Bombay High Court
Bharat Krushna Padvi vs The State Of Maharashtra on 8 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:25697-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.407 OF 2018
Bharat Krushna Padvi,
Age 21 yrs., Occ. Agri.,
R/o Thuvanicha Patilpada,
Tq. Dhadgaon, Dist. Nandurbar.
... Appellant
... Versus ...
The State of Maharashtra
... Respondent
...
Mr. Joydeep Chatterji, Advocate for appellant
Mr. S.D. Ghayal, APP for respondent
...
CORAM : SMT. VIBHA KANKANWADI &
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 30th NOVEMBER, 2023
PRONOUNCED ON : 08th DECEMBER, 2023
JUDGMENT :
( PER : SMT. VIBHA KANKANWADI, J.)
1 Present appeal has been filed by the original accused challenging
his conviction in Sessions Case No.18/2016 by learned Additional Sessions
Judge, Shahada, Dist. Nandurbar on 11.06.2018, whereby the appellant has
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been held guilty of committing offence punishable under Section 302 and
323 of the Indian Penal Code, 1860.
2 The prosecution has come with a case that deceased Sukalal
Shila Padvi, R/o Thuvani was the husband of informant PW 3 Vilabai. PW 3
Vilabai was working as Anganwadi Helper. Accused is son of one Rajubai
Krushna Padvi, who was also working as Anganwadi Sevika. Informant
Vilabai lodged report with Dhadgaon Police Station on 18.12.2015 stating
that Sukalal had gone to his cousin sister's house at village Keli around 9.30
a.m. on 17.12.2015. Name of his cousin sister is Chinkibai Lalsingh Padvi.
Around 4.00 p.m. Chinkibai came running to the house of Vilabai stating that
when Sukalal was sleeping in her house, Bharat Krushna Padvi i.e. appellant
has assaulted Sukalal with the help of one wooden dengara (a heavy
bottomed wooden article like plank). Sukalal has sustained bleeding injury.
Accused has also assaulted Sukalal's brother Rakesh with fists and Rakesh is
present at the house of Chinkibai. Thereafter, Vilabai along with her father-
in-law and others went to the house of Chinkibai. They all saw Sukalal lying
on the ground, blood was oozing out of his nose and ears. He was then taken
to Government Hospital, Dhadgaon, where he was declared dead. Thereafter
Vilabai went to Police Station and lodged the First Information Report.
3 On the basis of said First Information Report offence under
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Section 302 and 323 of the Indian Penal Code came to be registered on
18.12.2015 vide Crime No.75/2015 and investigation was undertaken. It is
to be noted that the inquest panchnama was got executed and the dead body
was sent for postmortem. After the postmortem was over, the panchnama of
the clothes on the person of the deceased was got executed. Panchnama of
the spot was also got executed. Accused came to be arrested. He was got
medically examined. Statements of the witnesses were recorded. During the
course of the investigation the accused gave memorandum and discovered
dengara, which came to be seized under panchnama. The Postmortem Notes
as well as Medico Legal Certificate of injured Rakesh was collected and after
the investigation was over charge sheet was filed.
4 After the committal of the case learned Additional Sessions
Judge, Shahada has framed charge at Exh.5. Prosecution has examined in all
10 witnesses to bring home the guilt of the accused, when accused had
pleaded not guilty. After considering the evidence on record and hearing
both sides, learned trial Judge convicted the appellant for the offence
punishable under Section 302 of the Indian Penal Code and sentenced him to
suffer imprisonment for life and to pay fine of Rs.1,000/- (Rupees One
Thousand only), in default to suffer rigorous imprisonment for one month.
The appellant was further held guilty of committing offence punishable under
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Section 323 of the Indian Penal Code and was sentenced to suffer simple
imprisonment for one month and to pay fine of Rs.500/- (Rupees Five
Hundred only), in default to suffer simple imprisonment for 15 days. Set off
has been granted under Section 428 of the Code of Criminal Procedure as the
appellant is in jail since 18.12.2015. The said conviction is challenged in this
appeal under Section 374 of the Code of Criminal Procedure.
5 Heard learned Advocate Mr. Joydeep Chatterji for the appellant
and learned APP Mr. S.D. Ghayal for the respondent.
