Ananda Alias Anna Tukaram Bargule vs The State Of Maharashtra
2022 Latest Caselaw 3650 Bom

                                                    1 of 17                 905-apeal-442-2019


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO. 442 of 2019

                     Ananda alias Anna Tukaram Bargule                    ..Appellant.
                          Versus
                     The State of Maharashtra                             ..Respondent

                                                 __________

                     Mr. Amit Mane for Appellant.
                     Ms. G. P. Mulekar, APP for State/Respondent.
                                                 __________

                                             CORAM : S. S. SHINDE AND
                                                     SARANG V. KOTWAL, JJ.

DATE : 05th APRIL 2022.

JUDGMENT: (Per Sarang V. Kotwal, J.)

1. The appellant has challenged the Judgment and order

dated 14/02/2019 passed by the Additional Sessions Judge, Sangli

in Sessions Case No.104 of 2016. Appellant was the sole accused

in that case. At the conclusion of the trial he was convicted for

commission of offence punishable U/s.302 of the Indian Penal

Code and was sentenced to suffer imprisonment for life and to pay

a fine of Rs.10000/- and in default of payment of fine to suffer S.I.

for six months. The appellant was acquitted of the charges of Digitally

commission of offence punishable U/s.506 of IPC. He was granted signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2022.04.07 17:39:44 +0530 Gokhale 2 of 17 905-apeal-442-2019

set off U/s.428 of Cr.p.c.

2. Heard Shri. Amit Mane, learned counsel for the

Appellant and Ms. Mulekar, learned APP for the State.

3. The prosecution case is that the applicant was serving as

C.R.P. F. Personnel and used to visit his village once in 2 to 3

months. He was having suspicion against the deceased Mahesh

because Mahesh used to send messages to the appellant's wife. On

21.04.2016, the appellant committed Mahesh's murder by

assaulting him with scythe. His cousin Vijay Bargule lodged the

F.I.R. The investigation was carried out and the appellant was

arrested. On the conclusion of the investigation chargesheet was

filed and the case was committed to the court of sessions.

4. During trial the prosecution examined eight witnesses.

Out of them four witnesses were eye witnesses. Two eye witnesses

turned hostile. The prosecution case rested on the evidence of the

remaining two eye witnesses who are sister and father of the

deceased Mahesh.

5. Learned counsel for the appellant submitted that both 3 of 17 905-apeal-442-2019

these eye witnesses were got up by the police because there was

no material against the appellant. The statements of these two eye

witnesses were recorded on 24/04/2016. There was no plausible

explanation as to why their statements were not recorded earlier,

though both of them were very much available in the village when

the police were making inquiry about the incident. Other eye

witnesses did not speak about their presence. He further submitted

that there was contradiction in identification of the article scythe

produced in the court. There is no corroborative piece of evidence

in the form of C.A. report etc, therefore, it was not safe to rely only

on the evidence of the two eye witnesses whose evidence was

doubtful in nature. He relied on certain judgments. Those will be

referred to in the following discussion.

6. On the other hand, learned APP submitted that there

was no delay in recording the statements of those eye witnesses.

Considering that PW-1 had lost her brother and PW-7 had lost his

son, it was not expected that they would give their statements

immediately and, therefore, on humanitarian ground, police

waited for four days to record their statements. The accused was 4 of 17 905-apeal-442-2019

already named by other eye witnesses in the meantime. Therefore,

investigation was proceeding on the right track. She submitted

that, motive is sufficiently established and the prosecution has

proved its case beyond reasonable doubt.

7. We have considered these submissions and with the

assistance of both learned counsel we have perused the evidence

and the impugned Judgment.

8. The prosecution has examined PW-4 Dr. Sunil Patil to

prove the injuries suffered by the deceased. This witness had

conducted Postmortem examination. He had found 10 injuries on

the dead body. They are in the nature of incised wounds and

CLWs. Apart from some abrasions, major injuries were on the

head. There was one incised wound on the left side of occipital

bone admeasuring 8 cm. x 2cm x 4cm. There was another incised

wound on the right side of face admeasuring 15cm. x 2.50cm x

4cm. from mid of forehead to right ear pinna with bleeding. There

was one C.L.W. on the left side of chin admeasuring 2.5cm. x

0.5cm. x 0.5c.m. There was an incised oblique wound at right 5 of 17 905-apeal-442-2019

scapula near medial border admeasuring 6cm. x 3cm. x 1cm.

