Kailash Subhash Paradeshi v. The State of Maharashtra

Mr.A.H.Kapadia, advocate for the appellant. Mrs.R.D.Reddy, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Reserved on : 21.08.2009. Pronounced on : 11.09.2009. JUDGMENT

1. These three appeals, noted above, arise out of judgment rendered by learned Additional 3 Sessions Judge, Dhule in Sessions Case No. 153/1996. The appellants have been convicted for offences punishable U/s 304 Part II read with Section 34 of the I.P. Code and U/s 323 read with Section 34 of the I.P.Code. They have been each sentenced to suffer rigorous imprisonment for five (5) years and to pay fine of Rs.500/- (Rupees five hundred), in default to suffer rigorous imprisonment for one (1) month on first count and rigorous imprisonment for one (1) month and to pay fine of Rs.500/- (Rupees five hundred), in default to suffer rigorous imprisonment for seven (7) days on the second count.

2. The prosecution case, in short, is that on account of enmical relations, the appellants went to residential house of deceased Babulal in the night at about 9-30 p.m. on 30.6.1996. They and other two acquitted accused persons, namely, original accused No.2 Subhash and accused No.7 Deokabai, intended to take revenge of earlier incident which was reported by deceased Babulal at the Police Station. They were armed with 4 sticks, iron bars and stones when they approached Babulal while the latter was in slumber. They pulled out his cot. No sooner he awoke they started beating him after dragging him from the ota. They pulled him towards the courtyard of an adjacent house while continuing to beat him. His married daughter (P.W. Rekha) attempted to intervene. They assaulted her. The young son of Babulal had gone to ease himself at the corner of nearby temple. He saw the incident of beating while returning home. He was scared of life. The appellants severely assaulted Babulal and ultimately dropped him in the nearby courtyard of a house. The wife of Babulal (P.W.Anusayabai) and his son (P.W.Vijay) immediately rushed to the Police Station while the incident of beating was going on in the nearby courtyard. The Police Station Officer deputed two constables with them. When they reached back home, along with the two Police constables, injured Babulal was found lying in the courtyard. He was in battered condition. So also, injured P.W. Rekha was also lying at a short distance. Both of them were transported to Primary Health Center, Sindkheda, 5 where the Medical Officer declared that Babulal was no more. Injured P.W. Rekha was clinically examined, given primary treatment and referred to the Civil Hospital at Dhule for further treatment. On the basis of report lodged by P.W. Vijay, Crime No.44/1996 was registered for offences punishable U/ss 143, 147, 148, 149, 452, 302, 324 and 504 read with Section 34 of the I.P.Code. The dead body of Babulal was subjected to post mortem examination. On the basis of material gathered during the course of investigation, the appellants and two acquitted accused persons were tried for the offences of committing rioting with an unlawful object of eliminating deceased Babulal and of assaulting him by means of deadly weapons and also of causing grievous hurt to P.W. Rekha.

3. At the trial, the prosecution examined in all ten (10) witnesses in support of its case. The appellants denied truth into the charge levelled against them. No specific defence was raised by them. It was suggested that due to previous enmity, they have been framed in the 6 false case. The learned Additional Sessions Judge, held that the eye witness account tendered by the prosecution witnesses, duly proved the fact that the appellants assaulted Babulal by means of sticks and an iron bar. The learned Sessions Judge, however, held that the appellants had no intention to cause death of Babulal though they could have knowledge that he may die as a result of their assault. The learned Sessions Judge, held that the charge of criminal house trespass and rioting with deadly weapons could not be established. The learned Sessions Judge observed that there was no common object nor the appellants were members of the unlawful assembly which allegedly was formed to cause death of Babulal. It has been held that the appellants voluntarily caused grievous hurt to P.W. Rekha and caused death of Babulal by such acts which they knew, were likely to cause his death. In keeping with such findings, the appellants were convicted and sentenced as described hereinabove.

4. It may be stated that the State has not preferred any appeal against the acquittal of the 7 original accused Nos.1 and 7 nor the acquittal of the appellants for the offences punishable U/ss 302 read with Section 149, 307 read with Section 149, 452 read with Section 34, 143 and 148 of the I.P.Code. have been challenged by the State.

5. Heard learned counsel for the appellants and learned A.P.P.

6. On behalf of the appellants, it is submitted that P.W.1 Vijay could not have been treated as eye witness of the incident. It is pointed out that there are discrepancies in his statement and the statement of P.W. Rekha as well as that of P.W. Anusayabai. It is argued that interested versions of P.W.Vijay and other witnessess can not be implicitly relied upon. The learned counsel would submit that evidence tendered by the prosecution is unacceptable and unreliable, particularly, in view of the fact that family members of deceased Babulal the appellants were on bitter enmical terms. It is submitted by the learned counsel that P.W.Vijay and other witnesses gave false account regarding 8 the incident due to animosity and with a view to frame the appellants in a false case. Consequently, the learned counsel urged for acquittal of the appellants. Per contra, learned A.P.P. supported the impugned judgment.

