Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR
CRIMINAL APPEAL NO.175/1993
Prabhakar s/o Zabaji @ Sahebrao Sirsat
aged about 26 years,
R/o Apoti Khurd,
Tq. & District Akola .. APPELLANT
(Accused)
V e r s u s .
The State of Maharashtra,
through Police Station Officer,
Police Station Barshi Takli. .. RESPONDENT
(Complainant)
Mr. M.I. Dhatrak, Advocate for the Appellant.
Mr. D.B. Patel, A.P.P. for the Respondent.
...
CORAM : K. J. ROHEE & S.R.DONGAONKAR, JJ
DATE OF RESERVING THE JUDGEMNT: JULY 5, 2007.
DATE OF PRONOUNCING THE JUDGMENT: JULY 11, 2007.
...
JUDGMENT : ( per K.J. Rohee, J.)
1. By this appeal the appellant challenges his conviction for
the offences punishable under Sections 302 and 307 of IPC and
punishment thereunder by the Additional Sessions Judge, Akola
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in Sessions Trial No. 244/1993 decided on 17.4.1993.
2. The appellant was tried for the offence punishable
under Section 302 of IPC for having committed murder of
Kamlabai Shankar Sirsat, aged about 55 years and Dinesh
Shankar Sirshat, aged about 25 years. He was also tried for the
offence of attempt to commit murder of Shankar Kashiram
Shrisat aged about 65 years. Other four accused persons were
tried for abetting the appellant for committing those offences.
3. Accused No.2 Zabaji @ Sahebrao, accused no.3
Pandurang and PW11 Shankar Kashiram are real brothers. The
appellant and accused no.4 Bhaskar are the sons of accused No.
2 Zabaji @ Sahebrao. Accused no.5 Miraji is the son-in-law of
accused no.3 Pandurang. Kamlabai (deceased) was the wife of
Shankar ( PW11). Shankar and Kamlabai were having four sons
and two daughters namely Dilip(PW2) , Dinesh (deceased),
Ganesh and Ramesh (PW4), Sou. Manda and Ku. Vandana. PW3
Pushpa is the widow of deceased Dinesh. Accused no.2 Zabaji @
Sahebrao, accused no.3 Pandurang and PW11 Shankar were
residing separate. The houses of accused no.2 Zabaji @
Sahebrtao and PW11 Shankar were adjacent to each other.
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There was some dispute between accused no.2 Zabaji @
Sahebrao and PW11 Shankar about partition of the joint family
land and their relations were not cordial. They often used to
quarrel with each other. The appellant is serving in Military.
Whenever he used to come on leave, he used to abuse and
threaten PW11 Shankar and his family members with life.
4. The marriage of accused no.4 Bhaskar took place on
23.3.1992. The appellant had come on leave for the marriage.
The marriage was solemnized at village Tandali. The marriage
party returned to village Apoti Khurd on the same day and on the
next day i.e. on 24.3.1992 there was dinner for the invitees.
5. In the evening of 24.3.1992 the appellant started
abusing PW11 Shankar and his family members. Shankar and
Kamlabai had gone to the house of accused to tell them not to
abuse. Thereupon there was quarrel. The people who were
present there pacified them. The appellant was tied and was
put in a room.
6. It is alleged that in the midnight the appellant came
on the roof of the house of PW11 Shankar with a spear in his
hand. He was abusing. At that time Kamlabai and her sons were
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searching her Mangalsutra which was lost. Hearing the abuses,
they came near the bathroom situated in the courtyard of the
house of PW11 Shankar. They saw that the appellant was
abusing and breaking the tiles of the roof. The wife and son of
Dinesh were in the house. Apprehending injuries to them,
Dinesh rushed towards the house. The appellant jumped down
and hit Dinesh with the spear. When Kamlabai intervened, the
appellant also hit her with the spear on her stomach. She fell
down. Thereafter PW11 Shankar tried to intervene. The
appellant assaulted him with the same spear. It is alleged that
at that time other accused persons were in the lane and were
instigating the appellant to kill the members of PW11 Shankar’s
family. After assaulting Dinesh, Kamlabai and Shankar, the
appellant threw the spear there and ran away from the place.
He went to the house of Keshav Sirsat (PW5) and slept there.
PW2 Dilip rushed to the house of the Police Patil namely PW7
Kailash Apotikar and told him about the incident. The Police Patil
asked him to lodge report with the Police. Thereupon PW2 Dilip
went to Police Station Borgaon Manju and lodged report (Exh.32).
