Bombay High Court
Popat Shivaji Hajare And Anr vs The State Of Maharashtra on 15 December, 2017
Bench: A.M. Badar
211-apeal-617-12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.617 OF 2012
1.Popat Shivaji Hajare
2.Avinash Popat Hajare. ...Appellants
Versus
The State of Maharashtra ...Respondent
Ms.Nasreen Ayubi for the appellants.
Mr. V.V.Gangurde, APP for the State
CORAM: A.M. BADAR, J.
DATED: 15th DECEMBER 2017
ORAL JUDGMENT:
1. This is an appeal by convicted accused Nos.1
and 3 challenging the judgment and order dated 8.6.2012
passed by the learned Additional Sessions Judge, Solapur
convicting both of them for the offence punishable under
Section 307 of the Indian Penal Code and sentencing them to
suffer Rigorous Imprisonment for five years apart from
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payment of fine of Rs.2,000/- and in default directing them to
undergo Simple Imprisonment for two months by each of
them.
2. Heard Ms. Ayubi the learned advocate appearing
for the appellants/accused Nos.1 and 3. By drawing my
attention to the spot panchnama as well as evidence of PW-1
Ashok Sukhdeo Pawar, a panch witness to the spot
panchnama, the learned advocate argued that the recitals in
the spot panchnama are not in tune with the evidence of
prosecution witnesses and there is serious doubt about the
exact spot where the alleged incident took place. This
according to the learned advocate appearing for the
appellants/accused amounts to suppression of genesis of the
prosecution case making it suspect. The learned advocate
further argued that though according to the prosecution case,
two knives are recovered at the instance of the
appellant/accused. There is no description of the knife in the
evidence adduced by the prosecution. The blood was not
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found on the spot of the incident making version of the
prosecution in respect of the incident is doubtful. The learned
advocate further argued that accused persons were not
medically examined by the investigator after their arrest.
Similarly, injured witness PW-5 Sidram Nivrutti Pawar was
also not medically examined. In all probabilities, injuries
found on persons of PW-6 Tulshiram Nivrutti Pawar might
have been caused to him during the course of scuffle between
two groups for which, the present appellants/accused cannot
be made responsible. Therefore, in submission of the learned
advocate appearing for the appellants/accused, it cannot be
said that, the prosecution has established its case beyond all
reasonable doubts.
3. The learned APP supported the impugned
judgment and order of conviction by relying on version of
injured witness PW-6 Tulshiram Nivrutti Pawar, so also eye
witnesses namely, PW-5 Sidram Nivrutti Pawar and PW-9
Ambir Basha Mahiboob Mujawar. The learned APP argued
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that the evidence of PW-10 Dr.Pradeep Sandipan Kasbe
coupled with duly proved papers of medical treatment of
injured PW-6 Tulshiram Nivrutti Pawar unerringly points out
commission of offence punishable under Section 307 of the
Indian Penal Code by the appellants/accused.
4. I have carefully considered the rival submissions
and also perused the Record and Proceedings including
deposition of witnesses as well as documentary evidence
adduced by the prosecution on record.
5. The incident in question, according to the
prosecution case, allegedly took place at about 10.00 a.m. on
23.9.2007 in the field of Janabai on Gunjegaon-Akole Road.
According to the prosecution case, PW-5 Sidram Nivrutti
Pawar and PW-6 Tulshiram Nivrutti Pawar are real brothers.
One of their brother namely, Nagnath Pawar was murdered
by a member of accused party in the year 2007. Janabai is
daughter of said Nagnath Pawar. She was given in marriage to
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Rajendra Hajare. Said Rajendra Hajare died seven years prior
to the incident in question. Thereafter, Janabai filed a suit for
partition and separate possession against the relatives of her
husband i.e. members of the accused party. In the said suit,
she got share in ancestral property of Hajare family. That is
how Janabai Hajare came in possession of the field with a
well, where the incident in question took place. Accused No.1
Popat Shivaji Hajare, Accused No.4 Chandrakant Shivaji
Hajare, accused No.5 Tanaji Shivaji Hajare are real brothers of
deceased Rajendra Hajare-husband of Janabai Hajare.
Accused No.3- Avinash Popat Hajare is son of accused No.1
Popat Shivaji Hajare.
