Bombay High Court
Unknown vs The State Of Maharashtra on 30 November, 2012
Bench: V.K. Tahilramani, A. R. Joshi
757.05-cr.appeal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.757 OF 2005
Vishnu Rama Shid ...Appellant
V/s.
The State of Maharashtra ...Respondent
Ms. Rohini Dandekar, Advocate appointed for the appellant.
Mr. S. A. Shaikh, APP for the State.
CORAM: SMT. V. K. TAHILRAMANI &
A.R. JOSHI, JJ.
DATED : 30th NOVEMBER, 2012.
JUDGMENT (PER : A.R. JOSHI,J.)
1. Heard rival submissions on this criminal appeal preferred by the
appellant - accused challenging the judgment and order dated 31 st
March 2005 passed by the IInd Adhoc Additional Sessions Judge,
Nashik in Sessions Case No.166 of 2004.
2. By the impugned judgment and order, the appellant-accused was
convicted for the offence punishable under section 302 and was
sentenced to suffer imprisonment for life and to pay fine of Rs.1000/-,
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in default to undergo rigorous imprisonment for six months. The
appellant-accused was also convicted for the offence punishable under
section 201 of the Indian Penal Code and was sentenced to suffer
rigorous imprisonment for two years and to pay fine of Rs.1000/-, in
default to undergo rigorous imprisonment for 6 months.
3. The case of the prosecution, in nut shell is as under:
The first informant P.W. No.1 Navnath Shid and the present
appellant-accused had their agricultural properties adjacent to each
other. There was dispute on account of the boundary between two
agricultural fields and there used to be quarrel between the two. The
main incident of assault occurred on 5 th July 2004 in the afternoon.
Prior to the main incident, in the morning, there was quarrel between
the first informant P.W. No.1 and the appellant-accused when P.W. No.1
was cultivating his field. During that quarrel, the appellant-accused
pelted stones on P.W. No.1. P.W. No.1 came back to his home and told
his wife Devakibai (since deceased) regarding the incident of quarrel
and pelting of stones. It was decided to lodge a complaint with the
police and hence Devakibai proceeded to the police station for lodging
a complaint. This happened some time by 12.00 noon on 5th July 2004.
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4. According to the case of prosecution when victim Devakibai was
on her way to the police station, at about 1.30 p.m. or so she was
accosted by appellant-accused and he assaulted her by means of
sickle/koyta. The said assault was witnessed by P.W. No.3 Sampat
Chavan and also by P.W. No.4 Anita Chavan who were present near the
spot but at some distance. Prior to actual assault there was quarrel and
it was witnessed by P.W. No.7 Houshiram. He tried to intervene but
could not succeed. As Houshiram was to catch some transport bus, he
left the spot. Thereafter also the quarrel between the appellant-
accused and victim Devakibai continued and this time the appellant-
accused assaulted her by means of sickle/koyta and this was witnessed
by P.W. Nos.3 and 4 as earlier mentioned. After the assault, Devakibai
fell on the ground. The assault was so severe that in the first blow
itself her neck was almost cut and almost severed from the rest of the
body, causing cut injury to her spinal cord. Probably, it was a fatal blow
causing instantaneous death. However, thereafter also appellant-
accused continued to assault the victim. When the persons from nearby
area started gathering there, appellant-accused ran away from the spot
and in that process threw the sickle/koyta he was holding, in the water
of some nearby dam.
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5. According to the case of the prosecution, initially when P.W.
No.1 informed his wife Devakibai and asked her to lodge a complaint
against the appellant-accused, he again went to his field and started the
agricultural work. He was in the field till 6.00 p.m. That time, his
children, neighbours and police persons came to his field and informed
regarding the assault on the Devakibai and that she was found dead
when on her way to proceed to Trimbakeshwar Police Station.
According to P.W. No.1, eye witness P.W. No.3 Sampat Chavan and one
girl also informed him that the appellant-accused has killed his wife.
P.W. No.1 then went to Trimbakeshwar Police Station and lodged his
complaint Exhibit-8.
6. According to the case of the prosecution, initially on knowing the
incident of assault and death of Devakibai, Police Patil reached the spot
on that afternoon on some anonymous call. The Station Diary
regarding the said call was made by the police. Usual procedure was
followed on the spot for inquest panchanama, spot panchanama etc.
and police personnel were sent for apprehending the appellant-accused
and as such the appellant-accused was arrested in the evening on the
same day i.e. 5th July 2004. During investigation, the appellant-accused
made a statement to produce the sickle and on 7 th July 2004 a sickle
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Article-10 was recovered at his instance. Accordingly, the recovery
panchanama Exh-31 was drawn in which P.W.No.11 Walmik Chavan
took part as a panch. P.W.No.12 Kailash Chavan is also examined by the
prosecution, as according to him he was also present at the spot where
the sickle was discovered at the instance of the accused as his village
was near to the area of water dam. The arrest panchanama was
conducted in presence of panch and it was supervised by P.W.No.13
Balasaheb Bhanudas Waghmode, Sub Divisional Police Officer. The
said arrest panchanama is at Exh.20. At the same time, the shirt
accused was then wearing was taken charge of. The said shirt Article-15
was seized on the same evening of the incident.
