Pandit Ramchandra Mulik and Others vs The State of Maharashtra

Vishnu Sahai, J.—Through this appeal the appellant challenges the judgment and order dated 31st January, 1997 passed by the Additional Sessions Judge, Gadhinglaj, in Sessions Case No. 36/1996, whereby they have been convicted and sentenced in the manner stated hereinafter : - All u/s 302 read with 34 of the I.P.C. to suffer imprisonment for life. In addition appellant Pandit Ramchandra Mulik u/s 324 of the I.P.C. to suffer 1 year R.I. and to pay a fine of Rs. 1000/-, in default to suffer 6 months R.I.

Shortly stated the prosecution case runs as under :-

The appellant Ramchandra Narayan Mulik is the father of the appellant Pandit Ramchandra Mulik. Appellant Babu Gundu Kamble is his associate. The appellants, the informant Mahadev Bapu Jadhav P.W. 3 and the deceased Tukaram who was the younger brother of the appellant Ramchandra Narayan Mulik at the time of the incident were residing at village Ardal. Ramchandra Narayan Mulik despite having been given in adoption in another family continued residing with his son Pandit Ramchandra Mulik in the house of the deceased Tukaram. Since about 5 to 6 years prior to the incident Ramchandra Narayan Mulik had got a house in Beghar Vasahat. Hence Tukaram started insisting that he should start living in the said house. However, Ramchandra Narayan Mulik paid no heed to this wish of deceased Tukaram. Hence deceased Tukaram filed a Civil Suit against Ramchandra Narayan Mulik and Babu Gundu Kamble in respect of the said house. Arguments in the said suit were heard and it was kept for judgment on 4.3.1996 by the Civil Judge, Junior Division, Ajara. In the said civil suit Mahadev Bapu Jadhav P.W. 3 had deposed on behalf of the deceased Tukaram. Hence Ramchandra Narayan Mulik, his son Pandit Ramchandra Mulik and his associate Babu Gundu Kamble became annoyed with him and Tukaram.

On 1.3.1996 at about 8 to 8.30 p.m. when Mahadev Bapu Jadhav P.W. 3 was standing near his shop in village Ardal, deceased Tukaram came and asked him to accompany him for a walk towards Bhairi temple. Thereafter Mahadev Bapu Jadhav P.W. 3 and the deceased Tukaram went to said temple and offered prayers. They then went towards Bahiricha Mal. Thereafter they started returning by the cart road towards the village. At that juncture appellant Ramchandra Narayan Mulik armed with an axe and appellants Pandit Ramchandra Mulik and Babu Gundu Kamble armed with sticks emerged. Pandit Ramchandra Mulik inflicted a stick blow on the head of Mahadev Bapu Jadhav P.W. 3 resulting in his running towards the side of a heap of cow dung cakes lying near the well. From there Mahadev Bapu Jadhav P.W. 3 saw that the appellants were chasing deceased Tukaram. He also saw that Appellant Ramchandra Narayan Mulik assaulted him with an axe and the remaining two with sticks. Apart from Mahadev Bapu Jadhav P.W. 3 the incident was also seen by Suman Joshi P.W. 5 whose house was in the vicinity of the place of the incident and Mahadev Gurav P.W. 10 who at the said time was at her house. These witnesses saw the incident in the moon light. After assaulting Mahadev Bapu Jadhav P.W. 3 and deceased Tukaram the appellants are said to have gone away.

The evidence of Mahadev Bapu Jadhav P.W. 3 shows that his shirt has become stained with blood and when after the incident he went to his wife, on enquiries from her, he told her about the incident. His wife then went to the house of deceased Tukaram and informed Tukaram''s wife. Thereafter the wife and sons of deceased Tukaram went towards Bahiricha Mal but could not find Tukaram. Then Mahadev Bapu Jadhav along with Tukaram''s wife and sons went to the Police Patil and informed him about the incident. Thereafter along with the Police Patil they again went towards Bahiricha Mal where they noticed the corpse of deceased Tukaram lying on the metal road.

