1. Appellant assailed the judgment of conviction awarded by learned Additional Sessions Judge, Kelapur. Appellant came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 2000/- in default to suffer rigorous imprisonment for six months.
2. The case of the prosecution against the appellant in short is as under.
(i) Deceased was cousin brother of appellant. Uncle of deceased
namely, Warlu Bhima Todase was residing at Village, Kurli. He was
issueless. Due to old age, he was unable to cultivate his agriculture
land. Therefore, deceased went to Village Kurli and started cultivating
the land of his uncle Warlu. Warlu and his wife both expired.
Thereafter, deceased Raju was cultivating their land. Appellant was not
liking the cultivation of land by deceased Raju belonging to uncle Warlu.
(ii) Appellant beat deceased at Village Kurli. Appellant was claiming
his right in the land of uncle Warlu. Due to beating and threatening by
the appellant, deceased Raju came to his parents at Khandala and
started residing there.
(iii) On the day of incident i.e. on 23-12-2013, there was lunch in the
field of complainant/father of deceased. Villagers and other relatives
were called in the field. After completion of lunch programme in the
field, they returned to their house at about 7.00 p.m. Some of the
villagers did not come to their field for lunch, therefore, complainant
called villagers for dinner at his house.
(iv) Wife of Anil Todase and other women namely, Sangitabai and
Kiran were preparing food. Anil and his brother deceased Raju were
thinking as to how to make arrangement of dinner because there was a
dark. At that time, wife of Anil burnt torch. Accused came out from his
house. He raised objection in respect of pots and utensils kept in the
courtyard. Appellant kicked those pots and utensils. He came near Anil
and deceased Raju. Appellant scuffled with deceased Raju by caught
holding his collar. Deceased was saying as to why he was scuffling with
him. Anil tried to rescue deceased. Appellant pushed him. Appellant
stabbed knife in the abdomen of deceased. Deceased Raju collapsed.
Deceased sustained bleeding injury to abdomen and died on the spot.
His intestine was out of stomach due to the stab injury.
(v) At the time of incident, P.W. 3 Vijay Kongare rushed to the spot of
incident. He caught appellant and took him away from the spot. At that
time, big knife in the hand of appellant fell down. Father of deceased
had been for nature''s call. When he returned, he came to know about
the incident. He saw deceased lying dead. He immediately went to
Police Station, Shirpur and lodged the report. Crime was registered
against the appellant. On the same day, appellant was arrested. Spot
panchanama, seizure panchanama etc. were carried out.
(vi) At the time of spot panchanama, knife was also seized. Dead
body was sent for post mortem. The clothes, blood samples etc. were
seized. Those were sent to the Chemical Analyser, Nagpur. Statements
of witnesses were recorded on the next day of incident itself. After
complete investigation, Investigating Officer filed the charge-sheet
before the Judicial Magistrate First Class, Wani. As offence punishable
under Section 302 of the Indian Penal Code was exclusively triable by
the Court of Sessions, therefore, case was committed to the Additional
Sessions Judge, Kelapur, District Yavatmal.
(vii) Charge was framed at Exhibit 3 for the offence punishable under
Section 302 of the Indian Penal Code. Same was readover and
explained to the appellant. He pleaded not guilty and claimed to be
tried. Defence appears to be of total denial.
(viii) The prosecution has examined following witnesses.
