State of Maharashtra vs Baban Shankar Daphal and Others

Dr. Shalini Phansalkar Joshi, J—State has preferred this Appeal challenging the Judgment dated 3rd March, 1994 of 3rd Additional Sessions Judge, Satara in Sessions Case No. 129 of 1987, thereby acquitting the Respondents for the offence punishable under Section 302 r/w. 34 of the IPC.

For the sake of convenience, parties herein are referred to by their original nomenclatures as "Accused Nos. 1 to 7".

Brief facts of the Appeal can be stated as follows:--

"PW-3 Kamal is the wife of deceased Lalsaheb. PW-4 Sushila is their daughter and PW-7 Sanjay is their son. Lalsaheb has two brothers, namely, Accused No. 5 Shankar and Accused No. 6 Hanmant. Accused Nos. 1 to 3 are sons of Shankar, whereas, Accused No. 4 is son of Hanmant and Accused No. 7 Kalpana is wife of Accused No. 1 Baban. After committal of the case to the Sessions Court, Accused No. 5 Shankar has expired. Hence, case against him was abated. Accused No. 6 Hanmant is also reported to have died during pendency of the Appeal. Hence, Appeal stands abated against him also."

The relations between deceased Lalsaheb and Accused were strained since last about twenty years prior to the incident. Some criminal complaints were also filed against each other.

Deceased Lalsaheb was serving in the Mill at Bombay. About 15 days prior to the incident, he came to his native place at Village Brahamanwadi and sold one neem tree to PW-8 Shankar Kadam. As per prosecution case, Accused No. 2 Prakash got annoyed with the same and confronted PW-8 Shankar by saying that he was also having a share in the said tree and, therefore, Shankar should not cut that tree. Deceased Lalsaheb challenged the contention of Accused No. 2 Prakash that he is having share in the said tree. Hence, just three days before the incident, on 23rd September, 1987, there was hot exchange of words between Lalsaheb and Accused No. 2 Prakash.

On 26th September, 1987, at about 6 pm, Lalsaheb and his son PW-7 Sanjay, while returning from their field, came to their cattle-shed. At that time, PW-3 Kamal was milching the cattle. Lalsaheb put fodder before the cattle and he and PW-7 Sanjay started proceeding towards their house. They had just covered the distance of about twenty paces. By that time, Accused No. 2 Prakash came there with stick in his hand and assaulted Lalsaheb with the stick on his head. As a result, Lalsaheb fell down. PW-3 Kamal, who was coming out of the cattle-shed, rushed to rescue Lalsaheb and fell on his body to save him from further assault. By that time, Accused Nos. 1, 3, 4 and 6 also came to the spot. Accused No. 7 Kalpana pulled the hair of PW-3 Kamal and removed her from the body of Lalsaheb. Then, Accused Nos. 1, 3 and 4 assaulted Lalsaheb with sticks in their hands.

Hearing the commotion, PW-4 Sushila also rushed there. Accused No. 6 Hanmant and deceased Accused Shankar prevented PW-4 Sushila and her sister from rushing to the help of her parents. They threatened to kill them, if they come forward. They exhorted by saying that let Lalsaheb die. Lalsaheb had become unconscious due to the assault. PW-3 Kamal and her daughters then started taking him to their house. Thereupon Accused No. 1 Baban twisted the left hand of Lalsaheb, due to which there was fracture to his left hand.

After the Accused left the spot, PW-3 Kamal and her daughters carried Lalsaheb to his house. Then Kamal and her son PW-7 Sanjay went to the house of PW-6 Police Patil Vithal Ghorpade and gave him information of the incident. Police Patil Ghorpade came along with them to their house and saw the condition of Lalsaheb. They decided to take Lalsaheb to Civil Hospital, Satara for medical treatment. However, they could not get any vehicle to do so. Lalsaheb then succumbed to the injuries sustained in the incident at about 11:30 pm in the night. On the next day, early in the morning, PW-4 Sushila went to Satara Taluka Police Station and lodged complaint against the Accused.

