The State Of Mah vs [email protected] Vithal Kapse ...
2018 Latest Caselaw 855 Bom

                                                         Cri. Appeal No.54/2006
                                      (( 1 ))


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.54 OF 2006



 The State of Maharashtra,
 through Shrigonda Police Station,
 District Ahmednagar                             ...   APPELLANT
                                                 (Original Complainant)
          VERSUS

 1.       Prabhakar @ Prakash Vithal Kapse,
          Age 49 years,

 2.       Shashikala Prabhakar @ Prakash Vithal Kapse,
          Age 42 years,

 3.       Suhas @ Pinu Prabhakar @ Prakash Vithal Kapse,
          Age 19 years

 4.       Sandip @ Bandu Prabhakar @ Prakash Vithal
          Age 22 years

          All R/o Pargaon Sudrik Shivar,
          Tq. Shrigonda, Dist. Ahmednagar. ...   RESPONDENTS
                                           (Original Accused)


                                 .....
 Shri M.M. Nerlikar, A.P.P. for appellant/ State
 Shri R.G. Hange, Advocate for respondents
                                 .....

                                 CORAM:     T.V. NALAWADE AND
                                            SUNIL K. KOTWAL, JJ.

                  Date of reserving judgment : 12th January, 2018.
                  Date of pronouncing judgment : 24th January, 2018.

 JUDGMENT (PER SUNIL K. KOTWAL, J.) :

1. By filing this appeal, State of Maharashtra has

Cri. Appeal No.54/2006 (( 2 ))

challenged the judgment and order passed by Additional Sessions

Judge, Ambajogai in Sessions Case No.94/2004, wherein accused

Nos.1, 2, 4 and 5 were acquitted of the offence punishable under

Section 302 read with Section 149, Sections 504 read with

Section 149, Section 143, 147 and 148 of the Indian Penal Code.

State has also challenged the correctness of conviction of

accused Nos.1 and 4 only for the offence punishable under

Section 323 of the Indian Penal Code. Respondents are original

accused Nos.1, 2, 4 and 5.

2. Facts leading to institution of this appeal are that,

accused and complainant as well as all witnesses are the

residents of village Pargaon Sudrik Shivar, Taluka Shrigonda,

District Ahmednagar. Informant Chandrabhagabai Labde (P.W.1)

is the wife of deceased Bhaguji Labde. At the relevant time of

the occurrence, deceased used to work as labour at Kukdi

irrigation Department, used to come from Pargaon to Karjat. On

2.4.2004 at about 11.00 a.m., informant Chandrabhagabai and

her son Sachin (P.W.6) went to their field, known by local name

"Dara". Deceased Bhaguji also accompanied them. The land of

the accused is adjacent to the land of the deceased. At that

relevant time, even the accused persons were also working in

their field. Chandrabhagabai Labde (P.W.1) noticed that at about

11.30 a.m., accused were cutting one common tree standing on

Cri. Appeal No.54/2006 (( 3 ))

the common boundary of their field and they were also removing

stones from that common boundary. When Chandrabhagabai

objected this act, by that time, even Bhaguji reached on the spot

and asked his wife Chandrabhagabai not to talk with the accused.

However, the accused No.3 suddenly started abusing the

deceased Bhaguji, made him fall on the ground, sat on his chest

and started assaulting him on his chest by stone. That time,

accused No.1 Prakash was armed with iron bar, accused No.4

Subhash was armed with stick and accused No.5 Sandip was

armed with axe. They started assaulting Bhaguji by their

respective weapons on the head, back and hand of the deceased

Bhaguji. Chandrabhagabai (P.W.1) started shouting and

requested the accused not to beat her husband. When she tried

to intervene, that time accused No.2 Shashikala pulled her hair,

fell her on ground and started beating her by means of fist blows

and kicks. Hearing the noise of commotion, even Sandip Labde

(P.W.6) rushed on the spot and he tried to rescue the deceased,

but he was assaulted by sticks and stones on his back by the

accused. By that time, deceased Bhaguji became unconscious.

