Apeal-414-91 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.414 OF 1991 1. Ashok Ganapati Patil, ) Aged 20 years, Occu.: Agriculture ) ) 2. Ranga @ Ramchandra Agnu Patil, ) Aged 28 years, Occu.: Agriculture ) ) 3. Sopan Ganapati Patil ) Aged 25 years, Occu.: Private Service ) ) 4. Babaso Ganapati Patil, ) Aged 33 years, Occu.: Private Service ) ) 5. Ganapati Ramchandra Patil, ) Aged 70 years, Occu.: Agriculture ) ) All residents of Gundewadi, Tal. Miraj, ) Dist. Sangli ) ... Appellants ) (Orig. Accused Nos.1 to 5) Versus The State of Maharashtra ) ... Respondent Mr. Umesh Mankapure for the Appellants. Smt. V.R. Bhosale, APP, for the Respondent­State. CORAM : V.M. KANADE & A.M. THIPSAY, JJ. RESERVED ON : 7 TH SEPTEMBER, 2011. PRONOUNCED ON : 19 TH OCTOBER, 2011. Apeal-414-91 2 Dixit JUDGMENT {PER A.M. THIPSAY, J.} : 1. This Appeal is directed against the Judgment and Order dated 30th May, 1991 passed by the 3rd Additional Sessions Judge, Sangli, in Sessions Case No.21 of 1990 convicting the Appellants, who were accused in the said case, of the offences punishable under Sections 147 IPC, 148 IPC, 302 IPC and 325 IPC read with Section 149 of the IPC. The learned Additional Sessions Judge, Sangli, sentenced the Appellants (each of them) as follows :­ (a). For the offence punishable under Section 147 of the Indian Penal Code, rigorous imprisonment for two years and a fine of Rs.200/­ with a default sentence of rigorous imprisonment for ten days; (b). For the offence punishable under Section 148 of the Indian Penal Code, rigorous imprisonment for three years and a fine of Rs.300/­ with a default sentence of rigorous imprisonment for fifteen days; Apeal-414-91 3 Dixit (c). For the offence punishable under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code, imprisonment for life. (d). For the offence punishable under Section 325 of the Indian Penal Code read with Section 149 of the Indian Penal Code, rigorous imprisonment for three years and a fine of Rs.300/­ with a default sentence of rigorous imprisonment for fifteen days. . The sentences were directed to run concurrently. 2. Being aggrieved by the said order of conviction and sentences, the Appellants have approached this Court. The Appellant Nos.1, 2, 3, 4 and 5 were the Accused Nos.1, 2, 3, 4 and 5, respectively. They shall hereinafter be referred to by the positions held by them during the trial, for the sake of convenience. Apeal-414-91 4 Dixit 3. The prosecution case before the trial Court was in brief as follows : . The Accused Nos.1, 3 and 4 are the sons of the Accused No.5 Ganapati Ramchandra Patil. Accused No.2 – Ranga @ Ramchandra Agnu Patil – is the nephew of the Accused No.5 Ganapati. The agricultural lands belonging to Shivaji Laxman Salagare (PW­9), husband of the First Informant Laxmibai Shivaji Salagare (PW­4) and those of the accused persons were situated side by side. Sahadeo ­ the deceased ­ was the son of Shivaji (PW­9) and Laxmibai (PW­4). On a day prior to the incident, some quarrel had taken place between Shivaji (PW­9) and the Accused No.1 ­ Ashok Ganapati Patil ­ over fetching of water. The Accused No.1 Ashok had assaulted Shivaji (PW­9) with a stick. Shivaji (PW­9) had told this to Sahadeo, where upon Sahadeo and Shivaji (PW­9) had gone towards the house of Accused No.1 Ashok. Sahadeo had questioned the Accused No.1 as to why he had assaulted Shivaji and had given a slap to Accused No.1 Ashok. . That, on 19th October, 1989, which was a Thursday, Sahadeo had gone to his field to water the crops. He was followed by the First Informant Laxmibai (PW­4), who had reached there with the meals for Sahadeo. The Apeal-414-91 5 Dixit wife of the Accused No.5 Ganapati and the wife of Accused No.3 Sopan removed the water pipe from the chamber, over which some quarrel took place among those women. Sahadev asked Laxmibai (PW­4) not