1 cria55-10.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 55/2010 Arjun Ramchandra Kamble Age 49 years, Occ-Agri R/o village Nimgaon-ghana Tq. and Dist.Ahmednagar .. APPELLANT VERSUS The State of Maharashtra Through M.I.D.C. Police Station Ahmednagar, Dist.Ahmednagar [Copy to be served on the office of learned Public Prosecutor, High Court of Bombay, Bench at Aurangabad] ..RESPONDENT .... Shri S.S.Deshmukh,Advocate for appellant. Shri D.V.Tele,A.P.P. for Respondent-State. .... 2 cria55-10.odt CORAM : NARESH H.PATIL & T.V.NALAWADE,JJ. JUDGMENT RESERVED ON : 20/04/2011 JUDGMENT PRONOUNCED ON : 29/04/2011 JUDGMENT : [PER T.V.NALAWADE,J.] 1] This appeal is filed against judgment and order of Sessions Case No.8/2007 which was pending in the Court of Additional Sessions Judge, Ahmednagar. By the decision dated 17/12/2009, the appellant is convicted and sentenced by the trial Court for offences punishable under Sections 302,452 and 341 of I.P.C. Appellant was accused no.1. Accused nos.2 and 3 were also convicted and sentenced for the offences punishable under Sections 452 and 323 of I.P.C. but they have not challenged the decision of trial Court. In short, the facts leading to the institution of the appeal can be stated as follows : 2] Deceased Barku Charude was the husband of complainant Housabai (P.W.3). Deceased was living with his wife and 2 sons by name Raju (P.W.4) , Babarao and wife of Babarao viz. 3 cria55-10.odt Manisha in a house at village Nimgaon-ghana, Tq. & Dist. Ahmednagar. Appellant is son of sister of the deceased. House of the appellant is situated at some distance from the house of deceased in the same village. About 1 month prior to the incident, gold ornaments of the wife of accused viz. Latabai -accused no.3 were stolen by somebody and Latabai had suspicion against Housabai (P.W.3) and Manisha. As the suspicion was expressed by Latabai, relations between the 2 families had become strained. 3] On 12/9/06, a meeting was held between the family members of deceased and family members of appellant. Some other relatives also attended the meeting to act as mediators. In the meeting, deceased agreed either to return the ornaments or its price within 1 month to the family of accused. 4] The incident took place after 8 p.m. on 11/10/06. At about 8 p.m., appellant, his 2 sons and Latabai went to the house of deceased and they started quarreling as the ornaments were not returned. Deceased, Housabai, father of Housabai came outside of the house of deceased when the quarrel started. After coming out of the house of the deceased, appellant picked up an axe which was lying near fire wood of the family of deceased in the courtyard and the appellant gave a blow of axe from its blunt side on the head of deceased. Other accused had brought sticks with them and they assaulted the deceased with sticks on other parts of the body. Deceased sustained injury to his head and so he 4 cria55-10.odt was taken inside of the house and he was made to sleep on a cot in the house. Deceased became unconscious due to this injury. 5] Rajendra, son of deceased attempted to inform about this incident to his relatives on phone of one Tupe, but accused no.1 prevented him from doing so. At about 11 p.m. the aforesaid 4 persons from the family of accused no.1 and other persons like brother of accused no.1 and other relatives entered the house of deceased and they assaulted deceased with sticks when deceased was lying in unconscious condition on the cot. 6] The family of deceased could not arrange to shift the deceased to dispensary or hospital. Barku succumbed to the injuries at about 11.30 p.m. At about 4 a.m. on 12/10/06, family of deceased could contact police patil and in turn police patil contacted police. Police visited the house of deceased on the morning of 12/10/2006 and they recorded report given by Housabai. On the basis of this report, Crime at Cr.No.147/06 came to be registered in M.I.D.C. police station, Ahmednagar. Police prepared inquest panchanama and spot panchanama and the dead body was referred for post mortem examination. 7] During the course of investigation, statements of eye witnesses like Rajendra and others came to be recorded. Accused no.1 came to be arrested. While in police custody, accused gave statement that he had concealed the axe and clothes in his house and then accused produced the axe before 5 cria55-10.odt the police. Blood samples of accused and deceased were collected and the articles taken over during investigation were sent to C.A. office. Shri Bhusare (P.W.11) A.P.I. made investigation of the case and he filed charge sheet in the Court of 6th J.M.F.C. Ahmednagar. The J.M.F.C. committed the case to the Court of Sessions and the trial Judge framed the charge for offences punishable under Sections 302, 143, 147, 341, 323, 504, 506, 452 and 149 of I.P.C. All the accused persons pleaded not guilty. Prosecution examined in all 12 witnesses and it relied upon the aforesaid documentary evidence. Accused took defence of total denial but no defence evidence is given. 