Bombay High Court
Putlabai Bhimashankar Pattan vs The State Of Maharashtra on 4 May, 2010
Author: B.H.Marlapalle
Bench: B.H.Marlapalle, Mridula Bhatkar
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rng
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.292 OF 1989
Putlabai Bhimashankar Pattan,age 50
years, R/p Plot No.34/3 21 (B)
New Pachha Peth, Solapur ... Appellant
(Orig.Accd no.4)
vs
The State of Maharashtra ... Respondent
ALONGWITH
CRIMINAL APPEAL NO.380 OF 1989
1.Dhondappa Bhimashankar Pattan,
age 25 years,residing at Plot
No.34/3/21 (B New Pachha Peth,'
Solapur.
2.Kallappa Bhimashankar Pattan,
age 22 years, residing at Plot no.
34/3/21(B) New Pachha Peth,Solapur
3. Dariappa Shantappa Hattarsang,age
20 years,residing at Mangrul
Taluka Akkalkot, District Solapur
(Appeal abated as per court's order
dt.22.3.2007 and 8.4.2010 against
Appellant nos. 1 and 2)
.. Appellants
Orig.Accd nos.1
to 3)
vs
State of Maharashtra .. Respondent
..
Mr.B.G.Tangsali Advocate appointed for Appellant in
Appeal No.292.1989
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Mr.B.G.Tangsali and Ms Suvarna A.V.i.b
Mr.V.V.Purvant for Appellant in Appeal No.389/1989
Ms.P.P.Shinde A.P.P.for Respondent-State
Cri.Application No.595/2010 does not survive
CORAM: B.H.MARLAPALLE &
MRS.MRIDULA BHATKAR,JJ
DATE: 4th May,2010
ORAL JUDGMENT (Per B.H.Marlapalle, J)
1. Four accused came to be tried for the offences punishable under sections 302, 326,325, 324.and 323 each read with section 34 of the Indian Penal Code (IPC for short) and section 135 read with section 37 (1) of Bombay Police Act. By his judgment and order dated 12th April,1989 the learned IInd Additional Sessions Judge, Solapur was pleased to convict all the four accused for the offences punishable under section 302,326, 324, and 323 each read with section34 of the Indian penal code whereas accused nos. 1 to 3 came to be convicted for the offences punishable under section 135 read with section 37 (1) of the Bombay Police Act and accused no. 4 came to be acquitted from the said charges.
2. Being aggrieved by the said order of conviction and sentence accused nos 1 to 3 filed Criminal Appeal No.380 of 1989 whereas accused no. 4 filed ::: Downloaded on - 09/06/2013 15:55:04 :::
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Criminal Appeal No.292 of 1989 and during the pendency of these appeals, accused nos. 1 and 2 died and therefore, these appeals survive for accused nos. 3 and 4.
3. As per the prosecution case, accused nos. 1 and 2 were sons of accused no.4 and accused no.3 is the son of the sister of accused no.4. The house of accused No.4 in New Pachha Peth, Ashok Chowk,Solapur was located opposite the house of the complainant Chanappa Kumbhar and there was some dispute between the two families on account of drain water. Accused no.3 had come to visit his aunt at Solapur though he was originally the resident of village Mangrul in Akkalkot taluka of Solapur district. On the date of the incident i.e. 3rd July, 1988 at about 5.30 a.m. the complainant shouted at his buffalo which was tied in front of his house and he used abusive language while doing so. The members of the family of the accused were awake at that time and accused no.4 heard the words used by the complainant and she presumed that he had abused her. She therefore got angry and came out of her house alongwith other accused to question the complainant who gave the explanation that he abused his buffalo and not ::: Downloaded on - 09/06/2013 15:55:04 :::
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accused no.4. However, this explanation did not appeal the accused and accused nos. 1 to 3 who were armed with knives and iron bars started assaulting the complainant. When he sustained bleedings injuries in the assault, Vithal the younger son of the complainant who was nearby and was loading manure in the bullock cart tried to intervene so as to save his father from further attacks and in this process Vithal was assaulted by accused nos. 1 to 3 with knives and iron bars. He sustained multiple stab injuries on his chest and grievous injuries on his forehead and hand etc. He collapsed and at that stage, Siddharam the elder son of the complainant tried to intervene but he also received blows from the accused. In the process, he was alleged to have hit a glass bottle to one of the accused i.e. accused no.2 Kallappa and Siddharam also received bleeding injuries. After Vithal collapsed the accused no.1 Dhondappa dropped the iron bar on the road and which was picked up by accused no.4 who also assaulted Vithal. Accused no.3 fled from the place and went towards the MIDC side. However, when some neighbours had alerted the police and police van reached the spot. Accused no.1,2 and 4 were taken in the police van. Accused No.1 filed the ::: Downloaded on - 09/06/2013 15:55:04 :::
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complaint which was registered as a FIR in C.R.No...... giving rise to Sessions Case No.7 of 1989 which had ultimately resulted in an acquittal.
