learned counsel for the accused, saying that the evidence given
in earlier paragraph did not mention that when the complainant
reached the spot, he saw the accused hitting. I do not find that
the evidence can be read in the manner in which the learned
counsel is trying to do. A witness that too from a village may not
be very good in narrating facts in a sequence. That does not
mean that his evidence in subsequent paragraph is to be read as
contradiction only because in earlier paragraph in the sequence
of events stated by the witness particular fact was not stated at
the correct place. The evidence has to be read as a whole.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.434 OF 2000
Murlidhar s/o Namdeo ThiteV The State of Maharashtra,
CORAM: A.I.S. CHEEMA, J.
DATED: 21st August, 2014.
Date of pronouncing judgment : 21st August, 2014.
Citation:2016 ALLMR(CRI)2659
1. Appellant Murlidhar Namdeo Thite (hereinafter
referred as 'accused') has been prosecuted in Sessions Case
No.127/1996 before 2nd Adhoc Additional District & Sessions
Judge, Shrirampur under Section 302 of the Indian Penal Code
(IPC in brief), but came to be convicted under Section 325 of the
IPC and has been sentenced to suffer rigorous imprisonment for
four years and to pay fine of Rs.5000/-. In default of fine, he
has been directed to suffer rigorous imprisonment for one year.
Being aggrieved by the conviction and sentence, present appeal
was filed.
2. The case of prosecution, in brief, is as under :
(a) On 30.11.1995, Police Patil Vilas Dahatonde (P.W.1) of
village Chanda, Taluka Newasa, filed F.I.R. with Police
Station, Sonai. He reported that, the accused resides at
the village with his family, which includes Vatsala
(hereinafter referred as the 'victim'), who is his sister
and who is crippled and has to crawl on floor to move.
On that day of 30.11.1995, in the afternoon at around
3.00 p.m., complainant Vilas was in front of Society
office and noticed commotion from the side of house of
accused and people were saying that the accused has
severely beaten his crippled sister Vatsala. At the same
time, he saw one Dnyandeo Namdeo Nagpure (P.W.2)
bringing accused from his house towards Flour Mill, but
the accused got himself released from the hands of
Namdeo and again ran towards his own house and so,
the complainant also ran behind the accused. Accused
was beating his sister Vatsala by hand on her chest and
face and so, the complainant, along with Dnyandeo held
accused and pulled him aside. As Vatsala had been hit
on her chest and face, there was blood coming out from
her mouth and her eyes had swollen. Nearby, there
were ladies, one Baju Mohammad Shaikh and others as
well as Ashok Chandekar. When asked, accused stated
that, the articles he was bringing home were being
distributed by the victim and so he had beaten her.
Complainant informed Police Station, Sonai on phone
and police vehicle came and took Vatsala to
Ahmednagar and the complainant had come to the
Police Station to give the F.I.R.
(b) Offence on the basis of F.I.R. as above was registered.
Subsequently, on 3.12.1995, by way of supplementary
statement, complainant added that, Ashok Chandekar
had informed that the victim had expired in the hospital
on 1.12.1995 at 3.30 p.m.
(c) Police Naik Shankar Damle (P.W.11) had received the
police message that accused had beaten his sister and
so he sent police jeep to Chanda and the victim was
shifted to Hospital, Ahmednagar. The accused was
brought to police station and he was arrested on
30.11.1995 at 18.10 Hrs. The offence had been
registered at 18.05 Hrs. Police Naik Shankar Damle
attached the blood stained shirt and paijama of the
accused as per panchanama. The panchanama was
signed by A.P.I. Gajbhiv, (who expired by the time
matter came up for evidence in the Court). The police
drew spot panchanama which was the Ota of the house
of accused and from there, collected blood stained earth
as well as simple earth. Statements of witnesses were
recorded. When accused was arrested, it was noticed
that he had injury to his palm and he was got medically
examined. The clothes of the victim were also seized
under panchanama and they had blood stains. Police
sent the clothes of the victim as well as the clothes of
the accused and samples of earth taken from the spot
to Chemical Analyser and report was received. After
the investigation was completed, P.S.I. Bhagwat Misal
(P.W.12) filed charge sheet.
