NAMDEO DAULATA DHAYAGUDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants, who were accused Nos. 1 to 3 in the Trial before the Additional Sessions Judge, Satara, were charged under Section 302 read with Sec. 34 of the Indian Penal Doe for the offences of intentionally causing the death of one Malhari (hereinafter referred to as the deceased) and Section 324 read with Section 34 of the Indian Penal Code for the offences of voluntarily causing hurt to one Babu Shaikh. The charge was sought to be substantiated by three categories of evidence:(1) evidence of Hiralal Sutar and Babu Shaikh,both of whom claimed to be eye-witnesses to the incident resulting in the death of the deceased and injuries to Babu Shaikh:(2) evidence of dying declarations made by the deceased before Dinkar Khunte and Police Patil Madhavrao Dhayagude:and (3) evidence of recovery of bloodstained clothes from accused Nos. 1, 2 and 3. The learned Additional Sessions Judge was not satisfied with this evidence and taking the view that it suffered from considerable discrepancies and improbabilities, he acquitted all the accused. The State preferred an appeal against the acquittal and the High Court, which heard the appeal, came to the conclusion, on a review of the evidence, that the view taken by the learned Additional Sessions Judge was unreasonable and the evidence led on behalf of the prosecution was sufficient to establish the guilt of accused Nos. 1, 2 and 3. The High Court took the view that the reasons given by the learned Additional Sessions Judge for rejecting the prosecution evidence were flimsy and unsustainable and accepting the prosecution evidence as substantially true, the High Court convicted accused Nos. 1, 2 and 3 of the offences under Section 302 read with Section 34 for intentionally causing the death of the deceased and sentenced each of them to suffer imprisonment for life and also in addition convicted accused No. 3 of the offences under Section 324 for voluntarily causing hurt to Babu Shaikh and sentenced him to suffer rigorous imprisonment for one year, the substantive sentences of imprisonment against accused No. 3 being directed to run concurrently. All the three accused thereupon preferred the present appeal under Section 2 (1) (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

(2.) The case of accused No. 2 stand on an entirely different footing from that of accused Nos. 1 and 3 and we shall, therefore, consider it separately. So far as accused Nos. 1 and 3 are concerned, we have carefully gone through the evidence led on behalf of the prosecution and we do not think that the High Court was in error in setting aside the acittal of accused Nos. 1 and 3 and convicting them for the offence of intentionally causing the death of the deceased. We must admit that the evidence of Babu Shaikh suffers from serious infirmities and it is difficult to accept that Babu Shaikh was an eye-witness to the incident as claimed by him. The story narrated by him in his evidence before the Court differs substantially from that set out in his statement before the police and having regard to the large number of contradictions in his evidence - contradictions not on mere matters of detail, but on vital points - we do not think it would be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused Nos. 1 and 3. But even so, the evidence of Hiralal Sutar, coupled with the dying declaration is, in our opinion, sufficient to bring home the offence against accused Nos. 1 and 3. There is no valid or cogent reason for rejecting the evidence of Hiralal Sutar. It appears to have been given in a natural and straightforward manner and it has a ring of truth. Hiralal Sutar was subjected to a lengthy and detailed cross-examination, but no serious dent appears to have been caused in his evidence. There are undoubtedly a few minor contradictions brought out in the cross-examination, but they are all on unsubstantial matters of detail and do not affect the board features of his testimony. We may refer to one contradiction on which the strongest reliance was placed on behalf of accused Nos. 1 and 3. Hiralal Sutar said in his statement before the police that when the deceased along with Babu Shaikh and himself had gone about half the distance on their way to the Basti of accused No. 1, accused No. 2, who is the brother of accused No. 1, came from the front side and offered them tabacco and whilst they were chewing tobacco, accused Nos. 1 and 3 emerged suddenly from the darkness from the back side and came running and attacked the deceased. But in the course of his evidence before the Court, Hiralal Sutat stated that the deceased, Babu Shaikh and himself, while proceeding towards the house of accused No. 1, stopped under the tamarind tree which was just at the edge of the road and from there they called for accused No. 1, on which accused No. 2, who was then serving fodder to the cattle, went inside the house and coming out after a while, he told the deceased, Babu Shaikh and Hiralal Sutar that accused No. 1 was not inside the house and then he offered them tobacco and after chewing the tobacco for a short while, all the four started waking back to the road when accused Nos. 1 and 3 suddenly came running from the corner of the hedge and assaulted the deceased. The story about the deceased. Babu Shaikh and Hiralal Sutar shouting for accused No. 1 accused No. 2 going inside the house and then after coming out, informing these three persons that accused No. 1 was not at home and then walking back to the road along with them, which was narrated in his evidence by Hiralal Sutar before the Court, was not to be found in his statement before the police and this, in the submission of accused Nos. 1 and 3 constituted a material contradiction impairing the evidentiary value of the testimony of Hiralal Sutar. Now, there can be no doubt that in his evidence before the Court, Hiralal Sutar made a definite improvement on the story set out in his police statement and to that extent we cannot accept his testimony. We must reject the embellishment made by him while giving evidence before the Court. Presumably this embellishment was made by him with a view to roping in accused No. 2 by trying to show that he was party with accused Nos. 1 and 3 to the common intention to kill the deceased and he facilitated the attack on the deceased by misleading the deceased, Babu Shaikh and Hiralal Sutar in believing that accused No. 1 was not at home. But apart from this embellishment, which is obviously an afterthought and which may be rejected as a subsequent innovation, there is no contradiction or inconsistency so far as the broad features of the story relating to the assault on the deceased are concerned. Whilst the deceased, Babu Shaikh and Hiralal Sutar were approaching the house of Accused No. 1 accused No. 2 met them, offered them tobacco and whilst they were chewing tobacco, accused Nos. 1 and 3 suddenly emerged from the back side and attacked the deceased - this is the main substance of the story narrated by Hiralal Sutar and that has remained unshaken in cross-examination. We are, therefore, of the view that the High Court was right in relying on the evidence of Hiralal Sutar for reaching the conclusion that accused Nos. 1 and 3 assaulted the deceased with axe and killed him.

