1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.755 OF 2008 1, Bhimrao S/o.Pundlik Mhaske, Age-36 years, Occu-Agriculturist, 2. Prabhakar S/o.Madhavrao Mhaske, Age-25 years, Occu-Agriculturist, 3. Madhav S/o. Kundlik Mhaske, Age-55 years, Occu-Agriculturist, 4. Walmik S/o.Rangnath Mhaske, Age-24 years, Occu-Agriculturist, 5. Pandit S/o.Madhavrao Mhaske, Age-22 years, Occu-Agriculturist, 6. Pralhad S/o.Rangnath Mhaske, Age-22 years, Occu-Agriculturist, All R/o.Village Talni, Tq.Mantha, Dist. Jalna APPELLANTS VERSUS The State of Maharashtra Through Police Station, Mantha, Taluka Mantha, Dist. Jalna RESPONDENT Mr.M.A.Tandale, learned counsel for the appellants. Mr.B.V.Wagh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 16/09/2010 2 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present appeal, the appellants have questioned the legality and correctness of their conviction for the offence punishable u/s. 147 of The IPC, for which they are sentenced to suffer RI for 6 months and to pay fine in the sum of Rs.500/- each, i.d. to suffer further RI for one month. They are convicted for the offence punishable u/s. 148 of The IPC, for which they are sentenced to suffer RI for 1 year and to pay fine in the sum of Rs.500/- each i.d. to suffer further RI for 1 month. They are convicted for the offence punishable u/s. 323 r/w. 149 of The IPC, for which they are sentenced to suffer RI for 6 months and to pay fine in the sum of Rs. 500/- i.d. to suffer further RI for one month. They are also convicted for the offence punishable u/s. 302 r/w. 149 of The IPC, and sentenced to suffer life imprisonment and to pay fine in the sum of Rs.1,000/- each i.d. to suffer further RI for 2 months. All the substantive sentences were ordered to run con-currently in Sessions Case No.75/2008 vide judgment and order dated 17/12/2008, passed by the Additional Sessions Judge, Jalna. 2. Such of the facts as are necessary for the just decision of this appeal can be summarized as follows : P.W.No.10 P.S.I. Ganpat Satvaji Rahire was attached to Mantha Police Station. On 19/03/2008, at about 4.00 p.m., on the complaint (Exh.39) of one Dhrupadabai Arun (P.W.No.1), he registered an offence vide CR No.37/2008 against the appellants and Suman 3 Madhav Mhaske, Wandana Bhimrao Mhaske, Jyoti Prabhu Mhaske for an offence punishable u/s. 147, 148, 326, 307, 323, 504 r/w. 149 of The IPC and u/s. 135 of The Bombay Police Act. In the said police report, it is alleged by the said Dhrupadabai that in the night of 18/03/2008, at about 9.00 p.m., she alongwith her husband Arun (P.W.No.5), father in law Maruti (deceased), mother in law Chaturabai (P.W.No.4), after taking dinner, were chitchatting in the courtyard of their house. At that time, Bhimrao, appellant no.1 came there holding an axe in his hand. He started abusing Arun in filthy language by saying that he is not going to pay the share of compensation of the land acquired for the construction of tank. He gave blow of axe on the head of Arun. Arun collapsed on the ground. Complainant herself and other tried to intervene. At that time, remaining appellants and wives of Bhimrao, Madhav and Prabhu came there. They assaulted Chaturabai with fist and kick blows. Prabhu and Pandit assaulted Maruti with stick. Bhimrao assaulted Maruti with axe near his eyes, chest and back. Maruti and Arun sustained bleeding injuries. Both of them collapsed on the ground. The assailants, under impression that both the injured died on the spot, ran away from the spot. One Madhukar Sadavarte took the injured to Rural Hospital at Mantha, from where they were taken to Govt. Hospital at Jalna. Following to the registration of the offence, he visited the place of offence and prepared spot panchnama (Exh.41). From the place of offence, he has collected plain as well as blood mixed soil. In the same night, he arrested the appellants and others. At that time, he 4 seized the clothes (Article 3 and 4) on the person of appellant no.1 under the panchnama (Exh.57). Also seized the clothes on the person of Prabhakar, appellant no.2 (Article 6 and 7), under the panchnama Exh.58. Also seized the clothes (Article 1 and 15) on the person of appellant no.5 Pandit under the panchnama Exh.59. On 21/03/2008, appellant Bhimrao made disclosure statement (Exh.60) in the presence of witnesses. Pursuant to the said disclosure statement. an axe (Article 11) was recovered at his instance from his house under the recovery panchnama (Exh.61). On the same day, on the disclosure statement made by appellant Prabhakar, one stick (Article 10) was recovered at his instance from his house and seized under panchnama (Exh.63). On the same day, on the disclosure statement made by appellant Pandit (Exh.64), one stick (Article 12) was recovered and