On the basis of the said report, Crime No. 49/1992 under Section
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302 of IPC was registered against the appellant. PSI Gawande
(PW12) visited the place of incident. Usual investigation was
undertaken. PW9 Dr. Agrawal ,Medical Officer, Civil Hospital,
Akola conducted autopsy on the bodies of Kamlabai and Dinesh.
The appellant was arrested. The clothes of the appellant as
well as of PW11 Shankar were seized. After completion of
investigation, the accused were charge sheeted.
7. The defence of the appellant is that at the time of
dinner at his house there was quarrel between Kamlabai and the
family members of his family. When the appellant went to
intervene, Shankar (PW11), Dilip (PW2), Dinesh (deceased) and
others assaulted him. They hit his head on the ground due to
which blood started oozing from his nose, ears and head. The
appellant was tied and locked in a room. Due to assault, the
appellant became unconscious. On the next day in the morning,
the Police came to his house , tied him and arrested him.
8. The prosecution examined 15 witnesses. PW11 Shankar
is the injured. PW2 Dilip and PW4 Ramesh (sons of Shankar ),
PW3 Pushpa (widow of deceased Dinesh) and PW10 Indubai
(occupant of the house of PW11 Shankar) are the eye witnesses.
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PW5 Keshav Sirsat is the person in whose house the appellant
had slept after the alleged incident. PW9 Dr. Agrawal conducted
autopsy on the bodies of Kamlabai and Dinesh. PW15 Dr. Kalve,
Medical Officer, Main Hospital, Akola examined PW11 Shankar.
PW12 PSI Gawande and PW14 PI Jadhav are the investigating
officers. The remaining four are other witnesses.
9. The trial Court held that the prosecution proved
homicidal death of Kamlabai and Dinesh. The prosecution also
proved that the appellant committed murder of Kamlabai and
Dinesh and also attempted to commit murder of Shankar. The
prosecution, however, failed to prove that the remaining
accused abetted the commission of offence by the appellant.
Accordingly the trial Court convicted the appellant and acquitted
the remaining accused. The said conviction is under challenge.
10. We have heard Mr. M. I. Dhatrak, Advocate for the
appellant and Mr. D.B. Patel, APP for the State. We have also
gone through the record and proceedings of the sessions trial
with the assistance of the learned counsel.
11. Mr. Dhatrak, the learned counsel for the appellant
submitted that in fact the appellant was beaten by Shankar,
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Kamlabai and their sons. The appellant was seriously injured in
the said assault. He was tied and locked in a room. He fell
unconscious. On the next day morning he was arrested by the
Police. Mr. Dhatrak submitted that the prosecution has not
explained the injuries found on the person of the appellant . In
the absence of such explanation, it will have to be held that the
prosecution has suppressed the genesis of the incident and that
the appellant did not assault Shankar , Kamlabai or Dinesh. He
urged that the trial Court was wrong in holding that the
appellant assaulted Kamlabai and Dinesh and is responsible for
committing their murder, so also the trial Court wrongly held that
the appellant assaulted PW11 Shankar and attempted to commit
his murder. Mr. Dhatrak submitted that there is no material to
sustain the conviction of the appellant and that the appellant is
entitled to be acquitted.
12. Mr. D.B. Patel, the learned APP, on the other hand
justified the impugned judgment. He emphatically submitted
that there is reliable evidence on record establishing the guilt of
the appellant beyond doubt and that the trial Court rightly
convicted the appellant . He submitted that the appeal preferred
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by the appellant deserves to be dismissed.
13. The inquest panchanama (Exh.21) in respect of the body
of Kamlabai shows that there was mark of thorough injury
extending from right side of the body upto left side of the body
through which intestine was protruded was noted. There was
bleeding and the injury was measuring about 2”. PW9 Dr.
Agrawal who conducted autopsy on the body of Kamlabai noted
the following injuries :
i) Incised perforating wound on right
lateral chest in mid clavicular line at right
hypochondriac level 6 c.m. X 3 cm X opening
abdominal cavity. Colon was seen protruding
along with part of mesocolon;
ii) Incised perforating wound on left
lateral lower chest in mid-clavicular line at left
hypochondriac area , size 4 cm X 2 cm X opening
abdominal cavity and omentum was seen
coming out of the wound.
Dr. Agrawal opined that the probable cause of death was
haemorrhagic shock. Dr. Agrawal also stated that those injuries
were sufficient in the ordinary course of nature to cause death of
the injured. Dr. Agrawal stated that these injuries might have
been caused by hard and sharp object like spear (Article 7).
