1 CRI-APPEAL-836-04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 836 OF 2004 1. Mallinath Gurusiddhappa Birajdar ] Age 47 years ] 2. Gursiddhappa Baswantrappa Birajdar ] Age 72 years ] 3. Sou. Sunanda Mallinath Birajdar ] Age 37 years ] 4. Sou. Sushilabai Parmeshwar Birajdar ] Age 21 years ] 5. Sharanabasappa Gurusiddhappa Birajdar ] Age 23 years ] 6. Parmeshwar Gurusiddhappa Birajdar ] Age 27 years ] All residents of Hatti-Kanbas, ] Tal: Akalkot, District : Solapur ] at present Solapur in Jail ]..Appellants/Accused versus 1. The State of Maharashtra ] (Notice to be served on APP, ] Appellate Side, High Court, Mumbai) ] 2. Laxmibai Siddharam Birajdar ](Dismissed as per Age 40 years, Occ: Agriculture ]Court’s Order dt. 3.5.07) 3. Kasturabai Nagendra Birajdar ] Age 25 years, Occ : Agriculture ] Nos. 2 and 3 residing at Hatti-Kanbas ] Tal: Akalkot, District Solapur ]..Respondents Mr. S. V. Kotwal i/b. Mr. V. V. Purwant for Appellants / Accused. Mrs. U. V. Kejriwal - Additional Public Prosecutor for Respondent No. 1 – State. 2 CRI-APPEAL-836-04.sxw CORAM : D. D. SINHA AND A. R. JOSHI, JJ. Date of Reserving the Judgment : 30.06.2011 Date of Pronouncing the Judgment : 06.09.2011 JUDGMENT : (Per : D. D. Sinha, J.) 1. Heard the learned counsel for the appellants and the learned Additional Public Prosecutor for the respondent no. 1 – State. 2. Criminal Appeal is directed against the judgment and order dated 7th May 2004 passed by the II Additional Sessions Judge, Solapur, whereby the appellants are convicted for the offence punishable under sections 147, 148, 302 read with section 149 of the Indian Penal Code. The circumstances which have given rise to the prosecution of the appellants are as follows: 3. On 27th June 2002 at about 12 noon deceased Siddharam and Nagendra were proceeded towards field Gat No. 178/1 situated at Village Hatti-Kanbas. Both of them started doing sowing operations in the said field. P.W. 6 Laxmibai widow of Siddharam and P.W. 7 Kasturabai widow of Nagendra went to the said field along with tiffon containing meal for their respective husbands i.e. Siddharam and Nagendra. It is the case of the prosecution that after finishing meals Siddharam and Nagendra again started sowing operations in the said field. Laxmibai (P.W. 6) and 3 CRI-APPEAL-836-04.sxw Kasturabai (P.W. 7) started uprooting and collecting the grass in the said field. At about 3.30 p.m. appellants by forming an unlawful assembly entered into the said field. Appellant no. 3 Sunanda (wife of appellant no. 1 - Mallinath) and appellant no. 4 Sushilabai (wife of appellant no. 6 – Parmeshwar) were having packets containing chilli powder, appellant nos. 1, 2, 5 and 6 were armed with deadly weapons like sickle, wood, iron rod and axe. It is the case of the prosecution that all the appellants came to the spot together with a common object to commit murders of Siddharam and Nagendra. 4. It is the case of the prosecution that appellant no. 3 Sunanda threw chilli powder on the face of Siddharam while appellant no. 4 Sushilabai threw chilli powder on the face of Nagendra. Both these persons started rubbing their eyes, in the meanwhile appellant nos. 1, 2, 5 and 6 started assaulting deceased Siddharam and Nagendra and caused severe and several injuries on their person. Laxmibai and Kasturabai witnessed the incident from the distance and shouted for help. The appellants threatened them and therefore they were frightened and came towards Village Goudgaon. Siddharam and Nagendra died on the spot. 5. The report about the incident was lodged by Sangameshwar (P.W. 9) 4 CRI-APPEAL-836-04.sxw which was reduced in writing by P.W. 15 – Mallikarjun. The police officer in charge of the police station Akalkot registered the offences against the appellants under sections 147, 148, 149, 302, 323 and 504 of the Indian Penal Code and under section 135 of the Bombay Police Act and recorded station diary entry. Mallikarjun (P.W. 15) took over the investigation and proceeded to the scene of offence. On the same day at about 9.30 p.m. he arrested appellant no. 1 Mallinath and appellant no. 2 Gurusiddhappa and seized their clothes under panchnama Exhibit 53. On the next day the investigating officer recorded spot panchnama Exhibit 23 in the presence of the panchas Sharnappa and Revanappa. He also seized plastic bags containing chilli powder from the spot. Inquest panchnama was done on the dead body of both these deceased persons and thereafter the dead bodies were sent to the Rural Hospital Akalkot for post mortem examination. Dr. Mhetre (P.W. 8) conducted post mortem examination and opined that death of Nagendra was due to haemorrhagic shock on account of head injury and blunt injury to upper limb. He further opined that death of Sidharam was due to haemorrhagic shock on account of