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2015 DIGILAW 1845 (BOM)

Nagsen v. State of Maharashtra

2015-08-11

A.B.CHAUDHARI, P.N.DESHMUKH

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JUDGMENT : A.B. Chaudhari, J. 1. Being aggrieved by the Judgment and Order dated 27th February, 2013, passed by learned Additional Sessions Judge, Yavatmal, in Sessions Trial No. 14 of 2011, convicting the appellant accused Nagsen Premdas Wagde of the offences punishable under Sections302 and 324 of Indian Penal Code, and sentencing him to undergo Life Imprisonment and payment of fine of Rs. 4,000/-, in default, further Rigorous Imprisonment for four months for the former offence, and Simple Imprisonment for one year and payment of fine of Rs. 500/-, in default, further Simple Imprisonment for two months for the latter offence, the present appeal was filed by him. Facts: Sau. Asmita wife of Sandeep Shende had come to her parents' house at Narsapur for the festivals of Rakhi and Pola in the year 2010. On 12th September, 2010, between 3.30 and 4.00 p.m., when she was at home and her grand-mother Kacharabai @ Kamlabai was grinding "Udid Pod" in the courtyard, the appellant with his accomplices entered the courtyard of her house and started abusing her. When she asked why they were abusing, they started beating her. While Kacharabai was attacked by accused-appellant Nagsen by a sword on her neck, thigh and head, accused Sanjay Wagde gave a blow of axe on her head. Seeing all this, Sau. Asmita rushed to the rescue of her grand-mother, but the appellant attacked her also on her nose and thumb of right hand by the sword, while accused Sanjay struck an axe on her head. She, thus, sustained bleeding injuries and fell unconscious. Kacharabai, however, died on the spot. Both were taken to hospital. Asmita survived. Son of Kacharabai Ramchandra lodged an FIR with Police Station, Kalamb, on the same day and offences under Sections 302 and 307 read with Section 34 of Indian Penal Code were registered. Police arrested the accused and conducted investigation. On completion of investigation, charge-sheet was filed. Trial was held. Trial Court heard the evidence and acquitted all other accused, but convicted the appellant Nagsen as above. Hence this appeal. Arguments: 2. In support of the appeal, learned Adv. Mr. Sirpurkar for the appellant vehemently submitted that the entire prosecution case rests only on the evidence of Sau. Asmita Sandeep Shende [PW 5], and except her, there is no other evidence. Hence this appeal. Arguments: 2. In support of the appeal, learned Adv. Mr. Sirpurkar for the appellant vehemently submitted that the entire prosecution case rests only on the evidence of Sau. Asmita Sandeep Shende [PW 5], and except her, there is no other evidence. According to him, the learned Trial Judge disbelieved the testimony of Asmita [PW 5] in so far as the other accused persons are concerned and acquitted them. The Trial Judge should have, for the same reasoning, acquitted the appellant also. He submitted that the prosecution case is based on a single testimony of Asmita, who was an interested witness and admittedly, there was a dispute with the appellant, inasmuch as she was complaining that the appellant was teasing her before and after her marriage. He submitted that upon reading the cross-examination of Asmita [PW 5], it clearly shows that much time before the incident, there were no instances of any confrontation between them or of any quarrel or as the case may be. In other words, Mr. Sirpurkar submitted that Asmita admitted in her cross-examination that there was no dispute or quarrel in the immediate past before the date of incident, due to which the incident could have taken place. Therefore, according to him, the case of the prosecution was unbelievable and untrustworthy. He then submitted that the prosecution did not prove any motive for the incident and, therefore, the prosecution case was liable to be rejected. In the alternative, Mr. Sirpurkar submitted that the offence of murder under Section 302, Indian Penal Code, was not proved by the prosecution, and, at the most, the lower offence under Section 304 Part II, Indian Penal Code, could have been said to have been committed and the appellant having undergone sufficient sentence, should be released forthwith. 