Bombay High Court
Shobha Mahadeo Gadge And Another vs Maroti S/O Kisnaji Bite And 3 ... on 23 March, 2021
Bench: Z.A. Haq, Amit B. Borkar
1 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.568 OF 2017
WITH
CRIMINAL APPEAL NO. 237 OF 2018
AND
CRIMINAL APPEAL NO. 637 OF 2019
CRIMINAL APPEAL NO. 568 OF 2017
Devendra S/o. Maroti Bite,
Aged about 33 years,
Occ. : Agriculturist,
R/o. Chikhali, GP, Vihirgaon,
Taluka Ralegaon, Dist. Yavatmal. (In Jail). . . . . APPELLANT
. . . . VERSUS . . . .
The State of Maharashtra through
its Police Station Officer,
Police Station, Wadki, District Yavatmal. . . . . RESPONDENT
--------------------------------------------------------------------------------------------------
Shri Shri D. H. Sharma, Advocate a/w Shri P. D. Sharma, Advocate for
appellant.
Shri T. A. Mirza, A.P.P. for respondent/State.
--------------------------------------------------------------------------------------------------
WITH
CRIMINAL APPEAL NO. 237 OF 2018
The State of Maharashtra through
Police Station Officer
Wadki, Tq. Ralegaon,
District Yavatmal . . . . APPELLANT
. . . . VERSUS . . . .
1. Maroti S/o. Kisnaji Bite
Aged about 65 years,
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2 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
2. Devendra Maroti Bite,
Aged about 33 years,
(Leave rejected as per Court's order dated 02.04.2018)
3. Devanand Maroti Bite,
Aged about 38 years,
All R/o. Chikhali, G.P. Vihirgaon,
Tq. Ralegaon, District Yavatmal. . . . . RESPONDENTS
--------------------------------------------------------------------------------------------------
Shri T. A. Mirza, A.P.P. for appellant/State.
Shri D.H.Sharma, Advocate a/w. Shri P.D. Sharma, Advocate for
respondents/State.
--------------------------------------------------------------------------------------------------
WITH
CRIMINAL APPEAL NO. 637 OF 2019
1. Shobha Mahadeo Gadge,
Aged about 51 years,
Occ. Household
2. Swapnil Mahadeo Gadge,
Aged about 25 years,
Both R/o. Chikhali, G.P.,
Vihirgaon, Tq. Ralegaon,
Distt. Yavatmal. . . . . APPELLANTS
. . . . VERSUS . . . .
1. Maroti S/o. Kisnaji Bite
Aged about 65 years,
2. Devendra Maroti Bite,
Aged about 33 years,
3. Devanand Maroti Bite,
Aged about 38 years,
Nos. 1 to 3 are R/o. Chikhali, G.P.,
Vihirgaon, Tq. Ralegaon, Distt. Yavatmal.
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3 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
4. State of Maharashtra through
Police Station Officer,
Police Station, Wadki, District Yavatmal. . . . . RESPONDENTS
--------------------------------------------------------------------------------------------------
Shri Santosh D. Chande, Advocate for appellants.
Shri D.H. Sharma, Advocate a/w. Shri P.D. Sharma, Advocate for
respondent nos. 1 to 3.
Shri T. A. Mirza, A.P.P. for respondent no. 4/State.
--------------------------------------------------------------------------------------------------
CORAM : Z. A. HAQ AND
AMIT B. BORKAR, JJ.
RESERVED ON : 24.02.2021
DECIDED ON : 23.03.2021.
JUDGMENT (PER : AMIT B. BORKAR, J.) :
1. Since all three appeals arise out of the same set of facts
and the common judgment, we are disposing them of by common
judgment.
2. Through these three appeals, the appellant in Criminal
Appeal No.568/2017 challenges the judgment and order dated
25.10.2017 passed by the Sessions Judge, Yavatmal in Sessions Trial
No.50 of 2016, whereby the appellant (accused no. 2) has been
convicted and sentenced in the manner stated hereunder:
(i) Under Section 304 Part II of the Indian Penal Code, to
undergo rigorous imprisonment for seven years and to pay a fine of
4 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
Rs.5000/-(Rs. Five Thousand), in default to suffer rigorous
imprisonment for six months.
3. The Victim (injured eye-witness) has filed Criminal Appeal
No.637/2019 challenging acquittal of the accused nos.1 and 3 for
offence punishable under Section 302 of the Indian Penal Code and
also conviction of accused no. 2 for lesser offence under section 304 II
instead of section 302 of Indian Penal Code.
4. The State of Maharashtra has filed Criminal Appeal
No.237/2018 challenging acquittal of the accused nos.1 and 3 for
offence punishable under Section 302 of the Indian Penal Code and for
conviction of the accused no.2 under Section 302 of the Indian Penal
Code.
5. Shortly stated, the prosecution case runs as under:-
On 16.3.2016, Informant -Shobha Mahadev Gadge
(PW 1) lodged report in Wadki Police Station alleging that when she
had gone to her field for agricultural work at about 11.00 a.m.
Laxmibai and Bebi (PW 10) were doing work of picking cotton in her
field. Ambadas Dhurve (PW 9), Mahadeo Gadge and Swapnil Gadge
(PW 6) were also working in the said agricultural land. One Amit Uge
5 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
(PW 8) had also come to fetch water from well of that field. At that
time, Pravin (deceased) had come there to look after his cow in the
said field. All the accused alongwith labourers were cutting Babul trees
on the common boundry of her field. At about 12.00 noon, Swapnil
Gadge (PW 6) and Pravin (deceased) went to the spot where the work
of cutting Babul trees was in progress. Swapnil (PW 6) told the
accused no.1 not to cut Babul trees, as he had given report to Police
Station. However, the accused no.2 gave two blows of axe on the head
of Pravin and, therefore, Pravin sustained bleeding injury and fell
down. When Swapnil (PW 6) tried to intervene, the accused no.1
caught him and the accused no.3 beat him with stick. Thereafter, all
the accused ran towards village. When Shobha (PW 1) shouted for
help, people working in nearby fields came there and took Pravin and
Swapnil (PW 6) to hospital for treatment in bullock-cart.