(3.) The evidence of Hiralal Sutar to the effect the accused Nos. 1 and 3 attacked the deceased and caused his death is also supported by the dying declaration made by the deceased before the police patil Madhavrao Dhayagude. Madhavrao Dhayagude was awakened at night at about 12 p. m. by Dinkar Kunte and Hiralal Sutar and he was told by Dinkar Kunte that the deceased was lying injured as a result of an attack by accused Nos. 1, 2 and 3. He immediately accompained them to the place where the deceased was lying injured and saw that the deceased had received a serious injury on his abdomen on the left side and his intestines had come out. The deceased was conscious and so he asked the deceased as to what had happened, on which the deceased stated that he had been beaten by "all the three accused." He placed the intestines back in the stomach and tied a bandage round it and then proceeded to the Lonand police station on foot for the propose of giving information. He reached Lonand Police Station at about 4.30 a. m. and lodged the First Information Report. This evidence, if accepted, would clearly go to prove the dying declaration made by the deceased that "all the three accused" had assaulted him and that would strongly support the evidence of the eyewitness Hiralal Sutar. Accused Nos. 1 and 3, therefore, tried to attack the veracity of this witness by trying to suggest that there was enmity between him and the accused. But do not find any substance at all in this suggestion. There is not an iota of evidence to show that there was any enmity between Madhavrao Dhayagude and any one of three accused. It is true that in 1953 Madhavrao Dhayagude's father had given evidence in a civil case against the father of accused Nos. 1 and 2, but that was about eighteen years prior to the date of the incident and moreover, the evidence was given by him in his capacity as a revenue and police patil. It is difficult to believe that a solitary incident of giving evidence - not by Madhavrao Dhayagude, but by his father and that also at a distant past - could have given rise to such enmity that Madhavrao Dhayagude should falsely implicate the accused in an offence of murder. We have carefully gone through the evidence of Madhavrao Dhayagude and we satisfied that he is a totally disinterested witness. There is absolutely no reason why he should have come forward to give false evidence against accused Nos. 1 and 3. The evidence given by him is in fact corroborated by the First Information Report lodged by him. The criticism levelled against the First Information Report was that though the attack on the deceased had taken place between 11 p. m. and 11.30 p. m., the First Information Report was not lodged by Madhavrao Dhayagude until 4.30 a. m. that is after a period of about five hours, though the distance between Andori where the incident took place and Lonand Police Station was only six to seven miles, and there was, therefore, a strong possibility that the First Information Report might have been lodged after discussion and premeditation and that would deprive it of much of its value as a corroborative piece of evidence. But this criticism is, in our opinion, not well founded. Madhavrao Dhayagude was awakened from sleep at about 12 a. m. in the night. He was informed about the incident by Dinkar Kunte and he then went to the place of the incident. There he saw the deceased, enquired from his as to what had happened and was told by the deceased that he had been beaten by the three accused. He then placed the intestines in the stomach and tied a bandage round it. All this must have easily taken about an hour in the night. Then he made some efforts to get a conveyance and when he failed, he set out on foot to go to Lonand Police Station. This must also have taken about half an hour. Now, if he starts from Andori at about 1.30 a. m., he is bound to take at least two to two and a half hours for covering six to seven miles at night. The first Information Report given by him at 4.30 a. m. cannot, therefore, be said to be so delayed as to excite suspicion. Moreover, it may be noted that the deceased was alive at the time when Madhavrao Dhayagude set out to go to Lonand Police Station and that is supported by the First Information Report which states that when Madhavrao Dhayagude and others placed the intestines back in the stomach and tied a bandage round it, the deceased was groaning. The First Information Report, therefore, clearly corroborates the testimony of Madhavrao Dhayagude. The only point on which Madhavrao Dhayagude seems to have made slight improvement in his evidence in regard to the dying declaration is in regard to accused No. 2. According to the First Information Report, the only persons named by the deceased before Madhavrao Dhayagude as his assailants were accused Nos. 1 and 3 and the deceased did not mention accused No. 2 as his assailant. But Madhavrao Dhayagude included the name of accused No. 2 as well amongst the persons named by the deceased as his assailants. This was clearly an improvement made by Madhavrao Dhayagude for the purpose of bolstering the prosecution case against accused No. 2. It is clear from the First Information Report that the name of accused No. 2 was not given by the deceased when he named his assailants before Madhavrao Dhayagude. But the names of accused Nos. 1 and 3 were definitely given and that supports the oral testimony of Hiralal Sutar that accused Nos. 1 and 3 pounced on the deceased and killed him by giving axe blows.