14. Inquest panchanama (Exh.22) in respect of the body of
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Dinesh shows that the following injuries were noted:
i) Deep injury measuring 2” in length on
the back near left side;
ii) Deep injury measuring 1 ½ ” on right
buttock;
iii) Injury measuring 1” in length on right
wrist and
iv) Injury measuring ½ ” in length on left
side of chest.
Dr. Agrawal who conducted autopsy on the body of Dinesh noted
following injuries:-
i) Incised wound on right hip lateral aspect
oblique of size 3 cm X 1 ½ cm 1 ½ cm and
going upto the femur bone;
th
ii) Incised perforating wound in 5
intercostal space just lateral to left border of
sternum size 1 ½ cm X ½ cm X opening
chest;
iii) Oblique incised wound on left
paraspinal area of size 5cm X 3cm X upto
muscles.
iv) Incised wound on right forearm medio-
posterior aspect size 1 ½ cm X 0.5 cm x 0.05 cm.
Dr. Agrawal opined that the probable cause of death was
haemorrhagic shock due to heart injury. Dr. Agrawal stated that
injury nos. (ii) and (iii) were sufficient in the ordinary course to
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cause death of the injured. Dr. Agrawal stated that these injuries
might have been caused by hard and sharp object like spear
(Article 7). The evidence of Dr. Agrawal was not challenged by
the defence. Hence it has been proved that Kamlabai and Dinesh
met with homicidal death.
15. Regarding injury of PW11 Shankar, the evidence of PW15
Dr. Kalve shows that he examined Shankar on 25.3.1992 at about
2.46 a.m. and found the following injuries:-
i) Incised wound over left arm-upper
backside measuring 1 ½ ” X ½ ”X muscle deep;
ii) Incised wound over back lower side
renal angle measuring 1” X ½” X
muscle deep
Dr. Kalve stated that those injuries might have been caused by
hard and cutting object like spear (Article 7). During cross-
examination, Dr. Kalve stated that the injuries were simple
injuries and that there was no injury on the vital part of the body.
In view of this evidence, it cannot be said that there was an
attempt to commit murder of PW11 Shankar. Therefore, there
would not be an offence under Section 307 of IPC but the
offence would be voluntarily causing hurt by dangerous weapon
punishable under Section 324 of IPC.
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16. As regards the incident in which Kamlabai, Dinesh and
PW11 Shankar were injured, the prosecution adduced the
evidence of PW11 Shankar Kashiram Sirsat, PW2 Dilip Shankar
Sirsat, PW4 Ramesh Shankar Sirsat, PW3 Pushpa wd/o Dinesh
Sirsat and PW10 Indubai w/o Gautam Wankhede. The gist of
their evidence is that after the marriage of accused no.4 Bhaskar
was solemnized, there was dinner at his house on 25.3.1992.
Though the PWs and the accused persons are thickly related the
PWs were not invited for the dinner obviously because there was
dispute between the PWs and the accused persons about
property. On that day at about 8/9 p.m. there was quarrel
between Kamlabai and the sisters of the appellant. At that time
the appellant abused Kamlabai and threatened her with life. The
people who gathered there took away the appellant , tied him by
rope and kept him in the house. After couple of hours in the
midnight the appellant started abusing the PWs and threatening
them. The appellant climbed the roof of the house of the PWs
with a spear in his hand. He was breaking the tiles of the roof.
Thereafter he descended from the roof on the ground and firstly
assaulted Dinesh with spear, thereafter Kamlabai and lastly PW11
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Shankar. The appellant threw the spear at the place of incident
and ran away.
17. All these witnesses are most natural witnesses. Their
presence at the time of incident at their house cannot be
doubted. The evidence of the above PWs is consistent with each
other. The testimony of PW2 Dilip is also corroborated by the
report (Exh.32) lodged by him at P.S. Borgaon Manju immediately
after the incident. It may be noted that there is prompt reporting
of the incident inasmuch as the offence was registered at 1 a.m.
at the Police Station which is at a distance of 15 kms. from village
Apoti Khurd. The report described the incident about assault by
the appellant on Dinesh, Kamlabai and Shankar. There is some
variance in the deposition of these PWs. However, the trial Court
rightly observed that in the given circumstances it cannot be said
to be of substantial nature so as to discard their evidence.
18. It may further be noted that the prosecution has also
proved the letter (Exh.31) sent by the appellant to PW2 Dilip
which contained threatening language. Thus the said letter also
corroborates the evidence of the PWs.
19. The above evidence is also corroborated by PW5 Keshav
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Baban Sirsat who stated that he resides at village Apoti Bz.
which is at a distance of about 1 Km. from village Aporti Khurd.
