Bombay High Court
The State Of Maharashtra vs Narayan Abarao Parve And Ors on 3 October, 2017
Bench: T.V. Nalawade
Cri. Appeal No. 249/2002
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 249 OF 2002
The State of Maharashtra
Through P.S.O., Purna P.S.
Dist. Parbhani. ....Appellant.
(Ori. Complainant)
Versus
1. Narayan s/o. Abarao Parve,
Age 55 years, Occu. Agri.,
R/o. Gaur, Tq. Purna,
Dist. Parbhani.
2. Prabhakar s/o. Narayan Parve,
Age 18 years, Occu. & R/o.
As above.
3. Balaji s/o. Nivrutti Parve,
Age 45 years, Occu. & R/o.
As above. ....Respondents.
(Ori. Accused)
Mr. S.D. Ghayal, APP for appellant/State.
Mr. H.F. Pawar h/f. Mr. A.H. Kapadia, Advocate for respondents.
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
RESERVED ON : 14/09/2017
PRONOUNCED ON : 03/10/2017
JUDGMENT : [PER T.V. NALAWADE, J.]
1) The appeal is filed by State to challenge the judgment
and order of Sessions Court, Parbhani delivered in Sessions Case No.
55/2001. The respondents/accused are acquitted of the offences
punishable under section 302 r/w. 34 and 447 r/w. 34 of Indian
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Penal Code ('IPC' for short). Both the sides are heard.
2) The facts leading to the institution of the appeal can be
stated as follows :-
Deceased Kanta was younger brother of accused No. 1.
Accused No. 2 is son of accused No. 1. Accused No. 3 is an
agriculturist to whom the land was given for cultivation by accused
Nos. 1 and 2. Partition had taken place amongst the deceased and
accused Nos. 1 and 2 and other brothers. The land which had come
to the share of deceased from village Gaur was having one well. The
water of this well was being used for irrigation purpose. The
deceased was also using the water for breeding fish in this well. On
1.11.2000 accused No. 3 collected some fish from this well and due
to that, the deceased had questioned accused No. 3. Quarrel had
taken place. It is the case of accused persons that they have the
share in the water of the well and as accused Nos. 1 and 2 had given
land to accused No. 3 for cultivation, he had right to go to the well.
The land of deceased was with Mallikarjun for cultivation. The
deceased was working as labour with Mallikarjun on annual labour
charge basis.
3) The incident in question took place on 5.11.2000 in the
field owned by Mallikarjun alias Baburao at about 11.00 a.m. The
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deceased was ploughing the land of Mallikarjun. Mallikarjun and his
son Rajesh were present in their field and there were other
employees of Mallikarjun like Shaikh Bashir, Shaikh Makdum.
Godavaribai, sister of Mallikarjun was also present in the field.
4) At about 11.00 a.m. all the three accused entered the
field of Mallikarjun with intention to assault deceased Kanta. Accused
No. 1 was holding sickle, accused No. 2 was holding stick and
accused No. 3 was holding axe. By using these weapons, they
attacked the deceased in the field of Mallikarjun. Mallikarjun and
Rajesh rushed to the spot to interfere and save the deceased and
after that, accused Nos. 2 and 3 left the field. Kanta was seriously
injured in the incident and he was having bleeding injuries.
5) Kanta was younger brother of accused No. 1 and so,
after seeing the bleeding injuries on the person of Kanta, accused
No. 1 repented and he decided to shift Kanta to hospital and accused
No. 1 and Rajesh then kept Kanta in bullock-cart of Mallikarjun and
they first took Kanta to the village. On the way, they met
Drupadabai Parkhe. To this lady, accused No. 1 confessed the
offence, by saying that he committed serious mistake in assaulting
the deceased. In village Gour, the injured was shifted to auto-
rickshaw and from there, accused No. 1 and others shifted Kanta to
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Purna.
6) In Purna, Kanta was taken to Purna Police Station where
report of Kanta was recorded by police at C.R. No. 129/2000 for the
offence punishable under section 326 r/w. 34 etc. of IPC at about
14.30 hours. In the report, Kanta gave the names of all the
aforesaid three accused persons to police as assailants. From the
police station, Kanta was taken to Government Hospital Purna. But
doctors from Purna Hospital were busy in other work and they asked
police to take Kanta either to Government Hospital Parbhani or
Government Hospital Nanded. Injured was then shifted to Nanded
Government Hospital. Doctor from Nanded Government Hospital
declared that Kanta was already dead.
7) Inquest panchanama of dead body of Kanta was
prepared in Government Hospital Nanded and police referred the
dead body for conducting P.M. examination. The P.M. was conducted
on 6.11.2000. Seven injuries which included six incised wounds were
found on the dead body and injuries had caused fractures to hand
and leg. There was fracture of occipit and the death took place due
to the head injury.
8) On 5.11.2000 itself the investigation was taken over by
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P.S.I. Gaur of Purna Police Station. During investigation, he arrested
all the accused persons. He prepared spot panchanama of the spot
situated in the field of Mallikarjun. Blood was there and earth sample
mixed with blood was taken over. The shoes of the deceased were
having blood stains and were lying on the spot of offence. They were
taken over. Two sticks were lying there and they were taken over.