6 The learned Advocate for the appellant has submitted that the
learned trial Judge has not appreciated the evidence properly. The major
contradictions and omissions have not been considered as well as the
situation of the spot and the distance between the house of Chinkibai and
Vilabai. The distance between the two houses is in fact, much in view of the
fact that those are situated on two different hills and there is a Nala in
between the two hills. It was impossible for PW 5 Chinkibai to go in such a
high speed to the house of Vilabai to explain anything. Further, if we
consider the testimony of PW 5 Chinkibai, she has not stated anything in
respect of presence of Rakesh and alleged sustaining of injuries by Rakesh.
PW 3 Vilabai - informant was admittedly not present and it is stated that she
relied on whatever was conveyed by Chinkibai to her. If Rakesh was not at
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all present at the spot, taking into consideration the examination-in-chief of
PW 5 Chinkibai, it could not have been reflected in First Information Report
Exh.28 and there could not have been even a charge for the offence under
Section 323 of the Indian Penal Code. Prosecution has examined PW 6
Rakesh, who says that he was in front of the house of Chinkibai when he was
allegedly assaulted by accused with fists and hand. Though he had stated
that he had sustained injury to his neck, he has improved his version in his
cross-examination by saying that the said injury was bleeding injury, but it
does not find any support in the testimony of PW 10 Dr. Satpute, who had
examined him. According to PW 6 Rakesh, after he was assaulted by
accused, accused went inside the house of Chinkibai and assaulted Sukalal,
who was sleeping there. PW 6 Rakesh does not say that in any way he had
tried to save his brother. PW 6 Rakesh rather says that accused has tried to
assault PW 5 Chinkibai and then Chinkibai had driven him out of her house.
However, PW 5 Chinkibai does not say so. She rather says that she had tried
to stop accused from assaulting Sukalal. Trying to stop a person from
assaulting another is different from the person assaulting such intervener.
Prosecution has examined PW 8 Molabai, who is the mother-in-law of PW 5
Chinkibai and paternal aunt of deceased. According to PW 8 Molabai, after
PW 6 Rakesh was assaulted by accused, he left the spot. If this is to be taken
as it is, then how PW 6 Rakesh can be taken as an eye witness to the incident
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of assault by accused to Sukalal. Therefore, the testimony of all these three
alleged eye witnesses does not stand corroborated to each other. Further, it
does not stand corroborated to the testimony of PW 7 Dr. Udesingh Pawara,
who has conducted the autopsy. In the cross-examination PW 7 Dr. Pawara
has admitted that the injuries noted by him on the person of Sukalal were
possible if a person falls in the valley, so also on rough surface. He has
admitted that there are no injuries on the occipital and temporal lobe of the
deceased. He has not mentioned the age and colour of injuries noted in the
column Nos.17 and 18 of the Postmortem Report. He has further stated that
the bleeding injury was fresh injury, which might have occurred 3-4 hours
prior to the death. In categorical terms he has admitted that death of Sukalal
might have been caused around 5.00 to 6.00 a.m. of 18.12.2015, which is not
the prosecution case. Therefore, the medical evidence is not supporting the
prosecution story. PW 1 Prashant is the spot panch as well as PW 4 Ganesh.
There are contradictions between their testimonies. Further, the situation of
the house of PW 5 Chinkibai has come on record through the spot
panchnama Exh.17, PW 1 Prashant, PW 4 Ganesh, PW 5 Chinkibai and PW 8
Molabai. Her house consists of two rooms; one is cattle shed and another is
kitchen. Deceased was sleeping in cattle shed, whereas PW 5 Chinkibai was
allegedly grinding on grinding stone. The said place is not visible from the
cattle shed and vice versa. Therefore, it is hard to believe that Chinkibai
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would have noticed that accused was assaulting Sukalal.
