Bombay High Court
Yunnus Mahiboob Nadaf And Ors vs The State Of Maharashtra on 27 July, 2016
Bench: V.K. Tahilramani
Apeal 753 and 765 - 09---part 2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 753 OF 2009
1. Maulali Mehboobsab Nadaf
2. Salim Ajijkhan Pathan
3. Hussain Gorikha Pathan
4. Faiiyaj Bashir Shaikh
5. Maulali Usman Pathan
6. Nitin Pruthwirajsing Bayas
7. Balaji Narayansing Bayas
8. Sakharam Kankarsing Dikkit
9. Jamir Husain Pathan- deceased
(case abated vide order dtd 17.3.2016)
nos.1 to 8 all residing at Post Dahitane
District Solapur ..Appellants
(Org. Accused nos.4 to 12)
v/s.
The State of Maharashtra
at the instance of
Jail Road Police Stn.,
Solapur ..Respondents
Mr.V.M.Thorat & Mr. S.B.Munde for the appellant nos.1 to 8
Mr.A.S.Shitole, APP for the Respondent/State.
WITH
CRIMINAL APPEAL NO.765 OF 2009
1. Yunus Mohd. Nadaf
2. Munif Siraj Pathan
3. Siraj Ibrahim Pathan
all residing at Post Dahitane
District Solapur ..Appellants
(Org. accused nos.1 to 3)
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Apeal 753 and 765 - 09---part 2.doc
v/s.
The State of Maharashtra
at the instance of
Jail Road Police Stn.,
Solapur ..Respondents
Mr.Ujwal Agandsurve for the Appellant no.1.
Mr.V.M.Thorat & Mr. S.B.Munde for the appellant nos.2 and 3
Mr.A.S.Shitole, APP for the Respondent/State.
CORAM : SMT. V.K.TAHILRAMANI &
ig SMT. ANUJA PRABHUDESSAI, JJ.
RESERVED ON: MARCH 18, 2016.
PRONOUNCED ON : JULY 27, 2016.
JUDGMENT (PER ANUJA PRABHUDESSAI, J.):
1. The appellants in Criminal Appeal No.765 of 2009 were the
accused nos.1, 2, 3, whereas the appellants in Criminal Appeal No.
753 of 2009 were accused nos.4 to 12 in Sessions Case No.168 of
2009 on the file of the Addl. Sessions Judge, Solapur (hereinafter
referred to as accused, as arrayed before the trial court).
2. The accused were tried for the offences under Section 143,
147, 148, 302, 307, 324, 336, 337, 435, 427 r/w. 149 of the I.P.C.
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and under Section 135 of the Bombay Police Act, and Section 3, 25
of Arms Act and Section 3(1)(x) and 3(2)(iv) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities ) Act.
3. By the impugned judgment dated 25.5.2009 the learned Adhoc
Addl. Sessions Judge acquitted the accused for the offences under
Sections 307, 324, r/w. 149 of IPC, 3, 25, 135 of Bombay Police Act
and 3(1)(x) and 3(2)(iv) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities Act) 1989 and held the accused
guilty of offence under Sections 147, 148, 302, 323, 326, 336, 337,
427, 435 all r/w. 149 of IPC and sentenced them as under:
i) to undergo rigorous imprisonment for one year and fine of
Rs.1000/- each i.d. imprisonment for three months for offence under
Section 147 IPC.
ii) Rigorous imprisonment for one year and fine of Rs.1000/- each
i.d. simple imprisonment for three months for offence under Section
148 of IPC.
iii) Life imprisonment and fine of Rs.1000/- each i.d. Simple
imprisonment for three months for offence under Section 302 r/w.
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149 IPC.
iv) Rigorous imprisonment for one month and fine of Rs.200/-
each i.d. Simple imprisonment for 10 days for offence under Section
323 r/w. 149 IPC.
v) Rigorous imprisonment for one month and fine of Rs.200/- I.d.
Simple imprisonment for 10 days for offence under Section 336 r/w.
149 of IPC.
vi) Rigorous imprisonment for two months and fine of Rs.500/-
each i.d. Simple imprisonment for one month for offence under
Section 337 r/w. 149 of IPC.
Vii) Rigorous imprisonment for one year and fine of Rs.500/- each
i.d. simple imprisonment for three months for offence under Section
435 r/w. 149 IPC and
viii) Rigorous imprisonment for one year and fine of Rs.500/- each
for offence under Section 427 r/w. 149 of IPC.
