Bombay High Court
Gundya Yellappa Arote And Others vs State Of Maha on 20 September, 2017
Bench: T.V. Nalawade
Cri. Appeal No. 232/2001
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 232 OF 2001
1. Gundya s/o. Yellappa Arote,
Age 25 years,
2. Sailu s/o. Yellappa Arote,
Age 22 years,
3. Mondhya Jalba s/o. Yellappa Arote,
Age 32 years,
4. Jalba s/o. Yellappa Arote,
Age 32 years,
(Appeal is abated against
appellant No. 4 as per order
dated 14.10.2016)
5. Yellappa s/o. Yellappa Arote,
Age 19 years,
All R/o. Shahapur, Tq. Degloor,
District Nanded. ....Appellants.
Versus
The State of Maharashtra ....Respondent.
Mr. S.B. Bhapkar, Advocate for appellant Nos. 1 to 3 & 5.
Mr. V.S. Badakh, APP for respondent/State.
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
RESERVED ON : 12/09/2017
PRONOUNCED ON : 20/09/2017
JUDGMENT : [PER T.V. NALAWADE, J.]
1) The appeal is filed against judgment and order of
Cri. Appeal No. 232/2001
Sessions Case No. 27/1994, which was pending in the Court of
learned Additional Sessions Judge, Biloli. All the appellants are
convicted and sentenced for the offences punishable under sections
302, 324 r/w. 149 of Indian Penal Code ('IPC' for short) and each
accused is also convicted and separately sentenced for offences
punishable under sections 147 and 148 of IPC. During the pendency
of the present appeal, appellant No. 4 died and so, his appeal is
already disposed of as abated.
2) In the present matter, appellant No. 5 has taken the
defence that at the relevant time, his age was below 18 years and
so, he is entitled to the benefit of provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2000 and also the provisions
of the Rules of 2007 framed under this Act. In view of this
contention, this Court had referred the matter of appellant No. 5 to
Juvenile Justice Board, Nanded to give finding. In a proceeding
bearing OMCA No. 4/2014 the Juvenile Justice Board gave finding
that present appellant No. 5, accused No. 5 was juvenile at the
relevant time in view of provisions of the aforesaid Act and the
Rules. This finding is not challenged by the State. In view of this
circumstance, the matter of appellant No. 5, accused No. 5 needs to
be disposed of in accordance with the law developed on this point
and the provisions of the aforesaid Act and the Rules.
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3) In short, the facts leading to the institution of the
present appeal can be stated as follows :-
Deceased - Hanmanlu was son of first informant -
Yellappa Savle. Yellappa Savle has two more sons by names Saibu
and Narayana. The deceased was aged about 30 years and he was
living with the first informant and his brothers in village Shahapur.
Present appellant Nos. 1 to 5 are the sons of one Yellappa s/o. Saibu
Arote. The house of accused is situated adjacent to the house of
first informant. There is a public water tap fixed by Village Panchayat
of this village in front of these houses and both the families were
collecting water from this tap for household use, for drinking
purpose. There was fixed time and only limited quantity of water
supply at this tap.
4) The dispute between the two families started about 15
days prior to the date of incident in question. The family of accused
had started some construction work over their property situated
adjacent to the property of first informant and for that purpose, they
were collecting water from aforesaid public water tap. Due to this act
of the accused, the family of the first informant was not getting
sufficient water from this tap. The family of the first informant had
requested the family members of the accused not to use the water
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from public tap for construction purpose. The accused were not
ready to listen to them. Due to the aforesaid dispute, quarrel started
between the two families on 8.1.1994. At about 5.00 p.m. on that
day supply of water was there at this tap and so, the deceased -
Hanmanlu went to the water tap for collecting the water. The
accused persons did not allow the deceased to take water and then
the quarrel started. The deceased left for giving report in respect of
this quarrel to Degloor Police Station.
5) After giving report, when the deceased was returning to
home, in the night time, near his house all the accused intercepted
him, questioned him about his conduct of going to police and
assaulted him. The first informant was present inside of the house
and after hearing hue and cry he came out of the house. He was
also assaulted. During the incident, the deceased assaulted Yellappa
Arote, father of the accused/appellants. When the persons gathered,
the accused left the place. The deceased and the first informant had
sustained injuries in that incident and so, they went to PHC
Shahapur. Dr. Dagade, who was incharge of this PHC, gave
treatment like dressing to both the first informant and the deceased
in the night time at about 2.00 a.m. of 9.1.1994.
6) On 9.1.1994 at about 7.00 a.m. there was S.T. bus from
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Shahapur to Degloor. The first informant and the deceased left home
for going to Degloor as they wanted to give report in respect of the
incident of the previous night in which the deceased and the first
informant were assaulted. When the first informant and the
deceased were sitting by the side of road and they were waiting for
the bus at the bus stop, all the five accused went there with sticks.
The accused expressed their anger by saying that the deceased had
assaulted their father on previous night and when he was at fault, he
was going to police. All the accused then assaulted the deceased.
During the incident, accused No. 5 gave one blow of stick on the
head of the deceased, the second blow of stick was given by accused
No. 1 and that was also given on the head of the deceased. It is the
case of State that other three accused persons and also the accused
Nos. 1 and 5 then together assaulted the deceased by using sticks
on both his hands, legs and back. When the first informant
intervened in the incident, he was also assaulted by accused No. 1
and blow of stick on the head of the first informant was given by
accused No. 1. It is the case of State that other accused persons
also assaulted the first informant.
