High Court
Legal Reasoning
APEAL-243-23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 243 OF 2023WITHCRIMINAL APPLICATION NO. 939 OF 2023Guman Vajarya PawaraAge: 45 years, Occu.: Convict,R/o Hindali, Tq. Sendhva, Dist. Badwani,Madhya PradeshAt present R/o Saver Shivar, Tq. Shirur,Dist. Dhule..APPELLANTVERSUSState of MaharashtraThrough P.S.O. Thalner, Dhule..RESPONDENT....Mr. R.A. Jaiswal, Advocate for appellant (Appointed through Legal Aid)Mr. S.J. Salgare, A.P.P. for respondent - State.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJDATE : 12th SEPTEMBER, 2024ORAL JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.The challenge in this appeal is to a judgment and order ofconviction and consequential sentence passed against the appellant by theAdditional Sessions Judge, Dhule (‘trial Court’) in Sessions Case, No. 214 of2013 dated 31st January, 2017. Vide the impugned judgment and order, theappellant has been convicted for the offences punishable under Section 302and 324 of the Indian Penal Code (‘I.P.C.’), and therefore, sentenced tosuffer imprisonment for life and to pay fine of Rs.2,000/- and rigorousimprisonment for three years and to pay fine of Rs.1,000/-, respectively. In1 / 7 APEAL-243-23.odtdefault of payment of fine amount, he has been directed to undergo simpleimprisonment for four months and two months respectively.2.The facts giving rise to the present appeal are as follows :-The First Information Report (‘F.I.R.’) (Exh.17) was lodged by PW1 – Akbar on 31st August, 2013. It is his case that he owns an agriculturalland at village Saver, Tq. Shirpur, Dist. Dhule. On the fateful day i.e. on 31stAugust, 2013 itself, the work of harvesting lady fingers was underway. Hisson, Firoz was resting on the cot. The appellant all of a sudden came withan axe and gave Firoz three blows therewith. When PW 3 – Suresh tried tocatch hold the appellant, he (Suresh) too was assaulted with the axe. Theappellant thereafter fled. The reason behind the assault was that Firoz hadslapped on the face of the appellant about six months before the incident.The appellant was annoyed thereby, and therefore, done away with Firoz.3.Based on the F.I.R. (Exh.17) lodged by Akbar, crime vide C.R.No. 41 of 2013 was registered against the appellant. On completion ofinvestigation, charge-sheet was filed against him. The case was committedto the Court of Session. It was assigned to the trial Court for trial inaccordance with law.4.Charge (Exh.12) was framed against the appellant. He pleadednot guilty. His defence was of false implication.2 / 7 APEAL-243-23.odt5.To bring home the charge, the prosecution examined sixwitnesses and produced in evidence certain documents. On appreciation ofthe same, the trial Court convicted the appellant and consequently sentencedas stated above.6.Learned counsel for the appellant would submit that the appellantwas falsely implicated for no reason. The motive that the deceased slappedthe appellant six months before the incident is grossly inadequate to lead theappellant to commit murder of Firoz. Learned counsel took us through theevidence on record to ultimately urge for allowing the appeal.7.Learned A.P.P. would, on the other hand, submit it to be an openand shut case. He took us through the evidence on record. According tohim, the case is based on eye witness account. Such evidence carriesgreater weight. The witnesses have no reason to falsely implicate theappellant sparing the actual culprit. He, therefore, urged for dismissal of theappeal.8.Before the trial Court, the appellant admitted postmortemexamination report (Exh.19). The said report indicates Firoz died of shockdue to cardiorespiratory failure due to massive haemorrhage due to multipleinjuries with multiple fractures with vital organ injury with head injury.9.Moreover, PW 4 – Dr. Kailashsing was the Medical Officer atShirpur Cottage Hospital on the given day. He examined PW 3 - Suresh to3 / 7 APEAL-243-23.odtfind following three injuries on his person :-1)Incised wound on left thenar eminence of the palm 4 x 1 x0.5 cm2)Incised wound on the left palm 1 cm away from injury No.1,5 x 0.3 x 0.33)Incised wound on right cubital fossa 5 x 1 x 1 cm.The injury certificate of PW 3 – Suresh issued by him finds placeat Exhibit 24.10.The F.I.R. (Exh.17) was lodged by PW 1 – Akbar within hours ofthe incident. It is in his evidence that he owns an agricultural land, Gut No.192 at Saver vicinity, Tq. Shirpur. He came to his field by little past 09:00 inthe morning. His son, Firoz (deceased) was lying on the cot. He saw theappellant gave three blows with an axe to his