Monday, 16 November 2015

Procedure to be followed by Magistrate when one case is triable by session court and counter case is trable by Magistrate

There can be no dispute about the proposition that the counter cases arising out of the same incident have to be tried together. If two persons have lodged report in respect of the same incident giving different versions and two separate criminal cases are registered on the basis of these complaints it is necessary to ensure that both the criminal cases are tried by the same learned judge to ensure that conflicting decisions are not rendered in respect of the same incident. In a situation where one of the criminal cases involves an offence exclusively triable by the Court of Session whereas the other pertains to the offence triable by the Magistrate the Magistrate is obliged to commit the counter case to the Court of Session for being tried along with the sessions case arising out of the same incident by resorting to the provisions of section 323 of the Criminal Procedure Code 1973 (for short cr. P. C. )- If due to inadvertence the counter case is not committed for trial by the concerned magistrate the power of calling for the said case can be exercised by the Court of session. This dictum is no longer res integra. In Nathi Lal vs. State of U. P. 1990 Supp SCC 145 = 1990 SCC (Cri) 638 the Apex Court enunciated the principle that both the counter cases should be tried by the same Judge one after the other and judgments in both the criminal cases should be pronounced on the same day. However the judge has to take precautions to ensure that he is not influenced by the evidence or the arguments advanced in the counter case. These principles governing the procedure for deciding the counter cases are approved by the Supreme Court in the matter of Sudhir vs. State of M. P. (2001)2 SCC 688 at page 692. In that case it is laid down that section 323 of the Criminal procedure Code is enacted for meeting such contingencies and can be resorted to by the Magistrate for committing a counter case to the Court of Session although the trial is not for the offences exclusively triable by the Court of session. It is further clarified that in such a situation the Sessions Judge has jurisdiction to try the counter case not involving offences exclusively triable by the Sessions Court.
 Citation; 2007 (1) MAH.L.J(Cri) 344 2007 ALL MR (CRI) 897 2007 (2) AIR (Bom) R 513
BOMBAY HIGH COURT
Mukinda Rama Kamble 


state of maharashtra
Dated; 20 -12 -2006




S. P. Kukday J. ( 1 ) APPELLANT and four others were tried for offences punishable under sections 147 148 323 324 325 302 and 452 read with section 149 of the Indian Penal Code (in short ipc ). Learned Ilnd Ad hoc Additional sessions Judge acquitted all the accused of the offences punishable under sections 147 148 323 324 and 325 read with section 149 of Indian Penal Code. He further acquitted accused Nos. 2 to 5 of the offences punishable under sections 302 and 452 read with section 149 of the Indian Penal Code. The appellant is however convicted of the offence punishable under sections 302 and 452 of the Indian Penal Code. For the first offence the appellant is sentenced to suffer imprisonment for life and fine of Rs. 1000/ -. For the second offence he is sentenced to suffer imprisonment for five years and to pay a fine of Rs. 1000/ -. Both the sentences are directed to run concurrently.

 ( 2 ) BRIEFLY stated the prosecution case is that complainant-Dashrath (PW 8) murlidhar Chandrakant @ Kant Pandurang and Ankush (PW 4) are sons of ranubai Maruti Kamble (PW 6 ). Ranubai lives with Ankush his wife Sanjivani (PW 10) and their three months old child Vishnu @ Vikki (since deceased ). A plot of land is allotted by the Government to Ankush who is physically handicapped. The brothers are living separately at village Nalegaon. Pandurang is living in the old house at the village; others are living at the new settlement behind the Primary Health Centre. Their houses are adjacent to each other by the side of road going towards Siddheshwar Temple. To the north of the house of ankush are the houses of Dashrath Murdlidhar and Chandrakant. House of dnyanoba Nivrutti Kamble (accused No. 5) is opposite the house of Ankush on the other side of the road. At the time of the incident construction of the house of ankush was in progress. Therefore PW 4 was living in a temporary tin-shed constructed on the plot of Chandrakant. Soil excavated for the construction of the compound wall was heaped by the side of the road. This was the cause of dispute between PW 4 and accused No. 5 PW 4 had promised to remove the soil after the construction is completed up to plinth level but the members of the family of accused No. 5 were quarrelling with him because of the inconvenience caused to them. 
