Partly allowed

Bhiwa Sidhu Patil and Others. v. the State of Maharashtra

Bombay HC20 Nov 2014APEAL/550/1991

Case brief

AI extract

What is this about?

An unlawful assembly's fatal assault led to substitution of the surviving appellants' murder convictions with convictions under Section 304 Part II read with Section 149. The court partly allowed the appeal, imposed three years' rigorous imprisonment and a fine, and maintained the other convictions and sentences.

What did the court decide?

Murder convictions replaced by Section 304 Part II read with Section 149 convictions; three years' rigorous imprisonment and fine imposed. Set-off and 12 weeks to surrender granted.

Bhiwa Sidhu Patil and Others. Vs the State of… — Murder and Culpable Homicide | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 550 OF 1991

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Bhiwa Sidhu Patil

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Age 26 years.

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Wagharam N. Patil Age 23 years

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Balkuram N. Patil Age 26 years

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Pandurang S. Patil Age 32 years.

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Motiram K. Patil Age 22 years

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Bapu Bala Patil (dismissed as abated as per order dtd.31.10.2014) Age 46 years

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Chahu Joma Patil (dismissed as abated as per order dtd.31.10.2014) Age 48 years

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Narayan B. Patil Age 22 years

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Sidhu Bala Patil (dismissed as abated as per order dtd.31.10.2014) Age 45 years

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Krishna S. Patil (dismissed as abated as per order dtd.31.10.2014) Age 35 years All Residents of Burdul Taluka Ulhasnagar, District – Thane. .. Appellants (Org. Accused Nos.3 to 8, 10, 13 to 15)

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V/s.

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The State of Maharashtra. … Respondent.

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Mr. S. R. Chitnis, Senior Counsel with Mr. Rahul Thakur for the Appellants.

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Mrs.S. D. Shinde, APP for State.

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CORAM: P. V. HARDAS & G. S. KULKARNI,JJ.

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RESERVED ON : NOVEMBER 03, 2014. PRONOUNCED ON : NOVEMBER 20, 2014.

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ORAL JUDGMENT [Per P. V. Hardas, J.] :

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The Appellants/Original Accused Nos.3 to 8, 10 and 13 to 15, who stand convicted for offence punishable under Sections 302 read with 149, 324 and 325 read with 149, 323 read with 149, 147 and 148 of the Indian Penal Code and sentenced to imprisonment for life and each accused to pay a fine of Rs.500/-, in default which to undergo further RI for two months, RI for one year and each accused to pay a fine of Rs.2000/-, in default of which to undergo further RI for one month, RI for three months, RI for three months and RI for six months respectively, with a direction that the substantive sentences shall run concurrently, by the II Additional Sessions Judge, Thane, by judgment dated 21/9/1991, in Sessions Case No. 196 of 1986, by this appeal question the correctness of their conviction and sentence.

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It appears that Appellant No.6/Original Accused No.8 Bapu Bala Patil, Appellant No.7/Original Accused No.10 Chahu

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Joma Patil, Appellant No.9/Original Accused No.14 Siddhu Bala Patil and Appellant No.10/Original Accused No.15 Krishna Sitaram Patil, died during the pendency of this Appeal. Separate order has been passed dismissing the Appeal filed by them as abated. This Appeal is therefore restricted to challenging the conviction and sentence of Original Accused No.3 Bhiwa Sidhu Patil, Original Accused No.4 Wagharam Namdev Patil, Original Accused No.5, Balkuram Namdev Patil, Original Accused No.6 Pandurang Sidhu Patil, Original Accused No.7 Motiram Krishna Patil and Original Accused No.11 Namdev Joma Patil.

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Facts, as are necessary for the decision of this appeal, may briefly be stated thus:-

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PW-8 PI Andhale, who was attached to the Hill Line Police Station, on 18.3.1984 recorded a report of PW-1 Shripat Janu Mhatre in respect of murder of Kacharu at Exhibit 35. On the basis of the said report, he registered an offence vide Crime No.I-48/1984. An entry of this report was taken at Serial No.12 in the station diary which entry is at Exhibit 53. After registration of the offence, PW-8 PI Andhale proceeded to the scene of the incident

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alongwith PW-1 Shripat. The scene of the incident was about 1 furlong away from Village Usatane on the Usatane Karawale Road. At a distance of about 30 feet from the road there was a deep ditch which was filled with water. The dead body of deceased Kachru was found at that place with the lower body in water and the upper part of the body on the ground. In the presence of the panch witnesses, an inquest panchnama at Exhibit 39 was recorded. The dead body was then referred to the Central Hospital, Ulhasnagar for postmortem examination. A scene of the incident panchnama was drawn in the presence of panchas at Exhibit 44. The scene of the incident panchnama was drawn prior to referring the dead body for postmortem examination at a distance of about 70 or 80 feet from the dead body, blood stains on the leaves were found. The blood stained leaves and ordinary leaves were seized. Near a foot path a loin cloth of deceased Kachru was found which was stained with blood.

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Statements of witnesses were recorded and a constable was deputed to Nitlas to call Dhondu, who was alleged to have fled after being assaulted. Since Dhondu had sustained

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injuries and his clothes were found to be stained with blood, his clothes were seized under seizure memorandum at Exhibit 54. Injured Dhondu and Vithal were then referred to the Ulhasnagar Central Hospital for examination. PW-8 PI Andhale then went to the house of Dhondu and drew the panchnama at Exhibit 45. The broken pieces of roof tiles were seized and were produced in Court as Article No.4. On 18.3.1984, statements of 12 persons were recorded. A search was taken of the accused but the accused were not found.

