1 Cri. Appeal No.655 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Appeal No.655 Of 2009 Shersingh S/o. Nanaksingh Gill, Age 25 years, Occupation : Service in Gurudwara, R/o Gurudwara, Gate No.1, Nanded (Presently in Jail Custody). .. Appellant. Versus The State of Maharashtra. .. Respondent. -------- Shri. V.N. Damle with Shri. Hemantkumar F. Pawar, Advocates for appellant. Shri. K.G. Patil, Additional Public Prosecutor, for respondent. -------- CORAM: NARESH H PATIL & T.V. NALAWADE, JJ. Judgment reserved on: 21st MARCH 2011 Judgment pronounced on : 25th MARCH 2011. JUDGMENT : (Per Naresh H Patil, J.) : 1) The appellant, original accused No.1, was convicted for an offence punishable under section 302 of 2 Cri. Appeal No.655 of 2009 the Indian Penal Code by judgment and order dated 30-10-2009 passed by the learned Additional Sessions Judge Nanded in Sessions Case No.38 of 2006 and was sentenced to suffer rigorous imprisonment for life with fine of Rs.1000/-. The appellant was also convicted for an offence under section 25/4 of the Arms Act and was sentenced to suffer rigorous imprisonment for six months with fine of Rs.500/-. 2) The prosecution case, in short, is that, on 25-11-2005 the deceased Rajendrasingh was sitting in a hotel of Datta having tea. Some altercation took place between him and the appellant Shersingh Gill. It is alleged that the appellant assaulted the deceased with sword on his hand. Original accused No.4 - Banti @ Indrapalsingh was also present there. Rajendrasing filed a complaint in respect of the said incident at Vazirabad Police Station. 3) On 26th November 2005 at about 8.00 p.m. PW 1 Hardeepsingh Ragi, his cousin Arvinarsingh and deceased Rajendrasingh were proceeding from Nagina Ghat after having Darshan in Gurudwara to their house. It is alleged 3 Cri. Appeal No.655 of 2009 that, the appellant along with three original accused persons came there. The appellant pushed deceased Rajendrasingh. Some altercations took place between the appellant and Rajendrasing. Thereafter, original accused No.3 - Surjeet Kaur caught hold hands of the deceased. It is the case of the prosecution that appellant assaulted deceased with a sword on his chest. Original accused No.2 - Inderjeetsing assaulted on left arm with a dagger and original accused No.4 - Banti @ Indrapalsing assaulted with dagger on chest of the victim. The deceased fell down on the spot. The accused ran away. PW 1 - Hardeepsingh Ragi saw the incident and he started shouting. One Premjotsingh was proceeding from the spot of incident on a motor cycle who took the deceased to the hospital. After examination of the deceased, doctor opined that he was dead. A complaint was lodged to the police on the same day (Exhibit 42). The police started investigation of the crime. During investigation, police drew spot panchanama, seized weapons used in the commission of the crime, Pagadi and Chappal of the deceased, recorded statements of witnesses. The articles seized were sent for examination of Chemical Analyser. PW 9 Dr. Pawar conducted post 4 Cri. Appeal No.655 of 2009 mortem on the dead body of the deceased. Post mortem report is at Exhibit 87 of the record. According to the medical officer, the deceased died due to "shock due to injury to vital organs”. The police filed charge sheet against four accused persons. 4) According to PW 11 – Devidas Shelke, the investigating officer, the appellant too Shersingh filed a complaint. The investigating Officer had produced copy of the FIR lodged by appellant Shersingh against Basantsing Ragi, Hardeepsingh Ragi and deceased Rajendrasingh. It is at Exhibit 126. The said complaint was lodged on 27-11-2005 by the appellant. 5) The prosecution examined 11 witnesses in this case. PW 1 Hardeepsingh and PW 10 - Sevaksing Pujari deposed as eye witnesses to the incident. PW 9 is Dr. Pawar, who conducted post mortem on the dead body and described the injuries on the person of the deceased. PW 4 - Rajeshwar Sainwar is the panch to the spot panchanama. PW 11 - Devidas, is the investigating officer. 