Vishwambhar S/O Rajaram Ture And ... vs State Of Maharashtra
2002 Latest Caselaw 527 Bom

JUDGMENT

B.H. Marlapalle, J.

1. This appeal arises out of an order of conviction and sentence in Sessions Trial No. 105 of 1995 for offences punishable under Section 302 read with Section 34 (so far as all the Appellants are concerned), and Section 201 read with Section 34 (so far as Appellant Nos. 1 to 4 are concerned) of the Indian Penal Code. The impugned order is dated 8th Oct. 1996 passed by the learned 4th Additional Sessions Judge at Latur, before whom all the Appellants, along with one more accused i.e. Smt. Kesharbai (Accused No. 6), wife of Accused No. 1, were arrayed as accused and she has been acquitted by the learned Additional Sessions Judge. On admission of this appeal, bail application of Accused Nos. 1, 2 and was rejected and Accused No. 3 and 5 were enlarged on bail. Thereafter accused No. 4 was also enlarged on bail and the accused Nos. 3 to 5 continued to be on bail even as at present. Before we proceed to deal with the facts of this case, it would be relevant to record the relationship inter se between the accused. Accused Nos. 1 to 3 are real brothers and sons of Accused No. 5 and are all residents of village Lambotay in Taluka Nilanga of Latur district, whereas Accused No. 4 is the cousin of Accused Nos. 1 to 3. Accused Nos. 1 to 3 and 5 have their houses In the same compound but in different blocks. Part of the house of the Accused No. 5 was, at the relevant time, occupied by Kamala and Chandar and Kamala is the daughter of Accused No. 5's sister. Accused Nos. 1 to 3 were married and they were residing in the respective houses with their spouses. Accused No. 6 is the wife of Accused No. 1.

