Sandip S/O. Laxman Madavi And ... vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 12039 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.


                         CRIMINAL APPEAL NO. 315/2018
                                    AND
                         CRIMINAL APPEAL NO. 262/2018


          Laxman S/o Bhima Madavi,
          Aged about 49 years, Occ. Agriculture,
          R/o. Wansadi, Tah. Korpana,
          Dist. Chandrapur
          (In Nagpur Jail)
                                                              .... APPELLANT

                                  // VERSUS //

          State of Maharashtra,
          Through the Police Station Officer,
          Police Station Korpana,
          District Chandrapur
                                                           .... RESPONDENT


                           CRIMINAL APPEAL NO. 262/2018

 1]       Sandip S/o Laxman Madavi,
          Aged about 23 years, Occ. Labour,

 2]       Pradip S/o Laxman Madavi,
          Aged about 23 years, Occ. Labour

 3]       Sau. Shobha Laxman Madavi,
          Aged about 44 years, Occ. Agriculturist,

          All R/o. Wansadi, Tah. Korpana,
          Dist. Chandrapur
                                                          .... APPELLANT(S)


                                  // VERSUS //

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          The State of Maharashtra,
          Through the Police Station Officer,
          Police Station Korpana,
          District Chandrapur
                                                            .... RESPONDENT

  *******************************************************************
         Shri M.N. Ali, Advocate for the appellants in both appeals
    Shri S.M. Ghodeswar, APP for the respondent/State in both appeals
  *******************************************************************

                    CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

AUGUST 30, 2021

JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Through these appeals, the appellants have challenged the

judgment and order dated 05/04/2018 passed by the learned Additional

Sessions Judge - 3, Chandrapur in Sessions Case No. 06/2011 convicting

and sentencing the appellants in the manner as stated herein under :-

"(a) Under Section 302 of the Indian Penal Code, the accused

no. 1 to undergo imprisonment for life and to pay fine of Rs.

5000/- and in default of payment of fine to undergo simple

imprisonment of six months.

(b) Under Section 143 of the Indian Penal Code, the accused

nos. 1 to 4 to undergo rigorous imprisonment of six months

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and to pay fine of Rs. 1000/- and in default of payment of

fine to undergo simple imprisonment of one month.

(c) Under Section 147 of the Indian Penal Code, the accused

nos. 1 to 4 to undergo imprisonment of two years and to pay

fine of Rs. 2000/- and in default of payment of fine to

undergo simple imprisonment of two months.

(d) Under Section 324 of the Indian Penal Code, the accused

nos. 1 to 4 to undergo rigorous imprisonment of three years

and to pay fine of Rs. 3000/- and in default of payment of

fine to undergo simple imprisonment of three months."

2] The prosecution case, in short, is as under :-

Suryabhan Jagannath Urkude (PW5) lodged report

(Exhibit 68) on 08/09/2010 that while he was in his house, the accused

no. 2 came to his house and started abusing his mother Gangubai. At

that time, his elder brother Viju Urkude tried to convince him, but the

accused no. 2 did not listen. Brother of Sandip i.e. Pradip (accused no. 3)

and his father Laxman (accused no. 1) and their family members also

raised quarrel with the father of the complainant and brother Raju. It is

alleged that they threw chili powder on the person of his father and

brother and assaulted them with sticks and lathis. His father sustained

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injuries on his neck and head. The complainant brought them to the

doctor who referred them to Chandrapur. The complainant therefore

lodged report at 23.50 hours which was numbered as F.I.R.

No. 49/2010 which was initially registered under Section 324 of the

Indian Penal Code.

3] The Investigating Officer Rambhau Mallelwar (PW9)

started the investigation. The Investigating Officer went to the spot,

conducted spot panchanama, seized two Ubharis (wooden battons) from

the spot as per seizure panchanama (Exhibit 65) and also seized the

clothes of injured as per seizure memo (Exhibit 91). He recorded the

statements of the witnesses and arrested the accused as per arrest forms

(Exhibit Nos. 92 to 94). The injured Jagannath succumbed to injuries

and therefore the Investigating Officer added Sections 302 and 307 of

the Indian Penal Code. After completion of the investigation, the

Investigating Officer filed charge-sheet with learned Judicial Magistrate

First Class. Since the offences punishable under Sections 302 and 307 of

the Indian Penal Code are exclusively triable by the Court of Sessions, the

learned Magistrate committed the case to the Sessions Court as per

Section 209 of the Code of Criminal Procedure.

