Waghya @ Manoj S/O. Bhaiyalal Uke ... vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 12177 Bom

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

                        CRIMINAL APPEAL NO.343/2018

 1. Waghya alias Manoj Bhaiyalal Uke,
    aged about 29 years, Occ. Labourer,

 2. Sandip s/o Bhaiyalal Uke,
    aged about 28 years, Occ. Labourer,

      Both r/o Station Fail, Wardha,
      Dist. Wardha.                                           .....APPELLANTS
                        ...V E R S U S...

      The State of Maharashtra,
      through P.S.O. Wardha (City),
      Tq. Dist. Wardha.                                       ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. Amit Band and Mr. Ashwin Wasnik, Advocates for appellants.
 Mr. Sanjay Doifode, A.P.P. for respondent-State.
 -------------------------------------------------------------------------------------------
                                CORAM:- V. M. DESHPANDE AND
                                               AMIT B. BORKAR, JJ.

DATE:- AUGUST 31, 2021

ORAL JUDGMENT (Per: V. M. Deshpande, J.)

1. This appeal is directed against judgment and order of

conviction passed by learned Sessions Judge, Wardha dated

09.05.2018 in Sessions Case No.115/2015. By the impugned

judgment, the learned Sessions Judge found both the appellants

guilty of committing the offence punishable under Section 302

read with Section 34 of the Indian Penal Code (IPC) and,

therefore, directed them to suffer imprisonment for life and to pay

a fine amount of Rs.5,000/- by each of them with default clause.

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2. We have heard Mr. Amit Band with Mr. Ashwin

Wasnik, learned counsel for appellants and Mr. Sanjay Doifode,

learned A.P.P. for respondent-State. Learned counsel for both the

appellants argued identically.

3. The main plank of their submission is that Jayshri

Waghmare (PW4), who is examined as an eye witness in this

prosecution case, is not an eye witness and, in fact, she is planted

by the police. Their another submission is that if evidence of

Jayshri (PW4) is discarded then there is no evidence to connect

the appellant in the crime in question. They are also making a

submission that the prosecution has not proved motive for

committing murder of Pintu, the deceased. Alternatively, it is

their submission that, in any case, role attributed to appellant

no.2-Sandip is that he assaulted by fists and kicks. Therefore, he

cannot be held guilty for the offence under Section 302 of the IPC.

So far as appellant no.1-Waghya is concerned, their submission is

that the incident has occurred in a spur of the moment, therefore,

at the most, he could be convicted for the offence punishable

under Section 304-I of the IPC.

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4. Per contra, learned A.P.P. vehemently opposed these

submissions. From reading of the evidence of Jayshri (PW4), he

submitted that it cannot be said that she is a planted witness. He

also submitted that the Chemical Analyser's (CA) report

corroborates the prosecution case inasmuch as the blood having

group "B" was found on the clothes of both the appellants. The

said blood group belongs to the deceased. He, therefore,

submitted that the appeal be dismissed.

5. Wheels of criminal justice system were set into motion

by Narayan Sonwane (PW1), father of the deceased. On

29.07.2015, he came to police station and lodged his report

stating therein that he came to his house after finishing his duty

and he was resting. In between 09.00 to 09.15 p.m., one boy

came to his house and informed that his son Pintu is assaulted

near Motghare Bichayat Kendra by one Waghya and his brother

and he has been taken to Civil Hospital, Wardha. Therefore, he

and his wife Suman came to the Government Hospital. From

there, as per the FIR, he was referred to Sewagram and he was

taken in ambulance. When he has accompanied Pintu, Pintu made

oral dying declaration to him that both the appellants assaulted on

him when he asked them to give side.

