1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL APPEAL NO.914 OF 1988 1. Shamrao Bhiku Yevale. 2. Baburao Bhiku Yevale. 3. Ramdas Shamrao Yevale. 4. Keshav Baburao Yevale. 5. Bhanudas Baburao Yevale. All residing at Bhogaon, Taluka Wai, District-Satara. ..Appellants. V/s. 1. The State of Maharashtra. 2. Smt.Kusum Ashok Yevale. .Respondents. WITH CRIMINAL APPEAL NO.101 OF 1988 The State of Maharashtra ..Appellant. V/s. 1. Shamrao Bhiku Yevale. 2. Baburao Bhiku Yevale. 3. Ramdas Shamrao Yevale. 4. Keshav Baburao Yevale. 5. Bhanudas Baburao Yevale. All residing at Bhogaon, Taluka Wai, District-Satara. ..Respondents. Mr. M.S.Mohite i/b R.S.Mohite appellants/accused. Mr.V.B.Konde-Deshmukh, APP for State. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 7, 2006. DATE : FEBRUARY 7, 2006. DATE : FEBRUARY 7, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Judgment will dispose of both the cross appeals. Criminal Appeal No.914 of 1988 is preferred by the accused for setting aside the order of 2 conviction and sentence, whereas Criminal Appeal No.101 of 1988 is preferred by the State for enhancement of sentence. Both these appeals emanate from the Judgment and Order passed by the Additional Sessions Judge, Satara dated October 9, 1987 in Sessions Case No.84 of 1984. The accused were prosecuted for the offence punishable under section 302,342, 201 r/w 34 of the I.P.Code. 2. The deceased and the accused are related to each other. The accused No.1 Shamrao Bhiku Yevale and accused No.2 Baburao Bhiku Yevale are the real brothers. Accused No.3 Ramdas Shamrao Yevale is the son of accused No.1 Shamrao. Accused No.4 Keshave Baburao Yevale and Accused No.5 Bhanudas Baburao Yevale are the sons of accused No.2 Baburao. The deceased Ashok was the third son of accused No.2 Baburao. All the accused are residents of village Bhogaon, Taluka Wai, District Satara. The complainant Kusum P.W.16 is the wife of deceased Ashok. The incident in question is alleged to have taken place on 13th April, 1984 at about 6 p.m. at village Bhogaon. It is the prosecution case that Ashok, his wife Kusum P.W.16 and her mother-in-law were the only persons present in the house. All of them took food at about 12.00 noon, whereafter, Ashok 3 left the house to go to Pandewadi alongwith his son Vijay and Jitendra, Son of Sunanda to give fruits of Shevga to his sister Mangal P.W.7. Sunanda P.W.6 is the cousin sister of Ashok. Ashok returned back at about 4.00 to 4.30 p.m.. Sunanda P.W.6 made enquiries with Ashok as to why he had taken away her son to village Pandewadi. Sunanda then abused Ashok. Thereafter, Ashok went inside the house and consumed liquor and came out and demanded match box from his wife Kusum P.W.16. As Ashok was threatening that he would set the stack lying in the court yard on fire and ruin all of them, Kusum P.W.16 did not give match-box to him. It is alleged that Ashok himself went inside the house and came out with the match box. He thereafter, went to the Western rear court yard and set the stack on fire. Chandrabhaga wife of the accused No.1 Shamrao shouted loudly. The inmates of the house and villagers arrived on the spot and extinguished the fire. On account of this incident all the persons in the house were angry and enraged. It is alleged that in the hit of moment, accused Nos.1 to 5 asked Ashok as to why he has set the stack on fire. They enquired whether he intended to kill them and burn them. Thereafter, they started abusing Ashok. Ashok in turn, also abused the accused. This episode allegedly took place at about 6 p.m.. It is 4 alleged that altercation took place. Then all the five accused started pulling and pushing Ashok to fall on the ground. Thereafter, they dragged Ashok inside the house. It is alleged that the accused asked Kusum P.W.16 to stay in the house of Shamrao-accused no.1 (her cousin father-in-law) who had his house in the neighbourhood. It is alleged that the accused persons took Ashok in the middle room and they latched the middle room from inside and started beating him. Ashok was crying and calling his mother to rescue. The prosecution case is that Kusum P.W.16 saw through the window that the accused Ramdas and Bhanudas were beating Ashok with sticks and the other three accused were giving kicks and fist blows. On seeing this, Kusum P.W.16 shouted loudly, but nobody came to rescue her husband Ashok. After sometime Ashok stopped shouting. On that, Kusum P.W.16 saw through the pipe of the window when she noticed that all accused persons were standing infront of