IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO. 575 OF 1988 CRIMINAL APPEAL NO. 575 OF 1988 CRIMINAL APPEAL NO. 575 OF 1988 The State of Maharashtra. ....Appellant. Vs. 1. Laxman Smabhaji Shejul. 2. Bira Tuka Sehjul. 3. Keru Dnynu Shejul. 4. Rajaram Bhimaji Shejul. 5. Atmaram Keru Shejul. 6. Sarjerao Biru Shejul. 7. Sukhadeo Biru Shejul. 8. Anubai Laxman Shejul. 9. Indrabai Keru Shejul. 10. Sambhaji Laxman Shejul. ....Respondents. ...... A.P.P. Shri. F.R. Shaikh for the Appellant. Adv. Smt. S.D. Khot for the Respondent Nos. 1 to 7. ...... CORAM: S.S.PARKAR & CORAM: S.S.PARKAR & CORAM: S.S.PARKAR & R.S.MOHITE, JJ. R.S.MOHITE, JJ. R.S.MOHITE, JJ. DATED: 2ND SEPTEMBER,2004 DATED: 2ND SEPTEMBER,2004 DATED: 2ND SEPTEMBER,2004 ORAL JUDGMENT ( PER R.S. MOHITE, J.) ORAL JUDGMENT ( PER R.S. MOHITE, J.) ORAL JUDGMENT ( PER R.S. MOHITE, J.) 1. This is an appeal filed by the State of Maharashtra seeking to quash and set aside the Judgment and order passed by the Additional Sessions Judge, Sangli on 28.3.1988 in Sessions Case Nos. 112 of 1986 and 125 of 1986 acquitting all the accused being tried :2: in the two sessions cases from the charges under Sections-147, 148, 149, 302 read with 34, Section-324 read with 34, Section-323, 149 read with 34 of the Indian Penal Code and the further charge against the accused No.3 under Section 324 of the Indian Penal Code, accused Nos. 1,2 and 4 under Section 302 of the Indian Penal Code and accused Nos. 6 to 10 under Section-323 of the Indian Penal Code. 2. The brief facts of the prosecution case were as under: a) That, the deceased Darayappa Shejul was a resident of Village Khalati situated in District Sangli. He was the husband of P.W.No.3 Shalini. Accused No.1 Laxman was a step brother of the deceased Darayappa. Accused No.10-Sambhaji was the father of Darayappa. Accused Nos. 2- Bira and Accused No.3 Keru were the cousin brothers of Darayappa. Accused No.4 Rajaram was the son of accused No.3 Keru. Accused No.6 Sarjerao and accused No.7 Sukhadeo were the sons of the accused No.2 Bira. Accused No.8 Anubai was the wife of accused No.1-Laxman, accused No.9 Indrabai was the wife of accused No.3 Keru and accused No.5 Atmaram was the son of accused No.9 Indrabai. :3: b) The family of the accused and the deceased were residents of an area in the village known as Shejul Vasti. Their agricultural lands were near the said vasti and situated on the western side of the vasti. For the last about 15 years, deceased Darayappa had separated from his step brother i.e. accused No.1-Laxman. Darayappa had six children from P.W.No.3 Shalini. He, P.W.No.3 Shalini, his mother Tanubai and his six children were all residing together in one house. Out of the six children of Darayappa and Shalini, on the date of the incident, daughter Ashakka was aged about 14 years and daughter Ushakka was aged about 10-years. Accused No.1-Laxman, Accused No.10-Sambhaji, Accused No.8 Anubai and Housabai-mother of accused No.1-Laxman were residing together in a separate house. The agricultural lands belonging to the families had been partitioned and each branch of the family was cultivating a separate share. However, the source of water for irrigating these lands was a common well. The family members had agreed to draw the water from the common well by rotation and the cycle for drawing such water was a period of 12 days. Out of these 12 days, one of the accused was to draw water for the first three days. For the next three days, accused :4: No.4 Rajaram was to draw water, followed by accused No.3 Bira for the next three days. For the last three days accused No.10 Sambhaji was to draw the water. During Sambhaji’s turn of three days Darayappa was used to draw the water for 1.1/2 day and his step brother accused No.1-Laxman was drawing water for the remaining 1.1/2 day. This arrangement had been in place for the last about 13 years. c) The incident resulting the death of Darayappa took place on 25.4.1986, between 7.00 to 7.30a.m. in Gat No.395 belonging to Darayappa. 