6. On 16.3.2016, initially P.S.I. Ritesh Raut (PW 15)
registered offence under Section 307 read with Section 34 of the
Indian Penal Code, vide Crime No.49/2016. After the death of Pravin,
offence under Section 307 of the Indian Penal Code was altered to
Section 302 of the Indian Penal Code.
6 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
7. Shri Ritesh Raut, P.S.I. (PW 15) recorded statements of
the accused and seizure panchanama was drawn in presence of panch
witnesses. The Police also seized clothes of the accused and the
deceased. Blood samples of the accused and the deceased were taken
and sent to Chemical Analyst. The police also recorded inquest of
dead body and got autopsy done to know the cause of death. After
completion of the investigation, the police filed Charge-sheet in the
Court of Judicial Magistrate First Class, Ralegaon. The case was
thereafter committed to the Court of Sessions Judge, Yavatmal, as
offence under Section 302 of the Indian Penal Code is exclusively
triable by the Court of Sessions.
8. The charges were framed against all the accused, which
were explained to them in vernacular for which, they pleaded not
guilty and claimed to be tried.
9. The learned Trial Judge believed the evidence adduced by
the prosecution and convicted the accused no.2 in the manner stated
in paragraph no.2 above and acquitted the accused nos.1 and 3.
Hence, these three appeals.
7 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
10. In Criminal Appeal No.237/2018 while granting leave
sought by the State, this Court granted leave to file appeal against the
judgment of the Trial Court acquiting the accused nos.1 and 3 for
offence punishable under Section 302 of the Indian Penal Code and
refused leave to challenge conviction of the accused no.2 under
Section 304 Part II of the Indian Penal Code instead of Section 302 of
the Indian Penal Code.
11. The victim - Swapnil (PW 6), who is injured in the
incident and Shobha (PW 1) -mother of Swapnil have filed Criminal
Appeal No.237/2018 on 17.11.2018. The Apex Court in the case of
Mallikkarjun Kodagali Vs. State of Karnataka reported in (2019) 2 SCC
752, has held that in view of proviso to Section 372 of the Code of
Criminal Procedure (for short "the Code"), the "victim" as defined in
Section 2(wa) of the Code, has a right to file appeal without seeking
leave of the Court. Having considered definition of "victim" under
Section 2(wa) of the Code, the appellant no.2 - Swapnil being injured
in the incident would be the victim as defined by sub-section (wa) of
Section 2 of the Code.
12. The question that falls for consideration would be whether
rejection of the prayer of the State for grant of leave to file appeal has
8 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
any effect on maintainability of the appeal by the victim after
introduction of proviso to Section 372 vide Act 5 of 2009 with effect
from 31.12.2009.
13. Section 372 of the Code of Criminal Procedure reads as
under:
"372. No appeal to lie unless otherwise provided - No appeal
shall lie from any judgment or order of a Criminal Court except
as provided for by this Code or by any oher law for the time
being in force:
[Provided that the victim shall have a right to prefer an
appeal against any order passed by the Court acquitting the
accused or convicting for a lesser offence or imposing
inadequate comensation, and such appeal shall lie to the Court
to which an appeal ordinarily lies against the order of
conviction of such Court.]".
Reading of the proviso to Section 372 of the Code of
Criminal Procedure, 1973 makes it clear that the Legislature has
consciously conferred a substantive right of appeal upon a victim.
Proviso to Section 372 of the Code of Criminal Procedure has been
introduced by Criminal Procedure (Amendment) Act, 2008 (Act 5 of
2009). A new definition of "victim" is also simultaneously introduced
while amending the Code by introducing Section 2(wa) by the
Criminal Procedure (Amendment) Act, 2008. The Legislature has
9 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
used the term "shall" in the proviso to Section 372 of the Code while
conferring a right to the victim but, at the same time sub-section (4) of
Section 378 of the Code is kept intact, thereby making its intention
clear that the right of substantive appeal conferred on the victim by
way of proviso to Section 372 of the Code is an independent right.
14. Malimath Committee on criminal justice reforms in para
no. 2.21 of the report highlighted the right of appeal of the victim in
following words :-
"2.21. The victim or his representative, who is party to
the trial should have right to prefer an appeal against any
adverse order passed by the Trial Court. In such an appeal, he
could challenge the acquittal or conviction for lower offence or
inadequacy of sentence or in regard to compensation payable to
the victim. The Appellate Court should have same powers as
that of the Trial Court in regard to assessment of evidence and
awarding of sentence."
15. The 154th Report of Law Commission had also addressed
need for victim orientation in criminal justice administration. The
recommendation of Malimath Committee and 154th Report of Law
Commission prompted the legislature to bring changes in the Code of
Criminal Procedure (in short "the Code") to empower the victim with
right of appeal by inserting proviso to Section 372 of the Code. The
10 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
newly added proviso to Section 372 of the Code creates right in favour
of victim in following three contingencies which are viz.:-
i. Against acquittal of accused, or
ii. Conviction of accused for lesser offence, or
iii. Inadequate compensation.
In view of the authoritative judgment of the Apex Court in
the case of Malikarjun Kodagali (supra) there cannot be dispute about
the position of law that victim can directly file appeal against the order
of acquittal without seeking leave from High Court.
