1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.245 OF 1991 (By accused against conviction) Iranayya Revansidhayya Swami,age 55 yrs Occupation: Business R/o 82,Sidheshwar Peth, Solapur ... Appellant (Orig.Accd no.1) Vs The State of Maharashtra .. Respondent. Mr.P.K.Dhakephalkar a.w Mr.Sachin Dhakephalkar for Appellant Ms.P.P.Shinde A.P.P.for Respondent-State Mr.Priyal G.Sarda for Complainant CORAM : B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ DATED: 30TH APRIL, 2010 ORAL JUDGMENT (Per B.H.Marlapalle, J) 1. This appeal filed under section 374 of the Code of Criminal Procedure is directed against the order of conviction and sentence passed in Sessions case No.172 of 1990 by the learned Additional Sessions Judge,Solapur on 28th March, 1991. In all three accused were put on trial in the said case and all the three came to be convicted and sentenced for the 2 offence punishable under section 302 read with section 34 of the Indian penal code. This appeal has been filed by the original accused no.1 and accused nos. 2 and 3 had filed Criminal Appeal No.313 of 1991 and during the pendency of their appeal, accused nos. 2 and 3 died and therefore Criminal Appeal No.313 of 1991 came to be dismissed as abated. On admission of this appeal i.e. Criminal Appeal No.245 of 1991, on 15th April, 1991 the appellant (Original Accused no.1) was released on bail and he was on bail before the trial court as well. 2. As per the prosecution case, Parutayya, Panchaksari Swami and the present appellant were brothers and Panchaksari’s Swami begot four sons namely Chandrakant, Suryakant Somshankar and Shrishail. The eldest brother-Parutayya Swami died much before the incident and PW 1 Prabhuling is his son. There was partition of immovable property between the three brothers. Parutayya was residing at Municipal house no.670 south Kasba choupat and the appellant was residing at House no.821/A Siddheshwar peth whereas house bearing municipal No.636 had gone to the share of Panchaksari Swami. Panchaksari Swami 3 wanted to sell house bearing No.636 and the appellant who was financially much better off than the other two brothers gave a proposal that he would construct a two- storeyed building on the said plot provided in return he would be given two shops. This proposal was accepted by Panchkasari Swami PW 9 and therefore the appellant constructed a building. However, he is alleged to have demanded a better share and more particularly three shops on the ground floor and the equal area on the first floor. This was not acceptable to PW 9 and therefore, the appellant did not complete the first floor. On account of this development, there was a dispute between the two brothers i.e. the appellant and PW 9. 3. On 14th May,1990 PW 1 Prabhuling Swami, PW 2 Dattatraya Sawant and Shrishail one of the sons of PW 9 had tea together at about 8.30 p.m in a restaurant and when they came out, Shrishail saw the appellant in front of the restaurant and therefore, he went to the appellant and started asking him as to when he would complete the first floor of the building. It appears that Shrishail became little aggressive and therefore the appellant suggested to him to come to his house so 4 that the matter could be discussed and settled. Both of them followed by PW 1 and PW 2, went to the house of the appellant and Shrishail started asking the appellant as to why he would not complete the construction of the building and hand over the portion other than the two shops. He also asked PW 1 and PW 2 to go to his house by an autorickshaw and bring PW 9 as well as Somshankar (PW 7). All the four came to the house of the appellant shortly after 9 p.m. and saw that Shrishail was being assaulted by the appellant and other two accused who were appellant’s brothers-in-law (wife’s brothers). Accused nos. 2 and 3 had assaulted Shrishail by a stone and a iron bar and the appellant was assaulting him with a broken glass bottle. On account of the bleeding injuries on his head Shrishail collapsed and the neighbours had already alerted the police and within a few minutes the police van reached the house of the appellant. Members of both the parties were taken to the police station. Shrishail was declared dead on the spot. The accused came to be arrested on the basis of the complaint filed by PW 7 Somshankar. (FIR No.23). After drawing the inquest panchanama at Exhibit 14 and the spot panchanama at Exhibit 15, Shrishail’s dead body 5 was sent for post mortem and Dr.S.S.Sardar attached to the Civil Hospital conducted the post mortem. The clothes on the person of the accused were seized and sent for chemical analysis along with the iron bar and stone recovered from the spot of the incident. PW 14 Prakash Chavan Police Inspector had undertaken the investigation and the accused were sent for medical examination which was done by PW 15 Dr.Subhash Ganu. PW 1 and 2 were also sent for medical examination and the said doctor had issued the injury certificates. On receiving the chemical analysis report at Exhibit 37 to 44. PW 15 submitted the charge sheet on 5th July, 1990. 