There was another incised wound on the left arm. There was

C.L.W. on the left wrist and abrasions and other C.L.Ws. The cause

of death was mentioned as "death due to head injury". Thus, from

this evidence it is clear that the deceased had died homicidal death

and he was brutally assaulted with a sharp weapon on his head,

face and other parts of the body.

9. To prove it's case, the prosecution has relied on the

evidence of PW-1 Mahadevi Patil and PW-7 Ramchandra Bargule.

PW-1 Mahadevi was the sister of the deceased. She has stated that

the appellant was her distant cousin. His family resided in the

neighbourhood of PW-1's parent's house. The appellant used to

serve in C.R.P.F. at Gadchiroli as a police constable. He used to visit

home at Morale for a month's holiday after every two to three

months. Mahesh was her brother. Mahesh and the appellant were

friends. However, subsequently there used to be quarrels between

them. On one occasion the appellant had beaten Mahesh and his

own wife because he was suspecting their affair. The appellant's

wife had even tried to commit suicide. After that, a meeting was 6 of 17 905-apeal-442-2019

held between the elders and it was decided that the quarreling

parties would keep peace and the dispute was settled. According to

this witness, in spite of this settlement the appellant and his

brother used to threaten Mahesh. The incident in question took

place on 21/04/2016. This witness had come to visit her parents

for some religious ceremony. The incident had taken place at

5.00p.m. At that time, she was present in front of her house. She

was feeding her children on a cot in the courtyard. Her father was

giving fodder to his cattle. She saw that Mahesh and the appellant

were talking with each other under a Neem tree next to their

house. Suddenly she heard the shouts of Mahesh. She saw that

Mahesh was lying on the ground and the appellant was assaulting

him by scythe. PW-1 started shouting. She rushed towards Mahesh.

When she reached there, the appellant dropped his scythe at the

spot and ran away. She was followed by her father Dhanaji Bargule

and one Vijay Bargule. Persons from the neighbourhood gathered

at the spot. Somebody got a vehicle and Mahesh was taken to

Manjarde hospital and thereafter he was taken to Sangli Civil

Hospital. However, on the way Mahesh succumbed to his injuries.

7 of 17 905-apeal-442-2019

After four days of the incident, her statement was recorded by the

police. She has stated that, last rites were performed for three days

and then her statement was recorded on the 4 th day. She had

identified the weapon scythe which was produced on record as

Article 1.

In her cross-examination, she has deposed that, since

about 5 to 6 months before the incident there was hardly any

interaction between the appellant and the deceased. The appellant

had not attended the religious function on 19/04/2016 in her

parent's house. At the time of the incident, the appellant and

Mahesh were talking with each other for about half an hour and

then the appellant assaulted the deceased. Some questions were

put to her in the cross-examination as to whether police inquired

with her how the weapon was brought by the appellant. She did

not know about it. She had also told the police about parts of the

body where blows were given, but it was not mentioned in her

statement. Further cross-examination was regarding the delay in

recording her statement. She has stated that, on 21/04/2016

police had come to Bargule vasti. They did not come to their house 8 of 17 905-apeal-442-2019

on 22/04/2016. They had recorded statements of some persons

from the Bargule vasti on 23/04/2016. On 24/04/2016 she herself

had gone to the police station and there her statement was

recorded. She admitted that, between 21/04/2016 and

24/04/2016 she did not discuss this incident with anybody and till

then even police had not made inquiries with her. Apart from this

cross-examination, she denied all other suggestions.

10. PW-7 Ramchandra Bargule was father of the deceased

Mahesh. He has narrated the incident and background of the case

in the same manner as narrated by PW-1. At that time, he was near

his house and was feeding his cattle. He has described the incident

in the same manner as is described by PW-1.

In the cross-examination he has admitted that, he had

no personal knowledge about the messages sent by the deceased to

the appellant's wife. The police had come for inquiry in the

hospital. This witness was in the hospital. According to PW-7, he

had discussed about the incident with the police in the hospital.

11. Apart from these two eye witnesses, there are two more 9 of 17 905-apeal-442-2019

eye witnesses examined by the prosecution, but they turned

hostile.

