1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.591 OF 1991 1 Mahadeo Laxman Kshirsagar aged about 50 years 2 Sidram Mahadeo Kshirsagar aged about 28 years, both are residing at Rampur, Tal: Solapur, District: Solapur ...Appellants. v. State of Maharashtra ...Respondent. Ms Pooja Thorat i/by Shri V.M.Thorat, advs. for the Appellants. Mr.Y.M.Nakhwa, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : DECEMBER 6, 2010 ORAL JUDGMENT: 1 Original accused nos.1 and 2 were convicted by the learned Vth Additional Sessions Judge, Solapur in Sessions Case No.112 of 1990 for the offences punishable under Sections 307 and 323 of the I.P.C. and were sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,000/- on the first count and R.I. for six months and to pay fine of Rs.500/- on the second count. They have challenged the conviction and sentence by this appeal. 2 2 To state in brief, prosecution case is that, on 27.3.1990 at about 9 p.m. P.W.1 Maruti, who was a complainant, was studying in the campus of the nearby village school as he was preparing for S.S.C. examinations. Accused persons appear to be relatives of the said Maruti and his mother P.W.2 Girjabai. At that time P.W.1 Maruti heard noise of quarrel and he came out from the school. He saw the accused no.1 abusing his mother P.W.2 Girjabai in filthy language. On this P.W.1 Maruti asked the accused no.1 as to why he was abusing his mother. On this, accused no.1 pushed Maruti, due to which Maruti fell on a heap of stones. At that time accused no.2 Sidram, who is son of accused no.1, came there from his house with knife in his hand. He sat on the person of P.W.1 Maruti and began to stab him with knife. Due to this P.W.1 Maruti and his mother Girjabai began to shout. Hearing the shouts P.W.5 Dattatraya, who is brother of Maruti and P.W.4 Laxmibai, who is sister- in-law of Maruti also came there. They tried to rescue Maruti. However, accused no.1 gave a stick blow on the head of Laxmibai while accused no.2 gave blows on the chest and leg of Dattatraya with knife. They also suffered injuries. As far as Maruti is concerned, he suffered bleeding injuries on his abdomen, back as well as chest, due to which his intestine were protruding out. With the help of P.W.4 Laxmibai and P.W. 3 5 Dattatraya, he tried to keep intestines inside the abdomen. He was then taken to the hospital where his statement was recorded by police. That statement was treated as F.I.R. Exhibit 16 and Crime No.19 of 1990 was registered under Section 307 r/w Section 34 of the I.P.C. P.W.1 Maruti, P.W.4 Laxmibai and P.W.5 Dattatraya were examined by the medical officer and were given treatment. Both the accused persons were arrested. During the investigation, on the basis of information given by the accused no.2, the knife, which was used as a weapon of offence, was discovered and seized under a panchanama. After investigation, police filed chargesheet for the offences punishable under Sections 307, 323 r/w Section 34 as well as Section 135 of the Bombay Police Act. Case was committed to the Court of Sessions in the due course. 3 Accused persons pleaded not guilty. According to them, large number of people had assembled and during the quarrel, accused no.1 Mahadeo, his wife Parvati and accused no.2 Sidram had suffered several injuries. They denied that they had caused any injuries to prosecution witnesses Maruti , Laxmibai or Dattatraya. 4 On behalf of the prosecution, in all ten witnesses were examined. Several documents were placed on record. On behalf of the accused, Dr. Abdul Latif was examined as defence witness. He was 4 examined mainly to prove injuries suffered by the accused nos.1 and 2 and Parvati wife of accused no.1. Trial Court, after hearing both parties, convicted and sentenced both the accused persons as stated above. 5 Heard. On perusal of the oral and documentary evidence, it appears that P.W.1 Maruti , his mother P.W.2 Girjabai, his brother's wife P.W.4 Laxmibai and his brother P.W.5 Dattatraya are the eye witnesses of the incident. It appears that accused persons are also related to them and, therefore, P.W.1 Maruti used to call accused no.1 Mahadeo as maternal uncle or Mama. From the evidence, it appears that during the month of March, 1990, P.W.1 Maruti was appearing for the S.S.C. Examination. On 27.3.1990, it was Gudipadwa festival and, therefore, it was holiday for the examination. Because of the holiday and the festival, he had come to his house at village Rampur. After taking his meals, he went to the village school for study. According to him, at about 9 p.m., he heard accused no.1 abusing his mother Girjabai in filthy language, therefore, he came out . At that time also, accused no.1 was abusing her. P.W.2 Girjabai also deposed that accused no.1 was abusing her under the influence of liquor and on hearing the sound, P.W.1 Maruti came there from the school. Their evidence shows that P.W.1 Maruti asked the accused no.1 as to why he is abusing his mother. On this accused no.1 5 pushed Maruti, due to which Maruti fell down on the heap of stones. At that time, accused no.2 Sidram, who is son of accused no.1, came there with knife in his hands and sat on the person of Maruti and began to give