6. According to the prosecution case, as Janabai got
possession of agricultural field, accused persons were annoyed
and they created dispute when Janabai was intending to lay a
water pipe line in her field from the well. Accused persons
opposed that move which resulted in filing of a complaint by
Janabai Hajare with Mandrup Police Station.
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7. It is the case of the prosecution that, Gunjegaon,
where prosecuting and accused party were residing, was
having a Dispute Resolution Committee made for amicable
settlement of disputes between the resident of the village.
The matter went to the said Dispute Resolution Committee of
village Gunjegaon. The President of said Committee invited
both the parties to the field of Janabai Hajare on 23.9.2007
for amicable settlement of the dispute. Other members of the
committee were also invited. That is how members of the
prosecuting party as well as accused persons were present on
the scene of occurrence at about 10.00 a.m on 23.9.2007. The
prosecution averred that all accused persons who were six in
numbers had formed an unlawful assembly with common
object of murdering PW-5 Sidram Pawar as well as PW-6
Tulshiram Pawar. They indulged in rioting, on the scene of
occurrence while prosecuting common object of the assembly.
At that time they were armed with dangerous weapons. The
prosecution further averred that accused persons being
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members of the unlawful assembly caused harm to first
informant Sidram Pawar as well as PW-6 Tulshiram Pawar.
They attempted to commit murder of both these prosecution
witnesses in prosecuting the common object of the assembly.
8. After due trial, the learned Additional Sessions
Judge, Solapur held that the prosecution has failed to prove
that accused persons had formed unlawful assembly with
common object of attempting to commit murder of PW-5
Sidram Pawar and PW-6 Tulshiram Pawar. Rest of the
charges levelled against the accused persons were also held to
be not proved. However, the learned trial Court was pleased
to held that both the appellants/accused Nos.1 and 3 have
independently attempted to commit murder of PW-6
Tulshiram Pawar. That is how by the impugned judgment
and order dated 8.6.2012, the learned Additional Sessions
Judge acquitted the accused persons for the offences
punishable under Sections 307, 147, 148, 323, 504 r/w 149
of the Indian Penal Code but convicted the appellants/accused
211-apeal-617-12.doc
Nos.1 Popat Hajare and appellants/accused No.3 Avinash
Hajare of the offence punishable under Section 307 of the
Indian Penal Code. They both are sentenced to suffer
Rigorous Imprisonment for five years for the said offence
apart from directing them to pay fine of Rs.2,000/- each and
in default to undergo further Simple Imprisonment for two
months.
9. I have carefully considered the submissions
advanced by the learned advocate appearing for the
appellants/accused as well as the learned APP. The State has
chosen not to file appeal in respect of acquittal of accused
persons for the charges levelled against them with the aid of
Section 149 of the Indian Penal Code. Let us therefore
examine whether the learned trial Court has committed any
error in convicting the appellants/accused for the offence
pushable under Section 307 of the Indian Penal Code.
211-apeal-617-12.doc
10. Sofar as the spot of the incident is concerned, the
spot panchnama Exhibit 38 reveals that the incident occurred
at Gunjegaon-Akole road and particularly towards Northern
portion of the road. Evidence of prosecution witnesses and
particularly that of PW-5 Sidram Pawar and PW-6 Tulshiram
Pawar as well as PW-9 Ambir Basha Mahiboob Mujawar goes
to show that field of Janabai Hajare is located at Gunjegaon-
Akole road which is having a well. The said field is on the
Gunjegaon-Akole road and the well is also near that road.
Evidence adduced by the prosecution shows that the scuffle
started at the field of Janabai Hajare where the Dispute
Resolution Committee of the village had decided to meet both
the parties for settlement of dispute. PW-6 Tulshiram Pawar
has stated that the incident took place near the well.
Evidence of PW-12 Harun Papamiyan Mulani-API, who
investigated the crime shows that the place of the incident
was towards Northern side of the road. Thus evidence on
record indicates that the incident took place in between the
field of Janabai and Gunjegaon- Akole road. Evidence of
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prosecution witnesses is clear on this aspect and therefore,
this cannot be a case, where it can be said that the
prosecution has suppressed genesis of the incident making the
prosecution case suspect.
