Balu Dashrath Barhate And Anr vs State Of Maharashtra
2017 Latest Caselaw 9342 Bom

                                                    Cri. Appeal No. 566/2002
                                        1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 566 OF 2002

1.     Balu s/o. Dashrath Barhate,
       Age 26 years, Occu. Agriculture,
       R/o. Jalalpur, Taluka Karjat,
       District Ahmednagar.

2.     Sukhdeo s/o. Dashrath Barhate,
       Age 20 years, Occu. and
       R/o. As above.                                 ....The Appellants.

               Versus

       The State of Maharashtra
       (Through the Public Prosecutor,
       High Court, Bench at Aurangabad)               ....The Respondent.

Mr. Joydeep Chatterji, Advocate for appellants.
Mr. S.D. Ghayal, APP for respondent/State.
                                CORAM   :   T.V. NALAWADEAND
                                            ARUN M. DHAVALE, JJ.

RESERVED ON : 28/11/2017.

PRONOUNCED ON : 06/12/2017

JUDGMENT : [PER ARUN M. DHAVALE, J.]

1) This is an appeal by the appellants against judgment

dated 7.9.2002 of conviction against them, who were accused in

Sessions Case No. 121/2001 before Additional Sessions Judge,

Ahmednagar for the offence punishable under section 302 r/w. 34 of

Indian Penal Code (hereinafter referred to as 'IPC' for short).

2) The facts relevant for deciding this appeal may be stated

as follows :-

Cri. Appeal No. 566/2002

Deceased Shrirang Bajirao Barhate, aged about 55

years, was uncle of accused Nos. 1 and 2. He was residing at and

was having agricultural land at Jalalpur, Taluka Karjat, District

Ahmednagar. Accused No. 1 Balu was residing in the filed while his

father Dashrath and brother Sukhdeo were residing in village.

Deceased Shrirang and his brother Dashrath inherited agricultural

land of 5½ acres. There was no partition between Dashrath and

deceased Shrirang. A civil suit for partition and separate possession

was filed in Karjat Court. The dispute arose as Dashrath was not

allowing Shrirang to cultivate the land. The two accused, who were

sons of Dashrath, were supporting their father and restraining

Shrirang from entering in to the land.

3) On 11.6.2001 at 5.00 p.m. both the accused, Balu and

Sukhdeo cut Babool tree from the common land and took away the

firewood. On 12.6.2001 at 8.00 a.m. deceased Shrirang went to the

house of accused and accosted them about their acts. That time

there was quarrel and Shrirang was intimidated that he should leave

the spot lest he would be killed. PW 2 - Bhimabai, widow of

deceased Shrirang was standing in front of her house and watching

the incident. At about 8.15 to 8.30 a.m. when Shrirang was

returning the field of Tulshiram, both the accused came with sticks

and stones and by asking Shrirang as to how he was concerned with

Cri. Appeal No. 566/2002

cutting of branches, they started assaulting him with stick and

stones. When PW 2 - Bhimabai tried to rescue her husband, both the

accused rushed towards her with sticks and threatened to kill her.

Due to fear she ran towards the house of Tulshiram. She was

shouting and requesting the accused not to assault her husband.

Still both the accused continued to assault him. The incident was

witnessed by Tulshiram, Ashok, Popat, Shivaji and Changdev. When

Shrirang became unconscious, both the accused abused him and left

the spot. PW 2 - Bhimabai noticed injuries on skull, hands, legs and

back of her husband. He was unconscious and hence, she brought

Police Patil to the spot and carried her husband in the bullockcart of

Ashok Borate to S.T. stand of Jalalpur and from there, he was

brought in a tempo to Rural Hospital, Rashin.

4) On examination, the Medical Officer declared Shrirang

dead. Accordingly, she lodged F.I.R. at Rashin Police Station at 11.45

a.m. The crime was registered at C.R. No. 101/2001 and

immediately, post mortem was conducted on the dead body at 2.00

p.m. by PW 6 - Dr. Subhash Shinde.

5) During investigation PW 10 - Police Inspector Shri.

