1 (APEAL1321.03 WITH APEAL 1314.03) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1321 OF 2003 1. Somling Ramanna Patrigida, ) Age 35 years, ) ) 2. Yallappa Ramanna Patrigida, ) Age 38 years, ) ) 3. Maruti Ramanna Patrigida, ) Age 45 years, ) ) 4. Ramanna Shivningappa Patrigida, ) Age 19 years ) ) All R/o. Jeur Tal. Akkalkot, )... Appellants. Dist. Solapur )(Orig. accused Nos. 1,3, 5 and 6) V/s The State of Maharahstra ) through Akkalkot South Police ) Station, Akkalkot Dist. Solapur ) ... Respondent. ---- Mr. S.R. Chitnis, Senior Counsel i/b Mr. Sandeep Salunkhe for Appellants. Mr. F.R. Shaikh, APP for the State. ---- 2 (APEAL1321.03 WITH APEAL 1314.03) WITH CRIMINAL APPEAL NO.1314 OF 2003 1. Shivnagappa Ramanna Patrigida, ) Age 48 years, ) ) 2. Bhojraya Ramanna Patrigida, ) Age 46 years, ) ) 3. Deelip Shivningappa Patrigida, ) Age 22 years, ) ) 4. Daulappa Maruti Patrigida, ) Age 21 years. ) )... Appellants All R/o. Jeur Tal. Akkalkot, Dist. Solapur,)(Org.Accused Nos. 2, 4, 9 and 10) V/s The State of Maharashtra ) through Akkalkot Sough Police ) Station, Akkalkot, Dist. Solapur ) ...Respondent ---- Mr. A.P. Mundargi, Senior Counsel i/b Mr. Sandeep Salunkhe for Appellants. Mr. F.R. Shaikh, APP for the State. ---- CORAM: V. M. KANADE & A.M. THIPSAY, JJ. DATE : 18th August, 2011 3 (APEAL1321.03 WITH APEAL 1314.03) ORAL JUDGMENT: (Per V.M. Kanade, J.) 1. Heard the learned Senior Counsel appearing on behalf of the appellants in both these appeals and the learned APP appearing on behalf of the State. 2. Both these appeals can be disposed of by a common judgment since both these appeals are arising out of the judgment by which the appellants have been convicted by the Sessions Court. 3. The appellants in Criminal Appeal No.1314 of 2003 are original accused Nos. 2, 4, 9 and 10 and the appellants in Criminal Appeal No.1321 of 2003 are original accused Nos. 1, 3, 5 and 6. The appellants shall be hereinafter referred to as “original accused”. 4. The original accused/appellants are challenging the judgment and order passed by the 4th Additional Sessions Judge, Solapur who, by his judgment and order dated 4 (APEAL1321.03 WITH APEAL 1314.03) 3/10/2003, was pleased to convict the appellants for the offence punishable under section 302 read with section 149 of the Indian Penal Code and they were sentenced to suffer life imprisonment and were directed to pay fine of Rs 1000/- each and, in default of payment of fine, they were to suffer rigorous imprisonment for six months. They were also convicted for the offence punishable under section 325 read with section 149 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and that they were directed to pay fine of Rs 500/- each and, in default of payment of fine, they were to suffer rigorous imprisonment for two months. They were also convicted for the offence punishable under section 323 read with section 149 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three months and that they were directed to pay fine of Rs 400/- each and, in default of payment of fine, they were directed to suffer rigorous imprisonment for one month. Lastly, they were also convicted for the offence punishable under sections 147 and 148 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 5 (APEAL1321.03 WITH APEAL 1314.03) three months and that they were directed to pay fine of Rs 300/- each and, in default of payment of fine, they were directed to suffer rigorous imprisonment for one month on both the counts. These sentences were directed to run concurrently. 5. Brief facts are as under:- 6. In the present case, prosecution has alleged that all accused had demolished a common boundary wall which is known as Bandh in local parlance and it was demolished on 19/4/2002 in the morning at 11.00 a.m and they had threatened P.W.6 – Remesh that they were going to construct a bungalow on the said portion and that they would murder the persons from his family if they obstruct the accused. According to prosecution, P.W.6 was chased away from that site and, later on, in the afternoon, at about 2.00 p.m. to 2.30 p.m., he heard shouts of his uncle Nagappa. When P.W. 3 – Basappa went there, he noticed that all the accused were assaulting Nagappa with lethal 6 (APEAL1321.03 WITH APEAL 1314.03) weapons and the accused No.1 – Somling gave a knife blow to deceased Nagappa and pulled out his intestine and others also assaulted him with swords. The other prosecution witnesses viz P.W.4 and 5 were also assaulted and received injuries. According to prosecution, the injured witnesses, including the deceased Nagappa, were taken to the Civil Hospital where Nagappa was operated. However, he succumbed to the injuries after four days on 24/4/2002. The other injured persons from the complainant’s side were also treated by the doctor. FIR, initially, was registered at Sadar Bazar Police Station, Solapur at about 9.30 p.m. and, later on, it was transferred to the Akkalkot South Police Station and was registered as FIR No.26 of 2002 at about 11.55 p.m. A cross complaint which was filed on behalf of the original accused was also registered as CR No.25 of 2002. 