Bombay High Court
State Of Maha vs Bhaskar Tukaram Kamble And Ors on 4 March, 2021
Bench: R.V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.215 OF 2003
The State of Maharashtra.
Through Police Station Officer,
Hingoli (Rural), District Hingoli.
...APPELLANT
-VERSUS-
1. Bhaskar Tukaram Kamble, (DEAD)
Age : 36 years, Occupation : Agriculture,
R/o Khaperkheda, Tq. And Dist.Hingoli.
2. Baburao Gyanoji Kamble,
Age : 36 years, Occupation : Service,
R/o As above.
3. Ramchandra Nagoji Kamble,
Age : 49 years, Occupation : Agriculture,
R/o As above.
4. Tukaram Masaji Kamble,
Age : 64 years,
Occupation and R/o As above.
5. Natha Gyanoji Kamble,
Age : 39 years,
Occupation and R/o As above.
6. Gyanoji Masaji Kamble, (DEAD)
Age : 66 years,
Occupation and R/o As above.
7. Shivaji Gyanoji Kamble,
Age : 34 years,
Occupation and R/o As above.
8. Vinod Ramchandra Kamble, (DEAD)
::: Uploaded on - 04/03/2021 ::: Downloaded on - 05/03/2021 00:26:05 :::
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Age : 23 years,
Occupation and R/o As above.
9. Shobhabai Tukaram Kamble,
Age : 58 years, Occupation : Household,
R/o As above.
10. Antakalabai w/o Gyanoji Kamble, (DEAD)
Age : 59 years, Occupation : Household,
R/o As above.
...RESPONDENTS
(Original Accused)
...
Shri R.D. Sanap, APP for the Appellant/ State.
Shri S.P. Salgar, Advocate (appointed) for the respondents/ accused.
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
Reserved on 24th February, 2021
Pronounced on 04th March, 2021
JUDGMENT (Per Ravindra V. Ghuge, J.):
1. By this appeal under Section 378(2)(b) of the Code of
Criminal Procedure, 1973 (CrPC), the State seeks to challenge the
judgment and order dated 13.11.2002 delivered by the learned Additional
Sessions Judge, Hingoli in Sessions Trial No.42/1999, vide which, all the
ten accused have been acquitted from the charge of having committed
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offences punishable under Sections 302, 307, 325, 326, 147, 148 and 149
of the Indian Penal Code and Section 135 of the Bombay Police Act, 1951
(hereinafter referred to as "the 1951 Act").
2. Out of the ten accused, accused No.1 (Bhaskar Tukaram
Kamble) and accused No.10 (Antakalabai w/o Gyanoji Kamble) have
passed away during the pendency of the case before the Trial Court. The
trial, therefore, abated as regards these two deceased accused. During the
pendency of this appeal, accused No.6/ Gyanoji has passed away on
27.11.2007 and accused No.8 Vinod has passed away on 25.05.2015. This
Appeal against acquittal, therefore, abates against accused No.6/ Gyanoji
and accused No.8/ Vinod.
3. The prosecution had put forth it's case before the Trial Court
as under :-
(a) The first informant -Deorao Amruta Gaikwad (PW-1) lodged a
complaint at Hingoli Rural Police Station at about 06:30 AM on
20.08.1998 and stated therein that on 19.08.1998, he was returning from
the field at about 06:00 to 06:30 PM. The accused Baburao Gyanoji
Kamble was sitting on the platform (otaa) in front of his house along with
Bhaskar Kamble, Shivaji Kamble, Tukaram Kamble, Antakalabai Kamble,
Shobhabai Kamble. The brother of PW-1, namely, Mohan (deceased
victim) approached Bhaskar, whose wife Bhartabai was the proprietor of
the fair price licence shop. The deceased Mohan had gone to Bhaskar for
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demanding the grains from the quota of the previous month. Noticing that
Mohan was demanding grains, Bhaskar called him closer and started
abusing him. Thereafter, Bhaskar gave a physical blow to Mohan, who fell
down on the ground. Baburao Kamble picked up a big stone and smashed
the face of Mohan. Shivaji then came with an axe and assaulted Mohan.
Natha Kamble assaulted Mohan with stick and stones. Vinod Kamble then
assaulted Mohan with stones. Ramchandra Kamble, Gyanoji Kamble,
Tukaram Kamble, Antakalabai Kamble and Shobhabai Kamble were
pelting stones on Mohan, who had fallen to the ground. The mother of the
deceased Gayabai started shouting and screaming. Baburao Kamble gave a
stone blow on the forehead of Gayabai. Shivaji Kamble also assaulted her
with an axe. Vinod Kamble, Ramchandra Kamble, Gyanoji Kamble,
Tukaram Kamble, Antakalabai Kamble and Shobhabai Kamble were
pelting stones. The sister-in-law of the informant, Shobhabai had tried to
cover the body of Mohan so as to protect him. Shivaji Kamble gave an axe
blow on the right side of her forehead. These accused picked up stones
and pelted them towards the deceased. Natha Kamble used a stick to beat
the mother of the deceased. PW-1 started shouting. Bhaskar Kamble gave
a stick blow and Baburao Kamble assaulted Shobhabai with a stone. Natha
Kamble assaulted her with a stick, which fractured her right hand. It was
around 08:00 PM when this incident took place. There were electric bulbs
on the public lamp poles. There were two bulbs on that pole and the pole
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was in front of the house of PW-1. Two electric bulbs affixed by the
informant were also lighted at his door and two bulbs were also lighted at
the door of Baburao Kamble.
(b) The work of constructing a portion of the house of Baburao
Kamble was undertaken and electric bulbs were lighted. PW-1 could see
the incident even during the night hours. The accused were pelting stones
on the body of Mohan by picking up such stones from the construction
material.
(c) At about 08:30 PM on the same date, PW-1 went to the Police
Patil. It was raining. There was mud on the way. The jurisdiction of
Devthana Police Station extended to the village. From Devthana, PW-1,
village Police Patil Shrirang R. Patil and Gyanba Patil went to Kanhergaon
after waiting for sometime for a vehicle at Phalegaon cross road. So, they
went to Kanhergaon on foot, which was about 4 kilometers away from the
residence of PW-1. They waited at Kanhergaon upto 04:00 AM on the next
day. After a train came to Kanhergaon, they traveled to Hingoli and lodged
a complaint at 06:30 AM.
(d) After a complete trial, the Trial Court came to a conclusion
that the accused persons were not guilty of the offences punishable under
the provisions of the Indian Penal Code referred to above. Their bail bonds
were cancelled and they were acquitted.
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4. We have noted the strenuous submissions of the learned
prosecutor and the learned advocate on behalf of respondent Nos.2 to 5, 7
and 9.
5. The submissions of the learned prosecutor can be summarized
as under :-
(a) On 19.08.1998, at about 08:00 PM, the deceased Mohan
approached accused No.1 Bhaskar, who was sitting on an Otta (platform
in the front yard) along with other accused chitchatting after dinner.
Mohan demanded grains from his previous month's quota from the fair
price shop operated by Bhaskar on behalf of his wife, who had a licence of
the said shop.
(b) Bhaskar began assaulting Mohan and threw him on the
ground. Accused No.2 Baburao lifted a big stone and dropped it on the
face of Mohan. Accused No.7 Shivaji began assaulting Mohan with a stick.
Accused No.5 Natha and accused No.8 Vinod started assaulting Mohan by
pelting stones on his body. Similarly, accused No.3 Ramchandra, accused
No.6 Gyanoji, accused No.4 Tukaram, accused No.10 Antakalabai w/o
Gyanoji and accused No.9 Shobhabai w/o Tukaram also started pelting
stones at Mohan.
(c) PW-8 Jayabai w/o Amruta (mother of deceased Mohan) and
PW-6 Shobhabai w/o Mohan tried to rescue Mohan. Baburao gave a stone
blow on the forehead of Jayabai and Shivaji gave an axe blow to her. As
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Shobhabai w/o Mohan threw herself on the body of Mohan to protect
him, she was given an axe blow by Shivaji. Bhaskar also gave a stick blow
on the head of PW-1 Deorao s/o Amruta (brother of deceased Mohan).
(d) There were four eyewitnesses viz. PW-1 Deorao, PW-6
Shobhabai, PW-8 Jayabai and PW-10 Sadashiv. Though three eyewitnesses
deposed in corroboration with each other, the Trial Court has discarded
their testimony purely on an unsustainable ground that PW-1 Deorao was
the real brother of Mohan, PW-6 was the wife of Mohan and PW-8 was the
mother of Mohan. The Trial Court concluded that they are interested
witnesses.
(e) The Trial Court acquitted all the accused by discarding the
testimony of the three eyewitnesses in totality, did not consider the
postmortem report and concluded that the evidence proving the assault
should be precise and even a minuscule discrepancy is fatal to the case of
the prosecution.
(f) The deceased Mohan had already lodged a complaint with the
revenue authorities against Bhaskar as he was manipulating the fair price
shop records and distribution of food grains. Bhaskar and his family
members were attempting to force Mohan to withdraw the complaint.
