1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.307 OF 2008 1. Ramesh S/o.Asaram Nathbhajan, Age-22 years, Occu-Nil, 2. Suresh S/o.Asaram Nathbhajan, Age-20 years, 3. Rohidas S/o.Asaram Nathbhajan, Age-19 years, 4. Rahul S/o.Asaram Nathbhajan, Age-18 years, All Resident of Hatadi, Tal. Ghansawangi, Dist. Jalna APPELLANTS VERSUS The State of Maharashtra, RESPONDENT Mrs.S.S.Jadhav, learned counsel for the appellants. Mr.B.V.Wagh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 06/09/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Appellants are convicted in Sessions Case No.49/2007 by the Additional Sessions Judge, Jalgaon vide his judgment and order dated 02/04/2008 and convicted the appellants for the offence 2 punishable u/s. 143 of The IPC, and sentenced to suffer R.I. for 3 months and to pay a fine of Rs.500/- each i.d. to suffer R.I. for one month. The appellants were also convicted for the offence punishable u/s. 147 of The IPC and sentenced to suffer R.I. for 3 months and to pay a fine of Rs.500/- i.d. to suffer R.I. for one month. The appellants were also convicted for the offence punishable u/s. 148 of The IPC and sentenced to suffer R.I. for 3 months and to pay a fine of Rs. 500/- i.d. to suffer R.I. for one month. The appellants were also convicted for the offence punishable u/s. 149 r/w. 302 of The IPC and sentenced to suffer life imprisonment and to pay a fine of Rs. 5,000/- i.d. to suffer R.I. for one year, and also convicted u/s. 149 r/w. 324 of The IPC and sentenced to suffer R.I. for one year and to pay a fine of Rs.1,500/- i.d. to suffer R.I. for six months, also convicted for the offence punishable u/s. 149 r/w. 506 of The IPC and sentenced to suffer R.I. for six months and to pay fine of Rs. 1,000/- i.d. to suffer R.I. for 4 months. All the substantive sentences ordered to run concurrently. The appellants have questioned the legality of this judgment by the present criminal appeal. 2. At the outset, the case of the prosecution can be summarized as : a) On 02/10/2006, deceased Sudam, injured Vishnu i.e. son of deceased Sudam were working in their field. Complainant Ambadas (P.W.No.1) was also working in his agricultural field which is situated at village Hatadi, Tal.Ghansawangi, Dist. Jalna. At about 3.00 p.m. to 3.30 p.m., or so, complainant Ambadas heard shouts of Sudam, 3 who was working in his field. Hence complainant and one Siddartha Shinde rushed there. He noticed that Ramesh, appellant no.1, Suresh appellant no.2 were assaulting Sudam with an axe in their hand while Ramdas appellant no.3 and Rahul appellant no.4 and one Sheshrao (juvenile accused) were assaulting Vishnu with the sticks in their hand. Ambadas tried to intervene, but was threatened at the hands of appellants not to interfere and and not to intervene otherwise he will be also killed. Due to the said assault, Sudam and Vishnu collapsed in their agricultural field, then the assailants ran away from the spot. Initially Ambadas reported the incident to the Police Patil and then the incident was reported in Ghansawangi Police Station. Accordingly, an offence was registered vide CR No. 74/2006 initially for the offence punishable u/s. 143, 147, 148, 149, 326, 504, 506 of The IPC. Investigation was handed over to one P.S.I. Jadhav. Injured were taken to Rural Hospital, Ghansawangi from where they were shifted to Civil Hospital Jalna by Police Patil, P.W.No.9 and one Balram Shinde. In the Civil Hospital at Jalna, while taking medical treatment, Sudam expired in the early hours of 03/10/2006. Hence offence punishable u/s. 302 of the IPC was added. b) During the further investigation, Investigation Officer (P.W.No.14) visited the place of incident and prepared spot panchnama (Exh.29), conducted the house search of the accused and during the house search, recovered sticks article no.1 to 3 and axe article no.4, and the said weapons were seized under seizure 4 panchnama (Exh.35). On 03/10/2006, he had recorded statement of some witnesses. c) On 16/10/2006, appellants accused were put under arrest. Blood stained clothes of Suresh accused no.2 and Rohidas accused no.3 were seized under panchnama Exh.39 and Exh.40. On 30/10/2006, seized articles/muddemal property were sent for chemical analysis. During the investigation, post mortem notes (Exh. 55), injury certificates (Exh.60 and 61), and inquest panchnama were collected. Further to the completion of the investigation, a charge sheet against the accused came to be filed. d) After passing necessary committal order, trial against the appellants was committed to the Court of Sessions Jalna. e) Charge was framed by learned Additional