7. All the accused were arrested in connection with commission of the said offence. Their blood stained clothes were seized. Discovery of the weapons was made at the instance of accused No.1. Charge-sheet was filed. The 7 (APEAL1321.03 WITH APEAL 1314.03) cross-complaint filed by accused was tried by the Magistrate who was pleased to acquit the accused in the said case i.e the complainant and persons from his family. However, Sessions Court convicted the accused in this case. 8. On the one hand, the version of the prosecution in this case is that the original accused assaulted the complainant, deceased Nagappa and other members of his family with an intention to commit murder and all of them attacked persons from the complainant’s family and the incident took place near Bandh and the place where Bandh was demolished by the accused. On the other hand, it is the defence of the accused that the complainant and his family members came near Wasti of the accused and questioned them about demolition of the Bandh and there was an altercation and the accused were assaulted initially by the other side and in self defence they retaliated and, in that free fight, one of the persons from the complainant’s side died and six persons from the side of the accused received grievous injuries. 8 (APEAL1321.03 WITH APEAL 1314.03) 9. It was submitted by the learned Senior Counsel appearing on behalf of the original accused that genesis of the offence has been suppressed by the prosecution and that no satisfactory explanation has been given by them regarding injuries which were caused to the accused. It was, therefore, submitted that the entire prosecution version was false and could not be relied upon and that this was a fit case where all the accused were liable to be acquitted. It was contended that the prosecution witnesses had made number of improvements in their evidence and omissions and contradictions had been brought on record by the accused which clearly established that the original accused were not the real aggressors in the said incident and that they had only acted in self-defence. Alternatively, it was submitted that there was sudden free fight between the two groups and, therefore, the offence under section 302 was not made out and that the case of the accused would fall under exception 4 to section 300 IPC and, therefore, at the highest, they could be convicted for the offence punishable under section 304, Part-II of the IPC. Our attention was 9 (APEAL1321.03 WITH APEAL 1314.03) invited to the charge framed by the Court, spot panchanama at Exhibit-38 and also to the contradictions and improvements made by the witnesses which established that the prosecution witnesses in their statement before the police had clearly stated that the incident had taken place near the place of residence of the accused. It was then submitted that the prosecution had suppressed the FIR which was registered at their behest at Akkalkot Police Station being C.R. No.25 of 2002. It was also submitted that the defence had brought on record the injury certificates in the cross-examination of the doctor who was examined by the prosecution. It was submitted that the Investigating Officer had deliberately not produced the said Certificates in the examination-in-chief of the said doctor. It was submitted that the prosecution had suppressed the vardi which was sent by Akkalkot Police Station to the Civil Hospital, Solapur where the deceased and other prosecution witnesses were examined. Reliance was placed on the judgments of the Supreme Court in support of the said submission in Lakshmi Singh and others vs. State of Bihar1 and in Babu Ram and 1 (1976) 4 SCC 394 10 (APEAL1321.03 WITH APEAL 1314.03) others vs. State of Punjab1 10. Mr. Chitnis, the learned Senior Counsel appearing on behalf of accused No.1 also submitted that no reliance could be placed on the recovery of the weapons at the instance of accused No.1 and, therefore, the said recovery could not be used as corroborative piece of evidence in favour of the prosecution. It was submitted that accused No.1 had clearly stated that he had shown his willingness to show the place where weapons were concealed by all the accused. It was submitted that since the authorship of concealment was not restricted to accused No.1 alone, no reliance could be placed on the said recovery under section 27 of the Evidence Act. Reliance was also placed on the judgment of the Apex Court in Pohalya Motya Valvi vs. State of Maharashtra2. 