Partly allowed

Keshav Nanaji Deore and Ors. v. the State of Maharashtra and Anr.

Bombay HC26 Nov 2014APEAL/739/2012

Case brief

AI extract

What is this about?

In a murder appeal, the High Court acquitted two appellants who wielded sticks, granting them benefit of doubt due to conflicting medical evidence and lack of proof regarding shared murderous intention under Section 34 IPC, while upholding the conviction against the appellant who caused fatal axe injuries.

What did the court decide?

Conviction and sentence of accused Nos. 1 and 3 quashed; accused acquitted. Conviction of accused No. 2 altered from Section 302 read with Section 34 to Section 302 simpliciter; his appeal dismissed.

Keshav Nanaji Deore and Ors. Vs the State of… — Murder and Culpable Homicide | Bombay HC (2014)

jt-cri-apeal-739-12

pdp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 739 OF 2012

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Keshav Nanaji Deore

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Age 64 yrs. Occ: Farmer.

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Hemraj Keshav Deore Age 22 yrs., Occ: Farmer

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Dhanraj Keshav Deore Age 25 yrs., Occ: Farmer R/o Karajgavhan, Tal. Malegaon District : Nashik. .. Appellants (Org.Accd. Nos.1 to 3)

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Versus

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The State of Maharashtra and anr. .. Respondents

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Mr. Sachindra Shetye a/w Mr. M. N. Sandhyanshiv for appellants. Mr. H. J. Dedhia, APP for State.

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

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

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The appellants/Original Accused Nos.1 to 3, who stand convicted for offence punishable under Section 302 read with Section 34 of

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the Indian Penal Code and sentenced to imprisonment for life and to pay a

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fine of Rs.5000/- each, in default of which to to undergo further RI for four months, by the Additional Sessions Judge, Malegaon (Nashik) dated

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18/05/2012, in Sessions Case No. 172 of 2008, by this appeal question the correctness of their conviction and sentence.

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

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PW 7 – PSI Shashikant Sonar, who was attached to the Taluka

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Police Station Malegaon, investigated an offence vide Crime No. 222 of 2008, which was registered at the police station. Initially, Police Head Constable Dilip Aher was entrusted with the investigation, who had arrested the accused. The injured Kishor was not in a condition to give his statement. On the next day, injured Kishor succumbed to his injuries and, therefore, Section 302 of the IPC was added. PW 7 – PSI Sonar, on being entrusted with the investigation, drew the inquest panchanama of the dead body of deceased Kishor in the presence of panchas at Exh. 23. The dead body was then referred for postmortem examination under requisition at Exh. 33. PW 7 – PSI Sonar thereafter drew the scene of the incident panchanama in the presence of panchas at Exh. 28. He recorded the statements of witnesses. Accused No.2 – Hemraj, during custodial interrogation, expressed his willingness to point out the place where the

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weapons had been concealed. Accordingly, his memorandum was darwn

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in the presence of panchas at Exh. 52. Accused No. 2 led the police and the

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panchas to a temporary shed near his house and produced two sticks and one axe, which came to be seized under seizure memo at Exh. 53. The axe and the clothes of deceased, which had been seized, were referred to the

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C.A. for examination under requisition at Exh. 56. The report of the C.A. at Exh. 57 indicates that the clothes of deceased were stained with blood of

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“A” group, while the axe was found stained with human blood, thought the group could not be determined. Further to the completion of investigation, a charge-sheet against the appellants was filed.

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Injured Kishor had been initially examined by PW 4 – Dr. Shewale, who had noticed the following external injuries :-

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(i) C.L.W. over left parietal 4 x 2 x 2 cm.

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(ii) C.L.W. on occipital region 3 x 1 x 1 cm. (iii) Left eye black eye with oedema of upper lid.

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(iv) Large hamatoma parietal left side.

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He opined that the injuries were caused within 24 hours and

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the injured was unconscious and was in gasping stage when he was brought

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to the hospital. The medical case papers are at Exh. 42. C.T. Scan of

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injured Kishor was also taken and as per the C.T. Scan, injured Kishor had sustained the following internal injuries :-

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(i) A multiple hamorrhagic contusions of superficial cortex of left parietal lobe.

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(ii) Small associated fresh subdural bleed over left parietal lobe.

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(iii) Severe diffuse cerebral edema.

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(iv) Transtentorial herniation. Ventricular system is chinked. Sylvain fissures and basal cisterns are effected.

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(v) Midline structures are deviated to right side and multiple fractures of left parietal bone.

