Criminal Appeal No.451/2000 with
Cri.Appeal No.13/2001
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.451 OF 2000
Ramesh s/o Raghvendra Gajmal
Age 34 years, Occu. Agri.,
R/op Dasala, Taluka Sailu,
District Parbhani ... APPELLANT
VERSUS
The State of Maharashtra,
(Copy to be served on Public
Prosecutor, High Court of
Bombay, Bench at Aurangabad) ... RESPONDENT
.....
Shri R.N. Chavan, Advocate for appellant (appointed)
Shri S.J. Salgare, A.P.P. for Respondent/ State
.....
WITH
CRIMINAL APPEAL NO.13 OF 2001
The State of Maharashtra
through Public Prosecutor,
High Court of Bombay,
Bench at aurangabad ... APPELLANT
VERSUS
1. Ramesh s/o Raghvendra Gajmal
Age 33 years, Occu. Agri.,
R/o Dasala, Taluka Sailu,
District Parbhani
2. Bharat s/o Raghvendra Gajmal,
Age 28 years, Occu. Agri.,
R/o Dasala, Taluka Sailu,
District Parbhani
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Criminal Appeal No.451/2000 with
Cri.Appeal No.13/2001
2
3. Raghvendra s/o Nanasaheb Gajmal,
Age 65 years, Occu. Agri.
R/o Dasala, Taluka Sailu,
District Parbhani ... RESPONDENTS
.....
Shri S.J. Salgare, A.P.P. for appellant/ State
Shri R.N. Chavan, Advocate for respondents (appointed)
.....
CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
DATE : 31st July, 2017.
JUDGMENT (PER SUNIL K. KOTWAL, J.) :
1. Criminal Appeal No.451/2000 is directed by original accused No.1 in Sessions Trial No.12/2000 against the judgment and order of conviction for the offence punishable under Section 304 Part I of the Indian Penal Code, passed by Sessions Judge, Parbhani. Criminal Appeal No.13/2001 is filed by State against the judgment and order of acquittal of original accused No.2 and 3 as well as for converting conviction of accused No.1 under Section302 of the Indian Penal Code in the same Sessions Case. These both appeals being against one and the same judgment, are disposed of by this common judgment.
2. Facts leading to institution of these appeals are that, accused No.1 to 3 were prosecuted for the offence punishable ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 3 under Sections 302, 326 and 323 read with Section 34 of the Indian Penal Code. Prosecution case in brief is that, informant Bhagirath Gajmal (P.W.1) used to reside at Mouze Dasala along with his brother Purushottam and father Asaram. Asaram was political personality in the village and he was active on behalf of Congress-I Party. On the other hand, accused No.1 to 3 were the members of Shiv Sena Party. Accused No.1 Ramesh and accused No.2 Bharat are the sons of accused No.3 Raghvendra. Relations between accused and family of Asaram Gajmal were strained. On 24/10/1999 at about 9.30 p.m., when Asaram returned to his residence, he informed Bhagirath (P.W.1) and Purushottam that on that day, on account of some oral altercations between him and accused No.1 and 2, they slapped him across his face. Therefore, Bhagirath (P.W.1) and his brother Purushottam along with their father Asaram went towards the residence of accused persons. On way, near the house of accused persons, they met with the accused No.1 to 3. That time, accused No.1 Ramesh and accused No.3 Raghvendra were armed with axes and accused No.2 Bharat was armed with knife in his hand. As soon as accused persons saw the informant Bhagirath and others, they rushed on their person. Initially accused No.2 Raghvendra stabbed Asaram on his upper arm. Asaram fell down on the ground. That time, accused No.1 ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 4 Ramesh inflicted single axe blow on the left side of head of Asaram. Asaram sustained serious bleeding injuries. Therefore, when Bhagirath (P.W.1) and Purushottam tried to lift their father, that time accused No.3 inflicted blow of the handle of axe on the back of Bhagirath and inflicted axe blow on the wrist of Purushottam. Thereafter, Ganesh Gajmal and Narayan Nathrao Gajmal (P.W.3) rushed on the spot and they rescued Asaram and his sons from the clutches of accused persons. Raghvendra and his brother took Asaram to Police Station, Sailu. Head Constable Chavan (P.W.6) obtained F.I.R. (Exh.32) of Bhagirath (P.W.1) on 25/10/1999 at about 00.35 Hrs. Injured Asaram was referred to Civil Dispensary at Sailu. Dr. Shri R.M. Sharma (P.W.7) examined injured Asaram