Ganesh Nagnath Boinwad and Ors. Vs the State of… — Murder and Culpable Homicide | Bombay HC (2012)

Ganesh Nagnath Boinwad and Ors. Vs the State of… — Murder and Culpable Homicide | Bombay HC (2012)

cria358.10

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.358 OF 2010

1) Datta s/o Kanba Boinwad, Age-37 years, Occu:Agri.,

2) Nagnath s/o Kanba Boinwad,
 Age-52 years, Occu:Labour,
All R/o- Pimpalgaon, Tq-Hadgaon,
District-Nanded.
...APPELLANTS.
 VERSUS

The State of Maharashtra,

...RESPONDENT.

 ...
 Shri.Satej S. Jadhav Advocate for Appellants.
 Shri.S.D. Kaldate, A.P.P. for Respondent.
 ...

WITH

cria358.10

CRIMINAL APPEAL NO.187 OF 2012

Ganesh Nagnath Boinwad,
Age-27 years, Occu:Driver,
R/o-Pimpalgaon, Tq-Hadgaon,
District-Nanded.

...APPELLANT.

 VERSUS

The State of Maharashtra,

...RESPONDENT.

...

 Shri.Joydeep Chatterji Advocate for Appellant.
 Shri.S.D. Kaldate, A.P.P. for Respondent.

...

CORAM: NARESH H. PATIL AND
 T.V. NALAWADE, JJ.

 DATE : 16TH MARCH, 2012.

JUDGMENT [PER NARESH H. PATIL, J.] :

1.Original accused Nos. 1 to 3, namely,

Ganesh s/o Nagnath Boinwad, Datta s/o Kanba

Boinwad and Nagnath s/o Kanba Boinwad were charged

along-with other accused persons, on 2nd April,

cria358.10

2009 in Sessions Case No.118 of 2008. By Judgment
and order dated 14th May, 2010 passed by the
Additional Sessions Judge, Nanded, all these three
Appellants were convicted for an offence
punishable under Section 302 read with Section 34
of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for life and to pay a fine
of Rs.1,000/- each, and in default further R.I.
for six months each. Rest of the original accused
persons, who were charged along-with these three
Appellants, were acquitted. Criminal Appeal No.187
of 2012 is separately preferred by Appellant -
Ganesh Nagnath Boinwad and Criminal Appeal No.358
of 2010 is preferred by remaining two Appellants,
namely, Datta s/o Kanba Boinwad and Nagnath s/o
Kanba Boinwad. Both the Criminal Appeals are being
disposed of by this common Judgment and Order.

2.In all, 14 persons were charged for

committing murder of deceased Ramkishan Jalba
Jadhav, on 14th April, 2008.

cria358.10

3.The prosecution case, as narrated by the

eye witnesses to the incident, before the Court,
reveals that three days prior to the incident, the
deceased was sleeping outside the house on a cot.

Accused Ganesh Nagnath Boinwad was riding his
motorcycle, which struck the cot on which the
deceased was sleeping. On that count, there was
exchange of hot words in between the deceased and

accused Ganesh. On 14th April, 2008, in the
morning hours, at about 7.00 to 7.15 a.m., accused
No.1 - Ganesh Nagnath Boinwad, accused No.2 -

Datta Kanba Boinwad and accused No.3 - Nagnath
Kanba Boinwad, armed with sticks, came to the
house of the deceased. The sticks are referred as

"Badga". The Appellants came in front of the house
of the deceased. They started shouting. They
challenged the deceased, saying that "Ramkishan
come out of the house, and let us see who has how

much strength." They started giving abuses. Wife
and daughter of the deceased were standing at the

cria358.10

door-steps of the house. They tried to prohibit

the accused persons and even the deceased from

coming out of the house. The brother of the
deceased intervened and told the accused, not to
quarrel as there was marriage ceremony in his
house. The Appellants went back saying that they
will see them later on. Thereafter at about 9.00
to 9.30 a.m. the deceased went to Bhokar and came
back at about 4.00 to 4.30 p.m. At about 7.00 to
7.15 p.m., the Appellants - Ganesh Nagnath
Boinwad, Nagnath Kanba Boinwad and Datta Kanba
Boinwad, again came to the house of the deceased.