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Postmortem on the dead body of deceased Kishor was

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performed by PW 3 – Dr. Chavan, who noticed the following external injuries:-

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(i) Sutured wounds (two) over occipital region. One injury is 5 cm., second injury is 8 cm.

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(ii) Big contusion over left fronto parietal temporal region with black eye, size 30 cm x 8 cm. There were no fractures.

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He opined that all the injuries were antemortem injuries. On

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internal examination, he noticed a big hamatoma over left parieto temporal frontal region with occipital region, size 40 cm x 40 cm. Brain was congested with big subdural hamatoma over left side of fronto parietal temporal region with occipital region 40 x 30 cm with intra-cerebral bleed.

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He, therefore, opined that deceased Kishor had died due to shock due to head injury. The postmortem report is at Exh. 35.

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On the case being committed to the Court of Sessions, Trial Court vide Exh. 14 framed charge against the appellants for offence punishable under Sections 302 read with 34, 326 read with 34, 504 read with 34 and 506 read with 34 of IPC. The accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined seven witnesses. The defence of the accused was of denial. The trial court by placing implicit reliance on the testimony of the two eye witnesses, convicted and sentenced the appellants as afore-stated.

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The pivot of the prosecution case is the testimony of PW 2 – Bhausaheb, brother of deceased Kishor. According to Bhausaheb, the lands of the accused are adjoining his agricultural land. On the day of the incident, deceased Kishor had gone to the agricultural field for cutting the

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grass which had grown on the boundary. According to Bhausaheb, he heard the cry of Kishor and, therefore, looked in that direction and noticed that accused nos.1 and 3 assaulting Kishor by sticks and accused no.2 – Hemraj assaulting Kishor by an axe. According to Bhausaheb, accused no.2 – Hemraj assaulted Kishor by an axe on his head. The other accused assaulted Kishor by sticks on the other parts of the body. On seeing the incident, PW 2 – Bhausaheb along with PW 5 – Rekhabai, wife of Kishor, rushed to the scene of the incident. On reaching the scene of the incident, he noticed Kishor lying in a pool of blood and was unconscious. The accused, meanwhile, had fled from the scene of the incident. Bhausaheb, therefore, took injured Kishor in an auto-rickshaw to the hospital of PW 4 - Dr. Shewale. According to him, he had informed Vadner Police Station. One office from that police station had come to the hospital and had made an attempt at recording the statement of injured Kishor. However, since Kishor was not in a condition to give his statement, statement of Kishor was not recorded. The police officer further informed Bhausaheb to lodge a report at the police station within whose jurisdiction the incident had occurred. Accordingly, PW 2 – Bhausaheb lodged his report at Exh. 31.

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PW 2 – Bhausaheb has been cross-examined at length and has

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admitted that prior to hearing the cry of Kishor, he was giving fodder to the cattle. He has also admitted that PW 5 – Rekhabai was inside the house when Kishor had cried for help. He has admitted that the accused had fled, carrying the weapons with them. Bhausaheb has reiterated that he had seen the accused while assaulting deceased Kishor. An admission is elicited that the scene of the incident was at a distance of about 100 ft. from the house of Bhausaheb. It has also been elicited that when Bhausaheb was at a distance of about 25 ft. from the scene of the incident, the accused had fled. Omission is elicited that he was not stated in his report that Kishor was not in a condition to speak. Omission is also elicited that he had not stated in his report that he had brought an auto-rickshaw and in that auto-rickshaw Kishor was taken to the hospital.

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6. Prosecution has examined PW 5 – Rekhabai, wife of deceased

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Kishor, who deposes on lines similar to that of PW 2 – Bhausaheb. PW 5 – Rekhabai has also been extensively cross-examined and nothing of substance has been elicited in her cross-examination.

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Mr. Shetye, learned counsel for the appellants has urged

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before us that the no reliance whatsoever can be placed on the testimony of PW 5 – Rekhabai as admittedly she was inside the house at the time of the incident. It is further urged before us that there is enormous delay of 12 hours in reporting the incident to the police and the delay, therefore, affects the credibility of PW 2 – Bhausaheb as an eye witness to the incident. Learned APP has supported the findings arrived at by the Trial Court.

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PW 2 – Bhausaheb has admitted that when he was heard the

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cry of Keshor, PW 5 – Rekhabai was inside the house. As pointed out by us above, both the witnesses had rushed to the scene of the incident and while going to the scene of the incident, had witnessed the assault on deceased Kishor. Even if the evidence of PW 5 – Rekhabai is left out of consideration, the evidence of PW 2 – Bhausaheb certainly establishes the presence of the appellants at the scene of the incident. PW 2 – Bhausaheb has been extensively cross-examined and nothing has been elicited in his cross-examination which would affect his credibility. At the close of crossexamination, PW 2 – Bhausaheb has emerged as a reliable witness.

