Tulshiram Balaji Pupalwad vs The State Of Maharashtra
2021 Latest Caselaw 8518 Bom

                                                       35-criapl-385-14 (Jt.)
                                      1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 385 OF 2014


 Tulshiram S/o Balaji Pupalwad
 Age : 35 years, Occu.: Nil,
 R/o : Patoda, Tq. Naigaon,
 Dist. Nanded                                 ... Appellant
                                              (Orig. Accused No.1)
          Versus
 The State of Maharashtra
 Through Police Station Kuntur,
 Tq. Naigaon, Dist. Nanded                    ... Respondent

                                      ....
 Mr. S. U. Choudhari, Advocate for the Appellant
 Mr. S.P. Deshjukh, A.P.P. for Respondent / State.
                                      ....

                               CORAM : V. K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

Closed for Judgment on : 28.06.2021 Judgment Pronounced on : 07.07.2021

JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-

1. This appeal is directed against the judgment and order of

conviction passed in Sessions Case No.20 of 2011 by the Additional

Sessions Judge at Biloli dated 24.05.2013 whereby the appellant /

original accused no.1 has been convicted of the offence punishable

under Section 302 of the Indian Penal Code.

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2. The prosecution case in narrow compass is as under:

2(i) Shankar Venkat Papulwad (since deceased) and accused

Tulshiram Balaji Papulwad are relatives and resident of Patoda, Tq.

Naigaon. They reside in the same area of village Patoda. The incident

took place on 15.12.2010 about 1.00 p.m. near the house of

deceased. Deceased Shankar, Sambhaji Palulwad, Sanbhaji Papulwad

(uncle of the first informant) and some villagers were weighing

Soyabean and putting them into gunny bags. Balaji Papulwad who is

son of the deceased (first informant) was also present there.

2(ii) According to the prosecution story, the accused had

contested the Grampanchayat election of Patoda on 2-3 occasions, but

he was defeated. In September 2010, one Kalawatibai a member from

the party of the deceased had contested the Grampanchayat election

and she was elected unopposed. For the said election, the deceased

and the first informant had extended help to Kalawatibai for the

victory. In the same Grampanchayat election of September 2010, the

sister-in-law of the accused had filled-in nomination form, but her

nomination form came to be rejected. It is alleged that the accused

had grudge in his mind against the deceased due to his defeat in

Grampanchyat election as well as defeat of his sister-in-law.

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2(iii) It was about 1.00 p.m., accused armed with big knife

rushed towards the platform where the work of weighing of Soyabean

was going on. The accused alleged to have made attack on the person

of the deceased Shankar. The accused alleged to have given blow of

knife in his abdomen. The accused alleged to have stated to the

deceased that because of him, his life is ruined and he always support

to the opposite party and because of that he never won the

Grampanchayat election. After giving first blow by knife, accused took

out the knife and gave second blow on the neck of the deceased and

fled away.

2(iv) Shankar was seriously injured in the attack and he was

taken to the hospital at Barbada by the first informant where he was

declared dead.

2(v) On the basis of first information report lodged by Balaji,

on 15.12.2010 with Police Station Kandhar, crime No.107 of 2010

under Section 302 of the Indian Penal Code came to be registered.

2(vi) On the basis of supplementary statement given by the

first informant, two more accused namely Sanjay and Balaji were

roped in the said crime. Both the accused alleged to have instigated

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the present accused and they alleged to have committed murder of

Shankar with common intention.

2(vii) After making attack on the deceased, the present accused

alleged to have taken shelter in the house of Bajirao Hambarde (PW

No.5). The intimation was given to the police and police rushed to the

house of Bajirao Hambarde at village Patoda where from accused

Tulshiram taken into custody armed with knife. The dead body was

sent to the hospital for postmortem and report. The investigating

officer has seized the knife from the accused under seizure

panchanama as well as clothes on his person at that time. The clothes

of deceased also came to be sized. Seized clothes of deceased, clothes

of accused and weapon recovered from him were sent to Chemical

Analyzer for analysis and report. The investigation agency collected

the Chemical Analyzer's report during course of investigation. The

investigating officer has recorded the statements of witnesses

including two eye witnesses namely Sambaji and Bajirao.

2(viii) The investigating officer found sufficient incriminating

evidence against the accused and filed charge-sheet against in all

three accused persons for the offence punishable under section 302

read with section 34 of the Indian Penal Code.

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2(ix) After committal of the case, the learned Additional

Sessions Judge at Biloli has framed the charge against three accused

persons vide Exhibit 14 for the offence punishable under section 302

read with section 34 of the Indian Penal Code.

