Bombay High Court
Chandrakant Krishna Jadhav vs Chandrakant Krishna Jadhav on 29 October, 2013
Bench: V.K. Tahilramani, A.R. Joshi
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judgment in cr. apeal 433-10, 752-10 and 832-10.doc
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
[I] CRIMINAL APPEAL No. 433 of 2010.
[By accused persons against conviction]
1) Chandrakant Krishna Jadhav
2) Sarjerao Dattatraya Jadhav
3) Prakash Babasaheb Jadhav
4) Vijaykumar Babasaheb Jadhav
5) Sambhaji Chandrakant Jadhav
6) Ashok Pandurang Jadhav
7) Rajaram Shripati Jadhav
8) Sardar Shripati Jadhav
9) Raghunath Baburao Kadam
10)Sagar Raghunath Kadam
11)Sarjerao Krishna Patil
12)Vikas Shankar Jadhav
13)Bajirao Chandrakant Jadhav
14)Mansing Shripati Patil
15)Savala Devappa Jadhav
16)Prakash Khandu Jadhav
17)Shivaji Vasant Jadhav
18)Yuvraj Ashok Jadhav
..Appellants/Orig.Accused No.1 to 18)
WITH
[II] CRIMINAL APPEAL No. 832 of 2010
[By State against acquittal]
State of Maharashtra Appellant.
(Original Complainant)
Versus
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1) Chandrakant Krishna Jadhav
2) Sarjerao Dattatraya Jadhav
3) Prakash Babasaheb Jadhav
4) Vijaykumar Babasaheb Jadhav
5) Sambhaji Chandrakant Jadhav
6) Ashok Pandurang Jadhav
7) Rajaram Shripati Jadhav
8) Sardar Shripati Jadhav
9) Raghunath Baburao Kadam
10) Sagar Raghunath Kadam
11) Sarjerao Krishna Patil
12) Vikas Shankar Jadhav
13) Bajirao Chandrakant Jadhav
14) Mansing Shripati Patil
15) Savala Devappa Jadhav
16) Prakash Khandu Jadhav
17) Shivaji Vasant Jadhav
18) Yuvraj Ashok Jadhav
..Respondents/Orig.Accused No.1 to 18)
WITH
[III] CRIMINAL APPEAL No. 752 of 2010.
[Appeal for enhancement of sentence]
State of Maharashtra ..Appellant
(Original Complainant)
Versus
(1) Chandrakant Krishna Jadhav
age 56 years, occupation agriculture,
residing at Kololi, taluka Panhala, District
Kolhapur.
(2) Sarjerao Dattatraya Jadhav
Age 50 years,
residing as above.
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(3) Prakash Babasaheb Jadhav
age 35 years,
residing as above.
(4) Vijaykumar Babasaheb Jadhav
age 27 years,
residing as above.
(5) Sambhaji Chandrakant Jadhav
age 36 years,
residing as above.
(6) Ashok Pandurang Jadhav
age 36 years, residing as above.
(7) Rajaram Shripati Jadhav
age 56 years,
residing as above.
(8) Sardar Shripati Jadhav
age 35 years,
residing as above.
(9) Raghunath Baburao Kadam
Age 54 years,
residing as above.
(10) Sagar Raghunath Kadam
Age 26 years,
residing as above.
(11) Sarjerao Krishna Patil
age 35 years,
residing as above.
(12) Vikas Shankar Jadhav
age 29 years,
residing as above.
(13) Bajirao Chandrakant Jadhav
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judgment in cr. apeal 433-10, 752-10 and 832-10.doc
Age 45 years,
residing as above.
(14) Mansing Shripati Patil
Age 35 years,
residing as above.
(15) Savala Devappa Jadhav
Age 40 years,
residing as above.
(16) Prakash Khandu Jadhav
Age 32 years,
residing as above.
(17) Shivaji Vasant Jadhav
Age 45 years,
residing as above.
(18) Yuvraj Ashok Jadhav
age 21 years,
residing as above.
..Appellants/Orig.Accused No.1 to 18)
Appearance in Cr.Appeal No.433 of 2010.
Mr A.P.Mundargi, Senior Advocate i/by Mr Shekhar A. Ingwale
with Anand S. Patil for the Appellants.
Mr V.V.Purwant, Advocate for Original Complainant.