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On 19.3.1984, PW-8 PI Andhale recorded the statements of relatives of the deceased at Village Burdul and searched for the accused but the accused could not be traced. On 20.3.1984, pursuant to secret information, 7 accused were arrested i.e. Accused Nos. 1 to 7. On 21.3.1984, Accused Nos. 8 to 13 were arrested. On the evening of 26.3.1984, Accused No.14 was arrested.

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On 23.3.1984, during custodial interrogation, Accused No.8 Bapu Bala Patil and Accused No.10 Chahu Joma Patil expressed their willingness to point out the place where the

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weapons had been concealed. Accordingly, the memorandum of Accused No.10 Chahu was recorded in the presence of panchas at Exhibit 48. The memorandum of Accused No.8 Bapu was recorded at Exhibit 49. Alongwith Accused Nos.1 to 14 the police and the panchas proceeded and were then led by Accused No.10 Chahu to a distance of about 1 furlong from Village Usatane towards Village Nitlas and from the bushes near a rivulet produced one axe, one spear and three sticks which came to be seized under panchnama at Exhibit 50. Axe and the spear were stained with blood.

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Thereafter, Accused No.8 Bapu led the police and the panch to a Bamboo tree near the rivulet and produced 1 spear, 7 axes and 2 sticks which had been concealed. The said articles were seized under panchnama at Exhibit 51. The axe and the spear were stained with blood.

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On 23.3.1984, Accused No.15 Krishna was arrested. On 28.3.1984, Articles which were seized were referred to the Chemical Analyzer under requisition at Exhibit 56. The report of the Chemical Analyzer is at Exhibit 41. On 17.6.1984, a charge-

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sheet against the 15 accused was submitted.

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The injured were examined by PW-9 Dr. Baviskar, who

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on examining Dhondu noticed the following external injuries :-

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(i) Stab wound over left elbow joint starting from just lateral olecrenom process, going upto 1 1/2” downward and communicated the same wound 1 ½ below olecranom process.

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(ii) Contused lacerated wound over head anterior posteriorly size 1”x1/12” x1/4”.

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(iii) Tenderness over chest

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(iv) Swelling on dorsal aspect of left hand. X-ray of left elbow joint was taken and it showed fracture of lateral condyle. X-ray No.711 which I am producing now was taken on next day.

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He has produced the X-ray plate at Exhibit 58 and the injury certificate at Exhibit 59. According to him, Injury No.1 could be caused by a sharp and hard object and was possible by a spear. Injury No.2 was possible by hard and blunt object that

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is by the blunt side of the axe. Injury Nos. 3 and 4 were possible with a hard object like stick, stone and even fist blow.

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He had examined Vithal Patil and had noted the following external injury :

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(i) Laceration over the right knee joint jut below right patela, size – length 1” with direction downward and width 1/2”.

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According to him, the injury could be caused by hard

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and blunt object like stick. The injury certificate is at Exhibit 60.

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postmortem examination on the dead body of deceased Kachru and had noted the following external injuries :

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(i) Stab wound over left lower limb, 4” below the lower part of left patela anteriorly length about

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1 1/2” transverse 1” and deep 1/4” upto tibia bone.

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(ii) Fracture and dislocation of left wrist joint.

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(iii) Stab wound 3” below olecrenom process size 1” length with direction downwards, width 1/2”, depth 1” on posterior side of left forearm.

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(iv) Stab wound, 6” below left olecrenom process, Size 1” x 1/2” x x 1/2” direction downwards.

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(v) Stab wound over right elbow joint on lateral aspect, size 1” x 1/2” x 1/4” direction.

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(vi) Cut incised wound over head on occipital region 1” lateral medial line on both sides, direction interio-posterior, size – Length 2”, breadth 1/4”, depth 1/2”.

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(vii) Fracture starting from root of left ear, extending upto sagital line.

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On internal examination he noticed that blood had collected into scalp fracture starting from root of left ear extending upto saggital line (sub-arachnoid haemorrhage and subdural haemotoma was present). He further opined that all the injuries were antemortem and according to him, the cause of death was due to sub-arachnoid haemorrhage and subdural

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haemotoma due to trauma. According to him, external Injury No.7 was responsible for the death. According to him, the stab wounds were possible by a spear while Injury No.6 was possible by sharp and hard object like axe. Injury Nos.2 and 7 would be caused by a hard and blunt object i.e. the blunt side of the axe. The Postmortem report is at Exhibit 61.

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On the case being committed to the Court of Sessions, Trial Court vide Exhibit 3 framed charge against the accused for offence punishable under Section 147, 148, 302, 307, 326, 336, r/w. 149 of the Indian Penal Code, in the alternative, under Section 427 r/w. 34, 302 r/w. 34, 307 r/w. 34 and 323 r/w, 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 9 witnesses. The Trial Court upon appreciation of the evidence of the prosecution, convicted and sentenced the Appellants as aforestated.

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We have heard Mr. S.R. Chitnis, learned Senior Counsel for the Appellants and the learned APP and in order to effectively deal with the submissions advanced before us, it

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would be useful to refer to the evidence of the prosecution witnesses.

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Prosecution has examined PW-1 Shripat. PW-1

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Shripat deposes that he was residing in Village Burdul. The accused were also residents of the same village and therefore, PW-1 Shripat was acquainted with the accused and knew them by their name also. According to Shripat, about 3 years prior to the incident, the paddy from the field was stolen and after the theft when he was going towards Kalyan for shopping, Accused No.8 Bapu and other persons had followed him and had assaulted him. Shripat had therefore lodged a report with the Police. In that case the accused were acquitted. In respect of the present incident, Shripat deposes that on the day of the incident at about 6.00 to 6.30 p.m. he was present in his house alongwith his cousin deceased Kachru who was the Sarpanch of the village. According to him, the house of PW-2 Dhondu is at a distance of 25 paces from the house of deceased Kachru. Accused No.8 Bapu, Accused No.4 Waghya, Accused No.5 Bhalkya and some other person had gone to the house of PW-2 Dhondu and began pelting stones at his house. After pelting the

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stones the accused went away. After some time PW-2 Dhondu came to the house of Kachru accompanied by PW-3 Vitthal. Dhondu informed Kachru that he was going to the Police Station for lodging a report and requested that Kachru should accompany him.

