Criminal Appeal No.323 of 2007

24th April, 2009

Petitioner Counsel: Mrs. S. G. CHINCHOLKAR
Respondent Counsel: Mr. B. J. SONWANE

JUDGMENT

P. V. HARDAS, J. :- The appellants no.1 and 2 stand convicted for an offence punishable under section 302 read with 34 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.3,000/- each, with a default condition of undergoing further simple imprisonment for six months in the event of non-payment of fine and appellant no.3 Nilabai w/o. Datta Potare stands convicted for an offence punishable under Section 324 of Indian Penal Code and sentenced to suffer simple imprisonment for 6 months and to pay fine of Rs.1,500/- with default condition to undergoing simple imprisonment for three months and accused nos.3 and 4 who also stand convicted for an offence punishable under section 323 r.w.34 and sentenced simple imprisonment for three months and to pay find of Rs.1000/- each with default condition of under going further simple imprisonment for one month by the Additional Sessions Judge, Nanded by judgment dated 25-7-2007.

2. Such of the facts are as necessary for the decision of this appeal may briefly be stated thus :-

P.W. 8 P.S.I. Satanure who was attached to Tamsa Police Station recorded the complaint of P.W.1 Laxmibai at Exh.25. On the basis of said complaint at Exh.25, he registered an offence vide crime No.67/2006 under section 302, 324, 323, 504 r.w section 34 of Indian Penal Code. After registration of the offence, investigation came to be handed over to P.W.10, A.P.I. Uttam Mulak. In the evening P.W. 10 A.P.I. Mulak went to the Primary Health Center Tamsa and drew the inquest pachanama of the dead body of deceased Shyamrao at Exh.31 in presence of P.W.4 Vishvanath. Thereafter, he issued a requisition for conducting the post-mortem on the dead body of deceased Shyamrao at Exh.46. Post-mortem on the dead body of deceased Shyamrao came to be conducted by P.W.7 Dr. Gopikrishna Patil. P.W. 7 Dr. Patil noticed following external injuries.

1. CLW over forehead on left side of size 1 cm x 0.5 cm x 0.4 cm, edges are read and swollen, clots present, within 24 hours, caused by hard and blunt object.

2. Abrasion over forehead on right side of size 1 cm x 0.5 cm redness present, within 24 hours, caused by hard and blunt object.

3. Stab injury over sternum at the level of 3rd intercostal space, of size 1.5 cm x 0.7 cm x deep thorax, biconvex in shape, edges are red, swollen, clots present within 24 hours, caused by pointed and sharp object.

On internal examination, he noticed fracture of sternum at the level of third intercostal space at thorax. He also noticed that pericardium contains heamotoma and blood clots. Heat penetrating injury over right atrium entering the cavity of heart. He therefore, opined that cause of death was haemmorrhagic shock with cardio respiatory arrest due to injury to heart. Post-mortem report is at exh.40. P.W. 10 API Mulak thereafter recorded the statements of witnesses and also seized the clothes of deceased vide seizure at Exh.32. He thereafter visited the scene of the offence and recorded the scene of the offence panchanama at Exh.34 in the presence of P.W. 5 Pandit. The accused came to be arrested on 17-9-2006 under the arrest panchanama at Exh.48, 49, 50. Clothes from the person of the accused came to be seized on the next day under panchanama at Exh.36 in presence of witnesses. During custodial interrogation accused no.1 expressed his willingness to point out the place where the sickle was hiden. Aforesaid memorandum came to be recorded in presence of P.W. 6 Uttam at Exh.37. Accused thereafter led the police and panch to the field of one Maruti and produced a sickle it was hidden under a lemon tree. There were blood stains and mud to that sickle. The sickle came to be seized under panchanama at Exh.37-A On 19-9-2006, accused No.4 Santram came to be arrested under arrest panchanama at Exh.51. Blood samples of accused no.1 and 2 came to be obtained from the Medical Officer seized property thereafter came to be forwarded to the Chemical Analyser for analysis. The report of chemical analyser Exh.56 discloses that clothes of the accused were found stained with blood of 'O' group and clothes of accused nos.1 and 2 were also found stained with blood group 'O'. No blood however was detected on the sickle. The injured namely P.W.3 Jambuvant came to be referred for medical examination was examined by P.W.11 Dr. Aute. Dr. Aute noticed following external injuries :

1. Incised wound on scalp occipital region, 1 cm x 1/2 cm and probably caused by sharp object.

2. Contusion over right shoulder 2 x 2 cm, within six hours, probably caused by hard and blunt object.

He therefore, opined that injury sustained by P.W. 3 Jambuvant was possible by means of sickle article '7'. The injury certificate of P.W. 3 Jambuvant is at Exh.59, after completion of the investigation, charge-sheet against the appellants came to be submitted.

