Devidas S/O. Bhika Nawghare And ... vs The State Of Maharashtra
2022 Latest Caselaw 4771 Bom

                                                Cri.Appeal No.775/2018 with
                                                     Cri.Appeal No.496/2020
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.775 OF 2018


 1)       Devidas s/o Bhika Nawghare,) Separate appeal
          Age 35 years, Occu. Agril. ) filed as per Court's
                                     ) order dated 8/9/2020
 2)       Kailas s/o Bhika Nawghare, )
          Age 41 years, Occu. Agril. )

 3)       Shivram Suba Nawghare
          Age 64 years, Occu. Agril.

 4)       Uttam Suba Nawghare,
          Age 61 years, Occu. Agril.

 5)       Shivdas Shivram Nawghare, ) Separate appeal
          Age 37 years, Occu. Agril. ) filed as per Court's
                                     ) order dated 8/9/2020
 6)       Vilas Shivram Nawghare     )
          Age 29 years, Occu. Agril. )

          All R/o Kapuswadi, Tq. Jamner,
          District Jalgaon                        ... APPELLANTS

          VERSUS

 The State of Maharashtra,
 (Copy to be served on P.P.
 High Court of Bombay,
 Bench at Aurangabad)                             ... RESPONDENT

                                .......
 Shri Govind Kulkarni, Advocate for appellants
 Mrs. R.P. Gaur, A.P.P. for respondent
                                .......

                                      WITH

                CRIMINAL APPEAL NO.496 OF 2020 WITH
                CRIMINAL APPLICATION NO.2302 OF 2020




::: Uploaded on - 06/05/2022                      ::: Downloaded on - 07/05/2022 05:57:23 :::
                                                 Cri.Appeal No.775/2018 with
                                                     Cri.Appeal No.496/2020
                                   :: 2 ::



 1)       Devidas s/o Bhika Nawghare,
          Age 36 years, Occu. Agril.
          R/o Kapuswadi, Tq. Jamner,
          District Jalgaon

 2)       Kailas s/o Bhika Nawghare,
          Age 42 years, Occu. Agril.
          R/o Kapuswadi, Tq. Jamner,
          District Jalgaon

 3)       Shivdas Shivram Nawghare,
          Age 38 years, Occu. Agril.
          R/o Kapuswadi, Tq. Jamner,
          District Jalgaon

 6)       Vilas Shivram Nawghare
          Age 30 years, Occu. Agril.
          R/o Kapuswadi, Tq. Jamner,
          District Jalgaon                        ... APPELLANTS

          VERSUS

 The State of Maharashtra,
 (Copy to be served on P.P.
 High Court of Bombay,
 Bench at Aurangabad)                             ... RESPONDENT

                                .......
 Shri N.S. Ghanekar, Advocate for appellants
 Mrs. R.P. Gaur, A.P.P. for respondent
                                .......

                               CORAM :       R. G. AVACHAT, J.
                  Date of reserving judgment : 6th January, 2022
                  Date of pronouncing judgment : 5th May, 2022

 JUDGMENT:

Both these appeals are being decided by this

common judgment since the challenge therein is to a

Cri.Appeal No.775/2018 with Cri.Appeal No.496/2020 :: 3 ::

judgment and order dated 15/10/2018, passed by Additional

Sessions Judge, Jalgaon in Sessions Case No.92/2012. The

appellants have been convicted for the offences punishable

under Sections 304 (Part-II), 143, 147 and 148 read with

Section 149 of the Indian Penal Code and sentenced to suffer

rigorous imprisonment for ten years and to pay fine of

Rs.1000/- each, in default to undergo simple imprisonment

for three months for the offence punishable under Section 304

Part-II of the Indian Penal Code; rigorous imprisonment for

three years and to pay fine of Rs.5000/- each, in default to

suffer S.I. for one month for the offence punishable under

Section 148 read with Section 149 of the Indian Penal Code;

rigorous imprisonment for two years and fine of Rs.200/-

each, in default to suffer S.I. for 15 days for the offence

punishable under Section 147 read with Section 149 of the

Indian Penal Code; and rigorous imprisonment for six months

and to pay fine of Rs.100/- each, in default to suffer S.I. for 7

days for the offence punishable under Section 143 read with

Section 149 of the Indian Penal Code. The substantive

sentences of imprisonment have been directed to run

concurrently.

