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2014 DIGILAW 1640 (BOM)

Bhiku Radka Karela v. State of Maharashtra

2014-07-25

A.S.GADKARI, V.K.TAHILRAMANI

body2014
JUDGMENT V.K. Tahilramani, J. 1. The appellant, original accused, has preferred this appeal against the judgment and order dated 1st September 2012 passed by the learned Additional Sessions Judge, Palghar in Sessions Case No. 21 of 2010. By the said judgment and order, the learned Additional Sessions Judge convicted the appellant under Sections 302 of IPC and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5000/-, in default, R.I. for one month. 2. The prosecution case briefly stated, is as under: (i) Deceased Jivya was the cousin brother of the appellant. He was working as a forest guard in the Forest Department. The incident occurred little before 3 p.m. on 26th November 2009. On that day, the appellant went to the forest and cut forest wood. Jivya who was working as the forest guard in the forest, asked the appellant why he had cut the forest wood as he had no licence for doing the same. The appellant then committed murder of his cousin brother Jivya by assaulting him with an axe. Thereafter, the appellant went to PW-2 Tanha who was the Police Patil of the village. The appellant told Tanha that he had committed murder of Jivya by giving him blows with an axe on the chest. (ii) Police Patil PW-2 Tanha then informed PW-1 Gaikwad who was a Police Constable. The appellant repeated the same facts to PW-1 Gaikwad which were told by him to PW-2 Tanha. The appellant then led them to the spot. At the spot, they saw the dead body of Jivya lying there. There were injuries on his person. Police Constable Gaikwad took the appellant to the police station. Then Police Constable Gaikwad lodged FIR Exhibit 13. Thereafter, the investigation commenced. After completion of investigation, the charge sheet came to be filed. 3. Charge came to be framed against the appellant under Section 302 and 333 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant was 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 para 1 above, hence, this appeal. 4. We have heard Mrs. Jakhade, the learned Advocate for the appellant and Smt. Bhonsale, the learned APP for the respondent-State. The defence of the appellant was 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 para 1 above, hence, this appeal. 4. We have heard Mrs. Jakhade, the learned Advocate for the appellant and Smt. Bhonsale, the learned APP for the respondent-State. We have carefully considered their arguments, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, for the below mentioned reasons, we are of the opinion that the appellant assaulted Jivya with an axe and caused his death. 5. The prosecution has relied on the evidence of PW-2 Tanha who has stated about extra judicial confession made to him by the appellant. Tanha has stated that on 26.11.2009, he was working as Police Patil. On that day, there was Gram-Panchayat election. Tanha was present near the Polling Booth. There were two Constables at the Polling booth. Tanha has further stated that the appellant came near him and told him that he has brought wood from the forest. Jivya was working as a forest guard. The appellant further told Tanha that he committed murder of Jivya by assaulting him on the chest with an axe. Thus, the evidence of PW-2 Tanha shows that an extra judicial confession was made by the appellant to Tanha. 6. Regarding the admissibility of extra judicial confession, the Supreme Court in Sansar Chand Vs. State of Rajasthan, reported in (2010) 10 SCC 604 , in para 29, held as under:- There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. In the present case, we find the evidence of PW-2 Tanha who was Police Patil of the village inspires the confidence. Hence, we have no hesitation in relying on the same. This extra judicial confession is corroborated by the fact that the appellant led Tanha and Police to the spot where the dead body of Jivya was seen lying dead with injuries on his person. The extra judicial confession is also corroborated by the medical evidence which shows that an injury was found on chest of Jivya. 7. PW-5 Dr. Mane performed postmortem on the dead body of Jivya. The extra judicial confession is also corroborated by the medical evidence which shows that an injury was found on chest of Jivya. 