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2013 DIGILAW 18 (BOM)

Ashok s/o. Vithoba Sarpe v. State of Maharashtra

2013-01-03

A.B.CHAUDHARI, A.P.LAVANDE

body2013
Judgment : A.B. CHAUDHARI, J. :- Being aggrieved by the judgment and order dated 8.5.2008, passed by the Sessions Judge, Gadchiroli, convicting the appellant/accused - Ashok for the offence punishable under Section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life, the present appeal was filed by the original accused/appellant. 2. In support of the appeal, learned Counsel for the appellant vehemently made the following submissions. (A) That perusal of the impugned judgment and order recorded by the learned trial Judge shows no application of mind or marshalling of evidence, which is a prerequisite for coming to any conclusion. The learned trial Judge was duty bound to record reasons in the judgment for believing the testimony of the witnesses examined by the prosecution. (B) The trial Judge committed an error in relying upon the testimony of the complainant P.W.1- Ambabai Sarpe, P.W.5 -Kavita Raut and P.W.6 -Lilabai Kapat for holding that the appellant had assaulted the deceased with deadly weapon and had thus committed murder. It ought to have been seen by the learned trial Judge that the evidence of these witnesses was discrepant and did not inspire confidence. The incident is said to have taken place near a public place where several villagers gathered. However, only interested witnesses have been examined when independent witnesses could be examined. (C) The evidence of P.W.1 -Ambabai Sarpe, P.W.5 -Kavita Raut and P.W.6 -Lilabai Kapat if take n together and appreciated, it will be seen that the same was liable to be rejected. The learned Counsel then contended that the evidence of Lilabai also cannot be believed because she had not seen the incident she being at her home. However, the learned trial Judge has ignored the said aspect of the matter. (D) The appellant could not be held guilty of murder in the absence of any evidence regarding motive since the deceased was real brother of the appellant. As a matter of fact none of the witnesses has actually seen the incident. In the alternative, the learned Counsel submitted that the appellant could not be held guilty of the offence of murder and looking to the nature of injuries, the same could be only under Section 304 Part II of Indian Penal Code. 3. As a matter of fact none of the witnesses has actually seen the incident. In the alternative, the learned Counsel submitted that the appellant could not be held guilty of the offence of murder and looking to the nature of injuries, the same could be only under Section 304 Part II of Indian Penal Code. 3. Per contra, the learned Additional Public Prosecutor supported the impugned judgment and order and argued that the ocular account of the witnesses examined by the prosecution, namely Ambabai Sarpe, Kavita Raut and Lilabai Kapat is consistent and has not been at all shaken in the cross-examination. There is no reason why the evidence could be discarded as argued by the learned Counsel for the appellant. The First Information Report was immediately lodged after the incident and the attack made by the appellant was so dastardly that Vasanta expired on the same day. The learned Additional Public Prosecutor, therefore, prayed for dismissal of the appeal. 4. We have gone through the impugned judgment and order made by the learned trial Judge. We have seen the entire evidence with the assistance of the learned Counsel for the parties. We have heard the learned Counsel for the rival parties. 5. At the outset, we find upon reading of the judgment of the trial Court that the trial Judge did not discuss the evidence of the prosecution witnesses properly but adopted a shortcut method by coming to the conclusion of guilt. Being the first Court, it was the duty of the learned trial Judge to discuss the evidence and then draw the conclusion rather than be cryptic. However, we find that this being the criminal appeal, this Court is entitled to re-appreciate the entire evidence that was tendered before the trial Court, marshall the same and then record finding's based thereon. That apart, this is a jail appeal pending in this Court since last four years. Therefore, we do not think it proper to remit the matter to the trial Court for writing judgment. Instead we have decided to undertake the entire exercise. 6. P.W.1 -Ambabai Sarpe deposed that the appellant is her nephew so also the deceased Vasanta. Both these brothers were staying separately in the village. But they were addicted to liquor. Therefore, we do not think it proper to remit the matter to the trial Court for writing judgment. Instead we have decided to undertake the entire exercise. 6. P.W.1 -Ambabai Sarpe deposed that the appellant is her nephew so also the deceased Vasanta. Both these brothers were staying separately in the village. But they were addicted to liquor. At about 4:00 p.m. on the date of incident, she was sitting with fried grams for sale near the electric pole in the village when deceased Vasanta arrived at the Pan shop of Santosh Shete for eating 'Kharra'. The appellant Ashok also came there and struck a blow of knife on the left wrist of Vasanta, cutting it into two pieces and the left palm thus amputated and fell on the ground. Thereafter, appellant struck another blow on the neck of Vasanta, who fell down. She intervened but the appellant threatened her to kill. Thereafter, the appellant marched with a knife towards the Bus Stand. Vasanta was lying in injured condition and thus taken to hospital in the police jeep. She lodged report to police station at Exhs.11 and 12. On the same day, Vasanta died in the hospital. Perusal of the cross-examination of this witness shows that both appellant and Vasanta were doing tailoring work and they had no dispute. That there were many villagers near the square, where the incident took place and they had gathered as there was a commotion. On the material particulars of the incident discussed by us above there is hardly any cross-examination to this witness. We have seen the F.I.R. (Exhs.11 and 12) and we find that F.I.R. corroborates her evidence before the Court. 