Mohan did not succumb to the pressure tactics of Bhaskar and continued
to expose the misdeeds of Bhaskar in operating the fair price shop by
proxy on behalf of his wife.
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(g) Reliance is placed upon the judgments delivered by the
Honourable Supreme Court in State of Rajasthan vs. Teja Ram, AIR 1999
SC 1776 and Namdeo vs. State of Maharashtra, 2007 Cri.L.J. 1819 (SC).
6. The synopsis of evidence is tendered by the learned advocate
for the respondents/ accused. His submissions can be summarized as
under :-
(a) The date of alleged incident is 19.08.1998, 08:00 PM and the
FIR was lodged with the Hingoli Rural Police Station about 40 kilometers
away, at 07:00 AM on 20.08.1998.
(b) The FIR could have been lodged at the Kanhergaon Police
Outpost, which is about 4 kilometers away.
(c) Though the Police Patil accompanied the informant PW-1, he
was not examined.
(d) Though the quarrel took place at Hingoli about 2 to 3 days
prior to the incident between Mohan and Bhaskar, Mohan has not lodged
any police complaint.
(e) There are several omissions and contradictions in the
testimony of eyewitnesses. PW-10 Sadashiv, an eyewitness, had turned
hostile.
(f) The use of axe was not proved and there was no evidence
about use of deadly weapons. The informant is silent about the use of axe.
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(g) Section 149 of the IPC was rightly held inapplicable because
family members and close friends (all accused) were sitting on the Otta
which belonged to Bhaskar and it was not a public place.
(h) PW-2 doctor, who conducted the postmortem, has stated that
the incise wound suffered by Mohan can be caused by a sharp weapon.
There is no evidence of the use of a sharp weapon.
(i) Though PW-6 Shobhabai claims to have been hit by an axe by
Shivaji, there is no disclosure of the use of an axe.
(j) PW-7 I.O., has stated that an FIR could have been lodged at
the Kanhergaon Police Outpost.
(k) The injuries suffered by Jayabai are not corroborated with the
testimony of Deorao and the injury certificate does not corroborate such
injuries.
(l) Except Bhaskar assaulting Mohan leading to his fall on the
ground and inflicting a skull smashing stone blow, other injuries to the
other alleged victims are not corroborated by evidence.
(m) Since the incident took place in darkness, it was impossible
for the witnesses to identify the assailants.
(n) The Trial Court has properly appreciated the evidence and has
rightly concluded that all the accused deserved an acquittal.
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7. The learned APP, after perusing the written notes and the
synopsis of evidence tendered by the learned advocate for the respondents
on 11.01.2021 in the Court, submits that the accused are admitting that
Bhaskar assaulted Mohan and the stone that he banged on the skull of
Mohan led to his death, only because Bhaskar is no more and the appeal
has abated to his extent. The accused are now finding it safe to put the
blame on Bhaskar since Bhaskar has met with an untimely death before
the trial was completed.
8. The learned APP further submits that the blood group of the
deceased Mohan was established as blood group B, the blood group of
Shobhabai was A and the blood group of Jayabai was B. The blood
detected on the articles Exhibit Nos.1 to 13 was established to be human
blood. These articles include stones, an axe, a wooden stick, different
types of clothes/ saree/ blouse/ choli, etc.. This medical evidence could
not have been ignored by the Trial Court.
9. The prosecution has examined the following witnesses:-
(a) PW-1 Deorao Amruta Gaikwad, Exhibit-32, informant, injured
eyewitness and brother of the deceased.
(b) PW-2 Dr.Ganesh Bangar, Exhibit-39, the Medical Officer who
performed the autopsy and submitted his postmortem report at Exhibit-
40.
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(c) PW-3 Sambar Ramji Pattebahadur, Exhibit-44, who is a panch
witness of the inquest panchanama.
(d) PW-4 Dhondiba Nathaji Gahule, Exhibit-47, panch witness for
seizure of clothes of the deceased, who turned hostile.
(e) PW-5 Ramrao Sonaji Issaye, Exhibit-48, panch witness for
seizure of clothes of the deceased, who turned hostile.
(f) PW-6 Shobhabai Mohan Gaikwad, Exhibit 49, who is the
injured eyewitness, wife of the deceased.
(g) PW-7 Digambar Kishanrao Tihare, Exhibit 50, Assistant Sub
Inspector, who recorded the complaint, registered the crime and handed
over the investigation to the I.O..
(h) PW-8 Jayabai Amruta Gaikwad, Exhibit 51, injured
eyewitness and mother of the deceased Mohan.
(i) PW-9 Narayan Ganpatrao Gaikwad, Exhibit 52, who is the
panch witness for the recovery of the clothes of the injured eyewitnesses
Jayabai and Shobhabai.
(j) PW-10 Sadashiv Nagoji Mukade, Exhibit 54, an eyewitness,
who turned hostile.
(k) PW-11 I.O. Vilas Dinkar Nikam, Exhibit 55, Police Sub
Inspector, who is the Investigating Officer.
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10. In the statements under Section 313 of the Cr.P.C., all the
accused have denied the incident, have exercised their right to silence and
have neither examined themselves nor any witness.
WHETHER, THE DEATH OF MOHAN IS HOMICIDAL?
11. We find that it is nobody's case that Mohan has met with a
natural death or has committed suicide. The postmortem report is self
explanatory. While considering the surface wounds and injuries, PW-2
Dr.Bangar has noted the injuries at Sr.Nos.17 and 18 as under :-
17. Surface wounds and injuries:- 1. Left side of face is compressed. There is
Their nature, position, elo # frontal parietal & temporal bones on
dimensions (measured) and left side. Elo subcutaneous haemorrhages.
directions to be accurately
stated. 2. Incised wound 10x4 cm in leg loin.
Their probable age and causes 3. Incised wound. 6 cm below right scapula
to be noted. 6x2 cm.
If burries be present what is 4. Contusion 4x4 cm in right subcostal area
the condition of the in MCL.
subcutaneous tissues?
5. Contusion 5x5 cm in middle 3 rd of right
(N.B.:- When injuries are calvicle.
numerous and cannot be
mentioned within the space 6. Contusion 5x5 cm in left subcostal area.
available they should be
mentioned on a separate 7. Incised wound 5x2 cm in middle 3rd of
paper which should be right leg.
signed).
8. Incised wound 3x1 cm in occipital area.
9. Incised wound 3x1 cm right mantoid
area.
10. Contused lacerated wound right palm
4x1/2 cm.
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18. Other injuries discovered by All injuries are ante-mortem as
external examination or subcutaneous haemorrhages and bleeding
palpation as fractures etc. present on cut section.
(a) Can you say definitely that
the injuries shown against
serial Nos.17 and 18 are ante-
mortem injuries?
12. The injuries at clause 19, post internal examination, are
recorded as under :-
19. Injuries under the scalp- # frontal, parietal & temporal bone. On leg
their nature. side.
ii) Skull :- Vault and base- Elo frontal, parital bone and temporal bone.
describe fractures, their 15x0.5 cm
sites, dimensions, directions, bones were compressed, fracture fragments
etc. present in brain tissue.
iii) Brain:- The appearance of its Crush injury brain present due to fracture
coverings, size, weight and frontal parietal and temporal bones.
general condition of the
organ itself and any Intra cenetrial haemorrhage present.
abnormality found in its
examination to be carefully
noted (weight M. 3 gram F.
2.75 grams).
13. PW-2 has expressed an opinion as regards the probable cause
of death being "Crush injury of brain due to fracture of frontal, parietal
and temporal bones". It is obvious that Mohan was assaulted by more than
one person and had suffered several injuries as noted above. The
postmortem report reflects this fact and the cause of death is mentioned
therein. No further debate is necessary and it is doubtable that Mohan has
suffered a homicidal death.
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WHETHER THE EVIDENCE OF EYEWITNESSES CAN BE DISCARDED
MERELY ON THE GROUND THAT THEY ARE RELATED TO THE VICTIM
OR ARE INTERESTED WITNESSES?
14. It is well settled that every court has to be extra cautious and
careful while appreciating the testimony of eyewitnesses and more so, if
such eyewitnesses are related to the victim. An extra caution has to be
adopted by the courts while analyzing the testimony of witnesses related
to the victim. The court also has to assess whether, such relatives are
manufactured witnesses.
15. In the matter of Deepak Kumar vs. Ravi Virmani and another,
(2002) 2 SCC 737, the Honourable Supreme Court has held that if
independent witnesses are available, the prosecution should examine such
witnesses to add strength to the case of the prosecution. The Honourable
Apex Court has not laid down the law that merely because a victim
eyewitness is related to the deceased, that the testimony of such witness
should be discarded.
