Rayakya Vaharya Padvi And Anr vs The State Of Maharashtra
2024 Latest Caselaw 25845 Bom

Bombay High Court

Rayakya Vaharya Padvi And Anr vs The State Of Maharashtra on 19 September, 2024

Author: R.G. Avachat

Bench: R.G. Avachat

2024:BHC-AUG:24022-DB
                                                                           APEAL-168-21.odt




                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                             CRIMINAL APPEAL NO. 168 OF 2021

          1. Rayakya Vaharya Padvi
             Age: 41 years, Occu.: Nil,

          2. Datkya Vaharya Padvi
             Age: 36 years, Occu.: Nil,
             Both R/o Khai, Tq. Akkalkuwa,
             Dist. Nandurbar                                    ..APPELLANTS
                VERSUS
          State of Maharashtra
          Through Police Inspector,
          Police Station Molgi,
          Tq. Akkalkuwa, Dist. Nandurbar                        ..RESPONDENT
                                               ....
          Mr. A.R. Borulkar, Advocate for appellant (appointed through Legal Aid)
          Mr. S.D. Ghayal, Addl.P.P. for respondent - State
                                               ....

                                     CORAM         : R.G. AVACHAT AND
                                                     NEERAJ P. DHOTE, JJ
                                     RESERVED ON   : 21st AUGUST, 2024
                                     PRONOUNCED ON : 19th SEPTEMBER, 2024

          JUDGMENT ( PER : R.G. AVACHAT, J. ) :

1. The challenge in this appeal is to a judgment and order of

conviction and consequential sentence dated 14th March, 2018 passed by

Additional Sessions Judge, Shahada ('trial Court') in Sessions Case, No. 69

of 2014. Vide the impugned judgment and order the appellants have been

convicted fo the offence punishable under Section 302 read with Section 34

of the Indian Penal Code ('I.P.C.'), and therefore, sentenced to suffer

imprisonment for life and pay fine of Rs.5,000/- each. In default in payment

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of fine, they were further directed to undergo rigorous imprisonment for six

months.

2. The facts giving rise to the present appeal are as follows :-

The appellants are the real brothers. Jaysing and Pratap (both

deceased) were the real brothers. Urmila (widow of deceased Jaysing)

learnt that both the appellants were cultivating their (victim) land on the

morning of 16th July, 2014. She, therefore, alongwith her husband - Jaysing,

brother-in-law - Pratap, Pratap's widow - Kalubai went to the field. They

questioned the appellants as to why did they cultivate their land. The

appellants thereupon manhandled them. Appellant - Rayakya assaulted

Jaysing on his head and neck with an iron bar (crowbar), while appellant -

Datkya assaulted him with a big stick. Pratap intervened in the quarrel. Both

the appellants assaulted him as well with the articles in their hands viz. Iron

bar and big stick. On hearing hue and cry, neighbouring field owners arrived.

The appellants thereupon fled away.

3. Both the injured viz. Jaysing and Pratap were first rushed to

Government Hospital, Molgi. The Medical Officer there provided them first

aid. Then both of them were shifted to a hospital at Nandurbar. They were

further taken to a hospital at Dhule and ultimately shifted to a hospital in

Surat. On the day of the incident itself Urmila lodged the F.I.R. (Exh.22) with

Molgi Police Station.

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4. Crime vide C.R. No. 39 of 2014 was registered. On the next day

i.e. on 17th July, 2014 Pratap passed away and on the following day i.e. on

18th July, 2014 Jaysing breath his last in the hospital at Surat. Section 302 of

the I.P.C., therefore, came to be invoked in place of Section 307 of the I.P.C.

5. Crime was investigated. The appellants were arrested. Both of

them made disclosure statements pursuant to which an iron bar and wooden

stick came to be seized under the panchanamas (Exh.28 & 30). Crime

scene panchanama (Exh.26) was drawn. Inquest was conducted on the

mortal remains of both Jaysing and Pratap. Autopsy too was conducted at

the hospital in Surat itself. Statements of the persons acquainted with the

facts and circumstances of the case were recorded. Seized articles were

sent to R.F.S.L., Nashik for analysis and report. Upon completion of

investigation investigation, charge-sheet was filed against both the

appellants.