and after first aid, looking to the serious condition of Asaram, referred him to Civil Hospital, Parbhani for better treatment. Asaram was admitted in Civil Hospital, Parbhani where Dr. R.M. Kanakdande (P.W.8) examined him and serious head injury was noticed. Surgeon Dr. R.J. Rathod examined and started treatment to Asaram. However, looking to the deteriorating condition of Asaram, he was referred to Government Medical College, Aurangabad where he succumbed to his injuries. Dr. S.P. Tapse (P.W.9) performed autopsy examination on dead body of Asaram on 25/10/1999 in between 8.00 p.m. to 9.00 p.m. and issued post mortem notes ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 5 (Exh.58). He opined that, the cause of death of Asaram was shock and haemorrhage due to fracture of skull. By that time, offence was already registered at Police Station, Sailu vide Crime No.153/1999 and investigation was started by Head Constable Sawant. However, later on, investigation was handed over to A.P.I. Tilekar on 25/10/1999 itself. Spot panchanama (Exh.33) was prepared and blood stained clothes were seized from accused No.1 to 3. During the course of investigation, accused were arrested and as per their statements, knife (Article 11) and two axes (Articles 10 and 12) were seized. Even blood stained clothes of the deceased were seized. All seized articles were referred to Chemical Analyser. After completion of investigation, charge sheet was submitted before Judicial Magistrate, First Class, Sailu.
3. Offence punishable under Section 302 of the IPC being exclusively triable by Court of Sessions, this case was committed to Sessions Court, Parbhani. Charge (Exh.17) was framed against accused No.1 to 3 for commission of the offence punishable under Sections 302, 326, 323 read with Section 34 of the Indian Penal Code. Alternate charge was also framed individually against all accused persons. They pleaded not guilty and claimed trial.
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Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 6
4. Prosecution examined total 10 witnesses. Defence did not lead any evidence. However, accused No.1 submitted written statement (Exh.71) which was adopted by other accused and contended that, on the day of incident, at about 9.00 p.m., when accused No.1 and 2 were sitting in front of their house, that time, deceased Asaram proceeded in front of their house while abusing under the influence of liquor. That time, there was altercation of hot exchange of words between accused and Asaram. Thereafter, Bhagirath (P.W.1) and Purushottam came on the spot holding axes in their hands. They quarreled and abused the accused persons and inflicted axe blow on the head of accused No.1 and 2 by butt end of axe blade, due to which accused No.1 and 2 sustained bleeding injuries. Immediately accused No.2 Bharat lodged report to Police Station, Sailu and, therefore, the accused No.1 and 2 were already prosecuted before Judicial Magistrate, First Class, Sailu. In other words, accused denied to have caused injury to Asaram and in the alternate, they have taken self defence that on the date of incident, deceased Asaram and his two sons went to the house of accused persons armed with axes and they assaulted the accused persons. After sustaining injuries, while exercising right of self defence and due to apprehension of danger to their life, they might have caused the death of Asaram.
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5. Learned Advocate for the accused No.1 assailed the judgment of the trial Court on the ground that the three eye witnesses examined by prosecution are suppressing material facts from the Court and they are not truthful witnesses. He also pointed out certain contradictions and omissions emerging in the testimony of these witnesses. His next limb of the argument is that, the weapon of the offence and seized clothes of the accused were not properly sealed. Therefore, in absence of evidence of carrier of the muddemal, prosecution cannot rule out a possibility of tampering of the muddemal when it was kept at Police Station.
6. On the other hand, learned A.P.P. for the State supported the judgment passed by trial Court so far as conviction of accused No.1 is concerned.
