1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Criminal Appeal No.660 of 2000 (1)Sopan Suresh Sonavane (2)Ram Suresh Sonavane Appellants (Original Accused) Versus The State of Maharashtra Respondent Ms.Smita Kadu for appellants. Mr.P.S. Hingorani, APP for State. CORAM: B.H.MARLAPALLE & R.Y. GANOO,JJ. November 30, 2009. ORAL JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This appeal arises from the conviction and sentence passed on 5th June 2000 in Sessions Case No.453 of 1999 by the learned Additional Sessions Judge at Pune. Both the accused who are full blood brothers came to be convicted and sentenced for the offence punishable under Section 302 read with Section 34 of IPC and sentenced to suffer life 2 imprisonment for causing the homicidal death of Dilip Palande , husband of PW 1 – Smt. Rekha Palande. 2. Shortly stated as per the prosecution, the accused and the deceased were the residents of the same locality and their houses are few meters away from each other and they were, therefore, well acquainted with each other. On 16/9/1999 between 10 to 10.30 p.m. while the accused no.1 was passing by the Navbharat Chowk Mitra Mandal Ganpati, the deceased who was dancing along with few of his friends in the penal also requested the accused no.1 to join in the dance. The accused no.1 refused the same and the deceased insisted which resulted in exchange of abuses and perhaps a beginning of a scuffle. However, they were separated by the brother of the deceased as well as his mother and they went back to their respective houses. Within 5 to 10 minutes thereafter, accused no.1 came out with an axe in his hand followed by his brother accused no.2 holding an iron bar in his hand and charged towards the house of the deceased. He started shouting and abusing the deceased few feet away from the house of the deceased. The deceased came out of his house and questioned the accused for their unruly behaviour. A scuffle 3 took place between the parties and in that accused no.1 gave one blow with the axe in his hand on the head of the deceased on account of which the deceased collapsed. At that point of time PW 1 – Rekha tried to intervene but accused no.1 lifted the axe in his hand towards Rekha and threatened her from intervening. Accused no.2 continued the assault on the deceased with the iron rod in his hand and when people gathered, they ran away. PW 7 – Rajesh Pandit and PW 9 – Pinto Gill were two friends of the deceased who were present when both the incidents had taken place and PW 1 – Rekha with the help of PW 7 and PW 9 took her husband to Budhrani hospital (a private hospital at about 2 kms. away from the spot of incident and where Rekha’s mother was a staff nurse). Dilip was subjected to medical treatment and while on the operation table he died at about 1 a.m. In the mean while around 11 p.m. Rekha went to the Parnakuti Police Chowki and her complaint at Exhibit 17 was recorded by PW 11 – Peter Lobo and FIR came to be registered initially for the offences punishable under Sections 307, 506(2), 504 read with Section 34 of IPC. However, the I.O. got a telephonic message around 4.30 a.m. On 17/9/1999 Dilip breathed his last and, therefore, the FIR was amended. The dead body of Dilip was sent to Sassoon Hospital 4 for post-mortem and PW 10 – Dr.Prashant Patil performed the autopsy and signed the PM notes at Exhibit 38. PW 11 took over the investigation, visited the spot of offence in the midnight and drew the Panchanama at Exhibit 19 for which PW 2 – William @ Balu was a witness. He came back to the pendal in the wee hours of 17/9/1999 and recorded statements of some of the witnesses. He deputed API Deore in search of the accused and they were taken in custody from the Deccan college premises at about 6 a.m. on 17/9/1999 and were taken to the police station where they were taken under arrest vide panchanama (Exhibit 21) for which PW 3 – Pushparaj Pillai was the panch witness. After lodging the complaint Rekha again came back to the police station at about 00-30 hours and handed over her blood stained blouse to the IO and the seizure panchanama was drawn at Exhibit 25 for which PW 5 – Rampal Tak was the panch witness. At the same time undergarments of the deceased were also seized under seizure panchanama (Exhibit 23) for which PW 4 – Santosh Sonawane was the panch witness. The blood stained shirt of PW 9 Pinto Gill was taken charge under panchanama at Exhibit 31 for which PW 8 – Ashok Patil was the panch witness. The dead body was handed over to the family members to perform the last rites. While under 5 arrest the accused no.1 made a statement for recovery of weapons and he was taken to the Deccan college premises on 20th September 1999 where he got down from the vehicle and from the grass and bushes he recovered one axe (article 13) and iron rod (article 14) which were both stained with blood. Seizure panchanama was drawn at Exhibit 28 for which PW 6 – Ajay Pardeshi was the panch witness. All these articles like weapons, clothes buttons etc. collected from the spot were sent for CA and CA reports were received at Exhibits 14 and 15. On completion of investigation charge-sheet was filed on 25/10/1999 and the case being triable by the Sessions Court was committed on 1/11/1999. The charge was framed on 8/2/2000. 