Ankush Harishchandra Waghamare vs The State Of Maharashtra
2017 Latest Caselaw 7771 Bom

                                          1        Cri.Appeal No. 714/2014(918)

mnm

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 714 OF 2014

Ankush Harischandra Waghamare                  ...Appellant 
                                               (Orig. Accused)
     Vs.
The State of Maharashtra                       ...Respondent
                                               (Orig. Complainant)

Ms. Ameeta Kuttikrishnan, Advocate appointed for the Appellant 
Mrs. G.P. Mulekar, A.P.P for the State 

                                        CORAM : SMT. V.K. TAHILRAMANI, &
                                                    M.S. KARNIK, JJ.

DATED :4TH OCTOBER, 2017

JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.]

1. The Appellant has preferred this appeal against the judgment

and order dated 30th November, 2013 passed by the learned

Additional Sessions Judge, Khed in Sessions Case No.29 of 2011.

By the said judgment and order the Appellant has been convicted

under Section 302 of I.P.C for causing the death of Mohammed

Hasan Chiplunkar. For the said offence he has been sentenced to

life imprisonment and fine of Rs.3000 i/d Rigorous Imprisonment

for 3 months. In addition the Appellant has been convicted under

Section 324 of I.P.C for causing injuries to P.W. 8 Nanda who is the

mother-in-law of the Appellant. For the said offence he has been

sentenced to Rigorous Imprisonment for one year and fine of

Rs.500/- i/d Rigorous Imprisonment for one month.

2. The prosecution case briefly stated is as under:

The Appellant was working as a labourer with the deceased

Mohammed Hasan Chiplunkar and his brother P.W. No.1 Hashmat

Hasan Chiplunkar. The Appellant was residing along with his wife

Jyoti (P.W. 12) and parents of Jyoti at Kalkavne Khairat which is in

Ratnagiri District. Jyoti was also working as a labourer with

Mohammed Hasan Chiplunkar. The incident occurred on 14 th April,

2011 at about 6 p.m. The Appellant came home in an intoxicated

state. He had brought one bottle of liquor with him. He poured

the said liquor from the bottle in a glass and asked his wife P.W. 12

Jyoti to give him dinner. Jyoti gave him dinner. While giving

dinner liquor from the glass fell down, hence the Appellant started

assaulting his daughter as well as Jyoti. At that time parents of

Jyoti came to rescue her and her daughter. The Appellant then

assaulted P.W. 8 Nanda who is his mother-in-law. Somebody

informed the deceased Mohammed Chiplunkar who was the

employer of the Appellant and Jyoti, that the Appellant was

assaulting Jyoti. Deceased Mohammed Chiplunkar came to the

spot and he asked the Appellant why he was assaulting his wife

Jyoti. Mohammed tried to convince the Appellant, however the

Appellant started to assault Mohammed with sickle. This was also

witnessed by P.W. 7 Sanjay. Sanjay went to the house of P.W. 1

Hashmat who was the brother of Mohammed. Sanjay informed

Hashmat that the Appellant was assaulting Mohammed. Hashmat

then went towards the spot however on the way he met the

Appellant. The Appellant informed Hashmat that he had killed

Mohammed with a sickle. When Hashmat and others went to the

spot they saw Mohammed lying on the ground with injuries on his

body. Mohammed was taken to the hospital where the Doctor

declared him dead. Hashmat then lodged F.I.R, thereafter

investigation commenced. The dead body of Mohammed was sent

for Postmortem Report. P.W. 10 Dr. Jadhav conducted postmortem

on the dead body of Mohammed. He found ten injuries on the

body of Mohammed. 3 of the injuries were on the parietal region, 4

injuries on occipital region, 1 injury was on the chest and the last

two injuries were on the wrist and chin. The Appellant was

arrested. A blood stained sickle was recovered at the instance of

the Appellant. At the time of arrest, the clothes of the Appellant

were found stained with blood, they came to be seized. After

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

3. Charge came to be framed against the Appellant under

Section 302 for causing the death of Mohammed Hasan Chiplunkar,

under Section 324 for causing hurt to Nanda and Chagan, under

Section 323 for causing hurt to Jyoti and under Section 201 of I.P.C.

