Bombay High Court
Pratibha Prabhakar Karalkar And ... vs The State Of Maharashtra And Anr on 15 September, 2017
Bench: A.A. Sayed
1 APEAL 1011-12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1011 OF 2012
1. Sou. Pratibha Prabhakar Karalkar, ]
Age - 39 years, Occ. : Housewife. ]
2. Prabhakar Shankar Karalkar, ]
Age - 40 years, Occ. : Service. ]
3. Kiran Jagannath Sakharpekar. ]
Age - 35 years, Occ. : Service. ]
4. Kishor Budhya Dulsada. ]
Age : 30 years, Occ : Service, ]
All R/o. Kashigaon, New Gaothan, ]
Dongari, Tal. & Dist. : Thane. ] ... Appellants
Versus
1. The State of Maharashtra ]
2. The Senior Inspector of Police, ]
Through Kashimira Police Station, ]
Dist. : Thane. ] ... Respondents
Mr. Aniket Vagal for Appellant Nos.1 and 2.
Mrs. Rupali Manik Shinde (Appointed Advocate) for Appellant Nos.3
and 4.
Ms. R. M. Gadhvi, APP for State.
CORAM :- A. A. SAYED &
SARANG V. KOTWAL, JJ.
RESERVED ON :- 06 SEPTEMBER, 2017
PRONOUNCED ON :- 15 SEPTEMBER, 2017
URS 1 of 16
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JUDGMENT ( PER : SARANG V. KOTWAL, J.) :-
1. The present Appeal is filed by the original accused nos.1,
2, 4 and 5 in Sessions Case No.3 of 2008 on the file of the learned
Sessions Judge, Thane. The accused no.3 was a juvenile in conflict
with law and his trial was separated. By the Judgment and Order
dated 27/07/2012, the learned Sessions Judge, Thane, was pleased to
convict the Appellants under various counts of the offences punishable
under the IPC and the Appellants were sentenced as follows :
(i) All the Appellants were convicted under Section 143 of the
IPC and were sentenced to suffer R.I. for six months and
to pay a fine of Rs.2,000/- each and in default of payment
of fine, to suffer further R.I. for three months;
(ii) All the Appellants were convicted under Section 148 of the
IPC and were sentenced to suffer R.I. for two years and to
pay a fine of Rs.3,000/- each and in default of payment of
fine, to suffer further R.I. for six months;
(iii) All the Appellants were convicted under Section 302 read
with 149 of the IPC and were sentenced to suffer R.I. for
life and to pay a fine of Rs.10,000/- each and in default of
payment of fine, to suffer further R.I. for one year.
The Appellants were given benefit of set off under Section
428 of the Cr.P.C. and all the substantive sentences were directed to
run concurrently.
URS 2 of 16
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2. The Appellant Nos.1 and 2 (original accused nos.1 and 2)
are husband and wife. The Appellant No.3 (original accused no.4)
Kiran is the son-in-law of the Appellant Nos.1 and 2 and the Appellant
No.4 (original accused no.5) was their neighbour. Original accused
no.3 was the son of Appellant Nos.1 and 2. He was a juvenile in
conflict with law. Hereinafter, he is referred to as the accused no.3.
3. The prosecution case pertains to the murder of one Saheb
Prajapati who was residing at Kashigaon, New Gaonthan, Dongri,
Thane with his family consisting of his wife, a daughter and two sons.
On 05/04/2006 at about 6.00 p.m., there was a quarrel between
Saheb Prajapati's wife and and the Appellant No.1's daughter on
account of pet dog of the deceased having eaten bread kept by the
Appellant No.1 on the roof of her house. Thereafter at about 9.30
p.m. when the deceased Saheb and his family were having dinner in
their house, all the Appellants, with the juvenile in conflict with law
accused no.3 (who is son of Appellant Nos.1 and 2), came to the
house of Saheb. The accused were carrying weapons like wooden
stick, logs and a knife. Saheb was dragged out of his house. There
was a quarrel between the two families. According to the prosecution
case, the accused no.3 assaulted Saheb with a knife on his abdomen
causing the fatal injury. Saheb was removed to hospital where he was
declared dead.
