Tejram S/O Jaipal Warkade vs The State Of Maharashtra, Through ...
2005 Latest Caselaw 198 Bom

JUDGMENT

D.D. Sinha, J.

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1. Heard Mr. Daga, learned Counsel for the appellant and Mrs. Dangre, learned Additional Public Prosecutor for the State.

2. The appeal is directed against the judgment and order dated 5.2.2001 passed by the Additional Sessions Judge, Gondiya, in Sessions Trial No. 8/2000, whereby the appellant is convicted for the offence punishable under Section 302 of Indian Penal Code and is sentenced to suffer R.1. for life and to pay fine of Rs. 5,000/- and in default of payment of fine, R.1. for 6 months.

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3. The prosecution case in nutshell is as follows;

On 27.11.99 PW-1 Kacharu went to the police station, Tirora and lodged report - Exh. 12. Kacharu informed Police Station Officer that on 27.11.99 at about 12 noon in front of shop of Raju (PW-2) he saw appellant assaulted deceased Madan Hatwar by means of an axe. The accused gave blows by means of axe on back, neck, hands and legs of deceased Madan. After the incident, Kacharu rushed to the Police Station, Tirora and gave information about the incident and lodged report. The crime under Section 302 of Indian Penal Code on the basis of report lodged by Kacharu came to be registered.

4. PW-10, Police Inspector Gawai visited the spot and recorded inquest as well as Spot Panchanama in presence of panchas. He collected samples of earth, earth stained with blood from the spot. At about 4 to 5 p.m. on 27.11.1999 the appellant was arrested and at the time of arrest the article "axe" was seized from the possession of the appellant. It is the case of the prosecution that when the appellant was in the custody of police, he gave information that he has kept his clothes at his house and would hand over the same. Memorandum of information was recorded and at the instance of the appellant, PW-10 - Gawai seized clothes of the accused from his house. Dead body of the deceased was forwarded for post-mortem examination. Investigating Officer recorded statement of material witnesses, collected clothes of deceased and forwarded the seized property to the Chemical Analyser, Nagpur, for analysis. After completion of the investigation, charge-sheet was filed against the appellant. Charge was framed under Section 302 of Indian Penal Code against the appellant, to which the appellant pleaded not guilty. The defence of the appellant is that of denial.

5. Mr. Daga, learned Counsel for the appellant submitted that though the prosecution has examined PW-1 -Kacharu, PW-2 - Raju, PW-3 - Vinod and PW-4 - Vishal as eye-witnesses to the incident, however, their testimonies reveal that they were not present at the time of incident of assault and their testimonies therefore create doubt about the authenticity of their version. It is submitted that so far as PW-1 Kacharu is concerned, in the cross-examination he has admitted that he had seen the incident from a distance of 50 feet. It is submitted that though he has denied the suggestion that some one informed him that the person who was lying on the ground was Madan, however, from the tenure of the testimony of this witness, it appears that this witness could not identify the deceased as Madan.

6. It is submitted that PW-2 - Raju is the owner of small Hotel-cum-Pan Shop where he used to serve tea to the customers and the alleged incident had taken place in his Hotel. It is contended that since there were other customers sitting in the Hotel of PW-2 - Raju, it was not possible for him to witness the alleged incident. Mr. Daga, the learned Counsel for the appellant further argued that though this witness has denied the suggestion that he was informed about the incident by some boys who were present in the Hotel but the oral testimony of this witness does show that he could not witness the incident.

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7. Mr. Daga, the learned Counsel for the appellant further contended that so far as evidence of PW-3 - Vinod and PW-4 - Vishal is concerned, the same is also not consistent with the material particulars of the prosecution case. On the other hand from the testimony of PW-4 - Vishal, it is evident that, at the relevant time, he was studying in 12th standard in the morning shift of the college. It is submitted that this witness has denied the suggestion that he reached the place of incident at 1 p.m., however, from the above referred facts which are finding place in the cross-examination of this witness, it shows that he was not present at the time of incident. Mr. Daga, the learned Counsel for the appellant therefore contended that the evidence of the above referred eye-witnesses is in view of the short comings referred to hereinabove in their testimonies creates doubt about their presence at the scene of offence and therefore, it is unsafe to rely on the testimonies of these witnesses. Mr. Daga, the learned Counsel for the appellant further contended that the other circumstances brought on record by the prosecution coupled with the medical evidence is incapable of proving the case of the prosecution against the appellant for the offence charged and therefore, the judgment and order impugned in the present appeal is unsustainable in law.

