IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 255 OF 1988 Pralhad Krishnat Patil & anr. Appellants (Org.Accused Nos. 1 & 2) Vs. The State of Maharashtra Respondent Mr.T.E.Mane for appellants. Ms.V.R.Bhosale, APP for Respondent-State. WITH CRIMINAL APPEAL NO.531 OF 1988 The State of Maharashtra Appellant Vs. Pralhad Krishnat Patil & 10 ors. Respondents (Org.Accused Nos.1 to 11) Ms.V.R.Bhosale, APP for Appellant-State. Mr.T.E.Mane for Respondent Nos.1 to 9 and 11. CORAM: S.S.PARKAR & SMT. RANJANA DESAI,JJ. August 03 & 04, 2004. ORAL JUDGMENT (PER S.S.PARKAR,J.) 1. These two appeals have been filed by the convicted accused and the State against the judgment and order dated 15th March 1988 delivered by the Addl. Sessions Judge, Solapur convicting and sentencing the accused nos.1 and 2 for offence under Sections 304 Part II and 341 both read with Section 34 of IPC and acquitting the rest of the accused i.e. accused nos.3 to 11 of all the offences in Sessions Case No.108 of 1987. Since both these appeals arise from the same judgment in Sessions Case No.108 of 1987, these appeals were heard together and are being disposed of by this common judgment. 2. The prosecution case briefly stated is as follows: The incident of assault took place on 6th March 1987 at about 6-30 p.m. in village Mirzanpur in Taluka Barshi, Dist. Solapur in which one Bharat Govind Late died. It seems there was some political rivalry in the village due to grampanchayat elections and the complaints were also lodged against accused no.1 by some villagers including the deceased and the witnesses in respect of fair price shop which was being run by accused no.1. On the complaint lodged with the District Supply Officer by some persons in which lead was taken by deceased Bharat the licence issued to accused no.1 for running the fair price shop was suspended and thereafter he had obtained stay from the Government on the suspension order. The deceased and others had objected to the stay granted by the Government on the suspension of the licence issued to accused no.1 in respect of the fair price shop. 3. PW 8 Bhujang Sangale was working as mechanic at Tuljapur. He used to go to Tuljapur from Mirzanpur and come back after his work on his moped motor cycle. On the date of the incident Bharat Late met PW 8 Sangale near Tuljapur ST stand. At the request of Bharat PW 8 gave him lift on his motor cycle. They reached Mirzanpur village by about 5-30 p.m. near the primary school building. His sister Kamal PW 15, after learning that accused persons had gathered to beat PW 8, went running near the school and sounded him that the accused were waiting for him and there was danger. At that time accused persons armed with iron bars and sticks went near the motor cycle of PW 8. Accused no.2 Kisan dealt a blow with hunter in his hand on the back of PW 8. PW 8 asked Bharat to get down and run away. PW 8 also started running towards Tuljapur side. Some of the accused tried to chase PW 8. Others started beating Bharat. Accused No.1 had assaulted Bharat on his head with iron bar as a result of which he fell down. It is alleged that others also assaulted him with sticks in their hands. Bharat became unconscious. Bharat was taken in a ST bus by some of the witnesses to the civil dispensary in Tuljapur. In the civil dispensary, after giving some treatment to Bharat the witnesses were asked by the doctor to take him to Solapur. Bharat was then taken in a matador to Civil Hospital, Solapur where they reached about 11-30 p.m. In the following morning PW 6 Sajjanrao Late, who was one of the eye witnesses to the incident and had taken Bharat along with others first to Tuljapur civil dispensary and thereafter to Civil Hospital, Solapur gave his written complaint to the Dy. Superintendent of Police Jadhav in which all the accused were named. That complaint is produced at Exhibit 41 which is dated 7th March 1987. The crime was registered initially, inter alia, for offence under Section 307 of IPC and the investigation commenced. A constable was deputed to the place of incident on the same day and the statements of some of the witnesses were recorded on 7th March 1987 and of others on 8th March 1987. Bharat, who had become unconscious at the place of incident, died in the hospital in the morning of 9th March 1987. Therefore the crime was registered for offence under Section 302 and for offences of unlawful assembly etc. After completion of the investigation charge-sheet was filed in the Court of JMFC, Barshi against 11 accused persons and the case was committed to the Sessions Court at Solapur. 