Bombay High Court
Sk.Ayyub S/O Sk.Karim vs The State Of Maharashtra on 1 September, 2010
Author: A.V.Potdar
Bench: P.V. Hardas, A. V. Potdar
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.230 OF 2008
1. Sk.Ayyub s/o Sk.Karim
Age-30 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
2. Sk.Noor s/o Sk.Karim,
Age-20 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad APPELLANTS
VERSUS
The State of Maharashtra RESPONDENT
.......
Mrs.S.S.Jadhav, Advocate for the appellants
Mr.N.R.Shaikh, A.P.P. for respondent State
.......
WITH
CRIMINAL APPEAL NO.231 OF 2008
1. Sk.Kayyum s/o Sk.Karim
Age-27 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
2. Sk.Firoz s/o Sk.Karim,
Age-35 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad APPELLANTS
VERSUS
The State of Maharashtra RESPONDENT
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2
.......
Mr.Joydeep Chatterjee,, Advocate for the appellants
Mr.N.R.Shaikh, A.P.P. for respondent State
.......
WITH
CRIMINAL APPEAL NO.482 OF 2007
1. Sk.Karim s/o Sk.Gafoor
Age-60 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
2. Shamabi w/o Sk.Feroz,
Age-30 years, Occ-Household
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
3. Shakila bee w/o Sk.Ajij
Age-42 years, Occ-Household
R/o Bidkin, Tq-Paithan
Dist-Aurangabad APPELLANTS
VERSUS
The State of Maharashtra RESPONDENT
.......
Mr.N.S.Ghanekar, Advocate for the appellants
Mr.N.R.Shaikh, A.P.P. for respondent State
.......
WITH
CRIMINAL APPEAL NO.264 OF 2008
The State of Maharashtra
Through Police Station Bidkin,
Tq-Paithan, Dist-Aurangabad APPELLANT
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3
VERSUS
1. Sk. Karim s/o Sk.Gafoor,
Age-60 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
2. Sk.Kayyum s/o Sk.Karim
Age-27 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
3. Sk.Feroz s/o Sk.Karim
Age-35 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
4. Sk.Ayyub s/o Sk.Karim
Age-30 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
5. Shambi w/o Sk.Feroz
Age-30 years, Occ-Household
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
6. Shakila bee w/o Ajij
Age-42 years, Occ-Household
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad
7. Sk.Noor Sk.Karim
Age-20 years, Occ-Agriculture
R/o Bidkin, Tq-Paithan,
Dist-Aurangabad RESPONDENTS
.......
Mr.N.R.Shaikh, A.P.P. for appellant State
Mr.N.S.Ghanekar, Advocate for respondents No.1 and 4 to 7
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4
Mr.Jyodeep Chatterjee, Advocate for respondents No.2 and 3
.......
[CORAM : P.V.HARDAS AND
A.V.POTDAR, J.J.]
DATE : 1st September 2010
ORAL JUDGMENT (PER A.V.POTDAR, J.):
1. Appellants in Criminal Appeal No.230/2008 are original accused No.4 and 11 in Sessions Case No.6/2006. They are convicted for an offence punishable u/s 304 Part I r/w section 149 and u/s 147 of the Indian Penal Code. Accused No.4 was also convicted for an offence punishable u/s 148 of the Indian Penal Code. Accused No.4 was sentenced to suffer Rigorous Imprisonment for years and to pay a fine in the sum of Rs.3000/-, in default, to suffer further Rigorous Imprisonment for one year for the offence punishable u/s 304 Part I r/w section 149 of the Indian Penal Code. Accused No.11 was sentenced to suffer Rigorous Imprisonment for 8 years and to pay a fine in the sum of Rs.3000/-, in default to suffer further Rigorous Imprisonment for one year for the offence punishable u/s 304 Part I r/w 149 of the Indian Penal Code. Both these accused were sentenced to suffer Rigorous Imprisonment for one year u/s 147 of the Indian Penal Code. Accused No.4 was also sentenced to suffer Rigorous Imprisonment for one year for an offence punishable u/s 148 of the Indian Penal Code. All the substantive sentences were to run concurrently.
::: Downloaded on - 09/06/2013 16:23:43 ::: 5Appellants In Criminal Appeal No.231/2008 are original accused No.2 and 3 in Sessions Case No.6/2006 and both of them were convicted for an offence punishable u/s 304 Part I r/w 149 of the Indian Penal Code and u/s 147 of the Indian Penal Code. Both these appellants were sentenced to suffer Rigorous Imprisonment for 8 years and to pay a fine of Rs.3000/- each and in default, to suffer further Rigorous Imprisonment for one year. Both these appellants were also sentenced to suffer further Rigorous Imprisonment for one year for the offence punishable u/s 147 of the Indian Penal Code. All the substantive sentences were to run concurrently.
Appellants in Criminal Appeal No.482/2007 are original accused No.1, 5 and 9 in Sessions Case No.6/2006. All these appellants were convicted for an offence punishable u/s 304 Part I read with section 149 and u/s 147 of the Indian Penal Code. All these appellants were sentenced to suffer Rigorous Imprisonment for a period of 3 years and to pay a fine of Rs.3000/- each and in default, to suffer further Rigorous Imprisonment of one year. All these appellants were also sentenced to suffer Rigorous Imprisonment for one year for the offence punishable u/s 147 of the Indian Penal Code. All the substantive sentences were to run concurrently.
By these three criminal appeals, the appellants-original ::: Downloaded on - 09/06/2013 16:23:43 ::: 6 accused No.1 to 5, 9 and 11, have challenged the judgment and order dated 22.12.2007 passed by Ad Hoc Additional Sessions Judge-4, Aurangabad in Sessions Case No.6/2006.
The State has also assailed the same judgment, by preferring Criminal Appeal No.264/2008 and prayed for enhancement of the sentence and convict the accused for an offence punishable u/s 302 r/w 149 of the Indian Penal Code.
02. As all these four appeals filed by the accused and State, respectively, arise out of judgment and order dated 22.12.2007 in Sessions Case No.6/2006, they are being disposed of by this common judgment.
03. All the appellants will be referred by their nomenclature in the impugned judgment.
04. The facts, in nut shell, which gave rise to file the present appeals can be summarized thus -
a) Agricultural land of deceased Gorakh Chaudhari, Machhindra Chaudhary and the accused persons are situated adjacent to each other at Bidkin, Tq-Paithan, Dist-Aurangabad.
There was old boundary dispute between the parties. Land of the deceased is locally known as "Barad".
::: Downloaded on - 09/06/2013 16:23:43 ::: 7b) On 29th January 2006 at about 6.00 a.m. or so, deceased Gorakh was giving water to the standing wheat crop in the said field. At about 10.30 a.m. the accused along with 4/5 unknown persons, armed with deadly weapons, entered in the field and accused No.1 Shaikh Karim took up quarrel with deceased Gorakh on account of damage to the common boundary. During the said process accused No.3 Shaikh Firoz inflicted stick blow on the head of deceased Gorakh while accused No.4 Shaikh Ayyub and accused No.11 Shaikh Noor gave blow of axe on the legs, writs and palms of Gorakh. On hearing shouts of Gorakh, his brother Machhindra and Mangala-wife of Machhindra, rushed to the spot and they were also assaulted by the appellants and others, by means of axe and sticks. Due to the said assault all the three-
Gorakh, Machhindra and Mangala, collapsed on the spot.