They were having "Badga" (sticks) in their hands
and they challenged the deceased Ramkishan to come
out of his house, as they wanted to finalize the
matter. The deceased was taking food in the house.
The relatives of the deceased were standing at the
door-steps of the house. The deceased came out of
the house.

4.At this time, the prosecution case

cria358.10

suggest that Appellant Ganesh Nagnath Boinwad
caught hold the deceased and gave a blow with a
knife to right side of the back portion of the
body of the deceased. The blow was so forceful
that deceased started screaming. Hearing the
screams, his son rushed towards the deceased. He
was obstructed by other accused persons. Deceased
fell down. The accused persons thereafter ran
away. The deceased was tried to be given water,
but he was not in a position to drink the water.
In auto rickshaw, the deceased was taken to the
hospital at Bhokar, by his cousin brother. Doctor
examined and opined that Ramkishan was dead. Phone
call was made to Tamsa Police Station. P.S.I. came
to the hospital after about one to one and half
hours. He recorded the statements of the relatives
of the deceased. Statement of PW-2 Ravaji Jadhav
was recorded (Exhibit 39). Post-mortem of the dead
body was conducted. Funeral was performed.
Thereafter the police started investigation, they
recorded statements of the witnesses. Police drew

cria358.10

panchnamas, conducted the investigation and after
completing the investigation, filed charge-sheet
against 14 persons.

5.The Appellants denied the charges and
came to be tried.

6.The prosecution evidence is based on the
eye witness account. We will deal with the
evidence of the eye witnesses.

7.PW-1 is Panditrao Bhale. He is a panch of

the spot of incident. The police seized some
articles on the spot, blood with soil, blood
stains on the wall. Signature of this witness was

obtained on the spot panchnama. This witness has

given location of house of the deceased. He has
identified the articles which were lying on the
spot.

8.PW-2 Ravaji Ramkishan Jadhav is an eye

cria358.10

witness, who is son of deceased. He has narrated
the incident before the Court. He has blamed the
Appellants for causing injuries to the deceased.
He has specifically attributed the assault by
Appellant Ganesh, with the help of knife. He
deposed that other two accused persons were also
having sticks in their hands and they assaulted
the deceased, according to the witness. These
accused persons had come to the house of the
deceased and had challenged him to come out of the

house. The witness tried to intervene but the
accused persons assaulted the deceased, due to
which, deceased succumbed to the injuries suffered
by him.

9.In the cross-examination this witness

PW-2 deposed that he is from Mali community. He

was asked as to whether his mother slapped Ganesh
at about 6.00 a.m. on the day of incident, to
which he claimed ignorance. His statement under
Section 164 of the Code of Criminal Procedure was

cria358.10

recorded. Contradiction is brought on record in
the evidence of this witness in respect of
statement that his father was taking meal at about
7.00 p.m. in his house. He admitted before the
Court that there were cases pending against the
deceased under Prohibition Act, which were lodged
between the period from the year 1987 to 2008.
Prior to the incident, there were 2-3 cases lodged
against his father. Case was registered against
the witness, bearing RCC No.55 of 1999. P.S.I.
Birla once had seized illicit liquor which was
being carried out in auto rickshaw of the family
of the deceased. It was suggested that accused
Datta was member of Tanta Mukti Samiti of the
village. The witness further deposed that there
were blood stains on the clothes of Appellant -
Datta (due to the injuries suffered by the father
of the witness).

10.Para 12 of the deposition of this witness

reads as under:

cria358.10

"12. It did not happen that

the blow received by my father

had not kept the knife struck
into his back after receiving

the blow, the knife was removed
back. My father had fallen down

after receiving a blow with a
knife. It did happen that my
father sustained a fist blow
across his face and thereby
sustained a bleeding injury and
thereby had fallen down in
front of our house. My father
had fallen down, 5 minutes

after receiving the blow with a
knife. It is not correct to say

that, Ganesh never inflicted a

blow with a knife on the back

of my father. My father was
being assaulted with Badga and

cria358.10

sticks on his back, legs, head.

