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Judgment
N.V. Dabholkar and R.M. Borde, JJ.—Heard learned Counsel for respective parties.
Present appellant is convicted by III Ad-hoc Additional Sessions Judge, Dhule for offence punishable under Sections 302, 307 of Indian Penal Code. On each count he is sentenced to suffer life imprisonment and fine of Rs. 1000/- I.D. R.I. for one year. This was at the conclusion of Sessions Case No. 84/04 vide judgment and order dated 22/3/2006. Feeling aggrieved by the said finding of guilty, conviction and sentence, accused/appellant has approached this Court by present appeal u/s 374(2) of the Code of Criminal Procedure, 1973.
According to prosecution story, the incident in question took place on 24/6/2004 at about 1 a.m. that is on the night between 23rd and 24th June 2004 just past-mid-night. Deceased Mersing and injured Shivram were sleeping in the courtyard in front of house of Apsing. Apsing is father of deceased Mersing. Shivram was sleeping on a cot. Mersing with his wife was sleeping on the ground. Accused before the Court is said to have killed Mersing and attempted to kill Shivram by inflicting injuries upon them by using an axe at the material time.
Apart from injured Shivram (P.W. 9), wife of deceased Mersing namely Shantabai (P.W.10) and one Saireebai (P.W. 11) are examined as eye witnesses. P.W.1 Ramchandra is complainant who reported the matter to the police station by a written complaint. In fact according to prosecution, the incident was narrated by Shantabai to Jirbhan (P.W. 8) who in turn informed the same to complainant Ramchandra. The two witnesses together thereafter, approached police patil Lotan (P.W. 7) and then all three (that is Jirbhan, Ramchandra and Lotan) came to the spot of incident when mother of Shivram and widow of deceased were present there and they confirmed the story to the police patil.
Rema (P.W. 3) and Gotiram (P.W. 4) are panch witnesses. The clothes of the deceased were seized in their presence and accused is said to have given out the weapon i.e. axe in presence of these two witnesses. Eventually both these witnesses turned hostile and they have not supported the prosecution story of discovery at the instance of accused. In fact Gotiram (P.W. 4) partly supported the story by saying that accused had given out the axe in his presence although he did not agree proceeding of recording memorandum and panchanama having taken place as claimed by the investigating officer. Unforunately this discovery evidence has no value because of report of the Chemical Analyser. In the report of C.A. neither the weapon nor the clothes of the accused are found to have any blood stains. In this context, it must be taken into consideration that accused was not available on the same day and his arrest was effected after three days that is on 27th June 2004.
Suresh (P.W. 2) is Circle Officer who has drawn the map of the location. Dr. Surekha (P.W. 6) had performed post mortem on the dead body of Mersing and another medical witness Dr. Nitin (P.W. 13) had clinically examined injured Shivram and issued a certificate regarding injuries on the person of Shivram. The only remaining witness is investigating officer Dattatraya Barale who was then P.S.I. attached to Shirpur police station and the incident is said to have taken place at village Khambale, Tq.Shirpur within his territorial jurisdiction.
The defence of the accused is that of total denial. This is evident from the cross examination of witnesses wherein it is suggested that he is falsely implicated. This is also evident from the statement of the accused as recorded u/s 313 of Cr.P.C. 1973. Accused has chosen to remain tight lipped. He has answered question Nos. 2 to 5 by saying that he does not wish to say anything and all other questions by saying "This is false". When he was allowed liberty to say anything more, he has simply said that this false case is filed against him.
Learned Counsel for the appellant has taken us through entire prosecution evidence and even judgment of the learned Judge. We must not hesitate to record our displeasure towards the judgment recorded by the learned Judge. The reasons recorded by the Judge are from paragraph Nos. 4 to 25 and unfortunately, we must say that in paragraphs 4 to 24 the learned Judge has only described as to what are the depositions of all the witnesses either during the course of examination in chief or during the course of cross examination. Thus the judgment which runs into (22) pages of the paper book (page Nos. 112 to 134) contains reasons recorded by the learned Judge hardly running into 1 and 1/2 or 2 pages. Be that as it may.
Both the advocates agreed that the report of C.A. does not render any support to the prosecution and does not forward the cause of the prosecution even by an inch. Evidence of witnesses Jirbhan (P.W. 8), Ramchandra (P.W. 1) and Lotan (P.W. 7) is certainly not the direct evidence of the incident. They have learnt about the incident from the wife of the deceased or mother of the victim and Jirbhan has communicated his hearsay knowledge to Ramchandra (P.W. 1). Then Jirbhan and Ramchandra together had communicated the details to police patil Lotan and on arrival at the scene together, the three persons have noticed Mersing lying in dead condition in a pool of blood in the courtyard of his house and Shivram lying in an unconscious condition with head injury in the first room adjacent to courtyard.
