1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1163 OF 2002 Santosh Bhau Humane, } Aged about 22 years, } Occupation – agriculturist, }... Appellant. Residing at Village – Umbhrai, }(Orig. Accused Tahasil – Shahapur, } No. 1) District – Thane. } V/s. The State of Maharashtra, } (A copy to be served on the }... Respondent. Govt. Pleader, High Court, Mumbai. } Mr. Daulat G. Khamkar i/b. A.R. Pitale for the Appellant. Ms. A.S. Pai, APP for the State. CORAM : SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI,J. RESERVED ON : 9TH JUNE 2009. PRONOUNCED ON : 9TH JULY 2009. ORAL JUDGMENT (PER DHARMADHIKARI,J.):- This is an Appeal by Original Accused No.1 in Sessions Case No.252 of 1997 on the file of Additional Sessions Judge, Kalyan. He has been convicted of offences punishable under Section 302 of Indian Penal Code and sentenced to 2 imprisonment for life so also fine of Rs.250/- by the Judgment and Order dated 22nd April 2002, delivered by Additional Sessions Judge, Kalyan. 2. The case of the prosecution is that in all five accused are the residents of Umbhrai, Tahasil, Taluka – Shahapur, District Thane. They have Agricultural lands. The deceased Pandharinath Janardan Humane so also his family members are the neighbours of the accused. On 11th August 1997, when the deceased, his sister Gulabbai and other family members were in the house at about 7.30 p.m., the Appellant (A-1) stood opposite the house of the deceased and started abusing the family members. The deceased came out of the house and enquired with the Appellant as to why he was abusing them. It is alleged that the Appellant uttered obscene words. He complained that cattle of Pandharinath – deceased damaged the paddy crops of the accused. Thereupon, the deceased came near the Appellant and his sister Gulabbai also followed him. There were some exchange of words between the deceased and the Appellant. However, it is alleged that the Appellant suddenly removed a knife from his pocket and gave two blows of the same on the abdomen 3 of the deceased. Pandharinath sustained bleeding injuries. His intestine came out of the abdomen. The deceased collapsed. Apprehending that more blows would follow, the sister of the deceased laid herself on the injured deceased. The family members of both the deceased and the accused Nos. 2 to 5 came at the place of the incident. It is alleged that other accused were armed with sticks. The neighbouring public had also gathered. However, other accused assaulted father, brother and uncle of the deceased with sticks. The neighbours intervened and supported the accused. The deceased, who was then injured was taken to Kinhavali Police Station, Tahasil, Taluka – Shahapur. At the Police Station the sister – informant Gulabbai lodged F.I.R. against Accused Nos. 1 to 4. Police registered Crime No. I - 46/1997 against Accused Nos.1 to 4 for the offence punishable under Sections 302, 323, 504 read with Section 34 of the I.P.C. The crime was registered at about 21.15 hours. The investigation commenced. 3. It appears that before the crime was registered, the Police Station Officer, considering urgency of medical treatment to the deceased, referred him to the Primary Health Centre, 4 Kinhavali. Assistant Sub-Inspector Shinde was sent to Hospital to record statement of the deceased but he was not fit to give any statement. The Doctor at the Primary Health Centre, Kinhavali advised that the deceased should be shifted to Rural Hospital, Shahapur. However, relatives of the deceased took him to Thane Civil Hospital, Thane. He was declared dead by the Doctor and his dead body was brought to the Rural Hospital, Shahapur. 4. The prosecution case is that the Investigating Officer went to the village and started investigation. Two Panchas prepared panchnama at the place of the crime. The place was identified and shown by the sister Gulabbai. The Investigating Officer recorded statements of the family members. After the dead body was brought to the Rural Hospital, inquest panchnama of the same was carried out. The body was referred to the Medical Officer for post-mortem. The I.O. also submitted the report to the Medical Officer requesting him to obtain blood sample. The blood sample was collected so also the garments of the deceased. The same were seized under a panchnama. Thereafter, further statements were recorded. Later on, Accused Nos. 1 to 3 5 were traced and after arrest, they were brought to Kinhavali Police Station. During the investigation and from the statement of the witness, the I.O. learnt that Accused No.5 was also involved and therefore, Accused No.5’s name came to be