Bombay High Court
Makadya S/O. Vitthal Pawara vs The State Of Maharashtra on 12 February, 2021
Bench: R.V. Ghuge, B. U. Debadwar
1 CrAppln.2023.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2023 OF 2019
IN
CRIMINAL APPEAL NO.682 OF 2019
Makadya S/o. Vitthal Pawara,
Age : 34 years, Occu. Nil,
R/o. Borpani, Tq. Shirur,
Dist. Dhule. .. Applicant /
Appellant
Versus
The State of Maharashtra .. Respondent
...
Mr Hanumant P. Jadhav, Advocate for the applicant (appointed)
Mr. R.V. Dasalkar, APP for the respondent / State
...
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
Reserved on : 09-02-2021
Pronounced on : 12-02-2021
ORDER ( PER : B. U. DEBADWAR, J. ) :-
1. This is an application under Section 389 (1) & (2) of the Code of
Criminal Procedure, 1973 (hereinafter 'CrPC') for suspension of
sentence pending the appeal and release of the applicant / appellant on
bail. Heard Mr Hanumant P. Jadhav, learned Advocate for the applicant
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/ appellant and Mr R.V. Dasalkar, learned APP for the respondent /
State.
2. The applicant / appellant has preferred the appeal against
the Judgment and order dated 05-04-2017 passed by the learned
Additional Sessions Judge, Dhule in Sessions Case No.94 of 2014
whereby convicted him for the offence punishable under Section 302 of
Indian Penal Code, 1860 (in short 'IPC') and sentenced him to suffer
rigorous imprisonment for life and to pay fine of Rs.1,000/-, in default
of payment of fine he shall suffer further simple imprisonment for four
months.
3. In short, it is the case of the prosecution that first informant
- Dasharath Chamar Pawara, accused - Makadya S/o. Vitthal Pawara
and deceased - Chamar Mavashya Pawara are resident of one and the
same village i.e. Borpani, Tal. Shirpur, Dist. Dhule. First informant -
Dasharath Chamar Pawara is the son of deceased Chamar Mavashya
Pawara. They used to reside together with their family members.
Accused Makadya Pawara was their immediate neighbour. The houses
of deceased Chamar and accused Makadya were situated on the western
side of Boraji - Shahada road. There was sufficient open space in
between the said road and the house of accused Makadya. On
3 CrAppln.2023.2019
18-02-2014 at about 04:00 p.m. deceased Chamar Pawara went to the
open space situated in front of the house of accused Makadya for
urination, as many persons of surrounding area use the said place for
urination. After attending the nature's call i.e. urination when deceased
Chamar Pawara was returning back to his house, accused Makadya
came outside his house, rushed forward and in loud voice asked
deceased Chamar as to why he used the open space adjacent to his
house for urination. On replying by deceased Chamar that since many
people from the vicinity of the area use the said place for urination, he
had gone there and urinated. Upon saying so, accused Makadya
annoyed. He rushed inside the house, picked up solid wooden log,
returned back and gave forceful blow of the said wooden log on the
head of deceased Chamar. Consequently, deceased Chamar fell down.
Even after his falling down, the accused gave one more blow of the
wooden log on the head of deceased Chamar and ran away leaving the
wooden log there only. Dasharath Pawara and Prakash Pawara, who
were standing by the side of the aforesaid road, looking to the incident,
rushed forward so as to rescue deceased Chamar, but prior to that
accused Makadya had run away.
4. Deceased Chamar had suffered bleeding head injury and he
had lost the conscious. Dasharath Pawara took his father Chamar
4 CrAppln.2023.2019
Pawara initially to Cottage Hospital, Shirpur in a vehicle belonging to
one Munna. After first aid, on the advice of Medical Officer of Cottage
Hospital, he carried father Chamar to the Civil Hospital at Dhule. While
under treatment at Civil Hospital, Dhule, on 18-02-2014 at about 09:30
p.m. Chamar Pawara succumbed to the head injury suffered by him.
5. Soon after declaring father - Chamar Pawara dead,
Dasharath Pawara ran to the City Police Station, Dhule and informed
Station House Officer on duty about the incident. Since no action was
taken against the accused, on 19-02-2014 after funeral of his deceased
father - Chamar, Dasharath Pawara went to the Shirpur Police Station,
Dist. Dhule and lodged the report narrating the aforesaid incident.
Treating that report as FIR crime bearing no.30 of 2014 came to be
registered against accused Makadya Pawara under Section 302 of IPC.
6. The investigation of the said crime was carried by Sambhaji
Patil, Police Inspector attached to Shirpur Police Station, Dist. Dhule.
During the course of investigation, spot panchanama and inquest
panchanama were drawn, statements of material witnesses were
recorded and post-mortem report and other papers got collected from
Dhule City Police Station, Dhule. Accused Makadya was arrested.