Ramesh Pawar carried out inquest panchanama, Exh. 17, spot

panchanama, Exh. 24 and seized the samples of ordinary soil and

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soil mixed with blood from the spot, Article Nos. 3 and 4. He

recorded statements of material witnesses and searched and

arrested the accused at 8.15 p.m. Blood stained clothes on their

person were attached while drawing arrest panchanamas at Exhs. 30

and 31. One application showing threats by the accused to Tulshiram

was taken up in the investigation papers. During police custody,

accused No. 1 made a statement to discover two sticks from the

crop of Jawar. His memorandum was recorded and in pursuance of

his memorandum, he discovered the sticks, concealed in Jawar crop

near the house, which were seized. The seized articles were

forwarded to C.A. Office. Copies of civil litigation were collected. Map

of the spot was obtained from the Revenue Officers and after

completion of investigation, chargesheet was submitted in the Court.

6) In the due course, the case was committed to Court of

Sessions. The learned Additional Sessions Judge, Ahmednagar

framed charge against both the accused under section 302 r/w. 34

of IPC. The accused pleaded not guilty. The prosecution examined

eleven witnesses. The defence of the accused is of total denial and

false implication due to land dispute.

7) After recording examination of all the witnesses up to

26.12.2001, the Court examined as court witness, one Head

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Constable dealing with maintenance of Muddemal and thereafter,

there were doubts about mental condition of accused No. 2 about his

ability to defend himself. On 1.1.2002 Superintendent Jail sent

report, Exh. 65 that accused No. 2 Sukhdeo was sick and on request

of Medical Officer from Civil Hospital, Ahmednagar, he was forwarded

to Sasoon Hospital, Pune. The report of Sasoon Hospital disclosed

that he had a psychic problem. On 30.1.2002 the learned Trial Judge

examined Dr. Vilas Bahilume as a Court witness on the point of

mental condition of accused No. 2 and he was found to be unfit for

trial. Then, the learned Additional Sessions Judge passed order

dated 4.1.2002 for keeping accused No. 2 under observation of

doctors from mental hospital for ten days and for submission of

report regarding his progress. Meanwhile, the learned Additional

Sessions Judge was pleased to grant interim bail to accused No. 2 by

order dated 21.1.2002. On 5.7.2002 the report of medical fitness of

accused No. 2 was received. After hearing the arguments, the

learned Additional Sessions Judge was pleased to hold both the

accused guilty under section 302 of IPC and sentenced them to

suffer imprisonment for life and to pay fine of Rs.3,000/-, each and

in default of payment of fine, simple imprisonment for six months.

Hence, the aggrieved accused have preferred this appeal.

8) Heard learned Advocate Shri. Joydeep Chatterji for the

Cri. Appeal No. 566/2002

appellants. He has taken us through the pleadings on record and

submitted that there is evidence of only two material witnesses, PW

2 - Bhimabai, wife of deceased and PW 4 - Ashok. He stated that all

other witnesses are either insignificant or not supporting the

prosecution. He pointed out that the clothes of the accused, though

seized, were not sealed and discovery panch (PW 8 - Amrut Akhade)

has turned hostile. He referred to P.M. notes and made submissions

that the deceased had sustained eight injuries and injury Nos. 2 to 7

are minor and only injury No. 1 C.L.W. over occipital region, having

size of 6 x 6 x 6 c.m. is fatal wound. But, the Medical Officer has

stated that injury No. 1 along with injury No. 8, contusion over right

chest, caused the death. He submitted that there is no evidence that

the injuries were sufficient in ordinary course of nature to cause the

death. He pointed out that as per evidence of PW 4 - Ashok, by the

time he went to spot, Shrirang was lying in injured condition and he

had not actually seen the assault nor seen the accused near the

spot. He argued that evidence of PW 2 - Bhimabai is not consistent

with the evidence of PW 4 - Ashok. He argued that there is no

evidence as to who had given vital blow of stick on the skull of

deceased Shrirang. He pointed out that PW 2 - Bhimabai has given

admission which discloses that the F.I.R. was lodged by Police Patil

and she has given only thumb impression and she has not disclosed

the facts to police. Her evidence that she has gone to the house of

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Tulshiram to save herself is contrary to the prosecution case

and the material witness Tulshiram has not been examined.

Shri. Chatterji argued that conduct of PW 2 that she has not

come to police station and give the information to Police Patil

raises doubt about the credibility of her evidence. He,

therefore, submitted that evidence of PW 2 and PW 4 should

be disbelieved and both the accused should be acquitted. He

in alternative submitted that even if PW 2 and PW 4 are

believed, it is a case for the offence under section 304 Part II

of IPC.

