1 apeal39.183.04 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 39 OF 2004 1 Parashram Bapu Shinde ) aged 46 yrs. r/o Shindewadi out of ) Shiroli, Tal.Chandgad, Dist. Kolhapur. ) 2. Vithoba Bapu Shinde ) aged 41 yrs. r/o Shindewadi out of ) Shiroli, Tal.-Chandgad, ) Dist.-Kolhapur. ) 3. Ramchandra Tukaram Raikar. ) Aged 36 yrs., residing at Chafwade, ) Taluka-Ajara, Dist.-Kolhapur. )....Appellants. Vs. The State of Maharashtra ) through Sr. Police Officer, ) Chandgad Police Station, ) Chandgad, Dist. Kolhapur. )....Respondent. WITH CRIMINAL APPEAL NO.183 OF 2004 Smt. Gangubai Janaba Ingavale. ) Aged 58 years, r/o Shindewadi out ) of Shiroli, Taluka Chandgad, ) Dist. Kolhapur. )....Appellant. Vs. The State of Maharashtra, through ) Sr. Police Officer, Chandgad Police Station, ) Chandgad, District Kolhapur. )....Respondent. Mr. Shekhar Ingavale and Mr. A.S.Patil i/b. V.V.Purvant for appellant in Appeal no.39/04. Mr. D.P.Adsule, APP for State. None for appellant in Appeal no.183/04. 2 apeal39.183.04 CORAM:- P.V.HARDAS AND M.N.GILANI, JJ DATED:- MARCH 22, 2011 JUDGMENT(Per M.N.Gilani,J): 1 The Criminal Appeal no.183 of 2004 has been filed by the original accused no.1 and the Criminal Appeal no.39 of 2004 has been filed by the original accused nos. 2 to 4, in the Sessions Case no.19 of 2002, decided by the Additional Sessions Judge, Gadhinglaj, District Kolhapur on 11/12/2003, whereby the accused no.1 was convicted for the offence punishable under section 324 r/w 34 of the Indian Penal Code and was sentenced to suffer R.I. for two years and to pay fine of Rs.1000/- i.d. to suffer R.I. for three months; and the accused nos. 2 to 4 were convicted for the offence punishable under section 302 r/w 34 of Indian Penal Code whereby each of them was sentenced to suffer imprisonment for life and to pay fine of Rs.1000/- each, with direction to undergo R.I. in default of payment of fine. By these two separate appeals, the accused nos. 1 to 4 have impugned the judgment, order of conviction and sentence. Both these appeals are being disposed of by this common judgment. 2 Facts in nutshell are thus: Pandurang-the deceased, his wife and his two sons have been residing in a hamlet called Shindewadi, which is a part of village Shiroli, Taluka Chandgad, District Kolhapur. The accused no.1 is the real sister of the deceased. The accused nos. 2 to 4 are in relation of the deceased and residing at the same place. All are agriculturists. On account of sharing water of the stream for irrigating their lands, dispute in the nature of civil suit was going on between the deceased and the accused persons. Due to this, relations between the deceased and the accused persons were strained. The incident occurred on 20th June, 3 apeal39.183.04 2002 at about 5 p.m. at Shindewadi. At that time, Shantabai, wife of the deceased had been to her parental house, which is in village Aalabadevi about 1 ½ to 2 kilometers away from Shindewadi. The deceased and his two sons namely Ashok and Santosh finished ploughing operations at about 4 p.m. and had their meals. Thereafter, deceased milched his buffalo and came out of the cattle shed. Suddenly, the accused no.1 came there and threw chilly powder in the eyes of the deceased. Accused nos. 2 to 4, who were armed with sticks, started assaulting the deceased with sticks. The deceased sustained several injuries all over his body. The accused then dragged the deceased to nearby gooseberry(Avala) tree and tied him to the tree and ran away. Santosh and Ashok, sons of the deceased witnessed this incident. When they tried to intervene, they were threatened by the accused. Then, both the sons of the deceased rushed to village Aalabadevi and informed their mother. When all the three came to the spot and saw the deceased in the same position, i.e. tied to Avala tree, they untied him and put him on the ground and covered him with the blanket. The villagers also arrived at the scene of occurrence. From there the deceased was taken to Shiroli. Shantabai and her two sons did not accompany the deceased and instead, came to Aalabadevi to arrange for money believing that the medical treatment of the deceased would need the same. The villagers brought the deceased to Chandgad Police Station and after obtaining memo issued by P.S.O. Chandgad, brought him to the Rural-Hospital. While he was being treated, he succumbed to the injuries at about 12 mid night. Shantabai and her two sons reached Chandgad in the morning and saw the dead body and thereafter, first Information Report was lodged. On that basis Crime no.50 of 2002, under section 302 r/w 34 of I.P.C. was registered. 