3. Charge sheet was filed in the Court of Judicial
Magistrate, First Class, Newasa. The offence being Sessions
triable, matter was committed to the Court of Sessions. In the
Court of Sessions, prosecution brought on record documentary
evidence as well as oral evidence of 13 witnesses. In the Court,
defence taken by the accused was of denial. It was claimed that,
the complainant is deposing against the accused due to political
rivalry.
4. The trial Court, after considering the evidence
brought before it, held that, culpable homicide was proved, but
offence under Section 302 of IPC was not made out and also held
that, the accused was not liable for conviction under Section 304
of IPC, but that, offence under Section 325 of IPC was
established and convicted and sentenced the accused as
mentioned above.
5. I have considered the grounds raised in the appeal
and reading the same with what has been argued before me,
what the appellant- accused is claiming is that, other than
complainant Vilas (P.W.1), other witnesses said to be eye
witnesses of the incident, P.W.2, P.W.3, P.W.7 and P.W.10 are
hostile. The panchas of the seizure of clothes of accused are also
hostile. There are contradictions and omissions in the evidence of
complainant P.W.1 Vilas. The evidence of doctor is that, the
injuries which were caused to the victim could be caused by
sitting on the person of the victim and giving of the blows, but
there is no evidence that the injuries were caused after sitting on
the person of the victim. The evidence of complainant in para
No.4 shows that when he went to the spot, he saw the victim
was lying on the Ota with blood oozing from her nose and mouth
and he claimed that he informed police. In next paragraph No.5,
the complainant deposed that, when he went to the house of
accused, he saw the accused beating his sister by fist blows.
Thus, according to the counsel, the evidence in para No.4 of
complaint does not fit in sequence. It has been alternatively
argued that, the sentence imposed is too harsh and may be
reduced. The accused was in jail for 19 days during pendency of
the trial and after conviction he was in jail for two months and
the accused can be let off by reducing the sentence to one
already undergone as the incident occurred on 30.11.1995 and
now many years have been passed.
6. Per contra, the learned A.P.P. argued that the
evidence of the complainant, supported by the evidence of doctor
as well as evidence of other witnesses, though hostile, does show
that the incident did take place as claimed by the prosecution.
Complainant was police patil and no real good reason is shown as
to why he would depose against the accused. The evidence of
doctor was that the injury was sufficient in ordinary course of
nature to cause death and that the injuries of the victim were not
possible by fall as tried to be suggested in defence. According to
the A.P.P., the conviction and sentence needs to be maintained.
7. Evidence of P.W.1 complainant Vilas Dahatonde
shows that, the accused, resident of village Chanda, had the
victim, his sister, who was not able to walk and used to crawl.
Her legs had been affected and she was lame person. Regarding
this fact, there is no dispute. Evidence is that, on 30.11.1995 at
about 3.00 - 4.00 p.m., complainant was present in the office of
Chanda Society and there was hue and cry from the side of
house of accused and complainant saw number of persons
proceeding towards house of accused. One Ashok Chandekar
(P.W.10), (who has turned hostile and has been discredited, in
the evidence of investigating officer), called complainant and the
complainant went to the house of accused. The distance from
the Society to the house of accused was about 400 – 500 ft.
According to complainant, he saw that number of persons had
gathered there and he saw the accused who was on the Ota of
his house. The victim was lying on the Ota and blood was oozing
from her nose and mouth. Her eyes had swollen and her
condition appeared to be serious. According to the complainant,
he informed the police, and police van came and victim was
removed for treatment. Till that time, the victim was alive. The
victim was taken to the Civil Hospital, Ahmednagar and
complainant went to police station and filed F.I.R. Exhibit 10. In
the further examination-in-chief, the complainant deposed (in
para 5) that when he had gone to the house of the accused, he
saw him beating his sister Vatsala with fist blows and, therefore,
he and one Dnyandeo caught the accused and pulled him aside.
This evidence of the complainant has been criticized by the
learned counsel for the accused, saying that the evidence given
in earlier paragraph did not mention that when the complainant
reached the spot, he saw the accused hitting. I do not find that
the evidence can be read in the manner in which the learned
counsel is trying to do. A witness that too from a village may not
be very good in narrating facts in a sequence. That does not
mean that his evidence in subsequent paragraph is to be read as
contradiction only because in earlier paragraph in the sequence
of events stated by the witness particular fact was not stated at
the correct place. The evidence has to be read as a whole. The
evidence of complainant does show that, after hearing the
commotion, when he went to the spot, he saw the accused
beating his crippled sister on the Ota by fist blows. His F.I.R.
also supports the complainant in this regard that he and
Dnyandeo did in fact pull aside the accused from the victim.
