1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.140 OF 2008 1. Navnath s/o Kondiba Nagargoje, Age 25 years, Occu.Agril., R/o Limba, Taluka Shirur (Kasar), District Beed 2. Kondiba s/o Kisan Nagargoje, Age 65 years, Occu.Agril., R/o Limba, Taluka Shirur (Kasar), District Beed 3. Shivnath s/o Kondiba Nagargoje, Age 18 years, Occu.Agril., R/o Limba, Taluka Shirur (Kasar), District Beed .. APPELLANTS (Orig.Accused Nos.1 to 3) VERSUS - The State of Maharashtra .. RESPONDENT (Orig.Complainant) Smt. S.S.Jadhav, Advocate for appellants Shri K.S.Patil, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 8th March 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellants (original accused Nos.1, 2 and 3) who stand convicted for an offence punishable under Section 302 read with 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs.1,000/- with a default condition of 2 undergoing further rigorous imprisonment for six months in the event of non payment of fine and original accused No.1 Navnath, original accused No.2 Kondiba and original accused No.3 Shivnath who stand convicted for an offence punishable under Section 324 read with 34 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and to each pay fine of Rs.500/- with a default condition of undergoing further rigorous imprisonment for six months in the event of non payment of fine, with the condition that the substantive sentences shall run concurrently, by the Additional Sessions Judge-1, Beed by judgment dated 7.4.2008, in Sessions Case No.103 of 2006, 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. P.W.15 P.S.I. Ashok Jadhav who was attached to the Control Room of the S.P. Office and was maintaining the diary, was informed by A.S.I. Jadhav on 17.8.2006 at 9.00 p.m. that there was a quarrel at village Limba. Accordingly, entry of the incident narrated by A.S.I. Jadhav was recorded by P.W.15 P.S.I. Jadhav at Exh.71. P.W.16 P.S.I. Mitkari who was attached to the Shirur Police Station as P.S.I. was informed by Head Constable Dhakne at about 9.00 p.m. that he had received information from A.S.I. 3 Jadhav about a quarrel at village Limba and that the injured were admitted in the Civil Hospital at Beed. Further information was communicated that one Dinkar Nagargoje had succumbed to his injuries and his brother was admitted in the hospital. P,.W.16 P.S.I. Mitkari accordingly proceeded to the scene of the incident and thereafter proceeded to the Civil Hospital at Beed. There he made A.S.I. Jadhav who had already recorded the inquest panchnama at Exh.67 in the presence of P.W.13 Eknath. Statement of P.W.5 Vilas came to be recorded at Exh.47 and on the basis of the same an offence vide Crime No.59/2006 came to be registered. The investigation of the said crime was entrusted to P.W.16 P.S.I. Mitkari. On the next day i.e. on 18.8.2006 he proceeded to the scene of the incident and drew the scene of the offence panchnama at Exh.26 in the presence of P.W.1 Keshav. From the scene of the offence he seized samples of ordinary mud and blood mixed mud and a wrist watch and a neckless of beads of Tulsi. A wooden cover of sword stick also came to be seized from the place of the incident. Statements of witnesses came to be recorded. The accused who were detained in the police station came to be arrested and clothes of the accused came to be seized vide Exh.37 in the presence of P.W.3 Subhash. The arrest panchnama of the accused is at Exh.73 to 75. The statement of injured P.W.6 Narayan came to be recorded and thereafter his clothes came to be seized vide seizure memo at 4 Exh.38 in the presence of P.W.3 Subhash. On 22.8.2006, during custodial interrogation accused No.2 Kondiba expressed his willingness to point out the place where the axe was hidden by him. Accordingly, memorandum at Exh.40 came to be drawn in the presence of P.W.4 Sugriv. The axe Article 14 came to be seized vide seizure panchnama at Exh.41. On the next day i.e. on 23.8.2006 accused Navnath expressed his willingness to point out the place where the knife was hidden. Accordingly, memorandum of accused No.1 Navnath came to be recorded at Exh.42 in the presence of P.W.4 Sugriv and knife Article 16 came to be seized under panchnama at Exh.43. On the same day accused No.3 Shivnath expressed his willingness to point out the place where a sickle was hidden and accordingly memorandum at Exh.44 came to be drawn in the presence of P.W.4 Sugriv and the sickle Article 15 came to be seized under panchnama at Exh.45. The seized articles were referred to the Chemical Analyzer for examination under requisition at Exh.76. Dead body of deceased Dinkar had been referred for post mortem examination and post mortem came to be conducted by P.W.11 Dr.Shinde. P.W.11 Dr.Shinde noticed the following external injuries. 