1 Cri.Appeal No.180 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 180 OF 2010 Ramu s/o Kusha Jadhav, Age : 30 years, Occu : R/o Talwali, Tal. Roha, District Raigad ..APPELLANT (Orig. Accused No.1) VERSUS The State of Maharashtra, Through Police Station Officer, Police Station, Talwala, Tal. Georai, District Beed ..RESPONDENT Mr A.R. Borulkar, Advocate (appointed) for the appellant; Mr S.D. Kaldate, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 1st July, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to 2 Cri.Appeal No.180 of 2010 imprisonment for life by the Sessions Judge, Beed, by judgment dated 20.3.2010, in Sessions Case No.55 of 2009, by this appeal questions the correctness of his conviction and sentence. Since the appeal was presented through jail, we had appointed Advocate Mr A.R. Borulkar to represent the appellant in this appeal. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.7 A.P.I. Arun Jagtap, who was attached to police Station, Talwada, received a telephone from the Police Patil of village Aurangpur Kukda on 25.2.2009, at about 11.00 to 11.30 p.m. informing him about the finding of a dead body in the field of one Shri Kulkarni. P.W.7 A.P.I. Jagtap, therefore, immediately proceeded to the scene of the offence. At the scene of the offence he noticed the dead body of one Harischandra Jadhav with injuries and accordingly an inquest panchnama at Exh.22 came to be recorded in the presence of P.W.5 Vikram and another panch. The dead body was referred for post mortem examination and meanwhile P.W.1 Gopinath lodged his report at Exh.14. On the basis of the said report an offence vide Crime No.5 of 2009 was registered under section 302 and 504 of the Indian Penal Code. He thereafter visited the scene of the offence and drew the scene of the offence panchnama at Exh.16 in the presence of P.W.2 Asaram. From the scene of the offence a gunny bag stained with blood and blood mixed mud and control mud came to 3 Cri.Appeal No.180 of 2010 be seized. P.W.7 A.P.I. Jagtap searched for the accused and took the accused in his custody at about 19.30 hours under arrest panchnama at Exhs.30 and 31. The clothes on the person of accused no.1 Ramu came to be seized in the presence of panchas under seizure memo at Exh.26. Clothes of deceased which were produced by Police Constable Misal came to be seized under seizure memo at Exh.27 in the presence of panchas. During custodial interrogation, accused no.1 Ramu on 29.1.2009 expressed his willingness to point out the place where a scythe had been hidden by him. The aforesaid statement came to be recorded in the presence of P.W.4 Vijay at Exh.19. The accused no.1 Ramu then led the police and the panch to village Aurangpur Kukda in the field of one Shri Kulkarni. The accused walked further in the field and after crossing a distance of about 100 ft. produced a scythe which had been concealed in the heap of thorns. The said scythe which was found stained with blood came to be seized under seizure panchnama at Exh.20. The said scythe is Article 1. The seized articles were referred to Chemical Analyser through Police Constable Jadhav as per the requisition at Exh. 32. The report of the Chemical Analyser is at Exhs.33 and 34. Pursuant to the completion of investigation a charge-sheet against the accused came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.6 framed charge against the appellant and accused no.2 Baban for an offence punishable under section 302 read with sec. 34 and 504 read 4 Cri.Appeal No.180 of 2010 with sec. 34 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. The Trial Court, upon appreciation of the evidence of eight witnesses examined by the prosecution, convicted and sentenced the appellant as aforestated and also convicted original accused no.2 Baban under section 323 of the Indian Penal Code and sentenced him to R.I. for 30 days while acquitting him for offence punishable under section 302 read with sec. 34 and 504 read with sec. 34 of the Indian Penal Code. The appellant Baban had already undergone the period of imprisonment and, therefore, it appears that no appeal was filed by accused no.2 Baban challenging his conviction. 4. In order to effectively deal with the submissions advanced before us by Shri A.R. Borulkar, learned Counsel for the appellant and the learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.1 Gopinath, uncle of deceased Harischandra states that deceased Harischandra was his nephew and he knows both the accused. He states that 12 families along with the accused and the deceased had arrived at village Kukadgaon shivar for working in the coal fields. One Vikram Jadhav had brought them there for the work. He states that on the day of the incident he, deceased, accused and others arrived at Beed for weekly bazaar and returned back at 6.00 p.m. and had gone to their respective huts which were in the field. After the deceased arrived at his 5 Cri.Appeal No.180 of 2010 hut, he was sleeping and thereafter both the accused went to the hut of deceased. At that time P.W.1 Gopinath was chopping wood and his wife was preparing food. At that time Harischandra alone was residing in the hut. The hut of Gopinath was adjacent to the hut of Harischandra while the hut of accused nos.1 and 2 was at a distance of about 2 to 3 Kms. from the hut of Gopinath. Wife of P.W.1 Gopinath suddenly shouted that the accused were causing injuries by scythe to deceased Harischandra and, therefore, P.W.1 Gopinath rushed there. When he went to the hut of deceased, he noticed the accused running away and the scythe lying at the scene. He noticed injuries on the neck and arm of deceased. He states that he had heard the accused demanding Rs.50/- to the deceased for consuming liquor. He states that deceased died on the spot and the police arrived and thereafter he lodged his report against the accused. He has been cross-examined at length and in cross-examination he has admitted that he had reached the village in July/August, 2008. He has admitted that accused Ramu was residing with his family while accused Baban was staying alone. He corrected himself to state that accused Baban was also residing with his family. He has admitted that it was the first time that they had come to Beed for weekly market and prior to that they used to purchase their provisions in the village itself. He has admitted that the size of