appeal 610/2004 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.610/2004 1 Sampat Damu Jadhav,Age-35 yrs. 2 Jyotiram Dnyandev Jadhav,Age-40 yrs. 3 Balbhim Sopan Jadhav,Age 32 yrs. 4 Dattu Dnyandev Jadhav,Age-45yrs. 5 Raghu Dhondiba Jadhav,Age 50 yrs. 6 Balu Shivram Jadhav,Age-40yrs. 7 Subhash Sopan Jadhav, Age-40 yrs. 8 Baban Ganpat Jadhav, Age-60 yrs. 9 Ankush Murlidhar Jadhav,Age-42 yrs. Appellants [All residing at Ekshiv Ori.Accd. Jadhavwadi,Tal. Malshiras,Dist. 1 to 5 & Solapur]. 7,10,11 & 17 Vs. 1 The State of Maharashtra Respondents 2 Radhabai Shankar Jadhav, R/o Ekshiv, Jadhavwadi ,Tal. Malshiras,Dist.Solapur 3 Nanda Shrimant Jadhav, R/o Ekshiv, Jadhavwadi ,Tal. Malshiras,Dist.Solapur Mr.A.P.Mundargi,Sr.Adv.i/b Mr.R.S.Katre for appellant nos. 1,2,4,5,& 8 (Ori.accused no.1,2,4,5 & 11) Mr.D.G.Khamkar for Appellant nos.3 & 7/Ori.Accused 3 and 10 Mr.Indrajeet Kulkarni i/b ALMT Legal for Appellant nos.6 and 9/ Ori.Accused nos.7 and 17) Ms.V.R.Bhosale,APP for State appeal 610/2004 2 Coram-P.B.Majmudar, And Mrs.Mridula Bhatkar,JJ. Date- 28th July,2011 & 29th July,2011. ORAL JUDGMENT (Per Mrs.Mridula Bhatkar,J.) . This appeal is filed against the judgment and order of conviction dated 16/4/2004 passed by the 3rd Additional Sessions Judge, Pandharpur. In this case in all 17 accused were charged for the offence punishable under sections 143,147,148,and 302 r/w 149 of the Indian Penal Code for committing murder of two persons namely Shrimant Jadhav and Shankar Jadhav. 2 The incident had taken place on 5/8/1990 in the field of the deceased. There was dispute in respect of the boundaries between the field of the deceased and the family of accused no.4. On the date of the incident the deceased and his family members were planting sugarcane bulbs in their field. At that time accused no.1 who was standing on the Bund gave challenge to the deceased and objected the demarcation of the field of the deceased and the accused. The deceased did not pay any attention to accused no.4. However,in a appeal 610/2004 3 short time accused no.4 alongwith other 17 accused came to the spot. The accused were armed with axe, gupti, sticks, and knives. They assaulted deceased Shrimant and Shankar. At the time of the incident Radhabai, wife of Shankar and Nanda, daughter of Shrimant were present alongwith their family members and they witnessed that accused no.4 had thrown chilly powder in the eyes of the deceased and accused nos.1 and 2 gave axe blows on the person of the deceased, accused no.3 inflicted gupti blow on both the deceased and other accused assaulted both the deceased. Shrimant died on the spot due to the assault. Dead body of Shrimant alongwith injured Shankar was taken to Primary Health Centre at Natepute. Treatment was given to Shankar. Shankar gave his statement which was treated as F.I.R. by the police of Malshiras police station and the crime was registered as C.R.No.96/90 by the P.S.O., P.W.12. While shifting Shankar to Sasoon Hospital at Solapur, he breathed his last. Postmortem of both the deceased was conducted at Civil Hospital, Solapur. The police registered the offence u/s 302 of the Indian Penal Code against the accused persons on the basis of the F.I.R.of deceased Shankar. The police recorded statements of Radhabai, Nanda and also other witnesses. They drew the panchanamas on the appeal 610/2004 4 same day, arrested the accused on the next day and recovered weapons at the instance of the accused. They also seized their blood stained clothes and after completion of the investigation they filed chargesheet. The case was committed to the Court of Sessions The learned Sessions Judge framed charges against the accused. The accused did not plead guilty and claimed to be tried. Accused by name Dada expired prior to framing of the charge and, therefore, the trial was faced by 17 accused which ended in conviction of 9 accused and 8 accused were acquitted. Accused nos. 1,2,3,4,5,7,10,11and 17 were convicted and were sentenced to suffer life imprisonment for the offence punishable u/s 302 r/w sec.149 of the Indian Penal Code. They were also convicted for the offence punishable under sections 143,147 and 148 of the Indian Penal Code and different sentences were awarded to them under these heads. They were also sentenced to pay fine of Rs.5,000/- each and out of the fine amount, if realised, amount of Rs.25,000/- was ordered to be paid as compensation to P.W.1 Radhabai and P.W.2 Nanda. 