Criminal Appeal No.221 of 2003

8th March, 2011

Petitioner Counsel: Mr. S. R. CHITNIS,Mrs. V. R. RAJE
Respondent Counsel: Dr. F. R. SHAIKH

Cases Cited:
Mauricio D'mello Vs. State of Goa, 2009 ALL MR (Cri) 1430 [Para 8]
Ananta Janardan Patil Vs. State of Maharashtra, 2009 ALL MR (Cri) 2716 [Para 8]

JUDGMENT

B. H. MARLAPALLE, J.:- This appeal filed under section 374(2) of the Code of Criminal Procedure is directed against the order of conviction and sentence passed in Sessions Case No.230 of 1996 by the learned Ad-hoc Additional Sessions Judge at Kalyan. Though eleven accused were tried for the offence punishable under sections 147, 148, 149 and 302 and alternatively under sections 302, 452, 324, 323 read with 34 of IPC, the trial Court convicted accused nos.1 to 4 for the offence punishable under section 302 read with section 34 of IPC and sentenced them to suffer R.I. for life. They have been further convicted for the offences punishable under sections 452, 324 and 323 each read with section 34 of IPC. This appeal has been filed by accused nos.1, 3 and 4 and accused no.2 - Kashinath Bhoir has not filed any appeal.

2. As per the prosecution case the incident has taken place at Village Umbarli of Thane District. The complainant party and the accused are neighbours in the said village. On 22.5.1989 the deceased - Balram, brother of P.W.4 - Kashinath Bhoir hurled some abuses between 6.30 to 8 pm but they were not addressed to anyone. On 23.5.1989 between 6 to 6.30 a.m. accused nos.1 to 4 came in front of the house of Balram and gave him a call to come out of the house. The accused were armed with deadly weapons like swords, axe and sticks etc.. Apprehending an attack on Balram, the family members pushed him in the neighbouring house of his Aunt - Smt. Barkubai Patil (P.W.2). The houses of some of the accused were next to the house of P.W.2. The accused broke the wall and gate chain of the house of P.W.2 and entered into her house so as get hold of Balram. Some of the accused dragged Balram out of the house and he was assaulted with weapons. He had sustained bleeding injuries on his head, thigh and finger. His family members tried to intervene and they also got injured. P.W.4 - Kashinath also sustained injuries and he rushed to the police station which was at some distance and reached at 9.15 a.m. and informed the police about the incident. The police arrived at the scene at about 10 a.m. and by the time Balram was taken to the hospital i.e. at 11 a.m., the doctor declared him dead before he was brought to the hospital.

3. The statement of P.W.4 - Kashinath was recorded and the FIR came to be registered at about 2.30 p.m. on the same day. The injured witnesses were also examined. The dead body of Balram was sent for post mortem which was done by P.W.3 - Dr. Harish Patankar. The accused were taken in custody on 28.5.1989 at about 23.30 hours. The prosecution further claimed to have seized three swords and one Parshi (axe) between 31.5.1989 to 1.6.1990 at the instance of accused no.1 and accused no.2. On completion of the investigation, the charge-sheet came to be filed on 9.8.1989 and as some of the offences were triable by the Sessions Court, the committal order was passed on 5.2.1989. The prosecution examined in all 12 witnesses. P.W.1 - Dr. Vasant Mahajan had examined the injured witnesses i.e. P.W.4 - Kashinath Bhoir and issued medical certificate at Exhibit-49. He also examined P.W.7 - Mandabai and issued injury certificate at Exhibit-51. P.W.2 - Smt. Barkubai Patil, P.W.4 - Kashinath Bhoir, P.W.6 - Babibai Bhoir and P.W.7 - Mandabai Jadhav were claimed to be eye-witnesses in support of the prosecution case. Whereas P.W.8 - Chandrakant Raut and P.W.9 - Dhalumal Nagpal were panch witnesses for the seizure of the weapons. However, P.W.9 turned hostile. P.W.10 - Tukaram Edge and P.W.12 - Balkrishna Jadhav were police officers examined by the prosecution. P.W.10 - Tukaram Edge was the investigating officer whereas P.W.11 - Chandrakant Gaikwad was attached to the Forensic Science Laboratory and he had submitted the C.A. report (Exhibit-78 to Exhibit-80).

