Bombay High Court
Dnyaneshwar Pandit Khode vs The State Of Maharashtra on 11 November, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:26979-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 813 OF 2024
Dnyaneshwar Pandit Khode
Age: 41 years, Occu.: Convict No. 37001,
R/o Taroda Tq. Muktainagar, Dist. Jalgaon
At present in Chh. Sambhajinagar Central Prison ..APPELLANT
VERSUS
State of Maharashtra
Through Police Station Muktainagar,
Tq. Muktainagar, Dist. Jalgaon ..RESPONDENT
....
Mrs. B.B. Gunjal, Advocate for appellant (appointed through Legal Aid)
Mr. S.J. Salgare, A.P.P. for respondent - State
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
DATE : 11th NOVEMBER, 2024
ORAL JUDGMENT ( PER : R.G. AVACHAT, J. ) :
1. The challenge in this appeal is to a judgment and order of
conviction and consequential sentence passed by the Court of Additional
Sessions Judge, Bhusawal ('trial Court') in Sessions Case, No. 86 of 2015 on
15th May, 2019. Vide the impugned judgment and order, the appellant has
been convicted for committing murder of hie neighbour, and therefore,
sentenced to suffer imprisonment for life and to pay fine of Rs.2,000/- with
default stipulation.
2. The facts in brief, giving rise to the present appeal, are as
follows :-
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The appellant and Pramod (deceased) were the neighbours of
each other. Pramod had opened a pan stall just outside his house but
adjoining to the wall of the house of the appellant. Therefore, there used to
be quarrel between the two. Pramod (deceased) had filed a criminal case
against the appellant and his brother. The case was pending. The appellant
was insisting him to withdraw the case. Pramod refused. The refusal to
withdraw the case is said to be the motive for commission of murder.
It was 08:30 in the morning of 03rd September, 2015. Pramod had
been to the house of his friend, PW 1 - Mahadev, residing near to his house.
After a brief chat, Pramod left the house of Mahadev for the day. In a while,
Mahadev heard cries of Pramod, "okpok okpok". He, therefore, turned to see
the appellant assaulting Pramod with an axe. Pramod ran to save himself.
He slipped on a cow dunk. The appellant followed and rained further axe
blows on him. The incident was witnessed by PW 1 - Mahadev and PW 2 -
Sopan. Both of them went to the house of the deceased and informed his
wife, PW 3 - Savita, who in turn came out of the house to saw her husband
lying in a pool of blood. It appears that Pramod had died on the spot. He
was rushed to the hospital.
3. PW 3 - Savita lodged the F.I.R. (Exh.18) against the appellant.
Crime vide C.R. No. 132 of 2015 was registered for the offence punishable
under Section 302 of the Indian Penal Code. Crime scene panchanama
(Exh.28) was drawn. The house of the appellant was searched. An axe
came to be seized during the house search panchanama (Exh.29). The
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appellant was arrested. Clothes on the person of both, the appellant and the
deceased were seized. From the crime scene, blood spots were collected.
All the seized articles were sent to R.F.S.L., Nashik. Statements of the
persons acquainted with the facts and circumstances of the case were
recorded. On completion of investigation, a charge-sheet was filed against
the appellant.
4. The trial Court framed the charge (Exh.2). The appellant pleaded
not guilty. His defence was of false implication. To bring home the charge,
the prosecution has examined eight witnesses and produced in evidence
certain documents. The trial Court, on appreciation of the evidence in the
case, convicted and consequently sentenced the appellant as stated above.
5. Learned counsel for the appellant would submit that the informant
was not an eye witness to the incident. The so called eye witnesses did not
intervene to save the deceased. There is inconsistency between the
evidence of prosecution witnesses that goes to the root of the matter. As
such, presence of the so called eye witnesses nearby the crime scene was
doubtful. The axe was seized from the house and not from the possession of
the appellant. As such, the prosecution failed to bring home the charge
beyond reasonable doubt. She relied on the judgment of Apex Court in case
of State of Haryana Vs. Mohd. Yunus and Ors., AIR 2024 SC 597 to
ultimately urge for dismissal of the appeal.
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6. Learned A.P.P. would, on the other hand, submit that it is an open
and shut case. He took us through the evidence on record and urged for
dismissal of the appeal.
7. Considered the submissions advanced. Perused the evidence on
record and the judgment impugned here. Let us advert thereto and
appreciate the same.
8. Admittedly, the appellant and the deceased were neighbours of
each other. All was not well between the two families. A criminal case at the
instance of Pramod (deceased) was instituted against the appellant and his
brother. A certified copy of the charge-sheet of that case finds place at
Exhibit 56. The F.I.R. was lodged by the widow of deceased, Savita (PW 3).
She did not witness the incident. It was little past 08:30 a.m. of 03 rd
September, 2015. She was engaged in cooking. Her husband Pramod
(deceased) had been to the house of his friend, PW 1- Mahadev. He left the
house of Mahadev and in a while the appellant mounted attack on Pramod
with an axe. PW 1 - Mahadev testified on oath to have seen the incident. It
is in his evidence that Pramod tried to run away to save himself. He,
however slipped on a cow dunk. The appellant, therefore, followed him and
again rained axe blows. As he tried to intervene, the appellant threatened
him. He, therefore, ran away and hid himself behind the pan stall of PW 2 -
Sopan.
