Sitaram Surve Vs. State of Maharashtra  Insc 496 (25 November 2002)
Babu, P. Venkatarama Reddi & B.N. Srikrishna. P.Venkatarama Reddi, J.
J U D
G M E N T
appellant alongwith nine others faced trial before the Court of Sessions for
Greater Bombay on the charges under Sections 143, 144, 302 read with Section
149 and 326 read with Section 34 of IPC for committing the murder of one Prakash
Gopal Katkar on the night of 12th February, 1981 and for causing injuries to
five others who are prosecution witnesses 3 to 7. Amongst those injured
witnesses, excepting PW 7, others are close relations of the deceased living in
the same or opposite house i.e., at Khatkar Chawl No.1 and 2, Hanuman Nagar, Ghatkopar.
PW 7 was the neighbour. Learned Addl. Sessions Judge acquitted all the accused.
On appeal by the State, the High Court convicted the appellant for the offence
under Section 302 IPC and sentenced him to life imprisonment and to pay a fine
of Rs.500/-. Three other accused who are not appellants before us were held
guilty of the offence under Section 324 IPC read with Section 34 IPC.
Accordingly, the State's appeal was allowed. As the High Court found that only
four persons including the appellant participated in the attack, it excluded the
applicability of Section 149 IPC.
incident had taken place on the night of 12th February, 1981 outside and within the house of the
deceased and the prosecution witnesses.
appellant-accused was also resident of the same locality. According to the prosecution
there was enmity between the deceased and the family of the appellant which is
borne out by certain events that occurred in October, 1978. On 11th February, 1981, i.e., the day previous to the date
of offence the accused 1 to 6 (appellant being 5th accused) hurled abuses at
the deceased and his family members in front of his house. On the date of
incident at about 8.30
P.M., as the deceased
was entering the bye-lane reaching to his chawl, the accused persons were
pelting stones on the chawl and also hitting the windows with sticks. They were
armed with different weapons like Farshi, Gupti, Iron Bars and sticks. Soon
thereafter, they surrounded the deceased Prakash Khatkar and began to assault
him. He was initially assaulted with Farshi by the first accused (brother of
he fell at the steps leading to the chawl, the appellant pierced Gupti into the
stomach of deceased. He was also assaulted by other accused with the weapons in
their hands. When the family members of the deceased intervened, they were not
spared. The accused assaulted the brother of the deceased (PW6), his mother
(PW3), his sister (PW4) and his brother's wife (PW5) inside the house. PW7 who
was the neighbour was the last person to be attacked by the appellant. Injuries
were inflicted on PWs 3,4,6 and 7 by the accused party. PW2 the brother of the
deceased took the deceased and other injured to the hospital along with a
constable (PW9) and he lodged FIR on the same night. PW11 held the post-mortem
examination of the dead body of Prakash Katkar. PW 18, the R.M.O. of the
hospital apart from noting the injuries on the deceased, examined the other
injured and issued wound certificates.
of the evidence, the High Court found that the acquittal of all the accused was
unjustified. In short, the High Court recorded its views as follows:- "In
our view, the learned judge has wrongly discarded the evidence of all the eye
witnesses on the ground that they are members of one family and have tried to
give the minute details of the incident, though it is observed by him that
being the relations of the deceased by itself would not be the ground to
discard the evidence of eye witnesses. Although there was sufficient light
according to the learned judge at the place of incident and undisputedly the
place of incident was in and near the house of the witnesses at night time when
all the witnesses were supposed to be in their house, their evidence has not
FIR was lodged immediately after the incident by the brother of the deceased.
After going through the evidence of the eye witnesses and other witnesses we
are of the view that some of the accused are liable to be convicted".