7 It has been further submitted on behalf of learned Advocate for
the appellant that the motive behind the alleged murder has not been proved
by the prosecution. According to PW 3 Vilabai, Rajubai - mother of present
appellant working as Anganwadi Sevika was not even getting salary since one
year prior to the First Information Report as she was not attending the
meetings. The accused and his brother had suspicion that Vilabai was behind
the stoppage of salary of their mother. Though PW 3 Vilabai had stated that
accused and his brother were abusing and threatening her as well as Sukalal,
they were not paying attention. However, to support her contention there is
absolutely no evidence collected by the Investigating Officer as well as
statements of the relevant persons were never recorded under Section 161 of
the Code of Criminal Procedure. The question, therefore, arises that whether
the accused could have been convicted in absence of proof of mens rea. The
learned trial Judge has failed to consider all these things and, therefore, the
conviction deserves to be set aside by allowing the appeal.
8 Per contra, the learned APP strongly supported the reasons given
by the learned trial Judge while convicting the appellant. He submitted that
all the panchnamas have been proved by examining the panch witnesses, PW
1 Prashant and PW 4 Ganesh are the panch to the spot panchnama Exh.17.
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The situation at the spot has been brought on record. The spot was in the
house of Lalsingh Padvi i.e. husband of PW 5 Chinkibai. PW 2 Sharad
Shyamrao Borse is the panch to the video shooting of First Information
Report and the seizure of pen drive, in which that video shooting was copied,
inquest panchnama Exh.23 and seizure of clothes of deceased Exh.54. PW 4
Ganesh is also the panch to the memorandum and discovery panchnama
Exhs.30 and 31, wherein the accused had discovered the murder weapon
dengara from the shrubs. There is nothing in the cross of all these panch
witnesses which could discard their testimony. Though PW 3 Vilabai is not an
eye witness; yet, she has been examined to prove that accused had grudge in
his mind as against deceased. It is not in dispute that mother of accused was
serving as Anganwadi Sevika. PW 3 Vilabai as well as PW 6 Rakesh both
have stated that the accused and his brother were annoyed with the fact that
Rajubai's salary has been stopped about a year prior to the First Information
Report. They were under impression that PW 3 Vilabai is behind the said act.
9 Learned APP further submitted that PW 5 Chinkibai, PW 6
Rakesh and PW 8 Molabai are the eye witnesses. PW 6 Rakesh is in fact
injured also. Though in the substantive evidence PW 5 Chinkibai has not
disclosed the injuries to PW 6 Rakesh, she was firm in saying the assault to
Sukalal by accused with dengara, when Sukalal was sleeping in her house.
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Further, Rakesh was assaulted outside her house and the said place may not
be visible from her where she was grinding. That does not mean that she
was not able to see what took place inside her house. The testimony of PW 6
Rakesh stood supported by PW 10 Dr. Kantrao Dhondiba Satpute, who had
examined Rakesh around 11.00 a.m. on 18.12.2015. It was the simple injury
which was sustained by Rakesh. Thus, the ingredients of Section 323 of the
Indian Penal Code were proved. PW 8 Molabai says that PW 6 Rakesh was
assaulted by accused, but then she says that he left the spot. Though it might
appear that there is no corroboration between PW 6 Rakesh and PW 8
Molabai in respect of the fact that Rakesh witnessed the assault by accused to
deceased; yet, they both stood corroborated to the fact that accused had
assaulted PW 6 Rakesh. Then PW 5 Chinkibai's testimony stood supported by
PW 8 Molabai in respect of assault by accused to Sukalal. Therefore, we
cannot discard the testimony of three witnesses. PW 7 Dr. Udesingh Pawara
has stated that injuries caused to Sukalal narrated in column No.17 resulted
in his death. Prosecution has proved that death of Sukalal was homicidal in
nature. PW 9 Ramkrushna Khairnar is the Investigating Officer. On the basis
of the evidence that was led by the prosecution; the learned trial Judge has
rightly convicted the appellant. There is no merit in the appeal, it deserves to
be dismissed.