9) During the course of investigation, accused Nos. 1 and 2
gave separate statements under section 27 of the Evidence Act and
on the basis of those statements, weapons like sickle and stick were
recovered by police. Accused No. 3 came to be arrested on
1.12.2000 and then his statement under section 27 of the Evidence
Act came to be recorded. On the basis of this statement, axe came
to be recovered. The statements of aforesaid witnesses came to be
recorded. All the aforesaid articles came to be sent to C.A. office and
after completion of investigation, chargesheet came to be filed for
the offence of murder and trespass.
10) The accused persons pleaded not guilty. The prosecution
examined in all 12 witnesses. Accused persons took the defence of
total denial. However, accused No. 1 admitted in the statement given
under section 313 of Criminal Procedure Code ('Cr.P.C.' for short)
that from the filed of Mallikarjun, he had shifted the deceased to
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Purna for treatment. Accused persons have also admitted that there
was dispute between them and the deceased over share of water of
well situated in the land of deceased. The Trial Court has given
acquittal on the circumstances which are being discussed at proper
places.
11) To prove that Kanta died homicidal death, the
prosecution has examined Dr. Devendra (PW 10) to prove the P.M.
report prepared by him. Inquest panchanama at Exh. 30 is admitted
by defence. Inquest panchanama shows that it was prepared on
5.11.2000 between 21.10 and 22.00 hours. These documents show
that widow of the deceased had identified the dead body and that
she had reached Nanded. Inquest panchanama shows that on the
head, there was bleeding injury and similarly, there was bleeding
injury on the left leg and right leg etc. Even panchas formed opinion
that sharp weapon like sickle or axe was used for inflicting these
injuries.
12) Dr. Devendra, (PW 10) of Nanded Civil Hospital has given
evidence on P.M. report which is proved in his evidence as Exh. 45.
The injuries are mentioned in column Nos. 17 to 19 of the P.M.
report and substantive evidence is given on the injuries by the
doctor. Injuries mentioned in column Nos. 17 to 19 are as under :-
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Column No. 17 :-
(i) IW over occipital region, 2" long
(ii) IW (Lt) arm 2" long posterior
(iii) IW (Lt) arm 2" long posterior
(iv) IW (Lt) arm 1" long
(v) Lt. thus nerlicial split up to bone
(vi) IW over Dorsum of (Lt) ring finger over middle
phalynx 1 " long
(vii) IW 1/2 " long (Rt) elbow posterior
Column No. 18 :-
(i) # skull occipit
(ii) # humearous 1/3rd (Rt)
(iii) # T/F (Lt) U/3
(iv) # proximal dorsum phalynx (Lt) thumb
Column No. 19 :-
(i) hematoma post over occipit
(ii) # Occipit
(iii) hematoma (Lt) over occipit region
13) Dr. Devendra (PW 10) has given opinion that the death
took place due to head injury and also the multiple fracture injuries
mentioned above. No specific evidence is brought on the record that
these injuries, in ordinary course of nature, are sufficient to cause
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death. But the circumstance remains that the aforesaid injuries
caused the death. Dr. Devendra (PW 10) has given evidence that all
the injuries were anti-mortem in nature and injury No. 1 can be
caused by axe. He has given evidence in examination in chief that
injury Nos. 2 to 7 can be caused by weapon like sickle. He has
deposed that injury Nos. 2 to 7 can be also caused by weapon like
axe. The challenge to the medical evidence is being discussed at
proper place. But, the aforesaid evidence is sufficient to prove that
Kanta died homicidal death. The defence has not disputed that it was
homicide.
14) To prove that respondents/accused Nos. 1 to 3 were
authors of injuries and they caused the death, the prosecution relied
on direct evidence of eye witnesses, on the evidence of motive and
other circumstantial evidence which include the recovery of weapons
made on the basis of statements given by accused under section 27
of Evidence Act. The clothes of the accused Nos. 1 and 2 having
blood stains were also recovered. The prosecution has also relied on
the evidence of extra-judicial confession given by accused No. 1 to
one lady. There is also the evidence of dying declaration, report of
the deceased to Purna Police against the accused.
15) Waghmare (PW 4), Police Head Constable was Police
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Station Officer of Purna Police Station on 5.11.2000. He has deposed
that Kanta, deceased came to the police station and gave report on
that day regarding the incident. He has given evidence that the
report of Kanta was recorded by him and in the report, the deceased
disclosed that all the three accused had assaulted him. His evidence
shows that motive was also told in the F.I.R. and the report recorded
by him bears thumb impression of Kanta. The F.I.R. is duly proved
as Exh. 24. As contents of this documents have relation to the cause
of death and so, in view of the provision of section 32 of Evidence
Act, this document can be treated as dying declaration. On the basis
of this document, crime at C.R. No. 129/2000 was registered though
for causing injuries by all the accused persons. It was recorded at
14.30 hours of 5.11.2000. The incident had taken place after 11.00
a.m. on that day and so, due importance needs to be given to this
document.
16) In Exh. 24, dying declaration, specific role was attributed
to each accused. The weapon used by each accused was described
by the deceased by informing that accused No. 1 was holding sickle
and he inflicted injuries by using sickle on left hand (cut thumb),
accused No. 2 used stick, he gave blow on legs and head and
accused No. 3 used axe and gave blow on left hand and shoulder. In
Exh. 24, the names of persons, who witnessed the incident and
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rescued him like Mallikarjun (Baburao) and Rajesh were also
mentioned by the deceased.
