1 Cri.Appeal No.82 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.82 OF 2010 1. Vasant @ Jaikumar s/o Dhoman Ahire, Age 42 years, Occu.Agriculture, R/o Bhoiwada, Amalner, Taluka Amalner, District Jalgaon 2. Gopal @ Shashikant s/o Dhoman Ahire, Age 38 years, Occu.Agriculture, R/o Bhoiwada, Amalner, Taluka Amalner, District Jalgaon ..APPELLANTS (Original Accused) VERSUS - The State of Maharashtra ..RESPONDENT Mr Satej S.Jadhav, Advocate holding for Smt.S.S.Jadhav, Advocate for appellants Mr S.D.Kaldate, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 9th June 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. Appellant No.1 Vasant, who stands convicted for offence punishable under Section 302 of the Indian Penal Code, Section 307 of the Indian Penal Code and Section 452 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/- in default of which to undergo further rigorous imprisonment for six months, to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default of which to undergo further rigorous 2 Cri.Appeal No.82 of 2010 imprisonment for six months and sentenced to rigorous imprisonment for three years and to pay fine of Rs.2,000/-, in default of which to undergo further rigorous imprisonment for three months and appellant No.2 Gopal, who stands convicted for an offence punishable under Section 452 of the Indian Penal Code and sentenced to rigorous imprisonment for three years and to pay fine of Rs.2,000/-, in default of which to undergo further rigorous imprisonment for three months, by the Additional Sessions Judge, Amalner, by judgment dated 21.1.2010 in Sessions Case No.21 of 2008, 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.11 P.S.I. Krishna Patil, who was attached to the Amalner Police Station was directed by the P.I. on 19.3.2008 to investigate Crime No.45 of 2008. P.W.11 P.S.I. Patil accordingly proceeded to the Rural Hospital, Amalner and noticed the dead body of deceased Mangalabai and drew the inquest panchnama in the presence of panch witnesses at Exh.21. Upon completion of the inquest panchnama the dead body was forwarded for post mortem examination. Post mortem on the dead body of deceased Mangalabai came to be carried out by P.W.12 Dr.Rameshchandra Savakare. He noticed lacerated wound near below clavicle medial end of clavicle 3 cm x 2 cm x 2 cm with fracture of second rib. He opined that the injury was ante mortem and 3 Cri.Appeal No.82 of 2010 concluded that death of deceased Mangalabai was due to shock due to rupture of heart and lung due to traumas by sharp weapon. The post mortem report is at Exh.48. He further opined that the said injury could be possible by knife Article-3. It appears that P.W.1 Sakharlal, the first informant, was taken to the Rural Hospital at Amalner on 19.3.2008 and was examined by P.W.12 Dr.Rameshchandra Savakare. The history as narrated by P.W.1 Sakharlal was also recorded. External injury i.e. contused lacerated wound in front of left ear over the scalp 3 cm x 2 cm x 2 cm was noticed. It was vertical, having sharp edge and was a bleeding injury. P.W.1 Sakharlal was referred for further treatment to the Civil Hospital at Dhule. The certificate issued by the Rural Hospital at Amalner is at Exh.47. On the same day, Sakharlal came to be admitted in the Narmada Medical Foundation Hospital and was examined by P.W.14 Dr.Shinde. His condition was noticed to be serious and there was profuse bleeding from his scalp due to the injury. He had given the history of being assaulted by a knife at about 8.30 a.m. on 19.3.2008 by appellant Vasant. The following external injury was noticed. (1) Wound of entry was having sharp edges linear in direction 3 cm in width, bleeding was seen from the edges; (2) Wound of exit was vertical sharp in edges 2.5 cm anterior to pinna of left ear behind zygomatic promineance. There was profuse bleeding from that side also. 4 Cri.Appeal No.82 of 2010 The certificate issued by the Narmada Medical Foundation Hospital is at Exh.58. A Police Inspector of Amalner Police Station had arrived at the Narmada Medical Foundation Hospital for recording the statement of P.W.1 Sakharlal and accordingly, P.W.14 Dr.Shinde was requested to ascertain if Sakharlal was in a condition to give his statement. On P.W.14 Dr.Shinde opining that Sakharlal was in a fit condition to give his statement, the statement of P.W.1 Sakharlal at Exh.18 came to be recorded. P.W.13 P.S.I. Vijay Pagare, who was attached to the Amalner Police Station was entrusted with the investigation of Crime No.45 of 