4. In the statement recorded under section 313 of the Code of Criminal Procedure all the accused denied their involvement in the offence. The trial Court on assessment of the evidence as adduced by the prosecution held that the prosecution failed to prove an unlawful assembly of five or more persons and the accused were not the members of such unlawful assembly. It held that Balram died a homicidal death and accused nos.1 to 4 had committed the murder of Balram by giving blows on his person with weapons on 23.5.1989 while he was hiding in the house of P.W.2. The trial Court also held accused nos.1 to 4 guilty of causing injuries to P.W.4 and P.W.7, while they were trying to rescue the victim.

5. As per Mr. Chitnis, the learned Senior Counsel, the testimony of P.W.6 and P.W.7 is required to discarded and based on the evidence of the other two eye-witnesses i.e. P.W.4 and P.W.2, the prosecution has failed to prove that any of the accused had caused head injury to the deceased during the incident. While admitting that Balram died a homicidal death during the incident it was submitted by Mr. Chitnis that when P.W.4 reached the police station and gave intimation about the incident, the police station diary extract placed before the trial Court at Exhibit-103 mentioned about the injuries caused to the legs of the deceased but it did not mention the injury caused on his head and this is a serious infirmity in the prosecution case and it will have to be concluded that none of the accused were responsible for the head injuries sustained by the deceased. He also submitted that the prosecution failed to pin point the author of the head injury. As per Mr. Chitnis, at the most the prosecution case against the appellants would be governed by Section 304 (Part-I) read with 34 of IPC and not beyond that. He submitted that there was no pre-meditation so as to cause death of Balram by any of the accused and in any case when the seizure of the weapons could not be proved by the prosecution, there is serious doubt whether the deadly weapons like swords were used in the assault, as claimed by the prosecution.

6. Dr. Shaikh, the learned A.P.P. on the other hand has supported the impugned order of conviction and sentence in toto. He pointed out that despite the intervention and merciful appeals made by P.W.2, the accused did not leave the place of incident and instead they broke open the wall as well as the door and made forced entry into her house. The deceased was dragged by all the accused and he was assaulted with sharp weapons thereby causing bleeding injuries on his person. The death of Balram was on account of the injuries inflicted on him during incident has been proved by the prosecution and, therefore, the trial Court rightly convicted accused nos.1 to 4 under section 302 read with 34 of IPC and the said order does not call for any interference, urged Dr. Shaikh.

7. P.W.3 - Dr. Harish Patankar was in medical practice right from 1972 and on the date of the incident he was attached to the Central Hospital, Ulhasnagar. He stated before the trial Court that he had performed autopsy on the dead body of Balram and it was received from the Hill Line police station, Ulhasnagar. During the course of post-mortem he noticed the following ante mortem injuries :

"1. Sutured wound of size 4-½ on the right leg in middle 1/3rd region/obliquely transverse, extending to the right calf. The wound was examined after removing the stiches. It was stiched incised wound to anterial tibia artery and muscles of the right calf and compound fracture of the right tibia and fibula.

2. Stitched wound 4-½" on the right foot in the medical aspect obliquely placed. It was examined after removing the stitches. It was muscle deep.

3. Sutured wound 3-½" size on the right wrist with multiple fractures of the hand bones. Bone deep fracture of meta carpel bone.