4. Saheb's widow Meeradevi lodged her FIR. The
investigation was conducted. The accused were arrested. The knife
URS 3 of 16
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was recovered at the instance of accused no.3. Various panchanamas
were drawn. Statements of witnesses were recorded and at the
conclusion of the investigation, charge-sheet was filed. The case was
committed to the Court of Sessions for trial. Charges were framed on
27/09/2010 under Sections 143, 147, 148, 302, 323, 451 and 504
read with 149 of the IPC and in the alternative under Section 302
read with 34 of the IPC, Section 323 read with 34 of the IPC, 452 read
with 34 of the IPC and 504 read with 34 of the IPC. The Appellants -
accused pleaded not guilty to the charge and claimed to be tried.
5. During trial, the prosecution examined six witnesses. PW
1 Santosh Patil was a panch for the spot panchanama but he did not
support the prosecution case. PW 2 Sunil Pansare was the panch who
was present when the police had taken charge of the clothes of
Saheb's sons Pramod and Manoj. PW 3 Meeradevi Prajapati was the
widow of the deceased. She had lodged the FIR and she was an eye
witness to the incident. PW 4 Pramodkumar Prajapati was the elder
son of the deceased and was also an eye witness. PW 5 Dr.Rambhau
Laxman Sanap had conducted the post-mortem examination on the
dead body of the deceased Saheb and he found one incised wound of
the size 8 cm X 5 cm X cavity deep on the abdomen and he had found
that the death was due to haemorrhage and shock following stab
injury over abdomen. PW 6 ACP Rajendra Ghule had investigated the
offence. Besides this oral evidence, the prosecution also produced
other documents including the medical papers in respect of the
injuries suffered by the Appellant No.2 and sons of the deceased
URS 4 of 16
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Pramod and Manoj. All these three had suffered minor injuries.
These medical papers were exhibited vide Exh.32.
6. The prosecution case mainly rests on the evidence of two
eye witnesses PW 2 Meeradevi and PW 4 Pramod. In her evidence,
PW 3 Meeradevi has described the earlier incident dated 05/04/2006
which took place at 6.00 p.m. in respect of the quarrel between the
Appellant No.1 and her daughter on some petty issue involving this
witness's pet dog. Thereafter, this witness has described the incident
which took place at 9.30 p.m. According to her, she, along with her
husband and children, was having dinner. At that time, all the
accused barged into their house armed with knife and wooden logs.
They started abusing and dragged her family out of the house in the
lane. She has further deposed that accused no.4 Kiran and accused
no.2 Prabhakar caught hold of her husband Saheb. The accused no.1
gave knife to her son accused no.3 who inflicted a blow on the
stomach of her husband Saheb. She has further deposed that the
accused no.4 Kiran assaulted Manoj with the wooden log and the
accused no.5 Kishor assaulted Pramod with a heavy wooden stick.
Thereafter the accused left the spot. Her husband was taken to police
station and thereafter to Bhagwati Hospital where he was declared
dead. Thereafter, she went to Kashimira Police Station and lodged
her FIR which is exhibited at Exh.26. The police reached the spot,
carried out the spot panchanama and recovered the wooden sticks
from the spot.
URS 5 of 16
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7. PW 4 Pramodkumar Prajapati who is the son of the
deceased and PW 3, has more or less deposed in a similar fashion
except on some material aspect. There is a slight variance between
their evidence. According to him at about 9.30 p.m. on 05/04.2006,
all the accused came to their house. Accused Prabhakar was armed
with a bamboo stick, accused no.3 was having a knife. His father was
dragged out of the house. He has stated that the accused Kishor beat
him up by fists and kick blows and accused Kiran beat his younger
brother Manoj by fists and kicks. He has further deposed that accused
no.1 Pratibha was instigating by saying, "Maro, Maro". He has further
deposed that during the scuffle, the knife was handed over by accused
no.3 to Pratibha but when she was instigating others, she again
handed it over to accused no.3 who gave a blow with the knife on the
abdomen of his father and thereafter the accused left the spot.
Thereafter, this witness has described the events as deposed to by his
mother PW 3.
8. The Investigating Officer ACP Rajendra Ghule has deposed
about the investigation carried out by him. He has stated that two
wooden logs were seized from the spot of incident. During
investigation, accused no.1 and 2's son accused no.3, juvenile in
conflict with law, produced a knife which was concealed in the
bushes. After completion of the investigation, the I.O filed the charge-
sheet.
URS 6 of 16
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9. We have heard Mr. Aniket Vagal, learned Counsel for
Appellants Nos.1 and 2, Mrs. Rupali Shinde, learned Counsel for
Appellant Nos.3 and 4 and Ms. R. M. Gadhvi, learned APP for the
State. With their assistance, we have perused the record and
proceedings of the case.
