1 mss APEAL+60 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 60 OF 2006 1. ANANTA VASANT WAGHMARE ) 2.SOU. SHAKUNTALA ANANTA ) WAGHMARE, ) Both are at present in Yerwada ) Central Prison, Pune, ) .. APPELLANTS Vs. THE STATE OF MAHARASHTRA ) .. RESPONDENT Mr. D. G. Khamkar for the appellants Ms. P. H. Kantharia, APP for State. CORAM: MOHIT S. SHAH, C.J. & SMT. RANJANA DESAI,J. DATE ON WHICH THE JUDGMENT IS RESERVED : 15TH APRIL, 2011 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 20TH APRIL, 2011 JUDGMENT: (Per Smt. Ranjana Desai, J.). The appellants are original accused 1 and 2 respectively in Sessions Case No. 295 of 2004. They were charged for the offence punishable under 2 mss APEAL+60 Section 302 read with Section 34 of the Indian Penal Code (“IPC”) on the allegation that they had committed murder of deceased Babu Vitthal Waghmare (referred to as “the deceased or Babu”) on 30/4/2004 at about 9-30 p.m. at village Malwali. By the impugned judgment and order dated 29/4/2005 the appellants are convicted for the offence punishable under Section 302 read with Section 34 of the IPC and each of them is sentenced to undergo life imprisonment and to pay a fine of Rs.100/-, in default to suffer RI for one month. Appellant 1 is husband of appellant 2. The appellants are for brevity’s sake referred to as A1 and A2 respectively. 2. It is necessary to give the gist of the case. The deceased was the resident of village Malwali. A1 and A2 are also residents of the same village. A1, A2 and the deceased are from labour class. The case of the prosecution is that prior to the date of the incident in question, while A1 and the deceased were working together the deceased had slapped A1 because A1 had a suspicion that there was illicit relationship between Ananta Krishna Waghmare, brother of the deceased and A2. According to the prosecution this created enmity between the deceased and A1. The incident in question took place on 30/4/2004 at about 9 to 9.30 p.m., near the house of the accused at village Malwali. There was a quarrel between A1 and the deceased. The accused assaulted the deceased with sickle, stone and stick. 3 mss APEAL+60 The deceased was seriously injured and he fell down. PW 2 Gopinath Rambhau Waghmare on witnessing the incident ran towards the house of the deceased to inform his wife and daughter. He disclosed the incident to them. They went to the scene of offence. They saw both the accused beating the deceased with stick and sickle. The accused on seeing them went aside. The deceased was lying motionless in injured condition. He was dead. The wife of the deceased i.e. PW 1 Yamunabai asked her daughter PW 3 Laxmibai to wait near the dead body. She went to Lonavala Rural Police Station where she lodged the First Information Report (FIR Exh. 17). The offence was registered. PW 6 PSI Dhanyakumar Chandar Godse took over the investigation of the offence. After completion of the investigation the accused came to be charged as aforesaid. 3. In support of its case the prosecution examined six witnesses. They are PW 1 Yamunabai, the wife of the deceased, PW 2 Gopinath Rambhau Waghmare, PW 3 Laxmibai, the daughter of the deceased, PW 4 Dr. Kashinath Ramchandra Parbhane, PW 5 Shivaji Garud, the pancha and PW 6 PSI Dhanyakumar Godse, who conducted the investigation. The accused denied the prosecution case in their examination under Section 313 of the Code of Criminal Procedure and contended that they were falsely implicated in the case. After perusing the evidence on record learned Sessions Judge 4 mss APEAL+60 convicted the accused as aforesaid and hence this appeal. 4. We have heard at some length Mr. Khamkar, learned counsel appearing for the appellants-accused. He submitted that there is no cogent evidence on record to support the order of conviction and sentence. Counsel submitted that oral evidence is not consistent with medical evidence. He submitted that PW 2 Gopinath Waghmare has in his examination-in-chief merely stated that a quarrel was going on between the deceased and the accused. After witnessing the quarrel he went to the house of the deceased. The wife and daughter of the deceased came to the scene of offence with him. According to this witness he saw the deceased lying on the ground. Though he has stated that the accused had assaulted the deceased with stone, stick and sickle, he does not categorically state that he had witnessed the incident or that after witnessing the actual incident he had gone to call wife and daughter of the deceased. It is only in the cross-examination that he has stated that at the time of incident A1 was holding a sickle and beating the deceased and A2 was beating the deceased with stick and stone. This witness, therefore, cannot be called an eye-witness. Counsel submitted that even PW 1 Yamunabai, the wife of the deceased and PW 3 Laxmibai, the daughter of the deceased cannot be called eye-witnesses. They had arrived at the scene of offence with PW 2 Gopinath after the alleged assault was 5 mss APEAL+60 concluded. 