The State Of Maharashtra vs Devappa Sidappa Kambale @ Muniv. ...
2004 Latest Caselaw 314 Bom

JUDGMENT

R.S. Mohite, J.

1. Criminal Appeal No. 520 of 1987 is filed by the State, seeking to quash and set aside the Judgment and order passed by the Sessions Judge, Kolhapur on 22.1.1987 in Sessions Case No. 4 of 1986. The Criminal Revision Application No. 168 of 1987 has been preferred by the original complainant Yashwant Sidgonda Patil against the same Judgment and order. By the impugned Judgment and order, the Sessions Judge acquitted the accused of all the charges leveled against them.

2. The brief facts of the prosecution case as appear from record are as under:-

(a) That the accused are residents of Gadhinglaj. The family of the complainants also are from the same town. Accused No. 1 Devappa is the father of the accused No. 2 Maruti and accused No. 3 Ramesh. Accused No. 4 Bhairu and accused No. 5 Datta are sons of the sister of accused No. 1 Devappa. Accused No. 6, 7, 8 and 9 are close relatives of accused No. 1 Devappa.

(b) About 17 to 18 years prior to the incident, father of PW 2 Yashwant had purchased a field from accused No. 1 Devappa. The said field bore No. 783/2 and was known as "Aarbigi". A dispute arose regarding the said transaction. Accused No. 1 Devappa filed a Suit for declaration that the sale deed in respect of the said sale was illegal. That suit was filed against PW 2 Yashwant. The said civil proceeding was pending between the accused No. 1 and Yashwant. The said civil proceeding was pending between the accused No. 1 and Yashwant. The family of the complainant also filed chapter cases against some of the accused. They had also perused their own civil litigation and an injunction suit filed by the family of the complainant's was decided in their favour. To summarise, there was bad blood and enmity between the family of the accused and the complainant.

(c) On 17.9.1985, PW 2 Yashwant, deceased Suresh, their mother Sonabai, the sisters of PW 1 and 40 to 50 other women went to the disputed filed "Aarbigi" and were doing the work of digging groundnuts. This work was done from 9 am. till the evening on that day. The 40 to 50 women were given their shares in the nature of groundnuts and thereafter, the family of the complainants returned to their home. After they took their meals at about 9 pm., the sister of PW 1, by name Dundavva said that the family members should go to the field and bring back the gunny bag full of groundnuts which had been inadvertently left behind in the field. They took a torch and a towel with them and returned to the field. They were searching for the said gunny bag in the field, but they could not immediately find it. At that time, they saw that the accused No. 1 Devappa, accused No. 2 Maruti and accused No. 3 Ramesh Kamble were present in the field. They were 7 to 8 other persons, including the other accused. The persons present there rushed towards the family of the complainant and started assaulting them. The accused persons were armed with weapons. Accused No. 2 Maruti assaulted the deceased Suresh with a knife on his stomach and head. Accused No. 3 assaulted PW 2 Yashwant on his shoulder and head with a knife. Accused No. 1 Devappa assaulted Yashwant by a knife. Accused No. 3 assaulted Dundavva on her left waist with an axe. Accused No. 2 Maruti assaulted PW 4 Kallavva on her head with an axe. Accused No. 4 assaulted PW 4 Kallavva on her left arm with a scythe. According to the prosecution, the entire incident was witnessed by PW 2 Yashwant, PW 3 Rukmini, PW 4 Kallavva and PW 5 Sonabai. Of these, PW 2, 3 and 4 are injured eye witnesses. PW 5 Sonabai was the mother, who had witnessed the entire incident from a little distance. The deceased Suresh died instantaneously at the spot, where he was stabbed.

