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2014 DIGILAW 1662 (BOM)

Vilas Nagesh Jadhav v. State of Maharashtra

2014-07-30

ANUJA PRABHUDESSAI, P.V.HARDAS

body2014
Judgment P.V. Bardas, J. The appellant/Original Accused No. 1 - Vilas, who stands convicted for an offence punishable under Sections 302, 307 and 324 of the IPC and sentenced to imprisonment for life and to pay a fine of Rs. 20,000/-, in default of which to undergo RI for one year, RI for seven years and to pay a fine of Rs. 10,000/-, in default of' which to undergo RI for six months and RI for one year and to pay a fine of Rs. 2000/- in default of which to undergo RI for two months, with a direction that the appellant would be entitled for set off, by the II Additional Sessions Judge, Satara, by judgment dated 13/10/1992, in Sessions Case No. 126 of 1989, by this appeal questions the correctness of his conviction and sentence. During the pendency of this appeal, Original Accused No. 2 - Nagesh expired and consequently the appeal filed by him was dismissed as abated. 2. Facts in brief as are necessary for the decision of this appeal may be stated thus:- PW 12 - Police Head Constable Bhiku Gaikwad, who, on 11/5/1989 was attached to the Vaduj Police Station, recorded the report of PW 4 - Ganpat at Exh. 30. An entry regarding the said report was taken in the station diary at Sr. No. 27. The SDPO was contacted about the incident and, therefore, PSI Dhumal from Pusegaon Police was sent to the Vadju Police Station for investigation. Staff from the Vaduj Police Station was deputed to the scene of the incident and on the basis of the report of PW 4 - Ganpat at Exh. 30, an offence vide Crime No. 55 of 1989 under Sections 147, 148, 149, 326 and 302 of the IPC was registered. Since PW 4 - Ganpat had sustained injuries, Ganpat was referred to the medical hospital for examination. PW 13 - PSI Vasant Dhumal, who, on 11/5/1989, was attached to the Pusegaon Police Station was informed from the office of the Superintendent of Police about commission of an offence within the jurisdiction of the Vaduj Police Station and was also informed that since the PSI of Vaduj Police Station was on leave, PW 13 - PSI Dhumal should investigate the said crime. At about 12.30 in the morning, PW 13 - PSI Dhumal left for Vaduj Police Station. At about 12.30 in the morning, PW 13 - PSI Dhumal left for Vaduj Police Station. At that time, appellant had come to the Pusegaon Police Station and had made inculpatory statement. The appellant was, therefore, taken into custody and thereafter PW 13 - PSI Dhumal went to the Vaduj Police Station. PW 13 - PSI Dhumal, along with the police staff went to village Naikachiwadi i.e. the scene of the incident and reached there at about 1.30 to 1.45 a.m. They noticed a street light at a distance of 10 to 15 ft. of the dead body of deceased Eknath. Police personnel was kept there for guarding scene of the incident and PW 13 - PSI Dhumal returned back to the Vaduj Police Station. He thereafter went to the scene of the incident again and in the presence of the panchas drew the inquest panchanama of the dead body of deceased Eknath at Exh. 14. The dead body of deceased Eknath was referred for postmortem. It also transpired that one Godabai, Keshav Jadhav and Mohanabai had also been injured in the incident and, therefore, they were referred to the medical hospital for examination. A scene of the incident panchanama was then drawn in the presence of panchas at Exh. 22. From the scene of the incident, samples of blood stained mud and ordinary mud were seized. Statements of about 22 witnesses were recorded. The blood stained clothes of injured PW 6 - Nanda, Keshav and Mohanabai were seized. The clothes of deceased were also seized. The appellant was then arrested along with the other accused and the clothes of the appellant which were found stained with blood were also seized. On 14/5/1989, during custodial interrogation, the appellant expressed his willingness to point out the place where a knife had been concealed by him. Accordingly, a memorandum of the appellant was recorded at Exh. 24. The appellant led the police and the panchas to his house and produced a knife which was seized under panchanama at Exh. 25. The knife is at Article 17. Statements of the witnesses were recorded and further investigation was then entrusted to PW 14 - PSI Shivaji Deshmukh. PW 14 - PSI Shivaji Deshmukh, who was attached to the Vaduj Police Station, was entrusted with the investigation on 19/5/1989. On 28/5/1989, he arrested accused Balasaheb and accused Nagesh. 