Therefore, Chandrabhagabai (P.W.1) rushed towards the houses

of her relatives and hearing her shouts, her relatives Nilesh

Madke (P.W.5) and Ramdas Hirve reached on the spot of the

incident. They took the injured Bhaguji by motorcycle initially to

Pargaon and thereafter to Shrigonda Rural Hospital. Doctor

Cri. Appeal No.54/2006 (( 4 ))

examined the deceased and declared him dead. On the same

day, Chandrabhagabai (P.W.1) lodged report to Police Station,

Shrigonda (Exh.24). Head Constable Kolhe (P.W.8) registered

Crime No.77/2004 against the accused persons for the offence

punishable under Sections 143, 147, 148, 302 read with Section

149, Section 323 read with Section 149, Section 504 read with

Section 34 of the Indian Penal Code. P.S.I. Girme (P.W.9)

conducted investigation of the crime. He referred the dead body

of the deceased for post mortem. Dr. Baban Thaval (P.W.2)

performed autopsy examination of the dead body on 2.4.2004

and issued post mortem notes (Exh.36). Investigating Officer

(P.W.9) prepared spot panchanama (Exh.39) and seized one

blood stained flint stone, blood stained PVC plastic pipe, two

blood stained sticks from the spot. After arrest of the accused

Nos.1 and 2, he seized their clothes under seizure panchanama

(Exh.45) on 2.4.2004. Subsequently, other accused were

arrested. On their medical examination, their blood samples

were collected. All seized muddemal and vicera together with

blood samples were referred to Chemical Analyser, Aurangabad.

After completion of the investigation, charge sheet was filed in

the Court of Judicial Magistrate, First Class, Shrigonda.

3. Offence punishable under Section 302 of the Indian

Penal Code being exclusively triable by Court of Sessions, this

Cri. Appeal No.54/2006 (( 5 ))

case was committed to Sessions Court, Ahmednagar.

4. Charge (Exh.14) was framed against accused Nos.1

to 5 for commission of the offences punishable under Sections

143, 147, 148, 302 read with Section 149 of the Indian Penal

Code, in the alternate, under Section 302 read with Section 34,

Section 323 read with Section 149, Section 504 read with Section

149 of the Indian Penal Code. Accused pleaded not guilty and

claimed trial.

5. Defence of the accused was of total denial. Defence

examined A.S.I. Shivaji Nagare (D.W.1) and Dr. Patil (D.W.2).

6. After considering the evidence of total 9 prosecution

witnesses and two defence witnesses, learned trial Court pleased

to convict the accused Nos.1 and 4 for the offence punishable

under Section 323 of the Indian Penal Code and they were

sentenced to suffer rigorous imprisonment for one year and to

pay fine of Rs.1000/- each. Accused Nos.1 to 5 were acquitted

of the offences punishable under Sections 143, 147, 148, 302

read with Section 149, Section 504 read with Section 149 of the

Indian Penal Code. Accused No.3 died during pendency of the

trial and proceeding against him was abated.

Cri. Appeal No.54/2006 (( 6 ))

7. At the outset, we must note that, accused Nos.1 and

4 who were convicted by the trial Court for the offence

punishable under Section 323 of the Indian Penal Code for

voluntarily causing simple hurt to deceased Bhaguji, have not

challenged the judgment of their conviction.

8. State has challenged the conviction of accused Nos.1

and 4 simply under Section 323 of the Indian Penal Code and

prayed for modification of their conviction into Section 302 read

with Section 34 of the Indian Penal Code. Even clean acquittal of

respondent Nos.2 and 4, who are original accused Nos.2 and 5, is

challenged by the State. Therefore, initially we will consider

whether conviction and sentence imposed by trial Court against

accused Nos.1 and 4 under Section 323 of the Indian Penal Code

is just and proper or it needs certain modification.

9. Learned A.P.P. for the State submitted that, though

learned trial Court held that deceased Bhaguji Labde died of

homicidal death, while convicting the accused No.1 and 4,

learned trial Court erroneously convicted the accused Nos.1 and

4 for the offence punishable under Section 323 of the Indian

Penal Code. According to learned A.P.P., when deceased was

assaulted by accused Nos.1 and 4 by deadly weapons like iron

bar and stick respectively and though fatal injury was caused on

Cri. Appeal No.54/2006 (( 7 ))

the head of deceased, which resulted into his death, learned trial

Court erroneously held that, possibility of sustaining brain injury

by the deceased is probable due to fall over stony and rocky

surface. He submits that, panch witness Tukaram (P.W.3) and

investigating officer P.W.9 have duly proved the preparation of

spot panchanama (Exh.39) and seizure of blood stained flint and

two blood stained sticks from the spot. Learned trial Court

erroneously held that the spot of the occurrence is in front of the

house of the accused which is rocky and stony surface.

10. Learned A.P.P. submits that, when Medical Officer

(P.W.2) has duly proved that the injury No.3 contusion together

with haematoma over parieto occipital region, compressing

underlying brain matter is sufficient to cause death in ordinary

course of the nature, the conviction of the accused Nos.1 and 4

simply under Section 323 of the Indian Penal Code is absolutely

incorrect. He submits that, when accused Nos.1 and 4 have

inflicted iron bar and stick blow with force on the head of the

deceased, it is established that, at least accused Nos.1 and 4 had

knowledge that due to their act, the deceased may sustain injury

which is sufficient in ordinary course of nature to cause his death.