4. Being aggrieved by the conviction and sentence the accused
have preferred these appeals.
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5. The case of the prosecution in brief is that on 8.5.2004 at about
8 p.m. the complainant Vinayak Khatal and his friends Vithal
Gaikwad i.e. deceased, Balasaheb Sarvagod and others were
proceeding from Panchsheel Nagar to Vadje Village to enquire about
the assault on Dayanand, the brother-in-law of Vithal. Vinayak,
Vitthal and Balasaheb were traveling by a motor cycle, whereas the
others followed them by an auto-rickshaw bearing No. MWC 1528.
When they reached near Hanuman temple at Village Dahitane,
some boys of Muslim community from the said area started pelting
stones at them, and as such they stopped at the place of the
incident. Immediately thereafter the accused no.1 rushed towards
the complainant and gave a blow of knife on his left thigh. The
accused no.1 also tried to inflict a blow of knife on his abdomen, but
the complainant avoided the same by putting his hand forward and
in the process the complainant received an injury on his right palm.
It is further alleged that the accused Munna Pathan also gave a blow
of iron zari on the head of the complainant.
6. The accused no.1. Yunus Nadaf took a sword which was in the
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hands of the other accused and stabbed Vithal Gaikwad, as a result,
said Vithal Gaikwad sustained injuries and fell on the ground. The
complainant and the other injured ran away from the spot to save
their lives. The accused pelted stones at them while they were
running away. Balasaheb Sarvagod and Shankar Bansode
sustained injuries due to pelting of stones. The accused nos. 1 and
2 also damaged and burnt the motorcycle of Balasaheb.
7.
The complainant and others went to Jodhbhavi Peth Police
Chowki. They learnt that Shankar Bansode and Vithal Gaikwad
were taken to the Civil Hospital and that injured Vithal was declared
dead. The complainant Vinayak therefore lodged a FIR, pursuant to
which the Investigating Officer registered Crime No.149 of 2004 for
offence under Sections 147, 148, 302, 307, 324, 336, 337, 435, 427
r/w.149 IPC and 135 of Bombay Police Act, r/w. Sec. 3, 25 of Arms
Act. Subsequently, Section 3(1)(x) and 3(2)(iv) of the Scheduled
Castes and Scheduled Tribes Atrocities Act came to be added.
Upon registration of the crime, the Investigating Officer deputed
police staff to trace the accused.
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8. PW 13 - PI Ravindra Rasal conducted the panchanama over
the body of the deceased and sent the body for postmortem. The
postmortem on the body of deceased Vithal was conducted by PW
11 Dr. Subhashchandra Sardar. He noticed following external and
internal injuries over the body of the deceased:
External injuries:
I) Incised wound on head 3" above right eye brow on
forehead 1" x 1" scalp deep.
II) Stab wound on abdomen right side 8" below the
right nipple vertical elliptical margin clear cut regular
gapping present inverted 1" x 1" cavity deep, through the
stab wound coil of intestine coming out.
III) Incised wound on lateral aspect of left hand near
wrist joint 1 x1" vertical muscle deep, margin clear cut
regular gapping present inverted.
IV) Incised wound 1" x 1/2" muscle deep margin
cleancut, regular gapping present.
Internal Injuries:
1) Abdominal cavity was full of blood clot,
2) Penetrating wound on duodenum 1/2" x 1/2" margin
clear cut regular gapping present big haematoma below it.
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3) On internal examination of head it was found that
Hematoma under scalp, brain was congested.
PW11 Dr. Subhashchandra Sardar opined that the cause of death
was shock & hemorrhage due to stab injury to intestine.
9. The Investigating Officer visited the scene of offence,
panchanama at Exh.34., seized the burnt motorcycle and the piece
of iron zari, blood stained stone and other incriminating material from
the scene of offence. The accused were arrested and their clothes
were seized. PW 13 recorded the statements of the witnesses.
Since the investigation disclosed offence under SC ST Act, he
handed over further investigation to ACP Pansare-PW 14 and in the
course of the investigation, PW 14- ACP Pansare recovered a knife,
one stick and a motorcycle chain, pursuant to the disclosure
statement made by the accused nos.1, 4 and 3 respectively. He
sent the incriminating material to CSFL for analysis. The absconding
accused nos.2 and 12 were arrested on 15.5.2012 and the handle of
the iron zari was recovered pursuant to the disclosure statement
made by the accused no.2.