High Court relied on the evidence of PWs 2 to 6 notwithstanding certain improvements
here and there. However, the High court was not inclined to attach weight to
the evidence of PW 7 as her testimony was found to be doubtful, though not
trial court held that an unlawful assembly of not less than 5 persons in
prosecution of common object to kill the deceased, did in fact commit the
murder of Prakash. The trial court, however, doubted the identity of the
accused ad expressed the view that it was not possible to say as to who the
real culprits were, though there was a strong suspicion against accused Nos.1,3,5
and 8. In the elaborate judgment of the trial court, we find more of narration
of events, evidence and arguments, but, the reasoning is scanty. The fact that
there were no independent witnesses excepting PW 7 who was close to the family
of the deceased ad that the witnesses could not have spoken to the minute
details of the attack had considerably weighed with the trial judge in
disbelieving the prosecution case. As regards PW 7, the learned Sessions Judge
commented that she mixed up the identity of A 5 (Appellant) and A 2 as she
stated that it was Chandu (A 2) who inflicted the injury on the deceased with Gupti.
rightly observed by the High Court, the trial court was not justified in
discarding the evidence of injured eye witnesses (excepting PW 7) in toto on
the ground of inimical disposition towards the accused or the improbability of
narrating the details of actual attack. True, their evidence has to be
scrutinized with caution taking into account the factum of previous enmity and
the tendency to exaggerate and to implicate as many as possible.
a perusal of the evidence tested in the light of the broad probabilities, the
High Court was justified in reaching the conclusion that the prosecution
witnesses are natural witnesses and they could not have concocted the case
against the accused without any basis. The fact that the FIR was lodged almost
immediately after the occurrence naming the appellant as the main assailant
lends positive assurance to the credibility of the prosecution case as unfolded
by the eye witnesses most of whom were injured. Both the trial court and the
High Court found that there was sufficient light emitted by the tubelight in
front of the house to identify the accused who were known persons. The fact
that the incident occurred outside and inside the house cannot be doubted as
there was blood both at the steps where the dead body lay and inside the house
and weapons stained with human blood were found lying in the adjoining narrow
lane and the injuries were found on almost all the inmates of the house. It is
highly unlikely that within a short time of the occurrence the prosecution
party could have come forward with a false version implicating the persons who
were not at all scene, while leaving out real culprits. The eye witnesses'
account of the attack by the appellant is quite consistent. Though certain
doubts are sought to be created as to the genesis of the incident ad the manner
of attack by taking us through the topography of the scene of offence, we are
not at all convinced that the prosecution case is belied on account of such
factors. The argument that the injuries on the appellant were not explained by
the prosecution and therefore the prosecution case of the appellant being an
aggressor is open to doubt has no substance at all. In the course of
examination of PW 5 under Section 313 Cr.P.C., the appellant while denying his
presence in the course of the incident had stated that while returning home
from his vegetable shop, he was assaulted by a crowd in a passage but he could
not recognize them on account of darkness. Thus, he does not attribute the
injury to the deceased or the prosecution party nor does he suggest that he
acted in self-defence.
on this aspect, the High Court also observed that the possibility of the
accused being injured when the deceased or the prosecution witnesses tried to
resist the attack cannot be ruled out. Considering the facts and evidence on
record, we affirm the finding of the High Court that the appellant in the
company of others did attack the deceased with a dangerous weapon, namely, Gupti
and the prosecution case in this regard cannot be thrown out on the tenuous
grounds made out by the trial court.
next contended that the evidence being not categorical about the overt acts
attributed to the appellant and the appellant having been excluded from the
purview of Section 149 or Section 34 I.P.C. should not be held guilty of
indulging in fatal attack on the deceased. It is point out that the oral evidence
does not conform to the medical evidence and there is an element of doubt
whether the appellant was responsible for inflicting all or any of the severe
injuries found on the body of the deceased. To appreciate this argument, first,
it is necessary to refer to the evidence of PW11, who held the post-mortem on
the body of the deceased. PW11 deposed that he found the following external
injuries on the body of the deceased:
Stab wound on front of abdomen 2" x 1" and deep upto abdominal
cavity; oblique in direction.
Stab wound oblique in direction on the right side of infroaxillary area at the
level of 11th rib, 2"x " x 4" deep.