He prayed for conviction of accused Nos.1 and 4 at least under

Section 304 of the Indian Penal Code. He placed reliance on the

case of Masati : Munga Ram, Bhagwati, Chandan Sinali,

Cri. Appeal No.54/2006 (( 8 ))

Laxmi Prasad Vs. State of Uttar Pradesh reported in

1965(1) Cri.L.J. 226.

11. In reply, learned Advocate for the respondents

submits that, the testimony of informant Chandrabhagabai

(P.W.1) and Sandip Labde (P.W.6) is not trustworthy on account

of material contradictions and omissions emerging in their

evidence before the Court. He points out that, from the recitals

of F.I.R., it becomes clear that the so called eye witness Nilesh

(P.W.5) reached on the spot when the incident of assault to

deceased was over and, therefore, evidence of Nilesh (P.W.5) is

not useful to establish the occurrence of incident.

12. Next limb of the argument of learned counsel for the

respondents is that, though Chandrabhagabai (P.W.1) deposes

that one Bore tree was totally cut and cutting of second tree was

in progress when the incident occurred, spot panchanama does

not show cut or partly cut tree standing on the spot. He also

points out that, though Chandrabhagabai (P.W.1) and Sandip

(P.W.6) claim to be eye witnesses, they have not sustained any

injury during the entire occurrence.

13. Learned counsel for the respondents points out that,

two blood stained sticks and one PVC pipe were recovered from

Cri. Appeal No.54/2006 (( 9 ))

the spot. However, none of the prosecution witness has

whispered regarding use of PVC pipe at the time of occurrence.

He submits that there was no premeditation to assault the

deceased and other witnesses by accused, because as per

prosecution case itself the incident occurred in the spur of

moment when quarrel arose on account of cutting of trees

standing on boundary line bandh of the land of accused and land

of deceased. No evidence is available to establish which accused

inflicted the fatal blow which resulted into death of deceased.

14. Next submission of learned defence counsel is that,

by examining Head Constable Shivaji (D.W.1) the defence has

proved counter F.I.R. Exh.83 as well as spot panchanama to

prove that the incident occurred in front of the house of the

accused and not in the field of deceased.

15. Last objection of learned counsel for the accused is

that, the injury sustained by accused which are proved by

Medical Officer (P.W.2) are not explained by the prosecution. He

placed reliance on State of Maharashtra Vs. Dipak Patil and

others reported in 2017 Cri.L.J. 819, Laxmisingh & ors. Vs.

State of Bihar reported in (1976 4 SCC 394) and Mahadeo

Vaidya Vs. State of Maharashtra reported in 2001 Cri.L.J.

4306 (Bom.) and Puran Vs. State of Rajasthan reported in

Cri. Appeal No.54/2006 (( 10 ))

AIR 1976 SC 912.

16. In the case at hand, though accused Nos.1 to 5 were

charged under Sections 143, 147, 148 of the Indian Penal Code

and under Sections 302 read with 149, 504 read with 149, 323

read with 149 of the Indian Penal Code, heavy burden lies on the

prosecution to first establish that at the time of occurrence

accused Nos.1 to 5 were members of "unlawful assembly" within

meaning of Section 141 of the Indian Penal Code. The

expression "unlawful assembly" defined in Section 141 of the

Indian Penal Code requires that there should be assembly of five

or more persons having the "common object" of the persons

comprising that assembly to use criminal force or to commit

mischief or criminal trespass or other offence etc. However, in

the case at hand, as per prosecution case itself, the deceased

and his family members as well as even the accused persons

assembled in their respective landed property on 2.4.2004 for

performing agricultural work in their respective lands. The

incident of assault to the deceased Bhaguji occurred only on

account of cutting of trees standing on the boundary line bandh

of respective land of accused and land of deceased. Thus,

undisputedly, the incident occurred in a spur of moment due to

sudden quarrel which arose in between these two families on

account of cutting of common tree. It means that, there was no

Cri. Appeal No.54/2006 (( 11 ))

premeditation in between the accused to cause assault to the

deceased or to any other witnesses. In other words, accused

Nos.1 to 5 had no "common object" to assault the deceased at

the time of occurrence. Therefore, in absence of the important

ingredient i.e. "common object", the assembly of the accused

Nos.1 to 5 at the time of occurrence cannot be termed as

unlawful assembly. As per the prosecution case itself, the

incident occurred due to sudden quarrel in between these two

family members. Therefore, obviously, Section 149 of the Indian

Penal Code will not be attracted. In Puran Vs. State of

Rajasthan (cited supra), it is ruled that, in a case of sudden

mutual fight between the two parties, there can be no question of

invoking the aid of Section 149 for the purpose of imposing

constructive criminal liability on an accused. In view of above

observation, no case is made out against accused Nos.1 to 5 for

the offence punishable under Sections 143, 147, 148 of the

Indian Penal Code.

