Dismissed

Yusuf Alamash Daryavardi and Anr. v. State of Maharashtra.

Bombay HC3 Feb 2005APEAL/347/1989

Case brief

AI extract

What is this about?

The High Court of Bombay examined a criminal appeal challenging murder convictions. The court upheld the lower court's judgment, relying on credible ocular testimony, a dying declaration, and post-mortem evidence showing fatal head injuries caused by a spade, dismissing objections regarding initial medical findings.

What did the court decide?

Appeal dismissed; appellants ordered to surrender and serve sentence; bail bonds cancelled.

Yusuf Alamash Daryavardi and Anr. Vs State of… — Murder and Culpable Homicide | Bombay HC (2005)

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[1]

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE SIDE
 CRIMINAL APPEAL NO.347 OF 1989

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 1. Yusuf Alamash Daryavardi,
 aged about 50 years,
 Occ: Agriculturist.

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 2. Arjun Bhima Jadhav,
 aged about 35 years,
 Occupation: Service.

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 Both residing at Miraj,
 District Sangli. .... Appellants

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 - Versus -

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 The State of Maharashtra .... Respondent

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 Ms Sharmila Kaushik for the Appellants.

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 Shri B.H. Mehta, Addl. Public Prosecutor,
 for the Respondent-State.

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CORAM: R.M.S. KHANDEPARKAR &
 P.V. KAKADE, JJ.

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DATED: FEBRUARY 03, 2005

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ORAL JUDGMENT (Per P.V.Kakade, J.):

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 1. The appellants/original accused Nos.1 and 2 have

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 preferred this appeal against the judgment and order
 passed by the Sessions Court, Sangli, dated 4-5-1989
 whereby appellant No.1 was convicted for commission of
 the offence punishable under Section 302 of the Indian

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 Penal Code, hereinafter referred to as "the IPC", and
 was sentenced to suffer imprisonment for life, whereas
 appellant No.2 was convicted for commission of the
 offence punishable under Section 325 r/w Section 34 of

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[2]

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 the IPC and was sentenced to suffer R.I. for two years
 and to pay a fine of Rs.500/-, in default to suffer R.I.
 for one-and-half month. This was inspite of the fact
 that appellant No.2 was originally charged for the
 offence punishable under Section 302 r/w Section 34 of
 the IPC. However, since no appeal is preferred by the
 prosecution against appellant No.2, we do not propose to
 go into that aspect.

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 2. The facts giving rise to the present case, in brief,
 are thus:-

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 The appellant Nos.1 and 2 are the residents of
 Miraj and Kognoli respectively. The deceased Parashuram
 Babu Koli was the resident of village Waddi. PW-1
 Maruti Koli is the nephew of the deceased Parashuram.
 As the parents of PW-1 Maruti Koli expired during his
 childhood, he was looked after by deceased Parashuram.
 Besides Parashuram he has got two more uncles, namely,
 Gajanan and Vijay. Both Gajanan and Vijay reside
 separately with their families. The mother of
 Parashuram and his brothers are alive. The land of
 appellant No.1 Daryavardi is adjacent to the land of
 deceased Parashuram in village Waddi. The deceased
 Parashuram had taken the land of one Shanta Kunjire for
 cultivation purpose and he was serving as a Patkari. As
 a Patkari he was required to supply water under the

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[3]

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 irrigation scheme to the respective farmers. Vijay was
 also serving as a Patkari in the Irrigation Department
 of the sugar factory. In February, 1988 there was
 sugarcane crop in the land of appellant No.1. There was
 one water chamber in the land which was taken by
 deceased Parashuram from Shanta Kunjire and there was
 another water chamber on the boundary of the land of
 appellant No.1 and one Pawar.

¶22

 The incident in question occurred at about 5:30
 p.m. on 8-2-1988 at which time deceased Parashuram and
 PW-1 Maruti had gone to their land to bring fodder. At
 that time there was Jawar crop in their land. The
 deceased Parashuram had then gone near the chamber which
 was on the boundary of the land of appellant No.1 and
 one Pawar. He was then closing the water. At that
 time, it is the case of the prosecution, that appellant
 Nos.1 and 2 went there. The appellant No.2 Arjun is the
 servant of appellant No.1. The appellant No.1
 Daryavardi told the deceased Parashuram to give him more
 water. Thereupon the deceased Parashuram informed him
 that he would give water of two chambers and if he
 wanted more water, he should bring permission from the
 sugar factory. Even then the appellant No.1 persisted
 for more water. At that time the appellant No.1 was
 having one spade with him. It is then the case of the
 prosecution that both the appellants abused deceased