Stab wound at left epigastric region 1"x x 2", horizontal.
Stab wound on left side of infroaxillary area at level of 9th rib 1" x
1/2"x 3", oblique.
Abrasion 1"x " above left clavicle.
Abrasion on right shoulder 2"x 1".
Incised would 2" x 1/2"x 1/2", horizontal.
stated that the spot of injury No.7 was inadvertently not mentioned by him.
From the panchnama Ext. 19 coupled with the evidence of the doctor (P.W.18) who
examined the dead body in the presence of panchas, the High Court inferred that
injury No.7 was on the right scapular region.
further stated that injury No.1 to 4 and 7 must have been caused by '5 distinct
blows' and the said injuries could be caused by a sharp and long object. Injury
No.7 could be caused by a weapon like Article No.1 (farshi) and that the other
four injuries by Article No.2 (gupti). Injury Nos.5 and 6 could be caused by
sticks or iron bars or by fall. He opined that the cause of death was shock and
hemorrhage due to injuries on the body. He further clarified that the external
injury No.2 corresponds to internal injury No.21 and that external injury No.3
corresponds to internal injury No.20. He was also of the opinion that injury
No.20 was necessarily fatal and injury No.21 could also cause death if the
patient was not immediately treated.
No.21 of post-mortem report is 'abdomen'. In that, he noted rupture of right
lobe of liver with injury of 1" x 1" x 1/2'" . Item No.20 is
'thorax'. Against the columns 'pericardium and heart', it was noted that there
was rupture from anterium 1" x " and opening upto the cavity of the
right chamber of heart. Plural cavity was found to be full of blood, the reason
being that there was rupture of heart. PW 11 stated that the injuries 2, 3 and
4 "added blood in it".
light of the above medical evidence, the next question is whether it can be
safely said that the appellant alone had inflicted the fatal injuries i.e.
injuries 2 and 3 mentioned supra. That takes us to the analysis of ocular
evidence. Almost all the witnesses say consistently that the appellant pierce
the weapon (Gupti) into the stomach/abdomen of the deceased. The evidence scrutinized
carefully reveals that the appellant pierced the weapon once and at one spot
only. This is what PW 3 says:- Accused No.1 gave blow with Farshi on the thigh
of Prakash. Accused No.5 pierced Gupti into the stomach of Prakash. The witness
demonstrates how and at what angle the appellant (A 5) thrust the Gupti.
stated as follows:- "Accused No.1 gave a blow with Farshi on the right
thigh or Prakash. Prakash fell down.
No.5 then pierced a Gupti in the stomach of Prakash, after taking the Gupti
out. (Witness demonstrates). It was so taken from the round bamboo".
at paragraph 14, he stated that he could see clearly the Farshi with which a
blow was given to Prakash. Suresh took out the Gupti from its wooden case and
pierced it at 180 degree angle while holding it at his waist level.
is what PW 5 had to say on the actual attack : "Raghunath Surve (A 1) gave
a blow on the thigh of Praskash with a Farshi. Prakash fell down on the steps.
Suresh (A 5) then pierced a Gupti in the chest or in the stomach of Prakash. I
now say that it was in the center i.e. between chest and stomach". Witness
then demonstrates the manner in which the Gupti was pierced.
PW 6 deposed
:- "The accused surrounded Prakash. Accused no.1 had a Farshi in his hand.
He gave a blow with a Frashi on the thigh of Prakash. Besides, accused No.1
gave two blows on the right side just above the waist. Prakash fell down below
came from his house and he had a Gupti in his hand. It was open. He pierced it
in the stomach of Prakash". (The witness demonstrates by just pushing his
hand in the front direction in 180 degree angle).
PW 2 who stated in the FIR that the appellant gave Gupti 'blows' to the
deceased, stated in his deposition that Suresh (Appellant) pierced Gupti in the
stomach of Prakash. However, it is doubtful whether PW 2 could have noticed the
actual spot of the body where the weapon was inserted as, according to PW 5 ,
he was sitting at a distance holding his baby.