2. It is the case of the prosecution that on 28th of April. 1995 Dhondiram (PW-7), an illiterate agricultural labour, aged about 15 years, had seen deceased Shahaji in a compromising condition with his mother Laxmibai (PW-8) at about 9.30 p.m. when ho arrived back to his house and flashed torch light as the power supply to the village was disrupted till the midnight on 28th of April, 1995. Shahaji, having realised that he was seen in the company of Dhondiram's mother (PW-8), fled away by collecting and wearing his clothes and Dhondiram started abusing his mother as he could not tolerate her behaviour. Dhondiram's father Uttam Ture was out of station for the last about one week or so and some people gathered in front of the house of Dhondiram after they heard his abuses being hurled at his mother. Amongst them were Jijabai (PW-3), Bapu s/o Shetiba Kamble (PW-9) and the accused Nos. 1 to 5. When these persons asked the reason for Dhondiram's abusing his mother he only stated that he had seen Shahaji in her company and when he flashed the torch light he fled away. Accused No. 1 asked Accused No. 4 to find out whether Shahaji was present in the house of Accused No. 1 and after sometime Accused No. 4 came back and confirmed that: Shahaji was present there. It is also the case of the prosecution that Accused No. 5, when she was told the reason for Dhondiram abusing his mother, she stated that Shahaji was having extramarital relationship with Accused No. 6 and nothing was done by Accused No. 1 in that regard, Dhondiram was taken to the house of Accused No. 1 by Accused Nos. 1 to 5 and he was made to stand at the door itself. Shahaji was present in the house of Accused No. 1 when all these persons reached there and Accused Nos. 1 to 4 consumed liquor. Accused No. 4 pressed the mouth of Shahaji and pushed him flat on the ground and sat on his chest. Accused No. 3 stood on one thigh of Shahaji and lifted his other leg, Accused Nos. 1 and 2 assaulted Shahaji with sickle and scythe on or around his genital parts. Accused No. 3 lifted a wooden block (Machwa - leg of a wooden cot) and assaulted Shahaji at his genital parts. As a result of this assault, Shahaji died and his, body was lifted by the Accused Nos. 1 to 4 and dumped on Nilanga Udgir road. While the accused Nos. 1 to.4 were assaulting Shahaji Accused No. 5 is alleged to have; stated to cut him into pieces. On the next day morning the dead body of Shahaji was noticed by some people, including Dhondiram, and the Police Station at Nilanga received an anonymous call regarding the same. Shri Gangadhar s/o Kondiba Waghmare (PW-11), who was attached to the. Nilanga Police Station as P.S.I., on 29th April, 1995, reached the spot immediately after receiving the anonymous call at about 9.00 a.m. and started Inquest Panchanama. He had also received further inquiry in A.D. No. 8 of 1995 which was registered under the Nilanga Police Station. He completed the inquest Panchanama (Exhibit-P/20) and also drew the Spot Panchanama (Exhibit -P/21). The dead body was identified by Tatyarao Ture (PW-4), the father of the deceased Shahaji, Who registered a complaint with the Nilanga Police Station at about 5.30 p.m. on the same day after the dead body of Shahaji was cremated. F.I.R. was registered on the basis Of the said complaint against Accused Nos. 4 and 5 on 29th April, 1995. During the course of investigation, statements were recorded of other persons on 29th April, 1995 as well as on 30th of April, 1995 and the accused came to be arrested on 30th April, 1995. Statement of PW-2 was recorded on 1st May, 1995 and Accused Nos. 1 to 4 were taken to Lambota village on 2nd May, 1995 (the distance between Nilanga town and Lambota village is about 8 Kms). The spot of incident was pointed out by PW-7 Dhondiram and Spot Panchanama (Ex-hibit-P/37) was drawn by PW,-11. Sample of blood-stained soil as well as soil without blood-stains were collected from the spot of incident. At the spot of incident, the Accused Nos. 1 to 4 produced their cloths which they were wearing at the time of the alleged incident of assault and these cloths were attached under Panchanama signed by two witnesses by name Vishwambhar Sidram Ture (PW-5) and Vasant Vishwanath Ture. The seized articles were marked as Article Nos. 5 to 13 and the attach Panchanama was marked Exhibit -P/38. Dr. Shivaji Jyotiba Sawalkar (PW-1) conducted the post-mortem of the deceased on 29th April, 1995 between 1.00 p.m. to 2.30 p.m. at Rural Hospital, Nilanga and issued a death certificate on the same day. On 5th May, 1995 the post-mortem report was collected and on the same day the statements of PW-7 and his mother Laxmibai (PW-8) were recorded under Section 164 of the Criminal Procedure Code. On 6th May, 1995 the police custody of Accused Nos. 1 to 5 was extended and on 10th May, 1995 Accused Nos. 1 to 3 were taken to Lambota village. In the presence of witnesses i.e. PW-5 and PW-6 they showed their willingness to produce the weapons used in the assault on Shahaji. Memorandum regarding the disclosure and readiness of accused No. 1 was drawn at Exhibit-P/39 and from the dung pit in the courtyard of his house scythe was removed by the said Accused. The scythe was stained with blood and it was attached under Panchanama Exhibit P-30/1. Thereafter, Accused No. 2 volunteered to produce the sickle and memorandum at Exhibit 40 to the same effect was drawn in the presence of the same witnesses i.e. PW-5 and PW-6. Accused No. 2 then lead the team to his house along with the Investigating Officer and from the gap of the tin sheets (on the Varandah of his house) he took out the sickle hidden thereunder and it was stained with blood. He produced the same and handed over to the police which was attached under Panchanama Exhibit-P/40/ 1. Accused No. 3 also showed his readiness to produce the Machwa from his house in the presence of these two witnesses and, therefore, memorandum at Exhibit-P/4] was drawn. Accused No. 3, thereafter, lead the team to his house and on reaching the same place he produced a Machwa which was stained with blood and it was attached under Panchanama at Exhibit-P/41/1. On 12th May, 1995 the statements of Dhoridiram and Laxmibai i.e. PW-7 and PW-8 were recorded by the Special Judicial Magistrate under Section 164 of the Criminal Procedure Code and Accused No. 6 came to be arrested on that day. She was brought to Lambota village on 14th May, 1995 and she showed her willingness to produce the mop which was used for cleaning the blood stains at the spot of incident, from her house. Accordingly, memorandum was drawn at Exhibit-P/43. She, thereafter, lead the team to her house and produced the mop which was attached under the Panchanama at Exhibit-P/43/1 and it was marked as Article-17. On 21st May, 1995 Article Nos. 1 to 17 were sent for chemical analysis. On 2nd June, 1995 the Executive Magistrate was requested to draw the sketch of the spot of incident and further investigation was handed over to P.S.I. Gawali on 17th June, 1995. C.A. report was received on 5th Sept. 1995 and before that date the charge-sheet came to be filed on 25th July, 1995 in the Court of Judicial Magistrate. First Class at Nilanga who, in turn, committed the case to the Sessions Court for trial.

3. The prosecution has examined in all 11 witnesses and in the defence of Accused No. 4 one witness by name Mohan Ghorpade (DW-1) came to be examined. He is the real brother of the wife of the Accused No. 4. His testimony was only to establish that on the fateful night he was not present at village Lambota and, in fact, he had been to village Kalangi along with the witness. This testimony has been discarded by the learned Additional Sessions Judge and rightly so. PW-7 Dhondiram is the solitary eye-witness as per the prosecution case and his testimony has been accepted by the trial Court as being natural, cogent and trustworthy, The.trial Court has also considered the other evidence viz., the C.A. report regarding the blood-stains found on the clothes of the deceased as well as the clothes which were on the person of the Accused at the time of the alleged assault and so also the medical report and the evidence of Medical Officer PW-1. PW-5 and PW-6 were the Panch witnesses for the memorandum drawn regarding the willingness of Accused Nos. 1 to 3 for producing the weapons as well as the attachment of Panchanama drawn after these weapons were searched and seized.

