1 Cri. Appeal 132.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 132 OF 2007 Ashok S/o Jivnaji Shirale Age : 37 years, Occu.: Jeep Driver, R/o Phulkalas, Tq. Purna, District : Parbhani ... Appellant V E R S U S The State of Maharashtra Through Police Station, Tadkalas, Tq. and Dist. Parbhani, (Copy to be served on Public Prosecutor, High Court, Bombay, Bench at Aurangabad) ... Respondent ... Mrs. S.S. Jadhav, Advocate for the Appellant Mr. K.G. Patil, A.P.P. for the respondent-State Mr. V.M. Maney, Advocate for Assist to A.P.P. as per Court's order dated 28.6.2007 ... CORAM : P.V.HARDAS AND A.V.NIRGUDE,JJ DATED : 11TH NOVEMBER, 2009 JUDGMENT (PER : A.V. NIRGUDE, J.) 1] This appeal is filed against the judgment and order passed by the learned Adhoc Additional Sessions Judge-I, Parbhani dated 29.3.2007 in Sessions Case No. 68 of 2005 convicting and sentencing the appellant, amongst five accused under section 302 and 307 of the Indian Penal Code. The appellant has been sentenced to suffer 2 Cri. Appeal 132.2007 imprisonment for life and to pay fine of Rs.3000/- with default stipulation for offence punishable under section 302 and rigorous imprisonment for 7 years and to pay fine of Rs.2000/- with default stipulation for the offence punishable under section 307 of the Indian Penal Code. The learned Judge of the trial Court made both the substantive sentences run concurrently. 2] The facts leading to the prosecution can be narrated in short as under:- . It is common ground that the appellant- accused and others formed a group which was inimical to the group of which the complainant, the deceased in this case, and others were members. In the year 1998, the original accused Jivnaji had lodged complaint against the present complainant Laxman and others that they had committed murder of his son Khushal. On account of such complaint, the complainant Laxman, his brothers and his nephews totaling to 11 persons were arrested and were tried in a murder case. Some of them were even convicted for the offence punishable under section 302 of the Indian Penal Code. In the year 2000, it was the turn of the group of the complainant Laxman to lodge a complaint against the opposite group. This was a violent incident in which above mentioned Jivnaji and several others faced a Sessions trial for offence punishable under section 307 etc. I.P.C. Eventually they were acquitted. In this history 3 Cri. Appeal 132.2007 of strong enmity between the parties the following facts are required to be appreciated:- . The incident took place on 6.3.2005. The Complainant Laxman and his brother Maruti at about 5:00 pm., were riding their motorcycle and were returning from village Phulkalas towards Parbhani. At around 5:15 pm. when they reached near main canal situated at the western side of village Tadkalas, a white colour Marshal jeep belonging to the original accused Jivnaji overtook them. The appellant was the driver of the vehicle. The other accused were sitting with him in the vehicle. After driving the jeep for some distance ahead of the motorcycle, it is alleged, the appellant turned his vehicle around and drove it towards the complainant's motorcycle in such a way that the complainant realised that he had intention to kill him and his pillion rider Maruti. Before he could take an evasive action, the jeep struck him head on. The jeep then went ahead without stopping, dragging the motorcycle and the riders on it forward. The motorcycle got stuck in the front portion of the jeep and both the vehicles ultimately stopped at about 50 feet on the right side off the road. Both the riders of the motorcycle sustained injuries. The complainant Laxman survived, but his brother succumbed to the injuries. Immediately after the incident, the appellant rushed to Tadkalas Police Station at about 5:45 pm. and informed about the incident to the Police saying that it was an 4 Cri. Appeal 132.2007 accident and that there were two injured persons. Within a short time in an auto-rickshaw both the injured persons were brought to the Police Station and the Police sent them to the Civil Hospital, Parbhani for treatment. The Police recorded statement of Laxman and treated it as complaint and on the basis of which C.R. no. 17 of 2005 was registered for offence punishable under section 302, 307, 147, 148, 149 of the I.P.C. As said above, the appellant and 4 others were arrested in the case. The Police conducted investigation and sent the chargesheet. 3] At the time of trial, the prosecution recorded deposition of 13 witnesses to prove their case. The learned Judge of the trial Court acquitted all the accused including the appellant from the charge under section 147 I.P.C. holding that there was no unlawful assembly formed by the accused. The learned Judge also acquitted the accused nos. 2 to 5 for the offences punishable under section 302 and 307 r/w. section 149 of the Indian Penal Code and held that the appellant alone who was driving the offending vehicle, was liable to be convicted under the above mentioned sections of the I.P.C. As seen above, the appellant and other accused did not deny that there occurred an encounter between the two vehicles which the parties were travelling. Simple defence that the appellant and other accused took was that it was an accident and that 5 Cri. Appeal 132.2007 the appellant accidentally struck the motorcycle of the complainant while trying to overtake him. In other words, the appellant is denying that he went ahead of the motorcycle overtaking the same, turned around and then came rushing towards the complainant's motorcycle to hit it head on. Even the learned counsel for the appellant tried to convince us that it was a case of accident and not an intentional act. 4] The prosecution