Dismissed

Popat Anna Nil v. the State of Maharashtra

Bombay HC18 Oct 2004APEAL/934/1988

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a conviction for murder under Section 302 IPC. Upholding the lower court's finding, the Court held that F.I.R. delay was insubstantial and the prosecution evidence was credible and corroborated.

What did the court decide?

Appeal dismissed; Appellant granted eight weeks to surrender.

What the court decided

Popat Anna Nil Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2004)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.934 OF 1988

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Popat Anna Neel

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Vishwambhar Anna Neel

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Ankush Ananta Neel

...Appellants

Vs.

State of Maharashtra

...Respondent

Mr.T.E.Mane for Appellants. Mr.D.S.Mhaispurkar A.P.P.

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CORAM: SMT.RANJANA DESAI & A.S.OKA,JJ. DATE : OCTOBER 18, 2004.

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ORAL JUDGMENT : (PER ABHAY S.OKA,J.)

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By this Appeal the accused No.1 has taken exception to the Judgment and Order dated 14th October 1988 passed by the learned Additional Sessions Judge, Solapur. By the impugned Judgment and Order the Appellant was held guilty of commission of offence punishable under Section 302 of Indian Penal Code and was sentenced to suffer imprisonment for life. The case of the prosecution is that the Appellant along with three other accused on 10th July 1985 at about 8.00 a.m. in the field bearing Gat No.160 of village Nimgaon, Taluka Karmala District Solapur in furtherance of their common intention committed murder by intentionally or knowingly causing death of one Atmaram Santu Neel and thereby committed

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offence		punis	hable under Sect	io	n 30	2	read	with Secti	on	34 of
Indian	Pen	al	Code. The c	a	se of	the	pr	osecution is	that	the
land	of	th	e Appellant-accused		No.1	was	ad	jacent to	the	land
of t	he	dec	eased. There i	s	a ‘	Bandh’	in	between	the	two
lands.		Th	ere was a dis	p	ute be	tween	the	accused	and	deceased
Atmaram	o	ver	the said ‘Bandh	’.	A	s a	re	sult of wh	ich	before
the	date		of incident ther	e	were		quarrel	s between	the	parties
on	2 to		3 occasions. On		the	date	of	incident, th	e	deceased
went	to	his	field for ploug	h	ing ear	ly	in	the morning	.	When
his	wife	Go	dabai visited the		field		for	supplying	breakfa	st to
the	deceas	ed,	she saw the		accused	beat	ing	her husband.		The
Appellant	g	ave	a blow of		spade	over	the	left ear	of	the
deceased.		T	he said Godabai	w	ith a	view	to	make hue	and	cry
went	back		to the village	a	nd on	the	way	back she	met	the
Police	Patil	an	d she sought		help o	f	Police	Patil.	The	Police
Patil	and		other three perso	n	s wen	t to	wards	the land	and	on

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the way accused No.2 met them and stated that the deceased

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had expired.

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2.	The	learned	counsel	appearin	g f	or t	he Appellant	submitted
that th	ere	was a	gross	de	lay	in	recording the	First
Information	Re	port.	He	submitted		that	the conduc	t of
P.W.No.2	God	abai	was very	strange.		When	according to	the
said	Godabai	she	saw	the a	ccused	assaul	ting her	husband,
instead	of	making	attempt	to save	her	husb	and or instead	of
shouting,	she	went	back	to the	villa	ge.	He submitted	that
from	the	place of	inciden	t the	said	Goda	bai accompanied	the

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Police Patil in a bullock cart to village Salse and from village Salse they went by S.T.Bus to Karmala Police station. He submitted that the F.I.R. was registered two hours after they reached Karmala Police Station and therefore, it was obvious that after discussion it was decided to implicate the accused. He submitted that the said Godabai claims that she had brought breakfast to the field of the deceased. He stated that in the scene of offence panchanama nothing was found at the spot of the incident. He submitted that even the Police Patil had not made any entry of the incident in the form of ‘Khabri Report’. He submitted that there was a political rivalry in the two groups in the village. He submitted that the two groups were headed by Madhukar and P.W.No.3 Bhagwat. He stated that P.W.No.3 admitted that the Police Patil Digambar Namdeo Patil-P.W.No.7 belongs to group headed by P.W.No.3 Bhagwat. Accused No.2 Vishwambhar Anna Neel belongs to the rival group headed by one Madhukar and hence P.W.No.7-Digambar Namdeo Patil falsely implicated the accused persons. He submitted that the evidence of the prosecution witnesses was full of inconsistencies, contradictions and omissions. He submitted that according to the prosecution the clothes of the deceased were found below his head. He submitted that it was most unlikely that the accused after killing the deceased kept the clothes below his head. He submitted that there are serious infirmities in the prosecution case and in any event the guilt of the accused is not established beyond reasonable doubt. He, therefore,

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submitted that the conviction and the sentence passed against

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the Appellant deserves to be quashed and set aside.