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10. After completion of investigation, PW14 filed the charge sheet
before the learned JMFC, Solapur. The learned JMFC, Solapur
committed the case to the Sessions Court, Solapur. The prosecution
in support of its case examined 18 witnesses. The statement of the
accused was recorded under Section 313 of Cr.P.C. The defence of
the accused, as disclosed from the tenor of the cross-examination is
that PW8 and PW10 had committed murder of Vithal with the help of
the complainant since he was having an illicit relationship with their
sisters. The learned Sessions judge, after considering the evidence
adduced by the prosecution and after hearing the learned counsels
for the respective parties, convicted and sentenced the accused as
stated above. Being aggrieved by this conviction and sentence, the
appellants have preferred these appeals.
11. The learned Counsel Shri Thorat has submitted that the
prosecution has not established the guilt of the accused beyond
reasonable doubt. He has submitted that the prosecution has not
established the identity of the accused. He has further submitted
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that the evidence of the injured witnesses is inconsistent and suffers
from material omissions, contradictions and improvements.
Furthermore, the medical evidence is not consistent with the ocular
evidence. The learned counsel Shri Thorat therefore claims that the
prosecution case is improbable.
12. He has submitted that the accused had no reasons to believe
that the deceased would be proceeding towards Vadje so as to
assemble at the spot of the incident with an intention of assaulting
the complainant and others. He has submitted that the prosecution
has suppressed the genesis of the incident and hence the case of
the prosecution cannot be believed. He has relied upon the
decisions:
(i) Bhimrao @ Ramesh Pandhari Bhade (2003) 3 SCC 37
(ii) Bunnilal Chaudhary vs. State of Bihar (2006) 10 SCC 639
(iii) Bhera v. State of Rajasthan (2000) 10 SCC 225
(iv) Vadla Chandraiah v. State of A.P. (2006) 13 SCC 587
13. The learned APP has submitted that the case of the
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prosecution is supported by the injured witnesses whose presence
at the place of the incident cannot be doubted. He has submitted
that the medical evidence as well as the C.A. report corroborates the
ocular evidence. He submits that the testimony of the injured
witnesses cannot be discarded on the basis of the missing
omissions and contradictions.
14. We have analysed the evidence and considered the
submissions advanced by the learned Counsel for the appellants/
accused and the learned APP for the State.
15. At the outset, it may be mentioned that the evidence of PW11
Dr. Subhashchandra Sardar vis-a-vis the postmortem report at
Exh.64 leaves no manner of doubt that death of Vithal Gaikwad was
homicidal. The prosecution in order to prove that the death of Vithal
was caused by the above accused has examined injured witnesses,
viz. PW8 Balasaheb Sarvagod, PW9 Vinayak Khatal, PW10 Shankar
Bansode, besides the eye witness-PW6 Rahul Khatal.
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16. PW9 Vinayak had lodged the FIR at Exh.51. He has deposed
that the deceased is the brother-in-law of Dayanand Kamble. He has
deposed that on 8.5.2004 at about 8 p.m. deceased Vithal had come
to his house and told him that there was quarrel between his brother-
in-law Dayanand Kamble and some other persons at Village Vadje.
The deceased Vithal requested the complainant to accompany him
to village Vadje. At about 8 to 8.30 p.m. he along with Vithal and
Balasaheb proceeded to Village Vadje on a motorcycle. PW10
Shankar Bansode, Dnyaneshwar kamble, PW6 Rahul Khatal,
Madhukar Gaikwad, Nandkumar Gaikwad, Chimma Kamble, Latika
Shinde, Santosh Bhakumbe followed them in a rickshaw. When they
reached near Hanuman temple at Dahitane, they saw the accused
pelting stones at them. One of the stones hit Balasaheb Sarvagod,
hence they stopped the motorcycle in front of the house of
Kadamsing Dikkit. The rickshaw which was following them also
halted at the place of the incident. PW9 deposed that some of the
persons who had come by rickshaw ran away from the place of the
incident. PW9 has deposed that while he was trying to run away,
the accused no.1 gave a blow of knife on his right leg. The accused
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no.1 tried to inflict another blow on his stomach. He put his hand
forward to avoid the blow and as a consequence thereof sustained
injury on his right palm.
17. PW9 has deposed that accused no.2 gave a blow of iron jhari
on his head and he sustained bleeding head injury. He has deposed
that the accused no.1 abused them in filthy words. The accused
no.1 took a sword which was in the hands of another person and
inflicted a blow of the said sword on the abdomen of Vithal Gaikwad.
