Rambhau Maroti Atapalkar And Ors. vs State Of Maharashtra
2003 Latest Caselaw 591 Bom

JUDGMENT

R.K. Batta, J.

1. The appellants were tried for murder of deceased Sanjay under section 302 r/w 34 of the Indian Penal Code. Prosecution had, in all, examined seven witnesses. The trial Court, after accepting prosecution evidence, held all the appellants guilty for the murder of deceased Sanjay under section 302 r/w 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay fine of Rs. 1,000/- i/d to suffer further rigorous imprisonment for two months each. The accused-appellants were held entitled for the benefit under section 428 of the Code of Criminal Procedure. The appellants challenged their conviction and sentence in this appeal.

2. Prosecution case is that the appellants assaulted the deceased with the different weapons. Appellant Rambhau is alleged to have assaulted the deceased with an axe; accused Sudhakar is alleged to have assaulted the deceased with a knife and accused Laxman is said to have assaulted the deceased with a sickle. As a result of the assault, the deceased received several injuries and succumbed to the said injuries on the third day of the incident.

3. In support of the prosecution case, prosecution has examined eye-witness Kondiram (P.W. 2) who is said to have witnessed the assault and who informed the mother of deceased Sanjay, who came to the spot and saw the appellants there with the weapons and lodged report with the police. The police recovered the axe at the instance of accused Rambhau and sickle from accused Laxman. The pancha of recovery panchanama Namdeo (P.W. 5) has also been examined by prosecution. The other evidence consists of medical evidence and the evidence of panchas and the Investigating Officer.

4. Mr. M.R. Daga, the learned Advocate appearing on behalf of the appellants urged before us that the testimony of P.W. 1 Mulabai that she saw the appellants' assaulting the deceased cannot be believed since the alleged assault was already over by the time she is said to have reached the spot and that there is difference in mentioning of the weapons in the deposition of this witness Mulabai (P.W. 1) vis a vis F.I.R. and that there is no mention of this witness having seen the assault in the F.I.R. In respect of the eye-witness Kondiram (P.W. 2), it is alleged that this witness has stated that accused Sudhakar had inflicted blows of knife on stomach; that there were no corresponding injuries on the stomach of the deceased and in view of this deposition of Kondiram (P.W. 2), accused Sudhakar is entitled to acquittal. It is further contended by the learned Advocate for the appellants that, according to the medical evidence, only injury No. 1 was fatal and taking into consideration that the deceased had died after three days of the incident, common intention to kill cannot be attributed to the appellants and that, at any rate, if the appellants are found guilty, the offence would fall under section 304-II of the Indian Penal Code. It is also urged that only one solitary blow on the head proved to be fatal for which common intention cannot be attributed to accused Laxman and accused Sudhakar, who, according to the prosecution case, had inflicted injuries, which are otherwise simple in nature.

5. Relying upon three judgments of the Apex Court, the learned Advocate for the appellants has urged before us that accused Sudhakar is entitled to acquittal and alternatively, all the appellants would be liable only for culpable homicide not amounting to murder under section 304-II of the Indian Penal Code. The rulings upon which reliance is placed are:

