sat 1 cri.appeal 254-91 & 255-91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 254 OF 1991 Ananta Soma Padvale ) Age 29 years, Occupation Labourer, ) residing at Sapana Bk., Tal. Wada, ) Dist.Thane – Indian inhabitant ) (The appellant is in the Central Jail ) at Thane) )...Appellant vs. The State of Maharashtra ...Respondent AND CRIMINAL APPEAL NO. 255 OF 1991 1. Shri Ramesh Ganpat Bhoir ) Age 28 years, Occ: agriculturist, ) 2. Shri Ganpat Hari Bhoir, ) Age : 55 years, Occ.agriculturist, ) 3 Shri Madhukar Balu Jahdav, ) Age 30 yrs., Occ.Labour, ) (Nos.1 to 3 are Indian inahbitants ) and are residing at Village Sapana, ) B.K., Tal.: Wada, Dist.Thane.) )...Appellants vs. The State of Maharashtra ...Respondent Mr.Abhaykumar Apte, Advocate appointed from the Legal Aid Services for all the Appellants. Mr.J.P. Kharge, APP for the State. sat 2 cri.appeal 254-91 & 255-91 CORAM : V.M. KANADE AND M.L. TAHALIYANI, JJ. DATED : DECEMBER 01, 2011 ORAL JUDGMENT (PER M.L. TAHALIYANI, J.) :- 1 The appellants in both the appeals have filed two separate appeals being aggrieved by the judgment and order dated 31st January, 1991 passed by the 3rd Additional Sessions Judge, Thane. The appellant in Appeal No.254/91 was original accused no.3 and appellants in Appeal No.255/91 were the original accused nos.1, 2 and 4. [The appellant (original accused no.3) in Appeal No.254/91 will be referred to as ‘appellant no.1’ and appellants (Original accused no.1, 2 and 4) in Appeal No. 255/91 will be referred to as ‘appellant nos.2, 3 and 4, respectively.] 2 The appellant no.1 has been convicted for the offences punishable u/ss. 302 and 342 r/w. 34 of IPC. He has been sentenced to suffer imprisonment for life for the offence punishable u/s. 302 of IPC and has been sentenced to suffer sat 3 cri.appeal 254-91 & 255-91 rigorous imprisonment for a period of two months and to pay a fine of Rs.100/-, in default, to suffer further RI for ten days for the offence punishable u/s. 342 of IPC. 3 As far as appellant nos.2, 3 and 4 are concerned, they have been convicted for the offence punishable u/s. 342 r/w. 34 of IPC and have been imposed sentence similar to the sentence imposed on the first appellant. 4 As far as charges u/ss. 325, 506 and 338 of IPC are concerned, all the appellants have been acquitted of the said charges. 5 The alleged incident had occurred in the year 1984. It appears that there were two rival groups in the village Sapana Budruk in Wada Taluka of District Thane. There used to be frequent quarrels between the two groups. The appellants belonged to one of said two groups. As there was group rivalry in the village, there used to be frequent quarrels on very silly sat 4 cri.appeal 254-91 & 255-91 issues. The incident in question, had occurred on 31st August, 1984 at about 3 p.m. The complainant Mr.Dhau Jadhav had been returning from the shop of Chintaman Patil (PW 1) when the whole episode began. Appellant no.1 Ananta, who was accused no.3, had allegedly pelted a stone which hit the complainant on his neck. At the same time, appellant no.3 Ganpat Bhoir also threw a stone which hit the neck of the complainant. The complainant had fallen down in the result. Due to assault by means of stone, he started shouting. In the meantime, appellant no.2 Ramesh and the appellant no.1 lifted the complainant and took him inside the house of appellant no. 2. The complainant was tied by means of a rope to a pole inside the house of appellant no.2. It appears that the quarrel was going on for some time. 6 The deceased Narayan B. Jadhav reached the house of appellant no.2 on hearing commotion. He questioned the appellant no.1 and appellant no.2 as to why they had tied the complainant upon which the appellant no.1 had allegedly sat 5 cri.appeal 254-91 & 255-91 inflicted a blow by means of a wooden stick on head of the deceased. The deceased had fallen down due to stick blow. There was further commotion. In the meantime, the villagers Govind Pandu Sambre, Rama Ambo Parad, Ramu Kashinath Jadhav. also reached there. It is alleged that the appellant no.3 Ganpat Bhoir, appellant no.4 Madhukar Jadhav pelted stones and assaulted members of opposite group by means of sticks. In that process, Ramu Kashinath Jadhav, Rama Ambo Parad and Govind Pandu Sambre and others had sustained injuries. 