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2011 DIGILAW 1392 (BOM)

Vilas s/o Vasantrao Purke v. State of Maharashtra

2011-11-17

P.V.HARDAS, PRASANNA B.VARALE

body2011
JUDGMENT (Per P. V. HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life, by the 1st Ad hoc Additional Sessions Judge, Wardha, by judgment and order dated 11/8/2005, in Sessions Trial No.79/2003, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P. W.9 Pralhad Giri, who was attached to Police Station Seloo as a Police Inspector, investigated Crime No.49/2003, which had been registered by Head Constable Maroti Kamble on the basis of the report of P.W.7Suman Jugnake at Exh.58. The printed First Information Report is at Exh.59. P.W.9Pralhad Giri, Police Inspector, proceeded to the scene of the offence and drew the scene of the offence panchanama in the presence of panch witnesses at Exh.42. A Photographer was called, who took photographs of the scene of the offence. The photographs are Articles A to D. From the scene of the offence samples of blood stains mud and ordinary mud as well as sample of hair came to be seized vide seizure memo at Exh.43. Inquest panchanama of the dead body of deceased Arun came to be drawn at Exh.41. Dead body of deceased Arun was referred for postmortem examination to the Sewagram Hospital vide requisition at Exh.69. The appellant/accused came to be arrested under arrest panchanama at Exh.70. 3. Clothes on the person of the appellant came to be seized vide seizure memo at Exh.71. The appellant was referred for medical examination to the Primary Health Centre, Seloo vide requisition at Exh.72. The report of medical examination is at Exh.73. During custodial interrogation, the appellant expressed his willingness to point out the place where he had concealed the weapon of assault. Accordingly, a memorandum at Exh.38 came to be drawn in the presence of panchas. The appellant then led the police and the panchas to a place in village Moi and led the police and the panchas to the house of original accused No.2Laxman. Laxman was called out and was asked to hand over the weapon, which had been handed over to him by the appellant. The weapon came to be seized under seizure memo at Exh.74. Laxman was called out and was asked to hand over the weapon, which had been handed over to him by the appellant. The weapon came to be seized under seizure memo at Exh.74. Laxman came to be arrested and was referred to the medical hospital for drawing his blood sample along with the requisition at Exh.75. The report is at Exh.76. The sample of blood, hair and nail clippings came to be seized under seizure memo at Exh.78. Clothes of deceased came to be seized vide seizure memo at Exh.47. The weapon was referred to the Sewagram Hospital for opinion of the expert along with requisition at Exh.79. The report of Medical Officer is at Exh.52. The Revenue Inspector was requested to draw the map of the scene of the panchanama. Accordingly, P.W.6 Vinod Agrawal drew the map of the scene of the incident at Exh.55. The photographs and the negatives came to be seized under seizure memo at Exh.45. The seized property was referred to the Chemical Analyzer along with requisition at Exh.85. Further to the completion of the investigation, the chargesheet against the appellant and original accused No.2Laxman came to be filed. 4. On committal of the case to the Court of Session, the trial Court framed charge vide Exh.22 against the appellant for offence punishable under Section 302 of the Indian Penal Code and under Section 201 of the Indian Penal Code against original accused No.2Laxman. The accused denied their guilt and claimed to be tried. 5. The prosecution in support of its case examined twelve witnesses. The prosecution case raises upon the testimony of P.W.7Suman Jugnake, mother of deceased Arun and P.W.8 Shiodas Jugnake, brother of deceased Arun, who were examined as eye witnesses. The prosecution also relied upon the recovery of the weapon as well as the findings of the Chemical Analyzer in its report at Exh.32. The trial Court accepted the evidence of the prosecution witnesses and convicted and sentenced the appellant while acquitting original accused No.2 Laxman. 6. In order to effectively deal with the submissions advanced before us by Shri R.M. Daga, learned Counsel for the appellant and Shri T.A. Mirza, learned Addl. P. P. for the respondent/State, it would be useful to refer to the evidence of the prosecution witnesses. P.W.7Suman Jugnake, mother of deceased Arun, states that she is acquainted with the accused. 