17) In the statement given under section 313 of Cr.P.C. by
accused No. 1, he admitted that from the field of Mallikarjun, he had
shifted Kanta to Purna as he wanted to take him to hospital. The
nature of evidence shows that Kanta was first taken to police station
as doctors would not have admitted Kanta unless there was
reference letter of police. Thus, accused No. 1 has indirectly
admitted that when Kanta gave report to police, he was present in
the company of Kanta. Waghmare (PW 4) has given evidence that
the deceased was brought in auto-rickshaw, but he walked up to the
police station from auto-rickshaw. The evidence of Waghmare (PW
4) shows that he gave requisition letter to Kanta and Kanta was
referred to Government Hospital Purna for treatment and
examination. It is only suggested to Waghmare (PW 4) that Kanta
had not given report at Exh. 24 and this suggestion is denied by PW
4.
18) In the cross examination of Waghmare (PW 4), it is
brought on the record that two persons were in the company of
deceased and they reached to police station at about 2.30 p.m. It is
brought on the record that Waghmare (PW 4) had personally verified
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that there was injury on the head. In Exh. 29, the
requisition/reference letter given to the Government Hospital, the
injury on the head was not mentioned. It is already observed that in
Exh. 24, F.I.R., there was mention of assault made on the head
though by using stick. There is some inconsistency in the description
of injuries given in reference letter, Exh. 29. But, that cannot help
the accused in any way. It is suggested to Waghmare (PW 4) that
the dead body of Kanta was taken to police station. But, this
suggestion is also denied and no such probability is created. There
are many more circumstances to rule out that probability.
19) The evidence of Waghmare (PW 4) does not show that
he felt that there were serious injuries sustained by Kanta. Much was
argued on circumstance like description of injuries given in Exh. 29,
the reference letter issued by this police station. Due to nature of
injuries described in Exh. 29 also, it can be said that it was
carelessness of police and even when injuries were mentioned in
F.I.R. by the deceased, those injuries were not mentioned in Exh.
29. At Exh. 28, there is the report given by police Head Constable to
the P.S.I. of the police station on 5.11.2000. The evidence is given
and this document is proved to show that the deceased was taken to
Purna Government Hospital at about 13.45 hours, but the doctor
there was busy and the hospital had advised police to take Kanta to
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Civil Hospital Parbhani or Civil Hospital Nanded. There is
endorsement of the hospital of such nature on Exh. 29. It can be
said that in this document also different time is mentioned as 13.45
hours. Substantive evidence is given that the deceased reached to
police station at about 2.30 p.m. and so, not much can be made out
due to this inconsistency. This record and circumstances show that
the police machinery was acting most carelessly and it can be said
that even the hospital had not taken care to see the injuries of Kanta
and the endorsement of aforesaid nature was made by the hospital.
It can be said that within 2-3 hours thereafter Kanta died. No benefit
of this circumstance can be given to the accused as carelessness has
become the routine of the Government machinery including the
police and the hospital. They never take poor persons seriously.
20) Mallikarjun (PW 1) has deposed that about four days
prior to the date of incident, the deceased had quarrel with accused
No. 3 as accused No. 3 had collected fish from the well of the
deceased when the deceased had done the breeding of fish in the
well. The evidence of all the witnesses and suggestions given to
them by the defence counsel show that defence is not disputing that
there was dispute between the deceased on one side and accused
Nos. 1 to 3 on other and so, the circumstance of existence on motive
is not seriously disputed by the defence.
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21) Mallikarjun (PW 1 ) has deposed that on 5.11.2000 at
about 11.00 a.m. all the three accused together entered his land
where the deceased was ploughing the land. He has given evidence
that accused No. 1 was holding sickle, accused No. 2 was holding
stick and accused No. 3 was holding axe. He has deposed that
accused No. 1 started quarreling with deceased by giving abuses and
then accused No. 2 gave stick blow on the head of deceased. He has
deposed that accused No. 1 gave sickle blow on the hands, legs,
head and back of deceased. He has deposed that accused No. 3 gave
blow of blunt side of axe on the back of Kanta. He has deposed that
when he and his son Rajesh rushed forward to rescue the deceased,
accused Nos. 2 and 3 left his field.
22) Mallikarjun (PW 1) has deposed that accused No. 1 and
Rajesh (son of Mallikarjun) shifted the deceased in the bullock-cart
of Mallikarjun to the house of accused No. 1 and from there, the
deceased was shifted in auto-rickshaw by accused No. 1 and others
to Purna. Accused No. 1 has not disputed that he along with Rajesh
had shifted the deceased from this field and then accused No. 1 had
taken the deceased to Purna in auto-rickshaw. That can be seen in
the statement given under section 313 of Cr.P.C. by accused No. 1.
The cross examination of Mallikarjun (PW 1) is mainly on the dispute
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which was going on between the deceased and Mallikarjun on one
side and accused no. 1 on other side. There is also the cross
examination made to create probability that Mallikarjun had gone
towards river side and in between, there was standing crop due to
which there was no opportunity to Mallikarjun to witness the
incident. No such probability is created in the cross examination of
Mallikarjun by the defence counsel.