15-days prior to the incident turmeric crops had been planted in the agricultural land of the Drayappa. This crop had been irrigated by drawing water from the common well. That, on the date of the incident this crop had been harvested. d) Two days prior to the incident, which was a Wednesday, it was Darayappa’s turn to take water from the common well. Darayappa was also to take water on the next day i.e. Thursday. However, on both these days, accused No.1 Laxman took water from the well and therefore, on the date of the incident, which was a Friday, when Darayappa went to his agricultural land :5: and found that accused No.1 Laxman, accused No.2-Bira, accused No.3- Keru, accused No.4- Rajaram and accused No.10 Sambhaji were present in the field, he went up to them and requested these persons to allow him to draw water from the common well. Accused No.1-Laxman, accused No.2-Bira, accused No.3-Keru and accused No.4 Rajaram refused to allow the deceased Darayappa to draw water from the common well. P.W.No.3-Shalini wife of Darayappa had followed her husband to the agricultural land and was present near Darayappa. She saw that accused No.2 Bira hit Darayappa with a stone on his head, accused No.1 Laxman hit Darayappa with an axe on his head and accused No.4 Rajaram also gave an axe blow on the head of Darayappa. e) As a result of these blows, Darayappa fell on the ground. After he fell, accused No.1 Laxman, and accused No.4-Rajaram given further axe blows on the person of Darayappa when he was lying on the ground. f) On seeing the assault on her husband, P.W.No.3 Shalini fell on the body of her husband to save him from the attacks. She made a request that they should not beat her husband. At that time, accused No.8 Anubai and accused No.9 Indrabai came to the spot. :6: Accused No.5 Atmaram, accused No.6-Sarjerao and accused No.7 Sukhadeo also came to the spot armed with sticks. Accused Nos. 5, 6 and 7 started delivering stick blows on the ankles, knees and back of Darayappa. Accused Nos. 8 and 9 pulled her hair and caused her to fall on the ground. They delivered fist and kick blows to P.W. No.3. Shalini. g) Rajaram Kashiram Pawar and Dnyanu Pawar who had also came there intervened and attempted to separate the parties. Rajaram Pawar tried to snatch away an axe from the hands of accused No.1-Laxman and in this process Rajaram Pawar himself suffered an injury. P.W.No.3 Shalini attempted to snatch away the axe from the hands of accused No.3 Keru and during this scuffle, Keru received an axe blow on his forehead, causing an injury. Accused No.10 Sambhaji hit Rajaram Pawar with an aluminium pot. The daughters of Darayappa namely Ashakka and Ushakka came running and they also tried to separate the parties. Krishanabai Shejul and Parubai Shejul were two other ladies standing at a distance of 15ft. from the spot where Darayappa was assaulted. Darayappa sustained several bleeding injuries on his person and fell on the ground. The accused persons then went away from the spot. :7: h) After some time one Akaram Shejul and Shankarappa came to the spot. They arranged for a bullock cart. Darayappa was lifted from the ground and put into the bullock cart. P.W.No.3 Shalini, Darayappa, Shankarappa and Akaram then came in the bullock cart upto Village Kharati. From there, they travelled in a jeep to Government Dispensary, Jath. i) At the Jath Medical Dispensary, P.W.No.6 Dr.Mahadeo Baburao Salgar was working as Medical Officer. He examined Darayappa at about 11.a.m. on 25.4.1986. He noticed the following 17 injuries on the person of Derayappa. 1. C.L.W. over forehead on right side crescent shaped measuring 8cm x 3cm. scalp deep. Bleeding was present. Skull bone was depressed 1 cm. in depth and there was fracture of frontal bone. 2. C.L.W. parallel and 2 cm. above first injury. It was measuring 5 cm. x 1 cm. scalp deep bleeding was present. :8: 3. C.L.W. over suggagal suture extending from occipital bone till frontle bone. It was measuring 10 cm. x1/2 cm. scalp deep. Bleeding present. 4. C.L.W. parallel to injury No.III. 3 cm. away from injury No.II on right carestal bons measuring 9 cm. x 3 cm. and scalp deep bleeding present. 5. C.L.W. parallel to injury Nos. 4 and 5 from injury No.4 on right parital bone. It was measuring 5 cm x 1 cm and scalp deep. Bleeding was present. 6. C.L.W. occipital bones 7 cm x 1/2 cm scalp deep. Bleeding was present. 7. C.L.W. perpendical to injury No.6 on occipital bone. It was measuring 5 cm x 1/2 cm. scalp deep. Bleeding was present. :9: 8. C.L.W. occipital bone 3 cm. x 1/2 cm. scalp deep in the line of injury No.7 and 4 cm. away from injury No.7. 9. C.L.W. over belt parital bone 10 cm. from midline. It was measuring 5 cm. x 3 cm. scalp deep. Bleeding was present. 10. Ecctoymees on right arm lateral aspect. It was measuring 8 cm. x 2 cm. reddish in colour. 11. Minor abrasion over back near first number spine. 12. Minor abrasion over right foot near fight elbow joint. 13. Minor abrasion on middle of the right leg on anterior aspect. 14. C.L.W. over left elbow joint on lateral aspect. It was measuring 3 cm. x 1/2 cm. skin deep. Bleeding was present. :10: 15. Eccomyses above 3 cm. from umbilicus. It was measuring 14 cm. x1 cm. raddish in colour. 