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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.240/2016
Raghunath @ Raghu Zanakram Dhurve,
Age - 30 years, Occu. Nil,
R/o Behind Govt. Hospital,
Malkapur, Tq. Warud, Dist. Amravati
at present, detained in Central Prison,
Amravati (Convict No.C-4777). ..... APPELLANT
...V E R S U S...
The State of Maharashtra,
through P.S.O. Police Station,
Shendurjana Ghat, Tah.Warud,
Dist. Amravati. ... RESPONDENT
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Shri R. R. Gour, Advocate (Appointed) for the appellant.
Shri V. A. Thakare, A.P.P. for the respondent.
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CORAM:-
PRASANNA B. VARALE &
ARUN D. UPADHYE, JJ.
DATED :
31/10/2017.
ORAL JUDGMENT : (PER PRASANNA B. VARALE, J.)
1. Heard Shri Gour, learned counsel (Appointed) for the appellant and Shri V. A. Thakare, learned A.P.P. for the State.
2. By the present appeal, the appellant (original accused No.1 in Sessions Trial No.211/2012) challenging the Judgment and order passed by the Additional Sessions Judge-1, Amravati dated 2 nd September, 2015, thereby convicting the original accused No.1 i.e. the appellant Raghunath @ Raghu Zanakram Dhurve for the offence punishable under Section 302 of the Indian Penal Code sentencing him ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 ::: 2 J-APEAL-240-16.odt to undergo life imprisonment along with fine of Rs.5,000/-, in default, to undergo simple imprisonment for one year and convicting the accused No.2 Jagdish @ Jaggu Zanakram Dhurve for the offence punishable under Section 323 of the Indian Penal Code and sentencing him to undergo simple imprisonment for one year.
3. The case of the prosecution unfolds through the report lodged at the instance of Shankar Belsare. It was informed to Shankar Belsare on 22/06/2012 through one Ajay Takarkhede and Jagdish Belsare was subjected to axe blows by Raghunath @ Raghu Zanakram Dhurve and his brother Jagdish @ Zanakram Dhurve have dispute of theft of tractor. The said incident took place at 9.30 p.m. On receiving the information, Shankar Belsare immediately rushed to the spot on the motor-cycle with Ajay Takarkhede and on reaching the spot, he found that his son Jagdish Belsare was lying in a pool of blood and injury at his neck. In the mean time, the police also reached on the spot and shifted the dead body. On receiving the report, Investigating Agency was set in motion. The usual formality of recording the statements of witnesses, drawing panchnama, such as Inquest Panchnama, Spot Panchnama were completed. The Investigating Agency collected the material namely; apparels and the weapon used in the commission of offence. The material was also referred to for Chemical Analyzer. The Agency then received the report from Laboratory. On concluding the investigation, charge sheet was filed. The case being exclusively triable ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 ::: 3 J-APEAL-240-16.odt by the Sessions Court, the learned Additional Sessions Judge-1, Amravati on committal order, conducted the trial. The prosecution examined as many as 9 witnesses in support of its case. The defence of the accused persons was of denial and false implication on assessing the evidence. The learned Sessions Judge found that the prosecution was successful in proving its case against the accused No.1 for commission of offence punishable under Section 302 of the I.P.C. Accordingly, the conviction was recorded.
4. Shri Gour, learned counsel (appointed) vehemently submitted before this Court that the learned Sessions Judge erred in appreciating the evidence. It was his submission that though the prosecution heavily relied on the version of so called eye-witnesses. These eye-witnesses were interested eye-witnesses. He then submitted that the other evidence is also doubtful, as the weapon forwarded for analysis, was not properly sealed. He also made an attempt to submit that the learned Trial Court failed to appreciate the defence on the aspect of the injuries caused to the deceased. It was submitted that the deceased fell on the cement road and with the impact, injury might have been caused in a way, it was the submission that the death of the deceased was not homicidal one, but was an accidental one. The learned A.P.P. supported the Judgment and order. ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 :::
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5. With the assistance of both the learned counsel, we have gone through the evidence brought before the learned Sessions Judge. The prosecution's case mainly rests on the version of the witnesses i.e. PW-3 and PW-5.