7) Many persons gathered on the spot as the incident took
place near the bus stop. Nobody dared to intervene in the incident.
One Vithal Basatwar, who was vendor near the bus stop requested
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accused persons not to assault the deceased by saying that they
were giving beating to him as if he was an animal. After that
accused persons left the place. The deceased was seriously injured
in the incident. Saibu, brother of deceased learnt about the incident
and he came to the spot from the field. The bus arrived at the spot.
In this bus, the first informant and Saibu took the deceased to
Degloor by giving him support. From Degloor bus stand, they took
the deceased in one auto-rickshaw to Government Hospital of
Degloor.
8) In the campus of the hospital from Degloor, when the
first informant and Saibu took the deceased out of auto-rickshaw,
the deceased had hiccup and he breathed last in the campus of the
hospital. It was at about 8.30 a.m. of 9.1.1994.
9) The hospital from Degloor informed about the death of
Hanmanlu to Degloor Police Station. The Investigating Officer, PSI
Shri. Shaikh went with the staff to the campus of the hospital. He
recorded the report given by father of the deceased and crime came
to be registered. In this crime, inquest panchanama of the dead
body of the deceased was prepared. The dead body was referred for
post mortem ('PM' for short) examination. The PM examination on
the dead body of the deceased was conducted on 9.1.1994 between
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1.20 p.m. and 3.10 p.m. Dr. Venkat conducted the PM examination
and gave advance opinion that the death took place due to
hemorrhagic shock which was caused due to injuries to head.
10) Police Inspector Shaikh made entire investigation of the
case. On 9.1.1994 he visited Shahapur and he prepared the
panchanama of the spot situated near the bus stop in the presence
of panch witnesses. Blood was found on the spot. Earth sample of
earth mixed with blood was collected from the spot. Shaikh recorded
statements of many eye witnesses. He recorded supplementary
statement of the first informant on the same day. Accused Nos. 1 to
4 came to be arrested on 11.1.1994 and accused No. 5 came to be
arrested on 13.1.1994.
11) During the course of investigation, accused No. 1 gave
statement under section 27 of the Evidence Act and on the basis of
this statement, one stick, weapon was recovered. The weapon was
seized under the panchanama. Similar statements were given by
some other accused including accused No. 5 and on that basis, some
sticks, weapons were recovered and seized under the panchanama.
The clothes of the deceased having blood stains were taken over
under the panchanama. As Dr. Dagade of Shahapur Hospital had
gone to the spot where assault was made on the deceased on
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previous night, his statement also came to be recorded. The M.L.C.
prepared by Dr. Dagade in respect of examination of the deceased
and the first informant were collected by police. Articles like
aforesaid weapons, clothes of the deceased, earth mixed with blood
were sent to C.A. Office. After completion of investigation, the
charesheet came to be filed for aforesaid offences.
12) The charge was framed for aforesaid offences. As the
charge was framed only in respect of incident dated 9.1.1994 which
took place at about 7.00 a.m. near the bus stop of Shahapur and not
in respect of the incident which had taken place on previous day on
8th, the oral evidence given by the witnesses including the first
informant only on the incident dated 9.1.1994 which took place at
7.00 a.m. as the direct evidence can be considered. However, in
view of the submissions made for the appellants, the evidence given
by both the doctors needs to be considered.
13) Before Trial Court, all the accused pleaded not guilty. In
all nine witnesses were examined by the prosecution. The accused
took the defence of total denial. On the basis of direct and
circumstantial evidence, Trial Court has convicted all the appellants
and sentence of imprisonment for life is given.
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14) The main witness of prosecution is Yellappa Savle (PW
2), first informant. He has given evidence on the dispute, motive
and also on the incident which had taken place on 8.1.1994 and also
on the incident in question which took place on 9.1.1994. His
evidence does not show that in the incident of previous night in
which beating was given to the first informant and the deceased,
any weapon was used by any of the accused. The first informant has
deposed that after the incident of previous night, he and the
deceased had gone to Dr. Dagade of PHC Shahapur and after giving
primary treatment, Dr. Dagade had given letter of reference to them
and they were expected to go to Degloor Hospital. Here only it needs
to be mentioned that such reference letter is not produced.
15) The first informant (PW 2) has deposed that on the next
day, he and the deceased wanted to go to Degloor for receiving
treatment and also for giving report to police in respect of incident of
previous night. He has deposed that on 9.1.1994, early in the
morning, when he and the deceased were sitting under the Neem
tree which was standing near the bus stop, all the accused came
there and gave them beating. Much was argued by the learned
counsel for the appellants on the circumstance that first the
deceased had left for bus stop as per the version of first informant
and after some time, the first informant had followed him to the bus
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stop. Though the evidence of such nature given by the first
informant (PW 2) is there, the first informant has stuck to his
version that at the time of incident he was present as he had already
reached the bus stop.
16) The first informant (PW 2) has given evidence that all
the accused came there with sticks. He has deposed that accused
No. 5 gave first blow of stick on the head of the deceased and
second blow on the head of the deceased was given by accused No.
