Bombay High Court
Tukaram Marotrao Jadhav vs The State Of Maharashtra on 5 December, 2017
Bench: T.V. Nalawade
1 APEAL374.2001 & ors
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 390 OF 2001
Bharat S/o. Neminath Salve,
Age : 38 years, Occu. Service,
As a headmaster, R/o. Shastrinagar, Hingoli,
Dist. Hingoli. ... Appellant
VERSUS
The State of Maharashtra ... Respondent
..........
Mr R. S. Deshmukh, Advocate for the appellant
Mr V. S. Badakh, APP for respondent/State
.............
WITH
CRIMINAL APPEAL NO. 374 OF 2001
Tukaram S/o Marotrao Jadhav,
Age : 52 years, Occu. Agriculture,
R/o. Hingoli, Dist. Hingoli. ... Appellant
VERSUS
The State of Maharashtra ... Respondent
..........
Mr R. S. Shinde, Advocate for the appellant
Mr V. S. Badakh, APP for respondent/State
.............
WITH
CRIMINAL APPEAL NO. 497 OF 2001
The State of Maharashtra,
Through Sanjay S/o Annarao Takalgavankar,
Age : 33 years, Occu. Service,
R/o. Hingoli, Taluka. Hingoli. ... Appellant
(Orig. Complainant)
VERSUS
::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 03:20:29 :::
2 APEAL374.2001 & ors
1. The State of Maharashtra
2. Tukaram S/o Marotrao Jadhav,
Age : 52 years, Occu. Agril.,
R/o. Shivajinagar, Hingoli,
Tq. Hingoli, Dist. Hingoli. ... Respondents
..........
Mr V. S. Badakh, APP for the appellant/State
Mr R. S. Shinde, APP for respondent/State
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
RESERVED ON : 02.11.2017.
PRONOUNCED ON : 05.12.2017
JUDGMENT (PER A. M. DHAVALE, J.) :
1. In Sessions Case No. 25/1999, Bharat Salve, aged 36 years,
a Headmaster and Tukaram Jadhav, aged 52 years, a President of
educational institute, were prosecuted for committing murder of one
Sanjay S. Kshirsagar (hereinafter referred to as "SSK") by inflicting a
blow of tocha on his chest and voluntarily causing simple hurt by
tocha on hands and legs and for intentionally insulting in order to
provoke breach of peace and criminally intimidating the witnesses
being offences punishable u/s 302 r/w 34, 324/34, 323/34, 504/34,
506/34 of IPC. By judgment dt. 31.08.2001, ld. Addl. Sessions
Judge, Hingoli convicted accused no. 1 - Bharat u/s 302/34 IPC and
3 APEAL374.2001 & ors
sentenced him to suffer rigorous imprisonment for life and to pay fine
of Rs. 1,000/-, in default, RI for six months. He was further convicted
u/s 324 IPC and sentenced to suffer RI for one year. He was further
convicted u/s 506 IPC and sentenced to suffer RI for six months. By
the said judgment, accused no. 2 - Tukaram Jadhav was convicted
u/s 326/34 IPC and sentenced to suffer RI for five years and to pay
fine of Rs. 500/-, in default, RI for six months. He was further
convicted u/s 323/34 IPC and sentenced to suffer SI till rising of the
court and to pay fine of Rs.500/-, in default, RI for three months
months. He was further convicted u/s 506/34 IPC and sentenced to
undergo RI for six months.
2. Being aggrieved by this judgment, accused no. 1 - Bharat
Salve has preferred Criminal Appeal No. 390/2001, accused no. 2 -
Tukaram Jadhav has filed Criminal Appeal No. 374/2001 while the
State has presented Criminal Appeal No. 497/2001 against acquittal
of accused no. 2 u/s 302/34 IPC.
3. Since all the appeals arise out of one judgment, they are
heard together and are disposed of by this common judgment. For
the sake of convenience, the parties are herein after referred to as
Bharat-A1 and Tukaram-A2.
4 APEAL374.2001 & ors
4. The prosecution was initiated on the basis of FIR lodged by
PW7 Sanjay Takalgavankar, the complainant (hereinafter referred to
as "PW7-Sanjay T") on 18.11.1998 at 06:30 p.m. at Hingoli Police
Station and on the basis of the same, crime was registered at C.R.
No.146/1998 for offence u/s 302, 324, 323, 504, 506 r/w 34 IPC. As
per FIR, Tukaram-A2 was the President of educational institution,
which was running Vidyasagar Vidyalaya at Khanapur Chitta, of
which Bharat-A1 was Headmaster. PW7- Sanjay T as well as deceased
SSK and some other witnesses were working there as teachers. In the
FIR, it was alleged that, Tukaram-A2 had obtained signatures of the
teachers on blank cheques and those were encashed by him. When
PW7-Sanjay T & other teachers told Tukaram-A2 that they would
encash their own cheques, Tukaram-A2 threatened several times to
dismiss them from service. Hence the teachers made complaint to the
Education Officer and also went on hunger strike. On 18.11.1998 at
08:30 a.m., deceased SSK, PW7-Sanjay T, Malkar, Subhash
Suryawanshi and one Shelke, all teachers were proceeding to the
school in auto-rickshaw at Nanded Naka. Both the accused met them.
The teachers made inquiry with the accused as to what had happened
with their service book. That time, accused nos. 1 and 2 challenged
them and asked whether they were owners of the school and that
5 APEAL374.2001 & ors
they could not cause any loss to them. Thereafter, all the teachers
joined the school and on that day one another teacher by name
Subhash Tale received by post a notice of termination of his services.
He brought this fact to the notice of all the teachers. Hence, in the
recess, the teachers met the President Tukaram-A2. The President
challenged them that they could do whatever they wanted. After the
closure of the school, the teachers sent one teacher Shelke to Police
Station and thereafter PW7-Sanjay T, deceased - SSK, Subhash Tale,
Sudhakar Malkar, Subhash Suryawanshi were proceeding in Auto-
rickshaw at 4:45 p.m. They got down at Nanded Naka in Hngoli and
were waiting for arrival of other teachers. That time, both the
accused came there in auto-rickshaw and got down in front of them.
