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2013 DIGILAW 1487 (BOM)

Prabhakar Ambaji Bhagwat v. State of Maharashtra

2013-08-01

MRIDULA BHATKAR, V.K.TAHILRAMANI

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Judgment : (Mrs. Bhatkar, J.) 1. The learned 6th Additional Sessions Judge, Pune, by judgment and order dated 28.5.2008 in Sessions Case No.259 of 2006 has convicted the appellant for the offence of murder punishable u/s 302 of the Indian Penal Code and thereby sentenced him to suffer R.I. for life and payment of fine. He has also convicted the appellant u/s 448 of the Indian Penal Code and sentenced him to suffer R.I. for six months. 2. It is the case of the prosecution that one Lawrence Christi, the deceased, was residing in Lashkar Camp, Pune alongwith his family members including son Leonard (PW 1) and daughter Miranda (PW 2) in the year 2006. The accused was his neighbour. The accused was initially running the business of gambling and also selling illicit liquor. On the night of 13th and 14th January, 2006, at around 11.30 pm to 12 am, the accused entered the house of the deceased and started abusing and throwing articles in the house here and there. At that time, the deceased Lawrence, his daughter Miranda and his grand daughter were present. His son Leonard (PW 1), came at around 12.30 am and Miranda (PW 2) informed him about the incident. So, Miranda (PW2), Leonard (PW1) and the daughter of Leonard went to Charbavdi police station to lodge a complaint. At that time, Lawrence was alone in the house. When they returned home from the police station, they found articles in the portion of the kitchen were broken and thrown all over in the house and Lawrence was injured. Lawrence had sustained head injuries. At that time, the deceased told his son Leonard (PW 1) and daughter Miranda (PW 2) that the accused had entered their house and he gave him blows with some hard stone like object on his head and right eye. Blood was flowing from the injuries of Lawrence. So he was immediately shifted to the Sassoon Hospital. He was admitted in the Sassoon hospital and treated by PW 7 Dr.Mahesh Lavate. PW 1 Leonard again went to Charbavdi police station and gave complaint against the accused. The Investigating Officer PSI Arvind Bhosale (PW5) immediately recorded FIR (exhibit 6) in the early morning of 14.1.2006. PW5 Bhosale registered offence at C.R. No.5 of 2006 u/s 325 and 452 of the Indian Penal Code against the accused. PW 1 Leonard again went to Charbavdi police station and gave complaint against the accused. The Investigating Officer PSI Arvind Bhosale (PW5) immediately recorded FIR (exhibit 6) in the early morning of 14.1.2006. PW5 Bhosale registered offence at C.R. No.5 of 2006 u/s 325 and 452 of the Indian Penal Code against the accused. PW 5 Bhosale thereafter drew spot panchanama (exhibit 23). On 14.1.2006, the accused was arrested at around 10.45am. Blood stained clothes of the deceased were seized under panchanama (exhibit 24). On 15.1.2006, PW 5 Bhosale recorded statement of Lawrence, who was under treatment in the hospital. On 16.1.2006, at the instance of the accused, the blood stained Shahabadi tile (article 4) was recovered under the memorandum and panchanama to that effect was drawn (exhibit 27). However, Lawrence succumbed to the injuries and breathed last on 29.1.2006. After his death, the Investigating Officer had registered offence of murder punishable u/s 302 of the Indian Penal Code against the accused. 3. The police recorded statements of the witnesses and filed chargesheet in the Court of Judicial Magistrate, Pune Cantonment and the learned Magistrate committed the case to the Court of Sessions. After framing charge against the accused, the accused was tried by the learned Additional Sessions Judge, Pune and the trial was concluded in conviction of the appellant and hence, this Appeal. 4. PW1 Leonard Christi, son of the deceased, PW2 Miranda, daughter of the deceased and PW4 Dilip Shinde, who is the neighbour of the deceased, are the important witnesses, who have stated all the material circumstances against the accused. PW1 Leonard is the complainant. He has stated that the accused was residing near their house and he used to threaten the people and there was terror about him in the minds of others in the vicinity. PW2 Miranda has deposed that on 14.1.2006, her father and she were in the house. At that time, the accused came to their house and started abusing them. He broke their refrigerator and so she called her brother. PW 1 Leonard came home and at that time PW 2 Miranda narrated this incident to her brother. Both the witnesses have stated that thereafter they went to Charbavdi police station to lodge complaint against the accused and they returned at around 1.15am. When they came back, they found that the articles in the kitchen were scattered all over in broken condition. Both the witnesses have stated that thereafter they went to Charbavdi police station to lodge complaint against the accused and they returned at around 1.15am. When they came back, they found that the articles in the kitchen were scattered all over in broken condition. They found their father was injured. There was blood coming from the head and face injuries. When they asked their father as to what happened to him, he told them that the accused had beaten him with some hard stone like object on his face and on various parts of his body. Both of them shifted Lawrence to Sassoon hospital. He was admitted in the hospital and treated there. PW1 has further stated that he went to the police station and reported the incident of assault on his father to the Investigating Officer. 