1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 353 OF 2007 Pandurang s/o Ganpati Bongane, Age 55 years, Occu.Agriculture, R/o Umra, Taluka Aundha (Nagnath), District Hingoli .. APPELLANT VERSUS The State of Maharashtra .. RESPONDENT Smt.S.S.Jadhav, Advocate for appellant Shri V.D.Godbharle, Assistant Public Prosecutor for respondent- State CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ DATE : 7th December 2009 ORAL JUDGMENT [ PER P.V. HARDAS , J ] 1. The appellant/original accused No.1 who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/- with a default stipulation of undergoing further rigorous imprisonment for one year, by the Additional Sessions Judge, Basmath, by Judgment dated 27.7.2007, in Sessions Case No.17/2005, by this appeal questions the correctness of his conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.10 Sahebrao Bhakare was attached to Kurunda Police Station as a P.S.I. On 11.2.2005, at about 1.00 a.m. he received information that there was a quarrel at village Umra and the injured had been referred to the Nanded Hospital. P.W.10 P.S.I. Bhakare, therefore, sent Head Constable Pawar to Nanded for recording the statement of the injured. He also received information from the Aundha Police Station that accused No.1 Pandurang had been admitted in the Parbhani Hospital and accordingly, Head Constable Umrekar was deputed to record his statement. At about 4.00 a.m., he received information from Head Constable Pawar that injured Vitthal had succumbed to his injuries. P.W.10 Bhakare, therefore, proceeded to the scene of the offence in the morning and drew the scene of the offence panchnama at Exh.73 in the presence of P.W.5 Sakharam. From the scene of the offence he seized four sticks, ordinary mud and blood stained mud under the said panchnama. He thereafter recorded the statement of P.W.2 Govind. Meanwhile, A.S.I. Kshirsagar had recorded the statement of P.W.1 Dwarkabai at Exh.62 and had registered the offence vide Crime No.14/2007 under Section 302, 147, 148, 149, 447 and 323 of the Indian Penal Code at 7.30 p.m. The investigation thereof came to be 3 entrusted to P.W.10 P.S.I. Bhakare. Statements of witnesses came to be recorded and the accused came to be arrested under arrest panchnamas at Exhs.84 to 90. Clothes of accused No.1 Pandurang came to be seized under panchnama at Exh.70 in the presence of panch witnesses. On 14.2.2005 during custodial interrogation, accused No.1/appellant expressed his willingness to point out the axe where it had been hidden by him. Accordingly, a memorandum came to be drawn in the presence of P.W.6 Durgadas at Exh.75. The accused led the Police and the panch to his house and broke open the lock and produced one axe which had been concealed in a quilt. The said axe came to be seized in the presence of panchas under the seizure panchnama at Exh.75. The said axe is Article 13. On 15.2.2005 the seized property came to be referred to the Chemical Analyzer for examination along with the requisition at Exh.91. The Chemical Analyzer’s reports are at Exhs.92 to 94. As per the Chemical Analyzer’s report at Exh.92 no blood is detected on the axe and as per the Chemical Analyzer’s report at Exh.93 the blood group of the appellant was determined as “B” while as per the report at Exh. 94, the blood group of deceased Vitthal was determined as “A”. 3. The post mortem on the dead body of deceased Vitthal had been performed by P.W.11 Dr.Godbole who had noticed five external injuries. He had noticed a sutured wound on 4 scalp-left parietal area – oblique with 5 stitches with length 4.5 cm. On internal examination he had noticed comminuted and depressed fracture of vault, involving left parietal bone and extending to frontal mid-line and temporal bone. He had noticed huge extradural hematoma over left side frontal temporal pointal/occipital bone with thin layer of subdural haemorrhage all over brain. He had, therefore, opined that cause of death was on account of head injury. The post mortem report at Exh.97. The injured eye witnesses had been examined by P.W.12 Dr.Kharate and the injury certificate of P.W.2 Govind is at Exh.100 and P.W.1 is at Exh.101 while injury certificate of P.W.3 Sumanbai is at Exh. 102. On completion of the investigation a charge-sheet against the appellant and the other accused came to be filed. 