Thereafter the accused and others ran away from the spot. The incident was informed to the police. After arrival of the police the injured were initially taken to the Primary Health Centre, Bidkin where the injured were examined by Dr.Govardhan Doiphode (PW-8). The Medical Officer had opined that Gorakh was in a position to give statement. Thereafter, his statement was recorded by PSI Tulshiram Dhumal (PW-9). On the basis of the said statement (Exhibit-66) an offence at Crime No.9/2006 was registered with Bidkin police station against the appellants and others for an offence punishable u/s 143, 147, 148, 149, 324, 323, 504 of the Indian Penal Code. Dr.Govardhan (PW-8), considering the nature of injuries sustained by the injured, advised to refer ::: Downloaded on - 09/06/2013 16:23:43 ::: 8 them to Ghati Hospital, Aurangabad for further treatment.
c) Investigation in Crime No.9/2006 was handed over to API Sampat Sakharam Shinde (PW-14). During the course of investigation, he visited the spot and drew spot Panchanama (Exhibit-49). On 29.01.2006 itself he arrested accused No.1, 2, 3, 4 and 5. Investigating Officer also seized clothes on the persons of the accused under various Panchanamas.
d) Injured Gorakh was reported to be dead while taking treatment in Ghati Hospital Aurangabad on 30.01.2006. Autopsy was conducted on his dead body by Dr.Ramkrishna Bhusale (PW-13). The Post Mortem report in respect of deceased Gorakh is at Exhibit-78. As injured Gorakh, expired in the hospital, offence punishable u/s 302 of the Indian Penal Code was added in Crime No.9/2006 and thereafter original accused No.6, 7 and 8 were arrested.
e) While in custody accused No.4 made disclosure statement (Exhibit-39) and at his instance an axe was recovered under Panchanama (Exhibit-40).
f) Injured Machhindra also expired on 04.02.2006 while under treatment. Autopsy was conducted on his dead body by Dr.Bhusale (PW-13) and the Post Mortem report is at Exhibit-79.
::: Downloaded on - 09/06/2013 16:23:43 ::: 9g) While in custody, on 07.02.2006, accused No.3 Firoz made a disclosure statement and at his instance one axe was recovered. The axe was seized under Panchanama (Exhibit-33) on the same day. Similarly, on the same day on the basis of disclosure statement made by accused No.2, Kayyum one stick was recovered, and the same was seized under Panchanama (Exhibit-34).
h) Original accused No., Shaikh Aziz, and original accused No.11-Shaikh Noor were arrested on 22.01.2007 while original accused No.12 Shaikh Osman was arrested on 01.09.2006.
i) Investigating Officer thereafter forwarded the seized articles to Chemical Analyzer along with forwarding letter (Exhibit-88). He also collected relevant documents in respect of previous litigation between the parties (Exhibit-89 and 98). The Investigating Officer had also collected MLC record from Ghati Hospital (Exhibit-116) and after completion of investigation, submitted charge sheet against the accused. After passing of necessary committal order, the matter was committed to the Court of Sessions, Aurangabad.
j) Initially, charge sheet was filed against accused No.1 to 9, as accused No.10, 11 and 12 were absconding. However, after their arrest, supplementary charge sheet was filed against them in Sessions Case Nos. 32/2007 and 33/2007. Thereafter, the trial against all the accused was amalgamated and joint trial was ::: Downloaded on - 09/06/2013 16:23:43 ::: 10 conducted. Initially, on 20.06.2006 charge was framed against 9 accused only for an offence punishable u/s 302 r/w 149, u/s 143, 147, 148, u/s 324 r/w 149 u/s 323 r/w 149 u/s 504 r/w 149 and u/s 120 B of the Indian Penal Code. Subsequently, on 20.02.2007, the charge was altered and framed against all the 12 accused as two sessions cases No.32/2007 and 33/2007 were clubbed in Sessions Case No.6/2006. All the accused pleaded not guilty of the charge and claimed to be tried.
05. It appears that to substantiate the charge leveled against all the accused, the prosecution examined 15 witnesses.
Prosecution Witness No.1 Raghunath Mohan Rathod, was a Pancha witness in respect of seizure Panchanamas of the clothes on the persons of accused No.2 (Exhibit-28) and accused No.3 (Exhibit-29) who identified Articles No.1 to 4 as the clothes were seized in his presence from the person of accused No.2 and 3.
Prosecution Witness No.2, Vithal Baburao Teke, was also a Pancha Witness to the disclosure statement made by accused No.3 Firoz on 07.02.2006 (Exhibit-31), disclosure statement of accused No.2, Shaikh Kayyum (Exhibit-32) Seizure Panchanama of recovery of axe Article 12 at the instance of accused No.3 Firoz (Exhibit-33) and seizure Panchanama of wooden log, Article 13 at the instance of accused No.2 Kayyum (Exhibit-34). Prosecution Witness No.3, Vishwanath Bhikan Sankh, was also a Pancha to the inquest Panchanama conducted on the body of deceased Machhindra on 04.02.2006 (Exhibit-36). Prosecution witness No.4, Ashok ::: Downloaded on - 09/06/2013 16:23:43 ::: 11 Marotrao Hiwale, was a Pancha witness to the inquest Panchanama drawn on 30.01.2006 on the dead body of Gorakh (Exhibit-38), Pancha to the disclosure statement made by accused No.4 Ayyub on 03.02.2006 (Exhibit-39) and Pancha to the seizure Panchanama of recovery of Article No.8, an axe, at the instance of accused No.4 Ayyub (Exhibit-40). Prosecution witness No.5 Dnyaneshwar Vinayak, was a Pancha witness to the Panchanama of the place of offence (Exhibit-49). Prosecution also examined Witness No.6 Raju Nanabhau Chaudhari, brother of deceased (Exhibit-54) and Witness No.7 Mangala Machhindra Chaudhary, an eye witness to the incident (Exhibit-58), whose statement was recorded on 30.01.2006. Prosecution further examined witness No. 8, Dr.Govardhan, Doiphode, (Exhibit-65), Medical Officer, attached to Primary Health Center Bidkin, who had initially examined deceased Gorakh and Machhindra and had certified that Gorakh was in a position to give statement and in whose presence statement of injured Gorakh was recorded by PW-9 PSI Tulsiram Dhumal (Exhibit-66) on the basis of which the First Information Report was registered. Prosecution Witness No.10, Vishnu Pandurang Kolge, was a Panch witness to the seizure Panchanama of clothes on the person of deceased Machhindra (Exhibit-70), who identified the clothes of Machhindra as Articles No.9, and 11.