Myfatherhadsustained

contusion on his head, back and
legs. Badga means a wooden log.
My father had sustained injury

in the size of Badga. The
incident was going on for about
five minutes. The persons from
my house had not made efforts
to intervene in the incident."

11.In the evidence of this witness, omission

is brought on record in respect of availability of
electricity supply at the relevant time.

12.PW-3 is Kanopatra w/o Bandu Raut. She is
daughter of deceased Ramkishan Jalba Jadhav. She
also narrates the same events in respect of the
incident in question. She blamed the accused

persons for assaulting her father and attributed
specific role to Appellant Ganesh, who caught hold

cria358.10

of her father and thereafter gave blow with a
knife on the back of her father. Due to the blow
given to her father, he sustained bleeding
injuries. Other accused persons also assaulted the
deceased with "Badga" (sticks).

13.In the cross-examination, the witness

deposed that Gajanan is living separately from her
father. Her father had lodged complaint about the
incident occurred on previous night wherein he
stated that accused Ganesh gave dash to the cot
of deceased, by motorcycle. The witness is not
aware whether the complaint was lodged in the
police station regarding the threats given to her
father. She further deposed that her father was
repeatedly assaulted with sticks but she could not
see whether there were injury marks of the sticks
on the person of her father, neither she could see

the parts of the body of her father on which
assault by sticks was visible. The witness stated
that barring the said incident, their relations

cria358.10

with Ganesh and other accused were not strained.
Suggestion was given to this witness that while
PW-2 Ravaji was assaulting accused Datta, accused
Ganesh sustained injuries to his left hand. The
witness claims ignorance in respect of injury
caused to palm of Ganesh, during the said
incident. Para 11 of the deposition of this
witness reads as under:

"11. Prior to the episode of
motorcycle,therewasno
complaint against each other,

and our relations were cordial.
The alleged incident took place
abruptly and unexpectedly. In
the alleged incident my father
had sustained bleeding injuries
to right side on his back. He
lost blood sufficiently. My

father had fallen down due to
the injury and blood was oozing

cria358.10

out from the wound. I have not

seen as to whether Ganesh had
sustained injury to his left
hand and blood was oozing out
from the said wound. It is not
correct to say that, I am
purposed hiding this fact by my
such answers."

14.PW-4 Sadashiv Jalba Jadhav is brother of

deceased Ramkishan. He too is eye witness to the
incident. He blames Ganesh for giving blow with

knife on the back of the deceased, due to which
deceased died. The other two accused/ Appellants
assaulted deceased with sticks. The witness stated
that all the accused persons beat his brother with
sticks. He deposed before the Court that incident

was going on for 5 to 10 minutes. He had seen the
hands of Ganesh but could not see that Ganesh had
sustained injury to his left palm.

cria358.10

15.PW-5 is Gajanan Sadashiv Jadhav. Deceased
Ramkishan was his uncle. He too supported the
prosecution case and attributed the assault with
knife to Ganesh. He stated that other accused
persons assaulted the deceased with sticks,
including the acquitted accused persons.

16.The defence submits that this witness had
not seen the incident. He was doing job for
fifteen years in Mumbai. He had come to the
village after the incident took place, therefore

his evidence cannot be relied upon as eye witness.

17.PW-6 is Savitrabai w/o Rajeshwar Jomde.
She is daughter of deceased Ramkishan. She had
come to Pimpalgaon at about 5.00 p.m. for the

purpose of marriage ceremony of her cousin
brother. She has witnessed the incident of assault

with knife by Ganesh, on her father. She is eye

witness to the incident. She also supports the
prosecution case and narrates the incident in the

cria358.10

same manner in which the earlier prosecution
witnesses have narrated.

18.PW-7 is Achyut Sonbarao Bhale, who is

declared hostile by the prosecution. PW-8 Eknath
Gangadharrao is a panch of seizure of clothes.

19.PW-9 Vijay Pantoji was police head

constable, attached to Tamsa police station. He
took the dead body for the purpose of post mortem.

He drew seizure panchnama of the clothes of the
deceased, Exhibit 66. He identified the Articles
20, 21 and 22 before the Court.

20.PW-10 is Hamja Bangisab. He is declared

hostile by the prosecution. PW-11 Balu Karpe is
auto driver. He was panch in respect of recovery
of sticks at the instane of the acquitted accused
persons.

