- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.292 OF 1989 Putlabai Bhimashankar Pattan,age 50 years, R/p Plot No.34/3 21 (B) New Pachha Peth, Solapur ... Appellant (Orig.Accd no.4) vs The State of Maharashtra ... Respondent ALONGWITH CRIMINAL APPEAL NO.380 OF 1989 1.Dhondappa Bhimashankar Pattan, age 25 years,residing at Plot No.34/3/21 (B New Pachha Peth,’ Solapur. 2.Kallappa Bhimashankar Pattan, age 22 years, residing at Plot no. 34/3/21(B) New Pachha Peth,Solapur 3. Dariappa Shantappa Hattarsang,age 20 years,residing at Mangrul Taluka Akkalkot, District Solapur (Appeal abated as per court’s order dt.22.3.2007 and 8.4.2010 against Appellant nos. 1 and 2) .. Appellants Orig.Accd nos.1 to 3) vs State of Maharashtra .. Respondent .. Mr.B.G.Tangsali Advocate appointed for Appellant in Appeal No.292.1989 - 2 - Mr.B.G.Tangsali and Ms Suvarna A.V.i.b Mr.V.V.Purvant for Appellant in Appeal No.389/1989 Ms.P.P.Shinde A.P.P.for Respondent-State Cri.Application No.595/2010 does not survive CORAM: B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ DATE: 4th May,2010 ORAL JUDGMENT (Per B.H.Marlapalle, J) 1. Four accused came to be tried for the offences punishable under sections 302, 326,325, 324.and 323 each read with section 34 of the Indian Penal Code (IPC for short) and section 135 read with section 37 (1) of Bombay Police Act. By his judgment and order dated 12th April,1989 the learned IInd Additional Sessions Judge, Solapur was pleased to convict all the four accused for the offences punishable under section 302,326, 324, and 323 each read with section34 of the Indian penal code whereas accused nos. 1 to 3 came to be convicted for the offences punishable under section 135 read with section 37 (1) of the Bombay Police Act and accused no. 4 came to be acquitted from the said charges. 2. Being aggrieved by the said order of conviction and sentence accused nos 1 to 3 filed Criminal Appeal No.380 of 1989 whereas accused no. 4 filed - 3 - Criminal Appeal No.292 of 1989 and during the pendency of these appeals, accused nos. 1 and 2 died and therefore, these appeals survive for accused nos. 3 and 4. 3. As per the prosecution case, accused nos. 1 and 2 were sons of accused no.4 and accused no.3 is the son of the sister of accused no.4. The house of accused No.4 in New Pachha Peth, Ashok Chowk,Solapur was located opposite the house of the complainant Chanappa Kumbhar and there was some dispute between the two families on account of drain water. Accused no.3 had come to visit his aunt at Solapur though he was originally the resident of village Mangrul in Akkalkot taluka of Solapur district. On the date of the incident i.e. 3rd July, 1988 at about 5.30 a.m. the complainant shouted at his buffalo which was tied in front of his house and he used abusive language while doing so. The members of the family of the accused were awake at that time and accused no.4 heard the words used by the complainant and she presumed that he had abused her. She therefore got angry and came out of her house alongwith other accused to question the complainant who gave the explanation that he abused his buffalo and not - 4 - accused no.4. However, this explanation did not appeal the accused and accused nos. 1 to 3 who were armed with knives and iron bars started assaulting the complainant. When he sustained bleedings injuries in the assault, Vithal the younger son of the complainant who was nearby and was loading manure in the bullock cart tried to intervene so as to save his father from further attacks and in this process Vithal was assaulted by accused nos. 1 to 3 with knives and iron bars. He sustained multiple stab injuries on his chest and grievous injuries on his forehead and hand etc. He collapsed and at that stage, Siddharam the elder son of the complainant tried to intervene but he also received blows from the accused. In the process, he was alleged to have hit a glass bottle to one of the accused i.e. accused no.2 Kallappa and Siddharam also received bleeding injuries. After Vithal collapsed the accused no.1 Dhondappa dropped the iron bar on the road and which was picked up by accused no.4 who also assaulted Vithal. Accused no.3 fled from the place and went towards the MIDC side. However, when some neighbours had alerted the police and police van reached the spot. Accused no.1,2 and 4 were taken in the police van. Accused No.1 filed the - 5 - complaint which was registered as a FIR in C.R.No...... giving rise to Sessions Case No.7 of 1989 which had ultimately resulted in an acquittal. 