6. The trial Court framed charge (Exh.12) for the offences

punishable under Sections 302, 447, 504 and 506 read with Section 34 of the

I.P.C. The appellants pleaded not guilty. Their defence was of false

implication.

7. To bring home the charge, prosecution examined eight witnesses

and produced in evidence certain documents. The trial Court, on

appreciation of the same, convicted the appellants and consequentially

sentenced as stated above.

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8. Learned counsel for the appellants would submit that there was

quite difference between ploughing and sowing operation. The witnesses

examined by the prosecution were all related to the deceased. The seized

articles viz. Iron bar and stick did not bear blood stains. Our attention was

adverted to the C.A. reports (Exh.52) in that regard. According to learned

counsel, PW 2 - Kalusing did not witness the incident. Whatever he had

deposed to was hearsay. He gave admission to that effect in his cross-

examination. Then turning to the evidence of PW 6 - Kalubai (widow of

Pratap), he would submit that she too was not an eye witness. Other

witnesses, except PW 1 - Urmila, did not speak of her presence. She did not

accompany her injured husband to the hospital. The said conduct is

unnatural. He would further submit that the investigating officer did not make

enquiry as to whether there was a civil dispute between the appellants on the

one hand and the decease on the other. The medical officers, who treated

the deceased, have not been examined. Nor the medical papers of the

treatment extended to both of them have been placed on record. According

to him there is inconsistency inter se evidence of the prosecution witnesses.

The witnesses were not consistent with the appellants to have been armed

with particular articles. He would further submit that the articles allegedly

used in the commission of the crime were of day-to-day agricultural

implements. He, therefore, ultimately urged for allowing the appeal.

9. Learned A.P.P. would, on the other hand, submit that the case is

based on eye witness account. The deceased suffered injuries on their vital

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parts viz. head. Although the C.A. report do not support the prosecution

case, evidence of the eye witness go a long way to conclude the appellant to

have committed murders of their cousins on account of land dispute.

According to learned A.P.P., there is no reason to interfere with the

impugned order of conviction and consequential sentence.

10. Considered the submissions advanced. Perused the evidence on

record. Also perused the judgment impugned herein. Let us advert thereto

and appreciate the same.

11. It has been brought on record during cross-examination of PW 1 -

Urmila that one Mithya was the common ancestor. He had three sons, viz.

Bhanga, Vaharya and Motya. Mithya partitioned the agricultural land

amongst his three sons. The trio were cultivating their respective lands.

Damja and Jonda were the real brothers of the appellants. They were the

sons of Vaharya.

12. PW 1 - Urmila was the widow of Jaysing. Her oral evidence

indicates that on the given day i.e. on 16th July, 2014 she learnt the

appellants to have been cultivating their (victim) field. She, therefore,

alongwith her husband - Jaysing, brother-in-law - Pratap, his wife - Kalubai

(PW-6) went to the field to enquire the appellants as to why did they cultivate

their field. Thereupon the appellants manhandled them. Appellant - Datkya

assaulted on the neck and head of Jaysing with iron bar (crowbar), while

appellant - Rayakya assaulted with a big stick (dengara). He assaulted on

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his entire body. He (Jaysing) thereby became unconscious. Her brother-in-

law - Pratap intervened. He too was not spared. Both the appellants

assaulted him with the very articles. She and Kalubai, therefore, raised hue

and cry. Villagers Damjya, Dursing and Kalya rushed to the spot. The

appellants thereupon fled away.

13. It is further in her evidence that both, Jaysing and Pratap were

lying in the field for about 4-5 hours before they were shifted to Government

Hospital at Molgi. Then they were shifted to Civil Hospital Nandurbar from

Molgi. Again they were taken to Dhule Civil Hospital and ultimately admitted

to the Civil Hospital at Surat. According to her, she lodged the report of the

incident on the same day. She referred thereto. It is at Exhibit 22.

14. She was subjected to a searching cross-examination.

Relationship between the parties and their predecessors has been brought

on record. The same has been referred to hereinabove (Paragraph no.11).

