Kuta S/I Gimbya Vasave And Another vs The State Of Maharashtra
2021 Latest Caselaw 1907 Bom

                                                                  908-CrApl-562-14.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                         CRIMINAL APPEAL NO. 562 OF 2014

1.        Kuta S/o Gimbya Vasave
          Age : 40 years Occu. : Agriculture
          R/o Kella-Khurd, Aagri Ghatpada
          Tq. Dhadgaon, Dist. Nandurbar.

2.        Dhirsing S/o Gimbya Vasave
          Age : 34 Years, Occu. : Agriculture
          R/o Kella-Khurd, Aagri Ghatpada
          Tq. Dhadgaon, Dist. Nandurbar.                          ... Appellants
                                                                 (Orig. Accused)

                   Versus

          The State of Maharashtra                                ... Respondent
                                       ...
            Advocate for Appellants : S/Shri C. R. Deshpande with
                                      Akshay Kulkarni & C. C. Deshpande
                APP for Respondent - State : Shri K. S. Patil
                                       ...

                                     CORAM : RAVINDRA V. GHUGE AND
                                             B. U. DEBADWAR, JJ.

DATE : 29TH JANUARY, 2021

JUDGMENT [ PER RAVINDRA V. GHUGE, J.] :-

1. By this appeal, the appellants, who are the original

accused, seek to challenge the judgment and order dated 22-08-

2014 delivered by the learned Additional Sessions Court, Shahada,

in Sessions Case No. 35 of 2012. They have been convicted for

having committed offences punishable under Section 302 read with

Section 34 of the Indian Penal Code.

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2. We have heard the strenuous submissions of the

learned advocate for the appellants and the learned prosecutor, at

length on 27-01-2021 and 28-01-2021. Since, the submissions of

the parties concluded beyond rising time on 28-01-2021, we posted

the matter today for dictating the judgment in the open Court. With

the assistance of the learned counsel, we have gone through the

appeal paper book and the record and proceedings, especially the

Marathi version of the testimony of witnesses, since we found that

the English version was a bit deceptive and, at some places, carried

a different meaning.

3. The prosecution had put up it's case before the trial

Court contending that accused No.1 Kuta S/o Gimbya Vasave and

accused No.2 Dhirsing S/o Gimbya Vasave had committed an

offence of murdering Sanya Vasave. The FIR was lodged by PW5

Smt. Bondibai Sanya Vasave, who was the wife of the deceased.

4. According to PW5, She was residing along with her

deceased husband, sons Ashish and Asma and daughter Sangita, in

their agricultural field at village Kellakhurd - Agrighatpada. Both

the accused are the nephews of the complainant and the deceased

and they were also residing in their field adjacent to the field of the

informant. A well is located in the field of the informant. Both the

accused used to utilise the water from the said well for agricultural

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and domestic purposes.

5. Due to the summer of 2012, leading to the shortage of

water, the deceased had prevented the accused from drawing water

and a feud cropped up between the two sides. On the date of the

incident 04-05-2012, the complainant claimed to be sweeping her

courtyard at about 07:00 a.m. and her deceased husband was

offering fodder to the bullocks. Both the accused are said to have

approached the deceased on the issue of sharing of the water.

Accused No.1 was carrying a spear and accused No.2 was holding

an iron rod. Both of them insisted on drawing the water from the

well and since the deceased declined to share the water, both

assaulted him. The spear used by accused No.1 caused an injury

on the left shoulder of the deceased and the iron rod blow inflicted

by accused No.1 on the forehead of the deceased, is said to have

caused his death.

6. The informant has set out in the FIR that after hearing

the screams of the deceased, she, her son Ashish, brother-in-law

Vanya and the neighbor Dilya, arrived at the spot, and are an eye-

witnesses. After seeing them at the scene of the crime, both the

accused ran away from the spot. The FIR was lodged on the same

day 04-05-2012. Both the accused are behind bars since 2012.

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7. The following witnesses were examined by the

prosecution before the trial Court :-

PW1 - Aatrya Andya Vasave - Panch Witness - turned hostile PW2 - Kalla Sheda Padavi - Panch witness - turned hostile PW3 - Akbarsha Imamsha Fakir - Panch witness of the spot panchanama.

PW4 - Vanya Bhijja Vasave - Eye witness PW5 - Bondibai Sanya Vasave - Eye witness - wife of the deceased PW6 - Deelip Dadala Vasave - Panch witness of the spot panchanama - turned hostile PW7 - Sama Devji Vasave - panch witness - turned hostile PW8 - Ashish Sanya Vasave - Son of the deceased PW9 - Shankar Garbad Shirole - Investigating Officer PW10 - Dr. Onkar Chamarya Valavi - Doctor who conducted postmortem on the dead body.

