Anandrao Bapuso Patil And Anr vs The State Of Maharashtra
2015 Latest Caselaw 576 Bom

                                                                 J 60 OF 2007.doc




                                                                              
    vks
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                      
                    CRIMINL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NO.60 OF 2007

          1. Anandrao Bapuso Patil                         ]




                                                     
              age: 50 years,                               ]
                                                           ]
          2. Vilas @ Balaso Bapuso Patil,                  ]
              age: 39 years,                               ]   ...  Appellants.



                                             
                                     ig                    ]      Ori. accused
              Both resident of Kavalapur                   ]
              Tal. Miraj, District: Sangli.                ]
                                                           ]
                                   
              Appellant No.2 at present in Sangli          ]
              Prison                                       ]   

                     V/s.
            
         



          The State of Maharashtra                         ]
          at the instance of                               ] ....  Respondent
          Sangli Rural Police Station, Dist. Sangli        ]





          Mr. S.. V. Kotwal I/by Mr. V.V. Purwant a/w Mr. Sachin Deokar,
          for the appellants.
          Mr. A.S. Shitole, APP for the Respondent-State.
          Mr. Kedar Patil, for the Legal heirs of the deceased.





            CORAM  :  SMT. V.K. THILRAMANI ACTING CJ &
                            DR. SHALINI PHANSALKAR-JOSHI, J.

CLOSED FOR ORDER ON : 17 th NOVEMBER, 2015.

NOVEMBER, 2015 PRONOUNCED ON : 27 th

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JUDGMENT. : [Per: Dr. Shalini Phansalkar-Joshi, J.]

1. This appeal is preferred by original accused Nos. 1 and

2 challenging the judgment and order dated 30 th December, 2006, in

Sessions Case No.23 of 2005, of Sessions Judge, Sangli, thereby

convicting both the appellants for the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code and

sentencing them to suffer imprisonment for life and to pay

compensation of Rs.1 lac each to the widow and the children of the

deceased; in default to suffer rigorous imprisonment for two years.

2. Brief facts of the appeal can be stated as follows :-

The appellants are the real brothers interse. The

appellant No.1 Anandrao at the relevant time was serving in Air

India and residing at Mumbai alongwith his family since last more

than 20 years. Appellant No.2 Balasaheb was agriculturist looking

after agricultural land belonging to the family situate at Kavalapur,

Taluka Miraj, District: Sangli. The agricultural land of deceased

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Bhanudas was adjacent to the land of appellants. The house of

deceased was also adjacent to the house of appellant No.2

Balasaheb. There were some boundary disputes between the

appellants and the deceased. Just a month prior to the incident,

appellant No.2 Balasaheb, while ploughing his land had uprooted

the boundary stones. On that count some altercation has taken place

between the deceased and the appellant No.2. The deceased has

refixed those boundary stones with the assistance of his cousin

brother P.W.10 Mahadeo. However, those stones were again

uprooted by the appellants and as a result, the relations between the

parties had become quite strained.

3. In this backdrop, the incident giving rise to this case,

took place on 25.7.2004. On that day in the morning, appellant No.1

Anandrao had come from Mumbai, as per his usual practice, for one

or two days. On that day at about 8.30 a.m. when the deceased was

returning from the field, some altercations and exchange of abuses

again took place between the deceased and the appellants. Hearing

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the altercation and noise of shouting and abuses, P.W.5 Lata Patil,

the sister-in-law of the deceased, rushed outside, alongwith

Suvarna, the wife of the deceased and they saw that the appellant

No.2 Balasaheb was assaulting the deceased with sickle in his hand.

The deceased was trying to avoid assault and has raised his left

hand to do so. However, he sustained injury on his left hand and he

was pushed on the ground by appellant No.1 Anandrao. Appellant

No.2 Balasaheb inflicted the blows of the sickle on the waist and

back of the deceased. Then appellant No.1 Anandrao took sickle

from the hands of appellant No.2 Balasaheb and assaulted the

deceased with the said sickle on his both the thighs. P.W.10

Mahadeo, whose house was just adjacent to the house of deceased,

rushed there to help the deceased. However, the appellants

threatened him not to intervene in the assault. Due to assault,

Bhanudas sustained injuries all over his body. Both the appellants

ran away from the spot; with appellant No.1 carrying sickle with

him. The persons residing nearby and passing on the road then

took injured Bhanudas in a tempo to the Civil Hospital at Sangli.