The evidence of Mahadev Bapu Jadhav P.W. 3 further shows that the Police Patil asked him to lodge the F.I.R. Consequently he, the Police Patil and Tukaram''s wife came to the S.T. Stand and after waiting for 1 1/2 hours to catch a bus and falling to get one, went walking to Utter. At police out post Utter at about 2 to 2.30 a.m., as is evident from the evidence of P.H.C. Shantaram P.W. 12 of the said out post, Mahadev Bapu Jadhav disclosed the incident P.H.C. Shantaram, brought a private jeep and on the same took the informant and others to Ajara Police Station.

The evidence of A.P.I. Dilip Patil P.W. 13 of Ajara Police Station shows that on 2.3.96 at about 5.30 a.m. the informant Mahadev Bapu Jadhav P.W. 3 along with Police Patil and Head Constable came and the informant lodged his F.I.R. A perusal of the F.I.R. shows that on the basis of the same C.R. No. 10/96 u/s 302 read with 34 of the I.P.C. was registered at 6.35 a.m. on the said date. A.P.I. Dilip Patil after registering the crime referred the complainant Mahadev Bapu Jadhav P.W. 3 for medical examination.

The evidence of Dr. Ashok Fernandes P.W. 9 who on 2.3.96 was posted as Medical Officer, Rural Hospital, Ajara shows that Mahadev Bapu Jadhav was referred to him by the police of Ajara Police Station with a police yadi for medical examination. On examining him he found the following injuries :

C.L.W. of 8.5 cm. x 1.5. cm. x 1.5 cm. frontal area; ragged margin, bleeding was present, tenderness present; stitched in 5 stitches within 24 hours.

Left elbow swelling with abrasion, simple injury caused by hard and blunt object within 24 hours.

The injury report of Mahadev Bapu Jadhav P.W. 3 Exhibit 53 shows that he was medically examined at 7.30 a.m. In the opinion of Dr. Ashok Fernandes injury No. 1 was attributable to stick.

The evidence of A.P.I. Dilip Patil P.W. 13 shows that after sending Mahadev for medical examination he left for the place of the incident where he performed the inquest of the corpse of the deceased and the spot panchanama. A perusal of the spot panchnama and the evidence of the public panch of spot panchnama Dhondlba Sonar P.W. 2 shows that he recovered plain and blood stained earth from the place of the incident and found by the side of the corpse a cap, a chappel of the right leg and some other articles. Thereafter A.P.I. Dilip Patil attached the clothes of the informant Mahadev Bapu Jadhav. He then arrested the appellants vide panchnama Exhibit 51. In the presence of pubic panch Pandurang Kamble P.W. 8, he seized the blood stained clothes which were produced by them. Pandit Ramchandra Mulik had produced a full sleeve bush shirt, having blood stains; Ramchandra Narayan Mulik had produced a Nehru shirt, a lungi and turban having blood stains and Babu Gundu Kamble had produced a white coloured cotton dhoti having blood stains.

On 4.3.96 the appellants expressed their willingness to have the weapons of assault recovered. Consequently A.P.I. Dilip Patil sent for public panchas out of whom one has been examined viz. Digambar Sawant P.W. 1. In the presence of the said panch A.P.I. Dilip Patil recovered the blood stained axe at the instances of Ramchandra Mulik and sticks on the pointing out of the appellants Pandit Ramchandra Mulik and Babu Gundu Kamble. It is pertinent to mention that the axe at the instance Ramchandra Narayan Mulik was recovered at 5 a.m. and the sticks at the instance of Pandit Ramchandra Mulik and Babu Gundu Kamble at 12.15 p.m. and 4.15 p.m. respectively. The said recoveries were effected under three separate panchnamas and the evidence of A.P.I. Dilip Patil and Digambar Kamble shows that they were concealed and were not made from the open places. It is pertinent to mention that A.P.I. Dilip Patil sent these weapons as also the clothes of the deceased Tukaram and some other articles to the Chemical Analyst. It is also pertinent to mention that on the clothes of the deceased Tukaram the Chemical Analyst found blood of ''O'' group and the blood of said group on the handle axe. It also needs to be mentioned that on the blade of the axe and bamboo sticks the Chemical Analyst found human blood.

