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2014 DIGILAW 1579 (BOM)

Shyama Tukaram Sahare v. State of Maharashtra

2014-07-18

B.P.DHARMADHIKARI, C.V.BHADANG

body2014
Judgment B. P. DHARMADHIKARI, J. In these appeals filed under Section 374 of the Code of Criminal Procedure, accused Nos. 1 & 2 in Sessions Trial No. 79 of 2005 question the judgment dated 31.03.2007. The Adhoc Additional Sessions Judge, Gondia, has found both the accused guilty of offence under Section 302 read with Section 34 of Indian Penal Code for committing murder of one Shivchand Patle and sentenced them to suffer imprisonment for life and to pay fine of Rs.3,000/-, in default to undergo Rigorous Imprisonment for six months. Accused No. 1 - Pyarelal is further convicted under Section 307 of I.P.C. for attack on P.W.1 - Mulchand and sentenced him to suffer R.I. for five years, to pay fine of Rs.2,000/-, in default to undergo R.I. for four months. Sentences of accused No. 1 are to run concurrently. Accused No. I - Pyarelal s/o Mangasu Tumsare, is appellant in Criminal Appeal No.478 of 2011 while accused No.2 Shyama Tukaram Sahare, is appellant in Criminal Appeal No. 362 of 2007. 2. We have heard Shri Daga, learned counsel for the appellant - Shyama and Shri Joshi, learned counsel for the appellant-Pyarelal and Shri Patel, learned APP for the respondent, in both the appeals. 3. The date of incident is 11.10.2005. The prosecution alleges that on that date, deceased - Shivchand and his cousin brother/victim/complainant/P.W.1 - Mulchand had gone to their fields and then they proceeded to water tank to verify whether water was flowing through channel to their respective fields. They found the channel blocked/closed. Accused No.1 - Pyarelal and Accused No.2-Shyama, who also own their fields in the vicinity and take water from the very same tank, arrived there. Pyarelal was having Sabbal while Shyama was having Khatawa. The deceased asked both the accused as to why they closed the water supply. There was quarrel between the deceased Shivchand, Mulchand on one side and both the accused on other side. Pyarelal delivered two blows of Sabbal which struck on left hand and head of P.W.1 - Mulchand. He fell down in the water tank. Both accused then rushed towards the deceased - Shivchand and delivered number of blows with weapons on him. Shivchand also fell down on the bank and both the accused then left the place of occurrence. Mulchand then rushed to village, communicated the assault to P.W.2 - Bharat and P.W.5 - Shivani Kumar Kulsinge. He fell down in the water tank. Both accused then rushed towards the deceased - Shivchand and delivered number of blows with weapons on him. Shivchand also fell down on the bank and both the accused then left the place of occurrence. Mulchand then rushed to village, communicated the assault to P.W.2 - Bharat and P.W.5 - Shivani Kumar Kulsinge. He requested all of them to accompany him to the spot to verify whether Shivchand was alive or not. They all found Shivchand dead. They, then, proceeded to his house and narrated incident to the family members. Shivchand's relatives then approached Police Station at Tirora. P.W.1 - Mulchand lodged an oral report (Exh. 18). P.W.9 - Police Inspector registered offence under Sections 302, 307 read with Section 34 of I.P.C. by issuing First Information Report (Exh. 19). After completing investigation, charge sheet was presented. The prosecution alleges that Khatawa used as weapon by accused No.2 - Shyama was found lying near dead body while Sabbal was recovered under Section 27 of the Evidence Act, from accused No. 1 - Pyarelal. 4. Shri Daga, learned counsel, has in this background submitted that when Section 34 of I.P.C. could not be used to connect Shyama with assault on Mulchand and Shyama has been acquitted of that charge, by the very same logic that section could not have been invoked in respect of alleged attack on the deceased Shivchand. He contends that Shyama, therefore, needed to be acquitted for said offence. He further submits that P.W.2 and P.W.5 have turned hostile. Their evidence show that Mulchand came to them and informed that Shivchand had vanished and sought their help to trace him out. He submits that this is consistent with the fact that on 11.10.2005 i.e. in winter in the night at about 7.00 