5. Counsel submitted that, besides all these witnesses have given an exaggerated version. They have stated that the accused used sickle, stick and stone. However, the medical evidence indicates that the deceased had suffered cut wounds. Thus the injuries suffered by the deceased are not consistent with use of stick and stone. Counsel submitted that mere finding of blood on the clothes of the deceased, the blood group of which matches with the blood group of the deceased will not be sufficient to hold them guilty of offence of murder. Besides the discovery of sickle does not inspire confidence. Counsel submitted that in the circumstances, the impugned judgment and order be set aside and the accused be ordered to be released forthwith. Counsel submitted that in any case, even if this court comes to a conclusion that the accused are involved in this case, they cannot be convicted under Section 302 of the IPC. They could at the most be sentenced under Section 304 Part II of the IPC because they did not have the intention to commit the murder. Counsel submitted PW 1 Yamunabai has stated that about one hour is required for going to the hut of the accused. It is the deceased who had gone to the house of the accused. Therefore, it cannot be said that the accused had planned the murder by premeditation. Counsel submitted that, therefore, this court may in any case bring down the 6 mss APEAL+60 conviction of the accused to Section 304 Part II of the IPC and reduce their sentence. 6. Learned APP Ms. Khantharia on the other hand submitted that the prosecution has led cogent and reliable evidence. The prosecution witnesses are rustic witnesses and, therefore, there are bound to be minor variations and exaggerations in their evidence. The prosecution has established that the relations between the accused and the deceased were strained. There is a discovery of sickle at the instance of A1. Blood found on the clothes of the accused matches with the blood found on the clothes of the deceased. In the circumstances the inevitable conclusion which will have to be drawn is that the accused are guilty of murder. Learned APP submitted that this is not a case where this court should set aside the impugned judgment and order and release the accused. 7. PW 4 Dr. Parbhane has deposed about the postmortem done on the deceased on 1/5/2004 at Primary Health Centre at Khandala, where he was attached as Medical Officer. He found the following external injuries on the dead body; 1. On the scull region at left ear above 5 inch x 1/2 inch deep cut injury in straight line. 7 mss APEAL+60 2. left ear cut in middle area completely. 3. on left ear behind 3 inches x ½ inch x 1 ½ inch deep cut injury. 4. cut injury on scull region middle area 2 inches x 1 x 2 ½ inches deep. 5. cut injury on right eyebrow 1 inch x 1 in horizontal line. 6. cut injury on face at upper lip at left side 1 inch x 1 inch deep. 8. Dr. Parbhane also found laceration on brain. There was scullvalt fracture. Dr. Parbhane has stated that the cause of death was “cordio respiratory failure due to shock and hemorrhage due to sharp, hard, blunt object injuries on scull region on face with laceration of brain”. Dr. Parbhane produced the postmortem notes which are at Exh.-22. Thus there can be no doubt that death of Babu was homicidal. 