Baba Bapurao Mungale vs The State Of Maharashtra, Through ...
2015 Latest Caselaw 339 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR
                           Criminal Appeal No. 495 of 2013




                                       
     Baba Bapurao Mungale,
     aged 70 years,          
     resident of Daroda,
     Tq. Hinganghat,
     Distt. Wardha.
                            
     [presently in District Prison,
     Wardha].                                         .....           Appellant.

                                       Versus
      

     State of Maharashtra,
     through Police Station Officer,
   



     Police Station, Wadner,
     Tq. & Distt. Wardha.                             .....       Respondent.


                                  *****





     Mr. Mahesh Rai with Ms. Khobragade, Advs., for the Appellant.
     Mrs. Mayuri Deshmukh, Addl. Public Prosecutor for respondent
     sole.
                                *****





                                    CORAM :        V. M. DESHPANDE, J.

                                    Date       :   16th Sept., 2015.


     ORAL JUDGMENT:





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01. By the present appeal, the appellant is questioning the

legality and correctness of the Judgment and Order of conviction dated

19th December, 2011, passed by learned Additional Sessions Judge,

Wardha, in Sessions Case No. 30 of 2011, by which the appellant is

convicted of offence punishable under Section 304 Part II, Indian Penal

Code, and was directed to suffer Rigorous Imprisonment for seven

years and to pay a fine of Rs. 5,000/-, in default, further Rigorous

Imprisonment for six months

The facts, which are just for the appreciation of the

prosecution case, can be narrated hereunder:-

02. Wasudeo Admane [PW 1] lodged an oral report with Police

Station, Wadner, on 12th November, 2010. His Oral Report is at Exh.16.

According to the said report, the house of the appellant is situated near

highway and thereafter, beyond the house of the appellant, the

agricultural field of the first informant and his family is situated. The

first informant and his other family members, including deceased

Kisana, were required to pass from the house of the appellant.

According to First Information Report, appellant used to raise suspicion

about the family members of the first informant.

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On 12th November, 2010, first informant's father,

Namdeorao, and brother, Maroti, were standing near the house of

Appellant - Baba. That time, he used choicest abusive words against

them and, therefore, both of them came to house and the same was

disclosed to the first informant. Therefore, first informant along with

Maroti Admane [PW 4], Kisana Admane [deceased], Yashwant Borkar

[PW 2] and Sunil Khandalkar came to the house of appellant for giving

a word of advice to him. That time, appellant was inside his house.

The aforesaid persons, as per the prosecution, questioned as to why

the appellant abuses the family members of the first informant. That

time, from inside his house, the appellant started using abusive words

in loud voice. Thereafter he came out of his house and then all of a

sudden gave a knife blow on the person of Kisana [deceased].

03. On 12th November, 2010, Rajkamal Waghmare was attached

to Police Station, Wadner. He received a letter [Exh.49] from Rural

Hospital. He immediately rushed to the said hospital. When he

reached there, Kisana was in the casualty ward, however, in a dead

condition. He made enquiry with Wasudeo Admane who gave the

report in the Police Station [Exh.60]. The offence punishable under

Section 302, Indian Penal Code, was registered vide Crime No. 79 of

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2010. Printed FIR is at Exh.17.

Rajkamal Waghmare [PW 5] thereafter visited the spot of

incident. In presence of Panchas, Spot Panchanama [Exh.18] was

drawn. In the meanwhile, inquest was also done over the dead body

vide Inquest Panchanama [Exh.20]. The dead body was sent for

autopsy. The Autopsy Surgeon conducted post-mortem. The Post-

mortem Notes are at Exh.37. According to Post-mortem Report, the

cause of death was "Terminal CRA due to haemorrhagic shock due to

femoral artery damage." Clothes of the deceased were seized under

Seizure Memo [Exh.25]. Under Exh.27, blood samples of the appellant

were taken. Exh.40 is the opinion of the doctor about the weapon in

response to the query raised by the Investigating Officer. After

completion of usual investigations, the Investigating Officer was of the

view that sufficient material is collected for sending the appellant to

the trial and hence he filed charge-sheet in the Court of Law.

04. Since the offence was exclusively triable by the Court of

Sessions, learned Magistrate passed a committal order.

05. Learned Additional Sessions Judge under Exh.7 in Sessions

Case No. 30 of 2011 framed the charge against the appellant for the

offence punishable under Section 302 of Indian Penal Code. The

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appellant abjured his guilt and claimed for trial.

06. In order to bring home guilt of the appellant, the prosecuting

agency examined five witnesses and also relied upon various

documents. Most of the documents during trial were admitted by the

appellant. After a full-fledged trial, the learned Judge of the Court

below was of the view that instead of the charge under Section 302,

Indian Penal Code, the appellant is liable for his conviction of the

offence punishable under Section 304 Part II and accordingly, he was

convicted.

Though the appellant is acquitted of the offence punishable

under Section 302, Indian Penal Code, no further appeal was carried by

the State questioning his acquittal.

