Vajareya Sheleya Pawra vs The State Of Maharashtra And Anr
2017 Latest Caselaw 5866 Bom

                                             1                                CrA-42-02-I

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                  CRIMINAL APPEAL NO. 42 OF 2002

 Vazareya s/o. Sheleya Pawra,
 Age 35 Years, Occu. Agri.,
 R/o. Shelkuicha, Chikhaltipada,
 Tq. Dhadgaon, Dist.Nandurbar.                          ..       Appellant/Accused

          Versus

 1. The State of Maharashtra
 2. Bonda s/o. Gulab Pawra,
    Age 52 years, Occu. Agri.,
    R/o. Chikhaltipada, Tq.
    Akrani (Dhadgaon), Dist.
    Nandurbar.                                          ..       Respondents.

                                   ...
            Mr. C.R.Deshpande, Advocate for the appellant.
          Mr. A.P.Basarkar, APP for the respondent No.1 State.
                                   ...

                           CORAM : K.K. SONAWANE, J.

RESERVED ON : 06TH JUNE, 2017.

PRONOUNCED ON : 11TH AUGUST, 2017

J U D G M E N T :-

This appeal is directed against the impugned

Judgment and order of conviction of the appellant-original

accused under Section 307 of the Indian Penal Code (Hereinafter,

referred to as 'IPC' for short) and resultant sentence of Rigorous

Imprisonment for five years and to pay fine of Rs. 2,000/-, in

default, to suffer further simple imprisonment for three months

passed in Sessions Case No. 259 of 1998 by the learned

2 CrA-42-02-I

Additional Sessions Judge, Shahada, Dist. Dhule. The appellant-

convict preferred the present appeal taking recourse of Section

374(4) of the Code of Criminal Procedure, 1973 (Hereinafter,

referred to as "Cr.P.C.").

2. The genesis of the prosecution case culled-out, in

brief, as under :-

The victim Bonda Gulab Pawra was the resident of

Chikhaltipada, Tahsil Akrani (Dhadgaon), District Nandurbar and

eking livelihood by doing the agricultural work. It has been

alleged that prior to one and half months of the incident, the

mother of Bonda had been to rivulet for taking bath. She

removed her silver ornaments (Veleya, Kada) and kept it aside

while taking the bath. Thereafter, she returned to home without

collecting the silver ornaments kept aside at the time of bath.

When she realized about missing of silver ornaments, she rushed

to rivulet. But, there were no any ornaments found at that place.

She recollected that the father of accused, namely, Sheleya

Pawara was passing from the rivulet at the relevant time.

Therefore, victim Bonda and her mother had been to the father of

accused namely Shelya Pawra, for inquiry about the missing

silver ornaments. But, the accused Vajareya s/o. Shelya Pawara,

who was present, there reprimanded the victim Bonda that when

his father did not take the silver ornaments of his mother, for

what reason he would venture to defame him. The accused

3 CrA-42-02-I

hurled abuses and gave threat of life to the complainant. But,

the dispute came to be settled amicably.

3. Thereafter, on the day of incident i.e. 9 th March,

1993, in the night at about 10.00 to 11.00 p.m., the complainant

and his sisters, namely, Ladkibai and Kamibai enjoyed the dinner

and went to the house of one Malsing Pawara for celebrating the

Holi festival. The other villagers were also present at the spot for

jubilation. They were dancing by beating the drums. When the

victim Bonda was enjoying the celebration of Holi festival, the

accused Vanjareya arrived near him and exhorted that his father

had not taken the silver ornaments of mother of complainant and

despite the same he caused damage to his reputation, therefore,

he would not spare him. The accused Vanjareya picked up the

weapon axe from some distance and dealt a blow on the head of

victim Bonda inflicting fatal bleeding injuries. The victim Bonda

sprawled on the ground and became unconscious. The onlookers

thronged at the spot. The injured Bonda was escorted to Primary

Health Center for medical treatment. The information about the

injured victim Bonda admitted in the hospital for bleeding injury,

was passed on to the Police of Dhadgaon Police Station. Police

rushed to the Primary Health Center, Dhadgaon and recorded the

statement of injured Bonda for the cause of his bleeding injuries.

The victim Bonda blamed the accused for his injuries.

4. Pursuant to the First Information Report (FIR) of

4 CrA-42-02-I

victim Bonda, the concerned Police registered the Crime No. 14

of 1993 and set the penal law in motion. Investigation Officer

(I.O.) visited to the spot and drawn the panchnama of scene of

occurrence. I.O. collected blood stained axe, the earth smeared

with blood as well as simple earth from the spot. I.O. recorded

statements of witnesses acquainted with the facts of the case.

