1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMIAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1182 OF 2002 1. Rajesh Vishnu Tawade 2. Shridhar Krishna Panchal Both R/O. Ganesh Wadi, Near Lakme Company, Govandi, Mumbai 400 088 (now confined at Yerwada Central Prison, Pune) ....Appellants. (Orig. Accused Nos.2 and 4) Vs. State of Maharashtra ..Respondent. WITH CRIMINAL APPEAL NO.1190 of 2002 1. Suresh Dagadu Chavan @ Papu 2. Prakash Tatu Pednekar Both R/O. Ganesh Wadi, Near Lakme Company, Govandi, Mumbai 400 088. (Now confined at Yerwada Central Prison, Pune) ..Appellants. (Orig. Accused Nos.1 and 3) Vs. State of Maharashtra ..Respondent. .... Mrs. Anita Agarwal for the Appellants (original accused Nos.2 to 4.) Mr. D.G. Khamkar for the Appellant (original accused No.1.) Dr. F.R. Shaikh, APP for the State. .... CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. 2 5th January, 2009. ORAL JUDGMENT (Per SWATANTER KUMAR, C.J.) : 1. Pradip P. Kadam, P.W.8 received a telephone call from an unknown person at about 20.30 hrs. on 29th July, 1992 informing him that four persons had injured one person by stabbing him near Lakme company. After receiving the information the said API along with other staff including PSI Amrutsagar, Dhaygude and Ghag reached the spot and came to know that the injured had been removed to Rajawadi Hospital. Two persons out of the team remained at the spot while the others proceeded to the Hospital. On enquiry they were informed that the injured, Atmaram Patil, had been declared as dead before admission. The son of the deceased, Kishore Atmaram Patil, P.W. 1, was present upon whose information an FIR (Exhibit 10) was recorded. P.W. 1 had stated that he knew the four accused viz. Suresh Chavan, Rajesh Tawade, Prakash Pednekar and Shridhar Panchal. All the accused were residing in Ganesh Wadi, near Lakme Compound, Govandi. The said witness was also residing in the same area. There were two Mandals viz. Jai Bhavani Mitra Mandal and Shiv Shakti Mitra Mandal in that locality which 3 celebrate Shivaji Jayanti. P.W. 1 was the president of Jai Bhavani Mitra Mandal about a year prior to 1992 and the accused were members of Shiv Shakti Mitra Mandal. Accused No.3 Prakash Pednekar was the secretary of that Mandal. Accused No.3 Prakash was persuading P.W. 1 to join their Mandal which he declined. On 29th July, 1992 at about 7.30 hrs. when he was talking to one of his friends Shantaram Kakade at the BEST colony, all the four accused alighted from an auto near him. They chased him. P.W. 1 started running as Prakash came with a sword. Shridhar also had a sword. He wanted to assault P.W. 1 who ran away, when his father intervened and he was assaulted with a sword. Suresh and Rajesh were also armed with weapons. They injured his father while he ran shouting for help. He could not clearly state as to what type of weapons they were carrying. The accused after injuring his father ran away. The father was rushed to the hospital where he was declared dead. The prosecution story is then concluded by the Investigating Officer P.W. 11. He arrested accused No.1 Suresh Chavan and accused No.2 Rajesh Tawade on 30th July, 1992 and recorded a further statement of the complainant (P.W.1). The other accused 4 were also arrested on 31st July, 1992. Recoveries of the swords and of the clothes of accused Nos.3 and 4 were made by the disclosure statements of accused Nos.3 and 4 vide Exhibits 28, 28A, 26 and 26A respectively. Entries for these recoveries were duly made in the records vide Exhibits 33 and 33A. The injury report as well as the Postmortem report of the deceased was prepared vide Exhibit 37 by P.W. 10 Dr. Bagul. After completing the investigation and recording the statements of the Prosecution Witnesses, a charge-sheet was filed before the Learned Metropolitan Magistrate, 44th Court at Kurla who committed the accused to trial under Section 302 read with Section 34 of the Indian Penal Code before the Court of Sessions vide order dated 19th October, 1992. The accused stood the trial before Court. Statements under Section 313 were recorded. The accused opted not to lead any evidence in defence and they offered a complete denial to the incident. By his judgment dated 26th August, 2002 the Learned Additional Sessions Judge for Greater Mumbai found all the accused guilty of the offence with which they were charged and after hearing the accused on the quantum of sentence, awarded the following sentence to