Bombay High Court
Sujit Haribhau Patil And Ors vs The State Of Maharashtra on 25 July, 2016
Bench: V.K. Tahilramani
appeal 667-13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 667 OF 2013
1. Sujit Haribhau Patil
aged 25 years, Occ: Agriculturist
2. Tukaram Rama Patil,
Aged about 50 years,
Occ: Agriculturist
3. Kashinath Rama Patil,
Aged about 48 years,
Occ: Agriculturist
4. Vilas Shravan Patil,
Aged about 32 years,
Occ: Agriculturist
All res. at Village Patnoli,
Taluka Panvel,
District Raigad
at present undergoing sentence
at Taloja Central Prison,
Taloja. .. Appellants
(Org. Accd. Nos.1, 6, 8 and 10)
v/s.
The State of Maharashtra
(at the instance of Sr.Inspector of Police
Panvel Town Police Stn.,
vide C.R.No.I-275 of 2009). ..Respondents.
Mr.Shashank Manohar i/b. Mr.Nitin Sejpal & Mrs. Pooja Sejpal for
the Appellants
Mr.S.K.Shinde, PP for the State.
WITH
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CRIMINAL APPEAL NO. 668 OF 2013
1. Ganesh @ Yogesh Kashinath Patil
Aged about 23 years,
Occ: Agriculturist
2. Haribhau Rama Patil
Aged about 40 years,
Occ: Agriculturist
3. Suhas Shravan patil,
Aged about 21 years,
Occ: Agriculturist,
All res. at Village Patnoli,
Taluka Panvel,
District Raigad
at present undergoing sentence
at Taloja Central Prison,
Taloja. .. Appellants
(Org. Accd. Nos.2, 5 and 7
v/s.
The State of Maharashtra
(at the instance of Sr.Inspector of Police
Panvel Town Police Stn.,
vide C.R.No.I-275 of 2009). ..Respondents
Mr.Shirish Gupte, Sr. Advocate i/b. Mr.Nitin Sejpal &
Mrs. Pooja Sejpal for the Appellants.
Mr.S.K.Shinde, PP for the State.
WITH
CRIMINAL APPEAL NO. 1330 OF 2013
The State of Maharashtra
(At the instance of Panvel
Town Police Stn, C.R.1-275/09
District Raigad .. Appellant
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v/s.
1. Sujit s/o. Haribhau Patil
Age 25 years, Occ: Agriculture
2. Ganesh @ Yogesh s/o.Kashinath Patil
Age 23 years, Occ: Agriculture
3. Sandeep s/o. Kashinath Patil
Age 19 years, Occ: Agriculture
4. Sagar s/o. Tukaram Patil
Age 19 years, Occ: Agriculture
5. Haribhau s/o. Rama Patil,
Age 40 years, Occ: Agricluture
6. Tukaram s/o. Rama Patil
Age 50 years, Occ: Agriculture
7. Suhas s/o. Shravan Patil
Age 21 years, Occ: Agriculture
8. Kashinath s/o. Rama Patil
Age 48 years, Occ: Agriculture
9. Shravan s/o. Rama Patil
Age 52 years, Occ: Agriculture
10. Vilas s/o. Shravan Patil
Age 32 years, Occ: Agriculture
11. Alpesh s/o. Haribhau Patil
Age 19 years, Occ: Agriculture
12. Samadhan S/o. Tukaram Patil
Age 28 years, Occ: Service
All resident of Village Patnoli,
Taluka Panvel, Dist Raigad ..Respondents
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WITH
CRIMINAL APPEAL NO. 1141 OF 2013
Deepak Parshuram Patil
Age 40 years, Occ: Service
Res. of Village Patnoli,
Taluka Panvel,
District Raigad .. Appellant
v/s.
1. Sujit s/o. Haribhau Patil
Age 25 years, Occ: Agriculture
2. Ganesh @ Yogesh s/o.Kashinath Patil
Age 23 years, Occ: Agriculture
3. Sandeep s/o. Kashinath Patil
Age 19 years, Occ: Agriculture
4. Sagar s/o. Tukaram Patil
Age 19 years, Occ: Agriculture
5. Haribhau s/o. Rama Patil,
Age 40 years, Occ: Agricluture
6. Tukaram s/o. Rama Patil
Age 50 years, Occ: Agriculture
7. Suhas s/o. Shravan Patil
Age 21 years, Occ: Agriculture
8. Kashinath s/o. Rama Patil
Age 48 years, Occ: Agriculture
9. Shravan s/o. Rama Patil
Age 52 years, Occ: Agriculture
10. Vilas s/o. Shravan Patil
Age 32 years, Occ: Agriculture
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11. Alpesh s/o. Haribhau Patil
Age 19 years, Occ: Agriculture
12. Samadhan S/o. Tukaram Patil
Age 28 years, Occ: Service
All resident of Village Patnoli,
Taluka Panvel, Dist Raigad ..Respondents
WITH
CRIMINAL APPEAL NO. 82 OF 2014
The State of Maharashtra
(At the instance of Panvel
Town Police Stn, C.R.1-275/09
District Raigad .. Appellant
v/s.
1. Sandeep s/o. Kashinath Patil
Age 19 years, Occ: Agriculture
2. Sagar s/o. Tukaram Patil
Age 19 years, Occ: Agriculture
3. Alpesh s/o. Haribhau Patil
Age 19 years, Occ: Agriculture
4. Samadhan S/o. Tukaram Patil
Age 28 years, Occ: Service
All resident of Village Patnoli,
Taluka Panvel, Dist Raigad ..Respondents
Mr. Sandeep Shinde, APP for the State- Appellant.
Mr.Nitn Sejpal & Mrs. Pooja Sejpal for the Respondents.
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CORAM : SMT. V.K.TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
RESERVED ON : APRIL 11, 2016
PROUNOUNCED ON : JULY 25, 2016.
JUDGMENT (PER ANUJA PRABHUDESSAI, J.) :
1. These appeals arise from the judgment and order dated
10.5.2013 passed by the learned Addl. Sessions Judge-1, Raigad,
District Alibag, in Sessions Case No.134 of 2009. The accused
were tried for the offences under Sections 302, 307, 326, 325, 324,
504, 143, 144, 147, 148 and 149 of the IPC and under section
37(1), 135 of the Bombay Police Act and under sections 4 and 25
of the Indian Arms Act.
2. By the impugned judgment and order the learned trial Judge
has held the accused nos.1, 2, 5, 6, 7, 8 and 10 guilty of offences
under Sections 143, 144, 147, 148, 302 r/w. 149 of the Indian
Penal Code. They have been sentenced to undergo imprisonment
for six months in respect of offence under Section 143 IPC,
imprisonment for one year each in respect of offence under
Section 144, 147 and 148 of IPC and life imprisonment and fine of
Rs.2000/- , i.d. one year imprisonment for offence under Section
302 r/w. 149 of IPC. The accused no.7 is also held guilty of
offence under Section 307 r/w. 149 of IPC and has been sentenced
to undergo life imprisonment.
3. The accused nos.1, 6, 8 and 10 have challenged their
conviction and sentence in criminal appeal No.667 of 2013
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whereas accused nos.2, 5 and 7 have challenged the conviction
and sentence by filing criminal appeal no.668 of 2013.
4. The learned Judge has held accused nos.3, 4, 11 and 12
guilty of offence under Section 324 of the IPC and has released
them on executing a bond of good behavior for a period of three
years with surety of Rs.15,000/- each.
5. The State has filed an appeal being Appeal No.82 of 2014 for
enhancement of sentence imposed against accused nos.3, 4, 11
and 12.
6. The learned Judge has acquitted accused nos.9 of all the
offences and the other accused are acquitted of the offences under
Sections 325 and 326 r/w. 149 and 504 of IPC and 37(1)(3)(135) of
the Bombay Police Act.
7. The State has filed Criminal Appeal No.1330 of 2013 and the
first informant Deepak Patil has filed Criminal Appeal No.1141 of
2013 challenging the acquittal of the accused in respect of the
offences other than those for which they have been acquitted.
8. The case of the prosecution in brief is that on 5.7.2009 at
about 11.30 a.m the complainant Deepak Patil and his brothers
Anil Patil and Manohar Patil were returning to village Patnoli from
Panvel by their Safari Vehicle No.MH 43 V 1700. When they
reached near the school ground at Patnoli, they saw Haribhau (A-
5), Tukaram (A-6), Kashinath (A-8) and Shravan (A-9) sitting by the
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side of the road. Their children and some other boys from the
village were playing cricket on the ground. It is alleged that on
seeing the complainant, Sujit (accused no.1) spat and abused him.
