A fatal assault with an axe and iron rod raised challenges to a child eyewitness's credibility and alleged medical inconsistencies. The court accepted her testimony, upheld both accused's convictions and life sentences for murder with common intention, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
( 1 ) criapl365.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL APPEAL NO.365 OF 2013
1.Krushna S/o. Jagannath Sirsath..Appellants
Age-25 years, Occu-Labour,
R/o. Bhaijalivasti, Tq. Dharur,
Dist.Beed
2.Parvatibai W/o. Jagannath Sirsath
Age-40 years, Occu-Household,
R/o. As above
Versus
The State of Maharashtra..Respondent
Through Police Station Dharur,
Tq. Dharur, Dist. Beed
Mr.P.P.More, Advocate for the appellants (appointed)
Mr.R.V.Dasalkar, APP for the respondent/State
CORAM :T.V.NALAWADE &
S.M. GAVHANE, JJ.
RESERVED ON :18.12.2017 PRONOUNCED ON :27.02.2018
J U D G M E N T [PER: S.M. GAVHANE, J.]
.The appellants original accused Nos.1 and 2 who
have been convicted and sentenced to suffer imprisonment
for life and to pay fine of Rs.1,000/- [Rupees One
Thousand] in default, to suffer rigorous imprisonment for
one month, each, for the offence punishable under Section
( 2 ) criapl365.13
302 read with Section 34 of the Indian Penal Code [for
short 'the IPC'] as per the judgment and order dated
12.06.2013 passed by Additional Sessions Judge,
Majalgaon, Dist. Beed in Sessions Case No.73/2012 have
preferred this appeal challenging the said conviction and
sentence.
2.The prosecution case as it appears from the
police papers, is as under:-
A]Accused No.1 is the son and accused No.2 is the
widow of the deceased Jagannath Bhaguji Sirsath. Angad
and Urmila (PW-4) are the other issues of the deceased
and the accused No.2. Angad was residing at Pune at the
relevant time. The deceased was residing in a house
constructed in his agricultural land at Bhaijalivasti –
Jahangirmoha alongwith the accused and Urmila (PW-4). The
informant Kushaba Bhaguji Sirsat (PW-3) is the brother of
the deceased. He owns agricultural land and house
adjoining the agricultural land of the deceased. PW-3
used to reside in the said house. Accused No.1 is
married, but his wife was residing with her parents.
B]It is alleged that the deceased was addicted to
liquor and under the influence of liquor, he used to pick
( 3 ) criapl365.13
up quarrels with the accused oftenly. The accused were
saying the deceased that he would sale agricultural land
due to addiction of liquor and therefore to transfer the
agricultural land in their names. On this count there
occurred a quarrel amongst them two month's prior to the
incident. It is alleged that, the accused had threatened
the deceased of dire consequences.
C]On 28.07.2012 the accused worked in their field,
as usual, till evening. The deceased had been to Dharur.
Thus, his daughter Urmila [PW-4] was only present in the
house. She cooked food. At about 07.00 pm one after
another both the accused returned home. After sometime
the deceased came home under the influence of liquor. He
then started abusing both the accused. The accused No.2
got irritated on account of hurling of abuses. She
therefore, said to accused No.1 that to get rid-off the
nuisance of the deceased, he needs to be finished at
once. Then she hit a kitchen iron rod on the forehead of
the deceased. The deceased, who was sitting on the cot,
fell down. At that moment, the accused No.1 gave blows of
axe on the backside of the head of the deceased. The
deceased was bleeding profusely.
D]
Upon witnessing the aforesaid gruesome incident,
( 4 ) criapl365.13
Urmila [PW-4], who was then 14 years old, ran to the
neighboring house of her uncle, viz., the informant. She
narrated about the incident to him. Both of them then
came to the spot of occurrence. They saw the deceased in
the pool of blood. He was motionless. The informant then
intimated about the incident to his brother Bappa and
father, who were residing at Village Jahangirmoha at the
relevant time. They came there. Thereafter, the informant
approached Police Station, Dharur in the night. His
complaint came to be recorded at about 00.45 hours on
29.07.2012. Treating the said complaint as FIR (Exh.21),
the Police Head Constable Bashir Shaikh registered the
Crime No.95/2012 against the accused for the offence
under Section 302 r/w Section 34 of the IPC and entrusted
investigation to PSI Rathod [PW-7].
E]During the investigation PSI Rathod had drawn
the enqeust panchanama on 29.07.2012 [Exh.26] at about
07.00 am at the spot. He then referred the dead body for
autopsy to Rural Hospital, Dharur. Dr.Ravi More [PW-1]
conducted post mortem examination and issued PM report
[Exh.16] and he opined that death was caused due to head
injury. This was followed by conducting spot panchanama
[Exh.29] in presence of the panch witnesses Brahma Sirsat
[PW-6] and Prakash Kokate. He seized the blood stained
slippers, blood soaked cloth, blood stained soil, plain
soil and the clothes on the person of the deceased, as
per the spot panchanama [Exh.29]. He entrusted further
investigation to P.I. Sudke [PW-8] on 29.07.2012
F]P.I. Sudke arrested the accused on 29.07.2012.
He seized clothes on the person of the accused NO.1 vide
panchanam [Exh.24] and that of accused No.2 by drawing
panchanama [Exh.25]. On 30.07.2012, while in custody of
the police, the accused No.1 made memorandum statement
[Exh.30] to produce the weapon axe used in the offence
which was reduced in writing in presence of two panchas.
