Bombay High Court
Prakash Maroti Gaikwad & Ors vs State Of Maha on 25 January, 2018
Bench: S.P. Deshmukh
1 Cr. Appeal 40.2003 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 40 OF 2003
1. Prakash S/o Maroti Gaikwad
Age : 38 Yrs., Occ.
R/o : Muje Chandola,
Taluka : Mukhed, Dist. Nanded.
2. Atmaram S/o Maroti Gaikwad
Age : 27 Yrs., Occ.
R/o : Muje Chandola,
Taluka : Mukhed, Dist. Nanded.
3. Bhaurao s/o Sadba Gakwad
Age : 53 Yrs., Occ.
R/o : Muje Chandola,
Taluka : Mukhed, Dist. Nanded.
[Deleted as per Court's Order .... APPELLANTS/
dated 22/01/2003]. [ORI.ACCUSED NOS. 1 TO 3]
V E R S U S
The State of Maharashtra
Through Police Station Mukhed
at the instance of
Ganpati s/o Jalsinga Gaikwad
R/o : Chandola, Tq. : Mukhed, .... RESPONDENT/
Dist.: Nanded. [ORI.COMPLAINANT]
::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:26:49 :::
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......
Shri. P.P.Mandlik, Advocate for Appellants.
Mrs. V.S.Choudhary, A.P.P. for Resp. - State.
......
CORAM : SUNIL P. DESHMUKH &
P.R.BORA, JJ.
JUDGMENT RESERVED ON : 12th JANUARY, 2018
JUDGMENT PRONOUNCED ON : 19th JANUARY, 2018
......
JUDGMENT : [PER - P.R.BORA, J.]
1. The appellants have filed present Appeal against the
Judgment and Order dated 06/01/2003 passed by the Additional
Sessions Judge, Biloli, District Nanded in Sessions Case No.
33/1993, whereby the appellants have been convicted for the
offence punishable u/s 302 r/w 34 of I.P.C. as well as u/s 324 r/w
34 of I.P.C. and have been awarded sentence of life imprisonment
with fine of Rs. 500/- each and Rigorous Imprisonment for six
months with fine of Rs. 500/- each for the respective offences.
2. The facts in brief as are necessary for the decision of
this Appeal may briefly be stated thus :
The appellants [hereinafter referred to as 'the
accused'] are residents of village Chandola, Taluka Mukhed,
3 Cr. Appeal 40.2003 - [J]
District Nanded. The aggrieved persons, at whose instance the
accused were prosecuted, are also from the same village. There
was a dispute between accused and the aggrieved persons in
respect of one agricultural land which was admittedly belonging to
one Krishnabai. Some civil dispute had taken place pertaining to
the said land, which was ultimately compromised and the said
land was equally allotted to Nilkanth and Dadarao. The present
accused were claiming through Nilkanth while the aggrieved
persons were claiming through Dadarao. On 26/06/1991, the
accused had sown the said land to the extent of 2 ½ Acres i.e. half
of the said land. On the next day viz. on 27/06/1991, deceased
Dadarao, his brother Ganpati and his nephews viz. Ganpati and
Venkat had been to the said land for sowing the remaining half
portion of the said land. The accused prevented Dadarao and
Ganpati, etc. from carrying out the sowing operation. At that time,
the scuffle had taken place between Dadarao, Ganpati, etc. on one
side and accused persons and one Bhaurao on other side. In the
clash so occurred, both the groups made assaults on the members
of each other's group. It was the allegation against the accused
that because of the assaults made by them on Dadarao, he
ultimately suffered the death. According to the case of
prosecution, the accused have knowingly and intentionally caused
the death of Dadarao by making assaults on his head by means of
sticks. The accused were also alleged to have seriously injured
4 Cr. Appeal 40.2003 - [J]
Gunwant s/o Ganpati Gaikwad and Venkat s/o Ganpati Gaikwad.
