Bombay High Court

Dattu Manji Pagi vs The State Of Maharashra on 8 June, 2017

Bench: V.K. Tahilramani

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   CRIMINAL APPELLATE JURISDICTION

                CRIMINAL APPEAL NO.967 OF 2011


Shri Dattu Manji Pagi
Age:39 years, Occ: Agriculturist,
Indian Inhabitant, Residing at:
Sawade Pagi Pada,
Vill & Tal - Vikramgad, Dist. Thane,
(At present in Central Jail, Thane)                    ......Appellant

V/s.

The State of Maharashtra                             .......Respondent


Dr. Yug Mohit Chaudhary with Ms. Payoshi Roy , Advocates
for Appellant.
Mrs. G.P.Mulekar, APP for Respondent-State.


                          CORAM : SMT. V.K. TAHILRAMANI, &
                                  SANDEEP K. SHINDE, JJ.

DATE : 8th June, 2017.

ORAL JUDGMENT : (Per V.K.TAHILRAMANI, J.)

The Appellant/Original Accused has preferred

this appeal against the judgement and order dated

30.6.2011 passed by the District Judge-1 & Additional

Sessions Judge, Thane in Sessions Case No.168 of 2010. By

the said judgment and order, the learned Sessions Judge

convicted the Appellant under Section 302 of the IPC and Shivgan

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sentenced the Appellant to undergo rigorous imprisonment

for life and to pay a fine of Rs.1,000/- in default to undergo

further rigorous imprisonment for three months.

2 The prosecution case briefly stated is as under:

The deceased Shidwa Pagi was the husband of

P.W.8-Sita. The first informant P.W.1-Dama Nago Pagi is

younger brother of the deceased Shidwa. The Appellant is

nephew of the deceased Shidwa. The deceased, Appellant

and witnesses were residents of Village: Sawade in District:

Thane.

According to the Appellant, land on which the

deceased Shidwa was residing was owned by the Appellant

and, therefore, he was asking Shidwa to vacate the said

land. The incident took place on 11.12.2009 at about 6

a.m. At that time, the first informant P.W.1-Dama was

collecting paddy. The deceased Shidwa was also collecting

paddy and he was going to load the same in a bullock-cart.

At that time , the Appellant came there. He was armed with

bamboo stick in his hand. The Appellant asked Shidwa to

vacate the land. The Appellant then assaulted Shidwa on

his back and head. Shidwa fell down. This incident was

Shivgan

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witnessed by P.W.5-Vishnu Laxman Bhad and P.W.8-Sita

Shidwa Pagi. Then P.W.1-Dama, P.W.5-Vishnu and P.W.8-Sita

lifted Shidwa and took him inside the house. They were

trying to make Shidwa drink water. However, within short

time, Shidwa expired. P.W.1-Dama lodged FIR, thereafter,

investigation commenced. Dead body of Shidwa was sent

for post-mortem. The Appellant came to be arrested. After

completion of investigation, charge-sheet came to be filed.

In due course, the case was committed to the Court of

Sessions.

3 Charge came to be framed against the Appellant

under Section 302, 504 and 427 of the IPC. The Appellant

pleaded not guilty to the said charge and claimed to be

tried. The defence of the Appellant is that of total denial

and false implication. After going through the evidence

adduced in this case, the learned Additional Sessions

Judge, Thane convicted and sentenced the Appellant as

stated in paragraph 1 above, hence this Appeal.

4 We have heard the learned counsel for the

Appellant and the learned APP for the State. We have

carefully considered their submissions, judgment and order

Shivgan

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passed by the learned Additional Sessions Judge, Thane

and the evidence in this case. After carefully considering

the matter, we are of the opinion for the below mentioned

reasons that the Appellant assaulted Shidwa with bamboo

stick which led to the death of Shidwa.

5 The conviction of the Appellant is mainly based

on the evidence of three eye witnesses, i.e., P.W.1-Dama

Nago Pagi, P.W.5-Vishnu Laxman Bhad and P.W.8-Sita

Shidwa Pagi. P.W.1-Dama was the younger brother of

deceased Shidwa. He is the first informant in the present

case. P.W.5-Vishnu was residing in the same village. P.W.8-

Sita was wife of the deceased Shidwa. P.W.1-Dama has

stated that the Appellant was nephew of the deceased

Shidwa. The Appellant was telling Shidwa that the land on

which Shidwa was residing was owned by him and,

therefore, Shidwa should vacate the said land. On the day

of incident, at about 6 a.m., P.W.1-Dama was collecting

paddy. The deceased Shidwa was also collecting paddy and

he was going to load the same in a cart. At that time , the

Appellant came there. He was armed with bamboo stick in

his hand. The Appellant asked Shidwa to vacate the land.

