Raj D. Wakode, J.
1. Both the above criminal appeals are filed by the present appellants seeking challenge to the impugned judgment dated 29.01.2020, passed by the learned Additional Sessions Judge-9, Nagpur, in Sessions Trial No.190 of 2018. Since both the appeals are filed against the same judgment and even a common paper book has been prepared for both the appeals, we are deciding the present appeals by this judgment.
2. Heard Shri. A. S. Band, learned counsel for appellant in Criminal Appeal No.166 of 2020, Shri. R. M. Daga, learned counsel for appellant in Criminal Appeal No.387 of 2020 and Shri. N. R. Rode, learned Additional Public Prosecutor, for respondent/State in both the appeals.
3. The appellants – original accused stand convicted for the offences punishable under Sections 302, 307 and 323 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) at the hands of the learned Trial Court, which has sentenced them to suffer life imprisonment and to pay a fine of Rs.10,000/- each, in default to undergo simple imprisonment for six months each for the offence punishable under Section 302 read with Section 34 of the IPC, and Rigorous Imprisonment for seven years and to pay a fine of Rs.5,000/- each, in default to suffer Simple Imprisonment for three months each for the offence punishable under Section 307 read with Section 34 of the IPC.
4. The prosecution case, in short, was that the complainant - Tilak @ Ilu, son of Rajkumar Hate, on the fateful day i.e. on 21.01.2018, along with his friend Amol Atalkar, had accompanied Vaibhav Kawadkar on his motorcycle to his village Mohagaon Bhadade, where Vaibhav intended to have discussion about the field property with his uncles namely Balaji and Chandrabhan, i.e. the present appellants. The complainant - Tilak, who is an eye-witness, alleged that the present appellants assaulted Vaibhav Kawadkar, Amol Atalkar and the complainant himself on account of a dispute over the field property by means of a stick and an axe on the head of Vaibhav and the complainant, thereby attempted to kill them and have committed the murder of Amol.
5. On the basis of such complaint, Crime No.19 of 2018 was registered against the present appellants for the offences punishable under Sections 307, 302 and 323 read with Section 34 of the IPC. The Investigating Officer conducted the detailed investigation and submitted the charge-sheet before the learned Judicial Magistrate First Class, Narkhed.
6. Since the offences punishable under Sections 302 and 307 of the IPC were triable by the Court of Sessions, the learned Judicial Magistrate First Class committed the case to the Court of Sessions vide order dated 04.05.2018. The learned Trial Court framed the charge at Exhibit-15. The present appellants pleaded not guilty and claimed to be tried.
7. The defence of the present appellants was that of total denial and of alibi, claiming that both of them were at Sawargaon at the Hotel of Jaiswal on the day and at the time of the incident. The prosecution, in support of their case and to bring home the guilt of the accused, have examined in all nine witnesses, whereas the defence examined two witnesses, namely DW-1 Kunal Anil Jaiswal and DW-2 Chandrashekhar Laxmanrao Madankar.
8. The learned Trial Court, after considering the entire evidence on record so also the arguments advanced by the learned counsels, has convicted the present appellants for the offences punishable under Sections 302, 307 and 323 read with Section 34 of the IPC. Being aggrieved by the said judgment and order of conviction, the present appellants have approached this Court.
9. We have heard Shri. A. S. Band, learned counsel for appellant in Criminal Appeal No.166 of 2020, Shri. R. M. Daga, learned counsel for appellant in Criminal Appeal No.387 of 2020 and Shri. N. R. Rode, learned Additional Public Prosecutor, for respondent/State in both the appeals.
