1 Cri.Appeal No. 274 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.274 OF 2009 WITH CRIMINAL APPEAL NO.263 OF 2009 (1) CRIMINAL APPEAL NO.274 OF 2009 Pandurang s/o Baliram Sawale, Age 31 years, Occ. Labour, R/o Savade, Tq. Dharangaon, Dist. Jalgaon ..APPELLANT VERSUS The State of Maharashtra (Through Gambhir Ukha Sawle And Police Inspector, Police Station, Dharangaon) ..RESPONDENT Mr B.R. Warma, Advocate for the appellant; Mr K.G. Patil, A.P.P. for the respondent WITH (2) CRIMINAL APPEAL NO.263 OF 2009 Kailas s/o Baliram Sawale, Age 30 years, Occ. Labour, R/o Savade, Tq. Dharangaon, Dist. Jalgaon ..RESPONDENT VERSUS 2 Cri.Appeal No. 274 of 2009 The State of Maharashtra (Through Gambhir Ukha Sawle And Police Inspector, Police Station, Dharangaon) ..RESPONDENT Mr B.R. Warma, Advocate for the appellant; Mr K.G. Patil, A.P.P. for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 7th January, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) Appellant in Criminal Appeal No.274 of 2009 stands convicted for an offence punishable under section 302 read with sec. 34 of the Indian Penal Code and sentenced to imprisonment for life, under section 452 read with sec. 34 of the Indian Penal Code and sentenced to R.I. for one year and to pay fine of Rs.1,000/-; in default to undergo further R.I. for three months and under section 324 read with sec. 34 of the Indian Penal Code and sentenced to R.I. for six months and to pay fine of Rs.500/-; in default to undergo further R.I. for two 3 Cri.Appeal No. 274 of 2009 months. The appellant Kailas in Criminal Appeal No.263 of 2009 stand convicted for an offence punishable under section 452 read with sec. 34 of the Indian Penal Code and sentenced to R.I. for one year and to pay fine of Rs.1,000/-; in default to undergo R.I. for three months and under section 324 read with sec. 34 and 506 read with sec. 34 of the Indian Penal Code and sentenced to undergo further R.I. for six months and to pay fine of Rs.500/-; in default to undergo further R.I. for two months, by the Additional Sessions Judge, Jalgaon, by judgment dated 27.4.2009, in Sessions Case No.109 of 2008, by these appeals question the correctness of their conviction and sentence. 2. Facts in brief as are necessary for the decision of these appeals may briefly be stated thus :- P.W.10 P.I. Kiran Dhatrak, who was attached to the Dharangaon police station, registered an offence vide Crime No.30/2008 on the basis of the complaint of P.W.2 Gambhir at Exh.44. Investigation of the said crime was entrusted to P.W. 9 S.D.P.O. Pawar. P.W.10 P.I. Dhatrak under the directions of 4 Cri.Appeal No. 274 of 2009 P.W.9 S.D.P.O. Pawar, arrested the accused on 20.3.2008 under the arrest panchnamas at Exhs.77, 78, 79 and 80. After their arrest the accused were referred for medical examination and clothes on the person of the accused came to be seized under the seizure memos at Exhs.81, 82, 83 and 84. The seized property came to be deposited in the Malkhana vide receipt at Exh.85. The clothes of P.W.2 Gambhir came to be seized in the presence of P.W.3 Rajendra vide seizure memo at Exh.48. The said clothes are Articles 1, 2 & 3. Statements of witnesses came to be recorded. During custodial interrogation, accused Hasarat had expressed willingness, to point out the place where the axe and the sticks were hidden and accordingly memorandum at Exh.63 came to be drawn in the presence of P.W.8 Gunwant. The axe and the sticks came to be seized under the said seizure memo. The seized property was referred to the Chemical Analyser vide requisition at Exhs.65 and 66. The C.A. reports are at Exhs. 67, 68, 69, 70, 71, 72 and 73. Dead body of Ukha who had succumbed to his injuries, was referred for post mortem examination and post mortem examination on the dead body of deceased Ukha came to be conducted by P.W.5 Dr. Dhande. 