11. On the other hand, the learned APP appearing on behalf of the State has taken us through the judgment and order passed by the Trial Court and submitted that the Trial Court 1 (2008) 3 SCC 709 2 (1980) 1 SCC 530 11 (APEAL1321.03 WITH APEAL 1314.03) has given cogent reasons while convicting the appellants herein for the offence punishable under section 302 read with section 149 of the IPC and under section 325, 323, 147 and 148 of the IPC. He submitted that so far as the site of offence is concenred, the Trial Court, after going through the spot panchanama, had observed that the incident had taken place at four different places. He submitted that the spot panchanama clearly indicated that blood-stains were found at four places, some of which were far away from the residence (Wasti) of the appellants. He submitted that the deceased was stabbed by accused No.1 in the stomach and, as a result of the said stab wound, his intestine had come out and there was perforation of the intestine. He submitted that accused No.1 also assaulted him on the hand with sword and other accused also had assaulted him with sword. He submitted that, therefore, there was clearly a common intention which was shared by all the accused and as members of unlawful assembly with common object, they had assaulted the deceased with an intention to inflict injury which is sufficient in the ordinary course of nature to 12 (APEAL1321.03 WITH APEAL 1314.03) cause death. He relied upon the judgment of the Apex Court in Sikandar Singh and others vs. State of Bihar1 He, therefore, submitted that the appeals filed by the appellants be dismissed. R E A S O N S 12. The questions which fall for consideration before this Court are (i) whether the prosecution has established that the accused had committed an offence punishable under section 302 read with section 149 of the IPC? (ii) whether the prosecution has failed to establish the genesis of the offence as a result of non-explanation of injuries on the person of the accused and as a result of defence of self- defence taken by the accused & alternatively whether the case of the accused fell within exception 4 to section 300 IPC and as a result they were entitled to be acquitted? and (iii) whether the prosecution has established that the other accused had shared the common object of the unlawful assembly or as members of that assembly knew that the murder of the deceased was likely to be committed in 1 (2010) 7 SCC 477 13 (APEAL1321.03 WITH APEAL 1314.03) prosecution of the common object? 13. Before we consider the rival submissions, it will be necessary to examine the settled legal position in respect of (a) distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder, (b) consequence of the prosecution failing to establish the genesis of the offence and the site at which the offence took place and the non-explanation of injuries caused to the accused. (a) Distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder:- In order to find out distinction between the two, it is necessary to understand the scheme adopted in the Code in defining the culpable homicide and murder. Culpable homicide is defined in section 299 of the IPC and it is genus, whereas murder is defined in section 300 of the IPC and it is specie. Under section 299 of the IPC, whoever causes death 14 (APEAL1321.03 WITH APEAL 1314.03) with the intention or knowledge specified in that section, commits offence of culpable homicide. However, since culpable homicide is only genus, it includes two forms; one is the graver offence which amounts to “murder” and lesser one which does not amount to murder. It can be seen that, therefore, though the offence of culpable homicide is defined, the said provision does not provide for any punishment for that offence as such and, for the purpose of punishment, the Court has to examine facts and find out whether the offence falls or does not fall under the definition of “murder” under section 300 of the IPC. In view of this scheme, therefore, every act of homicide falls within the definition of culpable homicide in section 299 of the IPC. Section 300 of the IPC on the one hand mentions that a homicide is murder. However in that section 5 exceptions have been given and these exceptions lay down the circumstances in which the act which causes death is not murder even though it may have been done with the intention or knowledge specified in section 300 of the IPC. The question of punishment which has to be awarded, 15 (APEAL1321.03 WITH APEAL 1314.03) therefore, is twofold viz (1) what was the intention or knowledge with which the act was done and (2) what were the circumstances in which it was done. If it is established that the offence is culpable homicide but it is of such nature that it does not fall within the definition of “murder” in section 300 of the IPC or even though it does, if it falls under any of the exceptions to that section, the offence is punishable under section 304 of the IPC. Once it is held that offence falls under section 304 of the IPC, then the punishment differs, depending upon whether death is caused with an intention or only with knowledge and, therefore, if the element of intention exists the offence is punishable under Part-I of section 304 of the IPC, otherwise