1 Cri. Appeal No.241.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.241 OF 2007 1.Bansi S/o Natha Jadhav, Age 52 years, Occup. Agricultrist, R/o Devtakli Taluka Shevgaon District Ahmadnagar. 2.Bharat S/o Bansi Jadhav, Age 25 years, Occup. Agriculturist R/o Devtakli Taluka Shevgaon District Ahmadnagar. Appellants Ori.Accused No.1 and 2 V E R S U S The State of Maharashtra Respondent ... Smt. S.S.Jadhav,Advocate for appellants Mr. S.V.Kurundkar,A.P.P. for respondent ... CORAM : P.V.HARDAS AND A.V.NIRGUDE, JJ. Date : 17th NOVEMBER,2009 JUDGMENT : ( PER A.V.NIRGUDE, J.) . This appeal is filed against the judgment and order passed by the learned Adhoc Additional Sessions Judge, Ahmednagar, dated 13th December, 2006, in Sessions Case No. 207 of 2005 convicting the appellants (Original Accused nos. 1 and 2 ) for offences punishable under section 302, 323, 324 and 452 read with section 34 of the Indian 2 Cri. Appeal No.241.2007 Penal Code and sentencing them to suffer life imprisonment for the offence punishable under section 302 read with section 34 of the Indian Penal Code. The learned Judge of the trial court did not ascribe separate sentences for the offences punishable under section 323, 324, 452 read with section 34 of the Indian Penal Code. The appellants were acquitted of the offences punishable under section 504 and 506 read with section 34 of the Indian Penal Code and under section 37(1)(3) read with section 135 of the Bombay Police Act. Facts of the case are as follows: 2] The appellants were initially cultivating a piece of land belonging to one Balkrishna, who cancelled the arrangement and entrusted the land to one Abasaheb Surase, and so the appellant and their family members developed grudge against the members of Surase family. The incident took place on 8th July,2005 at about 5.30 a.m. It is alleged that the present appellants along with four other accused entered into the house of Surase armed with sickle, Axe, iron rod and stick etc. All of them launched an assault with weapons on the inmates of the house indiscriminately. In the melee, the appellant No.2 Bharat allegedly dealt one blow of the sickle on the head of senior Surase viz. Laxman aged 75 years, which proved fatal. The appellant No.1- Bansi and other 3 Cri. Appeal No.241.2007 accused used their weapons for assaulting other inmates of the house, abused them and left the spot. The prosecution also alleged that after this incident the appellants and other accused had another incident of attack near ‘Ves’(entrance) of the village. One of the injured persons viz. Abasaheb Laxman Surase(aged 45 years) reached to the Police Station and lodged his complaint Exh.46. The Police registered the crime, vide Crime No.130 of 2005 at Shevgaon Police Station, against the appellants and other accused for the offences punishable under section 307, 452,147, 148 read with section 34 of the Indian Penal Code. Laxman Surase, the injured, succumbed to the injuries on 15th July, 2005. Therefore, an offence punishable under section 302 of the Indian Penal Code was added. On the same day, at the behest of the group of the appellants, the Police also registered another offence bearing Crime No. 131 of 2005 against the prosecution witnesses in this case. One of the acquitted accused in this case viz. Abasaheb had sustained grievous injuries and was hospitalized for few days. The prosecution witnesses were accused in Sessions Case No. 207 of 2005. 3] After the trial was held, the learned Judge of the lower Court, as said above, convicted only the appellants (Original Accused Nos.1 and 2) for 4 Cri. Appeal No.241.2007 the offence punishable under sections 302, 323, 324, 452 read with section 34 of the Indian Penal Code. Being aggrieved by the said judgment and order, the present appeal has been filed. 4] Before adverting to the submissions of the learned counsel appearing for the appellants, we must, in short give gist of the prosecution evidence. The incident took place in the house of Surase family. During the incident, due to the assault, eight persons from Surase family, who were inmates of the house, sustained various injuries. Some of the injuries were fractures of limbs. Besides, as said above, Laxman, the patriarch of the family succumbed to death. The prosecution witnesses No. 1, 8, 9, 10, 11, 12 and 13 are six eye witnesses, who more or less described the incident in similar fashion. During the course of investigation, the prosecution witness no.17 PSI Pawar, Investigating Officer of this case, drew a scene of offence panchnama Exh.51, Inquest Panchnama Exh. 59 and also recorded discovery panchnama at Exh. 53 and 54. The prosecution witness no.4 Santosh proved these panchnamas. It is stated that, the appellant no.2 Bharat led the Police to a place where he discovered the weapons viz. a 5 Cri. Appeal No.241.2007 pipe, an Axe and a sickle, which were then seized. The prosecution witness no.15 Dr. Ramkrishna Bhusari deposed that, he conducted Post-Mortem examination on the dead body of victim Laxman and specifically stated that Laxman died due to head injury with multiple surface injuries all over his body. He stated that Laxman died mainly because the injury on his head which he found to be 'sutured wound' on right parietal region having length of five cm. He also stated that, internal injury corresponding to above mentioned injury was extensive. There was not only a crack fracture on right temporal bone but there was hematema under the scalp on extradural area and haemorrhage on left side of brain. It is, thus, obvious that this head injury was the principal cause for the death of the deceased. 