8] The trial Court has believed both the eye witnesses viz. Housabai (P.W.3) and Rajendra (P.W.4). The trial Court has taken into consideration some circumstantial evidence for convicting the present appellant. In the appeal, both the sides are heard. The points raised by both the sides are being discussed alongwith evidence. 9] The defence has disputed that Barku died homicidal death. Suggestions are given to the eye witnesses that in drunken condition, the deceased fell from compound wall of his house. Suggestions are also given to medical officer who conducted post mortem examination that the fatal injury which was found on the head can be caused due to fall from the height of 5 ft. Suggestions are also given to the effect that due to suspicion taken by the family of accused with regard to theft of ornaments, 6 cria55-10.odt accused is falsely implicated in the case. Thus, the evidence on motive is not disputed. The deceased was maternal uncle of accused no.1 and even other accused like Mirabai are close relatives of the prosecution witnesses viz. Housabai and Rajendra. The evidence on record shows that Hivarebazar is the native place of the deceased and deceased had shifted to village Nimgaon-ghana about 2 years prior to the date of incident. Admittedly, he was occupying the room owned by accused no.5 Mirabai with her permission. The evidence on record shows that after the incident, Housabai and other members of the family of deceased shifted to Khadakwadi, Tq. Parner. This defence and other circumstances need to be kept in mind while appreciating the evidence. 10] Bhusare [P.W.11] who made the investigation has given evidence that he visited the house of deceased on 12/12/06 and he prepared inquest panchanama Exh.67 and spot panchanama Exh.68. He has deposed that there were injuries on the dead body like head injury. The panch witness who has given evidence on these 2 documents turned hostile but in view of the aforesaid defence taken by the accused, the evidence of Bhusare [P.W.11] can be held to be sufficient for proof of Exhs.67 and 68. Similarly, post mortem report at Exh.65 can be used to ascertain the nature of the death. 11] Dr.Gaikwad [P.W.10] is examined for proving post mortem report. The medical evidence shows that ante-mortem injuries 7 cria55-10.odt were found on the dead body. The fatal injury was Contused Lacerated Wound on frontal part of head which was near midline and of the size 6x1/2 cm. The injury was skin deep and it had caused depressed fracture to frontal bone and the fracture was in multiple direction. The depression had size of 7x10x5 cm. The second injury, Contusion was present near left eye brow. The third injury was a swelling on left lip and the forth injury was a contused abrasion over right knee joint. The doctor has given evidence that all these injuries were caused by hard and blunt object and the death took place due to injury caused to the brain which was due to surface wound no.1 This injury caused cardio respiratory arrest as there was intra-cranial hemorrhage. Doctor has given evidence that this injury is sufficient in ordinary course of nature to cause death. Article no.10 axe was shown to the Doctor and Doctor has given opinion that blunt side of the axe can cause such injury. 12] In the cross examination, Doctor Gaikwad [P.W.10] has admitted that if a person falls on a stone from height of 5 ft. injury like surface wound no.1 can be caused. The doctor has further stated that if the stroke is given, fracture may spread in skull. In the present case, deceased had sustained other injuries also and if the exact location of fatal injury is considered, it does not look probable that the injury was sustained due to fall on a stone. This Court has no hesitation to hold that the fatal injury was caused only due to a blow of hard and blunt object and Barku died homicidal death. There are other reasons also for coming to this 8 cria55-10.odt conclusion. 