6. Insofar as the death of the deceased is concerned, the learned Sessions Judge on the basis of the medical evidence as well as the version of the eye-witnesses, arrived at a conclusion that the death of the deceased was homicidal one. The learned Judge also arrived at a conclusion that the authorship of the crime goes to the appellant i.e. accused No.1.
7. As we are dealing with the version of these eye-
witnesses, later on, firstly, we are dealing with the medical evidence i.e. the version of PW-6 - Dr. Jagdish Madhukar Kalbhor (M.O.), who was the Autopsy Surgeon. It would be necessary to refer to the testimony of Dr. Jagdish Kalbhor. He deposed that on 23/06/2012, he was discharging his duty as a Medical Officer at the Rural Hospital, Warud and on that date, he received Inquest Panchnama forwarded through the officials of Shendurjana-Ghat Police Station and also, the dead body of Jagdish Belsare for autopsy. He performed autopsy between 11.30 a.m. to 12.30 p.m. He found that there are tattoo marks on the right forearm of the dead body with writing "Jagdish". He then deposed that ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 ::: 5 J-APEAL-240-16.odt the dead body was of 30 years male. He referred to the apparels worn by the deceased namely;
1) One light yellow coloured lining shirt soaked with blood and torn near right collar.
2) One sando baniyan soaked with blood. 3) Greyish black lining coloured full-pant and 4) Blue coloured nicker with white and yellow lining.
On external examination, he found the following injuries on the dead body of the deceased namely;
1) Perforating injury elliptical in shape, having size 3½" x 2" x ½" above thyroid cartilage perforating trachea, oesophagus and carotid artery.
2) Perforating injury, having size 3½" x 1½" x 1½"above thyroid cartilage perforating trachea, oesophagus and common carotid artery.
3) Perforating injury, having size 2" x 1" x 1½" above right Sterno clavicular joint (lower portion of the neck joining chest) perforating major neck vessels.
4) Perforating injury, having size 3" x 1½" x ½" below right ear.
5) Perforating injury, having size 2" x 1" x 1" present laterally on right side of neck.
6) Lacerated wound of size 2" x ½" x ½" over right temporal region of head.
7) Linear abrasion of size 4" x 0.5" present over chest.
8) Linear abrasion of size 3" x 0.5" present over back.
On internal examination, he found the following injuries on the dead body of the deceased namely;
1) Fracture of sternum, perforation of trachea of upper one third.
2) Perforation of upper one third oesophagus.
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8. PW-6 - Dr. Jagdish Kalbhor deposed that all these external and internal injuries were ante-mortem. Then, he states that that on examination of these external and internal injuries on the dead body, he arrived at a conclusion that the deceased died due to injury to the major vessel of the neck and trachea. He then states that the injury Nos.1, 2 and 3 of Column No.17 of the post-mortem are fatal in nature and the victim could have caused death in the ordinary course of nature. He then states that he had received the query letter on 25/06/2012 seeking his opinion along with one axe in a sealed condition. He then deposed that on examination of the axe, he found that it was having handle of 29½" and circumference of 4", it was having iron blade of 2½" in width and it was having 6" length from spherical side to sharp side and at near handle it was having circumference of 5½". He found that that the blood stain was there at the blade and handle of that axe. On his examination of the weapon, he replied to the queries affirming that the injuries on the person of victim could have been possible by the said weapon axe. It would be interesting to note that though attempt was made in the cross- examination to show that the injuries caused to the deceased could have been accidental injuries due to fall on the cement road and the deceased might have been under influence of alcohol and while driving the motor cycle, had fallen on the cement road. The Medical Officer, ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 ::: 7 J-APEAL-240-16.odt PW-6 - Dr. Jagdish Kalbhor clearly denied that suggestion. Thus, the evidence of PW-6 is to establish the preliminary aspect that the death of deceased was homicidal one.
