Bombay High Court
Guman Vajarya Pawara vs The State Of Maharashtra on 12 September, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:22666-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 243 OF 2023
WITH
CRIMINAL APPLICATION NO. 939 OF 2023
Guman Vajarya Pawara
Age: 45 years, Occu.: Convict,
R/o Hindali, Tq. Sendhva, Dist. Badwani,
Madhya Pradesh
At present R/o Saver Shivar, Tq. Shirur,
Dist. Dhule ..APPELLANT
VERSUS
State of Maharashtra
Through P.S.O. Thalner, Dhule ..RESPONDENT
....
Mr. R.A. Jaiswal, 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 : 12th SEPTEMBER, 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 against the appellant by the
Additional Sessions Judge, Dhule ('trial Court') in Sessions Case, No. 214 of
2013 dated 31st January, 2017. Vide the impugned judgment and order, the
appellant has been convicted for the offences punishable under Section 302
and 324 of the Indian Penal Code ('I.P.C.'), and therefore, sentenced to
suffer imprisonment for life and to pay fine of Rs.2,000/- and rigorous
imprisonment for three years and to pay fine of Rs.1,000/-, respectively. In
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default of payment of fine amount, he has been directed to undergo simple
imprisonment for four months and two months respectively.
2. The facts giving rise to the present appeal are as follows :-
The First Information Report ('F.I.R.') (Exh.17) was lodged by PW
1 - Akbar on 31st August, 2013. It is his case that he owns an agricultural
land at village Saver, Tq. Shirpur, Dist. Dhule. On the fateful day i.e. on 31 st
August, 2013 itself, the work of harvesting lady fingers was underway. His
son, Firoz was resting on the cot. The appellant all of a sudden came with
an axe and gave Firoz three blows therewith. When PW 3 - Suresh tried to
catch hold the appellant, he (Suresh) too was assaulted with the axe. The
appellant thereafter fled. The reason behind the assault was that Firoz had
slapped on the face of the appellant about six months before the incident.
The appellant was annoyed thereby, and therefore, done away with Firoz.
3. Based on the F.I.R. (Exh.17) lodged by Akbar, crime vide C.R.
No. 41 of 2013 was registered against the appellant. On completion of
investigation, charge-sheet was filed against him. The case was committed
to the Court of Session. It was assigned to the trial Court for trial in
accordance with law.
4. Charge (Exh.12) was framed against the appellant. He pleaded
not guilty. His defence was of false implication.
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5. To bring home the charge, the prosecution examined six
witnesses and produced in evidence certain documents. On appreciation of
the same, the trial Court convicted the appellant and consequently sentenced
as stated above.
6. Learned counsel for the appellant would submit that the appellant
was falsely implicated for no reason. The motive that the deceased slapped
the appellant six months before the incident is grossly inadequate to lead the
appellant to commit murder of Firoz. Learned counsel took us through the
evidence on record to ultimately urge for allowing the appeal.
7. Learned A.P.P. would, on the other hand, submit it to be an open
and shut case. He took us through the evidence on record. According to
him, the case is based on eye witness account. Such evidence carries
greater weight. The witnesses have no reason to falsely implicate the
appellant sparing the actual culprit. He, therefore, urged for dismissal of the
appeal.
8. Before the trial Court, the appellant admitted postmortem
examination report (Exh.19). The said report indicates Firoz died of shock
due to cardiorespiratory failure due to massive haemorrhage due to multiple
injuries with multiple fractures with vital organ injury with head injury.
9. Moreover, PW 4 - Dr. Kailashsing was the Medical Officer at
Shirpur Cottage Hospital on the given day. He examined PW 3 - Suresh to
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find following three injuries on his person :-
1) Incised wound on left thenar eminence of the palm 4 x 1 x
0.5 cm
2) Incised wound on the left palm 1 cm away from injury No.1,
5 x 0.3 x 0.3
3) Incised wound on right cubital fossa 5 x 1 x 1 cm.
The injury certificate of PW 3 - Suresh issued by him finds place
at Exhibit 24.
10. The F.I.R. (Exh.17) was lodged by PW 1 - Akbar within hours of
the incident. It is in his evidence that he owns an agricultural land, Gut No.
