Aba Narayan Kale vs The State Of Maharashtra
2004 Latest Caselaw 92 Bom

JUDGMENT

Palshikar, J.

1. Being aggrieved by the judgment and order of conviction and sentence passed on 22.3.1999 by VI Additional Sessions Judge, Satara in Sess. Case No. 179/98 the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned advocate appearing on behalf of the appellant before us.

2. With the assistance of the learned counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence.

3. The prosecution story as revealed on reappreciation of evidence on record stated briefly is that there was a dispute between the family of the accused and the family of the deceased victim. The accused beat one Anil Taware because he had abused son of the accused when the father of said Anil went to enquire as to why Anil was beaten the accused got annoyed and brought an iron bar from his house to hit Anil. Because of the interception of Govardhan iron bar fell on the thigh of said Anil. The accused thereupon left iron bar and throttled Anil as consequence of which Anil died. He was rushed to the hospital where he was declared dead and therefore First Information Report was lodged, pursuant to which investigation was undertaken, accused was arrested and prosecuted. The prosecution examined as many as 11 witnesses to prove its case of murder of Anil by throttling by accused. On appreciation of that evidence Additional District Judge, Satara found the accused guilty of the offence and therefore punished him to suffer imprisonment for life as aforesaid. It is this order which is challenged in this appeal.

4. P.W.1-Rajendra Sande and P.W.2-Sunil Jagtap are declared hostile as they did not depose constantly with their police statement recorded earlier under Section 161 of Criminal Procedure Code. It cannot therefore be said with any certainty that what they deposed before the police was correct or what they deposed before the Court was correct. In such circumstances their evidence is liable to be rejected.

5. P.W.3-Manik Jagtap and P.W.4-Pandurang Jagtap are panch witnesses who proved the documents executed in their presence. The credibility of these witnesses cannot be doubted. P.W.5-Dr. Lila Salunkhe who conducted the post mortem came to the conclusion that the victim Anil met with homicidal death. P.W.6-Navnath Bhosale, P.W.8-Krishna Hipparkar and P.W.9-Govardhan Taware are eye witnesses to the incidence of assault and throttling. P.W.7-Vikas Jagtap is the witness to earlier assault which took place in the noon of 24.4.1998. P.W.11-Dr. Sanjay Chivate who examined the accused found that there was no external injury on the body of the accused. The defence also examined one witness to prove that the accused was not guilty. On appreciation of this evidence on record particularly eye witnesses conviction is recorded by the learned trial Judge.

6. P.w.6-Navnath Bhosale is the first eye witness and he gives complete account of assault and throttling that took place on 24.4.1998. He has deposed that Aba Kale present appellant-accused caught hold of neck of Anil by his hands and pressed neck of Anil. He categorically states that this incidence of throttling went an for about five to seven minutes. The witness speaks of their attempt to separate Anil the victim and the appellant-accused but when they were so trying to pull away the appellant-accused he did not leave the neck of the victim Anil and clinched to it and continued throttling. He has been cross examined but nothing worthwhile is revealed by cross examination which will discredit the testimony of this witness.

7. P.W.7-Vikash Jagtap is witness to the earlier assault by accused on the victim. From his evidence it is obvious that the deposition of P.W.6-Navnath Bhosale when he narrates the earlier incidence is correct and both corroborate in general. P.W.8-Krishna Hipparkar is also an eye witness and he gives complete description as to how the assault went on. The description given by this witness is graphic. It is worthwhile to note it in extenso.

"I witnessed this incidence from the distance of 10 ft. I am illiterate. Aba Kale fetched one iron bar from his house. Aba Kale rushed towards Anil to beat him by that iron bar. Goverdhan Taware intercepted Aba Kale. During this incidence, the iron bar in the hand of Aba Kale touched with the body of Govardhan Taware. Dhotar and shirt of Govardhan torned. Govardhan received injury over his thigh. Therefore, Govardhan fell down. Aba Kale left' the iron bar which was in his hand. Aba Kale caught hold neck of Anil by his both hands. Aba Kale made Anil to fall over the heap of roots of sugarcane. Aba Kale kept his both knees over both Gudade of Anil. Aba Kale pressed neck of Anil. Govardhan Taware and Navnath Bhosale held shoulders of Aba Kale and started pulling him away. Goverdhan and Navnath pulled Aba Kale for two or three times by fielding his shoulders. However, they could not separate Aba Kale from Anil. At the time of above incidence, Aba Kale was pulled away along with Anil. Thereafter, Aba Kale relieved his grip from the neck of Anil."

It will be seen that apart from cross examination being inconsequential this witness substantially corroborates testimony of P.W.6-Navnath Bhosale and categorically brings out the fact that the accused was so bent on crushing throat of Anil that even two persons were unable to pull accused away or get his grip on the throat of the victim released.

8. P.W.9-Govardhan Taware is father of the victim Anil. He has deposed to the entire incidence. He has identified iron bar with which Anil was first hit. He has identified the clothes of the victim and he describes the incidence in almost same manner as P.Ws.6 and 8 do. There is therefore ample corroboration of all the ocular testimony existing in this case. P.W.6, 8 and 9 are eye witnesses and there is nothing on record to show that their testimony was liable to be rejected. The prior history of the incidence has been given by P.W.7 who was eye witness to prior assault, A cohesive reading of this evidence takes us to the conclusion that the findings recorded by the learned trial Judge convicting the appellant-accused under Section 302 of Indian Penal Code were correct. We see no reason to interfere with these findings of fact. In the result therefore appeal fails and is dismissed.