Bhima vs The State of Maharashtra

P.B. Varale, J.—By the present appeal, the appellant, Bhima Alam challenges the judgment and order passed by the learned Additional Sessions Judge, Gadchiroli in Sessions Trial No. 43/1996 thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and awarding sentence to suffer imprisonment for life along with fine of Rs. 200/- in default R.I. for 15 days.

The prosecution case can be summarized as follow:

(i) The appellant and the deceased are residents of Village Pirmida, Taluka Sironcha, District Gadchiroli. The appellant (hereinafter referred to as accused) was facing criminal prosecution launched against him for assaulting father of the deceased. The accused had been to the house of the deceased with a request to deceased and his wife to compromise the criminal prosecution pending against him. The deceased and his wife informed the accused that as the prosecution is instituted on the report of the father of deceased, the accused should request the father of the deceased for compromise. The incident took place on 7-9-1995. It was a day of immersion of idols of Lord Ganesha. The procession on that day started and was going through the said Village Pirmida, as the procession reached near the house of the deceased, the deceased and his wife offered pooja and returned back to their home. The deceased was not keeping good health. The deceased and his wife were about to take prasaad, at that time accused came to their house. The accused also shared the prasaad. The accused was insisting the deceased to accompany him. Though the deceased was not willing but for the insistence of the accused, he agreed to accompany the accused. The duo i.e. the accused and deceased left house of the deceased. At the same time, wife of the deceased had been to a public well for fetching water. This duo reached towards the square (chowk) of Village Pirmida. As the procession reached near the house of one Soyam Pocham and while the deceased was watching the procession, accused assaulted the deceased by giving successive knife blows. The deceased sustained injuries on his vital parts of body, namely, chest, neck and back. One Ramaiyya Bandogla who witnessed this incident, immediately, rushed towards the deceased and snatched the knife from the hands of the accused. One Pocham Sangamwar also witnessed this incident of the accused giving blows of knife to the deceased. At the same time, wife of the deceased who had been to a public well to fetch water as the well was near to the spot of incident, she also witnessed the incident. The accused fled away from the spot after the assault. Deceased was immediately taken to the house of Soyam Pocham as his house was near to the place of incidence. Before providing any medical help, the deceased succumbed to the injuries. Pocham Sangamwar immediately rushed to the Police Station and lodged report. On the said lodgment of report, offence punishable under Section 302 of the Indian Penal Code was registered against the accused by Shri Siddiqui, the then Police Station Officer. Ramaiyya Bandogla, who snatched the knife from the hands of the accused, handed over the knife to the Police Patil Papaiyya Atram and the same was produced before Shri Siddiqui. Shri Siddiqui who took over the investigation, on lodgment of the report, carried out necessary formalities of the investigation such as drawing inquest panchanama, spot panchanama, recording statements of the witnesses, referred the body to Autopsy Surgeon and received the post mortem report from Autopsy Surgeon. The accused was arrested on 10-9-1995. While effecting the arrest, it was found that the clothes of the accused were stained with bloods, as such, the clothes were seized in presence of panchas. The clothes of the accused, deceased and the knife were sent for chemical analysis. On conclusion of the investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Sironcha. The offence being exclusively triable by the Court of Sessions, the learned Magistrate committed the accused to the Court of Additional Sessions Judge for trial. The accused pleaded not guilty and claimed for trial.

(ii) The prosecution in support of its case mostly relied on the direct evidence in the form of the eye witnesses. The accused raised two fold pleas of defence. The first plea of the accused was of total denial and a bold defence was taken suggesting that P.W. 4 Ramaiyya Bandogla is the person who assaulted the deceased and caused his death and in order to save himself in connivance with Police Patil and other witnesses, a false case was registered against the accused. The other limb of defence of the accused was a plea of alibi. It was submitted by the accused in his statement under Section 313 of the Code of Criminal Procedure that on the day of incident, he was not present at Village Pirmida but he was in another State i.e. in the State of Andhra Pradesh and he returned from another State after 3-4 days of the incident. The learned Additional Sessions Judge, on appreciation of the evidence, arrived at the conclusion of holding the accused guilty of the offence charged against him and passed the judgment and order referred to above.