6. In order to effectively deal with the submissions advanced before us by Shri R.M. Daga, learned Counsel for the appellant and Shri T.A. Mirza, learned Addl. P. P. for the respondent/State, it would be useful to refer to the evidence of the prosecution witnesses. P.W.7Suman Jugnake, mother of deceased Arun, states that she is acquainted with the accused. According to her, on the day of the incident at about 900 p.m. the appellant had arrived at her house and deceased son Arun was demanding Rs.500/from the appellant. The appellant replied that he would not pay the said amount to deceased Arun. Arun thereafter informed the appellant that he would lodge a report at the Police Station. The appellant left the house of P.W.7 Suman Jugnake, but returned again after sometime and took deceased Arun along with him. P.W.7 Suman Jugnake states that she followed them and had gone towards the Neem tree. She had noticed deceased and the appellant talking under the tube light on the road. The appellant thereafter assaulted Arun on his neck by a Sattur (Chopper). On sustaining the injuries Arun fell on the ground. P.W.7Suman Jugnake states that her other son P.W.8Shiodas Jugnake was also present and had seen the incident. She thereafter went to the police station and lodged her report at Exh.58. 7. In cross-examination of P.W.7Suman, nothing of substance has been elicited. Certain suggestions were made to P.W.7Suman in cross-examination, which were denied by her. She has stated that she had shouted and thereafter her husband had also come at the scene of the incident. She has denied the suggestion that Arun had died at about 7.30 p.m. She has denied the suggestion that Arun was under the influence of liquor. She then states that she and her husband got “awakened” and thereafter neighbours also assembled. She has denied the suggestion that nobody had “awakened” “at the time of the incident”. We have perused the vernacular deposition of the witnesses and it appears that instead of the word “assembled”, the word “awakened” has been typed. As pointed out by us above, nothing of substance has been elicited in the cross-examination, which would any manner doubt the veracity of this witness. 8. P.W.8 Shiodas Jugnake, brother of deceased Arun, states that he had gone to the house of one Dnyaneshwar for watching a movie on television. As pointed out by us above, nothing of substance has been elicited in the cross-examination, which would any manner doubt the veracity of this witness. 8. P.W.8 Shiodas Jugnake, brother of deceased Arun, states that he had gone to the house of one Dnyaneshwar for watching a movie on television. After watching the movie, he had left the house of Dnyaneshwar and was proceedings towards Hingni Road. P.W.8Shiodas states that he noticed his brother Arun and the appellant standing under the tube light. He further states that the appellant thereafter assaulted Arun twice on the neck by a Sattur (Chopper). On sustaining the injuries, Arun fell on the ground. P.W.8Shiodas states that he rushed towards his brother and had noticed his mother standing near the house of Dnyaneshwar. He states that his mother also came running to the scene of the incident. In cross-examination, an omission has been elicited that he had not stated to the police that a quarrel had taken place between his brother Arun and the appellant because of demand of Rs.500/. The aforesaid omission unfortunately has not been proved through the evidence of the Investigation Officer. He has denied to have stated portion marked 'A' in the statement, wherein he is alleged to have stated that the sister Chanda was present at the scene of the incident. Even this contradiction at portion marked 'A' has not been proved through the evidence of Investigation Officer. He then states as true that nobody was present at the scene when brother Arun died. We have verified this part of the evidence from the vernacular deposition and in the vernacular deposition this witness has stated that none of the villagers were present at the scene of the incident. During cross-examination of this witness also nothing of substance has been elicited to doubt his claim that he had witnessed the incident. 