( 3 ) ON 29th January 2004 at about 1. 00 p. m. Bayjabai sister of PW 4 had come to the house of PW 4 with her son Narayan (PW 7 ). At about 2. 00 p. m. accused came to the house of PW 4. Accused No. 5 was armed with knife mukunda (accused No. 1) Sanjay (accused No. 2) and Ashok (accused No. 4)were armed with sticks and Shantabai (accused No. 3) was carrying stone. All of them started quarrelling over dumping of the soil by the side of the road. When pw 6 asked them not to quarrel accused No. 5 inflicted knife blow on her right hand. PW 8 and PW 7 went to her rescue. Accused No. 4 dealt blows on the legs of PW 7 with stick accused No. 2 dealt stick blows to PW 8 and accused No. 3 threw stones at Dattu son of Chandrakant causing injuries to his legs. On account of fear PW 4 and his wife had taken shelter in the tin-shed constructed on the plot of Chandrakant with their son Vikki. The accused pelted stones at the tin-shed. Thereafter they went to his house removed some of the galvanized iron sheets of the house with the help of sticks and stones and entered the house for assaulting PW 4 and his wife. Appellant obstructed PW 10 while she was leaving the house with her son and dealt stick blows over the head of the child saying that he would destroy the progeny of PW 4. Sahadeo Baburao Kamble (PW 5) and several others intervened to stop the quarrel. The child was then taken to the primary Health Centre. Dr. Madhav Shinde (PW 9) examined the child at 2. 10 p. m. and advised that he should be taken to the District Hospital at Latur. He examined PW 7. PW 6 Datta and PW 8 between 3. 30 to 3. 50 p. m. PW 8 lodged report of the incident with Chakur Police at 6. 00 p. m. On the basis of this report head Constable Koli (PW 12) registered offence against the accused for offences punishable under sections 147 148 323 324 325 307 and 452 read with section 149 of the Indian Penal Code. He then visited the scene of occurrence and prepared Panchnama (Exh. 69 ). The child expired at about 8. 00 p. m. After death of the child Dr. Sanjay Warad (PW 2) performed post-mortem. The child had sustained diffused contusion on left parieto-temporal region on scalp and diffused contusion on right parieto-temporal region. The tissues at the site of both the injuries were bruised. The child had also suffered communicated fracture of right parietal bone. After performing the internal and external examination PW 2 found that the death was caused due to the head injury. In view of the death of the child Penal section was changed from 307 to 302 of the Indian Penal Code and investigation was taken over by API Telang (PW 11 ). On the next day PW 11 attached clothes of the deceased under Panchanama (Exh. 28) collected post-mortem report (Exh. 29) arrested accused Nos. 1 to 4 and recorded statements of the witnesses. Accused No. 5 was arrested on 31-1-2004. On 3-2-2004 accused no. 5 made a confessional statement (Exh. 34) in presence of Jaykumar (PW 3)and produced three sticks and a knife from his house. These weapons were attached under Panchanama (Exh. 35 ). After completion of the investigation charge-sheet was filed against the accused. The accused adopted defence of false implication.
 ( 4 ) IN support of its case the prosecution examined 12 witnesses. PW 1 janardhan Shrungare is a Driver. PW 8 approached him at about 3. 00 p. m. On the request of PW 8 he took PW 10 and the child to District Hospital at Latur in his jeep.