heavily depended on the deposition of the prosecution witness no.1 Laxman, the complainant, the scene of offence panchanama exhibit 37, the Map of the scene of offence exhibit 35, the Medical Officers, who attended the injured and the deceased and the eye witness P.W. 12 Keshav. Since the incident took place almost at broad day light at a public place, the prosecution also depended on P.W. 6, 7 and 8 who they claim to be eye witnesses to the incident but unfortunately, these three witnesses turned hostile and did not support the prosecution case. So, with the help of the testimonies of P.W.1 Laxman-complainant, P.W.3 Sangram the panch for proving the spot panchanama exhibit 37 and the eye witness P.W. 12, we should venture to draw our inference. As said above, Laxman narrated the incident in the manner in which we have narrated the facts of the case above. P.W. 12 in addition to it said that at the time of the incident, he was present 6 Cri. Appeal 132.2007 at his agricultural field which is located at Tadkalas Limla road which is also situated at a distance of 1 Km. from village Phulkalas. He said it was Sunday and on that day he, his brother Kundlik and his nephew Kishan were present at their agricultural field. At that time the complainant and deceased Maruti, his uncles came to them from Parbhani riding the motorcycle and carrying the seeds for sowing. He said after handing over the seeds to them his uncles went towards their residential house located at village Phulkalas riding their motorcycle. At about 5:00 pm., he said, both of his uncles were seen riding their motorcycle towards Parbhani. He said when they reached near their agricultural field they informed him and others that they were going towards Parbhani. This witness further stated that he noticed the offending white colour Marshal jeep also following the motorcycle towards Parbhani. This witness said that when the jeep reached near his agricultural field, the driver- the appellant- slowed it down and threatened them shouting that they should then see as to what he would do to their 'people'. He said he and his companions standing in the agricultural field thereafter watched the jeep speeding towards Parbhani. He said, he saw the jeep overtaking the motorcycle of his uncles. He also said, he then saw the jeep turned around and came back towards his uncles' motorcycle. He said, he then saw, the appellant dashed his vehicle on the motorcycle, 7 Cri. Appeal 132.2007 dragged and pushed them with his vehicle, dragging them further. He said, he and his companions Kundlik and Kishan seeing this, rushed towards the spot. He said, the occupants of the jeep left the jeep and ran towards village Tadkalas. He said, he saw his uncles lying in injured condition. He said, he saw that the head lamp of the motorcycle was broken and the motorcycle was found entangled with the frond side fender of the jeep. He said he and others then shifted both his uncles in an auto-rickshaw towards Tadkalas Police Station. 5] As indicated above, the main question that is required to be answered in this case is whether the encounter of the vehicles was an accident or an intentional act? 6] Mrs. Jadhav learned counsel appearing for the appellant tried to contend that it was only an accident and she placed reliance on certain facts to support her view. She brought to our notice the contents of the so called dying declaration of the complainant. It so happened and the complainant, prosecution witness no.1, admitted that after he was taken to the hospital at Parbhani, during that evening, at about 10:20 pm. the Taluka Executive Magistrate recorded his statement. This witness was shown this statement and he admitted its contents. The cross-examiner of the defence brought to his notice the contents of certain portion which was marked as "A". The 8 Cri. Appeal 132.2007 portion marked "A" indicates that P.W.1 Laxman had narrated the incident in a little different manner in as much as he said that the appellant had come from his behind when he was riding his motorcycle towards Parbhani and dashed his vehicle to his motorcycle. This witness however, denied the correctness of this statement. Mrs. Jadhav tried to take advantage of this variance and asserted that since the portion marked "A" is part of the earlier statement and since this was recorded immediately after the complaint and having regard to the fact that this was narrated to an independent person, the prosecution case which alleges that the appellant overtook the motorcycle, turned around and then came from front etc., should not be believed. . However, we are unable to accept this submission. The scene of offence panchanama exhibit 37, map of scene of offence exhibit 35 and the photographs exhibit 57 to 68 amply clarify that the the argument of Mrs. Jadhav, is incorrect. The first circumstance to negate Mrs. Jadhav's contention is the fact that the front light of the motorcycle and the front wheel of the motorcycle were found completely damaged. This indicates that the front portion of the motorcycle had come in contact with the opposite side vehicle at the time of collision. Had the motorcycle been pushed from behind, the backside of the motorcycle would have suffered an impact which has not happened in this case. The map and the 9 Cri. Appeal 132.2007 photographs clearly establish that the appellant's vehicle had come from the East side [Parbhani side] on the road which was running East-West. Both the vehicles in entangled condition were found at about 50 ft. off the road on North side near a small ditch/pond [which was the right side for the appellant's vehicle. The jeep was seen heading towards North and West, which clearly indicated that the vehicle was being driven towards West