Crim.Appeal 177/09 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.177/2009 1] Subhash s/o Ansaji Karhale, age 53 yrs., occu.agri., r/o Girgaon Tq.Basmath Dist.Hingoli. 2] Panjabrao s/o Kishanrao Karhale, age 46 yrs., occu.agri., r/o as above. 3] Janardhan s/o Kishanrao Karhale, age 43 yrs., occu.agri., r/o as above. ...Appellants.. Versus The State of Maharashtra. ...Respondent... ..... Smt.S.S. Jadhav, Advocate for appellants. Shri K.S. Patil, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 07.12.2010 Crim.Appeal 177/09 - 2 - ORAL JUDGMENT (Per P.V. Hardas, J.) 1] The appellants, who stand convicted for offences punishable u/s 302 r/w 34, 447 r/w 34 and 323 r/w 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs.5,000/- in default of which to undergo further rigorous imprisonment for six months, rigorous imprisonment for one month and rigorous imprisonment for three months respectively, by the Additional Sessions Judge, Basmathnagar, by judgment dated 27.2.2009, in Sessions Trial No.52/2004, by this appeal question the correctness of their conviction and sentence. 2] Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: PW 4 Bindusa Shinde, P.I. attached to Kurunda Police Station, received papers from Vazirabad Police Station on 13.2.2001. The papers comprised of statement of PW 1 Ananda, inquest panchanama, provisional death certificate, receipt fo dead body and two sealed bottles of blood sample. On the basis of the statement of PW 1 Ananda at Exhibit 45, an offence vide Crime No.8/2001 came to be registered and the investigation of the said crime was entrusted to PW 4 Bindusa Shinde. Scene of the offence – panchanama thereafter came to be drawn at Exhibit 50 in the presence of PW 3 Baburao. From the scene of the offence, sample of ordinary soil, blood stained soil and blood stained stones came Crim.Appeal 177/09 - 3 - to be seized. Clothes of deceased Balaji came to be seized under seizure memo at Exhibit 51. Similarly, clothes of PW 2 Ujwala also came to be seized under seizure memo at Exhibit 51. Similarly, clothes of PW 2 Ujwala also came to be recorded and the arrest of the accused came to be effected under arrest panchanamas at Exhibits 66 to 68. Clothes of accused Subhash, Janardhan and Panjabrao came to be seized under the seizure memos at Exhibits 53 to 55. The seized property was forwarded to the Chemical Analyser along with the requisition at Exhibit 69. The reports of the Chemical Analyser are at Exhibits 70 to 72. An axe was found to be stained with human blood, but the group could not be determined. No blood was detected on the two wooden sticks, which were seized at the behest of the accused. The clothes of PW 2 Ujwala were found to be stained with blood of ‘B’ group while the stones and the sample of blood stained earth were found stained with human blood, but the group could not be determined. Similarly, clothes of deceased Balaji were also found stained with human blood, but the group could not be determined. Dead body of deceased Balaji had been referred for post mortem examination and post mortem on the dead body of deceased Balaji was performed by PW 6 Dr.Ramesh Waghmare. PW 6 Dr.Waghmare noticed the following external injuries: [1] Chop wound on right side of forehead just above rt. Eyebrow of size 4 cms. x 1 cm. bone deep, reddish, margins contused and sharply cut, oblique. [2] Chop wound at left leg, middle one third region on antero lateral aspect, reddish, 4 cm. x 1 cm x muscle deep, margins cut and contused. Crim.Appeal 177/09 - 4 - [3] Evidence of black eye. [4] Abrasion on left side of nose of 2 cm. x 01 cm. reddish. [5] Contusion at lower lip in centre of 2 ½ cm. x 2 cm. reddish. [6] Contusion of 4 x 1.5 cms. width with intervening with normal tissues of 0.5 cm. of left arm, post lateral aspect of transverse. [7] Evidence of two parallel contusions of 4 x 1.5 cm. with intervening normal tissues of 1.5 cm. reddish on right arm antero lateral aspect, transverse upper 1/3rd region. [8] Evidence of two contusions each on both arms, middle 1/3rd region, 4 x 5 cm. of anter lateral aspect transversely placed. [9] Abrasion on right knee of 4 x 2 cms. reddish. [10] Abrasion at left malealus region 2 x 2 cm. reddish. The doctor opined that injuries nos.1 & 2 were caused by heavy cutting edged weapons while injuries nos.3, 5, 7 & 8 were caused by hard and blunt objects. He also opined that injuries nos.4, 9 & 10 were caused by hard and blunt, rough object / surface. He further opined that all the injuries were ante mortem. On internal examination, he noticed contusion of size 4 x 4 cms. at left parietal region and 4 x 2 cms. at right parietal region. He also noticed evidence of contusion on the right, 4 x 2 cms. corresponding to injury no.1. He noticed evidence of fissured fracture on right frontal bone of skull extending to the anterior cranial fossa with infiltration seen at the fracture. Brain showed evidence of hemorrhage and evidence of contusion at right frontal lobe of size 3 x 2 cms. reddish. He, therefore, opined that cause of death was head injury. The post mortem report is at Exhibit 89. Further to the completion of investigation, a Crim.Appeal 177/09 - 5 - charge-sheet came to be submitted against the appellants. 