Mrs V.R. Bhonsale, A.P.P. for the State.
Appearance in Cr. Appeal No.752 of 2010
Mrs V.R. Bhonsale, A.P.P. for the State.
Mr A.P.Mundargi, Senior Advocate i/by Mr Shekhar A. Ingwale
with Anand S. Patil for the Respondent Nos. 2 and 5 to 18.
Mr V.V.Purwant, Advocate for Original Complainant.
Appearance in Cr. Appeal No.832 of 2010
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Mrs V.R. Bhonsale, A.P.P. for the Appellant/State.
Mr A.P.Mundargi, Senior Advocate i/by Mr Shekhar A. Ingwale
with Anand S. Patil for the Respondent Nos. 1,2 and 5 to 18.
Mr V.V.Purwant, Advocate for Original Complainant.
CORAM :- SMT. V.K. TAHILRAMANI AND
A.R. JOSHI, JJ.
RESERVED ON :- 19 th October, 2013.
PRONOUNCED ON:- 29 th October, 2013.
(In Chamber No.59 at 2:45 p.m.)
JUDGMENT:-(Per A.R.Joshi,J)
1.
Heard rival arguments at length on all the three
appeals. Criminal Appeal No.433 of 2010 is preferred by all
eighteen appellants - original accused challenging the
judgment and order dated 7th June, 2010 passed by
Additional Sessions Judge, Kolhapur. By the said impugned
judgment and order all 18 accused were convicted for the
offence punishable under Section 304 Part II, Section 326
and 341, all read with Section 149 and Sections 144, 147,
148 of IPC. For the offence under Section 304 Part II of IPC
all the appellants-accused were sentenced to suffer R.I. for
five years each. For the offence under Section 326 read
with Section 149 of IPC, they were sentenced to suffer RI
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for three years each and to pay fine of Rs.1000/- in default
to suffer RI for one month each. For the offence under
Section 341 read with Section 149 of IPC all the
appellants/accused were sentenced to pay a fine of
Rs.500/- each, in default to suffer SI for 15 days each.
Though all the appellants/accused were convicted for the
offence punishable under Sections 144, 147, and 147 no
separate punishment was imposed on them. The
substantive sentences were directed to run concurrently. By
the same impugned judgment and order all the appellants -
accused were acquitted of the offence under section 135 of
the Bombay Police Act. This acquittal is challenged by the
State in Criminal Appeal No.832 of 2010.
2. Criminal Appeal No. 752 of 2010 is also preferred by
the State for enhancement of the punishment imposed
against all the appellants/accused for the offence under
Section 304 Part II, read with Section 149 of the IPC.
Apparently, it must be construed that by filing the said
appeal for enhancement on the aspect of quantum of
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punishment, admittedly, the State has not prayed for
punishment of the appellants accused for the offence
punishable under Section 302 of IPC. This is significant as
earlier all the accused were charged for the offence
punishable under Section 302 read with Section 149 of IPC
along with other allied offences. In spite of this at the end
of the trial, the trial Court came to the conclusion that
offence punishable under Section 302 of IPC has not been
established and the offence was diluted to Section 304 Part
II of IPC thus holding all the appellants/accused guilty of the
offence of culpable homicide not amounting to murder and
falling under clutches of Part II of Section 304 of IPC.
3. The case of the prosecution in nut-shell is as under : -
4. In the year 2004 there was an election to elect the
members of one Bhairavnath Vividh Karyakari Sahakari
Society at village Kolele, Taluka Panhala, District Kolhapur
( Hereinafter called as "Society" for the sake of brevity. In
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the said election, 16 candidates of the complainant party
i.e. party belonging to Vikas Rajaram Patil were elected.