16. C.L.W. over rirhg knees joint. On anterior aspect 1 cm. x 1/2 cm. Bleeding was present. 17. Eccomysis below right side of chest on back below interior and of scapula. It was measuring 11 cm. x 1 cm. reddish in colour. He issued a Medical certificate (Exh.45). He observed therein that all the injuries were caused by stick blows and that the the age of the injuries was six hours. Then under his covering letter he referred Darayappa to Civil Hospital, Sangli for further treatment. j) After completing the examination of Darayappa, Dr. Mahadeo B. Salgar then examined the injuries suffered by P.W. No.3 Shalini. He found following four injuries on her person. :11: 1) Incised wound in between middle and index finger of left hand measuring 7 cm. x 1 cm. taprin both ends. 2) C.L.W. over dorsal of the middle finger of left hand measuring 4 cm. x 1/2 c.m. bleeding present. Proximal phlox exposed. 3. Depression of skull bone on right side of forehead measuring 2 cm. in diameter. 4. Escomyaes two in number below right infracapiler parallel to each other. No.1 was 5 cm x 1 cm. and other was 6 cm. x 1 cm. reddish in colour. He issued a Medical certificate (Exh.48) in respect of the injuries found on the person of Shalinibai. He opined that the injury No.1 was caused by hard and sharp object, whereas injury Nos. 2 to 4 were caused by hard and blunt object. He referred Shalini also to the Civil Hospital, Sangli under his covering letter (Exh.49). k) On the way to the Civil Hospital, Shalini went :12: to the sub Police Station and lodged a complaint. The police also referred Darayappa and Shalini to the Civil Hospital, Sangli and later on Darayappa and Shalini were admitted in Civil Hospital for treatment. l) Darayappa died at the Civil Hospital, Sangli on 30.4.1986 and on the same day at about 2.00p.m. post mortem of the dead body of Darayappa was carried out by P.W.No.7 Dr. Ashok Kulkarni. m) P.W.No.8 Somanna Kumathekar was a P.S.I. attached to the Jath Police Station. He was the police Officer who had recorded the complaint of P.W.No.3 Shalini at about 11.a.m. on 25.4.1986 and had referred Darayappa and Shalini to the Civil Hospital, Sangli for further treatment. On the basis of the complaint lodged by Shalini (Exh.41) P.S.I. Somanna registered C.R. No.48 of 1986 for offences punishable under section- 147,148,149, 307, 323 and 324 of the Indian Penal Code. The said C.R. was registered at about 12.15p.m. on that day. In pursuant thereto P.S.I. Somanna commenced an investigation. He proceeded to the spot and recorded the statement of P.W.No.5 Rajaram. He found that P.W.No.5 Rajaram had also suffered injuries and therefore, he referred Rajaram :13: Pawar to the Medical Officer Jath for examination and treatment. He then went to the scene of offence and reached the said spot at 1.30p.m. In the presence of two panchas he drew the panchanama of the scene of offence (Exh.18). Under the said panchanama he attached blood stained earth (Article-1), simple earth (Article-2), a black coloured blood stained stone (Article-3), red and white colour bangle pieces (Article-4), a spade with blood stained handle (Article-5), a blood stained towel (Article-6), a blood stained cap (Article-7), blood stained petticoat (Article-8) and blood stained blouse (Article-9) on 25.4.1986. He also recorded the statements of seven other witnesses including P.W.No.4 Ashakka. He returned back to the police station at 11.30p.m. and at that time Police Station Officer Head Constable Aiwale produced before him a complaint lodged by accused No.3 Keru for a non cognizable offence and the injury certificates of the accused persons. These documents were incorporated in the investigation papers by P.S.I. Somanna. P.S.I. Somanna then went and arrested the accused Nos. 1 to 4 at about 11.30p.m. on 25.4.1986. At the time of arrest he found that the clothes of the accused persons were stained with blood. The blood stained clothes found on the person of the :14: accused Nos. 1 to 4 were attached under a panchanama (Exh.20) on 26.4.1986. These clothes of the accused were marked Article Nos. 10 to 20. On 26.4.1986 P.S.I. Somanna recorded the statements of four witnesses at Khalati. On 27.4.1986 the blood stained clothes of Darayappa and Shalini were attached under panchanama (Exh.21). The said clothes were marked as Articles 21 to 25) before the court. n) On 27.4.1986 accused No.1 Laxman disclosed that he had hidden an axe and offered to show the same. The memorandum of statement was thus drawn (Exh.58). At the same time, accused No.4 