8. It has been argued that, the evidence of complainant
does not show that he was sitting on the person of the victim and
hitting her. If the evidence is to be properly appreciated, it can
be seen that, the victim was a crippled person, who could not
even stand. If the accused was giving fist blows to her mouth,
he has to bend down upon the victim and hit her. In such
situation, whether he was actually sitting on her person or bent
on her person and beat her, hardly makes a difference.
9. The further evidence of complainant is that, when he
and Dnyandeo pulled aside the accused from the victim, they
asked him as to why he beat his sister and accused told that she
used to distribute household articles to others and so he had
beaten her. This is in the nature of confession. It is apart from
the fact that the complainant saw the accused beating his sister.
10. The F.I.R. was filed almost immediately after the
incident and in the F.I.R. it was mentioned that the complainant
saw P.W.2 Dnyandeo taking away the accused from his house
but accused again getting himself released and going and beating
his sister. The evidence of complainant is also showing that he
and Dnyandeo did intervene to save the victim. P.W.2
Dnyandeo, however, turned hostile and was confronted with his
police statement. The portions 'A' to 'D' of this witness have
been proved from the evidence of P.W.11. It shows that, P.W.2
does not have regard for truth.
11. P.W.2 Dnyandeo deposed that, at 6.00 p.m., there
was incident at the house of accused and claimed that, the victim
had sustained injury and she was lying near the Ota and the
accused was present in the house. He backed out from his police
statement that he had seen that the accused had beaten his
sister. The witness was apparently suppressing truth as he
deposed that the incident took place at 6.00 p.m. although the
record shows that by 6.05 p.m. even the offence had been
registered at police station.
12. P.W.3 Bhimraj Thite was also examined as eye
witness. He deposed that he resides near the house of accused.
Accused was residing with his mother and brother. He had
Vatsala as his sister, who was lame. He deposed that, the
incident took place on 30.11.1995 at 3.00 p.m. According to
him, he was sitting near the office of Society and there was hue
and cry from the side of house of accused and when he went
there, he saw that Vatsala was on the Ota and the accused was
caught by the people. The victim was lying on the Ota and there
was bleeding from her mouth. There was swelling to her face.
The accused was brought towards flour mill by some persons.
P.W.3 did not agree with the prosecutor that the accused had
escaped from near the flour mill and again went back to the
house, and the witness was declared hostile. The witness was
confronted with his statement to police, Portion 'A' in this regard
and the portion has been proved from the evidence of P.W.11
Investigating Officer Shankar Damle. However, the witness in
further evidence did depose that, there was bleeding from the
nose and mouth of the victim and then they took the accused
towards the office of Society. It is deposed “We asked him as to
why he beat his sister Vatsala and he told me and other persons
that since she used to distributed household articles to other
persons, he beat her”. Thus, this witness also, although he was
hesitant to accept that he saw the accused beating his sister,
deposed of accused confessing to have beaten his sister, as she
used to distributed household articles. This is, something which
is in the evidence and F.I.R. of complainant. If the crossexamination
by accused of P.W.3 Bhimraj is perused, he stated
that, he did not ask the victim anything and claimed that she was
not in a position to speak. In the cross-examination by accused,
he deposed that, there was no talk between himself and the
accused on that day. This evidence in cross-examination cannot
be read to mean that the confessional statement made to this
witness and others, as referred to above, was not stated. It is
one thing for a person to himself talk with another and another
thing to hear the person say something to a group of persons.
There is no denial of the evidence of P.W.3 that accused made
confessional statement as above, in the cross-examination done
by the accused. The evidence of P.W.3 corroborates the
complainant regarding complainant informing police on phone
and police coming and taking the victim for treatment and death
of the victim subsequently on 1.12.1995.