her husband Ashok who was lying dead on the ground. It is also alleged that accused Shamrao, cousin father-in-law, threatened Kusum P.W.16 and asked her to keep silent. On that Kusum P.W.16 went to the house of Shamrao, cousin father-in-law and started crying. It is the prosecution case that thereafter, accused persons rolled up the dead body 5 of Ashok in a blanket. They kept the dead body in the bullockcart belonging to accused Shamrao and took the dead body to the burial place and burnt the dead body on the very same night. It is the prosecution case that on the next day when the uncle of Kusum P.W.16, Balasaheb Shinde, arrived at the scene, she told him that Ashok has not died natural death due to consumption of liquor as was informed to him, but has been killed. Thereafter, Kusum P.W.16 is stated to have gone with her uncle Balasaheb Shinde P.W.17 and later on went to the Wai Police Station where she lodged F.I.R. After the F.I.R. was registered, the Investigating Officer proceeded to the scene of offence alongwith Kusum P.W.16 and panchas. Kusum pointed out the spot. It is the prosecution case that she pointed out the blood stains on the brass vessel article No.1 and scraper article No.2, blood stained sample of earth and sample earth and two liquor bottles, articles Nos. 3 and 4 from the rear apartment were collected. It is stated that Kusum also pointed out where the stack was burnt. Accordingly, the Investigating Officer prepared panchanama of the same and attached one bundle of husk paddy. Thereafter, Investigating Officer, A.R.Jadhav P.W.18 arrested all the accused. It is stated that accused one by one produced blood stained 6 clothes from their house which were kept on the string, which came to be attached under panchanama Exh.29,31,32, 35 and 37. He thereafter, recorded statements of Sunanda Yevale, Mangala Gand, Sandip Arde, Gulabrao Yevale and Madhukar Pol & Others. It is stated that accused Shamrao pointed out ash and bones which were attached under panchanama Exh.39. Further, it is stated that accused Bhanudas produced stick before the panchas for which memorandum was prepared. The accused Bhanudas, it is stated that, led panchas to a heap of sugarcane and removed short sticks articles No.25 and 26 which were attached under panchanama. Accused Baburao produced bullock-cart which was attached under panchanama Exh.60. Accused Baburao went to the spot and pointed out the bullock-cart. Thereafter, bloodstained pieces of wooden plank of the said bullock-cart was attached under panchanama Exh.61. The Investigating officer P.W.18 further states that he caused to produce in all 14 witnesses before the Special Executive Magistrate for recording their statements under section 164 of Cr.P.C. After the investigation was completed, charge-sheet came to be filed. The case was committed to the Sessions Court at Satara. 3. During the trial, prosecution examined as 7 many as 18 witnesses. The accused pleaded not guilty and claimed to be tried. The accused tried to explain the bloodstains found on their clothes and on the floor and wall of the kitchen. According to them, wife of accused Baburao was cutting potatoes on the blade on the date of incident, she sustained injury while cutting potatoes and started bleeding profusely from her hand. She jerked her bleeding hand, on account of which the blood was strewn on the floor of the kitchen as also articles kept in kitchen and on the wall. According to the defence, Kusum P.W.16 had gone to Chandwadi about four days prior to the incident on 13th April, 2004. On the date of incident deceased Ashok consumed liquor and was found dead in his room. Accordingly, message was sent to P.W.16 whereafter she and persons from her parental house came on the next day Saturday morning. They stayed at Bhogaon till Sunday Morning and attended all the religious ceremonies which were performed after the death of Ashok. It is the case of the accused that Kusum P.W.16 filed false case against them at the instance of her paternal uncle Balkrishna Shinde P.W.17 in order to have share in partition. Accused examined Shivaji Laxman Yevale Exh.89 as defence witness. 