High Court commented that the eye witnesses merely stated that the appellant
pierced Gupti into the abdomen of Prakash without stating how many times. On
that premise, the High Court held that the appellant inflicted all the injuries
on the abdomen and chest with Gupti.
not think that his approach of the High Court vis--vis the overt acts
attributable to the appellant 5th accused is tenable. The High Court failed to
consider certain crucial aspects in this regard. Every witness in precise terms
speaks to the infliction of injury on the stomach/abdomen.
fact, they proceed to give a graphic description of the stabbing by
demonstrating the same in the court. It is not a case where the witnesses said
in general terms that the appellant stabbed the deceased. On a plain reading of
the relevant portions of the depositions extracted above, it appears that they
witnessed only one injury being inflicted by the appellant with Gupti. At any
rate, there is scope for doubt or ambiguity; if so, the prosecution should have
specifically elicited from the eye witnesses that the appellant resorted to
stabbing more than once. Moreover, the evidence of some of the witnesses reveal
that the accused surrounded the deceased and more than one person was armed
with Gupti. It transpires from the evidence of PW 17 the I.O., that two Guptis
were recovered in the bye-lane near the scene of offence. It is therefore quite
probable that one or two companions of the accused could have caused the
injuries found around the chest and abdomen with Gupti or a sharp weapon. It is
also worthy of note that accused No.1 brother of the appellant, allegedly
inflicted an injury on the thigh of the deceased with a Farshi. No injury was,
however, found on the thigh of the deceased. It is quite likely that the injury
attributed to A 1 could have landed at one of the vital spots. This possibility
also cannot be ruled out. Under these circumstances, a reasonable doubt arises
whether the injuries 1 to 4 were all caused by the appellant-accused alone who
was armed with a Gupti. It is, therefore, not possible to connect all the
severe injuries on the abdomen, infroaxillary, and epigastric regions to the
appellant. Nor it is possible to hold beyond doubt that the fatal injury No.3
on the epigastric region or for that matter even injury No.2 on the infroaxillary
area which according to PW 11 was capable of causing death if it was not
attended to immediately, were inflicted by none other than the appellant. It
was only PW 5, brother's wife of the deceased, who put up an improved version
stating "I now say that it was in the center i.e. between chest and
stomach", so as to connect the appellant with the most serious injury on
the epigastric region. It is highly doubtful whether she could have noticed in
that melee the exact spot of the attack. In fact, it has come out in
cross-examination that in the statement recorded by the police she did not
specify the spot which she had mentioned in the course of examination in Court.
the above loophole in the prosecution case, the appellant who undoubtedly
participated in the attack cannot be absolved of the guilt. We may recall that
all the witnesses unequivocally spoke to the fact that the appellant did
inflict an injury by piercing Gupti into the stomach or abdomen of the
deceased. Thus, going by the evidence on record, it can be safely concluded
that the appellant did inflict one of the four injuries noted (1 to 4) in the
post mortem report. Though it is not possible to say with reasonable certainty
that he is the person who caused the injuries 3 and 2 which are the most severe
injuries, even then the other two injuries i.e. stab wound on the front of the
abdomen 2"x1", deep upto the abdominal cavity and stab wound on left
side of infroaxillary area 1"x1/2 " x3" are, by any objective
standards, sufficiently serious injuries, whether or not they are injuries
sufficient in the ordinary course of nature to cause death. Any one of them is
severe enough to infer that it was likely to cause death. The appellant accused
undoubtedly intended to cause such bodily injury, though we are not in a
position to say positively on an overall view of the case, that the appellant
himself intended to cause death. Therefore, he, in our opinion, is liable to be
held guilty of offence under part I of Section 304 IPC.
he is convicted under Section 304 IPC and sentenced to R.I. of seven years and
to pay a fine of Rs.1,000/-. In default of payment of fine he shall suffer
imprisonment for a further period of four months. Accordingly, the appeal is
party allowed and the conviction and sentence recorded against the appellant