1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.1347 of 2002 Rahul Baburao Pawar Appellant (Org.Accused No.1) Vs. The State of Maharashtra Respondent With Criminal Appeal No.1348 of 2002 Sunil Baburao Pawar Appellant (Org. Accused No.2) Vs. The State of Maharashtra Respondent Mr.Kuldeep Patil for appellants. Ms.S.V.Gajare, APP for State. 2 CORAM: B. H. MARLAPALLE & MRS.MRIDULA BHATKAR, JJ. March 31, 2010. ORAL JUDGMENT (PER B.H.MARLAPALLE,J.) 1. Both these Appeals are directed against the order of conviction and sentence passed in Sessions Case No.300 of 2000 by the learned Ad-hoc Additional Sessions Judge at Karad on 4/12/2002. The appellant in Criminal Appeal No.1347 of 2002 (accused no.1) has been convicted for the offence punishable under Section 302 of IPC and sentenced to suffer life imprisonment. He has also been convicted for the offences punishable under Sections 326, 324, 323 and 341 of IPC whereas the appellant in Criminal Appeal No.1348 (accused no.2) has been convicted for the offences punishable under Section 326 read with Section 34, Sections 324, 323 and 341 of IPC. The maximum sentence he has been awarded is of seven years RI and fine of Rs.1000/- for the offence punishable under Section 326 read with Section 34 of IPC on account of the assault on Shivaji Ganpati Pawar (PW 10). Both the accused are brothers and accused no.1 was arrested on 2/8/2000 and accused no.2 was arrested on 5/8/2000. Accused no.2 came to be released on bail for the first time by 3 this Court on 25/3/2003 whereas the accused no.1 continues to be in jail as of now and right from the date of his arrest. 2. Deceased Yashwant was the brother of Baburao and Baban and the accused are the sons of Baburao whereas the third brother Baban died prior to the date of the incident and his son Deepak – PW 9 along with his mother were staying with Yashwant who was issueless and his wife was not staying with him. Kisan – PW 4 and Shivaji – PW 10 are the cousins of Yashwant and all these three families i.e. the family of the accused, the complainant and Deepak were staying in the neighbourhood houses on the opposite direction. They are the residents of village Vadoli-nileshwar in Karad Taluka. As per the prosecution case Baburao had installed a thrashing machine and it was causing nuisance to the other family members and on account of that there was continuous bickering between the family members. PW 4 and PW 10 were employed with the Maharashtra State Electricity Board. On the date of the incident i.e. on 1/8/2000 at about 9 p.m. Baburao, the father of the accused started abusing Shivaji – PW 10 and deceased Yashwant, on account of the thrashing machine. Shivaji and Yashwant were in their houses and after some time the accused came out and took away their father in the house by pacifying him but after some 4 time again he came out giving rise to a second altercation and his sons also joined. After hearing these altercations some of the neighbours intervened and separated the parties. Yashwant, the deceased, suggested to PW 10 Shivaji that these altercations had become a routine matter and, therefore, it would be better to lodge a police complaint with Karad Police Station. The Karad Police Station is located at a distance of about 10 Kms. from Vadoli and, therefore, Shivaji took out his M-80 two wheeler bearing Registration No.MH-11 6925 and deceased Yashwant was a pillion rider and they proceeded towards Karad. When the accused heard that Shivaji and Yashwant had proceeded to Karad to lodge a police complaint, they took out their Rajdoot motorcycle, accused no.1 picked up an axe and accused no.2 with accused no.1 as a pillion rider started driving his motorcycle towards Karad police station. When PW 4 Kisan and PW 9 Deepak saw the accused following Shivaji and Yashwant, PW 4 took out his M-80 two wheeler and with Deepak as a pillion rider followed the accused. The railway gate was at about a distance of about 2 and ½ Kms. from the location where the accused assaulted Yashwant and Shivaji. Rahul gave an axe blow to Yashwant while Shivaji was holding the two wheeler and, therefore, Yashwant fell down. Accused no.1 continued with his assault on Yashwant and at that time accused no.2 gave a kick to the 5 M-80 vehicle of Shivaji and, therefore, Shivaji fell down and at this stage Shivaji – PW 10 was also assaulted by both the accused with an axe. Immediately