Bombay High Court
Baliram S/O. Tukaram Bhosale vs The State Of Maharashtra on 5 January, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:983-DB
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.933 OF 2018
Baliram Tukaram Bhosale,
Age : 41 years, occu : Convict No. 9731,
Through Superintendent of Central Prison,
Nashik Road, Nashik .. Appellant
Versus
The State of Maharashtra .. Respondent
...
Advocate for the Appellant : Shri Mukul Kulkarni (Appointed)
APP for the Respondent/State : Mrs. U. S. Bhosle
...
CORAM : R. G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Dated : January 05, 2024
JUDGEMENT (Per Neeraj P. Dhote, J.) :
-
1. This is an Appeal under Section 374 (2) of the Code of
Criminal Procedure, 1973 (for short, 'Cr.P.C.') against the Judgment
and order dated 17.12.2013 passed by the learned Additional
Sessions Judge, Latur in Sessions Case No. 70 of 2012 convicting the
Appellant for the offences punishable under Sections 302 and 506 of
the Indian Penal Code (hereinafter, in short 'I.P.C.') and sentencing
him to undergo Imprisonment for Life and to pay fine of Rs.1,000/-,
in default to pay the fine to undergo further Rigorous Imprisonment
for six (6) months and to undergo Rigorous Imprisonment for two
(2) years, respectively, arising out of Crime No.32/2012 registered
with Bhada Police Station, Dist. Latur.
2. The prosecution's case as revealed from the Police Report
is as under :
2.1 The informant (PW No.1) Vitthal Tukaram Bhosale is the
resident of Gulkhedawadi, Tal. Ausa, Dist. Latur and resides with his
wife, two daughters and one son. His parents and two brothers
resides separately with their respective families near his house. The
Appellant is his younger brother. He is of quarrelsome nature and
used to threat them and their father (Tukaram) with dire
consequences. The Appellant used to carry Sickle, which is used to
cut the sugarcane.
2.2. In the morning of 18.04.2012 when the informant came
home from the agricultural field at around 07:00 a.m., his father was
removing warm water for bathing and his mother was standing near
his father. The Appellant came out of his house with the Sickle in his
hand and gave blow on the neck of his father, due to which his father
fell down facing towards the sky and again the Appellant gave blow
with the said weapon on his chest. After the assault, the Appellant
threatened them and went back to his house and closed the door
from inside. The informant and his brother went near to their father
and found him dead.
3. The incident was reported to the police and the Crime
came to be registered against the Appellant. During the investigation
the Investigating Officer conducted the Inquest, prepared the Spot
Panchanama, sent the body for Post-Mortem, recorded the statement
of witnesses, seized the Muddemal Articles and referred them for
chemical analysis, seized the weapon used in the crime at the
instance of the Appellant and after completion of Investigation
submitted the Charge-Sheet. The learned Trial Court framed the
Charge against the Appellant for the offences punishable under
Sections 302 and 506 of the I.P.C. at Exh.8, to which the Appellant
pleaded not guilty and claimed to be tried. In order to prove the
Charge, the prosecution examined in all Nine (09) witnesses and
brought on record certain documents. After the prosecution closed
it's evidence, the Statement of the Appellant came to be recorded by
the learned Trial Court under Section 313 (1)(b) of the Cr.P.C. The
Appellant denied the Prosecutions case. Thereafter, by the impugned
judgment and order, the Appellant came to be convicted, as referred
in the paragraph no.1 above.
4. Heard the learned advocate for the Appellant and the
learned APP for the State. Perused the evidence on record.
4A. It is submitted by the learned advocate for the Appellant
that the witnesses are the interested witnesses and no independent
witness is examined by the prosecution. He further submitted that
recovery of weapon is not satisfactorily proved by the prosecution.
He further submitted that the learned Trial Court has erred in
recording the conviction and sentence and the Appeal may be
allowed.
4B. Per contra, it is submitted by the learned APP that the
prosecution has proved the incident through the testimony of the eye
witnesses. He further submitted that considering the spot of incident
there can be no independent witness. He submitted that the learned
Trial Court has rightly appreciated the evidence available on record
and convicted the Appellant.
