PRABHAKAR MANIKRAO SALAME Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Feeling aggrieved by the judgment and order dated 4th September, 2006 passed by 7th Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No.292/2004, the appellant has filed this appeal challenging the said order. The appellant has been convicted by the said order for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for one month. The appellant had allegedly committed murder of his brother Shri Gajanan (hereinafter referred to as "deceased") by means of a wooden rafter (Ubhari).

(2.) The alleged incident had occurred on 19th April, 2004 at about 15-00 hours at village Khairi (Gosavi) within the jurisdiction of Kalmeshwar Police Station, DistrictNagpur. The First Information Report was lodged by Dadarao Salame-the Uncle of the appellant and the deceased. The incident was witnessed by the family members of the deceased and the appellant. Manikrao Salame-father of the appellant and the deceased, Godavari Salame-mother, Sunanda Salame-wife of brother of the deceased, Piraji Salame-Uncle, Lankesh Salame-son of the deceased and Nilu Salame-daughter of the deceased had, according to the prosecution case, witnessed the incident. The incident had occurred in front of house of the deceased and the appellant. It is around 3-00 to 4-00 p.m. that the appellant had come there and started abusing the deceased. The deceased had questioned the propriety of the untoward act on the part of the appellant. It is at this point of time that the appellant had lifted a wooden rafter (Ubhari) and had assaulted the deceased. The deceased had sustained multiple injuries. He was taken in a auto-rickshaw by his father. On the way to the hospital, Manikrao Salame met his brother Dadarao Salame-the first informant herein. Manikrao Salame told his brother Dadarao that the deceased had been assaulted by the appellant on account of domestic quarrel. Dadarao and Manikrao Salame, both decided to take the deceased to Mayo Hospital for immediate treatment. However, unfortunately, after traveling about 8 K.Ms. from their village, the deceased succumbed to his injuries. The matter was reported to police by Dadarao. The police had registered an offence vide F.I.R. No.93/2004 and further investigation started. During the course of further investigation, statements of the witnesses were recorded, panchanamas were drawn and the weapon allegedly used by the appellant for assaulting his brother-the deceased was seized on 19-4-2004 and panchanama to that effect was also drawn. The dead body was sent for Post-Mortem Examination. During the course of Post-Mortem Examination, the Medical Officer had noticed as many as 14 external injuries on the person of the deceased and had opined that the deceased had died due to head injury. It may be noted here that there were in all six injuries under the scalp corresponding to the external injuries mentioned in Column No.17 of the Post-Mortem Report. After committal of case, trial commenced before the learned 7th Ad hoc Additional Sessions Judge, Nagpur. As already stated, the appellant has been convicted and sentenced by the learned 7th Ad hoc Additional Sessions Judge, Nagpur.

(3.) The argument of learned Advocate Shri R.M. Patwardhan for the appellant and learned Additional Public Prosecutor Shri T.A. Mirza for the respondent-State were heard on 29th March, 2011 and the judgment was reserved. During the course of argument, it was submitted by Shri Patwardhan that majority of the eye-witnesses are hostile and they have not supported the prosecution case. It was submitted that the deceased had died due to head injury. It was brought to our notice by the learned Advocate for the appellant that the learned trial Court had relied upon the evidence of P.W.6-Master Lankesh and P.W.7-Ku. Nilu, who are children of the deceased. It was vehemently submitted that the reading of evidence of P.W.6-Lankesh would clearly show that if at all it is believed that there was assault on the part of the accused by means of wooden rafter (Ubhari), the appellant had inflicted only one blow on back side of head of the deceased. Shri Patwardhan has submitted that medical report is contrary to the evidence of eye-witness Sunanda. As far as evidence of P.W.7-Nilu is concerned, it was submitted by Shri Patwardhan that this witness had also stated that one blow was inflicted on the head and thereafter the accused had inflicted two more blows on the deceased. It was brought to our notice that the Medical Officer P.W.12-Dr. Shailendra Dawane has stated in his evidence that as many as 14 external injuries were found and most of the injuries were either contused wounds, or lacerated wounds.