21.PW-12 is Dr. Hiraji Munjaji Alane. He

cria358.10

conducted post mortem on the dead body of
Ramkishan during the period between 5.15 p.m. to
6.15 p.m., on 15th April, 2008. In column No.17
of the post mortem report, the witness described
the injuries as under:

"Penetrated wound one and half

X 1/2 X two and half inch on
back side at 8th and 9th rib,
costal space medial to inferior
angle of right scapula, within
24 hours by sharp weapon.
Brownish red blood oozing from
wound."

22.The doctor described the injuries in Para
4 of the evidence as under:

"Ribs- Back side 8th rib costal
region teared.
Lungs- Both lungs collapsed.

Heart- Right and left ventricle
empty and the heart muscles

cria358.10

contracted.

Inferior vena cava punctured due
to stab injury by back side."

23.According to the medical officer, the

said injury was sufficient to cause death. The
medical officer further deposed that there was no
fracture of the ribs of the deceased. Said injury
cannot be inflicted by standing opposite to each
other. The medical officer opined that deceased
died due to "punctured wound to inferior vena
cava."

24.PW-13 is Anup Wankhede. He was Junior
Engineer. He was examined in respect of

availability of electricity supply at the time of
incident. He stated that there was load shedding

at Pimpalgaon from 3.00 p.m. to 7.00 p.m. and
electricity supply was available from 7.01 p.m.
onwards.

cria358.10

25.PW-14 is A.S.I. Baliram Wagatkar and

PW-15 is Sunil Birla, the investigating officer.

26.Shri. Joydeep Chatterji, learned counsel
appearing for Appellant Ganesh Nagnath Boinwad, in
Criminal Appeal No.187 of 2012, submitted that
injury suffered by Ganesh to his palm, has not
been mentioned by the prosecution witnesses,
neither the prosecution has come out with any
explanation in respect of the said injury. All the

eye witnesses are highly interested and closely
related to the deceased. The prosecution is
suppressing genesis of the case, which should be
considered as an adverse circumstance against the
prosecution. The deceased died due to single

injury, which was not on the vital part i.e. right
portion of the back of the deceased. The incident

took place in a sudden heat of exchange of words,

hurling of abuses and quarrel. The incident was

not premeditated or preplanned. In case the
prosecution case is assumed to be true, the

cria358.10

Appellant Ganesh cannot be convicted for an
offence punishable under Section 302 of the Indian
Penal Code. There was no motive for the Appellant
Ganesh to commit murder of the deceased.

27.Shri. Satej Jadhav, learned counsel

appearing on behalf of the Appellants - Datta
Kanba Boinwad and Nagnath Kanba Boinwad, in
Criminal Appeal No.358 of 2010, submitted that no

specific overt-acts are attributed to the
Appellants. They are said to have used sticks
while assaulting the deceased, but if the medical

evidence is considered, it reveals that the
deceased did not suffer single injury of sticks.
Reference to 'hemorrhagic spot' mentioned by the
medical officer, does not show any corresponding
injury on the person of the deceased. There was no

injury of stick or any other injury on the person
of the deceased except the injury of knife. In

view of the availability of the medical evidence,
the evidence of the eye witnesses has to be

cria358.10

disbelieved. The prosecution has failed to
establish its case for convicting the Appellants
for the offence punishable under Section 302 of
the Indian Penal Code. The learned counsel further
submitted that on the same set of allegations and
the evidence, other accused persons, who had
allegedly used sticks in the assault, were
acquitted by the trial Court. By applying the
principles of 'parity', the Appellants too deserve
the same treatment. The prosecution witnesses are
exaggerating the role attributed to the
Appellants. The evidence of defence witness, has
not been taken into consideration by the trial
Court. The accused have made out a probable case.
In absence of any explanation to the injuries

caused to the accused, adverse inference is
required to be drawn. Injury caused to the
accused, was not self inflicted injury. The said
injury suffered by the accused, must have been

caused during the scuffle. The injury suffered by
the accused was incise wound, therefore, the

cria358.10

prosecution should be called upon to explain the
same.