13. P.W.2 Dnyandeo turned hostile that police had
prepared scene of offence panchanama. He admitted his
signature, but was not ready to admit anything else. However,
P.W.3 Bhimraj deposed in the cross-examination by A.P.P. that,
panchanama was drawn in respect of the scene of offence and
there were blood stains on the Ota. The panchanama is at
Exhibit 13. He deposed that, police attached blood stained earth
and simple earth during panchanama in his presence. In the
cross-examination, of course, he stated that he simply signed the
panchanama and does not know what are the contents. However,
the evidence of P.W.11 Police Naik Shankar Damle shows that,
on 1.12.1995 he had gone to the scene of offence along with
A.P.I. Gajbhiv and the spot panchanama was drawn in the
presence of the panchas. Thus, the scene of offence
panchanama is proved. The panchanama Exhibit 13 shows that
the spot was on the Ota in front of the house of the accused. The
scene of offence panchanama (Exhibit 13) needs to be read with
the evidence of P.W.6 Circle Officer Machhindra Barde, who
prepared the map (Exhibit 17). It shows a big Ota and from the
door of the house at about 15 ft., from the door, on the Ota the
actual spot is shown in red colour. The spot panchanama
(Exhibit 13) shows that the Ota and the house are on height and
there are stairs to come down. In fact, if the cross-examination
of witnesses is perused, there is hardly any dispute regarding
details of the spot. Rather, it was brought in the crossexamination
of P.W.2 Dnyandeo that there are foot steps to the
house of the accused and the house is situated at a level of 7-8
ft. from the ground and the Ota is in front of the house. It was
suggested, and the witness supported the accused that there are
stones around the Ota i.e. plinth of the Ota is of stones and even
the foot steps of the house are of stones.
14. Then there is evidence of P.W.7 Banobi @ Sagrabi
w/o Mohd. Shaikh. She also deposed that the sister of accused
was crippled one. Her evidence shows that, the incident took
place at about 3.00 p.m. and she saw that the victim was lying
on the Ota of her house. According to this witness, one has to
pass the house of the accused while proceeding towards the flour
mill. She deposed that, when she saw the sister of accused was
lying on the Ota, she asked him to lift her. She claims that, she
abused the accused. She was not ready to support the
prosecution that she saw the accused beating the sister and thus,
was declared hostile. The portions from her statement to police
were regarding the details of incident of she seeing the accused
beating the victim, were proved in the evidence of P.W.11.
Although this witness turned hostile, in the cross-examination,
she deposed that, there was bleeding from the mouth of the
victim. She accepted that it was true to suggest that accused
was caught by some persons and he was taken to flour mill and
by giving jerk, he came back towards his house. Although this
witness preferred to not support the prosecution and has been
discredited, still her evidence does show that, people were
catching the accused and the victim was lying on the Ota in
bleeding condition. There was no reason for her to abuse the
accused, as deposed by her in her examination-in-chief, if there
was no cause. Thus, although the witness is not supporting the
prosecution, the evidence does strengthen the judicial mind in
believing the evidence of complainant P.W.1 Vilas.
15. Learned counsel for the appellant- accused argued
that, there are contradictions and omissions in the evidence of
complainant. Reference was made to the cross-examination. In
examination-in-chief, the witness has deposed that the victim
was 30 years old and so, when confronted with the F.I.R., where
the age was given as 38, the witness stated that he had told the
age approximately. Now this is hardly of any substance. In the
cross-examination, the witness stated that he has not stated the
name of Ashok Chandekar in his complaint. In fact, the witness
had stated so, if F.I.R. Exhibit 10 is perused regarding the
presence of Ashok Chandekar on the spot. Thus, while recording
the evidence, proper care was not taken. It was also argued
that, although the witness deposed that there was bleeding from
the nose and mouth of the victim, in his F.I.R. he has not
deposed that there was bleeding from the mouth and nose of the
victim. The F.I.R. does show that, the complainant had stated
that there was bleeding from the mouth of the victim. The
manner in which the victim had been beaten, as seen from the
medical evidence, this omission regarding bleeding from nose is
hardly material. The F.I.R. is not encyclopedia or examinationin-chief
in advance. The said omission is not material.
16. In the cross-examination of complainant, he was
suggested, but he denied that he takes part in politics or that the
accused is his political rival. The complainant denied that, on
account of enmity he was deposing against the accused. Mere
suggestions are not sufficient to find that the complainant was
indulging in any politics or that there was any political rivalry or
enmity.