2. The appellants were charged with the offence

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punishable under Section 302 read with Section 149 of the

Indian Penal Code. The trial Court acquitted the appellants of

the offence punishable under Section 302 of the Indian Penal

Code, holding it to be an offence punishable under Section

304 (Part-II) of the Indian Penal Code.

3. The facts giving rise to the present appeals are as

follows :-

Pravin Gopal (deceased) and his family members

owned a piece of land (House site) at village Kapuswadi,

Taluka Jamner, District Jalgaon. One Vinod Waghmare had

started residing on the said plot with the consent of the family

members of deceased Pravin. Vinod Waghmare planned to

make a permanent construction on the land. He, therefore,

collected building material. Deceased Pravin and his parents

had asked him to not make any construction on the site. As

he was not in a listening mood, they evicted Vinod from the

plot. Vinod is the brother-in-law of appellants Kailas and

Devidas. Since the day of eviction of Vinod, relationship

between these two appellants on one hand and the family of

deceased Pravin on the other had not been good.

Raju Gopal (P.W.5), cousin of deceased Pravin was

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present outside his house by 2.00 p.m. of 8/4/2012.

Appellant Devidas gave him two slaps. The quarrel was,

however, settled then and there.

4. At about 9.30 p.m. on the same day (9/4/2012),

deceased Pravin had a quarrel with his mother over her

permitting Vinod to reside on the family plot. Deceased

Pravin was also annoyed by appellant Devidas to have slapped

Raju in the afternoon. Appellant devidas was around. He was

armed with a stick. He first assaulted on the ear of Pravin

with stick. He gave second stick blow on Pravin's back. Other

appellants thrashed Pravin with fisty-cuffs and kicks. Pravin,

therefore, started running away with a view to save his life.

There was a well in the nearby. All the appellants chased him.

All of them again beat up Pravin. While running away, Pravin

stopped at the parapet wall of the well. All the appellants

again thrashed him there. As a result, Pravin fell into the

well. He was immediately taken out of the well to find him to

have passed away.

5. P.W.5 Raju, therefore, lodged the First Information

Report (Exh.86). Crime vide C.R. No.50/2012 came to be

registered with Jamner Police Station for the offence

punishable under Sections 302, 143, 147, 148, 149, 323, 504,

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506 of the Indian Penal Code. The scene of offence

panchanama was drawn. Clothes on the person of the

deceased were taken charge of under the panchanama.

Appellant Devidas gave a disclosure statement, pursuant to

which a stick used in commission of the offence came to be

recovered. Mortal remains of Pravin was subjected to post

mortem examination (p.m.). The p.m. report indicates he

died of haemorrhagic shock due to multiple injuries. On

completion of the investigation, the appellants were

proceeded against by filing a charge sheet before the learned

Judicial Magistrate, First Class, Jamner, who in turn,

committed the case to the Court of Sessions.

6. Learned Additional Sessions Judge framed the

charge (Exh.53). The appellants pleaded not guilty. It is their

case that, the deceased had a quarrel with his mother. His

relations, therefore, had beaten him up. Since he could not

bear with the beating at the hands of his own relations, he

committed suicide by jumping into a well.

7. The prosecution examined 10 witnesses and

produced in evidence certain documents. On appreciation of

the evidence in the case, the learned Additional Sessions

Judge convicted and sentenced the appellants as stated

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above.

8. Heard learned Advocates appearing for the

appellants. Also heard learned A.P.P. for the State. It was

submitted by the learned Advocates appearing for the

appellants that, the material witnesses examined on behalf of

the prosecution were all relations of the deceased. There is

inconsistency inter-se the evidence of the eye witnesses. No

independent witnesses have been examined. The p.m. report

(Exh.93) indicates the deceased to have suffered no serious

injuries. Except the appellant Devidas, others are alleged to

have assaulted the deceased with fists and kicks. Due to

accidental fall of the deceased into a well, he suffered fatal

injury. There was no much water in the well. There was an

iron foundation for placing an electric motor in the well. The

deceased might have suffered injuries due to fall thereon and

on rocky bottom of the well. According to learned counsel, it

would at the most be an offence punishable under Section

324 or 323 of the Indian Penal Code. The appellants have

been behind the bars for little over three and half years.

They, therefore, urged for allowing the appeal.