added. The accused were charged with offences punishable under Section 302, 147 to 149 of I.P.C. It is stated that the Appellant was interrogated after police custody remand and he disclosed that he had hidden a knife, sticks and his garments. Two panchas were summoned and the I.O. recorded the memorandum of the statement of the Appellant to the effect that he had hidden a knife in the house of his uncle Gopal, sticks were hidden behind the house of the uncle. The garments were in the house of the accused – Appellant himself. The accused – Appellant led police and the panchas to his house and that of his uncle and recovered the above. The I.O. recorded statement of witnesses and thereafter, sent the seized property to Chemical Analysis along with requisition. The post-mortem report was also received in the meanwhile. In these circumstances, upon completion of investigation and arrest of other accused, the charge-sheet was failed in the Court of J.M.F.C., Shahapur, for 6 offences punishable under Section 147 to 149, 302, 323 and 504 of I.P.C. Since the offence punishable under Section 302 of I.P.C. is exclusively triable by the Court of Sessions, the case was committed in accordance with law. 5. The charge framed vide Exhibit 5 read thus :- “ I, J.N. Shanbhag, Additional Sessions Judge, Kalyan do hereby charge you : 1. Santosh Bhau Humane, 2. Waman Bhau Humane, 3. Gulab Bhau Humane, 4. Krushna Bhau Humane, 5. Shivaji Babu Humane All R/at. Umrai, Tal. Ulhasnagar, Dist. Thane as follows :- That, you the accused named above, on 11.08.1997 at about 7.30 p.m. near the house of the complainant, on the Kachha Road, Umrai, Taluka Shahpur, within the jurisdiction of Kinhavali Police Station were the members of an unlawful assembly and, in prosecution of the common object of such assembly viz. to commit murder of Pandharinath Janardan Humane and to assault prosecution witnesses namely Ashok Humane, Govind Humane and Janardan Humane committed the offence punishable U/Sec. 147 of the Indian Penal Code and within my cognizance. 7 SECONDLY :- That you the accused named above, on the aforesaid date, time and place in the course of the same transaction, were a member of an unlawful assembly, and in prosecution of the common object of such assembly, committed the offence of rioting and at that time you accused No.1 namely Santosh Humane armed with knife and others armed with sticks, and thereby committed an offence punishable U/Sec. 148 of the Indian Penal Code and within my cognizance. THIRDLY :- That you the accused named above, on the aforesaid date, time and place, and in the course of the same transaction, were the members of an unlawful assembly and, in prosecution of the common object of such assembly viz. to commit the murder of Pandharinath Janardan Humane, committed murder of Pandharinath Janardan Humane by you accused No.1 namely Santosh Bhau Humane and assaulting the deceased by means of knife on the vital parts of the body i.e stomach and voluntarily caused hurt to the prosecution witnesses by means of sticks which offence you knew to be likely to be committed in prosecution of the 8 common object of the said assembly and you are thereby under Section 149 of I.P.C., guilty of causing the said offence punishable under Section 302, 323 of the Indian Penal Code and within my cognizance. IN THE ALTERNATIVE :- That, you the accused named above on the aforesaid date, time and place in furtherance of your common intention, and in the course of the same transaction did commit murder, by intentionally or knowingly causing the death of Pandharinath Janardan Humane by assaulting him with knife and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within my cognizance. IN THE ALTERNATIVE That, you the accused named above, on the aforesaid date, time and place, in furtherance of your common intention and in the course of the same transaction, voluntarily caused hurt to the prosecution witnesses namely Ashok Humane, Govind Humane and Janardan Humane and thereby committed any offence punishable under Section 323 read with Section 34 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried by me on the said charges.” 9 6. After the charges were read over and explained, the accused pleaded not guilty and claimed to be tried. However, in response to the notice under Section 294 of Cr. P.C. (Exhibit 50), the defence admitted inquest panchnama (Exhibit 51), the arrest panchnama and panchnama of seizure (Exhibit 52). The prosecution thereupon led evidence and examined as many as 10 witnesses. The accused did not lead any evidence. Their statements under Section 313 of Cr.P.C. were recorded. 