5 Cri.Appeal No. 274 of 2009 P.W.5 Dr. Dhande noticed following external injuries on the dead body of deceased Ukha :- 1) Abrasion on right elbow posteriorly, 1 x 1 cm. in size; 2. Abrasion on left wrist laterally 2.5 x 0.5 cm.; 3. Multiple small abrasions on posterior left forearm; 4. Minor abrasions on right anterior superior iliac spine, 1 x 0.5 cm. with contusion. On palpation he noticed right side ribs nos. 3, 4, 6, 8 & 9 were fractured. On internal examination he noticed that the brain was congested and right lung and left lung were congested. He also noticed that the right lobe of the liver was torn. The tare was of the size 5 cm. from anterior to posterior and approximately 15 cms. long. He opined that all the injuries were ante mortem injuries and expressed an opinion that the probable cause of death was cardio respiratory failure due to hypo- volemic shock due to liver rupture due to haemoperitoneum. The post mortem report is at Exh.57. The 6 Cri.Appeal No. 274 of 2009 Medical Officer further opined that the internal and the external injuries were because of blunt trauma (assault by blunt object). He opined that injuries were possible due to fist blows and kick blows and assault by stick. 3. Further to the completion of investigation a charge- sheet against the appellants and other accused came to be filed. On committal of the case to Court of Sessions, Trial Court vide Exh.26 framed charge against appellant Pandurang who was original accused no.3 and appellant Kailas who was original accused no.4 and original accused nos.1 & 2 i.e. Hasarat and Vasudeo for offence punishable under section 302 read with sec. 34, 324 read with sec. 34, 452 read with sec. 34 and 506 read with sec. 34 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined ten witnesses which included the evidence of P.W.2 Gambhir, who was an injured eye-witness and evidence of P.W.7 Parvatabai, sister-in-law of deceased Ukha as eye-witness. Prosecution relied on the other circumstantial evidence. The Trial Court accepted the prosecution case and accordingly convicted and 7 Cri.Appeal No. 274 of 2009 sentenced the appellants. Original accused no.1 Hasarat, who was also convicted for offence punishable under section 302 read with sec. 34 and other sections of the Indian Penal Code has chosen not to file any appeal. 4. In order to appreciate and effectively deal with the contentions of Shri Warma, learned Counsel for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. P.W.2 Gambhir, son of deceased Ukha and an injured witness states that original accused no.1 Hasarat is his uncle while he knows the other accused. On the date of the incident i.e. on 19.3.2008, at bout 8.30 p.m. he had taken his children to a temple. After some time his daughter Asha came there and requested him to come home. He accordingly reached his house and noticed accused no.1 Hasarat abusing him. P.W.2 Gambhir requested accused Hasarat not to abuse him and on that accused Hasarat started assaulting him. Accused Hasarat was armed with a stick and he assaulted P.W.2 Gambhir on his hands and forehead. In the meantime accused Pandurang 8 Cri.Appeal No. 274 of 2009 arrived there and, therefore, deceased Ukha intervened to separate the quarrel. Accused Hasarat assaulted Ukha by a stick on his stomach. Accused Pandurang also assaulted deceased Ukha by fist and kick blows. Accused Vasudeo also arrived at the scene armed with an axe and he assaulted Gambhir by an axe on his right leg. Accused Kailas thereafter reached the scene armed with a stick and he assaulted Gambhir on his right hand by the stick. The accused abused and threatened the complainant. He then states that P.W.7 Parvatabai reached there and other ladies also came there. Deceased Ukha was taken inside the house and thereafter was taken to the police station and then to the Civil Hospital, Jalgaon. While treatment was being administered to him Ukha succumbed to his injuries. Gambhir was treated in the Civil Hospital and thereafter submitted his report at Exh.44. In cross-examination he has admitted that it did happen that only accused Hasarat assaulted his father on his stomach by a stick. He has also admitted as correct that that no one else assaulted his father by means of an axe. He has admitted that his father had not sustained any bleeding injury. He has admitted that the physical health of his father was good and his 9 Cri.Appeal No. 274 of 2009 father was not suffering from any disease. He has also stated that accused Pandurang has assaulted his father by fist and kick blows. He has further admitted that apart from Hasarat who had assaulted Ukha by a stick and accused Pandurang who had dealt fist and kick blows, no one else had assaulted deceased Ukha. He has further