3. On committal of the case to the Court of Sessions, the Trial Court vide Exh.18, framed a charge against the appellants for offence punishable under Section 302 r/w.34, 323, r.w.34, 324 r.w.34 and 504 r.w. 34 of the Indian Penal Code. Prosecution in support of its case, examined 11 witnesses while the defence of the accused is of denial. At appreciation of the evidence of the prosecution, the trial court found that the evidence punishable under section 302 r.w.34 was only proved against accused no.1 and 2 and therefore convicted and sentenced them as aforesaid while convicting the accused no.3 and 4. Accused no.3 was convicted for an offence punishable under section 324 of the Indian Penal Code while accused nos.3 and 4 were convicted for an offence punishable under section 323 of the Indian Penal Code. The appellants being dissatisfied by their conviction and sentence have filed present appeal.

4. In order to deal with the submissions advanced before us by Mr. S. G. Chincholkar learned counsel for the appellants, it would be useful to refer to the evidence of the prosecution witnesses.

P.W.1 Laxmibai w/o. deceased Shyamrao states that P.W. 3 Jambuvant and accused no.4 Santram are brothers of her husband deceased Shyamrao. Shyamrao and his brothers reside separately. Bhagabai, mother of Shyamrao and accused No.2 Datta, accused No.4 Santram was residing separately and at the time of incident, was residing with accused No.2 Datta. According to her on the day of incident her husband Shyamrao had gone to the weekly bazar at village Tamsa and had returned in the evening at about 06.00 p.m.. There was some take between accused No.2 Datta and deceased Shyamrao in respect of maintaining their mother Bhagabai. Accused No.3 Nilabai wife of accused no.2 Datta was abusing and therefore, deceased Shyamrao asked accused No.3 Nilabai not to intervene in the dispute between the brothers. On account of that it appears that there was a scuffle between deceased Shyamrao and accused No.2 Datta. Accused No.1 Tukaram gave a blow of sickle on the chest of Shyamrao. Accused No.2 Datta gave a blow of stone on the head of Shyamrao. Shyamrao sustained bleeding injury due to sickel blow and Shyamrao fell down due to stone blow. P.W. 3 Jambuvant came to separate the quarrel and accused No.3 Nilabai took the sickle from accused No.1 Tukaram and gave its blow to Jambuvant on his head. P.W.1 Laxmibai states that, she went to separate the quarrel, and accused No.3 Nilabai also caught hold her hair and dragged her. Accused No.4 Santram gave fist and kick blows to P.W.1 Laxmibai. She states that there after deceased Shyamrao was taken to the Government Hospital at Tamsa in an autorickshaw. The Medical Officer on examination Shyamrao declared that Shyamram had died. Laxmibai states that there after she had gone to police station Mantha and had lodged her complaint at Exh.25. She was identified the clothes worn by her husband deceased Shyamrao. In cross-examination she has admitted that Shyamrao and his brothers were residing separately as they had effected a partition amongst themselves. She has also agreed that share of Bhagabai had not been demarcated in the said partition amongst themselves. She has also agreed that share of Bhagabai had not been demarcated in the said partition. She has denied suggestion that irrigated land had been allotted to Shyamrao so that Shyamrao should maintain Bhagabai. She has agreed that it was raining at the time of the incident. She has agreed that houses of P.W. 3 Jambuvant and house of one Dulba are between her house and house of accused No.2 Datta. She has stated that incident took place in front of her house and she was standing in front of her house. She has admitted that about 10-15 person had gathered at the spot. She has also agreed that there was heated exchanged between her husband and accused No.2 Datta for about 15 minutes. She has admitted in the cross-examination that she was outside the house since beginning of the incident. She has admitted that she had come out of the house immediately on return of her husband from the bazar. She states that she had seen Tukaram while coming to her house. There after nothing of importance has been elicited in the cross-examination. However, perusal or First Information Report Exh.25, shows that accused No.2 Datta had first dealt a blow of stone on the head of Shyamrao and thereafter accused No.1 Tukaram had stabbed him. This contradiction however was not brought in the evidence of Laxmibai nor was it suggested to her that accused No.2 Datta had first given a blow by stone and thereafter accused No.1 Tukaram had stabbed Shyamrao.