The elected members contested the election under the
panel of Gadaidevi Vikas Aghadi. According to the
prosecution, appellants/accused Nos. 1, 2, 9, 11 and 13
had contested the said election through said Gadaidevi
Vikas Aghadi and apparently were the members of the
complainant party and they got elected. Thereafter,
accused No.9 was elected as the Chairman for the year
2004. Thereafter, in the year 2005 there was election of
Kolhapur District Central Co-operative Bank and
accordingly the Member was to be nominated to represent
the society for the election of said Bank. A meeting was
held on 16th October, 2005 and one Tanaji Dhavle was
nominated as the candidate of the complainant party. That
time accused No.1 had proposed the name of one Dinkar
Patil but said Patil was not nominated. On this count, there
was a rift in Ahgadi members. In the mean time, accused
No.2 was removed from the Directorship of Bhairavnath
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Society by order of Additional Registrar, Co-operative
Societies vide order dated 31st May, 2006. As such there
was animosity in the members of the said Society and
Aghadi and accused No.1 and his associates were having
grudge against the complainant Vikas PW No.5. It is also
the case of the prosecution that then elected Chairman in
the year 2004 i.e. accused No.9 had not held any general
meeting and as such on 17th July, 2006 a meeting was
proposed for fixing the date of general body to elect the
chairman and vice chairman of the society. Accordingly on
17th July,2006 at about 9:30 a.m. the complainant Vikas PW
No.5 and his friend Tanaji Dhavle PW No.6 were proceeding
towards the office of Bhairavnath Society and that time
they were accosted and obstructed by all the eighteen
accused at the door of Bhairvatnath society office.
Apparently, all the appellants accused had gathered there
in front of the office of the society in the chowk and all
were armed with sticks, iron rods and axe. When the
complainant PW No.5 and Tanaji PW No.6 reached near the
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door of the Society hall, they were manhandled and then
assaulted by all eighteen accused and assault was by
means of sticks, iron rods and axe. Apparently, the blunt
side of the axe was used to assault these witnesses.
According to the prosecution, initially accused No.1
Chandrakant Jadhav, accused No.2 Sarjerao Jadhav,
accused No.3 Prakash
Vijaykumar Jadhav and also accused No.5 Sambhaji Jadhav
rushed to the entrance door of the hall and they obstructed
PW Nos. 5 and 6 from entering and restrained them from
opening the door of the hall. There was some altercation
amongst these persons in which the complainant was
questioned why the name of Tanaji Dhavle i.e. PW No. 6
was decided as a member during the election of Kolhapur
District Central Cooperative Bank and why the name
suggested by accused No.1 was not accepted. The
altercation was also on account of the removal of accused
No.2 Sarjerao. On this the complainant indicated that such
grievances can be made in the meeting to be conducted
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and tried to enter the meeting hall. On this there was
manhandling of the complainant PW No.5 and his associate
PW No.6. Accused No.1 Chandrakant Jadhav inflicted blow
of iron rod on the head of the complainant Vikas Patil.
Accused No.5 Sambhaji Jadhav inflicted blow with iron rod
on the back of the complainant, so also accused No.6
Ashok Jadhav assaulted the complainant with the help of
stick. PW No.6 Tanaji Dhavle was also assaulted by the
accused persons in the mob and specifically accused Nos.
5,11,12 and 15 assaulted said PW No.6 with iron rod and
stick. Due to this assault there was a great commotion and
hearing the noise the complainant's father, his uncle and
his brother rushed to the spot. Other people also gathered.
The complainant's father Rajaram, his uncle Ananda (now
deceased) and his brother Prakash were also assaulted by
the accused persons when they tried to rescue the
complainant and PW No.6 Tanaji from the clutches of the
accused. Due to the said assault victim Ananda Patil
became unconscious and fell on the ground. All the
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appellants-accused ran away from the spot. In the said
commotion and assault, the complainant PW no.5, Tanaji
PW No.6, Prakash Patil PW No.7 and PW No.8 Bajirao and
also one Rajaram Patil, father of the complainant sustained
injuries. So also the victim Ananda Patil sustained severe
injuries on his head. All the injureds were taken in one jeep
to Adhar Nursing Home at Kolhapur. Except the victim
Ananda Patil, other injured persons were treated at OPD.
Ananda Patil was admitted in the hospital and CT scan was
done for the injuries he had sustained on his head. In the
afternoon of the same day, the complainant PW No.5
lodged his complaint and accordingly C.R.No.57 of 2006
was registered against all the appellants-accused for the
offence punishable under Sections 326, 324, 341, 323,
143,144, 147, 148 and 149 of IPC read with section 135 of
the Bombay Police Act. PSI Ghadge (PW No.14) conducted
the investigation in the matter. He visited the spot and
prepared spot panchnama. Initially, thirteen accused were
arrested. Statements of the witnesses were recorded,
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including the injured witnesses.