8 4. The trial court, after conclusion of the trial, by the impugned Judgment and order has found accused No.1 to 5 guilty of the offence punishable under section 304(II) r.w 34 I.P.Code. The trial court has found that from the evidence on record it is not possible to take the view that accused had motive to murder Ashok. However, the evidence on record indicates that the accused wanted to teach lesson to Ashok but in the hit of passion they used excessive force without there being any intention to kill him. The trial court has taken a view that the act done by the accused was done with the knowledge that there is possibility of death due to assault on Ashok, but there was no intention to cause death or any injury likely to cause death. This conclusion is reached by the trial court on accepting the sole version of Kusum P.W.16. It is held that the version of P.W.16 to the effect that she had seen the incident atleast to the extent of accused persons dragging her husband Ashok inside the room and locking the door from inside will have to be accepted as trustworthy. The trial Court has rejected her version that she had the opportunity to see the persons assaulting her husband Ashok from the northern side of the house. Even So, the trial court has noted that the evidence of Kusum P.W.16 up to the 9 stage Ashok being dragged inside the house and the door was locked from inside by the accused and thereafter, Ashok was assaulted inside the room, coupled with the circumstances evident from the record that blood stains were strewn on the floor as well as wall and articles lying in kitchen. It proceeded to hold that it necessarily follows that Ashok was beaten mercilessly by the accused persons. It is on this basis the trial court proceeded to convict all the accused for offence punishable under section 304(II) r/w 34 I.P.C. and passed sentence for that offence only to pay fine of Rs.1,500/- each i.d. to suffer R.I. for three months. The trial Court also accepted the prosecution case that the accused persons were guilty of the offence under section 201 r/w 34 of the I.P.C. as they caused the evidence in relation to the crime to disappear from the scene including by disposing of the dead body of Ashok with undue haste on the very night. On that finding, the trial Court convicted the accused No.1 to 5 of offence punishable under section 201 r/w 34 of the I.P.C. and sentenced to suffer simple imprisonment till rising of the Court and to pay a fine of Rs.500/- each in default R.I for one month. The trial court also found the accused No.1 to 5 guilty of the offence under section 342 r/w 34 of the 10 I.P.C. for having wrongfully confined Ashok inside the house by locking door from inside and ordered that the accused shall undergo sentence by paying fine of Rs.300/- i.d. to suffer R.I. for 3 weeks. In the impugned judgment, the trial court further ordered that out of the fine amount sum of Rs.10,000/- to be paid to Kusum P.W.16. 5. This decision is the subject matter of challenge in the present appeals filed by the State for enhancement of sentence and cross-appeal filed by the accused persons for setting aside the order of conviction and sentence. 6. Mr.Mohite, advocate appearing for the accused has assailed the finding of guilt recorded by the court below on the argument that the trial court has essentially placed reliance on the evidence of Kusum P.W.16. In his submission, the said witness Kusum P.W.16 is neither a natural witness nor trustworthy. She has made several material improvements in her evidence. Besides, her evidence was not corroborated. As she is the only witness who has stood by the prosecution case, contends learned Counsel, her version will have to be considered cautiously. While appreciating her evidence, court 11 will have to keep in mind the defence version that the real reason for Kusum P.W. 16 to depose against the accused is on account of property dispute. She was claiming separate share in the joint property and was supported by her uncle P.W.17. Moreover, the prosecution has not examined police patil and no reason is forthcoming for that lapse, which is fatal to the prosecution case. So also the prosecution has not examined Chandrabhaga Bai who was another material witness available to the prosecution and non-examination of such material witness is fatal. It is then contended that even if the version of Kusum P.W.16 was to be accepted in part as has been done by the trial court, even then, it will be of no assistance to the prosecution to prove the guilt against the respective accused for offence under section 304(II) r/w 34 of the I.P.C. There is no evidence whatsoever as to the role played by each of the accused. No overt act, after locking of the door from inside is attributed. There is no evidence as to what really transpired inside the room and who was responsible for giving excessive beating to Ashok, who succumbed to such injury. It is then contended that even the conclusion reached by the trial court with regard to the other offences under section 342 and 201 r/w 34 of the I.P.C. cannot be sustained. 