1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1310 OF 2002 1. Popat @ Bhujangrao Bhausaheb Mahurkar, age about 45 years, Occ: agriculturist. 2. Sou. Vandana Popat Mahurkar Age about 30 years, Occ: household and agri. 3. Kum. Meena Bhausaheb Mahurkar Age 25 years, Occ: household and agri. All residing at & post Mahur, Taluka Purandar, District-Pune. ..Appellants (Org.Accd.Nos.1 to 3) Vs. The State of Maharahstra .. Respondent Mrs. Smita Kadu, Advocate appointed for appellants. Mrs. P. P. Shinde, APP for State. 2 CORAM: B.H.MARLAPALLE & A.A. SAYED, JJ. Reserved on : April 27, 2010 Pronounced on: June 7, 2010 JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This appeal filed under Section 374 of Cr. P. C. arises from the order of conviction and sentence passed on 14/11/2002 by the learned V Ad-hoc Additional Sessions Judge at Pune in Sessions Case No. 156 of 2002. The present appellants were the accused in the said sessions case and all of them came to be convicted for the offence punishable under Section 302 read with Section 34 of IPC and have been sentenced to suffer life imprisonment. On admission of the appeal, appellant nos.2 and 3 (original accused nos.2 and 3) came to be released on bail as per the order dated 7/4/2003 passed in Criminal Application No. 270 of 2003, whereas accused no.1 was denied bail and, therefore, he is presently undergoing the sentence. 2. As per the prosecution case, PW 1 – Babasaheb 3 Sanas, PW 2 – Gorakh Atkari, deceased – Baban Mahurkar and the accused no.1 – Popal Bhausaheb Mahurkar, all residents of village Mahur in Purandar Taluka of Pune District had their agricultural lands adjacent to each other and accused no.1 -Popat is the cousin of deceased Baban. The agricultural land admeasuring 1 Acre and 8 Gunthas of the deceased was in Gat No. 140 (known as Bhorpeshet) of village Mahur (Atkarwadi) and on the date of the incident i.e. on 1/2/2002 around 12.15 p.m. these agriculturists were busy in harvesting jawar crop. PW 1 heard shouts coming from the agricultural land of the deceased and, therefore, he noticed that there was a quarrel going on between the accused and the deceased. After some time, he saw that the accused had gone to the land of the deceased, attacked him and accused no.1 was sitting on the chest of the deceased and assaulting him with stones, in which he was also joined by accused nos.2 and 3. When he tried to intervene, accused no.3 threatened him that she would throw stones at him and, therefore, he could not prevent the assault on the deceased. After smashing the head of the deceased, all the accused went to their land. This incident was also seen by PW 2, who, after cutting the grass was carrying it and he had also seen that PW 1 could not intervene because of the threats given 4 by accused no.3. However, he went to the village and informed the wife and daughter-in-law of the deceased that he (Baban) was assaulted and within about 2 hours time they reached at the spot and noticed that Baban was dead. His daughter-in-law, PW 4 – Sunita, informed the concerned police station at Saswad and the police jeep reached the spot between 4 to 4.30 p.m. The statements of PW 1, PW 2 and PW 4 were recorded and on the basis of the complaint of PW 1, FIR at Exh. 16 came to be registered (C.R. No. 9 of 2002). The investigation was taken over by PW 7 – Nitin Bhosale-Patil, API at Saswad Police Station at the relevant time. The dead body of Baban was sent for post mortem at Primary Health Center, Parinche and PW 5 – Dr. Gopalprasad Pardeshi conducted the autopsy and signed PM notes at Exh. 25. All the accused persons came to be arrested (Arrest Panchanama Exh.27) from their house on the same day and blood stained clothes on their persons were seized. The clothes of the deceased were seized under panchanama Exh. 28. Spot Panchanama was drawn at Exh.19 on 1/2/2002 between 5.50 to 6.30 p.m. The seized articles, including two stones recovered from the spot, were sent for chemical analysis and C.A. reports were received at Exhs. 35/1 to 35/3. On completion of the investigation, charge-sheet was submitted 5 and the case being exclusively triable by the Sessions Court, it was committed by the learned JMFC at Saswad. 3. The prosecution examined in all 7 witnesses and its case is based on the ocular evidence of PW 1 – Babasaheb and PW 2 – Gorakh. PW 3 – Sunil Chavan and PW 6 – Ishwar Bagmar were the panch witnesses, whereas PW 5 – Dr. Gopalprasad Pardeshi was the Medical Officer at Primary Health Center, Parinche and PW 7 – Nitin Bhosale-Patil was the I.O. PW 3 – Sunil Chavan proved the spot panchanama at Exh. 19 and PW 6 proved the seizure panchanama of the blood stained clothes of the accused at Exh. 27. The C.A. report at Exh. 35/3 indicated that the blood group of the deceased was “AB” and the paijama (Article 9) seized from the person of accused no.1 was stained with blood of group “AB”. The stone recovered from the spot was detected to have stains of human blood but its blood group could not be detected. 