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Therefore, PW-2 Dhondu, PW-3 Vithal, deceased Kachru, one Rama, Bhagwan and PW-1 Shripat left for lodging a report at Hill Line Police Station. The said Police Station is at a distance of about 10 to 12 miles from the village. Shripat and others were walking towards the Police Station and when they had reached Village Usatane at about 8.00 to 8.30 p.m and when they were near the rivulet they were attacked by group of persons who were 15 in numbers. According to Shripat he could identify all the assailants as it was a full moon night. He has named all the assailants and has stated that Original Accused No.2 Rama Vithal Patil, who had died during the Trial had also accompanied them. According to Shripat, accused were armed with axe, sticks and spears. Accused No.8 Bapu questioned them as to where they were going and then exhorted the accused to attack Shripat and others by saying “catch and

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assault”. Accused No.8 Bapu dealt an axe blow on the head of Kachru. On seeing the assault, Rama, PW-4 Maruti and Shripat fled towards the bushes. Deceased Kachru also followed them at about a distance of 20 to 25 paces from the place of the initial assault, the accused again assaulted Kacharu with axe and sticks. Shripat saw the incident from a short distance of about 10 to 15 paces from the scene of the incident. When Kachru was being assaulted, Rama, Maruti and Shripat returned back to the village to inform father of Kachru about the incident.

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According to Shripat he informed his uncle kalu about the incident and immediately went to village Usatane. When they reached the scene of the incident they did not notice anyone including the accused. The Sarpanch of Village Usatane and 2 to 3 persons from that village were present. The dead body of Kachru was not found at the scene of the assault but was found at a distance of about 15 to 20 paces. Kachru was lying with his legs in watter while the upper part of his body was on the ground. On seeing the dead body of Kachru they were frightened and since there was no facility of conveyance and due to fear they could not walk to the Police Station. Kachru,

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Rama, Maruti, father of Kachru and other relatives of Kachru remained at the scene of the incident during the night. At about 6.00 a.m. the Police Patil of Village Usatane and PW-1 Shripat walked to the Police Station. They walked upto Hajimalang Wadi and from there went to Ulhasnagar by a S.T. Bus. At the Police Station PW-1 Shripat lodged his report at Exhibit 35. Shripat returned to the scene of the incident alogwith the Police and pointed out the scene of the incident. He also pointed out the dead body of deceased Kachru. According to Shripat, he had seen that Accused No.4 Waghya was armed with a stick while Accused No.1 Ananta, Accused No.3 Bhiva, Accused No.5 Balkuram, and Accused No.8 Bapu were armed with axes.

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In cross-examination he has admitted that at present there were S.T. Buses plying between Usatane to Ulhasnagar but the bus service was not available at the time of the incident. He has then admitted that it was possible that the bus service might be available on that rout during the incident. He has however admitted that they did not go to Ulhasnagar by the regular road. He has then admitted that he had lodged the report when the paddy crop of his brother was stolen and all the

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accused were also made accused in that case. He has also admitted that in 1981 there was a dispute between his uncle Kalu and Accused No.8 Bapu. In respect of that incident, a report had been lodged with the Police and all the accused in the present case were also prosecuted in that case. He has admitted that in 1983 there was a quarrel between his brother Dattu and one Goma Patil. He has also admitted that a report of theft had been lodged against him and Kachru by one Baliram of Village Karawale.

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He has then admitted that house of Dhondu Budha was visible from the platform from the house of Kachru where he and others were sitting. He has admitted that he had seen pelting of stones which lasted for about 5 to 10 minutes. He has then admitted that there were about 10 to 15 persons in the mob which was pelting stones. He has admitted that he had neither shouted nor had gone to the help of Dhondu Budha. He has admitted that none of them had gone to the house of Dhondu to see as to what damage had been caused to the house. He has admitted that family members of Dhondu were present in the house at the time of pelting of the stones. He has

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admitted that he has two grown up sons who were also present in the house. He has also admitted that before lodging of the report at Exhibit 35, he had not mentioned about the pelting of stones to anyone. He has volunteered that he had no reason to tell other persons about it.

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In respect of the assault on Kachru, he has admitted that he had given information to the Police Patil of that Village. He has admitted that he had referred to the incident of pelting of stones which was the cause of the assault on Kachru. He has admitted that he had not given details of the incident of stone pelting nor had he disclosed the names of the accused involved in the incident. In his report he has admitted that as Kachru had been murdered, Dhondu did not lodge any report about the incident of pelting of stones. He has admitted not to have stated in his report that he had personally seen the incident of stone pelting. He has admitted as correct that he had not seen Accused Nos.4,5 and 8 pelting stones. He has admitted that at about 7.30 to 7.45 p.m. they had left the house of Kachru for going to Ulhasnagar. He has admitted that normally Dhondu and Kachru alone would have gone to the Police Station but the

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other witnesses also accompanied them for their safety as the atmosphere in the village was tense. He has admitted that as the apprehension of the danger all of them had gone together. He has admitted that he had accompanied them to be witnesses to any incident that may occur. He has admitted that they had not carried any weapon or sticks with them as they did not expect an assault of this nature. He has admitted that they had noticed the assailants from a distance of about 15 paces and had seen the weapons which were carried by them. According to PW-1 Shripat, the accused had come in two groups but at the same time one group came from the side of the foot path from the rivulet while other group came from the side of bushes. He has admitted that they had identified the accused from a distance of about 15 paces when they had seen them initially but did not apprehend that the accused would attack them and therefore, made no attempts at fleeing away from the scene of the incident. He has admitted that he did apprehend some danger as the accused were armed with weapons. He has admitted that they had not asked them as to where they were going carrying the weapons. He has admitted that before Kachru was assaulted, the witnesses made no attempt at fleeing

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away. He has admitted that Kachru was first assaulted at a distance of about 15 to 20 paces from the river.