The complaint in that regard was lodged by Ganpati Gaikwad at
police station Mukhed, whereupon the offence was registered
against the accused u/s 307 and 324 of I.P.C. and the investigation
was set in motion. Since Dadarao died after lodging of the
complaint, the offence registered against the accused u/s 307 r/w
34 of I.P.C. was converted into the offence punishable u/s 302
r/w 34 of I.P.C. One Bhaurao Sadaba Gaikwad was also an
accused with present two accused. The police after completing the
investigation in the matter, filed charge sheet against the accused
for the offence punishable u/s 302 r/w 34 of I.P.C. After the said
case was committed to the Court of Sessions, the charge was
framed against the accused persons for the offence punishable u/s
302 r/w 34 of I.P.C. and u/s 324 r/w 34 of I.P.C. In order to
prove the guilt of the accused, as many as six witnesses were
examined by the prosecution and certain documents were placed
on record. The accused denied the charges levelled against them.
According to the accused, they were falsely implicated in the
alleged crime. The learned Additional Sessions Judge after having
assessed the oral as well as documentary evidence on record, held
the present appellants guilty for the offence punishable u/s 302
r/w 34 of I.P.C. as well as u/s 324 r/w 34 of I.P.C. Accused No. 3
Bhaurao Gaikwad was acquitted of all the charges levelled against
him. Aggrieved by, the accused have preferred the present Appeal.
5 Cr. Appeal 40.2003 - [J]
3. Shri. Pratap Mandlik, the learned counsel appearing
for the accused criticized the impugned Judgment on several
grounds. According to Shri. Mandlik, the learned Additional
Sessions Judge has erroneously held the accused guilty for the
offence punishable u/s 302 r/w 34 of I.P.C., though no evidence
has come on record against them. The learned counsel further
submitted that the prosecution has examined only the interested
witnesses and though the independent witness was available, has
omitted to record his evidence. The learned counsel further
submitted that there are variations in the evidence of prosecution
witnesses even in respect of the core incident. The learned
counsel further submitted that the prosecution has utterly failed in
providing any explanation as about the injuries sustained by the
accused persons. The learned counsel further submitted that the
evidence of recovery is shrouded with doubts and no reliance
could have been placed by the learned Additional Sessions Judge
on such evidence. The learned counsel further submitted that the
medical evidence also has not been properly appreciated by the
learned Additional Sessions Judge. The learned counsel further
submitted that the trial Court has also failed in appreciating that
the prosecution has utterly failed in bringing on record any cogent
and sufficient evidence to prove the intention of the accused in
making such assault on deceased Dadarao as well as other two
injured witnesses. The learned counsel submitted that in absence
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of any cogent and sufficient evidence showing complicity of the
accused in commission of the alleged crime, none of the accused
was liable to be held guilty for the offence punishable u/s 302 r/w
34 of I.P.C. and u/s 324 r/w 34 of I.P.C. The learned counsel,
therefore, prayed for setting aside the impugned Judgment and
order and consequently to acquit the accused of all the charges
levelled against them. In the alternative, the learned counsel
submitted that even if the entire evidence is accepted as it is, none
of the accused could have been held guilty for the offence u/s 302
of I.P.C. The learned counsel submitted that from the evidence on
recored, it is difficult to hold that the accused were intending to
cause death of Dadarao or were knowing that because of the
assault allegedly made by them, death of Dadarao was likely to be
caused and in the circumstances the accused can be at the most
held guilty for causing hurt to Dadarao.
4. Mrs. V.S.Choudhari, the learned A.P.P. supported the
impugned Judgment and Order.
