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2013 DIGILAW 1987 (BOM)

Piraji Babu Nirmalkar v. State of Maharashtra

2013-09-25

A.R.JOSHI, V.K.TAHILRAMANI

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JUDGMENT V. K. TAHILRAMANI, J. The appellant-original accused has preferred this appeal against the judgment and order dated 29.04.2010 passed by the Additional Sessions Judge, Gadhinglaj in Sessions Case No.2 of 2009. By the said judgment and order, the learned Sessions Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer rigorous imprisonment for life and fine of Rs. 5000/- in default, RI for three months. 2. The prosecution case briefly stated, is as under: (a) Deceased Vaiju and the appellant were related to one another. They were residing at Village Kudnur, Tal. Chandgad, Dist. Kolhapur. There was a dispute between the deceased and the appellant on account of agricultural land since 2 to 4 years prior to the incident. (b) The incident occurred on 15.01.2008. On that day, PW 1 Sunil who was the nephew of the appellant as well as the deceased along with other family members had gathered in the field located on the bank of river of Chinchane. There was fair of "Goddess Kareva" on that day, hence, they cut a goat in front of Goddess and meat was offered to the Goddess. Rest of the meat was distributed into 25 to 30 parts. This was to be distributed to all the kinsmen. One of the kinsman namely Laxman Nirmalkar was absent as he was in service at Konkan region. Dispute took place on account of his share of meat. The deceased was saying that the share of Laxman was neither to be given to Laxman or any kinsman or even to the person namely Kole who was cultivating the land of Laxman Nirmalkar. When this discussion was going on, the appellant was going back to the village. At that time, the deceased said that unless the dispute in respect of the share of meat of Laxman is not solved, nobody can leave the place. The deceased asked the appellant not to go. At that time, the appellant told the deceased that you come to my house, then I will show you. Thereafter, the appellant went away. All the persons returned back to their houses. The deceased gave his share of meat to his son Vijay and asked him to keep it in the house. PW 1 Sunil who was present at the spot took his share of meat and kept it in his house. Thereafter, the appellant went away. All the persons returned back to their houses. The deceased gave his share of meat to his son Vijay and asked him to keep it in the house. PW 1 Sunil who was present at the spot took his share of meat and kept it in his house. He then came outside. The deceased went towards the house of the appellant. PW 1 Sunil followed the deceased. At that time, the time was about 06.00 p.m. The wife of the appellant was present in front of her house. Deceased Vaiju asked her where is the appellant. Five minutes thereafter, the appellant came from the side of his hut with axe. He gave one blow with axe to Vaiju on the left side of the neck below the ear. Vaiju shouted. When the appellant gave second blow on the head of Vaiju, PW 1 Sunil who witnessed the incident, started shouting for help. The appellant rushed towards PW 1 Sunil, hence, Sunil went to his house. PW-1 Sunil narrated the incident to other relatives. Thereafter, he came to the spot where his uncle Vaiju was lying. He checked the pulse of the deceased and found that it had stopped. Persons from the village gathered at the spot and informed the police. The police came there. Then, PW-1 Sunil lodged FIR (Exh. 13). Thereafter, investigation commenced. The dead body of Vaiju was sent for postmortem. PW 15 Dr. Khot conducted the postmortem on the dead body of Vaiju. He noticed the following injuries on the dead body of Vaiju: 1. Ear-lower and lateral part of Lt. ear lobule missing 3 x 0.5 cm wound fresh, reddish clean cut edges sharp cutting instrument used; 2. One cm below Lt. ear lobule incised wound of 3 x 2 x 1 cm running obliquely downwards over and below mandible upto lateral border of trachea on Lt. side with fracture mandible. Fresh, reddish wound with clean cut edges. Sharp cutting instrument used; 3. 2.5 cm below injury No.2 medially incised wound of 3 x 2 x 1 cm present on Lt side of neck below mandible upto lateral margin of trachea. Fresh, red wound with clean cut edges; 4. 4 cm below injury No.2 laterally incised wound of 2 x 1 x 0.5 cm present extending from line of angle of mandible upto midclavicular lurn. Fresh, red wound with clean cut edges; 4. 4 cm below injury No.2 laterally incised wound of 2 x 1 x 0.5 cm present extending from line of angle of mandible upto midclavicular lurn. Fresh red wound with clean cut edges. 5. Incised wound of 6 x 2 x 1 cm present over Lt. lateral part of neck posteriorly extending from a point 5 cm lateral to mid-line posteriorly upto midcalvicular line anteriory; 6. Scalp shows chopped wound of 8 x 3.5 x 3 cm over occipital area on both sides 2.5 cm below paneto occipital suture with brain substance protruding out. Red fresh wound with clean cut edges. 