 ( 5 ) PW 2 Dr. Sanjay Warad performed post-mortem of the dead body on 29-1-2004 at 9. 30 p. m. External examination of the dead body revealed three head injuries. (i) Diffused contusion on left parieto-temporal region on scalp (ii) Diffused contusion on right parieto-temporal region. The tissues at the site of both the injured were bruised (iii) Communicated fracture of right parietal bone. The internal examination disclosed : (i) Scalp haematoma at left parieto-temporal region 6x4 cms. (ii) Scalp haematoma at right parieto-temporal region 4 x 3. 5 cms. (iii) Extradural haematoma over left parieto temporal region of the brain 8 x 6 x 1 cms. (iv) Subdural haematoma over temporo-parietal region 4 x 3. 5 x 1. 5 cms. After performing the internal and external examination PW 2 prepared post-mortem report (Exh. 29) giving the cause of death to be the head injury. ( 6 ) PW 3 Jaikumar is a Panch to the discovery of the three sticks and a knife from the house of accused No. 5 in pursuance of his confessional statement (Exh. 34 ). The weapons were attached under seizure Memo (Exh. 35 ). ( 7 ) PW 4 is the father of the deceased. He is physically handicapped on account of deformity in his right leg. Construction of his house was in progress. House of accused No. 5 is opposite to his house across the road. As the construction of the house was in progress he was living in the shed at plot of his brother Chandrakant. At about 2. 00 p. m. all the accused started throwing stones at his house. When his mother PW 6 questioned them accused No. 5 dealt knife blow on her right forearm. Accused No. 4 dealt stick blows on the legs of PW 7 and accused No. 2 dealt stick blows to PW 8 who tried to rescue PW 6. PW 4 had taken refuge inside the shed with his wife and son. The accused came there removed some of the G. I. sheets and entered the shed. To escape the impending assault his wife was trying to leave the shed with her son. At that time appellant dealt stick blow on the right side of her forehead and on her hand. Appellant then dealt stick blow on the head of his son saying that he would destroy the progeny of PW 4 to put an end to his line of descent. After the quarrel the child was taken to the Primary Health Centre and from there to the Civil Hospital at Latur for treatment. The child expired at about 8. 00 p. m. PW 4 denied the suggestion that the child suffered injury due to fall.
 ( 8 ) EVIDENCE of PW 6 PW 7 and PW 8 agrees with this evidence in all material particulars. PW 6 has however admitted that earlier there was a quarrel between the ladies in which Kalubai mother of accused No. 5 had sustained an injury. The accused had come there after this incident. Several persons from the locality had assembled near her house during the episode that ensued. 
( 9 ) PW 10 is the mother of the deceased. She stated that after the quarrel started and accused No. 5 had dealt knife blow on the right hand of PW 6 she took shelter at the shed with her husband and child. The accused pelted stones at her house. Accused Nos. 2 to 5 then removed some of the sheets and were trying to force entry into the house. She was thus searching for an opening to leave the house. At that time the appellant came across her. The appellant then assaulted the child claiming that he would destroy the progeny of her husband. PW 10 has denied the suggestion that the child fell down while she was running away and sustained injuries.
 ( 10 ) PW 5 is an independent witness. Several families of the persons from matang community were living in the locality where the parties reside. PW 5 is distantly related to accused No. 5 as well as PW 4. His evidence corroborates the evidence of PW 4 and other eye witnesses in all material particulars. ( 11 ) PW 9 examined the child at the Primary Health Centre and found haematoma with tender chocolate coloured semicircular swelling under the skin within scalp over right side of the temporo-occipital area 4x3x2 cms. He advised that the child be taken to the Civil Hospital for the treatment. PW 9 subsequently examined PWs 6 7 8 and Datta son of Chandrakant between 3. 30 to 5. 30 p. m. On examination of PW 7 he found the following injuries mentioned in Injury Certificate (Exh. 52) :i) Abrasion on left knee joint simple injury object was sharp size 2 x 0. 2 cm simple in nature. ii) Abrasion on face lateral to right eye over right maxilla above obliquely directed size 3 x 0. 2 cm. iii) Tender swelling over left middle lip over 1/3rd 8th tibia anterior aspect semicircular 4 x 3 x 2 cms.
 ( 12 ) PW 6 had sustained brush type abrasion on right orbital fossa of upper lip 3 x cms; caused by sharp object mentioned in the Injury Certificate (Exh. 53 ).