seized from his house and recovered under the panchnama Exh.65. Injured Maruti succumbed to his injuries on 23/03/2008. Accordingly information was received from Government Medical College and Hospital, Aurangabad. Hence the offence u/s. 302 of IPC was added in the said CR. Investigation Officer forwarded seized articles which were seized during the investigation to the chemical analyser alongwith forwarding letter (Exh.66). During investigation, he had recorded statement of certain witnesses. On 24/03/2008, he seized clothes of the deceased Maruti (Article 6, 13, and 14) under panchnama (Exh.70). Injured Arun produced his clothes (Article 16 and 17) which were seized under panchnama Exh.71. After completion of investigation, he filed charge sheet against the 5 appellants and others in the Court of J.M.F.C. Mantha. 3. After passing requisite committal order, J.M.F.C. Mantha has committed the trial against the appellants and others to the Court of Sessions at Jalna. 4. It appears that the Lower Court had framed the charge (Exh. 22) against the appellants and others for the offence punishable u/s. 147, 148, 324 r/w. 149, 302 r/w. 149, 323 r/w. 149 of IPC and u/s. 135 of The Bombay Police Act, to which appellant pleaded not guilty and claimed to be tried. Defence of the appellants is of total denial. 5. It appears from the record received from the Lower Court that to substantiate the charge lavelled against the appellants and others, prosecution has examined total 11 witnesses including P.W.No.1 Dhrupadabai Arun Mhaske, the complainant who is also claimed to be an eye witness. P.W.No.2 Samadhan, brother of the complainant who is witness to the spot panchnama (Exh.41) P.W.No.3 Tatyarao Kakade, panch witness to the seizure of clothes of appellant no.1,2 and 5 as well as memorandum of disclosure statement of these appellants and discovery of seizure of axe (Article 11), stick (Article 10 and 12), who turned hostile. P.W.No.4 Chaturabai Maruti Mhaske is the eye witness, P.W.No.5 Arun, injured eye witness, P.W.No.6 Shantibai Vinayak who turned hostile, P.W.No.7 Dr.Vinayak Kalokhe, who had conducted autopsy on the dead body of Maruti and prepared post mortem notes (Exh.50), P.W.No.8 Phakira Vishnu 6 Ingale, who carried injured Maruti to Hospital, P.W.No.9 Diksha Ratan Mhaske, daughter in law of the deceased, P.W.No.10, Ganpat Satwaji Rahire, Investigation Officer, P.W.No.11 Raosaheb Ramrao Bhavale, who has recorded the statement of injured Arun. 6. It appears that the Lower Court has accepted this evidence of prosecution witnesses against the appellants and convicted them for the offence punishable u/s. 147, 148, 302 r/w. 149, 323 r/w. 149 of IPC, but acquitted the female accused from all the charges. In this appeal, the appellants have challenged the correctness and legality of the judgment of conviction. 7. Before considering the submissions of learned counsel for appellants and learned APP for State, it is necessary to advert evidence of material witnesses i.e. evidence of 3 eye witnesses and that of the Medical Officer which can be summarized as follows : It transpired from the evidence of of P.W.No.7 Dr.Vinayak Sanjay Kalokhe that he conducted autopsy on the dead body of Maruti on 23/03/2008 as on that date, he was attached to Government Medical College and Hospital, Aurangabad as P.G. student in Forensic Medicine and Toxicology Department. During the autopsy, he noted following internal and external injuries on the dead body of Maruti. 1. Evidence of lacerated wound over high parietal region, 1 x 0.2 cms x bone deed, horizontally placed, margins irregular, contused and blood infiltration staining seen. No evidence of oozing, evidence of 7 blood clotts at margins ; 2. Evidence of suture wound over left forehead, length 1 cms, single stitch seen in situ, horizontally placed. No evidence of oozing (Treatment part) 3. Evidence of abrasions over left side of face lateral to left eye, spread over an area about 3 x 3 cms dark black scabs seen; 4. Evidence of suture wound over left side of face lateral to above mentioned injury no.3, length 1 cms, single stitch seen in situ, no evidence of oozing vertically placed (treatment part) ; 5. Evidence of black eye in left eye ; 6. Evidence of suture wound in left axillary region, 10 cms lateral to left nipple, 2 cms in lengtyh, 2 stitches seen, vertically placed. No evidence of oozing (treatment part) 7. Evidence of contusion over lateral as well as posterior aspect of middle 1/3 of left side of chest extended over posterior as well as lateral aspect of left side of abdomen reaching upto left buttock, size : 25 x 8 cms, vertically placed, bluish black in colour, on incision underlying subcutaneous tissue shows blood infiltration ; 8. Evidence of multiple abrasion over right knee size varying from 0.5 x 0.5 cms to 2 x 2 cms dark black coloured scabs seen ; 9. Evidence of two abrasions over anterior aspect of middle 1/3 of right leg, size : 0.1 x 0.1 cms and 0.2 x 0.2 cms, dark black coloured scabs seen ; 10. On palpation, crepitus sound is heard over neck and left side of chest, on incision frothy fluid oozes out (subcutaneous emphysema) ; All the above injuries are ante-mortem in nature. 