4 apeal39.183.04 3 The Police Inspector Mr. Vidhate commenced investigation. He held inquest over the dead body of the deceased. Clothes on the person of the deceased were seized. On the same day he visited the spot and recorded spot panchanama. Firstly, the accused no.1 was arrested. On 25th June, 2002, the accused nos. 2 to 4 were arrested. Clothes of the accused were seized. While in the police custody, the accused no.2 made disclosure statement on 27th June, 2002, which resulted in recovery of sticks from his house. Further, necessary steps such as dispatch of seized articles for chemical analysis, collection of the post-mortem report and ultimately filing of the charesheet, were duly completed by the Police Inspector Mr.Vidhate. 4 The learned J.M.F.C., Chandgad committed the case to the Court of Sessions on 7th December, 2002. The learned Additional Sessions Judge, Gadhinglaj took cognizance of the offence and framed charge vide Exh. 30. The accused nos. 1 to 4 pleaded not guilty to the charge and claimed to be tried. On behalf of the prosecution 16 witnesses were examined. No defence witness was examined. After assessing the evidence on record, the learned Additional Sessions Judge came to the conclusion that death of the deceased Pandurang was homicidal. He later concluded that in furtherance of common intention, the accused nos.2 to 4 committed the offence of murder and therefore, he proceeded to convict them under section 302 r/w. 34 of I.P.C. and imposed sentence as stated earlier. However, he acquitted the accused no.1 for the offence punishable under section 302 r/w. 34 of I.P.C. and instead, convicted her for the offence punishable under section 324 of I.P.C. and awarded sentence of R.I. for two years and to pay fine. 5 None appeared for the original accused no.1-appellant in criminal appeal no.183 of 2004. The learned counsel for the accused nos. 2 to 4-appellants in 5 apeal39.183.04 criminal appeal no.39 of 2004, took exception to the judgment, order of conviction and sentence passed by the learned Additional Sessions Judge on various grounds. He has taken us through evidence of eye witnesses and the documents relied upon by the prosecution. His contentions are that : the learned Additional Sessions Judge seriously erred in relying upon the testimony of P.W.6 Santosh and P.W.7 Ashok, who are the interested witness. Their presence on the spot is highly doubtful. If this evidence is disbelieved, the entire prosecution case against all the accused stands dislodged. Evidence of Shantabai is merely hearsay. The prosecution case is that the incident occurred at about 5 p.m. itself is inconsistent with the medical evidence. He drew our attention to the evidence of P.W.13 Dr. Kunti Desai, wherein this witness admitted that undigested food particle was found in the stomach of the deceased. On this basis the learned defence counsel questions the prosecution theory that incident occurred at about 5 p.m. to 6 p.m.. The factum of homicidal death is also disputed. Further, our attention is invited to the admissions given by the witnesses that on the day of incident, marriage of niece of one of the accused was solmanised. According to the learned counsel for the defence, it is unbelievable that on such occasion, the accused would indulge in committing an offence like murder. This also creates possibility of presence of number of persons nearby the spot. In view of P.W.6 Santosh and P.W.7 not stating anything about presence of P.W. 15 Gopikabai, the learned Additional Sessions Judge ought not to have believed her version. In the light of these contentions, the learned defence counsel urged that the order of conviction and sentence passed by the learned Additional Sessions Judge is liable to be set aside. 6 Learned APP supported the order of conviction and sentence. According to him, there exist overwhelming evidence to show that the death of the 6 apeal39.183.04 deceased Pandurang is homicidal and caused by accused nos. 1 to 4, and as such, no fault can be found with the findings recorded by the learned Additional Sessions Judge. 7 The points which arise for our consideration are thus: (1) Whether the deceased Pandurang, son of Ranaba Shinde died homicidal death on account of injuries sustained by him on 20th June, 2002 ? (2) Whether the prosecution has proved that in furtherance of the common intention the accused no.2 to 4 assaulted the deceased Pandurang with sticks and wooden planks ? (3) Whether finding of learned Additional Sessions Judge holding the accused no.1 guilty of minor offence punishable under section 324 is correct? Findings- Point nos.1 to 3 : Affirmative. 