The complainant got down from the vehicle and questioned the
accused no.1, at which time the other accused who were sitting by
the side of the road rushed towards the complainant and his
brothers. They were also joined by others who had come to the
spot armed with weapons such as sticks, iron rod, bat, hockey
sticks, sword etc. On seeing this, the brothers of the complainant
Prakash, Kishore, Deepak and Pravin- the brothers of the
complainant Vilas also came to the place of the incident.
ig It is
alleged that the accused no.1 gave a blow of sword on the head of
Anil (the deceased) while the other accused gave blows by hockey
sticks, rod etc on his head. The accused also assaulted the
complainant-Deepak and his brothers and thereafter fled away
from the place of the incident. Mahadeo Patil took the injured to
Gandhi hospital. They were examined by PW28 Dr. Bhushan
Jain. The witnesses had sustained following injuries:
1. Deepak Parshuram Patil
1) Monteggia Fracture dislocation left forearm
2) Fracture distal phalnyx right thumb
3) CLW over left frontal area of size 2 x 05. x 0.5 cm
4) CLW over left parietal area, having size 5 x 0.5 x 0.5 cms
5) CLW on mid parietal having size 5 x 1 x 1 cm
6) Contusion of right forearm having size 6 x 4 cm
7) Contusion on left thigh having size 7 x 4 cm
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2. Prakash Parshuram Patil
1) Contusion over back of neck, size 5 x 2 cm
2) CLW on left supra orbital area, sized 3 x 1 x 1 cm
3) CLW over left infra orbital area, size 2 x 1 x 1 cm
4) Contusion over left middle finger 2 x 2 cm
5) Contusion over the dorsum of left hand 3 cm
3. Kishor Parshuram Patil.
1) Fracture proximal ulna on left forearm
2) Haematoma over occipital area , size 4 x 3 cm
Pratap Vithoba Patil
1) Abrasion over the left forearm area 3 x 2 cm
2) Contusion over left forearm size 5 x 3 cm
3) Abrasion on the dorsum of left wrist, sized 1 x 1 cm
4) Contusion over left frontal area size 4 x 3 cm
5) Contusion on the left hand of size 3 x 3 cm
6) Contusion over the left shoulder, size 6 x 4 cm
5, Dayanand Parshuram Patil
1) Fracture left ulna on the proximal 1/3rd area
2) CLW over the right tempora parietal area , size 6 x 1
x 1 cm
3) CLW over left occipital area size 4 x 1 x 1 cm
6. Praveen Parshuram Patil.
1) Nasal bleeding through both the nostrils
2) Left black eye
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3) Contusion on left shoulder, size 8 x 6 cm
4) Contusion over upper dorsal area size 7 x 4 cm
5) Extra axial haemorrhage with pneumocephalus on
the left frontal area
6) Fracture frontal bone, involving roof of the left orbit.
7) Haemosinous left maxillary and Ethmoidal.
7. Manohar Parshuram Patil
1) Extra axial hemorrhage on left parietal region with
effacement of basal cistern and cortical sulci with
cerebral edema with midline shift to right side.
2) Fracture right zygomatic arch and lateral wall of right
orbit.
3) Right black eye
4) Haematoma on right parietal area size 4 x 4 cm.
9. PW29 PSI Prakash Patil, PSO attached to Panvel City
Police Station learnt about the incident and visited the hospital. He
recorded the FIR at Exh.59 lodged by Deepak Patil and registered
Crime No.275 of 2009 under Sections 307, 143, 144, 147, 148 and
149 of the IPC r/w. section 37(1)135 of the Mumbai Police Act.
10. FIR No 275/2009 was initially investigated by PW29-PSI
Prakash Patil. He conducted the scene of offence panchanama
and arrested the accused and seized the clothes of the injured
persons under panchanamas drawn in presence of Ravindra Ram
Patil and Hausaram Shankar Patil. On 6.7.2009 PW30 Vijay
Kadmane, PSI, took over further investigation of the said crime.
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The injured, Anil expired on 08.07.2009. He conducted the inquest
panchanama over the body of deceased Anil and referred the body
for post-mortem.
11. PW28 Dr. Bhushan Jain conducted the post-mortem over the
body of deceased Anil. The medical evidence reveals that the
deceased had following external and internal injuries :
External injuries:
1) A sutured semi circular surgical wound seen over
right franto parieto temporal region of length 33 cms (33
stitches) suture intact no oozing, no gaping.
ig Free ends
faceing anteriorly.
2) A sutured surgical wound seen over right of the
abdoment lateral to umbilicus of length 13 cm (13
stitches) sutured intact, no oozing, no gaping.
3) Evidence of treatment, two punctured wounds,
seen on right side of the neck, and one punctured wound
seen on left side of the neck, lower part anteriorly
reddish.
Internal injuries:-
(a) Hemorrhage under scalp seen over right frontal,
left temporal, bi-parietal region posteriorly and
occipital region of size 6x2 cms, 7x5 cms, 15x6 cms
and 8x7 cms respectively, dark reddish brownish.
(b) Skull showed craniotomy on right franto parieto
temporal bone of size 13x9 cms
(c) Linear fracture of left occipito temporal bone,
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upto middle cranial fossa of length 12 cms. In
filtration staining of blood seen at the fractured
margins. Thin extra dural Haematoma seen on left
occipito temporal region, 8x6x1 cms dark reddish,
brownish
PW28 opined that the injuries were antemortem and that
the death of Anil was due to 'head injury'.
12. In view of death of Anil, PW30 -PSI kadmane added Section
302 IPC and arrested the accused. In the course of investigation
he recovered the weapons of offence as per the disclosure
statements made by the accused. He forwarded all the
incriminating material to CSFL for examination and analysis. Upon
completion of investigation, he filed the charge sheet against the
aforesaid accused before the learned JMFC, Panvel. The case
being sessions triable, the same was committed to the Court of
Sessions at Raigad at Alibag, being Sessions Case No.134 of
2009.
13. Vilas Shrawan Patil (accused No.10) also lodged a report on
5.7.2009 alleging that on 5.7.2009, Sujit (accused No.1) and some
other boys were playing cricket while Haribhau (A-5), Tukaram (A-
6), Kashinath (A-8) and Shravan (A-9) were sitting by the side of
the road and watching the match. While the match was in
progress, one white colour Safari MH 43 V 1700 stopped on the
road by the side of the ground. The complainant Deepak and his
brother Anil got down from the vehicle and started abusing and
threatening them. The complainant Deepak and his brother
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thereafter, left the place, but by about 12.30 p.m. they returned to
the ground armed with sticks and assaulted and caused serious
injuries to them. Pursuant to the report lodged by accused No.10
lodged a report pursuant to which crime No.I-276/2009 came to be
registered against PW1-Deepak Patil, Praveen Patil, PW10-
Dayanand Patil, Kishore Patil, PW3-Prakash Patil, and Pradeep
Patil.
14. The accused in the present crime were examined by DW1
Dr. Bavraj Lohare, at Rural Hospital Panvel. The accused had
sustained following injuries :
1) Kashinath Rama Patil- Accused No.8
i) Contused lacerated wound over right side of forehead
8cm x bone deep.
2) Vilas Shrawan Patil - Accused No.10.
i) Contused lacerated wound over forehead 0.5 cm x
bone deep.
ii) Fracture left humerus lower end. Swelling plus
tenderness, abnormal mobility plus
3) Sandeep Kashinath Patil - Accused No.3.
i) Contused lacerated wound over left tempora-parietal
region. Size 10 cm x bone deep.
ii) Blunt trauma over right forearm, swelling.
4) Aplesh Haribhau Patil- Accused No.11.
i) Blunt trauma over right knee joint + swelling +
tenderness.
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15. Crime No.I-276 of 2009, which was registered pursuant to the
FIR lodged by the Vilas Patil (accused no.10), was investigated by
PSI Keshav Patil, and upon completion of the investigation,
chargesheet was filed against Deepak Patil and his brothers in
Crime No. I-276 of 2009 for offences under sections 323, 504, 143,
147, 148, 307 r/w. 149 IPC and under Section 37(1), 135 of
Bombay Police Act. This case was also committed to Sessions
Court, Raigad at Alibag and registered as Sessions Case No.59 of
2010.
16. The prosecution adduced evidence in both these cases. By
judgment dated 10th May, 2013 in Sessions Case no.134 of 2009
arising from Crime No.275 of 2009 which is the subject matter of
the present appeals, the learned trial Judge convicted and
sentenced the accused as stated above. By a separate judgment
of the same date, the lnd. Judge acquitted the accused in Sessions
Case No.59 of 2010 arising from C.R.No. 276 of 2009, which is the
subject matter of Criminal appeal No.32 of 2014 filed by the State.
The said appeal shall be dealt with separately for the sake of
convenience.
17. Learned Senior Counsels Shri Shashank Manohar, who is
representing the appellants in Criminal Appeal No.667 of 2013 and
Shri Shirish Gupte representing the accused in Criminal Appeal
No.668 of 2013 having taken us through the entire material relied
upon by the prosecution as well as the accused, contended that
the accused had not assembled on the play ground with a common
object to commit murder of the deceased-Anil. On the contrary,
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the evidence reveals that some of the accused persons were
playing cricket whereas others were watching the match. They
were not armed with weapons. They have submitted that the
complainant and his brothers including Anil had come to the
ground armed with weapons and assaulted the accused. The
learned senior counsels have submitted that material on record
amply proves that the prosecution witnesses were aggressors and
that the accused had acted only in exercise of right of private
defence. Relying upon the decision of the Apex Court in Darshan
Singh v/s State of Punjab & ors (2010)2 SCC (Cri) 1037, Lnd.
