Bhimrao S/O Tatenath Shinde vs The State Of Maharashtra
2023 Latest Caselaw 8251 Bom

2023:BHC-AUG:17177-DB


                                                                              Apeal-569-2016



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                        CRIMINAL APPEAL NO.569 OF 2016

                 Bhimrao w/o Tatenath Shinde
                 Age: 32 years, Occu.: Alms,
                 Tq. Betmogra, Tq. Mukhed,
                 Dist. Nanded                                            .. Appellant

                          Versus

                 The State of Maharashtra,
                 Through Police Station Officer,
                 Police Station Mukhed,
                 Tq. Mukhed, Dist. Nanded                                .. Respondent

                                                   ...
                 Mr. Gajanan G. Kadam, Advocate for the appellant.
                 Mrs. V. S. Choudhari, APP for the respondent - State.
                                                   ...

                                               CORAM : SMT. VIBHA KANKANWADI AND
                                                       ABHAY S. WAGHWASE, JJ.

RESERVED ON : 10th July, 2023 PRONOUNCED ON : 11th August, 2023

JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :-

. Present appeal has been filed by the original accused

challenging his conviction by learned Additional Sessions Judge,

Kandhar, Link Court, Mukhed, Dist. Nanded in Sessions Case No.11 of

2014 on 04.08.2016 after holding him guilty of committing offence

punishable under Section 302 of Indian Penal Code. Deceased

Bhaurao Bapunath Shinde was aged around 25 years resident of

[1]

Apeal-569-2016

village Betmogra, Tq. Mukhed, Dist. Nanded. He belong to Gosavi

community, who depend on begging (Bhikshuki) for the livelihood.

He was residing with his parents. He has brother Uttam (P.W.1) and

brother Tukaram. Many persons from his community were residing in

Betmogra. Informant P.W.1 Uttam lodged FIR on 08.02.2014 to

Police Station Mukhed contending that he himself, Tukaram and

Bhaurao are residing separately in the same village. They have four

sisters, who are married. He himself, his brothers and father had

gone to Mukramabad on 07.02.2014 and returned around 4.00 p.m.,

after collecting Bhiksha. There was dispute between one Dharmanna

Laxman Chavan and Tanaji Taterao Shinde around 10.30 to 11.00

p.m. The said dispute was separated/settled by Uttam and Bhaurao.

On the next day i.e. 08.02.2014, in the morning, Bhaurao, his

brother-in-law Bapunath Siddhu Shegar and one Shivnath Khandu

Chavan had gone to take tea on the hotel of one Arun Patil. Uttam

had also gone behind them for taking tea. It was around 10.00 a.m.,

at that time, present appellant - Bhimrao Tatenath Shinde went to the

said hotel and started saying it to Bhaurao as to why he has taken the

side of Dharmanna in the earlier night, he would then be killed.

Accused took out one wooden log meant as firewood and gave blow

of the same on the head of Bhaurao. As a result of said blow, Bhaurao

[2]

Apeal-569-2016

sustained severe injury to his head and he became unconscious. After

seeing him getting unconscious, accused fled away from the spot.

The persons who were present at the hotel had seen the incident.

Blood was oozing out of the injury of Bhaurao and he was not talking

anything. Informant, Bhaurao's wife and other persons took him to

Government Hospital, Mukhed, but since he was serious he was

referred to Government Hospital, Nanded after giving preliminary

treatment. When Bhaurao was still undergoing treatment, P.W.1

Uttam lodged report with the police station. On the basis of it, offence

vide Crime No.14 of 2014 came to be registered under Section 307 of

Indian Penal Code and investigation was undertaken.

2. Panchanama of the spot was got executed and statements of the

witnesses were also recorded. Later on while undergoing treatment,

Bhaurao expired on 11.02.2014 at about 21.50 hours. Thereafter,

Section 302 of Indian Penal Code came to be added. The fact was

informed to Vazirabad Police Station, Nanded. Thereafter, the inquest

panchanama was carried out and the dead body was sent for

postmortem. After the postmortem was executed, the dead body was

handed over to the relatives. Supplementary statements as well as

statements of witnesses under Section 161 of the Code of Criminal

[3]

Apeal-569-2016

Procedure as well as under Section 164 of the Code of Criminal

Procedure by learned Special Judicial Magistrate came to be recorded.

