Bombay High Court
Kisan Bhamtya Pawara vs The State Of Maharashtra on 27 July, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:15769-DB
Criminal Appeal 87-2016
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 87 OF 2016
Kisan Bhamtya Pawara
Age: 32 years, Occu: Agri,
R/o: Sabalapanicha Andharpada,
Tq. Shahada, Dist. Aurangabad. ... Appellant
Versus
The State of Maharashtra
Through Police Station Officer,
Police Station, Mhasawad, Tq. Shahada,
District Nandurbar. ... Respondent
.....
Mr. Krishna Pratap Rodge, Advocate for the Appellant (appointed)
Mr. A. M. Phule, APP for the Respondent-State.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 10 JULY 2023
PRONOUNCED ON : 27 JULY 2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. By way of instant appeal, by invoking Section 374 of the Code
of Criminal Procedure [Cr.P.C.], the appellant is taking exception to
the judgment and order of conviction passed by learned Additional
Sessions Judge, Shahada in Sessions Case No. 55 of 2014 which was
passed on 17.10.2015 thereby holding accused guilty for the offence
punishable under Sections 302, 324 and 323 of the Indian Penal Code
[IPC] and sentencing him to suffer rigorous imprisonment for life.
Criminal Appeal 87-2016
CASE OF PROSECUTION IN TRIAL
2. PW8 Rehama had an affair with Lakdya Ohlya Pawara, who is
nephew of accused. Because of said affair, Rehama married Lakdya as
per customs and rituals prevailing in their community. Husband and
father-in-law of informant Bonibai [PW2] i.e. mother of Rehama had
opposed said marriage. Resultantly, Rehama was not sent to cohabit
with Lakdya. Accused was insisting for sending Rehama back to
cohabit with his nephew Lakdya and according to prosecution, at
times he used to issue threats. On 07.06.2014, PW2 Bonibai was
present in the house along with her father-in-law Arshya. Accused
Kisan visited the house of informant. He was holding dengara
(wooden stick). Initially he started abusing and questioning Arshya as
to why Rehama was not sent to cohabit. Deceased Arshya allegedly
told him that said marriage between Rehama and Lakdya is not
acceptable. Getting annoyed by the same, appellant Kisan assaulted
Arshya on head with dengara, as a result of which, he collapsed. He
had sustained bleeding injury. He had died on the spot and therefore
occurrence was reported to Mhasawad Police Station, on the strength
of which crime no. 34 of 2014 was registered. After investigation,
police filed challan. On committal of case, learned Additional Sessions
Judge, Shahada conducted trial. After appreciating oral and
Criminal Appeal 87-2016
documentary evidence on behalf of prosecution, learned trial Judge
accepted the case of prosecution and held that charges are proved and
thereby convicted and sentenced appellant-accused for above
offences.
Precisely such judgment and order of conviction is now sought
to be assailed before this Court on various grounds mentioned in the
appeal memo.
SUBMISSIONS
On behalf of the appellant:
3. According to learned Advocate for the appellant, there is
apparently false implication. It is submitted that there is no direct eye
witness and evidence of PW2 Bonibai [informant] is full of
contradictions, omissions, material improvements. Learned Advocate
submitted that there are allegations of assault by means of weapon
stick [dengara] and therefore, by no means said article can be said to
be deadly weapon. He would submit that according to the informant,
deceased had taken meals at around 8.30 p.m., whereas, autopsy
doctor has found that there was semi digested food. Taking into
account alleged time of occurrence and above said evidence of
autopsy doctor, it is impossible to accept the version of PW2 Bonibai
Criminal Appeal 87-2016
about occurrence being taken place in the night of 07.06.2014 at 8.30
p.m. to 9.00 p.m. He invited our attention to para 3 of the
examination-in-chief of PW2 Bonibai wherein she has deposed about
seeing accused in the light of torch, and would submit that this fact
was not stated by her in the FIR. He also invited our attention to the
answer given by PW2 Bonibai in para 7 of her cross wherein she has
admitted that accused had no relations with Lakdya and Ohlya and
thus further submitted that there is no motive behind alleged
occurrence.