5. Following is the admitted position:-
(i) The Appellant is the son of deceased Tukaram
(ii) The Appellant, deceased and the Appellant's two
brothers i.e. Dhanraj and Vitthal (PW No.1) reside on
one and the same plot in different premises.
6. P.W. No.1 - Vitthal Tukaram Bhosle i.e informant, PW
No.5 - Draupadi Vithal Bhosale, PW No.6 - Shalubai Balasaheb Sirsale
and PW No.8 - Babruwan Dasa Yadav are examined as the eye
witnesses to the incident.
7. PW No.6 - Shalubai in her cross-examination deposed
that she went on the spot ten minutes after hearing the shouts and
she had only seen Tukaram lying dead. Thus, her testimony in
respect of witnessing the actual incident is required to be seen with
doubt.
8. The testimony of PW No.8 - Babruwan show that police
had not recorded his statement and only had taken his signature.
There is no cross-examination of the Investigating Officer to elicit the
reason for not recording the statement of PW No.8 - Babruwan. It is
true that merely on the basis that the statement of the witness was
not recorded by the police, his testimony cannot be thrown out on
that ground; however, such testimony is to be considered with great
caution.
9. The testimony of PW No.5 - Draupadi Vithal Bhosale
show that she was the granddaughter of deceased Tukaram. The
Appellant is her paternal uncle. At the time of the incident, her
family, family of the paternal uncle's and deceased Tukaram were
residing in separate houses on one plot. On 18.04.2012 at around
07:00 a.m. she was cleaning utensils in the courtyard of their house
and when deceased Tukaram was taking out hot water from the
Vessel which was near her and the wife of deceased Tukaram was
standing behind Tukaram, the Appellant came from his house and
gave a blow of Sickle on the neck of deceased Tukaram, due to which
Tukaram fell on the ground facing sky and thereafter the Appellant
gave blow of Sickle on the chest of Tukaram. She raised alarm and
thereafter her father - PW No.1 and her uncle Dhanraj came there.
The Appellant threatened them to kill when they came near him. The
neighbours also gathered. The Appellant along with his wife went
inside his house and closed the door from inside. Tukaram
succumbed to the injuries. Prior to the incident, the Appellant was
not talking much and used to roam with the Sickle.
10. PW No.5 - Draupadi though cross-examined, nothing has
come on record to disbelieve her. On the contrary, it is seen that she
was standing at the distance of 4-5 feets from the place, where the
incident took place. The spot of incident being the plot where she
was residing, her presence is natural. The incident occurred at
around 07:00 a.m. which goes to show that there was sufficient light
to clearly witness the incident. Nothing has come in her evidence to
show that she had any reason to depose falsely against the Appellant.
Her testimony inspires confidence and clearly establishes that the
Appellant gave blows on the person of Tukaram with the Sickle. Her
testimony is thus accepted.
11. PW No.1 - Vitthal Tukaram Bhosale is the son of
deceased and father of PW No.5 - Draupadi and brother of the
Appellant. In his evidence, he deposed of witnessing the whole
incident. However, his testimony show that at the time of the
incident i.e. at 07:00 a.m. he was in his house, his wife had gone to
take bath and his daughter - PW No.5 Draupadi was cleaning the
utensils and Draupadi shouted and they all rushed to the spot. It can
only be gathered from the testimony of PW No.1 - Vitthal that he
reached the spot due to alarm raised by PW No.5 - Draupadi and seen
his father lying in an injured condition and the Appellant was having
Sickle in his hand and by giving threat, the Appellant went inside his
room and closed the door from inside. This gets fortified from the
testimony of PW No.5 - Draupadi that after giving two blows i.e one
on the neck and another on the chest of deceased, she raised alarm
and thereafter PW No.1 - Vitthal and her uncle Dhanraj came there.
From the cross-examination of PW No.1 - Vitthal, it is seen that
immediately before the incident he had returned from the
agricultural field. The presence of PW No.1 - Vitthal on the spot
after hearing the alarm raised by PW No.5 - Draupadi is quite natural
as their residence was on the same plot where the incident had taken
place. He reported the incident to the police and the FIR at Exh.16
came to be recorded. Nothing has come in his cross-examination to
show that the FIR do not corroborate his testimony. The cross-
examination has not affected his testimony.