5. We have carefully considered the submissions made
on behalf of learned counsel appearing for the accused and the
learned A.P.P. representing the State. We have also perused the
impugned Judgment and entire evidence on recored. After having
gone through the oral and documentary evidence on record, there
7 Cr. Appeal 40.2003 - [J]
remains no doubt that on 27/06/1991 there was free fight
between the accused and one Bhaurao on one side and deceased
Dadarao, etc. on the other side. Though it was sought to be
canvassed by Shri. Mandlik, the learned counsel for the accused
that the evidence of the prosecution witnesses is too vague to
record any definite conclusion as to which assault was made by
which accused on deceased Dadarao as well as on Gunwant s/o
Ganpati Gaikwad [P.W.1] and Venkat s/o Ganpati Gaikwad
[P.W.2] which resulted in causing death of Dadarao and making
injured P.W. 1 and P.W.2 and as such none of the accused could
have been convicted, we are not impressed with the submissions
so made by Shri. Mandlik.
6. The prosecution has examined two injured eye
witnesses viz. Gunwant s/o Ganpati Gaikwad [P.W.1] and Venkat
s/o Ganpati Gaikwad [P.W.2]. The evidence of these witnesses
assumes vital importance. P.W. 1 Gunwant has specifically
deposed that accused No. 2 Atmaram made assault on the head of
deceased Dadarao with the stick. P.W. 1 Gunwant has further
deposed that accused No. 1 Prakash did also hit a stick blow on the
head of deceased Dadarao. P.W. 1 Gunwant has also deposed
that he received stick blows at the hands of accused No. 1 Prakash
on his knees, legs, thighs as well as on the head.
8 Cr. Appeal 40.2003 - [J]
7. Perusal of the evidence of P.W. 2 Venkat reveals that
he has sufficiently corroborated the facts as were deposed by P.W.
1 Gunwant. P.W. 2 Venkat has testified that accused No. 1
Prakash and accused No. 2 Atmaram had assaulted deceased
Dadarao on his head with the sticks in their hands, because of
which Dadarao fell down. P.W. 2 Venkat has also deposed that
accused No. 1 Prakash gave two blows of stick on his chest. P.W. 2
has also deposed about assaults made by accused Nos. 1 and 2 on
person of P.W. 1 Gunwant. In the cross examination of both these
witnesses, no such material or circumstance has been brought on
record so as to discard or disbelieve the facts stated by these two
witnesses and more particularly as about the assaults made by
accused Nos. 1 and 2 on deceased Dadarao.
8. From the evidence of the aforesaid two injured
witnesses, the prosecution has sufficiently proved that both the
accused had assaulted deceased Dadarao with sticks on his head.
The medical evidence corroborates the facts stated by P.W. 1 and
2 that deceased Dadarao was assaulted by accused Nos. 1 and 2
on his head. In the postmortem examination report of deceased
Dadarao, the following injuries were noticed on his person :
[i] CLW on right parieto Frontal region 6" x 2"
horizontal.
9 Cr. Appeal 40.2003 - [J]
[ii] CLW oblique on left parieto area of head 1 ½ " x
½ ".
[iii] CLW on left wrist joint Dorsel 2" x 1" size. All
injuries ante mortem.
Internal Examination, following injuries :
[i] A big wound bone deep
[ii] Fracture on right parietal bone horizontal 4" x ¼ "
[iii] Bleeding on right side of injury.
9. The probable cause of death, as has been suggested
in the postmortem examination report, is shock due to Cardio
Respiratory Arrest due to head injury trauma over right parietal.
It is thus evident that the prosecution has, beyond reasonable
doubt, proved that accused Nos. 1 and 2 had made assaults on the
head of deceased Dadarao causing the head injury, as reflected in
the postmortem examination report.
