Jivan S/O Nathu Bangle vs The State Of Maharashtra Through ...
2002 Latest Caselaw 584 Bom

JUDGMENT

R.K. Batta, J.

1. In these appeals, the appellants who arc brothers were tried for murder of their own brother Ramji under Section 302 read with Section 34 of the Indian Penal Code, in Session Trial No. 21 of 1996. The learned Additional Sessions Judge, Bhandara, vide judgment dated 6.2.1997 held both of them guilty for murder of Ramji under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo life imprisonment, besides imposition of fine of Rs. 500/- each, in default rigorous imprisonment one year. The benefit of period spent in custody during trial was given to the appellants under Section 428 of the Cr.P.C. The appellants challenge their conviction and sentence in these appeals.

2. The prosecution has in all examined 7 witnesses in support of the charge. The prosecution case is that the appellants are running business of illicit liquor, which was not liked by elder brother deceased Ramji. On one occasion he persuaded them to discontinue the said business. Lately, Ramji had tried to persuade them 8 days prior to the incident. On the date of the incident there was Bhajan programme in the house of one Sonar, which was adjacent to the house of mother of the appellants and deceased Ramji. The deceased Ramji and mother were in the house. On the fateful night, the deceased and his mother were lying in the Chhapari and at about 9.00 or 10.00 p.m. the appellants came to the Chhapari. When the appellants came, mother of Ramji switched on light and the appellants went away. After about half an hour the appellants again came, switched off the light; thereafter appellant Dnyneshwar gave a blow of jaksaw to Ramji and appellant Jivan also gave blow of axe on him. The mother of the deceased immediately switched on the light and saw the appellants who were about to run away. She raised hue and cry and people gathered. Later on he was taken to the hospital and found to be dead. The mother of the deceased who is also mother of the appellants lodged report with the police, which resulted in filing of the charge-sheet against the appellants. The police had recovered jaksaw as also blood stained clothes of appellant Jivan. The case of the appellant is of total denial.

3. The learned Advocate Shri Daga argued the appeal on behalf of the appellant Jivan and the learned Advocate Smt. Smita Deshpande appointed in the Legal Aid Scheme argued the appeal on behalf of the Dnyaneshwar.

4. The learned Advocate Shri Daga submitted before us that the axe with which the appellant Jivan is said to have assaulted Ramji had not been recovered; that the blood group on the pant of Jivan has not been determined, as a result of which the said evidence cannot be used against him; that P.W. 5 has admitted that the complainant had not stated in the F.I.R. that Ramji was not liking of selling liquor by accused Dnyaneshwar at the house and the accused Dnyaneshwar had asked him who was he and that there are improvements on the material particulars in the testimony of P.W. 2 mother of the deceased, as also the mother of the appellants in relation to the involvement of appellant Jivan in the crime. He tried to persuade us that the F.I.R. is a substantitive piece of evidence and should be read in evidence but he was not able to substantiate his contention by any ruling on the point. According to him, there is difference between F.I.R. and statement recorded under Section 161 of the Cr.P.C. as F.I.R. is not part of investigation and statements recorded under Section 161 of the Cr.P.C. are part of investigation. He also pointed out that the role played by Jivan was not even reflected in the printed F.I.R. under column 6, which is Ex. 34 on record. In view of above submissions and Division Bench ruling of this Court in P. V, Siddha v. Slate of Maharashtra 2001 (1) Crimes 393 the evidence of mother P.W. 2 should be discarded and the appellant be acquitted of the charge.

5. The learned Advocate Smt. Smita Deshpande also submitted that the evidence of P.W. 2, who is mother of the deceased as also mother of the appellants cannot be believed because not only she was living with deceased Ramji but also she was enimical to the appellants in as much as the appellants were not supporting her. According to her, if the evidence of the mother is discarded, there is no other sufficient evidence on record to bring home the guilt of the appellants and that in the circumstances the appellants be acquitted of the charges.