7. On completion of investigation, charge sheet was filed and the
matter was committed to the Court of Sessions and it was finally heard
and ended in conviction of the appellant-accused. Hence, the present
appeal.
8. The entire case of the prosecution mainly rests on the substantive
evidence of main prosecution witnesses P.W. Nos.3 and 4. Both are the
eye witnesses and corroborate the case of the prosecution and also
substantiate the involvement of the appellant-accused in the assault on
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the victim. Even substantive evidence of P.W. No.1 Narayan Shid speaks
regarding earlier incident of pelting of stones by appellant-accused on
him and thereafter P.W.No.1 coming to his house and informing
Devakibai and asking her to lodge a complaint. Even in the substantive
evidence of eye witness P.W. No.4 Anita Chavan she makes a reference
regarding the presence of Houshiram-P.W. No.7. According to her, she
saw accused and Devakibai quarreling on Trimbakeshwar road and at
that time, Houshiram intervened and stopped their quarrel. However,
thereafter, Houshiram proceeded to Trimbakeshwar, as he was to catch
the vehicle to proceed ahead. Thereafter also the quarrel continued
between the accused and Devakibai. That time, P.W. No.4 saw the
accused taking out sickle/koyta from near his waist and gave a blow of
sickle/koyta on the back side of neck of Devakibai. He gave 2-3 blows
even after Devakibai fell on the ground. The injuries on Devakibai are
so severe as mentioned earlier and probably the first blow was a fatal
blow. The said injuries as reported by Dr. Pravina Pawar P.W.No.14, are
as under:
1) Incise wound over posterior aspect of neck of size 17 cm.
Long, by 6 cms. and bone deep more on left side. Underlined
muscles, and bones exposed. It was a cut (illi) injury of neck
(cutting spinal cord & spine) partially separating head from body.
Cut was at the level of second survical.
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2) Incise wound on right shoulder 3 x 1 x 1 inches.
3) Abrasion on right knee having size 4 cm x 4 cm.
2) On opening body I found brain matter and manige
congested with multiple munute hemorrhages. Other organs of
body were pale. Second survical brain was cut.
3) All these injuries were antemortem in nature. In my
opinion Devakibai died because of hemorrhagic and Qnic shock
because of injury to the spinal cord.
9. Substantive evidence of P.W. No.4 is otherwise corroborated by
substantive evidence of P.W.No.7 Houshiram as he had intervened the
quarrel at the initial stage when he saw the appellant-accused
quarreling with Devakibai on Trimbakeshwar road. Even according to
P.W.No.1 Narayan Shid, he was informed by Houshiram regarding the
said quarrel.
10. It is apparent that the case of the prosecution is having
overwhelming evidence of eye witnesses as discussed above coupled
with recovery at the instance of the accused as to his shirt and also the
sickle/koyta at his instance. After going through the substantive
evidence of the prosecution witnesses, we are of the considered view
that the trial court had rightly appreciated the evidence in coming to
the conclusion of the guilt of the appellant-accused for the offence of
murder.
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11. On behalf of the appellant-accused, a feeble attempt was made
by the learned Advocate Ms.Rohini Dandekar mentioning that the eye
witnesses cannot be believed, as according to P.W.No.3, he saw the
incident of assault from a distance of about 100 feet. For this purpose,
the evidence of P.W. No.3 Sampat Chavan is brought to our notice. So
far as the another eye witness P.W. No.4 is concerned, there is no such
evidence available on record as to from how much distance she had
witnessed the assault. All the same, still if it is accepted that P.W. No.3
Sampat Chavan witnessed the incident from 100 feet, there is nothing
brought on record that he is unable to see the object from some
distance. Moreover, it cannot be lost sight of the factual position that
the incident of assault took place on broad day light at about 1.30 p.m.
or so on the open public road i.e. Trimbakeshwar road. As such, the
argument on behalf of the appellant-accused as to raising doubt, on the
substantive evidence of P.W. Nos.3 and 4, cannot sustain. Apart from
this sole submission, there was nothing argued on behalf of the
appellant-accused. In the result, considering the substantive evidence
produced before the court, there is nothing to entertain the present
appeal so as to quash and set aside the judgment and order of
conviction or to alter the same in any manner. In the result, there is no
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merit in the present appeal and the same is accordingly dismissed.
12. Intimation be given to the appellant through Jail Authorities.
(A.R. JOSHI, J.) (SMT. V. K. TAHILRAMANI,J.)
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