1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.293 OF 2008 1. Nandlal S/o.Arjun Baviskar, Age-30 years, Occu-Nil, 2. Parshuram S/o.Arjun Baviskar, Age-50 years, Occu-Agriculture, 3. Sanjay S/o.Parshuram Baviskar, Age-20 years, Occu-Agriculture, All R/o. Pungaon, Tal.Amalner, Dist. Jalgaon. APPELLANT VERSUS The State of Maharashtra RESPONDENT Smt.S.S.Jadhav, learned counsel for the appellants. Mr.D.R.Kale, learned A.P.P. for State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 26/08/2010 ORAL ORDER : (Per A.V.Potdar, J.) 1. The appellants in this appeal were convicted in Sessions Case No.31/2006 for the offence punishable u/s. 302 r/w. 34 of The IPC and sentenced to suffer imprisonment for life and to pay fine in the sum of Rs.500/- each in default sentence to suffer further rigorous imprisonment for 3 months, vide judgment and order dated 2 10/04/2008. The appellants have questioned the legality of this judgment and order by way of present appeal. 2. We have heard learned counsel for appellants and learned A.P.P. for State. 3. Such of the facts which are necessary for the just decision in this appeal can be summarized as follows : First appellant Nandlal Baviskar and one Dilip Waman Baviskar are close relatives and residing at Pungaon. Somewhere in the year 2005, Dilip constructed a common wall in between his premises and the premises of said Nandlal. Dilip had incurred total expenses of the construction of wall, and then demanded 1/2 of the expenses from said Nandlal. As Nandlal had denied to pay half of the expenses incurred by Dilip for the construction of wall, frequently quarrel took place between Dilip and Nandlal. On 16/05/2006, at around 4.00 p.m., exchange of abuse took place between Dilip, his wife namely Sakhubai and Nandlal, hence son of Dilip, Ganesh called one Gopichand Waman Baviskar. Accordingly, Gopichand and his brother Lakhichand (deceased) went to the residence of Dilip. They noticed that exchange of abuse was going on between Dilip and Nandlal. They tried to pacify the situation. In that process, Lakhichand had also abused Nandlal. Nandlal get annoyed and assaulted Lakhichand and also abused Gopichand. Being annoyed by the said assault, Gopichand gave stick blow on the head of the Nandlal. This Lakhichand was physically disabled person. Thereafter, Nandlal ran 3 away from the spot, and went to his residence and returned alongwith Parshuram and son of Parshuram namely Sanjay. Nandlal was armed with a gupti, while Parshuram was armed with ballam and Sanjay was armed with stick. When Gopichand, Dilip and Lakhichand saw appellants approaching towards them, having weapons in their hand, at that time, they were in front of the house of one Sunil and the time was around 4.15 p.m. Gopichand and Dilip went at one side, but because of physical disability, Lakhichand was not quick enough to move. At that time, Nandlal assaulted Lakhichand with gupti on his left armpit. Parshuram assaulted Lakhichand with ballam while Sanjay assaulted him with stick. Due to said assault, Lakhichand sustained bleeding injuries on his chest, left armpit and became unconscious. On seeing this scenario, appellants left the spot. Gopichand, his sister in law Sakhubai and others took Lakhichand to Government Hospital, Adawad, where after examination, he was declared dead. The incident was reported by Gopichand in Adawad Police Station. On the basis of this report, an offence was registered vide CR No.16/2006. Dead body of Lakhichand was sent for post mortem. Dr.Dattatraya Kalidas Birajdar conducted post mortem on the dead body of Lakhichand on 17/05/2006. At that time, he noticed following external and internal injuries on the person of Lakhichand : 1) Stab wound directed to fourth intercastal space and directly pierces through left lung. 2) Rupture of left lung vasculture present. 3) Rupture of axillary artery causing heavy bleeding. 4 4) Fracture of fourth rib present. 5) size of stab wound : 2 x 2 x 18 cm. 6) Heavy bleeding in left lung and in left chest present. According to him, death of deceased was caused due to Respiratory distress and shock due to heavy blood loss, due to heavy stab wound by pointed sharp object. A.P.I.Abhiman Pawar carried out the investigation in this CR. During the investigation, he had prepared the inquest panchnama of the dead body of Lakhichand (Exh.31). He had prepared spot panchnama (Exh.33) on 17/05/2006. He had recorded the statements of 10 witnesses. Witness Dnyandeo Baliram Baviskar produced the ballam, which he had snatched from the hands of appellant Parshuram, which was seized under the seizure panchnama (Exh.66). On 17/05/2006 itself, all the 3 appellants were put under arrest under the arrest panchnama (Exh.34 to 36). While