9) Per contra, the learned APP Mr. Ghayal has whole

heartedly supported the judgment of Trial Court. He argued that

evidence of PW 2 and PW 4 is consistent, the F.I.R. is lodged

promptly and the accused had a motive as they were having land

dispute with the deceased, the P.M. was also conducted immediately

and the accused were arrested and their blood stained clothes were

also seized. The learned APP submitted that PW 2 - Bhimabai is a

rustic, illiterate witness; some minor discrepancies in her evidence

does not make her evidence incredible or untrustworthy. He,

therefore, submitted that the conviction of both the accused should

be upheld. With regard to nature of crime, he submitted that the

injuries on skull and on chest were on vital parts and the deceased

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Shrirang has met with an instant death. He submitted that the

injuries were fatal and therefore, the offence punishable under

section 302 r/w. 34 of IPC is made out.

10) Mr. Ghayal relied on the case of State of Rajasthan Vs.

Dhool Singh, AIR 2004 (SC) 1264, wherein the accused was

convicted for the offence punishable under section 302 of IPC, but

the High Court reduced the sentence to 304 Part II of IPC on the

ground that there was only single injury caused and therefore,

intention to cause murder was not spelt out. The Apex Court

deprecated the practice of reducing sentence for the offence under

section 302 of IPC to section 304, Part II of IPC on insufficient

ground and restored the judgment of the Trial Court.

11) Shri. Ghayal also relied on the case of Saddik @ Lalo

Gulam Hussein Shaikh Vs. State of Gujrat 2017 CR.L.J. 149

(SC) with respect to the effect of invoking section 149 of IPC. It is

held that once the accused is shown as member of unlawful

assembly, it is not necessary to show any overt act on his part in

commission of crime.

12) The points for our consideration with our findings are as

follows :-

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Points Findings

1 Whether deceased Shrirang met with homicidal - In the death ? Affirmative.

2 Whether accused Nos. 1 and 2, in furtherance - In the of their common intention, caused death of Affirmative Shrirang by assaulting with sticks and stones ?

3 Whether it is a case of murder or culpable - U/s. 304, Part homicide, not amounting to murder ? II of IPC.

 4 What order ?                                              - The appeal is
                                                                 partly allowed.


                                     REASONS
Point No. 1 :-

13)               In the present case, as per the evidence of PW 2 -

Bhimabai, the incident took place on 12.6.2001 at about 8.00 to

8.30 a.m. in the morning at Jalapur. The injured was first taken to

Rural Hospital, Rashin and when he was declared dead, immediately

F.I.R. came to be lodged at 11.45 a.m. Surprisingly, the P.M. came to

be conducted at 2.00 p.m. As per the evidence of PW 6 - Dr.

Subhash Shinde and his P.M. notes, Exh. 38, deceased Shrirang was

aged about 55 years and the rigor mortis was well marked on his

body. He noted the following injuries on his person.

(i) CLW over occipital region, 6 x 6 x 3 cm in size, bony

deep.

(ii) CLW over left forearm upper 1/3, 3 x 2 x 2 cm in

Cri. Appeal No. 566/2002

size, palmar aspect,

(iii) CLW over right leg over shin middle 1/3 and 6 x 2 x 2

cm. in size.

(iv) CLW over right leg lower 1/3, 3 x 2 x 1 cm. in size

(v) An abrasion over right ankle joint, 2 x 1 cm. in size.

(vi) Contusion over back middle 1/3, 10 x 2 cm. in size.

(vii) Contusion over right hip joint, 6 x 2 cm. in size.

(viii) Contusion over right chest lower 1/3 side, 10 x 3 cm.

in size.

All the injuries were antimortem. There were corresponding fracture

of occipital bone, 3 x 1 cm. in size, fracture of radius and ulna as

described in clause No. 18 of P.M. notes. There was intracarnial

haemorrhage with subdural haematoma of size 2" x 2" on occipital

region. Doctor has opined that Shrirang died due to acute

neurogenic as well as haemorhagic shock due to fracture of skull

bone (occipital bone) leading to intracarnial haemrrhage and

subdural haematoma as well as rapture of liver. Dr. Subhash had

received letters of request, Exhs. 36 and 37 for PM. He had seen the

inquest panchanama at Exh. 17. The P.M. report given by Dr.

Subhash is at Exh. 38. His evidence is according to the contents of

P.M. notes. He deposed that the death occurred within one hour prior

to 10.00 a.m. due to injury Nos. 1 and 8 and it was instant death.

