drp {1} Cri. Appeal No.95/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.95 OF 2010 1. Bajirao s/o Devidas Surwase @ Walke APPELLANTS Age-35 years, Occ-Agri 2. Ramesh s/o Kisan Surwase @ Walke Age-40 years, Occ-Agri 3. Shivaji s/o Devidas Surwase @ Walke Age-45 years, Occ-Agri 4. Dinkar s/o Kisan Surwase @ Walke Age-40 years, Occ-Agri 5. Sheshrao s/o Kisan Surwase @ Walke Age-60 years, Occ-Agri All R/o Shedol, Tq-Nilanga, Dist-Latur VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for the appellants Mr. S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] RESERVED ON : 14 th June 2011 PRONOUNCED ON : 23 rd June 2011 drp {2} Cri. Appeal No.95/2010 JUDGMENT (PER A.V.POTDAR, J.) : 1. By this appeal, the appellants, who are convicted for the offence punishable u/s 143, 147, 148, 302 r/w 149, 323, 324 r/w 149 of the Indian Penal Code and sentenced to suffer RI for 6 months and to pay a fine of Rs.1000/- each in default to suffer SI for one month for the first offence, RI for one year and to pay a fine of Rs.2000/- each, in default to suffer SI for 2 months for second and third offence and imprisonment for life and to pay a fine of Rs. 5000/- each and in default to suffer SI for 6 months, for the fourth offence, awarded by Additional Sessions Judge, Nilanga, vide judgment and order dated 08.02.2010 rendered in Sessions Case No.13/2009, have challenged their conviction and sentence. 2. The prosecution case, as unfolded during the trial, may briefly be stated thus - a) PSI Dhondiba Gaikwad (PW-20), who was attached to Nilanga police station had received a message on phone on 24.10.2008 that one person was murdered at Shedol. After receipt of the said information he immediately rushed to the place of incident, after giving message to Police Head Constable at Pachpoli outpost. After arriving at the spot, he noticed that the dead body was lying there. He drew inquest Panchanama (Exhibit-44) and Spot Panchanama (Exhibit-43). The dead body was identified by drp {3} Cri. Appeal No.95/2010 the wife of the deceased Nirmala (PW-7) to be the dead body of her husband Vitthal. One stick-stained with blood (Article 3), one stone-stained with blood, blood mixed soil and plain soil were collected from the spot. The dead body was sent for Postmortem examination to Sub District Hospital, Nilanga. b) Dr.Sangita Suryawanshi (PW-4) performed postmortem on the dead body of Vitthal (deceased). She noticed following external injuries on the person of the deceased - 1. Echmosis of skin over frontal region CLW frontal region, size 4 to 5 cm x ½ cm x ½ cm. 2. CLW frontal temporal region, right side 5 to 6 cm x ½ cm x ½ cm 3. CLW right parietal region size 3 to 4 cm x ½ cm x ½ cm. On internal examination, she noticed following internal injuries. 1. extra dural haemotoma over temporal to frontal region to parietal region, size 5 to 6 x 5 cm. 2. sub dural haemotoma over right side frontal to parietal region, about 4 to 5 x 5 cm 3. sub dural haemotoma left side of parieto temporal region 2 to 3 cm x 3 cm. drp {4} Cri. Appeal No.95/2010 The Medical Officer opined that the cause of death was cardio respiratory arrest due to extra dural and sub dural haemotoma. Accordingly, Postmortem report (Exhibit-59) came to be issued, so also provisional death certificate (Exhibit-58) was issued. According to the medical officer, the injuries, found on the person of the deceased, are sufficient to cause death in ordinary course. It was further opined that the injuries were caused by hard and blunt object, like stick. c) Clothes on the person of the deceased were seized under Panchanama (Exhibit-51). Nirmala (PW-7) and Dnyaneshwar (PW-12), wife and son of the deceased, who were injured during the said assault, were referred for medical examination to sub district hospital, Nilanga. They were also examined by Dr.Sangita. During the examination of injured Dnyaneshwar, she found abrasion over left side at neck having size ½ x ¼ cm. According to the medical officer, the injury can be caused by hard and blunt object like stick. Accordingly, injury certificate (Exhibit-60) was issued. Dr.Sangita had also examined injured Nirmala and noticed contusion over right parietal region having size 3 x 3 cm and has opined that the injury can be possible by hard and blunt object. Accordingly, medical certificate (Exhibit-61) was issued. d) PW-20, PSI Gaikwad, had recorded statement of Nirmala (Exhibit-69), on the basis of which the offence at Crime No.136/2008 was registered against the accused persons. On the drp {5} Cri. Appeal No.95/2010 very day statements of injured Dnyaneshwar and some other witnesses were recorded. Thereafter all the accused came to be arrested vide arrest Panchanamas (Exhibit-102 to 114). e) On 26.10.2008, appellant