Sessions Judge, Jalna against the appellants for the offence punishable u/s. 143, 147, 148, 149 r/w. 302, 149 r/w. 323, 149 r/w. 504 and 149 r/w. 506 of The IPC, to which the appellants pleaded not guilty and claimed to be tried f) During the trial, to substantiate the charge lavelled against the appellants, the prosecution has examined total 14 witnesses including P.W.No.1 Ambadas, brother of the deceased, who is the complainant in this case and also an eye witness. P.W.No.2 Parmeshwar Nagorao Nathbhajan who saw appellants and deceased 5 were working in their field prior to the alleged incident. P.W.No.3 Prakash Pandharinath, the witness to inquest panchnama (Exh.37). P.W.No.4 Bhagwan Bapurao Shinde, witness to the spot panchnama (Exh.29), P.W.No.5 Vandana Ambadas Shinde, wife of the complainant, also claimed to be the eye witness to the incident, P.W.No.6 Vishnu, son of the deceased who is an injured eye witness. P.W.No.7 Ananda Pralhad Shinde, panch witness to the house search of the accused, from where 3 sticks, article no.1 to 3 and axe article no.4 were seized under the panchnama (Exh.35). P.W.No.8 Sayyad Ashpak Sayyad, a panch witness to the seizure panchnama of the clothes of the deceased (Exh.37), seizure panchnama of the clothes of juvenile accused Sheshrao (Exh.38), seizure panchnama of clothes of accused no.4 (Exh.39), seizure of clothes of accused no.2 (Exh.40), P.W.No.9 Acchyutrao Shinde, the Police Patil of the village who took the injured from the place of incident initially to the Rural Hospital Ghansawangi, and then to Civil Hospital Jalna. P.W.No.10 Vilas Waghmare, P.W.No.11 Vitthal Bhale, who has recorded A.D. which is at Exh.52, P.W.No.12 Dr.Sudam Tulshiram Mhetre, who has conducted the autopsy on the dead body of Sudam and the post mortem notes (Exh.55), P.W.No.13 Dr.Dinesh Boralkar, Medical Officer attached to Rural Hospital, Ghansawangi, who had initially examined injured Sudam and Vishnu and issued certificates (Exh.60 and 61), P.W.No.14 A.P.I. Deshmukh. Prosecution also tendered C.A. report at Exh.69. g) Defence of the appellants is of total denial. According to 6 them, as the case under the Atrocities Act was filed against the complainant and injured Vishnu, they are falsely implicated in this case. h) After appreciating the evidence lead by the prosecution, learned Lower Court pleased to convict the appellants and sentenced them as stated in para no.1 of this judgment, which is impugned in this appeal. Learned Lower Court has accepted the testimony of the eye witnesses in the light of medical evidence laid by the prosecution. i) With the assistance of learned defence counsel and learned APP for State, we have perused the impugned judgment as well as the record and proceedings received from the Lower Court. 3. Considering the charges faced by the appellants, first it is necessary to consider the medical evidence given before the Trial Court. It is not seriously under dispute that initially the injured were taken to the Rural Hospital, Ghansawangi, from where as per medical advice of the Medical Officer, Rural Hospital P.W.No. 13, injured were then taken to Civil Hospital at Jalna where injured Sudam was expired while he was under treatment. a) It transpired from the evidence of P.W.No.13 Dr.Dinesh that on 02/10/2006, he was attached to Rural Hospital Ghansawangi as Medical Officer. Injured Sudam and injured Vishnu were referred to him by Ghansawangi Police Station. On examination of Sudam, he 7 had noticed following injuries on his person. 1. Multiple incised wound on occipital and parietal bone 2. Incised wound on right leg middle 1/3rd anterior aspect. Accordingly he had issued injury certificate at Exh.60. According to him, the injuries noticed by him are possible due to sharp weapon like article 4 Axe. On examination of Vishnu, he had noticed following injuries : 1. Abrasion on head. 2. Blunt trauma on right and left leg. Accordingly he had issued medical certificate at Exh.61. According to him, these injuries are possible due to blunt object like Article no.1 to 3 i.e. sticks. In the cross examination of this witness, suggestions were given that as per medical certificate Exh.60 and 61, injuries are simple in nature. Witness has also admitted that considering the hollow part of Article no.1 to 3, the bluntness of injury, impact of blow will be lesser than the blow of this stick. b) P.W.No.12 Dr.Sudam Mhetre has conducted the autopsy on the dead body of Sudam on 03/10/2006 in between 10.40 a.m. to 11.40 a.m. in Civil Hospital, Jalna and noted following external and internal injuries on the dead body of Sudam which he had mentioned in coloumn no.17 and 19 of the post mortem notes Exh.55. 