7 The deceased Narayan Jadhav was taken to the hospital. The complainant was released during the course of abovestated incident and he had directly gone to the police station and had lodged the complaint. It appears that during the course of investigation, the deceased Narayan was referred to Hospital at Mumbai for better treatment as there was no recovery in the local hospital. He died on the third day of the incident. The police, therefore, added Section 302 of IPC during the course of investigation. It further appears that a cross case sat 6 cri.appeal 254-91 & 255-91 on the basis of complaint made by the appellant no.1 was registered against the members belonging to the other party. It further appears that two charge sheets were filed against both the groups. 8 When this case came up for hearing before the learned trial court, a charge u/ss. 338, 342, 302, 506 and 325 r/w. 34 of IPC was framed against all the appellants. All of them had pleaded not guilty and had claimed to be tried. Defence of the appellants before the learned trial court was that none of the appellants had inflicted stick blows on the deceased. It was the case of the appellants that the entry to the house of appellant no. 2 is very short in height and the upper side wooden plank had hit the complainant as he did not bend while entering the house of the accused no.1. 9 During the course of trial, the prosecution had examined thirteen witnesses to prove its case. As far as conviction of the appellant no.1 for the offence punishable u/s. sat 7 cri.appeal 254-91 & 255-91 342 of IPC is concerned, the same has not been seriously challenged. Therefore, our judgment is confined to the merits of the conviction for the offence punishable u/s. 302 of IPC. As far as cause of death is concerned, the Medical Officer in his report has stated that the deceased had died due to complications following head injury. 10 As such, the head injury was not the direct cause of death. Apart from this, what is necessary to be examined is whether stick blow was inflicted on the deceased by the appellant no.1. We have carefully examined the evidence on record. The defence of the appellants that head of the deceased had hit the wooden plank has been rightly rejected by the learned trial court. 11 The conviction of the appellant no.1 is mainly based on the evidence of PW 5 Dahu, who was the complainant, and PW 10, the son of the deceased. PW 5 had stuck to his statement made before the police and had narrated the incident sat 8 cri.appeal 254-91 & 255-91 in detail. He has clearly stated in his evidence that he was hit by a stone and he was lifted and was taken to the house of appellant no.2. The appellant no.3 Ganpat. and appellant no.2 Ramesh tied him with a rope to one pillar inside the house. Thereafter, the appellant no.1 and appellant no.2 started assaulting the complainant by means of stick. The complainant, therefore, shouted. In the meantime, the deceased Narayan came there and questioned the appellants as to why they had tied the complainant. The PW 5 has clearly stated that it is the appellant no.1 who gave a stick blow on head of the deceased. The deceased had fallen down immediately after the blow. There is nothing in the cross-examination of the witness which can discredit him. 12 As far as PW 10 is concerned, he has supported the evidence of PW 5. He had also visited the house of appellant no.2 along with the deceased after learning that some incident had occurred at the house of appellant no.2. He had seen that PW 5 was tied by means of rope. He deposed that the deceased sat 9 cri.appeal 254-91 & 255-91 had questioned the propriety of this act on the part of appellants. It is at this stage that the appellant no.1 had inflicted the blow by means of thrashing rod on head of the deceased. The deceased had fallen down due to the said blow. The deceased was brought to his home by PW 10 and his relative and thereafter he was taken to police station. He was referred to hospital by the police. 13 After having gone through the evidence of these two witnesses and other witnesses and the judgment of the learned trial court, we are convinced that the learned trial court has rightly accepted the evidence of witnesses that the stick blow was inflicted by the appellant no.1 on the deceased. The learned trial court has rightly come to the conclusion that the deceased was tied by the appellant nos.2 and 3 in furtherance of common intention of all the appellants. The trial court has rightly come to the conclusion that the appellant nos.2, 3 and 4 did not share intention of the appellant no.1 when the appellant no.1 had inflicted a stick blow on the deceased. sat 10 cri.appeal 254-91 & 255-91 14 The question which, during the course of arguments, arose before us for determination was whether the act of the appellant no.1 did fall under any of the categories mentioned in Section 300 of IPC. It is admitted position that there was case and cross case arising out of the