Sr. Counsel Shri Gupte contends that the accused could not have
been held guilty of offence punishable under section 302 IPC.
18. The learned senior counsel Shri. Shashank Manohar has
submitted that in the case of free fight, Section 149 of the IPC has
no application and that the liability of each of the accused has to
be proved independently. This proposition has been settled by the
Apex Court in i)Subramani & Ors. V. State of T.N. (2002) 7 SCC
210, ii) Ilam Singh & Ors. v. State of U.P. (1976) 4 SCC 355, iii)
Bachan Singh & Anr. v. State of Bihar (2008) 12 SCC 23, iv)
State of Haryana v. Chandvir (1996) 8 SCC 678, v)Bachan
Singh & ors. V. State of Punjab 1993 Supp (2) SCC 490 and vi)
Ananta Kathod Pawar & Ors. v. State of Maharashtra (1997) 11
SCC 564.
19. The learned senior counsels have submitted that the
prosecution has failed to prove the individual role of each of the
accused. They have further submitted that the accused had also
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sustained injuries in the same incident, which fact clearly indicates
that the complainant and the other prosecution witnesses were
armed with weapons. It is submitted that non-explanation of the
injuries sustained by the accused in the same incident is another
manifest defect in the prosecution case, and the same clearly
indicates that the prosecution has suppressed the true genesis of
the incident. Relience is placed on the decision of the Apex Court
in Lakshmi Singh v. State of Bihar AIR 1976 SCC 2263.
20. The learned senior counsel Shri Gupte has further submitted
that there is unexplained delay in recording the statements of the
witnesses, which casts a cloud of doubt on the testimony of the
prosecution witnesses. He has submitted that the injunction order
is operating in favour of the accused and that the accused had no
motive for committing the offence.
21. The learned Counsels for the accused have further submitted
that though the prosecution witnesses have claimed that the
accused no.1 had assaulted Anil with a sword, the medical reports
reveal that Anil was admitted in the hospital with history of assault
with a bat. It is further submitted that the witnesses have deposed
that the other accused had inflicted several blows of sticks,
stumps, rods etc on the head of Anil. Whereas the medical
evidence reveals that the deceased had sustained only one CLW
on the head. The lnd. Sr. Counsel therefore contends that the
ocular evidence is in variance with the medical evidence and that
this is a fundamental defect which discredits the entire case of the
prosecution. He has placed reliance on i) Kapildeo Mandal & Ors
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v., State of Bihar 2008 Cri.L.J. 730, ii) Gangabhavani v.
Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298, iii)
Mahadeo Kundalik Vaidya & Ors. v. State of Maharashtra 2001
Cri.L.J. 4306 and iv) Rajpal & Anr. v. State of Haryana (2007)
13 SCC 554.
22. The learned senior counsels Shri Shashank Manohar and
Shri Gupte have submitted that the deceased had sustained only
one injury which was allegedly caused by the blunt side of the
sword. They have submitted that the incident had occurred in a
spur of the moment, and the injury was caused in exercise of right
of self defence. They have submitted that the evidence read as a
whole would clearly indicate that the accused had no intention to
cause death of Anil and as such they cannot be held guilty of
offence 302 of the IPC and the case would at the most be covered
under section 304 part II of the IPC.
23. Per contra, Mr. Shinde, the learned PP has submitted that the
case of the prosecution is based on the evidence of the injured
witnesses. He has further submitted that the evidence of the
prosecution witnesses proves beyond reasonable doubt that the
accused herein were the aggressors and were involved in causing
death of Anil and causing grievous injuries to PW1, PW2, PW3
and PW10, The learned APP has further submitted that the ocular
evidence which is duly corroborated by the medical evidence
proves beyond reasonable doubt that the accused herein had
come armed with weapons and that they had assaulted Anil,
Deepak, Pratap, Prakash and Dayanand and thereby caused
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death of Anil and injuries to PW2 Pratap Patil, PW3 Prakash Patil
and PW10 Dayanand Patil.
24. The learned APP therefore submits that non explanation of
minor injuries suffered by the accused is not fatal to the case of the
prosecution. He has further submitted that whether it was a case
of a free fight or unlawful assembly has to be determined on the
basis of attending circumstances. He has submitted that the
injuries inflicted on Anil and the other injured prosecution witnesses
were far more serious as compared to be injuries sustained by the
accused. The nature and the number of injuries sustained by the
deceased and the other prosecution witnesses clearly indicate that
the accused were the aggressors. This being not a case of free
fight, the accused have been rightly convicted with the aid of
section 149 IPC. Learned PP Shri Shinde has submitted that the
prosecution had proved the guilt of the accused beyond all
reasonable doubt and that the sentence imposed on the accused
Nos. 3, 4, 11 and 12 is not in consonance with the gravity of the
offence. He has further submitted that the learned Magistrate has
also erred in acquitting accused No.9-Shravan Patil.
25. We have perused the records and considered the
submissions advanced by the learned senior counsels for the
accused and the learned APP for the State.
26. It is not in dispute that the complainant -(PW-1) Deepak Patil,
the deceased-Anil, the injured witnesses viz. PW2-Pratap Patil,
PW3-Prakash Patil, PW10-Dayanand Patil and the accused are
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closely related to each other and are the residents of JNPT Colony,
Uran. The relations between both these groups are strained in
view of the pendency of the civil litigation. The animosity between
both groups led to the incident of 5.7.2009, in which Anil, the
brother of PW1 lost his life. The prosecution case is that the
accused formed an unlawful assembly, armed with weapons and in
prosecution of the common object caused death of Anil. The case
of the prosecution rests mainly on the ocular evidence of PW1-
Deepak Patil, PW2- Pratap Patil, PW3- Prakash Patil, PW10-
Dayanand Patil, PW25-Praveen Patil and PW- 26 Janabai Katkari,
besides other circumstantial evidence.
27. The testimony of PW1 Deepak Patil indicates that on
5.7.2009 at about 9.15 am, he along with his brothers Manohar
and Anil had been to Panvel by their Safari Vehicle bearing No..
MH 43 V 1700. They returned to their village Patnoli at about
11.30 a.m. When they reached near the cricket ground, they saw
some boys playing cricket. Shravan Rama Patil (accused No.9),
Haribhau Rama Patil (accused No.5), Tukaram Rama Patil
(accused No.6) and Kashinath (accused No.8)were sitting by the
side of the road which is near the ground. He has deposed that he
slowed down the vehicle, as he had to negotiate a turn on a narrow
road leading to the village. On seeing him, Sujit (A1), who was on
the cricket ground, spat and started abusing him. He therefore
stopped his vehicle and went near Sujit (A1) and questioned him
about spitting and abusing. The accused no.1 continued abusing
him. In the meantime, the accused nos.5 Haribhau, Accused no.6
Tukaram, accused no.8 Kashinath and accused no.9 Shravan
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came towards them armed with weapons. He stated that the
accused Shravan was armed with a gun, Tukaram with an iron rod,
Haribau with a stick and Kashinath with a bat. Ganesh (A2),
Sandeep (A3), Sagar (A4), Suhas (A7), Vilas (A10), Alpesh (A 11)
and Samadhan (A12) also came from the village, armed with
hockey sticks, stumps, sticks, sword and lathi. All of them started
assaulting him and his brothers.
28. PW1-Deepak Patil has further stated that on hearing their
cries his brothers Prakash (PW3), Kishor, Dayanand (PW10) and
Praveen (PW25), came to the place of the incident. He has stated
that Alpesh (A11) had come armed with a sword. He handed over
the sword to Sujit (A1) and Sujit gave a blow of sword on the head
of Anil, Tukaram (A6) gave a blow of rod, Vilas(A10) gave a blow of
hockey stick and Haribhau (A5) gave a blow of stick on the head of
Anil. PW1-Deepak Patil deposed that when he rushed towards
Anil, accused No.10-Vilas gave a blow of hockey stick on his head.
He has further narrated that Suhas and Ganesh gave blows of
stump on the head of Anil. Anil fell on the ground and thereafter
Kashinath Patil sat on his chest and pressed his neck. At that time
Kashinath, Tukaram and Vilas were shouting to Kill Anil.
29. PW1-Deepak Patil has stated that (A3)-Sandeep Patil gave a
blow of stump on his head and hands, (A10) Vilas Patil gave a
blow of hockey stick on his leg, and Sagar Patil gave him blow with
lathi on his right hand. As a result he suffered injuries on his head,
hands and legs. He has deposed that the accused also assaulted
his brothers Manohar, Prakash, Dayanand, Kishor and Praveen
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and they suffered severe injuries. In the meantime his Uncle
Mahadeo and cousin Mohandas came to the spot, and on seeing
them, the accused ran away towards the village.
