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CASE NO.: Appeal (crl.)  1200 of 2006

PETITIONER: Manilal Hiraman Chaudhari

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 09/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T   

S.B. SINHA, J :

1.      One Manilal Hiraman Chaudhari is before us being aggrieved by and  dissatisfied with the judgment and order dated 17.10.2005 passed by a  Division Bench of the High Court of Judicature at Bombay, Aurangabad  Bench at Aurangabad.   

       Appellant herein along with Anil Shivram Pawar (Accused No.1),  Premraj Hirman Chaudhary (Accused No. 3) and Bapu @ Gangaram  Shantaram Salunkhe (Accused No.4) were tried for committing the murder  of one Bhaulal Jadhav.  Bhaulal Jadhav was an accused in a case of murder  of the father of the appellant and accused No. 3.  Allegedly, when  cremation  of Hiraman was taking place, the appellant took a vow     to take revenge of  murder of his father.   Bhaulal (deceased) on or about 13.02.1991 at about  11.00 a.m. was going to Jalgaon on a motorcycle.  He was accompanied by  Lotu Eko Patil (PW-4).  When they were at distance of about 3 k.m. from  Jalgaon, the accused persons who were in a Maruti van parked the vehicle  by the side of road got down.  The motorcycle was stopped by Accused Nos.  2, 3 and 4.  Premraj (Accused No. 3) is said to have caught hold Bhaulal and   Manilal (Accused No.2) and Gangaram (Accused No. 4) inflicted stab  injuries with knives.  An attempt to rescue the deceased by PW-4 resulted in  a threat to him, whereupon he started running towards Jalgaon.  Bhaulal also  tried to save himself by running away from the said place.  He was chased  by Accused Nos. 2 and 3 and was again assaulted with  knives.   

       PW-4 immediately went to the Taluka Police Station Jalgaon on a  vehicle of a passer by.  A First Information Report was lodged at about  11.45 a.m.   Bhaulal was taken to the hospital in a tractor.  At about 12.45  p.m. he died.   

2.      At the trial,  the prosecution examined 17 witnesses.  Lotu Eco Patil  (PW-4) and Govinda Shamrao Marathe (PW-5) were examined as eye- witnesses to the occurrence.   

3.      We have noticed hereinbefore that PW-4 was the informant.  PW-5  was the driver of the Maruti van, which was taken on hire by the accused  persons.  They had gone to Onkareshwar and Saptashringi Gad in the  District of Nasik.  The learned Trial Judge upon considering the evidence  brought on record convicted all the accused persons under Section 302 read  with Section 34 and Section 120B of the Indian Penal Code (IPC).  The High  Court by reason of the impugned judgment in the criminal appeal filed by  the accused persons, however, set aside the conviction and sentence of  Accused No.1.  Accused Nos. 2, 3 and 4 were convicted under Section 302  read with Section 34 IPC.  Accused Nos. 2 and 3 were also convicted under  Section 341 read with Section 34 IPC.  Accused No. 2 was further convicted  under Section 506 IPC.          

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4.      Indisputably, Gangaram Shantaram Salunkhe preferred an appeal  before this Court against the said judgment of conviction and sentence  passed by the High Court, which was marked as Criminal Appeal No. 241 of  2006.  The said appeal has since been dismissed by this Court by a judgment  and order dated 22.11.2006.  [See Gangaram Shantaram Salunkhe v. The  State of Maharashtra  [2006 (12) SCALE 259].  Premraj Hiraman Chaudhari  (Accused No. 3) has not preferred any appeal.       5.      Mr. Shekhar Naphade, learned Senior Counsel appearing on behalf of  the appellant, inter alia, would submit that it would be hazardous to rely  upon the statements of PWs 4 and 5 to base a judgment of conviction against  the appellant.   

       The learned counsel would urge that the contention of Sukhlal in  regard to the purported vow taken by the appellant to take revenge of murder  of his father cannot be said to have been proved inasmuch as no complaint  was made in regard thereto, nor any other person was informed thereabout.