The teachers made inquiry with both the accused why Mr Tale was
terminated. Then both the accused challenged them and rushed at
them to assault. Then the other teachers held them and when one of
the teachers Subhash Suryawanshi came forward to rescue, Tukaram-
A2 assaulted him. Then Tukaram-A2 held deceased-SSK and Bharat-
A1 inflicted a blow of tocha. Deceased-SSK raised shouts and fell
down. PW7- Sanjay T requested the Headmaster Bharat-A1 not to
assault, then he inflicted a blow of tocha on his left hand palm on
both the sides and also on his stomach. PW7-Takalgavankar raised
shouts. Teachers and several persons gathered there. When the
6 APEAL374.2001 & ors
teachers were trying to control the President by holding him, he tried
to run away and he fell down and sustained trauma. PW7-Sanjay T
and Subhash Suryawanshi reported the matter to the police that both
the accused killed SSK and had also intimidated them. PW7 lodged
FIR Exh. 115 at 06:30 p.m.
5. On the basis of said FIR, crime was registered at C.R. No.
146/1998 for offence u/s 302, 324, 323, 504, 506 r/w 34 of IPC and
the same was investigated into by PW13 - API Musale. Earlier to the
FIR, there was a telephonic intimation to the police about some
quarrel taking place at Nanded Octroi Post. PW13 API Musale
proceeded to the spot. He found that, SSK was lying on the road and
Tukaram-A2 was sitting at some distance from him. He put both of
them in auto-rickshaw and forwarded them along with his constable
to the hospital. He saw Bharat-A1 standing there with a tocha in his
hand. He sent him with police to the police station. When he came
to civil hospital, SSK was reported dead and accused no. 2 was
admitted in the hospital. PW7 - Sanjay T was also injured and
treated. After recording the FIR Exh. 115, he carried out
investigation. He arrested Bharat-A1 and seized from him the
weapon of offence tocha as well as clothes on his person having
blood stains. During the investigation, he recorded the statement of
7 APEAL374.2001 & ors
material witnesses and collected medical papers including PM notes.
He drew spot panchanama and inquest panchanama. He also seized
blood stained clothes of deceased-SSK and of PW7-Sanjay T. He
collected blood samples of the accused and the witnesses and
obtained opinion of the Medical Officer as to whether the injury was
possible by weapon of offence 'tocha'. He seized some record of
Vidyasagar Vidyalaya, Khanapur Chitta and seized blood stained
clothes of BharatA1 & Tukaram-A2. He forwarded the seized clothes
and blood samples to CA office at Aurangabad for analysis. He got a
topographical map drawn from the revenue officer and after receipt
of CA report, he submitted charge-sheet in the court. [It is pertinent
to note here that, there was a counter case filed on FIR of A2 -
Tukaram against the prosecution witnesses. The said case had
resulted into conviction but in the high court the appeal was allowed
and the witnesses herein were acquitted.] The case was duly
committed to the court of Sessions. The ld. Addl. Sessions Judge
framed charge at Exh. 11 against both the accused. The prosecution
examined 13 witnesses.
6. It is the defence of the accused that, the performance of the
teachers in question was not satisfactory and their behaviour was also
indisciplined and arrogant. PW7-Sanjay T was leader of those
8 APEAL374.2001 & ors
teachers. He was previously a journalist and continuing the said work
and the accused were required to issue notice to him and other
teachers on account of their poor performance and behaviour. The
witnesses had a grudge against A1 & A2. Subhash was a probationer
and since his performance was not good, his services were terminated
as per the procedure. When the accused came to the spot, PW7-
Sanjay T and other teachers pulled them down and started assaulting
them. PW7-Sanjay T gave a kick which accidentally hit deceased-SSK
as a result of which, SSK fell down on a wooden box having pointed
nails and he died. The accused had not assaulted him and other
witnesses. On the other hand, the teachers had assaulted both the
accused for which they were prosecuted. PW7-Sanjay T created terror
in the minds of other probationery teachers that like Subhash Tale,
they would also be terminated by the management and, therefore,
they conspired to assault the accused and PW7-Sanjay T lodged false
report against them. The defence has examined one Medical Officer.
7. Heard ld. Advocate Shri. R. S. Deshmukh for the appellants
and learned APP Shri. V. S. Badakh for the State. They have taken us
through the voluminous evidence on record and the reasoning given
by the trial Court. Mr R. S. Deshmukh challenged the conviction on
the following main grounds:
9 APEAL374.2001 & ors
(i) There is documentary record to show that, the
performance and behaviour of PW7-Sanjay T,
deceased SKK and other teachers was not satisfactory
and both the accused were required to issue notices to
them to show cause. They were residing beyond the
limits of town contrary to the rules.
(ii) Subhash Tale was terminated as he was probationer
and his performance was not satisfactory. His
termination triggered the situation and seven
probationary teachers scuffled and assaulted the
Headmaster of the school and President of the
institution.
(iii) Accused no. 1 is having a height of 5 ft. and weighing
35 kg only, whereas accused no. 2 was old aged
person with one eyed blindness.
(iv) It is not probable that the accused could have
assaulted the large number of teachers. It is also
improbable that the Headmaster was carrying tocha in
his pant pocket. He pointed out that the accused have
issued several notices to the seven probationary
teachers who were trying to dominate the school
management.
(v) The evidence of material witnesses is not cogent,
consistent and reliable. Both the accused sustained
injuries for which there is no explanation coming
forward from the prosecution witnesses. Tocha was
10 APEAL374.2001 & ors
having a blood of group B whereas; the deceased was
having blood group A. Therefore, the weapon of
offence has not been proved. The injury is not possible
by tocha. No previous injury was sustained by any
witness and accused No. 2 could have been convicted
u/s 326 of IPC. The spot was a public place but no
independent witnesses were examined. There is
inordinate delay of one hour in lodging the FIR. The
FIR was lodged after deliberation and concoction.
