appeal 661­04.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 661 OF 2004 1. Babu Gopa Pawar, ] Age : 55 Years, ] 2. Shivaji Babu Pawar, ] Age : 21 Years, ] 3. Motabai Babu Pawar, ] Age : 45 Years, ] 4. Sumanbai Limba Pawar, ] Age : 35 Years, ] 5. Limba Gopa Pawar, ] Age : 45 Years, ] 6. Dhanu Gopa Pawar, ] Age : 60 Years, ] 7. Nagnath Babu Pawar, ] Age : 19 Years, ] [ All R/o. Kasari, Taluka Barshi, ] Dist. Solapur.] ] [ At present lodged in Yerwada Central ] Prison, Pune. ] ] Appellants (Org. Accused Nos. 1 to 7) Versus 1. The State of Maharashtra, ] 2. Lalita Mahadeo Chavan, ] R/o. Laman Tanda, Kasari, Tal. Barshi, ] Dist. Solapur. ] Respondents 1 appeal 661­04.doc Mr. Daulat Khamkar for Appellant Nos. 4 and 5 Mr. S.D. Dharmadhikari for Appellant Nos. 1,2,3, 6 and 7 Mr. K.V. Saste, APP for the State CORAM : P.V. HARDAS & M.N. GILANI, JJ. DATE : 21st APRIL, 2011 ORAL JUDGMENT (Per P.V. HARDAS, J): 1. Accused Nos. 1, 2, 5, 6 and 7 who stand convicted for offence punishable under Sections 147, 148, 302, 324 read with Section 149 of the IPC and original accused nos. 3 and 4 who stand convicted for the offences punishable under Sections 147, 324, 302 read with Section 149 of the IPC and sentenced to imprisonment for life and to each pay fine of Rs. 2000/-, in default of which to under go RI for one year with no separate sentence being passed for the offence punishable under Section 324 read with 149 of the IPC, by the IIIrd Additional Sessions Judge, Solapur, by judgment dated 26th March 2004, by this Appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: i. PW 7 PSI Ankush Ingale who was attached to Vairag Police Station as an API on 16th July 2002, was entrusted with an investigation of Crime No. 00/2002. A complaint 2 appeal 661­04.doc had been filed at the Tuljapur Police Station by PW 1 Manohar Chavan. Accordingly, an offence came to be registered vide Crime No. 61 of 2002 under Sections 302, 324, 504 and 506 read with Section 149 of the IPC at Vairag Police Station. PW 7 PSI Ingale accordingly visited the scene of the offence. It appears that original accused no. 2 Shivaji had also lodged a complaint on 16th July 2002 at Vairag Police Station and accordingly an offence vide Crime No. 60 of 2002 was registered under Sections 147, 323, 324, 325, 504 and 506 read with Section 149 of the IPC. The complaint of original accused no. 2 Shivaji is at Exh 52. PW 7 PSI Ingale upon vising the scene of the offence drew the scene of the offence panchanama at Exh 17. From the scene of the offence, broken pieces of bangles, mud stained with blood, mud and one agricultural implement known as Rumane came to be seized. The clothes of the complainant and other witnesses were found stained with blood and accordingly,their clothes came to be seized in presence of panchas vide memo at Exh. 18. Statement of witnesses came to be recorded and the accused came to be arrested on 17th July 2002. Clothes on the person of the accused namely the clothes of the accused Limba, Shivaji, Babu and Dilip were found stained with blood which came to be seized in presence of panchas at Exh 3 appeal 661­04.doc 37. On 21st July 2002, accused Limba Pawar while being interrogated expressed his willingness to point out a place where an axe was concealed. Accordingly, his memorandum came to be recorded in presence of panchas at Exh 20. The accused Limba led the Police and the panchas to his house at Laman Tanda and produced the axe which came to be seized in presence of panchas at Exh 20A. Further investigation came to be entrusted to API Gawari on 23rd July 2002. PW 6 API Gawri who was entrusted with the investigation on 23rd July 2002 interrogated the accused and on 24th July 2002, accused Babu during interrogation expressed his willingness to point out the place where a weapon had been hidden by him. Accordingly, his memorandum came to be recorded in presence of panchas at Exh 43 expressing his willingness to produce the sticks. Accused Babu then led the Police and the panchas towards his house and produced the sticks which were kept in the corner of the house which came to be seized in presence of panchas at seizure memo Exh. 43A. On the same day, statement of the witnesses came to be recorded and on 30th July 2002, the seized articles were referred to Chemical Analyzer for analysis through constable Pardeshi. Dead body of the deceased Mahadeo had been referred for postmortem examination and the 4 appeal 661­04.doc postmortem came to be recorded by PW 5 Dr. Tambhale. PW 5 Dr. Tambhale noticed the following injuries: 1. Abrasion - right shoulder - 5 X 1 c.m. in size. 2. The contused lacerated wound on left side of scalp - 5 X 3 c.m. in size. Both the injuries were ante-mortem. 