7. Prosecution has placed reliance on direct evidence of three eye witnesses i.e. Bhagirath (P.W.1), Haribhau (P.W.2) and Narayan (P.W.3). The circumstantial evidence relied by prosecution is seizure of blood stained clothes from the accused No.1 to 3 and seizure of weapons of the offences. Prosecution has also placed reliance on medical evidence of Dr. R.M. Sharma (P.W.7), who examined the injured Asaram at Civil Dispensary, Sailu and evidence of Dr. S.P. Tapse (P.W.9), who performed autopsy examination of the dead body of Asaram. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 :::
Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 8
8. In the case at hand, homicidal death of deceased is not at all disputed. Otherwise also, Dr. S.P. Tapse (P.W.9), who performed autopsy examination of dead body of the deceased on 25/10/1999 at Government Medical College, Aurangabad, has categorically proved the following external injuries on the dead body :-
(1) Sutured wound over left temporary region, oblique, 9.5 cms. x 1.5 cms., four sutures present, blood clots protruding through fiture gaps of cutting sutures, edges clean-cut, swollen contused, muscle clean-cut, pieces of brain attached to blood clots.
(2) Sutured wound over back of left arm, curved 6.5 cms. long, six sutures present, edges contused swollen.
(3) Abrasion over left elbow posteriori, 1 x 1 Mcs. Reddish (4) Abrasion over back in middle at the level of T-12, 1 x 1 cms., reddish.
(5) Contusion over left leg anteriorly in middle part, 3 x 2 cms., reddish.
9. Dr. Tapse (P.W.9) has also proved haematoma over left tempero frontal, tempero parietal and tempero occipital region of the head of deceased, together with depressed fracture of skull of left temporal bone of size 6 x 1 cms. He also found the dura cut was lacerated at fracture size. He opined that, external injury No.1 with corresponding internal injuries were sufficient to cause death in ordinary course of the nature and the ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 9 cause of death of the deceased was shock and haemorrhage due to fracture of skull. Despite searching cross-examination by defence counsel, nothing could be brought on record to shake the opinion of Dr. Tapse (P.W.9) regarding cause of death of the deceased. On the other hand, the entire cross-examination was concentrated on the point of type of the external injury and probable use of the weapon. Nobody assailed the opinion of Dr. Tapse regarding cause of death due to fracture of skull. Therefore, the expert evidence of Dr. Tapse is sufficient to hold that the death of deceased Asaram was homicidal death.
10. Now we proceed to analyze the evidence of prosecution to ascertain whether prosecution can establish that with requisite intention in furtherance of their common intention, accused caused the homicidal death of deceased or not.
11. Bhagirath (P.W.1) deposed before the Court in consonance with recitals of the F.I.R. (Exh.32) that on the date of incident, at about 9.30 p.m., he came to know about insult of his father Asaram by accused who slapped him across his face. Therefore, to question the accused persons, along with the deceased and his brother Purushottam, this witness went towards the residence of accused persons. On way, but near the house of accused, he saw all the accused persons who were ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 10 armed with axes an knife. Accused No.1 to 3 rushed upon them and initially accused No.2 Bharat stabbed deceased Asaram on his left arm by knife. When his father fell down, thereafter accused No.1 Ramesh inflicted axe blow by holding it in his both hands on the left side of the head of Asaram. As Asaram became unconscious, this witness and his brother Purushottam started lifting him, and at that time, accused No.3 Raghvendra inflicted blow of the handle of axe on the back of Bhagirath (P.W.1) and blow of handle of axe on the left wrist of Purushottam. Thereafter, villagers Ganesh @ Ganpat and Narayan (P.W.3) rushed on the spot and separated the quarrel. Evidence of Bhagirath (P.W.1) is assailed by defence on the ground that he being related with the deceased and interested, his testimony cannot be relied upon. However, only because a witness is nearly related with the deceased, his testimony cannot be discarded if otherwise it is reliable. Only such testimony shall pass the test of close scrutiny.
12. After careful examination of evidence of Bhagirath (P.W.1), it emerges that, though he claimed that due to assault by accused No.3 Raghvendra he sustained injuries on his back and his brother Purushottam sustained bleeding injury on his left wrist and though he claimed that both of them were referred to Medical Officer, Civil Dispensary, Sailu for medical examination ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 11 and doctor did not examine them. Dr. Sharma (P.W.7), Medical Officer, Sailu did not say that Bhagirath (P.W.1) or his brother Purushottam were referred to him for medical examination. On the other hand, A.P.I. Tilekar (P.W.10), who is the investigating officer, nowhere deposes regarding visible or bleeding injury on the body of Bhagirath (P.W.1) or Purushottam. On the other hand, Tilekar (P.W.10) admits that he did not collect the medical certificate of these both important witnesses. Thus, it appears that, neither Bhagirath nor Purushottam sustained any injury as claimed by Bhagirath (P.W.1). Learned trial Court held that, such improvement made by Bhagirath (P.W.1) is material improvement. However, such type of exaggeration by related witness is natural. Related witness always tries to add some embroidery to their basic version. Therefore, only on the ground of such trifling improvement, the testimony of Bhagirath (P.W.1) cannot be discarded.