25. The knife is at Article 17. Statements of the witnesses were recorded and further investigation was then entrusted to PW 14 - PSI Shivaji Deshmukh. PW 14 - PSI Shivaji Deshmukh, who was attached to the Vaduj Police Station, was entrusted with the investigation on 19/5/1989. On 28/5/1989, he arrested accused Balasaheb and accused Nagesh. During custodial interrogation, accused Balasaheb expressed his willingness to point out the place where a stick had been concealed. A memorandum was accordingly recorded at Exh. 27. Accused Balasaheb led the police and the panchas and produced a stick which was seized under panchanama at Exh. 28. On 31/5/1989, the seized articles were referred to the Chemical Analyzer under requisition at Exh. 57. On 6/7/1989 the clothes of injured and the blood samples were referred to the Chemical Analyzer under requisition at Exh. 58. A letter was issued to the Tahsildar for drawing the sketch of the scene of the incident. Further investigation was thereafter entrusted to PW 15 - PSI Satish Palasdevkar. PW 15 - PSI Palasdevkar, who was attached to the Vaduj Police Station, was entrusted with the investigation on 1/8/1989. After completing the investigation, he submitted a charge-sheet against the accused on 17/8/1989. PW 10 - Dr. Sanjog Kadam, who was medical officer attached to the Civil Hospital, Satara examined PW4 - Ganpat on 12/5/1989 and noticed the following external injuries:- (i) Incised wound over the abdomen, left lumber region 2" interior and 2" lateral to umbilicus oblique in direction omentum protruded through the wound. The wound is deep to peritoneum. (ii) Abrasion right infirmary region 6 cm in length, transfer radish black. (iii) Abrasion left forearm, 6 cm in length, reddish semicircular. (iv) Abrasion on the posterior aspect of left elbow 2 cm. x 2 cm. X-ray of the abdomen of the said patient was taken, but no abnormality was seen. PW 10-Dr. Kadam opined that the age of the injury was within 24 hours and the nature of the injury was grievous. He has further opined that injuries 1 to 3 could be caused by sharp object, while injury no. 4 could be caused by hard and blunt object. PW 4 - Ganpant had been admitted in the hospital from 12/5/1989 to 20/5/1989. The injury certificate of PW 4 - Ganpat is at Exh. 46. He has further opined that injuries 1 to 3 could be caused by sharp object, while injury no. 4 could be caused by hard and blunt object. PW 4 - Ganpant had been admitted in the hospital from 12/5/1989 to 20/5/1989. The injury certificate of PW 4 - Ganpat is at Exh. 46. Postmortem on the dead body of deceased Ekanath Kesu Jadhav was performed by PW 11 - Dr. Sri rang Doiphode, who noticed the following external injury: Stab wound over left lateral border of sternum in 5th intercoaster space 1" x ½", all horizontal 5" deep. Age of the injury was within 24 hours. On internal examination, he noticed that entire thoracic cavity was full of blood and a stab wound over the left lateral border of sternum 5th intercor space I" x ½", horizontal 5" deep was noticed. There was a stab wound over the left border of the heart into the left ventricle. He, therefore, opined that cause of death was shock due to hemorrhage due to injury to heart. The postmortem report is at Exh. 48. 3. On committal of the case to Court of Sessions, trial court, vide Exh. 4 framed charge against six accused for offence punishable under Sections 147, 148, 302 read with Section 149, 307 read with Section 149 and 324 read with Section 149 of the IPC. The accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined 15 witnesses, while the accused in their defence examined accused no. 3 – Balasaheb. The trial court upon appreciation of the evidence convicted and sentenced the appellant and Original Accused No. 2, while acquitting the other accused. The appellant being thus aggrieved by his conviction and sentence has tiled the present appeal. 4. Prosecution has examined PW 4 - Ganpat, an injured eye witness and the first informant, who deposes that he was employed as a labourer at Bombay, while his parents, along with his brother's family and the family of Ganpat, were residing at village Naikachiwadi. Ganpat further deposes that he is the eldest amongst the brothers, while deceased Eknath was younger to him. He further deposes that his aunt Mohanabai was also residing at village Naikachiwadi. He then deposes that accused nos. 1 and 3 are cousins of PW 4 - Ganpat, while accused no. 2 is his uncle. Ganpat further deposes that he is the eldest amongst the brothers, while deceased Eknath was younger to him. He further deposes that his aunt Mohanabai was also residing at village Naikachiwadi. He then deposes that accused nos. 1 and 3 are cousins of PW 4 - Ganpat, while accused no. 2 is his uncle. He