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He has admitted that as the river is situated within

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the limits of Village Gothani he has referred to the scene of the incident as near Gothani in the First Information Report. He has admitted that when Accused No.8 Bapu asked them as to where they were going, the witnesses did not reply. Omissions have been elicited that he has not stated in his report that Kachru was walking ahead of the group of the witnesses at the time of assault. Omission is also elicited that he has not stated that on account of sudden assault on Kachru, Rama, Maruti and PW-1 Shripat ran towards the bushes. He has admitted that they were hiding in the bushes for about 10 minutes when Kachru was being assaulted by the accused. He has admitted that when they had left the bushes for going to the village, Kachru was being assaulted. He has admitted that neither Rama nor Maruti nor he (PW-1 Shripat) rushed to help Kachru when he was being assaulted. He has admitted that they had not raised any alarm nor cried out for help. He has admitted that they were hiding in the bushes out of fear. He has admitted that when they went at

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the scene of the incident on the second occasion, they were frightened. He has admitted that the dead body of Kachru was found within 5 minutes of reaching the spot. He has admitted that no purpose would be served by informing the Police Patil during the night and therefore, PW-1 Shripat informed him in the morning. He has candidly admitted that the Police Patil would not have been gone to the Police Station during the night. He has admitted that there was a delay in reporting to the Police as they were searching for Kachru.

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Omission has been elicited that he had not stated in his report that Kachru was assaulted at a distance of about 20 to 25 paces from the place of first assault and that PW-1 Shripat saw the incident from a distance of 10 to 15 paces. Omission is elicited that he had not stated in his report that Rama, Maruti and he returned back to the village to inform Kachru's father about the incident. Omission is elicited that he had not stated in his report that the legs of Kachru were dangling in the water while the upper part of the body was on the ground. Omission is elicited that he had not stated in is report that he had seen Accused No.4 armed with a spear while Accused Nos.1,3 and 5

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being armed with axes. He has admitted as true that in 1984 he was externed from the limits of Hill Line Police Station for 6 months and that in 1982 the Police had lodged a case against him and his brother on the allegations of assaulting one Yadav Patil.

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Mr. Chitnis, learned Counsel for the Appellants has urged before us that no reliance can be placed on the testimony of PW-1 Shripat as the conduct of this witness is wholly unnatural. According to the learned Counsel for the Appellants, PW-1 Shripat alongwith the other witnesses fled from the spot and hide himself in the bushes and thereafter, returned to the village but did not raise any cries for help nor did he intervene in order to save Kachru. It is also urged before us that in the light of the contradictions and omissions in the testimony of this witness, no reliance ought to have been placed. It is also urged before us that the incident of stone pelting at the house of Dhondu has been disbelieved by the Trial Court and consequently, there was no reason for Kachru, Dhondu, PW-1 Shripat and others to be at the scene of the incident. The learned APP has supported the findings arrived at by the Trial

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Court.

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The Trial Court at paragraph 20 of the Judgment has held that the spot panchnama at Exhibit 45 relating to the house of Dhondu was not a reliable document. The Trial Court has further held that merely because of failure on the part of the Police, the evidence of Dhondu cannot be brushed aside. Ultimately, a finding is recorded by the Trial Court which we reproduce as hereunder :-

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“In view of the evidence on record that the damage to the house of Dhondu is not proved properly, his evidence about abusing and pelting of stones is acceptable.”

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Even according to us, if the spot panchnama at Exhibit 45 is not proved by the prosecution, the evidence of the witnesses about the pelting of stones at the house of Dhondu cannot be brushed aside. There is strong and reliable evidence of the prosecution witnesses, who have been subjected to searching, cross-examination in respect of the incident of stone pelting, yet, the witnesses have emerged as truthful witnesses

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on whom reliance can be placed in respect of the incident of stone pelting.

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PW-1 Shripat, deceased Kachru and others were proceeding for lodging a report at the Police Station in respect of the incident of stone pelting. As per the evidence of PW-1 Shripat, all of them had gone together in a group as they were apprehending some danger in the event Kachru and Dhondu were to go to the Police Station. The danger which they apprehended did not conclude a murderous assault on deceased Kachru and that is a reason whey they were not carrying any weapons or sticks with them. PW-1 Shripat has candidly admitted that they did not expect an assault on them. All of a sudden the accused came to the scene of the incident armed with weapons and commenced assault on deceased Kachru. The suddenness of the attack took everyone by surprise including PW-1 Shripat and therefore, we do not find that the behaviour of PW-1 Shripat is so abnormal or unnatural that he fled from the scene of the incident in order to save himself. Shripat has admitted that he was frightened even when he returned to the scene of the incident on the second occasion. It

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is quite possible that on account of fright and the suddenness of the attack, neither Shripat nor the other witnesses raised any cries for help nor did they intervene in the quarrel to save deceased Kachru. In these circumstances therefore, in our opinion, the conduct of the witnesses cannot be assailed on the ground that it is unnatural. The omissions and the contradictions which have been elicited in the evidence of PW-1 Shripat, vis-a-vis the report lodged by him, are all pertaining to the details of the assault. A First Information Report is not meant to be an encyclopedic version of the entire incident. The omissions referred to the details of the assault and in such circumstances therefore, in our opinion, the credibility of PW-1 Shripat is not affected on account of the omissions. It is true that Shripat has admitted that there was delay in lodging of the report as they were searching for Kachru. He has admitted that the dead body of Kachru was found within 5 minutes of reaching the spot. Since it was dark, the witnesses had decided to go to the Police Station in the morning and were waiting at the scene of the incident guarding the dead body of deceased Kachru. Thus, in our opinion, implicit reliance can be placed on the testimony of PW-1 Shripat.