While in custody, the clothes of the accused came to be seized by

executing seizure panchanama on 11.02.2014 and also the wooden

log which was allegedly used as a weapon of murder, under

memorandum panchanama, under Section 27 of the Indian Evidence

Act. The seized Articles were sent for chemical analysis and after the

completion of investigation, charge-sheet came to be filed.

3. After the committal of the case, trial was conducted.

Prosecution has examined in all eleven witnesses to bring home the

guilt of the accused. After considering the evidence on record and

hearing both sides, the learned Trial Judge has held that the

prosecution has proved the offence beyond reasonable doubt. The

appellant has been sentenced to suffer imprisonment for life and to

pay fine of Rs.1000/-, in default to suffer rigorous imprisonment for

one month for the offence punishable under Section 302 of Indian

Penal Code. Set off has been granted under Section 428 of the Code

of Criminal Procedure. Hence, this appeal.

4. Heard learned Advocate Mr. Gajanan G. Kadam for the

appellant and learned APP Mrs. V. S. Choudhari for the respondent -

[4]

Apeal-569-2016

State and perused the record and proceedings.

5. It has been vehemently submitted on behalf of the appellant

that the learned Trial Judge has not appreciated the evidence

properly. The learned Advocate for the appellant has taken us through

entire record and submitted that P.W.1 Uttam is the brother of

deceased and P.W.2 Bapunath is the brother-in-law of the deceased.

They have been posed as eye witnesses, however, it is to be noted that

P.W.2 Bapunath is also the panch to the inquest panchanama. His

name was already reflected as eye witness in the FIR, still the

investigating officer has taken him as panch to the inquest

panchanama. This shows that the investigation was one sided. Same

is the case with P.W.4 Masnaji Barhale. He is stated to be the eye

witness, yet he has been taken as panch to the memorandum

panchanama under Section 27 of the Indian Evidence Act. The cross-

examination of these witnesses would show that they are inter se

related and, therefore, they being the interested witnesses, the

prosecution ought to have examined independent witnesses, who

were allegedly present in the hotel at the relevant time. Further, the

alleged incident of quarrel, that had taken place on 07.02.2014, was

not against the accused. He was not involved in that incident in any

[5]

Apeal-569-2016

manner. Then why he would go on the next day merely to say that as

to why Bhaurao had taken the side of Dharmanna. Even as per P.W.1

Uttam, he had taken part in settlement on the earlier day, but then he

does not say that though he was also present in the hotel, the accused

had tried to do anything against him. P.W.1 Uttam, P.W.2 Bapunath

have not stated that they had not tried to intervene. The contradiction

in their statement as alleged eye witness from the fact that as per

P.W.1 Uttam in examination-in-chief as well as in the FIR only one

blow was given by the accused, but P.W.2 Bapunath says that the

accused had given the blow of stick on the head of deceased and then

deceased fell down and accused gave second stroke on his head by

which deceased suffered bleeding injury. P.W.2 has used the word

stick, whereas P.W.1 has used the word burning wood. P.W.4 Masnaji

states about the single blow. If we consider the testimony of P.W.9

Dr. Maroti Dake, the autopsy doctor, then he had noted in all four

external injuries on the dead body. Therefore, the ocular evidence

and the medical evidence, as regards the blows were given, are not

matching. When there was presence of independent witnesses, they

ought to have been examined.

6. Learned Advocate for the appellant has further submitted that

[6]

Apeal-569-2016

even if we take the evidence that has been led by the prosecution as it

is, then the alternative submission would be that accused had not

come armed/prepared. He has taken the wood from the firewood

kept for the purpose of hotel and gave blow. It was only one blow

and, therefore, it cannot be said that he had intention to kill. The

blow should be sufficient to cause death. Therefore, the case in hand

would adversely fall under Section 304 (II) of Indian Penal Code and

not under Section 302 of Indian Penal Code. The incident has taken

place all of a sudden. He, therefore, alternatively prayed for showing

leniency and reducing the sentence to already undergone by holding

that offence under Section 304 (II) of Indian Penal Code is proved.

7. Per contra, the learned APP strongly opposed the appeal. She

has supported the reasons given by the trial Court. She submitted

that there was no enmity between the deceased and the accused.

Therefore, there was no question of falsely implicating the accused,

but on account of the incident on the earlier day, accused came to the

said hotel and it appears that he was angry because immediately after

coming to hotel, he directly started questioning the deceased as to

why he was taking side of Dharmanna earlier night. Though he had

not come armed, yet he was conscious enough to the surrounding.