8. Mrs. Bharti Dangre, learned Additional Public Prosecutor, on the other hand, submitted that the evidence of eye-witnesses is free from any contradiction and omission and is consistent with the material particulars of the prosecution case and is corroborated by the medical evidence. It is further contended that the Trial Court after due appreciation of the evidence adduced by the prosecution rightly recorded the finding of conviction against the appellant for the offence punishable under Section 302 of Indian Penal Code. It is submitted that the Chemical Analyser Report reveals that Articles 2 & 3 i.e. clothes of the accused as well as Articles 4 & 5 i.e. the clothes of the deceased were stained with blood of 'B' Group. Similarly, Article 1 i.e. 'Axe' was also stained with blood of 'B' Group. It is submitted that in the instant case there were no injury found on the person of the accused at the time of arrest and therefore, the blood which is detected on me clothes of the accused as well as on the 'Axe' was that of deceased, which is a clinching circumstance proved by the prosecution which connect the accused with the crime in question.

9. We have considered the contentions canvassed by the respective counsel. In the instant case there are 4 prosecution witnesses such as PW-1 - Kacharu, PW-2 - Raju, PW-3 - Vinod and PW-4 - Vishal, examined by the prosecution as eye-witnesses to the incident and therefore, it will be appropriate to scrutinise the evidence of these witnesses.

10. PW-2 Raju is the owner of the small Hotel where he used to serve tea as well as Pan to the customers. It has come in his examination-in-chief that on 27.11.1999 at about 11.30 to 11.45 a.m. he was present in his hotel. Deceased Madan came to his hotel at about 11 a.m. This witness served him a tea. Deceased Madan after taking teak was sitting in the Hotel of this witness and was reading newspaper. It has come in the examination-in-chief of PW-2 that PW-3 - Vinod and PW-4 -Vishal were also present in his hotel. This witness has stated in his testimony that the appellant entered his hotel and Page 1479 inflicted injuries by means of an 'axe' on the head of the deceased Madan. Appellant asked the persons who were sitting in the Hotel of this witness to leave the place and thereafter again assaulted Madan by means of an 'axe'. This witness got frighten and ran away from the hotel and while running away he again noticed that the appellant was inflicting injuries on the deceased Madan by means of an 'axe'. After some time when this witness learnt that the accused ran away from the spot, this witness came back to his hotel and saw deceased Madan was lying on the ground in pool of blood. Deceased Madan was dead. While going through cross-examination of this witness, we find that there are no contradiction or omission in respect of material particulars of the prosecution case and the presence of this witness on the scene of offence is most natural since he was the owner of the hotel in which the incident has taken place. The evidence of this witness, therefore, is most natural and truthful.

11. So far as evidence of PW-1 Kacharu is concerned, it has come in his examination-in- chief that on the day of incident at about 11 a.m. he was present in his bicycle shop which is adjacent to the hotel/pan shop of PW-2 - Raju. It has come in his testimony that he saw the appellant was giving blows of axe on the back, legs and hands of the deceased. The testimony of this witness further reveals that after seeing the above referred incident of assault committed by the appellant on the deceased, this witness immediately went to the Police Station Tiror and lodged the oral report which is Exh. 12. It has come in the cross-examination of this witness that he had seen the incident from a distance of 50 feet and he had also identified that the person lying on the ground was Madan. There are no contradiction or omission of a material nature in the testimony of this witness. On the other hand, the case of the prosecution disclosed by this witness in his examination-in-chief to some extent is re-affirmed in the cross-examination. The evidence of this witness is not only independent and straight forward but the same also corroborates the material particulars of the prosecution case disclosed by this witness in his oral report Exh. 12.

12. PW-3 Vinod is another independent witness examined by the prosecution. In examination-in-chief of this witness, it has come that on 27.11.1999 at about 11 a.m. he went to the hotel/shop of PW-2 - Raju. Deceased Madan was sitting in the said hotel. The appellant entered the hotel of PW-2 - Raju with axe and inflicted the injuries by means of an axe on the person of deceased Madan. PW-3 - Vinod has further stated in his examination-in-chief that after inflicting injuries on the body of the deceased, appellant also threatened the other persons including this witness who were present in the hotel/shop of Raju - PW-2. It has come in the cross-examination of this witness that the appellant gave first blow on the head of the deceased. There are no contradictions or omissions in the testimony of this witness, on the other hand the case of the prosecution disclosed by this witness in his examination-in-chief to some extent re-affirm in the cross-examination of this witness. The testimony of this witness also corroborate the material particulars of the prosecution case disclosed by PW-1 - Kacharu and PW-2 - Raju.

13. Similarly, the evidence of PW-4 - Vishal also reveals that at the relevant time he was present in the hotel of PW-2 -Raju. Appellant entered the hotel Page 1480 with the axe in his hand and assaulted deceased Madan by means of an axe. While going through the cross-examination of this witness, we find no material omission and contradiction in the testimony of this witness. The testimony of this witness completely corroborate with the material particulars of the prosecution case disclosed by the other eye-witnesses. The presence of this witnesses at the scene of offence is established even by the testimony of PW-2 - Raju. Therefore, the contention canvassed by the learned Counsel for the appellant in this regard is misconceived and devoid of substance.