head injury and blunt injury to right lower limb. P.W. 14 PSI Ghorpade arrested appellant nos. 3 and 4. The blood stained saris of Sunanda and Sushilabai were seized. On 30th June 2002 appellant no. 5 Sharanbasappa and appellant no. 6 Parmeshwar were arrested. The blood stained clothes i.e. bush shirt of Sharanbasappa and 5 CRI-APPEAL-836-04.sxw bush shirt and pant of Parmeshwar were seized. He also gave Yadi for taking sample of blood of the appellants. PSI Ghorpade conducted recovery panchnama of blood stained weapons i.e. sickle, axe, iron rod, stick (wood) at the instance of appellant no. 6 – Parmeshwar from Padvi of his house pursuant to his memorandum statement. Clothes of deceased Siddharam and Nagendra were seized under the panchnama Exhibit 54. P.W. 15 Mallikarjun recorded statement of as many as 15 witnesses. P.W. 10 Nivrutti carried muddemal property to the chemical analyser. Chemical analyser reports are at Exhibits 78 to 85. On completion of investigation, appellants were charge sheeted, committed to the court of sessions for trial. Charge was read over and explained to them in vernacular. Appellants pleaded not guilty and claimed to be tried. 6. The learned counsel for the appellants has submitted that though the prosecution has examined 15 prosecution witnesses, however the case of the prosecution is more or less primarily based on the evidence of two eye witnesses P.W. 6 Laxmibai widow of deceased Siddharam and P.W. 7 Kasturabai widow of deceased Nagendra. Learned counsel for the appellants has contended that the conduct of these two eye witnesses is unnatural which is evident from the following circumstances appearing in their respective testimonies: 6 CRI-APPEAL-836-04.sxw i. It is unbelievable that both of them having seen the murder of their respective husbands could not call for help from neighbouring farmers or villagers from Village Hatti- Kanbas. The evidence of P.W. 7 shows that there were houses of her relatives at Village Hatti-Kanbas as well as at Village Goudgaon. Both these witnesses after seeing the incident ought to have disclosed the incident to their relatives, friends from both these villages and would have sought help, if they really had seen the incident. They would not have waited till P.W. 9 Sangameshwar returned from Solapur to Goudgaon; ii. Even on their way from Village Hatti-Kanbas to Village Goudgaon (which is about one mile away) they did not narrate the incident to anybody; iii. No prudent person would have left the dead body of their husbands lying unattended at a far away spot; iv. They did not try to bring medical help. The first reaction should have been to call every possible help to save the life of injured. 7 CRI-APPEAL-836-04.sxw 7. The learned counsel for the appellants therefore submitted that the above referred conduct of these two witnesses being unnatural, creates reasonable doubt about the authenticity of their respective testimonies. 8. It is contended that there is also an inconsistency between the testimony of these two witnesses. It is submitted that according to the evidence of these witnesses both these women had gone to the field to give meals to their deceased husbands and therefore they should have been consistent as to whether the deceased ate their food after they met. P.W. 6 Laxmibai in her evidence has stated that the deceased had not taken meals whereas P.W. 7 Kasturabai says that the deceased had taken meals. This inconsistency in their testimony creates doubt about the case of the prosecution. 9. The counsel for the appellants has submitted that the medical evidence shows that the death had occurred after one or one and half hours after the meal. This is inconsistent with the evidence of alleged eye witnesses P.W. 6 and P.W. 7. 10. It is submitted that there are material omissions in the police statements of P.W. 6 and P.W. 7. The omissions are in respect of incident of 8 CRI-APPEAL-836-04.sxw quarrel and assault which had taken place one month prior to the incident. The omissions are also in respect of appellant no.3 and appellant no. 4 throwing chilli powder on the face of both the deceased. The arrest panchnama in respect of appellant nos. 1 and 2 shows that the appellant no. 1 has suffered bleeding injury on his right hand and appellant no. 2’s right hand was in plaster. The prosecution has suppressed these facts and failed to give any explanation in respect of these injuries. 