On the date of incident in the mignight the appellant had come to
his house and called him. PW Keshav got up and opened the
door. The appellant asked him for water and PW Keshav served
him water. The appellant told PW Keshav that he would sleep at
his house. PW Keshav gave him gunny bag to sleep. Thereafter
PW Keshav and the appellant slept in the courtyard of the house.
At that time PW Keshav found that the clothes of the appellant
were stained with blood. PW Keshav asked about the blood
stains, but the appellant did not state anything. In the morning
PW Keshav again asked the appellant about the blood stains on
his clothes. At that time the appellant told him that he
committed two murders. By saying so, the appellant again slept.
PW Keshav went to Police Patil and informed him about it.
Thereafter Police came and arrested the appellant.
20. The evidence of PW5 Keshav is corroborated by the
Police Patil namely PW6 Baliram Raghoji Sirsat. PW Baliram
deposed that he is the Police Patil of the village Apoti Bk. since
last 14 years. On 25.3.1992 at around 6/6.30 a.m. PW Keshav
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had come to his house and told him that the appellant is in his
house and that the appellant himself told that he committed two
murders. PW Baliram met PSI Gawande who had come for
inquiry about those murders. PW Baliram told him about the
information received by him from PW Keshav. Thereafter the
Police arrested the appellant at the house of PW Keshav in the
presence of PW Baliram. The clothes of the appellant were
stained with blood. There was blood on his forehead also.
21. The above evidence establishes beyond doubt that the
appellant entered the courtyard of the house of the PWs and
assaulted Dinesh, his mother Kamlabai and his father Shankar
with spear , injured them and that Dinesh and Kamlabai
succumbed to those injuries. Thus the appellant committed an
offence under Section 302 and 324 of IPC. The trial Court was
wrong in holding that offence under Section 307 of IPC was
proved. Hence the conviction of the appellant under Section 307
of IPC requires to be modified to that of Section 324 IPC.
22. It was urged by Mr. Dhatrak, the learned counsel for the
appellant, that the prosecution has not explained the injuries on
the person of the appellant and as such the prosecution
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suppressed material evidence which would affect the testimony
of the PWs. In this regard the learned counsel relied on the
following cases :
i) D.V. Shanmugham & Anr .vs. State of A.P.
(1997) 5 Supreme Court Cases 349 (A);
ii) Lakhwinder Singh & Ors. .vs. State of Punjab
(2002) 10 Supreme Court Cases 295 (A);
iii) State of U.P. .vs. Ram Bahadur Singh & ors.
(2004) 9 Supreme Court Cases 310 (E).
The first decision above shows that failure to explain injuries on
the accused assumes importance where evidence consists of
interested and inimical witnesses. However, the prosecution is
not obliged to explain minor and superficial injuries sustained by
the accused , so also where the evidence is absolutely clear,
cogent and consistent, failure to explain injuries on accused is
not fatal. The remaining decisions are also on the same line.
23. In the present case it seems that when the appellant
was arrested there were injuries on his head, forehead, nose, left
shoulder and on back. He was immediately referred to the
Medical Officer, Borgaon Manju vide requisition Exh.61.
Accordingly the Medical Officer examined the appellant on
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25.3.1992 in the noon and found incised wound on central of the
forehead 1 ½ ” in length and bone deep. There was bleeding
from nose, ear and sputum. He was referred to Main Hospital ,
Akola for further investigation and treatment. The requisition
and medical certificate are admitted by the appellant. Hence it
cannot be said that the prosecution suppressed the injuries on
the person of the appellant. Secondly the evidence on record
shows that before the incident in question there was quarrel
between Kamlabai and sisters of the appellant. The appellant
intervened and threatened Kamlabai. At that time people
gathered there, overpowered the appellant, tied him by rope and
placed him in a room. Thereafter the appellant untied himself,
came out of the room and climbed the roof of the house of the
PWs. It seems that in the said commotion the appellant might
have sustained those injuries. So the injuries on the person of
the appellant would not render the evidence of PWs
untrustworthy and would not show that the deceased or the
injured PWs were the aggressors. Thus we find that there is no
force in the appeal. We, therefore, pass the following order:
i) The appeal is partly allowed.
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ii) The conviction and sentence of the appellant for the
offence punishable under Section 302 of IPC is confirmed. The
conviction of the appellant under Section 307 of IPC is modified to
that under Section 324 of IPC and he is sentenced to suffer R.I.
for 3 years and to pay fine of Rs.5,000/- in default to suffer R.I. for
6 months. Both the sentences shall run concurrently.
iii) The appellant to surrender to serve out the sentence
within four weeks from today.
(S.R.DONGAONKAR, J.) ( K. J. ROHEE, J. )
...