Thereafter, the accused No.1 led the police party and
panch witnesses to his house and produced an axe stained
with blood, kept hidden in a heap of fodder. It was
seized by drawing panchanama [Exh.31]. On 31.07.2012 the
accused No.2 also made a memorandum statement [Exh.32] to
produce the iron rod used in the offence. She then
produced the same, kept hidden in the shrubs near her
house. The iron rod was seized as per panchanama
[Exh.33].
G]On 04.08.2012 P.I. Sudke addressed a letter to
Taluka Magistrate for procuring the map of the spot of
incident [Exh.37]. Vide communication dated 13.08.2012
( 6 ) criapl365.13
[Exh.38] Circle Inspector, Dharur furnished the copy of
the map of spot. On 07.08.2012 Urmila [PW-4] was referred
to JMFC, Dharur for recording her statement under Section
164 of the Criminal Procedure Code.
H]On 13.08.2012 the seized articles, viz., the
clothes of the deceased, the accused, blood stained and
plain soil, the slippers and the blood soaked cloth, the
blood samples of the deceased and the accused Nos.1 and 2
were referred for Chemical Analysis to Regional Forensic
Science Laboratory, Aurangabad through Police Naik Jadhav
[PW-2]. C.A. reports dated 06.03.2013 [Exh.40 and 41]
were collected and included in case paper.
I]After completion of the investigation the
charge-sheet was submitted in the Court of JMFC, Dharur
who committed the case to the Additional Sessions Court,
at Majalgaon as offence under Section 302 of the IPC was
exclusively triable by the Sessions Court.
3.The charge was framed against the accused for
the offence punishable under Section 302 read with
Section 34 of the IPC to which they pleaded not guilty
and claimed to be tried. Their defence is denial. No
defence witness has been examined by the accused. It
( 7 ) criapl365.13
appears that according to the accused death of the
deceased was accidental and they have been falsely
implicated due to enmity by the informant [PW-3].
4.To prove the guilt of the accused the
prosecution examined in all eight witnesses and relied
upon the panchanamas, PM report and CA reports referred
above.
5.On considering the evidence adduced by the
prosecution learned trial Court held that the prosecution
has proved offence under Section 302 read with Section 34
of the IPC against the accused and sentenced them as
referred earlier in introductory para of this judgment,
which is under challenge in this appeal by the
appellants/accused on several grounds mentioned in the
appeal memo.
6.LearnedAdvocateappearingforthe
appellants/accused submits that the trial Court erred in
believing the evidence of only eye witness Urmila [PW-4]
daughter of deceased who is a child witness. The trial
Court has not considered the aspect that said child
witness is in the custody of the informant Kushaba Sirsat
[PW-3] since time of incident and there is every
( 8 ) criapl365.13
possibility of her being tutored by informant. Accused
had no intention or motive to kill the deceased. They
have not shared common intention to kill the deceased.
There is inconsistency in the medical and ocular
evidence. The learned Advocate submitted that thus the
prosecution has failed to prove the offence under Section
302 of the IPC against the accused beyond reasonable
doubt and therefore, they are entitled to be acquitted by
allowing the appeal by setting aside the impugned
judgment and order of conviction and sentence. To
substantiate his argument learned Advocate appearing for
the accused has relied upon following decisions:
1.Shivappa Buddappa Kolkar @ Buddappagol
Vs. State of Karnataka 2004 AIR (SC)5047.
2.Farukh Shaikh Mohammed Vs State of
Maharashtra 2006(1)Bom.C.R.(Cri.)844 Bombay High
Court.
3.Ramajan Khajabhai Shaikh Vs State of
Maharashtra 2006(2)Bom.C.R.(Cri.)976 Bombay High
Court.
4.Mahadeo Kundalik Vaidya & others Vs
State of Maharashtra 2002(Supp.1)Bom.C.R.
(Cri.)894 Bombay High Court.
5.Barku Mahadu Ghute Vs State of
Maharashtra 2007(1)Bom.C.R.(Cri.)728 Bombay High
Court
( 9 ) criapl365.13
6.Hallu Vs State of Madhya Pradesh 1974
DGLS(SC)108 Supreme Court.
.In a case of Shivappa Buddappa Kolkar @
Buddappagol (Supra) only one blow with axe was dealt with
it and no other injuries inflicted on the deceased.
Considering the conduct of the appellant and in view of
the very findings recorded by the High Court, the Hon'ble
Apex Court has held that the appellant cannot be imputed
with the intention to cause death of Hanamant the
deceased. Accordingly conviction of the appellant
recorded by the High Court for the offence punishable
under Section 302 of the IPC was modified to under
Section 304 Part-II of the IPC.
.So also in a case of Farukh Shaikh Mohammed
(Supra) in the appeal against conviction of the appellant
for the offence under Section 302 of the IPC, it was the
case of the prosecution that accused assaulted the
deceased by knife. Observing that at the time of
incidence accused was not even armed with any weapon, it
was held that assault committed by the accused with
knowledge that it was likely to cause death but without
any intention to cause death or to cause bodily injury as
is likely to cause death the conviction of the
appellant/accused under Section 302 of the IPC was set
( 10 ) criapl365.13
aside and he was convicted for the offence punishable
under Section 304 Part-II of the IPC and instead of
sentencing him to suffer the sentence immediately, he was
directed to be released on probation bond for good
conduct for a period of three years with one surety in
the sum of Rs.25,000/- [Rupees Twenty Five Thousand] with
condition.
