1

                 NON-REPORTABLE      

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1432 OF 2012

Kamlakar       .…Appellant(s)                  

Versus

State of Maharashtra       ….Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

1. The appellant herein was arrayed as accused No.1 in the

proceedings before the Sessions Case No.87 of 2005. Along with

the appellant,  five other accused, namely, accused Nos. 2 to 6

were also charged of the offences under Sections 147, 148 and

302  read  with  Section  149  of  the  Indian  Penal  Code  on  the

allegation  that  the  accused  persons  were  the  members  of  an

unlawful  assembly  and  pursuant  to  the  common  object,  had

committed  riot  and  armed  with  deadly  weapon  like  ‘katti’

committed murder of one Dhammanand,  on March 13, 2005 at

about 00.15 Hrs at Dhanegaon.  The accused did not plead guilty

of the charge and had sought that he be tried. The proceedings

2

was accordingly held in the Sessions Court at Nanded.

2. The learned Sessions Court having considered the matter in

detail, through its judgment dated August 16, 2006 has convicted

the appellant herein for the offence punishable under Section 302

of Indian Penal Code and the appellant was sentenced to suffer life

imprisonment and pay the fine of Rs.1,000/-, in default thereof, to

suffer rigorous imprisonment for three months.  He was, however,

acquitted of the charge under Section 147, 148 of Indian Penal

Code.  The accused Nos. 2 to 6 were, on the other hand, acquitted

of all the charges.  The appellant herein, therefore, claiming to be

aggrieved by the said judgment dated August 16, 2008 passed by

the Sessions Court was before the High Court of  Judicature at

Bombay, Aurangabad Bench, in Criminal Appeal No.814 of 2006.

The State of Maharashtra being aggrieved by the acquittal of the

accused Nos.2 to 6 had also assailed the judgment dated August

16, 2008 to that extent in Criminal Appeal No.683 of 2008.  The

High  Court  through  its  judgment  dated  August  14,  2009  has

dismissed both the appeals by confirming the judgment passed by

the Sessions Court.  Insofar as the challenge to the judgment of

the Sessions Court by the State  of  Maharashtra,  the same has

attained finality.  The accused No.1 who was the appellant before

the High Court, is before this Court in the present appeal.  The

3

delay of 797 days was condoned on January 30, 2012 and leave

was granted on September 14, 2012.  In the above background,

the conviction ordered by the Sessions Court and upheld by the

High Court in holding the accused No.1 alone guilty of the charge

would arise for consideration in this appeal.  

3.  In  that  background,  we  have  heard  Shri  Amit  Sharma,

learned counsel for the appellant, Shri Nishant R. Katneshwarkar

learned counsel for the respondent State and perused the appeal

papers.

4. The brief facts leading to the present situation is that all the

accused persons being residents of Dhanegaon were in a meeting

of Mahila Alpa Bhachat Gat near Bouddha Mandir wherein the

complainant  of  the  present  incident,  namely,  Baburao,  Kailash

and others were also present.  During the meeting on March 12,

2005  at  about  9.00  p.m.  the  electric  supply  went  off  all  of  a

sudden.  The appellant Kamlakar, is stated to have enquired with

Kailash alleging that he was the cause for disconnection of electric

supply, which led to exchange of abuses between the said Kailash

and the appellant Kamlakar.  The appellant pushed Kailash who

sustained injuries on his person.  At about 10.00 p.m., Sheshrao,

the father of  Kailash accompanied by Kailash went to Baburao

who  is  the  uncle  of  Dhammanand  and  lodged  a  complaint  at

4

Nanded  (Rural)  Police  Station.   The  said  incident  lead  to  a

situation  where  the  accused  raised  an  issue  as  to  why  such

complaint  was  lodged  and  on  having  enquired  with  the

Dhammanand why his brother Kailash started the quarrel, asked

Dhammanand to accompany them to settle the dispute amicably.

In that backdrop, at about 00.15 a.m. on March 13, 2005 the said

Baburao (PW-1), Rashtrapal (PW-8)  and others went to the house

of  Dilip  i.e.,  accused  No.3.   The  accused  Nos.5  and  6  were

standing at the door and prevented them from entering the house

and pushed them.  The accused No.2 -  Keshav,  accused No.3-

Dilip and accused No.4 - Digambar are stated to have caught hold

of Dhammanand in the house of Dilip and accused No.1 Kamlakar

who was armed with ‘katti’ inflicted the blow with the ‘katti’ on the

neck of  Dhammanand due to which Dhammanand died on the

spot  instantaneously.   The  said  persons  had thereafter  rushed

towards the complainant Baburao (PW-1) and Rashtrapal (PW-8)

to assault them but they fled away and went to Nanded (Rural)

police station and lodged the complaint.  The same was registered

as C.R.No.55 of 2005 and further investigation was held and the

charge sheet was filed.

5. Though the incident had occurred in the said manner and

the  allegation  was  against  all  the  accused  as  already  noticed

5

above, except the appellant-accused No.1, the remaining accused

have been acquitted.  The judgment passed by the Sessions Court

and confirmed by  the  High Court  in  so  far  acquitting  accused

Nos.2 to 6 has attained finality and as such the role of the said

accused need not be adverted to in this appeal.

