Pandurang S/O Mangaru Kathewar ... vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 3635 Bom

                                           1               APEAL208-14.odt          



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                               NAGPUR BENCH : NAGPUR




                                                   
                           CRIMINAL APPEAL NO.208/2014
                                        ...


    Pandurang s/o Mangaru Kathewar,




                                                  
    Aged about 60 years, Occu: Nil,
    R/o Near Gangaram Chowk,
    Goregaon, Tq. And Distt. Gondia,
    (Convict No.C/8733),
    At present Central Jail, Nagpur.              ..             APPELLANT




                                               
                              ig   .. Versus ..


    Th State of Maharashtra,
                            
    through P.S.O., Goregaon,
    P.S. Goregaon, Tq. & Distt.
    Gondia.                                       ..            RESPONDENT
      


    Mr. R.R. Gour, Advocate (Appointed) for Appellant.
   



    Mrs. G.R. Tiwari, Additional Public Prosecutor for Respondent.

                                   ....





                  CORAM : B.R. Gavai & V.M. Deshpande, JJ.

DATED : July 07, 2016.

ORAL JUDGMENT (per B.R. Gavai, J. )

1. Being aggrieved by the judgment and order passed by

the learned Additional Sessions Judge, Gondia in Sessions Trial

No.85 of 2012 dated 12.08.2013 thereby convicting the appellant

for the offence punishable under Section 302 of the Indian Penal

Code and sentencing him to suffer imprisonment for life and to pay

2 APEAL208-14.odt

fine of Rs.1,000/- and in default of payment of fine to suffer simple

imprisonment for 6 months, the appellant has approached this

Court.

2. The prosecution story as could be gathered from the

material placed on record is thus:-

PW1 Hansaram, who is the brother of the deceased

lodged an oral report with Police Station Goregaon stating therein

that on 06.02.2012 at around 7 to 8 a.m. when he was returning

home after answering the nature's call, he heard the shouts of

deceased Reshamabai as " Dhava-Dhava, Wachwa-Wachwa".

Hence he rushed to the house of Pandurang, the husband of the

deceased. He saw that Pandurang was assaulting Reshmabai with

the head of an axe. Thereafter he picked up a stone grinder ( Pata)

which was kept nearby and assaulted Reshmabai by the same.

After assaulting, Pandurang ran away from the house. Reshmabai

had received injuries on her head and chest due to assault.

Reshmabai was died on the spot. On the basis of the oral report

lodged by PW1 Hansaram below Exh.9, Crime No.8 of 2012 came to

be registered below Exh.10. On the basis of the said first

information report, the investigation was carried out by PW8 Anil

Tompe. On the same day, the accused came to be arrested. At

the conclusion of the investigation, the charge sheet came to be

filed in the Court of Judicial Magistrate First Class, Goregaon. As

the offence was exclusively triable by the Court of Session, the

3 APEAL208-14.odt

same came to be committed to the learned Sessions Judge, Gondia.

3. The learned trial Judge framed the charge for the offence

punishable under Section 302 of the Indian Penal Code. The

accused pleaded not guilty and claimed to be tried. At the

conclusion of the trial, the learned trial Judge passed the order of

conviction and sentenced the appellant as aforesaid. Being

aggrieved thereby, the present appeal.

4.

The learned counsel for the appellant submits that the

learned trial Judge has grossly erred in passing the order of

conviction. He submits that the testimony of the eyewitnesses is

not reliable and trustworthy. He submits that on the basis of such

unreliable evidence, an order of conviction could not have been

rested. The learned counsel, therefore, submits that the appeal

deserves to be allowed by setting aside the order of conviction.

5. The learned APP on the contrary submits that the learned

trial Judge has, on the basis of the proper appreciation of evidence,

recorded an order of conviction which warrants no interference.

6. With the assistance of the learned Additional Public

Prosecutor and the learned counsel for the appellant, we have

scrutinised the entire evidence.