9. Now, turning to the other material evidence i.e. of the eye-witnesses PW-3 - Ajay Mahadeorao Takarkhede and PW-5 - Punaji Ramesh Pawar. Firstly, these witnesses are not in relation with the deceased. Secondly, the PW-5 - Punaji Pawar is an independent witness, who was a chance witness and had occasion to see the incident. PW-3 - Ajay Takarkhede deposed that he is the resident of village Shendurjana Ghat and was knowing the deceased Jagdish Belsare as a co-villager. Then he deposed that on 22/06/2012 at about 9.30 p.m., he was standing along with Punaji Pawar in the area known as Weekly Market area situated in front of the Government Hospital. He then deposed that both the accused were present nearby at that point of time. Mr. Jagdish Belsare (deceased) reached on the spot on his motor- cycle. The accused had a grudge against Jagdish Belsare and was having a suspicion that Jagdish Belsare implicated him in the case of theft of tractor. On this backdrop, accused-appellant Raghunath Dhurve started questioning the deceased as to how he named his name in the case of theft of the tractor. The question then resulted in altercation. Mr.Jagdish Dhurve was present along with appellant Raghunath Dhurve. Then accused Jagdish Dhurve caught deceased Jagdish Belsare. ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 :::
8 J-APEAL-240-16.odt PW-3 - Ajay Takarkhede then deposed that the accused-appellant Raghunath Dhurve then rushed to his house and brought an axe and gave a blow of axe at the neck of Jagdish Belsare. Jagdish Belsare fell down with bleeding injuries. He further deposed that he went to the house of the father of Jagdish Belsare and informed him about the incident and brought the father of victim Jagdish Belsare to the place of incident. He then reiterates that the appellant Raghunath Dhurve killed Jagdish Belsare. Then he further deposed that there was an electric pole at the place of incident and the electric supply was available and in the light of electric pole and in that light, he had witnessed the incident. In the cross-examination of this witness, an attempt was made to show that the witnesses failed to intervene in the assault so as to save the victim. In the cross-examination, an attempt was made to suggest that this witness was only a silent spectator and though he had witnessed the incident, failed to make any positive attempt. Though Shri Gour, learned counsel vehemently submitted that there are certain omissions in the version of this witness. On assessing the version of these witnesses, we are of the opinion that these omissions are of so minor nature that they hardly affected otherwise unshaken and clear version of PW-3 - Ajay Takarkhede.
10. Similar is the case of other star witness PW-5 Punaji Ramesh Pawar. Punaji Pawar was also present on the spot on ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 ::: 9 J-APEAL-240-16.odt 22/06/2012 at about 9.30 p.m. His version is in tantamount with the version of PW-3 - Ajay Takarkhede. Punaji Pawar refers to the father of the appellant ran to his house and brought axe from his house and gave successive blows of axe on the neck of Jagdish Belsare. He then deposed that Jagdish Belsare fell down with bleeding injuries and on seeing this, he was so frightened that he immediately left the spot and went to his house. In the cross-examination, an attempt is made to suggest that this witness is an interested witness as he has friendly terms with PW-3 - Ajay Takarkhede is also an attempt made in the cross-examination to show that this witness made no hue and cry even though he witnessed the incident. Learned counsel for the appellant made a reference to the certain omissions like PW-3 - Ajay Takarkhede. The omissions brought on record are of minor nature. They are not damaging the version which is otherwise truthful and clear revealing the presence of the appellant on the spot. The appellant who rushed to his house, came back to this spot with an axe in his hand and gave successive blows to the victim. It may not be out of place to state that the death was an instantaneous death, though an attempt is made by the learned counsel to submit that the behaviour of these witnesses creates doubts. The learned counsel submitted that both of these witnesses though witnessed the incident, made no attempts either to call for help or to assist the victim or to intervene while assault is being made or the injuries were inflicted upon the victim.
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11. We are not inclined to accept the submission of learned counsel. It is now settled view of the Hon'ble Apex Court that merely because the witness is having relationship with the deceased or is having friendly terms with the deceased, the witness cannot be branded as an interested witness. His version, if assessed and found truthful merely his partisanship with the victim is no ground to discard otherwise truthful version of said witnesses.