P.M. to 7.30 P.M., the attack has been alleged and in the absence of light, P.W.1 - Mulchand could not see Shivchand. As he could not see Shivchand, he also could not see any of the persons attacking Shivchand and story of attack by accused as complained is, therefore, incorrect and false. He invites attention to Post Mortem report at Exh. 51 to show that there was alcohol in viscera of the deceased. He contends that Sabbal and Khatawa were with Shivchand & P.W.1 and not with the accused. He invites attention to Post Mortem report at Exh. 51 to show that there was alcohol in viscera of the deceased. He contends that Sabbal and Khatawa were with Shivchand & P.W.1 and not with the accused. He submits that the weapon khatawa allegedly put in the hands of accused No.2 - Shyama, has not been co-related with him and, therefore, said accused is liable to be acquitted. The evidence of P.W.3 - Medical Officer Dr. Kanchan was relied upon to show that there were only two injuries on Shivchand and hence story of about seven or more blows on his person or use of khatawa by accused No.2 to attack Shivchand is negated. He contends that the Doctor's evidence rules out use of khatawa. He further argues that though arrest of Shyama is shown on 12.10.2005, cloths are stated to be seized from his person thereafter and it is alleged that the same were blood stained. He submits that after 20 hours of alleged incident, no prudent person would have continued to wear the same cloths. Chemical Analyser's report at Exh. 50 along with requisition to Chemical Analyser sent by the Investigating Officer, is relied upon to demonstrate that the cloths are not found to be blood stained. He contends that if Chemical Analyser's Report was to be used against accused No.2, the trial Court ought to have put results/conclusions mentioned therein as circumstances against him to accused No.2 while recording his Section 313 statement. He invites attention to Question No. 28 to urge that a general question on Chemical Analyser's report has been put to said accused and not any circumstance in it. Use of Chemical Analyser's report, in this situation, by trial Court in para 22 of its judgment against accused No.2 is, therefore, unsustainable. He also relies upon conclusion in para 13 of said judgment to support his argument of absence of common intention. 5. Shri Joshi, learned counsel appearing on behalf of accused No. 1- Pyarelal, submits that P.W.1 alleges two blows by Pyarelal and then he fell down to tank which is about 20 feet below the embankment. Due to said fall and darkness, he did not see alleged attack on Shivchand, therefore his version about giving blows to the deceased Shivchand and use of Sabbal by Pyarelal for said purpose is unacceptable. Due to said fall and darkness, he did not see alleged attack on Shivchand, therefore his version about giving blows to the deceased Shivchand and use of Sabbal by Pyarelal for said purpose is unacceptable. He contends that story evolving from evidence of P.W.2 and P.W.5 that Mulchand came to them to trace out missing Shivchand appears to be more probable. He submits that accused No.1 - Pyarelal could not have been implicated even under Section 307 of Indian Penal Code. Dr. Chandoba(P.W.4) has found only two simple injuries on Mulchand and those injuries are due to fall from height of about 20 feet. He contends that discovery of Sabbal by accused No.2 under Section 27 of the Evidence Act, cannot be relied upon as no arrest panchnama came to be filed along with charge sheet by P.W.1 - Investigating Officer. Therefore, on the date of alleged discovery, accused No.1 was not in police custody. He also adopts all arguments of Shri Daga, learned counsel to urge that accused No.1- Pyarelal is also liable to be acquitted. Without prejudice, he submits that the incident has taken place during quarrel and at the spur of moment, in heat of passion, deceased Shivchand was under influence of alcohol and it may have contributed to flaring up of tempers. He submits that, therefore, in any case offence under Section 302 of I.P.C. is not made out against Pyarelal. 