2009 ALL MR (Cri) 3334
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

V.R. KINGAONKAR, J.

Ashruba S/O. Govindrao Solunke & Ors.Vs.State Of Maharashtra

Criminal Appeal No.294 of 1997

14th October, 2009

Petitioner Counsel: Mr. S. M. GODSAY
Respondent Counsel: Mr. K. S. PATIL

(A) Evidence Act (1872), S.3 - Appreciation of evidence - Discrepancies in evidence of prosecution witnesses - Minor discrepancies cannot be given any importance. (Para 12)

(B) Evidence Act (1872), S.3 - Appreciation of evidence - Evidence of injured witnesses - There is no rule of law that evidence of complainant or injured must be corroborated by other independent evidence - Conviction can be based on sole testimony of any injured or complainant if it inspires the confidence - Version of an injured witness stands on better footings than an ordinary witness - Ordinarily, injured witness is unlikely to allow real assailant to go scot-free. 2003 Cri.L.J. 2502 - Rel. on. (Para 14)

Cases Cited:
State of H.P. Vs. Omprakash, 2003 Cri.L.J. 2502 [Para 14]


JUDGMENT

JUDGMENT :- Challenge in this appeal is to judgment rendered by learned IInd Additional Sessions Judge, Beed, in Sessions Case No.29/1996 whereby and whereunder the appellants have been convicted for offences punishable under sections 147, 148, 324 read with section 149 and section 452 read with section 149 of the I.P. Code. They have been sentenced to suffer rigorous imprisonment for one (1) year and to pay fine of Rs.200/- each, in default to suffer rigorous imprisonment for two (2) months cumulatively for the offences punishable under sections 147 and 148 of the I.P. Code. They have been further sentenced to suffer rigorous imprisonment for two (2) years and to pay fine of Rs.300/-, in default to suffer rigorous imprisonment for three (3) months for the offence punishable under section 324 read with section 149 of the I.P. Code and have been sentenced to suffer rigorous imprisonment for three (3) years and to pay fine of Rs.500/, each, in default to suffer rigorous imprisonment for four (4) months for the offence punishable under section 452 read with section 149 of the I.P. Code. Besides, appellant No.3 Madhukar (original accused No.3) is also convicted for the offence punishable under section 304, Part-II of the I.P. Code and sentenced to suffer rigorous imprisonment for five (5) years and to pay fine of Rs.1,000/, in default to suffer rigorous imprisonment for six (6) months.

2. The prosecution case, stated briefly, is that on 20th June, 1995, appellant No.1 Ashruba had sought hand-loan of Rs.1,000/- from informant - PW-Ramrao. The latter expressed inability to lend the amount. In the next morning, his father went to fetch water from well situated in the agricultural land of appellant No.1 Ashruba around 7 a.m. Then, appellant No.1 Ashruba told him that since money was not lent, he should not draw water of the well. At about 8 a.m., after PW-Ramrao had returned home, the appellants went to his house. They were armed with sticks. They were abusing him and his father. On seeing them running towards his house with sticks in their hands, PW-Ramrao and his father went inside the house and closed the two (2) entrances available to enter the house property. There was roof of corrugated zinc sheets on his residential premises. Appellant No.1 Ashruba and appellant No.6 Vishwanath climbed on the roof top. They pulled away a couple of corrugated zinc sheets. They dropped themselves through the slit inside the house. Father of PW-Ramrao got removed the latch of one of the entrance doors. All of a sudden, the appellants No. 2 to 5 barged inside the house. They started beating PW-Ramrao and other inmates of the house. They indiscriminately gave blows of sticks on the persons of the inmates of the house. In the course of beating, appellant No. 3 Madhukar dealt severe blow of the stick on head of deceased Bhanudas who was the uncle of PW-Ramrao. They also assaulted his sister and brother. Thus, they had committed the house trespass with preparation to assault PW-Ramrao and his family members. They were armed with sticks and indiscriminately got wounded PW-Ramrao, PW-Bhagwan, his father, PW-Pandit, PW-Pramila, PW-Hanumant and deceased Bhanudas. They received bleeding injuries due to the assault mounted by the appellants. After a short-while, PW-Ramrao went to the Police Station at Majalgaon. He gave information regarding the incident to the police. The Police Station House Officer deputed three (3) police constables with him. They went to the village locality of Nipani-Takli alongwith PW-Ramrao. The injured persons including injured Bhanudas were rushed to the Primary Health Centre at Majalgaon in the police jeep vehicle. They were subsequently sent to the Civil Hospital at Beed. After about one week, injured Bhanudas succumbed to the injuries received by him, while he was under medical treatment in the Civil Hospital. On basis of the FIR (Exh.39) lodged by PW-Ramrao, Crime No.80/1995 was registered at the Police Station, Majalgaon against the appellants for the offences punishable under sections 147, 148, 149, 452, 326, 324 and 323 of the I.P. Code. After the death of Bhanudas, the offence punishable under section 302 of the I.P. Code was added during course of the investigation.

