Ashok S/O. Kisan Kannake vs State Of Maharashtra Thr. P.S.O. ...
2021 Latest Caselaw 11755 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.


                         CRIMINAL APPEAL NO. 160/2018


          Ashok S/o Kisan Kannake,
          Aged about 42 years, Occ. Labour,
          R/o. Godhani, Tq. Umred,
          Dist. Nagpur
                                                              .... APPELLANT

                                  // VERSUS //

          State of Maharashtra,
          Through PSO, PS Umred,
          Dist. Nagpur
                                                           .... RESPONDENT

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                Shri M.V. Rai, Advocate for the appellant
                Shri T.A. Mirza, APP for the respondent
 ********************************************************************

                    CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

AUGUST 25, 2021

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

1] Through this appeal, the appellant challenges the judgment

and order dated 12/08/2016 passed by the District Judge - 14 in Sessions

Trial No. 203/2015 convicting and sentencing him to suffer

imprisonment for life without remission before 20 years and with fine of

Rs. 3000/- in default to suffer imprisonment of three months for the

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offences punishable under Sections 449, 450, 302, 307 & 323 of the

Indian Penal Code.

2] The prosecution case, in short, is as under :-

On 30/01/2015, around 11:15 p.m., Police Station Umred

received a telephone call from one Vilas Darne, resident of Udasa stating

that two persons were found in injured condition in one house in the

hutment area of Udasa. Shri N.V. Wadate, PSI registered the said

information in the station diary and sent ASI Hatwar, Police Naik Arvind

Ghiye along with police vehicle driver to Village Udasa. Around 11:45

p.m., Police Naik Ghiye informed the police station on telephone that

two persons having name Chandrabhaga Gedam (PW3) and Madhukar

Gedam (deceased) were assaulted by their son-in-law Ashok Kannake by

axe on their heads and they required immediate treatment. He therefore

admitted the injured persons in ambulance to Medical Hospital,

Nagpur . The third injured person namely Pushpa Kannake (PW8) after

being treated at Government Hospital came to the police station and

lodged first information report at about 1:30 a.m. which was recorded by

lady PSI Smt. Wanjari. Pushpa (PW8) informed that her parents

Chandrabhaga Gedam (PW3) and Madhukar Gedam (deceased) resided

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at Village Udasa. It is stated that she is married with the accused Ashok

Kannake and is a resident of Village Masala after marriage. It is stated

that thereafter, they shifted to Village Godhani. It is stated that the

accused and Pushpa (PW8) have two sons. It is stated that the accused is

habitual drinker and used to beat her and had quarrels with her. It is

stated that the accused was not in the home and therefore in view of

program in the school of their children, she came to her parents house on

25/01/2015 at Udasa. It is stated that the husband (accused) also came at

Udasa on 26/01/2015 at 7:00 p.m. The accused asked Pushpa (PW8) to

come with him at Village Godhani but her mother Chandrabhaga

Gedam (PW3) told him he goes out of station whenever he wants

without telling anybody in the house and comes back whenever he wants

and therefore Pushpa (PW8) will stay with her. Chandrabhaga (PW3)

told the accused that she would call meeting of four persons and would

take decision as to whether she should send her daughter Pushpa (PW8)

to the accused or not. The accused thereafter went away.

3] Pushpa (PW8) thereafter reported that on 30/01/2015, she

and her parents had their dinner and slept. The door of the house was

not locked. Around 10:30 p.m., she heard voice of quarrel and woke up.

She found that her husband Ashok had an axe in his hand and he was

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assaulting her parents. She stood up and caught hold of the axe. Ashok

tried to assault Pushpa by the said axe, however she caught hold of it in

the air. Ashok pushed her with force, therefore she fell down on her head

and sustained bleeding injury. She came out of the house and went to

neighbour Namdeo Bhojekar and woke him up and told him that her

husband (accused) was assaulting her parents. At that time, Ashok ran

away therefrom. She went back with Namdeo Bhojekar and saw that her

parents were lying on the bed. They both had injuries on their heads and

were unconscious. At that time, Vilas Darne (PW2) came at the spot of

incident along with other people and thereafter Vilas Darne informed the

incident to Police Station Umred on phone.