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Prosecution has examined PW-2 Dhondu. PW-2

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Dhondu deposes that in the evening of the incident, he was present at his house and at about 6.00 to 6.30 p.m., Accused No.8 Bapu and Accused No.10 Chahu came to his house and were abusing. These accused were intoxicated and therefore, Dhondu advised them to return back to their houses. The accuses went away but within a short time returned to the house of Dhondu accompanied by about 10 to 15 persons. Accused No.8 Bapu and Accused No.10 Chahu questioned Dhondu whether he was the leader or the “strong man” and thereafter, commenced pelting stones at the house of Dhondu. According to Dhondu he shut the door of the house and waited in the house. The stone pelting continued for about 5 to 10 minutes due to which the roof tiles of his house were broken. The reed walls and the door of his house were also damaged. The accused thereafter went away. According to Dhondu, he decided to lodge a report with the police and therefore, took his nephew PW-3 Vithal alongwith him and went to the house of deceased Kachru. At the house of Kachru, Kachru, Bhagwan, PW-1 Shripat, Rama and Maruti were present. Dhondu narrated

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the incident to deceased Kachru and also informed Kachru that he apprehended danger to his life and therefore, wanted to lodge a report. Dhondu requested Kachru to accompany him to the Police Station. Kachru agreed and all the seven persons then left for lodging a report at the Hill Line Police Station at Ulhasnagar.

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According to Dhondu, when they had reached upto the Gavthan area of Village Usatane, Accused No.10 Chahu, Accused No.5 Valkya, Accused No.4 Waghuram, Accused No.11 Nama Joma, Accused No.14 Siddhu, Accused No.6 Pandurang, Accused No.3 Bhiva, Accused No.2 Rama (who died during the pendency of the trial), Accused No.12 Namdev, Accused No.9 Budha, Accused No.1 Ananta and Accused No.13 Narayan came from the side of river. According to Dhondu, he could identify all the accused as it was a full moon night. The accused were armed with axe, spear and sticks. Accused No.10 Chahu dealt an axe blow on the head of Dhondu while Accused No.5 Valkya dealt a spear blow on his left arm. Accused No.15 Krishna assaulted Dhondu with sticks on his left hand and abdomen. Due to the assault, Dhondu fell on the ground and was rendered

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unconscious. According to Dhondu, when he was being assaulted, deceased Kachru, Rama, Maruti and PW-1 Shripat ran towards the trees and bushes. Accused No.8 Bapu and other accused chased Kachru. Dhondu has admitted that he could not describe the weapons with which the accused were armed except the accused who had assaulted him. He states that he does not know what happened to Vithal who was standing behind him. Dhondu regained his conscious after some time and heard the cries of Kachru from a distance. No one was present there at that time. On account of fear therefore, Dhondu went to the house of his sister at Village Nitlas, which is at a distance of about 2 and ½ miles from Village Usatane. On the next day in the afternoon, the Police had brought him from Village Nitlas to the scene of the incident. Dhondu claims that he was referred to the hospital at Ulhasnagar by the Police and his clothes which were blood stained were seized.

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Dhondu was examined by PW-9 Dr. Baviskar, who had noticed a stab wound over left elbow joint, contused lacerated wound over head, tenderness over chest and swelling on the dorsal aspect of the left hand which showed fracture.

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In cross-examination, an admission is elicited that he fell on the ground after the second blow was given and he became unconscious. He has admitted that when he was being assaulted, he did not pay attention towards what was happening. He has admitted that as he had apprehended danger to his life, he had decided to lodge report regarding the incident of stone pelting. He was confronted with portion marked 'A' from his statement wherein he had stated that he had advised accused Bapu and Chahu when they were wondering in the village in an intoxicated condition. He has denied to have made statement of portion marked 'A'. He has admitted that they had removed the stones from the roof and had kept them aside for showing it to the Police.

¶123

He has admitted that he was apprehending danger to his life and the lives of his 2 sons. He has admitted that he had gone to the house of deceased Kachru because deceased Kachru was a Sarpanch of the village and as the Police Patil was himself an accused. He has admitted that he had gone to the house of Kachru in order to request him to accompany him for

¶124

jt.550-1991

¶125

lodging the report. He has admitted that Bhagwan, PW-1 Shripat, Rama, Maruti are already present at the house of Kachru. He corrected himself to state that they were called at the house of Kachru after he had gone there. He has admitted that he had requested deceased Kachru to call these persons as Dhondu was afraid and was apprehending danger to his life. He has admitted that he had decided to lodge the report as there was danger to his life. He has admitted that the last bus from village Usatane to Ulhasnagar was at 8.00 p.m. and as no conveyance was available, they decided to walk to Hill Line Police Station. He has further admitted as it was a full moon night had not taken any torch. He has further admitted in the cross-examination that though there was danger to his life, he was not apprehending any assault on the way. He too has admitted in cross-examination that they had sighted the assaults from a distance of 15 to 20 paces and had also noticed the weapons in their hands. He has admitted that he did not attempt to flee on seeing the accused. He has admitted that he had stopped for about 5 to 10 minutes on seeing the assailants. He has admitted that after receiving the second blow, he fell on the ground and became unconscious.

¶126

jt.550-1991

¶127

An omission is elicited that he had not stated in his previous statement that before going to village Nitlas, he had regained consciousness. Omission is also elicited that he had not stated in his previous statement that the accused had come from the side of the rivulet. An omission is elicited that he had not stated that he had heard the cries of Kachru. He has admitted that as he was frightened, he had not gone to village Usatane. He has admitted that his clothes were stained with blood and he had slept in the same clothes. He has admitted that he had gone to the house of his cousin Kanubai Pavse at village Nitlas. Her husband Shantaram had accompanied Dhondu when he had returned to the spot alongwith the Police.