5 CrAppln.2023.2019
Muddemal articles were sent to Forensic Lab for examination. After
completion of investigation and receipt of the CA reports, accused
Makadya was charge-sheeted.
7. On 16-11-2015 the learned Additional Sessions Judge,
Dhule framed the charge under Section 302 of IPC against accused
Makadya vide Exh.4, conducted the trial and after completion of the
trial held accused Makadya guilty for the murder of deceased Chamar
and sentenced him, as stated above.
8. Mr Hanumant P. Jadhav, Advocate while taking us through
the paper book of the case vehemently argued that impugned judgment
and order is totally incorrect. The learned Additional Sessions Judge,
Dhule failed to appreciate evidence on record in proper perspective and
arrived at wrong conclusion. The evidence of first informant -
Dasharath Pawara and alleged eye witness Prakash Pawara, which is
relied upon by the learned Additional Sessions Judge, Dhule, is not at all
worthy of credence. They both are highly interested witnesses. The
scrutiny of their evidence was not done properly in the light of attendant
circumstances. The learned Additional Sessions Judge, Dhule failed to
appreciate that, initially Dhule Police Station, Dhule had registered A.D.
6 CrAppln.2023.2019
and subsequently on the basis of belated FIR crime was registered
against accused Makadya. The story narrated in the FIR is false and
afterthought. Except ocular evidence of two interested witnesses, there
is no other cogent evidence to point out finger against accused
Makadya. The spot panchanama is not at all reliable, as it has been
drawn after many hours of incident. The evidence of Vasant Sasle
(PW-1) (one of the panch witnesses) speaks volumes as to how
panchanama is fabricated one. The alleged wooden log has not been
seized at the instance of accused Makadya. Though there is no clear
and cogent evidence to connect deceased Makadya with the incident, on
the basis of false FIR and afterthought statements of witnesses including
two interested witnesses, learned Additional Sessions Judge, Dhule has
held accused Makadya guilty for the serious offence of murder and
sentenced him to suffer rigorous imprisonment for life. The applicant /
appellant has every hope of success in appeal. This is a fit case to
suspend the sentence and release the applicant / appellant on bail.
9. Per contra, Mr R.V. Dasalkar, APP vehemently argued that
case is based on eye witnesses. First informant - Dasharath and Prakash
Pawara (PW-5) being eye witnesses their evidence assumes great
importance. They both in one voice deposed about the incident and
7 CrAppln.2023.2019
complicity of the accused in incident. Nothing is brought on record
through their cross-examination, on the basis of which, their evidence
supported by cogent circumstances can be discarded. Medical evidence
throws light not only about the severity of injury suffered by deceased
Chamar, but also on the intention of the accused. Conduct of the
accused after commission of the crime also lends support to the clear,
cogent and ocular evidence of eye witnesses. The learned Additional
Sessions Judge has rightly held the applicant / appellant guilty for the
offence under Section 302 of IPC, after appreciating the evidence on
record in proper perspective. There is no force in the application. As
such, the application for suspension of sentence and bail is liable to be
rejected.
10. In light of the aforesaid submissions made at bar by
Advocate representing both the sides, we have carefully gone through
the record, so as to ascertain whether the applicant / appellant deserves
to be released on bail, pending appeal by suspending sentence.
11. To prove the charge of murder punishable under Section
302 of IPC, the prosecution has examined as many as 9 witnesses. All
the witnesses examined by the prosecution are material witnesses.
8 CrAppln.2023.2019
12. It is admitted fact that first informant - Dasharath Pawara is
the son of Deceased Chamar. It is also admitted fact that deceased
Chamar Pawara and accused Makadya Pawara were the neighbours of
each other. It is also not in dispute that eye witness - Prakash Suklal
Pawara (PW-5) is cousin of first informant - Dasharath Pawara. On this
background we will turn to the evidence on record.
13. Post-mortem examination report (Exh.26) proved in the
evidence of Dr Ajit Patil, who conducted post-mortem on the dead body
of deceased Chamar Pawara, on 19-02-2014 during 10:45 hrs to 11:45
hrs at S.B.H. Government Medical College and General Hospital, Dhule
demonstrates that deceased Chamar Pawara had suffered 6 external
surface wounds and injuries associated with 8 internal injuries and all
the injuries are ante-mortem in nature. According to Dr Ajit Patil,
internal injuries mentioned in column nos.19 and 21 of the post-mortem
report are sufficient to cause death in ordinary course of nature. As far
as cause of death is concerned, Dr Ajit Patil very clearly deposed that,
head injury associated with splenic laceration is the probable cause of
death of deceased Chamar Pawara. Provisional post-mortem report and
final examination post-mortem report both corroborates to the evidence
9 CrAppln.2023.2019
of Dr Ajit Patil as far as cause of death of deceased Chamar Pawara is
concerned.