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3.	T	h	e learned	A.P.	P.	appear	ing fo	r the	State	submitted
that	t	h	e evidence	of	P.	W.No.2	Goda	bai	itself establishes	the
guilt	of		the accus	ed	beyond	reaso	nable	doubt.	He	submitted
that	there		is ha	rdly	any	delay	in	record	ing F.I.R.	He
pointed	out		that P.W	.No.2	Go	dabai	along	with	Police Patil	had
to tra	vel		upto village	S	alse	by	bullock	cart	and from	village
Salse	th	e	y had	to	take	S.T.Bus	for	reachi	ng Karmala	Police
Station.			He subm	itted	tha	t	after	re	aching the	police
station,			the F.I.R.		has	been	recorded	in	a reasonable	time.
He	subm	i	tted that	the	evide	nce o	f P.W	.No.2	has been	fully
corroborat	ed		by the	medical	e	vidence	on	record	. He	submitted

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that the guilt of the Appellant has been established beyond

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reasonable doubt.

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4. We	have	considered	the rival	submis	sions.	Ther	e is
hardly any	dispute	regarding	homicidal	death	of	the	deceased.
P.W.No.1	Rajendra	Vishwanath	Lonikar	was	the	Medical	Officer
in the	Municipal	Hospital	at Kar	mala w	ho	performed	the
post-mortem	of the	body of	deceased	Atmaram.		He found	the

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following external injuries on the body of deceased Atmaram :

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1.C.L.W.over uppe occipital scalp 1" x 1/2" 2.C.L.W. 1 x 1 x 1 1/2" to the left and lower side of injury No.1.

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part.

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Swelling over left zygoma 1" in diametre. Abrasion of red colour over right renal anagle, 3" x 2". He stated that injury Nos.1 to 4 might have been caused by sharp object and injury Nos. 5 and 6 by blunt object. The

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internal injuries found by the said Medical Officer are as

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under :

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iii)The coverings were torn at the fracture line. The brain was semiliquid. The brain could be seen between the fracture line. iv) There was a fracture of skull through and through the petrous bone.

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				v)	Ham	etoma	in the	thorasic	region	and		fracture
		of	left	10th		rib	at	the	anterio	r	co	verature.
				vi) The	plueu	ra was to	rn at the	fracture site	.
				vii)In	the	abdo	minal	region	cavity	cont	ains	blood
		about					2					litres.
				viii)Th	e	right	kidny	was fr	actured	at	the	hilus,
		2		x			2		x			2".
He	deposed	th	at	the	injur	ies on	the	perso	n	of		deceased
Atmaram	are	possi	ble	with	an	assault	by	a	spade	like		Article.
He	stated	that	the	cause	of	death	of	accused	Atmara	m	wa	s due
to ne	uro H	aemarroh	age	shock	due	to	fractur	e of	skull.		I	n the
cross	examin	ation	he	stated		that	the	external	in	juries		No.3,4
and	5	could	be	possible	by	pelting	of	a stone.		He		stated

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that if a person having received a blow of stone falls on the

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ground injury No.1 and 2 are possible.

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5.	P.W.No.2	Godabai	stat	ed	in	her	evidence	that	the	deceased
was	possessing	about	22		acres	of	land	within	li	mits of
village	Nimgaon.	The	said		land	was	divided	in	three	parts at
three	different	places.			One of	the	three	portions	o	f the
land	was kno	wn as	‘Das’		which	was	at dista	nce of	2	furlongs
on	northern	side	of t	he	house	of	the	deceased	.	P.W.No.2
identified	all	the f	our	ac	cused	before	the	Court	and	stated

