Bombay High Court
Babu Bhika Jadhav vs State Of Maharashtra on 14 August, 1996
Equivalent citations: 1996CRILJ3952
Author: Vishnu Sahai
Bench: S.S. Parkar, Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. The appellant aggrieved by the judgment and order dated 7-5-83 passed by the Additional Sessions Judge, Nashik in Sessions Case No. 109 of 1982 convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 500/- in default to suffer R.I. for three months under S. 302, IPC has come up in appeal before us.
2. Briefly stated the prosecution case runs as under :-
The informant Sitabai Trimbak Bahirat PW 11 was the wife of the deceased. PW 15 Punjabai was her daughter. PW 14 Indubai and PW 16 Drupadabai were her nieces, being the daughters of Nivrutti, the real brother of the deceased. It is alleged that there was some litigation in respect of land between the appellant and the deceased. On the date of the incident i.e. on 17th May 1982 at about 8-8.30 p.m. the deceased Trimbak left for the house of one Damu Bhika PW 17. About half an hour to one hour later Indubai, Punjabai and Drupadabai heard cries of Trimbak 'run, run'. Thereupon they ran and in front of the house of the appellant, which was situate very near their own house, they saw the appellant and six acquitted accused viz. Bhausaheb Babu Jadhav, Eknath Bhika Jadhav, Ramesh Eknath Jadhav, Sada Mahadu Ghule, Gangadhar Rambhau Gurule and Sada Eklaharekar assaulting Trimbak with sticks. The appellant and others also assaulted them. They killed Trimbak on the spot. Immediately after the incident Indubai ran towards the house of Yeshwant Patil where Sitabai PW 11, the wife of the deceased had gone. It is alleged that she had gone there on account of Yeshwant Patil's death. At a distance of about 50 feet from Yeshwant Patil's house she met Sitabai and informed her about the death of the deceased. Thereafter along with Sitabai she came to the place of the incident. There Sitabai discovered that her husband Trimbak was dead. One Popat Bahirat was at that Place. Seeing the corpse of the deceased, Sitabai became unconscious and fell down sustaining a head injury in that process.
3. The FIR of the incident was lodged by Sitabai Bahirat at Police Station Wai on 18-5-1982 at 7-10 a.m. A case on the basis of the FIR was registered as C.R. No. 35 of 1982 by PSI Vishram Patil.
4. After recording the FIR the same day at about 9 a.m. PSI Patil left for the place of the place of the incident, where he prepared the inquest panchanama in respect of the corpse (Exh.20). At 12-25 in the noon he prepared the panchanama of the scene of offence. He seized the samples of blood mixed with earth, plain earth and broken pieces of bangles from the place of the incident. The same day he arrested the appellant and some of the acquitted co-accused persons. On 19-5-1982 the appellant made a disclosure that he could get the weapon of assault viz. sticks recovered. Consequently on the information furnished by the appellant at his pointing under a panchanama (Exh. 29) the appellant produced some sticks from a heap of fodder inside the house. However, we may straightway mention that we are not inclined to place any significance to the said recovery because there is no evidence that there was blood on the sticks and it is common knowledge that in every house hold sticks are found.
The same day i.e. 19-5-1982 PSI Patil seized the blood stained saree and blouse of Punjabai under a panchanama. He sent the recovered articles which had blood on them to the chemical analyst. Finally after completing the investigation on 17-8-1982 he submitted the charge-sheet against the appellant and the acquitted accused.
5. Going backwards the injuries of Indubai and Punjabai were medically examined on 18-5-82 by Dr. Dilip Vaidya PW 13 of Civil Hospital, Nashik. On the person of Indubai he found the following injuries :-
(1) Tenderness over right thigh lateral aspect.
(2) Tenderness over right lumber region.
On the person of Punjabai the doctor found the following injuries :-
(1) Contused lacerated wound, left side of fore-head (1/4" X 1/4") skin-deep.
(2) Abrasion over right knee, (1/4" X 1/4".) (3) Tenderness over right buttock.