5 Cri. Appeal No.655 of 2009 6) PW 1 - Hardeepsing deposed before the Court that the appellant assaulted the deceased with sword on his chest and original accused No.2 - Inderjeetsing Gill assaulted on left arm while accused No.4 - Banti assaulted with dagger on the chest of the deceased. During process of trial original accused No.4 - Banti died, therefore, the sessions trial stood abated against him. The trial Court had acquitted original accused No.2 - Inderjeetsing Gill and accused No.3 - Surjeet Kaur Gill of the charges levelled against them. 7) The witness deposed that, at the time of incident appellant was coming from opposite direction. He denied the suggestion that deceased was also assaulted with sword. He further denied that the deceased had assaulted the appellant with sword and due to which he sustained five bleeding injures and blood started oozing from those injuries. The witness admitted that a counter case in respect of the said incident is pending against the deceased and Basantsing but the said case was false. The witness stated that the allegations that the accused in the counter case gave kicks and fist blows to the appellant 6 Cri. Appeal No.655 of 2009 were also not correct. The injuries caused to the deceased were also described by the witness. 8) PW 10 is Sevaksing Pujari, who is a priest. The witness supported the prosecution case and stated that the appellant assaulted the deceased Rajendrasing with a sword and accused No.4 - Banti assaulted the deceased with Khanjar (dagger) on his chest. He further deposed that accused No.2 - Inderjeetsing assaulted on the hands of the deceased with dagger and accused No.3 - Surjeet Kaur had caught hold hands of the deceased. The witness had been to the hospital after Rajendrasing was taken to the hospital where Hardevsing told him that due to enmity the appellant assaulted Rajendrasing. The witness identified the accused in Court. The witness was at a distance of 10 to 15 ft from the spot. He did not see any injury on the person of the appellant. 9) PW 8-Basantsing Ragi is brother of the deceased who had seen the appellant having sword in his hand and original accused No.4 - Banti was having dagger in his hand. He had also seen Inderjeetsing having sword in his 7 Cri. Appeal No.655 of 2009 hand and they were all going to Nagina Ghat. Somebody told the witness that his brother was murdered and he was assaulted with sword and dagger. The witness specifically names Hardevsing, who informed him about the assault. Younger sister of the appellant is wife of brother of PW 8 Basantsing. 10) PW 9 is Dr. Pawar who conducted post mortem on the dead body of the deceased Rajendrasing Jeetsingh Ragi. The Medical Officer noticed following six injuries on the person of the deceased: (1) stab wound over left side of chest in inframamillary area, with lower acute angle and clean cut margins, 3 x 2 cm and cavity deep. Blood oozing. (2) stab would over left lateral aspect of chest, near 8th intercostal space region, 1 x 1/2 cm. acute angles and muscle deep, blood oozing. (3) scratch abrasion over left cheek, horizontally placed of 3.1/2 x 1/4 cm. reddish. (4) stab would over left arm over upper third area, horizontally placed, 4 x 2 cm and muscle deep, blood oozing. (5) Chop wound over left elbow postero lateraly of size 14 x 4 cm and bone deep. Muscle clean cut, blood oozing. (6) Contusion present in between injury No.4 & 5, over middle third of left arm lateraly, diffuse margins of 5 x 2 cm. reddish. 8 Cri. Appeal No.655 of 2009 All the injuries were ante mortem. There was fracture of 5th and 6th ribs on left side, according to the medical officer. Injuries Nos.1,2 and 4 were possible with sharp pointed weapons. Injury No.3 was possible with sharp and heavy weapon. The medical officer found chest wall hematoma over left side with fractured ribs 5th and 6th extravasation was present. The medical officer noticed cut over pleura corresponding to injury No.1 of column 17. Right lung was pale and and a stab on lower lobe on medial aspect of left lung was noticed. The medical officer noticed cut present over pericardium with 30 ml blood present. The post mortem report is at Exhibit 87. The medical officer opined that all the said injuries were possible by dagger and sword before the Court. In the cross- examination the witness stated that injury Nos.1,2 and 4 could be possible at a distance of 3 to 4 inches between the injured and the assailant. Injury No.4 could be possible due to use of weapon in horizontal position. The weapon was used vertically while causing injury Nos.1 and 2, according to the medical officer. 9 Cri. Appeal No.655 of 2009 11) PW 4 is Rajeshwar Sainwar who is panch for the spot panchanama. He has proved the contents of the panchanama which is at Exhibit 67. The witness was shown muddemal chappals, black piece of cloth, the sword. The witness identified all the said muddemal articles. There was blood on the cement road and according to the witness the police collected it in two bottles. 