8. On the basis of the oral and documentary evidence, the

trial Court convicted both the accused for having committed an

offence punishable under Section 302 read with Section 34 of the

IPC and awarded the sentence of imprisonment for life along with

fine.

9. The learned counsel for the appellants has strenuously

submitted that the hostile witnesses have weakened the case of the

prosecution. The three eye witnesses, who claim to be such, are

improbable eye-witnesses and were actually not at the spot where

the crime was allegedly committed by the accused. Four witnesses

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have turned hostile and the trial Court has awarded the conviction

on the basis of the testimonies of three improbable eye witness and

are interested witnesses being closely related to the deceased.

10. He further submits that though the Regional Forensic

Science Laboratory has submitted it's report, the blood found on the

soil sample, clothes, baniyan of the deceased, towel, underpant and

half t-shirt, could not be determined as belonging to any blood

group, except the towel and the underpant used by the deceased

which exhibited blood group AB. The blood group test on the

remaining items was inconclusive. Merely because it was revealed

that the blood found on the articles at Exhibits 1, 2, 4, 7 and 11

was human blood, does not advance the case of the prosecution.

11. The learned advocate for the appellants has read out

the testimonies of the witnesses, threadbare. It is contended that

the statement of PW4, who is the brother of the victim, renders no

assistance, since he has wrongly mentioned the date of incident as

03-05-2012. This witness has introduced a new version of the neck

of the deceased having been pressed, fist blows having been

inflicted and the deceased having been assaulted on his stomach.

12. He places reliances upon the following judgments :

a) Parvat Singh and others vs. State of Madhya Pradesh [(2020) 4 SCC 33]

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b) Raj Kumar Singh Vs. State of Rajasthan [AIR 2013 SC 3150]

c) Manoj Kumar and others Vs. State of Himachal Pradesh [AIR 2018 SC 2693]

d) Mihir Gope and others Vs. State of Jharkhand, decided by the Hon'ble Apex Court on 08-01-2021.

         e)     Yogesh Singh Vs. Mahabeer Singh
                [2016 AIR (SC) 5160]

13. It is submitted that both the accused have put up a

version through cross examination of the prosecution witnesses that

the deceased had suffered a head injury in the recent past and

considering the inquest panchanama and the deposition of the

doctor, PW10, in paragraph No.3, that a person may die of internal

hemorrhage suffered two to three days prior to the incident at

issue, the deceased has died on account of an old injury and the

two accused have been implicated by the complainant and her

relatives to seek revenge.

14. As an alternative to the submission put forth above, the

learned counsel for the appellants prays that if this Court concludes

that both the accused have committed offences which they are

charged with, the offence committed by accused No.1 can be

converted into an offence under Section 324 in view of Mihir Gope

and Others (supra) and the offence committed by accused No.2 can

be converted into Section 304 Part-II in view of Manoj Kumar and

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Others (supra).

15. The learned prosecutor has strenuously supported the

impugned judgment. He contends that merely because the three

eye witnesses are related to the informant PW5, it would not mean

that their testimony should be discarded. They are natural

witnesses. The spot panchanama would indicate the topography.

The huts of these eye witnesses are at a close distance from the

spot of the crime and merely because they are related to the

deceased, would not mean that the conviction handed down by the

trial Court, cannot be sustained as there is no independent witness.

16. He submits that PW4, PW5 and PW8 are eye witnesses.

Each one of them has deposed stating that accused No.1 inflicted a

spear injury on the left shoulder of the deceased and accused No.2

inflicted an iron rod injury on the forehead of the deceased. Each

one of them has seen the event with their own eyes. Their houses

are close to each other. Close relatives reside in such houses.

17. He then submits that the prosecution witnesses were

examined after about 21 months of the incident. Law prohibits the

witnesses from meeting the prosecutor or the I.O. prior to stepping

into the witness box. Minor discrepancies in their versions need to

be overlooked. Both the accused had planned the attacked and

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therefore, they had arrived at the scene, armed with weapons. If

they had no intention of harming the deceased, and if the alleged

incident had occurred in the heat of the moment, they would not

have carried a rod and a spear along with them. The accused did

not choose to lead evidence or even examine themselves. No

explanation, as regards the carrying of deadly weapons, is

forthcoming from the accused. The doctor has opined on the basis

of the postmortem report (Exhibit-52) that the deceased had

suffered a spear injury on his left shoulder and a life threatening

injury on his forehead with the iron rod. The injury caused by the

iron rod is opined to have caused the death of the husband of PW5

and therefore, neither Section 304 Part-II nor Section 324 of the

IPC would be attracted in this case.