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6. Murlidhar Burade (PW9) is the investigating officer of

crime No.348/2015, which was registered on the basis of the

report lodged by Narayan (PW1). He has conducted the entire

investigation. During the investigation, he has seized various

articles including the articles from the places which were shown

by both the accused persons when their statements under Section

27 of the Evidence Act were recorded, when they were in Police

Custody Remand. He also recorded statements of witnesses. He

sent the muddemal to the CA. His evidence would show that after

completion of the usual investigation, he filed final report in the

Court of learned jurisdictional Magistrate who found that the

offence is exclusively triable by the Court of Sessions. He,

therefore, committed the same to the Sessions Court. After the

case was committed to the Sessions Court, it was registered as

Sessions Case No.115/2015. Learned Additional Sessions Judge

framed the charge against both the accused. Both the accused

abjured their guilt and claimed for their trial.

7. In order to bring home guilt of the accused, the

prosecution has examined in all nine witnesses and also relied on

various documents duly proved during the course of trial. After

the prosecution tendered pursis of closure, both the appellants

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were examined by the learned trial Judge under Section 313 of

the Code of Criminal Procedure. Not only that, they examined

one defence witness Sanjay Gharde (DW1).

After a full dress trial, the learned Sessions Judge

found that the prosecution is successful and, therefore, passed the

impugned judgment.

8. The investigating officer, in presence of pancha witness

Sanchin Suryawanshi (PW3) has done inquest over the dead body.

Inquest panchanama is at Exh.-50. Various injuries were found

while conducting the inquest.

The dead body was sent to Mahatma Gandhi Institute

of Medical Sciences (MGIMS) for post mortem. Post mortem was

conducted by Dr. Pavin Zopate (PW8). Unchallenged version of

this autopsy surgeon shows that till that time he has conducted

more than one thousand post mortems. Thus, it is very clear that

the doctor was very experienced doctor. His evidence would

show that he along with one Dr. Ashish Salankar have conducted

autopsy over the dead body of Pintu. The post mortem started at

11.40 a.m. and completed at 1.50 p.m. on 30.07.2015. He found

following external injuries :

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"i) Puncture wound size 2 cm x 1 cm x muscle deep (insertion of probe to assess the depth is upto the muscular intecostals structure between 5th and 6th ribs) oblique in direction over right side of chest 13 cm from medical end of right clavicle in 6th intercostals space. Both angles are acute, margins are clean cut, reddish in colour.

ii) Puncture wound size 2 cm x 1 cm x muscle deep (insertion of probe to asses the depth is upto the bone of 8th rib) oblique in direction over right side of chest 15 cm from medical end of right clavicle over 8th rib. Both angles are acute margins are clean cut, reddish in colour.

iii) Stab wound size 2 cm x 1 cm x parenchyma deep (insertion of probe to asses the depth is from the intercostals space between of 8th and 9th ribs upto soft tissues of liver) oblique in direction over right side of chest 17 cm from medical end of right clavicle over 8th rib. Both angles are acute margins are clean cut, reddish in colour.

iv) Puncture wound size 2 cm x 1 cm muscle deep (insertion of probe to asses the depth is upto the intercostals space between 3rd and 4th rib) oblique in direction over right side of chest 5 cm from

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medical end of right clavicle over 4th intercostals space. Both angles are acute, tailing of 3 cm is seen directing towards the nipple, margins are clean cut, reddish in colour.

v) Puncture wound size 2 cm x 1 cm x muscle deep over left side of public bone 48 cm from medial end of left clavicle oblique in direction over left public bone. Both angles are acute, margins are clean cut, reddish in colour.

vi) Puncture wound size 2 cm x 1 cm x muscle deep over right lateral side of lower abdomen 40 cm from medial end of left clavicle oblique in direction over lower abdomen. Both angles are acute, margins are clean cut, reddish in colour.

vii) Puncture wound size 2 cm x 1 cm x muscle deep over right lateral side of right forearm 4 cm from lateral olecranan process of radius of right hand oblique in direction over right forearm. Both angles are acute, margins are clean cut, reddish in colour.

viii) Linear abrasion of 4 cm in length over right side of neck 4 cm above the medial end of right clavicle reddish in colour.

