Criminal Appeal No. 435 of 1984. Case: Vishnu Daga Pagar and others Vs State of Maharashtra. High Court of Bombay (India)

Case NumberCriminal Appeal No. 435 of 1984
CounselFor Appellants: P. P. Hudilkar with P. N. Joshi, Advs. and For State: V. T. Tulpule, Public Prosecutor
JudgesV. Sahai, J. Aand Mrs. Ranjana Desai, J.
IssueIndian Penal Code (45 of 1860) - Sections 302, 34, 300; Criminal Procedure Code (2 of 1974) - Sections 378(1), 401(3)
Citation1997 CriLJ 2430
Judgement DateFebruary 14, 1997
CourtHigh Court of Bombay (India)

Judgment:

Sahai, J.

  1. By means of this appeal, the appellants impugn the judgment and order dated 17-5-1984 passed by the Additional Sessions Judge, Nasik in Sessions Case No. 83 of 1983, convicting and sentencing them in the manner stated hereinafter.

    (i) Vishnu Daga Pagar

    Under Section 302, IPC to imprisonment for life;

    (ii) Dilip Daga Pagar

    Under Section 323, IPC; and

    (iii) Shenaji Daga Pagar

    Under Section 324, IPC.

    The learned trial Judge instead of sentencing the appellants Dilip and Shenaji, released them on probation of good conduct on each of them furnishing a bond of Rs. 700/- and to appear and receive sentence as called upon during the period of two years, from the date of the order, and in the meantime to keep peace and be of good behaviour. We are informed that the appellants Dilip and Shenaji have furnished the required bonds. He, however, acquitted them under S. 302, read with 34, IPC.

    By the said judgment he acquitted Balu Chavan, Arjun Ahira and Rupchand Pagar on all the counts.

  2. Briefly stated the prosecution case runs as under:-

    The informant Kalu Nathu Kapadnis, PW. 1 had three sons namely Gaman Kalu (deceased) Abhiman (PW 2) and Bhagwan (PW 3). Yamunabai PW. 4, was his wife. Bagabai P.W. 11 wife of Abhiman was his daughter-in-law. The informant, deceased and others on one side and the appellants and the acquitted accused on the other were residents of a common village-Utarane which was situated in District Nasik. Till a day prior to the incident, relations between the informant and others on one hand and the appellants on the other were cordial. It is said that on the morning of the date of the incident viz. 14-3-1983, the deceased Gaman told Bhagwan P.W. 3 that the bund between their field and that of appellant Vishnu had been destroyed by the latter. Gaman also told Bhagwan that boundary stones were lying helter-skelter. Abhiman P.W. 2 told Bhagwan that he would go to appellant Vishnu and ask him as to why the boundary stones had been uprooted. The evidence is that at about 7 a.m. he proceeded towards village Utarane where Vishnu resided. He questioned him as to why he had broken the bund. This has come in para 7 of the evidence of Abhiman. After some time, Abhiman returned to the threshing floor. There, Bhagwan and Gaman were present. Yamunabai, Abhiman's wife, Bhagabai and Sumanbai were present at the hut which was in the immediate proximity of the threshing floor. The time was about 8 a.m. At the said time, a bullock cart driven by Sharawan Gaikwad (Approver) came and stopped nearby. In the said bullock-cart, the appellants, as also the acquitted accused, Balu Chavan, Arjun Ahire, and Rupchand Pagar were sitting. The appellant Vishnu called Gaman who was also known by the name of Anna. Gaman thereupon, went to Vishnu. Immediately, thereafter Vishnu inflicted a sickle blow on the head of Gaman. Thereafter, Yamunabai, Bhagabai Abhiman and Bhagwan, rushed to the rescue of Gaman. They tried to save Gaman. Appellants Sanaji and Dilip assaulted them with an axe and stick respectively. While the appellants and others were assaulting the victims, the acquitted accused Rupchand was exhorting others to finish all of them. Apart from Abhiman, Bhagwan, Yamunabai and Bhagabai, this incident was witnessed by Sahabrao PW. 8 and Karbhari P.W. 9.

    It is pertinent to note that some amongst the eye-witnesses stated that Dilip and Shenaji also assaulted Gaman.

    After assaulting Gaman and others, the appellants and the acquitted accused persons ran away from the place of the incident.

  3. Immediately after the incident, a bullock-cart was called for and in the same, the victims were first taken to Dr. Kamlakar Pagare, P.W. 5, a Medical practitioner who was also residing in village Utarane. Dr. Kamlakar advised that he could not treat the injuries suffered by them and they should he removed to Nampur. Consequently, they were removed to Nampur.

    It may be stated that the evidence of some of the witnesses is that appellants Vishnu and Shenaji put Gaman in the bullock-cart and the latter accompanied them upto Nampur and wanted Abhiman and others to proceed to the village and compromise the matter.

  4. The evidence is that at Nampur, Dr. Mukund Deshpande, P.W. 15 medically examined the victims between 9 a.m. and 10 a.m. the same day.

    On the person of Gaman Kalu, he found the following injuries:-

    (1) Incised wound on the frontal region of the scalp and suspected fracture;

    (2) Swelling to the left eye.