28.In support of their submissions, the
learned counsel appearing for the Appellants,
placed reliance on the following reported
Judgments:

(1) Lakshmi Singh and others
vs. State of Bihar, A.I.R. 1976
S.C., 2263(1),

(2) Ramesh Krishna Madhusudan
Nayar vs. State of Maharashtra,
2008 A.I.R. S.C.W., 370,

(3) Golla Yelugu Govindu vs.
State of A.P., 2008 A.I.R.
S.C.W., 2541,

(4) A. Maharaju vs. State of
Tamil Nadu, 2008 A.I.R. S.C.W.,
7580.

cria358.10

29.The learned A.P.P. has placed reliance on

the Judgment reported in the case of Virsa Singh

vs. State of Punjab, A.I.R. 1958 S.C., 405 (V 45 C
71).

30.We have perused the original record,

evidence of the witnesses, findings reached by the
trial Court and the reported Judgments cited
before us.

31.From the medical evidence and the

narration of the eye witnesses, we find that the
deceased died due to single injury inflicted by

knife, on the right portion of back of the

deceased. He collapsed and succumbed to the
injuries. The eye witnesses have given an account
of the incident, near-about in similar manner. In

substance, the allegation is that on the day of
incident, in the morning hours the accused had
come to the house of the deceased. There exchanged

abuses. They went back and thereafter they came

cria358.10

back in the evening. They challenged Ramkishan to
come out. His family members were there. There was
marriage ceremony in the family. The relatives of

the deceased tried to avoid the incident but
unfortunately the deceased came out. No sooner the
deceased came out of the house, hot exchanges of
words and abuses took place between them and it is
suggested that accused Ganesh pressed neck of the
deceased and pushed the deceased towards wall and
assaulted with knife, with which he was armed, on
the right portion of the back of the deceased.

32.Though the prosecution witnesses stated

that other Appellants assaulted the deceased with
the help of "Badga" (sticks), but from the medical

evidence, nothing of that sort is noticed on the
person of the deceased. No injuries are noticed on
the person of the deceased, which could be caused
by the sticks. Considering the prosecution

evidence in respect of role attributed to other
two accused persons, who, according to them, used

cria358.10

sticks in the assault, we do find that the
evidence does not inspire confidence.

33.After scrutinizing the evidence of the
medical officer, post mortem report, we are
convinced to observe that deceased suffered one
injury i.e. injury by knife which was inflicted by

the accused Ganesh Nagnath Boinwad. We are not
convinced to accept the prosecution theory that
other accused persons had preplanned assault on
the deceased along with Ganesh, to commit his
murder or to cause such bodily injuries, which

would ultimately result in death of the deceased.
The motive is not that strong enough, to accept
the prosecution case that the Appellants had

intended to commit the alleged act. From the
evidence on record, we do not find that the
Appellant Ganesh intended to commit murder of
deceased. We have scanned the material in respect

of human anatomy to ascertain the location of
"inferior vena cava", which vein goes to the heart

cria358.10

from the space below liver. Due to this injury,
which was in between 8th ribs costal region, both
the lungs got affected and collapsed. The Defence
Witness No.1 Dr. Gopikrishna Potaji has stated

that he examined accused Ganesh. The witness
examined him on 15th April, 2008. The witness was
attached to Primary Health Center Tamsa. He
noticed incise wound over palmer surface of left
hand of size "4 c.m. X 0.5 c.m. X 0.5 c.m."

34.The police recovered knife at the
instance of the accused Ganesh. C.A. Report is
also on record. From the said material, the oral
testimony of the witnesses and the evidence of the
medical officer, the prosecution case cannot be
discarded that Appellant Ganesh along with other
Appellants, had gone to the house of the deceased,

challenged him to come out and when he came out,
assaulted him in front of the eye witnesses. But

the question is, whether the other two Appellants,
namely, Datta Kanba Boinwad and Nagnath Kanba

cria358.10

Boinwad, Appellants in Criminal Appeal No.358 of
2010, had intended to commit the offence along
with the Appellant - Ganesh, and in furtherance of
the same, assaulted the deceased with sticks, as
narrated by the prosecution witnesses. On this

point, we find that prosecution witnesses have
exaggerated the role attributed to the other two
Appellants than Ganesh. The medical evidence goes
contrary to the evidence of the eye witnesses, in