4. On committal of the case, charge was framed on 6th January,1990. The prosecution examined 15 witnesses whereas the defence examined two witnesses. PW 3 Arun Sawant, PW 4 Abdul Majid Mirajkar and PW 5 Saudagar Aher were the panch witnesses whereas PW 1 and PW 2, PW 6 Mohan Panaskar, PW 7 Somshankar and PW 9 Panchakasari Swami were claimed to be the eye witnesses.PW 10 Ramchandra Paratkar was the neighbour. PW 11 Gopal Narayankar, PW 3 Arun Sawant and PW 14 Prakash Chavan were the police personnel. 6 5. The defence examined Dw 1 Ansari Jackkal in support of its case that the broken bottle which was alleged to have been used by the appellant to assault the deceased was a whisky bottle (Officer’s Choice) and it could not have caused any of the injuries which were noticed on the person of the deceased. DW 2 Sudhir Malge was the photographer and he was examined to prove the defence that the deceased had started abusing the accused party and damaged the household articles before he was assaulted. In short, the case of the prosecution was that the deceased was assaulted in private defence and his behaviour had become so unruly that there was danger to the life of the accused party. 6. PW 8 Dr.S.S.Sardar was lecturer in Forensic Medicine at the Solapur Medical College from 1979 onwards and he claimed to have conducted more than 5000 post mortem examinations. On 15th May, 1991 in the night of 14.5.1991 he had received the dead body of Shrishail and completed the post mortem at about 1.30 a.m.,on 15th May,1990 and on examination of the said body he had noticed the following 10 injuries : 7 1. C.L.W. on left temporal region 2 x 1/2 “ scalp deep. 2. C.L.W. 1/4 above injury no.1. 2 x 1/2 temperate region scalp deep. 3. C.L.W.on vertex left side anteriorly 2 x 1/2” scalp deep. 4. Incised wound on right upper eye lid horizontal margin clear and regular gapping present. 5.C.L.W.above right eye brow in centre 1 x 1/4” muscle deep. 6. Incised wound on pina of right ear 1/4” margin clear cut regular horizontal. 7.Incised wound on right ear pina in centre 1/4” margin clear cut regular gaping present. 8. Incised wound on lobule of right ear horizontal 1/4” margin clean cut regular gaping present. 9. Abrasion on right side of neck lateral aspects upper region 1/4” brown in colour horizontal another abrasion 1/4” below injury no.9 brown in colour 1/4 horizontal. 10. Abrasion on right side of nect at lower, region 1/4” horizontal brown in colour lateral 8 aspect. Ante mortem blood clots present in above all injuries. 7. On internal examination of the dead body he had noticed haematoma under left parietal region skull fracture on left elbow bone laceration of brain left temporal region and extradural and subdural haemotoma on left temporal parital region and left side of vertex. The head was full of blood clots. He had prepared and signed the post mortem notes at Exhibit 25 and also issued death certificate at Exhibit 26. As per injury nos. 1 to 3, being skull injuries were sufficient to cause death in the ordinary course and such injuries could have been caused by any hard and blunt object and more particularly by weapons like articles 2 and 3 (iron bar and stone). He also stated that injury nos. 4,6,7 and 8 could be caused by any sharp object. Injury no.5 could be caused by a hard and blunt article. Injury nos. 4 to 10 were simple injuries. The cause of death was “ shock and haemorrhage due to injury to brain with fracture of the skull bone.” All these injuries and their nature and the cause of death, there was nothing much which was brought out in the cross-examination of this 9 witness so as to doubt the expert’s opinion. This witness therefore, proved the prosecution case that Shrishail Swami died a homicidal death. Admittedly, the deceased sustained the assault in the house of the appellant on 14th May,1990 at about 9 p.m. 8. We have to therefore, examine whether the prosecution proved that the appellant along with other two accused caused the homicidal death of Shrishail and whether it amounted to culpable homicide amounting to murder. The offence punishable under section 302 read with section 34 of the Indian penal code. The trial court has answered the same in the affirmative and held that the prosecution has proved its case beyond reasonable doubt and the defence of private defence has been rejected. 