12 There is not even remote evidence of dead body having been secretly disposed of or with undue haste as has been found by the trial court. In any case, the sentence imposed by the trial court is sufficient for the reasons recorded by the trial court which is just and appropriate. It is submitted that the court may take lenient view in the facts of the present case, as the alleged offence has taken place on 13th April, 1984 and over 20 years have already elapsed. Two accused have reached more than 70 years of age. One of the accused is already dead. Taking over all view of the matter, contends the counsel for the accused, this court should be slow in enhancing the quantum of sentence imposed by the trial court. 7. The learned APP on the other hand has supported the findings reached by the trial court and was at pains to contend that the sentence imposed by the trial court is very nominal and has resulted in miscrriage of justice. 8. Having considered the rival submissions and going through the records of the case, the first question, I think, which needs to be addressed is, whether the evidence of Kusum P.W.16 will have to be accepted as a whole or otherwise. In other words, 13 whether the prosecution witness Kusum P.W. 16 can be said to be a natural and trustworthy witness or whether her entire or part version should be discarded. From the evidence which has come on record, it is more than clear that Kusum P.W. 16 was present at the scene of offence at the relevant time. This finding reached by the trial court is unexceptionable. Kusum P.W.16, in her evidence has deposed about the circumstances in which the incident occurred. She has stated that her husband Ashok after having food had gone to Shegaon, Pandewadi in the afternoon alongwith their son Vijay and Sunanda’s son Jitendra to deliver shevga to his sister Mangala. He went on foot to Pandewadi. At the relevant time her son Vijay was one year old and Jitendra was four years old. When Ashok returned back at about 4.30 p.m., Sunanda started abusing him as to why he had taken her son Jitendra to Pandewadi. She then deposed that Ashok was upset by the behaviour of Sunanda. On account of which he demanded match box from her, to enable him to set the stack lying in the court yard on fire. When Kusum did not respond, Ashok himself brought the match box and set the stack lying in the court yard on fire. At that time, Sunanda, Chandrabaga, Accused Shamrao, Accused Keshav and Accused Baburao alongwith 25 to 30 villagers came 14 on the scene and extinguished the fire. She has then stated that Shamrao A-1, Baburao A-2, Keshav A-4 caught hold of Ashok and started scolding him as to whether he wanted to kill them and set the house on fire. She then deposes that her father-in-law, mother-in-law and Keshav pacified Ashok. The matter did not end at that but escalated on the arrival of Bhanudas A-5 and Ramdas A-3 who came from Wai. They arrived at the scene at around 6.30 p.m. They also shouted at Ashok and started giving him fist blows. She then deposes that thereafter all the accused took Ashok dragging to the kitchen room and chained the door of the kitchen from inside. So far as this version of Kusum is concerned, the same has been accepted by the trial Court and in my view, justly. The defence has cross-examined Kusum. Only suggestion is given, without any tangible evidence to show that Kusum was not present at the scene but elsewhere. In my opinion, from the tenor of cross-examination, it is possible to take the view that the presence of Kusum at the relevant time at the scene of offence is not in doubt. To illustrate this point, it will be useful to refer to paragraph-11 which is part of the cross-examination, where the witness has stated that she was standing in the Eastern courtyard when her husband went to the 15 rear courtyard of Shamrao. She then spoke about how she reacted when the stack in the court yard was set on fire. She has further deposed that at the relevant time, she was sitting in the courtyard alongwith her son when Bhanudas came from Wai and made enquiry with Ashok. She has answered the questions put in the cross-examination as follows: "It is true that my husband was abusing accused Bhanudas and Ramdas when they were assaulting my husband Ashok ...." She has then deposed that it is true that accused made her to sit in the house of Shamrao-cousin father-in-law and that the scene of offence was not visible from the house of accused Shamrao. The accused made her sit in house of the accused facing to West and also on the night of Friday. Suffice it to observe that from the tenor of cross-examination the presence of Kusum P.W.16 at the scene of offence at the relevant time is not seriously questioned. I am therefore, in agreement with the conclusion reached by the Trial Court that the presence of Kusum P.W.16 on the scene of offence at the relevant time will have to be accepted. 