17. About the occurrence, prosecution case is totally

based on direct evidence of Chandrabhagabai (P.W.1), her son

Sandip Labde (P.W.6) and testimony of Nilesh Madake (P.W.5).

One additional witness Balasaheb Mote (P.W.7) is also examined

by the prosecution. However, this witness has turned hostile and

nothing could be elicited in his cross-examination which is helpful

Cri. Appeal No.54/2006 (( 12 ))

to the prosecution.

18. As rightly pointed out by learned counsel for the

respondents, as per oral testimony of Chandrabhagabai (P.W.1)

and recitals of the F.I.R. (Exh.27), initially Nilesh Madake (P.W.5)

was not present on the spot of the incident, but only

Chandrabhagabai (P.W.1) and her husband Bhaguji (deceased)

were present in the field of Bhaguji. Nilesh Madake (P.W.5)

reached on the spot only when the incident of assault to Bhaguji

at the hands of accused was over. From the evidence of

Chandrabhagabai (P.W.1), it emerges that, after assault to

Bhaguji Labde (deceased), he became unconscious. Thereafter,

Chandrabhagabai (P.W.1) shouted and called her relatives and

thereafter Nilesh Madake (P.W.5) and Ramdas Hirve reached on

the spot. Therefore, the learned trial Court rightly discarded the

oral evidence of Nilesh Madake (P.W.5) on the ground that he is

not eye witness of the incident.

19. In the circumstances, only oral testimony of

Chandrabhagabai (P.W.1) and Sandip Labde (P.W.6) is available

on record to prove the occurrence. Learned defence counsel has

assailed the evidence of these both witnesses on the ground that

they being close relatives of the deceased as wife and son, they

are interested witnesses and their testimony cannot be believed

Cri. Appeal No.54/2006 (( 13 ))

without corroboration by independent witnesses. He points out

that, from the cross-examination of Chandrabhagabai (P.W.1),

which has brought on record that Vikas Kapse also came to the

spot on hearing commotion. However, prosecution has not

examined independent witness Vikas Kapse.

20. The Hon'ble Apex Court, in case of Manga Vs. State

of Uttarakhand reported in (2013) 7 SCC 629, held that, it is

the quality of witness that matters and not the quantity. When

related witness was examined and found credible, in such a case,

non examination of independent witness would not be fatal to the

prosecution case. Therefore, if the testimony of Chandrabhagabai

(P.W.1) and Sandip Labde (P.W.6) passes the test of close

scrutiny, their evidence can be relied upon to base the

conviction.

21. Chandrabhagabai (P.W.1) categorically stated before

the Court that, on the date of the incident at about 11.30 a.m.,

when accused started cutting trees from common boundary, she

objected and that time her husband Bhaguji (deceased) advised

her not to talk with the accused persons. According to

Chandrabhagabai (P.W.1), thereafter accused No.3 Vijay made

her husband Bhaguji to fall on the ground, sat on his chest and

started assaulting by stone on his chest. According to

Cri. Appeal No.54/2006 (( 14 ))

Chandrabhagabai (P.W.1), accused No.1 Prabhakar inflicted iron

bar blow on the head and shoulder of deceased Bhaguji and

accused No.5 assaulted deceased by axe. When

Chandrabhagabai (P.W.1) tried to intervene, that time accused

No.2 Shashikala assaulted her by fist and kicks. Hearing shouts

of Chandrabhagabai (P.W.1), her son Sandip (P.W.6) reached on

the spot and he was assaulted by accused No.4 by stick. Even

Sandip (P.W.6) fully corroborated version of Chandrabhagabai

(P.W.1) by deposing that on the date and time of the occurrence

after hearing commotion and shouts, he rushed on the spot and

witnessed the occurrence. Sandip (P.W.6) deposed that, accused

No.1 assaulted deceased by iron bar and accused No.4 assaulted

deceased by stick. Accused No.5 Sandip assaulted deceased by

axe. According to Sandip (P.W.6), when he tried to intervene,

that time he was assaulted by accused No.4 by stick. When

injured Bhaguji was taken to hospital with the help of Nilesh

Madake and others, he was declared dead by Dr. Baban Thaval

(P.W.2).