the accused : 5 “Accused No.1 Suresh @ Pappu Dagadu Chavan, accused No.2 Rajesh Vishnu Tawade, accused No.3 Prakash Tatu Pednekar and accused No.4 Shridhar Krishna Panchal are held guilty under Section 302 r/w. 34 of Indian Penal Code (IPC). They are sentenced to suffer imprisonment for life. The accused abovenamed are on bail in this case. Their bail bonds stand cancelled. They be taken in custody to serve out the sentence awarded. Muddemal property, being worthless, be destroyed after the appeal period is over.” 2. The legality and correctness of the judgment of the Learned Trial Court is challenged in the present appeal primarily on the following grounds : The judgment of the Trial Court is based upon conjectures and is not supported by direct evidence either in relation to the commission of the crime or the injuries suffered by the deceased. It is also argued that there is a serious contradiction between the statements of P.W.1- Kishore Patil, P.W.3 - Prabhakar Patil and P.W. 4 - Chandrakant Patil more particularly when seen in light of the fact that P.W. 2 – Vilas Gadkar had been declared hostile as he declined to support the case of the prosecution. Hence, it was urged that the 6 accused were entitled to the benefit of doubt and to consequential acquittal. 3. It is a settled rule of criminal jurisprudence that the prosecution must prove its case beyond reasonable doubt and it is the right of the accused even to maintain silence and not to offer any defence. These two settled canons, by development of law, have been expanded to coincide with the normal conduct of the human being that wherever the factors or the evidence indicate a doubt the accused is required to explain the doubts so created on him. The purpose of recording the statement under Section 313 of the Criminal Procedure Code is two fold. Firstly, it is to put to the accused all the material evidence which is on record and which he is expected to be aware of and /or meet in order to falsify the case of the prosecution. Secondly, it is an opportunity provided to the accused not only to explain the factors or the evidence stated against him if he so choses, but also to offer an explanation voluntarily. Where he refuses to offer any explanation or he offers an explanation insofar as it corroborates the case of the prosecution, the same is relevant and the Court can 7 take notice thereof. In the present case the accused have taken the plea of false implication implying that they were not present at the place of occurance, but they have opted not to explain where they were at the relevant point of time. It is the prime and foremost duty of the prosecution to prove its case and bring the guilt of the accused before the Court. Thus, we must proceed to examine whether the prosecution has been able to lead cogent and proper evidence to establish the guilt of the accused or not. 4. P.W.1 – Kishore Patil is the son of the deceased. He has been assaulted by four persons according to P.W. 1 – Kishore Patil, P.W.3 – Prabhakar Patil and P.W. 4 – Chandrakant L. Patil. Out of these four accused two viz. Prakash and Shridhar were carrying swords but the other two accused were carrying other weapons, which of course have not been identified by any of the eye witnesses. These witnesses have further stated that they had seen the deceased being assaulted by these four accused and thereafter, the accused ran away with the weapons. These weapons as already noticed, were recovered by recovery memos Exhibits 26 and 26A respectively. 8 It has been noticed by the Learned Trial Judge that the recovery memos, the postmortem report and record entries of Exhibits 33 and 33A were admitted by the accused as in compliance of the directions issued under Section 294 of the Criminal Procedure Code. The deceased was taken to the hospital where he was declared dead and the injuries on the body of the deceased have been noticed in the medical report and subsequently in the postmortem report Exhibit 37. P.W.10 - Dr. Pravin Bagul had proved these reports and he noticed as many as 22 injuries on the body of the deceased which were as under : “1) Abrasion over forehead (Lt.) side 20m x 1.5 cm reddish discoloration with subcutaneous hemorrhage. 2) Abrasion over (Lt.) side frontal region 3 cm x 1.5 cm Superficial. 3) Abrasion over (Lt.) side of hose 3.5 cm x 1cm with subcutaneous reaction. 