 ( 13 ) DATTA had an abrasion on right knee joint over anterior and lateral aspect 3 x. 2 cm; caused by sharp object mentioned in the Injury Certificate (Exh. 54 ). 
( 14 ) PW 8 suffered following two injuries mentioned in Injury Certificate (Exh. 55);(i) Abrasion on right ankle joint posteriorly 2 x 0. 2 cm. simple injury caused by sharp object (ii) Tender swelling on just above left elbow joint on the left upper lip with restricted movement size 5x3. 3 cm. size.
 ( 15 ) PW 12 conducted initial investigation after the crime was registered by the Station House Officer at 6. 00 p. m. on the basis of complaint lodged by PW 8. He drew Panchanama of the scene of occurrence (Exh. 69) and prepared a rough sketch of the spot. After receipt of the information that the child has expired he handed over further investigation to PW 11. 
( 16 ) PW 11 was attached to Kasarsirsi Police Station at A. P. I. On 30-1-2004 he collected post-mortem report recorded statements of witnesses and arrested accused Nos. 1 to 4. Accused No. 5 was arrested on 31st. On 3-2-2004 on the basis of the confessional statement of accused No. 5 three sticks and knife were attached from his house at Nalegaon under Seizure Memo (Exh. 35 ). On completion of the investigation PW 11 submitted charge-sheet against the accused.
( 17 ) ON appreciation of the evidence learned trial Judge found that assault on the child is the individual act of the appellant. The accused had not formed an unlawful assembly with the common object of committing murder of the child. In this view of the matter he acquitted all the accused of the offences punishable under sections 147 148 323 324 325 452 and 302 read with section 149 of indian Penal Code. Learned Trial Judge however found that the evidence regarding house trespass and assault on the child by the appellant to be cogent and consistent. He found that nature of injuries suffered by the child ruled out possibility of an accidental death. Learned trial Judge further found that the medical evidence established homicidal death. Coupled with the fact that the injuries were caused on vital part of the body the exhortations of the appellant established his intention to cause death of the child. In conformity with these conclusions the trial Judge convicted the appellant of the offences punishable under sections 302 and 452 of the Indian Penal Code and sentenced him as stated earlier. So far as the individual liability of the other accused is concerned learned trial Judge found that the evidence of prosecution witnesses is at variance with the medical evidence as knife injury was not found on the right hand of PW 6. The trial Judge further found that the evidence regarding acts ascribed to accused nos. 2 to 5 does not inspire confidence. He therefore acquitted these accused of all the charges levelled against them.
 ( 18 ) FIRST contention of learned counsel for the appellant is regarding the legality and propriety of the trial being conducted without the counter case. It is contended that failure to try counter case being Regular Criminal Case No. 28/2004 arising out of the same incident with the present Sessions Case has resulted in causing serious prejudice to the appellant therefore the impugned order has to be set aside and the matter be remanded for fresh trial in accordance with the provisions of law. There can be no dispute about the proposition that the counter cases arising out of the same incident have to be tried together. If two persons have lodged report in respect of the same incident giving different versions and two separate criminal cases are registered on the basis of these complaints it is necessary to ensure that both the criminal cases are tried by the same learned judge to ensure that conflicting decisions are not rendered in respect of the same incident. In a situation where one of the criminal cases involves an offence exclusively triable by the Court of Session whereas the other pertains to the offence triable by the Magistrate the Magistrate is obliged to commit the counter case to the Court of Session for being tried along with the sessions case arising out of the same incident by resorting to the provisions of section 323 of the Criminal Procedure Code 1973 (for short cr. P. C. )- If due to inadvertence the counter case is not committed for trial by the concerned magistrate the power of calling for the said case can be exercised by the Court of session. This dictum is no longer res integra. In Nathi Lal vs. State of U. P. 1990 Supp SCC 145 = 1990 SCC (Cri) 638 the Apex Court enunciated the principle that both the counter cases should be tried by the same Judge one after the other and judgments in both the criminal cases should be pronounced on the same day. However the judge has to take precautions to ensure that he is not influenced by the evidence or the arguments advanced in the counter case. These principles governing the procedure for deciding the counter cases are approved by the Supreme Court in the matter of Sudhir vs. State of M. P. (2001)2 SCC 688 at page 692. In that case it is laid down that section 323 of the Criminal procedure Code is enacted for meeting such contingencies and can be resorted to by the Magistrate for committing a counter case to the Court of Session although the trial is not for the offences exclusively triable by the Court of session. It is further clarified that in such a situation the Sessions Judge has jurisdiction to try the counter case not involving offences exclusively triable by the Sessions Court.