On her complaint (Exhibit-33), PW-9 PSI Inas Kuris registered C.R. No. 114 of 1987 against the Accused for the offences punishable under Sections 148, 302 and 323 r/w. 149 of the IPC. Then he visited the place of offence and prepared Inquest Panchanama (Exhibit-14). After the Inquest Panchanama, he referred the dead body of Lalsaheb to Civil Hospital, Satara for the postmortem examination. On the same day, he drew the Scene of Offence Panchanama vide Exhibit-28 and collected the blood stains, blood mixed soil and simple soil from the spot. Then he recorded the statements of the witnesses and took the search of the Accused. Accused No. 7 Kalpana, wife of Accused No. 1 Baban, was present in the house at the time of taking search of the Accused. She produced the blood stained shirt of Accused No. 1 Baban, which PW-9 PSI Kuris seized under Panchanama (Exhibit-29).

On 27th September, 1987, PW-9 PSI Kuris arrested all the Accused under Panchanama (Exhibit-15). He also seized clothes of the deceased under Panchanama (Exhibit-16).

During custodial interrogation of Accused on 28th September, 1987, at the instance of Accused No. 2 Prakash, in pursuance of his Memorandum Statement, one stick came to be seized under Panchanama (Exhibit-25) from the fodder in his house, whereas, two sticks came to be seized under Panchanama (Exhibit-27) at the instance of Accused No. 1 Baban from his house. The seized muddemal articles were sent to Chemical Analyzer. The C.A. Reports are received vide Exhibits "17" to "20", whereas, Postmortem Report is received vide Exhibit-49. Further to completion of investigation, Charge-Sheet is filed in the Court against in all seven Accused.

After committal of the case to the Sessions Court, before framing of charge, original Accused No. 5 Shankar expired. Hence, Trial Court framed charge against the remaining Accused vide Exhibit-6. Accused pleaded not guilty and claimed trial.

In support of its case, prosecution examined in all nine witnesses and on appreciation of their evidence, the Trial Court was pleased to acquit the Accused of all the charges levelled against them.

This Judgment of the Trial Court is challenged in the Appeal by learned A.P.P., whereas, supported by learned Counsel for the Accused. In our considered opinion, before adverting to the rival submissions advanced by them, it would be useful to refer to the evidence on record.

The prosecution case stands on the evidence of three eye witnesses, namely, PW-3 Kamal, PW-4 Sushila and PW-7 Sanjay. PW-3 Kamal is the wife, whereas, PW-4 Sushila is the daughter and PW-7 Sanjay is the son of deceased Lalsaheb. The prosecution has also, to some extent, placed reliance on the evidence of PW-5 Hari Mane, the neighbour, PW-6 Police Patil Vithal Ghorpade and PW-8 Shankar Kadam, who has purchased Neem tree from the deceased.

As per evidence of PW-3 Kamal and PW-7 Sanjay, at the time of incident, Lalsaheb and Sanjay were returning from the field. First they came to the cattle-shed, where PW-3 Kamal was milching the cattle. They gave fodder to the cattle and then they were proceeding to their house. According to Sanjay, he was following his father and was at the distance of 15 to 20 paces behind. At that time, he saw that Accused No. 2 Prakash came out from his house with a bamboo stick and when his father was passing from, near the house of Accused No. 2, Accused No. 2 Prakash assaulted his father by stick on his head. As a result, his father fell down. Accused Nos. 1, 3 and 4 also came at the spot from their houses and they started assaulting his father. Hence, his mother PW-3 Kamal fell on the body of his father to save him from the assault. However, Accused No. 7 Kalpana pulled hair of his mother and removed her. Then Accused Nos. 1 to 4 gave stick blows to his father. He himself and his sister tried to go near their father, but Accused No. 6 Hanmant and Accused No. 5 Shankar (since deceased) prevented them and also threatened them. Accused No. 1 Baban then twisted the left hand of his father, which resulted into fracture. After the incident, his father was lying unconscious. They carried him into their house. Then he himself and his mother went to the house of PW-6 Police Patil Ghorpade and informed him about the incident. PW-6 Police Patil came to their house. They tried to secure one vehicle for taking their father to the hospital. However, as the vehicle was not available, they could not do so. On that night, his father succumbed to the injuries. On the next day thereafter, his sister PW-4 Sushila lodged report about the incident.