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that same		t	he village	accused and	were possessing ag the Appellant-accused	ricultu No.1	ral land was	in holding	the the
land	w	hic	h is	adjacent	to the land of	the	deceased	. The	land
of		the	decea	sed and	the land of t	he	Appellant	are s	eparated
by a			Bandh.	She	deposed that there	w	ere quarr	els between	the
deceased			and	the	accused over the	dispu	te about	the	Bandh.
She s	t	ated	that	on	the date of incid	ent	the dece	ased had	gone
to the			field fo	r ploug	hing. At about	7.30	a.m.	she left	her
house			for	providing	breakfast to the	dec	eased.	When	she
reached			the	field	of the deceased,	she	saw	the	accused
assaulting			her	husban	d. She saw a	ccused	No.2	was	making
Atmaram			fall o	n the	ground and accused	Nos.	3	and 4	giving
kick	b	low	s to	Atmara	m and Appellant-acc	used	No.1	was givin	g a
blow	o	f	spade	over t	he left ear. O	n s	eeing he	r husband	being
assaulted			she	returned	to the village	for	making	hue and	cry
for		ge	tting he	lp.	When she reached	near	the tem	ple she	met
Police			Patil	Digambar	Namdeo Patil		(P.W.No.7.)	and	she
informed			the P	.W.No.7	about the incid	ent.	P.	W.No.7, P.	W.No.2
along		w	ith	three	other persons who	were	near	the	temple
proceeded			toward	s t	he said land. O	n t	he way,	accused	No.2
met t	h	e	Police	Patil.	She stated that	sh	e could	not hear	the
talk	w	hic	h took	place	between the acc	used	No.2	and the	Police
Patil.			When	she	asked the accused n	o.2	why the	accused	had
assaulted			her	husband	, accused No.2	stated	that	her	husband
was		de	ad.	When	they reached the	field	they fo	und that	her
husband			Atmaram	was	already dead.		There	was	bleeding
injuries			through	nose	and mouth. Sh	e s	tated that	they sa	w a

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pick-axe	at		the	place	of incident. She stated	that	the
Police	Patil		instruc	ted the	Kotwal to remain pre	sent near	the
dead b	ody.		She	along	with Police Patil came t	o village	Salse
in	a b	ullo	ck	cart and	from village Salse they	took a	S.T.bus
and	reach	ed	the	police	station at Karmala where	P.S.I.	Shri
Kadam	record	ed	her	complaint.	P.S.I. came to	the village	at
5.00	p.m.	and	P.	W.No.2 sho	wed the place of inciden	t and	dead
body	to	th	e P.	S.I. She	stated that village Nimgao	n is at	a
distance	of		six	miles	from Salse and from	village	Salse,
Karmala	is		about	4 to	5 miles. In the cross	examination	she
stated	that		she	saw the	incident from a distance	of 10 to	15
feet.	She		stated	that she	did raise hue and cry.	She	stated
that	she	d	id n	ot interven	e in the quarrel. She	stated	that
the	assault		lasted	only for	5 to 10 minutes.	She denied	the
suggestion		tha	t	there	is a residential house	of	certain
persons	in		betw	een the	land of the deceased	and	village
Nimgaon.		It	is	pertinent	to note that	in the	cross
examinatio	n	o	f	P.W.No.2	no omissions have been	brought	on

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record. The evidence of P.W.No.2 is consistent with the

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F.I.R. at Exh.21.

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6.	P.W.No.3 Bhagwat	Gajaba	Nee	l is	a Pan	ch	Witness	who
supported	the prosecution.	He	is	a	Panch Wit	ness	to scen	e of
offence	panchnama. The	evid	ence	of	P.W.No.3	was	ch	allenged
in the	cross examination	by	givin	g	suggestions	to	the	witness
regarding	existence of	two	pol	itical	groups	in	the	village
and t	hat the witness	bel	ongs	to	the pol	itical	group	of

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Digambar Namdeo Patil-P.W.No.7. The said witness is also a

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witness to the scene of Panchnama.

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7.	P.W	.No.4	Mahadev	Namdeo Takale is a Panch Witne	ss	to the
recovery	of	spade	at the	instance of the Appellant.	T	he said
witness	turne	d hos	tile and	was permitted to be cross		examined
by	the	Public	Prosecuto	r. P.W.No.5 Arjun Ganpat	Jaga	dale is
also	Panc	h Wit	ness to	the recovery of spade at the		instance
of	the	Appellan	t. He	also turned hostile. P.W.No.6		Babaji
Pathangare		is	working	as agricultural assistant. He		stated
that	on	28th	June 19	95 he visited village Nimgaon	for	giving
work	to	the	labourers	in connection with Bunding work.		He
stated	that	on	that da	y the work of putting Tal in		between
the	field	of	Madhukar	Neel and deceased Atmaram was		carried
out.		He s	tated that	deceased Atmaram raised oral		objection
before	him	to	the work	of repairs of Bunding and Tal	in	his
land.		P.W.No.7	Digambar	is the Police Patil. The		evidence
of	Digam	bar is	consistent	with the evidence of P.W.No	.2.	He
stated	in	his	evidence	that he along with Godabai		reached
Karmala	at	ab	out 2.15	or 2.30 p.m. Thereaft	er,	P.S.I.
recorded		a com	plaint of	P.W.No.2 in his presence.	He	stated
that	at	about	5.30 p.	m. he returned to Nimgaon alo	ng	with
police	when	the	scene of	offence was shown by P.W.No.	2	to the
Police.	I	n the	cross	examination a suggestion was	giv	en that
he wa	s on	cros	s terms	with the Appellant-accused Nos.1		and 2.
He	denied	the	correctn	ess of the said suggestio	n.	An
omission		was	brought o	n record regarding the statement		made