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 4]               The learned Sessions Judge framed charges against the

accused which were explained to the accused in vernacular to which all

the accused pleaded not guilty. The defence of the accused is of total

denial and false implication. During the trial, the prosecution examined,

in all, 11 witnesses out of which Chandrakala Vijay Urkude (PW1),

Kailash Kawadu Sontakke (PW2), Kawadu Vitthalrao Pimpalkar (PW3),

Raju Jagannath Urkude (PW4) / injured witness & Suryabhan Jagannath

Urkude (PW5) were examined as eye-witnesses. The learned trial Judge

believed the evidence of PW1, PW2, PW4 & PW5 and relying on the

other circumstantial evidence, convicted the appellants in the manner as

stated in para no. 1 above.

5] We have heard learned advocate for the appellants and

learned Additional Public Prosecutor for the respondent/State.

6] Learned advocate for the appellants submitted that the

conviction of the appellants is based on surmises and conjectures. He

invited our attention to the evidence of Chandrakala (PW1), Kailash

(PW2), Raju (PW4) & Suryabhan (PW5) and submitted that their

evidence do not inspire confidence. He submitted that there are material

omissions and contradictions in the testimonies of the eye-witnesses. He

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submitted that in any case the assault on the deceased by the accused

no. 1 - Laxman was without pre-meditation and the accused no. 1 had

not taken undue advantage and therefore at the most the accused no. 1

can be convicted for the offence punishable under Section 304-I of the

Indian Penal Code. He submitted that insofar as the accused nos. 2 to 4

are concerned, the prosecution has failed to prove the ingredients of the

offences under Sections 143, 147 and 324 of the Indian Penal Code and

therefore their conviction cannot be sustained.

7] Learned APP invited our attention to the testimonies of the

eye-witnesses i.e. Chandrakala (PW1), Kailash (PW2), Raju (PW4) &

Suryabhan (PW5) and submitted that the testimonies of all the eye-

witnesses inspire confidence. He submitted that the testimony of Raju

(PW4) being of injured eye-witness, stands on higher pedestal. He

submitted that the learned Sessions Judge has rightly convicted and

sentenced the accused no. 1 for the offence punishable under Section

302 of the Indian Penal Code. He submitted that the material on record

shows sufficient evidence to convict the accused nos. 2 to 4 for the

offences punishable under Sections 143, 147 & 324 of the Indian Penal

Code. He therefore submitted that both these appeals deserve to be

dismissed.

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 8]               We have perused the entire material on record and in our

opinion, Criminal Appeal No. 315/2018 deserves to be partly allowed

and Criminal Appeal No. 262/2018 deserves to be allowed.

9] Before entering into the arena of appreciating the evidence,

we must note that there is sufficient evidence on record to prove that the

death of Jagannath was homicidal in nature. The evidence in the form of

post-mortem report and evidence of Autopsy Surgeon Dr. Rakeshkumar

Anandkumar Sangat - the Autopsy Surgeon who stated that all the

injuries were ante-mortem and the deceased died because of the head

injury. He stated that in Column No. 19, he noted brain contusion over

left parietal region and sub-arachnoid haemorriage present over left

parietal region of size 3 x 2 CM. He also noted absence of piece of bone

of near about 5 x 5 CM from left parietal temporal loba which was sign of

creniotomy. The said evidence proves that the death of Jagannath was

homicidal in nature.

10] We have gone through the testimonies of the two eye-

witnesses i.e. Chandrakala (PW1) and Kailash (PW2) and we find that

insofar as the involvement of the accused no. 1 in the incident is

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concerned, in our view, the same is proved by the ocular account

furnished by Chandrakala (PW1) and Kailash (PW2). Both eye-

witnesses, in one breath, stated that they saw the accused no. 1 - Laxman

assaulting Jagannath with Ubhari on his head. It is stated that the assault

happened when the deceased was sitting in his house after taking the

meal around 8 o'clock. It is also stated that there used to be quarrel

between the accused persons and family of the complainant on account

of tying the bullocks on the road.

