1 CR. APPEAL NO.422/1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.422 OF 1999 Date of decision:29/3/2011 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/422-99cr.a 2 CR. APPEAL NO.422/1999 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.422 of 1999 1. Rameshwar s/o Namdeo Nikalje, Age 24 years, occupation labour, r/o Brijwadi, Aurangabad. 2. Uttam s/o Murlidhar Narwade, Age 27 years, occupation and r/o as above. ...APPELLANTS (Ori.Accused Nos.1 and 4 respectively) VERSUS The State of Maharashtra. ...RESPONDENTS ... Mr. Vijay Sharma, Adv., for the appellants. Mr. N.B.Patil, APP for State. ... CORAM: K.U.CHANDIWAL, J. DATE : March 29th, 2011 *** 3 CR. APPEAL NO.422/1999 ORAL JUDGMENT: 1. Heard. The appeal was admitted on 5.11.1999. 2. The accused/appellants (original accused nos. 1 and 4) question conviction and sentence recorded by the IInd Additional Sessions Judge at Aurangabad dated 7.10.1999 in Sessions Case No. 230/1995, convicting the appellants for an offense under Section 325 read with Section 34 of IPC, to undergo rigorous imprisonment for three years and accused no.1 to pay fine of Rs.10,000/- ( Rs. ten thousand) and accused no.4 to pay fine of Rs.1000/-. They were also convicted for infraction of Section 323 read with Section 34 of IPC, to undergo sentence of one year and pay a fine. Both the sentences were directed to run concurrently. 3. FACTS: Ramchandra (deceased) was residing separate from his sons. Chainsing, one of his son, was residing at Brijwadi nearby his other brothers in cluster of rooms. On 15.2.1995, while Chainsing was returning home, the accused accosted him near statue of Gautam Buddha, questioned him as to escaping casting vote to a particular candidate inspite of accepting money. When the complainant Chainsing returned home, the 4 CR. APPEAL NO.422/1999 accused barged at him, assaulted him. In the brawl, Ramchandra, who was incidentally in the room, with other family members, rushed to rescue Chainsing. The accused, allegedly, inflicted fist and kick blows to Ramchandra. Rameshwar, with force, gave blow to Chainsing. Resultantly, he suffered at his nose while other accused/appellant assaulted Ramchandra, Sugandhabai (PW No.3), Yashodabai (PW 5). 4. Due to kick blows aiming the stomach of Ramchandra, he became unconscious. It is alleged, accused Uttam too had slapped and inflicted fist blows to Ramchandra. Other women accused caught hold hair of Sugandbabai, Vimalbai and Yashodabai and beat them brutally. Chainsing could not take Ramchandra either to Police Station or a nearby hospital throughout the night due to electricity failure. Next day morning Chainsing along with Ramchandra approached Police Station. Chainsing was treated for the injuries, discharged, while Ramchandra was admitted at Hospital. Based on report of Chainsing, a non cognizable offense was registered on 16.2.1995. 5. Head Constable Jalil visited Ramchandra at Hospital. Ramchandra was was unconscious. He recorded statement of Ramchandra on 20th Feb., 1995, based on gestures of said Ramchandra, 5 CR. APPEAL NO.422/1999 giving rise to Crime No.23/1995. Ramchandra succumbed to the injuries and expired on 21.2.1995. 6. The accused did not plead guilty to the charge, their defense was of total denial. Based on notice in terms of Section 294 Cr.P.C., spot panchnama, inquest, seizure panchnama of apparels was admitted ( Exhs. 11,12,13, 14 respectively). 7. The charge, was initially for an offense under Section 302 of IPC, it was later altered to Section 302 read with Section 149 of IPC. Consequently, the charge was again explained to the accused for an offense under Section 302 read with Section 149 of IPC. The charge reads as under: " That you all accused, on the afore mentioned date, time and place, in prosecution of your common object, of an unlawful assembly, had committed homicidal death of deceased Ramchandra Motiram Khurde with intention and knowledge and thereby committed an offense punishable under Section 302 read with Section 149 of IPC and within the cognizance of the Court of Sessions." This was on 13th day of August, 1999. 