Sanjay Manohar Kapse vs The State Of Maharashtra
2017 Latest Caselaw 6931 Bom

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

                                CRIMINAL APPEAL NO. 387 OF 2014


            Sanjay Manohar Kapse                                            .. Appellant
                                                                                 (Org. Accused No. 2)

                                 Versus
            The State of Maharashtra                                        .. Respondent

                                                  ...................
            Appearances
            Mrs. Nasreen S.K. Ayubi Advocate (appointed) for the Appellant
            Mr. Arfan Sait          APP for the State
                                                  ...................



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

DATE : SEPTEMBER 8, 2017.

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

1. This appeal is preferred by the appellant-original

accused No. 2 against the judgment and order dated

22.1.2014 passed by the learned Additional Sessions Judge,

Niphad in Sessions Case No. 44 of 2012. By the said

judgment and 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.

200/-, in default S.I. for 15 days.

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

(a) The complainant - PW 1 Shobha was residing at

Bhimgarjana Nagar, Ozar along with her family.

The appellant was residing at some distance from

her house.

(b) On 8.4.2012, Shobha retured home. At about

9.00 p.m., original accused No. 1 - Prakash came

to her house and asked for dinner. Shobha

provided dinner to him at his house. At that time,

she saw deceased Amrya @ Amar was sleeping

outside the house of Prakash. After sometime,

her son Sandeep (PW 2) who was sleeping woke

up and said he wanted to answer the call of

nature. He alone went to attend the call of

nature. Sandeep saw the appellant assaulting

Amrya on his head with a weapon known as 'tikav'

in local language. Sandeep told Shobha about

this. At that time, Shobha saw from a distance of

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10 to 15 feet that Amrya was lying outside the

house of Prakash. Prakash was in the house.

Thereafter, Shobha lodged FIR Exh. 17.

Thereafter, investigation commenced.

(c) The dead body of Amrya was sent for

postmortem. PW 7 Dr. Pawar conducted the

postmortem on the dead body of Amrya @ Amar.

According to him, Amar died on account of head

injury. After completion of investigation, the

charge sheet came to be filed.

3. Charge came to be framed against the appellant -

original accused No. 2 as well as original accused No. 1

Prakash under Section 302 r/w 34 of IPC. The accused

pleaded not guilty to the said charge and claimed to be tried.

Their 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

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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

judgment delivered by the learned Sessions Judge and the

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

the opinion that there is no merit in the appeal.

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

evidence of PW 2 Sandeep who is an eye witness to the

incident. Sandeep has stated that on the day of the incident,

he had gone to answer the call of nature. After attending the

call of nature, he was returning to his house. At that time,

he saw light in the house of Prakash Pawar, therefore, he

looked inside the house. He saw the appellant Sanjay

assaulting Amar @ Amrya with a tikav. Amar @ Amrya

sustained injury on his right side forehead. Thereafter, the

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appellant Sanjay ran away. Sandeep identified the appellant

as well as tikav before the Court. Nothing has been elicited

in cross-examination of this witness so as to disbelieve his

evidence.

6. PW 1 Shobha is the complainant in the present case.

She has stated that the appellant was residing at some

distance from her house. On 8.4.2012 i.e on the date of the

incident, she returned home at about 6.00 p.m. At about

9.00 p.m., original accused No. 1 - Prakash came to her

house and asked for dinner, hence, she went to his house

and provided him dinner. At that time, she saw Amrya @

Amar was present in the house of Prakash. Thereafter, Amra

was sleeping outside the house of Prakash. Sometime

thereafter, her son Sandeep awakened her and told her that

he wanted to answer the call of nature. After sometime,

Sandeep returned and told her that he had seen the

appellant Sanjay assaulting Amrya on the head with tikav. At

that time, she saw Amrya lying outside the house of

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Prakash. At that time, accused No. 1 Prakash was in the

house. Thereafter, she lodged FIR against the appellant as

well as Prakash.

PW 1 Shobha has further stated that when the incident

took place outside the house of Prakash, at that time,

Prakash was in his house. Thus, the evidence of Shobha

shows that immediately after PW 2 Sandeep witnessed the

incident of the appellant assaulting Amrya on the head with

tikav, Sandeep came home and narrated the incident to his

mother Shobha. Thereafter, Shobha lodged the FIR.

7. The evidence of PW 7 Dr. Pawar and the other evidence

on record shows that it was a case of homicidal death. Dr.

Pawar conducted the postmortem on the dead body of Amar

@ Amrya. Dr. Pawar noticed the following external injuries:-

(1) Right eye (blackish);

(2) Contusion seen on right fronto parietal region admeasuring 20 x 10 cm;

Dr. Pawar noticed haematoma under the scalp. He also

noticed subdural haematoma seen on right fronto parietal

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region (The portion near right eye and right ear), Intra

cerebral bleeding seen and Brain was congested and

oedematous (swelling to brain because of bleeding). In the

opinion of Dr. Pawar, the injuries were possible with tikav

(pick-axe) Article 1.

8. On going through the evidence especially that of PW 2

Sandeep, we are of the opinion that the prosecution has

proved its case against the appellant beyond reasonable

doubt, Thus, we find not merit in the appeal. The appeal is

dismissed.

[ DR. SHALINI PHANSALKAR-JOSHI, J ] [ SMT. V.K. TAHILRAMANI, J. ]

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