He picked up accused for the sake of investigation. During the

custodial interrogation, accused confessed about the crime and

shown willingness to produce his blood stained cloths, which were

concealed in his house. Accordingly, I.O. prepared memorandum

statement of the accused in presence of panchas and proceeded

to the house of accused with panchas. The accused produced his

blood stains cloths in presence of panchas. I.O. recovered the

same under panchnama. The seized articles were sent to the

Forensic Laboratory for analysis. I.O. collected C.A. reports,

injury certificate, etc. After completion of investigation, I.O. filed

charge-sheet against the accused before the learned Magistrate,

Dhadgaon for further process.

5. The offence levelled against the accused-appellant

was exclusively triable by the Court of Sessions, therefore,

learned Magistrate wisely transmitted the proceedings to the

Court of Sessions at Shahada for trial of the accused-appellant,

within ambit of law. After procedural formalities, learned

Additional Sessions Judge framed the charge against the accused

5 CrA-42-02-I

for the offence punishable under section 307 of the I.P.C. The

accused denied the charge and pleaded not guilty. He claimed

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

prosecution examined in all seven witnesses in this case and

closed the evidence. The learned trial Court recorded statement

of the accused under Section 313 of the Cr.P.C. and after hearing

both sides arrived at the conclusion that, appellant-accused is

guilty for the offence punishable under Section 307 of the I.P.C.

Therefore, learned trial Court passed the impugned Judgment

and order of conviction and resultant sentence as indicated

above. The impugned Judgment and order of conviction and

sentence is the subject-matter of the present appeal.

6. The learned counsel for the appellant-accused vehemently

submitted that, the impugned Judgment and order of the learned

trial Court is erroneous, illegal and contrary to the facts and

circumstances of the present case. The learned trial Court did

not appreciate the attending circumstances on record in its

proper perspective and arrived at the incorrect decision of guilt of

the accused. There are material discrepancies in the evidence of

prosecution witnesses in this case. The learned counsel Shri.

Deshpande explained that the PW-2 victim Bonda and his sister

PW-3 Ladkibai stated that, the accused assaulted the victim

Bonda by means of axe, but the injury certificate produced on

record by PW-5 Dr. Patil shows that, the victim Bonda received

6 CrA-42-02-I

CLW on left occipital region resulting fracture of skull. According

to the learned counsel Shri. Deshpande, the weapon axe

recovered in this case was sharp edged weapon and the injury of

CLW is not possible after assaulting the victim Bonda with the

weapon axe. He submitted that it would unjust and improper to

draw inference that the accused instead of causing injuries to the

victim by sharp blade of the axe used only it's blunt side. He

relied upon the observations of Their Lordship of Apex Court in

the case of Bhola Singh Vs. State of Punjab1 He further

assailed that the evidence of so-called eye witnesses are cryptic

and slender in nature. They failed to describe overtact of the

accused in detail at the time of assault. The PW-4 Jahrya Pawara

was not the eye witness, but in view of his cross-examination, he

reached at the spot later-on after occurrence of the incident.

There are vital discrepancies in the evidence of victim Bonda and

his sister PW-3 Ladkibai. According to learned counsel, the

evidence of eye-witnesses appears to be doubtful and incredulous

one. Their evidence is suspicious and consequently, it is

imperative to absolve the accused for the charges pitted against

him. The learned counsel Shri. Deshpande also kept reliance on

the expositions of law delineated by this Court in the case of

Hupa @ Hupsing Wangarya Bhil Vs. State of Maharashtra 2.

The learned counsel Shri. Deshpande for the appellant explained

1 AIR 1999 Supreme Court 767.

2 2001 (3) Mah LR 629.

7 CrA-42-02-I

the attending circumstances on record in detail and submitted

that, the entire evidence adduced on record is not sufficient to

nail the accused in this case. The conviction of the accused

recorded by the learned trial Court is erroneous, illegal and

perverse in nature. Therefore, he prayed to quash and set aside

the findings of the conviction recorded by the learned trial Court

and exonerate the appellant-accused by allowing the present

appeal.

7. In refutal, the learned APP raised the objection and

submitted that the learned trial Court appreciated the entire facts

and circumstances in proper manner. The injury certificate

(Exh.67) demonstrates that, there was a serious injury caused to

the victim Bonda on the vital part of his head. The PW-5 Dr. Patil

deposed that the victim Bonda was admitted in Civil Hospital,

Dhule for medical treatment on 10-03-1993 and he was

discharged on 25-05-1993 from the hospital. It is evident from

the circumstances that the injuries inflicted to the victim Bonda

was serious and fatal in nature. The PW-2 victim Bonda blamed

the accused for his head injury. The PW-3 Ladkibai and PW-4

Jaharya Pawara are the eye witnesses of the incident. They

stated about the overtact of the accused inflicting bleeding injury

by the accused on the head of victim Bonda. According to

learned prosecutor, prosecution has proved the case beyond all

reasonable doubts against the accused. He submits that, the

8 CrA-42-02-I

appellant-accused was the author of injury received to victim

Bonda, and therefore, the findings of learned trial Court about

the guilt of accused-appellant needs no interference.

