Namdeo Kerappa Garale vs The State Of Maharashtra
2022 Latest Caselaw 2362 Bom

                                                    1 of 13                       apeal-17-14


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO. 17 OF 2014

                     Namdeo Kerappa Garale                         ..Appellant
                           Versus
                     State of Maharashtra                          ..Respondent
                                                 __________

                     Ms. Vilasini B. i/b. Mr. Jaydeep D. Mane for Appellant.
                     Ms. M. M. Deshmukh, APP for State/Respondent.
                                                   __________

                                            CORAM : SMT. SADHANA S. JADHAV &
                                                    SARANG V. KOTWAL, JJ.

                                       RESERVED ON            : 02nd MARCH 2022.
                                       PRONOUNCED ON          : 09th MARCH 2022.

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

1. The Appellant has challenged the Judgment and order

dated 29/05/2013 passed by the learned Additional Sessions

Judge, Pandharpur in Sessions Case No. 90 of 2011, whereby the

Appellant who was the sole accused was convicted for commission

of the offence punishable under section 302 of the Indian Penal

Code (for short 'IPC') and was sentenced to suffer Life

Digitally signed by Imprisonment and to pay a fine of Rs.1000/- and in default of VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2022.03.09 14:09:57 +0530 payment of fine to undergo further R.I. for one month. He was also

Gokhale 2 of 13 apeal-17-14

convicted for the offence punishable U/s.506 of IPC and was

sentenced to suffer R.I. for three months and to pay a fine of

Rs.500/- and in default of payment of fine to suffer further S.I. for

15 days. Both the sentences were directed to run concurrently. The

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

2. Heard Ms. Vilasini B., learned counsel for the Appellant

and Ms. Deshmukh, learned APP for the State.

3. The Appellant was convicted for committing murder of

one Kisan Bandgar. The F.I.R. was lodged by his son in law Nivrutti

Aldar. He was examined as PW-3. He has stated that the Appellant

and the deceased were having their lands in Zapachiwadi. The

Appellant had two wives Meena and Vimal. His relations with his

first wife Meena were strained because of his second marriage. He

used to beat her. The deceased had tried to separate their quarrel,

but the Appellant did not like it and had assaulted the deceased.

The deceased, in the past, had lodged a complaint against the

Appellant at Sangola police station. The Appellant was arrested and

then released. The Appellant used to sell the utencils from his 3 of 13 apeal-17-14

house. The first wife Meena had gone to stay with her parents and

before going she had kept the utencils in the house of the deceased.

The Appellant did not like that also and on all these counts he was

holding grudge against the deceased. The incident had taken place

on 30/09/2011. One Rajaram Aldar came to the informant-PW-3

and told him that the Appellant had given a blow of axe on the

deceased which caused his murder. The informant-PW-3 and others

rushed to the spot. They found the deceased lying in a pool of

blood. There were injuries on his head and cheek. The axe was

embedded in his skull. The people around there told the informant

that the Appellant had committed that act. Therefore, PW-3 went to

the police station and lodged this F.I.R. The F.I.R. is produced at

Exh.12.

In his cross-examination there was nothing of any

serious consequence. The minor omissions do not really affect his

evidence. In any case, he is not the eye witness to the incident. He

has spoken mainly about the past quarrel.

4. In this context, PW-16 Arjun Khadtare was examined. He 4 of 13 apeal-17-14

was a Head Constable on duty at Sangola police station on

28/08/2010. He had registered an N.C. complaint No.1606 of 2010

for the offence punishable under sections 323, 504 and 506 of IPC

against the Appellant, at the instance of the deceased in respect of

the incident which had taken place on 28/08/2010.

5. PW-17 Vinod Patil, another Head Constable, had deposed

about another N.C. complaint bearing No.1621 of 2010 under the

same sections, lodged by the deceased against the Appellant on

01/09/2010. Both these N.C. complaints are produced on record at

Exh.39 & 44. This witness had also initiated Chapter proceedings

against the Appellant in the year 2010. Thus, there was history of

enmity between the deceased and the Appellant.