Accused no. 1 was insisting the police officer to record
his FIR but since API - Musale was knowing PW7-
Sanjay T, his FIR was not recorded earlier. The rest of
the injuries of PW7, PW10 & deceased SSK were
possible by fall. PW7, PW10 & deceased had reason
to assault the accused and falsely implicate them
whereas the accused had no reason to assault the
teachers and PW10 & PW7. There is no reliable
evidence to prove the discoveries and the chemical
analysis of the articles.
(vi) In the alternative, he argued that, if at all it is held
that accused had inflicted a blow of tocha which
resulted into death of SSK, Bharat A1 he had no
intention to kill and the facts indicated that his acts
would not amount to offence u/s 302 IPC. He has
already undergone sentence of 3½ years and he is
now aged whereas; accused no. 2 is aged about 75
years.
11 APEAL374.2001 & ors
(vii) He therefore submitted that the State appeal be
dismissed and both the appeals of the accused be
allowed. Conviction of accused no. 1 be altered to
some minor offence.
8. Per contra, ld. APP Shri. V. S. Badakh argued that there is
consistent evidence of PW7 & PW10 that both the accused were
harassing the probationary teachers and they had made complaint
against them to the Education Officer. They had held hunger strike
against them. The instructions were given to the bank and the
Education Officer that the operation of their bank accounts should be
stopped. The accused were creating false record so as to terminate
the services of the probationary teachers who were not acting as per
their wishes. On the day of the incident, both the accused came there.
There was altercation between the accused on one side and PW7 SSK
& PW10 on the other. The other teachers were not involved in the
fight. Therefore, it was not a fight between two versus seven. There
is consistent evidence that, Bharat-A1 gave two blows of tocha on the
chest of deceased - SSK as a result of which he died on the spot. The
police officer who arrived on the spot immediately after the incident
had seen the tocha in the hands of accused no. 1. The accused have
sustained minor injuries. The clothes of the accused having blood
stains & the weapon of offence tocha were recovered from accused
12 APEAL374.2001 & ors
no. 1. It was also having blood stains since tocha was first used for
assaulting SSK and thereafter was used for assaulting PW7-Sanjay T,
it was not having blood stains of SSK. There is no material to
support the defence of the accused. Mere suggestions put to the
witnesses cannot be considered as evidence. The ld. trial Judge has
rightly convicted accused no.1 u/s 302 of IPC but accused no. 2
should have also been convicted u/s 302/34 IPC. Therefore, he
argued that the state appeal be allowed and the appeals of the
accused nos. 1 and 2 be dismissed and the accused no. 2 be punished
accordingly.
9. On the basis of the evidence on record and the rival
submissions made, the points for our consideration with our findings
thereon are as follows:
Sr. Points Findings
No.
1 Whether the deceased SSK met with a Proved.
homicidal death?
2 Whether the accused nos. 1 and 2 in Bharat A1 alone
furtherance of their common intention caused culpable
committed murder of SSK? homicide not
amounting to
murder.
3 Whether the accused nos. 1 and 2 in Bharat A1 alone
furtherance of their common intention caused simple hurt
voluntarily caused grievous hurt to PW7- by tocha in private
Sanjay T? defence.
13 APEAL374.2001 & ors
4 Whether accused nos. 1 and 2 in Hurt caused in
furtherance of their common intention right of private
voluntarily caused simple hurt to PW7 & defence.
PW10 by deadly weapon?
5 Whether the accused nos. 1 and 2 in Not proved.
furtherance of their common intention
intentionally insulted PW7-Sanjay T and
deceased SSK so as to provoke them to
breach public piece?
6 Whether accused nos. 1 and 2 in Not proved.
furtherance of their common intention
criminally intimidated deceased SSK, PW7
& PW10?
7 Whether any interference is warranted in Yes. Conviction of
the conviction and or sentence awarded by accused no. 2 -
the trial Court? Tukaram needs to
be set aside. A1 -
Bharat deserves to
be convicted u/s
304-I IPC.
8 What order? Cri. Appeal No.
374/2001 is
allowed. Cri.
Appeal No.
497/2001 is
dismissed. Cri.
Appeal No.
390/2001 is partly
allowed as per final
order.
REASONS
10. The prosecution has examined 13 witnesses and produced
number of documents which may be conveniently grouped as
follows:
14 APEAL374.2001 & ors
[I] Injured Eye-witnesses:
(i) PW7 - Sanjay T. Proved FIR Exh. 115.
(ii) Complaints made by him against accused Exh. 117 to
Exh. 122.
(iii) PW10 - Subhash Suryawanshi proved his statement
u/s 164, Exh. 185.
[II] Medical Evidence : -
(i) PW1 - Dr. Nilkante, he has proved PM notes of Sanjay
Kshirsagar (SSK) (Exh. 90).
(ii) Injury Certificate of PW7 Sanjay T (Exh. 91).
(iii) Injury Certificate of PW10 Suryawanshi (Exh. 92).
(iv) Injury Certificate of accused no. 2 (Exh.95).
[III] Other Witnesses : -
(i) PW6 - ASI Prabhakar, who came to the spot
immediately after the incident and brought SSK and
accused no. 2 in Auto Rickshaw to the hospital. That
time, accused no. 1 possessing tocha was taken to the
Police Station.
(ii) PW2 - Rajkumar, panch to the seizure of tocha from
accused no. 1 (article no. 1) and seizure of blood
stained clothes of accused no. 1 (articles no. 2 and 3).
Seizure (Exh. 103). He admitted that, accused no. 1
15 APEAL374.2001 & ors
Bharat was having a contusion on his shoulder.
(iii) PW3 Raju, panch to the seizure of blood stained
clothes of PW7-Sanjay T (Panchanama Exh. 106).
(iv) PW4 spot panch Sanjay Jaiswal. Panchanama and
seizure of pair of chappals of the deceased near the
statue of Agrasen Maharaj, was conducted on the next
date of the incident at 6.00 a.m. He admitted that,
there was one wooden box at a distance of 25-30 ft. of
the statue but denied that it was having nails.
