sat 1 cri.appeal 447-2004, 448-2004 & 507-2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 447 OF 2004 Sandeep Lakshya Gadag ) Age about 24 years, ) Adivasi, Agriculturist, ) R/o. Dapchari, Gorkhandpada, ) Taluka – Dahanu, Dist.Thane ) (At present Thane Central Prison )...Appellant (Orig.Accused No.5) vs. The State of Maharashtra ) (through Talasari Police Station ) vide CR No.I-30 of 2001) )...Respondent Mr.Mihir Desai i/b. Mr.Vijay Hiremath for the Appellant. Mr.J.P. Kharge, APP for the State. WITH CRIMINAL APPEAL NO. 448 OF 2004 1. Dharma Vikya Gharat ) Age 47 years, ) 2. Jethya Vanashya ) Age – 47 years ) All Adivasi, Agriculturist, ) Both R/o. Dapchari, Gorkhandpada, ) Taluka – Dahanu, Dist.Thane ) (At present Thane Central Prison )...Appellants (Orig.Accused Nos 1 & 2) sat 2 cri.appeal 447-2004, 448-2004 & 507-2004 vs. The State of Maharashtra ) (through Talasari Police Station ) vide CR No.I-30 of 2001) )...Respondent Mr.Mihir Desai i/b. Mr.Vijay Hiremath for the Appellants. Mr.J.P. Kharge, APP for the State. WITH CRIMINAL APPEAL NO. 507 OF 2004 1. Barakya Mithya Gharat ) Age – 52 years, Occu-Service ) Residing at & post – Dapchari, ) Gorkhandpada, ) Taluka – Dahanu, Dist.Thane ) (At present Thane Central Prison ) 2. Devaji Ladakya Gharat, ) Age- 57 years, Occu-Service, ) Residing at & post – Dapchari, ) Gorkhanpada, Tal- Dahanu, ) Dist-Thane ). (Both now in Nashik Road ) Central Prison) )...Appellants (Orig.Accused Nos3 & 4) vs. The State of Maharashtra ) (through Talasari Police Station )...Respondent Mrs.A.R. Baxi i/b. Mr.P.D.Pise for the Appellants. Mr.J.P. Kharge, APP for the State. sat 3 cri.appeal 447-2004, 448-2004 & 507-2004 CORAM : V.M. KANADE AND M.L. TAHALIYANI, JJ. DATED : NOVEMBER 29, 2011 ORAL JUDGMENT (Per M.L. TAHALIYANI, J.) :- 1 These three appeals are being decided by a common judgment as they arise out of one of the same judgment passed by the First Ad-hoc Additional Sessions Judge, Palghar, in Sessions case No.289/2001 of Thane Sessions Division. The appellant Dharma Vikya Gharat and Jethya Vanashya Shelar in Criminal Appeal No.448/2004 were original accused nos.1 and 2, the appellants Barakya Mithya Gharat and Devaji Ladakya Gharat in Criminal Appeal No.507/2004 were the original accused nos.3 and 4 and appellant Sandeep Lakshya Gadag in Criminal Appeal No.447/2004 was the original accused no.5 in the abovestated Sessions case. 2 All the appellants were tried for the offences punishable u/ss.147, 148, 302 r/w, 149 r/w. 323 r/w. 149 and sat 4 cri.appeal 447-2004, 448-2004 & 507-2004 506 r/w. 149 of IPC. At the end of trial, all the appellants were convicted for the offences punishable u/s. 147, 148 and 149 r/w. 302 of IPC. They were sentenced to suffer SI for one year each for the offences punishable u/ss. 147 and 148 of IPC and were sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/- each for the offence punishable u/s. 302 r/w. 149 of IPC. The appellant Jethya, original accused no.2 was also convicted for the offence punishable u/s. 323 of IPC and was sentenced to suffer SI for six months. The appellants were acquitted of all other charges. The sentences were directed to run concurrently. It was further directed that set-off according to law be given. 3 The case of the prosecution in brief before the trial court was that deceased Ramaji Gorkhana had ancestral property at Dapchari. Ramaji and his wife with children were staying in the property alongwith their children. Since the said property was acquired for Dapchari Milk Dairy by the Government, the complainant Gulabbai and the deceased sat 5 cri.appeal 447-2004, 448-2004 & 507-2004 Ramaji along with their children left the said field and came to stay at Haladpada. It appears that the deceased was allegedly involved in the offence of theft and therefore, the villagers did not want them to stay at their village. It is the case of prosecution that therefore, the appellants had gone to the extent of assaulting the deceased and committed his murder. The alleged incident had occurred on 22nd March, 2001 at village Haladpada. The deceased was allegedly assaulted by the appellants by means of sticks and stones in front of the house of one Laxmi Kuwara. The eye witnesses to the incident are PW 2, 3 and 5. It appears that said Laxmi Kuwara had not been examined. The first and second eye witnesses are wife and son of deceased, respectively and 3rd witness is one Naresh Gorkhana. 4 As far as cause of death is concerned, the Medical Officer (PW 1) has stated in his evidence "the deceased had died due to cardiorespiratory failure due to shock & haemorrhage i.e. Haemorrhage shock following head injury sat 6 cri.appeal 447-2004, 448-2004 & 507-2004 with injury to the brain & fracture of left heomerus, left radius and ulna, right tibia and fibula and left tibia and fibula.". 5 The post mortem examination report and evidence of Medical Officer clearly indicated that the deceased was assaulted continuously for few minutes by means of sticks and stones. The evidence of PW 1, 2 and 3 clearly established that the appellants in Appeal Nos.448/2004 and 507/2004 were actively involved in the assault. There is no evidence against the appellant in Appeal No.447/2004 who is original accused no.5. 6 PW 3, who is son of the deceased, had accompanied the deceased at the time of incident. He had seen the incident very closely. He has stated that his father was assaulted by all the appellants at about 7 p.m. on the ground that that he was a robber. According to this witness, original accused no.1 Dharma, accused no.2 Jethya and accused no.3 Barakya were holding sticks and remaining accused were holding stones in their hands. Despite repeated request on the part of PW 3, the sat 7 cri.appeal 447-2004, 448-2004 & 507-2004 appellants did not stop assaulting the deceased. One of the stones had hit the PW no.3. Therefore, he started running away from the spot. He immediately rushed to his mother and informed her that the deceased was being assaulted. 