30. Mahadeo and Pratap took Anil Patil to Purohit hospital.
Since the doctor was not available, they were taken to Gandhi
hospital. Anil as well as the other injured persons were admitted in
the said hospital. The police came to the hospital and recorded the
complaint at Exh.59. He has stated that he later learnt from his
relatives that Anil was shifted to MGM Hospital at Vashi. Anil
expired on 8.7.2009 while undergoing treatment at MGM Hospital
at Vashi.
31. PW1 has admitted in his cross examination that the incident
took place on the ground which is at a distance of about 35 feet
away from the road. He has denied the suggestion that while
some of the accused were playing cricket, he and his brothers
came on the ground and threatened Vilas Patil (A10). He has
further denied that he and his brothers had assaulted the accused
with hockey sticks, wooden dandas etc. He has admitted that
Kashinath and Vilas had sustained injuries. He has denied the
suggestion that while they were assaulting Vilas Patil, the accused
who were playing cricket removed the stumps from the ground and
assaulted them with bat and stumps in exercise of their right of self
defence.
32. PW1-Deepak Patil has admitted in his cross examination that
he had not stated in the FIR dated 5.7.2009 that Shravan Patil had
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come with a gun. He has also admitted that he had not stated in
the FIR that after Anil fell on the ground, Kashinath sat on his chest
and pressed his neck, and further that Kashinath and Tukaram had
said "Kill Anya: Kill Anil".
33. He has further admitted that he had not stated in the FIR that
Kashinath (A8), Tukaram (A6) and Vilas (A10) had implored others
to kill Anil. He has also admitted that he had not stated in the FIR
that Ganesh @ Yogesh (A2) and Suhas (A7) had struck stumps on
the head of Anil. Though Deepak Patil-PW1 claimed that he had
narrated in the FIR that Tukaram (A6) had given a blow of rod and
Kashinath (A8) had given a blow of bat on the head of Anil, no
such statement is recorded in the FIR and these material
omissions have been elucidated in the cross-examination.
34. PW2 Pratap Patil, was the driver of the deceased-Anil. The
testimony of this witness indicates that on 5.7.2009 at about 9.15
a.m., he had taken Anil, Deepak and Manohar to Panvel. PW1
Deepak Patil drove the vehicle on the return journey. They
reached near the school ground at Patnoli at about 11.30 a.m. Sujit
(A1) and his father Haribhau and uncles Shravan, Tukaram and
Kashinath were standing on the road, while some boys were
playing cricket on the ground. Sujit (A1) spat and abused on
seeing them. On hearing the abusive words, Deepak (PW1), Anil
and Manohar got down from the vehicle to question Sujit. He has
deposed that Shravan (A9), Tukaram (A6), Haribhau (A5) and
Kashinath (A8) and Sujit (A1) came towards them. Sharvan was
armed with a gun, Tukaram was armed with an iron rod, Haribhau
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was armed with a stick and Kashinath was holding a bat. In the
meanwhile Alpesh (A11), Vilas (A10), Suhas (A7), Yogesh (A2),
Sandeep (A3), Sagar (A4) and Samadhan (A12) also came to the
place of incident armed with sticks, lathi, sword, hockey stick and
stumps. He has deposed that Alpesh (A11) handed over the
sword to Sujit (A1) and thereafter Sujit (A1) gave a blow of a sword
on the head of Anil, as a result Anil sustained bleeding head injury.
35. Manohar and Deepak-PW1 rushed towards Anil, at which
time Vilas (A10) gave a blow of hockey stick on the head of
Deepak-PW1. Sandeep Patil (A3) gave a blow of stump on the
left hand of Deepak-PW1, whereas Sagar gave a blow of lathi on
the right hand of Deepak-PW1. Ganesh @Yogesh (A2) and Suhas
(A7)also beat Manohar Patil by a stump. Vilas Patil (A10) gave a
blow by hockey stick on the head of Anil Patil. Tukaram Patil (A6)
gave a blow of rod, Ganesh @Yogesh (A2) gave a blow of stump
and Kashinath (A8) gave a blow of bat on the head of Anil. As a
result Anil collapsed and Kashinath (A8) sat on the chest of Anil
and pressed his neck. Kashinath (A8), Tukaram (A6) and Vilas
(A10) were shouting to kill Anil. Pratap Patil-PW2 further stated
that when he tried to intervene and save Anil, Alpesh (A11),
Ganesh @Yogesh (A2), Suhas (A7) and Sandeep (A3) assaulted
him with stumps. As a result he sustained injuries on his head,
shoulder, hand and palm. He has stated that Prakash (PW3),
Dayanand (PW10) and Kishore had also sustained injuries in the
said incident. He has stated that after the incident all the accused
ran away towards the village along with the weapons.
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36. Though PW2-Pratap Patil has claimed that he had stated to
the police that Kashinath (A8), Tukaram (A6), Haribhau (A5) and
Shravan (A9) had come to the place of the incident armed with
rod, stick, and gun no such statement is recorded in the statement
under section 161 of Cr.P.C. This material omission has been
brought on record in his cross-examination. Similarly, the fact that
Alpesh (A11), Vilas (A10), Suhas (A7), Sandeep (A3), Ganesh @
Yogesh (A2), Sagar (A4) and Samadhan (A12) had come to the
place of the incident armed with weapons such as sword, hockey
stick, stumps, sticks, lathi, etc. was not stated in the statement
under section 161 of Cr.P.C. and this omission is elicited in the
cross examination.
37. PW2 has denied the suggestion that PW1 Deepak and Anil
got down from the vehicle and started abusing Vilas(A10) and
threatened him. He has denied that thereafter they went to the
village and returned with weapons such as hockey sticks, lathis,
etc and assaulted the accused. He has also denied the suggestion
that the accused had assaulted them in their self-defence.
38. PW3 Prakash Patil and PW10 Dayanand Patil are the
brother's of deceased Anil. They have deposed that on 5.7.2009 at
about 10.45 am they were at the house of one Govardhan Katkar
at Adivasiwadi. At about 11.30 am they heard some noise near the
school ground. They saw their safari vehicle parked on the road.
They rushed towards the place of the incident and saw all the
accused armed with swords, stumps, hockey sticks, bats, sticks
etc. Their brothers Manohar, Deepak-PW1 and Anil and his driver
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Pratap-PW2 were also present at the place of the incident. Both
these witnesses have stated that the accused no.1 Sujit wielded a
blow of sword on the head of Anil.
39. PW3-Prakash Patil has narrated that Vilas (A10) gave a blow
of hockey stick, Haribhau (A5) gave a blows with stick, and
Tukaram (A6) gave a blow of rod whereas Kashinath (A8) gave a
blow of bat on the head of Anil. Ganesh @ Yogesh (A2) and
Suhas (A7) also assaulted Manohar with sumps on his head and
eye. PW3-Prakash Patil has further stated that Vilas (A10) gave a
blow of hockey stick on the head of PW1-Deepak Patil, Sandeep
(A3) hit PW-1 Deepak Patil with a stump on his left hand, and
Sagar (A4) gave a blow of lathi on the person of PW1-Deepak
Patil. He has deposed that he requested the accused not to
assault him. However, Tukaram (A6) gave a blow of rod on his
forehead, Ganesh @ Yogesh (A2) hit him with stump on his left
hand and neck, and Sandeep (A3) hit him with a stump on his
head, shoulders and hand. He has deposed that his brother
Kishore came to the place of the incident and that Yogesh @
Ganesh (A2) and Suhas (A7) assaulted him with stumps, and
Samadahan (A12) gave him a blow of stick.
40. PW3-Prakash Patil has deposed that he and his brothers
Manohar Patil, Anil Patil, PW1-Deepak Patil, Kishor Patil, PW-10
Dayanand Patil, PW-25 Pravin Patil as well as his driver PW2-
Pratap Patil were seriously injured in the said incident. Mahadeo
Patil (PW24) and Mohan Patil came to the place of the incident
and the accused fled away from the place of incident. Mahadev
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Patil and Mohan Patil shifted the injured to the hospital. This
witness had not stated in his statement under section 161 of
Cr.P.C. that Shravan (A9), Tukaram (A6), Haribhau (A5), Kashinath
(A8), Samadhan (A-12) and Sagar (A4) had come to the place of
the incident armed with sword, gun, hockey sticks, but stumps rods
sticks, lathi, etc. This omission has been brought on record in the
cross-examination and proved through the Investigating Officer.
