1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. Criminal Appeal No. 439/2004 1] Pika S/o Sunta Bhosale, Aged 40 years, 2] Babuseth S/o Rajghas Bhosale, Aged 32 years, 3]Kanthesingh S/o Janta Bhosale, Aged 30 years, 4]Manohar S/o Jagdeo Chavan, Aged 23 years, All resident of village Jambrun, Tah. : Patur, Distt. Akola. ( In Jail). ...Appellants VERSUS The State of Maharashtra, through P.S.O. Patur, Distt. Akola Respondent .... Mr. R.M. Daga, Advocate for the Appellants. Mr. Y.B. Mandpe, APP for the respondent. CORAM : A.P. LAVANDE & P.D. KODE, JJ . Date of reserving the judmgent :9/2/2010 Date of pronouncing the judgment : 24/2/2010. JUDGMENT : (Per A.P. Lavande, J.) 2 1] Challenge in this appeal is to the judgment and order dated 8th July, 2004 passed by Sessions Judge, Akola in Sessions Trial No. 156/2003 convicting the appellants-accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing each one of them to suffer imprisonment for life and to pay fine of Rs.200/- and in default to suffer R.I. for one month. The accused have been convicted for committing murder of one Gajajnan Lalma Bhosale. 2] Briefly, the prosecution case is as under:- Deceased Gajanan Lalma Bhosale is the younger brother of Raju Bhosale (PW 1). Father Lalma, his wife Hirawanti, Chanda, the wife of Raju Bhosale had been to the village Palaskhed for their livelihood and were residing near the school in the village Palaskhed in Patur taluka. On 21.6.2003 at about 5.00 a. m. Raju Bhosale, his elder brother Gajanan Bhosale along with villager Badal 3 Rathod went to the jungle for the purpose of hunting of birds. Initially, they went in the eastern direction in the jungle. Thereafter Gajanan and Badal went towards southern side and Raju went ahead up to a short distance. At about 6.30 a. m. Raju heard noise of a quarrel and, therefore, he rushed in that direction. He noticed all the accused assaulting his brother Gajanan with sticks and iron bars. All of them were saying as to why Gajanan had been there for hunting in their jungle from other village. On account of assault Gajanan sustained severe bleeding injuries on his head, mouth and neck and fell down on the ground. Upon questioning by Raju as to why they were beating his brother Gajanan, all the accused ran away in the jungle. Raju was seriously injured and was unconscious. Raju went towards village Palaskhed and informed the incident to the villagers. Some of the villagers rushed to the spot along with Raju and they brought bullock-cart and all of them carried Gajanan in the bullock- cart to the Police Station, Patur. From the Police Station Gajanan was taken in a taxi jeep to Main hospital, Akola but on the way, he expired. Head constable Suresh Magar (PW 9) 4 recorded F.I.R. lodged by Raju and handed over the report to the Police Inspector, Sonone (PW 10), on the basis of which, Crime No.62/2003 was registered under Section 302 read with Section 34 of the Indian Penal Code against all the accused. In the course of the investigation, P.I. Sonone visited the scene of offence and drew spot panchanama. He recorded statements of several witnesses and arrested the accused. Three sticks and an iron bar were seized at the instance of all the accused pursuant to the memorandum statements (Ex. 28-A, 29-A, 30- A and 31-A) made by the accused on 22.6.2003. The clothes of the accused as well as clothes of deceased Gajanan were seized and sent for medical analysis. After completion of the investigation, charge-sheet under Section 302 read with Section 34 of the Indian Penal Code was filed against all the accused in the Court of Judicial Magistrate First Class, Patur. The offence punishable under Section 302 read with Section 34 of the Indian Penal Code being exclusively triable by the Court of Session, the case was committed to the Court of Sessions, Akola. In Sessions Trial No. 156/2003 the prosecution examined ten witnesses and produced several 5 documents. Defence of the accused was of false implication and further the case of the accused was that the murder was committed by Raju, the brother of deceased Gajanan. The learned trial Court, upon appreciation of the evidence led by the prosecution held that the offence under Section 302 read with Section 34 of the Indian Penal Code against the accused and consequently, convicted and and sentenced them as above. 