1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.302 OF 1997. 1. Shivaji S/o Baburao Burkunde, Aged 27 years, Occ.Agril., R/o Salegaon, Tq. Keij, Dist. Beed. 2. Gurling S/o Baburao Burkunde, Aged 29 years, Occ. & R/o as above. 3. Sau. Sindhubai W/o Gurling Burkunde, Aged 26 years,Occ. & R/o as above. 4. Sau.Gangabai W/o Shivaji Burkunde, Aged 24 years, Occ. & R/o as above. ... Appellants. Versus The State of Maharashtra ... Respondednt. ... Mr.N.E.Deshmukh, advocate holding for Mr.S.B.Talekar, advocate for the appellants. Mr.K.S. Patil, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 10.09.2009. 2 ORAL JUDGMENT 1. This appeal is directed against judgment and order rendered by learned Additional Sessions Judge, Ambejogai, in Sessions Case No. 25/1993, whereby the appellants are convicted for offences U/s 304-II and U/s 324 of the I.P.Code. For offence U/s 304-II of the I.P.Code, the appellant Nos.1 and 2 have been sentenced to suffer rigorous imprisonment for five (5) years and to pay fine of Rs.500/- (Rupees five hundred) each, in default to suffer rigorous imprisonment for three (3) months. They have been sentenced to suffer rigorous imprisonment for three (3) months each and to pay fine of Rs.100/- (Rupees hundred) each for the offence punishable U/s 324 of the I.P.Code. The appellant Nos.3 and 4 have been sentenced to suffered rigorous imprisonment for three (3) months and to pay fine of Rs.100/- (Rupees hundred) each, in default to suffer rigorous imprisonment for one (1) week. 2. Complainant P.W.1 Manohar owns a parcel of land bearing S.No.265 in the proximity of the 3 agricultural land of the appellants. The incident giving rise to the prosecution case occurred on 12.3.1989. The prosecution case, in nutshell, is that cattles of the appellants intruded in the agricultural land of complainant P.W. Manohar in the noon. The standing jawar crop was being damaged by the herd of 8/10 cattles and, therefore, he along with P.W. Goroba, his mother P.W.Saraswatibai and the maternal aunt - deceased Indubai, who were present in the agricultural land, started driving the cattles towards the village with a view to detain them in the cattle-pound. The appellants came running from behind and told the complainant that they will not allow driving of the cattles to the cattle-pound. There was some exchange of hot words between them. The appellants started pelting stones at the complainant and others. In the course of such incident of pelting of stones by the appellants and acquitted accused No.5 Baburao, the complainant and his mother and the maternal aunt as well as P.W. Goroba were injured. The stones pelted by the appellants Nos.1 and 2 struck on head of his maternal aunt 4 (Indubai). She sustained bleeding head injury and fell down. She became unconscious. She was immediately rushed to the Hospital. She succumbed to the head injuries on 17.3.1999 whilst she was under the medical treatment. On basis of the FIR lodged by complainant P.W. Manohar, the investigation was commenced. The appellants were put up on trial along with the acquitted accused No.5 Baburao for alleged commission of offences U/ss 147, 324, 447, 302 read with Section 149 of the I.P.Code. 3. The appellants pleaded not guilty to the charge (Exh.14). They submitted that due to enmity, they have been framed in false case. According to them, Indubai was injured when she was dashed by an animal from the herd of cattles and she fell down on the stone. They denied that they had pelted stones at the complainant and other injured persons including deceased Indubai. 4. At the trial, the prosecution examined in all seven (7) witnesses including two Medical Officers, namely, P.W.5 Arun and P.W.7 Dr.Anil. 5 The learned Sessions Judge came to the conclusion that the appellant Nos. 1 and 2 pelted stones on person of deceased Indubai. The learned Sessions Judge came to the conclusion that the appellant Nos.1 and 2 could have reason to believe that death of Indubai was likely to be caused due to their act but they had no intention to eliminate her. Hence, they were acquitted for the offence punishable U/s 302 of the I.P.Code though have been convicted for the offence U/s 304-II of the I.P.Code. The learned Sessions Judge held the appellant Nos.3 and 4 guilty for part of the charge and in absence of common intention they were acquitted of the offence U/s 302 as well as U/s 304-II of the I.P.Code. The appellants were accordingly convicted and sentenced as described hereinabove. 