony. It is further contended that in addition to discrepancies in their evidence as to how the incident occurred, there are omissions and contradictions which have been ignored by the trial Court while appreciating the evidence and therefore the appellant/accused ought to have been given benefit of doubt. 8. The learned counsel for the appellant/accused further submitted that the appellant/accused has been falsely implicated at the behest of the husband of the victim who is his cousin as their relations were strained because of dispute relating to the property. It is submitted that the findings arrived at by the learned trial Court are perverse and contrary to the evidence on record. 9. The learned counsel for the appellant/accused submitted that even if the prosecution case is accepted, the case of the appellant/ accused would fall under Section 304 (II), IPC. It is submitted that the findings arrived at by the learned trial Court are perverse and contrary to the evidence on record. 9. The learned counsel for the appellant/accused submitted that even if the prosecution case is accepted, the case of the appellant/ accused would fall under Section 304 (II), IPC. The assault was a result of altercation between Dwarki and the accused due to strained relationship between their families and therefore the conviction of the appellant/ accused under Section 302 IPC was not justified in the facts and circumstances of the case. He therefore submitted that the appeal deserves to be allowed and the conviction and sentence of the appellant/accused quashed and set aside. 10. On the other hand, the learned P.P. submitted that the prosecution has proved its case beyond reasonable doubt. The prosecution has examined eye-witnesses whose presence at the scene of occurrence cannot be disputed as nothing has been brought on record in their cross-examination that they were not present at the scene of offence. It is submitted that even the complainant saw the appellant/accused standing at the side of his wife Smt. Dwarki with koita and danda in his hand and therefore there is no reason to disbelieve the eyewitnesses i.e. appellant/accused who assaulted Dwarki. 11. It is further submitted that the evidence of the eye-witnesses stand well corroborated by the medical and forensic evidence so also the recovery of weapon of assault at the instance of the appellant/accused. 12. The learned P.P. further submitted that there is nothing brought on record to show that the incident occurred due to altercation between the victim and the accused. Though it is not disputed that they were having strained relationship, it is submitted that this is a case of pre-meditated murder committed by the appellant/accused as all the witnesses are consistent on the issue that the appellant/ accused came to the paddy field of the complainant where his wife was working with three labourers and assaulted her by means of koita and danda because of which she fell down and subsequently died as a result of injuries caused by the appellant/accused to her and therefore the appeal deserves to be dismissed. 13. Though it is not much disputed that the death of Smt. Dwarki was homicidal, the prosecution has brought sufficient evidence on record to prove the same. On this point, the prosecution has examined Dr. 13. Though it is not much disputed that the death of Smt. Dwarki was homicidal, the prosecution has brought sufficient evidence on record to prove the same. On this point, the prosecution has examined Dr. E.J. Rodrigues (PW 11) who conducted post mortem on the dead body of Dwarki Ravji Kudav who found the following injuries on her body : "1. Multiple abrasion in an area of 5 x 4 cms. 3cm below external occipital protuberance on upper part of back of heck. On dissection there was extensive extravassation of blood in subcutaneous tissues and muscle of the back of neck in an area of 7 x 6 cm. There was fracture dislocation at cervical 2 and 3 level with complete transaction of spinal cord at that level from back to front of neck with extravassation over front and side neck. 2. Horizontal abrasion of 7 x 1 cm with superficial laceration of 1 x 0.5 x 0.5 cm towards medial and present over mid back of right shoulder, outer end and is 8 cm above right posterial axillary fold, fresh and reddish. 3. Verticle abrasion of 6 x 0.5 cm over back of left shoulder 8 cm above posterial axillary fold, fresh and reddish. 4. Abrasion, fresh, reddish of 0.5 x 0.5 cm, 2 cm above medial end of left eyebrow over left side of forehead. On internal examination there was extravassation of blood was present. There were no fractures on skull. There was no extradural hematoma, no subdural haemorrhage. There was sub arachnoid haemorrhage present at cerebellum. There were fracture dislocation at cervical two or 3 level with complete transaction and extensive extravassation of blood in subcutaneous tissues and muscles. There was fracture of thoracic 6 to 8 on right side in anterior axillary line with excavation of blood in inter coastal muscles." 