4. On 21st November 1987 the trial Court framed charges against all the 11 accused persons for offences under sections 147, 148, 302 read with section 149 in the alternative read with section 34 of IPC and for offences under section 341 read with section 149 of IPC and under section 323 read with section 149 in the alternative read with section 34 of IPC and for offences under sections 37(1) and 135 of the Bombay Police Act. All the accused pleaded not guilty to the charges framed against them. 5. On behalf of the prosecution 23 witnesses have been examined. There are about six eye witnesses to the incident being PW Nos.6, 7, 8, 13, 14 and 15. PW 6 is Sajjanrao Late who was an eye witness and has lodged the complaint. PW 7 Padmini is the wife of PW 8 Bhujang Sangale who had given lift to the deceased Bharat on his motor cycle and was assaulted by accused no.2. PW 13 is Namdev Sonawane. PW 14 is Prabhakar Late who is uncle of deceased Bharat and PW 15 is Kamal Gajare, sister of PW 8. PW 1 Kulkarni had drawn the map of the place of offence. PW 2 Dr.Karande had examined Bharat in Civil Hospital, Solapur. PW 5 Dr.Prakash Patil had examined deceased Bharat in civil dispensary at Tuljapur. PW 12 Dr.Sardar had performed autopsy on the dead body and issued the death certificate. The other witnesses are panchas and police officers. The case was investigated by PW 18 PSI Daulatrao Jadhav and PW 21 P.S.I. Kashinath Konnure. PW 17 is Vijay Jadhav, Dy. S.P. to whom written complaint was handed over by the complainant on the basis of which the crime was registered. 6. The defence of the accused was of total denial and false implication. Accused no.1 has filed a written statement (Exh.3) in which he has mentioned that there were two parties in the village and that false complaint was lodged against the accused persons due to previous enmity. After considering the entire evidence on record the trial Court acquitted accused nos.3 to 11 of all the offences with which they were charged by the impugned judgment. The trial Court however, convicted accused nos.1 and 2 for the offence under Section 304 Part II read with Section 34 of IPC and sentenced them to RI for 7 years and to pay a fine of Rs.3000/- in default R.I. for 1 and 1/2 years. They were also convicted for offence under Section 341 read with section 34 of IPC and sentenced to RI for three months and to pay a fine of Rs.250/- in default R.I. for one month. The substantive sentences were directed to run concurrently. 7. Aggrieved by the said decision accused nos.1 and 2 filed Criminal Appeal No.255 of 1988 against the order of conviction and sentence recorded against them by the trial Court. The State on the other hand filed Criminal Appeal No.531 of 1988 against the order of acquittal of all the accused for offence under Section 302 of IPC as well as acquittal in respect of other offences. Thus the order of the trial Court is challenged by both, the State as well as the convicted accused. So far as accused nos.2 and 10 are concerned, they are reported dead and, therefore, Criminal Appeal Nos.255 and 531, both of 1988 abate as regards original accused no.2- Kisan Rama Jadhavar. Accused no.10- Mohan Laxman Jadhavar who is respondent No.10 in Criminal Appeal No.531 of 1988 filed by the State had also died and, therefore, appeal against him had already abated as recorded by the order of this Court dated 26/2/1991. Thus we are concerned with accused no.1 in Criminal Appeal No.255 of 1988 and accused nos.1, 3 to 9 and 11 in Criminal Appeal No.531 of 1988. 8. We have gone through the evidence of the prosecution witnesses with the assistance of the Advocate and have heard both sides at length. Mr.Mane appearing for all the accused persons contended that accused no.1 is entitled to be acquitted of the offences for which he was convicted and the order of acquittal in respect of all the accused deserves to be confirmed. On the other hand the learned APP seeks conviction of all the accused for all the offences with which they were charged including offence of murder under section 302 read with section 149 of IPC. Mr.Mane contended that there was delay in lodging FIR and in recording the statements of the eye witnesses. He argued that the FIR was lodged very late and was concocted. He also contended that false case has been lodged because of the previous enmity between the parties as mentioned in the written statement filed by accused no.1. He lastly