3. The appellants were arrested. On basis of their confessional statements, the sticks, which were said to be the weapons of the assault, were seized. The blood stained clothes of injured Bhanudas and others were also recovered under separate seizure panchanamas. The statements of injured and other witnesses were recorded. On basis of the material gathered during course of the investigation, the appellants were charge-sheeted for the offences for which the crime was registered against them.

4. The appellants pleaded "not guilty" to the charge (Exh.17) framed against them. Their defence was of simple denial. It was suggested that due to accidental causes, the injured witnesses had received the injuries. It was further suggested that due to property dispute and factions of rivalry in the village, the appellants were framed in a false case.

5. At the trial, the prosecution examined in all seventeen (17) witnesses in support of its case. In addition, several documents were placed on record, including the spot panchanama, the medico-legal certificates, seizure panchanamas, etc.. On assessment of the evidence tendered by the prosecution, the learned Sessions Judge held that only appellant No.3 Madhukar was author of head injury caused to deceased Bhanudas. The learned Sessions Judge held that the appellants had no enmity with deceased Bhanudas. It is further held that appellant No.3 Madhukar could have the knowledge that the fatal blow on the head of Bhanudas could cause his death though there was no intention to cause the death. The learned Sessions Judge further held that the appellants committed offence of rioting, committed criminal trespass in the house of PW-Ramrao and were prepared with arms to cause injury to him and other inmates of the house and actually assaulted them. The learned Sessions Judge further came to the conclusion that the appellants voluntarily caused hurt to PW-Ramrao, PW-Bhanudas and PW-Pramila and others by means of the sticks which could be regarded as dangerous weapons. In keeping with such findings, the appellants came to be convicted and sentenced as described hereinabove.

6. Heard learned counsel for the appellants and learned A.P.P..

7. The following points need determination.

(i) Whether the appellants were members of an unlawful assembly, which was formed in the morning of 21st June, 1995, having common object to assault PW-Ramrao and his family members ?

(ii) Whether the appellants committed criminal trespass with preparation to cause injury to PW-Ramrao and other injured persons including PW-Bhanudas, PW-Pramila and others in the relevant morning ?

(iii) Whether the appellants voluntarily caused hurt to PW-Ramrao, PW-Bhanudas, PW-Pramila and others by means of sticks in furtherance of their common object ?

(iv) Whether appellant No.3 Madhukar intentionally assaulted deceased Bhanudas by means of a stick with knowledge that due to the assault of stick on his head, said Bhanudas would die and, therefore, he has been rightly convicted for the offence punishable under section 304, Part-II of the I.P. Code ?

8. At the outset, it may be stated that all the panch witnesses examined by the prosecution were declared hostile. These witnesses viz. PW-1 Arjun, PW-2 Tanaji, PW-3 Motiram, PW-4 Ghanashyam, PW-5 Sukhdeo, PW-6 Bhagwan and PW-7 Vimal are the panch witnesses in respect of the spot panchanama, seizure panchanama regarding clothes of injured PW-Pandit and others, arrest panchanamas, panchanamas regarding recovery of sticks, at instance of the appellants and the panchanamas regarding seizure of blood stained clothes of PW-8 Ramrao and others. The inquest panchanama (Exh.26) is an admitted document. The recitals of the inquest panchanama would show that there was no visible injury found on person of deceased Bhanudas. The panchas noticed that deceased Bhanudas was aged about 70 years and mere examination of the dead body could not give any clue as regards the cause of his death. The absence of any visible injury on his person is rather a significant fact in as much as PW-15 Dr. Kakde deposed that there were five (5) injuries found on person of said Bhanudas. They were described as follows :

(i) Contusion on face, supra orbital region of size 2 x 2 cm. irregular in margin.

