1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 32 OF 2009 1. Subhash s/o Limba Khandekar, Age 45 years, Occu.Agril., 2. Nagnath Subhash Khandekar Age 22 years, Occu.Agriculture, Both r/o Yeoti, Taluka and District Osmanabad ..APPELLANTS VERSUS - The State of Maharashtra ..RESPONDENT Mrs S.S.Jadhav, Advocate for appellants Mr B.V.Wagh, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 2nd December, 2010 ORAL JUDGMENT ( PER P.V.HARDAS, J.) 1. The appellants, who stand convicted for an offence punishable under Section 302 read with sec.34 of the Indian Penal Code, Section 323 read with sec.34 of the Indian Penal Code, Section 324 read with Sec.34 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/- in default to undergo simple imprisonment for one month, simple imprisonment for one month and to each pay fine of Rs.500/- in default of which to undergo simple imprisonment for 10 days, and simple imprisonment for six months and to each pay fine of Rs. 2 500/- in default of which to undergo simple imprisonment for 15 days, by the Additional Sessions Judge, Osmanabad by judgment dated 12.1.2009 in Sessions Case No.21/2008, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P.W.6 Ashok Atram, an A.S.I. attached to the Dhoki Police Station recorded the complaint of P.W.3 Hari on 30.8.2007 at Exh. 39. On the basis of the complaint of P.W.3 Hari at Exh.39, an offence vide Crime No.168/2007 came to be registered against the accused. Investigation of the said crime was entrusted to P.W.8 P.S.I. Bhange. P.S.I. Bhange (P.W.8) who was attached to the Dhoki Police Station was entrusted with the investigation of the said crime. It appears that one Narayan had come to the Police Station and had given information regarding the murder of his mother. Accordingly, P.W.8 P.S.I. Bhange and the other staff reached the scene of the offence and saw the dead body of deceased Manubai. An inquest panchnama at Exh.37 came to be drawn of the dead body in the presence of witnesses. The scene of the offence panchnama at Exh.36 came to be drawn in the presence of witnesses. The dead body of deceased was forwarded for post mortem examination and post mortem came 3 to be conducted by P.W.1 Dr.Ashok Maske. P.W.1 Dr.Ashok Maske noticed the following external injuries on the dead body of deceased Manubai. 1) 5 Contusions over neck above thyroid cartilage, reddish brown in colour. Size 2 x ½ cm, 2 x 1 cm, 2 ½ x 1 cm, 1 ½ x ½ cm, subcutaneous tissues compressed and ecchymosed, direction backward and upward; 2) Contusion over mid part of left ramus of mandible 1 x 1 cm brown colour; 3) Abrasion over submental region 1 ½ x 1 cms; 4) Contusion over right ramus of mandible 3 x 1 cms, reddish brown; 5) Abrasion over right side of neck below mastoid process 2 x ½ cm; 6) Abrasion over right side of neck 3 cms below lobule of right ear. He also noticed on palpation fracture of the tracheal ring. On internal examination he noticed fracture of two tracheal rings 2 cms x 1 ½ cms and also noticed the lungs congested. He opined that death of deceased had occurred four to six hours after her last meal and expressed opinion that cause of death was 4 asphyxia due to throttling. The post mortem report is at Exh.24. The report of the Chemical Analyzer at Exh.27 reveals that no poison was detected in the viscera. The provisional cause of death certificate is at Exh.28. 3. P.W.8 P.S.I. Bhange arrested the accused vide arrest panchnamas at Exhs.33, 34 and 35. Accused No.3 during custodial interrogation on 2.10.2007 expressed his willingness to point out the place where the sticks had been hidden. Accordingly, memorandum of Article 3 came to be drawn in the presence of P.W.7 Shyam. The accused led the Police and the panch to the field of the complainant and produced two sticks from the sugarcane crop. The said sticks came to be seized vide panchnama at Exh.48. Further to the completion of investigation a charge-sheet against the appellants came to be filed. 4. On committal of the case to Court of Sessions, trial Court vide Exh.9 framed charge against the appellants and two other accused for offence punishable under Sections 323 read with sec. 34, Section 324 read with sec.34, 302 read with sec.34 and Section 504 read with sec. 34 of the Indian Penal Code. Prosecution in support of its case examined eight witnesses. The trial Court accepted the prosecution evidence and accordingly convicted and sentenced the appellants while acquitting the other 5 accused. 