4. Shri Kapadia, the learned counsel appearing for the Appellants, at the threshold, submitted that the testimony of PW-7 cannot be accepted and relied upon in view of the inherent contradictions and in any case there is nothing to believe that he was an eye-witness inasmuch as his presence at the spot of assault could not be proved by the prosecution. The behaviour of this witness, as gathered from the evidence on record, is not natural inasmuch after the alleged incidence of assault he claimed to have returned to his house in the midnight and got up on 29th April, 1995 early in the morning, went to the farm of PW-2 Shivaji where he was working as a servant on monthly basis, while proceeding to the said farm he noticed the dead body of Shahaji but did not inform to anyone, including his master, PW-2. He kept mum till he was called by the police on 30th April, 1995. The deposition of this witness suffers from contradictions and omissions on material aspects such as the description of assault as well as the weapons. Shri Kapadia further submitted that, in any case, the testimony of this witness also revealed that he was one of the accomplices and his involvement in the alleged crime could not be ruled out. An accomplice, therefore, cannot be a solitary eyewitness and the order of conviction and sentence, challenged before this Court, is based on the testimony of this witness. Coming to the medical evidence Shri Kapadia submitted that the injuries in column No. 17 of the post-mortem report were simple injuries and PW-1 in his depositions did not pointedly state that any of the injuries in column No. 15 of the post-mortem report would result in the death of Shahaji. Shri Kapadia, relied upon the statement of PW-1 while in the witness box that the deceased would have been saved if the medical aid was made available in time. He has also referred to the nature of injuries attributed to have been inflicted by the sickle and scythe and submitted that the prosecution has failed to relate these injuries to the respective weapons. Regarding the chemical analysers report it has been pointed out by the learned counsel for the Appellants that the blood-stains found present on the soil collected from the spot of assault were not identified to be of a human being and the blood group of the Accused was not identified. On the search and recovery of the weapons, the learned counsel made a legal submission that these are vitiated on account of failure of the Investigating Officer to obtain the signatures of the Accused on the memorandum of disclosure as well as the search and seizure Panchanama. In this regard, the learned counsel relied upon the decision of the Apex Court in the case of "Jackaran Singh v. State of Punjab" . It has also been urged before us, on behalf of the Appellants, that there was a delay in lodging the F.I.R. as well as recording the statement of PW-7 and this itself has vitiated the case of the prosecution. Reliance in this regard has been placed on the decision of this Court in the case of (i) "State of Maharashtra v. Bhanudas Sommanna Sangolkar" 1997 All MR (Cri) 807 : 1997 Cri LJ 3205 and (ii) on the decision of the Supreme Court in the case of "Ajai Singh v. State of Haryana" 1992 B Cr C 425. On the conviction of Accused No. 5 it was submitted before us that the prosecution had failed to bring home the charge against her and there is no evidence worth inspiring confidence to accept the prosecution case that she had participated in the assault or she was, in any way, party to the alleged crime. Even otherwise, the prosecution had failed to establish the ingredients of an offence punishable under Section 302 regarding motive intentions of the accused in eliminating Shahaji and in this regard reliance has been placed on the decision of the Supreme Court in the case of "State of Andhra Pradesh v. Rayavarapu Punnayya" as well as a decision of this Court in the case of "Walu alias Walmik Popat Khairnar v. State of Maharashtra etc." (2001) 1 B Cr C 633 : 2001 Cri LJ 1322. Lastly, Shri Kapadia submitted that, in any case, at the most the case of the prosecution may fall within the ambit of Section 325 of the Indian Penal Code and the prosecution has utterly failed to bring home the offence punishable under Section 302 read with Section 34 of the Indian Penal Code in the in-starit case. In support of these contentions he relied upon a decision of this Court in the case of Walu alias Walmik (supra).

5. The testimony of the solitary eye-witness (PW-7) is required to be assessed and considered on the basis of the attending circumstances, the status/profile of the witness and in corrobofation with the medical evidence as well as the recovery of weapons and other articles used in the assault. The Chemical Analyser's report also forms a part of corroborative evidence in accepting or relying upon the evidence of such an eyewitness.