admitted that after Hasarat had assaulted deceased Ukha, accused Pandurang reached there and thereafter accused Vasudeo came there with the axe and Kailas was the last to arrive at the scene. He has also admitted that the incident of assault was in front of his house in the lane. 5. P.W.7 Parvatabai claims to have seen accused Hasarat abusing Gambhir and P.W.2 Gambhir requesting accused Hasarat not to abuse him. She states that thereafter accused assaulted Gambhir by a stick on his stomach and when deceased Ukha had gone to control accused Hasarat, accused Hasarat had assaulted Ukha. She states that accused Vasudeo had assaulted Gambhir by an axe on his leg while accused Pandurang and accused Kailas had beaten Ukha on his stomach by kick and fist blows. She states that 10 Cri.Appeal No. 274 of 2009 Ukha and Gambhir were then referred to the hospital. She learnt at about 1.30 p.m. that Ukha had succumbed to his injuries. Omission has been duly proved that she had not stated that Kailas had assaulted deceased Ukha by fist and kick blows. 6. P.W.5 Dr. Dhande who had performed the post mortem examination has admitted in cross-examination that at the time of post mortem it was difficult for him to say that the injuries were caused by fist and kick blows. P.W.6 Dr. Chaudhari, who had examined P.W.2 Gambhir has proved the certificate at Exh.59. According to the evidence of P.W.6 Dr. Chaudhari, P.W.2 Gambhir had sustained the following injuries :- 1) Contused lacerated wound on forehead right, oblique, 2 x 1/2 x 1/2 cm. 2) Punctured wound right forearm, posteriorly, 1/2 inch in diameter 3) Contusion palm, thenar region of right thumb, red in colour 11 Cri.Appeal No. 274 of 2009 4) Tenderness and swelling of left forearm, middle third region 5) CLW right lower leg above ankle joint, 1.1/2 cm x 1/2 cm x 1/2 cm. in size 6) Contusion of left lower leg, 7) Contusion of right pelvic region of the size of 4 x 3 cm. with swelling. He has opined that all the injuries were simple in nature and no fracture was detected. He has opined that injury no.2 is possible by hard and blunt object. 7. On the basis of the aforesaid evidence, it is urged by the learned Counsel for the appellant that the conviction of accused Pandurang for an offence punishable under section 302 with the aid of section 34 of the Indian Penal Code is certainly not established. According to the prosecution case, accused no.1 Hasarat was present at the house of deceased Ukha and was abusing Gambhir. Hasarat had thereafter assaulted Gambhir and then deceased Ukha. Accused Pandurang is alleged to have arrived at the scene much later. 12 Cri.Appeal No. 274 of 2009 In fact, P.W.2 Gambhir has stated that accused Pandurang arrived at the scene after assault by Hasarat on Ukha was complete. It cannot, therefore, be sustained that accused Pandurang had shared the common intention of accused Hasarat to either commit murder of deceased Ukha or to inflict such injuries which the accused knew to be capable of causing death of deceased Ukha. Pandurang is alleged to have inflicted fist and kick blows. The witnesses have not stated in respect of the number of blows dealt by accused Pandurang. In fact, the Medical Officer has clearly opined that it is difficult to state if the external and internal injuries were possible by fist and kick blows. In the face of this evidence, therefore, according to us the conviction and sentence of accused Pandurang for an offence punishable under section 302 read with sec. 34 of the Indian Penal Code is wholly unsustainable. However, it clearly emerges from the evidence that accused Pandurang had dealt fist and kick blows. There is no evidence whatsoever that the kick and fist blows have caused any grievous much less the fatal injury, i.e. rupture of the liver. In such circumstances, therefore, according to us, accused Pandurang would be entitled to be acquitted for the 13 Cri.Appeal No. 274 of 2009 offence punishable under section 302 read with sec. 34 of the Indian Penal Code and instead, would be liable to be convicted for an offence punishable under section 323 of the Indian Penal Code. Similarly, conviction of accused Pandurang for an offence punishable under section 324 of the Indian Penal Code is wholly unsustainable. Accused Pandurang is not alleged to have inflicted