12. The evidence of PW No.8 - Babruwan, the one whose
Statement was not recorded by the police, show that he was the
neighbour of deceased Tukaram. He deposed that on the day of
incident at around 07:00 a.m. when he was in his house, he heard
the shouts of PW No.5 - Draupadi and he went to the house of the
deceased and saw PW No.1 - Vitthal and Dhanraj (brother of Vitthal)
standing in the courtyard of their house and saw the Appellant with
the Sickle. Though in his evidence this witness deposed that
Tukaram was lying in the courtyard facing upward and after he
reached the Appellant gave blow of Sickle on the chest of the
Tukaram, this part of his testimony is required to be seen with doubt
for the reason that PW No.1 - Vitthal and his brother reached the
spot only after hearing the alarm / shouts of PW No.5 - Draupadi by
which time the Appellant had given the blows on the neck and chest
of deceased. Thus, the testimony of PW No.8 - Babruwan is accepted
only to the extent that after hearing the shouts from PW No.5 -
Draupadi he reached on the spot and he found Tukaram lying dead
and the accused was present with the Sickle and he went inside his
house and locked the door from inside. Being the neighbour, his
presence is also natural.
13. From the above discussion, it is clear that the
prosecution proved through the evidence of PW No.5 - Draupadi that
the Appellant assaulted deceased Tukaram by use of Sickle and
PW No.1 - Vitthal and PW No.8 - Babruwan had seen the Appellant
with the Sickle and deceased Tukaram lying on the ground,
immediately after the assault. The presence of all these witnesses on
the spot of incident is natural. There is immediate reporting of the
incident to the police. There is nothing to show that they had any
intention or motive to depose falsely against the Appellant. The spot
of incident being the private plot where the witnesses, deceased and
the Appellant were residing, there is no possibility of the presence of
any outsider so as to be an independent witness for the actual
incident.
14. The testimony of PW No.4 - Bibhishan Tukaram Yadav
show that he was the panch for the Inquest and Spot Panchanama
which are at Exh.24 and 25, respectively. His testimony show that
deceased Tukaram was lying dead at the Spot and his neck was slit
and there was injury on his chest. The testimony of PW No.9 -
Shaikh Usman Chand, the Investigating Officer corroborate the
evidence of this panch witness in respect of preparing the inquest and
the spot panchanamas. Both the said documents corroborate the
testimony of this panch witness and the PW No.9 - Investigating
Officer.
15. There is medical evidence of PW No.7 - Dr. Satish
Shivajirao Bawane, which show that he was the Medical Officer at
the Primary Health Center and on 18.04.2012 he conducted the post-
mortem on deceased Tukaram and found the following injuries:
"1) Cut injury over chest just over sternum. It was lying
obliquely. It was caused due to sharp object. The size of
injury was 10 cm x 4 cm.
2) Cut injury over neck right side. It was extending below
chin up to base of neck. The size of injury was 13 cm
(length) x 6 cm (width) x 4 cm (deep). It was lacerated
injury. Half portion of the neck was cut by the injury."
Both the injuries were ante-mortem and the probable cause of death
was 'cardio respiratory arrest due to hemorrhage due to cut injury
over the neck and chest'. He deposed that both the injuries were
sufficient in the ordinary course of nature to cause death. In his
testimony, it has come that the injury no.2 was possible by sharp
object like Article - 'A' Sickle. The Post-mortem Report at Exh.32 is
brought on record and perusal of the same show that
it corroborates the testimony of this witness. His cross-examination
show that the injuries were caused within 24 hours of sending the
body to him. His evidence show that the post-mortem was conducted
on the same day when the incident had taken place. In his
cross-examination, it has come that the injury on the neck of the
deceased can be caused, if one fells on the tin sheet. This possibility
is completely ruled out by the trustworthy testimony of the actual eye
witness i.e. PW No.5 - Draupadi. Through the testimony of PW No.7
- Dr. Satish, it is established by the prosecution that deceased
Tukaram died due to the injuries on his neck and chest.