4. Vithal was found dead on the spot and therefore the police recorded the inquest panchanama and spot panchanama. The accused nos.1,2 and 4 as well as the injured witnesses along with the complainant were sent Hospital, for at medical Solapur.
examination
The
to
complainant
the Civil
was
hospitalised along with Siddharam and so was accused no.2 Kallappa. Accused no.1 and 4 were shown arrested on 3rd July,1988 whereas accused no. 2 was shown arrested only on 16.7.1988 after he was discharged from the hospital. Accused no.3 was claimed to be absconding and came to be arrested on 6.7.1988. The dead body of Vithal was sent for post mortem which was conducted by PW 3 Dr.Laxmikant Bade who signed the post mortem notes at Exhibit 31.
5. The investigation was taken over by PW 21 PSI Appa Patil. PW 19 Sunil Valambe had recorded the dying declaration of Siddharam at Exhibit 33. While under arrest accused nos. 2 and 3 made a statement which was recorded as memorandum and two knives, ::: Downloaded on - 09/06/2013 15:55:04 :::
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article nos. 22 and 23 came to be discovered and both were strained with blood. The clothes from the person of the deceased as well as from the person of all the accused were seized and all the articles were sent for chemical analysis by PW 20 Appa Patil. The C.A.reports at Exhibit nos. 76 to 85 were received. The Investigating Officer during the process of investigation recorded the statements on completion of various witnesses including the eye-witnesses and of the same submitted the charge sheet.
The offences being exclusively triable by the Sessions Court the case was committed and the charge was framed on 13th December, 1988.
6. Before the trial court, the prosecution examined in all 21 witnesses and the defence did not examine any one. Though in the statement recorded under section 313 of the Code of Criminal Procedure the accused no.1 had denied their involvement and claimed that they were falsely implicated, during the course of the trial as well as while defending the case the accused sought to take the benefit of self-defence.
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7. It was the case of the defence that the deceased Vithal had initiated some arguments at about 5.30 a.m. and he had a spade in his hand. When accused nos. 1 and 2 questioned him, he was alleged to have assaulted accused no.1 and in that process by way of defence, accused no.2 assaulted the deceased. It was further contended that the complainant ig and his son aggressive thereby creating a life threat to the Siddharam were more accused party and consequently all the accused retaliated to save themselves. The learned trial Judge has discarded this theory of self-defence.
8. As per the prosecution, PW 8 Chanapa Kumbhar PW 10 Siddharam Kumbhar, PW 11 Nivrutti Yernagi (a neighbour) and PW 12 Mallappa Kumbar, wife of Chanappa were the eye-witnesses to the incident. PW 2 Dr.Siddram Kore, PW 3 Dr.Laxmikant Bade, PW 5 Dr.Prabha Shinde and PW 9 Dr.P.G.Ghatole were the doctors examined. PW 1 Purshottam Kulkarni was the government surveyor and had drawn the sketch plan at Exhibit 23 of the spot of incident. PW 4 Gurumurti Hiremath, PW 6 Chandrakant Munjale, PW 7 Tukaram Magan, were the panch witnesses. PW 13 Ramchandra ::: Downloaded on - 09/06/2013 15:55:04 :::
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Patil, PW 14 Yeshwant Mane, PW 16 Baburao Gondhali, PW 18 Ramesh Bandapatte, PW 19 Sunil Valambe, PW 20 Appa Patil were the police personnel whereas PW 17 Dnyaneshwar Bachal was a clerk from the office of Collector and PW 19 Sunil Valambe was a police official and SEM PW 21 Hirameth had recorded the dying declaration.
9. As per the Sessions Court, the charge against all the accused for the offences punishable under section 302 read with section 34 of the IPC was proved for causing homicidal death of Vithal, the charge under section 326 read with section 34 of IPC was proved for causing grievous hurt to the complainant, charge under section 324 read with section 34 was proved for causing hurt to Siddharam and charge under section 323 read with section 324 was proved for causing simple hurt to Mallabai and Shantabai. In addition accused nos. 1 to 3 were found to be guilty for the offences punishable under section 135 read with section 37 (1) of the Bombay Police Act.