the offence falls under Part-II of section 304. In the former case, punishment may extend to imprisonment for life and in the later case it may extend up to a term of 10 years. The distinction can be very succinctly shown in the following manner:- 16 (APEAL1321.03 WITH APEAL 1314.03) Culpable Homicide (Genus) ! (Specie) ! (Specie) ---------------------------------------------------------------- ! ! ! ! Murder(sec.302 IPC) Not amounting to murder(sec.304 IPC) ! ! ! ! (a) with the intention 1. with the intention of of causing death, or causing such bodily injury (b) with the intention as is only likely to cause of causing bodily injury, death, or and the injury intended to be inflicted is 2. with the knowledge that sufficient in the ordinary the act done is only likely to course of nature cause death to cause death, or (c) with the knowledge that the act done is so OR imminently dangerous, that it must in all probability cause death 3. if that act is done under such circumstances as to AND bring it within any of the exceptions to section 300, If that act is not done under even though it may have such circumstances as been done with such intention to bring it within any of or knowledge as is specified the Exceptions to section in section 300. 300. Note: However, in order to make the offence fall under section 302 both the conditions have to be satisfied before convicting the accused for murder. 17 (APEAL1321.03 WITH APEAL 1314.03) So far as the distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder is concerned, the Apex Court in State of Andhra Pradesh vs. Rayavarapu Punnaya and another1 has very succinctly laid down the guidelines which are to be followed in such case, in para 21 and 22 of its judgment which read as under:- “21. From the above conspectus it emerges that whenever a court is confronted with the question whether the offence is ‘murder’ or ‘culpable homicide not amounting to murder’ on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable 1 AIR 1977 SC 45 18 (APEAL1321.03 WITH APEAL 1314.03) homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of ‘murder’ contained in Section 300. If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or third Clause of sec. 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the First Part of Section 304, Penal Code”. “22. The above are only broad guidelines and not cast-iron imperatives. In most 19 (APEAL1321.03 WITH APEAL 1314.03) cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.” The Apex Court also had an occasion to consider what the prosecution has to prove to bring the case under section 300 “thirdly” of the IPC. In Virsa Singh vs. State of Punjab1, the Apex Court was called upon to consider whether the said case fell under section 300 “thirdly” of the IPC. In the said case, appellant was tried with five others under section 302 read with section 149, section 324 read with section 149, section 323 read with section 149 of the IPC and the appellant was also individually charged under section 302 of the IPC. The others were acquitted of the same charge by the Trial Court. Two were convicted under sections 326, 324 and 323 read with section 149 of the IPC. In appeal, however, the other accused were acquitted. The Trial Court 1 AIR 1958 SC 465 20 (APEAL1321.03 WITH APEAL 1314.03) convicted the appellant under section 302 of the IPC and his conviction and sentence were upheld by the High Court. Facts were that there was only one injury on Khem Singh and both the Courts held that appellant had caused death. It was caused as a result of spear thrust and the doctor who examined Khem Singh while he was still alive, said that it was “a punctured wound 2” x 1/2” transverse in direction o the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal.” He also said that “Three coils of intestines were coming out of the wound.” The doctor gave an opinion that injury was sufficient to cause death in the ordinary course of nature. In this context the Apex Court observed as under:- ...but the leave is limited to “the question that on the finding accepted by the Punjab High Court what offence is made out as having been committed by the petitioner.” It was argued in the said case on behalf of the defence that the intention that the section requires must be related, not 21 (APEAL1321.03 WITH APEAL 1314.03) only to the bodily injury inflicted, but also to the clause, “and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death”. The Apex Court in this context has observed in paras 12 and 13 of its judgment in the said case as under:- “(12) To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 “thirdly”; First, it must establish quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is 22 (APEAL1321.03 WITH APEAL 1314.03) sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.” “(13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient 23 (APEAL1321.03 WITH APEAL 1314.03) to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise