Bapurao Ambadasroa Dalve And Ors. vs State Of Maharashtra
2001 Latest Caselaw 530 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this Appeal, the Appellants challenge the judgment and order dated 8th May 1996 passed by the Additional Sessions Judge, Osmanabad, in Sessions Case No. 80/94, whereby they have been convicted and sentenced in the manner stated hereinafter :-

1) under Section 302 read with Section 34 of the Indian Penal Code to undergo imprisonment for life and to pay a fine or Rs. 2000/- each, in default to suffer R.I. for six months; and

(2) under Section 447 read with Section 34 of the Indian Penal Code, to undergo R. 1. for one month and to pay a fine of Rs. 100/- each, in default to undergo 7 days' R.I.

2. In short, the prosecution case runs as under.

The informant Vijaykumar @ Pintu Venka-trao Dalvi, P.W.1, is the son of the deceased Venkatrao. At the time of the incident, he along with the deceased and other members of the family was living in village Kandga, taluka and district Osmanabad. The Appellant Bapurao is the father of Appellants Udhav and Shahaji and the uncle of the Appellant Vilas. At the said time, the said Appellants were also living in the said village.

The Appellant Bapurao is the brother of the deceased Venkatroa. The lands of the Appellants were adjoining to that of the deceased. They were having common boundaries on account of which relations between the Appellants and the deceased were strained.

On 10-1-1994, the deceased Venkatroa and Vijaykumar had gone to their agricultural land, wherein jowar crop was standing. At about 7 a.m., when Vijaykumar was uprooting carrots in the said land and Venkatrao had gone to drive the birds away from the other portion of the land, Vijaykumar heard cries of his father, "dying, dying, run, run". He thereafter heard cries, "hit him, hit him by axe and finish him". Consequently, on the said cries, Vijaykumar rushed to the place from where they were coming. When he reached near his father, he found that Appellant Vilas with an axe and the remaining three Appellants with sticks were assaulting him and he was lying in a pool of blood. He also saw that Suresh, P.W.2, and Waman, not examined, had reached there. On seeing Vijaykumar, the Appellants shouted that they would also kill him and on account of fear to his life, he ran away. Thereafter, Waman and Suresh drove the Appellants from the place of the incident.

Thereafter, Vijaykumar went near his father, who told him that since he had received head injury, he would not survive and asked him to take him to the hospital. Thereupon, he brought the bullock cart from the cattle shed and on the same proceeded along with his father to police station, Bembli. On the way, he found Ganpat Ingle, P.W.3, present in his field. He asked him to accompany him. Thereupon, Ganpat Ingle accompanied them in the same bullock cart. On the way, Venkatrao was telling Ganpat Ingle that on account of injuries, he may not survive.

The evidence of Vijaykumar and Pintu shows that the same day at about 9.30 to 10 a.m., he along with his father Vekatrao and Ganpat Ingle in a bullock cart reached police station, Bembli, which was situated at a distance of 10 to 11 kms. from village Kanda. At that time, H.C. Gunwant Koli, P.W. 10, who was on duty there, seeing Venkatrao precariously injured asked Vijaykumar to take him to the hospital, which was located in the immediate proximity of police station, Bembli.

3. The evidence of Dr. Dilip Vyavahare, P.W.9, shows that on 10-1-1994, at about 11.05 a.m., the deceased Venkatrao was referred to him by police station, Bembli, for medical examination. Consequently, he medically examined him and found on his person the following injuries :

1. Incised injury with abrasion at edges 2 in number, size 14 cm x 1/2 cm and 5 cms. x 1/2 cm. on right parietal region, scalp oblique in direction. .