(ii) Contusion on left hand frontal surface of size 3 cm x 4 cm irregular in margin.

(iii) Contusion on right knee anterior surface of size 2 cm x 2 cm irregular in margin.

(iv) Contusion on left thigh middle 1/3rd region of size 3 cm x 3 cm irregular in margin.

(v) C.L.W. (contused lacerated wound) on nose right side of the spectum of size 2 cm x 2 cm irregular in margin.

It is important to notice that contusion on the face of deceased Bhanudas was found to be unrelated to the cause of his death. There was no corresponding injury found during the post-mortem notes drawn by PW-11 Dr. Kulkarni.

9. The version of PW-Dr. Kulkarni purports to show that he carried out post-mortem on dead body of Bhanudas on 28th June, 1995. His version reveals that it was only after internal examination of the skull that he noticed haematoma of 6 cm x 4 cm under the scalp. It was noticed that there was fracture of right parietal bone in oblique direction. There was haematoma over right parietal lobe of size 3 cm x 3 cm and the brain was found congested. In the opinion of PW-Dr. Kulkarni, the death of Bhanudas was due to cardio respiratory failure as a result of the head injury and particularly, due to fracture of right parietal bone. He corroborated the post-mortem notes (Exh.46). His cross-examination reveals that the injury certificate issued by PW-Dr. Kakde does not show any injury which could be co-related with the internal fracture of the right parietal bone which allegedly resulted into death of Bhanudas. He admits that the relevant injuries mentioned in the medico-legal certificate (Exh.48) have no concern with the cause of death stated in the post-mortem report (Exh.46). He further admits, unequivocally, that if a person falls on rough surface and the right parietal region comes into contact of rough surface, the internal fracture referred by him is possible. It is stated by him that if the injuries are simple, external features of the injury could disappear within seven (7) days. Even though the appearance of the first four (4) injuries as shown in the medico-legal certificate (Exh.48) could vanish due to the lapse of about one weeks period from date of the first medical examination of deceased Bhanudas and the postmortem notes, then also, it is difficult to say that a contused lacerated wound found on his nose could have disappeared. Under these circumstances, it will have to be said that there is material inconsistency between the medical opinions of PW-Dr. Kulkarni and PW-Dr. Kakde as regards the nature of injuries found on person of deceased Bhanudas. As stated before, the inquest panchanama (Exh.26) does not show any external injury on the person of deceased Bhanudas.

10. It is pertinent to notice that deceased Bhanudas was old aged person of 70 years. His constitution was weak. It is of common knowledge that in the old-age, the bones become brittle. It is probable that during the course of assault, he had fallen down and, therefore, the internal injury to skull and the right parietal bone had occurred. It is equally probable that during course of the assault mounted by the appellants in the relevant morning, deceased Bhanudas had received blow of a stick on his head and though that was not a violent blow, yet, due to old-age, the internal injury had occurred on account of the fracture of right parietal bone. Admittedly, deceased Bhanudas had no direct concern with the prelude of the incident. The incident sparked off due to obstruction caused by PW-Pramila to the wife and sister of appellant No.4 Dhondiram while they were passing through her agricultural land in that morning. There was no enmity between the appellants and deceased Bhanudas. It is nobody's case that deceased Bhanudas was assaulted by the appellants or any of them due to some ill-will against him or in order to avenge upon him. He was residing in adjoining house. It has come in the evidence of PW-9 Ramrao that casually, deceased Bhanudas, who was his uncle, had been to his house in the relevant morning. It is more probable that appellant No.3 Madhukar could not have contemplated that a single blow of stick on head of Bhanudas could prove to be fatal one. I mean to say, he had no intention to cause death of Bhanudas nor had the knowledge that his act will result into death of Bhanudas. Obviously, learned Additional Sessions Judge committed patent error while convicting him of the offence punishable under section 304, Part-II of the I.P. Code. The said order of conviction is based on conjectures and merely because subsequently, Bhanudas died after about eight (8) days of the incident in question. There appears no reasonable nexus between the cause of the death and the causation preceding the death. Needless to say, the impugned order of conviction rendered against appellant No.3 Madhukar for offence punishable under section 304. Part-II of the I.P. Code is unsustainable and must be interfered with.