16. In State of Rajasthan vs. Teja Ram, AIR 1999 SC 1776 , the
Honourable Apex Court dealt with the aspect of over insistence to have
witnesses having no relations to the victims. It was concluded that such
over insistence often results in criminal justice going awry. It would be
apposite to reproduce the conclusions in Teja Ram (supra) in paragraph
20 as under :-
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"20. Another reason which the High Court advanced to repel
the testimony of such a good number of probable witnesses
is that they are all close relatives of the deceased and that
independent witnesses were not examined by the
prosecution. The over-insistence on witnesses having no
relation with the victims often results in criminal justice
going awry. When any incident happens in a dwelling
house the most natural witnesses would be the inmates of
that house. It is unpragmatic to ignore such natural
witnesses and insist on outsiders who would not have even
seen any thing. If the Court has discerned from the
evidence or even from the investigation records that some
other independent person has witnessed any event
connecting the incident in question then there is
justification for making adverse comments against non-
examination of such person as prosecution witness.
Otherwise, merely on surmises the Court should not
castigate a prosecution for not examining other persons of
the locality as prosecution witnesses. Prosecution can be
expected to examine only those who have witnessed the
events and not those who have not seen it though the
neighbourhood may be replete with other residents also."
17. In Namdeo vs. State of Maharashtra, (2007) Cri.L.J. 1819 , the
Honourable Apex Court has concluded that the testimony of a solitary
witness can also be a basis for conviction. So also, it was held that merely
because a witness is related to the deceased or the victim of a crime, such
witness cannot be characterized as an interested witness. The term
"interested" postulates that a witness must have direct or indirect interest
in getting an accused convicted due to animosity or for some other oblique
motive. Paragraphs 21 to 31 read as under :-
"21. In Vadivelu Thevar v. State of Madras, 1957 SCR 981 : AIR
1957 SC 614, referring to Mahomed Sugal, this Court
stated;
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On a consideration of the relevant authorities and
the provisions of the Indian Evidence Act, the following
propositions may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the
testimony of a single witness though uncorroborated. One
credible witness outweighs the testimony of a number of
other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute,
courts should not insist on corroboration except in cases
where the nature of the testimony of the single witness
itself requires as a rule of prudence, that corroboration
should be insisted upon, for example in the case of a child
witness, or of a witness whose evidence is that of an
accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single
witness is or is not necessary, must depend upon facts and
circumstances of each case and no general rule can be laid
down in a matter like this and much depends upon the
judicial discretion of the Judge before whom the case
comes.
22. Quoting Section 134 of the Evidence Act, their Lordships
stated that "we have no hesitation in holding that the
contention that in a murder case, the Court should insist
upon plurality of witnesses, is much too broadly stated."
23. The Court proceeded to state;
It is not seldom that a crime had been committed in the
presence of only one witness, leaving aside those cases
which are not of uncommon occurrence, where
determination of guilt depends entirely on circumstantial
evidence. If the Legislature were to insist upon plurality of
witnesses, cases where the testimony of a single witness
only could be available in proof of the crime, would go
unpunished. It is here that the discretion of the presiding
judge comes into play. The matter thus must depend upon
the circumstances of each case and the quality of the
evidence of the single witness whose testimony has to be
either accepted or rejected. If such a testimony is found by
the court to be entirely reliable, there is no legal
impediment to the conviction of the accused person on
such proof. Even as the guilt of an accused person may be
proved by the testimony of a single witness, the innocence
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of an accused person may be established on the testimony
of a single witness, even though a considerable number of
witnesses may be forthcoming to testify to the truth of the
case for the prosecution.
24. The Court also stated;
There is another danger in insisting on plurality of
witnesses. Irrespective of the quality of the oral evidence of
a single witness, if courts were to insist on plurality of
witnesses in proof of any fact, they will be indirectly
encouraging subornation of witnesses. Situations may arise
and do arise where only a single person is available to give
evidence in support of a disputed fact. The court naturally
has to weigh carefully such a testimony and if it is satisfied
that the evidence is reliable and free from all taints which
tend to render oral testimony open to suspicion, it becomes
its duty to act upon such testimony. The law reports
contain many precedents where the court had to depend
and act upon the testimony of a single witness in support
of the prosecution. There are exceptions to this rule, for
example, in cases of sexual offences or of the testimony of
an approver; both these are cases in which the oral
testimony is, by its very nature, suspect, being that of a
participator in crime. But, where there are no such
exceptional reasons operating, it becomes the duty of the
court to convict, if it is satisfied that the testimony of a
single witness is entirely reliable.
25. In the leading case of Shivaji Sahebrao Bobade v. State of
Maharashtra, (1973) 2 SCC 793, this Court held that even
where a case hangs on the evidence of a single eye witness
it may be enough to sustain the conviction given sterling
testimony of a competent, honest man although as a rule of
prudence courts call for corroboration. "It is a platitude to
say that witnesses have to be weighed and not counted
since quality matters more than quantity in human affairs."
26. In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT
1993 (2) SC 290, the Court observed; "Indeed, conviction
can be based on the testimony of a single eye witness and
there is no rule of law or evidence which says to the
contrary provided the sole witness passes the test of
reliability. So long as the single eye-witness is a wholly
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reliable witness the courts have no difficulty in basing
conviction on his testimony alone. However, where the
single eye witness is not found to be a wholly reliable
witness, in the sense that there are some circumstances
which may show that he could have an interest in the
prosecution, then the courts generally insist upon some
independent corroboration of his testimony, in material
particulars, before recording conviction. It is only when the
courts find that the single eye witness is a wholly
unreliable witness that his testimony is discarded in toto
and no amount of corroboration can cure that defect."
27. In Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : JT
1995 (8) SC 425, referring to several cases, this Court
stated; "On a conspectus of these decisions, it clearly comes
out that there has been no departure from the principles
laid down in Vadivelu Thevar case and, therefore,
conviction can be recorded on the basis of the statement of
a single eye witness provided his credibility is not shaken
by any adverse circumstance appearing on the record
against him and the court, at the same time, is convinced
that he is a truthful witness. The court will not then insist
on corroboration by any other eye witness particularly as
the incident might have occurred at a time or place when
there was no possibility of any other eye witness being
present. Indeed, the courts insist on the quality, and, not on
the quantity of evidence."
28. In Chittar Lal v. State of Rajasthan, (2003) 6 SCC 397 : JT
2003 (7) SC 270, this Court had an occasion to consider a
similar question. In that case, the sole testimony of a young
boy of 15 years was relied upon for recording an order of
conviction. Following Mohamed Sugal and reiterating the
law laid down therein, this Court stated:
"The legislative recognition of the fact that no
particular number of witnesses can be insisted upon is
amply reflected in Section 134 of the Indian Evidence Act,
1872 (in short 'Evidence Act'). Administration of justice can
be affected and hampered if number of witnesses were to
be insisted upon. It is not seldom that a crime has been
committed in the presence of one witness, leaving aside
those cases which are not of unknown occurrence where
determination of guilt depends entirely on circumstantial
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evidence. If plurality of witnesses would have been the
legislative intent cases where the testimony of a single
witness only could be available, in number of crimes
offender would have gone unpunished. It is the quality of
evidence of the single witness whose testimony has to be
tested on the touchstone of credibility and reliability. If the
testimony is found to be reliable, there is no legal
impediment to convict the accused on such proof. It is the
quality and not the quantity of evidence which is necessary
for proving or disproving a fact."
29. Recently, in Bhimappa Chandappa v. State of Karnataka,
(2006) 11 SCC 323, this Court held that testimony of a
solitary witness can be made the basis of conviction. The
credibility of the witness requires to be tested with
reference to the quality of his evidence which must be free
from blemish or suspicion and must impress the Court as
natural, wholly truthful and so convincing that the Court
has no hesitation in recording a conviction solely on his
uncorroborated testimony.
30. From the aforesaid discussion, it is clear that Indian legal
system does not insist on plurality of witnesses. Neither the
Legislature (Section 134, Evidence Act, 1872) nor the
judiciary mandates that there must be particular number of
witnesses to record an order of conviction against the
accused. Our legal system has always laid emphasis on
value, weight and quality of evidence rather than on
quantity, multiplicity or plurality of witnesses. It is,
therefore, open to a competent court to fully and
completely rely on a solitary witness and record conviction.
Conversely, it may acquit the accused in spite of testimony
of several witnesses if it is not satisfied about the quality of
evidence. The bald contention that no conviction can be
recorded in case of a solitary eye witness, therefore, has no
force and must be negatived.
31. It was then contended that the only eye witness PW6-
Sopan was none other than the son of the deceased. He
was, therefore, 'highly interested' witness and his
deposition should, therefore, be discarded as it has not
been corroborated in material particulars by other
witnesses. We are unable to uphold the contention. In our
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judgment, a witness who is a relative of the deceased or
victim of a crime cannot be characterised as 'interested'.
The term 'interested' postulates that the witness has some
direct or indirect 'interest' in having the accused somehow
or other convicted due to animus or for some other oblique
motive."