respect of the role attributed to the other two
Appellants, namely, Datta Kanba Boinwad and
Nagnath Kanba Boinwad. We are therefore, not
convinced to hold them guilty for the offences for
which they were charged. It is noticeable to
observe that on the same set of allegations and
circumstances, other accused persons were
acquitted by the trial Court. We do not find any
substantial reason not to grant same benefit to
these two Appellants, namely, Datta Kanba Boinwad

and Nagnath Kanba Boinwad. There is lack of
evidence to sustain the order of conviction passed

cria358.10

against these two Appellants, namely, Datta Kanba
Boinwad and Nagnath Kanba Boinwad.

35.The next question is, as to what offence
Appellant Ganesh Nagnath Boinwad (Appellant in
Criminal Appeal No.187 of 2012) has committed.
After considering the evidence on record, we do
find that in the facts of the case, accused Ganesh
never intended to commit murder of deceased
Ramkishan. But the fact remains that he was armed
with a knife and he assaulted the deceased on the
non-vital part of the body, i.e. back of the
deceased. It was a single blow. Unfortunately it
touched vital veins, the lungs of the deceased
collapsed and due to which he died. The accused
Ganesh ought to have known the consequences of
inflicting a stab injury on the person of the
deceased.

36.We have taken into consideration the past

conduct and relations between these parties. We do

cria358.10

not find that there was any serious enmity for

Ganesh to commit murder of deceased Ramkishan.
Taking into consideration the evidence on record
in its entirety, we are convinced to hold that
Appellant Ganesh cannot be convicted and sentenced
for an offence punishable under Section 302 of the
Indian Penal Code. His conviction and sentence
needs to be altered, for an offence punishable
under Section 304 Part II of the Indian Penal
Code. Learned counsel Shri. Joydeep Chatterji had
also argued for altering this sentence, in case
the Court does not uphold the submissions of the
defence to acquit the accused person Ganesh. We
are in agreement with the learned counsel Shri.
Joydeep Chatterji in respect of acceptance of
altering the conviction and sentence of the
Appellant Ganesh, from the offence punishable
under Section 302 of the Indian Penal Code, to the
offence punishable under Section 304 Part II of
the Indian Penal Code.

cria358.10

37.Hence we pass following order in Criminal
Appeal No.358 of 2010:

O R D E R

.The Appeal of appellants

Datta Kanba Boinwad and Nagnath
Kanba Boinwad is allowed.

.The Judgment and order of
AdditionalSessionsJudge,

Nanded delivered in Sessions
Case No.118/2008 convicting and
sentencing these two appellants

for offence punishable under

Section 302 r.w. 34 of I.P.C.
is hereby quashed and set
aside. Both the appellants are
acquitted of this offence. They

are to be released forthwith.

cria358.10

deposited by appellants, is to
be refunded to them.

38.We pass following order in Criminal
Appeal No.187 of 2012:

O R D E R

.The Appeal is partly
allowed.

.The Judgment and order of
AdditionalSessionsJudge,

Nanded delivered in Sessions
Case No.118/2008 convicting and
sentenced the appellant for
offencepunishableunder
Section 302 r.w. 34 of I.P.C.

is hereby set aside and the
appellant is acquitted of the

cria358.10

offencepunishableunder
Section 302 r.w. 34 of I.P.C.

His conviction is altered to
the offence punishable under
Section 304 Part II of the
I.P.C. and the appellant is
sentenced to suffer Rigorous
imprisonment of 7 years and he
is also sentenced to pay fine
of Rs.20,000/- (Rupees Twenty

Thousand). In default of
payment of fine, he is to
furtherundergoRigorous

imprisonment for one year.

.If the fine amount is
deposited, the amount is to be
paid to the widow of deceased
as compensation under Section
357 of Criminal Procedure Code.
If the widow is not alive, then

cria358.10

the compensation is to be
equally distributed to next of
the kin of the deceased.

.Appellant is entitled to
set-off in the substantive
sentence of imprisonment in
respect of period already
undergone.

[T.V. NALAWADE, J.] [NARESH H. PATIL, J.]

asb/MAR12