Raghunath @ Raghu Zanakram Dhurve ... vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 8262 Bom

                                                    1              J-APEAL-240-16.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR

                         CRIMINAL APPEAL NO.240/2016

 Raghunath @ Raghu Zanakram Dhurve,
 Age - 30 years, Occu. Nil,
 R/o Behind Govt. Hospital, 
 Malkapur, Tq. Warud, Dist. Amravati
 at present, detained in Central Prison,
 Amravati (Convict No.C-4777).                               ..... APPELLANT

                               ...V E R S U S...

 The State of Maharashtra,
 through P.S.O. Police Station,
 Shendurjana Ghat, Tah.Warud,
 Dist. Amravati.                                             ... RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri R. R. Gour, Advocate (Appointed) for the appellant.
 Shri V. A. Thakare, A.P.P. for the respondent.
 -------------------------------------------------------------------------------------------
                                CORAM:-    
                                           PRASANNA B. VARALE &
                                              ARUN D. UPADHYE, JJ.

DATED :

31/10/2017.

ORAL JUDGMENT : (PER PRASANNA B. VARALE, J.)

1. Heard Shri Gour, learned counsel (Appointed) for the

appellant and Shri V. A. Thakare, learned A.P.P. for the State.

2. By the present appeal, the appellant (original accused

No.1 in Sessions Trial No.211/2012) challenging the Judgment and

order passed by the Additional Sessions Judge-1, Amravati dated 2 nd

September, 2015, thereby convicting the original accused No.1 i.e. the

appellant Raghunath @ Raghu Zanakram Dhurve for the offence

punishable under Section 302 of the Indian Penal Code sentencing him

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to undergo life imprisonment along with fine of Rs.5,000/-, in default,

to undergo simple imprisonment for one year and convicting the

accused No.2 Jagdish @ Jaggu Zanakram Dhurve for the offence

punishable under Section 323 of the Indian Penal Code and sentencing

him to undergo simple imprisonment for one year.

3. The case of the prosecution unfolds through the report

lodged at the instance of Shankar Belsare. It was informed to Shankar

Belsare on 22/06/2012 through one Ajay Takarkhede and Jagdish

Belsare was subjected to axe blows by Raghunath @ Raghu Zanakram

Dhurve and his brother Jagdish @ Zanakram Dhurve have dispute of

theft of tractor. The said incident took place at 9.30 p.m. On receiving

the information, Shankar Belsare immediately rushed to the spot on the

motor-cycle with Ajay Takarkhede and on reaching the spot, he found

that his son Jagdish Belsare was lying in a pool of blood and injury at

his neck. In the mean time, the police also reached on the spot and

shifted the dead body. On receiving the report, Investigating Agency

was set in motion. The usual formality of recording the statements of

witnesses, drawing panchnama, such as Inquest Panchnama, Spot

Panchnama were completed. The Investigating Agency collected the

material namely; apparels and the weapon used in the commission of

offence. The material was also referred to for Chemical Analyzer. The

Agency then received the report from Laboratory. On concluding the

investigation, charge sheet was filed. The case being exclusively triable

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by the Sessions Court, the learned Additional Sessions Judge-1,

Amravati on committal order, conducted the trial. The prosecution

examined as many as 9 witnesses in support of its case. The defence of

the accused persons was of denial and false implication on assessing the

evidence. The learned Sessions Judge found that the prosecution was

successful in proving its case against the accused No.1 for commission

of offence punishable under Section 302 of the I.P.C. Accordingly, the

conviction was recorded.

4. Shri Gour, learned counsel (appointed) vehemently

submitted before this Court that the learned Sessions Judge erred in

appreciating the evidence. It was his submission that though the

prosecution heavily relied on the version of so called eye-witnesses.

These eye-witnesses were interested eye-witnesses. He then submitted

that the other evidence is also doubtful, as the weapon forwarded for

analysis, was not properly sealed. He also made an attempt to submit

that the learned Trial Court failed to appreciate the defence on the

aspect of the injuries caused to the deceased. It was submitted that the

deceased fell on the cement road and with the impact, injury might

have been caused in a way, it was the submission that the death of the

deceased was not homicidal one, but was an accidental one. The

learned A.P.P. supported the Judgment and order.