¶128

The learned Senior Counsel for the Appellants has urged before us that PW-2 Dhondu does not make any reference to the assault on deceased Kachru and the sequence of the assault is also differently stated by this witness. The injuries sustained by PW-2 Dhondu do not corroborate the manner of assault. It is urged before us that the details of the incident are contradictory to the testimony of PW-1 Shripat. PW-2 Dhondu had sustained (i) stab wound on his left elbow, (ii) contused

¶129

jt.550-1991

¶130

lacerated wound on his head, (iii) tenderness on his chest and (iv) swelling on dorsal aspect of left hand with fracture.

¶131

The injuries which have been sustained by Dhondu corroborate his version about the assault on him. Dhondu is an injured witness and nothing has been elicited which event even remotely indicated that Dhondu was not present at the scene of the incident. Stones had been pelted at the house of Dhondu, due to which Dhondu had decided to lodge a report. It has been elicited in the cross-examination that Dhondu apprehended danger to his life and to the lives of his son and therefore, had firmly decided to lodge the report. Since he was apprehending danger to his life, he has requested deceased Kachru, a sarpanch to accompany him and had also requested others to accompany him. It has been elicited in the cross-examination that though Dhondu apprehended danger to his life, he did not expect any assault on the way to the Police Station and that is the reason why Dhondu and others had not carried any weapons with them. The identity of the assailants is also established since it was a full moon night. In fact, in the cross-examination it is elicited that the witnesses had seen the assailants from a

¶132

jt.550-1991

¶133

distance of 15 to 20 paces and had identified them.

¶134

In cases of sudden and unexpected assault, it cannot be accepted that the eye-witness to the incident would give version which would tally with the other eye-witness. There are bound to be variation as the powers of witnesses to recapitulate an incident particularly, a sudden incident varies from person to person. There are bound to be variations in respect of the sequence, manner and the names of the assailants who had assaulted each injured. In the testimony of PW-2 Dhondu that there is a variation qua the evidence of PW-1 Shripat, we find that the variations are extremely marginal and do not affect the core of the testimony of this witness. His evidence cannot be called as unnatural because he had fled from the scene of the incident. Dhondu was assaulted and was rendered unconscious and on regaining consciousness, instead of returning to Usatane, he preferred to flee to the house of his cousin. The blood stained clothes of Dhondu bear a mute testimony to the injuries sustained by him. Therefore, in our opinion, there cannot be any manner of doubt that PW-2 Dhondu was present at the scene of the incident and have been assaulted by the assailants.

¶135

jt.550-1991

¶136

His omission to refer to the assault on Kachru would not be fatal either to the prosecution case or to the testimony of PW-2 Dhondu. The incident was of 1984 and the witnesses were deposing about the incident after nearly 7 years and thus, there are bound to be minor variations and contradictions in the evidence of the witnesses. We, therefore, find that implicit reliance can be placed on the testimony of PW-2 Dhondu. As pointed out by us, we see no reason to doubt the evidence of Dhondu that the accused had pelted stones at his house as this was the reason as to why Dhondu and others were present at the scene of the incident as they were on their way to the Police Station for lodging a report.

¶137

Prosecution has examined PW-3 Vithal, who deposes

¶138

about the incident of stone pelting at the house of PW-2 Dhondu and then deposes that he alongwith Dhondu had gone to the house of Kachru. He further deposes that PW-1 Shripat, Maruti, Rama and Bhagwan were present at the house of Kachru. Dhondu narrated the incident and informed Kachru that he wanted to lodge a report with the Police. Accordingly, Dhondu, Kachru, Shripat and others accompanied by PW-3 Vithal left for

¶139

jt.550-1991

¶140

going to the Police Station at about 7.00 or 7.30 p.m. At about 8.00 p.m. they reached the area of village Usatane and suddenly 10 to 15 persons came from the side of rivulet and obstructed them. Accused No.8 Bapu questioned Dhondu and others if they were going for lodging the report. Saying so, he asked his companions to assault and beat the prosecution witnesses. PW3 Vithal has identified the accused who were present there and who had assaulted them. According to Vithal accused were armed with sticks, axes and spears. Vithal deposes that Dhondu was given a blow on his head by accused No.10 Chahu with an axe. Accused No.5 Balkrishna then dealt a spear blow on the elbow of Dhondu. Accused No.15 Krishna dealt a blow of stick to Dhondu. Because of the assault, Dhondu fell on the ground and Accused No.7 Motiram and Accused No.13 Narayan assaulted Vithal with sticks. While Dhondu and Vithal were being assaulted, the other companions ran to the side and the accused then chased them. PW-3 Vithal, on getting an opportunity, fled from the scene of the incident towards the southern side of the rivulet and hide himself in the hilly area at a distance of half a mile from the scene of the incident. On the next day at about 7.00 or 7.30 a.m. he came out of hiding and

¶141

jt.550-1991

¶142

went to his house. According to Vithal, he learnt that deceased Kachru had been killed and therefore, returned to the scene of the incident. He claims that he was examined by the Medical Officer at Ulhasnagar.

¶143

PW-9 Dr. Baviskar had examined Vithal and had noted

¶144

a laceration over the right knee joint below the right patela. The injury certificate of Vithal is at Exhibit 60.