1. Kedar Prasad and others v. State of Madhya Pradesh, 1993 S.C.C.(Cri.) 287.

2. Suresh Sitaram Surve v. State of Maharashtra, 2003 Bom.C.R.(Cri.) (S.C.)1206 : 2003(1) Crimes 156(S.C.).

3. Ghapoo Yadav and others v. State of M.P., 2003(2) Crimes 172(S.C.)

6. On the other hand, the learned A.P.P. has urged before us that the evidence of P.W. 1 has to be believed insofar as she reached the spot after the incident, saw the appellants with the weapons there and also to the extent that the deceased had made oral dying declaration to her informing her that all the three appellants had assaulted him. According to the learned A.P.P., the evidence of Kondiram (P.W. 2) does not suffer from any infirmity and that though this witness tried to make improvement in relation to assault on the stomach of deceased, yet this was not the prosecution case and prosecution never alleged that there was an assault by Sudhakar on the stomach of deceased, though the prosecution case is that accused Sudhakar had assaulted the deceased with knife. According to him, the evidence of Kondiram (P.W. 2) has stood the test of cross-examination and has been fully corroborated by the medical evidence on record and as such, there is no reason whatsoever to discard the testimony of Kondiram (P.W. 2). The learned A.P.P. has further pointed out that the axe used in the crime was recovered by the police at the instance of accused Rambhau and the sickle used by accused Laxman was also recovered at his instance under section 27 of the Indian Evidence Act. He further points out that on all the weapons, which were used in the crime, blood of 'A' group was found which is the blood group of the deceased, whereas blood group of the accused Rambhau and accused Sudhakar is 'B' and the blood group of accused Laxman was found to be inconclusive. It is also pointed out by the learned A.P.P. that the full shirts of accused Laxman and accused Sudhakar were found to be stained with blood of 'A' group, dhoti of accused Rambhau was also stained with blood of 'A' group. According to the learned A.P.P., prosecution has proved that the appellants are responsible for the murder of deceased Sanjay and that they have been rightly convicted by the trial Court. On the question of applicability of section 34 of the Indian Penal Code, as also, solitary blow, he has placed reliance on a number of judgments of the Apex Court which are :

1. Mohd. Hussain Farah v. Union of India and another, .

2. Mahesh Balmiki @ Munna v. State of M.P., 2001 S.C.C. 319.

3. State of U.P. v. Jhinkoo Nai, 2001 Cri.L.J. 3965.

4. Hukum Chand v. State of Haryana, 2003 Cri.L.J. 57.

5. Lallan Rai v. State of Bihar, 2003 Cri.L.J. 465.

6. Major Singh v. State of Punjab, 2003 Cri.L.J. 473.

He further contends that the appeal be dismissed.

7. Prosecution case mainly rests upon the eye-witness account of Kondiram (P.W. 2), medical evidence, oral dying declaration made by the deceased to her mother Mulabai (P.W. 1) who reached the spot and saw the appellants with weapons, as also, recovery of weapons at the instance of the accused, as also, their clothes and the blood stains of 'A' blood group on all the three weapons used in the crime, as also, on the clothes of the accused-appellants.

8. Kondiram (P.W. 2) has stated that there was some altercation between Sanjay and accused Laxman when accused Rambhau came from his house with the axe and accused Sudhakar came there with the knife. Deceased Sanjay was running and accused Rambhau chased him. At this stage, accused Laxman brought sickle from his house. Accused Rambhau inflicted a blow of axe on the head of deceased Sanjay and Sanjay fell on earth, after which accused Sudhakar inflicted blows of knife on the stomach of Sanjay and accused Laxman came there and inflicted sickle blow on the neck of Sanjay. This witness rushed to the mother of Sanjay at her house and informed all the incident and she came along with him to the spot. He further stated that the villagers came to the rescue of deceased Sanjay. Accused threatened them with dire consequences. This witness was cross-examined, but nothing material could be elicited during the course of his cross-examination nor his testimony relating to the assault by any of the accused on the deceased could be shakened. Except for the improvement made by this witness relating to the assault by Sudhakar on stomach of deceased, the evidence of this witness has proved the assault by the appellants on the deceased which is also proved through the medical evidence as well. It was never the prosecution case that accused Sudhakar had inflicted knife blows on the stomach of the deceased; but the prosecution case was that accused Sudhakar had inflicted knife blows on the deceased. The fact of assault in the stomach region of deceased was, thus, an improvement made by this witness which has to be discarded.

9. Dr. Avinash Thote (P.W. 6), who conducted post-mortem on the dead body of the deceased, found several injuries on the person of deceased which are as under :

1. On head incised wound on left occipital region size 4" x 3" x 1" bone deep, fracture of left occipital bone brain matter was protudes the wound.

2. Incised wound on left temporal region oblique 1" x 1/4" muscle deep.

3. Incised wound on just back to angle of mandible oblique 2 1/2" 1/2" muscle deep.

4. Incised wound on right side in centre of neck transfers in position 1 1/2" x 1/4" x muscle deep.

5. Incised wound on right occipital obliquely 3 1/2" x 1/2" x bone deep.

6. Incised wound on right occipital transverse size 3" x 1/2" bond deep. Multiple abrasions on back left side varying in size and shape.