10. We have gone through the evidence, the documents on record and the impugned judgment dated 29.01.2020. We will refer to the same to the extent if necessary to decide the following points which arise for our consideration. We have recorded our findings thereon for the reasons to follow :
| Sr. No. | Points | Finding |
| i) | Whether deceased Amol Ramesh Atalkar died homicidal death ? | In the affirmative |
| ii) | Whether it is proved that on 21.01.2018, at mouza Mohgaon Bhadade, Tah. Narkhed, District Nagpur, accused in furtherance of their common intention committed murder by intentionally or knowingly causing the death of Amol Ramesh Atalkar by assaulting him by means of stick and axe and thereby committed an offence punishable under Section 302 read with Section 34 of the IPC? | In the affirmative |
| iii) | Whether it is proved that on the aforesaid date, time and place, accused in furtherance of their common intention assaulted Vaibhav Kawadkar by means of stick and axe on his head, with such intention or knowledge and under such circumstances, that if by that act accused had attempted to cause the death of Vaibhav Kawadkar, accused would have been guilty of murder and thereby committed an offence punishable under Section 307 read with Section 34 of the IPC? | In the affirmative |
| iv) | Whether it is proved that on the aforesaid date, time and place, accused in furtherance of their common intention voluntarily caused hurt to the complainant Tilak @ Ilu Rajkumar Hate and thereby committed an offence punishable under Section 323 read with Section 34 of the IPC ? | In the affirmative |
| v) | Whether inference in the judgment of the learned Trial Court is called for ? | In the negative |
| vi) | What order ? | Appeals dismissed. |
As to Point No.(i) :
In the present case, the prosecution has come up with a specific case that the present appellants had committed the murder of deceased Amol Atalkar. The defence of the appellants is that some unknown persons had assaulted Amol Atalkar and committed his murder. Thus, the case of accidental or suicidal death is not claimed either by the prosecution or by defence, and thus, the necessary corollary is that deceased Amol Atalkar died a homicidal death. The Postmortem report of Amol Atalkar dated 22.01.2018, which is at Exhibit-54 record page No.98, reveals the following injuries in column No.17, which are antemortem in nature, on the body of deceased Amol Atalkar.
| “17. Surface wounds and injuries Their nature, position, dimensions (measured) and directions to be accurately stated-their probable age and cause to be noted. If bruises be present what is the condition of the subcutaneous tissues ? (N.B. – When injuries are numerous and cannot be mentioned within the space available they should be mentioned on a separate paper which should be signed.) | 1) lacerated wound over mid-parietal region of size 5.5x4 cm, bone deep, irregular contused margins. 2) tram line contusion over posterior aspect of left shoulder of size 8x2 cm, oblique with centre area pale with hyperaemic lines adjacent on both sides, reddish 3) tram line contusion over posterior aspect of left loin region of size 5x2 cm, oblique with centre area pale with hyperaemic lines adjacent on both sides, reddish 4) contused abrasion over posterolateral aspect of right arm at lower 1/3rd, 3x0.3 cm, oblique, reddish 5) contused abrasion over posterior aspect of right forearm at upper 1/3rd, 6x4 cm, oblique, reddish 6) contusion over upper inner quadrant of left buttock, 4x1 cm, reddish 7) incised wound over anterior aspect of left thigh at middle 1/3rd, 4.5x2 cm, muscle deep, vertically oblique with tailing present at lower end 8) contused abrasion over left knee, 1x1 cm, reddish” |
| “19.Head:- Injuries under the scalp, their nature. Skull-Vault and basedescribe fractures, their sites, dimensions, directions, etc. Brain- The appearance of its coverings, size, weight and general condition of the organ itself and any abnormality found in its examination to be carefully noted. | Underscalp hematoma over midparietal region extending up to midfrontal region region, 14x10 cm, dark red Vault-depressed fracture present over mid parietal region of size 6x4.5 cm with fracture lines infiltrated with blood, corresponding to injury no. 1 in column no. 17 with one fracture line extending from anterior part up to glabella of length 11 cm & second fracture line extending from posterior part up to left temporal region of length 14 cm Base of skull - no fractures Dura-intact Subdural hematoma present all over the brain, about 120 cc, dark red Subarachnoid hemorrhage present all over brain matter & cerebellum in the form of thin blood film Brain - odematous, congested. Contusion present over mid-parietal region, 4x4 cm, dark red, corresponding to injury no.1 in column no. 17” |
12. As to Point Nos.(ii), (iii) and (iv).
The prosecution has examined in all nine witnesses. The star witness is the complainant i.e. PW-2 - Tilak @ Ilu Hate, who was examined as an eye-witness to the incident. PW-2 - Tilak, in his evidence, has specifically deposed on oath as to how he himself, alongwith Vaibhav and Amol, proceeded on the motorcycle of Vaibhav, which was driven by the complainant towards Mohagaon Bhadade. He has further deposed on oath the reason for which he and Amol consented to accompany Vaibhav, their friend, who was going to Mohagaon Bhadade to have a discussion with his uncles i.e. the present appellants regarding the property dispute. The arrival of the complainant i.e. PW-2 alongwith Vaibhav and Amol at Mohagaon Bhadade was not seriously disputed by the appellants and thus, the same was held to be proved by the learned Trial Court.