conducting post mortem on the dead body of Lakhichand, clothes on his person were removed by the Medical Officer, which were collected by Constable Wankhede and produced in the Police Station which were seized under the panchnama prepared on 17/05/2006 itself. While the appellants were put under arrest, clothes on their person were also taken in charge under 3 different panchnamas (Exh.37 to Exh.39). On 18/05/2006, first appellant made voluntary disclosure in presence of panch witnesses Exh.50 and infurtherance of the said disclosure statement, he pointed out the place where he has concealed the gupti used by him in the offence, which was recovered in presence of panch witnesses and 5 seized under the panchnama Exh.67. Blood of the deceased was collected while conducting post mortem, and blood of the appellants was collected during the investigation and the articles seized under different memorandums were sent for chemical examination. After completion of investigation, charge sheet was filed against the appellants in the Court of J.M.F.C. Chopda. As the alleged offences charged against the appellants are exclusively triable by the Court of Sessions, after passing requisite committal order, the trial against appellants was committed to the Court of Sessions, Amalner. 4. To substantiate the charges lavelled against the appellants, prosecution had examined in all 16 witnesses including 4 eye witnesses i.e. Gopichand P.W.No.1, Sakhubai P.W.No.4, Ganesh P.W.No.5, and Mirabai P.W.No.8, the panch witnesses, and the medical officer who had conducted autopsy on the dead body of deceased Lakhichand. Like oral evidence, prosecution had also tendered various documents, like post mortem report, CA report. Defence of the appellants before the trial court was of total denial. Considering the evidence against the appellants, learned Trial Court was pleased to convict them for the charges lavelled against them and sentenced to suffer life imprisonment, and to pay fine in the sum of Rs.500/-, in default to suffer further rigorous imprisonment for 3 months. Legality of the said judgment is impugned in this appeal. 5. Considering the submissions of learned counsel for appellants and learned APP, it appears that the judgment of conviction is based 6 on the oral evidence of 4 eye witnesses i.e. Gopichand P.W.No.1, Sakhubai P.W.No.4, Ganesh P.W.No.5, and Mirabai P.W.No.8 coupled with the medical evidence given by the P.W.No.12 Dattatraya Birajdar, who had conducted autopsy on the dead body of deceased Lakhichand, as well as the C.A. reports received about the articles seized during the investigation and referred for opinion. 6. It transpired from the evidence of Gopichand Waman Baviskar (Exh.28), who is the complainant as well as the eye witness in this case that he is the real brother of deceased Lakhichand as well as Dilip. First accused Nandlal is his cousin uncle. 2 years before the alleged incident dated 16/05/2006, one common wall was constructed between the premises of Dilip and the first accused Nandlal. All the construction expenses were incurred by Dilip at that time. It was agreed that the first accused Nandlal will share 1/2 of the construction expenses which he has partly paid. On the date of incident, i.e. on 16/05/2006, at about 4.00 p.m., Ganesh i.e. Son of Dilip, prosecution witness no.5 came to call him as wife of Dilip, Sakhubai, P.W.No.4 pass on message to call him because of exchange of abuse was in progress in between Dilip and Nandlal. After Gopichand reached at the residence of Dilip alongwith Lakhichand, he tried to pacify the situation. During that process, Lakhichand abused Nandlal, hence Nandlal assaulted on the back of the Lakhichand. Due to that, Gopichand gave one blow of stick on the head of Nandlal. Nandlal ran away from the spot and proceeded to the area known as Deowada. Within meantime, Goipichand, 7 Lakhichand and Dilip were proceeded on the road and were present in front of the house of one Sunil Raghunath. They noticed that accused Nandlal, Parshuram and Sanjay were proceeding towards them. Nandlal was holding Gupti in his hand, Parshuram was having ballam in his hand, while Sanjay was holding stick in his hand. The time was around 4.15 p.m. When Gopichand, Lakhichand and Dilip saw these appellants accused approaching towards them, they tried to run away from the spot, but Lakhichand could not move quickly from the spot because of his physical disability. Nandlal gave blow of Gupti on the left side armpit of Lakhichand, while Parshuram assaulted Lakhichand with Ballam in his hand and Sanjay assaulted Lakhichand with stick in his hand. Due to the said assault, Lakhichand fall on the ground and became unconscious, due to bleeding injuries. The appellants