Bombay High Court
The State Of Maharashtra vs Ramrao Vitthal Dalve & Ors on 17 January, 2018
Bench: T.V. Nalawade
Cri.Appeal 444/2001
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 444 OF 2001
The State of Maharashtra,
through Police Station,
Sonkhed, District Nanded ..Appellant
Versus
1. Ramrao s/o Vitthal Dalve,
Age 30 years, Occu. Agri.,
R/o Wadepuri, Taluka Kandhar,
District Nanded
2. Vasant s/o Sambhaji Bodke,
Age 25 years, Occu. & r/o as above
3. Sopan Vitthal Dalve,
Age 20 years, Occu. & r/o as above
4. Hanmant Venkati Lungare,
Age 25 years, Occu. Agri.,
R/o Bijewadi, District Nanded
5. Venkati Sakharam Lungare,
Age 52 years, Occu. Agri.,
R/o Bijewadi, District Nanded
6. Babus @ Purbhaji s/o Sambhaji
Bodke, aged 30 years,
Occu. Agri., R/o Wadepuri,
Taluka Kandhar, Dist. Nanded ..Respondents
- WITH -
CRIMINAL APPEAL NO.447 OF 2001
The State of Maharashtra,
through Police Station,
Sonkhed, District Nanded ..Appellant
Versus
1. Ramrao s/o Vitthal Dalve,
Age 30 years, Occu. Agri.,
R/o Wadepuri, Taluka Kandhar,
District Nanded
2. Vasant s/o Sambhaji Bodke,
Age 25 years, Occu. & r/o as above
::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:26:07 :::
Cri.Appeal 444/2001
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3. Sopan Vitthal Dalve,
Age 20 years, Occu. & r/o as above
4. Babus @ Purbhaji s/o Sambhaji
Bodke, aged 30 years,
Occu. & r/o as above ..Respondents
Mr R.V. Dasalkar, A.P.P. for appellant
Mr S.S. Choudhari, Advocate for respondents no.1 to 6
CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ
DATE OF RESERVING
THE JUDGMENT : 13.11.2017
DATE OF PRONOUNCING
THE JUDGMENT : 17.1.2018
JUDGMENT (Per A.M. Dhavale, J.)
1. These appeals arise out of common judgment in Sessions Case
No.98/1998 delivered by learned Sessions Judge, Nanded on
18.8.2001 whereby four, out of six accused were convicted for
culpable homicide not amounting to murder, punishable under Section
304 Part II of Indian Penal Code of one Ananda and were sentenced to
suffer rigorous imprisonment for seven years and to pay fine of
Rs.5,000/- each, in default rigorous imprisonment for one year with
directions to pay the compensation of Rs.10,000/- out of the fine
amount to sister of deceased Ananda. Accused nos.1, 2, 3 and 6 were
acquitted of the offences of rioting with deadly weapons and
committing murder of two others Jairam and Govinda. Accused nos.4
and 5 were acquitted of all the offences. The aggrieved State has
preferred Criminal Appeal No.444/2001 against acquittal and Criminal
Appeal No.447 of 2001 for enhancement of sentence under Section
304 (II) read with Sec.34 of Indian Penal Code.
Cri.Appeal 444/2001
2. Deceased Jairam is father of deceased Govinda and deceased
Ananda and one Kerba and P.W.5 Rukhminibai. He was residing with
his children and wife at Wadepuri and was doing agricultural work.
Accused no.1 Ramrao is his nephew. On 3.9.1997, bull of accused
no.1 Ramrao entered the field of Jairam and damaged the crops,
hence, deceased Ananda impounded it in cattle pound, however, on
next day 4.9.1997 his brother Kerba paid the impounding charges and
released the bull. On 5.9.1997, in the morning Kerba, Govinda,
Ananda and Rukhminibai had gone to their field for agricultural work.