As a result, Vithal sustained bleeding injuries and fell down. He has
deposed that the other accused also assaulted them by sticks and
motorcycle chain. The accused no.1 and accused no.2 set fire to
the motorcycle of Balasaheb. PW9 has deposed that they ran away
from the place of the incident and went to Panchsheel Nagar.
Thereafter he, Balasaheb Sarvagod and some others went to
Jodbhavi Peth Police Stn. and lodged the FIR at Exh.51.
18. In his cross examination PW9 has stated that Rahul Khatal is
his younger brother. He has deposed that PW6 Rahul had told him
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that Munna Pathan, Phiroz Pathan, Maulali Pathan and Ramesh had
assaulted him on 8.5.2004. He has admitted in the cross
examination that he had not stated in the FIR that the accused had
pelted stones on them when they were proceeding to village Vadje
because of the quarrel between Dayanand and some other persons
from village Vadje. He has also admitted that he had not stated in
the FIR that he had stopped the motor cycle near the house of
Kadamsingh Dikkit and that the accused had started beating them
near the house of Kadamsingh Dikkit. He has admitted that he has
not stated in the FIR that the accused no.2 had assaulted them with
a motorcycle chain and the other accused had assaulted them with
sticks.
19. PW9 has admitted that Vithal was his childhood friend. He
has denied the suggestion that they were involved in several other
illegal activities and that deceased Vithal was their leader. He has
also denied that Vithal was involved in the business of illicit liquor.
He has denied that Vithal was having illicit relation with the sisters of
Balasaheb and Shankar Bansode and that he along with said
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Balasaheb and Shankar had decided to eliminate Vithal. He has
denied that Vithal had asked them to accompany him to village
Dahitne as he wanted to attack the persons involved in the quarrel
which took place sometime on 7 th or 8th May, 2004. He has denied
the suggestion that they had proceeded to Village Dahitne with
weapons and that they deliberately took the vehicle infront of the
house of Dikkit and committed murder of Vithal. He has denied that
he has lodged a false report against the accused.
20. PW8 Balasaheb Sarvagod has deposed that on 8.5.2004 he
along with PW9 and deceased Vithal had proceeded to Village Vadje
by motorcycle. When they reached near Hanuman temple, the
accused pelted stones at them. He has further stated that they
parked the motorcycle and stayed near the house of one Kadamsing
Dikkit. The rickshaw, which was following them also stopped at the
place of the incident. He has deposed that they rushed towards the
house of one Revankoli due to pelting of stones. He has deposed
that the accused no.1 inflicted a blow of knife on the leg of PW9
Vinayak and that when he tried to inflict another blow on his
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stomach, PW9 raised his hand and in the process PW9 sustained
injuries on his hands. He has deposed that the accused no.1 took a
sword which was in the hands of another accused and gave several
blows of sword on Vithal Gaikwad. The accused no.3 assaulted
them by motorcycle chain, whereas accused no.4 and others
assaulted them by sticks and stones. He has identified the accused
who were present before the Court.
21.
PW8 has further stated that on 7.5.2004 there was an
Orchestra at village Dahitne and that there was an altercation
between them and the accused. He has further stated that on
8.5.2004 at about 11 a.m. the accused had assaulted PW6 Rahul
and one Ramesh. He claims that the said dispute was resolved.
PW8 has denied that the deceased Vithal was having illicit relation
with his sister and the sister of PW10. He has denied that he and
PW10 with the help of PW9 had committed murder of deceased
Vithal.
22. PW10 Shankar Bansode has deposed that Dayanand Kamble,
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brother-in-law of deceased Vithal was assaulted by someone from
Village Vadje. On 8.5.2004 at about 8.00 to 8.30 p.m. he along with
Vithal, PW9 Vinayak, PW8 Balasaheb, Santosh Ghadkumbe,
Madhukar Gaikwad, Nandkumar Gaikwad, Dnyaneshwar Kamble,
Rahul Khatal, Latika Shinde, Laxmi @ Chimma Kamble were
proceeding to Vadje to inquire about the said incident. PW8
Balasaheb, deceased Vithal and PW9 Vinayak were on a
motorcycle and others followed them in a rickshaw. He has deposed
that when they reached near Hanuman temple at Village Dahitne,
the accused pelted stones at them. Hence, PW8 Balasaheb stopped
the motorcycle and they went near the house of one Kadamsing
Dikkit. He has deposed that accused no.1 gave a blow of knife on
the leg of PW9 Vinayak. Accused No.1 tried to inflict another blow
on his stomach but PW9 held a knife and avoided the blow. He has
deposed that accused no.2 also gave a blow of iron jhari on the
head of Vinayak. He has deposed that accused no.1 took a sword
from one of the accused and inflicted several blows of sword on
Vithal, as a result thereafter Vithal suffered severe bleeding injuries.
