1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. Criminal Appeal No. 349/2003 Raja s/o Hiralal Boyat, Aged about 42 years, Occ. Service, R/o Hari Om Colony, In front of Gajanan Baba Mandir, Sai Nagar, Amravati (M.S.) ...Appellant VERSUS State of Maharashtra, through the P.S.O. P.S. Nagpuri Gate Police Station, Amravati (M.S.). . .. Respondent .... Mr. V.M. Deshpande and R.M. Daga, Advocates for the appellant. Mr. J.B. Jaiswal, A.P.P. for the State/respondent. ..... Criminal Appeal No. 448/2003 State of Maharashtra through Police Station Officer, P.S. Nagpurigate, Amravati. ...Appellant VERSUS 2 1. Gopal s/o Buddhu Gohar (deleted) 2. Manoj Buddhu Gohar (deleted) 3. Rajesh Buddhu Gohar (deleted) R/o Near Gogoaji Maharaj Zenda, Sweeper Colony, Masanganj, Amravati. 4. Raju Hiralal Boyat, Aged about 39 years, Near Gajanan Maharaj Mandir, Akoli Road, Sai Nagar, P.S. Rajapeth, Amravati. All R/o Amravati, Distt. Amravati. ... Respondents .... Mr. J.B. Jaiswal, A.P.P. for the Appellant. Mr. R. M. Daga, Advocate for respondent no.4. .... Criminal Appeal No. 465/2003 1. Gopal Buddhu Gohar, aged about 39 years, 2. Manoj Buddhu Gohar, aged about 35 years, 3. Rajesh Buddhu Gohar, aged about 33 years, All r/o Amravati, District Amravati. 3 All appellants are presently at Central Prison, Amravati. ..Appellants. Versus The State of Maharashtra (through P.S.O. Nagpuri Gate, Amravati.) Respondent. .... Mr. V. Dahat and J.B. Kasat, Advocates for the appellants. Mr. J.B. Jaiswal, APP for the respondent. .... CORAM : A.P. LAVANDE & Prasanna B. Varale, JJ . Date of reserving the Judmgent : 5/11/2009. Date of pronouncing the Judgment : 5/12/2009. .... JUDGMENT (Per A.P. Lavande, J.) 1] All three appeals are being disposed of by common judgment since they arise out of judgment and order dated 13th December, 2003 passed by 2nd Additional Sessions Judge, Amravati in Sessions Case No. 129/2000. 2] The appellant in Criminal Appeal No. 349/2003 is original accused no.4 and respondent nos. 1 to 3 in Criminal 4 Appeal No. 465/2003 are accused nos. 1 to 3 respectively in Sessions Trial No. 129/2000. By the impugned judgment and order, the learned Additional Sessions Judge has convicted accused nos. 1 to 3 for offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and accused no.4 has been acquitted of offence punishable under Section 302 read with Section 34 of the Indian Penal Code but convicted for the offence punishable under Section 326 read with Section 38 of the Indian Penal Code and sentenced to undergo R.I. for five years and pay fine of Rs. One thousand and in default to suffer R.I. for three months. By filing Criminal Appeal Nos. 349/2003 and 465/2003 the accused have challenged their conviction and sentences. Criminal Appeal No. 349/2003 has been filed by the State of Maharashtra challenging acquittal of original accused no.4 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 3] Briefly, the facts relevant for disposal of the present appeal, are as under:- 5 Shardabai Sankat (PW 1) wife of deceased Arun Sankat resident of Masanganj area, Sweeper Mohalla, Amravati lodged report against all the accused and one deceased Raju Natthu alias Arpan Gohar (since deceased) on 20.3.2000 stating therein that on 20.3.2000, which was the day of “Holi” she was present along with her husband in the house. At about 11.00 a. m. they came to know that one Manoj was quarreling with Sunil and Bharat. Therefore, her husband went there to intervene in the quarrel and returned back to the house after successful intervention. Thereafter at about 2.00 p.m. to 2.30 p.m. both of them heard that Manoj and Gopal were assaulting Sunil and Bharat. Therefore, her husband went for their rescue followed by Shardabai. She noticed that accused no.4 had caught of her husband and accused no.1 Gopal blow of knife on the chest of her husband. Accused no.2 Manoj and accused no.3 Rajesh also assaulted the husband with knives with long blade. Thereupon her husband started shouting for rescue saying “Bachav Bachav”. He fell down due to the assault with knife upon him. He was 6 lying in a pool of blood. Thereupon her son Bharat and Sunita reached there. Her husband was removed from the said place and taken to the house. She offered water to the husband and thereafter her husband was taken to the hospital. She also went to the hospital where she was informed that her husband had expired. She lodged report at Nagpuri Police Station, pursuant to which, F.I.R. was lodged against four accused as well as deceased Raju Nathu Gohar. Pursuant to the F.I.R., investigation was taken