41. PW10-Dayanand Patil has deposed that Suhas (A7) gave a
blow of stump on the head of Manohar, Vilas Patil gave a blow of
hockey stick on the head of Deepak. He has deposed that he and
his brothers PW-3 Prakash and Kishor tried to intervene, at this
time, Tukaram (A6) gave a blow of iron rod on the head of PW3-
Prakash. Suhas (A7) gave a blow of stump and Haribhau (A5)
gave a blow of stick on his head. Whereas Sandip Patil (A3) gave
a blow of stump on his head and leg. He has deposed that he had
sustained bleeding head injury. He has further deposed that when
Pratap (PW2) tried to lift Anil, Alpesh (A11) gave a blow of sword
on the head of Pratap (PW2). Ganesh @Yogesh (A2) and Suhas
(A7) also assaulted (PW2)-Pratap on his head with stumps.
42. PW10 has deposed that accused Shravan (A9) who was
armed with a gun had pointed out the gun at them. He has
deposed that he and his brothers Manohar, Anil, PW3-Prakash,
Kishor, PW1-Deepak and PW-25-Praveen as well as their driver
PW2-Pratap had sustained injuries in the said incident. In the
meanwhile, PW24- Mahadeo and Mohan came to the place of the
incident, and on seeing them the accused ran away from the place
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of the incident. Mahadeo shifted them to the hospital. He has
deposed that his brother Anil expired as a result of the injury
sustained in the said incident.
43. PW24-Mahadeo Patil has deposed that on the relevant date
at about 11.30 am while he was at his resident, some villagers told
him that Anil and his brothers were being assaulted. He rushed to
the school ground and saw that Anil was lying on the ground and
Manohar, PW3-Prakash, PW1-Deepak, PW10-Dayanand, Kishore
and PW25-Praveen were present at the place of the incident. He
has deposed that the accused were assaulting Anil and his
brothers. He has further stated that his nephew Mohandas also
came at the place of the incident, and thereafter all the accused
ran away towards the village with their weapons in their hands.
He has deposed that Anil had sustained head injury. He was
unconscious. Manohar was also lying at the place of the incident.
He shifted Anil and the other injured persons to Gandhi Hospital.
He has stated that Anil was later shifted to MGM Hospital. Anil
died on 08.07.2009 as a result of the injuries sustained in the said
incident.
44. PW25 Pravin Patil is also one of the brothers of the
deceased. This witness has stated that on 5.7.2009 at about 11.30
am some of the villagers had informed him that the accused Anil,
Manohar and PW1-Deepak were being assaulted near the school
ground. He immediately rushed to the school ground and saw the
accused assaulting his brothers. He has deposed that Kashinath
(A-8) gave a blow of bat on the head of Anil, after which Anil fell
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down. Kashinath (A-8) sat on his chest and pressed his neck.
Kashinath (A-8) and Tukaram (A-6) were shouting to kill Anil. He
has stated that when his brothers PW3-Prakash, Kishore, PW1-
Deepak and Manohar tried to intervene and save Anil, the
accused assaulted them by hockey stick, stumps, etc. He has
stated that he was also assaulted by Yogesh, Sandip and
Haribhau. He has stated that he was unconscious and he
regained consciousness at Gandhi hospital after two days.
Subsequently, he learnt that his brother Anil had expired as a result
of the injuries sustained in the said incident.
45.
PW26 Janabai Katkari is one of the villagers residing near
the place of the incident. She has deposed that on the relevant
date PW3-Prakash had been to her house to assist her in the
engagement ceremony of her daughter Manisha. She has stated
that they heard some noise near the ground. PW-3 Prakash and
his brothers Kishor and PW10-Dayanand, as well as she and
Ganesh Balu Pawar rushed towards the place of the incident. She
has stated that she had seen the Sujit (A-1) wielding a blow of
sword on the head of Anil. Vilas (A-10) gave a blow of stick on the
head of PW1-Deepak. She has stated that Anil, Manohar, PW10-
Dayanand, PW3-Prakash and Kishor sustained injuries in the said
incident. The accused assaulted them with stumps, rod, bat,
sticks, and lathi etc. She has further deposed that PW24-
Mahadeo came to the place of the incident and shifted the injured
to the hospital. She has admitted in the cross examination that the
accused as well as PW1-Deepak Patil and his brothers were
assaulting each other. She has stated that it was not possible to
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specify as to who was assaulting whom.
46. Based on the aforesaid evidence the accused have been
held guilty of offence under section 302 with the aid of section 149
of the IPC. Suffice it to say that in order to bring home the charge
under section 149 IPC, essential ingredients of section 141 of the
IPC must be established. While considering the applicability of
necessary ingredients of Section 149 of the IPC, the Apex Court in
Kuldip Yadav & Ors. vs. State of Bihar, JT 2011 (4) SC has held
as under:
"26) The above provision makes it clear that before
convicting accused with the aid of Section 149 IPC,
the Court must give clear finding regarding nature of
common object and that the object was unlawful. In
the absence of such finding as also any overt act on
the part of the accused persons, mere fact that they
were armed would not be sufficient to prove common
object. Section 149 creates a specific offence and
deals with punishment of that offence. Whenever the
court convicts any person or persons of an offence
with the aid of Section 149, a clear finding regarding
the common object of the assembly must be given
and the evidence discussed must show not only the
nature of the common object but also that the object
was unlawful. Before recording a conviction under
Section 149 IPC, essential ingredients of Section 149
IPC must be established. ............"
47. It is thus clear that the accused can be held guilty of principal
section with aid of Section 149 IPC only if it is established that he
was a member of an unlawful assembly. The members of the
unlawful assembly can be held liable under section 149 of the IPC
if it is shown that they knew that the offence actually committed
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was likely to be committed in prosecution of the common object. It
is equally true that the common object does not require prior
consent and a common meeting of mind before the attack. It can
develop even on spot but sharing of such an object by all the
accused must be shown to be in existence at any time before the
actual occurrence.
48. In the instant case, the evidence of the aforesaid witnesses
as well as the evidence of PW4 Hausaram Patil vis-à-vis the scene
of offence panchanama at Exh.80 vis-a-vis the testimony of PW30
Viday Kadmane indicates that the incident occurred on the cricket
ground, which is at a distance of about 35 mtrs away from the
road. The evidence of these witnesses indicates that Sujit (A1)
and some other boys were playing cricket on the ground while
Haribhau Patil (A5), Tukaram Patil (A6), Kashinath Patil (A8) and
Shravan Patil (A9) were sitting by the road watching the match.
They were neither armed with weapons nor were they waiting for
PW1-Deepak Patil and his brothers to arrive at the place of the
incident. In fact, it is not the case of the prosecution that the
accused were aware that the complainant PW1-Deepak Patil and
his brothers would arrive at the place at the stated time and that
they had assemble to assault the complainant and his brother or to
commit murder of Anil.
49. It is thus evident that the prosecution has not proved that the
accused had assembled with a common object of causing hut to
the complainant and his brother. The evidence on the contrary,
reveals that the incident occurred with Sujit (A1) spitting and
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hurling abuses at PW1-Deepak Patil and his brother, who had
returned from Panvel. This incident led to PW1-Deepak and his
brothers Anil (deceased) and Manohar going to the play ground.
The altercation between Sujit (A1) and PW1-Deepak Patil led to a
sudden quarrel in which the two sides jostled with each other and
assaulted each other. The other family members of each group,
who arrived at the place of the incident assaulted each other with
weapons they were armed with as well as with other handy objects
like bats and stumps lying on the spot. The evidence on record
reveals that it was a case of free fight wherein members of both
the groups had sustained injuries.
50. PW1-Deepak Patil, PW2-Pratap Patil and PW3-Prakash Patil
have stated that Kashinath (A8) and Tukaram (A6) called upon
other accused to kill Anil. However, this is a material improvement
which does not find place in the FIR and statements under section
161 of the Cr.P.C. These material omissions could not have been
cursorily brushed aside as suppression of these material fact cast
a doubt on the prosecution version that the accused had reflected
their intention to commit murder of Anil and thus negates the
theory of such common object having been developed on the spot.
51. The incident had occurred on the spur of the moment without
there being premeditated plan. The evidence reveals that both
groups had indulged in free fight resulting in death of Anil and
injuries to the members of both the groups. The suddenness of
quarrel militates against the common object being entertained by
the members of the assembly. As held by the Apex court in Puran
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Vs. State of Rajasthan, AIR 1976 (SC) 912,
"in case of sudden mutual fight between the two
parties, there can be no question of invoking the aid
of Section 149 for the purpose of imposing
constructive criminal liability on accused. The
accused in such a case can be convicted only for the
injuries caused by him by his individual acts.".
47. In Ishwar Singh (supra) the Apex Court has held that if the
accused were not the aggressors no case either under section 147
or 148 of the IPC can be maintained against them and it is for the
prosecution to prove the individual assault. In Bachan Singh &
Ors. Vs. State of Punjab (supra) and Ananta Kathod Pawar &
Ors. Vs. State of Maharashtra the Apex Court has reinstated that
in a sudden and free fight each accused will be liable for the indi -
vidual act attributed to the particular accused and there is no scope
for convicting members of one of the groups under sections 147
and 148 of the IPC and for that matter for substantive offences with
the aid of section 149 of the IPC.