2. Incised wound 4 cms. x 1/2 cm. top and back side of left ear.

3. Contusion 6 cms x 4 cms on right forearm below elbow.

4. Contusion around wrist (right wrist)

5. Contused lacerated wound 4 cms. x 1 cm. on right index finger, at first inter phalangal joint.

6. Contused lacerated wound 3 cms x 1/2 cm dorsal surface at base.

7. Contused lacerated wound 2 cms. x 1/2 cm skin deep plantar side at base.

8. Abrasion 1-1/2 cms. x 1/2 cm, on right finger tip.

9. Contusion (swelling) whole arm of left hand and fingers.

10. Contusion (swelling) around mid part left forearm.

11. Punctured wound 1/2 cm x 1/2 cm base of mid finger dorsally left hand.

12. Incised wound and abrasion at edges 3 cms x 1/2 cm left shin mid part.

13. Contusion 8 cms. x 12 cms on left leg above ankle.

14. Incised wound with abrasion at edges 4 cm x 1/2 cm on right shin

In the opinion of Dr. Vyavahare, injuries Nos. 1,2,12 and 14 could be caused by the axe shown to him (Article No. 5) (the axe recovered on the pointing out of Appellant Vilas), injury No. 11 by the tip the said axe and the remaining injuries were attributable to a hard and blunt object.

In his statement in the trial Court, Dr. Vyavahare stated that cumulatively, the injuries were sufficient in the ordinary course of nature to cause death.

4. The evidence of Ganpat Ingle, P.W.3, shows that after the doctor had medically examined Venkatrao, the latter told him that Appellants Bapurao, Udhav and Vilas had assaulted him.

5. The evidence of P.H.C. Gunwant Koli, P.W.10, shows that 10 to 15 minutes after he had asked Vijaykumar to take Venkatrao to the hospital, he proceeded to the hospital for recording Venkatrao's statement. He asked the doctor on duty (Dr.Vyavahare) whether Venkatrao was capable of making a statement and on his replying in the affirmative, in his presence, recorded his statement, Exhibit 42. After recording the statement, he read over the same to Venkatrao who admitted that its contents were true. Since on account of injuries suffered by him on the hand, Venkatrao was not able to sign, he obtained his thumb impression on Exhibit 42.

It is pertinent to mention that Exhibit 42 was recorded in Marathi. Since it is a dying declaration, we intend setting out its gist in English. In short, what has been stated therein by Venkatrao is that they were 8 brothers in all; two were elder to him and six were younger to him; and all were living separately. There was 20 acre of land, which was owned jointly. On 10-1-1994, at 7 a.m. he had gone to the field. At about 8 a.m., the 4 Appellant came, Appellants Vilas was armed with an axe and the others were with sticks. Thereafter, they launched an attack on him. He cried, whereupon Pintu (Vijaykumar, P.W.I), Suresh (P.W.2) and Waman came. They intervened.

It is pertinent to mention that at the foot of Exhibit 42, there is an endorsement by Dr.Vyavahare (made at 11.05 p.m., on 10-1-1994) in terms that the patient was conscious; had given statement in his presence; whatever he told was written by the police; and after it was written, it was read out to him.

6. It is pertinent to mention that his dying declaration has been treated to be the F.I.R. and on its basis, Cr.No.2/94 was registered at police station, Bembli, against the Appellants.

7. It is significant to point out that since the condition of Venkatrao was precarious, after the recording of his dying declaration, he was shifted to Civil Hospital, Osmanabad.

8. The evidence of Sudhamati, P.W.4, the wife of Venkatrao, shows that at about 1 p.m., Ganpat Ingle, P.W.3 informed her that Venkatrao had been injured and he had been taken to Police Station, Bembli. Consequently, on a bus, Sudhamati went to police station, Bembli, where she was informed that Venkatrao had been shifted to the Civil Hospital, Osmanabad. She reached that said hospital at about 2 to 2.30 p.m. She found that Venkatrao way lying on a cot with a bandage on his head and other parts of his body. She asked him as to who had beaten him, whereupon, he replied that 4 Appellants had beaten him.