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9. PW 2 - Sopan testified that he would run a pan stall nearby the
house of the appellant. He was at his pan stall at the relevant time. The
house of the deceased was visible from his pan stall. By little past 08:30
a.m. on 03rd September, 2015 he heard cries, "okpok okpok". He, therefore,
looked towards the side the cries were emanating. He saw the appellant
assaulted Pramod with the axe blows. He got frightened and hid himself in
the pan stall. The appellant then left. It is further in his evidence that PW 1-
Mahadev had taken shelter behind his pan stall. Both of them went to the
house of the deceased and narrated the incident to PW 3 - Savita, wife of
Pramod.
10. PW 3 - Savita gave her evidence consistent with what was
reported to her by both, PW 1 and 2. True, she is not an eye witnesses to
the incident. But what has been reported to her by both, PW 1 and 2 would
be taken into consideration in evidence under Section 6 of the Evidence Act
as res gestae. It is in her evidence that other neighbours shifted her
husband to the hospital. She too went to the hospital. By little past 12:00
p.m. she lodged the F.I.R. (Exh.18).
11. Learned counsel for the appellant would contend that there is
inconsistency inter se the evidence of these witnesses. According to her,
both, PW 1 and 2 claimed to have been together while going to the house of
the deceased to inform PW 3 - Savita about the incident. While PW 2
admitted to have no interaction with PW 1 about the incident. Going together
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silently without any interaction is possible, and therefore, cannot be said to
be inconsistency going to the roots of the matter. It is not disputed that PW 1
- Mahadev resides in the neighbourhood of the deceased, while pan stall of
PW 2 - Sopan was just 50 feet away from the house of the deceased. The
incident took place in the front yard of the house of the deceased. Only a
suggestion was given to the witnesses that in the village there is dispute
between Koli and Maratha communities, and therefore, the witnesses
deposed against the appellant. We find such suggestion to be of little help
since no person would spare the real culprit and implicate an innocent
person. Nothing has been brought on record to indicate the eye witnesses to
have an axe to grind against the appellant.
12. PW 5 - Sopan is another eye witness to the incident. His
evidence indicates that he had visited the house of the deceased by 08:30
a.m. on the fateful day to ask for spray pump to spray the insecticides on the
crop. While he was leaving the court yard of the house of the deceased, he
heard the cries. He turned back to saw the appellant to have been
assaulting Pramod with an axe.
We have closely perused the cross-examination of this witness as
well to find nothing helpful to the prosecution.
13. PW 4 - Nitin is a witness to the crime scene panchanama
(Exh.28), panchanama to the seizure of axe (Exh.29) from the house of the
appellant and the panchanama relating to seizure of clothes of both, the
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appellant and the deceased (Exhs.31 and 32). We find his evidence does
not further the prosecution case, since the axe was recovered from the
house of the appellant and was not seized at the instance of the appellant.
True, all the seized articles were carried to R.F.S.L., Nashik by PW 5 -
Bharat, Head Constable. The C.A. reports are on record. Those, however
appear to have not been put to the appellant in his examination under
Section 313 of Code of Criminal Procedure. We, therefore, do not take them
into consideration.
14. PW 8 - Hemant did investigation of the crime. As such, from the
evidence of PW 1, 2 and 5 the fact that appellant killed Pramod by inflicting
number of axe blows gets proved. The reason therefor was that the
deceased had lodged a criminal case against the appellant and his brother.
The appellant was insisting the deceased to withdraw the same. Certified
copy of the charge-sheet of the said case is on record. The witnesses
deposed in that regard.
15. The mortal remains of Pramod was subjected to autopsy. It was
conducted by PW 6 - Dr. Pravin. He noticed following injuries on the person
of Pramod :-
(1) CLW (wedge shaped) behind left ear, of size 3 x 2 x 3 inch.
(2) CLW (wedge shaped) over left side of cheek, size was 2.25 x 1 x
1 inch.
(3) CLW (wedge shape) over left side of neck, just below mandible,
with left carotid and jugular vessel cut and crushed, of size 3 x 2
x 3 inch.
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(4) CLW (wedge shape) behind neck posteriorly, of size 3 x 2 x 1
inch.
(5) CLW over right forearm near elbow, of size 1.5 x 1 x 1 cm.
(6) CLW (wedge shape) over left forearm, on upper 1/3rd area of
size 3 x 2 x 3 inch.
(7) CLW (wedge shape) over back on right side near medial border
of scapula of size 2 x 1 x 1 inch.
(8) CLW over left hand palm of size 2 x 2 x 1 inch.
(9) CLW over left forearm of size 1 X 1 X 1 inch.
In hin opinion, all the injuries were ante-mortem. According to
him, Pramod died of hypovolumic (heamorrhagic shock) due to injury to left
carotid and jugular vessels and due to polytrauma. The postmortem report
finds place at Exhibit 39. He opined that the injuries were possible with the
axe blows. Close reading of the cross-examination of the medical officer
does not lead us to find anything in favour of the appellant.
16. As such, re-appreciation of the evidence in the case lead us to
infer the trial Court to have rightly convicted the appellant for the offence
punishable under Section 302 of the Indian Penal Code. We are at one with
the findings recorded by the trial Court.
17. As such, the appeal is sans merit. Same is, therefore, dismissed.
Fees of Mrs. B.B. Gunjal, learned counsel appointed to represent the
appellant is quantified to Rs.10,000/- (Rupees Ten Thousand) to be paid by
Legal Services Sub-Committee, High Court, Aurangabad.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