Prosecution Witness No.11 Baban Nana Thange, was a Pancha Witness to the seizure Panchanama of seizure of clothes of accused No.2 Kayyum, Articles 1 and 2 (Exhibit-28) so also seizure Panchanama of clothes on the person of accused No.3 Firoz ::: Downloaded on - 09/06/2013 16:23:43 ::: 12 (Exhibit-29). Prosecution Witness No.12, Uddhav Ramkrishna Kokate, was a Pancha witness to the seizure Panchanama of clothes on the person of deceased Gorakh, under Articles 5, 6, and 7 on 30.01.2006 (Exhibit-73). PW-13 Dr.Bhusale, who conducted Post Mortem on the dead body of deceased Gorakh and Machhindra and prepared report (Exhibit-78 and 79) identified the said reports. PW-14 Sampat Sakharam Shinde, who registered Crime No.9/2006 on 29.01.2006 and investigated the matter also deposed about the conduct of the investigation. PW-15, Dr.Santosh Naikwade, who was attached to Ghati Hospital, Aurangabad as Casualty Medical Officer on 29.01.2006 and had initially examined Gorakh and Machhindra and had made entries in the MLC register about examination of Gorakh and Machhindra in the afternoon of 29.01.2006 deposed about the same before the Court.
6. After recording of the evidence of the prosecution witnesses, trial Court recorded the statements of the accused persons. Their defence was of total denial. Thereafter, after hearing rival submissions, the trial court acquitted original accused No.6, 7, 8, 10 and 12 of all the charges and convicted accused No.1 to 5, 9 and 11 and sentenced accordingly.
7. The accused who were convicted so also the State questioned the legality of the said judgment in the present appeals.
8. It appears that the trial court based foundation for ::: Downloaded on - 09/06/2013 16:23:43 ::: 13 conviction on the medical evidence as well as on evidence of eye witness Mangala PW-7 and also the dying declaration of Gorakh, recorded by PW-7 PSI Dhumal.
9. With the assistance of learned counsel for the parties we have perused the entire record and proceedings. In the light of that, it is necessary to re-appreciate the evidence of the material witnesses.
10. It transpired from the evidence of PW-7 Mangala Machhindra Chaudhari, wife of deceased Machhindra that on the day of the incident, Gorakh was giving water to the standing wheat crop in their own field while she, along with her husband-deceased Machhindra, was working in the land of Shamrao Shinde. Accused No.1 Karim and his four sons, accused No.2 to 4 and 11, along with female folks, were present in their field. They assaulted Gorakh on the count that the common boundary was damaged.
On hearing shouts of Gorakh, she, along with her husband-
deceased Machhindra, rushed to the spot. The accused were assaulting Gorakh with axe and sticks and was abusing him in filthy language. When Machhindra tried to intervene, he was also assaulted by means of sticks and blunt edge of axe. Gorakh was assaulted all over his body, head and legs and Machhindra was assaulted on his face, neck and back. PW-7 Mangala was also assaulted by female members with fists and kick blows. According to Mangala, accused No.11, Noor, accused No.4 Ayyub and accused ::: Downloaded on - 09/06/2013 16:23:43 ::: 14 No.6 Farooq were having axes in their hands while accused No.1, Karim, accused No.2 Kayyum, accused No.7 Taher, accused No. Aziz and accused No.12 Osman, were holding sticks in their hands.
Due to the assault, PW-7 Mangala as well as Gorakh and Machhindra collapsed in the field, thereafter all the accused flee from the spot and after sometime police vehicle came in the field, picked up the injured and took them to the Primary Health Center, Bidkin from where they were taken to Government Medical College Hospital, Aurangabad. According to her all the injured were admitted in Ghati hospital where on the next day Gorakh succumbed to the injuries while Machhindra expired after four days thereafter.
She was cross examined at length by the defense counsel in which certain facts were brought on record like land of the accused was on lower level whereas their land was on higher level.
According to her, she was at the distance of about 10 feet at the relevant time. In their own field, there was standing wheat crop while in the field of Shamrao Shinde, where she and Machhindra were working, was also a standing crop of wheat. According to her, the place, where Gorakh was assaulted, was at a audible and visible distance from the field, where she and Machhindra were working. She has also stated in her cross examination that all of them were assaulted in their field where Gorakh was giving water to the standing wheat crop. She volunteered that after the assault, the assailants took them in their field. She has specifically stated ::: Downloaded on - 09/06/2013 16:23:43 ::: 15 that she is not familiar with the names of all the accused, however she knew them by face. According to her, when her statement was recorded, all the accused were present in the police station. Her statement was recorded by the police prior to demise of her husband Machhindra. She further admitted in the cross-
examination that earlier she was not aware about the names of all the accused and even till recording of her cross-examination she was not knowing names of all the accused. She has specifically stated in her cross-examination that she was beaten by sticks and axe and the injuries sustained by her were shown to the Medical Officer at Bidkin and accordingly she was referred to Ghati Hospital, Aurangabad for further treatment. She had also shown injuries sustained by her to the medical officer in Ghati Hospital, Aurangabad. She was provided medical treatment at Primary Health Center, Bidkin and even at Ghati Hospital. Thereafter she was discharged from Ghati Hospital on the next day. She denied the suggestion that on the date of the incident Gorakh and Machhindra were allowed to go after their initial medical examination. She has further stated in her cross-examination that before the injured were brought at Primary Health Center, Bidkin, they were taken to Bidkin police station. According to her, she had not narrated anything about the incident to the police officials, who picked up the injured to Bidkin Primary Health Center, in a police jeep. The evidential value of the version of this alleged eye witness will be discussed in later part of the judgment.
::: Downloaded on - 09/06/2013 16:23:44 ::: 1611. Evidence of PW-8 Dr.Doiphode is material on two aspects. After the alleged incident, the injured were immediately taken to Primary Health Center, Bidkin and in his presence and after he certified, PSI Dhumal (PW-9) recorded statement of Gorakh. It transpired in the evidence of this witness that on 29.01.2006, he was present in Primary Health Center, Bidkin, as Medical Officer. One police constable, V.V.Sali brought injured Gorakh and Machhindra for medical examination and treatment in Primary Health Center and on his inquiry about the injuries, history of assault was given. He noticed head injury and injuries on the legs during the examination of Gorakh and bleeding injuries on back and legs were noticed during the examination of Machhindra. Considering the nature of the injuries and the condition of the injured, he advised to shift them for further treatment to Ghati Hospital, Aurangabad. A letter of request (Exhibit-68) was given to him by PW-9 PSI Dhumal to certify as to whether Gorakh was in a condition to give statement or not. On the said letter he had put an endorsement that Gorakh was conscious and fit for giving statement. In his presence, statement of Gorakh was recorded, as given by him, by PW-8 PSI Dhumal.
According to him, after statement of Gorakh was recorded it was read over to him, which he admitted to be true and correct and thereafter in his presence Gorakh put his thumb impression on the said statement. Witness identified Exhibit-66, as the statement of Gorakh, which was treated as FIR in this case.