(4) Abrasion medical aspect of lower right fore-arm, (1 "X 1/4") In the opinion of the doctor the injuries of both the victims were inflicted within 24 hours and were attributable to a hard and blunt object.
The injuries of Sitabai were medically examined on 20-5-82 by Dr. Kapote PW 1. On her period he found one contusion on back on the midline 1/2" long. It was superficial in nature and was more than 24 hours old.
It may also be mentioned that the said doctor had medically examined the appellant on 18-5-1982 and had found on his person the following injuries :-
(1) Swelling on right parietal region, 1" long 1/2" width.
(2) Swelling on right lower rib.
The post-mortem examination of the corpse of Trimbak Bahirat was conducted on 18-5-82 between 5.30 to 6 p.m. by Dr. Dilip Vaidya PW 13. He found following ante-mortem injuries on the person of the deceased :-
(1) Contused lacerated wound vertex of the scalp (1" X 1/4") muscle deep.
(2) Contused wound on the forehead 1"X 1/4" skin deep.
(3) Swelling right dorsum of the hand.
(4) Fracture lower end of tibia fibula right leg.
(5) Contused lacerated would left arm, 1/4" X 1/8" muscle deep.
(6) Fracture radius and ulna, left shaft.
(7) Linear contusion left thigh, 2" X 1/4" and 2" X 1/4".
(8) Contused lacerated wound right scapular region 1/4" X 1/4" muscle deep.
(9) Linear contusion left knee 1" X 1/4" and (1" X 1/8".
(10) Contusion right thigh.
(11) Contused lacerated wound between 1st and 2nd toe of right feet. 1/4" X 1/8".
(12) Linear contusions, seven in number, over back ranging from 1/2" to 7" in length and 1/8" to 1/4" in breadth.
On internal examination Dr. Vaidya found superficial laceration of lower lobe of left lung. He also found fracture of right tibia, right fibula, left radius and ulna and laceration of left lung. In the opinion of Dr. Vaidya the deceased died on account of shock and haemorrhage due to the said fractures coupled with laceration of left lung.
Dr. Vaidya also opined that the external and internal injuries sustained by the deceased were cumulatively sufficient in the ordinary course of nature to cause death.
6. The case was committed to the Court of Sessions in the usual manner. In the trial Court the appellant and others were charged under Sections 147 IPC, 148 IPC and 302 IPC read with 149 IPC. There was an alternative charge also under Section 302 read with 34 IPC. To the said charges they pleaded not guilty and claimed to be tried. In the trial Court apart from tendering and proving some documentary evidence the prosecution in all examined four eye witnesses viz. Indubai, Punjabai, Drupadabi and Damu Bhika Jadhav, PWs 14, 15, 16 and 17 respectively. The learned trial Judge believed the evidence vis-a-vis the appellant. Since Damu Bhika Jadhav had not named the co-accused persons he gave them the benefit of doubt. The finding recorded by him is that the said co-accused persons may or my not have been there.
Hence this appeal.
7. We have heard Mr. B. G. Vaidya along with Mr. A. A. Irani for the appellant and Mr. V. T. Tulpule, Public Prosecutor for the respondent. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statement of the appellant recorded under Section 313 Cr.P.C.; and the impugned judgment. After giving our anxious consideration to the matter we are of the opinion that this appeal deserves to be partly allowed inasmuch as in our judgment the conviction of the appellant under Section 302 IPC simplicitor is not sustainable and instead he deserves to be convicted under Section 323 IPC.
8. The first question in this appeal is whether there is credible evidence establishing the involvement of the appellant in the instant crime ? Our answer to the said question is in the affirmative. In this case in all four eye-witnesses were examined by the prosecution viz. Indubai, Punjabai, Drupadabai and Damu Bhika Jadhav PWs. 14, 15, 16 and 17 respectively. Out of them Indubai and Punjabai received injuries during the course of the incident which were medically examined by Dr. Vaidya PW 13. Drupadabai also received injuries but it appears that they were not medically examined. Sitabai although not an eye-witness, also received injuries but they were not inflicted on her during the course of the incident but resulted from the circumstance of her banging her head on the ground on finding her husband Trimbak to be dead.