    He sutured the head injury. The injury report of Gaman is Exhibit 69.

    On the person of Abhiman, he found the following injuries:-

    (1) Incised wound on the vertex;

    (2) Contused lacerated wound on occipital region of the scalp.

    On the person of Bhagwan, he found an incised wound on occipital region of scalp 2" x 1" x 1/4" The injury report of Bhagwan is Exhibit 71.

    On the person of Yamunabai, he found a incised wound on the frontal region of scalp with suspected fracture and a swelling on the left eye. The injury report of Yamunabai is Exhibit 72.

    Dr. Mukund Deshpande, referred all of them to Civil Hospital, Nasik. The evidence is that in a taxi, from Nampur, the victims were taken there. At the said hospital, they were admitted. The same evening Gaman succumbed to his injuries.

  5. Going backwards, the prosecution case is that Kalu Kapadnis P.W. 1, father of Gaman Kalu, Abhiman and Bhagwan, who was not an eye-witness of the incident, was informed about it by his daughters-in-law Bhagabai, P.W. 11 and Suman. He learnt that Gaman and others had been shifted in a bullock-cart to Dr. Kamlakar's dispensary. Accordingly he went there. Dr. Kamlakar advised Gaman to be shifted to Nampur Primary Health Centre. He then took Gaman and others to Nampur and from there, to Civil Hospital, Nasik.

  6. The police came at Civil Hospital, Nasik and took him to Jaikheda Police Station, head Constable Suryavanshi recorded his FIR, the same day at 1-15 p.m. and on its basis Cr. No. 29 of 1983 was registered. This has come in para 18 of the evidence of the Investigating Officer, Circle Inspector Balkrishna Sanap P.W. 14.

  7. The investigation was conducted by Circle Inspector Sanap. His evidence is that Dy. S.P. of Manmad Division, asked him to carry it out because Police Sub-Inspector of Jaikheda Police Station was investigating an offence. of murder. Consequently, he went and took over the investigation from Head constable Suryavanshi that very day. That day, he recorded the statement of the informant; prepared panchanama of the scene of the incident; recorded the statement of some other witnesses; and searched for the accused persons.

    Between 16-3-1983 and 20-3-1983, he arrested the appellants and the acquitted accused persons. During the course of the investigation on the pointing out of appellants Vishnu, Shenaji and Dilip and the acquitted accused Balu Chavan and Arjun Ahire, recoveries were made under panchanamas.

    From the Vine-yard of Shenaji; from beneath the heap of bajra, at his pointing out a shirt and a pant was recovered.

    From the southern corner of the same Vine-yard; from beneath some earth, which was dug, a sickle was recovered on the pointing out of Vishnu.

    From the bajra heap, in the same Vine-yard on the pointing out of Dilip, a shirt, pant and a small stick was recovered.

    We are not referring to the recoveries made on the pointing out of Balu and Arjun as the same are not relevant for disposal of this appeal.

    During the course of investigation he sent the recovered articles to the Chemical Analyst.

    After completing the investigation Circle Inspector Sanap submitted the charge sheet on 12-6-1983.

  8. Going backwards, the autopsy on the dead body of the deceased Gaman Kalu was conducted on 15-3-1983 by Dr. Ashtaputre, PW-16. The doctor found the following external injuries:-

    1. Stiched wound on frontal region of 2.75 inches in length. There were blood clots. Both eye lids of left eye swollen.

    On internal examination, he found depressed fracture of frontal bone on the anterior part of vault of skull. The longer limb of the fracture was on the right side. He also found that coverings of brain below the fracture were torn; there was intra-cranial haemorrhage; and the frontal lobe was lacerated. In the opinion of Dr. Ashtaputre, the deceased died on account of shock due to fracture of skull and intra-cranial haemorrhage and his injuries were sufficient in the ordinary course of nature to cause his death.

    On being shown the sickle-article 18, Dr. Ashtaputre, categorically opined that the injuries of the deceased could not be caused by it. On being shown the axe, he stated that the injuries of the deceased could be caused by that axe.

  9. The case was committed to the Court of Session in the usual manner. In the trial Court, the appellants and others were charged on the counts enumerated below:-

    Under Sections 148, 302 r/w 149, I.P.C. in the alternative 302 read with 34, I.P.C. 307, read with 149, I.P.C. in the alternative 307 read with 34, I.P.C. and 323 read with 149, I.P.C.

    To the said charges, they pleaded not guilty and claimed to be tried.

    During the trial, the prosecution examined 16 witnesses. 7 of them namely, Abhiman, Bhagwan, Yamunabai, Sahebrao Kapadnis, Karbhari Pagar, Shrawan Gaikwad and Bhagabai Kapadnis, PWs 2, 3, 4, 8, 9, 10 and 11 respectively were examined as eye-witnesses. The prosecution also tendered and proved a number of exhibits.

    In defence the acquitted accused Balu Chavan examined DW-1 Dr. Prakash Pawar to prove his alibi; that being on the date of the incident he was admitted in his hospital. The...

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