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2017 DIGILAW 1832 (BOM)

Bhagwan Sakharam Bhangare v. State of Maharashtra

2017-09-06

SHALINI PHANSALKAR JOSHI, V.K.TAHILRAMANI

body2017
JUDGMENT : V.K. TAHILRAMANI, J. 1. This appeal is preferred by the appellant-original accused against the judgment and order dated 27.4.2012 passed by the learned Additional Sessions Judge-5, Nashik in Sessions Case No. 129 of 2011. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer life imprisonment and fine of Rs. 3000/-, in default R.I. for two months. 2. The prosecution case briefly stated, is as under: (a) Deceased Damu Chaudhari was the nephew of PW 1 Simibai. The appellant was son-in-law of Simibai. There was a dispute between deceased Damu and the appellant in relation to property which was a house. The said house belonged to Damu, however, the appellant was asking Damu to give the appellant the house property. (b) The incident occurred on 1.2.2011 at about 2.30 p.m. At that time, the appellant inflicted blow with spade on the head of Damu. This incident was witnessed by PW 1 Simibai who rushed to the spot. Meanwhile, Damu fell on the ground due to the injuries. He died on the spot. Thereafter, Simibai went to the Police Station and lodged the FIR Exh. 19. Thereafter, investigation commenced. After completion of investigation, the charge sheet came to be filed. 3. Charge came to be framed against the appellant-original accused under Sections 302 and 504 of IPC. The appellant-accused pleaded not guilty to the said charge and claimed to be tried. His 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 appellant as stated in paragraph 1 above, hence, this appeal. 4. We have heard the learned Advocate for the appellant and the learned APP. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel 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 the appellant assaulted Damu with a spade on the head and caused his death. 5. The conviction is mainly based on the evidence of PW 1 Simibai who is an eye witness to the incident. Deceased Damu was the nephew of Simibai. Damu was residing behind the house of Simibai. 5. The conviction is mainly based on the evidence of PW 1 Simibai who is an eye witness to the incident. Deceased Damu was the nephew of Simibai. Damu was residing behind the house of Simibai. Simibai has stated that there was a dispute between Damu and her son-in-law Bhagwan i.e the appellant in relation to property which was a house. The house belonged to Damu, however, the appellant was asking Damu to give the appellant the house property. Simibai has stated that she saw the appellant inflicting blow with spade on the head of Damu. The incident was visible from her house. On seeing the incident, she immediately rushed to the spot. She cried loudly to save her nephew Damu. Damu fell on the ground due to the injuries sustained by him due to the blow with spade. Simibai went to the police station and lodged the FIR. Nothing has been elicited in cross-examination of PW 1 Simibai to cause us to disbelieve her evidence. 6. That Damu died a homicidal death is brought out through the evidence of PW 7 Dr. Patil who conducted the postmortem on the dead body of Damu. She has stated that she found fracture of skull in the parietal region ad-measuring 8.5 cms into 1.5 cms. In the opinion of Dr. Patil, the cause of death was death due to hemorrhagic shock due to interacranial and external hemorrhage. 7. Advocate Mrs. Farhana Shah tried to contend that the cause of death was not due to the assault by the appellant but the death was caused on account of falling on a pointed stone and sustaining injury. In support of this contention, she placed reliance on the cross-examination of PW 7 Dr. Patil where Dr. Patil has stated that it is true to say that if a person falls on a pointed stone, the injury mentioned and as sustained by the deceased is possible. However, it is pertinent to note that Dr. Patil has thereafter stated that if a person sustains head injury, he wakes up and again falls due to giddiness, then the person can sustain hemorrhagic shock only if on the same point of injury, very hard impact is caused. It is extremely difficult to imagine that a person sustains head injury, thereafter falls down and again sustains injury on the same point where he has sustained the earlier injury. It is extremely difficult to imagine that a person sustains head injury, thereafter falls down and again sustains injury on the same point where he has sustained the earlier injury. In view of the categorical evidence of PW 1 Simibai who states that she has witnessed the incident of the appellant assaulting Damu with spade on the head, we cannot give much importance to the admission given by Dr. Patil specially in view of further clarification given by Dr. Patil that if a person sustains head injury, he wakes up and again falls due to giddiness, then the person can sustain hemorrhagic shock only if on the same point of injury, very hard impact is caused. 8. In addition, the prosecution has placed reliance on the evidence of PW 8 Mr. Wankar. He has stated that on 9.2.2011, the appellant gave a disclosure statement that he is ready to produce the clothes worn by him at the time of the incident. This disclosure statement which was recorded is at Exh. 38. Thereafter, Mr. Wankar has stated that they went to the house of the appellant as pointed out by the appellant. The appellant gave them clothes which came to be seized. These clothes were sent to C.A. As per C.A. Report Exh. 45, the pant and shirt of the appellant were stained with human blood. Further the evidence of PW 2 Mr. Bhaye shows that the spade was seized from the spot. The spade was stained with blood. The said spade came to be seized and was sent for C.A. As per C.A. report Exh. 45, the spade was stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 wherein it has been observed as under: “In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507 ) we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the ‘origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant.” 9. Similar view has been taken by the Supreme Court in the cases of R. Shaji v. State of Kerala, (2013) 14 SCC 266 Molai v. State of Madhya Pradesh., (1999) 9 SCC 581 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh., (1991) 3 SCC 627 : AIR 1991 SC 1853 It is pertinent to note that the appellant has not given any explanation for the presence of blood on his clothes. 10. Looking to the evidence on record specially that of PW 1 Simibai, we are of the opinion that the prosecution has proved beyond reasonable doubt that the appellant caused the death of Damu by assaulting him with a spade on the head. Thus, we find no merit in the appeal. The appeal is dismissed.