6. The incident, leading to the alleged assault, namely the deceased having been seen by Dhondiram (PW-7) with his mother, in compromising position, has been brought out by the testimony of not only PW-7 but also his mother (PW-8) albeit her statement before the trial Court in the following words :

After the departure of Dhondiram I retired to the bed in the house. Around 9.00 p.m. Shahaji came to my house. He was removing his underwear with intent to sleep with me. By this time Dhondiram appeared there. He flashed the torch and then Shahaji fled away towards the house of Maroti Ture. The house of Maroti Ture is at the corner of house of Accused No. 5. Dhondiram started to abuse me....

The oral evidence of PW-3 and PW-10, in this regard, has also gone unchallenged.

The statement of Dhondiram (PW-7) regarding the arrival and presence of Appellants as well as their inquiring with him regarding the cause for him to abuse his mother has been supported by the depositions of Laxmibai (PW-8) and Bapu Kamble (PW-9) whose house is located on the northern side from the house of Dhondiram and these two houses were separated by a thatched structure between them. He specifically stated in his cross-examination that he heard Dhondiram abusing his mother for about 15 minutes. The said witness also supported the depositions of PW-7 that he was escorted to the house of Accused No. 1 by Accused No. 5. This testimony did establish that along with the Accused/Appellants Dhondiram (PW-7) went to the house of Appellant No. 1 and his presence at the place of assault, therefore, cannot be doubted. Before we proceed to deal with the evidence of PW-7 on the subsequent events we deem it appropriate to deal with the medical evidence as well as the search and recovery of blood-stained clothes as well as weapons.

7. The post-mortem report (Ext.-P/24) has been duly proved by PW-1 and the external injuries mentioned in columns 15 and 17 as well as the internal injury mentioned in column No. 21 are as under :

15. Injuries to external genitals indication of purging.

1. Incised wound on the Distal scrotum extending up to upper part of Anus. 4" x 2" x 1/8" vertical, sharp object and simple.

2. Incised wound on base of penis (sic) "x "1/2" x 1/8" oblique, sharp, simple.

 17. Surface wounds and injuries Their         1. Contusion Rt. outer part of orbit
    nature position dimensions (measured)        1/2" x "1/4"
    and directions to be accurately           2. Contusion Rt. arm lower part their 
    stated probable age and causes               at lateral side, size I-1/2" x 1".
    to be noted.
    
    If bruises be present what is the subcuta-3. Contusion left arm at lateral size
    neous tissues?                               6" x 3"

    (N.B. - When, injuries are numerous and   4. Contusion left forearm size
    cannot be mentioned within the space         3" x 1". 
    available they should be mentioned on a   5. Contusion left thigh mid part on 
    separate paper which should be signed.)      lateral side 6" x 3".
                                               
                                              6. Contusion right thigh 3" x 1" mid
                                                 part.
                                              7. Contusion right pubic region 3" x
                                                 2-1/2" all above of injuries.
                                                 Caused by Blunt & hard object 
                                                 they were simple in nature.
                                              8. C.L.W. on right thigh upper part 
                                                 lateral side 2" x 1" x 1/4".
21  ... 
    Organs of generation-                        Injury mention in column No. 15
    Additional remarks with where possible,      # of Rt. Pubic Bone & Rapture of

    Medical Officers deduction from the state    Rt. Iliac vessels.
    of the contents of the stomach as to time 
    of death and last meal.

 

8. The provisional death certificate (Ex-'hibit-P/25) issued on 29th April, 1995 by PW-1 gave the probable opinion regarding the cause of death as "Haemorrhagic shock due to rupture of Rt. Iliac vessels." PW-1 in his oral depositions before the Court stated that injury Nos. 1 to 8 were caused by hard and blunt object and they were simple in nature and the injuries mentioned in column Nos. 15 and 17 were ante-mortem injuries. On opening the dead body he found a fracture on right pubic bone and rupture of right iliac vessels it was corresponding to injury No. 8 in column No. 17 and this injury was possible by hard and blunt object. He further stated that on autopsy he opined that the probable cause of death was "Haemorrhagic shock due to rupture of Rt. Iliac vessels". The witness further deposed that the injuries in column No. 15 were possible by scythe (Art. No. 14) and they were also possible by means of a sickle (Art. No. 15). He further stated that the injuries at serial Nos. 1 to 8 in column No. 17 and the internal injury shown at column No. 21 were possible by Machwa (Art. No. 16). In his cross-examination he was emphatic in stating that injury No. 8 in column No. 17 was not possible by fall though it may be true for the injury Nos. 1 to 7 in the said column unless in a rare case if one falls on a guard stone while running. He also stated that the injuries shown in column No. 15 and the internal injury were not possible by vehicle accident. This medical evidence, in terms of the oral depositions of PW-1 and the postmortem report, duly proved by him, does support the findings of the learned Sessions Judge that Shahaji died a homicidal death and it was not an accidental death.

