Sanjay Sahebrao Savant And Anr vs The State Of Maharashtra
2017 Latest Caselaw 381 Bom

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nsc.
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 673 OF 2011


       1.     Sanjay Sahebrao Savant
              Age 21 years, Occ:Agriculturist.

       2.    Sahebrao Mininath Savant
             Age 51 years, Occ:Agriculturist.

              Both R/o. Khudus, Tal:Malshiras,
              District : Solapur.
              (At present lodged in Sub-Jail               ...Appellants
              Malshiras).                                  Orig.Accused 1 and 2.



              Versus

       The State of Maharashtra
       (At the instance of Malshiras
       Police Station in connection of
       C.R.No.93/2009)                                     ...Respondent


       Mr.D.G.Khamkar for the Appellants.

       Mr. H. J. Dedia, A.P.P for the Respondents-State


                        CORAM : SMT.V.K.TAHILRAMANI &
                                REVATI MOHITE DERE, JJ.

                       DATE            : 2nd MARCH, 2017





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ORAL JUDGMENT (Per Smt. V. K. Tahilramani, J.) :

1. The appellants, original accused nos.1 and 2 have

preferred this appeal, against the Judgment and Order dated 29 th

April, 2011, passed by the learned Ad hoc Additional Sessions

Judge, Malshiras in Sessions Case No.34 of 2010. By the said

Judgment and Order, the learned Sessions Judge, convicted both

the appellants under Sections 302 and 323 r/w 34 of the Indian

Penal Code. For the offence punishable under Section 302 r/w

34 of the Indian Penal Code (for short 'I.P.C'), both the

appellants were sentenced to suffer rigorous imprisonment for

life and fine of Rs.3,000/- each, in default to suffer rigorous

imprisonment for 1 year. For the offence punishable under

Section 323 r/w 34 of the I.P.C, both the appellants were

sentenced to suffer simple imprisonment for 1 year and fine of

Rs 500/- each, in default to suffer simple imprisonment for 1

month. The learned Sessions Judge directed that both the

sentences of imprisonment shall run concurrently.

2. The prosecution case briefly stated, is as under:-

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               The informant,          PW 2 -   Shivaji was residing at

Shivtej Nagar, Khudus, in Taluka - Malshiras, District - Solapur.

Deceased - Tanaji who was his brother was also residing along

with his wife - Kavita at Shivtej Nagar, Khudus. Shantabai was

the sister of Tanaji and PW 2 - Shivaji. She was married to

appellant no.2 - Sahebrao. Appellant No.2 - Sahebrao along

with his wife - Shantabai and their children i.e. appellant no.1-

Sanjay and Amol i.e. juvenile offender were also residing at

Shivtej Nagar. Thus, the appellants, the deceased and the first

informant were all residing in the same locality. There were

strained relations between PW 2 - Shivaji, deceased - Tanaji and

their sister - Shantabai, since last about 20 years. The incident

occurred on 18th December, 2009. At about 8.30 p.m. PW 2 -

Shivaji was at home along with his wife - Parwati and son -

Sagar. Deceased-Tanaji along with his wife PW 3 - Kavita was

present in his house. The house of Tanaji was situated about 5 to

10 feet away from the house of PW 2 - Shivaji. At about 8.45

p.m. both the appellants along with juvenile offender - Amol

came to the house of Shivaji. They called Shivaji and Tanaji out

of the house. They started abusing them. Thereupon, Shivaji and

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deceased - Tanaji questioned them why they were abusing.

Then, appellant no.1 - Sanjay inflicted blow with an axe on the

head of Tanaji. Tanaji sustained injury. The juvenile offender -

Amol gave a blow with an iron rod on the left wrist of PW 2 -

Shivaji. Appellant no.2 - Sahebrao dealt blow with stick on

Tanaji. Kavita i.e. wife of Tanaji, son of Tanaji, Sagar i.e. son of

Shivaji and others came on the spot and rescued them from the

clutches of the accused persons. Tanaji was taken to the

hospital. PW 2 - Shivaji lodged FIR. Thereafter, investigation

commenced. Tanaji expired on 21st December, 2009 at about

9.00 a.m. in the hospital. The dead body of Tanaji was sent for

postmortem. PW 8 - Dr.Ramesh Ukrande performed the

postmortem. In his opinion the cause of death was 'shock due

to fracture of skull and haemotoma'. After completion of

investigation, charge-sheet came to be filed.