3. The prosecution examined in all 11 witnesses and claimed that PW 1 – Rekha, PW 7 – Rajesh Pandit and PW 9 – Pinto Gill were the eye witnesses. PW 10 – Prashant Patil in his depositions before the Court stated that at about 7.15 a.m. on 17/9/1999 while he was on duty at the Sassoon Hospital he received the dead body of Dilip Shankar Palande through police constable Lad Bakkal No.2841 for post mortem. He performed the post-mortem on the same day between 8 a.m. to 9.15 a.m. 6 and on examination he noted the following external injuries: 1. Stitched wound oblique over vertex 5 cm long (4 stitches) 2. Stitched wound 8 c.m. below and parallel to injury no.1, 4 stitches, 5 cm long. 3. Contusion over right shoulder and scapular region 15x2 cm. 4. Contusion over right shoulder and scapular region 14x3 cm. 5. Contusion over right side of back horizontal 5 cm below left scapular interior angle 8x3 cm. 6. Contusion over right side of back horizontal 5 cm below interior angle of right scapula. 7. Contusion over right elbow 3 x 2 cm. 8. Abrasion 0.4 x 0.3 cm. five in number on right side of neck and two on left side of neck. 9. Abrasion reddish over left frontal region 4x3 cm. 10. Left black eye. 11.Contusion over lower lip left side 0.5 x 0.5 cm. 12.Contusion over right forearm below elbow 2z1 cm. 13.Contusion over back of right hand 1x1 cm. On internal examination the Medical Officer noticed the following internal injuries: 1. Haematoma over left frontal region reddish brown 4 x 4 7 cm. 2. Heamatoma over vertex and occipital region 10 x 6 cm. 3. Haematoma over left temporal region 3 x 2 cm. 4. Subdural and suarachoid haemorrhage present over suprior, anterio and inferior surface of cerebral hemisphere of brain. 5. Haematoma was present around trachea on both sides. 6. Tear present on anterior surface of liver 4x0.5 and 3x0.5 cm. All the injuries were ante mortem and the head injuries caused were sufficient in the ordinary course of nature to cause death of the deceased. These two head injuries were corresponding to the external injury nos.1 and 2 and according to the doctor the cause of death was head injury in association with hepatic tear and with some evidence of strangulation (manual). The doctor clarified that though there was evidence of manual strangulation, it was not the cause of death and the cause of death was only the head injuries i.e. internal injury nos.1 to 4 but associated with hepatic tear and evidence of strangulation was present. He also stated that the head injuries in question could be caused by hard and blunt object like iron bar. 8 In his cross-examination the doctor stated that the head injuries described could be possible also by a wooden handle of an axe and the injuries were caused by more than one blow. As per him considering the nature of external injuries the victim might be standing in front of or by the side of the accused. The manual strangulation referred earlier could be possible with axe and at the time of the incident both, the victim and the assailants might be facing each other. No injuries were noticed on parietal region. He did not see any indication of deceased having consumed alcohol or was in the habit of consuming liquor. He assessed that the last meal was taken by the deceased about four hours prior to his death. No wheel marks were present on the external injury nos.3 to 7 and no fracture was noticed. However, right side lower three ribs of the deceased were fractured and left lung was found pale. No ligature marks were present on the neck and fracture of ribs is not at all positive sign of strangulation. Fracture of ribs was possible if an assailant sits on the chest of the victim. The Medical Officer was holding the degree of M.D. Pathology and had conducted about 2000 post mortems. He was thus an experienced forensic doctor. There is no dispute 9 that Dilip died a homicidal death on account of the injuries sustained by him on his head on 16/9/1999 and the injuries were caused during the assault unleashed on him in front of his house around 10.30 p.m. on that day. 4. We, therefore, come to the main issue as to whether the prosecution has discharged its burden to prove beyond reasonable doubts that the accused alone had assaulted the deceased and caused the injuries as noted by PW 10 n the PM report at Exhibit 39. Mrs.Kadu, the learned counsel for the appellants submitted that PW 1 – Rekha even by her own depositions, cannot be accepted to have seen the entire incident and if she appeared to have come at the scene after Dilip had collapsed and fallen on the cemented road. PW 1 being the wife, her evidence is required to be scrutinised more closely. It was further pointed out that the evidence of PW 7 – Rajesh and PW 9 – Pinto Gill was not consistent with the prosecution case and, therefore, the prosecution could not establish beyond reasonable doubt that the accused caused the death of Dilip by assaulting him on 16/9/1999 at about 10.30 p.m. 10 It was further submitted that even as per the prosecution case the accused had not intended to cause the death of deceased and even if the prosecution story is believed, it cannot be held that the accused are guilty of murder and thus liable to be sentenced under Section 302 of IPC. As per her the prosecution case, if accepted, may fall in Part II of Section 304 of IPC in asmuchas there was no intention on the part of the accused to cause the death of the deceased but at the same time they must be held to have the knowledge while inflicting the blows on the head that he would die on account of the said assault / injuries. In support of these contentions Mrs.Kadu placed reliance on the following