5. The prosecution witnesses No.14 and 15 are Medical Officers, who had examined the prosecution witnesses for the injuries and who had issued ‘Injury Certificates’. 6] Gist of the deposition of the eye witnesses can be stated as under. . The incident took place on 08.07.2009 at about 5.30 a.m. at the residential house of 6 Cri. Appeal No.241.2007 Surase family. Some of the members of the family was still asleep and some were woken up. At that time the appellant no.1 Bansi, appellant no.2 Bharat and accused Abasaheb, accused Mahadeo, accused Arun and accused Meera entered in the house and started giving abuses. They entered the house from the rear side door of the house. The appellant no.2 Bharat dealt one blow of the sickle, on hand and on head of deceased Laxman. The appellant no.1 Bansi threw chilly powder in the eyes of witness no.8 Vastalabai and then dealt blows of iron pipe on her head. Accused Abasaheb delt an Axe blow on the head of Vikram, accused Mahadeo assaulted P.W.13-Sanjay and caused him injuries. Despite cross examination of these witnesses, most of them stood their ground. However, the learned Judge of the lower Court discarded the prosecution evidence. So far as evidence against other accused was concerned, the learned Judge believed the prosecution evidence to the extent of the appellants. Since the prosecution has not filed appeal against the judgment and order of other accused, the scope of this appeal is limited to the extent of judgment of conviction of the appellants. In this back ground, we must now deal with the submissions of learned Advocate appearing for the appellants. 7] First submission made by Mrs. Jadhav is about conviction of appellant-Bansi under section 302 7 Cri. Appeal No.241.2007 read with section 34 of the Indian Penal Code. She rightly pointed out that all the prosecution witnesses almost unequivocally stated that, it was the appellant-Bharat alone, who dealt sickle blow on the head of the deceased Laxman. There is nothing on record to show that either appellant Bansi or other accused had attacked, assaulted and caused injuries to the deceased Laxman. She said, if all similar placed accused were acquitted, there was no logic in convicting the appellant-Bansi utilising the provision of section 34 of the Indian Penal Code. She rightly pointed out that, since the appellants are not convicted with the help of section 149 of the Indian Penal Code, being members of unlawful assembly and having committed an offence of murder and causing injuries, and since appellant Bansi is convicted utilising the provision of section 34 of the I.P.C., there should have been material on record showing that the appellant Bansi committed such overt act so as to constitute sharing of common intention of the appellant Bharat, who dealt sickle blow on the head of the deceased. From the narration of the prosecution witnesses, it is clear that, the appellants and others had entered the house of prosecution witnesses, they certainly formed unlawful assembly with view to attack and caused injuries to the prosecution witnesses. They certainly succeeded in achieving that common 8 Cri. Appeal No.241.2007 object. Other prosecution witnesses namely, prosecution witness no.8-Vatsalabai, prosecution witness No. 10-Rajendra, Prosecution witness no. 11 Surekha , prosecution witness no.12-Ramnath, prosecution witness No.13-Sanjay and three others sustained multiple injuries. It appears, the prosecution witnesses no. 10, 11 and 12 sustained multiple grievous injuries with fracture to limbs. Now since the learned Judge of the lower Court acquitted all accused from accusation of being members of unlawful assembly. There is no question of taking into account the common object of such assembly. So we have to see whether the appellants could have had at the most common intention to cause multiple injuries to the inmates of the house of Surase family, in furtherance of such common intention, the specific overt act of the appellants must be examined and appreciated. 