Apeal1187­04judgment.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1187 OF 2004 1. Shivaji Madhav Patil 2. Samadhan @ Bandya Shivaji Patil .. Appellants Both residents of Pokharni (Orig. Accused 1 & 2) Taluka Walwa, Dist. Sangli (At present in Jail at Islampur) Versus The State of Maharashtra .. Respondent Mr. Manoj Kadam i/by Mr. Pratap Patil for the Appellant D. G. Khamkar for the appellants Mr. K.V. Saste, APP for the State CORAM : P.V. HARDAS & N. D. DESHPANDE, JJ. DATE : 16th March, 2011. ORAL JUDGEMENT (Per P.V.Hardas J): 1. The appellants, who stand convicted for the offences punishable under section 302 read with 34, and under section 307 read with 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.10000/­, in default of which to undergo rigorous imprisonment for one year and rigorous imprisonment for five years and to pay fine of Rs.5000/­, in default of 1 Apeal1187­04judgment.sxw which to undergo rigorous imprisonment for one year respectively, with the direction that the substantive sentences shall run concurrently, by the 1st Ad­hoc Additional Sessions Judge, Islampur by Judgment dated 29.9.2004 in Sessions Case Nos. 173 of 1999, 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: i. P.W.11 Rajendra Ganpat Patil, who was then attached to Ashta Police Station as Police Sub Inspector, had recorded the complaint of PW­8 Subhash Maruti Patil at Exh.35 on 6.4.1999. On the basis of said complaint, an offence vide Crime No. 85 of 1999, punishable under Sections 307, 323 and 504 read with 34 of the Indian Penal Code came to be registered. Investigation of the said crime was taken over by PW­11 PSI Rajendra Patil. One Sushila had succumbed to her injuries and accordingly an inquest panchanama came to be drawn in the presence of witnesses. ii. Dead body of the deceased Sushila was referred for postmortem examination. Postmortem on the dead body of deceased Sushila was performed by PW­9 Dr. Sanjay Sudhir Bhave. PW­9 Dr. Bhave noticed the following external 2 Apeal1187­04judgment.sxw injuries on the dead body of deceased Sushila. (1) C.L.W. Over left zygomatic region 4 x 1 cm. Bone deep directed anteriomedially and slightly upwards with palpable fracture with clotted blood present. (2) C.L.W. Over just below chin 3.5 x 0.5 cm. Bone deep clotted blood present. (3) C.L.W. Over forearm left middle 1/3 rd under aspect 2.5 x 0.5 cm. Muscle deep, clotted blood present. (4) Abrasion over left forearm middle 1/3 rd Ulnar aspect adjoining injury (3), 5x 1/4 cm. redness present. Subcutaneous petechiae present. Dr. Bhave opined that cause of the injuries was hard and blunt object and the age of the injuries was within 12 hours. There was palpable fracture zygomatic bones and let zygomatic process. All those injuries were ante­mortem injuries. iii. On internal examination, PW­9 Dr. Bhave noticed that : (1) Haemotoma over left and right temporal region and left frontal region. (2) Fracture left zygomatic process and zygomative bone present. (3) Fracture left anterior ramical fossa with haemotoma present. (4) There was subdural haemotoma over whole brain. According to him, the cause of death was shock due to sub­ 3 Apeal1187­04judgment.sxw dural haematoma with fracture of skull. He further opined that injury no. was fatal and sufficient in ordinary course of nature to cause death. Postmortem report is at Exh.39. iv. On 06.44.1999, PW­9 Dr. Bhave had examined PW­8 Subhash. Upon examination, he noticed the following injuries. (1) C.L.W. over parietal prominence scalf deep bleeding present. (2) C.L.W. over left occipital region 2 c.m. x ½ c.m. scalf deep bleeding present. (3) Tenderness over left shoulder and right supra scapular region. (4) Tenderness over left knee. X­rays skull show the evidence of fracture of skull in right parietal region. Injury Certificate of PW­8 Subhash is at Exh.40. X­ray report was drawn by Dr. Choudhari. PW­9 Dr. Bhave has further stated that injury sustained by deceased Sushila namely injury No.1 was possible by the blow given by iron road. In respect of injury sustained by PW­8, he has stated that the injuries were possible by articles­ weapons before the Court. v. PW­11 PSI Rajendera Patil thereafter visited the scene of offence and drew scene of offence panchanama. From