1 Criminal Appeal 581 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL 581 OF 2009 Baban S/o.Dadabhau Pathare, Age-38 years, Occu-Agriculturist, R/o.Walwane, Tq.Parner, Dist. Ahmednagar APPELLANT VERSUS The State of Maharashtra RESPONDENT Smt.S.S.Jadhav, learned counsel for the appellant. Mr.N.H.Borade, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 15/02/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant has questioned the correctness of his conviction u/s. 302 of The IPC, for which he was sentenced to suffer life imprisonment and to pay fine in the sum of Rs.1,000/- with default stipulation of undergoing rigorous imprisonment for 6 months. He was also convicted for an offence punishable u/s. 307 of The IPC, for which he was sentenced to suffer rigorous imprisonment for 5 years and to pay fine in the sum of Rs.1,000/- with default stipulation of undergoing further rigorous imprisonment for 6 months. He was 2 Criminal Appeal 581 of 2009 also convicted for an offence punishable u/s. 504 of The IPC and was sentenced to suffer rigorous imprisonment for 2 years and to pay fine in the sum of Rs.1,000/- with default stipulation to suffer further rigorous imprisonment for 6 months. He was also convicted for an offence punishable u/s. 506 of The IPC and was sentenced to suffer rigorous imprisonment for 3 years and to pay fine in the sum of Rs. 1,000/- with default stipulation to suffer further rigorous imprisonment for 6 months in Sessions Case No.108/2007 by the Additional Sessions Judge, Ahmednagar vide his judgment and order dated 15/10/2009. 2. At the outset, prosecution unfolded the case as follows : a) One Vikas Dhondiba Somwanshi (P.W.No.6) was on night duty at Supa outpost of Parner Police Station on 02/02/2007. At about 4.00 a.m. to 4.30 a.m., he received telephone message from Parner Police Station that some persons were crushed by a truck in Walwani shivar, and in the said incident, 3 persons are dead and 2 persons are injured and all were taken to the hospital of Dr.Sonar at Ahmednagar. He was instructed to visit hospital of Dr.Sonar. Immediately, he rushed to the hospital of Dr.Sonar, where he reached at about 5.00 p.m. to 5.30 p.m. In the hospital, he noticed that Rajesh Ashok and Ashok Ananda were taking medical treatment. In the hospital, he recorded statement/complaint (Exh.37) of Rajesh Ashok Pathare. On the basis of this complaint, an offence was registered vide CR No.30/2007 for an offence punishable u/s. 302, 3 Criminal Appeal 581 of 2009 307, 504, 506 r/w. 34 of The IPC against the appellant and 2 others. b) Dead bodies of Laxman, Hirabai and Anjanabai were sent to Civil Hospital, Ahmednagar. In the Civil Hospital, inquest panchnama (Exh.38, 39, and 40) were drawn of the dead bodies. Thereafter, they went to civil Hospital, where in presence of panch witnesses, he seized clothes of these 3 victims under the panchnama Exh.63. In the afternoon, he arrested accused Surekha and accused Dadabhau under the panchnama at Exh.64 and Exh.65. On 05/02/2007, he had recorded statements of owner and Manager of the Transport Company, situated at Pune, where the appellant was serving as a Driver. Investigation in the said crime was carried out by P.I. Shri. M.N.Chavan, P.W.No.9. c) During the investigation carried out by P.I. Chavan (P.W.No. 9), on 02/02/2007 he had visited scene of offence and drew spot panchnama (Exh.75) in the presence of panch witnesses. From the spot, he had seized broken frame of mirror, pieces of glass, blood mixed soil and plain soil. Photographer was called at the scene of offence, who took photographs (Exh.76/1 to 76/13) of the scene of offence. On that day, he recorded statements of 18 witnesses, including injured Ashok Anand. On 03/02/2007, container involved in the crime was seized at Mohol, Dist. Solapur under the panchnama at Exh.41. After the container was brought to Parner Police Station, photographer was called and photographs (Exh.77/1 4 Criminal Appeal 581 of 2009 to 77/4) were taken. On 03/02/2007, he had recorded statements of 17 witnesses. d) Dr.Shrikant Chandrakant Pathak, Medical Officer (P.W.No.4) attached to Civil Hospital, Ahmednagar, conducted autopsy on the 3 dead bodies of Hirabai, Laxman and Anjanabai. While conducting autopsy on the dead body of Hirabai, he had noticed following injuries : 1. Compound fracture tibia fibula right side lower 1/3rd. 2. Abrasion on right thigh inner aspect, 3. Penetrating wound, vagina, parietal area 6 x 5 x 3 cm. On external examination, injuries noticed was palpation fracture pelvis at the anterior aspect. He also noticed abdominal cavity and there was haematoma of 15 x 10 cm in the pelvic cavity. According to him, probable cause of death is due to hypovolemic shock due to multiple injuries with intra abdominal hemorrhage. Accordingly, he had prepared post mortem notes at Exh.51. e) While conducting autopsy on the dead body of Laxman, he had noticed following injuries. 