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR
CRIMINAL APPEAL NO.175/1993
Prabhakar s/o Zabaji @ Sahebrao Sirsat
aged about 26 years,
R/o Apoti Khurd,
Tq. & District Akola .. APPELLANT
(Accused)
V e r s u s .
The State of Maharashtra,
through Police Station Officer,
Police Station Barshi Takli. .. RESPONDENT
(Complainant)
Mr. M.I. Dhatrak, Advocate for the Appellant.
Mr. D.B. Patel, A.P.P. for the Respondent.
...
CORAM : K. J. ROHEE & S.R.DONGAONKAR, JJ
DATE OF RESERVING THE JUDGEMNT: JULY 5, 2007.
DATE OF PRONOUNCING THE JUDGMENT: JULY 11, 2007.
...
JUDGMENT : ( per K.J. Rohee, J.)
1. By this appeal the appellant challenges his conviction for
the offences punishable under Sections 302 and 307 of IPC and
punishment thereunder by the Additional Sessions Judge, Akola
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in Sessions Trial No. 244/1993 decided on 17.4.1993.
2. The appellant was tried for the offence punishable
under Section 302 of IPC for having committed murder of
Kamlabai Shankar Sirsat, aged about 55 years and Dinesh
Shankar Sirshat, aged about 25 years. He was also tried for the
offence of attempt to commit murder of Shankar Kashiram
Shrisat aged about 65 years. Other four accused persons were
tried for abetting the appellant for committing those offences.
3. Accused No.2 Zabaji @ Sahebrao, accused no.3
Pandurang and PW11 Shankar Kashiram are real brothers. The
appellant and accused no.4 Bhaskar are the sons of accused No.
2 Zabaji @ Sahebrao. Accused no.5 Miraji is the son-in-law of
accused no.3 Pandurang. Kamlabai (deceased) was the wife of
Shankar ( PW11). Shankar and Kamlabai were having four sons
and two daughters namely Dilip(PW2) , Dinesh (deceased),
Ganesh and Ramesh (PW4), Sou. Manda and Ku. Vandana. PW3
Pushpa is the widow of deceased Dinesh. Accused no.2 Zabaji @
Sahebrao, accused no.3 Pandurang and PW11 Shankar were
residing separate. The houses of accused no.2 Zabaji @
Sahebrtao and PW11 Shankar were adjacent to each other.
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There was some dispute between accused no.2 Zabaji @
Sahebrao and PW11 Shankar about partition of the joint family
land and their relations were not cordial. They often used to
quarrel with each other. The appellant is serving in Military.
Whenever he used to come on leave, he used to abuse and
threaten PW11 Shankar and his family members with life.
4. The marriage of accused no.4 Bhaskar took place on
23.3.1992. The appellant had come on leave for the marriage.
The marriage was solemnized at village Tandali. The marriage
party returned to village Apoti Khurd on the same day and on the
next day i.e. on 24.3.1992 there was dinner for the invitees.
5. In the evening of 24.3.1992 the appellant started
abusing PW11 Shankar and his family members. Shankar and
Kamlabai had gone to the house of accused to tell them not to
abuse. Thereupon there was quarrel. The people who were
present there pacified them. The appellant was tied and was
put in a room.
6. It is alleged that in the midnight the appellant came
on the roof of the house of PW11 Shankar with a spear in his
hand. He was abusing. At that time Kamlabai and her sons were
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searching her Mangalsutra which was lost. Hearing the abuses,
they came near the bathroom situated in the courtyard of the
house of PW11 Shankar. They saw that the appellant was
abusing and breaking the tiles of the roof. The wife and son of
Dinesh were in the house. Apprehending injuries to them,
Dinesh rushed towards the house. The appellant jumped down
and hit Dinesh with the spear. When Kamlabai intervened, the
appellant also hit her with the spear on her stomach. She fell
down. Thereafter PW11 Shankar tried to intervene. The
appellant assaulted him with the same spear. It is alleged that
at that time other accused persons were in the lane and were
instigating the appellant to kill the members of PW11 Shankar’s
family. After assaulting Dinesh, Kamlabai and Shankar, the
appellant threw the spear there and ran away from the place.
He went to the house of Keshav Sirsat (PW5) and slept there.
PW2 Dilip rushed to the house of the Police Patil namely PW7
Kailash Apotikar and told him about the incident. The Police Patil
asked him to lodge report with the Police. Thereupon PW2 Dilip
went to Police Station Borgaon Manju and lodged report (Exh.32).
