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judg.931.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.931 OF 2012
(By accused against conviction and sentences)
1. Shrirang Namdeo Chandanshive }
2. Sakharam Namdeo Chandanshive
3. Tanaji Namdeo Chandanshive }
4. Dnyanoba Dhoni Chandanshive
5. Ananda Dhoni Chandanshive }
6. Sachin Shrirang Chandanshive .. Appellants
(Orig.Accd nos.1 to 6)
vs
The State of Maharashtra } .. Respondents
Mr.Vikas Shivarkar for Appellants Mrs.S.D.Shinde APP for State CORAM: P.V.HARDAS & G.S.KULKARNI,JJ DATED: DECEMBER 5, 2014 ORAL JUDGMENT (Per P.V.Hardas, J)
1. The appellants who stand convicted for offence punishable under sections 147,148,149, 302 and 506 Part II of the Indian Penal Code and sentenced to R.I.
For 6months and each accused to pay fine of Rs.500/- in default of which to undergo further R.I. for 15 days, R.I. for 1 year and each accused to pay fine of Rs.1000/- in default of which to undergo further R.I. for 1 month, imprisonment for life and each accused to pay fine of Rs.2500/- in default of which to undergo further R.I. for 1 year and R.I. For 6 months and each accused to pay fine of Rs.500/- in default of which to undergo further R.I. for 15 days by the Additional ::: Downloaded on - 09/12/2014 23:46:52 ::: Rng 2 judg.931.12 Sessions Judge, Malshiras, by Judgment dated 30 th July 2012 in Sessions Case No.29 of 2010, by this appeal questions the correctness of their conviction and sentence.
Briefly stated facts as are necessary for decision of this appeal are stated thus:
2. PW 5 - API Anil Tanpure who was attached to Akaluj police station and on 8th January, 2009 was deputed to Shripur police outpost recorded the report of PW 3 - Kailas Bhosale at Exhibit 19. On the basis of the report of PW 3 - Kailas Bhosale he prepared an occurrence report and forwarded the occurrence report to Akaluj police station for registration of offence. On the basis of the FIR an offence was accordingly registered under sections 147, 148,149, 302, 504 and 506 of the Indian Penal Code and section 135 of the Bombay Police Act vide crime no.3 of 2009. Investigation of the said crime was entrusted to PW 5 - API Anil Tanpure.
3. On being entrusted with the investigation, he proceeded to the scene of the incident which was in the filed of Shamrao Chandanshive on the bank of riverlete on Jambul-Malwadi Road at village Chambul. On reaching the scene of the incident he noticed deceased Shamrao lying in his field. Deceased Shamrao ::: Downloaded on - 09/12/2014 23:46:52 ::: Rng 3 judg.931.12 had sustained injuries on head and chest and was bleeding. An inquest panchanama was accordingly drawn in the presence of panchas at Exhibit 37.
The dead body was thereafter referred for post-mortem examination. A panchanama of the scene of the incident was accordingly drawn in the presence of panchas at Exhibit 38. From the scene of the incident samples of blood stains, samples of ordinary mud, blood mixed with mud, a pair of footwear, fishing cord with hook and white colour cotton bag were seized. A photographer was called to take photographs of the scene of the incident and photographs are at Exhibit 62 to 67. On next day, he recorded statements of witnesses and thereafter arrested accused no.1-Shrirang Chandanshive and accused no.2-Sakharam Chandanshive under arrest panchanama at Exhibit 25. Clothes of the accused were seized under seizure panchanama at Exhibit 34. Clothes of the deceased were seized under a seizure memorandum at Exhibit 33. Statements of witnesses were recorded and thereafter accused no.3-Tanaji Chandanshive was arrested under a arrest panchanama at Exhibit 26. On 13 th January, 2009 during custodial interrogation, accused no.1-Shrirang Chandanshive expressed his willingness to point out the place where the axe had been concealed. A memorandum was accordingly drawn in presence of panchas at Exhibit 72. Accused no.1 - Shrirang Chandanshive led police and panch to his house and produced an axe and clothes which had been concealed under a babul tree. The axe and clothes were ::: Downloaded on - 09/12/2014 23:46:52 ::: Rng 4 judg.931.12 accordingly seized under a seizure memorandum at Exhibit 73. On 14 th January, 2009 accused no.3-Tanaji Chandanshive during custodial interrogation expressed his willingness to produce his clothes and axe. Accordingly, a memorandum was drawn in presence of panchas at Exhibit 74. Accused no.3-
Tanaji Chandanshive led police and panch to his house and from a heap of grass produced an axe and clothes which were seized under seizure memorandum Exhibit 75. Subsequenlty, accused nos.4 and 5 were arrested. Their clothes were seized under seizure panchanama at Exhibit 35. The arrest panchanama of accused nos. 4 and 5 is at Exhibit 27. The seized property was then referred to the Chemical Analyser, Pune under requisition at Exhibit 76. The sketch of the scene of the incident is at Exhibit 61. The report of the Chemical Analyser are at Exhibit 78 and 79. Exhibit 28 is the 7/12 extract of the land of one Bhiku Maruti Chandanshive. Accused no.6 who was absconding could not be traced.
