Somya @ Somlal Lalsingh Ade (In ... vs The State Of Maharashtra, Thr. ...
2016 Latest Caselaw 2713 Bom

                                                        1                          apeal482.14.odt

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH AT NAGPUR




                                                                                        
                                   Criminal Appeal No.482/2014




                                                                
          Somya @ Somla Lalsing Ade,
          aged about 56 years, R/o Ghui,
          Tq. Darwha, Dist. Yavatmal.                            .....APPELLANT
                             ...V E R S U S...




                                                               
         The State of Maharashtra through
         Police Station Officer, P. S. Ladkhed,
         Tq. Darwha, Dist. Yavatmal.                              ...RESPONDENT




                                                
     ------------------------------------------------------------------------------------------------
     Smt. Nisha Gajbhiye, Advocate (Appointed) for the appellant.
                             
     Shri N. B. Jawde, A.P.P. for respondent-State.
     ------------------------------------------------------------------------------------------------
                                CORAM:-  B. R. GAVAI &
                                                                     V. M. DESHPAND E, JJ.
                            
                                DATED :-  JUNE 10, 2016

     J U D G M E N T (Per : V. M. Deshpande, J.)

1. Being aggrieved by judgment and order of conviction

passed in Sessions Trial No.33/2006 by the Additional Sessions Judge,

Darwha, District Yavatmal by which the appellant is convicted for an

offence punishable under Section 302 of the Indian Penal Code and is

directed to suffer imprisonment for life and to pay a fine of Rs.5,000/-

and in default to suffer rigorous imprisonment for three months, the

appellant is before this Court in the present appeal.

2. The facts giving rise to the present appeal are as under:

Purushottam Kamble (PW2) is Police Patil of village Ghui.

On 15.02.2006, Anil Rathod (PW4), and some other persons came to

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his house. Anil Rathod informed him that his father in law is

murdered by the appellant. Purushottam Kamble went to the spot.

People were gathered there and body of deceased Parashram was

lying in a pool of blood. He informed the fact to the police. The

report was lodged by Anil Rathod (PW4). The said report is at

Exh.-43. The Investigating Officer Sanjay Dahake (PW11) registered

the crime vide Crime No. 21/2006. The printed FIR is at Exh.-44.

According to the FIR, the daughter of Namdeo Rathod was

examined by the prosecution as its witness. Sunu Rathod (PW6) came

to the house of the first informant and disclosed the fact to the first

informant about the assault on the deceased by the appellant. On

getting the information from her about the place, he along with his

wife came to the spot. There dead body of his father in law Parashram

was lying. It was informed to him there by Namdeo that due to the

quarrel, the deceased was done to death by the appellant.

During the course of investigation, inquest was done on the

dead body vide inquest panchanama Exh.-33 and from the spot, the

Investigating Officer seized stone, earth; both blood mixed as well as

simple and one chappal under seizure memo Exh.-32. He also seized

the clothes of the appellant stained with blood in presence of pancha

Uttam Amle (PW3) and also the clothes of the deceased under seizure

memo Exh.-39. The dead body was also sent for post mortem.

3 apeal482.14.odt

After completion of the investigation, the charge-sheet was filed in the

Court of Judicial Magistrate First Class, Darwha.

The learned Magistrate passed the order of committal since

the case was exclusively triable by the Court of Sessions.

The learned Additional District Judge, Darwha framed the

charge against the appellant that on 15.02.2006 at village Ghui, he

committed the murder of Parashram, which is punishable under

Section 302 of the IPC. The appellant denied the charge and claimed

for his trial. In order to bring home the guilt of the appellant, the

prosecution examined in all 11 witnesses and also relied on various

documents during the course of the trial.

3. We have heard Smt. Nisha Gajbhiye, who was appointed by

the Legal Aid committee for providing legal assistance to the appellant

and Shri N. B. Jawde, learned A.P.P. for the State.

4. The only submission made by the learned counsel for the

appellant was that the eye witness Sonu (PW6) and Kamalbai Rathod

(PW7) are the interested witnesses being relatives of the deceased

and, therefore, their testimony cannot be considered.

We are afraid that such a submission of the learned counsel

for the appellant has any merit. Merely because the witnesses

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are close to the deceased or his relatives, that itself cannot be the

disqualification for consideration of their evidence for securing the

conviction of the accused. If the evidence of the said witness inspires

confidence, found to be natural and free from exaggerations, it would

be safe on the part of the Court to accept the said testimony.

5. Dr. Hemant Kukde has conducted post mortem on the dead

body of Parashram when he was attached to Shri Vasantrao Naik

Government Medical College and Hospital, Yavatmal. He found

following external injuries on his dead body.

"(i) Vertical lacerated wound over occipital protuberance of size 4 X 1 cm X bone deep with

comminuted fracture of underlying bone, blood oozing out.

(ii) Abrasion over forehead on left side, size 3.5 cm. above left eyebrow, size 4 X 2 cm. reddish.

