cria435.01 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.435 OF 2001 (AURANGABAD) CRIMINAL APPEAL NO.485 OF 1986 (BOMBAY) The State of Maharashtra, (Through Vinayak Kashiram Patil (Karbode), r/o-Dapore, Dist-Jalgaon. ...APPELLANT. VERSUS 1) Hiraman Tulsiram Sonne, Age-28 years, 2) Ramkrishna Tulsiram Sonne, Age-26 years, 3) Balwant Tulsiram Sonne, Age-23 years, 4) Ashok Kashinath Jadhav, Age-25 years, 5) Madhav Dagadu Sonne, Age-30 years, 6) Piraji Jairam Sonne, Age-45 years, 7) Ramesh Baliram Chawhan, Age-27 years, (Appeal abated as per Court's order 08.03.2010), cria435.01 2 8) Shivaji Baburao Patil, Age-24 years, 9) Tukaram Sitaram Sonne, Age-30 years, 10) Jagan Sitaram Sonne, Age-25 years, 11) Tulshiram Jairam Sonne, Age-70 years, (Appeal abated as per Court's order 08.03.2010), Occupation of all-Agriculture, All R/o-Dapore, Taluka and Dist-Jalgaon. ...RESPONDENTS. (Original Accused Nos.1 to 11) ... Shri. K.G. Patil, A.P.P. for Appellant. Shri. S.S. Bora Advocate for Respondent Nos. 1 to 6 and 8 to 10. ... CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. DATE : 6TH APRIL, 2011 JUDGMENT [PER NARESH H. PATIL, J.] : 1. This Appeal is preferred by the State against the order of acquittal recorded by Additional Sessions Judge, Jalgaon, dated 21st cria435.01 3 March, 1986 in Sessions Case No.29 of 1985. 2. The prosecution case is that deceased Namdeo was resident of village Dapore, Dist- Jalgaon. The Respondents are also residents of said village. On 21st December, 1984 at about 5.30 p.m. PW-2 Vinayak, brother of deceased Namdeo was sitting on a platform near the back-door of house of Santosh Laxman Patil. The house of Hiraman Tulshiram Patil was at a distance of 50 ft. from house of Santosh Laxman Patil and court-yard in front of house of Hiraman Tulshiram was visible from that distance. Santosh Patil was taking his meals. At that time, it is alleged that deceased Namdeo proceeded to serve fodder to the cattle and was proceeding on the road. When deceased Namdeo was proceeding in front of house of Hiraman, the Respondents i.e. Hiraman and others (11 persons), came out of house of Hiraman. It is alleged that Hiraman was holding iron bar, Balwant was holding iron bar, Ramkrishna and Ashok were holding cria435.01 4 wooden poles and others were holding Bamboo sticks in their hands. The Respondents came near Namdeo and then Hiraman uttered as to what was the harm caused if his lamb had gone on the roof of house of Namdeo's mother. It is alleged that Tulshiram instigated others to beat Namdeo and said that they would take care whatever happens. It is alleged that Tulshiram abused deceased Namdeo. The Respondent Hiraman gave blow of iron bar on the head of Namdeo. Ramkrishna and Ashok gave blows of wooden poles on the head of Namdeo. Namdeo tried to save himself. The other accused assaulted with Bamboo sticks on the person of Namdeo. PW-2 Vinayak rushed towards the spot to save life of Namdeo, but he was also assaulted by iron bar by Hiraman. Ashok gave blow of wooden pole on the person of PW-2 Vinayak. Both, the deceased Namdeo and PW-2 Vinayak collapsed. PW-2 Vinayak was assaulted by other Respondents with sticks. Thereafter crowd gathered there. Pandurang, Shankar and others intervened and rescued them. cria435.01 5 Namdeo had become unconscious. Namdeo was taken in a bullock-cart to Shirsoli. Dr. Patil provided some treatment to Namdeo. Thereafter Namdeo was taken in auto rickshaw to Jalgaon Taluka Police Station by Kotwal and relatives of Namdeo. Police referred Namdeo to Jalgaon Civil Hospital. Statement of PW-2 Vinayak was recorded, which was treated as complaint, the same is at Exhibit 17. 3. The Police completed investigation and filed charge-sheet against the Respondents/ original accused persons. The prosecution examined 19 witnesses including three doctors, PW-10, PW-14 and PW-18. 4. Evidence of PW-2 Vinayak is crucial for the case. He claims to be injured eye witness. In his deposition before the Court, PW-2 Vinayak narrated the role attributed to Hiraman, Ramkrishna, Ashok, who assaulted deceased Namdeo- his brother and himself with dangerous weapons. cria435.01 6 The witness has not named Balwant as assailant of deceased Namdeo. In respect of other accused persons, the witness stated that they too assaulted Namdeo and himself with sticks after they collapsed. In cross examination of this witness, certain suggestions were given in respect of the incident which took place on 21st December, 1984, which the witness denied. The witness deposed that cattle shed of Namdeo is not visible from the platform of Santosh Patil. He denied that on the day of incident between 5.30 p.m. to 6.00 p.m. there was poor visibility. 