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        ix)            Abrasion of 4 cm X 2 cm over right side

of back cm in length over right side 40 cm below the tip of right shoulder joint reddish colour."

9. Various internal injuries were also found when the

dead body was opened during the course of autopsy by autopsy

surgeon. The doctor has also pointed out corresponding injuries

when he examined internal injuries, as it could be seen from his

evidence as under:

"3. Injuries found on the persons of deceased were antemortem. During internal examination, we found on opening of scalp subgaleal hematoma was present involving right and left occipito parietal and temporal region. On thorax fracture of 8 rib of right side of chest is seen on anteromedial aspect. Effusion of blood was seen in intercostals spaces of right side of chest in the region of fracture and 6th, 9th and 4th intercostal spaces is correspond to injury no.1, 2 & 3 found on external examination. Around 300 ml of frank blood was seen in right side of thoracic cavity. Pleura showed tear of 0.8 long parentchyma deep on anteromedial side of lower robe of right side of lung which correspond to the fracture of 8th right side of chest. Both lungs were pale, laceration of size 0.8 cm. parenchymal deep seen over anteromedial aspect of lower rub of left lung.

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4. On internal examination of abdomen, we found puncture would of 2 cm. X 1 cm. X muscle deep over left lateral side of lower abdomen, which was corresponding to the injury no.6 found on external examination. All organs were in situ round 300 ml. Of blood was seen in the right frank region of abdomen.

5. On internal examination of liver, it was pale, stab wound of 2 cm. X 0.5 cm. X 4 cm. deep over lateral lobe of liver which correspond to injury no.3 found during external examiantion. On cut section hepatic parenchyma was pale, the depth of wound was 4 cm. over the lobe, Gall bladder was partially filled with dark, green bile. The large bile ducts were patent and non dilated.

6. During post-mortem, we preserved viscera, blood sample and cloths in sealed condition. Cause of death hemorrhage and shock in a case of assault."

10. Dr. Zopate proved post mortem report, which is at

Exh.76. According to Dr. Zopate, the injuries found in the post

mortem were sufficient to cause death even if moderate force is

applied. From the inquest panchanama, post mortem report,

evidence of Dr. Zopte, it is clear that Pintu died unnatural death

and it was a homicidal one.

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11. According to the prosecution, appellants are the

persons who are responsible for the homicidal death of Pintu

whereas the learned counsel for the appellants would submit that

there is no evidence by which they could be implicated as culprits.

12. Learned counsel for the appellants would submit that

there was no motive on the part of the appellants to commit

murder of Pintu. From examination of the prosecution witnesses,

it is clear that the prosecution could not point out any motive.

Whether that is sufficient to acquit the appellants is the question

that is posed to this Court being decided. The law is well

crystallized. It would be beneficial for us to refer to the

authoritative pronouncement in Mani Kundaswami Shettiyar Vs.

The State of Maharashtra; reported in 2014 ALL MR (Cri) 3436,

wherein a coordinate bench of this Court, by keeping reliance on

the apex Court decision in Mulakh Raj Etc. Vs. Satish Kumar &

Ors.; reported in 1992 SC 1175, held that when there is an eye

witness account and the eye witnesses are very clear in respect of

the assault, the motive loses its importance. Therefore, we will

have to examine whether there is any eye witness account in the

prosecution case or not.

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13. Number of eye witnesses does not matter, what is

important is the quality of the evidence of the witness who gives

eye-witness account. If the evidence of the eye witness inspires

confidence in the judicial mind and if it is found that evidence of

such a witness is trustworthy and it has passed the test of

searching cross-examination then the evidence of the solitary eye

witness is sufficient to record the finding of guilt.

14. To assail the evidence of Jayshri (PW4), who was eye

witness in the case, learned counsel for the appellant submitted

that her police statement is recorded after the period of two days

of the incident that casts serious doubt about the character of

Jayshri (PW4) as an eye witness. They also invited our attention

to the evidence of Sanjay Gharde (DW1) to show that on the date

of incident, Jayshri (PW4) did not visit his shop to purchase

grocery as claimed by her.