48. It is also pertinent to note that in the case of Dwarkaprasad
Vs. State of UP, 1993 SUPP (3) SSC 141 it has been held that:
"A free fight is that when both sides mean to fight a
pitched battle. The question of who attacks and who
defends in such a fight is wholly immaterial and
depends on the tactics adopted by the rival party. In
such cases of mutual fights, both sides can be
convicted for their individual acts. This position has
been settled by this Court in the cases of Gajanand
v. State of Uttar Pradesh, AIR 1954 SC 695; Kanbi
Nanji Virji v. State of Gujarat AIR 1970 SC 219; Puran
v. State of Rajasthan, AIR 1976 SC 912 and Vishvas
Aba Kurane v. State of Maharashtra, AIR 1978 SC
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414. As such once it is established by the prosecution
that the occurrence in question is result of a free fight
then normally no right of private defence is available
to either party and they will be guilty of their
respective acts."
49. In the facts and circumstances of the case we are of the
opinion that the prosecution has not succeeded in proving
existence of common object amongst the accused persons to
attract the provisions of Section 149 of the IPC. The incident in
question being a case of a sudden and free fight no right of private
defence is available to the accused. Hence the decision in Darshan
Singh (supra) has no application. This being a case of mutual fight
where both groups have sustained injuries, no constructive liability
can be imposed and the accused can only be held responsible for
their individual acts.
50. Now coming to the role played by each of the accused, a
cumulative reading and apposite appreciation of the evidence of
PW1 Deepak, PW2 Pratap, PW3 Prakash and PW10 Dayanand
proves beyond reasonable doubt that Sujit (A1) had taken a sword
from the hands of Alpesh (A11) and inflicted a blow of sword on the
head of Anil. Anil had sustained head injuries and he was taken to
Gandhi hospital and later shifted to MGM Hospital, Vashi. He
expired on 08.07.2009. The evidence of PW28 Dr. Bhushan Jain
vis-a-vis the post mortem report indicates that the death of
deceased Anil was due to head injury, which was sufficient to
cause death in ordinary course of nature. The medical evidence
leaves no doubt that the death of Anil was homicidal.
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51. The entry in the medical records at Exh.173 indicates that
Anil was brought to the hospital with history of 'beaten by bat'. It is
pertinent to note that the said history was not given by Anil as the
medical papers indicate that Anil was brought to the hospital in an
unconscious state. Furthermore, there is nothing to suggest that
the said entry was based on the statement of any of the
eyewitnesses. The medical papers do not reveal as to who had
given the said history, nonetheless, the fact that PW24-Mahadeo
had taken Anil to the hospital gives an indication that the said
history was given by this witness. It is pertinent to note that PW24
had gone to the place of the incident after the villagers informed
him that his brother Anil was being assaulted. He had not seen the
accused No.1 assaulting Anil. It is therefore evident that the history
of assault as recorded in the medical case papers was not based
on the personal knowledge of this witness. As against this, the FIR,
which was lodged by the eye-witness- PW1 immediately after the
incident, refers to the assault by a sword. In the light of above the
history of assault, as recorded in the medical case papers pales
into insignificance.
52. PW28 has deposed that the indoor medical case papers refer
to a single external injury (CLW). PW28 has opined that a contused
lacerated wound cannot be caused by a sharp weapon but can be
caused by a hard and blunt weapon. In the light of the said
statement it is sought to be contended that the medical opinion is
inconsistent with the ocular evidence. At this stage it would be
advantageous to refer to the decision of the Apex Court in Thaman
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Kumar Vs. State of U.T. of Chadigarh, A 2003 SC 3975, wherein
it has been held as under:-
" The conflict between oral testimony and medical
evidence can be of varied dimensions and shapes.
There may be a case where there is total absence
of injuries which are normally caused by a
particular weapon. There is another category
where though the injuries found on the victim are
of the type which are possible by the weapon of
assault, but the size and dimension of the injuries
do not exactly tally with the size and dimension of
the weapon. The third category can be where the
injuries found on the victim are such which are
normally caused by the weapon of assault but they
are not found on that portion of the body where
they are deposed to have been caused by the eye-
witnesses. The same kind of inference cannot be
drawn in the three categories of apparent conflict
in oral and medical evidence enumerated above.
In the first category it may legitimately be inferred
that the oral evidence regarding assault having
been made from a particular weapon is not truthful.
However, in the second and third category no such
inference can straightway be drawn. The manner
and method of assault, the position of the victim,
the resistance offered by him, the opportunity
available to the witnesses to see the occurrence
like their distance, presence of light and many
other similar factors will have to be taken into
consideration in judging the reliability of ocular
testimony."
53. In Kapildeo Mandal Vs. State of Bihar and Gangabhavani
Vs. Rayapati Venkat Reddy (supra) the Apex Court has
reiterated the well settled principle that the ocular testimony of a
witness has greater evidentiary value vis-à-vis medical evidence.
However, the medical evidence which is totally inconsistent with
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the eye witness version renders the ocular version doubtful.
54. In the instant case, the prosecution witnesses have
specifically stated that Sujit (A1) had inflicted a blow by sword.
Though PW28-Dr. Bhushan Jain has stated that the injury i.e. CLW
could not be caused by a sharp weapon, he has stated that the
said injury could be caused by the blunt edge of the sword. It is
true that the witnesses have not specified whether the accused
No.1 had struck the blow by the sharp or blunt edge of the sword.
The witnesses cannot be branded as untruthful merely because
they had not specified that the sword was struck from the blunt
side. In the mele surrounding the incident it would not be possible
for the witnesses to identify which side of the sword was used to
cause the injury. Furthermore, unlike an axe or Farsi, where it is
possible to observe which side of the weapon has been used, the
sword by its very nature would make such identifications difficult.
The evidence of the witnesses is not inconsistent or contrary to the
medical evidence. Hence the decisions in Rajpal & Anr. Vs. State
of Haryana and Mahadeo Vaidya & Ors. Vs. State of
Maharashtra (supra) would not be applicable to the facts of this
case.
55. It is also pertinent to note that evidence of the eye witnesses
indicate that apart from the blow of the sword inflicted by the
accused No.1, the other accused had also wielded blows of sticks,
stumps, etc. on the head of Anil. Though the indoor medical
papers makes reference to only one external head injury, the
testimony of PW28-Dr. Bhushan Jain indicates that there were
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multiple impacts on the head of the deceased. The medical
evidence is therefore, not inconsistent but in fact corroborates the
ocular evidence.
56. At this stage, it is relevant to note that the witnesses have
specifically stated that the skull of Anil was cracked with severe
blow of sword given by the accused no.1 Sujit. The testimony of
these witnesses indicate that though the other accused had also
inflicted head injury, the fatal injury was in fact inflicted by the
accused no.1 Sujit. The testimony of PW28-Dr. Bhushan Jain also
reveals that the death of Anil was due to the head injury, which was
stated to have been caused by sword. The evidence of PW28
further indicates that the said injury was sufficient to cause death.
The medical evidence fortifies the fact that fatal injury was caused
by the blow of sword inflicted by accused no.1. Thus the ocular
evidence which is duly corroborated by medical evidence proves
that the death of Anil was due to head injury inflicted by accused
no.1 Sujit.
56. The evidence of PW16-Sanjay Patil vis-à-vis the
memorandum and seizure panchanama at exhs. 116 and 117 as
well as the testimony of the Investigating Officer reveals that while
the Sujit (A1) was in custody he had volunteered to show the
sword (Art. 14) which was kept in his house. The said disclosure
statement was recorded in presence of PW16-Sanjay. Sujit (A1)
took them to his house. The accused no.1 removed a sword,
which was on loft of the kitchen and handed over the same to the
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police. The testimony of PW16 indicates that the sword was
stained with blood. The said sword was sealed and seized under
panchanama at Exh.117 drawn in presence of PW16. The sword
was sent to CFSL, Kalina, Mumbai for examination. The CA report
at Exhibit 216 reveals that the sword (Art.20) was stained with
human blood, the results of blood group were inconclusive.
Suffice it to say that the fact that the results of the blood group
were inconclusive would not dent the prosecution case.
57. It would be advantageous to refer to the observations of the
Apex Court in John Pandian Vs. State Rep. by State of
Tamilnadu, 2010 (14) SSC 129:
"The discovery appears to be credible. It has been
accepted by both the courts below and we find no
reason to discard it. This is apart from the fact that
this weapon was sent to the forensic science
laboratory (FSL) and it has been found stained with
human blood. Though the blood group could not be
ascertained, as the results were inconclusive, the
accused had to give some explanation as to how
the human blood came on this weapon. He gave
none. This discovery would very positively further
the prosecution case."
58. In the instant case the accused has not offered any
explanation as to how the sword, which was recovered at his
instance was stained with human blood. This being the case there
is no reason to discard this relevant circumstance viz the recovery
of the weapon used in the crime. The ocular evidence as well as
the other supporting evidence proves beyond reasonable doubt
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that the accused No.1 had inflicted blow of sword on the head of
Anil. Thus, the evidence adduced by the prosecution, proves the
complicity of the accused No.1 in causing the death of Anil.
