Subhash Maruti Avasare Vs. State of Maharashtra  Insc 687 (19 October 2006)
Sinha & Dalveer Bhandari
out of S.L.P. (Crl.) No.710/2006) S.B. Sinha, J.
herein has been found guilty of commission of murder of one Baban alias Babdya
along with one Sunil Maruti Avasare, Rakesh Tukaram Pawar, Jitendra Bappa Barawkar
and Umesh Babanrao Khutwad who also took part in the assault, however, were
convicted under Section 323 of the Indian Penal Code.
first informant is one Ratnabai Shivaji Pawar, the mother of the deceased. She
was a maid servant. Her husband was working in a quarry.
deceased was working as a fitter.
herein is known to the family of the deceased. He is a friend of the accused
No.1. He went to the house of the deceased and inquired his whereabouts. He was
not there at that time. When the deceased came back to his house, his mother
informed him thereabout to which he had allegedly disclosed that the accused
No.3, Rakesh Tukaram Pawar had asked him to provide a bottle of bear. He had
refused whereafter, he was slapped.
attempt was also made to assault him with a knife, but he had run away.
day of incident, i.e., 30.10.1996 at about 6.30 p.m., the deceased had gone to a clinic of a doctor with his
wife Renuka for medical check-up of his son Umesh who was ailing. After some
time Renuka came back running to the house and informed the informant (P.W.1),
that some persons have picked up a quarrel with her husband in front of the hospital of Dr. Babar. The informant ran to the spot and found that the accused
No.2, Jitendra Bappa Barawkar had caught hold of the hands of the deceased from
his back side; whereas accused No.1, Umesh Babanrao Khutwad was holding a knife
in his hand. Appellant herein caught hold of the neck of the deceased and
instigated the other accused to kill him. Accused No.1 stabbed the deceased,
whereupon he fell down. Accused No.4, Sunil Maruti Avasare, and accused No.5, Rakesh
Tukaram Pawar, also assaulted him with kicks and fist blows. The first
informant tried to intervene. She was asked not to do so. Her husband, Renuka
and son-in-law also came there. The accused persons ran away in the meanwhile.
The deceased was taken to the local hospital and then carried to Sassoon Hospital. He breathed his last there.
the learned Trial Judge, the prosecution, apart from examining the first
informant, examined 15 other witnesses. P.W.10, Rajendra Bangal, was the
Medical Officer. He conducted the post-mortem examination of the deceased on
1.11.1996 and found 7 external injuries and 5 internal injuries.
cause of death was said to be "traumatic and hemorrhagic shock caused by
stab injuries." The learned Trial Judge relied upon the testimonies of
P.W.1, mother of the deceased and passed a judgment of conviction and sentence.
preferred by the accused were disposed of by the High Court directing :
Appeals filed by the accused Nos.1, 2 and 3 are dismissed. Their conviction and
sentence is maintained.
Appeals filed by the accused Nos.4 and 5 are partly allowed. Accused Nos.4 and
5 are acquitted of the offence under Section 302 of IPC but they are sentenced
under Section 323 of IPC and sentenced to suffer R.I. for one year and fine of
Rs.1000/- in default R.I. for two months.
the accused to surrender to the concerned Authorities within four weeks from
today. After they surrender their bail bonds shall stand cancelled. If the
accused do not surrender, the trial court may take proper steps to send them to
custody for undergoing sentence.
Accused will be entitled for set off as per the Rules." Contention of Mr.
K. Radhakrishnan, learned Senior Counsel for Appellant, in regard to the
evidence of P.W.1 was that it was not possible for her to witness the occurrence
as she had been informed about the incident by P.W.2, Renuka, the wife of the
deceased. Our attention was drawn to the fact that P.W.2 was pregnant and,
thus, was not expected to cover the distance within a short time as the road
was 'sloppy'. It was, thus, likely that Renuka had taken some time to run back
to her house, inform the first informant and then again come back to the place
distance between the place of incident and the house of P.W.1 is said to be '5
minutes walking distance', being about 500 ft. A lady whose husband was being
assaulted, despite being pregnant, would take the risk of running to her house
and come back with her mother-in-law. Similarly, the mother of the deceased
must not have lost any time to be at the place of occurrence with a view to
save her son.
it is not disputed, had accompanied the deceased as their son was ailing. When
the accused persons surrounded the deceased, she being a worried person must
have started running. Presence of the accused persons at the place of
occurrence, as was stated by P.W.2, cannot be said to be wholly unreliable.