Learned counsel Mrs. Kulkarni appointed for the appellant/accused vehemently submitted that on erroneous appreciation of the evidence, the learned trial Court passed the judgment and order of conviction and sentence against the appellant/accused. The learned counsel submitted that the witnesses have not witnessed the actual incidence and these witnesses are interested witnesses. The submission of the learned counsel for the appellant is the witnesses are not trustworthy and reliable. She further submitted that there is a variance on account of the incident as well as on account of the weapon used in the commission of crime. Thus, it is the submission of the learned counsel that as the witnesses are got up witnesses and they do not give the actual account of the incident, these witnesses are to be discarded. Thus, the learned counsel prayed for allowing the appeal.

Per contra, Shri Ghodeswar, learned Additional Public Prosecutor submits that the witnesses are most natural and trustworthy witnesses. He submits that their presence on the spot was a natural consequence. He further submits that the version of P.W. 5 Rambai, who is an eye witness to the incident, stood the test of cross-examination and her version cannot be thrown on account of being an interested witness. He further states that the weapon used in commission of crime was handed over by an independent eye witness who intervened in the incident so as to save the victim. Therefore, it is an additional circumstance to the version of eye witness in favour of the prosecution is the submission of the learned Additional Public Prosecutor. The learned Additional Public Prosecutor prayed for dismissal of the present appeal.

With the assistance of learned counsel for the appellant as well as learned Additional Public Prosecutor, we have gone through the material on record. The prosecution case mainly rest on the version of the eye witnesses. Insofar as the death of the victim is concerned, on consideration of the medical evidence, it will reveal that on receiving information through complainant Pocham Sangamwar, P.W. 6 Shri Siddiqui, Investigating Officer rushed to the place of incident. The dead body of the victim was found in the courtyard of his house. Inquest panchanama was drawn. The dead body was referred to Primary Health Center, Sironcha for conducting autopsy. The Autopsy Surgeon Dr. Wankhede, P.W. 1 deposed about the injuries caused to the victim. He referred to one internal injury i.e. deep penetrating injury in the left side of the chest in precordial region of the chest of size 2" x 5" in deep. He further deposed that the said injury had caused damage. Then he referred to the four external injuries. He deposed that out of these four injuries, the injury Nos. 1 to 3 are major and grievous injuries. P.W. 1 Dr. Wankhede in clear words denied the suggestion of the injuries being sustained accidentally. He further in clear words states that sharp pointed edged weapon was practically thrust into the upper portion of the body of deceased. Dr. Wankhede further deposed that pericardium was found torn due to the external injury on right side of the chest and there was rupture of left atrium. In the ultimate opinion of the Autopsy Surgeon, the probable cause of death is cardio-respiratory arrest due to shock, due to sever hemorrhage, due to penetrating injuries to the heart and major vessels in the right side of the neck. Thus, the medical evidence leaves no doubt on the aspect of death of the victim being homicidal one.

The next issue which requires consideration is about the complicity of the accused/appellant in the crime in question. On that aspects, we examine the testimony of eye witnesses, namely, P.W. 3 Pocham Sangamwar, P.W. 4 Ramaiyya Bandogla and P.W. 5 Rambai Atram. P.W. 3 Pocham Sangamwar deposed that the incident took place on the day of immersion of the idols of Lord Ganpati. He further deposed that the procession was heading towards the square (chowk) of the village and it reached near the house of Soyam Pocham. He then deposed that he was participating in the immersion procession. He then deposed that while the deceased was watching the procession, the accused came to him and gave blow by the knife on the abdomen of the deceased. He further deposed that one Ramaiyya rushed to the spot and snatched the knife from the hands of the accused. He further states that he along with Pocham Soyam and Bondogla Ramaiyya immediately took the victim to the house of Soyam Pocham and laid him on the cot. He then states that after 15 minutes, the deceased succumbed to the injuries. He then states that he along with Soyam Pocham went to Police Station, Reguntha and lodged the oral report. This witness was subjected to the cross-examination and the only omission brought on record is in respect of number of blows. On the material aspects such as the accused was the person who gave knife blows on the vital part of the body of the victim, this witness stood firm. He is also panch to the inquest panchanama, Exhibit 48 as well spot panchanama, Exhibit 49.