13. However, it cannot be ignored that, in the cross- examination of Dr. Sharma (P.W.7), defence has brought on record that on 25/10/1999 at 00.25 a.m., he examined accused No.1 Ramesh Gajmal and found one contused lacerated wound on the forehead in centre and one contused lacerated wound on the scalp in centre, extended up to left tempero parietal region of the head of accused No.1. Dr. Sharma (P.W.7) also found one ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 12 contusion on left forearm and another contusion on right palm at the base of great finger of accused No.1. This witness admits that, both contused lacerated wounds were bleeding at the time of examination. Dr. Sharma (P.W.7) has also proved two contused lacerated wounds on the head of accused No.2 Bharat and one contusion on left forearm of accused No.2. He also admits that, both contused lacerated wounds on the head of accused No.2 Bharat were bleeding at the time of examination. However, Bhagirath (P.W.1) admits in his cross-examination that, he did not notice bleeding injuries either on the head of accused No.1 Ramesh or on the head of accused No.2 Bharat. Thus, obviously Bhagirath (P.W.1) is suppressing material facts from the Court and, therefore, he cannot be termed as "truthful witness". Therefore, it will be highly risky to base the conviction of the accused on the sole testimony of Bhagirath (P.W.1) though his testimony before the Court is not in conflict with F.I.R. on material particulars. In the circumstances, without proper corroboration, only on the basis of evidence of Bhagirath (P.W.1) accused cannot be convicted.
14. Prosecution has also examined Hairbhau Gajmal (P.W.2) as one of the eye witness, who deposed that, on the date and time of the incident, he noticed quarrel near the house of Ramkishan Karwa on main road and in his presence accused No.2 ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 13 stabbed deceased Asaram by knife on his left arm and when Asaram fell on the ground, accused No.1 Ramesh inflicted axe blow on the left side of head of Asaram. He also repeated same story that when Bhagirath (P.W.1) and his brother Purushottam tried to lift injured, that time accused No.3 Raghvendra assaulted them by handle of the axe. However, name of this so called important eye witness is neither mentioned in F.I.R. (Exh.32) as one of the person who separated accused from the injured Asaram, nor Bhagirath (P.W.1) or Narayan (P.W.3) have whispered single word regarding presence of Haribhau (P.W.2) on the spot as helping hand to separate the accused persons from injured. Thus, presence of Haribhau (P.W.1) on the spot at the time of occurrence is itself doubtful.
15. Further examination of this witness indicates that, neither he helped Bhagirath (P.W.1) and his brother to lift the injured Asaram from the spot nor he helped them to take that unconscious injured person up to their residence. His oral testimony before the Court is also in variance with his statement recorded by Magistrate under Section 164 of the Code of Criminal Procedure on material particulars. In the statement before Magistrate (Exh.36), this witness deposed that, after assault by accused No.1 and 2 to Asaram, Bhagirath (P.W.1) and Purushottam arrived on the spot and separated the deceased ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 14 from accused persons. This statement before the Magistrate falsifies the prosecution case that deceased Asaram along with Bhagirath (P.W.1) and Purushottam went towards the house of accused, and on way, the deceased was assaulted by accused persons. Therefore, the oral testimony of Haribhau (P.W.1) is obviously not truthful and reliable which can be used as corroborative piece of evidence to the version of Bhagirath (P.W.1).