12. PW-3 Vijay Bargule was, in fact, the first informant, but

he has not supported the prosecution case. He was cousin of both;

the appellant and the deceased. Since his answers in his

examination in chief were not in consonance with the F.I.R., he

was cross-examined by the learned APP after seeking permission

from the court. He was asked about the portions in his F.I.R. which

are marked as Portion marked "A" and "B". Those portions were

duly proved through the evidence of the investigating officer i.e.

PW-6 Sachin Vasmale, PSI, attached to Tasgaon police station, who

had recorded the F.I.R. He has stated that, on 21/04/2016, Vijay

Bargule had come to the police station and had lodged his F.I.R. He

had told the police that the appellant had assaulted the deceased

by Koyta. The portion marked 'A' and 'B' from his F.I.R. were duly

proved through this witness PW-6. The F.I.R. was marked as

Exhibit 40 and those portions were marked as Exhibit 40-A and

40-B. Since this F.I.R. and relevant portions from the F.I.R. are

proved through this evidence, the said portions can be referred to.

10 of 17 905-apeal-442-2019

In those parts of the F.I.R., it is mentioned that there was dispute

between the deceased and the appellant, because the appellant

was suspecting some affair between his wife and the deceased. In

the past also he had assaulted the deceased and his wife and

because of that, the appellant's wife had tried to commit suicide.

After that, there was some settlement, but no complaint was made

to the police station. PW-3 Vijay Bargule himself was aware of

those facts. On the date of the incident he had come near the

house of deceased. At that time, one Dhanaji called him. They

stopped near that spot. They were talking with each other. At that

time, Vijay Bargule saw the appellant and the deceased discussing

something. Dhanaji told this witness that he was not aware of

subject of the discussion. They were having some secret discussion.

Suddenly they heard shouts from Mahesh. They looked at the spot.

They saw that the appellant was assaulting the deceased with

scythe on his head and on the other parts of the body. Vijay and

Dhanaji went there and caught the appellant. However, he escaped

from there and ran away. He left the weapon at the spot. The

neighbours gathered there and then Mahesh was taken to the 11 of 17 905-apeal-442-2019

hospital. Thus, though this witness Vijay has not supported the

prosecution case, his F.I.R. and concerned portions from the F.I.R.

are duly proved by the prosecution through the evidence of I.O.

13. PW-5 Dhanaji Bargule was referred to by the first

informant Vijay in his F.I.R. PW-5 also turned hostile. His

contradictory version mentioned in his police statement which was

supporting the prosecution case was put to him. He was

confronted by referring to portions. Those portions were duly

proved through the evidence of PW-8 Mohamad Shaikh, PSI who

had recorded the statements U/s.161 of Cr.p.c. Those two portions

substantively matched with the story of the prosecution as deposed

by PW-1 and PW-7.

14. PW-2 Sajan Bahure was a pancha for various

panchanamas viz. Spot panchanama, seizure panchanam under

which clothes of the accused were seized and the panchanama

under which clothes of the deceased were seized. However, since

the C.A. report is not produced on record, his evidence is not

helpful to the prosecution case.

12 of 17 905-apeal-442-2019

15. PW-8 Mohamad Shaikh is the P.S.I. who had conducted

the investigation. He had recorded the statements of witnesses. He

has supervised the panchanamas. He collected the postmortem

report. The important feature in his cross-examination is that, he

had explained the specific question asked to him in the cross-

examination as to whether he had any problem in recording the

statements of PW-1 and PW-7 on 22/04/2016 and 23/04/2016. To

this, he specifically answered that, he was not having any problem

in recording their statements, but he did not feel it proper as their

mental condition was disturbed. He deposed that on 24/04/2016

he had not given any notice to these two witnesses to come to the

police station for recording of their statements. This, in short, is

the evidence brought on record by the prosecution.

16. Learned Judge relied on the evidence of PW-1 and PW-7

to convict the appellant. After giving due consideration to this

evidence, we also agree with the learned Judge in his conclusion.

We find that, evidence of PW-1 and PW-7 is quite reliable. There is

no reason to disbelieve their evidence. They were natural

witnesses. The incident had occurred near their house at around 13 of 17 905-apeal-442-2019

5.00p.m. when they were present near the spot. There is hardly

any infirmity in the evidence. They have described the dispute

between the appellant and the deceased. They have described the

incident in detail. The submission of learned counsel for the

appellant that, PW-1 had not mentioned in her statement, on

which part of the body blows were given; does not carry much

weightage because in that state of mind it was not expected that

she could describe these details. The injuries were confirmed by

the postmortem.