2008. Accused No.2 Gopal was interrogated while in custody and during the interrogation expressed his willingness to point out the place where he had concealed the knife. Accordingly, his memorandum came to be recorded in the presence of panchas at Exh.24. The accused led the Police and the panch in a Police vehicle near his house and reached a place in front of his father’s house and removed a knife, which had been hidden amongst the agricultural implements. The said knife came to be seized vide panchnama at Exh.24-A. The said knife is Article – 1. On 27.3.2008 the clothes of P.W.1 Sakharlal came to be seized in the presence of panchas vide seizure memo at Exh.25. The said clothes are Articles 5, 5-A and 5-B. Statements of witnesses came to be recorded and further to the completion of investigation a charge-sheet against the accused came to be submitted. 5 Cri.Appeal No.82 of 2010 3. Trial Court framed charge against the accused. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 14 witnesses. The trial Court upon appreciation of the evidence found that the prosecution had established the offence against the accused and convicted and sentenced them accordingly. 4. In order to appreciate and deal effectively with 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. 5. P.W.1 Sakharlal states that he and his mother Mangalabai were residing at the Bhoiwada. On 19.3.2008 at about 8.30 to 8.45 a.m. he along with his mother Mangalabai and his fiancée Sushma were in the house. He has stated that he was in love with Sushma since last five to six years and as the accused Nos.1 and 2, who are the maternal uncles of Sushma, had arranged marriage of Sushma with some other person, both P.W.1 Sakharlal and Sushma had decided to elope to Pune. They had accordingly eloped to Pune about five to six days prior to the incident and had returned from Pune just two days prior to the incident. Sushma meanwhile was residing at the house of P.W.1 Sakharlal. After their return from Pune a meeting of the members of the community had been arranged and in the said meeting it was agreed that marriage of Sakharlal should be solemnised with Sushma on 25.4.2008. On 19.3.2008 while P.W.1 Sakharlal was waving and his 6 Cri.Appeal No.82 of 2010 mother deceased Mangalabai was preparing tea, accused brandishing knives in their hands had entered the house. The accused were accompanied by one Swapnil, who was armed with a gupti. The makeshift of both room was in the gallery/balcony, where deceased Mangalabai was preparing tea. Sushma was sitting inside the room on a cot. The residential premises of P.W.1 Sakharlal consists of one room and the balcony. The accused upon entering the room of Sakharlal started assaulting him, as a result of which he sustained injury on the left side of his head near his left ear. Blood started oozing from the injury and on seeing the injury Mangalabai immediately rushed to save Sakharlal. Accused No.1 Vasant stabbed knife in the chest of Mangalabai. Sushma raised crises for help and ran down the stairs and as a result of the cries of Sushma the neighbours rushed in the room. On their arrival the accused fled from the room. The neighbours and Sushma carried the injured to the hospital. Mangalabai was declared dead when she was examined by the Medical Officer. Sakharlal was initially taken to the Government Hospital at Amalner and thereafter shifted to the Narmada Medical Foundation Hospital of P.W.14 Dr.Shinde. Sakharlal further states that his statement came to be recorded at Exh.18. He has identified the knife Article – 3, which was wielded by accused No.1 Vasant. 6. In cross-examination he has admitted that Sushma was minor at the time of their elopement. He has further agreed that a complaint had been filed in the Amalner Police Station accusing Sakharlal and 7 Cri.Appeal No.82 of 2010 others of kidnapping Sushma. He volunteered the same that the said complaint came to be lodged after the incident on 19.3.2008. He has further agreed that Sushma was residing with him since the time of their return from Pune. He has further agreed that he was clad in an underwear when the accused assaulted him. Initially he agreed that his mother had been assaulted in the room but then corrected himself that she had been assaulted in the gallery/balcony. He has denied the suggestion that he and his mother were assaulted simultaneously. He has stated that he was assaulted first and thereafter his mother. Omission had been pointed out that he had not stated that accused Vasant had assaulted by knife. Similarly, omission has been pointed out that he had not stated that Vasant had assaulted his mother on the left side of the chest. The omission is only in respect of “left”. Other minor omissions have been brought on record that he had not stated that he had worn a shirt while going to the hospital. 