1 Cri.AppealNo.319/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.319/2010 1) Manika s/o Purbhaji Urade Age:58 Yrs., occu.Agril. 2) Ashok s/o Manika Urade Age:38 Yrs., ocu.Agril. 3) Nitin s/o Manika Urade Age: 33 Yrs., occu.Agril. 4) Raju s/o Manika Urade Age: 27 Yrs., occu.Agril. All R/o Dagadgaon, Tq.Loha, District Nanded. = APPELLANTS (orig.Accused Nos. 1 to 4) VERSUS 1) The State of Maharashtra = RESPONDENT Mr.PV Mandlik, Sr. Counsel, h/for Mr. AM Gaikwad, Advocate for Appellants; Mrs.SD Shelke, APP for Respondent/State ----- 2 Cri.AppealNo.319/2010 CORAM : A.H.JOSHI & A.R.JOSHI,JJ. Date of Reserving Judgment : 9 th September, 2011. Date of Pronouncing Judgment: 15 th September, 2011. JUDGMENT (PER:- A.R.JOSHI,J.) 1) Heard rival submissions at length on this appeal preferred by all the appellants/original accused Nos.1 to 4, challenging the judgment and order of conviction dated 23rd July, 2010 passed by the Ad hoc Additional Sessions Judge, Kandhar district Nanded. 2) The impugned judgment and order was passed in Sessions Case No.17/2007, wherein all the four accused were charged for committing offence of murder of one Bhimrao Jamale in the morning of 2nd February, 2007 by using the weapons, like "Kattis" and wooden sticks and in furtherance of common intention of all the accused. The accused were also charged for the offences punishable under Sections 323 and 324 of IPC for causing injuries to PW No.1 – Sarubai wife of the victim and causing hurt to PW No.9 – Baby, married daughter of the victim. 3) All the four accused were convicted for 3 Cri.AppealNo.319/2010 the offences punishable under Sections 302, 323, 324 r/w Section 34 of the Indian Penal Code, however, were acquitted for the offence punishable under Section 504 r/w Section 34 of IPC and under Sections 4 and 25 of the Arms Act. 4) There is no appeal preferred by the State of Maharashtra against acquittal for the relevant offences. All the accused challenged their convictions for the relevant offences as mentioned above in the present appeal. 5) The case of the prosecution, in nutshell, is as under:- (i) Victim – Bhimrao and his wife and son Balaji were residing at village Dagadgaon. His elder daughter – Baby was married and residing in the same village. (ii) Since year 2002, there was boundary dispute between the victim and accused No.1 – Manika. As such, there was rather enmity between the victim, on one part, and all the accused on the other part. Accused Nos.2 to 4 are the sons of accused No.1. (iii) On the relevant morning on 2nd February, 2007, victim along with his wife had been to his 4 Cri.AppealNo.319/2010 field for protecting the standing crops from the birds. It was about 7.00 a.m. when they reached the field and started doing work, all the accused persons alleged to have arrived on the spot from the adjoining field. Accused Nos.1 and 4 were armed with sticks while accused Nos.2 and 3 were having Kattis/sickle. They all assaulted the victim on his head and other parts of the body, thus causing severe bleeding injuries. (iv) Wife of the victim one Smt. Sarubai – PW No.1, witnessed the incident, as she, at the relevant time, was working at some distance. She came to the rescue of her husband and in that process, she was also assaulted by means of sticks and Kattis. She received injuries to her hands when she tried to intervene. (v) Apparently, said incident was also witnessed by PW No.10 – Balaji, a young boy of 15 years, son of the victim and Sarubai. He noticed the incident from some distance and became frightened and ran towards house of his married sister – Baby PW No.9. He informed his sister and her husband regarding the assault at the hands of the accused on his parents. Baby ran towards the spot and noticed her father and mother in injured condition lying there. 5 Cri.AppealNo.319/2010 (vi) In the meantime, Balaji – PW No.10 brought a motor jeep. He was accompanied by one Limbaji PW No.11 and one Kamaji PW No.12, husband of PW No.9 – Baby. In the jeep, injured Bhimrao was taken. Sarubai was also helped to climb the jeep as she had also sustained injuries to her hands and other parts of the body. (vii) Initially, the jeep was taken to Sonkhed police station and after briefly informing the police regarding the incident, on their direction, the jeep was taken to Government Hospital at Nanded for immediate treatment to the seriously injured victim – Bhimrao. (viii) An intimation was sent to Vazirabad police station, Nanded regarding admission of the complainant and her husband Bhimrao in hospital. (ix) Both the injured were examined. On examination, Bhimrao was declared dead. Information was sent to P.I. Sonkhed police station about death of Bhimrao. As such, police persons arrived at the hospital and after ascertaining the condition of Sarubai