1 apeal.659.90.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 659 OF 1990 1 Kashinath Punjaji Shardol, 40 yrs. 2 Shivaji Yashwant Shardol, 25 yrs., 3 Yamaji Punjaji Shardol, 38 yrs., 4 Vijay Kashinath Shardol, 20 yrs. All R/o. Umrale Khoord, Taluka:Dindori, District-Nashik .... Appellants (Orig. Accused) Vs. The State of Maharashtra .... Respondent Mr. B. G. Vaidya for the Appellants/Accused. Mrs. A. A. Mane, APP for the Respondent/State. CORAM: P. B. MAJMUDAR & ANOOP V. MOHTA, JJ. JUDGMENT RESERVED ON : 02/09/2010 JUDGMENT PRONOUNCED ON : 01/10/ 2010 ORAL JUDGMENT (Per Anoop V. Mohta, J.):- This is an Appeal filed by all four Appellants/ Accused against Conviction Order dated 28.09.1990 passed by the learned Additional Sessions Judge, Nashik, in Sessions Case No. 71 of 1990, for the offences punishable under Sections 302/324 read with 34 of Indian Penal Code 2 apeal.659.90.sxw ssm (IPC), by holding that the prosecution has proved that all the accused in furtherance of their common intention committed the murder of “Kacharu” (the deceased) and accused No.4, under Section 324, voluntarily caused grievous hurt to Ashok-Complainant. 2 The prosecution case as recorded in the impugned judgment is as under: “Complainant Ashok lives with his brothers Kacharu, Jaywant, Ramchandra, mother Sonubai and father Dhulaji. His wife is Kalpana and sister-in-law is Shantabai wife of Kacharu. Both of them live with them. Complainant and his family owns some cattle heads. On the day of the incident, Santosh son of Kacharu had taken the cattle for grazing. While Santosh was grazing cattle, accused No.4 Vijay abused him. Santosh narrated this fact to his uncle Ashok, the complainant. The complainant therefore, went to question Vijay as to why he had abused Santosh. When he questioned Vijay about it, Vijay again started abusing Ashok and Ashok asked Vijay’s father to chastise Vijay. At that time, Vijay aimed a stone at Ashok which hit him on the head. Kacharu Dhulaji, the brother of Ashok also came there and tried to pacify them but accused No.2 Shivaji caught hold of complainant Ashok. Then accused No.1 Kashinath, accused No.3 Yamaji and accused No.4 Vijay started assaulting Kacharu with the sticks in their hands. In order to save himself, Kacharu started running away. 3 apeal.659.90.sxw ssm Accused Nos.1, 3 and 4 therefore pelted stones at Kacharu. The stones hit him on the head, hand and at different places. As a result of this, Kacharu fell down on a way which leads to the well. The incident was seen by Rupa Gangaram, Suka Pandu, Dagu Gangaram and others. Since Kacharu had sustained serious injiries, complainant brought him in a Tempo to the hospital. A report of the incident was lodged the policy. Since the medical officer at Dindori found that the injuries sustained by Kacharu were of serious nature, he directed Kacharu to be removed at Civil Hospital, Nashik. Kacharu later died in the Civil hospital at Nashik. A post-mortem was carried on the dead body. In the meanwhile, the police went to the spot of the incident and had drawn the panchanama of the spot. They also seized the clothes of Ashok and the deceased. After the accused were arrested, accused No.4 Vijay made a statement that he would discover the sticks which he had kept on the loft of his uncle’s Yamaji’s house. He actually discovered those sticks and they were seized by the police. The clothes seized by the police, the sticks and earth from the spot of incident were sent to the Chemical Analyser for analysis. A charge-sheet thereafter, came to be filed against the accused.” 3 The prosecution has examined in all 7 witnesses. The witnesses include; PW 1 Ashok, the Complainant and one of the injured; PW 2 Dr. Jadhav, who gave first aid to the deceased and also noted the injuries on his 4 apeal.659.90.sxw ssm person; PW 3 Rupa and PW 4 Santosh, who is son of the deceased, are eye witnesses. PW 5 Rambhau is the panch of the discovery panchanama, PW 6 is the PSI Gajbhiv, the Investigating Officer, PW 7 is Dr. Nehete who carried out the postmortem. The spot panchanama is at Exh. 27. The inquest panchanama is at Exh. 28 and the seizure panchanamas are at Exh. 29 and 30. No witness was examined in defence. 