8. I have heard the submissions canvased on behalf of both

side at length. I have also delved into the record and

proceedings of the Sessions Case No. 259 of 1998 as well as

findings recorded by the learned trial Court. I find the arguments

advanced on behalf of learned counsel Shri. Deshpande for the

appellant-accused, much more sustainable and considerable one.

Admittedly, the PW-2 victim Bonda Pawara and his sisters had

been to the spot of incident for celebration of Holi festival during

the relevant night of the incident on 10-03-1993. It has been

alleged that, the accused taking umbrage of the incident of

defamation of his father, on account of missing of silver

ornaments of mother of victim Bonda, assaulted the victim Bonda

by means of axe and inflicted fatal head injuries to him.

9. The PW-5 Dr. Patil deposed that, on 10-03-2013, he was on

duty as Chief Medical Officer (CMO) in the Civil Hospital, Dhule.

The injured Bonda was referred by the P.H.C. Dhadgaon for

medical treatment. He clinically examined him and noticed

fracture of skull as well as CLW on left occipital region of size

7cm x 1½cm x 1 cm. He further stated that, the injured victim

Bonda was hospitalized since 10-03-1993 to 25-05-1993 for

9 CrA-42-02-I

medical treatment of his head injury. According to PW-5 Dr. Patil,

the CLW on occipital region as well as fracture to skull to victim

Bonda would be caused by hard and blunt object. He issued

medical certificate (Exh.17) and same is produced on record.

10. According to prosecution, the accused dealt a blow of axe

on the head of victim Bonda and inflicted fatal injury to him. It

has been alleged that, the accused was author of the injuries

sustained to victim Bonda. In order to bring home guilt of the

accused, prosecution examined PW-2 Bonda on record. He

deposed that, in the night of 09-03-1993 after dinner he

accompanied with sister Ladkibai and Kamibai went to the house

of Malsing Pawara at Shelkuicha to celebrate Holi festival. In the

wee hours of the night at about 4.00 a.m. accused-appellant

came to him and asked why he had defamed his father.

Thereafter, he took out the axe from bed-sheet (Chadar) and

inflicted blow on his head. He sprawled on the ground. He was

escorted to the Dhadgaon Police Station and later on admitted in

the Government Hospital at Dhule. The Police of Dhadgaon

Police Station recorded his statement and obtained the thumb

impression on it. The F.I.R. is at (Exh.12).

11. In the cross-examination, PW-2 victim Bonda conceded that

there were 2000 to 3000 denizens thronged at the scene of

occurrence for celebrating Holi festival. They were dancing

10 CrA-42-02-I

around the bonfire. His sisters Ladkibai and Kamibai were also

present near him. Suddenly, accused Vazareya came from back

side and gave a blow of axe on his head, and thereafter, he fallen

on the ground and became unconscious. In the cross-

examination, it has also brought on record that, he had not

stated in his F.I.R. that when he was in a sitting gesture that

time accused gave a blow of axe on his head.

12. In order to corroborate the version of victim Bonda,

prosecution examined PW-3 Ladkibai, alleged eye witness of the

incident. She deposed that, at the relevant time of incident at

about 4.00 a.m. accused came near them and said why you

defame his father and thereafter he gave the blow of axe on the

head of her brother Bonda. She further testified that there was a

bed-sheet (Chadar) on the person of accused Vazareya at the

time of incident. In the cross-examination she stated that, when

they were sitting on the ground, that time accused Vazareya

came there from backside and gave blow of axe on the head of

brother Bonda and ran away from the spot. She denied about

any conversation in between accused Vazareya and victim Bonda,

at the scene of occurrence at the time of assault.

13. The intense scrutiny of the ocular evidence of PW-2 victim

Bonda and his sister PW-3 Ladakibai, both star witnesses of the

prosecution, reflects that, there are vital discrepancies and

11 CrA-42-02-I

contradiction in their evidence in regard to the actual overtact of

the accused Vazareya. While PW-2 Bonda stated that, when they

were standing and enjoying the celebration of Holi festival, that

time accused came there and exhorted on account of defamation

of his father for missing of silver ornaments. Thereafter, accused

dealt a blow of axe on the head of victim Bonda. PW-3 Ladkibai

stated that there was no conversation in between the accused

and his brother PW-2 Bonda at the time of alleged incident of

assault and accused dealt a blow of axe when they were in sitting

gesture. These circumstances created clouds of doubt in the

credibility and veracity of the evidence of these witnesses.