On the basis of the said report, Crime No. 49/1992 under Section
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302 of IPC was registered against the appellant. PSI Gawande
(PW12) visited the place of incident. Usual investigation was
undertaken. PW9 Dr. Agrawal ,Medical Officer, Civil Hospital,
Akola conducted autopsy on the bodies of Kamlabai and Dinesh.
The appellant was arrested. The clothes of the appellant as
well as of PW11 Shankar were seized. After completion of
investigation, the accused were charge sheeted.
7. The defence of the appellant is that at the time of
dinner at his house there was quarrel between Kamlabai and the
family members of his family. When the appellant went to
intervene, Shankar (PW11), Dilip (PW2), Dinesh (deceased) and
others assaulted him. They hit his head on the ground due to
which blood started oozing from his nose, ears and head. The
appellant was tied and locked in a room. Due to assault, the
appellant became unconscious. On the next day in the morning,
the Police came to his house , tied him and arrested him.
8. The prosecution examined 15 witnesses. PW11 Shankar
is the injured. PW2 Dilip and PW4 Ramesh (sons of Shankar ),
PW3 Pushpa (widow of deceased Dinesh) and PW10 Indubai
(occupant of the house of PW11 Shankar) are the eye witnesses.
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PW5 Keshav Sirsat is the person in whose house the appellant
had slept after the alleged incident. PW9 Dr. Agrawal conducted
autopsy on the bodies of Kamlabai and Dinesh. PW15 Dr. Kalve,
Medical Officer, Main Hospital, Akola examined PW11 Shankar.
PW12 PSI Gawande and PW14 PI Jadhav are the investigating
officers. The remaining four are other witnesses.
9. The trial Court held that the prosecution proved
homicidal death of Kamlabai and Dinesh. The prosecution also
proved that the appellant committed murder of Kamlabai and
Dinesh and also attempted to commit murder of Shankar. The
prosecution, however, failed to prove that the remaining
accused abetted the commission of offence by the appellant.
Accordingly the trial Court convicted the appellant and acquitted
the remaining accused. The said conviction is under challenge.
10. We have heard Mr. M. I. Dhatrak, Advocate for the
appellant and Mr. D.B. Patel, APP for the State. We have also
gone through the record and proceedings of the sessions trial
with the assistance of the learned counsel.
11. Mr. Dhatrak, the learned counsel for the appellant
submitted that in fact the appellant was beaten by Shankar,
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Kamlabai and their sons. The appellant was seriously injured in
the said assault. He was tied and locked in a room. He fell
unconscious. On the next day morning he was arrested by the
Police. Mr. Dhatrak submitted that the prosecution has not
explained the injuries found on the person of the appellant . In
the absence of such explanation, it will have to be held that the
prosecution has suppressed the genesis of the incident and that
the appellant did not assault Shankar , Kamlabai or Dinesh. He
urged that the trial Court was wrong in holding that the
appellant assaulted Kamlabai and Dinesh and is responsible for
committing their murder, so also the trial Court wrongly held that
the appellant assaulted PW11 Shankar and attempted to commit
his murder. Mr. Dhatrak submitted that there is no material to
sustain the conviction of the appellant and that the appellant is
entitled to be acquitted.
12. Mr. D.B. Patel, the learned APP, on the other hand
justified the impugned judgment. He emphatically submitted
that there is reliable evidence on record establishing the guilt of
the appellant beyond doubt and that the trial Court rightly
convicted the appellant . He submitted that the appeal preferred
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by the appellant deserves to be dismissed.
13. The inquest panchanama (Exh.21) in respect of the body
of Kamlabai shows that there was mark of thorough injury
extending from right side of the body upto left side of the body
through which intestine was protruded was noted. There was
bleeding and the injury was measuring about 2”. PW9 Dr.
Agrawal who conducted autopsy on the body of Kamlabai noted
the following injuries :
i) Incised perforating wound on right
lateral chest in mid clavicular line at right
hypochondriac level 6 c.m. X 3 cm X opening
abdominal cavity. Colon was seen protruding
along with part of mesocolon;
ii) Incised perforating wound on left
lateral lower chest in mid-clavicular line at left
hypochondriac area , size 4 cm X 2 cm X opening
abdominal cavity and omentum was seen
coming out of the wound.
Dr. Agrawal opined that the probable cause of death was
haemorrhagic shock. Dr. Agrawal also stated that those injuries
were sufficient in the ordinary course of nature to cause death of
the injured. Dr. Agrawal stated that these injuries might have
been caused by hard and sharp object like spear (Article 7).