6. Shri Patel, learned APP appearing for the respondent - State in both the appeals, submits that there were total nine witnesses and accused persons have accepted presence of P.W.1 - Mulchand on the spot. The evidence of P.W.2 - Bharat and P.W.5 - Shivaji cannot be totally overlooked and to the extent it supports the case of the prosecution, the same must be relied upon. He further contends that the injuries on the deceased Shivchand deposed to by Dr. Kanchan are possible by Sabbal as also by khatawa. He further states that Shivchand as also Mulchand had blood group "O" and that blood group has been found on cloths of both the accused. He also draws support from the report of the Chemical Analyser. 7. He further contends that the injuries on the deceased Shivchand deposed to by Dr. Kanchan are possible by Sabbal as also by khatawa. He further states that Shivchand as also Mulchand had blood group "O" and that blood group has been found on cloths of both the accused. He also draws support from the report of the Chemical Analyser. 7. In view of the specific contention of Shri Daga and Shri Joshi, learned counsel, that the material on record cannot be used to connect the alleged cloths on the person of accused and due to finding of trial Court in para 22 that blood group of P.W.1 - Mulchand and of deceased Shivchand was found on the cloths of both the accused, time was given to the learned APP to support the said finding. However, when the matter was taken up again, the learned APP was unable to invite attention of this Court to any such material. However, continuing his arguments, the learned APP submitted that necessary circumstances have been put to both accused under Section 313 Cr.P.C. and as such, there is no question of remanding the matter back to the Trial Court. 8. P.W.2 - Bharat deposed that P.W.1 - Mulchand came to his house and informed that Shivchand was not to be seen. He sought help of Bharat and accordingly Bharat, Mulchand and 4 - 5 other persons and some children went to tank. Shivchand was found lying dead on the bank of tank with injuries on his head. This witness was declared hostile and during cross by the learned APP, he accepted that Mulchand told him that both the accused beat Shivchand and, therefore, they should go to tank. 9. P.W.5 - Shivaji, has in chief, deposed exactly on same lines. During cross, he stated that portion marked ‘A" in his police statement about quarrel between the accused and deceased Shivchand on the bank of tank and both accused beat deceased with Sabbal and Khatawa is not correct. He accepted that he saw injuries on the forehead of the deceased - Shivchand. He also accepted that there were injuries on the deceased - Shivchand. He denied that any khatawa was seen lying near dead body. He deposed that portion marked 'B' in his statement before police was not correct. 10. P.W.1 - Mulchand is injured witness. He accepted that he saw injuries on the forehead of the deceased - Shivchand. He also accepted that there were injuries on the deceased - Shivchand. He denied that any khatawa was seen lying near dead body. He deposed that portion marked 'B' in his statement before police was not correct. 10. P.W.1 - Mulchand is injured witness. The charge under Section 307 against both the appellants is/was on account of alleged attack on his person. He has deposed that they proceeded to water tank to check the flow of water to their fields and found water channel closed. Both accused then came near them at the water outlet. He asked accused persons as to why they closed the outlet. Accused No. 1 Pyarelal was holding Sabbal and accused No.2 - Shyama was holding khatawa. Accused No.1 - Pyarelal told him that he was taking Sabbal to his house. P.W. 1- Shivchand told accused that they were opening outlet and Pyarelal asked them, not to do so. This resulted in exchange of words. Both sides talked with each other for few minutes. P.W.1 and Shivchand then told accused persons to go to their village and expressed that they would return to their village. Then deceased Shivchand proceeded ahead of P.W.1 for returning to his village and P.W.1 followed him. As soon as P.W.1 turned, Pyarelal delivered a sabbal blow on his left hand. PW-1 Mulchand turned in his direction and Pyarelal delivered second blow with Sabbal which struck Mulchand on head. Mulchand fell down in the tank due to imbalance. Both the accused persons then rushed to Shivchand. He also started proceeding towards Shivchand. Accused No.1 - Pyarelal gave first blow of