He has also stated that the accused assaulted him, Vinayak and
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Bhausaheb by a motorcycle chain, stones and sticks. He has
identified all the accused as assailants.
23. In his cross examination PW10 has stated that the entire
incident had lasted for about 5 to 7 minutes. He has stated that he
had sustained injuries and was unconscious and that he does not
know as to who had taken him to the hospital. He has stated that
he regained consciousness in the hospital. He has denied the
suggestion that the accused were not involved in assaulting him or
Vithal and other prosecution witnesses. He has also denied the
suggestion that the deceased Vithal was eve-teasing his sister.
24. PW6 Rahul has deposed that on 8.5.2004 at about 8 - 8.30
p.m he along with Dnyaneshwar Kamble, Shankar (PW10), Vinayak
and others were proceeding to village Vadje to enquire about the
incident of assault on Dayanand, the brother-in-law of deceased
Vithal. PW9- Complainant Vinayak, the deceased Vithal and PW8
Balasaheb were on the motorcycle, whereas he and the others had
followed them by a rickshaw. When they reached near Maruti
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Temple at Dahitne, all the accused started pelting stones at them.
They stopped the motorcycle and rickshaw near the house of
Kamdsing Dikkit at which time all the accused rushed towards them
and assaulted them. The accused no.1 inflicted a blow of knife on
the right leg of complainant Vinayak, and while he was trying to
inflict another blow on his abdomen, PW9 held the knife and in the
process sustained injury on the palm. PW6 has further deposed
that the accused no.2 also inflicted a blow of zari on the head of
PW9 Vinayak. In the meantime the accused no.1 gave the knife to
some other accused and took a sword from his hand and inflicted a
blow on the abdomen of Vithal. The other accused pelted stones at
them as a result Balu Sarvagod and Shankar sustained bleeding
injuries. He has stated that he was frightened and he ran away from
the place of the incident.
25. He has stated that on 7.5.2004 there was a fair in village
Dahitne, and that there was a quarrel between him and the
accused. He has also deposed that on 8.5.2004 at about 11 a.m. the
accused had assaulted him. He has stated in his cross examination
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that the village fair was from 5.5.2004 to 7.5.2004. An orchestra was
organized on 7.5.2004. He alongwith Vithal, Shankar, Balasaheb
were present for the programme. He has stated that Sanjay Bias
was the President of the Village Fair Committee. He has denied that
some boys from Panchsheel Nagar were dancing under the
influence of alcohol and that Sanjay had prevented them from
dancing. He has also denied that deceased Vithal had slapped
Sanjay. He has admitted that PSI Kadam who was on bandobast
duty had stopped the orchestra and asked the respective groups to
go home.
26. The evidence adduced by the prosecution reveals that a day
prior to the incident there was a quarrel between PW6 and the
accused. It is therefore evident that the accused were known to
PW6 and the other injured witnesses and they were sufficiently
identified. Hence there is no dispute about the identity of the
accused.
27. The evidence of PW6, PW8, PW9 and PW10 amply proves
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that the incident leading to these appeals occurred in village Dahitne
on 8.5.2004 at 8 to 8.30 pm . The testimony of these witnesses
proves that on the relevant date, they were proceeding to Vadje and
when they reached near the temple at Dahitne, the accused had
pelted stones at them. Immediately after they got down from the
vehicles, the accused no.1 inflicted injury on PW9 by a knife and
later he took a sword from the hands of another accused and gave
several blows of sword on Vithal. The medical evidence reveals that
the blow inflicted on the abdomen had proved to be fatal . PW11 Dr.
Sardar also opined that the said stab wound (injury no.2) could be
caused by the sword (Art.39). Thus the ocular evidence which is
corroborated by medical evidence proves that Vithal had died as a
result of the fatal blow inflicted by the accused no.1.