[7]

Apeal-569-2016

He took the wooden log from the firewood and gave blow on the

head of deceased. The intention lies in the heart of the accused. It

has to be gathered from the actions. The said one blow even if we

consider the case as one blow case, as per the experts opinion, that

one blow was sufficient to cause death of Bhaurao. P.W.1 Uttam,

P.W.2 Bapunath and P.W.4 Masnaji cannot be said to be interested

witnesses. They were present at the said spot and the presence of

general public cannot be said to be unnatural. P.W.2 Bapunath

himself is the person, who accompanied the deceased. P.W.1 Uttam

says that he went to the said hotel behind deceased, Bapunath and

Sakharam. P.W.4 Masnaji had come to the hotel on his own. Hotel

being the public place, their presence cannot be doubted. The weapon

has been discovered by the accused from his house. P.W.4 Masnaji

was not related to deceased and informant. There was no wrong in

taking him as panch witness to the discovery panchanama. The

testimony of P.W.9 Dr. Dake would show that it was homicidal death.

Accused had uttered the word that he would kill the deceased and it

can be seen from the description of injury No.1 i.e. lacerated injury

which was then opened as it was then sutured, it was found that the

underlying bone had fracture. This shows the force with which the

wooden log was hit. Therefore, those circumstances are sufficient to

[8]

Apeal-569-2016

infer that deceased had intention to kill. There is no merit in the

present appeal. It deserves to be dismissed. Accordingly, it be

dismissed.

8. Here, in this case the prosecution case is depending on the

testimony of three eye witnesses and it is thereafter supported by the

medical evidence and the discovery of the murder weapon. Therefore,

it is necessary to see whether the testimony of the eye witnesses is

supporting to each other. P.W.1 Uttam has stated about the earlier

incident. In his examination-in-chief, he has not given the date of the

earlier incident. The learned APP, who was conducting the case

before the learned Trial Judge, has not taken pains to bring the said

date on record. But in his FIR, he has stated that the said incident

had taken place around 10.30 to 11.00 p.m. on 07.02.2014 i.e. the

earlier day of the incident. Except denial in the cross, there is nothing

in respect of the said incident. Rather when he had not given the date

of the earlier incident in his examination-in-chief, yet in his cross-

examination, the question was asked as to whether he had told to

police at the time of FIR that the dispute occurred between

Dharmanna and Tanaji on 07.02.2014 and then he has answered that

he had made statement about the same. It appears that word dispute

[9]

Apeal-569-2016

was used and, therefore, he has explained that in fact he had stated

the word quarrel in the FIR. Whether it was dispute or quarrel, it has

rather been brought on record through his cross that some incident

had taken place on 07.02.2014 and in the said incident, P.W.1 Uttam

and deceased Bhaurao had intervened and settled that dispute.

9. The testimony of P.W.1 Uttam as regards the incident dated

08.02.2014 in the Hotel of Arun Patil around 10.00 a.m. stands

corroborated by the testimony of P.W.2 Bapunath and P.W.4 Masnaji.

P.W.1 Uttam and P.W.2 Bapunath were specific on the fact that while

assaulting Bhaurao, accused asked him as to why he was taking the

side of Dharmanna and he would kill him. It appears that while

recording testimony of P.W.1 Uttam, the learned Judge has taken the

word "burning wood" wrongly in English deposition and, therefore,

we have considered the Marathi deposition of P.W.1 Uttam which is

the deposition recorded in the language of the Court and in which he

has deposed, it uses the word " tGrkups ykdqM", meaning thereby

it is the firewood and not the burning wood. If we consider the spot

panchanama Exhibit-27, which is the hotel, then it can be seen that

there is an open space in front of the hotel. There were table and

chairs on the cement concrete Ota. Therefore, it appears that the said

[10]