WHETHER THE DEATH OF SANYA WAS HOMICIDAL

18. The postmortem report at Exhibit-52 indicates that a

corpse was brought by police constable, for the purpose of

postmortem, to the Rural Hospital, Dhadgaon. It was sent by PSI,

Dhadgaon Police Station. The corpse were identified by the

informant PW5, who was the wife of the deceased. The FIR was

registered on 04-05-2012 at 10.05 a.m. The postmortem was

conducted in between 04:15 p.m. to 05:15 p.m. Rigor mortis had

slightly developed. There was no sign of decomposition. Both the

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eyes were semi-opened. The tongue was inside the mouth and ENT

bleeding was present.

19. The injuries set out at clause 17 of the postmortem

report, read as under:-

"A) C.L.W. over right parietal region of head, size 5 cm x 2 cm, margin irregular, with blood clot. B) C.L.W. over left shoulder joint near lateral end of clavicle bone, size 3 cm x bone deep, with margin irregular, Edges deeply stared, blood clot formation C) Abrasion over right back of shoulder joint."

20. The postmortem report indicates that the injuries were

ante-mortem. Haematoma was present under the scalp and

corresponding brain area. In view of the injuries mentioned above,

the probable cause of death in the opinion of the autopsy surgeon

was "due to head injury".

21. PW10, the autopsy surgeon, has deposed by narrating

the internal and external injuries that were found on the body of

the deceased. All the injuries were said to be caused within 24

hours, with the use of a hard, blunt and sharp object. He stated

that all the injuries were ante-mortem and he reiterated the cause

of death being on account of the head injury. In cross examination,

he denied that the external injuries at Sr. Nos. 1 to 3, reproduced

above, were old injuries. He admitted that the injury at Sr. No.2

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(B) suffers overwriting. We have perused the same, which indicates

that it was earlier written as Rt shoulder joint, which means the

right shoulder joint, and by a correction duly initialed by the

autopsy surgeon, it was corrected as Lt meaning Left. In our view,

nothing turns on this aspect, because it is consistently deposed by

the eye witnesses as well as by the autopsy surgeon that the spear

injury was inflicted on the left shoulder joint near the lateral end of

the clavicle bone. It was a deep injury.

22. The learned counsel for appellant has strenuously

contended that there is no evidence with regard to injury 'C' which

is as abrasion over the right back of the shoulder joint. In our view,

nothing turns on this issue, since no questions have been put forth

by the defence as regards this abrasion. It is established by

evidence that the deceased had fallen to the ground after suffering

the injuries and the rough ground surface may have caused the

abrasion which was not the reason for death of the deceased.

23. PW10 has clearly established that the injury 'A' could be

possibly caused by an iron rod - Article-B shown to him and the

injury 'B' can be possible caused by a spear - Article-A. The

learned counsel for the appellants has vehemently contended that

as the doctor has opined that a person could die because of internal

hemorrhage (in the brain area) on account of an injury suffered two

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to three days prior to the death, would indicate that the deceased

had suffered a head injury earlier and his death cannot be

attributed to the injury inflicted on his forehead. In the absence of

any evidence to establish a previous injury, we cannot rely upon

conjectures and surmises that the deceased may have suffered an

injury to his brain / skull in the recent past.

24. Considering the above, we find that the victim Sanya

has suffered a homicidal death.

WHETHER THE ACCUSED ASSAULTED THE DECEASED

25. PW4 is the younger brother of the deceased. He was

brushing his teeth in front of his house at 07:00 a.m. He has stated

that the incident occurred on 03-05-2012, which is being sought to

be capitalised by the accused contending that the testimony of the

said witness needs to be discarded as he contends the occurrence

of the incident on 03-05-2012 and the prosecution has charged the

accused of having committed an offence on 04-05-2012. Taking

into account the total evidence before us, we are of the view that

the said wrong date has been mentioned out of inadvertence.