3] Mr. Daga, learned counsel for the the appellants submitted that except for Raju Bhosale (PW 1) all other independent eye witnesses namely Badal Rathod (PW 2), Vinod Awchar (PW 4), Vinod Sonone (PW 5) and Bandu Telgote (PW 6) have turned hostile and, therefore, there is no cogent independent witness to connect the accused with the crime. He further submitted that the conviction of the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code cannot be sustained inasmuch as there is no cogent evidence to prove offence of murder beyond reasonable doubt against all the accused. In 6 the alternative, Mr. Daga submitted that having regard to the injuries found on the person of deceased Gajanan and having regard to the cause of assault on deceased Gajanan, at the most, an offence punishable under Section 304 (I) read with Section 34 of the Indian Penal Code is made out against the accused even if the version of Kisanrao Sonone ( PW 10) is accepted in toto. 4] Per contra, Mr. Mandpe, learned APP appearing for the respondent supported the impugned judgment and order and learned APP further submitted that the evidence on record is sufficient to prove the offence of murder against all the accused beyond reasonable doubt. 5] We have carefully considered the submissions and perused the record. 6] There is no serious dispute that deceased Gajanan died on account of the injuries suffered by him. Dr. Ashwinikumar Sapate (PW 8) who conducted post-mortem on 7 dead body of Gajanan deposed that on 21.6.2003 he was on duty in main hospital, Akola and he conducted post-mortem on dead body of Gajanan Bhosale and he noticed the following external injuries on the body of deceased Gajanan:- (i) Lacerated wound on scalp on right parietal eminence size 2 x ½ cm. underlying bone fractures. (ii) Periorbita contusion (black eye) right side; (iii) Periorbital contusion on (black) eye left side with lacerated wound over it as lateral end of upper eyelid of size 1 cm x ½ cm. by 1/4cm. (iv) Three abraded contusions on left cheek of sizes 2 cm x 1½ cm. 5 cm x 2 cm and 2 m x 2 cm. (v) Lacerated wound on left cheek over left angle of mandible of size 2 cm x 1 cm x muscle deep; (vi) Lacerated wound in left sub-mandibular region of size 2 ½ cm x ½ cm x muscle deep; (vii) Through and through lacerated wound on left ear pinna of size 2 ½ cm. x 1 ½ cm in middle. (viii) multiple abraded contusion on left forearm posterior medial aspect of size ½ cm.. x ½ m. to 2 cm x 1 8 cm. (ix) two linear parallel contusions ( of size 8 cm x ¾ cm. each) with pale intervening area of thickness half cm between them on right thigh anterior medial aspect at junction of lower and middle thirds, obliquely placed (rail road contusion), (x)Two linear parallel contusions of size 7 cm x ¾ cm. each with pale intervening areas of thickness ½ cm between them on left thigh lateral aspect at junction of low and middle third obliquely placed (Rail road contusion). (xi) Two linear parallel contusions of size 6 cm x ¾ cm each with pale intervening areas of thickness half cm between them on left thigh lateral aspect 4 cm below injury no.10 obliquely placed rail road contusion. Injury nos. 1 to 8 could have been caused on impact with hard and blunt object and injury nos. 9 to 11 could have been caused on account of impact with hard and blunt object having longitudinal circular body like lathi, pipe or rod. 9 He further deposed that upon internal examination, he found the following injuries:- ( i) Under scalp haematoma in left front parietal tempero occipital region of size 9 cm x 17 cm reddish in colour, (ii) Right parietal eminence depressed and fracture into multiple piece corresponding to injury no.1 in Col. No.17, blood and blood cloths reddish in colour present in fracture lines. (iii) linear fracture extending from left frontal bone backwards to left parietal bone, dividing into two fracture lines, 2 cm right to left parietal eminence, anterior line extending on right to left parietal eminence, anterior line extending on right parietal region, 3 cm right to mid line and posterior line extending on occipital bone 3 cm right to mid line. (a) Linear fracture extending from anterior end of above fracture line on left frontal bone into anterior crennial fossa on left side up to mid line, blood cloths present in fracture lines reddish in colour; 10 (iv) Melingem torn corresponding to fractured skull bone; (v) Diffused sub dural and sub-sub archnoid haemorrhages spreaded all over brain surfaces about 250 ml blood and blood clots reddish present. (vi) (i) brain contusion 3 cm x 3 cm left frontal bone anterior lateral surface reddish; (ii) laceration 3 cm x 3 cm x ½ cm on right parietal lobe with infiltration of blood in injured and surrounding tissues corresponding to injury No.1 in Col. No.17. He identified his signature on the post-mortem report (Ex. 36) and deposed that injury no.1 was sufficient to cause death in the ordinary course of nature. All injuries except injury nos. 9 to 11 could have been caused by sticks and rod and injury nos. 9 and 11 could have been caused by sticks. In cross-examination the witness stated that injury nos. 2 to 8 were possible, if the dash was given by pig or by 11 bullock or if that person were to hit against a tree and if considerable force was used. We find that nothing tangible has been brought in the cross-examination to discredit the version of Dr. Ashwinikumar Sapate that deceased Gajanan died on account of the injuries suffered by him as disclosed in the post-mortem report. Moreover, post-mortem report stands corroborated by inquest panchanama (Ex.20). Therefore, we have no hesitation to hold that deceased Gajanan died homicidal death. 