Further to the completion of investigation, a charge sheet against accused nos. 1 to 5 was filed. Accused no.6 was subsequently arrested and was accordingly tried with other accused.
4. Post mortem on the dead body of deceased Shamrao was performed by PW 6 Dr.Pralhad Gaikwad who noticed following external injuries:
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1. "Incised wound over chest, oblique on starnum in middle, of size 4 inches x 1 ½ inches x upto viscera deep.
2. Incised wound over scalp, on left parietal region oblique of size 4 inches x ½ inches up to bone deep."
On internal examination he noticed fracture to parietal bones obliquely placed corresponding to external injury no.1. He opined that all the injuries were ante-mortem and were caused within 24 hours. According to him, the injuries could be caused by two axe before the Court. According to him, injured Shamrao had died due to cardio-respiratory arrest due to shock due to polytrauma. The post-mortem report is at Exhibit 81.
5. On the case being committed to the Court of Sessions, the trial Court vide Exhibit 3 framed charges against accused nos. 1 to 5 for offences punishable under sections 147, 148, 302 read with section 149, 504 and 506 Part II read with section 149 of the Indian Penal Code as well as offence punishable under section 135 of the Bombay Police Act. The accused denied their guilt and claimed to be tried. Thereafter accused no.6 was arrested and on completion of investigation, a supplementary charge sheet was filed. The supplementary charge sheet was merged with the charge sheet against other accused and accordingly vide Exhibit 44 a charge was framed against accused no.6 to which he pleaded not guilty.
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6. The entire prosecution case against the appellants rests on testimony of PW 3-Kailas Bhosale who is an eyewitness and first informant as well as PW 4-
Satyawan Chandanshive who is examined as an eye witness. PW 3-Kailas Bhosale a relative of the deceased Shamrao deposed that his father-in-law Bhiku Maruti Chandanshive owned about 2 ¾ acres of agricultural land at Malwadi-
Jambhul. Deceased Shamrao was his brother-in- law while accused nos.1 to 6 were step brothers of deceased Shamrao. According to PW3 - Kailas Bhosale on 8th January, 2009 at 3.30 p.m. he along with deceased Shamrao had gone to the nalla ie. irrigation canal near the field of Maruti Chandanshive. At about 4.30 a.m. while they were fishing they heard sound of cutting of chilari trees from the field of Maruti Chandanshive. Therefore, Kailas Bhosale the deceased Shamrao went towards the field of Maruti Chandanshive and noticed the appellants i.e. accused nos.1 to 6 cutting chilari trees from the field of Maruti Chandanshive.
The deceased questioned the accused as to why they were cutting the trees.
Thereupon the accused questioned whether they were cutting trees from the field of Shamrao. The accused further informed Shamrao that they were cutting trees for using it as firewood. Thereafter, Shamrao requested the accused not to cut the trees. Thereafter accused no.4-Dnyanoba Chandanshive and accused no.5-
Ananda Chandanshive caught deceased Shamrao and accused no.2 Sakharam Chandanshive assaulted him with kicks and fist blows. Suddenly accused no.3-
::: Downloaded on - 09/12/2014 23:46:52 ::: Rng 7judg.931.12 Tanaji Chandanshive dealt blows of axe on the head of Shamrao. Shamrao sustained bleeding injuries on the head and collapsed on the ground. Accused no.1-Shrirang then dealt an axe blow on the chest of Shamrao. On seeing the incident Kailas Bhosale was frightened and therefore, fled from the scene of the incident. Accused no.6-Sachin Chandanshive and accused no.2 Sakharam Chandanshive were shouting for catching Kailas and killing him when Kailas was seen fleeing from the scene of the incident. Kailas fled from the scene of the incident and cried out for help. On hearing his cries PW 4-Dnynoba Chandanshive and Maruti Chandanshive came to the scene of the incident.