1. C.L.W. of size 4 x 2 cm. Skin deep over shin of right tibia which was in vertical direction. 8 2. Contusion over dorsum of right foot of size 5 x 4 cm. it was irregular. 3.C.L.W. over right phalangeal web between right index and right middle finger of size 5 x 2 cm. It was skin deep and irregular. 4. C.L.W. over left parietal region of size 5 x 2 cm. It was skin deep and vertical in sagittal plane. 5. Contusion over left side of chest over 5,6,7 and 8 rib of seize 5 x 3 cm. it was irregular. 6. Contusion over left upper arm of size 7 x 2 cm. on lateral aspects it was oblique in direction. 7. C.L.W. over occipital region 5 x 2 cm. it was skin deep and irregular. 8. C.L.W. over right upper arm of size 3 x 2 cm. it was skin deep and vertical. 9. C.L.W. over right hand ventral aspect of size 2 x 1 cm. the same was skin deep, irregular and somewhat vertical. 10. Contusion over left hand ventral aspect of size 3 x 2 cm. It was irregular. 11. Contusion over central area of back of size 5 x 2 cm. the same was vertical in direction. Internal Injuries : 1. Haematoma under left parietal region with injury no.4 mentioned in coloumn no.17. 2. Fracture line of size 3 cm, noted in left parietal bone. It was vertical in sagittal plane. 9 3. Large subdural collection of about 120 ml. in left hemisphere. According to him, the injuries found on the person of Sudam are antemortem injuries. He has opined about the cause of death as death due to subdural hemorrhage, secondary to head injuries. He has also opined that these injuries can be possible due to hard and blunt object as well as semi sharp object. He has also deposed that these injuries are possible due to axe, article no.4 and some injuries are possible due to article no.1 to 3 sticks. In his cross examination, suggestions were given that for the irregular injuries, the sharp weapon should be of uneven size or length, which he has denied. He has also denied that these injuries are not possible due to stroke of axe article no.4. On specific suggestion, he volunteers that the injury mentioned at Sr.No.3 in coloumn no.19 regarding Haematoma is in connection with brain injury, which is sufficient to cause death of deceased Sudam. 4. From the analysis of the medical evidence referred in above paragraph supra, it is evident that the injury at Sr.No.3 in coloumn no.19 at Exh.55 and injury no.1,4 and 7 are connected with the internal injury no.1 to 3 mentioned in coloumn no.19, which has resulted in the death of Sudam, hence the death of Sudam is homicidal death. At the same time, the nature of injuries sustained by Vishnu are not on his vital parts of the body and simple in nature. 10 5. Then the next question arose for our consideration is as to who are the authors of these injuries and for that purpose, it is necessary consider the evidence of eye witnesses and partly the evidence of injured eye witness P.W.No.6 Vishnu, son of the deceased. 6. It transpired from the evidence of P.W.No.6 Vishnu that on the day of incident, he was grazing cattles in his field. The appellants and the juvenile accused Sheshrao approached towards him, holding sticks and axe in their hand. As he saw that appellant Ramesh and Suresh i.e. appellant no.1 and 2 were holding axe in their hand and other appellants and juvenile accused Sheshrao were holding sticks in their hand, and approaching towards him, he ran towards his father Sudam, Appellant Ramesh and Suresh started assaulting his father with axe in their hand, while remaining appellants and Sheshrao started assaulting him with the sticks in their hand. On hearing the shouts, Ambadas P.W.No.1 and Vandana P.No. 5 came at the spot. They were requesting appellants not to assault us, at that time, the appellants were shouting that they will finish Sudam. One Shobhabai also came there. As the appellants threatened to P.W.No. 1 and P.W.No. 5, they left the field and went towards the village. Deceased Sudam was assaulted on his head and legs by appellant no. 1 and 2 while remaining appellants assaulted on his legs and on his hand. Due to assault, both of them collapsed. Then the appellants ran away from the spot. After some time, Police Patil P.W.No. 9 and one Baliram Shinde came there and took them to hospital. He became unconcious, and when he was in Civil Hospital Jalna, he 11 came to know that his father was no more. In his cross examination, he had answered to the suggestions that at the time of scuffle, no talk took place between him and the accused. According to him, as it was the day of Dasara festival, the agriculturists in the adjoining fields were not present