26. We have considered the testimony of PW4 in the light of

the spot panchanama Exhibit-22 dated 04-05-2012, which has a

specific sketch map on internal page II-4. His house and the house

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of the deceased, as well as, the house of the accused are said to be

adjacent to each other. The defence has contended that, on the

one hand, the place at which the body of the deceased was located,

is about 300 ft. away from the house of the deceased and

therefore, PW4 had no chance of witnessing the accused assaulting

the deceased. PW4 has contended that a bullock belonging to the

deceased had strayed upto the house of the first accused. The

deceased went towards the said house to bring back the bullock

and at that time, both the accused started following the deceased,

who was subsequently assaulted by accused No.1 with a spear and

by accused No.2 with an iron rod. Having suffered an injury on his

left shoulder and forehead, the deceased fell to the ground.

Accused No.1 pressed his neck with his hands and accused No.2

inflicted fist blows on his stomach. PW5 and PW8 have also

witnessed the said assault along with son of PW4 namely Ratilal

Vanya. Ratilal is not examined.

27. In his cross examination, PW4 denied of being in the

State of Gujarat, when the incident occurred. He admitted that the

well is about 300 ft. from his house and the house of accused No.1

is about 200 ft. to 300 ft. from the house of the deceased. He

denied that accused No.2 was not present in village Kellakhurd as

he resides in another village. In so far as the bullock part of the

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testimony is concerned, PW4 stated that he does not know why his

version about the bullock part is not set out in his statement under

Section 161 of Cr.P.C., though he had told the police about the

same. However, in our view, since this part was not confronted to

the I.O. PW9 and no explanation was sought for the omission of the

bullock part from such statement under Section 161, we are unable

to read that part of the testimony of PW4. However, PW4 has

specifically stated in paragraph No.3 of his deposition that accused

No.1 was trying to draw water forcibly from the well and a dispute

had erupted between him and the deceased which led to the attack

on the deceased.

28. We also find that the version of PW4, to the extent of

pressing the throat of the deceased and inflicting a blow on his

stomach, was also not set out in his statement under Section 161

and this omission was neither confronted to PW4, nor to the I.O.

PW9. This part of the version is, therefore, not available to us to be

considered as a substantive piece of evidence.

29. PW5 is the wife of the deceased. She has stated in her

testimony that they owned a pair of bullocks who were being used

for plowing the field. One of the two bullocks had loitered in front

of the house of accused No.1, who was brought back by the

deceased. Both the accused followed him with a spear and an iron

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rod, which were used by the said accused to inflict blows, viz. by

the spear on the left shoulder and by the iron rod on the forehead

of the deceased. Deceased Sanya fell to the ground and is said to

have died at that spot itself. Since Sanya screamed on the assault,

she, PW4 and PW8 rushed out and saw the two accused assaulting

the deceased. After the accused ran away from the spot, she went

to the concerned police station and lodged the FIR which is at

Exhibit-30. She identified the spear Article-A and the rod Article-B.

30. The learned counsel for the appellant has pointed out

that the FIR did not disclose the bullock part of the version.

However, as PW5 contended in cross examination that this part of

her version was narrated to the police, it was inevitable for the

defence to have confronted the I.O. as to the reasons for his

omission in mentioning that part in the FIR, in view of the law laid

down by the Hon'ble Apex Court, (Three Judges Bench) in V. K.

Mishra and another Vs. State of Uttarakhand and another WITH

Rahul Mishra Vs. State of Uttarakhand and another [AIR 2015

Supreme Court 3043]. The Hon'ble Apex Court has held in

paragraph No.18 as under :-

"18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the

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writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction."

31. PW8 is the son of the deceased who was about 17 years

of age. Both the accused were his cousin brothers. He was taking

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education in 2012 and had returned to his native village Kellakhurd

due to the summer vacation. His father owned eight acres of

agricultural land and a well was situated in the said field. He

deposed that his two cousin brothers, i.e the two accused, were

permitted to fetch water from their well. Since, in the summer of

2012 the water level had depleted, that his father had restrained

the two accused from drawing water, and this caused a feud

between them.

32. He has further stated that one of the bullock had

strayed towards the house of accused No.1 and was fetched by the

deceased. Accused No.1 followed him with a spear and gave a blow

on his left shoulder. Accused No.2 carried an iron rod and inflicted

a wound on his forehead. PW8 was standing on the platform in

front of his house and saw his father being assaulted, who collapsed

to the ground. PW8 and PW4 rushed to the spot, by which time his

father was bleeding and died. PW8 had brought the police Patil to

the spot, who advised them to lodge an FIR in the police station.