14. The prosecution has made abortive attempt to examine

PW-4 Jayarya Pawara as one of the eye witness of the incident.

According to prosecution, he was also present at the scene of

occurrence for celebration of Holi festival. He deposed that,

accused Vazareya dealt a blow of axe on the head of the victim

Bonda and escaped from the spot. However, in the cross-

examination, he testified that, when the jubilants were dancing

by beating drums, for celebration of Holi festival, he saw

denizens congregated at the spot, and thereafter, he rushed to

them and saw that, victim Bonda was lying on the ground with

injuries to his head. Thereafter, victim Bonda was escorted to the

hospital for medical treatment. This statement of PW-4 Jayarya

Pawara demonstrates that he did not receive any opportunity to

12 CrA-42-02-I

watch the spectacle of actual assault on the victim Bonda with

deadly weapon of axe by the accused. But, he reached at the

scene of occurrence later on after occurrence of incident and saw

the victim Bonda while sprawled on the ground. Therefore, it

would hard to believe that the PW-4 Jayarya Pawara was the eye

witness of the incident. It would unsafe to act upon the evidence

of PW-4 for any adverse inference against the accused.

15. As referred supra, there are material discrepancies in the

evidence of PW-2 Bonda and his sister PW-3 Ladakibai. Their

evidence appears cryptic and slender in nature. They did not

describe the overtact of the accused in detail. In contrast, it

seems that, the alleged incident sustaining bleeding injury to

head of the victim Bonda was occurred in the wee-hours of night

on 09-03-1997 at about 10.00 a.m. and at that time the

residents of village congregated for Holy festival. There are

weapons axe, Dhareya, sticks in the hands of residents while

dancing and beating the drums, etc. According to PW-3

Ladakibai, there was a bed-sheet (Chadar) on the person of

assailant. In such circumstances, possibility of mistaken identity

of accused being assailant cannot be ruled out. More over, it is

also preposterous to appreciate that when the accused used the

leathal weapon axe for his attempt to commit murder of the

PW-2 Bonda on account of tarnishing the reputation of his father,

then for what reason he used butt-end of the axe instead of

13 CrA-42-02-I

sharp edge side of the weapon. The PW-5 Dr. Patil stated about

the injuries sustained to victim Bonda by hard and blunt object

and not by sharp edged weapon. In such circumstances, it is

also doubtful that the weapon axe was being used for assaulting

the victim PW-2 Bonda in this case. The motive for commission

of crime was also found very weak and not probable. It has been

alleged that the accused taking umbrage of act of defamation on

account of missing of silver ornaments attacked the victim

Bonda. But, it cannot be ignored that, the alleged incident of

missing of silver ornaments was occurred prior to one and half

months of the murderous attack. Moreover, the victim Bonda

stated that the dispute was settled amicably in the village. In

view of the same, it would strange to appreciate that accused

would attack victim Bonda on that count of defamation of his

father.

16. The scrutiny of the over all evidence adduced on record on

behalf of prosecution demonstrate that, the prosecution failed to

prove charges against the accused beyond all reasonable doubts.

It is highly improbable that when the accused was armed with

sharp edge weapon, he used butt-end or blunt side of the axe for

causing injuries to victim PW-2 Bonda. The evidence of the PW-4

Jahareya Pawara appears incredulous and doubtful to consider

being an eye witness of the incident. There is no any

independent witness available in this case. The evidence of

14 CrA-42-02-I

interested witnesses i.e. PW-2 Bonda and PW-3 Ladakibai is on

record, but the material discrepancies caused in their evidence

divested the gravity of the allegations nurtured on behalf of the

prosecution against the accused. In such circumstances, I am of

the opinion that the prosecution failed to prove the complicity of

the accused in this crime beyond all reasonable doubt. The

findings of the conviction recorded by the learned trial Court are

erroneous, illegal and perverse in nature. The evidence of

prosecution witnesses are dubious and not free from blemish.

The prosecution evidence do not inspire confidence. There is no

impediment to allow the appeal to exonerate the accused from

the charges pitted against him.

17. In the result, appeal stands allowed. The impugned

conviction and resultant sentence imposed on accused deserves

to be upset and accordingly set aside and quashed. The accused

is hereby acquitted for the offence punishable under Section 307

of the Indian Penal Code. The accused is on bail. His bail bonds

shall stand cancelled. The fine amount, if any, deposited on the

part of the accused be refunded to him.

18. In above terms, the appeal stands disposed of

accordingly.

[ K. K. SONAWANE ] JUDGE rrd.