23) In the cross examination of Mallikarjun (PW 1),
omissions in the police statement are pointed out like he had not
stated before police that accused No. 2 gave blow of stick on the
head of accused No. 1, accused No. 1 gave blow of sickle on head,
back and legs. These omissions are proved in the evidence of Police
Officer, who recorded the police statement of Mallikarjun. Thus, the
omissions are in respect of the particular blows given by three
accused persons.
24) In the cross examination of Mallikarjun (PW 1), it is
brought on the record that the distance between the spot of incident
and Purna is around 6 k.m. It is brought on the record that he had
laid the pipeline in the land of accused No. 3. It is suggested to him
that due to this act of Mallikarjun, there is dispute between him and
accused No. 3. But this suggestion is denied by saying that the
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pipeline was laid many years back. His evidence shows that electric
motor was installed by him on the river 20 years prior to the date of
incident and at that time, pipeline was laid. On the contrary,
Mallikarjun (PW 1) has deposed that his relations with accused Nos.
1 to 3 were cordial. It can be said that for accused, there was reason
to quarrel with deceased, but there was no reason to quarrel with
Mallikarjun. This is because the quarrel was picked up by the
accused with deceased and not with Mallikarjun even when
Mallikarjun was there.
25) In the cross examination of Mallikarjun (PW 1), he has
admitted that he had no talk with Kanta after the assault was made
on him. He has also admitted that Kanta was not able to speak. He
has admitted that accused No. 1 had virtually lifted Kanta to keep
him in bullock-cart as he wanted to take Kanta for treatement at
Purna. In the cross examination of Mallikarjun (PW 1), it is brought
on the record that accused No. 1 and one Manohar Shinde (PW 8)
shifted the deceased to Purna Hospital. Suggestion is also given that
Kanta died in the field, but that suggestion is denied. The tenor of
the cross examination shows that the defence did not dispute the
presence of Mallikarjun in the field at the relevant time, though the
defence tried to bring on record that Mallikarjun was at quite long
distance and the spot was not visible from the place where
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Mallikarjun was working. The evidence of Mallikarjun and other
witnesses and also the circumstances that his bullock-cart was used
and Rajesh had given company to accused No. 1 for shifting the
deceased to the house of accused No. 1 corroborate the direct
evidence given by Mallikarjun (PW 1).
26) The evidence of Shaikh Bashir (PW 2), who was working
with Mallikarjun, is similar in nature. However, this witness has not
given description of specific blows given by each accused to the
deceased. He has also described the weapons which the accused
were holding at the relevant time.
27) In the cross examination of Shaikh Bashir (PW 2), it is
brought on the record that these persons were doing different work
at different places in the field of Mallikarjun. To him also, it is
suggested that he was at longer distance and from there, it was not
possible for him to see the actual incident. This suggestion is denied
by Shaikh Bashir (PW 2).
28) The evidence of Shaikh Makdum (PW 3), other employee
of Mallikarjun is similar in nature. He also has described the
weapons used by all the accused. He has given specific evidence
that accused No. 2 gave blow of stick to Kanta. His cross
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examination also shows that the defence tried to create a probability
that he was at longer distance and from there, it was not possible
for him to see the incident. This suggestion is denied. Some
omissions in relation to police statements of Shaikh Bashir (PW 2)
and Shaikh Makdum (PW 3) are pointed out to them, but they are
not that material. The evidence of these three witnesses need to be
considered separately as a whole as eye witness version and then
together.
29) Rajesh (PW 9), son of Mallikarjun has given similar
evidence. It is already observed that in the statement given under
section 313 of Cr.P.C., accused No. 1 has admitted that this witness
had helped him for shifting Kanta in bullock-cart from the field. The
tenor of cross examination of Rajesh (PW 9) shows that it is not
disputed that he was travelling in bullock-cart with accused No. 1
and on the way, they met Gayabai, another witness. Thus, the
evidence of all the four eye witnesses is consistent with each other
on material points. Though specific blows given by each accused are
not described and there are some omissions in relation to police
statements of the witnesses, those omissions are not material and it
can be said that they rushed to the spot of incident when they heard
hue and cry as the incident was taking place in the field where all of
them were working. In view of the distance between other fields and
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the spot of incident, it can be said that the incident took place well
inside the field of Mallikarjun and so, there was the opportunity to all
the witnesses to see the accused holding weapons, their entry in the
field and their presence on the spot at the relevant time and also
heir exit from the field.
30) Gayabai (PW 7) is examined by the prosecution to prove
that accused No. 1 confessed to her that he had assaulted the
deceased and he had committed mistake in making such assault.
This witness has deposed that when accused No. 1 was taking the
deceased in bullock-cart to his house, she made inquiry with accused
No. 1 and then accused No. 1 gave extra-judicial confession to her
that in anger, he had caused injuries to Kanta. In the cross
examination of this witness, one contradiction is pointed out to her
that she had stated before police that she had asked accused No. 1
as to why he had given beating mercilessly to Kanta. Though this
contradiction is there, that cannot make much difference as she was
supposed to give evidence on the disclosure made by accused No. 1
to her immediately after the incident. There is no such omission in
respect of extra-judicial confession given by accused No. 1.
31) Manohar Shinde (PW 8) is examined as panch witness.
