1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. [CASE NUMBER] [ENTITY] s/o [ENTITY], aged about 70 years, Occupation : Labourer, R/o Shipgaon, Tq. Bhatkuli, District Amravati (In Jail). APPELLANT. Versus The State of Maharashtra, through its Police Station Officer, Loni, District Amravati. RESPONDENT. Mr. [ENTITY], Advocate for appellant, Mr. [ENTITY], Additional Public Prosecutor for respondent. CORAM : [ENTITY] & [ENTITY], JJ. DATED : NOVEMBER 20, 2009. JUDGMENT (PER [ENTITY], J.)
1} Being aggrieved by the judgment and order passed on th 19.1.2004 by the learned 4 Ad-hoc Additional Sessions Judge, Amravati in [CASE NUMBER], the appellant [ENTITY] s/o [ENTITY] (original accused) has preferred the present appeal.
The appellant/accused was charged for committing the offence punishable under [SECTION] of [ACT], i.e. committing murder of [ENTITY] and secondly, of causing hurt to [ENTITY] by means of a spear and thereby committing offence under [SECTION] of the [ACT]. The learned trial Court convicted the appellant/accused for the offence of murder and sentenced the appellant to undergo imprisonment for life and to pay a fine of Rs.1000/- and in default of payment of fine, to undergo simple imprisonment for three months. The appellant/accused was also convicted under [SECTION] of [ACT] and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.
200/- and in default, to suffer S.I. for 15 days.
2} The prosecution case in brief is as follows :-
One [ENTITY] lodged a report at Loni Police Station and stated that he was residing at Shivgaon and was cultivating his land. They were in all 3 brothers and they were residing separately.
The partition of the land was effected. The uncle of [ENTITY], namely, [ENTITY] was not happy with the partition. [ENTITY] was also not on talking terms with [ENTITY] and the other brothers. On 22.4.2003 [ENTITY] picked up quarrel on the ground of untethering the bullocks. It was further stated in the complaint that on 26.4.2003 father of [ENTITY], namely, [ENTITY] was sleeping on the cot near the cattle-shed. [ENTITY] was also sleeping in the cattle-shed. At about 6 O'clock in the morning [ENTITY] came to the cattle-shed with a spear and assaulted [ENTITY].
A hue and cry was made and on hearing the shouts, the other family members rushed out of the house and caught hold of [ENTITY]. In the scuffle, [ENTITY] delivered a blow by the spear which landed on the waist of [ENTITY] and [ENTITY] sustained injury. Many of the persons residing in that locality gathered on the spot. [ENTITY] died on the spot. On receiving the report, the same was reduced in writing and printed format FIR was prepared at Police Station Loni. The investigating machinery was set in motion. PSI [ENTITY] who was in-charge of the investigation at the relevant time referred the complainant who was injured in the assault to the Primary Health Centre for medical treatment. After examination of the complainant, the Medical Officer issued the certificate. The steps in the investigation, such as preparation of the spot panchnama, inquest panchnama, the recording of statements, forwarding the dead body for post-mortem examination and obtaining the P.M. report, etc. were taken by the investigating agency. The accused who was found on the spot having his clothes stained with blood was arrested. The spear which was also found on the spot was also seized. After completion of the investigation, the charge-sheet was filed for the offence under [SECTION] and being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. The defence of the accused was of total denial and false implication. The circumstances to prove the case against the appellant/accused which are relied by the prosecution are mainly as follows :-
I. Homicidal death of [ENTITY], II. The account of the eye-witnesses, III. The seizure of the weapon, i.e. spear, which was seized from the spot of incident, IV. The Chemical Analyser's report.
3} Mr. [ENTITY], the learned Counsel for the appellant, submitted that the so-called eye-witnesses of the prosecution, namely, [ENTITY] and [ENTITY] are the son of deceased and daughter-in-law of the deceased respectively. He further submitted that because these witnesses are closely related to the deceased, they are interested witnesses and it is not safe to rely on the testimony of such interested witnesses. He further submitted that the prosecution has also failed to bring any motive in the said crime. He further submitted that the appellant was cultivating his own land and the partition was effected long back prior to the incident and as such, there was no reason for the appellant to commit the crime in question. Mr. [ENTITY] further submitted that looking to the nature of the injury, it is the case of a single blow and as such, the offence would be not an offence punishable under [SECTION] of [ACT] but it would be an offence punishable under [SECTION], as there was no premeditation and there was only a single blow.
