Bombay High Court
Dashrath @ Dk S/O Laxman Kasbe vs The State Of Maharashtra on 4 September, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:19031-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.47 OF 2017
. Dashrath @ DK s/o. Laxman Kasbe
Age: 23 years, Occu.: Education,
R/o. Dongre-Pimpla, Taluka Ambajogai,
Dist.Beed. ..Appellant
Versus
. The State of Maharashtra
Through Police Station Officer,
Ambajogai (Rural) Police Station,
Tq.Ambajogai, Dist.Beed. ..Respondent
...
Mr.Sudarshan J.Salunke, Advocate for Appellant
Mr.S.D.Ghayal, APP for Respondent
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 24 AUGUST, 2023
PRONOUNCED ON : 4 SEPTEMBER, 2023
JUDGMENT (PER ABHAY S. WAGHWASE, J.) :
1. Here is a appeal by convict for the offence punishable under Section 302
read with Section 34 of the Indian Penal Code (IPC) against judgment and
order passed by the learned Additional Sessions Judge, Ambajogai dated
16-12-2015.
FACTS IN BRIEF
2. Ambajogai Rural Police Station, District Beed chargesheeted accused
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Dashrath and accused Prakash on allegations that on 14-07-2014 at public
water tap, there was dispute between accused no.1 on one hand and PW5
Namdeo Kasbe on other hand on taking tap water. Deceased Nanabhau
intervened and merely questioned accused as to why they are abusing
Namdeo, a fatherly figure. Getting annoyed by the same, it is the case of
prosecution that, accused Dashrath ran to his house, returned with a dagger.
Accused Prakash caught-hold of Nanabhau and accused Dashrath stabbed
deceased Nanabhau in his stomach. Deceased was taken to the hospital.
While undergoing treatment, he succumbed to injury and hence, PW2 Vasant
Kasbe approached Police and set law into motion resulting into investigation at
the hands of PW9 Choudhari (PI).
On being challaned and tried, learned trial Judge held the case of
prosecution as proved and thereby convicted appellant. Hence, the appeal.
3. Before adverting to merits of the case, we wish to take note of the fact
that present appellant Dashrath and accused Prakash were both chargesheeted
by invoking Section 34 of the IPC. However, as accused Prakash was
absconding, trial came to be separated and present appellant alone came to be
tried.
SUBMISSIONS
On behalf of appellant :
4. According to learned Counsel for the appellant impugned judgment is
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patently illegal, perverse and not maintainable in the eyes of law for the
reason that there is total failure to appreciate available evidence in its correct
perspective. According to learned Counsel, at the outset, there was no motive
to commit the offence. No independent witnesses are examined. Except
interested witnesses like PW3 Pandurang and PW5 Namdeo, there is no other
reliable evidence. According to learned Counsel, whatever incident allegedly
took place was a result of sudden quarrel. There was no preparation, no
premeditation, but still learned trial Judge has recorded guilt under Section
302 of the IPC. That while undergoing treatment, injured had died and
therefore, injury was not fatal. However, still the learned trial Court has held
case of prosecution as proved and has recorded guilt of accused. It is his last
submission that even otherwise, taking into account the nature and manner of
occurrence and backdrop in which it took place, it is not at all an offence
which would attract charge under Section 302 of the IPC.
On behalf of State :
5. In answer to above and while supporting the judgment under challenge,
learned APP would submit that both accused were present at the spot and
their presence was marked by PW3 Pandurang and PW5 Namdeo. They both
had seen accused persons arriving at the spot of incident and insisting to fill
water to their satisfaction. They were seen accused persons raising quarrel
with PW5 Namdeo and abusing him and only for that reason, deceased
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Nanabhau merely questioned them why they were abusing PW5 Namdeo and
in that backdrop, deceased was taken away from the tap. This was watched
by PW3 Pandurang. That accused Dashrath was spotted running to the house
and returning with a deadly weapon like dagger and he has assaulted
deceased by the same. Thus, there is ocular account and medical evidence is
supporting the ocular account. Therefore, the learned trial Court has rightly
framed the charge under Section 302 of the IPC and has also rightly held
accused guilty for the same. According to learned APP, there is no merit in the
appeal and hence he prayed to dismiss the appeal.
6. This being appeal under Section 374 of the IPC, we are now called upon
to re-appreciate, re-analyze and re-evaluate entire evidence adduced by the
prosecution in the trial Court.
