Mahendra Loknath Waghmare vs The State Of Maharashtra
2018 Latest Caselaw 744 Bom

                                              1 / 18                      Appeal-754-10.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.754 OF 2010

    Mahendra Loknath Waghmare
    Age - 41 years, Occupation-Painting,
    R/at-Porwal Park, Shantinagar,
    Yerwada, Pune
    At present R/at - Yerwada Central Prison, 
    Pune.                                                        ... Appellant/
                                                                 Orig. Accused
                     versus

    The State of Maharashtra
    (At the instance of 
    Vishrantwadi Police Station, Pune) ... Respondent

                                           .......

    •       Mr.Daulat G. Khamkar, Advocate for the Appellant.
    •       Mr.Arfan Sait, APP for the State/Respondent.

                            CORAM      :  MRS.MRIDULA BHATKAR &
                                          SARANG V. KOTWAL, JJ.
                            DATED      :  20th JANUARY, 2018


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

1. The Appellant has preferred this Appeal challenging

the Judgment and Order dated 31/08/2010 passed by the

Additional Sessions Judge, Pune, in Sessions Case No.748/08.

By the impugned judgment the Appellant was convicted for the

Nesarikar

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offence punishable u/s 302 of IPC and was sentenced to suffer

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

default of payment of fine to suffer rigorous imprisonment for

six months. The Appellant was further convicted for the offence

punishable u/s 324 of the Indian Penal Code and no separate

sentece was passed in view of the sentence passed for the

offence punishable u/s 302 of IPC. The Appellant was acquitted

from the charges u/s 504 of IPC. The Appellant was granted set

off u/s 428 of Cr.P.C. for the period he was in jail since his arrest.

2. We have heard learned counsel Mr.Daulat Khamkar,

Advocate for the Appellant and Mr.Arfan Sait, APP for the State.

3. The prosecution case is in respect of the murder of one

Yogesh Rahul Kamble. According to the prosecution case, the

said Yogesh Kamble was murdered by the present Appellant on

04/07/2008 at about 09.30 p.m. at Shantinagar, Yerawada,

Pune. It is alleged that the Appellant assaulted the deceased

with knife on a trivial ground that the deceased had criticized

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that the Appellant was not paying his contribution for the picnic.

It is the prosecution case, that, the first informant Surendra

Gajendra Lokhande intervened when the Appellant was

assaulting the deceased and in the process, the first informant

also suffered incised wounds. Yogesh Kamble was removed to

Sethiya Hospital, Mohanwadi and then to Sassoon Hospital,

where he was declared dead. The first informant was treated in

the hospital by Dr.Ganesh Ashok Mane and thereafter he lodged

his FIR with Vishrantwadi Police Station, Pune, vide

C.R.No.223/08 at 01.00 a.m. on 05/07/2008. The Appellant

was arrested on 05/07/2008 at about 01.00 p.m. His blood

stained clothes were seized at the time of his arrest. It is the case

of the prosecution that, at the instance of the Appellant, the

murder weapon i.e. a knife was recovered on 08/07/2008 from

the bushes near bank of a river.

4. After registration of the FIR, the investigation was

carried out. Different panchanamas were conducted. The

statements of witnesses were recorded. The seized articles

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including the clothes of the deceased, the first informant and the

Appellant as well as the murder weapons were sent for chemical

analysis. After completion of investigation, the charge-sheet was

filed and the case was committed to the Court of Sessions at

Pune. The charges were framed on 06/03/2009 u/s 302, 324

and 504 of the IPC, to which the Appellant pleaded "not guilty".

5. During the trial, the prosecution examined 10

witnesses. P.W.1 Surendra Gajendra Lokhande, was the injured

eyewitness and the first informant. P.W.5 Ganesh Bhaguji Ubale,

the Uncle of the deceased, claimed to be an eyewitness. P.W.2

Dr.Milind Sharad Vable had conducted the post-mortem

examination and gave evidence about the injuries suffered by

the deceased. P.W.3 Dr.Ganesh Ashok Mane had treated P.W.1

and produced his injury certificate. P.W.4 Rahul Vishwanath

Waghmare was examined as a Pancha, in whose presence spot

panchanama was conducted. P.W.6 Krishna Ramchandra Landge

was the Pancha, in whose presence the Appellant made a

statement about his willingness to produce the murder weapon

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and in whose presence the said weapon was recovered. P.W.7 PI

Anil Piraji Ghuge had conducted the investigation from

06/07/2008. He had arrested the accused, had seized the knife,

had sent the articles to CA and had ultimately filed the charge-

sheet. P.W.8 PSI Bapurao Vishwanath Mohite had taken down

the first information report given by P.W.1 and had registered

the C.R.No.223/08 at Vishrantwadi Police Station. He had

seized the clothes of the first informant. P.W.9 PI Dilip Laxman

Mane was the first Investigating Officer, who had conducted the

initial investigation. He had collected the blood stained soil from

the spot and he had conducted the spot panchanama. He had seized

the Appellant's clothes. P.W.10 Harischand Paladu Nanak was the

panch in whose presence clothes of the accused were seized.

