1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.185 OF 2008 1. Gajendra s/o Ganesh Dhillor, Age 36 years, Occu. Nil 2. Ravi s/o Premraj Kudiya, Age 27 years, Occu.Nil Both R/o Harimala, Darewadi, Solapur road Taluka Nagar, District Ahmednagar .. APPELLANTS VERSUS 1. The State of Maharashtra 2. Madhu s/o Mulchand Barse, Age 50 years, R/o Walmiknagar, Bhusaval, District Jalgaon .. RESPONDENTS Smt.S.S.Jadhav, Advocate for appellants Shri S.D.Kaldate, Assistant Public Prosecutor for respondent No.1 Shri S.S.Patil and Ms.Monika Purnapatre, Advocate for respondent No.2 CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 9th March 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellants (original accused 1 and 2) who stand convicted for an offence punishable under Section 302 read with 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs.10,000/- with a default stipulation of undergoing further rigorous imprisonment for one year in the 2 event of non payment of fine, by the Additional Sessions Judge, Jalgaon, by judgment dated 17.4.2008, in Sessions Case No. 112/2003, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.9 P.S.I. Pandurang Patil who was attached to the Bazarpeth Police Station, Bhusawal recorded complaint of P.W.4 Deepak Barse on 17.11.2002 at Exh.95. On the basis of the said complaint, offence vide Crime No.102/2002 came to be registered under Section 302 read with sec.34 of the Indian Penal Code. The investigation of the said crime was entrusted to P.I. Deshmukh. It appears that during the pendency of the said Sessions case, P.I. Deshmukh expired. Investigation was carried out by P.W.9 P.S.I. Patil under the instructions of P.I.Deshmukh. On 18.11.2002, he arrested the appellants i.e. original accused No.1 and 2 and seized their wearing apparel in the presence of P.W.3 Bharat vide seizure memo at Exh.91. He thereafter visited the scene of the offence and drew the scene of the offence panchnama at Exh.89 in the presence of P.W.2 Deepak Chavan. At the scene of the offence he noticed blood stains at a distance of about 23 ½ feet from the gate of the temple. The Priest of the temple had 3 admitted to have washed the blood stains which were at the gate of the temple. Accordingly, samples of blood mixed soil and ordinary soil came to be obtained. It appears that during custodial interrogation accused No.1 Gajendra expressed his willingness to point out the place where a dagger was hidden. Memorandum of accused No.1 came to be recorded in the presence of P.W.1 Suresh as Exh.87. Accused No.1 Gajendra led the panch and the Police and produced a dagger, Article 12 which came to be seized under seizure panchnama at Exh.87-A. Statements of eye witnesses came to be recorded and the seized property came to be referred to the Chemical Analyzer along with the requisition at Exh.107. The report of the Chemical Analyzer at Exh.109 shows that the clothes of original accused No.1 and the shirt of original accused No.2 appellants was found stained with human blood but the group could not be determined. The dagger which was produced by accused No.1 was also found stained with human blood but the group could not be determined. Further to the completion of investigation a charge-sheet against the appellants and other accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.29 framed charge against the accused for offence punishable under Section 143 and 302 of the Indian Penal Code. Thereafter the charge came to be altered vide Exh.66 and charge 4 for an offence punishable under Section 143, 148 and 302 read with sec.149 of the Indian Penal Code came to be framed against the accused. The accused denied their guilt and claimed to be tried. The trial Court upon appreciation of the evidence of nine witnesses examined by the prosecution convicted and sentenced the appellants i.e. original accused 1 and 2 for offence punishable under Section 302 read with sec.34 of the Indian Penal Code while acquitting the other accused of the offences with which they were charged. The State has chosen not to file any appeal challenging the acquittal of the accused who have been acquitted. 4. In order to effectively deal with the submissions advanced before us by Smt.S.S.Jadhav, learned Counsel for the appellants and Shri Kaldate, learned Assistant Public Prosecutor for the State, it would be useful to refer to the evidence of the prosecution witnesses. The mainstay of the prosecution is the evidence of P.W.4 Deepak and P.W.6 Rambhau who are eye witnesses. The trial Court has chosen not to place any reliance upon the testimony of P.W.1 Suresh in respect of discovery of the dagger on the ground that accused No.1 when he was in handcuffs when he had made the memorandum statement. The trial Court has given reasons at paragraph 53 and 54 of the judgment. P.W.4 Deepak who is cousin of deceased Bhupendra and who is also the first informant, states that on 17.11.2002 i.e. 5 the date of the incident, marriage of one Raju Chawriya was being solemnised with the son of Kudiya. The relatives and the friends of the bridegroom, who are described in the deposition of the witness as “Baratees” had come from Ahmednagar. The marriage was to be solemnised at 8.00 p.m. and the procession of the bridegroom proceeded at 6.20 p.m. P.W.4 Deepak states that he and his friends were present in the procession and while the procession was passing through Ambedkarnagar, they noticed some persons running towards the statue of Shivaji i.e. in the opposite direction. P.W.4 Deepak also ran in that direction in order to ascertain as to what the matter was. He states that some persons from the procession