( 19 ) LEARNED counsel for the appellant Shri S. J. Salunke has however failed to show that Regular Criminal Case No. 28/2004 arise out of the same incident. Certified copy of the charge-sheet in that case is filed on record of the lower Court. The F. I. R. in that case discloses that the offence took place at 1. 00 p. m. Kalubai mother of accused No. 5 is alleged to have been assaulted by chandrakant @ Kant and PW 7. The incident in the present case took place at 2. 00 p. m. on the same day Kant and Kalubai were not present at the time of this subsequent incident. An admission is elicited during the cross-examination of pw 6 that the accused in this case came to the scene of the occurrence after the earlier incident. Apart from this the accused have brought on record papers of the said case and these are considered by the Trial Judge. In the trial Court simultaneous trial of these was not even requested for. In these circumstances we are unable to sustain contention of the learned counsel for the appellant that prejudice is caused to the appellant as Sessions Case No. 50/2004 and Regular criminal Case No. 28/2004 are not tried together.
 ( 20 ) THE next contention of the learned counsel is that the trial Court committed an error in holding that the death is homicidal. Learned counsel would argue that Medical Officer PW 9 has admitted possibility of the injuries being caused by fall on the ground. Coupled with this expert opinion the inconsistency in the evidence related witnesses is sufficient to establish probability of the death being accidental. This argument is principally based on the opinion of the local medical Officer. It appears that only a preliminary examination is done by PW 9. The fact that PW 9 refers to only one injury substantiates this inference. PW 2 conducted post-mortem and found that the child had sustained diffused contusion on the left parieto-temporal region on scalp and diffused contusion on right parieto-temporal region. The tissues at the site of both the injuries were bruised. The child had also suffered communicated fracture of the right parietal bone. These injuries are not noticed by PW 9. His opinion is based on the fact that the child has suffered only one injury. Even otherwise the absence of other injuries which signifies possibility of a fall with requisite force it was not prudent for pw 9 to give such an opinion. The fact that the child had sustained two injuries on right and left parieto-temporal region makes it obvious that these injuries cannot be caused by a single fall. In this background absence of cross-examination of the autopsy surgeon on this aspect speaks for itself. In view of the absence of injuries which generally accompany fall with requisite force and the fact that two injuries on the opposite side of the head cannot be caused by a single fall it is not necessary to advert to the ocular testimony of the prosecution witnesses to decide the factum of homicidal death. In view of the medical evidence on record we are not inclined to accept contention of the learned counsel that the trial Court has committed an error in holding that the deceased died a homicidal death.