(1) P.W. 1 Baban Singhu Todase (Exhibit 11)
(2) P.W. 2 Sangita Pramod Kongare (Exhibit 15)
(3) P.W. 3 Vijay Zabaji Kongare (Exhibit 16)
(4) P.W. 4 Dr. Anant Devidas Chandekar (Exhibit 18)
(5) P.W. 5 Dr. Nandkishor Mulchandji Tugnayat (Exhibit 22)
(6) P.W. 6 Anil Babanrao Todase (Exhibit 33)
(7) P.W. 7 Vilas Zabaji Kongare (Exhibit 34)
(8) P.W. 8 Ramesh Chintaman Yedshe (Exhibit 41)
(9) P.W. 9 Sunil Rajeshwar Kuntawar (Exhibit 45)
(10) P.W. 10 Sanjay Kisanrao Rathod (Exhibit 49)
(11) P.W. 11 Mukund Kashinathrao Kulkarni (Exhibit 61) and
(12) P.W. 12 Shri Sunil Krushnaji Rasekar (Exhibit 82)
(ix) Statement of accused was recorded under Section 313 of Cod of
Criminal Procedure. He denied material incriminating evidence. After
hearing the prosecution and defence, learned trial Court came to the
conclusion that appellant has committed murder of deceased Raju
Todase, therefore, appellant came to be convicted for the offence
punishable under Section 302 of the Indian Penal Code and sentenced to
suffer rigorous imprisonment for life and to pay fine of Rs. 2,000/- in
default to suffer rigorous imprisonment for six months. Hence, the
present appeal.
3. Heard learned counsel Shri Sonwane for the appellant. He
has submitted that there was dark at the time of incident, therefore, it
was necessary to conduct test identification parade. Learned counsel
has submitted that there was no test identification parade by the
investigating agency. Learned counsel has submitted that witnesses are
on enemical terms with the appellant and, therefore, they deposed
against him. He has submitted that identity of appellant is not proved,
therefore, he is entitled for acquittal.
4. Heard learned Additional Public Prosecutor Shri Lule for the State/respondent. He has submitted that evidence of eye witnesses, namely, P.W. 2 Sangita Kongare, P.W. 3 Vijay Kongare and P.W. 6 Anil Todase show that appellant stabbed deceased by big knife(sura). Appellant died on the spot of incident. Their evidence is well supported by medical evidence. Postmortem was conducted by Dr. Tugnayat (P.W. 5). As per his opinion, he found incised wound on left epigastrian, oblique, involving on 11 th and 12th rib, cavity deep. It was eliptical shape with length of 10 cm, maximum breadth was 4 cm. Injury involving part of stomach, part of large intestine and some intestinal loops protruded out from wound. There were multiple injuries to soft tissues, muscles, mesuntry vessels. As per his opinion, injury was caused by sharp object and within probably 24 hours. In his opinion, deceased died due to extensive abdominal injury. Accordingly, he issued postmortem report, Exhibit 25.
5. Learned Additional Public Prosecutor has submitted that evidence of eye witnesses are well supported by medical evidence and also Chemical Analyser''s reports. At last, he submitted that judgment is perfectly legal and correct, hence, appeal is liable to be dismissed.
6. P.W. 1 Baban Todase, father of deceased had been to nature''s call at the time of incident. When he returned back, he came to know about the incident and saw deceased lying dead. Immediately, he went to Police Station, Shirpur and lodged First Information Report at about 7.30 p.m. Incident took place at about 7.00 p.m., therefore, there is no delay in lodging the report.
7. P.W. 2 Sangita Kongare was the neighbour of deceased. She had been to the house of deceased for cooking food at the time of incident. As per the evidence of this witness, lunch programme was in the field of Baban Todase. Some of the villagers did not attend the programme, therefore, they decided to call villagers for dinner. Therefore, P.W. 2 Sangita was at the house of deceased for cooking food. She heard the noise of quarrel. Therefore, she came outside of the house. Appellant Maroti assaulted deceased Raju by big knife. She has further stated that Raju collapsed and sustained severe injuries to his stomach. They shouted loudly. Other persons reached there immediately. Her brother-in-law came to the spot with other persons and took away appellant from the spot.
8. P.W. 3 Vijay Kongare has stated in his evidence that at the time of incident, villagers were called at the house of complainant for dinner. He was present in his house. P.W. 2 had been to the house of complainant for cooking food. He along with his brother and father were sitting in Osari (varhanda). He heard hue and cry. He immediately rushed to the spot of incident. He caught appellant and took him away, at that time, big knife in the hand of appellant fell down on the ground. Appellant gave him dash and ran away. He also sustained simple injury to his hand. He saw Raju Todase lying on the ground and blood was oozing from his stomach.