9. PW 1 Yamunabai, the wife of the deceased has stated that PW 2 Gopinath Waghmare’s hut is by the side of her hut. According to her the hut of the accused is at some distance from her hut and the hut of her brother-in- law Ananta Krishna Waghmare is at the back of her hut. According to her A1 was suspecting that Ananta Krishna Waghmare was having extra marital relations with A2. Therefore, about 15 days prior to the incident, the deceased had slapped A1 because according to him A1 was unnecessarily 8 mss APEAL+60 making these allegations. On the day of the incident she and her husband and her brother-in-law Ananta Krishna Waghmare did their manual work at the field of Shri Patil of Patan and returned to their hut at 7 p.m. The deceased told her to cook food. He left the house telling her that he would return for meals. At about 9 p.m., PW 2 Gopinath came there and told her that there was a quarrel between the deceased and A1. He asked her to go there. She, therefore, went to the scene of offence alongwith her daughter PW 3 Laxmi. Both of them saw the accused assaulting the deceased with sickle and stone. The deceased had sustained injuries near his left ear. After assaulting the deceased, the accused went near their hut and stood there. She found that her husband had succumbed to the injuries. She asked PW 3 Laxmi to wait there. She went to Lonavala Rural Police Station on foot and lodged the FIR. She has been cross-examined at some length. In the cross- examination she has stated that when she reached the spot, she found her husband lying in injured condition. Afterwards she went to the hut of the accused and found that both the accused were inside their hut. Thus it appears that this witness reached the spot after the incident had taken place. 9. PW 2 Gopinath Waghmare has deposed about the strained relationship between the accused and the deceased. He has supported PW 1 that there was suspicion in the mind of the A1 that there was illicit 9 mss APEAL+60 relationship between A2 and Ananta Krishna Waghmare, the brother of the deceased. He has also stated that few days before the incident the deceased had slapped A1 because A1 suspected that there was illicit relation between A2 and Ananta Krishna Waghmare. Because of that A1 bore a grudge against the deceased. This witness has further stated that on 30/4/2004 at about 9 to 9.30 p.m. he was returning to his house from Malwali Railway Station. At that time a quarrel and fight was going on between the deceased and both the accused. According to him he tried to pacify both the sides but they did not listen to him. He then ran to the house of the deceased where PW 1 and PW 3 were present. He informed them about the incident. PW 1 and PW 3 went to the scene of offence. After seeing PW 1 and PW 3 the accused went aside. The deceased was lying there. According to this witness the accused had assaulted the deceased with stone, stick and sickle. He succumbed to the injuries. He waited till the police arrived there. He identified the accused as the same persons in the court. He also identified the weapons of assault. In the cross-examination he has stated that A1 was holding a sickle in his right hand and was beating the deceased with it. A2 was beating the deceased with a stick, stone and sword. He has stated that at that time there was sufficient moonlight. Thus in the cross-examination he has categorically stated that A1 had a sickle in his hand. 10 mss APEAL+60 10. PW 3 Laxmibai, daughter of the deceased has also confirmed that A1 was suspecting that her uncle had illicit relations with A2. According to her the deceased had gone to him and asked him why he was suspicious about his brother. At that time the deceased had slapped A1. About the incident in question she has stated that on the date of the incident PW 2 Gopinath came to their house when they were waiting for the arrival of the deceased to have dinner with them. Gopinath told them that the accused were beating her father. She and her mother went to the scene of offence. According to her there was moonlight and she saw both the accused beating her father with sickle, stick and stone. A2 told her mother that the deceased was harassing her husband and hence they were beating him. According to her, her father succumbed to the injuries. Thereafter her mother went to the police station and brought the police. She identified the weapons of assault in the court. She identified the accused in the court. In the cross-examination she has denied that due to darkness she could not witness the incident. 11. PW 5 Shivaji Subhanrao Garud is pancha to the arrest panchnama, the seizure of the clothes panchnama and the panchnama under which at the instance of A1, sickle was recovered. He has stated that on 1/5/04 he was called by the police to act as a pancha. He has identified his signature on arrest panchnama Exh.-27 under which both the accused were arrested. 11 mss APEAL+60 According to him on 2/5/04 he was again called for the purpose of seizure panchnama. He has stated that pant and shirt of A1 and sari and blouse of A2 stained with blood were seized by the police under panchnama. He has identified his signature on panchnama Exh.