13. PW-2 - Tilak has deposed on oath the actual incident stating that the present appellants had assaulted firstly the pillion rider Amol, who was sitting at the rear of the motorcycle and later on the assault at the hands of the present appellants by means of an axe and stick on deceased Amol and injured Vaibhav. PW-2 - Tilak further deposed that he was also assaulted by means of stick by the appellants over his head, and therefore, he ran away from the said place to save his life. PW-2 - Tilak was cross-examined in detail, however, his cross-examination did not help much the defence. There was no suggestion at the behest of the appellants that any unknown person had assaulted them on the day of the incidence. A perusal of the evidence of PW-2 – Tilak reveals that the presence of the present appellants at the spot and their due identification have been convincingly brought on record. As regards the previous identity of the present appellants to PW-2 - Tilak, the very evidence of PW-2 - Tilak discloses that he had an occasion to see accused No.2 - Chandrabhan Kashinath Kawadkar in the marriage of Vaibhav’s sister at Tirupati Hall, Katol, which substantiates his claim of knowing the accused persons. Thus, in our considered opinion, the learned Trial Court was completely justified in placing reliance upon the evidence of PW-2 - Tilak, who was found to be a truthful and genuine witness.
14. After the examination of the eye-witness PW-2, the prosecution has relied upon the evidence of PW-5 - Vaibhav Prakash Kawadkar, who was the victim of the aforesaid incidence. Vaibhav Kawadkar, in his evidence, has narrated the dispute between him and the present appellants prior to the day of incidence, which reads thus :
“On 20.01.2018, accused No.1 Balaji met me at about 11.00 a.m. near the clinic of Dr. Band at Katol. He asked me to sell the bamboos which were planted by my grandfather on the dhura of the field of my father.”
15. PW-5 – Vaibhav Kawadkar had also testified in accordance with the case of the prosecution about his visit with Amol and the complainant Tilak to Mohagaon Bhadade on the day of incidence. He has deposed that while they were proceeding on a motorcycle, the complainant was driving the motorcycle. He himself was sitting in the middle and Amol was sitting as the pillion rider. PW-5 – Vaibhav Kawadkar further deposed that when they were proceeding from the house of Manoj towards the house of Balaji and when the front wheel of the motorcycle had crossed the drainage, somebody assaulted Amol on his head by coming behind. As such, the prosecution witness has narrated the assault as per the prosecution case except the identity of the assailants. Thus, prosecution witness No.5 - Vaibhav, who has deposed about the actual incident and has testified that about 7 to 8 blows were given on his head, appears to have intentionally avoided disclosing the names of the assailants. The record reveals that Vaibhav, being the nephew of the present appellants, he was won over and only to protect the present appellants had avoided to take their names.
16. The learned Trial Court, for the reasons stated in paragraphs Nos. 47 to 49, had scrutinized the evidence of such hostile witness PW-5 - Vaibhav and has accepted the evidence supporting the prosecution by exercising extreme caution, in compliance with the law laid down by the Hon’ble Supreme Court of India. Even though PW-5 - Vaibhav has turned hostile to the extent of not naming the present appellants, the deposition of the eye-witness PW-2 - Tilak has already proven the presence of the present appellants and the assault at their hands.
17. The present case in hand is very unique case, wherein PW-5 Vaibhav, though he has retorted from his statements recorded under Sections 161 and 164 of the Code of Criminal Procedure before the learned Magistrate, there is other evidence on record against him, which proved that he has falsely turned hostile. It was the case of the prosecution that upon receiving information about the alleged quarrel and sustaining of injuries by the injured, who were lying at the scene of incident, the police officials from out post chowki at Sawargaon had been to the spot and arranged for an ambulance. It was also the case of prosecution that during enquiry with the injured Vaibhav and Amol lying at the scene of incident by Head Constable Bhukte, he instructed Police Constable Avinash to obtain video recording of his enquiry. The Police Constable Avinash Bahekar was examined as PW-6 in order to prove the said video recording obtained by him during the enquiry conducted by Head Constable Bhukte. PW-6 – Avinash Bahekar has deposed about the sequence of events that occurred on 21.01.2018 at about 15:00 hours, when Head Constable Bhukte received telephonic information that two injured persons were lying in Village Mohagaon Bhadade.
18. It is worth to mention here that the evidence of Police Constable Bahekar discloses that the informant Arun Umathe had intimated that the present appellants had assaulted Amol and his friends and they both were lying in an injured condition. After receiving the said information, when they reached the spot and made enquiry, Vaibhav informed them that they were assaulted by his uncles Balaji and Chandrabhan i.e. the present appellants. PW-6 Bahekar further deposed that at that time, upon the instructions of Head Constable Bhukte, he recorded the aforesaid video on his mobile phone, wherein questions were put to the injured persons and their responses were recorded in the said video.
