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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     246     OF     2008   

Laxman                    .... Appellant(s)

Versus

The State of Maharashtra                   .... Respondent(s)

   WITH

CRIMINAL     APPEAL     NO.     247     OF     2008   

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) These appeals are directed against the final judgment  

and order dated 11.04.2005 passed by the High Court of  

Judicature at Bombay, Bench at Aurangabad in Criminal  

Appeal No.605 of 2003 whereby the Division Bench of the High  

Court while disposing of the appeal confirmed the order of  

conviction and sentence dated 19.07.2003 passed by the  

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Additional Sessions Judge, Biloli against the appellants herein  

and acquitted the other accused persons.

2)  Facts and circumstances giving rise to these appeals are as  

under:

(a) Laxman (original Accused No. 2), appellant in Criminal  

Appeal No. 246 of 2008 is the son of Shetiba (original Accused  

No. 1), appellant in Criminal Appeal No. 247 of 2008.  Both  

the accused persons and the rival group including that of one  

Nagoba (the deceased) are residents of the same village, viz.,  

Pingri, Dharmabad Taluq, Biloli Dist, Nanded, Maharashtra.    

(b) According to the prosecution case, the grand-daughter of  

Nagoba (the deceased) was engaged with one Ananda, son of  

Anjanabai (PW-5).  On 19.01.1992, at about 7.30 a.m., Nagoba  

went to the house of PW-5 to discuss about the settlement of  

marriage of his grand-daughter.  After discussion, when  

Nagoba came out of the house of PW-5, all the accused  

persons were present in the house of Shetiba (A-1).  They  

approached Nagoba and scolded him on the pretext of the  

marriage of his grand daughter with the son of Anjanabai  

(PW-5).  The accused persons also expressed that the said  

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marriage was contracted with an aim of gaining support.  All  

the accused persons assaulted Nagoba by means of weapons  

like axe, stones, sticks etc. On seeing this, Anjanabai (PW-5),  

Nivratti (PW-3) and Datta (PW-4) and 3 others came to rescue  

the deceased but they were also assaulted by the accused  

persons and sustained injuries.   After the intervention of  

police, the incident came to an end and Nagoba got grievous  

injuries and he was taken to the hospital at Karkhali  

wherefrom on the advice of the Doctor, he was shifted to the  

Civil Hospital at Nanded where he succumbed to his injuries,  

the same evening.   

(c) On the same day, i.e. on 19.01.1992, Devrao (original  

Accused No. 7) lodged a First Information Report (FIR) at the  

Police Station, Dharmabad alleging that he was assaulted by  

Nagoba (the deceased) and some other persons and as a result  

of which he and other persons sustained injuries.  On the said  

report,   Crime No. 6/92 was registered against Nivratti (PW-

3), Datta (PW-4) and Anjanabai (PW-5) and 3 others under  

Sections 147, 148, 149, 324, 337 and 504 of IPC.

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(d) On the next day, i.e., on 20.01.1992, at about 9.00 a.m.,  

Nivratti (PW-3)-the complainant lodged an FIR with the Police  

Station, Vazirabad, Nanded, which was registered as Crime  

No. D/92 for the offence punishable under Sections 309, 147,  

148, 149 of the Indian Penal Code, 1860 (in short the “IPC”)  

and later on it was referred to Dharmabad Police Station  

which registered the case as Crime No. 7/92 for the offences  

punishable under Sections 302, 147, 143, 149, 337 and 504  

of IPC.

(e) Both the cases were committed to the Court of Additional  

Sessions Judge at Biloli for trial and numbered as Sessions  

Case No. 49 of 1993.    The Additional Sessions Judge, vide  

judgment and order dated 19.07.2003 convicted 6 persons out  

of 11 accused, namely, Shetiba (appellant in Criminal Appeal  

No. 247 of 2008), Laxman (appellant in Criminal Appeal No.  

246 of 2008), Babu, Devidas, Devrao and Rohidas under  

Section 302 read with Section 149 of IPC and sentenced them  

to suffer imprisonment for life alongwith a fine of Rs. 500/-  

each, in default, to further undergo simple imprisonment for 7  

days each.  They were also convicted for the offence  

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punishable under Sections 147 and 148 read with Section 149  

of IPC, but no separate sentence was awarded. They were  

acquitted of the offence punishable under Sections 337 and  

504 read with Section 149 of IPC.  Rest of the accused persons  

were acquitted of all the charges.

(f) Being aggrieved by the order of conviction and sentence  

passed by the Additional Sessions Judge, all the 6 convicted  

accused persons filed appeal being Criminal Appeal No. 605 of  

2003 before the High Court.  The High Court, by impugned  

judgment dated 11.04.2005, found Shetiba (A-1), Laxman  

(A-2) and Devrao (A-7) guilty of the offence punishable under  

Section 302 read with Section 34 of IPC and confirmed the  

sentence imposed upon them by the trial Court and acquitted  

the other accused persons, namely, Babu (A-3), Devidas (A-4)  

and Rohidas (A-10) by giving them the benefit of doubt.

