1 cri-appeals-892-893-90.doc pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 892 OF 1990 (Against acquittal) The State of Maharashtra .. Appellant Versus 1. Haribhau Mahadu Talwade (dead) age 50 years. 2. Kisan Haribhau Talwade age 26 years. 3. Nivrutti Haribhau Talwade (dead) age 22 years. 4. Rajaram Haribhau Talwade age 20 years. All R/o Village Karanjale, Taluka Junnar, District – Pune .. Respondents (Org. Accused) WITH CRIMINAL APPEAL NO. 893 OF 1990 (For Enhancement of Sentence) The State of Maharashtra .. Appellant Versus Haribhau Mahadu Talwade age 50 years, R/o Village Karanjale Taluka Junnar, Dist. Pune .. Respondent (Org.Accd.No.1) 2 cri-appeals-892-893-90.doc Ms. M. H. Mhatre, APP for State. Mr. Rahul Kate for respondents. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. July 15 & 20, and August 1, 2011. ORAL JUDGMENT( PER B. H. MARLAPALLE,J.): 1. Both these appeals are directed against the order dated 31/8/1990 passed by the learned 5th Additional Sessions Judge at Pune in Sessions Case No. 431 of 1989. In the said case four accused were tried for the offences punishable under Sections 302 and 506 (II) read with Section 34 of IPC and by judgment and order impugned in these appeals, the learned Additional Sessions Judge was pleased to acquit all the accused for the offences punishable under Sections 302 and 506 (II) read with Section 34 of IPC. However, accused no.1 came to be convicted for the offence punishable under Section 325 of IPC and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs.5000/-, in default to undergo RI for one year. Hence, Criminal Appeal No. 892 of 1990 has been filed against the order of acquittal under 3 cri-appeals-892-893-90.doc Sections 302 and 506 (II) read with Section 34 of IPC against all the accused and Criminal Appeal No. 893 of 1990 has been filed for enhancement of sentence against accused no.1. Accused no.3 – Nivrutti Haribhau Talwade died during the pendency of these appeals hence Criminal Appeal No.892 of 1990 stands abated against him. 2. As per the prosecution case, the second wife of accused no.1 did not have a brother and on the demise of her father, her mother adopted one Tukaram son of Sitaram Kharsule of the same village i.e. Karanjale, Taluka – Junnar, District Pune. It appears Tukaram was already married, having two children and within short time of his adoption, his adopting mother died and thus the property which could have gone to the wife of accused no.1 became the property of Tukaram son of Sitaram Kharsule. Accused No.1 is the father of accused nos.2 to 4 and his house is in the neighbourhood of the house of Sitaram Kharsule. On 22/4/1989 between 7.30 to 8.00 p.m., Sitaram Kharsule heard the abuses being hurled on him by accused no.1 and accused no.1 was sitting in his house. Sitaram, therefore, went to him and questioned him and in that there was a quarrel between the two. Accused Nos.2 to 4 were also present in the house, but in the cow-shed. Accused No.1 picked up a wooden stick and started 4 cri-appeals-892-893-90.doc assaulting Sitaram just outside his house and in the courtyard of the house of Shivram. This was seen by PW 7 – Yeshwant Janardhan Kharsule and when he saw Sitaram collapsed with bleeding injuries on his head he raised alarm. His parents i.e. Janaradhan Kharsule and Smt.Savitri Kharsule (PW 3) rushed to the spot which was just about 10 ft. away from the house of accused no.1. Both of them tried to intervene when the accused was assaulting Sitaram, who had already collapsed and at that stage accused no.1 gave a stick blow around the head of Janardhan causing bleeding injury. The incident was also claimed to have been seen by other neighbours like Ramu Sonu Kharsule (PW 4), Daulat Ananda Talwade (PW 5) and Yeshwant Kharsule (PW 7). In the incident accused no.1 was also injured and, therefore, Sitaram, Janardhan were rushed to the hospital at Primary Health Centre at Madh. Accused No.1 was also taken to the same hospital. The Medical Officer on duty (Dr.Mahendra Ahiwale – PW 8) examined all the three and noticed that Sitaram was unconscious and, therefore, he was directed to be taken to the hospital at Junnar. Janardhan, Savitribai, Yeshwant and accused no.1 were treated at Primary Health Centre at Madh, and except accused no.1 all the three were discharged and they went home. When Sitaram was taken to the hospital at Junnar he was declared dead. On the next date i.e. 23/4/1989, 5 cri-appeals-892-893-90.doc Janaradhan’s health also deteriorated and, therefore, he was taken to Sassoon Hospital at Pune but while under