7] In order to prove the complicity of all four accused in the commission of the crime, the prosecution examined five witnesses but as stated as above, except Raju Bhosale (PW 1) all other four eye witnesses namely, Badal Rathod (PW 2), Vinod Awchar (PW4), Vinod Sonne (PW 5) and Bandu Telgote (PW6) turned hostile. Raju Bhosale (PW 1) the brother of deceased Gajanan, who had accompanied deceased Gajanan on the date of the incident, deposed that on the date of the incident he had gone for hunting at 6.00 a. m. along with 12 deceased Gajanan and Badal who was resident of Palaskhed. He went in one direction and Gajanan and Badar went in another direction. Suddenly, he heard noise of Gajanan. So he rushed to that direction. He saw all the accused assaulting Gajanan with iron rod and bamboo sticks and accused no.1 Pika threw a big-stone on the body of Gajanan. Accused no. 4 Manohar was holding iron bar. Accused nos. 1 and 2 were holding sticks. They were beating Gajanan since he had come in their area for hunting. After seeing him they ran towards the village. Accused Pika was chasing Badal. Thereafter he went to his house and informed this fact to his family members. Some villagers along with family members rushed to the spot. Thereafter bullock-cart was taken to the spot and Gajanan was taken to Patur and then to Akola hospital. The doctor at Akola hospital declared Gajanan dead. He lodged oral report at Akola. He identified his thumb impression on the report (Ex.17). He also identified his thumb impression on the F.I.R. (Ex.18) lodged at Patur. He also identified sticks and iron rod, before the Court as the weapons used in the assault. 13 In cross-examination, nothing tangible has been brought on record to discredit the version of this witness. It is pertinent to note that in the course of the investigation, three sticks were discovered at the instance of accused nos. 1, 2 and 4 and iron bar was discovered at the instance of accused no.3 and the same were identified as the weapons used by the accused in the assault. The evidence of this witness, whose presence on the spot, cannot be doubted inspires confidence and is corroborated by the evidence of first information report lodged by him. In the report, which was lodged on the same day at about 3.30 p. m. the names of all the accused are mentioned as assailants. There is no reason to disbelieve the version of this witness, which is corroborated by first information report lodged within a very short time. We have, therefore, no hesitation to hold that all the accused assaulted deceased Gajanan with sticks and iron rod causing him serious injuries resulting in his death. 8] The next question which arises for consideration, is as to what offence is made out against the accused. Perusal of 14 the post mortem report and the evidence of Dr. Ashwini Kumar Sapate (PW 8) clearly discloses that out of 11 external injuries only one injury was found on the scalp on right parietal region and there were corresponding internal injuries. All other 10 injuries were not on vital parts of the body. Moreover, the incident appears to have occurred on account of deceased Gajanan and Badal attempting to hunt the birds in the area which the accused thought they had exclusive right to hunt. There is absolutely no pre-meditation on the part of the accused to assault deceased Gajanan. The assault appears to be sudden because the accused thought that deceased Gajanan tried to hunt birds in the area in which the accused had exclusive right to hunt. Having regard to this factual background and also having regard to the injuries on deceased Gajanan, we are of the considered opinion that this is a fit case in which the conviction deserves to be altered to Section 304 (I) of the Indian Penal Code. 9] In view of the above discussion, the appeal is partly allowed. The conviction of the appellants-accused for the 15 offence punishable under Section 302 read with Section 34 of the Indian Penal Code is quashed and set aside and the accused are convicted for the offence punishable under Section 304 (I) read with Section 34 of the Indian Penal Code and each one of them is sentenced to undergo R.I. for ten years and to pay fine of Rs. 1000/- (Rs. one thousand only) and in default to undergo R.I. for one year. The accused are entitled to set off the period of imprisonment in terms of Section 428 of the Code of Criminal Procedure. The order passed by the trial Court insofar as muddemal property is concerned is maintained. The appeal stands disposed of accordingly. JUDGE JUDGE Ambulkar