4 APEAL208-14.odt

7. PW1 Hansaram is the first informant. He is the brother of

the deceased. He states in his evidence that on the day of the

incident in the morning at around 7 to 8 a.m. , he was returning

home after answering nature's call. He heard the shouts of

Reshmabai "Dhava-Dhava, Wachwa-Wachwa". Hence he rushed to

the house of Pandurang. At that time, he saw Pandurang

assaulting Reshmabai with the head of an axe. Pandurang

assaulted Reshmabai on her head. Thereafter he picked up a stone

grinder (Pata), which was kept nearby and assaulted Reshmabai by

the same. After assaulting, Pandurang ran away from the house.

Reshmabai received the injury on her head and chest due to

assault by Pandurang. It is to be noted that it has come in the

evidence of this witness that his house and the house of the

accused are opposite to each other. Though this witness has been

thoroughly cross-examined, nothing damaging has come in his

evidence. No doubt that he has admitted in his evidence that he

was having strained relations with Pandurang due to property

issue. However, that itself cannot be a ground to discard his

testimony. It is further to be noted that the first information report

corroborates the version given by the first informant. The first

information report is lodged within a period of 1½ hours from the

time of the incident.

8. PW4 is Premlal Madku Wadgaye. He is the neighbour of

the appellant. He states in his evidence that on 06.02.2012 he was

5 APEAL208-14.odt

in his house. He heard the shouts of deceased Reshmabai at

around 7.30 to 8 a.m. When he rushed to the house Pandurang, he

saw that the accused was assaulting his wife by the handle of

tangiya (small axe). Thereafter the accused picked up a stone

grinder and assaulted Reshmabai by the same. He states that at

that time he shouted and as such other neighbour also gathered

there. Thereafter the accused left his house. On verification,

Reshmabai was found to be dead. Nothing damaging has come in

the evidence of this witness.

9. PW5 Shevantabai is the wife of PW4 Premlal. Her

evidence is also similar to that of PW4. In the cross-examination, a

suggestion is given to this witness that her house is at the distance

of about 5-6 houses from the house of accused, however, she has

denied the same. The witness volunteers that her house is situated

at the distance of one house only from the house of accused. She

has also stated that between her house and the house of the

accused, there is a house of one Pushpa Raut.

10. Pushpa Raut is examined as PW6. She states in her

evidence that on the day of incident when she was in the house, at

around 7 a.m. she heard the shouts of Reshmabai as "Dhava-

Melo". Accordingly she rushed to her house and saw that the

accused was assaulting Reshmabai with the axe. She states that

thereafter she saw the accused assaulting on the chest of the

6 APEAL208-14.odt

deceased by a stone grinder. This witness has also been

thoroughly cross-examined. However, nothing damaging has come

in her evidence.

11. PW7 Panchfulla is the daughter of the deceased and the

appellant. She states that at the time of incident, she was staying

with her mother and her father was residing with her grandmother.

She states that due to quarrel, her mother and father were staying

separately. She states that her father always used to say to her

mother that she is unsuccessful and due to the said things, she

became sick. She states that on the day of incident she had been

to the house of her maternal uncle at Telangkhedi and she received

the information on phone. She further states that before the said

incident, at earlier point also in the year 2011, her father had tried

to throttle the neck of her mother. Nothing damaging has come in

her cross-examination.

12. It could thus be seen that from the evidence of the

daughter of the appellant, it could be seen that he used to quarrel

with the deceased and had also attempted to do her away at

earlier point of time. It could thus be seen that the prosecution

case is supported by four eyewitnesses out of which three are

independent eyewitnesses. The evidence of PW1 is corroborated

by the first information report which is immediate in point of time.

7 APEAL208-14.odt

13. Apart from that the scientific evidence also supports the

prosecution case. The blood group "A" which was the blood group

of the deceased Reshmabai, has been found on the clothes seized

from the accused. The blood group of the accused is "O". No

explanation is coming forward with regard to the said incriminating

circumstance also from the accused.

14. In that view of the matter, we do not find that the

learned trial Judge has committed any error in resting the order of

conviction. The appeal is found to be without merit and as such

dismissed.

15. The fees of the learned counsel appointed for the

appellant are quantified at Rs.5000/-.

          (V.M. Deshpande, J. )                 (B.R. Gavai, J.)
                                         ...


    halwai/p.s.