to talk to those ladies. While Sahadeo was carrying that pipe from the chamber, all the accused came running towards him. The Accused No.5 Ganpati was armed with a sickle. The Accused No.4 Babaso was armed with a cycle chain and the other three accused were having a stick with each of them. All the accused persons started beating Sahadeo. Laxmibai (PW­4) came running towards Sahadeo. Sahadeo fell on the ground with his face upwards. Laxmibai (PW­4) fell on the person of Sahadeo to protect him from the assault, but the accused kept on beating Sahadeo. The accused also gave some blows to Laxmibai (PW­4). Sahadeo received bleeding injuries as a result of the said assault. Laxmibai (PW­4) also received injuries on her chin, both hands and feet. A fracture was caused to her hand. . On hearing the shouts of Laxmibai (PW­4), Shivaji (PW­9) came to the spot with one Kuber. The Accused Nos.1 to 5 said something to Kuber after which Kuber went away running. Shivaji (PW­9) raised cries and then the accused ran away. Shivaji (PW­9) and Laxmibai (PW­4) took Sahadeo first to Apeal-414-91 6 Dixit the S.T. Stand of Gundewadi in a bullock cart and then by S.T. Bus to Miraj. Sahadeo was not talking. With the help of Police he was brought to the General Hospital, Sangli, where, on examining him, he was declared to be dead. In the Hospital, the statement of Laxmibai (PW­4) was recorded, which was treated as the First Information Report (Exhibit­58). Crime No. 120 of 1989 was registered on that basis by PSI Manohar Anant Mane (PW­12). Inquest Panchanama (Exhibit­33) was drawn. The clothes on the body of Sahadeo were taken charge of (Articles 1, 2, 3 and 4). The clothes of Laxmibai (PW­4) were also seized under a Panchnama (Exhibit­35) in the presence of Panchas Shrirang Maruti Waghmode (PW­1) and one Bajarang. . The Accused No.5 Ganpati, Accused No.2 Ranga and Accused No.1 Ashok were arrested at 9:00 p.m. on 19th October, 1989. Their clothes, which were having blood stains, were taken charge of under different Panchnamas (Exhibits 82, 83 and 84). The Accused No.3 Sopan was arrested at 11:00 p.m. on the same day and his blood stained banian was also attached under Panchnama (Exhibit 85). . On 20th October, 1989, Spot Panchnama was drawn (Exhibit 70) and Apeal-414-91 7 Dixit certain articles were seized thereunder. . PSI Mane (PW­12) interrogated the Accused No.5 Ganpati, who in the presence of Panchas Vasant Atmaram Chavan (PW­2) and Mohammad Shaikh gave certain information, pursuant to which a sickle (Article 21) was recovered from the house of the said Accused No.5 Ganpati. The sickle was sealed and labelled. The Accused No.1 Ashok, pursuant to the interrogation made by the Investigating Officer (PW­12), gave certain information in the presence of the same Panchas, which information was recorded (portion marked as “A” in Exhibit­43), pursuant to which the said clothes were recovered from the house of the Accused No.1 Ashok. These articles were sealed and labelled. 4. On the same day, i.e. on 20th October, 1989, the Accused No.4 Babaso was arrested at about 3:30 p.m. On interrogating him, he gave certain information which was recorded in the presence of Panchas under Panchnama (Exhibit­48). Pursuant to the said information, the Accused No. 4 Babaso produced a pant and banian. A cycle chain was found in the Vijar. The cycle chain (Article 25) and clothes were taken charge of under a Apeal-414-91 8 Dixit Panchnama (Exhibit­49). . On 25th October, 1989, the sample of the blood of the accused persons was collected. The sample of the blood of the First Informant Laxmibai (PW­4) was also collected. The samples were sent to Chemical Analyzer for chemical analysis and opinion on 26th October, 1989. They were carried by Head Constable Kallappa Ramchandra Kambale (PW­11). The certificates in respect of the injury (Exhibit 61) sustained by Laxmibai (PW­4) and the report of the post­mortem examination (Exhibit 66) on the dead body of Sahadeo were obtained. On completion of investigation, a Charge­Sheet was filed. 