11. The learned counsel for the appellants has submitted that the alleged eye witnesses have given false deposition, at any rate, exaggerated version of the incident and therefore it is not safe to rely on the testimony of these two eye witnesses. It is further submitted that the alleged discovery of weapons is not believable as panch P.W. 11 Dedhe is a habitual panch. The memorandum was already prepared by the police and therefore there was no voluntary disclosure and the place from where the weapons were found was accessible to all. Similarly, the chemical analyser’s reports do not support the prosecution because the muddemal was sent after two months of the incident. The blood group of the appellants is not determined and appellant no.1 also had a bleeding injury. It is submitted that copy of the first information report lodged by P.W. 9 Sangameshwar was sent to the Magistrate after three days i.e. 1st July 2002 leaving scope for inferring that 9 CRI-APPEAL-836-04.sxw there was manipulation and fabrication of the prosecution story. 12. It is submitted that the prosecution has not examined independent witnesses though there is evidence on record to show that there were other agricultural fields adjacent to the field in question where the incident had taken place as per the case of the prosecution. 13. It is contended that appellant no. 1 Mallinath used the sickle, appellant no. 2 Gurusiddhappa used a stick, appellant no. 5 Sharanbasappa used a rod and appellant no. 6 Parmeshwar used an axe. Injury by rod and stick are not on vital parts of the deceased, injury on head, though incise, is not possible by an axe. Therefore, even if it is presumed that the prosecution case is true even then it is difficult to accept that the appellants shared common object to commit murders. It is therefore contended that findings of conviction recorded by the trial court are unsustainable in law. 14. The learned Additional Public Prosecutor on the other hand has supported the impugned judgment and order of conviction passed by the trial court and contended that the prosecution has examined P.W. 6 Laxmibai and P.W. 7 Kasturabai as an eye witnesses to the incident and their evidence is cogent, trustworthy and reliable. It is submitted that both 10 CRI-APPEAL-836-04.sxw these witnesses were present on the spot when the incident in question had taken place and therefore had ample opportunity to witness the same. The learned Additional Public Prosecutor has contended that criticism about their conduct is unwarranted which does not affect the credibility of their evidence. The omissions and contradictions brought out in their testimony though claimed to be material, however they are of minor nature and do not affect the veracity of their testimonies. It is contended that the evidence of eye witnesses was rightly accepted by the trial court coupled with the other circumstantial evidence adduced by the prosecution, the trial court was justified in convicting the appellants for the offences charged. 15. We have given anxious thought to the contentions canvassed by the respective counsel for the parties and scrutinized the prosecution evidence. The case of the prosecution is primarily based on testimony of two eye witnesses, viz. P.W. 6 Laxmibai and P.W. 7 Kasturabai. Both these women are widows of the deceased. Since the material prosecution evidence is of these two eye witnesses, therefore, it will be appropriate to scrutinize the same before considering the other circumstantial evidence adduced by the prosecution. 16. P.W. 6 Laxmibai in her examination-in-chief has stated that at the 11 CRI-APPEAL-836-04.sxw time of incident she was residing with her late husband Siddharam, deceased Nagendra, Kasturibai, Sangmeshwar in the house which was situate at Goudgaon. This witness has further deposed that appellant nos. 1, 5 and 6 are her cousin brother-in-laws while appellant nos. 3 and 4 are her cousin sister-in-laws. Appellant no. 2 is her cousin father-in-law. This witness has deposed that since 15 years there was a dispute in between the family of Laxmibai and the appellants on account of agricultural field, as well as for non payment of electricity charges. It has come in the testimony of this witness that appellant nos. 1 and 2 used to beat Siddharam and Nagendra and therefore all of them shifted to Village Goudgaon since 7 to 8 years. This witness has further stated in her testimony that at the relevant time there was a standing sugarcane crop in the field at Village Hatti- Kanbas. Appellant no.2 Gurusiddhappa left she buffalo in the sugarcane field. Deceased Nagendra drew away the said she buffalo out of that sugarcane field. Appellant no. 1 Mallinath and appellant no. 2 Gurusiddhappa therefore beat Nagendra. This witness has stated in her examination-in-chief that the incident had taken place in the field of Nagendra at Village Hatti-Kanbas. Siddharam and Nagendra went to the field at about 12 noon on the day of incident and were doing sowing operations. This witness and her sister-in-law Kasturabai went to the field with the tiffon for serving meals to Siddharam and Nagendra. At that time 12 CRI-APPEAL-836-04.sxw this witness and Kasturabai