33. In cross examination, he denied that the villagers also

used to fetch water from the same well. The house of accused No.1

was at a distance of about 24 Meters from his house and accused

No.2 was residing in village Velkhedi near Toranmal. He and his

uncle PW4 had gone to Gujarat in search of a job and they had

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returned a day prior to the date on which the incident occurred. In

paragraph No.6, he has narrated the topography and the location of

the houses. PW4 and PW5 were in their houses, when the incident

occurred. A question was put to him in cross examination that his

father had not walked upto the house of accused No.1 to bring the

bullock back and that both the accused had not assaulted him. He

had denied the said suggestions, and further also denied the

suggestion that his father was attacked about four to five days ago,

by an unidentified person and he had suffered severe injuries in

that assault. He reiterated that both the accused had assaulted his

father on account of his refusal to let them draw water from in well

in summer.

34. PW9 is the investigating officer who has dealt with the

contents of the FIR. He narrated the manner in which the

investigation was handed over to him, his visit to village Kellakhurd

and the preparation of the spot panchanama. A spear was found

lying at the spot which was seized by him. Sample of blood mixed

earth and simple earth was collected by him, a rough sketch map

was prepared and the spot panchanama Exhibit-22 bears his

signature and the signature of two panchas. He identified the spear

Article-A, the inquest panchanama Exhibit-23 and the two arrest

panchanamas Exhibit- 45 and 46. He then stated that, on

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10-05-2012, accused No.2, while in custody, agreed to discover the

iron rod by which the deceased had suffered a homicidal death. A

memorandum panchanama was prepared under Section 27 of the

Evidence Act, in the presence of two panchas, which is at Exhibit-

47. He identified his signature, the signatures of the two panchas

and the thumb impression of accused No.2. He then narrated the

manner in which accused No.2 led the police and the panchas to his

house in Agri Ghatpada locality. They all traveled by the police

Jeep. Accused No.2 entered his house and took out an iron rod

from beneath the roof and produced it before PW9. The iron rod

was seized and a seizure panchanama was drawn. Exhibit-48 was

identified to be the seizure panchanama, bearing the signature of

the I.O., the two panchas and the thumb impression of accused

No.2. The iron rod is Article-B.

35. Thereafter, the clothes worn by accused No.2, were

seized with the aid of another seizure panchanama. The colour of

the shirt, Article-C, the colour of the towel, Article-D and the

seizure panchanama Exhibit-49 along with his signature and the

signature of the panch, were identified by PW9.

36. Thereafter, a further seizure panchanama Exhibit-50

was prepared, when the clothes of accused No.1 were seized. The

seizure panchanam is Exhibit-50 and PW9 identified his signature

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and the signatures of the two panchas. The description of the shirt

and the pant was stated and he identified Articles E and F,

respectively.

37. In cross examination, PW9 supported the seizure

panchanama, the articles seized, the spot inspection and the

inquest panchanama. He contended that the inquest panchanama

Exhibit-23 was prepared on the basis of what he had seen and as

the injuries appeared to him. He denied all the suggestions as

regards there being no seizure, there being no spot panchanama,

there being a false inquest panchanama or that the deceased had

died because of an old injury or that he had conducted a false

investigation and presented a false charge-sheet in the Court.

38. The thrust of the appellant's case is primarily on two

grounds. Firstly, that the three eye witnesses are interested

witnesses and their testimonies cannot be relied upon, in the

absence of an independent witness. Secondly, the appellants have

relied upon the testimonies of hostile witnesses to support the

contention that there was no seizure panchanama and there was no

seizure of the spear, the iron rod, the clothes, etc. It is strenuously

canvased that PW1, PW2, PW3, PW6 and PW7 have turned hostile.

It is, therefore, canvased that once the seizure is dispute, the entire

case of the prosecution collapses.

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39. In a judgment delivered by this Court in the matter of

Saraswati w/o Ganpat Landge Vs. State of Maharashtra in Criminal

Appeal No. 40 of 2015, delivered on 19-01-2021, while placing

reliance upon the judgment of the Hon'ble Apex Court in State

through PS Lodhi Colony, New Delhi Vs. Sanjeev Nanda [(2012 8

SCC 450], this Court has dealt with the menace of such panch

witnesses turning hostile. The Hon'ble Apex Court has come down

heavily with regard to such hostile witnesses, who act as panch

witnesses. It is at the time of deposing before the Court, after

about a year or two from the date of the crime, that they turn

hostile. No doubt, we find that the learned prosecutor in the case

before the trial Court could have conducted a better and probing

cross examination by confronting the panch witnesses as regards

they having signed various seizure panchanama, memorandum

statement under Section 27, having not lodged any protest or

complaint that they were coerced or tutored to sign on such

panchanama. The Hon'ble Apex Court has also observed in one of

it's judgments that there could be many reasons behind such panch

witnesses turning hostile and one such reason could be that they

are won over by the defence for reasons that could be perceived.