4. On committal of the case to Court of Sessions, trial Court vide Exh.31 framed a charge against the accused for offence punishable under Section 147, 148, 149, 447/149, 323/149, 504/149, 506/149 and 302 read with 149 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined twelve witnesses while the accused examined Dr.Rathod as a defence witness to prove the injury certificate of the appellant at Exh.109 and the injury certificate of the acquitted accused at Exh.110. The trial Court upon appreciation of the evidence convicted and 5 sentenced the appellant as aforestated while acquitting the other accused. Before we refer to the submissions advanced before us by Smt.S.S.Jadhav, learned Counsel for the appellant and the learned Assistant Public Prosecutor for State, it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.1 Dwarkabai w/o deceased Vitthal and the first informant states that she used to reside in her agricultural land at village Umra along with the other family members. The agricultural land of the accused No.1 is near her land and there was dispute between them on account of land and they were not on either visiting terms or on talking terms with each other. She states that on the day of incident at about 8.00 to 8.30 p.m. her husband Vitthal, her in-laws, P.W.3 Sumanbai, sister of Vitthal and her son P.W.2 Govind were present. At that time all the accused came to her house with a tractor. Her husband Vitthal and her father-in-law went towards the tractor. The accused No.1 was armed with an axe while the other accused were armed with sticks. Vitthal, her father-in-law requested the accused not to plough the field as the Tahsildar was going to visit on the next day. Thereupon accused No.1 Pandurang dealt an axe blow on the head of Vitthal and accused Nos.2 to 7 assaulted her and P.W. 6 3 Sumanbai and P.W.2 Govind by sticks. Accused No.2 Jagan had tossed her son P.W.2 Govind and thereafter accused No.3 Uttam had assaulted him by stick. She further states that she and the others started raising cries for help and thereafter the accused fled from the scene of the offence in a tractor. She states that the neighbours had arrived at the scene and the neighbours then brought her husband and the other injured to the hospital. Her husband Vitthal was referred to the hospital at Nanded where he succumbed to his injuries. Thereafter she lodged the report at Exh.62. 6. In cross-examination she has stated that she does not know if her husband was married earlier to one Bahinabai. She has admitted that the said Bahinabai had filed maintenance proceedings against deceased Vitthal in the Court of the Magistrate at Basmath and in lieu of maintenance amount Vitthal had given some portion of the land from Gut No.116 to Bahinabai. She has denied the suggestion that her mother-in-law had mutated the land in the name of Bahinabai. She has also denied the suggestion that she along with her deceased husband had started obstructing the cultivation of the land by Bahinabai. She has denied the suggestion that Bahinabai had sold the said land to accused No.5 Ratnamalabai. She has, however, admitted as true that in respect of the said land there was a dispute between 7 them and accused No.5 had filed a civil suit against her for injunction which was pending. She has denied the suggestion that an injunction was granted in favour of accused No.5. She has admitted as true that her father-in-law owns 3 and ½ acres of land from Gut No.115. She has also admitted that the land of one Prakash Panchange is on the Southern side of Gut No.115 which is in Gut No.115 itself. She has admitted that the land of her mother-in-law is situated on the Western side of Gut No.115 which is Gut No.116. She has admitted that from out of land at Gut No.116, some portion is given to Bahinabai. She has admitted as true that the land of accused No.1 is on the Eastern side of Gut No.115 which is situated in that Gut itself where the accused has constructed his farm house. She states that when the accused had come to her field she was present in her house. The tractor had come from the Eastern side. She states that she had seen the tractor when it had come to the field of her mother- in-law near the farm house situated therein. She has denied the suggestion that there was an embankment between the land of accused No.5 and the land of her mother-in-law in Gut No.116. She has also denied the suggestion that the tractor had come to the land which was owned by accused No.5. She has admitted that she had no talk with accused No.1. However, a short altercation ensued between the accused and the deceased. She has stated that neither the deceased nor the witnesses were 8 armed with any weapons. She has stated that while giving the axe blow to the deceased the appellant was in front of the deceased and the axe blow was given by holding the axe in both hands. After deceased had fallen on the ground the appellant had dealt two more axe blows. She states after receiving the blow the deceased fell down facing the ground. She has admitted that she had sustained bleeding injuries and her clothes were stained with blood. She has stated that she did not notice if accused No.1 Pandurang had sustained any injury in the incident. She was also unable to state if accused No.3 Uttam had sustained any injury. She has categorically stated that none had assaulted accused Nos. 1 and 3. Omission has been duly proved that she had not stated that there was illumination of the torch light as well as the head light of the tractor. Omission has been duly proved that she had not stated that her sister-in-law P.W.3 Sumanbai was also present and that her father-in-law went towards the tractor. She had not stated