7. There can not be any doubt about the fact that there was bitter enmity between family members of deceased Babulal and that of the appellants. It has come on record that about 3/4 years before the incident, the eldest son of Babulal, by name, Sanjay was done to death and, therefore, the original accused No.1 Dipak and the present appellant Ashok along with one Dilip S/o Narayan were prosecuted. They were acquitted from the said charge. It is further manifestly clear that from the day of such incident, relations between the appellants and deceased Babulal were strained. Complainant P.W. Vijay and his sister P.W. Rekhabai were facing a prosecution on the charge that they had beaten up Dilip S/o Narayan. That case was pending at the relevant time in the Court of learned Judicial Magistrate at Sindkheda. Needless to say, the enmity between them was still to die down. 9

8. From versions of P.W.Vijay, P.W. 2 Rekha and P.W.6 Anusayabai, who are son, married daughter and wife of deceased Babulal interse, it is amply clear that the appellants visited their house in the relevant night at about 9-30 p.m. Though they are close relatives of deceased Babulal, yet, their versions can not be discarded only due to such relationship with him. The version of P.W. Vijay reveals that he had gone to ease himself near an open place situated at corner of a temple. He saw the incident of beating while he was on way back to the house. He explained that he did not go to help his father due to fear of death. His version purports to show that he was afraid that the appellants would beat him and as such he and his mother (P.W.Anusayabai) immediately went to Sindkheda Police Station. Along with them two Police constables were deputed and hence, they came back to the house. Their versions go to show that Babulal was lying in the nearby courtyard in injured condition. He was unconscious. So also 10 P.W. Rekha was lying in injured condition at a short distance. Both the injured were put up on a push-cart. Thereafter they were transported to the Police Station. The Police issued a requisition letter addressed to the Medical Officer of the Primary Health Center. Both the injured were shifted to the PHC.

9. At this juncture, it may be mentioned that the appellants are relatives of deceased Babulal being cousin, nephews etc. The eye witness account tendered by P.W. Vijay, P.W. Rekha and P.W. Anusayabai would indicate, unmistakably, that the appellants were armed with sticks, iron bar and stones etc. It is pertinent to notice that the FIR (Exh.17) was lodged in the same night with promptitude. The conduct of P.W. Vijay reveals that he immediately approached the Police Station while the incident of beating was going on and, therefore, two Police constables reached spot of the incident soon after the incident was over.

10. The version of P.W.Rekha is more 11 significant. For, she is an injured witness. It is well settled that testimony of an injured witness can not be lightly brushed aside. Normally, an injured witness is unlikely to allow the real culprit to go scot free. By natural instinct, an injured witness would ordinarily implicate only the real assailants as culprits, without an attempt to concoct a false case. Considering version of P.W.2 Rekha, it is amply clear that the appellants initially pulled cot of Babulal from the Ota and forcibly took him to a nearby courtyard. Her version purports to show that the appellants were armed with sticks and iron bar. She narrated as to how her deceased father (Babulal) was assaulted by the appellants at the relevant time. Her version purports to show that she pleaded with the appellants to spare her father from beating. She deposed that the appellants then assaulted her by means of sticks and iron bar. She narrated that she was injured and fell down on the ota (platform). Her version goes to show that when P.W.Vijay and her mother returned home along with two constables then she was lying in injured condition on the 12 ota, whereas injured Babulal was lying in nearby courtyard. Nothing of much significance could be gathered from her cross-examination. She admitted that about 5/6 days prior to the incident Dilip S/o Narayan had lodged a complaint against herself, P.W. Vijay and deceased Babulal. They were arrested on the charge of assaulting said Dilip. They were released on bail after a couple of days. Thus, it is an admitted fact that Babulal, P.W. Vijay and P.W. Rekha were arrested only a few days before the incident on the charge of assaulting said Dilip, who is related to the appellants and who was one of the accused in the previous Sessions Case instituted against two of the appellants and said Dilip for murder of elder brother of P.W.Vijay. It is highly probable, therefore, that after release of Babulal on bail, the appellants were planning revenge of the incident of assault mounted on said Dilip S/o Narayan. The learned counsel for the appellant would point out that P.W. Rekha admitted the fact that P.W.Vijay was not present when the assault was mounted because he has gone to answer call of nature and further that some 13 neighbours had gathered at the spot on hearing her shouts. The absence of P.W.Vijay is an admitted fact but what he further clarified is also significant. He saw the incident from a distance while returning home and immediately went to the Police Station. The fact that some of the neighbours gathered around the spot is also of no much help to the defence of the appellants. For, adjacent occupant of the house was P.W.4 Pandit and he supported the case of prosecution.

