1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO. 445 OF 2008 1. Amar s/o Rajaram Dhone, Age : 24 years, Occu.Agril., R/o Gategaon, Tq. and Dist. Latur 2. Kumar @ Anil s/o Rajaram Dhone, Age : 28 years, Occu.Agril., R/o Gategaon, Tq. and Dist. Latur ..APPELLANTS (Orig.Accused No.2 and 3) VERSUS The State of Maharashtra ..RESPONDENT Mr V.S. Tanwade, Advocate for the appellants; Mr K.B. Chaudhari, A.P.P. for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 14th September, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellants, who stand convicted for offence punishable under section 302 read with sec. 34 of the Indian Penal Code and sentenced to 2 imprisonment for life and to each pay fine of Rs.1,000/- with a default condition of undergoing further R.I. for two months in the event of non payment of fine, by the Ad hoc Additional Sessions Judge-2, Latur, by judgment dated 26.6.2007, in Sessions Case No.93 of 2004, by this appeal question the correctness of their conviction and sentence. The appellants before us are original accused nos. 2 and 3. Accused no.1 expired during the trial and, therefore, the trial stood abated as against him. By the said judgment the Trial Court acquitted original accused no.4 Laxmibai and convicted and sentenced the appellants as aforestated. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.11 P. I. Madhav Dhere, who was attached to police station, Gategaon, received information on 10.8.2004, at about 3.25 p.m. that murder of Barikrao Dhone had been committed and his dead body was lying in the field. A note in respect of the aforesaid information was taken in the station diary and P.W.11 P.I. Dhere proceeded to the scene of the offence along with the police staff. He reached the field of deceased Barikrao Dhone and noticed the dead body of deceased Barikrao lying amongst the tomato plants. He also noticed wife of deceased P.W.8 Rukhminibai sitting near the dead body. He accordingly recorded the complaint of P.W.8 Rukhminibai at Exh.197. The said complaint of P.W.8 Rukhminibai was forwarded to the police station. On the basis of the 3 aforesaid statement of P.W.8 Rukhminibai at Exh.197, an offence vide Crime No.57 of 2004 came to be registered under sections 302, 323 read with section 34 of the Indian Penal Code. The investigation of the said crime was entrusted to P.W.11 P.I. Dhere. He accordingly drew the inquest panchnama in the presence of P.W.3 Laxman at Exh.171. P.W.1 Premnath, a Photographer was called at the scene of the offence and he accordingly took the photographs of the dead body and the scene of the offence. The negatives are at Exh.163/1 to 163/10 and the positives are at Exhs.164/1 to 164/12. The scene of the offence panchnama was prepared in the presence of the panch witnesses at Exh.19. From the scene of the offence a pair of ladies slippers, blood mixed soil and control soil samples were seized. Blood stained stones also came to be seized. The seized articles at the time of the scene of the offence panchnama are Articles no.1 to 5. On 10.8.2004 accused Laxmibai, accused Rajaram and accused Amar came to be arrested. The clothes on the person of accused Laxmibai came to be seized in the presence of panchas at Exh.178. The Dhoti and the shirt of accused Rajaram, which were found to be blood stained, came to be seized in the presence of panchas at Exh.129. The shirt and trouser of accused Amar, which were found to be blood stained came to be seized in the presence of panchas under seizure memo at Exh.180. The aforesaid clothes are Article 14 and Article 15. The arrest panchnamas of the accused are at Exhs.212, 213 and 214. The clothes on the person of deceased came to be seized under seizure memo at Exh.181 in the presence of panchas. The dead 4 body of deceased Barikrao was referred for post mortem examination and post mortem on the dead body came to be conducted by P.W.6 Dr. Sonkamble. P.W.6 Dr. Sonkamble noticed the following injuries on the person of deceased Barikrao :- 1) Sharp cutting injuries at right chest, length 9 inches width, breadth 5 inches and depth 6 inches; 2) Left side on the head sharp cutting injury 10 inches length, 2 inches width, 1.5 inches depth; 3) Sharp cutting injury posterior head upto neck, length 10 inches, width 4 inches and depth 5 inches; 4) Sharp cutting injury at neck size length 5 inches, width 2 inches and depth 3 inches; 5) Sharp cutting injury at middle part of nose, size length 4 inches, width 3 inches and depth 3 inches; 6) Sharp cutting injury at right face, size 5 x2 x 1 inches; 7) Sharp