59. The moot question which arises for our consideration is
whether the offence committed by Sujit (A1) constitutes an offence
punishable under section 302 IPC or whether the offence
committed by the accused can attract exception 4 of section 300 of
the IPC and further whether conviction can be converted from
section 302 to section 304 par I or part II of the IPC. Before
reverting to the facts, it would be advantageous to refer to section
300 IPC which reads as under:
"Section 300:Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing
death, or--
Secondly.--If it is done with the intention of causing
such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is
caused or--
Thirdly.--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, or--
Fourthly.--If the person committing the act knows that it
is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely
to cause death, and commits such act without any
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excuse for incurring the risk of causing death or such
injury as aforesaid.
Exception 1.--When culpable homicide is not murder.--
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and
sudden provocation, causes the death of the person
who gave the provocation or causes the death of any
other person by mistake or accident.
The above exception is subject to the following
provisos:--
First.--That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or
doing harm to any person.
Secondly.--That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such
public servant.
Thirdly.--That the provocation is not given by anything
done in the lawful exercise of the right of private
defence.
Explanation Whether the provocation was grave and
sudden enough to prevent the offence from amounting
to murder is a question of fact.
Exception 2.--Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of
private defence of person or property, exceeds the
power given to him by law and causes the death of the
person against whom he is exercising such right of
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defence without premeditation, and without any
intention of doing more harm than is necessary for the
purpose of such defence.
Exception 3.--Culpable homicide is not murder if the
offender, being a public servant or aiding a public
servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes
death by doing an act which he, in good faith, believes
to be lawful and necessary for the due discharge of his
duty as such public servant and without ill-will towards
the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and without
the offender having taken undue advantage or acted in
a cruel or unusual manner.
Explanation It is immaterial in such cases which party
offers the provocation or commits the first assault.
Exception 5.--Culpable homicide is not murder when
the person whose death is caused, being above the
age of eighteen years, suffers death or takes the risk of
death with his own consent.-
60. Dealing with the Exception 4 to section IPC, the Hon'ble Apex
Court in Ghapoo Yadav and ors. Vs. State of M.P., (2003) 3 SCC
528 has held as under:-
"...The help of Exception 4 can be invoked if death is
caused
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(a) without premeditation, (b) in a sudden fight: (c)
without the offender's having taken undue advantage
or acted in a cruel or unusual manner; and (d) the
fight must have been with the person killed. To bring
a case within Exception 4 all the ingredients
mentioned in it must be found. It is to be noted that
the 'fight' occurring in Exception 4 to Section 300
Indian Penal Code is not defined in the Indian Penal
Code. It takes two to make a fight. Heat of passion
requires that there must be no time for the passions
to cool down and in this case, the parties have
worked themselves into a fury on account of the
verbal altercation in the beginning. A fight is a combat
between two and more persons whether with or
without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a
quarrel is sudden or not must necessarily depend
upon the proved facts of each case. For the
application of Exception 4 It is not sufficient to show
that there was a sudden quarrel and there was no
premeditation. It must further be shown that the
offender has not taken undue advantage or acted in
cruel or unusual manner. The expression 'undue
advantage' as used in the provision means 'unfair
advantage'. xxx xxx xxx ...
61. In the case of A. Maharaja Vs. State of Tamilnadu, 2009
Cr.L.J. 315, the Hon'ble Apex court held:
8. The Fourth Exception of Section 300 IPC covers
acts done in a sudden fight. The said exception deals
with a case of prosecution not covered by the first
exception, after which its place would have been
more appropriate. The exception is founded upon the
same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1
there is total deprivation of self-control, in case of
Exception 4, there is only that heat of passion which
clouds men's sober reason and urges them to do
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deeds which they would not otherwise do. There is
provocation in Exception 4 as in Exception 1; but the
injury done is not the direct consequence of that
provocation. In fact Exception 4 deals with cases in
which notwithstanding that a blow may have been
struck, or some provocation given in the origin of the
dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both
parties puts them in respect of guilt upon equal
footing. A 'sudden fight' implies mutual provocation
and blows on each side. The homicide committed is
then clearly not traceable to unilateral provocation,
nor in such cases could the whole blame be placed
on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There
is no previous deliberation or determination to fight. A
fight suddenly takes place, for which both parties are
more or less to be blamed. It may be that one of them
starts it, but if the other had not aggravated it by his
own conduct it would not have taken the serious turn
it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of
blame which attaches to each fighter. The help of
Exception 4 can be invoked if death is caused (a)
without premeditation, (b) in a sudden fight; (c)
without the offender's having taken undue advantage
or acted in a cruel or unusual manner; and (d) the
fight must have been with the person killed. To bring
a case within Exception 4 all the ingredients
mentioned in it must be found. It is to be noted that
the 'fight' occurring in Exception 4 to Section 300 IPC
is not defined in the IPC. It takes two to make a fight.
Heat of passion requires that there must be no time
for the passions to cool down and in this case, the
parties have worked themselves into a fury on
account of the verbal altercation in the beginning. A
fight is a combat between two and more persons
whether with or without weapons. It is not possible to
enunciate any general rule as to what shall be
deemed to be a sudden quarrel. It is a question of
fact and whether a quarrel is sudden or not must
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necessarily depend upon the proved facts of each
case. For the application of Exception 4, it is not
sufficient to show that there was a sudden quarrel
and there was no premeditation. It must further be
shown that the offender has not taken undue
advantage or acted in cruel or unusual manner. The
expression 'undue advantage' as used in the
provision means 'unfair advantage'."
62. In Sukhbir Singh vs State Of Haryana 2002 (3) SCC 327,
the apex court has held that:-
"To avail the benefit of Exception 4, the defence is
required to probabilise that the offence was commit-
ted without pre-meditation in a sudden fight in the
heat of passion upon a sudden quarrel and the of-
fender had not taken any undue advantage and the
offender had not acted in a cruel or unusual manner.
The exception is based upon the principle that in the
absence of pre-meditation and on account of total de-
privation of self-control but on account of heat of pas-
sion, the offence was committed which, normally a
man of sober urges would not resort to. Sudden fight,
though not defined under the Act, implies mutual
provocation. It has been held by courts that a fight is
not per se palliating circumstance and only un-
pre-meditated fight is such. The time gap between
quarrel and the fight is an important consideration to
decide the applicability of the incident. If there inter-
venes a sufficient time for passion to subside, giving
the accused time to come to normalcy and the fight
takes place thereafter, the killing would be murder but
if the time gap is not sufficient, the accused may be
held entitled to the benefit of this exception."
63. It will also be useful to refer to the judgment of the Apex
Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy v.
State of Andhra Pradesh., (2006) 11 SCC 444, wherein the Court
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has observed that:-
18. ... the court should proceed to decide the pivotal
question of intention, with care and caution, as that
will decide whether the case falls under section 302
or 304 Part I or 304 Part II. Many petty or
insignificant matters - plucking of a fruit, straying of a
cattle, quarrel of children, utterance of a rude word
or even an objectionable glance, may lead to
altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy
or suspicion may be totally absent in such cases.
There may be no intention. There may be no pre-
meditation. In fact, there may not even be criminality.
At the other end of the spectrum, there may be
cases of murder where the accused attempts to
avoid the penalty for murder by attempting to put
forth a case that there was no intention to cause
death. It is for the courts to ensure that the cases of
murder punishable under Section 302, are not
converted into offences punishable under Section
304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder
punishable under Section 302. The intention to
cause death can be gathered generally from a
combination of a few or several of the following,
among other, circumstances : (i) nature of the
weapon used; (ii) whether the weapon was carried
by the accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; (vi)
whether the incident occurs by chance or whether
there was any pre- meditation; (vii) whether there
was any prior enmity or whether the deceased was a
stranger; (viii) whether there was any grave and
sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of
passion; (x) whether the person inflicting the injury
has taken undue advantage or has acted in a cruel
and unusual manner; (xi) whether the accused dealt
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a single blow or several blows. The above list of
circumstances is, of course, not exhaustive and
there may be several other special circumstances
with reference to individual cases which may throw
light on the question of intention."
65. We have examined the issue keeping in mind the above legal
principles. The evidence reveals that the incident was preceded by
an altercation between the accused No.1 and PW1-Deepak Patil,
which led to a scuffle. The family members of accused No.1 as
well as PW1-Deepak Patil came to the place of the incident armed
with weapons and joined them. The trivial altercation led to the
ensuing incident of assault in which the members of both groups
sustained injuries. There is no clear evidence as to which of the
groups was the aggressor. Nonetheless, the evidence reveals that
accused No.1 had inflicted a blow of the sword on the head of Anil,
which culminated in his death. The incident was not premeditated
but had occurred on the spur of the moment, in a sudden fight,
without there being any common object to commit murder of Anil.
