1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 820 OF 2010 IN CRIMINAL APPEAL NO. 483 OF 2010 DEEPAK MARUTI GHATE & ANR... .. APPLICANTS Vs. STATE OF MAHARASHTRA .. .. RESPONDENT Mr. Shrikant Shivade i/b M. S. Mohite for the applicants Ms. U. V. Kejariwal, APP CORAM: SMT. RANJANA DESAI & R. G. KETKAR, JJ. DATED : 26th July, 2010 P.C. The applicants are original accused 1 and 3 respectively. They were tried along with six others for having committed offences punishable under Section 143, 147,148, 302, 307, 324 read with 149, 34 and 504 of the Indian Penal Code (“I.P.C” for short) and under Section 3, 25(1) of the Arms Act. The applicants were convicted for the offence punishable under Section 302 of the I.P.C. and were sentenced to suffer life imprisonment. They were 2 acquitted of the rest of the offences. 2. At the trial the case of the prosecution was that deceased Krishna Gomare and his family were in the business of supplying building material. Accused 1 and members of his family were also doing the same business. There was a business rivalry between the two families. One Joglekar builder had started scheme of construction of bungalows. Accused 1 got the work of supply of building material of 35 bungalows while deceased Krishna Gomare got the work of supply of building material for 13 bungalows. The construction site originally belonged to the family of accused 1. Accused 1, therefore, expected that he would get the work order for supply of building material for all the bungalows. Since the builder had given the work order of 13 bungalows to deceased Krishna, the accused entertained a grudge in their mind against him. 3. The incident in question took place on 12/4/07 at about 3-30 p.m. at the service center on Neral-Kalamb road belonging to PW 11 Barkat Ali. According to the prosecution at about 3-30 p.m. PW 1 Complainant Macchindra Gomare came on motor cycle of PW 4 Ashok Joshi to the said service center. Deceased Krishna Gomare and PW 2 Gurunath Gomare were already present there. At that time the tempo owned by accused 1 3 came there. Accused 8 was driving the said tempo. Accused 1 and 3 got down from the tempo. There was exchange of words between accused 1 and 3 and deceased Krishna Gomare and others. Accused 1 and 3 then went towards the tempo, took swords from the cabin of the tempo and came to the deceased. The other accused had with them iron rods, iron pipes, tommy etc. Accused 1 and 3 gave blow of swords on the head of deceased Krishna. The deceased fell down due to the head injuries. Other accused also dealt blows on the deceased. PW 2 Gurunath also received bleeding injuries. The deceased and PW 2 were taken to the hospital at Badlapur. On the way to Badlapur the deceased succumbed to the injuries. PW 1 Macchindra gave his complaint. The accused were arrested on 13/4/07. After completion of the investigation, the applicants along with the other accused were tried and the applicants were convicted as aforesaid. 4. We have heard learned counsel for the applicants at some length. Counsel submitted that learned Sessions Judge has disbelieved almost the entire prosecution story except its case as against accused 1 and 3 as regards the assault on the head of the deceased. Counsel submitted that learned Sessions Judge has disbelieved the prosecution version about the commencement of the incident in question. Learned Sessions Judge has held that motive is not proved. Counsel submitted that in the circumstances 4 learned Sessions Judge could not have convicted accused 1 and 3. Counsel submitted that it is the deceased and his people who were aggressive. The deceased had given instructions to the service center that accused 1’s vehicle should not be serviced. Deceased Krishna Gomare and PW 2 Gurunath Gomare were already present at the service center. They were waiting for accused 1 to come there. There was exchange of words between the two sides. PW 1 Macchindra Gomare and other persons from his side tried to attack the accused and, therefore, the accused had to react to the assault in exercise of their right of private defence. 5. Counsel drew our attention to the evidence of PW 9 Dr. Deshmukh who had done the postmortem on the deceased and prepared the postmortem notes. Counsel submitted that injuries 1 and 2 mentioned in column 17 are head injuries. Injury No. 2 is fracture of parietal bone which is the result of injury No. 1 i.e. CLW of size 1cm x 1 cm x 7 cm on left parietal area. Counsel submitted that though PW 9 has stated that injury No. 2 is sufficient in ordinary course of nature to cause death, he has stated that the said injuries are less likely to be caused by weapon Articles 15 and 22 i.e. swords. Counsel pointed out that in the cross-examination the doctor has stated that fracture of parietal bone does not always result into death of a person and probability of death can be calculated if due to fracture of 5 parietal bone there is damage to the brain. PW 9 has further stated that in this case as there was no injury to the brain it was difficult to say that there was probability of death due to fracture of left parietal bone. Counsel submitted that, therefore, it cannot be said that injury Nos. 1 and 2 resulted into death of deceased Krishna. 