Thus, it is obvious that these injuries could not have been self-

Cri. Appeal No. 566/2002

inflicted or accidental as there were as many as eight injuries.

Therefore, the defence has not disputed that the deceased Shrirang

died homicidal death. So, point No. 1 is answered in the affirmative.

Point Nos. 2 :-

14) The oral and documentary evidence in chronological

order may be stated as follows :-

(i) PW 2 Bhimabai, informant, is resident of village

Jalalpur. She and her husband were having agricultural land

at a distance of 2 k.m. from the village. Both the accused

are sons of her brother in law Dashrath. Dashrath and

accused No. 2 Sukhdeo were residing in the village

whereas accused No. 1 Balu is residing in the house in

field. Jalalpur is a village having population of 3000 persons

situated 30-35 k.m. away from Rashin.

(ii) Accused and Dashrath on one hand and PW 2

Bhimabai and her husband on the other hand were having

agricultural land dispute. In possession of Dashrath there

was land of five and half Acres in cultivation. Shrirang was

claiming that it was of joint ownership. He had filed civil

suit for partition in Karjat Court. On 11.6.2001 there was a

date in the said case and both Shrirang and Dashrath had

attended the said case. At that time, accused No. 1 Balu

cut off some branches of a tree. According to PW 2

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Bhimabai, the branches cut off were of Ramphal tree

situated in the land of joint ownership. According to

accused, the branches of the tree from their land were cut

off. PW 2 Bhimabai disclosed this fact to her husband when

he returned in the evening from the Court.

(iii) PW 2 Bhimabai stated that on 12.6.2001 in the

morning her husband had gone to the place of accused to

accost them as to why branches of the trees were cut off.

(iv) The said spot is about 400 ft. away from the

house of PW 2 Bhimabai and she was standing in front of

her house and watching the incident.

(v) PW 2 Bhimabai stated that she heard and saw

that both the accused were beating her husband by stones

and sticks in the land of Tulshiram which is situated in

between land of accused and land of PW 2 Bhimabai. She,

therefore, rushed to rescue her husband. But, both Balu

and Sukhdeo rushed at her to assault her and due to fear

she ran to the house of Tulshiram for taking shelter. The

incident was witnessed by Tulshiram, Ashok, Popat,

Changdev and Shivaji. They came to the place where

Shrirang was assaulted. They found that Shrirang was lying

in a pool of blood and the accused were not present there.

PW 4 Ashok brought one bullockcart and PW 2 Bhimabai

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took her husband to Rashin. That time Police Patil was with

her. The doctor declared that her husband was dead.

(vi) Then PW 2 Bhimabai went to Police Station

Rashin and she lodged occurrence report, Exh. 40, which

was recorded by PW 7 ASI Bhimrao. This occurrence report

was forwarded by PW 7 Bhimrao to Karjat Police Station

where PW 9 ASI Pandharinath treated it as FIR and

registered crime at C.R. No. 101/2001. The FIR is at Exh.

21.

(vii) PW 10 PI Ramesh Pawar took over the

investigation of the crime. He proceeded to Rashin and in

presence of PW 1 Machindra drew inquest panchanama,

Exh. 17. PW 1 Machindra has supported the prosecution.

(viii) Thereafter PW 10 PI Ramesh Pawar went to the

spot, noticed blood stained soil, blood stained stones and

odd pair of shoe. He seized them along with sample of

ordinary soil and drew the spot panchanama, Exh. 24. He

identified Muddemal Article Nos. 3 and 4 as the same blood

stained stones and shoe. PW 3 Ramdas is panch to the spot

panchanama. He has supported the prosecution.

(ix) Meanwhile PW 6 Dr. Subhash Shinde, Medical

Officer, Primary Health Center, Rashin received request

letters Exhs. 36 and 37 for conducting post mortom from

Cri. Appeal No. 566/2002

PW 10 PI Pawar. He conducted the post mortem at 2.00 to

3.00 p.m. The injuries noted by him and cause of death are

already discussed and needs no repetition. The P.M. notes

are at Exh. 38.

(x) On the same day PW 10 IO Pawar searched

accused and brought them to the Police Station at 8.15

p.m. Their clothes were stained with blood. He seized blood

stained clothes and drew arrest panchanama, Exh. 30 of

accused No. 1 Balu. PW 5 Hanumanta Shelke, panch

identified Muddemal Articles Nos. 4 and 5 as clothes of

accused No. 1 Balu. Then PW 10 PI Pawar seized blood

stained clothes of accused No. 2 Sukhdeo from his person

and drew arrest panchanama, Exh. 31. PW 5 Hanumanta

has supported him in respect of this seizure panchanama

and identification of the Articles.