5. PW 5, PSI Bhosale, has supported the evidence of PW 1 and PW 2 that on 14.1.2006, at around 5am, Lawrence was admitted in Ward No.7 of the Sassoon Hospital with injuries and his son gave statement. He recorded the FIR and registered offence at C.R. No.5 of 2006. PW 4 is an independent witness. 6. PW 4 Dilip Shinde gives the topography of the house of the accused and the house of the deceased. This witness being a neighbour, knew the family of the deceased and also the accused. He stated that the deceased was residing in front of his house and the house of the deceased is situate to the west side of the house of the deceased. He has deposed that the accused used to consume liquor and used to hurl abuses. He has stated that on the night of the incident, he saw the accused hurling abuses to the deceased Lawrence. The refrigerator and other articles were found lying scattered in the house of the deceased. Thereafter, PW1 Leonard and PW 2 Miranda told the accused that they would go the police station to lodge the complaint and then went to the police station to lodge the report. He has stated that after some time, he heard noise of violence and he saw the accused inside the house of the deceased. After some time, Leonard and Miranda came home and they took Lawrence in an auto rickshaw to the hospital. He has stated that after some time, he heard noise of violence and he saw the accused inside the house of the deceased. After some time, Leonard and Miranda came home and they took Lawrence in an auto rickshaw to the hospital. Learned defence Counsel while assailing the evidence of this witness has submitted that this witness being a neighbour, is an interested witness and has given admission in cross-examination in respect of improvement. He admitted that he did not see the accused actually assaulting the deceased. He admitted that he did not state the police that he saw the appellant coming out of the house of the deceased after 5 minutes of his entry in the house. He admitted that the fact that he came out of the house after hearing the noise and the violence was not stated by him before the police. The learned Counsel on the basis of these improvements developed the argument that the presence of this witness or he witnessing any such incident is doubtful. He further submitted that if at all this witness was present, then he should have prevented the accused from assaulting the deceased and he would have also helped PW1 Leonard and PW 2 Miranda to take the deceased to the hospital. 7. The submissions of the learned Counsel cannot be accepted as the omissions are not significant and moreover, on perusal of the statement recorded under section 161 of this witness, we find that on the point of seeing the incident of abuse, throwing articles by the accused and the entry of the accused in the house of the deceased in the absence of his children is not an omission or improvement. His evidence discloses that the house of the deceased and the witness were very close. The house of the deceased was consisting of one room and it was divided by a curtain. The said house was infront of the house of the witness. So the things were visible to the witness which had taken place in the room of the deceased. As per the case of this witness, the accused had entered the house of the deceased initially and he abused the family members and threw the articles all over. Thereafter, PW1 and PW 2 went to the police station to lodge the complaint and in between the accused entered the house of the deceased. 8. As per the case of this witness, the accused had entered the house of the deceased initially and he abused the family members and threw the articles all over. Thereafter, PW1 and PW 2 went to the police station to lodge the complaint and in between the accused entered the house of the deceased. 8. The evidence of PW4 corroborates the evidence of the PW1 and PW2 in all material particulars and also further proves that the accused had entered the house of the deceased in the absence of PW1 and PW 2. He has also stated that the articles in the house of the deceased were broken and they were thrown. PW1 and PW2 immediately returned home at around 1.30am. Thus, there was a gap of hardly an hour when PW 1 and PW2 were not present in the house during which time they went to the police station to lodge the complaint. 9. On the background of this evidence, we do not find any reason to disbelieve the deposition of PW 1 and PW2 that the deceased told them that the accused had entered the house. He beat him with stone like object on number of times on his face. Nothing is elicited in the cross-examination of these witnesses. The witnesses being the relatives of the deceased, cannot be the reason to discard the evidence muchless the evidence of the neighbour PW 4 Dilip Shinde. 