Accused meanwhile fled from the scene of the incident. Kailas went to Akaluj police station and lodged his report against the appellants. The First Information Report is at Exhibit 49. He returned to the scene of the incident along with police and pointed out to them the scene of incident. Thereafter, the police drew panchanama of the scene of the incident and of the dead body of deceased Shamrao.
7. In cross-examination, he has admitted that deceased Shamrao was his brother-in-law as he was brother of his wife Neeta. He further admitted that his father-in-law Bhiku Maruti Chandanshive had three step-brothers by name Dhondi, Chokha and Namdeo and accused no.1 to 6 were children of step ::: Downloaded on - 09/12/2014 23:46:52 ::: Rng 8 judg.931.12 brothers of his father-in-law. He admitted as correct that accused were stepbrothers of the deceased Shamrao. He has admitted that he does not own any agricultural land nor was he having any business at village Jambulwadi. He had come to village Malewadi-Jambhul in order to cultivate agricultural land of his father-in-law. He has admitted that he was not residing at the house of his father-
in-law. He has admitted that water level in the canal was 4 to 5 inches. He has further admitted as correct that water from Ujjaini canal had been released on 1 st January, 2009 and thereafter water had not been released. He has admitted that house of the accused was situated at Malewadi-Jambhul Road. He has admitted that he along with deceased Shamrao was sitting on the bank of the irrigation canal. An omission has been elicited that he had not stated in his report about presence of PW 4- Satyawan Chandanshive. He has further admitted as correct that the scene of incident was not visible from the field of PW 4 - Satyawan Chandanshive unless one crosses Karanji trees and thereafter the irrigation canal.
8. Prosecution has examined PW 4 - Satyawan Chandanshive another eye witness to the scene of the incident. According to him on the date of incident between 3 to 3.30 p.m. he was about to start electric motor pump in his field.
Shamrao along with his brother-in-law Kailas Bhosale were fishing on the bank ::: Downloaded on - 09/12/2014 23:46:52 ::: Rng 9 judg.931.12 of nalla situated near the field of Maruti. At about 4.30 p.m. Shamrao, Kailas and Satyawan heard sound of cutting of trees from the field of Maruti. Hence, Shamrao and Kailas went to the field of Maruti to see as to who were cutting the trees. However, PW 4-Satyawan Chandanshive stayed in his field and from the field he witnessed accused nos. 1 to 6 cutting trees in the field of Maruti.
According to him, there was an altercation between the deceased Shamrao and accused and thereafter he saw that accused no.4 and accused no.5 had caught the hands of Shamrao while accused no.2- Sakharam assaulted the deceased.
Accused no.6-Sachin Chandanshive was assaulting Shamrao with kicks and fist blows and accused no.3-Tanaji Chandanshive suddenly dealt a blow with an axe on the head of Shamrao and Shamrao sustained injuries and fell on the ground and thereafter accused no.1 Shrirang Chandanshive dealt a blow with an axe on the chest of Shamrao. Kailas thereafter started running from the scene of the incident and accused no.2-Sakharam Chandanshive and accused no.6 Sachin Chandanshive shouted out for catching Kailas and killing him.
In cross examination PW 4- Satyawan Chandanshive has admitted that other villagers had also reached to the scene of the incident. He has also admitted that he had informed police and the disclosure which was made by him to the police was made for the first time on the next day in the evening. He has ::: Downloaded on - 09/12/2014 23:46:52 ::: Rng 10 judg.931.12 admitted that after police had arrived at the scene of the incident they were asking villagers about the incident and he was present.
9. Learned counsel for the appellants has rightly urged before us that no reliance could be placed on the testimony of PW 4- Satyawan Chandanshive. We find that name of PW 4-Satyawan Chadanshive was not disclosed in the First Information Report lodged by Kailas. Satyawan also did not disclose about the incident till his statement was recorded by the police. Presence of PW 4 -
Satyawan Chandanshive at the scene of the incident is rendered doubtful.
10. Learned counsel for the appellants has urged before us that no reliance can be placed on the testimony of PW 3 - Kailas Bhosale as it is doubtful if he had accompanied deceased Shamrao to the scene of the incident. The learned APP has supported the findings arrived at by the trial Court.