then deposes that under the consolidation scheme, he had received notice in respect of the agricultural property which was admeasuring about 60 acres. PW 4 Ganpat and his other relatives were not willing to accept the Gut formation and, therefore, had filed an appeal at Poona challenging the scheme. He deposes that after some time notices were again received by them and they had again filed an appeal. Criminal cases had been filed between Ganpat and his family members and the accused and some chapter cases had also been filed. The appellant had threatened PW 4 - Ganpat and his family members. The dispute between appellant and PW 4 - Ganpat and his family members was going on for the last two years. According to Ganpat, on the day of the incident he was sitting in front of his house taking his dinner which was served by PW 5-Kalpana. Deceased Eknath was sitting on the cot, while Nanda, wife of PW 4 - Ganpat was feeding her child. Father of Ganpat and Mohanabai were also sitting near the door of the house. The appellant came to their house and abused PW 4 - Ganpat by calling him outside the house. PW 4 - Ganpat had finished his dinner and, therefore, went out of the house for cleaning his hands and while he was cleaning his hands, the appellant rushed towards Ganpat with a knife in his hand. Ganpat tried to evade the blow but the appellant gave the blow of the knife on the leg. Thereafter the appellant again stabbed Ganpat on his stomach with the knife. The clothes of PW 4 - Ganapt were stained with blood. Seeing the plight of Ganpat, deceased Eknath came near Ganpat in order to hold him. The appellant dealt a blow of knife on the chest on the left side of Eknath. Eknath on sustaining the injury, fell on the ground in front of the house of Anandrao. The clothes of PW 4 - Ganapt were stained with blood. Seeing the plight of Ganpat, deceased Eknath came near Ganpat in order to hold him. The appellant dealt a blow of knife on the chest on the left side of Eknath. Eknath on sustaining the injury, fell on the ground in front of the house of Anandrao. The appellant thereafter stabbed the mother of PW 4 - Ganpat on her right thigh and when PW 6 - Nanda tried to intervene, she sustained injury on her shoulder. Thereafter accused Nagesh dealt a blow of stick on the head of father of Ganpat and Mohanabai. Accused Balasaheb then kicked Eknath. At that time accused Shanta, Parubai and Sharada began pulling the hair of mother of PW 4 - Ganpat and began to kick mother of Ganpat and PW 6 - Nanda. Appellant thereafter went towards his house. Deceased Eknath succumbed to his injuries and Ganpat with the assistance of the villagers went to police station Vaduj and lodged his report at Exh. 30. PW 4 - Ganpat claims that he had witnessed the entire incident in the illumination of the street light which was near the house of the accused. 5. In cross-examination he has admitted that a criminal case had been filed by the Vaduj Police Station on the report of Nagesh that Ganpat and others had damaged the pipe line of accused Nagesh. Omission has been elicited that he had not stated in his report that the appellant had threatened PW 4 - Ganpat and his family members. He has further admitted that when he had come to clean his hands after his dinner, he was standing at the threshold and at that time the appellant was in the courtyard of the house holding a knife in his right hand. He has admitted that his brother deceased Eknath had held the appellant. Ganpat has volunteered that immediately thereafter the appellant stabbed Eknath with a knife. He has denied the suggestion that he along with his other family members had abused and threatened accused Nagesh and his sons because they were annoyed by the action taken by accused Nagesh against Ganpat and his family members. He has denied the suggestion that in the scuffle PW 4 - Ganpat as well as Eknath had sustained the injuries. He has denied the suggestion that he along with his other family members had abused and threatened accused Nagesh and his sons because they were annoyed by the action taken by accused Nagesh against Ganpat and his family members. He has denied the suggestion that in the scuffle PW 4 - Ganpat as well as Eknath had sustained the injuries. Certain minor omissions have been elicited that he had not stated in his report that he was cleaning his hands by standing at the threshold and that the appellant had suddenly come with a knife. The recitals in the First Information Report clearly indicate that PW 4 - Ganpat had averred that after completing his dinner he had come out of his house and then was stabbed by the appellant and the appellant had thereafter stabbed