13] Housebai [P.W.3] has given evidence that the wife of accused no.1 had suspicion that Housabai and Manisha had stolen gold ornaments of Latabai from her house. She has given evidence that meeting was held on 12th of previous Month between members of the 2 families and some other relatives and in the meeting, deceased had given promise to reimburse the loss to the appellant. The suggestion given to these witnesses and other witnesses show that this part of the story is not seriously disputed by the defence. 14] Housebai [P.W.3] has further deposed that at about 8 p.m. on the date of hte incident, she was present in the house with deceased, Rajendra, daughter and 2 other relatives. She has given evidence that accused no.1, the wife of accused no.1 and 2 sons of accused no.1 came to their house and they were holding sticks. She has deposed that when the accused started asking about the ornaments, she, deceased and Rajendra came out of the house and then, the incident took place. She has deposed that accused no.1 picked up axe which was lying near fire wood of her house in the courtyard and accused gave blow of axe from blunt side on the head of the deceased. She has deposed that other 3 members of the family of accused no.1 assaulted deceased with sticks but on other parts of the body. She has given evidence that she was also assaulted by Latabai by using stick. She has deposed that when she rescued herself, she 9 cria55-10.odt found that her husband was lying on the cot in her house and blood had accumulated near the cot. She has stated that the deceased was unconscious. During cross examination, she has given admission that 2-3 minutes after the blow received on the head, the deceased had asked for water in the house. 15] Housabai [P.W.3] has then given evidence on the second incident which allegedly took place at 11 p.m.. She has deposed that these 4 persons, brother of accused no.1 and other accused entered her house and they gave blows of sticks to the deceased who was lying in unconscious condition on the cot. 16] The evidence of Housabai [P.W.3] shows that she is blaming only accused no.1 for the fatal blow. In the F.I.R., Exh.42 also Housabai has mentioned the same thing. In some part of the judgment, the trial Court has wrongly mentioned that the blow was given on the head of deceased by accused no.1 when they were present inside of the room. It appears that due to circumstance that the blood was present only inside of the room and his evidence was recorded before other judicial officer, such error is committed by the trial Court. The Court cannot draw an inference which is not the case of prosecution witnesses. In any case, that circumstance cannot change the fate of the case. 17] Rajendra [P.W.4] has given similar evidence. The evidence of 2 eye witnesses and the evidence of investigating officer shows that as soon as police reached the house of complainant, 10 cria55-10.odt the report was given and the crime came to be registered. The statement of P.W.4 was also recorded immediately after recording of the F.I.R. and that is brought on record during cross examination of Rajendra. Much was argued in respect of the delay caused in giving report by Housabai to police. Evidence is given by Housabai that P.W. 4 had attempted to inform about the incident to relatives on phone of Tupe but accused no.1 had prevented him from doing so. No such evidence is given by Rajendra [P.W.4]. Further, it is brought on record in the evidence of these witnesses that brother of deceased viz. Kishan is also resident of village Nimgaon-ghana and house of Kishan is situated at 100 ft. from the spot of offence. Kishan is not used as a witness and the evidnece of these 2 witnesses shows that Kishan avoided to come to the residential place of deceased on that night even when such incident took place. 18] The aforesaid evidence shows that inspite of incident which took place at about 8 p.m. F.I.R. was given on the next morning. Evidence is given that information about incident was given to police patil at about 4 a.m. on 12/10/06. Evidence is also given to show that they attempted to call conveyance for shifting the deceased to hospital but they could not get conveyance. At this place, other circumstances which are already quoted needs to be considered. The family of the deceased was virtually outsider in this village as they had recently shifted to village Nimgaon-ghana. Immediately after the incident, they left this village. All the witnesses including panch witnesses from the present case who 11 cria55-10.odt hail from village Nimgaon-ghana have turned hostile. No treatment could be given to the deceased. The circumstances indicate only one thing that after the incident, there was virtually no help to Housabai from anybody. One more circumstance that there was allegation of theft of gold ornaments made against Housabai and her daughter in law needs to be kept in mind. The circumstance that accused no.1 is a son of sister of the deceased is also important in this regard. These circumstances throw light on the reason of delay caused in giving report to police. This Court holds that due to these circumstances, the delay caused in giving report by Housabai is not fatal to the case of prosecution. 