5. Prosecution has also examined P.W. 2 Bhimrao who states about quarrel between Shyamrao and accused No.2 Datta and about accused No.1 Tukaram and injuries by sickle on the chest of Shyamrao. He also states about accused No.2. During scuffle he saw that accused no.1 Tukaram coming from the field and giving a blow of sickel on the chest of Shyamrao. Shyamrao sustained bleeding injury and then Shyamrao fell down. Accused No.2 Datta gave a stone blow on head of Shyamrao. Jambuvant thereafter rushed there. He also states about accused no.4 Santrao and accused No.3 Nilabai giving fist and kick blows. He has admitted that incident had occurred in the evening after sunset. He has stated that incident occurred on the road and in front of the house of the Dulba. He has also admitted that in front of the house of Dulbathere was a road, and there were blood stains on the road in front of house of Dulba. He states that Tukaram had not reached the spot when he had gone to the spot. Tukaram, was seen coming to the spot. He has also admitted that he had seen Tukaram from a distance of about 10 to 20 feet. He has also admitted in the cross-examination that Laxmibai was present before he had reached the spot. He has admitted that P.W.3 Jambuvant had reached the spot after P.W.2 Bhimrao had reached the spot.

6. Prosecution has examined P.W.3 Jambuvant, brother of deceased Shyamrao and brother of accused No.2 Datta and accused No.4 Santram. According to him, he had heard some cries at about 06.00 p.m. and therefore, he had come out of his house and had seen Shyamrao lying on the ground having sustained bleeding injury. Accused No.1 Tukaram was holding a sickle and therefore he tried to get the sickle, however accused no.3 Nilabai took that sickle and gave its blow on head of Jambuvant. He states that he fell unconscious and he regained his consciousness in the hospital at Tamsa. In cross-examination he has admitted that P.W. 2 Bhimrao was present at the scene of the offence. He has admitted that there was slight drizzle when he had came out of his house. He has admitted that P.W.1 Laxmibai was present on the scene of the offence before P.W.3 Jambuvant reached the spot. He has admitted that his house and house of other brothers are adjacent to each other. He states that he had seen Tukaram from a distance of 12 feet when he was coming outside his house.

7. The last eye-witness examined by the prosecution is P.W. 9 Vijay. P.W. 9 Vijay Rathod states that accused No.2 Datta and deceased Shyamrao were quarrelling with each other and suddenly accused no.1 Tukaram came to the spot and gave a sickle blow on the chest of Shyamrao. Thereafter Datta gave hit stone hit on head of Shyamrao. Thereafter Shyamrao was taken to the hospital where he was declared dead. In cross-examination, contradiction has been proved to the extent that he had not informed police patil by taking him aside that Tukaram had dealt a sickle blow on the chest of Shyamrao. The contradiction is to the extent of taking police patil aside. Omission has been duly proved that he had not stated that Tukaram had arrived at the scene of the offence arme with the sickle. The omission is to the extent of Tukaram being armed with the sickle. He has also admitted presence of P.W. 2 Bhimrao.

8. On the basis of evidence of the eye-witnesses it is urged by Mrs. S. G. Chincholkar learned counsel for the appellant that a reliance can be placed on the testimony of P.W. 1 Laxmibai as Laxmibai states that incident had occurred in front of her house while P.W. 2 Bhimrao states that the incident had occurred in front of the house of Dulba. According to learned counsel for the appellant since prosecution witness had changed the scene of the incident, no reliance what so ever can be placed on their testimony. Perusal of spot panchanama Exh.34 and the copy of map, it would be clear that houses of Dulba and Laxmibai are adjacent to each others. Scene of the offence is at a short distance from the house of deceased Shyamrao. It is between the house of accused no.2 Datta and house of P.W. 3 Jambuvant. Since the houses are adjacent to each other and situated close to each other we cannot fault Laxmibai when she states that incident had occurred in front of her house. We therefore, do not find any material discrepancy in the evidence of P.W. 1 Laxmibai and P.W. 2 Bhimrao in respect of the scene of the offence. The scene of the offence is duly proved and blood stained soil cam to be seized from the scene of offence.

