{1} Cri. Appeal No.346/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.346 OF 2010 Sursing Juga Pawara APPELLANT Age-53 years, Occ-Labourer R/o Chilare, Tq-Shirpur Dist-Dhule VERSUS The State of Maharashtra RESPONDENT ....... Mr. Joydeep Chatterji, Advocate for the appellant Mr. S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 20 th July 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. Challenge in this appeal is to the conviction of the appellant for an offence punishable u/s 302 and 201 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.2000/-, in default to undergo SI for 6 months, awarded by the Additional Sessions Judge-1, Dhule vide judgment and order dated 21.08.2010 rendered in Sessions Case No.153/2009. 2. Prosecution case, as unfolded during the trial, may briefly be summarized as follows: {2} Cri. Appeal No.346/2010 a) PW-6, API Manjitsing Bagga, attached to Shirpur Police station, on 06.08.2009, registered an offence at Crime No. 182/2009 against the appellant u/s 302 and 201 of the Indian Penal Code on the basis of complaint (Exhibit-13) lodged by PW-2 Tarasing Pawara on the allegation of murder of his brother, Munna @ Manulal. Investigation of the said crime was taken over by PW-6 Manjitsing himself. He, after visiting the spot, drew inquest Panchanama (Exhibit-15) on the dead bod. Thereafter, Spot Panchanama (Exhibit-25) also came to be drawn partly at Lakdya Hanuman Shivar where the dead body was found and partly in Chillare Shivar where the incident of assault has taken place. From the spot at Chillare Shivar one pair of foot wear (Article-3) so also blood mixed sand and controlled sand was collected. Thereafter, the dead body was forwarded to postmortem examination to Cottage Hospital, Shirpur. Dr.Nitin Nikam (PW-1) performed the postmortem. He noticed the following external injuries on the dead body. 1. Abrasion injury with haematoma over left forearm and elbow. 2. Left leg, shin of tibia injuries above below 2 cm with black colour 1 x 1 cm at middle and 2 x 1 cm above ankle joint. 3. Right leg shin of tibia 1 x 2 cm. 4. Fracture of skull vault opened. {3} Cri. Appeal No.346/2010 During the internal examination, he noticed fracture wound over vault and crushed injury of size 6 x 4 x 6 cm. The brain matter was open, which was crushed in the injury of skull. It was opined that all the injuries were antemortem and were sufficient to cause death in ordinary course. It was further opined that the head injury is possible by axe while the crush injuries are possible if the body is dragged on rough surface. According to the medical officer, cause of death is due to hemorrhagic shock resulting from head injury. Accordingly, Postmortem report (Exhibit-11) was prepared. b) The appellant came to be arrested on 06.08.2009 itself, vide arrest Panchanama (Exhibit-17). On 08.08.2009, while in custody, the appellant made a disclosure statement (Exhibit-22) leading to the discovery of ash of burnt clothes and axe, at the instance of the appellant, which came to be seized vide seizure Panchanama (Exhibit-22A). Thereafter, statements of certain witnesses, including statement of PW-5 Dhedgya, came to be recorded. Statement of PW-5 Dhedgya was recorded by JMFC, Shirpur u/s 164 of the Criminal Procedure Code. c) The property, which was seized during the investigation, was forwarded to the Chemical Analyzer for examination on 01.09.2009 along with covering letter (Exhibit-29). The CA reports are at Exhibit-30 to 32. One {4} Cri. Appeal No.346/2010 photographer (PW-7) Jatan Pawara, had taken photographs (Exhibit-40 to 52) of the dead body and surrounding area. After completion of the investigation, charge sheet was filed against the appellant before JMFC, Shirpur. d) On being committal of the case to the Court of Sessions, trial Court framed charge (Exhibit-6) against the appellant for an offence punishable u/s 302 and 201 of the Indian Penal Code. The appellant abjured his guilt and claimed to be tried. Prosecution, in support of its case, examined in all 7 witnesses. Defence of the appellant is of total denial. After appreciation of the evidence, trial court convicted the appellant as aforestated. 3. For better appreciation of the submissions advanced before us, by Mr.Chatterji, learned counsel for the appellant and Mr.Tambe, learned APP for respondent State, it would be appropriate to advert to the material evidence on record. The pivot of the prosecution case revolves round the evidence of sole eye witness, PW-5 Dhedgya Pawara, Medical evidence and the evidence of recovery of weapons at the instance of the appellant. 