Apeal-569-2016

wooden log and sometimes it is referred as stick / Dhepli / Danduka

was brought from the outside. According to these witnesses, some

other persons were also present at the spot. Now, the ground has

been raised that independent witnesses have not been examined. In

fact, P.W.4 Masnaji appears to be not related to deceased Bhaurao,

P.W.1 Uttam and P.W.2 Bapunath. No such suggestion was given to

him in the cross-examination. At that time, he was the President of

Tanta Mukti of the village. He has also stated that there was a quarrel

between accused and deceased in the evening on the previous day of

the incident. In his cross-examination, he has admitted that there are

two groups in Gosavi community in his village. Dharmanna Laxman

Chavan, P.W.1 Uttam and other persons are from one group, whereas

Dharmanna Babar and Bhaurao Jagannath Babar and others are from

the different group. He denied the suggestion that there used to be

quarrel between the two groups often, but then he admits that in his

statement under Section 164 of the Code of Criminal Procedure

before the learned Magistrate he had stated that there used to be

quarrels between the two groups. It appears that his statement in

examination-in-chief that earlier day there was dispute/quarrel

between deceased and accused is an improvement and he was unable

to assign any reasons for the omission. The contradiction further as

[11]

Apeal-569-2016

regards the day of incident is concerned is in respect of description of

the weapon. In his examination-in-chief, he has stated that the

firewood was used for the assault, whereas in his statement under

Section 161 of the Code of Criminal Procedure, he has used the word

stick. According to us though the firewood would be different from

the wooden stick, yet it would depend upon the size of the stick as to

what should be called to the said weapon. Even a stick can be used as

a firewood and there may be certain specially cut wood, firewood, to

be put in hearth. What has been recovered under Section 27 of the

Indian Evidence Act is the firewood and one end of the same was

partially burnt. Therefore, by examining P.W.4 Masnaji, we can say

that independent witness has also been examined, who has supported

the testimony of P.W.1 Uttam and P.W.2 Bapunath. No doubt, they

have not stated as to for what purpose they wanted to take tea in the

hotel at that time when they have their own houses in the village. A

different version about it is given in the statement under Section 164

of the Code of Criminal Procedure by P.W.4 Masnaji and it appears

that he and some other persons had gone to hotel and they had called

both the groups from the village for the settlement, but in his

substantial evidence, P.W.4 Masnaji has not stated about the same,

nor it has been extracted from him in the cross-examination on behalf

[12]

Apeal-569-2016

of the accused as to for what purpose he had gone to the said hotel.

Since the said hotel is a public place, those persons might have gone

there for taking tea, which has been stated by P.W.1 Uttam and P.W.2

Bapunath also. Therefore, their presence in the said hotel at the

relevant time cannot be doubted. P.W.2 Bapunath has specifically

stated that he had gone along with deceased and Sakharam, whereas

P.W.1 Uttam followed them by fraction of seconds. Though P.W.1

Uttam and P.W.2 Bapunath are related to the deceased, under these

circumstance, it cannot be said that they are interested witnesses,

especially P.W.2 Bapunath, who is the brother-in-law of the deceased.

We would like to rely on the observations of the Hon'ble Supreme

Court in Raju Alias Balchandran and others Vs. State of Tamil Nadu

[(2012) 12 SCC 701), wherein taking into consideration the facts of

the said case the Hon'ble Supreme Court envisaged four category of

witnesses, "(i) a third-party disinterested and unrelated witness (such

as a bystander or passersby); (ii) a third party interested witness

(such as a trap witness); (iii) a related and therefore an interested

witness (such as the wife of the victim) having an interest in seeing

that the accused is punished; (iv) a related and therefore an

interested witness (such as the wife or brother of the victim) having

an interest in seeing the accused punished and also having some

[13]

Apeal-569-2016

enmity with the accused." Under the said circumstance, the Hon'ble

Supreme Court further observed that "a Court should examine the

evidence of a related interested witness having an interest in seeing

the accused punished and also having some enmity with the accused

with greater care and caution than the evidence of a third-party

disinterested and unrelated witness. Therefore, the evidence of a

related or interested witness should be meticulously and carefully

examined. In a case where the related and interested witness may

have some enmity with the assailant, the bar would need to be raised

and the evidence of the witness would have to be examined by

applying a standard of discerning scrutiny. However, this is only a

rule of prudence and not one of law".

10. Further, reliance can be placed on the decision in Shahbuddin

and another Vs. State of Assam, [(2012) 13 SCC 213], it has been

observed that :-

"17. An interested witness is the one who is desirous of falsely implicating the accused with an intention of ensuring their conviction. Merely being a relative would not make the statement of such witness equivalent to that of an interested witness. The statement of a related witness can safely be relied upon by the Court, as long as it is trustworthy, truthful and

[14]

Apeal-569-2016

duly corroborated by other prosecution evidence.