18. In Dalip Singh and others vs. The State of Punjab, AIR 1953
SC 364, the Honourable Apex Court has dealt with the issue of two
eyewitnesses being ignored merely because they were closely related to
the deceased. It was observed by Vivian Bose, J. (as His Lordship then
was), speaking for the Court, in paragraph 26 as under :-
"26. A witness is normally to be considered independent unless
he or she springs from sources which are likely to be
tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close relative would be
the last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and
there is personal cause for enmity, that here is a tendency
to drag in an innocent person against whom a witness has
a grudge along with the guilty, but foundation must be laid
for such a criticism and the mere fact of relationship far
from being a foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping
generalisation. Each case must be judged on its own facts.
Our observations are only made to combat what is so often
put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts."
19. In Darya Singh and others vs. State of Punjab, AIR 1965 SC
328, the Honourable Apex Court concluded that the evidence of a witness,
who is a near relative of the victim, should be closely scrutinized, but no
*21* crapeal215o03
corroboration is necessary for acceptance of his evidence. Speaking for the
Court, Gajendragadkar, J. (as His Lordship then was) concluded in
paragraph 6 as under :-
"6. There can be no doubt that in a murder case when
evidence is given by near relatives of the victim and the
murder is alleged to have been committed by the enemy of
the family, criminal Courts must examine the evidence of
the interested witnesses, like the relatives of the victim,
very carefully. But a person may be interested in the victim,
being his relation or otherwise, and may not necessarily be
hostile to the accused. In that case, the fact that the witness
was related to the victim or was his friend, may not
necessarily introduce any infirmity in his evidence. But
where the witness is a close relation of the victim and is
shown to share the victim's hostility to his assailant, that
naturally makes it necessary for the criminal Court to
examine the evidence given by such witness very carefully
and scrutinise all the infirmities in that evidence before
deciding to act upon it. In dealing with such evidence,
Courts naturally begin with the enquiry as to whether the
said witnesses were chance witnesses or whether they were
really present on the scene of the offence. If the offence has
taken place as in the present case, in front of the house of
the victim, the fact that on hearing his shouts, his relations
rushed out of the house cannot be ruled out as being
improbable, and so, the presence of the three eye-witnesses
cannot be properly characterised as unlikely. If the criminal
Court is satisfied that the witness who is related to the
victim was not a chance-witness, then his evidence has to
be examined from the point of view of probabilities and the
account given by him as to the assault has to be carefully
scrutinised. In doing so, it may be relevant to remember
that though the witness is hostile to the assailant, it is not
likely that he would deliberately omit to name the real
assailant and substitute in his place the name of enemy of
the family out of malice. The desire to punish the victim
would be so powerful in his mind that he would
unhesitatingly name the real assailant and would not think
of substituting in his place the enemy of the family though
he was not concerned with the assault. It is not improbable
*22* crapeal215o03
that in giving evidence, such a witness may name the real
assailant and may add other persons out of malice and
enmity and that is a factor which has to be borne in mind
in appreciating the evidence of interested witnesses. On
principle, however, it is difficult to accept the plea that if a
witness is shown to be a relative of the deceased and it is
also shown that he shared the hostility of the victim
towards the assailant, his evidence can never be accepted
unless it is corroborated on material particulars. We do not
think it would be possible to hold that such witnesses are
no better than accomplices and that their evidence, as a
matter of law, must receive corroboration before it is
accepted. That is not to say that the evidence of such
witnesses should be accepted light-heartedly without very
close and careful examination; and so, we cannot accept
Mr.Bhasin's argument that the High Court committed an
error of law in accepting the evidence of the three eye
witnesses without corroboration."
20. In Mst. Dalbir Kaur and others vs. State of Punjab, (1976) 4
SCC 158, the Honourable Apex Court concluded in paragraph 11 as under
:-
"11. ...... "There can be no doubt that having regard to the fact
that the incident took place at midnight inside the house of
Ajaib Singh, the only natural witnesses who could be
present to see the assault would be Jaswant Kaur and her
mother Shiv Kaur. No outsider can be expected to have
come at that time because the attack by the appellants was
sudden. Moreover a close relative who is a very natural
witness cannot be regarded as an interested witness. The
term "interested" postulates that the person concerned
must have some direct interest in seeing that the accused
person is somehow or the other convicted either because
he had some animus with the accused or for some other
reason. Such is not the case here. In the instant case there
is absolutely no evidence to indicate that either Jaswant
Kaur or Shiv Kaur bore any animus against the accused.
........"
*23* crapeal215o03
21. In Kartik Malhar vs. State of Bihar, AIR 1995 SCW 540 :
(1996) 1 SCC 614, the Honourable Apex Court has held in paragraph 7 as
under :-
"7. On a conspectus of these decisions, it clearly comes out
that there has been no departure from the principles laid
down in Vadivelyu Thevar's case (supra) and, therefore,
conviction can be recorded on the basis of the statement of
single eye witness provided his credibility is not shaken by
any adverse circumstances appearing on the record against
him and the Court, at the same time, is convinced that he is
a truthful witness. The Court will not then insist on
corroboration by any other eye witness particularly as the
incident might have occurred at a time or place when there
was no possibility of any other eye witness being present.
Indeed, the Courts insist on the quality, and, not on the
quantity of evidence."
22. In Harbans Kaur and another vs. State of Haryana, AIR 2005
SCW 2074, it was held in paragraph 7 as under :-
"7. There is no proposition in law that relatives are to be
treated as untruthful witnesses. On the contrary, reason has
to be shown when a plea of partiality is raised to show that
the witnesses had reason to shield actual culprit and falsely
implicate the accused........."
23. After considering the above case law in Namdeo (supra), the
Honourable Apex Court concluded in paragraph 42 as under :-
"42. From the above case-law, it is clear that a close relative
cannot be characterised as an 'interested' witness. He is a
'natural' witness. His evidence, however, must be
scrutinized carefully. If on such scrutiny, his evidence is
found to be intrinsically reliable, inherently probable and
*24* crapeal215o03
wholly trustworthy,conviction can be based on the 'sole'
testimony of such witness. Close relationship of witness
with the deceased or victim is no ground to reject his
evidence. On the contrary, close relative of the deceased
would normally be most reluctant to spare the real culprit
and falsely implicate an innocent one."
24. In the light of the above, the conclusion of the Trial Court that
the testimony of three eyewitnesses viz. PW-1, PW-6 and PW-8 does not
inspire confidence and more so, since another eyewitness PW-10 has
turned hostile rendering the evidence of eyewitnesses unreliable, is
unsustainable. From the above referred judgments of the Honourable
Apex Court, it is apparent that if eyewitnesses are also injured victims and
are natural witnesses, there should not be over-insistence for
corroboration. In the present case, PW-1, PW-6 and PW-8 have also
suffered bleeding injuries. PW-6, wife of the deceased, had thrown herself
upon Mohan to cover his body and suffered injuries. PW-8, mother of the
deceased, also had suffered severe injuries. In the face of a brutal attack
by multiple accused, a minor discrepancy about the manner of receiving
blows, cannot be expected to be vividly remembered and narrated by the
victim eyewitnesses with clinical precision.
REGISTERING OF THE F.I.R.
25. Insofar as the conclusion of the Trial Court that the FIR was
registered after an inordinate delay, we find that the Trial Court has over
*25* crapeal215o03
reacted to the fact that the incident had occurred at about 08:00 PM on
19.08.1998 and the FIR was registered by PW-1, after travelling overnight,
at 07:00 AM on 20.08.1998 at the Police Station which was 40 kilometers
away and did not have bare minimum conveyance. It has come on record
that there was a police outpost at Kanhergaon. However, in the backdrop
of a brutal attack, PW-1 approached the Police Patil of village
Khaparkheda and accompanied by him, he went to Phalegaon Cross Road.
As no vehicle was available in night, both walked to Kanhergaon Railway
Station and took a train to reach the Hingoli Rural Police Station at about
06:30 AM and lodged the FIR exhibit 35. As such, we do not find these
facts to be so glaring as to doubt the contents of the FIR in view of the
time lag of about 11 hours in registering the FIR.
EVIDENCE AS AGAINST ALL THE ACCUSED
26. In the backdrop of the crystallized position of law, we have
analyzed the testimony of the witnesses and omissions that appeared to
us.
(A) Evidence of PW-1 Deorao Gaikwad
27. The first informant and other injured witnesses as well as all
the accused are resident of one and the same Khaparkheda village, Taluka
and District Hingoli. The ration card of the deceased Mohan, was attached
to the fair price shop run by accused No.1 Bhaskar. On 19.08.1998, the
*26* crapeal215o03
deceased Mohan and PW-1 returned back to their house at about 07:30
PM from their agricultural land. At about 08:00 PM, they both noticed
that all the accused persons were sitting together on a platform (otta) in
the front yard of the house of accused No.2 Baburao.
28. The deceased Mohan went to the platform and questioned
Bhaskar, who was operating the fair price shop by proxy on behalf of his
wife Bharati, as to why he was not given food grains from the last month's
quota. Bhaskar was infuriated. He abused Mohan and then rushed
towards him, assaulted him in such a way that Mohan fell on the ground.