4. From the medical evidence i.e. Postmortem Report (Exhibit-11), particularly injury No.4, which is corresponding to injuries mentioned in column No.19 (I) to (III) and in column No.20 (i), there is no doubt in our mind that the death of deceased {5} Cri. Appeal No.346/2010 Munna is a homicidal one. 5. It transpired from the evidence of PW-5 Dhedgya Pawara, that at about 8 pm on 5th August 2009, he and deceased Munna had been to the filed of the appellant for plucking Katurle. At that time some dogs started barking and on hearing the same, the appellant came there with axe. On seeing the appellant, both he and deceased started running but the appellant followed and chased them. The appellant kicked Munna and hence Munna (deceased) felled down in a Nala. PW-5 Dhedgya proceeded and witnessed the incident from some distance. The appellant assaulted Munna on his legs and head with the axe. Thereafter the appellant lifted the body of Munna on his shoulder and went away from the spot. PW-5 Dhedgya got frightened and became speechless. Thereafter, he straightway went to his house and did not disclose the incident to anybody. On the next morning, complainant Tarasing came to his house along with Police Patil, Sarpanch and others. They enquired the whereabouts of the deceased. At that time, he disclosed the incident witnessed by him in the night. Thereafter, he led all of them to the spot and pointed out the place where they were plucking Katurale so also the spot where Munna was assaulted by the appellant. He had also shown them the spot where the dead body was lying. In cross examination, he states that it requires two hours to go to the field of appellant by walking and he had not gone to the filed of Rajesh Pawara. The hillocks are in between the field of appellant and the {6} Cri. Appeal No.346/2010 field of Rajesh. He has further stated that the police Patil was present at the time of seizure of axe from the field of the appellant. He states that he and deceased Munna started plucking Katurle at 7.00 pm and Munna had kept the Katurle, plucked by him, in handkerchief. In cross examination itself, he states that Munna was assaulted on his both the thighs, hands and head by axe by the appellant and he had witnessed the same from the distance of about 8 to 10 paces. He had hidden himself behind the bushes. He denied that the portion marked “B” in his statement recorded by the Magistrate u/s 164 of the Criminal Procedure Code. According to him, he had stated before the Magistrate that the appellant assaulted on the head of Munna with axe, whereas it is recorded that appellant cut hands of Munna. Similarly, it is stated that appellant assaulted on the legs but it is not specifically stated that the appellant assaulted on thighs of Munna. In further cross examination, he admits that though he had witnessed the incident from a very close distance, yet he did not resist the act of the appellant, as the appellant was armed with axe while he was unarmed. Omission has been duly proved in his cross examination that it is not mentioned in his police statement that after Tarasing came to his house, he accompanied Tarasing to the filed of the appellant and shown him the spots. The incident has taken place during the night of 5th and 6th August 2009 and in the early hours of 6th August, brother of the deceased, the first informant, Tarasing, had been to the house of PW-5 Dhedgya and on his inquiry PW-5 Dhedgya had disclosed the incident to him and led {7} Cri. Appeal No.346/2010 Tarasing and others to the spot where the dead body was lying. According to us, the evidence given by this witness is supported by the circumstances as reflected in Spot Panchanama, Inquest Panchanama so also the Postmortem report. 6. PW-3 Jamsing, a Panch witness, states about the disclosure made by the appellant at Exhibit-22 and appellant leading the police to the spot from where blood stained so also controlled sand was seized. It further transpired form his evidence that from the spot shown by appellant, ash of burnt clothes was seized so also an axe was recovered at the instance of the appellant. Evidence of this witness, in respect of recovery of weapon at the instance of appellant so also ash of burnt clothes from the spot shown by the appellant, is not shaken even in his cross examination. 7, PW-4 Kantilal, who was Sarpanch of the said village, states that he has acted as Pancha witness to the inquest Panchanama so also the memorandum of disclosure statement made by the appellant and recovery of weapons at the instance of the appellant. 