Rajaram also disclosed that he had kept an axe hidden on the roof of the cattle shed near his house and stated that he was willing to produce the same. A separate memorandum relating to the statement made by accused No.4 was also reduced to writing (Exh.59). Thereafter, police, panchas, accused No.1 Laxman and accused No.4 Rajaram came to village Khalati. There accused No.1 Laxman led the police and panchas to a farm house and he took out one hidden axe from the bathroom. It was found that the blade of the axe was stained with blood. This axe was attached under panchanama (Exh.60). The axe so seized at the behest of accused No.1 Laxman was Article :15: 26 before the court. The accused No.1 Laxman was then made to sit in the Jeep. Thereafter, accused No.4 Rajaram led the police and the panchas to his cattle shed. Accused No.4 Rajaram then took out an axe which was hidden in the roof of the cattle shed and the same was attached under panchanama (Exh.61). Axe discovered at the behest of accused No.4 Rajaram was (Article 27) before the court. o) Subsequently on the same day the house of accused No.3 Keru was searched in the presence of the panchas and two blood stained sticks were recovered under a panchanama (Exh.32). These two sticks, discovered from the house of accused No.3 Keru were (Articles 28 and 29) produced before the court. Thereafter, the house of accused No.2 Bira was also searched in the presence of two panchas and two blood stained sticks were discovered from her house and these were attached under panchanama (Exh.33). These sticks were (Article Nos. 30 and 31) as produced before the Trial Court. Accused No.10 Sambhaji produced an aluminium pot which was attached under panchanama (Exh.22). This aluminium pot was (Article 32) as produced before the court. :16: p) Subsequently on 27.4.1986 P.S.I. Somanna arrested accused Nos. 5 to 10 at about 3.30p.m. As the injured Darayappa died in Civil Hospital on 30.4.1986 the offence which had been registered earlier was converted into Section 302 of the Indian Penal Code. On 30.4.1986 P.S.I. Somanna prepared an inquest panchanama (Exh..17) of the dead body of deceased Darayappa. On the next day he collected the post mortem notes (Exh.21) relating to the post mortem conducted on the dead body of the Darayappa. q) On 6.5.1986 P.S.I. Somanna collected the blood samples from the persons of accused Nos. 1 to 4 in order to ascertain their blood groups. Then under his covering letter (Exh.62), P.S.I. Somanna sent two phials containing blood of accused Nos.1 to 4 and other attached property to the Chemical Analyser for examination and report. r) On 8.5.1986 P.S.I. Somanna requested the Talathi of Jath to draw a sketch of the scene of offence. Accordingly such a sketch was drawn by the Tahasildar (Exh.30). s) On 31.5.1986 P.S.I. Somanna recorded the :17: supplementary statement of P.W.No.3 Shalini Shejul and collected the Injury Certificate (Exh.52). t) On 19.9.1986, on completion of the investigation P.S.I. Somanna filed a charge sheet in the court of J.M.F.C. Jath alleging offences under Sections-147,148,149,302, 337 and 323 of the Indian Penal Code against the accused persons. 3) That, on the case being committed to the Court of Sessions, the Trial Court framed the charge. All the accused were charged for offences punishable under Sections-147, 148,149,302 read with 34, 324 read with 149, 324 read with 34, 323 read with 149 and 323 read with 34 of the Indian Penal Code. Accused No.1,2 and 4 were charged under Section-302 of the Indian Penal Code individually. Accused No.3 was charged under Section 324 individually and accused Nos. 6 to 10 were charged under Section-323 of the Indian Penal Code individually. 4) At the trial, the prosecution led the evidence of eight witnesses to prove its case against the accused. Out of these witnesses, P.W.No.3 Shalini Shejul, P.W.No.4-Ashatai and P.W.No.5 Rajaram Pawar :18: were cited as eye witnesses. P.W.No.6 Dr. Mahadeo Baburao Salgar and P.W.No.7 Dr. Ashok Kulkarni were doctors examined to prove the injuries on the person of the deceased Darayappa. P.W.No.6 Dr. Mahadeo Salgar had also examined P.W.No.3 Shalini and issued the certificate in respect of the injuries suffered by her. P.W.No.8 was the Investigating Officer. P.W.No.1 and P.W.No.2 were the two panch witnesses were examined to prove the discoveries said to have been made at the behest of accused No.1 and 4. They were also witnesses to the recovery relating to the sticks from the house of accused No.2 and accused No.3. 