up. The spot panchanama as well as seizure panchanama was drawn. Thereafter inquest panchanama was also drawn on dead body of deceased Arun and his body was forwarded for post-mortem examination. The clothes of deceased were seized. All the accused were arrested. During the investigation, as per memorandum statements of the accused weapons were seized. The clothes of the accused were also seized. The articles seized were sent for analysis for Chemical Analyser. After completion of the investigation, charge-sheet was filed against the accused in the Court of Judicial Magistrate First Class, Amravati. Since the case was 7 exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Amravati, which was made over to the Additional Sessions Judge, Amravati. In Sessions Trial No.129/2000 the prosecution examined ten witnesses and produced several documents to prove the offence against the accused. Defence of the accused nos. 1 to 3 was of denial and false implication. The defence of accused no.4 was that he was in service of Zilla Parishad and social worker. He was providing money to the needy persons without interest. The deceased and relatives of the deceased were dealing in money lending business and as such they were against him and, therefore, he was falsely involved in the case. Learned Additional Sessions Judge, upon appreciation of the evidence led by the prosecution, held that the prosecution was able to prove beyond reasonable doubt the offence punishable under Section 302 read with Section 34 of the Indian Penal Code against accused nos.1 to 3 and accused no.4 was held liable for offence punishable under Section 326 read with Section 38 of the Indian Penal Code. Consequently, all the accused were convicted and sentenced as stated above. 8 4] Mr. Kasat, learned counsel appearing for original accused nos. 1 to 3/appellants in Criminal Appeal No. 465/2003 submitted that Smt. Shardabai Sankat (PW 1), Bharat Sankat (PW 5), Dharma Jaideo (PW 6) and Deepak Kakde (PW 7) are not eye witnesses to the incident of assault on deceased as claimed by them and learned Judge has wrongly accepted their evidence as eye witnesses to the incident. He further submitted that accused nos.1 to 3 have been falsely implicated and close scrutiny of the evidence of all the witnesses examined by the prosecution would reveal that the evidence adduced by the prosecution does not inspire confidence since there are contradictions/omissions on material aspects. He further submitted that the learned Additional Sessions Judge has wrongly placed reliance upon the evidence of these witnesses, more particularly, Smt. Shardabai Sankat (PW 1), Bharat Sankat (PW 5), Dharma Jaideo (PW 6) and Deepak Kakde (PW 7) and held that the offence of murder is proved against the accused nos.1 to 3. In the alternative, Mr. Kasat submitted that even if the prosecution version is accepted, the same does not establish 9 any pre-meditation on the part of the accused and, therefore, conviction of the accused for offence punishable under Section 302 of the Indian Penal Code is absolutely not justifiable and at the most offence punishable under Section 304 (II) of the Indian Penal Code is made out against the accused. In support of his submission, learned counsel placed reliance upon the judgment of the Apex Court in the case of Kotikalapudi Subba Rao Vs. State of Andhra Pradesh and another :(2008) 5 SCC 390. 5] Mr. Deshpande, learned counsel appearing for original accused no.4/appellant in Criminal Appeal No. 349/2003 submitted that the conviction of accused no.4 for offence punishable under Section 326 read with Section 38 of the Indian Penal Code is unsustainable inasmuch as there is no evidence on record that he was hostile to deceased Arun or that he was involved in any quarrel just before the incident of assault on deceased Arun. According to Mr. Deshpande, even if the prosecution evidence is accepted, the same, at the most, discloses that accused no.4 dragged deceased backward in 10 order to save from the assault. According to Mr. Deshpande, no motive on the part of accused no.4 has been established nor sharing of common intention with accused nos. 1 to 3 in the commission of offence punishable under Section 326 of the Indian Penal Code. He further submitted that no blood was found on the clothes of accused nos. 2 and 4 which clearly belies the prosecution case. According to Mr. Deshpande, the prosecution evidence clearly suggests that accused no.4 did not share common intention with any of the accused to cause grievous injury to deceased Arun and, therefore, the conviction