others. Thus, the omissions which have been elicited in the cross-examination of this witness are on extremely minor aspect of the prosecution and pertain to the minor details of the incident. The FIR is not meant to an encyclopedic version of the entire incident. Minor omissions do not affect the veracity of the prosecution witnesses especially the informant. PW 4 - Ganpat had sustained an injury which was bleeding and had lodged his report and was thereafter referred for medical examination. In such circumstances, the report of PW 4 - Ganpat is bound to be a brief report which normally would be shorn of all unnecessary details. No vital aspect of the prosecution case is lacking in the FIR. In our opinion, therefore, implicit reliance can certainly be placed on the testimony of PW 4 - Ganpat. 6. Prosecution has examined PW 5 - Kalpana, wife of deceased Eknath, who along with her husband was also sitting outside the house on the day of the incident. She also deposes on lines similar to that of PW4 Ganpat regarding the incident. In cross-examination, she has admitted that she was serving dinner to PW 4 - Ganpat and when the appellant had come in front of the house, PW4-Ganpat had finished his dinner. She has also admitted in the cross-examination that the appellant had come in front of the house armed with a knife and was holding the knife in his hand. The appellant had stabbed PW 4 - Ganpat when PW 4 - Ganpat went out of the house. She has also admitted in the cross-examination that the appellant had come in front of the house armed with a knife and was holding the knife in his hand. The appellant had stabbed PW 4 - Ganpat when PW 4 - Ganpat went out of the house. The appellant had then stabbed deceased Eknath, when deceased Eknath had gone to intervene. She has admitted that the incident occurred in front of the house of Ananda. She has denied the suggestion that on hearing the noise of the quarrel, she had come out of the house. She has further admitted as correct that her husband Eknath, PW 4 - Ganpat, his parents and other persons were sitting in front of the house of Ananda before the incident. She has denied the suggestion that her husband and PW 4 - Ganpat and Shankar had assaulted the Appellant and that PW 4 - Ganpat was armed with a knife and during the scuffle, PW 4 Ganpat and deceased Eknath had sustained injuries. She has also admitted that her husband Eknath, after sustaining the injuries, fell at the same place. The other omissions pertain to the acquitted accused and, therefore, we refrain from adverting to that part of the evidence. 7. Prosecution has examined PW 6 - Nanda, who claims that on the day of the incident she was sitting near the door of the house and was feeding her child. She has also deposed about the incident on the same lines as the other eye witnesses. In the cross-examination, she has denied the suggestion that Kalpana, wife of deceased Eknath had filed a suit for partition. PW 6 - Nanda has admitted in the cross-examination that PW 4 - Ganpat was cleaning his hands when the appellant stabbed him with a knife. She has also admitted that PW 4 - Ganpat was carrying a pot of water in his hand. She has also denied the suggestion that the prosecution witnesses had assaulted the appellant and in the scuffle PW4-Ganpat and others had sustained injuries. Certain other omissions have been elicited pertaining to the accused who have been acquitted. An omission is also elicited that she had not stated that the appellant had stabbed mother of PW4-Ganpat on her thigh. She has also admitted that she had not been medically examined in respect of the injury sustained by her. Certain other omissions have been elicited pertaining to the accused who have been acquitted. An omission is also elicited that she had not stated that the appellant had stabbed mother of PW4-Ganpat on her thigh. She has also admitted that she had not been medically examined in respect of the injury sustained by her. This witness has volunteered that she could not go for medical examination as her child was young. She has admitted that she could not even go to the hospital when PW 4 - Ganpat was admitted in the hospital because her child was young. 