3] On committal of the case to the Court of Sessions, the trial Court, vide Exhibit 30, framed charge against the appellants for offence punishable u/s 302 r/w 34, 447 r/w 34, 323 r/w 34 and 504 r/w 34 of the Indian Penal Code. The accused pleaded their innocence and claimed to be tried. Prosecution, in support of its case, examined six witnesses. Prosecution principally relied upon the testimony of PW 1 Ananda and PW 2 Ujwala, who are said to be the eye witnesses to the incident. The trial Court accepted the evidence of prosecution witnesses and convicted and sentenced the appellants as afore-stated. 4] In order to effectively deal with the submissions advanced before us by Smt.S.S. Jadhav, learned counsel for the appellants, it would be useful to refer to the evidence of the prosecution witnesses. PW 1 Ananda states that deceased Balaji was his real brother. He has two other step brothers, who are Dadarao and Panjabrao. He states that they were owning about 12 Acres of land and after partition, his share and that of his brothers was 3 Acres each. He further states that his step brothers – Dadarao and Panjabrao had sold their lands to accused nos.2 & 3, which land was adjoining to his land on the southern side. Land of accused no.1 was adjoining to his land on the eastern side. He states that there was a dispute between the deceased and the accused on account of the embankment as well as sharing of the water of the well and, therefore, several Crim.Appeal 177/09 - 6 - complaints had been filed against them in the Police Station and some proceedings had been filed in the Court. 5] In respect of the incident, he states that on 12.2.2001, he was present in the field at 1-00 p.m. along with his wife PW 2 Ujwala and deceased Balaji. He states that he and deceased Balaji were irrigating the wheat crop while PW 2 Ujwala was weeding the banana crop. Thereafter, deceased Balaji went towards the farm house for taking his lunch while PW 1 Ananda and PW 2 Ujwala remained in the field. He further states that thereafter he heard the noise from the side of the farm house and, therefore, rushed towards the farm house and noticed all the accused abusing and assaulting the deceased. He states that his wife PW 2 Ujwala also came there and accused no.3 Janardhan kicked Ujwala on her stomach, due to which she fell down. Accused no.1 Subhash pushed him and thereafter accused no.2 Panjabrao dealt axe blows to the deceased on his forehead near the eyebrow, head and right hand. Accused no.1 Subhash also dealt an axe blow on the head of deceased and axe blow on the left shin of deceased. Accused no.3 Janardhan dealt about 5 to 6 dagger blows on the legs as well as one dagger blow on the palm of the deceased when the deceased was resisting the assault. The accused thereafter fled from the scene. He also states that his wife PW 2 Ujwala had fallen prostrate on Balaji in order to prevent any injuries being caused to Balaji at the hands of the accused. He states that Balaji was placed in a bullock cart and brought to the village and thereafter in a jeep was taken to Kurunda Police Station. Crim.Appeal 177/09 - 7 - He states that PSI Shinde noticed the condition of the deceased and referred Balaji to Kurunda hospital. The doctor at Kurunda hospital examined the deceased and referred him to Nanded hospital. Balaji was taken to Nanded hospital where the doctors on examining him pronounced him dead. PW 1 Ananda states that thereafter he lodged his complaint with the Police Out Post at Nanded hospital. He has identified the complaint at Exhibit 41. In cross- examination, he has admitted that his step brothers had executed the saledeeds of their respective lands in the name of wives of accused nos.2 & 3. He has also admitted that the saledeeds had been executed in 1991. He has also admitted that initially only one electric motor pump had been installed on the well and thereafter accused no.3 installed his own electric motor pump. He has admitted that there