3. Fracture of left parital bone centrally 5 X 3 c.m. in size. He observed extra dural haematoma of size 5 X 4 c.m. which is below fracture of part of bone. He, therefore, opined that cause of death was cardio respiratory arrest due to head injury. The postmortem report is at Exh 21. The injured had been examined at Tuljapur Hospital. Their certificates are at Exh 22 and 23. Further to the completion of investigation, a charge sheet against the appellants came to be filed. ii. On commital of the case to the Court of Sessions, the trial Court vide Exh. 3 framed charges against the accused for the offence punishable under Sections 147, 148 and 302 read with Section 149 of the IPC, Section 324 read with Section 149 of the IPC, Section 504 read with Section 149 of the IPC, Section 506 read with Section 149 of the IPC and Section 37(1) of the Bombay Police Act. The accused denied their guilt and claimed to be tried. Prosecution in 5 appeal 661­04.doc support of its case, examined five witnesses. The trial Court upon appreciating the evidence, convicted and sentenced the accused as afore stated. 3. The entire prosecution case revolves around testimony of eye witnesses namely PW 1 Manohar and PW 4 Dayanand. PW 3 Shivaji did not support the prosecution and was declared hostile. 4. PW 1 Manohar, brother of deceased Mahadeo states that he resides at Kasari in Laman Tanda along with his father Bhimrao, mother Sonabai and his brother and nephew. He states that his deceased brother Mahadeo used to also reside in the same house. He states that his family and the family of the accused had strained relationship for the last ten years. In respect of the incident, he states that on 16th July 2002 at about 06.30 p.m. in evening, his nephew Dayanand had gone to the shop for bringing some articles. On returning home, Dayanand informed him that the accused namely Limbajji, Shivaji and Nagnath had quarreled with him. Therefore, PW 1 Manohar along with Dayanand, deceased Mahadeo, Bhimrao were standing in front of their house. The accused Limba, Shivaji and Nagnath came there. PW 1 Manohar asked them as to why they had quarreled with Dayanand. On this, accused Limbaji, Shivaji and Nagnath abused Manohar and others. In the 6 appeal 661­04.doc meantime, accused Babu, Dilip, Dhannu, Suman and Motabai also came there. Accused Suman and Motabai caught the hands of Mahadeo while accused Limba assaulted Mahadeo on his head by an axe. Accused Babu assaulted Mahadeo by a stick on his shoulder. Accused Dilip assaulted PW 1 Manohar on his head by a stick. While accused Shivaji and Nagnath assaulted Dayanand on his head by an agricultural implement known as Rumane and stick. Accused Dhannu also assaulted Bhimrao by a stick. On hearing noise of quarrel, people from the village namely Bhaskar, Ankush, Shivaji and Saudagar also came there. They intervened and settled the quarrel. The injured then placed in a tractor of one Hanumant Jagtap and were taken to Sangavi. They had gone to the Government Hospital at Tuljapur by a jeep from Sangavi. At the hospital, Medical Officer declared Mahadeo dead. Injuries of the injured were treated at the hospital and thereafter, the Police arrived at the hospital and the complaint of PW 1 Manohar came to be recorded at Exh 38. PW 1 Manohar also states that the accused had sustained injuries in the assault on their own hands. He has admitted that the accused had filed a case against them which is pending in the Court. In cross- examination, he has admitted not to have stated in his report about the accused lifting Rumane and using it for assault. He has further admitted in cross-examination that the accused had received injuries in the same incident. Omission has been duly 7 appeal 661­04.doc proved that he had not stated in his report about the accused receiving injury at their own hands. He has admitted that he along with