7 The PW 2, who is wife of the deceased, has stated that when she reached near the house of Laxmi Kuwara, she had seen that appellant nos.1 to 4 (appellants in Criminal Appeal No.448 and 507 of 2004) were assaulting the deceased. She tried to intervene but could not succeed. After the assault, the accused nos.1 to 4 ran away from the spot. PW 2 had rushed to the police station of Talasari village and lodged report. She had identified the original accused nos.1 to 4 during the course of recording of her evidence. The third witness is PW 4 Ladakya Gorkhana but he has not supported the prosecution case. He has been declared hostile by the prosecution. However, no material could be brought in his cross-examination which needs discussion in this judgment. The fourth witness is PW 5 Rupaji Kondya Gorkhana. He has stated that he had seen the sat 8 cri.appeal 447-2004, 448-2004 & 507-2004 original accused nos.1 to 4 assaulting the deceased and he had seen them holding stones and sticks in their hands. As such, the whole prosecution case was mainly based on the evidence of eye witnesses i.e. PW 2, 3 and 5. PW 4 is resiled from his earlier statement and has not supported the prosecution case. The evidence of PW 2, 3 and 5 establishes beyond all reasonable doubt that there was an assault on the part of original accused nos.1 to 4, who are the appellants in Appeal No.448 and 507 of 2004. The weapons used by the appellants were stones and sticks. The evidence of Medical Officer (PW1) shows that there were multiple injuries on the body of the deceased. During the course of arguments before us, the learned Advocate for the appellants did not seriously disputed the incident. On evidence also, we are satisfied that the incident in question, has been established beyond all reasonable doubts. The question which needed consideration was a mental element of the appellants. It was necessary to examine whether the appellants intended to cause death of the deceased or intended to cause bodily injuries which were sufficient to cause death in sat 9 cri.appeal 447-2004, 448-2004 & 507-2004 ordinary course of the nature. Superficially examined, it would indicate that there was intention to cause death. However, careful examination of evidence and the weapons used and the background of the case show that there was no intention to cause death or bodily injury sufficient to cause death in ordinary course of the nature. No doubt, there was assault which was continuous assault by the four persons by means of stones and sticks. It, therefore, can safely be stated that the appellants knew that they were likely to cause death by the act of assaulting the deceased by means of stones and sticks. We are unable to pursue ourselves to accept the contention of the learned Additional PP that the appellants intended to cause death of the deceased. 8 In view of what has been stated by us hereinabove, Appeal No.447/2004 will have to be allowed. The other two appeals will also have to be allowed partly to the extent and the conviction of the appellants would have to be modified from offence punishable u/ss. 302 to 304 II of IPC. As far as the sat 10 cri.appeal 447-2004, 448-2004 & 507-2004 conviction for the offence offence punishable u/s. 323 of IPC recorded as against the original accused no.1-the appellant in Appeal No.448/2004 is concerned, the same has to be maintained as there is evidence to that effect in the testimony of PW 3. 9 In the result, we pass the following Order :- (i) Criminal Appeal No.447 of 2004 is allowed. Appellant/original accused No.5 is acquitted of the offence punishable under sections 147, 148, 302 read with section 149 of the Indian Penal Code. Appellant/original accused No.5 in Criminal Appeal No.447 of 2004 be released forthwith, unless he is otherwise required in any other case. (ii)So far as the Appellants/original accused Nos.1 and 2 in Criminal Appeal No.448 of sat 11 cri.appeal 447-2004, 448-2004 & 507-2004 2004 and the Appellants/original accused Nos.3 and 4 in Criminal Appeal No.507 of 2004 are concerned, their appeals are partly allowed. The conviction of the appellants/original accused Nos.1 to 4 for the offence punishable under section 302 read with section 149 is set aside. However, the Appellants/original accused Nos.1 to 4 are convicted for the offence punishable under section 304 Part-II read with section 34 of the Indian Penal Code and they are sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.2,000/- each. The appellants/original accused Nos.1 to 4 are acquitted of the offences punishable under sections 147, 148 of the Indian Penal Code. The conviction of the appellant/original accused Nos. 2 in Criminal Appeal No.448 sat 12 cri.appeal 447-2004, 448-2004 & 507-2004 of 2004 under section 323 of the Indian Penal Code is confirmed. The sentences, however, shall run concurrently. So far as accused appellant/accused No.2 in Criminal Appeal No.448/2004 is concerned, he is entitled to get benefit of set off under section 428 of the Cr.P.C. If the appellants/original accused Nos.1 to 4 have already undergone sentence of 10 years, they shall be released forthwith on payment of fine amount as imposed by this Court, unless they are otherwise required in any other case. 10 All these criminal appeals are accordingly disposed of. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)