8. Prosecution has also examined PW7-Godabai, mother of PW 4 Ganpat, who also deposes about the incident and about she sustaining injury at the hands of the other acquitted accused. She claims that accused Nagesh had dealt a blow of stick on the head of her husband. In cross-examination, she has admitted that PW 5 - Kalpana was sometime residing at her parents house and sometimes residing at her house. She has denied the suggestion that Kalpana had filed a civil suit for partition in the court at Vaduj. She has also admitted that PW4-Ganpat was cleaning his hands by standing in the door. She has admitted that the appellant had come to the house and had stabbed Ganpat while Ganpat was cleaning his hands. She has also denied the suggestion that while the appellant was going to his house, the prosecution witnesses had accosted him and had assaulted him and in the scuffle, Ganpat, Eknath and others had sustained the injuries. Omissions have been proved regarding the overt act attributed to the accused who have been acquitted. 9. Prosecution has also examined PW8-Ananda, who deposes that he had heard the cries of Ganpat and, therefore, had come out of his house and at that time had noticed the appellant stabbing Ganpat. Ananda also deposes that he had seen the appellant stabbing deceased Eknath. Eknath then had come in front of his house and had fallen on the ground. Ananda also deposes about assault by the other accused on the other injured witnesses. He has denied the suggestion that all the members of the family of PW4-Ganapt were sitting on a cot in front of his house. Eknath then had come in front of his house and had fallen on the ground. Ananda also deposes about assault by the other accused on the other injured witnesses. He has denied the suggestion that all the members of the family of PW4-Ganapt were sitting on a cot in front of his house. He has denied the suggestion that PW 4 - Ganpat and others accosted the appellant and had assaulted him and in the scuffle, the injured had sustained the injuries. An omission has been elicited that he had not stated in his previous statement that deceased Eknath, after sustaining the injuries had come in front of his house and had fallen on the ground. 10. Mr. Rahul Kate, learned counsel for the appellant has urged before us that there is variance in the testimony of the eye witnesses in respect of the incident and, therefore, according to the learned counsel for the appellant, no reliance can be placed on the said testimony. The learned APP has supported the findings arrived at by the trial court. In a prosecution case, where the prosecution examines more than one eye witnesses, there is bound to be a slight variance in the actual sequence of the incident. The powers of recapitulation of no two persons can be said to be identical and, therefore, slight variation in the narration of the incident is bound to occur. It would be extremely harsh to expect that the testimonies of the eye witnesses should be exactly identical or similar to each other. Minor variations do not affect the core of the testimony of the witnesses and, at times, may furnish re-assurance to the court regarding the truthfulness of the narration. It is only in the event of a major variation in the testimony, in a sense that on vital aspects of the prosecution case, if there are divergent testimonies of the witnesses, the court may, in such circumstances, decline to place any reliance on the said testimony. However, in the present case, we find that the variance in the testimony of the witnesses is on an extremely marginal aspect of the prosecution case and does not affect the core of the testimony of the witnesses. We have observed that the testimony of the witnesses is reliable and implicit reliance can be placed on their testimony. 11. However, in the present case, we find that the variance in the testimony of the witnesses is on an extremely marginal aspect of the prosecution case and does not affect the core of the testimony of the witnesses. We have observed that the testimony of the witnesses is reliable and implicit reliance can be placed on their testimony. 11. The learned counsel for the appellant has then urged before us that all the eye witnesses have deposed about the appellant inflicting the knife by holding the knife horizontal and this part appears to be extremely doubtful. 12. The incident had occurred all of a sudden and, in fact, had occurred when the witnesses had no inkling of the impending danger. While PW 4 - Ganpat was cleaning his hands after his dinner, the appellant suddenly came in the courtyard and stabbed PW 4 Ganpat. The witnesses had seen the incident in the dazed state of mind and it is not expected that the witnesses would recall with minute details, the manner in which the knife was held and the manner in which the injuries were inflicted. In such circumstances, therefore, variance in the testimony of the witnesses in respect of the manner of infliction of the injuries would not materially affect the prosecution case. The entire cross-examination indicates that there is no challenge to the presence of the appellant near the house of PW4-Ganpat at the time of the incident. The defence of the appellant appears to be that he was accosted and assaulted and in the scuffle, deceased and Ganpat had sustained the injuries. The said defence has also not been probabalised by the appellant. In the cross-examination, admissions have been elicited about presence of the appellant in the courtyard and about the appellant stabbing Ganpat, while Ganpat was cleaning his hands. In such circumstances, therefore, according to us, the core of the testimony of the witnesses is not shattered on account of variance in respect of the manner of infliction of the injuries. 