18. At this stage, we may refer to the judgment of this Court in the case of Gajoo v. State of Uttarakhand [(2012) 9 SCC 532 : (2012) 3 SCC (Cri.) 1200], where the Court while referring to various previous judgments of this Court, held as under :-

"12. We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In Dalip Singh v. State of Punjab [AIR 1953 SC 364], while rejecting the argument that witnesses who are close relatives of the victim should not be relied upon, the Court held as under:-

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close [relative] would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far

[15]

Apeal-569-2016

from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.'

13. Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that :

'6. ... By now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being

[16]

Apeal-569-2016

convicted somehow or the other either because of animosity or some other reasons.'

14. This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called 'interested' only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. (Ref. State of U. P. v. Kishanpal and Others [(2008) 16 SCC 73]). In Darya Singh & Ors. v. State of Punjab [AIR 1965 SC 328] , the Court held as under:-

'6. ... On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.'

15. Once, the presence of PW2 and PW3 is shown to be natural, then to doubt their statement would not be a correct approach in law. It has unequivocally come on record through various witnesses including PW4 that there was a 'Satyanarayan Katha' at the house of Chetu Ram which was attended by various villagers. It was on their way back at midnight when PW2 and PW3 had seen the occurrence in dark with the help of the torches

[17]

Apeal-569-2016

that they were carrying. The mere fact that PW2 happens to be related to PW1 and to the deceased, would not result in doubting the statement of these witnesses which otherwise have credence, are reliable and are duly corroborated by other evidence. In such cases, it is only the members of the family who come forward to depose. Once it is established that their depositions do not suffer from material contradictions, are trustworthy and in consonance with the above-stated principles, the Court would not be justified in overlooking such valuable piece of evidence."

11. Further, reliance can be placed on the decision in Shio Shankar

Dubey and others Vs. State of Bihar, [AIR 2019 SC 2275], it has been

observed that when similar type of submissions were made, i.e. the

witness, who is the brother of the deceased, is an interested witness,

after taking into consideration the law on the same point from the

various decisions in past it has been observed that the submission of

the appellant, that witnesses P.W.11 and P.W.13 (in that case) being

related to the deceased their evidence cannot be relied, was rejected.

Reliance was placed on the decisions in Kartik Malhar Vs. State of

Bihar, [(1996) 1 SCC 614], Dalip Singh Vs. State of Punjab, [AIR

1953 SC 364], Namdeo Vs. State of Maharashtra, [(2007) 14 SCC

150]. Out of these, we would like to refer to Dalip Singh (Supra),

[18]

Apeal-569-2016

wherein referring to earlier decision in Rameshvar Kalyan Singh Vs.

State of Rajasthan, [AIR 1952 SC 54], it was observed that "it was a

fallacy common to many criminal cases and in spite of endeavours to

dispel, it unfortunately still persists, if not in the judgments of the

Courts, at any rate in the arguments of counsel." It was further

observed that "close relationship of witness with the deceased or

victim is no ground to reject his evidence."

12. Definitely, it has come on record through the cross-examination

of P.W.1 Uttam and P.W.2 Bapunath that there are two groups of

their community in the village. It has also come on record that some

persons from their community having similar surnames have come

from different places and now they have settled in Betmogra since last

about more than 25 years (prior to the deposition). The marriages

inter se takes place and thereby the community is growing. Even if we

consider that there is groupism, yet we want to differentiate between

groupism and enmity. Groupism need not always would take inimical

terms and vice versa. Enmity raises bitter feelings and would require

some extreme acts. Therefore, unless the reason for the groupism

turning into enmity would have been suggested, there is no point in

considering that these two witnesses are from the category of

[19]

Apeal-569-2016

witnesses, who were interested in punishing the accused having

element of enmity. These two witnesses were present at the said spot

and their presence is acknowledged by the third independent

unrelated and disinterested witness P.W.4 Masnaji. Though other

witnesses were also present, yet prosecution is not supposed to

unnecessarily multiply those witnesses and examine each and every

witness, who was present at the said spot.

13. The testimony of these two witnesses were supported by P.W.9

Dr. Dake, who is the medical officer, who has conducted the autopsy.