PW No.1, her statement was recorded by the police at about 2.00 p.m. In the said complaint, she narrated detailed incidence as witnessed by her. She took names of all the four accused as the assailants 6 Cri.AppealNo.319/2010 and as to the weapons used by them in the commission of offence. Said F.I.R. (Exhibit-40) was recorded by the officer and investigation was started. (x) Dead body of victim Bhimrao was sent for post mortem. Blood-stained clothes of victim Bhimrao and his wife Saribai were taken charge of. Spot panchanama was drawn. All the four accused were put under arrest on the ame day, i.e. On 2nd February, 2007. (xi) During the course of investigation, clothes of the accused pesons were taken charge of. There were recoveries at the instance of accused persons inasmuch as Katti was recovered on 3rd February, 2007 at the instance of accused No.3 – Nitin and it was seized in presence of two panch witnesses – PW No.2 – Gani and PW No.5 – Ganesh Pande. At the instance of accused No.1, one stick was recovered to which PW No.3 – Murlidhar acted as panch. (xii) On the next day, i.e. on 4th February, 2007, another Katti was recovered at the instance of accused No.2–Ashok and one stick was recovered at the instance of accused No.4 – Raju. In the said seizure panchanamas, PW No.7 – Mahadeo acted as panch witness. 7 Cri.AppealNo.319/2010 (xiii) During investigation statements of various witnesses were recorded including the statement of PW Nos.9, 10 and 12, who had partly witnessed the circumstances and out of them, allegedly, PW No.9 and PW No.10 witnessed part of the incident as to assault on the victim. Statement of PW No.10 – Balaji and PW No.12 – Kamaji were recorded on the same day of the incident, i.e. On 2nd February, 2007; whereas statement of PW No.9 – Baby, married daughter of the vitim, was recorded on 4th February, 2007. As such, the date of recording of each statements is of much significance as recording of statements is in the immediate proximity of the incident. (xiv) All the seized artices, including clothes of the victim and complainant and clothes of the accused and the weapons and the articles gathered from the spot, were sent to chemical analysis and C.A. Report was obtained. On completion of investigation, charge sheet was filed and case was committed to the Court of Sessions and it ended in the conviction for the major offence punishable under Section 302 of IPC against the appellants/accused, leading to the present appeal. 6) During the arguments, main thrust was 8 Cri.AppealNo.319/2010 placed by Mr.Mandlik, learned Sr. Counsel appearing for the appellants/accused, on the following points:- (i) The case of prosecution is mainly based on direct evidence of PW No.1 – Sarubai. However, her complaint was recorded belatedly after about 7 hours and there are various omissions and contradictions in her statement, rendering it unworthy of acceptance; (ii) The alleged eye-witnesses PW No.9 and PW No.10 – children of the victim, are not trustworthy and, in fact, they had not witnessed the incident of assault and as such, their testimonies cannot be taken as supportive to the case of the prosecution as corroboration to the testimony of PW No.1. (iii) All the witnesses, who allegedly seen the incident, are interested witnesses and as such, their testimonies cannot be relied on in the absence of any independent witness though there was possibility of such other witnesses coming forward, considering the time and place of the incident. (iv) Recovery of weapons is not established against the accused persons. 9 Cri.AppealNo.319/2010 (v) There is no motive for murder of the victim and for causing injuries to PW No.1 – Sarubai. 7) In the light of above case of prosecution and the points of defence raised on behalf of the appellants/accused, certain important circumstances can be mentioned as under :- (a) The prosecution has examined in all 14 witnesses. However, out of them, PW No.1 – Sarubai; PW No.9 – Baby; PW No.10 – Balaji and PW No.12 – Kamaji are the important witnesses so far as the main core of the case as to the assault on the victim and on Sarubai at the hands of the accused persons, is concerned. (b) PW No.6 is Dr.Balaji Ganpatrao Manurkar, who examined PW No.1 – Sarubai when admitted in the Civil Hospital, Nanded. He observed following injuries sustained by PW No.1 – Sarubai. "1) Contusion measuring 5 x 5 cm on right cheek below eye; 2) A contusion measuring 4 cm x cm on right side of forehead; 3) A contusion measuring 3 cm 3 cm on right eye; 10 Cri.AppealNo.319/2010 4) A contused lacerated wound 3 cm x 1 cm x 1 cm over right forearm; 5) An abrasion measuring 2 cm x 2 cm over right forearm; 6) A contusion measuring 2.5 cm x 3 cm over middle part of the back; 7) A contusion measuring 15 cm x 10 cm over right