5. The prosecution examined twelve witnesses during the trial. The defence of the accused persons during the trial was of total denial. The accused contended that they had been falsely implicated. 6. We have carefully gone through the entire evidence adduced during the trial. We have also perused the judgments delivered by the learned Additional Sessions Judge, Sangli. Apeal-414-91 9 Dixit 7. The case rests primarily on the evidence of Laxmibai (PW­4), who is the First Informant, mother of the deceased and an eye witness to the incident. The father of the deceased Shivaji (PW­9) is also an eye witness to the incident, though he, apparently, has not seen the actual assault. It would be proper to examine the evidence of these two witnesses first. 8. In her cross­examination, Laxmibai (PW­4) has stated that she knew all the accused persons as they are the residents of one and the same village and that the field of Laxmibai’s family and the field of the Accused No.5 Ganpati was adjoining one another. According to her, a day prior to the incident of assault on Sahadeo, her husband Shivaji (PW­9) was assaulted by Accused No.1 Ashok. Laxmibai (PW­4) claimed to have learnt this from her husband, who had told Sahdeo and her, about the said incident. Shivaji (PW­9) had told Laxmibai (PW­4) and Sahdeo that Accused No.1 Ashok was going to the field of Shivaji (PW­9), trampling over the crop of Hybrid Jawar. Shivaji (PW­9), therefore, asked Ashok (Accused No.1) as to why he was doing so and over that a quarrel took place. Accused No.1 Ashok hit Shivaji (PW­9) on his leg with a stick. When Shivaji (PW­9) narrated this Apeal-414-91 10 Dixit incident, Sahadeo went to the house of Accused No.1 Ashok along with Shivaji (PW­9) to question the Accused No.1 Ashok as to why he had beat Shivaji (PW­9). Sahadeo gave a slap to the Accused No.1 Ashok. 9. This evidence of Laxmibai (PW­4) gets full support and corroboration from the evidence of Shivaji (PW­9). In his evidence, he has stated that on the day prior to the incident of assault on Sahadeo, the Accused No.1 Ashok had trampled over the crops in the field of Shivaji (PW­9). That, Shivaji (PW­9) had then stopped him and asked him not to go to the crop. That, the Accused No.1 Ashok then fell Shivaji (PW­9) down in the field and gave a blow with the stick which he was holding, on the thigh of Shivaji (PW­9). That, when Shivaji (PW­9) returned, he told Sahadeo about this incident, when Sahadeo asked Shivaji (PW­9) to accompany him so that he would question the Accused No.1 Ashok as to why he had beaten an old person. That, while Shivaji (PW­9) and Sahadeo were going towards the house of Accused No.1 Ashok, they noticed him near his Vasti. Sahadeo questioned him as to why he had beaten Shivaji (PW­9) and gave a slap to the Accused No.1 Ashok. Sahadeo was then brought back home by Shivaji (PW­9). Apeal-414-91 11 Dixit 10. I have carefully considered the evidence of Laxmibai (PW­4) and Shivaji (PW­9) with respect to this incident, which had taken place a day prior to the assault on Sahadeo. I find that the evidence of both these witnesses on this point is natural and truthful. These witnesses on this point were sought to be discredited during the trial by suggesting that no complaint about Shivaji (PW­9) being assaulted by Accused No.1 Ashok was lodged with the Police. We do not find that the incident of assault by Accused No.1 Ashok or the injury thereby caused to Shivaji (PW­9) was that serious so as to lead to a doubt about its truth because it was not reported to the Police. Moreover, Sahdeo had resorted to private retribution and therefore would not feel the necessity of reporting the assault on