9. The evidence shows that Venkatrao succumbed to his injuries at about 6 p.m. in the Civil Hospital, Osmanabad.

The autopsy on the corpse of the deceased Venkatrao was conducted on 11-1-1994 by Dr. Ramchand Mali, P.W.11, who found on it the following antemortem injuries :-

1. Injuries on the head region -

(A) sutured wound over the parietal region of 2 different sides 9 cms. in length and 3 cms. in breadth.

(B) Sutured wound in post auricular region on left ear 5 cms in length.

2. Injuries on right upper extremity

(A) Contusion on the right arm on two different sides -

(a) Contusion on the right arm 14 cms x 5 cms.

(B) Contusion on the right forearm at two different sites.

(a) 10 cms x 3 cms. (b) 5 cms. x 3 cms.

(C) Contusion on the dorsal aspect of right hand 7 cms. x 3 cms.

(D) Sutured wound on the index finger of right hand 3 cms. in length.

(E) Sutured wound on the thumb of right hand 2 cms. in length.

3. Injury on left upper extremity.

(A) Contusion on the left forearm 10x3 cms.

(B) Contusion on left hand 7 cms x 3 cms.

(C) Sutured wound on the left hand, dorsal aspect 2 cms. in length.

4. Injuries on right: lower extremity

(A) Contusion on the right knee joint 3 cms x 3 cms.

(B) Contusion on the right left, over the shin of tibia 3 cms x 3 cms.

(C) Sutured wound on right leg over the skin of tibia 3 cms in length.

(D) Sutured wound on right leg above ankle joint 3 cms, in length.

(E) Contusion on the right ankle joint 3 cms. x 3 cms.

5. Injuries on left lower extremity.

(A) Contusion on the left leg in lower 1/3rd region 8 cms x 3 cms.

(B) Sutured wound on the left leg middle 1/ 3rd region and different sites 1 cm. in length.

(C) Sutured wound on the left leg middle 1-3rd region and different sites 1 cm. in length.

6. Fractures of different bones.

(A) Right hand (a) fracture at proximal phalanx of index finger of right hand, and (b) fracture of 2nd phalanx of middle finger or right hand.

(B) Right forearm - fracture of right ulna lower l/3rd region

(C) Left hand - fracture of 2nd , 3rd and 4th metacarpal bones of left hand.

(D) Left forearm - fracture of radius left (in mid region and middle and lower 1/3 region)

(E) Fracture of tibia and fibula left in lower 1/3 region.

In the opinion of Dr. Mali, the said injuries were sufficient in the ordinary course of nature to cause death.

10. The investigation was conducted in the usual manner by A.S.I. Raghunath Kawade, P.W.12 and P.S.I. Chandrakant Kondare, P.W.13.

A.S.I. Kawade, after registration of Cr. No. 2/94 went to the place of the incident and prepared pa.nchnama of the place of the incident, seizing therefrom jowar leaves stained with blood, two sticks, out of which one was stained with blood, and a pair of chappals. Thereafter, he recorded the statements of witnesses Suresh, P.W.2 Vijaykumar @ Pintu, P.W.1, Ganpat Ingle, P.W.3 and some others.

The evidence of P.S.I. Chandrakant Kondara shows that the same night he took over the investigation and between 11.05 and 11.20 p.m., he arrested Appellants Bapurao, Udhav and Vilas. At: that time, Vilas was putting on a blood stained pyjama, which he seized under a panchnama, Exhibit 27, in the presence of public parioh, Prakash Dalve.

On 11-1-1994, during the course of interrogation, Vilas expressed his willingness to have the axe, which he had concealed, recovered. Consequently, he sent for public panchas, one out of whom, Ramchandra Dandbole has been examined as P.W.6, and in his presence, recorded the said willingness under a panchnama, Exhibit 29. Thereafter, along with Vilas, the said public panch, another public panch and police personnel, he proceeded, let by Vilas, in a jeep. The jeep was taken to village Kangda, where Vilas asked that it should stopped. Thereafter, Vilas led them to one house from where he took out separately the blade of an axe and the handle of an axe. The said seizure was made under a panchnama, Exhibit 29A.