the scene of offence a pair of sleeper, broken bangles, blood mixed mud, blood stains on dried leaves and one frontal part 4 Apeal1187­04judgment.sxw of pick­axe came to be seized. The scene of offence panchanama is at Exh.12. House search of the accused was taken on the same day in the presence of panchas and clothes of the accused were found in bucket which came to be seized. Since the clothes were blood stained, the blood mixed water came to be seized by drawing the sample in a bottle. One trouser came to be seized which was also found to be stained with blood. Clothes of PW­8 Subhash came to be produced in the police station by one Jalinder Rakte which came to be seized under panchanama. vi. PW­11 Rajendra recorded statement of 11 witnesses including supplementary statement of the complainant. Accused No.1 Shivaji came to be arrested on 9.4.1999 under arrest panchanama at Exh.15. During custodial interrogation, accused No.1 Shivaji expressed his willingness to point out the place where the handle of the pick­axe was concealed. A memorandum came to be recorded in the presence of witnesses at Exh. 25. Accordingly the accused led the police and Panchas to Pokharni village and thereafter produced the handle of the pick­axe which had been concealed, which came to be seized vide Panchanama at Exh.26. Accused No.2 Samadhan came to be arrested on 10.4.1999 and the clothes on his person came to be seized under Panchanama Exh.15. 5 Apeal1187­04judgment.sxw During custodial interrogation, accused no.2 Samadhan has expressed his willingness to point out the place where the Iron bar was hidden. Accordingly a memorandum came to be drawn in the presence of Panchas and accused No.1 then led the police and panchas to village Pokharni and produced the iron bar which came to be seized under Panchanama. Iron bar is at Article 21. Seized property was referred to Chemical Analyzer for analysis along with Memorandum at Exh.15. Further to the completion of investigation, the charge sheet against the accused came to be submitted. vii. On committal of the case to the Court of Sessions, trial court vide Exh.2 framed charge against the accused for the offence punishable under section 302 read with 34, on the allegation of for committing murder of Sushila and under section 307 read with 34 of the Indian Penal Code on the allegations that they had attempted to commit murder of PW­8 Subhash. The accused were also charged for an offence punishable under section 324 read with section 34 of the Indian penal Code for having caused voluntary hurt by dangerous weapons to PW­4 Kiran Subhash Patil. The appellants/accused denied their guilt and claimed to be tried. The prosecution, in support of its case examined 11 witnesses. The entire prosecution case rests on the testimony of the complainant i.e. the injured 6 Apeal1187­04judgment.sxw witness PW­8 Subhash Patil and PW­4­ Kiran Patil. The trial Court accepted the evidence of these eye witnesses as well as accepted the evidence of discovery of weapon and convicted and sentenced the the appellants as aforesaid. The appellants, therefore, being aggrieved by their conviction and sentence, have filed the present appeal questioning the same. 3. In order to appreciate the submissions advanced before us by the learned counsel for the appellants and the learned Assistant Public Prosecutor for the State, it would be useful to refer to the evidence of the prosecution witnesses. As stated by us above, PW­8 Subhash who is complainant, has stated in his evidence that he was residing at Pokharni along with his wife deceased Sushila, son Kiran and daughter Sangita. He has further stated that accused are his cousins and residing in the nearby land. PW­8 Subhsh stated that they have common source of water for irrigating the agricultural land. In respect of the incident PW­8 Subhash stated that he, along with his wife Sushila, had gone to the land at about 6 p.m. on 6.4.1999 for bringing fodder. Accused 1 and 2 were watering their crop in their land. PW­8 Subash stated that when he went towards them, he saw that the accused had damaged his water course. He accordingly questioned as to why accused had damaged the water course. Accused no.1 replied that he had damaged the water course in order to take