7. Scalp shows chopped wound of 7 x 3 x 3 cm over occipital area on both sides. 3 cm below injury No.6. Brain substance protruding outside wound red, fresh with clean cut edges sharp cutting instrument used. On internal examination, Dr. Khot found following injuries: 1. Hematoma of 5 x 2 cm seen under scalp over Lt. frontal reddish (fresh & red); 2. Fracture of skull vault seen corresponding to injury Nos. 6 and 7 surface wounds and injuries; 3. Brain shows: a) Incised wound of 7.5 x 3 x 2.5 cm over both occipital area of cerebral Hemisphere corresponding to Injury No.6 in col No. 17 wound is fresh, reddish, clean cut edges, covering are clean cut; b) Incised wound of 6.5 x 2.5 x 2 cm over both occipital areas of cerebral Hemisphere corresponding to Injury No. 7 in col No. 17. Wound is fresh, red, clean cut edges, covering are clean cut; c) Subdural and sub-arachnoid hemorrhage present. (c) The appellant was arrested on 17.01.2008. At the time of arrest, blood stained clothes were found on his person. They came to be seized under panchnama (Exh. 30). During the course of investigation, blood stained axe was recovered at the instance of the appellant in presence of panch witnesses PW 16 Sameer and PW 17 Sajjad. It was recovered under panchnamas (Exh. 43 & Exh.44). After completion of investigation, the charge sheet came to be filed. 3. Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. It was recovered under panchnamas (Exh. 43 & Exh.44). After completion of investigation, the charge sheet came to be filed. 3. Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal. 4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that appellant assaulted Vaiju with axe and caused his death. 5. Though there are two eye witnesses in the present case i.e. PW 1 Sunil and PW 13 Mahadev, the conviction is mainly based only on the evidence of PW 1 Sunil. PW 1 Sunil was the nephew of the deceased as well as the appellant. He has stated that there was dispute between the deceased and the appellant on account of agricultural land since 2 to 4 years prior to the incident. The incident occurred on 15.01.2008. On that day, PW 1 Sunil along with other family members had gathered in the field located on the bank of river of Chinchane. There was fair of "Goddess Kareva" on that day, hence, they cut a goat in front of Goddess and meat was offered to the Goddess. Rest of the meat was distributed into 25 to 30 parts. This was to be distributed to all the kinsmen. One of the kinsman namely Laxman Nirmalkar was absent as he was in service at Konkan region. Dispute took place on account of his share of meat. The deceased was saying that the share of Laxman was neither to be given to Laxman or any kinsman or even to the person namely Kole who was cultivating the land of Laxman Nirmalkar. When this discussion was going on, the appellant was going back to the village. Dispute took place on account of his share of meat. The deceased was saying that the share of Laxman was neither to be given to Laxman or any kinsman or even to the person namely Kole who was cultivating the land of Laxman Nirmalkar. When this discussion was going on, the appellant was going back to the village. At that time, the deceased said that unless the dispute in respect of the share of meat of Laxman is not solved, nobody can leave the place. The deceased asked the appellant not to go. At that time, the appellant told the deceased that you come to my house, then I will show you. Thereafter, the appellant went away. All the persons returned back to their houses. The deceased gave his share of meat to his son Vijay and asked him to keep it in the house. PW 1 Sunil who was present at the spot took his share of meat and kept it in his house. He then came outside. The deceased went towards the house of the appellant. PW 1 Sunil followed the deceased. At that time, the time was about 06.00 p.m. The wife of the appellant was present in front of her house. Deceased Vaiju asked her where is the appellant. Five minutes thereafter, the appellant came from the side of his hut with axe. He gave one blow with axe to Vaiju on the left side of the neck below the year. Vaiju shouted. When the appellant gave second blow on the head of Vaiju, PW 1 Sunil who witnessed the incident, started shouting for help. The appellant rushed towards PW 1 Sunil, hence, Sunil went to his house. PW 1 Sunil narrated the incident to other relatives. Thereafter, he came to the spot where his uncle Vaiju was lying. He checked the pulse of the deceased and found that it had stopped. Persons from the village gathered at the spot and informed the police. The police came there. Then, PW 1 Sunil lodged FIR (Exh. 13). Nothing has emerged in the cross-examination of this witness so as to disbelieve his evidence that the appellant assaulted Vaiju with axe. He checked the pulse of the deceased and found that it had stopped. Persons from the village gathered at the spot and informed the police. The police came there. Then, PW 1 Sunil lodged FIR (Exh. 13). Nothing has emerged in the cross-examination of this witness so as to disbelieve his evidence that the appellant assaulted Vaiju with axe. As far as PW 13 Mahadev is concerned, though he is stated to be an eye witness, we are not inclined to place reliance on his evidence because his statement was recorded after 15 days of the incident and no plausible explanation is forthcoming in relation to the delay in recording his statement. 