19. The learned Trial Court has reproduced the aforesaid recordings of both Amol and Vaibhav in following paragraphs:
“Thereafter firstly the injured were brought at rural hospital Katol by himself and PC Akash and then they were referred at Mayo Hospital. Upon examination of Amol, at Mayo Hospital, the Medical Officer declared that Amol was no more. Vaibhav was admitted in casualty ward and was provided treatment.
The video shooting of the said recording is played before this court showing that inquiry was made with injured Vaibhav. The conversation includes the voice of the witness PC Bahekar and Vaibhav which are as under:
Qu. Who caused beating to you?
Ans By Vaibhav, Mala Mazya kakane marle?
Qu. 2 Take his name (Tyache nav ghe)?
Ans Chandrabhan Kawadkar and Balaji Kawadkar
The witness again put same question to Vaibhav as his voice was low. Answer given by Vaibhav - Balaji and Chandrabhan Kawadkar.
The witness PC Bahekar also identified the background voice in the said recording is of HC Bhukte.
In the second video clip of 50 seconds, it is seen that HC Bhukte who was making inquiry with the person wearing blue white colour shirt i. e. Amol Atlakar. (deceased)
Qu by HC Bhukte - State your name (Nav sang re)
Answer given by Amol : Amol
Qu. by HC Bhukte put on two times : who beat you (Koni marle tula)?
Answer given by Amol : Balaji Kawadkar
Qu. by HC Bhukte - Ankhi koni maral? ektyanech marla kay koni marla sang?
Answer given by Amol : Sir mala sarla kara.
Qu. by HC Bhukte : Saral Mhanje ubhe ka?
Further I(PC Bahekar) asked Amol as ‘don minute thamb, tu aahe tya awasthet.
All these video clips are duly proved by prosecution as are identified by PC Bahekar in his evidence when were shown to him during his evidence.”
20. Further, the learned Trial Court, in paragraphs 58 and 59, has recorded as to how the aforesaid important evidence was extracted from the mobile phone alongwith necessary certification as required under Section 65-B of the Indian Evidence Act, 1872, and how the aforesaid document was proved. The paragraph Nos.58 and 59 of the impugned judgment read thus :
“58. The investigating officer has got prepared one CD of the video recording from the mobile hand set of PC Bahekar at the hands of Davane. On perusal of the video clipping in the CD, it reveals that during inquiry made with the Amol, he has specifically stated the name of accused Balaji as assailant. As regards the inquiry with injured Vaibhav is concerned, it is evident that he has repeatedly stated the name of accused Chandrabhan as well as Balajt as assailants before the police officer immediately after the incident. The CD containing video clips is prepared by Saurabh Davane (PW 8) the proprietor of Alankar Digital Photo Studio, Sawargaon. He has testified that Vivo Oppo V-5 mobile hand set was shown to him by PC Avinash containing two video clips. He was instructed to prepare copy of said video clips in the CD and accordingly by using Neuro software he has prepared its CD within half an hour to 45 minutes on 22- 01-2018. The said CD (having sticker of Mint Cool multi speed) was accordingly recovered by drawing panchnama Exh-65.
59. The prosecution has also produced and proved the certificate under Section 65-B to make the said Electronic Evidence admissible at the hands of Saurabh Davane (PW 8). The said certificate is at Exh 66. He has also obtained the photographs of the spot of incident in accordance with the letter issued by the investigating officer Mr Masram on 22-01-2018 Exh-67. The bill of preparation of CD is at Exh-68. He has identified the said CD and the video clips, when were shown to him by playing the same on laptop and it was confirmed by him that said video clip was recorded and copied in CD from Vivo 5 mobile hand set. The CD is on record is at Exh-69.”
21. During the course of hearing of the present appeals, we requested the Registry of this Court to arrange for the display of the aforesaid video clips for our perusal. We have seen in detail both the video clips and record our finding that Vaibhav has repeatedly named the present appellants as the assailants. The second video clip of deceased Amol Atalkar reveals that he has named Balaji Kawadkar. However, after the question put by Head Constable Bhukte regarding the involvement of any other person in the assault, deceased Amol was in such a state of shock by the grave assault on his head that, instead of naming the present appellant No.2 – Chandrabhan Kawadkar, he requested the constable to straighten him up. This, by no means, indicates that he had exonerated Chandrabhan or that there was only one assailant i.e. Balaji. On the contrary, all the other circumstances point towards the presence of both the appellants at the spot of the incidence and thus, in our considered opinion, the appellant Chandrabhan in Criminal Appeal No.387 of 2020 cannot take the benefit of such fact.
