Shri Doma Bahadur Charade vs Stte Of Mah.Thr.Pso Nagpur
2017 Latest Caselaw 2627 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                       Criminal Appeal No. 773 of 2004

 Doma son of Bahadur Charade,
 aged 30 years,
 occupation - cultivator,
 resident of Dodma, Tq. Kuhi,
 Distt. Nagpur.                                 .....           Appellant


                                   Versus


 The State of Maharashtra,
 through Police Station Officer,
 Police Station, Kuhi,
 Distt. Nagpur.                                 .....        Respondent.


                                    *****
 Mr. C. F. Bhagwani, Adv., for the appellant.
 Mr. N.R. Patil, Addl. Public Prosecutor for the respondent.


                                    *****


                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   25th May, 2017

 ORAL JUDGMENT:

01. The Appellant has filed the present appeal under Section

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374 of the Criminal Procedure Code as he stands convicted of the

offence punishable under Section 304 Part-II of the Indian Penal Code.

By judgment dated 18th November, 2004 in Sessions Trial No. 303 of

2001, he has been sentenced to suffer Rigorous Imprisonment for a

period of five years.

02. It is the case of the prosecution that on 10th March, 2001 at

about 5.00 p.m., one Motiram Charde, his wife - Meerabai and their

sons were present at home. The appellant, who is the younger brother

of Motiram, picked up a quarrel with him. The appellant in that fight

lifted Motiram and threw him on the concrete courtyard of the house.

Motiram suffered injuries and thereafter succumbed to the same. On

that basis, Meerabai lodged a report and an offence came to be

registered. After due investigation, the appellant was charge-sheeted

and at the conclusion of the trial, he was convicted in the manner

stated herein above. Being aggrieved, the present appeal has been

filed.

03. Shri C.F. Bhagwani, learned counsel for the appellant,

submitted that the evidence on record was insufficient to convict the

appellant. The reason for the alleged quarrel between the appellant

and his brother has not been brought on record by the prosecution.

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According to him, in absence of any reason for the quarrel between the

brothers, the implication of the appellant was without any basis. He

submitted that there were various discrepancies in the deposition of

PW 1, PW 5 and PW 6. He referred to various omissions in their

deposition to urge that the case of the prosecution was rendered

doubtful. According to him, presence of PW 5 - Sanjay Kakde at the

village was not natural as this witness had admitted that he was a

resident of Nagpur since birth. No relative of the deceased had been

examined though, according to the first informant, their help was

sought. It was then submitted that presence of PW 6 at the spot is

doubtful because he had admitted that he had gone for watching

television at the appellant's house. He also referred to the First

Information Report at Exh.24 to point out absence of relevant

particulars therein. It was, therefore, submitted that conviction of the

appellant was uncalled for and he was entitled for acquittal.

04. Per contra, Shri N. R. Patil, learned Addl. Public Prosecutor,

supported the case of the prosecution. According to him, there was a

quarrel between the appellant and the deceased over their father

being sent to look after the cattle. The appellant was in the habit of

consuming liquor and demanding money from the deceased. He

submitted that presence of PW 5 at the village was natural as he had

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his agricultural land there and the incident had taken place a day after

the Holi festival. Though PW 6 had gone for watching a television in

the house of the appellant, the houses of the deceased and the

appellant were in front of each other. It was, therefore, submitted that

considering the overall material on record, the conviction of the

appellant was justified and the appeal lacked merit.

05. With the assistance of the learned counsel for the parties, I

have perused the records of the case and I have given due

consideration to the respective submissions.

06. PW 1 - Meerabai, who is the widow of Motiram, is the first

informant. The First Information Report at Exh.25 is based on her

report at Exh.24. She has stated that on the day of the incident, her

husband was sitting in the courtyard and she and her son were in the

house. The appellant had come there and had assaulted Motiram with

his shoes. He had also lifted Motiram and had thrown him on the floor.

She has further stated that after her husband was thrown, the

appellant was not permitting anybody to come near his body. She has

stated that the appellant was in the habit of consuming liquor. She

went for a distance of about eight kilometers on foot for lodging the

report which is at about 10.00 p.m. on the same day. Though this

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witness has been thoroughly cross-examined, nothing substantial has

been elicited from her. She has been confronted with certain

omissions, but the same are not of such nature so as to doubt her

testimony.

07. PW 5 - Sanjay at Exh.31 has stated that he had agricultural

land at the concerned village, but was residing at Nagpur. His house

was adjoining the house of Motiram and he had noticed that the

appellant and Motiram were quarreling. He had tried to pacify the

brothers; but the appellant told him not to interfere. After the assault,

this witness had tried to administer first aid and water. In his cross-

examination, this witness admitted that both the brothers used to

consume liquor. He was also confronted with certain omissions.

Presence of this witness at his ancestral house, especially on the

occasion of Holi, cannot be termed to be unnatural.

08. PW 6, the elder son of the deceased, was examined at

Exh.32. He has also narrated the incident in question and in his cross-

examination, has stated that he had gone to the house of the appellant

for watching a television. As per the Spot Panchanama at Exh.17, the

houses of the appellant and the deceased were facing each other and,

hence, presence of PW 6 at the spot within a short time is possible.

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09. On consideration of this material on record, it cannot be said

that prosecution had failed to prove its case beyond reasonable doubt.

The deposition of PW 1 - Meerabai is corroborated by the deposition of

PWs 5 and 6, except for certain minor discrepancies. These

discrepancies are not of such nature so as to render the entire

prosecution case improbable. Though it was urged on behalf of the

appellant that there was no motive on the part of the appellant in

quarreling with the deceased, the material on record indicates that

both the brothers were in the habit of consuming liquor. The earlier

quarrel was sought to be stopped by PW 5; but the appellant did not

pay any heed to his request. There is nothing on record to indicate

false implication of the appellant and his statement recorded under

Section 313 of the Code of Criminal Procedure is only of simple denial.

10. The learned Judge of the trial Court has rightly taken into

consideration the entire evidence on record and has thereafter held

the appellant guilty of the offence punishable under Section 304 Part-II

of the Penal Code. I am satisfied that the prosecution has proved its

case beyond reasonable doubt. The sentence of imprisonment as

imposed is reasonable in the facts of the case.

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11. In the result, the appeal fails. The judgment of the trial

Court in Sessions Trial No. 303 of 2001 stands confirmed. The

appellant is granted time of six weeks to surrender and suffer the

remaining sentence. Order accordingly.

Judge

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