5. During the investigation, on 19 th July, 2006 the
appellant-accused No.5 allegedly made a voluntary
statement to produce the weapons used in the assault and
accordingly two iron rods, three sticks and an axe were
recovered at his instance from the cattle shed. Also,
according to the case of the prosecution, accused No.10
Sagar Kadam made a voluntary statement and
subsequently at his instance two iron rods, two sticks and
one axe were recovered from the mezzanine floor from his
house. All the said articles were seized under the
panchnama. Some accused were put under arrest on 21 st
July, 2006. Statement of injured Prakash Patil was recorded
and then Section 307 of IPC was inserted in the matter.
While under treatment, victim Ananda Patil succumbed to
the head injuries and died on 22nd July, 2006 and as such
offence punishable under Section 302 of IPC was applied in
the present case. Supplementary statements of the
witnesses were recorded.
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6. On the death of Ananda Patil his dead body was sent
for postmortem after the inquest panchnama.
7. Also according to the prosecution case, during the
relevant period of the incident a prohibitory order under
Section 37 (1) of the Bombay Police Act was in force and as
such offence punishable under Section 135 of the Bombay
Police Act was also applied in the matter.
8. After obtaining CA reports and on completion of
investigation, a charge-sheet was filed before the Judicial
Magistrate, First Class, Kolhapur and the case was
committed to the Court of Session and during trial total 14
prosecution witnesses were examined and one defence
witness was examined on behalf of the appellants-accused
and considering the evidence led before the Court by the
prosecution not sufficient to establish the offence
punishable under Section 302 read with Section 149 of IPC
but sufficient to bring down the case for the offence
punishable under Section 304 Part II of the IPC, all the
appellants-accused were convicted for the said offence.
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They were also convicted for the other allied offences as
mentioned in the impugned judgment and order. As
mentioned earlier the conviction of all the appellants-
accused is challenged in the Criminal Appeal No.433 of
2010 and the State had preferred two appeals as
mentioned above, one for enhancement of the sentence for
the offence under Section 304 Part II, read with section 149
of IPC and another one to challenge the order of acquittal
of all the accused for the offence punishable under Section
135 of the Bombay Police Act.
9. The salient features of the present case are
required to be narrated hereunder in order to have proper
perspective of the matter and to ascertain whether the
substantive evidence of the prosecution witnesses is
sufficient to hold them guilty for the respective offences for
which they had been convicted.
10. Total 14 prosecution witnesses are examined. PW
No.1 Vikram Kamble is pancha regarding the spot
panchnama. PW No.2 Hindurao Shewale is regarding
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recovery of the weapons at the instance of accused No.5
Sambhaji and accused No.10 Sagar Kadam. PW No.3 is a
pancha regarding seizure of the clothes of the injured
witnesses Vikas Patil PW No.5 and Ananda Patil (victim). PW
No.5 Vikas Patil is a complainant - injured eye-witness. PW
No.6 Tanaji Dhawale is injured witness. PW No.7 Prakash
Patil is also injured eye-witness and PW No.8 Bajirao is also
injured eye-witness. PW No.9 Bapu Gavaku is a retired
Police Head Constable. PW No.10 Eknath Maruti Kalantre is
a Police Constable who registered the FIR at Panhala Police
Station. PW No.11 Dr Sanjay Ram Deshpande is a Medical
Practitioner, Kolhapur who treated the victim i.e. Ananda
Patil when he was initially admitted in the hospital. PW
No.12 is Dr Shailendra Navare who examined five injured
i.e. PW Nos. 5, 6, 7 and 8 and one Rajaram. At this
juncture, it must be mentioned that said injured eye
witness Rajaram, father of the complainant, was not
examined by the prosecution. PW No.13 is Dr Shankar
Dekhankar who conducted the postmortem on the
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deceased Ananda Patil. Last prosecution witness is PW
No.14, Investigating Officer, Sanjay Ghadge. One defence
witness Shivaji Kadam, Police Head Constable, from Juna
Rajwada Police Station is examined on behalf of the
appellants-accused. The effect of the substantive evidence
is discussed hereinafter at the appropriate place.
11. As such, out of 14 prosecution witnesses, the
important witnesses are only PW No.5 Vikas Patil, P.W.No.6
Tanaji Dhavale, PW No.7 Prakash Patil and PW No.8 Bajirao
i.e. injured witnesses and the Medical Officers PW Nos.