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[4]

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 Parashuram. The appellant No.2 Arjun then caught hold
 of the arms of Parashuram and appellant No.1 assaulted
 him with the spade on his both the knees and also on the
 head. Parashuram fell down. PW-1 Maruti raised shouts
 and hearing the shouts, PW-4 Shivappa Naik and
 Parashuram Naik went there. Both the accused persons
 ran away from the place. The deceased Parashuram was
 then taken on the road. His clothes were blood stained.
 By that time one Rafik Patel came there on bicycle. The
 said Rafik Patel took Parashuram on his bicycle to the
 village. In the village, Parashuram told about the
 incident to his sister PW-3 Sakhubai Koli. Then Vijay,
 brother of the deceased took Parashuram by truck to
 Miraj. The deceased Parashuram was then admitted to
 Civil Hospital, Sangli at about 7:30 p.m. He was
 examined by PW-5 Dr. Bobade, Medical Officer. In the
 Civil Hospital PW-6 Head Constable Kadam, who was then
 attached to the Miraj Rural Police Station, recorded the
 statement of deceased Parashuram. In view of the said
 statement, offence was registered at C.R.No.10/1988
 under Sections 325 and 504 r/w Section 34 of the IPC.
 PW-6 Kadam carried on investigation of the said offence.
 On the next day i.e., on 9-2-1988 he went to village
 Waddi and visited the place of the incident. He drew
 the panchnama of the scene of offence and recorded the
 statements of various persons. During the night of
 10-2-1988, at about 12:30 midnight, Parashuram succumbed

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[5]

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 to his injuries and the offence came to be registered
 against the appellants under Section 302 r/w Section 34
 of the IPC. The inquest panchnama was duly drawn and
 thereafter the body was sent for examination of which
 the report was received in due course, which is part of
 the record. PSI Nadaf (PW-7) took over the

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 investigation after the offence under Section 302 of the
 IPC was registered.

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 The investigation officer recorded the
 statements of various other witnesses and arrested both
 the appellants on that very day i.e. 10-2-1988. He
 also attached the clothes of the appellants under
 panchnama. The clothes of the deceased were already
 attached under panchnama. In the course of the
 investigation, appellant No.1 revealed the information
 as a result of which the recovery of weapon of offence
 i.e. the spade was made under the memorandum of
 panchnama. The attached clothes and the other articles
 were sent to the chemical analyser for examination,
 whose report was received in due course and which is
 part of the record. On completion of the investigation,
 chargesheet was sent to the Court of Judicial
 Magistrate, First Class, Miraj. As the offence under

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 the chargesheet was exclusively triable by the Court of
 Sessions, the learned Magistrate committed the case to
 the Court of Sessions.

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[6]

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 3. The learned Sessions Judge, Sangli, framed the
 charge against the appellants/accused for commission of
 of the offence under Section 302 r/w Section 34 of the
 IPC. They pleaded not guilty. By and large the defence
 of both the accused is that at the relevant time there
 was exchange of words and a scuffle ensued in which
 course the deceased Parashuram fell on the ground and
 suffered injuries and he was at that time under the
 influence of alcohol. The learned Sessions Judge
 proceeded to record the evidence of the prosecution
 which consists of seven witnesses, supported by
 documentary evidence. On conclusion of the trial, the
 learned Sessions Judge held that it was proved that the
 appellant No.1 had committed murder of deceased
 Parashuram and proceeded to convict and sentence him in
 the aforesaid manner. However, it was held that the
 prosecution did not prove that appellant No.2 was guilty
 of the offence under Section 302 r/w Section 34 of the
 IPC and on the basis of the available record, he was
 convicted for the commission of offence punishable under
 Section 325 r/w Section 34 of the IPC. Hence the
 present appeal.

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 4. We have heard the learned Advocates for both the
 parties and with their help we have perused the entire
 evidence on record.

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[7]

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 At the outset, it is to be noted that it would

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 be just and proper on our part to appreciate the ocular
 evidence on record in order to decide the appeal in
 proper perspective.

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 Before turning to the eye-witnesses’ account of
 the incident, it must be noted that the presence of both
 the appellants at the relevant time on the spot of the
 incident is neither challenged nor is in doubt. The
 moot question round which the entire case revolves is
 regarding the authorship of the crime with which the
 appellants are charged. For that purpose, the testimony
 of PW-1 Maruti r/w the testimony of PW-4 Naik is
 required to be scrutinised.

