Bombay High Court
Pradeep S/O. Premnath Kawathe vs The State Of Maharashtra on 27 January, 2021
Bench: R.V. Ghuge, B. U. Debadwar
CrA-3759-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3759 OF 2019
IN CRIMINAL APPEAL NO. 1215 OF 2019
Pradeep s/o Premnath Kawathe
Age : 33 years, Occ: Nil,
R/o Nalwadil, Tq. Omerga,
Dist. Osmanabad
(C-8608) ... Applicant
Vs.
The State of Maharashtra
Throught PP High Court Bench
at Aurangabad ... Respondent
...
Advocate for Applicant : Mrs. S. G. Chincholkar
APP for Respondent - State : Mr. K. S. Patil
...
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
RESERVED ON : 15th JANUARY, 2021
PRONOUNCED ON : 27th JANUARY, 2021
JUDGMENT [PER: B. U. DEBADWAR, J.]:
1. This is an application under Section 389(1) of the Code
of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) for
suspension of sentence and bail.
2. Being aggrieved by the judgment and order dated
08-05-2018, passed by the learned Additional Sessions Judge,
Omerga, in Sessions Case No. 14 of 2016, whereby the applicant
has been convicted under Section 235(2) of Cr.P.C. for the offence
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punishable under Section 302 of the Indian Penal Code and
sentenced to suffer life imprisonment and pay fine of Rs.5,000/-, in
default, simple imprisonment for three months, applicant has
preferred the appeal and moved this application for suspension of
sentence and bail.
3. Facts of the case in short are that, deceased Kamlakar
Manik Kawathe and applicant both are resident of village Nalwadi,
Tq. Omerga, District Osmanabad. Marriage of the applicant was not
performed, though he had crossed 30 years of age. There was
suspicion in his mind that deceased Kamlakar knows black magic
and he has practiced black magic on him, and therefore, his
marriage was not being settled. Out of the said suspicion, in the
intervening night of 12-05-2016 and 13-05-2016, applicant went to
the field of deceased Kamlakar with a solid wooden log and
committed his murder by giving blow of the said wooden log on his
head. The blow was so severe that after assault it was broken
down in two pieces. At the time of assault deceased Kamlakar was
asleep in the cattle shed. Soon after killing Kamlakar, applicant left
the field along with piece of broken wooden log in his hand and
reached to the village Nalwadi. After reaching to the village, first of
all he had telephoned Shivram Surwase (PW6) and informed him
about the aforesaid incident and then to other villagers including
Sadna Dasme (PW4), who at that time had come to the public
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borewell of village to fetch the water. While disclosing Shivram
Surwase (PW6) about the incident, applicant had requested him to
inform the same to Motiram Manik Kawathe (PW2), elder brother of
deceased Kamalakar Kawathe. Accordingly, Shivram Surwase
rushed to the house of Motiram Kawathe (PW2) and informed him
about the incident, which he has heard from the applicant himself.
4. In pursuance of that information, Motiram Manik
Kawathe (PW2) along with some of the villagers rushed to the field
of deceased Kamlakar. On reaching there, he noticed Kamlakar
lying dead in the cattle shed with profuse bleeding due to severe
head injury. He had also noticed, piece of the wooden log, stained
with blood, lying near the dead body of deceased Kamlakar. After
confirming the death of Kamlakar due to severe assault, Motiram
Kawathe (PW2) returned back to village with the persons
accompanied with him and saw the applicant sitting on the platform
near the public borewell holding remaining piece of the wooden log,
stained with blood.
5. In pursuance of the information received from villagers,
police officials of Murum Police Station rushed to the village
Nalwadi, after taking entry of the same in Station Diary No.134 of
2016 vide Entry No.3, and visited the spot. After verifying the
situation, first of all they drew the spot panchanama and then drew
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the inquest panchanama of the dead body of deceased Kamlakar.
They, forwarded the said dead body to Rural Hospital, Omerga for
postmortem.
6. Meanwhile at about 08:35 a.m. on 13-05-2006,
Motiram Kawathe (PW2), elder brother of deceased Kamlakar
lodged the FIR. On the basis of that FIR, crime bearing Cr. No. 48of
2016, for the offence punishable under Section 302, came to be
registered against the applicant. During the course of investigation,
applicant was arrested. His medical examination got conducted
from Medical Officer. The piece of wooden log used as a crime
weapon, which he had carried with him, and his clothes, having
blood stains, were attached. Statements of material witnesses
were recorded. Articles seized from the spot and the applicant were
sent to forensic lab for examination. Postmortem report and
medical certificate of the applicant were collected and after
completion of investigation applicant was charge-sheeted.
7. After framing the charge under Section 302 of Cr.P.C. on
19-06-2017 (Exhibit-9), learned Sessions Judge, Omerga conducted
the trial and held the applicant guilty for the offence punishable
under Section 302 of Cr.P.C. and sentenced him as stated above.