1. Abrasion right ankle, posterior aspect. 2. Abrasion over buttocks and back, bruises were also noticed. He had also noticed ruptured bladder with hemorrhage shock with intra abdominal hemorrhage. Accordingly he had prepared post mortem notes at Exh.52. 5 Criminal Appeal 581 of 2009 f) While conducting autopsy on the dead body of Anjanabai, he had noticed following injuries. 1. Abrasion and tyre marks were seen on the left thigh. Upper aspect and left side of the abdomen. 2. Defused swelling over left thigh, upper aspect. He had also noticed palpation fracture left femur middle 1/3rd in the abdomen. Cavity haemotoma was seen on left lumber region. According to him, probable cause of death was hemorrhagic shock due to intra pelvic hemorrhage due to fracture pelvic and fracture left femur. Accordingly, he had prepared post mortem notes at Exh.53. He had also opined that the injuries sustained by Hirabai were sufficient in the ordinary course of nature to cause her death, and also opined that the injuries sustained by Hirabai are possible because of the forcible dash given by the heavy vehicle. He has further opined that the injuries sustained by Laxman of rupture bladder is a serious injury. Rupture of bladder may cause sudden death. Those injuries can be caused due to forcible dash given by a heavy vehicle and sufficient in the ordinary course of nature to cause death. He has further opined that the injuries sustained by Anjanabai are grevious in nature. The injuries caused are possible because of a dash given by heavy vehicle and in the ordinary course of nature, sufficient to cause the death. He has also collected blood samples of the blood of all the 3 deceased for blood grouping. g) During the investigation, sketch map of the scene of offence 6 Criminal Appeal 581 of 2009 was prepared by the Circle Officer Aba Dharma Thakur (P.W.No.10). Appellant surrendered before Parner Police Station on 04/02/2007 and was put under arrest. During the investigation, seized articles were sent to Chemical Analyser alongwith covering letter. Investigation Officer also collected medical papers about the treatment given to the injured from the hospital of Dr.Sonar. After completion of investigation, he filed charge sheet in the Court of J.M.F.C. Parner. 3. On committal of the trial to the Court of Sessions, learned Trial Court framed charge against the appellant and 2 others for an offence punishable u/s. 302, 307, 504, 506 r/w. 34 of The IPC at Exh.5, to which the appellant and others pleaded not guilty and claimed to be tried. During the trial, prosecution has examined in all 11 witnesses to prove the charge against the appellant and others. Defence of the appellant and others was of total denial. On appreciation of this evidence, learned Trial Court pleased to convict the appellant for the aforesaid charges, while acquitted accused Surekha and Dadabhau from all the charges. Admittedly, State has not challenged their acquittal by filing any appeal. 4. As the conviction of the appellant is based on the evidence of 3 eye witnesses, and the medical evidence, it is necessary to advert to the evidence of these witnesses before considering the submissions of learned counsel for appellant and learned A.P.P. for State. 7 Criminal Appeal 581 of 2009 5. It is in the evidence of Ashok Anand Pathare (P.W.No.3) that he alongwith his family members are residing in the farm house situated at Walwane. Farm house of appellant and his brothers is situated near his farm house. 2½ years prior to the incident, they have purchased 32 gunthas of land from one Bhausaheb Pathare, which land was earlier cultivated by Baban, the appellant. Since then there is dispute between them and appellant. On this count, appellant used to abuse them and used to say that he would kill them. While giving evidence about the incident, he had stated that it was full moon day. Appellant started abusing them. Some exchange of words took place between them. Due to that appellant got infuriated. At that time, Surekha Pathare and Dadabhau Pathare also came there. Laxman Chaher and Hirabai Chaher also came there and tried to pacify the situation and also tried to convince the appellant by saying that the dispute may be settled amicably. But appellant did not listen them. Appellant was saying that we have deprived his livelihood and he would eliminate us. Appellant went to his truck and started the truck and drove it towards them. He had further stated that they did not feel that