knife blows. Due to this Maruti and his mother began to shout. Hearing the shouts, P.W.4 Laxmibai and P.W.5 Dattatraya also came there and they tried to separate Maruti from the accused persons. At that time, accused no.1 gave a stick blow on the head of Laxmibai and accused no. 2 gave knife blows on the chest and leg of Dattatraya. As per the evidence of P.W.1 Maruti and P.W.2 Girjabai, accused no.2 had stabbed Maruti on the chest and abdomen as well as back by giving number of blows. When people of the locality gathered, accused ran away. One Mallikarjun Kamble came there. He gave water to Maruti. Another person Krishnanath Bansode brought motorcycle of Veerprakash Gherde and took Maruti to Valsang Police Station. According to Maruti, his intestine had come out from the abdomen and he was trying to push it back. When he was at the police station, he vomited. Therefore, he was immediately rushed to the civil hospital at Solapur. He became unconscious. On the next date at about noon time, he regained consciousness. P.W.10 P.S.I. Bagal recorded statement of Maruti at about 12.30 p.m. and treated as F.I.R., Ex.16 and the offence was 6 registered. P.W.2 Girjabai has fully supported the evidence of Maruti and other witnesses. 6 P.W.4 Laxmibai deposed that after the meals were over, Maruti had gone to the school for studies. Laxmibai and her husband and other family members were sleeping in the house. In front of the house some quarrel started between her mother-in-law Girjabai and accused no. 1. Accused no.1, who was under the influence of liquor, was abusing P.W.2 Girjabai in filthy language. She also heard Maruti asking accused no.1 as to why he was abusing his mother and the accused no.1 threatening to kill him. When Laxmibai came out, she saw accused no.1 pushing Maruti on the heap of stones and at that time, accused no.2 Sidram rushed to the spot, sat on the person of Maruti and began to give knife blows on his person. According to the Laxmibai, she fell on the person of Maruti in order to save him. However, the accused no.1 gave stick blow on her head and she became unconscious. According to her, she regained consciousness in the hospital. P.W.5 Dattatraya also deposed that he heard accused no.1 abusing his mother in filthy language. For some time Dattatraya neglected as both the sides are related to each other. However, when he heard shouts of her mother , he and Laxmibai came out. According to him, when he came out from the 7 house, P.W.1 Maruti was lying on the heap of stones and accused no.2 was sitting on his person and giving knife blows. He also saw Laxmibai falling on the person of Maruti. Accused no.1 gave stick blow on her head and due to which she became unconscious. P.W.5 Dattatraya deposed that when he was dragging Maruti to save him, accused no.2 gave knife blows on his chest and left knee due to which Dattatraya also suffered injuries. People gathered there and thereafter the accused persons ran away. According to him, he took Maruti towards the house of Mallikarjun Kamble, who gave him water. Then Maruti was taken to Valsang Police Station on the motorcycle of Veerprakash Gherde. From the police station , he was taken to Civil Hospital, Solapur where Maruti became unconscious. He regained consciousness on the next day at about noon time. 7 Evidence of P.W.6 Dr.Kulkarni shows that on 27.3.1990 at about 10.50 p.m. he was on duty at Civil Hospital at Solapur as a medical officer. At that time, injured Maruti, Dattatraya and Laxmibai were brought to the hospital alongwith requisition Ex.24. He first examined P.W.1 Maruti Vithoba Godave and noted following injuries on his person: “1 Incised wound 2 cm x 1 cm cavity deep over left chest in mid calvicular line at IInd 8 inter coastal space. 2 Incised wound 2 cm x 1 cm cavity deep over right side of ambilicus over abdomen. There was prolapse of omentum. 3 Incised wound 3 cm x 2 cm superficial on left 4th side axillary fold. 4 Incised wound 2 cm x 1 ½ cm left forhead bleeding plus. Injuries nos.3 and 5 are one and the same. 6 Incised wound 3 cm x 2 cm just medical to above wound i.e. Wound no.3 post axillary fol. Injury no.7 is a writing mistake. 8 Incised wound 3 cm x 2 cm on the right side of back the 4th inter coatal space. 9 Incised wound 3 cm x 2 cm x 2 cm 8 cm below injury no.6 cavity deep. 10 Incised wound 2 cm x 2 cm superficial over the left buttock 11 Incised wound 3 cm x 2 cm on left side of renal region superficial.” Even though 11 injuries are shown as per number but infact it appears that injury nos.3 and 5 were the one and the same injury and injury no.7 was wrongly mentioned. Thus, infact there were nine injuries. According to him, all the injuries would be caused by hard and sharp cutting 9 instrument. All the injuries except 6,10 and 11 were grievous injuries and were caused within six hours. Knife article 6 was shown to him and he deposed that the injuries were possible with the said weapon. He also deposed that Maruti was in state of shock and immediately operation was performed. If medical aid would not have been provided immediately, he could have died. Injury nos.1,2 and 9 were infact stab injuries though they were shown as incised wounds. He issued Medical certificate Ex. 25. 