.In a case of Ramajan Khajabhai Shaikh (Supra) in
theappealagainsttheconvictionofthe
appellant/accused for the offence under Section 302 of
the IPC on holding that there appears to be no motive or
intention for killing deceased and that it is a case of
of culpable homicide not amounting to murder the
conviction of the appellants for the offence under
Section 302 of the IPC was set aside and instead they
were convicted under Section 304 Part-II of the IPC for a
period of six years imprisonment which they had already
undergone.
6-A.In a case of Mahadeo Kundalik Vaidya & others
cited (Supra) in paragraph Nos. 11,12 and 13 this Court
[CORAM: Vishu Sahai and A.S.Bagga, JJ.] has observed
thus:
( 11 ) criapl365.13
“11. Apart from this, the manner of assault as given out by these eye-witnesses, in our view, is not supported by the medical evidence. According to both the eye-witnesses, namely, Sharda and Kalindi, the four appellants assaulted the deceased with axes. It is common knowledge that axes cause incised or cut injuries, unless they are used from blunt side, in which eventuality they would cause contused lacerated wounds. In the instant case, both Sharda and Kalindi, have not stated that axes were used from the blunt side. In such a situation, in our view, the presumption would be that axes were used in the normal manner, i.e. from sharp side and the evidence of the autopsy surgeon, who found seven contused lacerated wounds on the corpse of the deceased and did not find any single incised wound on the corpse, would falsify the pattern off assault given out by the eye-witnesses. It is true that the autopsy surgeon has stated that the seven contused lacerated wounds could be caused by a sharp weapon like axe. However, we are not prepared to accept his opinion, because axe in the normal course would cause an incised wound and not contused lacerated wound.
It was a different matter had in this case there wound have been a large number of incised or cut wounds and, also some contused lacerated wounds, because some times, it happens that instead of the sharp side of the axe striking, the blunt side of the axe strikes. But this is not the case here. Here, not even a single incised wound has been found on the corpse of the deceased by
( 12 ) criapl365.13
the autopsy surgeon. It is also pertinent to mention that the autopsy surgeon, during the course of his cross-examination, in paragraph 11, has admitted that the axes, articles Nos. 13,14,15 and 16 were shown to him and in para 13 conceded that the length of the axes did not correspond to the length of the injuries Nos. 1,4 and 7 found by him on the corpse of the deceased. He also conceded in the said para that excepting Injury No.4, the breadth of the antemortem injuries did not correspond with the breadth of the axes. It is pertinent to mention that, during the course of examinatnion-in-chief, axes (articles Nos.13 to 16) were shown to Kalindi, PW-3, and she admitted that these were the very axes with which the appellants had assaulted the deceased. In our view, in view of the admissions made by the autopsy surgeon in paragraph 13 of his deposition, to which we have referred to earlier, the prosecution case that the appellants assaulted the deceased with the axes (Articles Nos.13 to 16) cannot be accepted. In our judgment, this is a serious infirmity which would discredit the credibility of the eye-witnesses.
Apart from it, we find that the perusal of the autopsy report shows that semi-digested food was found in the stomach of the deceased. In this connection, it would be pertinent to refer to paragraph 13 of the deposition of the autopsy surgeon, wherein, during the course of his cross-examination, he admitted that vegetarian food would taken 4 to 6 hours for being semi-digested. According to Sharda and Kalindi, the murder of the deceased took
( 13 ) criapl365.13
place on 11.06.1994 at about 09.15 am. Even if the maximum latitude is given to the prosecution, the deceased would have eaten his food at about 05.15 am. In our view, 05.15 am is not the normal time when people take food. It should be borne in mind that the golden rule in criminal cases is to prefer the probable to the possible.
( 14 ) criapl365.13
suggestion being correct appears to be very high.
“..... Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. A Court can either believe the prosecution witnesses unreservedly and explain away the conflict by holding that the witnesses have merely exaggerated the incident or rely upon the medical evidence and approach the oral testimony with caution testing it in the light of the medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and creates confidence and there is no appreciable reason for the false implication of any accused. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method”.
We are in respectful agreement with the ratio laid down in the said case. In the instant case, in our view, for the reasons mentioned above, the evidence of the eye-witnesses does not appear to be beyond reproach and, as we have seen above, there
( 15 ) criapl365.13
was acute enmity between the appellants on one side and the informant, the eye-witnesses and the deceased on the other. In such a situation, the possibility of false implication of the appellants cannot be excluded. In our view, it would be safer to accept the medical evidence and when we do this, we are constrained to observe that the ocular account would have to be rejected.”
6-B.In a case of Barku Mahadu Ghute (Supra) in the
appeal against conviction of the appellant/accused for
the offence under Section 302 of the IPC based on
uncorroborated testimony of 8 years old child, observing
that child witness in cross-examination admitted that he
was tutored to state in the Court that he saw accused
committing assault and further observing that there were
lapses on part of prosecution, conviction recorded
against appellant/accused was set aside. In a case of
Hallu cited (Supra) in paragraph 11 Supreme Court has
observed thus:
“11. The post mortem report prepared by Dr. N.Jain that on the body of Jagdeo were found three bruises and a hematoma. On the body of Padum were found four lacerated wounds and two bruises. According to the eye-witnesses the two men were attacked with lathis, speares and axes but that clearly stands falsified by the medical evidence. Not one of the injuries
( 16 ) criapl365.13
found on the person of Jagdeo and Pandum could be caused by a spear or an axe. The High Court however refused to attach any importance to this aspect of the matter by saying the witnesses had not sated that “the miscreants dealt axe blows from the sharp-side or used the spear as a piercing weapon”. According to the High Court axes and spears may have been used from the blunt side and therefore the evidence of the eye-witnesses could safely be accepted. We should have thought that normally when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp edged or a piercing instrument was used as a blunt weapon.”