::: Downloaded on - 09/06/2013 16:23:44 ::: 17In his cross examination, this witness has stated that he has made entries in the MLC register in respect of examination of Gorakh and Machhindra. At the time of his examination in the Court, it appears that, he had brought the MLC register. He has specifically stated that he did not maintain any other case papers other than the MLC register in respect of the medical examination of the injured. At about 12.45 noon, he had referred the injured to Ghati Hospital, Aurangabad. On perusal of the injuries in the MLC register, he has stated that he had not examined injured Mangala on that day. He has specifically admitted that Gorakh and Machhindra were conscious when they were brought to the Primary Health Center, Bidkin. There was no injury to the neck of Machhindra. No evidence of attempt of throttling or strangulation was noticed by him on the neck of injured Machhindra. The injuries noticed by him on the person of both the injured have been mentioned in the MLC register. This Court has taken a note of the fact that surprisingly, though it appears from the record and proceedings that when evidence of this witness was being recorded, MLC register was brought by him, however neither the Court nor prosecution or defense has taken care to produce the said MLC register in the evidence and got the same exhibited, after the injuries mentioned therein were proved through this witness.
Evidential value of the version of this witness will be discussed in the later part of the judgment.
12. It transpired from the evidence of PW-9 PSI Dhumal ::: Downloaded on - 09/06/2013 16:23:44 ::: 18 that on 29th January 2006, he was working as PSI, Bidkin Police Station and on receipt of information he had visited the spot on the directions of his superiors and picked up the injured Gorakh, Machhindra and Mangala from the spot, initially to the police station and subsequently to Primary Health Center, Bidkin.
According to this witness, Gorakh and Machhindra had sustained multiple injuries. He has also stated that Medical Officer Dr.Doiphode had examined both the injured. On the request letter (Exhibit-68) given by him, an endorsement was made by Dr.Doiphode that injured Gorakh was conscious and was in a position to give statement. Thereafter, after making preliminary inquiry, he recorded the statement of Gorakh (Exhibit-66).
Dr.Doiphode was present at the time of recording of statement of Gorakh, which was recorded as given by Gorakh. Accordingly, Dr.Doiphode had made an endorsement on the said statement in respect of fitness of Gorakh. On the basis of this statement, offence was registered against the accused at Crime No.9/2006. Further he has stated that the statement (Exhibit-66) was recorded by him, as stated by Gorakh and was taken down by Constable Bighot. He identified the thumb impression of Gorakh on the statement (Exhibit-66) as well as endorsement made by Dr.Doiphode. He has also given details about the statement given by Gorakh in his statement recorded by him. It further transpired from the evidence that during the further investigation, he had assisted Police Inspector Shinde, PW-14, as he had recorded the disclosure statement of accused No.3 Firoz (Exhibit-31), which had ::: Downloaded on - 09/06/2013 16:23:44 ::: 19 resulted in the recovery of axe, which was seized under Panchanama (Exhibit-33). He had also recorded the disclosure statement of accused No.2 Kayyum (Exhibit-32), which resulted in recovery of a stick, which was seized under Panchanama (Exhibit-34). He identified the seized articles, as Articles No.12 and 13 before the trial Court.
It revealed from the cross-examination of this witness that Gorakh had not stated names of all the persons who were party to the assault. He could not get the information after recording the statement of Gorakh, as to who had specifically assaulted Machhindra amongst the accused. Usual suggestions were given to him that he knew the spot from where Articles 12 and 13 were recovered, as he had earlier visited the spot along with the Investigating Officer. He has admitted that the Articles were recovered at the distance of 25 to 30 feet from the place where the injured were lying. It is to be noted that from the cross-
examination of this witness that there was no challenge that the injured were picked up from the spot where they were found lying in injured condition. Effect of the version of this witness will be discussed in the later part of the judgment.
13. Next material witness is PW-13, Dr.Bhusale, who on 30.01.2006 had conducted autopsy on the dead body of deceased Gorakh and had prepared PM notes (Exhibit-78) and on 04.02.2006 had conducted autopsy on the dead body of ::: Downloaded on - 09/06/2013 16:23:44 ::: 20 Machhindra and had prepared PM notes (Exhibit-79). He has stated in the evidence that he noticed the external and internal injures on the dead body of Gorakh -
"i) Sutured would on right temporal region of length 3c.m. horizontally placed.
ii) Sutured would on left temporal region of length 2 cm obliquely placed.
iii) Abrasion of size 3 X 1 cm. just behind the left ear pinna, vrtically placed directed downwards, reddish.
iv) Abrasion on left side of the neck of size 2.5 X 1 cm. Obliquely placed, directed downwards, reddish brown.
v) Contusion over lateral aspect of left arm of size 12 X 8 cm. Multiple contusions present over the back, skin over the contusion is dark brownish in colour swelling present.
vi) Multiple abrasions present over left forearm, both hands and antero lateral aspect of left leg of size varing from 3 X 2 cm to 0.5 X 0.5 cm directed in different directions reddish brown in colour.
vii) Lacerated would at the base of palmer aspect of right thumb of size 2 X 5 cm soft tissue deep.
viii) Lacerated would on shin of left tibia at middle 1/3 of leg of size 2.5 X 1 cm soft tissue deep. Edges of both lacerated woulds are irregular and infiltrated with blood.
ix) Little finger nail of left hand is missing, infiltration standing present.::: Downloaded on - 09/06/2013 16:23:44 ::: 21
x) Swelling present over both hands and left leg. All these injuries were antemortem in nature. I have mentioned the injuries in the diagram attached to postmortem report.
On examination I have noticed following internal injuries.
Sub-galleal contusion seen over right parietal region of size 4 X 3 cm, left temporal region of size 3 X 3 cm left parietal region of size 5 X 3 cm, dark reddish in colour. No evidence of fracture.
Brain injuries - meninges intact, diffuse sub arachnoid haemorrhages seen over both cerebral hemispheres, dark reddish in colour. Intra cerebral blood present in right parietal lobe. Brain matter congested and oedematous."
14. He has specifically stated that the injuries mentioned in column No.19 are corresponding to the injuries No.1 and 2 mentioned in column No.17. According to him, death of Gorakh is caused due to head injury associated with multiple injuries, as a result of assault. He has also opined that the injuries in column No.17 can be caused due to any hard and blunt object and it can be caused due to wooden log from the blunt side of axe. When Articles No.12 and 13 were shown to him, he opined that the injuries found on the person of Gorakh can be caused due to the said Articles. He has also opined that the injuries mentioned in column No.17 and 19 are sufficient to cause death in the ordinary course. Corresponding cross examination about this part of examination in chief finds place in para 10 of the cross ::: Downloaded on - 09/06/2013 16:23:44 ::: 22 examination. This witness was given suggestion in respect of injuries No.1 and 2 that surgical wounds are also necessary in some cases where he volunteered that this was not done in the present case. In the later part he has stated that in case of injury No.1 and 2, if without any internal injury they are simple in nature. Internal injury to brain is possible due to sudden forcible fall, as the case papers disclose that injury No.1 is mentioned at the time of earlier examination at 1.45 p.m. as well as at the time of examination at 6.10 p.m. It is to be noted that even though suggestion was given to this witness that the injuries are possible due to multiple forcible fall, yet this suggestion was not given to the eye witness or to the other witnesses in their cross-examinations, however for the first time, this has been put forth in the cross-
examination of this witness.
