Maroti Anandrao Todase (In Jail) vs The State Of Maharashtra Thr. ...
2018 Latest Caselaw 361 Bom

                                                        1                                   jg.apeal.102.17.odt



                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR.

                            CRIMINAL APPEAL NO. 102 OF 2017

Maroti Anandrao Todase (In Jail) 
Aged about 42 years, Occu. :- Labour, 
R/o. Khandala, Tah. Wani, 
Dist. Yavatmal.                                                                                  ... Appellant

             VERSUS

The State of Maharashtra, 
Through Police Station Officer, 
Shirpur, Tah. Wani, Dist. Yavatmal.                                                          ... Respondent
-------------------------------------------------------------------------------------------------
Shri D. A. Sonwane,  Advocate for the appellant (appointed)
Shri K. R. Lule, Additional Public Prosecutor for the respondent 
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  R. K. DESHPANDE AND
                                                                 M. G. GIRATKAR, JJ.

Date of reserving the judgment : 05/01/2018.

Date of pronouncing the judgment : 12/01/2018

Judgment (Per : M.G. Giratkar, J)

Appellant assailed the judgment of conviction awarded by

learned Additional Sessions Judge, Kelapur. Appellant came to be

convicted for the offence punishable under Section 302 of the Indian

Penal Code and sentenced to suffer rigorous imprisonment for life and

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to pay fine of Rs. 2000/- in default to suffer rigorous imprisonment for

six months.

2. The case of the prosecution against the appellant in short is

as under.

(i) Deceased was cousin brother of appellant. Uncle of deceased

namely, Warlu Bhima Todase was residing at Village, Kurli. He was

issueless. Due to old age, he was unable to cultivate his agriculture

land. Therefore, deceased went to Village Kurli and started cultivating

the land of his uncle Warlu. Warlu and his wife both expired.

Thereafter, deceased Raju was cultivating their land. Appellant was not

liking the cultivation of land by deceased Raju belonging to uncle Warlu.

(ii) Appellant beat deceased at Village Kurli. Appellant was claiming

his right in the land of uncle Warlu. Due to beating and threatening by

the appellant, deceased Raju came to his parents at Khandala and

started residing there.

(iii) On the day of incident i.e. on 23-12-2013, there was lunch in the

field of complainant/father of deceased. Villagers and other relatives

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were called in the field. After completion of lunch programme in the

field, they returned to their house at about 7.00 p.m. Some of the

villagers did not come to their field for lunch, therefore, complainant

called villagers for dinner at his house.

(iv) Wife of Anil Todase and other women namely, Sangitabai and

Kiran were preparing food. Anil and his brother deceased Raju were

thinking as to how to make arrangement of dinner because there was a

dark. At that time, wife of Anil burnt torch. Accused came out from his

house. He raised objection in respect of pots and utensils kept in the

courtyard. Appellant kicked those pots and utensils. He came near Anil

and deceased Raju. Appellant scuffled with deceased Raju by caught

holding his collar. Deceased was saying as to why he was scuffling with

him. Anil tried to rescue deceased. Appellant pushed him. Appellant

stabbed knife in the abdomen of deceased. Deceased Raju collapsed.

Deceased sustained bleeding injury to abdomen and died on the spot.

His intestine was out of stomach due to the stab injury.

(v) At the time of incident, P.W. 3 Vijay Kongare rushed to the spot of

incident. He caught appellant and took him away from the spot. At that

time, big knife in the hand of appellant fell down. Father of deceased

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had been for nature's call. When he returned, he came to know about

the incident. He saw deceased lying dead. He immediately went to

Police Station, Shirpur and lodged the report. Crime was registered

against the appellant. On the same day, appellant was arrested. Spot

panchanama, seizure panchanama etc. were carried out.

(vi) At the time of spot panchanama, knife was also seized. Dead

body was sent for post mortem. The clothes, blood samples etc. were

seized. Those were sent to the Chemical Analyser, Nagpur. Statements

of witnesses were recorded on the next day of incident itself. After

complete investigation, Investigating Officer filed the charge-sheet

before the Judicial Magistrate First Class, Wani. As offence punishable

under Section 302 of the Indian Penal Code was exclusively triable by

the Court of Sessions, therefore, case was committed to the Additional

Sessions Judge, Kelapur, District Yavatmal.

(vii) Charge was framed at Exhibit 3 for the offence punishable under

Section 302 of the Indian Penal Code. Same was readover and

explained to the appellant. He pleaded not guilty and claimed to be

tried. Defence appears to be of total denial.