8] Let us come back to the overt act attributed to the appellant no.1 Bansi. As said above, Bansi did not attack deceased Laxman and so it can not be said he shared common intention with appellant no.2 Bharat who had attacked the deceased Laxman. The appellant no.1- Bansi, therefore, would succeed in getting his conviction under section 302 read with section 34 of the Indian Penal Code set aside. However, his conviction under sections 324,325,452 read with 9 Cri. Appeal No.241.2007 section 34 of the Indian Penal Code can not be disturbed and we would retain the same. 9] The second submission of Mrs. Jadhav is that, since the court has separated the case of the appellant no.1 Bansi from that of other appellants, so far as it relates to attack on the deceased, it is necessary for the Court to examine whether the appellant no.2 Bharat could be convicted under section 302 of the Indian Penal Code or whether he could be convicted under section 324 of the Indian Penal Code. In other word, Mrs. Jadhav is trying to suggest that the appellant no.2.Bharat had not committed the murder of deceased Laxman but was responsible for committing his culpable homicide. But having regard to nature of injuries, which are discussed above, we have no doubt in our mind that, the case against the appellant no.2 would squarely fall within section 300 (Thirdly), it reads as; 300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death,or Secondly : .... Thirdly: If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,or Fourthly: .... 10 Cri. Appeal No.241.2007 10] We are unable to accept the argument of Mrs Jadhav that medical evidence does not support the prosecution case, that the deceased Laxman sustained incised wound on his head due to sickle blow. But the prosecution witness no. 15 noted down in the Post-Mortem Note [Exh.54/A] that there was one external injury on the head of the deceased, which was a 'sutured wound' on the right parietal region, 5 C.M. in length. She brought to our notice that the prosecution witness no.15 admitted that it was difficult for him to say that injury on the head was caused by sharp and pointed object. He also admitted that he would not be able to say whether edges of the injury were clean cut or other wise. However, we do not attach much importance to the part of the deposition of prosecution witness no.15 Dr. Ramkrishna Bhusari. The deceased Laxman survived for about eight days after the incident and he was taking treatment in ‘Sasoon Hospital’ at Pune. Dr. Bhusari gave reason as to why he could not opine as to whether the injury on the head was caused by sharp and pointed weapon because it was in sutured condition, so he could not seen the edges of the injury. But, we have, no doubt in our mind that the head injury was result of sickle blow dealt by the appellant no.2 looking to the internal damage caused due to this injury and old age of the victim. The case, in our view, 11 Cri. Appeal No.241.2007 would squarely fall within clause thirdly of section 300. So, we reject Mrs. Jadhav’s submission. 11] Mrs. Jadhav then pointed out that the learned Judge of the lower Court did not give any importance to the fact that accused Abasaheb had sustained injuries on his person and that prosecution witnesses were accused in cross case (Sessions Case No. 207 of 2005). We can not accept this contention because, during cross examination of witnesses, the appellants or other accused did not put to them that one of the accused had sustained injury and that there was counter Sessions Case pending against some of the prosecution witnesses. In other words, on one hand, defence of the appellant and other accused was of total denial and on the other hand they did not try to prove on probability that they were victims of attack or counter attack launched by some of the prosecution witnesses. In absence of specific defence we are unable to accept the contention of Mrs. Jadhav. 12] Mrs. Jadhav, lastly, pointed out that some of the injured persons were not examined as prosecution witness. She pointed out that Vikram, who sustained injury on head was not brought before the trial Court, as witness. She asserted that this was deliberately done. But we 12 Cri. Appeal No.241.2007 are not inclined to give much importance to such lapse on the part of prosecution case. Apparently, two more injured witnesses of the prosecution side namely Gorakh and Uma, too were not examined as witnesses. It is not always necessary that all injured witnesses are required to be examined as prosecution witnesses. Prosecution can certainly pick and choose as to who they should examine and who they should not. At least in this case no adverse inference can be drawn for dropping these three witnesses. In view of this following order would meet the ends of justice. “Criminal Appeal No. 241 of 2007 is partly allowed. Appellant Bansi S/o Natha Jadhav is acquitted of the offence punishable under section 302 read with section 34 of the Indian Penal Code and 324,323 read with section 34 of the Indian Penal Code. He is instead convicted for an offence punishable under section 324 and 452 of the Indian Penal Code and is sentenced to the period of imprisonment which is already undergone. [We are informed that appellant Bansi S/o Natha Jadhav was an under trial for a period of six months and there after from the date of the judgment till today the accused is in jail and has thus undergone a sentence of more than 3-1/2 13 Cri. Appeal No.241.2007 years.] Since he is in jail he be released forthwith if not wanted in any other case. Sentence of fine remains unaltered. Appeal filed by Bharat S/o Bansi Jadhav is hereby dismissed confirming his conviction and sentence.” Sd/- Sd/- ( A.V.NIRGUDE, J.) ( P.V.HARDAS, J.) MTK. OK Authenticated Copy. (M.T.Kulkarni) P.A.to Hon’ble Judge