While describing external and internal injuries on the body of deceased Machhindra, he has noticed the following injuries-
"i) Abrasion over right eyebrow horizontally placed of 4 X 3 cm dark brownish colour.
ii) Abrasion on the outer canthus at right eye of size 03 X 03 cm dark brown.
Iii) Imprint abrasion over neck horizontally placed on both side of tracheotomy surgically done for treatment of 2 cm, in diameters, and length of this abrasion mark 20 cm, and abrasion mark form supra sternal notch - Abrasion mark from chin cm - Abrasion mark from right mastoid of 6 cm Abrasion mark from left ::: Downloaded on - 09/06/2013 16:23:44 ::: 23 mastoid 5 cm brown in colour
iv) Contusion right side of chest 3 X 3 cm aid clavicular line 7 cm above nipple.
v) Contusion left side of chest horizontally placed 4 X 2 cm mid-clavicular line, 3 cm above nipple.
vi) Abrasion right arm 1 X 1 cm middle 1/3 brownish.
5, Then on internal examination I found
following injuries
sub-galial haematoma over left temporal and left parietal region 10 X 10 X 1 cm, dark red in colour. No evidence of fracture.
Brain - Meninges intact-sub arachnoid haemorrhage present over left temporal and high parietal region-Paticheal haemorrhage present over while mater, brain congested and cedmatous. Thorax - Hematoma over 3rd intercostral space 4 X 4 cm, dark red colour, patechial haemorrhage present below epygolottis and glottic region, contusion present over anterror aspect of right lung involving the parenchyma, on cut section dark red colour fluid cozes. No evidence of injury to the heart.
On dissection of neck - Haemorrhage present below the imprint abrasion, sub-cutaneously contusion present over the strap muscles of neck both sides and no evidence of thyroid or crioid cartilage fracture"
In his evidence he has stated that internal injury mentioned in column No.20 is corresponding to external injury No.3 mentioned in column No.17, except tracheotomy. He has also ::: Downloaded on - 09/06/2013 16:23:44 ::: 24 opined that injury No.3 mentioned in column No.17 is possible due to ligature and the age of the injury was 5 to 7 days. He has opined that the cause of death is due to compression of neck with contusion under the scalp and sub arachnoid haemorrhage on left parieto, temporal lobo. Through this witness prosecution got proved the Postmortem notes (Exhibit-78 and 79).
In his cross-examination PM reports (Exhibit-78 and 79) were referred to him. On the basis of these papers he has admitted that Machhindra was initially examined in Ghati Hospital at 1.50 p.m. or so and had admitted that injury No.3 mentioned in column No.17 was not mentioned therein. Further he has admitted that Gorakh and Machhindra were not treated as indoor patients but after their initial examination they reported again in Ghati hospital at about 6.10 p.m. and at that time this injury was mentioned in diagram form in para 13 of the cross-examination. This witness has admitted that as per record when Machhindra was examined on 2.00 p.m. he had given history of assault about injury to his knee and back, however, not mentioned about the injury on the neck of Machhindra in para 13, the witness has specifically admitted that congestion of venous blood in the brain may occur due to the compression of jugular vain as a result of compression of neck, as found in injury No.3 due to circulation of blood. Eye witness, if any, cannot miss to see the cause of injury No.3.
15. Last but not the lest important witness is PW-15, ::: Downloaded on - 09/06/2013 16:23:44 ::: 25 Dr.Naikwade. It transpired from his evidence that on 29.01.2006, he was attached to Government Medical College Hospital, Aurangabad as Casualty Medical Officer and was on duty till 2.00 pm. At about 1.45 p.m. one Sanjay Lalwani had brought Gorakh and Machhindra in Ghati Hospital with the history of assault at 10.30 a.m. Gorakh was treated at 1.45 p.m. and Machhindra was treated on 1.50 p.m. and accordingly entries were made in MLC register. In his evidence, prosecution has tendered and got proved entries in the MLC register (Exhibit-116).
In the cross-examination of this witness, it is brought on record that at the time of examination of Gorakh at 1.45 p.m. one head injury and traumatic injury over his both the legs were noticed and was mentioned in the MLC register. At that time Gorakh was conscious. As per record, Gorakh was not admitted as indoor patient, but was allowed to go after giving preliminary medical treatment. However, again he had reported in the Ghati Hospital at 6.00 p.m. and was admitted in Ward No.18.
Machhindra was examined by him at 1.50 p.m. He was also not admitted in the hospital as indoor patient, but was allowed to go after preliminary treatment, however he had also reported in the evening on the same day in Ghati Hospital and relevant entries are taken in MLC register. This witness has not produced the referral register, referred by him in his cross-examination. If any patient leaves hospital after examination by CMO and reports after some time, he cannot be directly admitted in the ward, but he gets ::: Downloaded on - 09/06/2013 16:23:44 ::: 26 admitted through CMO. Two registers are maintained in the hospital known as MLC register and referral register. In case a patient leaves hospital and again reports in the hospital, in such cases, entry is taken in the referral register. One more fact is brought on record in the evidence of this witness that he has not produced the referral register, referred in his cross-examination.
He has also faced inquiry conducted by 5 members about examination of two injured in the present case.
16. In the light of the evidence of these witnesses, heard learned counsel for the appellants-accused and learned APP for the State.
17. Learned counsel for appellants-accused raised a question as to whether the appellants-accused can be held responsible for the death of Gorakh and Machhindra, as after they were examined in the Primary Health Center, Bidkin, they were referred to the Government Medical College Hospital, Aurangabad and PW-8, who examined the injured, though refers the entries about their medical examination in the MLC register, yet the said register was not tendered by him in his evidence. At the same time, question is raised about the creditworthiness or genuineness of the statement (Exhibit-66). According to learned counsel for appellants-accused, the Constable, who had taken down the said statement was not examined by the prosecution. It is also tried to urge across the bar that in absence of the MLC register maintained ::: Downloaded on - 09/06/2013 16:23:44 ::: 27 in the Primary Health Center, Bidkin, it is not safe to rely on the testimony of PW-8, Dr.Doiphode about the condition of Gorakh in which he had given the statement and as to whether he was in a fit mental condition to give the said statement. It is also urged that it is also not safe to rely on the evidence of alleged eye witness Mangala PW-7 in the background that there is old dispute amongst the parties over the boundaries of their fields and in absence of any injury found on the person of Mangala, her evidence does not appear to be genuine and hence it is urged not to accept the same.
The last and most important point was raised that after the injured were admitted in the Government Medical College Hospital, Aurangabad around 1.45 p.m. to 1.50 p.m. where they were examined, they had left the hospital and returned in the evening and absolutely no explanation has come before the Court where they were during the said period. In the premise, according to learned counsel for the appellants-accused possibility of happening of some untoward incident which might had aggravated the injuries sustained by the deceased, cannot be ruled out. It is also urged that it has come on record that the complainant as well as the appellants-accused are agriculturists and agricultural operations were going on in their field and hence presence of agricultural equipments, which are seized at the instance of accused, is quite natural and hence the same cannot be termed as deadly weapons but they are in fact agricultural equipments and therefore, it cannot be inferred that the appellants were the members of the unlawful assembly armed with deadly weapons in ::: Downloaded on - 09/06/2013 16:23:44 ::: 28 furtherance of their common intention to commit murder of Gorakh and Machhindra. It is also urged that at the relevant time, Gorakh and Machhindra were not armed and if there was common intention to kill or murder, then the injured as well as the alleged eye witness might not have been. In the premise, learned counsel for the appellants-accused, urged to allow the appeals and acquit all the appellants-accused or to reduce the sentence, which they have already undergone, by altering the section for which they are convicted.