22. The cross-examination of the aforesaid witness i.e. PW-6 Avinash Bahekar, reveals that the defence itself has brought on record that when the injured persons were carried at Rural Hospital, Katol, the wife of deceased i.e. Bhavna Atalkar, was present at the hospital. Thus, the appellants themselves have admitted the presence of the wife of the deceased, Bhavna Atalkar, at the hospital, who had an occasion to meet her husband Amol and the injured Vaibhav at the first instance when they were brought to the Rural Hospital, Katol. Bhavna Atalkar is an important witness who is the wife of deceased Amol and she had an occasion to meet him and to make enquiries with her injured husband. The prosecution has examined the wife of deceased, Bhavna Atalkar as PW-4. She has deposed that she is working as an Advocate in the Court at Katol. In her evidence, she has specifically deposed that at about 03:30 p.m. to 03:45 p.m., her husband had called her and informed that the family members of Kawadkar had assaulted him by means of an axe over his head and severe blood was oozing from his person. He also asked that he was feeling uneasy and was crying. He said to Bhavna “Laukar Mala Davakhanyat gheun jayala sang.”
23. A perusal of the cross-examination reveals that the aforesaid aspect of receiving the phone call from Amol on the day of the incident has not been challenged at all, as there is no question about disputing the said fact. PW-4 – Bhavna Atalkar has also deposed about her meeting Amol at the Rural Hospital, Katol, where he was brought in an ambulance by Police Constable Bahekar and Police Constable Rajan. PW-4 Bhavna deposed that after reaching at Rural Hospital, Katol, she found that Amol and Vaibhav were lying in serious condition in ambulance. There was head injury to Amol. Her evidence specifically discloses that on her inquiry, Amol informed her that accused Balaji and Chandrabhan Kawadkar have assaulted him by means of an axe and stick and they are the uncles of Vaibhav.
24. The aforesaid fact regarding PW-4 - Bhavna and her presence at the hospital is already admitted by the appellants, which is revealed from the cross-examination of PW-6 - Avinash Bahekar. As such, the circumstance of PW-4 – Bhavna meeting Amol at the Rural Hospital, Katol, and narration of the names of appellants by Amol to his wife is convincingly brought on record to establish the complicity of the present appellants during the incident.
25. The prosecution, in order to establish the spot of the incident and the recovery of the weapons at the instance of both the appellants, has relied upon the testimony of PW-1 - Jagdish Vasantrao Bawane and PW-3 – Vijay Bhaiyaji Gajabe. A perusal of the crossexamination of the aforesaid witnesses reveals that the appellants have not disputed the incident of assault on Vaibhav and Amol at the spot of the incidence and the finding of blood stains at the spot of the incidence has also not been seriously disputed.
26. A perusal of the cross-examination of PW-1 - Jagdish reveals that there is no challenge in respect of the seizure of the clothes of either of the accused, as there is no cross-examination of Police Constable Bahekar in that regard. The learned Trial Court, for the reasons stated in paragraph 84, has found PW-3 - Vijay Gajabe as a trustworthy witness inspiring confidence and has therefore relied upon the aforesaid prosecution evidence in the capacity of the witness to the memorandum statements of the present appellants. Vijay Gajabe has proved that, after the recording of his statement, the present appellant Balaji has produced the stick from his house, which was taken out from the place beneath the kothi of grains. The present appellant Chandrabhan had taken out an axe in the presence of the said prosecution witness, PW-3 Vijay, from the cattle shed situated in the field of Balaji. Both the weapons were duly identified by Vijay Gajabe as Articles ‘B’ and ‘A’, respectively. The seizure panchanama of the aforesaid weapons were exhibited as Exhibits - 41 and 42, respectively.
27. The Investigating Officer had referred the aforesaid seized weapons i.e. the stick and the axe, to the Medical Officer at Mayo Hospital, Nagpur, on 25.01.2018 by a requisition letter at Exhibit 74. The Medical Officer, Dr. Mayukh M. Pal, had opined that both the weapons can cause death of patient, when used in an offence. The said query report dated 25.01.2018 is at Exhibit - 75 record page No.138 and was admitted by the present appellants. The aforesaid weapons were also referred to HOPE Hospital, Kamptee Road, Nagpur on 06.02.2018 vide requisition letter at Exhibit - 76. The Medical Officer of HOPE Hospital has also concurred with the opinion of the Medical Officer of Mayo Hospital that both the weapons can cause grievous injuries, when used as a weapon in an offence. We have already referred to the injuries sustained by deceased Amol leading to his death, as recorded in the postmortem report dated 22.01.2018, which is at Exhibit - 54 record page No.98. The injury certificate of Vaibhav is admitted by the appellants which is at Exhibits - 53 and 73. The injury report of Vaibhav Prakash Kawadkar at Exhibit - 53 reads thus :
“Injury report of Vaibhav Prakash Kawadkar Exh-53
Head injury with multiple facial bone fracture with frontal bone fracture of skull with abrasion on face.