10. As per PW 3 Dr.Laxmikant Bade the dead body of Vithal S/O Chanappa Kumbhar was received at the ::: Downloaded on - 09/06/2013 15:55:04 :::
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Civil Hospital, Solapur on 3rd June,1988 and he conducted the post mortem examination between 11.50 a.m. to 1.15 p.m. on the same day. The deceased was about 22 years of age and on examination of the dead body, the Medical Officer found the following external injuries:
1. Incised wound 3" below left cubital fossa, flexor surface measuring 3/4" x 1/2" x bone deep.
2. Incised wound middle, posterior side, left forehand verticle direction measuring 1" x 1/2" x 3/4".
3. Incised wound 10" above coccyz in mid line measuring 4" x 1`/2" bone deep.
4. Stab injury perforating 4" above lateral epicondyle, right arm outer side through and through measuring 1" x 1/2 " opening on medial side. Exit wound measuring 3/4" x 1/2" margins and angles clean cut.
5. Stab injury perforating, 3% below right shoulder joint and 2" above injury at S.No.4 measuring 1" x 1/2"through and through opening on medial side 1"
below pit of axilla measuring 1/2" x 1/4" margins and angles clean cut.
6. Stab injury 2" right lateral to xihold, transferse in direction measuring 1"x 1/2" opening inside the heart margins and angles clean cut.::: Downloaded on - 09/06/2013 15:55:04 :::
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7. Incised wound 4" below right nipple and 6 right lateral to mid line measuring 1/2" x 1/3" skin deep.
8. Lacerated wound 6" above right ear on top of head parallel to saggital suture measuring 2" x 1/2"
bone deep at places margins incised.
9. Lacerated wound 5" above left ear parallel toin 8 measuring 1 x 1/2"x 1/2" bone deep at places margins incised.
All these injuries were ante mortem and recent.
On internal injuries the doctor noticed the following corresponding injuries (corresponding injury no.6).
1. Clean cut fracture of 5th rib 1/2" lateral to sternum on right side
2. Incised wound on right side of pericardiau measuring 3/4" x 1/4" and also observed 50 ccs of blood in pericadial cavity
3. Stab injury on right ventricle measuring 3/4" x 1/4".
11. As per the doctor, the cause of death was shock as a result of the stab injuries and all the injuries were ante-mortem sufficient in the ordinary course of nature to cause death. He stated that the ::: Downloaded on - 09/06/2013 15:55:04 :::
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external injury no.6 with its corresponding internal injury was independently sufficient to cause death in the ordinary course of nature and rest of the injuries cumulatively were likely to cause death in the ordinary course of nature and further clarified that injury no.6 was capable of causing instantaneous death. He also stated that the stab wounds and incised wounds found on the dead body to him in were possible with knives articles 22 and 23 shown the court. He had issued injury certificate regarding the cause of death at Exhibit 31 and the post mortem report at Exhibit No.32.
He also clarified that injury nos. 8 and 9 found on the dead body were possible with an iron pipe article no.3. There was no cross examination of this witness and the medical evidence of this witness proved beyond doubt that Vithal the younger son of the complainant died a homicidal death due to multiple stab injuries he had sustained in the morning of 3rd July, 1988 in front of his house.
12. PW 2 Dr.Siddramappa Kore was another Medical Officer working in the Civil Hospital, at Solapur and was on duty on 3rd July, 1988 as the Casualty ::: Downloaded on - 09/06/2013 15:55:04 :::
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Medical Officer. PW 8 Chanappa Kumbhar, PW 10 Siddram Kumbar and accused no.4 Putlabai were examined by him at the instance of the police on 3rd July, 1988.
He further stated that the complainant Chanappa was brought to the hospital by PW 11 Nivrutti Yernagi. On examination of Chanappa he had noticed the following injuries on his person :
1. Stab wound 3 cm x 1 cm cart deep on left hy region
2. CLW 4 cm x 1 cm scalp deep on parietal region.
Injury no.1 could have been caused by hard and sharp object within 24 hours. Whereas injury no.2 could have been caused by a hard and blunt object within the same time. He further stated that Chanapa was referred to the x-ray department and fracture of right rib was detected. He was therefore, hospitalised and came to be discharged on 25th July, 1988. He stated that fracture on right rib was possible with a blow of a pipe article no.3. He confirmed that he issued medical certificate at Exhibit 25 and also stated that the stab wound on left parietal region was possible with a knife-
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article 23. The complainant was operated by Dr.Ghatole PW 9 along with Dr.M.D.Bhosale and Dr.M.S.Patil.
