REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 654  OF 2004

State of Maharashtra ..Appellant

Versus

Prakash Sakha Vasave and Ors. ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay  High  Court  directing  acquittal  of  the  respondents  who  were

convicted for offence punishable under Section 302 read with Section 34 of

the Indian Penal  Code, 1860 (in short the ‘IPC’) and sentenced to suffer

capital  punishment  so  far  as  respondents  1  and  2,  namely,  Prakash  and

Ramu are concerned. Accused No.3-Shiva was convicted for the aforesaid

offence  but  was  sentenced  to  suffer  imprisonment  for  life.  All  the  three

accused persons were also convicted for offence punishable under Section

506 read with Section 34 IPC. No separate sentence was imposed.  

2. Prosecution version as unfolded during trial is as follows:

Jaitubai  is  the  sister  of  respondent  Nos.1  and  2  and  niece  of

respondent No.3. Jaitubai was married to Madhukar (hereinafter referred to

as the deceased) long back. Jaitubai had a son Alpesh (PW6) and daughter

Hema (PW5).  Alpesh  and Hema are  major.  All  of  them are  residents  of

Rayagaon (Patilfali), Taluka Nawapur, District Nandurbar.  

Deceased Madhukar brought Ramabai, a married woman and kept her

in his house. On 15.7.2001, first husband of Ramabai, alongwith 15 to 20

persons  came  to  Madhukar.  There  is  a  custom  prevailing  in  their

community,  which  is  commonly  known  as  ZAGDA system.  As  per  this

custom compensation is required to be paid to former husband. Pursuant to

ZAGDA  system,  Madhukar  paid  Rs.5,051/-  to  the  former  husband  of

Ramabai. Thereafter Madhukar was allowed to marry Ramabai. Jaitubai and

Ramabai stayed with Madhukar for a period of 15 days.  

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On account  of marriage with Ramabai,  the married life  of  Jaitubai

was disturbed. Accused nos. 1 to 3 were not happy over this affair. They

were shocked to know that their brother-in-law Madhukar married Ramabai

and  kept  her  in  the  house  which  adversely  affected  the  married  life  of

Jaitubai.  Accused  became  furious  and  decided  to  teach  a  lesson  to

Madhukar.

The  incident  occurred  on  16.7.2001  at  about  6.30  p.m.  at  a  close

proximity of the house of deceased Madhukar. Madhukar gave alarm to the

effect “MARLE, MARLE”. On hearing the alarm of Madhukar, Reenabai

(PW 3), sister of Madhukar, Gemji (PW 4), brother of Madhukar, daughter

Hemabai (PW 5) and son Alpesh (PW 6) immediately arrived on the spot in

order to see what had happened to Madhukar. Surtan (PW 7), Gulabsingh

(PW 8) and other persons from neighbourhood also arrived on the spot after

having  heard  the  alarm of  Madhukar.  Accused  Prakash  went  inside  the

house and brought two axes. He retained one axe with him and handed over

another  axe to his  brother  Ramu. Accused no.3 Shiva caught the legs of

Madhukar by means of rope. Accused no.l cut the left hand of Madhukar.

He also cut right foot of Madhukar. Accused no.2 inflicted axe blows on the

right eye-brow and near the left ear of Madhukar. The blow was given with

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so much force that the blade of the axe stuck into the head of Madhukar and

handle of the axe was broken. Accused no.2 brought knife from the house

and inflicted blows on the back of Madhukar by means of knife. Reenabai

(PW 3) tried to rescue her brother Madhukar, however, because of threats

administered  by  the  accused,  she  did  not  dare  to  rescue  her  brother

Madhukar. In the presence of dear ones, Madhukar was brutally assaulted.

His organs were severed by means of axes. But the dear ones and close ones

could not offer any kind of help to Madhukar. After the brutal assault on

Madhukar, accused nos. 1 to 3 disappeared from the scene of offence.

Reenabai (PW3) asked Alpesh (PW6) to go to the Police Patil. Alpesh

(PW6) went to Pangram and contacted Police Patil Shamji Gavit (PW11).

Alpesh (PW-6) narrated the entire incident to him. Police Patil Shamji (PW

11) went to Navapur Police Station on the bike belonging to Sarpanch and

disclosed  the  occurrence  to  the  Police.  Reenabai  (PW3)  lodged  FIR

(Exh.14) at 10.30 p.m. On the basis of FIR (Exh. 14) Crime No. 55/2001

came to  be registered.  P.1.  Pradip  Sonawane (PW18) carried  out  further

investigation of the crime and, after completion of the investigation, sent up

the charge sheet against the accused nos.1 to 3. Learned Judicial Magistrate,

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First Class, Navapur, District Nandurbar, committed the accused nos.1 to 3

to the Court of Sessions to stand their trial.