They returned at 11.00 a.m. That time, accused no.1 Ramrao, his
brother accused no.3 Sopan and accused no.2 Vasant and accused
no.6 Babus came in front of their house. They were armed with
weapons like axe, knife and sticks. They picked up quarrel with Jairam
as to why he had impounded their bull and rushed at him to assault
him. Then Jairam, Govinda and Ananda started running away. The
accused chased them. Accused no.3 Sopan inflicted a blow of knife in
the abdomen and on skull of Ananda. Accused no.1 Ramrao and two
outsiders (accused nos.4 Hanmant and 5 Venkati) assaulted Govinda
on skull and back by sticks. While Sopan - A-3 and Ramrao A-1 and
one more person assaulted Jairam near the house of 'a mang' by
means of knife and stones on skull. P.W.5 Rukhminibai tried to rescue
her father. Accused no.3 Sopan inflicted a knife blow on her back. Her
father died on the spot. At the time of incident, Kerba escaped the
assault. The incident was witnessed by several villagers. P.W.5
Rukhminibai accordingly lodged F.I.R. Crime was registered at
C.R.No.58/1997 under Sections 302, 307, 147, 148, 149 of Indian
Cri.Appeal 444/2001
Penal Code and Section 135 of Bombay Police Act at Sonkhed police
station on the same day at 2.00 p.m. and the same was investigated
into by P.W.11 A.P.I Arvind Shinde and P.W.12 A.P.I. Shaikh Ismail.
Earlier, the Police of Sonkhed Police Station received message about
some persons receiving injuries at Wadepuri. P.W.12 A.P.I. Shaikh
Ismail sent police jeep and brought the injured to the hospital. The
investigation revealed that on the next day, i.e. 6.9.1997 Ananda and
on 7.9.1997 Govinda succumbed to the injuries. On 5.9.1997, at 8.30
p.m. dying declaration of Ananda was recorded by P.W.9 Judicial
Magistrate Bhutada. The Police drew spot panchnama, inquest
panchnama. All the accused came to be arrested. During
interrogation, they made discoveries of different weapons. Their
statements were recorded and in pursuance thereof, the weapons
discovered were seized. The clothes of the injured/deceased were
seized. All seized articles were sent to Chemical Analyst and the
Chemical Analyst's reports were collected. During investigation, it was
revealed that three persons were assaulted at different places. There
was also counter case in which two accused persons were wounded.
After completion of investigation, the charge-sheet was submitted in
the Court. There was a counter case also filed against Kerba son of
deceased Jairam and brother of deceased Ananda and Govinda.
3. In due course, the case was committed to the Court of Sessions.
The charge was framed at Exh.6 under Sections 147, 148, 302 read
with Sec.149, 307 read with Sec.149 of Indian Penal Code and under
Section 37 read with Sec.135 of the Bombay Police Act. The
prosecution examined 14 witnesses. The defence of the accused is of
Cri.Appeal 444/2001
total denial. According to them, deceased Jairam was a known thief of
cattle and he was in habit of impounding the cattle and then claiming
those cattle. At the time of incident, there was assault by deceased
persons on accused no.3 Sopan and accused no.6 Babus. Babus had
stab wound in the abdomen and his intestine protruded out with
heavy bleeding. Some lamhani persons were against Jairam and his
son and they might have killed them.
4. Out of 14 witnesses, the main witness is P.W.5 Rukhminibai,
who was injured eye witness. She has been disbelieved by learned
Sessions Judge. The reliance was placed on dying declaration
recorded by P.W.9 J.M.F.C. Bhutada Exh.69 of deceased Ananda and
on the basis of the same, accused nos.1 Ramrao, accused no.2
Vasant, accused no. 3 Sopan and accused no.6 Babus were held guilty
for offence under Section 304 Part II of the Indian Penal Code. Hence
these appeals.