No.1 Bajirao made disclosure statement (Exhibit-48) in presence of witnesses, which resulted in discovery of one stick (Article-7), which was seized vide Panchanama (Exhibit-49) on 30.10.2008. Thereafter, appellant No. 3, Shivaji made a disclosure statement (Exhibit-63), which resulted into recovery of one stick (Article-8), which came to be seized vide Panchanama (Exhibit-64). On the same day, appellant No.2, Ramesh made disclosure statement (Exhibit-77), which resulted in recovery of one stick (Article-10), which came to be seized vide Panchanama (Exhibit-78). Thereafter, on 04.11.2008 appellant No.5 Sheshrao made disclosure statement (Exhibit-96), which resulted in recovery of stick (Article-9), which came to be seized under Panchanama (Exhibit-97). f) The seized property was sent to CA on 28.11.2008. During the investigation blood sample of appellant No.1 Bajirao was obtained, which was also sent to Chemical Analyzer. Statements of certain witnesses came to be recorded during the investigation. After receipt of the report of Chemical Analyzer and on completion of the investigation charge sheet was filed against all the accused in the Court of JMFC, Nilanga. drp {6} Cri. Appeal No.95/2010 g) On being committal of the case to the Court of Sessions, Additional Sessions Judge, Nilanga framed charge (Exhibit-4) against the accused persons for the offence punishable u/s 143, 147, 148, 302 r/w 149, 324 r/w 149, 323 r/w 149, 504 r/w 149 and u/s 120 (B) of the Indian Penal Code. All the accused pleaded not guilty to the charge and claimed to be tried. During the trial, to substantiate the charges levelled against the accused, prosecution had examined as many as 20 witnesses. Defence of the accused was of total denial and their false implication in the offence due to land dispute and political rivalry. On appreciation of the evidence, trial court convicted original accused No.1 and 3 to 6 (Present appellants) as stated above, however, acquitted the other accused of all the charges. Admittedly, neither State nor the complainant has preferred any appeal challenging the acquittal of other accused. 3. Before we embark upon the rival submissions advanced before us by learned counsel for the appellants and learned APP for respondent State, it may be useful to advert to the material witnesses examined before the trial Court. 4. The judgment of conviction, recorded by the trial court, is based on the ocular evidence of PW-7 Nirmala-wife of deceased Vitthal and an injured eye witness, evidence of PW-10 Nanda, daughter of the deceased and the evidence of PW-12 Dnyaneshwar- son of the deceased and an injured eye witness coupled with the drp {7} Cri. Appeal No.95/2010 medical evidence of Dr.Sangita, who had performed postmortem on the dead body and had also examined both the injured so also the expert evidence i.e. report of the Chemical Analyzer. 5. PW-12, Dnyaneshwar, states in his evidence that the appellants are his cousin brothers and the female accused are their wives. His family as well as all the accused are residents of the locality known as Chirka. His father was having land in Chirka as well as Musalman Wadi localities. All the accused have lands adjoining to their lands. There was dispute between his family and the accused on account of agricultural land. In respect of the incident dated 24.10.2008, he has stated that on that day at about 10.30 a.m., he was playing cricket on the road of Musalmanwadi along with his friends and his sister PW-10 Nanda was watching their game. At that time appellant No.1 Bajirao and his wife accused Nirmala came there and started abusing him. Bajirao had questioned him as “rq ok?k vkgsl dk\ rq ek÷;k ck;dksl f’kohxkG dk dsykl\” (Are you a tiger? why you have abused my wife?). Thereafter, appellant No.1 Bajirao caught hold of collar of his shirt and started beating him. His sister, PW-10 Nanda, who was watching them, ran towards their house to inform about the assault to their parents. He somehow escaped from the clutches of Appellant No.1 Bajirao and ran towards his house. Appellant Bajirao followed him and while following, both appellant Bajirao and accused Nirmala were shouting loudly. When he reached near one Babul tree, in front of his house, brothers of the appellant drp {8} Cri. Appeal No.95/2010 came holding sticks in their hands. As appellant Bajirao gave a blow of a stick on his neck, he sustained injury on his neck and felled down. His mother, PW-7 Nirmala also came there along with his father. All the female accused assaulted his mother PW-7 Nirmala by chappals. Appellant Bajirao assaulted his father with stick on his head, his father had sustained bleeding injury and had also felled down. Appellant Ramesh, Shivaji and Sheshrao also