1. The first informant (PW 2) has given vague evidence that all the
accused then assaulted the deceased with sticks on his back, legs
etc. He has deposed that when he tried to intervene in the incident,
to save the deceased, accused No. 1 gave blow of stick on his head
and accused No. 5 also assaulted on his leg by using stick. He has
deposed that many persons gathered at the spot, but only Vithal
Basatwar had made request to the accused persons not to give
beating to the deceased by saying that they were giving beating to
the deceased by treating him like an animal. The first informant (PW
2) has taken the name of one more witness like Parvatabai by saying
that she had tried to offer water to the deceased, but the deceased
could not drink it. The first informant (PW 2) has given evidence that
he and his other son viz. Saibu then took the deceased in bus to
Degloor. He has deposed that from Degloor bus stop, they took the
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deceased in auto-rickshaw to the hospital. He has deposed that
when they reached the campus of Degloor Hospital, they helped the
deceased to come out of auto-rickshaw, but after coming out of the
auto-rickshaw, the deceased had a hiccup and he breathed last in
the campus of Degloor Hospital. He has deposed that the death took
place at about 9.00 to 10.00 a.m.
17) Prosecution has examined one more eye witness
Manappa (PW 5). When his examination in chief was recorded, he
avoided to give evidence and so, with the permission of the Court
the learned APP cross examined this witness. In the examination in
chief, he tried to say that incident was over when he reached the
spot. In the cross examination, he admitted his presence over the
spot at the time of assault, but he gave vague evidence that all the
accused assaulted the deceased and the first informant near the bus
stop by using sticks. Though this evidence is vague and this witness
has admitted in cross examination that for some time, he was
working as a labour with first informant, there is no reason to
disbelieve this witness. There is circumstantial evidence also to give
check to the evidence of first informant and this witness.
18) Khanderao (PW 1), panch witness on inquest
panchanama turned hostile. He is resident of Bhaktapur, Tahsil
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Degloor. He, however, admitted his signature appearing on inquest
panchanama and in cross examination, he has stated that he had
come to Degloor Hospital for some other work and there, his
signature was obtained by the Investigating Officer. Shaikh (PW 9),
Investigating Officer has given evidence on the preparation of
inquest panchanama as he had prepared the panchanama. The said
panchanama is proved as Exh. 80.
19) The inquest panchanama at Exh. 80 shows that from
some portion of the head of the deceased hairs were already
removed and it can be said that some hairs were removed to make
the injuries visible on the head. The panchanama shows that blood
was coming out through left ear and it had cumulated in the left ear.
Similarly blood was present in the nostrils. There was blood almost
at every injury.
20) In Exh. 80, inquest panchanama, the injuries which were
found on the head are described as 'Y' shaped injuries. Through one
such injury, even brain matter was visible. Two clear bleeding
injuries were noticed on the head portion and one injury like swelling
was also found on the head portion.
21) The inquest panchanama was prepared between 11.00
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a.m. and 11.45 a.m. of 9.1.1994 in Degloor Hospital and it was
prepared in the Crime No. 9/1994. Thus, the F.I.R. was recorded first
and then the inquest panchanama was prepared. There was
underwear on the dead body. The papers show that the remaining
clothes of the deceased were taken over under separate
panchanama by police on the same day.
22) The oral evidence of first informant (PW 2) and also the
evidence of Dr. Dagade (PW 8) shows that deceased had sustained
injuries in the incident which had taken place on the previous night,
on 8.1.1994 at about 11.30 p.m. also. The charge is framed for the
last incident which took place on 9.1.1994 at about 7.00 a.m. near
the bus stop. In view of such evidence, the learned counsel for
appellants submitted that it is not possible for the prosecution to say
that the death took place due to so called injuries caused at about
7.00 a.m. on 9.1.1994 near bus stop. In view of such submission
and the circumstances, the medical evidence of both the doctors viz.
who conducted PM examination (Dr. Venkat) and Dr. Dagade, who
had examined deceased at 2.00 a.m. of 9.1.1994 needs to be
considered together and compared.
23) Dr. Dagade (PW 8) has given evidence that on 9.1.1994
at about 2-00 hours the deceased and the first informant came to
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him to PHC and he gave them treatment. He has given evidence that
he had reported the matter to police as it was medico legal case. But
no such record is produced. When he gave evidence that he has
brought original M.L.C. register to the Court. According to him, he
found following injuries on the person of deceased :-
"(i) C.L.W. - 1"x1/4"x1/2" - on head right temporal
region.
(ii) C.L.W. - 1"x1/2"x1/2" - on head right temporal
region.
(iii) C.L.W. - 1/2"x1/2"x1/2" - on right index finger
(iv) Abrasion - 1½"x 3¼th" - superficial left forehand.
(v) Abrasion - 1/4" x 1/2" - superficial on left fore-hand.
(vi) Contusion 1" x 1" - left fore hand
(vii) Abrasion 2"x3/4th" - superficial right forehand.
(viii) Abrasion - 1/2"x1/2" - superficial on right forehand.
(ix) Contusion - 2" x 1/2" - on right arm near elbow.
(x) Contusion - 1" x 1/2" - on left forearm near elbow.
(xi) Abrasion - 1"x3/4th - superficial on left near knee.
(xii) Contusion - 1"x1/2" - on left leg near knee.
(xiii) Abrasion - 1/2"x1/2" - on left leg near knee.
(xiv) Contusion - 1"x1/2" - on left leg paputeal region.
(xv) Contusion - 6" x 1" - on back right scapular region.
(xvi) Contusion - 6"x1" - on back right scapular region.
