1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. Criminal Appeal No. 13/2004 Sunil s/o Uttam Sange, aged about 24 years, Occpation: Nil R/o: Vivra, Tq. Patur, Distt. Akola. ...Appellant VERSUS State of Maharashtra, through P.S.O.Channi, Tq. Patur, District: Akola. ... Respondent .... Mr. V.M. Deshpande, Advocate for the appellant. Mr. T.A.Mirza, A.P.P. for the respondent. ..... Criminal Appeal No. 79/2004 Laxman Vasanta Sange, Aged about 35 years, Resident of Vivra, Tahsil Patur, District Akola. ....Appellant .VERSUS. The State of Maharashtra, through P.S.O. Channi, District Akola. ....Respondent ..... 2 Mr. A.P. Chaware, Advocate (appointed) for appellant. Mr. T.A.Mirza, A.P.P. for respondent. .... CORAM : A.P. LAVANDE & Prasanna B. Varale, JJ . DATE : 16 /11/2009 JUDGMENT (A.P.LAVANDE, J) Both these appeals are being disposed of by common Judgment and order since they arise out of the Judgment and order dated 4.12.2003 passed by the Additional Sessions Judge, Akola in Sessions Trial No. 94/99 . By the impugned Judgment Sunil Sange – accused no.1 and Laxman Sange – accused no. 2 in Sessions Trial No. 94/99 have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- each in default to undergo R.I. for three months. They further have been convicted for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code and sentenced to undergo R.I. for six months and to pay a fine of Rs. 200/- in default to undergo R.I. for one month . Sunil Sange – accused no.1 is further convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to undergo R.I. for six months and to pay a fine of Rs. 200/- in default to undergo R.I. for one month. Both these accused have been acquitted for the offences punishable under sections 3 307, 504 and 506 (II) read with Section 34 of the Indian Penal Code. Accused no.3 Sau. Usha Laxman Sange and accused no. 4 Ku. Mangala Uttam Sange have been acquitted of all the offences for which they were charged. 2. Briefly, the prosecution case is as under: Accused no. 3 Usha is the wife of accused no.2 Laxman Sange and accused no.1 Sunil is the brother of accused no. 4 Mangala Sange. One Tulshiram (P.W.7) is the resident of Vivra, Tq. Patur. He has one house for residence and one structure for use of cattles and as godown. Both the accused were residing on the southern side of the structure of Tulshiram (P.W.7) where he used to keep cattles. On 4.2.1999 there was unseasonal rain. The water from bath room was passing in the north-south direction and the water from the eves of the house of accused no.1 Sunil was falling in his property and was passing through the drain in the property of Tulshiram. Accused no. 1 Sunil told Tulshiram that passing of water from his property was stopped due to blockage of the drain. Then Tulshiram and his wife went to see the position on the site. At about 6.00 p.m. both of them started cleaning drain by removing mud from it. In the meantime, both the accused came to the bath room and started abusing loudly. Tulshiram and his wife came out. Both the accused were standing with iron bars in their hands. Accused no. 2 Laxman assaulted Tulshiram with iron bar on his head and he sustained bleeding 4 injuries. Accused no. 1 Sunil assaulted Suman with iron bar on her head. On account of the blows she fell on the ground and sustained bleedings injuries and her clothes were stained with blood. Vilas Borale (P.W. 8) and Prakash Borale (P.W. 10) came on the spot and and all of them took Tulshiram and Suman in their house and from there they were taken to the hospital in the metador. P.W. 1 Dr. Dashrath referred Suman for city scan and after seeing the report she was referred to Nagpur. On 5.2.1999 they went to Nagpur and injured Suman was admitted to the Government Hospital. Suman expired on 13.2.1999. She was unconscious till her death. P.W. 8 Vilas lodged report at P.S. Channi vide Crime No. 8/99 under Sections 307, 324, 504 and 506 read with Section 34 of the Indian Penal Code pursuant to which First Information Report was registered. After the death of Suman offence under Section 302 of the Indian Penal Code was added. The accused were arrested, investigation was taken up and after completion of investigation charge sheet was filed in the court of Judicial Magistrate First Class, Nagpur. Since the case was exclusively triable by the Court of Sessions case was committed. 