11. According to the prosecution case, murderous
assault was on PW-5 Sidram Pawar as well as PW-6 Tulshiram
Pawar. Sofar as PW-5 Sidram Pawar is concerned, it is not
seen from the evidence of prosecution that he was medically
examined and evidence of this witness also does not show
that this witness had suffered any injury in the incident in
question. Though this witness claimed that accused
Chandrakant Hajare had given a blow of knife upon his chest,
for want of any medical evidence corroborating this version
of PW-5 Sidram Pawar the learned trial Court disbelieved this
part of evidence of PW-5 Sidram Pawar. The learned trial
Court ultimately held that there was murderous assault on
PW-6 Tulshiram Pawar by both the appellants/accused.
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12. It is in the evidence of PW-6 Tulshiram Pawar that
by taking a call of the Dispute Resolution Committee of the
village, he alogwith his brother PW-6 Tulshiram Pawar,
Janabai, Jagannath as well as members of the Dispute
Resolution Committee gathered in the field of Janabai on
23.9.2007. This witness further deposed that accused persons
were also present in the field of Janabai. How the incident in
question took place has also came on record from the version
of PW-6 Tulshiram Pawar. He deposed that appellant/accused
Popat Hajare questioned the propriety of holding the meeting
in the field of Janabai by demanding that the meeting should
be held in his place of residence. PW-6 Tulshiram Hajare has
stated that the appellant/accused No.1 Popat Hajare uttered
that his brother is killed. Then as per version of PW-6
Tulshiram Pawar, the appellant/accused No.1 Popat Hajare
rushed on his person. Appellant/accused No.1 Popat Hajare
then took out a knife concealed in his shirt and gave a blow of
it on his chest. As stated by PW-6 Tulshiram Pawar then
appellant/accused No.3 Avinash Pawar took out a knife from
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his shirt and gave a blow thereon on his stomach. PW-6
Tulshiram Pawar testified that then he was taken to Ashwin
Hospital for medical treatment where he was admitted for one
month. This witness identified seized knives. In cross-
examination this witness has admitted that he was assaulted
by appellant/accused Popat Hajare, appellant/accused
Avinash Hajare as well as accused Chandrakant Hajare by
means of knife. This witness further admitted in his cross-
examination that when appellant/accused Popat Hajare
assaulted him by knife, he did not try to restrain Popat
Hajare. This witness further stated in cross-examination that
blows of knifes were given to him forcefully, causing oozing of
the blood and resulted in unconscious. This material elicited
from the cross-examination of PW-6 Tulshiram Pawar in no
way shakes his testimony in respect of assault on him by the
appellants/accused.
13. PW-9 Ambir Basha Mahiboob Mujawar has
deposed that when members of the Resolution Committee
Kavita Page 12 of
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asked Janabai about her complaint on the spot of the incident,
appellant/accused Popat Hajare asked that the dispute needs
to be resolved at his residential area and thereupon injured
Tulshiram Hajare insisted that the dispute needs to be
resolved in the field itself. As per version of PW-9 Ambir
Basha Mahiboob Mujawar then appellant/accused Popat
rushed on person of PW-6 Tulshiram Pawar, took out a knife
and gave a blow thereof on chest of PW-6 Tulshiram Pawar .
Thereafter, as deposed by PW-9 Ambir Basha Mahiboob
Mujawar, appellant/accused Avinash Hajare took out a knife
and gave a blow thereof on stomach of PW-6 Tulshiram
Pawar. PW-9 Ambir Basha Mahiboob Mujawar has spoken
about presence of PW-6 Sidram Pawar when the incident took
place. There is nothing in cross-examination of this witness to
disbelieve his version in respect of the incident in question.
This witness was not having inimical disposition against
accused persons. This witness has not implicated other
accused persons in the crime in question and that is how they
are acquitted by the learned Trial Court. It is seen from
Kavita Page 13 of
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version of this witness that he is a witness of truth and has not
implicate anybody else in the crime in question except the
assailants. I see no reason to disbelieve version of this
independent eye witness PW-9 Ambir Basha Mahiboob
Mujawar. Presence of PW-5 Sidram Pawar on the scene of
occurrence is vouched by injured PW-6 Tulshiram Pawar as
well as independent eye witness PW-9 Ambir Basha Mahiboob
Mujawar. PW-5 Sideram Pawar appears to have added
embellishment to his version by attributing role of other
accused persons in the crime in question. By sifting truth from
the version of this witness, his evidence to the extent of
implicating appellant/accused No.1 Popat Hajare and
appellant/accused No.3 Avinash Hajare is accepted by the
learned trial Court. Let us see what this witness has stated
about role of the appellants/accused. PW-5 Sidram Pawar has
deposed that on 23.9.2007 he alongwith his brother
Tulshiram and others were present in the field of Janabai.