son – Firoz. It is further in hisevidence that the appellant started running away. PW 3 – Suresh, therefore,attempted to catch hold of him. The appellant, therefore, assaulted him withthe axe. The appellant then fled. He brought an Indica car and took his sonto Cottage Hospital, Shirpur. PW 3 – Suresh followed them to the veryhospital.In the cross-examination it was suggested to him that he hadcome to his field at 08:30 in the morning. It was also brought on recordthrough his cross-examination that PW 3 – Suresh was residing in the veryfield. It was further brought on record that six months before the incident,Firoz had given two slaps to the appellant on account of having problem ofthe wife of Suresh. He was confronted with the F.I.R. to bring on recordomission that the appellant gave Firoz an axe blow on his neck. On perusal4 / 7 APEAL-243-23.odtof the F.I.R. (Exh.17) it appears that omission pertains to portion of the body,‘neck’ only. The same, therefore, is of little consequence. During cross-examination of PW 1 – Akbar, nothing useful could be brought on record thatwould help the appellant in his defence.11.PW 2 – Dadamiyan was the uncle of deceased – Firoz. Hisevidence is on the lines of the evidence of PW 1 – Akbar. His evidenceindicates that he was in the field by 09:00 in the morning on 31st August,2013. Labours were engaged in plucking lady fingers. He was collecting thesame. PW 3 – Suresh was engaged on yearly remuneration (lkkynkj). Firozwas resting on the cot. It is further in his evidence that he heard sound ofbeating. He saw the appellant gave Firoz second axe blow. He, therefore,raised shouts. During that time the appellant gave third blow on the neck ofFiroz. PW 3 – Suresh tried to catch hold of him. The appellant assaultedSuresh as well.He was confronted with his statement to the police, to bring onrecord the same to have been silent to state the appellant to have assaultedon head, below the ear and on the neck of Firoz.12.PW 3 – Suresh is another vital witness. His evidence isconsistent with the evidence of both, PW 1 and 2. It is in his evidence thathe was serving as ‘Saldar’ with PW 1 – Akbar. He would reside in a hut onPW 1 – Akbar’s land. His wife too would reside with him. His evidencefurther indicates that his wife left him for no return six months before he gave5 / 7 APEAL-243-23.odtevidence in the Court. His evidence further indicates that the incident tookplace by 09:30 a.m. in the morning. He was working in the field. His wifewas engaged in plucking the lady fingers. PW 2 – Dadamiyan was alsothere. It is further in his evidence that the appellant came with an axe. Hesaw the appellant assaulted Firoz with the axe. He raised shouts. Heintervened to save Firoz. The appellant gave axe blows on his right handelbow and left hand palm. He thereby suffered injuries. PW 1 – Akbar wascoming to the field by that time. After having seen all of them, the appellantfled away.13.We have closely perused the cross-examination of PW 1 to 3 tofind nothing to disbelieve their evidence. PW 3 – Suresh’s evidence carriesgreater weight since he being an injured witness. PW 1 to 3 have no reasonto falsely implicate the appellant, sparing the real culprit. PW 5 – Dilip didsome of the investigation of the crime. He sent the seized muddemal toR.F.S.L., Nashik. He also recorded statements of the persons acquaintedwith the facts and circumstances of the case. PW 6 – Ramkrishna was awitness to the crime scene panchanama (Exh.36) and the panchanama ofthe seizure of clothes of the deceased (Exh.37). He was also a witness tothe disclosure statement made by the appellant pursuant to which an axecame to be seized. Both the memorandum statements given by theappellant and seizure panchanama of the axe finds place at Exhibit 38 and39.6 / 7
Decision
APEAL-243-23.odt14.Since the evidence of PW 1 to 3 was found to be reliable andinspiring confidence, we do not propose to dwell at length as to the evidenceof other witnesses viz. Police officials, who did the investigation and thepanch witness referred to above. Suffice it to say that based on the evidenceof PW 1 to 3, the trial Court has rightly convicted the appellant andconsequently sentenced. We find no reason to interfere with the impugnedorder of conviction and even quantum of sentence as regards offencepunishable under Section 324 of the I.P.C.15.In the result, criminal appeal stands dismissed. In view ofdismissal of the criminal appeal, nothing survives in the criminal application.Same, therefore, stands disposed of accordingly.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD7 / 7