17. P.W.4 Subhash Salve and P.W.5 Sunil Kakade, the
panchas of seizure of clothes of accused, turned hostile and did
not support the prosecution. P.W.11 Police Naik Shankar
deposed that he attached the shirt and paijama of the accused
which had blood stains and which were Articles 1 and 2 before
the Court. He deposed that, the clothes were siezed and labels
were affixed and panchas signed on it and he identified signature
of A.P.I. Gajbhiv, who was no more alive. Although this witness
deposed that he had attached shirt and paijama with blood stains
and regarding the same panchanama was drawn, the trial Court
did not mark the document exhibit. P.W.11 brought on record
the evidence that the clothes of the victim seized vide
panchanama (Exhibit 20) (proved by P.W.8 Raosaheb) and the
blood stained and simple earth seized from the spot as well as
clothes of the accused were sent to Chemical Analyser and the
report is at Exhibit 28. The C.A. report showed that the blood
sample of earth taken from the spot and the clothes of the victim
had blood Group “O”. The blood group on the clothes of the
accused could not be determined although it was human blood.
Even if this evidence regarding human blood being found on the
clothes of accused is to be ignored as seizure of the clothes of
accused is not duly established, still looking to the other evidence
regarding the incident, this is not material.
18. The inquest panchanama was admitted by accused
and the same is at Exhibit 8. the evidence of P.W.9 Dr. Ambadas
Sase, read with the post mortem report Exhibit 22 shows that, he
found the following injuries on the person of the victim :-
(1) Swelling at left maxilla 4x3x2 cm. Reddish brown
in colour.
(2) Swelling at right maxilla 3x3x2 cm.
(3) Swelling at frontal area above hair line on right
side, 3x2x2 cm.
(4) Swelling at nasal bridge 2x1x1 cm.
(5) Swelling at left angle of mandible.
On palpation, he also found following injuries :-
(1) Fracture nasal bridge.
(2) Fracture at left angle of mandible.
On internal examination, he found the following
injuries :-
(1) Large hematoma at right frontal area at swelling
site about 3x2 cm. over brain substance
(Subdural)
According to the evidence of doctor, the victim died
on account of hematoma at right frontal area and fracture at left
angle of mandible. His evidence is that, the injuries were
sufficient to cause death in ordinary course of nature. The doctor
deposed that, the injuries were possible with the help of fist
blows i.e. in case a person inflicted the fist blows by sitting on
the person i.e. on the chest. Thus, the evidence of the doctor
proves that the victim died due to injuries given to her by fist
blows. I have already discussed that the argument that the
evidence of complainant does not prove that the accused was
sitting on the person of victim and beating her, has no
substance. The doctor deposed that, the injuries which were on
the person of the victim, were not possible by fall on hard
surface. In the cross-examination by the accused, the doctor
denied that the injuries were possible if the person goes down of
foot steps which is of stones. It is to be recalled that from the
mouth of P.W.2 Dnyandeo, it has been brought on record the
evidence that steps of the house of the accused are of stones.
The other suggestion was given to the doctor that the injuries
were possible by fall from Ota. Even this suggestion has been
denied by the doctor. Thus, suggestions of defence of injuries by
fall have no force. The evidence clearly established is that, the
injuries of the victim were due to fist blows given to her, which is
case of prosecution.
19. Then there is evidence of P.W.13 Dr. Maroti
Darandale. He deposed that, he examined the accused on
30.11.1995 at Primary Health Centre, Sonai at about 8.30 p.m.
and he found that the accused had :- “contusion redness,
tenderness on dorsal of right hand”. The age of the injury was
within 6 hours. The opinion given by the doctor is that, such
injury is possible to person while inflicting fist blows to another
person. The doctor proved the medical certificate Exhibit 32 and
deposed that the accused had told him the history of the injury
as alleged assault on 30.11.1995 at 3.00 p.m. Even if this
history given by the accused is ignored as at that time he had
been brought there by police, the fact remains that the doctor
found injury to the hand of the accused which was possible
because of the accused giving fist blows to another person. This
also lends credence to the evidence of complainant P.W.1 Vilas
read with the other evidence available and discussed above.