16. The testimony of PW No.4 - Bibhishan also show that
the police had seized blood stained clothes of the Appellant under the
panchanama at Exh.26. It finds corroboration from the evidence of
PW No.9 - Shaikh Chand, Investigating Officer. The panchanama at
Exh. 26 corroborate the testimony of these witnesses regarding
seizure of blood stained clothes of the Appellant. The evidence of
PW No.9 - Shaikh Chand, Investigating Officer show that he arrested
the Appellant.
17. Through the evidence of PW No.2 - Madhukar, the
prosecution had brought on record the seizure of Article 'A' Sickle at
the instance of Appellant under the Memorandum Panchanama under
Section 27 of the Indian Evidence Act. His testimony show that while
the Appellant was in the police station, he gave the statement to
show the place where the Sickle was hidden and memorandum at
Exh.18 came to be prepared and the Appellant led them to his house
and removed the said Article from beneath the water pot which was
seized under the Panchanama at Exh.19. The evidence of PW No.9 -
Shaikh Chand, Investigating Officer corroborate the evidence of this
panch witness.
18. The provisions of Section 27 of the Indian Evidence Act
are in respect of the discovery at the instance of person in custody.
From the evidence of PW No.5 - Draupadi (eye witness) and the
other witnesses who had reached the spot immediately after the
incident it is established that after the incident the Appellant went
inside his house and closed the door from inside. This show that the
said witnesses were aware that the Appellant had entered his own
house with the Sickle. Therefore, it is debatable whether the seizure
of the Article - 'A' Sickle would be the discovery as contemplated
under Section 27 of the Indian Evidence Act. However, from the
evidence of PW No.2 - Madhukar, Panch Witness and PW No.9 -
Shaikh Chand, Investigating Officer, it is established that the
Article - 'A' was seized during the course of investigation.
19. The evidence of PW No.3 - Nilkanth Vishnu Talekar
show that in his presence the police had seized Dhoti of deceased
Tukaram which was stained with blood under the Panchanama at
Exh.21. Nothing has come in his cross-examination to disbelieve
him. His evidence is corroborated by the evidence of PW No.9 -
Shaikh Chand, Investigating Officer. The Panchanama (Exh.21)
corroborates the testimony of this witness regarding seizure of the
blood stained clothes of deceased.
20. The testimony of PW No.9, Shaikh Chand, Investigating
Officer show that the muddemal was sent for examination to the
Chemical Analyzer on 03.06.2012. The report from the Chemical
Analyzer is brought on record at Exh.45. Perusal of the said report
show that the soil collected from the spot, clothes of deceased,
clothes of accused and blade of Article 'A' Sickle were stained with
blood. The report further show that the clothes of deceased and pant
of accused were having the same blood group i.e. 'B', though the
blood group on the soil, on the shirt of the Appellant and on the
Sickle were inconclusive. From this report it becomes clear that the
Articles of crime were stained with blood.
21. From the above discussion, we have no hesitation to hold
that the prosecution has established by credible evidence that, the
Appellant assaulted deceased Tukaram by using Sickle which resulted
into the death of Tukaram. The injuries caused by the Appellant
proved fatal. The Article 'A' - Sickle was used by the Appellant while
committing the offence. The prosecution has fully established that
the death of Tukaram was Homicidal and caused by the Appellant.
The essential ingredients for the offence of Murder punishable under
Section 302 of the I.P.C. are fully established against the Appellant.
Through the evidence of the witnesses, it is also established that the
Appellant had threatened the witnesses of dire consequences when
they gathered at the scene of offence after deceased Tukaram was
assaulted and therefore, the offence under Section 506 of the I.P.C. is
also established. As the evidence available on record has proved the
Charge against the Appellant, no interference is called for in the
impugned Judgement and Order by which the Appellant is convicted
and sentenced. Thus, the appeal is liable to be dismissed and hence
the following order:
ORDER
(i) The Appeal is dismissed.
(ii) The Record and Proceedings be sent back to the Trial
Court.
( NEERAJ P. DHOTE, J. ) ( R. G. AVACHAT, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 18/01/2024 11:26:14