15. Evidence of Jayshri (PW4) shows that she knows both

the accused since childhood they being residing near her house.

Similarly, she states that she knows deceased Pintu who was

photographer by profession. This particular version that she knows

the deceased has gone unchallenged.

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According to this prosecution witness, on 29.07.2015 at

about 08.00 p.m., she has gone to purchase sugar in the grocery

shop of Sanjay (DW1) and when she was returning, she noticed

appellant no.1-Waghya was abusing in filthy language at a square

near Motghare Bichayat Kendar. That time, deceased Pintu was

coming on his motorcycle from the side of Dayal Nagar. Appellant

Waghya was standing on the road. Therefore, the deceased asked

him to give side so that he could pass from that point. According

to this prosecution witness, thereupon Waghya flared up and said,

"Kisko Side Me Hone Ko Bol Raha." Thereafter, he stopped his

vehicle, caught hold of his scalp hair, dragged him from the

motorcycle and assaulted by kick and fists. In the meantime,

according to her version, Waghya went inside the house and

brought Gupti. Thereafter, appellant no.2-Sandip caught hold of

of the deceased and thereafter appellant no.1 assaulted on the

deceased. The autopsy surgeon has found in all nine injuries,

puncture, stab wounds, etc. on the vital parts, which were stated

by Jayshri (PW4).

16. Though Jayshri (PW4) was cross-examined at length by

two different learned defence counsel, her evidence has remained

unshaken qua the participation of the appellants and the role

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attributed to them by Jayshri (PW4). Even before this Court,

nothing could be pointed out by both the learned counsel for the

appellant to show anything different.

17. The incident has occurred on 29.07.2015 and police

statement of Jayshri (PW4) was recorded on 31.07.2015. In this

background when the cross-examination of this witness is

minutely seen, it will be crystal clear that she is the witness, who

has firstly informed to the police about the incident. This

particular portion is brought on record in her cross-examination.

Not only that, she offered explanation also as to why at that point

of time she did not disclose name of the appellants to the police

because she was frightened.

During the course of cross-examination, it is brought on

record and reproduced as under:

"When police came to the spot, I informed police about the incident. However, it was not reduced into writing on the same day."

18. From this version, it is clear that this witness did not

lose precious time in informing the incident to the police.

However, if the police are not recording her statement

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immediately that is the lapse on the part of police machinery.

However, for the lapse on the part of police machinery, the

character of Jayshri (PW4) as an eye witness cannot be doubted

on that count. It is also pointed out during the course of

submission that there is an omission on the part of Jayshri (PW4).

It appears that the omission is not about the assault made by the

appellants but the omission is about the part of the body i.e.

stomach. Merely because that particular portion of the body is

found to be the improved version, entire prosecution case cannot

be said to be in the shadow of doubt, especially when deceased

received various injuries. Once it is specifically deposed by Jayshri

(PW4) about the assault and the role played by each of the

accused, this Court is giving stamp of approval to the judgment of

the learned Sessions Court that evidence of Jayshri (PW4) is

found to be trustworthy and free from any falsehood. In our view,

the motive loses its importance.

19. Diwakar Tijare (PW2) is pancha witness. In his

presence, both the accused gave their discovery statements.

Admissible portion of the discovery statement of appellant no.1-

Waghya is Exh.-32. Whereas the recovery panchanama is at Exh.-

33. Waghya led police party as per his discovery statement and

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reached to his own house from where he took out the clothes and

Gupti. Those were seized in presence of Diwakar (PW2). That

time clothes of Waghya, full pant and T-shirt were found to be

blood stained and also Gupti was having blood stains. The

substantive evidence of Diwakar as well as contemporaneous

documents Exh.-33 show that on the spot itself after seizure

investigating officer has properly sealed the articles.