treatment, he died around the mid-night. The accused nos.2 to 4 were taken in custody on 23/4/1989 and accused no.1, on his discharge from the hospital, was arrested on 24/4/1989 by Babasaheb Shaikh, PSI (PW 9). From 27/4/1989, the investigation was taken over by Sahaji Salunkhe (PW 10). After drawing the inquest panchanama, the dead body of Sitaram was sent for post mortem and Dr. Gulab Ekahande (PW 13), Medical Officer at Cottage Hospital at Junnar, conducted the post mortem and signed the report at Exh. 61. Whereas Dr. Sudhir Nanandkar (PW 12) conducted the post mortem of the dead body of Janardhan and signed the post mortem report at Exh. 59. The clothes on the person of the deceased as well as the accused no.1 along with the stick which was used by accused no.1 and collected from the spot were sent for chemical analysis and PW 11 Shankarrao Deshmukh, PSI, received the C.A. Reports. On completion of investigation, charge-sheet was filed on 16/8/1989 and on committal of the case, the charge was framed by the learned Additional Sessions Judge on 11/1/1990 (Exh.2). 3. The prosecution examined in all 13 witnesses and as noted 6 cri-appeals-892-893-90.doc earlier, PW 9, PW 10 and PW 11 were the police officers, PW 8, PW 12 and PW 13 were the Medical Officers and PW 1 and PW 2 were the panch witnesses. The prosecution claimed that PW 3 – Savitri Kharsule, PW 4 – Ramu Kharsule, PW 5 – Daulat Talwade, PW 6 – Ramdas Kharsule and PW 7 – Yeshwant Kharsule were the eye witnesses. However, PW 6 – Ramdas Kharsule turned hostile and did not support the case of the prosecution. However, in his cross-examination, he admitted before the trial court that around 7.30 p.m. on the date of the incident he had heard accused no.1 hurling abuses to the deceased Sitaram. The trial court, on assessment of the evidence, so adduced, held that the prosecution failed to prove the charge of murder as well as the threat to cause murder of Sitaram Vitthal Kharsule as well as Janaradhan Bhawant Kharsule against the accused. However, the trial court held that the offence punishable under Section 325 of IPC was proved against accused no.1 for causing injuries to deceased Sitaram as well as Janardhan during the incident on 22/4/1989 at 8.00 p.m. and therefore, he was sentenced to suffer imprisonment till rising of the court. The trial court also held that the prosecution failed to prove the charge of criminal intimidation against the accused by threatening PW 3 – Savitri Kharsule and PW 7 – Yeshwant Kharsule. Surprisingly, the trial court did not frame the main 7 cri-appeals-892-893-90.doc and basic issue as to whether Sitaram and Janardhan died a homicidal death and when the post mortem reports were not admitted by the defence. The defence had admitted the inquest panchanama (Exh.14) and the inquest panchanama (Exh.18) as well as the recovery panchanamas at Exhs. 15 to 17 drawn on 23/5/1989. 4. The trial court discarded PW 3 – Savitribai, PW 4 – Ramu Kharsule, PW 5 – Daulat Talawade and PW 7 - Yeshwant Kharsule as the eye witnesses. As per the trial court the version of the eye witnesses was not trustworthy and on the other hand the evidence of the prosecution proved that deceased Sitaram and his party was aggressive and had caused injuries to accused no.1. The trial court also held that the prosecution failed to explain as to why accused no.1 had sustained injury. As per the trial court the spot of the incident had some stones, one stone platform and stone benches. There was an exchange of abuses between accused no.1 and Sitaram and PW 7 – Yeshwant did not state anything about the involvement of accused nos.2 to 4 and more particularly the role attributed to them in causing injuries to Janaradhan himself and his mother. As per the trial court, the prosecution witnesses had tried to exaggerate the prosecution story and it was difficult to accept their 8 cri-appeals-892-893-90.doc versions in support of the prosecution case. Though it discarded all other eye witnesses and accepted PW 7 – Yeshwant Kharsule as the eye witness, but it held that the conviction could not be based on his sole testimony and more so because he was the son of the deceased Janardhan. 5. Let us first examine the medical evidence. PW 8 – Dr. Mahendra Ahiwale was the Medical Officer on duty at Primary Health Centre, Madh on 22/4/1989 when the deceased, PW 3, PW 7 and accused no.1 were taken to the said hospital. He stated before the trial court that about 10.10 p.m. he had examined Sitaram and noticed the following injuries on his person and all the injuries were of grievous nature and were caused by hard and blunt object (like stick and stone):- (i) C.L.W. 2”x1/2” size bone deep over the scalp forehead at junction of parietal and frontal bone. (ii) C.L.W. 1” x 1” size bone deep over the scalp in the midline. (iii) C.L.W. 3” x 2” bone deep scalp parietal bone over the scalp left side occipital suture. 