5. Heard learned counsel and learned A.P.P. 6. Mr.Deshmukh, learned advocate holding for Mr.Talekar, advocate for the appellants would submit that there could not be any serious 6 intention to cause injuries to deceased Indubai and the complainant or his mother. He would submit that the defence is more probable. He contended that the versions of the complainant - P.W. Manohar and P.W. Saraswatibai are not credit worthy. He pointed out that P.W.Goroba did not support case of the prosecution though he is related to the above two witnesses. The learned counsel took me through the statements of the witnesses and the other documents placed on record. He contended that the impugned judgment of conviction and sentence is unsustainable and liable to be interfered with. On the other hand, learned A.P.P. Mr. Patil, supports the impugned judgment. 7. There is no dispute about the fact that deceased Indubai died as a result of the head injuries. For, the suggestion of the defence is that she accidentally fell down and,therefore, her head struck on a stone which caused the fatal injury. The post-mortem notes (Exh.54) are duly corroborated by P.W. Dr.Anil. His version purports to show that the death of Indubai was 7 due to internal injuries and fracture of the skull's vault. The findings stated against column No.19 of the postmortem notes would make it amply clear that the head injury resulted into fracture and, therefore, the woman died. In the opinion of the Autopsy Surgeon, the death occurred as a result of of the antemortem injuries found on person of Indubai. The cause of her death was stated by the Medical Officer as shown below : "Subdural and intracerebral haemorrhage with laceration of brain due to fissured fracture of skull- vault bones." 8. The testimony of P.W. Dr.Anil would show that deceased Induabai was found to have sustained multiple injuries as indicated in column No.17 of the postmortem notes. His version purports to show that though the injuries on the front portion of the head and abrasions near outer margin of right eye of Indubai could have occurred due to blows of stones and the other two 8 minor injuries shown as injury Nos.4 and 6 were possible during course of a scuffle, yet, all the injuries considered together were not possible due to fall of a person after dash given by some animal. In other words, the multiple injuries could not have been noticed on person of Indubai if she had been dashed by a bullock or any animal and had fallen down on a stone which could hardly hit her head. 9. Coming to the versions of P.W.Manohar and P.W.Saraswatibai, it is explicit that both of them were working in their agricultural land at the relevant time. Their versions go to show that some cattles of the appellants had trespassed in their agricultural land and, therefore, they along with deceased Indubai and P.W. Goroba started driving the cattles towards the village cattle-pound. According to them, the appellants threatened that they would not allow taking of the cattles towards the cattle-pound. Their versions purport to show that there was some exchange of hot words and thereafter the appellants started pelting of stones in their 9 direction. They narrated as to how the stones pelted by the appellant Nos.1 and 2 had struck on head of Indubai. Their versions further show that both of them were also injured in the course of the spree of stones' hurling by the appellants. Though there was previous bad blood between them and the appellants, yet, it is difficult to dislodge their versions on account of the prior animosity. 10. The FIR (Exh.26) was lodged without loss of much time. The FIR was registered in the very same evening after about a couple of hours of the incident. The promptitude would indicate absence of manipulation. The FIR would show that the incident of pelting stones by the appellants did occur in the relevant noon at about 4/4-30 p.m. The learned counsel would point out from the recitals of the FIR that Rajabhau, Bhagwat and one Pandit were the persons who had intervened in the dispute. It is pointed out that none of such independent witnesses has been examined. The non-examination of such witnesses, according to the learned counsel would weaken the 10 case of prosecution. I do not agree. Unless there is substantial reason to dislodge the versions of P.W.Manohar (complainant) and his mother (P.W. Saraswatibai), the mere non- examination of the witnesses mentioned in the FIR (Exh.26) can not be a sufficient reason to dislodge the case of prosecution. 