Shivgan

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The Appellant then assaulted Shidwa on his back and head.

Shidwa fell down. This incident was witnessed by P.W.5-

Vishnu Laxman Bhad and P.W.8-Sita Shidwa Pagi. Then

P.W.1-Dama, P.W.5-Vishnu and P.W.8-Sita lifted Shidwa and

took him inside the house. They were trying to make

Shidwa drink water. However, within short time, Shidwa

expired.

6 P.W.5-Vishnu is an independent witness. He was

also residing in Village: Sawde. He has stated that on

10.12.2009, the deceased Shidwa had come to him to ask

for his bullock-cart on hire basis and on the next day at

about 6 a.m. P.W.5-Vishnu went to the house of Shidwa with

bullock-cart. P.W.5-Vishnu found heap of paddy lying in the

court-yard of Shidwa. At that time, the Appellant came

there with a bamboo stick and assaulted Shidwa. Due to

which Shidwa fell down. Then P.W.5-Vishnu, P.W.1-Dama

and P.W.8-Sita wife of Shidwa took Shidwa inside his house

and tried to make him drink water.

7 P.W.8-Sita is wife of deceased Shidwa. She has

stated that the Appellant was nephew of the deceased and

he was residing near their house. The Appellant was

Shivgan

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insisting that Shidwa should leave the house and on this

ground, there used to be quarrel between the Appellant

and the deceased Shidwa. P.W.8-Sita has further stated

that on the day of incident at about 6 a.m., her husband

Shidwa had called bullock-cart of P.W.5-Vishnu for the

purpose of transporting paddy to the market. At that time,

the Appellant came there. He assaulted her husband

Shidwa with wooden stick. Thereafter, she, P.W.1-Dama and

P.W.8-Vishnu lifted her husband and took him in the house.

Nothing has been elicited in the cross-examination of any

of these three witnesses so as to cause us to disbelieve

their testimony. Their testimony inspires implicit

confidence. Hence, we have no hesitation in relying on

their evidence.

8 No doubt, evidence of P.W.1-Dama, P.W.5-Vishnu

and P.W.8-Sita show that the Appellant assaulted Shidwa

with bamboo stick, however, the learned counsel for the

Appellant submitted that looking to the injuries sustained

by Shidwa, the act of the Appellant cannot fall under

Section 302 of the IPC but it would fall under Section

304(II) of IPC. Mr. Chaudhari the learned counsel for the

Shivgan

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Appellant pointed out that evidence on record, specially

panchanama at Exhibit 29 shows that the weapon used by

the Appellant was a bamboo stick which was just 2 ½ feet

in length and 1 ½ inch in diameter. He submits that such a

bamboo stick cannot be termed as deadly weapon. In

addition, he drew our attention to the injuries sustained by

deceased Shidwa. P.W.6-Dr. Milind Chiman Khandvi has

deposed about these injuries. P.W.6-Dr. Khandvi has stated

that on external examination, he found following injuries:

"1) Abrasion near left elbow joint size 2 cm x 1 cm

2) Abrasion site near right knee joint size 1 cm x 1 cm.

3) Head Injury :- 1) contusion and abrasion site above left eyebrow size 4 cm x 3 cm

4) Hematoma and swelling, site occipital region."

On internal examination, PW.6-Dr. Khandvi found

hematoma and blood accumulated at occipital region and

hemorrhage in cranial and occipital region. The cause of

death was neurological shock due to intra cranial

hemorrhage. Mr. Chaudhari, the learned counsel for the

Appellant submitted that blow given by the Appellant was

not such as to cause fracture of skull. He pointed out that

the act of the Appellant did not cause lacerated wound or

Shivgan

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even contusion. Looking to the medical evidence, we find

that it is indeed so. Hence, we find much merit in the

submission of learned counsel for the Appellant that the

Appellant did not use much force to assault Shidwa.