Since the accused persons pleaded innocence trial was held. As noted

above, the trial Court found the accused persons guilty and death sentence

in respect of A-1 and A-2 and life imprisonment to A-3 was awarded. Three

witnesses were stated to have witnessed the occurrence. They are PWs 3, 4

and 6. The trial Court found their evidence to be adequate and accordingly

recorded the conviction and imposed sentences.  The High Court directed

acquittal  primarily  on  the  ground  that  PW-3  did  not  speak  about  the

presence of Gemji (PW-4) and there is doubt about the place of recording

the first  information report  and  delay in  lodging  it.  PW-3 did  not  speak

about the assault by A-2 with knife.  Only PW-6 spoke about it. No overt act

was attributed by PW-6 to A-3. PW-4 did not say that the axe was fixed on

the head.  The evidence of  PW-2 was full  of  contradictions  as  there  was

discrepancy about the recovery.  

3. Learned counsel for the appellant-State submitted that the High Court

has lost sight of several important factors and attached undue importance to

minor discrepancies which are normal.  

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4. Learned counsel for the respondents on the other hand supported the

judgment of the High Court.  

5. It is to be noted that PW-3 is the sister of the deceased. There was

practically no cross examination on the assault part. So far as fixing of the

axe on the head is concerned, unnecessary importance appear to have been

attached to the same. As a matter of fact the conclusion of the High Court is

erroneous  because PW-4 in his evidence has categorically stated that  the

deceased was having injury on his body due to assault by means of axes.

One axe was found inserted in the bone of head near the left ear. The handle

of that axe was in a broken condition. According to the evidence the axe

was inserted near about 4 to 5 inches in the head. Thereafter, all the three

accused persons ran way from the spot. The motive indicated was that the

deceased was having a illicit relationship with another lady and, therefore,

the family members of the wife were upset. The High Court has come to an

absurd conclusion that the eye witnesses PWs 3 and 6 gave account of 4 to 5

external  injuries  but  the  witnesses  did  not  utter  a  single  word  about

remaining 15 injuries. The High Court came to the conclusion that if at all

these two witnesses witnessed the incident from a short distance then it was

not explained as to why they were not  able to account for the remaining

injuries  which  were  found  on the  body of  the  deceased.  A witness  who

witnesses an attack on another by three persons armed is not supposed to go

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on counting number of assaults on the parts of the body where the injuries

were inflicted. They had categorically stated about the external injuries 1, 4,

8, 14 and 18.  It is  noticed that  PWs 3 and 4 came running after hearing

shout  of  the  deceased.  So  it  was  possible  that  they  had  not  noticed  the

injuries which were earlier sustained due to assaults. They appeared at the

spot  when the assault  was continuing.   As a matter  of  fact,  in  his  cross

examination  PW-4  had  stated  that  on  hearing  shout  of  the  deceased  he

rushed towards him and reached there within a short time. When he reached

at the spot of incident, at that time the deceased was lying on the ground

having injuries on his person. As noted above, there is practically no cross

examination of any of the eye witnesses i.e. PWs 3, 4 and 6 on the assault

part.  

6. So  far  as  the  delay  in  lodging  the  First  Information  Report  is

concerned, it has been accepted that the informant went to the wrong police

station and when he was directed to go to Navapur Police Station, he went

there and lodged the FIR. That clearly explains the delay. In the ultimate

analysis,   High Court was not justified in directing acquittal of A1 and A2.

However, so far as A-3 is concerned, the High Court has indicated sufficient

reasons for holding him not guilty.  Same needs no interference. But the

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reasons indicated for directing acquittal  of A-1 and A-2 are not justified.

We, therefore, set aside the judgment of High Court so far as their acquittal

is concerned. But considering the facts of the case, it  is apparent that the

accused  persons  were  annoyed  with  the  deceased  because  of  his  having

illicit relationship with another lady while his wife was alive.  The case does

not fall to the rarest of rare category.  The appropriate sentence would be

life imprisonment.   The State’s  appeal  is  allowed to  the extent  indicated

above. Respondents 1 and 2 are directed to surrender to custody forthwith to

serve the remainder of sentence.           

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, January 21, 2009

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