Nivruti Ninaji Ghule (In Jail) vs State Of Maharashtra Thr. The ...
2022 Latest Caselaw 6538 Bom

                                        1                            331 apeal352.19(J).odt


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


                    CRIMINAL APPEAL NO. 352 OF 2019

APPELLANT                   : Nivrutti Ninaji Ghule,
                              Aged about 56 years, Occu. Labour
                              R/o Bhota, Tq. Nandura, Dist. Buldhana.

                                             VERSUS

RESPONDENT                  : State of Maharashtra,
                              Through The Officer In charge,
                              Jalamb Police Station,
                              Tq. Shegaon, Dist. Buldhana.

----------------------------------------------------------------------------------------------
          Shri M. L. Chouhan, Advocate (appointed) for the Appellant.
          Shri M. J. Khan, A.P.P. for the respondent / State
----------------------------------------------------------------------------------------------

             CORAM : SUNIL B. SHUKRE and G. A. SANAP, JJ.

Judgment Reserved on : JULY 01, 2022.

Judgment Pronounced on : JULY 12 , 2022

JUDGMENT : (Per : G. A. SANAP, J.)

1. In this appeal, challenge is to the judgment and order

dated 28th December, 2018 passed by the learned Additional Sessions

Judge, Khamgaon, Dist. Buldhana, in Sessions Trial No. 45 of 2013,

whereby the learned Judge has convicted the appellant for the

offence punishable under Section 302 of the Indian Penal Code and 2 331 apeal352.19(J).odt

sentenced him to suffer imprisonment for life and to pay a fine of

Rs.500/-. In default of payment of fine, he is ordered to suffer

rigorous imprisonment for one month.

2. The facts leading to this appeal are as follows :

The informant (PW1) is the father-in-law of deceased

Sharda. The incident occurred on 23rd of April, 2013 around 12.15

p.m. The appellant is the nephew of the informant. The facts

recorded in the first information report have unfolded the incident.

The appellant was raising dispute with the deceased and Shrawan,

husband of the deceased, for vacating the land. The informant on

the date of incident went to Khamgaon to see his daughter's son,

who was admitted in the hospital. At about 1.00 p.m. Laxman

Paraskar (PW8) made a phone call to him and informed him that the

appellant had assaulted his daughter-in-law by axe. Laxman (PW8)

requested the informant to come back immediately. Informant

(PW1) came back to his village. He saw that crowed gathered in

front of the house. He saw his daughter-in-law Sharda was lying in

the bathroom in a pool of blood. She had sustained injuries on her

head, neck and on back. The informant went to Jalamb police 3 331 apeal352.19(J).odt

station and lodged the report of incident. On the basis of this report,

a crime bearing No.21/2013 came to be registered.

3. Santosh Tale (PW13), Assistant Police Inspector,

attached to Jalamb Police Station, conducted the investigation. He

visited the spot of the incident and drew the spot panchanama. He

also held the inquest of the dead body. He collected and seized the

blood and blood mixed soil samples from the spot. He forwarded the

dead body to the General Hospital, Khamgaon for post mortem. He

arrested the appellant and seized the clothes worn by him. The

appellant during the course of investigation made a confession which

led to the discovery of axe used by the appellant for commission of

the crime. The Investigating Officer recorded the statements of the

witnesses and on completion of the investigation, filed charge-sheet

in the Court of learned Judicial Magistrate, First Class, Shegaon.

4. Since the case was exclusively triable by the Court of

Sessions, the learned Magistrate committed the case to the Court of

learned Additional Sessions Judge, Khamgaon. On committal, the

learned Additional Sessions Judge framed the Charge at Exhibit-2.

                              4                   331 apeal352.19(J).odt


The Charge was read over and explained to the appellant.             The

appellant pleaded not guilty. The defence of the appellant is of total

denial and false implication in the case.

5. In order to bring home the guilt against the appellant,

the prosecution examined 13 witnesses. The prosecution relied on

number of documents. The learned Additional Sessions Judge, on

consideration of the material on record, found the appellant guilty of

the offence punishable under Section 302 of the Indian Penal Code

and sentenced him as above. Being aggrieved by the judgment and

order of conviction, the appellant is before this Court in appeal.