4. It is further pointed out that in the FIR, it is stated that brother-
in-law of informant Bonibai, namely Rustam, was out for labour
work, however, he is claimed to be a witness to the inquest
panchanama. Consequently, learned Advocate questions that when he
was out for labour work, how is he shown as witness to inquest
panchanama. Therefore, learned Advocate submitted that entire story
is fabricated.
5. Taking us through the evidence of PW3 Livka, it is submitted
that even his testimony is doubtful because according to him,
deceased was hit on forehead but there was no injury noticed by
autopsy doctor at such site. So, it is submitted that ocular account is
Criminal Appeal 87-2016
contrary to medical evidence. That, different witnesses are giving
different locations of site of assault. Learned Advocate pointed out
that if at all there was assault on head, then there ought to have been
blood stains on the shirt of deceased, but no blood has been detected
in spite of analysis. Resultantly, it is submitted that, evidence of
prosecution is not reliable and trustworthy and not inspiring
confidence. It is further pointed out that PW2 informant Bonibai has
deposed in her substantive evidence about presence of her children,
who were 10 to 15 years of age at the time of incident, however, none
of her children was examined by prosecution. While concluding, he
submitted that prosecution has only relied on interested witnesses
and no independent witnesses lending corroboration is examined by
prosecution. According to him, with such quality of evidence learned
trial Judge ought not to have recorded guilt and hence he prays for
allowing the appeal.
On behalf of State:
6. Canvassing in favour of the judgment under challenge, learned
APP would point out that there is direct eye witness account. Motive
is also established through informant. Appellant had been to the
house of deceased getting armed with heavy wooden log. After
abusing and quarreling, he had hit deceased on the vital part like
Criminal Appeal 87-2016
head. Death has taken place instantaneously. FIR is lodged promptly.
That, death is shown to be homicidal one. In view of reliable and
direct eye witness, prosecution has succeeded in establishing the
charges and learned trial Judge has committed no error whatsoever in
holding the case of prosecution as proved. Consequently, he prays for
dismissal of the appeal.
7. Being the first appellant court and the last fact finding court,
we have carefully re-appreciated, re-analyzed and re-examined the
entire evidence. It is emerging that in support of its case, prosecution
has examined as many as 15 witnesses who can be categorized as
under:
Translator :
PW1 Kirma Kalshya Valvi
who translated the version of witnesses from tribe language
to Marathi.
Eye Witnesses :
PW2 Bonibai Nanjya Pawara [informant],
daughter-in-law of deceased
PW3 Livka Arshya Pawara,
son of deceased
PW4 Gavlya Janglya Pawara
acquaintance of both, accused and deceased.
PW5 Saysing Narya Pawara,
nephew of deceased.
Criminal Appeal 87-2016
Pancha Witnesses :
PW6 Sardar Vaharya Chaudhary and
PW7 Birsing Virsing Pawar
Pancha to memorandum and recovery
PW9 Bhaidas Jahangir Pawara
Pancha to inquest panchanama
Medical Experts :
PW10 Dr. Suresh Palusing Thakare
Autopsy doctor
PW11 Dr. Vijay Badhu Patil
Medically examined and treated injured witness PW3 Livka
PW12 Dr. Govind Sajan Shelte
Certified about fitness of PW3 Livka to give statement
Police Officials :
PW13 Ganpat Sukram Bhil, Police Head Constable
Recorded report lodged by PW2 Bonibai.
PW14 Amrut Namdev Patil, P.S.I.
Second Investigating Officer
PW15 Hiralal Bhika Chaudhary, P.S.I.
First Investigating Officer
Other witness :
PW8 Rehama Nanjya Pawara
Grand-daughter of deceased and daughter of informant.
8. Before ascertaining whether case of prosecution has been
proved from the testimony of so called direct eye witnesses, in view of
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charge under Section 302, it is first to be seen whether death of
Arshya is homicidal or not. For finding answer to that extent, we need
to visit evidence of autopsy doctor PW10 Dr. Thakare.
9. At Exhibit 31 the medico legal expert PW10 Dr. Thakare stated
about receiving dead body of Arshya Tejala Pawara on 08.06.2014.