¶37

 PW-1 Maruti Koli is the nephew of deceased
 Parashuram. The witness at the relevant time was 15
 years old and was rightly administered the oath after
 ascertaining that he understood the sanctity of the oath
 in the case during the trial. The version given by
 witness Maruti regarding the actual incident is to the
 effect that about 4:30 p.m. on the fateful day he was
 present in his field and was cutting fodder. There was
 Jawar crop in his land and in the land of appellant No.1
 there was sugarcane crop. There was one water chamber
 in their land and there was also one water chamber on

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[8]

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 the boundary of the lands of appellant No.1 and one
 Pawar. At the time when this witness was cutting
 fodder, the appellant Nos.1 and 2 came near their
 chamber where deceased Parashuram was present and was
 about to close the water flowing from the chamber. At
 that time appellant No.1 demanded more water from
 Parashuram. Parashuram informed him that he would give
 more water to him, but for that purpose permission from
 the sugar factory would be required. Thereafter
 appellant No.1 still insisted for more water but
 Parashuram did not allow the same. At that time
 appellant No.1 had one spade in his hand. The appellant
 No.1 gave abuses to Parashuram. The appellant No.2
 Arjun, who is the servant of appellant No.1, also
 started giving abuses to Parashuram and then he caught
 hold of the hands of Parashuram and appellant No.1
 Daryavardi assaulted him by the spade on his both the
 knees and also on the head, as a result of which
 Parashuram fell down. Maruti raised shouts and hearing
 his shouts, PW-4 Naik and one other person by name
 Parashuram Naik came on the scene. Thereafter they went
 near Parashuram who had fallen on the ground. In the
 meantime the appellants/accused ran away.

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 This version is supported by PW-4 Shivappa Naik
 who has testified to the effect that hearing the shouts
 of Maruti, he went to the scene of the incident and

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[9]

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 noticed that Parashuram was lying on the ground and also
 noticed that there was a spade in the hands of appellant
 No.1 Daryavardi and appellant No.2 was present there.
 The clothes of Parashuram were blood stained. He went
 near him and seeing Naik and others, the
 appellants/accused ran away. They then took Parashuram
 on road and therefrom on the bicycle of one Rafik Patel
 to the village. Finally, he was taken to a hospital at
 Miraj and then to the Civil Hospital at Sangli. The
 testimony of Maruti, supported by the testimony of
 witness Naik, undoubtedly establishes not only the
 presence of both the appellants/accused at the relevant
 time but also the fact that the appellants assaulted
 Parashuram in the manner as testified to by witness
 Maruti.

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 PW-3 Sakhubai Koli is the sister of deceased
 Parashuram. Her testimony shows that she had gone to
 Miraj on that day and when she returned at about 5:30
 p.m., her brother Parashuram arrived at home with the
 help of Rafik Patel and she saw that his clothes were
 blood stained and when she asked as to what had
 happened, he informed her that appellant No.1 had
 assaulted him with a spade on his knees and on the head
 and that appellant No.2 had caught hold of him when
 appellant No.1 had assaulted him. Therefore, the
 testimony of PW-3 Sakhubai establishes the fact that

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 [10]

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 deceased Parashuram disclosed to her the names of the
 appellants/accused to be the persons as the assailants
 immediately after the incident when he was brought home
 in injured condition. At this juncture it may be noted
 that the disclosure made to Sakhubai by deceased
 Parashuram amounts to oral dying declaration which is
 again corroborated by the direct ocular evidence of
 Maruti and which is again corroborated by PW-4 Naik. It
 must be noted that even the testimony of Sakhubai cannot
 be doubted even for a moment for the simple reason that
 it is amply corroborated by the entire direct as well as
 the circumstantial evidence on record. Moreover, she as
 well as the other witnesses have no reason to implicate
 the appellants falsely. The testimony of PW-4 Naik also
 is found to be trustworthy, firstly, because he is an
 independent witness and secondly his presence on the
 scene of the incident is found to be quite natural when
 he arrived at the scene in response to the shouts of
 Maruti, who had witnessed the assault. In view of this
 position, we are inclined to hold that the testimonies
 of PW-1 Maruti, PW-3 Sakhubai and PW-4 Naik are totally
 trustworthy and there is absolutely no reason to discard
 them from consideration.