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5. With the assistance of both the learned counsel, we

have gone through the evidence brought before the learned Sessions

Judge. The prosecution's case mainly rests on the version of the

witnesses i.e. PW-3 and PW-5.

6. Insofar as the death of the deceased is concerned, the

learned Sessions Judge on the basis of the medical evidence as well as

the version of the eye-witnesses, arrived at a conclusion that the death

of the deceased was homicidal one. The learned Judge also arrived at a

conclusion that the authorship of the crime goes to the appellant i.e.

accused No.1.

7. As we are dealing with the version of these eye-

witnesses, later on, firstly, we are dealing with the medical evidence i.e.

the version of PW-6 - Dr. Jagdish Madhukar Kalbhor (M.O.), who was

the Autopsy Surgeon. It would be necessary to refer to the testimony of

Dr. Jagdish Kalbhor. He deposed that on 23/06/2012, he was

discharging his duty as a Medical Officer at the Rural Hospital, Warud

and on that date, he received Inquest Panchnama forwarded through

the officials of Shendurjana-Ghat Police Station and also, the dead body

of Jagdish Belsare for autopsy. He performed autopsy between 11.30

a.m. to 12.30 p.m. He found that there are tattoo marks on the right

forearm of the dead body with writing "Jagdish". He then deposed that

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the dead body was of 30 years male. He referred to the apparels worn

by the deceased namely;

1) One light yellow coloured lining shirt soaked with blood and torn near right collar.

 2)     One sando baniyan soaked with blood.
 3)     Greyish black lining coloured full-pant and
 4)     Blue coloured nicker with white and yellow lining.

On external examination, he found the following

injuries on the dead body of the deceased namely;

1) Perforating injury elliptical in shape, having size 3½" x 2" x ½" above thyroid cartilage perforating trachea, oesophagus and carotid artery.

2) Perforating injury, having size 3½" x 1½" x 1½"above thyroid cartilage perforating trachea, oesophagus and common carotid artery.

3) Perforating injury, having size 2" x 1" x 1½" above right Sterno clavicular joint (lower portion of the neck joining chest) perforating major neck vessels.

4) Perforating injury, having size 3" x 1½" x ½" below right ear.

5) Perforating injury, having size 2" x 1" x 1" present laterally on right side of neck.

6) Lacerated wound of size 2" x ½" x ½" over right temporal region of head.

7) Linear abrasion of size 4" x 0.5" present over chest.

8) Linear abrasion of size 3" x 0.5" present over back.

On internal examination, he found the following

injuries on the dead body of the deceased namely;

1) Fracture of sternum, perforation of trachea of upper one third.

 2)     Perforation of upper one third oesophagus.





                                                    6             J-APEAL-240-16.odt

8. PW-6 - Dr. Jagdish Kalbhor deposed that all these

external and internal injuries were ante-mortem. Then, he states that

that on examination of these external and internal injuries on the dead

body, he arrived at a conclusion that the deceased died due to injury to

the major vessel of the neck and trachea. He then states that the injury

Nos.1, 2 and 3 of Column No.17 of the post-mortem are fatal in nature

and the victim could have caused death in the ordinary course of

nature. He then states that he had received the query letter on

25/06/2012 seeking his opinion along with one axe in a sealed

condition. He then deposed that on examination of the axe, he found

that it was having handle of 29½" and circumference of 4", it was

having iron blade of 2½" in width and it was having 6" length from

spherical side to sharp side and at near handle it was having

circumference of 5½". He found that that the blood stain was there at

the blade and handle of that axe. On his examination of the weapon, he

replied to the queries affirming that the injuries on the person of victim

could have been possible by the said weapon axe. It would be

interesting to note that though attempt was made in the cross-

examination to show that the injuries caused to the deceased could

have been accidental injuries due to fall on the cement road and the

deceased might have been under influence of alcohol and while driving

the motor cycle, had fallen on the cement road. The Medical Officer,

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PW-6 - Dr. Jagdish Kalbhor clearly denied that suggestion. Thus, the

evidence of PW-6 is to establish the preliminary aspect that the death of

deceased was homicidal one.