22. Dr. Baban Thaval (P.W.2), when performed autopsy

examination of Bhaguji Labde, he found following external

injuries on the body of Bhaguji :-

(1) Abrasion 1" x ¼" transverse over left eye brow crust

Cri. Appeal No.54/2006 (( 15 ))

formed.

(2) CLW 5 cm. x ½ cm. x scalp deep on left side parietal

region, oblique in direction, margins irregular, deeply

stained.

(3) Contusion 2 " diameter over top of head, colour

reddish.

(4) C.L.W. ¾" x ¼" x scalp deep, vertical 2" diameter over

top of head, colour reddish.

(5) Abrasion 2" x ¼" oblique above left nipple crust

formed.

23. Dr. Thawal (P.W.2) also found following internal

injuries on head of deceased :

"Subdural haematoma over parieto occipital region 4

½" diameter and 1 ½" thickness. Compressing underlying brain

matter colour reddish."

24. According to Dr. Baban Thaval (P.W.2), external

Injury No.3 i.e. contusion corresponds to above internal injury

and it was sufficient to cause death in ordinary course of nature.

Dr. Baban (P.W.2) opined that, the cause of death was due to

shock due to subdural haemmorhage. He also opined that,

above injury No.3 contusion and corresponding internal injury is

Cri. Appeal No.54/2006 (( 16 ))

possible due to forceful stick blow and iron bar. He also opined

that, injury Nos.2 and 4 i.e. contused lacerated wounds are

possible due to axe.

25. However, from the cross-examination of Dr. Thaval

(P.W.2), it has come on record that, the axe is sharp edged

weapon and it causes incised wound. He has also admitted that,

the contused lacerated wound may be caused due to hard and

blunt object. It is to be noted that, though defence counsel tried

hard, Dr. Thaval (P.W.2) is firm on his opinion that injury No.3

i.e. contusion with corresponding subdural haematoma and

subdural haemmorhage is not possible due to fall as the place of

this injury is on the top of the head.

26. It is to be noted that, though learned defence counsel

has placed reliance on minor variance in between oral testimony

of Chandrabhagabai (P.W.1) and recitals of the F.I.R., after

careful perusal of her testimony, we are fully satisfied that the

discrepancies emerging in the evidence of Chandrabhagabai

(P.W.1) are very minor and do not shake her basic version.

Therefore, over much importance cannot be given to those

discrepancies. Surprising thing is that, in the cross-examination

of Chandrabhagabai (P.W.1), the defence has brought on record

that, accused No.1 Prakash had inflicted iron bar blow on the

Cri. Appeal No.54/2006 (( 17 ))

shoulder and head of the deceased Bhaguji (para 9 of the cross-

examination). Defence has tried to bring on record that this

version of Chandrabhagabai (P.W.1) is omission. However, after

going through F.I.R. Exh.27, it becomes clear that,

Chandrabhagabai Labde (P.W.1) has specifically mentioned in her

F.I.R. that accused No.1 inflicted iron bar blow and accused No.4

inflicted stick blow on the head, chest and hand of deceased

Bhaguji. Therefore, we find that, the above statement of

Chandrabhagabai (P.W.1) is not omission. She is absolutely

truthful witness and her evidence regarding assault to Bhaguji by

accused No.1 and 4 by iron bar and stick is corroborated by

medical evidence. Her presence on the spot is natural and even

not disputed by defence in her cross-examination. Learned

defence counsel pointed out that, Chandrabhagabai (P.W.1)

cannot give explanation for the injuries to the accused.

However, it cannot be ignored that Chandrabhagabai (P.W.1) is

illiterate witness and the incident of assault occurred in very fast

sequence as everything was over within five minutes. In the

circumstances, an illiterate lady like Chandrabhagabai (P.W.1) is

not expected to even recollect the minor injuries sustained by

accused No.1, 3 and 4. Even the injury to accused No.5 is

fracture, which cannot be located by open eyes. Such silence of

Chandrabhagabai (P.W.1) regarding injuries on the person of

accused cannot be viewed with suspicion. We, therefore, hold

Cri. Appeal No.54/2006 (( 18 ))

that, conviction of the accused Nos.1 and 4 can be safely based

on even sole testimony of Chandrabhagabai (P.W.1). Even in the

case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrath

reported in (AIR 1983 Supreme Court 753), the Apex Court

ruled that :-

"Overmuch importance cannot be attached to minor discrepancies emerged in the testimony of prosecution witnesses. The reasons are obvious :-

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which taken place in

Cri. Appeal No.54/2006 (( 19 ))

rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment".