10. Learned defence counsel has submitted that the prosecution could not prove discovery of the stone that the shahabadi tile (article 4). In the evidence of PW6 Sardar Khan, who deposed on the discovery memorandum (exhibits 27) and seizure panchanama (exhibit 30), PW 6 has given admission that signature of other panch Altaf Shaikh is not seen. He has further submitted that the shahabadi tile (article 4) was found in the Taboot street in the Camp area which was outside the house of the accused. He submitted that this panchanama was drawn two days after the incident i.e., on 16.1.2006. It is a bogus panchanama and if the panchanama is discarded, then the prosecution has not proved the object with which the deceased was assaulted and this is a major lacuna in the case of the prosecution and that benefit of doubt be given to the accused. 11. It is a bogus panchanama and if the panchanama is discarded, then the prosecution has not proved the object with which the deceased was assaulted and this is a major lacuna in the case of the prosecution and that benefit of doubt be given to the accused. 11. It is true that the Panchanama was drawn two days after the incident and the Shahabadi tile (article 4) stained with blood was found under the heap of clay outside the house of the accused. The Panch in his deposition has admitted that one Altaf Shaikh was present and accompanied him and he admitted that on memorandum (exhibit 27) and seizure panchanama (exhibit 30), no signature of Altaf Shaikh is seen. Thus, on perusal of these exhibits, we hold that in the absence of signature of other panch i.e., Altaf Shaikh which are not found, the panchanama is doubtful and we do not rely on the same. 12. Though we discard this panchanama u/s 27 of the Evidence Act, we are of the opinion that there is enough material on record against the accused to hold him guilty for the commission of the offence. The offence of PW1, PW 2 and PW4 is fully credit worthy and sufficient to hold the appellant guilty for the offence u/s 302 of the Indian Penal Code. Though there is no eye witness on the point of assault, the things have taken place in such a sequence and the proximity of the incidents which are narrated to by PW1, PW2 and PW4 in respect the movements of the accused are also found to be strong circumstances against the accused. PSI Bhosale (PW5) has recorded the statement of the deceased on 15.1.2006. This statement is proved by the prosecution as exhibit 26. The deceased died on 29.1.2006 and so his statement, being a dying declaration was, led in the evidence. In the dying declaration, the deceased has stated that the accused hit him with a stone like blunt object on his face and head. 13. Lastly, we deal with the medical evidence which is produced through PW3 Dr.Chanderkar and PW 7 Dr.Mahesh Lavate. PW3 has conducted the postmortem examination and produced the notes thereof (exhibit 14). He gave description of external and internal injuries and he stated that there were injuries on the head and the right eye. The evidence of PW 7 Dr.Lavate is very important. PW3 has conducted the postmortem examination and produced the notes thereof (exhibit 14). He gave description of external and internal injuries and he stated that there were injuries on the head and the right eye. The evidence of PW 7 Dr.Lavate is very important. Dr.Lavate was on duty on 14.1.2006 at Sassoon hospital. He attended the patient first. There was history of assault. He has deposed that there were many injuries on the body of the patient. Dr.Lavate deposed that there were many head injuries and he described the fractures as follows: “There were fractures in lesser wing of sphenoid on right side. There was linear fracture of lesser wing of left sphenoid. There was linear undisplaced fracture of right temporal bone. Fracture was noted in pterygoid plate on left side. There was fracture of right petrous temporal bone. There was fracture of medial wall of right maxilla, potero lateral wall of left maxilla. There was fracture of lamina payracea of let. There was fracture of anterior wall of left frontal sinus.” Dr.Lavateopined that the injuries to the eye and head of the patient were sufficient in ordinary course of nature to cause his death. The said injuries were “possible by successive blows of hard and blunt object”. Thus, the medical evidence discloses that the appellant did not stop after giving a single blow but he continued assaulting the deceased and gave successive blows on the vital part of the deceased. The deceased was 65 years old and sleeping in the interior portion of his house. 14. Thus, we have no hesitation to hold that the prosecution has proved the case against the accused of commission of murder. The trial Court has properly appreciated the evidence and we are not inclined to interfere with the same. 15. Appeal is, therefore, dismissed. 16. Office to communicate this order to the Appellant and the Superintendent of jail where the appellant is lodged i.e., Yerwada Central Prison. 17. At this stage, we must record our appreciation for the able assistance rendered by the learned advocate Mr.Apte, who was appointed to represent the appellant in this appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.2,500/-.