that the accused No.1 was armed with an axe while the other accused were armed with sticks. Perusal of the first information report at Exh.62 shows that she had stated about accused being armed with axe and sticks. The other omission pertains to the assault of accused 2 to 7 and this witness receiving injury by a stick. She has also admitted that the land of accused No.3 had not been ploughed and the accused had come for ploughing the land of her mother-in-law. 9 7. P.W.2 Govind, a child witness has also deposed about the incident in similar manner. In cross-examination it has been elicited from this witness that the incident occurred at a distance of about 15 feet from his house. He has further admitted that after arrival of the accused there was some altercation between accused No.1 Pandurang and his father. He states that his father had informed the accused not to plough the land as the Advocate was arriving tomorrow. In cross-examination it has been elicited that deceased Vitthal was not armed with any weapon. It has also been elicited that none of the other family members were armed with any weapon. It has also been elicited in the cross- examination that the injury by an axe was caused from the sharp side. He has stated that accused No.1 had not received any injury as no one had assaulted him. Minor omission has been proved that he had not stated that he was residing in the farm house with the other family members and that the accused had come armed with weapons. He has also admitted in cross- examination that his grand parents had told him as to how he should give his evidence. He has, however, denied the suggestion that he was deposing as per the instructions of his grand parents. 8. Prosecution has also examined P.W.3 Sumanbai who states that her mother (mother-in-law of P.W.1 Dwarkabai) had 10 inherited 5 acres and 10 gunthas of land and from that land she had given 3 acres land to Bahinabai for her maintenance. She too has deposed consistently about the assault on the prosecution witnesses including deceased Vitthal. In cross-examination she has denied the suggestion that Bahinabai had sold the land to accused No.5 Ratnamalabai. She was confronted from portion marked “B” from her statement. In cross-examination it is elicited that the tractor had arrived in the field of her father. She has stated that as her father and deceased Vitthal had gone towards the tractor, the ladies had also followed them. She has admitted that there was some talk between the appellant and her deceased brother Vitthal. She has admitted that accused No.1 dealt only one axe blow on the head of her deceased brother when the appellant was at a distance of 3 to 4 feet from deceased. She has stated that the tractor was in the field of Bahinabai and her farm house and the field in which the tractor had come are near each other. 9. The scene of the offence panchnama at Exh.73 and the map makes it clear that the field which is given to Bahinabai is towards the left of the field where the assault had taken place. The agricultural land of Prakash Panchange is a different field which is demarcated and shown in the map. The agricultural field where the incident had occurred is Survey No.115 which 11 according to the witnesses belong to deceased and which fact has not been controverted or demolished in the cross-examination. 10. The accused have examined D.W.1 Dr.Rathod who states that accused No.1/appellant was examined by him on 10.2.2005 and had noticed the following injuries. 1. Contused lacerated wound 6 x 3 ½ cms., caused on left scapular region on back side, the nature of injury was simple caused by hard and blunt object and within six hours. 2. Contusion 6 x 2 cms caused on right back side. The nature of injury was simple caused by hard and blunt object and within six hours. According to D.W.1 he had issued the certificate at Exh.109 and injury No.1 could be caused by axe while injury No.2 could be caused by stick. In respect of accused Uttam, he had noticed the following injuries : 1. Contusion 3 x 3 cms caused on right arm proximal to wrist joint 2. Contusion 4 x 3 cms caused on right back side of chest 12 According to D.W.1 Dr.Rathod the injuries were simple caused by hard and blunt object and within six hours. 11. On the basis of the aforesaid evidence it is urged by Smt.Jadhav, learned Counsel for the appellant that the deceased party were aggressors and they had injured the appellant and the appellant, therefore, had exercised his right of private defence. It is also urged before us that despite the order of injunction the deceased had attempted to obstruct the ploughing of the agricultural land and, therefore, the accused was within his right to resist the obstruction. The learned Assistant Public Prosecutor urged for dismissal of the appeal. 