Vishwambhar Ramji Gaikwad And Ors vs The State Of Mah
2016 Latest Caselaw 384 Bom

                                          1                   Cr. Appeal 569/12

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                      
                           BENCH AT AURANGABAD




                                              
                         CRIMINAL APPEAL NO. 569 OF 2012


    1       Vishwambhar   Ramji   Gaikwad,   Aged                  APPELLANTS




                                             
            45 years, Occupation Mason,
    2       Gangadhar      @       Gangaprasad 
            Vishwambhar   Gaikwad,   Aged   20 
            years, Occupation Mason,




                                     
    3       Sainath   Laxman   Gaikwad,   Aged   19 
            years, Occupation Labour,
                              
    4       Dadarao Digambar Gaikwad, Aged 23 
            years, Occupation Education,
                             
    5       Dhanraj Sambhaji Gaikwad, Aged 19 
            years, Occupation Labour,
    6       Madhav   Sambhaji  Gaikwad,   Aged   29 
            years, Occupation Mason,
      


            All   Resident   of   Borgaon,   Taluka 
            Bhokar, District Nanded
   



            V E R S U S





            The State of Maharashtra                          RESPONDENT 


    Mr. Kishor C. Sant, Advocate for the Appellants





    Mr. S.D. Ghayal, A.P.P. for the Respondent - State
    Mr. D.Y. Nandedkar, Advocate to assist the A.P.P.


                                       CORAM :  A.V. NIRGUDE &
                                                INDIRA K. JAIN, JJ. 

DATE : 07.03.2016

2 Cr. Appeal 569/12

ORAL JUDGMENT [PER : A.V. NIRGUDE,J.] :-

1. The appellants challenged the judgment and

order passed by the learned Additional Sessions Judge,

Bhokar, District Nanded, dated 16th July, 2012, in

Sessions Case No.28 of 2011, convicting all the

appellants for the offences punishable under Sections

302 and 323 read with Section 149 of the Indian Penal

Code. They were all sentenced to life imprisonment

and various other sentences.

2. The incident occurred on 11th March, 2011, at

about 09.30 p.m., in an open space at village Borgaon,

Taluka Bhokar, which was used for arranging a

vegetarian feast by one villager-Maroti Edke. Number

of persons had meals there after 06.00 p.m. At about

09.30 p.m., the feast was about to be over. At that

time, all appellants/accused went there and started

abusing Abaji-the victim. They abused and humiliated

him saying that he and his family members were not

honourable enough to offer feast to the villagers.

Accused No.1 was more aggressive and started scuffle

3 Cr. Appeal 569/12

with Abaji. Other accused joined and they also

assaulted Abaji. They started dragging Abaji. But,

before they could go there, accused No.2-Gangadhar

asked his companions to keep Abaji holding. He left

for his house and came back with Katti, a weapon. He

then gave blow of the weapon on Abaji's head. Soon

thereafter, appellant No.6 - Sainath picked up a stick

and gave a blow on Abaji's head. Abaji fell down. He

was taken to the hospital where he declared dead.

Thereafter, Abaji's wife lodged complaint, and

investigation started.

3. At the time of trial, depositions of four

eye-witnesses were recorded, who were subjected to

lengthy cross-examination. Learned judge of the trial

Court held that all accused were members of unlawful

assembly which had common object of assaulting victim

Abjaji. He further held that accused being members of

unlawful assembly were armed with deadly weapons. He

further held that all accused in prosecution of the

common object of the unlawful assembly committed

murder of Abaji.

4 Cr. Appeal 569/12

4. Learned counsel for the appellants suggested

to us that evidence on record was not reliable and

trustworthy and all the accused/appellants deserved

acquittal.

5. Let us now go to the eye-witness account of

the incident. Prosecution witness No.6 is Surekha,

the wife of victim Abaji. She stated that on the day

of incident, her husband's cousin had arranged village

feast on his returning from successful pilgrimage.

She and her husband victim Abaji went for the feast

since morning. She said that the feast started at

06.00 p.m. and continued up to 09.00 p.m.

6. When the hosts were about to sit for meals,

the accused came there. The accused asked her husband

Abaji as to how could Abaji's family arrange such

feast though they were not respectable enough to do

so. They even abused Abaji. Accused Nos.1 and 2 then

started scuffle with Abaji. Then, accused Nos.2, 3, 5

and 6 caught Abaji by his shirt and assaulted him.

5 Cr. Appeal 569/12

They started dragging him towards accused No.1's

house. They assaulted Abaji in the courtyard belonging

to accused No.1 using kicks and fists. Accused No.2

then asked other accused to keep holding Abaji. He

left and brought weapon 'Katti' (a long cutting

weapon) from his house. He gave one blow of Katti on

right side of head of Abaji. Accused No.3 gave a blow

of centering strip (a piece of wood) on Abaji's head.

When witness Balaji tried to rescue Abaji, he too was

assaulted using Katti on his right hand. Abaji fell

down and started bleeding. Thereafter, witnesses

Laxman, Balaji, Madhav and herself took Abaji to

Government Hospital, Bhokar. At about 11.00 p.m. they

reached there, but the Medical Officer on duty

declared Abaji dead on admission. She said, she then

went to Police Station and filed the complaint.