11. On 24-1-1994, P.S.I, Kondare arrested Appellant Shahaji. On 26-1-1994, during the course of interrogation, he expressed his willingness to recover the stick which he had concealed. Consequently, in the presence of public panchas, one out of whom Subhash Gangthade has been examined as P.W.7, the said willingness was recorded under a panchnama, Exhibit 34. Thereafter, the Appellant Sahaji from a field situated in village Kangda took out a stick which he had concealed in the standing crop of Jowar. The said seizure was made under a panchnama. Exhibit 34A.

On 23-1-1994, P.S.I. Kondare sent the seized articles to Chemical Analyst and, after receipt of the report of the Chemical Analyst, submitted the charge-sheet against the Appellants.

12. The case was committed to the Court of Session in the usual manner, where the Appellants were charged for offences punishable under Section 302 read with Sections 34 and 447 read with Section 34 of the Indian Penal Code, to which charges they pleaded not guilty and claimed to be tried.

During trial, in all the prosecution examined 13 witnesses. Two of them, namely Vijaykumar @ Pintu, P.W.1, and Suresh, P.W.2, were examined as eye-witnesses. In addition, the prosecution adduced evidence in the form of three dying declarations, which were made by the deceased; one recorded by P.H.C. Gunwant Koli, P.W.10, and two oral dying declarations, which were made by the deceased to Ganpat Ingle, P.W.3 and his wife Sudhamati, P.W.4.

The learned trial Judge believed the said evidence and convicted and sentenced the Appellant in the manner stated in paragraph 1.

13. We have heard learned Counsel for the parties and perused the entire evidence on record. In our view, the prosecution has failed to prove the guilt of Appellants Bapurao Ambadasrao Dalve and Shahaji Bapurao Dalve beyond reasonable doubt and hence the said Appellants deserve to be acquitted. We, however, have no reservations in observing that the learned trial Judge acted correctly in convicting the Appellants Udhav Bapurao Dalve and Vilas Shivram Dalve, both under Sections 302 read with Section 34 and 447 read with Section 34, of the Indian Penal Code.

14. The evidence on the basis of which the conviction of the Appellants is founded can be classified under two heads, namely :-

(a) the ocular account furnished by Pintu, P.W.I and Suresh, P.W.2; and

(b) the three dying declarations made by the deceased, one of which recorded by P.H.C. Gunwant Koli, P.W. 10, and the other two, both oral, made by the deceased to Ganpat Ingle, P.W.3 and his wife Sudhamati, P.W.4.

We now propose examining both categories of evidence.

15. We begin with the ocular account furnished by Vijaykumar @ Pintu, P.W.1, and Suresh, P.W.2. In paragraph 2 of our judgment, we have set out the prosecution story primarily from the recitals emerging in the examination in chief of the said witnesses and hence do not want to burden our judgment by reiterating all the details.

In short, Vijaykumar stated that on the date and time of the incident, he along with his father Venkatrao was in his field where jowar crop was standing and Suresh stated that he was in an adjoining field situated 300 ft. away from the field of Vijaykumar.

The evidence of Vijaykumar shows that, at the behest of his father, he was uprooting carrots in his field and his father had gone to drive away birds in another part of the field. He stated that he heard the cries of his father, "dying, dying, run, run" and on hearing them, reached that part of the field from where they were coming and saw that Appellant Vilas with an axe and remaining three Appellants with sticks were assaulting his father, who was lying in a pool of blood.

The statement of Suresh is that on hearing the cries of the deceased, he rushed towards the field of the deceased and saw Appellants Bapurao and Udhav with sticks and Appellants Vilas with an axe belabouring the deceased.

