1 27032017 judg. apeal 465.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.465 of 2014
Bhaurao s/o Bajirao Bagade,
Aged 60 years, Occ.-Retired,
R/o.-Kakda, Tah. Karanja, Dist. Wardha. .... Appellant.
-Versus-
The State of Maharashtra,
Through P.S.O., Police Station Karanja (Ghadga),
Dist. Nagpur. .... Respondent.
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Shri R.M. Daga, Advocate for for appellant.
Shri A.S. Fulzele, Addl.PP for respondent.
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Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 27
March, 2017.
J U D G M E N T (Per B.P. Dharmadhikari, J.)
The appellant accused challenges the judgment and order dated 12-08-2014 delivered by Sessions Judge, Wardha in Sessions Trial No.116 of 2012 convicting him for offence punishable under Section 302 of the Indian Penal Code and sentencing to suffer imprisonment for life and fine of Rs.1,000/- in default rigorous imprisonment for three months.
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2 27032017 judg. apeal 465.14.odt
2] We have heard learned Advocate Shri Daga for the appellant
and Additional Public Prosecutor Shri Fulzele for the respondent
State.
3] After hearing the learned Advocates, we find that there could
have been four eye witnesses to the incident. Deceased Rajesh
happened to be son of appellant Bhaurao while complainant (PW-1) Beby is wife of Bhaurao and mother of Rajesh, (PW-9) Laxmi is daughter of this couple and (PW-5) Rajendra is husband of other daughter. As per the story of prosecution, (PW-1) Beby, (PW-9) Laxmi and two daughters of Rajendra were present on terrace where appellant Bhaurao allegedly attacked his son Rajesh with hammer. 4] (Exhibit-47) is the report of Medical Officer on weapon. In that report, length of hammer is recorded as 52 cms. and its weight is 6 Kg.
5] (PW-7) is Dr. Nilesh Tumram, who has conducted post mortem of body of Rajesh. The post mortem report at Exhibit-45 is proved by him. Against column 17 recording surface wound and injuries only observation is contusion over left side of face. It is also recorded that there was evidence of abrasion over maxillary and left mustroid region within the contusion. The injury is shown as possible by use of ::: Uploaded on - 30/03/2017 ::: Downloaded on - 31/03/2017 00:46:45 ::: 3 27032017 judg. apeal 465.14.odt hard and blunt object. Oral evidence adduced by Dr. Nilesh supports this. He has deposed that cause of death is strangulation associated with head injury. He has further remarked in post mortem report that there was possibility of occurrence of head injury first with subsequent strangulation unless otherwise proved. He has accordingly deposed. In paragraph 8, he states that handle of hammer might have been used to compress the neck for strangulation. He accepted that in post mortem report he did not mention this fact. He accepted that strangulation can be by hands. He clarified that it is called throttling. 6] Thus, as per this evidence brought on record by the prosecution, it is strangulation associated with head injury which has caused death. Evidence of doctor does not show that head injury resulted in strangulation. If clearly shows that in absence of strangulation, Rajesh would have been alive.
7] Perusal of records reveals that (PW-1) Beby and (PW-9) Laxmi both speak of only attack by hammer and blows given by appellant Bhaurao on head and chest of deceased Rajesh. According to their evidence, these two witnesses, Rajesh and grand daughters of Beby by name Anu and Tinku were sleeping on roof of the house while appellant Bhaurao was sleeping below in open yard. They also state that seeing attack, when they raised alarm, Bhaurao went down ::: Uploaded on - 30/03/2017 ::: Downloaded on - 31/03/2017 00:46:45 ::: 4 27032017 judg. apeal 465.14.odt by stairs with the hammer threw it and ran away. Both these witnesses, therefore, do not point out any strangulation. They do not state that with the handle of hammer or otherwise, Bhaurao pressed neck of deceased Rajesh.
8] Police found hammer at the spot where it is allegedly thrown by Bhaurao. (Exhibit-63) is the report of Chemical Analyzer on that hammer. In this report item 7 is hammer while items 8, 9 and 10 are full shirt, full pant and banyan of appellant Bhaurao. No blood stains are found on these item/exhibits.