11. Coming to the versions of P.W.Pandit and P.W.Sunanda, who is daughter of P.W. Pandit, it is amply clear that they reached the spot after hearing shouts viz. "Mara, Mara (beat, beat)". They noticed that the appellants were beating P.W. Rekha at the ota by means of an iron bar and sticks. She received injuries on the nose and head. They further noticed that the appellants assaulted deceased Babulal and dragged him up to the nearby courtyard. It is explained by P.W. Pandit that he did not intervene because the appellants Ashok and Kailas threatened him 14 that if he would intervene then he would be killed. He and P.W. Sunanda immediately left the spot and went on Dhaba (terrace) of their house. It is worthwhile to note that house of P.W. Pandit is adjacent to the house of deceased Babulal. He is the younger brother of deceased Babulal. So also, he is the real brother of appellant Subhash, who is the original accused No.2. Therefore, he is equally related to the appellants and have no antipathy towards them.

12. The spot panchanama (Exh.25) was drawn in the morning of the next day, short while after availability of the sunlight. The recitals of the spot panchanama (Exh.25) would confirm the fact that the alleged incident occurred on the ota and in the courtyard of a nearby house owned by one Raghunath Shankar Thete. The Police and Panchas noticed pool of blood on the road near the courtyard. The panchas also noticed that there was pool of blood on the 4th tile of the ota and there were stains of blood here and there on the ota, as well as on four stones lying in the proximity thereof. Significantly, one of the 15 iron cot with broken leg was found there.The topography of the spot of incident and the fact that pool of blood was found at the two places would go to show that the occurrence did happen at the said place. The fact that one of the leg of the iron cot was broken would indicate that the cot was pulled with force. Thus, the circumstantial evidence also lends corroboration to the eye witness account tendered by P.W.Rekha and P.W.Anusayabai as regards the manner of commencement of the incident.

13. On close scrutiny of the evidence of P.W.Dr.Lad, it would be explicit that injured Babulal, died as a result of multiple injuries sustained by him and particularly due to fracture of skull which caused severe haemorrhage. The Medical Officer carried out the post-mortem examination in the noon of 1.7.1996. He noticed multiple external injuries on person of deceased Babulal as mentioned in column No.17 of the post- mortem notes. He also noticed a crack fracture of frontal bone extending to nasal region 5" x 1/4" by bone deep during the course of internal 16 examination. He noticed that blood was oozing from the nostril bones and there was fracture at the base of the skull. The injuries found on the person of deceased Babulal were antemortem. The version of Dr.Lad lends corroboration to the postmortem notes (Exh.21). He admitted that injury caused to the skull could be noticed only after xray examination. No xray examination was conducted. However, such admissions of P.W.Dr.Lad are of no significance inasmuch as he noticed the internal injuries during the course of postmortem examination. Obviously, there was no need to undertake scanning or xray examination when the fact was writ large that the death was due to fracture of the skull bone. The medical evidence corroborates the fact that P.W.Rekha was injured during the course of the assault. Dr.Lad noticed a contused lacerated wound on left frontal parietal region and haemotoma around the above injury as well as punctured wound over bridge of the nose of injured P.W.Rekha. He corroborated recitals of the Medico Legal Certificate (Exh.20). 17

14. Considering the total impact of the eye witness account, topographical account and that of the corroboration from the medical evidence, I am of the opinion that the learned Sessions Judge, rightly held the appellants guilty for voluntarily causing injuries to P.W. Rekha and also holding them as authors of the death of Babulal. In fact, much can be said about incorrect view taken by the learned Sessions Judge in respect of absence of intention of the appellants to cause death of Babulal and that they not being members of an unlawful assembly. However, since such findings are not challenged by the State, and at the present stage it would not be proper to suo-motu take cognizance of such infirmities noticed from the impugned judgment, I deem it proper to hold that the appellants are guilty of the offences for which they have been convicted. It is not necessary to deal with other evidence of circumstantial nature including seizure of the sticks and the iron bar and reports of the Chemical Analyser.

15. For the reasons aforestated, I do not 18 find any substance in the appeals. There is no reason to take any lenient view as regards the sentence awarded to the appellants. Hence, all the three appeals are dismissed. The impugned judgment is confirmed. The appellants shall surrender to the bail and the learned Sessions Judge shall ensure that the remaining part of the substantive sentence, if any, is undergone by them. The learned Sessions Judge shall report compliance within six (6) weeks. (V.R.KINGAONKAR,J.) asp/office/Crappeal27797