tried to enter the Laxminarayan temple and accordingly P.W.4 Deepak and his friends requested those persons not to enter the temple wearing their footwear. On going to the temple he noticed that accused No.1 Gajendra was dragging Bhupendra out of the temple by clutching the collar of his shirt. The rest of the accused and accused No.1 Gajendra started assaulting Bhupendra and brought him outside the temple. Accused No.1 Gajendra exhorted accused No.2 Ravi to kill Bhupendra. The accused were assaulting Bhupendra by giving him fist blows. It was noticed that Bhupendra was having a dagger in his hand and accused No. 1 Gajendra snatched the said dagger from Bhupendra and pierced the said dagger in the stomach of Bhupendra. According to P.W.4 6 Deepak the accused at that point of time were under the influence of liquor. P.W.4 Deepak states that it was the custom of their community that the brother-in-law of the bridegroom surreptitiously removes the dagger or the shoos of the bridegroom. Accordingly, Bhupendra had removed the dagger from the possession of the bridegroom and on that count the accused had assaulted him. Deepak and his friends tried to intervene and save Bhupendra but the accused were uncontrollable as they were under the influence of liquor. Bhupendra sustained injury which was a bleeding injury and Bhupendra was shifted to the hospital of Dr.Santosh Chowdhari in an auto-rickshaw and as per the direction of Dr.Chowdhari, Bhupendra was taken to the Municipal Hospital. As Bhupendra was serious, the doctor of the Municipal Hospital referred Bhupendra to the life care hospital and thereafter to the Civil Hospital at Jalgaon. He states at the civil hospital Bhupendra was declared dead. The time then was about 10.30 p.m. and thereafter P.W.4 Deepak went to the Bazarpeth Police Station, Bhusawal and lodged his report at Exh.95. 5. In cross-examination P.W.4 Deepak has admitted that deceased Bhupendra was his cousin and the marriage was to be solemnised at the house of one Raju Mewalal. He states that the Laxminarayan temple has one door for entry inside the temple 7 and adjoining to the gate of the temple there are steps for ascending to the temple. After the gate there is an open place and adjoining to the open place there are 6 to 10 steps. After ascending the stairs one can enter the temple. He states that on the Northern side of the temple there is a small meeting hall and on the Southern side of the temple there is a small garden. He states that on the day of the incident was the Deewali festival and it was the day of “Laxmipooja”. He has admitted as correct that there was a rush of devotees in the temple. He has admitted as correct that on account of the rush in the temple there was jostling amongst the devotees. He has denied the suggestion that it was dark at that time. He was confronted with portion marked “A” in his report that he had entered the temple which he denied to have stated. He has admitted that he had not climbed the steps and had gone towards the side of the garden. He states that he was in the middle of the gate of the garden and the gate of the temple. He states that he had attempted to rescue deceased Bhupendra when he was being dragged. He states that he had tried to hold accused Gajendra but could not catch him. He states that the accused had severely assaulted Bhupendra by fist blows and kick blows and even after injury was inflicted by the dagger the accused were assaulting Bhupendra by fist and kick blows. He states that when Bhupendra was carried to the hospital the clothes of P.W.4 Deepak were stained with blood. He 8 could not state the time at which the Medical Officer pronounced Bhupendra as dead. He was accordingly confronted with portion marked “B” in his statement that the Medical Officer had pronounced Bhupendra dead at 9.30 p.m. which he admitted to be correct. He states that he was at the Civil Hospital for half an hour but did not narrate the incident to the Police at the Civil Hospital. He states that he returned back to Bhusawal and immediately proceeded to the police station. Omission has been duly proved that he had not stated that accused No.1 Gajendra was dragging Bhupendra by clutching the collar of his shirt. Similarly omission has been proved that he had not stated that the accused had assaulted him by fist and kick blows outside the temple. The aforesaid omission is only in respect of the place i.e. “outside the temple”. Omission has been duly proved that he had not stated that the accused were under the influence of liquor. Similarly omission has been duly proved that he had not stated that the reason for the assault was that Bhupendra had removed the dagger from the possession of the bridegroom. Omission has been duly proved that he had not stated that he could not control the accused as they were under the influence of liquor. In cross-examination he has admitted as correct that some persons were trying to snatch the dagger from Bhupendra. He had denied the suggestion that on account of jostling Bhupendra fell on the barbed wire which had sharp pointed 9 arrows and the arrows had pierced the stomach of Bhpendra. He had admitted that one case had been registered against him and he had been acquitted. In further cross-examination he has admitted that another case was pending at Bhusawal which was fixed for judgment. 