1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.440 OF 2006 1. Shivram @ Barkya Rama Patil Age : 25 years R/o.Wakalon, Taluka & District Thane ..Appellants 2. Jagadish Dnyaneshwar Patil Age : 18 years R/o.Wakalon, Taluka & District Thane (At present lodged in Central Prison, Kolhapur) V/s. The State of Maharashtra ..Respondent At the instance of Kalamboli Police Station, Taluka Panvel District Raigad Mr.P.L.Sapkale, Advocate, for the appellants Ms.A.A.Mane, A.P.P, for the State CORAM : K.U.CHANDIWAL, J. DATE : 12TH AUGUST, 2008 ORAL JUDGMENT . The appellants were charged and tried for the offence punishable under Section 307 read with 34 of the Indian Penal Code. The learned Sessions Judge, Raigad by his Judgment dated 31st March, 2006 in Sessions Case No.60 of 2005 convicted them and 2 sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.1000/- in default of which they have to undergo R.I for one month. 2. The facts in this case project dilution of blood between two brothers and a nephew, there upon younger brother took re-course to brutally attacking his elder brother over property dispute. On 16th September, 2004 Chandrakant Rama Patil was proceeding to attend his job. Accused No.1 Shivram @ Barkya Rama Patil who is younger brother had grudge against Chandrakant Patil as Chandrakant Patil was trying to sermon later to behave properly. In this context, due to mental agony nourished said Shivram along with his nephew accused No.2 Jagdish stopped Chandrakant on the way and with intention to commit murder, inflicted bleeding blows with chopper and Sword at his head and even at his hand. After the assault both accused made escape on their motor cycle. The security guards at the gate of the industrial unit having heard the commotion shifted the unconscious 3 injured to hospital where wife of Chandrakant rushed, police were called and F.I.R of P.W.1 Shobha Chandrakant Patil vide Exh.31 came to be recorded on 16th September, 2004. It was only on 23rd September, 2004 the Medical Officer informed the investigator about the injured Chandrakant to be in a position to make a statement, and then P.W.7 Shivaji Laxman Sawant, PSI could record such statement. 3. Spot Panchanama(Exh.37) was drawn. However, nothing incriminating could be collected as due to rains blood stains washed away. A search for the accused was done. Accused No.1 Shivram and accused No.2 Jagadish were put under arrest on 17th October, 2004. On 19th October, 2004 at the instance of accused No.2 Jagadish, in presence of panch witness P.W.4 Nandkumar, recovery of sword, shirt and full shirt was taken charge, from cattle shed situate by the side of house of Dnyaneshwar Rama Patil. On 24th October, 2004 at the instance of accused No.1 while he was in custody, under the panchanama (Exh.36) witnessed by P.W.4 Nandkumar, full pant, 4 shirt and a chopper (Article 7) was taken charge. C.A.Reports were tendered in the Court. Charge Sheet against accused was submitted on 12th January, 2005. Case was committed to the Sessions Court. 4. There is no dispute about the identity of the witnesses and accused. All are inter se related to each other, except Medical Officer and investigating officer. The learned Sessions Judge explained charge to the accused in vernacular, to which they pleaded not guilty to the same, and claimed to be tried. Their defence is of false implication. 5. P.W.2 Hindurao Ganpatrao Salunke is working with injured Chandrakant in same Company. At around 9.00 a.m somebody informed him that a person from his Company is assaulted near the Pidilite Company, he rushed and saw that it was Chandrakant, lying in pool of blood having injury at his hand and head. The injured was shifted with the assistance of one Anthony D'souza, to MGM Hospital at Kamothe. P.W.3 Chandrakant Rama Patil is the 5 injured victim. P.W.4 Nandkumar Sakharam Patil is brother-in-law of accused No.1 and also injured- Chandrakant Patil, witnessed the Panchanamas dated 19th October, 2004 and 24th October, 2004, relating to recovery at the instance of both the accused. P.W.5 Dr. Vinod Ranveer Vij attached to Mahatma Gandhi Missions New Bombay Hospital, Vashi as a Plastic Surgeon. On 16th September, 2004, injured was brought to the hospital as referred by MGM Hospital, Kalamboli. The injured was under shock, bleeding profusely from both the hands scalp, he was gasping and therefore, looking to his condition he was admitted in ICU and put on ventilatior. P.W.5 noticed right hand of injured was hanging, due to assault it was implcit for amputation and accordingly, his right hand was amputated. Similarly, index finger of his left hand was found mutilated and therefore, it was also amputated. There were other multiple incised wounds which were stitched by, P.W.5. The nature of the injuries he had noticed on the injured were in ordinary course of nature, sufficient to cause death which could have been caused by sharp object like Sword 6 (Article 4) or Chopper (Article 7). P.W.6 Dr.Rahul Babanrao Tekade had examined Injured Chandrakant at 8.55 a.m while attached to MGM Hospital, Kamothe and had recorded following injuries. (A) Multiple incised wound to right fore-arm and finger with detached thumb. Periferial circulation of blood was