Shivaji to Police. Shivaji (PW­9) had stated the matter to Sahadeo and Laxmibai (PW­4), which is quite natural. Again, Sahadeo became angry because his old father was beaten is also quite natural and there is absolutely no reason to disbelieve the same. Sahadeo, who, as per the own case of the accused, as appearing from the suggestion given to the witnesses in the cross­ examination, was a head strong person, would natural question the Accused No.1 Ashok with regard to the assault on Shivaji (PW­9). The evidence of Shivaji (PW­9) that Sahadeo had slapped Accused No.1 Ashok, therefore, is Apeal-414-91 12 Dixit natural, probable and there is no reason to disbelieve the same. We are, therefore, of the opinion that this incident, that had taken place on the day prior to the assault on Sahadeo, has been satisfactorily proved. 11. As regards the incident of assault on Sahadeo, the crucial evidence in that regard is of Laxmibai (PW­4) which in certain respects is supported by the evidence of Shivaji (PW­9). According to Laxmibai (PW­4), it was a Thursday and Sahadeo had gone to their field to water the crops. Laxmibai (PW­4) had followed him with meals for him. The evidence shows that Laxmibai (PW­4), Shivaji (PW­9) and Sahadeo and also the accused persons used to water the crops by fetching water of a Well belonging to one Namdeo Patil – Sarpanch of the Village. It is also seen that the Well water used to be taken with the help of a motor that had been installed. According to Laxmibai (PW­4), since the pipe that was fitted in the chamber had been removed by Yesabai – wife of Accused No.5 Ganpati and the wife of Accused No.3 Sopan – Sahadeo was unable to get water for their crops. Laxmibai (PW­4) asked the said two ladies as to why they had removed the pipe and, according to her, those women said that it was in their field and, therefore, they had removed the same. Sahadeo, at that time, came there after having Apeal-414-91 13 Dixit started the motor and he advised Laxmibai (PW­4) not to talk to those ladies. Sahadeo said that as the pipe was removed by those ladies, he would take it to Namdeo Patil and give it to him. Sahadeo had then lifted the pipe and had started going to the residence of Namdeo Patil. It is at that time all the accused persons came running towards him. Laxmibai (PW­4) has described the actual incident in sufficient details. According to her, the Accused No.5 Ganpati was having a sickle with him, while the Accused No.4 Babaso was armed with a cycle chain. The other three accused were having sticks with them. Laxmibai (PW­4) has stated that all the five accused came running from the side of their houses. As Laxmibai (PW­4) saw them going towards Sahadeo, she apprehended that they might beat him and hence started running towards him. All the accused persons beat Sahadeo. Sahadeo fell down on the ground in a supine condition. By this time, Laxmibai (PW­4) had come closer and she threw herself on the body of Sahadeo so as to protect him from the blows. However, the accused persons continued giving blows to Sahadeo on those parts of the body of Sahadeo that remained exposed. The accused also gave blows to Laxmibai (PW­4) with the weapons, which they were holding. Laxmibai (PW­4) has further stated that Sahadeo received bleeding injuries all over his person right from Apeal-414-91 14 Dixit the head to left leg. Laxmibai (PW­4) herself sustained injury on her chin, hands and feet. She also started bleeding from the injuries sustained by her. Laxmibai (PW­4) was continuously shouting when this beating was going on and on hearing the same one Kuber and Shivaji (PW­9) came there. Kuber was questioned by the accused persons as to why he had been to the spot and on their asking him to go away, Kuber ran away. Shivaji (PW­9) also started raising cries and, thereafter, all the accused ran away from the