thigh posterior lateral aspect; 8) An incised wound measuring 3 cm x 1 cm x 1/1 cm over right leg middle 1/3rd part, anterior aspect; 9) An incised wound measuring 1 cm x ½ cm x ½ cm over left third finger of 1 hand; 10) An incised wound measuring 1 cm x ½ cm x ½ cm over left four finger of hand." . According to this witness, though the injuries were simple in nature, they were caused within six hours before examination and were caused by hard and blunt object; and injuries Nos.1 to 7 were caused by hard and blunt object and injuries Nos.8, 9 and 10 by sharp weapon and those were possible by blow from Katti. (c) PW No.14 is Doctor Suryakant Lonikar, who conducted post mortem on dead body of the victim Bhimrao. He noticed 17 external injuries, as under :- 11 Cri.AppealNo.319/2010 1) Incised wound over middle area of scalp adm. 4 cms. X 2.1/2 cm by bone deep; 2) Incised wound 5.1/2 cms x 3 cms into bone deep over occipital area; 3) Stab wound on right mala region of face measuring ½ cm x 1 cm; 4) Contusion over right arm posteriorly middle 1/3 measuring 3 cms x 2 cms; 5) Contusion posteriorly on lower 1/3rd measuring 3 cms x 2 cms. 6) Contusions on interior region of shoulder measuring 3 cms x 2 cms and 3 cms x 2 cms. 7) Fractured to right radius to Ulna, lower 1/3rd. 8) Fracture of proximal phalanges of right hand five finger; 9) Contusion on dorsum of hand measuring 3 cms x 2 cms. 10) Contusion over right side of scapular region 6 cms x 2 cms, 5 cms x 2 cms, 3 cms x 2 cms, 2 cms x 2 cms in vertical and horizontal direction; 11) Contusion infra-scapular region mesuring 5 cms x 2 cms, 5 cms x 2 cms, and 4 cms x 2 cms. 12) Contusion on right buttock measuring 5 cms x 3 cms, 3 cms x 3 cms, 4 cms x 2 cms, 3 cms x 5 cms, 5 cms x 2 cms, vertically and horizontally placed 3 cms x 2 cms, 4 cms x 2 cms, 4 cms x 2 cms, 4 cms x 2 cms, 3 cms x 2 cms. 12 Cri.AppealNo.319/2010 13) Contusion over left arm measuring 2 cms x 2 cms. 14) Stab wound to Lt. fore-arm upper 1/3rd below the elbow measuring 2 cms x ½ cm. 15) Contusion over left thigh, fronts side middle 1/3rd measuring 5 cms x 3 cms, stab wound left 1/3rd of left leg measuring 2 cms x 1 cm. 16) Fracture to ribs of left side II nd VIII in middle 3rd region; and 17) Fracture of ribs or right side from II nd to VII." (d) On external examination, he noticed fracture of middle area of scalp. Opinion of probable cause of death was given as "cardio respiratory failure due to hemorrhagic neurogenic shock with head injury with subdural hemorrhage" and all the injuries were ante mortem and he further opined that injuries Nos.1 to 3 and 14 were possible by Katti; whereas injuries Nos.4 to 13 were possible by stick and injuries Nos.15 to 17 were possible by stick blows. 8) Bearing in mind the above position and the substantive evidence of main prosecution witnesses mentioned above including the evidence of Medical Officers, submissions advanced on behalf of the appellants/accused, are required to 13 Cri.AppealNo.319/2010 be scrutinized. In doing so, we have gone through the reasoning given by the learned Sessions Judge while appreciating the evidence of recovery of various articles at the instance of the accused persons. It appears that much emphasis was given by the Trial Court on the testimony of the complainant – PW No.1, her children PW Nos.9 & 10 and her son-in-law PW No. 12. It also appears that learned Sessions Judge had raised doubt as to recoveries at the instance of the accused persons and as to finding of blood on the clothes of the accused and as to its grouping. As such, considering case of the prosecution and the reasoning given by the learned Sessins Judge, it would suffice if the substantive evidence of the eye-witnesses is construed in order to see whether prosecution has proved the guilt of the accused persons beyond reasonable doubt. 9) In view of the above, firstly coming to the substantive evidence of PW No.1 vis-a-vis the arguments advanced on behalf of the appellants/accused, it must be mentioned that delay in filing the F.I.R. is not always fatal. What is important is, whether there is any explanation for such apparent delayed information to the police as to the commission of cognizable offence. Moreover, it would be a 14 Cri.AppealNo.319/2010 question whether particular time-gap, in between the commission of offence and reporting it to the police, is a delay or not. In that view of the matter, in the instant case, though there is apparent delay in lodging of the F.I.R. at about 2.00 p.m., when the incident had occurred on 7.00 a.m. on 2nd February, 2007, considering the peculiar circumstances and the trauma, in which the first informant – PW No.1. undergone, such delay is insignificant and, in fact, not fatal to the case of the prosecution and on this count, learned Sessions Judge had rightly dealt with this aspect. 