After completing the investigation A.P.I. Dilip Patil submitted the charge-sheet on 31.5.1996.

Going backwards the autopsy on the corpse of the deceased was conducted on 2.3.1996 between 1.15 p.m. and 2.30 p.m. by Dr. Vasantrav Kadolikar P.W. 14 who found on it the following ante mortem injuries.

Cut sharp wound over left side of occipital region about 2- 1/2 breadth deep upto bone level, clotted blood present - vertical;

Cut sharp wound to left side of occipital region 2- 1/2" length obliquely placed 1 /2" breadth deep upto bone level;

Cut sharp wound right side parietal occipital region 2" length 1/4" breadth deep upto bone level, vertical;

Cut sharp wound to parietal region right side vertical about 1- 1/2" length and 1/2" length bone deep;

Cut sharp wound left parietal region 1/2" length l/4" breadth deep upto muscle level, obliquely placed;

Contused wound over left side of arm region 2" x 1" outer aspect swelling present;

Superficial, abrasion, right upper limb at arm region 1" size; and

Superficial abrasion right side 1" size.

In the opinion of Dr. Kadolikar, injury Nos. 1 to 5 were possible by a sharp object and injury Nos. 6 to 8 by a hard object. When the axe and the sticks were shown to Dr. Kadolikar during his deposition he stated that injury Nos. 1 to 5 could be caused by the former and injury Nos. 6 to 8 by the latter.

The case was committed to the Court of Sessions in the usual manner where the appellants were charged for offences punishable u/s 302 read with 34 of the I.P.C. and section 324 r/w. 34 of the I.P.C. to which charges they pleaded not guilty and claimed to be tried.

During trial in all the prosecution examined 14 witnesses; Five out of them viz. Mahadev Bapu Jadhav P.W. 3, Suman Joshi P.W. 5, Mahadev Gurav P.W. 10, Banubal Sasane P.W. 6 and Anil Desal P.W. 7 were examined as eye-witnesses. The last two turned hostile but the first three supported the prosecution case. In addition the prosecution led evidence to show that weapons of assault and the clothes were recovered from the appellants. To prove the recovery of weapons it examined A.P.I. Dilip Patil and public panch Digambar Sawant.

The learned Trial Judge believed the evidence adduced by the prosecution, rejected the defence of the appellants which was of denial, and convicted and sentenced the appellants in the manner stated in para 1.

Hence this appeal.

We have heard learned counsel for the parties and perused the entire material on record. We are implicitly satisfied that there is no merit in this appeal and it deserves to be dismissed.

As is evident from what has been stated above the evidence against the appellants is of a dual nature viz. the ocular account furnished by Mahadev Bapu Jadhav P.W. 3 Suman Joshi P.W. 5 and Mahadev Gurav P.W. 10 and circumstantial, in the form of recovery of weapons of assault on the pointing out of the appellant and the blood stained clothes produced by them. In our view the said evidence inspires confidence.

We first begin with the ocular account furnished by Mahadev Bapu Jadhav P.W. 3, Suman Joshi P.W. 5 and Mahadev Gurav P.W. 10. Since Mahadev Bapu Jadhav P.W. 3 is the informant and an injured witness we begin with the account furnished by him.

We may mention that we have set out the prosecution story in para 3 primarily on the basis of the recitals contained in his examination-in-chief. Consequently we do not intend graphically reiterating the details contained in his evidence. His evidence shows that Ramchandra Narayan Mulik was the elder brother of the deceased Tukaram. It also shows that Ramchandra Narayan Mulik along with his son Pandit Ramchandra Mulik was living in deceased Tukaram''s house and when he acquired a house in Beghar Vasahat (about 5 to 6 years prior to the incident) Tukaram wanted him to leave his house. Since he did not do so Tukaram filed a Civil Suit against him in which he (Mahadev Bapu Jadhav) deposed in deceased Tukaram''s favour. His evidence shows that on account of this there was enmity between Ramchandra Narayan Mulik, Pandit Ramchandra Mulik and his associate Babu Gundu Kamble who had deposed for Ramchandra Narayan Mulik in a case on one hand and he and the deceased Tukaram on the other.