9. After their arrest by the police on 30th April, 1995, the Accused Nos. 1 to 4 were brought to village Lambota and they showed their willingness to hand over the clothes which they were wearing at the time of assault on Shahaji. When they were taken to their respective houses they handed over the blood-stained clothes which were attached under the Panchanama at Exhibit-P/38 in the presence of PW-5 and one more witness. In his depositions, the said witness has confirmed the fact of the Accused Nos. 1 to 5 handing over their blood-stained clothes to the Investigating Officer under Panchanama at Exhibit-P/38. On the same day, the soil samples, with and without blood-stains, were collected under Panchanama at Ext. P/37 and the same also is established in the depositions of PW-5. The Accused No. 1 had produced a blue shirt, green pant and a Sando banian from his house. Accused No. 2 had produced a white shirt with bloodstains on it and Accused No. 3 had produced a shirt of ash colour again tainted with blood, whereas Accused No. 4 has produced a yellow shirt and a pant and both of them were bloodstained {Art. Nos. 5 to 13).

The weapons were recovered on 10th May, 1995 and the said recovery as well as the memorandum has been duly proved in respect of Accused Nos. 1 to 3 by the evidence of Vishwambhar (PW-5) and Ramrao (PW-6). Shri Kapadia, the learned counsel for the Appellants, urged that these recoveries were vitiated on account of delay as well. We are not impressed by these submissions. The blood-stained clothes were handed over to the Investigating Officer by the Accused on 2nd May, 1995 and it will be unsafe to presume that on the same day they had made the confession regarding the weapons used by them in the assault and concealed in their respective houses. The evidence shows that such a confession was made for the first time on 10th May, 1995 and the Investigating Officer has taken immediate steps to bring them to village Lambota and memorandums were drawn. They were taken to their respective houses wherein they removed the concealed weapons and handed over to the Investigating Officer in presence of the witnesses i.e. PW-5 and PW-6. These recoveries have been made from their respective houses and not from any other place. The recovery has been duly proved by the prosecution before the trial Court. In the case of "Jackaran Singh v. State of Punjab" 1995 Cri LJ 3992 (supra) the prosecution had failed to prove the veracity of the seizure Panchanama as well as the memorandum of confession by examining the witnesses to the same as well as the Investigating Officer and these documents were not signed by the Accused. It was under these circumstances the Apex Court held that the recovery of the said articles (weapons) was unreliable and, therefore, the same was discarded. This proposition is not applicable to every case of recovery and certainly not in the instant ease. Both Vishwambhar (PW-5) and Ramrao (PW-6) have clearly supported the confessions made in their presence by the Accused concerned and the recoveries of the respective articles i.e. Article Nos. 14 to 16 which were used in the assault on the deceased. In the case of "Suresh Chandra Bahri v. State of Bihar" , regarding the scope of Section 27 of the Evidence Act, it is held that "the two essential requirements for the application of Section 27 of the Evidence Act are that (i) the person giving information must be an accused of any offence and (ii) he must also be in police custody. It is further stated that the provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safety be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be a false. More recently, in the case of "Pandurang Kalu Patil v. State of Maharashtra" (2002) 1 JT (SC) 229 : 2002 Cri LJ 1007, the scope of Section 27 of the Evidence Act was again examined and it is observed, thus (Paras 5 and 6) :

...The essence of Section 27 Is that it was enacted as a proviso to the two preceding sections (see Section 25 and 26) which imposed a complete ban on the admissibility of any confession made by an accused either to the police or to any one while the accused is in police custody. The object of making a provision in Section 27 was to permit a certain portion of the statement made by an accused to a police officer admissible in evidence whether or not such statement is confessional or non-confessional. Nonetheless , the ban against admissibility would stand lifted if the statement distinctly related to a discovery of fact. A fact can be discovered by the police (investigating officer) pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause. Recovery, or even production of object by itself need not necessarily resuit in discovery of fact. That is why Sir John Beamount said in Pulikuri Kottaya that "it is fallacious to treat the fact discovered in the section as equivalent to the object produced....

The Court further proceeded to state :

...No doubt in a given case, an object could also be a fact, but discovery of a fact cannot be equated with recovery of the object though the latter may help in the final shape of what exactly was the fact discovered pursuant to the information elicited from the accused....

10. We are, therefore, not in agreement with the contentions of the Appellants that the recovery of the articles i.e. Nos. 14 to 16 was vitiated on any account. At the same time, we are not impressed by the view taken by the learned Sessions Judge that the discoveries of these articles were doubtful because they were at belated stage.