3 Learned counsel appearing for the accused has submitted that evidence of eye witnesses (P.W.1 & P.W.2) is not believable. The appeal 610/2004 5 incident had taken place in the year 1990 and the evidence of P.W.2 was recorded in the year 2003 . Thus,in the year 1990 she was hardly of 10-11 years old. Both P.W.1 & P.W.2 have given a ditto version about the occurrence. They both have stated that accused no.1 threw chilly powder in the eyes of Shankar and Shrimant. However, no remnants were found either in the panchanama or in the postmortem. Therefore, the evidence of these two witnesses that the particular incident had occurred in that manner is doubtful. There is variance in the ocular evidence and medical evidence. As per the evidence of the eye witnesses, accused no.4 threw chilly powder in the eyes of the deceased. Thereafter accused no.1,Sampat gave axe blows on both the legs,chest and right elbow joint of Shrimant. Accused no.2 gave axe blows on right leg near left ear and on the back of Shankar. Accused no.3 caused stab injuries with gupti to Shankar and Shrimant. The remaining accused were armed with sticks and they gave stick blows to Shankar and Shrimant. Both these witnesses though have described the actual assault, medical evidence is also required to be seen. Learned defence counsel has further submitted that P.W.6 Dr.Nandkumar had conducted postmortem on Shrimant. He found injuries as follows. appeal 610/2004 6 1 C.L.W. over right shin of tibia on lower 1/3rd part,2 cm.x 1 cm.bone deep ; 2 Incised wound over right elbow joint 2 cm.x 1 cm.and skin deep ; 3 Incised wound over right elbow joint 2 cm x 1 cm just below injury no.2 with swelling ; 4 Two abrasions over both sides of chest each of 2 cm. X 2 cms.size ; 5 Contusion over right shoulder trangular about 1 cm. X 1 cm. blackish in colour ; 6 Two contusions over back about 6 cm. X 2 cm. Blackish. 4 Cause of death of Shrimant was opined as death due to shock due to fracture of tibia fibula of both lower limbs. It is further submitted that postmortem of Shankar was conducted by P.W.9 Subhashchandra. He has opined that there were C.L.W.on lateral aspect of left humerus and fracture of right petalla bone. There was a fracture of ribs at right side 6,7,8 & 9 and on the back side at 9,10,and 11. He has opined that Shankar died due to shock and haemorrhage due to injury to lungs, liver and fracture of ribs. The learned counsel appeal 610/2004 7 further submitted that none of the injuries on the body was found on the vital part such as, on head or chest, but all the injuries were mainly on shoulder or ribs,back and on the lower limbs. While analysing the assault and the role attributed to the accused by the eye witnesses and the actual incident it was pointed out that both the witnesses deposed that axe blows were inflicted by accused nos. 1 and 2, however, the axe blows were not found on the body of Shankar, but only C.L.Ws. were found. It shows that the eye witnesses who have attributed a role of giving axe blows to accused no.2 on the left ear or back of Shankar, is falsified by the medical evidence. It is further submitted that the medical officer P.W.9 Dr. Subhashchandra has given admission that, if the blow is given by gupti then puncture wound is possible, however, no puncture wound is found on their bodies. It is submitted that the evidence of both the eye witnesses that accused no.1 assaulted Shankar and Shrimant by means of gupti is false. These eye witnesses cannot be believed as there is glaring discrepancy in their evidence and the evidence of medical officer. In absence of corroboration by the medical officer their evidence cannot be believed. Learned counsel further argued that P.W.1 and P.W.2 in their evidence before the Court did not state the appeal 610/2004 8 names of all the accused except accused nos.1,2,3 and 4. Therefore, the possibility of the false implication of other accused cannot be overruled. It is argued that other accused, besides accused nos. 1,2,3,4 were falsely roped in this case only on the basis of the dying declaration i.e. the statement of deceased Shankar. The statement at Exh.54,dated 5/8/1990, was immediately recorded after the incident, by A.S.I. Patil, P.W.13, and Constable Jadhav was the scribe. The manner in which the statement was recorded shows that it is not antemortem but after the death of Shankar, the statement was recorded by the police in consultation with the eye witnesses and the family members of the deceased. The learned counsel while assailing this statement pointed out the evidence of P.W.5 Prakash who is examined by the prosecution as a person who arrived on the spot immediately after the incident. Prakash is one who has stated that after the incident he saw Shankar and Shrimant injured in the field and he saw that Laxman, one of the family members, was giving drinking water to them. He enquired with Shankar as to what happened, at that time Shankar informed him that Sampat and other had assaulted him. Shrimant also said that he was beaten by accused no.1 and others. The learned counsel pointed out that P.W.5 is a appeal 610/2004 9 planted witness as in cross examination he admitted that he neither helped the family members of the deceased to take the deceased in the hospital nor did he go to the police station to lodge the complaint which normal behaviour is expected from any neighbour or any person immediately rushing to the spot. Prakash is planted only to give false evidence in respect of oral dying declaration of Shankar and Shrimant. 