(v) PW5-Panch Sunil Jagtap. In his presence blood
stained Shirt, Baniyan and Dhotar of accused no. 2
were seized from his person on 24.11.1998 under
seizure memorandum Exh. 111. He admitted that, at
that time, accused no.2 was having injury. (It is
inherently improbable that, accused no.2 who was
President of a trust running the school would wear the
same clothes on 24.11.98 which he was wearing on
18.11.98).
(vi) PW8 Education Officer - Vedprakash. He has produced
several complaints received from the teachers as well
as from the accused against each other. Exh. 158 to
179 are the complaints / actions against the accused
whereas; the documents Exh.169 to 180 are the
documents in favour of the accused against the
witnesses.
16 APEAL374.2001 & ors
(vii) PW9 - Police Constable Narendra Chandel, Carrier,
who carried the seized articles to the CA office along
with covering letter copy Exh. 182 and 183.
(viii)PW11 - Keshav, panch to the inquest panchanama
Exh.187.
(ix) PW12 - Vijaysing, the seizure of clothes of the
deceased brought by a Constable (Exh. 189).
(x) PW13 - API - Musale, the Investigating Officer. At the
time of incident he had received a message from a
Constable that the quarrel was going on and he had
visited the spot within 1 to 2 minutes. He found SSK
lying there (perhaps dead), accused. no. 2 Tukaram
sitting there and accused no. 1 present with a tocha in
his hand. He forwarded the injured accused no. 2
Tukaram and SSK in a Auto Rickshaw with PW6 -
Prabhakar to the hospital and brought accused no. 1
Bharat with tocha to police station. He has recorded
FIR Exh. 115, made various seizures recorded herein
above and forwarded the seized articles to the C.A.
He has proved spot panchanama Exh. 109.
11. Though the incident was small lasting for not more than
10-15 minutes, the evidence is voluminous. This paper book is of 657
pages. The evidence and documents are of 406 pages and the
judgment is of 89 pages. Even statements u/s 313 are around 90
17 APEAL374.2001 & ors
pages. It shows that, the ld. trial Judge did not hold effective control
over the proceedings and the advocates were permitted to cross-
examine without any control. The evidence and cross-examination is
with respect to irrelevant or remotely relevant matters with more
emphasis on bringing on record the disputes between the parties.
The evidence of material eye-witnesses PW7 is of 51 pages and that
of PW10 is 30 pages. By way of illustration, we observe that, Dr.
Abasaheb Nilkante was asked whether the right lung is on right side
of chest and left lung is on left side chest, he answered it and it was
recorded. It is necessary that the trial Judges should hold effective
control over the proceedings and should not permit the lawyers to
take the proceedings in their hand. Though fair opportunity should
be given to the parties and their lawyers, they cannot be permitted to
protract the litigation with uncontrolled, unlimited cross.
Point No. 1 : Whether death of SSK is homicidal.
12. Evidence of PW1 Dr. Nilkante shows that, immediately
after the incident on 18.11.98 at 5:45 p.m. SSK was brought to him
dead and he conducted post-mortem thereon. He noticed following
injuries on his person.
1. Stab wound on right side of chest in third inter
costal space, 4 cm from margin of sternum of
size 0.3 cm. X 0.3 circular in shape, about 3
cm deep, passing through right lung and
18 APEAL374.2001 & ors
puncturing right atrium of Heart, probably
caused by sharp pointed object. Nature of the
injury - Grievous.
2. Laceration - on right side of the chest in
second inter costal space, 4 cm from margin of
sternum, size - 0.3 cm. into 0.5 cm. Probably
caused by sharp pointed object, nature is
simple.
3. Laceration on left scapula, 0.3 cm. X 0.3 cm. X
0.4 cm probably caused by sharp pointed
object. Nature is simple.
4. Abrasion - left knee joint anteriorly two in
number 2 cm x 1 cm and 1 cm x 1 cm.
probably caused by hard and blunt object.
Nature is simple.
5. Abrasion - right nostril centrally, 0.4 cm. X
0.3 cm. probably caused by hard and blunt
object. Nature is simple.
13. All the above referred injuries were ante mortem in nature.
He also noticed internal corresponding injuries as follows..
1. Stab injury to the wall of thorax and
2. Stab injury to right plura.
3. Stab injury to the right lung.
4. Stab injury to pericardium, I also found 400
ml. of blood in two pericardium.
5. Stab injury to the right atrium of the heart.
Both the chambers of the Heart were found
empty.
19 APEAL374.2001 & ors
14. It is obvious that, injuries no. 4 and 5 abrasions to left knee
and right nostril are insignificant. The small laceration on left scapula
0.3 x 0.3 x 0.4 cm by sharp object is significant only for the purpose
of showing use of a pointed object. Injury no. 1 was fatal injury. It is
a stab wound of the size 0.3 x 0.3 cm with depth of 8 cm. It has
punctured the right lung and right atrium and the internal
examination showed that it had also punctured right plura, lung and
pericardium. The PM notes at Exh. 182 discloses the cause of death
as the death occurred due to cardio-respirary arrest, due to injury to
heart. There is no dispute that SSK sustained injury at the time of
incident at about 5:00 to 5:30 p.m. at Nanded Naka, Hingoli. It was
a punctured wound and as a result of said injury, he has died instant
death. The evidence of Medical Officer discloses these facts and
those are not in dispute. The only question is how the punctured
wound was caused to SSK. According to evidence of PW7-Sanjay T
and PW10 Suryawanshi, accused no. 1 at the time of incident
inflicted two blows of tocha (in fact it is not a tocha, it is having a
hole and it is a piercing instrument used for stitching gunny bags).
It is about 8 cm in length. According to the defence, 7 teachers
including PW7 & PW10 were assaulting accused nos. 1 and 2 and
during the assault, PW7 gave a kick to accused no. 1 which
accidentally hit SSK on his waist and SSK fell on pointed nails fixed
20 APEAL374.2001 & ors
in the wooden logs and has thereby died. The suggestions to that
effect made to the witnesses are denied by PW7 & PW10.
