State Of Maharashtra vs Tulshiram Bhanudas Kamble & Ors

5. However, nine of the accused, being original accused no.1, 2, 6 to 14 being Tulsiram Bhanudas Kamble, Ramchandra Bhanudas Kamble, Ashok Sahebrao Waghmare, Dagadu Shankar Naikwadi, Dnyaneshwar Shankar Naikwadi, Santosh Dashrath Kothalkar, Anil Dhondiram Mane, Sunil Dhondiram Mane and Rajendra Dashrath Kothalkar filed an appeal before the Bombay High Court. The High Court by the impugned judgment dated 5.4.1999 acquitted five of the appellants being Ramchandra Bhanudas Kamble, Ashok Sahebrao Waghmare, Dnyaneshwar Shankar Naikwadi, Santosh Dashrath Kothalkar and Sunil Dhondiram Mane on all counts and ordered them to be released.

14. The prosecution case is that the appellants belong to the Koli community and are inter-related. Between them on the one hand and the informant Rajabhau Kamble (PW-7), Dattatraya Kamble (PW-8), Bhaskar Bhinge (PW-11), his brother Mahesh Bhinge (PW-12), Laxman Kamble (the deceased) and Kailas Bhinge (the deceased), there was long standing enmity of an acute nature. Its details have been furnished in paragraph 9 of the statement of the informant Rajabhau Kamble.

15. It is alleged that on 19.2.1995 at about 5 p.m. the deceased persons Bhaskar Bhinge and Dattatraya Kamble along with some others were watching a film on Television inside the house of the deceased Laxman, in Pandharpur Taluka within the limits of District Sholapur. The informant Rajabhau Kamble and Pandurang Bhinge also came there. After some time Panduran Bhinge left. At about 7.30 p.m. the film got over. Thereafter the deceased persons, Dattatraya Kamble and Rajabhau Kamble came and sat in the courtyard of Laxman. Bhaskar Bhinge remained inside and was listening to the news. At that time in the jeep of acquitted accused Laxman Paparkar, the appellants along with acquitted accused Laxman Paparkar, Walchand Shah, Manikchand @ Babusha Shah and Balu Kamble came. They were armed with weapons Sattur, axe and sword. They entered inside the courtyard of Laxman. Appellants Tulsiram Kamble and Dagadu started inflicting blows with swords on Dattaraya's person. Appellants Rajendra and Anil Mane assaulted Dattatraya with Sattur. Kailas Binge, the deceased at that time was sitting by the side of water tank which was in the courtyard. Appellants Ramchandra with an axe, Santosh, Dhananjay alias Dahanaji acquitted accused Laxman, Walchand and Babusha with swords started assaulting him. Appellant Tulsiram also is said to have joined them. Bhaskar Binge (PW-11) in the meantime came out, caught hold of Babusha Shah, and asked him as to why he was assaulting Kailas, whereupon he inflicted a blow from the blunt side of sword on his right thigh. Thereafter Babusha Shah and Tulsiram lifted Bhaskar Binge and took him to the gate of the house and made him stand there. Appellants Dagadu with sword, Raja alias Rajendra Kothalkar, Anil Mane, Sunil Mane, Ashok Waghmare and Ganesh Paparkar assaulted the deceased Laxman with Sattur on various parts of his body like head, face and hand. In the meantime Bhaskar Bhinge's son Mahesh Bhinge (PW-12) came and Walchand Shah inflicted a sword blow on this person. After assaulting Laxman, Kailas, Dattatraya, Bhaskar Bhinge and Mahesh Bhinge, the appellants and the acquittal accused are alleged to have run away.

21. On the person of Mahesh Bhinge, Dr. Joshi found 2 lacerated wounds. One out of them of the dimensions of 2 cm. x 1 cm. was situated on left hand little finger and the other which was 5 cm. muscle deep was located on the left hand terminal finger.

22. On 20.2.1995 Dr. Joshi (PW-9) performed the autopsy on the corpse of Laxman Kamble and found on the same 16 ante-mortem injuries, their break-up being thus : 15 incised wounds and 1 contused abrasion. Nine of the incised wounds were situated on the head and face and were accompanied by extensive internal damage. According to Dr. Joshi the injuries of the deceased were sufficient in the ordinary course of nature to cause death and five of them namely injuries no.1, 2, 3, 4 and 12 were fatal in nature.