12) PW 11 - Devidas Shelke, Investigating Officer, in his evidence deposed before Court that, during process of investigation of the said case he received a complaint from the appellant Shersing. On the basis of the said complaint Crime No.269 of 2005 was registered. The said complaint is at Exhibit 126. The certified copy of the FIR lodged by the appellant was shown to the witness. Chemical Analyzer's reports are at Exhibits 124 and 125. The police filed charge sheet in Crime No.268 of 2005 which was registered on 26-11-2005 at 10.30 p.m. The investigating officer stated before Court that during investigation it transpired that injuries sustained on the person of the appellant were caused by Hardevsing and Basantsing and 10 Cri. Appeal No.655 of 2009 not Rajendrasing. The incident took place on busy traffic road. Nagina Ghat Gurudwara is adjacent to the spot of the incident. A complaint was lodged by Rajendrasing on 25-11-2005 in respect of assault made on him by the appellant. The said complaint was registered in the NC registered (Exhibit 123). 13) The learned counsel Shri. V.N. Damle appearing for the appellant submitted that the eye witness PW 4 is interested witness. He is brother of the deceased. He does not explain injury on the person of the appellant. The trial Court had disbelieved the version of the prosecution and acquitted original accused Nos.2 and 3. The counsel submitted that the prosecution has failed to establish that the fatal injury i.e. injury No.1 was caused by the appellant with the help of sword. The evidence of the eye witnesses goes contrary to the medical evidence. In respect of other witness like PW 10, the counsel submitted that the police recorded statement of this witness on 28-11-2005. this witness too does not explain the injuries on the person of the appellant. PW 8 is another eye witness who is 11 Cri. Appeal No.655 of 2009 suppressing true facts, according to the counsel. In respect of evidence of PW 11 - the Investigating Officer, it is submitted that, the Investigating Officer visited the spot in night hours but he did not seize the articles like sword, chappal lying on the spot of incident. Seizure of the articles therefore looses its significance and there is likelihood that the muddemal articles were planted later on. 14) In the alternative, the counsel submitted that, the appellant is raising plea of private defence. The appellant was assaulted by the deceased with the help of sword who suffered 5 injuries though simple in nature. To save his life, the appellant gave one blow to the deceased but not of so serious nature that due to which deceased would have died. According to the prosecution, original accused No.4 - Banti assaulted with dagger on the chest region of the deceased. The counsel submits that the fatal injury is not caused by the appellant, therefore, benefit must go to the appellant. In case right of private defence is not made available to the appellant then, the counsel submits that, in absence of ambiguity in respect of the 12 Cri. Appeal No.655 of 2009 author of the fatal blow, benefit must go to the appellant as he is the only accused who is convicted and sentenced to undergo life imprisonment. The learned counsel submitted that, the trial Court did not consider the present case in respect of application of the provisions of Section 34 of the Indian Penal Code properly due to death of accused No.4 - Banti which has caused serious prejudice to the appellant. The prosecution has not established as to who assaulted the deceased first and whether the appellant was the aggressor. The counsel referred to Question Nos.7 and 26 framed by the trial Court under the provisions of Section 313 of the Code of Criminal Procedure. The counsel has placed reliance on the following judgments in support of his contentions. (1) Lakshi Singh v. State of Bihar, AIR 1976 SC 2263; (2) Amarjitsing Sarbatsing Johal v. State of Maharashtra, 2008 ALL MR (Cri) 1520; (3) State of Maharashtra v. Pandhari Chindhu Lakhe, 2008 ALL MR (Cri) 1528; (4) Babu Ram v. State of Punjab, (2008) 2 SCC (Cri) 727. 