ran away from the spot after seeing that the Lakhichand became unconscious. Gopichand, Sakhubai (P.W.No.4), and others shifted Lakhichand to the Government Hospital, Adawad where on examination, he was declared to be dead. Thereafter, Gopichand lodged the complaint in Adawad Police Station (Exh.29). On the basis of this complaint, the offence was registered against these appellants. He identified the complaint Exh.29, before the Court, as lodged by him. He also identified Article no.15 Gupti before the Court as the same by which first appellant assaulted Lakhichand. He has also identified the Ballam before the Court as the weapon used by Parshuram. In the Cross examination of Gopichand, he has admitted that 8 the wall in question was constructed prior to 2 years of the incident dated 16/05/2006. But, he has no knowledge whether any document was executed to that effect as to how to share the expenses of construction of the said wall. He has also admitted that relation between the appellant no.2 and 3 is of father and son and they are R/o. Deowada. There is no dispute between appellant no.2 and 3 and Dilip before the date of incident. He has also admitted that the house of Dilip and Nandlal are situated by the side of the road which proceeded to Mitawali village. According to him, house of Sunil Raghunath is situated at the distance of about 80-90 ft. from the residence of Dilip and at the distance of 5-7 ft. from the road. He has also admitted that house of one Jagan Manga and Atmaram Lalchand are situated by the house of this Sunil. The defence has tried to bring on record some omissions in the cross examination of this witness, as to whether appellant no.1 proceeded to the house of his brother on motor-bike or he walked towards the house of his brother, as he returned within a short span alongwith appellant no.2 and appellant no.3. It is tried to suggest that Lakhichand was in a position to walk without any support, but witness volunteers that Lakhichand used to walk by keeping his one hand on the knee of his leg. Suggestions were given in the cross examination of this witness that during the scuffle, Lakhichand fall on the peg installed to tie the cattles, and sustained injuries, which was denied by this witness. Thus from the cross examination of this witness, one fact is clear that at the time of alleged incident, presence of these appellants is not disputed. 9 7. The next important eye witness is P.W.No.4 Sakhubai, wife of Dilip. It transpired in the evidence of this witness that there was dispute over the expenses of construction of the wall between Dilip and the first appellant Nandlal. On the day of incident, her husband Dilip had called to village Dambhurni from where he returned at about 4.00 p.m. and at Dambhurni, Nandlal, first appellant met Dilip, where on demand of the amount from Nandlal, Nandlal had abused Dilip. On that count, she started abusing Nandlal. At the same time, she sent her son Ganesh to call Gopichand (P.W.No.1) who came at the spot with Lakhichand. She has also narrated that initially Nandlal and Lakhichand tried to pacify the quarrel. In that process, Gopichand gave stick blow on the head of Nandlal. Due to that, Nandlal sustained head injury and he went towards his house. When Nandlal, Parshuram and Sanjay returned alongwith the weapons in their hand, at that time, Gopichand, Lakhichand and her husband were present near the house of one Sunil Raghunath. She also noticed that Nandlal was having Gupti in his hand while Parshuram was having Ballam and Sanjay was having stick in his hand. According to her, Nandlal gave blow of Gupti in the leftside armpit of Lakhichand while Parshuram assaulted Lakhichand with Ballam and Sanjay assaulted Lakhichand with stick. Due to assault, Lakhichand fall on the ground, then appellants ran away from the spot. She accompanied Gopichand and others who took Lakhichand to Government Hospital, Adawad where after examination, Lakhichand was declared dead. She also identified Article No.15 10 Gupti before the Court as the weapon in the hand of first appellant by which he assaulted Lakhichand. She has also identified Article No.3 Ballam before the Court as the weapon in the hand of Parshuram. In her cross examination, she has admitted that at the time of incident of exchange of abuse, she herself and her husband were present in their house while Nandlal was present in his house. She has further admitted that on arrival of Lakhichand and Gopichand, where they were informed about the alleged incident. In her cross examination, she was also suggested that Nandlal, went to his house on motor-bike and returned within 5 minutes alongwith other appellants who were armed with the weapons. At the time of first incident, she was at the distance of 3-4 feet while she was at close distance at the time of second incident of assault on Lakhichand. According to her, the incident of assault on Lakhichand was going on for 5 minutes. Thus, in her cross examination, evidence given on the material point was not shakened. 