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2008 DIGILAW 856 (BOM)

Gafrya s/o Theda Barela v. State of Maharashtra

2008-06-24

N.V.DABHOLKAR, SANTOSH BORA

body2008
JUDGMENT PER: SANTOSH BORA ,J.: This appeal, filed under Section 374 (2) of the Code of Criminal Procedure, 1973, by the appellant, challenges the judgment and order of conviction and sentence passed by learned 1st Ad hoc Additional Sessions Judge, Jalgaon in Sessions Case No. 57/2005 dated 23rd June, 2006, thereby convicting the appellant for the offences punishable under Sections 147, 148, 302 read with section 149 of the Indian Penal Code and sentencing him to suffer imprisonment for life and imposing fine for causing murder of one Khajan. 2. Background facts, which are not in dispute, may be stated as under : . Mathanpadav is an hamlet situated in the range of Satpuda maountain. It may be a smallest village in the country as only eight families reside in the village at the relevant time. The villagers used to earn their livelihood by cultivating the forest land and extracting gum from the trees. There are no facilities like road, school, primary health centre, electricity etc. Even the Police Patil of the said village is residing at village Mohamandli, which is quite away from the place of occurrence. The village is situated in Yawal Taluka of Jalgaon district. The said village is situated on the border of State of Maharashtra and State of Madhya Pradesh. Obviously, residents of Madhya Pradesh used to migrate for searching their livelihood in the State of Maharashtra. In the instant case, the villagers appears to have migrated from neighbouring State of Madhya Pradesh and have settled in the hamlet. . Ghosla (Husala), his cousin Khajan were amongst the villagers. Khajan, who is the victim in the instant case, was said to be a Mukhiya or Head of the hamlet. Equally, Gafrya (appellant herein), who is said to be native of village Kalwapani in the State of Madhya Pradesh, appears to have started residing at the said hamlet and he was cultivating the forest land. . Gafrya had grudge against victim - Khajan, his cousin Husla (Complainant in the instant case) and his associates including Lukdya (P.W.2) on account of cultivation of forest land. . Gafrya had grudge against victim - Khajan, his cousin Husla (Complainant in the instant case) and his associates including Lukdya (P.W.2) on account of cultivation of forest land. It is the case of the prosecution that Gafrya had grudge against victim - Khajan and his brothers on the ground that they were cultivating more land than Gafrya and it is alleged that on account of the same, there used to be the quarrels and disputes and it is said that the same was the motive for incident in question. 3. The prosecution case, in brief, may be summarized as under : . On fateful day - 27th October, 1993, at about 18.00 hrs., Khajan was assaulted by appellant - Gafrya and his associate - Taklya. It is alleged that they were armed with weapons, like bow-arrows and axe. It is further the case of the prosecution that amongst Gafrya and Taklya, there were other persons who were present at the time of occurrence and they are - Habdya Barela (who died during the course of investigation or trial); Navalsing Pavara, Dhyan Pavara, Gajarya Pavara and Zanzrya Pavara etc. It is alleged that all these accused formed unlawful assembly and they were holding deadly weapons, like bow-arrows and axe. It is further said that initially they have assaulted Lukdya ( P.W.2) and his mother - Phulkibai, who tried to intervene when her son was being assaulted. It is further said that thereafter the accused persons, more particularly, appellant - Gafrya and his companion Taklya came in front of the hut/house of Mukhiya - Khajan and shouted and challenged - "____________________________________" (Khajan you come out of the house, We will kill you). It is stated that P.W.1 - Husala, P.W.2 - Lukdya and others were present at the spot. It is further said that they were threatened by the assailants by saying "______________________________" (You should leave the place immediately). It is further stated that P.W.1 - Husala, is said to have witnessed the incident in question and he claims to have seen that arrows were shot by the accused persons, i.e. appellant Gafrya and Taklya and they have also assaulted deceased Khajan. It is further stated that P.W.1 - Husala, is said to have witnessed the incident in question and he claims to have seen that arrows were shot by the accused persons, i.e. appellant Gafrya and Taklya and they have also assaulted deceased Khajan. It is further said that after assaulting Khajan, the assailants left the place and it is at this juncture, Husala and others returned to the place of occurrence when they noticed that deceased Khajan sustained severe bleeding injuries and though they wanted him to shift him to the nearby hospital and inform the incident to the police patil concerned, they could not do so as the hamlet is situated in thick forests surrounded by mountains. There was darkness and the village, where the police patil resides, was at a long distance and there were no roads, lights. 