of the accused no.4 for offence punishable under Section 326 with the aid of Section 38 of the Indian Penal Code is liable to be set aside. He further submitted that burn injuries found on deceased during post-mortem examination have not been explained and, therefore, serious doubt is created on the entire prosecution story. He further submitted that there is absolutely no evidence on record that accused no.4 was friendly with accused nos. 1 to 3 or any of them nor that accused no.4 was hostile to deceased. He, therefore, submitted that the prosecution evidence even if it is taken as a 11 whole does not establish common intention with other accused in the commission of any offence. He, therefore, submitted that the conviction of the accused no.4 is liable to be set aside. 6] Mr. Jaiswal, learned Additional Public Prosecutor supported the impugned judgment and order insofar as the conviction and sentences imposed by the learned Additional Sessions Judge on accused nos.1 to 3 is concerned, but submitted that the learned Judge has clearly erred in not convicting accused no.4 for offence punishable under Section 302 with the aid of Section 34 of the Indian Penal Code. According to Mr. Jaiswal, accused no.4 caught deceased Arun from behind in order to facilitate assault by the accused nos. 1 to 3 on him and, therefore, the accused no.4 is liable to be convicted for offence of murder with the aid of Section 34 of the Indian Penal Code. Learned APP further submitted that the Additional Sessions Judge having convicted accused nos.1 to 3 for murder of Arun with the aid of Section 34 of the Indian Penal Code was not justified in acquitting accused no.4 for 12 offence of murder of Arun. He, therefore, submitted that the conviction and sentence imposed by the trial Judge on accused nos. 1 to 3 be maintained and accused no.4 be convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. In support of his submission, he relied upon the following judgments of the Apex Court:- (i) Kishore Eknath Nikam Vs. State of Maharashtra :(2007) 1 SCC (Cri.) 62 and (ii)Lallan Rai and others Vs. State of Bihar :(2003) 1 SCC 268. 7] We have carefully considered the rival submissions, perused the record and the judgments relied upon. 8] Before adverting the evidence of the witnesses, who claimed to be eye witnesses to the incident, we deem it appropriate to refer to the medical evidence in order to find out whether the death of Arun was homicidal. 13 9] In order to prove homicidal death of Arun, the prosecution has examined Dr Vidya Kiran Wathodkar (PW 8). Dr. Vidhya Wathodkar deposed that on 21.3.2000 she was attached to General hospital, Amravati. She conducted post-mortem on dead body of Arun, who was admitted in the hospital on 20.3.2000 at 2.50 p.m. and he expired at 2.55 p.m. He was admitted for treatment of stab injury on chest with multiple injuries. She further deposed that on external examination, she found that the clothes on the body were stained with blood and, therefore, the clothes were torn with tear mark where ever he had sustained injuries. The face was congested. Eyes were closed. The mouth was partially open, tongue was in mouth. The blood was oozing from the mouth and nostrils. There were stab wounds on left forearms and through from posterior and anterior. Posterior opening 2 1/2” x 1/4” with margin inverted. Clear-cut margins were present. She found the following injuries on deceased:- (i) On chest stab wound 1½ x 1/4” x cavity deep. one inch medial to left nipple. 14 (ii)Stab wound on left buttock – 3” x 1/2” x 2” deep with clean cut edges. (iii)Burn injuries over right upper limb 9%, back upper half 8% on left shoulder and upper limb 2% neck and face 2% and total 21% burn injuries. All the injuries were ante mortem. There was fracture of 4th rib on left side on account of stab injuries corresponding to injury no.2 shown in column no.17. Haemo thorax was present on left side and two liters of blood was present. Lungs were congested and collapsed, one pericardium 1¼ inch anteriorly and 1/th inch posteriorly torn. Haemopericardium was present. Heart was weighting 300 grams, stab wound was through right ventricle anteriorly 1 ¼ inches and posteriorly was 11/4 inch, wound contained blood clothes. She opined that death was on account of stab injury to heart which caused hemorrhagic shock. She identified her signature on the post mortem report (Ex. 109). She deposed that injury sustained on the heart was being vital was sufficient in the ordinary course to cause death. She further 15 deposed that on 2.5.2000 the police had sent letter along with three weapons for opinion. She had opined that injury no.2 in column no. 17 could be possible by knife and injury nos. 1 and 3 shown in column no.17 could be possible by both the swords. Accordingly, she had given opinion which she identified at Ex. 110. She identified swords and knife as weapons sent for her opinion. 