19] Much was argued for defence on the basis of circumstance that in F.I.R. it is not specifically mentioned that Rajendra had also come out of house at about 8 p.m. Rajendra was aged about 12 years at the relevant time. In ordinary course, a boy who was receiving education in school is expected to be at home at that time. However, there is a mention in F.I.R. that immediately after the incident of 8 p.m. Rajendra had left the house. Thus, it cannot be said that the name of Rajendra was not at all mentioned in the F.I.R. as a witness. 20] For prosecution on the aforesaid point one case reported in AIR 2003 S.C. page 4664 in the case of Raj Kishore Jha V/s State of Bihar and others was cited. In this case, the Apex Court has observed that credibility of witness cannot be doubted merely because his name does not appear in F.I.R. This 12 cria55-10.odt proposition cannot be disputed. In the present case also, there are circumstances to support the presence of Rajendra on the spot of offence at the relevant time and the trial Court has believed this witness. 21] For prosecution, the case reported in AIR 2003 S.C. page 539 in the case of Yunis @ Kariya V/s State of Madhya Pradesh was cited. In this case, observation is made that when medical evidence is consistent with direct evidence and when prosecution is able to establish the manner in which the offence was committed and also the place where the offence was committed, conviction can be given on the basis of such evidence. It is further observed that when there is direct evidence, absence of motive has no consequence. The propositions made in this case also cannot be doubted. In the present case also there is support to the oral evidence of the 2 witnesses of medical evidence. The medical officer [p.w.7] is examined to prove that at relevant time, Housabai had also sustained injuries though they were simple. Thus, there is circumstantial check to the evidence of Housabai. In ordinary circumstances, the presence of Rajendra in the house at relevant time also needs to be presumed. The evidence of these 2 witnesses the evidence of medical officer who conducted post mortem and evidence on motive is sufficient to prove that the fatal blow was given by appellant-accused. 22] The trial Court has not believed the evidence given as 13 cria55-10.odt against the remaining accused in respect of second incident. It is already observed that by mistake, at a place the trial Court has observed that the incident probably took place inside of the room. The medical evidence shows that fatal blow had caused depressed fracture of skull bones and probably hard and blunt object was used for causing this injury. The aforesaid evidence shows that immediately after the blow received on the head, the deceased was taken inside of the room. The spot panchanama shows that no blood was found in the courtyard of the house. There was profused bleeding inside of the room and some blood was found on one wall of the room also. Due to presence of blood inside the room, the trial Court has committed error in fixing the spot of the incident but that is not the case of the prosecution witnesses. 23] If there was no immediate bleeding, as there was the blow on head portion by hard and blunt object, which had caused depressed fracture possibly before starting of profused bleeding, deceased was taken inside the room. This circumstance further shows that as the blood did not come out immediately after the blow, there was no question of coming of the blood on the axe or on the clothes of accused no.1. Admittedly, axe belongs to the family of Housabai. If the axe was not of the accused, in ordinary course, there was no reason for the accused to take the axe with him. The evidence of Investigating Officer [P.W.12] shows that appellant came to be arrested on 12th. The statement under Section 27 of the Indian Evidence Act is shown to be recorded on 14 cria55-10.odt 16th and the recovery of the axe is shown to be made from the house of accused no.1. There is no corroboration of evidence of independent witness like panch witness to evidence of Investigating Officer. Articles like the weapon and the clothes of accused were sent to C.A. office after one month as per office record. No explanation whatsoever is given by prosecution in respect of this delay caused at both the stages. In view of the aforesaid circumstances and the delay caused in making the discovery of the weapon, the so-called evidence shown to be collected under Section 27 of the Evidence Act, cannot be believed as trustworthy. As there is a direct evidence, even if aforesaid evidence u/s 27 is excluded, there is sufficient evidence to prove the part played by accused no.1 in causing death of Barku. 