3. Charge came to be framed against both the

appellants under Sections 302, 326, 323, 504 and 506 Part-II r/w

34 of I.P.C. The accused pleaded not guilty to the said charge

and claimed to be tried. Their defence is that of total denial and

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false implication. In addition appellant no.2 had raised the

defence of alibi.

4. The learned Sessions Judge after going through the

evidence adduced in this case, convicted and sentenced both

the appellants as stated in paragraph 1 above. Hence, this

appeal.

5. We have heard the learned counsel for both the

appellants and learned A.P.P for the State. We have carefully

considered their submissions, Judgment and Order passed by

the learned Sessions Judge and the evidence in this case. After

carefully considering the same, for the below mentioned

reasons, we are of the opinion that both the appellants

assaulted Tanaji.

6. The conviction of the appellants is based on the

evidence of two eye-witnesses i.e. PW 2 - Shivaji and PW 3 -

Kavita. Shivaji is the first informant in the present case. He is

the brother of deceased - Tanaji. PW 3 - Kavita is the wife of

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deceased - Tanaji. Shivaji has stated that he, his brother - Tanaji

and the appellants all resided in the same locality i.e. Shivtej

Nagar. Shantabai was his sister as well as the sister of Tanaji.

There were strained relations with Shantabai since last 20 years.

Shivaji has stated that the incident occurred on 18 th December,

2009 at about 8.45 p.m. At that time he along with his wife and

his son were present in the house. Tanaji along with his wife was

present in the house of Tanaji. The house of Tanaji was situated

at a distance of about 5 to 10 feet away from the house of

Shivaji. At about 8.45 p.m the appellants along with juvenile

offender - Amol came to their house on a motor bike. They

called Shivaji and Tanaji out of the house. They took them in

front of a cattle shed and started abusing them. Then, appellant

no.1 - Sanjay inflicted blow with an axe on the head of Tanaji.

Tanaji sustained injury. The juvenile offender - Amol gave a blow

with an iron rod on the left wrist of PW 2 - Shivaji. Appellant

no.2 - Sahebrao dealt blow with stick on Tanaji. Kavita i.e. wife

of Tanaji, son of Tanaji, Sagar son of Shivaji and others came on

the spot and rescued them from the clutches of the accused

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persons. Tanaji was taken to the hospital. PW 2 - Shivaji lodged

FIR.

7. The second eye witness is PW 3 - Kavita. Kavita was

the wife of deceased - Tanaji. She has stated that on 18 th

December, 2009 at about 8.45 p.m. the appellants along with

juvenile offender - Amol came to their house and called her

husband - Tanaji and Shivaji out of the house. Accordingly,Tanaji

and Shivaji went out of the house. The accused persons took

Tanaji and Shivaji in front of a cattle shed. She also followed

Tanaji, Shivaji and the accused persons with a lantern and torch

in her hands. She saw the juvenile offender - Amol inflicting a

blow with an iron rod on the left hand of Shivaji. Appellant no.1

- Sanjay gave a blow with an axe on the head of Tanaji.

Appellant no.2 - Sahebrao dealt blow with stick on Tanaji. Tanaji

sustained injury on his head.

8. Learned Counsel for the appellants submitted that the

evidence of both the eye witnesses cannot be believed because

the evidence of DW 1 - Mahadeo Chavan shows that appellant

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no.2 was not in Shivtej Nagar or Khudus, but, infact he was in

village - Mohi on 18th December, 2009. He placed reliance on

the evidence of DW 1 - Mahadeo. Mahadeo has stated that he

met appellant no.2 in village Mohi at about 7.00 p.m. He was

talking to the appellant no.2 for about an hour. However, PW 2

and PW 3 have categorically stated about the presence of both

the appellants in Shivtej Nagar on 18th December, 2009 at 8.45

p.m. Both of them have stated about the participation of both

the appellants in the incident. Nothing has been elicited in the

cross-examination of these two witnesses, so as to disbelieve

their testimony. In this view of the matter, we are not inclined to

place any reliance on the evidence of DW 1 - Mahadeo.

9. That Tanaji met a homicidal death is brought out by

the evidence of PW 8 - Dr.Ukrande, who performed the post-

mortem on the dead body of Tanaji. On external examination,

he saw the following injuries:-

1. Abrasion 1" in length on left cheek.

2. C.L.W. 1/2" X 1/4" X 1/4" on right great toe.

3. Sutured wound left temporo partietal region.

6" in length, bone deep, multiple fractures of skull

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in temporo parietal region.

