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2015 DIGILAW 2181 (BOM)

Baba Bapurao Mungale v. State of Maharashtra

2015-09-16

V.M.DESHPANDE

body2015
JUDGMENT: 01. By the present appeal, the appellant is questioning the legality and correctness of the Judgment and Order of conviction dated 19th December, 2011, passed by learned Additional Sessions Judge, Wardha, in Sessions Case No. 30 of 2011, by which the appellant is convicted of offence punishable under Section 304 Part II, Indian Penal Code, and was directed to suffer Rigorous Imprisonment for seven years and to pay a fine of Rs. 5,000/-, in default, further Rigorous Imprisonment for six months The facts, which are just for the appreciation of the prosecution case, can be narrated hereunder:- 02. Wasudeo Admane [PW 1] lodged an oral report with Police Station, Wadner, on 12th November, 2010. His Oral Report is at Exh.16. According to the said report, the house of the appellant is situated near highway and thereafter, beyond the house of the appellant, the agricultural field of the first informant and his family is situated. The first informant and his other family members, including deceased Kisana, were required to pass from the house of the appellant. According to First Information Report, appellant used to raise suspicion about the family members of the first informant. On 12th November, 2010, first informant’s father, Namdeorao, and brother, Maroti, were standing near the house of Appellant – Baba. That time, he used choicest abusive words against them and, therefore, both of them came to house and the same was disclosed to the first informant. Therefore, first informant along with Maroti Admane [PW 4], Kisana Admane [deceased], Yashwant Borkar [PW 2] and Sunil Khandalkar came to the house of appellant for giving a word of advice to him. That time, appellant was inside his house. The aforesaid persons, as per the prosecution, questioned as to why the appellant abuses the family members of the first informant. That time, from inside his house, the appellant started using abusive words in loud voice. Thereafter he came out of his house and then all of a sudden gave a knife blow on the person of Kisana [deceased]. 03. On 12th November, 2010, Rajkamal Waghmare was attached to Police Station, Wadner. He received a letter [Exh.49] from Rural Hospital. He immediately rushed to the said hospital. When he reached there, Kisana was in the casualty ward, however, in a dead condition. He made enquiry with Wasudeo Admane who gave the report in the Police Station [Exh.60]. 03. On 12th November, 2010, Rajkamal Waghmare was attached to Police Station, Wadner. He received a letter [Exh.49] from Rural Hospital. He immediately rushed to the said hospital. When he reached there, Kisana was in the casualty ward, however, in a dead condition. He made enquiry with Wasudeo Admane who gave the report in the Police Station [Exh.60]. The offence punishable under Section 302, Indian Penal Code, was registered vide Crime No. 79 of 2010. Printed FIR is at Exh.17. Rajkamal Waghmare [PW 5] thereafter visited the spot of incident. In presence of Panchas, Spot Panchanama [Exh.18] was drawn. In the meanwhile, inquest was also done over the dead body vide Inquest Panchanama [Exh.20]. The dead body was sent for autopsy. The Autopsy Surgeon conducted post-mortem. The Postmortem Notes are at Exh.37. According to Post-mortem Report, the cause of death was “Terminal CRA due to haemorrhagic shock due to femoral artery damage.” Clothes of the deceased were seized under Seizure Memo [Exh.25]. Under Exh.27, blood samples of the appellant were taken. Exh.40 is the opinion of the doctor about the weapon in response to the query raised by the Investigating Officer. After completion of usual investigations, the Investigating Officer was of the view that sufficient material is collected for sending the appellant to the trial and hence he filed charge-sheet in the Court of Law. 04. Since the offence was exclusively triable by the Court of Sessions, learned Magistrate passed a committal order. 05. Learned Additional Sessions Judge under Exh.7 in Sessions Case No. 30 of 2011 framed the charge against the appellant for the offence punishable under Section 302 of Indian Penal Code. The appellant abjured his guilt and claimed for trial. 06. In order to bring home guilt of the appellant, the prosecuting agency examined five witnesses and also relied upon various documents. Most of the documents during trial were admitted by the appellant. After a full-fledged trial, the learned Judge of the Court below was of the view that instead of the charge under Section 302, Indian Penal Code, the appellant is liable for his conviction of the offence punishable under Section 304 Part II and accordingly, he was convicted. Though the appellant is acquitted of the offence punishable under Section 302, Indian Penal Code, no further appeal was carried by the State questioning his acquittal. 07. I heard Mr. Mahesh Rai with Ms. Though the appellant is acquitted of the offence punishable under Section 302, Indian Penal Code, no further appeal was carried by the State questioning his acquittal. 07. I heard Mr. Mahesh Rai with Ms. S.B. Khobragade, learned counsel for the appellant in extenso. Both these counsel appearing for the appellant strenuously urged before this Court that the evidence of the prosecution in the present case is too short requiring conviction under Section 304 Part II, as inflicted by the court below. They submitted that, in fact, the eye-witnesses in this case are the real assailants. Another breath of their submission is that eye-witnesses are suppressing the genesis and, therefore, benefit of doubt should be extended in favour of the appellant. 