Mahadev Bapu Jadhav P.W. 3 stated that on 1.3.96 at about 8-8.30 p.m. while he was standing near his shop in village Ardal, deceased Tukaram came and asked him to accompany him for a walk towards Bhairi temple. After praying in the temple they proceeded towards the Bahiricha Mal and while they were returning by the cart road the appellants, out of whom Ramchandra Narayan Mulik was armed with an axe and appellants Pandit Ramchandra Mulik and Babu Gundu Kamble with sticks emerged. Pandit Ramchandra Mulik inflicted a stick blow on his head resulting in his running and concealing himself behind a heap of cow dung cakes lying nearby. From there he saw appellants Ramchandra Narayan Mulik with an axe and Pandit Ramchandra Mulik and Babu Gundu Kamble with slicks belabouring Tukaram and thereafter running away. When he reached his house on enquiries from his wife he told her about the incident. Then his wife went to the house of deceased Tukaram and informed Tukaram''s wife. She searched Tukaram''s body along with her son but could not find it. Thereafter he and Tukaram''s wife informed the Police Patil and when alongwith the Police Patil they again searched they noticed the corpse of deceased Tukaram lying on the metal road.

We have gone through the evidence of Mahadev Bapu Jadhav P.W. 3 and we find that he is an implicitly truthful witness. In the first place it should be borne in mind that he is an injured witness whose presence on the place of the incident is fixed by his injuries. It is pertinent to mention that the version of assault furnished by him both vis-a-vis himself and the deceased Tukaram is corroborated by medical evidence. He stated that the appellant Pandit Ramchandra Mulik assaulted him with a stick on his head. We have earlier seen that at 7.30 a.m. the next morning he was medically examined by Dr. Ashok Fernandes P.W. 9 who found on his frontal area a C.L.W. of the dimension of 8.5 c.m. x 1.5. c.m x 1.5 cm. It is pertinent to mention that Dr. Ashok Fernandes P.W. 9 stated that his head injury could be caused by the stick shown to him. Again it is pertinent to mention that the manner of assault given out by him relating to the deceased Tukaram is also corroborated by medical evidence. He stated that appellants Pandit Ramchandra Mulik and Babu Gundu Kamble with sticks and appellant Ramchandra Narayan Mulik with an axe belaboured the deceased Tukaram.

We have earlier extracted the ante mortem injuries found on the person of the deceased Tukaram by the Autopsy Surgeon Dr. Kadolikar P.W. 14. We have seen that the first five injuries were cut injuries. Injury No. 6 was a contused wound and injury Nos. 7 and 8 were abrasions. We have also seen that Dr. Kadolikar P.W. 14 categorically stated that the first five injuries could be caused by the axe shown to him and the last three by the sticks shown to him.

It should be borne in mind that the evidence of an injured witness deserves great weightage because injuries fix the presence of the witness on the place of the incident and once that is fixed the limited aspect which has to be decided is his credibility. We find him to be a wholly credible witness. We find that although Mahadev Bapu Jadhav P.W. 3 was subjected to extensive cross-examination but nothing could be extracted therefrom which could impair his credibility.

The learned counsel for the appellants strenuously urged that we should not believe his evidence because in his statement u/s 164 of the Cr.P.C.; with which he was confronted during the course of cross-examination, he had not stated thai appellant Pandit Ramchandra Mulik had assaulted him with a stick on his head but instead had stated that appellant Ramchandra Narayan Mulik had given stick blow on his head. We regret that we cannot accede to the contention of appellants'' counsel because the explanation given by him was that this dichotomy occurred since his mental condition was not sound at the time when his statement u/s 164 of the Cr.P.C. was recorded. We believe him because as seen earlier he had sustained a very substantial injury on his head.

Learned counsel for the appellants also invited our attention to some other omissions in his statement u/s 164 of the Cr.P.C. but they are inconsequential.