6. We have heard Shri M. L. Chouhan, learned Advocate

appointed for the appellant and Shri M. J. Khan, learned Additional

Public Prosecutor for the State. With their able assistance we have

gone through the entire record and proceedings.

7. The first plank of the submission of the learned advocate

for the appellant is that the evidence adduced by the prosecution is

not sufficient to prove the charge against the appellant. Shri 5 331 apeal352.19(J).odt

Chouhan, learned advocate for the appellant took us through the

evidence of the witnesses and submitted that there are major

omissions, contradictions and inconsistencies in the evidence of the

witnesses examined by the prosecution to prove the actual

occurrence and the involvement of the appellant in commission of

the crime. In the submission of the learned advocate for the

appellant, the learned trial Judge has glossed over all these

omissions, contradictions and inconsistencies. The learned advocate

submitted that recovery of the weapon of the offence namely axe at

the instance of the appellant has not been proved by cogent and

reliable evidence. The second plank of the submission of the learned

advocate is that the prosecution has failed to prove that the appellant

had acted with pre-meditation or pre-planned to commit murder of

the deceased. In the submission of the learned advocate for the

appellant, at the most on the basis of the available evidence, the

knowledge that the injuries inflicted by him would result into death

of the deceased could be attributed to the appellant. The learned

advocate submitted that therefore, offence of culpable homicide not

amounting to murder, punishable under Section 304 Part-II of the

Indian Penal Code would be made out against the appellant.

6 331 apeal352.19(J).odt

8. Shri M. J. Khan, learned Additional Public Prosecutor for

the State submitted that there are two eye-witnesses to the actual

incident of murder of the deceased at the hands of the appellant.

The learned APP submitted that the evidence of the eye-witnesses

despite searching cross-examination has remained unshaken. The

learned APP submitted that there is other evidence to corroborate the

evidence of eye-witnesses on the actual involvement of the appellant

in commission of the crime. The learned APP submitted that the

appellant had made a confession before the police officer and the

said confession led to the discovery of weapon namely axe. The

learned APP submitted that on the clothes worn by the appellant at

the time of the incident, blood of the deceased was detected. The

learned APP submitted that the appellant had inflicted three blows

on vital parts of the body of the deceased and the deceased

succumbed to those injuries within no time. In the submission of the

learned APP, the intention of the appellant to commit murder of the

deceased is writ large. The learned APP submitted that the offence

of murder has been made out against the appellant.

7 331 apeal352.19(J).odt

9. We have made minute scrutiny of the evidence to

appreciate the submissions advanced by the learned advocate for the

appellant and the learned Additional Public Prosecutor for the State.

10. At the outset, it would be necessary to consider the

evidence of the Medical Officer who had conducted post mortem of

the dead body of the deceased. Dr. Sachin Gadekar (PW12) at the

relevant time was attached to the General Hospital, Khamgaon as a

Medical Officer. He conducted post mortem of the dead body on 23 rd

April, 2013. On examination of the dead body, he found following

external injuries -

1. There were three deep stab wounds as follows :

i] Stab wound of size 8 x 3 x 5 cm over the posterior of neck with evidence of fracture of cervical spine.

ii] Stab wound of size 5 x 3 x 3 cm on the right side of upper back near 10th rib.

iii] Stab wound of size 5.5 x 3 x 3 cm on left side of back at 11 th rib.

2. I could notice following wounds on the skull.

i] There was evidence of CLW (Contused lacerated wound) on right and left parietal region of scalp size 5 x 2 x 2 cm. There were evidence of fracture of skull below the aforesaid both CLW of size 4 x 2 x 2 cm.

ii] There was evidence lacerated wound over the left cerebral hemisphere with collection of blood inside the skull. 3] In the thorasic region there was evidence of laceration over the left lung of size 3 x 2 x 1 over posterior surface. 4] In the abdominal cavity there was evidence of laceration of both the kidneys approximately at the centre of size 3x2x2 cm 8 331 apeal352.19(J).odt

11. Dr. Gadekar (PW12) has opined that the cause of death

was due to grievous fatal injuries to the vital organs like brain, lungs

and kidneys. He has stated that the injuries were ante mortem and

sufficient to cause death. The post mortem report is at Exhibit-62.

