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2016 DIGILAW 5 (BOM)

Dadasaheb Appa Tamkhade v. State of Maharashtra

2016-01-04

SADHANA S.JADHAV, V.K.TAHILRAMANI

body2016
JUDGMENT V.K. Tahilramani, Actg. C.J. 1. This appeal is preferred by the appellants-original accused Nos. 1 to 3 against the judgment and order dated 17.11.2008 passed by the learned Sessions Judge, Sangli in Sessions Case No. 106 of 2005. By the said judgment and order, the learned Session Judge convicted and sentenced the appellants as under:- Convicted u/s. Sentenced to For committing murder of Dilip Bapu Tamkhade 302 r/w 34 IPC Life imprisonment. For committing murder of Hanmant Bapu Tamkhade 302 r/w 34 IPC Life Imprisonment For attempting to commit murder of Anusaya Bapu Tamkhade 307 r/w 34 IPC R.I. for five years Compensation for the above offences To pay compensation of Rs.1,00,000/- each, in default R.I. for three years each. The learned Sessions Judge directed that all the substantive sentences of imprisonment shall run concurrently. As during the course of appeal, appellant No. 1 Dadasaheb and appellant No. 3 Kundlik have expired, their appeal stands abated. This appeal hence now stands confined as regards challenge to conviction and sentence of appellant No. 2 Vithoba only. 2. The prosecution case briefly stated, is as under: (a) The appellants and the deceased were cousin brothers. The appellants and the deceased were residing in Bhikawadi Village, Taluka Khanapur, District Sangli. There are two deceased in the present case i.e Dilip Tamkhade and Hanmant Tamkhade. Dilip and Hanmant were the sons of PW 1 Anusaya who is an injured witness in the present case. Dilip and Hanmant along with their mother Anusaya were charged with committing murder of the brother of the appellants. Due to this, there were strained relations between the family of the deceased and the appellants. Dilip, Hanmant and Anusaya were acquitted in the case relating to murder of the brother of the appellants. Due to this, the relations between the family of the deceased and the appellants became even more strained. There was also dispute between the family of the deceased and the appellants in relation to claiming share in a piece of agricultural land. (b) The incident occurred on 17.2.2005. Deceased Dilip and deceased Hanmant were residing along with their mother PW 1 Anusaya, PW 6 Sunita who is the wife of Dilip, Rekha who is the wife of Hanmant and two daughters of Hanmant and one son and one daughter of Sunita and Dilip. (b) The incident occurred on 17.2.2005. Deceased Dilip and deceased Hanmant were residing along with their mother PW 1 Anusaya, PW 6 Sunita who is the wife of Dilip, Rekha who is the wife of Hanmant and two daughters of Hanmant and one son and one daughter of Sunita and Dilip. The children of Hanmant and Dilip were minor at the time of the incident. One water tank was situated at a distance of about 50 feet from the house of the deceased. There was open space between the water tank and the house of the deceased. At about 11 a.m., Anusaya, Hanmant and Sunita (PW 6) were present in the house. Dilip had just left the house to make payment to the labour in the field. At that time, PW 1 Anusaya and PW 6 Sunita heard shouts, "hana"-"hana" ("beat", "beat"). On hearing the shouts, Anusaya and Sunita rushed to the spot. They saw all the three appellants i.e Dada, Kundlik and Vithu were assaulting Dilip. Dada (accused No. 1) was armed with knife, Vithu (accused No. 2) was armed with an axe and Kundlik (accused No. 3) was also armed with an axe. They all assaulted Dilip. On seeing Anusaya, the appellants stopped assaulting Dilip. Then Vithu (accused No. 2) and Dada (accused No. 1) came towards Anusaya. Appellant No. 2 Vithu assaulted Anusaya with an axe due to which one of her fingers was chopped off. Appellant No. 1 Dada assaulted Anusaya with a knife. Meanwhile Hanmant reached the spot. Appellant No. 1 Dada and appellant No. 2 Vithu caught hold of Hanmant and started assaulting him. Appellant No. 1 Dada assaulted Hanmant with knife and