There is corroborating evidence of PW-3 Kamal, who has also seen the actual incident. She has deposed that when her husband and son Sanjay returned from the field, she was in the cattle-shed, milching the cattle. Her husband put fodder before the cattle and her husband and son Sanjay started proceeding to their house. They had just covered 25 paces from the cattle-shed. At that time, Accused No. 2 Prakash confronted her husband. He had stick with him and he assaulted her husband with the stick on his head. Her husband fell down. She was coming out of the cattle-shed and the spot of incident was also visible from the cattle-shed. When she saw the assault on her husband, she rushed towards him and fell on his body to save him from further assault. Accused Nos. 1, 3, 4 and 7 then came there. Accused No. 7 Kalpana pulled her hair and removed her. Then Accused Nos. 1, 3 and 4 further assaulted her husband with sticks. Her daughters PW-4 Sushila and Bharati rushed there. They and PW-7 Sanjay tried to intervene, but Accused No. 6 Hanmant threatened them and did not allow them to do so. Thereafter, when she herself and her son were carrying her husband to their house, Accused No. 1 Baban twisted the left hand of her husband, which resulted into fracture. After they carried her husband to their house, she and her son Sanjay went to the house of PW-6 Police Patil Ghorpade at Tasgaon. PW-6 Police Patil Ghorpade came along with them to their house. He saw the condition of her husband and they decided to take him to the Civil Hospital for treatment, but they could not get the bullock-cart. Her husband died in the house at about 11:30 pm. On the next day, her daughter PW-4 Sushila lodged the complaint at the Police Station.

Lastly, there is evidence of PW-4 Sushila, who, at the time of incident, was in the house and on hearing the shouts of her mother, she had rushed to the spot and found that her father was fallen down. Her mother was lying on the body of her father. Accused No. 7 Kalpana pulled her mother. She further saw that Accused Nos. 1 to 4 then assaulted her father again with stick blows. When she wanted to intervene, Accused No. 6 Hanmant prevented her from doing so by giving threatening to her. Accused No. 1 Baban has also twisted the left hand of her father. Her father had become unconscious. They brought him to the house. Then her mother and brother went to the house of PW-6 Police Patil Ghorpade. Police Patil came there. As the vehicle could not be made available for carrying her father to the hospital, her father died at home itself at 11 pm. On the next day, she went to the Police Station and lodged complaint (Exhibit-33) at 8:30 am.

All these three eye witnesses are cross-examined at length but learned Counsel for the Defence has not succeeded in making any dent in their testimony, except for eliciting minor discrepancies and inconsistencies, which are bound to occur in the evidence of any truthful witness. Such normal discrepancies are due to errors of observation, errors of memory due to lapse of time, due to mental disposition, such as, shock and horror at the time of incident. Such discrepancies are always there, howsoever honest and truthful a witness may be.

As held by the Apex Court in Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh, AIR 2003 SC 976 : (2003) CriLJ 1226 : (2003) 2 JT 191 : (2003) 1 SCALE 357 : (2003) 2 SCC 661 : (2003) AIRSCW 469 : (2004) AIRSCW 6893 : (2003) 4 Supreme 74 : (2003) 1 Supreme 890 , in honest witnesses, discrepancies are due to differences in individual powers of observation, recollection, reproduction and recitation and not necessarily due to deliberate attempt to suppress or depart from the truth. The broad facts of the case and not minor details have to be considered in weighing evidence. The Court has to distinguish between minor and material discrepancies.