8. Evidence of P.W.No.5 Ganesh is material on the point that as per instructions of his mother Sakhubai, P.W.No.4, he went to call P.W.No.1 Gopichand, his uncle and then Gopichand came at the spot alongwith Lakhichand, the deceased. In his evidence, he has also narrated about the incident of assault on Lakhichand at the hands of first applicant with the help of Gupti. He identified Article 15 before the Lower Court as a Gupti, the weapon used by the first applicant. He also identified article 3 Ballam as the weapon in the hands of the 11 2nd applicant. The material cross examination of this witness is on the point that when he went to call Gopichand and deceased Lakhichand, at that time his grand parents were present at his residence which fact is not supported by any other witness. But only on that count, his entire evidence can not be discarded. 9. One more eye witness Mirabai Bhagirath Baviskar is examined by the prosecution who is prosecution witness no.8. But, her evidence need not be discussed, as she has witnessed the incident from far distance and unable to give the details of the incident. 10. After the evidence of the material eye witnesses was over, it is necessary to consider the evidence given by P.W.No.12 Dr.Dattatraya Birajdar, who has conducted the post mortem on the dead body of Lakhichand in the early hours of 17/05/2006. He had noticed external and internal injuries during the autopsy as mentioned and cited in paragraph no.3. Through this witness, prosecution has proved the post mortem report at Exh. 54. During the evidence of this witness, Article 15 Gupti was shown to him and according to him, the injuries mentioned in coloumn no.17 of the post mortem report can be possible due to assault by Article 15 referred and shown to him. In the cross examination of this witness, suggestions were given that injuries in coloumn no.17 can be possible due to fall on the pointed and projected object, which is denied by this witness. While explaining the dimensions of the injuries found on the person of the deceased, he has made it clear that even though the blade of 12 the Article 15 is blunt and another end is sharp but considering the description of the injury, it is to be inferred that much force was used while causing injury with Article 15. So far as the other suggestions put to this witness in his cross examination are concerned, they are not material to be discussed at length. 11. Evidence of P.W.No.3 Bhaskar Atmaram Baviskar, the panch witness to the panchnama of the scene of offence (Exh.33), the panchnama of arrest of 3 appellants Exh.34 to 36, panchnama of seizure of clothes on the person of the accused Exh.37 to 39 and the clothes on the person of the deceased Exh.40 which panchnamas were prepared on 17/05/2006 coupled with identification of Article no.4,5,6,7 before the Court as the clothes of the deceased which were stained with blood and Article 8,9,10 clothes on the person of the first appellant which were stained with blood at the time of panchnama. The panchnama at Exh.39 is material as in the cross examination of the material eye witnesses as well as in the statement u/s. 313 of The Cr.P.C., this accused/first appellant have nowhere explained as to how the blood was transferred on his person. The CA reports to that effect indicate that the blood found on the clothes of the first appellant is a human blood. 12. The C.A. report of the articles sent for chemical examination is at Exh.62 which shows that blood found on the clothes of the deceased Exh.H to L, the blood found on the clothes of the first appellant Exh.M, N and O is a human blood. Even though the 13 panch witness to the recovery of Gupti turned hostile, but the said panchnama was got proved through the Investigation Officer and the blood found on the Gupti was found as a human blood. 