2(x) During the trial, the prosecution machinery has examined

in all 8 witnesses, which consists 3 eye witnesses, Medical Officer who

conducted the postmortem, investigating officers and panchas and

carrier.

2(xi) The defence of all the accused was of common nature. They

defended that they have been falsely foisted upon in this case. They

are not concerned with the death of Shankar Ventak Papulwad.

2(xii) The learned Additional Sessions Judge after evaluating

oral evidence, documentary evidence and considering the argument

advanced by the prosecution side and the defence, arrived at a

conclusion that the prosecution has proved the charge of murder

against accused no.1 Tulshiram alone. The learned trial Judge has

recorded the finding that the prosecution has failed to prove the

charge of murder against accused nos. 2 and 3 punishable under

Section 302 read with section 34 of the Indian Penal Code. The

learned trial Judge was pleased to acquit accused nos. 2 Sanjay and 3

Balaji and set them free.

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3. Feeling dissatisfied by the impugned judgment and order of

conviction, accused no.1 has challenged the judgment and order of

conviction on various grounds. Whereas, the prosecution has not

preferred the appeal against the order of acquittal of accused no.2

Sanjay and accused no.3 Balaji, passed by the Additional Sessions

Judge at Biloli.

4. We have heard Mr. S.U. Choudhari, learned counsel for

appellant / original accused appointed by the Court at State expenses

and Mr. S.P. Deshmukh, learned APP for the State at length.

Argument of learned counsel for Appellant

5. Mr. Choudhari, learned counsel for the appellant vehemently

submitted that the Additional Sessions Judge has not properly

appreciated the evidence of witnesses. The prosecution has examined

only interested witnesses. According to Mr. Choudhari, though PW-1,

PW-3, PW-4 have been posed as eye witnesses, they were not present

at the time of the alleged incident. They cannot be treated as eye

witnesses to the scene of offence. The learned trial Judge has given

unnecessary importance to the evidence of PW-1, PW-3 and PW-4 and

arrived at erroneous conclusion. He submitted that PW-5 Bajirao is

also close relative of deceased and interested witness. The evidence of

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PW-1, PW-3, PW-4 and PW-5 is full of contradictions and omissions.

They are not trustworthy witnesses. The learned trial Judge has

accepted their testimony and arrived at erroneous conclusion.

According to Mr. Choudhary, the alleged incident took place at the

platform where work of weighing Soyabean and putting them in

gunny bags was going on. Gunny bags of Soyabean were not found at

the place of incident when panchanama came to be drawn. It is very

much suspicious. Mr. Choudhary submitted that blood stains were not

found at crime scene though it was assault by knife. According to the

prosecution, accused alleged to have given blow by means of knife on

the abdomen and neck, but postmortem report, column no.17

nowhere speaks about injury on neck. The medical evidence is not

supporting to the prosecution.

6. Mr. Choudhari submitted that, according to the prosecution, the

accused had taken shelter in the house of Bajirao Hambarde (PW-5)

and he was arrested therefrom is after thought story and cannot be

relied. Mr. Choudhari submitted that the prosecution has not proved

the motive in respect of crime. The findings recorded by the trial

Court while holding the accused guilty under section 302 of the

Indian Penal Code are erroneous and those findings are liable to be

set aside. The accused / appellant needs to be set at liberty from

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charge of murder under section 302 of the Indian Penal Code, which

is slapped by the prosecution machinery.

7. Mr. Choudhari, learned counsel for the appellant by way of an

alternate argument submitted that if this Court comes to the

conclusion that deceased succumbed to death because of assault at

the hands of present accused, it was a case of single knife blow. The

motive is not proved by the prosecution. Having regard to the facts

and circumstances of the case on hand and having regard to the single

injury caused by the accused, conviction under Section 302 of the

Indian Penal Code may be converted into section 304 Part II of the

Indian Penal Code. Mr. Choudhari, learned counsel for the appellant

has placed his reliance on the following stock of citations in support

of his argument.

(i) Stalin Vs. State Represented by the Inspector of Police reported in (2020) 9 SCC 524.

(ii) Rampal Singh Vs. State of Uttar Pradesh reported in (2012) 8 SCC 289.

(iii) Shrawan S/o Dagdu Pawar Vs. State of Maharashtra reported in 2011 All MR (Cri) 2313.

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Argument of learned A.P.P.

8. Per contra, Mr. S.P. Deshmukh, learned APP for the State

submitted that the case is based upon direct evidence and duly

supported by the medical evidence and Chemical Analyzer's report.

There are three witnesses who had seen accused while making assault

on the deceased by means of knife. After the assault on the person of

the deceased, accused had taken shelter in the house of Bajirao

Hambarde (PW-5) where from he was taken into custody. PW-5

Bajirao Hambarde has supported to the prosecution case. Mr.