4 The death of Kacharu was homicidal, PW 2 Dr. Jadhav and PW 7 Dr. Nehete, who carried out the postmortem on 04/02/1990 between 8.00 to 9.00 a.m. confirmed the same, based upon the following injuries:- “1) Sutured wound over fronto-temporal region extending upto parietal region left side. 3” in length. Swelling was positive. The would was obliquely placed. 2) Sutured wound over left face near lateral canthus. It was 1” length. Red in colour and there was swelling. 3) Abrasion on left side forehead. 2” x ½” Red in colour and it was irregular. 4) Sutured wound on posterior side of left forearm. It was 2” in length. It was obliquely placed and swelling was positive. There was a simple fracture of left ulna bone. 5) Abrasion over anterior side of upper arm (left) ½” x ½”. He further deposed that all these injuries were ante-mortem and might have been caused by hard and blunt object such as stick and stone. He further has stated that on internal examination, he found following injuries: 1) Echymosis on left fronto-temporal & parietal region. 5 apeal.659.90.sxw ssm Blackish in colour. 2) Dipressed fracture of skull of left frontal temporal and parietal bone.” He further stated and given opinion that cause of death was shock due to intra-cranial haemorrhage with a fracture of skull bone of left side with injury to brain matter and fracture of left ulna. All these injuries were collectively and singularly enough to cause death in ordinary course of nature. P.W. 7 stated that injury No.1 itself was sufficient in the ordinary course of nature to cause death. In the cross-examination he agreed that injury nos. 2 to 5 collectively will not in the ordinary course of nature cause death. 5 As alleged, A-4 Vijay stated to PW 4 Santosh that his uncle’s wife Kalpana was his wife. The prosecution case was of abuse. PW 4 Santosh narrated the same to PW-1, Ashok-the Complainant. PW 4 went to A-4 Vijay and A-1 Kashinath’s place and objected to the said statement made by Vijay. The quarrel started suddenly. PW 1 Ashok, (husband of Kalpana) who was also injured, stated that A-4 Vijay pelted stone which hit on his head. Kacharu (the deceased) came there. A-1 Kashinath and A-3 Yamaji went inside and brought sticks and assaulted Kacharu also. A-2 Shivaji caught hold PW 1 Ashok at that time. A-4 Vijay pelted stone on the head of Kacharu and ran away towards the eastern side towards the well. A-1 Kashinath and A-3 Yamaji followed Kacharu. It is stated that A-4 Vijay 6 apeal.659.90.sxw ssm while running towards the well turned back and seen Kacharu following him, again pelted stone which hit Kacharu on head. Kachru fell down. Ashok, after releasing himself from the clutches of A-2 Shivaji went to save Kacharu. As per PW 1 Ashok, all the accused again started assaulting to Kacharu while he fell down. When PW 1 Ashok reached to Kacharu, all the accused ran away. Kacharu died when undergoing treatment at hospital. PW 1 Ashok in cross-examination stated that he was at the distance of 50 to 60 fts. from the other accused when A-2 Shivaji caught hold to him. The incident over within five minutes. People had gathered when the incident was going on. Police Patil was present at the time of incident. No person from the gathered people was examined including the police Patil. 6 PW 3, Rupa saw A-4 Vijay pelted stone at different time at Ashok and at the deceased. She could not notice that Vijay was running ahead of Kacharu. The deceased fell down after sustaining injury on the head. She stated that when she went to the spot more than 50 people had gathered. She stated that A-1 Kashinath and A-3 Yamaji assaulted Kacharu with sticks. She stated that A-2 Shivaji caught hold Ashok initially but later on went near to Kacharu to assault. She stated that A-1 Kashinath, A-2 Shivaji and A-3 Yamaji assaulted Kacharu with sticks and even after he fell down, A-1 Kashinath and A-3 Yamaji pelted stones also. As per this witness, A-4 Vijay pelted stones by which the deceased had sustained head injury and fell 7 apeal.659.90.sxw ssm down. PW 3 Rupa further stated that Kachru stood up and ran towards the well and A-1 Kashinath and A-3 Yamaji followed him. As these A-1, A-2 and A-3 assaulted with sticks, thereafter Kacharu fell unconscious. 