7. PW-5 Dr. Mane performed postmortem on the dead body of Jivya. On external examination, he found the following injuries on the body of Jivya:- 1. Stab injury over left side infra clavicular region (over 1st rib) size 7 cm x 5 cm x 3 cm. 2. CLW over left side lip (lower) size 5 cm x 3 cm x 2 cm. 3. There was fracture on 1st rib on left side. Dr. Mane also noticed that There was rupture on first part of aorta and the cause of death was due to Cardiorespiratory arrest due to hemorrhagic shock due to rupture major aorta due to stab injury. According to Dr. Mane all injuries were ante-mortem. 8. A Full Bench of this Court in the case of Rajeshwar s/o Hiraman Mohurle Vs. State of Maharashtra, reported in 2009 (4) Mh.L.J. 483 , in para 18, observed as under: It will be a far fetched submission that the Police Patil has to be treated as a Police Officer in law for all intent and purposes. The Police Patil cannot file charge-sheet under Section 173 of Cr.P.C. Once this aspect is missing from ambit of the powers vested in the officer, he cannot be stated to be a Police Officer for the purposes of section 25 of the Indian Evidence Act. The Police Patil under the Village Police Act is also not a Police Officer on the deeming fiction of law as there is no provision in the Statute which specifically or even otherwise requires the Police Patil to be treated as a Police Officer for all intent and purpose. In the present case, the appellant has made an extra judicial confession to PW-2 Tanha who was Police Patil of the village. From the decision of this Court stated herein above, it is clear that the confession made to the Police Patil is not hit by Section 25 of the Indian Evidence At and the extra judicial confession can certainly be taken into consideration. 9. From the decision of this Court stated herein above, it is clear that the confession made to the Police Patil is not hit by Section 25 of the Indian Evidence At and the extra judicial confession can certainly be taken into consideration. 9. In the case of Rajeshwar (supra), the full bench of this Court has, in para 20, further observed that: Therefore, we are unable to contribute to the view that Police Patil is a Police Officer in law for all intent and purpose and confession before him would attract the bar contemplated under Section 25 of the Indian Evidence Act, 1872. 10. In addition to the above evidence, the prosecution is also relying on the evidence of PW-3 Vanshya and PW-6 Banibai. Vanshya has stated that he heard the shout of a person, hence, he came out of the house. He saw the appellant standing and deceased Jivya was lying down. The appellant was holding axe in his hand and wood on his shoulder. The appellant then went away. Vanshya saw that Jivya had injury on his hand, mouth and chest. Blood was oozing from the said injuries. Vanshya then called PW-6 Banibai. Thus the evidence of Vanshya shows that when he heard shouts, he saw the appellant standing and deceased was lying dead and at that time the appellant had axe in his hand and the appellant thereafter went away. 11. PW-6 Banibai has stated that she knew the appellant as he is from her village. In the afternoon, she was cutting grass in the field. At that time she saw the appellant had axe in his hand and there was log over his shoulder. The appellant was coming from the side of the field of PW-3 Vanshya. After sometime, Banibai went towards the field of Vanshya. At that time, she saw the dead body of Jivya lying in the field. There were injuries on the face and chest of Jivya. Banibai informed the wife of deceased that her husband was lying in the field. Thus, the evidence of Vanshya and Banibai shows that at the time of incident the appellant was holding an axe in his hand. The evidence of Banibai shows that she saw the appellant coming with an axe in hand and log of wood on his shoulder. Banibai informed the wife of deceased that her husband was lying in the field. Thus, the evidence of Vanshya and Banibai shows that at the time of incident the appellant was holding an axe in his hand. The evidence of Banibai shows that she saw the appellant coming with an axe in hand and log of wood on his shoulder. He was coming from the side of field of Vanshya and when she went to the field of Vanshya, she saw the dead body of Jivya. The evidence of PW-3 Vanshya and PW-6 Banibai shows the presence of the appellant at the spot where the dead body of Jivya was lying in the field. 12. On going through the record, we find there is sufficient evidence to show beyond reasonable doubt that the appellant committed murder of Jivya by assaulting him with an axe. Thus, we find no merit in the appeal. Hence, the Appeal is dismissed. 13. At this stage, we must record our appreciation for Advocate Mrs. Jakhade who is on the High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs. 5000/-. 14. This Order be communicated to the appellant who is undergoing his sentence in jail. Appeal Dismissed.