2009 ALL MR (Cri) 1128
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
N.V. DABHOLKAR AND N.D. DESHPANDE, JJ.
Parasram S/O. Baliram Ingole Vs. State Of Maharashtra
Criminal Appeal No.158 of 2007
4th March, 2009
Petitioner Counsel: Shri. V. N. DAMLE,S/Shri. A. H. KAPADIA , H. F. PAWAR
Respondent Counsel: Shri. N. N. JADHAV
Penal Code (1860), S.302 - Criminal P.C. (1973), S.154 - First information report - Delay - Murder case - Complaint recorded in hospital as per say of brother of deceased at first instance by a police officer - Complaint disclosing name of assailant, held, cannot be tainted for "Delayed F.I.R." so as to discredit the prosecution story or to diminish the credibility and veracity of eye-witness.
In the present case, it goes unchallenged that immediately after the deadly assault the injured Ramesh was removed to Parbhani from village Sadegaon and was admitted in about 12.30 p.m. and he succumbed to the injuries at about 5.15 p.m. The entry regarding M.L.C. was taken at Nanalpeth Police Station at about 5.25 p.m. immediately, on receiving information by Hospital authority vide Exh.31. At the behest of Nanalpeth Police Station, A.S.I. Abdul Wahid Sattar Shaikh (P.W.3) made inquest by going to postmortem room of the hospital. This evidence is also not under serious challenge by the defence. Then A.S.I. Abdul Wahid Sattar Shaikh was the Police Officer on duty at Police Chowki of hospital, recorded complaint (Exh.29) of brother Dnyaneshwar (P.W.2) against assailants by names. It was recorded about the same time when post mortem was conducted. Though no time is mentioned in his statement, but it was recorded in the hospital on the same evening when A.S.I. Abdul Wahid Shaikh Sattar approached the complainant, who was present in the hospital since 1.00 p.m. and seen at the time of post mortem. So also, father of the deceased was also present. His statement was treated as complaint against the appellant as assailant and also Sakharam's name was disclosed, with necessary details of actual assault and other events since morning. Therefore, such complaint recorded in the hospital as per say of brother at first instance by a police officer disclosing name of the assailant cannot be tainted for "Delayed F.I.R." so as to discredit the prosecution story or to diminish the credibility and veracity of eye witness. [Para 25,26]
Ram Sanjiwan Singh Vs. State of Bihar, AIR 1996 SC 3265 [Para 24]
N. D. DESHPANDE, J.:- This appeal is directed against the judgment and order of conviction, dated 15.3.2007, passed by learned Adhoc Additional Sessions Judge-2, Parbhani in Sessions Trial No.32/2006. The appellant was held guilty under Section 302 of the Indian Penal Code and was sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default to suffer S.I. for three months for committing murder of one Ramesh Sakharam Dube, resident of village Sadegaon.
2. The appellant, who is original accused No.1, alone was convicted though jointly tried with his wife named Phulabai (original accused No.3) and another accused named Sakharam Ghodke (accused No.2) under Section 302 read with Section 34 of the Indian Penal Code. Since accused Phulabai and Sakharam Ghodke were acquitted by the learned trial Court, appellant Parasram alone preferred this appeal. He was found guilty for stabbing death of Ramesh Dube, aged about 27 years, on 20.12.2005 in a scuffle which took place at about 11.30 a.m., near Shiv Mandir and Government Dispensary along the road side, in Village-Sadegaon, Taluka-Parbhani.
3. Victim Ramesh Dube (the deceased) was jointly residing with his elder brother Dnyaneshwar (P.W.2), his wife Minakshi (P.W.4) and brother Gangadhar at village Sadegaon. They are agriculturists and were also cultivating a piece of land of Laxman on 'batai' terms (crop-sharing agreement) in addition to their own land. At the relevant time, complainant Dnyaneshwar's crop of gram was standing in the field of Laxman.
4. It was alleged that, there was a boundary dispute and quarrel between Sakharam (accused No.2) and Laxman in respect of the said field where the crop of complainant Dnyaneshwar was standing. Dnyaneshwar (P.W.2) and Ramesh (deceased) had noticed considerable damage to their crop and suspected about theft of crop and, therefore from 2-3 days they were taking rounds in early morning to check theft of gram crop.