i] Linear undisplaced fracture in right frontal bone extending inferiorly to involve the roof of medial wall of right orbit as well as roof right middle posterior ethmoidal cells, extending posteriorly to involve left lateral wall of sphenoid sinus.
ii] Small undisplaced fracture of the lateral wall of right orbit, comminuted inwardly mildly displaced fracture of the lateral wall of left orbit. Both the eye globes, optic nerves and extraocular muscles appear normal;
iii] multiple fractures involving anterior and posterolateral walls of both the maxillary sinuses with bilateral minimal hemosinus. There is berniation of retro-maxillary fat in the right maxillary sinus.
iv] Fracture of the base of both the pterygoid bones.
v] Linear undisplaced fracture on left zygomatic arch. Small hairline fracture on right zygomatic arch.
vi] oblique fracture involving left mastoid bone with resultant blood density collection in left mastoid cells middle ear cavity.
vi] Minimal bilateral ethmoid and phenoid bemosinus
vii] Inwardly displaced fracture involving left posterior parietal bone having length of inward displacement of bone 7 mm.
viii] Small hypodensity on left posterior parietal lobe, beneath the compressed skull bone fracture consistent with small. cerebral contusion.
ix] Small extra axial/extradural hemorrhage on left posterior parietal lobe having volume 0.2 to 0.4 cc.
x] Undisplaced fracture of orbit right and maxillary sinus
xi] CLW over scalp and chin region.”
28. Thus, serious and fatal injuries were caused on the person of Vaibhav, for which he was admitted to the hospital for several days. The learned Trial Court, in paragraph 112 of its judgment, has referred to the C.A. reports at Exhibit - 113 collectively, which crystallize the aforesaid fact of assault at the hands of the appellants by disclosing the presence of blood stains of Vaibhav and Amol from the blood-stained earth collected from the spot of the incident as well as on the clothes of the appellant Balaji. Thus, the medical evidence and the scientific evidence clearly point towards the guilt of the present appellants. The learned Trial Court was, therefore, completely justified in holding that the evidence on record establishes beyond all reasonable doubts that the present appellants had jointly assaulted deceased Amol and injured Vaibhav as well as the complainant Tilak, having arms of stick and axe in their hands demonstrating common intention on the part of the present appellants. The said assault resulted in causing the death of deceased Amol Atalkar and grave injuries on the person of Vaibhav.
29. The evidence of Vaibhav claiming that in all nine blows by means of deadly weapons such as a stick and an axe, were dealt on his person, more specifically on his head, establishes that the present appellants were having the intention to commit his murder and nothing else. Thus, the act of the present appellants falls within the provisions of Section 307 of the IPC, so far as the assault on Vaibhav is concerned. The learned Trial Court, in paragraph 117 of the impugned judgment, has recorded the prominent factors thereby pointing out the guilt on the part of the present appellants. Thus, in our considered opinion, the learned Trial Court has rightly and thoughtfully evaluated the entire evidence and meticulously scrutinized the same and reached to the conclusion which is against the present appellants.
30. Shri. R. M. Daga, learned counsel for the appellant in Criminal Appeal No.387 of 2020, has vehemently argued that deceased Amol, in the video clip, has only named Balaji Kawadkar and thus, the name of the present appellant Chandrabhan has not been implicated. However, the aforesaid fact cannot be read in isolation.
31. We have personally seen the video clip of Amol Atalkar, who was on the verge of death. He was under extreme shock and somehow had responded to Head Constable Bhukte by stating his name in response to the first question and by stating the name of Balaji in pursuance to the second question as to who has assaulted him. However, when a third question was asked to him regarding the involvement of any other person in the assault, he was trying to answer, but he was not at ease and therefore, he said “lj eyk ljG djk”. This fact by itself cannot exonerate the present appellant Chandrabhan, in view of the fact that, in another video clip, the injured Vaibhav (PW-5) had categorically stated the names of the appellants Chandrabhan and Balaji i.e., his uncles, as the assailants twice. Vaibhav was put the same question twice as to who has assaulted him and on both times, he named the present appellants as the assailants. Apart from the aforesaid video clip, the entire evidence, oral and documentary produced on record point out the guilt of the present appellant Chandrabhan and hence, the aforesaid ground raised by Shri. Daga, learned counsel, deserves to be rejected.