5. In order to effectively deal with the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. 6. P.W.3 Hari states that deceased Manubai was his wife. He states that on the day of the incident P.W.4 Narayan had gone for grazing the cattle at about 9.00 to 10.00 a.m. At that time P.W. 3 Hari was in his house. At about 10.30 a.m. he went towards his field and P.W.4 Narayan told him that buffalo of accused No.1 was grazing in his field. Accordingly, P.W.4 Narayan drove the buffalo out of the field. Narayan had further disclosed that as the accused No.1 had let loose his buffalo, Narayan had also let loose the buffalo for grazing in the field of the accused. Accused Nos.1 and 3 came to the agricultural field and began abusing the complainant party as to why the had let loose the buffaloes for grazing in their field. Accused No.1 caught Narayan while accused No.3 took a stick and started assaulting Narayan. Since accused Nos.1 and 3 were not paying heed to the request of P.W. 3 Hari, P.W.3 Hari fled home and narrated the incident to his daughter-in-law, P.W. 5 Manjula and his wife deceased Manubai. Thereafter at about 1.00 to 1.30 p.m. deceased Manubai, P.W.3 Hari and P.W.5 Manjula went to their field and noticed P.W.4 6 Narayan grazing cattle. They went near Narayan and noticed that Narayan had sustained injury on his neck and below the eye. P.W.3 Hari, deceased Manubai and P.W.5 Manjula went to accused No.1 in order to question as to why they had assaulted P.W.4 Narayan. At that time accused No.3, who was the son of accused No.1, was also present there. Deceased Manubai slapped accused No.3. Accused No.1 asked P.W.3 Hari and others to go away and told P.W.3 Hari to wait for some time. P.W.3 Hari states that he waited under a neem tree while accused No.1 went towards village Yeoti. At about 3.00 to 4.00 p.m. accused No.1 returned to the field of P.W.3 Hari accompanied by accused Nos.2 and 4. At that time Hari and others were sitting beneath the neem tree. The accused started abusing them and accused No.3 was also present along with the other accused. The accused thereafter started assaulting P.W.3 Manubai and P.W.5 Manjula. Manubai started raising cries but Manubai did not permit her son Narayan to come to the scene of the offence stating that the accused may assault him also. Accused 1 and 3 were armed with Bamboo sticks and they had assaulted P.W.3 Hari as well as P.W.5 Manjula. As Manubai was raising cries, accused No.1 pressed the throat of Manubai. Deceased fell on the ground and thereafter accused No.1 caught the arm of deceased. Accused No.1 moved the arm of deceased by stating that she was pretending to have become unconscious. Accused Nos.1 to 4 went near the 7 deceased and P.W.3 Hari states that out of fear of the accused he and P.W.5 Manjula ran from the scene of the offence. He also states that the accused were searching for them and he went to the field of one Dasu Waghmare and had climbed a Neem tree. He states that while he was perched on the Neem tree he had seen that the accused were searching him. He further states that he did not descend the Neem tree till darkness and then went near the place where the deceased was lying. He noticed that Manubai had expired and then went to the village at about 10.00 p.m. He noticed Narayan and P.W.5 Manjula present in his house and narrated the incident to them and informed them that deceased had died. The neighbours questioned P.W.3 Hari as to who was present near the dead body and he told that nobody was near the dead body and accordingly Hari told his son Narayan to inform the Police and went near the dead body. He states that he was sitting near the dead body till sunrise and at about 7.00 to 8.00 a.m. Police from the Dhoki Police Station arrived at the scene and drew the panchnama. He states that the Police recorded his complaint at Exh.39. 