In our considered opinion, in this case, the Trial Court is unnecessarily swayed by some minor discrepancies appearing in the evidence of these witnesses, like, exactly when the left hand of the deceased was twisted by Accused No. 1 Baban. Because, according to PW-3 Kamal and PW-7 Sanjay, while they were carrying deceased to their house, Accused No. 1 Baban twisted his left hand, whereas, according to PW-4 Sushila, when he was lying there, at that time itself his left hand was twisted. In our considered opinion, this is too minor a discrepancy. It cannot affect the core of their testimony that the left hand of the deceased was twisted by Accused No. 1 Baban. Whether it was at the time when he was lying on the spot in unconscious condition or whether it was at the time when he was being carried to the house by PW-3 Kamal and PW-7 Sanjay, is not material.

The Trial Court has also given undue significance to the fact that PW-3 Kamal has not deposed that she was also assaulted by the stick. In our considered opinion, merely because PW-3 Kamal has not stated so, the evidence of these eye witnesses cannot be disbelieved. It is for the simple reason that Kamal was overtaken by the entire incident as it has happened all of a sudden. In the said incident, about seven accused persons were assaulting the deceased with sticks. In such situation, when the simultaneous assault was made by large number of accused persons and when the witness herself was involved in rescuing the deceased from the said assault, if she has not stated anything about the assault on herself, her evidence cannot be disbelieved on that count.

The Trial Court has disbelieved the prosecution case, also on the ground that PW-3 Kamal has not stated that she has sustained any injuries. Actually the evidence of Kamal and other two eye witnesses, if properly appreciated, goes to reveal that Accused No. 7 Kalpana pulled her hair and removed her from the body of Lalsaheb. Therefore, it was not the case that when Accused Nos. 1, 3 and 4 were assaulting her husband with sticks, she was lying on his body, so that she should sustain some visible injuries on her body. Therefore, there was absolutely no reason for the Trial Court to disbelieve the evidence of these witnesses.

As regards the observation of the Trial Court that conduct of PW-7 Sanjay of not intervening in the incident is unnatural, least said is better. At the time of incident, Sanjay was hardly a boy of 14 to 15 years. His mother had intervened already and was saving his father from the assault. His evidence and the evidence of PW-4 Sushila revealed that Accused had threatened them and not allowed them to intervene in the assault. They were literally prevented from doing so. In such circumstances, there was nothing unnatural in the conduct of Sanjay.

In the absence of any straight jacket formula as to how a witness should react in a particular way, the conduct of the witness cannot be labelled as unnatural. It is judicially recognized that everyone reacts in his own special way. Hence, to discard the evidence of the witness on the ground that he did not react in a particular manner, is to appreciate evidence in a wholly unrealistic and unimaginative way. "At times, ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details. By and large, a witness also cannot be expected to possess a photographic memory and to recall the details of an incident, when the witness is giving evidence in the Court. Therefore, it is not as if a video tape is replayed on the mental screen."

These observations of the Supreme Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 : (1983) CriLJ 1096 : (1983) 2 Crimes 232 : (1983) 1 SCALE 665 : (1983) 3 SCC 217 : (1983) 3 SCR 280 , can be usefully referred to, wherein, in addition to the above observations, it was observed that, "ordinarily a witness cannot be expected to recall accurately the sequence of events which took place in rapid succession or in a short time span. A witness is liable to get confused or mixed up when interrogated later on. That is the reason why discrepancies in detail or sequence of events, which do not go to the root of the matter and shake the basic version of the witnesses, cannot be annexed with undue importance. More so, when all important "probabilities-factor" echoes in favour of the version narrated by the witnesses".

Here in this case, we are constrained to observe that the manner in which the Trial Court has appreciated the evidence of these three eye witnesses, whose presence at the spot is natural, whose reaction is also natural, is wholly unrealistic and insensitive. We find their evidence to be thoroughly consistent, truthful and reliable. It is having a colour of consistency, a sense of straightforwardness and ring of truthfulness. We do not find any reason to disbelieve them in any way.