3. Per contra, learned APP supported the impugned Judgment and Order, and submitted that there is voluminous evidence on record, since Asmita [PW 5] is an injured witness and the injuries have been duly proved. After seeing the incident, she fell unconscious due to injuries caused to her and regained consciousness after three-four days and thereafter her statement was recorded in which she clearly stated the role of all accused, including the appellant. Unfortunately, all the accused persons, except the appellant, have been acquitted. After seeing the incident, she fell unconscious due to injuries caused to her and regained consciousness after three-four days and thereafter her statement was recorded in which she clearly stated the role of all accused, including the appellant. Unfortunately, all the accused persons, except the appellant, have been acquitted. In so far as the appellant is concerned, a specific role is attributed to him which is fully corroborated by the medical evidence. The offence is none other than a criminal trespass, murder of Kacharabai and grievous hurt caused to Asmita and hence appeal deserves to be dismissed. Consideration: 4. We have heard learned counsel for the rival parties at length. We have seen the entire evidence as well as record of the Trial Judge. We have gone through the reasons recorded by the learned Trial Judge for recording the order of conviction of the appellant. 5. We find that Asmita [PW 5] is an eye-witness to the incident. Not only that she is also an injured person who was attacked and injured after the attack was made on deceased Kacharabai who fell down and ultimately died on the spot. Therefore, the incident of murder of Kacharabai was seen by Asmita. We have seen the evidence of Asmita and we quote the relevant portions of her evidence from paras 1 and 2 which read thus:- "1..................................................On 12.9.2010 at about 3.30 to 4.00 p.m., I and my grand-mother Kacharabai were present at the house. That time my grand mother was granding Udit pod in the courtyard and I was sitting in the door. That time all the four accused came in the courtyard of my house while giving abuses. My grand mother asked as to why they are giving abuses. There upon all the accused started beating her. Accused Nagsen Wagde struck the sword at her neck, hand and thigh and on her head. Sanjay Wagde struck an Axe on the head of my grand mother. When I gone to rescue my grand mother, Nagsen struck sword on my nose and thumbs of my both hands. Sanjay Wagde came from behind and struck an Axe on my head. Kamlabai also beat me and she was saying to kill us. My grand mother Kacharabai died on spot. I fell down as sword was struck on me and became unconscious. I regained consciousness in the Main Hospital at Nagpur." 2. Sanjay Wagde came from behind and struck an Axe on my head. Kamlabai also beat me and she was saying to kill us. My grand mother Kacharabai died on spot. I fell down as sword was struck on me and became unconscious. I regained consciousness in the Main Hospital at Nagpur." 2. 7 to 8 years prior from today Nagsen used to tease me thus I had told about it to my parents. Thereafter my marriage was settled but still Nagsen used to tease me and thus I told about it to maternal cousin brother Sandeep Shende. Thus, my parents and maternal cousin brother gone to persuade him and that time oral dispute between them had taken place. After marriage whenever I used to go to my parents Nagsen Wagde used to harass me......" From reading of the above evidence, it is clear that it was the appellant Nagsen who attacked and caused death of Kacharabai. Para 2 of the evidence shows the motive and the way in which appellant Nagsen was behaving with Asmita before and after her marriage. We have carefully perused the cross-examination of this witness and we find that there were omissions in her evidence in so far as the role attributed to other accused persons is concerned, and, therefore, they were acquitted by the Trial Judge. However, in so far as the appellant is concerned, the role attributed to him is very specific. There are neither any omissions or contradictions in relation to the appellant and, therefore, we find her evidence is strong, consistent and fully believable. That apart, we have seen the Postmortem Report to find corroboration to injuries described by Asmita in her evidence. We find that Injury Nos. 1, 2, 3, 4 and 5 clearly show that the same must been caused by means of a sword looking to the depth, length and breadth of the injuries. Upon perusal of the injuries, we find that the blows of sword given by the appellant were forceful, so much so that in one blow middle frontal bone was fractured, so also the bone of thigh was fractured. Thus, the appellant came on the spot in the courtyard of Kacharabai with full preparation, i.e., sword with a clear intention to commit her murder. Thus, the appellant came on the spot in the courtyard of Kacharabai with full preparation, i.e., sword with a clear intention to commit her murder. Therefore, there is no reason why he carried sword to the courtyard of Kacharabai, that too in the afternoon, and caused her injuries by means of a sword. The intention is absolutely clear, namely that he wanted to commit murder of Kacharabai, and he did it successfully. We, therefore, find that none of the submissions made by Mr. Sirpurkar, counsel for the appellant, can be accepted. In the result, the appeal must fail and hence we make the following order:- ORDER Criminal Appeal No. 258 of 2013 is dismissed.