there. He has admitted in the cross examination that prior to the alleged incident, father of the first appellant Asaram have filed report against his grandfather himself, his father and complainant, on account of abuse and assault to family members of Asaram. He has denied that as the bail was refused to his grand-father, relations of appellants with deceased and complainant became strained. It has brought on record that at the time of incident, P.W.No.6 Vishnu as well as his father were not having any agricultural equipments in their hand. He has admitted that there was standing Bajra crop at the height of 5-6 feet in the agricultural field where his uncle was grazing his cattles. On perusal of the entire oral evidence of P.W.No. 6, we do not find anywhere that his evidence was shakened on the point that deceased Sudam was assaulted by appellant no.1 and 2 with the axe in their hand, while he was assaulted by the remaining appellants. Mere denial of the facts will not take the place that the facts denied stand proved. 7. The evidence of P.W.No.5 Vandana, wife of the complainant shows that on the date of incident, deceased Sudam was working in his field. At that time, she was taking meals with Sudam. Injured 12 Vishnu was grazing bullocks. He came running towards Sudam. At that time, she saw that accused were chasing him. Sudam proceeded towards Vishnu. At that time, Ramesh and Suresh assaulted Sudam with axe while remaining appellants and Sheshrao, juvenile accused assaulted Vishnu with sticks. She tried to save Vishnu, but appellant no.4 Rahul pulled her away. Even though she was requesting not to assault Sudam and Vishnu, nobody listened her. When she saw that Sudam sustained injuries, she got frightened, and ran away towards house and reported the incident to Police Patil. It transpired in her cross examination that the bullocks of the Vishnu were grazing at the distance of 2 pherlong. There was standing cotton crop to the height of 2 to 3 ft. The incident took place at the distance of 10 ft. at the northern side of Gotha. Improvement made in her statement was proved that she has not stated in her police statement that when the appellants assaulted Vishnu and Sudam, she covered the body of Vishnu. She do not know anything about the previous antecedents. It has specifically came on record that at the time of assault on Sudam, appellants no.1 and 2 were having axe in their hands. It is to be noted that there is no reference of her presence as to taking meals with Sudam at the time of alleged incident. What is the effect of it, it will be seen in the later part of the judgment. 8. Then remain the evidence of the complainant Ambadas. It 13 transpired in the evidence of Ambadas that before the alleged incident occurred, some quarrel took place between the father of the appellants Asaram and Sudam for which report was lodged by the deceased in the Police station. At the time of alleged incident, he was at the distance of 200 ft, but when he heard the shouts of Sudam, he rushed towards the spot and at that time, he saw that appellants no. 1 and 2 were having axe in their hand while the remaining appellants have sticks in their hand with which they assaulted Sudam and Vishnu. When he tried to intervene, he was threatened not to intervene. After Sudam and Vishnu collapsed on the ground, he ran towards the village to bring the villagers. Villagers reached at the spot including Police Patil, they shifted the injured initially to the Primary Health Center, Ghansawangi, from where they were shifted to the Civil Hospital, at Jalna. On his report, offence was registered in Ghansawangi Police Station. In his cross examination, the incidents of earlier quarrels were brought on record. It is also brought on record that there is dispute over the right of way in between deceased Sudam and father of appellants Asaram. According to him, till he reached at the spot, the incident of assault was in progress. There was standing crop of Bajra and cotton in the adjacent fields. When he was questioned about how the injured were assaulted, he volunteers that the blows were given to Sudam by appellants no.1 and 2 from the blunt side of the axe as well as from the sharp side of axe. He denied the suggestions that he has not witnessed anything and giving evidence 14 as father of appellants have lodged case of Atrocity Act against him. 9. Heard learned counsel for appellants and also learned APP for State in the light of this evidence. During the course of submissions across the bar, learned counsel appearing for the appellants put emphasize on the testimony of P.W.No.1, the complainant and his wife