13. In the light of this evidence of the eye witnesses discussed in above paragraphs, as well as the available medical evidence, it is submitted across the bar that on going through the post mortem report, and the medical evidence given by P.W.No.12, it nowhere discloses any injury found on the person of the deceased at the time of autopsy conducted on the dead body, which was caused due to weapon like Ballam or stick. The injuries which are found on the person of the deceased are the injuries caused due to sharp edged weapon. In the premise, it is urged that the evidence given by the eye witnesses to the effect that victim Lakhichand was assaulted by appellant no.2 and 3, is not supported by the medical evidence, hence benefit of doubt may be given to appellant no.2 and 3 as their mere presence is not sufficient to attract the provisions of section 34 of The Evidence Act to convict them for the offence punishable u/s. 302 r/w. 34 of The IPC. 14. It is also urged on behalf of the appellants that considering the nature of injuries found on the person of deceased Lakhichand as well as the evidence of the eye witnesses that the assault by the first appellant Nandlal is on the left arm pit and considering the direction of the injuries found on the person of the deceased as projected in the diagram shown below coloumn no.17 of the post mortem notes 14 Exh.54, it is to be inferred that there was no intention to kill Lakhichand at the hands of first appellant, then his conviction u/s. 302 of The IPC to be reduced to lesser sentence. 15. In his submissions across the bar, learned APP supports the judgment as well as the reasoning given by the Trial Court in support of conviction of all the appellants for the offence punishable u/s. 302 r/w. 34 of The IPC. According to him, even though there are no visible injury marks on the person of the deceased, due to assault by Ballam or stick, the intention of all the appellants is clear, considering the way and manner Lakhichand was assaulted by them, hence no interference is required in the judgment and order of conviction passed by the Lower Court. 16. After giving consideration to the submissions across the bar, at the first instance, we require to consider the injuries noticed in coloumn no.17 of Exh.54, the post mortem notes. As the muddemal property was produced before this Court, we have an occasion to see the gupti, the weapon used by the first appellant to assault Lakhichand which was marked as Article 15 before the Lower Court. Article 15 is a lethal weapon. It looks like a mini sword. Considering the length of the weapon and the sharp point of the weapon, we have to consider the evidence of P.W.No.12 Dr.Birajdar. The diagram shown below coloumn no.17 of Exh.54, the post mortem notes, clearly indicates that initially the stab wound pierced through the upper end of left arm and then entered in the chest by causing 15 small fracture to the 4th rib, then it reached till the lung and then the vascular rupture was caused due to this stab injury. Considering the length and depth of this injury, there is no doubt in our mind about the force used while causing this injury to Lakhichand by appellant no.1. There is also no doubt in our mind that death of Lakhichand was caused due to this injury. The corresponding injuries shown in coloumn no.20 of the post mortem notes shows chest wall of left side heavy bulged, left lung ruptured, and heavy bleeding present and large vessels of left axillary artey ruptured. The cause of death also due to heavy stab wound causing left lung vascular rupture causing respiratory distress and due to rupture of axillary artey causing heavy bleeding leading to shock. This Respiratory Distress and shock due to heavy blood loss caused death of the deceased. We are not in agreement with the submissions of learned counsel appearing for the appellants that there was no intention on the part of first appellant to cause death of the deceased Lakhichand by causing this injury. According to us, the act of the first appellant covers under thirdly of section 300 of The IPC. 17. Further perusal of the record shows that even though it is disclosed from the evidence of eye witnesses that appellant no.2 and 3 assaulted the deceased Lakhichand with Ballam and stick in their hand, but this evidence given by the eye witnesses do not support by the medical evidence at Exh.54, as it is totally silent on the aspect that no injury found on the person of the deceased which was caused 16 due to assault by Ballam and stick. Even though it was vehemently urged by the learned APP that appellant no.2 and 3 be held guilty for the offence punishable u/s. 302 r/w. 34 of The IPC, this Court have to take note that the incident dated 16/05/2006 is in two parts. Initially the incident took place near the house of Dilip. Thereafter, deceased and Gopichand reached at the spot. At that time, admittedly, these appellant no.2 and 3 were not present. Thereafter, within 15 mintues, when the deceased, Gopichand and Dilip reached in front of house of Sunil, these appellants reached there alongwith first appellant. It itself shows that there was no common intention of appellant no.2 and 3 to cause bodily injuries to deceased Lakhichand, which may result in his death. In the premise, considering the overall effect of the oral and documentary evidence