10. Shri. Mandlik, the learned counsel for the accused
submitted that admittedly there was a fight between two groups
and assaults were made by both the groups on the members of
each other's group. Shri. Mandlik further submitted that the
evidence which has come on record points out that deceased
10 Cr. Appeal 40.2003 - [J]
Dadarao also entered into the said scuffle and in an attempt by
him of making assaults on the accused, he fell down on the
ground. The learned counsel submitted that the possibility of
Dadarao receiving injuries because of such fall on ground can not
be ruled out in absence of any specific evidence as to which of the
injury was caused to deceased Dadarao because of the alleged
assaults made by the accused persons on his head. Shri. Mandlik
further submitted that the another fact which has come on record
that deceased Dadarao was under the influence of liquor at the
relevant time, also can not be ignored. The learned counsel
submitted that since deceased Dadarao had heavily consumed
liquor, was unable to keep his balance and as such he, at his own,
fell down on the ground and received injuries.
11. The submissions so made by Shri. Mandlik are
difficult to be accepted in view of the evidence on record which we
have discussed herein above. Whether the assaults made on
deceased Dadarao ultimately resulted in causing his death and
whether such assaults were made by the accused with intention
and knowledge of causing death of deceased Dadarao, are the
questions which need to be considered independently, however,
from the evidence on record we have no doubt that the
prosecution has sufficiently proved that accused No. 1 Prakash and
accused No. 2 Atmaram made one assault each with the stick on
11 Cr. Appeal 40.2003 - [J]
the head of deceased Dadarao.
12. As noted above, the next question now arises, whether can
it be held on the basis of the evidence on record that accused Nos.
1 and 2 were commonly intending to cause death of deceased
Dadarao by making such assault and whether they were having
knowledge that by such assaults death of Dadarao was likely to be
caused. The conclusion recorded by the learned trial Court that
accused Nos. 1 and 2 knowingly and intentionally caused the
death of Dadarao is based on the fact that accused Nos. 1 and 2
both made an assault on deceased Dadarao with stick on his head,
which is vital part of the body. The trial Court has further
observed that looking to the nature of injuries caused to deceased
Dadarao, an inference can be drawn that sufficient force was
applied by both the accused while making assault on deceased
Dadarao. It is further observed by the learned trial Court that
both the accused were quite aware of the fact that Dadarao was an
old aged person and was at the relevant time in drunken
condition. According to the learned trial Judge, in spite of having
knowledge of both the aforesaid facts when the accused made
assault on the head of deceased Dadarao, the intention as well as
knowledge both are to be attributed on the part of the accused. In
the circumstances, the learned trial Court has held both the
accused guilty for the offence punishable u/s 302 r/w 34 of I.P.C.
12 Cr. Appeal 40.2003 - [J]
13. We are, however, unable to agree with the finding so
recorded by the learned trial Judge. Firstly, the learned trial Court
has nowhere recorded and discussed that the accused were having
any common intention to cause the death of Dadarao. No such
inference can be drawn even from the testimonies of the
prosecution witnesses and more particularly P.W. 1 Gunwant and
P.W. 2 Venkat that accused Nos. 1 and 2 were having a common
intention to cause death of Dadarao while they entered on the spot
of occurrence. What apparently reveals from the entire
prosecution case and the evidence brought on record during the
course of the trial is the fact that the accused were intending to
restrain Dadarao and his team from sowing the field, which
allegedly was owned by them. The evidence on record further
shows that when the accused started preventing Dadarao and his
colleagues from sowing the field, the scuffle started between two
groups and in-fact there was a free fight between both the groups.
The evidence of P.W. 3 Dr. Prakash Patil demonstrates that
accused Prakash as well as accused Atmaram were also injured in
the said fight because of the assaults allegedly made on them by
the persons in the group of deceased Dadarao.
14. It is true that accused Nos. 1 and 2 made one assault
each on the head of deceased Dadarao, however from the
evidence on record no such inference can be drawn that it was the
13 Cr. Appeal 40.2003 - [J]
premeditated act of the accused or it was a preplanned attack.
Evidence of P.W. 2 Venkat shows that accused No. 1 Prakash first
made an assault on him, then on P.W. 1 Gunwant and thereafter
on deceased Dadarao. Had it been the common intention of
accused to cause the death of Dadarao, the assaults would have
been targeted first on deceased Dadarao. It has also to be
considered that had the accused be intending to cause the death of
Dadarao, they would have made repeated assaults. Making of the
assaults by both the accused on the head of deceased Dadarao,
also does not appear to be a predetermined act of the accused;
rather it appears to be a coincidence.