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 Sessions Judge 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

learned A.P.P for the State. We have carefully considered their

submissions, the judgment and order passed by the learned

Sessions Judge and the evidence in this case. After carefully

considering the same, for the below mentioned reasons we are of

the opinion that the Appellant assaulted Mohammed Hasan

Chiplunkar with sickle and caused his death.

5. The conviction of the Appellant is mainly based on the

evidence of two eye witnesses i.e. P.W. 7 Sanjay and P.W. 12 Jyoti.

Sanjay, his parents, the Appellant etc., were working under

Mohammed Chiplunkar. Jyoti wife of the Appellant was also

working with Mohammed Chiplunkar. On the day of the incident

the Appellant assaulted his wife Jyoti. Some one informed

Mohammed Chiplunkar that the Appellant had assaulted his wife.

Mohammed Chiplunkar then came to the spot, he asked the

Appellant why he was doing so. Thereupon the Appellant removed

sickle and started to assault Mohammed Chiplunkar. Mohammed

fell on the ground. Sanjay then went to the house of Mohammad

there he met Hashmat (P.W. No.1) brother of Mohammad. He

informed Hashmat about Appellant assaulting Mohammed then

Hashmat came to the spot and lifted Mohammad and took him in a

vehicle to the hospital.

6. The second eye witness is P.W. 12 Jyoti, she was the wife of

the Appellant. She has stated that she was residing at Kalkavane

Khairat, District Ratnagiri with her husband i.e. the Appellant, her

mother, her father and others. On the day of the incident her

husband came home in an intoxicated state. He had brought one

bottle of liquor, he poured the liquor from the bottle in a glass and

asked her to give him dinner. She gave him dinner at that time the

liquor from the glass fell. He removed one half burnt stick from the

earthen oven and started to assault his daughter as liquor had

fallen due to her. At that time Jyoti's parents came to rescue her

and her daughter. Her husband then assaulted her mother. Her

mother fell down. Meanwhile some one informed her employer

Mohammed Chiplunkar about the incident. Hence her employer

came to the spot. The employer Mohammed asked the Appellant

why he was assaulting his wife Jyoti. Then her husband that is the

Appellant started to assault Mohammed with a sickle.

7. Learned Counsel for the Appellant submitted that there are

major discrepancies in the evidence of P.W. 7 Sanjay and P.W. 12

Jyoti, both of whom are eye witnesses to the incident. No doubt

there are some discrepancies in the evidence of both these eye

witnesses however it is seen that both these witnesses are illiterate

labourers. However the basic substratum of the evidence of both

these witnesses is that the Appellant assaulted Mohammed with a

sickle which is absolutely consistent and is not dislodged. There is

no discrepancy at all as far as this aspect is concerned.

8. It is the prosecution case that the Appellant assaulted

Mohammed with a sickle which led to the death of Mohammed.

This is borne out by the medical evidence. P.W. 10 Dr. Jadhav

conducted the postmortem on the dead body of Mohammed. He

found ten injuries on the body of Mohammed. 3 of the injuries were

on the parietal region, 4 injuries were on occipital region, 1 injury

was on the chest and the last two injuries were on the wrist and

chin. Dr. Jadhav has categorically stated that the injuries

mentioned in Postmortem report may be caused with sickle

Article-9.

9. In addition to the evidence of the two eye witnesses the

prosecution is relying on the circumstance, of extra judicial

confession. In relation to this circumstance reliance is placed on

the evidence of P.W. No.1 Hashmat who is the brother of deceased

Mohammed. Hasmat has stated that the Appellant was working

with them. Hashmat has further stated that at about 7.00 p.m.

P.W. No.7 Sanjay came to his house. Sanjay informed Hashmat that

the Appellant was assaulting Mohammed. Hence Hashmat

proceeded to the spot. However on the way Hashmat met the

Appellant. The Appellant told Hashmat that he had killed

Mohammed with the sickle. When Hashmat went to the spot he

found his brother Mohammed lying on the ground with injuries on

his person. Hashmat took Mohammed to the hospital where the

Doctor declared him dead. Hashmat then lodged FIR Exhibit-15.