14. Inquest panchanama (Exh.22) in respect of the body of
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Dinesh shows that the following injuries were noted:
i) Deep injury measuring 2” in length on
the back near left side;
ii) Deep injury measuring 1 ½ ” on right
buttock;
iii) Injury measuring 1” in length on right
wrist and
iv) Injury measuring ½ ” in length on left
side of chest.
Dr. Agrawal who conducted autopsy on the body of Dinesh noted
following injuries:-
i) Incised wound on right hip lateral aspect
oblique of size 3 cm X 1 ½ cm 1 ½ cm and
going upto the femur bone;
th
ii) Incised perforating wound in 5
intercostal space just lateral to left border of
sternum size 1 ½ cm X ½ cm X opening
chest;
iii) Oblique incised wound on left
paraspinal area of size 5cm X 3cm X upto
muscles.
iv) Incised wound on right forearm medio-
posterior aspect size 1 ½ cm X 0.5 cm x 0.05 cm.
Dr. Agrawal opined that the probable cause of death was
haemorrhagic shock due to heart injury. Dr. Agrawal stated that
injury nos. (ii) and (iii) were sufficient in the ordinary course to
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cause death of the injured. Dr. Agrawal stated that these injuries
might have been caused by hard and sharp object like spear
(Article 7). The evidence of Dr. Agrawal was not challenged by
the defence. Hence it has been proved that Kamlabai and Dinesh
met with homicidal death.
15. Regarding injury of PW11 Shankar, the evidence of PW15
Dr. Kalve shows that he examined Shankar on 25.3.1992 at about
2.46 a.m. and found the following injuries:-
i) Incised wound over left arm-upper
backside measuring 1 ½ ” X ½ ”X muscle deep;
ii) Incised wound over back lower side
renal angle measuring 1” X ½” X
muscle deep
Dr. Kalve stated that those injuries might have been caused by
hard and cutting object like spear (Article 7). During cross-
examination, Dr. Kalve stated that the injuries were simple
injuries and that there was no injury on the vital part of the body.
In view of this evidence, it cannot be said that there was an
attempt to commit murder of PW11 Shankar. Therefore, there
would not be an offence under Section 307 of IPC but the
offence would be voluntarily causing hurt by dangerous weapon
punishable under Section 324 of IPC.
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16. As regards the incident in which Kamlabai, Dinesh and
PW11 Shankar were injured, the prosecution adduced the
evidence of PW11 Shankar Kashiram Sirsat, PW2 Dilip Shankar
Sirsat, PW4 Ramesh Shankar Sirsat, PW3 Pushpa wd/o Dinesh
Sirsat and PW10 Indubai w/o Gautam Wankhede. The gist of
their evidence is that after the marriage of accused no.4 Bhaskar
was solemnized, there was dinner at his house on 25.3.1992.
Though the PWs and the accused persons are thickly related the
PWs were not invited for the dinner obviously because there was
dispute between the PWs and the accused persons about
property. On that day at about 8/9 p.m. there was quarrel
between Kamlabai and the sisters of the appellant. At that time
the appellant abused Kamlabai and threatened her with life. The
people who gathered there took away the appellant , tied him by
rope and kept him in the house. After couple of hours in the
midnight the appellant started abusing the PWs and threatening
them. The appellant climbed the roof of the house of the PWs
with a spear in his hand. He was breaking the tiles of the roof.
Thereafter he descended from the roof on the ground and firstly
assaulted Dinesh with spear, thereafter Kamlabai and lastly PW11
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Shankar. The appellant threw the spear at the place of incident
and ran away.
17. All these witnesses are most natural witnesses. Their
presence at the time of incident at their house cannot be
doubted. The evidence of the above PWs is consistent with each
other. The testimony of PW2 Dilip is also corroborated by the
report (Exh.32) lodged by him at P.S. Borgaon Manju immediately
after the incident. It may be noted that there is prompt reporting
of the incident inasmuch as the offence was registered at 1 a.m.
at the Police Station which is at a distance of 15 kms. from village
Apoti Khurd. The report described the incident about assault by
the appellant on Dinesh, Kamlabai and Shankar. There is some
variance in the deposition of these PWs. However, the trial Court
rightly observed that in the given circumstances it cannot be said
to be of substantial nature so as to discard their evidence.
18. It may further be noted that the prosecution has also
proved the letter (Exh.31) sent by the appellant to PW2 Dilip
which contained threatening language. Thus the said letter also
corroborates the evidence of the PWs.
19. The above evidence is also corroborated by PW5 Keshav
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Baban Sirsat who stated that he resides at village Apoti Bz.
which is at a distance of about 1 Km. from village Aporti Khurd.