32. Shri. R. M. Daga, learned counsel, has also pointed out the postmortem report at Exhibit - 54 and more specifically, the finding regarding Column No.23(B) as to which injury was individually sufficient in the ordinary course of nature to cause death. The answer recorded therein is Injury No.1 mentioned in Column No.17, associated with the internal damage mentioned in Column No.19. Shri. Daga, learned counsel, submits that the Injury No.1 in Column No.17 is a lacerated wound which is caused by a stick, which was in the hands of Balaji and thus, the appellant Chandrabhan, who is attributed for causing assault with an axe, cannot be held responsible for the death of the deceased Amol.
33. A perusal of the entire evidence on record alongwith the postmortem report, reveals that there are incised injuries on the body of deceased Amol which are attributable to the weapon in the hands of the present appellant Chandrabhan. Moreover, the offences alleged against the present appellants are under various provisions of Sections 302, 307 and 323 read with Section 34 of the IPC. Section 34 of the IPC clearly provides that when a criminal act is done by several persons in furtherance of the common intention, each of such persons is liable for that act in the same manner as if it were done by him alone. The entire evidence on record, including the dispute over property between Vaibhav and his paternal uncles i.e. the present appellants, demonstrates the common intention for the aforesaid assault. Hence, the aforesaid argument advanced by Shri. Daga, learned counsel, is rejected.
34. The last limb of the argument of Shri. Daga, learned counsel, is regarding the delay in recording the statement of PW-4, Bhavna Atalkar, the wife of deceased Amol. The learned Trial Court has dealt with the aforesaid objection and recorded the reasons for delay in recording the statement of PW-4, in paragraph 79 of its judgments, which read thus :
“79. There is no doubt in my mind that it is the duty of the investigating officer to record the statements of relevant prosecution witnesses as early as possible to avoid any blame of tainted or interested witness. However, one cannot be oblivious of the material aspect that admittedly Bhawana lost her husband during the fateful incident because of committing his murder. It is obvious and bur natural that she was in huge shock. Although, Bhawna has attempted to claim that police had been to her house for recording her statement and similarly, she had been to police station, however, at that time her statement was not recorded. I do not find any reason not to accept the explanation given by the witness as truthful. It is to be noted that the innocent witness cannot be doubted on the account of non recording of statement by the investigating agency at the earliest possible time. It cannot be accepted that the witness was in a dominating position to compel the investigating agency to record her statement, therefore, although, her statement was recorded belatedly that circumstance cannot be said to be of any assistance for the defence to discard her testimony in its totality. On the contrary, evidence of Bhawana disclosing that she had been to rural hospital, Katol and made inquiry wherein Amol has specifically informed the names of both the accused as assailants has remained totally unchallenged in her entire cross examination. Therefore, I have no hesitation to accept said unchallenged evidence of Bhawana as trustworthy.”
35. In view of the aforesaid finding of the learned Trial Court regarding the delay in recording the statement and in spite of such delay accepting the evidence of PW-4 - Bhavna as trustworthy, the argument of Shri. Daga loses his force. In view of the aforesaid discussion, we are of the considered opinion that the present appeals are devoid of merit and therefore, deserves to be dismissed.
36. Accordingly, Point Nos.(ii), (iii) and (iv) are answered in the affirmative, Point No.(v) is answered in the negative. Hence, the present criminal appeals are dismissed in answer to Point No.(vi).
37. Before we part with the aforesaid judgment, we are reminded of the guidelines of the Hon’ble Supreme Court of India in the case of Perumal vs. Janaki, reported in (2014) 2 SCC (Cri) 591, wherein the Hon’ble Supreme Court has held that the High Court being a constitutional Court having power of superintendence under Article 227 of the Constitution of India is having both authority and responsibility to initiate proceedings under Section 195 and Section 340 of the Code of Criminal Procedure in appropriate cases to preserve the purity of the judicial process and protect the administration of justice from false evidence.
38. While hearing the present criminal appeals, we have found that PW-5 - Vaibhav Prakash Kawadkar, is liable to be prosecuted for the offence punishable under Section 191 read with Section 193 of the Indian Penal Code for giving false evidence. PW-5 - Vaibhav Prakash Kawadkar, in his statement recorded under Section 161 of the Code of Criminal Procedure so also the statement recorded on oath by the learned Judicial Magistrate First Class, Narkhed, on 12.02.2018, had specifically deposed as to the agricultural land dispute between him and his uncles Balaji and Chandrabhan Kawadkar i.e. the present appellants. He had specifically deposed about the incidence dated 20.01.2018 that, he had met appellant Balaji at about 11:00 a.m. near the clinic of Dr. Band at Katol and had called him. On 21.01.2018, PW-5- Vaibhav has stated on oath in detail as to how the present appellants had assaulted him, deceased Amol and the complainant PW-2 Tilak @ Ilu Rajkumar Hate. PW-5 had specifically named the present appellants as the persons who had assaulted deceased Amol Atalkar with an axe and stick.