After going through the inquest, he claims to have undertaken
postmortem over the dead body of a 65 years old man. After narrating
the condition of the dead body, he stated that on external
examination he came across CLW over left parieto temporal region of
scalp with bleeding and gave its size as 3 X 1 X deep to over skull
with fracture on palpatory examination. He described the injury to be
grievous one and according to him, age of the injury was within 24
hours. He gave cause of injury by hard and blunt object. According to
him, the injury was ante mortem in nature. According to him, on
internal examination of head, he came across CLW over left parieto
temporal region of scalp with bleeding. In his opinion, probable cause
of death was due to fatal brain trauma. He identified the postmortem
report authored by him at Exhibit 32 and he further stated that
Article-B dengara (wooden stick) is capable of causing injury noticed
by him and it could result into death.
Criminal Appeal 87-2016
In cross, PW10 Dr. Thakare, autopsy doctor is questioned about
nature of clothes over deceased and about time taken for rigar mortis
to appear over dead body. He has admitted that after taking meals,
the same passes in the intestine after four hours and he has noticed
yellowish digested secretion present in stomach. He answered that
after 4 to 24 hours, death might have been caused. He also admitted
that injury noticed by him as mentioned in column no.17 is possible if
a person falls in a valley on a hard and blunt substance.
10. On carefully analyzing the above medico legal expert's
evidence, it is seen that doctor has noticed CLW with bleeding injury
ad-measuring 3 X 1 X deep over left parieto temoral region of scalp.
Doctor has also noticed fracture and according to him, said injury is
possible by Article dengara (wooden stick) which was confronted to
him in the witness box. The impact of the injury has been stated by
him i.e. on conducting internal examination. He has spoken about
brain haemorrhage with heamatoma over left cerebral hemisphere.
He is very categorical about death due to said injury. Though there is
cross, there is mere suggestion that said injury is possible on account
of fall in a valley. However, there is nothing on record nor there is
anything to show that deceased fell in a valley. Bleeding injury is
attributed by doctor to vital organ like head. Deceased was said to be
Criminal Appeal 87-2016
around 65 years of age. Therefore, there is no reason to doubt the
medico legal expert's evidence. We are convinced that here, death of
Arshya is only because of head injury as a result of assault with
dengara which is a heavy wooden log.
11. Now, having accepted that death of Aashra was homicidal one,
it is to be further seen whether, as alleged by prosecution, appellant
herein is the author of the said fatal head injury. As stated above,
prosecution has ascertained about availability of eye witness account.
12. PW2 Bonibai [informant] in her evidence at Exhibit 11, after
stating about annoyance of appellant, who is uncle of Lakdya, for not
sending PW8 Rehama to cohabit with Lakdya, stated that marriage
between Rehama and Lakdya was not acceptable and therefore
Rehama was not allowed to go to cohabit with Lakdya. According to
this witness, around 9.00 p.m. accused assaulted her father-in-law by
means of dengara (wooden stick) on head and he died on the spot. At
that time she herself and her deceased father-in-law and her children
were present. This witness stated that hearing her shouts, her brother-
in-law Livka [PW3] rushed to the spot and asked appellant why he
assaulted Arshya. At that time, appellant assaulted Livka with stick on
his chest and back saying that " tulahi pahije". Livka became
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unconscious. Appellant also chased this witness but she managed to
run away. This witness claims that houses in their locality are
situated at long distance and therefore, in spite of she raising shouts,
nobody came there and therefore, next day morning she lodged
report.
Para 4 of her cross is devoted to the location of spot and its
surroundings. In para 5, by giving suggestions, answers are brought to
the extent of nature of marriage ceremony in Adiwasi community.
Thereafter she is asked at what time the incident took place and at
what time they all took meals and slept and what were the ages of her
children. She has answered that on the next day morning, villagers
had gathered and there was discussion amongst them on the point of
lodging report. Then she is questioned about marriage between
Rehama and Lakdya. She is asked whether she had informed police
about assault on Livka and he becoming unconscious and at what site
she was assaulted. She admitted that she had informed police about
seeing the occurrence in the light of torch. The suggestion is put that
article stick i.e. dengara is readily available in the forest. Rest all
suggestions are denied.