4. Incised wound 4" X 2" bone deep on the left parito occipital region of the scalp. Obliquely placed.

5. Incised wound 1" X 2" into muscle deep on the chest on the right mammarial region."

He stated that injury nos.1 to 4 were sufficient to cause death in normal course of nature and in his opinion the cause of death was "cardio respiratory failure due to haemorrhagic shock following multiple injuries". He had signed the post-mortem report at Exhibit-54. He further stated that the injuries noticed on the person of the deceased could have been caused by sharp cutting edge and hard object like sword and axe. He also admitted that there was no fracture to the skull. As per him the injuries could have been caused within 24 to 48 hours prior to the time of post mortem and the post-mortem was conducted between 5.30 to 6.30 p.m. on 23.5.1989. Thus, the medical evidence clearly proved that Balram died a homicidal death and on account of multiple injuries sustained by him during the incident and they were caused by sharp cutting weapons such as sword and axe. This has not been much disputed by the defence.

8. P.W.4 - Kashinath Bhoir is the brother of the deceased but they were staying in separate houses. The houses of both the brothers were facing each other. He stated before the trial Court that on 22.5.1989 the deceased was abusing aimlessly at about 6.30 p.m. and without naming anybody. On 23.5.1989 around 6.30 a.m., all the accused arrived near his house and accused no.1 - Chandrakant started giving abuses to Balram. He, therefore, came out and saw that Chandrakant, Kashinath Manglya and Pandya i.e. accused nos.1, 2 and 4 were holding swords and accused no.3 was holding axe. He went to the house of P.W.2 where his sister was also present. The deceased Balram was pushed in the house of P.W.2 so as to save him from the attack. Accused nos.1 and 2 insisted upon P.W.2 to let Balu out of her house but she refused. Accused nos.1 and 2 made entry from western side of the house by breaking open the wall of the house of P.W.2 whereas accused nos.3 and 4 broke open the house door on eastern side. After getting into the house of P.W.2, accused nos.1 and 2 dragged Balram by holding his head and accused no.1 dealt a blow with sword on the head of Balu. Balu collapsed on the ground and accused no.2 gave a blow over the leg of Balu. Accused no.1 gave the second blow on the wrist of Balu whereas accused no.3 gave a blow over the head of Balu by an axe. He tried to obstruct the said attack on the deceased. He also stated that accused no.4 tried to give him a blow of sword on his head which he obstructed. Balram was then lifted and taken in the house. He then went to the police station at Ulhasnagar and lodged the report. The police came to the spot at 11 a.m. and with their help Balram was taken to the Central Hospital, Ulhasnagar and he was declared dead. He confirmed that the statement was recorded by the police at about 2 p.m. and it came to be registered as FIR (Exhibit-56). We do not find any material contradictions in the evidence of this witness vis-à-vis FIR at Exhibit-56. He was subjected to cross-examination by the defence and he stated that he was in the police station between 9 and 9.30 a.m.. He had bleeding injury which he had tied with cloth. He further stated that two policemen accompanied him in rickshaw and he narrated them the incident while on way to his village. He also admitted that he did not give the history of assault to the doctor. He denied the suggestion that the incident had occurred at mid-night. He also denied the suggestion that the deceased was assaulted by some unknown persons and accused were deliberately implicated. He also denied the suggestion that none of the accused had entered the house of deceased or P.W.2. At this stage it would be pertinent to note that the police entry at Exhibit-103 was relied upon by Mr. Chitnis to suggest that it was the first information given to the police station and it did not mention the head injury. In this regard he placed reliance on the decisions of this court in case of Mauricio D'mello Vs. State of Goa, 2009 ALL MR (Cri) 1430 and Ananta Janardan Patil Vs. State of Maharashtra, 2009 ALL MR (Cri) 2716.

We have gone through these decisions and it would be pertinent to note that in the cross-examination of P.W.4 nothing was asked in relation to the entry at serial no.9 made in the station diary (Exhibit-103). Even otherwise it is well settled that the first information given to the police station need not have the minute details or description of the entire incident giving all the circumstances and injuries sustained on different parts of the body or by different victims. At the same time such first information to the police station does not offer any contrary proof and, therefore, the submissions made by Mr. Chitnis that the prosecution could not prove the author of the head injury has to be discarded. In the cross-examination of P.W.4, the defence could not bring out any contradictions in his substantive evidence and the FIR, regarding the head injury.