6. Learned A.P.P., urged before us that there is no reason to disbelieve P.W. 2 Bhurkabai; the weapon jacksaw with which the appellant Dnyaneshwar had assaulted the deceased was seized on which human blood was found; that the pant of appellant Jiwan was attached from his person on which there were human blood and evidence of P.W. 3 Harishchandra is sufficient to prove the charges. He therefore, argued that the appeal be dismissed.

7. The prosecution case mainly rests upon the evidence of P.W. 2 Bhurkabai, who is the mother of the appellants as also the mother of the deceased which is supported by the evidence of P.W. 3 Harishchandra, who saw the appellants running away from the house of deceased Ramji, medical evidence on record as also the presence of human blood on the pant recovered from the person of appellant Jivan, besides the recovery of blood stained jacksaw said to have been used by Dnyaneshwar in the commission of crime.

8. P.W. 2 Bhurkabai who is the mother of deceased as also the mother of the appellants has stated that appellant Dnyaneshwar was distilling the liquor and doing illegal business. Similarly, appellant Jivan was also doing the same business. She has further stated that the appellants were consuming liquor in the house and behaved in disorderly manner with her; deceased Ramji was telling the appellants to stop business of illicit liquor and about 8 days prior to the incident the appellant Dnyaneshwar started residing with appellant Jivan. About 8 days prior to the incident Ramji being elder brother had asked the appellants to stop illicit liquor business on account of which the appellant had assaulted him. She has further stated that on the day of incident Bhajan programme was going in the house of one Sonar adjoining to her house but she along with deceased Ramji went to bed after finishing meals for sleeping. According to her, electric light in his house were burning in the Chhapari but before going to bed she had switched off the same. Both the appellants came at about 9.00 to 10.00 p.m. to the Chhapari. According to her, after arrival of the accused she had switched on the light and the accused went back. She further stated that after half an hour both appellants entered in the Chhapari and they switched off the lights; the appellant Dnyaneshwar gave a blow of jacksaw to Ramji and appellant Jivan also dealt a blow of axe on him; both the appellants dealt blows of jacksaw and axe one after another on Ramji. In the mean time she switched on the light and saw the appellants running away. She raised hue and cry. Thereafter deceased was taken to the hospital where he was found to be dead and P.W. 2 lodged the complaint with the police. During the cross-examination she stated that appellants were not providing money to her and on account of this she was not on talking terms with them. The testimony of P.W. 2, who is mother of the deceased, as also mother of the appellants, proves the involvement of the appellants in the assault on Ramji. We have no reason to disbelieve the testimony of mother P.W. 2 Bhurkabai against her own sons. Both of them had come with sharp cutting weapons together, assaulted the deceased Ramji resulting in three injuries on him and they ran away. Even though the axe is not recovered, the evidence of P.W. 2 is sufficient to bring the case under Section 302 r/w Section 34 of the Indian Penal Code.) The injuries on the person of the deceased are proved by Dr. Dewandra P.W. 7. The injuries are as follows :-

(1) Injury over left side of face incised wound 10 x 4 x 3 cms.

(2) Incised wound below the above injuries, 12 x 4 x 5 cms. mandible fracture, styloid bone fracture, mastoid bone fracture, and temporal bone fracture.

(3) Incised wound over scalp behind the left ear. 11 x 1 x 5 cms. fracture of skull occipital bone.

The injuries were sufficient in the ordinary course of nature to cause death.

9. According to him, there was skull fracture occipital bone left side, fracture temporal bone alongwith styloid process and base of skull left side which shows that blows were given with force with sharp cutting weapons on the head region. According to Doctor the cause of death was head injury. The deceased died within an hour of the assault. According to him the injuries were possible by jacksaw. Axe was not shown to him as there was no recovery of axe.