He was expected to give evidence that accused No. 3 gave
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statement to police under section 27 of Evidence Act. This witness
resiled from the statement and so, the learned APP cross examined
him.
32) The evidence Manohar Shinde (PW 8) cannot be
discarded in toto in view of the circumstance that the witnesses are
not disputing that Manohar Shinde was in the company of accused
No. 1 when the deceased was shifted to Purna. There is some cross
examination of this witness made by both APP and the defence
counsel in which both sides have brought some evidence on record.
33) In the evidence of Manohar Shinde (PW 8), it is brought
on the record by defence that he, accused Nos. 1 and 2 and wife of
deceased were present in auto-rickshaw in which the deceased was
shifted to Purna. It is brought on the record that they reached police
station at about 1.45 p.m. This is again relevant circumstance as in
one document like Exh. 28, such time is mentioned. Surprisingly, the
defence has brought on the record that Kanta was serious, but he
was able to speak. This circumstance corroborates the case of
prosecution that Kanta was not in a position to give report against all
the three accused persons. It is brought in the evidence of Manohar
Shinde (PW 8) that Kanta was shifted to Nanded in ambulance from
Purna and they left Purna at about 6.00 p.m. The evidence of Shinde
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(PW 8) brought on the record by defence is not supporting the
defence, but it is supporting the case of prosecution.
34) The aforesaid evidence is sufficient to prove that all the
four eye witnesses were present in the field when the incident
started and they had the opportunity to see all the three accused
persons holding the weapons described by them. Incident took place
at about 11.00 a.m. and all the accused persons were known to four
eye witnesses. Thus, the evidence is sufficient to infer that the
accused persons are the authors of the injuries which were found on
the dead body of Kanta. The statements of these witnesses were
recorded by police on 5.11.2000 itself and this circumstance shows
that there was no room for concoction. There was also no reason for
them to falsely implicate the accused persons. Their evidence
remained unshattered on material points.
35) The C.A. report shows that no blood was detected on the
weapons shown to be recovered on the basis of statements given by
accused persons. Those weapons were confronted to doctor as
already mentioned. Due to absence of blood on the weapons and as
such weapons, articles are readily available in every house of the
village, there is no need to discuss in detail the evidence of panch
witness Shinde (PW 8) and Rajendrasingh Gaur (PW 11),
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Investigating Officer and also Subhash (PW 6).
36) Evidence is given by examining Gaur, (PW 11),
Investigating Officer to prove the seizure of clothes of accused Nos.
1 and 2. They were arrested on the day of incident and
panchanamas are proved as Exhs. 35 and 36. This evidence shows
that blood was found on clothes of accused Nos. 1 and 2. Article
Nos. 6 and 7 belong to accused No. 1. On banian blood of group 'O'
was detected and on 'Dhoti' human blood was detected. Article Nos.
8 and 10 are of accused No. 2 and on both the clothes, blood of
group 'O' was detected. Here only it needs to be mentioned that
accused No. 2 has not come with the case that he had helped
accused No.1 in lifting Kanta to bullock-cart. There is no explanation
from him on the circumstance like presence of blood group 'O' on his
clothes. Evidence is given of Subhash (PW 6) and Gaur (PW 11),
Investigating Officer on the statement given by accused No. 2 which
lead to discovery of stick. Exh. 37 and 37-A, memorandum
panchanamas and C.A. report, Exh. 51 show that human blood was
detected on the stick. On the spot of incident also some sticks were
lying. It does not look probable that such sticks were taken away
from the spot of offence and there is no explanation with the
prosecution as to why one piece of wood and one stick were lying on
the spot. Due to these circumstances the evidence of recovery of
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stick having blood stains on the basis of statement given by accused
No. 2 cannot be used in favour of prosecution.
37) The evidence of Gaur (PW 11), Investigating Officer and
the evidence of Vishwambhar (PW 5), panch witness of spot
panchanama is there to prove the spot panchanama, Exh. 33. It
shows that one piece of wood having blood stains and one small
stick were lying there. Shoes of the deceased were lying there and
they were having blood stains. These articles were taken over. Earth
sample mixed with blood was also collected. The defence has not
seriously disputed that the incident took place in the field of
Mallikarjun. This circumstantial evidence supports the direct
evidence.
38) Blood sample of accused Nos. 1 to 3 and deceased were
taken. On the clothes of accused No. 2 there was blood of group 'O'
when his blood group is 'A'. The blood group of accused No. 1 is 'O',
which was also the blood group of deceased. Blood group of accused
No. 3 could not be determined. Due to evidence brought on record
that accused No. 1 had shifted the deceased to Purna by virtually
lifting him in bullock-cart, not much importance can be given to the
circumstance that blood of group 'O' was found on his clothes. Even
if that part of evidence is not considered against accused No. 1, that
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cannot make much difference as there is already sufficient evidence
against him as quoted above and which is being discussed
hereinafter.
