Bombay High Court
Bhaurao S/O Bajirao Bagade (In ... vs State Of Maharashtra, Through ... on 27 March, 2017
Bench: B.P. Dharmadhikari
1 27032017 judg. apeal 465.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.465 of 2014
Bhaurao s/o Bajirao Bagade,
Aged 60 years, Occ.-Retired,
R/o.-Kakda, Tah. Karanja, Dist. Wardha. .... Appellant.
-Versus-
The State of Maharashtra,
Through P.S.O., Police Station Karanja (Ghadga),
Dist. Nagpur. .... Respondent.
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Shri R.M. Daga, Advocate for for appellant.
Shri A.S. Fulzele, Addl.PP for respondent.
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Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 27
March, 2017.
J U D G M E N T (Per B.P. Dharmadhikari, J.)
The appellant accused challenges the judgment and order
dated 12-08-2014 delivered by Sessions Judge, Wardha in Sessions
Trial No.116 of 2012 convicting him for offence punishable under
Section 302 of the Indian Penal Code and sentencing to suffer
imprisonment for life and fine of Rs.1,000/- in default rigorous
imprisonment for three months.
2 27032017 judg. apeal 465.14.odt
2] We have heard learned Advocate Shri Daga for the appellant
and Additional Public Prosecutor Shri Fulzele for the respondent
State.
3] After hearing the learned Advocates, we find that there could
have been four eye witnesses to the incident. Deceased Rajesh
happened to be son of appellant Bhaurao while complainant (PW-1)
Beby is wife of Bhaurao and mother of Rajesh, (PW-9) Laxmi is
daughter of this couple and (PW-5) Rajendra is husband of other
daughter. As per the story of prosecution, (PW-1) Beby, (PW-9) Laxmi
and two daughters of Rajendra were present on terrace where
appellant Bhaurao allegedly attacked his son Rajesh with hammer.
4] (Exhibit-47) is the report of Medical Officer on weapon. In that
report, length of hammer is recorded as 52 cms. and its weight is
6 Kg.
5] (PW-7) is Dr. Nilesh Tumram, who has conducted post mortem
of body of Rajesh. The post mortem report at Exhibit-45 is proved by
him. Against column 17 recording surface wound and injuries only
observation is contusion over left side of face. It is also recorded that
there was evidence of abrasion over maxillary and left mustroid
region within the contusion. The injury is shown as possible by use of
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hard and blunt object. Oral evidence adduced by Dr. Nilesh supports
this. He has deposed that cause of death is strangulation associated
with head injury. He has further remarked in post mortem report that
there was possibility of occurrence of head injury first with subsequent
strangulation unless otherwise proved. He has accordingly deposed.
In paragraph 8, he states that handle of hammer might have been
used to compress the neck for strangulation. He accepted that in post
mortem report he did not mention this fact. He accepted that
strangulation can be by hands. He clarified that it is called throttling.
6] Thus, as per this evidence brought on record by the prosecution,
it is strangulation associated with head injury which has caused
death. Evidence of doctor does not show that head injury resulted in
strangulation. If clearly shows that in absence of strangulation, Rajesh
would have been alive.
7] Perusal of records reveals that (PW-1) Beby and (PW-9)
Laxmi both speak of only attack by hammer and blows given by
appellant Bhaurao on head and chest of deceased Rajesh. According
to their evidence, these two witnesses, Rajesh and grand daughters of
Beby by name Anu and Tinku were sleeping on roof of the house
while appellant Bhaurao was sleeping below in open yard. They also
state that seeing attack, when they raised alarm, Bhaurao went down
4 27032017 judg. apeal 465.14.odt
by stairs with the hammer threw it and ran away. Both these
witnesses, therefore, do not point out any strangulation. They do not
state that with the handle of hammer or otherwise, Bhaurao pressed
neck of deceased Rajesh.
8] Police found hammer at the spot where it is allegedly thrown by
Bhaurao. (Exhibit-63) is the report of Chemical Analyzer on that
hammer. In this report item 7 is hammer while items 8, 9 and 10 are
full shirt, full pant and banyan of appellant Bhaurao. No blood stains
are found on these item/exhibits.