4) Curve shape cut wound over (Lt.) side of face upto post occipital region with scalp avulation size 14 cm x 7 cm x deep with bone cut upto brain tissue exposed with ant. Lower portion with curve shape due over brain with irregular margin size 3 cm x 1.5 cm x deep 1.5 cm. 5) Cut over post aspect of ear curve shape 5 cm x 1.5 cm upto muscle with haemorrhagic patch. 9 6) Cut over (Rt.) side ear transverse 7.5 cm x 1 cm with ext. Pinnae cut deep 25 cm. 7) (Rt.) thumb cut transverse at 2 cm x 1.5 cm ant. Raw surface area terminal portion cut with nail absent. 8) Stab wound over upper abdomen centre 5.5. cm x above umbilicum and lateral size 2.5 cm x 2 cm x deep 11 cm with subcutaneous hemorrhage noted. 9) Stab wound over costal cartilage (Lt.) side 7 cm away from nipple below costal cartilage region size 3 cm x 1.8 cm x deep 7 cm. 10) Lacerated sharp edge wound 1.5 cm x 0.5 cm superficial above No.9. 11) Stab wound (Rt.) side below (Rt.) nipple 8.5 cm laterally ant. Axillary like size 4 cm x 1 cm x deep through post. Lateral aspect 10 cm ii) other wound laterally size 4 cmx 1.5 cm deep. 12) I/W post hape of neck oblique direction size 5 cm x 1.5 cm x deep 3 cm. 13) Stab wound post (Rt.) side para spinal region 1.5 cm x away laterally size 2.5 cm x 1 cm x deep 3 cm. 14) Lacerated wound (Rt.) side back away from mind line 11.5 cm size of wound 1 cm x 0.5 cm superficial. 15) Lipear abrasion over (Rt.) side post iliac crest region above 2.5 cm x oblique direction size 17 cm x 0.8 cm. 16) Linear abrasion oblique direction near post lumber (Rt.) back region size 18 cm x 0.2 cm. 17) Linear abrasion oblique direction (Lt.) side para spinal 10 region size 15 cm x 0.3 cm. 18) Transverse linear abrasion over (Rt.) side post aspect above scapular size 19 cm x 1 cm. 19) Oblique linear abrasion over (Rt.) side and upto mid line scapular and (Lt.) side size 17.cm x 1 cm at (Rt.) side and at centre 0.2 cm with tapering effect. 20) Oblique linear abrasion (Rt.) side costal cartilage region size 10 cm x 0.5 cm with reddish colour. 21) Transverse linear abrasion (Rt.) side below neck region 5 cm x 0.2 cm. 22) Oblique abrasion post neck mid line region upper border size 7 cm x 0.5 cm and red lower border of abrasion size 13 cm x 0.2 cm. 5. In his examination in chief P.W. 10 – Dr. Bagul clearly stated that injuries 5, 8, 9, 11, 12 and 13 were sufficient in the ordinary course of nature to cause death and the cause of death was stated to be 'multiple injuries with multiple stab injuries with internal organs, injuries with cut skull with brain injuries with internal hemorrhage due to sharp edged weapon heavy type sharp edge weapon in case of assault'. The cumulative effect of evidence of 11 P.W.1 – Kishore Patil, P.W.3 – Prabhakar Patil, P.W.4 – Chandrakant Patil, P.W.8 – Pradip Kadam, P.W. 9 – Arun Ghag, P.W. 10 – Dr. Pravin Bagul and P.W. 11 – Bhau Amrutsagar provides complete link to the story of the prosecution. All the four accused were noticed at the place of occurance independently by these witnesses and were duly identified in the Court. It is a matter to be noticed that in the cross examination conducted by the accused not even a suggestion was made that they were actually not present at the place of occurance. The cross examination of these three witnesses as well as the Investigating Officer is indicative of the fact that the accused hardly made an attempt to falsify the case of the prosecution. No suggestion was made that the injuries caused upon the person of the deceased could not be caused either by a sword or by any other weapon or were a result of some other accidental event. We have already observed that though the statement under Section 313 can never be a foundation of conviction but it can always be treated as a relevant factor where the case of the prosecution is otherwise proved. If the accused were taking up a plea of false implication, it was expected of them to explain their whereabouts at the relevant point of 12 time. Another very important factor which cannot be ignored by the Court is that the clothes recovered in furtherance to the statement made by accused Nos.3 and 4 contained bloodstains which upon chemical analysis were found to be human bloodstains. The accused chose not to offer any explanation of how human blood came on their clothes particularly in the light of the fact that recovery of these clothes was admitted and the recovery memos were not questioned by the accused. The chain of events as stated by the prosecution has been clearly established and there is hardly any scope for this Court to interfere in the order of conviction and sentence passed by the trial Court. 