cutting injury at wrist joint right hand. Wrist joint is separated into two places, size 2 x 7 x 4 inches; 8) Sharp cutting injury at right thigh lower part, size 6 x 5 x 2 inches; 9) Sharp cutting injury at left thigh two in number, size of first injury 3 x 3 x 3 inches, second injury 3 x 3 x 4 inches; 10) Sharp cutting injury at back abdomen at right size, size 12 x 3 x 5 inches; 11) Sharp cutting injury at left back side, size 3 x 2 x 3 inches; 5 12) Sharp cutting injury at buttock left side, size 4 x 3 x 3 inches; 13) Sharp cutting injury at right knee joint injury was such that knee joint was cut and only skin attached whereas muscles, ligament, bone and joint was separate. The skin of posterior side was found attached. Size of that injury was 13 x 5 x 6 inches. On internal examination he noticed a sharp cutting wound and contusion associated with abrasion at the right temporal region, size 4 x 3 x 0.7 cms. He noticed that the brain was congested. He, therefore, opined that deceased Barikrao died as a result of multiple injuries resulting in hypovolemic shock with cardiac arrest. The post mortem report is at Exh.187. P.W.6 Dr. Sonkamble had also examined P.W.8 Rukhminibai and noticed a contusion at the right elbow joint, 6 x 5 x 3 cms. He suspected fracture and, therefore, x-ray was taken. However, the x-ray did not reveal any bony injury. He accordingly issued the certificate in respect of injuries sustained by P.W.8 Rukhminibai at Exh.185. During custodial interrogation on 14.8.2004, accused Amar expressed his willingness to point out the place where the weapon (Hattya) was concealed. Accordingly a memorandum came to be recorded in the presence of P.W.2 Sadhu at Exh.168. Accordingly the accused led the police and the panch and discovered the weapon Article 16, which came to be seized under panchnama at Exh.169. During custodial interrogation on 16.8.2004 accused Rajaram expressed his willingness to point out the place of concealment of the sickle. Accordingly, the 6 memorandum came to be recorded in the presence of panchas at Exh. 218 and accused Rajaram led the police and the panch and produced a sickle which came to be seized under seizure memo at Exh.219. Article 17 is the sickle discovered by accused Rajaram. The seized property came to be referred to the Chemical Analyser and on 17.8.2004 accused Amar expressed his willingness to produce a stick concealed by him. Accordingly memorandum at Exh.220 came to be drawn in the presence of panchas. Accused Amar led the police and the panchas and pointed out the stick Article 18, which came to be seized under panchnama at Exh.221. On 28.8.2004 accused Kumar expressed his willingness to point out the place where a knife had been hidden and accordingly a memorandum at Exh.168 came to be drawn. Accused Kumar led the police and the panch and accordingly discovered his clothes and knife, which came to be seized under seizure memo at Exh.169. The knife is Article 21 and his clothes are Articles 22 and 23. Further to the completion of investigation a charge-sheet against the appellants and the other accused came to be filed. 3. On committal of the case to Court of Sessions, the Trial Court vide Exh.9 framed charge against the appellants and other accused for offence punishable under section 302 read with sec.34, 323 read with sec.34, 504 read with sec.34, 506 read with sec.34 and 336 read with sec. 34 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined eleven 7 witnesses. The entire prosecution case revolves round the ocular testimony of P.W.8 Rukhminibai, wife of deceased Barikrao. The Trial Court relied upon her testimony and accordingly convicted and sentenced the appellants as aforestated while acquitting original accused no.4 Laxmibai. 4. In order to deal effectively with the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the evidence of P.W.8 Rukhminibai. Rukhminibai states that initially her husband was employed in the B & C Department at Latur and, therefore, their agricultural land was given on cultivation to one Tukaram. She states that the accused are residents of village Gategaon and they are agriculturists. She further states that the relations between the accused and her husband were strained about four months prior to the incident. She states that the relations were strained as the accused used to let loose their cattle in the agricultural land of deceased Barikrao. She also states that her husband had lodged several complaints at police station, Gategaon. She states that on 10.8.2004 she and her husband had come