9. The learned A.P.P., on the other hand, submits

that, presence of the eye witnesses at the scene of offence is

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undisputed. The appellants had mercilessly beaten up the

deceased in the presence of his mother. While the deceased

started running away to save his life, the appellants chased

him and again beat him up on the parapet wall of the well. As

a result of severe beating, the deceased fell into the well. He

died of the injuries suffered due to the beating which is also

the cause for his fall in the well. The p.m. report undoubtedly

indicates the deceased died of haemorrhagic shock due to

multiple injuries. He did not die of asphyxia due to drowning.

According to learned A.P.P., the family members of the

deceased and the appellants have relations inter-se. The eye

witnesses are relations of the appellants and their evidence,

therefore, cannot be branded as that of the interested

witnesses. The learned A.P.P. would submit that, the trial

Court has rightly convicted the appellants. She urged for

non-interference with the impugned order.

10. Considered the submissions advanced. Perused

the evidence relied on. Although the prosecution had

examined 10 witnesses to bring home the charge, for deciding

the present appeal, the relevant evidence would be that of the

three eye witnesses and the medical officer who conducted

the p.m. examination. Needless to mention, rest of the

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witnesses were panchas to the scene of offence panchanama,

seizure of stick and clothes as well. The witnesses did not

stand by the prosecution. Rest of the two witnesses are

police officials who participated in the investigation. One of

them had carried vicera to Central Forensic Science

Laboratory for analysis. The other one is the investigating

officer Dilip Shirsath (P.W.10).

11. Let us appreciate the evidence. P.W.5 Raju had

lodged the F.I.R. (Exh.86). It is in his evidence that, Vinod

Waghmare was residing on the property owned by his uncle

Dnyandeo. Vinod wanted to make some permanent

construction on the said property. He and deceased Pravin

had, therefore, asked him not to make any construction.

Pravin, therefore, evicted Vinod from the said place about 4 -

5 days prior to the incident dated 8/4/2012. On account of

Vinod having been evicted from the property, his brothers-in-

law, appellant Devidas and Kailas got annoyed. Devidas gave

him (Raju) 2 - 3 slaps on his face. The quarrel was, however,

settled then and there. It is further in his evidence that, on

the same day at about 8.00 p.m., opposite the house of one

Ratan Navghare, Pravin (deceased) questioned his mother as

to why Vinod was permitted to make construction at the

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place. Pravin also stated her that appellant Devidas had

slapped Raju over the said issue. It is further in his evidence

that, at that time, the appellant Devidas assaulted Pravin on

his ear and back with a wooden stick. Other appellants beat

him with fisty-cuffs and kicks. Mother and sister of the

deceased Pravin intervened to rescue him. Devidas,

therefore, beat him up with stick. Other appellants also beat

up the mother and sister of the deceased. Pravin, with a view

to save himself, tried to go towards his house. Appellant

Devidas again beat him up with wooden stick near public well.

Pravin fell on the parapet wall of the well. Other appellants

again beat him up with fists and kicks. As a result, Pravin fell

in the well. The appellants fled from the scene. It is further

in his evidence that, Ganesh and Vilas immediately took

Pravin out of the well with the aid of rope. Blood was oozing

from Pravin's ear. Pravin was dead. He, therefore,

immediately went to Jamner Police Station and lodged the

F.I.R. (Exh.86).

12. In response to the questions put to him during

cross-examination, he replied that, Savita and Sunandabai

were sisters of Pravin. Vikas and Ganesh were cousins of

deceased Pravin. Vinod Waghmare hailed from village Khadki

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Borgaon. As Vinod was in the relation and belonging to the

same community, he was given the place to reside for 15

days. Vinod was residing along with his family members. It

was a room of tin sheets. Vinod and his wife were doing

labour work to earn their living. It is further in his evidence

that, there was no dispute regarding the said property until

Vinod vacated it. It has also come in his evidence that, he did

not lodge any police report for having been slapped by

appellant Devidas in the afternoon on 8/4/2012. He further

testified that, deceased Pravin was abusing his mother. He

was trying to take him home. Pravin was in the hit of anger

with his mother. Pravin's father and his (Raju's) father had

gone to Dhule on that day. He specifically denied the

suggestion that, Pravin was beaten by him since Pravin was

abusing his mother. He also denied his suggestion that Pravin

lost his balance during shuffle with him (Raju) and as a result

he fell in the well. He also testified that he had discussion

with the relatives and then it was decided to lodge F.I.R.

against the appellants.