11. The clothes handed over by the Accused Nos. 1 to 4 and attached as Article Nos. 5 to 13, as well as the weapons recovered as Articles Nos. 14 to 16 were found to be with blood-stains and the C.A. report (Ex-hibit-P/22) revealed that the articles Nos. 7 to 13 had blood-stains of blood group "B". The blood group of the deceased was also "B". As we have noted earlier, these articles were the clothes of the accused. Similarly, article Nos. 14 to 16 were also stained with blood group "B" as per the C.A. report. The blood group of the accused was not tested and it was possible for them to give explanation how the blood belonging to Group "B" appeared on their clothes if they did not belong to Blood Group "B". Section 106 of the Evidence Act has been rightly relied upon by the trial Court in support of the legal position that the fact which was within the knowledge of the accused only would have been proved by them. The fact of the bloodstains belonging to the blood group of the deceased does show that the weapons were used in the assault inflicted on him.

12. We, now, go back to the evidence of PW-7. He stated in his depositions that at the time of the assault on Shahaji by Accused Nos. 1 to 4 he was made to stand at the door of the Accused No. 1 where the assault had taken place and he described the modus operandi of the assault. He stated, on oath, that to begin with Accused No. 4 pressed the mouth of the deceased and made him flat on the ground and sat on his chest. Accused. No. 3 stood on one of the thighs of the deceased and lifted his other leg. Thereafter, Accused No. 1 was holding the scythe, Accused No. 2 was holding a sickle and both of them inflicted injuries to the deceased by the respective weapons. At that stage, Accused No. 5 uttered the words "..." [Shahajiche Tukade Kara). He was also emphatic in his depositions that the Accused No. 5 was present during the assault on Shahaji and before the drinking session preceding the assault he had seen Shahaji sitting in the house of Accused No. 1 with his wife (Accused No. 6). This witness was grilled through a very searching and lengthy cross-examination but his statement, on the description of the assault, the weapons used by each of the accused in inflicting the assault and on the genital organs of the body of the deceased, could not be shattered by the defence. He was specifically asked for the reasons as to why he did not disclose the incident of assault as well as the assault by the Accused/Appellants on the deceased till his statement was recorded by the police and he stated, on oath, before the trial Court in reply to this question, that he was threatened by Accused No. 1, on the fateful night, after their return after the disposal of the body of Shahaji, that he shall not disclose the incident to any one otherwise he would be implicated. The testimony of this witness, to our mind does not suffer from any contradictions and this illiterate boy of 16 years of age, when he stood in the witness box before the trial Court, was natural in his behaviour. His evidence has been corroborated by the medical evidence as well as the depositions of PW-2, PW-8 and PW-9.

13. The case of the defence before the trial Court was that the deceased either died an accidental death while he was running away after fleeing from the house of PW-7 or in the alternate he was assaulted by PW-7 or his henchmen on account of his illicit relationship with PW-8. These contentions have been, and rightly so, rejected by the trial Court.

14. It was also contended before us that the Complainant (PW-4) was closely related to PW-7 and, therefore, his evidence could not be relied upon. It has come in evidence that they were remotely related and that itself cannot be a reason to discard his testimony. It has also come in his evidence that the police had initially suspected him and he was detained in police custody for four long days. However, when the investigations proceeded in the right direction, he was released. In the behaviour of this witness there was nothing to disbelieve his testimony and the contention that there was a delay in his disclosure cannot be accepted. The assault was towards midnight, the dead body was noticed on public road in the morning when he was proceeding to his master's farm and he was under the threat of Accused No. 1 but ultimately when he was taken to the police station on 30th April, 1995 he disclosed the incident of assault as a result of which Shahaji lost his life. There is one more facet to the evidence of this witness. When he had seen the deceased in a compromising position with his mother on persistent inquiries by all the persons, who had gathered in front of his house on the fateful night, including the present Appellants, he refused to disclose this fact and went on to say that he had seen the deceased fleeing away from his house. He started abusing his mother for her behaviour and he expected his father to punish her on his return. He did every thing to maintain the honour and dignity of his family. It is obvious that this behaviour has also something to do with the fact that in spite of seeing the dead body in the early hours on 29th April, 1995 he neither disclosed the incident to his master nor to anyone else and he disclosed the incident of assault and the preceding incidence thereto only when he was taken to the police station. If this non-disclosure is deliberate, it is not only for a short duration but it was also intended to protect the family honour as long as he could do so in addition to the fact that he was under the threat by Accused No. 1.

15. Coming to the point of intention or motive Shri Chaudhari, the learned A. P. P. submitted that the prosecution proved its case of an offence punishable under Section 302 read with Section 34 of the Indian Penal Code in the instant case, including the aspect of common intentions of motives. We shall first refer to the decision relied upon by Shri Kapadia in the case of "State of Andhra Pradesh v. Rayavarapu" 1977 Cri LJ 1 (supra). In para 14, the Apex Court ruled, thus :

14. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of Clause (2). Only the intention of causing the bodily Injury cou-pled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing with the ambit of this clause. This aspect of Clause (2), is borne out by Illustration (b) appended to Section 300.