8 P.W.13 Dr. Desai was on duty as medical officer in the Rural Hospital, Chandgad on 20/6/2002. The deceased was bought to the hospital at about 11.45 p.m.. She noticed 12 injuries and started treatment. However, at about 12 O’Clock mid night, the deceased succumbed to injuries. On the next day in between 1.30 p.m. to 2.30 p.m. she conducted autopsy and signed the post mortem notes. The injuries noticed by her and mentioned in post-mortem notes Exh.65 are as follows: 1) CLW on Rt. Side of forehead near Rt. Eyebrow 2 x 1 c.m. 2) CLW on frontal region 4 x 1 x 1 cm. 3) CLW on lt. parietal region 4 x 1 x 1 cm. 4) CLW on mid parietal region 5 x 1 x 1 cm. 5) CLW on lt. Leg shin 3 x ½ cm. 6) CLW on Rt. leg shin 2 x ½ cm. 7) CLW on Rt. knee 2 x ½ x ½ cm. 8) CLW just above lt. elbow laterally 2 x ½ x ½ cm. 9) CLW on ulnar side of forearm 2 x ½ cm. 10)Swelling of Rt. wrist. 11)Abrasion on 11 scapula upper region with contusion of 6 x 4 cm. 12)Contusion on right shoulder 5 x 3 cm. 7 apeal39.183.04 She opined that the cause of death was due to cardio-respiratory arrest due to intra cranial haematoma. Injuries were ante-mortem and possible by sticks and wooden plank. She further opined that all the injuries were sufficient in the ordinary course of nature to cause death. Her cross-examination revealed the nature of treatment given to the deceased including artificial respiration and cardiac massage. She clarified that the injury like contusion is possible by fall on hard and blunt substance. The defence wanted to point out that the deceased was addicted to liquor and ganja and was of quarrelsome nature. On the day of incident, he attempted to assault female members in the family of accused by entering in their house. When the deceased was chased by them, he ran away and then fell on the sharp stones and sustained injuries. Similar suggestions were put to P.W.6 Santosh and P.W.7 Ashok. It is, pertinent to note that ante- mortem injuries mentioned in Exh. 65 are twelve in numbers. Nine of them are in the nature of contused lacerated wounds. Thus on probability factor – all the injuries were sustained by the deceased with sticks and wooden planks. In view of this, the learned Additional Sessions Judge was correct in holding that death of Pandurang was homicidal. 9 Now, we shall advert to the eye witness account of P.W.6 Santosh and P.W.7 Ashok who are the sons of the deceased and deposed in detail about the incident. It has come in the evidence of PW 6 Santosh that on the day of incident, he, his brother PW 7 Ashok and the deceased were engaged in ploughing the land. After finishing ploughing work they had their meals. Then the deceased went to milch buffalo in the cattle shed, which is adjacent to their house. When the deceased came out, the accused no.1 appeared there and threw chilly powder in his eyes. Immediately, thereafter the accused nos. 2 to 4 came on the spot armed with sticks and wooden planks and started assaulting the 8 apeal39.183.04 deceased. The deceased sustained bleeding injuries. The accused then dragged the deceased to nearby gooseberry tree and tied him to the tree. He and his brother then rushed to Aalabadevi to inform their mother. P.W.7 Ashok deposed in the same line. On material particulars, testimony of both these witnesses is consistent. Both have been extensively cross-examined on the point of enmity which they have admitted. It was suggested to them that the deceased was addicted to liquor and also used to consume ganja. On the day of incident, the deceased was under the influence of liquor. Female members of the family of the accused were engaged in cleaning utensils after marriage ceremony was over. Deceased went to them and started talking in filthy language. Even stones were pelted at them. Annoyed with this, the female members retaliated by running behind the deceased. In bid to escape, the deceased ran helter-skelter and fell on stones. Similar suggestions were given to other prosecution witnesses which have been refuted by all of them. Learned defence counsel contended that PW 7 is the child witness and hence his testimony should not have been relied upon. It may be noted that before proceeding to record the evidence of P.W.7 Ashok, the learned Additional Sessions Judge was satisfied that this witness understood the nature of questions put to him and was able to give rational answers to it. Only thereafter, he administered oath to the witness and proceeded to record his evidence. no doubt, they are related witnesses but at the same time, their presence on the spot is natural, they being the sons of the deceased. It is clarified by the P.W.7 that their school was to reopen from 26th June, 2002. This follows that on the day of incident schools was closed, probably, on account of summer vacation. 