5. Learned A.P.P. Mr R.V. Dasalkar submitted that the accused
had been to the house of deceased Jairam and when Jairam, Ananda
and Sopan were running away due to fear, they were chased and
assaulted and injured. P.W.5 Rukhminibai, sister of Ananda and
Sopan had also sustained stab wound on the back. Her evidence is
supported by dying declaration of deceased Ananda. All the accused
should have been convicted for committing three murders and
attempting to commit murder of P.W.5 Rukhminibai and other
offences charged. Hence, the appeal be allowed.
Cri.Appeal 444/2001
6. Learned Advocate Mr S.S.Choudhari for the respondents argued
that most of the prosecution witnesses have turned hostile. P.W.5
Rukhminibai, the informant has narrated a story, which is totally
inconsistent with her previous statement before Police as well as
before Judicial Magistrate, First Class. Her brother Kerba who was eye
witness is not examined. Rukhminibai has suppressed the genesis.
She has not given any explanation about the injuries sustained by two
accused. According to her, statement under Section 164 of Cr.P.C.
she was in the field when she learnt about assault on her father.
Therefore, she could not have witnessed the assault on her father, as
the field is far away from her house. Besides, the assaults on Jairam,
Ananda and Govinda had taken place at different places. Her
evidence is not trustworthy and reliable and it has been rightly
discarded by the learned trial Judge. As far as evidence of P.W.9
J.M.F.C. Bhutada is concerned, he argued that the evidence discloses
that Ananda was operated and tubes were fitted in his chest and
nostril. He was not in a position to speak, he was serious. His
consciousness to make a statement is very much doubtful. The
prosecution has not explained injuries sustained by two accused
persons. The learned Judicial Magistrate, First Class had not
personally verified the consciousness of Ananda. He has taken
signature of the deceased Ananda at two places. He has not followed
the proper procedure while recording the dying declaration, hence
the dying declaration should not be believed and both the appeals
should be dismissed.
Cri.Appeal 444/2001
7. The points for our consideration with our findings are as follows:
(I) Whether deceased Jairam, Ananda
and Govinda met with homicidal
death ? .. In the affirmative
(II) Whether all the accused formed
unlawful assembly and in
prosecution of the unlawful .. No,
assembly used force ? Accused nos.1,2,
3 and 6 came with
common intention
(III) Whether all the accused in
prosecution of the common
object of the assembly were
armed with deadly weapons
while committing riot ? .. Does not survive
(IV) Whether all the accused in
prosecution of common object
of the assembly committed
murders of Jairam, Ananda
and Govinda ? .. Murder of Jairam
and Govinda by
the accused - not
proved;
Culpable homicide
not amounting to
murder of Ananda
by accused nos.1,
2, 3 and 6 - proved
(V) Whether all the accused in
prosecution of the common
object of the assembly
attempted to commit murder
of P.W.5 Rukhminibai ? ..Not proved
Cri.Appeal 444/2001
(VI) What order and sentence ? ..Both the appeals
are dismissed
- REASONS -
8. The prosecution examined 14 witnesses, which may be
conveniently grouped as follows :
(I) Eye witness : P.W.5 Rukhmini
(II) Medical witnesses :
P.W.1 Dr. Hemant Godbole: He has conducted post mortem on
the dead body of Jairam on 6.9.1997. His post mortem notes are at
Exh.29. On 6.9.1997 he conducted post mortem on the dead body of
Ananda and his post mortem notes are at Exh.30. On 7.9.1997, he
conducted post mortem on the dead body of Govinda. His post
mortem notes are at Exh.31. He had received the request letters for
post mortem Exh.33, 34 and 35. Dr. Godbole opined that the injuries
sustained by Jairam, Ananda and Govinda were possible by weapons
like axe, crow bar, sticks.
P.W.14 Dr. Nitin Bilolikar : He has examined P.W.5 Rukhminibai on
5.9.1997 and issued certificate Exh.90. Besides, medical certificate of
accused nos.6 @ Purbhaji is at Exh.95 and medical certificate of
accused no.1 Ramrao is at Exh.96.
(III) Panch witnesses :
P.W.2 Uttam, panch to the seizure of blood stained clothes of
Jairam and Ananda Exh.47.