(xi) PW 4 Ashok, eye witness had given application

dated 13.6.2001 showing that both the accused had

threatened to kill him for giving shelter to PW 2 Bhimabai.

It is at Exh. 27.

(xii) During investigation on 14.6.2001 accused No.

1 Balu showed willingness to produce two sticks concealed

by him in Jawar crop. His memorandum was accordingly

recorded. It is at Exh. 42. Then he took the police and

Cri. Appeal No. 566/2002

panchas to village Jalalpur and then in Jawar crop from

southern side of one house, he produced two sticks

concealed under dry leaves. Those were stained with blood.

Those were attached with panchanama, Exh. 43. PW 10 PI

Pawar identified sticks, Muddemal Article Nos. 11 and 12 as

the same sticks.

(xiii) PW 8 Amrut has half heartedly supported

Investigating Officer. Initially he stated that police told him

that accused had given memorandum and he should sign it

and without permission of the Court, the APP has cross

examined him and he has admitted most of the facts and

proved the memorandum and panchanama at Exhs. 42 and

43 and Muddemal sticks, Articles Nos. 11 and 12. In cross,

he again admitted that he signed the memorandum and he

was asked by police to sing. But, PW 8 Amrut has denied

that accused No. 1 Balu had not given any memorandum.

(xiv) PW 5 Hanumanta has deposed that on

12.6.2001 one constable produced clothes of deceased

Shrirang from Medical Officer. It contained one white Kopri

(like a shirt) and one white Dhotar, both having blood

stains. He proved panchanama, Exh. 32 and identified

clothes, Muddemal Articles Nos. 9 and 10 as that of

deceased Shrirang. PW 10 PI Pawar has issued letters,

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Exhs. 48 and 49 to one Police Constable and asked him for

delivery of dead body and delivery of clothes from Medical

Officer. He kept the aforesaid Muddemal Articles in safe

custody in Muddemal locker vide Exh. 50. He collected

certified copies of suit filed by accused No. 1 against

deceased Shrirang, PW 2 Bhimabai and one Kasturilal, Exh.

51. The 7/12 extract of the disputed land is at Exh. 52. He

issued letter to Tahsildar for drawing map of the spot, Exh.

53.

(xv) On 26.6.2001 PW 11 Police Naik Laxman took

Muddemal Articles along with covering letter, Exh. 47 to

C.A. Office and obtained acknowledgment of C.A. Office on

Exh. 47. The C.A. report is at Exh. 14.

15) We have carefully gone through the evidence of main

witnesses viz. PW 2 Bhimabai and PW 4 Ashok. PW 2 Bhimabai has

deposed about her dispute with the accused and pendency of civil

suit pending between them, which is not in dispute. There is also no

dispute that on earlier day of incident, accused No. 1 had cut some

branches of tree which led to dispute between the deceased and

accused Nos. 1 and 2. PW 2 Bhimabai has stated that while she was

standing in front of the house, her husband had gone to the house of

accused in the morning of 12.6.2001 which is about 400 ft. away

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from her house. She could hear and see that both the accused were

assaulting her husband. She rushed to help her husband. As both

the accused threatened to beat her, due to fear she ran to the house

of Tulshiram and narrated the incident. Then she along with

Tulshiram, Ashok, Popat, Changdev and Shivaji came to the spot

where her husband was being assaulted. He was lying in the pool of

blood and the accused were not present there.

16) It is argued that the material witness Tulshiram has not

been examined. However, PW 4 Ashok is examined, who is son of

Tulshiram and he was residing in the same house. Therefore, non

examination of Tulshiram is neither significant nor suspicious. PW 4

Ashok has supported PW 2 Bhimabai about the dispute in respect of

agricultural land. He stated that Shrirang was too poor and was not

getting meals for two times a day. He was unable to purchase a pair

of shoe. He referred the incident of cutting of branches of tree which

took place one day before the date of incident. But he stated that

the branches cut off the tree were of Babool tree whereas PW 2

Bhimabai stated that branches of Ramphal tree were cut, is not

material contradiction. He stated that on 12.6.2001 Shrirang had

gone to the house of accused for accosting them and both the

accused assaulted him which was seen by him. He stated that

assault was going on at the distance of 100 ft. and it was in their

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field. He and his father had seen the incident in the morning, but he