6.      PW-2 was a labour contractor.  He was also a member of the  Panchayat.  He  categorically stated about the vow taken by the appellant  herein for killing the deceased Bhaulal.  It may be true that he did not inform  the police or others, but the same by itself, in our opinion, cannot be a  ground for discarding his evidence.         7.      We may now notice the evidence of PW-4.  He was a Peon in the  Village Gram Panchayat.  He was accompanying the deceased on the  motorcycle.  He categorically stated that a Maruti van overtook them.  It   was found standing at a distance.  Both the deceased as well as he  recognized the Maruti van.  They saw the accused persons coming down  therefrom.  The accused had stopped the motorcycle.  Premraj caught hold  of the deceased and Manilal started inflicting blows on the person of the  deceased with a dagger.  There was an unknown person also who inflicted  blows with a sickle.  On intervention, PW-4 was threatened by Manilal.  He  gave the details of the infliction of blows by the weapons in the hands of the  accused persons on the deceased.   He upon having been threatened started  running towards Jalgaon.  He found a motorcyclist coming towards him;   gave a signal and came to the police station to make a report at about 11.45  a.m.  The First Information Report was lodged without any delay  whatsoever.  In fact, the police came to the place of occurrence and removed  the deceased to the hospital in a tractor.   

    Mr. Naphade submitted that PW-4 was inimically disposed of towards  the accused persons as he had made a complaint to the police that Hiraman,  Prabhakar Motiram and others on 26.05.1985 had attempted to kill him.   We, however, are of the opinion, the same by itself would not be a valid  ground to discredit the said witness, who is otherwise truthful.         8.      It may be true that there are two groups in the said village.  PW-4  accepted the said fact.  Hiraman and Manilal were prosecuted for attempting  to  murder of Bhaulal.  They were, however, acquitted.  Bhaulal and some 8- 9 persons were said to have committed the murder of Hiraman, father of  Accused Nos. 2 and 3, wherefor a criminal case was initiated against them.             

9.      The vehicle was said to be of chocolate colour; but he is said to have  been shown a blue colour Maruti van.  Our attention was also drawn to the  statement of PW-5, who was the driver of the said Maruti van to show that  the colour of the Maruti van was not dark blue but it was light blue.  Such  minor contradictions, in our opinion, are of not much significance.   

10.     PW-5 was an independent witness.  He was driving the Maruti van  wherein the accused persons were travelling.  He had no axe to grind.  He  gave a vivid description in regard the places visited by the accused persons.   He was an eye-witness to the occurrence.  He intended to flee away from the  place, but he was threatened by the accused.  They after assaulting the  deceased sat in the said vehicle and asked him to take them to the temple of

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Vani Gadh.  They reached there in the evening.  There also he was  threatened.  He thereafter came to Jalgaon and disclosed the incident to the  owner of the vehicle Yogesh Aggarwal.       11.     Mr. Naphade submitted that the said Yogesh Aggarwal should have  been examined by the police. We do not think that it was essential to do so.   He was not an eye witness.  Except the fact that his vehicle was taken on  hire, he could not have proved anything else.   

12.     We, therefore, do not see any infirmity in the deposition of PWs 4 and  5.  We may also notice that according to Mr. Naphade, the motorcyclist who  had taken the PW-4 to the police station had not been examined.  The said  person has again nothing to do in the matter.  He was not a witness to the  occurrence.   The fact that the First Information Report was lodged promptly  and the deceased was removed to the hospital for treatment in a tractor is not  the subject-matter of any controversy.  How PW-4 reached the police station  may be relevant for judging his conduct.  Failure to examine the owner of  the motorcycle itself, in our opinion, would not lead to the conclusion that  no First Information Report was lodged by PW-4.   