9. Now coming to the evidence of P.W.2 - Barkubai Patil, she stated before the court that she was the maternal aunt of deceased Balram as well as P.W.4 and her house was adjacent to house of the deceased. She also stated that houses of four accused were next to her house and the houses of the remaining accused were nearby. She stated that the deceased had on 22.5.1989 hurled some abuses at about 8 p.m. to his children and on the next day at about 6 to 6.30 a.m. accused no.2 - Kashinath came in front of the house of deceased and he gave call to him to come out of the house. She saw other accused with arms and, therefore, the mother and sister of the deceased brought him in her house and closed the door. From the window of her house she requested accused no.2 by folding hands to go away and if there was any mistake committed or wrong committed by her party, the accused should forgive and go away. The accused did not heed to her request and from the western side accused nos.1 and 2 entered her house by breaking the wall. Accused nos.3 and 4 entered her house by breaking the chain of the door and pushed it inside. Accused no.1 caught hold of Balu and dragged him and gave blow of sword on the right leg. Both of them were armed with swords and accused no.3 - Hanuman was holding an axe whereas accused no.4 - Pandya was holding a sword. Accused no.2 gave second blow by sword over the head and hand of the deceased (right arm) and accused no.1 gave another blow of sword on the leg of the deceased. As Balram was pulled out, his family members tried to save him and in the process they also sustained injuries at the hands of the accused. P.W.4 was assaulted by accused no.4 by axe. Accused thereafter ran away and they had also manhandled P.W.7 - Mandabai. Nobody had touched P.W.2. She also stated that after sometime the police arrived and they lifted the deceased to take him to Ulhasnagar Central Hospital. She identified the accused persons in the court i.e. accused nos.1 to 4. In her cross-examination she admitted that in the murder of Supriya, who was one of her relatives, all accused were acquitted in the year 1985. She further admitted that Balram was assaulted in front of the door of her house. The spot panchanama at Exhibit-134 supports the testimony of P.W.2 and P.W.4 that Balram was assaulted. The prosecution case as regards breaking of the wall, breaking the chain of the door and bleeding injuries caused at the door steps of the house of P.W.2 are noted in Exhibit-134. Even if we do not consider the evidence of P.W.6 and P.W.7 on the material circumstances of assault unleashed by the accused at Balram, with testimony of these two witnesses also supports the evidence of P.W.2 and P.W.4 that accused nos.1 to 4 had gathered in front of the house of Balram and they were armed. They broke open the wall of the house of P.W.2 as well as chain of the door and made forced entry so as to attack Balram. Having regard to the evidence so adduced by the prosecution before the trial Court we do not find force in the contentions of Mr. Chitnis, that the accused had not intended to cause death of Balram and that the prosecution case could not go beyond the offence punishable under section 304, Part I of IPC. The accused had gathered in front of the house of Balu with determinations and despite the requests with folded hands by P.W.2, they did not go back. She tendered apologies and begged of their pardon. On the contrary, they forced their entry into her house so as to attack Balram, who was hiding in her house. The blows given to Balram were with sharp cutting weapons and premeditation to commit the offence was apparent. In our opinion the learned trial Judge rightly considered all the circumstances and more particularly the evidence of the eye-witnesses (P.W.2 and P.W.4) and held that the prosecution proved its case of offence punishable under section 302 read with 34 of IPC against accused nos.1 to 4. We do not find any error committed by the trial Court in appreciating the evidence of the prosecution and hence the impugned order of conviction and sentence deserves to be confirmed.

10. In the premises this appeal fails and the same is hereby dismissed. The order of conviction under section 302 read with section 34 of IPC passed in Sessions Case No.230 of 1996 against the accused is hereby confirmed.

Appeal dismissed.