7. The learned Additional Sessions Judge to whom the case was made over, heard the Advocates appearing for the prosecution and the defence and delivered his Judgment to the above referred effect. 8. The learned Additional Sessions Judge concluded that the prosecution has proved that the deceased met with homicidal death. In so far as the point that whether the prosecution proved that all accused caused homicidal death of the deceased, the Additional Sessions Judge concluded that it is the Appellant – Accused who caused the same. The 10 assault/attack by the other accused on the prosecution witnesses was not proved. It is also not proved that the other accused members were of the unlawful assembly. The end result of all this is that other accused came to be acquitted and the Appellant alone is convicted and sentenced as above. It is this Judgment and Order which is challenged in this Appeal. 9. Mr. Khamkar, learned Counsel appearing for the Appellant contended that the Appellant alongwith four other persons was charged with the offences punishable under Section 147 to 149 read with Section 302 read with Section 34 of I.P.C. and under Section 323 r/w. Section 34 of I.P.C. However, the other accused have been acquitted and the Appellant alone is convicted under Section 302 of I.P.C. It is submitted that the Appellant alone cannot be convicted under Section 302 of I.P.C. considering the charge framed. Since no specific charge has been framed under Section 302 of I.P.C. against the Appellant, his conviction and sentence is wholly vitiated. The Appellant – Accused was a part of a alleged unlawful assembly who had gathered at the site with a common intention of allegedly causing death of the deceased. There was no charge attributing any individual act on the 11 Appellant regarding the death of the deceased. In the absence of a specific charge to this effect, the conviction of the Appellant under Section 302 of I.P.C. was impermissible. The Judgment and Order deserves to be quashed and set aside on this ground alone. Mr. Khamkar places reliance upon the following decisions in support of the above contentions :- 1. 1993 AIR SCW 1014 (Subran Alias Subramanian & Ors. V/s. State of Kerala). 2. AIR 1963 Supreme Court 1413 (V 50 C 205) (Krishna Govind Patil V/s. State of Maharashtra). 10. His second contention is that assuming without admitting that the Appellant could have been so convicted and sentenced, yet, apart from the documents which have been admitted by the defence, nothing else has been proved. He submits that to prove panchnama of recovery of clothes and weapon of assault (Exhibits 74 and 75), the prosecution examined the panch witnesses PW-7 and PW-8. However, they turned hostile. They have not supported the prosecution. The prosecution seeks to prove the panchnama and Exhibit 70 through the Investigating Officer (I.O.) PW-9. However, there is no corroboration to the evidence of the I.O. 12 by any independent witness. In these circumstances, the version of I.O. cannot be relied upon. He submits that though request was made to sent blood samples for Chemical Analysis, blood group of the Appellant is not determined. 11. His third contention is that there is delay in lodging the F.I.R. and there is no explanation for the same. It is next contended that the prosecution has examined PW-1, sister of the deceased, PW-3, a neighbour and PW-5 the uncle of the deceased are alleged eye witnesses to the incident. However, the version of these three witnesses is not consistent and reliable at all. At one place in her version, the sister says that the Appellant gave a blow to the deceased but at the same time she states that she does not know how many blows were given by the Appellant. The version of PW-5 is totally different than that of PW-1 and PW-2. He states that Accused No.5 gave a stick blow on the back of PW-5 and at that time the deceased intervened to protect him. However, the Appellant gave a knife blow on his abdomen. Moreover, the version of PW-5 at para 2 is contradictory regarding presence of PW-1. Further, PW-1 made false statement that the Doctor advised 13 them to take the deceased to Thane. Thus, these are the versions of interested persons and even if they are assumed to be eye witnesses, yet, their evidence should be cautiously examined. The prosecution could not produce any independent version and relied only on these interested witnesses. Therefore, when there is in-consistency and contradiction in their version as far as the material particulars and details are concerned, then, the Appellant was entitled to benefit of doubt and the learned