13. P.W.6 Ganesh is another eye witness. It is in his

evidence that, appellant Kailas and Devidas had grudge on

account of Vinod to have been evicted from the room. It is

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further in his evidence that, the incident took place by 9.30

p.m. on 8/4/2012 opposite the house of one Ratan Navghare.

Pravin, his mother Sumanbai and Raju (P.W.5) were present

there. Pravin was abusing his mother. Pravin had asked his

mother to come home. Appellant Devidas gave 2 - 3 slaps to

Pravin. He also beat Pravin with wooden stick. Rest of the

appellants beat up Pravin with fists and kicks. It is further in

his evidence that, he himself, Vikas and Raju intervened to

rescue Pravin. Pravin, to save himself, started going towards

his house. The appellants followed and again beat him up.

The said beating took place near Grampanchayat well. Pravin

fell into the well as a result of beating. The appellants went

away.

14. During his cross-examination, P.W.6 Ganesh

testified that, Vinod had not brought construction material at

the site. He volunteered to state that Vinod had stated that

he would initiate construction on the land given to him for

residence. It is in his evidence that, Pravin did not want

Vinod to be permitted to stay on their family property. Vinod

was made to vacate the site. Vinod, therefore, left the

village. It is further in his evidence that, he had returned from

the field by 6.00 p.m. on 8/4/2012. He denied the

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suggestions that Pravin was alive before he fell into the well.

He also denied that Pravin died due to fall in the well. Some

omissions amounting to contradictions have also been

brought on record during his cross-examination. He claimed

to have stated the police that Devidas had given 2 - 3 slaps

to Pravin. Devidas had also beaten up Pravin on his leg with

a stick. Other appellants had also beaten up Pravin near the

well. He, however, denied that, Pravin died as a result of

injury suffered on account of his fall in the well.

15. On the same line is the evidence of the mother of

the deceased. P.W.7 Sumanbai was Pravin's mother. It is in

her evidence that, it was about 9.30 p.m. Pravin, his sister

Savita, Raju (P.W.5) and herself were present opposite the

house of one Ratan Navghare. Pravin was abusing her as he

(Pravin) had stated that appellant Devidas had beaten up

Raju (P.W.5). Pravin was asking her to go home instead of

remaining there. It is further in her evidence that, appellant

Devidas brought a wooden stick. He beat up Pravin on his

ear with the said stick. Stick blow was also given on Pravin's

leg. Other appellants beat up Pravin with fisty-cuffs and

kicks. She and Raju (P.W.5) intervened to save Pravin.

Pravin ran towards the house to save himself. While Pravin

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was near Grampanchayat well, the appellant Devidas again

beat up him with a stick. It is further in her evidence that,

the appellant threw Pravin in the well.

16. During her cross-examination, it has come on

record that, Vinod had vacated the place soon after he was

asked to vacate. She testified to have stated to the police in

her police statement that the appellants threw Pravin into a

well. The same, however, does not find place in her police

statement. She denied to have falsely implicated the

appellants.

17. P.W.8 Dr. Milind had examined the dead body of

Pravin. It is in his evidence that he performed p.m. on mortal

remains of Pravin. Clothes on the person of Pravin were wet

with water stains with blood and soil. His body was well

nourished. Rigour mortis weel marks were present on whole

body. He noticed following external injuries on the person of

deceased

(1) Transverse scar of blunt trauma on abdomen

(2) Scar on blunt trauma on chest at 4th cervical rib in a

mid clavicular line.

(3) Scar of blunt trauma on right thigh at mid femoral point.

Cri.Appeal No.775/2018 with Cri.Appeal No.496/2020 :: 15 ::

 (4)      CLW on scalp temporal region size

          about 7.5 cm. X 2.5 cm. X 1.00 cm.

 (5)      Cut wound on right ear pinna about 0.5 cm. long.

 (6)      Contusion marks on both elbow joints.

According to him, the aforesaid injuries were ante

mortem. There was haematoma in the temporal region.

Fourth cervical rib fracture in mid clavicular line with

haemothorax present. Peritoneal haematgota in sub

difragmatic region present. Stomach contained semi digested

food with fecle matter. The spleen was ruptured with

haematoma. In his opinion, the cause of death was

hemorrhagic shock due to multiple injuries.

