Madhukar S/O. Haribhau Mankar (In ... vs State Of Maharashtra Thr. Police ...
2021 Latest Caselaw 11212 Bom

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

                        CRIMINAL APPEAL NO. 112 OF 2018

  Madhukar S/o. Haribhau Mankar,
  Aged about 46 years, Occ. Private Work,
  R/o. Santoshinagar, Nagpur
  At presently Nagpur Central Jail, Nagpur.                               . . . APPELLANT

                         ...V E R S U S..

  State of Maharashtra through
  Police Station Officer,
  Hudkeshwar Police Station,
  Nagpur.                                                              . . . RESPONDENT

 ------------------------------------------------------------------------------------------------
 Ms. Sonali B. Khobragade, Advocate for appellant.
 Shri S. M. Ghodeswar, A.P.P. for respondent/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 18.08.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Through this appeal, the appellant challenges the

judgment and order dated 08.12.2016 passed by learned Additional

Sessions Judge-7, Nagpur in Sessions Trial No. 214/2014 convicting

and sentencing him in the manner stated hereinafter:-

(i) Under Section 302 of the Indian Penal Code to suffer

imprisonment for life and to pay fine of Rs. 10,000/-, in default to

undergo further rigorous imprisonment for one year.

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 (ii)             Under Section 324 of the Indian Penal Code to suffer

rigorous imprisonment for six months and to pay fine of ₹ 1,000/-, in 1,000/-, in

default to undergo further rigorous imprisonment for one month.

3. The prosecution case in brief is as under :-

Informant- Shantabai is the owner of house, wherein the

accused was residing as tenant on the 2nd Floor since October-2013.

Inspite of demand by the informant, the accused defaulted the

payment of rent and therefore, there was dispute between the

informant and the accused. On 16.01.2014, the accused promised to

pay the informant balance amount of the rent on the next day. On

17.01.2014, deceased- Amrapali, daughter-in-law of the informant,

was alone in the house on 1 st Floor. The informant heard screaming of

Amrapali at 11.00 to 11.30 a.m. and therefore, the informant rushed

to the spot of incident. The informant noticed that the accused was

giving blow on her son- Ashish (PW2) by 'Mogri' (cloth washing bat).

Deceased- Amprapali was lying in pool of blood. The accused by

giving push to the informant fled away from the spot of the incident.

The informant lodged First Information Report (Exh.22) with the

concerned Police Station, which came to be registered as Crime No.

18/2014 for the offence under Section 307 of the Indian Penal Code

(IPC). Section 302 of the IPC was added after the death of Amrapali.

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4. Vivek Padghan (PW8), Investigating Officer, carried out

the investigation by visiting the spot and drawing Spot Panchnama.

He recorded the statement of the witnesses and seized clothes of

deceased, accused and the injured. He also collected blood samples of

the accused, injured- Ashish (PW2) and deceased- Amrapali. He seized

weapon of the crime i.e. Mogri (cloth washing bat). He sent the

samples and articles for chemical analysis. After completion of the

investigation, charge-sheet came to be filed against the appellant/

accused for his involvement in the commission of crime as referred to

above. As the offence under Section 302 of the IPC being exclusively

triable by the Court of Sessions, the case was committed to the

Sessions Court for trial.

5. The charge (Exh.6) came to be framed against the accused

for offence under Sections 302 and 307 of the IPC. The accused

pleaded not guilty and trial commenced against him. From the cross-

examination and statement under Section 313 of the Code of Criminal

Procedure, the defence of the accused is of false implication.

6. During the trial, in all, prosecution examined 10 witnesses

two out of them, Pornima (PW3) and Sidnhu (PW5), were examined

as eye-witnesses. The learned Trial Judge believed the evidence led by

the prosecution and convicted and sentenced the appellant in the

manner stated above.

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7. We have heard Ms. Sonali B. Khobragade, learned

Advocate for the appellant and Shri S. M. Ghodeswar, learned A.P.P. for

the respondent/State.

8. Ms. Khobragade, learned Advocate for the appellant

submits that testimonies of Shantabai (PW1), Ashish (PW2), Pornima

(PW3) and Sindhu (PW5) does not inspire confidence and the learned

Trial Judge is not justified in convicting the appellant relying on their

testimonies. She submitted that there are material inconsistencies and

omissions in the testimonies of the aforesaid witnesses. She submitted

that it is Ashish (PW2), who assaulted deceased- Amrapali and the

accused tried to intervene in the assault and therefore, was injured.