6 CR. APPEAL NO.422/1999 8. The prosecution has put in following ten witnesses: PW No.1, Chainsing Ramchandra Khurde, son of Ramchandra (Deceased). PW No.2 Dr.Sureshchandra Gambhirrao Chavan. He proved injury certificate of deceased and Chainsing at Exhs. 18 and 19. PW No.3 Sugandhabai w/o Chainsing Khurde claims to be an eye witness. PW No.4 Rohidas Ambadas Ghodke, another eye witness. PW no.5 Yashodabai Seetaram Khurde, eye witness. PW No.6 Dr.Anil Digambarrao Jinturkar proved post mortem notes ( Exh.31). PW No.7 Govind Haribhau Yadav did not support the prosecution. PW No.8 Dr.Umesh Vidyadhar Takalkar produced a endorsement at Exh.38 of Dr.Papurnia. The endorsement was not made in his presence about consciousness and orientation of Ramchandra Motiram Khurde. PW No.9 is Police Constable, namely, Raju Laxman Magare. He identified handwriting of Head Constable Jalil Hussain, who has, allegedly, recorded dying declaration of Ramchandra. He has also identified signature of Jalil Hussain on the letter. He accepted that the signatures and contents of the documents at Exh.38 or 40 were not written or signed in his presence. PW No.10 PSI Baburao Kondiram Kanje, carried the investigation 9. The accused/appellants, in the statements under Section 313 Cr.P.C. did not 7 CR. APPEAL NO.422/1999 dispute identity of PW No.1 Chainsing, PW No.3 Sugandhabai, PW No.5 Yashodabai or of deceased Ramchandra to be resident of Brijwadi and known to them but challenged their involvement in any act due to which Ramchandra allegedly suffered and succumbed. The defense is of total denial, being implicated on political rivalry in two factions of the group of the accused/appellants. 10. The learned Additional Sessions Judge accepted that death of Ramchandra was homicidal, however, did not believe that it was caused by the accused with intention or knowledge. The learned Judge also did not believe that the accused/appellants were members of unlawful assembly and, in prosecution of common object, committed offense of rioting or punishable under Section 147 of IPC. The learned Judge did not believe that the accused, being members of unlawful assembly, in prosecution of their common object, had intention and with knowledge, caused death of Ramchandra and committed offense under Section 302 read with Section 149 of IPC. However, he convicted the appellants/accused nos. 1 and 4, for an offense under Section 325 read with Section 34 of IPC. The appellants/accused nos. 1 (Rameshwar Namdeo Nikalje) and No.4 ( Uttam s/o Murlidhar Narwade) were acquitted of the charge under Section 325 read with Section 149 of IPC, however, were found guilty for the 8 CR. APPEAL NO.422/1999 offense under Section 323 read with Section 34 of IPC. 11. The FIR of Chainsing dt.16.2.1995, visits to the events in the night, after 10 p.m. and informs that the accused/appellant Uttam, Raju and others barged at his house and inflicted kick and fist blows, intervention by his father also yield identical challenge and treatment. His father suffered abrasions. 12. The dying declaration of Ramchandra is disbelieved by the learned Sessions Judge and rightly so as Chainsing or Sugandhabai, in their respective depositions accept, from the date of the incident dt.15.2.1995, till Ramchandra breathed his last, he was unconscious. If this was so, there was no occasion for Head Constable Jalil to record the dying declaration dt. 19.2.1995, by conforming to the gestures of Ramchandra. The dying declaration is not proved as Head Constable Jalil did not step in the witness box. PW No.9 Raju simply proved the writing of Head Constable Jalil. This will not absolve the prosecution from proof of contents of the dying declaration purported to be a dying declaration of Ramchandra. After the dying declaration is excluded, as has been done by the learned Sessions Judge, then remains the FIR referred above implicating Uttam, Raju. 9 CR. APPEAL NO.422/1999 Ramchandra, had contusion, tenderness and swelling all over abdomen. There was perforation inside and he succumbed to the injuries later on during treatment. The cause of death was "Toxaemic shock due to perforation peritonitis due to blunt abdominal trauma with associated findings (i) evidence of lapratomy operation, (ii) discrete reddish pinkish contusions in deep layers of abdominal wall at both flanks and peri- umbillical regions and (iii) multiple irregular reddish abrasions over both knee and right elbow". Thus, evidence of Dr.Jinturkar and of Dr.Chavan establish that the death of Ramchandra was homicidal. 13. PW No.4 Rohidas and PW No.7 Govind, did not accelerate the prosecution case. On the other hand, PW No.4 Rohidas says, there was quarrel between Ramchandra and Chainsingh. Chainsing kicked his father, resultantly, Ramchandra fell. 14. The three witnesses to which reliance is placed by the learned Judge, namely, PW No.1 Chainsingh, PW No.3 Sugandhabai and PW no.5 Yeshodabai need not be rejected being interested witnesses. In the manner in which the offense, allegedly, has taken place, there are least chances that outsiders will peep in, intervene and invite wrath of the accused/appellants. It 10 CR. APPEAL NO.422/1999 will be the inmates who will be in a better position to narrate the events with precision or in sequence. However, inspite of these aspects, evidence of PW No.1 Chainsing or of Sugandhabai or of Yashodabai does not inspire any confidence, to accept, as the evidence is full of omissions, is in aggravated form and