6. The Appellant did not examine any witness on his

behalf. In his statement u/s 313 of Cr.P.C., he had taken a

defence that a false case was filed against him and from the

tenor of his answers and the cross-examination, his defence

appears to be of total denial. After recording and considering the

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evidence and the statement of the Appellant u/s 313 of Cr.P.C.

and after hearing the arguments of both the sides, the learned

trial Judge was pleased to convict and sentence the Appellant as

mentioned above.

7. The prosecution mainly rests on the evidence of P.W.1

Surendra Lokhande and P.W.5 Ganesh Ubale, both of them were

examined as the eyewitnesses to the incident. According to

P.W.1 Surendra Lokhande, he was knowing the deceased as well

as the accused and all of them were residing in the same area.

The deceased and this witness were doing labour work and the

Appellant was doing the work of painting. On 04/07/2008 in

the evening P.W.5 Ganesh Ubale came to him and asked this

witness to accompany him to the hospital of Dr.Ganesh Mane as

the said Uable had suffered the leg injury. After his treatment,

they returned home. It is deposed by the P.W.1 that, after some

time at about 09.00 p.m. he left his house for consuming liquor

and on the way in front of Ganpati temple, he saw that the

Appellant was assaulting Yogesh Kamble with some sharp

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weapon. He further deposed that when he intervened, the

Appellant assaulted him as well and gave abuses. P.W.1 suffered

bleeding injuries on his left hand. He had seen that Yogesh had

sustained bleeding injury on his stomach. According to him, he

got scared and ran away from the spot. He further deposed that

on the way he met P.W.5 Ganesh Ubale and one Arvind

Gaikwad, who took him to Dr.Mane's Hospital. He came to know

that Yogesh succumbed to his injuries and therefore after

returning from the hospital, he lodged his FIR with the police.

He showed the spot of incident. His clothes were seized by the

police as they were blood stained.

8. According to this witness, the deceased had criticized

the Appellant for not paying his contribution for the trip and

called him a person, who splurged others' money. This,

according to the first informant, angered the Appellant and

therefore he had assaulted the deceased. In his cross-

examination he had admitted that the area near the spot of

panchanama was crowded. He denied the suggestion that he

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was standing with the Appellant in front of Somnath Laundry

and he denied the suggestion that he had left his house

alongwith the deceased for consuming liquor. He denied that

some unknown persons had caused injuries to Yogesh and that

he had lodged the FIR after consultation with others and had

implicated the Appellant falsely.

9. The learned counsel Mr.Khamkar, for the Appellant

submitted that the evidence of two eyewitnesses is inconsistent

with each other and both should be disbelieved. He further

submitted that the recovery of the knife was effected from an

open space which was accessible to all and therefore that cannot

be an incriminating circumstance. He submitted that the clothes

of the accused were not sealed properly and therefore even that

circumstance should not be held against the Appellant. He

further submitted that the prosecution has not brought out the

motive behind the offence. The P.W.1 has not given reliable

evidence as to the genesis of the incident and from the evidence

of P.W.5 Ganesh Ubale, it is apparent that, the motive was so

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insignificant that the incident could not have taken place. In the

alternative, he submitted that there was no intention to commit

murder of the deceased on the part of the Appellant. There was

no premeditation and the incident had occurred on the spur of

moment and therefore the offence would not fall under the

definition of murder.

10. As against this, the learned APP Mr.Arfan Sait,

submitted that the inconsistency between the eyewitnesses does

not go to the root of the matter and in any case P.W.1, being the

injured eyewitness, should be believed. He further submitted

that there are no infirmities in the evidence of the prosecution

witnesses and the evidence of the eyewitnesses is fully

corroborated by other circumstances of recovery of knife, seizure

of Appellant's clothes and the CA reports.