28. The prosecution has also examined PW7 Gajanan to prove the
recovery of knife and sword, pursuant to the disclosure made by the
accused no.1. He has deposed that on 10.5.2005, one of the
accused who was in police custody had stated that he would
produce the weapons and that his statement was recorded in his
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presence. He had stated that thereafter one stick, sword, iron bar
were brought to the police station. He had further stated that he
was unable to disclose the name of the said accused. He was
cross examined by the APP. In his cross examination he has stated
that on 10.5.2004 at about 8.00 am the accused no.1 had made a
statement that he would produce the sword and knife which were
kept behind the house of Shrirang Bansode. He has stated that the
said statement (Exh.39) was recorded in his presence and that he
had signed the same. He has further stated that the accused no.1
had taken them towards the rear side of the house of Shrirang
Bansode. The accused no.1 had taken a sword and knife from the
shrubs and handed over to the police. The said weapons were
seized by the police under panchanama at Exh.40.
29. The testimony of PW14 Dilip Phansale, Addl. Commissioner of
Police, reveals that in view of addition of provisions under Atrocities
Act he had taken over the investigation of the said crime from PI
Ravindra-PW10. He interrogated the accused no.1 on 10.5.2004
and in the course of the interrogation the accused no.1 volunteered
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to produce the knife and the sword. Accordingly, he prepared a
memorandum panchanama (Exh.39) in presence of the panch
witnesses. The accused no.1 thereafter took them to Bhim Nagar,
Dahitne. The accused no.1 removed one knife and sword which
were concealed in Babul shrubs. The said knife and sword (Art.39)
were stained with blood. He seized the said weapons under seizure
panchanama at Exh.40. The said weapons as well as the clothes of
the accused and the deceased seized by PW13 under panchanama
for CA examination. The testimony of PW16-Head Constable Rahul
reveals that he had taken the said muddemal articles to CSFL, Pune
on 15.5.2004, under requisition letter at Exh.105.
30. The CA report at Exh. 107 reveals that the blood group of
Vithal could not be determined as the results were inconclusive.
Nonetheless the CA report at Exh. 108 reveals that the clothes of
the deceased were stained with human blood of B group. The CA
report at Exh.118 further reveals that the sword (Art.39) recovered at
the instance of the accused no.1 was stained with human blood,
however the blood group was inconclusive. The accused no.1 has
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not explained how the sword recovered from his house at his
instance was stained with blood.
31. The ocular evidence which is duly corroborating circumstantial
evidence in the form of recovery of sword, CA report as well as
medical evidence, proves that the accused no.1 had attacked the
deceased Vithal with a sword. As regards the nature of the injuries,
the evidence of PW11 Dr. Subhashchandra Sardar reveals that the
deceased had suffered three incise wounds, above right eye-brow
on the head and left hand, a hematoma below the scalp and a stab
wound on abdomen. The medical evidence leaves no doubt that the
death of Vithal was homicidal. The question is whether the offence
is covered by Section 300 of IPC or under Section 304 (I) or 304 (II)
of IPC.
32. While drawing distinction between culpable homicide and
murder, the Apex Court in the case of Virsa Singh V/s. State of
Punjab, AIR 1958 SC 465, has held as under:-
"12... the prosecution must prove the following facts
before it can bring a case under s. 300, "thirdly " ;
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First, it must establish, quite objectively, that a bodily
injury is present ;
Secondly, the nature of the injury must be proved; These
are purely objective investigations.
Thirdly, it must be proved that there was an intention to
inflict that particular bodily injury, that is to say, that it
was not accidental or unintentional, or that some other
kind of injury was intended.
Once these three elements are proved to be present, the
enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above is
sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender.
13. Once these four elements are established by the
prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under s.
300, 3rdly. It does not matter that there was no intention to
cause death. It does not matter that there was Do intention
even to cause an injury of a kind that is sufficient to cause
death in the ordinary course of nature (not that there is any
real distinction between the two). It does not even matter
that there is no knowledge that an act of that kind will be
likely to cause death. Once the intention to cause the
bodily injury actually found to be present is proved, the
rest of the enquiry is purely objective and the only
question is whether, as a matter of purely objective
inference, the injury is sufficient in the ordinary course of
nature to cause death. No one has a licence to run around
inflicting injuries that are sufficient to cause death in the
ordinary course of nature and claim that they are not guilty
of murder. If they inflict injuries of that kind, they must
face the consequences; and they can only escape if it can
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be shown, or reasonably deduced that the injury was
accidental or otherwise unintentional...."
33. Similar distinction is also drawn in the case of Kannda Swamy
V/s. State of Tamilnadu (2008) 11 SCC 97 and In the State of Andhra
Pradesh V/s. Rayavarapu Punnayya & Anr. 1976 (4) SCC 382.