thereafter PW 4 and PW 9 arrived at the scene and PW 4 snatched the axe from Rahul’s hand and he assaulted Sunil by the said axe. Consequently Sunil sustained bleeding injuries and Rahul – accused no.1 ran away. PW 4 and PW 9 picked up Yashwant and took him to the Cottage Hospital at Karad on the vehicle of PW 4 at about 10 p.m. and the doctor declared him dead. PW 10 Shivaji reached the same hospital on his vehicle though he had also sustained bleeding injuries. Accused no.1 – Sunil reached the police station first in point of time and recorded a complaint and by then the police station had received a message that there was an incident of assault near the Parle Railway Gate at about 9 p.m. and one person had lost his life. The police went to the Cottage Hospital around midnight. PW 4 also went to the police station and lodged his complaint. C.R.No.123 of 2000 came to be recorded at the behest of PW 4 whereas C.R.No.124 of 2000 came to be recorded at the behest of accused no.1. Both accused no.1 as well as PW 10 – Shivaji were sent for medical examination to the Cottage Hospital by the police and PW 8 Dr. Mohan Patil examined them and treated them. 6 3. The dead body of Yashwant was sent for post-mortem which was conducted by PW 6 – Dr.D. Jadhav who signed the P.M. report at Exhibit 27. The clothes of the accused as well as the deceased were seized and sent for chemical analysis along with the other articles like axe etc. The CA report at Exhibit 48 indicated that blood group of the deceased was “A” and that of the accused is also “A” whereas the blood group of PW 10 – Shivaji is “A”, PW 4 – Kisan is “O” and PW 9 – Deepak is “B”. The axe used was found to have smeared in human blood on its blade but its blood group could not be detected. On completion of investigation, charge-sheet came to be filed and as the offence being triable exclusively by the Sessions Court, the case was committed to the Sessions Court which framed the charge on 13/7/2001. 4. It appears that the investigation in C.R.No.124 of 2000 also continued and a charge-sheet came to be filed against the present PW 4 – Kisan, PW 9 – Deepak and PW 10 – Shivaji and after filing of the charge- sheet for the offences punishable under Sections 326, 341, 323, 504 and 506 read with Section 34 of IPC the case was committed to the Sessions Court and registered as Sessions Case No.9 of 2002, which resulted in the acquittal of all the three accused. The said order of acquittal dated 7 4/12/2002 has not been challenged by the present appellants by filing a Criminal Revision Application nor the State has filed an appeal against it and, therefore, the order of acquittal has attained finality. 4. In the instant case the prosecution examined in all 12 witnesses with PW 1 – Ankush Pawar, PW 2 – Kisan Tarlekar and PW 3 – Shivaji Pawar as the panch witnesses and PW 4 – Kisan – complainant, PW 9 – Deepak and PW 10 – Shivaji as the eye witnesses whereas PW 6 – Dr. D.D. Jadhav, PW 7 – Dr. H.S. Joshi and PW 8 – Dr. M.Y. Patil are the Medical Officers or private practitioners. PW 11 – Shivaji Paradke and PW 12 – Manohar Phadatare are the police officers. The defence did not examine any witness and in their statements recorded under Section 313 of Cr.P.C., it was contended that on the date of the incident the accused along with their father were sitting in their house and PW 10 – Shivaji, PW 4 – Kisan, PW 9 – Deepak and deceased Yashwant went to their house and gave abuses to their father and pushed him. The accused, therefore, went to Karad on their Rajdoot motorcycle to lodge a complaint with the police station. On the same date PW 10 – Shivaji, deceased Yashwant, PW 4 – Kisan and PW 9 – Deepak had come near the railway gate and assaulted the accused and in that incident the accused went to Karad and lodged a complaint with 8 Karad Taluka Police Station. The police had given Yadi and directed them to take injured Sunil to Cottage Hospital where he was admitted. It was further stated that PW 4 – Kisan had filed a false complaint and the accused were innocent. 