At this stage, it is pertinent to note that the right of State
is created under sub-Section 1 of Section 378 of the Code is
circumscribed by sub-Section 3 of Section 378 of the Code by making
it mandatory to seek leave. Sub-section 6 of Section 378 further
circumscribes right of State to challenge judgment and order of
acquittal by making it subject to outcome of appeal filed by
complainant under sub-Section 4 of Section 378. In other words, if
special leave under sub-Section 4 of Section 378 is refused by High
Court then right of State to file appeal under sub-Section 1 or sub-
Section 2 of Section 378 of the Code is taken away. The scheme of
Section 378 therefore, deals with right of State and complainant to
challenge judgment and order of acquittal under sub-Section 1 or sub-
11 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
Section 2 of Section 378 of the Code. The legislature was conscious of
the rights of the State and complainant to challenge judgment and
order of acquittal subject to leave of the Court before enacting proviso
to Section 372 of the Code. It is therefore necessary to interprete
proviso to sub-Section 372 of the Code in favour of unconditional right
of appeal of the victim to challenge the judgment and order of
acquittal against which leave to file is refused under sub-Section 3 of
Section 378 of the Code. The interpretation of the proviso to Section
372 is with specific object and purpose to safeguard interests of the
victim whereby an independent and substantive right of appeal,
without leave requiring of High Court is statutorily created upon
victim. This right of victim cannot be held to be subject to refusal of
leave of the State in preferring an appeal under sub-Section 1 of
Section 378 of the Code. Such interpretation could run contrary to
the object for which the amendment is made by the legislature by
inserting proviso to Section 372 of the Code. It needs to be noted that
right of State to file appeal against the judgment and order of acquittal
must be placed at lower pedestal than the independent right of the
victim to challenge the judgment and order of acquittal under proviso
to Section 372 of the Code.
12 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
16. The Apex Court in the case of Naval Kishore Mishra Vs.
State of Uttar Pradesh reported in (2019) 13 SCC 182 had an occasion
to consider similar issue. In the facts of the said case, the State was
declined leave to file appeal to challenge the judgment of the Sessions
Court. Thereafter, the victim had filed appeal before the High Court
and the High Court dismissed the appeal of the victim observing that
since another Bench of the said Court had already refused to grant
leave and the Appeal by State itself stood dismissed in view of refusal
to grant leave, it will not be congruous to unfold another course. The
Apex Court, upheld the submission of the victim that right of appeal
would be available to the victim as the right of the victim is different
and held that the appeal filed by the victim ought not to have been
dismissed at the threshold only on the ground that leave was not
granted to the State to appeal against the order of acquittal. The
Hon'ble Apex Court accepting the above argument laid as under:
"11. We are in agreement with the aforesaid plea since the
extracted portion of the impugned order shows that the only
reason recorded for dismissing the appeal of the victim (in
fact styled as leave to appeal) was on the ground that leave
had not been granted to the Government to file the appeal.
The legal position enunciated in Mallikarjun Kodagali would
show that the appellant had a right to file the appeal and in
fact no leave has to be sought in such a situation. Thus, the
appeal has to be dealt as a regular. In view of the aforesaid,
13 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
we set aside the order of the High Court and allow the
appeal remitting the appeal to be considered by the High
Court on merits."
17. The Apex Court in the case of Roopendra Singh Vs. State
of Tripura reported in (2017) 13 SCC 612, was considering a similar
case where application seeking leave by the State was rejected and,
therefore, appeal of the victim was dismissed. While allowing the
appeal of the victim, the Apex Court held as under:
"10. Section 372 Cr.P.C. has conferred upon a victim a
substantive and independent right to maintain an appeal
against acquittal. The widow of the deceased in the present
matter comes within the definition of "victim" as
incorporated in Section 2(wa). Merely because leave to
appeal was not granted to the State to prefer an appeal
against acquittal, the appeal preferred by the victim
informant ought not to have been rejected by the High
Court summarily. We, therefore, set aside the order dated
28.06.2012 passed by the High Court rejecting Criminal
Appeal preferred by the appellant and remit the matter to
the High Court for fresh consideration. It will be open to
the High Court to consider the matter for grant of leave to
appeal to the appellant in the light of paragraphs 17 and 18
of the decision of this Court in Satya Pal Singh".
18. In view of ratio laid down by the Apex court in the case of
Naval Kishore Mishra (Supra) and Roopendra Singh (supra), we hold
that the victim as defined in Section 2(wa) of the Code has a right to
14 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
file an appeal against the judgment of Sessions Court even if prayer
for leave to file appeal by the State to challenge acquittal or conviction
for lesser offence, filed under Section 378(4) of the Code has been
dismissed. In other words, even after dismissal of prayer for leave to
file appeal by the State to challenge the acquittal of the accused or
conviction of the accused for lesser offence, the Victim as defined
under Section 2(wa) of the Code has a right to file appeal to the High
Court under proviso to Section 372 of the Code without seeking leave
to file appeal.
19. We, therefore, proceed to consider whether the learned
Trial Judge was justified in convicting and sentencing the accused no.2
for offence under Section 304 Part II of the Indian Penal Code instead
of Section 302 of the Indian Penal Code.
20. We have heard the learned Advocates and the learned
Additional Public Prosecutor for the respective parties and perused
entire material on record. In our view, the appeal of the accused no.2
deserves to be dismissed and the appeals of the State and the Victim
deserve to be allowed.