5. According to the prosecution, on 20.12.2005 in early morning around 7.00 a.m., they found Phulabai (appellant's wife) with another woman removing gram leaves and so they were questioned by the complainant. They were driven out of the field forcibly and during altercation, Phulabai was beaten with a stick by Ramesh (deceased). Both brothers came home and narrated the said incident to Minakshi (P.W.4), wife of the complainant on their return. At the same time, Minakshi (P.W.4) reminded them about 'Tervi' programme at the house of Ramprasad Dube and they were required for catering to feed all those who were expected amongst relations for 'Tervi' to observe 13th day of deceased father of Ramprasad Dube. So, Dnyaneshwar (P.W.2) and his brother Ramesh (victim) left the house immediately and joined others for cooking in the house of Ramprasad Dube.
6. Accused/appellant Parasram along with his wife Phulabai went to the house of Dnyaneshwar (P.W.2) at about 10.00 a.m. in search of Ramesh (deceased) who had beaten Phulabai with a stick. They did not find him at home and when enquired with Minakshi (P.W.4), wife of Dnyaneshwar, they were told that both had gone to the house of Ramprasad Dube for Tervi of his father. The appellant and his wife left the house of complainant Dnyaneshwar after half an hour. While leaving, he demanded Rs.500/- for treatment of his injured wife and abused Ramesh in filthy words and also threatened him of dire consequences before Minakshi (P.W.4).
7. After some time at about 11.00 a.m., appellant Parasram along with Sakharam (original accused No.2) went to the house of Ramprasad Dube in search of Ramesh. He was busy in cooking. Ramesh was asked to come out of the house. Dnyaneshwar (P.W.2) was also busy in cooking and, therefore, Ramesh (deceased) expressed his liability to join them saying that the cooking would be delayed. However, appellant forced him to come along with him saying that he would be back within 5 minutes. Then appellant Parasram and Sakharam were seen talking with Ramesh outside the house of Ramprasad Dube. Appellant had put his hand on shoulder of Ramesh and then took him towards Government Dispensary before Dnyaneshwar (P.W.2).
8. When they reached near Government Dispensary, scuffle took place. During scuffle, Sakharam caught hold the right hand of Ramesh and appellant Parasram was shouting loudly and abusing Ramesh over the incident of beating to Phulabai with a stick in the morning and preventing them from collecting gram crop. Therefore, complainant Dnyaneshwar (P.W.2), Eknath Nayak (P.W.5) and Rajabhau Nayak rushed in that direction for rescuing Ramesh from the hands of appellant Parasram and Sakharam. They saw Parasram with knife in his right hand and giving its blow on the chest on the right side, second blow on the left side and another blow on the right leg above knee, before they could reach. Both escaped from there seeing Dnyaneshwar (P.W.2) and Eknath (P.W.5).
9. Ramesh was seriously injured and was profusely bleeding. So, they removed him to the Government Hospital at Parbhani in a jeep of Navghare. Ramesh was admitted in the hospital at about 1.30 p.m. (Page 216 of Paper Book). His condition was critical. He had sustained stab injury right side chest 9 cm. from mid-clavicular line lower and 10 cm. from nipple above. The size of the injury was 2-1/2 cm. x 1-1/2 cm. x cavity deep about 5 cm. Probe could be passed oblique in direction towards side of chest; stab injury right loin region about 2-1/2 cm. x 1 cm. x 6 cm. deep; superficial stab right thigh lower third about 2 inch x 1 cm. x skin deep. All the injuries were ante mortem. However, he succumbed to the injuries and was declared dead at 5.15 p.m. on the same day.
10. At 6.00 p.m. A.S.I. Abdul Wahid Sattar Shaikh (P.W.3) attached to Police Chowki of Civil Hospital, Parbhani received information of death of Ramesh Dube, resident of Sadegaon from Nanalpeth Police Station as per M.L.C. report vide Exh.31. He immediately attended postmortem room and made inquest of the dead body of Ramesh in presence of panch witnesses and drew inquest panchanama (Exh.32). He noted three stab injuries found on the dead body and also made enquiry with Dnyaneshwar (P.W.2), brother of the deceased, who was present near dead body. He recorded his complaint as per Exh.29 against appellant and others and forwarded the same to Rural Police Station at Parbhani along with his report, inquest and other documents.
11. On the basis of complaint (Exh.29), recorded by Abdul Wahid Sattar Shaikh (P.W.3), P.I. Adte (P.W.10) of Rural Police Station, Parbhani registered C.R. No.131/2005 under Section 302 read with Section 34 of the Indian Penal Code against appellant Parasram and others at about 2140 Hrs. and also took entry in the station diary. A.I. Adte (P.W.10) effected arrest of accused Parasram on the next day i.e. 21.12.2005 and arrest of other accused followed.