stated the time as 7.00 to 7.30 a.m. whereas PW 2 Bhimabai has

stated the time as 8.00 to 8.30 a.m. He has stated that both the

accused Balu and Sukhdeo were beating Shrirang by means of sticks

and stones. PW 2 Bhimabai has stated similarly. PW 4 Ashok stated

that the accused warned him not to intervene, otherwise they would

kill him. After some time, they went to the spot, where there were

7-8 persons. Shrirang was lying in the pool of blood and Shrirang

was unconscious on the spot. He stated that accused had chased PW

2 Bhimabai to beat her and hence, she had been to his house for

taking shelter. Accused had threatened to make forcible entry in his

house. But, he did not open the door. Thereafter, PW 2 Bhimabai had

gone to Police Patil. PW 4 Ashok has lodged the report, Exh. 27 on

13.6.2001, disclosing the subsequent incident. He has stated that

when he tried to intervene, he was abused and stones were pelted

at him. When PW 2 Bhimabai due to fear came and hid herself in his

house, both the accused had threatened him to send Bhimabai out

of that place so that she should be killed and if she would not be

taken out, they would kill him. This subsequent conduct of PW 4

Ashok is consistent with the prosecution case and evidence of PW 2

Bhimabai and PW 4 Ashok. PW 4 Ashok stated that the leg and

hands of Shrirang were broken and he was taken in bullockcart to

Jalalpur S.T. Stand. He identified the Muddemal Article No. 3 shoe

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found on the spot and Muddemal Article No. 11.

17) Learned Advocate Shri. Joydeep Chatterji relied on the

admissions of PW 4 Ashok disclosing that initially he had heard cries

and the incident was going on for about 25 minutes. After hearing

cries, people had gathered on the spot and Shrirang was crying for

help when he was beaten, but the villagers could not come to his

rescue. The incident was going on at a place 400 to 500 ft. from his

house. Shri. Chatterji relied on the admissions that PW 4 reached

the spot when Shrirang had fallen down and the accused were not

present there to submit that PW 4 Ashok is not eye witness. But the

evidence of PW 4 Ashok shows that he has seen the incident from

long distance and could not go to save Shrirang due to fear of the

accused. Besides his evidence, evidence of PW 2 Bhimabai is

consistent about the attempt made by the accused to assault PW 2

Bhimabai and Bhimabai taking shelter in his house. Their evidence is

supported by report, Exh. 27 submitted by PW 4 Ashok on the next

date. This incident is part of the same transaction in which accused

Nos. 1 and 2 had assaulted Shrirang just before the same.

18) After carefully considering the evidence of PW 2 and PW

4, we find that the learned Trial Judge has rightly relied upon their

evidence to hold accused Nos. 1 and 2 as authors of the injuries

Cri. Appeal No. 566/2002

sustained by deceased Shrirang. This evidence is well supported by

the evidence of PW 10 PI Pawar, Investigating Officer and PW 5

Hanumanta that clothes of both the accused were found blood

stained at the time of their arrest on the same day. The C.A. report

at Exh. 14 shows that clothes of accused Nos. 1 and 2 were having

stains of human blood of group 'O'. Since both the accused were not

injured, the blood stains on their person connect them with the

crime. The sticks recovered also have human blood stains, but the

group could not be determined. The spot panchanama proved by PW

3 Ramdas shows that blood was found on the spot. After carefully

considering of the aforesaid evidence, we find that the learned Trial

Judge has rightly relied upon the aforesaid evidence to hold accused

Nos. 1 and 2 as authors of the injuries sustained by deceased

Shrirang. So, point No. 2 is answered in the affirmative.

Point Nos. 3 and 4 :-

19) The evidence of PW 6 Dr. Subhash Shinde, Medical

Officer and P.M. notes, Exh. 38 show that there were eight injuries

on the person of deceased Shrirang. One was C.L.W. on occipital

region of size 6 x 3 x 3 cm. bony deep and injury No. 8 is contusion

over right chest lower 1/3rd, 10 x 3 cm. The opinion of the doctor

shows that these injuries caused haemorrhagic shock due to fracture

of skull bone and haematoma due to rapture of liver which were

causes of death. The other three C.L.Ws, two contusions and one

Cri. Appeal No. 566/2002

abrasion, total six in number are on hands and legs. From the

evidence on record, we are satisfied that accused Nos. 1 and 2 had

common intention to assault Shrirang by means of sticks and stones.