11. The prosecution also examined P.W.5 Ganesh Ubale as

another eyewitness to the incident. According to this witness,

the deceased was his nephew. On 04/07/2008, he had gone to

Dr.Mane's hospital for treatment at about 06.00 p.m. with P.W.1

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Surendra Lokhande and from the hospital he along with P.W.1,

deceased Yogesh and two others came to Somanth laundry and

stopped there. He has further deposed that even the Appellant

was with them and they were discussing and planning their trip.

It is his case that the deceased told the Appellant that he should

not come for the trip as he never used to pay. After that there

was heated exchange of words. The Appellant got annoyed and

went towards his house. P.W.1 and deceased followed him. He

has further deposed that, at that time, the Appellant assaulted

Yogesh with a knife. When P.W.1 tried to intervene, the

Appellant had assaulted him on his hand by means of knife.

According to this witness at that time he was at the laundry and

the P.W.1 came to him and narrated that the Appellant was

beating Yogesh and had assaulted P.W.1 as well. Thereafter

immediately this witness had rushed to the spot and found

Yogesh lying on the ground. P.W.5 observed that Yogesh was

lying on the spot and was having injuries on his stomach and

face and blood was still oozing from his nose. Thereafter Yogesh

was removed at first to Dr.Mane's hospital, then to Sethiya

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Hospital at Mohanwadi and then to Sasoon Hospital, where he

was declared dead. In his cross-examination he admitted that, at

the laundry itself, he, P.W.1, the deceased Yogesh and two

others consumed liquor. He denied the suggestion that he had

implicated the Appellant at the instance of P.W.1. He admitted

that prior to the incident there was no quarrel between the

Appellant and the deceased.

12. Thus, considering the evidence of these two

eyewitnesses, there is apparent inconsistency in their

depositions. According to P.W.1, he alone started from his house

for consuming liquor and on the way he saw that the Appellant

was assaulting the deceased with a sharp weapon. When he

intervened, he was also assaulted by the Appellant. At that time,

the deceased Yogesh had suffered injury on his stomach and

thereafter this witness ran away from the spot and then met

P.W.5 Ganesh Ubale and Arvind Gaikwad, who took him to the

hospital. As against this, P.W.5 has deposed that all of them

including P.W.1, deceased Yogesh and the Appellant were sitting

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together and the quarrel had started between the Appellant and

the deceased and thereafter the Appellant went towards his

house and the P.W.1 and the deceased Yogesh followed him and

thereafter the incidence of assault took place. P.W.5 Ganesh

Ubale claims that at that time he was at the laundry. Thus, he

says that P.W.1 came to him by holding his wound and then

P.W.1 told him that the Appellant was beating Yogesh and had

assaulted P.W.1 and then P.W.5 rushed to the spot. The spot

panchanama shows that spot of incident is barely 3 ft away from

the laundry where P.W.5 was sitting. If P.W.5 was present at the

laundry he could have definitely seen the entire incidence and as

a natural conduct he would have rushed to the spot where the

incident was going on. However, P.W.5 does not appear to have

rushed to the spot for intervention. On the contrary, according

to him the P.W.1 came to him and narrated that the deceased

was being assaulted by the Appellant. Thus, reading deposition

of P.W.5 entirely, we are satisfied that he has not seen the

incident. His conduct is not natural and he does not appear to be

a truthful witness.

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13. Though, we have discarded the evidence of P.W.5 as

being unreliable, we do not find such infirmity in the evidence

of P.W.1 Surendra Lokhande, the first informant. We find that

he has given sufficiently reliable evidence and has not

exaggerated his narrations. According to this witness, when he

was passing by, on the road, he saw that the Appellant was

already assaulting the deceased and the deceased had suffered

injuries on his stomach. This witness then intervened in the

quarrel, which is a natural conduct of a friend of the person who

was being assaulted. He himself had suffered incised wound on

his hand and his injuries are proved through the evidence of

P.W.3 Dr.Ganesh Mane. The evidence shows that the medical

certificate in respect of the injuries of the P.W.1 is produced at

Ex.24 and the evidence in that behalf is given by said P.W.3

Dr.Ganesh Mane. P.W.1 had suffered incised wound having

dimension of 4 x 0.5 x 0.3 cms. on his left forearm. The injury

suffered by P.W.1 corroborates his presence at the time of

incident.