Sabbal on the head of Shivchand and he delivered total three blows. Accused No.2 Shyama also gave 4 to 5 blows by khatawa. Both accused then went towards their fields. Shivchand was lying on the bank of tank. P.W.1 returned to his village, narrated the incident to P.W.1-Bharat and P.W.5 -Shivaji. All of them then went to spot. He then speaks of lodging of police report (Exh. 18), printed FIR (Exh.19). Because of injury on his left hand and head, he was sent to hospital for treatment by police authorities. He identified article 'A' as Sabbal with accused No.1 - Pyarelal and article 'B' as khatawa with accused No.2 - Shyama. All of them then went to spot. He then speaks of lodging of police report (Exh. 18), printed FIR (Exh.19). Because of injury on his left hand and head, he was sent to hospital for treatment by police authorities. He identified article 'A' as Sabbal with accused No.1 - Pyarelal and article 'B' as khatawa with accused No.2 - Shyama. He also identified cloths on the person of the deceased - Shivchand and photographs of the spot of the incident. His cross examination by the advocate on behalf of accused No.1 shows that accused No. 1 & 2 resided in different villages. He accepted that accused No.1 Pyarelal took water from one outlet while accused No. 2 - Shyama from other outlet. Width of the bank of water tank is about 4 to 5 feet. He denied that height of the bank of that tank was about 35 feet and volunteered that it is about 20 feet. He further stated that there were tur plants on the bank of the tank at the time of incident and there was no electric pole or light on said bank. He stated that he and Shivchand went to bank to remove the obstacles in the flow of water. He also accepted that khatawa is used for digging the ground. He denied that he fell down when accused No.1 - Pyarelal gave a Sabbal blow on his hand. He denied that accused No.1 was not holding Sabbal. He denied that on that date P.W.1 and deceased - Shivchand both were drunk and there was quarrel between both of them under influence and during that quarrel, he fell in tank. He states that his statement was recorded by the police 4 to 5 days after lodging of report. He denied that after falling in the tank he did not see accused persons while beating Shivchand. He denied that he was having Sabbal and Shivchand was having khatawa. He denied that they threw away these articles. He denied that accused No.1 did not beat him. He denied that he sustained injury due to fall. His cross examination by the advocate on behalf of accused No.2 - Shyama shows a suggestion that he beat Shivchand and accused No.2 - Shyama was not present on the spot. He denied that they threw away these articles. He denied that accused No.1 did not beat him. He denied that he sustained injury due to fall. His cross examination by the advocate on behalf of accused No.2 - Shyama shows a suggestion that he beat Shivchand and accused No.2 - Shyama was not present on the spot. He has stated that on that date at 10.00 A.M. Shivchand and P.W.1 went to clear flow of water to the field. He denied that at that time light paddy crop was sown in his field. He stated that they stayed there for about one hour while giving water to the field and he has not seen wife of Shyama in her field. 11. Report of Chemical Analyser at Exh. 51 dated 21.04.2006 shows that ethyl alcohol was found present in it. A perusal of evidence of P.W.3 - Medical Officer reveals that Medical Officer saw two external injuries on Shivchand i.e. Lacerated wound 10 cm x 1½ cm on left tempo parietal region of scalp/oblique in direction, bleeding present. Lacerated wound 5 cm x 1 cm on right temporal parietal region of scalp vertical in direction, bleeding injury." Internal injuries corresponding to external injuries are mentioned by the Doctor. The Doctor has stated that said injuries were sufficient in ordinary course of nature to cause death. The Doctor has also stated that he examined weapons i.e. Sabbal and khatawa on 21.10.2005 and opined that injuries on the deceased could have been caused by any such weapon. In cross examination, he has stated that except two injuries on the head of the deceased, he did not notice any external injury on other part of the body. He found blood stains on single side of Article 'A' i.e. Sabbal. He further stated