4. Vithal was found dead on the spot and therefore the police recorded the inquest panchanama and spot panchanama. The accused nos.1,2 and 4 as well as the injured witnesses along with the complainant were sent for medical examination to the Civil Hospital, at Solapur. The complainant was hospitalised along with Siddharam and so was accused no.2 Kallappa. Accused no.1 and 4 were shown arrested on 3rd July,1988 whereas accused no. 2 was shown arrested only on 16.7.1988 after he was discharged from the hospital. Accused no.3 was claimed to be absconding and came to be arrested on 6.7.1988. The dead body of Vithal was sent for post mortem which was conducted by PW 3 Dr.Laxmikant Bade who signed the post mortem notes at Exhibit 31. 5. The investigation was taken over by PW 21 PSI Appa Patil. PW 19 Sunil Valambe had recorded the dying declaration of Siddharam at Exhibit 33. While under arrest accused nos. 2 and 3 made a statement which was recorded as memorandum and two knives, - 6 - article nos. 22 and 23 came to be discovered and both were strained with blood. The clothes from the person of the deceased as well as from the person of all the accused were seized and all the articles were sent for chemical analysis by PW 20 Appa Patil. The C.A.reports at Exhibit nos. 76 to 85 were received. The Investigating Officer during the process of investigation recorded the statements of various witnesses including the eye-witnesses and on completion of the same submitted the charge sheet. The offences being exclusively triable by the Sessions Court the case was committed and the charge was framed on 13th December, 1988. 6. Before the trial court, the prosecution examined in all 21 witnesses and the defence did not examine any one. Though in the statement recorded under section 313 of the Code of Criminal Procedure the accused no.1 had denied their involvement and claimed that they were falsely implicated, during the course of the trial as well as while defending the case the accused sought to take the benefit of self-defence. - 7 - 7. It was the case of the defence that the deceased Vithal had initiated some arguments at about 5.30 a.m. and he had a spade in his hand. When accused nos. 1 and 2 questioned him, he was alleged to have assaulted accused no.1 and in that process by way of defence, accused no.2 assaulted the deceased. It was further contended that the complainant and his son Siddharam were more aggressive thereby creating a life threat to the accused party and consequently all the accused retaliated to save themselves. The learned trial Judge has discarded this theory of self-defence. 8. As per the prosecution, PW 8 Chanapa Kumbhar PW 10 Siddharam Kumbhar, PW 11 Nivrutti Yernagi (a neighbour) and PW 12 Mallappa Kumbar, wife of Chanappa were the eye-witnesses to the incident. PW 2 Dr.Siddram Kore, PW 3 Dr.Laxmikant Bade, PW 5 Dr.Prabha Shinde and PW 9 Dr.P.G.Ghatole were the doctors examined. PW 1 Purshottam Kulkarni was the government surveyor and had drawn the sketch plan at Exhibit 23 of the spot of incident. PW 4 Gurumurti Hiremath, PW 6 Chandrakant Munjale, PW 7 Tukaram Magan, were the panch witnesses. PW 13 Ramchandra - 8 - Patil, PW 14 Yeshwant Mane, PW 16 Baburao Gondhali, PW 18 Ramesh Bandapatte, PW 19 Sunil Valambe, PW 20 Appa Patil were the police personnel whereas PW 17 Dnyaneshwar Bachal was a clerk from the office of Collector and PW 19 Sunil Valambe was a police official and SEM PW 21 Hirameth had recorded the dying declaration. 9. As per the Sessions Court, the charge against all the accused for the offences punishable under section 302 read with section 34 of the IPC was proved for causing homicidal death of Vithal, the charge under section 326 read with section 34 of IPC was proved for causing grievous hurt to the complainant, charge under section 324 read with section 34 was proved for causing hurt to Siddharam and charge under section 323 read with section 324 was proved for causing simple hurt to Mallabai and Shantabai. In addition accused nos. 1 to 3 were found to be guilty for the offences punishable under section 135 read with section 37 (1) of the Bombay Police Act. 10. As per PW 3 Dr.Laxmikant Bade the dead body of Vithal S/O Chanappa Kumbhar was received at the - 9 - Civil Hospital, Solapur on 3rd June,1988 and he conducted the post mortem examination between 11.50 a.m. to 1.15 p.m. on the same day. The deceased was about 22 years of age and on examination of the dead body, the Medical Officer found the following external injuries: 1. Incised wound 3” below left cubital fossa, flexor surface measuring 3/4” x 1/2” x bone deep. 2. Incised wound middle, posterior side, left forehand verticle direction measuring 1” x 1/2” x 3/4”. 