13. The learned counsel for the appellant has then urged before us that deceased Eknath had fallen in front of the house of Ananda and, therefore, that lends assurance to the defence of the appellant that he was accosted and thereafter was assaulted by the prosecution witnesses. 13. The learned counsel for the appellant has then urged before us that deceased Eknath had fallen in front of the house of Ananda and, therefore, that lends assurance to the defence of the appellant that he was accosted and thereafter was assaulted by the prosecution witnesses. The sketch of the scene of the incident indicates that the house of Ananda is diagonally opposite to the house of PW 4 Ganpat. Ananda has clearly deposed that deceased Eknath, on sustaining the injuries, came in front of his house and then fell on the ground. The scene of the incident panchanama also indicates that Eknath had fallen in front of the house of Ananda. The medical officer has, no doubt, admitted that after sustaining the injuries to the heart, a person may collapse on the ground immediately. However, it cannot be said, with any mathematical accuracy, that on sustaining injury, a person is bound to collapse on the ground. There are many variables and it is quite possible for a person to walk a distance of about 30 to 40 ft. and thereafter collapse. In any event, according to us, the fact that Eknath had collapsed in front of the house of Ananda would not in any manner probabalise the defence of the appellant in the light of the overwhelming evidence of the eye witnesses. Additionally, we find that a knife was discovered at the behest of the appellant and the said knife was found stained with blood of "B" as well as "O" group. The blood group of PW 4 - Ganpat, vide Exh. 42, has been determined to be "B" group, while the blood group of deceased Eknath has also been determined to be "B" group. 14. The learned counsel for the appellant has urged before us that the appellant had no intention of committing the murder of deceased Eknath and, therefore, the appellant would be liable to be convicted for an offence punishable under Section 304(II) of the IPC. The learned APP has opposed the said submission and has prayed for dismissal of the appeal. 15. There was no provocation for the appellant and the appellant armed with a knife, which was carried by him in his hand, had gone to the house of PW 4 - Ganpat. The learned APP has opposed the said submission and has prayed for dismissal of the appeal. 15. There was no provocation for the appellant and the appellant armed with a knife, which was carried by him in his hand, had gone to the house of PW 4 - Ganpat. Without the slightest provocation, the appellant had stabbed PW 4 - Ganpat repeatedly and when deceased Eknath had intervened in the quarrel, the appellant had stabbed Eknath on his chest. The blow which was given to deceased Eknath was a forceful blow as it had penetrated the thoracic cavity and had damaged the ventricle of the heart. The injury which was inflicted by the appellant to deceased Eknath was an intentional injury which was sufficient in ordinary course of nature to cause death. Deceased Eknath had succumbed to his injuries at the scene of the incident itself, after he had walked a distance of about 30 to 40 ft. Thus, the intention of the appellant is certainly discernable and it cannot be contended on behalf of the appellant that the appellant had no intention to commit murder of deceased Eknath. The appellant, in our opinion, therefore, has been rightly convicted and sentenced by the trial court. 16. Thus, we do not find any merit in the present appeal and the appeal is, therefore, dismissed, confirming the conviction and sentence of the appellant. We direct that the substantive sentences shall run concurrently and the appellant would be entitled for set off as admissible under Section 428 of the Code of Criminal Procedure. The bail bonds of appellant stand cancelled. Eight weeks' time is granted to the appellant to surrender to the jail authorities. Appeal dismissed.