39) Accused No. 3 came to be arrested on 1.12.2000, after
about three weeks of the incident. No specific evidence is given by
Investigating Officer Gaur (PW 11) that accused No. 3 was not
traceable. His clothes were not seized and no blood was found on
the weapon recovered on the basis of his statement. Though these
circumstances are there, the evidence already discussed shows that
quarrel started due to questioning by deceased to accused No. 3 and
it is accused No. 3, who had collected fish from the well of the
deceased. There is one more circumstance like medical evidence,
which shows that vital injury which was found on the head can be
caused by axe and not by sickle. The evidence is given that accused
No. 3 used axe. There is nothing to disbelieve the direct evidence on
this point and this circumstance points finger to accused No. 3 as the
author of the said injury.
40) As there is the evidence of aforesaid nature, this Court
has no hesitation to hold that the prosecution has proved the
following things :-
(i) The deceased gave report to police, Exh. 24, and the
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report needs to be treated as dying declaration.
(ii) There is direct evidence of four eye witnesses to
show that all the three accused persons came together to
the field of Mallikarjun and the accused were armed with
weapons like sickle, stick and axe.
(iii) All the three accused actively participated in the
incident and due to their overtacts, the injuries were
caused to the deceased. The head injury proved to be fatal,
it caused the death.
(iv) Immediately after the incident, accused No. 1
admitted the guilt, gave extra-judicial confession to
Gayabai (PW 7) by saying that he has committed serious
mistake by assaulting the deceased.
(v) There was motive for all the three accused for crime
and there was the dispute over sharing of water of the well
situated in the field of the deceased. There was quarrel few
days prior to the date of incident between the deceased
and accused No. 3 as accused No. 3 had collected fish from
the well when deceased had spent for breeding fish in this
well.
41) It was argued for the accused persons that there is
discrepancy in the direct evidence and dying declaration. It is true
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that there is discrepancy in relation to injuries mentioned by the
deceased in Exh. 24 and the direct evidence and also the medical
evidence. But, that discrepancy cannot be called as fatal. The
approach of the police officer which is already mentioned and the
opportunity which the four eye witnesses could have to witness
particular blow given by each accused is also mentioned. Further, a
person, who sustained injuries and who is disclosing the incident to
give the names of assailants, will not spare the person who had
assaulted him. For the purpose of section 32 of Evidence Act, it is
sufficient that in the disclosure, names of persons who inflicted the
injuries are mentioned and it is not necessary that the role played by
each accused need to be mentioned. In ordinary course, conviction
can be based only on the basis of dying declaration and in the
present matter, in addition to the evidence of dying declaration,
there is direct evidence and evidence of other circumstances already
quoted. In the present matter, due importance need to be given to
all the circumstances and if the pieces of evidence are considered
together, the evidence is more that sufficient to prove that the
accused assaulted the deceased and there was common intention of
the accused to make such assault. The evidence is also sufficient to
prove that they used weapons like sickle, axe and stick.
42) The learned Judge of the Trial Court has acquitted all the
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accused persons by giving following reasons. This Court is also
discussing as to whether and how the reasons given by the Trial
Court are not sound and are not having base of principles of
appreciation of evidence.
(i) Mallikarjun (PW 1) has given evidence that he
had seen the accused giving abuses to the deceased, he
had seen accused No. 1 giving many blows of sickle on
back, head, leg etc. of the deceased, when he had not
given such statement before police. Similarly, Mallikarjun
(PW 1) has given evidence against accused No. 2 that
accused No. 2 gave blow of stick on the head deceased,
but such specific role was not attributed to accused No. 2 in
the statement given before police. These omissions are
said to be major amounting to contradictions.
The relevant evidence of the present matter is
already discussed and that shows that in view of the place
where incident took place, time of the incident and the
possibility of the opportunity to the witnesses to witness
the incident, there is no need to consider the evidence in
such minute details and evidence as a whole of every
witnesses needs to be considered. Further, the other
circumstances corroborate the versions of the witnesses
and so, over much importance could not have been given
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to the aforesaid omissions proved by defence.
(ii) The prosecution witnesses had probably no
opportunity to see the actual assault and they were
probably at longer distance from the spot of offence. The
circumstance that prosecution witnesses did not prevent
the assailants from assaulting the deceased.
These circumstances are also considered and
discussed by this Court already. When the presence of
these witnesses in the field is admitted, the incident took
place in broad day light and there must have been hue and
cry, and so, it cannot be said that the witnesses had no
opportunity to see the accused persons in the field and
having arms as described in their hands. It was possible for
them even from long distance to see that assault was going
on. The evidence of spot panchanama is relevant on this
point and that is already discussed. Further, the evidence is
sufficient to prove the common intention and so, it was
necessary for the prosecution to attribute some overtacts
and that is done by giving evidence that all the accused
assaulted the deceased. There is no law making it
necessary in such a case to describe the incident in minute
details to make it possible to convict the accused. If that
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approach is used, the provision of section 34 of IPC will
become otiose. Thus, the Trial Court has given over much
importance to the circumstance that before police specific
overtacst by mentioning particular blow given by particular
accused was not mentioned by some witnesses.
(iii) In P.M. report, the injuries are not described in
minute details like depth, width etc.
The length of injury is given by the doctor. The
Trial Court has given over much importance to this
circumstance also. In view of the other part of the medical
evidence and also the evidence of eye witnesses and dying
declaration, not much can be made out from this
circumstance. There is specific opinion given on the use of
weapons and it is described as hard and sharp weapons.
Other things like the manner in which the weapon was
used etc. cannot be considered much by the Court and
suggestions in those regards are generally hypothetical.
