Amogshidh Annappa Shendge and another vs State of Maharashtra and another

Vishnu Sahai, J.—Through this Criminal Appeal the appellants challenge the Judgment and Order dated 4-5-1995 passed by the IVth Additional Sessions Judge, Solapur, in Sessions Case No. 239 of 1994, convicting and sentencing them to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each, in default to undergo one years R.I., for the offence u/s 302 read with 34, Indian Penal Code.

It is pertinent to mention that along with the appellants were tried two others, namely Mohan Nimbalkar and Pandu @ Pandurang Yadgiri Utkamwar but, they have been acquitted vide the impugned Judgment. The State of Maharashtra has not challenged their acquittals by preferring an appeal u/s 378(1), Criminal Procedure Code.

In short, the prosecution case runs as under :-

Between the deceased Rahul on the one hand and the appellant-Amogshidh Shendge and the acquitted accused-Mohan on the other hand, there was an enmity. On 20-4-1991 Rahul''s cousin Bhimrao was murdered and for the said murder, companions of Amogshidh and Mohan, namely Prabhakar Talikote, Sidhu Tambe and Chandrakant Salunkhe were prosecuted and sentenced to life imprisonment by the trial Court. They had preferred an appeal in the High Court and Rahul made efforts to ensure that they were not granted bail.

On 25-9-1994 at about 11.30 a.m. the informant Bhaskar Waghmare PW 3 along with Rahul and other members of his family had gone to Sharan Math in Indira Nagar, in Solapur town for getting photographed. The photographs were required in connection with Identity cards to be used in the elections. Rahul had gone to the said place on a M-80 Motor-cycle. After getting photographed, Rahul on a motor-cycle, the informant and other family members on foot, proceeded for their house. At about 12.30 p.m. when Rahul had reached on the public road, in front of the house of Vishwanath in Bharat Ratna Indira Nagar, the appellants and the acquitted accused Mohan accosted him. Thereafter, the appellant Amogshidh inflicted blows with sattur on the forehead of Rahul. The appellant-Mallu Birajdar and the acquitted accused Mohan hurled stones on his head. At the said time, the acquitted accused Pandurang Utkamwar was instigating them to assault Rahul. Hearing the cries, the informant Bhaskar Waghmare PW 3, Shravan PW 8 and Deepak PW 9 reached the place of the incident. They are said to have seen the incident.

The evidence of Bhaskar Waghmare PW 3 shows that during the course of the incident, he became unconscious.

The evidence shows that after assaulting Rahul, the appellant-Amogshidh went to police station Sadar Bazar. At 12.55 p.m. he reached the said police station and gave the information that Rahul was lying in an injured condition in Bharat Ratna Indira Nagar. On the said information, H. C. Digambar Jadhav PW 15 made an entry in the station diary at 12.57 p.m. On telephone he communicated the information to PSI Patil at Taluka Police station who on wireless informed that Rahul had been sent to the General Hospital, Solapur.

In the meantime, the informant regained consciousness and found that Rahul was not there and policemen were there. He came to know that Rahul had been shifted to the General Hospital, Solapur. He reached there immediately.

2A. The evidence of PSI Patil PW 18 shows that PW 15 Digambar Jadhav informed him about the information given by the appellant-Amogshidh, and consequently, he reached the place of the incident; found Rahul lying there; and in a rickshaw took him to the General Hospital, Solapur. His evidence shows that at the said hospital, he recorded the FIR of Bhaskar Waghmare PW 3.

The injuries of Rahul were medically examined at about 1 p.m. on 25-9-1994 at the General Hospital, Solapur by Dr. Pandurang Burute PW 11 who found on his person the following injuries :-

"1. Contused lacerated wound (CLW) left eye brow 4 x 1 x 114 cms.

C.L.W. below left eye 1 x 1/2 x 1/2 cms.

C.L.W. forehead 2 x 1/2 x 1/2 cms.

C.L.W. right side above the eye brow 10x2x1 cms.

C.L.W. left parietal region 10x4x2 cms. left parietal region.

C.L.W. occipital region left side 6x2x1 cms.

C.L.W. over mandible clinically fracture mandible was detected."

In his statement in the trial Court, Dr. Burute stated that injuries Nos. 1 to 3 and 7 could be caused by a stone and injuries Nos. 4, 5 and 6 by the blunt side of a sattur.

The evidence is that Rahul succumbed to his injuries in General Hospital, Solapur the same day at 4.40 p.m.

