Bombay High Court
Bhagwat Dhynoba More vs The State Of Mah And Anr on 21 January, 2025
2025:BHC-AUG:1719
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.825 OF 2005
Bhagwat S/o. Dnyanoba More
Age: 21 years, Occu.: Labour
R/o. Narayanwadi, Tq. Shirur (Kasar),
District Beed. ... Appellant
(Orig. Accused No.1)
Versus
1. The State of Maharashtra
Through Police Station at Chakalamba,
Tq. Shirur (Kasar), District Beed.
2. Mithu S/o Tukaram More,
Age: 32 years, Occu.: Agri.,
R/o. Narayanwadi, Tq. Shirur (Kasar),
District Beed. ... Respondents
(No.2 Orig. Complainant)
......
Ms. Sharda P. Chate, Advocate for Appellant
Mr. S.B. Narwade, APP for Respondent No.1 - State
Mr. B.V. Thombre, Advocate for Respondent No.2
......
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 07 JANUARY, 2025
PRONOUNCED ON : 21 JANUARY, 2025
JUDGMENT :
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1. In this appeal, appellant/convict takes exception to judgment
and order dated 24.10.2005 passed by learned 3 rd Ad-hoc Additional
Sessions Judge, Beed in Sessions Case No.67 of 2005 recording guilt
of present appellant for offences punishable under Sections 452 and
325 of the Penal Code (IPC) and Section 25(1) of Arms Act.
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PROSECUTION CASE IN BRIEF
2. Present appellant and other three accused were charge-sheeted
by Chaklamba Police Station on the premise that, on 23.02.2005,
informant Mithu was sleeping in the house with his family members.
In the backdrop of previous episode of murder of the father of
accused/appellant, all four accused charge-sheeted in the present
case, went armed with articles like sword, iron rod and stick.
Accused/appellant assaulted informant Mithu as well as his both
minor children, causing them grievous injuries. On report of
informant Mithu PW-11, crime was registered for offences punishable
under Sections 143, 147, 148, 452 read with Sections 149, 307 read
with Section 149 of the IPC and under Section 25(1) Arms Act, and
after investigation, they were chargeseeted and finally tried by
learned 3rd Adhoc Additional Sessions Judge Beed in Sessions Case
No.67 of 2005.
During the trial, prosecution adduced oral and documentary
evidence. Present appellant did not adduce any evidence and pleaded
innocence and false implication. On appreciation of available
evidence, learned Trial Court accepted the prosecution case as proved
and after recording guilt of appellant/accused No.1 alone and rest of
the accused were acquitted.
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Instant appeal is filed in consequence of impugned judgment
and order of conviction of appellant/accused no.1.
SUBMISSIONS
On behalf of appellant :
3. Learned counsel for the appellant took this Court through the
FIR as well as testimonies of prosecution witnesses and submitted
that, there is no independent witness. That, all witnesses are family
members. That, there is previous enmity. That, testimonies of
prosecution witnesses are full of material omissions, contradictions
and variances. Learned counsel submitted that with such quality of
evidence, learned Trial Court ought not to have accepted the
prosecution case as proved. She emphasizes that on the same
evidence, accused nos. 2 to 4 are acquitted. She takes exception to
correctness and manner of appreciation of evidence at the hands of
learned Trial Court and prays to interfere by allowing the appeal.
On behalf of State :
4. Learned APP as well as learned counsel for respondent
no.1/informant canvassing in support of judgment, pointed out that
role of the present appellant has been crystallized. That, informant
Mithu himself is an eye witness coupled with injured witnesses
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Deepak and Seema. That, they have also deposed that they being
assaulted by appellant/accused no.1 by means of sword. That,
grievous injuries were inflicted, which is confirmed by the medical
experts, who were also examined as witnesses. That, prosecution
version has remained intact. Therefore, learned trial court has
correctly appreciated the available evidence and committed no error
in accepting the case against present appellant, and hence, they pray
to dismiss the appeal for want of merits.
STATUS AND ROLE OF PROSECUTION WITNESSES
5. In support of its case, prosecution has examined as many as
fifteen witnesses. Their role and status and the sum and substance of
their evidence can be summarized as under :
PW1 Khaja has acted as pancha to spot panchanama Exhibit 23.
PW2 Babasaheb is
PW3 Suresh is elder brother of informant. He deposed at Exhibit 28
as under :
"Mithu More is my elder brother. Mithu More has three
daughters and one son. On 23-2-2005, I alongwith my brother
Mithu and his wife and parent have worked in the field. After
taking meals, I alongwith my parent and niece Urmila went to
another house for sleeping. My elder brother Mithu More and
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his wife and two daughters and one son were sleeping in his
house. At about 10.30 p.m. I heard shouts, So I came to the
house of my elder brother Mithu More. I had seen that my
nephew Deepak More and niece Seema More have sustained
bleeding injury. Deepak More had sustained bleeding injury on
right hand, right cheek. My niece Seema had sustained bleeding
injury on her both hands and forehead. One finger of both
hands of Seema were amputated. I had seen bleeding injury on
the left hand of another niece Kaveri. Mithu More has told me
that accused No.1 Bhagwat has assaulted his children by sword.