(g) Aggrieved by the said order of the High Court, the  

appellants herein have filed these appeals by way of special  

leave.  

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3) Heard Mr. Vikas Upadhyay, learned counsel for the  

appellant in Criminal Appeal No. 246 of 2008, Mr. Brij  

Bhusan, learned counsel for the appellant in Criminal Appeal  

No. 247 of 2008 and Mr. Sushil Karanjakar, learned counsel  

for the respondent-State.

4) Learned counsel for the appellants submitted that the  

witnesses relied on the side of the prosecution, viz., PWs 3, 4  

and 5 are relatives of the deceased, hence, in the absence of  

other evidence, the conviction solely based on witnesses  

related to the deceased cannot be sustained.  They also  

submitted that there is no proper explanation for the delay in  

lodging of FIR.  Though the deceased was alive for 12 hours,  

no dying declaration was recorded.  Finally, they submitted  

that the prosecution has not offered any explanation for the  

injuries sustained by the accused persons.  In other words,  

according to them, there was a free fight and in the absence of  

proper explanation from the side of the prosecution, the entire  

story is to be disbelieved.  On the other hand, learned counsel  

appearing for the State submitted that on proper appreciation  

of evidence and the materials, considering the fact that the  

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eye-witnesses were injured and taking note of all acceptable  

materials, the appellants were convicted under Section 302  

read with Section 34 of IPC, hence, there is no ground for  

interference.      

5) We have carefully considered the rival contentions and  

perused all the relevant materials.

6) It is true that the entire prosecution rests on the evidence  

of PWs 3, 4 and 5.  It is equally true that Nivratti (PW-3), who  

made the complaint to the police is brother of the deceased.  

Likewise, Datta (PW-4), who witnessed the occurrence is the  

son of the deceased and Anjanabai (PW-5) is the mother-in-law  

of grand daughter of the deceased.  This Court in a series of  

decisions has held that merely because the witnesses are  

related to the family of the deceased, cannot be eschewed.  

However, their testimonies have to be scrutinized carefully and  

if there is no infirmity, there is nothing wrong in accepting  

their statement vide Abdul Rashid Abdul Rahiman Patel &  

Ors. vs. State of Maharashtra (2007) 9 SCC 1.  Apart from  

this, it is also not in dispute that PWs 3 and 4 sustained  

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injuries which is evident from the deposition of the Doctor who  

examined them.   

7) Now, let us discuss the evidence of PWs 3, 4 and 5.  As  

stated earlier, PW-3 is the brother of the deceased who also  

sustained injuries in the incident.  In such circumstance, his  

presence cannot be doubted.  In his statement, he deposed  

that the incident took place 10 years ago and it occurred in a  

village called Pingri in front of the house of Anjanabai (PW-5).  

He further deposed that it was about 6-7 o’clock and  

according to him, he was standing nearby.  He stated that  

Nagoba-the deceased was in the house of Anjanabai (PW-5).  

When Nagoba came out of the house of PW-5 to proceed to his  

house, 12 persons who were sitting in the house of Shetiba (A-

1) came out and they assaulted Nagoba by means of axe,  

sticks and stones.  He further described that Shetiba (A-1) and  

Laxman (A-2) were holding sticks, Devrao (A-7) was holding an  

axe whereas Babu (A-3), Nagan (A-9), Rohidas (A-10), Devidas  

(A-4), Kanta (A-11), Shamrao (A-8) were holding stones.  

According to him, Shetiba (A-1) and Laxman (A-2) assaulted  

Nagoba over his shoulders, upper arm and thighs by means of  

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sticks.  Devrao (A-7) inflicted axe blows over his wrist and legs.  

He further stated that he was one amongst several persons  

who took Nagoba to the Hospital in a bullock cart and he was  

alive at that time.  On the direction of the Doctor, they took  

him to the hospital at Nanded, however, he expired at about  

7:30 p.m.  According to him, at about 10:00 to 11:00 p.m.,  

they lodged a report at the police chowki which was reduced  

into writing and he signed the same admitting that the  

contents therein are correct and he also proved his signature  

which is Exh. 95.   