3. Incised wound 10” above coccyz in mid line measuring 4” x 1`/2” bone deep. 4. Stab injury perforating 4” above lateral epicondyle, right arm outer side through and through measuring 1” x 1/2 “ opening on medial side. Exit wound measuring 3/4” x 1/2” margins and angles clean cut. 5. Stab injury perforating, 3% below right shoulder joint and 2” above injury at S.No.4 measuring 1” x 1/2”through and through opening on medial side 1” below pit of axilla measuring 1/2” x 1/4” margins and angles clean cut. 6. Stab injury 2” right lateral to xihold, transferse in direction measuring 1”x 1/2” opening inside the heart margins and angles clean cut. - 10 - 7. Incised wound 4” below right nipple and 6 right lateral to mid line measuring 1/2” x 1/3” skin deep. 8. Lacerated wound 6” above right ear on top of head parallel to saggital suture measuring 2” x 1/2” bone deep at places margins incised. 9. Lacerated wound 5” above left ear parallel toin 8 measuring 1 x 1/2”x 1/2” bone deep at places margins incised. All these injuries were ante mortem and recent. On internal injuries the doctor noticed the following corresponding injuries (corresponding injury no.6). 1. Clean cut fracture of 5th rib 1/2” lateral to sternum on right side 2. Incised wound on right side of pericardiau measuring 3/4” x 1/4” and also observed 50 ccs of blood in pericadial cavity 3. Stab injury on right ventricle measuring 3/4” x 1/4”. 11. As per the doctor, the cause of death was shock as a result of the stab injuries and all the injuries were ante-mortem sufficient in the ordinary course of nature to cause death. He stated that the - 11 - external injury no.6 with its corresponding internal injury was independently sufficient to cause death in the ordinary course of nature and rest of the injuries cumulatively were likely to cause death in the ordinary course of nature and further clarified that injury no.6 was capable of causing instantaneous death. He also stated that the stab wounds and incised wounds found on the dead body were possible with knives articles 22 and 23 shown to him in the court. He had issued injury certificate regarding the cause of death at Exhibit 31 and the post mortem report at Exhibit No.32. He also clarified that injury nos. 8 and 9 found on the dead body were possible with an iron pipe article no.3. There was no cross examination of this witness and the medical evidence of this witness proved beyond doubt that Vithal the younger son of the complainant died a homicidal death due to multiple stab injuries he had sustained in the morning of 3rd July, 1988 in front of his house. 12. PW 2 Dr.Siddramappa Kore was another Medical Officer working in the Civil Hospital, at Solapur and was on duty on 3rd July, 1988 as the Casualty - 12 - Medical Officer. PW 8 Chanappa Kumbhar, PW 10 Siddram Kumbar and accused no.4 Putlabai were examined by him at the instance of the police on 3rd July, 1988. He further stated that the complainant Chanappa was brought to the hospital by PW 11 Nivrutti Yernagi. On examination of Chanappa he had noticed the following injuries on his person : 1. Stab wound 3 cm x 1 cm cart deep on left hy region 2. CLW 4 cm x 1 cm scalp deep on parietal region. Injury no.1 could have been caused by hard and sharp object within 24 hours. Whereas injury no.2 could have been caused by a hard and blunt object within the same time. He further stated that Chanapa was referred to the x-ray department and fracture of right rib was detected. He was therefore, hospitalised and came to be discharged on 25th July, 1988. He stated that fracture on right rib was possible with a blow of a pipe article no.3. He confirmed that he issued medical certificate at Exhibit 25 and also stated that the stab wound on left parietal region was possible with a knife- - 13 - article 23. The complainant was operated by Dr.Ghatole PW 9 along with Dr.M.D.Bhosale and Dr.M.S.Patil. He further stated that Siddhram was examined by him at about 6 a.m. on 3rd July, 1988 and following three injuries were noticed on his person: 1. Stab wound 3 cm x 2 cm parietal after left side of chest. 2. Stab wound 4 cm x 1 cm cavity deep on 8th rib region mid auxilliary. 