11] We have scrutinized the evidence of Chandrakala (PW1),

and Kailash (PW2) with great circumspection and we find that the

testimonies of both eye-witnesses are implicitly truthful. The injuries

sustained by the deceased are supported by the evidence of Autopsy

Surgeon Dr. Rakeshkumar Anandkumar Sangat who conducted the post-

mortem on the corpse of the deceased. Dr. Rakeshkumar found the

following injuries on the person of the deceased :-

"1. As per Column No. 17. Bruises over left cubital fossa present of size 3 x 2 cm.

2. Abrasion on left forearm volar aspect of size 4 x 5 cm., old scab present.

3. Surgical scar on left parietal temporal lobe of 'U' shape of size 10 CM.

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4. As per Column No. 18. Palpable crepitus over left side of temporal parietal region near surgical site."

12] He stated that all the injuries were ante-mortem and the

deceased died because of the head injury.

13] In addition to the credible evidence referred to above, we

have bonus evidence in the form of recovery of knife and blood stained

clothes of Laxman. The prosecution has proved the memorandum of

recovery (Exhibit Nos. 78 and 79). The prosecution has also proved

human blood on the clothes of the accused no. 1 which is an

incriminating circumstance for which the accused no. 1 has not provided

any explanation. In addition to the above circumstances, the defence has

not disputed quarrel between the accused and the relatives of the

complainant on the day of Pola. The presence of the accused on the spot

was also admitted.

14] In our view, the evidence referred above conclusively

establishes the involvement of the accused no. 1 - Laxman in the crime.

In our view, the learned trial Judge acted correctly in concluding that the

prosecution has squarely established the involvement of the accused

no. 1 - Laxman in the crime. This leaves us with another question

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namely that of nature of offence committed by the accused no. 1. We

have reflected over it and in our view considering the overall

circumstances, the learned trial Judge erred in convicting the accused

no. 1 for the offence punishable under Section 302 of the Indian Penal

Code and instead he should have convicted the accused no. 1 for the

offence punishable under Section 304 - I of the Indian Penal Code.

According to the prosecution, the assault on the deceased was not due to

any pre-existing vendetta on the part of the accused no. 1 against the

deceased. The evidence on record shows that there was quarrel on the

ground of tying of bullocks on the road and in view of rage, the accused

no. 1 went to the house of deceased and assaulted him. The deceased

suffered one bleeding head injury by weapon stick.

15] The Hon'ble Supreme Court in the case of Ravindra Shalik

Naik vs. State of Maharashtra reported in 2009 All MR (Cri.) 1798

(S.C.) has held that Exception 4 to Section 300 of the Indian Penal Code

can be invoked if death is caused (a) without premeditation, (b) in a

sudden fight; (c) without the offender's having taken undue advantage or

acting in a cruel or unusual manner; and (d) the fight must have been

with the person killed. It is observed by the Hon'ble Supreme Court that

the heat of passion requires that there must be no time for the passions to

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cool down. In the present case, we are satisfied that the manner of assault

stated by the eye-witnesses shows that the assault on the deceased by the

accused no. 1 was without premeditation and was result of a sudden

fight. The testimonies of the eye-witnesses do not show that the accused

no. 1 had taken undue advantage and acted in cruel or unusual manner.

16] In our view, considering the aforesaid facts, it would be

appropriate to hold that the offence punishable under Section 304 - I of

the Indian Penal Code is made out against the accused no. 1 - Laxman.

This leaves us with only one question namely the quantum of sentence to

be awarded to the accused no. 1 under Section 304 - I of the Indian

Penal Code. Considering the nature of assault by the accused no. 1, we

are of the opinion that custodial sentence of 10 years would meet the

ends of justice.