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(xvii) Contusion - 8"x1" - on back left thorasic region.
(xviii)Abrasion - 3/4th" x 1/2" - superficial on back medial
lumber region.
(xix) Contusion - 1/4"x1/4" - near injury no. 18.
(xx) Contusion - 1"x1/2" - on chest left side.
Age of all injuries was within six hours whereas their
nature was simple and might have been caused by hard
and blunt or irregular object."
The aforesaid description of injuries which were found on the person
of the deceased shows that there were two C.L.Ws. over head, but
they were on right temporal region. These injuries are described as
simple and caused by hard and blunt object. It is true that the first
informant has not given evidence that on the previous night any
weapon was used against them. As the death took place due to the
head injuries, the two injuries [injury Nos (i) and (ii)] found on the
head of the deceased by Dr. Dagade (PW 8) need to be kept in mind
while considering the evidence of Dr. Venkat (PW 4).
24) In the cross examination of Dr. Dagade (PW 8), it is
brought on record that the M.L.C. register which was brought by him
to the Court shows no page numbers and it was not in tabular form.
It can be said that the said register was not properly maintained, but
it is not suggested to him that it was not regularly maintained. The
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evidence shows that police collected the M.L.C. on 24.1.1994 when
the entry in the register was taken on the night between 8.1.1994
and 9.1.1994. It needs to be kept in mind that in the F.I.R. itself, the
first informant (PW 2) had mentioned that on the previous night,
they had approached Dr. Dagade and they had received treatment of
Dr. Dagade. The evidence, however, shows that they had walked up
to PHC for receiving treatment.
25) In the cross examination of Dr. Dagade (PW 8), it is
suggested by the defence that the injuries which were found on the
person of deceased can be caused due to simple fall from running
tractor or trolley. This suggestion is admitted. The evidence shows
that they were simple injuries and the defence has not disputed that
those injuries were simple injuries. M.L.C. at Exh. 76 prepared by Dr.
Dagade is consistent with his oral evidence, though it is not that
consistent with the evidence of first informant (PW 2). To Dr.
Dagade, the defence has suggested that the deceased had not
sustained any injury in the incident of previous night and he created
false record of injuries. This suggestion is, however, denied.
26) Dr. Venkat (PW 4) has given evidence that he found in all
15 surface wounds on the dead body of Hanmanlu. The injuries are
described as follows :-
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"(i) Contusion over back medial to left scapula, obliquely
running downwards and laterally, 11 x 2 cms.
(ii) Contusion over back, over right scapular area,
oblique 9 x 1.5 cm.
(iii) Contusions over back in between two scapular region,
oblique, one overlapping upon another 15 x 4 cms.
(iv) Contusion over back, lumbar region, oblique, crossing
from one side to other, 9 x 1.5 cms.
(v) Abrasion over back, right side near to L2 spine,
horizontal, 1 x 0.5 cm.
(vi) Abrasion below fifth injury, vertical 1 x 1.5 cm.
(vii) Contusion over left shoulder, laterally, horizontal 8 x
2 cm.
(viii) Abrasion over left forearm, extensor side, middle
1/3rd, verticle, 3 x 1 cm.
(ix) Abrasion below 8th injury, verticle 1 x .5 cm.
(x) Abrasion over pulp of tip of left index finger 2 x 1 cm.
(xi) Abrasion over right forearm, lower 1/3rd, flexor side,
oblique, radial side, 3 x 5 cm.
(xii) Abrasion with contusion over shin of tibia right lower
1/3rd 2 x .5 cm., Diffused contusion (dressed wound).
(xiii) CLW over left parietal area, extending medial and
anterior to left parietal eminance, diffused contusion,
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surrounding by lacerted wound, 4 x 1 cm. (deep to bone),
oblique.
(xiv) CLW over left parietal area, 3 cm medial to left
parietal eminance, 'L' shape width 2 cm deep to bone,
defused contusion around lacerated wound.
(xv) Contusion over left parietal eminence and left
temporal bone, diffused.
Scbutaneous tissue of all contusions having blood
stains and clotts present, muscles stained with blood.
Injuries were simple and probably caused by hard and
blunt object. All injuries were antimortem."
27) Dr. Venkat (PW 4) has given evidence on internal injuries
noticed by him on the dead body as follows :-
"(i) On skull I noticed fissured fracture from left parietal
eminance upto midline 6 cms grievous in nature.
(ii) Fissure fracture base of skull, left side sphenoid bone,
4 cm,horizontal, and torn of left middle meningal artery,
grievous and dangerous to life,
(iii) There was extradural haemeerhage present left side
and 300 gram clott present."
28) Dr. Venkat (PW 4) has given evidence that the internal
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injuries corresponds to surface wound Nos. 13 and 14, which were
on the head portion. He has given evidence that these injures are
sufficient in ordinary course of nature to cause death. Immediately
after conducting PM examination, he gave advance opinion which is
called as short opinion. The advance opinion is proved as Exh. 62
and the PM report is proved as Exh. 63. These documents are
consistent with the oral evidence of Dr. Venkat (PW 4).