14. After careful scrutiny of the testimonies of the above referred eye witnesses, it is evident that these witnesses are independent witnesses and their presence at the scene of offence in the facts and circumstances of the present case was most natural. The criticism levied by the counsel for the appellant that the PW-1 could not have witnesses the incident since he was standing at the distance of 50 feet from the place of incident cannot be accepted in absence of anything on record to show that the eye sight of PW-1 Kacharu was week. The incident had taken place in broad day light and a person with normal eye sight can always witness the incident from a distance of 50 feet. Similarly, the contention of the learned Counsel for the appellant that since there were many customers present in the hotel at the time of incident, PW-2 could not have witnessed the incident is also incorrect. On the other hand, since the shop/hotel where the incident had taken place was a small place and therefore, it was clearly possible for PW-2 - Raju to witness the incident which had taken place in his shop. The another contention which is canvassed by Mr. Daga that the presence of PW-4 - Vishal at the time of incident is imporable is also not correct. The presence of this witness at the time of incident is established by the testimony of PW-2 - Raju who has stated in his evidence that PW-4 - Vishal was present in his shop/hotel at the levant time on 27.11.1999.

15. It will be appropriate at this stage for us to consider the medical evidence of PW-9 - Dr. Prashan in order to find out whether the ocular testimonies of the eye witnesses are corroborated by the medical evidence. The medical evidence of Dr. Prashant shows that deceased Madan suffered following injuries.

1. Clean incised wound over right lateral aspect of neck upper aspect 7 c.m. x 2 c.m. Depth 3 c.m., bone was visible from the wound.

2. Clean incised wound over right lateral aspect of neck 4 c.m. above injury No. 1 and parallel to injury No. 1 5 c.m. x 2 c.m.

3. Clean incised wound over left side from lateral canthous of left eye to parietal 10 c.m. x 2 c.m. There was fracture of parietal bone, it was depressed.

4. Clean incised wound over right wrist 5 x 3 c.m. over radial side with deformity of right wrist present due to fracture of right radious and ulna, head.

5. Clean incised wound over left palm in between left middle and right finger, 3 x 1 c.m. with fracture of pharinx of left right finger.

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6. Clean incised would over left lower leg lower 1/3, 5x3 c.m. with deformation of left lower leg present due to fracture tibia and fibula lower 1/3 left side.

7. Clean incised wound over right lower leg middle 1/3 horizontal 5 x 3 c.m. with fracture of fibia right side.

8. Clean insided wound over right lower leg lower 1/3 3 x 2 c.m. medially.

9. Clean incised wound over right lower leg 1/3 lateral aspect 5 x 2 c.m.

10. Clean incised would over occipital region horizontal, 6 x 2 c.m. with depressed fracture at the injury side.

11. Clean incised wound over neck upper aspect of posterior side, 4 x 2 c.m.

There was huge haemotoma present beneath injury No. 17(3). Brain was compress/depressed, beneath injury No. 10 Colm. No. 17.

Both the lungs were pale, heart pale, there was semi digested food in the stomach. In intestine gases distended.

Dr. Prashant has opined that the cause of death was due to injury to the vital organ i.e., brain. Injuries No. 3 and 10 are in the opinion of Doctor were sufficient to cause death in the ordinary course of nature. The testimony of Dr. Prashant further reveals that he has examined the 'axe' -Article 1 and opined that the injuries mentioned in Column No. 17 were possible by 'axe' - Article-1. The medical evidence in the instant case, in our considered view, completely corroborate the material particulars of the prosecution case disclosed by the eye-witnesses.

16. There are other circumstances brought on record by the prosecution which lend further corroboration to the prosecution case. The Chemical Analyzer's Report shows that blood of 'B' Group is detected on the domes of the deceased as well as accused/appellant. Blood of 'B' Group is also detected on the axe. In absence of any injury to the accused or any explanation by the accused in this regard in the examination under Section 313 of the Criminal Procedure Code, it is possible to infer that the blood detected on these articles was that of the deceased. These circumstances directly connects the appellant with the crime in question.

17. In the present case the scrutiny of prosecution evidence show that the testimonies of eye-witnesses are consistent, corroborates the material particulars of the prosecution case and their presence at the scene of offence is also established. The evidence of these eye witnesses is completely corroborated by the medical evidence and also by the report of Chemical Analyzer and therefore, we are of the considered view that the prosecution succeeded in proving the case of murder against the appellant and therefore, the findings of conviction recorded by the Trial Court against the appellant for the offence punishable under Section 302 of Indian Penal Code are just and proper and are sustained in law. Hence, the appeal is dismissed.