(d) The entire incident took place at about 9.30 in the night. PW 2 immediately went to the Police Station and lodged a report. FIR was written as per his say and the same is at exhibit 27. PW 2 Yashwant was sent to the Z.P. dispensary at Gadhinglaj. Later on he pointed out the scene of the offence to the Police. The Police commenced investigation. PW 15 PSI Shamsunder went to the scene of the offence and he found that some head Constable and the Police Patil of Gadhinglaj were present there. He gave Police protection to the family members of the complainant Yashwant. On 18.9.1985, he recorded the statements of the 3 eye witnesses Kallavva, Dundavva and Sonabai. The accused No. 1 was arrested on the same day. Thereafter investigation was continued. On 4.10.1985, accused No. 3 Ramesh showed willingness to disclose information and after recording memorandum at his behest, stick kept hidden in a bunch of bamboo was recovered and seized under the panchanama at exhibit 44. On the same day, accused No. 2 Maruti Kamble showed his willingness to point out the scythe, which was kept in a cattle shed. Accordingly, the said scythe was discovered and seized at the behest of the Police under panchanama at exhibit 42. On 7.10.1985 accused No. 2 Ramesh again expressed his desire to give more information and after drawing a memorandum, at his behest, a stick was discovered from the backyard of one Mr. Bhima Asode. On 22.10.1985, accused No. 7 was arrested. On 21.11.1985, muddemal articles seized in the investigation were sent to the Chemical Analyser and after completion of the investigation the charge came to be filed.

3. On the accused being committed to the Court or Sessions Kolhapur, on 27.10.1986, the Sessions Judge, Kolhapur framed the charge. The accused were charged for offences under Section 447, 147, 148, 149 and Section 302 read with Section 34 of IPC and Section 307 read with Section 34 IPC. In the alternative accused Nos. 1 to 5 were also charged for offences under Section 307 simpliciter of the IPC and alternatively under Section 324 of IPC. There was a separate charge against accused No. 2 under Section 302 of the Penal Code namely for causing the death of Suresh.

4. After the framing of the charge, at the trial, the prosecution examined 15 witnesses including 4 eye witnesses, panch witness, medical witness and the Police witness. The defence was of Local denial. After recording of the statements of the accused, the Sessions Judge passed the impugned order, acquitting all the accused and this is how the present Appeal and Revision have come to be filed.

5. On behalf of the State and the Applicant in the Revision, it was urged that the evidence of the injured eye witnesses had been erroneously discarded for reasons, which were improper and untenable. It was contended that the FIR has been lodged in less than two hours after the incident and in the said FIR, the names of the accused Nos. 1, 2 and 3 had been immediately disclosed as being accused persons, who had committed overt acts. The fact that accused No. 2 had stabbed the deceased Suresh Naik on his stomach was subsequently mentioned in the FIR. The fact that the family of the complainant had gone to the field in question with a torch was also disclosed in the FIR. It was contended that the versions given by the three injured eye witnesses insofar as the of overt acts attributable to accused No. 2 Maruti against the deceased Suresh were interse consistent. It was stated that not only this, but the medical evidence in the case fully corroborated the ocular evidence of the eye witnesses. That PW5 Sonabai was also an eye witness, though she had witnessed the incident from a greater distance. It was further contended that the evidence of the 3 injured eye witnesses attributed overt acts to accused No. 1, accused No. 3, accused No. 4 and accused No. 5 and even this evidence was corroborated by the medical evidence pertaining to 3 injured eye witness. The learned Public Prosecutor fairly conceded that insofar as the evidence pertaining to discovery of the alleged weapons used in the incident was concerned, since no blood was found on the weapon seized, the same may not be of much assistance to the prosecution.

6. Similarly, it was fairly conceded that though blood of the blood group of the deceased was found on the clothes of accused No. 1, the same may not carry the prosecution too far because accused No. 1 was shown to have bleeding injuries and his blood group was the same as that of the deceased. It was, however, strenuously argued that once the eye witnesses were found believable and were consistent inter-se, as well as corroborated by the medical evidence, the other supportive evidence was not required to be pressed for the prosecution, to secure a conviction.

7. On behalf of the accused, it was argued that it was dangerous to accept an identification on the basis of torch light. It was contended that the evidence relating to the existence of a torch had discrepancies. That PW 2 Yashwant had stated that he had dropped the torch on the field. The Police Patil, who was examined had stated in his evidence that he and some Policeman had kept a night vigil on the spot. That, however, the torch was not found in the morning. It was contended that the torch, if any, in the hands of the accused, would be flashed on the faces of the victim and this would hinder rather than help in identification on such light being thrown. It was contended that though the FIR was shown to be lodged immediately on the date of the incident i.e. 17.9.1985, yet the report in respect of the crime was sent to the concerned Magistrate after a delay of 3 days i.e. on 20.9.1985. It was suggested that this led to an infirmity in the prosecution case as there could be suspicion of the FIR being back dated. it was further vehemently contended that accused No. 1 Devappa had suffered serious injuries. This injury was fairly proved by the prosecution through the evidence of PW 12 Dr. Shivkumar Kolhapure, as well as the evidence of Dr. Rao, PW 11. The contention, was that the injuries being serious, ought to have been explained by the prosecution and on the prosecution failure to explain such serious injuries, a doubt would arise as to the veracity of the version by the prosecution eye witness and about the truthfulness of the prosecution case. It was contended that the non explanation of the injuries would give rise to a doubt for the manner in which the incident commenced.