17. Learned counsel for the appellant relied on the

Judgment of the Hon'ble Supreme court in the case of State of

Orissa Vs. Brahmananda Nanda1 to contend that delay in recording

the statement of eye witness badly affects the prosecution case. We

have perused that Judgment. In that case the eye witness had not

named the accused as the assailant for a day and a half. The

Hon'ble Supreme court had observed that, it was not possible to

accept the explanation given by the prosecution that the said

witness did not disclose the name of the accused on account of

1 Criminal Appeal No.283 of 1971 decided on 31/08/1976.

14 of 17 905-apeal-442-2019

fear of the respondent. Hon'ble Supreme court held that, there

could be no question of any fear from the accused because he was

not known to be a gangster or a confirmed criminal about whom

people would be afraid. The police had already arrived at the

scene.

These reasons are specific to the facts before the

Hon'ble Supreme Court. In the present case, the prosecution has

explained that the I.O. did not record the statements of PW-1 and 7

before 24/04/2016 because they were not in a proper state of

mind. PW-1 had lost her brother and PW-7 had lost his son.

18. Learned counsel for the appellant relied on another

Judgment of the Hon'ble Supreme Court in the case of State of U.P.

Vs. Satish2. He relied on this case to contend that some delay in

recording statement of eye witnesses, affects the prosecution case.

In that case, the Hon'ble Supreme court had observed that, unless

the I.O. is categorically asked as to why there was delay in

examination of the witnesses, the defence cannot gain any

advantage therefrom. It cannot be laid down as a rule of universal

2 Criminal Appeal Nos.256-257 of 2005 decided on 08/02/2005.

15 of 17 905-apeal-442-2019

application that if there is any delay in examination of a particular

witness the prosecution version becomes suspect. It would depend

upon several factors. If the explanation offered for the delayed

examination is plausible and acceptable and the court accepts the

same as plausible, there is no reason to interfere with the

conclusion of conviction.

Applying these guidelines in this particular case before

us, the prosecution has explained as to why statements of these

were not recorded immediately. The explanation is plausible and

acceptable to us. Therefore, relying on this Judgment itself, we are

satisfied that recording of these witnesses' statement on

24/04/2016 does not affect the prosecution case.

19. Learned counsel for the appellant has made alternate

submissions. He submitted that the incident had occurred on a

spur of the moment because of sudden quarrel. There was no

premeditation and preparation on the part of the appellant.

Therefore, the offence would not fall within the definition of

section 300 of IPC. It would be a much lesser offence. He relied on 16 of 17 905-apeal-442-2019

the Judgment of Hon'ble Supreme court in the case of Shahajan

Ali and Ors. Vs. State of Maharashtra and Ors. 3. In that case an

altercation took place during discussion, where the deceased was

assaulted by the accused with a knife. In that case, the Hon'ble

Supreme Court had observed that, the case would fall within

Section 304-II of IPC and not U/s.302 of IPC. In the facts of that

case, the Hon'ble Supreme Court had held that, there was no prior

concert or intention to commit murder.

However, in the present case before us, it is clearly

established that the appellant had called the deceased for

discussion near the spot, the appellant had carried a deadly

weapon i.e. scythe with him, therefore, he had come there with

preparation, premeditation and with definite intention to commit

murder of the deceased. There was strong motive behind this act.

Therefore, it cannot be said that the offence would fall within the

meaning of Section 304 Part-I or 304 part-II of IPC. The deceased

was assaulted brutally and he had suffered many injuries including

some injuries on vital parts because of scythe. This case squarely

3 Criminal Appeal Nos.458-459 and 430 of 2014 decided on 23/05/2017.

17 of 17 905-apeal-442-2019

falls within the meaning of 'murder' defined under Section 300 of

IPC.

20. Thus, considering this discussion, we are satisfied that

the evidence of eye witnesses is cogent and reliable. The

prosecution has established its case beyond reasonable doubt. The

weapon was found at the spot. There was no infirmity in the

depositions of PW-1 and PW-7. Even PW-3's immediate version in

the F.I.R. is consistent with the deposition of PW-1 and PW-7.

21. Considering all this discussion, we do not find merit in

the appeal. The Appeal is accordingly dismissed.

(SARANG V. KOTWAL, J.)                           (S. S. SHINDE, J.)