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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.485/2015
...
Naresh Devilal Patle,
Aged about 34 years,
R/o Dhanori, Tahsil &
District Gondia. .. APPELLANT
.. Versus ..
The State of Maharashtra,
through Police Station Officer,
Gangazhari,District Gondia. .. RESPONDENT
Mr. R.P. Thote, Advocate (Appointed) for Appellant.
Mr. V.P. Maldhure, Additional Public Prosecutor for Respondent.
....
CORAM : B.R. Gavai & Kum. Indira Jain, JJ.
DATED : March 07, 2017.
ORAL JUDGMENT (per B.R. Gavai, J. )
1. The accused has been convicted for the offence punishable under Section 302 of the Indian Penal Code for committing murder of his wife Yogeshwari, his sister-in-law Puneshwari and his brother-in-law Manoj and sentenced to ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 2 APEAL485-15.odt suffer imprisonment for life and to pay fine of Rs.25,000/-, in default to suffer simple imprisonment for one year for each of the murders. He has also been convicted for the offence punishable under Section 307 of the Indian Penal Code for attempt to commit murder of his father-in-law Ramchandra and sentenced to suffer R.I. for ten years and to pay fine of Rs.10,000/- , in default to suffer simple imprisonment for six months. Being aggrieved by the aforesaid conviction and sentence, the appellant challenges the judgment and order dated 18.03.2015 passed by the learned Additional Sessions Judge, Gondia.
2. The prosecution story as could be gathered from the material placed on record is thus:-
PW2 Ramchandra is a first informant. He had two daughters and one son Manoj. His daughter Yogeshwari was married to accused Naresh in the year 2010. Puneshwari and Manoj were unmarried. Manoj was working as a driver. On 2.8.2012 accused and Yogeshwari had come to the house of PW2 Ramchandra on the occasion of Rakhi festival and staying in the house of PW2 Ramchandra.
On 4.8.2012 his daughter Yogeshwari told PW2 that the accused was harassing her and demanding Rs.50,000/- ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 :::
3 APEAL485-15.odt from her. PW2 told the accused that he was not in a position to arrange for money every time and he should not harass his daughter. Thereafter he and his wife left the house for Chota Gondia for attending the post funeral rituals of his relative. Since it was raining, he asked his son Manoj to drop his wife by four wheeler and accordingly he dropped his wife to Murri Chowk and went for his work. After his wife came at Murri Chowk, they proceeded towards Chota Gondia on a motorcycle.
At about 4.15 p.m. PW2 Ramchandra received a phone of PW5 Pintu Yele from the phone of PW4 Sumit Patle asking him to return to the village immediately. As such he rushed to the village alone by motorcycle. When he came near his house, near the shop of Ratan Baghele the accused was moving the keys of his house by his fingers and he said that "Ye Teri Gharki Chabi Le Our Jake Dekh Le Tere Tino Bacchoka Dher Gira Diya Hamesha Ka Kissa Khatma kar Diya" Accordingly he took the keys, opened the lock and saw the children in the pool of blood in the inner side room of his house. He also noticed the axe, iron rod and an iron pipe in the room having blood stains over it.
PW2, therefore, accosted the accused as to what he has done. The accused picked up the axe and came to assault him. However, in order to save himself, he ran from the ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 4 APEAL485-15.odt backside door of his house. He met Sumit Patle. Accordingly they rushed to the house of Police Patil to narrate the incident. He went to the Police Station and lodged the report. On the basis of the oral report, the investigation was set into motion. The accused was beaten by the villagers after the crime and he was taken into custody by the Police Patil himself. He was arrested by Police and sent for medical treatment. At the conclusion of the investigation, a chargesheet came to be filed in the Court of the learned Judicial Magistrate First Class, Gondia. Since the case was exclusively triable by the learned Sessions Judge, same came to be committed to the learned Sessions Judge, Gondia.
3. The charge was framed against the accused below Exh.4 for the offence punishable under Sections 302 and 307 of the Indian Penal Code. He pleaded not guilty and claimed to be tried. He took the plea of alibi and stated that he was falsely implicated. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentenced the appellant as aforesaid. Being aggrieved thereby, the present appeal.
4. Mr. Thote, the learned counsel for the appellant ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 5 APEAL485-15.odt submits that the prosecution has utterly failed to prove the case beyond reasonable doubt. He submits that the testimony of PW4 Sumit, who claimed to be an eyewitness, cannot be believed. He submits that his conduct was totally unnatural. He submits that after seeing the incident, he has not informed to anyone and as such the conviction on the basis of his testimony is not sustainable.
5. The learned Additional Public Prosecutor on the contrary submits that the testimony of PW4 Sumit- eyewitness is corroborated by all other witnesses like PW2 Ramchandra, PW3 Nihalchand - Police Patil, PW5 Ghanshyam @ Pintu. The learned APP further submits that there is also an extra judicial confession made by the accused to PW7 Shivshankar, who was his friend. He, therefore, submits that the order of conviction warrants no interference.
6. With the assistance of the learned counsel for the appellant and the learned Additional Public Prosecutor, we have scrutinised the entire evidence on the record.
7. PW4 Sumit is a friend of deceased Manoj. Deceased Manoj was working as a driver on a school van whereas PW4 ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:10 ::: 6 APEAL485-15.odt was working as a conductor on the said van. He states in his evidence that on the day of the incident they had picked up the students from their houses and in the evening dropped them to their houses. At around 1.45 hours, he had accompanied Manoj to his house. At that time his parents, as well as sisters were present in the house. Accused Naresh was also present. On that day parents of Manoj were supposed to go to Chota Gondia for attending the Punyatithi programme of some relative. As it was raining, they dropped the mother of Manoj at Murri Chowk in their van. They were followed by father of Manoj on motorcycle. Thereafter they again went to school to collect some boys and dropped them to their respective houses. Manoj dropped PW4 at his house and went to his house at around 3.30 p.m. Within 15 minutes, he received phone of Manoj who informed that the vehicle has been jammed in his courtyard and requested to come there. After some time, he went to the house of Manoj by his motorcycle. He did not see anybody near the vehicle and as such he went towards the house of Manoj by giving call in his name. In the first room, he did not find anybody.
