Bombay High Court
Vithoba Mahadeo Jagzape (In Jail) vs The State Of Maharashtra, Through ... on 4 July, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.47/2014
Vithoba Mahadeo Jagzape,
aged 31 years, r/o Wadgaon,
(Police Station), Tq. Dist. Yavatmal. .....APPELLANT
...V E R S U S...
The State of Maharashtra through
PSO Wadgaon (Forest), Tq. Dist.
Yavatmal. ig ...RESPONDENT
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None for the appellant.
Mr. T. A. Mirza, A.P.P. for respondent-State.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :-
JULY 4, 2016
JUDGMENT (Per : V. M. Deshpande, J.)
1. The appellant who was charged for having committed an
offence punishable under Section 302 of the IPC was convicted by
the learned Sessions Judge, Yavatmal in Sessions Trial No.16/2013
on 28.11.2013, consequently he was sentenced to suffer
imprisonment for life and to pay a fine of Rs.500/- in default of
payment of fine to undergo further rigorous imprisonment for five
months. The appellant is questioning his conviction and order of
sentence in this appeal.
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3. Such of the facts, which are necessary for the decision of
this appeal are as under.
The deceased is one Mahesh Mahadeorao Bothale. He is
brother of the first informant Atul (PW1). He set the criminal law
into motion by lodging his oral report (Exh.-19) on 20.09.2012 with
Police Station, Wadgaon Road, Yavatmal against the appellant. The
printed FIR is at Exh.-20.
Dineshchandra Shukla (PW10) recorded the FIR of Atul
Bothale (PW1). He registered the crime vide Crime No.57/2012.
Thereafter, he visited the spot and prepared the scene of occurrence
in presence of two pancha witnesses. The said panchanama was
drawn on 21.09.2012. It is at Exh.-22. He also collected the earth,
both simple as well as smeared with blood, a pair of chappal and one
single chappal vide seizure memo Exh.-23. He visited Civil Hospital,
Yavatmal. There he conducted the inquest on the dead body Exh.-
29. He also recorded statement of witnesses under the arrest memo
Exh.-49. The appellant was arrested. Under the seizure memo Exh.-
50, he collected the blood sample of the appellant. He also seized
the clothes of the accused under seizure memo Exh.-51. When the
appellant/accused was in his custody, he gave memorandum
statement (Exh.-53) and agreed to show the place where he has kept
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the weapon i.e. Mogri (wooden bat). Accordingly, the said was
recovered at the instance of the appellant and the proceedings of the
said were reduced into writing by the panchanama Exh.-54. After
completion of the other usual investigation, charge-sheet was filed
before the Court of law.
The learned J.M.F.C. Yavatmal found that the case is
exclusively triable by the Court of Sessions. Therefore, he committed
the case to the Court of Sessions and after having done so, it was
registered as Sessions Trial No.16/2013.
The charge was framed against the appellant. He denied
the charge and claimed for his trial. In order to bring home the guilt
of the appellant, in all 10 witnesses were examined by the
prosecution. His statement under Section 313 of the Cr.P.C. was also
recorded. His defence was that of false implication.
4. When this matter was called, the learned counsel for the
appellant was absent. We have heard Mr. T. A. Mirza, the learned
A.P.P. He took us through the record and proceedings, notes of
evidence and other material available on record thoroughly. He also
submitted his extensive submissions and prayed that the appeal be
dismissed.
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5. Though Atul (PW1), brother of the deceased set the
criminal law into motion by lodging the FIR Exh.-19, he is not an eye
witness. The incident of assault was communicated to him by
Prashant Asutkar (PW3).
6. The FIR shows that the house of the appellant is adjacent
to the house of the deceased and the wife of the appellant used to
visit the house of the deceased and, therefore, the appellant was
having suspicion that his wife having illicit relations with the
deceased. On that count, prior to 2-3 days of actual incident, a
quarrel has taken place amongst them.
The FIR further proceeds that on 20.09.2012 at 7 O'clock
in the evening when the deceased had been to the flour mill and at
the time of returning, he was assaulted by the appellant.
7. Dr. Trishul Padole (PW8), at the relevant time was
attached to VNGMC & Hospital, Yavatmal. He and his colleague
Dr.Gadge and Dr. Durgawar received the dead body of Mahesh along
with the requisition and inquest form. They conducted the post
mortem on the dead body. They found following external injuries:
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1) Lacerated wound over right parietal region of
length 7 cm X 1 cm X subcutaneous deep. Hair bulbs crushed.
Margin irregular, contused and blood infiltrated.