16. We have gone through the evidence of both Vijaykumar @ Pintu and Suresh. We find that the account furnished by them is corroborated by the medical evidence. Earlier, we have referred to the injuries found on the person of the deceased; both in his lifetime when he was medically examined by Dr. Vyavahare, P.W.9, and after his death when his autopsy was conducted by Dr. Ramanand Mali, P.W.11. It is pertinent to mention that Dr. Vyavahare has categorically stated that excepting injuries Nos. 1,2,12 and 14, which could be caused by the axe shown to him (Article No.5), and injury No.l1 which could be caused by the tip of the said axe, the remaining injuries could be caused by sticks.

17. Mrs. Jadhav, learned Counsel for the Appellants strenuously urged that Vijaykumar @ Pintu in his cross-examination has admitted that Appellant Bapurao was a leper and had lost fingers of both the hands. She urged that, on the face of this fact, the prosecution case that he assaulted the deceased with a stick cannot be accepted. She also urged that on account of this circumstance, the evidence of Vijaykumar even against the other Appellants cannot be relied upon, Mrs. Jadhav also urged that since Suresh, P.W.2, does not speak about the participation of Appellant Shahaji in the incident and in the oral dying declaration made by the deceased to Ganpat Ingle, there is no mention about him and Vijaykumar speaks about his participation, not only should Shahaji be acquitted by Vijaykumar's evidence against Appellants Udhav and Vilas be not relied upon.

18. We have reflected over the contention of Mrs. Jadhav and are constrained to observe that we find merit in the same only to the extent that, in our view, it would be unsafe to sustain the conviction of the Appellants Bapurao and Shahaji.

The Supreme Court and this Court, times out of number, has held that the principle, "falsus uno falsus omnibus", is not a rule applicable to our country. Merely because we have reservations regarding the participation of Appellants Bapurao and Shahaji in the incident would not mean that the entire statement of Vijaykumar @ Pintu, P.W.1, and Suresh P.W.2, would be rendered useless. It is pertinent to mention both of them have stated that Appellant Udhav was armed with a stick and Appellant Vilas with an axe and they assaulted the deceased with the said weapons. Dr. Dilip Vyavahare, P.W.9, who medically examined deceased Venkatrao in his lifetime, found as may as 5 axe injuries and 9 blunt weapon injuries on the person of the deceased.

We have gone through the evidence of Vijaykumar and Suresh and although they were cross-examined, their evidence could not be rendered unacceptable vis-a-vis Appellants Udhav and Vilas.

Apart from it, the said Appellants are also named in the oral dying declaration made by deceased to Ganpat Ingle, P.W.3 and Sudhamati, P.W.4, and we find the said oral dying declarations to be trustworthy against Appellants Udhav and Vilas.

19. Mrs. Jadhav, learned Counsel for the Appellants, strenuously urge that the dying declaration recorded by H.C. Gunwant Koli, P.W.10, does not inspire any confidence. She pointed out that the informant Vijaykumar in his examination in chief stated that he did not know whether the statement of the deceased had been recorded. She also pointed out that his dying declaration is purported to have been recorded at the Government Hospital at Bembali, but in the last lines of it, the deceased has mentioned that since his condition was serious, he should be removed to a hospital.

Mrs. Jadhav also pointed out some other infirmities in this dying declaration.

20. We have reflected over the criticisms canvassed by her and we are of the view that it would not be safe to act on it.

21. However, even if the dying declaration recorded by P.H.C. Gunwant Koli is excluded, in our judgment, their remains sufficient evidence, to which we have referred to earlier, which fixes the involvement of the Appellants Udhav and Vilas in the crime.