Balu, Dayanand, Anil, Sunil, Sitabai, Lalita, Shaman and deceased Mahadeo are accused in Crime No. 60 of 2002 registered against them at the behest of accused no. 2. He has admitted that accused Babu, Limbaji and Shivaji had sustained injuries in the incident. He has also admitted that even he and the others were abusing the accused and the accused were also abusing them. 5. PW 4 Dayanand also states on similar lines. He further states that accused Babu was armed with an axe and a stick. He has also admitted there were heavy exchange of words between them and the accused. He then states that the accused Limba had taken the axe from other accused and thereafter had assaulted deceased Mahadeo. 6. PW 5 Dr. Tambhale has admitted that by a sharp cutting weapon, incised would would be caused. 7. Learned counsel for the parties have urged before us that the prosecution has utterly failed to prove that the common object of assembly was to kill deceased Mahadeo which could not have been anticipated by them that deceased Mahadeo would be present outside his house. It is further urged before us that 8 appeal 661­04.doc original accused no. 5 who had wielded an axe must have caused injury to deceased Mahadeo on the spur of moment in the heat of quarrel. Learned APP has supported the conviction and sentence. 8. Perusal of the evidence certainly indicates that accused no.5 Limba had not come to the scene of the offence with an axe. This position is clarified by PW 4 Dayanand when he admits in his examination-in-chief that the axe was carried out by some other accused. Both PW 1 Manohar and PW 4 Dayanand have admitted that the complainant party as well as the accused were abusing each other. It is thereafter that the incident of assault was sparked. In such circumstances, therefore, it cannot be held that the common object of the assembly was to commit murder of deceased Mahadeo. Since the incident occurred at the spur of moment and the vital blow was given by accused no. 5 Limba, Accused No.5 Limba alone would be responsible for the death of deceased Mahadeo. However, since the assault was occurred at the spur of the moment, in a heat of quarrel and the accused had not taken any undue advantage nor had he acted by cruel manner, according to us, accused no. 5 Limba would be liable to be convicted for an offence punishable under Section 304(II) of the IPC. The other accused would be entitled to be acquitted. However, since the other accused had inflicted simple injuries by dangerous 9 appeal 661­04.doc weapons such as sticks, the accused would be liable to be convicted for the offence punishable under Section 324 read with Section 149 of the IPC. 9. From the record, it transpires that original accused no. 5 Limba has been in jail now for seven years and nine months. The other accused have undergone imprisonment of six months as they were released on bail during pendency of this appeal. Therefore, according to us, the sentence of seven years and nine months in respect of the offence punishable under Section 304(II) would meet the ends of justice. Similarly, since the other accused have undergone six months of imprisonment, the said imprisonment would be sufficient for an offence punishable under Section 324 of the IPC. 10.Accordingly, the Appeal is partly allowed. 11.The conviction and sentence of the appellants for the offence punishable under Sections 147, 148 and 302 read with 149 of the IPC is hereby quashed and set aside. Accused Nos. 1, 2, 3, 4, 6 and 7 are acquitted of the said offence. Conviction and sentence of appellant no. 5 is altered to Section 304(II) of the IPC and is sentenced to period of imprisonment already undergone by him i.e of about seven and half years. 10 appeal 661­04.doc 12.The conviction and sentence of the appellants for the offence punishable under Sections 147, 148 and 324 read with 149 is hereby maintained and appellant nos. 1, 2, 3, 4, 6 and 7 are sentenced to period of imprisonment already undergone by them. No separate sentence is awarded to original accused no. 5 Limba Gopa Pawar for the said offence. 13.Since accused no. 5 Limba Gopa Pawar is in jail, he be released forthwith if not wanted in any other case. 14.Bail bonds of the other appellants stand cancelled. [ M.N. GILANI, J ] [ P.V. HARDAS, J ] 11 appeal 661­04.doc 12