7. In cross-examination he has admitted that accused No.1 is his brother. He has also admitted that his other brother Bharat died about five to seven years back. He states that out of the total family holding P.W.3 Hari owns about 8 to 9 acres of land 8 while 7 acres of land stands in the name of his brother Sahebrao. and one acre is shown in the name of accused No.1. He has denied the suggestion that there was a long standing dispute between P.W.3 Hari and accused No.1 in respect of the inequitable partition and allotment of ancestral land. He has admitted that one criminal case was filed at the instance of his brother Sahebrao against accused Nos.1 to 3 and one Balaji in respect of assault. He has denied the suggestion that the accused therein were acquitted. He has also admitted that one case was filed by his brother against accused Nos.1 and 2. He has admitted that the said proceedings are still pending. He has also admitted that one case has been filed by his son Narayan against accused 1 to 3. He has admitted that in respect of the incident of assaulting Namdev in the morning, he had not informed the Sarpanch. In respect of the incident in the afternoon he has admitted that he has raised cries. He has also admitted that he did not try to rescue his wife Manubai from the clutches of accused No.1. Omission has been duly proved that he had not stated in his complaint that about 1.00 to 1.30 p.m. he had also gone along with deceased and Manjula to the place where Narayan was grazing cattle. Omission has been duly proved that he had not stated in his complaint that he had accompanied his wife and Manjula to accused No.3. Omission has been duly proved that he had not stated in his complaint that the 9 accused had also assaulted the deceased. He was confronted with portion marked “A” from his supplementary statement wherein he had stated that accused No.4 had not come to the scene of the offence but was present in her agricultural field. He has denied to have stated portion marked “A”. 8. Prosecution has examined P.W.4 Narayan, son of P.W.3 Hari and son of deceased Manubai. P.W.4 Narayan states that P.W.3 is his father and on the day of the incident at about 9.00 to 9.30 a.m. he had taken his buffalo and goats for grazing in his field. He had also noticed a buffalo belonging to accused No.1 grazing in the vegetable crop in his field. He states that he drove the said buffalo out of his field and towards the field of accused No.1. He also stated that in order to retaliate, he had set free his bullocks for grazing in the field of accused No.1 at about 11.00 to 11.30 a.m. Accused Nos.1 and 3 came to their field and accused No.1 questioned Narayan as to why he had allowed his bullocks to graze in his field. Narayan retorted that as the cattle belonging to accused No.1 was grazing in his field, he had also allowed his cattle to graze in the field of accused No.1. He also states that there was an exchange of abuses between him and accused No.1. At that time accused No.3 came there running. He states that he fell accused No.3 on the ground and thereafter accused No.3 had dealt fist blows on his face. He had accordingly shouted in the 10 name of P.W.3 Hari and at that time P.W.3 Hari took a stick had dealt a blow of stick on his neck. On hearing his cries P.W.3 Hari came there and told the accused not to beat Narayan. He states that thereafter Hari went home and Narayan went to graze his cattle towards the stream. 9. He further states that thereafter P.W.3 Hari, Manubai and his wife P.W.5 Manjula had come to their field and they told him not to come with them. The three then went to the place where accused Nos.1 and 3 were present. At about 5.30 to 6.00 p.m. Manjula came near him and told him that she along with P.W.3 Hari and Manubai had been assaulted by accused No.1. He then states that in the evening he along with his wife, P.W.5 Manjula returned home and were waiting in their house for arrival of P.W.3 and deceased Manubai. At about 11.00 to 11.30 p.m. P.W.3 Hari returned home and informed them that Manubai had died. On hearing this all of them started crying and hearing them the neighbours came to their house. P.W.3 Hari asked P.W.4 Narayan to go to the Police Station and inform the Police. He states that he tried to telephone Rajabhau at Pune but could not contact him on telephone. Then he went to the house of one Ravindra for arranging for a vehicle but Ravindra was not willing to come along with his vehicle at night. He states that along with one Anba and Rajebhau he went to the house of Ravindra and thereafter by an 11 auto-rickshaw went to the house of one Dadarao Kupanwar. He states that he told Dadarao to call his brother Rajabhau at Pune and inform him about the demise of Manubai. He states that after going to the house of his maternal uncle Limba, he along with