3. In Sessions Trial No. 94/99 the prosecution examined 19 witnesses and produced several documents to prove the case against the accused. The defence of the accused was of denial. The learned Additional Sessions Judge upon appreciation of the evidence led by the prosecution convicted 5 the accused nos. 1 and 2 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The learned Judge also convicted accused nos. 1 and 2 for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code for causing injuries to Tulshiram. The learned Judge also convicted accused no.1 Sunil for the offence punishable under Section 324 of the Indian Penal Code for causing injuries to Sapna Borale (P.W.9) by iron rod. The learned Judge acquitted accused nos. 3 and 4 of all the offences for which they were charged. 4. Criminal Appeal No. 13/2004 has been filed by accused no.1 Sunil Sange and Criminal Appeal No. 79/2004 has been filed by accused Laxman Sange. Since accused no. 2 Laxman was not represented by any lawyer, Advocate Mr. A.P. Chaware was appointed under legal aid scheme to appear on her behalf. 5. Mr. V.M. Deshpande, learned counsel for appellant no.1 in Criminal Appeal No. 13/2004 at the outset submitted that he is restricting his challenge to the impugned Judgment to the extent of conviction of accused no.1 Sunil for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. He further submitted that having regard to the nature of the evidence oral as well as medical the accused no.1 Sunil at the most is liable to be convicted for the offence 6 punishable under Section 304 Part I of the Indian Penal Code. He further submitted that the conviction of accused no.1 Sunil for the offence punishable under Section 324 and 324 read with Section 34 of the Indian Penal Code is liable to be set aside inasmuch as there is no evidence to prove the said offences. 6. Mr. Chaware, learned counsel appearing for appellant Laxman Sange (original accused no.2) submitted that the conviction of accused no. 2 Laxman Sange for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is liable to be set aside inasmuch as the prosecution has not been able to establish common intention of accused no. 2 Laxman with accused no.1 Sunil to cause murder of deceased Suman. According to the learned counsel, the incident happened all of a sudden and, therefore, the circumstances brought on record by the prosecution do not prove common intention on the part of accused no.2 Laxman to cause murder of Suman. He further submitted that the conviction of accused no.2 Laxman for the offence punishable under Section 324 of the Indian Penal Code for assaulting Tulshiram also is liable to be set aside. 7. Per contra, Mr. T.A. Mirza, learned A.P.P. supported the impugned Judgment and order. 8. In view of the limited challenge thrown to the 7 impugned Judgment by the learned counsel for the appellants we do not deem it necessary to go into the entire prosecution evidence in detail and would refer to the relevant evidence only. 9. The evidence of P.W. 15 Dr. Magan Vayvahare who conducted post mortem on the dead body of Suman on 13.2.1999 discloses that he found the following injuries on the dead body of Suman. 1. Surgical intervention in as 6 wounds with 11 stitches over right parietal region. 2. Stitched wound over right occipital region with 5 stitches. 3. Stitched wound over left occipital region with stitches. He further deposed that all the injuries were ante mortem and on internal examination he found the following injuries; 1. Depressed fracture over left parietal region transverse, of size 6 cms.; 2. Depressed fracture over frontal region – vertically placed of size 5 cms.; 3. Depressed fracture over right parietal region, vertically placed of size 6 cms.; 4. Fissured fracture, over right occipital region, transversed 8 of size 4 cms.. He identified his signature on post mortem report Exh. 84 and stated that contents were correct. According to the witness these injuries were sufficient in the ordinary course of nature to cause death of Suman. The evidence of this witness is corroborated by inquest panchanama. Therefore, the prosecution has been able to prove that deceased Suman died homicidal death. The evidence is also corroborated by the evidence of P.W. 14 Sunneta Meshram who had examined Suman on 4.2.1999 and she has deposed that she found injuries on the person of Suman when she was examined her on 4.2.1999. P.W. 16 Abid Husain Sadik Husan who examined Tulshiram on 4.2.1999 at District Hospital, Akola found following injury on the person of Tulshiram. Lacerated wound on frontal region of scalp of size 5 cm. X 1 cm.. The age of injury was 12 hours. He identified his signature on certificate Exh. 92 and