Deshmukh, learned APP submitted that though eye witnesses are

relative and interested witnesses, their testimony cannot be discarded

on that ground. The defence side has not brought on record any

material through the testimony of PW-1, PW-3 and PW-4 to disbelieve

them. Mr. Deshmukh, learned APP submitted that after the attack on

the deceased, accused took shelter in the house of Bajirao Hambarde.

The was crowd gathered. The intimation was given to the police. The

entry to that effect is taken into the station dairy and the same has

been proved. The police rushed to the house of Bajirao Hambarde

where from the accused was taken into custody.

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9. Mr. Deshmukh, learned APP submitted that the prosecution has

examined PW-6 Dr. Pratam Durge, who has conducted postmortem on

the dead body and given opinion about cause of death. It is a

homicidal death and accused is a author of murder. Postmortem

report vide Exhibit 47, more particularly column No.17 speaks in

detail about incised wound and stab wound. All the injuries were

found antemortem. Dr. Pratam Durge has opined that the death was

occurred due to internal bleeding due to stab wound over the

abdomen. According to the learned APP, the prosecution has

examined all the relevant and material witnesses and proved the

charge of murder against the accused / appellant beyond reasonable

doubt. The learned Additional Sessions Judge has rightly convicted

the accused under section 302 of the Indian Penal Code. The findings

recorded by the trial Court are based upon the cogent and sufficient

evidence. Mr. Deshmukh, learned APP urged that it is not a fit case to

disturb the findings recorded by the trial Court. The order of

conviction rendered by the trial Court against the accused under

section 302 of the Indian Penal Code needs to be maintained and

confirmed.

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10. We have considered the argument advanced by Mr. Choudhari,

learned counsel for the appellant and Mr. Deshmukh, learned APP for

the State. We have also gone through the paper book with the

assistance of learned counsel for the appellant and the learned APP.

Medical Evidence

11. First we shall deal with the point of homicidal death. It is

necessary to see what injuries were found on the dead body at the

time of postmortem examination. The evidence of PW-6 Dr. Pratap

Durge at Exhibit 46 is important. Dr. Pratap Durge has stated during

his testimony about conducting postmortem report on the dead body

of Shankar Venkat Papulwad on 15.12.2010 at Civil Hospital, Nanded.

He noticed the following injuries on the dead body of Shankar Venkat

Papulwad.

"1. Incised wound over right side of dace horizontally placed at right angle of mandible extending up to right cheek size 11cm x 1 cm, tailing present at anterior end.

2. Stab wound (injury) present over abdomen, horizontally placed in middle 2.5 cm below umbilicus of size 4 x 2 cm x cavity deep coits of intestine protruding out of abdomen through injury margins of injury sharp. Angle of injury acute. Injury 1 & 2 were caused by sharp edged pointed object, age of both injury Nos. 1 & 2 fresh injury."

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12. According to Dr. Pratap Durge, above said injuries were

antemortem and cause of death was due to internal stab injury over

the abdomen. The postmortem report and cause of death certificate

vide Exhibits 46 and 47 are duly proved at the hands of Dr. Pratap

Durge. While facing the cross-examination, Dr. Pratap Durge admitted

that he did not notice any injury on the neck of dead body. The first

informant has stated in the first information report and in his

evidence that accused had also given blow on neck, but no injury is

found on the neck. It makes hardly any difference. Dr. Pratap has

made it clear while facing the cross-examination that it was bleeding

profused. The heavy bleeding might have been caused immediately

after the assault. Injury no.1 is at right angle of mandible though not

on neck. There are two stab injuries due to attack made by the

accused, which are found at the time of postmortem examination as

stated by the first informant.

13. Having regard to the medical evidence discussed herein before,

we arrived at conclusion that it is a case of homicidal death. We are in

agreement with the finding recorded by the learned Additional

Sessions Judge.

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14. It is important and material to see who is the author of murder

of Shankar and secondly whether the prosecution agency has

travelled the journey successfully to prove the charge of murder

against the accused with the help of cogent and unimpeachable

evidence.

Evidence of eye witnesses

15. PW-1 Balaji Shankar Pupulwad vide exhibit 27, PW-3

Chandrakant Dashrath Dawale vide exhibit 40 and PW-4 Sambhaji

Laxman Pupulwad are stated to be the eye witnesses.

16. It is well settled law that the testimony of a witness cannot be

discarded only because he happens to be related witness or interested

witness. If it is shown by way of evidence that the testimony of related

and interested witness is doubtful and suffers from material

omissions, contradictions and improvements and does not inspire

confidence of the Court, such testimony of an eye witness needs to be

discarded.