It is also to be noted that incident took place on 08.02.2014. Bhaurao

was given treatment at two places one was preliminary treatment

and, thereafter he was shifted to Civil Hospital, Nanded. He expired

on 11.02.2014. There were four external injuries and four internal

injuries. There was fracture to the skull. It has been stated that base

of the cranium was fractured horizontally at mid cranial fossa,

meninges cut corresponding to craniotomy. Extra durel hematoma of

100 gram, dark red colour was present on both frontal, temporal and

left parietal area. Sub arachnoid hemorrhage were present all over

brain, red in color, brain was markedly edematous, congested,

contusion necrosis of brain was present at right parietal and temporal

[20]

Apeal-569-2016

lobes laterally, superior and lateral part of left frontal lobe and basal

part of right temporal lobe.

14. He further says that injury No.1 in column No.17 along with its

corresponding internal injuries in Column No.19 were sufficient in

ordinary course of nature to cause death. In his cross-examination, he

has specifically stated that according to him injury Nos.1 to 3 at

column No.17 had occurred first and afterwards injury No.4 has

occurred. Age of injury Nos.1 to 3 is 3-5 days before the death and

age of injury No.4 is 2-4 days before death. He has categorically

stated that injury Nos.1 to 3 are not possible if a branch of tree falls

on the head of a person who is sitting below the tree. Those injuries

will not occur even when the branch is having width of 3-4 inches,

but then he admitted that injury Nos.1 to 3 are possible by hard and

blunt object. Branch of a tree is hard and blunt object. It was not

asked as to from which height if the branch fells on the head of a

person sitting under tree, then such injuries are possible. There was

no corresponding suggestion to P.W.1 Uttam, P.W.2 Bapunath and

P.W.4 Masnaji that Bhaurao was sitting below a tree when a branch

of that tree fell on his head. Therefore, taking into consideration the

ocular evidence with the medical evidence, we hold that the

[21]

Apeal-569-2016

prosecution has proved that the death of Bhaurao was homicidal in

nature.

15. In the normal course, an eye witness should not have been

taken as panch witness, but the law does not prohibit it in specific

words. It is a rule of caution that when a person is an eye witness to

the incident, then the panchanama should be by a third person, but

here in this case P.W.4 Masnaji, who is the eye witness, was also the

panch to the memorandum panchanama. He has specifically stated

that after the incident, 4-5 days thereafter, he was called by police in

the police station. He was along with one Hanmant Mudhale.

Accused, who was present in the police station, told them that he

would produce firewood stick. Accordingly, all of them went to the

house of accused as directed by him. He has stated that accused had

produced the firewood stick and clothes from his house in their

presence. In the cross-examination he has stated on how many

panchanams he had put his signatures and whether he had signed on

the panchanama in respect of case which was filed by Tanaji i.e. the

earlier days complaint. He admitted that the wall from which

firewood stick was seized was having Tarpaulin. He has admitted

that anyone can go inside the house by removing tagged rope for the

[22]

Apeal-569-2016

Tarpaulin. Here, it is to be noted that as regards the way and the

place which was shown by the accused is concerned, except denial

there is nothing. If anyone else had kept the said firewood at that

place, then how the accused would have come to know about the said

place, is a question. In fact, it can be safely inferred that as the

accused had kept the wooden stick at the said place, he had the

knowledge about the same. No question has been put to this witness

as to why he has not refused to act as panch to the said panchanama

and as to whether prior to the said discovery, his statement under

Section 161 of the Code of Criminal Procedure was recorded or not.

Therefore, when the witness was available and no questions have

been put, now accused cannot raise the objection for his role as the

panch to the memorandum panchanama. The said memorandum

panchanama has also been proved by the prosecution beyond

reasonable doubt. The said article i.e. firewood which was marked as

article No.1 was shown to P.W.9 Dr. Dake and he has opined that the

injuries mentioned in column No.17 i.e. injury Nos.1 to 3 are possible

by article No.1. As regards the discovery is concerned, it is also

proved through the testimony of P.W.11 API Chavan the investigating

officer. Therefore, the connection has been established and the said

weapon has also been identified by P.W.1 Uttam, P.W.2 Bapunath

[23]

Apeal-569-2016

and P.W.4 Masnaji. The said wooden log had blood stains. It appears

that the CA reports have been produced at Exhibit-59. The

investigating officer appears to have sent the shirt of the deceased,

Uparna being handkerchief, full pant of deceased, Baniyan of the

accused and the wooden log i.e. firewood. Human blood was detected

on full shirt, Uparna and full pant as well as the Baniyan. The blood

group on the Baniyan and the wooden log could not be identified or

the test was inconclusive, but it was human blood. How the human

blood was found on the baniyan of the accused has not been

explained by him. The said Baniyan has been discovered by him as

per the memorandum panchanama proved through P.W.4 Masnaji.

