Dismissed

Vinayak Nivruti Dhumal v. the State of Maharashtra

Bombay HC21 Aug 2013APEAL/522/2010

Case brief

AI extract

What is this about?

In this criminal appeal against conviction, the High Court upheld the finding of the Sessions Judge that the appellant assaulted Namdev with an axe on the neck, causing his death. Distinguishing a prior precedent regarding child witnesses, the Court relied on corroborative evidence and preliminary inquiries to dismiss the appeal.

What did the court decide?

Appeal dismissed; appellant convicted and sentenced to life imprisonment confirmed.

Vinayak Nivruti Dhumal Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 522 OF 2010

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(Through Jail)

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Vinayak Nivrutti Dhumal ] Convict No. C/4657, At present undergoing ] Life Imprisonment in Kolhapur Central Prison, ] Kalamba. ] Appellant (Org. Accused)

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Versus

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The State of Maharashtra ] Respondent

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Mrs. Indrayani M. Koparkar, Advocate appointed for the Appellant

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Mrs. S.V. Gajare-Dhumal, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ

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DATE : AUGUST 21, 2013.

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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :-

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The appellant-original accused has preferred this appeal

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against the judgment and order dated 31.12.2009 passed by the

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Additional Sessions Judge, Satara in Sessions Case No. 50 of

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By the said judgment and order, the learned Sessions

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Judge convicted the appellant for the offence punishable under

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Section 302 of IPC and sentenced him to rigorous imprisonment

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for life and fine of Rs. 5000/- in default, RI for 6 months.

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The prosecution case briefly stated, is as under:

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(a) PW 6 Surekha was residing at Village Karanjkhop

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along with her family. Her family consisted of her husband, her father-in-law Namdev (deceased) and her children PW 5 Shivraj @ Rohit and Aniket. The appellant was related to Surekha and her family. He was residing next to the house of Surekha. PW 3 Mahadev who is the first informant in the present case was also residing adjacent to the house of Surekha. The appellant was also related to PW 3 Mahadev. The appellant used to do liquor business due to which nuisance was caused to the family of Mahadev and Namdev. Namdev had asked the appellant to stop his liquor business.

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(b) On 16.11.2007, children complained to PW 3 Mahadev

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that the appellant was under the influence of liquor and asked

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them not to play there or else he would cut their legs by axe.

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Then PW 3 Mahadev, deceased Namdev, Subhash and others

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asked the appellant why he was troubling the children. The appellant stated that deceased Namdev was complaining about his liquor business, therefore, cases were filed against him.

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Namdev, PW 5 Rohit and Aniket had gone to the field. At about 05.00 p.m., they were returning home. When they reached near the well of one Gurav, Rohit saw that the appellant was sitting near pole with an axe. Namdev, Rohit and Aniket crossed the appellant. Rohit saw that the appellant was following them. He warned his grandfather that the appellant was coming behind him with an axe. Namdev asked them to proceed and said that the appellant will not do anything. The appellant then came from the backside of Namdev and gave blow of axe on the neck of Namdev. Because of the blow, Namdev fell down. PW 5 Rohit and his younger brother Aniket went and narrated the incident to their mother PW 6 Surekha. Rohit also called 2-3 other persons. Namdev expired on the spot. PW 3 Mahadev who is the relative of

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Namdev lodged the FIR against the appellant as PW 5 Rohit had informed him that the appellant had assaulted his grandfather Namdev with an axe on the neck. The FIR was registered on 18.11.2007. Thereafter, investigation commenced. The appellant

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was arrested. After completion of investigation, the charge sheet came to be filed.

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Charge came to be framed against the appellant under

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Sections 302 of IPC and under Section 37(1)(3)/135 of Bombay Police Act. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal.

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We have heard the learned Advocate for the appellant and

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the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the

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judgment delivered by the learned Sessions Judge and the

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evidence on record, for the reasons stated below, we are of the opinion that appellant assaulted Namdev with an axe on the neck and caused his death.

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The conviction is mainly based on the evidence of PW 5

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Rohit who is an eye witness to the incident. PW 3 Rohit was residing at Village Karanjkhop along with his father, mother PW 6 Surekha, brother Aniket and grandfather Namdev (deceased). PW

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3 Mahadev and the appellant were residing adjacent to the house of PW 5 Rohit. Two days prior to the incident i.e on 16.11.2007, the children were playing cricket outside their house. When the ball went in front of the house of the appellant, he told the children that in case the ball again comes in his house, he will cut their hands and legs. The evidence of first informant PW 3 Mahadev shows that the children informed him that the appellant

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was under influence of liquor and he told the children not to play

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there or else he would cut their legs with an axe. Then, deceased

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Namdev, PW 3 Mahadev and others went and asked the appellant

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why he was troubling the children. The appellant replied that deceased Namdev was complaining about his liquor business, therefore, cases were filed against him.

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PW 5 Rohit has stated that the incident occurred on 18.11.2007. They had gone to their field. At about 05.00 p.m., they were returning home. When they reached near the well of one Gurav, Rohit saw that the appellant was sitting near pole with an axe. Namdev, Rohit and Aniket crossed the appellant. Rohit saw that the appellant was following them. He warned his grandfather that the appellant was coming behind him with an

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axe. Namdev asked them to proceed and said that the appellant will not do anything. The appellant then came from the backside

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of Namdev and gave blow of axe on the neck of Namdev. Because of the blow, Namdev fell down. PW 5 Rohit and his younger brother Aniket went and narrated the incident to their mother PW 6 Surekha. Rohit also called 2-3 other persons.

