Page 1 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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Page 2 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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Page 3 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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Page 4 (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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 (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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Page 11 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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Page 12 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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Page 13 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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Page 14 (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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