10] In cross-examination on behalf of accused nos. 1 to 3 she deposed that margins of injuries No. 1 to 3 shown in column no. 17 of post-mortem notes were found clean cut. Since these injuries were stab injuries, their extreme ends were also clean cut and there was no tearing or raggedness in any of the injuries. If the wound was inflicted and one edged found sharp and other found blunt, there can be one end clean cut and at the other end there can be raggedness. If both the edges are sharp in that event there can be clean cut with extreme edges. The witness was shown swords before the Court of one side of each sword was sharp and other side was blunt. The witness further deposed that if the weapon having 16 the edge like sword then there could be tearing. The witness was shown article knife like dragger which was having the edges like saw to some extent on its blade. She further deposed that injury nos. 1 to 4 were fresh and ante-mortem. She further submitted that these were ante-mortem and those injuries might have been inflicted simultaneously or in quick succession. In cross-examination on behalf of the accused no.4 the witness deposed that except injury no.1 other injuries were not on vital part of the body. She could not tell if a person who sustained injury no.2 caught by another person from back side and by leaving his hand near the left nipple, the person holding said injured person from back side would sustain injury or not. She could not state as to whether a person holding the injured near left arm and facing him would sustain injury to his hand or not. She could not state if a person is caught from his back side would suffer injury on the buttock. 17 A close scrutiny of the evidence of this witness clearly suggests that deceased Arun died on account of injuries suffered by him and more particularly on account of stab injury on the chest. The evidence of this witness also stands corroborated by the inquest panchanama. 11] We shall now analyse the evidence of four witnesses namely Smt. Shardabai Sankat (PW 1), Bharat Sankat (PW 5), Dharma Jaideo (PW 6) and Deepak Kakde (PW 7) who claimed to be eye witnesses to the incident. 12] Shardabai Sankat (PW 1) the wife of deceased deposed that Arun Sankat was her husband. Bharat was her son and Sunil was her sister’s son. The incident took place at about two years’ back. On that day there was “Holi” festival. There was quarrel between Sunil and Manoj from Masanganj. At that time she and her husband were present at the house. Her husband went to convince them near Krishna Bhagwan temple where the quarrel was going on. He convinced them 18 and took their son back home. The quarrel was going on with Manoj. Thereafter they took meal and they were in the house thereafter. At about 2.00 p.m. to 2.30 p.m. they came to know that Manoj, Gopal and Rajesh were beating Bharat and Sunil. She and her husband went to the place of quarrel i. e. near the temple of Krishna Bhagwan. Her husband went to intervene in the quarrel. At that time, they caught her husband. Raja caught the hands of her husband and Raju caught his legs. Gopal (A1) gave blow with knife on the chest of her husband. Manoj (A2) also gave blow with knife on her husband. Rajesh (A3) also gave blow with knife having long blade from the backside on her husband. Her husband was sustained injuries and there was bleeding from those injuries. People gathered there and took him in the hospital where he died. When the doctor told her that her husband had expired she went to Nagpuri gate police station to lodge report. She identified the report (Ex. 84) and stated that the contents were correct. The witness was also identified the accused present before the Court and stated that they are residence of her mohalla. The witness was also shown dagger which she identified as knife, 19 which was used in the commission of the offence. The witness was shown other weapons namely swords. She could not say exactly as to whether the weapons used and the weapons before the Court were similar. In cross-examination she admitted that the incident had occurred on the next day of “Holi” and on that day normally people eat meat and drink liquor. She could not state that generally people quarrel and abuse on that