Criminal Appeal by appellant convicted of murder and intimidation. Court examined prosecution testimony, medical report, and discovery of weapon. Conviction and sentence upheld as appeal lacked merit.
Appellants conviction and sentence for offences under Sections 302 and 506 IPC are confirmed; appeal is dismissed.
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pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 491 OF 2007
Maruti Eknath Waghmare Age 70 years, Occ. Retired PI., Residing at Gunjegaon Shivar, Vasti at Gunjegaon, Tal. South Solapur At present in Yerwada Jail, Pune
..Appellant
(Org.Accd.)
Vs.
The State of Maharashtra & anr.
.. Respondents
Mr. Kuldeep S. Patil for appellant. Smt. U. V. Kejriwal, APP for State.
CORAM: P. V. HARDAS & REVATI MOHITE DERE, JJ.
JULY 25, 2013.
ORAL JUDGMENT [ Per P. V. Hardas,J.] :
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9/2/2007, in Sessions Case No. 335 of 2005, by this appeal questions the correctness of his conviction and sentence. The trial court directed that an amount of Rs.5000/- be paid to PW 2 – Sushila Bhimrao Chavan as compensation under Section 357 of Cr.P.C. from out of the fine amount recovered from the appellant.
PW 9 – PI Prakash Sawant, who, on 28/8/2005, was attached
to Police Station, Mohol, was informed by ASI Shelar from out-post Kamati about the murder of one Bhimram Chavan by the appellant. He was also informed that Bhimrao Chavan had died on the spot. Accordingly, an entry was recorded in the station diary at Sr. No.40. The said entry is at Exh. 53. PW 9 – PI Prakash Sawant immediately proceeded to the scene of the incident and on reaching the scene of the incident, noticed the dead body of deceased Bhimrao Chavan. The dead body was lying on a road going to Gunjegaon. An inquest panchanama was accordingly drawn in the presence of PW 5 – Sanjay and another panch at Exh. 37. State of PW 2 – Sushila was recorded at Exh. 27. On the basis of
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the statement of PW 2 -Sushila, an offence vide Crime No. 252 of 2005 was registered under Section 302 of IPC. Thereafter scene of the offence panchanama was drawn at Exh. 38 in the presence of PW 5 – Sanjay and another panch. The blood sample of the blood which was found at the scene of the offence was drawn and was seized under the panchanama at Exh.38. The dead body of deceased Bhimrao Chavan was referred for post mortem examination at the Rural Hospital, Mohol. The appellant was arrested on the same day, as he was found hiding in the sugarcane crop. On the next day i.e. on 29/8/2005, during the custodial interrogation, the appellant expressed his willingness to point out the place where he had concealed the gun. Accordingly, his memorandum was recorded at Exh. 55A in the presence of panchas. The appellant led the police and the panch to his house and from the rear side of the house, produced a gun which had been concealed beneath dry tur-sticks. The appellant had also produced some live cartridges, which, along with the gun, were seized under seizure memo at Exh. 55B. The investigation was thereafter handed over to PI Makdum. The seized property was referred for examination to the Chemical Analyzer at Pune under requisition at Exh. 56. Further to the completion of investigation, a charge-sheet against the appellant was submitted.
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court vide Exh. 2 framed charge against the appellant for offence punishable under Sections 302 and 506 of IPC. A charge was also framed against the appellant for offence punishable under Section 25 of the Indian Arms Act. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 9 witnesses. The appellant in his defence examined DW 1 – Shankar. The trial court, upon appreciation of the evidence of the prosecution, convicted and sentenced the appellant as aforestated, but acquitted him for offence punishable under Section 25 of the Indian Arms Act. The appellant being thug aggrieved has filed the present appeal.
PW 2 – Sushila, wife of deceased Bhimrao, states that her husband Bhimrao had been employed by the appellant and she along with
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her husband and her sons, Amol and Ramesh, was residing in the agricultural field of the appellant. She has admitted that her three daughters were married. She has also stated that the appellant was also residing in the same agricultural field in another room. Since her husband had worked in the agricultural field for one year, her husband had gone to village Sangola for the purpose of seeking new employment. At that time her sons were studying in Ashram School at Jamgaon. Her daughter PW 6 – Kavita had come to the house for attending the Panchami festival. Bhimrao Chavan had been away from home for nearly one and half months. During that period, the appellant was harassing PW 2 – Sushila. The appellant used to catch her hands and used to invite her to come for weeding. The appellant was harassing Sushila in the presence of her daughter – Kavita. Kavita, therefore, informed Bhimrao Chavan about the acts of the appellant. On the next day, her husband returned home and Sushila narrated the incident to Bhimrao. Bhimrao went to the accused in order to question him as to why he was harassing PW 2 – Sushila. Sushila states that she had also accompanied Bhimrao. The appellant did not say anything but asked Sushila, if she was going with her husband. The appellant threatened Sushila that he would kill Bhimrao, if she accompanied her husband Bhimrao. The appellant had also asked her that
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after death of Bhimrao, whether Sushila would continue the sexual relations with the appellant. Sushila states that thereafter she and her husband were returning back. They were accompanied by one Ramesh and PW 6 – Kavita. When they had reached near a hotel, the appellant came there from behind and told Sushila not to go with her husband. The appellant also stated that if Sushila went with her husband, he would kill Bhimrao. The appellant suddenly fired a bullet from his gun at Bhimrao causing injury to him. Bhimrao fell on the ground and died on the spot. Sushila cried aloud for help and on hearing her cries, the persons who were near the hotel rushed towards the scene of the incident. One Datta Pawar telephonically informed the Police Station, Mohol. The police reached the scene of the incident at about 4 p.m. and recorded the statement of Sushila at Exh. 27.