7. Right hand : multiple incised wound and dorsium of hand varying in size and shape. Elbow incised wound in posterior side 3" x 1/4".

Left hand : Incised wound on dorsum of left hand oblique in direction size 6" x 1/4" x muscle deep.

Left Iliac fossa - Incised wound oblique in position 3/4" x 1/4" x muscle deep.

Left arm - Incised wound on posterior lateral surface of arm in mid position oblique 7" x 1/2" bone deep.

Incised wound paralled to above injury 5" x 1/2" muscle deep. Two linear abrasions present 5" x 6".

All those wounds are stitched.

On opening the dead body, I had seen left occipital bone 4" nape of neck. It was perforating injury, brain matter was protruding out.

Injury No. 1 was corresponding to internal one. The injuries were anti mortem.

According to him, cause of death was due to Coma due to infracranial haemorrhage caused by injury No. 1. He further opined that the injuries were sufficient in the ordinary course of nature to cause death. The weapons were sent to him for opinion and he examined the weapons and found that the injuries were possible by all those weapons and he identified the said weapons in the Court. In the course of cross-examination, he stated that injury Nos. 2 and 3 were not grievous; if injury No. 4 would had been little deep, then it may have been fatal; injury Nos. 5 and 6 were not sufficient to cause death and that injury No. 1 was possible if head was struck on sharp edged stone. It may be pointed out here that there is no foundation laid by the defence in respect of injury No. 1 having been caused due to fall on the sharp edged stone and therefore, mere possibility of the injury having been caused due to stricking of the head against sharp edged stone cannot help the defence case at all in the absence of any foundation to that effect. Dr. Avinash (P.W. 6) has categorically stated that death was due to Coma due to infracranial haemorrhage caused by injury No. 1 which was sufficient in the ordinary course of nature to cause death. This blow on the head is said to have been given by the accused Rambhau. We shall discuss the question about applicability of section 34 of the Indian Penal Code in respect of the accused Laxman and accused Sudhakar at a little later stage after discussing the other evidence on record.

10. Though it may not be possible to believe Mulabai (P.W. 1) on the question of her having seen accused assaulting the deceased, yet her testimony can be accepted to the effect that when she reached the spot after Kondiram (P.W. 2) informed her, she saw all the accused persons on the spot with weapons. It is pertinent to note that in her police statement, as also, F.I.R. there is no reference to her seeing assault. According to her, accused Rambhau was armed with axe, accused Sudhakar was armed with knife and accused Laxman was armed with sickle. There is also evidence to this effect that the deceased made oral dying declaration to his mother Mulabai (P.W. 1) that all the accused had severely beaten him. Thus, the evidence of Mulabai (P.W. 1) can be accepted without any difficulty to the aforesaid extent.

11. In addition to the above evidence, there is evidence of recovery of weapons and in this respect, prosecution has examined Namdeo (P.W. 5). He has stated that accused Rambhau made statement to the police that he has hidden axe in the house and he is ready to produce the same. His statement was reduced into writing. Thereafter, the police party along with the accused Rambhau and the panchas proceeded to the house of Rambhau and accused Rambhau took out the axe which was kept beneath cupboard and he handed over the same to the police. He has further stated that the accused Laxman made statement to the police that he has concealed sickle at the place of his father in kitchen and he is ready to hand over the same. His statement was reduced into writing. Thereafter, the police party along with accused Laxman and panchas proceeded to his house and accused Laxman went inside the house, took out sickle and handed over the same to the police. He has also stated that the clothes of accused Laxman and accused Sudhakar were also seized. The evidence of this witness could not be shaken during the cross-examination. All these weapons namely axe and sickle were found stained with blood of 'A' group, which is the blood group of deceased. On the clothes of the accused also blood stains were found. The report of the Chemical Analyser shows that the full open shirt (Exh. 7) of Sudhakar, full open shirt (Exh. 9) of Laxman and dhoti (Exh. 5) of Rambhau had blood stains of 'A' group.