6. The main evidence in this case is in the form of eye

witnesses. PW-9 Devappa Aldar is an eye witness. He has deposed

about the same reason for dispute between the deceased and the

Appellant as discussed herein above. On the day of incident at

1.30p.m. he was taking his sheep for grazing. He had reached

between the house of Jaywant Waghmode and Sukhkdeo Chavan 5 of 13 apeal-17-14

while going towards the field of the deceased. At that time, he saw

the Appellant with his axe. The Appellant asked this witness to

keep quiet. The Appellant went towards the house of Lavate. PW-9

heard shouts. He rushed towards Lavate's house. There he saw the

Appellant giving blow of axe on the head of the deceased. He was

trying to pull out the axe from the head of the deceased, but it was

firmly embedded in the skull. Vithal Lavate came there and asked

the Appellant to stop. Jaywant Lavate also came there. He also told

the Appellant to stop assaulting. The Appellant went away by

threatening the witnesses with a knife. The deceased was lying at

the spot in the pool of blood. He had suffered head injury. This

witness PW-9 came back to his locality and informed his nephew

Rajaram, who in turn, called PW-3. All of them came back to the

spot. There is an important omission from his police statement. In

the police statement the fact that he had seen the accused giving

blow on the head of deceased is not mentioned. That was the only

omission. But he had seen the appellant trying to take out axe from

the head. Thus, his presence at the scene at the time of incident is

sufficiently established.

6 of 13 apeal-17-14

7. PW-12 Vithal Lawate is another eye witness. He has

stated that, at the time of incident, at around 1.30p.m. he heard

shouts. He came out to see the commotion. He saw that the

appellant was trying to remove axe which was embedded in the

head of the deceased. The deceased was lying there. Jaywant

Waghmode also reached there at that time. The appellant

threatened them with a knife and then he went away. He is cross-

examined about the Appellant's two wives and about the

Appellant's dispute with the deceased. Beyond that, his cross-

examination is insignificant.

8. PW-13 Jaywant Lawate is also an eye witness. His

presence is spoken by PW-9 and PW-12. He has narrated the

incident in the same manner as is narrated by PW-9 and PW-12. In

his evidence also there was an omission from his police statement

about this witness having seen the Appellant giving blow of axe to

the deceased. But the Appellant's presence near the deceased and

the Appellant trying to take out the axe is consistently deposed.

9. PW-14 Jaywant Waghmode is another eye witness. His 7 of 13 apeal-17-14

land was near the land of the deceased. He has spoken about the

past history between the appellant and deceased. At about 1.30p.m.

on that day, he heard the shouts from his house. He went there. He

saw that the Appellant was trying to remove the axe from the head

of the deceased. This witness rushed there. The other witnesses

Jaywant and Vitthal had come there. The Appellant threatened all

of them. Jaywant told the accused to leave the deceased. He is

cross-examined about the Appellant having strained relations with

the villagers.

10. Apart from these main witnesses, the other witnesses are

not that important. PW-1 Shankar Aldar was a pancha for inquest

panchanama. PW-2 Suresh Pandhare was pancha for spot

panchanama. PW-4 Arun Shinde was A.S.I. attached to Sangola

police station. He had taken down the complaint given by PW-3.

PW-5 Nandkumar Dighe was a pancha for arrest panchanama of

the Appellant, who was arrested on 30/09/2011 itself.

11. PW-6 Dr. Mulani Akbar had conducted the postmortem

examination. There were four injuries. One was major injury on left 8 of 13 apeal-17-14

parieto occipital region of scalp with fracture of skull and brain

matter was oozing out. There was another C.L.W. of the size 12 x

6cm. on the left side of the angle of mandible. There was a C.L.W.

on left forearm and abrasion to right knee. The cause of death was

mentioned as "Death due to asphyxia due to head injury". The

postmortem notes were produced on record a Exh.21.

12. PW-7 Sopan Sargar was a pancha for seizure of clothes of

the deceased, as well as, the axe which was embedded in the head

of the deceased.

13. PW-8 Govind Kengar was the village Kotwal. At about 2

to 2.15p.m. on that day, he had gone to Tahsildar office of Sangola.

The Appellant was there. He told this witness that he had

committed murder of the deceased Kisan and was going towards

Sangola. Both of them took a ride in a jeep to go towards Sangola.

The police apprehended the Appellant at Sangola.

14. PW-10 Fulchand Sanap was a carrier of articles who had

carried the articles for C.A. examination.