12. During the course of investigation, statements of the witnesses were recorded and spot panchanama (Exh.38) was drawn. Prosecution claimed recovery of knife under panchanama Exh.54 pursuant to the disclosure made under Section 27 of Evidence Act by appellant Parasram on 9.1.2006. Parasrams clothes since blood stains, were also seized and sent to Chemical Analyser those were found with blood group "A" of the deceased and the knife allegedly recovered also found stained with blood group "A" of the deceased.
13. Prosecution examined 11 witnesses including police officer P.W.3 (Shaikh) and P.W.10 (Adte) and Medical Officer Dr. Baburao Doiphode (P.W.1), panch witnesses and two eye witnesses namely Dnyaneshwar (P.W.2), brother of the deceased and Eknath Nayak (P.W.5). Both eye witnesses are close relatives of the deceased Ramesh Dube and were believed by the trial Court giving proper reasons and recorded findings and conviction against the appellant.
14. Heard both sides. Shri. Damle, learned counsel for the appellant assailed the judgment of the trial Court mainly on the finding that these two witnesses were the eye witnesses besides other pieces of evidence collected during the course of investigation and though proved against the accused, saying that they are insignificant. Defence mainly attacked on the F.I.R. (Exh.60) which is complaint by Dnyaneshwar, for delay in lodging with the concerned police station when the investigation had already begun. It is an F.I.R. by interested person who is a real brother of the deceased. Many contradictions were put forth between these two witnesses when they deposed before the trial Court on the point of main incident of assault. It was also submitted that appellant is suffering from deformity and cannot hold and use knife by his hand. So, defence claimed benefit of doubt and urged to discard the testimony of the eye witness.
15. It is seen that, this claim of deformity is not supported by medical evidence and P.W.1 Dr. Baburao Doiphode deposed in his re-examination that holding of knife is dependent on the flexibility of the person and skill of the person developed under that deformity to hold that weapon. So, defence did not get benefit of deformity as alleged in trial.
17. It is seen that P.W.2 Dnyaneshwar's oral statement was recorded against accused as complaint (Exh.29). It is a complaint in detail being an eye witness as to what happened and transpired on the day of the incident i.e. on 20.12.2005 from morning. It refers to incident of removing leaves of gram crop by women found in the field and they were driven out by the complainant and deceased brother Ramesh, followed by another incident. Appellant Parasram Ingole and accused Sakharam visited the house of Ramprasad Dube, where the complainant and deceased had gone for cooking food for 'Tervi' programme. Appellant and Sakharam had come to see Ramesh and took him away on the pretext that he would be back within five minutes. All three were seen going to Government dispensary, then there was altercation and scuffle took serious turn and during assault he along with others namely Rajebhau Prabhakar Naik, Eknath Balasaheb Naik (P.W.5) rushed to intervene and before them, Ramesh was stabbed on the right side of chest and on the left side below and also right knee by appellant who then ran away. During the scuffle, he was abusing Ramesh who got annoyed over the incident that happened in the morning in the field. It is all mentioned in his complaint (Exh.29).
18. Medical evidence on the point of these injuries are fully corroborated by the testimony of eye witnesses. The cause of death leading to finding of homicidal death of Ramesh is no more a controversy even in this appeal. The relevant documentary evidence is post mortem report duly proved on record and also the evidence of medical officer supports the prosecution story that deceased Ramesh died of injuries on the vital part in assault when weapon like knife was used. Therefore, the testimony of two eye witnesses Dnyaneshwar (P.W.2) and Eknath (P.W.5) in the light of submissions and arguments advanced by the defence counsel has been reappreciated by us.
19. Perused the learned trial Court's finding and reasons recorded for accepting their testimony and believing both as eye witnesses. We have also gone through their oral evidence independently and also in the light of the events of the same day since morning preceding to the main incident of assault which took place at 11.30 a.m. for better appreciation of the charge levelled against the appellant. It is widely accepted preposition that testimony of near relatives can also be considered but only after close scrutiny and the duties cast on the Court to scrutinise their evidence carefully.