13.     PW-6 is Namdev.  He was also going to Jalgaon.  He found Bhaulal in  an injured condition.  He intended to ascertain from him the names of the  assailants.  Bhaulal disclosed the same to him.  Both the courts below have  placed implicit reliance on the testimony of this witness also.       14.     Mr. Naphade\022s contention that as according to this witness heavy  bleeding took place and about two liters of blood accumulated around the  body of the deceased and, thus, it was impossible  for the deceased to  disclose the names of the assailants, cannot be accepted.  Only because there  had been profuse bleeding,  the same by itself would not lead to the  conclusion  that the deceased was not in a position to speak.       15.     We may also notice that the doctor found the following external  injuries on the person of the deceased :       \0231.  Injury over the right ear 4 =\024 in length and 2\024 in  breadth.  It was brain deep.

2.      Injury extending to as occiput to left mastoroid  4\024 in length x 1\024 breadth.

3.      Incised wound from medical aspect of scapula to  the upper border upto upper one-third of the  shoulder.  Parallel to the first to the first injury.

4.      Incised wound,  3\024 in length 1 =\024 in breadth  bone deep from the medical aspect of the scapula  to the left shoulder joint.

5.      Penetrating wound above the right superior 1\024 x  1\024 x 1\024 brain deep.

6.      Incised wound from right angle of the mouth  extending to the  mandible of the size of 3\024 x 1\024.

7.      Incised wound over the lower end of the scapula  transverse in direction 1\024 x =\024.

8.      Incised wound on the right midclavical line 3\024  below postal margin, transverse in direction 3 =\024  x =\024.

9.      Incised wound 3\024 below umbilicus transverse in  direction, 3 =\024on the left side and 2\024 on the right  side.

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10.     Incised wound 4\024 above the wrist joint 1\024 x 1\024  round shape.

11.     Amputated left three fingers from the proximal  M.P. joint.            

12.     Right thumb was cut only the skin tap was left.

13.     Penetrating wound arising from the 8th rib, at  midaxillary line on the left side, 4 curve in shape  upto point 4\024 from the L 3 level extending to the  abdominal cavity with exposure of abdominal  viscera.\024                  Apart from the external injuries, the doctor noticed the following  internal injuries :

\0231.  There was a fracture of the right temporal bone. 2.      Superior orbito bone was fractured, on opening the  skull the brain was lacerated on the right side.

3.      Fracture of the 8th, 9th, 10th,  11th , 12th ribs on the  left side.\024                    

16.     PW-13 is Dr. Ulhas Patil.  According to the said witness, injuries nos.  5 and 13 were on the vital parts of the body and were sufficient in the  ordinary course of nature to cause death.  The nature of the injuries suffered  by him as also opinion of the doctor is not in question.  It is furthermore  accepted that more than one weapon was used in commission of the murder  of Bhaulal.  The investigation of the offence was made by Dhanraj Gopalrao  (PW-17) and Popat (PW-15).  Recovery of knife as also the blood-stained  clothes of Accused No. 3 was made.       17.     Apart from the direct evidence of PWs 4, 5 and 6, that motive for  commission of the offence has also been proved by PW-2.  The fact that the  First Information Report was lodged against Hiraman, father of the Accused  Nos. 2 and 3 and Manilal (Accused No. 2) for attempting murder of Bhaulal  and Crime No. 81 of 1990 was registered against the deceased and some 8-9  persons for committing the murder of Hiraman is not disputed.         18.     We have also noticed that Accused No.2 has also made a disclosure  statement leading to recovery of the weapon of offence, which was   concealed at Saptashringi Gadh.  Even Accused No. 1 made a disclosure  statement and showed the place where the blood-stained clothes were burnt.   The weapon was found to be tainted with blood.  The place where the  weapon of offence was concealed was at a distance of 250 k.m. from the  place of incident.  The said material objects were said to be containing blood  which was found to be belonging to Group-B.  The blood group of the  deceased was also \021B\022.       19.     We, therefore, are of the opinion that there is no infirmity in the  impugned judgment.  The appeal  being devoid of any merit is hereby  dismissed.