SHIVSHANKAR KESORAO TIJARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant Shivshankar Kesorao Tijare was tried for committing murder of one Prabhudas Sitaram Gadhave in Sessions Trial No. 11 of 1997 before the Additional Sessions Judge, Bhandara. THE prosecution examined in all ten witnesses including Ayodhya Prasad (PW-5), Ramchandra Chaudhari (PW-6) as eye-witnesses, Munna Ramji Meshram (PW-2) to whom the appellant is alleged to have made confession, Dr. Mankar (PW-9), Gopal Tangale (PW-7) as panch witness in whose presence weapon of assault and clothes i. e. Manila of the appellant came to be seized under Seizure Memo (Exh. 33-A) in pursuance of disclosure statement vide memorandum (Exh. 33) made by the appellant and PSI Ranganath Unde (PW-10), who conducted investigation in the matter. Learned Additional Sessions Judge by judgment dated-23rd April, 1999, convicted the appellant for offence under Section302 of the Indian Penal Code and sentenced him to imprisonment for life and to pay a fine of Rs. 1,000/- in default, to undergo R. I. for one year. This judgment of conviction and sentence is under challenge in this appeal.

(2.) THE incident which gave rise to the prosecution against the appellant took place on17-11-1996 at about7. 30 a. m. at Mouza Dewhada which comes under Tahsil Mohadi, District Bhandara which is within the jurisdiction of Police Station, Mohadi. THE houses of the appellant and victim Prabhu Gadhave are in close vicinity. Towards the western of their houses, there is a house of one Balraj Pentmidiwar and in front of his house there is open Courtyard. THE Courtyard of the house of this person is adjoining to the Courtyard of deceased Prabhu Gadhave. THE houses of witness Ayodhya Prasad (PW-5) and Ramchandra Chaudhari (PW-6) are towards the Northern side of the house of deceased Prabhu Gadhave. THE witness Balraj Pentmidiwar (PW-4) on17-11-1996, at about7. 30 a. m. saw deceased Prabhu having killed and his body was lying in open Courtyard. His clothes were stained with blood. He immediately went to the house of Police Patil Shri. Dayaram Kamble and told him the fact that deceased Prabhu was lying in the Courtyard. THEn Dayaram Kamble and Sarpanch Zagduji Budhe came to the spot and they saw that there were injuries on the neck, near ear of deceased Prabhu Gadhave and when asked witness Ayodhya Prasad (PW-5), he told that there was scuffle between deceased and the appellant and the appellant had assaulted deceased Prabhu with Barchi. He, therefore, confirmed the fact and went to Police Station, Mohadi and lodged the report (Exh. 18 ). Police registered offence vide Crime No. 129/1996 on that report and Police Officer PSI Ranganath Unde (PW-10) proceeded to the place of occurrence and prepared spot panchanama (Exh. 22 ). He also drew inquest panchanama and sent the dead body to Medical Officer, Tumsar for postmortem. THE appellant was arrested and when interrogated, he made disclosure statement in respect of Barchi, stick and his clothes vide memorandum (Exh. 33) and then in pursuance of that Barchi, Article No. 13, Stick, Article No. 14 and Manila, Article No. 12 came to be seized on being produced by the appellant under Seizure Memo (Exh. 33-A ). THE property that came to be seized was sent to Chemical Analyser. THE Chemical Analyser submitted the reports (Exhs. 41 and 42 ). After completing investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Tumsar, who committed the case to the Court of Session. Before the learned Sessions Judge, the appellant pleaded not guilty to the charge and claimed to be tried. His defence is that of total denial. At the trial, the prosecution led evidence of witnesses Ayodhya Prasad (PW-5), Ramchandra Chaudhari (PW-6), Dr. Mankar (PW-9), Gopal Tangale (PW-7), Munna Ramji Meshram (PW-2) and Investigating Officer Ranganath Unde (PW-10 ). THE learned Sessions Judge accepted the evidence and found that the offence under Section302 is brought home to and accordingly the appellant was convicted for the said offence and was sentenced as stated earlier.

(3.) THESE injuries were ante mortem in nature. He also noted on internal examination corresponding injuries as hematoma on the left lateral side of parietal region which was corresponding to the external injuries Nos. 2 and 3 shown in column No.17. He also noticed 300 ml of clotted blood in right lung and left side of thoraxic wall, lungs shunken. According to doctor, this injury is possible due to injury No. 1. He also found that left carotid artery punctured and clotted blood is present. This injury was corresponding to injury No. 1. According to him, injuries No. 1, 2 and 3 were fatal and sufficient in ordinary course of nature to cause death. THESE injuries were possible due to sharp object like Barchi, Article No. 13 as also stick, Article No. 14 and accordingly he gave his opinion vide Certificate (Exh. 48) when the weapons were referred to him. He opined that cause of death was due to hemorrhagic and neurogenic shock as a result of injury to vital organ like brain. It was suggested to Medical Officer by the defence that the injuries No. 2 and 3 are possible due to fall on running on the sharp edged weapon. The Medical Officer has stoutly denied the suggestion. The doctor has stated that injuries No. 2 and 3 are caused to brain and, therefore, the patient died. He stated in his cross-examination that the injuries No. 2 and 3 shown in column No. 17 are possible due to hitting with Barchi. He also stated that if two persons are quarrelling then the injuries are not possible. It is, therefore, clear from the nature of cross-examination of Medical Officer that the factum of injuries sustained by the victim is not denied. The Medical Officer has totally ruled out the possibility of the injuries being caused by falling a person who is running. Therefore, there is no hesitation in accepting the medical evidence which clinchingly establishes the fact that the victim died homicidal death and that too on account of multiple injuries, severe and serious in nature caused as a result of assault with the weapon namely Barchi, Article No. 13 and Stick, Article No.14. The witness Ayodhya Prasad (PW-5) in his evidence identified Barchi, Article No. 13 shown to him and he has emphatically stated that the accused had beaten the deceased with this Barchi. He has also stated that while deceased was beaten with this weapon, there was a wooden stick to the weapon Barchi. The other eye-witness Ramchandra Chaudhari (PW-6) also identified Barchi, Article No. 13 and claimed that the deceased was assaulted by the accused with this Barchi. The evidence of both these witnesses in respect of identification of weapon namely Barchi, Article No. 13 has gone unchallenged. It is significant for the fact that as per the report of Chemical Analyser (Exh. 41), human blood of blood group "b" was detected on Barchi, Article No.13. The blood group of the blood of the deceased as per the report of Chemical Analyser is "b". Therefore, identification of the weapon Barchi, Article No. 13 is relevant for the reason that human blood having blood group "b" which is the blood group of blood of deceased was detected on it. This further establishes that the injuries were caused by inflicting blows with the Barchi, Article No. 13, on the person of victim Prabhu Gadhave. Therefore, this reinforces the conclusion that the deceased died homicidal death.