39. PW-6 - Avinash Premraj Bahekar had deposed on oath that upon receiving the information, he immediately proceeded to Mohagaon Bhadade and upon reaching at the spot, he found that two injured persons were lying at two different places in serious injured condition. Upon making inquiry with present PW-5 Vaibhav, he informed that they were assaulted by his uncles Balaji and Chandrabhan Kawadkar.
40. We have personally seen the video clip of the recording when such inquiry was made with PW-5 Vaibhav. Even the learned Trial Court in paragraph 53 of its judgment has produced the conversation observed by it after seeing the aforesaid video clip. The conversation includes the voice of witness P.C. Bahekar and Vaibhav, which is as under :
“Qu. Who caused beating to you ?
Ans. By Vaibhav, Mala mazya kakane marle ?
Qu.2 Take his name (tyache nav ghe) ?
Ans Chandrabhan Kawadkar and Balaji Kawadkar
The witness again put same question to Vaibhav as his voice was law. Answer given by Vaibhav – Balaji and Chandrabhan Kawadkar.”
41. In view of the aforesaid statement made on oath before the learned Magistrate under Section 164 of the Code of Criminal Procedure and in view of the statement made while inquiring which was recorded in a video clip, PW-5 - Vaibhav was expected to support the prosecution case. More importantly, in view of the fact that it was only because of his property dispute that deceased Amol Atalkar, being his friend, had accompanied him to his village where he was assaulted and lost his life. PW-5 – Vaibhav, however, completely forgetting such fact and great loss to PW-4 - Bhavna Amol Atalkar and her daughter Swara, who was only seven years old in the year 2018, when her father was killed by the appellants, PW-5 though admitted the events of 21.01.2018 till the assault, he gave a false evidence that he was not aware as to who had assaulted him and deceased Amol. In paragraph 8 of his deposition at Exhibit – 46, he stated on oath as follows :
“8] It did not happen that on the day of incident my uncles Balaji and Chandrabhan have assaulted myself, Amol Atalkar and Ilu Hate by means of an axe and stick.”
Since PW-5 – Vaibhav was declared hostile, he was cross-examined by the learned A.P.P. In the cross-examination, he flatly refused the following suggestions :
“It is not true to say that when we were slowly crossing the said drainage, at that time accused Balaji and Chandrabhan came running from behind and assaulted on the head of Amol by means of wooden stick. The contents of portion mark G in my statement now read over to me were not stated by me before police.
It is not true to say that my friend Amol Atalkar was also assaulted by my uncles Balaji and Chandrabhan by means of stick on his head and by means of an axe on his leg and at that time my friend Ilu Hate ran away. The contents of portion mark I in my statement now read over to me were not stated by me before police.
It is not true to say that there is dispute between my father and accused person on account of field property. It is true to say that Amol was my good friend. It is true to say that I myself and Amol were doing similar business of DJ. It is not true to say that I was on visiting terms at the house of Amol.”
42. The denial to the aforesaid suggestions reveals that PW-5 - Vaibhav has, prima facie, given false evidence before the learned Trial Court and hence, we are satisfied that such false statement made by PW-5 - Vaibhav was deliberate, intentional and material to the case. The Hon’ble Supreme Court of India in the case of Mahila Vinod Kumari vs. State of M. P., reported in (2008) 3 SCC (Cri) 414, has highlighted the serious menace of perjury and fabrication of evidence, particularly in criminal trials dependent on oral testimony. The Hon’ble Supreme Court has held that the provisions such as Sections 340 and 344 of the Code of Criminal Procedure are intended to empower Courts to effectively deal with witness who intentionally give false evidence in order to curb the growing problem of perjury and to maintain the integrity of judicial proceedings.
43. For the reasons stated above, invoking the provisions of Section 195 read with Section 340 of the Code of Criminal Procedure, in our considered opinion, it is expedient in the interest of justice that an inquiry should be made into the above offence of Section 193 of the Indian Penal Code against PW-5 - Vaibhav Prakash Kawadkar, which appears to have been committed in relation to the judicial proceedings of Sessions Trial No.190 of 2018 and accordingly authorize Shri. Prashant Bhorkar, Assistant Registrar, High Court of Bombay, Bench at Nagpur, to make a complaint in writing to the Magistrate of the First Class having territorial jurisdiction under Section 340 of the Code of Criminal Procedure.