At that time, Baburao picked up a big stone and smashed the face of
Mohan. As this happened, Shivaji, Natha, Ramchandra, Vinod, Tukaram
and Gyanoji picked up stones lying at the construction site near the
platform on which they were sitting and pelted them on the body of the
deceased Mohan. The deceased accused No.10 Antakalabai and accused
No.9 Shobhabai were supplying stones to the other accused. Mohan died
on the spot as his face and skull got smashed.
29. PW-1, PW-6 and PW-8 tried to rescue Mohan. Bhaskar
assaulted PW-1 with his stick and Baburao gave a blow of a stone on the
head of PW-8 Jayabai. As PW-6 Shobhabai had covered the body of
Mohan, the accused pelted stones on Shobhabai.
30. In the testimony of PW-1, it was narrated that Shivaji
assaulted Mohan with an axe. After PW-6 laid on the body of her husband
*27* crapeal215o03
Mohan in order to rescue him, Shivaji gave an axe blow on the right side
of her forehead near the right ear. Baburao assaulted her with a stone and
Natha assaulted her with a stick. When PW-1 Deorao started screaming,
Bhaskar gave a stick blow on his head and the other accused pelted him
with stones. Two electric bulbs attached to the electric pole were already
switched on in front of the house of Baburao, which is the spot of the
crime. In addition to these two lamp posts, two electric bulbs at the door
of the house of Baburao were also switched on. The construction of a
portion of the house of Baburao was going on. PW-1, therefore, could see
the incident clearly under the said lights.
31. Following are the omissions brought on record from the cross-
examination of PW-1 Deorao and which were proved in the evidence of
PW-11 I.O.:-
(a) On the date of the incident, PW-1 and the deceased Mohan
had returned home from their agricultural field at about 06 to 06:30 PM.
(b) Accused Shivaji assaulted Mohan with an axe.
(c) Accused Shivaji assaulted Gayabai with an axe.
(d) Accused Shivaji gave an axe blow on the right side of the
forehead and near the right ear of Shobhabai.
(e) Accused Natha Kamble assaulted Shobhabai Gaikwad by a
stick, due to which, she sustained a fracture to her hand.
(f) Gayabai shouted in high tone "my son died, run, run.".
*28* crapeal215o03
(g) The pole having two electric bulbs was located in front of his
house.
(h) Two bulbs were also lighted at the door of his house.
(i) Two electric bulbs were lighted at the door of the house of
accused Baburao.
(j) PW-1 could see the incident in the light of these bulbs.
(k) At about 03:30 AM, he went to the Police Patil with a view to
give him a complaint.
(l) At that time, it was raining.
(m) The road was full of mud and water.
32. Following important fact came on record through cross-
examination of PW-1 Deorao :-
(a) PW-1 left the spot for going to the Police Station after
confirming that his brother Mohan is no more in this world.
(B) Evidence of PW-6/ Shobhabai Gaikwad
33. The gist of the testimony of PW-6 Shobhabai Gaikwad, who is
a victim and an eyewitness:-
(a) On 19.08.1998 at about 08:00 PM, the incident took place.
On the date of incident, her husband Mohan had demanded food grains
from accused No.1 Bhaskar. Bhaskar had assured her husband of giving
*29* crapeal215o03
food grains of his quota, which he had not lifted for the last month. At
that time, all accused were sitting at the spot of incident i.e. platform.
(b) Accused Bhaskar caught hold of and thrashed her husband
Mohan, who fell on the earth. Accused Baburao gave a stick blow on the
head of her husband. Then accused Shivaji gave him a stone blow. Then,
accused Ramchandra gave him a stone blow. All the accused started
pelting stones. Bhaskar caused fracture injury to the leg of her husband.
Bhaskar gave an axe blow on the waist and backside as well as on the
head of her husband Mohan.
(c) She and her mother-in-law were also assaulted by the
accused, when they intervened. A stick blow on the head of her brother-in-
law Deorao was also given by the accused. Shivaji had given her an axe
blow on her face on the right hand side of the lower corner of the right
eye-socket. Old aged accused persons were instigating other accused
saying "her husband and Deorao should die and not remain alive". At the
time of the incident, she was at a distance of two feet from her husband.
(d) Accused No.7 Shivaji took two stones in his hands, went a
little ahead from the place where her husband Mohan was lying
motionless and started challenging "one who wants to support Mohan,
come forward".
(e) The house of accused Baburao and her house are situated
near to each other. Two electric bulbs each were lighted in front of her
*30* crapeal215o03
house as well as in front of the house of the accused Baburao. So also, one
bulb was lighted on electric pole.
(f) Accused Baburao gave a blow of a very big stone to her
husband. Accused No.5 Natha was assaulting with a stick whereas, other
accused persons Baburao, Tukaram, Gyanoji, Vinod, Shobhabai and
Antakalabai were assaulting by stones.
(g) Since accused No.1 Bhaskar was not giving the quota of food
grains from his fair price shop and was not distributing food grains to the
ration card holders, an application was made to the Tahasildar by many
persons of their village with signatures, including that of her husband.
Mohan and his family were assaulted as the said Mohan signed the
aforesaid application, which was submitted to the Tahasildar. She has
identified accused Nos.2 to 9 and also the muddemal weapons viz. axe
and stick.
34. Following are the omissions brought on record through cross-
examination of PW-6 Shobhabai and proved in the evidence of PW-11,
I.O.:-
(a) Moving an application to the Tahasildar complaining that
accused No.1 Bhaskar was not distributing the food grains properly to the
ration card holders and her husband Mohan's signing the said application.
*31* crapeal215o03
(b) Mohan's killing by the accused since he had signed the
application made to the Tahasildar complaining against accused No.1
Bhaskar.
(c) Two bulbs each were lighted in front of her house and the
house of accused No.2 Baburao Kamble.
(d) In addition to the above, there was one electric bulb on the
electric pole.
(e) She was standing at a distance of about two feet from her
husband Mohan, when the accused were assaulting him.
(f) She pleaded to accused No.7 Shivaji to stop assaulting Mohan
since nothing remained (as he was almost dead).
(g) Accused No.7 Shivaji then picked up two stones in his hand,
went a little away from the body of Mohan and started challenging the
persons who had gathered around by saying "whoever wants to support
Mohan, come forward".
(h) The aged accused persons were instigating the other accused
(young accused) to assault Mohan.
(i) Accused No.7 Shivaji gave an axe blow below her right eye-
socket.
(j) All accused persons were sitting on the platform when the
incident occurred.
*32* crapeal215o03
(C) Evidence of PW-8 Jayabai Amruta Gaikwad
35. PW-8, mother of PW-1 and the deceased, has deposed at
exhibit 51 that about five years ago, at about 08:00 PM, the said incident
took place. On the date of the incident, the deceased Mohan and PW-1
Deorao had gone to their field for spraying insecticides on the standing
cotton crop. They returned home from the field. Accused No.1 Bhaskar,
accused No.2 Baburao, accused No.3 Ramchandra, accused No.5 Natha
and accused No.7 Shivaji were sitting on the platform situated in front of
their house. Accused No.8 Vinod was also amongst them. Mohan asked
Bhaskar and Baburao to give him the food grains of his share from the
previous month's quota from the fair price shop, upon which, Bhaskar
physically threw Mohan on the ground. Then, Baburao lifted a stone and
threw it towards Mohan. The said stone stuck the left side of his head near
the left upper back of the forehead. They were shouting and requesting
people to come forward for rescuing Mohan. Then, Bhaskar gave a stick
blow on the head of Deorao. Tukaram and Natha pelted stones which
stuck the back of PW-1 Deorao. Bhaskar gave an axe blow to the leg and
head of Mohan. He also gave an axe blow on the waist of Mohan. Shobha
was raising shouts asking for people to rescue Mohan. Natha gave a stick
blow on her forearm. Bhaskar gave her an axe blow on the right side of
her face. It hit her near the right side of the right eye-socket. PW-8 started
shouting asking the assailants to desist from the assault. Baburao gave a
*33* crapeal215o03
stone blow on her forehead on the top left side. Shivaji gave an axe blow
on upper part of the left side of the chest of PW-8. She then said that
Bhaskar had given her an axe blow. Because of such blows and stone hits
on her back, she was unable to sit or get up. Due to the stick blow given
by Natha, Shobha suffered a fracture to her right forearm. She identified
the accused and the muddemal crime weapons like axe, stick and stones.
The deceased Mohan had told her that he was obstructed at Hingoli by
Bhaskar, Baburao, Natha, Ramchandra and Shivaji.
36. Following are the omissions which have been brought on
record through the cross-examination of PW-8 Jayabai and proved in the
evidence of the Investigating Officer:-
(a) Mohan had told her about the obstruction caused by Bhaskar,
Baburao, Ramchandra, Natha and Shivaji, at Hingoli.
(b) She was shouting and requesting the accused to stop the
assault.
(c) PW-6 was asking the people to come forward for rescuing
Mohan.
(d) Stones were pelted by Tukaram and Natha hitting the back of
PW-1.