9. Mr.Dhakephalkar, the learned senior counsel submitted that there was no enmity between the brothers i.e. the appellant and Panchakasari’s son though there was some property dispute on account of which relations were strained there was no evidence to hold that the assault on Shrishail was premeditated and or with common intention to cause his death the 10 evidence of the eye witnesses did not prove beyond doubt the case that the accused had planned an attack on the deceased and in furtherance thereof he was taken to the house of the appellant and assaulted. It was also pointed out that Shrishail died on account of injury nos.1 to 3 and there were all head injuries. Even if it is presumed that the appellant had a broken glass bottle in his hand when the deceased had collapsed, none of these three injuries could be attributed to the appellant and therefore, he could not be held to have shared the common intention with other two assailants i.e. accused nos.2 and 3 who had inflicted injuries by a stone and iron bar and on the head of the deceased. In the alternative, it was submitted that in any case, the accused party did not share any common intention which had developed at the spot so as to cause injuries to Shrishail to kill him and therefore the prosecution case for the offence punishable under section 302 read with section 34 of the Indian Penal Code was not proved beyond reasonable doubts. In support of his arguments, Mr.Dhakephalkar learned senior counsel relied on the order passed by 11 the Supreme Court in MANAJI KALUJI THAKOR AND ORS VS STATE OF GUJRAT (2005) 9 Supreme Court Cases 310. 10. Mrs Shinde, the learned A.P.P. on the other hand has supported the order of conviction and sentence in its totality. As per her, it would be necessary to consider the weapon used in causing injuries on vital parts of the body i.e. head and it was not necessary that the said injury was caused by him so as to find out whether the accused shared the common intention of causing homicidal death of Shrishail. By referring to the evidence of all the five eye-witnesses it was submitted by the learned A.P.P. that the prosecution proved its case beyond reasonable doubts and they have been rightly convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code. As per her, the offence proved against the appellant along with accused nos. 2 and 3 cannot be brought into the ambit of section 304 or section 324 read with section 34 of the Indian Penal code. In support of these contentions, she has relied on the following decisions : 1) KIKAR SINGH VS STATE OF RAJASTHAN (1993 Cri.L.J. 12 3255) 2) KULESH MONDAL VS STATE OF WEST BENGAL (AIR 2007 SUPREME COURT 3228). 3) ARUN NIVALAJI MORE vs STATE OF MAHARASHTRA (2006) 12 Supreme Court Cases 613. She has also relied upon the decision of Rajasthan High Court in the case of AJIT SINGH VS STATE OF RAJASATHAN (2005) Cr.L.J. 3056. 11. PW 1 Prabhuling Swami is the nephew (brother’s son) of the appellant. He was engaged in the same business as the appellant, (sarafi shop). He stated before the trial court that on 14th May, 1990 there was weekly off day for his shop and between 7 to 7.30 p.m. the deceased and Datta Sawant (PW 2) had gone to his shop and at their request he closed his shop and all three of them went to Mahadeo Hotel. After tea they left the hotel and came to Chelekar Sweet Meat mart and saw the accused no.1 was standing in front of the said mart. The deceased went to the appellant talked to him about the construction and more 13 particularly when the same would be completed by the appellant. The appellant informed him that he had no money to carry out the same and therefore, there was hot exchange of words between them. The appellant therefore, asked Shrishail to come to his house so that the matter could be discussed and therefore, the deceased went to the house of the appellant followed by PW 1 and PW2. The