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17. Having regard to the above said legal position of law, the

testimony of PW-1 Balaji Shankar Pupulwad and PW-4 Sambhaji

Laxman Pupulwad cannot be discarded only because they are

relatives of deceased Shankar. PW-3 Chandrakant Dashrath Dawale is

not relative of the deceased. His testimony cannot be discarded only

because he is interested witness. Their testimony needs to be assessed

by way of above said legal test.

18. PW-1 Blaji Shankar Pupulwad happens to be the son of the

deceased and first informant. His testimony reveals that the incident

took place on 15.12.2010 about 1.00 p.m. on the platform where the

work of weighing Soyabean was going on. His father Shankar (since

deceased), Chandrakant Dawale Sambhaji Pupulwad, Kisan

Gaddamwad and Ankush Dawale were performing the work of

weighing Soyabean produce. He has further disclosed that all the

accused rushed to them. Accused Tulshiram came on the platform and

gave blow of knife ( tkach;k) in the stomach of his father Shankar by

saying "gjke[kksjk". While giving blow, accused Tulshiram further

stated to his father that his life is ruined because of him (Shankar)

since he always supported the opposite party, and as a result, he

(Tulshiram) was throughout defeated. Remaining two accused i.e.

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accused nos. 2 and 3 were instigating to accused Tulshiram by stating

him "ekj lkY;kyk ekj". Accused Tulshiram gave another blow of

knife on the neck of his father Shankar and afterwards all the accused

fled away from the spot. He immediately rushed to the spot since he

was working in the plot near the platform.

19. His testimony further disclosed that he along with Chandrkant

Dawale and Sambhaji Pupulwad immediately took his father at

hospital at Barwada by auto of one Ankush Alore. After giving

primary medical aid to his father, shifted to the government hospital

at Nanded where his father was declared dead by the Doctors. He has

disclosed that there was political enmity between his father and

accused No.1 Tulshiram since last 10-15 years. Accused Tulshiram

made attack on his father Shankar because of grudge in the mind due

to political rivalry. He stuck to his first information report vide exhibit

28.

20. While facing the cross-examination PW1 Balaji admitted that

although he had stated before the police while lodging the first

information report that accused nos. 2 and 3 instigating accused no.1

Tulshiram by uttering words "ekj lkY;kyk ekj", said fact did not find

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place in the first information report. These are the material

improvements made by PW1 Balaji and those improvements have

been duly proved at the hands of PW-8 Chandrashekhar Choudhari P.I.

/ Investigating Officer.

21. PW-1 Balaji while facing cross-examination admitted that

though he had stated before the police that Ankush Dawale was

present at the time of weighing Soyabean produce, such fact did not

find place in the first information report and that improvement is duly

proved at the hands of PW-8 Investigation Officer / P.I. Choudhari.

22 On going through the supplementary statement of PW-1 Balaji,

it is noticed by us that role of accused nos.2 and 3 are brought on

record through supplementary statement and it has no foundation in

the first information report. Whatever instigation alleged to have

made by accused nos.2 and 3 with their common intention is found to

be after thought and concocted. The trial Court has considered this

aspect and accordingly pleased to acquit accused nos.2 and 3.

23. The testimony of PW-1 Balaji cannot be thrown away only

because of above stated improvements. His presence at the time of

incident near the spot is not found doubtful. It appears from the

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testimony of PW-1 Balaji that his father Shankar was weighing

Soyabean produce on the platform. Whereas, he was working near

the platform where his father Shankar was weighing Soyabean

produce. He has also admitted while facing cross-examination that his

father was alone present on the platform. He has categorically stated

that after the incident, he along with Chandrakant Dawale and

Sambhaji Pupulwad immediately took his father to hospital at

Barbada by auto of one Ankush Alore and after providing primary

medical aid at Barbada, his father was taken to the government

hospital at Nanded where he was declared as dead. The natural

conduct of the witness is forthcoming after the attack was made on

his father. It is not in dispute that accused no.1 Tulshiram is a distant

relative of deceased Shankar and they are residing in the same area of

village Patoda. Accused No.1 Tulshiram is well known to the deceased

Shankar as well as the first informant and other witnesses present

there, and as such, there cannot be a case for the defence of mistaken

identity. Moreover, it is brought on record through the cross-

examination of PW-3 Chandrakant Dawale that deceased Shankar and

accused no.1 Tulshiram were the only persons present on the

platform. Obviously, it is raised finger to accused no.1 Tulshiram who

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made attack on the person of Shankar by means of knife and caused

serious injuries in the attack.

