Criminal Appeal No. 471 of 1995

3rd December, 1999

Petitioner Counsel: Mr. B.G.VAIDYA
Respondent Counsel: Ms. USHA KEJRIWAL, A.P.P.

Cases Cited:
Masaltu and others Vs. The State of U.P., AIR 1965 SC 202 [Para 16]

JUDGMENT

VISHNU SAHAI, J :- Since both these appeals arise out of the same set of facts and common impugned Judgment, we are disposing them off by one Judgment.

2. Through these appeals, the appellants challenge the Judgment dated 16-9-1995 passed by the IInd Additional Sessions Judge, Nasik in Sessions Case No.33 of 1995, convicting and sentencing them in the manner stated hereinafter:-

Under Section 148 IPC to three months R.I. and to pay a fine of Rs. 200/- each in default to undergo one months R.I.; and

Under section 323 read with section 149 IPC to 15 days R.I. and to pay a fine of Rs. 100/- each in default to undergo eight days R.I.

In addition, the appellant Anil @ Anna Bansi Mokal has been convicted under Section 302 IPC and Sentenced to Undergo R.I. for life and to pay a fine of Rs. 1000/- in default to undergo 3 months R.I. The Substantive sentences of the appellants have been directed to run concurrently, on all the counts.

3. In short, the prosecution case runs as under:

About seven to eight years prior to the incident, wife of the appellant Bansi Mokal was murdered. For the same Bhaskar husband of Nanubai Mokal PW 2 was prosecuted and acquitted from the Court of Sessions. On this score, Bansi Mokal and the other appellants are said to be nursing a grudge against Bhaskar.

On 31-5-1994, at about 6 a.m. while Nanubai Mokal PW2 was sleeping in the courtyard of her house and her husband Bhaskar was sleeping in the ota of the house, the appellant Bansi Mokal came and told Bhaskar that he would avenge his wife's murder. Thereafter, all the appellants, who were armed with weapons like sticks, guptis, iron rods, came to the ota where Bhaskar was sleeping and dragged him and brought him to the court - yard. Thereafter, they inflicted blows with sticks, guptis and iron bars and felled him on the ground. Then, the appellants Anil and Popat sat on the chest of Bhaskar. Anil picked up grinding stone and hit Bhaskar with the same on his head. When Nanubai tried to rescue Bhaskar, the appellants- Popat and Hemant assaulted her with sticks and iron rods, as a result of which, she became unconscious. When she regained her consciousness, she found that blood was oozing out from the nostrils, mouth and ears of Bhaskar, and learnt that the appellants had also assaulted Shakila and her husband Farookh with iron rods, sticks and guptis and destroyed their house-hold articles.

It is pertinent to mention that apart from Nanubai Mokal, this incident was also seen by Ashok Mokal, brother of Bhaskar who lived at a distance of about 50 feet from Bhaskar's house and Dada Mokal, a neighbour of Bhaskar.

4. Evidence of Ashok Mokal PW 5, brother of the deceased Bhaskar, who resided at a distance of about 50 feet from Bhaskar's house and became hostile shows that on the morning of 31-5-1994, he heard some commotion from the house of Bhaskar and when he went there, found him unconscious. Consequently, he went to Wavi police station and informed the police, and along with the police, came to the place of the incident.

Evidence of Nanubai Mokal also shows that the police from Wavi police station came. By that time, her husband was dead. His corpse was taken to Sinner Municipal Dispensary and she went to Wavi police station where she lodged her FIR same day at 12.15 p.m. on the basis of which, PSI Kailas Gavade PW 7 registered C.R. no. 49 of 1994, against the appellants.

5. Evidence of PSI Kailas Gavade PW7 also shows that he gave letters of request for the medical officer of Sinnar Municipal Dispensary. On the basis of the said letters, the said victims were medically examined by Dr. Arvind More PW1 at 11.15 a.m. and 11.30 a.m. respectively the same day.

On the person of Farookh, the doctor found four contusions, one contused abrasion, three lacerated wounds and four linear abrasions which in his opinion were attributable to sticks, iron bars and guptis.

On the person of Nanubai, the doctor found the following two contusions:-

1. Contusion over right eye-brow laterally 4 cm x 1/2 cm. redish.

2. Contusion over the upper half of the left arm 6 cm x 2 cm redish.

In his opinion they were attributable to a hard and blunt object and were caused within six hours.