(e) Mohan had demanded food grains from the last month's
quota of the fair price shop, from Bhaskar and Baburao.
*34* crapeal215o03
(f) The stone pelted by Baburao had hit the left side of the head
of Mohan.
37. Considering the testimonies of these eyewitnesses and upon
perusing the omissions, which were proved through the testimony of PW-
11 I.O., we are assessing the admissible evidence available against all the
accused.
38. Admissible evidence against accused No.1/ Bhaskar (now
deceased):-
(a) According to the admissible evidence of PW-1, accused No.1
Bhaskar had abused and assaulted Mohan and had physically banged him
on the ground.
(b) According to the admissible evidence of PW-6 Shobhabai,
accused No.1 Bhaskar had physically assaulted Mohan and had thrown
him to the ground.
(c) According to the PW-8 Jayabai, accused No.1 Bhaskar had
physically assaulted Mohan and had thrown him to the ground, had given
a stick blow on the head of PW-1 Deorao and had give axe blows on the
leg, head and waist of Mohan. He also gave an axe blow on the right side
of the face of PW-8.
*35* crapeal215o03
39. Admissible evidence against accused No.2/ Baburao:-
(a) As per the admissible evidence of PW-1 Deorao, accused No.2
Baburao gave a blow of a big stone on the face of Mohan and had hit a
stone on the forehead of PW-8 Jayabai.
(b) As per the admissible evidence of PW-6 Shobhabai, accused
No.2 Baburao had given a stick blow on the head of Mohan.
(c) As per the admissible evidence of PW-8 Jayabai, accused No.2
Baburao had hit a stone on her forehead and also to the deceased Mohan.
40. Admissible evidence against accused No.3/ Ramchandra:-
(a) According to the admissible evidence of PW-1/ Deorao,
accused No.3/ Ramchandra had pelted stones on the body of Mohan.
(b) As per the admissible evidence of PW-6/ Shobhabai, accused
No.3/ Ramchandra along with other accused had assaulted Mohan.
(c) As per the admissible evidence of PW-8/ Jayabai, accused
No.3/ Ramchandra had obstructed her son Mohan at Hingoli along with
other accused.
41. Admissible evidence against accused No.4/ Tukaram:-
(a) As per the admissible evidence of PW-1/ Deorao, accused
No.4/ Tukaram along with other accused pelted stones towards Mohan.
(b) PW-6/ Shobhabai has not deposed anything against accused
No.4/ Tukaram.
*36* crapeal215o03
(c) As per the admissible evidence of PW-8/ Jayabai, accused
No.4/ Tukaram along with accused No.5/ Natha had pelted stones, which
struck PW-1 Deorao on his back.
42. Admissible evidence against accused No.5/ Natha:-
(a) As per the admissible evidence of PW-1/ Deorao, accused
No.5/ Natha assaulted PW-6 Shobhabai with a stick.
(b) As per the admissible evidence of PW-6/ Shobhabai, accused
No.5/ Natha caused a fracture to her forehead by inflicting a stick blow
and also assaulted her husband along with other accused, till he died.
(c) As per the admissible evidence of PW-8/Jayabai, accused
No.5/ Natha gave a stick blow on the right forearm of PW-6 Shobhabai,
which resulted in a fracture injury. Natha had obstructed Mohan at
Hingoli, along with other accused.
43. Admissible evidence against accused No.6/ Gyanoji:-
The appeal abates as against accused No.6/ Gyanoji.
44. Admissible evidence against accused No.7/ Shivaji:-
(a) PW-6/ Shobhabai has stated that accused No.7/ Shivaji gave a
blow of stone to Mohan and an axe blow on her face below the right eye
socket and along with other accused, had assaulted Mohan till he died.
(b) PW-8/ Jayabai deposed that accused No.7/ Shivaji gave her
an axe blow on the left side upper back of her chest. She then stated that
*37* crapeal215o03
the said axe blow was given by accused No.1 Bhaskar and accused No.7/
Shivaji along with other accused had obstructed Mohan at Hingoli.
45. Admissible evidence against accused No.8/Vinod :-
This appeal abates as against accused No.8/ Vinod.
46. Admissible evidence against accused No.9/Shobhabai :-
(a) PW-1/ Deorao has stated that accused No.9/ Shobhabai,
pelted stones towards the deceased Mohan.
(b) PW-6/ Shobhabai and PW-8/ Jayabai have stated nothing
against accused No.9/ Shobhabai.
47. Admissible evidence against accused No.10/ Antakalabai:-
This appeal abates as against accused No.10/ Antakalabai.
IS THE MEDICAL EVIDENCE CORROBORATED BY THE TESTIMONY OF
EYE WITNESSES?
48. PW-2 Dr.Ganesh Bangar had performed the postmortem on
the body of Mohan. The wounds noticed by him have been set out in the
postmortem report, which have been reproduced herein above. There
were ten injuries. The injuries mentioned at Sr.Nos.1 and 2 clearly
indicate that the face and skull of the deceased Mohan was crushed due to
a large stone having been dropped on his face by the accused Baburao.
The internal examination indicated a fracture of the frontal, parietal and
temporal bones on the left side. Fragments of fracture were present in the
*38* crapeal215o03
brain tissue. The crush injury was caused due to fracture of these bones.
Intra ceretiral haemorrhage was present. In the opinion of the doctor, the
cause of death was the crush injury to the brain due to the fracture of the
above mentioned bones.
49. PW-2 Dr.Bangar specifically recorded his opinion in cross-
examination that a heavy stone can cause injury No.1. He has supported
his opinion with his explanation that the left side face was compressed
with fracture of frontal, parietal and temporal bones leading to crush
injury to the bones and intra-cerebral haemorrhage. The said injury with
corresponding internal injuries is possible by using a big stone. He then
pointed out the bigger stone from amongst the two stones in the
muddemal, as being the cause of death.
50. PW-2 Dr.Bangar has then referred to injury Nos.2, 3 and 7 to
9 and has opined that these injuries are possible due to the axe that was
shown to him (muddemal article No.1). Injury Nos.4 to 6 and 10 are
possible by sticks (article No.3).
51. PW-2 Dr.Bangar then examined other victims PW-1 Deorao,
PW-6 Shobhabai and PW-8 Jayabai. He has described their injuries which
are corroborated by their injury certificates. He has described in details
the said injuries from paragraph 8 to paragraph 12 of his testimony at
Exhibit-39. He has specifically opined that the death of Mohan was caused
by injury No.1.
*39* crapeal215o03
52. PW-2 Dr.Bangar has withstood an extensive cross-
examination. The cross-examination could not bring out any discrepancy
in his testimony. He has specifically averred that none of the ten injuries
could be caused due to Mohan falling on the ground. He has then negated
the suggestion that injury No.1 caused to Mohan was possible by dashing
him against a wall and that the compression of his skull was due to the
object having been dropped "from above to below downward and not
from the lateral side only". As such, nothing significant emerges from his
cross-examination which would dent his version and the contents of the
postmortem report.
53. It is, therefore, quite evident that the testimony of the victims,
though may have minor or negligible discrepancies, are corroborated by
the medical evidence.
54. Evidence as regards available lights to identify the assailants:-
(a) PW-6, eye-witness and wife of the deceased, has stated in her
examination-in-chief that there was an electric pole in front of the house
of accused No.2/ Baburao. Two bulbs were lighted in the front yard of the
said house. She could not assign any reason why her statement under
Section 161 of the Cr.P.C. does not bear this version. She was pleading to
the accused/ Shivaji to stop further attack as "nothing had remained" and
the accused/ Shivaji asked her (mocked at her) as to whether, he should
stop the further assault? and he held two stones in his hand and
*40* crapeal215o03
challenged the villagers to support Mohan. These statements were also not
recorded in her 161 statement. She could not assign any reason why they
were not recorded.
55. PW-7 Assistant Sub-Inspector identified the complaint filed by
PW-1 and stated that it's contents were correct.
56. PW-11 is the Investigating Officer, who has deposed at
exhibit-55. He has specifically narrated that an axe, stones and stick
stained with blood were lying at the crime spot. After a spot panchanama
was drawn in the presence of the panch, the weapons used in the offence
were seized. He identified the axe, stick and stones before the Trial Court.
In his cross-examination, he has stated that it did not transpire in his
investigation that electric bulbs were on in front of the house of the
deceased Mohan or the house of accused No.2/ Baburao. There is no
reference to the axe injuries on the backside of the neck, back waist,
backside of right lower limb and stone injuries to the upper portion of the
right side of the forehead. Insofar as two bulbs lighted in front of the
house of PW-6 are concerned, PW-11 has stated that PW-6 had not
mentioned this aspect. PW-6 has also not stated in her statement under
Section 161 that the accused Shivaji had given her an axe blow on her
face or right hand side of lower corner of her right eye-socket.
*41* crapeal215o03
57. PW-11 further mentioned that PW-8 had not stated before
him that the accused Bhaskar, Baburao, Natha, Ramchandra and Shivaji
had accosted him at Hingoli. He then further stated that though there are
slips pasted on the stick, axe and two stones, they do not bear his
signatures.