8 Evidence of P.W.6 Dr. Kulkarni shows that on examination, he found two injuries on the person of Dattatraya. They were contused lacerated wounds on the left knee and deep linear abrasion over the sternum of chest. On examination of Laxmibai, contused lacerated wound over the left parietal bone was seen. From the medical evidence, it appears that injuries suffered by P.W.4 Laxmibai and P.W.5 Dattatraya were simple in nature while several of the injuries suffered by P.W.1 Maruti were serious and could be sufficient to cause death if timely medical aid would not have been provided. 9 Evidence of P.W.10 PSI Vijay Bagal and P.W.7 Shabbir reveals that on 28.3.1990 both the accused persons were arrested at about 8 p.m. . There were blood stains on the banian of the accused no.2 10 Sidram. It was also seized under panchanama. Accused no.2 Sidram agreed to produce the knife, which was kept in his house and accordingly memorandum Ex.35A was recorded. Thereafter, he took the police and panchas to his house and produced the knife Article 6 from the backside of one box. There were blood stains on the said knife. It was seized under the panchanama, Ex.35B. Knife article 6 was identified by P.W.1 Maruti as the weapon with which he was assaulted. As stated above, P.W.6 Dr.Kulkarni also confirmed that all the injuries on the person of Maruti could be caused with the knife article 6. 10 Taking into consideration the evidence on record, it is established by the prosecution that initially some quarrel took place between P.W.2 Girjabai and accused no.1. Accused no.1 was abusing her in filthy language. Hearing this , her son P.W.1 Maruti came there and asked no.1 as to why he was abusing his mother. On this, accused no.1 pushed him on the heap of stones. At that time, accused no.2 came there with knife in his hands and immediately sat on the person of P.W.1 Maruti and began to stab him with knife. As far as role of accused no.2 is concerned, it is clear that he gave knife blows repeatedly and caused grievous hurt on different part of the body of P.W.1 Maruti and some of the stabbed wounds were on the abdomen and chest and they could have 11 caused death also. From the manner in which he stabbed him and gave repeatedly knife blows, it may be safely held that his intention was to cause death of Maruti and if Maruti would have died, Accused no.2 could be held guilty for the offence of murder. Therefore, he is liable to be convicted for the offence punishable under Section 307. However, looking to the facts, it is clear that accused no.2 came to the spot with knife in his hands after the accused no.1 had pushed Maruti on the heap of stones. At that time, accused no.2 abruptly came there with knife and began to assault and stab Maruti with knife. From this it is clear that accused nos.1 and 2 had not come to the spot together. Therefore, it cannot be held that there was common intention between the accused no.1 and 2 or that accused no.1 shared intention of the accused no.2 to stab Maruti. From the evidence, it appears that when P.W.4 Laxmibai and P.W.5 Dattatraya intervened, accused no.1 gave stick blow to Laxmibai and caused simple wound on her head. For causing simple wounds to Laxmibai and Dattatraya, accused persons were convicted for the offences punishable under Section 323 of the I.P.C. Conviction of accused no.1 for the offence punishable under Section 323 is justified. However, there is no material on the basis of which he could be convicted for the offence punishable under Section 307 r/w. Section 34 12 of I.P.C. Therefore, in my considered opinion, trial Court committed error in convicting the accused no.1 for the offence punishable under Section 307 r/w Section 34 of the I.P.C. 11 Taking into consideration role of the accused no.2, he is rightly convicted for the offence punishable under Section 307 and 323 and sentence awarded to him also appears to be justified. In view of the facts, accused no.2 could be convicted only under Section 323 r'/w Section 34 of the I.P.C. He was shown to be aged about 50 years at the time of the incident. It appears that in his statement under Section 313, he claimed to be 60 years old. Anyhow, incident is 20 years old. Even if he was 50 years old , he is an old man aged about 70 years by this time. Therefore, in my considered opinion, no purpose will be served by sending him to the jail now. 12 For the aforesaid reasons, appeal is partly allowed. The conviction of accused no.2 Sidram for the offences punishable under Section 307 and 323 of the I.P.C. and the sentence awarded for the same are maintained. However, accused no.1 Mahadeo is acquitted of the charge punishable under Section 307 r/w Section 34 of the I.P.C. but his conviction under Section 323 r/w Section 34 of the I.P.C. is maintained. 13 He is sentenced to imprisonment, which he has already undergone from 28.3.90 when he was arrested till 6.4.90 when he was released on bail, and to pay fine of Rs.1,000/-. In case, he fails to pay fine, he shall undergo S.I. for one month. Accused no.2 Sidram to surrender before the trial Court within 15 days from this day to undergo sentence awarded by the trial Court. (J.H. BHATIA,J.)