10 Conduct of P.W.6 Santosh and P.W.7 Ashok in rushing to the village Aalabadevi and narrating incident to their mother P.W.5 Shantabai is consistent 9 apeal39.183.04 with the prosecution case. The narration of the incident to their mother without any loss of time being the part of the same transaction and thus admissible as res-gestae under section 6 of the Evidence Act. 11 Evidence of P.W.5 Shantabai is fully consistent with the eye witness account given by her sons P.W.6 Santosh and P.W.7 Ashok. While deposing, she narrated the cause of dispute between the deceased and the accused persons. According to the defence, this is the reason for involving the accused persons falsely. Motive is double edged weapon. However, in the present case, the prosecution case is having been based upon the eye witness account, motive even if exists, is of little significance. 12 Adverting, further to the evidence of P.W.5 Shantabai, she deposed about rushing to the spot and then seeing her husband at Shiroli. She came back to house to arrange money for medical treatment. This is natural conduct and does inspire confidence. It explains the circumstance as to why she did not accompany her husband. Since, it was late night, she came back to Chandgad in morning, then lodged first information report Exh. 45. The story as narrated by both the eye witnesses and the events occurred thereafter as narrated by P.W.5 Shantabai are very much consistent with the contents in the FIR Exh. 45. 13 As regards eye witness account of P.W.15 Gopikabai, mother of the deceased as well as accused no.1, the defence has rightly critisized her evidence on the ground that her presence on the spot is doubtful. We are in agreement with him for the reasons that both the eye witnesses did not make mention of her presence on the spot. Even apart, no other witness spoke about presence of P.W. 15 Gopikabai on the spot. Moreover, her conduct in not rushing to the help of the deceased or atleast not releasing him when accused persons had tied the deceased with gooseberry tree, makes her presence doubtful. Therefore, we 10 apeal39.183.04 keep her evidence out of consideration. 14 The learned counsel for the defence drew our attention to certain observation in post-mortem notes regarding finding of undigested food particle in the stomach. The point canvassed is, if this is so, then the prosecution cases as unfolded by eye witnesses, that, the deceased had his meals at about 4 p.m. appears improbable and in turn this is sufficient to doubt veracity of the prosecution case particularly testimony of both the eye witnesses. 15 We find from the evidence that the deceased succumbed to the injuries at 12 mid night. Now, issue is whether for 7 to 8 hours some food particles can remain undigested. Usefully reference can be made to Lyon’s Medical Jurisprudence & Toxicology, 11th Edition, page 728 on the subject of gastric emptying and digestion. The author states : “There are two aspects to this assessment. Firstly the state of digestion and secondly the time required for gastric emptying. Various authors have estimated the time required for both aspects differently. However, it might be pertinent to remember that the rate of digestion and gastric emptying is dependent upon a number of factors such as the quantity, type, consistency and composition of food, alongwith gastro-intestinal and autonomic conditions that might affect gastric emptying.” In our considered view finding of particles of undigested rice, in the stomach of the deceased, judged in the surrounding facts and circumstances of case, does not in any manner create doubt in the prosecution case. It may be noted that suggestions were put to the witnesses that the deceased got injured by falling on the stones in the evening of the day of the incident. It was also suggested that he was tied to a gooseberry tree and then, as per prosecution case, villagers removed him to the hospital. 16 P.W.16 Investigating Officer visited the spot on the next morning of 21st June, 2002 and drew panchanma Exh. 39. According to him, adjoining to house of the deceased there is a cattle shed. Chilly powder was found lying on the 11 apeal39.183.04 ground. There is gooseberry tree at the distance of 30 ft. from the spot and rope was found lying there. He collected samples of plain earth, blood stained earth, earth mixed with chilly powder and also seized the rope. The samples were seized before panchas. P.W.2 Prakash Shinde is panch witness. He deposed about visiting the spot and being a signatory to the panchnama Exh. 39. His evidence shows that the spot is in front of the house of the deceased. Blood stains were seen on the earth. He also saw chilly powder and the rope. This witness