to Gategaon from Latur and had reached their agricultural field at about 2.00 to 2.30 p.m. She states that she and her husband were standing in the portion of their agricultural field where the tomato plants were planted. She further states that at about 2.45 p.m. accused Amar arrived there with a buffalo and thereupon deceased Barikrao objected as the buffalo was damaging the tomato plants. Amar picked up a stone 8 and hurled it towards her husband. Her husband deceased Barikrao evaded the stone and thereafter Amar again hurled another stone. Barikrao had sustained an injury on account of the hurling of the stone and blood began to ooze out of the injury. She further states that the other accused arrived there and original accused no.4 Laxmibai arrived there with weapons. Accused Kumar took the weapon "Hattya" from Laxmibai and assaulted deceased Barikrao. Accused Amar took a knife and also assaulted deceased Barikrao. On sustaining the injuries deceased Barikrao fell on the ground and Rukhminibai was requesting the accused not to assault her husband. Original accused no.4 Laxmibai dealt a blow of stick on her right forearm. She further states that the appellants then fled from the scene of the offence and Rukhminibai sat near the dead body of her husband. While the accused were fleeing, one Tukaram and his wife had come there and they had inquired from Rukhminibai as to what had happened. Incidentally prosecution had examined P.W.4 Tukaram but he did not support the prosecution and was declared hostile. She states that thereafter the police arrived there and obtained her thumb impression on the report at Exh.197. In cross-examination omission has been duly pointed out that she had not stated in her report that accused Amar had hurled a stone at her husband and her husband had evaded the said stone. Omission has also been pointed out that she had not disclosed in her report that Amar had again hurled another stone, which struck the head of her husband causing an injury to his head. Similarly she had not disclosed in her 9 report that one Namdeo had also arrived there. Omission has been duly proved that she had not stated that accused Laxmibai came there carrying weapons like Hattya, sickle, knife and stick. Omission has been duly proved that she had not stated in her report that accused Kumar took the weapon Hattya from Laxmibai and assaulted deceased Barikrao. Omission has been duly proved that she had not stated that accused Amar and Rajaram took knife and sickle from Laxmibai assaulted her husband. Omission has been duly proved that she had not stated that Laxmibai had assaulted her by a stick on her forearm. Omission has been proved that she had not stated in her report that the relations between deceased Barikrao andthe accused were strained since about four months prior to the incident. She has stated that she had not stated in her report that there was a scuffle between accused Rajaram and her husband and Rajaram had sustained injuries to his nose and left finger. Omission has been duly proved that she had not stated that accused Rajaram was armed with a sickle. It appears that she was confronted with portion marked "A" from her report wherein she had only stated that Rajaram was armed with a weapon without specifying what that weapon was. She was confronted with portion marked "B" from her report that accused Amar was armed with a sickle. She was confronted with portion marked "B" from her report that accused Amar was armed with a sickle. She was confronted with portion mark "C" from her report that on her husband objecting to accused Amar grazing the buffalo, accused Amar immediately took his buffalo and went to his house. She 10 has admitted that accused Rajaram had lodged a complaint against her husband when her husband had assaulted him. She has also admitted that near the scene of the offence there are several residential houses. He has denied the suggestion that a false complaint was lodged against the accused. 5. Shri Tanwade, learned Counsel for the appellants has urged before us that the conduct of this witness is extremely unnatural. This witness did not try and summon any help to continue to sit near the dead body of deceased Barikrao. It is also urged before us that in the light of the omissions which have been proved on record and which are on the vital aspects of the prosecution case, the testimony of this witness deserves to be rejected. The learned A.P.P. has urged before us that the presence of the witness at the scene of the offence is natural and though this witness has been cross-examined, nothing material has been elicited in the cross-examination which would doubt her presence at the scene of the offence. 