7 PW 3 Rupa had stated in her cross-examination that 50 people were gathered in between the way of the house. She had to go through the crowd of the people who were standing there. When she went to the spot, she saw Kacharu was being assaulted by sticks. From the above, it is difficult to accept the evidence of Rupa to the extent that she saw the incident in full. The fact that she need to go through the people near the spot itself means she was not in position to see the incident or condition of “Kacharu” clearly and the individual roles of these accused. 8 PW 4 Santosh, a minor son of the deceased at the time, stated that A-4 Vijay started abusing Ashok-Complainant and then pelted stones at Ashok. He also stated that Kacharu came there and intervened. A-2 Shivaji caught hold of Ashok and then A-1 Kashinath and A-3 Yamaji started assaulting Kacharu with sticks. The deceased (his father) started running from the spot behind A-4 Vijay. He also stated that A-4 Vijay turned back and pelted stones at Kacharu who after sustaining injury on head fell down. He unable to explain why A-4 Vijay started running towards the well. He stated that his father was assaulted by stick by A-1 Kashinath and A-3 8 apeal.659.90.sxw ssm Yamaji. A-2 Shivaji left Ashok and also assaulted Kacharu with sticks, at that time Kacharu was not unconscious though injured. He also stated that the deceased and A-4 Vijay both running away towards the well which was about 40 fts. from the spot. In the cross-examination he stated that he did not tell his father that A-4 Vijay had said about the Kalpana being his wife. He narrated the same to Ashok, who was shouting and therefore, Kacharu and he came out of the house. He saw Kacharu (the deceased) following A-4 Vijay. It means, it is doubtful whether he had seen assaults by A-1 and A-3 by sticks on Kacharu at first instance. Nobody intervened. He saw the crowd of people when he came out of the house. The deceased and A-4 Vijay were at the distance of 200 to 250 fts from the house when he saw them running. He also admitted that his view was obstructed on account of people who were standing there. The presence of Santosh was not noticed by the Rupa or vice versa. This witness also cannot be relied upon to convict all the accused under Section 302 read with Section 34 of IPC. The statement of this witness cannot be accepted and relied upon with regard to the individual roles played by all these accused; except he saw his father fell down after sustaining injury as A-4 Vijay turned back and pelted stone. The injuries, even if any, on the body of the deceased as recorded in the evidence of the Doctor, except injury No.1 were not sufficient to cause death. Therefore, even if there are subsequent assaults by A-1 Kashinath 9 apeal.659.90.sxw ssm and A-3 Yamaji and later on A-2 Shivaji, in the present facts and circumstances, it cannot be stated to be vital to cause death. PW 4 Santosh also admitted that his view was obstructed by the people who were standing there. There is no justification whatsoever given on record why the witnesses from the crowd were not examined by the prosecution though they were witnessing the incident throughout which went on for about 4 to 5 minutes. Therefore, nothing is clear from the evidence of these two witnesses PW 1 Ashok and PW 3 Rupa, when Kacharu fell unconscious, the vital head injury was caused because of stone pelted by A-4 Vijay or because of lathi assault by A-1, A-2 and A-3. 9 There was no reason for A-4 Vijay to run away from the spot if all had intention or planned to kill “Kacharu”. It appears that A-4 Vijay was running ahead to save himself from the assault of Kacharu or Ashok. The deceased was following A-4 Vijay towards the same directions as he was also running to save himself from Ashok and/or Kacharu. There is a possibility that A-4 Vijay might be apprehending that Kacharu following him to assault and therefore, to save himself, he turned around and pelted stone which hit at Kacharu’s head and he fell down and became unconscious. Therefore, but for sudden provocation, it was never intended even by A-4 Vijay to kill the deceased. A-1 Kashinath, A-2 Shivaji and A-3 Yamaji also followed Kacharu as he was running after A-4 Vijay, after 10 apeal.659.90.sxw ssm sudden incident/provocation as they might have thought Kacharu was running after A-4 Vijay to assault him. It appears that, they also ran after Kacharu to save A-4 Vijay from the apprehended attack of Kacharu. It is, therefore, clear that Ashok went to inquire about the Vijay’s statement and because of provocation, the incident happened. Accused never planned to kill Kacharu with a common intention. There is no explanation on record about the injury on person of A-1 Kashinath and A-2 Shivaji. 