Radhakrishnan would submit that grudge allegedly borne by accused No.3, cannot
be held to be sufficient for causing murder of the deceased. We must notice the
status of the families of the deceased and Appellants. They belong to the lower
strata of the society. As had been disclosed by the deceased, P.W.1, the
accused No.3 wanted to assault him then and there on his refusal to offer a
bottle of beer. However, on that occasion he saved himself by running away from
the place. We do not find any reason to disbelieve the testimony of P.W.1 that
the accused No.3 had been nurturing grudge against the deceased and had, thus,
argument of Mr. Radhakrishnan is that no blood stain was found on the clothes
of P.W.1 and her husband, although they had taken him to the hospital. Death of
the deceased being homicidal in nature is not in dispute. It has also not been
disputed that the deceased was taken to the hospital by the prosecution
witnesses. Only because no blood stain was found on the clothes of P.W.1 and
her husband, the same by itself may not be sufficient to discredit them fully.
The P.S.O, Baburao Rajaram Nagrale, who took the injured to the hospital,
examined himself as P.W.9. He inquired from the injured his name as also the
name of his assailants. The deceased disclosed the names of accused Nos. 1, 2
and the appellant herein as his assailants. He stated that two other persons
have also assaulted him and a 'Yadi' to the said effect was prepared by P.W.9.
Except giving a suggestion, he had not been cross-examined on behalf of
Appellant on the said point. There was no reason for the said witness to depose
falsely before the court. 'Yadi' which was prepared by him was a
contemporaneous document which can be relied upon.
of knife at the instance of the accused has also not been disputed. Blood
stained clothes were also recovered from all the accused.
blood group of the deceased was 'O' and the same blood group was found on all
the seized articles. As per Exhibit 64, blood group of Jitendra Bappa Barawkar,
accused No.2 was 'AB' and blood group of Sunil Maruti Avasare, accused No.4 and
the appellant was 'O' and that of Rakesh Tukaram Pawar, accused No.5 was 'A'.
Blood group of Umesh Babanrao Khutwad, accused No.1 was also 'A'. It may be
placed on record that they were arrested immediately and the blood stained
clothes had been recovered from all of them.
furthermore not in dispute that the First Information Report was lodged
principal contention of Mr. Radhakrishnan that Appellant herein was suffering
from a compound fracture and his leg was plastered, which has been admitted by
P.W.1, cannot be accepted. The learned counsel would submit that having regard
to the provisions contained in Section 58 of the Indian Evidence Act, it was
not necessary for the appellant to prove the doctor's certificate which was
dated 27.4.1996 and thus, the same should have been taken on record and marked
as an exhibit. We do not know under what circumstances Appellant produced the
certificate which is dated 27.4.1996. Admittedly, it was not proved. The doctor
issuing the certificate was not examined. Appellant raised a plea of alibi. It
was, therefore, for him to prove his defence. He failed to prove the same. If
the evidence of P.W.1 is to be accepted on the said point, the same should be
considered in its entirety. Apart from the fact what was the form of question
put to her is not known. The statement of P.W.1, as recorded by the learned
Trial Judge, is as under :
was plaster to acc No.3 at the time of this incident. It is denied the accused
No.3 was not able to walk properly at the time to this incident." If he
was not present at the time of occurrence or was suffering from a compound
fracture, it was expected that the questions to the same effect would be put to
the Investigating Officer. It was not done. Such a plea should have been taken
at the first instance before the Court of Chief Judicial Magistrate when he was
produced before him for the first time. If he had already been suffering from a
compound fracture on the date of occurrence, i.e., 30.10.1996, we fail to
understand why he had procured the certificate of an earlier date, i.e.,
27.4.1996. Even the purported admission of P.W.1 taken in its entirety would go
to show that Appellant was in a position to walk. Six months' time, even
otherwise, is sufficient for healing up of an ordinary fracture, if any. By mere
filing of a document, its contents are not proved. A certificate issued by an
expert should be brought on record by examining him.
findings of fact have been arrived at by the courts below as against Appellant.
The learned Sessions Judge has taken pains to analyse the evidence of the
prosecution witnesses. The High Court has also examined the matter at some
approach of the learned Sessions Judge and the High Court in regard to the defence
of Appellant may be different, but it is not of much significance inasmuch as
the plea of alibi on the part of Appellant has been considered at some length.
also not of much significance as to what exact role Appellant had played.
Whether he had instigated the accused No.2 to kill the deceased or had caught
hold the neck of the deceased, would not be of much significance as his
presence is not to be disbelieved thereby. Evidently, he had some role to play.
Both the courts below have found some overt act on his part. We do not find any
reason to disagree with the findings of the learned Sessions Judge as also the
High Court. We accept the same.
therefore, dismiss the appeal.