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(viii) The prosecution has examined following witnesses.

(1) P.W. 1 Baban Singhu Todase (Exhibit 11) (2) P.W. 2 Sangita Pramod Kongare (Exhibit 15) (3) P.W. 3 Vijay Zabaji Kongare (Exhibit 16) (4) P.W. 4 Dr. Anant Devidas Chandekar (Exhibit 18) (5) P.W. 5 Dr. Nandkishor Mulchandji Tugnayat (Exhibit 22) (6) P.W. 6 Anil Babanrao Todase (Exhibit 33) (7) P.W. 7 Vilas Zabaji Kongare (Exhibit 34) (8) P.W. 8 Ramesh Chintaman Yedshe (Exhibit 41) (9) P.W. 9 Sunil Rajeshwar Kuntawar (Exhibit 45) (10) P.W. 10 Sanjay Kisanrao Rathod (Exhibit 49) (11) P.W. 11 Mukund Kashinathrao Kulkarni (Exhibit 61) and (12) P.W. 12 Shri Sunil Krushnaji Rasekar (Exhibit 82)

(ix) Statement of accused was recorded under Section 313 of Cod of

Criminal Procedure. He denied material incriminating evidence. After

hearing the prosecution and defence, learned trial Court came to the

conclusion that appellant has committed murder of deceased Raju

Todase, therefore, appellant came to be convicted for the offence

punishable under Section 302 of the Indian Penal Code and sentenced to

suffer rigorous imprisonment for life and to pay fine of Rs. 2,000/- in

default to suffer rigorous imprisonment for six months. Hence, the

present appeal.

6 jg.apeal.102.17.odt

3. Heard learned counsel Shri Sonwane for the appellant. He

has submitted that there was dark at the time of incident, therefore, it

was necessary to conduct test identification parade. Learned counsel

has submitted that there was no test identification parade by the

investigating agency. Learned counsel has submitted that witnesses are

on enemical terms with the appellant and, therefore, they deposed

against him. He has submitted that identity of appellant is not proved,

therefore, he is entitled for acquittal.

4. Heard learned Additional Public Prosecutor Shri Lule for the

State/respondent. He has submitted that evidence of eye witnesses,

namely, P.W. 2 Sangita Kongare, P.W. 3 Vijay Kongare and P.W. 6 Anil

Todase show that appellant stabbed deceased by big knife(sura).

Appellant died on the spot of incident. Their evidence is well supported

by medical evidence. Postmortem was conducted by Dr. Tugnayat

(P.W. 5). As per his opinion, he found incised wound on left

epigastrian, oblique, involving on 11 th and 12th rib, cavity deep. It was

eliptical shape with length of 10 cm, maximum breadth was 4 cm. Injury

involving part of stomach, part of large intestine and some intestinal

loops protruded out from wound. There were multiple injuries to soft

7 jg.apeal.102.17.odt

tissues, muscles, mesuntry vessels. As per his opinion, injury was caused

by sharp object and within probably 24 hours. In his opinion, deceased

died due to extensive abdominal injury. Accordingly, he issued

postmortem report, Exhibit 25.

5. Learned Additional Public Prosecutor has submitted that

evidence of eye witnesses are well supported by medical evidence and

also Chemical Analyser's reports. At last, he submitted that judgment is

perfectly legal and correct, hence, appeal is liable to be dismissed.

6. P.W. 1 Baban Todase, father of deceased had been to

nature's call at the time of incident. When he returned back, he came to

know about the incident and saw deceased lying dead. Immediately, he

went to Police Station, Shirpur and lodged First Information Report at

about 7.30 p.m. Incident took place at about 7.00 p.m., therefore, there

is no delay in lodging the report.

7. P.W. 2 Sangita Kongare was the neighbour of deceased.

She had been to the house of deceased for cooking food at the time of

incident. As per the evidence of this witness, lunch programme was in

the field of Baban Todase. Some of the villagers did not attend the

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programme, therefore, they decided to call villagers for dinner.

Therefore, P.W. 2 Sangita was at the house of deceased for cooking

food. She heard the noise of quarrel. Therefore, she came outside of

the house. Appellant Maroti assaulted deceased Raju by big knife. She

has further stated that Raju collapsed and sustained severe injuries to

his stomach. They shouted loudly. Other persons reached there

immediately. Her brother-in-law came to the spot with other persons

and took away appellant from the spot.