18. During his cross-examination, it has come on

record that, he has not given any reason as to on what basis

the age of the injuries was ascertained and noted in the

certificate. He had not brought with him M.L.C. register and

case papers. According to him, if the injured person falls in a

well with water therein, he may die due to asphyxia due to

drowning. He, however, specifically denied that his findings in

regard to the cause of death mentioned in the p.m. notes

(Exh.96) were baseless.

Cri.Appeal No.775/2018 with Cri.Appeal No.496/2020 :: 16 ::

19. The appreciation of evidence of the aforesaid four

witnesses leads this Court to observe that there was a house

site belonging to Pravin and his family. Vinod Waghmare was

permitted to stay in a tin shed on the said site. Vinod wanted

to make some permanent structure thereon. Deceased Pravin

had, therefore, evicted him from the site. Appellant Kailas

and Devidas were the brothers-in-law of Vinod. They were,

therefore, annoyed over Vinod having been forced to vacate

the site. On close scrutiny of the evidence of the eye

witnesses, their presence at the site has not been dispute. It

is the case of the appellants that there was quarrel between

the deceased and his mother. This fact has also been

admitted by the witnesses in their examination-in-chief itself.

Deceased Pravin was annoyed with his mother since appellant

Devidas had assaulted P.W.5 on account of Vinod having been

forced to vacate the site. It was suggested to these

witnesses that, P.W.5 Raju had a shuffle with the deceased

and in that process, deceased accidentally fell into the well.

It was also submitted by the learned counsel or the appellants

that, the deceased might have died of the injuries suffered by

him due to fall into the well.

20. True, P.W.4 Rajendra, P.W.6 Ganesh and P.W.7

Cri.Appeal No.775/2018 with Cri.Appeal No.496/2020 :: 17 ::

Sumanbai were close relations of the deceased. It is also true

that no independent witness has been examined. It is

reiterated that the presence of these three eye witnesses at

the site is undisputed. It is also not in dispute that, Pravin

fell into the well. There is no evidence to suggest that he had

any reason to jump into a well. The well had a parapet wall.

The same rules out accidental fall into the well. True, there

may appear to be some inconsistency inter-se evidence of

these three eye witnesses. The same is bound to be there.

They were not expected to have a photographic memory to

reiterate the incident in their evidence before the Court. they

were not expected to know number of blows inflicted by the

appellants and parts of the body on which the blows fell. The

evidence of these three witnesses undoubtedly indicate that,

Pravin was mercilessly thrashed by the appellants herein.

While he tried to run away with a view to save his life, they

chased him near the parapet wall of the well. He was again

thrashed there. The evidence undoubtedly suggests that, due

to such beating, he fell into the well. Within minutes he was

taken out of the well to find to have been no more. The

learned counsel for the appellants would suggest that, the

deceased might have suffered fatal injuries due to his fall in

the well. They, however, forgot that his fall in the wall was as

Cri.Appeal No.775/2018 with Cri.Appeal No.496/2020 :: 18 ::

a result of the beating given by the appellants herein. The

trial Court has rightly observed that the deceased died as a

result of the injuries suffered at the hands of the appellants.

The appellants caused death of Pravin in the presence of his

(Pravin's) mother. Needless to mention that, the appellants

have also been in relationship with the deceased and the

witnesses examined in the case. They, therefore, cannot be

heard to say that the prosecution evidence is that of the

witnesses related to the deceased. The witnesses were not

confronted with their police statements or the F.I.R. to bring

on record omissions or contradictions in their evidence. Be

that as it may. The evidence undoubtedly makes out a

prosecution case that the appellants had mercilessly beaten

up deceased Pravin. While he (Pravin) started running away

to save himself, they followed him and again beat him up at

the parapet wall of the well. As a result of the beating, Pravin

fell into the well. The p.m. report indicates he died of

haemorrhagic shock due to multiple injuries. The injuries

suffered by deceased Pravin were as a result of the beating

given by the appellants. He fell in the well as a result of the

beating itself. The appellants have, therefore, to be

attributed with the knowledge that due to such beating the

deceased may die. The trial Court has rightly convicted the

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appellants for the offence punishable under Section 304 (Part-

II) of the Indian Penal Code.

21. This Courts finds no reason to interfere with the

findings recorded by the trial Court. This Court is also not

inclined to scale down the quantum of sentences imposed by

the trial Court. As such, the appeals fail. Both the appeals

are dismissed.

22. Consequently, Criminal Application No.2302/2020

stands disposed of.

( R. G. AVACHAT ) JUDGE

fmp/-