Learned counsel for the appellants also urged that his evidence should not be believed because he is on inimical terms having deposed in the civil suit from the side of the deceased Tukaram against appellant Ramchandra Narayan Mulik. In our view, the mere circumstance that he is on inimical terms would not be a ground to mechanically reject his evidence but would only make us examine it with caution. Having exercised the said caution we find his evidence to be credible.

We may also mention that apart from the fact that he says that he had witnessed the incident in moon light, it is apparent from his evidence that the three appellants were known to him and it is common knowledge that known persons, even in the absence of light, can be recognised by their gait, timbre of voice etc. And if an authority is needed, para 4 of the case in Kirpal Singh v. State of U.P., wherein the said proposition has been laid down, may be perused.

In our view the solitary statement of Mahadev Bapu Jadhav P,W. 3 is itself sufficient to sustain the conviction of the appellants for the offence u/s 302 r/w. 34 of the I.P.C.

We now come to the evidence of the other two witnesses viz. Suman Joshi P.W. 5 and Mahadev Gurav P.W. 10. We would take their evidence together because the latter at the time of the incident was sitting at the house of the former where he had come to take dinner. The evidence of Suman Joshi P.W. 5 shows that on 1.3.96 at about 8.30 p.m. she was sitting in the courtyard of her house along with Mahadev Gurav P.W. 10 who had come to take dinner. She saw that the informant and deceased Tukaram passed through the way in front of her house. She also saw the appellants standing at the door of their house (in her cross-examination she has stated that things from the house of the accused are visible from the door of her house). Thereafter her evidence and that of Mahadev Gurav P.W. 10 shows that they saw the appellant Pandit Ramchandra Mulik assaulting Mahadev Bapu Jadhav with stick and thereafter saw him and Babu Gundu Kamble assaulting Tukaram with sticks and Ramchandra Mulik assaulting Tukaram with axe.

We have gone through the evidence of Suman Joshi P.W. 5 and Mahadev Gurav P.W. 10 and we find that it inspires confidence.

In the first place it should be borne in mind that they are natural witnesses of the incident: Suman Joshi P.W. 5 because the place of the incident is in the vicinity of her house and Mahadev Gurav P.W. 10 because at the time of the incident he was at Suman Joshi''s place.

In the second place it should be borne in mind that their claim of having seen the incident is corroborated by medical evidence because the same shows blunt weapon injuries on the head of the informant and five cut wounds and three blunt weapon injuries on the person of deceased Tukaram.

Thirdly it should be borne in mind that both Suman Joshi P.W. 5 and Mahadev Gurav P.W. 10 had no rancor or ill-will against the appellants and are independent witnesses. In our view, in the absence of the same they would not have falsely implicated the appellants.

We may also mention that these witnesses have deposed about the source of light [moon light) in which they saw the incident. At any rate since the appellants were known to them, in view of the decision of the Supreme Court reported in Kirpal Singh Vs. State of Uttar Pradesh, they could have recognised them even in absence of light, by their gait, timbre of voice etc.

The learned counsel for the appellants strenuously urged that the evidence of Suman Joshi and Mahadev Gurav should not be relied upon because there were omissions in their statements u/s 164 of the Cr.P.C. We have examined the said omissions and in our view they are not destructive to their credibility.

In our view the ocular account furnished by Suman Joshi and Mahadev Gurav also inspires confidence.

We now come to the circumstantial evidence.

We have earlier referred to the recoveries of blood stained weapons effected on the pointing out of the appellants in the presence of the panchas. We have earlier mentioned that the said recoveries were effected on 4.3.1996 by A.P.I. Dilip Patil in the presence of public panch Digambar Sawant P.W.1 under separate panchnamas. On the pointing out of the appellant Ramchandra Narayan Mulik an axe which was concealed within the heap of fodder kept behind the back of the house of Ramchandra Narayan Mulik was recovered; on the pointing out of appellant Pandit Ramchandra Mulik a stick which was kept in the grass in the cattle shed of his house was recovered; and on the pointing out of appellant Babu Gundu Kamble a stick which was kept in the corner of his house was recovered. It is pertinent to mention that the said articles were sent to the Chemical Analyst who found blood of ''O'' group on the handle of the axe and human blood on axe and sticks. The Supreme Court in para 10 of the decision Khujji alias Surendra Tiwari v. State of Madhya Pradesh,'' has held that the presence of human blood on a recovered article is an incriminating circumstance. We may mention that although both A.P.I. Dilip Patil and public panch Digambar Sawant P.W. 1 were subjected to extensive cross-examination but the said recovery could not be discredited.