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There Doctor declared Bhanudas dead on admission.

4. P.W. 10 Mahadeo then went to Sangli Rural Police

Station and lodged complaint against the appellants. On his

complaint Exh.89, P.W.13 PI Shinde, registered C.R.No.81 of 2004

and took over investigation. He called two panchas and went to the

Civil Hospital. There after making inquest panchanama (Exh.45),

he sent the body for postmortem examination. Thereafter PI Shinde

went to the spot and drew scene of offence panchanama at Ex.49.

From the spot, he collected blood stained soil and simple soil. The

photographs of the scene of offence were also taken. On the very

day, P.W.13 PI Shinde recorded statements of six witnesses

including that of P.W.5 eye witness Lata Patil. Both the appellants

were arrested. Their blood stained clothes were seized under

panchnama. All the seized articles were referred to Chemical

Analyzer.

5. During the custodial interrogation, on 26.7.2004

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appellant No.2 Balasaheb gave disclosure statement which was

reduced to memorandum panchanama (Exh.94). In pursuance

thereto he guided the police and panchas to cattle shade of his house

and produced the sickle which also came to be seized under

panchanama (Exh.95). Dry blood stains were found on the sickle.

Hence it was also sent to Chemical Analyzer.

6. Further investigation was made for some days by PSI

Kulkarni, who has on 27.7.2004, recorded statement of another eye

witness P.W.7 Tanaji Patil. Meanwhile postmortem notes Exh. 82

were received disclosing the cause of the death as haemorrhagic

shock due to ruptured right lung with heamothorax with poly

trauma. After completion of due investigation and on the receipt of

Chemical Analyzer's report, chargesheet came to be filed against the

appellants in the court of Judicial Magistrate First Class, Miraj.

7. On committal of the case to the Sessions Court, the trial

Court framed charge against appellants vide Exh.24. The appellants

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pleaded not guilty and claimed trial, raising defence of false

implication, on account of strained relations.

8. In support of its case, the prosecution examined in all 13

witnesses; whereas the appellants also led the evidence of one

witness, by name, Prakash Patil, to prove that the incident has taken

place at 7.00 a.m. and not at 8.30 a.m., as alleged by the

prosecution.

9. On appreciation of the evidence led by the prosecution

and the defence, trial Court was pleased to hold guilt of both the

appellants to be proved beyond reasonable doubt for the offence

punishable under Section 302 read with Section 34 of the Indian

Penal Code and convicted and sentenced them as aforesaid.

10. This judgment of the trial Court is challenged in the

present appeal by learned counsel for the appellants Shri. S. V.

Kotwal, whereas supported by learned APP Shri. A.S. Shitole. In

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our considered opinion, before adverting to their rival submissions

it would be useful to refer to the evidence on record.

11. To prove homicidal death of deceased Bhanudas, the

prosecution has examined P.W.7 Dr. Gulab Sing Rajput, who was

attached to Civil Hospital, Sangli and has conducted postmortem

examination on the dead body. He noticed following injures, which

he has noted down in column No.17:-

Injury No.1 : Over back, scapular region - Incised penetrating

wound, extending from inner border of right scapula to left axillary fold. Horizontally oblique

22 cms x 8 cms x right thoraxic cavity deep medial site and laterally muscle deep with tapering and near left axillary fold. Rupture

portion of right tung seen. No fracture of bones on ribs. Bleeding present.

Injury No.2 Over right scapular region (upper half)- Incised wound, extending from inner border of right scapula to right upperarm (near shoulder).

Horizontal oblique with tapering ends. 13 cms x 2

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cms x muscle deep with bleeding.

Injury No.3 Right mid lumbar region- Incised wound 5 cms x

3 cms x muscle deep with bleeding.

Injury No.4 Right inguinal and hip joint region- Incised wound

extending from lower public region to lateral side of right thigh. Horizontal oblique 25 cms x 7 cms x bone deep. Muscle fibres, tendons, ligaments,

femoral vessel and other vessels cut through and

through. Cut wound and fracture neck femur and head of femur separated bleeding.

Injury No.5 Left mid thigh - Anteriorly. Incised wound, Horizontally oblique, 11 cms x 5 cms x muscle

deep. Muscle fibres cut through bleeding.