-28. He has also identified the clothes of the accused when shown to him in the court. According to him A1 told the police that he would point out the place where sickle was kept by him. Accordingly memorandum of statement of A1 was prepared which is at Exh.-29. He has further stated that he along with the other pancha, a police officer and two police constables and A1 went in a jeep to the spot, pointed out by A1. A1 stopped the jeep on the road near village Patan. He took them to the thrashing ground. There was fencing of Nivdung plants near the thrashing ground. A1 took out sickle from the bush of Nivdung plants and produced it before the PSI in his presence. It was a long sickle having curve and one sharp edge. It was seized under panchnama Exh.-30. He has been cross-examined, however, his cross-examination has not helped the accused. 12. PW 6, PSI Dhanyakumar Chander Godse was attached to Lonavala Rural Police Station at the relevant time. He has given the details of investigation. He has stated that muddemal articles were forwarded to the Chemical Analyzer, Pune for examination under forwarding letter. He has 12 mss APEAL+60 produced copy of the forwarding letter which is at Exh.-32. He has produced C.A. reports Exh.-33 and Exh.-34. He has stood firm in the cross- examination. 13. In our opinion, the prosecution witnesses PW 2 Gopinath, PW 1 Yamunabai and PW 3 Laxmibai have established that relations between the accused and the deceased were strained. A1 was suspecting that the brother of the deceased was having illicit relations with A2. The deceased had, therefore, slapped A1 because he felt that A1 was falsely accusing his brother. The prosecution has successfully established that this strained relationship led to the murder. 14. The incident in question took place late in the evening. However, all the witnesses have stated that there was moonlight. Besides, the accused, the deceased and the witnesses were known to each other. It is, therefore, not possible to say that there was any difficulty in identifying the accused. The evidence of PW-1 Yamunabai, PW-2 Gopinath and PW-3 Laxmibai, however, does not indicate that they had seen the accused assaulting the deceased. PW-2 Gopinath had undoubtedly seen the quarrel which took place between the deceased and the accused on 30/4/2004 at about 9.00 p.m. to 9.30 p.m. He had, in fact, tried to pacify both sides, but they did not 13 mss APEAL+60 listen to him. He then rushed to the house of the deceased and informed the wife of the deceased about the incident. PW-1 Yamunabai and PW-3 Laxmibai i.e. the wife and the daughter of the deceased respectively went with him to the scene of the offence. This witness has stated that when they went there, they saw the deceased lying on the ground. According to PW 1 Yamunabai, it takes an hour to reach the house of the accused from her house. Thus, the incident of assault was complete when they reached the spot of incident. It is, therefore, not possible to hold that this witness has seen the actual assault. According to him, seeing PW-1 Yamunabai and PW-3 Laxmibai, the accused went aside. It is only in the cross-examination that he has said that A1 had a sickle in his hand and he was beating the deceased and A2 was beating the deceased with a stick. He has also stated that A2 was beating the deceased with a sword. According to him, A2 also used a stone to attack the deceased. It appears that he has exaggerated the prosecution case. No blood stained sword or stone is discovered or seized. 15. PW-1 Yamunabai and PW-3 Laxmibai also cannot be described as eye-witnesses. They went to the scene of offence along with PW-2 Gopinath. The incident was over by the time they arrived at the scene of offence. Though in the examination-in-chief, PW-1 Yamunabai has stated that she saw both the accused assaulting her husband, in the cross- 14 mss APEAL+60 examination, she has stated that when she reached the spot, her husband was lying in an injured condition. Thereafter, she went to the hut of the accused and found that both the accused inside their hut. Therefore, claim of PW 1 and PW 2 that they saw the incident is untrue. Since PW-3 Laxmibai was with PW-1 Yamunabai and PW-2 Gopinath, she also could not have seen the actual assault. Though it is not possible to hold that PW-1 Yamunabai, PW-2 Gopinath and PW-3 Laxmibai are the eye-witnesses, their evidence cannot be discarded because of exaggeration. They are rustic