appellant may do anything wrong with them. Hence they remained at the spot. But later on they started running here and there as appellant drove the truck towards them. Due to old age, Hirabai was unable to run. Rear side wheel of the truck ran over her left leg. Laxman went to save her, but truck also gave dash to him and the truck ran over his stomach. Laxman fell down. When Anjanabai went near them, 8 Criminal Appeal 581 of 2009 truck also gave dash to her left leg. She also fell down. When witnesses went to rescue her, they were also dashed by the truck. When his son Rajesh P.W.No.1 came to save him, dash was also given to him by the truck. Appellant was driving the truck to kill them while Surekha and Dadabhau were instigating him. Then he pelted stone towards the truck. He has further stated that then they were taken to the hospital of Dr.Pathare, who refused to treat them and advised to go to Ahmednagar, hence they were taken to Dr.Sonar’s Hospital, while Anjanabai, Hirabai and Laxman were taken to Civil Hospital, Ahmednagar. He had stated in his cross examination that 32 gunthas land was purchased on 11/09/2011. Thereafter, he purchased 10 gunthas land from accused Dadabhau, which was allotted to the share of appellant. He had admitted that appellant used to visit the village once in a month or so. He denied the suggestion that on the day of incident, they have assaulted appellant Baban. In his further cross-examination, he had admitted that appellant have not crushed the deceased below his truck, but denied portion marked A to D in his statement before police, which was later on proved and marked as Exh.89 to Exh.92. He had also admitted that in his statement before police, he has not used the word “dash”. He had also denied the suggestion that they tried to set the goods in the truck of the appellant on fire, hence appellant removed the truck from the spot to save the goods, truck and his life. He had admitted that incident 9 Criminal Appeal 581 of 2009 took place in the field of one Damale. He had denied the suggestion that Laxman, Hirabai and Anjanabai chased the truck of appellant on motorcycle and in that process, motor cycle came in contact with the truck, due to which the trio fell down and sustained injuries and then succumbed to injuries. He had admitted that on the next day, he was discharged from the hospital at about 9.00 a.m. to 10.00 a.m. He had not disclosed the incident to the persons gathered at the time of funeral of deceased Laxman, Hirabai and Anjanabai. 6. At this juncture, we took the note of the fact that about suggestions put to this witness in his cross examination The incident took place in the night between 01/02/2007 and 02/02/2007. Immediately, thereafter, injured and deceased were taken to the hospital of Dr.Pathare, Dr.Sonar and to the Civil Hospital, Ahmednagar by neighbourers and relatives. Spot panchnama was prepared in the early morning in between 8.10 a.m. to 9.30 a.m. of 02/02/2007. At that time, no motor bike in damaged condition or otherwise was found at the spot or near the spot to believe the defence taken by the appellant. Secondly, age of Hirabai was of 60 years. There is no possibility at all that she may participate to chase the truck on motor-bike. 7. Evidence of Rajesh Ashok (P.W.No.1) son of P.W.No.3 discloses that there was dispute between appellant and his family because of purchase of 32 gunthas land from Bhau Pathare, which was earlier 10 Criminal Appeal 581 of 2009 cultivated by the appellant. As the appellants have assaulted his father, earlier also complaint was lodged in the police station. He had further stated that on the day of incident, he received call on his cell phone from his maternal uncle deceased Laxman on 01/02/2007 that appellant Surekha and Dadabhau were abusing his parents and threatening them. Immediately, on receipt of telephonic message, he reached at the spot. On the spot, he had noticed that appellant and others were abusing, and his parents Hirabai and Laxman were pacifying the quarrel. His aunt Lata Balu Pathare (P.W.No.8) and uncle Suresh have also came there. Appellant was saying to his parents that they have deprived his livelihood and they should be prepared for death. Then appellant rushed towards his truck, and drove the same towards them. Initially truck gave dash to Hirabai. When Laxman went to see Hirabai, appellant gave dash to him also, due to which Laxman fell down. When he and his parents reached there, again appellant turned the truck and gave dash to them. Then the appellant ran away from the spot with the truck. Thereafter, all of them were taken to the hospital of Dr.Pathare at Supa. First aid was given to them and then they were shifted to hospital of Dr.Sonar. Hirabai, Laxman and Anjanabai were declared dead. Their bodies were taken to Civil Hospital, Ahmednagar. While he was taking treatment in the hospital of Dr.Sonar, his complaint Exh.37 was recorded by the police from Parner Police Station. 