Members of the dispute Resolution Committee were also
present there so also the accused persons. PW-5 Sidram Pawar
Kavita Page 14 of
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has stated that in the said meeting that appellant/accused
Popat Hajare raised the dispute by stating that meeting should
be held at his residence and then PW-6 Tulshiram Pawar
insisted that the meeting should be held in the field itself.
Then appellants/accused took out a knife and gave blow
thereof on the chest of PW-6 Tulshiram Pawar. As stated by
this witness, appellant/accused Avinash Hajare also took out a
knife from his shirt and gave blow thereof on the stomach of
Tulshiram Pawar. Despite searching cross-examination there
is nothing to disbelieve the version of this witness sofar as role
of the appellants/accused in the crime in question .
14. PW-6 Tulshiram Pawar had suffered injuries in the
incident in question and as such there is no reason to
disbelieve his version regarding the incident. Evidence of this
injured witness is fully corroborated by evidence of PW-10 Dr.
Pradip Kasbe, Medical officer, who at the relevant time was
attached to Ashwin Hospital. PW-10 Dr. Pradeep Kasbe had
examined PW-6 Tulshiram Pawar on 23.9.2007. Following
Kavita Page 15 of
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injuries were found by him on the person of PW-6 Tulshiram
Pawar.
a) Stab injury near left epigastric region below coastal
margin , 5X1 cm, ribs felt on Palpation
b) Stab injury over left iliac fossa, deep with collection
of blood all around the heart.
15. Evidence of PW-10 Dr.Pradeep shows that PW-6
Tulshiram was then operated and thoracotomy was done. He
opined that injuries caused to Tulshiram Pawar were likely to
cause his death, if he was not treated in time. This witness
has duly proved papers of medical treatment of PW-6
Tulshiram Pawar which are at Exhibit 89. Those papers are
corroborating the version of PW-10 Dr.Pradeep Kasbe.
Perusal of papers of medical treatment of PW-6 Tulshiram
Pawar shows that his chest was required to be opened for
performing thoracotomy. Thus, the medical evidence adduced
Kavita Page 16 of
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by the prosecution had fully supported version of PW-6
Tulshiram Pawar in respect of wounds caused to him.
16. Apart from ocular evidence in respect of the
incident in question, the prosecution has adduced evidence
regarding recovery on the basis of confessional statement of
both accused persons. Evidence of PW-2 Dattatraya Bhimrao
Bhagale a panch witness coupled with that of PW-12 Harun
Papamiyan Mulan -investigating officer shows that on the
basis of confessional statement of appellant/accused No.1
Popat Hajare a knife came to be recovered and it was sent for
medical examination. Similarly evidence of PW-3 Mallinath
Appanna Mendkudale a panch witness coupled with evidence
of PW-12 Harun Papamiyan Mulani investigating officer
shows that another knife came to be recovered on the basis of
confessional statement of appellant/accused No.3 Avinash
Hajare. Both those knives were sent for chemical analysis and
report of the chemical analyser at Exhibit 48 shows that those
knives were stained with blood. Thus forensic evidence also
Kavita Page 17 of
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supports case of the prosecution sofar as the
appellants/accused are concerned.
17. Considering the nature of injuries, weapons,
chosen for inflicting the blow and the harm caused by the
force of blow, it needs to be held that the prosecution has
established that the appellants/accused had committed an
attempt to commit murder of injured PW-6 Tulshiram Pawar.
The intention is reflected from the overt act done by them by
using knives and choosing the chest and abdomen of PW-6
Tulshiram Pawar for giving forceful blows of knife.
18. The learned trial Court upon considering entire
evidence available on record has rightly held that both the
appellants/accused guilty of the offfence punishable under
section 307 of the Indian Penal Code. The sentence imposed
on the appellants/accused is also proper and needs no
interference.
Kavita Page 18 of
211-apeal-617-12.doc
19. In the result, the appeal is devoid of merits and
the same is therefore dismissed.
(A.M. BADAR, J )
Kavita Page 19 of