15 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
21. Shri D.H. Sharma, learned Advocate for the appellant -
accused no.2, submitted that there is inconsistency between medical
evidence and ocular evidence. The eye-witnesses are interested
witnesses and, therefore, their evidence are not reliable, and there is
no independent witness, who has seen the incident. It is submitted
that the depositions of all eye-witnesses are similar and, therefore, it
leads to inevitable inference that they are tutored witnesses. He
submitted that height of cotton crop in the field was more than six feet
where the incident took place and, therefore, it was impossible for the
eye-witnesses to actually see the incident. He submitted that all the
witnesses arrived at the spot after the incident and had not seen the
actual incident particularly, in view of height of crop being more than
six feet. He submitted that Pravin died after two days of the incident
and, there is no investigation nor the evidence to show the sequence of
events of those two days. He submitted that Swapnil (PW 6) being
interested witness, his testimony cannot be relied upon. He submitted
that Shobha (PW 1), Ambadas (PW 9) stated that Pravin suffered
injury on left side of head but, the medical evidence shows that the
deceased suffered only abrasion injuries on the left side. He submitted
that in case of inconsistency between the ocular evidence and the
medical evidence, benefit should go to the accused. He submitted that
16 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
recovery of weapon i.e. blood stained axe has not been proved by the
prosecution. The chemical evidence is not supporting the case of the
prosecution. He submitted that there is suppression of material facts,
as the prosecution has failed to explain injuries suffered by the accused
persons. He lastly submitted that the circumstances proved before the
Trial Court suggest that the oral evidence is not reliable and the
accused were falsely implicated in the crime due to enmity. In support
of his submissions, he relied upon the following judgments:
i) Gundi Mada and another Vs. State of Naganjud Rural Police
(Criminal Appeal No. 1983/2005 (C), Dt. 06.09.2012, High
Court of Karnataka at Banglore)
ii) Mohd. Ilyas Vs. State of U.P. [AIR 1974 SC 1980]
iii) Jugal Kishore Laha and others Vs. State [1984 Cr.L.J. 360 (Cal.)]
iv) Soundarpandi Vs. State [1983 Cr.L.J. 1199 (Madras)]
v) Laxshmi Singh and others etc. Vs. State of Bihar [AIR 1976 SC
2263]
vi) State of Maharashtra Vs. Pandhari s/o Chindhu Lakhe and
others (Criminal Appeal No.419/1992, Bombay High Court)
vii) Mustkeem @ Sirajudeen Vs. State of Rajasthan
[AIR 2011 SC 2769]
viii) Janki Back Vs. State of Chattisgarh (Criminal Appeal No.
311/2010, Chattisgarh High Court)
ix) State of Bihar Vs. Chandan Kumar (Death Reference No. 1/2008,
Dt. 01.09.2010, Patna High Court)
x) Gopal Kisanji Ketkar Vs. Mohd. Haji Latif and others
17 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
[AIR 1968 SC 1413]
xi) Bhausaheb Tavnappa Mahajan and others Vs. State of
Maharashtra [AIR 1982 BOM 284]
xii) Shivaji Guru Naik Vs. State of Maharashtra [1999 Cr.L.J. 471]
xiii) Laxman Prasad Vs. State of Bihar [AIR 1981 SC 1388]
22. Shri T.A. Mirza, learned Additional Public Prosecutor for
the State, submitted that the manner of assault and intention to kill
Pravin(deceased) has been proved by the prosecution beyond
reasonable doubt. He submitted that Pravin(deceased) was attacked
by the accused no.2 with such a force that skull of Pravin got fractured.
He submitted that there is evidence to show that the accused no.3 held
Pravin(deceased) from back side and the accused no. 2 assaulted
Pravin with axe. He submitted that minor injuries on the accused and
injured witness are not required to be explained. In support of his
submission that even a single blow attracts ingredients of Section 302
of the Indian Penal Code, he invited our attention to the judgment of
the Apex Court in the case of Suraj Bhan Vs. State of Haryana
reported in (2003) ALL MR(Cri.) 573 (S.C.) and the judgment of the
Division Bench of this Court in the case of Krushna S/o. Jagganath
Sirsath and Anr. Vs. The State of Maharashtra reported in 2018 ALL
MR (Cri) 4313. In support of his submission that relationship is not a
factor to affect the credibility of a witness, and the overact of
18 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
restraining movement of the deceased and holding him while co-
accused inflicted axe blows, amounts to participation in crime. He
relied upon the judgment of the Apex Court in the case of Israr Vs.
State of U.P. reported in AIR 2005 SC 249.
23. Shri Chande, learned Advocate for the Victim submitted
that the prosecution has proved beyond reasonable doubt the
ingredients of Clause (3) of Section 300 of the Indian Penal Code. He
submitted that consistent ocular evidence of the eye-witnesses is the
direct evidence to prove the involvement of all the three accused and,
therefore, minor inconsistencies would not create doubt about the case
of the prosecution. He submitted that all the accused had requisite
intention to kill Pravin (deceased) and the medical evidence has
proved beyond doubt that the injuries inflicted by the accused persons
were sufficient in the ordinary course of nature to cause death. He,
therefore, submitted that the Trial Court ought to have convicted all
the three accused under Section 302 of the Indian Penal Code.
24. As we have mentioned earlier, six eye-witnesses namely
Shobha (PW 1)[mother of Swapnil], Swapnil - [injured eye witness],
Chintaman (PW 7), Amit (PW 8) [adjacent owner], Ambadas (PW 9)
[Employee of Swapnil], Bebi (PW 10)- [Labourer of the Complainant]
19 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
were examined by the prosecution. Four eye-witnesses, Shobha (PW
1), Swapnil (PW 6), Chintaman (PW 7) and Ambadas (PW 9) gave
evidence in respect of assault on Pravin (deceased). The evidence of
Shobha (PW 1), Swapnil (PW 6), Chintaman (PW 7) and Ambadas
(PW 9) shows that at the time when the accused were cutting Babul
trees with the help of two labourers, Swapnil (PW 6) told the accused
no.1 not to cut Babul trees, since he had lodged report to the Police
Station and thereafter there was quarrel between Swapnil and Pravin
on the one side and the accused on the other side. During the assault
the accused no.3 dropped stick down and caught Pravin (deceased)
from backside. The accused no.2 rushed there with an axe and tried to
give blow of axe on Pravin but, Pravin (deceased) avoided the same.