water to his own 7 Apeal1187­04judgment.sxw land. PW­8 Subhash stated that there was quarrel between him and accused no.1 and Sushila intervened in the quarrel. She questioned accused no.1 as to why he was so aggressive. Accused No.2 suddenly rushed towards Sushila. He was armed with iron rod. He dealt blow of iron bar on the neck of Sushila. Accused No.1 was armed with pick­axe and accordingly dealt blow of pick­axe on the left side of the head of Sushila. Sushila fell on the ground and, therefore, PW­8 Subhash rushed towards her in order to lift her. According him, accused no.2 gave blow of iron rod on the head of PW­8 Subhash. Accused No.2 also assaulted him with the iron rod on his hand and leg. Meanwhile PW­4 Kiran son of PW­8 also arrived there. Sushila and PW­8 Subhash were taken to the government dispensary at Bavachi by bullock­cart and from there, they were taken to Government hospital at Sangli by Jeep. He was admitted in the hospital. There, first information report came to be recorded which is at Exh.35. He has further stated in his examination in chief that accused no.2 had also assaulted his son PW­4 Kiran by iron bar on the lower part of his left leg. 4. This witness­ PW­8 Subhash has been cross examined at length. In cross examination, he has admitted that well is situated at the strip of the land belonging to accused no.1 on the western side. He has further admitted that it is a common well. He has also 8 Apeal1187­04judgment.sxw admitted in the cross examination that he and the accused were on cross terms since last 10 years. He has also admitted that his wife was standing at a distance of one or two feet from him. He has denied the suggestion that he was armed with pick­axe and had tried to assault accused no.1 and inadvertently his wife sustained blow of pick­axe which was in the hand of PW­8 Subhash. He has admitted as true that his wife was rendered unconscious when he had gone to lift her. He has stated that he does not know if handle of the pick­axe was broken and whether blade/pick­axe feel at the scene of the incident. He has also admitted that initially they had gone to dispensary of one Dr. Gawade in a bullock cart and thereafter had gone to primary health Centre at Bavachi. He has admitted that Dr. Gawade did not examine him but he could not state if Dr. Gawade has examined his wife Sushila. 5. From the cross examination of this witness PW­8, we find that nothing has been elicited in his cross examination which would in any manner cast doubt on what this witness has stated. There is no cloud of suspicion hovering over the evidence of PW­8 Subhash. Evidence of PW­8 Subhash is corroborated by the injuries sustained by him. He is an injured witness and in front of his eyes accused had assaulted and had killed his wife Sushila. We, therefore, find that after cross examination PW­8 Subhash has emerged as a reliable witness on whose testimony the court can 9 Apeal1187­04judgment.sxw place implicit reliance. Evidence of PW­8 is corroborated by the evidence of PW­4 Kiran, though no corroboration, according to us, is necessary. 6. PW­4 Kiran is also an injured witness. PW­4 Kiran has claimed that at the time of incident he was studying in Shivaji High School, Bawachi in 9 th standard. His school timings were from 11 a.m. to 5 p.m. He has stated that when he had returned from his school his mother and his sister were at home while his father was not present. He states that thereafter at about 6.00 in the evening his sister informed him that his father had called him to agricultural land. Kiran further stated that on reaching scene of the offence he noticed that his father, mother and the accused were present. Accused no.1 was armed with a pick­axe while accused no.2 was armed with an iron rod. The accused were quarreling with PW­8 Subhash. PW­4­Kiran states that he, therefore, went towards them and at that time accused no. 1 was abusing deceased Sushila. Accused no.1 thereafter dealt blow of pick­axe on the head and chin of Sushila, on account of which, she sustained injury. Accused no.2 then dealt blow of iron rod and caused injury to Sushila. He states that his mother Sushila fell on the ground and thereafter the accused assaulted his father Subhash. PW4­Kiran stated that he