11 Criminal Appeal 581 of 2009 8. It transpired from his marathone cross examination that his farm house is situated at about 1 to 1 ½ km from the village. The incident took place in the field of one Vitthal Damale. He has further stated in his cross examination that the truck driven by the appellant was a six-feet container and loaded with goods. He has further stated that the container ran over the legs of Hirabai, over the stomach of Laxman and on thighs of his mother Anjanabai. He has further stated that he fell down near the heap of fodder. He has further stated that at the time of incident, his family members and relatives were only present as nobody are having the residential houses near the place of scene of offence. According to us, his evidence on the point of occurrence of incident was not shattered in his cross examination. It is to be noted that the defence put to witness no.3 Ashok about chasing of container by Hirabai, Laxman and Anjanabai on motor-cycle was not put to this witness. 9. It transpired from the evidence of Smt.Lata Pathare (P.W.No.8), the sister in law of appellant and paternal aunt of the complainant that she is residing at 5-10 minutes walking distance from the farm house of injured complainant as well as from the farm house of appellant. While giving evidence about the incident, she has stated that on 01/02/2007, she was present in her house, situated in her field. She heard the quarrel between appellant and Ashok. She has stated that initially she had ignored the quarrel. But after some time, when the commotion increased, she went to the spot. There 12 Criminal Appeal 581 of 2009 she noticed that appellant was driving the container and gave dash to Hirabai. Container ran over her left leg. Son of Hirabai, Laxman rushed towards her. He has also dashed by the container. When Anjanabai saw that her mother Hirabai and brother Laxman knocked down by the container, she also rushed to save them, but she was also dashed by the container, due to which she became un- conscious. At that time, Surekha and Dadabhau were abusing them. All of them were brought to Dr.Pathare’s hospital at Supa, but since they were not got admitted in the hospital, they were taken to Dr.Sonar’s hospital at Ahmednagar. She had further stated that Laxman and Hirabai died before they reached the Hospital of Dr.Sonar, and Anjanabai died after taking treatment for some time. During her cross examination, it is brought on record by the learned counsel for appellant that when she reached at the spot, container was already started and left rear wheel of the container ran over the left leg of Hirabai. Her left leg was crashed. When Hirabai fell down, he rushed towards her, while Laxman was lifting Hirabai, container gave dash to him from front side. Anjanabai rushed towards Hirabai and Laxman and while she was tried to pull them aside, dash was also given to her by the container. In her cross examination, she had denied that during the incident, complainant and her relatives assaulted appellant. She had also denied the suggestion that she and her relatives were shouting to set on fire the goods loaded in the truck, hence appellant drove the truck to take it 13 Criminal Appeal 581 of 2009 outside, at that time, injured and others were obstructing the appellants, and in that process, they sustained injuries. She had also denied the suggestion that Laxman, Hirabai and Anjanabai were chasing the container of the appellant and dashed the container and fall on the stony surface and sustained injuries. 10. We have heard learned counsel for appellant and learned A.P.P. for State. In the light of the evidence of these eye witnesses and other circumstantial evidence including the medical evidence on record, it is urged by the learned counsel of appellant that the ocular evidence given by these witnesses is not supported by the medical evidence as the post mortem reports at Exh.51 to Exh.53 of the post mortem of Hirabai, Laxman and Anjanabai do not indicate that any of the deceased had sustained crushed injuries. Our attention is further drawn towards the photographs of the container at Exh.77/1 to 77/4, and it is urged that considering the length and size of the container, it is not possible to drive the container in the manner, as projected in the evidence of P.W.No.1, P.W.No.3 and P.W.No.8. It is also urged that the appellant had explained his defence in his written statement recorded u/s. 313 of the