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2014 DIGILAW 2343 (BOM)

Bhagwan v. State of Maharashtra

2014-11-25

B.R.GAVAI, V.M.DESHPANDE

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JUDGMENT : B.R. Gavai, J. 1. Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Bhandara dated 9.7.2003 in Sessions Trial No. 52/97, thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 200/- and in default to suffer R.I. for one month and further convicting the appellant for the offence punishable under Section 324 of the Indian Penal Code and sentencing him to suffer S.I. for six months and to pay a fine of Rs. 100/- and in default to suffer S.I. for 15 days, the appellant has approached this Court. The prosecution case, in brief, as could be gathered from the material placed on record is as under:-- That the accused Bhagwan is resident of Sant Kolba Swami Ward, Bhandara. The deceased Maroti, his son Arjun PW. 1 and other family members are residents of Sant Kolba Swami Ward, Bhandara. The brother of the accused is mentally challenged. It is the prosecution case that one Shrinath Nagre, who is the son of injured Arjun Nagre and the grandson of deceased Maroti used to tease the brother of the accused by throwing the pieces of bricks on him. It is the prosecution case that the accused had assaulted Shrinath due to this. In order to question the accused as to why Shrinath was assaulted, the injured deceased and other family members had gone to the house of the accused. At that place, the quarrel took place. The scuffle ensued between the wife of the accused and the wife of the injured. When the deceased had gone to rescue his daughter-in-law, the accused came with the knife and assaulted deceased Maroti. PW. 1 Arjun had gone to rescue his father but the accused also assaulted him by knife. Deceased Maroti succumbed to the injuries. The first informant in the injured condition had left for police station. However, he came across the police vehicle on the way and he was taken to General Hospital. In the meantime, one unknown person had informed the Police Station, Bhandara about the murder in Sant Kolba Swami Ward. A statement of PW. 1 Arjun was recorded on the basis of which an offence under Sections 302 & 307 of the Indian Penal Code came to be registered. In the meantime, one unknown person had informed the Police Station, Bhandara about the murder in Sant Kolba Swami Ward. A statement of PW. 1 Arjun was recorded on the basis of which an offence under Sections 302 & 307 of the Indian Penal Code came to be registered. Investigation was set in motion. 2. At the conclusion of the investigation, a chargesheet came to be filed against the accused in the Court of J.M.F.C., Bhandara. Since the case was exclusively triable by the learned Sessions Court, the same came to be committed to the Court of learned Sessions Judge, Bhandara. The learned trial Judge framed the charges against the accused for the offence punishable under Sections 302 & 324 of the Indian Penal Code. The accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence as aforesaid. Being aggrieved thereby, the present appeal. 3. Shri Junaid Ahmed, the learned Counsel appearing on behalf of the appellant, submits that the prosecution has failed to prove the case beyond reasonable doubt. It is submitted that all the witnesses are interested witnesses and as such, the accused has been falsely implicated. It is thus submitted that the appeal deserves to be allowed and the accused acquitted of the offences charged with. 4. As against this, the learned A.P.P. appearing on behalf of the respondent submits merely because the witnesses are interested, cannot be a ground for discarding their testimony. He submits that the evidence of all the eye-witnesses is consistent and, therefore, no interference is warranted. 5. PW. 1 Arjun is injured witness. He has stated in his evidence that on the day of the incident after taking meals he was taking rest. His parents and children were also at home. He states that his father had gone after sometime and, therefore, his son Shrinath had gone to call him. He further states that when his son was on his way to the house, accused without any reason assaulted him. Son of one Ramesh Shinde informed PW. 1 Arjun about the same. He started leaving his house and at that time his son and father returned back. On enquiry, his son told him that he was assaulted by the accused without any reason. Son of one Ramesh Shinde informed PW. 1 Arjun about the same. He started leaving his house and at that time his son and father returned back. On enquiry, his son told him that he was assaulted by the accused without any reason. He went to the house of the accused to question him why he assaulted his son. At the house of the accused his wife was present. When she was asked about the reason for assaulting his son by P W. 1 Arjun, she informed that the son of PW. 1 Arjun had thrown small pieces of bricks at her husband, i.e. accused. At that time, both the sons of the PW. 1 Arjun, daughter and wife were with him. He states that they started returning back home. On the way to house, the accused abruptly came there and assaulted him by sword, firstly on his left arm and then on the left side of his chest. His father was was at a short distance from him. The accused assaulted his father by the same weapon. His father died on the spot and then many persons gathered there. Though this witness has been thoroughly cross-examined, nothing damaging has come on record. 