the hut was so small that only two persons could reside in the hut. He has admitted that he was cutting firewood by the side of the river. He has admitted as true that on holidays they used to drink liquor. He has also admitted that one Arjun used to manufacture 6 Cri.Appeal No.180 of 2010 illicit liquor and they used to go to his hut for consuming liquor. He has admitted that deceased had not come to Beed along with them and he was near his hut for the entire day. He has admitted that deceased Harischandra had also consumed liquor on that day. He has admitted that the incident occurred after about half an hour of reaching the hut. He has admitted that at that time no agricultural operations were being carried out in the agricultural field. He has admitted that the deceased and the accused were talking amongst themselves. He has admitted that he was unable to hear properly. He has admitted that the scythe was lying near the spot where deceased was lying. He has denied the suggestion that the two accused quarrelled with the deceased on account of refusal of the deceased to pay them for the liquor. He has also denied the suggestion that he had seen the accused running from the scene of the offence. 6. Prosecution has examined P.W.3 Laxmi, who states that deceased Harischandra was her nephew. She states about coming to the village for working in the coal fields. She states that her husband P.W.1 Gopinath and deceased Harischandra had gone to Beed and returned back at about 6.00 p.m. She states that she was cooking while her husband was sitting in another hut. She has admitted that she is hard of hearing and deceased Harischandra was sleeping outside the hut. She states that deceased had told her that both the accused were demanding Rs.50/- for consumption of liquor. P.W.3 Laxmi states that she had informed the 7 Cri.Appeal No.180 of 2010 deceased that if he does not have the money she would advance him the money. She states that both the accused reached there and started assaulting deceased Harischandra and thereafter accused no.1 took out a scythe which was at his waist and assaulted the deceased with a scythe by giving him three blows. Accused no.2 Baban had caught the neck of the deceased and accused no.1 Ramu had inflicted the injuries by scythe. She states that when she tried to intervene she was pushed by accused Baban. She, therefore, started shouting loudly and the accused fled away on noticing that the nearby residents had come to the scene of the offence. She has admitted that deceased Harischandra was sleeping at a distance of 10 ft. from her hut while her husband P.W.1 Gopinath was at a distance of 20 ft. She states that she was cooking the food outside the hut. She has identified scythe Article 8 as the one which was wielded by accused no.1. In cross-examination she has admitted that she has no children. She later on admitted that her son Madhu expired while her daughter was residing with her. She has admitted that the coal furnace was at a distance of 20 ft. from her hut and there were heaps of the coal by the side of the furnace. She has admitted that she had not gone to Beed for attending the bazaar. She has admitted that deceased had also consumed liquor. She has admitted that Harischanra had awakened when the accused had come there. She has admitted that there was no talk between the accused and the deceased before the infliction of the injuries. She has denied the suggestion that deceased under the influence of liquor had quarrelled 8 Cri.Appeal No.180 of 2010 with other persons. 7. Though both the witnesses have been cross-examined at length and assuming that P.W.1 Gopinath was hard of hearing, the evidence of P.W.3 Laxmi certainly establishes presence of both the accused at the scene of the offence and accused no.1 Ramu inflicting injuries to deceased by a scythe. 8. Since P.W.1 Gopinath has admitted that the scythe was left at the scene of the offence by the accused, according to us not much reliance can be placed on the discovery memorandum at Exh.19 and the subsequent recovery panchnama at Exh.20 in respect of seizure of scythe Article 8. Even if the aforesaid evidence is left out of consideration, according to us the evidence of P.W.3 Laxmi proves the offence against the appellant beyond reasonable doubt. P.W.3 Laxmi has been cross-examined but nothing of substance has been elicited in her cross-examination which would vitally affect her credibility as a witness to the incident. 9. The report of the Chemical Analyser indicates that the scythe was stained with human blood and the clothes of deceased were stained with blood of "AB group". The clothes of accused no.1 Ramu were also stained with human blood. The post mortem report indicates that deceased Harischandra had sustained the following external injuries :- 9 Cri.Appeal No.180 of 2010 1. Incised lacerated wound, 8 x 3 x 3 cm. triangular, tailing of wound which is below right ear and lateral aspect of right side of neck. Carotid artery, jugular vein cut, muscle also cut; 2. Incised lacerated wound, 4 x 2 x 2 cm., which is lower end of right arm injury to under tissue present; 3. Incised wound on middle of right arm which 5 x 2 cm. He has opined that the injuries were ante mortem and deceased had died due to asphyxia due to cardio respiratory arrest due to haemorrhagic shock due to injury to carotid artery. The post mortem report is at Exh. 36. 10. Mr Borulkar, learned Counsel for the appellant has urged before us that the motive, i.e. demand for Rs.50/- for consumption of liquor has not been established by the prosecution. According to the learned Counsel for the appellant there is substantial variance in the evidence of P.W.1 Gopinath and P.W.3 Laxmi in respect of the said demand. According to us, even if it is held that the prosecution has failed to prove the demand for Rs.50/-, the evidence of P.W.3 Laxmi clearly establishes that it was accused no.1 Ramu who had inflicted the injuries. In such circumstances, therefore, we have no hesitation to hold that the prosecution has proved the offence beyond reasonable doubt. 10 Cri.Appeal No.180 of 2010 11. There being no merit in the present appeal, the appeal is dismissed confirming the conviction and sentence. Fees payable to the learned Counsel appointed for the appellant quantified at Rs.5,000/-. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria180.10