was also assaulted with blow of iron rod on his left leg. Thereafter, accused No.1 Shivaji attempted to hit him with a pick­ axe but 10 Apeal1187­04judgment.sxw accused no.2 Samadhan stated that since two persons had fallen down, it was enough and therefore both the accused went away. PW­4 Kiran further stated that while leaving, accused No.1 was carrying handle of the pick­axe and accused no.2 was carrying iron rod. He states that he and his father both tried to lift his mother Sushila and thereafter the injured were shifted in bullock­cart to the hospital. He has identified the weapon with which his parents were assaulted. In cross examination he has admitted that Baburao is his real uncle and real brother of his father. He has further admitted that Baburao was missing since last 8 years and his land which is adjacent to their land was being cultivated by PW­8 Subhash. He has also admitted that the distance between the well and the land in which the accused reside is about 7000 feet. He has denied the suggestion that his mother Sushila was at the residence when he returned from cleaning the cow­dung of cattle. In further cross examination, he has denied the suggestion that he had not gone to the land and not witnessed the incident. This witness has also been cross­examined at length but nothing of importance has been elicited in his cross­examination, which would, in any manner, cast a reflection on his testimony. 7. This witness PW­4 Kiran certainly corroborates the testimony of PW­8 Subhash. This witness is also an injured witness who claimes that he had been assaulted by the accused. However, 11 Apeal1187­04judgment.sxw it appears that no medical certificate pertaining to his medical examination was produced and therefore, the trial Court, it appears that has not convicted the accused for the offence punishable under Section 324 of the Indian Penal Code. However, that single factor does not detract the credibility of this witness and this witness is also emerged as truthful witness. We, therefore, have no hesitation whatsoever in placing implicit reliance on the testimony of PW­8 Subhash and PW­4 Kiran. 8. Learned Trial Court had accepted the discovery of the weapon at the behest of appellants accused. Discovery is of the handle of the pick­axe and the iron rod. Those weapons have been identified by the witnesses and the medical officer has also deposed that these weapons could have caused injuries sustained by deceased Sushilaabi and PW­8 Subhash. However, even if discovery of weapon at the behest of the accused is left out of consideration there is overwhelming evidence in the evidence of PW­8 Subhash and PW­4 Kiran. As pointed out by us above, there is nothing on record which would, in any manner, impel us to discard the evidence of both these witnesses. 9. The learned counsel for the appellants has urged before us that on the face of the admitted facts, an offence punishable under Section 304 Part I of the Indian Penal Code would be made out. We 12 Apeal1187­04judgment.sxw do not find any merit in the aforesaid submission. There is no material on record to even remotely indicate that the accused have acted under a grave and sudden provocation. Accused have not brought on record anything as to what was stated by the deceased which would have provoked the accused to have assaulted the deceased and PW­8 Subhash. In such circumstance therefore, according to us, there is no merit in the submission.The accused had caused injuries to deceased Sushila which were sufficient in the ordinary course of nature to cause death. Deceased Sushila died on account of injury. In such circumstances therefore, an offence punishable under section 302 has been squarely made out against the accused. Similarly the accused had used dangerous weapon and inflected injury on PW­8. The accused have rightly been convicted for the offence publishable under section 307 of the I.P.C. 10. In the light of what has been held by us above, we do not find any merit in the appeal and the appeal filed by the accused sans merit and, therefore, deserves to be dismissed. 11. Accordingly Criminal Appeal No. 1187 of 2004 is dismissed confirming the conviction and sentence of the appellants. ( N. D. DESHPANDE, J. ) ( P.V. HARDAS, J.) 13