On doing so, we have noticed that in support of its case, prosecution has
examined in all nine witnesses and their brief introduction is as under:
EVIDENCE ON BEHALF OF PROSECUTION
PW1 Murlidhar s/o Sheshrao Pawar is Pancha to spot panchanama. His
evidence is at Exh.11. He identified spot panchanama Exh.12.
PW2 Vasant s/o Sambhaji Kasbe - informant is father of deceased who set law
into motion by approaching Ambajogai Rural Police Station on 15-07-2014
naming accused for committing murder of his son Namdeo. His evidence is at
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Exh.17.
PW3 Pandurang s/o Namdeo Kasbe is cousin of deceased. He claims to be
present at the spot when there was initial quarrel between his father Namdeo
and accused persons and in the same deceased Nanabhau had allegedly
intervened. He has narrated whatever he saw, in his testimony at Exh.21.
PW4 Yogiraj Dhondiram More is Pancha to memorandum of disclosure under
Section 27 of the Indian Evidence Act and recovery of clothes of accused.
PW5 Namdeo Sambhaji Kasbe is father of PW3 Pandurang with whom there
was initial quarrel by accused on 14-07-2014 at a public water tap. He also
narrated occurrence dated 14-07-2014 in his evidence at Exh.27.
PW6 Dr.Sachin Rajaram Potdar is the Doctor to whom his colleague Doctor,
after conducting surgery on deceased, handed over knife, which was extracted
during the treatment alongwith clothes of deceased and which were allegedly
seized by Police Officer by drawing panchanama Exh.31. His evidence is at
Exh.30.
PW7 Dr.Rupesh Gopalrao Thakare is treating Doctor, who has undertaken
surgery on deceased and has extracted the weapon i.e. dagger. His evidence is
at Exh.32.
PW8 Dr.Vishwajeet Govindrao Pawar is Autopsy Doctor, who conducted post
mortem and issued provisional death certificate Exh.36. His evidence is at
Exh.35. Post mortem report is at Exh.37.
PW9 Chandrashekhar Tukaram Choudhari is the Investigating Officer. His
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evidence is at Exh.43.
7. In the light of charge, it is to be first seen that death of Nanabhau is
homicidal or otherwise. To find answer, we need to visit testimony of PW8
Dr.Pawar, Autopsy Doctor. He in his evidence at Exh.35 claimed about
going through inquest and doing post mortem on dead body of Nanabhau on
15-07-2014. He narrated following internal and external injuries noticed by
him in paragraph nos.2 and 3 of his evidence.
External injuries :
1] Stitch wound present over the midline of abdomen 26cm in size
vertical in direction [for therapeutic purpose] 29 in number stitches
were present.
2] Stitch wound present over the left side of the abdomen 4cm in
size oblique towards left, 1 cm from mid-line on opening 4cm x 1.4cm
in size. Edges inverted margins clean cut, right angled at corners.
Both injuries were ante-mortem in nature.
Internal injuries :
4] Small intestine stitched with suture material.
5] Right kidney shows incised wound over the posterior aspect
1.5cm x 0.8cm in size oblique downward on right side in direction,
reddish in colour, weight 130 gms. of right kidney and weight of left
kidney 110 gms."
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In his opinion, cause of death is due to hemorrhagic shock due to stab
wound over left side of abdomen. He identified provisional cause of death
certificate Exh.36 and post mortem report Exh.37.
Above witness in cross-examination is asked whether he collected blood
of the victim for alcohol test. He assigned the reason for such testing by
stating that in many cases it is noticed that assault is caused under influence of
alcohol and therefore, such test was undertaken. He denied that there was
smell of alcohol from the mouth of victim. He is asked for how long smell of
alcohol could emanate from the mouth and he answered that it depends on
quality and quantity of alcohol consumed. He answered that symptoms of
alcohol remain present in the blood collected from the body of patient for 3-4
months on adding preservative therein.
8. Taking audit of medico legal expert's evidence, here there is absolutely
no cross-examination on the manner of death. Doctor has clearly noticed
external and internal injuries and has noted them in the post moretem report
as well as narrated the same in his testimony. Opinion about cause of death
has virtually remained unshaken. Resultantly in our opinion, prosecution has
successfully shown that death of Nanabhau is nothing but homicidal.