appellant No. 2 Vithu assaulted Hanmant with an axe. Due to the assault, Dilip expired on the spot. Hanmant was brought to the house where he expired within a short time. PW 6 Sunita then lodged F.I.R. Thereafter, investigation commenced. (c) The dead bodies of Dilip and Hanmant were sent for postmortem. PW 9 Dr. Bhise conducted the postmortem on the dead bodies of Dilip and Hanmant. During postmortem, it was found that Dilip had sustained 10 injuries. The cause of death was shock due to hemorrhage due to multiple injuries on the body. During postmortem of Hanmant, nine incised wounds were found on the body. PW 9 Dr. Bhise conducted the postmortem on the dead bodies of Dilip and Hanmant. During postmortem, it was found that Dilip had sustained 10 injuries. The cause of death was shock due to hemorrhage due to multiple injuries on the body. During postmortem of Hanmant, nine incised wounds were found on the body. The cause of death was due to shock due to hemorrhage due to multiple injuries on the body. PW 1 Anusaya was also sent for medical examination. PW 9 Dr. Bhise examined Anusaya and found four injuries on her person. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellants under Sections 302 r/w 34 and 307r/w 34 of IPC. The appellants-accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants as stated in paragraph 1 above, hence, this appeal. 4. We have heard the learned Advocate for appellant No. 2 and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that there is no merit in the appeal. 5. There are two eye witnesses in the present case i.e PW 1 Anusaya and PW 6 Sunita. Anusaya was the mother of deceased Hanmant and deceased Dilip. She is an injured witness. PW 6 Sunita is the wife of deceased Dilip. She is the complainant in the present case. At the time of the incident, Anusaya along with her sons deceased Dilip and deceased Hanmant, PW 6 Sunita-wife of Dilip, Rekha-wife of Hanmant along with two children of Hanmant and two children of Dilip were residing jointly in Village Bhikawadi. A water tank was situated at a distance of about 50 feet from the house of PW 1 Anusaya. There was open space in between the house of Hanmant and the water tank. 6. A water tank was situated at a distance of about 50 feet from the house of PW 1 Anusaya. There was open space in between the house of Hanmant and the water tank. 6. PW 1 Anusaya has stated that there was dispute between her family and the appellants on account of agricultural land. There were also strained relations between them because Shiva who was the brother of the appellants was murdered 10-12 years prior to the incident and Anusaya and her sons Hanmant and Dilip were the accused in that murder case, however, Anusaya and her sons were acquitted in the said case. On this count also, there were strained relations between the family of Anusaya and the appellants. Anusaya has stated that on the day of the incident, she returned home at about 11.00 a.m. At that time, PW 6 Sunita and Hanmant were present in the house. Dilip had just left to go to the field to make payment to the labours. At that time, Anusaya heard shouts, "hana"-"hana" ("beat", "beat"). On hearing the shouts, Anusaya and Sunita rushed to the spot. They saw all the three appellants i.e Dada, Kundlik and Vithu were assaulting Dilip. Dada (accused No. 1) was armed with knife, Vithu (accused No. 2) was armed with an axe and Kundlik (accused No. 3) was also armed with an axe. They all assaulted Dilip. On seeing Anusaya, the appellants stopped assaulting Dilip. Then Vithu (accused No. 2) and Dada (accused No. 1) came towards Anusaya. Appellant No. 2 Vithu assaulted Anusaya with an axe due to which one of her fingers was chopped off. Appellant No. 1 Dada assaulted Anusaya with a knife. Meanwhile Hanmant reached the spot. Appellant No. 1 Dada and appellant No. 2 Vithu caught hold of Hanmant and started assaulting him. Appellant No. 1 Dada assaulted Hanmant with knife and appellant No. 2 Vithu assaulted Hanmant with an axe. Due to the assault, Dilip expired on the spot. Hanmant was brought to the house where he expired within a short time. PW 6 Sunita then lodged F.I.R. 7. The evidence of PW 6 Sunita is on similar lines as that of PW 1 Anusaya. No material omissions or contradictions have been elicited in cross-examination of Anusaya or Sunita so as to disbelieve their testimony. 