24. On careful scrutiny of the testimony of PW-1 Balaji, the

presence of accused no.1 Tulshiram is duly proved. Further it is duly

proved that accused no.1 Tulshiram rushed to the platform where

Shankar was weighing Soyabean and made attack by means of knife

and caused injuries. The testimony of PW-1 Balaji is found natural

and trustworthy. His testimony needs to be accepted though it is

found that he has made certain improvements regarding the role of

accused nos. 2 and 3 that should not be hurdle in the way in believing

the testimony of PW-1 Balaji. It is natural tendency of a witness to

exaggerate something so as to strengthen his case. Where eye

witnesses account is found credible and trustworthy, his deposition

can not be brushed aside merely because there are some trival

contradictions or omissions. It was a daylight attack made by accused

no.1 Tulshiram on Shankar by means of knife and same is

categorically described by PW-1 Balaji in his testimony. The trial Court

has rightly accepted the testimony of PW-1 after due scrutiny and by

giving reasons.

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25. PW-3 Chandrakant Dawale vide exhibit 40 is another eye

witness to the incident. He has disclosed about the incident dated

15.12.2010, which occurred on the platform of the house Sambhaji

and Shankar. It is evident that the work of weighing Soyabean was

going on the platform. He along with Balaji (PW-1) and Sambhaji

(PW-4) were present near the weighing machine. He has further

stated that accused Tulshiram along with other accused rushed to

platform. When they heard the sound of their footwear, they went

back to the platform and saw all the accused persons there. Accused

Tulshiram was seen on the platform. Accused No.1 Tulshiram gave

blow of knife in the stomach of Shankar. Shankar raised hue and cry

for help by saying to his brother "laHkk js". Other accused were

instigating accused Tulshiram by saying "gk.k js gk.k". Accused

Tulshiram gave another blow by same knife on the neck of Shankar by

stating that his life is ruined due to Shankar. After the attack, Shankar

failed down below the platform. He has witnessed the said incident of

assault. Accused Tulshiram fled away. He went to the house of Bajirao

Hambarde. Rest of his testimony speaks about taking up injured

Shankar to rural hospital at Barbada by auto of one Ankush Alore and

subsequently shifted to the government hospital at Nanded. He has

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disclosed that said incident was occurred due to political rivalry

between late Shankar and accused No.1 Tulshiram.

26. It is material to note that the name of this witness PW-3

Chandrakant Dawale is mentioned by PW-1 Balaji while lodging first

information report as an eye witness to the incident. By way of cross-

examination of PW-3 Chandrakant, certain improvements are brought

on record and those have been duly proved at the hands of

Investigating Officer regarding instigation by accused nos. 2 and 3

and their involvement, which we have discussed in the earlier part.

Further improvement is brought on record that after hearing sound of

footwears of accused persons, he went back to platform and seen all

the accused persons there. The presence of accused nos. 2 and 3 as

stated by PW-3 Chandrakant Dawale is found to be doubtful and that

is why that piece of evidence is rightly discarded by the learned trial

Court. The testimony of PW-3 Chandrakant Dawale is corroborated by

the testimony of PW-1 Balaji on the point of incident and attack made

by accused No.1 Tulshiram on the person of Shankar by means of

knife. That piece of evidence of PW-3 Chandrakant Dawale is not any

way shaken by way of cross-examination despite of above referred

material omissions.

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27. PW-3 Chandrakant is not any way related to the deceased or

the first informant. He seems to be an independent witness falling in

the category of the eye witness to the incident. He has disclosed in

detailed in what matter incident occurred on 15.12.2010 when the

work of weighing Soyabean was going on, on the platform. There is

no enmity between PW-3 Chandrakant and the accused Tulshiram. We

need to accept the testimony of PW-3 Chandrakant when it is found to

be corroborated and inspires confidence of the Court. He has given

truthful version about the incident and active role played by accused

No.1 Tulshiram while making attack on Shankar by means of knife.

Certainly evidence of PW-3 Chandrakant needs to be accepted when

he is found to be truthful eye witness to the incident.

28. PW-4 Sambhaji Laxman Pupulwad vide exhibit 42 is another

eye witness and happens to be cousin of deceased Shankar. He has

described in detailed as to how and what manner the incident

occurred on 15.12.2010, when he was present there. His testimony

reveals that Shankar was helping them in the work of weighing

Soyabean and putting them into gunny bags. He was present along

with Chandrakant and Balaji. Accused No.1 Tulshiram came on the

platform and stabbed Shankar, in his stomach and neck by means of

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knife. This piece of evidence of PW-4 Sambhaji goes hand in hand

with the narration given by PW-1 Balaji and PW-3 Chandrakant. So

far as instigation at the hands of accused nos. 2 and 3 are concerned,

though initially PW-4 Sambhaji though stated about instigation, but

while facing the cross-examination, he has admitted that accused nos.