1. CLW (right side) below rib cage of size of 4 x 2 x 10 cm deep extending into peritoneum over mid axillary line 5 2. CLW (left side) below nipple of the size 1 x 1 x 1 cm 3. Friction abrasion on right tibia. On internal examination, injury to the liver 3 x ½ x 1 cm was noticed. There was blood in the peritoneum and cavity. P.W. 11 Dr.Shinde, therefore, opined that cause of death was due to haemorrhagic shock due to stab injury. The post mortem report is at Exh.59. The provisional death certificate is at Exh.60. 3. Further to the completion of investigation a charge-sheet against the appellants and absconding accused No.4 Sahdeo came to be filed. On committal of the case to Court of Sessions, trial Court vide Exh.19 framed charge against the appellants for offence punishable under Section 302 read with 34 and 324 read with 34 of the Indian Penal Code. The appellants denied their guilt and claimed to be tried. Prosecution in support of its case examined 16 witnesses. The main stake of the prosecution case is the evidence of the eye witnesses viz. P.W.5 Vilas, P.W.6 Narayan, P.W.7 Jijabai and P.W.8 Babu. The trial Court accepted their testimony and convicted and sentenced the appellants as afore-stated. In order to 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 eye witnesses. 6 4. P.W.6 Narayan who is an eye witness as well as who had sustained injuries in the incident states that on the day of the incident i.e. on 17.8.2006 he was returning from the Khalapuri Bazar at about 5.00 to 530 p.m. He had met Sahdeo Kirtane i.e. original accused No.4 and both of them had boarded a bullock- cart for proceeding to their village. Original accused No.4 Sahdeo asked P.W.6 Narayan to caution his brother deceased Dinkar. Accordingly, Narayan promised to caution his brother Dinkar. Accused No.4 Sahdeo alighted from the bullock-cart at village Tarodi while P.W.6 Narayan proceeded towards village Limba. While going towards his house at about 6.30 to 6.45 p.m. he noticed a crowd near the Well and on going near the Well he heard hue and cry and, therefore, proceeded towards the Well. There he noticed all the four accused assaulting his brother Dinkar. Immediately accused No.3 Shivnath came towards P.W.6 Narayan, brandishing a sickle. Narayan clutched the hand of Shivnath and suddenly accused No.2 Kondiba rushed at Narayan with an axe and dealt a blow on the left side of the forehead. Accused No.3 Shivnath dealt a sickle blow on the right side of the forehead. On receiving the injuries, Narayan fell on the ground and became unconscious. When he regained consciousness he noticed Dinkar lying on the ground with injuries on his stomach and chest. Narayan further states that while Shivnath, Sahdeo and Navnath were assaulting Dinkar, Sahdeo was arm 7 ed with a sword stick while Navnath was armed with a stick. He states that P.W.8 Babu and one Jaydatta summoned the jeep and the injured were taken to the Civil Hospital at Beed. On the next day Narayan learnt that Dinkar had succumbed to his injuries. Narayan was admitted in the hospital upto 19th August and thereafter his statement came to be recorded on 20th August 2006. He states that his clothes which were blood stained came to be seized. Narayan further states that about three months prior to the incident there was a quarrel between accused No.2 Kondiba and his brother Kashinath on account of the use of the Well water. He further states that the dispute was settled in the presence of the villagers in the meeting but in the meeting accused No.1 Navnath had pelted a stone at deceased Dinkar. He claims to have stated in his previous statement that he was assaulted by a sickle on his forehead by accused Shivnath but could not explain as to why this fact was not recorded in his statement. He claims to have stated to the Police that accused Navnath and Sahdeo were assaulting his brother Dinkar when accused Shivnath had rushed towards him. He states that he had not actually seen by which weapon deceased Dinkar was assaulted. He has denied the suggestion that deceased Dinkar had assaulted accused Kondiba with an iron bar and that P.W.8 Babu had assaulted Subhabai by the handle of the sword. He has denied the suggestion that he, deceased Dinkar and P.W.8 Babu 8 were in the influence of liquor at that time. He has admitted in the cross-examination that a criminal case under Section 306 of the Indian Penal Code was registered against him and his brother Kashinath and his mother. 