1 Cri. Appeal. 36.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 36 OF 2008 1. Parasram S/o Gunaji Samratkar, Age 62 years Occup.Agriculture, r/o Pota (kh) Ta.Aundhi (Nagnath), District Hingoli. 2. Shamrao S/o Parasaram Samratkar, Age 37 years,Occup.Agriculture, R/o as above. (At present in Jail Custody ) .. APPELLANTS (Original Accused) Versus The State of Maharashtra Through Police Station Officer, Police Station Pathri,Ta. Pathri District Parbhani. (Copy is being served on PP of High Court of Bombay,Bench at Aurangabad ) .. RESPONDENTS (Orig. Complainant ) Shri Swapnil S.Rathi, Advocate for the appellants. Shri K.G.Patil, Assistant Public Prosecutor for appellant-State CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ DATE : 9th DECEMBER, 2009 ORAL JUDGMENT [ PER P.V. HARDAS , J ] 1. The appellants, who stand convicted for an offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay a fine of Rs.1000/- with a default stipulation of undergoing 2 Cri. Appeal. 36.2008 further R.I. for one year, in the event of non payment of fine, by Additional Sessions Judge, Basmatnagar, by judgment dated 01.10.2007, in Sessions Trial No. 19 of 2006, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.9 Bhagwat Raosaheb Jayabhaye was attached to Police Station Hatta. On 19.03.2006 the Police Constable Pote produced the complaint of P.W.1 Nirgunabai at Exh. 16. On the basis of this complaint, an offence vide Crime No. 47 of 2006 came to be registered. Thereafter, the investigation was conducted by P.W.9 A.P.I. Jayabhaye. He, thereafter, drew the scene of offence panchnama at Exh.45 in the presence of panch witnesses. From the scene of offence an axe with broken handle and piece of broken handle of the axe came to be seized. The aforesaid axe and handle are article 1 and 2. Thereafter, the statements of witnesses came to be recorded and the accused came to be arrested under arrest panchnama at Exh. 47 and 48. The clothes of the accused also came to be seized vide seizure memo at Exh. 29, in the presence of panch witnesses. The original accused no.2 Shamrao, during the custodial interrogation expressed his willingness to produce clothes which had been hidden. Accordingly, he led the Police and panchas and produced the 3 Cri. Appeal. 36.2008 clothes. The clothes, axe and rope which came to be seized under seizure memorandum at Exh.33. The clothes of the deceased came to be seized by Constable Shri Pote under seizure memorandum at Exh.28. Inquest panchnama of the dead body of the deceased came to be drawn and dead body of the deceased was referred for post mortem examination, which came to be conducted by P.W.8 Dr. Pandurang Chevale. P.W.8 Dr. Chevale noticed three injuries of abrasion of size 2 X 2 cm, one situated at the chest, while other two situated on shoulder and back. On internal examination P.W.8 Dr. Chevale noticed fracture on first rib, which resulted in rupture of left lung with intra pulmonary haemorrhage in thoracic cavity. P.W.8 Dr. Chevale, therefore, opined that the possible cause of death was due to pulmonary haemorrhage with fracture of rib on left side. The post mortem report is at Exh.44. The seized articles came to be referred to Chemical Analyzer for examination alongwith requisition at Exh. 49. The chemical analysis reports are at Exh.50 and 51. Further to the completion of investigation, a charge-sheet against the accused came to be filed. 3. On committal of the case to Court of Sessions, the Trial Court vide Exh.7 framed charge against the appellants/accused for the offence punishable under section 302 read with section 34 of the Indian Penal Code. The appellants denied their guilt and 4 Cri. Appeal. 36.2008 claimed to be tried. The Prosecution in support of its case examined nine witnesses. Substratum of the prosecution case was based on the testimony of P.W.1 Nirgunabai, P.W.2 Dnyaneshwar, P.W.3 Namdeo and P.W.7 Rama, as eye witnesses. The Trial Court accepted the testimony of the eye witnesses and found that prosecution had proved the offence beyond reasonable doubt and accordingly convicted and sentenced the appellants . 