his maternal uncle went to the Ter Police Station. The Ter Police Station informed him to go directly to the Dhoki Police Station and accordingly he went to the Dhoki Police Station and informed the incident to the Police. He states that he along with the Police directly came to the field and reached the field at about 6.00 a.m. 10. In cross-examination he has admitted that on account of the objections of accused No.1 Vijubai, wife of his deceased uncle, P.W.3 Hari had not received the compensation in respect of the acquisition of the land. He has admitted that he does not know exactly when P.W.3 Hari reached the place when the altercation was going on between Narayan and accused No.1. He has admitted that P.W.3 Hari was standing at some distance from them. He has admitted that thereafter P.W.3 Hari returned home. He has further admitted in the cross-examination that P.W.3 Hari accompanied by P.W.5 Manjula and deceased Manubai came to the field at about 2.00 to 3.00 p.m. He has further admitted that Manjula narrated to him about the assault on them in the evening. he along with Manjula returned home. He has admitted 12 that he did not narrate the said incident to any villager. He has admitted not to have gone to the Police prior to the arrival of P.W. 3 Hari at the house. He has admitted not to have gone back to the field in search of P.W.3 Hari and his mother Manubai. He has admitted that he had narrated the incident to the Dhoki Police Station but they had not scribed his report. He has admitted that his statement came to be recorded on 1.10.2007. Omission has been duly proved that he had not stated in his previous statement that accused No.3 had scratched him on his mouth and neck. Omission has been duly proved that he had not stated that accused No.3 had dealt a blow of stick of sandal wood on the back of his neck. Omission has been duly proved that he had not stated in his previous statement that he along with Manjula were waiting for the arrival of P.W.3 Hari. Similarly, omission has been duly proved that he had not stated that Ravindra had declined to come with him because it was night. 11. Prosecution has also examined P.W.5 Manjula, who is wife of P.W.4 Narayan and daughter-in-law of P.W.3 Hari and deceased Manubai. She states that on the day of the incident her husband P.W.4 Narayan took their buffalo and goats for grazing in their field at about 9.30 a.m. At about 11.00 a.m. P.W.3 Hari also went towards their field. She states that she and deceased Manubai stayed in the house. She also states that P.W.3 Hari returned and 13 informed them about quarrel in the agricultural field and also informed that accused Nos.1 and 3 had assaulted Narayan. She states that she along with P.W.3 Hari and deceased Manubai went to their field and saw the injuries sustained by Narayan. She states that they told Narayan not to come along with them and then she along with her in laws went towards accused No.3. Deceased questioned accused No.3 as to why he had assaulted P.W.4 Narayan. Deceased thereafter slapped accused No.3. Accused No.1 told them to wait there and went towards his house. Manjula states that she along with her in laws waited to their field and after some time accused No.1 along with accused 2 to 4 came to their field and began abusing them. Accused Nos.1 and 3 were armed with sticks and accused No.1 assaulted Manjula with a stick on her right leg. Accused No.3 then assaulted P.W.3 Hari with a stick. She states that deceased Manubai was crying for help but no one was present in the adjoining fields. Accused No.1 caught the throat of deceased Manubai and thereafter deceased fell on the ground. Accused No. 1 moved the arm of deceased and told her as to why she was pretending. Accused No.1 then asked P.W.3 Hari as to where Narayan was and P.W.3 Hari informed him that Narayan was near the stream grazing the cattle. Manjula states that she fled from the scene towards her husband narrated the incident to her husband and she along with her husband Narayan returned 14 home. She states that she returned at about 7.00 to 7.30 p.m. and at about 11.00 to 11.30 p.m. P.W.3 Hari returned home and told Narayan that Manubai had died. She states that they all started shouting loudly in their house and hearing them the neighbours came to their house. The neighbours went to their agricultural field. In cross-examination she was confronted