12. In the light of above evidence, it is crystal clear that involvement of all the accused in the assault which led to the death of deceased Sanjay has been duly established by the cogent, reliable and trustworthy evidence.

13. On the question of common intention, the evidence of Kondiram (P.W. 2) establishes beyond any iota of doubt that the appellants had intention to kill the deceased. Initially, some altercation took place between Sanjay and accused Laxman upon which accused Rambhau came from his house with the axe and accused Sudhakar came with knife. Subsequently, accused Laxman went to his house and also brought sickle and thereafter, all the accused assaulted the deceased with the said weapons. Accused Rambhau inflicted axe blow on the head and after Sanjay fell on the ground. Accused Sudhakar inflicted blows of knife and accused Laxman also inflicted sickle blow on the neck of Sanjay. The Medical Officer Dr. Avinash (P.W. 6) found corresponding injuries on the person of the deceased. The intention to kill is clear and the fact that the deceased died after three days cannot, in the facts and circumstances of the case, negate the intention to kill. Thus, prosecution has been able to establish that the accused entertained common intention to kill the deceased. The rulings upon which reliance has been placed by the learned Advocate for the accused are not applicable to the facts and circumstances of the case. The facts in the said cases are different. Said cases have been decided on their own facts. In Kedar Prasad and others case (supra), the appellant No. 1 had given stick blow on the head and as such, his conviction under section 304-I of the Indian Penal Code had been confirmed. The other appellants had given blows on the knee and hands which were not vital parts of body. In Suresh Sitaram Surve's case (supra), the eyewitnesses' account had established only one assault by the appellant in the stomach of the deceased which was fatal, as a result of which the conviction was altered from section 302 of the Indian Penal Code to 304-I of the Indian Penal Code. In Ghapoo Yadav and others case (supra), the injuries were sustained in the course of sudden quarrel which took place without premeditation and without any cruel intent or the accused having taken any undue advantage on account of which it was held that the Exception 4 to section 300 of the Indian Penal Code was attracted and the offence was altered from 302 of the Indian Penal Code to 304-I of the Indian Penal Code.

14. The facts in the case before us are totally different. All the three appellants had come with dangerous weapons and had assaulted the deceased. The first blow was delivered by Rambhau on the head as the result of which deceased fell and even after the deceased was fallen and he was left defence less, he was assaulted by means of knife and sickle by other co-accused.

15. The learned A.P.P. has relied upon K. Mahesh Balmiki @ Munna's case (supra) in order to point out that there is no principle that in all cases of single blow section 302 of the Indian Penal Code is not attracted. Single blow in some cases may entail conviction under section 302 of the Indian Penal Code, in some cases under section 304 of the Indian Penal Code and in some other cases under section 326 of the Indian Penal Code. The question with regard to the nature of offence has to be determined on the facts and circumstances of each case, the nature of injury whether it is vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors required to determine intention and knowledge of the offender and the offence committed by him. The ruling of the Apex Court in Mahesh Balmiki @ Munna's case also deals with the question of single blow. On the question of common intention, the learned A.P.P. has relied upon State of U.P. v. Jhinkoo Nai (supra). It is pertinent to note that in this ruling the Apex Court has quoted with approval the observation made by the Apex Court in earlier judgment in H.P. Thakore v. State of Gujarat, and has particularly laid emphasis on the following observations :

"Guilt goes with community of intent coupled with participatory, presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code."

The other two rulings upon which reliance has been placed by the learned A.P.P. also relate to the common intention and single blow. It is not necessary further to refer to the details of the said cases.

16. In our view, the charges under section 302 r/w 34 of the Indian Penal Code as against the appellants has been duly established by the prosecution evidence on record and we do not find any merit in the submission advanced by the learned Advocate for the appellant on merits nor that there is any case made out for scaling down the offence from section 302 of the Indian Penal Code to section 304-I or II of the Indian Penal Code. In the result, the appeal is dismissed.