5. P.W.5 Vilas, the first informant, states that he is related to the accused as accused No.2 Kondiba is his uncle. He states that there is a common Well for irrigation of the land with a five horse power electric motor installed on the Well. The agricultural lands are irrigated turn by turn. He further states that about three months prior to the incident there was dispute between accused No.2 Kondiba and deceased Dinkar and his brothers on account of the right to use the Well water. He then states that on the day of the incident at about 6.30 to 7.00 p.m. deceased Dinkar went towards the Well for starting the electric pump. There was an altercation between accused and Dinkar. He states that he had also gone towards the Well and other people had also assembled there which included P.W.8 Babu. He states that he requested accused Navnath and Shivnath not to quarrel but the did not listen. P.W.6 Narayan came there and accused No.2 Kondiba dealt a blow of axe on the forehead of Narayan while accused Navnath dealt a blow of knife on the abdomen of Dinkar while accused Sahdeo pierced the sword stick in the chest of deceased Dinkar. He further states that Narayan had also received a blow 9 of sickle from accused No.3 Shivnath on the left side of his forehead. P.W.8 Babu was despatched to bring a vehicle and accordingly, the injured were taken to the hospital in a jeep. He then states that statement at Exh.47 came to be recorded. In cross-examination he has admitted that his father and father of deceased Dinkar are real brothers while sister of Kondiba is married to Baburao Kirtane. He has denied the suggestion that the Well belongs to him while he admitted the fact that electricity bill was being received in his name and at the time of the incident, the arrears were Rs.70,000/-. He has admitted to have stated in his complaint that accused No.2 Kondiba dealt a blow of axe on the forehead of Narayan while accused No.1 Navnath had dealt a blow of knife to deceased Dinkar on his abdomen and that accused No.4 Sahdeo dealt a blow of Gupti on the left side chest of Dinkar. He claims to have stated that accused No.3 Shivnath had dealt a sickle blow on the left forehead of Narayan. He could not explain as to why these facts were not stated in his complaint. He has admitted that when he had gone to the scene of the offence, the altercation between the accused and deceased Dinkar was in progress and there was also a scuffle between them. He states that when the altercation and the scuffle was going on he had tried to intervene and separate the accused and deceased. He states that Narayan arrived at the scene from the East-North direction and was the first to be the injured. He states 10 that both the axe and the sickle were used from their sharp edge to cause the injury. He states that he had immediately called the jeep and taken the injured to the hospital. He has stated that no injuries were sustained by Subha, Kondiba and Deubai. He has denied the suggestion that he and others had assaulted Kondiba, Subha and Deubai. 6. P.W.7 Jijabai states that on the day of the incident her husband Dinkar had gone to the Well. She states that she had heard hue and cry and, therefore, accompanied by her mother-in- law had rushed towards the Well. She had noticed an altercation between accused and her husband Dinkar while P.W.8 Babu was requesting the accused not to quarrel. Suddenly accused No.1 Navnath dealt a blow on the stomach of Dinkar while accused No. 4 Sahdeo assaulted her husband on his chest with a sword stick. Accused No.2 Kondiba assaulted Narayan with an axe on the left forehead while accused No.3 Shivnath assaulted Narayan with a sickle on the right side of the forehead. Thereafter the injured were shifted to the hospital. Dinkar succumbed to his injuries after his admission in the hospital. In cross-examination she has admitted that P.W.6 Narayan, Hari and Kashinath were in the same house where she was residing. She could not explain as to why her statement during investigation did not contain that her husband had gone towards the Well for starting the electric 11 pump. She could not explain as to why her previous statement did not reflect that she had stated that accused No.4 Sahdeo dealt a blow of sword stick on the chest of Narayan. She also could not explain the use of the weapon axe and sickle while inflicting injuries to Narayan. Omission has been duly proved that she had not stated that Narayan on receiving the injuries sat down on the ground and Vilas had asked Jaydatta and Babu to bring jeep. She has admitted that she had reached the scene while altercation and scuffle was going on between the accused and deceased Dinkar. It has been elicited in the cross- examination that she had witnessed the incident from a distance of 1 to 2 feet. 7. P.W.8 Babu also deposes on similar lines as rest of the other witnesses. Omission has been duly proved that he had not stated that he had sustained an injury of knife from Navnath when he had attempted to intervene. Omission in respect of assault by Kondiba on Narayan was in respect of the situs of the injury. 