14. In the opinion of Dr. Rodrigues all the injuries No. 1 to 4 are caused by hard and blunt object and were ante mortem in nature. He has described the location of the injuries in the diagram/autopsy report No. 905/03 (Exh. 29). On internal examination Dr. Rodrigues found that there was extravassation of blood present. There was no fracture of skull; there was no extradural haemorrhage present, there was sub-arachnoid haemorrhage present at cerebellum. He has described the location of the injuries in the diagram/autopsy report No. 905/03 (Exh. 29). On internal examination Dr. Rodrigues found that there was extravassation of blood present. There was no fracture of skull; there was no extradural haemorrhage present, there was sub-arachnoid haemorrhage present at cerebellum. There was fracture dislocation at cervical two or 3 levels with complete transaction and extensive extravassation of blood in subcutaneous tissues and muscles. In the opinion of Dr. Rodrigues death was due to cervical spinal injury at C2 and C3 level vide injury No. 1 caused by blunt force impact by object which was necessarily fatal. The doctor has also deposed about the blood group of the deceased as ORH+ on the basis of the report (Exh. 30). 15. Dr. Rodrigues also had occasion to examine the accused on 11.10.2003 and has referred him to the Blood bank for blood grouping. The blood group of the accused was found to be ABRH+. 16. In the evidence of Dr. Rodrigues his opinion was also sought on Ext. No. 1 (koita) and Exh. No.2 (wooden danda). On examining the weapons, he has deposed to the effect that injury No. 1 found on the dead body of the deceased could have been caused by the said koita and according to him multiple impact of blunt edge of koita can cause the injury No. 1 and so far as wooden danda (Exh. No.2) is concerned, could cause injuries No. 2 to 4 found on the dead body of the deceased. His opinion in respect of the same was tendered and marked Exh. 34 Colly. In the cross-examination of Dr. Robrigues, nothing could be brought on record to show that the koita (Exh. No. 1) and wooden danda (Exh. No.2) could not have caused the injuries. He has denied the suggestion to the effect that the koita and danda are not the same articles which were sent to him for his opinion. Therefore there can be no doubt that the death of Dwarki was homicidal and the injuries suffered by her could be caused by weapons like koita and danda. 17. The next and most crucial issue would be whether it is the appellant/accused who is the author of the said injuries and for that the prosecution has examined Radhabai Takur (PW 3). 17. The next and most crucial issue would be whether it is the appellant/accused who is the author of the said injuries and for that the prosecution has examined Radhabai Takur (PW 3). Basavraj Naikar (PW 10), and Hussein Misrikote (PW 20) who have actually seen the incident. All these witnesses have deposed to the effect that at the time of the incident they were present in the paddy field and they all saw the appellant/accused entering the paddy field armed with koita and danda in his hand and assaulting Dwarki from behind. The accused inflicted injuries with koita and danda on the back and neck of Dwarki because of which Dwarki fell in the paddy field. Though these witnesses have been cross-examined on various aspects including the fact of questioning the presence of each other, they have stuck to their evidence. On going through their evidence, this Court finds that it is consistent insofar as the accused coming to the paddy field armed with koita and danda and assaulting Dwarki with the weapons, because of which she fell down. Rather their evidence shows that Dwarki was taken by surprise as she was assaulted. They were all busy harvesting the paddy field and the accused arrived from behind. The appellant is known to the witnesses. There is no dispute regarding his identity. They have also identified the weapons seized at his instance. Therefore there cannot be any doubt that it is the appellant/accused who is the author of the injuries caused to Dwarki which proved to be fatal. 18. Insofar as the other evidence is concerned, that is the inquest panchanama, spot panchanama, recovery of weapons and forensic report. They all corroborate the prosecution case and that the witnesses have stood by the prosecution. Therefore we have no hesitation to hold that it was the appellant/accused who committed the murder of the deceased by trespassing into the paddy field belonging to the complainant. We, therefore, do not find that the learned trial Court has committed any error in appreciating the evidence on record and coming to a conclusion that the appellant/accused is guilty of having committed offences under Sections 302 and 447 of IPC. The trial Court was, therefore, justified in convicting the appellant/accused of the said offences. 19. We, therefore, do not find that the learned trial Court has committed any error in appreciating the evidence on record and coming to a conclusion that the appellant/accused is guilty of having committed offences under Sections 302 and 447 of IPC. The trial Court was, therefore, justified in convicting the appellant/accused of the said offences. 19. On going through the operative part of the judgment what we find is that the trial Court has not spelled out anything concerning the sentence on two counts i.e. whether the sentences would run concurrently or consecutively. In our view, as the appellant/accused has been found guilty for having committed offence under Section 302, IPC and sentenced to life imprisonment and as Section 447, IPC for which he has been found guilty, has been committed in the course of the same transaction, the sentences on both the counts shall run concurrently. 20. With the aforesaid directions, as there is no merit in the appeal, Appeal stands dismissed. Appeal dismissed.