08. Per contra, Mrs. Deshmukh, learned Addl. Public Prosecutor, supported the judgment of the Trial Court. She submitted that already a lenient view is taken by the court below. She submitted that the evidence of the eye-witnesses clearly establishes that the appellant assaulted the deceased by means of a dangerous weapon and, therefore, knowledge can be attributed to the appellant that his act may result into death. 09. Immediate lodging of FIR rules out the possibility of false implication. The registration of the crime immediately rules out embellishment in the prosecution case. The occurrence is dated 12th November, 2010 at 1900 hours, whereas the First Information Report was lodged on the very same day at 2015 hours vide General Diary Reference No. 35/10. From the printed FIR [Exh.17], it is clear that the Police Station is at a distance of five kilometers away from village Daroda whereat the incident took place. In that view of the matter, it is crystal clear that the First Informant has not lost any time to report the matter immediately to the law enforcing agency. 10. The evidence of Wasudeo Admane [PW 1], the first informant, is in consonance with the First Information Report lodged by him. His evidence would reveal that he is an eye-witness. That he along with Kisana, the deceased, and other two prosecution witnesses reached the house of appellant for giving a word of advice, cannot be faulted, since it was reported to the first informant by his father that the appellant has used very filthy and abusive language. His evidence would reveal that he is an eye-witness. That he along with Kisana, the deceased, and other two prosecution witnesses reached the house of appellant for giving a word of advice, cannot be faulted, since it was reported to the first informant by his father that the appellant has used very filthy and abusive language. Even when these prosecution witnesses along with deceased reached the house of the appellant, the appellant was continuing using filthy and abusive language. The version of Wasudeo [PW 1] receives due support from Yashwant Borkar [PW 2]. This prosecution witness is an independent person having no animosity against the present appellant. Yashwant Borkar [PW 2] corroborates PW 1, the first informant, that all of a sudden, the appellant stepped out of his house with a big weapon like “Suri” in his hand and without wasting any time, he gave fateful blow on the person of Kisana, the deceased. 11. Maroti Admane is the Prosecution Witness No.4. His evidence is also on the same lines as that of first informant and Yashwant Borkar [PW 2]. 12. What is important to note, in so far as these eye-witnesses are concerned, is that their evidence has remained unshaken during their cross-examination. Learned counsel for the appellant were unable to point out any omission, contradiction or slightest improvement in their testimony. They have fully supported the prosecution. Though faintly it is tried to be submitted on behalf of the appellant that these persons were having a grudge against the appellant, except such a bald submission, nothing could be pointed out to substantiate the said claim. Further, Yashwant Borkar [PW 2], as observed above, is an independent person. The appellant was unable to point out anything to discredit the evidence of these three witnesses. 13. Another evidence that is pressed into service by the learned APP against the appellant is his Memorandum Statement [Exh.43] and consequent recovery of the weapon and the clothes. I have my own doubt for placing reliance on that piece of evidence. Exh.43 is a statement of the appellant recorded during the period when he was in police custody. The incident is dated 12th November, 2010 and the Memorandum Statement in presence of Panchas is recorded on 15th November, 2010, thus, after a period of three days. I have my own doubt for placing reliance on that piece of evidence. Exh.43 is a statement of the appellant recorded during the period when he was in police custody. The incident is dated 12th November, 2010 and the Memorandum Statement in presence of Panchas is recorded on 15th November, 2010, thus, after a period of three days. According to the said statement, he agreed to show the clothes which he had kept on a rope in the courtyard. The appellant was arrested on 13th November, 2010. The clothes were having blood stains. It looks very unnatural that any person will keep blood-stained clothes at the open space and those would remain there for a period of three days. In so far as the recovery at the behest of the appellant in respect of weapon is concerned, it is clear that the weapon was not recovered from any secluded place or a place on which the appellant was having exclusive domain. It was recovered from beneath the straw kept alongside the house. Therefore, in my view, the Court cannot attach much importance to the evidence in the prosecution case in respect of such recovery. 14. Merely because evidence of the prosecution in respect of recovery is discarded, that will not render the entire prosecution case as false one, nor would it be prudent to throw the prosecution case in the dustbin. The prosecution case is duly proved by the consistent evidence of the three eye-witnesses. Their evidence inspires confidence. Their evidence is free from exaggeration, improvements or contradictions. Therefore, I am of the view that the court below has not committed any mistake while appreciating the evidence of the eyewitnesses. Further, the court below has already shown a lenient view by imposing a punishment of only seven years. Therefore, submission of the learned counsel Mr. Rai that the quantum of the punishment should be reduced cannot be accepted. 15. The net result of the aforesaid discussion leads me to pass the following order:- ORDER Criminal Appeal No. 495 of 2013 is dismissed.