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It appears that the First Information Report was lodged after

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12 hours of the incident. Injured Kishor had been shifted to the hospital

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and was undergoing the treatment in the hospital. The anxiety of the relatives of the injured would be to ensure that the injured receives the best medical aid and at the earliest. The conduct of the eye witnesses, therefore, in remaining in the hospital to ensure that proper medical treatment is given to injured cannot be used against them for urging that there is delay of 12 hours in lodging the report. PW 2 – Bhausaheb had informed the police station, but unfortunately the police officers of that police station, though had gone to the hospital, did not record the statement of Bhausaheb. That police officer has not been examined by the prosecution. For failure of the police to record the statement of a witness, who is available, cannot be a ground for discrediting the testimony of an otherwise reliable witness. Lapses on the part of the Investigating Officer or the police, cannot be made a foundation for discrediting an eye witness. We do not find that the behaviour of PW 2 – Bhausaheb to be so unnatural as to disbelieve him in respect of the assault.

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PW 4 – Dr. Shewale, in his cross-examination, has admitted

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that injury nos.1 to 4 could not be caused by stick. PW 3 – Dr. Chavan,

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who had performed the postmortem examination, has opined that injury no.2 could be caused by a stick. However, in the face of the conflicting opinion of the experts, in our opinion, the accused nos.1 and 3, who are alleged to have wielded a stick, would be entitled to be given the benefit of doubt. As pointed out by us above, though sticks had been seized, they were not referred to the Chemical Analyzer. Moreover, the sticks had been discovered at the behest of accused no.2 – Hemraj and not at the behest of accused nos.1 and 3. However, since the accused no.1 and accused no.3 were present at the scene of the offence, the learned APP has urged before us that the accused would be liable to be convicted with the aid of Section 34 of the IPC as these accused had shared the intention of accused no.2 – Hemraj in committing murder of deceased Kishor.

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Merely because accused nos.1 and 3 had accompanied accused

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no.2 to the scene of the incident, it cannot be said that these accused shared the intention of accused no.2 in committing murder of deceased Kishor. A reference in his behalf may usefully be made to the judgment of the Supreme Court in Dharmpal & Ors. vs. State of Haryana [AIR 1978 SC 1492] . In the said judgment, the Supreme Court held that there is no law

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which lays down that a person accompanying principal culprit, shares his intention in respect of every act which the later might eventually commit. In the present case, there is no evidence regarding the genesis of the incident and, therefore, it cannot be said that accused nos.1 and 3 shared the intention of accused no.2 in committing murder of deceased Kishor. The accused nos.1 and 3, in our opinion, therefore, would be entitled to be given the benefit of doubt.

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As regard accused no.2, we find that accused no.2 had caused

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serious injuries on the head of deceased Kishor. These injuries were contused lacerated wounds which had caused massive internal damage. Hamatoma was of the size of 40 x 40 cm. and 40 x 30 cm. The deceased had succumbed to his injuries in less than 24 hours. The accused no.2 had wielded an axe in causing the injuries and, therefore, his intention is apparent. In any event, accused no.2 – Hemraj had intentionally caused the injuries which were sufficient in ordinary course of nature to cause death and deceased Kishor had, in fact, died because of the said injuries. The case of accused no. 2 – Hemraj would fall squarely in Clause Thirdly of Section 300 of IPC. In the light of the judgment of the Supreme Court

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in Virsa Singh vs. State of Punjab [ AIR 1958 SC 465] , it is immaterial if accused no.2 – Hemraj did not have the intention to commit murder of deceased Kishor as the injuries caused by accused no.2 – Hemraj to deceased Kishor were intentional injuries and were sufficient in ordinary course of nature to cause his death and, in fact, Kishor had died due to the said injuries. Accused No. 2, therefore, has been rightly convicted for an offence punishable under Section 302 of the IPC.

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This appeal is, therefore, partly allowed. The conviction and sentence of accused no.1 – Keshav Nanaji Deore and accused no. 3 – Dhanraj Keshav Deore is hereby quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Fine, if paid by them, be refunded to them. Their bail bonds stand cancelled.

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The conviction of accused no. 2 – Hemraj Keshav Deore is altered from Section 302 read with Section 34 to Section 302 of IPC simpliciter, maintaining his sentence. The appeal filed by him is, therefore, dismissed with these modifications.

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

Keshav Nanaji Deore and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Keshav Nanaji Deore and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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