any injuries to P.W.2 Gambhir. As pointed out by us above, all the accused had arrived at the scene separately and there is nothing to indicate that the accused had shared the common intention, in the sense that there was any previous meeting of minds. Since accused Pandurang had not caused any injury to P.W.2 Gambhir, according to us accused Pandurang also would be entitled to be acquitted for an offence punishable under section 324 read with sec. 34 of the Indian Penal Code. 8. Accused Kailas is alleged to have caused injuries to P.W. 2 Gambhir. Gambhir had stated that he was assaulted on his hands by accused Kailas by a stick. The Medical Officer has clearly proved the said injury. In fact, P.W.2 Gambhir had been assaulted by accused no.1 Hasarat as well as by accused 14 Cri.Appeal No. 274 of 2009 Kailas. Conviction for an offence punishable under section 324 read with sec. 34 of the Indian Penal Code in respect of accused Kailas, therefore, needs no interference. Prosecution witnesses have also clearly stated that the accused had threatened them with life and, therefore, conviction for an offence punishable under section 506 of the Indian Penal Code needs no interference. The accused are alleged to have tres- passed in the house of the complainant and committed the assault and, therefore, conviction of the appellants for offence punishable under section 452 of the Indian Penal Code is also unassailable. 9. Resultantly, we find that accused no.1 Hasarat is alleged to have wielded a stick and alleged to have caused injuries which had resulted in fracture of the ribs and rupture of the liver. Deceased is alleged to have died on account of those injuries. Accused Hasarat has chosen not to challenge his conviction and no appeal in this behalf has been filed. We have examined the evidence on record to ascertain, if any benefit of accused Pandurang for offence punishable under section 302 of the Indian Penal Code can be extended to 15 Cri.Appeal No. 274 of 2009 accused Hasarat. We record that it is not so possible. 10. Resultantly, Criminal Appeal No.274 of 2009 is partly allowed and the conviction of accused Pandurang for offence punishable under section 302 read with sec. 34 of the Indian Penal Code is quashed and set aside and instead he is convicted for an offence punishable under section 323 of the Indian Penal Code. Conviction and sentence of accused Pandurang for offence punishable under section 506 read with sec.34 and 452 read with sec. 34 of the Indian Penal Code is maintained. No separate sentence is awarded for an offence punishable under section 323 of the Indian Penal Code as accused Pandurang has undergone two years two months and twelve days of imprisonment. Since he has undergone the sentence, we direct that he be released , if not wanted in any other case. Criminal Appeal No.263 of 2009 is partly allowed. Conviction and sentence of accused Kailas for offence punishable under section 452 read with sec. 34, 506 read with sec. 34 and 324 read with sec. 34 of the Indian Penal Code is 16 Cri.Appeal No. 274 of 2009 confirmed. However, accused Kailas, who has been sentenced for one year for offence punishable under section 452 of the Indian Penal Code and six months each for offence punishable under section 506 and 324 of the Indian Penal Code with a direction that all sentences to run concurrently, has undergone total imprisonment and detention for period of eight months and fifteen days. We, therefore, reduce the sentence of accused Kailas to the period of imprisonment already undergone by him. We, however, enhance the fine for offence punishable under section 324 of the Indian Penal Code to Rs.10,000/- and further direct that an amount of Rs.9,500/- from the said amount of Rs.10,000/- be paid to P.W.2 Gambhir Ukha Sawale, if the amount of fine is recovered, as compensation. In default of payment of fine of Rs.10,000/-, accused Kailas shall undergo R.I. for six months. The amount of Rs.10,000/- would be inclusive of the fine of Rs.500/- imposed by the Trial Court for offence punishable under section 324 of the Indian Penal Code. Bail bonds of appellant/accused Kailas stand cancelled. 17 Cri.Appeal No. 274 of 2009 The appeals are partly allowed accordingly. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/cria274.09