The investigation was conducted in the usual manner by PSI Patil PW 18. At 1.40 p.m. he arrested the appellant-Amogshidh. In the presence of the public panch, Dattatraya Huljanthiwale PW 7 and Jehangir Shaikh he seized the blood - stained shirt and pyjama which he was putting on under a panchanama. Same day at 5 p.m. he arrested the acquitted accused Mohan. On 30-9-1994, the appellant-Mallu was arrested. On 1-10-1994, he expressed his willingness to get the weapon of assault (sattur)'' recovered. The said willingness was recorded under a panchanama and thereafter on the pointing out of the appellant-Mallu, from inside the bushes, situated near the water reservoir No. 1 in MIDC area, a blood-stained sattur was recovered under a panchanama.

During the course of the investigation, PSI Patil recorded the statements of witnesses u/s 161, Criminal Procedure Code.

On 22-11-1994, PSI Patil PW 18 filed the charge-sheet against the appellants.

Going backwards, the autopsy on the corpse of the deceased Rahul was conducted on 25-9-1994 by Dr. Ashok Kanki PW 16 who found on it the following ante mortem injuries :-

"1. Contused lacerated wound (CLW) on left parietal occipital region 2" x 1/2" scalp deep with an abrasion surrounding it 2 1/2 x 2" brown.

Sutured wound (CLW) left parietal region 2" in length transverse with another sutured wound obliquely crossing it 3" in length with abrasion surrounding it 3" x 1/2" brown.

Sutured wound (CLW) on right side of forehead 3" length oblique with abrasion surrounding it 4" x 1" brown.

Sutured wound (CLW) right eye brow 2" length transverse.

Sutured wound (CLW) at left eye brow 3" length interrupted.

C.L.W. right parietal region 1" x 1/2" scalp deep.

Abrasion on scalp left temporal region 1" x 1" and at left mastoid region 1" x 1" brown.

Sutured wound (CLW) on face left maxillary region 1/2" length with abrasion 1" x 1" brown with fracture maxilla.

Lower lip lacerated 1/2" x 1/2" with sutured wound (CLW) on chin 1 1/2" in length with contusion 1 1/2" x 2" brown with fracture mandible.

Contusion inner aspect of upper lip 1/2" x 1/2" brown.

Abrasion on lateral aspect left elbow 3" x 1" brown with swelling on lateral aspect left arm 1" x and below right knee 1" x 3/4 brown."

On internal examination, Dr. Kanki found haematoma under the skull on the frontal and both parietal regions and depressed fracture of left parietal region and fracture of right anterior cranial fossa.

In his statement in the trial Court, Dr. Kanki stated that the deceased died on account of the head injuries coupled with fracture of skull accompanied with subdural haematoma. He also stated that the said injuries were sufficient in the ordinary course of nature to cause death and Injury Nos. 2, 4 and 5 could be caused by the blunt edge of the sattur.

The case was committed to the Court of Session in the usual manner, where the appellants and the acquitted accused were charged for the offences punishable under sections 302 read with 34 Indian Penal Code and 135 of the Bombay Police Act. They pleaded not guilty to the said charges and claimed to be tried.

During the trial, in all the prosecution, examined 8 witnesses. 3 of them namely Bhaskar Waghmare PW 3, Shravan Randhire PW 8 and Deepak Rajput PW 9 were examined as eye-witnesses. The learned trial Judge did not place reliance on the evidence of Deepak Rajput PW 9. He also did not accept the evidence of Bhaskar Waghmare PW 3 and Shravan Randhire PW 8 vis a vis the accused Mohan Nimbalkar and Pandurang Utkamwar but, he accepted their evidence vis-a-vis the appellants for the offence u/s 302 read with 34, Indian Penal Code and sentenced them in the manner stated in para 1, above.

Hence, this appeal.

We have heard Mr. P. P. Hudlikar and Mr. Vineet Naik for the appellants and Mr. D. N. Salvi, Additional Public Prosecutor for the respondent No. 1.

Although this appeal is on the final hearing board since long, Mr. S. G. Kudle learned counsel for the respondent No. 2 is not present in Court. Since the appellants are in jail since nearly the last five years, we are not inclined to adjourn it. We have perused the entire evidence on record. In our view, this appeal deserves to be partly allowed.