9. Shri R.M. Daga, learned Counsel for the appellant, by referring to the map at Exh.55, initially urged before us that the distance between point 'C' in the map i.e. the place where P.W.8Shiodas was standing and point 'F' in the map i.e. the place where P.W.7Suman was standing is 600 feet and consequently neither P.W.7Suman nor P.W.8Shiodas could have noticed the presence of each other. The evidence of the Investigating Officer is to the contrary. The evidence of the Investigating Officer is to the contrary. The Investigation Officer states that the scene of the incident is at a distance of 600 feet from the house of the accused and not the distance between the place where these witnesses were standing. 10. Shri R.M. Daga, learned Advocate then urged before us that no reliance can be placed on the discovery of the weapon i.e. chopper because the same was discovered at the instance of original accused No.2Laxman. Since we find that the evidence of the eye witnesses is cogent and reliable and there is overwhelming evidence of the eye witnesses which points to the complicity of the appellant in the crime, omission to consider the evidence in respect of the discovery and the seizure of clothes of the appellant does not make any dent in the prosecution case. The prosecution case is not weakened in any manner and the appellant, according to us, is not entitled to claim acquittal. 11. Shri R.M. Daga, learned Counsel for the appellant, urged before us that the appellant had sustained injuries in the incident and these injuries have not been explained by the eye witnesses. The Medical Officer, who had examined the appellant, has issued the certificate at Exh.73. The appellant came to be examined on the next day of the incident i.e. on 12/4/2003 at about 1245 p.m. The Medical Officer had noticed (i) abrasion over neck small ½ x ½ cm. in size, (ii) small abrasion over leg ½ x N/2 cm. in size. The Medical Officer has opined that the above injuries might be caused by hard and blunt object and was about 12 hours duration. The aforesaid certificate completely belied the claim of the appellant that he had sustained the injuries in the assault. The incident had occurred on 11/4/2003 at 900 p.m. After the incident, the appellant can be said to have sustained the injury sometime at 1200 midnight. 12. Postmortem on the dead body of deceased Arun was conducted by P.W.5Dr. Pankaj Murke. P.W.5Dr. Pankaj Murke noticed the following external injuries. 1) Incised lacerated wound of size 19 x 8 cm. into cavity deep (neck) on left side of the neck extending from just below to pinna of left ear. Directed backward on Postero lateral aspect of neck on left side margins are irregular. Pankaj Murke. P.W.5Dr. Pankaj Murke noticed the following external injuries. 1) Incised lacerated wound of size 19 x 8 cm. into cavity deep (neck) on left side of the neck extending from just below to pinna of left ear. Directed backward on Postero lateral aspect of neck on left side margins are irregular. Both angles are acute major vessels of neck left Jugular vein and left Carotid artery cut and exposed muscles are cut and lacerated. 2) Incised lacerated wound of size 20 x 6 cm. into cavity deep on right side of neck extending from 3 cm. lateral to right angle of mouth directed backward on lateral and posterior aspect of neck. Margins are irregular major blood vessels of neck right Jugular vein and right Carotid artery cut and exposed. Muscles are cut and lacerated. 3) Incised lacerated wound of size 12 x 3 cm. into cavity deep just below to wound No.2 extending from 6 cm. lateral to adam's apple, directed backward on lateral aspect of neck. Margins are irregular. 4) Abraided contusion of 4 x 2 cm. on left side of face just lateral to left eye. Reddish brown in colour. 5) Abraided contusion of size 3 x 2 cm. on left side forehead just above left eye brows. Reddish brown in colour. 6) C/W of size 3 x 1 cm. on tip of right shoulder subcutaneous deep and crescentric in shape. 13. The Medical Officer has opined that cause of death was due to haemorrhage and shock as a result of injury to major blood vessels in the neck as well as injury to spinal cord by sharp and heavy weapon. The post mortem report is at Exh.51. 14. Upon consideration of the entire prosecution case, according to us, the prosecution has established the offence against the appellant beyond reasonable doubt and there is no merit in the present appeal. The present appeal is, therefore, liable to be dismissed. 15. Accordingly, criminal appeal is dismissed confirming the conviction and sentence. Appeal dismissed.