15. In view of the above facts, the issue whether it was a
homicidal death or not and whether both the accused were involved
in commission of murder or not will have to be decided together.
Point No. 2 : Whether A1 & A2 committed murder.
16. The unchallenged evidence on record shows that, Tukaram-
A2 was the President of the trust who was running a school by name
Vidyasagar Vidyalaya at Khanapur Chitta, Tq. Hingoli, which is about
6-7 kms. away from Hingoli. Bharat-A1 was Headmaster. The school
was having 20 teachers, one Headmaster, four peons and one clerk.
It is not in dispute that the management in the form of accused no. 2
as a President and accused No. 1 as a Headmaster was in conflict
with seven teachers namely PW7-Sanjay T, PW10 Subhash
Suryawanshi, deceased SSK, Subhash Tale (who was terminated on
the date of incident) and Shelke, Ambhore and Malkar. It is
necessary to bring on record the nature of allegations made by them
against each other and the documentary record to that effect.
21 APEAL374.2001 & ors
17. Bharat-A1 had issued notices dt. 13.10.98 to deceased SSK
Exh. 28 (PB-325) showing that he was absent on duty from 10.10.98
in contravention of the service rules and his performance as a teacher
was not satisfactory. He was not completing the syllabus and he had
misappropriated the fees collected. He gave reply dt.06.11.98 (Exh.
129) denying all the allegations. He pointed out that, he had issued
a notice dt. 10.10.98 for going on hunger strike. Accused no. 1 was
forcibly taking signatures of the students against him and was not
accepting his reply which was required to be sent by RP.A.D. He
pointed out that the fees of exam of Rs. 10/- was taken but accused
no. 1 directed him to collect Rs. 15/- per student whereas; the receipt
given to the student was of Rs. 10/-. The students were also told that
they would not get receipt but they would acknowledge the same. He
alleged that, accused no. 1 was using separate registers. He stated
that, if he would have misappropriated the fees, the students would
not have been allowed to appear for the exam. This notice was
preceded by another notice dt. 19.09.98 (Exh. 133) regarding
disorderly behaviour and notice dt.09.10.98 for not depositing exam
fees (Exh. 135). He was again served with a notice dt. 26.10.98 for
his absence from 10.10.98 and he was informed that he would not be
permitted to join the services without the permission of the President
and/or Education Officer.
22 APEAL374.2001 & ors
18. Accused No. 2 had served Subhash Tale with a notice of
termination dt. 18.11.98 (Exh. 130, PB-329) and notice in Marathi is
at Exh. 152, PB 365. It shows that he was a probationer, as he could
not perform satisfactorily, his services were terminated. He was also
served with a notice dt. 13.10.98 (Exh. 140, page 346). Surprisingly,
he was directed to show improvement in his performance for the next
session but his services were terminated before beginning of the next
session. He was also served with a notice dt. 26.10.98 (Exh. 147 PB-
357). It was regarding his absence, leaving headquarters, working
with black ribbon and breach of service rules.
19. Accused no. 1 Bharat had also differences with PW7-Sanjay
T. He had lodged report with Police of Basamba dt.14.08.98 (Exh.
132) and had served him with a notice dt. 02.10.98 (Exh. 134, PB-
337), notice dt. 26.10.98 (Exh. 145, PB-353) and notice dt. 26.10.98
(Exh. 148, PB-359). These notices are in respect of performance and
behavior of PW7-Sanjay T and use of arrogant & threatening
language by him.
20. Bharat A1 had served PW10 Suryawanshi with notices dt.
13.10.98 (Exh. 137, PB-341) and 26.10.98 (Exh. 144, PB-352).
23 APEAL374.2001 & ors
There are complaints that, he was collecting signatures of students on
blank note books. His performance as a teacher was not satisfactory.
He was not completing the syllabus and he was remaining absent.
He was leaving the headquarters without permission and he was
absent from 10.10.98. Similarly, there are notices dt. 13.10.98 (Exh.
138, PB-343) and 26.10.98 (Exh. 146, PB-355) to Mr. Shelke and
notice 12.10.98 (Exh. 139, PB-345) and notice dt. 26.10.98 (Exh.
149, PB-361) to Mr. Ambhore. Similar notices dt. 13.10.98 and
26.10.98 (Exhs. 141 & 143, PB-347 & 351) were issued to Mr.Malkar.
Besides, common circularS dt. 27.10.98 (Exh. 150 & 151, PB-363 &
364) were issued against all the teachers and one complaint was filed
at the police station against five teachers (Exh. 136, PB-339).
21. There are several allegations and complaints from the
teachers against accused nos. 1 and 2 as well. Those were brought
on record in the evidence of PW8 - Vedprakash. Those are as follows.
[i] Exh. 158. - Letter to API, Hingoli by Education Officer
dt.04.12.1998 about registration of crime against the
Principal and teachers. (It is subsequent to the incident
and hence insignificant).
[ii] Exh. 159. - Complaint of Mr. Malkar against accused Nos. 1
and 2 about economical harassment, taking signatures on
blank cheques and threatening to terminate his services.
24 APEAL374.2001 & ors
[iii] Notice by PW7-Sanjay T, PW10-Subhash Suryawanshi,
Mr Shelke & Mr Malkar to the Education Officer dt.
07.09.98 (Exh. 160) to go on hunger strike for economical
harassment and arrogant behaviour by the accused and
about registration of crime against accused no. 1. Reply by
accused no. 1 undertaking to comply with the directions of
Education Officer (Exh. 162, PB-395). Letter by Education
Officer to deceased SSK dt. 12.10.98 (Exh. 163, PB-396)
for withdrawing the hunger strike in view of undertaking of
accused no. 1.
[iv] Show-cause notice by Education Officer dt. 30.10.98 to
accused nos. 1 and 2 (Exh. 164) with respect to the
allegations by the teachers against them. Report of
Education Officer to Dy. Director of Education, Aurangabad
dt.27.11.98 (Exh. 166, PB-402) about the hostile
atmosphere against the management of the school by the
teaching staff.