9. P.W. 4 Dr. Anant Chandekar has stated in his evidence that he examined appellant and found injuries to his right thumb. Blood was seen all over right palm.
10. P.W. 5 Dr. Tugnayat has stated about the postmortem on the dead body.
11. P.W. 6 Anil Todase, brother of deceased has stated that deceased Raju was residing at Village Kurli and cultivating the land of his uncle Warlu. After the death of Warlu and his wife, deceased Raju continued cultivation of the land of Warlu at Village Kurli. Raju arranged lunch in the field. Accused had also attended that programme at Village Kurli. Accused was saying again and again that Raju is alone cultivating that land and he is also having share in that land. On that count accused was threatening Raju.
12. Due to continuous threats of appellant, deceased Raju left Village Kurli and started residing at Village Khandala. On 23-12-2013, there was lunch programme in their field. Some of the villagers did not attend, therefore, they arranged dinner at their house. Sangitabai, Kiran and other ladies were preparing food. Appellant came to their courtyard and raised objection in respect of pots and utensils kept in the courtyard. Appellant kicked those pots and utensils. He came near to him and Raju.
13. P.W. 6 has further stated that appellant scuffled with Raju by catching his collar. Raju stated to appellant as to why he was scuffling and quarreling. He tried to rescue the deceased. Appellant pushed him and stabbed knife in the abdomen of Raju. He saw the incident in the light of torch. Due to assault, Raju collapsed and died on the spot.
14. P.W. 7 Vilas Kongare has stated that police prepared spot panchanama, Exhibit 35, seizure panchanama, Exhibit Nos. 36, 37 and 38. In his presence, inquest panchanama, Exhibit 39 was prepared.
15. P.W. 8 Ramesh Yedshe has stated that police seized T-shirt and pant of appellant as per seizure panchanama, Exhibit 42. Police also seized blood sample vide Exhibit 43. After three days, police seized viscera and blood samples vide Exhibit 44.
16. P.W. 9 Sunil Kuntawar has stated that he was working as Naib Police Constable. He had taken viscera bottle to C.A., Nagpur.
17. P.W. 10 Sanjay Rathod has stated about the collection of blood sample etc. and query report. He also carried seized property to C.A., Nagpur.
18. P.W. 11 Mukund Kulkarni investigated the crime. He has stated about the investigation. P.W. 11 proved the map of spot of incident.
19. P.W. 12 Sunil Rasekar, Naib Tahsildar has stated that he went to the spot of incident and prepared map of spot of incident vide Exhibit 83.
20. P.W. 2 and 3 are independent witnesses. P.W. 6 is the real brother of deceased. P.W. 6 has stated about the motive on the part of appellant to commit murder of deceased. P.W. 1 is the father of deceased. He has also stated about the motive on the part of the appellant.
21. The real cause of dispute is in respect of land owned by uncle of P.W. 6 and deceased namely, Warlu residing at Village Kurli. As per the evidence, Warlu had no issue, therefore, deceased Raju was called by him to cultivate his land. After death of Warlu and his wife, deceased Raju continued to cultivate his land at Kurli. Appellant was not liking the same. Appellant was claiming his right in the land of his uncle. Appellant sometime beat the deceased and threatened him and therefore, deceased started residing with his parents at Village Khandala.
22. At the time of incident, P.W. 2 was at the house of deceased to prepare food for the villagers. She was preparing food along with other women. She heard hue and cry. She came out. She saw appellant stabbing deceased by a big knife. Deceased fell down. She along with other cried loudly. Other villagers also rushed there.
23. P.W. 3 has stated in his evidence that after hearing hue and cry, he immediately rushed to the spot. He caught appellant. Appellant dashed him, that time, big knife fell down from the hand of appellant. This circumstance supports the evidence of P.W. 2 and evidence of P.W. 6. P.W. 6 has specifically stated about the incident that appellant came to the spot of incident, started quarrel, caught hold collar of deceased and stabbed deceased by a big knife (sura). The intestine came out of stomach and deceased died on the spot. Evidence of P.W. 6 is well corroborated by independent witnesses P.W. 2 and P.W. 3.