11. Coming to the version of PW-8 Ramrao, it is explicit that there was bad blood between his family members and the appellants due to their purchases of agricultural lands which the appellants desired to purchase. His version reveals that appellant No.1 Ashruba had objected him in the relevant morning while drawing water of the well situated in his land for the reason that an amount of Rs.1,000/- was not lent to him in the earlier evening. What transpires from his version and recitals of the FIR (Exh.39) is that there was ill-will nurtured by the appellants against PW-Ramrao and his family members due to their having purchased the parcels of the agricultural lands from one Limbaji Solunke. On 20th June, 1995, appellant No.1 Ashruba had asked for hand-loan of Rs.1,000/- as he wanted to purchase seeds. However, PW-Ramrao expressed his inability to give the amount due to his financial difficulties. On the next day i.e. 21st June, 1995, appellant No.1 Ashruba objected drawing of well water by PW-Ramrao of the well situated in his land due to the incident of earlier day because the latter had not lent him money when required. To retaliate, the woman folks from family members of the appellants were intercepted by PW-Pramila, who is the sister of complainant PW-Ramrao and they were asked not to go through her land. That gave rise to heated reaction of the appellants. They were seen coming together towards house of PW-Ramrao. His version purports to show that all the appellants were armed with sticks. He narrated that when he and his father saw that the appellants were coming towards their house, they went inside their house and latched the doors. There are two (2) doors to the house. His version purports to show that appellant No.1 Ashruba and appellant No.6 Vishwanath climbed on the roof of the house consisting of corrugated zinc sheets. The said accused persons pulled away two (2) zinc sheets and created a slit through which they dropped on the floor of the house. Thereafter, they opened the door of the house while assaulting PW-Ramrao and other inmates of the house. The remaining four (4) appellants thereafter entered the house and started indiscriminately beating the inmates of the house. The version of PW-Ramrao shows that he concealed himself under a sewing machine. He is a tailor. He narrated as to how his father and other injured persons were assaulted by the appellants in the relevant morning. His version reveals that he left the home after the appellants had gone away. He thereafter went to Majalgaon Police Station on foot. He returned to the village alongwith 3 to 4 police constables. The injured PW-Bhagwan, PW-Pramila, PW-Pandit and PW-Hanumant were got boarded in the police jeep vehicle. They were shifted to the Primary Health Centre, Majalgaon in the same noon. The Medical Officer - PW-Dr. Kakde examined the injured persons in the same noon at about 1 p.m. Thus, there was prompt reporting of the incident to the police. There was prompt clinical examination of the injured persons. The FIR (Exh.39) was registered at 13.45 hours. Still, however, much capital cannot be made out of the delay in lodging of the FIR. For, when such question was put to PW-Ramrao, he offered a reasonable explanation. He stated that he did not give complaint to the police immediately after reaching Majalgaon Police Station because he wanted to take care of injured members of the family as first measure. Ofcourse, it was his first priority to ensure that the injured witnesses are provided immediate medical treatment. The conduct of PW-Ramrao appears to be free from suspicion. He corroborates recitals of the FIR (Exh.39). He had produced blood stained Nehru shirt of his father (PW Bhagwan) and banian of deceased Bhanudas during course of the investigation. He identified the said clothes (article Nos.7 and 8) as the same one which were put on by his father and deceased Bhanudas, respectively. Nothing of much significance could be gathered from his cross-examination. No doubt, there are discrepancies in his statement regarding genesis of the incident. The FIR does not show that wife and sister of appellant No.4 Dhondiram were intercepted by PW-Pramila while they were going through her land in the relevant morning. There are some omissions in the FIR regarding the details of the incident narrated by him. However, I find that the said omissions are of minor nature. The core of his testimony has remained unimpeached inspite of searching cross-examination.