4] Smt. Wanjari, Lady PSI sent Shri Sakhure, ASI who recorded

the statements of injured persons. He informed that Madhukar Gedam

died at about 3:40 a.m., and therefore Section 302 of the Indian Penal

Code was added to the crime report. The Investigating Agency carried

out the investigation by drawing spot panchanama & inquest

panchanama. The clothes of the accused were seized after his arrest. The

memorandum and seizure panchanama of the weapon was drawn and the

weapon was recovered at the showing of the accused. The blood samples

of the deceased and the accused were collected and sent for chemical

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analysis. After completion of the investigation, charge-sheet came to be

filed against the accused for his involvement in the commission of

offence referred to above. The offence punishable under Section 302 of

the Indian Penal Code being exclusively triable by the Court of Sessions,

the case has been committed to the Sessions Court for the trial. Charge

(Exhibit - 2) came to be framed against the accused for the offences

punishable under Sections 449, 450, 302, 307 & 323 of the Indian

Penal Code. As the accused pleaded not guilty, the 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.

5] During the trial, the prosecution, in all, examined 21

witnesses out of which Chandrabhaga (PW3) and Pushpa (PW8) were

examined as eye-witnesses. The learned trial Judge believed the evidence

of Chandrabhaga (PW3) as eye-witness and convicted and sentenced the

appellant in the manner as stated above.

6] We have heard learned advocate for the appellant and

learned APP for the respondent/State.

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 7]               Learned advocate for the appellant submitted that the

testimony of Chandrabagha (PW3) alleged to be the eye-witness does not

inspire confidence and the learned trial Judge is not justified in

convicting the appellant relying on the sole testimony. He submitted that

there are material inconsistencies and omissions in the testimony of

Chandrabhaga (PW3). He submitted that from the seizure panchanama

of the clothes, it appears that the clothes were not sealed after their

seizure, and therefore the incriminating circumstance of human blood on

the clothes cannot be relied upon to implicate the appellant. He

submitted that Pushpa (PW8) though examined as an eye-witness, has

not supported the case of the prosecution. He therefore submitted that

the learned Sessions Judge is not justified in convicting the appellant

under Section 302 of the Indian Penal Code.

8] Learned APP supported the impugned judgment and

submitted that the testimony of Chandrabagha (PW3) inspires

confidence. He submitted that the ocular evidence of Chandrabhaga

(PW3) is supported by the medical evidence and other circumstantial

evidence in the form of recovery of weapon and blood stained clothes.

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 the learned Sessions Judge is fully justified in

convicting the appellant under Section 302 of the Indian Penal Code.

9] In our view, this appeal deserves to be dismissed since we

feel that the offences punishable under Sections 302, 449 and 307 of the

Indian Penal Code are made out against the appellant by the evidence on

record. So far as the involvement of the appellant in the incident is

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

the credible evidence furnished by Chandrabhaga (PW3), recovery of axe

at the pointing out of the appellant & recovery of the clothes having

blood of the deceased.

10] As is evident from the ocular account furnished by the

injured eye-witness Chandrabhaga (PW3), she has narrated the manner

of assault on the deceased by the accused. She stated that the incident

took place after four days of 26/01/2015. She stated that initially, the

accused beat her husband (deceased) and thereafter he assaulted her. She

stated that the accused assaulted them by axe. She stated that she

sustained injury at the right side of her head and she was required to be

admitted to Medical Hospital, Nagpur. She identified the accused who

was present in the Court and who is her son-in-law. She accepted in her

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cross-examination that she sustained injury in the assault and therefore

she cannot see by her right eye. But she categorically denied the

suggestion that she does not know as to who had assaulted her. She also

denied the suggestion that because of her quarrel with her son-in-law, she

was taking the name of the accused. She also denied the suggestion that

in the night of the incident, the accused had not been to her house.