34. Reverting to the facts of the present case, the evidence reveals
that though the accused no.1 was armed with a knife, he did not
inflict injury on Vithal by knife, but he took a sword from the hands of
another accused and inflicted several blows of sword on Vithal who
was unarmed. The nature of injury no.2 reveals that the accused
no.1 had pierced the sword in the abdomen of the deceased with
such a force that the sword had penetrated the duodenum and a coil
of small intestine had come out . The evidence of PW11 also
indicates that the injury no.2 i.e. the stab wound was sufficient to
cause death. Furthermore, the evidence indicates that Vithal had
died instantaneously even before he could be given medical aid.
The aforestated facts leave no manner of doubt that the injuries
inflicted on Vithal were neither accidental nor unintentional. On the
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contrary, the nature of the weapon used as well as the nature of the
injury shows that the accused had pierced the sword in the
abdomen with the requisite intention of causing murder of the
deceased. There is nothing on record to prove that the deceased or
the other prosecution eye witnesses were armed with weapons or
that they had provoked the accused no.1 in any manner. The case
does not therefore fall in any of Exceptions to Section 300 IPC. In the
light of above facts and circumstances, in our view the offence is
covered under clause III of Section 300 IPC. Consequently, we are
unable to accept the contention of the learned counsel for the
accused that the case falls under section 304 part I or part II of IPC.
Under the circumstances, in our considered view, the prosecution
has established the guilt of the accused no.1 for committing offence
punishable under Section 302 of IPC.
35. It is to be noted that the other accused have been held guilty
of offence under Section 302 IPC with aid of Section 149 of IPC.
Needless to state that these accused could have been held guilty of
the substantive offence with the aid of Section 149 of IPC only if it
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was proved that they were members of unlawful assembly and that
they had assembled with common object of causing death of Vithal,
or injuries to complainant or to commit any other offence. 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 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 141 IPC must
be established......"
36. In Bunimlal Choudhary (supra) the Apex Court has reiterated
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that
" it is now the settled law that under Section 149 IPC, the
liability of other members for the offence committed
during the continuance of the occurrence rests upon the
fact whether the other persons knew before hand that
the offence actually committed was likely to be
committed in prosecution of the common object. Such
knowledge may reasonably be collected from the nature
of the assembly, arms, or behavior on or before the
scene of the occurrence. If such knowledge may not
reasonably be attributed to the other members of the
assembly then their liability for the offence committed
during occurrence does not arise."
37. In the light of the above principles, the crucial question to be
determined is whether the accused were the members of the
unlawful assembly within the meaning of Section 141 of IPC. It is to
be noted that the evidence of PW9 Vinayak vis-a-vis FIR at Exh.51
as well as the testimony of PW6, PW8 and PW10 reveals that they
were proceeding to village Vadje in order to enquire about the
incident of assault on Dayanand, the brother-in-law of Vithal. The
testimony of these witnesses does not indicate that the accused
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were aware that they would be passing by Village Dahitne on the
said date and time, and that they had assembled at the place of the
incident with a common object of causing death of Vithal, injuries to
the other prosecution witnesses or for committing any other offence.
38. It is also pertinent to note that PW9 and other eye witnesses
have stated that the other accused were armed with motorcycle
chain, sticks etc. However, no such statement was made in the FIR
or in the statement under 161 of Cr.PC. These material omissions
which were elicited in the cross examination and proved through the
Investigating Officer makes it doubtful to accept that the other
accused had gathered at the place of the incident armed with
weapons with an object of assaulting Vithal and other injured
witnesses. The omissions, variations and improvement in the
testimony of these witnesses raises a serious doubt about presence
of these accused at the place of incident and their participation in the
incident and thus rules out the possibility of these accused being
members of an unlawful assembly or having formed an unlawful
assembly with common object of causing death of Vithal or injuries to
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the complainant or any other offence. The prosecution having failed
to prove the essential ingredients of section 141 CrPc, the conviction
of the accused under Section 147, 148 is unsustainable.
Consequently, the other accused also cannot be held guilty of the
offence under Section 302 IPC and the other substantive offences
with aid of Section 149 of IPC. The accused can at the most be held
liable for their individual acts.
39.
As regards the individual role of the accused, as stated earlier
there is no evidence to prove that any of these accused other than
the accused no.1 was responsible for inflicting injuries on Vithal.
Hence, except accused no.1 none of the other accused can be
individually held guilty of committing murder of Vithal.