¶145

In cross-examination Vithal has admitted that PW-2 Dhondu is his uncle. He has admitted that he had heard the abuses and shouting but did not come out from his house. An omission is elicited that he had not stated in his previous statement that PW-2 Dhondu had informed him that some persons had abused him. Omission is also elicited that he had not stated that Dhondu had informed him that he had asked Accused No.8 Bapu and Accused No.10 Chahu not to abuse Dhondu. He has admitted that he did not consider it necessary to go to the house of Dhondu to see what had been caused. He has admitted that he was assaulted for about a minute. He was confronted with portion marked 'A' from his previous statement

¶146

jt.550-1991

¶147

that Dhondu had requested him to come to the house of sarpanch and therefore, he had gone to the house of deceased sarpanch. He had denied to have stated so. He has admitted that he alongwith PW-1 Shripat and others had been externed for more than a year after the murder of deceased Kachru. He has admitted that Dhondu had taken a decision to lodge the report at the house of deceased Kachru. In order to avoid further complications on the next day, it was decided to lodge a report during the night. He has admitted that when he saw the assailants, the assailants were rushing towards them holding the weapons. He has admitted to have noticed the assailants when they were at a distance of 5 to 10 paces from Vithal. It is elicited in the cross-examination that he had identified the assailants who were 15 in number. Omission is elicited that he had not stated in his previous statement that Accused No.8 Bapu questioned them if they were going for lodging a report. Omission is also elicited that he had not stated that Dhondu was ahead in the group and was assaulted first. He has admitted that Dhondu had fallen on the ground within one minute of commencement of the assault. He has admitted that he was at the spot for less than half a minute after Dhondu had fallen on

¶148

jt.550-1991

¶149

the ground. He has admitted that he and Dhondu were assaulted almost simultaneously. He was confronted with portion marked 'B' from his statement that he had fled towards the hill of Nitlas. He has denied to have stated as per portion marked 'B'.

¶150

Learned Senior Counsel for the Appellant has urged before us that PW-3 Vithal does not refer to the assault on deceased Kachru. According to the learned Counsel for the Appellants, the injury certificate does not corroborate that Vithal was assaulted by the assailants. The learned APP has supported the findings arrived at by the Trial Court.

¶151

The cross-examination of PW-3 Vithal certainly reveals that he had sustained only one injury on his knee. The injury was a laceration over the right knee joint. It appears to us that PW-3 Vithal, on noticing that the assailants were assaulting Dhondu fled from the scene of the incident. It is extremely doubtful if PW-3 was at all assaulted by the accused looking to the nature of the injury sustained by him. Since he was frightened, he had concealed himself and chased to come out of

¶152

jt.550-1991

¶153

his hiding only on the next day in the morning. Since PW-3 Vithal had fled from the scene of the incident immediately, his testimony is of no assistance to the prosecution in establishing the assault by the accused on either Kachru or the other injured witnesses. We therefore find that no reliance can be placed on the testimony of PW-3 Vithal. Vithal had fled from the scene of the incident as he probably apprehended danger to his life and such a conduct in our opinion would not be unnatural but would be a natural conduct keeping in mind with self-preservation. The presence of PW-3 Vithal at the scene of the incident therefore, before the commencement of the assault, cannot be doubted.

¶154

Prosecution has examined PW-4 Maruti, brother of PW-1 Shripat and cousin of deceased Kachru. Maruti deposes that he alongwith Shripat and Rama was present in the house of deceased Kachru. PW-2 Dhondu and his nephew Vithal and one Bhagwan had come to the house of Kachru. Dhondu informed them that Accused No.8 Bapu, Accused No.10 Chahu and others had pelted stones at his house and had damaged the roof tiles. Dhondu informed Kachru that he wanted to lodge a report and

¶155

jt.550-1991

¶156

also requested Kachru to accompany him to the Police Station. Accordingly, at about 8.00 p.m. Dhondu, Kachru, Shripat and others including PW-4 Maruti left for lodging a report. They were walking to the Police Station. At about 8.30 p.m. when they had reached near village Usatane, about 15 persons came in front of them armed with sticks, axes and spears. Maruti claims that he could identify the assailants as it was a full moon night. He has given the names of the accused who were armed with weapons. According to him, Accused No.8 Bapu questioned them if they were going to lodge a report with the Police and Accused No.8 Bapu then dealt a blow on the head of Kachru. On sustaining this blow, Kachru attempted to run away but fell on the ground. PW-1 Shripat, Rama and Maruti also ran in the same direction. The other accused rushed towards deceased Kachru. PW-4 Maruti and others watched the incident from a distance of about 10 to 12 feet. They noticed the assailants assaulting Kachru and thereafter, the assailants rushed towards them. Maruti, Shripat and others therefore ran towards Burdul Village and informed father of Kachru about the incident. They returned back to the scene of the incident accompanied by father of Kachru and his other relatives. They noticed the dead body of deceased Kachru

¶157

jt.550-1991

¶158

at a short distance from the place of assault. The lower part of the body of Kachru was immersed in the water while the upper part on the ground.

¶159

He was confronted with portion marked 'A' in his previous statement that Dhondu and Vithal had called him to the house of Kachru as he was residing in the neighborhood. He had denied to have stated so. It has been elicited in the crossexamination that PW-2 Dhondu had disclosed that Accused No.8 Bapu and Accused No.10 Chahu had pelted stones at his house but had not disclosed the name of accused Sukhdeo. An omission is elicited that he had not stated in his previous statement that Dhondu had disclosed that the roof tiles were damaged. An omission is elicited that he had not stated that the assailants had come by the foot path from the northern side. He has then admitted that deceased Kachru had not caused harm to anyone for Kachru to be killed. He was confronted with portion marked 'B' from his statement that the accused had encircled them. He has denied to have stated portion marked 'B'. An omission is elicited that he had not stated in his previous statement about Accused No.8 questioning if they were going

¶160

jt.550-1991

¶161

for lodging a report. An omission is elicited that Accused No.8 after posing the said question had assaulted Kachru on his head and that Kachru ran a short distance and fell on the ground. Omission is also elicited that he had not stated that they were standing at a distance of about 10 to 12 feet from Kachru. Omission is also elicited that he had not stated that they had thereafter fled towards village Burdul and had informed father of Kachru about the incident. Omission is elicited that he had not stated in his previous statement that he returned back to the scene of the incident alongwith the relatives of Kachru. Omission is elicited that he had not stated in his previous statement that he had noticed the dead body of Kachru with his lower body immersed in water and the upper body on the ground. He was confronted with portion marked 'C' from his statement that he had stated in his previous statement that before he had left the spot, the accused had killed and had thrown the body of Kachru in water. He was confronted with portion marked 'D' from his previous statement to the effect that they had gone towards the Wada hills in Panvel. In order to save themselves. He had denied to have stated so.