4 It is the case of the prosecution that on the next day, i.e. on 28th October, 1993, at early hours in the morning, the complainant and some of his associates left the hamlet and went to village Mohamandali and informed the incident to the Police Patil (P.W.3) - Emam. Thereafter, the party went to Faizpur police station and narrated the incident to the police and a report to that effect was reduced into writing by P.W.6 - Sadashiv Tukaram Bhadane, who registered the offence and proceeded towards the place of occurrence. P.S.I. Sadashiv Bhadane drew Inquest panchanama, spot panchanama, seizure panchanama and arranged for sending the dead body to the Municipal Hospital at Savada and thereafter recorded the statements of the witnesses and carried out further investigation. 5. In the meanwhile, P.S.I. Sadashiv Bhadane, received Injury Certificates in respect of the injuries sustained by P.W.2 - Lukdya and his mother - Phulkibai. He also received post mortem notes. He also received the bloodstained clothes, which were on the person of the deceased. 6. During the course of investigation, P.S.I. Sadashiv Bhadane arrested accused Taklya on 4th of November, 1993, who later on seems to have made statement, which according to the prosecution, led to discovery of an axe, used in the commission of the offence, and which is said to have been hidden in Borkheda Shivar. Memorandum Panchanama, recording the statement of the accused was drawn at Exhibit-15. Memorandum Panchanama, recording the statement of the accused was drawn at Exhibit-15. It is said that the axe was discovered at the instance of the said accused and the same was seized under seizure panchanama (Exh.16) 7. As the other accused, including the present appellant - Gafrya, were absconding, charge sheet was filed only against Taklya for the offence punishable under sections 147, 148, 302 read with section 149 of the Indian Penal Code. 8. At the threshold, it must be stated that Taklya Barela, a co-accused, was tried in Sessions Case No. 235/1995 before learned 4th Additional Sessions Judge, Jalgaon (Shri N.V.Deshmukh). Taklya was convicted for the said charge and presently he is undergoing the sentence of imprisonment at Central Jail, Harsool, Aurangabad. 9. Admittedly, the present appellant - Gafrya was arrested on 17th December, 2004, i.e. after about 11-12 years from the date of incident. He was arrested at village Balwadi in Bhagwanpur taluka of Khargaon district in the State of Madhya Pradesh. Police Sub Inspector (P.W.5) - Vilas Atmaram Sonawane carried out usual investigation and filed charge sheet against the appellant on 14th March, 2005, on the basis of which, Regular Criminal Case No. 14/2005 was registerd and learned J.M.F.C. was pleased to commit the case to the Court of Session, Jalgaon by committal order dated 12th April, 2005. Consequently, the case was registered as Sessions Case No. 57/2005. Charge was framed against the appellant at Exhibit-3 on 14.6.2005. The appellant/accused was called upon to submit his defence, to which the accused denied and claimed to be tried. 10. During the course of the trial, the prosecution has examined as many as seven witnesses in order to prove its case. Out of seven witnesses, P.W.1 - Husala and P.W.2 - Lukdya, are the eye-witnesses to the incident in question. P.W.1 - Husala is the complainant, whereas P.W. 2 - Lukadya is an injured eye-witness. P.W.3 - Emam is the Police Patil of village Mohamandali, where the occurrence took place. P.W.4 - Dr. Vijay Dinkar Patil was Medical Officer of Municipal Hospital, Savada. He examined the injured ( P.W.2) Lukdya and his mother - Phulkibai and issued the injury certificates at Exhibits-17 and 18 respectively. He also conducted autopsy of the dead body of deceased Khajan and issued post mortem report (Exh.19). P.W.4 - Dr. Vijay Dinkar Patil was Medical Officer of Municipal Hospital, Savada. He examined the injured ( P.W.2) Lukdya and his mother - Phulkibai and issued the injury certificates at Exhibits-17 and 18 respectively. He also conducted autopsy of the dead body of deceased Khajan and issued post mortem report (Exh.19). The cause of death, according to the medical officer, is shock and hemorrhage due to injuries to vital organs like heart, lung and spleen. 