Judge has seriously erred in convicting and sentencing him. He has high-lighted that it was the prosecution case that a heated exchange took place with regard to damage of paddy crops and use of abusive language. If the quarrel was followed by assault and when PW-1 admits that there was no previous rivalry or enemity, then, this is an incident in the heat of the moment. The tempers ran high and therefore, the offence will not be punishable under Section 302 but falls within the purview of Section 304 par II of I.P.C. All the more, when the relatives of the deceased were negligent in not providing early medical treatment to him. He was taken from Shahapur to Thane although he could have been treated at Shahapur. Similarly, 14 PW-4 Medical Officer does not state that the injuries caused to him were sufficient to cause death in the ordinary course of nature. The injuries may be grievous but they were not on vital part of the body. Therefore, this is not a case where Section 302 of the I.P.C. was attracted. 12. In support of these contentions, reliance is placed upon the following decisions :- 1. 1994 Cri. L.J. 58 (Ram Jattan & Ors. V/s. State of Uttar Pradesh). 2. AIR 2000 SC 1374 Camilo Vaz V/s. State of Goa. 13. On the other hand, Ms. Pai, learned Additional Public Prosecutor supported the Judgment and contended that there is no bar in law in convicting and sentencing the Appellant if he was solely responsible for the assault. He had used a knife in assaulting the deceased. The knife was recovered at his instance. There is no prohibition in law in convicting and sentencing the Appellant for his role and act in assaulting the deceased. Merely because he was charged with offences punishable under Section 147 to 149 and Section 34 of I.P.C. 15 alongwith Section 302 does not mean that his individual conviction and sentence is in any way vitiated. That would be allowing him to go free although a specific role has been attributed to him. It is not the law that an assault by an individual in the company of others cannot result in his conviction and sentence, even if the charge could not be proved against other. The acquittal of others is immaterial. Such an approach would mean that persons responsible for committing serious crimes and more particularly punishable under Section 302 of I.P.C. cannot be punished for acts committed individually. That apart, the only complaint of the Accused is that though there is no such prohibition in law but the Appellant could not have been convicted and sentenced under Section 302 of I.P.C. in the absence of a specific charge to that effect. She submits that omission to frame a charge or a defect in the charges is by itself not decisive. Now, Section 464 and 465 of the Cr.P.C. mandate that the accused must demonstrate prejudice by such defect. There must be failure of justice or else such omissions are not fatal. Therefore, there is no substance in the contentions of Mr. Khamkar. 16 14. In support of her above contention, Ms. Pai relied upon the following decision :- 1. AIR 1956 SC 116 (V. 43, C. 28) Willie (William) Slaney V/s. State of Madhya Pradesh. 15. She submits that as far as merits are concerned, the prosecution witnesses have proved the charges beyond reasonable doubt. There is absolutely no inconsistency in the versions of PW-1, PW-4 and PW-5. They may be relations of the deceased but they are eye witnesses to the crime. All the more, in the absence of any previous quarrel or enemity, they have no reason to falsely implicate the Appellant. They have honestly and truthfully narrated the incident. There may be some minor contradictions or omissions here and there but taken as a whole, their version is reliable and trustworthy. That apart, the recovery is at the instance of the accused – Appellant. The clothes of the Appellant were recovered at his instance. There is nobody else other than the Appellant carrying a knife. The manner in which the Appellant attacked the deceased and gave blows on the vital part of the body which are proved by medical evidence, then, the panchas 17 turning hostile is of no consequence. The Medical evidence must be seen as a whole and merely because it is not specifically stated that the injuries are sufficient to cause death in the ordinary course of nature, does not mean that the medical evidence must be brushed aside and discarded. Therefore, the learned Additional Sessions Judge was right in his conclusion and the Judgment under Appeal requires no interference. Consequently, she submits that the Appeal be dismissed. 