16. The third and last eye witness examined by prosecution is Narayan Gajmal (P.W.3). Name of this witness is mentioned in F.I.R. as eye witness, who separated the injured deceased from the accused persons. However, from his testimony, it emerges that, his residence is at long distance from the spot of the incident and, therefore, he is only chance witness who was passing by the road at the time of occurrence. Though in his examination-in-chief he fully supported the prosecution case, the cat has come out of the bag when Narayan (P.W.3) was subjected to cross-examination. Narayan (P.W.3) has admitted in his cross-examination that at the time of occurrence, though he separated the deceased from accused persons, he did not help while lifting or carrying Asaram to his house and he actually did not touch the body of Asaram. From his cross-examination, it emerges that, though he saw the assault to Asaram by knife by ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 15 accused No.2 Bharat, he did not raise hue and cry and he did not call anybody for help. This conduct of witness is certainly abnormal. He admits that, he did not notice bleeding injury on the head of accused No.1 Ramesh and accused No.2 Bharat, and he did not notice any blood stains on the clothes of these accused. However, as observed above, Dr. Sharma (P.W.7) has falsified the version of this witness, by deposing that two injuries on the head of accused No.1 and 2 were bleeding at the time of medical examination at midnight on the date of occurrence. Thus, it appears that, this witness is also trying to suppress real occurrence from the Court as to how accused No.1 and 2 sustained bleeding injuries on their head at the time of occurrence of the incident. Another important admission of Narayan (P.W.3) is that, though he witnessed the actual commission of murder of Asaram at the hands of accused persons, he did not tell anybody about this occurrence till his statement was recorded by police. He also admits that, his statement was recorded by police on 28/10/1999 i.e. after 4 days from the date of occurrence of the incident. Keeping mum by this witness for the period of 4 days though he was eye witness of the occurrence, creates doubt regarding his presence at the time of occurrence. Therefore, we find that, learned trial Court rightly disbelieved the testimony of Narayan (P.W.3). ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 :::
Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 16
17. Learned defence counsel placed reliance on the case of Babu Ram V/s State of Punjab, reported in (AIR 2008 SC 1260), in which the Hon'ble Supreme Court observed in para No.18 as under :
"18. It is a well-settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :-
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
18. In the light of settled principles of law by Apex Court in cited authority, if the evidence of above discussed witnesses is considered, it becomes clear that, prosecution has conveniently suppressed the genesis of the occurrence as to how the deceased and his two sons reached on the spot and how at the time of ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 17 occurrence Ramesh accused No.1 and Bharat accused No.2 sustained injuries on their head. On account of suppression of the genesis of the occurrence, the learned trial Court has rightly accepted the probability of the defence taken by accused persons that accused Bhagirath, his brother Purushottam and deceased attacked the accused persons, that time accused No.1 Ramesh might have revolved axe in his hand in exercise of right of self protection and that time the axe might have hit on left side of the head of Asaram. However, causing grave injury on the head of Asaram by axe by accused No.1 Ramesh, which resulted into fracture of his skull and internal haematoma which was sufficient to cause death in ordinary course of nature, indicates that, accused No.1 had intention to kill Asaram at the time of inflicting the blow of axe, though in exercise of right of self protection. At least such probability cannot be ruled out in view of suppression of genesis of the occurrence by the prosecution. Thus, inference can be drawn that accused No.1 Ramesh caused homicidal death of Asaram in exercise of right of private defence.
19. However, at the same time, it cannot be ignored that, from the cross-examination of Dr. Sharma (P.W.7), it also emerges that, the injuries sustained by accused No.1 and 2 were probably caused by hard and blunt object, and nature of injuries were simple. In the cross-examination of Dr. Sharma (P.W.7), ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 18 defence has not brought on record that the injuries on the head of accused No.1 and 2 were possible by butt of the axe as contended by accused persons in the written statement (Exh.74), submitted under Section 313 of the Code of Criminal Procedure. Therefore, only one probability can be accepted that Bhagirath, Purushottam and Asaram attacked accused persons and inflicted stick blows. That time accused No.1 might have used axe as weapon for self protection. The use of such deadly weapon, when the accused No.1 was attacked by weapon like stick, is sufficient to hold that, accused No.1 Ramesh had exceeded the right of private defence at the time of occurrence. Therefore, at the most prosecution can establish commission of the offence by accused No.1, punishable under Section 304 Part I of the I.P.C.