9. The crucial question would be whether the evidence of Indubai, Punjabai and Drupadabai inspires confidence or not. Our answer to the said question is in the affirmative. The case of the prosecution is that at the time of the incident the said witnesses were at their house which is in the immediate proximity of the place of the incident. At the time of incident they heard the cries of Trimbak. On the same they rushed to the place of the incident. There they were assaulted by the appellant and the acquitted accused persons. When the claim of these witnesses of having seen the incident is tested in the light of the close proximity of their house from the place of the incident and the number of the injuries sustained by the deceased, which were 12 in all, we find it extremely probable to believe them that they reached in time to see the assault of the deceased and having reached the place of the incident they were also assaulted.
Again the version given by the injured witnesses is corroborated by the blunt weapon injuries received by Indubai and Punjabai which have been detailed in the earlier part of our judgment. One of the injuries sustained by Punjabai was contused lacerated wound on the left side of her head and we are not inclined to believe that she would have consented to such an injury being manufactured on her person. Experience shows that people do not get head injuries manufactured because in that process they can get more than what they bargain for.
The statement of the injured witnesses that the incident took place in front of the house of the appellant is corroborated by the circumstances that from there PSI Patil recovered blood stained earth. The place of incident is also established by the evidence of Sitabai PW 11 who reached there on receiving information from Indubai PW 14. She also states that at the said place the corpse of her husband was lying.
10. In our view the evidence of the injured witnesses inspires implicit confidence and can be a very safe basis for concluding the involvement of the appellant in the instant crime.
11. We may also mention that the defence of the appellant appears to us to be a tissue of lies. The defence of the appellant is found mentioned in response to his answer to Question No. 34 of his statement under Section 313 Cr.P.C. The said answer is that while Trimbak the deceased was at his house at 10 p.m. the appellant came, kicked the plank of the door of his house. Thereafter he kicked Trimbak's wife and his daughter and in some scuffle which took place between him Trimbak the latter pushed him. This defence version of the incident neither explains the large number of ante-mortem injuries suffered by the deceased nor the injuries of the injured witnesses. The injuries suffered on the side of the appellant point out the hollowness of the defence version. It is true that the burden on the accused to prove his case is not as onerous as that on the prosecution, whereas the latter has to prove his its case beyond reasonable doubt, in terms of Section 101 of the Evidence Act, the former has to only prove its case on a prepondarance of probabilities, as contemplated under Section 105 of the Evidence Act. In our view even that lesser burden has not been discharged by the appellant in the instant case.
12. Having said this we now enter into the marshy area viz. what offence would be made out against the appellant. To our consternation things have been really made difficult for us by the circumstances that not only have the co-accused persons been acquitted vide the impugned judgment but the appellant also has been acquitted under Sections 147, 148, 302 read with 149 IPC and 323 read with 149 IPC (in respect of assault on the injured persons). To our consternation although this was the most appropriate case for preferring an appeal against acquittal as there was the evidence of injured witnesses and the happening of the incident had also been admitted by the appellant in his statement under Section 313 Cr.P.C., though in a different way, the State of Maharashtra has not chosen to file an appeal against the acquittal of the co-accused persons. In other words the acquittal of the co-accused persons has become final. The implications of this don't end here in fact they begin. The implications which arise are that the appellant is the sole persons who remains. For an unlawful assembly and for convictions under Sections 147, 148 and 302 read with 149 IPC the minimum number of persons enjoined by law are five in number. Since the appellant is the sole accused who remains there is no question of unlawful assembly and there is no question of his conviction under Sections 147, 148 and 302 read with 149 IPC and 323 read with 149 IPC.