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 5. The evidence of PW-6 Head Constable Kadam shows that
 he was on duty at the relevant time at the police
 station and when he came to know about the incident and

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 [11]

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 admission of the injured Parashuram in the Civil
 Hospital at Sangli, he visited the hospital and
 contacted Dr. Bobade (PW-5) and then recorded the
 statements of Parashuram Babu Koli. According to him,
 Parashuram was conscious and was in a position to give
 statement. After the statement was recorded, his thumb
 impression was taken below it and it was thereafter
 treated as F.I.R. and is on record at Exhibit-27. His
 testimony is again supported by PW-5 Dr. Bobade who
 evidently was attached to the Civil Hospital, Sangli and
 at about 7:30 p.m. on that day had examined the
 deceased Parashuram. He has also supported the
 testimony of PW-6 Head Constable Kadam regarding the
 recording of statement by him. This aspect takes us to
 the document at Exhibit-27, which is the statement of
 Parashuram which was treated as F.I.R., and after the
 death of Parashuram has assumed the characteristic of
 dying declaration.

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 6. If we peruse the contents of the statement of
 deceased Parashuram, it is quite plain that whatever
 doubts might be in the mind would be set at rest so far
 as the assault on the deceased is concerned at the hands
 of both the appellants. He has narrated the incident
 and the reason as to why it so occurred. He has stated
 that when he refused to give more water to appellant
 No.1, he got enraged and started abusing him. His

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 [12]

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 servant, appellant No.2, was along with him at that

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 time. The appellant No.1 caught hold of him (deceased
 Parashuram) and appellant No.1 assaulted him by the
 spade on both his knees and assaulted him with the edge
 of the spade on his head which resulted in bleeding
 injuries to him. This FIR-cum-dying declaration, which
 is corroborated by the entire ocular as well as
 circumstantial evidence on record, pins down the
 appellants establishing the fact that the authors of the
 assault were none else than the appellants. The manner
 in which the assault took place also is established by
 consistent evidence of witness Maruti, which is again
 corroborated by the other circumstances which have
 surfaced on record. In view of this position, we are
 inclined to accept the document at Exhibit-27 as the
 dying declaration which is supported not only by the
 oral dying declaration given to PW-3 Sakhubai and PW-4
 Naik which leaves no doubt about the overt acts at the
 hands of both the appellants.

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 7. This aspect takes us to the medical evidence on
 record. PW-5 Dr. Bobade is the Medical Officer who
 examined Parashuram on his admission in the Civil
 Hospital at Sangli. He has narrated the injuries which
 he noticed after the clinical examination of Parashuram
 and the same are as follows:

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 [13]

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 "1. C.L.W. over right forehead 2 x 1

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 cm., scalp deep minimum bleeding with no
 fracture clinically.

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 2. C.L.W. over left parietal region 5
 x 1 cm. scalp deep minimum bleeding

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 with no fracture clinically.

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 3. Minor abrasions over both knees

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 about 1 x 1 cm."

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 According to him, there was no evidence of fracture and
 the injuries had occurred within six hours of his
 examination. He has testified that the injuries Nos.1
 and 2 might have been caused by a hard and blunt object
 and has issued the certificate accordingly. He has
 further stated that after X-ray examination it was
 noticed that there was no evidence of fracture of skull
 bone. He has further stated that if there is small
 crack on the outer table of the skull, then there is a
 possibility that crack may not appear in the X-ray. The
 learned Advocate for the appellants tried to make much
 about this statement, submitting that when the Medical
 Officer was not in a position to testify to the effect
 that there was fracture, offence under Section 302 of
 the IPC cannot be considered. In this regard, we must
 note that the Medical Officer has further testified to

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 [14]

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 the effect that when he examined the patient, he noticed

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 that the injuries were not grievous but when the patient
 died, then the injuries were considered as grievous. He
 further volunteered that he was not in a position to
 predict about the head injuries. We have given our
 anxious consideration to these submission. In this
 regard it must be noted that the cardinal principle of
 criminal jurisprudence, as ruled by the Apex Court in
 the case of State of Madhya Pradesh v. Dharkole alias
Govind Singh and others, reported in 2005 Cri.L.J. 108,
 is to the effect that "It would be erroneous to accord
 undue primacy to the hypothetical answers of medical
 witnesses to exclude the eye-witnesses account which had
 to be tested independently and not treated as the
 ‘variable’ keeping the medical evidence as the
 ‘constant’. It is trite that where the eye-witnesses
 account is found credible and trustworthy, medical
 opinion pointing to alternative possibilities is not
 accepted as conclusive. Eye-witnesses account would
 require a careful independent assessment and evaluation
 for their credibility which should not be adversely
 prejudged making any other evidence, including medical
 evidence, as the sole touchstone for the test of such
 credibility".