assaulted his father with sticks on his head. Appellant Dinkar assaulted his father with a stone. Thereafter, he went to the house of Ramrao Dhumal and informed him about the incident, who also rushed to the spot. Thereafter, he was referred by the police for medical treatment. He identified the stick (Article-7) used by appellant Bajirao for assaulting him and his father. In his cross examination, he has denied that he hit a stick on the head of appellant Bajirao and Bajirao had felled down due to sustaining injury. He has further stated that when he went to village Shedol, appellants and others ran away. According to him, the incident of assault was going on for about one hour. During the incident the accused were assaulting his father at one and the same time. Accused were assaulting with sticks on the head of his father and each of the accused gave two blows of stick on the head of his father. He has further stated that he tried to rescue his father, however, he had not sustained any injury while rescuing his father. 6. It transpired from the evidence of PW-10 Nanda, a child witness and daughter of the deceased, that at the time of the drp {9} Cri. Appeal No.95/2010 incident her brother was playing cricket along with his friends and she was watching their game. Thereafter, appellant Bajirao and his wife accused Nirmala came near Dnyaneshwar and appellant Bajirao had questioned Dnyaneshwar as to why he had abused his wife and then appellant Bajirao caught hold of the collar of Dnyaneshwar and started beating him. On seeing that she rushed to her house and informed her parents. Thereafter, her parents came out of the house and she followed them. Dnyaneshwar came towards them at that time the appellants and accused followed Dyaneshwar. All the male accused were holding sticks in their hands. Appellant Bajirao assaulted Dnyaneshwar with stick, on his neck. Appellants and other accused-Uttam and Subhash assaulted her father on his head with sticks. Accused Nirmala assaulted her mother with fists and kick blows. Her father had sustained bleeding injury on his head and had felled down. Her brother Dnyaneshwar had gone to the village to call her grandfather- Ramrao. She has stated in her cross examination that at the time of the incident, she was siting outside their house and the accused were assaulting her father with sticks on one and the same time. The assault was going on for about 15 minutes. Omissions are proved in her cross examination that the accused had chased Dnyaneshwar while he was running towards their house, that Dnyaneshwar was playing cricket along with his friends, that there was no stick in the hands of her father while the quarrel was going on and that appellant Bajirao had not sustained any injury on his head. drp {10} Cri. Appeal No.95/2010 7. It is in the evidence of PW-7 Nirmala-wife of deceased Vitthal, that they were having 10 acres of agricultural land at two different places. She, along with her husband, was cultivating their lands. All the accused are residents of Shedol. Appellants Bajirao and Shivaji are cousins of her husband and other accused were from their brotherhood. All, the accused as well as she and her husband are residents of Chirka locality. They are agriculturists and their lands are abutting to the land of the accused. There was dispute between her family and the accused on account of distribution of land. She has stated that the accused used to sow in their lands and used to assault her and her husband. She has stated that about 8 to 10 days prior to the incident in question, she was working in her field along with her husband at that time accused Nirmala had assaulted her. She had also lodged a complaint in respect of the said incident, with the police. In respect of the incident in question, she has stated that she and her husband were in their house and deceased Vitthal was taking meal, while she was serving him the meal and the time was around 10.00 to 11.00 a.m. Then, their daughter, PW-10 Nanda had informed that appellants Bajirao, Shivaji, Ramesh and Sheshrao and accused Uttam and Subhash were assaulting Dnyaneshwar and on hearing this she and her husband came out of the house and noticed that Dnyaneshwar had come near a water tap near their house and appellants Bajirao, Shivaji, Sheshrao and Ramesh were assaulting him. Her husband (deceased) tried to intervene, drp {11} Cri. Appeal No.95/2010 however appellants Bajirao and Shivaji assaulted him with sticks on his head. Appellants Sheshrao and Ramesh also assaulted her husband with sticks. Her husband had sustained bleeding injury on his head. Appellant Dinkar had assaulted her husband with stone. She was caught by accused Rohini and accused Nirmala and her son Dnyaneshwar was caught