10. After reading the evidence carefully, we find that the
evidence of PW 3 and PW 4 appears to be natural. They are the
natural witnesses and there is nothing on record to conclude that they
had not witnessed the incident. PW 3 has deposed about the earlier
quarrel which took place at about 6.00 p.m. Both these witnesses PW
3 and PW 4 have deposed about the events which took place after
9.00 p.m. when the accused came to their house, dragged the
deceased out and in that scuffle, he was assaulted. We see no reason
to disbelieve these witnesses on the main aspect of assault on the
deceased.
11. Having observed this, we find that their evidence does
differ in important details, particularly in respect of the role played by
accused no.1 Pratibha. Similarly, the roles attributed to accused
Prabhakar and Kiran of catching hold of the deceased with the
accused no.3 inflicting the fatal blow, also differ. This difference in
the description of the roles is important in the context of deciding the
common object of their unlawful assembly.
URS 7 of 16
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12. Though PW 4 has stated that the accused no.1 Pratibha
was instigating other accused by saying "Maro, Maro", PW 3, in her
substantive evidence i.e. in her deposition, has not stated so. PW 3
has stated that accused no.1 Pratibha gave knife to her son accused
no.3, then he inflicted the knife blow. She has not stated as to who
was carrying a knife when all of them came together. From the
record, it is apparent that the knife was about 35 cms in length.
Therefore, it could not have been concealed. PW 4 has clearly stated
when they came to their house, the accused no.3 was having a knife.
He has further stated that during the scuffle, accused Pratibha was
given that knife by the accused no.3 and she again handed it over to
him whereon he dealt the fatal blow. It is noteworthy that he has
admitted that he had not told the police that during the scuffle, the
accused no.3 had handed over knife to his mother - accused no.1
Pratibha. So if according to PW 4, the accused no.3 was carrying a
knife and he has not stated before the police that the accused no.3
had handed over that knife at any point to accused no.1, then it is not
possible to conclude that accused no.1 handed the knife to the
accused no.3. Therefore, to that extent, PW 4's evidence does not
corroborate PW 3 Meeradevi's evidence in respect of Pratibha handing
over knife to her son accused no.3.
13. PW 3 has stated that accused no.2 Prabhakar and accused
no.4 Kiran caught hold of her husband Saheb and then the accused
no.3 inflicted a knife blow. However PW 4 has not stated so in his
deposition and no such role is attributed to accused nos.2 and 4 by
URS 8 of 16
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him. The FIR also does not mention that Prabhakar and Kiran had
caught hold of the deceased to facilitate the accused no.3 to inflict
knife blow on his stomach. Thus, this important role of holding the
deceased by the accused nos.2 and 4 is not proved beyond reasonable
doubt by the prosecution.
14. PW 3 has further stated that accused no.4 Kiran assaulted
Manoj with a wooden log and accused no.5 Kishor assaulted her son
Pramod with a heavy wooden stick. However, PW 4 Pramod has
stated that both these accused Kiran and Kishor beat him and his
brother with fists and kick blows. To that extent, PW 3 and PW 4
differ in the narration.
15. Thus, taking overall view of the deposition of PW 3 and
PW 4, we find that though they were eye witnesses and their evidence
can be relied on, still improvements in the evidence and their
contradictions in respect of the actual events can be separated from
their deposition which we find to be truthful. Thus, we find that the
prosecution has proved beyond reasonable doubt that all the five
accused came to the house of the deceased. The juvenile in conflict
with law was carrying a knife. Saheb was dragged out. Thereafter
abuses were hurled and the accused no.3 inflicted a knife blow on the
abdomen of the deceased Saheb.