24] For defence, it was alternatively submitted that at the most, offence will fall u/s 304 Part II of I.P.C. It was submitted that from the circumstances, intention to commit murder cannot be gathered and further the intention to inflict the injury with the knowledge that such injury may cause death cannot be inferred. There is force in the argument advanced for the appellant. The aforesaid evidence and the case of the prosecution shows that the incident took place in the night time and in the courtyard of the house of deceased. Many persons were present in the courtyard of which the exact size is not given. There is nothing on record to show that there was facility of electricity in the courtyard. On the contrary, there is admission that for putting 15 cria55-10.odt bulb of electricity inside of the room, the supply was taken from the neighbour. There is nothing on the record with regard to availability of street light. Admittedly, appellant had not brought the axe to the spot. It was picked up from the courtyard of the house of deceased. On one side there were 2 young sons of the accused no.1 with him and on the other side three adult male persons, Rajendra and Housabai were present. As per the version of accused, accused no.1 and his family members had come there to ask about the gold ornaments which were to be returned by the family of deceased. Evidence is given by Housabai that there was talk about the ornaments in the courtyard also. The 2 witnesses are interested witnesses and so there is no assurance about the words used by side of deceased during the talk. The period of one month fixed for returning the ornaments was to come to an end on the next day and so, the accused had come there. The deceased was maternal uncle of accused no.1 and except the suspicion, about the theft of gold ornaments there was nothing to create strained relations between the 2 families and so, it is not possible to gather intention of murder. As it was night time and blunt portion of axe was used, it is not possible to infer that the blow was intentionally given on the head. Even when there was an opportunity to the appellant, no second blow was given by him. Thus, the circumstances show that no undue advantage was taken by the accused no.1 and he did not act in cruel or unusual manner. No reason is given for non examination of the father of Housabai who allegedly intervened in the incident. As already observed, there is no 16 cria55-10.odt evidence of any independent witness like a neighbour of the deceased. 25] The aforesaid circumstance shows that there is possibility that accused had become angry due to the words used by deceased with regard to the promise given by him to return the ornaments. There is possibility that the deceased had tried to deny the liability which was admitted in the past by him in the presence of mediators. There is a probability that the quarrel started due to these circumstances and in the quarrel, without premeditation, fight started and in the fight, the accused no.1 gave blow of axe from blunt side without aiming it on the head. However, as the axe was used and there was a possibility of hitting of the axe to the head portion, the knowledge can be presumed that accused knew that by such act, he was likely to cause the death. Thus, due to the nature of evidence in the present case and aforesaid circumstances, a possibility is created that the case falls under Exception 4 to Section 300 of I.P.C. As no intention can be gathered, but knowledge can be gathered, the case falls under Part II of Section 304 of I.P.C. 26] The trial Court has convicted the appellant-accused for offence punishable u/s 302 of I.P.C. as the aforesaid probabilities are not taken into consideration. In view of the circumstances mentioned above, the judgment and order of trial Court needs to be set aside and the accused appellant needs to be convicted for offence punishable u/s 304 Part II of I.P.C. Rajendra has not 17 cria55-10.odt given evidence that he was restrained by accused near telephone booth of Tupe and so the appellant cannot be convicted for offence punishable u/s 341