7.On the other hand learned APP appearing for the
respondent/State has submitted that the trial Court has
rightly believed the evidence of child witness Urmila
[PW-4] as she has no reason to falsely implicate accused
her brother and mother to cause death of her father the
deceased. He submits that considering the medical and
ocular evidence, this Court can reach to its own
conclusion as to whether the act of the accused in
causing injuries noticed on the person of the deceased is
culpable homicide amounting to murder punishable under
( 17 ) criapl365.13
Section 302 of the IPC. To support his argument learned APP has relied upon the decision in the case of Sudam Kisan Dhurjad Vs State of Maharashtra reported in 1995 Cri.L.J. 4029 Bombay High Court. So also, learned APP has relied upon the decision in the case of Mahadeo Kundlik Vaidya and others (Supra), relied upon by the learned Advocate for the accused.
8.We have carefully considered the submissions of
the learned Advocate appearing for the appellants/accused
and learned APP appearing for the respondent/State and
with their able assistance we have perused the evidence
adduced by the prosecution. We have gone through the
impugned judgment and order.
9.To prove homicidal death of the deceased the
prosecution has relied upon the evidence of Dr. Ravi More
[PW-1] who conducted postmortem on the dead body and
issued postmortem report [Exh.16]. Dr.More in his
evidence [Exh.15] stated that on 29.07.2012 he was
attached to Rural Hospital, Dharur as a Medical officer
and at 09.05 am when he carried out the autopsy, he
noticed following injuries :
. External injuries:
( 18 ) criapl365.13
area.
Internal injuries:
.According to Dr. More cause of death was due to
head injury. Above mentioned injuries were antemortem.
Said injuries can be caused by hard and blunt object.
External injury Nos. 1 and 2 can be caused by handle of
the axe. Above referred internal injuries were
corresponding to the external injury Nos. 1 and 2. He
stated that accordingly he prepared postmortem notes
[Exh.16] which bears his signature. He stated that
external injury No.3 mentioned above can be caused by
Article-9 iron rod and external injury Nos. 1 and 2 can
be caused by handle of axe Article-8. He stated that on
30.07.2012 he collected blood samples of both the accused
in the Rural Hospital, Dharur.
10.In the cross-examination Dr. More admitted that
external injury Nos.1 and 2 cannot be caused by handle of
axe Article-8 and further voluntarily stated that
aforesaid injuries can be caused by blunt end of the axe
Article-8. He admitted that blunt end of the axe should
result in an oval shaped injury. External injury Nos. 1
and 2 do now show oval shaped injuries. Moreover, he
stated that injury by blow of big iron rod Article-9
shall be crush injuries. The size of iron rod Article-9
is more than the size of the external injury No.3. Said
injury No.3 is not a crush injury. He admits that injury
No.3 cannot be caused by iron rod (Article-9). He also
stated that external injury Nos. 1 and 2 are possible
when a person falls on stony surface with sufficient
amount of speed. His evidence regarding cause of death
i.e. the Head injury has gone unchallenged in his cross-
examination. The postmortem report [Exh.16] also shows
that Dr. More noticed above referred external as well as
( 20 ) criapl365.13
internal injuries on the person of the deceased when he
conducted postmortem examination on the dead body and so
also postmortem report shows head injury as probable
cause of death. Thus, on considering the above evidence
one thing is certain that death of the deceased was not
natural and he died due to head injury noticed by Dr.
More. However, considering the evidence of Dr. More
regarding possibility of suffering external injury Nos. 1
and 2 due to fall on stony surface as referred above and
defence of the accused that deceased sustained head
injury due to dash by the bullock accidentally to arrive
at the conclusion whether death of the deceased was
homicidal or accidental, on the basis of above medical
evidence the other evidence relied by the prosecution to
connect the accused with the crime, is to be considered.
11.To connect the accused with the crime, the
prosecution has mainly relied upon the following evidence
and circumstances:
A]Evidence of eye witness Urmila [PW-4]
B]Evidence of informant Kushaba [PW-3]
C]Plea in defence of the accused and their
conduct.
D]Circumstantial evidence in the form of:
i]Memorandum Statement [Exh.30] of the
accused No.1 and Seizure of axe at his
instance as per panchahnama [Exh.31].
Mermorandum statement [Exh.32] of accused
No.2 and seizure iron rod at the instance
of said accused as per panchanama [Exh.33].
ii]Seizure of cloth of accused as per
panchanama [Exh.24 and 25] and taking
sample of blood of accused by Dr. More.
iii]Reports of Chemical Analyzer
[Exh.40 and 41]
12.The evidence of Urmila [PW-4] who is sole eye
witness is at Exh.22. Admittedly, she is daughter of the
deceased and accused No.2 and sister of accused No.1.
There is no dispute that she was aged 15 years when her
evidence was recorded in the Court on 04.04.2013. There
is no dispute that at the time of incident this witness,
the deceased and accused were residing in the house in
the agricultural land at Bhaijali Vasti Jahangirmoha and
the said agricultural land was owned by the deceased. The
evidence of Urmila [PW-4] is that the deceased her father
was alcoholic. On account of the vice of liquor, there
used to occur frequent quarrels amongst her father and
( 22 ) criapl365.13
both the accused. The accused used to insist the deceased
to transfer the agricultural land in their names whenever
her father used to come under influence of liquor. The
accused also used to threat the deceased of dire
consequences.