opined that injury could have been caused by hard and blunt object like iron bar (Article 1) which was shown to him. Thus, the evidence of the above witnesses clearly proves that Suman died of homicidal death and injured Tulshiram had injuries on his head. 9 10. To prove the complicity of both the accused in the crime the prosecution examined injured Tulshiram Burale who deposed about inter se relationship of the accused. He further deposed that the accused were his relatives. He further deposed that on 4.2.1999 there was unseasonal rain. He further deposed that accused no.1 came and told him that water from the eves of his house which was passing through the property of Tulshiram was stopped due to blockage of drain. Thereafter, he and his wife came to the spot at about 6.00 p.m. and started clearing drain by removing mud. Thereafter, accused no.1 Sunil and accused no. 2 Laxman came and started abusing them. They came there with iron bars. Accused no. 2 Laxman assaulted him by iron bar on his head and accused no.1 Sunil assaulted his wife Suman and she suffered injuries on her head and fell on the ground. The iron bar which was with Laxman was about 2 ½ ft. in length. He identified Article 1 as iron bar which was used. He further deposed that the other bar was about 4 ft. in length and was having hook to the other end. He identified Article 2 as bar which was in hand of accused Sunil. In the cross examination nothing tangible has been brought on record. The evidence of this witness also stands corroborated by the evidence of P.W. 8 Vilas who is the nephew of Tulshiram. He lodged report. He has substantially corroborated the evidence of P.W. 7 Tulshiram. Thus, the evidence of these two witnesses is more than sufficient to establish the complicity of both the accused 10 in the commission of the crime. The evidence of the above referred eye witnesses clearly suggests that the incident occurred on account of petty dispute regarding passage of water through the drain from the property of Tulshiram. The evidence of above referred witness clearly suggests that on account of petty dispute accused no.2 assaulted P.W. 7 Tulshiram on his head with iron bar and accused no.1 Sunil assaulted Suman on her head causing her injuries which resulted in her death. The question which arises for consideration is whether offence punishable under Section 302 of the Indian Penal Code is made out and as against whom. Having regard to the manner in which incident occurred which resulted in the death of Suman it is difficult to hold that accused no.1 Sunil shared common intention with accused no. 2 Laxman to cause injuries to deceased Suman which resulted in her death. No doubt common intention can develop in spur of moment but having regard to the totality of the circumstances brought on record through the prosecution witnesses it is difficult to hold that accused no.1 shared common intention with accused no.2 to cause injuries to deceased Suman which resulted in her death. In our considered opinion accused no.1 Sunil is responsible for causing injuries to Suman which resulted in her death and accused no. 2 Laxman can not be held vicariously liable for the said offence with the aid of Section 34 of the Indian Penal Code. 11 11. The next question which arises for consideration is whether the offence punishable under Section 302 of the Indian Penal Code is made out against accused no.1 Sunil . As stated above, the incident occurred all of a sudden on account of petty dispute. The evidence of above referred two witnesses does not disclose that accused Sunil gave repeated blows on the head of Suman resulting in her death. The attack was not preplanned. The Apex Court in Pulicherla Nagaraju alias Nagaraja Reddy vs. State of Andhra Prade (AIR 2006 Supreme Court, 3010) has laid down several factors which are relevant for deciding whether offence punishable under Section 302 or 304 (I) of the Indian Penal Code is made out against the accused. It would appropriate to quote para 18 of the said Judgment which reads as under; “18. Therefore, the court should proceed to decide the pivotal question of intention with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion 12 may be totally absent in such cases. There may be no intention. There may be no pre- meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302 are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, amount other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- medication; (vii) whether there was any prior 13 enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 12. Considering the totality of the circumstances and the injuries found on the person of Suman and applying the above referred tests laid down by the Apex Court we are of the considered opinion that the offence punishable under Section 304 Part I of the Indian Penal Code is made out against the accused no.1 Sunil and not under Section 302 of the Indian Penal. The evidence on record clearly establishes that accused no.2 Laxman did not share common intention with Sunil to cause injuries to deceased which were likely to cause her death. Therefore, in our considered opinion the offence under Section 304 Part I is made out against him. 14 13. Insofar as accused no. 2 Laxman is concerned we have already held that he can not be held liable for culpable homicide death of Suman with the aid of Section 34 of the Indian Penal Code. Therefore, he is held to be acquitted for the offence punishable punishable under Section 302 read with Section 34 of the Indian Penal Code for which he has been convicted by the learned Additional Sessions Judge. 14. Insofar as assault on Tulshiram by the accused no.2 Laxman is concerned the same stands corroborated by the evidence of the above referred two eye witnesses as well as medical evidence and, therefore, we have no hesitation to hold that the conviction of the accused no.2 Laxman for the offence punishable under Section 324 of the Indian Penal Code does not deserves any interference. However, we find it extremely difficult to hold that accused no.1 Sunil shared common intention with accused no.2 Laxman to cause injuries to Tulshiram (P.W.9). Therefore, accused no.1 Sunil is liable to be acquitted for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code for causing injuries to Tulshiram. Insofar as the conviction of accused no.1 Sunil for the offence punishable under Section 324 of the Indian Penal Code for causing injuries to P.W. 9 Sapna is concerned we find it extremely difficult to place reliance on the testimony of P.W. 9 Sapna who claims that accused no.1 Sunil assaulted her with an iron bar when she had gone to Gram Panchayat. It is 15 difficult to accept her testimony inasmuch that after causing the death of deceased Suman accused no.1 Sunil would go to Gram Panchayat with iron bar and assault Sapna Burale. We are, therefore, of the considered opinion that the conviction of accused no.1 Sunil for causing injuries to Sapna (P.W.9) is also liable to be set aside and it is hereby set aside. 15. In view of the above, we hold that accused no.1 Sunil is liable to be convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and his conviction for the offence punishable under Section 324 as well as 324 read with Section 34 of the Indian Penal Code is liable to be set aside. The conviction of accused no.2 Laxman for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is liable to be quashed and set aside. However, his conviction and sentence for the offence punishable under Section 324 of the Indian Penal Code is liable to be maintained. 16. In the result, therefore, the Criminal Appeal Nos. 13/04 & 79/04 are partly allowed. The conviction of the appellant Sunil s/o Uttam Sange in Criminal Appeal No. 13/04 for the offence punishable under Section 302 read with Section 34 of Indian Penal Code is set aside and he is convicted for the offence punishable under Section 304 Part I of Indian Penal Code and sentenced to undergo R.I. for ten years and to pay a 16 fine of Rs. 5000/- and in default, to undergo R.I. for one year. Appellant Sunil s/o Uttam Sange is acquitted of the offence punishable under Section 324 read with Section 34 of Indian Penal Code. The conviction of the appellant Laxman Vasanta Sange in Criminal Appeal No. 79/04 for the offence punishable under Section 302 read with Section 34 of Indian Penal Code is quashed and set aside and he is acquitted of the said offence. His conviction and sentence for the offence punishable under Section 324 of Indian Penal Code imposed by the trial Court are maintained.. Both the appellants are given the benefit of set off in terms of Section 428 of Criminal Procedure Code. The appellant/ accused are ordered to be set at liberty forthwith if they have undergone the sentences imposed on them and if they are not required in any other cases. Fees payable to Shri A.P. Chaware, Advocate who has been appointed to appear on behalf of the appellant in Criminal Appeal No. 79/04 is quantified at Rs. 1500/-. Both the Criminal Appeals stand disposed of. 17 JUDGE JUDGE patle