192 at Saver vicinity, Tq. Shirpur. He came to his field by little past 09:00 in
the morning. His son, Firoz (deceased) was lying on the cot. He saw the
appellant gave three blows with an axe to his son - Firoz. It is further in his
evidence that the appellant started running away. PW 3 - Suresh, therefore,
attempted to catch hold of him. The appellant, therefore, assaulted him with
the axe. The appellant then fled. He brought an Indica car and took his son
to Cottage Hospital, Shirpur. PW 3 - Suresh followed them to the very
hospital.
In the cross-examination it was suggested to him that he had
come to his field at 08:30 in the morning. It was also brought on record
through his cross-examination that PW 3 - Suresh was residing in the very
field. It was further brought on record that six months before the incident,
Firoz had given two slaps to the appellant on account of having problem of
the wife of Suresh. He was confronted with the F.I.R. to bring on record
omission that the appellant gave Firoz an axe blow on his neck. On perusal
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of the F.I.R. (Exh.17) it appears that omission pertains to portion of the body,
'neck' only. The same, therefore, is of little consequence. During cross-
examination of PW 1 - Akbar, nothing useful could be brought on record that
would help the appellant in his defence.
11. PW 2 - Dadamiyan was the uncle of deceased - Firoz. His
evidence is on the lines of the evidence of PW 1 - Akbar. His evidence
indicates that he was in the field by 09:00 in the morning on 31 st August,
2013. Labours were engaged in plucking lady fingers. He was collecting the
same. PW 3 - Suresh was engaged on yearly remuneration (lkkynkj). Firoz
was resting on the cot. It is further in his evidence that he heard sound of
beating. He saw the appellant gave Firoz second axe blow. He, therefore,
raised shouts. During that time the appellant gave third blow on the neck of
Firoz. PW 3 - Suresh tried to catch hold of him. The appellant assaulted
Suresh as well.
He was confronted with his statement to the police, to bring on
record the same to have been silent to state the appellant to have assaulted
on head, below the ear and on the neck of Firoz.
12. PW 3 - Suresh is another vital witness. His evidence is
consistent with the evidence of both, PW 1 and 2. It is in his evidence that
he was serving as 'Saldar' with PW 1 - Akbar. He would reside in a hut on
PW 1 - Akbar's land. His wife too would reside with him. His evidence
further indicates that his wife left him for no return six months before he gave
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evidence in the Court. His evidence further indicates that the incident took
place by 09:30 a.m. in the morning. He was working in the field. His wife
was engaged in plucking the lady fingers. PW 2 - Dadamiyan was also
there. It is further in his evidence that the appellant came with an axe. He
saw the appellant assaulted Firoz with the axe. He raised shouts. He
intervened to save Firoz. The appellant gave axe blows on his right hand
elbow and left hand palm. He thereby suffered injuries. PW 1 - Akbar was
coming to the field by that time. After having seen all of them, the appellant
fled away.
13. We have closely perused the cross-examination of PW 1 to 3 to
find nothing to disbelieve their evidence. PW 3 - Suresh's evidence carries
greater weight since he being an injured witness. PW 1 to 3 have no reason
to falsely implicate the appellant, sparing the real culprit. PW 5 - Dilip did
some of the investigation of the crime. He sent the seized muddemal to
R.F.S.L., Nashik. He also recorded statements of the persons acquainted
with the facts and circumstances of the case. PW 6 - Ramkrishna was a
witness to the crime scene panchanama (Exh.36) and the panchanama of
the seizure of clothes of the deceased (Exh.37). He was also a witness to
the disclosure statement made by the appellant pursuant to which an axe
came to be seized. Both the memorandum statements given by the
appellant and seizure panchanama of the axe finds place at Exhibit 38 and
39.
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14. Since the evidence of PW 1 to 3 was found to be reliable and
inspiring confidence, we do not propose to dwell at length as to the evidence
of other witnesses viz. Police officials, who did the investigation and the
panch witness referred to above. Suffice it to say that based on the evidence
of PW 1 to 3, the trial Court has rightly convicted the appellant and
consequently sentenced. We find no reason to interfere with the impugned
order of conviction and even quantum of sentence as regards offence
punishable under Section 324 of the I.P.C.
15. In the result, criminal appeal stands dismissed. In view of
dismissal of the criminal appeal, nothing survives in the criminal application.
Same, therefore, stands disposed of accordingly.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