decisions: 1. Jagrup Singh v. State of Haryana [AIR 1981 SC 1552] 2. Jawahar Lal v. State of Punjab [AIR 1983 SC 284] 3. Mavila Thamban Nambiar v. State of Kerala [AIR 1997 SC 687] 4. Sekar alias Raja Sekharan v. State represented by Inspector of Police, Tamil Nadu [2003 Cri.L.J. 53] Mrs.Kadu also relied upon the following decisions of this Court: 1. Subrao Chinty Sathe v. State of Maharashtra [1999 (5) Bom.C.R. 816] 11 2. Farukh Shaikh Mohammed v. State of Maharashtra [2006 (1) Bom.C.R. (Cri.) 844] 3. Dharma Ravji Andher v. State of Maharashtra [2004 All MR (Cri) 2068] She urged before us that even in the evidence of the eye witnesses it has clearly come out that it was a single blow given on the head of the deceased due to which he fell down and thereafter the accused no.1 was not alleged to have given any additional blow. As per her this was an important circumstance to show that the accused had no intention to kill Dilip and it was in the heat of anger arising out of the earlier incidents that the accused no.1 came in front of the house of the deceased, started shouting and when the deceased came out of his house there was a squabble between the two and one single blow on the head of the deceased followed. 5. Before we examine the evidence of the eye witnesses, the record and the evidence of the panch witnesses read with the CA reports indicated that the blood group of the deceased was “O” and this was detected from his undergarment and other clothes, recovered from his body and sent for CA. The clothes of both the accused were also sent with blood group “O”. It is also pertinent to note that accused no.2 had not 12 suffered any bleeding injury. At the same time both the weapons were found to have blood stains of Blood Group “O”. The document at Exhibit 43 also indicated that they were picked up by API Deore from the bushes in the Deccan college compound at about 6.30 a.m. on 17/9/2009. 6. PW 1 Rekha stated that deceased Dilip was her husband and they were residing along with their children in a house located at Jai Jawan Nagar, Yerwada, Pune. She knew both the accused. She had come to know from her younger son that there was a quarrel going on with her husband and, therefore, she came out of the house. She asked her husband to come inside the house and he was wearing shoes and at that time accused no.1 – Sopan and accused no.2 – Rama came there. Accused no.1 Sopan was armed with an axe and he dealt a blow of axe on the head of her husband. Her husband fell on the ground with bleeding injuries on his head. When she tried to go near her husband, accused no.1 raised an axe towards her and prevented her from going near him and at that time accused no.2 – Rama started beating the deceased with iron rod. The accused ran away from the spot and with the help of her brother-in-law Balu, she shifted her husband to Budhrani 13 Hospital. She came back to the Parnkuti police station to lodge the complaint and police had recorded her statement at Exhibit 17. She confirmed the same as being signed by her and the contents thereof were correct. Her husband was declared dead and subsequently around 00.30 hours she went to the police station to hand over the blood stained blouse which she was wearing while carrying her husband to the hospital (Article P-5). She identified the blouse, the axe as well as the iron rod which were shown to her in the Court. As per her the axe and the iron rod were the same weapons used by the accused to cause injuries to the deceased. She also identified Articles P-9 and P-10, the shirt and pant on the person of her husband at the time of the incident. In her cross-examination she admitted that she would not be able to disclose the exact time when she reached the police station to record her complaint but after about one hour she returned to her home as her children were there. She also disclosed that her mother-in-law was not staying with her but in the same locality and when she returned home, the mother-in-law as well as other relations were in her house. On 17/9/1999 around 12.30 p.m. the dead body of her husband was brought to the house. She stated that in Navbharat Chowk which was in front of her house, Ganpati idol 14 was installed near the house of Uttekar and there were very small lanes in her locality. She did not know how many people were dancing in front of the Ganpati idol of Navbharat Mitra Mandal on 16/9/1999. She denied the suggestion that while her husband was putting on his shoes, he had disclosed to her about the quarrel that had taken place outside the house. She was not aware whether there was any enmity between her husband and the accused. She also admitted that her husband used to drink liquor and was not aware whether her husband was dancing in front of the Ganesh idol after consuming alcohol. 