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by	him	in examination-in-chief that accused No.2	told	him
that	accused	No.1 had assaulted deceased Atmaram	with	the
spade.	It	is specifically recorded by the learned	Judg	e that
an omission that he has n	was only r ot issued "	egarding the use of spade. He admitted Khabri report."
8.	P.W.No.	8 is Jyotiram Maruti Barade. He w	as	declared
hostile	and	therefore nothing turns on h	is	evidence.
P.W.No.9	is	Sudhir Wamanrao Kadam, P.S.I.	attache	d to
Karmala	Poli	ce Station. He deposed that Godabai,		P.W.No.7
Digambar	cam	e to the Police station at about 2.15	to	2.30
p.m.	and	he recorded a complaint made by P.W.	No.2.	He
stated	that	he thereafter immediately went to vill	age	Nimgaon
and	reached	the village at about 5.00 p.m. He	stated	that
scene	of	offence was shown to him by P.W.No.2.	He	deposed
about	the	recovery of spade at the instance of	the	Appellant
and	recovery	panchnama was proved in his evidence.	In	the
cross	examin	ation he denied the suggestion that		P.W.No.2
Godabai	and	her father came to the police station	and	after
consultation		P.W.No.2-Godabai’s complaint was recorded	.	The
omission	of	P.W.No.7 in the statement regarding use	of	spade
was	proved	by the P.W.No.9. P.W.No.10 is Gulab who	was	the
Police	Cons	table attached to Karmala Police Station	and	was

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examined to prove the dispatch of articles to the office of

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chemical analyser, Pune.

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9. there	In so far as P.W.No are no omission brought	.2 on	is concerned, as stated record in the her	earlier, evidence.
The	learned Counsel for the	Appel	lant made a grievance	that
though	it is the case of	the	P.W.No.2 that she	brought
breakfast	to the field, nothing	was	found at the scene	of
offence	panchnama. It is	perti	nent to note here	that
P.W.No.2	has not stated that	she	left the basket	containing
the b	reakfast near the scene o	f	offence. The learned	Counsel
for	the Appellant has made	det	ailed submission on delay	in
recording	the F.I.R. From	the	cross examination of	P.W.No.2
and	P.W.No.7 it is clear that	it	is not the case o	f the
Appellant	that after the inciden	t	P.W.No.2 and P.W.No.7	spent
any ti	me in the village.	The	total distance from	village
Nimgaon	to Karmala may be about	12	to 13 miles. The	P.W.No.2
and	P.W.No.7 had to travel	up	to village Salse	by a
bullockcar	t and from village		Salse they travelled	upto
Karmala	by S.T.Bus. The evid	ence	shows that they reach	ed the
police	station at about 2.3	0 p	.m. Nothing concre	te is
brought	on record to show	that	there was anybody else	also
accompan	ying them to police	statio	n. After recording	her
detailed	complaint, P.W.No.9 came	to	village Nimgaon at	about
5.00	p.m. Considering thes	e f	acts it is very clear	that
there	is a hardly any delay	on	the part of P.W.No	.2 in
reaching	the police station. If	th	e F.I.R. was not	recorded
in	the Police Station imm	ediatel	y, this by itself is	not
sufficient	to disbelieve the	pro	secution case. In	our
opinion,	this delay is ins	ignific	ant and cannot affect	the

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core	of	prosecution	case.	Fro	m the	fact	that	the	Police
Officer	visited	the sce	ne of	offence	by	5.00	p.m.	it	appears
that	the	complaint	was	recorded	in a	reas	onable	time	by
P.W.No.9.		When	P.W.No.	2 imm	ediately	started	for	Karmala	for
recording	co	mplaint	and	when	her	complaint	w	as	recorded
within	a	reasonable	time	after	she	re	ached	the	police
station,	it	is	difficult	to ac	cept the	subm	ission	of	the

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learned Counsel that there was an inordinate delay in

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recording the F.I.R.