10 From the evidence of PW 1, 3 and 4, it is clear that about more than 50 people gathered when the incident was going on, including beating as well as pelting stones at Kacharu. No other, except related/ interested witnesses have been examined by the prosecution. PW 4 Santosh stated in the cross-examination that his father Kacharu and Vijay ran distance of about 200 to 250 fts. He also stated that his view was obstructed on account of people who were standing there. Therefore, his evidence cannot be relied. There is no evidence on record to show that at what stage Kacharu died, whether immediately after the stone hit on his head thrown by A-4 Vijay and/or after the alleged assault by A-1,A-2 and A-3, as the incident was over within 5 minutes, in front of a number of people. Even as per PW 1 Ashok, A-1 and A-3 assaulted Kacharu with sticks. At that time he was alive and ran towards the well. In view of this, we are of the view that it is difficult to accept the reasoning given by the learned Sessions Judge 11 apeal.659.90.sxw ssm that all the accused have committed murder with common intention or it is a pre-planned murder. Looking into the injury report on record, it appears that the deceased sustained fatal injury on head when A-4 Vijay turned back and pelted stones and the deceased Kacharu fell down on the spot, beating even if any, considering injury No.1 on his head, were not fatal. In the present facts and circumstances of the case, we are of the view that deceased died because of injury No.1 on the head of Kacharu which was resulted as A-4 Vijay pelted stone and the deceased had sustained injury on head. 11 The Apex Court in Gurmukh Singh Vs. State of Haryana 2009 AIR SCW 6710, has reiterated and considered to invoke the doctrine of provocation and self defence. If an incident took place at the spur of moment, and there is no intention or pre-meditation in the mind of the accused to inflict such injuries to the deceased which is likely to cause death in ordinary course of nature. The incident happened because of the provocation so recorded above and as in defence and under apprehension A-4 Vijay pelted stone which hit on the head of the deceased, and as other accused ran after Kacharu to save Vijay and even if assaulted and by that time the deceased was already fell down and became unconscious as hit by the stone on the head. Merely because the accused were there together but there is no sufficient material to connect which injury specifically caused by 12 apeal.659.90.sxw ssm which accused, by which weapon and at what time. There is no connecting material to show that injury No.1 caused by other accused, by lathi, except A-4 Vijay by stone. Therefore, we are of the view that the conviction so ordered under Section 302 read with Section 34 of IPC to all the accused is unsustainable. Section 304, Part-II of IPC in the present case applies as A-4 Vijay had inflicted though in the hit of moment to save himself and inflicted blow on the head of Kacharu because of which he fell down immediately and became unconscious on the spot. Even as per the doctor, this injury No. 1 is sufficient to ordinary course of nature to cause death. There is no material to show that it was pre-meditated or planned to attack or assault. In Jagrup Singh Vs. State of Haryana (1981) SCC 616 the Court has altered the conviction of the accused from Section 302 IPC to Section 304 Part II of IPC and the same was done in Gurmail Singh and Ors. Vs. State of Punjab (1982) 3 SCC, 185 and Gurmukh Singh (Supra). 