24. Oral evidence stated by P.W. 2 and P.W. 6 is also well supported by medical evidence. As per the evidence of P.W. 5 Dr. Tugnayat, he found incised wound on left epigastrian, oblique, involving on 11th and 12th rib, cavity deep. It was eliptical shape with length of 10 cm, maximum breadth was 4 cm. Injury involving part of stomach, part of large intestine and some intestinal loops protruded out from wound. There were multiple injuries to soft tissues, muscles, mesuntry vessels. As per his opinion, injury was caused by sharp object and within probably 24 hours. In his opinion, deceased died due to extensive abdominal injury. Accordingly, he issued postmortem report, Exhibit 25.
25. P.W. 5 Dr. Tugnayat has stated that he received knife for query along with a letter from Investigating Officer. It matches with diagram on the query report. Injuries mentioned in the postmortem report of deceased Raju Todase can be caused by the said object. Accordingly, he issued query report, Exhibit 26. He collected blood sample of deceased and clothes handed over to police.
26. Oral evidence as well as evidence of Dr. Tugnayat is also well supported by Chemical Analyser''s reports. Seized knife and other seized articles were sent to Chemical Analyser, Nagpur. The blood group of deceased Raju Todase was determined as blood group ''A'' as per C.A. report, Exhibit 28. Blood group of appellant Maroti was determined as blood group ''B'' as per Exhibit 29. As per Exhibit 30, blood detected on iron knife/sura was found blood group ''A''. Therefore, it is clear that weapon which was used by appellant was having blood of deceased. The clothes of deceased and appellant were also stained with blood of deceased. C.A. report, Exhibit 78 shows that clothes of deceased and appellant were stained with blood. Clothes of deceased and T-shirt of appellant i.e. Article No. 4 were having blood group ''A'', that is of deceased. All these evidence clearly show that appellant is the author of crime and none else.
27. It is argued by the side of appellant that there was dark and, therefore, test identification parade was necessary. It is pertinent to note that witnesses have specifically stated in their evidence that there was torch light at the time of incident. Therefore, there is no question of misidentification. Moreover, appellant was residing adjacent to the house of deceased. Therefore, it cannot be said that they did not identify the appellant specifically.
28. Prosecution has proved beyond reasonable doubt that due to dispute between the appellant and deceased on account of agriculture land of Warlu situated at Village Kurli, there was enmity between them. Appellant was claiming his right in the land of Warlu situated at Village Kurli and therefore, there was motive on the part of appellant to commit murder of deceased.
29. There is no dispute that deceased was cultivating the land of Warlu at Kurli. As per the evidence of P.W. 1 and P.W. 6, due to threatening and beating by appellant to the deceased, deceased started residing with his parents at Village Khandala. Evidence of eye witnesses namely, P. W. 6 Anil Todase and P.W. 2 Sangita Kongare clearly show that appellant came with an intention to kill deceased. Appellant was having a big knife (sura). Appellant himself started quarrel, caught hold the collar of deceased and stabbed knife in his stomach. The dimension of injury to the stomach matched with the weapon. At the time of stabbing, appellant also sustained injury of knife on his right thumb.
30. Nothing is brought on record in the cross-examination of the material witnesses to disbelieve their testimony. The oral evidence is well supported by medical evidence and C.A. reports. The prosecution has proved the guilt of accused beyond reasonable doubt. Learned trial Court rightly convicted appellant for the offence punishable under Section 302 of the Indian Penal Code. There is no infirmity or illegality in the impugned judgment. Hence, we pass the following order.
ORDER
(i) The appeal is dismissed.
(ii) R & P be sent back to the trial Court.
(iii) Fees of the learned counsel Shri D. A. Sonwane appointed
by the Legal Services Authority is quantified at Rs. 5,000/-.