2 and 3 did not utter words " ekj ekj dk; cÄk;ykl" thereby

vanished the case against accused against accused nos. 2 and 3. So far

as narration given by PW-4 Sambhaji on the point of incident and the

role of accused No.1 is concerned, it is duly proved and there is no

reason to discard his evidence on that point.

29. PW-5 Bajirao Hambarde vide exhibit 43 is an independent

witness in whose house accused no.1 had taken shelter after making

assault on deceased Shankar. His testimony reveals on the day of

incident, he came back from his field about 2.00 p.m. when he saw

crowd gathered near his house. Upon making enquiry with his wife he

came to know that accused Tulshiram had concealed in his house

after making assault on Shankar. He had seen accused no.1 Tulshiram

in his house while taking shelter. He has stated that police came to his

house and Tulshiram was taken into custody. While facing cross-

examination, he has admitted that the house of accused Tulshiram is

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behind his house, but that admission is not any way helpful to the

defence. The testimony of PW-5 Bajirao Hambarde regarding taking

shelter by accused Tulshiram in his house after the attack is not any

way shaken by way of cross-examination. PW-3 Chandrakant and PW-

4 Sambhaji have also stated that accused Tulshiram took shelter in the

house of Bajirao Hambarde after making assault on Shankar and

concealed himself there. PW-5 Balaji Hambarde is an independent

witness and he had no reason to speak against accused No.1

Tulshiram.

30. As held by the Apex Court in catena of decisions even very

recently in case of Khushwinder Singh Vs. State of Punjab reported in

(2019) 4 SCC 415 and State of Madhya Pradesh Vs. Chaakkilal and

another reported in (2019) 12 SCC 326 that minor discripancies are

not to be given undue emphasis and the evidence has to be

considered from the point of view of trustworthiness. While

appreciating the evidence ;of witness in criminal trial, the test is

whether the evidence as a ring of truth, cogent, credible and

trustworthy or otherwise. If there are minor contradictions

inconsistencies, exaggerations or embellishments in the evidence of a

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witnesses, his evidence cannot be discarded. His evidence needs to be

considered as a whole.

31. Having regard to the appreciation of above referred stock of eye

witnesses, we do not find any hurdle in accepting their testimony on

the point of ocular of incident, involvement and participation of

accused No.1 Tulshiram in making attack on Shankar by means of

knife.

Evidence of Panch witness on scene of offence and recovery of weapon

32. PW-2 Maroti Satwaji Dandewad vide exhibit 33 is a panch

witness. His testimony speaks that police seized one cover of knife

and one piece of cloth wherein blood stains from tiles were collected.

The Panchnama of scene of offence vide exhibit 33 is duly proved at

the hands of Maroti.

33. Second part of evidence of PW-2 Maroti relates to seizure of

knife from accused Tulshiram when he was in the house of Bajirao

Hambarde. He has categorically stated that accused Tulshiram was in

the house of Bajirao Hambarde. Police entered into the house of

Bajirao Hambarde.Accused No.1 Tulshiram was found while holding

the knife in his hand and police seized the same as well as his shirt

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under panchanama vide exhibit 35. While facing the

cross-examination, PW-2 Maroti admitted that there were no blood

stains on the cover of knife at the time of its seizure. But he has

categorically denied that there were no blood stains on knife. The

Investigating Officer Mr. Chopudhari, P.I. (PW-8) has also

categorically stated in his deposition vide exhibit 58 that accused

Tulshiram had concealed himself in the house of Bajirao Hambarde

where from accused Tulshiram was taken into custody. One knife with

blood stains and his shirt stained with blood were also taken charge

of and seized under panchanam vide exhibit 35. No material is

brought of record through the cross-examination of PW-2 Matoti to

disbelieve panchanama of scene of offence and panchana of seizure of

knife and blood stained shirt of accused no.1.

34. PW-8 Mr. Chandrashekar Choudhari, vide exhibit 58 is a

Investigating Officer / P.I. who has conducted the major part of

investigation of this case. He has stated about his procedural part of

investigation. He has also stated about station diary entry vide exhibit

60 and in the said entry, it is not mentioned who assaulted the

deceased. The entry in station diary vide exhibit 60 was an intimation

on the basis of M.LC. It cannot be termed as a first information report.

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The first information report is the foundation for putting the criminal

law in motion, and therefore, first information report plays important

role while investigation of a criminal case. No more weightage can be

given to the station diary entry vide exhibit 60, which is simply an

intimation to police station Wazirabad Nanded by way of M.L.C.