20. Considering the above oral evidence of complainant,
partly supported by other witnesses, as discussed above, and
looking to the immediate F.I.R., inspiring confidence, read with
the medical evidence of the victim as well as the accused, I find
that, the prosecution duly established that the accused had given
severe fist blows to his crippled sister, causing grievous injuries
as found in the post mortem report, and the victim died due to
such injuries given by the accused.
21. Prosecution did not file any appeal against the
findings of the trial Court that offence under Sections 302, 304 of
IPC was not established. Thus, I am not going into those
aspects. The trial Court held the accused guilty of section 325 of
the IPC. I concur with the findings of offence under Section 325
of the IPC being established although for reasons as discussed
above.
22. The counsel for the appellant- accused relied on
following cases to argue that in those matters, the accused were
released for sentence already undergone due to passage of long
period.
1) Ramdas Vs. State of Madhya Pradesh
2009(4) SCC 57
2) Ramesh Gopinath Jadhav & ors. Vs. State of Maharashtra
[2011(4) Mh.L.J. (Cri.) 687]
3) Pandurang s/o Tukaram Shinde Vs. State of Maharashtra
[2011(2) Mh.L.J. (Cri.) 332]
4) Ankush s/o Laxman Gade &ors. Vs. State of Maharashtra
[2011(4) Mh.L.J. (Cri.) 102]
5) K. Malles Rao Vs. The State
[1986 CRI.L.J. 427]
23. It was argued that, in the present matter, the
accused has undergone imprisonment of two months and 19 days
and so, he may also be let off with sentence of period already
undergone.
24. In the matter of “Ramdas Vs. State of Madhya
Pradesh” (supra), the facts were different. There, initially, the
F.I.R. was filed under Sections 323, 324, 504 read with Section
34 of the IPC. Sessions Court in trial convicted accused under
Section 307 of IPC, which was converted to Section 324 of IPC by
High Court. Observations of the Hon'ble Supreme Court show
that, in that case, there was all of a sudden altercation between
the appellant and the deceased on the issue of payment and a
single blow of sickle had been inflicted. The death had not taken
place due to the direct result of the injury, sustained by the
victim in that matter. Thus, the Hon'ble Supreme Court had
given benefit.
In the matter of “Ramesh Gopinath Jadhav & ors. Vs.
State of Maharashtra” (supra), the conviction and sentence was
for offence under section 323 read with Section 34 of the IPC and
the appellants N.1 and 2 therein had already undergone sentence
of 109 days and 34 days respectively and there was lapse of 18
years and so, the benefit was given.
In the matter of “Pandurang s/o Tukaram Shinde Vs.
State of Maharashtra” (supra), the offence was under Section
325 of the IPC and considering the facts of that matter, the
rigorous imprisonment of three months was reduced.
In the matter of “Ankush s/o Laxman Gade &ors. Vs.
State of Maharashtra” (supra), the conviction and sentence was
under Section324 of IPC and lapse of 14 years was taken into
consideration.
In the matter of “K. Malles Rao Vs. The State”
(supra), the appellants therein had undergone imprisonment of
about 3 and half years and so, sentence undergone was
considered when conviction was under Section 325 of the IPC.
25. Thus, the rulings relied on by the appellant- accused
had their own facts and circumstances. If the facts and
circumstances of the present matter are considered, it can be
seen that, it was not a case pure and simple of Section 325 of
IPC. It was a case where the crippled and handicapped sister of
the accused, who was a helpless woman, was ruthlessly beaten
by the accused. All his manhood he took out on the poor victim.
She was so badly beaten that she could not even make any
statement and soon expired. The accused did not show pity to
his own handicapped sister. It is surprising that the accused
expects pity from the Court. The helpless victim was done away
to death due to the fist blows given by the accused. In the
absence of appeal by State and considering lapse of time, I am
not entering into consideration of conviction under higher
Sections of Indian Penal Code. While maintaining the conviction,
I do not think that this is a case which calls for leniency looking
to the manner in which the victim was beaten mercilessly. Mere
passage of time cannot be reason to let the accused walk away
with just two months and 19 days of imprisonment. It would be
disproportionate to the acts committed by the accused. He
deserves to undergo the punishment for the crime proved. The
sentence imposed cannot be said to be disproportionate to the
offence.
26. There is no substance in the appeal. The appeal is
dismissed. The appellant- accused to surrender to his bail bonds
and suffer the sentence.
(A.I.S. CHEEMA, J.)
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