Cr.P.C. Our attention is drawn towards the contents of para no.7 of his written statement which is in the line of suggestions put in the cross examination of P.W.No.3 Ashok, and P.W.No.8 Lata. Our attention is also drawn towards the spot panchnama Exh.75. According to learned counsel for appellant, the map annexed with the spot panchnama clearly 14 Criminal Appeal 581 of 2009 indicates that at one side of the spot, there is brook and it is not possible to drive the truck in the zigzag manner. According to her, on perusal of the evidence of Dr.Vijaykumar P.W.No.5, who have examined injured witnesses P.W.No.1 and P.W.No.3, and issued medical certificates at Exh.55 and 56, clearly indicates that the nature of the injuries sustained by these witnesses are simple. In the circumstances, prosecution failed to establish the guilt of appellant beyond reasonable doubt. In the alternate, it is urged that considering the evidence given by P.W.No.1 and 3 that at that time of alleged incident, there was verbal exchange between P.W.No.3 and the appellants, hence the conviction of the appellant punishable u/s. 302 to be altered u/s. 304-II of The IPC. 11. During the course of submissions across the bar, learned A.P.P. appearing for respondent State supports the reasoning given by the Trial Court while convicting the appellant for all the charges held proved against him. According to him, the evidence on record clearly established that appellant had intentionally drove the container and gave dash to Hirabai, Laxman and Anajajabai, which ultimately resulted in their death and there was intention to kill P.W.No.1 Rajesh and P.W.No.3 Ashok before the alleged incident and the appellant had given threats as to eliminate the deceased and the injured witnesses. In the premise, charge stands proved against the appellant beyond reasonable doubt, hence no interference is required in the conviction and sentence recorded by the learned Trial Court. 15 Criminal Appeal 581 of 2009 13. After giving cautious consideration to the submissions of learned counsel for appellant and learned A.P.P. for State/respondent across the bar, and on re-appreciation of the evidence led by the prosecution before the Trial Court, there is no doubt in our mind that in the night between 01/02/2007 and 02/02/2007, appellant drove the container and gave dash to Hirabai, Laxman and Anjanabai, which ultimately resulted in their death as well as caused injuries to witness Ashok and witness Rajesh. Even though it was vehemently urged that considering the length and size of the container, it is not possible for the appellant to drive the container in the manner as projected by the eye witness P.W.No.1 Rajesh and P.W.No.3 Ashok and as deposed by P.W.No.8 Lata, at this juncture, we appreciate the photographs taken by the Investigation Officer while drawing the spot panchnama. These photographs require to be considered in the light of map annexed with spot panchnama Exh.75, which shows the tyre marks of the container at the spot. These tyre marks of the container shows that the truck was driven by the appellant not only in zigzag manner, but was driven in encircled shape. This truck was driven in the open space, at some distance from the farm house of complainant and farm house of the appellant. The place where the broken pieces of bangles were found and the place where blood mixed soil was found, there is distance between these 2 places. In between these 2 places, the tyre marks are found in encircled shape. In this light, the evidence given by P.W.No.1 and P.W.No.3 is fully supported by P.W.No.8 Lata. Apart from it, the facts are brought on record by 16 Criminal Appeal 581 of 2009 the appellant before the Trial Court in the cross examination of P.W.No.8 Lata that initially the container gave dash to Hirabai. Hirabai fell down. On seeing that, Laxman went to rescue her and when he was trying to lift her, container gave dash to Laxman. In that process, container ran over the stomach of Laxman. Anjanabai, daughter of Hirabai and sister of Laxman, rushed towards the place to pull both of them aside, but container also gave dash to her and in that process, the wheel of the container ran over her legs. When Ashok and Rajesh, father and son went to rescue them, container also gave dash to them. These facts clearly show that the dash given by the container to the 3 deceased persons and 2 injured witnesses was not an accidental dash but was an intentional dash. In this context, we have also gone through the defence put to the eye witnesses. In one of the paragraph supra, we have discussed that defence put to P.W.No.3 and P.W.No.8 that complainant Rajesh and his relatives tried to set the goods on fire present in