5 Learned counsel appearing for accused nos.3 and 10 submitted that as there was no puncture wound on the body of the deceased, evidence of P.W.1 and P.W.2 is not reliable on the point of assault and presence of accused no.3 is doubtful. It is submitted that name of accused no.10, Subhash, was not mentioned by P.W.1 and 2 and he is wrongfully convicted only on the basis of F.I.R. Exh.54, F.I.R., wherein Shankar has disclosed his name. It is argued that there is no such recovery from accused no.10. 6 Mr.Kulkarni, learned counsel appearing for accused nos.7 and 17 has submitted that accused nos.7 and 17 in fact are entitled to acquittal only on the basis of parity. He compared the evidence appeal 610/2004 10 against accused nos. 7 and 17 with the evidence which was produced by the prosecution against accused no.8,9 and 6 who were acquitted. The learned counsel further submitted that the names of accused nos. 7 and 17 were not mentioned by P.W.1 and 2 in their evidence and as per the evidence of these two witnesses accused nos. 7 and 17 were armed with sticks and they assaulted the deceased with sticks. However, no specific role is attributed to them. The prosecution has relied on the evidence of P.W.7 . The prosecution has proved the arrest of 11 accused and also proved seizure of clothes as per the panchanama,Exh. 34. It is submitted that as per the panchanamas blood stained clothes were found on Ekanath Jadhav, accused no.9 , Arjun Jadhav Accused no.6 and no blood stained clothes were found or seized on the person of accused nos.7 and 17. Blood stained clothes were not recovered from accused no.17 and were found only on the person of accused no.7. However, accused nos.9 and 6 were acquitted and accused no.17 against whom the same evidence was tendered and proved by the prosecution is convicted. Thus, it is submitted that the accused in fact are falsely implicated and no case is proved against them. The learned counsel alternatively advanced an argument that considering the nature of the wounds and nature of appeal 610/2004 11 injuries caused to the deceased on the parts of body, this is not a case of murder falling under section 302 of the Indian Penal Code, but it is a case of culpable homicide not amounting to murder. The accused persons never intended to kill the deceased. They did not inflict the blows on the head of the accused, but the injuries were caused to the deceased on limbs, lower part or on the hands or shoulder. Therefore, it is a case which squarely falls under section 304 Part II of the Indian Penal Code i.e. the accused were not having intention to kill the deceased. 7 Learned A.P.P., while opposing this appeal, has submitted that all the accused were charged under section 143, 147,149 of the Indian Penal Code and this fact is to be taken into account by the Court. All the accused were the members of unlawful assembly and had common intention to kill the deceased. She submitted that the incident had taken place on 5/8/1990 but as per the evidence of P.W.1, some quarrel had taken place earlier between the family of the deceased and the accused persons. Quarrel on the demarcation of the land was the motive behind this offence. Though accused no.4 as per the evidence of P.W.1 and P.W.2 was alone on appeal 610/2004 12 the spot and he picked up the quarrel with the deceased, he immediately called other accused and in short time all the 18 accused arrived on the spot armed with weapons like axe, stick, knives and gupti. This shows that it was a planned attack on the deceased and all of them collectively committed murder of Shankar and Shrimant. It is further submitted that the evidence of P.W.1 and P.W.2 who are the eye witnesses, is to be believed as the incident happened during the day light and they knew the accused persons. Both the witnesses have given specific roles to some accused, however, they have stated in their evidence that all the accused who were present have assaulted with sticks. Medical reports of Shankar and Shrimant disclose that there were incised wounds as well as contused lacerated wounds which corroborates the evidence of P.W.1 and 2. They have also stated that the other accused were holding sticks in their hands. She submitted that when the charge u/s 149 of the Indian Penal Code is framed, it is not necessary to attribute specific role to each and every accused. On this point she relied on - 1. Yunis @ Kariya Vs.State of M.P.