Kisan Baburao Vetal vs The State Of Maharashtra
2017 Latest Caselaw 7546 Bom

                                           1 / 14                    APEAL-1208-08.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO.1208 OF 2008

    Kisan Baburao Vetal
    Aged about 34 years
    Residing at Wadar Lane
    Village Malthan, Taluka Shirur,
    District - Pune
    presently in custody in the
    Yerwada Central Prison,
    Yerwada.                                                  ... Appellant/
                                                              Orig. Accused

                     versus

    The State of Maharashtra
    (At the instance of 
    Shirur Police Station)                                    ... Respondent

                                       .......

    •       Mr.Yashpal Thakur Appointed Advocate as per Courts order 
            dated 07/09/2017.
    •       Mr.H.J. Dedhia, APP for the State/Respondent.

                            CORAM         :  A.A. SAYED &
                                             SARANG V. KOTWAL, JJ.
                            RESERVED ON   :  13th SEPTEMBER, 2017
                            PRONOUNCED ON :  26th SEPTEMBER, 2017


    JUDGMENT (PER : SARANG V. KOTWAL, J.) :

1. By the present Appeal the Appellant has challenged the

Nesarikar

2 / 14 APEAL-1208-08.odt

Judgment and Order dated 01/06/2007 passed by the Ad-Hoc,

Additional Sessions Judge, 14, Pune, in Sessions Case

No.152/06. By the said impugned judgment and order, the

Appellant was convicted for the offence punishable u/s 302 of

the Indian Penal Code and was sentenced to suffer

imprisonment for life and to pay a compensation of Rs.10,000/-

to the wife and legal heirs of the deceased Khandu @ Navnath

Tukaram Vetal and in default of payment of compensation to

suffer simple imprisonment for one year. The Appellant was also

convicted for the offence punishable u/s 307 of the Indian Penal

Code and was sentenced to suffer simple imprisonment for a

term of five years and to pay a fine of Rs.5,000/- and in default

of payment of fine to undergo further simple imprisonment for

six months. Both these sentences were directed to run

concurrently and the Appellant was given benefit of set off u /s

428 of Cr.P.C. for the period for which he was in custody till

conclusion of the trial.

2. The prosecution case pertains to the murder of one

3 / 14 APEAL-1208-08.odt

Khandu @ Navnath Tukaram Vetal. According to the

prosecution case, on 11/09/2005, between 08.00 to 08.30 p.m.,

in the premises of Hari Om Laundry, at Village Maldha, Tal-

Shirur, Dist-Pune, the Appellant caused murder of Khandu @

Navnath Tukaram Vetal by stabbing him with knife. In the same

transaction he assaulted one Ramesh Pandurang Vetal causing

bleeding injury on the neck and thus the Appellant was charged

and convicted for both the offences u/s 302 and 307 of IPC.

3. The prosecution case is that, in the morning on

11/09/2005 at about 10.00 a.m., the Appellant had assaulted

one Vilas Vetal who was brother of the deceased Khandu.

Therefore Khandu wanted to question the Appellant about the

said assault. Khandu went to the laundry where the Appellant

was present. At that time deceased Khandu was assaulted with

knife by the Appellant. The prosecution evidence of P.W.3

Dr.Rajendra Digambar Shinde shows that Khandu had suffered

12 incised wounds out of which, five injuries were on the chest

causing 3 cuts on the right lung. The cause of death was 'Cardio

4 / 14 APEAL-1208-08.odt

respiratory arrest due to haemorrhagic shock due to multiple

stab injuries.' The prosecution case is that, while P.W.6 Ramesh

Pandurang Vetal tried to look inside the laundry as to what was

happening, even he was assaulted by the Appellant with the

same knife causing incise wound of the dimension of 3 x 2 x 1

cm over the neck. Thereafter the Appellant ran away from the

spot. Ramesh Vetal was removed to the hospital. People

gathered at the spot. P.W.2 Vilas Tukaram Vetal, who was

brother of the deceased, was informed. He came to the spot. He

informed the police and his statement was treated as the FIR. As

per the prosecution case, the Appellant himself approached the

police on the next day with the blood stained knife and clothes

and was immediately arrested. The other injured Ramesh was in

the hospital for 3 to 4 days taking treatment. Even his statement

was recorded. The investigation was carried out and the charge-

sheet was filed. The case was committed to the Court of

Sessions. The Appellant pleaded not guilty to the charges framed

against him. His defence which he had put through written

statement u/s 313 of Cr.P.C. is that, on that day he was working

5 / 14 APEAL-1208-08.odt

as an Electrician and had suffered injury on his index finger.

According to him he heard hue and cry near a Pandal where he

saw some unknown person running away from the spot with a

knife in his hand. It is his case that, he chased that unknown

person for 1 ½ kms but that unknown person still ran away.