6. In  the  above  backdrop,  the  consideration  required  to  be

made herein is as to whether the concurrent judgments passed by

the Sessions Court and the High Court in so far convicting the

accused  No.1,  namely,  the  appellant  herein  is  justified.   The

learned  counsel  for  the  appellant  while  assailing  the  judgment

would contend that the story of the prosecution that the appellant

had committed the murder of Dhammanand cannot be accepted.

In that regard, it is contended that even though the evidence of

Shri Baburao (PW-1) and Shri Rashtrapal (PW-8) is considered by

both the Courts as that of the eye witnesses to the incident the

same is not reliable,  It is contended that the said witnesses in

cross-examination have stated that they have not seen the carpet

spread on the cot and that the wooden cot shown in the map of

the spot panchnama is not visible unless one is to enter inside the

house of accused Dilip.  In that view, it is contended by him that

there  is  no  possibility  of  the  said  witnesses  having  seen  the

commission  of  murder  by  the  appellant.   It  is  his  further

6

contention that the recovery of the weapon used in commission of

the  crime  is  not  also  satisfactorily  established  and,  in  that

circumstance,  the  entire  consideration  made  by  the  Sessions

Court as also the High Court is not justified.  The learned counsel

for the respondent, on the other hand, has taken us through the

record  including  the  judgments  passed,   to  point  out  that  a

detailed consideration has been made with regard to the role of

the  appellant  and  in  that  circumstance,  both  the  Courts  have

arrived  at  the  appropriate  conclusion  which  does  not  call  for

interference.

7. In  the  present  facts,  with  regard  to  the  death  of

Dhammanand , after the incident,  the inquest panchnama was

prepared and the dead body was sent to the Civil Hospital Nanded

for post mortem examination.  Dr. Naresh Zanjhal who performed

the autopsy on the dead body was examined as PW-11 and the

post mortem notes was marked as Exh.76.  He has indicated the

cause of death as “haemorrhagic shock due to chop wound over

neck”.  The same would indicate that it was a homicidal death.

The blood-stained clothes of the deceased and also blood stained

‘katti’  was  recovered  at  the  instance  of  the  appellant  from his

house  in  the  presence  of  panchas  under  the  memorandum

panchnama which are marked as Exhibits 39 and 40, which was

7

in the presence of Subhash Waghmare (PW-13).   The same had

been sent to the Regional Forensic Laboratory, Aurangabad and a

report  had  been  obtained.   In  that  circumstance,  when  the

weapon used for committing the offence had been recovered in the

manner  known  to  law  and  the  appropriate  reports  were  also

obtained,  the  contention  on  behalf  of  the  appellant  that  the

recovery of the weapon is not believable cannot be accepted.

8. Insofar as the evidence of eye witnesses, namely, Baburao

(PW-1) and Rashtrapal (PW-8) the same indicates that the entire

sequence of the events as contained in the complaint have been

stated.  It is no doubt true that PW-1 in his cross-examination

had  stated  that  the  wooden  cot  in  the  map  i.e.,  the  spot

panchnama is not visible unless one enters into the house of the

accused  No.3  Dilip.   He  has  also  stated  that  the  victim

Dhammanand was killed on the spot by the Kamlakar by inflicting

blow with’ katti’.  Further, the said witness has also been chased

with intention to attack.  As rightly taken note by the Sessions

Court as well as the High Court,  that even if it is assumed that

the  accused Nos.5  and 6  were  at  the  door  and had prevented

Baburao (PW-1) and Rashtrapal (PW-8) at entrance of the door of

the house of accused No.3 - Dilip, it would only indicate that they

were standing at the threshold of the entrance to the house and in

8

such circumstance there was every possibility of  witnessing the

occurrence  of  the  incident  in  the  house  of  the  accused.

Furthermore,  all other aspects relating to the earlier sequence of

events which had led to the incident having occurred in the house

of Dilip is taken note and when the appellant as also the deceased

were inside the house and in the circumstance the death on the

spot had occurred, the death in the manner as contended by the

prosecution and spoken to by PW-1 and PW-8  is to be accepted.

Further the said witnesses PW-1 and PW-8 were also chased by

the  appellant  from the  very  spot  where  the  incident  occurred.

That apart, the ‘katti’ was recovered and the forensic report also

supported the case of the prosecution.

9. In that circumstance, having reappreciated the evidence to

the extent it is required and a detailed perusal of the judgment

passed  by  the  Sessions  Court  as  also  the  High  Court  would

indicate  that  both the  Courts  have adverted to the evidence in

detail  and  have  ultimately  arrived  at  the  conclusion.   In  such

circumstances,  when the  concurrent  judgment  based upon the

evidence  have  found  the  appellant  to  be  guilty  of  the  charge

alleged against him in committing the murder and had convicted

him under Section 302 of the Indian Penal Code, we see no other

reason to take a different view.

9

10. Accordingly,  the appeal being devoid of  any merit,  stands

dismissed.

……………………….J.                                                (M.R. SHAH]

……………………….J.                                                     (A.S. BOPANNA]

New Delhi, May 31, 2019