40. The accused are also held guilty of offence under Section 323
of IPC. The testimony of PW6, PW8, PW9 and PW10 reveals that
accused no1 had given a blow of knife on the leg of PW9 . It may be
mentioned here that the evidence of Dr. Chidanand- PW12 vis-à-vis
the MLC record and medical certificate at exh78 and 79 reveals that
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PW9 had sustained incised wound on his right leg. The doctor has
opined that the said injury was simple in nature and could be caused
by a sharp weapon. The medical evidence therefore corroborates
the fact that the accused no.1 had inflicted an injury on PW9 by
means of a knife. Though this act constitutes an offence under
Section 324 IPC, the learned Judge has held the accused guilty of
offence under Section 323 IPC. In the absence of any challenge to
the said finding by the State, we are not inclined to interfere with the
conviction of the accused no.1 for offence under Section 323 IPC.
41. It is pertinent to note that these witnesses had deposed that
accused no.2 had struck the iron zari on the head of PW9 and that
he had sustained bleeding injury. However, the medical evidence
does not indicate that PW9 had sustained a head injury. In view of
the inconsistency in the oral evidence, vis-à-vis the medical
evidence, we are inclined to grant benefit of doubt to accused no.2.
42. PW8 and PW10 have alleged that the accused no.3 and 4 had
assaulted them with a motorcycle chain and a stick. PW6 is totally
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silent on this aspect. PW9 has also not attributed any role to
accused no.4. He had made a general statement that all the accused
had assaulted them with sticks. Though the medical evidence
reveals that PW8 and Pw10 had sustained simple injuries, there is
no cogent and conclusive evidence to prove as to which of the
accused had inflicted these injuries. In the circumstances,
conviction of the accused nos.2 to 11 for offence under Section 323
cannot be sustained.
43. The learned Judge has also held that the accused had pelted
stones at the prosecution witnesses and had endangered their life by
rash and negligent act. The learned Judge has therefore held the
accused guilty of offence under Section 336 and 337 of IPC.
Rashness or negligence is the gravamen of these sections. It is not
the case of prosecution that the accused had caused injuries or
endangered life or safety of the prosecution witnesses by their rash
or negligent act . Suffice it to say that these sections have no
application when, as in the present case, the injury was allegedly
inflicted with an intention of causing hurt or knowing that it was likely
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to cause hurt. This being the case the conviction of accused under
Section 336 and 337 cannot be sustained.
44. The evidence of PW6, PW8, PW9 and PW10 reveals that the
accused nos.1 and 2 had set fire to the motorcyle of Balasaheb
Sarvagod. The testimony of the Investigating Officer Ravindra
Rasal PW13, indicates that he had visited the scene of offence and
had seen a motorcyle lying at the place of incident in a burnt
condition. He has stated that he had seized the burnt motorcycle
under panchanama at Exh.89. The evidence of the aforestated
witnesess, vis-à-vis the panchanama at Exh.89 proves that the
accused no.1 and 2 had set fire to the motorcycle and had thereby
committed offence under Section 435 of IPC. It may be mentioned
here that there is no evidence to prove that accused no.3 to 11 were
involved in setting fire to the motorcycle. Hence, the conviction of
the accused nos.3 to 11 for offence under Section 435 cannot be
sustained.
45. Under the circumstances and in view of the discussion supra,
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Appeal No. 753 of 2009 filed by original accused nos.4 to 11 is
allowed and Appeal No.765 of 2009 is partly allowed.
i). The accused nos.1 to 11 are acquitted of the offences under
Sections, 147, 148, 302, 323, 336, 337, 435, 427 r/w. 149 of IPC.
ii). The accused no.1 is held guilty of the offence under Section
302 of IPC and is sentenced to undergo imprisonment for life and to
pay fine of Rs.5000/- in default simple imprisonment for six months.
iii). The accused no.1 is also held guilty for offence under Section
323 of IPC and is sentenced to undergo imprisonment for six months
and fine of Rs.1000/- in default simple imprisonment for 15 days.
iv). The accused nos.1 and 2 are held guilty of offence under
section 435 of IPC and sentenced to undergo imprisonment for six
months and to pay fine of Rs.5000/- in default undergo simple
imprisonment for 30 days.
v). The substantive sentence to run concurrently. In terms of section
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428 of Cr.P.C. the period of detention undergone by the accused
nos.1 and 2 during the investigation till the pendency of the appeal
shall be set of as against the substantive sentence for offences
under Section 323 and 435 IPC.
(ANUJA PRABHUDESSAI, J.) (SMT. V.K.TAHILRAMANI, J.)
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