7. Next eye witness was Shri Rajesh Pandit (PW 7) who was an estate agent and a friend of the deceased. He has also named both the accused. As per him between 10 to 10.30 p.m. on 16/9/1999 after the Ganpati Aarti was over, he and others were dancing in front of the Ganesh idol of Navbharat Mitra Mandal and the loud speaker was on. Accused no.1 – Sopan came there and he was requested to dance but he did not oblige and told that he was going home to take his dinner. At this stage there was some exchange of words between accused no.1 and the deceased and the witnesses and others 15 intervened. The mother of the deceased also intervened and she separated them. She sent her son, the deceased, to his home and accused no.1 had gone to his home. Within ten minutes thereafter both the accused armed with an axe and iron rod returned near the Ganpati idol and started giving abuses. It appears, they challenged the deceased and, therefore, he came out of his house and asked why they were abusing. At this stage accused no.1 – Sopan gave a blow of axe on the head of the deceased while he was standing and he fell down on receiving the blow by sustaining an injury on his head which was profusely bleeding. Thereafter accused no.2 started beating the deceased with an iron rod. At that stage the wife of the deceased tried to intervene but was threatened by accused no.1 by raising an axe on her. Many people gathered around and the accused escaped from the place. In his cross- examination this witness admitted that the deceased fell on his right shoulder and had not received any injury on his head due to the iron rod and there was no bleeding injury sustained by him by the blows given by the iron rod nor were his clothes torn by the assault of iron rod. He reconfirmed that due to the iron rod the deceased had sustained non-bleeding injuries though the blows were given with full force. The place of assault was 16 about 10 feet away from the house of the deceased and the Ganesh idol was about 40 feet away from the said place. He has repeated the same sequence of events of taking the deceased to the hospital, his admission and ultimately the injuries resulting in his death past midnight. He confirmed that he was at the Budhrani hospital till 2 a.m. and police had arrived and were there for about half an hour. His statement was recorded at about 2.30 a.m. on 17/9/1999 along with the statements of Pinto Gill – PW 9 and Balu Palande, the brother of the deceased, during the very same night but under the street light and with the supervision of Lobo, IO (PW 11). He also stated that after the Aarti was over about 10 to 15 people were dancing and almost all of them were his friends and members of Navbharat Mitra Mandal. After the quarrel between accused no.1 and the deceased on his refusal to dance, he had not seen accused no.1 Sopan had any injury and the quarrel had lasted for about ten minutes. Blow of an axe given by accused no.1 was on the rear side of the head of the deceased. In his cross- examination some improvisations were brought about regarding the abuses given by accused no.1 to the deceased, as compared to his statement recorded by the police. However, in our opinion, those contradictions or improvisations 17 are not very material while considering the main offence. 8. PW 9 – Pinto Gill is the third eye witness and known to both the parties. He was also the person who had accompanied PW 1 and PW 7 to take the deceased to Budhrani hospital after the incident. He has repeated the same sequence of events as came from the evidence of PW 7. He repeated that accused no.1 dealt an axe blow on the head of Dilip and accused no.2 dealt a blow with the iron rod on the chest of Dilip. Articles 13 and 14 i.e. axe and iron rod were identified before the Court by PW 7 as well as PW 9. He also confirmed that he had produced his shirt stained with blood to the police on 19/9/1999 and the blood stains were on account of the injuries sustained by the deceased who was carried to the hospital in a rickshaw. He also showed his ignorance to any enmity between the deceased and accused no.1. The trousers did not have any stains of blood and next day morning he visited Budharani hospital to receive the dead body of the deceased. 9. All the three eye witnesses have thus attributed one single axe blow by accused no.1 It has also come in the 18 evidence of these eye witnesses that when the deceased fell down after receiving an axe blow on his head, it was accused no.2 who continued the assault and as per the opinion of the Medical Officer the cause of breaking of ribs could be on account of blows of iron rod including hepatic tear. But the medical evidence more particularly on the external injuries, indicated two parallel injuries on the head and there did not appear to be any scope of sustaining the second head injury on account of fall on the road (cemented) on the head of the deceased as he had fallen on his side. The evidence of these three eye witnesses read with the evidence of the Medical Officer clearly proved the prosecution that the deceased died on account of the injuries sustained by him during the assault inflicted by the accused. Therefore, the findings recorded by the trial Court that the deceased died a homicidal death at the hands of the accused are required to be upheld. 10. It was submitted by Mrs.Kadu, the learned counsel for the appellants that there was no common intention at any time of the accused to commit the murder of Dilip Palande and at the most while causing the injuries on the head of the deceased as well as to his ribs, the knowledge could be attributed to the 19 accused that the injuries so caused would result in his death. She, therefore, submitted that the offence under Section 302 read with Section 34 of IPC has not been proved and at the most it could be the case of an offence punishable under Section 304 Part II of IPC. In addition to the decisions referred to hereinabove Mrs.Kadu has also relied upon the following two decisions: 1. Babu Lal & ors. Vs. State of Madhya Pradesh [AIR 1993 SC 1941] 2. Joseph v. State of Kerala [AIR 1994 SC 34] She submitted that the