WHETHER, THE ASSAILANTS WERE IDENTIFIABLE?
58. The Trial Court disbelieved PW-1, PW-6 and PW-8 on the
ground of they are related to the deceased and has concluded that there
was no sufficient light at the scene of the offence and hence, the eye-
witnesses may not have been able to identify the accused. We do find from
the gist of the admissible portions of the testimonies of the victims/ eye
witnesses reproduced by us herein above, that PW-1 did not mention in
the complaint that two bulbs were lighted at the door of his house and
two bulbs were lighted at the door of the house of accused No.2 Baburao.
So also, PW-6 Shobhabai has repeated the same version in her testimony
and has also stated that one bulb was lighted on the public lamppost.
These particular statements amount to omissions as they were not set out
in the FIR and in the statements recorded under Section 161 of the Cr.P.C..
Even if we conclude that these omissions will have to be ignored, it is
common knowledge that electricity has reached the villages in all parts of
*42* crapeal215o03
the State and gone are the days when the villagers used to live in darkness
or lanterns having kerosene wicks.
59. Be that as it may, the Trial Court has failed to notice that the
deceased Mohan and PW-1 had identified the members of the Kamble clan
sitting on their otta (platform) adjacent to their front door of the house.
Having lived for decades in the same village and having known each other
for decades, these two and the eye witnesses could identify the members
of the Kamble clan and therefore, the deceased Mohan went upto accused
No.1 Bhaskar to start a conversation on the fair price shop grain supply,
which led to the unfortunate incident. Even the accused could identify the
deceased Mohan and therefore, they attacked him. They also identified
PW-1 being the brother of the deceased Mohan and assaulted him. When
PW-6/ Shobhabai, the wife of the deceased Mohan, threw her body to
cover Mohan and protect him from further blows, accused No.2/ Baburao
and accused No.7/ Shivaji could identify her as well as the mother of the
deceased Mohan i.e. PW-8/ Jayabai. The attack on the victims was not a
result of mistaken identity. If the accused could precisely identify the
victims, it would be true vice-versa.
60. In this backdrop and with whatever light that was available
and as the victims were fully acquainted with the accused, the informant
specifically recorded the manner of attack by the accused on the deceased
Mohan, on himself, PW-6 and PW-8. We are, therefore, of the view that the
*43* crapeal215o03
Trial Court has casually ignored the evidence and has failed to apply it's
mind in this case.
61. We have already dealt with the omissions in the testimony of
PW-1, PW-6 and PW-8 and we have culled out only the admissible
evidence. It is, therefore, established that accused No.2 Baburao, accused
No.3 Ramchandra, accused No.4 Tukaram, accused no.5 Natha, accused
No.7 Shivaji and accused No.9 Shobhabai, had participated in the attack
on the deceased Mohan and the other victims like PW-1 Deorao, PW-6
Shobhabai and PW-8 Jayabai. The injury caused by Baburao, alone proved
to be fatal.
Whether, the accused coming together after dinner on the
platform in the front yard of the house of Baburao, can be said to have
formed an unlawful assembly under Section 141 of the Indian Penal
Code?
62. We have carefully gone through Sections 141 to 149 of the
IPC. We find it apposite to reproduce Sections 141 and 149 as under :-
"141. Unlawful assembly.--An assembly of five or more persons
is designated an "unlawful assembly", if the common object
of the persons composing that assembly is--
First.--To overawe by criminal force, or show of criminal
force, [the Central or any State Government or Parliament
or the Legislature of any State], or any public servant in
the exercise of the lawful power of such public servant; or
Second.--To resist the execution of any law, or of any legal
process; or
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Third.--To commit any mischief or criminal trespass, or
other offence; or
Fourth.--By means of criminal force, or show of criminal
force, to any person, to take or obtain possession of any
property, or to deprive any person of the enjoyment of a
right of way, or of the use of water or other incorporeal
right of which he is in possession or enjoyment, or to
enforce any right or supposed right; or
Fifth.--By means of criminal force, or show of criminal
force, to compel any person to do what he is not legally
bound to do, or to omit to do what he is legally entitled to
do.
Explanation.--An assembly which was not unlawful when
it assembled, may subsequently become an unlawful
assembly."
"149. Every member of unlawful assembly guilty of offence
committed in prosecution of common object.--
If an offence is committed by any member of an
unlawful assembly in prosecution of the common object of
that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that
object, every person who, at the time of the committing of
that offence, is a member of the same assembly, is guilty of
that offence."
63. In the State of Punjab vs. Sanjeev Kumar @ Sanju, AIR 2007
SC 2430 and in the State of Karnataka vs. Chikkahottappa, AIR 2008 SC
2690, the Honourable Apex Court concluded that Section 149 has it's
foundation on constructive liability which is the sine qua non for it's
operation. The emphasis is on the common object and not on common
intention. Mere presence in an unlawful assembly cannot render a person
liable unless there was a common object and he was actuated by that
common object and that common object is one of those set out in Section
*45* crapeal215o03
141 of the IPC. Where common object of an unlawful assembly is not
proved, the accused persons cannot be convicted with the aid of Section
149 of the IPC.
64. In Lalji vs. State of U.P., AIR 1989 SC 754 , the Honourable
Apex Court concluded that Section 141 of the IPC makes every member of
an unlawful assembly, at the time of commission of the offence, guilty of
the offence. The section creates vicarious liability for the unlawful acts
committed pursuant to the common object by any other member of the
assembly. The basis of such constructive liability is mere membership of
such assembly with the requisite common object or knowledge. Therefore,
once the Court holds that certain accused persons formed an unlawful
assembly and an offence is committed by any member of that assembly in
prosecution of the common object of that assembly, or such as the
members of that assembly knew to be likely to be committed in
prosecution of that object, every member of that unlawful assembly is to
be held guilt of that offence. After arriving at such finding, it would not be
open to the Court to assess as to who actually did the offensive act or
require the prosecution to prove which of the members did the offensive
act.
65. In Bikau Pandey vs. State of Bihar, AIR 2004 SC 997 and
Madan Singh vs. State of Bihar, (2004) 4 SCC 622 , the Honourable Apex
Court held that it cannot be laid down as a general proposition of law that
*46* crapeal215o03
unless an overt act is proved against a person, who is alleged to be a
member of an unlawful assembly, it cannot be said that he is a member of
an assembly. The only factor required is that he should have understood
that the assembly was unlawful and was likely to commit any of the acts
which fall within the purview of Section 141 of the IPC.
66. In Tanaji Govind Misal vs. State of Maharashtra, (1997) 8
SCC 340, the Honourable Apex Court held that when there was a sudden
unpremeditated free fight between two groups, the members of such
groups would not be said to have formed an unlawful assembly. In
Haramant vs. State of Karnataka, 1994 Cr.L.J. 1422 (SC) , while dealing
with the aspect of common object, the Honourable Apex Court concluded
that the common object has to be inferred from the facts and
circumstances of each case. It is to be inferred from the membership of the
assembly, the weapons used and the nature of injuries and surrounding
circumstances.
67. In Gangadhar Behra vs. State of Orissa, 2003 SCC (Cri.) 32
and in Bikau Pandey (supra), the Honourable Apex Court held that the
object should be common to the persons who composed the assembly, that
is to say that they should all be aware of the object and conquer in it. The
common object may be formed by express agreement after mutual
consultation, but that is by no means necessary. It may be formed at any
stage by all or few members of the assembly and other members may just
*47* crapeal215o03
join. Once formed, it need not continue to be the same. It may be
modified or altered or abandoned at any stage. The expression "in
prosecution of common object" as appearing in Section 149 of the IPC has
to be strictly construed as equivalent to "in order to attain the common
object". It must be immediately connected with the common object by
virtue of the nature of the object. There must be community of object and
the object may exist only upto a particular stage and not thereafter.
68. In Bikau Pandey (supra), it was held in paragraphs 11, 12 and
13 as under :-
"11. 'Common object' is different from a 'common intention' as it
does not require a prior concert and a common meeting of
minds before the attack. It is enough if each has the same
object in view and their number is five or more and that
they act as an assembly to achieve that object. The
'common object' of an assembly is to be ascertained from
the acts and language of the members composing it, and
from a consideration of all the surrounding circumstances.
It may be gathered from the course of conduct adopted by
the members of the assembly. 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. What the
common object of the unlawful assembly is at a particular
stage of the incident is essentially a question of fact to be
determined, keeping in view the nature of the assembly,
the arms carried by the members, and the behaviour of the
members at or near the scene of the incident. It is not
necessary under law that in all cases of unlawful assembly,
with an unlawful common object, the same must be
translated into action or be successful. Under the
Explanation to Section 141, an assembly which was not
unlawful when it was assembled, may subsequently
become unlawful. It is not necessary that the intention or
*48* crapeal215o03
the purpose, which is necessary to render an assembly an
unlawful one comes into existence at the outset. The time
of forming an unlawful intent is not material. An assembly
which, at its commencement or even for some time
thereafter, is lawful, may subsequently become unlawful. In
other words it can develop during the course of incident at
the spot eo instanti.
