State Of Maharashtra vs Prakash Sakha Vasave & Ors

State of Maharashtra ..Appellant

Versus

Prakash Sakha Vasave and Ors. ..Respondents

JUDGMENT

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.

2 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

3 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,

4 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.

5

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

6 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

7 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

8