8. P.W. 3 Vijay Kongare has stated in his evidence that at the

time of incident, villagers were called at the house of complainant for

dinner. He was present in his house. P.W. 2 had been to the house of

complainant for cooking food. He along with his brother and father

were sitting in Osari (varhanda). He heard hue and cry. He

immediately rushed to the spot of incident. He caught appellant and

took him away, at that time, big knife in the hand of appellant fell down

on the ground. Appellant gave him dash and ran away. He also

sustained simple injury to his hand. He saw Raju Todase lying on the

ground and blood was oozing from his stomach.

9. P.W. 4 Dr. Anant Chandekar has stated in his evidence that

9 jg.apeal.102.17.odt

he examined appellant and found injuries to his right thumb. Blood was

seen all over right palm.

10. P.W. 5 Dr. Tugnayat has stated about the postmortem on

the dead body.

11. P.W. 6 Anil Todase, brother of deceased has stated that

deceased Raju was residing at Village Kurli and cultivating the land of

his uncle Warlu. After the death of Warlu and his wife, deceased Raju

continued cultivation of the land of Warlu at Village Kurli. Raju

arranged lunch in the field. Accused had also attended that programme

at Village Kurli. Accused was saying again and again that Raju is alone

cultivating that land and he is also having share in that land. On that

count accused was threatening Raju.

12. Due to continuous threats of appellant, deceased Raju left

Village Kurli and started residing at Village Khandala. On 23-12-2013,

there was lunch programme in their field. Some of the villagers did not

attend, therefore, they arranged dinner at their house. Sangitabai, Kiran

and other ladies were preparing food. Appellant came to their courtyard

and raised objection in respect of pots and utensils kept in the courtyard.

10 jg.apeal.102.17.odt

Appellant kicked those pots and utensils. He came near to him and

Raju.

13. P.W. 6 has further stated that appellant scuffled with Raju

by catching his collar. Raju stated to appellant as to why he was

scuffling and quarreling. He tried to rescue the deceased. Appellant

pushed him and stabbed knife in the abdomen of Raju. He saw the

incident in the light of torch. Due to assault, Raju collapsed and died on

the spot.

14. P.W. 7 Vilas Kongare has stated that police prepared spot

panchanama, Exhibit 35, seizure panchanama, Exhibit Nos. 36, 37 and

38. In his presence, inquest panchanama, Exhibit 39 was prepared.

15. P.W. 8 Ramesh Yedshe has stated that police seized T-shirt

and pant of appellant as per seizure panchanama, Exhibit 42. Police

also seized blood sample vide Exhibit 43. After three days, police seized

viscera and blood samples vide Exhibit 44.

16. P.W. 9 Sunil Kuntawar has stated that he was working as

Naib Police Constable. He had taken viscera bottle to C.A., Nagpur.

11 jg.apeal.102.17.odt

17. P.W. 10 Sanjay Rathod has stated about the collection of

blood sample etc. and query report. He also carried seized property to

C.A., Nagpur.

18. P.W. 11 Mukund Kulkarni investigated the crime. He has

stated about the investigation. P.W. 11 proved the map of spot of

incident.

19. P.W. 12 Sunil Rasekar, Naib Tahsildar has stated that he

went to the spot of incident and prepared map of spot of incident vide

Exhibit 83.

20. P.W. 2 and 3 are independent witnesses. P.W. 6 is the real

brother of deceased. P.W. 6 has stated about the motive on the part of

appellant to commit murder of deceased. P.W. 1 is the father of

deceased. He has also stated about the motive on the part of the

appellant.

21. The real cause of dispute is in respect of land owned by

uncle of P.W. 6 and deceased namely, Warlu residing at Village Kurli.

As per the evidence, Warlu had no issue, therefore, deceased Raju was

12 jg.apeal.102.17.odt

called by him to cultivate his land. After death of Warlu and his wife,

deceased Raju continued to cultivate his land at Kurli. Appellant was

not liking the same. Appellant was claiming his right in the land of his

uncle. Appellant sometime beat the deceased and threatened him and

therefore, deceased started residing with his parents at Village

Khandala.

22. At the time of incident, P.W. 2 was at the house of deceased

to prepare food for the villagers. She was preparing food along with

other women. She heard hue and cry. She came out. She saw

appellant stabbing deceased by a big knife. Deceased fell down. She

along with other cried loudly. Other villagers also rushed there.

23. P.W. 3 has stated in his evidence that after hearing hue and

cry, he immediately rushed to the spot. He caught appellant. Appellant

dashed him, that time, big knife fell down from the hand of appellant.