6. The prosecution has also brought on record the motive for the appellant to commit the crime. PW 1 Sunil has stated that there was a dispute between Vaiju (deceased) and the appellant on account of agricultural land since 2 to 4 years prior to the incident. PW 6 Balaso who was the resident of Village Kudnur has stated that he knew the appellant as well as the deceased. There was a dispute in relation to the agricultural land between the deceased and the appellant. Vaiju had come to him and told him that there was a dispute between him and the appellant on account of agricultural land. Vaiju also told this witness that the appellant used to threaten him that he will kill him. 7. PW 11 Jotiba speaks about immediate motive for the incident. He has stated that on 15.01.2008, he had been to attend the fair of Goddess Kareva in a field situated in Village Chinchane. At about 05.30 p.m., he saw that there was exchange of words between the appellant and the deceased on account of share of meat. 8. The prosecution is also relying on the circumstance of seizure of blood stained axe at the instance of the appellant. PW 16 Sameer and PW 17 Sajjad had deposed about recovery of blood stained axe at the instance of the appellant. The panchnamas are at Exh. 43 and Exh. 44. This axe was found in the house of the appellant, however, PW 17 Sajjad has stated that the axe was not visible without removing the wooden raft behind which the axe was kept. The panchnamas are at Exh. 43 and Exh. 44. This axe was found in the house of the appellant, however, PW 17 Sajjad has stated that the axe was not visible without removing the wooden raft behind which the axe was kept. Nothing has been elicited in cross-examination of both PW 16 Sameer and PW 17 Sajjad so as to cause any doubt about their testimony. 9. The last circumstance on which the prosecution is relying is the seizure of blood stained clothes which were found on the person of the appellant at the time of his arrest. PW 12 Shivaji is the panch witness who has deposed on this aspect. The panchnama is at Exh. 30. PW 8 panch witness Divakar has deposed on the aspect of seizure of clothes of the deceased. The clothes of the appellant and the clothes of the deceased were sent to CA. The CA report Exh. 58 shows that the clothes of the deceased i.e. shirt, banian and full pant were stained with blood of "A" group. The CA report further shows that the shirt and pant of the appellant and the axe were also seen stained with blood of "A" group. This shows that the blood of the group of the deceased was found on the axe and clothes of the appellant. The appellant has not furnished any plausible explanation for finding of blood stains of "A" group on his clothes and the axe. We find that circumstance of finding of blood stains of "A" group on the clothes of the appellant and the axe is highly incriminating circumstance. 10. Mr. Katkade, learned Advocate for the appellant submitted that the eye witness PW 1 Sunil has deposed only about two blows given by the appellant to Vaiju, however, the PM Notes show that seven injuries were found on the dead body of Vaiju. He submitted that this circumstance raises grave doubt about the veracity of the evidence of PW 1 Sunil. As far as this aspect is concerned, PW-1 Sunil has stated that the appellant gave two blows with axe to Vaiju, thereafter Sunil shouted for help whereupon the appellant rushed towards him. Hence, PW-1 Sunil went to his house. Thus, it is clear that after the appellant gave two blows to Vaiju, PW-1 Sunil went away from the spot. As far as this aspect is concerned, PW-1 Sunil has stated that the appellant gave two blows with axe to Vaiju, thereafter Sunil shouted for help whereupon the appellant rushed towards him. Hence, PW-1 Sunil went to his house. Thus, it is clear that after the appellant gave two blows to Vaiju, PW-1 Sunil went away from the spot. Thus, there was no occasion for PW-1 Sunil to witness the other blows given by the appellant to Vaiju, hence, we find no merit in this submission. 11. On going through the record, we find that there is sufficient evidence which connects the appellant with the crime. Thus, we find no merit in the appeal. The appeal is dismissed. 12. Office to communicate this order to the concerned prison Authorities and to the appellant who is in jail. 13. At this stage, we must record our appreciation for Advocate Mr. S.Y. Katkade who is on the panel of Advocates of High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.2500. Appeal dismissed.