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disclosed the fact that the appellant was insisting that Sushila should maintain sexual relations with him. Sushila has admitted that she has given birth to a daughter from her first husband. She has also admitted that her first husband had deserted her. She has also admitted that her first husband is alive. She has denied the suggestion that she was not present at the time of the incident. She has also denied the suggestion that in order to avoid repayment of the money, advanced by the appellant, she was deposing falsely against him.
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which would in any manner affect their credibility. Both the witnesses are
natural witnesses and we find that no dent is made in their evidence by the cross-examination. We find that implicit reliance can be placed on the testimony of both these witnesses.
had performed the post mortem examination on the dead body of Bhimrao. PW 4 – Dr. Jayashri had noticed the following external injuries:
(ii) Contusion over right parieto temporal region, of scalp, measuring 10 cm. x 8 cm.
(iii) Entry wound is circular with inverted margin measuring 1.2 cm. x 1 cm x scalp deep over right parietal region of scalp.
(iv) Exit wound present over right occipital region of scalp circular in shape with inverted margin, 0.5 cm. x 0.5 cm. x 0.5 cm.
(v) Wound present over left parietal region of scalp circular
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in shape with inverted margine 0.5 cm. x 0.5 cm. x scalp deep.
On internal examination she noticed the following injuries.
(i) Haemotoma under scalp over right parieto temporal region about 10 cm. x 8 c.m.
(ii) Haemotoma under scalp over left parietal region about 6 cm. x 5 cm.
(iii) Haemotoma under scalp over right occipital region 5 cm. x 4 cm.
(iv) Fracture of right parietal, fracture left parietal, fracture of right occipital.
On internal examination of brain, she noticed that,
(i) Subdural haemotoma right parieto temporal region of scalp.
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She has, therefore, opined that deceased Bhimrao had died due
to shock due to injuries to vital organ like brain due to bullet injuries. Though PW 4 - Jayashri has been cross-examined, nothing of substance has been elicited in the cross-examination.
who was working in the Forensic Science Laboratory, Bombay as Assistant Chemical Analyzer and Ballistic Expert. She had examined the gun and the bullets and has opined that the gun which was seized at the behest of the accused was in a working condition. She had also noticed the barrel washings and had come to the conclusion that the gun had been recently fired. The report of PW 8 – Hemantini Deshpande is at Exh. 47.
before us that PW 2 – Sushila and PW 6 – Kavita had a reason for falsely implicating the accused and, therefore, it is extremely doubtful if these two
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witnesses had seen the incident. The learned counsel for the appellant has
further urged before us that the situation of the entry and the exit wounds is extremely suspicious and it is doubtful if the entry and the exit wounds are caused by gun shot. The learned APP has supported the findings arrived at by the trial court.
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these two witnesses are not stating the truth.
The Medical Officer, who had performed the post mortem on
the dead body of the deceased Bhimral has examined as PW 4 – Dr. Jayashri Akhade. She has referred to the entry and the exit wounds. The situation of the entry and the exit wounds, according to us, is not suspicious as would doubt the finding of the Medical Officer that these wounds have been caused on account of gun shot and that they are gun shot injuries. PW 4 – Dr. Jayashri has not been cross examined on behalf of the appellant on those lines and in the absence of any adequate material in the crossexamination, the findings of the Medical Officer cannot be held to be doubtful.
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broad-day light and the appellant was known to PW 2 – Sushila and PW 6 – Kavita. The report at Exh. 27 came to be lodged by PW 2 – Sushila almost immediately. We, thus, find that there is no delay which would indicate that the report had been filed after due deliberation. The prosecution, therefore, in our opinion, has proved the offence against the appellant beyond reasonable doubt. The appeal, therefore, being without merit, is dismissed confirming the conviction and sentence.
(REVATI MOHITE DERE,J.) (P. V. HARDAS,J.)
Maruti Eknath Waghmare
The State of Maharashtra
P. V. Hardas
Revati Mohite Dere
As recorded by the court registry
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