also started doing the work of uprooting grass from the field. It has come in the testimony of this witness that appellant nos. 1 to 6 had come in that field. Appellant nos. 3 and 4 were having packets of chilli powder, appellant no. 1 was armed with sickle, appellant no. 2 was having wood, appellant no. 5 was having iron rod while appellant no. 6 was having an axe. This witness has stated that appellant no. 3 Sunanda and appellant no. 4 Sushilabai threw chilli powder on the faces of Nagendra and Siddharam and therefore they started rubbing their eyes. Appellant nos. 1, 2, 5 and 6 started assaulting Siddharam and Nagendra. Appellant no. 1 assaulted with sickle, appellant no. 2 by piece of wood, appellant no. 5 by means of iron rod while appellant no. 6 assaulted deceased by means of an axe. Laxmibai has further stated in her examination-in-chief that she and Kasturabai had rushed to rescue Siddharam and Nagendra, however appellant no. 1 Mallinath and appellant no.2 Gurusiddhappa asked Sunanda and Sushilabai to throw chilli powder in the eyes of this witness and Kasturabai. Due to fear this witness and Kasturabai moved little bit away from the place of incident and started raising alarm. It has come in the testimony of this witness that Siddharam and Nagendra fell down on account of injuries sustained by them in the assault. Thereafter the appellants left the scene of offence. Siddharam and Nagendra died on the spot. P.W. 6 Laxmibai stated in her examination-in- 13 CRI-APPEAL-836-04.sxw chief that her son Sangmeshwar returned from Solapur when they reached their residential place. This witness narrated the incident to Sangmeshwar and thereafter Laxmibai, Sangameshwar and Kasturabai came on the spot of incident. Sangmeshwar saw Siddharam and Nagendra both were dead and their dead bodies were lying in the field and therefore he thereafter went to the police station Akalkot and lodged the report about the incident. 17. While going through the cross-examination of this witness, we have noticed that the admissions extracted by the defence in the cross- examination of P.W. 6 Laxmibai would show that the defence has not seriously disputed the incident in question. This witness in the cross- examination has stated that she cannot specify for how much time the incident was lasted, whether it lasted for half an hour or one hour. Similarly, Laxmibai further stated in her cross-examination that assailants inflicted blows in quick succession, she has intervened but the chilli powder was thrown on their faces. She has also stated that as the assault was going on she stood by the side and was witnessing the incident and also raised alarm. All these admissions finding place in the cross-examination of P.W. 6 Laxmibai clearly demonstrate that the defence did not have much quarrel about the incident in question. On the other hand it reaffirms the material particulars of the prosecution case disclosed by this witness in her 14 CRI-APPEAL-836-04.sxw examination-in-chief. 18. In the context of the admissions extracted by the defence in the cross- examination of this witness, the omissions brought out by the defence loses its efficacy apart from the fact that they do not affect the veracity of the testimony of this witness. Taking into consideration the overall view of the testimony of P.W. 6 Laxmibai, we feel that the evidence of Laxmibai is quite consistent with the case of prosecution, her presence at the spot of occurrence is also not much in dispute. The cross-examination in respect of her subsequent conduct, in our view, does not affect the credibility of her testimony. 19. Another eye witness examined by the prosecution is Kasturabai (P.W. 7). Her testimony is more or less same to that of Laxmibai (P.W. 6). This witness has stated in her examination-in-chief that on the day of incident at about 12 noon Siddharam and her husband Nagendra went to the field for doing sowing operations. She and Laxmibai went to the field along with the tiffon containing meals for their husbands. Both these witnesses started uprooting / collecting grass from the field. Deceased had their meals and again started sowing operations in the field. She has stated in her examination-in-chief that Sushilabai and Sunandabai came in the 15 CRI-APPEAL-836-04.sxw field and threw chilli powder on the faces of Siddharam and Nagendra. In the meantime appellant no.1 Mallinath came on the spot armed with sickle, appellant no. 2 Gurusiddhappa armed with wood, appellant no. 5 Sharanbasappa armed with iron rod while appellant no. 6 Parmeshwar was armed with an axe. Appellant nos. 1, 2, 5 and 6 started assaulting her brother-in-law and her husband. Siddharam and Nagendra fell down on the ground as a result of the assault. This witness and Laxmibai raised hue and cry and witnessed the incident from some distance. After the assault the appellants went away. This witness and Laxmibai started crying. Both these witnesses returned to Goudgaon where they met P.W. 9 Sangmeshwar who came from Solapur. This witness narrated the incident to Sangameshwar and told him that Siddharam and Nagendra died and their dead body is on the spot of the incident. All of them came back to the spot of incident. Sangameshwar saw that Siddharam and Nagendra were dead and therefore went to the police station for lodging the report. 