6. The autopsy on the corpse of Bhaskar Mokal was conducted between 2 to 3 p.m. on 31-5-1994 by Dr. Arvind More PW 1 who found on it the following ante - mortem injuries:-

1. Contusion over the whole right upper eye-lid, bluish-red.

2. Contusion over the whole left upper eye-lid blushi-red.

3. Contusion over the middle of the forcehead at the base of nose 2 cm x 11/2cm. oval.

4. 2 parallel black stabs over the anterior aspect of right leg, upper third, 3 cm x 1/4 cm each."

On internal examination, Dr. More found fracture of skull over mid frontal aspect of head 13" x 1/4" x 1/4" with haematoma. In his opinion, the deceased died to shock on account of head injury. He opined that the fracture of skull could be caused by the grinding stone shown to him. He stated that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death.

7. The investigation was conducted in the usual manner by PSI Kailas Gavade PW 7. He prepared the panchanama of the scene of the offence and recovered blood therefrom. He effected some recoveries on the pointing out of some of the appellants in the presence of public panchas under panchanamas. In our opinion, it is not necessary to advert to the details of those recoveries.

After completing the investigation, he submitted the charge sheet on 30-8-1994.

8. The case was committed to the Court of Sessions in the usual manner where the appellants were charged for offence punishable under section 302 read with section 149 IPC etc. They pleaded not guilty to the charges and claimed to be tried. Their defence was that of denial.

During the trial, in all the prosecution examined seven witnesses. Three of them namely Nanubai Mokal PW 2 the widow of the deceased, Ashok Mokal PW5 brother of the deceased and Dada Mokal PW 6 a neighbour of the deceased, were sought to be examined as eye-witnesses. The latter two turned hostile and when cross examined by the learned counsel for the State disowned by all those portions of the statement under section 161 Cr.P.C. wherein they had given the ocular account. The former (Nanubai Mokal PW2) stood as firm as the rock of Gibraltar and furnished clinching ocular evidence which the learned trial Judge accepted and made the basis for convicting the appellants, in the manner stated in para 1 above.

9. We have heard learned counsel for the parties. We have also perused the statements of the witnesses examined by the prosecution; the material Exhibits tendered and proved by the prosecution; the statement of the appellants recorded under section 313 Cr.P.C. and the impugned Judgment. After reflecting over the matter, we have reached the conclusion that this appeal deserves to be partly allowed in-as-much as in our view, the instant is not one of those cases which warrants imposition of a substantive sentence on the appellants, other than appellants Anil Bansi Mokal.

10. True to his customary fairness, Mr. Vaidya, learned counsel for the appellants had no compunction in urging that the master-key to the case was the evidence of Nanubai Mokal PW2, the widow of the deceased. He candidly urged that in case we believed her evidence, the correctness of the convictions of the appellants, would be rendered unassailable and if not they could not be sustained.

11. Mr. Vaidya however, gave some reasons on the basis of which, he vehemently urged as to why the evidence of Nanubai Mokal did not inspirte confidence. We would advert to them later.

12. Nanubai Mokal PW2 as is clear from para 2 of this Judgment, is the widow of the deceased and we have no difficulty in accepting her claim that she was living along with the deceased Bhaskar, who was her husband when the incident took place. She was a natural witness of the incident. She stated that on the date of the incident (31-5-1994) at about 6.a.m. ten appellants armed with iron bars, sticks and guptis came to her house in village Kolgaon-Mall Taluka Sinnar District Nasik. At that time, she was sleeping in the court-Yard of her house and her husband Bhaskar was sleeping in the ota. The appellant- Bansi nursed a grudge against her husband. For the murder of his wife, Bhaskar had been tried and acquitted. He told Bhaskar that he had come to avenge her murder. Thereafter, the appellants dragged and brought down Bhaskar from the ota: launched an assault on him with iron bars, sticks and guptis; appellants -Popat and Anil picked up a grinding stone and inflicted blows with the same on the head of Bhaskar. She stated that when she rushed to save Bhaskar, appellants Popat and Hemant inflicted blows with sticks and iron bars on her rendering her unconscious and when she regained her consciousness, she learned that Shakila and Farookh who were her neighbours, had also been assaulted by the appellants and their household articles destroyed by them. Her evidence shows that she saw blood ozing out from the nostrils, mouth and ears of her husband. Her evidence also shows that in the meantime, police of Wavi police station came; took her to the said police station where she lodged her FIR; and thereafter, she and Farookh were sent for medical examination to the Municipal Dispensary, Sinnar.