This circumstance supports the evidence of P.W. 2 and evidence of

P.W. 6. P.W. 6 has specifically stated about the incident that appellant

came to the spot of incident, started quarrel, caught hold collar of

deceased and stabbed deceased by a big knife (sura). The intestine

13 jg.apeal.102.17.odt

came out of stomach and deceased died on the spot. Evidence of P.W. 6

is well corroborated by independent witnesses P.W. 2 and P.W. 3.

24. Oral evidence stated by P.W. 2 and P.W. 6 is also well

supported by medical evidence. As per the evidence of P.W. 5

Dr. Tugnayat, he found incised wound on left epigastrian, oblique,

involving on 11th and 12th rib, cavity deep. It was eliptical shape with

length of 10 cm, maximum breadth was 4 cm. Injury involving part of

stomach, part of large intestine and some intestinal loops protruded out

from wound. There were multiple injuries to soft tissues, muscles,

mesuntry vessels. As per his opinion, injury was caused by sharp

object and within probably 24 hours. In his opinion, deceased died

due to extensive abdominal injury. Accordingly, he issued postmortem

report, Exhibit 25.

25. P.W. 5 Dr. Tugnayat has stated that he received knife for

query along with a letter from Investigating Officer. It matches with

diagram on the query report. Injuries mentioned in the postmortem

report of deceased Raju Todase can be caused by the said object.

Accordingly, he issued query report, Exhibit 26. He collected blood

14 jg.apeal.102.17.odt

sample of deceased and clothes handed over to police.

26. Oral evidence as well as evidence of Dr. Tugnayat is also

well supported by Chemical Analyser's reports. Seized knife and other

seized articles were sent to Chemical Analyser, Nagpur. The blood

group of deceased Raju Todase was determined as blood group 'A' as

per C.A. report, Exhibit 28. Blood group of appellant Maroti was

determined as blood group 'B' as per Exhibit 29. As per Exhibit 30,

blood detected on iron knife/sura was found blood group 'A'. Therefore,

it is clear that weapon which was used by appellant was having blood of

deceased. The clothes of deceased and appellant were also stained with

blood of deceased. C.A. report, Exhibit 78 shows that clothes of

deceased and appellant were stained with blood. Clothes of deceased

and T-shirt of appellant i.e. Article No. 4 were having blood group 'A',

that is of deceased. All these evidence clearly show that appellant is the

author of crime and none else.

27. It is argued by the side of appellant that there was dark and,

therefore, test identification parade was necessary. It is pertinent to

note that witnesses have specifically stated in their evidence that there

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was torch light at the time of incident. Therefore, there is no question

of misidentification. Moreover, appellant was residing adjacent to the

house of deceased. Therefore, it cannot be said that they did not

identify the appellant specifically.

28. Prosecution has proved beyond reasonable doubt that due

to dispute between the appellant and deceased on account of agriculture

land of Warlu situated at Village Kurli, there was enmity between them.

Appellant was claiming his right in the land of Warlu situated at Village

Kurli and therefore, there was motive on the part of appellant to commit

murder of deceased.

29. There is no dispute that deceased was cultivating the land

of Warlu at Kurli. As per the evidence of P.W. 1 and P.W. 6, due to

threatening and beating by appellant to the deceased, deceased started

residing with his parents at Village Khandala. Evidence of eye witnesses

namely, P. W. 6 Anil Todase and P.W. 2 Sangita Kongare clearly show

that appellant came with an intention to kill deceased. Appellant was

having a big knife (sura). Appellant himself started quarrel, caught hold

the collar of deceased and stabbed knife in his stomach. The dimension

16 jg.apeal.102.17.odt

of injury to the stomach matched with the weapon. At the time of

stabbing, appellant also sustained injury of knife on his right thumb.

30. Nothing is brought on record in the cross-examination of

the material witnesses to disbelieve their testimony. The oral evidence

is well supported by medical evidence and C.A. reports. The prosecution

has proved the guilt of accused beyond reasonable doubt. Learned trial

Court rightly convicted appellant for the offence punishable under

Section 302 of the Indian Penal Code. There is no infirmity or illegality

in the impugned judgment. Hence, we pass the following order.

                                       ORDER


         (i)     The appeal is dismissed.  


         (ii)  R & P be sent back to the trial Court. 

(iii) Fees of the learned counsel Shri D. A. Sonwane appointed

by the Legal Services Authority is quantified at Rs. 5,000/-.

                        JUDGE                                        JUDGE

wasnik