Criminal Appeal 87-2016
13. PW3 Livka stated that his father Arshya was residing with his
younger brother Nanjya and he and his brother were residing
separately. He also stated that Rehama was married with Lakdya s/o
Ohlya and accused is cousin brother of Ohlya. That, after marriage,
Rehama did not go to the house of her husband for cohabitation as
according to her, her marriage was performed forcibly and that she
did not wish to go for cohabitation. Witness stated that only because
Rehama did not go for cohabitation, assault was made. According to
him, the incident took place on the Saturday night. At that time, he
was in his own house and he heard shouts " mariv mariv" which in
Marathi means "ekjys ekjys". Then he stated that, so he rushed to the
house of his father and he saw his father floundering on the ground
due to blow on his forehead. This witness stated that he questioned
accused for assaulting his father and so accused assaulted him also
with dengara (wooden stick) on stomach and back and so he fell
down and became unconscious. He stated that at the time of incident,
his father and Bonibai were present. He identified Atricle-B dengara
and the clothes of accused as well as deceased.
In cross, he is asked whether he is able to read, write, speak
and understand Marathi. He admitted that his father was suffering
Criminal Appeal 87-2016
from asthama and had walking problem. He denied that police had
not made inquiry with him about the incident. Omissions are brought
in para 4 of his cross about informing police about Rehama being
taken forcibly even when she was not desirous, about Rehama not
going for cohabitation and hence assault was made, about assault on
forehead of deceased, deceased floundering on ground and he
hearing shouts "mariv mariv" (ekjys ekjys). The rest is all denial.
14. PW4 Gavlya stated that he knew Rehama, who is daughter of
Bonibai and Rehama was married with Lakdya. That, after marriage,
Rehama was residing with her father. Regarding the incident, he
stated that on 07.06.2014 at about 8.30 p.m. while he was in his
house, he heard shouts of Bonibai and so he went there. According to
him, Bonibai informed about Kisan (appellant) assaulting. He saw
Arshya had sustained injury on his head. He saw that due to assault
by means of dengara, one piece of dengara was broken off and lying
on the ground. Accused had assaulted deceased by means of dengara
and thereafter accused assaulted Livka on chest and so Livka fell
down. He stated that Livka was facing in the opposite direction and
had not seen this witness. He stated that Arshya died on the spot due
to assault and thereafter, accused went away. This witness claims that
he took Livka to Government Hospital at Mhasawad. Then he again
Criminal Appeal 87-2016
stated that assault was made on Livka and Arshya for the reason of
Rehama. He also identified the dengara (wooden stick).
Material cross on the point of occurrence is in para 5 of the
cross and omissions are brought about informing police regarding
Bonibai raising shouts and therefore he going to the spot and about
Bonibai informing about assault by Kisan, about assault by use of
dengara and its one piece falling on the ground, about Livka facing
opposite direction and therefore this witness not visible to him, about
he taking Livka to Mhasawad hospital. In further cross, he has stated
that his house is situated at three hours walking distance from
Shahada-Toranmal road. He denied that house of informant is about
two to three kms. from his house. He denied he had accompanied
Livka on previous dates in the case. He admitted that there was
discussion with Livka about deposition and he is accordingly
deposing. He admitted that he saw the article dengara for the first
time and that such sticks [dengara] are lying in the forest. He flatly
denied that he never witnessed the incident and that he is falsely
deposing.
15. Another witness is PW5 Saysing. His evidence at Exhibit 18
shows that after marriage of Rehama, she was residing with her
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father and because Rehama was forcibly married, she was not ready
to go for cohabitation. He stated that accused and Ohlya were
threatening for not sending Rehama for cohabitation. Regarding
occurrence, he has stated that he was in the house and he heard
shouts of Bonibai and so he went to the spot along with Gavlya. He
also marked presence of appellant Kisan and according to him, Arshya
was lying there. They were standing behind Livka. Kisan was opposite
to them. This witness stated that Livka asked accused as to why
accused assaulted his father and at that time, according to this
witness, assault was made by means of dengara on the chest of Livka,
as a result of which he fell down and accused again gave blow of
dengara on his back. Thereafter, accused ran away from the spot. At
that time, Bonibai came from backside of the house. Arshya had
sustained injury on his forehead and he had died on the spot.