20. Similarly, admissible portion of discovery statement of

appellant no.2-Sandip is at Exh.-34 and recovery panchanama is at

Exh.-35, which show that he took out blood stained clothes of his

from the place which were in his exclusive possession. Those

were also property seized and sealed as per the evidence of

Diwakar (PW2) and contemporary document Exh.-35.

21. Another pancha witness Sachin (PW3) was also

examined during the course of trial who proved spot panchanama

Exh.-45. Blood stained clothes of two persons by name; Anish

Dongre and Pankaj Waghmare who took the deceased from the

spot to the hospital. These two witnesses were not examined by

the prosecution. However, on examination of the entire record of

this case it shows that their clothes which where seized and sent

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to the CA were also having blood stains of blood group-B of the

deceased.

22. Devendara Masram (PW6), has drawn map of this spot.

Sheikh Chand (PW7), took weapon from Police Station to the

doctor for obtaining his opinion as to whether the injury found on

the dead body could be caused by Gupti. Dr. Zopate (PW8) has

given his query report i.e. Exh.-77. Evidence of Dr. Zopate would

show that the weapon which was brought to him was having a

blade and both the edges were sharp from the tampering end was

3 cm. The blade of weapon was curved to 9 cm. at proximal end.

Dimension of weapon - length 27 cm., blade length 24 cm. and

maximum width of blade was 2 cm. at the tampering end which

was curved. According to Dr. Zopate, all the injures which were

found by him while conducting post mortem could be caused by

the said weapon.

23. The investigating officer has sent muddemal to CA

under Exh.-104. As per the CA report Exh.-110, blood group of

the deceased was 'B'. Similarly, as per Exhs.-108 and 109, the

blood of both the appellants were also found to be 'B'. When the

blood of very same group was appearing on the clothes of the

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appellants, it was expected from them to offer explanation.

However, they utterly failed to give any explanation as to how

blood group 'B' is appearing on their clothes.

The charge framed against the appellants that they

assaulted on the deceased is found to be proved in view of the

ocular account and the said eye witness account is found to be

duly corroborated by CA report, Exh.-111.

24. The alternate submission of the learned counsel, in our

view, is also required to be rejected. The deceased was proceeding

to his house. He was not having enmity whatsoever with any of

the accused. Appellant no.1 was found to be obstructing the way

and he was hurling abuses. What was the mistake that was

committed by the deceased was that he asked appellant no.1 that

he should give way so that he could proceed. Upon that, the

appellants assaulted on him. It appears that from the crime-chart,

which is at Exh.-115 and 116, both the appellants are having past

criminal record. No doubt true that Gupti blow was given by

appellant no.1 alone, however, we cannot forget that before

assaulting the deceased by means of Gupti, even appellant no.2

assaulted the deceased by fist and kick blows. His role does not

end there. When he was assaulting by kick and fist blows,

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appellant no.1 went to his house and brought Gupti and thereafter

appellant no.2 firmly caught hold of the deceased and appellant

no.1 gave assault by means of Gupti, resulting into the numerous

injures which were found in the post mortem report.

25. In that view of the matter, in our view, the learned

Sessions Judge has rightly applied the law laid down in Manik Das

& Ors. Vs. State of Assam; reported in AIR 2007 SC 2274, and

rightly found appellant no.2 guilty for the offence under Section

302 of the IPC taking the aid of Section 34 of the IPC.

26. Before parting with the judgment, it would be useful to

make reference to the evidence of Jayshri (PW4) in which she

stated from the witness box that constantly she was receiving

threats from the family members of the appellant. Therefore, she

was required to file report against the relatives and upon her

report, crime was registered vide Crime No.757/2017. This crime

was registered on 29.03.2017. That shows that anyhow both the

appellants were intending to see that Jayshri (PW4), is frightened

and she will not depose before the Court and State the truth.

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27. On reappreciation of the entire prosecution case afresh,

we are of the view that the learned Sessions Judge has not

committed any error in convicting both the appellants for the

offence punishable under Section 302 read with Section 34 of the

IPC. Consequently, the appeal is dismissed.

                      JUDGE                           JUDGE




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