13.As regards the incident she [PW-4] deposed that
the incident occurred on 28.07.2012. That day both the
accused worked in their agricultural field. At about
07.00 to 07.30 pm both the accused returned home. At that
time her father the deceased returned from Dharur. He was
under the influence of liquor. Her father then started
abusing both the accused. Accused No.2 then said accused
No.1 that the deceased was always inviting quarrels by
consuming liquor. She then said to accused No.1 that he
needs to be finished. Her mother then took the iron rod
from the kitchen and hit it on the forehead of the
deceased. At that time her father was sitting on a cot.
He fell on the floor. Accused No.1 then gave blows of axe
on the backside of the head of her father. The deceased
was then profusely bleeding. The deceased then made
frantic movements of his hands and legs. Accused No.2
then said to accused No.1 that they need to flee from the
spot. She thereafter ran away to the house of her uncle
Kushaba [PW-3]. She told about the incident to him. She
( 23 ) criapl365.13
then returned to her home alongwith uncle Kushaba. They
noticed the deceased lying in the pool of blood. He was
motionless. He died. She identified the axe Article-8 and
iron rod Article-9 being the weapons used by the accused
in commission of the offence.
14.In her cross-examination her evidence about her
presence, presence of her father the deceased and
presence of both the accused in the house at the material
time of incident as well as her evidence regarding act of
both the accused in assaulting the deceased has gone
unchallenged. Moreover, in her cross-examination she has
denied that she was informed by her uncle Kushaba [PW-3]
that she has to give evidence in the Court and as told by
him she has deposed before the Court. She admitted that,
her uncle Kushaba is presently looking after them. She
also denied that she is required to follow his
instructions and further denied that she is deposing
false at the instance of her uncle Kushaba. Thus, nothing
is found in favour of the accused in the cross-
examination of PW-4.
15.As referred earlier there is no dispute that
when the evidence of PW-4 was recorded on 04.04.2013 she
was aged 15 years. The incident has taken place on
( 24 ) criapl365.13
28.07.2012 i.e. about eight months prior to recording of
evidence of PW-4. Thus, it is obvious that she was more
than 14 years on the day of incident. It has come in her
evidence that on the day of incident she was at home. The
food was usually cooked either by herself or by her
mother. At the time of incident her mother accused No.2
was sitting in the courtyard on the platform. This
evidence shows that PW-4 was sufficiently matured girl
and she was having enough understanding. Admittedly, she
is the daughter of the deceased and accused No.2 and
sister of accused No.1. Considering her relationship with
accused and the deceased, it cannot be said that she had
reason to falsely implicate her brother and mother being
the murderer of her father. When she was at the house on
the day of incident at the material time in the evening
at 07.00 to 07.30 pm when both the accused and the
deceased had come to the house it was quite natural and
probable for her to see the incident from the close
distance. Nothing is brought on record to show that she
was tutored by her uncle PW-3 to depose against the
accused.
16.It has come in the evidence of PW-4 that on the
next day of incident she had been to Dharur Police
Station alongwith her uncle Bappa. She was not enquired
( 25 ) criapl365.13
by the police authorities about the incident. 2-3 days
thereafter, she had been to the Court where she was
enquired about the incident by a Judge and she told about
the incident. This evidence shows that her statement was
not recorded by Police on the next day of incident when
she had gone to the Police Station. So also, said
evidence shows that her statement was recorded by a Judge
2-3 days after the incident. But, it appears that on the
next day i.e. 29.07.2012 her statement was recorded by
police. Therefore, it cannot be said that there was
inordinate delay in recording her statement by police
during the course of investigation. As observed above,
she was very well present in the house at the material
time of the incident. Considering the same and when there
is no reason to her to depose against the accused, delay
in recording her statement under Section 164 of the Code
of Criminal Procedure by the Magistrate in the course of
the investigation, is not sufficient to reject her
evidence. Thus, on the basis of evidence PW-4 an
inference can be drawn that on the day of incident in the
house of the deceased and the accused, accused No.2 hit
iron rod on the forehead of the deceased and accused No.1
then gave blows of axe on the backside of the head of
deceased and caused bleeding injuries to him.
17.Next is the evidence of Kushaba Sirsat [PW-3] at
Exh.20. He is admittedly brother of the deceased. At the
material time of incident he was residing in the house at
a distance of 200 to 300 feet from the house of the
deceased. He deposed that the deceased was an
agriculturist. The deceased used to consume liquor once
in a while. On account of vice of liquor there used to
occur quarrels of the deceased with the accused. The
accused used to insist the deceased to transfer the
agricultural land in their names. During the course of
such quarrels, the accused always used to give threat to
him of life, in case he did not transfer the land in
their names. Two months prior to the incident there
occurred a quarrel amongst the deceased and the accused.
At that time deceased was under influence of liquor and
accused insisted him to transfer the land in their names
and the accused threatened the deceased of life. He
therefore, intervened in the quarrel and pacified them.