According to Dr. Ukrande, the probable cause of

death was shock due to fracture of skull on left temporo parietal

region, with extra cerebral haemotoma of left temporo parietal

region with sub dural haemotoma of right parieto occipital

region. According to Dr. Ukrande, the injury no.3 was possible

by axe (Article - A) and injury nos.1 and 2 were possible by stick

(Article - C).

10. Mr. Khamkar submitted that PW 7 - Dr.Anant Kulkarni

was the first doctor who examined and treated Tanaji and he has

noticed only one injury on the head of Tanaji. Dr. Kulkarni has

not noticed any other injury on the body of Tanaji. He submitted

that this shows that the other injuries i.e injury nos.1 and 2

noticed by PW 8 - Dr. Ukrande were not caused in the incident.

He drew our attention to the evidence of PW 7 - Dr.Kulkarni, who

had stated that he was attached to Ashwini Hospital on 18 th

December, 2009. At about 10 p.m. Tanaji was admitted in the

hospital and Tanaji had an injury on the head i.e. C.L.W. over left

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temporal region, 4 cms X 1 cm X 1 cm. Mr. Khamkar also pointed

out the indoor case paper of Ashwini Hospital pertaining to

Tanaji, which is at Exhibit - 36. This case paper shows only one

injury on the body of Tanaji, which injury was on the head.

11. Mr. Khamkar submitted that appellant no.1 had given

one blow with an axe on the head of Tanaji. As far as appellant

no.2 is concerned, he has given a blow of stick which has not

even caused any injury to Tanaji. Mr. Khamkar relied on the

decision of the Supreme Court in the case of Mavila Thamban

Nambiar v/s State of Kerala,1 In the said case the appellant

had caused stab injuries on the right side of the chest as well as

right cheek with scissor. The Supreme Court negated the

contention that the appellant had committed the act in exercise

of the right of private defence. However, the Supreme Court

held that the appropriate conviction would be under Section 304

Part II of I.P.C and sentenced the appellant to rigorous

imprisonment for 7 years. The Supreme Court in the case of

Jawahar Lal and Anr v/s State of Punjab 2 also looking to

1 (2009) 17 SCC 441 2 AIR 1983 SC 284

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the fact that one blow was inflicted with knife converted the

conviction from Section 302 of I.P.C. to Section 304 Part II of I.P.C

and sentenced the accused therein to rigorous imprisonment for

5 years. In the case of Jawahar Lal (supra), both the

appellants were armed with knives. The Supreme Court

observed that a Punjabi carrying a knife is not at all an unusual

feature nor can it furnish an indication that it was carried by

them to facilitate inflicting a fatal injury. Mr. Khamkar submitted

that in the present case also the appellants are agriculturalist,

hence, an agriculturalist being armed with an axe cannot be said

to be an unusual feature nor can it furnish an indication that it

was carried by the appellant no.1 to facilitate inflicting a fatal

injury. Mr. Khamkar further pointed out that the appellant no.1

like the first appellant in the case of Jawahar Lal (supra) was a

young boy. He had given one blow with an axe. Though, PW 2

had stated that the incident took place for about 15 to 20

minutes and PW 3 had stated that the incident took place for

about 30 to 40 minutes, only one blow was given by the

appellant no.1 without any attempt to give a second blow. Only

one injury was sustained by Tanaji, which was on the head.

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There is not even a slightest indication that appellant no.1 even

attempted or that appellant no.2 even attempted to cause any

more harm to Tanaji. As observed earlier as far as appellant

no.2 is concerned, he is stated to have assaulted with a stick

and no injury was caused to Tanaji on account of this assault.

However, his act shows that he shared the common intention

with appellant no.1. Moreover, it is seen that Tanaji did not

expire on the spot but he expired on 21st December, 2009 i.e. 3

days after the incident. More over, at the spot there was

complete darkness which can be seen from the fact that Kavita

carried a lantern and torch with her when she followed Tanaji,

Shivaji and the appellants.

12. In view of the above discussion and the two

decisions of the Supreme Court mentioned above, we set aside

the conviction and sentence under Section 302 of I.P.C. Instead

both the appellants are convicted under Section 304 Part II of

I.P.C. For the said offence they are sentenced to suffer rigorous

imprisonment for 8 years and fine of Rs.3,000/- each, in

default to suffer simple imprisonment for 1 year. The conviction

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and sentence under Section 323 r/w 34 of I.P.C is maintained.

Both the substantive sentences of imprisonment shall run

concurrently. The appellants are entitled to set off in accordance

with law.

13. The Appeal is partly allowed to the aforesaid extent.

(REVATI MOHITE DERE, J.) (V. K. TAHILRAMANI, J.)