18. While replying to the appeal filed by the State, it is urged that considering the scenario, which is brought on record by way of Panchanama (Exhibit-49), possibility cannot be ruled out that some scuffle might had taken place between two groups, as the place of alleged incident shown in Panchanama (Exhibit-49) is the agricultural land of the accused and not of the deceased. In the premise, it is contended that there is no force or merit in the State appeal and therefore, it is requested to dismiss the same.
19. In support of the contention not to accept the dying declaration of deceased Gorakh, reliance is placed by the appellants-accused on the ruling of the Apex Court in the matter of "Govind Narain V/s State of Rajasthan" reported in AIR 1993 SC 2475, and judgment of the Division Bench of this Court in the matter of "Ganesh Pundalik Karankar V/s State of Maharashtra" reported in 2005 ALL MR (Cri) 1001, to which one ::: Downloaded on - 09/06/2013 16:23:44 ::: 29 of us, (P.V.Hardas, J) was a party. We are not in agreement with the learned counsel for the appellants-accused. The Apex Court, in para 14 of the said judgment has observed that as there were multiple dying declarations, non examination of the scribe, who recorded the dying declaration is vital to the case of the prosecution and hence not accepted the dying declaration on which reliance was placed by the prosecution. The Division Bench, in the above referred judgment, wherein the person who had interpreted the statement of the deceased was not examined, has held that the deceased had given the statement in Hindi language and it was translated by one constable in Marathi and then was recorded in Marathi, the contemporaneous record in respect of translation done by the police constable was not produced before the Court and hence the dying declaration was not accepted. The test, how the dying declaration is proved, is based on the ratio laid down in the judgments of this Court in the matters of "Deorao Sonbaji Bhalerao V/s State of Maharashtra" reported in 2008 ALL MR (Cri) 1921, "Jivan Tulsiram Dhavali V/s State of Maharashtra" reported in 2008 ALL MR (Cri) 2018, "Laxmibai Maruti Satpute V/s State of Maharashtra" reported in 2010 ALL MR (Cri) 182 and "Faizal Mohammed s/o Abdulla Banaim V/s State of Maharashtra" reported in 2010 ALL MR (Cri) 2241. Out of the said four judgments, to the last two judgments, one of us, (P.V.Hardas, J) was the party. In all these judgments, the Division Bench of this Court has observed that to prove the dying ::: Downloaded on - 09/06/2013 16:23:44 ::: 30 declaration, the person who has recorded the same has to ascertain that the person whose dying declaration to be recorded was in a fit state of mind to give the statement, which has to be certified and endorsed by the Medical Officer concerned. Thereafter the person who records the statement and who is examined before the Court, has to depose the words in which the declarant has made the statement. In the case in hand, by virtue of the evidence of PW-8, Dr.Doiphode and PW-9 PSI Dhumal, the facts have came on record that after Gorakh and Machhindra were taken to Primary Health Center, Bidkin, from the police station, Bidkin, a letter was addressed to Medical Officer, Primary Health Center, Bidkin to certify as to whether the injured is in a condition to give statement or not. Accordingly, it was certified by PW-8 Dr.Doiphode that Gorakh was conscious and was in a position to give the statement. In his substantive evidence before the trial Court, Dr.Doiphode, PW-8, has deposed that Gorakh and Machhindra were brought in Primary Health Center, Bidkin by constable Sali and at that time PSI Dhumal, PW-9 was present and on his request, he had endorsed that injured Gorakh was in a fit condition to give statement. Thereafter in his presence PW-9 PSI Dhumal had recorded the statement of Gorakh, which was read over to Gorakh and he had admitted the same to be true and correct and thereafter only he certified the same. It transpired from the evidence of PW-9 Dhumal, that on his dictation the statement was taken down by a constable, as stated by Gorakh, which he dictated as stated to him and after statement was recorded it was ::: Downloaded on - 09/06/2013 16:23:44 ::: 31 read over to Gorakh, which he had admitted to be true and correct and thereafter Gorakh had put his thumb impression. In the substantive statement of PW-9, PSI Dhumal, he has deposed about the statement given by Gorakh as it is, In the premise, in our opinion all the requisite compliance to prove the dying declaration, is made by the prosecution. Therefore, there is no scope to infer that the dying declaration of Gorakh suffers from any legal lacuna to be read in evidence.
20. While opposing the submissions of learned counsel for the appellants-accused, learned APP vehemently urged for enhancement of the punishment of the accused and requested to convict the accused for an offence punishable u/s 302 r/w 149 of the Indian Penal Code. It is urged that PW-7 Mangala is a natural witness and her testimony to be accepted as it is. It is also urged that though it transpired in the evidence of PW-7 that no visible injury was notice on her person then no medical certificate is required to prove the assault on PW-7. It is also contended that it cannot be inferred that the injuries found on the person of deceased Gorakh were due to multiple fall, as no suggestion was given to the eye witness to that effect and false plea of alibi is raised. According to learned APP, recovery of blood stained clothes and weapons at the instance of appellants-accused lead to draw inference that the appellants are guilty of the offence for which they are charged and not punished in accordance with law and hence it is prayed to dismiss the appeals of the appellants-accused ::: Downloaded on - 09/06/2013 16:23:44 ::: 32 and to allow the appeal filed by the State and further requested to punish the accused for an offence punishable u/s 302 r/w 149 of the Indian Penal Code.
21. Before discussing the medical evidence, we may like to deal with the evidence of the alleged eye witness, PW-7 Mangala.
We are of the considered view that even though the prosecution has projected her as an eye witness, yet we are afraid to accept her as eye witness and that she has honestly given the account of the occurrence of the alleged incident.
a) It transpired from her evidence that on the day of the incident, Gorakh was working in his own land while she and Machhindra were working in the land of Shamrao Shinde, which was taken on share basis for cultivation. According to PW-7 Mangala, the said land is adjacent to their own land, however from the map of the scene of offence annexed with Exhibit-49, it appears otherwise. It also transpired from the evidence of investigating officer that on 2/3 occasions he had to visit the spot where the alleged incident has occurred and he had noticed that there are land of another person in between the spot of incident and the land of Shamrao Shinde.
b) It also transpired from the evidence of PW-6 and PW-14 and supported by the spot Panchanama that there was standing wheat crop in the land of Shamrao Shinde as well as in the land ::: Downloaded on - 09/06/2013 16:23:44 ::: 33 owned by the deceased where the alleged incident has occurred.