My brother Mithu More has caught hold accused No.1 Bhagwat,
who was having a sword in his hand. I had seen accused 2 to 4
and absconding accused Gorakh Pawan standing near the house
of my brother Mithu More. My brother Mithu More has handed
over accused No.1 Bhagwat to me. After police had come on the
spot, I handed over accused No.1 Bhagwat to them.I had sent
injured nephew and niece and my mother to civil hospital, Beed
by jeep My statement was recorded by the police."
PW4 Surekha is wife of informant. At Exhibit 29, she deposed as
under :
"On 23.2.2005 I alongwith my husband and parents in law and
my husband's younger brother Suresh have worked in the field.
We returned to the house in the evening. After taking meals, my
parent in law and my husband's younger brother Suresh went to
another house for sleeping. I alongwith my husband and two
daughters and a son were sleeping in our house. Since she goats
were crying, my husband woke-up. He had seen accused No.1
standing as with his hands on the back. Accused No.1 asked my
husband as to how he was acquitted in the murder case. When
accused No.1 Bhagwat tried to run towards my husband Mithu
More, and my husband ran away. Then accused No.1 went
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inside my house and assaulted my children by sword. My
children were shouting. Therefore, we came towards our house.
I had seen accused no.1 assaulting my son Deepak by sword on
right cheek and right hand. Accused No.1 had also assaulted my
daughter Seema on her forehead and hands by sword. Accused
No.1 had also assaulted my daughter Kaveri by sword on wrist.
My husband Mithu More has caught hold accused No.1
Bhagwat. In the meantime, My parents in law, my husband's
younger brother P.W.3 Suresh and others came running. My
husband Mithu More has handed over accused No.1 in the
custody of his younger brother P.W.3 Suresh. Then we had taken
our children to civil hospital Beed in a jeep.Incident has
happened at about 10.30 p.m. I had seen accused 2 to 4
standing near my house. I know accused 1 to 4 present before
the Court."
PW5 Dr. Vijayamala Shinde, was the Medial Officer at Civil Hospital
Beed, who had given medical treatment to the informant, is
examined at Exhibit 31 wherein she deposed as under :
"Since 13th December, 2004 I am working as Medical officer at
Civil Hospital,Beed. On 24.2.2005 at 6.15 p.m. Mithu More,
came to civil hospital. He has sustained injuries. I had examined
him and given him medical treatment. I had issued certificate.
Mithu More has sustained contused lacerated wound on right
palm, 1/2 X 1/2 cm and lacerated wound on the right side of
abdomen 8X 1/2 cm. Both injuries were simple in nature, and
they might have been caused by hard and rough weapon.
Exh.32 is medico legal certificate. It is in my handwriting. It
bears my signature."
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PW6 Vijay Bagul, Head Constable at Police Station Chakalmba,
who registered the offence, is examined at Exhibit 33.
PW7 Dr. Indrakumar Shinde, was the Medial Officer at Civil Hospital
Beed, who had examined and given primary medical treatment
to the informant and other injured persons. At Exhibit 43, he
deposed as under :
"Since last six years, I am working as Medical officer, Civil
Hospital, Beed. On 24.2.2005, at 12.00 night Deepak Mithu
More, and Seema Mithu More and Kaveri Mithu More came to
civil hospital, Beed. They were injured. I had examined them
and given them primary medical treatment and referred them to
Govt. Medical College, and Hospital, Aurangabad for further
treatment, Deepak Mithu More has sustained the following
injuries:
1. Incised wound above and below each right cheek size 5
X 2 X 1 and 4 X 2 X 1 cm. It might have caused by sharp
weapon. Nature of injury was simple.
2. Incised wound right dorsum of palm. Size 3 X 2 X 1 cm.
It was also caused by sharp weapon. Nature of injury was
simple.
3. Compound fracture with C.L.W. on right first and
second metacarpal, size 2 X 2 X 1 cm, caused by hard and
blunt object. Nature of injury was grievous and therefore,
he was referred to Govt. Medical College, Hospital,
Aurangabad, after taking X-ray of skull. Accordingly. I had
issued medical certificate. It is in my handwriting. It bears
my signature. Exh.44 is the medico legal certificate.
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2. I had examined Seema Mithu More at 12.10 a.m. on
examination, I found the following injuries:
1. Incised wound on left frontal area size 3 X 2 X 1 cm.It
was caused by sharp weapon. nature of injury was simple.