contended that in any case there was no intention to murder and, therefore, the accused cannot be convicted for offence of murder but for lesser offence. On the other hand Ms.Bhosale contended that by application of section 149 of IPC all the accused are guilty of offence of murder for the fatal assault made by accused no.1 on deceased Bharat. Alternatively she contended that in any way accused no.1 was liable to be convicted for offence of murder under section 302 of IPC. 9. The trial Court has acquitted accused nos.3 to 11 on the ground that the accused had no intention to kill deceased Bharat but they had assembled only to give beating to Bharat and since the common object of the assembly was not to kill Bharat the other accused cannot be convicted for the assault made on Bharat by accused no.1. Because of some discrepancies and omissions he has not believed the witnesses when they deposed that all the accused had assaulted the deceased. One of the reasons given by him to disbelieve assault by all the eleven accused is that the deceased had not received so many injuries which can be said to be an act of eleven accused persons. The reason given for acquittal of accused nos.1 and 2 for the offence of murder is that accused no.1 cannot be said to have intended to kill Bharat but he can only be attributed the knowledge and, therefore, was liable to be convicted for offence of culpable homicide not amounting to murder. That is how the trial Court has convicted the accused nos.1 and 2 for offence punishable under section 304 Part II and not under section 302 of IPC. 10. Six persons have been examined on behalf of the prosecution as eye witnesses to the incident. PW 6 Sajjanrao Late has lodged complaint (Exh.41) on 7th March 1987 in which he has named all the 11 accused persons. He was also eye witness to the incident. He has deposed about the relationship between some of the accused inter se and stated that accused no.11 Vishwas Chavan was the Sarpanch of Mirzanpur. Accused nos.1 and 4 are brothers, accused nos.9 and 10 are brothers and accused no.2 was the cousin of accused nos.9 and 10. Accused no.8 is the uncle of accused no.3. Accused no.4 was Police Patil of Mirzanpur at the relevant time. Accused no.1 was running a fair price shop in Mirzanpur since previous five to six years. There were complaints filed by the villagers against him as they were not getting proper supply of grains from his shop. Because of the complaints given to the superior officer his licence was suspended and thereafter he obtained stay of the suspension order. The incident had taken place on 6th March 1987 when PW 6 complainant was sitting near Maruti temple along with other witnesses and chitchatting there. He saw the accused beating Bharat Late near the tomb. Accused no.1 was beating Bharat with an iron bar in his hand and accused no.2 with a hunter. He has also named other accused who were beating Bharat with either stick or iron bar and some were pelting stones. He heard accused no.1 saying that Bharat was filing cases against him regarding his ration shop and, therefore, he should be beaten. Bharat fell down because of the assault on him. At that time moped motor cycle of Bhujang Sangale was lying there. Complainant requested the accused not to beat Bharat. He thereafter, along with other persons, took injured Bharat to Tuljapur civil dispensary and thereafter on the advice of doctor took Bharat to Civil Hospital, Solapur. Next day morning he gave written complaint to Dy.S.P. Jadhav. There is corroboration to his deposition from his complaint (Exh.41). 11. Complainant's evidence is also supported by PW 7 Padmini who is wife of PW 8 Bhujang Sangale who had given lift to Bharat on his motor cycle. She had stated that as she saw motor cycle of her husband there she thought that her husband had fallen down and, therefore, she tried to protect him by falling on his body. According to her she also received stick blows from the accused persons as a result of which her bangles were broken and pieces thereof fell at the place of incident. Then there is evidence of PW 8 Bhujang Sangale who deposed about the villagers having complained to the District Supply Officer against accused no.1 which was signed by him also and, therefore, his licence was suspended. Thereafter he obtained stay on the suspension order and again began to conduct his fair price shop. He deposed that his sister Kamal PW 15 came near the school running from her house and told him that there was danger ahead and, therefore, he stopped his motor cycle but in the mean time accused reached there and started assaulting him. He was assaulted with hunter by accused no.2 and thereafter he ran towards Tuljapur side and did not return that night out of fear. He saw some of the accused were chasing him while others were seen by him assaulting deceased Bharat. He has deposed that accused nos.9, 10 and 11 were chasing him while other accused started assaulting Bharat. 