5. PW-3 Pandurang is brother of Santosh Patil. He has deposed in respect of the incident. He claims himself to be an eye witness. He deposed that Hiraman assaulted with iron bar on the head of deceased Namdeo. Balwant gave blow of iron bar on the head of deceased. Ramkrishna and Ashok gave blows of wooden pole to Namdeo. The witness further stated that others also assaulted Namdeo cria435.01 7 with sticks in their hands. The witness tried to save the injured. Vinayak had fallen on the body of Namdeo to save Namdeo. At that time Hiraman gave blow with iron bar on the left leg of Vinayak. Ashok gave blow of wooden pole on the head of Vinayak. In cross examination, he deposed that he belongs to Hatkar community. Certain questions were put to him in respect of the spot, visibility of platform. 6. PW-4 is Ekanth Patil, who deposed that Respondents Hiraman, Ramkrishna, Balwant, Ashok came out of the house of Hiraman and immediately they restrained Namdeo who was proceeding in front of their house. They started beating Namdeo. Hiraman and Balwant were holding iron bars. Ramkrishna and Ashok were holding wooden poles. Hiraman gave blow of iron bar on the head of Namdeo. Balwant also gave blow of iron bar on the head of Namdeo. The witness was cross examined by Additional P.P. in respect of the statement, cria435.01 8 portion marked "A" and "B". In his cross examination by defence, the witness stated that accused Shivaji is son of his maternal uncle. It seems that witness was not fully relied upon by the State. 7. PW-5 and PW-6 claims to be eye witnesses, but they turned hostile to the prosecution. PW-7 was panch witness, who turned hostile. PW-8 Vikas was also a panch. He was not cross examined by the defence. PW-9 Bhaulal Sapkale is a panch of scene of offence. 8. PW-10 is Doctor Uttam Chaudhari. The witness was Casualty Medical Officer at Civil Hospital, Jalgaon. He had examined PW-2 Vinayak. He noticed four injuries on his person. In cross examination the witness stated that injury No.4 is possible by blow in stone pelting. Injury No.1 is not possible by pelting of stone. Injury No.1 is possible by a stone if it is of a cutting type. cria435.01 9 Injury No.2 is also possible by stone. 9. PW-13 Venubai is sister of deceased. She too claimed to be eye witness. She had narrated the incident. PW-14 is Doctor Patil, who was, at the relevant time, practicing at Shirsoli as Medical Practitioner. He has noticed injuries on the head of PW-2 Vinayak and deceased Namdeo. 10. PW-15 is Pandit Patil, who resides at a distance of 100 to 125 ft. in front of the house of Hiraman. He had seen injuries on the person of Namdeo and seen him collapsed on the ground. He stated that Hiraman gave blow of iron bar on the head of Namdeo. PW-17 is Krishna Patil, who was working as Police Patil of the village. 11. PW-18 is Doctor Madhukar Nirale, who conducted postmortem on the dead body of Namdeo. He noticed following injuries: cria435.01 10 (1) C.L.W. On left parietal region size 4" X 1" x deep upto bone, oblique in direction, (2) C.L.W. On the right parietal region 2" x 1" x bone deep oblique in direction. . The witness further stated that injury Nos. 1 and 2 mentioned in column No.17 of post mortem report, could be caused by any hard and blunt substance. 12. PW-19 Dinkar Bhat was Police Sub- Inspector who conducted investigation. 13. Learned counsel Shri. Satyajit Bora, appearing for the Respondents submitted that there was no motive or intention on the part of Respondents to assault deceased Namdeo and PW-2 Vinayak. The eye witnesses are interested witnesses, their evidence is not reliable. There cria435.01 11 was no sufficient visibility at the spot. The witnesses were at far away distance from the spot of incident. The genesis of the prosecution story suggests that issue was of a very trivial nature for which the accused would not commit such a serious crime of committing murder. The counsel further submitted that the prosecution has failed to establish charge of assault on deceased Namdeo and Vinayak with the aid of Section 149 of the Indian Penal Code. There was no unlawful assembly formed by the Respondents with common object to assault and commit murder of deceased Namdeo and assault Vinayak. The counsel further submitted that Respondent Nos.1, 2, 3, 4 and 8 were in jail for 1 year and 3 months during the trial. 14. Shri. Patil, the learned A.P.P. submitted that the trial Court committed error in acquitting all the accused persons from all the charges. The evidence of injured eye witness PW-2 Vinayak is worth reliable and inspires confidence in cria435.01 12 prosecution case. Complaint was promptly lodged. The deceased and PW-2 Vinayak were treated in hospital. In the light of several persons witnessing the incident, the trial Court committed error in acquitting the accused persons, which has caused miscarriage of justice. All the accused persons were sitting in the house of Hiraman and when they noticed Namdeo, they came out of house with deadly weapons and assaulted deceased. Therefore, charges levelled against the accused persons with the aid of Section 149 and 34 of the Indian Penal Code were established and therefore order of acquittal is required to be reversed and Respondents shall be convicted for the offences they were charged. 