The conviction of the appellants is founded on the testimony of the two eye-witnesses namely Bhaskar Waghmare PW 3 and Shravan Randhire PW 8. The evidence of Bhaskar Waghmare PW 3 shows that on the date of the incident, he, deceased Rahul and other family members had gone to Sharan Math to get photographed in connection with the identity cards required for the purposes of election. While the deceased had gone on a M-80 Motor-cycle others had gone walking. At about 12.30 noon, while he was returning on foot, after getting photographed, he heard the noise of people and consequently went running to the place of the incident (the public road in front of the house of Vishwanath situated in Bharat Ratna Indira Nagar, Solapur). He saw the appellants and the acquitted accused Mohan accosting Rahul. He also saw that the appellant-Amogshidh gave blows with a weapon like Sattur on the forehead of Rahul, the appellant-Mallu and the acquitted accused Mohan hurled stones on Rahul''s head and the acquitted accused Pandu was instigating them to assault Rahul. He stated that on seeing this, he became unconscious and when he regained consciousness, he found that Rahul was not there. The police was there; and he was informed that Rahul had been shifted to the General Hospital, Solapur.

The evidence of Shravan Randhire PW 8 shows that on 25-1-1994, he along with his family members had gone to Sharan Math to get photographed for the identity cards required in connection with the elections. At about 12 a.m. (it appears to be a clerical error and it should be 12 noon), while he was at Sharan Math, he heard some people running helter - skelter and when he went running near the place of the incident, he saw the appellant-Amogshidh inflicting two blows with a sattur on the forehead of Rahul; the appellant-Mallu and the acquitted accused Mohan hurling stones on the head of Rahul and the acquitted accused-Pandurang instigating them. He became frightened; went and informed the parents and sister of Rahul; and thereafter went to the General Hospital, Solapur, where he met Bhaskar Waghmare at about 4.15-4.30 p.m. and narrated the incident to him.

We have already mentioned that the third eye-witness Deepak Rajput has not been relied upon by the learned trial Judge for the reasons given by him in para 37 of the impugned Judgment with which we are in agreement.

We have gone through the evidence of Bhaskar Waghmare PW 3 and Shravan Randhire PW 8 and in our view, it would not be safe to accept it vis-a-vis the appellant-Mallu Birajdar.

Shravan Randhire PW 8 during his examination-in-chief has stated that on the date of the incident, he met the informant Bhaskar Waghmare in the General Hospital, Solapur at about 4.15-4.30 p.m. In his cross-examination, in para 7, he has stated that he narrated the incident to Bhaskar inside the ward. Sometime after Bhaskar came outside the ward and thereafter the police came and recorded the report of Bhaskar Waghmare PW 3.

In view of the aforesaid admission of Shravan, we find it significant that the name of the appellant-Mallu has not been mentioned in the FIR.

It is pertinent to mention that the informant Bhaskar Waghmare admitted that he learnt of Mallu''s name from Shravan Randhire. But, in view of the said statement of Shravan Randhire, we are not prepared to believe the informant when he says that he learnt it after he lodged the FIR.

In such a situation, absence of Mallu''s name in the FIR is ominous for the prosecution. It makes the prosecution case against him doubtful.

Apart from this, in our view there is no distinction between the case of this appellant and that of the accused-Mohan who has been acquitted by the trial Court. Both of them are said to have hurled stones on the deceased. It is true that there is an additional circumstance against this appellant namely that of recovery of the blood-stained sattur on his pointing out but, the said circumstance has not been relied upon by the learned trial Judge for the reasons mentioned in para 44 of the impugned Judgment. The reasons therein are that the place of the recovery was accessible to others and sattur was not sealed subsequent to the recovery.

In our view, for the reasons stated above, the appellant-Mallu deserves to be acquitted.

We however, feel that it would be safe to accept the evidence of Bhaskar Waghmare and Shravan Randhire vis-a-vis the involvement of the appellant-Amogshidh in the incident. Both these witnesses have categorically stated that this appellant assaulted the deceased Rahul with a sattur. Both Dr. Burute PW 11 who examined the deceased Rahul in his lifetime and Dr. Kanki PW 16 who performed the autopsy on the corpse of Rahul, have candidly stated that some of the injuries on Rahul''s person were attributable to the blunt-side of a sattur (injury Nos. 4, 5 and 6 according to Dr. Burute and injury Nos. 2, 4 and 5 to Dr. Kanki).

Assurance to the participation of this appellant is also lent by the circumstance that in the FIR of the incident, which was lodged the same day, within 4 hours of the incident, he is named and has been assigned the role of assaulting the deceased Rahul with a sattur.