Injury No.6 Left forearm - lower 1/3 incised wound. Vertically oblique, 3 cms x 2 cms x muscle deep. Bleeding.

Injury No.7 Left thumb - proximal phalanx (plamer side)-

Incised wound. Oblique, 2 cms x 1 cms x muscle deep. Bleeding.

Injury No.8 Left little finger, proximal phalex (palmer side)-

incised wound 2 cms x 1 cms x muscle deep. Bleeding.

According to him, all these injuries were antemortem in

nature and the injury Nos 1 and 4 were sufficient independently to

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cause death in ordinary circumstances. He has further opined that

all 8 injuries can be possible due to assault of weapon like sickle.

Article "N" the sickle which was recovered at the instance of

appellant No.2 Balasaheb, was shown to him and he has stated that

the injuries found on the dead body are possible by the said sickle.

He has also found corresponding internal injuries which are noted in

column No.20 of postmortem notes Exh.82. In his opinion, the

cause of death was haemorrhagic shock due to ruptured right lung

with heamothorax with Poly trauma. Though this witness is cross

examined at length, nothing worthwhile is elicited in his cross

examination to disbelieve the fact that the death of deceased was

homicidal in nature and caused as a result of injuries which were

found to be fatal in the ordinary course of nature.

12. The prosecution case against appellants rests on the

evidence of three eye witnesses. First amongst them is P.W.5 Lata

Patil- the sister-in-law of the deceased. She was residing alongwith

her husband, her brother-in-law deceased Bhanudas, Suvarna, wife

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of the deceased and their children. Her evidence proves strained

relations between the deceased and the appellants on account of

boundary dispute. She has deposed that just 8 days prior to the

incident some altercation has taken place between the deceased and

the appellant No.2 Balasaheb, as appellant No.2 Balasaheb has

removed the boundary stones fixed by the deceased. Hence those

boundary stones were again refixed by the deceased and P.W.10

Mahadeo- the cousin of the deceased. On that count also the quarrel

had taken place between the deceased and the appellant No.2

Balasaheb. There is corresponding evidence to that effect of

P.W.10 Mahadeo, the cousin of the deceased.

13. As to the evidence relating to actual incident, P.W.5

Lata has deposed that while she was cooking in the house in the

morning time with her sister-in-law Suvarna, at about 8.30 a.m., she

heard noise of shouting and abuses, hence she herself and Suvarna

rushed out of the house. They saw that the appellants and the

deceased were abusing each other and in that altercation appellant

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No.2 Balasaheb assaulted the deceased with sickle in his hand. The

deceased raised his left hand to avoid the said attack. However,

deceased sustained injury on his left hand. P.W.1 Anandrao pushed

the deceased from backside, hence deceased fell on the corner of the

road after tumbling. Appellant No.2 Balasaheb again assaulted the

deceased with sickle on his waist and back. Appellant No.1

Anandrao then took the sickle from the hands of appellant No.2

Balasaheb and assaulted the deceased on his both the thighs with

said sickle. P.W.10 Mahadeo came forward to rescue the deceased

from the clutches of the appellants. However, both the appellants

threatened him not to do so. Hence Suvarna, the wife of the

deceased, fell on the body of the deceased to prevent further assault.

The appellants, therefore, ran away from the spot; appellant No.2

Balasaheb carrying sickle with him. Due to assault, deceased had

sustained several bleeding injuries on his body and he was

thereafter taken to the hospital where he was declared dead.

14. Except for some minor discrepancies, absolutely

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nothing worthwhile is elicited in her cross examination to disbelieve

her evidence. Her presence at the spot is also natural one as the

incident has taken place in front of her house and after hearing

commotion she has rushed there. Her statement is also recorded by

the police immediately on the same day.

15.

Her evidence stands fully supported and corroborated

from the evidence of P.W.10 Mahadeo. His house is situated

towards western side of the house of deceased with common wall in

between. According to his evidence, at the time of incident, he was

standing in the courtyard in front of his grocery shop. He heard

shouting of the appellants giving abuses to the deceased. Hence he

rushed to the house of deceased and saw that the deceased has

parked his bicycle and was heading towards the house. At that time,

the appellant No.2 Balasaheb gave him abuses in Marathi in filthy

language and then started assaulting the deceased with sickle in his

hand. The deceased tried to prevent the blow by raising his left

hand, but sustained injury to the same. Meanwhile appellant No.1

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Anandrao pushed the deceased on the ground, therefore, deceased

fell down. Then appellant No.2 Balasaheb again assaulted the

deceased with sickle, he gave four blows of the sickle on the waist

and back of the deceased. Then appellant No. 1 Anandrao took

sickle from the hands of appellant No.2 Balasaheb and assaulted

the deceased with the said sickle on his right and left thigh. By that

time, the wife of the deceased threw herself over the body of the

deceased to save him. He also rushed to save deceased, but the

appellant No.1 Anandrao threatened him with dire consequences. P.