29) If the evidence of Dr. Dagade (PW 8) is compared with
the evidence of Dr. Venkat (PW 4) along with record created by
them, it can be said that there are some inconsistencies so far as
the injuries described by them are concerned. When Dr. Dagade (PW
8) found as many as 20 surface wounds, though simple in nature on
the person of Hanmanlu, Dr. Venkat (PW 4) found 15 injuries on the
dead body. The evidence of Dr. Venkat, however, shows that some
injuries like contusions over scapular region were overlapping each
other. Dr. Venkat (PW 4) noticed fissured fractures of bones of skull
at two places. These fracture injuries which were caused by external
injury Nos. 13 and 14 proved to be fatal. They were found on left
side of head and they were having description as already quoted. It
can be said that the injuries on head which were noticed by Dr.
Dagade (PW 8) on the previous night were not noticed by Dr. Venkat
(PW 4) when he conducted PM examination. On the contrary, it can
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be said that Dr. Dagade did not notice the injuries which proved to
be fatal and which are noted by Dr. Venkat. In view of the nature of
injuries and description given, it can be said that if they were there,
Dr. Dagade would have noticed those injuries on previous night. Due
to these inconsistencies, it becomes duty of the Court to ascertain as
to which injuries actually caused the death and when those fatal
injuries were inflicted. In any case, the aforesaid evidence is
sufficient to infer that it is homicide.
30) To ascertain the time of death is not that difficult in the
present matter in view of the medical evidence given by the
prosecution. Dr. Venkat (PW 4), who prepared PM report has
mentioned that rigor mortis development had not started. He started
conducting the PM examination on 9.1.1994 at 1.20 p.m. The
evidence of Dr. Venkat shows that rigor mortis starts development
after about 2-3 hours of the death. If Dr. Dagade is believed, it can
be said that at about 2.00 a.m. of 9.1.1994 when deceased walked
up to his PHC, the deceased was alive. Considering the period
required for starting of development of rigor mortis, the period for
which the rigor mortis remains on the body and the period after the
death when rigor mortis cannot be seen on the dead body, it is not
possible that the death had taken place prior to 7-00 a.m. This
circumstance is consistent with the case of prosecution that the fatal
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injuries were caused to the deceased at about 7.00 a.m.
31) In view of the nature of direct and circumstantial
evidence, it does not look probable that the death had taken place
already and the dead body was taken to Degloor Hospital by first
informant and his other son. Though nobody like Conductor or Driver
of bus are examined, there is no reason to disbelieve the evidence of
the first informant in respect of his version that he and his other son
had helped the deceased to board the bus and they had together
gone to Degloor Hospital. If the death had taken place prior to 7.00
a.m. in view of the evidence given by Dr. Venkat, he would have
noticed the development of rigor mortis atleast to some extent on
dead body, but this did not happen. There are many other
circumstances which are consistent with the case of prosecution that
the deceased was assaulted near bus stop of Shahapur at about
7.00 a.m. on 9.1.1994.
32) Dr. Venkat (PW 2) is cross examined on the point of age
of injuries mentioned by him in column No. 17. These injuries are
already quoted. Dr. Venkat has deposed that ordinarily the age of
injury is not mentioned in the PM report and he has mentioned that
all these injuries were anti-mortem in nature. Doctor could have
been cross examined by putting some questions with regard to other
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symptoms like development or forming of puss or scab or other
symptoms developed after sustaining injuries like colour of the
injury etc. In PM report, the injuries are not described that way. The
evidence, however, shows that there was blood at almost every
injury though there was coagulation of blood. In PM report, there is
opinion given on the basis of contents of food material found in
digestive system by mentioning the period passed after taking last
meal. But, no substantive evidence is brought on the record from Dr.
Venkat on the basis of this circumstance.
33) The aforesaid discussion shows that no probability is
created that the fatal injuries described above were sustained prior
to the incident in question. Thus, the oral evidence of first informant
(PW 2) cannot be said to be inconsistent with the medical evidence,
PM report so far as fatal injuries are concerned.
34) The direct evidence of first informant (PW 2) to some
extent is inconsistent with the evidence given by Dr. Dagade (PW 8)
and M.L.C. prepared by him, which is at Exh. 76. The first informant
(PW 2) was not referred for medical examination on 9.1.1994 even
when he had made contention in the F.I.R. that he was also
assaulted by the accused persons in the incident in question. This
circumstance was argued for the appellants to submit that there is
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no circumstantial check to the evidence of first informant. Further,
the M.L.C. which is at Exh. 76 and which was prepared by Dr.
Dagade is not consistent with the PM report at Exh. 63 as already
discussed and that inconsistency is limited to the injuries not noticed
by Dr. Venkat (PW 4) on head of deceased. At Exh. 77, the M.L.C. in
respect of first informant is produced and proved and it shows that
he sustained injuries in the incident which had taken place on
previous night. This circumstance can be considered in support of
the case of prosecution as it is the version of the first informant that
he and the deceased were proceeding to Degloor to give report in
respect of the incident which had taken place on the previous night.
35) The relevant portions of evidence of first informant (PW
2) and of Mannappa (PW 5) are already quoted. The evidence of first
informant (PW 2) is mainly against accused Nos. 1 and 5. He has
given evidence that they gave blows of sticks on head of the
deceased. The evidence of Dr. Venkat (PW 4) shows that the injuries
found on the head of deceased proved to be fatal. The cross
examination of first informant (PW 2) made in respect of the
evidence given by him on incident of previous night need not be
considered to much extent and that part can be considered only to
test the veracity of the witness. It was submitted for the appellants
that no record is produced to show that the deceased had really
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given report in respect of the incident which had taken place at 5.00
p.m. on 8.1.1994 and so, the first informant cannot be believed.