deceased asked them to go and bring his father to the house of the appellant. Within a few minutes, when PW 1 and PW 2 returned along with PW 9 and PW 7 in a rickshaw to the house of the appellant, they noticed about 10 to 15 persons standing in front of the said house and the deceased was calling for help and uttering the words “save save”. He noticed that all the accused were beating Shrishail inside the house but, near the entrance door and the appellant was giving blows to Shrishail by a broken glass bottle whereas accused no. 2 was giving blows with an iron bar and accused no.3 was hitting Shrishail on his head by a stone. Shrishail fell down and all the accused continued to assault him. As soon as the complainant came inside the house, the appellant rushed towards PW 1 and gave him a blow by the bottle on his left hand wrist and when he tried to 14 save the said assault, he sustained injuries. Police van came and accused nos,. 2 and 3 ran away to hide in the house. However, the police caught hold of all the accused and they were taken to the police station. PW 1 and PW 2 were referred to the Civil Hospital for medical examination. In his cross-examination, this witness stated that there was a partition between the appellant and his brothers in the year 1975 and Revansiddha was the grand father. The appellant was running a sarafi shop. He also owned agricultural land in village Kasegaon. The appellant also owned a car and one son of Panchakasari Swami, was a partner with the appellant whereas another son was an employee of the appellant in the sarafi shop for some time. He denied the suggestion that he was aware that the accused had caused terror in the town. He was also not aware that Shrishail was arrested by the police on account of carrying dangerous weapons. In his cross-examination it was brought out that the distance between his house and house of the appellant was 1 km. 12. Thus, as per this witness Shrishail met the appellant at about 8 p.m. in front of Chelekar sweet mart and there were some discussions between them 15 about the completion of the building construction on a plot which originally belonged to PW 9 Panchakasari Swami and when the discussions became louder, the appellant asked Shrishail to come to his house and the assault on the deceased followed in the house of the appellant. The appellant was assaulting the deceased with a broken glass bottle whereas accused nos. 2 and 3 used iron bar and stone to assault the deceased. 13. PW 2 is the second eye witness and also a friend of Shrishail. He was in the company of Shrishail along with PW 1 to have tea at Mahadeo Hotel. He has repeated the deposition of PW 1 but with some variations. However, it was stated by this witness that it was the appellant who had asked Shrishail to call his father to settle the matter and therefore PW 1 and Pw 2 were sent by the deceased in a rickshaw to his father’s house. He also stated that all four of them tried to save Shrishail and when he tried to intervene, the appellant pushed him aside. The accused continued to give blows to Shrishail and after he fell down, the police van had reached the spot. In his cross examination, he stated that the distance between the house of the deceased and accused 16 was one km. The incident of assault continued for about 10 minutes and during that time he did not raise any shouts. PW 7 Somshankar Swami, brother of the deceased was the complainant. He stated before the trial court that the new building to be constructed on municipal Plot No.636 was two storeyed and ground floor was to have five shops. After completion of this building, the appellant was claiming three shops on first floor of the building though he had initially agreed for two shops. His father had refused to give three shops and therefore there was a dispute between the two brothers and it was about five to six months old. On account of this dispute the construction of the building remained incomplete. He stated that along with PW 1 and PW 2, he and PW 9 reached the house of the accused and had seen Shrishail standing in front of the accused and all the three accused were beating him. In the assault, the deceased fell down. Dattatray Sawant PW 2 tried to intervene along with PW 1 but, accused no.1 gave a blow by the broken glass bottle on the left hand of PW 1. In his cross examination, he was asked about the deceased being a known goonda and he denied the same. 17 His testimony