However, the knife which he was carrying fell down. The

Appellant picked up the knife and went to Shirur Police Station.

But police did not help him and on the contrary, on the next day

he was arrested in the crime.

4. During the trial, the prosecution examined 11

witnesses. P.W.1 Nilesh Dattatraya Mahamuni, was passing by,

on the road near the laundry. He had heard shouts from the

laundry and he had seen the Appellant inflicting blow on the

neck of Ramesh by means of knife. P.W.2 Vilas Vetal, as

mentioned earlier, had lodged FIR and he deposed about the

incident of altercation which had taken place in the morning

between him and the Appellant. P.W.3 Dr.Rajendra Digambar

Shinde had conducted the post-mortem examination and had

6 / 14 APEAL-1208-08.odt

observed the injuries as mentioned earlier. P.W.4 Dr.Sohel Kazi

had treated the injured Ramesh Vetal and has deposed about the

injury caused to Ramesh Vetal on his neck. P.W.5 Babamiya

Gulab Shaikh was the Panch for inquest panchanama. P.W.6

Ramesh Pandurang Vetal is the injured eyewitness who had seen

the incident of assault on the deceased. He himself was attacked

by the Appellant. P.W.7 Bhanudas Raj Bhurav was the Pancha

for the spot panchanama, who has proved the spot panchanama

Ex.22. P.W.8 Satish Dattatraya Bodre was the Pancha in whose

presence the clothes of the accused and knife were seized. P.W.9

Dr.Meena Balwant Savale was the Doctor who has deposed

about the injury suffered by the Appellant. It was a single

lacerated wound, on his index finger measuring about 1.5 cm x

1.5 cm. P.W.10 Gulab Kushaba Temgire, was the Pancha in

whose presence the clothes of the deceased were seized by the

Police. P.W.11 PSI Shankar Hanuman Kengar had conducted the

investigation. P.W.12 Sakharam Abaji Dalvi, was the Assistant

Sub-Inspector, in whose presence the clothes of the deceased

were seized. Apart from this, the prosecution has relied on the

7 / 14 APEAL-1208-08.odt

C.A. Report. The C.A. Report shows that the clothes of the

deceased and of the accused as well as the knife carried by the

Appellant was having human blood of 'B' Group.

5. We have heard learned Counsel Mr. Yashpal Thakur

for the Appellant and Mr. H.J. Dedhia, APP for the State.

6. As can be seen, the prosecution case is put forth mainly

through the evidence of the injured eyewitness P.W.6 Ramesh

Vetal. According to him, the deceased Khandu was his cousin. In

the evening of 11/09/2005 Khandu told him about the quarrel

between the Appellant and Vilas Vetal and he had suggested

that, they should go to the Appellant to question him about the

quarrel. Both of them went towards Appellant's laundry. At that

time Khandu entered the laundry and the P.W.6 remained

outside. This witness has further deposed that, when he opened

the door; he saw Khandu was lying on the floor, and the

Appellant was sitting on his person and giving knife blows on his

stomach and chest. The Appellant gave knife blow on this

8 / 14 APEAL-1208-08.odt

witness's throat. At that time, the passers by had reached there.

Therefore the Appellant ran away from the spot. Khandu was

removed to the hospital. This witness Ramesh Vetal was referred

to Sasoon Hospital. He was admitted to Sasson Hospital and his

statement was recorded after three days wherein he informed

about the incident to the police.

7. The learned Counsel Mr.Thakur submitted that his

cross examination shows that there was an important omission

from the Appellant's statement before the Police in respect of the

main facts, which he had deposed before the Court. This witness

has deposed that he had stated before the police that when he

opened the door, he saw that Khandu was lying on the floor and

the Appellant was sitting on his person and was inflicting the

blows of knife on Khandu. This witness has further deposed that

he could not assign any reason as to why this fact was not

recorded by the police in his statement. According to Mr.Thakur

this was an important omission, which shows that the witness

had not seen the incident as claimed by him. Unfortunately

9 / 14 APEAL-1208-08.odt

during trial the defence on behalf of the accused/Appellant, no

question was put to the Investing Officer P.W.11 PSI Shankar

Kengar to prove this omission. We are unable to accept

Mr.Thakur's submissions that this witness had not seen the

incident. In any case, even if it is assumed that this witness has

not stated before the Police that he had seen the Appellant

sitting on the person of the deceased and stabbing him, the fact

remains that his evidence is consistent with the fact that, he and

the deceased Khandu had gone to the laundry and Khandu had

entered the laundry and when this witness opened the door, he

saw the deceased Khandu lying injured on the floor and the

Appellant had attempted to cause serious injury on the person of

this witness. Therefore leaving aside the omission, even

otherwise we are convinced that this witness is a truthful

witness and had seen the accused and the deceased together,

with the accused carrying a knife and the deceased lying in

injured condition on the floor and even this witness was

attacked by the accused. The fact remains that the Appellant had

assaulted the deceased with knife and he also assaulted this

10 / 14 APEAL-1208-08.odt

witness Ramesh Vetal. We do not find any infirmity in the

evidence of this witness to term this witness as an unreliable witness.