¶65

 Therefore, if we examine the evidence revealed
 in the present case on the touchstone of the ratio laid

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 [15]

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 down by the Apex Court, there cannot be any doubt
 whatsoever that the ocular testimony of PW-1 Maruti,
 which is again supported by the other circumstantial
 evidence on record, has to be accepted over the abstract
 and theoretical opinion given by the Medical Officer in
 this case. This is more so when we peruse the
 post-mortem examination report. PW-2 Dr. V.N. Aphale
 is the Medical Officer who has conducted the post-mortem
 examination. The post-mortem report proved by him
 establishes the fact that the head injuries suffered by
 deceased Parashuram at the hands of appellant No.1 was
 not only grievous but in fact was fatal, as can be seen
 from the cause of death recorded by the said doctor to
 the effect that it was due to shock due to blunt to
 brain, compression of brain and intraeranial
 haemorrhage. Therefore, if we take into account the
 entire medical evidence on record, including the
 post-mortem report, there is absolutely no doubt that it
 is not inconsistent with the ocular evidence on record
 against the appellants.

¶68

 The learned Advocate for the appellants
 submitted that the ocular testimony of witness Maruti as
 well as the statement in the dying declaration showed
 that there was assault on both the knees of the deceased
 but in fact the post-mortem examination has not revealed
 any serious injury except abrasion on both the knees.

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 [16]

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 However, this aspect cannot be given much importance

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 only on the ground that there was no serious injuries
 appearing on the knees of the deceased. The fact
 remains that the fatal injury suffered by the deceased
 was the head injury which was the result of the blow
 given by appellant No.1 to the deceased while he was
 held by appellant No.2. Therefore, we are of the view
 that absence of serious or grievous injury or any sign
 of such injury on both the knees of the deceased would
 not be sufficient to discard the other evidence as noted
 earlier and therefore this submission made on behalf of
 the appellants has to be discarded in toto.

¶72

 8. The circumstantial evidence on record includes the
 recovery of spade at the instance of appellant No.1 who
 is stated to have volunteered to the investigation
 officer on 15-2-1988, while he was in police custody,
 that he would take them to the spot where the spade was
 hidden. Accordingly, he took the police to the said
 spot and the spade was recovered which was seized under
 panchnama. It is significant to note that the defence
 did not challenge the panchnama as well as the
 memorandum of recovery of the spade and it was admitted
 under Section 294 of the Code of Criminal Procedure.
 However, if such admission is kept aside for a moment,
 the testimony of PW-7 J.N. Nadaf, the investigation
 officer, is sufficient to show that the recovery of the

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 [17]

¶74

 spade i.e., the weapon of offence was indeed made at the
 instance of appellant No.1 and therefore there can be no
 doubt whatsoever with regard to the recovery of the
 weapon of offence, especially when such weapon of
 offence was identified by PW-1 Maruti in the cross of
 his testimony when he has stated that article 14 i.e.
 the spade was the similar spade which was in the hands
 of appellant No.1 at the time of the incident.
 Similarly, the C.A. reports are also sufficient to show
 that the clothes of deceased Parashuram as well as the
 appellants/accused were stained with blood and though
 the group of the blood could not be identified, it was
 human blood. In the absence of any other defence theory
 as to how the blood stains appeared on the clothes of
 the deceased as well as the appellants/accused,
 conclusion has to be drawn that the blood stains on the
 clothes of all the concerned were of deceased Parashuram
 which was the result of assault at the relevant time and
 place.

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 9. For the reasons recorded above, we are in complete
 agreement with the learned trial Judge when he came to
 the conclusion that both the appellants/accused were
 guilty of the offences for which they were convicted and
 sentenced accordingly. In the result, the appeal fails
 and has to be dismissed and stands dismissed.

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 [18]

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 Both the appellants/accused who are on bail
 shall surrender to the Court of Sessions, Sangli to
 undergo the sentence imposed upon them within four weeks
 from today. Their bail bonds stand cancelled.

¶78

 (R.M.S. Khandeparkar, J.)

¶79

 (P.V. Kakade, J.)

Yusuf Alamash Daryavardi and Anr. v. State of Maharashtra.

Case brief

What is this about?

What did the court decide?

Yusuf Alamash Daryavardi and Anr. v. State of Maharashtra.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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