We may also mention that against Appellant Vilas, there is some other evidence also. Pursuant to his arrest, the blood stained pyjama which the Appellant Vilas was putting on was seized by the investigating officer in the presence of the public panch Prakash Dalvi, P.W.5 under a panchnama. It is pertinent to mention that the said pyjama was sent to the Chemical Analyst who found on it human blood bearing blood group 'O'. Since the report of the Chemical Analyst shows that blood of the same group was found on the clothes of the deceased, it is obvious that on the said pyjama, blood of the deceased has been found. In our view, this is an additional circumstance, which incriminates Appellant Vilas.

22. We may also mention that on the pointing out of Appellant Vilas, a blood stained axe and a handle of the axe were separately recovered, but the said recovery, which has not been relied upon by the learned trial Judge for reasons stated by him in paragraph 46 of the impugned judgment, cannot be used for incriminating the Appellant Vilas, because recovery of a weapon can only constitute incriminating evidence against an accused if there is evidence of authorship of its concealment by him. In the instant case, the investigating officer, P.S.I. Kondare, in whose presence, it was effected, in his cross-examination in paragraph 7 admitted that in the panchnama of information furnished by Vilas leading to the recovery of axe, there is no mention that he had concealed it. Since the panchanama is a contemporaneous document and it had not been reflected in it that the Appellant Vilas has concealed the axe, in our view, it would not be safe to accept the subsequent substantive evidence of the investigating officer that he had concealed it, especially because the public panch, Ramchandra Dandbole, P.W.6, in his substantive statement does not speak about Vilas admitting that he had concealed the axe.

23. This leaves us with only one question, namely, whether the learned trial Judge acted correctly in convicting the Appellants Udhav and Vilas for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Our answer to it is in the affirmative, in spite of the strenuous contention of Mrs. Jadhav that only an offence Under Section 304, Part II, read with Section 34 of the Indian Penal Code would be made out against the said Appellants.

24. In the instant case, we have seen that the Appellant Udhav is alleged to have belaboured the deceased with a stick and the Appellant Vilas assaulted him with an axe. We have also seen that amongst the injuries sustained by the deceased, two of the incised wounds, viz., injuries Nos. 1 and 2, were inflicted on the head. We have further seen that beneath six of the injuries suffered by the deceased, the autopsy surgeon found the following fractures :-

6. Fractures of different bones.

(A) Right hand (a) fracture at proximal phalanx of index finger of right hand, and (b) fracture of 2nd phalanx of middle finger of right hand.

(B) Right forearm - fracture of right ulna lower 1/3rd region.

(C) Left hand - fracture of 2nd, 3rd and 4th metacarpal bones of left hand.

(D) Left forearm - fracture of radius left (in mid region and middle and lower I/3rd region)

(E) Fracture of tibia and fibula left in lower 1/3rd region.

It is pertinent to mention that both, Dr. Vyavahare, P.W.9, who medically examined the deceased in his lifetime, and Dr. Mali, P.W.11, the autopsy surgeon, candidly stated that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. Since the evidence of eye witnesses Vijaykumar and Suresh shows that the said Appellants intentionally inflicted the said injuries on the person of the deceased, in furtherance of their common intention to commit the murder of the deceased, the act of the Appellants would be squarely covered by clause Thirdly of Section 300 of the Indian Penal Code. Clause Thirdly' of Section 300 of the Indian Penal Code reads thus :-

Except in the cases hereinafter excepted, culpable homicide is murder, -

...

...

3rdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,....

A perusal of the said clause would show that for its application, two requirements have to be satisfied namely :-

(a) There should be intention to inflict injuries which have been inflicted, in contradistinction to their being accidental and

(b)The injuries inflicted should be sufficient in the ordinary course of nature to cause death.

