Dr. Arijit Pasayat, J.— 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 the offence punishable under Section 302 read with Section 34 of the Penal Code, 1860 (in short “IPC”) and sentenced to suffer capital punishment so far as Respondents 1 and 2, namely, Prakash and Ramu are concerned. Accused 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 the 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 Respondents 1 and 2 and niece of Respondent 3. Jaitubai was married to Madhukar (hereinafter referred to as “the deceased”) long back. Jaitubai had a son, Alpesh (PW 6) and daughter, Hema (PW 5). Alpesh and Hema are major. All of them are residents of Rayagaon (Patilfali), Taluka Nawapur, District Nandurbar.
3. Deceased Madhukar brought Ramabai, a married woman and kept her in his house. On 15-7-2001, the first husband of Ramabai, along with 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 the former husband. Pursuant to Zagda system, Madhukar paid Rs 5051 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.
4. On account of marriage with Ramabai, the married life of Jaitubai was disturbed. Accused 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. The accused became furious and decided to teach a lesson to Madhukar.
5. 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 the neighbourhood also arrived on the spot after having heard the alarm of Madhukar.
6. 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 3 Shiva caught (sic tied) the legs of Madhukar by means of a rope. Accused 1 cut the left hand of Madhukar. He also cut the right foot of Madhukar. Accused 2 inflicted axe-blows on the right eyebrow and near the left ear of Madhukar. The blow was given with so much force that the blade of the axe stuck into the head of Madhukar and handle of the axe was broken. Accused 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 1 to 3 disappeared from the scene of offence.
7. Reenabai (PW 3) asked Alpesh (PW 6) to go to the Police Patil. Alpesh (PW 6) went to Pangram and contacted Police Patil Shamji Gavit (PW 11). Alpesh (PW 6) narrated the entire incident to him. Police Patil Shamji (PW 11) went to Nawapur Police Station on the bike belonging to the Sarpanch and disclosed the occurrence to the police. Reenabai (PW 3) lodged FIR (Ext. 14) at 10.30 p.m
8. On the basis of FIR (Ext. 14) Crime No. 55 of 2001 came to be registered. PI Pradip Sonawane (PW 18) carried out further investigation of the crime and, after completion of the investigation, sent up the chargesheet against Accused 1 to 3. The learned Judicial Magistrate, First Class, Nawapur, District Nandurbar, committed Accused 1 to 3 to the Court of Session to stand their trial.
9. 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.
10. 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.
11. 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.
12. Learned counsel for the respondents on the other hand supported the judgment of the High Court.
13. 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 appears 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 nearabout 4 to 5 inches in the head. Thereafter, all the three accused persons ran away from the spot. The motive indicated was that the deceased was having an illicit relationship with another lady and, therefore, the family members of the wife were upset.
14. The High Court has come to an absurd conclusion that the eyewitnesses, PWs 3 and 6 gave account of 4 to 5 external injuries but the witnesses did not utter a single word about the 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 on counting the number of assaults on the parts of the body where the injuries were inflicted. They had categorically stated about External Injuries 1, 4, 8, 14 and 18. It is noticed that PWs 3 and 4 came running after hearing the 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 eyewitnesses i.e PWs 3, 4 and 6 on the assault part.
15. 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 Nawapur Police Station, he went there and lodged the FIR. That clearly explains the delay. In the ultimate analysis, the High Court was not justified in directing acquittal of A-1 and A-2. 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 reasons indicated for directing acquittal of A-1 and A-2 are not justified. We, therefore, set aside the judgment of the 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 in 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.