40. In the instant case, quite peculiarly, the panch

witnesses have turned hostile and those who have signed on the

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seizure panchanama are refusing to identify the articles seized,

though they admit their signatures and do not contend that they

were made to sign on blank papers. A tough cross examination, if

would have been conducted by the learned prosecutor, would have

surely assisted in exposing the motive of such hostile witnesses

whose testimonies were aimed to support the defence.

Nevertheless, it is now well settled that the circumstances and

available evidence concerning the seizure of articles, murder

weapons etc. could be used in aid of the case of the prosecution.

Moreover, when there are three eye witnesses whose testimonies

cannot be discarded merely because they are close relatives of the

deceased and in view of being natural witnesses, the seizure

panchanama need not be dumped as trash. We have evidence

before us which would indicate the manner in which the accused led

the police party to particular spots, from where the seizure was

made, the blood appearing on articles, being human blood, and the

testimonies of the eye witness, could be used in aid of the case of

the prosecution.

41. With regard to often repeated submissions and

insistence of the defence counsel that the witness should not be

related to the victims, it was held in the State of Rajasthan Vs. Teja

Ram, [(1999) 3 SCC 507], in paragraph No. 20 as under :-

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"20. .... The over-insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is a justification for making adverse comments against non- examination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbour-hood may be replete with other residents also."

42. It is concluded that even in the case of circumstantial

evidence, in which the chain is complete, merely because an

independent witness has not been examined, would not lead to a

conclusion that the entire case of the prosecution should be

dumped. If eye witnesses, who are relatives of the victim or the

deceased, are natural witnesses, their testimonies could be

scrutinized closely and the Court should take extra caution in

assessing the probative value of the testimonies of closely related

witnesses who are being termed as interested witnesses.

43. In Raj Kumar Singh Vs. State of Rajasthan (supra) the

Hon'ble Apex Court has observed in paragraph Nos. 38 and 39 as

under :

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"38. In the instant case, there have been major contradictions/ improvements/embellishments in the deposition of witnesses which cannot be ignored when they are examined in the correct perspective. The chain of links connecting the appellant with the crime appears inconclusive. It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labeled as omissions or contradictions. Therefore, the courts must be cautious and very particular, in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinize the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." It is in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence, the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution

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version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused. (Vide: ., (2004) 9 SCC 186;, (2010) 8 SCC 191; and Sampath Kumar v. Inspector of Police, Krishnagiri, AIR 2012 SC 1249). In Kehar Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883, this Court has held that if the discrepancies are material it would be safer to err in acquitting than in convicting the accused.

39. In Subhash v. State of Haryana, AIR 2011 SC 349, this Court has held that a significant omission in the statement of a witness recorded under Section 161 Cr.P.C. may amount to a major contradiction. However, it may depend upon the facts of case and in case of a material contradiction the accused becomes entitled for benefit of doubt and thus acquittal."

44. In view of the above law, we have accessed the

testimonies of the eye witnesses in the light of other pieces of

evidence. We find that, that part of the bullock story i.e a bullock

straying towards the house of accused No.1 and being brought back

to the house of the victim, needs to be ignored in view of the law

laid down by the Hon'ble Apex court in V. K. Mishra and another Vs.

State of Uttarakhand and another (supra). So also, that part of the

testimony of the eye-witnesses introducing a blow on the stomach

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of the victim also can be ignored. By deleting these portions, the

consistent testimonies of the three eye witnesses would be that the

deceased had been allowing his two nephews i.e the two accused,

to draw water from his well and it was in the summer season when

the water level was depleting vigorously, that he was restraining

them from drawing water. This denial in the month of May which is

the severest month in the summer season, in this part of the State,

appears to have agitated the accused and though the victim was

their real uncle (father's brother), they have attacked him resulting

in his death.

45. Through paragraph No.5 of the cross-examination of

PW4 - Vanya Bhijja Vasave, an eye witness, the defence has

brought on record the following four omissions :-

1) His stating before the police about accused No.2 Dhirsing's

giving blow of iron rod "on the forehead" of deceased Sanya

(omission is only to the extent of "on the forehead").

2) His stating to the police that bullock of Sanya had gone in

front of the house of accused No.1.