7. P.W.S - Kavita Raut is a girl of 15 years. She had gone to the house of her maternal uncle Diwakar and while returning, near the Chambhar Mohalla, she found Ashok and Vasanta were quarrelling. Ashok struck a blow of knife on the left hand of Vasanta and seeing that she rushed to her house and again came back to find that Ashok was inflicting blows of knife on the neck of Vasanta, who then died. In the cross-examination, she denied the suggestion that deceased Vasanta had illicit relation with sister of wife of appellant Ashok. In the cross-examination, she denied the suggestion that deceased Vasanta had illicit relation with sister of wife of appellant Ashok. She admitted that many people had rushed at the scene of the offence and she came to know about the death of Vasanta on reaching home. She denied that she had not seen the incident of Ashok giving blows of knife at the hand and neck of deceased Vasanta. The cross-examination of this witness does not at all advance the case of the appellant anywhere and the material portion regarding incident proper has been duly proved by her. The next witness is P.W.6- Lilabai Kapat. She deposed that the incident took place at about 4:00 p.m. when she was sitting at home and her house is situated in the square, where the incident took place. She saw that Ashok, the appellant and Vasanta, the deceased were quarrelling. She saw that Ashok struck a blow of knife firstly at the hand of Vasanta and then on his neck. She got frightened and returned to her house. Cross-examination of this witness shows that she has denied that she was away from the spot of the incident. She also denied that she had not seen the incident. Except these suggestions, there is nothing in the cross-examination to disbelieve her evidence. 8. Looking at the evidence of all these three eyewitnesses, we are fully satisfied that the testimony of these witnesses is trustworthy, consistent and has clearly proved that it was the appellant Ashok, who assaulted deceased Vasanta with deadly weapon. We have seen the knife that was seized from the appellant. Looking to the knife, which is heavy, we are prepared to believe that first blow that was given by the appellant on the wrist of Vasanta must have severed the wrist from the hand. There is no reason for us to disbelieve that it was amputated and fell on the ground. The appellant did not stop there and went ahead, assaulted with the said deadly weapon on the neck of Vasanta and caused injuries to him. The post mortem report and the injuries clearly show that the injuries are of very serious nature and caused only with intention to kill the deceased Vasanta. The appellant did not stop there and went ahead, assaulted with the said deadly weapon on the neck of Vasanta and caused injuries to him. The post mortem report and the injuries clearly show that the injuries are of very serious nature and caused only with intention to kill the deceased Vasanta. Not only that the appellant had discovered the knife that was used in the crime and we find from the evidence of P.W.4-Vilas Gurnule and P.W. 7 -Sanjay Latkar that the same is believable and therefore, we hold that discovery under Section 27 of the Indian Evidence Act was proved. The clothes were also attached. The Chemical Analyzer's report shows that the knife Article - 10 was found stained with blood of blood group - A and the garments of deceased Vasanta carried the said blood group. The clothes of the appellant, namely shirt, banian, full pant, panty, pair of chappal were also found stained with the blood group - A of the deceased. The forensic evidence has not been challenged and we are fully convinced that the said forensic evidence corroborates ocular testimony of the witnesses. We are, therefore, fully convinced that the appellant was the person who committed assault with the deadly weapon i.e. a heavy knife on his brother deceased Vasanta. 9. As regards the absence of motive, we find that the same loses importance particularly when we have the account of the eyewitnesses as discussed above corroborated by the other evidence. 10. The submission made by the learned Counsel for the appellant that the appellant did not commit any murder and the offence would fall under Section 304 Part II of Indian Penal Code is without any merit. In the broad day light the appellant committed murder of his brother by heavy knife, first amputated his wrist and did not stop but then went ahead and assaulted him on his neck causing severe injuries on his neck. The injuries are large and deep incised wounds in the neck and the knife entered up to sternum. We are quite convinced that the appellant had intention as well as knowledge to commit the murder of the deceased Vasanta, his real brother. In that view of the matter, we find no merit in the present appeal. We, thus, make the following order. ORDER Criminal Appeal No.562/2008 is dismissed. Appeal dismissed.