(iii) Abrasion 3 cm. above and right to injury no. 2,

2.5 X 1.5 cm. reddish.

(iv) Contused abrasion at lateral end of right eye. 2 X 1 cm. reddish.

(v) Abrasion at middle of nose. 0.9 X 0.6 cm. Reddish.

(vi) Contused abrasion on postero lateral aspect of neck on left side, 3.5 X 0.5 cm. reddish.

(vii) Abrasion below inferior angle of left scapula 1 X 0.2 cm. reddish.

5 apeal482.14.odt

Those injuries were ante mortem. On internal examination in head under scalp hematoma present over

occipital area of size 11 X 7 cm. X 0.5 cm. dark red. Skull

- Fissured fracture middle of frontal bone present. Extending to sagittal sutural fracture to communited fracture of occipital bone into multiple pieces with

lamodoid sutural fracture extending anteriorly with fracture of sphenoid bone and orbital plate of frontal bone on left side. Separating base of skull into two halves.

Membrane - dura torn over occipital area, extra dura

hemorrhage present over occipital and left parietal area. Sub dural hemorrhage present over both cerebral

hemisphere. Sub arachnoid present over both cerebral hemisphere.

Brain - Contusion present over both occipital lobe,

temporal lobe on left side. Left frontal lobe and left

parietal lobe."

On internal examination of thorax, he noticed following

internal injuries:

"On internal examination of Thorax - Fracture of sternum present at level of 3rd intercostal space with hematoma of

size 5 X 4 cm X 0.5 cm. with hematoma present inner aspect of sternum. Fracture ribs 2 to 5 on right side of anteriorly ribs 2 to 4 and posteriorly ribs 3 and 4 on left side with infiltration around fracture."

He proved the post mortem notes which were drawn by

him while conducting the post mortem. They are at Exh.-62.

6 apeal482.14.odt

In view of the evidence of Dr. Hemant Kukde and the Post

Moretm Report Exh.-62, it is clear that the deceased met with

homicidal death.

6. Once the Court reaches to the conclusion about the nature

of death, the next question to be answered is as to whether the

prosecution has proved that the appellant is the author of the injuries

sustained by the victim.

As observed in the preceding paragraphs, there are two eye

witnesses in the prosecution case. They are; Sonu Rathod (PW6) and

Kamalbai Rathod (PW7). Sonu Rathod (PW6) deposed in her

evidence that at the material time, the deceased Parashram and her

maternal uncle were sitting near the heap of sand and the appellant

Somya was standing near him. This prosecution witness that time was

standing in front of her house. Though a suggestion is given to this

prosecution witness that her house is situated about 200 to 250 ft.

away from the spot of incident and the spot of incident is not visible

from her house, the same is stoutly denied by her. Sonu deposed in

her evidence that accused shoved the head of her maternal uncle due

to which her uncle fell down on back facing to sky and, thereafter

accused pick up a stone and assaulted on his stomach. Sonu also

deposed that Parashram was also assaulted on his head. However,

7 apeal482.14.odt

prior to that she raised hue and cry due to which her mother Kamalbai

(PW7) came out of her house.

Kamalbai Rathod corroborates that after hearing hue and

cry of Sonu, when she stepped out of her house, she saw the appellant

making assault on the head of Parashram.

7. The evidence of these two witnesses is rightly appreciated

by the Court below. Their evidence is free from contradictions. The

omissions as appearing in their evidence are minor in nature,

however, their evidence to the actual assault on stomach and head is

found to be intact.

Further, the evidence of Sonu (PW6) that her maternal

uncle was assaulted on stomach is also supported by medical evidence

in view of the internal injuries found on the thorax.

Though, Sonu has used the word 'stomach', by that her

evidence cannot be brushed aside in view of the internal injuries.

Both Sonu and Kamalbai deposed before the Court about the assault

by the stone on the head of the deceased.

8. The Investigating Officer sent the muddemal property to

the Chemical Analyser under requisition Exh.-76. By the said clothes

of the deceased, clothes of the appellant, stone, which was seized

8 apeal482.14.odt

from the spot in presence of the pancha witnesses were sent for

chemical analysis.

As per the Chemical Analyser's report Exh.81, the blood

group of the deceased Parashram was determined as "B". The

Chemical Analyser's report Exh.-83, discloses that the stone was

having blood of group "B" whereas the clothes of the appellant were

stained with human blood. When this incriminating circumstance was

put by the Court below to the appellant when he was examined under

Section 313 of the Cr. P. C. he was unable to give any explanation

regarding the presence of human blood on his clothes.

9. In view of the consistent eye witness account, which is duly

corroborated by Exh.83, the Chemical Analyser's report, we see no

reason to upset the well reasoned finding given by the Court below

after re-appreciating the case of the prosecution. Hence, we pass the

following order.

                                   ORDER





     (i)            The appeal is dismissed.
     (ii)           the   fees   for   the   appointed   counsel   are   quantified   at
     Rs.5,000/-"


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


     kahale