Their evidence is also completely supported by the medical evidence on record. The Inquest Panchanama (Exhibit-14), the Postmortem Report (Exhibit-49) and Death Certificate (Exhibit-52) are admitted in evidence by the Defence. The Postmortem Report proves that there were following external and internal injuries, as noted in Column Nos. 17 and 18:--

"1) CLW over left tempo parietal region 2" x 5" x bone deep.

2) CLW above upper civic 2" x 5" x bone deep oblique.

3) CLW over left mascular region 2" x 5" x bone deep obliquely over left tempo parietal region.

4) Abrasion over left tom oblique 3" x 5"

5) Abrasion over right ankle.

6) Swelling with deformity of left arm middle 1/3, denoting fracture of humerous.

7) Swelling over left wrist, denoting fracture of left wrist."

These injuries were antemortem in nature and the cause of the death was "subdural hematoma with intracerebral laceration due to fracture of left tempo parietal region". The presence of, therefore, three CLWs and two abrasions, go to prove the assault by stick by more than one person, whereas, the hematoma on tempo parietal region proves that the assault was on head, as deposed by these witnesses. The fracture to left hand supports the evidence of the witnesses that Accused No. 1 Baban has twisted the left hand of the deceased.

There is also corroboration to this case of prosecution from the evidence of the independent witnesses. It is true that they have not fully supported the prosecution case and hence they are declared hostile and disowned by prosecution. But, their evidence cannot be washed away or wiped out from the record altogether. Part of their evidence, which supports and is consistent with the prosecution case, can be relied upon.

PW-5 Hari Mane is residing near the house of the Accused and his presence at the spot is natural. According to him, when he was returning from the field, he saw that Lalsaheb was fallen down near his house and was being carried to his house by his wife and daughters. As per prosecution case, he has actually witnessed the incident of assault, which he has denied in his evidence before the Court. Therefore, he was declared hostile and cross-examined by A.P.P. In his cross-examination, he has admitted that Lalsaheb has sustained injury with bleeding on his head. He has further admitted that there was a dispute between Lalsaheb and his brother Shankar in respect of a Neem tree, which Lalsaheb has sold to PW-8 Shankar Kadam. He has also admitted that just 2-3 days before the incident, there was a quarrel between Lalsaheb and Accused Nos. 2 and 3. He has also deposed that there were frequent quarrels between Lalsaheb and his brother Shankar and sons of Shankar.

The reason why he had not fully supported the prosecution case appears to be that Accused No. 3 Suresh, is his son-in-law, as admitted by him. Even then, whatever he has stated also corroborates substantially the case of prosecution as to the occurrence of the incident, in which Lalsaheb was found injured, and about the motive or cause of the incident.

Even as regards PW-6 Police Patil Ghorpade, he has admitted that on the date of incident, PW-3 Kamal had come to his house at about 7:30 pm and informed him about the quarrel between Lalsaheb and his brother Shankar, in which Lalsaheb had sustained the injuries. According to his evidence, along with PW-3 Kamal, he came to her house and saw that Lalsaheb was unconscious. They decided to take him to the hospital for treatment, but could not get the vehicle. It is true that he has denied suggestion that PW-3 Kamal told him that Accused had assaulted Lalsaheb, but then in his cross-examination by A.P.P., he has admitted that by giving assurance to PW-3 Kamal that he would secure some vehicle and if vehicle was not available, he would come in the morning, he has left her house. Then on the next day, along with PW-4 Sushila, he had gone to the Police Station to lodge the complaint against the Accused. Therefore, he is also not outrightly denying the entire prosecution case as such. Otherwise, there was no reason for him to accompany PW-4 Sushila to the Police Station for lodging the complaint against the Accused.

As to the motive for the incident, the evidence of PW-8 Shankar Kadam goes to prove that he has purchased the Neem tree from Lalsaheb for Rs. 350/-. Though he has denied that Accused No. 2 Prakash had confronted him about the same, the fact remains that he has purchased the Neem tree from Lalsaheb alone, which was the cause for grievance on the part of accused persons and as admitted by PW-5 Hari Mane, an independent witness and neighbour, there was a dispute between Lalsaheb and Accused Shankar in respect of the Neem tree, which Lalsaheb has sold, and on that count, there was quarrel also 2-3 days before the incident. Thus, the prosecution has sufficiently proved the motive and genesis of the incident also.