12. The appellant, according to us has utterly failed to establish that he had received the injuries during the incident. In his statement under Section 313, Cr.P.C., the appellant does not claim to have received any injury. In fact, his defence is of total denial. The appellant had not lodged any report with the Police to indicate that he had sustained any injury. No witnesses have been examined by the appellant to establish that he had sustained any injury. Thus, there is no evidence that the appellant had sustained any injury in the assault or oblique incident. All that D.W.1 Dr.Rathod establishes that the appellant had injuries when he was examined. Merely because the 13 appellant had two injuries it would not lead to the irresistible conclusion that the appellant had sustained the injuries in the incident. The Medical Officer has opined that the injuries could have been caused within six hours and, therefore, it was for the appellant to have established that he had sustained the injuries during the incident. Similarly, the evidence of the prosecution witnesses clearly establishes that the accused had come to their agricultural land with a tractor. In such circumstances, it cannot be urged that the deceased party had violated the injunction and had obstructed the accused from ploughing their field thus giving rise to the appellant for exercising his right of protecting his possession. There is a total paucity of evidence which would establish the plea of the accused. 13. It was next urged by Smt.Jadhav, learned Counsel for the appellant that the accused is alleged to have dealt only a single axe blow and, therefore, the accused at the most would be guilty of an offence punishable under Section 304 Part I. Learned Counsel for the appellant has relied on the judgment of the Division Bench of this Court in Suresh s/o Chaitya Konkani Vs. State of Maharashtra & Anr., 2009 ALL MR (Cri) 18. The reasons which impelled the Division Bench of this Court to which one of us (P.V.Hardas) was a member, to reduce the conviction from Section 302 to 304 Part I are to be found at paragraph 23 of 14 the said judgment which reads as under. “23. Evidence of P.W.3 – Janglya and P.W.11 – Parubai clearly shows that scuffle was going on between two groups. They were giving blows to each other. It is also admitted position that dispute over boundary bund was between P.W.2 – Tulshiram and sons of Punya and there was no dispute between appellant and Tulshiram. Evidence of P.W. 11 – Parubai shows that the yoke which was lying there was taken up by appellant Suresh and he gave blow with it on the head of Rupchand. Single blow was given. It appears that passions had risen high. It did not happen that the offender had taken any undue advantage or acted in cruel and unusual manner. There is nothing on record to show that it was the appellants side which had offered provocation or committed first assault. Considering the circumstances of the case, we are of the considered opinion that the present case falls under exception 4 of Section 300 of the I.P.C. Therefore, the offence committed will be under Section 304, Part-I of the I.P.C.” The aforesaid judgment, therefore, in our opinion is not applicable to the facts of the present case. 14. Similarly, reliance is placed on the judgment of Supreme Court in Pappu @ Hari Om Vs. State of Madhya Pradesh, 2009 ALL MR (Cri) 2181 (S.C.). In the said judgment 15 four persons including the deceased were playing cards near electric pole. The accused and the other co-accused requested them to join them and the deceased objected and a quarrel ensued. The appellant went away abusing the deceased and came back with a gun in his hand and fired gun shot which injured the right shoulder of deceased. The deceased died on the way. The Supreme Court, therefore, came to the conclusion that considering that the bullet had hit the shoulder of the deceased, the conviction would be one under Section 304, Part-II. In the present case the appellant had launched an unprovoked attack on deceased by trespassing in the land of deceased. The appellant had dealt a blow of axe on the head of deceased which has resulted in massive internal damage. In such circumstances, therefore, according to us the facts of the present case being different, the ratio laid down in Pappu @ Hari Om vs. State of Madhya Pradesh (supra) is inapplicable to the present case. 15. Even if the evidence of the child witness and the discovery memorandum of the axe is left out of consideration, there is strong and reliable evidence of P.W.1 Dwarkabai and P.W.3 Sumanbai in respect of the actual assault on deceased Vitthal by the appellant. The evidence of these witnesses is convincing, cogent and reliable and has been relied upon by the trial Court. We see no reasons for taking a view different from the 16 view taken by the trial Court. According to us the prosecution has established beyond reasonable doubt that the appellant had committed murder of deceased Vitthal. In that light of the matter, therefore, we see no merit in the present appeal. 16. Accordingly, Criminal Appeal No.353 of 2007 is dismissed confirming the conviction and sentence. ( A.V. NIRGUDE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal353.07)