10. The evidence of the mother P.W. 2 get corroboration not only from the medical evidence on record but also from the testimony of P.W. 3, who has stated that the appellants were not looking after their mother and deceased Ramji was saying to them to stop illegal business of liquor. He has stated that on the date of incident there was Bhajan programme and he had gone there. Bhajan was going on, but he came out to pass urine and heard "Melore Bapa" from the house of Ramji and also heard cry of Bhurkabai. She was saying "Dhawa Dhawa". At that time both the appellants fled away from the house of Ramji. He saw them in the moon light. He confirmed during the cross-examination that he saw the accused while running and that Bhajan was in loud voice. It is pertinent to note that the time of assault, which was chosen was such that in the neighbourhood Bhajan was loudly going on so that if any hue and cry was raised, nobody would be able to hear but unfortunately for the appellants Harishchandra P.W. 3 had come out from the Bhajan for passing urine and saw that appellants were running away from the house of Ramji.

11. In the set of facts, it is not possible to disbelieve the testimony of P.W. 2 Bhurkabai, as submitted by the learned Advocate for appellant. The ruling of the Division Bench of the Bombay High Court upon which, reliance was placed by the learned Advocate for the appellant Jivan does not help the case of the appellant. In para 9 of the said ruling, it is pointed out that normally grandmother is not expected to falsely implicate her grandson. The relations of grandmother with her son and grandson were strained and they were not providing her maintenance. In that case on close scrutiny of her evidence it was found that the mother had falsely implicated her son and grandson and in support of the said conclusion various reasons have been given. In the case before us, we do not find any such reasons to discard the evidence of P.W. 2 who has stood in the cross-examination and the same is also corroborated by P.W. 3 Harishchandra as well as medical evidence on record besides the finding of human blood on the pant of appellant Jivan and blood on the jacksaw which was human blood. The presence of human blood is incriminating circumstances against the appellants and can be considered against them in the light of other evidence on record. The Apex Court in Keshau Lal v. State of M.P. 2002 SCC (Cri.) 641 has laid down that non-ascertainability of blood group cannot be made a basis to discard the evidence of witnesses which otherwise inspires confidence.

12. The learned Advocate for the appellant has argued before us that F.I.R. should be read into evidence, in the light of the fact that there was no mention of name of appellant Jivan in the F.I.R. nor in the column 6 of the printed F.I.R. Ex. 34. It is well settled that F.I.R. is not a substantiative piece of evidence. It can only be used either to contradict or corroborate its maker when he appears in the Court as witness. The F.I.R. can only discredit the testimony of its makers. This proposition is laid down by the Apex Court in Nisar Ali v. State of Uttar Pradesh ; Dharma Ram Bhagare v. State of Maharashtra and Kishan Chand Mangal v. State of Rajasthan . In Madhusudan Singh and Anr. v. State of Bihar the Apex Court has dealt with a case where certain allegations contained in the F.I.R. were considered by the High Court in coming to the conclusion that the accused was responsible for misappropriation. The said allegations were not proved at the trial in this case. The Apex Court held that F.I.R. is not a substantiative piece of evidence. It can be used either to contradict or corroborate the maker thereof in the manner provided in the Evidence Act. The Apex Court has pointed out that nothing has been brought to its notice from the record from which it may be possible to hold that the allegations made in the F.I.R. regarding the accused were at all substantiated at trial by oral evidence. It was, therefore, held that the allegations contained in the F.I.R. have thus, not been proved at the trial.

13. In view of the above position, we do not find any merit in the submission of learned Advocate for the appellants. Besides this, the attention of P.W. 2 was not drawn to the omission in the F.I.R. to which the learned Advocate for the appellant pointed out nor she was confronted with the same. In the absence of this any portion of the F.I.R. cannot be read as substantive evidence.

14. The testimony of the P.W. 2 has been accepted by the Trial Court, who had the benefit of observing the demeanor of the witness and we have no reason to take different view of the matter.

15. In the light of above discussion and evidence on record, we do not find any merit in the appeals except for sentence in default of payment of fine of Rs. 500/-. The Trial Court has awarded one year R. I. in default of payment of fine, which is highly excessive and it calls for interference in the punishment in default of payment of fine of Rs. 500/-. The appellant shall undergo simple imprisonment for 15 days in default of payment of fine. Except for this modification, the appeals are dismissed.