She further submitted that the learned Trial Judge is not justified in

convicting the appellant under Section 302 of the IPC.

9. Shri S. M. Ghodeswar, learned A.P.P. for the respondent/

State supported the impugned judgment and submitted that

testimonies of Shantabai (PW1), Ashish (PW2), Pornima (PW3) and

Sindhu (PW5) inspire confidence. He submitted that ocular evidence

of the witnesses are supported by the medical evidence of Dr. Roshan

Bhiwapurkar (PW10) and the circumstantial evidence in the form of

blood-stained clothes, injury to the accused and seizure of the weapon.

He submitted that from the nature of injuries on the person of the

deceased, it is clear that the appellant intended to cause death of the

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deceased and therefore, Trial Court is fully justified in convicting the

appellant under Sections 302 and 307 of the IPC.

10. In our view, the appeal deserves to be dismissed since, we

feel that offence under Sections 302 and 307 of the IPC is made out

against the appellant by the evidence on record.

11. Insofar as the involvement of the appellant in the incident

is concerned, the same has been established beyond pale of doubt by

credible evidence adduced by Ashish (PW2) and Sindhu (PW5),

seizure of weapon, blood-stains on clothes of the accused having

human blood and no explanation for the injuries on the person of the

accused.

12. Ashish (PW2) supported the case of the prosecution by

stating that while he was going out of bathroom after taking bath, he

heard cry of his sister-in-law- Amrapali and therefore, he rushed to 1 st

floor. He stated that his mother- Shantabai (PW1) also followed him.

He stated that when he reached the house of his brother, the accused

was beating Amrapali with Mogri (cloth washing bat). The accused

gave blow of the bat on head of Amrapali and therefore, she fell down.

When Ashish (PW2) rushed to save Amrapali, the accused assaulted

Ashish (PW2) with Mogri and gave 3/4 blows on his head. Due to

which, Ashish (PW2) received serious bleeding injury.

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13. The main plank of the prosecution evidence on which the

conviction of the appellant rests is ocular account furnished by Ashish

(PW2)- brother-in-law of the deceased. We have gone through the

evidence of Ashish (PW2) and were implicitly satisfied that it inspires

confidence.

14. The manner of assault furnished by Ashish (PW2) is

corroborated by the medical evidence. The autopsy of the corpse of

deceased- Amrapali was conducted on 22.01.20214 at 1.00 p.m. and

completed on 2.00 p.m.. The autopsy was conducted by Dr. Swapnil

Akhade (PW9) alongwith Dr. Laxman Fad. Dr. Swapnil Akhade (PW9)

found following anti-moretem injuries :-

"i) Surgically stitched wound on median of eye parietal region with 5 staples applied on it. On removal of stepals lacerated would cruciate in shape of size 5.5 cm X 1.5 cm X bone deep, margin irregular bruised and brown in colour.

ii) Surgically stitched would on left parietal region situated 4.5 cm above left mastoid and 5 cm inferomedial to injury no. 1 transversely placed with 4 stitches applied on it. On removal of all stitches lacerated wound on size 4 cm X 1.2 cm X bone deep, margin bruised irregular and brown in colour.

(iii) Surgically stitched wound on left side of occipital region cruciate with 8 stitches applied on it. On removal of stitches lacerated would of size 12 cm X 3.5 cm X bond deep, margin irregular, bruised brown in colour.

iv) Surgically stitched would on centre of forehead situated 0.5 cm above medial 1/3rd of left eyebrow, vertically placed with stitched applied on it. On removal of stitches lacerated wound

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of size 3.8 cm X 0.5 cm X bone deep, margin irregular, bruised, brown in color.

v) Surgically stitched would situated 7 cm above nasion extending right side of frontal region to right parieto temporal and end to upper end of right ear 'C' shape with 50 staples applied on it. On removal of stitches margin clear cut. Suggesting of craniotomy wound underline bone of right pariatotemporal region of 5 cm absent."

15. According to Dr. Swapnil Akhade (PW9), the deceased

died on account of the injuries on head and there was fracture on

skull. Dr. Swapnil Akhade (PW9) proved post-mortem report

(Exh.87). The evidence of Dr. Swapnil Akhade (PW9) is consistence

with the post-mortem notes. He stated that subsequent investigation

revels that the deceased have sub-dural haemotoma with middle line

shift of the brain with sub falcion hemorrhage with gross cerebral

oedema on the left side of her skull. Dr. Swapnil Akhade (PW9) issued

Death Summary Report (Exh.94). Dr. Swapnil Akhade (PW9) stated

that injuries nos. 1 to 3 mentioned in Column No. 17 of the post-

mortem report is associated with the injuries mentioned in column no.