11. P.W.5 - Vilas Atmaram Sonawane is P.S.I. of Faizpur Police Station, who conducted the investigation in respect of the appellant. After his arrest on 17th December, 2004, charge sheet for the offence punishable under section 147, 148, 302 read with section 149 of I.P.C. was filed. P.W.6 - Sadashiv Tukaram Bhadane, is the P.S.I. attached to Faizpur Police Station when the incident in question occurred and who carried out the initial investigation, filed charge sheet and successfully brought the conviction of arrested accused - Taklya in Sessions Case No. 235/1995. Lastly, the prosecution examined P.W.7 - Samser Husen Tadvi, who is a panch witness. Discovery of axe was made at the behest of accused Taklya on 6th November, 1993. That part is insignificant for the present matter, but in order to place on record complete story, we made reference to the said fact. 12. Before appreciating the evidence that was brought on record, we would like to note certain significant aspects. The incident in question occurred on 27th October, 1993. The appellant was arrested on 17th December, 2004, i.e. after about 11-12 years and depositions of the prosecution witnesses were recorded during the period 19th of September,2005 to 13th December, 2005. It is also pertinent to note that all the witnesses are Adivasis (Tribals), illiterate and not conversant with the court proceedings. They were cultivating forest land for their livelihood. Their life was otherwise peaceful, but, for the incident in question, which occurred on account of "Moh" (i.e.greed) for cultivation. Thus, it is but natural that the witnesses, who were examined before the court after a gap of about 12-13 years from the date of incident, cannot be expected to give past events relating to the occurrence with mathematical precision. 13. Thus, it is but natural that the witnesses, who were examined before the court after a gap of about 12-13 years from the date of incident, cannot be expected to give past events relating to the occurrence with mathematical precision. 13. We have heard Shri Rahul P.More, learned Counsel for the appellant, who was appointed to prosecute the appeal on behalf of the prisoner/appellant as well as Shri Keshavrao B.Choudhari, learned Additional Public Prosecutor appearing on behalf of the Respondent/State. We must state that the learned Counsel Shri Mote has discharged his duty by presenting all the facts of the case and point of law available in the matter and we appreciate the same. Equally, learned Additional Public Prosecutor Shri Choudhari vehemently supported the judgment delivered by the learned Sessions Judge and prayed for confirming the same by dismissing the appeal of the appellant/accused. 14. Before we proceed to appreciate the evidence on record, we would like to observe that the learned Sessions Judge appreciated the evidence on record with cautious approach. The learned Sessions Judge accepted the evidence of P.W.1 - Husala and P.W.2 - Lukdya to be truthful, reliable and natural. The learned Sessions Judge has also found that the injuries sustained by deceased Khajan were caused due to blow of weapons, like bow-arrow and axe. The learned Sessions Judge also accepted the prosecution case that, initially the assailants injured P.W.2 - Lukdya and his mother Phulkibai, who intervened when the assailants were assaulting him. The learned Judge also accepted the prosecution case that it is the appellant - Gafrya, who shot arrows towards deceased Khajan and thereafter co-accused Taklya assaulted him with blunt side of axe. The learned Sessions Judge carefully appreciated the evidence on record and came to the conclusion that the prosecution has proved that the appellant is guilty for the offence punishable under sections 147, 148, 302 read with section 149 of the Indian Penal Code and consequently convicted and sentenced the appellant as aforesaid. 