8 Internal Injuries : 1. Evidence of under scalp contusion, over left front parieto temporal region, size 20 x 15 cms, dark reddish in colour ; 2. Evidence of linear un-displaced fracture of left parietal bone extended to left temporal bone, length 13 cms, horizontally placed ; 3. Evidence of linear un-displaced fracture of lateral wall of left orbit, length 3 cms ; Note : Fracture lines of all above mentioned fractures are irregular and blood infiltration staining seen. 4. Evidence of subarachnoid haemorrhages over whole part of left cerebral hemisphere and right fronto parieto occipital lobes ; 5. Evidence of diffuse contusions over left fronto parietal lobes ; 6. Evidence of fracture of 2nd, 3rd rib of left side of chest wall and midclavicular line, fracture lines irregular and blood infiltration staining seen. He has recorded these injuries in the post mortem notes at Exh.50. According to him, external injury no.1 and 3 are corresponding to internal injuries no.1 to 3 and are on the head of the deceased, which are possible due to blade of axe (Article 11) and are sufficient to cause death in the ordinary course of nature. Remaining injuries are possible due to wooden stick like Article 10 & 12. It transpired from his cross-examination that the contusion under scalp may be possible by one or several strokes. Injuries mentioned in coloumn no.19 (A) and (B) are possible if blow is given by hard object while a person is standing or lying on the earth. We are not impressed with this cross examination. Suffice it to 9 say that according to us death of deceased Maruti is homicidal death, which can be inferred from the nature of injuries found on his person. 8. Then we will consider the evidence of P.W.No.1 Dhrupadbai, the complainant, who is daughter in law of deceased and wife of eye witness Arun. It transpired from her evidence that deceased Maruti and his brother Kundlik have 3 acres of land which was acquired for construction of water tank. Compensation of acquired land was sanctioned in the name of Kundlik in which deceased was claiming his 1/2 share. Appellant no.1 Bhimrao was not agree for the same. On the day of incident, around 9.00 p.m., appellant no.1 came to their house. He abused Maruti in presence of her mother in law Chaturabai and her husband Arun. Then assaulted Arun on his head with axe. Arun became un-conscious. Appellant no.1 then assaulted Maruti with an axe on his head, ribs and face. Walmik and Pralhad assaulted Arun with axe. Female accused assaulted Chaturabai with fist and kick blows. Arun and Maruti were taken to Government Hospital, Mantha by one Madhukar Sadawarte from where initially they were taken to General Hospital, Jalna and later on shifted to Government Medical College and Hospital Aurangabad, where Maruti expired after 4-5 days of the incident. On the next date, she lodged the report (Exh.39) in Mantha Police Station. It is brought on record in her cross examination that since long Maruti and Kundlik were residing separately. Amount of compensation for acquisition of land is yet to receive. It is also 10 brought on record that there was dispute on this count between the deceased and Kundlik since last 3-4 months. House of the complainant where the incident was occurred is situated in thickly populated area surrounded by houses and shops. It also transpired in her cross examination that initially Arun was assaulted, he became un-conscious, then Maruti was assaulted even after he collapsed on the ground. Both of them regain consciousness while they were taken to Govt. Hospital Mantha. P.W.No.4 Chaturabai accompanied injured to the hospital. At that time, police came at the spot to whom witness disclosed the incident. According to her, police outpost is situated at Talni where they were residing and incident took place. 