In our view the said recovery inspires confidence.

The learned counsel for the appellants strenuously urged that the said recovery should not be accepted because public panch Digambar Sawant P.W. 1 has admitted in his cross-examination that he had acted as a panch twice earlier. We have reflected over the said submission and in our view, the said recovery cannot be rejected. Firstly in our view, there is no legal impediment, because a person has acted as a panch earlier in accepting his evidence. We feel that on account of this circumstance his testimony has only to be scrutinized with caution. We have exercised that caution and since there is nothing in his cross-examination which could discredit the said recovery. In our view the said circumstance would make no difference.

Secondly even if for arguments'' sake the evidence of Digambar Sawant P.W. 1, is excluded there remains the credible evidence of A.P.I. Dilip Patil P.W. 13 in respect of this recovery. It is true that he is a police witness but way back in the year 1956 in the oft quoted case of Aher Raja Khima v. State of Saurashtra, the Supreme Court has held that there is no presumption in law that a Police Officer acts dishonestly and his evidence cannot be acted upon. We feel that in this case even had the public panch been not examined the evidence of A.P.I. Dilip Patil by itself would have been sufficient to accept the said recovery.

We now come to the blood stained clothes produced by the appellants which were seized by A.P.I. Dilip Patil in the presence of public panch Pandurang Kamble P.W. 8. We have earlier mentioned that appellant Pandit Ramchandra Mulik produced a blood stained full sleeves shirt: appellant Ramchandra Narayan Mulik a blood stained Nehru shirt, a blood stained lungi and a blood stained turban; and appellant Babu Gundu Kamble a blood stained dhoti. It is pertinent to mention that both A.P.I. Dilip Patil and Pandurang Kamble P.W. 8 were extensively cross-examined but nothing could be elicited therefrom which could discredit their evidence on the factum of production of the said clothes by the appellants. It is also pertinent to mention that the Nehru Shirt, full sleeves shirt and dhoti were sent to the Chemical Analyst who found on them human blood. In our view, the said circumstantial evidence also incriminates the appellants and provides assurance to the ocular account referred to earlier.

Lastly the learned counsel for the appellants contended that the learned trial Judge erred in convicting the appellants Pandit Ramchandra Mulik and Babu Gundu Kamble who assaulted the deceased Tukaram with a stick for the offence u/s 302 r/w. 34 of the I.P.C. He urged that since the three stick injuries viz. ante mortem injury Nos. 6 to 8 were simple and superficial in nature it can be safely inferred that the said appellants did not share the common intention with appellant Ramchandra Narayan Mulik to commit the murder of Tukaram. He contended that when the said appellants along with appellant Ramchandra Narayan Mulik launched the assault on the deceased Tukaram the common intention which can be inferred was that grievous hurt would be caused to the deceased.

We regret that we cannot accede to this submission. The evidence of the eye-witness shows that these two appellants came on the place of the incident armed with sticks along with appellant Ramchandra Narayan Mulik who was armed with axe. It shows that they also were inimical to the deceased Tukaram and along with Ramchandra Mulik chased Tukaram and all three of them then conjointly assaulted him. Their evidence also shows that after assaulting the deceased Tukaram all of them left together. In our view the said circumstances clearly demonstrate that they equally shared the common intention to commit the murder of the deceased Tukaram. For the said reasons we reject this submission.

In the result we confirm the conviction and sentence of the appellants for the offence u/s 302/34 of the I.P.C. and appellant Pandit Ramchandra Mulik for the offence u/s 324 of the I.P.C. and dismiss this appeal.

The appellant are in jail and shall serve out their sentence.