13 Cri. Appeal No.655 of 2009 15) The learned counsel for the appellant submitted that the prosecution shall explain injuries on the accused and failure thereof would assume greater importance where the evidence consists of interested or inimical witnesses. [Babu Ram v. State of Punjab, (2008) 2 SCC (Cri.) 727]. It was submitted that accused were members of Sikh Community and under religious tenets, accused are entitled to possess sword. [Amarjitsing Sarbatsing Johal v. State of Maharashtra, 2008 ALL MR (Cri.) 1520]. It was further submitted that injuries sustained by accused shall be explained by the prosecution failure thereof would render prosecution evidence unreliable for want of plausible explanation. [State of Maharashtra v. Pandhari, 2008 ALL MR (Cri.) 1528]. It was submitted that, benefit should go to the appellant if prosecution has suppressed the genesis and the origin of the occurrence. [Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263). 14 Cri. Appeal No.655 of 2009 16) The learned Additional Public Prosecutor submitted that, the appellant filed complaint on 27th November 2005 in respect of incident of 25th November 2005. It was but natural that in case the appellant had really suffered injury on 25th November 2005 there was no reason for the appellant to wait for two days. This itself shows that to counter blast the present case, the appellant had filed a complaint on 27th November 2005 alleging that the appellant had assaulted him with the help of sword on 25th November 2005. The defence had even failed to make out a case of private defence. Even from the facts of the case it cannot be inferred that right of private defence could be made available to the appellant. The evidence of eye witness PW 10 is believable. PW 10, a priest, is an independent witness and there is no reason for him to falsely involve the appellant. The learned APP submitted that, in the light of the evidence of the investigating officer, the prosecution was not bound to explain the injuries on the person of the appellant in case they were there. It was submitted that though the defence stated that, the prosecution was bound to explain the injuries on the appellant, in the facts of the case, in absence of there being 15 Cri. Appeal No.655 of 2009 any material on record which is legally admissible to say that the accused suffered injuries in the same incident wherein the deceased was assaulted and he succumbed to the injuries, the prosecution is not entitled to explain such injuries. The APP submitted that, the appellant was seen armed with sword, there was previous grudge in the mind of the appellant of the earlier day. There was some quarrel between the appellant and the deceased. The deceased had lodged a complaint against the appellant and a NC case was registered. In the submission of the Additional Public Prosecutor, the medical evidence is absolutely clear which is in consonance with the prosecution case. The APP has placed reliance on the judgment of the Apex Court in Kashiram v. State of M.P., (2002) 1 SCC 71 in support of his submissions. 17) We have perused the evidence on record and the original Record and Proceedings and considered the submissions advanced by the learned counsel for the parties. We find that, the relations between the appellant and the deceased were strained. A complaint was made by the deceased on 25th November 2005 which was 16 Cri. Appeal No.655 of 2009 registered by Vazirabad police in respect of the conduct of the appellant. On the day of the incident, the appellant was seen armed with sword along with others. Considering the injuries on the person of the deceased it can be safely gathered that the assault was a murderous one. The fatal injury on the chest of the deceased was serious enough. The deceased suffered two serious injuries on his chest. According to the Medical Officer, all the injuries were possible due to dagger and sword, muddemal articles before the Court. The prosecution consistently stated that, it was the appellant who used sword to assault the deceased on his chest. The deceased had suffered fracture to 5th and 6th ribs. The deceased collapsed on the spot and died. 18) The first set of defence as submitted by the learned counsel for the appellant is that, the appellant assaulted the deceased in exercise of his right of private defence which could be even inferred from the facts. It need not be specifically raised. In the facts of the case we do not find that the appellant could raise this defence convincingly. The basis for raising this defence is that first 17 Cri. Appeal No.655 of 2009 the deceased had assaulted the appellant and caused 5 injuries and thereafter the appellant assaulted the deceased. Except a copy of the FIR brought on record through the evidence of the investigating officer, there is nothing on record to establish that how many injuries the appellant had suffered and the nature of the injuries. It is true that, a criminal trial before the same Court was conducted on the basis of complaint filed by the appellant but the accused were acquitted in that case, according to the counsel. It is submitted that the injuries on the person are sufficient to establish that the deceased had first assaulted the appellant. The counsel submitted that the appellant suffered injuries, though simple in nature. In the light of the evidence on record, we reject the submissions of the learned counsel in respect of plea of right of private defence. 