In the case of "State of Himachal Pradesh v. Jeet Singh" (1999) 2 Crimes 31 : 1999 Cri LJ 2025 (SC) it has been held that it is not the requirement of law that unless prosecution establishes a motive of the accused to murder the deceased, prosecution must necessarily fail. The Court, more specially observed , thus :

33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended....

In the case of "Vinod Kumar v. State of Madhya Pradesh" (2002) 2 JT (SC) 486, similar issue fell for consideration and it was urged before the Apex Court that the absence of motive in committing the crime would be fatal to the prosecution case for establishing an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The Court held that, assuming that there was no motive behind committing the crime, that would not in any manner, destabilize the prosecution case if the prosecution had succeeded in establishing beyond reasonable doubt that the accused are the persons responsible for the said crime.

16. Shri Chaudhary, the learned A.P.P. submitted before us that the intentions of the accused, who are the Appellants before us, in committing the assault on the deceased must be gathered from the method of assault, the weapons used in the assault and the delicate parts of the body selected for assault. He submitted that even if there was absence of any premeditation in assaulting the deceased, the manner of the assault, as has been established before the trial Court, was sufficient to gather the intentions of the accused/appellants in causing such injury that would result in the death of Shahaji. In the case of "Gurcharan Singh v. State of Punjab" the Apex Court held (Para 9) :

... but it has repeatedly been pointed out by this Court that where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no important.

In the case of "Datar Singh v. The State of Punjab" AIR 1974 SC 1193 : 1974 Cri LJ 908, the Apex Court reiterated that mere absence of a strong motive for committing the crime cannot be of any assistance to the accused if the offence could be proved by evidence."

The above two decisions were relied upon by the Apex Court in the case of "Rajesh Govind Jagesha v. State of Maharashtra" and it is held that where the direct evidence regarding the commission of offence is worthy of credence and can be believed the question of motive becomes more or less academic. Motive may be relevant in a case based upon circumstantial evidence only, being one of the circumstances. On the issue of common intentions the Supreme Court, in the said case, went on to state, thus :

7...Section 74 and Section 149 of the IPC are distinct and distinguishable. The meaning and scope of common intention and common object has properly been understood by the trial Court as well as the High Court. No premeditation or previous meeting of mind is necessary for the applicability of Section 34 of the IPC. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purposes of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence.

It is well established by a catena of decisions of the Apex Court that when the occurrence was spoken to by an eye-witness and the same was supported by the medical evidence it will not be necessary to investigate the motive behind such commission of offence. This principle is squarely applicable to the instant case as well. Once the ocular evidence of PW-7 regarding the weapons/articles for the offence and the way the offence was committed is accepted motive behind such an assault pales into insignificance.

17. The next question, that we are required to consider is, whether the offence of culpable homicide amounting to murder within the meaning of Section 300 of the Indian Penal Code is established by the prosecution on the basis of the evidence available on record, so as to sustain the conviction for an offence punishable under Section 302 of the Indian Panel Code. In this regard we may usefully refer to the judgment in the case of "Virsa Singh v. State of Punjab" , [described as locus classicus] in which the Supreme Court held that the following facts are required to be proved by the prosecution before it can bring a case within the ambit of Section 300 of the Indian Penal Code. (Para 12)

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is suffi-cient to cause death in the ordinary course of nature.

18. The evidence of the medical officer (PW-1) does not, to our mind, meet the fourth requirement to be proved by the prosecution. At the first instance, the medical officer stated in his deposition that if medical aid was made available in time the 'deceased could have survived. It has not come in his evidence that a particular injury i.e. either in column No. 15 or in column No. 21 could have Caused or was sufficient to cause death in ordinary course of nature. All the external injuries have been shown to be simple and in the death certificate the probable cause has been stated. Under such circumstances, it is clear that the offence of culpable; homicide amounting to murder under Section 300 of Indian Penal Code is not proved. The case of the prosecution falls within the ambit of Section 304, Part I. Shri Kapadia, the learned counsel submitted that even there is no evidence to convict the ac-cused for an offence punishable under Section 304, Part I and he urged that at the most the conviction could be under Section 325 of the Indian Penal Code. We do not agree with these submissions. On account of the fact that the testimony of PW-7, the eye-witness, is natural and reliable. The minor contradictions in his testimony do not, in any way, take the prosecution case out of the purview of Section 304, Part I of Indian renal Code. In the case of "Walu alias Walmik Popat" 2001 Cri LJ 1322 (Bom) (supra) Jagannath Khairnar was assaulted with wooden sticks and the attackers had run away after they saw some of the witnesses. The trial Court had disbelieved the recovery of the sticks for the reasons contained in para 21 of its judgment and this Court held those reasons to be valid. The trial Court, therefore, convicted all the Accused Nos. 1 to 7 for an offence punishable under Sections 148 and 325 read with Section 149 of the Indian Penal Code. This Court upheld the said conviction and dismissed the appeals against acquittal for offence punish-able under Section 302 read with Section 149 of the Indian Penal Code. The incident of assault, in the case before me, as well as the evidence, as has been brought on record, does make out a case for an offence punishable under Section 304, Part I read with Section 34 of the Indian Penal Code and the decision of this Court in Wain's case (supra) is not applicable.