15. After having considered the entire evidence on
record, it cannot be said that the accused were intending to cause
death of Dadarao. As said earlier, the only intention of the
accused was to prevent deceased Dadarao and his team from
sowing the field. It was only in the heat of fight that the fatal
injury was caused to deceased Dadarao. In the circumstances, the
finding recorded by the trial Court that the accused were
intending to cause death of Dadarao cannot be sustained. The fact
that the injury inflicted on head did in-fact resulted in death of
Dadarao, would not justify the Court in reasoning backward from
the said result to an intention to cause death. We reiterate that
from the evidence on record, no such inference can be drawn that
14 Cr. Appeal 40.2003 - [J]
the accused were intending to cause death of Dadarao. However,
we have no hesitation in holding that the knowledge of the
consequences of their act in making assault on the head of
deceased Dadarao, has to be attributed on the part of the accused.
The contention raised on behalf of accused that they were not
aware about the consequences of the assault made by them on
deceased Dadarao, has to be rejected. In the foregoing
circumstances, though the conviction of the accused by the trial
Court for the offence punishable u/s 302 r/w 34 of I.P.C. can not
be sustained, the accused are liable to be held guilty for the
offence punishable u/s 304 part II of I.P.C.
16. Shri. Mandlik has relied upon the Judgment of the
Division Bench of this Court in the case of Narayan Aba Pawar
V/s The State of Maharashtra reported in 2014 (3) Bom.C.R.
(Cri.) 42 to buttress his alternate submission that the conviction
of the appellants - accused u/s 302 r/w 34 of I.P.C. cannot be
sustained and the accused, at the most, can be held guilty for the
offence u/s 304-II of I.P.C. In the cited Judgment also, it was the
case of the prosecution that the assaults made by the accused
therein with the stick were with knowledge and intention to cause
death of the victim in the said matter. The trial Court had
accordingly held guilty the accused therein for the offence u/s 302
r/w 34 of I.P.C. In the Appeal, the Division Bench of this Court,
15 Cr. Appeal 40.2003 - [J]
however, held that from the evidence on record it was difficult to
record any conclusion as to which of the accused had actually
delivered the fatal blow and further that the intention of the
accused was not appearing to commit murder of the deceased
therein and it was only in the heat of quarrel or fight that one of
the accused had hit fatal blow of stick. In the circumstances, the
Division Bench set aside conviction of the accused for the offence
punishable u/s 302 r/w 34 of I.P.C. and held the accused guilty for
the offence of culpable homicide not amounting to murder
punishable u/s 304-II of I.P.C.
17. We have carefully perused the cited Judgment. The
facts involved in the present Appeal are akin to the facts which
were involved in the said Judgment. In the instant matter also,
from the evidence on record, it is difficult to record any definite
conclusion as to which of the accused had given the fatal blow and
that is the reason both the accused have been convicted with the
aid of section 34 of I.P.C. Alike in the cited Judgment, in the
instant matter also, there was a sudden fight and in the heat of
quarrel, one of the accused had dealt the fatal blow of the stick.
As noted earlier, the injuries also were caused to the accused in
the quarrel so occurred between the aggrieved persons and the
accused. In the circumstances, according to us, the accused could
not have been convicted for the offence punishable u/s 302 r/w 34
16 Cr. Appeal 40.2003 - [J]
of I.P.C. In view of the conclusion recorded by us that intention of
the accused was not to commit murder of Dadarao, the accused
are liable to be convicted for the offence of culpable homicide not
amounting to murder punishable u/s 304-II r/w 34 of I.P.C.