projects the events out of proportion. The prosecution has to prove its case beyond reasonable doubts. The timings in narration are not matching, even if concession is given, the three events or sequences, to which PW No.1 Chainsing refers, do not find place in the FIR narrated on the next day (16.2.1995). PW No.5 Yashodabai says that, after the incident, when her husband came around midnight, she did not inform him of the events. On the next day, it was her mother-in-law and Sugandhabai who went to Police Station while PW No.1 says, he, along with his father, went to Police Station. If mother-in-law had gone and matter was reported then, such statement should have been produced. PW No.5 says, twenty minutes before the incident, she had left the house of Chainsing. Till they were chit-chatting and she had left the house of Chainsing, nothing had taken place. PW No.5 could not be an eye witness to the incident. PW No.3 Sugandhabai refers the timings of events as 8.30 p.m. to 9 p.m. She says, Uttam slapped her. Rameshwar kicked and inflicted fist blows on stomach of her father-in-law. Uttam also 11 CR. APPEAL NO.422/1999 assaulted him. PW 1 does not say so. In their locality, there are Rickshaws, Jeeps, however, but not a Medical Officer in Brijwadi. She did not narrate the incident to anyone before informing the same to the Police. She confronts PW No.5 Yashodabai about visits to Police Station and submits that it was she, her husband and father-in-law who had gone to Police Station. When the incident took place, people nearby closed the windows and ran away. 15. The learned Sessions Judge believed the above quality of evidence to be consistent in its narration and hold accused Rameshwar gave blow on the stomach of the deceased. Resultantly, Ramchandra fell and it is corroborated by medical evidence; being perforation in the stomach due to forcible blow. There was, indeed, no consistency in the evidence of Chainsing or of Sugandhabai or Yashodabai, as learned Sessions Judge has stated. The events are blown out of proportion to ensure that the accused face turmoil, being politically motivated or with other cloud in the mind. 16. The learned Sessions Judge held accused No.1 Rameshwar guilty for having caused blows to Ramchandra and committed grievous hurt, resulting in death of said Ramchandra and punished under Section 325 of I.P.Code. 12 CR. APPEAL NO.422/1999 17. The learned Sessions Judge accepted that accused/appellants were not members of unlawful assembly or that, in prosecution of any common object, they had caused death of Ramchandra. Having reached to this position, the learned Sessions Judge could not have taken aid of Section 34 to convict the appellant for an offense under Section 325 IPC. Under Section 149 of I.P.C., the liability arises by reason of the membership of the unlawful assembly with a common object and there may be no active participation at all in the preparation or commission of the crime. Section 34 of IPC does not by itself create any offense whereas Section 149 of IPC does. In a charge with aid of Section 34 there is active participation in commission of the criminal act. 18. Learned Counsel for the accused/appellant placed reliance to the judgment of the Apex Court in the matter of Subran alias Subramanian and others v. State of Kerala ( 1993 CRI.L.J. 1387). Hon'ble Lordships have held, a person charged for an offense under Section 302 read with Section 149 of IPC, without specific charge having been framed against him, as envisaged by law, conviction for substantive offense, in such case, is unjustified because an accused might be misled in his defense by the 13 CR. APPEAL NO.422/1999 absence of the charge for the substantive offense under Section 302, IPC. The accused was not called upon to meet the charge of such type. Considering this legal position, even if the learned Sessions Judge converted the offense from Section 302 of IPC to one under Section 325 of IPC, however, he could not do so, as a substantive offense, since initially, the accused/appellant was informed to face trial, was for offense punishable under Section 302 read with Section 149 or Section 325 read with Section 149 of IPC. There is no evidence that accused formed an unlawful assembly and committed offense alleged. There is no apparent intention on the part of appellants to ponder upon deceased to inflict kicks. 19. The survey of above legal position, low quality of evidence is not convincing, the conviction and sentence of the accused/appellants for the offense under Section 325 read with Section 34, Section 323 read with Section 34 of IPC, hence calls for interference. It is, accordingly set aside. Appeal allowed. The fine amount deposited by the accused be refunded after sixty days. (K.U.CHANDIWAL) JUDGE ... AGP/422-99cr.a