The days were of harvesting days and there was standing chilly crop in the land of the accused and hence it creates doubt as to whether the place where the incident has occurred, was within the vicinity of Mangala or not.
c) It further transpired in her evidence that at the material time, Gorakh was beaten on his head, face and legs by the accused, which is not supported by the medical evidence.
d) It also transpired from her evidence that Machhindra was assaulted on face, neck and back, however the assault on the neck of the deceased Machhindra is not supported by MO Primary Health Center, Bidkin and CMO Ghati Hospital.
e) According to Mangala, she knew the accused by face and not by their names. When her statement was recorded, according to her, all the accused were present in the police station, however according to the Investigating Officer, her statement was recorded in her house and not in the police station and at the time of recording of her statement, she was not confronted with any of the accused.
f) It is also transpired from the evidence of Mangala that there is well in the field of Shamrao Shinde, however this evidence is also contradicted form the evidence of PW-14 that he did not see ::: Downloaded on - 09/06/2013 16:23:44 ::: 34 any well in the land of Shamrao Shinde
g) In the evidence of Mangala, in her cross examination, she has stated that she had shown the injuries sustained by her to Medical Officer, Primary Health Center, Bidkin as well as to the Casualty Medical Officer, Ghati Hospital, Aurangabad. However, this fact is not supported by the evidence of PW-8 Dr.Doiphode, Medical Officer, Primary Health Center, Bidkin and PW-15, Dr.Bhusale, CMO, Ghati Hospital, Aurangabad. On the contrary, both these witnesses in plain words have admitted in their cross-
examination that the entries in the MLC register indicate that she was not examined at all at these two difference places. Even though PW-14, at the initial stage also deposed that he has also noticed injuries on the person of Mangala and collected medical certificate to that effect from the concerned Medical Officer, yet after verifying the facts recorded in the Crime Report / Station Diary, he has admitted that entire charge sheet nowhere speaks that medical certificate of Mangala was collected. He has further stated that the medical certificate in respect of injuries sustained by Mangala was not even collected after filing of the charge sheet.
22. All these events go to show that Mangala cannot be accepted as eye witness of the alleged incident as alleged by her and deposed in her evidence before the trial court. In the premise, we are of the view that it is not safe to rely on the evidence of PW-7 Mangala. In this respect, it is vehemently urged by learned APP for ::: Downloaded on - 09/06/2013 16:23:44 ::: 35 the State that as it transpired in the evidence of Mangala that she knew the assailants by face and not by name and hence test identification parade was not necessary and in support of this contention, learned APP has also placed reliance on the ruling of the Apex Court in the matter of "State of U.P. V/s Sukhapal Singh" reported in 2009 Cri.L.J. 1556. The Apex Court has observed that as it transpired from the evidence of all the prosecution witnesses that they knew the accused and assailants well then there was no necessity to held the test identification parade to bring on record specific role played by individual, who are not known to the prosecution witnesses. For the reasons recorded in above paragraphs, in our view, the testimony of Mangala, PW-7, cannot be accepted, as the evidence as eyewitness and hence, it is not necessary to deal with the observations of the Apex Court in the ruling cited by the learned APP.
23. Now, we deal with the medical evidence given by three doctors examined on behalf of the prosecution before the trial court to decide as to what is the cause of death of Gorakh and Machhindra. Admittedly, both of them were injured and expired after they were examined at two different places and secondly after their initial admission in the Government Medical College Hospital, Aurangabad in the afternoon of 29.01.2006, they had left the hospital and got admitted in the evening on the same day. In this light, evidence of prosecution witness No.8, Dr.Doiphode shows that at the time of examination of Gorakh, he had noticed that ::: Downloaded on - 09/06/2013 16:23:44 ::: 36 Gorakh had sustained head injuries as well as injuries on his legs and Machhindra had sustained bleeding injury on his back and legs. There is no reference about any injury on the neck of Machhindra. It transpired from the evidence of Dr.Doiphode that around 12.45 p.m. he referred both the injured to Ghati Hospital Aurangabad. Evidence of PW-15, Dr.Santosh Naikwade, who was present in the Ghati Hospital, is that Gorakh and Machhindra came in Ghati Hospital and were examined at 1.45 and 1.50 p.m. respectively. Injuries, which were noticed by PW-8 Dr.Doiphode, were also noticed by PW-15 Dr.Naikwade at the time of examination of both the deceased and accordingly he had noted the same in the MLC register (Exhibit-116). In connection with these injuries, the PM reports of Gorakh and Machhindra, indicate that PW-13, Dr.Bhusale had noticed injury No.1 and 2 and mentioned in column No.17 of the PM report at Exhibit-78 and corresponding injury is mentioned in column No.19, which has resulted into the death of Gorakh. As against this death of Machhindra, on 04.02.2006 is caused due to injury No.3 mentioned in column No. 17 of the PM report (Exhibit-79). It is noticed that this injury on the neck, due to strangulation or compression, was not seen, noticed or complained of before PW-8, Dr.Doiphode, Medical Officer, Primary Health Center, Bidkin or before PW-15, Dr.Naikwade, CMO Ghati Hospital Aurangabad at the time of examination of Machhindra, but it is specifically came on record that for the first time, the injury on the neck was noticed at 6.00 p.m. at the time of admission of Machhindra in Ghati Hospital, ::: Downloaded on - 09/06/2013 16:23:44 ::: 37 Aurangabad. Before considering as to how the injuries occurred / sustained, by Gorakh and Machhindra, it is necessary to consider the statement of Gorakh, recorded by PW-9 PSI Dhumal and treated as dying declaration (Exhibit-66), which play a very vital role.
24. The evidence, which we have discussed above, requires to be construed in the light of the statement of Gorakh (Exhibit-66). We are of the view that the dying declaration of Gorakh is proved by the prosecution beyond reasonable doubt. On bare perusal of the dying declaration of Gorakh (Exhibit-66), it appears that Gorakh had sustained head injury due to the blow given by accused No.3 Firoz, which is injury No.1 and 2 mentioned in column No.17 of the PM notes at Exhibit-78 related with the internal injury mentioned in column No.19 of the PM notes, which resulted in to the death of Gorakh. It is vehemently urged on behalf of the appellants-accused that if it is held that the dying declaration of deceased Gorakh is to be believed then considering the chequered history of dispute between the parties over the boundaries of the land, it has to be held that there was no intention to kill Gorakh but it was an accidental blow. We are not in agreement with these submissions for the simple reason that the spot Panchanama clearly indicates that there was damage to the boundary situated between the lands, the incident occurred at about 10.30 a.m. and nothing has come on record that before Gorakh was assaulted by accused No.3 Firoz with stick, there was ::: Downloaded on - 09/06/2013 16:23:44 ::: 38 exchange of words between them. He has also stated that accused No.4 Ayyub assaulted with axe on the shin on left leg, on writs and palms and accused No.11, Noor assaulted with sticks, accused No. 2 Kayyum assaulted with sticks. There are total 10 injuries found on the person of deceased Gorakh. This fact requires to be considered from two angles. It cannot be disputed that when the appellants - accused, along with others, came in their field, they were carrying sticks, axes and as we have discussed above that they being agriculturists, it was quite natural that they were carrying sticks and axes with them. Even otherwise, these articles are deadly weapons it cannot be said that they have formed unlawful assembly for their common object to commit murder of Gorakh and Machhindra. It is a fact that due to assault by accused No.3, Firoz Gorakh has expired. However, at the same time, assault on Machhindra has not directly resulted into his death. In the premise, the agriculturists carrying agricultural equipments in their hands, in a spur of moment change their minds with an object to to cause bodily injury to the deceased, but it cannot be inferred that it was an unlawful assembly with common object to commit murder of Gorakh and Machhindra. It can be held that they have formed unlawful assembly at the spur of moment to cause bodily injury to Gorakh and Machhindra in which due to hit of stick by accused No.3 Firoz, on Gorakh, he died. In the premise, case of accused No.3 Firoz covers under "thirdly" to section 300 of the Indian Penal Code, as observed by the Apex Court in the matter "Virsa Singh V/s State of Punjab" reported in AIR 1958 ::: Downloaded on - 09/06/2013 16:23:44 ::: 39 SC 465.