8. Even P.W.1 Nilesh Mahamuni, has corroborated the

evidence of P.W.6 Ramesh Vetal to the extent that this witness

had seen the Appellant assaulting P.W.6 on his neck. This

witness P.W.1 Nilesh was passing by the road and on hearing

shouts from the laundry he went near the laundry and he

witnessed the incident of the Appellant inflicting knife blow on

the neck of Ramesh Vetal. Thus, the incident is corroborated on

material aspect by this witness, who was an independent

eyewitness. Thereafter this witness had seen the deceased

Khandu lying on floor inside the laundry.

9. As per the prosecution case, the Appellant himself

went to the police station with the murder weapon. At that time

his clothes and the knife were seized. Though the Appellant has

tried to explain in what circumstances he went to the police

station, it does not appear to be truthful and trustworthy.

11 / 14 APEAL-1208-08.odt

10. In this behalf P.W.11 PSI Shankar Kengar and P.W.8

Satish Bodre were examined to prove this fact of his arrest. We

do not find any infirmity in the evidence to raise any doubt

about such seizure. As mentioned earlier, the clothes of the

accused as well as the knife do show presence of human blood

of 'B' group. This is another circumstance against the Appellant.

11. The prosecution has brought on record the injury

suffered by the Appellant around the same time when the

incident had occurred. The Appellant has tried to explain this

injury by taking a defence that he had suffered this injury when

he was working as an Electrician. However, this explanation

does not appear to be truthful and it can be safely held that the

injury was caused during the incident itself.

12. Mr.Thakur further submitted that looking at the nature

of the injury suffered by P.W.6 Ramesh Vetal, it cannot be said

that the Appellant had committed the offence punishable u/s

12 / 14 APEAL-1208-08.odt

307 of IPC as there was no intention of commission of murder.

We are of the view that since a knife injury was caused on the

neck, there is no reason to infer that the Appellant did not

intend to commit murder of the P.W.6. Only because people had

gathered at the spot, and he wanted to escape, further damage

was not caused, but intention to commit murder was clear.

Therefore the conviction u/s 307 for the assault on P.W.6, recorded

by the trial Judge was proper. Mr.Thakur further submitted that

there was no premeditation on the part of the Appellant and the

incident had occurred on the spur of the moment and this case

falls within the fourth exception as mentioned u/s 300 of IPC.

While it is true, that, there doesn't appear to be premeditation

because the deceased himself had gone to the laundry of the

Appellant; however, it cannot be said that the Appellant had not

taken undue advantage and had not acted in a cruel manner.

The Appellant had inflicted 12 incised wounds with knife on the

person of the deceased, out of which, five injuries were grievous

by themselves. P.W.3 Dr. Rajendra Shinde has opined that those

five injuries i.e. the injury Nos.2, 6, 7, 8 and 9 as mentioned in

13 / 14 APEAL-1208-08.odt

the Post-Mortem report, were grievous and were sufficient in the

ordinary course of nature to cause death. Thus, these repeated

blows causing grievous injuries show that the Appellant had

acted in a cruel manner and stabbing the deceased who was in a

helpless condition and therefore the Appellant had taken undue

advantage. The learned Counsel Mr.Thakur has relied on the

case of Arjun and Ors. Vs. State of Chhattisgarh, reported in

AIR 2017 SC 1150. In this case the Hon'ble Supreme Court has

observed that the injuries as inflicted in the post-mortem report

suggest that the Appellants therein had not taken undue

advantage or had acted in a cruel manner and therefore that

case falls within the explanation of section 300 of IPC.

13. In the present case before us we are of the view that

the Appellant had taken undue advantage and had acted in a

cruel manner. Further more, his intention to commit murder is

further indicated by his murderous attack on P.W.6, when the

Appellant had inflicted knife blow on his neck. Therefore we are

of the view the present case falls within the definition of murder

14 / 14 APEAL-1208-08.odt

u/s 300 of the IPC and it is not a case falling within 4 th exception

u/s 300 of IPC.

14. With the result, as there is no merit in the Appeal,

following order is passed :

ORDER

1. The Appeal stands dismissed.

2. Mr.Yashpal Thakur is appointed as an Advocate in this case. We direct High Court Legal Aid Services Authority to pay him Rs.10,000/- for his efforts in assisting the Court during hearing of this Appeal.

           (SARANG V. KOTWAL, J.)                (A. A. SAYED, J.)