19, individually as well as collectively and were sufficient to cause

death of Amrapali.

16. Apart from the medical evidence, there are other

circumstances, which lend assurance to the evidence of Ashish (PW2).

The place of incident, namely inside the house of the deceased, given

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out by Ashish (PW2) is established by recovery of blood-stained Mogri

from the said room and by spot panchnama.

17. There are more incriminating circumstances proved by the

prosecution, which is blood of the deceased on the clothes of accused,

which is unexplained. Perusal of C.A. Report (Exh.75 & 76) revels that

blood-group of the deceased and injured Ashish (PW2) is "B", whereas

C.A. report (Exh.77) demonstrate blood-group of the accused as "A".

The C.A. report (Exh.74) makes it clear that blood on the clothes of the

accused and on Mogri i.e. recovered weapon were of blood-group "B".

The finding of blood of the deceased on the clothes of the accused is

an incriminating circumstance, which the appellant was liable to

explain. The appellant has not challenged the seizure of clothes nor

has explained blood-stain of group "B", which is blood-group of the

deceased and the injured found on his clothes.

18. It is true that with respect to the entire incident, Ashish

(PW2) is a solitary eye-witness but, the time honored rule of

appreciation of the evidence should be to weigh and not to count and

it is this rule, which is incorporate in Section 134 of the Indian

Evidence Act, 1872, which reads thus :-

"134. Number of witnesses.--No particular number of witnesses shall in any case be required for the proof of any fact."

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19. We have weighed Ashish's (PW2) statement on crucible of

truth. We find it to be only truthful. In our view, the statement of

Ashish (PW2)- injured eye-witness, is sufficient and safe basis for

sustaining conviction of the appellant. The assurance in the form of

blood of the deceased and injured on the clothes of the accused for

which no explanation is offered is forthcoming as bonus.

20. It is pertinent to note that the FIR came to be registered

within 45 minutes of the incident i.e. on 11.45 a.m. on the date of

incident, which incorporate specific role of the accused and presence of

Ashish (PW2) as mentioned therein. The Criminal Courts attach great

importance to the prompt lodging of the FIR because, the same

substantially eliminate embellishment and chances of creeping in the

prosecution story and that of false nomination of accused therein. The

reason why courts look upon a belated FIR with a needle of suspicion

is because, once there is a time-lag then the informant's imagination

and instinct of vendetta, more than often, starts running riot and

friendly advice from self-professed well-wishers starts pouring in. The

same results in false nomination of accused persons in the FIR..

21. In our view, this prompt FIR lends seal of assurance to the

veracity of Ashish (PW2) and speaks volumes regarding bonafide of

the prosecution's case. Apart from the evidence of the injured eye-

witness- Ashish (PW2), there is very clinching circumstances, which

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lends to seal of certainty to the involvement of the appellant in the

crime, is recovery of blood of deceased and injured eye-witness- Ashish

(PW2) on the clothes of the appellant.

22. For the said reasons, we feel that learned Trial Judge is

fully justified in convicting the appellant for the offence punishable

under Section 302 of the IPC.

23. Insofar as the assault on Ashish (PW2) is concerned, the

evidence on record discloses that the appellant had no intention to kill

Ashish (PW2), otherwise the appellant could have continued his

assault. Dr. Chakradhari Durugkar (PW6) admitted in his cross-

examination that the injuries suffered by Ashish (PW2) were not

sufficient, in ordinary course of nature, to cause death. Therefore,

learned Trial Judge has rightly held that prosecution failed to prove the

charge against the accused under Section 307 of the IPC.

24. In our view, since the injuries inflected on Ashish (PW2)

by the accused, which has been proved by the evidence of Sindhu

(PW5). The evidence on record shows that the injuries were simple,

which were caused by dangerous weapon like Mogri (cloth washing

bat) and therefore, prosecution has established ingredients of the

offence punishable under Section 324 of the IPC. The learned Trial

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Judge has rightly held and rightly convicted the appellant for the

offence punishable under Section 324 of the IPC.

25. In the result, we confirm conviction of the appellant for

the offence punishable under Sections 302 and 324 of the IPC and

sentence of life imprisonment awarded to him therein and dismiss this

appeal.

26. The appellant is in jail and shall serve out his sentence.

                               JUDGE                                    JUDGE




RR Jaiswal