with portion marked “A” in her statement wherein she had stated about the dispute between accused No.1 and P.W.3 Hari in respect of inequitable partition of ancestral land. She could not assign any reason as to why portion marked “A” was scribed. She states that P.W.3 Hari returned back from the field at about 2.00 p.m. and after an hour she accompanied her in laws to their field. Omission has been duly proved that she had not stated in her statement that P.W.3 had accompanied her and deceased when they had gone to accused No.3. Omission has been duly proved that she had not stated that accused No.3 had come to the field along with accused Nos.1, 2 and 4. Omission has been duly proved that she had not stated in her statement that no one was present in the adjoining fields when the deceased was crying for help. Omission has been duly proved that she had not stated that accused No.1 shook the hand of deceased and asked her as to why she was pretending. Omission has been duly proved that she had not stated that thereafter accused No.1 asked P.W.3 as to where Narayan was. Omission has been duly proved that she 15 had not stated that P.W.3 Hari had informed her that Narayan was grazing cattle near the stream. She has denied to have stated portion marked “B” in her statement wherein she had stated that she along with her husband were waiting in their house till morning. She could not assign any reason as to why such statement was scribed. She has admitted that her statement was recorded on 8.10.2007. She has denied to have stated portion marked “A” from her supplementary statement dated 8.10.2007 wherein she had stated that when she went towards her husband she had noticed that he had already returned home. 12. Mrs Jadhav, learned Counsel for the appellants has urged before us that the conduct of P.W.3 Hari, P.W.4 Narayan and P.W. 5 Manjula belies their having witnessed the incident. It is also urged before us that the claim of these witnesses at having witnessed the incident is rendered doubtful in the light of their unnatural conduct. Alternatively, it is urged before us that accused No.1 ought not to have been convicted for an offence punishable under Section 302 of the Indian Penal Code as accused No.1 had no intention to kill the deceased but had caught her throat in order to muffle her cries. It is urged before us, therefore, that accused No.1 would be liable to be punished for an offence punishable under Section 304 of the Indian Penal 16 Code in the event this Court does not find favour with the first part of the submissions. The learned Assistant Public Prosecutor has supported the prosecution case. 13. P.W.3 Hari claims to have witnessed the incident in the morning and thereafter had returned home. He had witnessed his son being assaulted in front of his eyes and yet no report thereof was lodged by him either to the Police Patil or to the Sarpanch. We find it difficult to believe that he had left Narayan on the mercy of accused, who were alleged to have assaulted Narayan. Similar is his behaviour and conduct in respect of the assault in the afternoon. The accused were obviously not on cordial terms. Various cases had been filed against each other. There was no reason for P.W.3 Hari to remain in his field merely because accused No.1 had told him to remain there. Obviously, accused No.1 had not extended a polite invitation to P.W.3 and others to stay in the field and P.W.3 must have fathomed the intention of accused No.1 in asking P.W.3 and others to remain in their field, yet P.W.3 Hari and others continued to wait for more than one hour in their field. Curiously, after he claims that deceased had been killed by accused No.1, P.W.3 Hari fled from the scene. Obviously, no threat was given to P.W.3 Hari or to P.W.5 Manjula. There was nothing for P.W.3 Hari to be afraid of. It is also curious that he accompanied his wife not knowing whether 17 she was alive to her fate and fled from the scene. He claims to have climbed a tree and waited there perched on the tree for nearly five hours. During that time he had not at all bothered as to what had happened to his wife Manubai. He states that the accused were searching for him but there is nothing in his evidence to indicate as to the steps taken by the accused which would amount to searching P.W.3 Hari, if Manjula is to be believed that the accused were searching P.W.4 Narayan and