4. As per PW 5 – Dr. Paredeshi, the dead body of Baban Mahurkar was sent by the Primary Health Center, Atkarwadi, Mahur on 2/2/2002 and on the same day he conducted its autopsy between 9 to 10.20 p.m. The dead body was with 6 clothes (white nylon shirt and white paijama) and the upper portion of the shirt from both sides was blood stained. Blood clots were noticed in the mouth, nostrils and ears and there were blood marks on the entire scalp, neck, face, right shoulder, upper part of trunk, left shoulder and upper and lower limbs. Both the hands were clenched with no sand or earth within palms. The following external injuries were noticed on the head of the deceased:- 1. CLW over Rt parietal region of 2” above Rt. Ear having dimensions 3” x 1” x 2”, another CLW at Rt angel to this injury, having dimensions of 1” x 1/2x2”. 2. CLW over Rt side of occipital region of head 1 x 1/2” x 1”. 3. CLW extending diagonally from Rt pre auricular region to Rt supra auricular region, having dimensions of 2 x 1 x 1”. 4. CLW over Lt infra occipital region, dimensions as 1 x 1 x ½” adjacent to it there is another CLW of 1 x ¼ x 1/2”. 5. CLW over Lt. Side of occiput 2x1x2”. 6. CLW over Lt pre auricular region, extending from Lt. Eye to Lt ear, dimensions 1 x ½ x 2”. 7. Crushed injury over rt. Supra orbital region having irregular size and shape and of 1/2”. 8. CLW over Lt. Pinna of 2x1x1cms. in dimensions. The following two internal injuries were noticed during the post mortem: 7 1. Compound fracture Rt parietal bone of cranial vault, 5” in length and 3” in width. 2. Compound fractures of occiput of cranial vault 2” in length and 1” in width. At the side of both the fractures, brain tissues were perforated and damaged. 5. Stomach contents were watery and there was no food with empty small and large intestine. Al the injuries were ante mortem and their age was between 18 to 24 hours prior to the post mortem. As per the doctor, all the injuries were possible due to hard and irregular sharp edged object. The cause of death was “acute cardio – respiratory failure, due to haemorhagic shock, due to multiple head injuries, caused by multiple blows of hand, irregular shaped and sharp edged object”. Both the internal and external injuries and the fractures were cumulatively sufficient in ordinary course of nature to cause the death of the person and the said injuries were possible by giving repeated blows by stone. The doctor further clarified that these injuries could be possible when a person was 8 lying on the ground and was being assaulted by repeated stone blows, which could cause the fractures. The injuries noticed were not indicative of sudden fight. There were no foreign bodies found in wounds. The doctor admitted in the cross- examination that as per the medical jurisprudence, there could be skull bone fracture to old aged person if he falls all of a sudden and incised wounds are possible always by sharp weapons like knife, spear, razer, axe, broken glass etc. He identified the stone shown to him as an article which could possibly caused the injuries of fracture on the head, though he had seen the stone first time in the court. He denied the suggestion that the injuries on the skull could be caused by accidental fall. He also clarified that the injuries sustained on the head indicated that the deceased was made to lie on one side and the assault was repeated by a hard object like the stone. The medical evidence, as brought out through the depositions of PW 5 – Dr. Pardeshi, proved the prosecution case that Baban Mahurkar died a homicidal death on account of the multiple head injuries sustained by him on 1/2/2002 and at the spot which was in his agricultural land. This is not much in 9 dispute between the parties i.e. the prosecution and the defence. The only issue that remains to be decided is whether the accused persons or any of them caused the homicidal death resulting into the murder of Baban with common intention to kill him. 6. Though in the statements recorded under Section 313 of Cr.P.C. the accused merely denied their involvement, from the cross-examination of Pws 1, 2 and 4 it appears that the defence pleaded before the trial court that Baban Mahurkar was an old man, he was a drunkard and his death was unnatural and by way of a fall on stones while he was harvesting the Jawar crop in his land. Though the Medical Officer – PW 5 denied these suggestions of death due to fall resulting into multiple head injuries, it would be also necessary to examine the prosecution evidence as has come through the eye witnesses’ account. 7. PW 1 – Babasaheb Sanas is the resident of the same village and his agricultural land was adjacent to the land of the accused and immediately next to the land of the accused on the other side, was the land of the deceased. He stated before the trial court that in the Bhorpe land the incident had taken place 10 on 1/2/2002 around 12 noon. He along with his mother, wife and daughter was harvesting Jawar crop in his land, deceased Baban was harvesting Jawar crop in his land and similarly accused – Popat was harvesting jawar crop in his land. He heard shouts coming from the adjacent land and, therefore, he stood up and noticed that accused no.1 was sitting on the chest of the deceased and the wife of accused no.1 was beating Baban by stones. He, therefore, tried to rush to the spot so as to release Baban, but accused no.3 asked him not to interfere and threatened that she would lodge complaint against him and, therefore, he