In Column no.21, the Medical Officer has mentioned that the blood

was preserved as per police request. The clothes on the dead body,

post mortem report and the blood sample were handed over to a

Constable. Dr. Gadekar (PW12) has stated that the weapon of

offence namely axe was sent to him with the queries by the

Investigating Officer. He has stated that on inspection of the weapon

and the injuries mentioned in the post mortem report, he opined that

the injuries found on the body of the deceased could be caused by

the said weapon. The Medical Officer at the time of his evidence

identified the axe, which was sent to him for his opinion. Perusal of

the evidence of the Medical Officer would show that the injuries had

been caused on the vital parts of the body. The injuries were found

sufficient to cause death in ordinary course of nature. The injuries

were ante mortem. The cause of death and nature of death has been

prima facie established on the basis of his evidence. Besides, there is

other direct and corroborative evidence in order to come to a 9 331 apeal352.19(J).odt

conclusion that the deceased died homicidal death.

12. The informant (PW1) is not an eye-witness to the

incident. On the date of the incident he had gone to Shegaon to

meet his grandson, who was admitted in the hospital. In his

evidence it has come on record that he received a phone call about

occurrence of the incident and therefore, he came back to his village.

He found that the deceased was lying in the bathroom in a pool of

blood. He found three major injuries on her body. He made enquiry

with the people gathered on the spot. The eye-witnesses informed

him about the occurrence of the incident. He, therefore, went to the

police station and lodged the report.

13. Vikas Ghule (PW2) and Sudam Ghule (PW3) are the two

eye-witnesses. The learned Additional Sessions Judge found the

evidence of these two eye-witnesses worth credible and reliable.

Vilas Ghule (PW2) has deposed that the appellant assaulted the

deceased by means of an axe. He has stated that on the date of the

incident at about 11.30 am, he went to the house of Sudam Ghule

(PW3). He and Sudam were present in his house. Sudam was 10 331 apeal352.19(J).odt

cooking poha. Within 15 minutes of his reaching the house of

Sudam, they heard the cries "O maa O" (vks ek vks). After hearing

the cries, they came out of the house. They saw that the appellant

was inflicting the blows on Shardabai with an axe. The appellant,

according to him, inflicted axe blows on waist and neck of the

deceased. According to him, the incident occurred in the bathroom.

He has categorically stated that the appellant inflicted three blows

with an axe on the deceased. He has stated that after witnessing the

incident he got frightened and rushed to call Shrawan, the husband

of the deceased. He found Shrawan at a 'pan tapri' (kiosk). He

narrated the incident to him. When they rushed back to the spot,

they found that the deceased was lying in the bathroom. In his

evidence, Vilas (PW2) has described the clothes on the person of the

appellant at the time of the incident. He has stated that after

inflicting the blows with an axe, the appellant fled from the spot. At

that time, Sudam (PW3) went inside his house, which is adjoining to

the house of the appellant. In his cross-examination, he was

subjected to grueling inquiry. Perusal of his cross-examination would

show that while answering the relevant questions he has reiterated

and confirmed the incident. In his cross-examination, one omission 11 331 apeal352.19(J).odt

has been recorded. In order to verify the correct factual opposition,

we have perused his statement recorded by the police. In his

statement before the police, he had stated that the appellant gave

stroke of an axe to Shardabai on her neck, back and waist. We are

satisfied that his omission was wrongly recorded. He has stated this

fact to the Investigating Officer at the time of recording his

statement. He is the close relative of the deceased as well as of the

appellant. His house is in the vicinity of the spot. No suggestion has

been given in the cross-examination as to why he has deposed

against the appellant who is his close relative.

14. Another eye-witness is Sudam Ghule (PW3). In his

evidence, he has narrated the incident. He has categorically stated

that when the incident took placed at about 12.00 to 12.15 pm, he

was cooking poha. They heard the cries "O maa O" (vks ek vks)

from outside. They came out of the house and saw that the appellant

was inflicting the blows with an axe on the deceased. Vilas (PW2)

immediately rushed to call the husband of the deceased. He has

stated that daughter of deceased namely Anuradha was crying and

proceeding towards bathroom where her mother was lying. He has 12 331 apeal352.19(J).odt

stated that he picked up Anuradha and brought her to his house.

The appellant, according to him, was carrying an axe and therefore,

he closed his door and latched it from inside. He was frightened.