The accused nos.1 and 3 were telling the accused no. 2 to give axe
blows to Pravin (deceased). At that time, the accused no.2 gave axe
blow on the head of Pravin (deceased). Pravin fell down due to said
blow and blood started oozing out from his head and thereafter all the
accused ran away from the spot of incident. The evidence of four
witnesses Shobha (PW 1), Swapnil (PW 6), Chintaman (PW 7) and
Amit (PW 8) shows that the accused no.2 was armed with axe before
quarrel started. We have examined the evidence of all four eye-
witnesses including injured eye-witness and find it to be implicitly
20 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
truthful. About blow of axe on Pravin's head is corroborated by the
medical evidence of Dr.Borkar (PW 13). Swapnil (PW 6), Chintaman
(PW 7) and Amit (PW 8) have not stated regarding blow of axe on
particular side of head but, have stated that the assault was on the
head of Pravin (deceased). The evidence of Dr. Borkar (PW 13) is
consistent with his Certificate. He narrated the details of external and
internal injuries, which he found on the body of Pravin (deceased). In
his opinion, external injury no.1 as well as internal injury no.1 could
have been caused by sharp-edged weapon and was possible by an axe
(Article A). In his opinion, the injuries were sufficient to cause death
of a person in the ordinary course of nature and he found cause of
death of Pravin as `head injury'. The injuries stated by Dr. Jaideo
Borkar on the dead body of Pravin were as under:
"[1] Crape bandage present over right parietal region
posterior aspect 4 cm. above ear. On opening the crape
bandage surgical intervention seen as stitched wound with 7
intact stitches. On opening the stitches chop wound present
of size 5 cm X 1.5 cm. X bone deep.
[2] Abrasion of size 1 cm. X 0.3 cm. present over left
frontal region, 2 cm above eye brow, transversely oblique
dark brown in colour.
[3] Abrasion of size 1 cm. X 0.3 cm. present over left
zigomatic area, 3 cm. below and lateral side of left eye,
vertically oblique dark brown.
21 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
[4] Abrasion of size 3 cm. X 0.3 cm. present over left
anterior superior iliac spine vertically dark brown.
[5] Two contusions of size 5 cm. X 1 cm. and 4 cm. X 1
cm. parallel to each other present over dorsal aspect of right
forearm, 2 cm. above right wrist joint, 1 cm. below upward
to each other. Transverse bluish black in colour.
[6] Surgical intervention seen as a punctured would
present over left cubital fossa 1 mm. [intravenous infusion
mark].
On internal examination I found internal injuries as
follows :-
[1] Scalp- under scalp hemotoma present over right
temporo pareital region about 50 cc blood and blood clots
present, dark red in colour.
[2] Skull- Depressed communited fracture present over
right temporo parietal region of size 4 cm. X 2 cm.
Corresponding to external injury No. 1 of col. No. 17.
[3] Linear fracture present over right temporo parietal
region transversely oblique.
[4] Brain- meninges intact. Sub-dural hemotoma present
over right temporo parietal region about 50 cc blood and
blood clots present, dark red in colour. Subarachnoid
hemorrhage present in thin film of blood, all regions of brain
about 40 cc blood and blood clots, dark red in colour. Bran
congested and edematous."
25. Sudhir Rathod (PW 2) deposed that the accused no.2 after
making confessional statement led them to his house at village
Chikhali and thereafter produced one axe from his house, kept in a
heap of cotton. Though, it is submitted by the Advocate for the accused
no.2 that no cotton fibers were found on the axe and it is suspicious
22 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
circumstance, in our opinion, absence of cotton fibre on the axe, by
itself, cannot be treated as doubtful circumstance, as there was every
possibility of wiping of the said axe before putting it into a heap of
cotton at the hands of the accused. Insofar as the submission of the
Advocate for the appellant regarding non-identification of the axe by
Sudhir Rathod (PW 2) at the time of his evidence, it has to be noted
that Sudhir Rathod (PW 2) deposed before the Court on 30.3.2017 i.e.
after the period of one year of the discovery of said axe. Therefore,
inability of Sudhir Rathod (PW 2) in identifying the said axe cannot be
termed as suspicious circumstance to discard the recovery of axe. Even
otherwise in absence of proof of recovery of weapon, reliable, cogent
and clinching ocular evidence of the eye-witnesses including injured
witness fixes involvement of the accused in the crime alleged against
them.
26. Abhay (PW 4) and Umesh (PW 5) are common panchas
on all seizure panchanamas at Exhibit Nos. 45, 47 and 52, which are in
respect of seizure of clothes of Pravin (deceased), Amit Uge (PW 8)
and Swapnil (PW 6). The learned Trial Judge in paragraph nos.28 and
29 has considered in detail proof of seizure of the clothes and has
recorded finding that the prosecution has substantially established
seizure of the Articles C, D and E from the spot of incident. In our view,
23 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
the circumstance of blood stained clothes at the pointing out of the
accused no.2 on which Chemical Analyst found human blood is the
incriminating circumstance. The Hon'ble Apex Court in paragraph 10
of the oft-quoted case of Khujji @ Surendra Tiwari Vs. State of Madhya
Pradesh reported in (1991) 3 SCC 627 has held that presence of
human blood on the recovered articles is the incriminating evidence.
27. The Hon'ble Supreme Court in the oft-quoted referred
decision of Virsa Singh Vs. State of Punjab, reported in AIR 1958 SC
465, has held that for application of Clause (3) of Section 300 of the
Indian Penal Code, two requirements have to be satisfied mainly :
(a) there should be intention to inflict bodily injury (it should not be
accidental); and
(b) the injury inflicted should be sufficient in the ordinary course of
nature to cause death.
28. The intention to cause death, as contemplated by Clause (3)
of Section 300 of the Indian Penal Code can be gathered from the
following factors:
(i) Nature of weapon used;
(ii) Whether the weapon was carried by accused or was picked up
from the spot;
(iii) Whether the blow was aimed at the vital part of body;
24 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
(iv) The amount of force applied in causing injury.