spot. 12. Laxmibai (PW­4) has narrated the happenings that took place after the assault. She stated that Shivaji (PW­9) brought a bullock cart from Namdeo Patil, Sahdeo was placed in the bullock cart and taken to the S.T. Stand of Gundewadi. By the S.T. Bus, Laxmibai (PW­4) and Shivaji (PW­9) took Sahadeo to Miraj and, with the help of a Police Constable at the Miraj Police Station, Sahade was taken to the Sangli General Hospital. The Doctor at the Sangli General Hospital examined Sahadeo and declared him to be dead. Laxmibai (PW­4) then lodged a report with the Police, which was recorded in the hospital itself. The same has been treated as the First Information Report (Exhibit­58). Apeal-414-91 15 Dixit 13. Laxmibai (PW­4) was subjected to lengthy and searching cross­ examination. However, nothing which would discredit her version could be elicited by the defence from her cross­examination. 14. Laxmibai (PW­4) herself was injured in the incident. She was examined by Dr. Harischandra Shivaji Patil (PW­5), who noticed the following injuries on her person : (i). Small C.L.W. with swelling on left leg mid 1/3 anterior aspect, size ½ cm. x ¼ cm.; (ii). Small C.L.W. on lt leg lower 1/3 anterior aspect ½ cm. x 1/4th cm. in size contused Lascerated Wound; (iii). C.L.W. on inner aspect of lower lip through and through size 1½ x ¼ cm.; (iv). Swelling of left dorsom of left hand, query fracture of third metacarpel; (v). Query fracture of right radius ulna mid 1/3; (vi). Abrasion on right leg mid 1/3 – 2 cm. in size; Apeal-414-91 16 Dixit (vii). Abrasion on right leg near to injury No.6 size 1 cm. 15. The evidence of Dr. Patil (PW­5) shows that Laxmibai (PW­4) was referred to the Orthopedic Department, where her x­ray was taken. The x­ ray and the report from the Radiologist showed that Laxmibai (PW­4) had sustained a fracture of lower 1/3 of radius of the right side and a fracture of tibia fibula on the left side. The Doctor (PW­5) has opined that the injuries had been caused due to hard and blunt substance and has opined the age thereof to be about six hours. The examination of Laxmibai (PW­4) was carried out on 19th October, 1989 itself at about 3:35 p.m., whereas the incident of assault had allegedly taken place at about 11:00 a.m. Even this Doctor (PW­5) was subjected to searching cross­examination, but nothing which would help the defence in some manner could be elicited from the cross­examination. Thus, Laxmibai’s (PW­4) evidence that she was beaten and assaulted, which is even otherwise consistent and reliable, is fully corroborated by the medical evidence. 16. In his evidence about the actual incident, Shivaji (PW­9) stated that Sahadeo had gone to the field for watering the crops and that Laxmibai Apeal-414-91 17 Dixit (PW­4) had followed him shortly with the meals. That, Shivaji (PW­9) went to the field at about 11:00 a.m.. While he was collecting some fodder, he heard cries from the side of hillock and started running in that direction. He claims to have seen all the accused beating Sahade and also that Laxmibai (PW­4) had been lying over the body of Sahadeo. Shivaji (PW­9) has stated about the weapons possessed by the accused persons i.e. Accused No.5 Ganpati was having a sickle, Accused No.2 Ranga, Accused No.3 Sopan and Accused No.1 Ashok were having sticks with them and Accused No.4 Babaso was having a cycle chain in his hand. His version as to what happened after the incident is also the same as that of Laxmibai (PW­4). In the cross­ examination, he has admitted that the accused persons left the place before he could see as to what had happened and before he reached near Sahadeo. However, he clearly stated that he had seen the Accused Nos.1 to 5 running away from the spot towards their houses. In somewhat lengthy cross­ examination of this witness, it was suggested to him that he was telling lies