11,12 and 13. The substantive evidence of these witnesses
was critically discussed by learned Senior Counsel Shri
Mundargi while arguing on behalf of the appellants-
accused. The main points of the arguments on behalf of the
appellants-accused are such;
Firstly, that there was only a commotion on
the relevant day and time at the entrance door
of the meeting hall and the object of the mob
gathered there was to see that no meeting take
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place and for that purpose there was only the
obstruction to PW No.5 and 6 from entering the
meeting hall.
Secondly, in the said commotion and initial
obstruction of PW Nos. 5 and 6 when they
insisted to enter the meeting hall there was
rather manhandling of them by the persons in
the mob and there were no major injuries
caused to anybody
ig even including the
deceased Ananda Patil.
Thirdly, that according to the alleged eye-
witnesses four accused persons gave blows of
iron rod, stick and axe on the head of Ananda
Patil. The medical evidence negate the said
theory inasmuch as there was no external
injury found on the head of the victim and this
fact is fortified by the findings in the
postmortem report.
Fourthly, all the alleged eye-witnesses are
closely related to each other and curiously
enough PW Nos. 7 and 8 and the victim Ananda
Patil had no occasion to reach meeting hall in
that morning and as such they apparently are
got up witnesses.
Lastly, there are no independent witnesses
examined by the prosecution though the
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incident of commotion and assault occurred on
the broad day light on 17th July,2006 . It is
further submitted that so far as accused No. 7,
14 and 16 are concerned there is no overt act
attributed to them by any of the alleged eye-
witnesses and as such they cannot be
convicted for offence under section 304 Part II
of IPC and other allied offences.
12.
Apart from the above arguments, it is also strongly
submitted on behalf of the appellants-accused that if at all
for the sake of arguments it is accepted that the accused
persons were present on the spot, their main object was
not to cause any bodily injury, much less grave and fatal
injury to anybody. At the most, it can be construed that
they had gathered near the meeting hall with a design that
the meeting should not take place, further argued. It is
also strongly submitted that at the most there was a
design to restrain PW No 5 Vikas Patil and PW No.6 Tanaji
Dhavale from entering the meeting hall but unfortunately
the said incident turned in commotion resulting minor
assault on the injured and the victim. At any rate, it is
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further argued, there was nothing like committing a
murder of victim Ananda Patil, so also there was nothing
like causing a culpable homicide not amounting to murder
as erroneously held by the trial Court. It is submitted that
at the most if considering the substantive evidence of
allegedly four eye-witnesses it is accepted that the
accused persons were involved in the matter and had
assaulted the victim and other alleged eye-witnesses then
at the most only the offences punishable under Section
324 read with Section 149 of IPC may be attracted.
13. Bearing in mind the above arguments advanced on
behalf of the appellants-accused, we have carefully
perused the substantive evidence of the prosecution
witnesses and mainly of PW No.5 and other injured
witnesses PW Nos. 6,7 and 8. A sort of summary of their
substantive evidence can be given as under;
14. According to PW No.5, he was assaulted by
Accused No.1 on his head by means of rod, accused No.6
assaulted on his back by a stick and by accused No.5 on
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his back by iron rod. As such similar such substantive
evidence is given by PW No.6 regarding said individual
accused assaulting PW No.5. Moreover, even PW Nos. 6
and 7 had given the similar substantive evidence as to
assault on PW No.5 by accused Nos. 1, 5 and 6.
15. Again, according to PW No.5 accused Nos. 5, 12
and 15 assaulted PW No.6 Tanaji by means of iron rod and
stick. Similar such is the evidence of PW No.6 as to assault
on himself by these accused. Moreover, PW No.7 also
mentioned regarding assault on PW No.6 by accused Nos.
12 and 15.
16. Again PW No.5 complainant mentions regarding
assault on the victim Ananda Patil by accused No. 1, 3, 4
and 11. According to him, accused Nos. 1 and 3 used iron
rod, accused No.4 used blunt side of the axe and accused
No.11 used stick to assault the victim Ananda Patil on his
head. Similar such evidence is given by PW No.6, PW No.7
and PW No.8.
17. When the substantive evidence of these
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witnesses is scrutinized and even certain omissions on the
aspect as to the assault on the other eye-witnesses are
considered, it must be said that all these witnesses
categorically mentioned regarding assault on the victim
Ananda Patil by accused Nos. 1, 3, 4 and 11 on his head.