35. While facing the cross-examination, PW-8 Mr. Chandrashekhar

Choudhari / P.I. has admitted that accused Tulshiram was arrested on

15.12.2010 at 23.15 hours. The arrest panchanama vide exhibit 59

nowhere reflects the place where from accused Tulshiram came to be

arrested. Be that as it may, accused Tulshiram was taken into custody

by P.I. Choudhari from the house of Bajirao Hambarde and that fact is

duly proved. Making arrest panchanama is a procedural part and it is

a job of Investigating Officer. If the Investigating Officer did not

mention the place where from the accused is arrested in the arrest

panchanama, the prosecution cannot be blamed for that.

36. P.W.-9 Sonaji Amle vide exhibit 70 is another Investigating

Officer who seems to have played very minimal role in the

investigation. He has simply collected the papers and recorded

supplementary statements of witnesses and after arresting two

accused persons, filed the charge-sheet.

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37. PW-7 Prabhakar Kawle P.S.I. vide exhibit 53 seems to be sample

a carrier, who carried the sample to Chemical Analyzer, Aurangabad

and deposited the same.

Chemical Analyzer's Report

38. The Chemical Analyzer's report vide exhibit 71 pertains to the

clothes of the deceased and the weapon seized in the case. On going

through the Chemical Analyzer's report vide exhibit 71, more

particularly result of analysis, which read thus:

"RESULTS OF ANALYSIS

--- Exhibits 3,4 and 9 are stained with blood.

           ---      Exhibit is stained with blood on blade.
           ---      Exhibit 2 has three blood stains each of about 0.5
                    cm in diameter on right sleeve.
           ---      Exhibits 5, 6 and 7 each has considerable number
                    of blood stains ranging from about 0.1 cm in
                    diameter to big in size spread at places.
           ---      Exhibit 8 has moderate number of blood stains

ranging from about 0.5 cm in diameter to big size spread at places and appear washed.

--- Exhibit 10 has moderate number of blood stains ranging from about 0.1 cm in diameter to big size spread at places.

--- Blood detected on exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 is human.

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--- Exhibits 1, 2, 5, 7, 8, 9 and 10 are stained with blood of group 'O'.

--- Group of blood detected on exhibits 3, 4 and 6 cannot be determined as the results are inconclusive."

39. As per chemical analyzer's report vide exhibit 73, blood group

of the deceased is 'O'. Articles 1, 2, 5, 7, 8, 9 and 10 are found stained

with blood of group "O', which pertains to the deceased Shankar.

Article 1 is a knife and the blood was found on its blade, which has

blood group 'O', which is of deceased Shankar. Except article nos.3, 4

and 6, all the articles were found stained with blood and the blood

group of 'O', which pertains to the deceased Shankar, which are

supporting to the prosecution case. Importantly, the knife seized in

the case is found stained with blood with blood group of 'O', pertains

to deceased Shankar, which has strengthened the prosecution case.

40. Mr. Choudhari, learned counsel for the appellant has given

much stress that rickshaw driver is not examined to corroborate the

version of PW-1 Balaji. We do not find any force in the submissions of

Mr. Choudhari, learned counsel for the appellant. The auto rickshaw

of Ankush Alore is used while taking injured Shankar to the Hospital

at Barbada and thereafter he was shifted to Civil Hospital at Nanded

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for further line of treatment. The role of Ankush Alore / rickshaw

driver is very limited to the extent of carrying the injured Shankar to

the hospital and not more than that. He is not that way material

witness. It is not any way fatal to the prosecution case though the

auto rickshaw driver is not examined.

Motive

41. The prosecution has brought on record through the testimony

of PW-1 Balaji, PW-3 Chandrakant and PW-4 Sambhaji that there are

political groups in the village Patoda. There was political rivalry

between the deceased Shankar and accused Tulshiram on account of

Grampanchayat election. Tulshiram was defeated in Grampanchayat

elections till the year 2010 and he has grudge in his mind against the

deceased Shankar since his panel members used to get elected in the

Grampanchayat election. Thus the prosecution has also proved the

motive for causing the murder of Shankar at the hands of Tulshiram.

In the present case, there is evidence to establish the motive when the

prosecution adduced positive evidence showing the direct

involvement of accused Tulshiram in the crime. Motive assumed

importance. The evidence of interested witnesses and those who are

related to the deceased cannot be thrown out simply for that reason.

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41. Having regard to the appreciation of evidence of above stock of

witnesses referred above, the prosecution has proved the charge of

murder against the accused beyond reasonable doubt by completing

successful journey of cogent and unimpeachable piece of evidence.