The testimonies of injured Shivram (P.W. 9), wife of deceased Mersing Shantabai (P.W. 10) and Saireebai (P.W. 11) are the pieces of evidence which are going to decide fate of the prosecution and the accused.
Adv. Smt. Sawale has takenus through depositions of all three witnesses and also reasons recorded by learned Judge. According to her, there are enough contradictions and variances in the depositions of these witnesses in order to doubt whether they have really witnessed the incident. She therefore, urged that accused is atleast entitled to benefit of doubt. According to learned A.P.P., there is no reason to disbelieve Shantabai, even if the Court finds that Shivram and Saireebai may not be the persons who can be treated as eye witnesses. According to learned A.P.P., version of Shantabai is supported by witnesses who spoke about their hearsay knowledge of the incident. The deposition of Jirbhan, Ramchandra and Lotan, according to learned A.P.P. may not prove "the fact in issue" that is accused having killed Mersing and having inflicted injuries upon Shivram, but their depositions are certainly admissible as, subsequent conduct as influenced by fact in issue. Jirbhan talks about the reaction of Shantabai when he says that he learnt about the incident from Shantabai wife of Mersing, Jirbhan, Ramchandra and Lotan have acted upon the information and ascertained about the death of Mersing and of Shivram also being victim of the assault.
Being time of past mid night, i.e. 1 a.m. it was suggested to Shivram that it was dark night and therefore, nothing could have been seen. Shivram has denied this fact and has said that it was moonlit night. On reference to Hindu Almanac, 23/6/2004 was Ashad Vadya Panchami, that is it was 5th day from the full moon day during which the phases of the moon reduce fraction by fraction. The version of Shivram that it was moonlit night is therefore acceptable.
According to Smt. Sawale, the deposition of Shivram is contradictory. She pointed out that in his examination in chief, he has narrated that accused beat Mersing with axe, then he woke up and he started running away. At that time accused gave blow of axe on his head and he fell unconscious. As against this, in his cross examination he has admitted that when he received blow on his head, he was on the cot, although he added that he was not asleep. He has also admitted that when he saw, Mersing was lying on the ground and there was nobody around Mersing. He has also admitted that as soon as he received blow on his head he fell unconscious.
In this context, Adv. Smt. Sawale also drew our attention to the evidence of Dr. Nitin (P.W. 13) who had examined Shivram who has admitted that if a person is sleeping on the cot and blow with a weapon like axe is dealt on the right side of head (parietal region), then injury No. 2 is possible also to the left side of the head i.e. (left parietal region). From the opinion of the medical officer, it is possible that Shivram might have been dealt the blow on the right parietal region while he was sleeping on the left shoulder and the left parietal region therefore suffered comparatively less severe injury as a result of impact between that portion of the body with the cot. Even if version of Shivram is to be accepted that the blow was dealt while he was sleeping on the cot, we also cannot rule out the possibility that Shivram might have received blow while he was fast asleep. Even if the version in the examination in chief is accepted, Shivram had started running away. Ultimately he was found lying unconscious in the first room of the house, when police patil Lotan arrived on the scene. The possibility cannot be ruled out that he was dealt with a blow while he was attempting an escape. However, in that case, the version of Shivram that he had seen the assailant to be accused will have to be accepted. In any case, yes, we will have to agree; that there is an element of uncertainty in the deposition of injured Shivram.
Saireebai (P.W. 11) has claimed to be an eye witness. But she can be said to be a witness who reached the spot immediately after the incident. In her examination in chief, she deposed that she heard shouts of Shivram, hence she reached the spot. She saw Shivram in unconscious condition and accused was giving axe blow to Shivram. She saw accused running away. Even without referring to cross examination, we can demonstrate that Saireebai has not been able to avoid the temptation of exaggeration and thereby claiming to be an eye witness. That she heard shout of Shivram is not supported by Shivram. Shivram never claimed to have shouted. But if Shivram has shouted and Saireebai has reached the spot upon hearing shout of Shivram, in that case it will have to be inferred that Shivram shouted upon seeing accused assaulting Mersing. This is because version of Shivram himself is to the effect that as soon as he received a blow on his head from the accused he became unconscious.