[v] Order of Education Officer dt. 21.11.98 (Exh. 167)
appointing a senior teacher as I/c Headmaster (not relevant
as it is subsequent to the event). Order of granting
permission to suspend accused no. 1 issued by Education
Officer dt.04.12.98 (Exh. 168, PB-408) (subsequent event).
Exh. 169 & 170 are copies of notices issued to PW7-Sanjay
T by Bharat-A1. Exh. 171 is for taking action of freezing
the salary of PW7, dt. 18.09.98. Exh. 172 is the copy of
notice by Headmaster to PW7 about his performance. Exh.
177 is a notice by accused no.1 to Subhash Tale and Exh.
25 APEAL374.2001 & ors
177 & 178 are notices to Subhash Tale. Exh. 179 & 180 are
the copies of the notices served by accused no. 1 on
13.10.98 and 26.10.98 on deceased Kshirsagar (SSK). For
the purpose of this case, it is not necessary to find out
whose allegations are true and whose allegation are false
but it is certain that the relations between management and
some of the teachers were very much strained. Accused no.
1 during the short period of around two months had issued
23 notices to 7 teachers. It appears that, as PW7-Sanjay T,
PW10-Suryawanshi and some other teachers were making
complaints against accused nos. 1 and 2, it was reaction of
accused no. 1. There is no material to find out whether the
allegations made by accused no. 1 against the teachers
were true or false. Similarly, the prosecution has not
collected documentary evidence to substantiate the
allegations made by PW7, PW10, deceased SSK and other
teachers against accused nos. 1 and 2. When accused nos.
1 and 2 were arrested, no search of their houses was taken
to trace out blank signed cheques allegedly issued by PW7,
PW10 and other teachers. It is certain that, the relations
between teaching staff and the management (accused nos.
1 & 2) were very much strained but after all they were
teachers, they are not criminals.
22. The evidence of PW7 and PW10 shows a small incident,
though relevant but not significant, which allegedly took place on
18.11.98 at 8:30 a.m. They have deposed that, on the day of
incident, at 8:30 a.m. while going to the school, they met both the
26 APEAL374.2001 & ors
accused near the octroi post and they made inquiry with them about
their service books. The significance of the service book is that, any
adverse remarks given to the employees are required to be noted in
the service book. As per rules, copy of service book is to be provided
to the employee and the same should be updated from time to time.
Since the witnesses PW7, PW10 and others were apprehending the
false record being created by them, they might have made inquiry
about their service book and there was arrogant reply from accused
nos. 1 and 2 to them. Nothing further happened there. It is not a
significant event.
23. On that day, during the working hours, Asst. Teacher
Subhash Tale was a probationer, who had received a notice sent by
RP.A.D. whereby his services were terminated. According to PW7,
PW10 and other teachers, his services were terminated with
vindictive attitude and for different reasons. Subhash Tale told them
that accused no. 2 was demanding money and as he did not pay the
money, his services were terminated. Whereas; according to accused
nos. 1 and 2, since his performance was not satisfactory, his
probation was not completed satisfactorily and his services were
terminated. Be that as it may, PW7 stated that, Subhash Tale made
inquiry with accused no. 2 - President as to why his services were
27 APEAL374.2001 & ors
terminated and the President told him that, he could do whatever he
wanted to do. On same day, the aggrieved teachers prepared a
report and sent it to the Police Station, Hingoli through Asst. Teacher
- Mr Shelke.
24. After the school was over at about 4:30 or 4:45 pm, PW7,
PW10 along with Subhash Tale, deceased SSK & Malkar went to
Nanded Naka by sharing auto-rickshaw and they were waiting there
for other teachers for proceeding further. At about 05:10 to 05:15
p.m., Bharat-A1 (Headmaster) and Tukaram-A2 (President) came
there by auto rickshaw. These facts are not in dispute.
25. Though it was argued that, Rickshaw of the accused was
halted on the other end of the bridge, this is improbable for two
reasons that; (i) the said spot is far away from the octroi post where
the teachers were waiting and (ii) there was no suggestion that the
auto-rickshaw was halted by the teachers. It is very material to note
that, none of the teachers was armed with any weapon and
apparently there was no prior concert between the teachers to catch
hold both the accused and assault them. Thereafter, accused nos.1
and 2 met them and PW7 and PW10 stated that they accosted them
as to why Subhash Tale's services were terminated. Whereas;
28 APEAL374.2001 & ors
according to accused they were pulled out of the auto-rickshaw. The
accused are claiming that, there were 7 teachers, whereas; PW7 and
PW10 stated that there were only 5 teachers including them. Even as
per their evidence, there was no participation by Mr. Malkar and
Subhash Tale whereas; the accused suggested that, seven teachers
were assaulting them. It was argued that, it was an uneven battle of
seven versus two where the teachers were young and stout and
accused nos. 1 and 2 were weak and small in number. We find that,
there was no premeditation on the part of any party to pick up a
quarrel and assault each other. When PW7 and PW10 accosted the
accused, their ego was hurt and there was heated verbal exchange. It
is not material as to what exact words were used and who started the
quarrel but it is certain that there was a scuffle with some
manhandling and giving of blows by hands and legs between the
parties.
26. As per evidence of PW1 - Dr. Nilkante, PW7 has sustained
two lacerated wounds on palm and dorsal aspects and one laceration
on abdomen by sharp object. As per his evidence, these injuries were
caused by accused no. 1-Bharat by means of tocha (article no. 1).
Doctor Nilkante has given opinion that the injuries were possible by
the said weapon. These injuries are not having depth and are not
29 APEAL374.2001 & ors
serious.
27. PW10 Suryawanshi had deposed that accused no. 2
Tukaram had assaulted and caused scratches to his left hand & he
had sustained one contusion on his left little finger, five abrasions
caused by nails scratchings and one contusion on lower lip. The
injuries of PW10 corroborates the evidence of PW10.