(2003) 1 Supreme Court Cases,425 2. Jagannath Narayan Nikam and Ors.Vs.State of Maharashtra , 1995 Cri.L.J., 795 3. State of Uttar Pradesh Vs.Sattan @ Satyendra and Ors. (2009) 4 Supreme Court Cases, 736 appeal 610/2004 13 8 It is submitted that the prosecution has heavily relied on the dying declaration Exh.54 given by Shankar. He was counting last moment of his life and it is to be believed that a man on the death bed will not lie and therefore, the details given by Shankar are to be treated as true and trustworthy. She argued that the evidence of medical officer who was present there i.e. P.W.10 is important as he has certified that Shankar was well oriented and conscious to give statement and therefore, his statement was recorded in presence of A.S.I.Patil P.W.13 and P.W.10 made endorsement that the witness was fit and in conscious condition to give statement and that endorsement is proved by the prosecution in the evidence of medical officer and it is marked as Exh.47. 9 Learned A.P.P.further submitted that if the dying declaration is recorded after ascertaining that the deceased was in fit state of mind to give statement and when the medical officer was present , then the dying declaration is to be accepted as voluntary and truthful in nature and that is a strong evidence against the accused whose names are mentioned in the dying declaration. appeal 610/2004 14 10 In support of her submissions she relied on Govindappa and others Vs.State of Karnataka (2010) 6 Supreme Court Cases 533. She further stated that the evidence of child witness, P.W.2, is also credible. On that point she relied on Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat AIR 2004 Supreme Court 23.On the point of motive she placed reliance on Badam Singh Vs. State of Madhya Pradesh AIR 2004 Supreme Court, 26. 11 The prosecution has relied on the report of Chemical analyser . She submitted that the clothes of the accused persons were seized. They were blood stained and the prosecution with the help of the report of the chemical analyser could prove that the blood stained clothes of the accused considering the blood group of the deceased, is a fact connecting the accused and the commission of the offence. She urged that the learned Sessions Judge has rightly assessed all the evidence and has passed the judgment of conviction against the accused which is to be confirmed. 12 In this case, offence against 18 persons was registered. One accused namely Dada died pending the trial and, therefore, 17 appeal 610/2004 15 accused were tried. Out of them 9 accused are convicted and out of 9 accused nos. 1,2,3,4,7, and 10 are in jail, accused no.5,11,and 17 are on bail. The case is mainly based on the evidence of the eye witnesses. The incident had taken place on 5/8/1990 and the evidence of these two witnesses was recorded nearly 12-13 years after the incident i.e. in 2003. Therefore, there is likelihood of some memory gap in the evidence of the eye witnesses. It is not expected that the eye witnesses will remember all the details about the incident as it had taken place 12-13 years back. P.W.1 Radhabai is wife of deceased Shankar and P.W.2 Nanda is daughter of deceased Shrimant. Admittedly, Nanda at the time of the incident was 11-12 years old. Generally, if any shocking and unusual incident takes place in the life of a person and if it is seen when he is 11-12 years old then the person remembers the broad details of such incident. The evidence of P.W.1 and 2 cannot be discarded only on the ground that they are closely related to the deceased so are the interested witnesses. In fact as per the case of the prosecution and the evidence tendered by the other witnesses, the incident had taken place in the field of sugarcane and during the relevant period family of the deceased was planting bulbs of sugarcane. Adjacent to field of the appeal 610/2004 16 deceased there was field of accused no.4. Deceased Shankar and Shrimant were the real brothers. When the work of planting was going on, accused no.4 was standing on the bund and he objected about the area where the bulbs were planted. Such type of dispute on the point of demarcation of agriculture land is common. P.W.1 has deposed that accused no.4 in fact invited the deceased to come there and wanted to quarrel with them. Therefore, accused no.4 immediately called other accused and in a short time other accused arrived armed with weapons like axe,sticks,gupti,knives,etc.. P.W.1 has further deposed that accused no.4 in the beginning threw chilly powder towards the deceased and thereafter accused no.1 inflicted axe blow on both the legs and right elbow joint of Shrimant and accused no.2 inflicted axe blows on the back of Shankar. She deposed that accused no.3 inflicted stab injuries to Shankar and Shrimant by Gupti. 