by accused Bharatbai and Bhagabai. Her mother in law-Prayagbai, was also caught by accused Lubabai and at that time appellant Bajirao assaulted her son Dnyaneshwar with stick and accused Nirmala assaulted her on head with stick. She had also sustained injury. According to her PW-1 Rajaram, PW-8 Ramrao and Dondiram were present there, who rescued them. About 11.00 am to 12.00 noon police came and prepared Panchanamas and recorded her complaint. Thereafter dead body of her husband was sent to Sub District Hospital, Nilanga. She and her son Dnyaneshwar were also brought in the hospital for treatment. Clothes of her husband were smeared with blood, which were seized by the police. Clothes on the person of appellant Bajirao were also stained with blood. She identified the clothes which were on the person of appellant Bajirao at the time of assault so also the stick used by appellant Bajirao during the assault. In cross examination, she has stated that her husband had sold one acre of land to appellant Shivaji prior to 15 years and appellant Shivaji was cultivating the said land. Witness Ramrao was mediator to the said transaction. The said land is adjoining to their land and there was dispute amongst them in respect of the land. She denied that she and her husband were trying to cultivate drp {12} Cri. Appeal No.95/2010 the land sold to appellant Shivaji and on that count there was dispute between them as they had harvested the soyabene crop from the said land. She has also denied that appellant Bajirao had been to their house to question Dnyaneshwar as to why Dnyaneshwar had abused his son and at that time Dnyaneshwar had assaulted appellant Bajirao with a stick. She further denied that appellant Bajirao had lodged a compliant against her husband, herself and Dnyaneshwar. Omissions are brought on record from the complaint that Nanda had told her that accused were assaulting Dnyaneshwar, as their names do not appear in the complaint. She has admitted that no dispute was pending either in civil or revenue court regarding the agricultural land, though there was dispute in respect of the agricultural land since last 15 years. She has further admitted that the houses and lands of the accused Subhash and Uttam are not adjoining to their lands and houses. She was unable to identify as to which particular stick was used by the particular appellant. She has further stated that though she was present at the scene of offence since beginning till end, yet she had not seen any bleeding injury on the head of appellant Bajirao. 8. Independent witnesses, examined by the prosecution i.e. Rajabai Dhumal, Vinod Dhumal, Dhondiram Dhumal, Amar Dhumal and Trimbak Dhumal, did not support the prosecution case. 9. Correctness of the conviction and sentence recorded by drp {13} Cri. Appeal No.95/2010 the trial court is to be considered in the light of the above discussed evidence of the three eye witnesses, including two injured witnesses. 10. We have heard learned counsel for the appellants and learned APP for respondent State. 11. Learned counsel for the appellants urged before us that the evidence of three eye witnesses about assault on the deceased requires to be considered in the light of the evidence of the medical expert, Dr.Sangita (PW-4). Our attention is drawn towards the internal and external injuries noticed on the person of the deceased. It is brought to our notice that on careful perusal of the injuries found on the person of the deceased, as reflected in the Postmortem report (Exhibit-59) and the oral evidence of Dr.Sangita, it is clear that no injury was noticed on the person of the deceased which is caused due to stone. Therefore, it is urged that evidence of PW-7 Nirmala, PW-10 Nanda and PW-12 Dnyaneshwar on the point that appellant Dinkar had inflicted injury to deceased Vitthal by stone, needs to be discarded. We are in agreement with this submission, as no injury was found on the person of the deceased, which was caused by stone. 12. Learned counsel for the appellants further urged that only two injuries were noticed on the head of the deceased. It is also urged that PW-7 Nirmala, PW-10 Nanda and PW-12 drp {14} Cri. Appeal No.95/2010 Dnyaneshwar have exaggerated the incident in their evidence. It is also urged that careful scrutiny of the evidence of these three witnesses would only establish that appellants Bajirao and Shivaji only gave stick blows on the head of the deceased. Evidence of the eye witnesses is silent on the point that appellants Ramesh and Sheshrao had also gave blows on the head of the deceased. In this light, it is urged that Vitthal (deceased) had sustained injuries on his head, even as per the evidence of these three witnesses, when he came to rescue Dnyaneshwar when