8. We have heard all the parties at length. It was brought to our notice at the inception by the learned counsel appearing for the Respondent accused that two of his clients, i.e. accused No. 1 Devappa and accused No. 4 Bhairu had died during pendency of this Appeal. Accused No. 4 Bhairu expired on 9.3.1996 and accused No. 1 Devappa had expired on 5.9.1997. Death Certificates in this regard were shown to us. The Appeal, would therefore stand abated against the accused Nos. 1 and 4.

9. We propose to first deal with the eye witness evidence. The first eye witness is PW 2 Yashwant Sidgonda Patil. About the actual assault, in his examination in chief, he stated that accused Nos. 1, 2 and 3, i.e. Devappa, Maruti and Ramesh were assaulting the complainants group. Out of these, accused No. 1 and accused No. 3 i.e. Devappa and Ramesh assaulted him. Accused No. 2 Maruti assaulted the deceased Suresh with a knife. He made a general allegation that the other persons were assaulting his sisters and others. He stated that the accused Nos. 2 and 3 were having two or three torches and that he witnessed the incident in the light of the torch, which were in possession of the accused, as well as in his possession. He further stated that Suresh had been assaulted with a knife in the stomach. That after assaulting, the accused ran away. In his cross-examination, though some attempt was made to shake the evidence pertaining to the assault by Maruti on the deceased Suresh, nothing perverse could be elicited by the defence in his favour. It was brought out in the cross examination that when the assailants were assaulting this witness, his torch had fallen down but the witness later on stated in the same cross-examination that he picked up his torch. In his cross-examination, the witness further alleged an assault on him by Maruti by axe. This version was in addition to what was attributed to Maruti in his examination in chief.

10. Version of this witness is corroborative and completely supported by the medical evidence. The Post mortem clearly indicates the presence of an incised wound on the abdomen of Suresh. There are also incised wounds on the right shoulder and head of PW 2 Yashwant, which could be caused by an axe, which was attributed to the act of accused No. 3. Though there was no incised wound on the head, yet there was a bleeding wound found. There is however some doubt whether this could be caused by a sharp cut weapon. Doctor in his evidence has held that the same could be caused by blunt and hard object. As far as the assault by knife on this witness by accused No. 1 is concerned, there appears to be no other incised wound. The net result of the analysis of the evidence of this witness that is evidence insofar as the stabbing of the deceased Suresh by accused No. 2 on his stomach and head, stands corroborated, both by the FIR which was immediately filed, as well as by the medical evidence on the record, there is no omission or other infirmity in this regard brought out in the cross examination of this witness.

11. The second witness is PW 3 Dundavva. She has deposed to accused No. 2 Maruti, stabbing the deceased in his stomach by knife. She has also deposed to accused No. 2 stabbing her on the head with a knife. According to her the accused No. 3 also assaulted her on left side of her waist by axe. All these statements are corroborated by medical evidence insofar as Maruti had an incised wound on his stomach and this witness PW 3 Dundavaa had an incised wound on her waist and her head.

12. PW 4 Kallavva, the another sister of Yashwant was the other injured eye witness and she has deposed to accused No. 2 assaulting the deceased with a knife. She deposed that accused No. 5 assaulted her on the head with axe and accused No. 4 injured her with scythe on her left arm. All these overt acts mentioned by her find corroboration in the medical evidence. An incised wound is found on the head of this witness and the incise would is also found on her left arm.

13. PW 5 Sonabai is the mother of the injured eye witness. She however, had seen the incident from a greater distance and her evidence is of a general nature, wherein she has deposed about accused No. 1 to 5, assaulting her family members with weapons in their hands.