27. Even testimony of Sandip (P.W.6) is free from

material infirmity. Only in his cross-examination defence has

tried to bring on record slight exaggeration. However, Sandip

Labde (P.W.6) being son of the deceased, slight exaggeration

regarding number of blows inflicted by accused is natural. So

also, it cannot be ignored that the incident occurred within a

short time in fast sequence. Therefore, in ordinary course,

nobody can exactly tell the number of blows inflicted by each and

every accused as well as the exact part of body where the

weapon blows landed. On the other hand, being son of the

deceased, even presence of Sandip (P.W.6) near the spot of

incident for grazing cattle is natural. Therefore, we do not find

material infirmity in the testimony of Sandip Labde (P.W.6) to

disbelieve his version so far as assault to deceased by accused

Nos.1 and 4.

Cri. Appeal No.54/2006 (( 20 ))

28. By examining defence witness A.S.I. Shivaji Nagare

(D.W.1), accused have proved copy of counter F.I.R. Exh.83.

However, none of the accused stepped in witness box to prove

the contents of counter F.I.R. Exh.83. Defence has only filed

copy of spot panchanama Exh.84 drawn on the basis of counter

F.I.R. i.e. Crime No.76/2004, registered on the basis of report

lodged by accused No.1 Prabhakar Kapse. However, the

contents of this spot panchanama Exh.84 are not proved by

defence by examining any panch witness or police officer who

prepared the spot panchanama. Otherwise also, the spot

panchanama Exh.84 relied by defence counsel does not show any

signs of struggle or fight to show that the incident occurred in

front of the house of the accused on stony and rocky surface.

Thus, the copy of counter F.I.R. and spot panchanama relied by

defence deserves to be ignored as not supported by any

substantial evidence.

29. On the other hand, by examining panch Tukaram

(P.W.3) and investigating officer P.S.I. Hanumant Girme (P.W.9),

prosecution has proved preparation of spot panchanama Exh.39

and seizure of blood stained flint and blood stained stick from the

spot of incident. Tukaram (P.W.3) has fully supported

preparation of spot panchanama, seizure of blood stained flint

Cri. Appeal No.54/2006 (( 21 ))

and stick from the spot. Even the Chemical Analyser's report

Exh.68 shows that, human blood of Group "B" was found on the

flint as well as on one wooden log seized from the spot and

human blood of same group was also found on the trouser and

banian of the deceased Bhaguji. In other words, blood of the

deceased was found on the spot which is situated in the field of

deceased Bhaguji and Chandrabhagabai (P.W.1). This evidence

is sufficient to hold that the above incident of assault occurred in

the field of the deceased Bhaguji and not in front of the house of

the accused as claimed by them. On the other hand, this spot

panchanama together with oral testimony of Chandrabhagabai

(P.W.1) and Sandip (P.W.6), is sufficient to hold that, at the time

of occurrence accused entered in the field of deceased Bhaguji

and assaulted him. These circumstances are sufficient to hold

that accused are the aggressors. Therefore, question of exercise

of right of private defence by accused does not arise. Under

these distinguishing circumstances, the cases State of

Maharashtra Vs. Dipak & others (cited supra) is

distinguishable on facts.

30. Though learned counsel for the respondent placed

reliance on Laxmi Singh Vs. State of Bihar (cited supra), for

the reason that injuries found on the body of accused are not

explained by the prosecution, it cannot be ignored that, in this

Cri. Appeal No.54/2006 (( 22 ))

case Hon'ble Apex Court has carved out exception to the rule

that non-examination of injuries on the body of accused persons

shall be considered as fatal to the prosecution case, by observing

that, "There may be cases where non-explanation of injuries by

prosecution may not affect prosecution case where the injuries

sustained by accused are minor and superficial or where evidence

is so clear and cogent, so independent and disinterested, so

probable, consistent and creditworthy that it is far outweighs, the

effect of the omission on the part of prosecution to explain the

injuries. In the present case, Chandrabhagabai (P.W.1) and

Sandip (P.W.6) are absolutely independent and disinterested

witnesses, who carried no personal grudge against any accused

and who had no reasons to falsely implicate the accused in the

present case. These both witnesses being near relatives of

deceased, possibility of absolving real culprit and involving

innocent persons in the present crime, is absolutely impossible.

Therefore, under these distinguishing facts before the Court, the

above cited authority is of no help to the accused to claim benefit

of doubt.