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10 To begin with we would like to start the discussion with the
testimony of PW 3 Vilabai, the informant. She is admittedly not present
when the alleged incident took place in the house of PW 5 Chinkibai,
however, she was firm in saying that when Sukalal left her house around 9.30
a.m. on 17.12.2015 he had told that he was proceeding for the pooja of
Waghdev at Keli and he would go to the house of Chinkibai. In the cross of
PW 6 Rakesh it has come on record that the pooja of Waghdev was
performed in front of the house of Chinkibai. Chinkibai was the cousin sister
of deceased Sukalal and, therefore, it was obvious for Sukalal to go to the
house of Chinkibai. We would consider the point of motive at a later point of
time, but what could be gathered further from the testimony of PW 3 Vilabai
is that the temple of Waghdev is on one hill and the house of accused is on
the another hill. This situation may not help the accused when admittedly on
17.12.2015 there was admittedly the said pooja and it has come further on
record that villagers gathered for the said pooja, which starts with traditional
dance. In the cross, it has been rather extracted from PW 3 Vilabai that they
had reached Dhadgaon with Sukalal around 7.00 p.m. and thereafter around
7.30 p.m. she was at Police Station, Dhadgaon. It was then tried to be
brought on record that the First Information Report ought to have been on
17.12.2015, whereas it appears that it has been registered around 2.55 a.m.
on 18.12.2015. We do not find that there is any delay in lodging the report,
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taking into consideration the distances and the situation.
11 PW 5 Chinkibai is the main eye witness in whose house the
incident has taken place. She had stated that around 4.00 p.m. the incident
took place. She was grinding grains on the grinding stone and Sukalal had
slept in the house. Accused came in her house and assaulted Sukalal on his
head. She has identified the weapon before the Court. In the cross-
examination it has been brought on record that the Primary Health Centre is
at a distance of five minutes from her house, but it is not the case of these
witnesses nor it was suggested as to why Sukalal was not taken to Primary
Health Centre. It was tried to be brought on record that the place where
Sukalal had slept in the cattle shed was not visible from the kitchen where
the grinding stone has been installed. However, this witness has denied a
suggestion that after Sukalal shouted she went to the spot. It is rather
extracted in her cross-examination that accused had given first blow on the
left side of the head of Sukalal. This fact was rather not told by her in her
examination-in-chief. When it has been extracted in her cross, now, it does
not lie in the mouth of the accused that she is not an eye witness. We have
not found any such fact in the cross-examination of this witness to discard
her testimony. Rather the suggestions and extraction has confirmed that she
has witnessed the assault by the accused with dengara seized in the matter
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on the head of Sukalal.
12 PW 6 Rakesh is the injured eye witness and brother of deceased.
He has stated that he was in front of the house of Chinkibai, when accused
came and held his neck and then beaten him on his back by fist blows. The
only improvement he has made that he has pushed accused and rescued
himself. He then says that accused then entered the house of Chinkibai and
assaulted Sukalal, who was sleeping. At this stage itself we are taking note of
the examination-in-chief of PW 8 Molabai, wherein she has stated that after
accused has assaulted PW 6 Rakesh, Rakesh has left the spot. Conduct of PW
6 Rakesh after the alleged assault on him is rather not convincing. At the
most, it can be said that he would have been seen accused entering the house
of Chinkibai. PW 6 Rakesh does not say that he followed accused to see what
he is doing. It is rather impossible for a person to stand outside the house
and then see what is going on inside the house. To say about what was going
on inside the house, the position of that person outside the house should
have been clearly stated. Further, if he was witnessing that accused was
assaulting deceased, then why he has not raised hue and cry and tried to
rescue his brother. PW 6 Rakesh does not say that after he allegedly saw
accused beating Sukalal he had caught hold of the accused and raised his
voice, so that neighbouring persons can gather. Therefore, the testimony of
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PW 6 as eye witness to the assault on Sukalal is not believable. Most
probably as stated by PW 8 Molabai he left the spot after the accused
assaulted him. He has then been examined by PW 10 Dr. Satpute on the next
day. PW 3 Vilabai is also not saying that when she went to the spot PW 6
Rakesh was present and he also narrated to her what he had seen. In cross
PW 6 Rakesh had said that he was standing in front of the door of the house
of Chinkibai and then went on to exaggerate that he had sustained bleeding
injury to the neck and the collar of his shirt had stained with blood. There is
no support to the said statement. Therefore, his testimony is to be believed
only to the extent of simple injuries to him.
13 PW 8 Molabai has stated that she saw Rakesh beaten by accused,
who had come from back side of Rakesh and thereafter accused entering the
house of Chinkibai. She says that when Chinkibai made hue and cry, she
rushed in the house of Chinkibai. She also tried to say that as accused had
killed Sukalal, Chinkibai went to inform Sukalal's father. After she had
entered the house of Chinkibai, she had told to accused not to assault Sukalal
and had caught hold of the hand of accused and drove him out of the house.