absent. There was incised wound to right upper arm also. I had also noticed incised wound with fracture ulna of right hand. His right hand was hanging. (B) Multiple incised wound over the left dorsal aspect and dorsal exposed extending to 1/3rd fore-arm left ring finger deteched. Distal phaynx of ring finger found missing and blood supply was found absent. (C) Multiple contused lacerated wound 2cm x 3cm over fronto parietal temporal region. Multiple contused lacerated wound 3 x 2 x 1 cm over occipital region and there was corresponding palpable fracture over these wounds also contused lacerated wound over left fronto paritoccipital region. All the injuries were fresh and bleeding and could be possible by sharp weapon like Sword (Article 4) and Chopper (Article 7). P.W.6 recorded history given by the injured, that he was assaulted at 8.30 a.m. near M.I.D.C.Company, Highway by his brother Shivram and nephew Jagdish, which was accordingly recorded by P.W.6 in case history and in the Medico 7 Legal register, and in Injury Certificate (Exh.44). P.W.7 Shivaji Laxman Sawant carried investigation. 6. The defence counsel canvassed that the accused are falsely implicated over a property dispute. P.W.4 is an interested witness being in close relations. There is variance in the evidence of P.W.2 Hindurao about noticing Chandrakant Patil at 9.00 a.m and P.W.6 Dr.Rahul claiming to have examined injured at 8.55 a.m. Two crucial witnesses Mr.Gangaprasad Shukla and Mr.Devendra Pathak are not examined. The accused had no motor cycle nor they had any experience of plying motor cycle. The seized items were neither sealed nor labelled properly. 7. The injuries to the Injured Chandrakant Patil referred by P.W.5 and P.W.6 demonstrate barbaric attack by the assailant who had a determination to eliminate injured, it was the injured Chandrakant tried to resist the head assault, a blow with the Sword and Chopper was such grave, it turned its impact of amputating, left 8 hand ring finger and even middle incised wound 1/3 cm x 4 cm. The nature of injury at the scalf was to the extent of 2cm x 3cm x 3cm. It was multiple contused lacerated wound on the occipital region and there was corresponding palpable fracture over these wounds also contused lacerated wound over left fronto paritoccipital region. The injuries referred by P.W.5 and P.W.6 were grievous in nature and could have been caused due to the use of the Sword (Article 4) and Chopper (Article 7). The gravity, is further projected from the evidence of P.W.7 Shivaji Sawant, PSI who had tendered the letters addressed by him to the Medical Officer at Exh.48 to 51 however, the injured Chandrakant not in proper mental status till 23rd September, 2004. 8. User of Sword and Chopper which are definitely dangerous weapons and the manner in which such offence was committed on 16th September, 2004 at 8.30 to 8.50 a.m, unequivocally demonstrate to be murderous assault on the injured Chandrakant Patil. Section 307 contemplates that the act attempted to assault must be such that if not 9 prevented or intercepted, it would be sufficient to cause death of the victim. It is well settled, to constitute the offence no injury need be caused to the victim. The intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the victim would be killed. The evidence of Chandrakant illustrates that when he came across the accused, accused assaulted him. The assault by accused No.2 with Sword was such that it inflicted head injury to Chandrakant Patil. It is most shocking that accused No.2 Jagadish Patil at such time commented that his father Dnyaneshwar had deputed them to eliminate Chandrakant Patil. A blow of Chopper given by accused No.1 Shivram was at the head of the injured and when he was trying to give another blow at that time the complainant raised his hands to save himself which had its impact on his right hand near wrist including his left hand finger. After the assault both the accused sneaked away. P.W.2 Hindurao removed the injured to the hospital. 10 9. I am conscious that P.W.3 Chandrakant injured is an interested witness. His wife is also an interested witness. However, on close scrutiny of their evidence from all the angles I find that there is no improvement or embellishment of the facts in narrating the events in the version of P.W.3 Chandrakant. He gave accurate account as to what transpired at the material time. The reason for the assault is, to be a deposit of Rs.1,20,000/- for marriage of Shivram and resistence of P.W.3 to release the said amount, though, not reflecting in the F.I.R of P.W.1 Shobha, it will not be changing colour and complexion of the matter as the fact of deposit or demand of Rs.1,20,000/- was in the exclusive knowledge of the injured Chandrakant and he could not pass on the same to P.W.1 Shobha, his wife at the material time. He should not ignore, that accused No.1 Shivram is real younger brother of P.W.3 Chandrakant. The deposit of Rs.1,20,000/- by way of Fixed Deposit for his marriage also leads to an inference that the family was more keen in his 11 well being than allowing him to move astray. Issuing sermon to behave properly by P.W.3 Chandrakant to accused No.1 Shivram, was the only probability being elder brother and indeed had such authority to do so. However, such feelings were not taken in right spirit and sense by accused No.1 Shivram Patil who was more influenced and interested in spending than waiting for terms to come true to settle his marriage. 