Cri.Appeal 444/2001
P.W.4 Vyankati, panch to the inquest panchnama of Ananda
Exh.52.
P.W.6 Govinda, panch to the spot panchnama, did not support
prosecution.
P.W.7 Ratan, panch to the inquest panchnama of Jairam Exh.61.
P.W.8 Vyankati, panch to the spot panchnama - cross-examined
by A.P.P. In cross by the accused, he has admitted and deposed the
defence story.
(IV) Evidence to the Dying Declaration :
P.W.9 J.M.F.C. Bhutada - dying declaration of Ananda Exh.69
P.W.13 Dr. Munjaji Mohite : He was duty Medical Officer. While
recording dying declaration of Ananda, on request of learned J.M.F.C.
P.W.9 Bhutada, he had examined Ananda and issued certificate about
his consciousness and ability to speak Exh.86.
(V) Police witnesses :
P.W.10 - Baliram Waghmare, a carrier of covering letter with
acknowledgement Exh.71.
P.W.11 A.P.I. Shinde - He carried out subsequent investigation,
arrested accused no.4 Hanmant and forwarded Muddemal to Chemical
Analyst and received Chemical Analyst's reports Exh.73 and 74.
P.W.12 A.P.I. Shaikh is the main Investigating Officer. He has
deposed about recording of F.I.R. Exh.57, drawing inquest panchnama
of Jairam Exh.61, Ananda Exh.62 and Govinda Exh. 52. He had
attached receipt of (cattle pound) from the pocket of Jairam Articles B-
Cri.Appeal 444/2001
1 and B-2. Spot panchnama Exh.78. Seizure of samples of ordinary
soil and blood mixed soil. Seizure of blood stained clothes Exh.47. He
has deposed about voluntary statement given by accused no.2
Vasanta and recovery of stick from the house of accused no.1 Ramrao
Exh.79. Voluntary statement and recovery of stick Exh.80. Statement
of accused no.3 Sopan and discovery of crow bar Articles 81 and 82.
Discovery of axe by accused no.1 Ramrao. Memorandum and
panchanama Exh.83 and 84.
9. The evidence of P.W.1 Hemant shows that Jairam had sustained
nine injuries. Some of which were lacerated wounds on right ear
pinna and left ear pinna with cutting of pinna and right black eye,
lacerated wound on face, lacerated wound on scalp and four
abrasions. There were corresponding internal damage noted in the
skull. He opinion that Jairam died due to 'Depressed fracture of vault'
Similarly, he deposed that Ananda had a right black eye and eight
injuries, out of which two incised wounds on chest, one injury on the
abdomen resulted into internal damage. He had also contusions on
scalp right frontal region, right parietal, left on the occipital region. He
opined that Ananda died due to shock due to stab injuries. Dr.
Godbole stated that deceased Govinda had eight injuries, mostly
abrasions, but one contusion over face, temporal region. It produced
haematoma under scalp and fracture of vault, which was cause of
death. His evidence regarding causes of death of Jairam, Govinda and
Ananda has not been challenged. We, therefore, hold that deceased
Jairam, Ananda and Govinda all met with homicidal death.
Cri.Appeal 444/2001
10. P.W.5 Rukhminibai is the main witness to the incident. She is
illiterate rustic woman, unable to give details about date and time of
the incident. As per her deposition, on that day, there was
programme of 'Tervi' of one Shewantabai in the village and several
people were coming there. She deposed that two days before the
incident, bullock of accused no.1 Ramrao, who happens to be her
cousin, had entered her father's field and, therefore, it was required to
be impounded by Ananda in cattle pound, but subsequently, Kerba
deposited the impounding charges and released the bullock. On
receipt of Exh.B-1 and B-2 in the pocket of Jairam supports this story.