19. The defence also contended before us that the participation of Appellant Nos. 4 and 5 in the actual assault requires to be distinguished on the ground that the Accused No. 4 did not use any weapon in causing the assault on the deceased and the use of weapon has been attributed only to Appellant Nos. 1 to 3. Similarly, accused No. 5 did not actually participate in the assault, as has been shown by the prosecution, and though her mere presence at the spot of assault, has come out through the evidence of PW-7. There is no case to support her conviction for an offence punishable under Section 304, Part I of Indian Penal Code. In the case of "Suresh v. State of U.P." 2001 AIR SCW 1051 : 2001 Cri LJ 1462, the Supreme Court held (Paras 22 and 23) :

To attract Section 34, IPC two postulates are indispensable (1) the criminal act (consisting of a series of acts) should have been done, nor by one person, but more than one person; (2) doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. Looking at the first postulate stated above, the accused who is to be fastened with liability on the strength of Section 34, IPC should have done some act which has nexus with the offence. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt. Even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amounts to an act.

...

We, therefore, do not find any case to accept the plea raised on behalf of accused Nos. 4 and 5 as their participation in the assault resulting in the death of Shahaji has been proved along with accused Nos. 1 to 3.

20. Coming to the conviction under Section 201 read with Section 34 of the Indian Penal Code, the evidence of P.W. 7 as has been discussed by the learned Additional Sessions Judge showing the involvement of accused Nos. 1 to 4 in removing the dead body from the place of assault, carrying it away outside the village, is proved. The dead body was located on the next day on Nilanga-Udgir road. P.W. 7 clearly stated that on return, after disposing of the dead body accused No. 1 had threatened him not to disclose the incident to anybody. It is, therefore, clear that accused No. 1 to 4 were knowing that Shahaji was dead on account of the assault caused by them and they, caused the evidence to disappear by throwing the dead body away. We do not find any reason to discard the evidence available on record, as well as the, reasoning given by the learned Additional Sessions Judge in support of the conviction for an offence punishable under Section 201 read with Section 34 of the Indian Penal Code. Accused No. 5 has been rightly acquitted from the said offence.

21. However, coming to the issue of sentence, we are of the view that the case of accused Nos. 4 and 5 cannot be equated with accused Nos. 1 to 3. As per the documents on record, as brought out before this Court, the accused No. 4 was not even seventeen years of age when the offence was committed. From the testimony of the eye-witness P.W. 7 it is revealed that he pressed the mouth of the deceased and made him flat on the ground and, thereafter, he sat on his chest. He did not use any weapon/article to assault the deceased. Similarly, the accused No. 5 was, though present all along at the spot of assault and she also shared common intention with accused Nos. 1 to 4 to assault the deceased, she did not actually participate in the assault. She is the mother of accused Nos. 1 to 3 and was shown to be of 50 years of age, when the incident had taken place. It would not be safe to sentence them on the same lines as the accused Nos. 1 to 3.

22. In the result, we allow the appeal partly and set aside the impugned order of conviction and sentence dated 8th October, 1996 passed by the learned 4th Additional Sessions Judge, Latur in Sessions Trial No. 105 of 1995 against all the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

Instead, we convict the said appellants for the offence punishable under Section 304, Part I read with Section 34 of the Indian Penal Code and sentence the appellant Nos. 1 to 3 to suffer Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 500 /-, in default to suffer further Rigorous Imprisonment for one year. However, the appellant Nos. 4 and 5 are sentenced to suffer Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 500/- each, in default to suffer further Rigorous Imprisonment for six months.

We confirm the order of conviction and sentence against the appellant Nos. 1 to 4 for offence punishable under Section 201 read with Section 34 of the Indian Penal Code, as passed by the trial Court.

Both the sentences shall run concurrently and all the accused are entitled for set-off under Section 428 of the Criminal Procedure Code in respect of the period they were in jail.

Appellant Nos. 3, 4 and 5 were on bail during the pendency of this appeal and their bail bonds hereby stand cancelled and they shall surrender to the bail immediately.

Issue the certified copy of this judgment on priority.