The Trial Court has committed error by using this
circumstance also for giving benefit of doubt to the
accused.
(iv) Dr. Devendra (PW 10) has given opinion that
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due to injury sustained on head, a patient may go in shock,
he can become unconscious and he may die immediately.
This circumstance is also used in favour of defence.
Even if this circumstance is accepted as it is
and it is believed that the death took place on the spot,
only the evidence of dying declaration (Exh. 24) could have
been ignored. Even in absence of evidence of dying
declaration, in the present matter there is the evidence of
eye witnesses which needs to be believed. Further, there is
no corresponding evidence on the time of death and so, the
opinion given by Dr. Devendra (PW 10) of the possibility of
immediate death cannot be accepted as it is. When there is
positive evidence that deceased gave report, Exh. 24,
between 2.00 and 3.00 p.m. on the same day and even the
defence has brought on the record in the cross examination
of witnesses that the deceased was able to speak, the
opinion evidence could not have been accepted by the
Court. The Trial Court has committed grave error in
accepting the opinion and discarding the direct evidence.
(v) Mallikarjun (PW 1) allowed accused No. 1 to
take injured to Purna in his bullock-cart. This circumstance
is considered in favour of accused by Trial Court by holding
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that if accused No. 1 had assaulted the deceased, in
ordinary course, Mallikarjun would not have allowed
accused No. 1 to shift the deceased from the place of
offence.
This reasoning cannot be accepted. The
deceased was younger brother of accused No. 1 and the
evidence on record is sufficient to show that when accused
No. 1 saw the bleeding injuries sustained by the younger
brother, he repented and he decided to take the steps to
save the life of his younger brother. When there is such
evidence and when there is specific case of accused No. 1
that he shifted the deceased to Purna with the help of
Rajesh in the bullock-cart of Mallikarjun, the evidence given
by Rajesh and Mallikarjun could not have been ignored.
Thus, the circumstance which can be used against accused
No.1, is used in his favour by the Trial Court in the present
matter.
(vi) The evidence of dying declaration is
inconsistent with the medical evidence. This circumstance
is considered by the Trial Court in favour of the accused by
holding that the contents of dying declaration describing
the injuries are not consistent with the injuries described in
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P.M. report.
This Court has already made sufficient
observations on this circumstance while discussing the
manner in which the evidence given under section 32 of
the Evidence Act needs to be appreciated. This Court holds
that the Trial Court has committed grave error in using this
circumstance in favour of defence.
(vii) The evidence of each witness is considered
separately and each piece of evidence is considered
separately by the Trial Court and after that it is observed
that each piece of circumstance is suspicious in nature.
This approach of appreciation and analysis of
evidence is not proper and correct. This Court has already
discussed the so called discrepancies noted by the Trial
Court in the evidence of witnesses. The evidence as a
whole of every witness needs to be considered and then
other part of the evidence given by other witnesses needs
to be seen to ascertain as to whether other evidence gives
necessary general corroboration. That approach was not at
all used by the Trial Court. The Trial Court has given
importance to the circumstances like inconsistency in the
evidence collected under section 27 of the Evidence Act.
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This Court has already observed that even if there was no
blood found on the weapon like axe and sickle, that
circumstance cannot shake the direct evidence. Even non
recovery of weapon cannot go to the root of the matter if
other part of the evidence is convincing and the Court finds
that the other part of the evidence needs to be believed
and accepted.
(viii) The copy of F.I.R. was sent late i.e. on
7.11.2000 to the Court of J.M.F.C. The Trial Court has
discussed the requirement of provision of section 157 of
Cr.P.C. and it is held that due to sending copy late, by one
day, a suspicion is created about the F.I.R. For giving such
opinion, the Trial Court has placed reliance on two cases
cited by the defence counsel reported as 2001 ALL MR
(Cri) 994 [State of Rajasthan Vs. Teja Singh and
Ors.] and AIR 1980 SUPREME COURT 638 [Marudanal
Augusti Vs. State of Kerala].
On this point, the case of Apex Court reported
as (2001) 7 SCC 318 [Anil Rai Vs. State of Bihar] can
be cited. The observations made by the Apex Court shows
that the facts and circumstances of each and every case
are always different. In section 157 of Cr.P.C. there is
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nothing to show that the F.I.R. cannot be used in evidence,
if there is no strict compliance of section 157 or filing of the
F.I.R. in the Court of J.M.F.C. late will vitiate the case itself.
The observations made by the Apex Court show that when
there is no possibility of concoction, creating false
evidence, then over much importance cannot be given to
this circumstance. In the present matter, accused Nos. 1
and 2 were arrested on 5.11.2000 itself and they were
produced before the Magistrate along with remand report
dated 6.11.2000. In the remand report sum and substance
of the allegations made in the F.I.R. are mentioned and
names of all the three accused are also mentioned. Thus,
there is no possibility of creation of false F.I.R. On the
contrary, it can be said that the report of the deceased,
Exh. 24, was not that specific to describe minutely and if
he had survived, the vagueness could have been certainly
considered. Thus, evidence on record shows that proper
approach was not adopted for appreciation of the things
and also the position of law.