15. We have perused the evidence on record and considered the submissions advanced. The principles behind considering an Appeal against acquittal under Section 378 of the Code of Criminal Procedure are no more res integra. The cria435.01 13 principles were restated by the Apex Court in the reported Judgment in the case of C. Mangesh and others vs. State of Karnataka, (2010) 5 Supreme Court Cases, 645 in para 36, which reads thus: "36. In an appeal preferred under Section 378 Cr.P.C., no doubt, it is true that the High Court has ample powers to go through the entire evidence and to arrive at its own conclusion but before reversing the finding of acquittal, following conditions should be always kept in mind, namely, (i) the presumption of innocence of the accused should be kept in mind; (ii) if two views of the matter are possible view favourable to the accused should be taken; (iii) the appellate Court should take into account the cria435.01 14 fact that the trial judge had the advantage of looking at the demeanour of the witness; and (iv) the accused is entitled to the benefit of doubt. But the doubt should be reasonable that is the doubt which a rational thinking man with reasonable honesty and consciously entertained, more so, when the larger question with regard to treating Ext. P-29 and Ext. P-30 as dying declarations itself had become questionable." 16. From the evidence on record, we find that evidence of injured eye witness PW-2 Vinayak is of greatest probative value. This witness was assaulted by the original accused persons. His presence cannot be doubted at the spot. Medical evidence supports his version that he was assaulted. PW-2 Vinayak had referred to three names as assailants of deceased Namdeo, i.e. No.1 cria435.01 15 - Hiraman, No.2- Ramkrishna and No.3- Ashok. Though other witnesses who claims to be eye witnesses, have even referred to Respondent No.3 - Balwant as an assailant of deceased Namdeo, but considering the evidence in its entirety, medical evidence, we do not find that role attributed to Balwant as assailant of deceased Namdeo with a dangerous weapon like iron bar, is established beyond reasonable doubt. Hiraman and Ashok assaulted PW-2 Vinayak, according to prosecution, with the help of iron bar and the stick respectively. Hiraman had assaulted deceased Namdeo with iron bar on head and Ramkrishna and Ashok assaulted with wooden bar on the head of the deceased. Considering the spot of incident, we find that houses of prosecution witnesses, deceased Namdeo and the original accused persons were not far away from each other but comparatively they were close. 17. The genesis of the prosecution story cria435.01 16 reveals that while Namdeo was proceeding on the road and when he came near Hiraman's house, the original accused persons came out of house of Hiraman and they started asking him about the issue relating to lamb of Hiraman climbing over roof of house of mother of Namdeo. The initiation of quarrel itself suggests that original accused persons did not form an unlawful assembly to assault and commit murder. The prosecution evidence is lacking to suggest that there was unlawful assembly with a common object to assault deceased Namdeo or to commit his murder, even if the prosecution attempted to show the roles attributed to the other original accused persons/ Respondents herein. 18. Considering the medical evidence, it is clear that deceased Namdeo was assaulted on the vital part of the body. He suffered injuries and due to which, he died. The death is homicidal. The injured eye witness PW-2 Vinayak had named the cria435.01 17 assailants with their individual role and weapons. He even stated that other Respondents also assaulted along with sticks on the person of deceased Namdeo. Considering entirety of the prosecution case, the medical evidence and the evidence of prosecution witnesses, we are not inclined to believe the prosecution case in respect of other assailants who had allegedly assaulted with sticks on the person of the deceased except Respondents - Hiraman, Ramkrishna and Ashok. 19. The next question which was raised by the defence, as to whether in the light of the charge framed, some of the Respondents could be convicted for assaulting deceased Namdeo and PW-2 Vinayak, in view of the fact that they were charged with the aid of Section 149 of Indian Penal Code. The charge was framed against the original accused persons with the aid of Section 34 of Indian Penal Code. Even in absence of charge under Section 34 cria435.01 18 of the Indian Penal Code, it is settled principle that in the given fact situation of the case, accused could be convicted with the aid of Section 34 of the Indian Penal Code though they were charged with the aid of Section 149 of Indian Penal Code along with the substantive offence. 