A final nail in the coffin of this appellant is the circumstance that when he went to inform the police of police station Sadar Bazar, he was putting on blood-stained clothes. The said clothes were seized under a panchanama and sent to the Chemical Analyst who found on them blood of ''O'' group. It is true that the blood group of this appellant is also ''O'' but, all the same he has failed to offer any explanation as to how his clothes were stained with blood of the said group. We are not prepared to accept his denial in terms that the said clothes were not recovered from his person because, apart from the evidence of the Investigating Officer, we have that of public panch, Dattatrya Huljanthiwale PW 7. Both these witnesses were subjected to cross-examination but, nothing could be extracted therefrom which would cast a shadow of doubt on the prosecution case that this appellant was putting on blood-stained clothes which were seized in their presence.

The question which remains to be answered is that Mohan and Pandurang having been acquitted by the trial Court and the appellant Mallu having been acquitted by us, would it be proper to sustain the conviction of the appellant-Amoghshidh for the offence u/s 302 read with 34, Indian Penal Code. To that our answer is in the negative. Since according to the prosecution, in the instant case, only four persons participated and three of them have been acquitted, the conviction of the appellant for the offence of murder, with the aid of section 34 Indian Penal Code, cannot per se stand.

Before section 34, Indian Penal Code can have application, there should be several persons, that is persons more than one, and it is only when there are more than one persons, and they commit a criminal act, in furtherance of their common-intention, would the said section have an application.

Since there were only four persons in all and three have been acquitted, two by the trial Court and one by us, and the appellant Amogshidh is the sole accused who remains he cannot be convicted for the murder of Rahul with the aid of section 34, Indian Penal Code because, no one remains with whom he could have shared the common intention for the aforesaid criminal act.

The question is whether we can convert the conviction of appellant Amogshidh from section 302 read with 34, Indian Penal Code to one u/s 302, Indian Penal Code simpliciter. To that also, our answer is in the negative. We could have done it, had there been concrete evidence to the effect that the two sattur blows inflicted by him on Rahul''s forehead (as alleged by Shravan Randhire PW 8) were sufficient in the ordinary course of nature to cause his death. But, this evidence is lacking.

The evidence of the Autopsy Surgeon is that the deceased died on account of head injuries coupled with fracture of skull, other injuries and subdural haemattoma. The fractures are beneath the skull. The evidence is that stones were thrown on the head of the deceased by the accused-Mohan and the appellant-Mallu (the former has been acquitted by the trial Court and the latter by us)

In such a situation, we feel that the act committed by this appellant would fall within the ambit of clause thirdly of section 299, Indian Penal Code, the breach of which, is punishable u/s 304(2), Indian Penal Code. In our view, when appellant-Amogshidh gave two blows from the blunt side of sattur on the forehead of Rahul, he had the knowledge of his death within the terms of clause thirdly of section 299, Indian Penal Code. We say that he gave the said blows from the blunt side of the sattur because, had he given them from the sharp side, then incised wounds and not contused lacerated wounds would have been found on the person of Rahul by the two medical witnesses.

The question which remains is the quantum of sentence to be awarded to the appellant-Amogshidh for the offence u/s 304(2), Indian Penal Code. After thoughtfully considering this question, we are of the view that the ends of justice would be satisfied if he is directed to undergo a substantive sentence of five years R.I. and to pay a fine of Rs. 5,000/- in default to suffer one years R.I. thereunder.

In the result, this appeal is partly allowed.

We acquit the appellant-Mallu @ Mallikarjun Shankar Birajdar for the offence u/s 302 read with 34, Indian Penal Code and set aside his conviction and sentence thereunder. He is in jail and shall be released forthwith unless wanted in some other case.

In case he has paid the fine, it shall stand refunded to him.

We acquit the appellant-Amogshidh Annappa Shendge for the offence u/s 302 read with 34, Indian Penal Code and set aside his conviction and sentence thereunder. We direct that in case he has paid the fine of Rs. 5,000/-, it shall stand refunded to him. We instead find the said appellant guilty for the offence u/s 304(2), Indian Penal Code and sentence him to undergo five years R.I. and to pay a fine of Rs. 5,000/- and to undergo one years R.I. in default. In case he pays the fine of Rs. 5,000/- the whole of it would be paid as compensation to the widow of Rahul Waghmare (deceased).

The trial Court shall accept the fine on production of a certified copy of our Judgment, which in case an application is made by the learned counsel for the appellants, shall be issued within one week from today.