14. Dr. Ajit Patil in his further evidence very specifically
deposed that external and internal injuries suffered by deceased Chamar
Pawara are possible by assault with a wooden log like muddemal Article
no.1. During cross-examination Dr Ajit Patil has ruled out possibility
that deceased Chamar Pawara suffered external and internal injuries
mentioned in post-mortem report by fall on hard substance. It has also
come on record through his cross-examination that 4 to 6 blows of hard
and blunt object are required for causing injury nos.1 to 6 mentioned in
post-mortem notes. Thus, at this juncture, we have no hesitation, prima
facie, to hold that Chamar Pawara died of homicidal death.
15. The case is mainly based on eye witnesses. PW-4 Dasharath
Pawara is eyewitness and first informant, whereas PW-5 Prakash Pawara
is eye witness. It is evident from the record that they both saw accused
Makadya while assaulting deceased Chamar with a muddemal solid stick
and running away from the spot, when deceased Chamar fell down and
lost the conscious. Their evidence also reveals that accused Makadya
got annoyed, seeing deceased Chamar urinating in open space forming
part of his house property and therefore first of all he picked up quarrel
10 CrAppln.2023.2019
and then gave successive two blows of solid wooden log by bringing the
same from inside the house, on the head of the Chamar Pawara.
16. The testimony of PW-4 Dasharath and PW-5 Prakash are
clear, cogent and consistent with each other. Nothing could be brought
on record from their cross-examination, which would create doubt about
their version. From the material came on record through the cross-
examination of they both, it is prima facie clear enough that, PW-4
Dasharath and PW-5 Prakash, at the time of incident were standing by
the side of the Boraji - Shahada road which was situated on western
side of the houses of deceased Chamar Pawara and accused Makadya.
The spot of incident was visible from the place where they were
standing and chit chatting. Hearing the sound of commotion and cries
they rushed to the spot, but before they had reached to the spot accused
fled away. It was PW-4 Dasharath who lifted his father Chamar and
immediately carried him to Cottage Hospital at Shirpur and then to Civil
Hospital at Dhule in a vehicle. The accused has not come with any
specific defence. When both the eye witnesses have given clear account
of the incident and complicity of accused in the incident and there is no
specific defence merely on the basis of the fact that both the eye
witnesses are closely related with deceased Chamara, at this juncture,
11 CrAppln.2023.2019
their evidence cannot be discarded. It is settled position of law that
close relationship of the witness with the deceased is no ground to reject
his evidence, on the contrary he will not conceal the actual culprit. The
only rider is that the evidence of witness closely related with the victim
should be examined carefully.
17. Here in this case evidence of aforesaid two eye witnesses
gets support from the spot panchanama. It is true that out of two
panchas of the spot panchanama one viz. PW-1 has admitted in cross-
examination that he reached to the spot at 03:00 p.m. whereas spot
panchanama reveals that it was drawn between 11:10 a.m. to 12:10
p.m. But, merely for this reason, Spot Panchanama (Exh.30) at this
juncture cannot be discarded since testimony of another panch witness
PW-2 Prakash and PW-9, Sambhaji Patil, I.O., proves execution and
contents thereof. Crime weapon viz. solid wooden log seized from the
spot also prima facie corroborates to the evidence of the eye witnesses.
18. Record shows that on 18-02-2014 at about 09:30 p.m.
while under treatment at Civil Hospital, Dhule, Chamar succumbed to
the injuries suffered by him in aforesaid incident. Immediately after
declaring Chamar dead by medical authorities, PW-4 Dasharath rushed
12 CrAppln.2023.2019
to Dhule City Police Station, Dhule and informed Station House Officer
on duty about the incident and occurring death of his father Chamar
Pawara, due to injuries sustained in incident. The report at Exh.23
recorded on 18-02-2014 covers all the necessary information required
for registering the FIR / crime viz. place of incident, time of incident,
name of victim / deceased, name of accused, person who carried
deceased initially to the Cottage Hospital at Shirpur and then to the Civil
Hospital, Dhule from the spot and declaring Chamar Pawara dead by the
Medical Authorities while under treatment at Civil Hospital and on the
basis of aforesaid intimation, instead of registering the crime, Station
House Officer, on duty, wrongly registered A.D. therefore, it cannot be
said that FIR (Exh.15) was lodged belatedly and at this juncture the case
of the prosecution supported by evidence of two eye witnesses cannot be
thrown away for the reason of not explaining the delay.
19. Thus, taking into consideration evidence on record in
totality, we are not inclined to grant bail to the appellant / applicant by
suspending the sentence. With this, the application is rejected.
20. The fees of Mr Hanumant P. Jadhav, the learned Counsel
appointed to represent the applicant, is quantified at Rs.5000/- (Five
13 CrAppln.2023.2019
Thousand Only) which shall be paid by the High Court Legal Aid
Services Sub-Committee at Aurangabad.
(B. U. DEBADWAR) (RAVINDRA V. GHUGE)
JUDGE JUDGE
Gajanan Punde, PA.