He further stated that Siddhram was examined by him at about 6 a.m. on 3rd July, 1988 and following three injuries were noticed on his person:
1.
Stab wound 3 cm x 2 cm parietal after left side of chest.
2. Stab wound 4 cm x 1 cm cavity deep on 8th rib region mid auxilliary.
3. C.L.W. 2 cm x 2 cm muscle deep on right web's space.
The doctor stated that all these injuries were simple in nature and could have been caused within 24 hours. Injury no. 23 could have been caused by a hard and blunt object and stab injuries could be caused by a sharp object like knife articles 22 and
23. C.L.W. was also possible with blow of iron pipe article no.3. Stab wound was sutured by Dr.Kale and Dr.Gandhi and Siddhram was discharged on 11th July, 1988.
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Accused no.4 Putlabai was brought at about 7 a.m. on 3rd July,1988 and the doctor had noticed the following injuries on her person:
1. Abrasion 2 cm x 2 cm on right knee
2. Contusion 2 cm and 2 cm on base of right thumb
3. Tenderness 5 cm x 5 cm on right gentle region.
The doctor opined that all the injuries were possible within 24 hours and cold have been possible by a hard and blunt object. He issued the medical certificate at Exhibit 29. He also stated that all these injuries were possible by a fall as well. In his cross examination he stated that the person who had accompanied accused no.4 had given history of assault on 3rd July,1988 at 5 a.m. But, he did not remember that history was given by the patient himself. He also clarified that the patient was conscious when she was examined by him.
13. PW 5 Dr.Prabha Shinde was also one of the Medical Officers at the Civil Hospital, Solapur since 21.10.1987. She stated before the trial court that on 3.7.1988 at about 7 a.m.,he had examined Kallapa accused no.2 who was referred to her by Jail ::: Downloaded on - 09/06/2013 15:55:04 :::
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Road police station and on his examination she found the following injuries :
1. C.L.W. 42" x 6 " muscle dendons exposed left elbow cubital fossa.
2. Contusion 3 " x 3" right hand
3. Abrasion 1 x x 1 cm left axilla
4. Abrasion 3 cm x 3 cm Lt forearm middle
5.Incised wound 1" x 1 1/2" above left iliac chest
6. Avulsion of nail 2nd toi
7. Abrasion 2 cm x 2 cm left foot med.
14. As per the doctor, all the injuries were within less than six hours and caused by article no.5 and other injuries could have been caused by a hard and blunt object. The original medical certificate at Exhibit 13 was issued and produced in Sessions case no.7 of 1989 and it was in her hand writing and signed by her. She also stated that at 7 a.m.,he examined accused no.1-Dhondappa and noted the following injuries on him:
1. C.L.W. 1 1/2" x 1/4" base of left middle finger palm aspect.
2. C.L.W. 1 1/2" x 1/4" left palm below index finger
3. C.L.W. 1" x 1/4" left foot below great foe ::: Downloaded on - 09/06/2013 15:55:05 :::
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4. Contused 1/2" x 1/2" right upper arm m/r
5. Contusion 1" x 1" left upper arm m/r
6. Abrasion on 1/2" x 1/2" over above contusion She reiterated that these injuries could have been possible within six hours before examination.
It was noticed that a fracture of bases of 4th,5th, 2nd metacarpals left side was detected. The original medical certificate was submitted in Sessions Case No.7 of 1989.
This doctor had also examined PW 12 Mallawa Kumbhar wife of the complainant on 3rd July,1988 at 11 a.m. and she noticed the following injuries :
1) Contusion 3 cm x 3 cm left forearm above wrist joint
2. Abrasion 1 cm x 1 cm right index finger 1st phalax.
3. Abrasion 2 cm x 2 cm ring finger terminal phalanx.
4. Abrasion 1 cm x 1 cm little finger.
All these injuries were simple in nature and could have been caused by a hard and blunt object ::: Downloaded on - 09/06/2013 15:55:05 :::
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probably within six hours before examination.
The doctor also stated that she had examined Shantabai Kumbhar the daughter of the complainant and found (1) C.L.W. 1 cm x 1 cm over right thumb 1st phalanx palmar aspect and (2) C.L.W. 2 cm x 2 cm right thumb 1st Phalanx dorsally.
The doctor stated that the injuries could have been sustained by an iron pipe article no.3.