that both external injuries mentioned in column No. 17 of Post Mortem report (Exh. 23) may be caused due to sharp edged article sabbal. However, he immediately corrected himself to state that he found blood on both edges of Article' A' sabbal at one end. He has stated that sharp edged weapon may produce injuries like incised wound, stab wound or lacerated wound. The edges of injuries will be clear in case of incised and stab injuries. He denied that two injuries in column No. 17 of post mortem report cannot be caused by Article' A' Sabbal. He has stated that sharp edged weapon may produce injuries like incised wound, stab wound or lacerated wound. The edges of injuries will be clear in case of incised and stab injuries. He denied that two injuries in column No. 17 of post mortem report cannot be caused by Article' A' Sabbal. During cross-examination by counsel for accused No. 2 - Shyama, he accepted that such injuries may be caused by fall from 15 to 20 feet. However, he volunteered that other injuries may also be caused due to such fall. 12. P.W.9 - Suresh Bhurya Police Inspector has deposed that he arrested both the accused on 12.10.2005. Accused No.1 then made a statement on 15.10.2005 and accordingly, a memorandum was prepared. Thereafter they proceeded to spot where Pyarelal took out a Sabbal from the bushes on the bank. It was seized. In cross examination, he has stated that he had not attached arrest panchnama along with charge sheet. He denied that on 15.10.2005 accused No.1 - Pyarelal did not make any statement and there was no recovery at his instance. He accepted that tank is owned by government and people pass on foot over said bank. He denied that he did not seize cloths from accused No.1 - Pyarelal. He also denied that he did not seize cloths of accused No.2 - Shyama. 13. The statement made by accused No.1 - Pyarelal under S.27 is duly proved or record. The recovery of a Sabbal (Article' A') has also been established. 14. The fact that Article 'A' was stained with blood and Chemical Analyser's report has found accordingly, is also not in dispute. The blood on (Exh. 18) is found to be human but group thereof could not be determined. Exh.18 is this iron rod or Sabbal. Chemical Analyser could not determine blood group of accused No.1 - Pyarelal or accused No.2 - Shyama. The blood group of Mulch and Shivchand is found to be 'O'. Khatawa is Exh.1. It is found to be stained with blood. Blood on blade and handle of said khatawa is found to be of group 'O'. Though this report mentions plastic shoes and some cloths from Exh. 5 to Exhs. 13/14, the cloths cannot be connected with any particular accused in the absence of any material on record. Khatawa is Exh.1. It is found to be stained with blood. Blood on blade and handle of said khatawa is found to be of group 'O'. Though this report mentions plastic shoes and some cloths from Exh. 5 to Exhs. 13/14, the cloths cannot be connected with any particular accused in the absence of any material on record. The finding of trial Court that blood group of P.W.1 - Mulchand and deceased - Shivchand was found on cloths of both the accused is, therefore, not supported by record. 15. The only person who has deposed about attack on Shivchand is P.W.1 Mulchand. He has stated that he fell down in the water tank i.e. at the depth of about 20 feet. He has denied that from the place where he fell, he could not have seen the deceased-Shivchand or alleged attack on Shivchand. His evidence shows that first blow on the head of Shivchand was given by Pyarelal with Sabbal, thereafter he delivered three blows on the person of Shivchand. He has claimed that accused No.2 - Shyama also delivered 4 to 5 blows by khatawa on Shivchand. The injuries on Shivchand are found to be only two by P.W.3 - Dr. Kanchan. The said Doctor has found no other injury on the body of the deceased. It is, therefore, apparent that except for two injuries on the head of Shivchand, the deceased Shivchand did not suffer any other injury. This Medical evidence, therefore, militates with oral evidence of P.W.1. P.W.1 had fallen down after attack. If his contention is correct, in the meanwhile, accused may have rushed towards Shivchand. Thus, attack on Shivchand may have been within very short time after attack on P.W.1. 