16. With the assistance of the learned Advocates appearing for parties, we have perused the record. We have carefully considered the rival contentions. We have also perused the relevant statutory provisions and the decisions brought to our notice. For appreciating the first contention of Mr. Khamkar, we have carefully perused the charges. From a reading to the same we have no doubt in our mind that the Appellant is not prejudiced at all. The Appellant was aware that there is a specific role attributed to him by the prosecution. The charges spell out that role. The charges are framed with sufficient clarity and set out the allegations that 18 the accused have to meet. Therefore, we do not find any merit in the contentions of Mr. Khamkar that the Appellant was prejudiced by a specific charge regarding his individual role, not being framed. 17. Assuming for the sake of arguments that the charges as framed do not indicate that the Appellant individually is charged under Section 302 of I.P.C., yet, there is no failure of justice occasioned thereby. In the absence of serious prejudice and consequent failure of justice, mere omission to frame a specific charge cannot be said to be fatal. Further, it is not the law that for collective acts, individuals cannot be singled out and convicted so also sentenced. 18. The reliance in this behalf by Ms. Pai on a decision reported in AIR 1956 S.C. 116 (Willie (William) Slaney V/s. State of Madhya Pradesh) is accurate. The following observations of the Hon’ble Supreme Court are relevant for our purpose Viz. :- “(36). Sections 222 to 224 deal with the form of a 19 charge and explain what a charge should contain. Section 225 deals with the effect of errors relating to a charge. Sections 233 to 240 deal with the joinder of charges. Sections 535 and 537 are in the Chapter that deals with irregularities generally and these two sections deal specifically with the charge and make it clear that an omission to frame a charge as well as irregularities, errors and omission in a charge are all irregularities that do not vitiate or invalidate a conviction unless there is prejudice. 37. But, apart from that, if we examine the learned Counsel’s contention more closely the fallacy in his argument becomes clear. Sections 237 and 238 deal with cases in which there is a charge to start with and then they go on to say that in certain cases the trial can proceed beyond the matter actually charged and a conviction for an offence disclosed in the evidence in that type of case will be good despite the absence of a charge in respect of it. But what are those cases ? Only those in which the additional charge or charges could 20 have been framed from the start; and that is controlled by Sections 234, 235 and 239 which set out the rules about joinder of charges and persons. 38. It is evident that if charges A and B cannot be tried together because of the prohibition in Section 233 read with Sections 234, 235 and 239, then no conviction could be sustained on either A or B, and if that is the case when specific charges are drawn up it is all the more so when though there is a charge in respect of A there is none in respect of B, for clearly you cannot do indirectly that which you are prohibited from doing directly. (57). We now turn to the question of fact: is there material in this case to justify a finding of prejudice ? That will turn largely on the differences between Section 302 of the Indian Penal Code and Section 302 read with Section 34 of the Indian Penal Code and on the measure of criminal liability to which the Appellant would be exposed in those two cases; and here again, the matter 21 must be viewed broadly and not in any technical or pettifogging way, (58) Now what is an accused person entitled to know from the charge and in what way does the charge in this case fall short of that ? All he is entitled to get from the charge is -- (1) the offence with which he is charged, Section 221(1), Criminal Procedure Code, (2) the law and section of the law against which the offence is said to have been committed, Section 221(4), (3) particulars of the time, Section 222(1) and (4) of the place, Section 222(1), and (5) of the person against whom the offence is said to have been committed, Section 222(1), and (6) when the nature of the case is such that those particulars do not give him sufficient notice of the matter with which he is charged, such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose, Section 223. He is not entitled to any further information in the 22 charge: see Illustration (e) to Section 223 of the Code: “ A is accused of the murder of B at a given time and place. The charge need not state the manner in