After some time people gathered on the spot and therefore, he

opened the door. He has stated that the deceased was lying in a pool

of blood in the bathroom. PW3 is the uncle of Shrawan. A probing

cross-examination has been conducted. However not an iota of

material has been brought on record to dis-lodge this witness from

the first hand account of the incident narrated by him. This witness

has categorically stated that Vilas (PW2) was present in his house

and after hearing the cries of the deceased, they came out and saw

that the appellant was inflicting blows on the deceased with an axe.

15. The only thing which can go against these two eye-

witnesses is that after seeing the merciless assault on the deceased,

they did not bother to intervene and save the deceased. The

appellant at the time of the incident was 50 years old. It has come

on record that the appellant was residing alone because his wife had

left him due to the quarrel. Vilas (PW2) and Sudam (PW3) on the

date of the incident were below 20 years of age. They have deposed 13 331 apeal352.19(J).odt

that after seeing the brutal attack they got frightened. Vilas (PW2)

immediately rushed to call the husband of the deceased. Sudam

(PW3) picked up the daughter of the deceased from the spot when

he saw that the small girl was proceeding towards the place of the

incident to see her mother and brought her in his house. In our

opinion, the brutality of assault by the appellant on the deceased

could have been a frightful sight for Vilas (PW2) and Sudam (PW3).

They saw the merciless blows inflicted on the deceased by the

appellant. They could see depravity of the appellant. In our opinion,

therefore, their conduct would not weigh against PW2 and PW3 and

affect their credibility. It is seen that they were natural witnesses.

Their presence on the spot was natural inasmuch as the place of

occurrence could be seen from the house of PW3. Both PW2 and

PW3 have narrated the first hand account of the incident witnessed

by them. Perusal of their evidence, more particularly their cross-

examination, would show that not a slightest dent has been caused

to their credibility. The incident of assault by the appellant with an

axe on the deceased has been proved on the basis of the evidence of

these two eye-witnesses. We do not see any reason to discard and

disbelieve the evidence of these two witnesses.

14 331 apeal352.19(J).odt

16. The next important witness, who has deposed in the

case to corroborate the version of Vilas (PW2) and Sudam (PW3), is

Pankaj Paraskar (PW9). It is the case of the prosecution that after

brutal attack on the deceased, the appellant fled from the spot with

the weapon of the offence. Pankaj (PW9) has stated that his father is

a Police Patil. He has stated that on 23 rd April, 2013 at about 12.30

to 12.45 pm he was took lunch at his house. His parents had gone to

Nandura to attend the meeting of Anganwadi work. After completion

of his lunch, he was sitting in the house. He has stated that the

appellant came to his house holding an axe stained with blood. The

appellant made enquiry about his father. He has stated that the

appellant requested him to take axe in his possession. He has stated

that he told the appellant that he would not take it and he should go

to the police station. He has categorically deposed that the appellant

disclosed to him that he had killed Sharda by axe. He has stated that

after the appellant left his house, he made a phone call to his father

and informed him about the incident. It has come on record in his

cross-examination that his house is at the distance of five minutes

walk from the house of the informant (PW1). While recording his

statement by police he has not specifically disclosed that the 15 331 apeal352.19(J).odt

appellant told him that he had killed Sharda. The omission was in

respect of the name of the deceased. The witness had stated before

the police that the appellant told him that he killed " vairi". It is to be

noted here that the deceased was the wife of the nephew of the

appellant. It can be seen that in that part of Buldhana district,

daughter-in-law is called as "vairi". In view of this, the omission is

not material. Pankaj (PW9) has narrated in great detail the extra-

judicial confession made by the appellant to him. It is undisputed

that the father of Pankaj (PW9) is a Police Patil. The appellant, it

seems that, after realizing the blunder committed by him, went to

the house of Police Patil, but the Police Patil was not found at the

house. His son Pankaj (PW9) was found and the appellant narrated

killing of the deceased by him with an axe. PW9 saw that the axe

carried by the appellant was stained with blood. We do not see any

reason to discard and disbelieve this witness. On appreciation of the

evidence, possibility of planting this witness to support the case of

the prosecution has been completely ruled out.