3) His disposing to the police about Sanya's proceeding towards

the house of accused No.1 to bring his bullocks back.

4) His stating to the police that when Sanya was taking his

bullocks to his house, both the accused followed him.

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46. Since PW4 Vanya in his cross-examination claimed to

have stated the aforesaid portion to the police while recording his

statement under Section 161 of Cr.P.C., it was necessary on the part

of the defence to prove the said omissions by confronting the same

to PW9 I.O., Shankar Garbad Shirole, PI, during his cross-

examination. Admittedly, the defence has not proved the same.

47. Like PW4 Vanya, defence has also brought on record

following one omission through the cross examination of PW8

Ashish Sanya Vasave, an eye witness :-

Accused No.2 Dhirsing's inflicting blow of iron rod on the head

of his father Sanya (Omission is only to the extent of "on the

head"). Since PW8 Ashish in cross-examination has stated the

aforesaid omission to the police while recording his statement under

Section 161 of Cr.P.C., it was necessary on the part of the defence

to prove the said omission by confronting the same to PW9 I.O.,

Shankar Garbad Shirole, PI, during his cross-examination.

Admittedly, defence has not proved the same.

48. From the aforesaid ratio laid down by the Hon'ble

Supreme Court, it is clear enough that if the witness was not

confronted with the part of the statement with which defence

wanted to contradict him, then the Court cannot make use of that

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statement made to the police until it is proved in compliance with

Section 145 of Evidence Act, i.e. by drawing attention of I.O. to the

part intended for contradiction.

49. In this case, though the defence has brought on record

aforesaid omissions from the cross-examinations of PW4 Vanya and

PW8 Ashish, it failed to prove the same by drawing attention of the

I.O. PW9 to the said statements during his cross-examination, in

compliance of Section 145 of the Evidence Act. Therefore, by using

the aforesaid omissions, substantive evidence of PW4 Vanya and

PW8 Ashish cannot be discarded.

50. Moreover, aforesaid omissions are minor in nature.

Therefore, by relying upon the same, veracity of PW4 - Vanya and

PW8 - Ashish cannot be doubted. The evidence of both these eye

witnesses on the material point of assault by both the accused, is

clear, cogent and consistent, and also corroborated by the evidence

of their mother i.e. PW5 Bondibai Sanya Vasave, who too had

witnessed the incident and lodged the FIR.

51. PW5 Bondibai is an eye witness of the incident and also

the first informant. Through her cross examination, in paragraph

No.8, defence has brought on record the following omissions :-

a) While lodging the FIR, she disclosed to the police about her

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husband Sanya's going in front of the house of accused for bringing

back the bullock.

b) Her disclosing to the police while lodging the FIR that when

her husband Sanya was bringing back the bullock, both the accused

assaulted him with the spear and iron rod on his shoulder and his

head, respectively.

c) FIR (Exhibit-30) clearly demonstrates that accused No.1 was

holding a spear and accused No.2 was holding an iron rod and they

both assaulted her husband Sanya with the said weapons. However,

FIR (Exhibit-30) does not specifically state that accused No.1 Kuta

and accused No.2 Dhirsing inflicted blows of spear and iron rod on

the right arm and the head of her husband Sanya, respectively.

The said omission is only to the extent of locations of blows on the

person of the deceased Sanya.

52. It is a settled position of law that an FIR is not an

encyclopedia to cover each and every fact. However, if it is

accepted that the aforesaid version of PW5 Bondibai, as far as

locations of the blow of spear and iron rod received by deceased

Sanya, is an improved version, then, having considered the medical

evidence, it clearly shows that the deceased Sanya had suffered

injures on his right shoulder and head, respectively. Only on the

basis of the aforesaid minor omissions, the evidence of PW5

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Bondibai, which is very cogent and natural, and corroborated by the

FIR (Exhibit-30) and evidence of two more eye witnesses viz. PW4

Vanya and PW8 Ashish, cannot be viewed with suspicion or be

discarded.

53. This consistent version of three eye witnesses coupled

with the postmortem report and the testimony of PW10 autopsy

surgeon clearly establishes that the deceased died on account of

the head injury. The evidence indicates that accused No.2 had

inflicted the iron rod head injury. In this back drop, we have no

reason to deviate from the conclusion of the trial Court that the

accused had assaulted the deceased and it was the blow inflicted by

accused No.2 that resulted in the death of Sanya.