In her cross-examination, she stated that accused no.2- Kallappa was referred to the hospital by Jail Road police station with a yadi Exhibit 45 and Kallappa was in the hospital from 3rd July,1988 to 16th July,1988.
15. As per PW 9, Dr.P.S.Ghatole the complainant Chanappa was referred to him by the Medical Officer Dr.Kore and condition of the patient was deteriorating. He was therefore, operated and his abdomen was opened to know the internal injuries.
Injury to the stomach 1" x 1" on ante of stomach was found and it was injury on the vital part of the body and therefore serious injury. He also stated ::: Downloaded on - 09/06/2013 15:55:05 :::
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that the said injuries during slow process could have been caused the death of the victim.
In his cross-examination, he stated that the patient was referred on 3rd July,1988 and he started the operation at 10 a.m. The patient was conscious when referred.
16. the We have to now examine whether the evidence of eye witnesses, panch witnesses and police personnel as well as other government employees as placed before the trial court by the prosecution support the order of conviction and sentence, challenged in these two appeals, qua accused nos. 3 and 4.
Exhibit 13 inquest panchanama, Exhibit 14 spot panchanama, Exhibit 16 seizure of the clothes of the complainant, Exhibit 17 seizure of the clothes of accused no.2 Kallappa,Exhibit 18 arrest panchanama of accused no.1 and Exhibit 19 seizure of clothes from the dead body of Vithal, Exhibit 21 list of articles sent for chemical analysis by the Investigating Officer are the documents admitted by the defence before the trial court.
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17. PW 6 Chandrakant Munjale was the panch witness for discovery of knife article 22 at the instance of accused no.3 under the panchanama at Exhibit 44 and memorandum of statement at Exhibit 43.
PW 7 Tukaram Magan is another panch witness for discovery of another knife article 23 at the instance of accused no.3 Kallappa Pattan.
47 is memorandum statement and Exhibit 48 is the Exhibit panchanama. Article nos. 3, 22 and 23 were the weapons along with all other articles as mentioned in the list at Exhibit 21 were sent for chemical analysis by PW 20 Appa Patil and as per the C.A.reports, received at Exhibit nos.26 to 85 the blood group of the accused persons was noted as under :
----------------------------------------------------
Sr.No. Name Blood group
----------------------------------------------------
1. Dhondappa Bhimashankar Pattan A
2. Kallappa Bhimashankar Pattan A
3. Dareappa Shantappa Hattarans
4. Putlabai Bhimashankar Pattan AB ::: Downloaded on - 09/06/2013 15:55:05 :::
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Blood group of PW 10 Siddhram Kumbhar was detected as B and that of his mother Mallava also and his father Chanappa complainant was of O. Article no.22 the knife was found to be stained with blood group A and B whereas other knife article 23 was found to be stained with human blood. The blood group of the deceased could not be detected.
18. PW 8 Chanapa Kumbhar stated before the trial court that his house was located at 34/33 at New Pachha Peth, Solapur and he stayed in the house with his wife Mallava sons Sidhram and Vithal and daughters Shantabai and Nilabai. Opposite to his house was the house of Bhimashankar Pattan across the road and accused nos.1 and 2 were the sons of Bhimashankar and Putlabai was his wife. Accused no.
3 is the maternal brother of Dhondappa. He was a milkman for about 20 years standing and has cattles in his house. The cow-dung was by the side of his house wall and drain water coming from the house of the accused was becoming a nuisance to him. He had therefore called upon the accused to stop the flow of waste water on the road and let it flow in the drain. On this count, there was a quarrel between ::: Downloaded on - 09/06/2013 15:55:05 :::
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the parties. On the date of the incident, he went to milk his buffaloes at 5 a.m. and the buffalo had delivered a calf, one day before. The buffalo had started giving kicks when its calf went around. He therefore, used abusive language to the buffalo and at that time accused no.4 was sweeping the courtyard of her house and heard the abuses hurled by him. In a short time, accused no.4 with two of her sons and out.
accused no. 3 armed with a iron pipe and knives came Accused no.4 questioned him as to why he was abusing to her and therefore he explained that he did not use any abusive words addressed to her and the abusive words were addressed to his buffalo. At that point of time accused no.1 gave a blow by iron pipe on his head while he was standing in front of his house. His other family members i.e. sons, wife and daughter Shantabai were also standing. Accused no.2 gave a blow with a knife below his chest and therefore his son Vithal intervened to rescue him.