9. Now, turning to the other material evidence i.e. of the

eye-witnesses PW-3 - Ajay Mahadeorao Takarkhede and PW-5 - Punaji

Ramesh Pawar. Firstly, these witnesses are not in relation with the

deceased. Secondly, the PW-5 - Punaji Pawar is an independent

witness, who was a chance witness and had occasion to see the

incident. PW-3 - Ajay Takarkhede deposed that he is the resident of

village Shendurjana Ghat and was knowing the deceased Jagdish

Belsare as a co-villager. Then he deposed that on 22/06/2012 at about

9.30 p.m., he was standing along with Punaji Pawar in the area known

as Weekly Market area situated in front of the Government Hospital. He

then deposed that both the accused were present nearby at that point of

time. Mr. Jagdish Belsare (deceased) reached on the spot on his motor-

cycle. The accused had a grudge against Jagdish Belsare and was having

a suspicion that Jagdish Belsare implicated him in the case of theft of

tractor. On this backdrop, accused-appellant Raghunath Dhurve started

questioning the deceased as to how he named his name in the case of

theft of the tractor. The question then resulted in altercation.

Mr.Jagdish Dhurve was present along with appellant Raghunath

Dhurve. Then accused Jagdish Dhurve caught deceased Jagdish Belsare.

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PW-3 - Ajay Takarkhede then deposed that the accused-appellant

Raghunath Dhurve then rushed to his house and brought an axe and

gave a blow of axe at the neck of Jagdish Belsare. Jagdish Belsare fell

down with bleeding injuries. He further deposed that he went to the

house of the father of Jagdish Belsare and informed him about the

incident and brought the father of victim Jagdish Belsare to the place of

incident. He then reiterates that the appellant Raghunath Dhurve killed

Jagdish Belsare. Then he further deposed that there was an electric pole

at the place of incident and the electric supply was available and in the

light of electric pole and in that light, he had witnessed the incident. In

the cross-examination of this witness, an attempt was made to show

that the witnesses failed to intervene in the assault so as to save the

victim. In the cross-examination, an attempt was made to suggest that

this witness was only a silent spectator and though he had witnessed

the incident, failed to make any positive attempt. Though Shri Gour,

learned counsel vehemently submitted that there are certain omissions

in the version of this witness. On assessing the version of these

witnesses, we are of the opinion that these omissions are of so minor

nature that they hardly affected otherwise unshaken and clear version

of PW-3 - Ajay Takarkhede.

10. Similar is the case of other star witness PW-5 Punaji

Ramesh Pawar. Punaji Pawar was also present on the spot on

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22/06/2012 at about 9.30 p.m. His version is in tantamount with the

version of PW-3 - Ajay Takarkhede. Punaji Pawar refers to the father of

the appellant ran to his house and brought axe from his house and gave

successive blows of axe on the neck of Jagdish Belsare. He then deposed

that Jagdish Belsare fell down with bleeding injuries and on seeing this,

he was so frightened that he immediately left the spot and went to his

house. In the cross-examination, an attempt is made to suggest that this

witness is an interested witness as he has friendly terms with PW-3 -

Ajay Takarkhede is also an attempt made in the cross-examination to

show that this witness made no hue and cry even though he witnessed

the incident. Learned counsel for the appellant made a reference to the

certain omissions like PW-3 - Ajay Takarkhede. The omissions brought

on record are of minor nature. They are not damaging the version

which is otherwise truthful and clear revealing the presence of the

appellant on the spot. The appellant who rushed to his house, came

back to this spot with an axe in his hand and gave successive blows to

the victim. It may not be out of place to state that the death was an

instantaneous death, though an attempt is made by the learned counsel

to submit that the behaviour of these witnesses creates doubts. The

learned counsel submitted that both of these witnesses though

witnessed the incident, made no attempts either to call for help or to

assist the victim or to intervene while assault is being made or the

injuries were inflicted upon the victim.

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11. We are not inclined to accept the submission of learned

counsel. It is now settled view of the Hon'ble Apex Court that merely

because the witness is having relationship with the deceased or is

having friendly terms with the deceased, the witness cannot be branded

as an interested witness. His version, if assessed and found truthful

merely his partisanship with the victim is no ground to discard

otherwise truthful version of said witnesses.