WHETHER THE OFFENCE COMMITTED BY ACCUSED. NO. 1 AND ACCUSED NO. 2 WAS UNINTENDED AND WHETHER IT WOULD BE CONVERTED INTO AN OFFENCE U/S 324 OR 304 PART II OF THE IPC, RESPECTIVELY

54. The learned counsel for the appellants has canvased, in

the alternative, that the cases of these two accused could be looked

differently. Accused No.1 was 38 years of age, as in 2012 and

accused No.2 was about 32 years of age. Both are behind bars

since 04-05-2012 and 07-05-2012, respectively. Accused No.1 had

used a spear which, in the light of the evidence recorded, was not

the cause of the death of Sanya. Accused No.2 had given a single

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blow of the iron rod which hit the forehead of Sanya. He never

desired to kill his uncle and it is out of a sudden act that the iron

rod hit the skull of Sanya and that turned out to be a fatal injury.

In these circumstances, the case of accused No.1 could fall u/s 324

and the case of accused No.2 could be covered by Section 304 Part-

II of the IPC.

55. At first blush, the strenuous submissions of the learned

advocate for the appellants might appear to be convincing.

However, we cannot ignore that these two accused have been

charged with committing an offence under Section 302 read with

Section 34 of the IPC. The charge framed at Exhibit-7 on

13-09-2012 by the learned Additional Sessions Judge, Shahada,

reads as under -

"That you accused persons, in furtherance of your common intention, on 04-05-2012, at Kella-Khurd Upgari Ghatpada, Tahsil Dhadgaon, you accused No.1 gave blow by means of Bhala and you accused No.2 gave blow by means of iron bar to Sanya Bhigja Wasave as refused to give water of his well to you and you did commit murder by intentionally causing death of Sanya Bhigja Wasave and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and with my cognizance.

AND, I hereby direct that you be tried by me on the said charge. "

56. Sections 34, 324, 300, 302 and 304 of the Indian Penal

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Code read as under :-

"34. Acts done by several persons in furtherance of common intention --

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

324. Voluntarily causing hurt by dangerous weapons or means --

Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

300. Murder --

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- Secondly --

If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- Thirdly --

If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

Fourthly --

If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

302. Punishment for murder --

Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

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304. Punishment for culpable homicide not amounting to murder --

Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. "

57. Section 34 is with regard to a criminal act committed by

several persons in furtherance of a common intention of each of

such person which would make them liable for that act in the same

manner as if it was done by a single person alone. Both the

accused are real / biological brothers. Both were said to be drawing

water from the well of the deceased whenever there was enough

water in the well. Both were restrained from drawing water owing

to the summer season when the water bodies were drying up and

the water level in the well was depleting.

58. According to the eye witnesses and the articles seized,

both came near the deceased with weapons in their hands. Accused

No.1 was holding a spear and accused No.2 had an iron rod.

Evidence indicate that the first blow was inflicted by accused No.1,

which hit the left shoulder of the deceased. Had it pierced the left

ribs or the neck, it would have been life threatening. Accused No.2

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appears to have inflicted a vicious blow on the forehead of the

deceased which caused a severe internal injury and the deceased

suffered bleeding inside the skull. The contused lacerated wound

(CLW) over the right parietal region of the head was 5 cm x 2 cm.

This brain injury was enough to kill Sanya. It is not the case of the

accused, as may have emerged through their statements recorded

under Section 313 of the Cr.P.C. or through the cross examination

of the prosecution witnesses, that there was an altercation between

the accused and the deceased and in the heat of the moment, the

accused picked up whatever article that they could lay their hands

on and hit the deceased. The evidence indicates that both carried

weapons from their home and assaulted the deceased together,

thereby establishing a common intention and a common object.

59. In Suresh and Another vs. state of U.P. [AIR 2001

Supreme Court 1344], it is concluded that Section 34 of the IPC

recognizes the principle of vicarious liability in criminal

jurisprudence. It is a rule of evidence and does not create a

substantive offence. This section has two postulates in its

applicability to an offence committed by more than one person,

punishable under any of the provisions of the IPC. These two

postulates would be indispensable. The criminal act should have

been done by persons more than one and each of such individual

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act cumulatively must result in commission of a crime which is

punishable under the IPC.

60. We are of the considered view that neither Section 324

could be attracted, nor could it be said that the act committed by

any of them would be covered by Part-II of Section 304. The Act

committed by the accused would not fall within any of the five

exceptions to Section 300, defining culpable homicide not

amounting to murder.

61. As such, this appeal being devoid of merit, is dismissed.

(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)

SVH

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