This submission cannot be accepted as the deceased had left home
by saying so and whether the deceased had really given the report
or not, was not within the personal knowledge of the first informant.
36) The first informant (PW 2) is cross examined on the
evidence given by him on the incident in question. In the evidence,
he has stated that around 100 persons had gathered there when the
incident took place. It is true that only Manappa (PW 5) is examined
by the prosecution and no other eye witnesses, including the two
persons who are named in the F.I.R. are examined by prosecution.
Manappa (PW 5) has admitted in his cross examination that in the
past, he was working as a labour with the first informant. Due to this
circumstance, it was submitted for appellants that there is no
independent evidence with the prosecution. Though there are
aforesaid circumstances, only due to these circumstances the
evidence cannot be discarded. It is the duty of the Court to see as to
whether there is corroboration of circumstances to the evidence of
interested witnesses due to which they can be believed.
37) In the cross examination of first informant (PW 2), it is
suggested to him that in the incident of previous night father of the
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accused persons was assaulted and report was given against the
first informant and the deceased by the side of accused due to the
said incident. It is also suggested that the case was filed against
them in respect of that incident. These suggestions are indirectly
admitted by the first informant (PW 2) by giving evidence that they
were acquitted in that case. This circumstance can actually help the
prosecution as it gives one more circumstance on motive against the
accused. The other contention about motive is already mentioned.
38) Shaikh (PW 9), Investigating Officer, has given evidence
on spot panchanama. This evidence corroborates the version of first
informant. The blood was found on the spot. There is also evidence
of Manappa (PW 5) on spot panchanama, Exh. 65. The evidence
shows that in the vicinity of the spot, where blood was found, there
were three trees though they were not Neem trees. This spot was
shown by Saibu, brother of deceased. The evidence is given by the
first informant that Saibu had given him company when deceased
was taken to Degloor and the deceased was taken from this spot.
39) By examining some panch witnesses and the
Investigating Officer, the prosecution has given evidence on the
statements given mainly by accused Nos. 1 and 5 under section 27
of the Evidence Act on 17.1.1994. The prosecution has given
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evidence that those statements led to discovery of weapons, sticks.
Those panchanamas are proved in the evidence of Investigating
Officer. The panch witnesses have not supported the prosecution,
they have turned hostile. This evidence shows that all the sticks are
shown to be recovered from the vicinity of the house of father-in-law
of one of the accused. The documents are at Exhs. 81 to 89. It is
already mentioned that accused Nos. 1 to 4 were arrested on
11.1.1994 and accused No. 5 was arrested on 13.1.1994. The
recovery is shown to be made on 17.1.1994. Thus, the recovery was
late. There is no support of independent witnesses to this evidence.
The clothes of accused No. 5 are also shown to be taken over from
accused No. 5, but for that there is no statement under section 27 of
Evidence Act. The C.A. reports are produced to show that the blood
group of deceased was 'O' and the blood of same group was
detected on the sticks. Due to aforesaid circumstances, this Court
holds that the circumstantial evidence like recovery of weapons from
the accused persons is not that satisfactory and these circumstances
are not established to the satisfaction of the Court. However,
absence of such evidence cannot go to the root of matter as there is
direct evidence to which there is corroboration of other
circumstances.
40) Argument was advanced on one more circumstance by
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the learned counsel for the appellants. He submitted that the first
informant (PW 2) had described the weapons as sticks cut on
machine, they were not round in shape. The seizure panchanama
shows that the sticks seized are round in shape and they do not
appear to be cut on machine. It can be said that this circumstance is
against the evidence given on recovery of weapons, but this cannot
be treated as circumstance inconsistent with the oral evidence. In
the present matter, there are many circumstances creating doubt
about the investigation and creating probability that attempt was not
made to bring the truth on record. This circumstance cannot come in
the way of prosecution and it cannot create reasonable doubt about
the evidence of first informant. Unfortunately, due to seizure of
aforesaid sticks, suggestion was not given to the doctor who
conducted PM examination as to whether machine cut sticks can
cause such injuries.
41) The aforesaid discussion shows that the investigating
agency was not acting under the influence of complainant. The first
informant was definitely not favoured. The Investigating Officer in
ordinary course ought to have referred the first informant (PW 2) for
medical examination, but that was not done. The record of medical
examination created by Dr. Dagade was collected late and in respect
of that material, there are the circumstances which are already
Cri. Appeal No. 232/2001
discussed. The things were not in the hands of first informant (PW
2). This Court has done the necessary scrutiny of the evidence given
by the two doctors and on that basis, this Court has no hesitation to
hold that the injuries which caused the death were inflicted in the
incident in question. That is most important point in the present
matter. Suspicious circumstances are separable as mentioned above.
Thus the accused Nos. 1 and 5 caused the death is the truth.
42) On the basis of contents of F.I.R. and the medical record,
the Trial Court could have framed charge in such a way that charge
includes the incident of assault made on deceased on the previous
night and also the assault made in the incident shown in the present
charge. Whenever there are such two consecutive assaults on the
same person, may be at different times and at different places, but
within short span of time and injuries are inflicted in both the
incidents, it is always desirable to frame the charge which includes
both the incidents as both the incidents can be treated as the part of
the same transaction as provided in section 223 of Criminal
Procedure Code ('Cr.P.C.' for short).