7. P.W.1 Sakharlal, an injured witness, has been cross-examined at length. We have minutely scanned the cross-examination and upon perusal, we find that nothing of importance has been elicited in the cross-examination, which would in any manner affect his veracity. Evidence of Sakharlal has emerged unscathed despite cross- examination. 8. Learned Counsel for the appellants has urged before us that the accused had no intention whatsoever to cause any injury to deceased 8 Cri.Appeal No.82 of 2010 Mangalabai and Mangalabai had suddenly intervened in the quarrel and, therefore, the accused cannot be held guilty for offence punishable under Section 302 of the Indian Penal Code. It is further urged before us that the evidence in respect of the offence punishable under Section 307 has not been established as the injury sustained by P.W.1 Sakharlal is a minor injury, particularly in the light of the omission in the first information report that accused No.1 Vasant had assaulted him with a knife. 9. There is no evidence whatsoever at least none has been brought on record on behalf of the accused that deceased Mangalabai had suddenly intervened and, therefore, the accused did not had the animus to kill deceased Mangalabai. In fact, in cross-examination P.W. 1 Sakharlal has clearly stated that he was assaulted first and thereafter Mangalabai was assaulted. In any event had this position emerged from the record, the accused would still be liable to be convicted for an offence punishable under Section 302 of the Indian Penal Code in the light of the doctrine of transfer of malice as per Section 301 of the Indian Penal Code. However, we find that there is no evidence to indicate that an accidental injury had been caused to Mangalabai. 10. Prosecution has examined P.W.6 Sushma, who was also an eye witness. Sushma deposes on similar lines as that of P.W.1 Sakharlal. She also states about the accused being armed with a knife while 9 Cri.Appeal No.82 of 2010 accused Swapnil being armed with a gupti. Sushma further deposes about the assault on Sakharlal as well as the assault on Mangalabai. The only variance between her evidence and that of Sakharlal is that she does not state that she rushed down the stairs in order to raise alarm. All that she states is that on seeing the assault on Mangalabai she raised alarm, as a result of which the accused fled from her house. 11. Sushma has also been cross-examined and in the cross- examination she has admitted that her maternal grandfather had lodged a complaint in the Police Station against Sakharlal and his relatives alleging that they had kidnapped Sushma. She has, however, clarified that the aforesaid complaint came to be lodged after 19.3.2008. She has also stated as correct that in the meeting of the members of the community, it was agreed to let bygones be bygones and to solemnize the marriage of Sakharlal and Sushma on 25.4.2008. She has also stated that the accused had consented for the marriage. She, however, states that the consent was a camouflage and was not a genuine consent. In further cross-examination she has stated that she had noticed the accused when they had reached the gallery. She has further admitted that Swapnil had caught her as she was trying to go towards the gallery. She has further stated that on realising that Sakharlal is being assaulted she had raised an alarm. She has denied the suggestion that both Mangalabai and Sakharlal had come inside the room from the gallery. She has denied the suggestion that she had descended the stairs in order to raise alarm. In further cross- 10 Cri.Appeal No.82 of 2010 examination an omission has been proved that she had not stated in her previous statement that Swapnil had caught her hand. 12. Prosecution has examined P.W.8 Suresh Koli, brother of deceased Mangalabai. He deposes about the love affair of Sakharlal and Sushma as well as about the elopement of Sakharlal and Sushma. He deposes about the summoning of the meeting of the members of the community and all agreeing to solemnize the marriage of Sushma and Sakharlal. In respect of the incident he states that on 19.3.2008 at about 8.30 to 9.00 a.m. he noticed the neighbours running towards the house of Mangalabai and, therefore, rushed there. He states that he had noticed accused 1 and 2 and Swapnil while descending the staircase. He had noticed accused 1 and 2 being armed with knives while accused Swapnil being armed with gupti. He states that he reached upstairs and noticed Mangalabai lying injured. He states that thereafter the injured were shifted to the hospital. In cross- examination omission has been duly proved that he had not stated about noticing accused 1 and 2 and Swapnil while descending the staircase of the house of Mangalabai. 