LAXMAN Vs STATE OF MAHARASHTRA
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: Crl.A. No.-000246-000246 / 2008
Diary number: 32973 / 2006
Advocates: B. S. BANTHIA Vs
ASHA GOPALAN NAIR
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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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