10) The injuries sustained by PW No.1 while defending during the assault on her husband by the appellants/accused, definitely show the presence of PW No.1 on the spot of occurrence. On this aspect, we have observed that during the cross-examination of the prosecution witnesses, a suggestion has been given on behalf of the accused that those injuries are self-inflicted by PW No.1 – Sarubai after she knew regarding the assault on her husband. Considering the nature of injuries and the substantive evidence of PW Nos.9, 10, 11 and 12, this defence cannot even be acceptable on preponderance of probabilities. This is more so, when there is a categorical statement made by PW No.9 – Baby as to witnessing 15 Cri.AppealNo.319/2010 the incident of assault on her mother. She did not mention anything regarding assault on her father at the instance of the accused persons. This might be probably due to the reason that only part of the incident was witnessed by her. This further negate the case of the appellants that she is a tutored witness and she had given false statement. Had it been the case, as suggested by the defence, there was no impediment for PW No.9 not to implead the accused persons and put authorship on them regarding assault on her father. But, she has not done so and only deposed as to she witnessing the assault on her mother. Moreover, her presence has been corroborated by PW No.10 – Balaji, young aged boy of the victim and Sarubai, as to he witnessing the incident of assault on the spot and then rushing to the house of his sister – PW No.9. His evidence is corroborated by evidence of PW No.12 – Kamaji – husband of PW No.9, who accompanied PW No.10 to the spot along with the jeep and this part of evidence, as to taking the jeep to the spot for taking the victim and PW No. 1 to the police station and to the hospital, is corroborated by PW No.11 – Limbaji. 11) In considering the substantive evidence of above referred witnesses as authentic and mainly the evidence of PW No.1 – Sarubai, being 16 Cri.AppealNo.319/2010 the natural witness, we are not oblivious of certain omissions brought on record on behalf of the accused during cross-examination of PW No.1 – Sarubai. These omissions can be narrated, in nutshell, as under :- (i) Omission on account of inflicting blows on which parts of the body of the victim given by which accused. (ii) As to invisible injuries on the person of PW No.1 – Sarubai. (iii) Injury to the right hand of the victim and fracture to the wrist of the victim. (iv) Coming of Balaji – PW No.10 and witnessing the incident from long distance. (v) Narration by PW No.9 – Baby that she came to the spot as told by Balaji. (vi) As to threat given by all the four accused to PW No. 09 – Baby; (vii) Incident as to bringing of the jeep and the victim taken in the jeep from the spot and as to Police Patil also travelled in the jeep and all the persons first went to the police station and then on intimation by the police, went to the hospital; 12) Though the aforesaid omissions are brought on record, in our considered view, the basic core of the case of prosecution as to 17 Cri.AppealNo.319/2010 whether PW No.1 witnessed the incident of assault, has not in any way been shaken and in that event, it cannot be held that the learned Sessions Judge has erred in accepting the evidence of PW No.1 as trustworthy. 13) Another defence raised on behal of the appellants/accused is that there was possibility of some other persons indulging in the assault on the victim as the victim had rivals in same village and this was out of some personal matrimonial relations and other personal relations interse between children of first wife of the victim and the children of his second wife – Sarubai PW No.1. Again considering the substantive evidence of PW No.1 – Sarubai, corroborated by PW Nos.9, 10, 11 and 12, such defence also cannot be accepted even on preponderance of probabilities. 14) So far as argument as to no apparent motive to do away with the victim is concerned, it is an admitted position that there was a civil dispute between the parties over the agricultural land boundary. Otherwise also, in view of the direct testimony of PW No.1 – Sarubai and all other witnesses, presence or absence of motive may not be a determining factor in the present case. 18 Cri.AppealNo.319/2010 15) Considering the above analysis, in our view, there is nothing to interfere with the impugned judgment and order as to involvement of the appellants/accused in the offence of murder. Consequently, there is no merit in the appeal and the same is disposed of with following order. ORDER Criminal Appeal No.319/2010 stands dismissed. sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ fldr.12.9.11 Authentic copy (BD VADNERE,PS)