9] According to both these eye witnesses because of blows blood was oozing out from nose and mouth of Rajesh. They do not speak of any injury below left ear. May be blood was flowing even on wound and from wound. C.A. report shows that Exhibit-5 bed sheet used by Rajesh was not having any blood stains. However, Exhibit-6 quilt on which he was sleeping had few blood stains ranging from 0.1 to 2 cms. in diameters on one side. In this situation, if the hammer was used to give multiple blows and then discarded as alleged by these witnesses, definitely blood wounds have been found on it. Not only this if handle of hammer was used for strangulation, blood would have appeared on handle. In other words, the material on record is insufficient to connect the hammer seized by Police from the spot with ::: Uploaded on - 30/03/2017 ::: Downloaded on - 31/03/2017 00:46:45 ::: 5 27032017 judg. apeal 465.14.odt murder.
10] The First Information Report lodged by (PW-1) Beby (Exhibit-19) mentions that at hospital in Karanja, Rajesh was declared brought dead. Dr. Rizwan who examined Rajesh there has been examined as (PW-10). He also deposes accordingly. Report immediately sent by him on 06-05-2012 to Police at about 7.00 hours, supports this position.
11] It is not the case of prosecution that after attack on Rajesh, Rajesh was taken to any other doctor or was given any first aid or other assistance. However, inquest panchanama (Exhibit-9) mentions that on left hand near elbow there was a bandage strip used for administering the saline. (PW-3) Sudhir who was attached to Karanja Police Station as API, in cross examination, accepted that he had found such a strip near left elbow of deceased.
12] This material therefore shows that the prosecution has not made clean breast of the matter. When death was due to strangulation, there is no evidence that appellant Bhaurao in any way strangulated deceased Rajesh. On the contrary, (PW-9) Laxmi, in cross examination states that Rajesh was alive when he was being taken to hospital and he was giving hiccups. Thus, mode and manner in ::: Uploaded on - 30/03/2017 ::: Downloaded on - 31/03/2017 00:46:45 ::: 6 27032017 judg. apeal 465.14.odt which the entire episode took place is not correctly spoken of by (PW-1) or (PW-9). Person responsible for strangulation is not being named by them. In this situation, when the murder weapon alleged to be hammer cannot be associated with murder at all, participation of Bhaurao in alleged attack also becomes doubtful. (PW-9) has stated that her father (appellant) was assaulting Rajesh by holding hammer with both hands.
13] Saline strip on left elbow assumes importance in this backdrop. Obviously (PW-10) Dr. Rizwan did not administer any saline. This discovery of bandage strip therefore derogates from the creditworthiness of prosecution story.
14] According to appellant, son-in-law Rajendra Patil was involved in murder of elder brother of Rajesh by name Vijay. This murder took place 6/7 years before 06-05-2012. Effort was to urge that Rajendra eliminated Rajesh and to save Rajendra, (PW-1) and (PW-9), gave false evidence. According to prosecution, appellant suspected illicit relations between deceased and (PW-1) Beby i.e between mother and son and therefore, he eliminated Rajesh. In the light of material noted supra, we find it not necessary to look into this controversy. Police has not produced grand daughters Anu and Tinku as witnesses to support the event. Spot panchanama ::: Uploaded on - 30/03/2017 ::: Downloaded on - 31/03/2017 00:46:45 ::: 7 27032017 judg. apeal 465.14.odt (Exhibit-21) shows that apart from the cot on which deceased was sleeping, there was other bed rolls also on roof/slab. Why the other witnesses are not examined is not clear.
15] Taking overall view of the matter, we find that prosecution has failed to bring home guilt of appellant Bhaurao beyond reasonable doubt. Hence, we proceed to pass the following order.
ORDER
(i) Criminal Appeal is allowed.
(ii) Judgment dated 12-08-2014 delivered by the Sessions Judge, Wardha in Sessions Trial No.116/2012 is hereby quashed and set aside.
(iii) The appellant is acquitted of the offence punishable under Section 302 of Indian Penal Code.
(iv) He be set free, if his custody is not required in any other matter.
(v) Muddemal property be dealt with as directed by the Trial Court, after appeal period is over.
JUDGE JUDGE
Deshmukh
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