In the instant case, both the prerequisites have been satisfied. The evidence of both the eye witnesses, Vijaykumar & Pintu and Suresh, categorically shows that Appellant Udhav intentionally assaulted the deceased Venkatrao with a stick and Appellant Vilas intentionally assaulted him with an axe. There is nothing in their evidence to suggest that the blows given by the said Appellants were accidentally suffered by the deceased. The evidence of the two doctors, to which we have adverted to above clearly shows that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. In such a situation, in our judgment, the office made out against the Appellants Udhav and Vilas would squarely fall within the four corners of clause "thirdly" of Section 300 of the Indian Penal Code, the breach of which is punishable Under Section 302 of the Indian Penal Code. Since the said Appellants committed the said act in furtherance of their common intention to commit the murder of the deceased Venkatrao, the offence Under Section 302 read with Section 34 of the Indian Penal Code is squarely made out against them.

25. To vindicate her submission that only an offence Under Section 304 Part II read with Section 34 of the Indian Penal Code is made out against the Appellants and not one Under Section 302 read with Section 34 of the Indian Penal Code is made out against them, Mrs. Jadhav, learned counsel for the Appellants, strenuously contended that although Appellant Vilas inflicted axe blows on the head of the deceased, but the resultant incised wounds were simple in nature and all the fractures suffered by the deceased relate to non-vital parts of his body. In her contention, these two circumstances show that Udhav and Vilas did not share any common intention to commit the murder of the deceased and at the highest, they can only be fastened with sharing common intention in respect of the knowledge of death of the deceased in terms of clause thirdly of Section 299 of the Indian Penal Code, the breach of which would be punishable Under Section 34 Part II read with Section 34 of the Indian Penal Code.

26. We have reflected over the said submission of Mrs. Jadhav and are constrained to observe that we do not find merit in it, because, as observed by us earlier, the said Appellants, in furtherance of their common intention, intentionally inflicted injuries on the person of the deceased, which per medical evidence, were sufficient in the ordinary course of nature to cause death, and, therefore, their act would be covered squarely by clause thirdly of Section 300 of the Indian Penal Code and they would be guilty of the offence punishable Under Section 302 read with Section 34 of the Indian Penal Code.

In the connection, we would like to advert to the decision of the Supreme Court (State of Andhra Pradesh v. Rayavarapu Punnayya. In that case, five accused persons with heavy sticks belaboured the deceased and two of them, namely, A-1 and A-2, indiscriminately pounded the legs and arms of the deceased. As a consequence of the assault, the deceased, as is manifest from paragraph 4 of the judgment, suffered 19 injuries, 9 out of which were grievous in nature, they being :-

1. Dislocation of distal end of proximal phalanx of left middle finger.

2. Fracture of right radius in its middle.

3. Dislocation of lower end of right ulna.

4. Fracture of lower end of right femur.

5. Fracure of medial malleolus or right tibia.

6. Fracture of lower 1/3 of right fibula.

7. Dislocation of lower end of left ulna.

8. Fracture of upper end of left tibia.

9. Fracture of right patella.

A perusal of paragraph 11 of the judgment shows that before the Apex Court, it was urged that the offence made out would be culpable homicide not amounting to murder, punishable Under Section 304 of the Indian Penal Code. The Supreme Court repelled the said contention, and after referring to its decision rendered in the case of Virsa Singh v. State of Punjab, and relying upon an earlier decision rendered by it in the case of Anda v. State of Rajasthan, wherein also fractures on non-vital parts of body of the deceased were caused, took the view that since the appellants intentionally inflicted injuries which as per evidence of the autopsy surgeon, Dr. Sarojini, were sufficient in the ordinary course of nature to cause death, the act of the Appellants would be squarely covered by clause thirdly of Section 300 of the Indian Penal Code.

In our view, the decisions of the Supreme Court reported in A.I.R. 1977 S.C. 45 1977 Cril L.J.1 Supra and supra leave no room for doubt that the offence made out against the Appellants Udhav and Vilas would be one Under Section 302 read with Section 34 of the Indian Penal Cod.