The evidence further reveals that after Anil fell down with a single
blow of the sword, the accused No.1 did not inflict any other injury
upon his person when he was lying on the ground in a helpless
position. The accused No.1 therefore did not act in a cruel or
unusual manner. Thus, taking cumulative view of the facts of the
case and the legal position discussed in foregoing paragraphs, we
are of the considered view that the case is covered by Exception 4
to section 300 of the IPC.
67. The evidence reveals that the Sujit (A1) had not come armed
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with a sword but in a heat of passion, taken the sword from the
hands of Alpesh (A11) and inflicted a single blow with blunt edge
of the sword, which had unfortunately turned to be fatal. In the
facts and circumstances, the accused No.1 cannot be imputed with
the intention to cause death of the deceased Anil or with the
intention to cause that particular fatal injury. In the absence of
any positive proof that the accused no.1 caused the death of the
deceased with the intention of causing death or intentionally
inflicted that particular injury which in the ordinary course of nature
was sufficient to cause death, neither Clause I nor Clause III
of Section 300 of the IPC will be attracted. From the factual matrix,
Sujit (A1) could be imputed with the knowledge that he was likely
to cause an injury which was likely to cause death. The offence
committed by the appellant is the one punishable under Section
304 Part-II IPC and not under Section 302 IPC. Hence, the finding
of the trial court below, holding the aforesaid appellant guilty of
offence of murder punishable under Section 302 r/w 149 IPC, is
not sustainable
68. As regards the involvement of the other accused, the
evidence of PW1, PW2 and PW3 indicates that the accused nos.2,
5, 6, 7 and 10 had inflicted blows of stumps, sticks, rod and hockey
sticks on the head of Anil. It is pertinent to note that in the FIR at
Exh.59, PW1-Deepak Patil had not stated that the accused No.8
had inflicted a blow of iron rod, accused No.5 Haribhau had
inflicted a blow of stick, accused No.2 and 7 had inflicted blows of
stumps on the head of Anil. These material omissions have also
been brought on record and proved through the investigating
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officer. Similarly, PW2 and PW3 had not stated in their statements
that the accused Nos.2, 5, 6, 8 and 10 were armed with hockey
sticks, stumps sticks, lathi, etc. and that these accused had given
blows by the said weapons on the head of Anil. These material
omissions have been brought on record and proved through the
investigating officer. It is thus, evident that PW1, PW2 and PW3
had not attributed any specific role to the other accused except the
accused No.1. Such role had been attributed for the first time in
their deposition before the Court. This is nothing but an
improvement, which makes their testimony doubtful. There being
no cogent and conclusive evidence to prove the specific role
played by these accused they cannot be held guilty of the offence
under section 302 or 304 part I of the IPC.
69. The learned trial Judge has held the accused No.7 Suhas
guilty of attempting to commit murder of Manohar Patil and has
thus convicted and sentenced Suhas Patil (A7) for the offence
under section 307 r/w. 149 of the IPC. It is pertinent to note that the
learned Judge having acquitted all the other accused of the
offence under section 307 of the IPC and could not have convicted
the sole accused No.7 with aid of section 149 of the IPC. Be that
as it may, the evidence of PW27 indicates that Manohar was
brought to Gandhi Hospital on 5.7.09. Said Manohar had suffered
extra axial haemorrhage on left temporo parietal region with
effacement of basal cistern cortical sulci with cerebral edema with
mid line shift to right side. The age of the injuries was within 24
hours duration. The injuries Nos.1 and 2 were grievous nature and
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were caused with hard and blunt object. PW28 has deposed that
the head injury (intracranial injury) sustained by Manohar Patil
could have resulted into his death.
70. The medical evidence indicates that Manohar had sustained
serious head injuries which could have been fatal. The question is
whether these injuries were inflicted by accused No.7. It is to be
noted that the prosecution has not examined the injured Manohar.
It was sought to be explained that Manohar Patil had sustained
brain injuries and that he is unable to speak coherently. This
explanation cannot be accepted in view of the statement of PW1 in
his cross-examination that earlier Manohar was working as a train
operator and presently he is working in a workshop in a
Government department. The aforesaid statement falsifies the
prosecution version that Manohar was unable to depose because
of the injury sustained in the said incident or that he is not a
competent witness.
71. Be that as it may, though PW1-Deepak has stated that
Manohar had sustained severe brain injury, he has not specified as
to which of the accused had inflicted the said injury. The testimony
of PW2-Pratap Patil and PW3- Prakash Patil reveals that accused
No.2 as well as accused No.7-Suhas, had inflicted injuries on the
head of Manohar by cricket stumps. It is to be noted that PW3 had
not stated in a statement under section161 of Cr.P.C. that the
accused Nos.2 and 7 had inflicted injuries on the head of Manohar.
74. The testimony of PW10-Dayanand Patil does not indicate
that the Ganesh @ Yogesh Patil (A2) had inflicted any injury on
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Manohar. He has attributed role only to the accused No.7-Suhas
whereas PW25-Pravin has deposed that the Tukaram (A6),
Haribhau (A5), Vilas (A10), Sandip (A3) and Ganesh @Yogesh
(A2) had assaulted his brothers Manohar, Kishore, PW3-Prakash
and PW1-Deepak, by hockey sticks, stump, iron rod and sticks.
The testimony of this witness does not indicate that accused no.7
had inflicted any injury on Manohar. The evidence as regards the
assault on Manohar is inconsistent and does not cogently and
conclusively established that the accused No.7 had inflicted the
injuries on Manohar. Under the circumstances, the conviction of
Suhas Patil (A7). for offence under section 307 cannot be
sustained.
72. The appeal No.1330 of 2013 and 1141 of 2013 are directed
against the judgment of acquittal. In Ghurey Lal Vs. State of U.P.
2008 (2) UJ SC 0991, the Apex Court after considering the
previous decisions, crystallized the legal position as regards the
scope of the powers of the Appellate Court in dealing with the
appeal against acquittal as under:
"73. In light of the above, the High Court and other
appellate courts should follow the well settled principles
crystallized by number of judgments if it is going to
overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise
disturb the trial court's acquittal if it has "very
substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate
court would have "very substantial and compelling
reasons" to discard the trial court's decision. "Very
substantial and compelling reasons" exist when:
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i) The trial court's conclusion with regard to the facts is
palpably wrong;
ii) The trial court's decision was based on an erroneous
view of law;
iii) The trial court's judgment is likely to result in "grave
miscarriage of justice";
iv) The entire approach of the trial court in dealing with
the evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and
unreasonable;
vi) The trial court has ignored the evidence or misread
the material evidence or has ignored material
documents like dying declarations/ report of the
Ballistic expert, etc.
vii) This list is intended to be illustrative, not
exhaustive.
2. The Appellate Court must always give proper weight
and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that
leads to acquittal, the other to conviction - the High
Courts/appellate courts must rule in favour of the
accused."
73. We have scrutinized the evidence and analysed the
reasoning and the conclusion arrived at by the learned Judge,
keeping in view the above well settled principles laid down by the
Apex Court. In the instant case the learned Judge has held that
the offence under section 143, 144, 147, 148, 302 r/w. 149 were
proved only against accused Nos. 1,2,5,6,7,8 and 10 whereas the
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offence under section 307 was proved only against Suhas (A7).
The learned Judge therefore acquitted the other accused in
respect of the said offences. As stated earlier the incident
occurred in a free fight and provisions of section 143, 144, 147,
148 and 149 are not attracted. There is no evidence on record to
indicate that the accused who have been acquitted had played any
specific role in causing the death of Anil or in inflicting the injuries
on Manohar and the other injured witnesses. This being the case
the view taken by the trial court is probable. Consequently, these
accused cannot be held guilty of the said offences. We therefore,
find no reason to interfere with the order of acquittal.
74. In criminal appeal no.82 of 2014 the State has sought
enhancement of sentence imposed on accused Nos.3, 4, 11 and
12. Having considered the evidence against the said accused, we
are of the considered view that there are no justifiable reasons to
enhance the sentence. Hence, the order does not warrant any
interference.
75. Under the circumstances, and in in view of discussion supra
appeal 667 of 2013 is partly allowed.
i) The accused Nos.6,8 and 10 are acquitted of all the
offences.
ii) The accused No.1 is held guilty of offence 304 Part II of
IPC and sentenced to undergo Rigorous Imprisonment for 7
years and to pay a fine of Rs.5000/-. In default of payment of
fine, he shall undergo further Rigorous Imprisonment for one
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year. The period undergone be set off in terms of section 428
of the Cr.P.C.
76. The appeal No.668 of 2013 is allowed.
i) The accused Nos.2, 5 and 7 are acquitted of all the
offences.
77. The appeal Nos.1330 of 2013, 1141 of 2013 and 82 of 2014
are dismissed.
(ANUJA PRABHUDESSAI, J.) (SMT. V.K.TAHILRAMANI, J.)
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