could not intervene. After some time, all the three accused went to their land and he went to bring water for the cattle. After some time, PW 4 Sunita, the daughter-in-law of the deceased reached the spot along with her mother-in-law and PW 4 Gorakh. He, therefore, came back to the spot and noticed that Baban had sustained bleeding head injuries and he was motionless. After some time, the police reached the spot and he narrated the incident to the police. His complaint was reduced in writing and registered as an FIR (Exh. 16). He also stated that police had seized the stones stained with blood from the spot and kept in a bag. In his cross-examination, he admitted that he knew reading and writing and his land was at a higher 11 level than the land of the accused as well as the deceased. When the incident had taken place he had seen it from the distance of about 100 – 125 ft. and at the time of the incident there was no jawar crop in some portion of the land owned by the deceased as well as the accused. He denied the suggestion that he could not see the spot of incident. He also admitted that the Aare land was at a distance of about 100-200 ft. from the spot of incident and prior to the incident he had seen the quarrel between the accused and deceased Baban but had not seen the accused persons going to the land of Baban. He denied the suggestion that the deceased was addicted to liquor and that about 1 and ½ years before, the deceased was seen lying with severe injuries in the land of Mhasoba under the influence of liquor. He did not know whether Baban was suffering from fits and whether he had a weak eye sight on account of his age. He also denied the suggestion that Baban had sustained injuries during the incident on account of his fall under the attack of fits. He also denied the suggestions that he had not seen the incident. He admitted that the deceased had mortgaged his land to him for one year and then he had purchased it prior to 32 years, but at the relevant time the deceased was cultivating his land on his own. 12 8. The evidence of PW 2 – Gorakh has supported the testimony of PW 1. He stated before the trial court that his land was at a distance of about 200-225 ft. from the spot and around the time of the incident, he was carrying grass and he heard the shouts coming from the land of Baban and, therefore, he approached towards that side. He noticed that accused no.1 was sitting on the chest of the deceased. He had also seen PW 1 trying to intervene in the quarrel between the two parties but because of the threats of accused no.3, he could not do so. He, therefore, went to village Mahur and narrated the incident to the wife and daughter-in-law of the deceased and at their request he accompanied them to the spot where he reached between 2 to 2.30 p.m. The daughter-in-law of the deceased went to village Parinche to bring a jeep so as to take the deceased to the hospital. Between 4 and 4.30 p.m., the police party arrived at the spot and recorded the statements. He also denied the suggestion that deceased was addicted to liquor and that he had suffered injuries on account of fits attack. He also stated that the son of the deceased by name Prakash had two wives and PW 4 – Sunita was one of them. He denied the suggestion that he had not seen the incident as narrated by him in his 13 statement recorded by the police. He also admitted that he had a catract in his eye and he could not see properly beyond the distance of 200 ft. His statement was recorded by police between 5.30 to 5.45 p.m. at the spot along with the statement of PW 1 – Babasaheb. He denied the suggestion that at the time of incident there was about 5 to 6 ft. high jawar crop and that the spot of incident could not have been seen, by him. 9. PW 4 – Sunita is the daughter-in-law of the deceased and stated before the trial court that on 1/2/2002 her husband – Prakash had gone to visit his sister at Sadobachiwadi along with some grains and the father-in-law left to the agricultural land at about 9 a.m. along with the cattle and to harvest the jawar crop. She had gone to wada as a construction labourer with one Rajgouri Mahurkar. The relations between her father-in-law and accused no.1 were not normal as there was a dispute between them on account of the family immovable property. At about 1 p.m., PW 2 had met her at her work place and told that accused had severely beaten her father-in-law by stones and both of them went to the mother-in-law who was at home. All the three reached the spot. She noticed that PW 1 along with his mother, wife and daughter was harvesting the 14 Jawar crop in his land and her father-in-law was lying in her land with bleeding injuries and two blood stained stones were seen near his head. She then proceeded to village Parinche and brought a jeep from there. However, one Mugut Atkari checked the pulses of her father-in-law and stated that he was dead. She, therefore, returned to village Parinche to phone up the police station at Saswad and lodge a complaint. Police reached the spot before she returned. In her cross examination she admitted that her husband had one more wife by name Sangeeta. She also admitted that her father-in-law used to be called as Deorishi and many persons used to come