11. We see no grounds whatsoever for doubting the presence of PW 3 -
Kailas Bhosale at the scene of incident. The First Information Report was lodged immediately by PW 3-Kailas Bhosale and police had arrived at the scene of the incident at the behest of Kailash. Failure of prosecution to examine other independent witnesses cannot be a ground for discarding the testimony of PW 3-
::: Downloaded on - 09/12/2014 23:46:52 ::: Rng 11judg.931.12 Kailas Bhosale. It is true that Kailas is a relative of deceased Shamrao but, relationship cannot be a ground for rejecting the testimony of an eye witness if the testimony otherwise inspires confidence. We therefore, find that implicit reliance can be placed on the testimony of PW 3 Kailas Bhosale.
12. The medical evidence of PW 6 Dr.Prahlad Gaikwad establishes that the deceased had sustained two injuries due to blows of axe. The accused had not assembled at the scene of the incident pursuant to any common object.
Assembly was therefore not an unlawful assembly as it could not have been imagined by the accused that the deceased Shamrao would be present at the scene of incident and would obstruct the accused from cutting the trees. Common object of the assembly therefore, could not have been to commit murder of the deceased Shamrao. After Shamrao had opposed the accused, other accused had only participated in giving fists and kick blows to the deceased Shamrao.
Accused no.3-Tanaji Chandanshive all of a sudden dealt an axe blow so also accused no.1-Shrirang Chandanshive. The said intention of accused no.1-
Shrirang Chandanshive and accused no.3-Tanaji Chandanshive to commit murder of the deceased Shamrao developed on the spur of the moment and it cannot be said that the said intention was shared by the other accused also. Other accused had not participated in the incident after axe blows had been delivered.
::: Downloaded on - 09/12/2014 23:46:52 ::: Rng 12judg.931.12 In our opinion, therefore conviction of the accused with the aid of section 149 of the Indian Penal Code is wholly unjustified. Other accused cannot be attributed either with common object or common intention of accused no.1-Shrirang Chandanshive and accused no.3-Tanaji Chandanshive to commit murder of the deceased Shamrao. Accused no.2-Sakharam Chandanshive, accused no.4-
Dnyanoba Chandanshive, accused no.5-Ananda Chandanshive and accused no.6-
Sachin Chandanshive in our opinion, are entitled to be given benefit of doubt.
13. Learned counsel for the appellants as urged before us that accused no.1-
Shrirang Chandanshive and accused no.3- Tanaji Chandanshive did not have intention to commit the murder of the deceased Shamrao. These accused had inflicted blows by axe on the head and chest of the deceased Shamrao. PW 6 Dr.Pralhad Gaikwad has opined that the injuries were sufficient in the ordinary course of nature to cause death and deceased Shamrao had died due to the said injuries. Since the injuries inflicted by these two accused were intentional injuries and were sufficient in the ordinary course of nature to cause death, intention of the accused to commit murder of deceased Shamrao would not be relevant. Case of accused no.1-Shrirang Chandanshive and accused no.3 Tanaji Chandanshive would be squarely covered by clause thirdly of section 300 of the Indian Penal Code.
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14. We accordingly, partly allow this Appeal and alter conviction of appellant no.1-Shrirang Namdeo Chandanshive and appellant no.3-Tanaji Namdeo Chandanshive from section 302 read with section 149 to section 302 read with section 34 of the Indian Penal Code. The sentence of imprisonment and sentence of fine is maintained. Appellant no.1-Shrirang Namdeo Chandanshive and appellant no.3-Tanaji Namdeo Chandanshive are acquitted of the offence punishable under sections 147, 148 and 506 part II read with section 149 of the Indian Penal Code. Appellant no..2-Sakharam Namdeo Chandanshive, appellant no. 4-Dnyanoba Dhoni Chandanshive, appellant no.5-Ananda Dhoni Chandanshive and appellant no.6-Sachin Shrirang Chandanshive are acquitted of the offence with which they were charged and convicted. Fine if paid, be refunded to them. Since appellant no.4-Dnyanoba Dhoni Chandanshive and appellant no.5-Ananda Dhoni Chandanshive are in jail, they be released forthwith if not required in any other case. Bail bonds of appellant no.2-
Sakharam Namdeo Chandanshive and appellant no.6-Sachin Shrirang Chandanshive stand cancelled.
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