(v) Whether the act was in course of sudden quarrel or sudden fight
or free fall and fight;
(vi) Whether the incident occurred by chance or whether there was
any premeditation.
(vii) Whether there was any prior enmity or whether the deceased
was a stranger;
(viii) Whether there was any grave and sudden provocation and if so,
the cause of provocation.
(ix) Whether it was in heat of passion;
(x) Whether the person inflicting injuries had taken undue
advantage or had acted in a cruel or unusual manner; and
(xi) Whether the accused dealt a single blow or several blows.
29. Coming back to the facts of the case, it can be seen that
the axe was not taken from the spot. The eye-witnesses have stated
that Pravin (deceased) and Swapnil (PW 6) had asked the accused
persons not to cut Babul trees and thereafter the accused no.2
assaulted Pravin (deceased) on his head. The amount of force applied
by the accused no.2 was such that skull of Pravin (deceased) was
fractured. The evidence on record shows that there was enmity
between the accused persons and Pravin (deceased). The evidence on
25 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
record shows that there was no grave and sudden provocation.
Though, the accused dealt a single blow by axe, the amount of force
used by accused no. 2 resulted into fracture of skull. Though Pravin
(deceased) had avoided the first blow, the accused no. 2, on instigation
of accused nos. 1 and 3 again gave blow on the head of Pravin
(deceased).
30. The other circumstances to prove intention, as
contemplated by Section 300 of the Indian Penal Code, are that the
accused was carrying axe which at times is deadly weapon. The blow
was on head of the deceased, which is vital part of body. The Medical
Expert Dr. Borkar (PW 13) has categorically stated that the head injury
was sufficient in the ordinary course of nature to cause death. The Trial
Court in paragraph 34 of its judgment, has recorded a finding that the
accused no.2 was definitely having intention to kill or cause such
bodily injury likely to cause death of Pravin (deceased). The Trial
Court has also recorded the finding that the Medical Expert stated
that all the aforesaid injuries were ante-mortem and were sufficient to
cause death of a person in the ordinary course and the cause of death
of Pravin (deceased) is mentioned as "death due to head injury".
26 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
31. In view of the aforesaid findings by the learned Trial
Judge, we find that the learned Trial Judge ought to have convicted
the accused no.2 for offence punishable under Section 302 of the
Indian Penal Code, but the Trial Judge committed an illegality by
convicting the accused for offence punishable under Section 304 Part II
of the Indian Penal Code, instead of under Section 302 of the Indian
Penal Code.
32. Shri D.H. Sharma, learned Advocate for the accused no.2
submitted that the ocular account, which is the foundation of
conviction of the accused no.2, comprises of the testimonies of
interested witnesses namely Shobha (PW 1) - mother of Swapnil,
Swapnil (PW 6) - injured eye witness, Chintaman (PW 7) - adjacent
owner and Ambadas (PW 9) - employee of Swapnil and Bebi-
Labourer of Shobha (PW 10). Hence, it is unworthy of acceptance.
Way-back in 1965 in the case of Masalti Vs. State of Uttar Pradesh
reported in AIR 1965 SC 202, the Hon'ble Supreme Court has held that
mere circumstance that the witnesses are interested would only make
the Court to evaluate their evidence with caution and not mechanically
reject it. We have exercised necessary caution for evaluating the
testimonies of four eye-witnesses and we find it implicitly truthful.
27 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
33. It is also necessary to consider the submission of the learned
Advocate for the appellant (accused no.2) that Shobha(PW 1), Swapnil
(PW 6), Chintaman (PW 7) and Ambadas (PW 9) though were
projected as eye-witnesses, their depositions are verbatim parrot like
reproduction of the statements given to the police under Section 161
of the Code of Criminal Procedure. We have carefully gone through the
statements of said witnesses. Though, we find some similarity in their
testimonies, but we do not agree that the depositions are word to word
same with their statements to the police. Shri Sharma, learned
Advocate for the accused relied on the judgment of the Apex Court in
the case of Mohd. Ilyas (supra) in support of his submission that
parrot-like evidence cannot be relied upon to convict the accused. On
careful consideration of the said judgment, it appears that the Hon'ble
Supreme Court doubted version in the First Information Report on the
basis of testimony of Informant and had granted benefit of doubt to
the accused considering the fact that the incident took place in dark
night. It is in the context of these glaring facts, the Apex Court held
that the First Informant repeating the contents of the First Information
Report in parrot-like manner created doubts about the incident. In the
facts of the present case, it has been proved that the eye-witnesses
were present when the incident took place. The evidence of all four
28 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
eye-witnesses inspires confidence and, therefore, the said judgment is
of no help to the appellant.
34. Insofar as the submission on behalf of the accused no.2
about height of cotton crop being more than five feet is concerned, we
have considered the evidence of Sudhir Rathod (PW 2)- Talathi, who
stated that in the month of March the height of cotton crop is more
than five feet. It is pertinent to note that Sudhir Rathod (PW 2) in his
cross-examination has not stated that the crop in the agricultural field
where the incident took place was more than five feet in height. There
is no other evidence on record to show that the crop in the agricultural
field where the incident took place was more than five feet in height.
The judgment in the case of Laxman Prasad (supra) relied upon by the
accused where the Apex Court observed that while witnesses may lie,
the circumstances do not is of no help to the accused as the accused
therein was well-known doctor, who was convicted of offence of
dacoity in the house of his neighbour. There were circumstances
brought on record, which created doubt regarding involvement of the
accused therein and the circumstances of the case raised possibility of
false implication.
29 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
35. The next submission on behalf of the accused no.2 is that
all the witnesses came at the spot of incident after the incident of
assault was over. The evidence of Shobha (PW 1), Swapnil (PW 6),
Chintaman (PW 7) and Ambadas (PW 9) shows that accused no. 2
assaulted Pravin with axe and the eye-witnesses have witnessed the
incident. Therefore, we cannot accept submission of the learned
Advocate for accused no.2 that the eye-witnesses arrived on the spot
after the incident.