27. We now propose referring to the decision of the Supreme Court reported in A.I.R. 1966 S.C. 2741 : 1996 Cri.L.J. 3991 v. State of Punjab) which was cited by Mrs. Jadhav to press her aforesaid contention. She pointed out that a perusal of paragraph 2 of the said decision would show that Appellant Billu inflicted a Gandhali blow on the head of Mana and Ranjha inflicted a stick blow on his right arm, as a consequence of which Mana fell down; thereafter, Kala, who was extended the benefit of the Children's Act, gave two Rasia blows on the the legs of Mana and when Thanu tried to rescue Mana, Billu gave a Gandhali blow, which hit Thanu on his back, as a result of which he fell down and thereafter, Ranjha and Kala started inflicting further blows on Thanu's person and a few hours later, Thanu succumbed to his injuries.

Mrs. Jadhav pointed out that a perusal of paragraph 4 of the said decision would show that the deceased Thanu in all had suffered 5 contusions, two lacerated wounds and one abrasion. She pointed out that in the opinion of the autopsy surgeon, he died on account of haemorrhagic shock due to rupture of spleen. Mrs. Jadhav also pointed out that a perusal of paragraph 10 of the judgment would show that inspite of the fact that beneath injury No.3, which was a contusion on the back as a result of which there was fracture of three ribs, the Supreme Court converted the conviction from Under Section 302 read with Section 34 of the Indian Penal Code to one Under Section 304, Part II read with Section 34 of the Indian Penal Code.

28. We have gone through the said decision and regret that it would have no application to our case. The said decision, in our judgment, was on the facts peculiar to the said case. In that case, the deceased was an intervener. Here, the deceased was the principal target. Further, in that case, a perusal of the antemortem injuries suffered by the deceased would show that none of the injuries found on the person of the deceased were as a result of a lethal weapon. All of them were by blunt object. In the instant case, the five incised injuries sustained by the deceased were all by a lethal weapon, namely an axe and unlike in the said decision where none of the injuries were on the head of the deceased, two of them were on the head of the deceased. Again, in the said case, there was only fracture of 3rd, 4th and 5th ribs beneath antemoratem injury No.5, resulting in rapture of the spleen leading to death of the deceased. Here, the deceased suffered six fractures, to which we have adverted to earlier.

On the face of the said distinction, the said decision would not be applicable.

29. It is well settled that the question of common intention is not a question of law, but one of fact. The answer to the question as to what is the common intention in a given case would depend on the facts of the case. In the instant case, we have seen that there was enmity between the Appellants Udhav and Vilas on one hand and the deceased on the other. We have also seen that in a premeditated manner, while the deceased Venkatroa was on his field , Appellant Udhav armed with a stick and Appellant Vilas with an axe, along with Bapurao and Shahaji, whom we are going to acquit, came and launched a massive assault on the deceased, resulting in 14 injuries on his person, six of which were fractures. We have also seen that according to the eye witnesses, the said injuries were intentionally inflicted by Udhav and Vilas on the person of the deceased. We have also seen that the evidence of both the doctors shows that they were sufficient in the ordinary course of nature to cause death. On the said facts, in our view, the irresistible inference is that Appellants Udhav and Vilas inflicted the said injuries on the person of the deceased in furtherance of their common intention to commit his murder and hence, as mentioned by us earlier, an offence punishable Under Section 302 read with Section 34 of the Indian Penal Code would be made out against Appellants Udhav and Vilas.

30. In the result, this Appeal is partly allowed. Although we acquit Appellants Bapurao Ambadasrao Dalve and Shahaji Bapurao Dalve for offences Under Section 302 read with 34, I.P.C. and 447 read with 34, I.P.C., and set aside their convictions and sentences on the said counts and direct that, in case they have paid the fine, it shall stand refunded to them, we uphold the convictions and sentences of the Appellants Udhav Bapurao Dalve and Vilas Shivram Dalve for the said offences and direct that these two Appellants, who are in jail shall serve out their sentence.

Appellants Bapurao and Shahaji are on bail. They need not surrender. Their bail bounds shall stand cancelled and sureties discharged. Certified Copy expedited.