18.As regards the incident PW-3 has deposed that
the incident occurred on 28.07.2012. He worked in his
field till about 07.00 pm. He then returned home and
washed his hands and legs. At that time, the daughter of
the deceased namely Urmila [PW-4] came running from the
house of the deceased to his home. She was crying and
shouting. She told him that accused No.1 assaulted the
deceased with an axe and accused No.2 had beaten the
deceased with an iron rod, used in kitchen. She also told
him that the deceased was lying in the pool of blood on
the floor and that the deceased was not making movement
and he had died. He stated that she was frightened at
that time. He stated that he informed his father about
the incident who resides in another house at a distance
of about 200 to 300 feet and also told his brother Bappa
on telephonically about the incident. He stated that he
alongwith brother and father went to the house of the
deceased and saw the dead body and noticed injuries on
the dead body of the deceased with the sharp edge of an
exe on the left and right side of the forehead and on the
backside of the head. Accordingly he, his brother and
father went to Dharur Police Station and he lodged the
FIR [Exh.21]. The evidence of this witness is hearsay in
nature. He has no direct knowledge about the incident.
However, since his house was at a distance of 200 to 300
fts from the house of the deceased and the deceased was
his brother it was quite natural for PW-4 his niece to
inform the incident to him and thereafter it was quite
natural for him to rush to the house of the deceased and
to see what has happened. Therefore, there is no reason
to disbelieve his evidence to the extent that PW-4
informed him about the incident immediately and
thereafter immediately he went to the house of the
deceased and saw the deceased lying in the pool of blood
in injured condition.
19.Learned Advocate appearing for the accused
inviting our attention to the medical evidence and ocular
evidence of PW-4 submitted that since there is no
consistency in the said evidence the case of the
prosecution that the deceased was assaulted by the axe
and the iron rod and therefore, he sustained external
injury Nos. 1 to 3 referred earlier cannot be accepted.
It is true that as referred earlier it has come in the
evidence of Dr. More that external injury Nos.1 and 2 can
be caused by the handle of the axe Article No.8 and in
the cross-examination he admitted that the external
injury No.1 i.e. CLW over right part of occipital area,
oblique 3x2x1 c.m. grievous, induced by hard object and
injury No.2 i.e. CLW over occipital area, 4 c.m. below
and lateral to injury No.1, oblique 3x1x1 c.m. grievous,
induced by hard object cannot be caused by handle of the
axe Article No.8 and he further voluntarily stated that
the said injuries can be caused by blunt end of the axe
Article No.8. Moreover, he admitted that blunt end of the
axe should result in an oval shaped injury. External
( 29 ) criapl365.13
injury Nos.1 and 2 do not show oval shaped injuries.
Nothing is brought in the cross-examination of eye
witness Urmila [PW-4] as to whether the blow was given by
the blunt side of the axe or by the sharp side of the axe
Article No.8. So also, it is not brought on record either
by the prosecution or by the accused that blade of the
axe was blunt or otherwise. Therefore, when Dr. More has
stated that injury Nos.1 and 2 can be caused by blunt end
of the axe, even if external injury Nos. 1 and 2 are not
oval shaped injuries it cannot be said that they are not
caused by axe Article No.8. Moreover, as referred
earlier, Dr. More has stated that external injury No.3
cannot be caused by iron rod Article No.9, injury No. 3
is not crush injury and if the injury is inflicted by
blow of iron rod Article No.9 it shall be crush injury.
It is pertinent to note that all the external injury Nos.
1 to 3 were on occipital area and over right forehead as
noted earlier in detail when the evidence of Dr. More is
referred. When these injuries were caused on the head on
occipital area and right forehead which is vital part of
the body and Dr. More has stated that injury Nos. 1 and
2 can be caused by blunt end of the axe and he noticed
internal injury No.1 below external injury Nos.1 and
fracture of occipital bone i.e. internal injury No.2 it
can be said that forcefully axe blow by the blunt end was
( 30 ) criapl365.13
given and therefore internal injury Nos.1 to 2 noted
earlier were caused to the deceased. So also, it can be
said that as head part of the body is hard, external
injury No.3 which was caused by iron rod was not crush
injury. It is true that in case blow of axe is given by
sharp side it causes incise or cut injuries. But, in case
sharp side of the axe is blunt then it would cause
contusion lacerated wounds like external injury Nos. 1
and 2 in the present case. Nothing is brought on record
in the evidence of Dr. More that external injury Nos. 1
and 2 are not at all possible by the blade or sharp side
of axe if it is blunt. On the contrary Dr. More has
stated that injury Nos.1 and 2 can be caused by blunt
end of the axe. In such circumstances the medical
evidence is consistent with ocular evidence of PW-4
regarding external injury Nos. 1 and 2 to the deceased.
Assuming for the sake of argument, that there is
inconsistency in the medical and ocular evidence, said
inconsistency is not sufficient to discard the ocular
evidence of PW-4 because ocular evidence would prevail
over the medical evidence.
20.As regards the defence of the accused, PW-3 the
informant brother of the deceased has denied that there
used to occur frequent quarrels between him and accused
( 31 ) criapl365.13
No.2 on account of land and other pretty issues. So also
he has denied that a day before the incident there
occurred quarrel of accused No.2 with him on account of
she-goats. So also, PW-4 daughter of the deceased has
denied that there used to occur frequent quarrels amongst
her mother and uncle Kushaba [PW-3] on account of grazing
of the cattle in his land. As referred earlier she has
denied that her father the deceased was sitting on the
cot and the bullock gave dash on forehead and then he
fell from the cot and in that he sustained injuries to
the back of his head. PW-3 has also denied that he
deposed false on account of his enmity with accused
taking disadvantage of injuries to the deceased. The
accused have not examined any witness in defence. Both
PWs-3 and 4 have no reason to depose against the accused.