Accused nos. 2 and 3 then started giving blows with knife one after another to Vithal on his stomach, head and arm with a knife. At this stage, the elder son Sidhram tried to intervene but accused no.1 attempted to give a blow with the iron pipe but, Siddhram raised his hand and therefore he received ::: Downloaded on - 09/06/2013 15:55:05 :::
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one injury on his hand. Accused no.2 gave a blow with the knife on the chest of Siddhram and accused no.3 gave a blow with the knife below the chest of Siddhram. At this stage, Vithal collapsed and cried "Melo Melo and accused no.1 threw away the pipe.
However, accused no.4 Putlabai picked upo the same and gave a blow by the said pipe on the head of Vithal who was lying on the ground. PW 12 Mallava and Shantabai ig tried injured men of their family.
to intervene to rescue
But, accused no. 1
the
started beating both of them with hands. Sidhram ran away towards the house of Nivrutti Yernagi PW 11.
All the witnesses also followed him to save themselves from further attack. Accused no.3 ran towards MIDC area whereas accused no.2 ran away towards the temple side and accused no.4 and accused no.1 went towards jail Road police station and Shantabai Mallava and Sidhram were taken to Civil Hospital by PW 11 in a rickshaw. PW 11 had witnessed the incident by standing there along with other witnesses like Laxman Misal,Gadeppa, Baliram Gaikwad and Manik Gondale.
19. The police recorded his statement which was signed by him and registered as FIR (Exhibit 15).
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The supplementary statement was recorded by the police on 5th July, 1988. He identified article 12 and 13 as the clothes which were recovered from his person by the police. He also identified articles 24,25 and 26 as the clothes recovered from the person of Vithal.
In his cross examination, he stated that
having a
Dhondappa accused no.1 was working as a milkman and shop whereas accused no.2-Kallappa was working in a textile mill and Bhimashankar father of accused nos.1 and 2 was working as a watchman in MIDC area. He also stated that the accused were residing in front of his house for last about five years and they had purchased an open plot from PW 11 and constructed a house. He was not aware whether Bhimashankar had lodged any complaint with the police about 7 to 8 months before the incident and he denied the suggestion that he had assaulted Bhimashankar. At about 5 a.m. when he had got up and uttered abusive words addressed to his buffalo, Vithal was loading manure and Siddharam was preparing fodder for the cattle. When all the accused persons came out of their house, Siddram was standing near his house but near the buffalo.
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Initially, accused no.4 had exchanged verbal words for about 5 to 10 minutes. He denied the suggestion that accused nos. 1 and 4 had gone to his house and asked him as to whether he used abusive words at accused no.4. He also denied the suggestion that he had pushed accused no. 4 and she fell down. He also denied that Siddhram and Vithal had started the incident by assaulting accused no.1. He also denied to have taken any steps so as to bring the life of accused nos.1, 2 and 4 in danger and that Siddhram was intending to give a blow with broken bottle on accused no.2. He also denied the suggestion that accused no.2 Kallappa while acting in self-defence had caused injuries to the complainant party.
Nothing further was brought out in the cross examination of this witness so as to impeach his testimony on the incident and the altercations as well as the assaults unleashed by the accused on himself, deceased Vithal,PW 10 Siddhram and PW 12 Mallawa as well as Shantabai.
20. PW 10 Siddram has by and large supported the testimony of his father PW 8 Chanapa Kumbhar. He reiterated the clarification given by his father that abusive words were uttered to the buffalo and ::: Downloaded on - 09/06/2013 15:55:05 :::
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not towards Putlabai accused no.4. He stated that accused no.1 delivered a blow with a pipe on the head of Chanapa, accused no.2 gave a blow with a knife on the left side of stomach of Chanapa and at this stage, Vithal intervened with a space in his hand to save Chanapa. On seeing him, Dhondappa attacked Vithal and in the process he fell on the ground. Accused nos.2 and 3 gave blows with knives, one after the other on the stomach, back and head of Vithal. He therefore, intervened to save Vithal but he was unarmed. He therefore, picked up a broken glass bottle lying on the spot and threw at the direction where the accused Kallappa and Dhanappa were standing. The bottle hit the left hand of accused no.2. At this stage, accused no.1 got up and gave a pipe blow to him and while saving the attack he sustained injuries on his hand. Accused no.2 gave blows with a knife on his head followed by another blow by the accused no.3. Vithal collapsed screaming " Melo Melo" and accused no.1 threw away the knife which was picked up by accused no.4 and she assaulted Vithal with it. Seeing the incident, when Shantabai and Malla tried to intervene, they were also assaulted. While he was taken in a rickshaw he had requested the people around there to ::: Downloaded on - 09/06/2013 15:55:05 :::
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pick up Vithal so as to take him to the hospital but he saw that Vithal had died on the spot.
