Hiralal Harijan @ Chamar S/O ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3669 Bom

                                           1               APEAL243-14.odt          



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                               NAGPUR BENCH : NAGPUR




                                                   
                           CRIMINAL APPEAL NO.243/2014
                                        ...

    Hiralal Harijan @ Chamar s/o
    Rammanohar Harijan @ Chamar,




                                                  
    Aged about 60 years,
    Occupation: Labour,
    R/o Gram Khatola, Post Kothi,
    Police Statiton Raghurajnagar,
    District Satana (M.P.), at present




                                               
    Old Samrat Hotel's Building,
    Behind Old Bus Stand, Butibori,
                             
    Tahsil Hingna, Dist. Nagpur.                  ..             APPELLANT


                                   .. Versus ..
                            
    Th State of Maharashtra,
    through Police Station Officer,
    Police Station Buttibori,
      


    Tahsil Hingna, District Nagpur.               ..            RESPONDENT
   



    None for Appellant.
    Mrs. G.R. Tiwari, Additional Public Prosecutor for Respondent.





                                   ....


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

DATED : July 08, 2016.

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

1. Being aggrieved by the judgment and order passed by

the learned Sessions Judge, Nagpur in Sessions Trial No.331 of

2012 dated 09.10.2013 thereby convicting the appellant for the

2 APEAL243-14.odt

offence punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay fine of

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

imprisonment for 6 months and also convicting him for the offence

punishable under Section 324 of the Indian Penal Code and

sentencing him to suffer rigorous imprisonment for six months and

to pay fine of Rs.500/- and in default of payment of fine to suffer

rigorous imprisonment for two months, the appellant has

approached this Court.

2. The prosecution story as could be gathered from the

material placed on record is thus:-

PW1 Anilkumar and his father deceased Purushottam

were working with Iliyaz Shafibhai Shaikh PW3. The accused was

also working with PW3. PW1, his deceased father so also the

accused and other labourers were living in the accommodation

provided by PW3.

3. On 03.03.2012 PW1 Anil went to Police Station Butibori

and lodged an oral report below Exh.7, alleging that after urination

when his father was returning back to his room and when he was

passing from the room of the accused, the accused made some

utterances and assaulted PW1 with the knife. It is the prosecution

case that when his father went to intervene, his father was also

assaulted. As a result of the injuries sustained by the deceased, he

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fell down on the spot. On his cries, co-labourers and neighbours

came to the spot. PW3 was also called at the spot. He arranged

for a vehicle and took Purushottam to the Primary Health Center,

Butibori. However, on the way to the hospital, Purushottam

succumbed to the injuries. Thereafter PW1 went to the Police

Station and lodged an oral report below Exh.7, on the basis of

which the first information report came to be registered vide Crime

No. 47 of 2012 below Exh.8. The investigation was set into

motion. At the conclusion of the investigation, the charge sheet

came to be filed in the Court of Judicial Magistrate First Class,

Nagpur. As the offence was exclusively triable by the Sessions

Judge, the same was committed to the learned Sessions Judge,

Nagpur.

4. Charges were framed for the offence punishable under

Sections 302 and 324 of the Indian Penal Code below Exh.4. 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.

5. Since none appeared for the appellant, in view of the

following observations of Their Lordships of the Apex Court in the

case of K.S. Panduranga .vs. State of Maharashtra reported

in 2013 ALL MR (Cri) 1485 (S.C.):

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"It is not obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal appeal to argue on behalf of

the accused failing which the judgment rendered by the High Court would be absolutely

unsustainable. It is one thing to say that the court should have appointed an amicus curiae and it is another thing to say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if

he deliberately does not appear or shows a negligent attitude in putting his appearance to argue the matter. Thus, the contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its

merits without the presence of the counsel does not deserve acceptance."

we have scrutinized the evidence with the assistance of the learned

Additional Public Prosecutor.

6. The main evidence in the present case would be the

evidence of PW1, the son of the deceased. PW1 states in his

evidence that he, his father as well as the appellant were working

with Illu Seth. He has further stated that all of them were residing

in the rooms provided by said Illu Seth. He further states as under:

That between 12 and 1 a.m. they were sleeping in their

house after dinner. During night, his father had gone to urinate.

He returned by the side of the room of the accused Hiralal.

Accused Hiralal uttered as to why he had come out from the room.

His father stated that he had gone to urinate. Accused Hiralal had

taken knife in his hand. He started beating his father. In the

meantime, the witness rushed there. He tried to catch hold of

5 APEAL243-14.odt

knife. The accused also gave blow of knife to him. He suffered blow

on his arm and also injury at his palm. The accused also gave

blows over head, throat and back of his father. Thereafter the

other persons came there. Dharmesh made a phone call to Shethji.

Shethji arrived there. He carried his father in the vehicle. His

father expired on the way to the hospital. Thereafter they went to

Police Station. In the cross-examination, a suggestion is sought to

be given that it was the said witness who had assaulted his father

and not the appellant. However, we find that the testimony of this

witness has remained unshaken. His testimony is also

corroborated by the first information report which is lodged within

an hour from the incident taking place.

7. PW3 is the employer of the appellant, the deceased as

well as the first informant. He states that he had returned to his

home at around 8 to 8.30 p.m. and at around 11 to 12 during night

hours, he received the phone call from the guard that the quarrel

took place between Purushottam and Hiralal. He rushed to the

spot. Purushottam Verma was lying outside the room. He states

that Anil Verma was present there and he has also suffered injury

over his hand. The testimony of this witness is also corroborated

by the other employees i.e. PW4 Kamlesh and PW5 Dharmendra.

8. Apart from that it is to be noted that PW1 is an injured

witness. He has been medically examined by PW7 Dr. Ankush

6 APEAL243-14.odt

Zode. From the perusal of the evidence of PW7, it is revealed that

PW1 had sustained following injuries:-

"i) Incised wound over distral part of upper left arm of

size 4x2x1 cm.

ii) Incised wound over left thumb of size 4x1x1 cm. Iii) Incised wound over index finger of size 2x1x1 cm.

9. Apart from the ocular testimony of PW1, which is

corroborated by the first information report and the other

witnesses, the scientific evidence i.e. C.A. report also fortify the

prosecution case. The material placed on record would reveal that

the blood group "A" of the first informant Anil is found on the

clothes of the appellant. The appellant has failed to give any

explanation with regard to this incriminating circumstance.

10. In that view of the matter, we find that the appeal is

without merit and as such dismissed.

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





                                             ...


    halwai/p.s.