BASAPPA BASHYA SHIRUGAPPA VIJAPURE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant -accused challenges the order dated 28 -2 -1990 passed by the IV Additional Sessions Judge, Solapur in Sessions Case No. 294 of 1989 holding the appellant - accused guilty for offence punishable under section 302, I.P.C. and sentencing him to suffer life imprisonment and to pay a fine of Rs.500/ - in default S.I for 6 months and holding him guilty for an offence punishable under Section 324 I.P.C. and sentencing him to suffer R.I. for one year and to pay a fine of Rs. 500/ - in default S.I. for 3 months.

(2.) THE facts giving rise to the trial and this appeal are thus:

(3.) - Bhimabai, P.W. 10 - Padmabai and P.W. 8. - Prakash. In addition to this evidence, the prosecution also relies on further corroborating circumstances in the shape of arrest of the accused immediately after the incident and the presence of blood on his clothes and the weapon of assault. The Additional Sessions Judge has held the evidence of these three eye witnesses as trustworthy and reliable. It is not in dispute that P.W. 4 - Bhimabai is the wife of deceased Subhash and the sister of P.W. 10 Padmabai. It is also not in dispute that at the time of the incident these two sisters and the deceased along with their kids had retired to bed in the same room. P.W.4 - Bhimabai and P.W.10 - Padmabai have stated in their respective evidence that at the early morning deceased Subhash, on hearing the knocks at the door, opened the door and the accused stepped into the room. These sisters have further deposed that at that time the electric bulb was burning in the room and the accused occupied the seat near the head of the deceased and the accused was insisting that Padmabai be sent along with him. It is further in their evidence that deceased Subhash told the accused that as Padmabai was brought from the house of her brother, she could be sent only with his permission. Both these sisters then further stated on oath that thereupon the accused stood up and took out a dagger from his waist and then assaulted Subhash on his chest. These two sisters further deposed that on receiving the blow Subhash tried to get up from the bed but the accused again inflicted a blow on his back and Subhash fell down on the ground with serious bleeding injuries and died instantaneously. It is further in their evidence that on seeing this assault, they both raised shouts and tried to run out of the house but the accused inflicted blows on their persons also. These two sisters finally stated that they came out of the house and raised hue and cry and P.W. 8 - Prakash then came out of the house and he chased the accused. The evidence of these two sisters P. W. 4 - Bhimabai and P.W. 10 - Padmabai has remained unshattered in the cross examination. Nothing has been brought on record so as to disbelieve the sworn testimony of these two sisters. They are admittedly inmates of the house and are near relatives. They were also in the same room and as such the presence of these two sisters at the place and time of the incident is most natural. None of these two sisters has any grievance against the present accused so as to involve him falsely. The incident in detail including the involvement of the accused as the assailant has been narrated by these two sisters on oath in a most natural and straight forward manner. The evidence of these two eye witnesses is not only consistent and supporting each other, but also does not suffer from any exaggeration, artificialness or contradiction. Both are emphatic in their evidence that it is the accused who has inflicted the blows on the chest and back of deceased Subhash. As it is not shattered in the evidence in respect of availability of light in the room at the time of the incident, the possibility of any of these two ladies in committing any mistake in identifying the assailant has been completely ruled out. It may also be noted that the accused after entering into the room had a talk with deceased Subhash and it is, therefore, natural for these two ladies to wake up from the sleep on hearing the knocks at the door and also the talk between Subhash and the accused. The evidence of these two ladies is, therefore, most natural and artless and is sufficient to inspire the confidence. The Additional Sessions Judge, in our view, is perfectly right and justified in keeping reliance on the evidence of these two eye witnesses for holding the appellant -accused guilty of the alleged offence. Further both P.W. 4 - Bhimabai and P.W. 10 - Padmabai are the injured ladies and as per their evidence and the evidence of P.W. 5 - Dr. Ganu (Exhibit 24) together with the Medical Certificate (Exhibits 34 and 35), they have received the blows at the hands of the present accused. The sworn testimony of these two ladies in respect of the incident and the, involvement of the accused as killer of deceased Subhash is, therefore, further corroborated by the fact that these two ladies had received the injuries at the time of the incident and the learned Additional Sessions Judge is, therefore, right in keeping reliance on the sworn testimony of these two eye witnesses in respect of the whole incident. 4. In addition to the evidence of these two eye witnesses, the prosecution has also adduced the evidence of P. W. 8 - Prakash (Exhibit 39). The witness stays in front of the house of the deceased and as such on oath he stated that he had retired to bed in front of his own house at the time of the incident and at an early hours he noticed the accused knocking the door of deceased Subhash. It is further in his evidence that he himself made the injury with the accused as to how he came there at an odd hour. It is further stated on oath by the witness that he heard the shouts and hue and cry of Bhimabai and Padmabai and he then saw the accused running away and then he started chasing the accused. It is further stated that he also met two police constables including P.W. 11 - Satish Deshpande and all of them chased the accused and ultimately accosted him in the campus of the spinning mill. P.W. 12 - Narsingh Rajput is a watchman of the spinning mill and he has also stated in his evidence that the accused with a weapon in his hand entered into the campus and he along with P.W. 8 - Prakash accosted the accused and the accused was then taken to the police station by P.W. 11 - Satish Deshpande. The evidence of P.W. 8 - Prakash has also not been shattered in cross examination and nothing material has been brought on record so as to disbelieve his sworn testimony. The witness admittedly is a next door neighbour and it is but natural for him to recognise the cries and shouts of Bhimabai and Padmabai and also to chase the accused when he noticed him running away with a dagger in his hand. The evidence of P.W. 8 - Prakash has, therefore, been rightly believed and it sufficiently and materially corroborates the story of the prosecution. The Additional Sessions Judge is, therefore, right in holding the evidence of these three witnesses as sufficient to involve the accused as the assailant and to prove the authorship of the injuries on the deceased and the two ladies against the accused.