8. The evidence of the eye witnesses is corroborated by the medical evidence. PW 6 Sunita then lodged F.I.R. 7. The evidence of PW 6 Sunita is on similar lines as that of PW 1 Anusaya. No material omissions or contradictions have been elicited in cross-examination of Anusaya or Sunita so as to disbelieve their testimony. 8. The evidence of the eye witnesses is corroborated by the medical evidence. PW 9 Dr. Bhise conducted the postmortem on the dead bodies of Dilip and Hanmant. In addition, Dr. Bhise also examined PW 1 Anusaya. As far as Dilip is concerned, following external injuries were noticed:- (1) Clean cut incised wound on left parietal region extending to the front region, oblique 6 inch x 2.5 cm, elliptical wound bone deep showing fracture of the bone; (2) Contusion on the forehead transverse 7 cm x 3 cm brownish black; (3) Contusion of left infra orbital region 4 cm x 4 cm brownish black in colour; (4) Contusion on the right cheek 6 cm x 2 cm transverse brownish black in colour; (5) CLW on the nape of neck on left side transverse 6 cm x 2 cm x 1 cm; (6) A wound extending 3 cm proximal to the angle of mandible low down medially at the center up to Adam's apple, muscle deep, exposing the Adam's apple which is torn on the right side, 11 cm x 6 cm x 1 cm; (8) CLW/incised wound on the right index finger on the dorsal aspect 2 cm x 1 cm x 2.5 cm; (9) CLW/clean cut on the right para spinal region at the level of iliac crest transverse 5 cm x 1 cm x 0.5 cm; (10) CLW on both buttock 1 cm x 1 cm x 1.5 cm. Internal injuries were hemorrhage on the parietal region and frontal region, fracture of parietal bone which was 6 inches long, laceration of brain covering epidural hemorrhage in the brain. According to Dr. Bhise, the cause of death of Dilip was due to shock due to hemorrhage due to multiple injuries on the body. Internal injuries were hemorrhage on the parietal region and frontal region, fracture of parietal bone which was 6 inches long, laceration of brain covering epidural hemorrhage in the brain. According to Dr. Bhise, the cause of death of Dilip was due to shock due to hemorrhage due to multiple injuries on the body. As far as Hanmant is concerned, on external examination, incised wound on the vault of skull 8 cm x 1 cm x 1 cm, incised wound on the occipital region 10 cm x 1 cm, incised wound 15 cm long from left ear to the angle of mandible upto chin, incised wounds on the neck, left side of the chest, epigastrium, right iliac crest and on the back were seen. According to Dr. Bhise, the cause of death of Hanmant was shock due to hemorrhage due to multiple injuries on the body. Dr. Bhise opined that the injuries sustained by Dilip and Hanmant were possible by hard and sharp object like knife and axe. On examining Anusaya, Dr. Bhise found following injuries on her person:- (1) CLW with complete fracture left ring finger with dislocation at proximal inter pharyngeal joint with bleeding plus; (2) CLW on the left ring finger 0.5 x 0.25 cm; (3) Incised wound on the left side of neck, oblique elliptical in shape 10 x 1 x 0.25 cm skin deep; (4) Stab wound on left hypochondriac region oblique 5 x 3 x 5 cm. Anusaya was referred to Civil Hospital, Sangli for further treatment. According to Dr. Bhise, Anusaya had sustained grievous injuries caused by hard and sharp object. Thus, medical evidence also corroborates the prosecution case. 9. In our opinion, the evidence of the two eye witnesses i.e PW 1 Anusaya and PW 6 Sunita is sufficient to sustain the conviction, hence, we are not adverting to the rest of the evidence. Looking to the evidence on record, we are of the opinion that the prosecution has proved its case against appellant No. 2 beyond reasonable doubt, hence, we find no merit in the appeal. The appeal is dismissed.