Full Judgment Text
CRL.A. NO. 85 OF 2008 REPORTABLE
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 85 OF 2008
KRISHNAT BHIMRAO SHINDE & ANR. ..... APPELLANTS
VERSUS
STATE OF MAHARASHTRA & ANR. ..... RESPONDENTS
O R D E R
1. This appeal is directed against the concurrent
judgments of conviction and sentence of the appellants
for having committed an offence under Section 302 read
with Section 34 of the Indian Penal Code by two of the
four accused, the other two having chosen not to file
an appeal in this Court.
2. As per the prosecution story, the deceased
Sadashiv Kundalik Sataverkar was residing in village
Kakhe along with his wife Rajashri – P.W. 2 and their
children Pravin and Suraj. His elder brother P.W. 8 –
Mahadev and P.W. 10 – Sunita (sister-in-law of the
deceased), her mother-in-law P.W. 9 – Asha were also
residing in a nearby lane. Accused Sambhaji Bapu
Shinde, Tanaji Bapu Shinde, Krishnat Bhimrao Shinde are
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brothers whereas the fourth accused Babu Rao Bapu
Shinde was their cousin. As per the prosecution story,
the deceased had let out the open space in front of his
house to Tanaji Bapu Shinde -A2 for the purpose of
running a cycle shop. It appears, however, that A-2
had cast some aspersions on P.W. 2- Rajashri and when
this information was conveyed to P.W. 8 – Mahadev and
further to the deceased a quarrel had ensued between
Mahadev and the deceased on the one hand and A2 on the
other and as a consequence A-2 had been asked to
vacate the shop. A week prior to the incident in
question, A-1 Sambhaji Bapu Shinde had also
deliberately dashed his motor cycle against Suraj, the
son of the deceased, causing him minor injuries
whereupon the deceased had caught him by his collar and
given him a few slaps but on the intervention of those
who had gathered at the site, they had been separated.
A-1 had, however, left threatening the deceased with
th
dire consequences. At about 3:30 p.m. on 25
November, 1999, the deceased and P.W. 2 - Rajashri had
gone to Kodoli to the weekly bazaar and after making
their purchases they returned to their village Kakhe in
a jeep belonging to one Pandurang Shinde. They got
down near the bus stand and started walking towards
their residence and as they were doing so, P.W. 3,
Shivaji who too had a cycle shop called the deceased
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for sharing some pan. The deceased then went into the
shop while P.W. 2 – Rajashri waited for her husband a
short distance ahead by the side of the road. The
deceased then left Shivaji's shop to join his wife and
as he was on his way Rajshri heard shouts from the
rear and on looking that side saw the four accused
armed with various weapons attacking her husband. She
also noticed that Sambaji Bapu Shinde and Tanaji Bapu
Shinde were armed with an axe and sickle respectively
whereas the other two Krishnat Bhimrao Shinde and
Baburao Bapu Shinde were armed with lathis. The attack
was opened on the deceased by A1 and A2 and they caused
serious injuries on the neck and head of the deceased
with an axe and sickle and after he fell to the ground,
some injuries were caused to him by the other two
accused as well. P.W. 8 – Mahadev was immediately
informed about the incident by one B.R. Patil and he
too rushed to the scene of the crime and thereafter
accompanied by P.W. 2 – Rajashri, to police station
Kodoli and lodged the FIR at 5:30p.m. The police
officers reached the place of incident and made the
necessary enquiries and sent the dead body for its post
th
mortem examination. A2, A3 and A4 were arrested on 26
st
November, 1999 whereas A1 was arrested on the 1 of
December, 1999. On the completion of the investigation,
the accused were charged for an offence punishable
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under Section 302/34 of the IPC and as they pleaded
innocence, they were brought to trial. In support of
its case, the prosecution relied on 17 witnesses, the
primary one being P.W. 2 – Rajashri the solitary eye
witness whose statement was sought to be corroborated
by P.W. 8 – Mahadev, P.W. 9 Asha and P.W. 10 – Sunita
who had received the information about the incident
from Rajashri. All the other eye witnesses and others
relating to the circumstantial evidence were, however,
declared hostile at the trial. The trial court and
High Court relying on the statement of P.W. 2, P.W. 9
and P.W. 10, as supported by the evidence of P.W. 12
-Dr. Shrikant who had performed the post mortem, held
the accused guilty and sentenced them to imprisonment
for life under Section 302/34 of the IPC. An appeal
taken to the High Court was thereafter dismissed. As
already indicated, the present appeal has been filed
only at the instance of A3-Krishnat Bhimrao Shinde and
A4-Baburao Bapu Shinde, the two accused who are said to
have been armed with lathis.
Mr. R. Sundaravardhan, the learned senior
counsel for the appellants has raised several arguments
during the course of the hearing. He has first and
foremost pointed out that the evidence of P.W. 2 –
Rajashri, the solitary eye witness and the closest
relative of the deceased could not be believed without
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adequate corraboration and as all the independent
witnesses including some who had witnessed the
incident had been declared hostile, it was clear that
there was no credible evidence against the appellants.
He has further submitted that the reliance of the
courts below on the statements of P.W. - 8, P.W. 9 and
P.W. 10 as corroborating the statement of P.W. 2 was
also not called for as these three had not witnessed
the incident and had reached the place soon after the
murder had been committed and as they were also closely
related to the deceased their evidence was clearly
suspect. It has also been submitted by Mr.