W. 5 Lata and some witnesses were also present there. Thereafter

the appellants ran away from the spot the appellant No.1 carrying

sickle with him. When the deceased was taken to the hospital, he

was declared dead on admission. Thereafter he himself went to the

police station and lodged complaint Exh.89. He showed the spot of

incident to the police. Scene of offence was recorded in his

presence.

16. Absolutely no omission, contradiction or improvement

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and thus no discrepancy is elicited in his cross -examination. His

evidence has remained completely and totally unshattered on

record. Needless to say that, his presence on the spot, as he is

residing in just adjacent house, was natural one.

17. Lastly there is evidence of P.W.6 Tanaji Patil whose

house is also situated adjacent to the house of P.W.10 Mahadeo. At

the time of incident he was standing in front of house of one Shri.

Jagtap in Ganpati lane. On hearing shouts and abuses, he came to

the spot and saw that the deceased was assaulted with sickle by the

appellants. He has deposed that appellant No .2 Balasaheb was

assaulting the deceased with sickle. To avoid attack the deceased

raised his left hand. However, appellant No.1 Anandrao pushed

deceased from back side. Deceased fell down facing towards the

ground, then the appellant No.2 Balasaheb assaulted the deceased

with sickle on his back and waist. Thereafter the appellant No.1

Anandrao took sickle from the hands of Balasaheb. Meanwhile the

deceased struggled to get up but fell down again facing towards sky

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and then the appellant No.1 Anandrao assaulted the deceased on his

both the thighs with sickle. P.W.10 Mahadeo tried to intervene, but

it was of no use. Therefore, Suvarna fell on the body of the

deceased to save him from the attack. The appellants, however,

thereafter left the spot carrying sickle with them.

18.

His evidence is challenged only on the ground that his

statement is recorded on the third day of the incident though he was

very much present in the village. In our considered opinion, the

delay in recording of his statement is not such that it could prove

fatal to the prosecution case and secondly even if his evidence is

excluded from the consideration on that ground, there is evidence of

other two eye witnesses, referred and discussed above, whose

evidence has remained unshattered on record.

19. This ocular account of the incident is completely in tune

with the medical evidence, discussed above which proves injuries

on the waist and back of the deceased and also injuries on his right

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and left thigh caused by sharp edge weapon. Injury Nos 6, 7 and 8

to the left forearm, left thumb and left little finger corroborates the

evidence of eye witnesses that the deceased had tried to save

himself from the assault by raising his left hand.

20. This ocular and medical evidence is supported in the

case from the evidence relating to recovery of the weapon of

assault, the sickle, at the instance of appellant No.2 Balasaheb. P.W

13 PI Shinde has deposed that on the very night appellant No,.2

Balasaheb was arrested and during custodial interrogation, on the

next day, he gave disclosure statement, showing his readyness to

produce the sickle, concealed by him in the cattle shade of his

house. This statement was reduced to memorandum panchnama

(Exh.94) in presence of Panchas. Thereafter he led police and

panchas to the cattle shed and produced the blood stained sickle

Article "N" which came to be seized under panchnama (Exh.95).

21. The evidence on record proves that the blood stained

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clothes of the appellants which were seized at the time of his arrest

and the sickle, were sent to Chemical Analyzer. As per C.A. report

(Exh.96), they were found to be of the blood group "B" which is

blood group of the deceased.

22. Coming to the evidence of witness Prakash Patil

examined by the appellants, to prove that the incident has taken

place at 7.00 a.m. and not at 8.30 a.m. as alleged by prosecution. In

this respect reliance is also placed on the evidence of Investigating

Officer P.W.13 PI Shinde, who has admitted that there is some

overwriting as regards the timing of receipt of First Information in

the station diary entry Exh.97. In our considered opinion neither

evidence of defence witness nor overwriting in the station diary

entry relating to timing of incident and relating to giving first

information of the incident makes any dent in the prosecution case.