This consistency in the substantive evidence of these
prosecution witnesses i.e. PW Nos. 5 to 8 is vital and
required to be accepted regarding assault on the head of
the victim Ananda Patil. At this juncture, it must also be
mentioned that so far as the assault on the victim is
concerned, these witnesses are not taking names of any
other accused. Thus, this negate the arguments advanced
on behalf of the appellants-accused that the prosecution
witnesses are falsely taking the names of the accused
persons as the assailants. Had it been a concoction and
preplanned design to implicate all eighteen accused so far
as the assault on the victim Ananda Patil is concerned,
there was apparently no impediment for these witnesses
to take the names of other accused apart from accused
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Nos. 1, 3 , 4 and 11. In any event, considering the
substantive evidence of the eye-witnesses definitely the
involvement of the appellants-accused Nos. 1, 3, 4 and 11
is established so far as assault on the victim Ananda Patil
is concerned. Again on this aspect the argument advanced
on behalf of the appellants, as to no visible external injury
seen by the doctors on the head of Ananda Patil, is
required to be discussed. On this aspect, the substantive
evidence of attending doctor PW No.11 Dr Sanjay
Deshpande is of significance. According to him, on the day
of the incident at about 11:40 a.m. the patient Ananda
Patil was brought to the hospital at Adhar Nursing Home
where he was working as a Medical Practitioner. He was
the patient in the OPD and then shifted to intensive care
unit (ICU) as he was unconscious. Some treatment was
given to the patient and then he was referred to CT scan.
The substantive evidence of this doctor is important which
reads thus :
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"C.T. Scan shows multiple skull fracture,
nasal bone fracture, soft tissue swelling and
bilateral fronto parital subdural haemotoma
with cerebral haemorrhage. Neuro Surgeon
was called in the hospital. He advised
immediate surgery for drainage of
haemotoma. On the same evening he was
operated by Dr Virendra Pawar, the Neuro
Surgeon. Thereafter, the patient was shifted
to ICU. He was given artificial ventilation.
On 19th July, 2006 patient developed hypo
tension. In spite of such treatment patient
died on 22nd July, 2006 at about 3:00 a.m.
Because of the injuries referred to above
the patient died."
18. This medical witness PW No.11 had produced the
original case papers regarding the treatment given to the
victim Ananda Patil. According to him, the injuries noticed
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by him on the victim were caused by multiple blows by
hard and blunt object and age of the injury was within six
hours when he examined the patient and according to him
injuries were possible by iron rod, stick, blunt side of axe
like muddemal shown to him. During cross-examination of
this witness, it is brought on record that he was not
present when the patient was operated by Neuro Surgeon.
Though on various aspects this witness was cross-
examined as to how much blood was drained and whether
any other method for drainage of the blood from the site of
heomotoma of brain could have been adopted by the
Surgeon, the main effect of the evidence of this witness
still remains that there was a severe internal injury on the
head of the victim Ananda Patil and subsequently he
succumbed to the injuries.
19. Again, on the above aspect as to injury on the
victim Ananda Patil on his head, it is brought to our notice
that as per the postmortem which was conducted by PW
No.13 Dr Shankar Dekhankar, he had seen only three
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surgical wounds externally. There were no other external
injuries observed by him. The substantive evidence of this
doctor PW No.13 reads thus;
"From 2002 to 2006 I was attached to
CPR Hospital as medical officer. I have
carried out 2 to 3 thousand postmortem
examinations. On 22.7.2006 I carried out
postmortem examination on the dead body
of one Ananda Patil, resident of Kololi. On
his examination I noticed the following
external injuries;
(1) Surgical wound on left side of head
stitches.
(2) Surgical wound on right side
temporal area, 19 cms and having 18
stitches.
(3) Surgical wound perpendicular to
injury No.2 having length 5 cms and 5
stitches. All above injuries were
antemortem.
On internal examination of head, I
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noticed multiple depressed fracture of nasal
bone, left parietal bone, left side of frontal
bone extra dural, subdural and infra
cerebral haemorrhage present defused
below fractured area.