Vandana P.W.No.5 that on the ocular evidence, their testimony need not appeared to be probable as they are the eye witnesses. It is also tried to urge that there is no possibility that they might have seen the incident as deposed before the Court in view of the fact that there is standing crop of Bajra of 6ft.height in the adjoining fields and the crop of cotton about 4 ft. in height. It is also urged that there is variance in the medical evidence about the examination of the injured Sudam and injured Vishnu initially by P.W.No. 13, who has noted that he has noticed only 2 injuries on the body of deceased Sudam and also opined that these injuries are simple in nature. As against this, there are 11 injuries noticed by P.W.No.12 while conducting the autopsy on the dead body of Sudam. Considering the variance about the external injuries noticed in the post mortem as well as the injuries noticed on Exh.60 by P.W.No.12, it can not be said that external injuries noticed by P.W.No.12 while conducting the post mortem were remain un-noticed by P.W.No.13 while examining deceased Sudam. It is also urged that considering the testimony of Visnu, it can not be said that there was common object of the unlawful assembly to cause the murder of deceased Sudam, but it is to be held that in the fraction of second, due to the alleged assault by 15 appellants no.1 and 2, deceased Sudam sustained grevious injury, which resulted in his death. In the premise, considering the age of the appellants at the time of occurrence of the incident, and the way and manner, the evidence has come before the Court, offence punishable u/s. 302 of The IPC will not be attracted, hence the punishment against the appellants to be reduced. It is also urged that so far as applicant no.3 and 4 are concerned, admittedly they have not assaulted deceased Sudam, hence they be exonerated from the charge of murder or causing grevious injury to deceased Sudam and prayed to allow the present appeal. 10. Learned APP support the judgment of the trial court as according to him, it has come on record from the evidence of the eye witnesses that at the time of incident, all the appellants were armed with weapons like axe and sticks. Deceased Sudam and injured Vishnu were unarmed. Considering the medical evidence, it is to be held that the common object of the unlawful assembly is to kill deceased Sudam and to cause grevious hurt to injured Vishnu. In the premise, finding recorded by the Trial Court need not be interfered and prayed to dismiss the appeal. 11. Considering these submissions across the bar, it is to be noted that out of the direct evidence available in this case is concerned, the evidence of P.W.No.6, injured witness Vishnu, son of deceased Sudam required to be accepted. On careful scrutiny of the evidence of Vishnu P.W.No.6, it reveals that he ran towards Sudam, his father, 16 when he saw the appellants and Sheshrao were approaching towards him holding the weapons in their hand. Appellants chessed Vishnu. This fact is not transpired from the evidence of P.W.No.1, the complainant and P.W.No.5 Vandana, his wife as they reached at the spot after hearing hue and cry of Sudam and Vishnu. Thus whether the common object of the appellants and Sheshrao was to kill Sudam or to cause injury to the Vishnu, is to be gathered from the evidence of Vishnu itself. The evidence of P.W.No.1 and P.W.No.5 is silent on this aspect, and it is but natural that they reached at the spot later on. Even though Vandana claimed that she was taking meals with Sudam, it is not supported either by the evidence of P.W.No.1 or by the evidence of P.W.No.6, nor by the spot panchnama Exh.29. In the circumstances, we accept the testimony of Vishnu and considering the scenario as projected by him, we have to hold that the common object of the assembly was to cause hurt to Vishnu and not to kill Sudam. 12. We have discussed the medical evidence in the earlier part of the judgment and hold that the death of Sudam is homicidal and once we have concluded that the death of Sudam is homicidal then further question require consideration that who are responsible for this death and whether the homicidal death was due to to intentional assault on his person or otherwise. Overall testimony of P.W.No.6, the injured eye witness, complainant P.W.No.1 and Vandana P.W.No.5 is consistent on the point so far as injuries sustained by Sudam is due to assault of appellants no.1 and 2. In view of this, the case 17 against the appellants no.1 and 2 is squarely covered under clause 'thirdly' of section 300 of The IPC as on the spur of moment, there was common intention in between these