43) The learned APP placed reliance on the case reported as
AIR 1973 (SC) 2622 [Shivaji Sahebrao Bobade Vs. State of
Maharahtra] and submitted that in view of the aforesaid approach
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of the Trial Court Judge, interference is warranted in the decision
and the decision needs to be set aside. The Apex Court has made
following observations :-
"In many cases, especially the earlier ones the Court
has in laying down such principles emphasised the
necessity of interference with an order of acquittal
being based only on compelling and substantial
reasons and has expressed the view that unless such
reasons are present an Appeal Court should not
interfere with an order of acquittal (vide Suraj Pal
Singh v. The State, (1952) SCR 193 = (AIR 1952 SC
52) Ajmer Singh v. State of Punjab, (1953) SCR 418 =
(AIR 1953 SC 76) Puran v. State of Punjab, AIR 1953
SC 4590. The use of the words compelling reasons
embarrassed some of the High Courts in exercising
their jurisdiction in appeals against acquittals and
difficulties occasionally arose as to what this Court had
meant by the words compelling reasons. In later years
the Court has often avoided emphasis on compelling
reasons but nonetheless adhered to the view
expressed earlier that before interfering in appeal with
an order of acquittal a Court must examine not only
questions of law and fact in all their aspects but must
also closely and carefully examine the reasons which
compelled the lower courts to acquit the accused and
should interfere only if satisfied after such examination
that the conclusion reached by the lower court that the
guilt of the person has not been proved is
unreasonable (Vide Chinta v. The State of Madhya
Cri. Appeal No. 249/2002
Pradesh, Criminal Appeal No. 178/1959 decided on
18.11.1960 (SC), Ashrafkha Haibatkha Pathan v. The
State of Bombay, Criminal Appeal No. 38 of 1960
decided on 14.12.1960 (SC).)
"..............On close analysis, it is clear that the
principles laid down by the Court in this matter have
remained the same. What may be called the golden
thread running through all these decisions is the rule
that in deciding appeals against acquittal the Court of
Appeal must examine the evidence with particular
care, must examine also the reasons on which the
order of acquittal was based and should interfere with
the order only when satisfied that the view taken by
the acquitting Judge is clearly unreasonable. Once the
appellate court comes to the conclusion the view taken
by the lower court is clearly an unreasonable one that
itself is a "compelling reason" for interference. For, it is
a courts duty to convict a guilty person when the guilt
is established beyond reasonable doubt, no less than it
is its duty to acquit the accused when such guilt is not
so established."
44) This Court has discussed all the evidence of the present
matter and also the reasoning given by the Trial Court. If the law
laid down by the Apex Court in the case of Shivaji cited supra is
kept in mind, it can be said that present one is a fit case where
interference is warranted. This Court has no hesitation to hold that
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the view taken by the Trial Court is clearly unreasonable one and
that itself is 'compelling reason' for interference. This Court further
holds that the Trial Court has failed to discharge it's duty properly
and correctly. In view of the material available against all the
three accused, this Court holds that all the three accused persons
need to be convicted for causing death of Kanta.
45) The question now arises as to what offence is committed
by these three persons. On the basis of evidence already discussed,
this Court holds that there was no intention to cause the death of
Kanta. However, there was intention to teach lesson to Kanta due to
aforesaid dispute and for that, assault was made. Weapons like
sickle and axe were used and due to that, it needs to be presumed
that there was knowledge to the accused that by such attack, they
were likely to cause the death. However, the injuries were not
caused with intention to cause the death. This Court holds that
conviction needs to be given to all the three accused for offence
punishable under section 304 Part II r/w. 34 of IPC. Similarly the
prosecution has proved that the accused persons committed the
trespass in the land of Mallikarjun (PW 1) and thereby committed
the offence punishable under section 447 r/w. 34 of IPC.
46) The incident in question took place in the year 2000 and
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this Court is convicting and sentencing the accused in the year 2017.
Due to overall circumstances and also this circumstance, this Court
holds that sentencing the accused with rigorous imprisonment of
three years would be sufficient in the present matter. In the result,
following order is made.
ORDER
(I) The appeal is partly allowed.
(II) The judgment and order of Trial Court
acquitting accused No. 1 - Narayan s/o. Abarao Parve,
accused No. 2 - Prabhakar s/o. Narayan Parve and accused
No. 3 - Balaji s/o. Nivrutti Parve is hereby set aside.
Aforesaid accused Nos. 1 to 3 are acquitted of the offence
of murder, but they stand convicted for the offence
punishable under section 304 Part II of IPC r/w. section 34
of IPC and each accused is sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs. 500/-
(Rupees five hundred). In default of payment of fine, each
accused is to further undergo rigorous imprisonment for
one month.
(III) Similarly, accused No. 1 - Narayan s/o. Abarao
Parve, accused No. 2 - Prabhakar s/o. Narayan Parve and
accused No. 3 - Balaji s/o. Nivrutti Parve stand convicted for
the punishable under section 447 r/w. 34 of IPC and each
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accused is sentenced to suffer rigorous imprisonment for
one month.
(IV) Both the substantive sentences are to run
concurrently.
(V) Accused Nos. 1 to 3 are entitled to set off in
respect of the period for which they were behind bars in
this crime. This period is to be mentioned by the office in
the warrant which is to be sent to the Jail authority.
(VI) Copy of this judgment is to be given to the
accused free of cost.
[S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