13. Prosecution has also examined P.W.9 Deepak Bhoir, an auto- rickshaw driver, who had taken the injured to the hospital. As pointed out by us above, prosecution has examined P.W.12 Dr.Rameshchandra Savakare, Medical Officer of the Government Hospital at Amalner and P.W.14 Dr.Anil Shinde, Medical Officer at the Narmada Medical 11 Cri.Appeal No.82 of 2010 Foundation Hospital in respect of the injuries sustained by P.W.1. Both these witnesses state about the injuries being grievous. None of them state that the injuries were sufficient in ordinary course of nature to cause death. Omission has been duly proved that P.W.1 Sakharlal had not stated that accused No.1 Vasant had caused an injury by a knife. The injury sustained by P.W.1 Sakharlal also cannot be termed as a grievous injury in the light of Section 325 of the Indian Penal Code. Accused No.1, therefore, according to us would be liable for conviction for an offence punishable under Section 324 of the Indian Penal Code. 14. In respect of the offence punishable under Section 302 of the Indian Penal Code, i.e. of causing death of deceased Mangalabai, according to us, in the light of the overwhelming evidence adduced by the prosecution, the offence has been proved against accused No.1 Vasant beyond reasonable doubt. Both P.W.1 Sakharlal and P.W.6 Sushma have emerged unscathed and no dent has been made in their testimony despite the searching cross-examination. There is no material on record, which would even remotely indicate that it was not accused No.1 Vasant, who had caused the injury to Mangalabai or that the injury had not been caused to Mangalabai in the manner deposed to by these witnesses. In the face of such overwhelming evidence, therefore, according to us prosecution has proved the offence against accused No.1 Vasant beyond reasonable doubt. We see no reason whatsoever to interfere in respect of the conviction of accused No.1 Vasant for an offence punishable under Section 302 of the Indian Penal 12 Cri.Appeal No.82 of 2010 Code. Though the prosecution may not have succeeded in proving the discovery of the weapons, that by itself, according to us would not indicate that accused had not gone to the house of P.W.1 Sakharlal armed with knives. Similarly, therefore, we find that no interference in the conviction of accused No.2 Gopal for an offence punishable under Section 452 of the Indian Penal Code is called for. 15. We, therefore, partly allow this appeal. The conviction and sentence of accused No.1 Vasant for an offence punishable under Section 302 of the Indian Penal Code is maintained. His conviction and sentence for an offence punishable under Section 307 of the Indian Penal Code is set aside and is altered to a conviction for an offence punishable under Section 324 of the Indian Penal Code and he is sentenced to rigorous imprisonment for two years and to pay fine of Rs.1,000/-, in default of which to undergo further rigorous imprisonment for three months. Conviction of accused No.1 for offence punishable under Section 452 of the Indian Penal Code is hereby confirmed. However, the sentence of rigorous imprisonment for three years is altered to a sentence of rigorous imprisonment for one year while maintaining the sentence of fine, including the default sentence. The substantive sentences shall run concurrently. Conviction of accused No.2 Gopal for an offence punishable under Section 452 of the Indian Penal Code is hereby confirmed. However, the sentence of rigorous imprisonment for three years is altered to rigorous imprisonment for one year while maintaining the sentence of 13 Cri.Appeal No.82 of 2010 fine, including the default sentence. Both the accused would be entitled for set off for a period of imprisonment undergone by them. Time of eight weeks is granted to accused No.2 Gopal to surrender to his bail. His bail bonds stand cancelled. Appeal is partly allowed. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/82.2010criapeal)