36. Insofar as inconsistency in the medical evidence and that
of ocular evidence is concerned, we have considered said submission
and in our opinion, only Shobha (PW 1) has stated that the accused
no.2 gave axe blow on left side of head of Pravin (deceased) but, the
other eye-witnesses namely, Swapnil (PW 6) and Chintaman (PW 7)
and Amit Uge (PW 8) deposed about blow of axe on the head of
Pravin, without specifying side of head where assault took place. In our
opinion, the evidence of Shobha (PW 1), Swapnil (PW 6), Chintaman
(PW 7) and Ambadas (PW 9) appears to be cogent, reliable and
inspires confidence in respect of the assault by accused no.2 on the
head of Pravin (deceased). Dr. Borkar (PW 13) has stated that the
injuries to Pravin (deceased) were possible by articles recovered and
the head injury was the cause of death. We are satisfied that the ocular
30 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
account of at least four eye-witnesses Shobha (PW 1), Swapnil (PW6),
Chintaman (PW 7) and Ambadas (PW 9) sufficiently proves
involvement of the accused no.2 in the murder of Pravin (deceased)
and the medical evidence also corroborates the case of the prosecution.
The learned Advocate for the accused no. 2 relied on the judgments in
the case of Jugal Kishore (supra) and Soundarpandi (supra). Both the
judgments are on the point of inconsistency of statements of eye-
witnesses. On the careful scrutiny of the evidence of four eye-
witnesses in the present case, we do not find any material
inconsistency either in relation to manner of assault or the role played
by the accused persons. Therefore, insignificant and minor
inconsistencies in the testimonies of the eye-witnesses will be of no
help to the accused .
37. The next submission of the learned Advocate for the
accused no.2 is about lack of evidence after Pravin (deceased) was
admitted to hospital. In our opinion, the testimony of the Medical
Expert Dr. Borkar (PW 13), who categorically stated that the death of
Pravin occurred due to head injury, sufficiently takes away the force of
submission of learned Advocate for accused no.2 and, therefore, we
cannot accept the said submission.
31 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
38. The next submission is that failure to explain injuries to
the accused and Swapnil (PW 6) - injured eye-witness amounts to
suppression of facts. In our opinion, the injuries suffered by Swapnil
(PW 6)- injured eye witness and accused, being minor injuries and
they were not required to be explained by the prosecution. In our
opinion, cogent and reliable evidence of four eye-witnesses, cannot
be brushed aside on the ground of failure to explain minor and
insignificant injuries on accused. The learned Advocate for the
appellant, in support of his submission, relied upon the judgments of
this Court in Pandhari's case (supra), Gopal Ketkar (supra), Bhausaheb
Mahajan (supra) and Shivaji Guru Naik (supra) . There cannot be
dispute about propositions laid down by the Hon'ble Supreme Court
that suppression to explain injuries to the accused is a factor, which the
Court needs to consider alongwith other circumstances. But, in the
facts of the present case, the evidence on record shows that the injuries
suffered by the accused persons were minor injuries and were of
insignificant nature therefore the judgments relied by accused will be
of no help to them.
39. The learned Trial Judge has considered all the
submissions made before us in detail and has given detailed reasons
for not accepting the said submissions.
32 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
40. Since the evidence of four eye-witnesses show that the
accused no.2 intentionally inflicted axe blow fracturing skull of
deceased Pravin (deceased); testimonies of the Medical Expert shows
that head injury sustained by the deceased, inflicted by axe recovered
was the cause of death, sufficient to cause death in the ordinary course
of nature, both requisites of the third clause of Section 300 of the
Indian Penal Code are satisfied.
41. Having considered the circumstances mentioned above,
we are of the opinion that the Trial Court, after considering the entire
material, has believed the prosecution evidence to fix involvement of
the accused no.2 but, was not justified in convicting the accused no.2
under Part II of Section 304 of the Indian Penal Code.
42. The next question is whether the learned Trial Judge is
justified in acquitting the accused nos.1 and 3. The eye-witness Shobha
(PW 1) stated that during assault the accused no.3 dropped stick down
and caught Pravin (deceased) from backside. At that time, the accused
no.2 rushed there with an axe and gave blow of axe on Pravin but,
Pravin (deceased) avoided the same. At that time, the accused nos.1
and 3 were telling the accused no. 2 to give axe blows to Pravin
33 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
(deceased). At that time, the accused no.2 gave axe blow on the left
side of head of Pravin (deceased). Pravin (deceased) fell down to the
said blow and blood started oozing out from the head. Thereafter all
the accused ran away from there.
43. Swapnil (PW 6)- injured eye-witness and Amit (PW 8)
stated that the accused no.3 hit him (Swapnil) on the shoulder with
the help of stick and by putting the stick down caught Pravin
(decesed) from back side. The accused no.2 came there with an axe
and gave blow of axe on the head of Pravin (deceased). Pravin
(deceased) avoided that blow and at that time accused nos.1 and 3
told the accused no.2 to give blow of the axe on Pravin (deceased).
The accused no.2 gave axe blow on the head of Pravin (deceased) and
therefore, Pravin (deceased) sustained bleeding injury on his head and
fell down.
44. The evidence of eye-witness Shobha (PW 1), Swapnil
(PW 6) and Amit (PW 8) shows that the accused no.3 committed overt
act and caught Pravin (deceased) from back side and the accused no.1
told the accused no.2 to give axe blow to Pravin (deceased). A reading
of evidence of three eye-witnesses -Shobha (PW 1), Swapnil (PW 6)
and Amit (PW 8) shows that the evidence on record is sufficient to
hold that there was common intention amongst the accused nos.1 to 3
34 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
to kill Pravin. Therefore, the accused nos.1 and 3 are also liable to be
convicted having resort to Section 34 of the Indian Penal Code as the
prosecution has proved common intention of accused nos. 1 and 3 to
kill Pravin. The Hon'ble Apex Court in the case of Virendra Singh Vs.