28. Accused no. 2 had sustained one laceration on tip of left
nostril. One contusion of 1x2" cm on left shoulder and one swelling
and deformity on left shoulder 2 x 1 cm. (this deformity is attributed
to old fracture and not caused in that incident). Contusion 1 x 4 cm.
on left arm. Considering the nature of these injuries, it is clear that it
was a scuffle, manhandling and assault of minor nature.
29. PW2 has admitted that, accused no. 1 was also having a
contusion on his right shoulder. There is no medical evidence to that
effect but PW2 has admitted this fact. Considering the nature of
injuries, it is certain that accused nos. 1 and 2 have sustained minor
injuries small in number. Those could not have been caused by
assault by seven persons. The evidence of PW7 & PW10 shows that,
only three persons were involved in the incident. The accused have
30 APEAL374.2001 & ors
given no role to SSK, Mr Malkar, Shelke, Ambhore and Tale.
According to PW7 & PW10, Mr Shelke and Mr Ambhore were not
present there. Besides filing of copy of FIR Exh. 122, the accused
have not led any evidence. There is no witness examined nor the
suggestions given to PW7 and PW10 were admitted. There is some
substance in the contention that, PW 7 and PW10 have not explained
the injuries sustained by PW1 and PW2 but accused nos. 1 and 2 in
the FIR have not even disclosed the death of SSK at the time of
incident. After carefully considering the evidence, we find that, but
for the fatal injury caused to SSK, the incident was a minor scuffle
with assault of simple nature in sudden unpremeditated fight.
30. The evidence of PW1 shows that, he had sustained three
lacerations whereas; deceased SSK has sustained three lacerations.
Out of these six lacerations, only one is 8 cm. deep, others are quite
minor. The evidence of PW1 shows that, deceased had sustained one
stab wound and one laceration on his chest. Therefore, the evidence
of PW7 and PW10 that there was assault by accused no. 1 with a
tocha and he inflicted two stab wounds on the chest of SSK is
corroborated.
31. The story regarding SSK sustaining injury by fall on a
31 APEAL374.2001 & ors
pointed nail cannot be accepted for several reasons.
(i) No pointed nails were found in the wooden box on
the spot.
(ii) The evidence shows suggestion that accused no. 1
was surrounded by the teachers and that time PW7
gave a kick which hit SSK on his waist. In that case,
SSK would not have fallen on his chest, he could
have fallen on back side as he was facing towards
accused no. 1 and PW7.
(iii) Thirdly, there are three injured persons including
deceased SSK. Besides, A1 & A2 have also sustained
injuries. All of them could not have fallen and all of
them could not have sustained injuries
simultaneously by fall.
(iv) PW7 and deceased SSK had sustained lacerated
wounds which are having dimension of 0.3 x 0.3
with varying depth. These injuries are possible by
tocha (article no. 1). Doctor has given such opinion
and we also find that such lacerations of such
dimensions can be caused by tocha (article 1).
32. A lame attempt was made to show that the injury of 8 cm
depth could not have been caused by tocha considering the length of
the same. However, the tocha is having length of 8.25 inches, out of
which the handle is of 3 inches and the pointed rod is of 5 inches.
32 APEAL374.2001 & ors
The depth of injury is 8 cm which is equivalent to 3.2 inches. We
find that the said injury is certainly possible by the tocha.
33. It was argued that, there was huge delay of one hour and
15 minutes in lodging the FIR. We do not find substance in it. The
evidence shows that, the incident was over by 5:30 p.m. Thereafter,
PW7 and PW10 first went to Police Station but the Police directed
them to go to the hospital which is at a distance of 20 minutes walk.
They went there on foot. The doctor made inquiry with them as to
why they directly came to the hospital but on their own information
Doctor contacted police. Doctor made inquiry with Police and
thereafter received letter from Police Station and examined them.
The evidence of Dr. Nilkante shows that, the dead body was brought
to him at 5:30 p.m. He examined PW7 at 6:00 p.m. (certificate Exh.
91) and PW10 at 6:10 p.m. (certificate Exh. 92). Thereafter, they
had gone to the police station and lodged FIR at 6:30 p.m, which is
not at all a delayed FIR. One cannot sit with a stopwatch to count
the delay in lodging FIR. Pertinently, accused no. 2 has lodged FIR
immediately after recording of the FIR of PW7.
34. Lot of arguments were advanced to suggest that, A1 was
insisting to record his FIR but it was not recorded. Whereas, the FIR
33 APEAL374.2001 & ors
of PW7 was recorded earlier. It is evident that, SSK, one person from
the side of teaching staff consisting of PW7 and PW10 had died on
the spot whereas; accused no. 1 had sustained a minor injury on the
shoulder and A2 had sustained four minor injuries. It was not certain
whether the assault on accused nos. 1 and 2 was a cognizable offence
or not. In this situation, there is nothing wrong if the Police Officer
directs to record first FIR in a case involving murder.
35. There is corroborative evidence in the form of blood stains
on the clothes of accused nos. 1 and 2. Immediately after the
incident, the clothes of accused no. 1 were seized. Clothes of the
accused no. 1 and tocha were seized in the presence of PW2 under
panchanama Exh. 103. Those were forwarded to CA and the blood
spots were found on them. Similarly, blood stains were found on the
clothes of accused no. 2 but the panchanama Exh. 111 drawn before
PW5 is not reliable. Accused no. 2 could not have worn the same
blood stained clothes from 18.11.98 to 24.11.98. Therefore, seizure
of blood stained clothes on 24.11.98 will have to be discarded.
36. There is evidence of PW6-ASI Prabhakar and Investigating
Officer - Musale that they had received a message about quarrel at
the Police Station. Within two minutes, they reached the spot and
34 APEAL374.2001 & ors
they found SSK lying on the spot, accused no. 2 sitting at some
distance and accused no. 1 holding a tocha. Then A1 was brought to
the police station and tocha was seized from him. It is quite
improbable that accused no. 1 would keep tocha in his hand till
reaching the police station but it is an exaggeration. PW7 and PW10
have not deposed about arrival of police on the spot during their
presence. Therefore, evidence of PW6 and PW13 that tocha was
found in the hands of accused no. 1 cannot be accepted. But evidence
of PW7 and PW10 is convincing, reliable and trustworthy. The police
might have picked up the tocha lying on the spot and shown it in the
hands of accused no. 1.