4. Before we deal with the submissions advanced before us by Shri Swapnil Rathi, learned counsel for appellants and submissions of the learned Assistant Public Prosecutor, it would be useful to refer to the evidence of prosecution. The prosecution has examined P.W.2 Dnyaneshwar, a child witness, who states that the lands of the accused and deceased Prabhakar were adjoining each other. He states that on the date of the incident at about 6.00 p.m., he had returned after grazing goats and had tied goats and thereafter was listening to the Marathi News on the Radio. At that time he heard the noise of quarrel and accordingly went to the field of the accused. There he noticed accused No.2 Shamrao assaulting deceased on his neck from the blunt side of the axe. Accused no.1 Parasram had caught the hands and legs of the deceased and the deceased had fallen on the ground. P.W.2 Dnyaneshwar shouted and on hearing his 5 Cri. Appeal. 36.2008 shouts accused threatened to kill P.W.2-Dnyaneshwar. P.W.2 Dnyaneshwar had fled and went to his house in the village and narrated the incident to his father Umrao. He stated that thereafter he went to the house of P.W.1 Nirgunabai and narrated incident to her. He states that Police had recorded his statement on third day of incident. In cross examination he has admitted that he does not attend the school. He further admitted that wheat crop in the field of the accused was harvested, while wheat crop in the field of the deceased was standing. According to him, apart from him no one else was present at the time of incident. He admitted that he had seen the incident from the distance of 90 feet and he has further admitted that half an hour is required for reaching the village from the field of Rahim. He further states that the field of the accused and deceased are also situated on the northern side of the village. He has admitted that his father had first had gone to the house of the deceased and thereafter he had gone to the house of deceased. He states that when he had reached the house of deceased. P.W.1 Nirgunabai, P.W.7 Rama and P.W.3 Namdeo had started going to the field. He has further admitted that he ran away from the spot of incident, after accused had threatened him. Omission has been duly proved that he had not stated in his previous statement that accused No. 1 Parasaram had caught the hands of deceased. 6 Cri. Appeal. 36.2008 5. P.W.1 Nirgunabai, wife of the deceased Prabhakar states that there was dispute between the accused and deceased on account of use of water of canal. She states that on the day of incident Dnyaneshwar had informed her that accused had assaulted her husband. She, therefore, along with P.W.7 Rama, one Vimalbai, Pandurag and Navnath rushed to the field. She states that others had reached ahead of her, while she followed them. She states that when she went to the scene of offence, she saw P.W.3 Namdeo, P.W.7 Rama and others untying deceased- Prabhakar and accused fleeing from the scene of offence. She states that the witnesses had untied the deceased who was tied by rope to a bullock cart. Mouth of the deceased was also gaged by piece of cotton, which has been thrust in his mouth. She states that the deceased had sustained several injuries, which were not visible, on his chest, back and neck and he was unable to speak. Deceased Prabhakar was taken to the Jawalabazar Hospital, but for want of presence of Medical Officer the deceased was shifted to the Civil Hospital at Parbhani. On the next day in the evening, deceased-Prbahakar succumbed to his injuries. Thereafter, her complaint at Exh.16 came to be recorded. In the cross examination she had stated that the Police from Hatta Police Station had arrived at Civil Hospital, Parbhani, on the next day at about 3.00 to 3.30 p.m. for recording statement of the deceased. However, since the deceased was not in a position to speak, his 7 Cri. Appeal. 36.2008 statement could not be recorded. She has admitted that her agricultural land is at a distance of 1 Km. from the village and one can go to the land and return back to the village within 25 to 30 minutes. She states that along with P.W.2 Dnyaneshwar, P.W.3 Namdeo had also come to her house to inform her about the incident. She states that on being apprised of the incident, P.W.7 Rama along with others had reached to the agricultural field. The rope was cut by an axe. She states that she had seen one of the accused armed with an axe, while fleeing from the scene of offence. 