to him. She admitted that she was not an eye witness to the incident and there was no police case pending between the parties owing to the dispute on account of the immovable property. She also stated that her father-in-law had not taken any food when he started from home in the morning and did not carry his lunch as well. 10. All these three witnesses examined by the prosecution were natural witnesses and their evidence so far as it related to the incident, inspire confidence. It was not the case of the defence that either PW 1 or PW 2 had any enmity 15 with the accused party. It is also not in much dispute that both of them are the neighbouring land holders and, therefore, physical presence in their respective land was in normal course. There was no exaggeration in their depositions. It was submitted by Mrs. Kadu that PW 1 was unreliable and appeared to be unnatural in as much as after he had seen the accused party leaving the spot of incident, he did not rush to the spot and instead he had gone to bring water for his cattle. We do not find force in these submissions. Even PW 2 has clearly stated before the trial court that he had seen PW 1 trying to rush to the spot when accused were seen assaulting the deceased, but was prevented by the threats of accused no.3. Both these witnesses also stated that before the actual assault on the deceased, there was a quarrel between the parties and the accused had rushed to the spot where the deceased was harvesting the jawar crop. It was a hilly land and the presence of stones around was normal. It appears the accused no.1 made the deceased fall on the ground by empowering him, sat on his chest and inflicted multiple assaults by stone lying nearby on the head of the deceased. The medical evidence fully corroborated the disclosures made by these two witnesses regarding the assault by accused no.1. We are, therefore, satisfied that the trial court 16 was right in relying upon the evidence of PW 1 and PW 2. It is also clear from the C.A. report at Exh.35/3 that the paijama worn by accused no.1 at the time of assaulting the deceased had blood stains with group “AB” which was the blood group of the deceased. The head of the deceased was smashed which indicated that the assault continued for some time and it was not one single blow given on the head of the deceased. 12. Now coming to the culpability of accused nos.2 and 3, there appears to be some variance between PW 1 and PW 2. PW 1 stated that accused no.2 had joined her husband in assaulting the deceased on his head by a stone and the accused no.3 had threatened him not to come to the spot otherwise she would file a complaint against him. Articles 10, 12 and 13 which were saree, petticoat and blouse were stained with human blood as per C.A. report at Exh. 35/3. However, this by itself would not prove the participation of accused nos.2 and 3 in the attack on the deceased. It is possible that when the accused no.1 had assaulted the deceased on his head, these two were present either in their land or near the spot. But the evidence of these two witnesses, does not, beyond a reasonable doubt, indicate that both these accused had, in fact, participated in the assault 17 on the deceased along with accused no.1. Even otherwise, the deceased was an aged person and accused no.1 had sufficiently overpowered him and he did not require any other person’s assistance to continue the assault. It is also possible that they had joined accused no.1 in the initial quarrel with the deceased but that by itself would not be a reason to fasten a joint liability of causing murder of the deceased. When the evidence on record is doubtful regarding the involvement of accused nos.2 and 3 on the point of their involvement in causing assault by stone on the deceased, it would be unsafe to convict them with the aid of Section 34 of IPC and hold that they were jointly responsible along with accused no.1 in causing the murder of the deceased and to this extent we find that the trial court fell in error. In addition, in the cross-examination of PW 1 and PW 2 the defence has successfully brought out material contradictions regarding the involvement of these two accused in inflicting assaults on the deceased with stone. Hence, we feel that the case of the prosecution for an offence punishable under Section 302 read with Section 34 of IPC has not been established beyond reasonable doubt against these two accused i.e accused nos.2 and 3 and, therefore, they must get the benefit of doubt. 18 13. In the premises, we confirm the order of conviction and sentence passed in Sessions Case No. 156 of 2002 against accused no.1 – Popat @ Bhujangrao Bhausaheb Mahurkar. At the same time, we quash and set aside the order of conviction and sentence passed against accused no.2 – Sou. Vandana Popat Mahurkar and accused no.3 – Kum. Meena Bhausaheb Mahurkar for the offence punishable under Section 302 read with Section 34 of IPC in Sessions Case No. 156 of 2002. Accused No.1 shall be entitled to set off under Section 428 of Cr.P.C. The appeal is thus allowed partly qua accused nos.2 and 3 and it is dismissed so far as the accused no.1 is concerned. The appointed Advocate’s professional fee is quantified at Rs.4000/-. (A. A. SAYED,J) (B.H. MARLAPALLE,J.)