(2009) 1 S.C.R.. 649

RAMCHANDRA DHONDIBA KAWARE A v.

ST ATE OF MAHARASHTRA (Criminal Appeal No.155 of 2009)

JANUARY 27, 2009 B

[DR. ARIJIT PASAYAT AND ASOK KUMAR ..

GANGUL Y, JJ.]

, S.302, 304 Part I - Eye-witness account believed by Trial Court - Conviction under s.302 ordered - Upheld by High c

Court - On appeal, Held: Considering the background facts appropriate conviction would be under s.304 Part I /PC - Custodial sentence of 10 years would meet the ends of justice.

The conviction of the appellant under s.302 IPC by D the trial court and as upheld by the High Court is under challenge in this appeal.

Partly allowing the appeal, the Court

HELD:1. The evidence of PWs 1 and 4 does not E suffer from any infirmity. PW-1 has categorically stated that he was awakened by the barking of dogs. He heard the sound of somebody being beaten. He saw the incident in the light from a lantern when the accused was hitting his father on the head with a yoke. The witness F claimed to have chased the accused but could not catch

him~ The evidence of PW-4, the widow was to the similar effect. Both the trial court and the High Court have referred to the evidence in great detail and found that their evidence is credible and cogent and unerringly points at G the accused to be author of the crime. [Para 5) [651-H;

652-A-B]

2. It appears that the accused_and the deceased were in inimical terms. Only one blow was given with the yoke H 649

A in the night. PW-4 has categorically admitted that it was dark, but he identified the accused because he was known to him. Number of injuries is always not a determinative factor regarding applicability of Section 302 IPC. The nature of the weapon, place where it was struck B and several other relevant factors throw light on this aspect. Considering the background facts of the present case the appropriate conviction would be under Section 304 Part I IPC. Custodial sentence of 10 years would meet the ends of justice. [Para 5] [652-C-D] c CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 155 of 2009.

From the Judgment and Order dated 16/10/2006 of the High Court of Judicature at Bombay in Crl. Appeal No. 616 of

D 2002.

S. Balaji and Madhusmita Bora for the Appellant.

R.K. Adsure for the Respondent.

E The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court dismissing the appeal filed F by the appellant. Learned 2nd Additional Sessions Judge,

Sangli, had convicted the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC') and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- with default stipulation.

3. Prosecution version in a nutshell is as follows:

The accused-appellant and one Shivaji Baba Lohar who was working with Keru (hereinafter referred to as the deceased') were on inimical terms. Shivaji's sister was married H

RAMCHANDRA DHONDIBA KAWARE v. STATE OF 651

MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

to the accused. The accused had borrowed money from Shivaji A which he had not returned. The accused used to visit Shivaji in the field owned by the deceased. Keru and his family knew the accused and would often give him agricultural produce from their lands since the accused was jobless. Shivaji demanded repayment of the loan he had advanced to the accused. The accused was annoyed by this and on 3.6.2000 he went to Keru's farm. Keru was asleep at a little distance from the rest

of the members of his family. Shivaji was sleeping at another spot on the farm, a little further away from the family. The accused entered the farm before daybreak, at about 3 am. The c dogs started barking and Maruti, the son of the deceased saw the accused beating the victim with a yoke. Maruti alerted Shivaji and they chased the accused, but he managed to escape their clutches. Maruti and Shivaji returned to the spot where the victim was lying. They found that his skull had been 0 fractured and a part of his brain was protruding. Three fingers of his right hand were fractured and broken. His head and ears were bleeding. Maruti lodged a complaint with the police.

The dead body of Keru was taken for the autopsy. The required panchanamas were drawn up and statements of witnesses were recorded. The accused was apprehended and charged for having committed an offence punishable under section, 302 IPC. His trial was committed to Sessions. The Sessions Court after consideration of the evidence on record as noted above convicted the accused.

Before the High Court the only stand was that the evidence of the so called eye witnesses PWs 1 and 4 cannot be relied upon. It was also submitted that a case under Section 302 IPC was not made out. The High Court found no substance in the

plea and dismissed the appeal as aforenoted.

4. The stand taken before the High Court was re-iterated in the present appeal.

5. The evidence of PWs 1 and 4 does not suffer from any infirmity. PW- 1 has categorically stated that he was awakened H

A by the barking of dogs. He heard the sound of somebody being beaten. He saw the incident in the light from a lantern when the accused was hitting his father on the head with a yoke. The witness claimed to have chased the accused but could not catch him. The evidence of PW-4, the widow was to the similar B effect. Both the trial Court and the High Court have referred to the evidence in great detail and found that their evidence is credible and cogent and unerringly points at the accused to be author of the crime. The other question is regarding applicability "" of Section 302 IPC. It appears that the accused and the c deceased were in inimical terms. Only one blow was given with the yoke in the night. PW-4 has categorically admitted that it was dark, but he identified the accused because he was known to him. Number of injuries is always not a determinative factor regarding applicability of Section 302 IPC. The nature of the

0 weapon, place where it was struck and several other relevant factors throw light on this aspect. Considering the background facts of the present case according to us the appropriate conviction would be under Section 304 Part I IPC. Custodial sentence of 10 years would meet the ends of justice.

6. The appeal is allowed to the aforesaid extent.

G.N.

Appeal partly allowed.