"Penal Code (1860) S.300, thirdly - Applicability -
Essentials to be proved - Inference of intention from nature of injury - when can be made - effect of seriousness or otherwise of injury.
The question whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question."
25. However, so far as accused No.4-Ayyub, accused No.11- Noor and accused No.2, Kayyum are concerned, it cannot be termed that though they are the members of unlawful assembly, yet for common object to commit murder, but common object to cause injury to Machhindra.
26. Learned APP has placed reliance on the ruling of the Apex Court in the matter of "Mahmood V/s State of UP"
reported in 2008 Cri.L.J.696. The Apex Court has observed in the said judgment that once it is proved that the accused are members of the unlawful assembly and their membership is established, then the prosecution need not establish any specific overtact of any of the accused for fastening liability with the aid of section 149 of the Indian Penal Code. In the present case, we have to take note of the fact that though we have held that there was ::: Downloaded on - 09/06/2013 16:23:44 ::: 40 unlawful assembly of the appellants-accused, yet we have also observed that the common object of the said unlawful assembly was not to commit murder of Gorakh and Machhindra, but was to cause hurt to them. In the premise, so far as accused No.4 Ayyub, accused No.11-Noor and accused No.2, Kayyum are concerned, their case is covered u/s 324 r/w 149 of the Indian Penal Code.
27. Statement of the deceased at Exhibit-66 does not implicate or attribute any specific role of the accused who are acquitted by the trial court. Admittedly, the State has not preferred any appeal against the accused, who are acquitted by the trial court. However, the State has preferred appeal only for the enhancement of the punishment of the accused and for convicting them u/s 302 r/w section 149 of the Indian Penal Code.
28. On perusal of the statement at Exhibit-66 as well as other available evidence, we do not find that other than presence there is any overtact at the hands of accused No.1-Karim, accused No.5-Shamabee and accused No.9, Shakilibee. In the premise, in our view, no offence is made out against these accused at all.
29. In the premise, we propose to pass the following order.
30. The appeal No.230/2008 is partly allowed. The conviction of original accused No.4-Sk.Ayyub Sk.Karim, for an offence punishable u/s 304 Part I r/w 149 of the Indian Penal Code and sentence of RI for years and to pay a fine of Rs.3000/-, ::: Downloaded on - 09/06/2013 16:23:44 ::: 41 is hereby set aside and instead, accused No.4-Sk.Ayyub Sk.Karim stands convicted for an offence punishable u/s 324 r/w 149 of the Indian Penal Code and is sentenced to imprisonment already undergone by him. The sentence of fine of Rs.3000/-, with default sentence, remains unaltered. Similarly, conviction of accused No.4 for an offence punishable u/s 147 of the Indian Penal Code and u/s 148 of the Indian Penal Code and the sentence, of Rigorous Imprisonment for one year respectively, remains unaltered. The substantive sentence of imprisonment to run concurrently. Since the accused No.4-Sk.Ayyub Sk.Karim has already undergone the sentence, he be released forthwith, if not wanted in any other case.
Appeal filed by accused No.11-Sk.Noor Sk.Karim is also partly allowed and conviction for an offence punishable u/s 304 Part I r/w 149 of the Indian Penal Code and sentence of Rigorous Imprisonment for 8 years, is hereby set aside and instead accused No.11-Sk.Noor Sk.Karim is convicted for an offence punishable u/s 324 r/w 149 of the Indian Penal Code and is sentenced to the period of imprisonment already undergone by accused No.11. The sentence of fine remains unaltered. Similarly, conviction for an offence punishable u/s 147 r/w section 149 of the Indian Penal Code and sentence of one year, is confirmed. Since accused No.11 has already undergone the sentence of imprisonment imposed on him, he be released forthwith, if not wanted in any other case.
31. The appeal No.231/2008 is partly allowed. The ::: Downloaded on - 09/06/2013 16:23:44 ::: 42 conviction of original accused No.2-Sk.Kayyum Sk.Karim, for an offence punishable u/s 304 Part I r/w 149 of the Indian Penal Code and sentence of RI for 8 years and to pay a fine of Rs.3000/-, is hereby set aside and instead, accused No.2-Sk.Kayyum Sk.Karim stands convicted for an offence punishable u/s 324 r/w 149 of the Indian Penal Code and is sentenced to imprisonment already undergone by him. The sentence of fine of Rs.3000/-, with default sentence, remains unaltered. Similarly, conviction of accused No.2 for an offence punishable u/s 147 of the Indian Penal Code is confirmed. Since accused No.2 has already undergone the sentence of imprisonment imposed on him, he be released forthwith, if not wanted in any other case.
Conviction and sentence of original accused No.3 Sk.Feroz Sk Karim, for an offence punishable u/s 304 Part I r/w 149 of the Indian Penal Code and sentence of Rigorous Imprisonment for 8 years, is hereby set aside and he is convicted and sentenced as per the order passed in Criminal Appeal No.264/2008. His conviction and sentence for an offence punishable u/s 147 of the Indian Penal Code is confirmed. The substantive sentence to run concurrently.
32. The appeal No.482/2007 is allowed. The conviction and sentence of original accused No.1 Sk.Karim Sk.Gafoor, original accused No.5 Shamabi w/o Sk.Feroz and original accused No.9 Shakila bee w/o Sk.Ajij is hereby quashed and set aside and they are acquitted of the offences with which they were charged. The ::: Downloaded on - 09/06/2013 16:23:44 ::: 43 amount of fine, if paid by the accused, be refunded to them. Their bail bonds stand cancelled.
33. The appeal No.264/2008 is partly allowed. The acquittal of original accused No.3 for an offence punishable u/s 302 r/w 149 of the Indian Penal Code is set aside and original accused No.3 Sk.Feroz Sk.Karim is convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.3000/-, in default of which the accused No.3 Sk.Feroz shall undergo further Rigorous Imprisonment for one month. The substantive sentence to run concurrently. Appeal as against the other accused stand dismissed.
[A.V.POTDAR, J.] [P.V.HARDAS, J.]
drp/B/criapel230-08
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