6. Counsel then took us to the evidence of PW 10 API Sanjay Babar. He pointed out that API Babar has stated that in his letter addressed to the chemical analyser Exh.-108 he has given description of the weapons. He has mentioned that weapon at serial No. 10 is stick found on the spot having bloodstains on it and hair affixed. Counsel submitted that the bloodstains found on the stick are of the blood group of the deceased. Therefore, it appears that a stick was used to attack the deceased on his head and not swords. Counsel submitted that the deceased was involved in a number of criminal cases. He had antecedents whereas accused 1 and 3 have no antecedents. They come from a respectable family. Their family depends on their income. In the circumstances of the case, they could at the most be said to have committed offence under Section 304 Part II of IPC. Counsel submitted that in the circumstances they may be released on bail. Learned APP has strenuously opposed the grant of bail. 7. It is true that learned Sessions Judge has disbelieved the prosecution 6 case of unlawful assembly. Learned Sessions Judge has also held that motive is not proved. However, it is well settled that when there is clinching eye-witness account, absence of motive pales into insignificance. In the present case there is eye-witness account of four witnesses i.e. PW 1 Macchindra, PW 2 Gurunath, PW 3 Nandkumar and PW 4 Ashok Joshi. All these witnesses are consistent that accused 1 and 3 dealt blows on the head of the deceased with swords. It is pertinent to note that PW 2 Gurunath Gomare is an injured eye-witness whose presence at the scene of offence can hardly be disputed. We prima facie find that evidence of Pws 1, 2,3 and 4 is consistent on the aspect of attack by accused Nos. 1 and 3 on the head of the deceased with swords. The fact that the investigating officer also sent the stick to the chemical analyzer and the stick had bloodstains which match the blood group of the deceased is, in our opinion prima facie does not help the applicants. 8. It is pertinent to note that there is recovery of swords at the instance of accused 1 and 3. Sword recovered at the instance of accused 1 had bloodstains of blood group “A” which is the blood group of the deceased. The sword recovered at the instance of accused 3 had human blood. 9. It is true that PW 9 Dr. Deshmukh has stated that there was no injury 7 to the brain of the deceased. He has also stated that injuries 1 and 2 are less likely to be caused by weapons Articles 15 and 22 i.e. swords. He has also stated that there was no damage to the brain and, therefore, it is difficult to say that death was due to fracture of left parietal bone. These statements made by Dr. Deshmukh will have to be read against the background of the categorical statement made by Dr. Deshmukh that injury No. 2 shown in column 17 is sufficient in ordinary course of nature to cause death. We notice that other injuries suffered by the deceased, as seen from the postmortem notes, are not so serious and, therefore, doctor has rightly said that injury No. 2 was sufficient to cause death. Dr. Deshmukh has not made a positive statement that injuries 1 and 2 can never be caused by swords. Prima facie it appears to us that the statement made by Dr. Deshmukh that there was no injury to the brain and it is difficult to say that there was probability of death due to fracture of left parietal bone is a general statement. He has clearly opined that injury No. 2 is sufficient in the ordinary course of nature to cause death. In our prima facie opinion, therefore, Dr. Deshmukh’s evidence does not help the applicants. Morever when there is consistent evidence of eye-witnesses that has always to be preferred to the evidence of a doctor. 10. It is also not possible for us to hold that the applicants could at the 8 most be guilty of 304 Part II of the IPC. The applicants carried swords in the tempo. They quarreled with the deceased, went back to the tempo, took out the swords and came to the deceased and dealt blows with swords on his head. Prima facie it is difficult to hold that the accused had no intention to commit murder. 11. In the circumstances, we are of the opinion, that the applicants cannot be granted bail. Application for bail is rejected. (SMT. RANJANA DESAI, J.) (R. G. KETKAR, J.)