In his cross examination, he stated that within 15 minutes he was hospitalised and his statement was recorded by the police two days thereafter. When he received knife blows he was standing at the same place where his brother and father Chanapa were assaulted.
He also stated that known about two months to him before the incident accused no.3 was and he was aware of his relationship with accused no.1 and 2. He also stated that his statement was recorded by the Executive Magistrate. He also admitted that he had not stated to the Executive Magistrate that accused no.3 had given a blow with a knife and accused no.1 had given a blow with a iron pipe. He denied the suggestion that the attack was initiated by his brother Vithal and father Chanappa and therefore accused persons assaulted him in self defence.
21. PW 11 is an independent eye witness who is not a member of the complainant's family. He was residing a few houses away from the house of the complainant and he could not have seen the incident ::: Downloaded on - 09/06/2013 15:55:05 :::
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from his house but, on hearing the hue and cry, at around 5.30 a.m., on 3rd July, 1988 he had come out to the chowk where he had seen Nagnath standing in front of the house of the complainant and witnessed the incident. He stated that he had seen accused no.1 in front of the house of the complainant.
Accused no.1 was leading the accused party and he gave a blow of pipe on the head of Chanappa.
Accused no.2 followed and gave a blow with a knife below the chest of Chanappa. At this stage, accused no.3 also gave a blow with the knife in the stomach of Chanappa. The deceased Vithal rushed with a spade in his hand and accused no.2 gave blows with knife on his chest, stomach and thumb. Accused no.3 also gave blows with knife on head, back and stomach of Vithal. Vithal fell down and therefore, Siddhram tried to intervene but was assaulted. Vithal raised screams saying " Melo Melo". Kondappa threw the pipe on the ground which was picked up by accused no.4 and she assaulted with the same to Vithal. At this stage, Siddram hurled a brick at Kallapa which hit Kallapa and accused no.2 ran away with knife towards Maruti temple and accused no.3 ran away with the knife towards the MIDC area While accused nos.1 and 4 were trying to flee away, they fell down in ::: Downloaded on - 09/06/2013 15:55:05 :::
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front of his house. He had taken Siddhram and Chanappa to the hospital and when he went to Vithal he found him dead. On the way Dr.Gaikwad had met them. In his cross examination he denied the suggestion that he had borrowed a sum of Rs.5000/-
from Bhimashankar in January,1988 and that he had avoided to execute the sale deed of the plot sold by him to Bhimashankar. He also admitted that when the accused persons were assaulting Vithal and as well as the complainant, he did not make any attempt to intervene and the incident lasted for about 10 to 15 minutes. His statement was recorded by the police in civil hospital.
PW 12 Mallawa Kumbhar has corroborated the evidence of all these three witnesses regarding the assault on Vithal, Chanappa and Siddhram as well as on herself and Shantabai. She also stated that it was accused no.1 who started beating Shantabai when they joined to intervene. She also stated that accused n.3 had ran away towards the MIDC area with a knife in his hand.
22. The evidence of all these four eye witnesses proved the prosecution case that accused no.3 was ::: Downloaded on - 09/06/2013 15:55:05 :::
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not a silent spectator in the incident and while he was standing near the house of the complainant, he was armed with a knife in his hand (Article 22). He had used that knife in the assault on the deceased Vithal as well as Chanappa and thus actively participated in the assaults.
It may be possible as was urged before us by the learned ig defence counsel that inflicted by him with a knife did not result in the the injuries death of Vithal but, as has been clarified by PW 3 Dr.Bade the cumulative effect of the stab injuries had resulted in the death of Vithal and this supports the prosecution case of commmon intention shared by accused no.3 with other co-accused.
In any case, it is not necessary to prove the common intention of accused no.3 along with other accused persons in such a manner that he ought to have caused such an injury to the deceased which resulted to be fatal and therefore, the submissions made by the learned counsel that accused no.3 had not contributed nor caused any injuries on Vithal which resulted in his death and he deserves to be acquitted from the charge punishable under section ::: Downloaded on - 09/06/2013 15:55:05 :::
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302 read with section 34 of IPC, cannot be accepted.
23. The learned counsel further submitted that when the knife article 22 was discovered at the instance of accused no.3 from the MIDC area he was handcuffed as is clear from the evidence of PW 6 Chandrakant Munjale.