9 cri-appeals-892-893-90.doc (iv) C.L.W. 6”x2” bone deep scalp near the junctional parietal occipital bone left side. (v) C.L.W. 2” x 2” bone deep, scalp backside parietal bone, left from midline. (vi) C.L.W. 3”x3” bone deep scalp parietal bone right of the back side. He had issued the certificate at Exh. 37 and all the injuries were within 4-6 hours prior to the medical examination. He also specifically stated that all the six injuries could be caused by the stick (Art. 10). 6. He had also examined Janardhan Kharsule and noticed the following two injuries:- (i) Abrasion ½ cm x ½ cm Size superficial over the right calviole bone – simple. (ii) Haematoma 2”x3” size superficial left, parietal region of the scalp. 10 cri-appeals-892-893-90.doc As per him, both the injuries were simple, caused by hard and blunt object. He also clarified that though injury no.2 appeared to be simple, it could cause internal damage and the age of both the injuries was within 4-6 hours. The patient was under fear, depression and delusion due to acute paranoid state of mind due to psychological trauma. The doctor had given him primary treatment and asked him to come on the next day to the OPD. He further stated that Article 10 – stick could cause injury no.2 and the injury no.1 could be caused by pelting stones. He confirmed to have issued the medical certificate at Exh. 38. 7. PW 13 – Dr. Gulab Ekahande was the Medical Officer at Primary Health Centre, Madh on 23/4/1989 and he had received the dead body of Sitaram for post mortem, which he conducted between 2.30 p.m. to 3.30 p.m. On external examination he found the following injuries on the person of Sitaram:- (i) On the skull linear cut injury (total three) seen on 11 cri-appeals-892-893-90.doc forehead size 3x2 cms. each. (ii) C.L.W. on occipital region size 7x3 cms. He further stated that he noticed the following internal injuries, which were ante-mortem:- (i) Right side temporal bone fracture seen about 8 cm. in length. (ii) Left side No.7 and 8 ribs were fractured. (ii) Left lung, lower lobe ruptured and blood was seen in the thoracic cavity. 8. The doctor opined that the cause of death of Sitaram was cardiorespiratory failure due to haemorragic shock due to fracture of temporal bone, fracture of ribs and other multiple injuries. He confirmed to have signed and issued the post mortem notes at Exh. 61. He further stated that the internal injuries were possible by stick (Art.10). Mr. Kate, the learned counsel for the accused relied upon the testimony of this witness and pointed out that the doctor had stated that the external injuries were cut injuries and they were possible by sharp object. It was 12 cri-appeals-892-893-90.doc submitted by Mr. Kate that there was no sharp object recovered and what was recovered were a stick and stones. Mr. Kate also relied upon the cross-examination of this witness wherein he had stated that crack fractures could be caused by a dash against a hard object, whereas PW 8 – Dr. Mahendra Ahiwale in his cross-examination stated that injuries to Sitaram were caused by the upper portion of the stick (Art.10), whereas Articles 6 and 11 – stones could be pelted at a small distance and they could cause corresponding injuries surrounding the main injuries on the other part of the body. He further stated that there were no such corresponding injuries on the person of Sitaram except the head injury. The doctor specifically stated that the injuries to Sitaram were caused by independent blow by Art.10 and as per him six blows with the same article must have been given to Sitaram. In the case of Mayur Panabhai Shah vs. State of Gujarat [AIR 1983 SC 66], the Supreme Court held, “....Our courts have always taken the doctors as witness of truth. Even where a doctor has deposed in court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth....” 13 cri-appeals-892-893-90.doc In the instant case, there is no denial that Sitaram sustained as many as six injuries on or around his head and those proved to be the cause of his death. PW 8 Dr. Ahiwale was the earliest Medical Offier, who had examined Sitaram and, therefore, there is no reason to discard his evidence only because PW 13 – Dr. Gulab Ekahande stated before the court that the injuries caused to Sitaram could be by a sharp object. We, therefore, do not have any hesitation to hold that Sitaram died a homicidal death and on account of six head injuries suffered by him. 9. PW 12 – Dr. Sudhir Nanandkar had conducted the post mortem of the dead body of Janardhan and signed the PM notes at Exhibit 59. At the relevant time he was working with the Sassoon Hospital at Pune and had conducted the post mortem on 24/4/1989. He stated before the Court that he noticed the following external injuries on the dead body of Janardhan: (1) Contusion / swelling, left side of occipital region of scalp, diffuse, size approx 6x5x1 cm cut section dark red with bluish tinge. 