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10.	P.W.No.2 ha	s clearly deposed	that	b	y a	spade	the
Appellant	gave a	blow over the l	eft ea	r	of	the	deceased
Atmaram.	There	is no reason to	disbel	ieve	the	version	of
P.W.No.2	who was	the eye witness.	Sin	ce	the P.	W.No.2	is the
wife	of the	deceased, we have	ca	refull	y s	crutinised	her
evidence.	As hel	d by the Supreme	Court	in	the	case of	Sucha
Singh	and another	Vs. State of	Punjab	rep	orted in	(2003)	7
SCC	page No.643,	relationship is not	a	fact	or to	affect	the
credibility	of wi	tness. There are	ha	rdly	any	dis	crepancies
and	contradictions	in her evi	dence.		Her	evidenc	e is
consistent	with the	F.I.R. recorded	on	the	same	day.	There
is	nothing in	the cross examination	of	P.W	.No.2	which	has
shaken	her evidence.	The medical	evide	nce	is	consistent	with
the	version of	P.W.No.2. The	extern	al	injuries	on	the
deceased	show tha	t the left ear o	f the		deceased	was	cut
obliquely	in lowe	r half part.	T	here	are	corr	esponding
internal	injuries	in the form of	fract	ure	of l	eft	temporal

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bone.		T	here		was al	so	fractur	e		o	f	skull	throu	gh	and	through
the		petrous	bon	e.		The	repo	rt			of	the	chem	ical	analyser	shows
that		the	cloth	es	worn	by	the		d	ec	ea	sed ha	d num	ber	of	blood
stains.		Th	e	e	arth	and	ston	es			co	llected	at	the	scene	of
offence		was	a	ls	o mixe	d	with	blo	o	d.		Th	e spade		was	stained
with	blo	od of	‘B	’	group.		The			bl	oo	d gro	up of	th	e Appel	lant is
‘A’	as	per	the		report	of	the			ch	em	ical	analyser.		The	chemical
Analyse	r’s		report		also	sho	ws	tha	t			there	were	blo	od stai	ns on
the		shirt	of	th	e App	ellant.		T	h	e		blood	group	o	f the	deceased
was	‘B’	and	the		blood	found	on		t	he		spade	was	of	‘B’group.	It
is		thus	clear		that	the	ot	her				evidence	on	re	cord co	rroborates

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the version of P.W.No.2. Thus, the prosecution has proved

¶68

that the Appellant has assaulted the deceased with spade.

¶69

11.	The	decease	d	had	fracture	of	the	skul	l t	hrough	and
through	the	petrous	bone.		As	per	the	opinion	of	the	Medical
Officer	injuries	on	the	pers	on of	the		deceased	on	the	vital
part	were suffi	cient	in	ordinar	y co	urse	to	cause	death	.	When
the	Appellant	u	sed	spade	for	assault	ing	the	deceased	it	is
obvious	that	his	inte	ntion	was	to		inflict	injuries		actually
suffered	by	the	victim.		The	said		injuries	are	sufficie	nt in
ordinary	course	of	na	ture	to	ca	use	death.		In	the

¶70

circumstances, the offence will be punishable under section

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302 of Indian Penal Code.

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We have also perused the various Judgments cited before us. The learned Counsel for the Appellant relied upon the

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judgment of the Apex Court reported in A.I.R.1979 S.C. page No.135 (Ganesh Bhavan Patel V. State of Maharashtra) and submitted that as held by the Apex Court as there was an inordinate delay in recording the F.I.R., it can be said that the prosecution story was conceived and constructed after consultation. We have already held that there was no

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inordinate delay in recording the F.I.R. Hence, the said

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decsion is of no help to the Appellant.

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13.	We ha	ve per	used the	impugned	Judg	ment and	Order.	We
find	that the		learned S	essions Jud	ge	has	considered	the
entire	evidence	on	record	and		after	considering	the
submissions	of	the	parties	an	d	after	appreciating	the
evidence,	a	finding	was	recorded	by	the	learned	Sessions
Judge	regarding	guilt	of the	Appellant.		There	is no	reason

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to disbelieve the finding recorded by the learned Sessions

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Judge.

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There is no merit in the Appeal. Hence, Appeal is

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dismissed.

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The Appellant is already on bail. Time of eight weeks

¶83

is granted to the Appellant to surrender.

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Certified copy is expedited.

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( SMT.RANJANA DESAI,J. )

¶86

( ABHAY S.OKA,J. )

Popat Anna Nil v. the State of Maharashtra

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Popat Anna Nil v. the State of Maharashtra

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