9] According to both these eye witnesses because of blows blood
was oozing out from nose and mouth of Rajesh. They do not speak of
any injury below left ear. May be blood was flowing even on wound
and from wound. C.A. report shows that Exhibit-5 bed sheet used by
Rajesh was not having any blood stains. However, Exhibit-6 quilt on
which he was sleeping had few blood stains ranging from 0.1 to
2 cms. in diameters on one side. In this situation, if the hammer was
used to give multiple blows and then discarded as alleged by these
witnesses, definitely blood wounds have been found on it. Not only
this if handle of hammer was used for strangulation, blood would have
appeared on handle. In other words, the material on record is
insufficient to connect the hammer seized by Police from the spot with
5 27032017 judg. apeal 465.14.odt
murder.
10] The First Information Report lodged by (PW-1) Beby
(Exhibit-19) mentions that at hospital in Karanja, Rajesh was
declared brought dead. Dr. Rizwan who examined Rajesh there has
been examined as (PW-10). He also deposes accordingly. Report
immediately sent by him on 06-05-2012 to Police at about 7.00 hours,
supports this position.
11] It is not the case of prosecution that after attack on Rajesh,
Rajesh was taken to any other doctor or was given any first aid or
other assistance. However, inquest panchanama (Exhibit-9) mentions
that on left hand near elbow there was a bandage strip used for
administering the saline. (PW-3) Sudhir who was attached to Karanja
Police Station as API, in cross examination, accepted that he had
found such a strip near left elbow of deceased.
12] This material therefore shows that the prosecution has not made
clean breast of the matter. When death was due to strangulation,
there is no evidence that appellant Bhaurao in any way strangulated
deceased Rajesh. On the contrary, (PW-9) Laxmi, in cross
examination states that Rajesh was alive when he was being taken
to hospital and he was giving hiccups. Thus, mode and manner in
6 27032017 judg. apeal 465.14.odt
which the entire episode took place is not correctly spoken of by
(PW-1) or (PW-9). Person responsible for strangulation is not being
named by them. In this situation, when the murder weapon alleged
to be hammer cannot be associated with murder at all, participation of
Bhaurao in alleged attack also becomes doubtful. (PW-9) has stated
that her father (appellant) was assaulting Rajesh by holding hammer
with both hands.
13] Saline strip on left elbow assumes importance in this backdrop.
Obviously (PW-10) Dr. Rizwan did not administer any saline. This
discovery of bandage strip therefore derogates from the
creditworthiness of prosecution story.
14] According to appellant, son-in-law Rajendra Patil was involved
in murder of elder brother of Rajesh by name Vijay. This murder
took place 6/7 years before 06-05-2012. Effort was to urge that
Rajendra eliminated Rajesh and to save Rajendra, (PW-1) and
(PW-9), gave false evidence. According to prosecution, appellant
suspected illicit relations between deceased and (PW-1) Beby i.e
between mother and son and therefore, he eliminated Rajesh. In the
light of material noted supra, we find it not necessary to look into this
controversy. Police has not produced grand daughters Anu and
Tinku as witnesses to support the event. Spot panchanama
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(Exhibit-21) shows that apart from the cot on which deceased was
sleeping, there was other bed rolls also on roof/slab. Why the other
witnesses are not examined is not clear.
15] Taking overall view of the matter, we find that prosecution has
failed to bring home guilt of appellant Bhaurao beyond reasonable
doubt. Hence, we proceed to pass the following order.
ORDER
(i) Criminal Appeal is allowed.
(ii) Judgment dated 12-08-2014 delivered by the Sessions
Judge, Wardha in Sessions Trial No.116/2012 is hereby
quashed and set aside.
(iii) The appellant is acquitted of the offence punishable
under Section 302 of Indian Penal Code.
(iv) He be set free, if his custody is not required in any
other matter.
(v) Muddemal property be dealt with as directed by the
Trial Court, after appeal period is over.
JUDGE JUDGE
Deshmukh