During cross-examination, it revealed that this victim

rather exaggerated her deposition in respect of the

first sentence in her deposition, when she said that

accused Nos.1 and 2 started scuffle with Abaji.

7. Prosecution witness No.5 is the second

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important eye witness. He too stated that after the

village feast was about to be over, at about 9-10

p.m., accused No.1 came there under influence of

liquor with other five accused. Abaji asked accused

No.1 to take meals, but accused No.1 started abusing

Abaji. He caught Abaji by collar and started dragging

him. Other five accused were protecting accused No.1

preventing people from intervening. Accused No.2 then

went to his house and brought Katti and dealt blow on

Abaji's head on the back side. Accused No.1 dealt one

blow of wooden plant. Accused Nos.4 to 6 kept holding

victim Abaji during the incident. Balaji came for

rescue of Abaji, but accused Nos.1 and 2 assaulted him

too. Even Abaji's wife Surekha was assaulted. Abaji

fell down bleeding. All accused ran away. Thereafter,

witness Balaji took Abaji to hospital in an auto-

rikshaw.

8. The third eye-witness is P.W.No.7 -Balaji.

He also stated that at 09.30 p.m. on the day of

incident, few people from host family were about to

take food. At that time, all accused came there and

7 Cr. Appeal 569/12

started abusing Abaji. When Abaji questioned, all

accused started scuffle with him and dragged him

towards accused No.1's house. They were holding Abaji

by his shirt. When he and other two witnesses tried to

intervene and requested not to assault Abaji, the

accused abused and threatened them. Accused No.2 then

told other accused to catch hold of victim Abaji. He

went to his house and brought Katti and then dealt a

blow on Abaji's head. Accused No.3-Sainath assaulted

Abaji by a stick on his head. Other accused,

assaulted Abaji by kicks and fists. Accused No.2

assaulted him also by using Katti. After the assault,

Abaji fell down. He and others took Abaji to the

Government Hospital, Bhokar, in an Auto-Rikshaw. But,

Abaji died at about 11.00 p.m. The Medical Officer

treated him for his injuries.

9. The last eye-witness is Prosecution Witness

No.10-Laxman. This witness stated that he had arranged

the feast. The meals went up to 09.00 p.m. At that

time, all accused came there and started asking victim

Abaji as to why he had arranged the feast. They also

8 Cr. Appeal 569/12

assaulted him. All of them then started dragging

Abaji towards courtyard of house of accused No.1.

Accused No.2 then went to his house and brought Katti.

He assaulted Abaji on his head. Accused No.3-Sainath

also assaulted Abaji. Abaji fell down and started

bleeding. Accused No.2 then assaulted Balaji using

Katti on his hand. Abaji was taken to the hospital

where he was declared dead. During cross-examination

of this witness, he admitted that his deposition about

accused No.2 assaulting Balaji by Katti on his hand,

did not appear in his police statement.

10. The next prosecution witness is the Medical

Officer-P.W.12, who stated that on 11.03.2011 while he

was on duty as a Medical Officer at Rural Hospital,

Bhokar, Abaji was brought to him. He found Abaji dead

before arrival. He informed about it to Police

immediately. He, thereafter, conducted post-mortem

examination on next day. He found following injuries

on Abaji's person :-

(i) Fracture right parietal bone 4cmx2cm obliquely.

(ii) Contused lacerated would on right parietal

9 Cr. Appeal 569/12

region 5 cm x 3 cm.

(iii)Contusion over occipital region 4 cm x 4 cm.

(iv) Contusion over middle back oblique three lines parallel 6 cm x 3 cm each directed

central to lateral downwards.

. He also found that there was hemorrhage in

the brain and cause of death was head injury. In

cross-examination, he admitted that injury Nos.1 & 2

are in-fact one injury.

11. The questions that arise for our

consideration are :-

(i) Whether all the accused had shared common object of causing death of Abaji? If

not, what was their common object, if their gathering was proved to be unlawful assembly?

                       (ii)            Who caused Abaji's death?

                       (iii)     If   accused   No.2   had   caused   Abaji's 

death, whether it was a case of murder or culpable homicide not amounting to murder?

12. We are inclined to believe the prosecution

witnesses, when they stated that all the accused came

there and started unprovoked verbal attack targeting

Abaji. They humiliated Abaji and ultimately assaulted

him. No sooner they committed such offence, their

10 Cr. Appeal 569/12

gathering became unlawful assembly. They overpowered

Abaji and they started to drag him to a particular

place. The common object of the assembly at that time

was to humiliate, abuse, to cause simple injury and to

drag Abaji to a particular place. Abaji did sustain

simple injuries on his back and on his head also.

Except injury Nos. 1 & 2, which is said to be one

injury, other injuries were simple in nature. Accused

No.3 picked up wooden plank, which was found lying at

the site. He used this plank to assault Abaji.