There is not a single suggestion put to any of the witnesses explaining how the Lalsaheb has sustained the injuries, which ultimately resulted into his death. Merely because there were some more independent witnesses also, who had reached there, as deposed by PW-4 Sushila, the evidence of the witnesses examined by the prosecution cannot be disbelieved. As a matter of fact, the relatives of the deceased are the last persons to save the real culprit and implicate some innocent. Hence, their evidence is of much importance. The law nowhere states that the evidence of the interested witness should be discarded altogether. The law only warrants that their evidence should be scrutinized with care and caution.

In the instant case, the evidence of the three eye witnesses, who are close relatives of the deceased and whose presence at the spot is also natural one, is found to be truthful. In the F.I.R., which is lodged immediately in the morning, all the details of the incident are also appearing and it gives corroboration to the prosecution case. It is pertinent to note that PW-3 Kamal and her children did not get vehicle even to take the deceased to the hospital for further treatment, though they attempted to secure vehicle, even the bullock-cart, to do so. Hence, it is but natural that they could not lodge the complaint immediately on the very night as there was no means of transport available to them. However, they had reported the matter immediately to Police Patil of the Village, who had also made an attempt to secure the vehicle, but was unsuccessful. Hence, on the next day, in the early morning, they had gone to lodge the complaint. The offence is registered at 8:30 am. Therefore, in the instant case, it also cannot be said that there is delay in lodging the complaint or it is unexplained so as to disbelieve the prosecution case.

Though the prosecution has also relied upon the recovery of the sticks at the instance of Accused Nos. 1 and 2, that evidence is merely of a corroborating nature and for the sake of arguments, even if it is excluded from consideration, in view of the fact that C.A. Report (Exhibit-17) does not connect it with the commission of the offence, as the results of blood grouping are inconclusive, in our considered opinion, that does not make much difference to the prosecution case once the evidence of the eye witnesses is found to be thoroughly consistent and reliable.

Therefore, on ultimate analysis and re-appreciation of entire evidence on record, we find that the view taken by the Trial Court of acquitting the Accused, disbelieving entire prosecution case as such, without taking any effort of separating the grain from chaff, cannot be called as the "reasonable" or "possible" view of the matter. By giving undue importance to the minor discrepancies and magnifying the so called infirmities in the prosecution case, without engaging in the attempt of disengaging truth from falsehood, the Trial Court has committed an error in acquitting the Accused. Therefore, the view taken by the Trial Court being not a reasonable view of the matter, it calls for interference.

In view of specific allegations of assault with sticks against Accused Nos. 1 to 4, it has to be held that the prosecution has succeeded in proving its case against Accused Nos. 1 to 4 for the offence punishable under Section 302 r/w. 34 of the IPC. As regards Accused No. 7 Kalpana, the benefit of doubt is extended to her as no specific act of assaulting the deceased is attributed to her.

Hence, the Appeal is partly allowed.

The impugned Judgment and Order of the Trial Court acquitting Respondent/Accused No. 1 Baban Daphal, Respondent/Accused No. 2 Prakash Sawant, Respondent/Accused No. 3 Suresh Sawant and Respondent/Accused No. 4 Subhash Sawant of the offence punishable under Section 302 r/w. 34 of the IPC is quashed and set aside.

Respondent Nos. 1 to 4, as referred above, are convicted for the offence punishable under Section 302 r/w. 34 of the IPC and sentenced to suffer R.I. for life and to pay fine of Rs. 5,000/- each, in default to suffer R.I. for one year.

The acquittal of Respondent No. 6/Original Accused No. 7 Kalpana Daphal by the Trial Court is, however, confirmed.

Respondent Nos. 1 to 4 to surrender to their Bail Bonds within eight weeks.