5. From the suggestions to the eye witnesses and from their 313 statements, it appears that the accused Nos. 1,2 and 3 set up a case of private defence. Their case was that on the date of the incident it was the turn of accused No.1 Laxman and his father accused No.10 Sambhaji to take water from the well. Therefore, at 7.00a.m. accused No.1 Laxman had started the electric motor for pumping the water from the well. He started the motor and the water began flowing through the water channels. At that time deceased Darayappa had come near the water channel and he questioned Laxman as to what was to be done regarding his turn for :19: taking water. Deceased Darayappa had embraced accused No.1 Laxman and pushed him on the ground. He then sat on the chest of the Laxman and was strangulating him by pressing his throat. Laxman started shouting that he was dying. Accused No.2 Bira and accused No.3 Keru came there and tried to separate the two. At that time Darayappa lifted his spade and rushed towards the accused Nos. 1,2 and 3. He caused injuries to accused No.2 Bira and accused No.3 Keru. Accused No.1 Laxman left the spot. Later accused no.3 went to his house and then went to Jath Police Station for lodging a complaint against Darayappa. In so far as other accused are concerned their defence was of total denial. Considering the entire evidence led by the prosecution and the version of accused contained in 313 Statements, the Addl. Sessions Judge acquitted all the accused from all the charges against them. Being aggrieved by this Judgment and order, the State filed the present appeal. 6) The submissions on behalf of the State can be summarised as under : . That, in the Trial Court the prosecution led evidence of P.W.No.3 Shalini Shejul who was an injured :20: eye witness. That, the presence of Shalini at the scene of offence was natural as the spot of the offence was very near to Shejul vasti. That, the evidence of this eye witness was corroborated by the injuries found on her person as well as on the person of the deceased Darayappa. Her evidence was further corroborated by the discovery evidence relating to the discovery of two axes at the behest of the accused Nos. 1 and 4 respectively of which an axe discovered by accused No.1 was found to have human blood and the axe discovered by accused No.4 was found to have blood group A which was also the blood group of the deceased. It was contended that the evidence of P.W.No.3 Shalini was also corroborated by the finding of a blood stained stone at the spot of the offence. It was lastly corroborated by her own F.I.R. which was lodged on the date of the incident itself against the accused persons and described the overt acts committed by some of the accused. It was contended that the evidence of this witness was further corroborated by the finding of two blood stained sticks at the residence of accused No.2 and two blood stained sticks at the residence of the accused No.3. That, further corroboration to the testimony of this witness could be found from the fact that the blood of group A also belonging to the :21: deceased was found on the clothes of the accused Nos. 1,2 and 3. It was pointed out that the contradictions and omissions brought on record as regards this witness were of minor nature and that in any case the Trial Court ought to have separated the wheat from the chaff while appreciating the evidence of this witness and was in error in totally discarding the evidence of this witness. 7) On behalf of the defence, it was contended that the grounds for acquittal as given in the Judgment of the Trial Court were cogent and proper. That, in an appeal against an acquittal, if two views were possible then the view which would be in favour of the accused should be taken. It was contended that there was nothing perverse in the impugned Judgment and order. That, in so far as the right to private defence was concerned, there was sufficient evidence on record to prove the said defence beyond the preponderance of possibilities. That, the burden on the accused to prove that they had acted in self defence was lighter than the burden on the prosecution and the accused were not required to prove their defence beyond reasonable doubt. That a blood stained spade was found near the spot where the deceased had fallen. This spade was :22: shown to have blood group A on it. Accused No.3 Keru also had blood group A and had suffered an bleeding injury. It was nobody’s case that the deceased had been hit by the spade and therefore, the blood on the spade could only be of accused No.3. Reliance was placed on the fact that accused Nos. 1 to 3 had suffered injuries and that accused