14. On taking an overall view of the eye witnesses account, we find that the presence of the injured eye witnesses at the site of the incidence can not be denied as they have suffered serious injuries. PW 2 Yashwant has immediately disclosed all important facts in his FIR, which was lodged within two hours of the incident. The names of accused Nos. 1, 2 and 3 and the overt acts, stated to have been committed by them find place in the FIR. PW 3 and PW 4 support the version of Yashwant and insofar as the assault on the deceased Suresh by Maruti, we find that the evidence given by the 3 injured are witness is almost identical, consistent inter-se and totally corroborated by the medical evidence on record. The deposition of these witnesses insofar as the assault by Maruti on Suresh has not been shaken in the cross-examination and we see no reason as to why such evidence, consistent inter-se and corroborated by medical evidence should be discarded insofar as the assault on deceased Suresh by Maruti is concerned.

15. Insofar as the roles attributed by these witnesses to accused No. 1, accused No. 3, accused No. 4 and accused No. 5 are concerned, it was strenuously argued on behalf of the prosecution that their version should be accepted even as regards these accused and the acquittal of these accused should be set aside. It was pointed out that insofar as the accused Nos. 1, 3, 4 and 5 were concerned, the medical evidence was also corroborative. Our view on this say that the version given by these witnesses insofar as the other accused were concerned, was also a possible view but we can not lose sight of the fact that we are in Appeal against acquittal. There are one or two factors, which persuade us not to upset the acquittal of the other accused. One of them is that except regarding acts of Maruti, there is no support of the version given by any of the other eye witness. Each of these witnesses talks only about the injury caused to the deceased Suresh or to himself/herself. We also have in mind the fact that apart from PW 2 Yashwant, none of these witnesses had a torch and were, therefore, not in a position to direct light at their will. However, that would not prevent them from seeing whatever Yashwant would have seen in the beam of the torch held by him. We are also conscious of the fact that the torches said to have been held by the accused were firstly not seized by the prosecution. Secondly, regarding these torches, there is an omission in the evidence of PW 2 Yashwant as the carrying of torches by the accused has not been mentioned in the FIR. In the circumstances, we would give the benefit of doubt to the accused Nos. 3 and 5. (accused No. 1 and 4 being dead) insofar as the allegation of assault made by them on the witnesses is concerned.

16. We thus, find that the prosecution case against the accused No. 2 is established, as we find the evidence of the three injured eye witnesses is acceptable.

17. At this juncture, we must refer to the findings of the learned Sessions Judge for discarding the evidence of the eye witness. He firstly discredited the evidence of Sonabai on the ground that she could not have seen the assault because according to her she was standing near a stream and there were 4 to 5 intervening fields between the land Aarbigi and the said stream, on which crops of about 4 to 5 height was standing. While coming to this conclusion, he has relied upon the evidence or PW 1 Ismail Sayyad. This witness is the Circle Inspector and he visited the spot of the offence on 16.11.1986. The learned Sessions Judge lost sight of the fact that his visit to the spot of offence was more than one year and two months after the date of the incident. The evidence of this witness on the height of the crops, was therefore a completely irrelevant. We find that this approach to the evidence is completely erroneous and untenable. It may be noticed that in the FIR itself it is mentioned that PW 5 Sonabai had followed other members of the complainants family to the land where the incident took place and that after the incident she had also gone to lodge the complaint.

18. Insofar as the evidence of the other eye witnesses are concerned, we find that insofar as the assault by accused No. 2 Maruti on deceased Suresh is concerned, the same has been discarded on completely untenable grounds. There is some discussion that the dead body was found, outside the field in question. We are unable to understand this approach. When a family belonging to the complainant was assaulted by a group of assailants, armed with weapons, it was but natural they must have run helter skelter. Besides, there is evidence of the prosecution that the body of Suresh was carried away and was kept just outside. There is no mention made of this fact. In fact, in the entire judgment, there is no reference to the medical evidence at all.