37. Shri. R. S. Deshmukh, learned counsel for the appellant
vehemently argued about improbabilities. He assumed the defence
case to be proved though the defence story put up to the witnesses
was denied. When the suggestions made are not admitted by the
prosecution witnesses or are not probabalized by the circumstances,
those cannot be considered as matters of fact. There is no material to
show that, seven teachers were present on the spot and all of them
participated in the assault. The assault took place between two
accused on one hand and PW7 and PW10 and deceased SSK on the
other. Accused nos. 1 and 2 were superiors and in position to
35 APEAL374.2001 & ors
dominate the teachers in normal circumstances. The teachers
working under them would not have dared to attack them as
suggested. There must have been verbal exchange which resulted
into scuffle and manhandling which might have resulted into free
fight. Accused no. 1 Bharat was having a tocha in his pant pocket.
He lost control over himself and in the sudden fight he started using
tocha. He caused some lacerations to deceased SSK as well as to
PW7 and inflicted one stab blow near the chest of SSK. It went 8 cm
deep caused puncture of heart, lung, plura and pericardium resulting
into profuse bleeding and instant death. We find that this is a clear
case of culpable homicide.
38. It is a matter of common knowledge that a person does not
go for committing murder with a tocha. He would certainly select a
better instrument. We therefore find that there was no premeditation
on the part of accused no. 1. There was no prior concert between
accused nos. 1 and 2 to commit murder of SSK. There could not be.
Therefore, it is not possible to accept the evidence of PW7 and PW10
that accused no. 2 held SSK and accused no. 1 inflicted a blow of
tocha. We find that, in a free fight, accused no. 1 was tempted to
use tocha and all of a sudden, he lost his control and gave blow of
tocha on his chest. There is nothing to show that accused no. 2 knew
36 APEAL374.2001 & ors
that accused no. 1 was likely to commit such an act and he would
hold SSK so that accused no. 1 can stab him. We therefore find that
accused no. 2 cannot be held guilty in the act of accused no. 1 which
resulted into death of SSK.
39. As blow of such tocha on heart is bound to cause death, the
act of accused no. 1 clearly falls in the definition of murder appearing
in Section 300 IPC, however, his act falls within exception no. 4.
Accused no. 1 might have been using the tocha to protect himself and
he has exceeded his right of private defence while inflicting the fatal
injury. Besides his act was without premeditation in a sudden fight
and in a hit of passion upon a sudden quarrel and he had not taken
any undue advantage. But it is an intentional act.
40. We therefore hold that accused no.1 guilty u/s 304-I of IPC.
41. There is evidence that accused nos. 1 and 2 have caused
injuries to PW7 and PW10. The evidence of PW7 and PW10 in this
regard is consistent with the medical evidence. PW10 has stated that
accused no. 2 had caused him scratch injuries whereas; accused no. 1
has caused small lacerations to PW7. There are some injuries to
accused nos. 1 and 2 as well. It was a free fight. Both have sustained
37 APEAL374.2001 & ors
injuries. Both are not serious. There is possibility that accused nos. 1
and 2 might have caused injuries to PW7 and PW10 in exercise of
right of private defence. Hence, accused nos. 1 and 2 cannot be
convicted for voluntarily causing hurt to PW7 and PW10.
42. Considering the strained relations and wild allegations
made by both the parties against each other, the allegations about
verbal offences like intentional insult or criminal intimidation cannot
be believed. Besides, there is no evidence to satisfy the ingredients of
Section 503 IPC namely the intimidation given with an intention that
the victim should do which he is not interested in doing or not to do
which he is legally entitled to do. Therefore, the conviction u/s 506
IPC is also not sustainable. In view of our above findings, we hold
that accused no. 1 alone guilty u/s 304-I IPC. Accused no. 2 is not
guilty for any offence and accused no. 1 deserves to be acquitted for
the remaining offences. Hence, we record the findings on the points
accordingly.
43. Considering these findings, Criminal Appeal No. 374 of
2001 filed by accused no. 2 - Tukaram deserves to be allowed while
Criminal Appeal No. 497 of 2001 filed by State deserves to be
dismissed and Criminal Appeal No. 390 of 2001 filed by accused no.
38 APEAL374.2001 & ors
1-Bharat deserves to be partly allowed.
44. Considering the facts that the incident took place in 1998
and now accused no. 1 is aged around 55 years and considering the
nature of assault, we feel that sentence of seven years rigorous
imprisonment with fine of Rs. 2,00,000/- will meet the ends of
justice. Hence the order.
ORDER
(i) Criminal Appeal No. 497 of 2001 filed by the State is
dismissed.
(ii) Criminal Appeal No. 390 of 2001 is partly allowed.
The conviction of accused no. 1 u/s 302 of IPC is set
aside and modified that he is held guilty u/s 304-I of
IPC and is sentenced to suffer rigorous imprisonment
for seven years and to pay fine of Rs. 2,00,000/-, in
default, to suffer further rigorous imprisonment for
two years. As far as possible the fine amount be
recovered and it shall be paid to heirs of deceased -
Sanjay Kshirsagar. Accused no. 1 is acquitted of the
remaining charges. He shall surrender before the ld.
trial Judge within 15 days for undergoing the
sentence failing which the ld. Sessions Judge shall
take steps to secure his presence and issue conviction
warrant.
(iii) Criminal Appeal No. 374 of 2001 filed by accused
no.2 is allowed. He is acquitted of all the charges.
39 APEAL374.2001 & ors
His bail bonds stands cancelled. He shall furnish PR
bond of Rs. 10,000/- with like solvent surety
u/s.437A of Cr.P.C.
(iv) The order regarding muddemal property shall stand
as it is but the muddemal property be preserved till
the appeal period is over.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