9. P.W.No.4 Chaturabai had stated in her evidence that in the night of incident around 9.00 p.m., she alongwith Maruti (Deceased), Arun and her daughter in law Dhrupadabai, P.W.No.1 were present in the courtyard of their house. At that time, appellant no.1 came there and scolded Arun in filthy language. On questioning by Arun, as to why he was scolding him, appellant no.1 gave axe blow on his head. Arun collapsed and became un-conscious. Her husband Maruti tried to intervene and requested appellant no.1 not to assault Arun. At that time, appellant no.3 pulled Maruti, appellant no.1 assaulted him with axe blow on left side of his head and on his left eye, while remaining accused assaulted Maruti with stick, handle of axe and handle of tikas. Arun gave telephone call to Government Hospital Mantha. Maruti was shifted to Hospital and expired after 6 11 days. Omissions are proved in her cross examination about appellant no.1 scolding Arun, appellant no.3 told to pull deceased out of house and then appellant no.2,4 and 5 assaulted him with axe and handle of tikas. It is also brought on record that the place of incident is close to the public road. First appellant no.1 came at site and after assaulting Arun and Maruti, remaining appellants came at the spot. After assault, Arun and Maruti became un-conscious. Arun made phone call after one hour. 10. P.W.No.5 Arun claimed to be an injured eye witness. He had stated in his evidence that on the day of incident, around 9.00 p.m., when he alongwith P.W.No.1 and P.W.No.4, and deceased Maruti were sat in their courtyard of their house, first appellant came there and started scolding him. When he questioned appellant no.1 as to why he is scolding him, appellant no.1 gave axe blow on the left side of his head. He collapsed on the ground. Appellant no.5 Pandit assaulted him on his back with handle of tikas. Appellant no.2 assaulted him with the handle of axe. Appellant no.3 Madhav, appellant no.4 Walmik, appellant no.6 Pralhad told them to break the door and pull out Maruti. Appellant no.1 then gave axe blow on the head of Maruti, appellant no.5 gave blow of handle of axe on the chest of Maruti, appellant no.6 gave blow near the left eye of Maruti, then Maruti became unconscious due to these injures. He regain consciousness after 1/2 hour, still appellants were assaulting Maruti. He went to village, informed police on telephone, police came around 12 11.30 p.m. at Talani village. He and Maruti were taken to Government Hospital Mantha. One Madhukar Sadavarte and P.W.No.5 accompanied them to hospital. From Government Hospital Mantha, they were referred to General Hospital Jalna, from where they were again referred to Govt. Medical College and Hospital, Aurangabad. After about 6 days, Maruti expired in the hospital at Aurangabad. Omissions are proved in his cross examination about he questioned first appellant as to why he is harassing them, appellant no.2 Prabhakar, appellant no.5 Pandit assaulted Maruti with the handle of tikas and handle of axe, appellant no.4 Walmiki, appellant no.6 Pralhad told them to pull out Maruti from the house while appellant no.3 Madhav pulled Maruti from the house. According to him, the incident of scolding him by appellant no.1 took place near the house of one Rangnath and after 1/2 an hour, incident of assault took place in the courtyard of his house. He and Maruti were lying unconscious till arrival of police. 11. P.W.No.8 Phakira Vishnu has stated that on 18/03/2008 when he was proceeding towards the house of deceased, P.W.No.5 and Madhukar Sadavarte met him on the way. Then informed him that Maruti has sustained severe injuries and requested to arrange for vehicle. Within 1 hour, he arranged for vehicle in which Maruti was taken to Government Hospital, Mantha from where he was taken to General Hospital, Jalna. 13 12. In this background, we have heard learned counsel for the appellants followed by learned A.P.P. Learned A.P.P. has supported the reasoning recorded by the Lower Court while convicting the appellants with which they were charge-sheeted. 13. It is urged on behalf of the appellants that there is extreme delay in lodging FIR as the alleged incident occurred in the night of 18/03/2008, around 9.00 p.m., while the FIR was lodged on 19/03/2008, around 2.00 p.m., which is fatal to the case of the prosecution. We are not in agreement with these submissions, simply on the ground that after the incident, Maruti was taken to hospital by P.W.No.5 Arun and P.W.No.4 Chaturabai. Other than P.W.No.1, nobody was present at Talni. No doubt, there is police outpost at village Talani, while the police station is at Mantha. Exh. 39 shows that as there are small children at the residence of the injured, and there was nobody to look after them, the delay is calused in lodging the FIR. 14. The next ground urged before us by the learned counsel for appellants that no injury certificate about the injury caused to P.W.No.5 Arun and P.W.No.4 Chaturabai is produced on record, which fact require to be considered in the light of variance between the oral evidence of eye witnesses P.W.No.1 and P.W.No.4 coupled with the evidence of P.W.No.8 Phakira Ingale to whom witness Arun met within some minutes, immediately after the occurrence of the alleged incident. Evidence of Phakira Ingale is totally silent on the 14 point that he noticed any visible injures on the person of Arun nor Arun disclosed him that he had sustained injuries due to assault by the appellants. In view of this, testimony of Arun about assault by appellants became doubtful. On perusal of testimony of Arun, it do not inspire confidence. Omissions in his evidence are proved in his cross-examination. In the premise, it is rightly pointed out by the learned counsel for appellants that testimony of Arun can not be accepted as the testimony of true eye witness. 