Bombay High Court

Bhagwan Sakharam Bhangare vs The State Of Maharashtra on 6 September, 2017

Bench: V.K. Tahilramani

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RMA      
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                CRIMINAL APPEAL NO. 862 OF 2014


            Bhagwan Sakharam Bhangare
            Age - 38 Years, Resident of Indiranagar
            Slum Area, Harsul,
            Taluka Trymbakeshwar,
            Dist. Nashik.
            [Presently lodged in Nashik Road Central
             Jail, Nashik (Prisoner No. 8985)]                             .. Appellant
                                                                              (Org. Accused)
                                 Versus
            The State of Maharashtra
            At the instance of Police Station, Harsul,
            Taluka Trymbakeshwar, Dist. Nashik.                            .. Respondent

                                                  ...................
            Appearances
            Mrs. Farhana Shah Advocate (appointed) for the Appellant
            Mr. Arfan Sait    APP for the State
                                                  ...................



                              CORAM       : SMT. V.K. TAHILRAMANI &
                                              DR. SHALINI PHANSALKAR-JOSHI, JJ.

DATE : SEPTEMBER 6, 2017.

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

1. This appeal is preferred by the appellant-original

accused against the judgment and order dated 27.4.2012

passed by the learned Additional Sessions Judge-5, Nashik in

Sessions Case No. 129 of 2011. By the said judgment and

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order, the learned Session Judge convicted the appellant for

the offence punishable under Section 302 of IPC and

sentenced him to suffer life imprisonment and fine of Rs.

3000/-, in default R.I. for two months.

2. The prosecution case briefly stated, is as under:

(a) Deceased Damu Chaudhari was the nephew of PW

1 Simibai. The appellant was son-in-law of

Simibai. There was a dispute between deceased

Damu and the appellant in relation to property

which was a house. The said house belonged to

Damu, however, the appellant was asking Damu

to give the appellant the house property.

(b) The incident occurred on 1.2.2011 at about 2.30

p.m. At that time, the appellant inflicted blow

with spade on the head of Damu. This incident

was witnessed by PW 1 Simibai who rushed to the

spot. Meanwhile, Damu fell on the ground due to

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the injuries. He died on the spot. Thereafter,

Simibai went to the Police Station and lodged the

FIR Exh. 19. Thereafter, investigation commenced.

After completion of investigation, the charge

sheet came to be filed.

3. Charge came to be framed against the appellant -

original accused under Sections 302 and 504 of IPC. The

appellant-accused pleaded not guilty to the said charge and

claimed to be tried. His defence was 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 Advocate for the appellant

and the learned APP. After giving our anxious consideration

to the facts and circumstances of the case, arguments

advanced by the learned counsel for the parties, the

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judgment delivered by the learned Sessions Judge and the

evidence on record, for the reasons stated below, we are of

the opinion that the appellant assaulted Damu with a spade

on the head and caused his death.

5. The conviction is mainly based on the evidence of PW 1

Simibai who is an eye witness to the incident. Deceased

Damu was the nephew of Simibai. Damu was residing

behind the house of Simibai. Simibai has stated that there

was a dispute between Damu and her son-in-law Bhagwan i.e

the appellant in relation to property which was a house. The

house belonged to Damu, however, the appellant was asking

Damu to give the appellant the house property. Simibai has

stated that she saw the appellant inflicting blow with spade

on the head of Damu. The incident was visible from her

house. On seeing the incident, she immediately rushed to

the spot. She cried loudly to save her nephew Damu. Damu

fell on the ground due to the injuries sustained by him due to

the blow with spade. Simibai went to the police station and

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lodged the FIR. Nothing has been elicited in cross-

examination of PW 1 Simibai to cause us to disbelieve her

evidence.

6. That Damu died a homicidal death is brought out

through the evidence of PW 7 Dr. Patil who conducted the

postmortem on the dead body of Damu. She has stated that

she found fracture of skull in the parietal region ad-

measuring 8.5 cms into 1.5 cms. In the opinion of Dr. Patil,

the cause of death was death due to hemorrhagic shock due

to interacranial and external hemorrhage.

7. Advocate Mrs. Farhana Shah tried to contend that the

cause of death was not due to the assault by the appellant

but the death was caused on account of falling on a pointed

stone and sustaining injury. In support of this contention,

she placed reliance on the cross-examination of PW 7 Dr.

Patil where Dr. Patil has stated that it is true to say that if a

person falls on a pointed stone, the injury mentioned and as

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sustained by the deceased is possible. However, it is

pertinent to note that Dr. Patil has thereafter stated that if a

person sustains head injury, he wakes up and again falls due

to giddiness, then the person can sustain hemorrhagic shock

only if on the same point of injury, very hard impact is

caused. It is extremely difficult to imagine that a person

sustains head injury, thereafter falls down and again sustains

injury on the same point where he has sustained the earlier

injury. In view of the categorical evidence of PW 1 Simibai

who states that she has witnessed the incident of the

appellant assaulting Damu with spade on the head, we

cannot give much importance to the admission given by Dr.

Patil specially in view of further clarification given by Dr. Patil

that if a person sustains head injury, he wakes up and again

falls due to giddiness, then the person can sustain

hemorrhagic shock only if on the same point of injury, very

hard impact is caused.

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8. In addition, the prosecution has placed reliance on the

evidence of PW 8 Mr. Wankar. He has stated that on

9.2.2011, the appellant gave a disclosure statement that he

is ready to produce the clothes worn by him at the time of

the incident. This disclosure statement which was recorded

is at Exh. 38. Thereafter, Mr. Wankar has stated that they

went to the house of the appellant as pointed out by the

appellant. The appellant gave them clothes which came to

be seized. These clothes were sent to C.A. As per C.A.

Report Exh. 45, the pant and shirt of the appellant were

stained with human blood. Further the evidence of PW 2 Mr.

Bhaye shows that the spade was seized from the spot. The

spade was stained with blood. The said spade came to be

seized and was sent for C.A. As per C.A. report Exh. 45, the

spade was stained with human blood. In this connection, we

may usefully refer to the decision of the Supreme Court in

the case Gura Singh Vs. State of Rajasthan1, wherein it

has been observed as under :



1 (2001) 2 SCC 205



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             "        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 Kerala 2, Molai & Anr.

Vs State of Madhya Pradesh.3 and Khujji @ Surendra

Tiwari Vs. State of Madhya Pradesh 4. It is pertinent to

note that the appellant has not given any explanation for the

presence of blood on his clothes.

9. Looking to the evidence on record specially that of PW

1 Simibai, we are of the opinion that the prosecution has

proved beyond reasonable doubt that the appellant caused 2 (2013) 14 SCC 266 3 1999(9) SCC 581 4 AIR 1991 SC 1853

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the death of Damu by assaulting him with a spade on the