side and came from Parbhani side. The motorcycle was found entangled in the front side of the jeep in such a manner that it's handle [front side] was heading towards North. The manner in which the vehicles were found on the spot, gives a picture and supports the case of the complainant Laxman that the jeep after striking his motorcycle from front side, came in contact with the right side of the motorcycle. It is also clear that the impact of both the vehicles was such that the right side of the body of the complainant suffered the impact severely. His injury certificate clearly proves this. It is seen from the medical certificate that the complainant Laxman suffered extensive injuries to the right side of his body. The photographs also indicate that the incident took place at broad day light on the tar surfaced public road which could have accommodated these two vehicles coming from opposite sides. The appellant's vehicle could have easily gone ahead without coming in contact with the motorcycle of the complainant. It not 10 Cri. Appeal 132.2007 only came in contact with the motorcycle head on, but it swerved towards the right without stopping and went 50 ft. away, in the direction in which the appellant drove his vehicle, is clearly established from the scene of offence panchanama, scene of offence map and the photographs. The manner in which the appellant had driven his motorcycle, clearly indicated that he intended to give dash to the motorcycle of the complainant. It is clear that even after the impact between the vehicles, the appellant did not apply brake to his vehicle, else it would have stopped near the tar road. It went ahead as said above, for about 50 ft. off the road. The vehicle of the appellant probably stopped because of the resistance the entangled motorcycle offered to it. This further indicates that till last, the appellant did not apply brake of the vehicle. There is no doubt in our mind that this act was not an accident or an incident of rash and negligent driving but an intentional act of attack. . Version of the complainant as said above, is fully supported by P.W. 12 but Mrs. Jadhav is rather skeptical about the probative value of the evidence of P.W. 12 on two counts. She said this witness was far away from the spot where the incident took place and since the spot was not even visible from the place where the prosecution P.W. 12 was standing, he could not have given the details of the incident. She also pointed out that this witness is close relative of the 11 Cri. Appeal 132.2007 complainant and was admittedly an accused in the previous Sessions case of murder of Khushal. She also brought to our notice that in that murder case, this witness was convicted. She said that this witness could not be believed at all. We are afraid we cannot tow this line of submission. No doubt, this witness is a close relative of the complainant and could have been an interested person against the appellant and others, but it is clearly proved that this witness came near the spot immediately after the incident. It is also proved that within few minutes, this witness and others took the injured to the Police Station. The Station diary exhibit 91 shows that at about 5:35 pm., the appellant Ashok had reached the Police Station. It is not disputed that the appellant after the incident went on foot to the Police Station. As against that at about 5:40 pm., i.e. within five minutes, the vehicle carrying both the injured reached the Police Station. This indicates that this witness and his companions could reach the spot immediately after the incident and within short time, they arranged an auto-rickshaw to carry the injured towards the Police Station. In the cross-examination of these witness, he said, soon after the jeep turned around, he and his companions started running towards the scene of incident. He admitted further that after the incident, he did not chase the appellant and the accused which is natural conduct because he was more concerned with the 12 Cri. Appeal 132.2007 condition of his uncles. So, the presence of this witness near the spot of the incident, and his reaching their immediately after the incident is not at all doubtful. 7] Mrs. Jadhav tried to convince us that at least this witness claiming that the appellant shouted at him threatening that he would do some harm to his uncles, should be disbelieved. She said this could be an exaggeration, but we do not accept this contention because if the appellant could commit this ghastly crime, and use his vehicle in such a manner and in view of the existing strong enmity between the parties and in view of the rather vulnerable position of the riders of the motorcycle, vis-a-vis the strength of the vehicle like jeep, it was probable that the appellant would utter those threatening words to this witness. 8] Mrs. Jadhav for the appellant tried to contend that the appellant's conviction under section 302 I.P.C. is not sustainable. She suggested that at the most the appellant could be convicted under section 304 part (I). By no stretch of imagination we can visualize this incident of culpable homicide as not being a murder. The case would clearly fall under section 300 fourthly of the Indian Penal Code, which reads as under:- " 300. Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is 13 Cri. Appeal 132.2007 caused is done with the intention of causing death, or .... .... fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." . We cannot accept the contention that this homicide is not murder, as it does not fall within the five exceptions of Section 300 of the Indian Penal Code. The Criminal Appeal should therefore fail. The Criminal Appeal stands dismissed. Sd/- Sd/- (A.V.NIRGUDE, J.) (P.V.HARDAS, J.) arp