8. Smt.Jadhav, learned Counsel for the appellants has urged before us that P.W.7 Jijabai and P.W.8 Babu have been set up by the prosecution as eye witnesses though in reality the said witnesses are not eye witnesses. It is further urged before us 12 that admittedly accused No.2 Kondiba had not assaulted deceased Dinkar so also accused No.3 Shivnath had not assaulted deceased Dinkar. It is, therefore, urged before us that there is no evidence in respect of meeting of minds and these two accused sharing the intention of original accused No.1 Navnath and original accused No.4 Sahdeo in respect of committing murder of deceased Dinkar. It is urged before us, therefore, that accused Nos.2 and 3 would be entitled to be given the benefit of doubt and these accused would only be liable to be punished in respect of charge punishable under Section 324 of the Indian Penal Code in respect of assault on P.W.6 Narayan. The learned Assitant Public Prosecutor has supported the judgment of the trial Court and has urged for dismissal of the appeal on the ground that the evidence of the eye witnesses unerringly establishes that the accused had shared the intention to assault deceased Dinkar. 9. Though prosecution has examined four witnesses as eye witnesses, yet no witness has been examined in respect of the incident from its inception. The eye witnesses claimed to have arrived after the incident had commenced. It is true that all the accused were present at the scene of the offence being armed with dangerous weapons like axe, knife, sword stick and sickle. All the accused had used the said weapons for inflicting injuries to deceased Dinkar and P.W.6 Narayan. In respect of the incident, 13 P.W.7 Jijabai states that initially there was an altercation and a scuffle between the accused and deceased Dinkar. Section 34 of the Indian Penal Code contemplates a meeting of mind of all the accused and all the accused sharing the intention of each other. Being armed with dangerous weapons and being present at the scene of the offence itself would be an indication that the accused had shared the common intention of the principal offenders namely accused No.1 and 4 who had inflicted injuries to deceased Dinkar. It is true that original accused No.2 Kondiba and accused No.3 Shivnath had not assaulted deceased Dinkar but merely because they had not participated in the assaulted on deceased Dinkar that by itself would not indicate that they had not shared the common intention of the principal offenders. In fact, according to Narayan, the assault on him and his brother was simultaneous and this would indicate why all the four accused did not participate in the assault on deceased. All the accused were present at the scene armed with weapons and all the accused had not hesitated to use the said weapons. In such circumstances, therefore, according to us though accused Nos.2 and 3 had not assaulted deceased Dinkar, yet towards the furtherance of the common intention they had assaulted P.W.6 Narayan who had attempted to intervene in the quarrel. It would, therefore, indicate that the assault on P.W.6 Narayan was an attempt to facilitate original accused Nos.1 and 4 in assaulting 14 deceased Dinkar. According to us, therefore, the conviction of the appellants has been rightly recorded and no interference is called for. 10. Smt.Jadhav, learned Counsel for the appellants has urged before us that prosecution has miserably failed to prove the recovery of the weapons at the instance of the appellants. According to us, in the light of the overwhelming evidence of the eye witnesses, the recovery of the weapons pales into insignificance and even if any reliance is placed on the recovery of the weapons, the overwhelming evidence of the eye witnesses establishes the offence against the accused beyond reasonable doubt. The accused, therefore, in our opinion are not entitled to be given the benefit of doubt. 11. The appeal thus being sans merit is dismissed confirming the conviction and sentence. Bail bonds of accused stand cancelled. Six weeks time is granted to surrender ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal140.08) 15