31. This spot situation falsifies the claim of the defence

that deceased Bhaguji and family members pelted stones

towards accused persons and Bhaguji lifted accused No.5 Sandip

and forcibly threw him on the ground, resulting into fracture of

Cri. Appeal No.54/2006 (( 23 ))

left arm radius ulna bone of accused No.5 Sandip. No doubt Dr.

Prabhas Patil (D.W.2) has duly proved that he operated the

fracture injury of accused No.5 Sandip Kapse on 2.4.2004.

However, it cannot be ignored that, accused No.5 may sustain

such fracture injury while scuffling with deceased Bhaguji at the

time of assault. Other injuries sustained by accused No.1

Prabhakar, accused No.2 Shashikala, accused No.4 Suhas are so

minor abrasions and one contused lacerated wound that over

much importance cannot be given to those injuries.

32. In view of the above discussion, we have no

hesitation to hold that, prosecution has proved beyond

reasonable doubt that on the date and time of the incident,

accused Nos.1 and 4 assaulted deceased Bhaguji by iron bar and

stick blow and caused fatal head injury and other injuries to the

deceased. Learned trial Court convicted the accused Nos.1 and 4

only under Section 323 of the Indian Penal Code, on the ground

that head injury sustained by deceased Bhaguji is possible due to

fall over rocky and stony land at the time of occurrence.

However, from the spot panchanama Exh.39, it becomes clear

that, the spot of the incident is in the field of deceased Bhaguji

which is not stony and rocky land. So also, Dr. Thaval (P.W.2)

has specifically denied the suggestion that contusion on the top

of the head of the deceased together with corresponding internal

Cri. Appeal No.54/2006 (( 24 ))

injury is possible due to fall on the ground. This Medical Officer

(P.W.2) is very firm that injury No.3 to the deceased being on

the top of the head, is not possible due to fall on the ground.

Thus, inference drawn by the trial Court regarding sustaining

head injury by deceased due to fall on rocky surface is totally

against situation on the spot and medical opinion given by Dr.

Thaval (P.W.2). We have no hesitation to hold that the finding

given by learned trial Court that deceased Bhaguji probably

sustained head injury due to fall on the rocky surface is

absolutely perverse. The view taken by the trial Court while

convicting the accused Nos.1 and 4 simply under Section 323 of

the Indian Penal Code is perverse and impossible view and needs

interference by this Court.

33. In view of above discussion, prosecution has proved

beyond reasonable doubt that, on the date and time of incident,

accused Nos.1 and 4 were armed with iron bar and stick

respectively and they inflicted iron bar and stick blow on the

head of deceased Bhaguji and thereby caused his homicidal

death.

34. In Mahesh & another Vs. State of Madhya

Pradesh reported in [2012 (1) Mh.L.J. (Cri.) 294], the

Hon'ble Apex Court observed that :

Cri. Appeal No.54/2006 (( 25 ))

"20. Section 34 of the Indian Penal Code provides that if two or more persons intentionally do an act jointly, the position in law would be just the same as if each of them has done the offence individually by himself. This doctrine of constructive criminal liability is well-established in law."

35. In view of this legal position, when prosecution has

proved that on the date and time of the occurrence accused

Nos.1 and 4 entered in the field of deceased Bhaguji and by

inflicting iron bar blow and stick blow on the head of deceased

Bhaguji, caused his homicidal death, choosing of weapons like

iron bar and stick and inflicting its blows on the head of deceased

by accused Nos.1 and 4 is sufficient to hold that they shared

common intention to assault the deceased on fatal part of his

body. Therefore, conclusion can be drawn that accused Nos.1

and 4, in furtherance of their common intention, inflicted iron bar

and stick blow on the head of deceased at least with the

knowledge that it is likely to cause death of the deceased.

However, as there was no previous premeditation or enmity in

between the parties and as the incident occurred in spur of

moment, it cannot be said that accused had intention to kill the

deceased Bhaguji. Therefore, the accused Nos.1 and 4 deserve

to be convicted only for the offence punishable under Section 304

Cri. Appeal No.54/2006 (( 26 ))

Part II read with Section 34 of the Indian Penal Code.

36. Accused No.3 died during the pendency of the trial

and proceedings against him is abated. Therefore, evidence

against him needs no consideration.

37. So far as accused No.2 is concerned, allegation

against her is that she had beaten Chandrabhagabai (P.W.1) by

fist and kick blows. However, testimony of Chandrabhagabai

(P.W.1) regarding assault to her by accused No.2 is not

corroborated by medical evidence. Even Sandip Labde (P.W.6)

has not supported Chandrabhagabai (P.W.1) and he nowhere

deposed that the accused No.2 had beaten Chandrabhagabai

(P.W.1) by fist and kick blows. Therefore, acquittal of accused

No.2 recorded by learned trial Court is possible view and needs

no interference.