12 It is necessary to consider the basic and original reason of the occurrence in such cases. The learned Judge has not considered the same. The first and second assault cannot be read in isolation by overlooking the background and the genesis of the events. Though referred but without dealing in detail, the learned Judge has rejected the pleas of self defence and of sudden provocation, which are relevant to decide the murder case based upon the material and evidence on record. Even as per the 13 apeal.659.90.sxw ssm prosecution, Ashok went to the place of accused first, where Kacharu also came, the accused never went to their place to attack them. The background and the sudden events resulted into the death of Kacharu. 13 It is settled that though accused does not plead self-defence and or a case of sudden provocation, the Court can consider such facts and pleas based upon the material on record even in Appeal against the order of conviction before passing the final judgment. The supreme Court has maintained the order of acquittal, on the following principles, in [(2010) 2 SCC 333, Darshan Singh Vs. State of Punjab and Anr.] i) .... ii) .... iii) A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension. v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. vi) ..... 14 apeal.659.90.sxw ssm vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. ix) ...... x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.” 14 There is nothing to show that there was any previous enmity between the parties. The incident took place suddenly and there was no common intention of the accused persons and there was no conspiracy to kill the Kachru. There is a material to show that even the accused were injured. The death as recorded above, was caused because of injury No.1 only. There is nothing to point out who had caused injury No.1 out of these 4 accused. The trial court has convicted all the accused under Section 302 read with Section 34 of IPC. There is no clear recording of the reasons with regard to the individual role played by these 4 accused. In above background and in the peculiar facts and circumstances of the case, we have to consider Section 304, Part II of IPC. 15 In view of above, therefore, so far as A-4 Vijay is concerned, we convert the sentence from 302 of IPC to 304 Part II of IPC and sentence him 15 apeal.659.90.sxw ssm to suffer rigorous imprisonment for four years and impose fine of Rs.1,000/- (Rupees one thousand only) instead of Rs.100/- in default to suffer rigorous imprisonment of 3 months, more. A-4 is also convicted of the offence punishable under Section 324 of the IPC. However, no separate sentence is imposed since he is convicted and sentenced of the offence punishable under Section 304 Part II of IPC instead of Section 302 of IPC. 16 So far as A-2 Shivaji is concerned, in view of above reasoning itself, as we found that there is no direct evidence to connect that the alleged subsequent assault by Lathi caused the death of Kacharu as he fell down immediately because of stone pelted by A-4 Vijay. As recorded, he caught hold Ashok and he was standing quite away when A-4 Vijay pelted stone at Kacharu at second time. 17 So far as A-1 Kashinath and A-3 Yamaji are concerned, it is clear from the evidence that after fatal injury on the head of the deceased and after he fell down, A-2 Shivaji and A-3 Yamaji ran and assaulted the deceased with sticks but by that time the deceased was already fell down and unconscious. In spite of earlier attack of Lathi or stone, Kacharu was alive and running after A-4 Vijay and/or towards the well. A-1, A-2 and A-3 therefore, ran after the Kacharu as he was running after A-4 Vijay probably with apprehension that Kacharu might to assault A-4 Vijay. A-4 Vijay also turned 16 apeal.659.90.sxw ssm around and pelted stone on that apprehension and therefore, this provocation and self defence / attack in our view, cannot be stated to be planned or intentional attack to kill the deceased. However, considering the above facts and circumstances itself, we set aside the order of conviction under Section 302 of the IPC and convict them under Section 322, 325 of IPC and direct them to suffer rigorous imprisonment of one year and a fine of Rs.500/- to each of them (A-1, A-2 and A-3) and in default to suffer 3 months rigorous imprisonment, subject to set off, if any. 18 As all the accused are on bail, in view of above conviction, the bail bonds are cancelled. They should surrender to the bail to complete the sentence. 19 The Appeal is accordingly partly allowed. (ANOOP V. MOHTA, J.) (P.B. MAJMUDAR, J.)