( 21 ) TURNING to the merits of the present case at the outset learned Counsel for the appellant has stipulated that as the State has not preferred an appeal against the acquittal of other accused he would restrict himself to the evidence pertaining to the appellant alone. Learned counsel argues that it is hazardous to rely on the testimony of the related witnesses examined by the prosecution more so when their evidence in respect of the complicity of co-accused is disbelieved by the trial Court. Principles regarding appreciation of evidence of the prosecution witnesses are by now well settled. The evidence of witnesses cannot be discarded merely on the ground that they are related to the deceased. If their presence is proved or considered to be natural and their evidence is trustworthy there can be no impediment in relying on the evidence of such witnesses to convict the perpetrator of the offence. General principles of appreciation of the evidence are applicable to the appreciation of the evidence of these witnesses also. There are bound to be some discrepancies in the evidence of witnesses. Normal discrepancies creep in the evidence of even truthful witnesses on account of the difference in the capacity of an individual to perceive retain recall and reproduce past events. These normal discrepancies do not affect credibility of a witness. Material discrepancies are the deviations which militate against the theme of the original version of the incident and give rise to a doubt regarding truthfulness of the narration of the witness. These inconsistencies corrode credibility of the evidence of the witness. Learned Counsel for the appellant contends that version of the incident in question given by PW 4 is that the appellant first dealt stick blows to his wife on right side of the forehead and on her hand and then dealt a blow on the head of the child materially differs from the version given by PW 10 that the assault was restricted to the child alone. Reference is also made to the admission given by PW 6 that the incident was preceded by the quarrel between the ladies during which Kalubai (mother of accused No. 5) sustained injuries. Admission given by PW 6 regarding previous quarrel between the ladies does not benefit the appellant. It merely shows why the subsequent incident took place. The evidence of all the prosecution witnesses except PW 7 including the evidence of independent witness PW 5 is consistent on the point of the exhortation of the appellant that he would destroy the progeny of PW 4. It appears that PW 7 did not realize importance of this exhortation at the time of making statement before the Police but has referred to the exhortation during the course of his evidence. This improvement made by him does not distract from the genesis of the occurrence. Such an improvement does not affect evidence of other prosecution witnesses in respect of the exhortations of the appellant. Till this exhortation no one anticipated that the appellant would attack the infant child. We must therefore evaluate evidence of PW 4 in this background. At the time of the assault on the child by the appellant all the accused had entered the house and were on rampage. Assault on the child took place in the melee that ensued. Thus it was natural for PW 4 to think that the blows dealt by the appellant were intended for the mother and not for the child. However after the exhortation the intention of the appellant to assault the child and his reason for doing such an act became clear to all who were present at the scene of occurrence and their attention was drawn to the appellant. In this scenario too much importance cannot be attached to the evidence of PW 4 that initially his wife was assaulted and after the exhortation the appellant assaulted the child. Having regard to the fact that the evidence of PW 5 PW6. PW 7 PW 8 and PW 10 on the point of assault by the appellant and his exhortation is clear cogent and consistent there can be no hesitation in accepting their evidence in respect of the part played by the appellant. In addition evidence of these witnesses receives corroboration from the medical evidence. The incident took place at 2. 00 p. m. and the child was found to have sustained injuries on his head when he was examined by PW 9 at the Primary Health Centre at 2. 10 p. m. Testimony of PW 2 would show that in fact the child had sustained two injuries on his head in the form of diffused contusion on left parieto-temporal region on scalp and diffused contusion on the right parieto-temporal region with communicated fracture of right parietal bone. It can thus be seen that the medical evidence corroborates ocular testimony of the prosecution witnesses. In cases where both the parties are prosecuted for commission of offence the witnesses always exhibit tendency to exaggerate. In such cases duty is cast on the Court to carefully evaluate the evidence to reach a reasonable conclusion warranted by the facts of the particular case. It must also be borne in mind that the maxim falsus in uno falsus in omnibus is not applicable in India and the witnesses cannot be branded as liars on account of falsity of a particular witness or falsity of some part of his evidence. Entire evidence of PW 4 cannot be discarded because of his wrong perception of the acts of the appellant in the scenario obtaining in the present case. In this view of the matter we are not inclined to sustain contention of learned counsel for the appellant that in view of the variance between the evidence of PW 4 and his wife regarding the manner of assault by the appellant. Considering the evidence of the prosecution witnesses in proper perspective we have no doubt in our mind that evidence of prosecution witnesses so far it relates to the assault by the appellant on the child is worthy of belief. The evidence does show that the assault took place inside the shed. In this view of the matter we do not find any infirmity in the conclusion reached by the trial Court that the appellant mounted fatal assault on the child with requisite intention and is guilty of the commission of the offence of murder and to sustain conviction of the appellant for the offences under sections 302 and 452 of the Indian Penal Code. In the result the appeal fails and is dismissed. Appeal dismissed.
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