17. Evidence of the eye-witnesses namely Vilas (PW2) and

Sudam (PW3) has proved the actual incident and the complicity of 16 331 apeal352.19(J).odt

the appellant in commission of crime. This part of the incident and

conduct of the appellant after the brutal murder has been proved on

the basis of evidence of Pankaj (PW9). It would, therefore, be

necessary to consider the other corroborative evidence.

18. The clothes of the deceased were seized. The blood and

blood mixed soil from the spot were also seized. During the course

of investigation, the blood sample of the appellant was collected. It

is the case of the prosecution that after arrest of the appellant, he

made a confession and on the basis of his confession, an axe was

recovered. The appellant was arrested on the same day of the

incident at about 20.45 hours. On his arrest, the clothes namely

yellow colour payjama and bluish colour sando baniyan were seized.

The seizure panchanama of the clothes on the person of the

appellant is at Exhibit-37. The appellant made a confession on 25 th

of April, 2013 in presence of the panch witnesses and the

Investigating Officer. Arvind Paraskar (PW7) is the panch witness to

the memorandum and discovery panchanama.

19. Perusal of the evidence of Arvind Paraskar (PW7) would 17 331 apeal352.19(J).odt

show that on 25th of April, 2013, he was called by the police to act as

a panch witness. He has stated that one Murlidhar was another

panch. He has stated that the appellant had confessed that he would

point out the place where the weapon (axe) was concealed by him.

Exhibit-42 is the memorandum panchanama. He has stated that the

appellant led the panchas and police to an agricultural land of one

Amol. The appellant in their presence took out an axe from the heap

of sprinkler pipes. The only discrepancy which has been brought on

record in his cross-examination was in regard to the timing of

recording of the memorandum and discovery panchanama. In his

cross-examination, he has stated that memorandum panchanama

was prepared after 11.00 a.m., whereas the memorandum

panchanama would show that it was prepared between 8.25 am and

8.45 am. He has stated that the discovery panchanama was prepared

after 11.00 a.m., whereas perusal of the discovery panchanama

would show that it was commenced at 10.10 am and completed at

10.45 am. On the basis of difference of timings, it was submitted

that recovery of the weapon pursuant to the confession of the

appellant and at the instance of the appellant is doubtful. In our

opinion, evidence of Arvind (PW7) and evidence of the Investigating 18 331 apeal352.19(J).odt

Officer if read together would show that the discrepancy as to the

time is not material. There is difference of about two hours in the

timings mentioned in the panchanamas and as deposed by Arvind

(PW7) in the Court. The evidence on record would show that the

axe was found stained with blood. The blood group of the blood

found on the axe was of group "A". In the totality of the evidence

brought on record and in the circumstances, we do not see any

reason to discard and disbelieve the aspect of recovery of weapon

axe at the instance of the appellant. Evidence of Pankaj (PW9) to

whom the appellant wanted to handover the axe stained with blood,

fully corroborated the evidence of recovery of axe stained with blood.

20. Let us now discuss the other corroborative evidence. The

Investigating Officer has stated that the articles seized in the crime

were sent to the Chemical Analyser for analysis. The CA reports are

at Exhibits-76, 77 and 78. The report Exhibit-76 would show that

the clothes seized from the body of the deceased and the clothes

seized from the appellant were found stained with blood of group

"A". Similarly, it would show that the blood found on the axe was of

group "A". The CA report at Exhibit-77 would show that blood group 19 331 apeal352.19(J).odt

of the appellant is of group "A". The CA report at Exh.78 would show

that blood group of the deceased was also of group "A". On the basis

of these documentary evidence it is submitted by the learned

advocate for the appellant that this evidence cannot be used against

the appellant. We are not prepared to accept this submission. The

appellant was arrested by the Investigating Officer on the day of the

incident. There were no bleeding injuries or any injury on the body

of the appellant at the time of his arrest. It is not suggested in the

cross-examination of any of the witnesses that the appellant had

sustained bleeding injury and therefore, the blood found on his

clothes was his own blood. It is further pertinent to mention that the

blood of group "A" was detected on the axe. There was no injury on

the person of the appellant at the time of his arrest. The blood group

of the deceased was of group "A". It can, therefore, be stated with

certainty that the blood detected on the axe was of the deceased.

This evidence, in our opinion, corroborates the evidence of eye-

witnesses Vilas (PW2) and Sudam (PW3) and the evidence of Pankaj

(PW9).