is one brook passing through his land and the land of the accused in the direction of east to west and the lands of this witness and the accused are divided by the said brook. He has also admitted that the farm house is situated at a distance of 10 to 15 ft. from that brook. He has admitted that the farm house and the banana plants were on one side of the brook while the wheat crop was sown on the other side of the brook. He has given the names of the persons whose lands are adjoining the lands of PW 1 Ananda. He has further stated that he heard the cries of deceased after about 10 minutes of the deceased going to the farm house for his lunch. He states that he was in a position to see the deceased from the field where he was working. He has admitted that bread and vegetables were lying on the spot. He has admitted to have reached the scene of the incident first Crim.Appeal 177/09 - 8 - and his wife thereafter. He has admitted that he was required to cross the brook for going to the scene of the incident. He has also admitted that none from the neighbouring lands had come to the scene of the incident. He has admitted to have seen his brother first in the open space on the western side of the farm house and also states that deceased was assaulted in the western part of the farm house. He has admitted that he had attempted to pacify the accused, but was pushed and again made a second attempt at pacifying the matter. Thereafter the accused assaulted Balaji. Omission has been pointed out that he had not stated in his report that there was dispute on accou8nt of sharing of the well water. However, this omission is restricted to the dispute on account of sharing of water as he has referred to the existing dispute in respect of the well. He has admitted not to have stated in his first information report that he had heard the cries as “I am dying”. Omission has been duly proved that he had not stated that his wife had fallen prostrate on Balaji in order to prevent further injuries to Balaji. Omission has been duly proved that he had not stated that the villagers, who are not ready to provide a vehicle for taking Balaji to the hospital and at the instance of one Gampu, a jeep was made available. Omission has been duly proved that he had not stated in his report that accused no.3 – Janardhan dealt dagger blow on the palm of deceased while the deceased was resisting. Omission has been duly proved that he had not stated that accused no.3 had dealt dagger blows on both the legs. Crim.Appeal 177/09 - 9 - 6] PW 2 Ujwala also states about deceased Balaji going towards the farm house for taking his lunch. She states that she and her husband were busy in the agricultural field. They heard cries from the direction of the farm house and, therefore, rushed there. She states that accused nos.1 to 3 were present there holding sticks and axe in their hands and were abusing the deceased. Accused no.1 Subhash was armed with an axe and dealt axe blows on the head and leg of deceased. Accused no.2 thereafter took the axe from the hands of accused no.1 and dealt blows on the right eyebrow and head of deceased. Accused no.3 Janardhan gave 5 to 6 dagger blows on the right leg, calf and hit the deceased with a stick. She states that she fell on Balaji and thereafter accused no.3 pushed her by kicking her on her stomach. Accused Subhash pushed her husband after assaulting the deceased and thereafter all the accused fled from the scene. In cross examination, she has admitted that the height of the banana plants was such that a person entering the field from the other side was not visible. She has admitted that the wheat crop was 3 ft. in height. She has also admitted that when she had reached the scene, a quarrel was going on in front of the farm house. She has admitted that her husband reached the scene first and she followed him. She has then admitted in cross examination that as soon as she reached the scene, she noticed accused nos.1 & 2 assaulting the deceased. Omission has been pointed out that she had not stated that accused no.2 took an axe from accused no.1 and assaulted the deceased. Omission has been duly pointed out that she had not stated that she had fallen on Balaji in order to prevent further Crim.Appeal 177/09 - 10 - assault. 7] On the basis of evidence of PWs.1 & 2, Smt.S.S. Jadhav, learned counsel for the appellants, has urged before us that admittedly Balaji had sustained injuries on 12.2.2001 at about 1-00 p.m. whereas the first information report came to be lodged on 13.2.2001 in the evening. According to the learned counsel for the appellants, the delay in lodging the report has not been satisfactorily explained. The learned counsel for the appellants also drew our attention to the inquest panchanama at Exhibit 47, which does not state the crime number and, therefore, according to the learned counsel for the appellants, the report had been lodged after the inquest had been performed. 