Sundaravardhan that the eye witness account was not
supported by the medical testimony in as much that the
injuries said to have been caused with lathis were
obviously not lathi injuries as these were abrasions
whereas lathis would have caused only contrusions. He
has finally pleaded that the main role had been
ascribed to A1 and A2, non-appellants and as the
present appellants had been armed only with lathis the
question of the applicability of Section 34 of the IPC
to show their common intention with the main accused
had not been proved on record. He has in this
connection relied upon Dharam Pal v. State of Haryana
(1978) 4 SCC 440, Mohinder Singh & Anr. v. State of
Delhi AIR 1975 SC 1506 and Rajender Singh & Ors. v.
CRL.A. NO. 85 OF 2008 REPORTABLE
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State of Bihar (2000) 4 SCC 298.
Mr. Ravindra Kumar Adsure, the learned counsel
for the State of Maharashtra has, however, pointed out
that the FIR had been lodged within two hours of the
incident in which all details pertaining to what had
happened earlier and on the day in question had been
spelt out and the promptness of the FIR pointed towards
the truthfulness of the prosecution story. It has also
been pleaded that a perusal of the evidence of P.W. 2
as supported by the evidence of P.Ws. 8,9 and 10
clearly proved the case of the prosecution and merely
because they happened to be closely related to the
deceased was not a ground to disbelieve them more
particularly so as the bitterness between the families
had existed for sometime on account of the slander that
the accused had been spreading about Rajashri – P.W.2.
He has also pointed out that all the accused had come
fully armed to the place of incident and as Sambaji
Bapu Shinde -A1 the prime mover in the incident and who
had been beaten by the deceased on account of the
accident involving Suraj had held out a threat that he
would kill him one day and as all the accused were
closely related to each other, three of them being
brothers, and the fourth one being a cousin, had come
to the place of incident with weapons, the common
intention on the part of the accused to commit murder
CRL.A. NO. 85 OF 2008 REPORTABLE
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was writ large.
We have heard the learned counsel for the
parties and gone through the record very carefully.
P.W. 2 undoubtedly is the only eye witness of
the incident, the others having been declared hostile.
We, however, find absolutely no reason to disbelieve
her statement. We notice that the story which she
maintained even at the trial had been given by her in
the FIR lodged within two hours of the incident. We
also find from the record that she had conveyed the
information about the murder to P.Ws. 8, 9 and 10
almost immediately and they too have supported the
prosecution story in its entirity. It is true, as
contended by Mr. Sundaravardhan, that all these
witnesses are closely related to each other. To our
mind, however, in the face of the fact that
independent witnesses are reluctant to come forward and
this hard truth is exemplified by the facts of this
very case itself, we find absolutely no reason in
disbelieving the relation witnesses. On the contrary,
such witnesses would be loathe to leave out the true
assailants and to rope in innocent ones.
We also find from the record that at least two
different types of weapons had been used, cutting
weapons and those causing blunt injuries. As per the
statement of P.W. 2, A1 and A2 had been armed with
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weapons which could cause the incised wounds i.e. an
axe and a sickle whereas the appellants before us had
been armed with lathis which could cause abrasions
which are blunt weapon injuries. Mr. Sundaravardhan
has, however, dwelt on the ambivalence on the part of
P.W. 12 the doctor, with regard to the weapons used.
He has referred us to his statement that ordinarily
injuries with a lathi would cause contrusions. When
further questioned, however, the doctor reiterated that
abrasions could be caused with a blunt weapon as well.
Mr. Sundaravardhan has, however, placed special
emphasis on his submission that the facts did not
reveal the common intention amongst the accused. This
argument would have to be examined in the peculiar
facts of this case. It bears reiteration that all the
accused were very closely related to each other and the
quarrel had taken place between the two families on two
occasions prior to the murder incident and as a
consequence the cycle shop which had been opened in the
plot belonging to the deceased had been got vacated.
Likewise, the second incident with A1 deliberately
dashing his motor cycle against Suraj, the son of the
deceased, on which the deceased had beaten A-1 who had
in turn threatened the deceased with death was a
precursor to the murder. It is in this background that
the common intention of the accused would have to be
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gathered. It is true that some of the observations
relied upon by Mr. Sundaravardhan in the judgments
cited by him do support the views expressed by him but
it is also to be borne in mind that in criminal matters
the broad principles of law cannot be applied de hors
the facts of the case. In Dharam Pal's case (supra)
the accused had come armed with various weapons
including a gun (which Dharam Pal the main accused was
carrying) and this weapon was used to cause the fatal
injury whereas the conventional weapons carried by the
other two accused were, used to cause injuries to the
witnesses alone. It is in this situation that this
Court observed that a conviction under Section 302/34
IPC against these two accused could not be sustained.
Likewise, in Mahinder Singh's case (supra) this Court
disbelieved the story projected by the prosecution that
a threat had been held out against all of the accused
to kill the deceased. Rajender Singh's case too is
based on its own facts, and cannot be mechanically
applied.
We find in the case before us that the story
with regard to the earlier two incidents between the
complainant party and the accused party have to be
proved on record and these incidents had catalysed the
circumstances and led to the fatal attack on the
deceased. We are, therefore, are of the opinion that
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the matter has to be examined on its own facts and no
universal yard stick as to whether the common intention
has been made out or not can ever be applied or
attempted.
We find no merit in the appeal which is,
accordingly, dismissed.
..................J
[HARJIT SINGH BEDI]
..................J
[J.M. PANCHAL]
NEW DELHI
NOVEMBER 10, 2009.