From the date of incident, i.e. 5.9.1997, Rukhminibai with Ananda and
Govinda had gone to their agricultural field for seed plantation and at
about noon time, they three returned. That time, accused no.1
Ramrao, Accused no.2 Vasant, accused no.3 Sopan and accused no.6
Babus and two more persons from Vijaywadi came to her house and
called her father. She stated that those two persons were father-in-
law and brother-in-law of Ramrao A-1. Her brothers had returned to
house for taking bath and breakfast and intended to go to field again.
As accused no.1 Ramrao called her father out of the house, her father
came out. That time, Ramrao A-1 was having crow bar and axe in his
hand. Sopan A-3 was having knife and Babus A-6 and other three
accused were having sticks. On seeing the accused persons armed
with weapons, Jairam started running away towards mangwada
locality and her brothers also followed him. She also followed them.
She stated that accused nos.1, 2, 3 and 6 gave stick blows on the
person of Jairam, he fell down, received injuries on head and back and
Cri.Appeal 444/2001
then, Ramrao A-1 gave blow of crow bar on his forehead. Her father
shouted as 'Purey-Purey' (enough-enough), but they continued to
assault him and he died on the spot. She deposed that Sopan A-3
assaulted her brother by means of knife on his left eye and abdomen.
Her brother Govinda was assaulted by A-2 Vasant, A-6 Babus and two
relatives of Ramrao. Her brothers were injured and fell down in
mangwada locality. A-3 Sopan gave a blow of knife on her back at the
center. As per her evidence, all the three persons were assaulted in
mangwada locality and she was also lying there in injured condition.
Then police came and took them to the police station and then to the
hospital at Nanded.
11. P.W.5 Rukhminibai has proved her F.I.R. Exh.57. Her cross-
examination reveals that her father's field and the field of the accused
are not adjacent to each other. There is one field in between
belonging to Shivram, who is brother of her father. The said field was
used for grazing the cattle. There is open drain in the village Wadepuri
and there are mangwada and baudhawada localities connected with
the other area by separate bridges. Besides, there is one bridge
known as 'Lendicha Pool". She denied the contents of her F.I.R. that
her father had accompanied her to the field. Her evidence that
accused no.1 Ramrao called out her father, her father was shouting as
'Purey-Purey' (enough-enough) is not there in the F.I.R. She has
deposed that accused no.1 was having crow bar, but she could not
give explanation why it is not there. Her statement that her father
was assaulted by accused nos.1, 2, 3 and 6 is also not in the F.I.R.
Her evidence that accused no.1 Ramrao gave blow of crow bar on the
Cri.Appeal 444/2001
forehead of her father is not in the F.I.R. Her evidence that accused
no.2 Vasant and accused no.6 Babus assaulted her brother Govinda is
not specifically disclosed in the F.I.R.
11. Per contra, it is brought on record that one lamhani had
assaulted her father Jairam, she denied the said fact. Her statement
before police shows that her father and brother were killed in
baudhawada. She denied this fact. In further cross, she admitted that
her brothers were not at home and her father was alone at home. She
was unable to tell date and time of the various events. She denied
that she and her brothers while in field learnt about assault on Jairam,
but could not explain why this fact was so recorded in her statement
before the Judicial Magistrate, First Class. Her evidence shows that her
brother Kerba was also an eye witness and he had ran away. She
denied that her brothers had assaulted accused no.3 Sopan and
accused no.6 Babus by means of knife and katti. She denied that her
father was indulging in theft of bullocks by impounding them and then
getting them released in his own favour. She denied that lamhani
persons were angry with her father and had assaulted her father. Her
F.I.R. is silent about the involvement of father-in-law and brother-in-
law of accused no.1 Ramrao (accused nos.4 and 5).
12. On carefully considering her evidence in the light of other
evidence, we find that she is not telling the truth. She has not
deposed anything about the injuries sustained by accused no.3 Sopan
and accused no.6 Babus when there are medical certificates Exh.95
and 96 showing injuries on their persons. Besides as per dying
Cri.Appeal 444/2001
declaration, Ananda was assaulted at baudhawada, whereas Jairam
was assaulted at mangwada. P.W.5 Rukhminibai stated that she and
her father and brothers were all assaulted at mangwada. Her material
evidence is inconsistent with her previous statement in the form of
F.I.R. and statement under Section 164, Cr.P.C. The learned trial
Judge has disbelieved her. We find that the learned trial Judge has
rightly disbelieved her as her evidence does not inspire confidence.