She admitted that no suit was pending in any Court of law on account of

dispute over the land. The field in which the incident taken place was 300

feet away from her house. She could not state gut number or survey number

of the field in which the incident took place. She admitted that ploughing and

sowing operations are two different things. She admitted that the appellants

had not come to their residence or picked up quarrel any time prior to coming

to their field. She denied to have had picked up the quarrel with the

appellants. According to her, scuffle had taken place between the deceased

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and the appellants for about 2-3 minutes. The suggestions put to her in

cross-examination indicate the appellants to have appeared at the crime

scene. It is further in her evidence that scuffle took place for about 2-3

minutes. The incident lasted for about 5-6 minutes. Both the injured were

lying in the field unattended for about 5-6 hours before they were shifted to

the hospital. Before they were taken to the hospital, no villager had informed

the police about the incident. She denied to have had approached Molgi

Police Station post demise of her husband and brother-in-law. She was

confronted with the F.I.R. which is silent to state that it was a big stick

(dengara) with which one of the appellants had assaulted. Rest of the

questions put to her were in the nature of denying her evidence in

examination-in-chief.

15. PW 2 - Kalusing's evidence indicates that he was present in his

field by 10:00 in the morning on 16 th July, 2014. A fight took place between

the appellants on one hand and deceased on the other. Wives of Jaysing

and Pratap raised hue and cry. He, therefore, alongwith Dursing and Damjya

rushed to the spot. Both the appellants thereupon fled away. According to

him, the quarrel took place on account of a dispute over the field. The

injured were shifted first to the Government Hospital at Molgi and then to

different hospitals.

16. In his cross-examination, it was suggested to him that Jaysing and

Pratap had allotted big portion of land in partition. It was further suggested

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that all the four lands were at four different places. Each one was cultivating

the land of his share. He could not tell gut number of his own land and the

land in which the incident took place. According to him, the incident lasted

for half an hour. Before he reached the spot, the appellants fled away.

Learned counsel, therefore, meant to say that he was not an eye witness to

the incident. We are not in agreement with him, since his evidence indicates

that he was present in the neighbouring land wherefrom he could witness the

incident. His admission only suggests that the appellants had fled before he

reached the crime scene. He was confronted with his police statement

which is silent to state appellant - Rayakya was armed with a big stick

(dengara). He, however admitted that Urmila and Kalubai (widows of the

deceased) related him about the incident. He was present with Urmila while

the report was lodged at the concerned police station.

17. Evidence of this witness indicates that it was he, who had

accompanied Urmila to lodge the report the same day. It was he, who

helped to take the injured to the hospital. There is nothing to indicate that

there is any animosity between him and the appellants, for him to give false

evidence against them.

18. PW 3 - Daulatsing is the witness to the crime scene panchanama

(Exh.26), disclosure statements (Exh.27 and 29) made by the appellants -

Rayakya and Datkya respectively, pursuant to which wooden stick and iron

bar came to be recovered under seizure memo (Exh.28 and 30) respectively.

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We do not propose to rely on his evidence in extenso, since seized articles

did not bear blood stains. The so called disclosure statements made by the

appellants, therefore, could not be said to be relevant under Section 27 of the

Evidence Act. The crime scene panchanama (Exh.26) also does not indicate

marks of footprint or anything. It was rainy season. Nothing was seized from

the crime scene.

19. PW 4 - Dhursing's evidence is on the lines of the evidence of PW

2 - Kalusing. According to him, he way ploughing his field. On hearing

shouts he rushed where the incident took place. On having seen them, the

appellants fled. On his enquiry, Urmila told him as to how the incident took

place. It was he, who assisted to take the injured to the hospital at Molgi in a

jeep and then the injured were shifted to a hospital at Nandurbar. He

admitted in his cross-examination to have had not witnessed the dispute

between the appellants and the deceased. He denied to have not seen the

appellants fled away from the spot.

20. Close appreciation of the evidence of this witness may indicate

him to have not witnessed the incident. His evidence, however indicates that

he reached the crime scene immediately after the incident took place and

learnt about the same from the informant - Urmila.