18. In so far as the conviction of the accused u/s 324 r/w
34 of I.P.C. is concerned, it does not appear to us that any case is
made out by the accused so as to cause interference in the order so
passed. Ample evidence has come on record showing that the
accused caused hurt to P.W. 1 Gunwant and P.W. 2 Venkat by
making assaults on both of them with stick. As such, we maintain
the conviction of the accused for the said offence.
19. The next question which now falls for our
consideration is the punishment to be awarded to the accused.
Shri. Mandlik, the learned counsel for the accused has relied upon
the same Judgment of the Division Bench of this Court referred to
herein above in the case of Narayan Aba Pawar to urge that the
accused are liable to be sentenced with the imprisonment already
undergone by appropriately increasing the amount of fine. The
learned counsel submitted that the alleged incident had occurred
in the year 1991 i.e. prior to about 27 years and as such, it may
not be proper now to impose any punishment of imprisonment
more than the period already undergone by the accused. The
17 Cr. Appeal 40.2003 - [J]
learned counsel submitted that both the accused have
approximately undergone the imprisonment for the period of 2 ½
months. The learned counsel submitted that the accused be
released on the sentence already undergone by appropriately
increasing the fine amount.
20. We find substance in the submission so made by
Shri. Mandlik. Having regard to the fact that the alleged incident
had occurred in the year 1991 i.e. prior to about 27 years, we see
no propriety now in imposing upon the accused any higher
sentence of imprisonment than already undergone by the accused.
The record shows that after the Judgment was pronounced by the
Sessions Court, the accused were taken in custody on 06/01/2003
and were released on bail by this Court on 17/02/2003. The
record further shows that accused No. 1 was initially arrested on
29/06/1991, whereas accused No. 2 was arrested on 27/06/1991
and both the accused were released on bail by the order passed by
J.M.F.C., Mukhed on 18/07/1991. From the record it is thus
evident appears that both the accused have undergone the
imprisonment of the period of more than 2 months. We are of the
opinion that the prayer so made on behalf of the accused to
release them on the sentence of imprisonment already undergone
deserves to be favourably considered. We may, of-course strike
the balance by proportionately increasing the amount of fine.
18 Cr. Appeal 40.2003 - [J]
21. In so far as the offence punishable u/s 324 r/w 34 of
I.P.C. is concerned, there may not be any impediment to sentence
the accused with the punishment of fine only.
22. For the reasons stated above, the following order is
passed.
ORDER
[i] The conviction of appellant No. 1 Prakash s/o Maroti
Gaikwad and appellant No. 2 Atmaram s/o Maroti
Gaikwad u/s 302 r/w 34 of I.P.C. is quashed and set
aside and in stead the appellants are convicted for
the offence punishable u/s 304-II r/w 34 of I.P.C.
and are sentenced to the period of imprisonment
already undergone by each of them and each of the
accused is sentenced to pay a fine of Rs. 25, 000/-
[Rupees Twenty Five Thousand], in default of which,
each of the accused to undergo further R.I. for 1 ½
years.
[ii] Conviction of the appellants for the offence
punishable u/s 324 r/w 34 of I.P.C. is maintained,
but the sentence awarded to them is set aside and in
stead each of the accused is sentenced to
19 Cr. Appeal 40.2003 - [J]
pay fine of Rs. 10,000/- [Rupees Ten Thousand] in
default of which, each of the accused to undergo
R.I. for six months.
[iii] Fine amount if paid by the appellants, Rs. 50,000/-
[Rupees Fifty Thousand] out of the same be paid to
the legal heirs of deceased Dadarao and Rs.
10,000/- [Rupees Ten Thousand] each to P.W. 1
Gunwant s/o Ganpati Gaikwad and P.W. 2 Venkat
s/o Ganpati Gaikwad.
[iv] The Criminal Appeal thus stands partly allowed.
[P.R.BORA] [SUNIL P. DESHMUKH]
JUDGE JUDGE
KNP/Cr. Appeal 40.2003 - [J]