day. She state that at about 11.00 a .m. she was present in the house and her husband went to convince and returned back home. She further admitted that after lodging of report police recorded her statement on two occasions. She admitted that her husband returned home at 11.00 a. m. Her husband told her that quarrel was going on under the influence of liquor. She further stated that at the time of lodging of report she had stated that her husband went to intervene in the quarrel. At that time her husband had returned with Bharat. She could not state as to why this fact is not mentioned in the report. She further stated that when Sunil and Bharat were beaten at 20 2.00 p.m. they came to know this fact at their residence and at that time they learnt that Rajesh was amongst them. She stated that the name of Rajesh was also mentioned as an assailant but she had not mentioned in the report or statement. She stated that she came to know about quarrel on hearing the noise “Bachav Bachav” from Sunil and Bharat when they were being assaulted. She stated that she and her husband reached the spot on noise of Sunil and Bharat and it was at about 2.00 p.m. She admitted that at about 2.00 p.m. Sunil came to their house and told her husband that Manoj was beating him and he should convince Manoj. Thereafter her husband and son Bharat left the house. She further deposed that she had stated to the police in the report as well as statement that they learnt at about 2.00 p.m. that Sunil and Bharat were being assaulted. She had stated that Gopal, Manoj and Rajesh were assaulting them. The witness was confronted with the statement that name of Rajesh was not there. She stated that her husband was being assaulted after he was caught and he was not assaulted before he was caught. It did not happen that the accused Manoj came with 21 sword from some where and assaulted him on his head before he was caught. She denied to have stated so in her statement dated 28.4.2000. She denied having stated before the police that her husband reached the spot and Manoj all of a sudden took sword somewhere and she could not assign any reason as to why the police recorded the same in her statement. She further deposed that it did not happen that Manoj assaulted her husband by sword and other accused were standing there. However, she admitted that she has stated before the police that at that time other accused were present there. She admitted that temple of Lord Krishna was situated on the ground and people from the locality gathered on the next day of Holi. She further deposed that it did not happen that accused Rajesh assaulted her husband on his waist, hand, leg by means of sword. She voluntarily stated that he was assaulted by knife having long blade on the waist. She was confronted with the portion marked B of statement of dated 28.4.2002 that Rajesh assaulted her husband with sword on his head, hand, leg and downward portion of waist but she could not assign any reason why the police recorded so. She further 22 stated that it did not happen that accused Rajesh and Manoj assaulted her husband on his hand and waist with sword but they had assaulted with knife. She had not stated to the police that Manoj assaulted her husband on his hand and waist with sword. She was confronted with the portion marked A that Manoj assaulted her husband on hand and Rajesh on his leg with sword and she could not assign any reason as to why police recorded so. She had stated to the police that accused Manoj and Rajesh assaulted her husband with knife but she could not say as to why the police has recorded so. She further stated to the police that accused Rajesh assaulted her husband from back side but she could not assign any reason as to why it was not mentioned either in the report or in the statement. She further stated that on the date of incident at about 4.00 p.m. police visited the spot and she came to the spot and at that time persons from vicinity had gathered there. She further stated that at that time Sunil, Deepak and Bharat also stated the fact about the incident and the police recorded their statements. She did not know police inquired about other persons regarding the incident. She admitted that on 23 the date of incident some persons brought her husband to the house in an injured condition. She denied that when her husband was brought in an injured condition she was frightened and unconscious. She stated that she was with him. She admitted that she had given water to her husband and also asked him as to what happened and how he received these injuries. She denied