12. Secondly, it is now settled view reflected from the

Judgment of this Court as well as the Hon'ble Apex Court that the

witnesses may act in different ways. It is not a straight jacket formula of

reaction of witness in a particular way. The reaction of the witness may

differ such as somebody may raise a cry, somebody after witnessing

gruesome incident may be speechless, somebody may rush to help the

victim and somebody, in a frightened state, may leave the spot

immediately. The reaction of both these witnesses cannot be termed as

an unnatural reaction and merely because these witnesses made no

attempt to raise a hue and cry or made no attempt to stop the attack,

cannot be a ground to discard the version of these two witnesses. The

other witnesses are two panch witnesses, who are the formal witnesses.

13. It would be again useful to refer to the evidence of the

Investigating Officer i.e. PW-7 - Sunil Vishnu Kinage, who provides us

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the details of the steps undertaken by him in the course of investigation.

The evidence of the Investigating Officer discloses the steps taken such

as on receiving the information, rushed to the spot immediately,

effecting the arrest of the accused persons, subjecting the accused

persons to search, drawing the panchnama after visiting the spot,

collecting the material from the spot namely; the blood stains, soil and

ordinary soil. This witness also states about the other steps such as

obtaining the report from the Junior Engineer, MSEDCL in respect of

availability of the electricity supply on the fateful day. Though the

attempt is made in the cross-examination to submit that the accused

were not having any criminal antecedents at their credit and though the

PW-7- Sunil Kinage replied in the affirmative, it hardly helps the

appellant to raise any defence in respect of authorship of the crime.

14. PW-9 is Ghanshyam Mahadeorao Gurukar, who had

conducted the part investigation. He took steps in the investigation,

such as registering the crime on receiving the report through father of

the victim i.e. Shankar Belsare, visiting the Rural Hospital, drawing the

Inquest Panchnama, then forwarding the dead body of the victim to

Autopsy Surgeon. The Investigating Officer also seized the weapon used

in the commission of the offence, which was produced at the instance of

the appellant. It may be useful to refer to the evidence of this witness in

respect of the weapon. He deposed that he along with the accused,

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panchas and other staff reached to the house of accused. The appellant-

accused went to the corner of the house where the fuel wood was kept

and the appellant-accused produced one axe from the heap of fuel

wood. The axe was beneath the fuel wood and was not visible. He then

deposed that the axe was having wooden handle and iron blade and

blade portion was having mud and blood stains. Then he states that axe

was having length of 29½ inches, having diameter of 4 inches and blade

was 2½ inches breadth. Then he stated about the recording of seizure

panchnama effecting the signatures of the panchas. Then he deposed

that the query letter forwarded to the Medical Officer on 25/06/2012 as

to whether the injuries sustained by the victim Jagdish Belsare could

have been caused by the axe. The query letter is at Exh.68. Then he

states about the opinion on the query letter forwarded to the Medical

Officer at Exh.57. Then he deposed about the articles forwarded to the

Chemical Analyzer. He clearly states that all these articles were in a

sealed condition and after his verification, he forwarded those articles.

Then he states about the seizure of the clothes worn by the appellant

and other accused Jagdish Dhurve and drawing the panchnama of that

seizure. The said panchnams are at Exhs.50 and 51. The documents

namely; forwarding of the articles to the Chemical Analyzer and the

Chemical Analyzer's reports are the admitted documents by the defence.

The witness was subjected to cross-examination and the defence could

not elicit much from this witness either to falsify the version of this

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witness or to support the case of the appellant in defence. The material

collected by the Investigating Officer reflected from the Chemical

Analyzer's report also support the case of the prosecution. The defence

counsel could not avail any help from the cross-examination of the

material witness on the aspect of a Chemical Analyzer's report.

15. Considering the evidence relied on by the prosecution,

we are of the opinion that the prosecution with the help of the star

witnesses i.e. PW-3 - Ajay Takarkhede, PW-5 - Punaji Pawar and PW-6

- Dr. Jagdish Kalbhor proved its case against the appellant beyond

reasonable doubt. The conclusion arrived at by the learned Sessions

Judge in respect of the authorship of the crime by the appellant and

accordingly recording the judgment of conviction is just and legal. We

see no merit in the appeal. The appeal is thus, being devoid of merit,

deserves to be dismissed and the same is accordingly dismissed.

16. The fees of Shri Gour, learned counsel (Appointed) for

the appellant is quantified at Rs.5,000/-.

                      JUDGE                                    JUDGE


 Choulwar