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14. The learned counsel Mr.Khamkar submitted that P.W.1

has suppressed the genesis of the incident. After his evidence is

read carefully it is seen that this witness had come on the scene

when the incident had already started and immediately on

receiving injury himself he ran away from the spot. Therefore

there was no question as to why he should depose about the

genesis of the incident. Though in his evidence he says that the

cause of quarrel between the Appellant and the deceased was

because of non-payment of the contribution by the Appellant

and the deceased having criticized him on that count. At least

when the incident took place, P.W.1 could not have seen as to

why the assault had started. Since, the narration of the actual

incident given by this witness is truthful and he has not

exaggerated and he had not improved on his earlier statement

given to the Police, we are satisfied that his evidence is quite

reliable. There is nothing in his cross-examination which would

discredit him or his deposition. He had properly shown the spot

of incident and the blood was found on the spot.

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15. It can also be seen that after taking treatment for his

injuries, the first informant P.W.1 had immediately lodged his

FIR at 01.00 a.m. with the police station and there is no scope

for deliberation resulting in false implication of the present

Appellant.

16. The evidence of the P.W.1 is corroborated by other

circumstance brought on record by the prosecution. The clothes

of the Appellant were seized on 05/07/2008 under the

panchanama Ex.28. Though, Mr.Khamkar had argued that

clothes were not properly sealed, the seizure panchanama, the

evidence of P.W.9 PI Dilip Mane and the evidence of P.W.10

Harischand Nanak, the Pancha for the said seizure shows that

those clothes were sealed and labels bearing signatures of the

Panchas were affixed on them. Those clothes were sent for

analysis and were found to have blood stains of 'B' group, which

was the same group of blood which was found on the clothes of

the deceased. Therefore, this is another strong circumstance

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against the Appellant. The prosecution has brought on record

that at the instance of the Appellant, a knife was seized under a

tree near Sathe Biscuit Company. The knife was recovered from

the bushes nearby. It was wrapped in a napkin and then was

concealed there. Since it was concealed from the public, the

authorship of concealment and recovery pursuant to his

statement u/s 27 of the Evidence Act and is properly proved by

the prosecution. Even chemical analysis of this knife showed

that it had blood stains of 'B' group. Thus, even the recovery of

murder weapon is proved against the Appellant, as it was

recovered at his instance. Though it appears to be a crowded

locality the prosecution has not examined any independent witness.

However, since the evidence of the injured eyewitness is found

to be truthful, this factor cannot be held against the prosecution.

17. This leaves us with the next submission of Mr.Khamkar

in respect of the offence being a lesser offence, than the offence

of murder. In that regard, it is necessary to refer to the medical

evidence led by the prosecution in the form of P.W.2 Dr.Milind

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Vable, who had conducted post-mortem examination on the

dead body. P.W.2 had found 11 injuries, out of which three were

abrasions. The remaining 8 injuries were stab wounds, incised

wounds, caused by a sharp weapon. Injury No.5 was horizontal

stab on the right side of chest measuring 4 x 1.5 cm opening in

thoracic cavity. The corresponding internal injury showed that

the right lung was pale and had collapsed.

18. The injury Nos.6 and 7 were on the stomach and

abdomen. Injury No.6 was measuring 2 x 1 cm opening in

abdominal cavity and injury No.7 was 3.5 x 2 cms with coils of

intestine protruding through opening in abdomen. Injury No.6

showed the right lobe of liver was cut. The other injuries were

on the hand showing that they could be defence injuries. One

injury i.e. the injury No.1 was on the right side of the cheek. In

the opinion of Doctor, the injury Nos.5, 6, and 7 along with the

corresponding internal injuries were sufficient to cause death in

ordinary course of nature, individually, collectively and

associated with other injuries.

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19. Thus, it can be seen that the Appellant had assaulted

the deceased with such intention to cause death and the nature

of injuries are such that the death was certain. Looking at the

nature of the injuries, the offence falls under the definition of

murder as provided u/s 300 of the Indian Penal Code and there

is no scope to hold that it is a lesser offence. When P.W.1 had

gone to save the deceased, even he was assaulted showing the

intention of the Appellant to commit Yogesh's murder. Though

the prosecution has not clearly brought out the genesis of the

incident, through the evidence of P.W.1 his narration coupled

with the medical evidence shows that it is a clearly falling within

the definition of murder as provided u/s 300 of IPC. Therefore

we are unable to accept the submission of Mr.Khamkar that is

lesser offence.

20. As a result of the foregoing discussion, the Appeal must

fail and is accordingly dismissed.

(SARANG V. KOTWAL, J.) (MRS.MRIDULA BHATKAR, J.)