regarding having brought a bullock cart of Namdeo Patil and carried Sahadeo to the S.T. Stand of Gundewadi. It was also suggested that on the day of incident, he had not gone to the field at all; that he was attempted to be discredited with respect to the incident of he being beaten by the Apeal-414-91 18 Dixit Accused No.1 Ashok and Accused No.1 Ashok, therefore, having been slapped by Sahadeo on the basis that he had not made any report to the Police regarding the assault on him by the Accused No.1 Ashok on the previous day. We do not find any substance in any such suggestions, which have been denied by this witness. 17. Dr. Gulabsingh Ramsingh Rajput (PW­6) ­ Medical Officer attached to Civil Hospital, Sangli ­ who performed the post­mortem examination on the dead body of Sahadeo has opined the cause of death as shock due to subdural haematoma with cerebral haemorhage with rupture of left lung lower lobe. Dr. Rajput (PW­6) has stated that he found the following injuries on the dead body of Sahadeo :­ (i). Incised wound 4 x 1 x1 cm bone deep clotted blood. (ii). Abrasion with Red scab over maxillary region on right side and blow lip.\ (iii). Multiple abrasion on left fore head with red scab. (iv). Abrasion with red scab over top of nose 1 x1 cm. (v). Multiple superficial abrasion over anterior aspect of both lower extremities, linerar and with red scab formation, Apeal-414-91 19 Dixit no evidence of any fracture of bone. (vi). Incised wound over left tibeal region upper 1/3 rd. 3x2x1 cm. Bleeding and bone deep. (vii). Right front partietal-Incised wound 10 X 3 X 2 cms bone deep, no active bleeding, no fracture of skull bones,clotted blood present. (viii). Midparietal region, incised wound 10 X 3 X 2 ½ cms bone deep, no active bleeding, clotted blood, no fracture palpable. (ix). Over nape of neck-3 horizontal abrasional linear over region of neck 6 X ¾ cm. with reddish blue colouration. (x). Right midaxillary region, horizontal linear contusion with swelling blue colouration, over region 9 X 2 cms. (xi). Over externsor aspect of left upper limb, forarm region, multiple superficial linear abrasion with red scap formation, extending from elbow to dorsum of hand with swelling. No fracture detected. (xii). Base of left little finger to palm regiion horizontal incised wound 1 X ¾ cms with clotted blood. (xiii). Left index finger deformity, with crepitus for proximal phalenx, fracture was present. (ixv). Extentor aspect of right upper limb punctured wound Apeal-414-91 20 Dixit 1 x ½ x 1 cms, bleeding present, bone deep. (xv). Over right upper limb multiple superficial-linear abrasion with red scab formation extending elbow to wrist joint with swelling. No fracture detcted. (xvi). Left thigh posteror aspect of mid thigh, abrasion with red scab over region of 5 X 1 cms. (xvii).Right infrascapular region, horizontal abrasion with contusion over region of 5 X 2 cms. 18. Dr. Rajput (PW­6) has opined that the injuries were ante­mortem. According to him, the injuries at Sr. Nos.5 and 11 could be caused by a cycle chain and, that, the injuries at Sr. Nos.1, 6, 7, 8, 12 and 14 could be caused by a sharp and hard object. He has opined that the injuries taken together were sufficient in the ordinary course of nature to cause death. He was shown the sickle (Article 21) and the cycle chain (Article 25). He opined that certain injuries noted by him could be caused by these weapons. This witness was extensively cross­examined, but there is nothing in the cross­ examination which would shake his evidence. 19. Thus, the evidence of Laxmibai (PW­4) and Shivaji (PW­9) which Apeal-414-91 21 Dixit appears to be trustworthy and reliable and which corroborates the evidence of each other is further corroborated by the medical evidence. The number and type of injuries sustained by Sahadeo is in consonance with the details of assault as