6. PW. 2 Shewantabai is the wife of PW. 1 Arjun. She states in her evidence that when all the family members had gone to the house of the accused, the wife of the accused told them that the accused was not at home, though in fact he was at home. She had abused and scuffle ensued between PW. 2 Shewantabai and the wife of the accused. When the scuffle was going on, the accused came out of his house with knife and first he assaulted her husband and then he assaulted her father-in-law. She saw her father-in-law falling down. 7. PW. 3 Shrinath is son of PW. 1 Arjun and PW. 2 Shewantabai. He states in his evidence that after the accused assaulted him, he came back home weeping. As he was weeping, his father asked him as to why he was weeping. He told him that one person assaulted him and beat him. His father asked him to accompany him in search of that person. He states that he and his father left the house. His grandfather followed them and his mother was following the grandfather. As he was weeping, his father asked him as to why he was weeping. He told him that one person assaulted him and beat him. His father asked him to accompany him in search of that person. He states that he and his father left the house. His grandfather followed them and his mother was following the grandfather. He states that at the house of the accused his wife came out and asked about the reason. He further states that the scuffle took place between his mother and the wife of the accused. At that time, accused came out of the house with knife. The accused started assaulting the grandfather. His father had rushed towards the accused and accused then turned towards his father and assaulted him. His grandfather died on the spot. 8. No doubt that all these witnesses are interested witnesses. However, merely because the witnesses are interested and related to the deceased, cannot be a ground for discarding their testimony. The only rider is that the evidence of such witnesses has to be scrutinized with a greater caution. If the evidence is found to be trustworthy, cogent and reliable, conviction can be awarded on the basis of the same. 9. The perusal of the evidence of all the three witnesses would reveal that the role of assault by knife by the present appellant is consistently given by them. The evidence of PW. 5 Dr. Dattatraya Trivedi and the postmortem report would show that the injuries caused to the deceased and the PW. 1 Arjun are possible by the weapon used in the crime. The First Information Report lodged at the instance of PW. 1 Arjun also corroborates the version of the eye-witnesses. It is further to be noted that the blood group 'A' which is the blood group of the deceased and PW. 1 Arjun is found on the clothes of the accused. It could thus be seen that the circumstantial evidence also corroborates the prosecution version. In that view of the matter, we find that the prosecution has proved beyond reasonable doubt that the accused has assaulted the deceased and PW. 1 Arjun with knife which has resulted into death of the deceased and injuries on the person of PW. 1 Arjun, the first informant. 10. In that view of the matter, we find that the prosecution has proved beyond reasonable doubt that the accused has assaulted the deceased and PW. 1 Arjun with knife which has resulted into death of the deceased and injuries on the person of PW. 1 Arjun, the first informant. 10. That leaves us to consider as to whether the conviction under Section 302 of the Indian Penal Code is required to be maintained or altered to some other offence. From the evidence of all the three eyewitnesses, it is clear that it is the first informant and all his family members including the deceased, who had gone to the house of the accused. Not only that, but the evidence of PW. 2 Shewantabai would show that she has clearly admitted in her evidence that her husband had carried an axe with him when all of them went to the house of the accused to question why he had assaulted their son. It could thus be seen that it is the family of the first informant and the deceased who had gone to the house of the accused armed with deadly weapons. It is also the consistent evidence of these witnesses that a scuffle took place between PW. 2 Shewantabai and the wife of the accused. It is also the consistent evidence that after the scuffle took place the accused came there and assaulted the deceased and the first informant. 11. In that view of the matter, we find that the prosecution has failed to prove that the accused had intention to cause the death of the deceased. In the scuffle which took place between the two parties, the deceased and the injured have received injuries resulting in the death of the deceased. In that view of the matter, we find that the conviction under Section 302 of the Indian Penal Code would not be maintainable and the conviction would rather be under Part II of Section 304 of the Indian Penal Code. 12. In so far as the conviction under Section 324 of the Indian Penal Code is concerned, in our considered view, it warrants no interference. In the result, the Criminal Appeal is partly allowed. The conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code is altered to under Part-II of Section 304 of the Indian Penal Code. In the result, the Criminal Appeal is partly allowed. The conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code is altered to under Part-II of Section 304 of the Indian Penal Code. The sentence is reduced to R.I. for six years from life imprisonment. Rest of the order is maintained. Needless to mention that the appellant would be entitled to set off for the period he has already undergone.