Therefore, and when they have denied afore mentioned
suggestions to them, there is no substance in the defence
of accused regarding the deceased sustaining injuries
accidentally due to fall from the cot as the bullock gave
him dash on forehead and regarding frequent quarrel of
PW-3 with accused No.2 on account of grazing of cattle or
she-goats in his land.
21.The incident has taken place on 28.07.2012 at
about 07.00 to 07.30 pm in the house of the deceased
( 32 ) criapl365.13
where he was residing with accused and PW-4 daughter. As
observed earlier both the accused have not denied their
presence in the house at the relevant time. There is
nothing on record to show that after the incident they
were at the spot of incident or that they had taken the
deceased in the hospital. On the contrary PW-4 has stated
that after assaulting the deceased accused No.2 said
accused No.1 that they need to flee from the spot. All
above circumstances show that after the incident they ran
away from the spot of incident. The said conduct of the
accused also shows that as they had caused injuries to
the deceased as alleged by the prosecution they ran away
from the spot of incident.
22.Now coming to the circumstantial evidence the
panch Brahma [PW-6] and Investigating Officer PI Sudke
[PW-8] have stated that on 30.07.2012 accused No.1 made
memorandum statement [Exh.30] that he is willing to
discover/produce axe and then at his instance axe was
seized from the heap of fodder which was to the southern
side of the house of the deceased and panchnama [Exh.31]
was prepared. Though they have been examined at length on
behalf of the accused their evidence regarding memorandum
statement of accused No.1 and seizure of axe at his
instance is not shattered. Exh.30 memorandum statement
( 33 ) criapl365.13
also shows that accused No.1 made said statement that he
would produce axe hidden by him and it bears his
signature and signatures of panchas and Investigating
Officer. So also, Exh.31 panchanama shows that axe having
blood stains was seized at the instance of accused No.1
as deposed by PWs-6 and 8 and it also bears signatures of
accused, both panchas and Investigating Officer.
Similarly, both PWs-6 and 8 have deposed that on
31.07.2012 accused No.2 made statement [Exh.32] that she
would produce iron rod and then at her instance iron rod
was seized as per panchanama [Exh.33] which was hidden in
custard apple shrubs behind house of the deceased. Their
evidence is also not shattered in the course of cross-
examination. Exh.32 memorandum statement shows that
accused No.2 made statement that she would produce iron
rod (Thombya) which was hidden and it bears her thumb
impression as well as signatures of both panchas and
Investigating Officer. Similarly, Exh.33 panchanama shows
that at the instance of accused No.2 iron rod (Thombya)
having blood stains was seized under said panchanama and
it also bears thumb impression of said accused and
signatures of panchas and Investigating Officer. Thus, on
the basis of aforesaid evidence an inference can be drawn
that prosecution has proved seizure of axe Article No.8
having blood stains and iron rod Article No.9 having
blood stains respectively at the instance of accused No.1
and 2 as per panchanama Exh.31 and 33.
23.Next circumstantial evidence is seizure of
clothes of accused. Panch Vinayak Gore [PW-5] and
Investigating Officer PI Sudke [PW-8] have deposed
regarding the seizure of clothes of accused No.1 as per
panchanama [Exh.24] and seizure of Sari of accused No.2
as per panchanama [Exh.25] on 29.07.2012 after the
accused were arrested. PW-5 has specifically stated that
shirt and pant of accused No.1 were seized and they were
stained with blood. So also, he stated that Sari of
accused No.2 stained with blood was seized. He stated
that Article No.6/1 shirt, Article No.6/2 pant and Sari
Article No.7 shown to him, are the same. The evidence of
both PWs.5 and 8 regarding seizure of clothes of accused
as per above said panchanamas has not been shattered in
the course of their cross-examination. Thus, on the basis
of above evidence an inference can be drawn that the
prosecution has proved that pant and shirt of accused
No.1 having blood stains and Sari of accused No.2 having
blood stains were respectively seized as per panchanama
Exh.24 and 25 by the Investigating Officer. Similarly,
it is the case of the prosecution that Dr. More [PW-1]
had taken sample of blood of the accused for analysis and
( 35 ) criapl365.13
as referred earlier Dr. More has stated regarding taking
blood samples of the accused on 30.07.2012.
24.Now coming to the reports of the Chemical
Analyzer, Exh.41 report of the Chemical Analyzer shows
that blood group of the deceased was 'B', blood group of
accused No.1 is 'O' and blood group of accused No.2 is
'B'. Exh.40 report of the Chemical Analyzer shows that
human blood of group 'B' was found on axe. So also, it
shows that human blood of group 'B' was found on seized
shirt, pant of accused No.1 and Sari of accused No.2 i.e.
Exh.6,7 and 8. As said above the blood group of deceased
was 'B'. Therefore, finding of blood of Group 'B' on axe
shows that axe was used in assaulting the deceased and
finding of blood of 'B' group on clothes of accused also
shows presence of accused at the spot of incident and
their involvement in the incident. It is true that blood
group of accused No.2 is 'B'. But, it is not the case of
the accused that accused No.2 sustained any injury and
therefore blood stains of blood of 'B' group were found
on her Sari. Moreover, Exh.41 report of the Chemical
Analyzer shows that human blood was found on Exh.2 iron
rod. Of course blood group of said blood is not given in
the C.A. report. However, finding of human blood on iron
rod as per C.A. report [Exh.40] also indicates that said
( 36 ) criapl365.13
iron rod was used in assaulting the deceased. For the
above reasons, circumstantial evidence referred to above
relied upon by the prosecution connects the accused with
the act of assaulting the deceased with axe and iron rod
and causing him external as well as internal injuries as
deposed by Dr. More [PW-1] out of which head injury has
ultimately resulted into death of the deceased.