He placed reliance on the decisions of this court (Division Bench) in the case of (1) SHIV KUMAR VS STATE OF GOA 1992 (2) BOM C.R.169, (2) DEVRAJ SUVARNA VS STATE OF MAHARASHTRA (1994) 4 Bom C.R.85 and (3) LAXMAN PATIL VS STATE OF MAHARASHTRA 2001 (5) BOM C.R.45.
It was urged by the learned counsel that recovery of the knife cannot be held to be voluntary as accused no,.3 was handcuffed at the relevant time and therefore, the said recovery is not a circumstance which would support the case of the prosecution. In short, the said recovery is required to be discarded from consideration urged the learned defence counsel.
We are not impressed by these submissions.
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There can be no doubt that when the accused is handcuffed he may not be free from fear of the police or duress or pressure. But, that itself cannot be a reason to discard the recovery of weapon if it was otherwise found to be supported by evidence of the panch witnesses and the Investigating Officer. Handcuffing of a person by itself cannot be a reason to generalise the case hypothesis that such a discovery cannot be reliable.
Each will have to be examined in its own peculiar circumstances and in the facts of this case having regard to the testimony of PW 6 Chandrappa and PW 20 Appa Patil and the fact that knife was found to be stained with blood group A and B, we do not find any reason that accused no.3 had used such a knife while assaulting the deceased Vithal as well as the complainant Chanappa. The defence did not challenge the C.A.reports placed on record and exhibited.
24. Thus, the evidence of the eye witnesses has proved beyond reasonable doubts, the case of the prosecution that accused no.3 actually participated in the assault on the complainant party and he used the knife article 22 in the said assault, that had ::: Downloaded on - 09/06/2013 15:55:05 :::
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taken place on 3rd July, 1988 in front of the house of the complainant between 5.30 and 6 a.m. The reasonings set out by the trial court regarding the complicity of the accused no.3 in all the offences does not suffer from any error and therefore, the order of conviction and sentence passed by the trial court deserves to be confirmed against him in its entirety.
25. So far as accused no.4 is concerned, though all the eye witnesses have attributed a specific role to her in the assault on deceased Vithal the testimony of all these witnesses creates doubt. Every one of them stated before the trial court that after accused no.1 dropped the iron pipe, she picked it up and assaulted Vithal. Evidence of all these witnesses proved that Vithal had collapsed with bleeding injuries on his chest, arm and head etc. The role attributed to the accused appears to be couched in parrot like words and does not appear to be natural in as much as she was more than 50 years of age at the relevant time. Though it was she who had initiated verbal fights between herself and the complainant, it is difficult to believe that she ::: Downloaded on - 09/06/2013 15:55:05 :::
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actually participated in the assault on the deceased-Vithal. We are willing to accept that she was part of the accused team which unleashed the attack on the complainant, deceased and other family members of the complainant. But in our considered opinion, she could not be held guilty for the offence punishable under section 302 read with section 34 of the IPC as well as section 326 read with section 34 of the IPC on the basis of her alleged role in assaulting Vithal and Chanappa. We, therefore, acquit her from these charges but, find her guilty of an offence punishable under section 323 read with section 34 of IPC.
She is now aged 70 plus and was in jail for about 10 days before she was released on bail by the trial court. We also noted that after the impugned order of conviction was passed, she was taken in custody and as per order dated 28th April,1989 she was released on bail and was thus in prison for about one month.
26. In the premises, Criminal Appeal No.380 of 1989 fails and the same is hereby dismissed. The order of conviction and sentence dated 12th April, 1989 ::: Downloaded on - 09/06/2013 15:55:05 :::
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passed by the trial court against the appellant (accused no.3) stands confirmed in its entirety.
Criminal Appeal No.292 of 1989 succeeds partly.
The order of conviction and sentence passed against the appellant (accused no.4) for the offences punishable under section 302,326 and 324 each read with section 34 of IPC is hereby quashed and set aside. The order of conviction and sentence passed against her for the offences punishable under section 323 read with section 34 of IPC is hereby confirmed. She is sentenced to suffer imprisonment for the period she has already undergone and in addition she shall pay a fine of Rs.5000/- and in default thereof to suffer simple imprisonment for one month.
Undoubtedly, accused no.3 shall be entitled for set off, if any, under section 428 of the Code of Criminal Procedure.
The professional fees of the Advocate appointed for the appellants is quantified at Rs.4000/-.
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Criminal Appeal No.595 of 2010 does not survive any further and the same is disposed as such.
MRS.MRIDULA BHATKAR, J B.H.MARLAPALLE,J ::: Downloaded on - 09/06/2013 15:55:05 :::
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