It appears that her entry inside the house was after Chinkibai left the house,
but then by that time still the accused was inside the house of Chinkibai. PW
5 Chinkibai has not given the presence of PW 8 Molabai. But from the cross-
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examination of PW 8 Molabai we could not see any reason for disbelieving
her and when she had no reason to implicate, it can be certainly said that she
has witnessed part of the incident. We cannot discard the testimony of these
three eye witnesses only on the ground that they are the relatives of
deceased. The presence of these witnesses at the spot of incident or around
the spot of incident was but natural.
14 Now, turning towards the testimony of PW 7 Dr. Pawara, who
had conducted the autopsy, it is to be noted that the dead body was handed
over to him around 10.25 a.m. on 18.12.2015 for postmortem. The
postmortem has been conducted between 10.35 a.m. to 11.45 a.m. He has
found following external injuries and there were corresponding internal
injuries.
i) Contused Lacerated Wound over left side of parietal region of
head having size 3 x 2 x 1 c.ms. The bleeding was present.
ii) Linear fracture of left parietal bone.
iii) Brain was congested and hemorrhagic.
He has stated that the death was caused within 6-8 hours of
taking meal and the probable cause of death was head injury. Police Officer
had sent him the wooden dengara and after inspecting the same he has given
the opinion that injuries noted by him in column No.17 are possible by the
said weapon. Now, some confusion has been created by him in his cross-
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examination. The first suggestion which he has admitted is that the injuries
noted by him in the report are possible due to fall of a person in the valley, so
also on rough surface. Accused cannot make use of this admission, for the
simple reason that there was absolutely no suggestion to PW 3 Vilabai, PW 5
Chinkibai, PW 6 Rakesh and PW 8 Molabai. Furthermore, he has stated that
Sukalal's death might have been caused around 5.00 to 6.00 a.m. of
18.12.2015. It is to be noted again that no such suggestion has been given to
the above said witnesses in the cross. Rather suggestions given to PW 3
Vilabai in the cross which she has admitted also would show that when
Sukalal was taken to Dhadgaon hospital around 7.00 p.m., he was declared
dead. The purpose of cross-examination is to extract the truth and not to
extract admission by putting the witness in the confusion. The basic nature
of medical evidence is supportive/corroborative in nature. It is the well
settled position of law that when there is contradiction between the ocular
evidence and the medical evidence, then, the ocular evidence would prevail.
Of course, in such situation the medical evidence if strong, then the said
contradiction may give benefit to the accused. But, here, in this case, there is
no contradiction as regards the assault, the weapon used and the head injury
that has been caused. Therefore, the alleged admissions given by PW 7 Dr.
Pawara cannot be used to give benefit to the appellant.
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15 PW 4 Ganesh Koli has given the details as to what memorandum
was given by the accused and how he has led to the discovery of dengara. It
has been discovered from the shrubs and, therefore, he together with
testimony of PW 9 Ramkrushna Khairnar - Investigating Officer has proved
the discovery under Section 27 of the Indian Evidence Act. The other
panchanamas have also been duly proved. There is nothing in the cross-
examination of the panch witnesses which would discard their testimony.
16 Thus, from the re-appreciation and revisiting the evidence that
was adduced by the prosecution we hold that the prosecution proved that
death of Sukalal was homicidal in nature and accused is the author of the
crime. Now, turning towards the motive the perception of PW 3 Vilabai was
sufficient and further, when there is direct evidence in the nature of eye
witness, motive may not be of much importance. We, therefore, come to the
conclusion that prosecution has proved that the accused has committed
offence punishable under Section 302 and 323 of the Indian Penal Code. The
conviction of the appellant is perfectly, justifiable and legal. There is no merit
in the present appeal. It deserves to be dismissed. Accordingly, the Criminal
Appeal stands dismissed.
( ABHAY S. WAGHWASE, J. ) ( SMT. VIBHA KANKANWADI, J. )
agd
Signed by: Amol G. Donge
Designation: PA To Honourable Judge
Date: 08/12/2023 18:09:05