21. PW 6 - Kalubai is the widow of Pratap. Her evidence is

consistent with the evidence of PW 1 - Urmila. It is in her evidence that she

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had accompanied Urmila, Jaysing and Pratap to their field on having learnt

the appellants cultivating the same. Her evidence further indicates that both

the appellants scuffled with Jaysing and Pratap. Appellant - Datkya

assaulted Jaysing with an iron rod, while appellant - Raykya assaulted with a

wooden stick. Her evidence further indicates that on hearing hue and cry,

Kalusing, Dursing and Damjya arrived. Her cross-examination further

indicates that Jaysing sustained injury to his leg. The leg was fractured. The

postmortem report (Exh.34), however indicates Jaysing to have not suffered

injury to his leg. He could not state the gut number of the land wherein the

incident took place. She did not accompany her husband (Pratap) to the

hospital.

22. PW 7 - Goraksh was the Assistant Police Inspector with Molgi

Police Station. He did investigation of the crime. He drew crime scene

panchanama (Exh.26). He also recorded disclosure statements made by

both the appellants and seized the articles accordingly. He admitted to have

not collected medical papers from the hospital at Molgi, Nandurbar or Dhule.

There were no injuries on the person of the appellants. He denied that

appellant - Raykya was unable to talk in Marathi. While PW 3 - Daulatsing,

panch witness testified that Raykya did not understand Marathi.

23. Appreciation of the evidence of the aforesaid witness indicates

that the appellants and the deceased were relatives of each other. A dispute

over an agricultural land was there amongst them. None of the prosecution

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witnesses, however could give the gut number of the land wherein the

incident took place. The appellants claimed that they were cultivating their

own land, while according to the informant, the appellants encroached on

their land, and therefore, on questioning them the incident took place.

Admittedly, the investigating officer did not collect any documentary evidence

in the nature of revenue record to indicate the land on which the incident took

place really belong to the deceased. It, therefore, appears that the trial Court

has acquitted the accused of Section 447 of the I.P.C. The F.I.R. (Exh.22)

has been lodged within hours of the incident. The same gets reinforced from

the evidence of PW 1 - Urmila. Other witnesses viz. PW 2, 4 and 6 have

also no reason to speak against the appellants, who were their close

relatives. As such, evidence of these witnesses lead us to undoubtedly

conclude that it were the appellants, who assaulted Jaysing and Pratap with

a wooden stick and an iron rod.

24. PW 5 - Dr.Patel was serving with New Hospital at Surat as a

resident doctor. His evidence indicates that he conducted postmortem

examination of the mortal remains of both the deceased. On external

examination of the body of Pratap, he noticed following injuries :-

"1) A surgically stitched would of size 8 c.m., stitched with 6 black coloured stitches, present over left parieto temporal region of scalp. Anterior inner end lies 7.5 c.m. above left supraorbital ridge and 7 c.m. left to midline. On removing stitches margins of wound are non adherent with red clotted blood present over it.

2) A surgically stitched wound of size 3 c.m., stitched with 3 black coloured suture present obliquely over lateral aspect of 1/3rd of right eyebrow, inner end lies 4 cm. right to midline.

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3) A surgically stitched wound of size 1 c.m., stitched with 1 black coloured suture present obliquely orver right side of forehead, 6 cm right to midline and 3 c.m above right supraorbital ridge. On removing stitch wound is bone deep and underlying bone fracture found. On removing of all above stitched wound, all wounds are bone deep and margins of all wound are irregular and contused with red clotted blood over it.

4) A palpable depressed communicated fracture of size 7 c.m. X 4 c.m. present over right fronto-parieto-temporal region."

25. While he conducted autopsy on the mortal remains of Jaysing on

18th July, 2014, he noticed following external injuries on his person :-

"(1) A surgically stitched wound of size 3 c.m., stitched with two black coloured stitches, present obliquely over left side of head, upper medial end is 8 cm. above left mastoid process and 13.5 c.m. left to mid line.

2) A surgically stitched wound of size 2.5 c.m., stitched with two black coloured stitches, present obliquely over left side of head.

Upper medial end is 9 c.m. above left mastoid process and 12.5 c.m. left to midline.

3) A surgically stitched wound of size 3.5. cm. stitched with 3 black colured stitches, present obliquely over left side of head, upper medial end is 16 c.m. above left supra orbital ridge and 7 c.m. left to mid line.

4) A surgically stitched wound of size 4 cm. stitched with 4 black coloured stitches, present obliquely over area behind left ear, upper posterior end is 0.5 c.m. above and 0.5 c.m. anterior to left mastoid process.