16. The crucial question now remains as to whether the
common object of their unlawful assembly was to commit murder of
URS 9 of 16
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the deceased. In this connection, it can be seen that the incident
which took place at 9.00 p.m. was an offshoot of the quarrel which
had taken place at 6.00 p.m. between PW 3's daughter and the
accused no.1 Pratibha. At that time, deceased Saheb Prajapati was
not at home and he was not concerned with the quarrel. Therefore,
when all the accused came together to the house of the deceased at
9.00 p.m., obviously, Saheb was not the target. Undoubtedly, the
accused were having weapons and in particular the accused no.3 was
carrying a knife but, apparently, they had not gone there to assault
Saheb Prajapati. They wanted to question the PW 3 and her daughter
regarding the incident which had taken place at 6.00 p.m. In the
incident, the deceased and his family members were dragged out of
the house. PW 3, in her cross-examination, has stated that the
incident had lasted for about 10 to 15 minutes whereas PW 4 stated in
his cross-examination that the incident lasted for about half an hour to
one hour. Therefore, if the common object of the unlawful assembly
of the accused was to commit murder of the deceased Saheb Prajapti,
nothing prevented them from straightaway assaulting him and
committing his murder. If the quarrel went on for at least 15 minutes
or even for half an hour to one hour as deposed to by PW 4, then it
clearly means that the common object was not to commit the murder
but was to pick up a quarrel. Exh.32/2 produced on record by the
prosecution shows that the accused no.2 Prabhakar had suffered CLW
of dimension 2 inches x ½ inch over his right parietal region. This
injury though appears to be simple, it was inflicted on the head and
the prosecution witnesses have not explained this injury; which
URS 10 of 16
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suggests that there was some scuffle going on between both the
parties and if in the scuffle the accused no.3 had assaulted the
deceased, taking all these factors into consideration, the prosecution
has not proved beyond reasonable doubt that the common object of
the unlawful assembly was to commit murder of the deceased.
17. Though the PW 4 has stated that the accused no.1 was
instigating others by saying "Maro, Maro", PW 3, in her substantive
evidence, has not stated so. In this context, Mrs. Rupali Shinde, the
learned Counsel for the Appellant Nos.3 and 4, has relied on the
Judgment of the Hon'ble Supreme Court in the case of Litta Singh
and another Vs. State of Rajasthan1. In the said Judgment, the
Hon'ble Supreme Court has held that the words "Maro, Maro" may not
mean 'Kill, Kill". The Hon'ble Supreme Court, in paragraph nos.16, 17
and 18, has held thus :-
"16. The word "MARO MARO" can never mean "KILL
KILL". The word "KILL" means to cause the death of a
person or animal. It also means to put some one to
death, to murder, to slaughter. On the other hand,
the word "MARO MARO" means to beat, to cause
assault. Here the thin line of distinction lies between
the two words. If the voice is "KILL KILL", it means to
cause death of the person and to finish him. Had the
intention of the person been to make such call or
voice "KILL KILL" and on the basis of such call the
accused persons had assaulted the deceased, then the
intention would have been clearly to kill and murder
the deceased. Here on hearing the call "MARO
MARO", the accused persons with Boga Singh started
beating the deceased.
1 AIR 2013 SUPREME COURT 2554
URS 11 of 16
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17. Considering the nature of the injury caused to the
deceased and the weapons i.e. lathi and gandasi
(sickle) used by them, it cannot be ruled out that
they assaulted the deceased with the knowledge that
the injury may cause death of the person. Moreover,
there is no evidence from the side of the prosecution
that the accused persons pre-planned to cause death
and with that intention they were waiting for the
deceased coming from the field and then with an
intention to kill the deceased they assaulted him.
18. It is well settled proposition of law that the intention
to cause death with the knowledge that the death
will probably be caused, is very important
consideration for coming to the conclusion that
death is indeed a murder with intention to cause
death or the knowledge that death will probably be
caused. From the testimonies of the witnesses, it does
not reveal that the accused persons intended to cause
death and with that intention they started inflicting
injuries on the body of the deceased. Even more
important aspect is that while they were beating the
deceased the witnesses reached the place and shouted
whereupon the accused persons immediately ran
away instead of inflicting more injuries with intent
to kill the deceased."
The learned Counsel for Appellants further relied on the Judgment of
the Division Bench of this Court in the case of Jitendra @ Jitu
Sakharam More & another Vs. State of Maharashtra2. The learned
Counsel invited our attention to paragraph nos.13, 14 and 15 from the
said Judgment which read thus :-
"13. As mentioned earlier, in our view, the learned Judge
however, erred in convicting the appellants-Alex
Joseph, Jitendra More, Vinod Jadhav and Agnelia
2 2001 (5) Bom.C.R. 172
URS 12 of 16
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Fernandes for the offence under section 302 r/w
149 I.P.C. In our view, only an offence under section
304(2) r/w 149 I.P.C. is made out against the said
appellants. In our view, an offence under section
302 I.P.C. simplicitor is made out against the
appellant Nitesh Kasare.
We say this for reasons enumerated hereinafter :---
Firstly, the prosecution evidence does not
suggest even an iota of enmity between the deceased
Rajesh on one hand and the appellants on the other.