3. C.L.W. 2 cm x 2 cm muscle deep on right web’s space. The doctor stated that all these injuries were simple in nature and could have been caused within 24 hours. Injury no. 23 could have been caused by a hard and blunt object and stab injuries could be caused by a sharp object like knife articles 22 and 23. C.L.W. was also possible with blow of iron pipe article no.3. Stab wound was sutured by Dr.Kale and Dr.Gandhi and Siddhram was discharged on 11th July, 1988. - 14 - Accused no.4 Putlabai was brought at about 7 a.m. on 3rd July,1988 and the doctor had noticed the following injuries on her person: 1. Abrasion 2 cm x 2 cm on right knee 2. Contusion 2 cm and 2 cm on base of right thumb 3. Tenderness 5 cm x 5 cm on right gentle region. The doctor opined that all the injuries were possible within 24 hours and cold have been possible by a hard and blunt object. He issued the medical certificate at Exhibit 29. He also stated that all these injuries were possible by a fall as well. In his cross examination he stated that the person who had accompanied accused no.4 had given history of assault on 3rd July,1988 at 5 a.m. But, he did not remember that history was given by the patient himself. He also clarified that the patient was conscious when she was examined by him. 13. PW 5 Dr.Prabha Shinde was also one of the Medical Officers at the Civil Hospital, Solapur since 21.10.1987. She stated before the trial court that on 3.7.1988 at about 7 a.m.,he had examined Kallapa accused no.2 who was referred to her by Jail - 15 - Road police station and on his examination she found the following injuries : 1. C.L.W. 42” x 6 “ muscle dendons exposed left elbow cubital fossa. 2. Contusion 3 “ x 3” right hand 3. Abrasion 1 x x 1 cm left axilla 4. Abrasion 3 cm x 3 cm Lt forearm middle 5.Incised wound 1” x 1 1/2” above left iliac chest 6. Avulsion of nail 2nd toi 7. Abrasion 2 cm x 2 cm left foot med. 14. As per the doctor, all the injuries were within less than six hours and caused by article no.5 and other injuries could have been caused by a hard and blunt object. The original medical certificate at Exhibit 13 was issued and produced in Sessions case no.7 of 1989 and it was in her hand writing and signed by her. She also stated that at 7 a.m.,he examined accused no.1-Dhondappa and noted the following injuries on him: 1. C.L.W. 1 1/2” x 1/4” base of left middle finger palm aspect. 2. C.L.W. 1 1/2” x 1/4” left palm below index finger 3. C.L.W. 1” x 1/4” left foot below great foe - 16 - 4. Contused 1/2” x 1/2” right upper arm m/r 5. Contusion 1” x 1” left upper arm m/r 6. Abrasion on 1/2” x 1/2” over above contusion She reiterated that these injuries could have been possible within six hours before examination. It was noticed that a fracture of bases of 4th,5th, 2nd metacarpals left side was detected. The original medical certificate was submitted in Sessions Case No.7 of 1989. This doctor had also examined PW 12 Mallawa Kumbhar wife of the complainant on 3rd July,1988 at 11 a.m. and she noticed the following injuries : 1) Contusion 3 cm x 3 cm left forearm above wrist joint 2. Abrasion 1 cm x 1 cm right index finger 1st phalax. 3. Abrasion 2 cm x 2 cm ring finger terminal phalanx. 4. Abrasion 1 cm x 1 cm little finger. All these injuries were simple in nature and could have been caused by a hard and blunt object - 17 - probably within six hours before examination. The doctor also stated that she had examined Shantabai Kumbhar the daughter of the complainant and found (1) C.L.W. 1 cm x 1 cm over right thumb 1st phalanx palmar aspect and (2) C.L.W. 2 cm x 2 cm right thumb 1st Phalanx dorsally. The doctor stated that the injuries could have been sustained by an iron pipe article no.3. In her cross-examination, she stated that accused no.2- Kallappa was referred to the hospital by Jail Road police station with a yadi Exhibit 45 and Kallappa was in the hospital from 3rd July,1988 to 16th July,1988. 15. As per PW 9, Dr.P.S.Ghatole the complainant Chanappa was referred to him by the Medical Officer Dr.Kore and condition of the patient was deteriorating. He was therefore, operated and his abdomen was opened to know the internal injuries. Injury to the stomach 1“ x 1“ on ante of stomach was found and it was injury on the vital part of the body and therefore serious injury. He also stated - 18 - that the said injuries during slow process could have been caused the death of the victim. In his cross–examination, he stated that the patient was referred on 3rd July,1988 and he started the operation at 10 a.m. The patient was conscious when referred. 