16. At this stage, it is important to note that the blood stained Sabbal (iron rod) has been recovered from bushes in which it was hidden by accused No.1 - Pyarelal after following procedure under Section 27 of the Evidence Act. There is no such recovery of Khatawa. Khatawa is claimed to be found lying by the side of dead body. Khatawa is also claimed to be blood stained as per Chemical Analyser's report. There is blood also on its blade i.e. sharp side but then there are no incised wounds on Shivchand. If one weapon could be hidden, we find it difficult to accept that khatawa would be left at the spot. Khatawa is also claimed to be blood stained as per Chemical Analyser's report. There is blood also on its blade i.e. sharp side but then there are no incised wounds on Shivchand. If one weapon could be hidden, we find it difficult to accept that khatawa would be left at the spot. In any case, use of khatawa for assault has not been established beyond doubt. Moreover, the weapon khatawa has not been linked with accused No.2 - Shyama. 17. The attack begins when accused No.1 - Pyarelal gives blow of Sabbal on left hand of PW-1 Mulchand and then another blow struck on the head of Mulch and Accused No.2 - Shyama is not party to this attack. The trial Court, therefore, has found Shyama not privy to this attack and, therefore, found it not possible to use Section 34 of I.P.C. against Shyama. Shyama had no intention to attack PW-l Mulchand & hence, it is difficult to accept that he developed such an intention to assault deceased Shivchand within fraction of seconds thereafter, in absence of any express convincing evidence about his partipation in attack on deceased. It is apparent that accused 1 Pyarelal has exhibited that intention by inflicting two blows on PW-1. In the light of consideration supra, we find that accused No.2 - Shyama cannot be associated with attack on Shivchand also. The material on record falls short for said purpose. As Chemical Analyser's report cannot be used to show that cloths of accused No.2 - Shyama were having blood stains, it is not necessary to give accused No. 2 - Shyama an opportunity to explain a finding against him in that report. 18. Merely because some alcohol is found in the viscera of the deceased Shivchand, we cannot hold him responsible for starting any altercation. The outlet of water from water tank was closed and Shivchand and Mulchand only wanted to open it. It appears that thereafter they also wanted to return to their village. At that stage, Pyarelal became aggressor. We, therefore, do not find that attack has been at the spur of moment or in heat of passion. In any case, after first attack on Mulchand, after he fell down, accused No.1 proceeded further and attacked Shivchand. We find that two blows of Sabbal were inflicted causing fatal injuries on vital part of the body. We, therefore, do not find that attack has been at the spur of moment or in heat of passion. In any case, after first attack on Mulchand, after he fell down, accused No.1 proceeded further and attacked Shivchand. We find that two blows of Sabbal were inflicted causing fatal injuries on vital part of the body. As such, it cannot be said that Pyarelal had no intention to commit murder of the deceased-Shivchand. 19. Taking overall view of the matter, we find that the appellant - Shyama Tukaram Sahare in Criminal Appeal No. 362 of 2007 could not have been convicted for the offence under Section 302 of I.P.C. for committing murder of Shivchand. The conviction of the appellant - Pyarelal Mangasu Tumsare, in Criminal Appeal No. 478 of 2011, is however, liable to be maintained. Consequently, the following order is passed: Criminal Appeal No.478 of 2011 is hereby dismissed. The conviction and sentence as passed against the appellant Pyarelal Mangasu Tumsare is hereby confirmed. Criminal Appeal No. 362 of 2007 is hereby allowed. The conviction and sentence of the appellant Shyama Tukaram Sahare for the offence punishable under Section 302 of the Indian Penal Code is hereby set aside. The appellant Shyama Tukaram Sahare is in custody. He be set at liberty forthwith, if not required in connection with any other case. Fine, if paid, be refunded to the appellant Shyama Tukaram Sahare. Rest of the order including as regards to the disposal of the property is hereby maintained. Ordered accordingly.