12. The versions of PW-9 Hanumant, PW-10 Pandit, PW-12 Bhagwan and PW-14 Pramila lend corroboration to the prosecution case. They have consistently deposed as to how all the appellants rushed to the house of PW-Ramrao in the relevant morning. They have also consistently narrated the manner in which the appellants entered the house of PW-Ramrao and PW-Bhagwan by making forcible entry from the roof top after pulling away two (2) zinc sheets and creating a space through which appellant No.1 Ashruba and appellant No.6 Vishwanath had dropped themselves. It is true that there are some minor discrepancies in their versions as regards the details of the incident. For example, PW-Ramrao states that the appellants initially pelted stones from outside on the entrance door which was closed by him. However, PW-Hanumant states that they were giving kicks on the door. It is difficult to give any importance to such minor discrepancies. One can not be oblivious of the fact that both the witnesses were inside the house and could not have seen, in fact, whether there was pelting of stones from outside or kicking of the door. The version of PW-Hanumant reveals that he was then a student and was attending 8th standard in a school situated at village Hole. His age was 13 years at the relevant time. It is not expected that such a minor witness would give minute details of the incident. It is but natural that he and the other victims of the assault were fable blasted due to the sudden assault mounted by the appellants. According to PW-Hanumant, he was playing pebbles in the courtyard of the house of PW-Ramrao before the commencement of the incident. He deposed that he had shouted when he saw the appellants running towards the house of PW-Ramrao. He admits that due to the shouting, some villagers had gathered there. He further admits that those persons who were present at the spot did not attempt to intervene.

13. Counsel for the appellants would submit that non-examination of the independent witnesses would give rise to serious doubt about credibility of the above mentioned interested witnesses. He would submit that the discrepancies and omissions found in the statements of PW-Hanumant, PW-Pandit, PW-Bhagwan and PW-Pramila would give rise to a reasonable doubt regarding complicity of the appellants. He invited my attention to some of the omissions which have been brought on surface of the record. He urged to give benefit of reasonable doubt to the appellants in view of the discrepancies and the omissions pointed out by him. I find it difficult to countenance the argument. For, all the four (4) witnesses named above were found to have received injuries. The FIR was lodged with promptitude. The witnesses were examined before the Sessions Court after about a couple of years of the incident. It is but natural that their memory regarding the happening of the incident was faded. Secondly, due to suddenness of the incident of assault, the reactions of such witnesses could be different. I mean to say, they might have deposed about the role of each of the appellant as per their perception and memory.

14. It is well settled that version of an injured witness stands on better footings than an ordinary witness. Ordinarily, an injured witness is unlikely to allow the real assailant to go scot-free. The incident did occur in the morning time around 8 a.m.. Obviously, there was no likelihood of mistaken identity. There is no immutable rule that evidence of a closely related witness should be mechanically discarded. There is no rule of law that evidence of complainant or injured must be corroborated by other independent evidence. It is well settled that conviction can be based on the sole testimony of any injured or complainant if it inspires the confidence. In "State of H.P. Vs. Omprakash" 2003 Cri.L.J. 2502, it is held that an injured cannot be said to be interested witness requiring corroboration.

15. The version of PW-Dr. Kakde reveals that he examined injured PW-12 Bhagwan at about 1 p.m. on 21st June, 1995. He noticed in all seven (7) injuries on person of PW-Bhagwan. The injuries were as follows:

(i) Contusion on left forearm, external aspect of size 2 cm x 5 cm irregular margin.

(ii) Contusion on scalp right frontal region of size 5 cm x 5 cm., irregular in margin.

(iii) Abrasion on right shoulder of size 3 cm x 3 cm irregular in margin.

(iv) Abrasion on right chest, 5th and 6th rib region of size 3 cm x 2 cm irregular in margin.

(v) Contusion on right knee of size 5 cm x 2 cm, irregular in margin.

(vi) Contusion on left knee joint of size 2 cm x 3 cm irregular in margin.

(vii) Contusion on left knee of size 2 cm x 1 cm. irregular in margin.

He issued the medico-legal certificate (Exh.54). He opined that the injury Nos.1, 2, 5, 6 and 7 could have been caused due to beating by means of sticks. He also examined injured PW-10 Pandit in the same noon at about 1.10 p.m. and noticed four contusion injuries on his person. They were as follows :

(i) Contusion on left shoulder of size 2 cm. x 2 cm. irregular in margin.

(ii) Contusion on right knee anterior aspect of size 3 cm x 3 cm, irregular in margin.