State of Madhya Pradesh reported in (2010) 8 SCC 407 has laid
down the conditions to be fulfilled for attracting the offence under
Section 34 of the Indian Penal Code. The Hon'ble Supreme Court in
paragraph 40 has observed that the dominant feature of Section 34 of
the Indian Penal Code is the element of intention and participation in
action. This participation need not in all cases be by physical presence.
It is further observed in paragraph 40 that for attracting Section 34 of
the Indian Penal Code, it is not necessary that the prosecution must
prove that the act was done by particular or specified person.
45. The Hon'ble Apex Court in Gopi Nath @ Jhallar Vs. State
of U.P. reported in (2001) 6 SCC 620 observed in paragraph 8 as
under:
"8. We have carefully considered the submissions of the learned
counsel on either side. As for the challenge made to the
conviction under Section 302 read with Section 34 IPC, it is
necessary to advert to the salient principles to be kept into
consideration and often reiterated by this Court, in the matter of
invoking the aid of Section 34 IPC, before dealing with the
factual aspect of the claim made on behalf of the appellant.
35 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
Section 34 IPC has been held to lay down the rule of joint
responsibility for criminal acts performed by plurality of persons
who joined together in doing the criminal act, provided that
such commission is in furtherance of the common intention of
all of them. Even the doing of separate, similar or diverse acts
by several persons, so long as they are done in furtherance of a
common intention, render each of such persons liable for the
result of them all, as if he had done them himself, for the whole
of the criminal action be it that it was not overt or was only
covert act or merely an omission constituting an illegal
omission. The Section, therefore, has been held to be attracted
even where the acts committed by the different confederates are
different when it is established in one way or the other that all
of them participated and engaged themselves in furtherance of
the common intention which might be of a pre- concerted or
pre-arranged plan or one manifested or developed at the spur of
the moment in the course of the commission of the offence. The
common intention or the intention of the individual concerned
in furtherance of the common intention could be proved either
from direct evidence or by inference from the acts or attending
circumstances of the case and conduct of the parties. The
ultimate decision, at any rate, would invariably depend upon the
inferences deducible from the circumstances of each case".
46. Keeping in view the law laid down by the Hon'ble
Supreme Court on the application of Section 34 of the Indian Penal
Code, we have reached the conclusion that the prosecution has proved
beyond doubt the commission of offence under Section 302 read with
Section 34 of the Indian Penal Code by the accused nos.1 and 3.
36 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
47. We have no reservations in observing that in reaching the
said conclusion, we have borne in mind the time-honoured principles,
which this Court keeps in mind while interfering in appeal against
acquittal namely that the inference only be made, if either assessment
of evidence by the acquitting Court is grossly unreasonable or the
impugned judgment of acquittal suffers from manifest illegality, which
has occasioned failure of justice. We have kept in mind the golden rule
that if two views are equally reasonable; one of acquittal and one of
conviction then mere circumstance that this Court is inclined to take
later view would be no ground to reverse the judgment of acquittal.
In the result, we pass the following order:-
ORDER
(i) Criminal Appeal Nos.237/2018 and 637/2019 are allowed
and Criminal Appeal No.568/2017 is dismissed.
(ii) The acquittal of respondent/accused no.1 - Maroti s/o
Kisanji Bite and respondent/accused no.3 - Devanand Maroti Bite vide
impugned judgment for offence punishable under Section 302 read
with Section 34 of the Indian Penal Code is set aside.
(iii) The respondent/accused no.1 - Maroti s/o Kisanji Bite
and respondent/accused no.3 - Devanand Maroti Bite are found guilty
of having committed offence under Section 302 read with Section 34
37 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
of the Indian Penal Code and are directed to suffer imprisonment for
life.
(iv) The respondent/accused no.1 - Maroti s/o Kisanji Bite
shall pay fine of Rs.50,000/-, in default to undergo rigrious
imprisonment for six months.
(v) The respondent/accused no.3 - Devanand Maroti Bite
shall pay fine of Rs.50,000/-, in default to undergo rigrious
imprisonment for six months.
(vi) The conviction of the respondent/accused no.2 - Devendra
Maroti Bite recorded vide impugned judgment for offence punishable
under Section 304 Part II of the Indian Penal Code is set aside. Order
of fine of Rs. 5000/- passed by Trial Court is maintained.
(vii) The respondent/accused no.2 - Devendra Maroti Bite is
found guilty of having committed offence punishable under Section
302 read with Section 34 of the Indian Penal Code and is directed to
suffer imprisonment of life.
(viii) Bail bonds, if any, of the accused nos.1 and 3 stand
cancelled.
(ix) Muddemal property be disposed of as per the order of the
Sessions Court.
38 cri.appel 568.17, 237.18 and 637.19 (1) (1).odt
All Criminal Appeals are disposed accordingly.
JUDGE JUDGE
48. At this stage, Shri Sharma, learned Advocate for the
appellants prays for time of six weeks to enable the accused nos.1 to 3
to surrender. Shri T.A.Mirza, learned Additional Public Prosecutor for
the respondent - State has no objection for grant of time to the
accused nos.1 to 3 to surrender.
Therefore, considering the facts and circumstances of the
present case, the accused nos.1 to 3 are granted time of six weeks
from today to surrender. If, the accused nos.1 to 3 fail to surrender till
4th May, 2021, the State of Maharashtra shall take immediate steps to
arrest the accused nos.1 to 3 and produce them in jail, subject to any
order to the contrary passed by the Hon'ble Apex Court.
JUDGE JUDGE
Ambulkar