07. I heard Mr. Mahesh Rai with Ms. S.B. Khobragade, learned

counsel for the appellant in extenso. Both these counsel appearing for

the appellant strenuously urged before this Court that the evidence of

the prosecution in the present case is too short requiring conviction

under Section 304 Part II, as inflicted by the court below. They

submitted that, in fact, the eye-witnesses in this case are the real

assailants. Another breath of their submission is that eye-witnesses

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are suppressing the genesis and, therefore, benefit of doubt should be

extended in favour of the appellant.

08. Per contra, Mrs. Deshmukh, learned Addl. Public Prosecutor,

supported the judgment of the Trial Court. She submitted that already

a lenient view is taken by the court below. She submitted that the

evidence of the eye-witnesses clearly establishes that the appellant

assaulted the deceased by means of a dangerous weapon and,

therefore, knowledge can be attributed to the appellant that his act

may result into death.

09. Immediate lodging of FIR rules out the possibility of false

implication. The registration of the crime immediately rules out

embellishment in the prosecution case. The occurrence is dated 12 th

November, 2010 at 1900 hours, whereas the First Information Report

was lodged on the very same day at 2015 hours vide General Diary

Reference No. 35/10. From the printed FIR [Exh.17], it is clear that the

Police Station is at a distance of five kilometers away from village

Daroda whereat the incident took place. In that view of the matter, it is

crystal clear that the First Informant has not lost any time to report the

matter immediately to the law enforcing agency.

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10. The evidence of Wasudeo Admane [PW 1], the first

informant, is in consonance with the First Information Report lodged by

him. His evidence would reveal that he is an eye-witness. That he

along with Kisana, the deceased, and other two prosecution witnesses

reached the house of appellant for giving a word of advice, cannot be

faulted, since it was reported to the first informant by his father that

the appellant has used very filthy and abusive language. Even when

these prosecution witnesses along with deceased reached the house of

the appellant, the appellant was continuing using filthy and abusive

language. The version of Wasudeo [PW 1] receives due support from

Yashwant Borkar [PW 2]. This prosecution witness is an independent

person having no animosity against the present appellant. Yashwant

Borkar [PW 2] corroborates PW 1, the first informant, that all of a

sudden, the appellant stepped out of his house with a big weapon like

"Suri" in his hand and without wasting any time, he gave fateful blow

on the person of Kisana, the deceased.

11. Maroti Admane is the Prosecution Witness No.4. His

evidence is also on the same lines as that of first informant and

Yashwant Borkar [PW 2].

12. What is important to note, in so far as these eye-witnesses

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are concerned, is that their evidence has remained unshaken during

their cross-examination. Learned counsel for the appellant were

unable to point out any omission, contradiction or slightest

improvement in their testimony. They have fully supported the

prosecution. Though faintly it is tried to be submitted on behalf of the

appellant that these persons were having a grudge against the

appellant, except such a bald submission, nothing could be pointed out

to substantiate the said claim. Further, Yashwant Borkar [PW 2], as

observed above, is an independent person. The appellant was unable

to point out anything to discredit the evidence of these three

witnesses.

13. Another evidence that is pressed into service by the learned

APP against the appellant is his Memorandum Statement [Exh.43] and

consequent recovery of the weapon and the clothes. I have my own

doubt for placing reliance on that piece of evidence. Exh.43 is a

statement of the appellant recorded during the period when he was in

police custody. The incident is dated 12 th November, 2010 and the

Memorandum Statement in presence of Panchas is recorded on 15 th

November, 2010, thus, after a period of three days. According to the

said statement, he agreed to show the clothes which he had kept on a

rope in the courtyard. The appellant was arrested on 13 th November,

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2010. The clothes were having blood stains. It looks very unnatural

that any person will keep blood-stained clothes at the open space and

those would remain there for a period of three days. In so far as the

recovery at the behest of the appellant in respect of weapon is

concerned, it is clear that the weapon was not recovered from any

secluded place or a place on which the appellant was having exclusive

house.

domain. It was recovered from beneath the straw kept alongside the

Therefore, in my view, the Court cannot attach much

importance to the evidence in the prosecution case in respect of such

recovery.

14. Merely because evidence of the prosecution in respect of

recovery is discarded, that will not render the entire prosecution case

as false one, nor would it be prudent to throw the prosecution case in

the dustbin. The prosecution case is duly proved by the consistent

evidence of the three eye-witnesses. Their evidence inspires

confidence. Their evidence is free from exaggeration, improvements or

contradictions. Therefore, I am of the view that the court below has

not committed any mistake while appreciating the evidence of the eye-

witnesses. Further, the court below has already shown a lenient view

by imposing a punishment of only seven years. Therefore, submission

of the learned counsel Mr. Rai that the quantum of the punishment

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should be reduced cannot be accepted.

15. The net result of the aforesaid discussion leads me to pass

the following order:-

ORDER

Criminal Appeal No. 495 of 2013 is dismissed.

Judge

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