15. It is also urged on behalf of the appellants that, no independent eye witness is examined by the prosecution to prove the guilt of the appellants. It is also urged that the C.A. report of the articles forwarded for chemical examination is also not tendered in the evidence. There is variance between the oral evidence and medical evidence on record and lastly evidence of P.W.No.1,4 and 5 on the point of place where the incident had occurred, do not match with the testimony of P.W.No.5. Hence he prayed to allow the appeal and to acquit the appellants on all the counts. 16. First we will deal with the site where the incident occurred. As it is urged by the learned counsel for the appellants, relying on the testimony of P.W.No.5, the incident had occurred in the courtyard of the deceased, near the house of Rangnath. On this point, Exh.41, in the spot panchnama, the house of Rangnath is not shown near the courtyard where the incident was occurred, which fact is not put to the panch witness Samadhan while he was under cross- 15 examination. Apart from it, perusal of Exh.41, the spot panchnama clearly indicates that blood was found in the courtyard of the complainant where the incident occurred as per the evidence of eye witnesses. Hence there is no hesitation in our mind that the incident occurred in the courtyard of the complainant where the deceased, P.W.No.1, P.W.No.4, P.W.No.5 were residing. While discussing the evidence of P.W.No.7, we have concluded that the death of deceased Maruti is a homicidal death. Evidence of P.W.No. 1, P.W.No.4, P.W.No.4 is consistent on the point of assault on Maruti by the first appellant who gave axe blow on his head, on his face and on his chest, while there are omissions in their evidence about the role played by the other appellants. All these witnesses have categorically stated that the remaining appellants and acquitted accused reached at the spot after Maruti was assaulted by the first appellant Bhimrao. In the premise, it can not be held that other than appellant no.1 Bhimrao, remaining appellants and others, first were the members of an unlawful assembly with their common object to commit the murder of Maruti. In other words, evidence on record is sufficient to hold that because of the assault/axe blow by Bhimrao, death of Maruti was caused. At the same time, evidence on record is not sufficient to draw the conclusion that other appellants are responsible for the injuries sustained by Maruti. At the same time, the evidence on record is not sufficient to conclude that injuries caused to Arun are established by the evidence on record and the evidence is not sufficient to draw the conclusion that there are any injuries on the person of Arun. 16 17. In the result, we are of the considered view that the record is sufficient to establish that the first appellant Bhimrao is alone responsible to cause the death of Maruti while evidence is not sufficient to prove the guilt of other accused or to prove any offence for which they were charged and convicted. In the substance, the appeal so far as appellant no.1 is concerned is liable to be dismissed, while so far as the appeal filed by the remaining appellants is concerned, it succeed. Hence, we pass following order : O R D E R This appeal is partly allowed, and conviction and sentence of appellants no.2,3,4,5 and 6 is hereby quashed and set aside and they are acquitted of the offences with which they are charged and convicted. Fine, if paid by the appellants, be refunded to them. Bail bonds of appellant no.3 Madhav Kundlik Mhaske, appellant no.4 Walmik S/o.Rangnath Mhaske, appellant no.6 Pralhad Rangnath Mhaske stand cancelled. Since appellant no.2 and 5 are in jail, they be released forthwith, if not wanted in any other case. Appeal filed by appellant no.1 Bhimrao Mhaske, challenging his conviction and sentence is hereby dismissed. However, his conviction is altered from section 302 r/w. 149 of IPC to section 302 simplicitor maintaining the sentence of imprisonment and sentence of fine. Conviction of appellant no.1 for the offence punishable u/s. 147, 148, 149 and 323 r/w. 149 is quashed and set aside." (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/SEPT. 2010/cri.appeal 755-08