10. The prosecution has also placed reliance on the circumstance

of recovery of blood stained sickle at the instance of the Appellant.

P.W. No.6 Rajan is the panch witness who has deposed on this

aspect. He has stated that the Appellant stated in his presence that

he had kept the sickle under dry leaves under a tree and he will

produce the same. Rajan has stated that thereafter the Appellant

took them to the spot and removed the sickle from under dry

leaves. The sickle was stained with blood. Police seized the same.

11. Another circumstance against the Appellant is that when he

was arrested the clothes on his person were found stained with

blood. P.W. No.3 panch witness Samir has deposed about this

aspect. He has stated that the Police arrested the Appellant in his

presence and seized the clothes which were on the person of the

Appellant. There were blood stains on the said clothes. The

evidence of Investigating Officer P.W. No.13 shows that the clothes

were sent to the C.A. The C.A. Report Exhibit-57 shows that the

sickle as well as the clothes of the Appellant were stained with

'Human' blood. In this connection, we may usefully refer to the

decision of the Supreme Court in the case of Gura Singh Vs. State

of Rajasthan1, wherein it has been observed as under :

" In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507) we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the 'origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant."

Similar view has been taken by the Supreme Court in the

cases of R. Shaji Vs. State of Kerala2, Molai & Anr. Vs State of

Madhya Pradesh.3 and Khujji @ Surendra Tiwari Vs. State of

Madhya Pradesh4. It is pertinent to note that the Appellant has not

given any explanation for the presence of blood on his clothes or on

the sickle.

1 (2001) 2 SCC 205 2 (2013) 14 SCC 266 3 1999(9) SCC 581 4 AIR 1991 SC 1853

12. Learned Counsel for the Appellant submitted that the

circumstance that at the time of arrest the clothes of the Appellant

were found stained with blood which came to be seized cannot be

relied upon in view of the evidence of P.W. 13. She drew our

attention to the evidence of Investigating Officer P.W. No.13 A.P.I.

Shinde, which shows that since the incident till arrest of Appellant

the Appellant was along with the villagers. The panchanama

Exhibit-22 which is the arrest panchanama of the Appellant shows

that the complainant Hashmat was present and he stated that he

had caught the Appellant and he has handed over the custody of

the Appellant to the police. It is seen from the time of the incident

till the time of arrest the Appellant was indeed with the villagers

thus this aspect is not such as to create any doubt about the

circumstance that when the Appellant was arrested the clothes on

his person were blood stained which came to be seized under

Panchanama Exhibit-22. It is also pertinent to note that at the time

of arrest, no injuries were found on the person of the Appellant,

which is clear from arrest panchanma Exhibit-22. Thus it cannot

also be argued that the blood on his clothes is his blood. In any

event, as seen from his statement under Section 313 Cr.P.C., it is not

even the case of the Appellant that his clothes were stained with his

own blood.

13. The Appellant has been convicted under Section 302 as well

as 324 of the I.P.C. He was convicted under Section 302 for causing

the death of Mohammed Hasan Chiplunkar by assaulting him with

a sickle, the Appellant was also convicted under Section 324 of I.P.C

for causing injury to P.W. No.8 Nanda. However it is pertinent to

note that P.W. No.8 Nanda has made no reference at all to assault

on her by the Appellant by sickle or any weapon. In fact she has

not attributed any act of assault on her by the Appellant. In such

case the conviction of the Appellant under Section 324 for causing

injury to P.W. No.8 Nanda has to be set aside. As far as the

conviction under Section 302 of I.P.C is concerned the prosecution

has proved the same beyond reasonable doubt. In the result the

following order is passed.

O R D E R

1. The conviction and sentence of the Appellant

under Section 302 is confirmed however the conviction

and sentence of Appellant under Section 324 of I.P.C is

set aside.

2. The Appeal is partly allowed in the above terms.

(M.S. KARNIK, J.) (SMT. V.K. TAHILRAMANI, J.)