6. Smt.Jadhav, learned Counsel for the appellants has urged before us that it is extremely doubtful if P.W.4 Deepak could have witnessed the incident, particularly in the light of the fact that there was a rush of devotees and in the light of the fact that P.W. 4 Deepak had admitted that he had gone towards the garden. According to the learned Counsel for the appellants Deepak could not have witnessed the actual snatching of the dagger by accused No.1 Gajendra and the infliction of injury by accused No. 1 Gajendra. The evidence of P.W.4 Deepak in respect of snatching of the dagger by Gajendra and the infliction of injury by Gajendra is fully corroborated by the recitals in the first information report at Exh.95. P.W.4 Deepak has not been cross- examined in detail and no answers have been elicited in the cross-examination which would in any manner cast a doubt regarding the ability of P.W.4 Deepak to have witnessed the incident from the place which was stated by Deepak i.e. from the place where Deepak and his friends were standing. Deepak in no uncertain terms states that he has witnessed the incident and this 10 stand corroborated by the recitals in the first information report lodged by him. In the absence of any material this Court cannot on the basis of surmises come to the conclusion that P.W.4 Deepak could not have witnessed the incident. We have perused the evidence of P.W.4 Deepak very carefully and we do not find that there is even an iota of evidence which would indicate that P.W.4 Deepak was not an eye witness. We have, therefore, no hesitation whatsoever in accepting the testimony of P.W.4 Deepak. 7. Prosecution has examined P.W.6 Rambhau who is a Watchman. Rambhau has deposed about three to four persons chasing one person and dragging him out of the temple and assaulting that person by fist and kick blows and thereafter a person who was wearing blue Safari dress inflicting an injury on the stomach by a knife. He then states about the presence of P.W.4 Deepak and his colleagues. In cross-examination he has admitted that initially the boy was assaulted by fist and kick blows and was dragged to a distance of 15 to 20 feet from the man door. He has admitted that the distance between the door of the temple and the garage is 10 to 12 feet. He has admitted that tube lights were affixed on the main gate. Omission was attempted to be proved that he had not stated that three to four persons had dragged the boy outside the temple. The omission is 11 only in respect of the word “outside”. He has denied to have stated portion marked “A” in his statement which is in respect of the assault near the entrance gate. It is then in the cross- examination that P.W.4 Deepak and his friends were present since the beginning of the incident. The learned trial Court has observed that the fact regarding the presence of P.W.4 Deepak and his friends is mentioned in the statement and, therefore, omission was not permitted to be proved. He has admitted that he is acquainted with P.W.4 Deepak and P.W.4 Deepak visits the temple often. 8. From the evidence of P.W.4 Deepak and P.W.6 Rambhau the prosecution has established beyond reasonable doubt that the dagger which was held by deceased Bhupendra was snatched by accused No.1 Gajendra and thereafter Gajendra had inflicted the stab wound on the stomach of deceased Bhupendra. Smt.Jadhav, learned Counsel for the appellants had urged before us that there was no intention to kill deceased Bhupendra and the murder of deceased Bhupendra occurred on account of a trivial matter of Bhupendra removing the dagger from the possession of bridegroom. The evidence of P.W.8 Dr.Patil who had performed the post mortem clearly reveals that he had noticed an incised wound on the epigastric region on left side 1 ½ x ½ cm and the omentum had come out from the wound. On internal 12 examination he had noticed tear 2 ½ x ½ cm on the inferior surface of the left lobe of liver. He had opined that cause of death was shock due to intra peritoneal haemorrhage due to the tear to the liver. The post mortem report is at Exh.101. The injury which was caused by accused No.1 Gajendra was a serious injury which had penetrated the abdomen and had caused a tear to the left lobe to the liver. The injury was obviously sufficient in the ordinary course of nature to cause death. In fact, the intention to commit murder of deceased Bhupendra is writ large as accused No.1 Gajendra had exhorted accused No.2 Ravi to kill deceased Bhupendra. As accused No.2 Ravi had not done so, accused No.1 Gajendra snatched the dagger from the hands of Bhupendra and inflicted the injury. An offence punishable under Section 302 of the Indian Penal Code is, therefore, clearly made out against accused No.1 - appellant No.1 Gajendra. However, insofar as accused No.2 Ravi is concerned, we find that there is no material on record to indicate that he had shared the intention of Gajendra to commit murder of deceased Bhupendra. In fact, despite exhortations by Gajendra, accused No.2 Ravi had not inflicted any injury by dagger nor had he made any attempt of snatching the dagger from the hand of Bhupendra. In that light of the matter, therefore, according to us the conviction of accused No.2 Ravi is unsustainable and accused No.2 Ravi is entitled to be given the benefit of doubt. 13 9. Accordingly, Criminal Appeal No.185 of 2008 is partly allowed. The conviction and sentence of appellant No.2/original accused No.2 – Ravi s/o Premraj Kudiya is quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine if paid by appellant No.2 Ravi be refunded to him. His bail bonds stand cancelled. Appeal insofar as it relates to the challenge to the conviction and sentence of appellant No. 1/original accused No.1 – Gajendra s/o Ganesh Dhillor is concerned, the appeal is dismissed confirming his conviction and sentence. ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal185.08)