ANALYSIS
9. Now it is to be seen that, as claimed by prosecution, there is any direct
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eye witness out of nine witnesses. It is noticed that though PW2 Vasant, father
of deceased has set law into motion, he seems to have received information
from PW3 Pandurang. But this witness has seen his son lying in injured
condition shortly after occurrence of assault and therefore, he cannot be said
to be an eye witness.
According to prosecution, PW3 Pandurang and PW5 Namdeo are crucial
witnesses and star witnesses for prosecution.
PW3 Pandurang in his evidence at Exh.21 deposed that his parents used
to fetch water from public water tap located near Samaj Mandir. According to
him, incident took place at around 06:00 p.m. and he was present on the road.
He stated that accused Prakash and accused Dashrath prevented his father
from fetching water from the tap. At that time, deceased Nanabhau
questioned both Prakash and Dashrath as to why they are causing quarrel
with PW5 Namdeo, who is of the age of their father. According to this witness,
thereafter, both Prakash and Deashrath abused deceased Nanabhau and by
pushing him brought near Neem tree. According to this witness, accused
Dashrath asked deceased as to why he came in their way and saying so he
went to his house and returned back with a knife. This witness stated that
accused prakash caught hold of deceased Nanabhau from back side and
accused Dashrath stabbed with dagger in his stomach. Nanabhau cried loudly.
On hearing the same, his father came. Seeing father of Nanabhau coming,
both Prakash and Dashrath ran away from the spot. Thereafter, vehicle was
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called and Nanabhau was taken to the hospital. He identified both accused in
the Court.
In cross-examination, he has admitted that accused Dashrath is his
distant cousin. He gave location of his house from Samaj Mandir, which is
approximately 300 ft. from his house. He gave distance between house of
Vasant and Samaj Mandir. He admitted that deceased Nanabhau has his own
private tap. He answered that on that day, he did not go anywhere. He stated
that on that day, Nanabhau and his father went to Ambajogai for some work,
but they returned back to village at 05:00 p.m. In further cross-examination,
he has admitted that there is cement road. He answered that near about 10-
15 persons were gathered at the water tap and they are all his kinsman. He
admitted that when his father was abused, he himself was present at tar road.
He admitted that till quarrel lasted, he was present on the tar road. He stated
that quarreling party came towards Neem tree and thereafter, he started
proceeding towards Neem tree from tar road. He claims that he also enquired
with Prakash and Dashrath as to why they had raised quarrel with his father.
He claims that he and other persons tried to rescue Nanabhau from the
clutches of Prakash, but they could not succeed. He stated that house of
accused Dashrath is 10 feet away from the spot of incident.
10. Now let us visit evidence of father of this witness i.e. PW5 Namdeo, who
is also examined on point of occurrence. It is his evidence that, on 14-07-2014
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at around 06:00 p.m., as it was water time, he came to the public water tap.
That some people were fetching water. Subsequently, his turn came, at that
time, accused Prakash and Dashrath came there. According to him, they said
that unless they fill up water in their 12 water pots, they will not leave the
public water tap and they started abusing loudly. Witness added that he asked
accused not to abuse and water supply is for short span, however, accused
started to raise quarrel. PW3 Pandurang and Bhausaheb came there.
Nanabhau also came there. According to him, Nanabhau asked accused as to
why they are abusing to the person who is like their father. Witness stated
that he himself, accused Dashrath, accused Prakash and deceased Nanabhau
went towards Neem tree and there accused Dashrath asked Nanabhau as to
why he was intervening and they said that they would show him his way.
Later on, accused Dashrath rushed to his house and came with a dagger.
Prakash caught-hold of Nanabhau from backside and Dashrath stabbed dagger
into his stomach as a result of which, Nanabhau cried loudly and fell down on
the ground. On hearing cries, father of deceased came and seeing him
coming, both accused ray way. He claims that he had seen the dagger. Its one
edge is sharp and other edge is like saw. Subsequently, Nanabhau died in the
hospital.
Above witness is subjected to cross-examination, wherein he has
initially admitted that he and accussed persons are kinsman. There were
cordial relations prior to the incident. He gave distance between his house
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and house of Vasant. He denied that he has own water tap. He denied that
Pandurang went anywhere for any work. He denied all the suggestions except
admitting that PW3 Pandurang and deceased Nanabhau came to support him.
He stated that entire incident of abuse, bringing dagger and stabbing has
taken place within one and half minutes.