13. In this appeal we are concerned with those convicted by the trial court under Section 302 read with other provisions of the Indian Penal Code as well as those not convicted under Section 302. Out of the seven convicted under Section 302 by the trial court, two have died as already stated above. Hence, we are concerned with the cases of the other accused. We have carefully considered the evidence on record and the judgments of the High Court and trial court.

29. Each of the reasoning assigned by the High Court, in our opinion, is contrary to the well-settled legal principle. The witnesses examined on behalf of the prosecution, apart from being eye-witnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidences. Although in accepting the same, some amount of caution is required to be maintained.

38. The evidence of all the four eye witnesses are broadly consistent. They have mentioned that the accused came to house of the complainant with arms and deadly weapons and they attacked the deceased and other persons including the injured witnesses.

40. In our opinion, the High Court has not assigned cogent or sufficient reasons for disagreeing with the findings of the trial court. The judgment of the High Court, in our opinion, is based on surmises and conjectures. In our opinion this is not a case where the High Court should have interfered with the conviction by the trial court under Section 302 of the Indian Penal Code. Thus, by reason of the judgment of the High Court, a great miscarriage of justice has taken place. It is well settled that when the reasoning of the High Court is perverse, the Supreme Court can set aside the judgment of the High Court of acquittal and restore the judgment of conviction and sentence passed by the trial court, vide State of U.P. vs. Nawab Singh (2005) 9 SCC

43. These facts lead us to the inevitable conclusion that appellants had come with arms and deadly weapons to the house of the complainant party and with the common intention and common object to kill the complainant party.

45. For the reasons given above, the judgment of the High Court is set aside. The conviction of the five accused who had been convicted by the trial court under Section 302 IPC being accused No.2 Ramchandra Bhanudas Kamble, accused No.5 Ganesh Kisan Shirsat @ Paparkar, accused No.6 Ashok Sahebrao Waghmare, accused No.10 Anil Dhondiram Mane and accused No.11 Sunil Dhondiram Mane is restored. These accused are found guilty under Section 302 of the Indian Penal Code and are sentenced to life imprisonment.

46. As regards accused No.7 Dagadu Shankar Naikwadi, he had been convicted by the trial court under Sections 452/149 IPC and sentenced to three years' rigorous imprisonment. The High Court on appeal observed that he had already undergone 12 months' imprisonment and hence his sentence was reduced to the period already undergone provided he deposits a fine of Rs. 10,000/- within a period of six months. In our opinion the High Court erred in reducing the sentence of accused No. 7 Dagadu Shankar Naikwadi since all the four eyewitnesses viz. Rajabhau Kamble (PW7), Dattatraya Kamble (PW8), Bhaskar Bhinge (PW11) and Mahesh Bhinge (PW12) have stated that this accused had also come along with other accused in a Jeep to the complainant's house and had attacked the persons with deadly weapons. It may be mentioned that the State Government had not filed any appeal in the High Court for enhancement of the sentence awarded to accused No. 7 Dagadu Shankar Naikwadi by the trial court and hence we cannot enhance the sentence. However, we set aside the sentence awarded by the High Court and restore the sentence of three years' R.I. awarded to him by the trial court.

49. For the same reason as mentioned above, we restore the sentence of three years' R.I. awarded to accused No. 15 Dhanaji Dashrath Kothalkar by the trial court and set aside the lesser sentence awarded to him by the High Court.

50. We are not oblivious of the limited jurisdiction of this Court in interfering with the judgment of acquittal. The scope of an appeal against acquittal is limited. It is trite that only when two views are possible, this Court cannot interfere with a judgment of acquittal; but that would not mean that despite existence of substantial and compelling reasons, the Court will refuse to interfere in a case where it would be just and proper to do so.

appreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

52. Applying the said principle also, we are of the opinion that it is a fit case, where this Court should exercise its jurisdiction under Article 136 of the Constitution.

53. Each one of the appellants before us was armed with deadly weapons. They came together and death was cause to the deceased. They entered into the house. Two of the appellants had inflicted blows with swords. We are, therefore, of the opinion, that common object on the part of each of the appellants stands proved. Once formation of common object amongst the accused is proved, it is not necessary for the court to consider specific overt act played by each of them.

54. Those found guilty by us should be taken into custody forthwith to serve out their sentences as awarded by the learned trial court. The appeals are allowed.