9. It is also urged before us by the learned counsel for the appellant that accused no.1 would be entitled for the appellant that accused no.1 would be entitled for the benefit of exception 4 to section 300 of the Indian Penal Code. According to us Tukaram was not person who was engaged in a quarrel. Quarrel was going on between accused no.2 Datta and deceased Shyamrao. Tukaram cannot be said to be a person who was involved in Sudden quarrel and who had inflected the injury in sudden heat of the quarrel. Tukaram had reached to the scene of the offence and thereafter had caused injury on the chest of the deceased Shyamrao. Tukaram therefore, is not entitled to claim benefit of exception 4 to section 300 of Indian Penal Code. Deceased Shyamrao died due to injuries sustained to heart. Tukaram therefore, according to us has been rightly convicted for an offence punishable under Section 302 of the India Penal Code.

10. In respect of accused No.2 Datta Mrs. S. G. Chincholkar learned counsel for the appellant has urged before us that killing of Shyamrao was not as a result of sharing of common intention between accused No.1 Tukaram and accused No.2 Datta. According to the counsel the quarrel was going on between Datta and deceased Shyamrao and in that quarrel accused no.2 Datta had hit a stone on the head of deceased Shyamrao. According to learned counsel for the appellant medical evidence also supports that deceased Shyamrao had sustained injury on account of stone as a result of fall. Perusal of First Information Report at Exh.25 clearly discloses that accused no.2 Datta had first dealt a stone blow on the head of deceased Shyamrao and thereafter accused no.1 Tukaram had stabbed deceased with sickle. Both the accused had not arrived together at the scene of the offence. Obviously there was no meeting of minds between both accused. Unfortunately contradiction in testimony of Laxmibai and the recitals in her report at Exh.25 had not been put to her. Even if the contradiction is not put to Laxmibai, it is clear to us that there was no prior meeting of mind between Tukaram and accused no.2 Datta. Accused No.1 Tukaram had arrived at the scene during the quarrel which was going between accused no.2 Datta and deceased Shyamrao. Injury caused by accused no.2 Datta though on the vital part of the body had not accused any internal damage. Skull was found intact. It was only a simple injury which was caused by the stone, which can be said to be a dangerous weapon. Since there was no prior meeting of minds, causing of injury on the head of deceased Shyamrao by accused no.2 Datta cannot be said to have done, as a result of sharing of common intention between accused No.1 Tukaram and accused no.2 Datta. Therefore, according to us, conviction of accused no.2 Datta for an offence punishable under section 302 r.w. 34 of Indian Penal Code is unsustainable and accused no.2 Datta would be responsible and would be liable to be convicted for offence punishable under section 324 of I.P.C.. In respect of conviction of the accused no.3 Nilabai for offence punishable under section 324 of Indian Penal Code, according to us, there is overwhelming evidence and therefore, no interference is called for in respect of her conviction for offence punishable under section 324 of Indian Penal Code. Similarly accused no.3 Nilabai and accused no.4 Santram are alleged to have assaulted Laxmibai by giving fist and kick blows and therefore, their conviction for offence punishable under section 323 also would call for no interference. However, perusal of the record ad proceeding of the trial Court discloses that accused no.2 has undergone imprisonment for 5 months and 8 days, while accused No.3 Nilabai had undergone imprisonment for two months 9 days, accused No.4 Santram has also undergone imprisonment for two months and nine days. All the three accused/appellants had been released on bail by this Court during pendency of this appeal. In the light of that, therefore, we modify the sentence and release the accused on the period of imprisonment already undergone by them. Therefore, in respect of sentence and fine which has been imposed by the Trial Court following order is passed.

1. Criminal Appeal No.323/2007 is partly allowed.

2. Appeal stands dismissed as against conviction of accused no.1 Tukaram, for an offence punishable under section 302 of Indian Penal and his conviction and sentence is confirmed. Accused no.2 Datta is acquitted for an offence punishable under section 302 read with section 34 of Indian Penal Code, his conviction is however modified and he is convicted for the offence punishable under section 324 and he is sentenced to the period of imprisonment already undergone by him. Conviction of accused no.3 Nilabai and accused no.4 Santram for the offence punishable under section 324, 323 is hereby confirmed. However, their sentences are modified to the term of imprisonment already undergone by them. Sentence of fine remains unaltered.

3. Appeal thus stands partly allowed accordingly.

4. Bail bonds of accused No.2 Datta, accused No.3 Nilabai, accused No.4 Santram stand cancelled.

Appeal Partly allowed.