12. Secondly, it is now settled view reflected from the Judgment of this Court as well as the Hon'ble Apex Court that the witnesses may act in different ways. It is not a straight jacket formula of reaction of witness in a particular way. The reaction of the witness may differ such as somebody may raise a cry, somebody after witnessing gruesome incident may be speechless, somebody may rush to help the victim and somebody, in a frightened state, may leave the spot immediately. The reaction of both these witnesses cannot be termed as an unnatural reaction and merely because these witnesses made no attempt to raise a hue and cry or made no attempt to stop the attack, cannot be a ground to discard the version of these two witnesses. The other witnesses are two panch witnesses, who are the formal witnesses.
13. It would be again useful to refer to the evidence of the Investigating Officer i.e. PW-7 - Sunil Vishnu Kinage, who provides us ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 ::: 11 J-APEAL-240-16.odt the details of the steps undertaken by him in the course of investigation. The evidence of the Investigating Officer discloses the steps taken such as on receiving the information, rushed to the spot immediately, effecting the arrest of the accused persons, subjecting the accused persons to search, drawing the panchnama after visiting the spot, collecting the material from the spot namely; the blood stains, soil and ordinary soil. This witness also states about the other steps such as obtaining the report from the Junior Engineer, MSEDCL in respect of availability of the electricity supply on the fateful day. Though the attempt is made in the cross-examination to submit that the accused were not having any criminal antecedents at their credit and though the PW-7- Sunil Kinage replied in the affirmative, it hardly helps the appellant to raise any defence in respect of authorship of the crime.
14. PW-9 is Ghanshyam Mahadeorao Gurukar, who had conducted the part investigation. He took steps in the investigation, such as registering the crime on receiving the report through father of the victim i.e. Shankar Belsare, visiting the Rural Hospital, drawing the Inquest Panchnama, then forwarding the dead body of the victim to Autopsy Surgeon. The Investigating Officer also seized the weapon used in the commission of the offence, which was produced at the instance of the appellant. It may be useful to refer to the evidence of this witness in respect of the weapon. He deposed that he along with the accused, ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 ::: 12 J-APEAL-240-16.odt panchas and other staff reached to the house of accused. The appellant- accused went to the corner of the house where the fuel wood was kept and the appellant-accused produced one axe from the heap of fuel wood. The axe was beneath the fuel wood and was not visible. He then deposed that the axe was having wooden handle and iron blade and blade portion was having mud and blood stains. Then he states that axe was having length of 29½ inches, having diameter of 4 inches and blade was 2½ inches breadth. Then he stated about the recording of seizure panchnama effecting the signatures of the panchas. Then he deposed that the query letter forwarded to the Medical Officer on 25/06/2012 as to whether the injuries sustained by the victim Jagdish Belsare could have been caused by the axe. The query letter is at Exh.68. Then he states about the opinion on the query letter forwarded to the Medical Officer at Exh.57. Then he deposed about the articles forwarded to the Chemical Analyzer. He clearly states that all these articles were in a sealed condition and after his verification, he forwarded those articles. Then he states about the seizure of the clothes worn by the appellant and other accused Jagdish Dhurve and drawing the panchnama of that seizure. The said panchnams are at Exhs.50 and 51. The documents namely; forwarding of the articles to the Chemical Analyzer and the Chemical Analyzer's reports are the admitted documents by the defence. The witness was subjected to cross-examination and the defence could not elicit much from this witness either to falsify the version of this ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:46:52 ::: 13 J-APEAL-240-16.odt witness or to support the case of the appellant in defence. The material collected by the Investigating Officer reflected from the Chemical Analyzer's report also support the case of the prosecution. The defence counsel could not avail any help from the cross-examination of the material witness on the aspect of a Chemical Analyzer's report.
15. Considering the evidence relied on by the prosecution, we are of the opinion that the prosecution with the help of the star witnesses i.e. PW-3 - Ajay Takarkhede, PW-5 - Punaji Pawar and PW-6
- Dr. Jagdish Kalbhor proved its case against the appellant beyond reasonable doubt. The conclusion arrived at by the learned Sessions Judge in respect of the authorship of the crime by the appellant and accordingly recording the judgment of conviction is just and legal. We see no merit in the appeal. The appeal is thus, being devoid of merit, deserves to be dismissed and the same is accordingly dismissed.
16. The fees of Shri Gour, learned counsel (Appointed) for the appellant is quantified at Rs.5,000/-.
JUDGE JUDGE
Choulwar
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