was also subjected to lengthy cross-examination. He satisfactorily answered the questions such as distance between Shindewadi and the village Shiroli, the location of the house of Dhondiba, brother of the deceased. Then he was asked about the stones lying around the spot. Although Dhondiba’s house was adjoining to the spot, it would not mean that he was necessarily present in the house at the time of incident. This exercise seems to have been carried out to create a probability that injures on the person of the deceased were caused because he had fallen on the ground. Then he spoke about raining on the previous night. Despite searching cross-examination nothing could be elicited to dislodge the prosecution case on any material particular. 17 Vide letter dated 20/7/2002 the seized articles were sent for chemical analysis. Report of the chemical analysis is at Exh. 12/C. The opinion is that the earth mixed with reddish powder contains chilly powder. Rope(Article-4) was also found stained with human blood. However, the blood group could not be determined. The learned Additional Sessions Judge has rightly used this evidence to derive corroboration to the prosecution case. 18 P.W.9 Dattaji is the owner of the tempo-tracks to whom the villagers approached and requested him to carry the deceased to Chandgad. This happened on the night of 20/6/2002. He carried the deceased in his tempo- 12 apeal39.183.04 tracks from village Shiroli to Chandgad Rural Hospital. 19 According to the P.W.11 Mulla on the night intervening 20/6/2002 and 21/6/2002 injured Pandurang was brought to the police station and he immediately issued memo addressed to the Rural Hospital for providing medical treatment to him. Exh. 57 is the memo which mentions about blunt injuries(muka mar) to which the learned Counsel for the defence invited our attention. According to him, there is no evidence that the police were informed about incident on the night of 20/6/2002. It may be noted that the injured was totally at the mercy of villagers and many of the villagers had grudge against him, which is evident from the testimony of the P.W.12 Tukaram. Moreover, P.W.11 Head Constable Mulla did not take any pain to personally see the injured and instead, believing upon the villagers, he prepared a memo Exh. 57. Thus, not mentioning injuries like contused lacerated wounds in memo Exh.57 is insignificant. 20 P.W.10 Krishna is a person who received information about the incident through Dhondiba. According to him, he gave information to the Chandwad Police Station about the incident and went to Shindewadi. He saw deceased lying in front of the door of his house. The injured was brought to village Shiroli by covering him with blanket and thereafter he was removed to Chandgad in tempo-tracks owned by P.W.9 Datta. In cross-examination, he deposed that Tukaram telephoned the police at about 7.30 to 8.00 p.m.. It is therefore, clear that this witness did not inform the police on telephone. Evidence of P.W.12 Tukaram is silent on this point. Nor this was elicited in his cross-examination. Presumably, the learned APP did not ask any thing to P.W. 12 Tukaram about his informing to the police, for the reasons that he was examined to prove the recovery of sticks at the instance of the accused persons. 13 apeal39.183.04 It appears from the evidence of P.W.10 Krishna that nothing was disclosed by the deceased to them for the reasons that he was in semi-conscious state, as has been deposed to by the P.W.13 Dr. Desai. This seems to be the reason as to why the evidence in the form of dying declaration did not surface. 21 Although, prosecution relied upon the recovery of weapons of the offence which are sticks and wooden planks, we are not inclined to believe this evidence. This recovery was effected on 27th June, 2002 i.e. after seven days of the incident. The close scrutiny of evidence of P.W.12 Tukaram shows that although the disclosure statement was made by the accused no.2, all the three accused were carried in a jeep to the place from where sticks and wooden planks were discovered. It is not understood as to why accused nos. 3 and 4 were also carried in the jeep. The evidence of P.W.12 Tukaram further shows that all the three sticks were pointed out by accused no.2 from the same house but were kept at different places. In the next breath he spoke that firstly one stick was pointed out which was lying in one room, other stick was shown from the different room and then wooden plank was shown. It appears to be improbable that the blood stained sticks were kept preserved by the accused persons over a period of five days from the date of incident. Arrest of the accused no.2 to 4 was effected on