Therefore, this witness went to Karbhari and informed him about the
incident.
In cross, questions are put about relations, about Rehama
eloping with Lakdya, meeting of panchas being held and about
performance of marriage. This witness has answered and admitted
that after narrating the incident to Karbhari, he came to the house of
Bonibai and at that time villagers, who had received the message, had
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gathered there. He denied about Karbhari informing police. Omissions
are brought in para 5 about Rehama being taken away forcibly,
accused issuing threats, Nanjya taking money but not sending
Rehama for cohabitation, about Bonibai shouting " ekjys ekjys" and
about he to be at the back of Livka and accused to be opposite to him,
about Livka asking accused as to why his father was assaulted and
thereafter, accused assaulting Livka by dengara.
16. PW6 Sardar Choudhary and PW7 Birsing are the panchas to
memorandum and discovery under Section 27 of the Evidence Act.
They have not supported the prosecution.
17. PW8 Rehama, who is a minor, has stated that one and half
months prior to the incident, she was married with Lakdya and she
went to cohabit with him. According to her, the marriage was against
her wish and also against the wish of her family members. Lakdya had
taken her away forcibly. She had come back to her parents' house and
she was residing with them and she did not go for cohabitation as a
result of which, accused used to issue threats to kill for not going to
cohabit with Lakdya. According to her, she had been for labour work.
She learnt from her mother about accused giving threats and she
learnt about the incident from one Ramesh Hutarya.
Criminal Appeal 87-2016
Omissions are brought in para 4 of her cross about informing
police regarding marriage being performed against her wish, family
members of Lakdya abusing and that Lakdya, Pangibai, Pohalya,
Rikamibai and Bhamtya coming to take her.
Therefore, her testimony is hearsay evidence.
18. On carefully analyzing the above testimonies, it is emerging
that it has been brought consistently from above witnesses that
marriage of Lakdya with Rehama was against her wish and therefore,
she had left his company and had come to reside with her parents.
PW8 Rehama and her mother Bonibai are consistent about threats
being given by accused. Therefore, in our opinion, there is motive
behind the occurrence. Evidence of PW2 Bonibai, PW3 Livka, PW4
Gavlya and PW5 Saysing shows that Arshya had suffered head injury.
It is true that witnesses are stating about assault being made on
forehead, whereas autopsy doctor noticed injury on left parieto
temporal region of scalp. However, it is to be noted that the alleged
incident has taken place in the night. Taking into consideration such
minor contradictions about exact site of assault, entire story about
coming armed with dengara and hitting deceased Arshya on head
Criminal Appeal 87-2016
would not be rendered doubtful. PW2 Bonibai, PW3 Livka and PW4
Gavlya are marking presence of each other on the spot of assault.
PW3 Livka is an injured witness. He has questioned accused for
assaulting his father, upon which he was assaulted. Therefore,
evidence of these witnesses cannot be discarded. More particularly,
nothing damaging is brought in their cross-examination. In our
opinion, the manner of suggestions put clearly shows that there is no
serious dispute about accused going armed with dengara (wooden
stick), questioning, threatening and abusing Arshya and thereafter
mounting assault on the head. No doubt there are omissions, but they
are not material or on the point of actual occurrence and assault.
Therefore, in our considered opinion, the so called direct evidence of
prosecution inspires confidence. Evidence of PW2 informant Bonibai
and PW3 Livka is itself sufficient to accept the case of prosecution. We
have already held that prosecution had established death of Arshya to
be homicidal one.
19. We have gone through the judgment under challenge. In our
opinion, learned trial Judge has correctly appreciated the so called
ocular account of prosecution. So called omissions and contradictions
are rightly held to be insignificant and not material. Findings have
been supported by assigning sound reasons. No perversity is brought
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to our notice so as to cause interference. Hence, finding no merit in
the appeal, we proceed to pass the following order:
ORDER
I. The appeal is hereby rejected.
II. We quantify the fees of the appointed Advocate at Rs.10,000/-
to be paid by the High Court Legal Services Sub-Committee,
Aurangabad.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
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