4} Per contra, Mr. [ENTITY], the learned Additional Public Prosecutor for the respondent, supported the judgment and order of the trial Court and submitted that the evidence brought by the prosecution is cogent, reliable and is sufficient to hold the appellant/accused guilty of the charge for the offence punishable under [SECTION] of the [ACT].
5} The first and foremost question for our consideration is whether the death of deceased [ENTITY] is homicidal one. The prosecution in order to prove the death being homicidal one, placed reliance on the medical evidence as well as the ocular testimony of the witnesses. Firstly, we shall deal with the medical evidence.
6} PW.7 Dr. [ENTITY] is the witness of the prosecution who has proved the post-mortem report. Dr. [ENTITY] in his testimony deposed that he found incised wound over left supra clavicular region with clear-cut margins of the size of 2" x " x 2 inch deep. He further deposed that the injury was vertical in direction. The internal corresponding injury as deposed by Dr. [ENTITY] is an injury over pleura and left lung. The injury on left lung was incised over upper lobe of left lung having size 1" x " x 1". Dr. [ENTITY] further deposed that in his opinion, the deceased died due to shock due to injury to vital organ. He further deposed that the injuries mentioned in Exh.41, i.e. Post Mortem report at serial nos. 17 and 20(c) must have been caused due to single blow and a person can die on the spot if he sustains injury on lungs. He further deposed that the injuries as mentioned in Exh.41 are possible by blow of spear like [SECTION]'. The medical evidence was not seriously challenged by the defence. From the nature of the medical evidence in the form of P.M. report which is proved by Dr. [ENTITY], we have no hesitation to hold that [ENTITY] died homicidal death.
7} In so far as the next question about the complicity of the accused in the crime in question is concerned, we shall deal with the ocular testimony of the witnesses and the other circumstances. PW.1 [ENTITY] is the eye-witness and an injured witness in the assault made by the appellant/accused. PW.1 [ENTITY] deposed that the accused [ENTITY] was his uncle and deceased [ENTITY] was his father. PW.1 [ENTITY] in his substantive evidence stated that on the day of the incident, i.e. on 26.4.2003 his father was sleeping on a cot which was on the Ota situated outside the compound. He further deposed that on hearing shouts and cry of [ENTITY], i.e. the wife of his brother [ENTITY], he came in the compound and saw the accused near the cot of his father.
The accused was armed with spear. [ENTITY] tried to apprehend the accused by holding the spear from his hand and in that scuffle the accused assaulted [ENTITY] by means of the spear on his back and [ENTITY] sustained bleeding injury on his back. The other persons who gathered there, namely, [ENTITY] and [ENTITY], i.e. the brothers of [ENTITY] also tried to intervene and the accused tried to assault [ENTITY] by the spear but somehow [ENTITY] was successful in saving himself. The persons gathered there and caught hold of the accused. The weapon spear was lying on the spot. [ENTITY] thereafter along with [ENTITY] went to Police Station and lodged the report. Though this witness was put to a searching cross-examination, this witness was not shaken.
8} The next witness is PW.2 [ENTITY], who is the sister-in-law of PW.1 [ENTITY]. [ENTITY] deposed that on the day of the incident [ENTITY] was sleeping on a cot on Ota. In the morning at about 6 A.M. while she was sprinkling the water mixed with cow-dung, she saw the accused coming on the spot armed with spear and suddenly the accused started giving blows of the spear on the left side of neck of [ENTITY]. She raised alarms and on hearing the shouts, [ENTITY] Warghat immediately rushed to the spot. [ENTITY] also came from the house and tried to catch hold of the accused. In the scuffle, the accused gave a blow of spear on the back of [ENTITY]. The accused tried to assault by means of spear to the persons who gathered there on the spot. [ENTITY] who came on the spot overpowered the accused. She further deposed that [ENTITY] died on the spot and the spear was lying on the spot. In the cross-examination of this witness, the defence brought certain omissions, such as [ENTITY] was sleeping on a cot on the ota and she was sprinkling the water mixed with cow-dung near the ota at the time of the incident but these omissions are not material so as to discredit the version of the witness, neither they create any doubt about the incident and the act committed by the accused.
9} PW.4 [ENTITY], who came on the spot on hearing shouts of [ENTITY] corroborates the version of [ENTITY] PW.2. It was suggested to this witness that the accused has not made any assault on [ENTITY] and the suggestion was denied by the witness. Nothing tangible was elicited from the cross-examination of this witness.