5. It has been submitted by Mr.Patil, the learned counsel for the accused that though the incident of assault as alleged has taken place near the Railway Gate, it was preceded by some incidents of scuffles and abuses between the parties between 8 to 9 p.m. on the date of the incident and both the parties had sustained bleeding injuries, it cannot be said that the assault sustained by deceased Yashwant was intentional and premeditated. As per Mr.Patil even if it is held that Yashwant died on account of the assault of axe attributed to accused no.1, there would not be any case for the offence punishable under Section 302 of IPC against the said accused and at the most he could be punished under Section 304 Part I or Part II of IPC. The learned counsel also submitted that having regard to the injuries suffered by PW 10 – Shivaji, the charge punishable under Section 326 read with Section 34 of IPC could not be proved by the prosecution against both the accused and at the best there may be a case of an offence punishable under Section 324 read with Section 34 of IPC. It was pointed out that accused 9 no.2 has already suffered the sentence of more than 2 and ½ years in as much as he was taken in custody on 5/8/2000 and was released on bail by this Court only on 25/3/2003 and till the conviction order was passed on 4/12/2002 he remained in jail. As per Mr.Patil, the sentence suffered by accused no.2 is adequate even for the offence punishable under Section 324 read with Section 34 of IPC. He has also pointed out that there is no evidence in support of the charge punishable under Section 341 read with Section 34 of IPC and the testimony of the injured witness Shivaji has suffered material contradictions on the point that M-80 driven by him was intercepted and stopped by the accused. Mr.Patil referred to the depositions of all the three eye witnesses and submitted that the prosecution failed to make out any case of an offence punishable under Section 326 of IPC against accused no.2 independently or with the aid of Section 34 of IPC. He urged that even accused no.1 has been in custody right from 2/8/2000 i.e. almost more than 9 and ½ years and, therefore, he deserves to be released forthwith even if the charge punishable under Section 304 Part I or Part II is held to be proved against him. 6. On the other hand, Ms.Gajare, the learned APP has supported the order of conviction and sentence in its full force. As per her the incident of 10 assault on the deceased is preceded by earlier clashes and as the complainant party was fed up with such clashes initiated by the father of the accused, they decided to file a police complaint and while they were proceeding to the police station, accused no.1 was armed with an axe and that itself went to show his determination to cause deadly injuries either to PW 10 – Shivaji or deceased – Yashwant or both of them. It was submitted by Ms.Gajare that the incident has not happened on sudden provocations and at the same time the accused no.1 did not stop after inflicting one blow of axe on the deceased, having regard to the number of injuries / incised wounds that were seen on the body of Yashwant by PW 6. It was, therefore, urged that the prosecution proved beyond reasonable doubts its case of offence punishable under Section 302 read with Section 34 of IPC against both the accused. However, it is to be noted that against the acquittal of accused no.2 for the offence punishable under Section 302 of IPC independently or under Section 302 read with Section 34 of IPC, the State has not filed an appeal and, therefore, we cannot consider the plea of the State against accused no.2 for his involvement in causing the homicidal death of Yashwant. So far as the role of accused no.2 in causing injuries to PW 10 – Shivaji is concerned, the learned APP submitted that the Medical Certificate at Exhibit 32 clearly went to show that PW 10 had suffered a 11 grave injury with sharp and hard weapon and, therefore, the prosecution had established its case under Section 326 read with Section 34 of IPC. She has referred to the depositions of PW 10 - Shivaji as well as the other two eye witnesses in this regard. 7. We must also refer to an additional point raised by Mr.Patil. He submitted that the learned trial Judge did not frame the charge under Section 326 read with Section 34 of IPC in as much as in Issue No.4 the word “grievous” was not mentioned which is the basic ingredient of Section 326 of IPC. Mr.Patil, therefore, submitted that the accused could not be convicted for an offence punishable under Section 326 read with Section 34 of IPC and, therefore, at the most it would be a case of offence punishable under Section 324 read with Section 34 of IPC against them for causing injuries to PW 10 – Shivaji. Ms.Gajare, the learned APP did not agree with this submission and it was contended that the minor error in framing the charge or framing the issues for decision by the trial Court, did not affect the case of the prosecution, by relying upon the provisions of Sections 215 and 464 of Cr.P.C. She placed reliance in this regard on the decision of the Supreme Court in the case of Dalbir Singh Vs. State of U.P. [2004 AIR SCW 2119]. 