11. One can not be oblivious of the fact that P.W.Manohar and P.W.Saraswatibai were both injured during course of the assault. This fact is duly proved by P.W.5 Dr.Arun. From version of P.W. Dr.Arun, it may be gathered that he examined injured P.W. Goroba, P.W.Manohar and P.W.Saraswatibai in the evening of 12.3.1989, after about 3/4 hours of the incident. He noticed that P.W.Manohar was having one abrasion injury over left forearm - 2"x1" in size. The injury was caused by some blunt object. He also noticed a contusion injury on right thigh, on the medial upper part - 3"x2" by size and was caused by hard and blunt object. Both the injuries were caused within six (6) hours of the medical examination. He corroborated the Medico Legal 11 Certificate (Exh.34). Similarly, P.W. Saraswatibai was having a contusion injury on left supra mammary region 2"x1" which was caused by some hard and blunt object within six (6) hours of the medical examination. He also noticed that there was sprain over left region of P.W.Saraswatibai. He corroborated his findings stated in the Medico Legal Certificate (Exh.35). He admitted that the injuries were of simple nature. His version goes to show that there were two injuries on person of injured Indubai. They were thus : "1. C.L.W. over left occipital region 3"x2" in size accompanied by bleeding. 2. Contusion over right temporal region 3"x2" in size redness present" His version would show that injured Indubai was unconscious. She was vomitting and her talk was irrelevant after she regained consciousness. He suspected that she might have received internal injuries and hence, referred her to the S.R.T.R. Medical College Hospital at Ambejogai for further 12 examination and treatment. As stated before, she succumbed to the head injuries after about five (5) days while was under medical treatment. 12. Though P.W.Goroba did not support case of the prosecution and was declared hostile, yet, it would not impair the case of prosecution. His version indicates that he asked the appellants as to why their cattles had entered in the field. He further states that he had sustained injury on the left hand. However, he deposed that he does not know how the injury was caused. His left hand was fractured. He admitted that 5/6 cattles of the appellants had entered in the agricultural land. His version is of no much help to the either side. The testimony of P.W.2 Dattu lends assurance to the recitals of the spot panchanama (Exh.28). The Police recovered five (5) stones, a neckless of black beads and pieces of bangles from the spot of the incident. The recitals of the spot panchanama would show that some stones were found lying at the place of the incident. 13. The sum total of the foregoing 13 discussion is that there is reliable evidence to infer complicity of the appellants in the alleged incident. The versions of P.W.Manohar and P.W.Saraswatibai are reliable and can be accepted inasmuch as both the witnesses were injured during course of the incident. It does not stand to reason that simultaneously 4/5 persons including deceased Indubai were charged with by the cattles and had sustained injuries due to dash of the cattles or due to fall on the ground. In any case, the medical evidence does not show that the multiple injuries could have occurred on person of deceased Indubai due to a single dash of some animal or due to a single fall on hard surface. The learned counsel Mr.Deshmukh, seeks to rely on certain observations in "Kapil Deo Sinha Vs. Kirandeo Prasad and another" AIR 2009 Supreme Court 93. The Apex Court observed that non-examination of the witnesses and the contradictory versions of the son of the deceased and the witnesses as well as non-examination of the I.O. were the factors to support the judgment of acquittal which was rendered by the High Court. The learned advocate also referred to 14 various other cases viz; "Babu Ram and others Vs. State of Punjab" 2008 AIR SCW 1276, "Lallu Manjhi and another Vs. State of Jharkhand" AIR 2003 Supreme Court 854, "State of Maharashtra Vs. Uttam Karbhari Dhage and another" 1997 Cri.L.J. 2513, "Shaikh Nabab Shaikh Babu Musalman and others Vs. State of Maharashtra" 1993 Supp (2) Supreme Court Cases 217, "Gorle S.Naidu Vs. State of A.P. and others" AIR 2004 Supreme Court 1169, "Narendra Singh and another Vs. State of M.P." AIR 2004 Supreme Court 3249 and "Deepak Kumar Vs.Ravi Virmani and another" (2002) 2 Supreme Court Cases 737. All these authorities pertain to the question of appreciation of evidence which falls within the ambit of Section 3 of the Evidence Act. It is well settled that each case must be approached on the basis of facts obtained in that case. The law is hardly of any assistance in the matter of appreciation of evidence. The Apex Court deprecated practice of using such citations on the question of appreciation of evidence, in "Hazari Lal Vs. The State (Delhi Admn.)" 1980 Cri.L.J. 564 = AIR 1980 Supreme Court 873, the Apex Court observed : 15 "It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. We are forced to say this because of late we have come across several judgments of Courts of Session and sometimes even of High Courts where reference is made to decisions of this Court on matters of appreciation of evidence and decisions of pure question of fact." 14. What is established from the facts obtained in the instant case is that there was a brawl over issue of taking cattles of the appellants to the cattle-pound by complainant Manohar and others. The cattles were not being released by P.W.Manohar and his relatives and, therefore, after some exchange of heated words, the appellants pelted stones in the direction of complainant P.W.Manohar and others. It is nobody's case that the stones were hit by taking 16 them in the hands and from a short distance. It is also nobody's case that the stones were dropped while the injured Indubai had fallen on the ground. There was indiscriminate pelting of stones and hence two stones badly hit head of Indubai. The prosecution did not adduce any evidence to show that the stones were of such large size as could have given rise to the inference that the appellant Nos.1 and 2 might have reason to believe that their acts could have caused death of Indubai. Though, Indubai died due to the head injury, yet, there is no tangible material to infer that the appellants had any intention to cause her death or had knowledge that her death could be result of their acts. They pelted stones in the fit of anger. In this view of the matter, their conviction for offence U/s 304-II of the I.P.Code is unsustainable. Their acts would fall within the ambit of Sections 325 read with 34 of the I.P.Code. Ordinarily, the acts would have come within the ambit of Sections 326 read with 34 of the I.P.Code but for the reason that it is not established by the prosecution that the stones 17 could be treated as dangerous instruments or weapons. It is to be noted that the recitals of the spot panchanama would show that there was no blood stains found on any of the stone. The identity of the stone used during the course of the assault is, therefore, rendered in obscurity. In this view of the matter, the nature of conviction will have to be altered. 15. The same is the case in respect of the conviction rendered against the appellant Nos.3 and 4. They pelted the stones in the direction of P.W.Saraswatibai and complainant P.W. Manohar. The injuries found on person of both the victims were of simple nature. The acquittal of the appellant Nos.3 and 4 in respect of offence U/s 304-II of the I.P.Code is not challenged by the State. There is nothing on record to show that the stones were of considerably big size and could be regarded as dangerous weapons. Hence, the appellant Nos.3 and 4 could not be convicted for the offence punishable U/s 324 of the I.P.Code. The identity of the seized stones, as stated earlier, as weapons of the assault is not 18 established. Hence, the appellant Nos.3 and 4 are liable for conviction only to the extent of offence U/ss 323 read with 34 of the I.P.Code. 16. In the result, the appeal is partly allowed. The impugned judgment of conviction and sentence to the extent of conviction of the appellant Nos.1 and 2 for offence U/s 304-II of the I.P.Code is set aside. They are acquitted of the offence punishable U/s 304-II of the I.P.Code. They are instead convicted for offence U/ss 325 read with 34 of the I.P.Code and are sentenced to suffer rigorous imprisonment for two (2) years and to pay fine of Rs.500/- (Rupees five hundred) each, in default to suffer rigorous imprisonment for three (3) months. The order of conviction and sentence for offence U/s 324 of the I.P.Code, rendered against them is also set aside. 17. The appellant Nos.3 and 4 are acquitted for the offence punishable U/ss 324 read with 34 of the I.P.Code and instead are convicted for offence U/ss 323 read with 34 of the I.P.Code. 19 They are sentenced to suffer S.I. till rising of the Court and to pay fine of Rs.500/- (Rupees five hundred) each, in default to suffer simple imprisonment for 30 (thirty) days. 18. The appellants will be entitled to the set off and the order regarding disposal of the Muddemal property is maintained. The appellant Nos.1 and 2 to surrender to the bail before the trial Court to undergo the remaining part of the sentence and if the fine amount is already deposited by the appellant Nos.3 and 4 then the compliance be taken note of. The learned Sessions Judge to report compliance of the surrender and execution of the order of sentence as above within a period of six (6) weeks. (V.R.KINGAONKAR,J.) asp/office/Crappeal30297