14 cri-appeals-892-893-90.doc (2) Contusion / swelling over left temporal region of scalp, size approx 4x3x0.6 cm cut section dark red with bluish tinge. (3) Superficial contusion over right elbow, dorsal aspect, 3x2x0.5 cm dark red bluish tinge on cut section. (4) Irregularly obliquely linear abraded contusion seen over postero superior aspect of left shoulder ball, size about 9x3x1 cm cut section dark red with bluish tinge. (5) Contusion left scapular region of back, size 6x3x1 cm dark red blue on cut section. (6) Contusion, right scapular region of back size 5x3x1 cm dark red blue on cut section. He further stated that he suspected fracture of skull bones and all the above injuries were ante mortem. On internal examination of head he found subgleal haematoma seen in left temporal, left parietal and left side of occipital regions, dark red with bluish tinge. Skull vault showed a linear fracture starting 2.5 cm behind and to the left of Lambda (over left side of occipital bone) and reaching left temporal bone (petrous part) traversing left parietal bone through and through length approximately 16 cms. edges dark red and bilateral subdural haematoma 15 cri-appeals-892-893-90.doc about 120 cc dark red and bilateral subsaraachnoid haemorrhage dark red. The left occipital lobe contused and dark red and the right frontal lobe extensively lacerated with evidence of necrotic changes. As per him the cause of death was “shock due to head injury in the form of fracture of skull bones with intracranial haemmorhage with lacerations of brain.” The doctor further stated that the injuries in Column No.17 of the PM report were possible by pelting stones like Articles 6 and 11 and Injury Nos.1 and 2 in Column 17 were possible by stick like Article 10. In his cross-examination he stated that the fracture of any bone would create more pain which would be unbearable and the patient may cry. He also denied the suggestion that the injuries are easily visible but could be detected through external examination. He also admitted that injury nos.1 to 6 were possible in extraordinary circumstances if the person forcibly falls on stones. He denied the suggestion that all the injuries were possible if the person dashes with a bench. The evidence of this witness read with the PM report at Exhibit 59 proved beyond doubt that Janardhan died a homicidal death and on account of the injuries he sustained during the incident that had taken place around 8 p.m. on 23/4/1989. Thus, in the incident Sitaram as well as Janardhan lost their lives and they were done to death and the injuries sustained by them 16 cri-appeals-892-893-90.doc proved to be fatal. 10. Now, therefore, we proceed to consider the evidence of the eye witnesses so as to examine whether the prosecution has proved its case against the accused in causing the homicidal death of Sitaram and Janardhan. Let us first consider the evidence of PW 7 – Yeshwant Kharsule and PW 3 – Savitribai Kharsule who were the injured eye witnesses. As per PW 7 after his dinner around 8 p.m. he had gone to the Maruti temple on the date of the incident and his parents were at home. He noticed that while in his house accused no.1 was abusing Sitaram and his son Tukaram. Sitaram came to the house of the accused no.1 and enquired as to why he was abusing him. Accused no.1 picked up a stick and assaulted Sitaram whereas accused nos.2 to 4 who were present in the cowshed started pelting stones on Sitaram and he collapsed. Hence PW 7 raised shouts and after hearing that, his parents reached the spot. His father tried to intervene but the accused no.1 gave him a stick blow on his head. Accused no.1 also assaulted PW 3 – Savitribai with the same stick. On hearing commotion Daulat, Shankar and Ramu also reached the spot and they rescued the victims. He brought his parents to his house and in the bullockcart of Maohar Chavan took his father and Sitaram