11. Therefore, analyzing above evidence of PW3 Pandurang, it is emerging
that alleged incident had taken place at public water tap at 06:00 p.m. PW5
Namdeo is the person with whom there seems to be initial quarrel by accused
persons. PW3 Pandurang is son of PW5 Namdeo and he claims to be in the
same vicinity but on the tar road. Their evidence shows that there was quarrel
between Namdeo and accused at the water tap itself as accused allegedly
declared that they will fill 10 to 12 water pots belonging to them. PW5
Namdeo seems to have asked them not to quarrel and to save time as water
source remains for a very short span. Hearing abuses at the hands of accused
persons, deceased Nanabhau, who was present there, seems to have came and
questioned them saying that they should not abuse Namdeo, who is a fatherly
figure. This seems to have further resulted into quarrel between accused and
deceased. PW3 Pandurang and PW5 Namdeo both are consistent about
deceased being pushed towards Neem tree and further questioned. Both these
witnesses are consistent about accused Dashrath questioning deceased and
rushing to his house and returning with a knife. Both are consistent about
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deceased being caught-hold by accused Prakash and accused Dashrath
stabbing him with dagger and on hearing cries, informant seems to have
rushed there.
Therefore, the sum total of evidence of these two witnesses i.e. PW3
Pandurang and PW5 Namdeo and from the evidence of PW2 Vasant informant,
it is clear that accused Dashrath and Prakash, after raising quarrel, abused
Namdeo. After accused Prakash facilitated Dashrath, he seems to have
stabbed deceased. Even when all these three witnesses are cross-examined,
their evidence has remained virtually unshaken on actual abuse, quarrel and
assault. Therefore, there is credible eye witness account in this case.
12. It is pertinent to note that prosecution has examined the PW7
Dr.Thakare, who had performed surgery and extracted dagger and handed
over it to PW6 Dr.Potdar, who is also examined by the prosecution and said
weapon and clothes of deceased are seized by drawing panchanama. Medico
legal experts are thus confirming about dagger being stabbed in the midline of
abdomen. PW8 Dr.Pawar, Autopsy Doctor confirms ocular account of PW3
Pandurang and PW5 Namdeo. Therefore, here ocular account finds support
from medical evidence. Death is attributed to stab injury. PW8 Dr.Pawar, in
post mortem report, has given the description of injuries. One side of the
weapon is having sharp edge whereas other side is having inverted edges.
Seized weapon is examined by us. It apparently matches to description of
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injury. Therefore, such evidence further lends credence to the case of
prosecution about accused Dashrath stabbing with dagger.
13. Learned Counsel for the appellant would at the end point out that there
was no intention or premeditation and that infact incident had taken place out
of sudden quarrel.
We disagree with such submission for the simple reason that here
though quarrel has taken place at water tap and it was on account of fetching
water, note of evidence of direct eye witnesses needs to be taken into
consideration. It is regarding accused Dashrath, after hurling abuses, had
rushed to his house and had returned with a deadly weapon like knife /
dagger. He has stabbed it with such a force that dagger got stuck and
embedded in the body and was required to be operated and extracted.
Therefore, knowledge about bodily injury, which is sufficient to cause death or
bodily injury likely to cause death, can definitely imputed to accused Dashrath.
His assault was facilitated by absconding accused Prakash. Therefore, above
submission about case to be falling in the category of 'culpable homicide not
amounting to murder' cannot be entertained.
In our opinion, clause 3rdly of Section 300 of the IPC is clearly
attracted for the reason that taking into account the sufficiency of the injury to
cause death and its probability to cause death in the ordinary course of nature
is high, as the weapon used is extremely deadly as is evident from its bare look
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and secondly, it was used with such force that it apparently got pierced to
such a extent that it did not come out after stabbing and as stated above was
required to be removed upon only a surgery. Therefore, here probability of
death is apparently on the higher side.
In the light of above material, inference can safely be drawn that
appellant intended to cause fatal injury. PW8 Dr.Pawar, Autopsy Doctor in his
examination-in-chief has confirmed that injury was caused in forceful manner
thereby damaging internal organs including right kidney and knife article "A"
before the Court is heavy one. Therefore, taking into account such material,
we reiterate that clause 3rdly of Section 300 of IPC is gravitated.
14. We have gone through the impugned judgment. It is apparent that the
learned trial Judge has appreciated available evidence in its correct
perspective and relevant law has been applied and taken recourse to. No
perversity or infirmity is brought to our notice so as to entertain the appeal.
Resultantly, following order is passed :
ORDER
Criminal Appeal stands dismissed.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
SPT