10} PW.3 Dr. [ENTITY] is the witness who has examined [ENTITY] and issued medical certificate. Dr. [ENTITY] deposed that on 26.4.2003 he had examined [ENTITY] and found incised wound on lower side of back bone having size of 3 cm x 3 cm x 3 cm. He further deposed that the injury might have been caused by sharp object. PW.3 further deposed that the injury is grievous in nature and the injury is possible by spear like [SECTION]' which was before the Court. Since the testimony of PW.1 [ENTITY], who gave the detailed account and stated that he was assaulted by the accused on his back by means of spear stands corroborated by the evidence of PW.3 Dr. [ENTITY], we find that PW.
3 is a reliable witness. PW.1 [ENTITY] is not the eye-witness to the incident but he has seen the accused with the weapon in his hand standing near the cot of his father. PW.2 [ENTITY] is the eye-witness to the incident and her version is not at all shaken. We find that PW.2 [ENTITY] is a reliable witness.
11} Mr. [ENTITY], the learned Counsel for the appellant, submitted that the version of PW.2 [ENTITY] cannot be relied by referring to the cross-examination that she had not raised alarm when she saw the accused coming with spear. We are not in agreement with the submissions of Mr. [ENTITY] for the reason that the witnesses may react in different ways. There is no mathematical formula regarding reaction of a person who witnesses an assault. Some persons may raise shouts whereas some persons may be speechless due to shock.
In so far as the version of [ENTITY] is concerned, in our opinion, there is no reason to disbelieve this witness. Mr. [ENTITY] submitted that PW.1 [ENTITY], PW.2 [ENTITY] and PW.4 [ENTITY] are the interested witnesses being the close relations of deceased [ENTITY]. Mr. [ENTITY] submitted that PW.4 [ENTITY] was serving with the brother of [ENTITY], i.e. [ENTITY] and as such, he is also an interested witness.
12} We are not in agreement with Mr. [ENTITY], the learned Counsel for the appellant, for the reason that merely because a witness is related is no reason to discard his evidence. If the evidence of the witness is cogent, reliable and stands to the scrutiny, there is no reason to discard the version of the witness on the ground of relationship. The other circumstance which is relied on by the prosecution is the Chemical Analyser's report (Exh.14). The clothes of the deceased, the quilt and the spear were forwarded to the Chemical Analyser. The important fact to be noted from the Chemical Analyser's report is that the clothes of the deceased were stained with human blood. The soil collected from the spot which was forwarded to the Chemical Analyser was found to be mixed with the human blood. The clothes of the accused, i.e. [ENTITY], one Bengali shirt and cotton banyan were having blood stains. As per the Chemical Analyser's report, the clothes of the accused were having human blood of blood group 'A'. There is no explanation offered by the accused about the blood stains found on his clothes.
13} In our considered view, the learned Court below has correctly appreciated the evidence and there is no reason to interfere with the judgment and order passed by the learned trial Court. Mr. [ENTITY] submitted that the case being of a single blow and as there was no motive and premeditation, the offence against the accused may fall under [SECTION] of [ACT]. In view of the decision of the Apex Court in the case of Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh reported in AIR 2006 S.C. 3010, wherein it is observed by the Apex Court in paragraph nos.
16 & 17 as under :-
"16. We cannot accept the contention that whenever the death is on account of a single blow, the offence is one under [SECTION] and not [SECTION].
17. It would thus be seen that in all these cases, the accused landing a single blow was only one of the several circumstances which persuaded this Court to hold that the offence did not fall under [SECTION] but fell under [SECTION]. The fact that the accused gave only one blow, by itself, would not mitigate the offence to one of culpable homicide not amounting to murder. There are several cases where single blow inflicted by the accused, resulting in death have been found to be sufficient for conviction under [SECTION]. We may refer to a few of them, namely, Virsa Singh v. State of Punjab (AIR 1958 SC
465), [PRECEDENT], [PRECEDENT], Jai Prakash v. State (Delhi Administration) [1991 (2) SCC 32] and [PRECEDENT],"
and having regard to the weapon used by the accused and the injuries caused to the deceased, we are not in agreement with the submission of the learned Advocate Mr. [ENTITY] that the offence if proved would fall under [SECTION] [ACT].
14} In the result, the Criminal Appeal is dismissed.
JUDGE. JUDGE. J.