13. Then, the only material evidence that remains is in the form of
dying declaration led by P.W.9 J.M.F.C. Bhutada and P.W.13
Dr.Mohite. As per their evidence on 5.9.1997 at 8.30 p.m. J.M.F.C.
Bhutada received a request letter for recording dying declaration
Exh.68. He then on his bike went to the hospital at 8.30 p.m. He
made enquiry with P.W.13 Dr. Mohite and went to the patient. Dr.
Mohite has examined the patient as per his request and he certified
that he was conscious and able to speak. Accordingly, his
endorsement was taken on paper and dying declaration was recorded.
The Medical Officer was present in the hospital throughout the
recording of dying declaration and at the end of dying declaration, he
again made endorsement about patient's ability to speak and
consciousness Exh.86. P.W.9 J.M.F.C. Bhutada has deposed that he
personally made some questions and verified his understanding
capacity. He was found physically and mentally fit but his questions
and answers were not recorded in dying declaration. He asked
questions and recorded dying declaration in question and answer
form. He stated that he recorded the answers as per the answers
Cri.Appeal 444/2001
given by Ananda. Thereafter he read over the dying declaration. It
was admitted to be correct and thereafter, he obtained signature of
Ananda. Again Ananda was examined by Medical Officer. Thereafter,
he made his endorsement on the dying declaration. As some part of
the earlier signature of Ananda was on the endorsement, he again
obtained signature of Ananda. On the next day noon, Ananda has
died. The cross-examinations of these witnesses disclose that Ananda
had received severe injuries and was operated. Both of them were
unable to disclose whether a tube was fixed in his chest for draining
out fluid and whether he was operated on abdomen and chest. The
cross-examination was directed to show that due to brain damage, the
patient was not in a position to speak, but both the witnesses have
categorically denied the said fact.
14. P.W.9 J.M.F.C. Bhutada and P.W.13 Dr. Mohite are independent
witnesses. They are holding responsible posts and are presumed to be
honest persons. They have no enmity with the accused. There were
no other persons to tutor Ananda for making such statement. The
dying declaration Exh.69 is recorded after taking precautions and the
dying declaration is not consistent with the evidence of Rukhminibai,
who could alone have tutored Ananda. Deceased Ananda has stated
that the incident took place in baudhawada. He had impounded bull
of accused no.1 Ramrao as it had grazed in his hybrid crop and,
therefore, accused no.1 Ramrao, accused no.2 Vasant, accused no.3
Sopan, accused no.6 Bapus had given fist and kick blows on the
earlier day. On the day of incident, all of them came there and
assaulted him with knife, sticks and stones. He stated that Ramrao
Cri.Appeal 444/2001
had inflicted blow of knife on his abdomen and Babus - A-6 inflicted
blow of knife near his eye. The trial Court did not find any reason to
disbelieve P.W.9 and P.W.13. We also have no reason to disbelieve
both of them.
15. It is true that the dying declaration is silent regarding the
injuries sustained by accused no.3 Sopan and accused no.6 Bapus,
however, the incident has taken place at different places. Jairam was
assaulted at Mangwada, whereas Ananda was assaulted at
baudhawada. Ananda had not deposed about assault on his father
Jairam and sister Rukhminibai and brother Govinda in his presence.