The above internal injuries were
corresponding to the external injuries
stated above. The injuries noticed by me
are sufficient in the ordinary course of
nature to cause the death of a person. The
injuries are possible by blunt object like
stick, iron rod, or blunt side of axe. In my
opinion, the probable cause of death was
fracture of skull and cerebral haemorrhage
caused by hard and blunt object.
Accordingly, I have prepared postmortem
report. I am now shown postmortem report.
It bears my signature. Contents are true
and correct. It is at Exh.154(4)."
20. During the cross-examination of this witness, it is
brought on record that except three surgical wounds
described in column No.17 of the postmortem, he had not
noticed any other external injury. Much capital is made of
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this answer given by the Medical Officer and it was
strongly submitted on behalf of the appellants-accused
that if this medical evidence is accepted then the
substantive evidence of alleged eye-witnesses PW Nos. 5
to 8 is doubtful as according to them at least four accused
persons had assaulted Ananda Patil on his head by means
of iron rod, sticks and blunt side of the axe. Though these
witnesses have mentioned so as to assault on head, it
must be construed that it was assault by the named
accused persons when there was great commotion and
gathering of a mob of other accused persons, totally 18 in
numbers. It cannot be construed that each and every blow
must have hit the victim on his head and that also with
such a force to cause external injury. Still considering the
medical evidence in our considered view the eye-witnesses
cannot be disbelieved as to the role assigned to the named
accused persons i.e. accused Nos. 1, 3, 4 and 11. More so
when as per evidence of PW No.13 he observed that
internal injuries were corresponding to external injuries. In
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that event, definitely there was involvement of these four
persons in assaulting the victim. Though initially main
charge against the main appellants accused was for
offence punishable under Section 302 read with section
149 of IPC, it was brought down to section 304 Part II of IPC
by the Sessions Court and rightly so in our view. This is
more so, considering the act done by the accused persons
in a sudden fight and there was no motive to cause murder
of Ananda Patil who happened to be there on the spot on
hearing the commotion and tried to rescue PW Nos. 5 and
6 from the clutches of the accused persons. Again on this
aspect of accepting the commission of offence punishable
under Section 304 Part II of IPC, it is again to be construed
whether all the other accused can be taken in the purview
of the said offence by taking shelter of Section 149 of IPC.
On this learned counsel for the appellants strongly
submitted that there was no common object of all 18
accused persons to do away with the victim Ananda Patil.
Moreover, no any overt act is attributed to the other
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accused persons, other than the accused Nos. 1, 3, 4 and
11 so far as the assault on the victim Ananda Patil is
concerned. In that view of the matter, as argued on behalf
of the appellants, recourse to section 149 of IPC cannot be
taken to rope all the other accused persons along with
other accused Nos. 1, 3, 4 and 11. In that event it must be
held that the appellant accused Nos. 1, 3, 4 and 11 are
individually liable for the punishment for the offence
punishable under Section 304 Part II of IPC and benefit of
doubt is required to be given in favour of other accused so
far as the offence punishable under Section 304 Part II of
IPC is concerned.
21. Now coming to the offence punishable under
Section 326 read with Section 149 of IPC for which all the
appellants-accused were convicted, the injuries sustained
by injured eye-witnesses are required to be construed. The
medical certificates showing the injuries sustained by
these eye-witnesses are on record and as per their
contents a following is the summary so far as injuries to
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the individual eye-witnesses.
PW No.5 Vikas Rajaram Patil :-
Head injury. CLW over scalp - occipital
region - (2x1x1)
cause : alleged assault. Caused by hard
and blunt object.
PW No.6 : Tanaji Shankar Dhavale
Head injury. CLW over forehead (left) side
(3x1x1 cm)
CLW over (right) index finger (1x1 cm.)
Blunt trauma (right)forearm.
Age of injury within six hours.
Caused by alleged assault.
Hard and blunt object.
Nature : fracture ulna lower 1/3 (right).
PW No.7:- Prakash Rajaram Patil.
Injury: Head injury with fracture proximal
phalanx of (right) thumb.
(1) CLW over occipital region (5x1x1 cm.)
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(2) CLW over (right) index finger (4x1 x 1 cm.)
(3) Blunt trauma (right) thumb.
(4) (right) shoulder blunt trauma.
Age of injury: within six hours.
Cause : Hard and blunt object/alleged assault.
Nature : Fracture proximal phalanx grievous.