21. On re-appreciation of the entire evidence, we do not see 20 331 apeal352.19(J).odt

any reason to discard and disbelieve the evidence. On the basis of

the evidence on record, it has been proved that the appellant was the

author of the injuries sustained by the deceased. The weapon used

by the deceased for causing injuries has been proved to be an axe.

The Medical Officer in his evidence has stated that the injuries found

on the body of the deceased could be caused by an axe. It has come

on record that the Investigating Officer had forwarded the axe to the

Medical Officer and obtained his opinion. In this case, therefore, the

complicity of the appellant in the commission of the crime has been

proved beyond reasonable doubt.

22. It would now be necessary to deal with the submissions

advanced by the learned advocate for the appellant on the aspect of

the actual offence made out against the appellant. In order to seek

support to his submission that the offence made out against the

appellant would be culpable homicide not amounting to murder, he

has placed reliance on three reported decisions, namely :

1] Ankeri .vs. State of Rajasthan, reported in 1994 AIR 842 2] Kulesh Mondal .vs. State of West Bengal, reported in AIR 2007 SC 3328 3] Nazir Malitha and others .vs. State of West Bengal, reported in 2019 All SCR (Cri) 1267 21 331 apeal352.19(J).odt

23. We have perused the decisions relied upon by the

learned advocate for the appellant. The proposition which is culled

out from the aforesaid decisions is that if the intention of the accused

either proved or unfolded was not to commit murder but to cause

some grievous injury, the offence punishable under Section 304 Part-

II of the Indian Penal Code would get attracted. It is further held

that if there is direct evidence or some evidence to infer that the act

was committed in the course of sudden quarrel without any pre-

meditation, then in that event such an act would fall within

Explanation - 4 of Section 300 of the Indian Penal Code, warranting

punishment under Section 304 Part-I or Part-II of the Indian Penal

Code.

24. In this case, the intention of the appellant would be

required to be gathered from the nature and manner of the assault

on the deceased by the appellant. Similarly, the weapon used by the

appellant would also be required to be taken into consideration while

considering the state of mind of the appellant at the time of the

incident. It is nobody's case that the deceased either quarrelled with

the appellant or insulted him in any manner before the actual 22 331 apeal352.19(J).odt

occurrence of the incident. The informant (PW1) has deposed that

there was a dispute between the appellant on one hand and the

deceased and her husband on the other hand on account of vacating

the land. This fact would show that the appellant wanted the

deceased and her husband to vacate his land and on that account

there was a dispute. This, in our view, would be the motive for the

appellant to commit this brutal crime. The appellant inflicted three

blows on the vital parts of the body of the deceased. The deceased,

as can be seen from the evidence of the Medical Officer, died

instantaneously. The injuries were on vital parts of the body. The

appellant did not give her a chance to move or defend herself. The

prosecution has proved the brutality and depravity of the appellant.

He had preplanned the attack and therefore, he came there with an

axe. The intention, therefore, of the appellant has been proved to be

to eliminate the deceased. Therefore, in this case, the offence made

out is murder of the deceased by the appellant, punishable under

section 302 of the Indian Penal Code. In the teeth of the available

evidence, we are not convinced to accept the submission advanced

by the learned advocate for the appellant that the offence proved in

this case would be culpable homicide not amounting to murder 23 331 apeal352.19(J).odt

punishable under Section 304 Part-II of the Indian Penal Code.

25. In view of the above, we hold that there is no substance

in the appeal. The learned Additional Sessions Judge, Khamgaon has

recorded the cogent reasons in support of his findings. On re-

appreciation of the evidence, we do not see any reason to take a view

different from the one taken by the learned Additional Sessions

Judge. The appeal, therefore, fails. The same is accordingly

dismissed.

We appreciate the able assistance extended by learned

advocate Shri M.L. Chouhan appointed for the appellant by the Court

and the learned Additional Public Prosecutor for the State.

Shri M. L. Chouhan, learned advocate appointed for the

appellant is entitled to receive his fees from the High Court Legal

Services Sub Committee, Nagpur, which is quantified at Rs.15,000/-.

                                    (G.A.SANAP, J.)             (SUNIL B. SHUKRE, J.)
                      Diwale




Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:12.07.2022
17:24