6. Prosecution has also examined P.W.3-Namdeo, who was possibly the first person to have reached the scene of offence, after the incident was informed by P.W.2 Dnyaneshwar. P.W.3 Namdeo states that on the day of incident he was sitting in front of his house with Rama, at about 6.00 p.m., Umrao, father of Dnyaneshwar informed him that deceased Prabhakar was being assaulted by the accused. He, therefore, went to the house of deceased Prabhakar and informed P.W.1 Nirgunabai and then reached to the agricultural land. On reaching, there he noticed that deceased Prabhakar was tied to a bullock cart by rope and appellants/accused were assaulting the deceased Prabhakar from the blunt side of the axe. He states that when he had attempted to intervene, the accused no.2 Shamrao pelted a brick at him, 8 Cri. Appeal. 36.2008 which hit his left leg. Accused no.2 Parasram gave blow of handle of the axe on his left hand and accused no.2 Shamrao gave a blow of axe from its blunt side on the hand of P.W.7 Rama. He states that the ladies including P.W.1 Nirgunabai reached thereafter. He states that he untied the deceased Prabhakar by cutting the rope and removed the cotton gag which was thrust in his mouth. In the cross examination he has admitted that a constable had initially questioned the deceased Prabhakar, but Prabhakar could not speak and thereafter statement of the complainant came to be recorded after the death of Prabhakar. He has admitted that his land is at a distance of 1 Km. from the village. He has admitted that house of the deceased and his house are close to each other. He has also admitted that he ran from the village to the agricultural land on being informed about the incident. He has also admitted that wife of deceased Prabhakar had also reached to the agricultural land. He has admitted that to have seen accused while actually assaulting the deceased. According to him, accused had given two to four blows by blunt edge of the axe. He then exaggerated it to say that each of the accused had dealt five to six blows. Omission has been duly proved that he had not stated in his previous statement that he had actually seen the accused assaulting the deceased from blunt side of the axe. 9 Cri. Appeal. 36.2008 7. On the basis of aforesaid evidence, it is urged before us by Shri Rathi, learned counsel for the appellants that no reliance can be placed on the testimony of P.W.3 Namdeo and P.W.7 Rama as their evidence stands falsified by the medical evidence. According to the learned counsel for the appellants, the deceased had sustained only three abrasions and these three injuries had been sustained, when initially the incident is alleged to have been witnessed by P.W.2 Dnyaneshwar. According to us, P.W.3 Namdeo and P.W.7 Rama have exaggerated and have stated incorrectly that they had witnessed the actual assault on deceased Prabhakar. Obviously, it took some time for P.W.2 Dnyaneshwar to reach village, inform his parents and for his father to inform P.W.1 Nirgunabai and for Nirgunabai and these witnesses to have reached to scene of the offence. The number of injuries sustained by the deceased Prabhakar belies the statement of P.W.3 Namdeo and P.W.7 Rama that the incident had lasted for more than half an hour i.e. incident of actual assault. According to us, therefore, these witnesses have exaggerated to state that they had witnessed the actual assault. However, the statement of the witnesses that the deceased was tied to a bullock cart and that his mouth was gaged by piece of cotton can not be disbelieved. Similarly the evidence of P.W.1 Nirgunabai that she had witnessed the accused fleeing from the scene of offence can not be disbelieved. Thus, the presence of 10 Cri. Appeal. 36.2008 the accused at the scene of the offence and fleeing of the accused armed with axe has been established on the basis of evidence of P.W,1 Nirgunabai, P.W.3 Namdeo and P.W.7 Rama. The evidence of P.W.2 Dnyaneshwar, though child witness, according to us establishes the actual assault on deceased Prabhakar by the appellants. Normally, the evidence of child witness is required to be carefully scrutinized before its acceptance. In certain cases the Court may insist on corroboration before relying upon the said evidence. However, in this case P.W.2 Dnyaneshwar was aged 13 years and his evidence has been fully corroborated by his immediate informing about the incident to other witnesses and the witnesses actually finding the appellants/accused at the scene of the offence armed with an axe and deceased Prabhakar tied to a bullock cart. According to us, the fact that accused had inflicted injuries to the deceased has been fully established. 