same incident. It, therefore, follows that there was assault and counter assault. The charge sheet against the witnesses in this case had been filed before the same court and witnesses were tried by the same Judge. This fact is very clear from the judgment. Another Sessions case arising out of the same incident against the witnesses was also heard by the same Judge. Taking overall view of the evidence, it is abundantly clear that there was no intention on the part of the appellant no.1 to commit murder of the deceased. It is the deceased who had gone to the house of the appellant no.2 after the alleged commotion. The stick used by the appellant no.1 is not described properly by any witness. All the witnesses have given different description of the stick. We have, therefore, come to the conclusion that there was no sat 11 cri.appeal 254-91 & 255-91 intention on the part of the appellant no.1 to cause bodily injury. It is not proved that bodily injury was sufficient to cause death in ordinary course of the nature. We have taken note of the fact that the deceased had died after three days due to complications following head injury. As such, it can safely be said that neither there was intention on the part of the appellant no.1 to cause death of the deceased nor there was intention on his part of cause bodily injury which was sufficient to cause death in ordinary course of the nature. Therefore, the case of the appellant no.1, in our considered opinion, would amount to culpable homicide not amounting to murder punishable u/s. 304 II of IPC. 15 The appellant no.1 had caused death of the deceased by doing an act with the knowledge that he was likely to cause death of the deceased by the act committed by him. The conviction of the appellant no.1 u/s. 342 of IPC is not seriously challenged. Therefore, the said conviction is maintained. The conviction of the appellant no.1 for the offence sat 12 cri.appeal 254-91 & 255-91 punishable u/s. 302 of IPC needs to be set aside. The appellant no.1 is found guilty of the offence punishable u/s. 304 II of IPC instead of Section 302 of IPC. 16 As far as appellant nos.2 to 4 are concerned, they have challenged their conviction for the offence punishable u/s. 342 r/w. 34 of IPC. We have already stated in earlier part of our judgment that PW 5 was tied by the appellant nos.2 and 3. Appellant no.1 was also present. From narration of incident by PW 5, it is very clear that appellant no.1 also had shared the intention of appellant nos. 2 and 3. 17 As far as appellant no.4 is concerned, PW 2 Rama has clearly stated that the appellant no.4 was equally responsible for taking the complainant inside the house. He had taken part in the assault. Moreover, as already stated, the conviction of these appellants for the offence punishable u/s. 342 r/w. 34 of IPC is not seriously challenged. sat 13 cri.appeal 254-91 & 255-91 18 However, considering the fact that the incident was of the year 1984, trial was held in the year 1991 and the appeal is heard in the year 2011, we are of the view that the sentence of rigorous imprisonment for a period of two months and a fine of Rs.100/- imposed on the appellants in Appeal No.255/1991 needs to be reduced to the sentence already undergone by them. 19 Hence, we pass the following order :- I. Both the Criminal Appeals are partly allowed. II. The appellant in Criminal Appeal No.254 of 1991 is acquitted for the offence punishable under Section 302 of I.P.C.. However, he is convicted for the offence punishable under Section 304 Part-II and he is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/-. His appeal against the order of conviction for the offence punishable under Section 342 of I.P.C. is dismissed and the order of the Trial Court is confirmed. Set-off be given to the appellant for the imprisonment already undergone by him during the sat 14 cri.appeal 254-91 & 255-91 course of investigation and trial. Both the sentences shall run concurrently. III.The appellant is on bail. He shall surrender before the trial court within a period of two months from today. The trial court shall take necessary steps after the expiry of the said period if the appellant fails to comply the order. IV.So far as Criminal Appeal No.255/1991 is concerned, the judgment and order of conviction under Section 342 of I.P.C. is confirmed. However, the sentence is altered to the one which they have already undergone. V. Appellants in Appeal No.255/91 be released forthwith unless they are required in other case, if they are in jail. Their bail bonds shall stand cancelled, if they are on bail. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)