11] We have examined the version of Chandrabhaga (PW3) and

we find her to be implicitly truthful witness. In the first place, it should

be borne in mind that she has explained the circumstances in which she

saw the incident. Secondly, it should be remembered that the manner of

assault described by her is corroborated by the medical evidence. She

stated that the appellant inflicted axe blow on the right side of her head.

Dr. Asmita Dhurve (PW11) stated in her evidence that the patient by

name Chandrabhaga Gedam had come to casualty of hospital at about

1:15 a.m. in the night between 30/01/2015 and 31/01/2015 and she

examined her. She stated that Chandrabhaga was assaulted resulting in

head injury, with glassgo coma scale 10/15. She also stated that

Chandrabhaga suffered injury on the eye and she also had head injury

and therefore CT Scan was advised. She stated that from CT Scan report,

it was found that it was the case of head injury with extradural

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haemorrhage with haemorrhagic contusions multiple intracranial

fractures and blood density collection multiple sinuses. She also stated

that the grievous condition of Chandrabhaga was that the patient was not

able to speak herself and was having severe intraparelchymal injuries.

The said evidence shows that Chandrabhaga (PW3) suffered serious

injuries in the assault and therefore is an injured eye-witness.

12] The autopsy surgeon Dr. Shivanand Karmakar (PW7) who

conducted the post-mortem of Madhukar Gedam (deceased) found six

external injuries and eight internal injuries on his body. He stated that

the external Injury Nos. 1 and 2 of Column No. 17 of post-mortem

report with internal injuries mentioned in Column No. 17 were

individually sufficient to cause death of the deceased. Dr. Shivanand

Karmakar (PW7) proved the contents of post-mortem report

(Exhibit 61). The accused has not challenged the evidence of

Dr. Shivanand Karmakar (PW7) and also the fact that the death of

Madhukar Gedam was homicidal. The Injury Nos. 1 and 2, out of six

external injuries of Column No. 17, read as under :-

"i] Chop wound present over left side of forehead, 3 cm. Above left eyebrow, margins bruished of size 4 cms x 1.5 cm x cavity deep, transversely oblique, underlying bone fractured.

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ii] Chop wound present over left side of forehead 1 cm. Below anterior end of injury No. 1, margins bruished of size 1.5 cm x 0.5 cm x cavity deep, vertically oblique with right end of wound deep and left end shallow."

13] Seven out of eight internal material injuries were as follows:-

"i] Underscalp haematoma present over both fronto pareto, left tempero occipital area of size 20 cms x 16 cms, reddish. ii] Communited fracture present over left frontal bone of size 3 cms x 3 cms. The piece of bone fractured in to pieces corresponding to injury No. 1 and 2 of column No. 17 with linear fracture radiating from it towards right temporal area, 8 cms.

iii] Fracture linear in left middle craneal fossa, 4 cms. Transversely oblique.

iv] Meninges : Duramater torn at the left frontal region corresponding to injury No. 1 and 2 of column No. 17. v] Extradural haematoma present over both frontal and left temporal region with about 60 cc blood and blood clots, reddish.

vi] Subdural haematoma present over both frontal and left temporal region with about 60 cc blood and blood clots, reddish.

vii] Brain : Chop wound present over left frontal region 0.5 cms x 0.5 cms x 0.5 cms. Corresponding to injury No. 2 of column No. 17."

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14] We feel that the solitary statement of Chandrabhaga (PW3)

is itself sufficient to fix the involvement of the appellant in the crime.

After all, it is a time honoured principle that the evidence should be

judged and not counted. It should be borne in mind that Section 134 of

the Evidence Act provides that "no particular number of witnesses shall

in any case be required for the proof of any fact".

15] However, we have bonus evidence against the appellant in the

form of recovery of his blood stained clothes and recovery of axe at his

pointing out. Vilas Darne (PW2) is an independent witness. He stated

about the date and place of memorandum of statement and recovery of

panchanama. He identified the memorandum of statement (Exhibit 17)

and recovery of panchanama (Exhibit 18), signatures of the accused on

both of them as well as signatures of panchas including him and the

Investigating Officer. He also identified the weapon axe and quilt which

was seized. He stated that the axe was recovered at the pointing out of

the accused which was hidden below the leaves of Palas tree. It is

pertinent to mention that although he was subjected to lengthy cross-

examination, nothing was extracted therefrom which would make us

doubt about his credibility. It needs to be mentioned here that the clothes

of the appellant i.e. shirt and pant along with the clothes of deceased

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were sent to chemical analysis and human blood was found on the

clothes of the accused. In our view, the circumstance that the blood

stained shirt and pant was recovered from the person of the appellant on

which chemical analyst found human blood is an incriminating

circumstance. The accused in his statement under Section 313 of the

Code of Criminal Procedure has not given any explanation about the

human blood on his clothes.

16] It is submitted on behalf of the appellant that neither the

clothes were sealed nor there is any record that the clothes were kept in

property room and chances of tampering of it are not ruled out. It is

pertinent to note that Vaishali Sahare (PW1) has categorically stated in

her evidence that she had seen the accused immediately after the incident

along with the blood stained clothes. The accused has not brought any

material on record to show that Vaishali (PW1) had any enmity with the

accused. She is an independent witness and therefore her evidence needs

to be believed. Therefore, in the facts and circumstances of the present

case even if the clothes were not sealed initially, we cannot conclude that

the prosecution had opportunity to tamper with the evidence.

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 17]              The prosecution has brought on record the motive which is

proved in view of the cross-examination of Chandrabhaga (PW3)

wherein it is proved that the accused was insisting that her wife Pushpa

(PW8) should be sent along with him but Chandrabhaga (PW3) refused

to let her go on 26/01/2015. It is also brought on record that the accused

was staying out of his home for 15 days and on 26/01/2015, he caught

hold of the hand of Pushpa (PW8) and was forcing her to go along with

him. It is stated that Chandrabhaga (PW3) told him that the accused was

staying out of home since Sankranti and she would do justice in presence

of four persons and therefore Pushpa (PW8) wife of the accused did not

go with the accused, which in our opinion, infuriated the accused to

assault on the deceased and Chandrabhaga (PW3).

18] In our view, the learned Judge is fully justified in convicting

the appellant for the offence punishable under Section 302 of the Indian

Penal Code. The evidence of eye-witness Chandrabhaga (PW3) which

we have accepted candidly clearly show that the appellant intentionally

inflicted axe blow on the head of the deceased. The evidence of autopsy

surgeon Dr. Shivanand Karmakar (PW7) shows that two chop wounds

present over the left side of forehead along with internal injuries were

stated to be sufficient to cause death of the deceased. In our view, the act

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of the appellant intentionally inflicting blow on the forehead of the

deceased and causing injuries which could have caused death would be

covered by third clause of Section 300 of the Indian Penal Code.

19] An analysis of third clause of Section 300 of the Indian Penal

Code would show that for its application, two requirements have to be

satisfied namely "(a) there should be intention to inflict a bodily injury

(it should not be accidental); and (b) the injury inflicted should be

sufficient in the ordinary course of nature to cause death."

20] Since the evidence of Chandrabhaga (eye-witness) shows

that the appellant intentionally inflicted axe blow on the forehead of the

deceased and the testimony of the autopsy surgeon makes it clear that the

injuries sustained by the deceased were the cause of death, both the pre-

requisites are satisfied. In addition to the above factors, the prosecution

has proved that the accused has caused the assault on the persons who

were sleeping which shows that the attack was intentional and not

provocative. The weapon used by the accused is axe which is a dangerous

weapon. The attack by the appellant was on vital part of the body which

proves intention to kill. Considering the age of the deceased and

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Chandrabhaga (PW3), the appellant had sufficient knowledge that the

attack by axe would cause their death.

21] For the aforesaid reasons, we pass the following order:-

                  (a)     The criminal appeal is dismissed.

                  (b)     We confirm the conviction of the accused for the

offences punishable under Sections 449, 450, 302,

307 & 323 of the Indian Penal Code.

(c) The appellant is in jail and shall serve out his sentence.

                   (JUDGE)                                     (JUDGE)




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