2) Abrasion over right cheek of size 2 cm x 2 cm
irregular and reddish.
3) Lacerated wound below left eyebrow of size 3 cm X
0.5 cm X subcutaneous deep, horizontally placed, hair bulbs
crushed. Margins irregular contused and blood infiltrated.
4) Lacerated wound over upper lip on right side of 2
cm X 0.5 cm. X subcutaneous deep vertically placed. Margins
irregular, contused and blood infiltrated.
5) Laceration on upper lip, left side of size 1 cm X 1
cm X subcutaneous deep. Vertically placed. Margins
irregular, contused and blood infiltrated.
6) Laceration or right ear of size 1 cm X 0.5 cm X
subcutaneous deep. Vertically placed. Margins irregular,
contused and blood infiltrated.
7) Abrasion over right side of chest upper part of size
4 cm X 3 cm irregular and reddish.
8) Abrasion over right hand dorsally of size 3 cm X 2
cm irregular and reddish.
9) Abrasion over left knee anteriorly middle one third
size 4 X 3 cm irregular and reddish.
10) Abrasion over right leg anteriorly middle one third
size 4 X 3 cm irregular and reddish.
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According to the post mortem which is at Exh.-36, there
were following internal injuries.
1) Fracture of all facial bones at multiple places.
Margin irregular, displaced and blood infiltrated.
2) Fracture of Mandible at symphsis menti Margins
irregular, displaced and blood infiltrated.
From the aforesaid post mortem report, in view of the
evidence of Dr. Trishul Padole, there cannot be any doubt that
Mahesh died of homicidal death.
8. Further question is whether the appellant could be
convicted for the offence punishable under Section 302 of the IPC as
convicted by the Court below or whether for any other lesser offence.
9. There are two eye witnesses in the prosecution case. They
are Prashant (PW3) and Sanjay (PW6). At the relevant time
Prashant was present at the pan shop of one Shrirame for taking
gutkha and after having gutkha, when he was returning back to his
residence, he saw the deceased was assaulted by the appellant by
means of mogari. Similarly, the evidence of Sanjay (PW6) shows
that when he was proceeding from his residence to purchase some
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articles, that time he saw the deceased proceeding towards his house
with flour (dalan). That time, the appellant came there armed with
mogri and assaulted on his head. Thereafter, he again went back.
The evidence of these two eye witnesses has remained
unshaken and there is no reason to disbelieve them.
According to the FIR, the appellant was having suspicion
that the deceased is having illicit relations with his wife and
according to the FIR, prior to 2-3 days of the actual assault, there was
quarrel in between the appellant and the deceased. On that count,
the prosecution has also examined one Ramdas Bothele (PW7). As
per his evidence, on 18.09.2012, he noticed that the appellant was
beating the deceased and when he made enquiry as to why he was
beating Mahesh, that time the appellant quipped that he has spoiled
his matrimonial life and, therefore, he would kill him.
Though from the evidence of Ramdas (PW7) and from the
FIR it appears that the deceased was beaten by the appellant, no
report of the said incident was lodged with Police Station either by
the deceased himself or by the brother of the deceased. Normally,
when even the evidence of Ramdas (PW7) is to be believed that the
appellant has given threat to kill, the matter would have been
reported to the police fearing threat to the life of Mahesh. In that
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view of the matter, we are little hesitant to accept that the appellant
assaulted the deceased prior to 2 days.
10. It is the case of the prosecution itself that the deceased
was having some relations with the wife of the appellant. No person
will easily digest such relations with his wife. Infuriation of a man
due to said is, in our view, not abnormal.
Though, in the post mortem report, 10 injuries are
noticed, those are of lacerations and if the post mortem report is
scanned properly and minutely, we can reach to a safer conclusion
that there was a single blow. Further, neither Prashant (PW3) nor
Sanjay (PW6) are stating in their evidence that the appellant has
repeated the act of giving mogri blows. Further their evidence do not
show that the appellant has taken any undue advantage of the
situation.
11. In that view of the matter, we are of the opinion that the
appellant could be convicted for the offence punishable under
Section 304-I of the IPC. Hence, following order is passed.
The appeal is partly allowed.
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The conviction and sentence of the offence punishable
under Section 302 of the Indian Penal Code awarded to the
appellant-Vithoba Mahadeo Jagzape is set aside and is altered to the
one under Section 304 Part I of the Indian Penal Code and the
appellant is convicted and sentenced to suffer rigorous imprisonment
for ten years.
Rest of the order in respect of fine amount is maintained.
(V. M. Deshpande) (B. R. Gavai)
kahale