Witnesses stated that he dealt one blow using plank on

Abaji's head. Injury No.3 referred to above could be

the injury caused by accused No.3. Other injuries on

the back of Abaji could also be caused by accused No.3

utilizing plank (no eye witness, however, stated that

he saw accused No.3 delivering wooden plank blows on

the back of the victim). Nonetheless in the melee, we

assume that it was accused No.2, who had such weapon

and injuries which were likely to have caused by such

plank were found on the back of the victim. Again

accused No.3, did not cause grievous injury to the

victim, so whatever he did was in furtherence of

11 Cr. Appeal 569/12

common object of the unlawful assembly, which is

referred to above i.e. causing simple injuries and

dragging Abaji to a particular place.

13. The question in such situation arises as to

whether accused Nos. 1,3 to 6 shared any common object

with accused No.2. The witnesses stated very

categorically that accused No.2 in the midst of

assault left the assembly, saying that they should

keep holding the victim and he would come back.

Within few minutes, he came back with weapon in his

hands. As said above, the common object of this

assembly was to overpower and to drag forcibly Abaji

to a particular place and in order to do so, they

would cause simple injuries to Abaji. Abaji was

already overpowered. He was already held by other

accused. In such situation, accused No.2 appeared

there with deadly weapon in his hand. He delivered

one blow on Abaji's head. This was certainly

unexpected by other assailants. They never knew that

accused No.2 would come back with deadly weapon. They

also did not know that he would deliver fatal blow on

12 Cr. Appeal 569/12

Abaji's head. This happened suddenly. Accused No.2

could easily deliver blow on victim's head, because he

was already overpowered and his hands were pin-down by

other assailants. But it cannot be said that

assailants who had overpowered and the victim did so

for facilitating delivery of fatal blow on the

victim's head. It cannot be said that because they

held hands of the victim, accused No.2 could deliver

fatal blow on victim's head. What accused No.2 did

was thus outside the common object of the unlawful

assembly. Others should not be held vicariously liable

for the act, which was committed by accused No.2.

14. Now next question is - whether accused No.2

committed murder or culpable homicide not amounting to

murder. In our view, accused No.2 committed murder.

The defence tried to discredit prosecution witnesses

by asking in cross-examination to the Medical Officer

that injury No.1 would not have been possible if

cutting edge of Katti had been used for causing

injury. Indeed, had the cutting edge been used in the

assault, the injury would have been different in size

13 Cr. Appeal 569/12

and nature. Yet, we do not disbelieve the prosecution

witnesses when they stated that accused No.2 utilized

Katti in his hand for delivering one blow on victim's

head. We can assume that the assailant did not use the

cutting edge of the weapon at the time of assault. He

used back side of the Katti to deliver this blow. It

is because of this, the injury did not show any

incised injury. It was contused lacerated wound. The

blow behind this injury was so forceful that it caused

fracture to parietal bone and the victim succumbed to

death within short time. Thus, the assailant had

intention to cause injury, which was sufficient in

ordinary course of nature to cause death. Learned

Counsel for the appellants tried to assert that the

case could be brought within one of the exceptions to

Section 300 of the Indian Penal Code. But, having

regard to the facts of the case, we are not able to

place this case in any of the exceptions to Section

300 of the Indian Penal Code. This culpable homicide

was thus murder, for which accused No.2/appellant No.2

should be convicted. All other accused would get

benefit of doubt and therefore cannot be convicted for

14 Cr. Appeal 569/12

the offence punishable under section 302 r/w section

149 of the Indian Penal Code.

15. Therefore, the criminal appeal is partly

allowed. The operative order of judgment passed by

learned Additional Sessions Judge, Bhokar dated

16.07.2012 in Sessions Case No.28 of 2011 is

substituted by following order :-

i. Accused Nos. 1,3 to 6 are acquitted

for the offence punishable under section 302 read with section 149 of the Indian Penal Code.

ii. Accused No.2 is convicted for the

offence punishable under section 302 of the Indian Penal Code and sentenced to suffer

life imprisonment. He shall also pay fine of Rs.5000/- (Rupees Five Thousand), in default, to suffer rigorous imprisonment for six months.

iii. Accused Nos.1 to 6 are convicted for offence punishable under section 323 read with section 149 of the Indian Penal and sentenced to suffer rigorous imprisonment for

one month each and to pay fine of Rs.500/- (Rupees Five Hundred) each, in default, to suffer further rigorous imprisonment for 15 days.

iv. Accused Nos.1 to 6 are acquitted for the offence punishable under section 504 & 506 read with section 149 of the Indian Penal Code and under section 37 (1) (3)/135 of the

15 Cr. Appeal 569/12

Bombay Police Act.

                    v.       All   the   sentences   shall   run 
                    concurrently.




                                                 
                    vi.      Set off be given to the the accused 

for the period of detention already undergone by them.

vii. The muddemal property being worthless be destroyed after the period of appeal is over.

[INDIRA K. JAIN,J.] [A.V. NIRGUDE,J.]

snk/2016/ MAR16/ crap569.12