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As far as the actual incident of assault is concerned, this

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witness has not been dislodged in his cross-examination. PW 5

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Rohit was about 9 years old at the time of the incident and about

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11 years old when he was deposing before this Court. We find that the learned trial Judge has put questions to this witness to ascertain that he was in a position to understand the questions and answer the same.

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Mrs. Koparkar, learned Advocate for the appellant submitted

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that PW 5 Rohit is a child witness and his statement has been recorded belatedly. In such case, his evidence ought not to be relied upon. To support this contention, she placed reliance on

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the decision of this Court in the case of State of Maharashtra

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Vs Gajanan Baburao Phakatkar¹ . Mrs. Koparkar pointed out that in the said case, the sole testimony of a child witness, who was seven years old at the time of recording of evidence, was not

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relied upon. Mrs. Koparkar submitted that it was not relied upon

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because it was felt that as a rule of caution, the evidence of a

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child witness should receive some corroboration and in the said

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case, statement of the child witness was not recorded

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1 2005 ALL MR (Cri) 306

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immediately but it was recorded after some delay. She pointed out that in the present case also, the statement of PW 5 Rohit was recorded on 26.11.2007.

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We have carefully perused the decision in the case of Gajanan B. Phakatkar (Supra). In the said case, we find that the most material aspect was that the child witness was not asked

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any preliminary question by the learned Sessions Judge to ascertain whether the child witness was in a position to understand the questions and answer the same. In the said case, it was further noticed that there was delay in recording statement

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of the child witness and there was no corroboration to the evidence of the child witness. Further as stated earlier by us, the main issue was that the child witness was not asked any preliminary question by the learned Sessions Judge to ascertain whether the witness was in a position to understand the questions and answer the same. In the present case, the learned Sessions Judge has put preliminary question to the child witness and found that the child witness was in a position to understand the questions and answer the same. Moreover, it is seen that the

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evidence of PW 5 Rohit who is the child witness receives

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corroboration from the medical evidence.

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PW 4 Dr. Bagwan conducted the postmortem on the dead

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body of Namdev. On external examination, he found the following

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injuries:-

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Incised wound at sub-occipital region on nape of neck obliquely placed : 13 x 1 x 6 cm extending from 2 cm away from left ear lobe to 4 cm away from right ear pinna. Sharp everted edges underlying muscles clearly cut margins. Bleeding present.

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PW 4 Dr. Bagwan opined that the injuries were possible by the axe (Article 11) before the Court.

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It is further noticed that the decision in the case Gajanan B. Phakatkar (supra) was rendered in a case of an appeal against acquittal and it is well settled that in case of an appeal against acquittal, different considerations apply than in the case of an appeal against conviction. Thus, this decision cannot be made applicable to the facts of the present case.

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The evidence of PW 5 Rohit is also corroborated by the

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evidence of PW 3 Mahadev who is the first informant in the present case. PW 3 Mahadev has stated that on 16.11.2007, when he came back from his field in the evening, the children in the Wada told him that the appellant was under the influence of liquor and asked them not to play there or else he would cut their

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legs with an axe. PW 3 Mahadev, deceased Namdev and others went and asked the appellant why he was troubling the children. The appellant told him that deceased Mahadev was complaining about his liquor business, therefore, cases were pending against him. PW 3 Mahadev has further stated that on 18.11.2007 i.e on the date of the incident at about 07.00 p.m., PW 5 Rohit and his brother Aniket i.e the grandsons of deceased Namdev told him

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that the appellant assaulted their grandfather i.e Namdev with an

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axe. This witness was residing adjacent to the house of PW 5 Rohit and his family and he was also related to the family of Rohit.

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Hence, Rohit had informed him about the incident. It is further

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pertinent to note that PW 3 Mahadev has lodged the FIR in the present case. The FIR was lodged on the very same day of the

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incident at 23.40 Hrs. In the FIR, it is clearly mentioned that PW 5

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Rohit had informed him at about 07.00 p.m. that the appellant had assaulted their grandfather Namdev with an axe and that

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Rohit and his brother had witnessed the same. Thus, the evidence of PW 3 Mahadev that PW 5 Rohit had informed him that he had witnessed the incident of assault by the appellant on his grandfather with an axe lends credence to the evidence of PW 5 Rohit. Thus, even if there is some delay in recording the statement of PW 5 Rohit who is a child witness, it would not, in the facts and circumstances of this case, affect the testimony of Rohit.

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On going through the record, we find that there is sufficient evidence to connect the appellant with the crime. Thus, we find

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no merit in the appeal. The appeal is dismissed.

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Office to communicate this order to the concerned prison

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Authorities and to the appellant who is in jail.

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At this stage, we must record our appreciation for Advocate

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Mrs. Indrayani M. Koparkar who is on the panel of Advocates of High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this

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appeal by the High Court Legal Services Committee at ` 2500.

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[MRS. MRIDULA BHATKAR, J ] [SMT. V.K. TAHILRAMANI,J ]

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Vinayak Nivruti Dhumal v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Vinayak Nivruti Dhumal v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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