12 8. PW 6 – Dr. D.D. Jadhav while in the witness box stated that he was the Medical Officer at Cottage Hospital, Karad from 14/6/1999 to 2/8/2000. He along with Dr.M.Y. Patil conducted the post mortem of the dead body of Yashwant and on examination he found the following injuries (i) Incised wound on left parietal in sagital plane measuring about 4 inches x 1 inch into scalp bone deep. Left parietal bone cut in line of incised wound. Brain matter seen coming out through wound, bleeding was present. (ii)Incised wound on left shoulder lateral aspect vertical 6 cm. X ½ cm. X skin deep red in colour. (iii)Incised wound on medial border of left scapula in interscapular region oblique 7 cm. X ½ cm. (iv)Abrasion on lateral aspect of left mid thigh, oblique 4 cm. X ½ cm. Dried blood present (v)CLW on left qu. tow tip medial aspect 2 ½ cm. X 1 cm. scaling of the skin. (vi)Abrasion on back left side lumber spinal. 13 (vii)Abrasion on left lumber region 2 ½ inches above injury No.6 measuring about 2 cm. X ½ cm. According to him the cause of injury nos.1 to 3 was due to sharp object, while injury nos.4 to 7 could be caused due to hard and blunt object. He stated that injury no.1 was fatal and the age of the injuries was within 24 hours and they were all ante mortem. On the examination of external portion, he found fracture on left parietal region. He also found incised wound on left parietal bone with separation of oval piece on left parietal region of size 12 cm. X 8 cm. and piece of left parietal bone clean cut, 8 cm. of rest oval piece elevated and border irregular, brain covering meriage cut in line of incised wound, brain matter clean cut incised wound of left lobe of brain, Sulci cut in line of incised wound in 10 x 2 x 3 cm. deep and hemorrhage surrounding part of brain adjacent to the wound. According to him the cause of death of Yashwant was due to hemorrhagic shock due to incised wound of left parietal bone and incised wound of left lobe of brain in left parietal region. He signed the post mortem report at Exhibit 27. He also stated that injury no.1 was sufficient to cause death of the patient in ordinary state and the said injury could be possible by article 8 - axe shown to him in the court. He further stated that injury no.5 could be possible by fall on stone. In his cross-examination he clarified that injury 14 nos.2 and 3 were superficial as also injury nos.4 to 7. He also admitted that injury nos.2 to 7 could be possible in a scuffle or due to fall on stone and stick blows. He also admitted that injury no.1 would not cause instantaneous death which indicated that Yashwant did not die instantaneously. The doctor also admitted that there was no facility of operation in his hospital at the relevant time and he denied the suggestion that the patient would have survived if immediate medical treatment was given to him. Having regards to the medical evidence of this witness, it is clear that Yashwant died a homicidal death on 1/8/2000 and when he was admitted to Cottage Hospital at Karad he was already dead. The defence has not seriously disputed the same. 9. PW 8 – Dr.Mohan Yeshwant Patil was the Medical Officer at Cottage Hospital, Karad from 5/6/1995 and he stated while in the witness box before the trial Court that on 1/8/2000 he was on the night duty and the patient by name Shivaji Ganpat Pawar was examined by him at 10.45 p.m. and he noticed the following injuries suffered by him: 15 (i) CLW right frontal parietal region `Y’ shape 1 cm. x 2 cm. scalp deep bleeding present. (ii) Contusion right parietal region 10 cm. in diameter tenderness present. (iii) Incised wound left elbow lateral aspect vertical 7 cm. x 1 cm. muscle deep bleeding present. (iv) Head injury to observation. As per the said doctor Shivaji was conscious and gave a history of assault with axe at about 10.30 p.m. at the Parle Railway Gate. Shivaji was admitted as an in-door patient and injury nos.1 to 3 were sutured, X-ray