PW No.8:-Tanajki Ananda Patil.
Injury: Head injury.
CLW over occipital region (2 x 1 x 1 )
Blunt trauma (right) shoulder arm.
Age of injury : within six hours.
Cause : Alleged assault.
Hard and blunt object.
22. Considering the nature of injuries sustained by the
eye- witnesses as detailed above and considering the
substantive evidence of the doctor PW No.12 Dr Shailendra
Navare who examined these witnesses, it is reasonably
accepted that there were fractures to some of these
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witnesses i.e. PW Nos. 6 and 7 though it is brought to our
notice that no x-ray plates were produced by the
prosecution during the trial of the Sessions Case. This in
itself will not negate the effect of the substantive evidence
of the Medical Officer and the contents of the Medical
certificates which are already exhibited and proved by the
doctor. Mere absence of production of the x-ray report
cannot lead us to come to the conclusion that injuries
sustained by PW Nos. 6 and 7 were not grievous. Int hat
event the arguments advanced on behalf of the appellants
as to non establishment of the charge punishable under
Section 326 read with section 149 of IPC cannot be
accepted. At this stage, we have not lost sight of the fact
that while discussing the establishment of the offence
punishable under Section 304 Part II of IPC, we have not
held other accused, than accused Nos. 1, 3, 4 and 11,
guilty of the said offence and at that stage we had not
accepted the case of the prosecution as to application of
section 149 of IPC but so far as offence punishable under
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Section 326 of IPC is concerned though the said two
distinct offences were out of the same transaction, the
gravity of the offences is different. In other words, as
argued on behalf of the prosecution that there might not
be common object to kill the victim or to cause culpable
homicide not amounting to murder but still must be
common object to cause injury to the eye witnesses and
hence as mentioned above it must be held that the offence
punishable under section 326 read with section 149 of IPC
is established against all the accused persons. This is more
so looking to the definition of Section 304 Part II of IPC
requiring 'knowledge' to the assailant as to his act would
cause death of the victim. In our considered view, such
'knowledge' could only be attributed to the accused who
actually inflicted blows on the head of the victim.
23. So far as the appeal of the State for enhancement
of the punishment for the offence punishable under
Section 304 Part II of IPC, we are not inclined to agree with
the arguments advanced on behalf of the State that the
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maximum punishment contemplated by the said Section is
required to be imposed. On this aspect, we have carefully
considered the circumstances under which the entire
incident occurred. As we have already held that the object
of the unlawful assembly was to restrain PW Nos. 5 and 6
from entering meeting hall and in that process there was
assault on the victim Ananda Patil and other witnesses. In
our considered view, the imprisonment of five years
imposed by the trial Court would serve the purpose and
the circumstances do not warrant enhancement of the said
punishment. Hence, there is no merit in the appeal for
enhancement being Appeal No.752 of 2010.
24. Lastly, coming to the appeal filed by the State
against the acquittal of appellants-accused for the offence
punishable under Section 135 of the Bombay Police Act, it
must be said that there is nothing brought on record by
the prosecution regarding prohibitory order, if any passed
by the appropriate Authority not to possess any arms
during the said relevant period of the said incident and as
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such there is no substance in the argument advanced on
behalf of the State on the aspect as to challenge to the
acquittal under Section 135 of the Bombay Police Act.
25. In view of above, in our considered view, all the
three appeals can be disposed of by the following order:
ORDER:
(1) CRIMINAL APPEAL NO.433 OF 2010:-
(i) Criminal Appeal No.433 of 2010 is
partly allowed;
(ii) Appellant Nos. 1, 3, 4 and 11 are held
guilty of the offence punishable under Section
304 Part II of the IPC individually committed by
them and substantive sentence awarded for the
said offence of five years imprisonment
sentence shall sustain.
to 18 are acquitted of the offence under section
304 Part II of IPC read with section 149 of IPC
and the substantive sentence imposed on
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this count on them is quashed and set
aside.
(iv) The conviction and sentence of all the
appellants - accused for the offence
punishable under Section 326 read with Section
149 of IPC shall sustain.
(v) Criminal Appeal Nos.752 of 2010 and
832 of 2010 preferred by the State shall
stand dismissed.
All the three appeals are disposed of in terms of
above order.
( A.R. JOSHI, J) (SMT. V.K. TAHILRAMANI,J)
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