We are in agreement with the findings recorded by the learned

Additional Sessions Judge.

42. Mr. S.U. Choudhari, learned counsel for the appellant

alternatively requested to convert the conviction from section 302 of

the Indian Penal Code to section 304 Part II of the Indian Penal Code .

He submitted that though it is a culpable homicide, it does not

amount to murder since it is committed without premeditation in a

sudden fight in heat of passion. It was a case of single blow. Mr.

Choudhari has also referred three citations, referred above in support

of his argument.

43. In case of Stalin Vs. State Represented by the Inspector of

Police (supra), the Hon'ble Supreme Court has converted conviction

from section 302 to section 304 Part II of the Indian Penal Code by

noticing that the act was committed without premeditation in a

sudden fight in the heat of passion upon sudden quarrel and without

offender having taken undue advantage and not having acted in a

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cruel or unusual manner. The facts of the case on hand are quite

distinguishable. In the case at hand, accused Tulshiram armed with

big knife rushed to the deceased when he was working and all of a

sudden gave blow in his stomach and another blow on his neck. If the

length and width of the blade of the knife are taken into

consideration, it was a big in size. The accused Tulshiram had planned

to make an attack on deceased and after due preparation, he seems to

have made attack and gave blow by means of knife. Accused

Tulshiram inflicted the injuries on the deceased on the vital part of his

body with well preparation and with an intention to kill him

44. Now coming to the another citation relied upon by Mr.

Choudhari, learned counsel for the appellant in case of Rampal Singh

Vs. State of Uttar Pradesh (supra), the facts of the cited case and the

facts of the case in hand are quite different. In the case at hand, the

act committed by accused Tulshiram is done with clear intention to

kill him. Certainly, it amounts to murder within the meaning of

section 300 of the Indian Penal Code and punishable under section

302 of the Indian Penal Code.

45. The above citations of the Apex Court relied upon by Mr.

Choudhari, learned counsel for the appellant are not any way helpful

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to the defence to reduce the sentence and bring it down to section

304 Part II of the Indian Penal Code.

46. Now coming to last citation relied upon by Mr. Choudhari,

learned counsel for the appellant in case of Shrawan Dagdu Pawar Vs.

State of Maharashtra (supra), the Division Bench judgment of this

Court. The Division Bench of this Court has considered three aspects

(a) sudden fight, (b) absence of premeditation and (c) no undue

advantage or cruelty. Considering the peculiar circumstances,

converted the conviction from section 302 to section 304 Part II of the

Indian Penal Code. Here in the case at hand, there was no sudden

fight. It was an attack made by the accused armed with knife with

clear intention to kill the deceased. The accused seems to have made

attack on deceased when deceased was busy in his work and never

thought of such attack at the hands of accused.

47. We are not impressed by the argument advanced by Mr.

Choudhari, learned counsel for the appellant. In the case at hand, it is

not a case of sudden fight in the heat of passion. As discussed herein

before, accused Shankar armed with knife by way of pre-plan rushed

to Shankar where he was weighing Soyabean and gave blow by knife

suddenly in the stomach of Shankar. Shankar could not get any time

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for his own defence. He was inattentive. This itself shows that accused

had intention to kill the deceased and that is why he was armed with

knife. Accused Tulshiram seems to have made attack on Shankar

without any quarrel with him. There was no exchange of words and

no fight amongst them. The citations relied upon by Mr. Choudhari

are not any way helpful to convert this case from section 302 to

section 304 Part II of the Indian Penal Code.

48. In view of the above, we are fully convinced with the trial

Court. The trial Court has not committed any error in law or on facts

while convicting the appellant Tulshiram for having committed

offence of murder of Shankar under section 302 of the Indian Penal

Code. There is no merit in the appeal.

49. Having regard to the above reasons and discussion, we

conclude and proceed to pass the following order:

ORDER

(i) The Criminal Appeal stands dismissed.

(ii) The impugned judgment and order passed by the Additional

Sessions Judge, Biloli is confirmed. The sentence awarded is

maintained.

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(iii) Mr. Shrikrishna U. Choudhari is appointed by this Court at State

expenses. His professional fees are quantified at Rs.5,000/-.

(iv) As per the request made by Mr. Shrikrishna U. Choudhari,

learned counsel for the appellant (appointed), the Secretary, High

Court Legal Services Sub Committee at Aurangabad is directed to

transfer the said fees of Rs.5,000/- to Covid fund of the State of

Maharashtra.

(v) Record and Proceedings be sent back to the trial Court.

    ( SHRIKANT D. KULKARNI )                               ( V. K. JADHAV )
            JUDGE                                               JUDGE

 S.P. Rane




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