appellant Bajirao was allegedly assaulting Dnyaneshwar and hence it cannot be inferred that there was unlawful assembly, armed with deadly weapons with common object to commit murder of Vitthal. It is further urged that once the prosecution has failed to establish that there was unlawful assembly armed with deadly weapons then the individual assailants have to be held responsible of their individual acts or overt acts. It is also urged that it has also not been established that which blow given by whom was fatal, which caused death of Vitthal. In view of this, it is urged that it has to be inferred that there was no intention of the appellants to commit murder though they may have knowledge about the result of the injuries inflicted by them. It is further urged that considering these aspects, the offence against the appellants needs to be reduced from the offence of murder, punishable u/s 302 of the Indian Penal Code to an offence punishable u/s 304 (part-1) or 304 (part-II) of the Indian Penal Code. drp {15} Cri. Appeal No.95/2010 13. per contra, learned APP while supporting the impugned judgment, urged that the evidence of the eye witnesses discloses that except appellant Dinkar, all the appellants were armed with sticks and had assaulted Vitthal with sticks and as stated by Dr.Sangita that the injuries sustained by Vitthal (deceased) can be possible by stick, it has to be inferred from the acts of the appellants that they have common object to commit murder of Vitthal and hence, no interference is warranted in the conviction of the appellants recorded by the trial court. 14. As per the prosecution case, the incident commenced when after initial exchange of wards by appellant Bajirao with PW-12 Dnyaneshwar, appellant Bajirao had assaulted Dnyaneshwar. Thereafter, PW-10 Nanda had informed about the assault on Dnyaneshwar to her parents, who were inside their house. As per the evidence of PW-12 Dnyaneshwar and PW-10 Nanda, at that time except appellant Bajirao, no other appellant was present at the scene of offence. Other appellants appeared on the scene of offence after Vitthal (deceased) and PW-7 Nirmala came out of their house and thereafter Vitthal (deceased) was assaulted by the appellants. In view of these facts, we are in agreement with the submission of learned counsel for the appellants that at the time of attack / assault, allegedly by the appellants on deceased Vitthal, there was no common object to commit murder of Vitthal. Thus, according to us, as the evidence on record is not sufficient to infer that the appellants were the drp {16} Cri. Appeal No.95/2010 members of an unlawful assembly armed with deadly weapons with common object to commit murder of Vitthal. In view of the medical evidence on record, it is clear that deceased Vitthal had not sustained any injury by stone. We have already discussed above that Vitthal expired due to injuries sustained by him from the blows of sticks given on his head by appellants Bajirao and Shivaji. Therefore, according to us, for the injuries sustained by Vitthal (deceased), which resulted into his death, appellants Bajirao and Shivaji are only responsible. As evidence of three eye witnesses is silent on the point that appellants Ramesh and Sheshrao gave any stick blow on the head of deceased Vitthal coupled with the medical evidence, though we accept the evidence of PW-7 Nirmala, PW-10 Nanda and PW-12 Dnyaneshwar on the point that appellants Bajirao and Shivaji gave blow of sticks on the head of Vitthal, yet we discard their evidence to the extent that appellants Ramesh and Sheshrao also gave stick blows on the person of deceased Vitthal, which resulted in his death. In the premise, for the injuries sustained by Vitthal (deceased), which resulted in his death, according to us, appellants Bajirao and Shivaji are only responsible. 15. From the above discussion it is clear that death of Vitthal caused due to the injuries inflicted by appellants Bajirao and Shivaji. Though the death of Vitthal caused due to the assault by appellants Bajirao and Shivaji, yet considering the evidence on record, as aforestated, as though it can be inferred that the drp {17} Cri. Appeal No.95/2010 appellants Bajirao and Shivaji had knowledge that due to the blows given by them Vitthal may sustain injuries which will be fatal to his life, however, certainly, they had no intention to kill him. In this light of the matter, according to us, the appellants Bajirao and Shivaji are guilty for the offence punishable u/s 304 (Part-I) read with 34 of the Indian Penal Code and hence their conviction needs to be altered. 16. Considering the submissions advanced before us, according to us, the injuries sustained by PW-7 Nirmala and PW-12 Dnyaneshwar at the hands of