The real test is ocular account of incident as given by the eye

witnesses. If their evidence is found to be consistent, reliable and

trustworthy then merely because of some overwriting in the station

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diary, the prosecution case cannot be disbelieved. Especially in the

instant case when there is prompt lodging of the F.I.R., giving all

the details of the incident and the particular role played by each of

appellant. The law is well settled that much importance cannot be

given to the lacunas in investigation or lapses committed by the

Investigating Officer deliberately or otherwise. If such lacunas or

defects in investigation are given much importance, it would be as

good as amounting to playing in the hands of Investigating Officer.

The deciding factor for the Courts whether to believe or not to

believe the prosecution case is the oral evidence of the eye

witnesses. If on critical appreciation of their evidence, it inspires

confidence in the judicial mind as in the instant case, alleged defects

or lapses in the investigation are required to be ignored. As

observed by the Apex Court in Ram Bihari Yadav -vs- State of

Bihar and ors, AIR 1998 (Supreme Court) 1850, "If primacy is

given to designed or negligent investigation or to the omissions or

lapses created as a result of faulty investigation, the faith and

confidence of the people would be shaken not only in the law

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enforcing agency, but in the administration of justice.

23. In the present case therefore, we are of considered

opinion that there is more than sufficient evidence on record to

prove the involvement of the appellants in the homicidal death of

the deceased. So far as appellant No.2 Balasaheb is concerned,

evidence on record proves that he has given four blows of the

sickle, which had resulted into causing injuries on the back and

waist of deceased. Out of them as per opinion of P.W.7 Dr. Rajput,

injury on the scapular region was sufficient in the ordinary course

of nature to cause death.

24. Even as regards the appellant No.1 Anandrao, the

evidence on record proves that he has assaulted the deceased with

sickle on his left and right thigh. The evidence of P.W.7 Dr.

Gulabsing Rajput proves that injury No.4 caused on the right

inguinal and hip joint region was also sufficient in the ordinary

course of nature to cause the death.

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25. Thus, both the appellants individually and also in

furtherance of their common intention need to be held guilty of

causing death of the deceased with fatal assault made by them.

Hence the submission advanced by learned counsel for appellants

that appellant No.1 Anandrao deserves to be acquitted in the

absence of any evidence on record, cannot be accepted. His

presence at the spot is proved. His involvement in the assault is also

proved. From the mere fact that he was not ordinarily residing in the

village and had come from Mumbai on that day itself is not

sufficient to exculpate him from the offence. It may be true that he

has not himself carried the weapon when he came to the spot. But

evidence on record categorically proves that he has taken the sickle

from the hands of his brother appellant No.2 Balasaheb and

inflicted two blows on the thighs of the deceased, out of which one

blow proved to be fatal. The evidence on record also proves that

while leaving the spot, he has carried the sickle with him. Both the

appellants have assaulted the deceased simultaneously. In such

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circumstances, the appellant No.1 Anandrao cannot get the benefit

of doubt. His involvement through out the incident is sufficiently

proved on record. While his brother was assaulting the deceased

with sickle and deceased was trying to save himself from the

assault, appellant No.1 Anandrao has pushed the deceased and fell

him on the ground. After his brother appellant No.2 Balasaheb

assaulted the deceased, appellant No.1 has again assaulted the

deceased with sickle on the thighs so as to prevent the deceased

from running away from the spot. It was he and his brother- the

appellant No.2, both of them have threatened P.W.10 Mahadeo not

to intervene in the assault to save the deceased. In such

circumstances it can hardly be accepted that role of appellant No.1

Anandrao is such so as to extend him the benefit of doubt.

Resultantly, we are of the considered opinion that the trial Court has

rightly convicted both the appellants for the offence under Section

302 r/w 34 of the Indian Penal Code. The appeal, therefore, holds

no merit. Hence appeal stands dismissed confirming the conviction

and sentence of both the appellants.

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26. The bail bonds of appellant No.1 Anandrao Patil stands

cancelled. He shall surrender before learned Sessions Court within

a period of 12 weeks from the date of this order, failing which the

learned Sessions Judge to take steps to take him in custody to

undergo his remaining sentence.

[ACTING CHIEF JUSTICE.]

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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CERTIFICATE

Certified to be true and correct copy of the original signed judgment.