8. It was next urged by Shri Rathi learned counsel for the appellants that undisputedly, the appellants had used the blunt side of an axe. If the accused had really intended to commit murder of deceased of Prabhakar, the accused would have used the sharp edge of an axe but the accused had in fact inflicted injury from the blunt side and that too not on vital part of the body. For the aforesaid proposition, we may usefully refer to the 11 Cri. Appeal. 36.2008 judgment of Supreme Court in Hardev Bhanaji Joshi vs. State of Gujrat [ AIR 1993 Supreme Court, 297.] The Supreme Court in the aforesaid judgment has observed that only one blow was inflicted from the blunt side of axe, the intention to cause death was absent as a sharp edge of axe was not used. The Supreme Court found that the incident was not premeditated act and occurred in sudden manner in a quarrel. In the present case, no doubt, three injuries were caused to the deceased but only, one abrasion on the chest which resulted in fracture of the ribs which in turn resulted in rupture of left lung which caused the death of deceased. Obviously, such injury was not intended and neither the consequences of inflicting such injury were intended by the accused. The aforesaid injury was caused from the blunt edge of the axe. Other two injuries appear to have been caused by the handle of an axe. The aforesaid attack on the deceased was certainly not a premeditated attack. The aforesaid incident must have occurred between the deceased and the accused on account of use of water of the canal. We, therefore, find considerable force in the submission of the learned counsel for the appellants that the accused had no intention to commit murder of deceased Prabhakar or to inflict such injury which would result in death of deceased Prabhakar. 9. In order to ascertain the intention of the accused, the 12 Cri. Appeal. 36.2008 nature of the weapon which is used, the place where blow was intended to be given and extortion if any accompanying infliction of the injury are factors which determine as to whether accused shared requisite intention. In this behalf we may usefully refer to the judgment of the Privy Council in Cargo Ex. Steamship Consul Corfitzon as per Palen, trading as Nettraby Laderforbrik V.s His Majesty’s Procurator General (AIR 1918 Privy Council, 354). Privy Council has held that. “intention is rarely the subject of direct evidence. As a rule it has to be inferred from surrounding circumstances and every circumstance which could either alone or in connection with other circumstances give rise to an interference as to the intention of the parties concerned in a transaction, both relates and is relevant to the question what that intention really was.” In the present case the accused had used the blunt side of axe and had not inflicted injuries on vital part of the body. The injury present on the chest certainly was not intended and much less the consequences of fracture of rib intended. Deceased died on account of fracture of the rib to left lung. In such circumstances, therefore, according to us, the act of the accused would amount to culpable homicide not amounting to murder. The offence with which the accused would be convicted would be an offence punishable under section 304(II) of the Indian Penal 13 Cri. Appeal. 36.2008 Code as accused can be attributed with knowledge that the injury intended by the accused was likely to cause death of the deceased looking to nature of the weapon that was used i.e. an axe. 10. After giving anxious consideration to the submissions advanced before us by the learned counsel for the appellants, according to us, this appeal deserves to be partly allowed. We accordingly partly allow the appeal and quash and set aside the conviction and sentence of the appellants/accused for the offence punishable under section 302 read with section 34 of the Indian Penal Code and, instead convict the appellants for the offence punishable under section 304(II) read with section 34 of the Indian Penal Code and sentence the appellants/accused to a term of imprisonment of five years, while maintaining the sentence of fine imposed by the trial Court. It is needless to state that the accused/appellants would be entitled for set off for the period of imprisonment already undergone by them. Thus, the appeal, therefore, is partly allowed as indicated above. ( A.V. NIRGUDE ) ( P.V.HARDAS ) JUDGE JUDGE MTK 14 Cri. Appeal. 36.2008