(iii) Contusion on left knee anterior aspect of size 3 cm x 3 cm, irregular in margin.

(iv) Contusion on right seen of tibia (lower part of right leg) of size 2 cm x 4 cm irregular in margin.

He issued medico-legal certificate (Exh.55) accordingly. He further examined PW-14 Pramila at about 1.15 p.m. He noticed five (5) contusion injuries on her person as shown below :

(i) Contusion on back infra scapular region, of size 5 cm x 5 cm irregular in margin.

(ii) Contusion on back infra scapular region, of size 4 cm x 4 cm irregular in margin.

(iii) Contusion on right shoulder joint of size 2 cm x 5 cm irregular in margin.

(iv) Contusion on scalp right side of size 2 cm x 3 cm irregular in margin.

(v) Contusion on right leg lower 1/3rd middle aspect of size 5 cm. x 5 cm. irregular in margin.

He issued medico-legal certificate (Exh.56) accordingly. So also, he examined PW-9 Hanumant and found two (2) contusions on his person, one on the back side of the scapular region and another on the knee. He corroborated the medico-legal certificate (Exh.57) issued by him on basis of such observations. It is to be noticed that there virtually no effective cross-examination directed against PW-Dr. Kakde. He admitted, however, that all the injuries noticed by him were simple in nature. On overall consideration of the evidence tendered by the Medical Officer, it is amply clear that the four (4) injured witnesses were victims of the assault mounted in the same morning by the appellants. There is no substantial reason to discredit their versions regarding the assault by the appellants by means of sticks and cumulatively after making forcible entry inside the house of PW-Ramrao.

16. It is not necessary to deal with remaining evidence which consists of the versions of PW-13 PSI Jadhav. He formally registered the FIR (Exh.39) in the relevant noon while was working as the Station House Officer of Majalgaon Police Station. The testimony of PW-17 PSI Babar would show the steps taken by him during course of the investigation including the seizure of blood stained clothes of the injured and deceased. He also narrated as to how the weapons of the assault i.e. the sticks were recovered on basis of statements made by the appellants. The recoveries are not corroborated by the panch witnesses nor the sticks were found to bear stains of human blood of the original attributable to the victims. Hence, such circumstantial evidence is of no much significance.

17. From the manner in which the appellants were found running towards house of PW-Ramrao, together, in a group and being armed with sticks, the only inescapable conclusion which can be drawn is that they had formed an unlawful assembly with a common object to mount assault on PW-Ramrao and his family members due to the earlier incidents and on account of the ill-will. The learned Sessions Judge has rightly convicted them for the offences punishable under section 452 read with section 149, sections 147 and 148 and section 324 read with section 149 of the I.P. Code. The sentence awarded to them is also on lower side. It is argued by learned counsel for the appellants that due to passage of long time and due to absence of intention to cause death of anyone including deceased Bhanudas, the substantive sentence may be reduced to the term already undergone by the appellants. I do not agree. For, such reduction of substantive sentence is likely to give wrong signal to the prospective assailants. The law and order situation in rural area is already becoming worst. The life of one of the victims of the assault was lost. Though appellant No.3 Madhukar could not be convicted for the offence punishable under section 304, Part-II of the I.P. Code and his act to make him liable only for conviction and sentence for offence punishable under section 324 of the I.P. Code. The excessive leniency is unwarranted in the present circumstances.

18. In the result, the appeal is partly allowed only to the extent of conviction of appellant No.3 Madhukar for offence punishable under section 304, Part-II of the I.P. Code. The order of conviction and sentence rendered against him for such offence is set aside. He stands acquitted for the offence punishable under section 304, Part-II of the I.P. Code and the excessive fine amount, if any paid by him on account of such conviction and sentence, be refunded to him.

The appeal to the extent of remaining part of the order of conviction and sentence in respect of all the appellants is dismissed. The appellants shall undergo the remaining substantive sentence and for such purpose, they shall immediately surrender before the Sessions Court. The Sessions Court shall immediately issue warrants if the appellants will not surrender and shall ensure that they would undergo the remaining substantive sentence. The compliance report be submitted by the Sessions Court to this Court within six (6) weeks after receipt of the writ.

Appeal partly allowed.