20. The learned trial Court reproduced the relevant part of the testimony of both the eye witnesses and discussed it at proper place in its judgment. Both the eye witnesses deposed that there was a scuffle near Government dispensary between Parasram and Ramesh and Sakharam caught hold Ramesh and both accused were questioning Ramesh over the morning incident and during scuffle, appellant Parasram alone was named for giving knife blow on the right side chest of Ramesh and also knee part of right leg and immediately after the assault by knife, they escaped. Therefore, the learned trial Court only held appellant Parasram guilty.
21. It is admitted that, Dnyaneshwar and victim Ramesh are real brothers and were residing jointly. There was a boundary dispute with Sakharam in respect of land belonging to Laxman, which was held by them on 'batai' for cultivation at the relevant time. It was also suggested by defence to Minakshi (P.W.4), wife of Dnyaneshwar (P.W.2) that there was previous dispute and assault on Phulabai by Ramesh (deceased). As such, testimony of Minkashi (P.W.4) could be believed against appellant Parasram having visited her house with wife to demand Rs.500/- for treatment immediately after assault and they waited for half an hour for Ramesh till 10.30 a.m. She further deposed that, while going away, appellant was giving abuses in filthy words and threats of dire consequences to Ramesh. Her testimony defence could not shatter in cross-examination and is no doubt relevant to appreciate the main incident of stabbing.
22. Incident of stabbing took place at about 11.30 a.m. near Government Dispensary. It was weekly bazar day and there were 5 to 50 persons present at the spot, but none of them was examined in this case. Non-examination of independent persons as witnesses cannot be considered fatal to the prosecution for giving benefit of doubt to the appellant because most of them had left after weekly bazar was over.
23. Investigating Officer P.I. Adte (P.W.10) had visited the spot next day morning for recording spot panchanama and the statements. Therefore, there is no merit in the submission of the defence to discredit the investigation so also the prosecution on the point of alleged non examination of other witnesses when these two witnesses claimed to have seen the incident from the distance of 50 ft. Their earlier presence in the house of Ramprasad Dube nearby the spot is established. Both have categorically stated that they saw appellant and Sakharam taking deceased Ramesh with them from house of Ramprasad Dube and immediately the scuffle started with altercations and ended with deadly assault.
24. The ratio reported in AIR 1996 SC 3265 (Ram Sanjiwan Singh and others Vs. State of Bihar) also fortifies the view taken by the learned trial Court while appreciating the evidence of eye witnesses believed in this case. It was held that independent witnesses, if not examined though their statements were recorded by police would not detract veracity of eye witnesses whose presence on spot was natural and probable. It was further held that interested witnesses namely the relatives of the victim helping him in business and their presence on the spot at the time of assault on the victim, could not be discarded on the ground that they are interested witnesses if nothing is brought out in cross-examination to show that their presence was unexpected or was not natural. It was also observed that, in the inquest report, the names of the assailants were not shown. It is obvious that there was no column in the inquest report about the names of the assailants and there was no occasion for anyone to mention the names of the assailants in the inquest report (Paras 11, 12 & 19).
25. It also goes unchallenged that immediately after the deadly assault the injured Ramesh was removed to Parbhani from village Sadegaon and was admitted in about 12.30 p.m. and he succumbed to the injuries at about 5.15 p.m. The entry regarding M.L.C. was taken at Nanalpeth Police Station at about 5.25 p.m. immediately, on receiving information by Hospital authority vide Exh.31. At the behest of Nanalpeth Police Station, A.S.I. Abdul Wahid Sattar Shaikh (P.W.3) made inquest by going to postmortem room of the hospital. This evidence is also not under serious challenge by the defence. Then A.S.I. Abdul Wahid Sattar Shaikh was the Police Officer on duty at Police Chowki of hospital, recorded complaint (Exh.29) of brother Dnyaneshwar (P.W.2) against assailants by names. It was recorded about the same time when post mortem was conducted. Though no time is mentioned in his statement, but it was recorded in the hospital on the same evening when A.S.I. Abdul Wahid Shaikh Sattar approached the complainant, who was present in the hospital since 1.00 p.m. and seen at the time of post mortem. So also, father of the deceased was also present. His statement was treated as complaint against the appellant as assailant and also Sakharam's name was disclosed, with necessary details of actual assault and other events since morning.
26. Therefore, such complaint recorded in the hospital as per say of brother at first instance by a police officer disclosing name of the assailant cannot be tainted for "Delayed F.I.R." so as to discredit the prosecution story or to diminish the credibility and veracity of eye witness.