20. After going through the cross-examination of Dr. Sharma (P.W.7) and Dr. Tapse (P.W.9), it emerges that, hue and cry has been raised by learned defence counsel on the ground that, regarding injury No.1, Dr. Sharma (P.W.7) opined that it was contused lacerated wound. On the other hand, according to Dr. Tapse, that injury was incised wound. However, it cannot be ignored that, Dr. Tapse (P.W.9) examined the wound when it was already sutured by Dr. Sharma (P.W.7) in Civil Dispensary at Sailu when injured was brought to his hospital immediately after the occurrence. The injuries sustained by Asaram were also ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 19 handled and treated by Dr. Rathod even at Civil Hospital, Parbhani. Same sutured wound was opened by Dr. Tapse (P.W.9) at the time of post mortem examination. Thus, obviously, opinion of Dr. Tapse (P.W.9) that injury No.1 shown on the body of deceased was incised wound, will not prevail over the opinion of Dr. Sharma (P.W.7). Otherwise also, much importance cannot be given to these conflicting opinions for the simple reason that both experts are constant regarding their opinion that injury No.1 is possible due to axe.
21. So also, version of Dr. Tapse (P.W.9) that injuries found on the body of accused No.1 and 2 might be self inflicted, does not carry any importance for the simple reason that he was not expert who personally examined accused No.1 and 2 immediately after the occurrence of the incident. In fact, he expressed such opinion on the basis of injury certificates of accused No.1 and 2. On the other hand, Dr. Sharma (P.W.7), who examined accused persons, is the proper expert witness who can opine regarding the nature of injuries sustained by accused No.1 and 2. Prosecution did not take pains to bring on record through Dr. Sharma (P.W.7) that the injuries found on the body of accused No.1 and 2 were probably self inflicted. Therefore, the opinion given by Dr. Tapse (P.W.9) regarding possibility of self infliction of injuries by accused No.1 and 2 deserves to be ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 20 ignored.
22. Accordingly, our conclusion is that, conviction of the accused No.1 Ramesh for the offence punishable under Section 304 Part I of the Indian Penal Code is proper and needs no interference. Learned defence counsel placed reliance on the case of Kuldeep Singh Vs. State of Haryana reported in (AIR 1996 SC 2988) and submitted that, as accused No.1 has already undergone one year imprisonment till conclusion of the trial, the sentence imposed by trial Court needs to be reduced up to one year already undergone by accused No.1. However, this submission cannot be accepted for the simple reason that, in above cited authority, in the peculiar facts and circumstances, sentence was reduced by Apex Court and, therefore, such observations cannot be treated as precedent which is binding to this Court. On the other hand, in the present case, 65 years old person was killed at the hands of accused No.1 by use of deadly weapon like axe. Therefore, the sentence of imprisonment of rigorous imprisonment for five years and fine of Rs.2000/- imposed by learned trial Court is just and proper and needs no interference.
23. So also, regarding acquittal of accused No.2 and 3, it is suffice to say that, from the cross-examination of Dr. Sharma ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 21 (P.W.7) and Dr. Tapse (P.W.9), it emerges that, injury on the left arm of deceased was not possible by the knife seized from the possession of accused No.2 Bharat. So also, version of prosecution witnesses regarding causing injury by accused No.3 Purushottam is not acceptable as it is not supported by any medical evidence. In the circumstances, the view taken by learned trial Court while acquitting the accused No.2 and 3 of the offences punishable under Sections 326, 323 read with Section 34 of the I.P.C. as well as under Section 302 read with Section 34 of the I.P.C. is probable view and cannot be interfered in this appeal.
24. Accordingly, our conclusion is that, the conviction and sentence imposed by learned trial Court against accused No.1 Ramesh for the offence punishable under Section 304 Part I of the I.P.C. as well as acquittal of accused No.2 and 3 of the offence punishable under Sections 302, 326, 323 read with Section 34 of the I.P.C. is proper and needs no interference. It follows that, Appeal filed by accused No.1 Ramesh as well as appeal filed by the State against acquittal of accused No.2 and 3 deserve to be dismissed. Hence, the following order :
ORDER
(i) Criminal Appeal No.451/2000 and Criminal Appeal ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 00:14:17 ::: Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001 22 No.13/2001 are dismissed.
(ii) Accused No.1 Ramesh Raghvendra Gajmal shall surrender to his bail bonds immediately before the trial Court to undergo the punishment.
(iii) Under Section 437-A of the Code of Criminal Procedure, accused No.2 Bharat Raghvendra Gajmal and accused No.3 Raghvendra Nanasaheb Gajmal shall execute before the trial Court bail bonds with sureties for the amount of Rs.10,000/- (Rupees ten thousand) each to appear before the Supreme Court as and when notices are issued to them in respect of any proceedings filed against this judgment and the said bail bonds shall remain in force for a period of six months from today.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
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