before the court was on the lines of the FIR. PW 9 Panchakshari swami deposed before the trial court on the lines of depositions of PW 7. He stated before the court that he was not on talking terms with the appellant and the incident had taken place at about 9 p.m. on 14th May, 1990. Between 8.30 to 8.45 p.m he was in his house when PW 1 and PW 2 brought him by a rickshaw to the house of the appellant and he was informed that there was some quarrel between the deceased and the appellant on account of the house property. In his cross examination, he admitted that he had published notice in Sanchar newspaper that the deceased had bad habits and none should enter in any transaction with him and that he would not be responsible for any such transactions. He also stated that his two sons, Suryakant and Chandrakant stayed separately and the deceased and PW 7 Somshankar Swami were staying with him. He also admitted that the appellant had purchased a bungalow at Solapur in the joint names of all the three brothers and in the family partition the business of oil extraction had come to his share. He denied the suggestion that on 18 27th January, 1989 he had sold eastern portion of plot No.636 to the appellant but, admitted that he had executed a registered sale deed in favour of the appellant relating to eastern side half portion of the said house. 14. PW 6 Mohan Panaskar is the star witness of the prosecution and more so he is an independent and a chance witness. He knows both the parties and is resident of the same village. He stated before the trial court that at about 9 p.m. on 14th May,1990 he was passing from the house of the accused so as to go to urinal which is located beyond the house of the accused no.1 and he noticed that near the door but inside the house of accused no.1,deceased, Shrishail was standing. Accused nos. 1 to 3 were abusing Shrishail. After urinating he returned and he went inside the compound of the house of the accused no.1 and asked Shrishail to come out rather than quarrel with his uncle. He further stated that accused no.1 asked him to get out of the house and said he had no business to interfere. Accused no.1 pushed him and the witness fell down from the steps of the house of accused no.1. He thereafter, noticed that accused 19 no.1 and 2 went inside the house and accused no.1 returned with a broken glass bottle in his hand and while accused no.2 was holding an iron bar, accused no.3 lifted a stone used as a stopper for the entrance door. Accused nos.1 and 3 abused Shrishail and asked him to leave the house of the accused no.1 forthwith. Accused no.3 hit Shrishail by the stone on his head. Accused no.1 started giving blows to Shrishail by a broken glass bottle whereas accused no.2 gave blows by an iron bar. At this stage, Shrishail uttered the words “save me, save me ” and PW 1 and 2 along with PW 9 reached the house of the accused no.1 by a rickshaw . Shrishail fell down and at that stage the witness left the house of the accused no.1. In his cross examination, this witness admitted that two months before the incident he was arrested on account of the quarrel between him and a rickshaw walla and denied that the house of accused no.l was at a distance of two furlong away from his house. He also denied that there was no open space towards the southern side of the house of accused no.1. He also admitted that he did not go to any neighbour to inform the incident when the quarrel between Shrishail and 20 accused no.1 was going on. He also admitted that he did not raise any cries or alarm when accused nos. 1 and 2 came out of the room with weapons. As per him, the bottle which was in the hand of accused no.1 was about 6 inches in length. The accused no.3 threw the stone which hit the head of Shrishail (right ear). The actual incident of assault lasted for about two to four minutes. But, after arrival of PW 1,2 and 9 he did not talk to anyone of them and he did not make any attempt to intervene and save Shrishail. He went to the house of Shrishail and informed his mother about the incident and went away. After the date of the incident, he had gone to his native place and returned after two days and therefore, there was delay in recording his statement. 15. The evidence of the five eye witnesses namely PW 1 Prabhuling Swami,PW 2 Dattatray Sawant, PW 6 Mohan Panaskar, PW 7 Somshankar Swami and PW 9 Panchakasari Swami goes to show that Shrishail was assaulted in the