12. Then there is evidence of PW 13 Namdev Sonawane who also deposed about complaint lodged against accused no.1 by the villagers. He saw PW 8 Bhujang Sangale and deceased Bharat coming on moped and when they reached near the tomb PW 15 Kamal, sister of Bhujang, came there and thereafter accused persons stopped Bhujang and then they started assaulting Bharat. He also deposed about some of the accused persons chasing Bhujang and that accused no.2 assaulted Bhujang with hunter. He deposed about accused no.1 having iron bar in his hand and instigating others by asking them to catch Bharat and giving two blows with iron bar on Bharat's head and Bharat urging him not to beat him. He had also accompanied complainant Sajjanrao to take Bharat to Tuljapur and thereafter others took him from Tuljapur to Civil Hospital at Solapur. There is also evidence of Prabhakar Late, uncle of Bharat. He seems to have gone to the place of incident after hearing the noise. When he reached there Bharat was lying down in injured condition. He is one of the persons who had taken injured Bharat to Tuljapur. He is the uncle of Bharat. Last eye witness is PW 15 Kamal Gajare who is sister of PW 8 Bhujang. She was told by Bhujang's son Pintu that about 11 persons had gathered near the school building and Kisan and Rama had enquired from him when his father would be returning and that accused no.2 was saying that they would beat Bhujang on that day. Hearing that witness ran towards the school building along with Pintu. When her brother Bhujang came on motor cycle from Tuljapur, she told him not to go ahead as people had gathered to beat him. However, in the mean time accused reached there and started chasing Bhujang and beating Bharat. She has deposed that accused no.1 dealt blow with iron bar on the head of Bharat. She has further deposed that accused no.1 was asking others to beat Bharat and not to leave him and that Bharat was complaining against his ration shop and, therefore, he should not go back alive. 13. Thus there are eye witnesses to the incident. At least four of the six aforesaid witnesses have clearly witnessed the incident of assault from its inception and they have deposed about accused no.1 assaulting deceased Bharat on head with iron bar. Accused no.1 was heard saying that Bharat had complained against his running ration shop and, therefore, he should not be left alive. The witnesses have also spoken about the motive. PW 14 Prabhakar Late, uncle of Bhujang has deposed that Bharat had taken lead in complaining against the shop of accused no.1. May be the other accused persons may have come to the aid of accused no.1 at that time because of the previous political rivalry but it was mainly accused no.1 who wanted to assault Bhujang and Bharat because of the complaints lodged against his ration shop as a result of which his licence was suspended. At the time of incident he had said that Bharat was complaining against him and, therefore, not to leave him. It was he who had dealt blows with iron rod on the head of Bharat. Thus the motive of accused no.1 in assaulting deceased Bharat and the evidence of the eye witnesses that it was accused no.1 who assaulted Bharat with iron rod on his head does not leave any manner of doubt about the role played by accused no.1. 14. The medical evidence led by the prosecution shows that it was the assault on the head of the deceased that was the cause of death of Bharat. To begin with PW 5 Dr.Patil who had examined Bharat in Civil Dispensary at Tuljapur at 8 p.m. on 6th March 1987 has deposed that following seven injuries were noticed on the person of Bharat: (1) C.L.W. right temporal parietal region 2" x 1". (2) Abradded contusion 2" x on right forearm 2" x 1". (3) Abradded contusion left lumber region (horizontal) 6" x 1". (4) Contusion right scapula medial size (horizontal) 4" x 1". (5) Abrasion verticle right lumbar region 6" x 1/4". (6) Abrasion right thigh ant. 1" x 1". (7) Abrasion left thigh anteribal middle 1/2" x 1/4". Those injuries were caused by hard and blunt object within six hours and could be caused with stick, iron bar etc. He had referred the patient to Civil Hospital, Solapur. 