38. So far as accused No.5 Sandip Kapse is concerned,

though Chandrabhagabai (P.W.1) and Sandip Labde (P.W.6)

deposed that he inflicted axe blow on the body of deceased

Bhaguji, from the testimony of Dr. Thaval (P.W.2), it emerges

that, no incised wound was found on the body of deceased

Bhaguji. From the cross-examination of Dr. Thaval (P.W.2), it

becomes clear that two contused lacerated wounds i.e. injury

Cri. Appeal No.54/2006 (( 27 ))

Nos.2 and 4 found on the head of deceased are possible due to

stick blow. Dr. Thaval (P.W.2) has admitted that, by axe blade

only incised wound would be caused. Therefore, benefit of doubt

goes in favour of accused No.5 Sandip. As rightly pointed out by

defence counsel, in Mahadeo & ors. Vs. State of Maharashtra

(cited supra), this Court also expressed similar view that it is

common knowledge that axes cause incised or cut injuries unless

they are used from blunt side. None of the witness deposed that

accused No.5 inflicted axe blow from its blunt side. Thus, injury

to deceased Bhaguji due to axe blow inflicted by accused No.5 is

impossible. Even assault to Sandip Labde (P.W.6) by accused

No.4 by stick blow on his back is not corroborated by medical

evidence. Therefore, taking into consideration the available

evidence against accused No.5, learned trial Court extended

benefit of doubt in his favour. The view taken by learned trial

Court regarding accused No.5 is probable view and needs no

interference.

39. In view of above discussion, prosecution has proved

beyond reasonable doubt that only accused Nos.1 and 4

(respondent Nos.1 and 3) have committed offence punishable

under Section 304 Part II read with Section 34 of the Indian

Penal Code. Considering the young age of accused No.5 Sandip,

it is desirable to show leniency while sentencing the accused. In

Cri. Appeal No.54/2006 (( 28 ))

view of overall circumstances of the case, rigorous imprisonment

for five years and fine of Rs.5000/- each is reasonable

punishment to the both convicted accused. Therefore, this

appeal deserves to be partly allowed and conviction and sentence

imposed by learned trial Court against accused Nos.1 and 4

needs to be modified as under: Hence, we pass the following

order :

ORDER

(i) The Criminal Appeal is partly allowed.

(ii) Conviction of original accused No.1 Prabhakar @

Prakash Vitthal Kapase and original accused No.4 Suhas

@ Pinu Prabhakar @ Prakash Kapse under Section 323

of the Indian Penal Code is set aside and it is modified

as under :

"The original accused No.1 Prabhakar @ Prakash

Vitthal Kapase (respondent No.1) and original accused

No.4 Suhas @ Pinu Prabhakar @ Prakash Kapse

(respondent No.3) are hereby convicted for the offence

punishable under Section 304 Part II read with Section

34 of the Indian Penal Code and they are sentenced to

suffer rigorous imprisonment for five years and to pay

fine of Rs.5000/- (Rupees five thousand) each, in

default to suffer rigorous imprisonment for six months

Cri. Appeal No.54/2006 (( 29 ))

each."

(iii) The above fine amount, if recovered, be paid to the

informant Chandrabhagabai Bhaguji Labde, Resident of

Pargaon (Madkewadi), Taluka Shrigonda, District

Ahmednagar as compensation under Section 357(1) of

the Code of Criminal Procedure, after the period of

appeal is over.

(iv) Accused No.1 Prabhakar @ Prakash Vitthal Kapase was

in jail since 2.4.2004 till 7.5.2005 and accused No.4

Suhas @ Pinu Prabhakar @ Prakash Kapse was in jail

since 7.4.2004 till 7.5.2005. They are entitled for set

off for the period undergone by them, as contemplated

under Section 428 of the Code of Criminal Procedure.

(v) The original accused No.1 Prabhakar @ Prakash Vitthal

Kapase (respondent No.1) and original accused No.4

Suhas @ Pinu Prabhakar @ Prakash Kapse (respondent

No.3) shall surrender to their bail bonds before the trial

Court immediately.

(vi) Appeal against respondent Nos.2 and 4 is dismissed.

Bail bonds of respondent Nos.2 and 4 stand cancelled.

           ( SUNIL K. KOTWAL )                        ( T.V. NALAWADE )
                JUDGE                                        JUDGE

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