25.For all the reasons discussed above on the basis
of evidence of Dr. More [PW-1], the evidence of Urmila
[PW-4] and circumstantial evidence referred to above, an
inference can be drawn that on 28.02.2012 in his
(deceased's) house accused No.1 assaulted the deceased
with the axe on his head and accused No.2 assaulted the
deceased with iron rod on his head and caused him
external as well as internal injuries as deposed by Dr.
More [PW-1] and as such they are responsible for his
death.
26.Now, it is to be seen whether the accused had
intention to cause death of the deceased. An intention is
to be gathered from the circumstances proved on record.
It is proved that the deceased suffered in all three
external injuries and out of said three injuries one was
CLW over right part of occipital area of size 3x2x1 cm.
( 37 ) criapl365.13
and second was CLW over occipital area, 4 cm below and
lateral to injury No.1 and it was of seize 3x1x1 cm and
both the injuries were grievous. So also, it is proved
that these two injuries resulted the hematoma of
approximate by 15x4 cm over occipital area of skull as
per internal injury No.1. Moreover, fracture of occipital
area bone was noticed as per internal injury No.2 by Dr.
More. From the nature of above injuries it can be said
that said injuries were caused by applying the sufficient
force while assaulting the deceased with the axe and the
iron rod. All the three external injuries were noticed on
the head. Considering the fact that the accused had
chosen head of the deceased which is vital part of body
while assaulting him and the grievous nature of all the
three external injuries it can be said that the accused
had intention to kill the deceased. Moreover, it has
come in the evidence of Urmila [PW-4] that after the
deceased came to house under the influence of liquor he
started abusing to the accused and thereupon accused No.2
said to accused No.1 that the deceased is always inviting
quarrels on consuming the liquor and that he needs to be
finished and thereupon he was assaulted by both the
accused as said earlier. This evidence has gone
unchallenged in the course of cross-examination of Urmila
[PW-4]. Therefore this evidence also leads to an
( 38 ) criapl365.13
inference that the accused had assaulted the deceased
with an intention to kill him. Moreover, the conduct of
the accused subsequent to the incident of not taking the
deceased in the hospital shows that they had intention as
well as knowledge that by their aforesaid act of
assaulting the deceased there would be death of the
deceased. The trial Court has considered this aspect in
detail in paragraph No. 51 of the judgment.
27. For all the reasons discussed above we hold that the act of both the accused in assaulting the deceased and causing external as well as internal injuries and causing death of the deceased as a result of head injury falls within the ambit of culpable homicide amounting to murder punishable under Section 302 read with 34 of the IPC and as the facts of the present case are different from the facts in the decisions in Shihivappa Buddappa Kolkar @ Buddappagol (supra), Farukh Shaikh Mohammed (supra) and Ramajan Khajabhai Shaikh cited (supra) relied upon by the learned Advocate for accused, ratio in said decisions, cannot be made applicable to this case to state that the aforesaid act of the accused is amounting to culpable homicide not amounting to murder punishable under Section 304 Part-II of the IPC, so as to hold them guilty for the said offence and not under Section 302 of
( 39 ) criapl365.13
the IPC as submitted by the learned Advocate appearing
for the appellants/accused.
28.For the forgoing reasons we hold that
prosecution has proved the offence punishable under
Section 302 read with 34 of the IPC against the accused
beyond reasonable doubt. The trial Court has rightly held
so and rightly convicted and sentenced the accused for
the said offence by the impugned judgment and order. As
such there is no justifiable ground to interfere with the
impugned judgment and order, therefore the appeal being
devoid of merits, the same is liable to be dismissed.
Accordingly we dismiss the same.
29.Mr.P.P.More, Advocate was appointed to represent
the appellants. We appreciate his sincere efforts in
conducting the matter and assisting this Court to arrive
at a proper conclusion. We quantify his fees at
Rs.7,500/- [Rupees Seven Thousand Five Hundred].
VishalK/ criapl365.13
2 issues framed by the court
Could the sole child eyewitness's testimony be accepted despite alleged tutoring and inconsistency with medical evidence?
Did the fatal assault constitute murder with common intention or culpable homicide not amounting to murder?
Colour shows how this judgement treated each authority
Shivappa Buddappa Kolkar @ Buddappagol Vs. State of KarnatakaDistinguished¶145
2004 AIR (SC)5047. · Who else cites this
Farukh Shaikh Mohammed Vs State of MaharashtraDistinguished¶145
2006(1)Bom.C.R.(Cri.)844 · Who else cites this
Ramajan Khajabhai Shaikh Vs State of MaharashtraDistinguished¶145
2006(2)Bom.C.R.(Cri.)976 · Who else cites this
Mahadeo Kundalik Vaidya & others Vs State of MaharashtraReferred¶54
2002(Supp.1)Bom.C.R. (Cri.)894 · Who else cites this
Barku Mahadu Ghute Vs State of MaharashtraReferred¶71
2007(1)Bom.C.R.(Cri.)728 · Who else cites this
Hallu Vs State of Madhya PradeshReferred¶71
1974 DGLS(SC)108
Sudam Kisan Dhurjad Vs State of MaharashtraReferred¶77
1995 Cri.L.J. 4029 · Who else cites this
2 provisions across 1 enactments
Krushna S/o. Jagannath Sirsath
Parvatibai W/o. Jagannath Sirsath
The State of Maharashtra
T.V.NALAWADE
S.M. GAVHANE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court