15. We have considered the chart prepared by learned Counsel for the appellant Shri Mote, pointing out certain discrepancies and contradictions occurred in the evidence of P.W.1 and P.W.2. He has further submitted that there appears to be doubt and according to learned Counsel, it is possible that the incident in question had not occurred as per the story put up by the prosecution. He has further submitted that there appears to be doubt and according to learned Counsel, it is possible that the incident in question had not occurred as per the story put up by the prosecution. It was contended that the prosecution case appears to be doubtful and appellant deserves to be given benefit of doubt. On the other hand, learned A.P.P. Shri Choudhari has taken us through the entire record and pointed out that the contradictions, pointed out by learned Counsel for the appellant, are not material. He has further submitted that such contradictions cannot be said to be material and they are bound to occur as the eye-witnesses examined by the prosecution have deposed before the court regarding the alleged incident after about 12-13 years. It is further submitted that the witnesses are tribals, illiterate and not conversant with the court proceedings and, therefore, the discrepancies and contradictions, pointed out by learned counsel for the appellant, even if accepted, are natural. He has further submitted that there is no reason to interfere with the finding of fact which is based on proper appreciation of evidence recorded by learned Sessions Judge. 16. With the assistance of learned counsel for the parties, we have perused the evidence on record and we are of the view that P.W.1 - Husala, was cousin of deceased Khajan and he was naturally present at the spot in question. He has not sustained the injury, but he claims that he has witnessed the incident in question at some distance. He has stated that he left the place of occurrence due to the threats given by the assailants. He is the complainant in the instant case, on the basis of which, further investigation was carried out. We feel that there are no material contradictions and we find that he was present at the spot and he has witnessed the incident in question and, therefore, we reject the contention of Shri Mote, learned Counsel for the appellant, that the eye witness account of P.W.1 be discarded. . So far as evidence of P.W.2 is concerned, we find that he is an injured witness. Even his mother - Phulkibai was not spared by the assailants. Both, P.w.2 and his mother, had sustained bleeding injuries, in respect of which, Dr.Vijay Patil (P.W.4) has issued Injury Certificates (Exhibits-17 and 18) and proved the same. . So far as evidence of P.W.2 is concerned, we find that he is an injured witness. Even his mother - Phulkibai was not spared by the assailants. Both, P.w.2 and his mother, had sustained bleeding injuries, in respect of which, Dr.Vijay Patil (P.W.4) has issued Injury Certificates (Exhibits-17 and 18) and proved the same. We find no difficulty in accepting the account of incident given by P.W.2 as natural and truthful. 17. Apart from the evidence of the eye-witnesses, including the injured eye witness, there is medical evidence on record which corroborates the prosecution case saying that the injuries sustained by deceased Khajan were caused by shot of arrows as well as blow of axe. The eye-witness account is perfectly matching with the medical evidence and there is no difficulty in accepting the prosecution case that it is the appellant and his companion - Taklya, who had shot the arrows and caused injuries to deceased Khajan. 18. The appellant Gafrya and co-accused - Taklya were charged for the offences punishable under sections 147, 148, 302 read with 149 of IPC. Even for the sake of argument it is accepted that there are certain discrepancies, as pointed out by learned Counsel for the appellant, regarding sequence or events of narrating the incident in question, we are of the firm view that the appellant was present at the place of occurrence and he took active part in causing injuries upon the victim and thus he cannot escape his liability. Therefore, the offence punishable under sections 147, 148, 302 read with section 149 of the Indian Penal Code, is squarely attracted and we see no reason to interfere with the impugned judgment and order of conviction and sentence recorded by the learned Sessions Judge. In the result, the appeal fails and is accordingly dismissed. . Registry to provide a certified copy of this Judgment and order to the appellant/accused, free of costs. . Shri Rahul P.Mote was appointed to prosecute this appeal on behalf of the appellant/accused, we quantify professional charges at Rs. 4,000/-.