8. Heard Mrs. S. G. Chincholkar, learned advocate for the
applicant and learned APP for the respondent - State.
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9. Case of the prosecution is based on extra judicial
confession and circumstantial evidence. To prove the case,
prosecution has examined as many as eight witnesses. Postmortem
report (Exhibit-20) proved in the evidence of Dr. Dinkar Narayan
Joshi (PW1), Medical Officer, who conducted postmortem on the
dead body of deceased Kamlakar demonstrates that he died due to
assault. Dr. Dinkar Joshi (PW1) in his evidence (Exhibit-19) not
only stated that the head injury suffered by deceased Kamlakar was
possible by the wooden log like muddemal wooden log broken into
two pieces, when shown, but also stated that the head injury
suffered by the deceased Kamlakar was sufficient to cause death in
ordinary course of nature.
10. Medical certificate (Exhibit-26) proved in the evidence
of Dr. Vasant Babre (PW3) makes it clear that applicant had not
suffered any injury (bleeding or not bleeding).
11. Evidence of Sadna Baburao Dasme (PW4) and Shivram
Surwase (PW6), evidences that immediately after the incident,
applicant had informed them about the murder of deceased
Kamlakar, which he had committed. CDR report (Exhibit- 55 to 58)
along with certificate issued under Section 65(B) of the Indian
Evidence Act, issued by the Nodal Officer (Exhibit- 55 and 55A),
corroborates to the evidence of Shivram Surwase (PW6), that he
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received call on his mobile phone from the mobile phone belonging
to the applicant and on the phone applicant informed him about the
incident, more particularly, act of murder of deceased Kamlakar
committed by him.
12. Nothing is brought on record through the cross
examination of Sadna Dasme (PW4) and Shivram Surwase (PW6)
on the basis of which their evidence can be discarded at this
juncture.
13. Evidence of Motiram Kawathe (PW2) speaks about his
rushing to the spot of incident, in pursuance of the information
given by Shivram Surwase (PW6), and noticing brother Kamlakar
lying dead in the field having severe head injury with profuse
blooding, and then, noticing accused on the platform near the
public borewell of village with a piece of broken wooden log in his
hand. He withstood the cross-examination.
14. Panchanama (Exhibit-30) proved in the evidence of
Hanmant Vithalrao Shinde (PW5) demonstrates that on 13-05-
2016, during 09:05 a.m. to 09:35 a.m., piece of the wooden log
stained with blood along with clothes on his person having blood
stains, were seized from the applicant.
15. Spot panchanama (Exhibit-36), proved in the evidence
of PW7 Ambadas Kawathe (PW7), not only describes the spot but
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also speaks volumes about the article seized from the spot viz.
blood stained piece of wooden log, lying near the body of the
deceased Kamlakar.
16. Evidence of investigating officer Vilas Gobade (PW8) not
only proves the manner in which he conducted the investigation but
also proves that he had sent muddemal articles seized from the
spot, clothes of the deceased Kamlakar, piece of the wooden log
along with clothes seized from the applicant and blood samples of
the deceased Kamlakar and the applicant / accused, collected by
the medical officer, to the forensic lab under requisition (Exhibit-49)
in sealed condition.
17. C.A. reports (Exhibit-50) evidences that all the ten
muddemal articles, received from Murum Police Station, with
requisition (Exhibit-49) were in sealed condition and seals were
intact. C.A. report (Exhibit-51) also evidences that blood samples
of deceased Kamlakar and the applicant / accused were sealed and
the seal applied were intact, when received at the forensic lab.
18. According to C.A. report (Exhibit-51), blood group of
deceased Kamlakar was 'A', whereas according to C.A. report
(Exhibit-52) blood group of applicant / accused was 'O'. C.A. report
(Exhibit-50) speaks volumes that piece of the wooden log seized
from the spot (Ex.No.E2), piece of the wooden log seized from
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applicant (Ex.No.E1) and full manila and night pant (Ex.No.D1 &
D2) seized from the accused, were having blood stains of human
blood. Besides, C.A. report (Exhibit-50) makes it clear that blood
found on the full manila of applicant and both the pieces of wooden
log used as a crime weapon, seized from the spot and another
seized from the applicant / accused, were having blood of 'A' group
which is the blood group of deceased Kamlakar. Thus, the C.A.
reports establishes complicity of the applicant in the homicidal
death of deceased Kamlakar.
19. In view of the above, it is prima facie clear that the
applicant / accused has committed murder of deceased Kamlakar,
out of the suspicion of black magic practiced by deceased Kamlakar
on him. Therefore, the application is liable to be rejected.
20. Hence, the criminal application is rejected.
(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
SVH
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