20. Shri. Bora, learned counsel appearing for Respondents has referred to the reported Judgment in the case of Virendra Singh vs. State of Madhya Pradesh, (2010) 8 Supreme Court Cases, 407 in respect of provisions of Section 34 and Section 149 of the Indian Penal Code and the distinction between two provisions. The distinction is culled out in Para 46 of the said Judgment, which reads thus: "Distinction between Section 34 and Section 149 of the Penal Code. 46. (i) Section 34 does not by itself create any specific cria435.01 19 offence, whereas Section 149 does so; (ii) Some active participation, especially in crime involving physical violence, is necessary under Section 34, but Section 149 does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in preparation and commission of the crime; (iii) Section 34 speaks of common intention, but Section 149 contemplates common object which is undoubtedly wider in its scope and amplitude that intention; and (iv) Section 34 does not fix a minimum number of persons who must share the common intention, whereas Section 149 cria435.01 20 requires that there must be at least five persons who must have the same common object." 21. Considering the reasoning adopted by the trial Court, we find that acquittal of Respondents namely, Hiraman, Ramkrishna and Ashok was erroneous. In the light of the evidence on record, the trial Court failed to consider the application of provisions of Section 34 of the Indian Penal Code. These Respondents/ original accused persons had actively participated in commission of crime. Common intention to assault could very well be gathered from their acts, whereas in respect of other original accused persons, such a common intention could not be gathered. We are therefore, not in agreement with the view adopted by the trial Court in this regard. The view of the trial Court in acquitting Hiraman, Ramkrishna and Ashok would amount to miscarriage of justice, in our view. cria435.01 21 22. The next issue would be as to whether the assailants of Namdeo intended to commit murder of deceased. From the medical evidence, motive and considering element of mens-rea, we are of the view that the prosecution has failed to establish beyond reasonable doubt, that these Respondents intended to commit murder of deceased Namdeo. From the evidence on record, it could safely be ascertained that these Respondents intended to cause severe injuries to deceased Namdeo and cause injuries to Vinayak. 23. Learned counsel Shri. Bora appearing for Respondents submitted that this Appeal is being heard after about 25 years from the date of incident and considering the age of Respondents, triviality of the incident in question and in view of the principles settled in considering Appeal against acquittal, leniency be shown by this Court while awarding sentence. cria435.01 22 24. Considering the submissions advanced and the evidence on record, we are convinced that Respondent Nos. 1, 2 and 4 have committed an offence under Section 325 read with Section 34 and Section 324 read with Section 34 of the Indian Penal Code. Considering the evidence on record and the submissions advanced, we find appropriate to award sentence for the period during which the Respondent Nos. 1, 2 and 4 were behind bars during pendency of the trial. 25. Considering in its entirety the material placed on record and the reasoning adopted by the trial Court, we are of the view that the State Appeal deserves to be partly allowed. We therefore pass following order: O R D E R (I) State Appeal is partly cria435.01 23 allowed. (II) The Judgment and order dated 21st March, 1986 recorded by Additional Sessions Judge, Jalgaon in Sessions Case No.29 of 1985, acquitting Respondent No.1- Hiraman Tulshiram Sonne, Respondent No.2 - Ramkrishna Tulshiram Sonne and Respondent No.4 - Ashok Kashinath Jadhav, is quashed and set aside. They are convicted for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code and sentenced to suffer simple imprisonment for the period during which they were under trial prisoners and to pay fine of Rs.5000/- (Rupees Five Thousand) each, and in default of payment of fine amount, to suffer further simple imprisonment for the period of six months. cria435.01 24 (III) The Respondent No.1 - Hiraman Tulshiram Sonne, Respondent No.2 - Ramkrishna Tulshiram Sonne and Respondent No.4 - Ashok Kashinath Jadhav, are convicted for the offence punishable under Section 324 read with Section 34 of Indian Penal Code and sentenced to suffer simple imprisonment for 6 months. (IV) Both the sentences shall run concurrently. (V) These Respondents are entitled for the benefit of set off for the period already undergone during the course of trial. (VI) State Appeal stands dismissed against Respondent Nos.3, 5, 6, 8, 9 and 10. [T.V. NALAWADE, J.] [NARESH H. PATIL, J.] asb/APR11/cria435.01