In her cross examination Saireebai admitted that in her police statement she has narrated that Shantabai came to her house and told her that accused Lalsing had killed her husband and injured Shivram by means of an axe. If this statement as recorded soon after the incident is taken into consideration, Saireebai cannot be termed as an eye witness, but again evidence of Saireebai would be admissible as evidence of "subsequent conduct" of Shantabai as influenced by fact in issue. We are inclined to accept the evidence of Saireebai to the extent admitted by her during her cross examination and this portion finds corroboration in the deposition of Shantabai. Shantabai has narrated that after the incident she went to residence of Saireebai and told the incident to Saireebai. Thereafter, the two ladies went to village and narrated the incident to villagers and then they returned home. This completes the chain so far as spreading of all the details of the incident amongst the villagers, because it is the claim of Jirbhan (P.W. 8) that he learnt about the incident from the wife of Mersing, that is Shantabai.
Shantabai in her deposition has narrated that she and her husband so also Shivram were sleeping in the courtyard. On that night when accused reached there, accused demanded her food, she provided him Bread (Bhakari), since hunger of the accused was not satisfied with the bread, Shantabai went to the house of brother of her husband. (it has come in the evidence of Apsing-P.W.5 father of the victim that son Mersing, accused Lalsing, his other son Bhaylya all were residing in different Taparies which group is described as house of Apsing). By the time she was at the entrance of the house of brother of her husband she noticed that accused gave axe blow on the neck of Mersing, she rushed back to the spot, accused present there gave blow of axe on the head of Shivram and then ran away. She narrated that her husband Mersing died on the spot. Thereafter she went to place of Saireebai and informed the incident to Saireebai. According to her Sarpanch had reported the matter to police. Police and police patil thereafter removed injured Shivram and dead body of Mersing to Shirpur.
On going through cross examination of Shantabai we are unable to point anything for which she can be said to be a liar. She has confirmed that Shivram was sleeping on a cot. She has narrated that on that afternoon (afternoon of 23rd June) Bhaylya (brother of deceased Mersing) had ran away with the wife of accused Lalsing. They were also followed by wife of Bhaylya. There is no reason to disbelieve this narration by Shantabai because deceased Mersing, his brother Bhaylya who ran away with the wife of accused and accused Lalsing are residing in the same house, which is a bunch of Taparies although described as house of Apsing (father of deceased).
Adv. Smt. Sawale has led an emphasis on the aspect of motive. According to her, that brother of deceased ran away with the wife of accused would not be reason for accused to kill Mersing and to attempt to kill Shivram. This is a matter wherein prosecution has approached with direct evidence in the form of deposition of three witnesses. Aspect of motive assumes significance and a great importance, when it is a case based on circumstantial evidence. The prosecution need not fail merely because it is not in a position to establish motive, when prosecution is armed with direct evidence of accused having committed the crime. Last but not the least, that Bhaylya ran away with the wife of accused is the cause for accused getting enraged and having killed Mersing, is an inference drawn by Shantabai as to why accused must have been violent on that night.
Learned Counsel for the appellant has pointed out that Shantabai admitted in her cross examination that when accused demanded food, he was not having anything in his hand. In other words, when accused arrived on the scene, he was not armed with an axe. Although Adv. Smt. Sawale desired us to discredit the witness due to this admission, we are inclined to add more weightage to the witness as trustworthy witness. This is clear indication that there is no attempt to falsely implicate him. After all between arrival of the accused and the alleged incident Shantabai already had one trip to the kitchen, she had provided food to the accused. Finding that has proved insufficient to quench his hunger she had proceeded for second visit to kitchen of her husband�s brother, when the incident took place. It is not necessary that prosecution must explain as to whether accused might have hidden the axe till this time. That is why we feel that admission of Shantabai that when accused arrived on the scene and demanded bread from her she did not notice anything in his hand is an innocent admission adding credit to the reliability of the witness.
Shantabai has reacted immediately, she had gone to the place of Saireebai, thereafter to the villagers and every time she has narrated accused to be the author of the injuries on the person of deceased as well as Shivram. We feel that the quality of evidence that is rendered by Shantabai, supported by the evidence of her subsequent conduct as has come from the depositions of Jirbhan and Saireebai, we do not find any reason to disbelieve Shantabai.
The medical evidence is clear. So far as victim Mersing is concerned, may be with a single blow of a very heavy axe his head is practically chopped and nearly separated from the trunk. The injury which started from right backside of the neck has caused fracture of cervical vertebrae. Trachea and oesophagus are also cut with hyoid bone and cartilage. The intentions of accused are clear. If for Shivram location selected for inflicting injury by means of axe was head, it can not be said that any minor injury or injury not likely to result into death was intended.
Having found evidence of Shantabai partly supported by Saireebai and partly by witnesses Jirbhan, Lotan and Ramchandra, we are inclined to sustain the finding of guilty, conviction and sentence as recorded by trial Court.
The appeal is therefore, dismissed.
Adv. Smt. Sawale was appointed to prosecute the appeal on behalf of appellant-accused at the costs of the State. We quantify her professional charges at Rs. 4000/- (Rs. Four Thousand only).