13 P.W.2 Nanda corroborated the evidence of P.W.1 in all material details in respect of presence of accused no.4. The incident of picking quarrel, arrival of other accused with arms and also in respect of the sequence of the assault P.W.2 corroborated the evidence of appeal 610/2004 17 P.W.1. P.W.2 corroborated that accused no.1 gave axe blow to Shrimant, accused no.2 gave axe blow to Shankar, accused no.3 pierced gupti on the person of Shankar and Shrimant. She also supported that accused no.4 threw chilly powder in the eyes of Shankar and Shrimant. P.W.1 and P.W.2 stated that other accused assaulted both the deceased with sticks and thereafter both the deceased got seriously injured on the spot. Thus, the evidence of P.W.1 and P.W.2 is found natural, cogent, consistent and we do not find any reason to disbelieve the evidence of these two witnesses. P.W.5 Prakash has deposed that he was working in the nearby field and when he heard shouts, he rushed to the field of Shankar and Shrimant and he found Shankar and Shrimant were injured. He deposed that wife of Shankar and Nanda were present alongwith Balabai. P.W.1 Radhabai in her evidence has stated that as the incident took place, they raised shouts and on hearing hue and cry, Prakash came to their land. Thus, the presence of P.W.1 and P.W.2 is corroborated in the evidence of P.W.5. Similarly arrival of P.W.5 Prakash is corroborated by Radhabai,P.W.1. Thus, the prosecution has successfully established that there was assault by accused nos. 1,2,3, 4 and by the other persons and in the assault Shankar and Shrimant sustained many injuries and they appeal 610/2004 18 succumbed to the injuries. 14 As per the evidence of these two witnesses Shrimant died on the spot and injured Shankar was shifted to Primary Healh Center at Natepute. He was treated there by the medical officer and then he was shifted to the Civil Hospital, Solapur. While shifting he died. The medical officers P.W.6 has confirmed that the death of Shrimant was caused due to shock due to fracture of tibia fibula of both lower limbs. The evidence of P.W.9 ,Dr.Subhashchandra, has proved that Shankar died due to shock and haemorrhage due to injury to lungs, liver with fracture of ribs. Thus, the prosecution has proved that Shrimant and Shankar died on 5/8/1990 due to the assault by the accused persons. 15 In the present case as stated above 9 accused are convicted and 8 accused were acquitted. Admittedly, role of actual assault is attributed by both the eye witnesses to accused nos.1,2 and 3 and it was stated that all other accused have assaulted by sticks to Shrimant and Shankar. Considering the nature of the evidence, learned counsel appearing for the accused have raised two important questions which are required to be answered by us. appeal 610/2004 19 1. Whether all the accused are to be held guilty for the commission of offence as the names of all the convicted accused are not mentioned ? 2. Whether the offences are punishable under section 302 of the Indian Penal Code or they are coming within the ambit of Section 304 Part-II ? 16 As discussed above, P.W.1 and P.W.2 both have mentioned the names of accused nos.1,2 and 3 specifically and attributed them a particular act of assault. Presence of accused no.4 is also established as they have stated that he was the one who gave challenge to the deceased, called other accused persons and threw chilly powder in the eyes of the deceased. Submission of the learned defence counsel that at the time of panchanama remnants of chilly powder were not found on the body of the deceased cannot dislodge the evidence of the eye witnesses on this point. Thus, the presence of accused no.4 is also established through two eye witnesses. Both the eye witnesses about other accused have stated that these all accused assaulted Shankar and Shrimant with sticks. While analysing this evidence we have to consider the evidence of Dr.Nandkumar. In his evidence he has deposed that he conducted postmortem on Shrimant. He has found the following external injuries on the dead body of Shrimant. appeal 610/2004 20 1 C.L.W. over right shin of