6. Counsel appearing for the Appellants placed great emphasis on the contention that P.W. 1 could not be relied upon as he was the son of the deceased and an interested witness. This argument, in our view, is fallacious where a father has been assaulted by swords in presence of his son. There is no reason why the statement of the son cannot be treated as that of a normal witness. There is hardly any occasion for the Court to treat such a statement 13 as the statement of an interested witness who is trying to falsely implicate the accused. The fact of the matter remains that Atmaram – the father of the complainant died as a result of injuries caused by sword and other weapons. An attempt was also made to find a loop hole in the case of the prosecution on the other ground that there are some contradictions in the statements of P.W. 1 – Kishore Patil, P.W. 3 – Prabhakar Patil and P.W. 4 – Chandrakant Patil and nobody had identified the weapons in the hands of the other accused. This argument is again of no help to the Appellants, inasmuch as the incident occurred in the year 1992 and the witnesses were examined before the Court in the year 2002, that is, after the lapse of nearly ten years. It is neither unknown nor humanly incorrect to say that the memory of the witness is likely to fade by passage of time and such a possibility cannot be ruled out. There is no material contradiction brought to our notice except the fact that P.W. 2 falsifies the statement of the other three witnesses. P.W. 2 – Vilas Gadkar had resiled from his statement though in his cross examination conducted by the prosecutor he admitted that his statements have been correctly recorded in Marathi and were read over to him. We would attach 14 some importance to the statements of P.W. 3 – Prabhakar Patil and P.W. 4 – Chandrakant Patil including P.W. 1 – Kishore Patil who have fairly stated that they were not able to identify the weapons which other two accused i.e. accused Nos.1 and 2 were carrying. This hardly is a contradiction. In fact, it shows the bonafide intent of these witnesses to place correct things before the Court. When four persons are assaulting one individual it will obviously be very difficult for the witnesses within that short period to identify the weapons and the injury attributable to each of the accused. The swords being most prominent in the attack were duly noticed by these witnesses and they so stated in their statements. These swords were duly recovered on the disclosure statement of accused Nos.3 and 4. This provides a complete chain. The recovery memos were duly proved by P.W. 6 and P.W. 7. However, P.W. 6 also attempted to resile from his statement. But in view of the fact that certain documents connected to the recovery were admitted by the accused in terms of Section 294 of the Code, the resiling of statement by P.W. 6 loses all significance. The Trial Court in the impugned judgment noticed the fact that there was no explanation about the bloodstained clothes which admittedly 15 belonged to the accused. The mere fact that there were not many people whom the police officers could invite to join the investigation as eye witnesses is correctly noticed and rejected by the Trial Court as while referring to the statement of P.W. 1 it has come on record that there is only one shop of Chavan, a blacksmith, which is open till 23.30 hrs. and except this shop there is no other shop or there are no houses near the spot in question. The mere fact that the prosecution chose not to examine Shantaram Kakade may be an error but certainly not a factor which will disprove the case of the prosecution. It is not a case where there is no sufficient evidence to establish the commission of the crime or that the prosecution has intentionally dropped a witness who if produced before the Court could state the truth which would tilt the balance in favour of the accused. Even if the prosecution opted not to examine this witness, it was open for the accused to summon the said witness if they thought that he could give evidence which will be favourable to them. Non-examination of this witness in our opinion has not in way displaced the case of the prosecution. 