5) Bluish contusion of size 5 x 4 c.m. present over left side of neck, 3 c.m. below and 0.5 c.m. behind left mastoid process. On removing of stitches of all surgically stitched wounds margins are non adherent, irregular and contused with red clotted blood present over it."

Postmortem reports of both the deceased find place at Exhibits 34

and 35 respectively.

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26. His cross-examination indicates that it was Dr.Bharat Patel, who

had treated the deceased. He could not state whether the injuries suffered

by the deceased were result of a single blow or multiple blows. He even

could not state the age of the injuries. The cause of death of both, Jaysing

and Pratap was 'shock due to head injury'.

27. Now the question is whether this is an offence of murder or

culpable homicide not amounting to murder. True, learned counsel for the

appellants made no submissions in this regard. It is, however for the

prosecution to make out a case for sustaining conviction for the offence

punishable under Section 302 of the I.P.C.

28. In paragraph no. 59 of the Apex Court's judgment in case of

Anbazhagan Vs. State represented by the Inspector of Police, AIR 2023

SC 3660 it has been observed as under :-

"59. We may lastly refer to the decision of this Court in Pulicherla Nagaraju v. State of A.P., (2007) 1 SCC (Cri) 500, wherein this Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the Accused. This Court observed: (SCC pp. 457-58, para 29)

29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls Under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the Accused attempts to avoid the

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penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302, are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the Accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs 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 for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the Accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."

It is further observed in sub-paragraph no.7 of paragraph no.60

thereof as follows :-

"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:

(7) The distinction between culpable homicide (Section 299 of the Indian Penal Code) and murder (Section 300 of the Indian Penal Code) has always to be carefully borne in mind while dealing with a charge Under Section 302 of the Indian Penal Code. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the Indian Penal Code. But, even though none of the said five exceptions are

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pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the Indian Penal Code to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the Indian Penal Code, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described Under Section 299 of the Indian Penal Code."

29. Section 300 of the I.P.C. reads thus :-

"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--

2ndly.--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--

3rdly.--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--

4thly.--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."

Exception 4 thereof reads thus :-

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."

30. Admittedly, the appellants had not been to the house or place of

the deceased with deadly weapons to assault them. It is the deceased

alongwith their wives had been to the field on having learnt the appellants to

have been cultivating their (victim) land. The Investigating Officer made no

investigation to find the land which was allegedly cultivated by the appellants

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really belongs to the deceased. As such, the quarrel preceded between the

appellants on one hand and the deceased on the other. Even the witnesses

testified that a scuffle took place between both the sides. The weapons of

assault seized may not be the same which have been used by the

appellants, since the C.A. report (Exh.52) does not corroborate the same.

No sharp edged weapon was used. It is not the case of prosecution that the

appellants during quarrel left the place and fetched the articles to assault the

deceased therewith. It means the wooden stick and the iron rod were very

much there where they were working. It is not a case of premeditation. A

sudden fight ensued in a hit of passion upon sudden quarrel. True, the

nature of injuries indicates the same to have been caused on the vital part of

the body, head. The medical officer testified those were sufficient in ordinary

course of nature to cause death. In our view, therefore, it would be a case of

culpable homicide not amounting to murder, punishable under Section 304

Part I of the I.P.C. In the facts and circumstances of the case, we find that

ends of justice would be met if the appellants are sentenced to imprisonment

for eleven years. They have already undergone a little over ten years of

sentence.

31. For all the aforesaid reasons, we pass the following order :-

ORDER

(I) Criminal appeal is partly allowed.

(II) Impugned judgment and order dated 14th March, 2018 passed by Additional Sessions Judge, Shahada in Sessions Case No.

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69 of 2014, thereby convicting and sentencing the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, is hereby set aside.

(III) The appellants are convicted for the offence punishable under Section 304 Part I read with Section 34 of the Indian Penal Code, and therefore, sentenced to undergo rigorous imprisonment for eleven years and to pay fine of Rs.1,000/- (Rupees One Thousand) each, in default to suffer rigorous imprisonment for one month.

      ( NEERAJ P. DHOTE, J. )                       ( R.G. AVACHAT, J. )

SSD