2. Incised wound on right wrist dorsum size 2 X 2 X1 cm.
It was also caused by sharp weapon, this injury was also
simple in nature.
3. Incised wound with fracture proximal phalanx on left
index finger size 2 X 2 X 1 cm. It was caused by sharp
weapon, nature of injury was grievous, and therefore, X-
ray was taken and she was referred to Govt. Medical
College and Hospital, Aurangabad for further treatment.
I have issued medico legal certificate. It is in my handwriting. It
bears my signature. Exh.45 is the medico legal certificate.
3. On the same night, I had examined Kaveri d/o Mithu More at
12.15 a.m. She has one incised wound with compound fracture
on left forearm, It's size was 3 X 2 X 1 cm. It was caused by
sharp weapon, nature of injury was grievous and therefore,
X-ray was taken and thereafter she was referred to Govt.
Medical College and Hospital, Aurangabad for further
treatment. Accordingly, I have issued medical certificate. It is in
my handwriting. Exh.46 is medico legal certificate. It bears my
signature.
PW8 Seema, i.e. daughter of informant, is examined at Exhibit 35
wherein she deposed as under :
" I know all the accused present before the Court. Incident has
taken place on 23rd February, 2005. It was 8.00 p.m. At that
time, I was sleeping, alongwith my parent and brother and
sister. I heard the noise of she-goats, and therefore, I woke-up.
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My father Mithu More went out side the house. My father was
talking with some body, Then, my mother went out side the
house. Accused No.1 Bhagwat More entered my house
alongwith the sword in his hand. Accused No.1 Bhagwat More
has assaulted me on my both palms and forehead by sword. I
sustained bleeding injuries on my forehead and fingers. Accused
No.1 Bhagwat has also assaulted my brother Deepak on his
right cheek, right arm and right hand, by sword. He also
sustained bleeding injuries. Acoused No.1 Bhagwat has also
assaulted my sister Kaveri by sword on her left hand. She also
sustained bleeding injury. We started shouting loudly, So, my
parent came running inside the house. My father was caught
hold accused No.1 Bhagwat alongwith sword. My father
sustained injuries on his hand and stomach. My father has given
accused No.1 Bhagwat in the custody of uncle Suresh More.
Then, my father has brought jeep from the village, and brought
us to civil hospital, Beed for treatment. After giving treatment. I
alongwith my brother and sister were referred to Govt. Medical
college and Hospital, Aurangabad for treatment on the next day.
I was admitted in Govt. Medical college and Hospital,
Aurangabad for five-six days. Police has recorded my statement
while I was admitted in Govt. Medical College and Hospital, at
Aurangabad.
PW9 Babasaheb, who is Panch witness to seizure panchanama.. At
Exhibit 57 wherein he deposed as under :
" I alongwith Shaikh Yunus were present at Bus stand. P.S.I.
Syed has called me and Sk. Yunus to the Police Station Accused
No.1 Bhagwat has produced one sword and Full Pant and Shirt
having stains of blood and same were seized by the police in my
presence. Exh.58 is seizure memo and it bears my signature, as
e well as signature of other panch Sk. Yunus. Witness is shown
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seized sword article No.1, shirt article 2 and full pant article 3,
which he identifies to be the same. Police had affixed slips on
the seized articles and I have signed on those slips. Sword
Article 1 was blood stain. Similarly on the shirt Article 2, there
were blood stains, I know accused No.1 who is in police custody.
custody."
PW10 Pandurang, who is Panch witness to seizure panchanama. At
Exhibit 59, wherein he deposed as under:
"On 7.3.2005, I was called by the Police at Police out post
Umapur. Police has also called one Khaja Pathan of Antarwali.
Police has seized clothes of Children of Mithu More, in my
presence. Police have seized blood stained clothes of Deepak
More and Seema More in my presence. The said clothes were
blood stained. Exh. 24 is seizure memo and it bears my
signature, as well as signature of Khaja Pathan and P.S.I.
Pansambal. Said clothes were produced by Mithu More. Witness
is shown seized clothes articles 4,5 and 6 and he identifies to be
the same. Slips bearing my signature and signature of other
panch we affixed on articles 4 to 06."