20. Perusal of the cross-examination of this witness would show that this witness has admitted that firstly Sunanda and Sushilabai came in the field where the incident took place. They initiated talk with Siddharam for some time and thereafter threw chilli powder on the faces of Siddharam and Nagendra. It is pertinent to note that in the cross-examination Kasturabai 16 CRI-APPEAL-836-04.sxw has given admission that Siddharam and Nagendra were fallen down in supine position i.e. their faces were facing towards sky. The assailants assaulted by means of sickle, axe and iron rod on the stomach, chest, and other parts of the body. Both the persons received many blows during the assault. This witness has also denied the suggestion that this witness and Laxmibai had not gone to rescue nor intervened in the quarrel. This witness further stated in cross-examination that after the assault this witness and Laxmibai saw Siddharam and Nagendra were dead on the spot and they returned home at Goudgaon. The tenor of the cross-examination conducted by the prosecution of Kasturabai P.W. 7 shows that the defence has not seriously disputed the incident. On the other hand, the question put to the witness in the cross-examination by the defence and the answers given by Kasturabai to these questions reaffirms the prosecution case disclosed by this witness and therefore when we considered some of the omissions brought out by the defence in the context of these admissions given by witness Kasturabai in the cross-examination, we feel that much importance to these omissions cannot be given atleast those omissions are wholly inadequate to discredit the evidence of this witness. 21. In the instant case the post mortem on the dead body of Siddharam and Nagendra was conducted by Dr. Mhetre (P.W. 8) and the following 17 CRI-APPEAL-836-04.sxw external injuries were noticed on the dead body of Nagendra: (1)Incised wound over right parietal bone of size 3 c.m x 1 ½ c.m. and 2 c.m. deep. Edges regular, bleeding positive. Bone inside wound was normal. (2)Abression over left side of forehead of size 3 c.m. long, blackish in colour. (3)Contusion over middle 1/3 of left forearm of size 9 c.m. x 9 c.m. with fracture of shaft of both rediesh and ulna and collection of blood from fractured bone. (4)Incised wound over above contusion of size of 4 c.m. x 1 ½ c.m. x 2 c.m. deep. Edges regular and bleeding stopped. The said injury was anterior aspect of the forearm. (5)Contusion over upper 1/3rd of left thigh on anterior- lateral aspect of size 10 c.m. x 10 c.m. Blackiesh blue in colour. (6)Incised wound over right shoulder on anterior aspect of size 5 c.m. x ½ c.m. x 2 c.m. deep. Bleeding stopped. Edges regular. (7)Contusion over upper 1/3rd of right forearm and 18 CRI-APPEAL-836-04.sxw elbow joint on posterior aspect of size 5 c.m. x 4 c.m. with fractured of upper head of reddiesh ulna. (8)Abrassion over lateral aspect of right gluteal region of size 4 c.m. long blackies in colour. (9)Contusion over middle 1/3rd of over middle anterior aspect of right thigh of size 7 c.m. x 6 c.m. blackiesh blue in colour. (10)Abrasion over right knee 3 c.m. long blackiesh in colour. (11)Contusion over back extending from right shoulder area to left gluteal region of 5, 6 in numbers which are parellel to each other of size 60 c.m. 8 c.m. All area is blackiesh blue in colour. (12)Abrasion over left scapular 3 c.m. long blackiesh colour. (13)Contusion over right scapular to left lumber region of size 48 c.m. x 4 c.m. blackiesh in coloured. (14)Contusion over posterior aspect of right gluteal region of size 24 c.m. 12 c.m. blackiesh blue in colour. (15)Incised wound over right elbow of size 3 c.m. x 1 ½ 19 CRI-APPEAL-836-04.sxw c.m. x 2 c.m. deep. Bleeding stopped. Edges were regular. Above all injuries, injury nos. (1) and (3) are fatal as measured blood cozed from these injuries. All the injuries were antemortem. The doctor found the following internal injuries on the dead body of Nagendra: The brain material was edamatus and lacerated right hemisphere of size 4 c.m. x 2 c.m. Bleeding present. In the thorax Both lungs were pale. There was dark coloured blood on right side of heart chamber. Left chamber was empty. Abdomen:- Stomach about half of it was filled with semi digested food