8] As per PW 1 Ananda, he had lodged the first information report on the same day i.e. 12.2.2001 after Balaji had been declared dead by the Medical Officer in the hospital at Nanded. According to PW 1 Ananda, the report had been lodged at the Police Out Post situated in the hospital. There is absolutely no cross examination to this statement. Perusal of Exhibit 45, first information report, reveals that the report was indeed scribed by the Head Constable attached to the Out Post at the hospital under Vazirabad Police Station. The aforesaid report came to be forwarded to Kurunda Police Station and thereafter an offence came to be registered at 4-15 p.m. PW 4 Bindusa Bajirao Shinde has also stated about receipt of the papers including the complaint of PW 1 Ananda. It is obvious that Crim.Appeal 177/09 - 11 - the report had been filed after midnight and, therefore, the ate 13.2.2001 appears on the report. The inquest panchanama had been drawn on 13.2.2001 at 1-30 a.m. and concluded at 2-15 a.m. Since the offence had been committed in the jurisdiction of Kurunda Police Station, Vazirabad Police Station obviously had not registered the offence. However, the recitals of the inquest panchanama clearly disclose the presence of PW 1 Ananda in the hospital at Nanded. In such circumstances, therefore, according to us, there is no delay whatsoever, which would be required to be explained by the prosecution. Though there are slight variations in the evidence of PW 1 Ananda and PW 2 Ujwala in respect of accused no.2 snatching the axe from the hands of accused no.1, yet the evidence of these two witnesses inspires the confidence of the Court for accepting their statements that accused nos.1 & 2 had assaulted the deceased with axe. PW 2 Ujwala has stated that accused no.3 had also wielded a stick, which is not stated by PW 1 Ananda. Both the witnesses in terms have stated that accused no.3 had caused injuries by a dagger, but the post mortem report at Exhibit 89 does not reveal any injuries being caused by dagger. 9] The post mortem report at Exhibit 89 indicates that the injuries had been caused by stick and by axe. There is variance in respect of use of stick by accused no.3 on account of the discrepant evidence of PW 1 Ananda and PW 2 Ujwala. The medical evidence clearly falsifies PW 1 Ananda and PW 2 Ujwala in respect of accused no.3 - Janardhan causing injuries by a dagger as no injury is Crim.Appeal 177/09 - 12 - found, which is caused by a dagger. In such circumstances, therefore, according to us, accused no.3 – Janardhan would be entitled to be given the benefit of doubt. We also find that presence of accused no.3 – Janardhan at the scene of the offence is rendered highly doubtful in the light of the discrepancies, which we have pointed out above. However, we find that the evidence of PW 1 Ananda and PW 2 Ujwala to be consistent in respect of the injuries caused by axe to deceased Balaji. Their evidence is corroborated by the post mortem report at Exhibit 89. The medial officer has opined that the injuries sustained by deceased were sufficient in ordinary course of nature to cause death. Accused nos.1 & 2 had used axe and had inflicted the injuries on vital part i.e. head of the deceased. In such circumstances, therefore, according to us, the offence is squarely proved as against accused nos.1 & 2 – Subhash and Panjabrao. However, accused no.3 – Janardhan, for the reasons stated above, would be entitled to be given the benefit of doubt. Accordingly, we pass the following order. 10] This criminal appeal is partly allowed. Conviction and sentence of appellant no.3 - original accused no.3 – Janardhan s/o Kishanrao Karhale is hereby quashed and set aside and he is acquitted of the offences with which he was charged and convicted. Fine, if paid by the appellant no.3 – original accused no.3 – Janardhan s/o Kishanrao Karhale be refunded to him. Since he is in jail, he be released forthwith if not wanted in any other case. The appeal filed on behalf of appellant no.1 – original accused no.1 – Crim.Appeal 177/09 - 13 - Subhash s/o Ansaji Karhale and appellant no.2 – original accused no.2 – Panjabrao s/o Kishanrao Karhale is hereby dismissed confirming their conviction and sentence. (A.V. POTDAR, J.) (P.V. HARDAS, J.) ndk/cr7121015