8) Datta (PW-4) has stated that Nagoba-the deceased was  

his father.  He also mentioned that the occurrence took place  

11 years ago in front of the house of Anjanabai (PW-5) at  

about 7 a.m.  His father had been to the house of PW-5 to  

have a cup of tea.  He further deposed that he heard hue and  

cry and he immediately rushed to the place of incident and  

saw that Devrao (A-7), Dhondiba, Laxman (A-2) and Babu  

(A-3) were assaulting Nagoba.  He further stated that Devrao  

(A-7) assaulted the deceased by means of an axe and Shetiba  

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(A-1), Laxman (A-2) and rest other accused assaulted him  

using sticks and stones.  He also stated that Kitikabai (A-5),  

Indirabai (A-6) and Chautrabai had assaulted by means of fist  

and kicks.    

9) The next witness who explained the cause of the death is  

Anjanabai (PW-5). In her evidence, she stated that the  

occurrence took place 10/11 years ago and it was 7 a.m.  She  

called Nagoba-the deceased to have a cup of tea in order to  

have negotiation about proposed marriage of his grand  

daughter with her son.  She further deposed that her brother-

in-law Shetiba (A-1) was also present there.  After negotiation,  

the marriage was settled.  Nagoba-the deceased took tea and  

went out of her house.  Immediately, she heard hue and cry  

and noticed that a fight was going on and Devrao     (A-7),  

Shetiba (A-1), Laxman (A-2), Nagan (A-9), Devidas (A-4),  

Rohidas (A-10), Babu (A-3), Shamrao (A-8) and Kantilal were  

beating Nagoba by means of sticks, stones and axe.  In cross  

examination, he also stated that Nagoba was unconscious till  

his death.   

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10) It is seen from the evidence of PWs 3, 4 and 5 that they  

not only witnessed the occurrence but also specified the overt  

acts of each accused, particularly, A-1, A-2 and A-7.  Among  

those 3 persons, PWs 3 and 4 sustained injuries.  In such  

circumstance, on perusal of their entire testimonies, we are of  

the view that there is no reason to reject the same, on the  

other hand, the trial Court has rightly accepted their  

testimonies.

11) Insofar as the delay in lodging of FIR is concerned, it is  

true that the incident occurred at 7 a.m. on 19.01.1992 and  

the deceased died at around 7:30 p.m. on the same day and,  

thereafter, the complaint was lodged to the police.  Taking note  

of the fact that the above mentioned prosecution witnesses  

made all attempts to save the life of the deceased by taking  

him to the nearest hospital through a bullock cart and they  

also sustained injuries, we are of the view that the said delay  

cannot affect the prosecution case.

12) It is the claim of the appellants that though the deceased  

was alive for nearly about 12 hours, no attempt was made to  

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record his dying declaration.  It is true that no declaration was  

made and recorded.  The prosecution witnesses mentioned  

above clearly stated that throughout the day, the Nagoba (the  

deceased) was unconscious.  In view of the categorical  

statement and the position of the deceased till his death, the  

prosecution cannot be blamed for not recording his dying  

declaration.

13) Insofar as the injuries sustained by some of the accused  

are concerned, it is seen from the evidence of Dr. D. Trimabak  

(PW-2) that those injuries are minor in nature.  This Court on  

various occasions has held that in the case of minor injuries,  

merely because the prosecution has not furnished adequate  

reasons, their case cannot be rejected.  Considering the fact  

that the injuries sustained by some of the accused were minor  

in nature, even in the absence of proper explanation by the  

prosecution, we hold that the prosecution story cannot be  

disbelieved.  

14) The above analysis clearly shows that among the number  

of accused, at least two accused persons, namely, A-1 and A-2  

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were armed with sticks and A-7 was armed with axe.  Dr.  

Kishore (PW-1), the Doctor who conducted the post mortem  

has stated in his evidence that “in my opinion, cause of death  

was shock due to head injury with multiple injuries over the  

body.”  He further deposed that “the injury Nos. 4-6 and 8-10  

were caused by hard and blunt object.  Those were possible by  

a weapon like stick.  Injury No. 7 was possible by means of  

sharp weapon like an axe.  Internal injury mentioned in  

Column No. 19 of post mortem report corresponds to Injury  

No. 19 mentioned in Column No. 17.”  Finally, he opined that  

“probable cause of death was primarily head injury associated  

with other multiple injuries.”   The prosecution witnesses  

established that head injury was at the instance of A-7 and  

other injuries all over the body were at the instance of A-1 and  

A-2 by means of axe and sticks respectively.   

15) Taking note of the same and the evidence of the doctor  

(PW-1) who conducted the post mortem, namely, the cause of  

death, we are satisfied that the prosecution has proved its  

case beyond reasonable doubt in respect of A-1 and A-2  

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(appellants herein) and A-7 who assaulted the victim and  

inflicted multiple injuries and shared common intention.

16) In the light of the above discussion, we fully agree with  

the conclusion arrived at by the trial Court and affirmed by  

the High Court, consequently, both the appeals are dismissed.

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (RANJAN GOGOI)  

NEW DELHI; SEPTEMBER 27, 2012.

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