¶162

jt.550-1991

¶163

The learned Counsel for the Appellants has rightly urged before us that no reliance can be placed on the testimony of this witness in the light of the contradictions and the omissions elicited in the cross-examination. This witness has contradicted himself on vital aspect of prosecution case and therefore, it is apparent to us that though this witness may have accompanied Dhondu and others, he fled immediately on seeing the assailants and have not witnessed the assault on Kachru and others. The evidence of this witness therefore is of no assistance to the prosecution in proving the assault though his evidence establishes the presence of the accused at the scene of the incident armed with weapons.

¶164

Prosecution has examined the panch witnesses in respect of the discovery of the weapons. Since the entire case of the prosecution revolves round the evidence of the eyewitnesses and we find the evidence of PW-1 Shripat, PW-2 Dhondu wholly reliable and the evidence of PW-3 Vithal and PW4 Maruti reliable to the extent of establishing the identity of the accused, according to us, even if the other circumstantial

¶165

jt.550-1991

¶166

evidence is left out of consideration, the prosecution has established beyond reasonable doubt that Kachru had been killed by the accused and that PW-2 Dhondu had been assaulted by the accused.

¶167

The accused had formed an unlawful assembly after the incident of stone pelting. It is obvious that the accused were lying in wait for Dhondu and others to come at the scene of the incident. The accused possibly apprehended that Dhondu would come to the Police Station for lodging a report. The common object of the assembly therefore, must be to assault PW-2 Dhondu in order to deter him from going to the Police Station for lodging a report. The accused were not to know that Dhondu would be accompanied by deceased Kachru, who was the sarpanch. The common object of the assembly therefore, could not be to commit the murder of deceased Kachru but the common object of the assembly must be to cause grievous hurt to PW-2 Dhondu in order to deter him from going to the Police Station. If the common object of the assembly was to commit murder of deceased Dhondu, we find that the injuries sustained by PW-2 Dhondu were not sufficient in ordinary course of nature

¶168

jt.550-1991

¶169

to cause death and consequently, the common object could not have been to commit murder of deceased Dhondu. As pointed out by us above, the accused were not knowing that Dhondu would be accompanied by Kachru and consequently, the common object of the assembly would not be to commit murder of Kachru but to inflict grievous injuries. The fatal injuries to deceased Kachru was inflicted by Accused No.8 Bapu, who has expired during the pendency of the Appeal. As per the postmortem report, deceased Kachru had died due to subarachnoid hemorrhage and subdural hemorrhage due to trauma. The prosecution witnesses have claimed that Accused No.8 Bapu had inflicted the blow of axe on the head of deceased Kachru. The medical opinion does not suggest that the other injuries sustained by Kachru were sufficient in ordinary course of nature to cause his death. Thus, the fatal injury was inflicted by Accused No.8 Bapu. None of the other injuries individually were sufficient in ordinary course of nature to cause death and since the common object of the unlawful assembly was not to commit murder of deceased Kachru or Dhondu, the other injuries are not fatal.

¶170

jt.550-1991

¶171

Thus, in our opinion, the prosecution has not been able to establish the offence against the accused under Section 302 r/w. 149 of the Indian Penal Code. Original Accused No.8 Bapu has expired during the pendency of the Appeal and in our opinion, the Appellants before us would be liable to be convicted for an offence punishable under Section 304 part II of the Indian Penal Code. The offence is alleged to have been committed on 18.3.1984. The Appeal was filed by the Appellants in this Court in 1991 and since then, the Appellants are on bail. In the light of the passage of time that is of 30 years from the date of the incident till the decision of the Appeal, in our opinion, sentence of R.I. for three years and fine of Rs.10,000/- against each of the accused would meet the ends of justice.

¶172

Accordingly, this Appeal is partly allowed and the conviction and sentence of the Appellants for offence punishable under Section 302 r/w. 149 of the Indian Penal Code is hereby set aside and instead the Appellants are convicted for offence punishable under Section 304 part II r/w. 149 of the Indian Penal Code and sentenced to R.I. for three years and each accused to pay fine of Rs.10,000/- in default of which to undergo further R.I. for

¶173

jt.550-1991

¶174

one year. The conviction and sentence of the Appellants for offence punishable under Sections 324 and 325 r/w. 149 of the Indian Penal Code, under Section 323 r/w. 149 of the Indian Penal Code, under Sections 147 and 148 of the Indian Penal Code is hereby maintained. The substantive sentences shall run concurrently and the Appellants shall be entitled for set off. The amount of fine if recovered, be paid to father of deceased Kachru and in case the father of deceased Kachru has expired, amount of compensation be paid to the next nearest relative. Appellants are granted 12 weeks' time to surrender. Their bail bonds stand cancelled.

¶175

Appeal is thus partly allowed as indicated above.

¶176

(G. S. KULKARNI,J.) (P. V. HARDAS,J.)

¶177

jt.550-1991

Bhiwa Sidhu Patil and Others. v. the State of Maharashtra

Case brief

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Bhiwa Sidhu Patil and Others. v. the State of Maharashtra

Case brief

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