witnesses who are prone to exaggeration. Their evidence proves the presence of the accused at the scene of offence immediately after the incident. PW 2 Gopinath had witnessed the quarrel between the accused and the deceased which took place prior to the incident. There is corroboration available to the evidence of these witnesses to which we shall now turn. 16. We have already noted that at the instance of A1, blood stained sickle was recovered. PW-5 Shivaji, the pancha has deposed about the memorandum of panchnama under which the sickle was recovered at the instance of A1. PW-6 Godse has also supported PW-5 Shivaji. The injuries stated in the postmortem notes are also consistent with the use of sickle. The discovery of sickle is thus a pointer to the involvement of A1. 15 mss APEAL+60 17. We have also noted that the clothes of the accused were seized under panchnama. They were stained with blood. Though blood group of the deceased could not be determined, the report of the Chemical Analyzer (Ex-34) says that human blood of 'A' group was found on the clothes of the deceased. Thus, it can be safely concluded that the blood group of the deceased was 'A'. According to the Chemical Analyzer's report, the blood found on the shirt and pant of A1 and blouse of A2 is of 'A' group. The blood found on the sickle is also of 'A' group. Blood group of A2 is 'B'. Blood group of A1 could not be determined. But, it is not the prosecution case that the accused had sustained any bleeding injuries and therefore, there is no question of their blood spilling over their clothes or over the sickle. Finding of blood of blood group of the deceased on the clothes of the accused and on the sickle would be an incriminating circumstance against the accused. 18. The question is what offence is made out by the above established circumstances. PW 1 Yamunabai has stated that it takes one hour to reach the house of the accused from her house. That means her husband i.e. the deceased had walked for about an hour to go to the house of the accused. The incident appears to have taken place after a quarrel between the accused and the deceased. Since it is the deceased who had gone to the house of the 16 mss APEAL+60 accused there is no question of the accused planning the murder. There does not appear to be any premeditation. The murder appears to have been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. Undoubtedly the deceased did not carry any weapon with him. But there is no evidence to establish that the accused had planned the murder and called him. Therefore, in our opinion, the offence would fall within Exception 4 to Section 300 of the IPC. It is culpable homicide not amounting to murder. So far as A1 is concerned, since he was holding a grudge against the deceased, since a bloodstained sickle was recovered at his instance and since the blood group of the bloodstains on the sickle and blood group of the bloodstains on his clothes correspond to the blood group of the deceased intention can be attributed to him. He will have to be convicted and sentenced under Section 304 Part I of the IPC for 10 years RI. 19. So far as A2 is concerned she is stated to have used a stick, stone and sword. We have already stated that the prosecution witnesses have exaggerated their case against A2. No bloodstained sword or stone is recovered and the medical evidence is not consistent with the use of stone. However, the blouse of A2 was stained with blood group of which corresponds to that of the deceased. Her presence at the scene of offence at the time of incident is proved. But it is necessary to ascertain whether she 17 mss APEAL+60 had intention to commit murder. It is A1, who was suspecting that the brother of the deceased was having illicit relations with A2. Therefore, A1 was holding a grudge against the deceased who had slapped him prior to the incident, but A2 who is stated to be a part of the illicit relationship, in the circumstances, cannot be said to be having intention to assault and kill the deceased. It is possible that being wife of A1, she was dragged in the incident by A1. In the circumstances, in our opinion, her conviction under Section 302 of the IPC will have to be set aside and she will have to be convicted and sentenced under Section 304 Part II of the IPC. A2 has already undergone imprisonment of about 5 years and eleven months. We are, therefore, of the opinion, that the sentence already undergone by A2 must be treated as the sentence for the said