16. We have to now examine whether the evidence of the eye witnesses, panch witnesses and police personnel as well as other government employees as placed before the trial court by the prosecution support the order of conviction and sentence, challenged in these two appeals, qua accused nos. 3 and 4. Exhibit 13 inquest panchanama, Exhibit 14 spot panchanama, Exhibit 16 seizure of the clothes of the complainant, Exhibit 17 seizure of the clothes of accused no.2 Kallappa,Exhibit 18 arrest panchanama of accused no.1 and Exhibit 19 seizure of clothes from the dead body of Vithal, Exhibit 21 list of articles sent for chemical analysis by the Investigating Officer are the documents admitted by the defence before the trial court. - 19 - 17. PW 6 Chandrakant Munjale was the panch witness for discovery of knife article 22 at the instance of accused no.3 under the panchanama at Exhibit 44 and memorandum of statement at Exhibit 43. PW 7 Tukaram Magan is another panch witness for discovery of another knife article 23 at the instance of accused no.3 Kallappa Pattan. Exhibit 47 is memorandum statement and Exhibit 48 is the panchanama. Article nos. 3, 22 and 23 were the weapons along with all other articles as mentioned in the list at Exhibit 21 were sent for chemical analysis by PW 20 Appa Patil and as per the C.A.reports, received at Exhibit nos.26 to 85 the blood group of the accused persons was noted as under : ---------------------------------------------------- Sr.No. Name Blood group ---------------------------------------------------- 1. Dhondappa Bhimashankar Pattan A 2. Kallappa Bhimashankar Pattan A 3. Dareappa Shantappa Hattarans B 4. Putlabai Bhimashankar Pattan AB - 20 - Blood group of PW 10 Siddhram Kumbhar was detected as B and that of his mother Mallava also B and his father Chanappa complainant was of O. Article no.22 the knife was found to be stained with blood group A and B whereas other knife article 23 was found to be stained with human blood. The blood group of the deceased could not be detected. 18. PW 8 Chanapa Kumbhar stated before the trial court that his house was located at 34/33 at New Pachha Peth, Solapur and he stayed in the house with his wife Mallava sons Sidhram and Vithal and daughters Shantabai and Nilabai. Opposite to his house was the house of Bhimashankar Pattan across the road and accused nos.1 and 2 were the sons of Bhimashankar and Putlabai was his wife. Accused no. 3 is the maternal brother of Dhondappa. He was a milkman for about 20 years standing and has cattles in his house. The cow-dung was by the side of his house wall and drain water coming from the house of the accused was becoming a nuisance to him. He had therefore called upon the accused to stop the flow of waste water on the road and let it flow in the drain. On this count, there was a quarrel between - 21 - the parties. On the date of the incident, he went to milk his buffaloes at 5 a.m. and the buffalo had delivered a calf, one day before. The buffalo had started giving kicks when its calf went around. He therefore, used abusive language to the buffalo and at that time accused no.4 was sweeping the courtyard of her house and heard the abuses hurled by him. In a short time, accused no.4 with two of her sons and accused no. 3 armed with a iron pipe and knives came out. Accused no.4 questioned him as to why he was abusing to her and therefore he explained that he did not use any abusive words addressed to her and the abusive words were addressed to his buffalo. At that point of time accused no.1 gave a blow by iron pipe on his head while he was standing in front of his house. His other family members i.e. sons, wife and daughter Shantabai were also standing. Accused no.2 gave a blow with a knife below his chest and therefore his son Vithal intervened to rescue him. Accused nos. 2 and 3 then started giving blows with knife one after another to Vithal on his stomach, head and arm with a knife. At this stage, the elder son Sidhram tried to intervene but accused no.1 attempted to give a blow with the iron pipe but, Siddhram raised his hand and therefore he received - 22 - one injury on his hand. Accused no.2 gave a blow with the knife on the chest of Siddhram and accused no.3 gave a blow with the knife below the chest of Siddhram. At this stage, Vithal collapsed and cried “Melo Melo and accused no.1 threw away