13. We have carefully scrutinised the evidence of Nanubai Mokal PW 2. As she was the wife of the deceased, the law fastened such an obligation upon us. We are however, constrained to observe that after scrutinising her evidence with necessary caution, we find that it inspires implicit confidence. As we have mentioned earlier, she was perfectly natural witness of the incident because the same took place inside her house. The manner of the assault as furnished by her namely that the appellants inflicted blows with a grinding stone on the head of the deceased is corroborated by ante-mortem injury nos.1 to 3 sustained by the deceased. The said injuries which we have quoted in extenso were on the head of the deceased and were in the candid opinion of the Autopsy Surgeon Dr. Arvind More, attributable to a grinding stone. Apart from the injuries sustained by the deceased, we find the evidence of Nanubai Mokal to be also implicitly truthful vis-a-vis her injuries. She stated that two of the appellants namely Popat and Hemant assaulted her with sticks and iron rods and as we have mentioned earlier, she sustained two contusions which in the opinion of Dr. More who medically examined her, could be caused by a hard and blunt object. It is common knowledge that sticks and iron rods will fall in the category of hard and blunt object. Her claim that she was injured at about 6 a.m. an 31/5/94 is again corroborated by the evidence of Dr. More who medically examined her on the said date at 11.30 a.m. and candidly opined that her injuries were six hours old.

Assurance to Nanubai's evidence is also lent by the circumstance that the FIR of the incident was promptly lodged. As we have seen earlier, the incident took place on 31-5-1994 at about 6 a.m. and the FIR was lodged same day at 12.15 noon. In the same, all the appellants have been named and the prosecution case has been unfolded in material aspects.

Criminal Courts attach great importance to the lodging of prompt FIR because, the same substantially eliminates chances of embellishment and concoction in prosecution case. In our view, this prompt FIR renders it very safe for us to accept Nanubai's evidence.

14. We make no bones in observing that although Nanubai Mokal PW 2 was subjected to extensive cross-examination but, nothing could be extracted therefrom which would impair her credibility in respect of the core of the prosecution case. A suggestion was given to her during the course of cross -examination that on account of pelting of stones a solitary stone struck her husband Bhaskar. We are constrained to observe that this suggestion is a tissue of lies because, a perusal of the ante-mortem injuries sustained by the deceased shows three distinct injuries on three distinct portions of his head.

15. In our view, the learned trial Judge acted correctly in accepting her evidence. She is an injured witness and we make no bones in observing that it is only when infirmities of a most aggravating nature are shown in the evidence of an injured witness, is evidence of such a witness rendered unworthy of belief. The reason, in our view, is a reason which is based on sound common - sense namely that injuries, the duration of which tallies with the medical evidence, fix the presence of such a witness and once the presence of a witness is fixed, the question which remains is only one of credibility. We have shown above that Nanubai is a credible witness.

16. We would be failing in our fairness if we do not mention some of the submissions canvassed by Mr. Vaidya, learned counsel for the appellants.

Mr. Vaidya first urged that Nanubai is an interested witness. Way back as in the year 1965 in the oft-quoted case of Masaltu and others V/s. The State of U.P. reported in AIR 1965 Supreme Court page 202, the Supreme Court held that a witness is interested, would only make the court evaluate his evidence with caution and not mechanically reject it. We have examined the evidence of Nanubai Mokal PW.2 with caution and have concluded that her evidence inspires confidence. Hence, we reject the first submission of Mr. Vaidya.

17. Mr. Vaidya next contended that Nanubai Mokal stated that the appellants assaulted the deceased Bhaskar with sticks, iron bars and guptis and no injuries attributable to them have been found on the corpse of the deceased by the autopsy surgeon. In our view, this was a loose statement given by Nanubai Mokal and too much value cannot be attached to it. At any rate, the participation of the appellants is borne out by the circumstance that twelve injuries, out of which nine were attributable to a blunt weapon and three to a pointed object were found on the person of Farukh. Dr. More PW1 categorically stated that they could be caused by sticks, iron bars and guptis. Hence, in our view, this submission also fails.