15. In Civil Hospital, Solapur Bharat was examined by Dr.Karande PW 2. He had examined the patient at about 11-40 p.m. on the date of incident. According to him the patient was in semi conscious condition when he was brought to the hospital and he was serious. He found eight injuries on his person. According to him out of the eight injuries mentioned by him injury nos.5 and 6 could be caused by hard and blunt object. He has deposed that there were blood clots in the brain and the clotting of blood was due to injury nos.5 and 6 which were sufficient in the ordinary course of nature to cause the death as there was internal bleeding and clotting of blood. There was also fracture of left ulna. Injury nos.5 and 6 as per his report are as follows: (5)CLW over right parietal region 2 1/2" x 2" scalp deep bleeding present. (6) Haematoma over occipital region 1/2" in diameter. This doctor has deposed that haematoma could not be due to any other reason except the injury nos.5 and 6. He has further deposed that injury nos.5 and 6 could be caused by iron bar or stick like article nos.16 and 17 shown to him. Thus the evidence of eye witnesses has been sufficiently corroborated by the medical evidence. None of the witnesses have attributed assault on Bharat on his head except by accused no.1 with iron bar. The injuries received by Bharat on his head were the cause of his death. The prosecution has proved the motive. As per the deposition of P.W.14 it was Bharat who had taken leading part in complaining against accused no.1 as regards his irregularities or for not supplying proper food grains through his ration shop. The words uttered by accused no.1 at the time of assaulting him go clearly to show that he had animus or motive against Bharat because of the complaints lodged by him against accused no.1 and, therefore, he did not want to leave Bharat alive at that place. 16. There is also evidence of another doctor PW 12 Dr.Sardar who performed autopsy on the dead body. He had mentioned following six injuries noticed by him on the dead body. According to him cause of death was due to shock and hemorrhage due to extradural and subdural haemotoma compressing the brain. (1) Burrhole sutured wound on both tempro parital region, Right Burrhole sutured wound 5 inch, left burrhole 3 inch sutured wound. (2) Contusion occipital region 1/2 inch. (3) Abrasion on right thigh 1" black coloured. (4) Abrasion on right illoc fossa 2 inch. (5) Abrasion on right scapula region 1" x 1/2". (6) Fracture of left ulna middle 1/3. Thus according to this doctor Bharat had wounds on temporal as well as occipital region and there was contusion on occipital region 1/2 inch. There was also fracture of left ulna middle 1/3. He also found following injuries on internal examination: (1) Hamatoma under scalp on both temporo parital and occipital region Brain:- Extra dural and sub dural haematoma on both tempo parital and occipital region. According to him internal injuries were corresponding to external injury nos.1 and 2. In his opinion injury nos.1 and 2 along with internal injuries were sufficient in the ordinary course of nature to cause the death of Bharat. 17. Thus the injury caused by accused no.1 was sufficient in the ordinary course of nature to cause death of Bharat. There is evidence of eye witnesses not one but at least four eye witnesses to the assault on the deceased and the other two witnesses having seen accused no.1 at the place of incident who had reached at the spot immediately after Bharat had fallen down due to the head injury caused to him. The evidence of eye witnesses is corroborated by the medical evidence as well as FIR lodged by PW 6 and there is evidence of motive led by the prosecution. The argument that because of the previous enmity and the political rivalry the witnesses had filed false complaint against all the accused is difficult to believe. On the contrary the complaints against the Ration shop of accused no.1 which seem to have mainly motivated him to assault Bharat constitutes motive for the aforesaid offence. The criticism made by the defence Advocate about the late filing of FIR and that the real FIR must have been replaced by Exhibit 41 is absolutely without any substance and foundation. The argument that on the date of the incident the police constable had gone to the place of incident yet no complaint was lodged with him is also devoid of any substance.