The next witness is P.W. 4 Ramaiyya Bandogla. He is also the person who was one of the participants in the immersion procession. Ramaiyya deposed that accused gave knife blows on the right shoulder and right abdomen of the deceased. He deposed that he went to the accused and snatched the knife from his hand. This witness supports the version of P.W. 3 Pocham Sangamwar on the aspect of shifting the victim to the house of Soyam Pocham and deceased succumbed to the injuries. Ramaiyya further deposed that he handed over the knife which was snatched by him from the accused to Police Patil. In the cross-examination of this witness, a bold stand was taken by the defence to suggest that this witness is the culprit who gave knife blow to the victim and in order to save him, the accused was falsely implicated. Though such bold stand was taken, nothing was brought by the defence so as to suggest an enmity of this witness with the deceased. An attempt was also made to suggest that this witness was not an eye witness, but merely picking up some stray sentences, reliable version of this witness cannot be discarded.

The next important eye witness is P.W. 5 wife of the victim Rambai. P.W. 5 Rambai refers to the fact that the accused was facing the prosecution on account of assault on her father-in-law Narsaiyya Atram. Then she states that on the day of incident at about 2.00 p.m., the accused by visiting her house asked her and her husband for compromise in the criminal case. She further deposed that it was told to the accused by herself and her husband that the accused should ask her father-in-law about the compromise. Then she states that as the procession was going in front of their house, they went to the idol of Lord Ganesh and offered coconut, they returned back to their house, they were about to consume the prasaad, at that time, the accused came there and demanded prasaad. She then deposed that she provided prasaad and also glass of water to the accused. Thereafter the accused asked the husband of P.W. 5 Rambai to accompany him for watching procession and though her husband initially refused to accompany the accused on account of his illness, on the insistence of the accused, her husband left his house joining the accused. She also left the house for fetching the water. While she was fetching the water and turned back for filling the water container, she saw that accused was assaulting her husband by means of knife. She also saw that Ramaiyya also rushed the spot and snatched the knife from the hands of the accused. She also rushed to the spot and gave water to her husband. Then she states that her husband was taken to the house of Soyam Pocham and there, he succumbed to injuries. In the cross-examination of this witness, an attempt was made to suggest that she is not an eye witness of the incident. On perusal of the testimony of this witness, we find that there is no reason to discard the version of this witness who is natural and reliable eye witness of the incident. Merely because P.W. 5 Rambai is the wife of victim and an interested witness, there is no reason to discard her version which is otherwise truthful account of the incident reflecting the act of the accused. Though an attempt was made to suggest that the witness was referred to the weapon as ''churi'' and the weapon allegedly used in the commission of crime is knife, the witnesses are not trustworthy. We unable to accept the submission on the backdrop of the fact that the witnesses are rustic tribals, the reference to the weapon by this witness as ''churi'' cannot be a ground to discard her version. Version of these eye witnesses leaves no doubt to say that the accused/appellant is author of the crime. The complicity of the accused/appellant in the crime in question is established beyond reasonable doubt.

On the backdrop of the medical evidence, it reveals that the accused gave successive blows of sharp edged weapon knife on the vital parts of the body resulting instantaneous death of the victim. Though an attempt was made to put a defence of alibi in the form of clinching evidence of the eye witnesses establishing the presence and the role played by the accused, the defence of alibi is wholly unacceptable.

Considering all these aspects, we have no hesitation to say that the accused/appellant is guilty of committing murder of the deceased Malaiyya Narsaiyya Atram. The learned Additional Sessions Judge, Gadchiroli committed no error in convicting the accused/appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life. The appeal, thus, being thoroughly meritless, deserves to be dismissed. In the result, the appeal is dismissed.

The fees of learned counsel appearing for the appellant is quantified at Rs. 5,000/-.