8. We have heard Mr.Joydeep Chatterji, learned counsel for the appellant followed by the submissions of Mr.Tambe, learned APP for respondent State. Learned APP supported the findings arrived at by the trial court while convicting the appellant for an {8} Cri. Appeal No.346/2010 offence of murder and concealing the evidence. Learned counsel for the appellant has urged before us that the appellant has exercised right of defence to protect his property. It is further asserted that as per the evidence of PW-5 Dhedgya, deceased Munna and PW-5 himself had been to the field of the appellant to pluck katurale, which amounts to theft and if the appellant has done any act in protection of his property, it would cover under the exception of right to defend the property. It is further urged that though the witnesses have supported the discovery of weapons at the instance of the appellant, yet no blood was found on the clothes of the appellant so also the result of the chemical analysis in respect of blood found on the weapon is inconclusive. It is also urged that the evidence of the Medical Officer, who has performed the Postmortem, also does not match with the time of death as alleged by PW-5. In the premise, it is urged that benefit of doubt be extended to the appellant by allowing the appeal and by setting aside the conviction and sentence recorded by the trial court. 9. We are not in agreement with the submission advanced by learned counsel for the appellant that the act of the appellant covers under the exception of right to defend his property, for the simple reason that it has clearly stated by PW-5 Dhedgya, that while they saw appellant approaching them with an axe, both he and deceased started running and the appellant followed and chased them and then after initial assault when the deceased felled on the ground, the appellant gave blow of axe on {9} Cri. Appeal No.346/2010 his head and thereafter on hands and legs. Thus, in view of the fact that the appellant has assaulted the deceased while the deceased was running away from his field, by chasing him, it would not amount to exercise of right to defend his property. Thus, in the light of evidence of PW-5, which we find to be reliable, the submission of learned counsel for the appellant that the act of the appellant covers under the exception of right to defend his property, cannot be accepted. 10. Considering the postmortem report and evidence of the medical expert, there cannot be duality of opinion that the death of deceased is a homicidal one. The medical officer in his re- examination, conducted by the prosecutor, has stated that rigor morris was present on the body of the deceased before 24 hours, yet there is no hard and fast rule as to at what particular time the rigor morris would appear on the dead body. Regarding finding of partially digested food in the intestine of the deceased, it is opined by the medical officer that the same cannot be the sole criterion to decide the exact time of the death. In any event, as it has sufficiently been established that the death is homicidal death and the dead body was fond in the agricultural field of one Rajesh and hence only question for our consideration is as to whether the testimony of PW-5, the sole eye witness, is to be believed or not. It is nobody’s case that there was enmity between PW-5 Dhedgya and the appellant. Moreover, the evidence of PW-5 appears to be natural and reliable and the same has been supported by the {10} Cri. Appeal No.346/2010 medical evidence in the form of Postmortem Report. Additionally, the photographs at Exhibit-40 to 52 clearly project the situation at the spot where the dead body was found. Considering the fact that PW-5 has disclosed the incident to first informant Tarasing, brother of the deceased, within some hours of its occurrence coupled with the fact that he had no enmity with the appellant and hence had no reason to rope him falsely, and hence there is no question to discard his testimony. As the case of the prosecution is based on the evidence of PW-5 Dhedgya, who is a reliable witness and his testimony gets corroborations from the medical evidence and hence merely because the expert evidence, regarding inconclusive result of the blood found on the weapon, would not absolve the appellant or take away the evidential value of the evidence of PW-5. In that light of the matter, we do no notice any fault, much less perversity, in the findings arrived at by the trial court while convicting the appellant. Considering the overall effect of the evidence discussed above, the appeal being sans merits deserves to be dismissed. 10. Consequently, the appeal, being devoid of any merit, stands dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel346-10