But, when six out of eight injuries are not on vital parts and

weapons used were sticks and stones only, it is difficult to agree with

the finding of the Trial Judge that accused Nos. 1 and 2 had common

intention to commit murder. Both of them knew that they were going

to give blows of sticks and stones, some of which might cause

injuries on vital part, which would be likely to cause death, we

therefore, hold that they had common intention to commit the

offence of assault with knowledge that such assault was likely to

cause death.

20) In State of Rajasthan Vs. Dhool Singh, AIR 2004

(SC) 1264 there was a single injury incised wound 9 x 3 x 2.5 cm.

on transversally placed on left side of neck Thyroid Cartilage is cut.

Transversally on left side sternoclinoid muscle external jugalar vein

internal jugalar vein and common carotid artery cut completely. It

was caused by deadly weapon sword on vital part, neck. It is

common knowledge that blow of sword on the neck is always

intended to cause death and most likely to cause death whereas

blow of stick or stone on skull, though capable of causing death, the

probability of death is not so high. It is not sufficient in ordinary

Cri. Appeal No. 566/2002

course of nature to cause death nor it indicate motive on the part of

assailants to cause death. The Apex Court in Dhool Sing's case

cited supra criticised the tendency to bring down the offence under

section 302 of IPC to the offence under section 304, Part II of IPC in

the light of totally different set of facts. The same is not applicable to

the present facts. When there is causing of death with intention or

knowledge, it is always the duty of the Sessions Judge to determine

whether it amounts to culpable homicide amounting to murder or

not amounting to murder and in later case it is to be considered

whether it was intentional act or act with knowledge i.e. falling

under section 304 Part I or 304 Part II of IPC. This discretion rather

obligation on the Court to decide the nature of offence is not taken

away by observations made in Dhool Sing's case which are read in

improper context.

21) In Saddik @ Lalo Gulam Hussein Shaikh & Ors. Vs.

State of Gujrat 2017 CR.L.J. 149 (SC) it is held that when any

person is member of unlawful assembly, it is not material what overt

acts he played in the commission of crime and vicarious criminal

liability can be fastened to him under section 149 of IPC. In the first

place, in the present case section 149 of IPC is not applicable and

secondly, while considering the common intention of the accused,

the role played by them in the crime becomes very much relevant as

Cri. Appeal No. 566/2002

intention of the accused is hidden in their mind. We, therefore, hold

that conviction under section 302 r/w 34 of IPC is not sustainable

and it will have to be reduced to under section 304 Part II of IPC.

Therefore, point Nos. 3 is answered accordingly.

22) We have considered the submissions made by the

accused persons before the Trial Court for leniency. They had old

parents depending upon them. Assault has taken place out of civil

dispute. The deceased Shrirang has gone to the house of both

accused to accost them. The incident has taken place around 16 to

17 years back. Considering all these circumstances, we hold that

rigorous imprisonment for seven years and fine of Rs.3,000/-, each,

in default R.I. for three months with direction to pay the entire fine

amount as compensation to the wife of deceased will meet the ends

of justice. Hence, we pass the following order.

ORDER

(I) The appeal is partly allowed. The conviction of the

appellants viz. Balu s/o. Dashrath Barhate and Sukhdeo s/o.

Dashrath Barhate in Sessions Case No. 121/2001 given for the

offence punishable under section 302 r/w. 34 of IPC is hereby set

aside and modified in to conviction for the offence punishable under

section 304 Part II r/w. 34 of IPC. Both the appellants are sentenced

to suffer rigorous imprisonment for seven years and to pay fine of

Cri. Appeal No. 566/2002

Rs.3,000/-(Rupees three thousand) each, in default, rigorous

imprisonment for three months.

(II) The appellants are entitled to set off in respect of the

period for which they were behind bars in this crime. This period be

shown in conviction warrant.

(III) The appellants to surrender to their bail bonds for

undergoing the sentence.

(IV) The fine amount be paid to PW 2 Bhimabai w/o. Shrirang

Barhate, R/o. Jalalpur, Taluka Karjat, District Ahmednagar as

compensation.

        [ARUN M. DHAVALE, J.]                        [T.V. NALAWADE, J.]



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