15. PW-11 Subhash Chavan was a pancha. In his presence the 9 of 13 apeal-17-14

Appellant showed his willingness to produce his clothes and the

knife which he had thrown in the bushes near his house. The

articles were recovered under the panchanama.

16. PW-17 Vinod Patil carried out initial part of the

investigation. He had also spoken about the previous N.C.

complaint lodged by the deceased.

17. PW-18 A.P.I. Nandkumar Khadkikar was the investigating

officer. He has carried out the investigation.

18. The defence of the appellant was that of total denial. No

other specific defence was taken by the Appellant. The C.A. report

shows that there was human blood on the shirt of the appellant,

but no blood was found on other clothes and on knife produced by

the appellant. The blood of 'O' group was found on the clothes of

the deceased.

19. Learned counsel for the Appellant submitted that the

evidence of the eye witnesses is not true. There is inconsistency in

their depositions. She submitted that, none from the family

members of the deceased is examined. The prosecution has 10 of 13 apeal-17-14

suppressed the evidence of material witnesses. The recovery of

clothes and knife is innocuous and does not connect those articles

with the incident. The villagers were angry with the appellant and,

therefore, the eye witnesses who were also holding grudge against

the Appellant have implicated the Appellant falsely. Learned

counsel submitted that, it could be a case of grave and sudden

provocation as it has come on record that the Appellant used to get

angry. She relied on the Judgment of the Hon'ble Supreme Court in

the case of Kandaswamy Ramaraj Versus The State by Inspector of

Police, CBCID1, wherein, the Hon'ble Supreme Court considered the

history and temperament of the Appellant therein and it was held

that having been deprived of the power of self-control upon sudden

provocation by the children, without intention or premeditation he

had committed murder. Learned counsel submitted that, same

principle should apply to the facts of the present case.

20. Learned APP, on the other hand, relied on the evidence of

eye witnesses. She submitted that, it is a case of direct evidence.

The depositions are consistent. The Appellant had gone towards the

1 Criminal Appeal No. 259 of 2015 Decided on 07/22/2019.

11 of 13 apeal-17-14

deceased with an axe and thus, he had all the intention to commit

murder of the deceased. The motive is sufficiently established.

21. We have considered these submissions, as well as,

evidence on record. Having perused the depositions of the eye

witnesses carefully, we are satisfied that their evidence is

consistent, cogent and reliable. The presence of eye witnesses is

mentioned by each other. They have corroborated the depositions

of each other. Even the utterance of the eye witness is consistent

with other eye witness. There is absolutely no inconsistency

between the depositions of these eye witnesses. They are natural

eye witnesses. They were present in the vicinity and they had

immediately rushed to the spot on hearing the shouts; by that time,

the blow was given and the Appellant was trying to remove the axe

embedded in the skull of the deceased. The Appellant threatened

all of them and then went away from the spot. No evidence is

brought on record to show as to why these witnesses would

implicate the appellant falsely.

22. The prosecution has also proved the motive behind 12 of 13 apeal-17-14

murder. There has been constant incidents between the Appellant

and the deceased as mentioned earlier. In the past, the deceased

had lodged N.C. complaints against the Appellant. Those N.C.

complaints and Chapter proceedings are duly proved by the

prosecution by examining the police officers. On each of these

occasions, the appellant had assaulted the deceased.

23. There is another circumstance against the appellant in

the form of extrajudicial confession made to the village kotwal. In

the cross-examination of that witness PW-8, the defence had not

been successful to shatter his evidence. This is another

incriminating piece of circumstance against the appellant.

24. So far as recovery of clothes and knife is concerned, that

is a weak piece of evidence because the blood group of the blood

stains on the shirt of the appellant is not established. There was no

blood found on the knife and other clothes. The knife was not

actually used in the incident, but was used to threaten the

witnesses.

25. We are unable to agree with the submissions of learned 13 of 13 apeal-17-14

counsel for the appellant that the incident could have occurred

because of grave and sudden provocation and only one fatal blow

was given. The manner in which the blow was given shows clear

intention of the appellant to commit murder of the deceased. The

appellant had gone towards the deceased with an axe. Therefore,

there was preparation, premeditation and actual execution of his

intention to commit murder of the deceased. Thus, the prosecution

has proved the case against the appellant beyond reasonable doubt.

There is no reason to interfere with the impugned Judgment and

order.

26. The Appeal is, therefore, dismissed.

(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)