10. The role of accused No.2 Jagadish is co- ordinated as his father was residing separate from other members of the family and accused No.1 was residing with him, both the brothers had grudge over the property. He was also keen in encashing his cross terms with injured Chandrakant and used his son Jagadish as leverage to get rid of Chandrakant. Mens rea of the accused Nos.1 and 2 in the assault is clearly established. The narration of P.W.3 cannot be doubted of any mechanical identity or any false implication. It can remotely be stated that P.W.3 had falsely roped accused. P.W.3's first reaction to P.W.6 Medical 12 Officer, narrating his brother and nephew to be assaulter cannot be ignored. 11. Then comes arrest of the accused on 17th October, 2004. There is no explanation offered by the accused as to where they were roaming from 16th September, 2004 though, Chandrakant was injured and admitted in the hospital till 4th October, 2004. Their normal behaviour is referred in the F.I.R, had they any gumption, then, they could have showed their ignorance by their appearance before the investigator immediately after F.I.R, but no such exercise is put forward by the arrested accused. 12. It was after arrest on 17th October, 2004, since accused No.2 Jagadish desired to make a statement, services of P.W.4 Nandkumar were solicitated and in presence of his own relative accused No.2 Jagadish made disclosure statement and led police party and panch witnesses to cattle shed located near his house from where Sword and Chopper were taken charge under Panchanama (Exh.35). The evidence of P.W.4 Nandkumar cannot be castigated 13 since he is a common relation to either accused or the injured. It is not brought in the cross examination that he had any grudge against the accused and that he had falsely implicated them. It is a fact that panch Ashok is also relative of Chandrakant. In the cross examination P.W.4 Nandkumar had stated that the articles which were produced by accused No.2 Jagadish Patil were kept on the Northen side of cattle shed and that he had no idea as to whose house was situated to the East of the said cattle shed. It is worthy to note here that it was exclusive knowledge of accused No.2 where the incriminating articles or the goods were concealed and hence, he led police party and panch to the said cattle shed. The said cattle shed cannot be described to be an open space or a place accessible to public. Thus, recovery of the incriminating articles at the instance of the accused No.2 is established. 13. By using same panch witnesses, on 24th October, 2004 at the instance of accused No.1 Shivram, police party went with accused No.1 he led 14 them to the house of his brother where he was residing and removed articles. It is curious that P.W.4 has clarified that on the respective occasions the incriminating articles which were recovered at the instance of the accused Nos.1 and 2 were concealed and removed by the respective accused persons. 14. It was claimed that the articles were not properly packed. However, Panchanamas at Exh.35 and Exh.36 coupled with evidence of P.W.4 and P.W.7, I find such submission is without any merit. These articles were sent to the office of C.A on 5th January, 2005, in a sealed condition as is referred even by the receiver from the office of C.A. 15. C.A.Report (Exh.27) relates to Full open shirt (cut), full pant and Handkerchief belonging to the complainant, full bush shirt at the instance of accused No.2, full bush shirt (C-1) Sura (C-2) at the instance of accused No.1 Shivram. The result of the analysis is, all the above items were soaked with blood. The Sword had blood stains. 15 Full bush shirt (C-1) had few blood stains ranging from 0.1cm to 1 cm. diameter on front. Blade of Chopper was found to be stained with blood. However, on the full bush shirt (B-1) of accused No.2 no blood was detected. The blood group on the articles was with species of human and blood group was 'B'. At Exh.28 is the report of blood group concerning P.W.3 injured to be of 'B' group while at Exh.29 blood group of the accused Nos.1 and 2 is referred. On analysis it was found inconclusive. The learned Sessions Judge had specifically put question No.13 to both the accused to seek their explanation about C.A.Report concerning Sword and Chopper with apparels. However, the accused showed their ignorance. They did not offer any explanation. 16. The defence advocate urged that the accused neither had motor cycle nor they knew plying thereof. However, there is no such positive case put up by the accused to any witness to accept their version. 16 17. The non-examination of the two security guards of the Pidilite Company is properly explained by P.W.7 as watchmen were not available as their whereabouts are not known though, their statements were recorded. 18. Taking re-appreciation of the evidence, I find that there is no error in the Judgment of conviction recorded by the learned Sessions Judge, Raigad. Appeal is dismissed. (K.U.CHANDIWAL, J.)