On the date of incident in the mignight the appellant had come to
his house and called him. PW Keshav got up and opened the
door. The appellant asked him for water and PW Keshav served
him water. The appellant told PW Keshav that he would sleep at
his house. PW Keshav gave him gunny bag to sleep. Thereafter
PW Keshav and the appellant slept in the courtyard of the house.
At that time PW Keshav found that the clothes of the appellant
were stained with blood. PW Keshav asked about the blood
stains, but the appellant did not state anything. In the morning
PW Keshav again asked the appellant about the blood stains on
his clothes. At that time the appellant told him that he
committed two murders. By saying so, the appellant again slept.
PW Keshav went to Police Patil and informed him about it.
Thereafter Police came and arrested the appellant.
20. The evidence of PW5 Keshav is corroborated by the
Police Patil namely PW6 Baliram Raghoji Sirsat. PW Baliram
deposed that he is the Police Patil of the village Apoti Bk. since
last 14 years. On 25.3.1992 at around 6/6.30 a.m. PW Keshav
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had come to his house and told him that the appellant is in his
house and that the appellant himself told that he committed two
murders. PW Baliram met PSI Gawande who had come for
inquiry about those murders. PW Baliram told him about the
information received by him from PW Keshav. Thereafter the
Police arrested the appellant at the house of PW Keshav in the
presence of PW Baliram. The clothes of the appellant were
stained with blood. There was blood on his forehead also.
21. The above evidence establishes beyond doubt that the
appellant entered the courtyard of the house of the PWs and
assaulted Dinesh, his mother Kamlabai and his father Shankar
with spear , injured them and that Dinesh and Kamlabai
succumbed to those injuries. Thus the appellant committed an
offence under Section 302 and 324 of IPC. The trial Court was
wrong in holding that offence under Section 307 of IPC was
proved. Hence the conviction of the appellant under Section 307
of IPC requires to be modified to that of Section 324 IPC.
22. It was urged by Mr. Dhatrak, the learned counsel for the
appellant, that the prosecution has not explained the injuries on
the person of the appellant and as such the prosecution
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suppressed material evidence which would affect the testimony
of the PWs. In this regard the learned counsel relied on the
following cases :
i) D.V. Shanmugham & Anr .vs. State of A.P.
(1997) 5 Supreme Court Cases 349 (A);
ii) Lakhwinder Singh & Ors. .vs. State of Punjab
(2002) 10 Supreme Court Cases 295 (A);
iii) State of U.P. .vs. Ram Bahadur Singh & ors.
(2004) 9 Supreme Court Cases 310 (E).
The first decision above shows that failure to explain injuries on
the accused assumes importance where evidence consists of
interested and inimical witnesses. However, the prosecution is
not obliged to explain minor and superficial injuries sustained by
the accused , so also where the evidence is absolutely clear,
cogent and consistent, failure to explain injuries on accused is
not fatal. The remaining decisions are also on the same line.
23. In the present case it seems that when the appellant
was arrested there were injuries on his head, forehead, nose, left
shoulder and on back. He was immediately referred to the
Medical Officer, Borgaon Manju vide requisition Exh.61.
Accordingly the Medical Officer examined the appellant on
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25.3.1992 in the noon and found incised wound on central of the
forehead 1 ½ ” in length and bone deep. There was bleeding
from nose, ear and sputum. He was referred to Main Hospital ,
Akola for further investigation and treatment. The requisition
and medical certificate are admitted by the appellant. Hence it
cannot be said that the prosecution suppressed the injuries on
the person of the appellant. Secondly the evidence on record
shows that before the incident in question there was quarrel
between Kamlabai and sisters of the appellant. The appellant
intervened and threatened Kamlabai. At that time people
gathered there, overpowered the appellant, tied him by rope and
placed him in a room. Thereafter the appellant untied himself,
came out of the room and climbed the roof of the house of the
PWs. It seems that in the said commotion the appellant might
have sustained those injuries. So the injuries on the person of
the appellant would not render the evidence of PWs
untrustworthy and would not show that the deceased or the
injured PWs were the aggressors. Thus we find that there is no
force in the appeal. We, therefore, pass the following order:
i) The appeal is partly allowed.
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ii) The conviction and sentence of the appellant for the
offence punishable under Section 302 of IPC is confirmed. The
conviction of the appellant under Section 307 of IPC is modified to
that under Section 324 of IPC and he is sentenced to suffer R.I.
for 3 years and to pay fine of Rs.5,000/- in default to suffer R.I. for
6 months. Both the sentences shall run concurrently.
iii) The appellant to surrender to serve out the sentence
within four weeks from today.
(S.R.DONGAONKAR, J.) ( K. J. ROHEE, J. )
...
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