6. It is true that perusal of testimony of P.W.8 Rukhminibai discloses several omissions and contradictions. However, the omissions and contradictions are on the peripheral aspect of the prosecution case. The omissions are in respect of several details with regard to the assault on deceased Barikrao. Contradictions and omissions which would entail the rejection of the testimony of an eye-witness should be on material 11 aspects of the prosecution case. In other words, the contradictions and omissions should be of such a magnitude as would render the testimony unacceptable. In the present case, we do not find that the omissions and contradictions would require jettisoning the testimony of P.W.8 Rukhminibai. Presence of Rukhminibai at the scene of the offence is established. According to her, she along with her husband had arrived at the village Gategaon from Latur, where her husband was employed. Presence of Rukhminibai at the scene of the offence is certainly established. Though the Trial Court has rejected a part of her evidence relating to participation of accused no.4 Laxmibai, that by itself would not indicate the falsity of the entire testimony of P.W.8 Rukhminibai. The doctrine of falsus in uno falsus in omnibus cannot be invoked for rejecting the testimony of P.W.8 Rukhminibai in its entirety. After separating the truth from the falsehood, according to us the residue testimony of Rukhminibai certainly inspires confidence for sustaining the conviction of the appellants. The first information report was lodged immediately on arrival of the police. Rukhminibai was found sitting near the dead body of her husband. There is nothing to indicate in the cross- examination that Rukhminibai was not present at the scene of the offence when her husband deceased Barikrao was assaulted. The contradictions and the omissions are not of such a magnitude as would render the testimony of P.W.8 Rukhminibai unacceptable. In that light of the matter, therefore, according to us though Rukhminibai is a solitary witness to the incident and a part of her testimony has been rejected by 12 the Trial Court, according to us is sufficient for basing the conviction of the appellants. The first information report in no uncertain terms indicates that the appellants had assaulted deceased Barikrao. The post mortem report reveals the injuries sustained by Barikrao which were numerous and on vital parts of the body. Deceased Barikrao had died on account of the injuries. The injuries were inflicted by the appellants being armed with weapons. The aforesaid injuries were voluntary injuries i.e. they were not accidental injuries. In such circumstances, therefore, according to us the prosecution has established the offence beyond reasonable doubt. 7. Learned Counsel for the appellants has relied on the judgment of Supreme Court in Pandurang and others vs. State of Hyderabad, AIR 1955 S.C. 216 and Harjit Singh and others vs. State of Punjab, AIR 2002 S.C. 3040, to urge before us that both the appellants had not shared the common intention of each other for committing murder of deceased Barikrao. Both the appellants had arrived at the scene of the offence armed with dangerous weapons and both the appellants had inflicted the injuries. Rukhmimibai has merely stated that both the appellants had assaulted deceased on several parts of his body. Deceased had sustained several injuries as a result of which the deceased had died. Nothing has been elicited in the cross-examination, which would pin point any particular injury which was a sample injury, which was inflicted by a particular accused. In such circumstances, 13 according to us both the accused are vicariously liable under section 34 of the Indian Penal Code. It is apparent that the appellants had shared the common intention of committing murder of deceased Barikrao and in pursuance thereof had inflicted several injuries on the vital parts of the body of deceased Barikrao as a result of which deceased Barikrao had succumbed to the injuries. In that light of the matter, therefore, according to us the prosecution has established the offence beyond reasonable doubt and the appellants are rightly convicted for offence punishable under section 302 of the Indian Penal Code. 8. Accordingly, Criminal Appeal No.445 of 2008 is dismissed confirming the conviction and sentence of the appellants. Sd/- Sd/- ( A.V. POTDAR, J.) ( P.V.HARDAS, J.)