19. The learned Sessions Judge has also found fault with the prosecution because the report relating to the incident was not sent to the Magistrate for a period of 3 days. In this regard, he has stated that the Court of Judicial Magistrate First Class is situated in Gadhinglaj itself and has come to the conclusion that the possibility of deliberately committing such delay with the intention to improve the prosecution case can not be ruled out. The learned Sessions Judge is not right in this regard. The law relating to the fact of the delayed submission of the report under Section 157 is well settled by several judgments of the Apex Court. We need make reference to only one i.e. in the case of State of U.P. v. Gokaran and Ors. , wherein the Apex Court, while dealing with the subject, observed as under:-

"13. .....but it is not as if every delay in sending such a delayed special report to the District Magistrate under Section 157 Cr.P.C. would necessarily lead to the inference that the F.I.R. has not been lodged at the time stated or has been ante-timed, or antedated or that the investigation is not fair and forthright."

In this Judgment, the Apex Court has laid down that the delay must cause prejudice to the Appellant. In the present case we find from the evidence of the investigation officer, he was busy during this period. No arguments were addressed to show how this delay, caused any prejudice to the accused.

20. It was also pointed by the defence that the serious injuries to accused No. 1 were not explained by the eye witnesses. In this regard, no doubt the injuries suffered by the accused No. 1 were serious in nature. It was noticed that he suffered six injuries. Injury No. 1 was a C.L.W. over the chest wall anteriorly and right side above 5" x 3" x 2" ribs were exposed, lung tissues seen. Three of the injuries were bleeding injuries. Accused No. 1 in his 313 statement was asked about the injuries having been found on him. He denied that he was medically examined. He also denied the injuries on himself. The defence in this case is not one of private defence. The manner in which the non-disclosure of injuries is to be considered, has been recently laid down by the Apex Court in case of James Martyn v. State of Kerala . In this regard, the Apex Court has laid down as under:-

"14. ...Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs injuries."

21. In the aforesaid case before the Apex Court, the plea of private defence had been raised by the accused as stated above. In the present case the defence sought to raise this defence. One of the main reasons as to why the giving of an explanation about a serious injury sustained by the accused at or about the time of the occurrence is relevant & important is the possibility of there existing a right of private defence. The other reason, of course, why such non-explanation is made diligence of general truthfulness of the version given by the witness & his reliability. It may be that in certain circumstances, this may create a doubt on the version given by the witness. However, in the present case, we find that the evidence given by the witness is probable, consistent creditworthy and is fully corroborated by the medical evidence and in the circumstances. This factor outweighs the non-explanation of the injuries suffered by accused No. 1.

22. The question would then arise as to whether any of the other accused persons can be convicted with the aid of Section 34 or Section 149 of the penal code as such charges were framed in the Session Trial. In our view it would not be safe to hold that the assembly of the accused persons had a common intention or a common object to murder Suresh. The evidence indicates that the family of the complainant decided to return back to the field after their night meals. It was specifically elicited in the cross examination that this decision was not communicated to anybody. It is therefore, not clear from the record as to how the accused persons could have been waiting for them at the field. The reason as to why various accused persons had come together is not very clear from the evidence. We are aware of the position that a common object or common intention can develop at the spot and can be inferred from the conduct of the various accused. Though it was urged on behalf of the prosecution that the common object of unlawful assembly or to do away with Suresh, we find that it is not borne out by the conduct of the other accused. It is the admitted position that none of the accused had stabbed or caused injury to the deceased Suresh. The acts alleged against by them by the witness resulted in simple injuries and it would be dangerous to hold that the common object or common intention of all the members of unlawful assembly was to eliminate Suresh, more so in Appeal against acquittal.

23. In the net result, the Appeal must be partly allowed. The impugned Judgment and Order passed by the Sessions Judge, Kolhapur in Sessions Case No. 4 of 1986 is partly set aside insofar as it acquits accused No. 2. The said acquittal of accused No. 2 is set aside and accused No. 2 is convicted for the offence punishable under Section 302 of the Indian Penal Code. We do not feel that this is a case where death penalty is required to be considered and therefore, there is no need to hear the accused No. 2 on the question of sentence. Accused No. 2, is therefore sentenced to suffer imprisonment for life. The acquittal of other accused are confirmed. Accused No. 2 will surrender his bail bonds forthwith.

24. In view of this Judgment and order, no separate order is required to be passed in the Revision Application. The Revision Application stands disposed off in view of this Judgment. Issue of Certified Copy is expedited.