16. Here, in this case, the suggestion was given that as regards the

earlier incident is concerned i.e. 07.02.2014, at that time, mother,

son, brother Tanaji and wife of Tanaji, who had quarreled with

Dharmanna had sustained injuries and they were in hospital till

afternoon of 08.02.2014. It is then stated that offence vide Crime

No.12 of 2014 for the offence punishable under Sections 326, 323,

504, 506, 143, 147, 148, 149 of Indian Penal Code was registered

against Dharmanna Laxman Chavan, Bapunath Shinde, Khandu

Shinde, Sakharam Chavan, Dnyaneshwar Chavan and Tukaram

[24]

Apeal-569-2016

Chavan in respect of that incident dated 07.02.2014 and the charge-

sheet vide RCC No.78 of 2014 is pending with Judicial Magistrate

First Class, Mukhed. Important point to be noted is that it is not

suggested to the witness that the said offence was against P.W.1

Uttam as well as deceased. Thereafter there is suggestion in respect of

another offence i.e. Crime No.111 of 2013 against the informant, his

father and brother, but then it appears that it is in respect of earlier

incident that had allegedly taken place on 25.08.2013, however, that

cannot be the ground to discard the testimony of P.W.1 Uttam,

because that offence came to be registered on the basis of FIR lodged

by one Dharmanna Babar, who has no connection with the present

incident. It does not show any kind of enmity between the accused

and the deceased or the witnesses.

17. At Exhibit-21 a private complaint lodged by P.W.1 Uttam has

been produced, which is in respect of the incident in question and it

appears that two more accused persons were made in that case. One

is Subhash Dadarao Shegar and Digambar Bapunath Shegar,

however, the said private complaint came to be disposed of by order

dated 15.04.2014 passed by learned Judicial Magistrate First Class,

Mukhed by giving a direction to the investigating officer, as already

[25]

Apeal-569-2016

the FIR vide Crime No.14 of 2014 was pending for investigation.

Investigating Officer was directed to investigate the roles of the

persons named in the complaint. Now, the appellant cannot say that

as the other two accused persons have not been arrayed as accused in

this case, he should be acquitted. It can be certainly said that the

accused has not made use of the said private complaint Exhibit-21

and it has not been pointed out that some different picture was

painted in the said direct complaint. After the investigation, the

Investigating Officer might have come to the conclusion that these

other two persons have no role to play. Question was asked to the

investigating officer as to whether he has followed the order passed

by the learned Magistrate or not and after going through the case

diary, he has stated that he was unable to told whether he had carried

out the investigation in view of the said directions. There was no

direct question to the investigating officer as to whether he had found

any role by the other two persons in the crime or not. As regards the

present accused is concerned, the case is consistent and the

investigation shows that there are eye witnesses to the incident. There

is medical evidence as well as the evidence in the form of discovery of

murder weapon. The testimony of other witnesses in this case is in

the nature of supporting the prosecution story.

[26]

Apeal-569-2016

18. Taking into consideration these aspects, the prosecution has

proved that the accused had given blow of the firewood on the head

of deceased Bhaurao around 10.00 a.m. on 08.02.2014 in the hotel.

The motive was the earlier dispute/quarrel, wherein deceased had

taken side of one Dharmanna. Now, it is the submission on behalf of

the appellant that the case would fall under Section 304 (II) of Indian

Penal Code and not under Section 302 of Indian Penal Code. The

learned Trial Court has dealt with this point. Here, certain factors

will have to be considered (i) the earlier incident; (ii) accused coming

armed with weapon; (iii) by uttering that he would kill Bhaurao the

blow was given; (iv) the blow was on the head and (v) the force of

the blow was such that it had caused fracture. Therefore, taking into

consideration these five factors, it cannot be said that the incident

took place at the spur of the moment. It is rather a premeditated act/

attack, therefore, the case would definitely fall under the category of

homicidal death amounting to murder punishable under Section 302

of Indian Penal Code.

19. From the re-appreciation and re-assessment of evidence, we

conclude that there is no illegality or error committed by the learned

Trial Judge while convicting the appellant. There is no question of

[27]

Apeal-569-2016

showing any leniency, as the minimum sentence has been imposed.

The appeal therefore stands dismissed.

[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]

scm

[28]