13. The question is can the conviction of the appellant under Section 302 IPC or for a lesser offence such as that under Section 304 Part I IPC or under Section 304 Part II IPC or under Section 325 IPC be recorded. Our answer to the said question is in the negative. The question of convicting the appellant under Section 302 IPC or 304 Part I and Part II IPC would only arise if it can be established that the fatal blow can be traced to him. This is not the position here. There is no evidence to this effect. Similarly the question of convicting the appellant under Section 325 IPC can arise only if it can be established from the evidence on record that the appellant inflicted one of the grievous injuries sustained by the deceased. Again there is no evidence to warrant such a conclusion.
The distressing situation in which we find ourselves is that in spite of the fact that we feel that the appellant's involvement in the instant crime has been established beyond any shadow of doubt we cannot convict him for any offence beyond 323 IPC. We can certainly convict him for that offence because the evidence which we have accepted is that he was one of those who assaulted the deceased with a stick and the autopsy report shows injuries attributable to a stick on the corpse of the deceased.
14. We are fortified in our view by the decision of the Apex Court Vithal v. State of Maharashtra. In that case, as is apparent from para 3 of the judgment, the High Court had acquitted the accused of the charges under Sections 147, 148, 302 read with 149, 303 read with 149 and 307 read with 149 IPC. There was no appeal by the State and, the Apex Court held that therefore they could only proceed on the hypothesis that Accused A-1 whose conviction u/S. 303 IPC and the sentence of death awarded to him by the trial Court was maintained by the High Court could only be convicted for his individual act. That individual act was delivering a blow on the face and neck of the deceased with an axe. The Apex Court set aside A-1's conviction under Section 303 IPC and instead convicted him under Section 324 IPC.
15. It would be appropriate for us to observe that so far as the involvement of the appellant in the instant crime is concerned he can seek no solace from the acquittal of the co-accused persons because the acquittal, we dare say, on a prima facie examination of the impugned judgment was arrived at in view of the fact that Damu Bhika Jadhav PW 17 did not depose about their participation. He however did speak about the participation of the appellant in the instant crime.
16. As a sequel to the above discussion in our view the appellant should be acquitted under Section 302 IPC and deserves only to be convicted under Section 323 IPC. The question is what must be the quantum of sentence which should be imposed on him on that count. Taking into consideration the circumstance that the incident took place more than 14 years ago and the appellant has been in jail for sometime as an under trial and convict, we do not think it expedient in the interest of justice to award him a jail sentence. In our view the ends of justice would be squarely satisfied if the appellant is directed to pay a fine of Rs. 1000/- and in default to undergo six months RI.
17. In the result this appeal is partly allowed and partly dismissed. Although we acquit the appellant under Section 302 IPC and set aside his sentence of life imprisonment and of fine of Rs. 500/- in default to undergo three months' RI on the said count, we convict him under Section 323 IPC for the murder of the deceased Trimbak and sentence him to pay a fine of Rs. 1000/- in default to undergo RI for a period of six months. This fine shall be paid by the appellant within a period of six months from today. In case the appellant has paid the fine of Rs. 500/- under Section 302 IPC the same shall stand refunded to him. In the event of appellant not paying the fine of Rs. 1000/- within the stipulated period, he shall be taken into custody to serve out the sentence imposed in default of payment of fine.
Before parting with this judgment we would be failing in our fairness if we do not place on record the extremely tenacious, though fair manner, in which this brief has been argued by the learned counsel for the parties.
We also feel that a copy of our judgment should be sent to Judicial Secretary, the Home Secretary and the Chief Secretary to the Government of Maharashtra, Bombay. We do this with the hope and trust that in future it would be ensured that in grave matters like the present, appeals against acquittal are filed and for the failure to do so justice may not be defeated, as it has been in the instant case. Since legally we had no option but to convict the appellant only under Section 323 IPC, we have done so but without mincing our words, only with a extremely heavy heart.
Issuance of certified copy of the judgment is expedited on payment of necessary charges.
18. Appeal partly allowed.