There is nothing on record to show that accused no.3 Sopan and
accused no.6 Bapus had received injuries at the hands of Ananda. The
dying declaration of Ananda is wholly corroborated by evidence of
P.W.1 Medical Officer Dr. Godbole. He has described the injuries
sustained by Ananda as follows :
1) Right eye-black eye;
2) Sutured wound over face - lateral end of right eye-brow three
stitches in situ - wound length 2.5 c.m. - wound healthy;
3) Two abrasions over left cheek - laterally 1 x 1 cm x 3.5 x 0.5
cm in reddish;
4) Sutured wound over chest left side oblique - medially
corresponding to 6th rib and laterally to axilla - 15 stitches in
situ wound length about 14 cm - wound healthy;
Cri.Appeal 444/2001
5) Incised (surgical) wound on chest left side - in 6 th I.C. space
laterally, size 1 x 0.5 cm rubber drain seen protruding this
wound - wound healthy;
6) Sutured surgical wound over abdomen - left side ( paramedian
incision) - upper end - 2 cm below-xiphisternum level and lower
end 4 cm below umbilicus level - 13 stitches in situ - wound
length 12.5 cm - wound healthy;
7) Sutured wound over chest - lower aspect laterally - 6 cm
lateral to upper end of wound no.6 above oblique 7th I.C. space
- 3 stitches in situ - wound healthy about length 2.5 cm;
8) Incised wound on abdomen left side - iliac region of 1 x 0.5 cm
wound healthy.
These injuries are consistent with the dying declaration. We,
therefore, find that the dying declaration of Ananda is truthful, reliable
and trustworthy.
16. The main injuries to Ananda are injury nos.1, 4, 5, 6, 7 and 8. As
per Ananda's dying declaration, two incised wounds were caused to
him, one by Ramrao A-1 on his abdomen and other by Bapus A-6 near
his eye. The cross-examination reveals that injury nos.5, 6 and 8 are
surgical wounds. He was operated for removing the blood collected in
the chest and abdomen cavities.
17. The injuries by knife one single injury on the abdomen and
single injury on the eye will not be sufficient in the ordinary course of
nature to cause his death. Abdomen is not a fatal part. Though the
Cri.Appeal 444/2001
assailants knew that by causing such injury, they were likely to cause
death of Ananda. It cannot be inferred that they had an intention or
higher degree of knowledge which is required for holding the accused
guilty under Section 302 read with Sec.34 of Indian Penal Code.
18. We do not agree with the reasoning of the learned trial Judge
that the injuries were caused to Ananda in free fight. There was a
motive for commission of attack. Accused nos.1, 2, 3 and 6 are
related to each other. They came together for assault armed with
weapons and they have committed attack with prior concert. It is not
at all a case of free fight. When some of the accused were armed with
knives, it can be assumed that all other knew that they were likely to
use knives for causing grievous injuries likely to cause death.
Considering the fact that there was only stab wound in the abdomen
and one stab wound near the eye, we find that injuries do not indicate
that the accused intended to cause death of Ananda. There is no
material to show that injuries were sufficient in the ordinary course of
nature to cause death. We, therefore, find that injuries caused by the
accused were likely to cause death and the injuries were caused with
knowledge. Therefore, learned trial Judge has rightly held the accused
guilty for the offence punishable under Section 304 Part II read with
Section 34 of the Indian Penal Code.
19. We find that there is no evidence against accused nos.4 and 5
and the learned Sessions Judge has rightly acquitted them. The
learned Sessions Judge rightly held that there was no evidence that
accused nos.1, 2, 3 and 6 committed murder of Jairam and Ananda or
Cri.Appeal 444/2001
attempted to commit murder of Rukhmini. He rightly held accused
nos.1, 2, 3 and 6 guilty for committing culpable homicide of Ananda
not amounting to murder punishable under Section 304 (II) of the
Indian Penal Code. Considering the fact that the incident has taken
place 20 years back and there was some compromise between the
parties which resulted into non-examination of Kerba, we do not want
to interfere with the sentence imposed. Hence, we pass the following
order:
- ORDER -
Both the Criminal Appeals No.444 of 2001 and 447 of 2001 are
dismissed.
( A.M. DHAVALE, J.) ( T.V. NALAWADE, J.)
vvr