43) In the present matter, the charge was framed only in
respect of incident which took place near bus stop at 7.00 a.m. on
9.1.1994 and there was no charge in respect of the incident which
Cri. Appeal No. 232/2001
had taken place on previous night. The discussion on the vital
injuries which caused the death and the time when they were
inflicted is already made. The other injuries which were found on the
hands, scapula were like abrasions and contusions. Most of these
injuries were noted by Dr. Dagade (PW 8) at 2.00 a.m. Thus, the PM
report prepared by Dr. Venkat (PW 4) and the M.L.C. prepared by Dr.
Dagade create a probability that other injuries which were not vital
were caused in the incident of previous night. There is also
possibility that in addition to fatal injuries, some more injuries were
caused to the deceased in the incident in question. But in view of
nature of oral evidence which is vague as against accused Nos. 2 to
4, the probability which is created in favour of these accused needs
to be accepted. Due to these circumstances, this Court holds that
the benefit of doubt needs to be given to accused Nos. 2 to 4.
44) The incident in question took place in the year 1994 and
so, after 20 years of the date of incident, it is not desirable to take
steps to see that the charge is again framed in respect of the
incident of previous night also as mentioned above. Due to absence
of the charge in respect of incident of previous night, the prejudice
is certainly caused to accused Nos. 2 to 4. The provision of section
212 of Cr.P.C. shows that it is right of the accused to know the
offence and for that, the time, place and person need to be
Cri. Appeal No. 232/2001
mentioned in the charge.
45) The learned APP submitted that in view of the
relationship of the accused inter-se and as they had the common
motive and as direct evidence is given that they had come together
to the spot of offence with sticks, the provision of section 149 of IPC
can be used to convict accused Nos. 2 to 4 also. This submission
cannot be accepted. The direct evidence shows that the evidence is
specific as against accused Nos. 1 and 5. The direct evidence further
shows that accused Nos. 1 and 5 also assaulted on other parts of the
body of the deceased. Further, due to nature of weapons used, the
motive described and the number of incidents which took place, it is
not possible to infer that there was common object to finish the
deceased. Due to these circumstances also, it is not possible to hold
accused Nos. 2 to 4 guilty by using the provision of section 149 of
IPC. The aforesaid circumstances have created a probability that
accused Nos. 2 to 4 had not taken part in the incident in question
and the injuries found on the other parts of the body of the
deceased were inflicted in the incident of previous night. Due to
these circumstances, the submission of the learned APP cannot be
accepted and the benefit of doubt needs to be given to accused Nos.
2 to 4. Similarly, due to absence of medical evidence with regard to
the injuries sustained by first informant in incident in question, it is
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not possible to give conviction for the offence punishable under
section 324 r/w. 149 of IPC.
46) The question arises as to what offence committed by
accused Nos. 1 and 5. The evidence of first informant (PW 2) shows
that in the incident in question, accused No. 1 gave only one blow of
stick on the head of deceased and accused No. 5 only gave one blow
of stick on the head of deceased. If the M.L.C. prepared by Dr.
Dagade (PW 8), Exh. 76, is compared with the PM report, at Exh.
63, for this purpose, it can be said that the C.L.Ws. (injury Nos. 13
and 14 from PM report, column No. 17) were found over left parietal
region and one contusion injury No. 15 was found over left temporal
region. As already observed, two simple injuries were found as per
Exh. 76 when Dr. Dagade has examined the deceased. Dr. Venkat
has referred surface wound Nos. 13 and 14 as fatal injuries. Injury
No. 15 was also not mentioned in Exh. 76 prepared by Dr. Dagade.
But, the first informant (PW 2) has given evidence in respect of only
two injuries inflicted on head of the deceased. Injury No. 15 did not
cause death, but injury Nos. 13 and 14 cumulatively caused the
death. Accused Nos. 1 and 5 are real brothers inter-se, had common
motive and both of them had given blows of sticks on the head and
so, the common intention can be inferred against them as provided
in section 34 of IPC. Thus, the provision of section 149 of IPC cannot
Cri. Appeal No. 232/2001
be used, but provision of section 34 of IPC can be used against
accused Nos. 1 and 5.
47) As already observed, the accused had become angry due
to the assault made on their father and that was motive for them.
They used the weapons like sticks, the weapons which were readily
available for them. The injuries were found not only on the head
portion, but also on other parts of the body of the deceased. These
circumstances can be considered for the purpose of ascertaining the
offence which is committed. It can be said that the accused persons
had no intention to cause the death, but they knew that they were
likely to cause death by making such assault. Similarly, there was no
intention to cause the fatal injuries which would be sufficient in
ordinary course of nature to cause death and such intention also
cannot be inferred. Thus, at the most, the provision of section 304
Part II of IPC can be used against accused Nos. 1 and 5.
48) The charge was framed for offence punishable under
section 302 r/w. 149 of IPC. Though the provision of section 34 of
IPC was not used, in view of the evidence discussed, inference of
constructive liability and presence of common intention as defined
under section 34 of IPC is possible and it is necessary. Even in
appeal, use of section 34 of IPC is possible and conviction given by
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using section 34 of IPC to accused Nos. 1 and 5 will not become
illegal. (Reliance placed on cases reported as 1973 SUPREME
COURT 460 [Garib Singh and Ors. Vs. The State of Punjab]
and AIR 1958 SC 672 [B.N. Srikantiah Vs. State of Mysore]).