It appears that when the deceased Rajesh proceeded
to the rescue of Shaila's husband Mohan, the
appellants were irked.
Secondly, the evidence of Jyoti shows that prior
to assaulting Rajesh, the appellants stated take him
and one of the assailants shouted that he should be
shown how to do goondagiri. It is pertinent to
mention that although Jyoti in a general manner
stated that initially the appellants assaulted Rajesh
but, excepting the two stab wound which were
inflicted on Rajesh at the fag end by appellant Nitesh
Kasare, the remaining injuries found on his person
clearly show that the common object of the
appellants was to teach a good lesson to the deceased
Rajesh. But, even if a stricter view is taken then what
can be said is that when the appellants chose to
attack Rajesh in the manner mentioned earlier, they
had the knowledge of his death as contemplated by
second part of section 304(2) r/w 149 I.P.C.
Thirdly, the evidence of Jyoti shows that after
the appellant-Nitesh Kasare had inflicted fatal gupti
blow on the chest of the deceased Rajesh, the other
appellants did not assault him or do anything which
would suggest that they shared the object to murder
him.
The medical evidence shows that it was this
chest injury (Injury No.1) which was necessarily
fatal.
URS 13 of 16
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14. It would be pertinent to refer to the Division Bench
decision of the Allahabad High Court rendered in the
case of (Moti and others, appellants v. State,
respondents), reported in 1967 Cri.L.J. page 117. In
para 33, the Division Bench has observed thus :---
"The question as to what was the common
object of the unlawful assembly is
essentially a question fact which has to be
determined on the facts and circumstances
of each case. The motive for the crime, the
weapons used in the attack, the conduct of
the assailants, both before and at the time
of the attack are relevant considerations."
15. We may also refer here to the decision of the
Supreme Court reported in A.I.R. 1960 SC 775
(Shambhunath Singh and others, appellants v.
State of Bihar, respondent). As is evident from a
perusal of para 6 of the said judgment, Their
Lordships have approved the following observations
made in the case of (Jahiruddin v. Queen Empress)
I.L.R. 22 Cal. 306.
"But, members of an unlawful assembly
may have a community of object upto a
certain point, beyond which they may
differ in their objects, and the knowledge
possessed by each member of what is likely
to be committed in prosecution of their
common object may vary not only
according to the information at his
command, but also according to the extent
to which he shares the community of object
and as a consequence of this the effect of
section 149 of the Indian Penal Code may
be different on different members of the
same unlawful assembly."
URS 14 of 16
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18. We find that the Judgments relied on by the learned
Counsel for the Appellants are relevant and are applicable to the facts
of the present case. From the prosecution evidence, it is clear that all
the accused had gone there to pick up a quarrel with the deceased's
family. They had not immediately inflicted the blow of knife and
none of the accused inflicted injury or assaulted the deceased after the
accused no.3 stabbed the deceased on his abdomen though it was
possible for all the accused to cause continuous assault and cause
more injuries and harm to the deceased. Thus, there was no intention
to commit murder of the deceased but since the accused no.3 was
carrying a knife, all of them must be held to have knowledge that the
act done by him was likely to cause death. Therefore, we hold that
the Appellants had formed an unlawful assembly and they have
committed an offence punishable under Section 304 Part II read with
149 of the IPC. In this view of the matter, we are of the opinion that
the sentence of R.I. for eight years to each of the Appellant for the
commission of the offence punishable under Section 304 Part II read
with 149 of the IPC will meet the ends of justice. Hence, we pass the
following order :
ORDER
(i) The conviction and sentence awarded to the Appellants for
commission of offence punishable under Section 143 and
148 are maintained.
(ii) The conviction under Section 302 read with 149 of the IPC
and the sentence to suffer R.I. for life recorded against the
Appellants are set aside and, instead, the Appellants are
URS 15 of 16
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convicted for the offence punishable under Section 304
Part II read with 149 of the IPC and they are sentenced to
suffer R.I. for eight years and to pay a fine of Rs.10,000/-
each and in default of payment of fine, to suffer further
R.I. for one year.
(iii) The Appellants shall be given benefit of set off under
Section 438 of the Cr.P.C. for the period already
undergone by them during the investigation and till the
conclusion of the trial.
(iv) The substantive sentences awarded to the Appellants shall
run concurrently.
(v) The Appeal is partly allowed in the aforesaid terms.
(SARANG V. KOTWAL, J.) (A. A. SAYED, J.)
URS 16 of 16