PW11 Mithu, informant, who is deposed at Exhibit 60 as under:
"I am residing at Narayanwadi alongwith my parent, brother,
wife, three daughters and a son. Names of my daughters are
Urmila, Seema and Kaveri.Name of my son is Deepak. I own
and possess 5 Acres of agricultural land at Narayanwadi.I own
two houses at Narayanwadi.on 23-2-2005 I alongwith my
parent, brother and wife have worked in the field and returned
to the house at 6.00 p.m.after taking meals, my parent, my
daughter Urmila and brother Suresh went to sleep in another
house. I alongwith my wife and son Deepak and two daughters
namely Seema and Kaveri went to sleep in the house at about
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9.00 p.m. Due to noise of she-goat, I woke- up and came out
side the house by opening the door. I had seen accused and
Bhagwat standing with his hands behind the back. Accused
No.1 Bhagwat asked that whether I was acquitted. I told in
affirmative. Hearing my conversation with accused No.1 my
wife came out side the house, Immediately accused No.1 went
over me alongwith sword in his hand. I alongwith my wife went
towards Maruti temple. So, accused No.1 Bhagwat entered in
my house and assaulted my children by sword. Due to shouts of
my children. I alongwith my wife came running. I had caught
hold accused No.1 Bhagwat alongwith sword while he was
coming out side my house. Due to scuffle between me and
accused No.1, I sustained injury of sword on my stomach and
right hand. In the mean time, people assembled there. My
cousin brother P.W.2 Babasaheb More, Gopinath Narhari
Shingte, my mother Radhabal More,my father Tukaram, my
brother Suresh More and many others have come on the spot. I
had seen accused 2 to 4 standing near my house, alongwith
sticks in their hands. They ran away from the spot. I had
handed over accused No.1 Bhagwat to my brother Suresh. I had
seen my son Deepak injuries on right cheek, right arm, and right
wrist. Accused No.1 Bhagwat has assaulted my daughter Seema
by sword onheher both hands, on forehead. One finger of right
hand of my daughter Seema was amputaled.Accused No.1 has
also assaulted my daughter Kaveri by sword on left hand. So, I
went in the village for bringing jeep in order to admit my
children in the hospital, Jeep was of Waman Satle. I alongwith
my injured daughters and son and my mother and wife went to
Civil Hospital, Beed for treatment.Incident has taken place on
23.2.2005 at 10.30 p.m.
2) Police had come in Civil Hospital, Beed. My statement was
recorded by police as I was injured. Exh.61 is my report. It bears
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my signature. I know all accused present before the Court. On
7.3.2005 I have produced the blood stained clothes of my
children to the police and the same were seized by the police in
presence of panchas. Witness is shown the seized clothes of his
daughters and son- articles 4 to 6. He identifies it to be the
same.
PW12 Jagannath has acted as pancha to spot panchanama at Exhibit
65, who does not support the case of prosecution.
PW13 Balabhau has acted as pancha to spot panchanama at Exhibit
67, who also does not support the case of prosecution.
PW14 Jsayyad Shaukatali PSI, Police Station Talwada, has recorded
the statement of injured.
PW15 Ghanasham Pansambal, PSI, is the Investigation Officer.
ANALYSIS
6. Evidence of PW-3 Suresh, PW-4 Surekha, PW-8 Seema and PW-
11 Mithu is crucial. Their testimonies are reproduced in the aforesaid
paragraphs. On placing testimonies of above witnesses in
juxtaposition, it is revealed that they are consistent about occurrence
taking place on night of 23.02.2005. In the backdrop of previous
episode of murder of the father of accused/appellant Bhagwat, he
came armed with sword, he entered the house of Mithu and initially
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assaulted his children namely, Deepak and Seema. Mithu had caught
appellant on the spot, and the entire occurrence was eye witnessed
by informant Mithu, his wife Surekha and their injured children, i.e.
Deepak and Seema. Injured Deepak and Seema are also examined by
prosecution and they have categorically stated about assault made on
them by the present appellant by means of the sword. In spite of
these witnesses subjected to extensive cross, their testimony about
mounting assault and use of sword by appellant Bhagwat and
causing injuries to the injured, i.e. children and Mithu himself has
not ben rendered doubtful and has remained unshaken. Rather
manner of cross to these witness clearly suggested that occurrence is
accepted.
7. PW-5 and PW-7, who are medical experts and to whom injured
were referred for medical examination, are also examined. They have
also deposed about examining the injured and issuing injury
certificates.
8. There is a seizure conducted at the instance of the appellant in
the presence of panchas, who have corroborated the testimony
regarding a memo being given and the seizure of a sword being
effected at his instance. Therefore, there is overwhelming evidence
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about the assault and it is got verified by the the other injured as well
as direct eye witnesses, who have apprehended the accused and
handed over to police. Independent witnesses like medical experts
confirm injuries coupled with seizure. There is direct evidence.
Therefore, required essential ingredients for the offence for which
appellant is charge-sheeted are borne out from the prosecution
evidence.
SUMMATION
9. Perused impugned judgment. Learned Trial Court has arrived
to just and proper conclusion on appreciation of evidence. This court
do not find any infirmity in the manner of appreciation of the
evidence at the hands of learned Trial Court. The view taken by the
learned Trial Court is the only possible view that could emerge on the
appreciation of the available evidence. Therefore, the appeal being
devoid of merits, I proceed to pass following order.
ORDER
The criminal appeal is hereby dismissed.
( ABHAY S. WAGHWASE )
JUDGE
S P Rane