16 9. Once the presence of Kusum P.W.16 is accepted, the next question that arises for our consideration is whether the version of P.W.16 will have to be rejected as untrustworthy as a whole or can be accepted in part. The trial Court after appreciating her version has found that her presence on the scene of offence at the relevant time appears to be natural. The trial court has also accepted her version up to the events that unfolded of Ashok being dragged inside the house by all the accused and locking of the door from inside by the accused and of continued beating. I am in agreement with the said opinion recorded by the trial court. It is not possible to accept the argument, as is canvassed on behalf of the accused that, even that version of Kusum P.W. 16 will have to be discarded. Indeed, the evidence of Kusum P.W.16 is the prime evidence available on record to proceed against the accused, that however will make no difference to the ultimate conclusion to be reached, as noted by the trial Court. As Kusum P.W.16 is the only eye witness, her version will have to be examined by the Court cautiously. This is precisely what the trial Court has done. I see no reason to depart from the approach of the trial Court of accepting the evidence of Kusum P.W.16 upto the stage of dragging of her 17 husband Ashok by all the accused inside the house and locking of the door from inside whereafter Ashok kept on screaming for help on being mercilessly beaten till became silent and after sometime the accused persons came out of the room when Ashok was found lying on the floor. I am also in agreement with the finding recorded by the trial Court that, even if that version of Kusum P.W.16 was to be accepted, her claim of having seen the actual assault by the accused on Ashok from the northern window in the northern wall will have to be rejected. Because, in the cross-examination, in paragraph -11, she has admitted that the scene of offence was not visible from the house of Accused Shamarao. Her case in the evidence is that she was made to sit in the house of accused Shamrao when Ashok was dragged inside the room by the Accused. In paragraph-12 she has admitted that it is true that police asked her where she was sitting and told her that scene of offence was not visible from the house of accused Shamrao. Her supplementary statement was recorded after 10 days from lodging of F.I.R., wherein she has mentioned that she was not in the house of accused Shamrao when her husband was beaten, but she was in the northern cattle shed. Interestingly, in the said paragraph-12 she has admitted that the scene of 18 offence was not visible even from the northern cattle shed of the accused Shamrao. Thus understood, the trial Court has rightly rejected her claim that she has had the opportunity to see the accused persons assaulting her husband Ashok. I am in agreement with the said finding reached by the trial Court. 10. The next question is whether the entire prosecution case would fail if the other part of the evidence of Kusum P.W.16 was to be discarded. In my opinion, this issue will have to be answered against the accused and in favour of the prosecution. For, the trial Court has rightly proceeded to record the finding that the prosecution has proved the factum of commission of offence. The trial court not only adverted to the evidence of Kusum P.W.16 to reach at this conclusion, but also adverted to the evidence of P.W. 2 who has established strong circumstances of commission of offence. Blood stains were found on the southern wall of the kitchen and brass vessels and scraper article Nos. 1 and 2 and also on the floor and southern wall of the kitchen having been washed with cow-dunk recently to erase the blood stains. The trial Court has also taken into account the circumstance of false message being given to the relative of Kusum P.W.16 that Ashok died due to 19 consumption of alcohol on the next day of the incident and before that the dead body of Ashok came to be disposed