to 17 cri-appeals-892-893-90.doc Madh Police outpost and from there they were taken to the Madh Hospital. Sitaram was thereafter taken to Junnar Hospital as he was unconscious but PW 7 returned home along with his parents. On the next day his father was taken to Junnar hospital and from there to Sassoon Hospital. He also stated that he was beaten by the accused no.1 by the very same stick. He identified the stick shown to him in the Court – article no.1 as well as article nos.6 and 11 – stones which were used by accused nos.2 to 4. In his cross-examination he admitted that there was exchange of abuses between accused no.1 from one side and Sitaram and his son from the opposite side. Accused nos.2 to 4 were holding stones in both their hands but he could not tell how many blows were given by the accused. He stated that accused no.1 had given 10 to 12 blows of stick on the head of Sitaram. He also admitted that when he raised alarms, his parents reached first and thereafter the other witnesses has reached the spot. He denied the suggestion that he had not witnessed the incident. He also expressed his ignorance regarding the injuries suffered by accused no.1 This by itself cannot be a reason to discard this witness as an eye witness. 18 cri-appeals-892-893-90.doc 11. PW 3 Savitribai is the wife of the deceased Janardhan and mother of PW 7 – Yeshwant. Sitaram was her brother-in-law. Ramchandra was also her brother-in-law and he was no more. He had three daughters and the youngest daughter by name Laxmibai was married to accused no.1 but her whereabouts were not known during the last ten years. Ramchandra was Police Patil and on his death his brother Janardhan became police patil. Gangubai, widow of Ramchandra had adopted Tukaram, son of Sitaram. About the incident she stated that after his dinner around 8 p.m. Yeshwant had gone to Maruti temple to chitchat with his friends and she was at home with Janardhan. She heard shouts near the temple and in the voice of her son Yeshwant. Hence both of them had gone towards the temple and found that the accused were assaulting Sitaram and her son Yeshwant. Accused no.1 was holding a stick and accused nos.2 to 4 were holding stones. She and her husband tried to separate the victims from the attack and at that time her husband received a stick blow on his head. When she tried to intervene, at that time she also received a stick blow on her back. Daulat, Shankar and Ramu had taken Sitaram to their house and thereafter all the injured were taken to the hospital at Madh by the same persons. On the next day she 19 cri-appeals-892-893-90.doc came to know that Sitaram was dead and her complaint was recorded at Exhibit 30. Her husband was initially treated at Junnar and thereafter taken to Sassoon Hospital at Pune by Shankar Prabhakar Chavan. While under treatment her husband died. She identified the Article 10 – stick and Articles 6 and 11 – stones used in the assault. In her cross- examination she admitted that Tukaram was adopted by Gangubai four years prior to the date of incident and at that time Tukaram was also married with two sons. She also admitted that Ramu Sonu Kharsule is the nephew of Sitaram. The incident lasted for a few minutes. She also admitted that she could not tell as to which accused was assaulting whom and she could not also state at which place accused no.1 was assaulted but when she reached the spot all the accused were present there. She also stated that when she reached there, the other witnesses like Ramu, Daulat and Shankar were not present and they came later. She also admitted that accused no.1 had given one stick blow on the head of Janardhan. The evidence of this witness proved that she had not seen the assault on Sitaram and she reached the spot after Sitaram had collapsed. However, she was an eye witness to the assault on Janardhan as well as Yeshwant. Her evidence has also proved that PW 4 and PW 5 had reached the spot after the incident of assault was over. The injuries described by her on 20 cri-appeals-892-893-90.doc her person, on the head of Janardhan and on the person of Yeshwant have been supported by the medical evidence (PW 8 – Dr.Mahindra Ahiwale). She has proved that accused nos.2 and 4 had also participated in the incident along with their father and they had caused injuries by hitting stones to PW 7 – Yeshwant. She also denied the suggestion that Sitaram was also armed with stick and he had assaulted accused no.1 with the same stick and caused him injuries. She also denied the suggestion that Janardhan had assaulted accused no.1. She