16 7. It was also argued that there was no motive to kill the deceased. The mere absence of proof of specific motive per se would neither be a ground for acquittal of accused or for taking a lenient view. There were two Mandals and it has come in evidence that P.W. 1 was an office bearer of one Mandal while accused No.3 was an office bearer of the other Mandal and he wanted P.W. 1 to join the Mandal which was declined. Thus, there was some irritation or annoyance between the parties that primarily remained between P.W. 1 and accused No.3. 8. We do find some substance in the submissions made on behalf of the Appellants that though the accused have been charged for an offence under Section 302 read with 34 of the Indian Penal Code, the prosecution has not been able to establish the guilt beyond reasonable doubt for that offence. As stated by P.W. 1, Prakash had come with a sword and wanted to assault P.W. 1. However, because his father intervened, the father got assaulted with a sword on his head. According to this witness, Shridhar also gave a blow of a sword on his father's back whereafter the accused ran away. Similarly P.W. 17 3 – Prabhakar Patil stated that he saw his uncle Atmaram being assaulted by long weapons and he new the accused by face. According to P.W. 4 – Chandrakant Patil, he knew the accused and when he had gone to meet his uncle Atmaram along with P.W. 3 he found a crowd gathered near Lakme Company and the accused were assaulting Atmaram and after assaulting him they ran away. None of these witnesses have stated that the accused had come there with the intention of killing Atmaram. Intention to kill is a condition precedent to sustaining a charge under Section 302. Merely causing an injury with the knowledge that such an injury may result in the death of a person not intended to be assaulted would not attract the offence under Section 302. The intention to cause death must be gathered from direct evidence or the attendant circumstances which provide a complete chain of events to the case of the prosecution. We have already noticed that there was no animosity between the deceased Atmaram and the accused. They had not come to assault Atmaram. Atmaram incidentally intervened and was assaulted by the accused. 18 9. On a collective reading of the documentary as well as oral evidence including the expert's evidence a case for an offence under Section 304 Part II has been made out inasmuch as the accused had no intention to kill the deceased. Even if the story of the prosecution is taken to be correct, the intention was to kill P.W. 1 and not the father of P.W. 1 – Kishore Patil. The father of P.W. 1 incidently appeared on the scene and attempted to stop the assault by all the four accused and in the process he suffered injuries which were given by all the four accused by using sword and other weapons. In terms of Section 304 Part II the punishment provided is imprisonment to the extent of a term of ten years or with fine or with both if the act is done with the knowledge that it is likely to cause death but without the intention to cause death or to cause such bodily injury as is likely to cause death. It is not even the statement of any of the witnesses that the four accused had come with the intention to kill the deceased. It was primarily a tussle between two youngsters which finally resulted in the loss of the life of the father of P.W. 1. Having heard the learned counsel appearing for the parties and taking the cumulative effect of the entire evidence on the record, we are of the 19 view that the offence for which the accused are liable to held guilty is Section 304 Part II and not 302 of the Indian Penal Code. 10. We have heard learned counsel appearing for the parties on the quantum of sentence as well. Keeping in view that Atmaram was an aged person and the accused inflicted a number of injuries on the person of the deceased by different weapons including swords, the conduct of the accused, therefore, does not deserve to be dealt with leniently and they ought to be awarded harsh punishment as contemplated under the penal statute. The number of injuries caused by the accused, that too unprovoked, does show that the accused committed the crime mindful of the consequences and in a ruthless manner. The evidence shows that all the accused were together and committed the offence in furtherance of a common intention. The injuries on the person of the deceased were caused by swords and by other weapons. The eye witnesses have shown the presence of all the four accused at the place of the occurrence with the common intention of causing hurt. Thus each one of them is guilty of the same offence