19) The second set of defence is that as the prosecution has failed to establish the case in respect of author of injury No.1, the appellant cannot be fastened with liability of the same and punished for the serious offence. The defence submitted that injuries must have 18 Cri. Appeal No.655 of 2009 been caused due to assault by dagger and not by sword. The Medical Officer opined that these injuries could be possible by both the dagger and sword. The eye witness account shows that, the serious injuries were caused with the help of a sword by the appellant. Considering the nature of evidence we can safely hold that, the appellant is the author of the serious injury caused to the deceased with the help of a sword. Even other wise, in the light of the fact that, the appellant was charged for an offence punishable under section 302 read with Section 34 of the Indian Penal Code, the appellant could be held liable for the death of the deceased. Common intention is not same or similar intention. It is not necessary that preconcert in the sense of a distinct previous plan is necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between number of persons which has to be gauged on the facts and circumstances of each case. 20) Merely because original accused No.4 - Banti was dead and could not be tried, seriousness of the act committed by the appellant and existence of his 19 Cri. Appeal No.655 of 2009 involvement and liability is not diminished. The appellant's role is required to be considered in the light of the charge framed against him. 21) The scope and ambit of the provisions of Section 34 of the Indian Penal Code was considered by the Apex Court in a reported judgment in Y. Venkaiah v. State of Andhra Pradesh, (2009) 12 SCC 126. Paragraphs 22, 23 and 24 of the report read thus : "22. It is true that Section 34 does not create any substantive offence and is basically a rule of evidence. But the crucial words in this section are "in furtherance of the common intention of all" which originally were not there when the section was enacted in the Penal Code of 1860. Section 34, as enacted in the Penal Code of 1860, ran as follows: "34. Acts done by several persons in furtherance of common intention.-- When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone." The words "in furtherance of the common intention of all" came by way of amendment, by Act 27 of 1870, to widen the scope and sweep of the section. 20 Cri. Appeal No.655 of 2009 23. The felicitous phrase "in furtherance of the common intention", was first coined by the Chief Justice Barnes Peacock, sitting in the Full Bench of the Calcutta High Court, and while rendering the decision in R. v. Gorachand Gope and on 3-3-1866 (Beng LR Supp at p.456). The views of the Chief Justice in Gorachand Gope possible inspired the amendment in 1870. Since then, Section 34 has been judicially interpreted in a large number of decisions. 24. Lord Sumner speaking for the Privy Council in Barendra Kumar Ghosh v. Kind Emperor opined against a narrow construction of that section and said : " ... As soon, however, as the other sections of this part of the Code are looked at, it becomes plain that the words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense." The learned Law Lord came to this conclusion by interpreting Section 34 in the context of Section 33 of the Penal Code. .......". 22) Considering the evidence on record we find that on both the counts the case of the appellant cannot be considered for granting benefit to him. The contentions are not convincing and acceptable one. 23) We find that the prosecution has established its case beyond reasonable doubt. The charge levelled against the appellant in respect of offence punishable under section 302 of the Indian Penal Code is established. 21 Cri. Appeal No.655 of 2009 24) There is no merit in the appeal. The appeal is dismissed. Sd/- Sd/- (T.V. NALAWADE, J.) (NARESH H PATIL, J.) rsl