18. Mr. Vaidya thirdly urged that Farookh who was a witness whose evidence was essential to the unfolding of the narrative has not been examined by the prosecution and consequently we should draw the adverse inference provided by sub-clause (g) of section 114 of the Indian Evidence Act against the prosecution. We have no quarrel with Mr. Vaidya that it would have been decidedly better had the prosecution examined Farookh but, we have quarrel with him when he urges that his examination is fatal to the prosecution. In our view, since the evidence of Nanubai Mokal PW 2 is credible and can be made a sound basis for maintaining the conviction of the appellants, non-examination of Farookh in the instant case does not prejudice the prosecution case.

19. Mr. Vaidya fourthly contended that the offence made out against the appellant - Anil would be one which fall within the four corners of section 304(1) or (2) of IPC and the learned trial Judge erred in convicting him for an offence under section 302 IPC. We regret that we find the said contention to be devoid of substance. In our view, the act of the appellant Anil would be squarely covered by clause thirdly of section 300 IPC the breach of which is punishable under section 302 IPC. Clause thirdly of section 300 IPC provides that culpable homicide is murder if the act "is done with an intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.." A perusal of the said clause would show that two pre-requisites have to be satisfied before it can be invoked:-

(a) there should be intention to inflict the injury inflicted (in contra -distinction to the said injury being accidental ) and

(b) the injury inflicted should be sufficient in the ordinary course of nature to cause death.

In our view, the evidence of Nanubai Mokal and Dr. Arvind More unequivocally establishes that both the pre-requisites are satisfied.

That the appellant - Anil intentionally inflicted blows with a grinding stone on the head of the deceased Bhaskar, is clear from the evidence of Nanubai Mokal who stated in her examination - in -chief in para 2 thus:

"Anil picked up Art-6 Grinding Stone (pata) and hit my husband on his head with it."

That the said injury was sufficient in the ordinary course of nature to cause death is clear from the evidence of Dr. More, the Autopsy Surgeon who candidly and in no uncertain terms stated in his examination -in-chief, in para 5 that the injuries suffered by the deceased on his head were sufficient in the ordinary course of nature to cause death.

The instant case in our view, affords a tailor - made illustration of the application of clause thirdly of section 300 IPC. Hence, we reject this submission also.

20. Mr. Vaidya finally urged that at any rate, since the incident took place more than five years ago, and the appellants, other than Anil have been sentenced to undergo a cumulative substantive sentence of three months R.I. and there is nothing to indicate that they have any adverse criminal history, their substantive sentences be reduced to the period already undergone and their sentence of fine be maintained, we find merit in this submission and accept it.

21. In the result:-

(A) Criminal Appeal No. 471/1995

is partly allowed. Although we uphold the conviction of the appellants (1) Balu Bansi Mokal (2) Popat Kashinath Mokal (3) Ashok Baburao Mokal (4) Eknath Ravba Mokal (5) Chandrakant Bansi Mokal (6) Sampat Kisan Mokal (7) Bansi Gangaram Mokal (8) Hemant Eknath Mokal and (9) Ratnakar Eknath Mokal for offences punishable under section 148 and 323 read with section 149 IPC and their sentences of fine and that in its default thereunder, but we reduce their substantive sentences thereunder to the period already undergone by them. The said appellants are on bail and in case if they have not paid the fine imposed by the trial court, shall pay the same within two months from today. In case they pay the fine, their bail bonds shall stand cancelled and sureties discharged. If they fail to deposit the said fine, they would undergo the sentence in default of payment of fine imposed by the court below. In case the fine has not been deposited, the same shall be deposited within the period stipulated above in the trial Court, which shall accept the same on production of a certified copy of our Judgment, which in case an application is made by the learned counsel for the parties, shall be issued to them within a period of three weeks from today.

(B) Criminal Appeal No. 486/1995 preferred by the appellant - Anil @ Anna Bansi Mokal is dismissed. His convictions and sentences on all the counts are confirmed. He is in jail and shall remain there till he serves out his sentence.

Order accordingly