17] We now take up Criminal Appeal No. 262/2018 filed by the

accused nos. 2 to 4. Learned Sessions Judge, by the impugned judgment,

has convicted the accused nos. 2 to 4 for the offences punishable under

Sections 143, 147 and 324 of the Indian Penal Code. We have carefully

scrutinized the evidence of Chandrakala (PW1), Kailash (PW2), Raju

(PW4) & Suryabhan (PW5). It appears from the testimonies of the eye-

witnesses that though it is stated that the accused no. 2 - Sandip ANSARI

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assaulted Raju by Ubhari, the prosecution has failed to prove the injury

certificate of Raju. Though it is alleged that accused no. 3 - Pradip

assaulted Raju by kicks and blows, the prosecution has failed to prove the

injury certificate of Raju. We are therefore of the view that the

prosecution has failed to prove the essential ingredients of the offence

punishable under Section 324 of the Indian Penal Code.

18] The accused are charged with the offences punishable under

Sections 143, 147 and 323 of the Indian Penal Code. The prosecution

has failed to adduce evidence to prove that the common object of the

accused was to cause injuries to the family of the complainant and also

failed to adduce evidence that in furtherance of the said common object

the accused persons assaulted Jagannath and Raju, firstly by throwing

chilli powder in their eyes and thereafter assaulting their heads by means

of sticks. There are material omissions in the testimonies of PW1, PW2,

PW4 & PW5 regarding throwing of chilli powder by Shobha - accused

no. 4. Though Chandrakala (PW1) stated in her testimony that Pradip

had assaulted Jagannath and Raju by fists and blows, the said statement is

omission on the part of Chandrakala (PW1).

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 19]             It is well settled that the word "object" means the purpose or

design and, in order to make it "common", it must be shared by all. A

common object may be formed by express agreement after mutual

consultation, but that is by no means necessary. The expression "in

prosecution of common object" has to be strictly construed as equivalent

to "in order to attain the common object" which must be immediately

connected with the common object by virtue of the nature of the object.

For determination of the common object of the unlawful assembly, the

conduct of each of the members of the unlawful assembly, before and at

the time of attack and thereafter, the motive for the crime, are some of

the relevant considerations.

20] After considering the testimonies of Chandrakala (PW1),

Kailash (PW2), Raju (PW4) & Suryabhan (PW5), we do not find that

each of the person of the alleged unlawful assembly had common object

to assault the family members of the complainant. We are therefore

satisfied that the prosecution has failed to prove the charge under

Sections 143, 147 & 323 of the Indian Penal Code against the accused

nos. 2 to 4. The accused nos. 2 to 4 therefore need to be acquitted of the

charge under Sections 143, 147 & 323 of the Indian Penal Code.

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 21]              Hence, the following order:-



                  (i)          Criminal Appeal No. 315/2018 is partly allowed.



                  (ii)         Judgment and order dated 05/04/2018 passed by the

learned Additional Sessions Judge - 3, Chandrapur

in Sessions Case No. 06/2011 thereby convicting the

appellant - Laxman S/o Bhima Madavi for the

offences punishable under Sections 302, 143, 147,

324 read with Section 149 of the Indian Penal Code

is hereby quashed and set aside.

(iii) Instead, the appellant - Laxman S/o Bhima Madavi is

convicted for the offence punishable under Section

304-I of the Indian Penal Code and is directed to

suffer rigorous imprisonment for 10 years.

(iv) The appellant - Laxman S/o Bhima Madavi who is in

jail shall be released after completion of his jail

sentence.

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                  (v)          The appellant - Laxman S/o Bhima Madavi be given

benefit of set off under Section 428 of the Code of

Criminal Procedure.

(vi) Criminal Appeal No. 262/2018 is allowed.

(vii) The conviction of the appellants - Sandip S/o

Laxman Madavi, Pradip S/o Laxman Madavi & Sau.

Shobha Laxman Madavi for the offences punishable

under Sections 143, 147 & 323 of the Indian Penal

Code is set aside.

(viii) The appellants - Sandip S/o Laxman Madavi, Pradip

S/o Laxman Madavi & Sau. Shobha Laxman Madavi

are acquitted of the charge under Sections 143, 147 &

323 of the Indian Penal Code.

                   (JUDGE)                                      (JUDGE)




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