8. He further states that he went upto the door of inner side room and saw accused assaulting Manoj by an axe. At ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:10 ::: 7 APEAL485-15.odt that time he saw Manoj falling on the ground facing sky and the blood was oozing from his body. At that time accused Naresh also called him, however, due to apprehension he ran away from the spot. He went to the house of his friend PW5 Ghanshyam Yele and informed him about the incident. Thereafter he collected his motorcycle and along with Ghanshyam, went towards the chowk. From his mobile, Ghanshyam called the father of Manoj and asked him to return to the village immediately. After some time father of Manoj returned to the village and they followed him to their house. Father of Manoj noticed that the house was locked. That time accused Naresh Patle was present in the courtyard. Father of Manoj demanded keys from accused. At that time accused was revolving the keys in his fingers and said to father of Manoj that "Tere Bachhonka Dher Gira Diya Hamesha Ka Kissa Khatma Kar Diya Ye Le Chabi Our Dekh Le ". Thereafter the father of Manoj opened the lock and entered the house. Naresh also followed him. After some time, they saw father of Manoj coming out from the backside door of the house by running. This witness and Ghanshyam were standing in the courtyard. Father of Manoj told them that Naresh also followed him by holding axe with intention to kill him. He also told them that his children are found dead in the room. Thereafter he ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:10 ::: 8 APEAL485-15.odt accompanied father of Manoj to the house of Police Patil and informed the incident to Police Patil. They all returned to the spot of incident. Thereafter father of Manoj told this witness to bring mother of Manoj. Accordingly he went to Chota Gondia to collect mother of Manoj on his motorcycle. He has also given details about the mobile number of himself as well as the mobile number of Manoj.
9. This witness has been thoroughly cross-examined. In spite of thorough cross-examination, insofar as his testimony with regard to he seeing the accused assaulting the deceased Manoj has remained unshattered.
10. It could further be seen that the witness appears to be a natural witness. If he wanted to depose falsely, he could have given an exaggerated version of he seeing assault on all the three. However, he has deposed only regarding he seeing the accused assaulting the deceased Manoj. His conduct is sought to be attacked. We do not find anything unnatural in his conduct. On the contrary immediately after seeing the incident, he had informed PW5 Ghanshyam who in turn informed PW2 Ramchandra.
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11. The testimony of PW4 Sumit is also corroborated by the testimony of other witnesses. PW5 Ghanshyam narrates about Sumit Patle coming to his house, they going towards the Hanuman Chowk after collecting the motorcycle, thereafter he calling Mamaji (PW2) by the phone of Sumit and asking him to return the village as early as possible, Mamaji returning to the village, proceeding towards the house and the utterances of Naresh to PW2.
12. The testimony of PW3 Nihalchand- Police Patil also corroborates the version of PW4 and PW5. PW3 states about PW2 Ramchandra and PW4 Sumit coming to his house and informing him about the incident. We find that the testimony of PW4 Sumit - eyewitness, is duly corroborated by the testimony of PW2 Ramchandra, PW3 Nihalchand and PW5 Ghanshyam.
13. Apart from that the prosecution has also brought on record the extra judicial confession made by the accused to several witnesses. PW7 Shivshankar is the friend of the accused. He states that he had received a call from mobile no.9623288306. At that time Naresh informed him that he had killed his wife, sister-in-law and brother-in-law. When he asked ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:10 ::: 10 APEAL485-15.odt as to why he had done so, he replied that he was angry. He states that he did not believe on this talk and after saying so, accused gave him one number and told him that it is the number of his father-in-law and he may get it confirmed from him. After some time he called the said number, however, the person on the other side talked something and cut-off the phone. His testimony is sought to be assailed on the ground that his statement is recorded belatedly. However, he has given an explanation in his deposition that though the Police had visited twice to the hotel where he was working, he was not on duty and as such his statement could not be recorded. He has stated that on the third occasion when the Police came, his statement was recorded.
14. Apart from that there is extra judicial confession given by accused to PW2 and PW3. The extra judicial confession given to Police Patil- PW3 is also corroborated by the evidence of PW5 Ghanshyam as well as PW6 Ashish. In the present case we are using the extra judicial confession only as corroborative piece of evidence to fortify the case of the prosecution which in our view is duly proved by the ocular testimony of PW4, who is an eyewitness and whose evidence is duly corroborated by PW2 Ramchandra, PW3 Nihalchand and ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:10 ::: 11 APEAL485-15.odt PW6 Ashish.
15. Insofar as the defence witness is concerned, though he has stated in his evidence that on the day of the incident Naresh had come to Gondia, his cross-examination would reveal that he has deposed only in order to help the accused.
16. The another thing to be noted is that the accused who was beaten by the villagers, was immediately taken into custody by the Police Patil who in turn handed over the custody to the investigating officer. We, therefore, find that the prosecution has proved the case beyond the reasonable doubt and no interference is warranted in the present appeal.
17. In the result, the criminal appeal is dismissed. Fees payable to the learned counsel appointed for the appellant are quantified at Rs.5000/-.
(Kum. Indira Jain, J. ) (B.R. Gavai, J.)
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halwai/p.s.
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