49) The learned counsel for appellants placed reliance on the
following reported cases :-
(i) AIR 1993 SUPREME COURT 1462 [Anil
Phukan Vs. State of Assam],
(ii) AIR 1994 SUPREME COURT 549 [State of
Punjab and Gurmej Singh Vs. Jit Singh and
Ors.],
(iii) AIR 1994 SUPREME COURT 1250 [Patel
Chela Vikram Vs. State of Gujarat],
(iv) 1994 CRI.L.J. 18 [State of Karnataka Vs.
Babu and Ors.],
(v) 1994 CRI.L.J. 21 [Joseph Vs. State of
Kerala],
(vi) 1997 CRI.L.J. 1788 [Narayan Kanu
Datavale and Ors. Vs. State of Maharashtra]
(vii) 2010 CRI.L.J. 920 [Hari Kishan Vs. State
of Haryana].
Some cases are on appreciation of evidence. Some cases are to
support the proposition that the stick cannot be called as dangerous
weapon. Some cases are on appreciation of evidence of sole eye
witness and appreciation of evidence of interested witnesses. The
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facts and circumstances of each and every case are always different.
The relevant facts of the present matter are already discussed by
this Court. The propositions made in these cases cannot be disputed.
50) The aforesaid discussion shows that the Trial Court has
committed error in convicting accused Nos. 2 and 3. Accused No. 4
is dead and so, this Court is not making observations in respect of
accused No. 4. Thus, the conviction given to them and sentence
given as against them needs to be set aside. Similarly, the conviction
given as against accused Nos. 1 and 5 needs to be modified to hold
them guilty for offences punishable under sections 304 Part II of IPC
r/w. 34 of IPC as there was no unlawful assembly. They cannot be
convicted for offence punishable under sections 147 and 148 of IPC
and that part of the decision also needs to be set aside.
51) The learned counsel for appellant No. 5 produced on
record some decisions of the Apex Court reported as LAW(SC)
-2015-3-85 [Panna Lal and Ors. Vs. State of M.P.], 2013 (4)
Bom.C.R. (Cri.) 56 (SUPREME COURT) [Ketankumar Gopalbhai
Tandel Vs. State of Gujarat] and 2008 CRI.L.J. 1038 SUPREME
COURT [Babban Rai and Anr. Vs. State of Bihar]. Reliance was
also placed on the judgment delivered by this Court in Criminal
Application No. 1816/2014 filed in Criminal Appeal No.
Cri. Appeal No. 232/2001
290/2013 [Ratnadeep s/o. Jalba Dhawale Vs. The State of
Maharashtra]. It is already mentioned that the learned Member,
Magistrate of Juvenile Justice Board constituted under the Juvenile
Justice Act, 2000 has given finding that at the relevant time,
appellant No. 5, original accused No. 5 was juvenile, he had not
completed 16 years of age. In the cases cited supra for accused No.
5, the Apex Court and this Court has laid down that such persons
are entitled to benefit of protection of the Act of 2000. As the
appellant No. 5 is no more juvenile, he would not be sent to remand
home also. However, he needs to be dealt with under the provisions
of this special Enactment and so, the matter as against accused No.
5/appellant No. 5 needs to be sent to Juvenile Justice Board of
Nanded for disposal of the case in accordance with the provisions of
the Act of 2000. In the result, following order.
ORDER
(I) The appeal of appellant Nos. 2 and 3 is allowed. The
judgment and order of Trial Court, convicting and sentencing them
for the offences punishable under sections 302 r/w. 149 of IPC, 324
r/w. 149 of IPC and also for the offences punishable under sections
147 and 148 of IPC is set aside. Fine amount already deposited by
these accused is to be refunded to them. Their bail bonds are to
continue for the period of three months from today for giving
opportunity to the State to challenge the decision of this Court.
Cri. Appeal No. 232/2001
(II) The appeal of Accused No. 1 - Gundya s/o. Yellappa
Arote and Accused No. 5 - Yellappa s/o. Yellappa Arote is partly
allowed. The conviction and sentence given to them for the offences
punishable under sections 302 r/w. 149 of IPC, 324 r/w. 149 of IPC
and also for the offences punishable under sections 147 and 148 of
IPC is set aside. Accused No. 1 - Gundya s/o. Yellappa Arote and
Accused No. 5 - Yellappa s/o. Yellappa Arote stand convicted for the
offence punishable under section 304 Part II of IPC r/w. section 34
of IPC. Accused No. 1 is sentenced to suffer rigorous imprisonment
for three years and to pay fine of Rs.1,000/- (Rupees one thousand).
In default of payment of fine, accused No. 1 is to further undergo
rigorous imprisonment for one month. He was behind the bars for
few months and he is entitled to get set off of that period in
substantive sentence. Accused No. 1 is to surrender to his bail bonds
for undergoing sentence.
(III) In stead of sentencing accused No. 5 for aforesaid
offences, he is given benefit of provisions of Juvenile Justice (Care
and Protection of Children) Act, 2000 and Rules framed thereunder.
His case is to be sent to Juvenile Justice Board, Nanded for dealing
the matter against him in accordance with the provisions of
aforesaid special Enactment.
Cri. Appeal No. 232/2001
(IV) Appellant No. 5 is to appear before the aforesaid forum
on 26.10.2017.
[S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