of injury no.3 was taken which indicated that there was a fracture of ulna left side middle 1/3rd region. He also stated that the patient was transferred to Krishna Hospital, Karad on 2/8/2000 at about 5 p.m. He produced the original case papers along with X-ray report at Exhibits 31 to 35. The doctor also stated in his examination-in-chief that injury no.3 could be caused by blade of axe – article no.8 and injury no.1 could be possible by any corner of blade of axe, wheres injury no.2 could be caused by hard and blunt object. The age of the injuries was within 24 hours and considering 16 the location of injury no.3 it could be caused while defending an attack. In his cross-examination he admitted that accused no.2 – Sunil was examined by him when brought by the police along with a Yadi and he had given history of assault on him at about 10.45 p.m. at Parle Railway Gate. Sunil had received an injury on his head and after his examination the following injuries were found: (i) Incised wound left parietal region oblique 10 cm. x 1/4th cm. bleeding present skin deep. (ii) Minor abrasion dorsen of left wrist three in number each of the size 1 cm. x 1 cm. (iii) Contusion left knee anterior aspect 3 cm. x 3 cm. He admitted that injury no.1 must have been caused by sharp and hard object whereas injury nos.2 and 3 could be caused by hard and blunt object and the age of the injuries was within 24 hours. Sunil was discharged from the hospital on 5/8/2000 at about 9.30 a.m. and the nature of injury no.1 was grievous and it could be caused by sharp edge of muddemal axe whereas the other two injuries could be caused by blunt 17 side of the axe. He also admitted that if the axe was used with force, there could be incised wound and fracture of skull. He also admitted that injury no.1 suffered by Shivaji could be caused by fall on the hard object like the railway gate. He denied the suggestion that in order to suit the prosecution case he had stated that injury no.1 could be possible by sharp edge of axe. He also denied the suggestion that all the documents were manipulated by him and that Kisan Ganpati Pawar had not brought patient Shivaji Pawar to the hospital. He showed his willingness to produce the original papers, if directed. He verified the certificates at Exhibits 34 and other papers at Exhibit 35. He also admitted in his cross-examination that injury on the hand of Sunil could be possible while warding off the blow. PW 7 – Dr. Hemlata Joshi was the Medical Officer at Krishna Hospital and she stated before the trial Court that on 2/8/2000 a patient by name Shivaji was admitted in her hospital at about 5.45 p.m. and he was referred by the Cottage Hospital at Karad along with a letter. The patient had the history of assault of sword and axe and when she examined him, the following injuries were found on his person: (i) Sutured CLW, right frontal parietal region. 18 (ii)Contusion tenderness present left forearm. (iii) Sutured CLW near left elbow. (iv) Contusion tenderness present, right mandibular region. As per the said doctor cause of injury no.1 was hard and sharp object and injury nos.2 to 4 could be caused due to hard object. The age of injuries was within six hours and injury no.2 was grievous in nature while rest of the injuries wee simple in nature. She further stated that X-rays of scalp, left forearm were taken and there was no fracture of skull and mandible, whereas there was fracture to left ulna and it was corresponding to injury no.2. She had issued injury certificate at Exhibit 29 and the patient was discharged on 16/8/2000. In her cross-examination she stated that the history of assault was at about 10 p.m. at Parle Railway Gate. She admitted that she was not a Radiologist and that the fracture of injury no.2 could be possible by fall on hard surface and at the same time all the injuries could be caused by fall on surface. She further stated that injury nos.1 to 4 could not be possible during a scuffle. 10. Thus the evidence of these two doctors went to show that PW 10 Shivaji had received one grievous injury and was under treatment as in- 19 door patient upto 16/8/2000 i.e. for 15 days. He had sustained one injury by sharp and hard object. Rest of the injuries were simple in nature. The grievous injury was attributed to the axe. 11. We are, therefore, required to consider whether the prosecution proved its case beyond reasonable