27. It appears to be an information disclosed at the right time to police officer (P.W.3) A.S.I. Abdul Wahid Sattar Shaikh who came across during inquest. Actual incident took place in village Sadegaon where there is no police station. They left for going to Parbhani hospital to admit the injured. The duty of real brother and near relations is to rush the injured to the well-equipped hospital and not to contact police or police patil of village for lodging F.I.R.. Even in the hospital complainant and his relatives were more concerned with general condition and treatment of the injured to save his life. Ramesh succumbed to the injuries within 4 hours of admission. Thus, death was immediately reported by the hospital authorities firstly to Nanalpeth Police Station, Parbhani as per Exh.31 around 6.00 p.m. and thereafter informed to A.S.I. P.W.3 Abdul Wahid Shaikh Sattar who immediately attended post mortem room for inquest and made enquiry with complainant brother who was an eye witness.
28. It was then forwarded to Rural Police Station, Parbhani along with panchanama and other papers by P.W.3. On the same night, investigating officer P.I. Adte (P.W.10) put an endorsement on station diary entry No.44 with time and Crime No.131/2005 under Section 302 read with Section 34 of the Indian Penal Code and admitted it for further investigation.
29. F.I.R. under Section 154 of the Criminal Procedure Code is every information relating to commission of cognizable offence given orally to officer in-charge of police station by going to police station and it was no occasion for complainant to go to police station at Parbhani and to report the incident disclosing name of the assailant.
30. The format of F.I.R. which is Exh.60 on record, was filled in by investigating officer P.I. Adte (P.W.10) of Parbhani (Rural) Police Station by copying the complaint under his signature and complainant is shown "On M.L.C." which was received from P.W.3. Thus, it shows that recording of F.I.R. with the concerned police station, Parbhani (Rural) was not by the complainant Dnyaneshwar himself by going to said police station in the night. It was on the basis of a complaint forwarded to the said police station by P.W.3 Abdul Wahid Shaikh Sattar who recorded statement of Dnyaneshwar earlier in the hospital as discussed above. So, there is no question of "delayed F.I.R." and "delayed despatch", would arise for giving any benefit to the appellant. Such claim of the defence deserves to be dismissed as seen from the endorsement "Seen/ 5-1-06 by Court on F.I.R. Ex.60 for received.
31. It was prompt disclosure of details of the incident and also the names of the assailant by complainant to the police officer P.W.3 Abdul Wahid Shaikh Sattar immediately after the death of Ramesh was reported around 6.00 p.m. There are no valid and sufficient reasons for these witnesses to implicate accused falsely.
32. The learned counsel for the appellant drew our attention to medical register and entry on the point of history - "assault by someone". The relevant entry no doubt speaks about the assault and would certainly not give benefit of doubt to the appellant because it is not a police paper but medical papers for patient's treatment referring to cause of the injuries for treatment and also in case it discloses or reveals medico legal case or accident, then for information to police or concerned authority. The history recorded in hospital papers is neither a "dying declaration" nor a "statement of a person" or relative who admitted the patient for treatment. It is no way connected with the police investigation. There is no evidence brought on record that deceased in injured condition was in a position to speak but did not tell the name of the appellant as assailant to the doctor on duty. There is also no evidence that eye witness, brother Dnyaneshwar (P.W.2) was asked and that he did not or could not name the assailant to the doctor on duty. We find that the alleged recovery of knife and also the report of Chemical Analyser about the blood stains and the blood group detected on the clothes of the appellant is of group "A" of the deceased, is also compatible with the charge and therefore, hold appellant guilty for stabbing death of Ramesh Dube and confirmed the said finding of learned trial Court.
33. Now, coming to the alternate submissions made before us by the appellant that the assault was not intentional, but there was altercation which lasted for 5 minutes, there was exchange of abuses followed by a scuffle giving enough provocation to the appellant who lost self control when he knew about the incident of beating to his wife by the deceased with a stick. Phulabai had also sustained injuries in early morning on the same day. The said incident was also reported to police by her against the deceased. Therefore, defence urged to consider the case for punishment under Section 304, Part-II of the Indian Penal Code instead of Section 302 of the Indian Penal Code. The above submissions of defence was strongly opposed by learned A.P.P..
34. Heard both sides on the point of sentence. It is not a case of grave and sudden provocation and, therefore, we are inclined to maintain the finding of guilty, conviction and sentence recorded by the learned trial Court.