12. Section 149, IPC consists of two parts. The first part of the
section means that the offence to be committed in
prosecution of the common object must be one which is
committed with a view to accomplish the common object.
In order that the offence may fall within the first part, the
offence must be connected immediately with the common
object of the unlawful assembly of which the accused was
member. Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may
yet fall under Section 141, if it can be held that the offence
was such as the members knew was likely to be committed
and this is what is required in the second part of the
section. The purpose for which the members of the
assembly set out or desired to achieve is the object. If the
object desired by all the members is the same, the
knowledge that is the object which is being pursued is
shared by all the members and they are in general
agreement as to how it is to be achieved and that is now
the common object of the assembly. An object is
entertained in the human mind, and it being merely a
mental attitude, no direct evidence can be available and,
like intention, has generally to be gathered from the act
which the person commits and the result therefrom.
Though no hard and fast rule can be laid down under the
circumstances from which the common object can be culled
out, it may reasonably be collected from the nature of the
assembly, arms it carries and behaviour at or before or after
the scene of incident. The word 'knew' used in the second
branch of the section implies something more than a
possibility and it cannot be made to bear the sense of
'might have been known'. Positive knowledge is necessary.
When an offence is committed in prosecution of the
common object, it would generally be an offence which the
members of the unlawful assembly knew was likely to be
committed in prosecution of the common object. That,
however, does not make the converse proposition true;
*49* crapeal215o03
there may be cases which would come within the second
part but not within the first part. The distinction between
the two parts of Section 149 cannot be ignored or
obliterated. In every case it would be an issue to be
determined, whether the offence committed falls within the
first part or it was an offence such as the members of the
assembly knew to be likely to be committed in prosecution
of the common object and falls within the second part.
However, there may be cases which would be within first
offences committed in prosecution of the common object
would be generally, if not always, with the second, namely,
offences which the parties knew to be likely committed in
the prosecution of the common object. [See Chikkarange
Gowda and others v. State of Maysore, (AIR 1956 SC
731)].
13. Therefore, Section 149 has been rightly applied when the
factual position as highlighted by the eyewitnesses is
considered. Even if the absence of motive as alleged is
accepted that is of no consequence and pales into
insignificance when direct evidence establishes the crime.
The first information report was lodged almost
immediately and whatever elaboration has been done is
really very minor in nature. Mere seemingly inconsistencies
which are not contradictions or omissions or are of trivial
nature do not affect substratum of the prosecution version.
That is the situation in the case at hand. The number of
injuries even if not co-related to the number of assailants is
not material. [See Leela Ram (dead) through Duli Chand v.
State of Haryana and another (AIR 1999 SC 3717)]"
69. In the facts before us, the Kamble clan (all accused) were
chitchatting on the platform constructed in the front yard of the house of
accused No.2/ Baburao. The construction material, inclusive of stones and
sand, was lying at that spot. They had finished their dinner and were
relaxing on the platform. To the misfortune of the deceased Mohan and
the other victims, the deceased and PW-1 (brother of Mohan), while
*50* crapeal215o03
returning from their field, noticed that the members of the Kamble family
were sitting on their otta (platform). As Mohan found accused No.1/
Bhaskar, who used to operate the fair price shop by proxy for his wife,
sitting on the otta with his family members that Mohan was reminded of
he having not been given his quota of the grains for the earlier month. He
took this opportunity to question Bhaskar for the non supply of the food
grains. This was the flash point, which infuriated Bhaskar, who abused
Mohan and physically threw him on the ground. As Mohan landed on his
back on the ground, accused No.2 Baburao seemed to have a sudden gush
of adrenaline. He picked up a large stone (article No.2) and smashed the
face/ skull of Mohan on the left side. Probably Mohan may have turned
his face to the right to rescue himself since he may not have expected that
Baburao would throw a stone at him. The crushing of his frontal, parietal
and temporal bones of the skull, appear to have caused his death instantly.
70. From the admissible evidence of eye witnesses PW-1, PW-6
and PW-8, we find that PW-1 has specifically stated that accused No.2
Baburao picked up a big stone (article No.2) and smashed the face of the
deceased Mohan. The admissible piece of evidence of PW-8 Jayabai
corroborates the version of PW-1 Deorao that accused No.2 Baburao had
picked up a large stone and thrown the same on the face of the deceased
Mohan, who was fallen on the ground. On the basis of the medical
evidence on record and the testimony of PW-2 Dr.Bangar, the death of
*51* crapeal215o03
Mohan was caused by the blow of the stone which smashed frontal,
parietal and temporal bones of his skull. Having concluded that the
private assembly of the Kamble clan would not amount to an unlawful
assembly under Section 141 of the IPC, Section 149 of the IPC will have
no applicability. Accused No.2/ Baburao is, therefore, clearly responsible
to have caused the death of Mohan with the use of the stone.
71. Insofar as accused No.7 Shivaji is concerned, we can easily
see that he had participated in this attack on the deceased Mohan, PW-1
Deorao and PW-6 Shobhabai. The eye witness PW-8/ Jayabai has not
ascribed any role to accused No.7/ Shivaji. PW-1/ Deorao has stated that
accused No.7/ Shivaji had used an axe to strike a blow on Mohan and had
also assaulted PW-8/ Jayabai. However, PW-8/ Jayabai has not specifically
stated that Shivaji has assaulted her. The admissible evidence of PW-6/
Shobhabai does not indicate that Shivaji has assaulted her with an axe.
Her version of the use of an axe by Shivaji has to be ignored in view of the
omissions which are referred to in the earlier paragraphs. Due to such
discrepancies in the statements and failure to mention these acts in the
statements under Section 161 of the Cr.P.C., the version of PW-6 to the
extent of the blows inflicted by Shivaji on PW-6 and PW-8 will have to be
ignored. We are, therefore, constrained to give the benefit of doubt to
accused No.7/ Shivaji, only to the extent of giving axe blows to PW-1 and
PW-6.
*52* crapeal215o03
72. However, as discussed above, there is admissible evidence
with corroboration that accused No.7/ Shivaji had given a stone blow to
Mohan and had pelted stones on the body of Mohan. As such, accused
No.7/ Shivaji is guilty to this extent.
73. As regards accused No.3/ Ramchandra, as recorded herein
above, the admissible evidence against him is available from the
testimonies of PW-1/ Deorao and PW-6/ Shobhabai, which establish that
accused No.3/ Ramchandra had pelted stones on Mohan's body. Accused
No.3 appears to have followed accused No.2/ Baburao in injuring Mohan
by pelting stones. The medical evidence indicates several such injuries on
the body of Mohan having been caused by stones. Accused No.3/
Ramchandra is guilty to this extent.
74. As regards accused No.4/ Tukaram, the admissible evidence
of PW-1, PW-6 and PW-8 indicates that he pelted stones on PW-1 Deorao
and on the body of Mohan. Accused No.4/ Tukaram is also guilty to this
extent.
75. Insofar as the role of accused No.5 Natha is concerned, the
admissible evidence from the testimonies of PW-1, PW-6 and PW-8
establishes that accused No.5 Natha assaulted PW-6/ Shobhabai with a
stick. He caused fracture injury on the forehead of PW-6 and had also
injured the right forearm of PW-6 causing fracture injury with the use of
*53* crapeal215o03
the stick. The medical evidence corroborates such injuries. Accused No.5/
Natha is, therefore, guilty to this extent.
76. To the extent of accused No.9/ Shobhabai, the admissible
evidence of PW-1 indicates that she pelted stones towards Mohan. The eye
witnesses PW-6 and PW-8 do not ascribe any role to accused No.9/
Shobhabai through their admissible evidence. In the absence of
corroboration to the evidence of PW-1, we are giving benefit of doubt to
accused No.9/ Shobhabai.
77. Having held accused No.2/ Baburao guilty of murdering
Mohan as the large stone injury on the skull on Mohan proved to be a
fatal blow resulting in the death of Mohan, we hold accused Nos.3/
Ramchandra, No.4/ Tukaram, No.5/ Natha, No.7/ Shivaji and No.9/
Shobhabai guilty of causing minor injuries by pelting stones upon Mohan,
PW-6/ Shobhabai and PW-8/ Jayabai. Had accused No.2/ Baburao not
caused fatal injury, the other injuries caused by these five accused would
not have resulted in the death of Mohan.
WHETHER, SECTION 304 OF THE IPC IS ATTRACTED INSTEAD OF
SECTION 302 IN THE CASE OF ACCUSED NO.2/BABURAO?
78. There can be no debate that the Kamble clan had not pre-
planned the attack on Mohan. They were sitting idle after dinner on the
otta of accused No.2/ Baburao. Neither the Kamble clan had expected the
*54* crapeal215o03
arrival of Mohan, nor did Mohan pre-plan his visit to the house of
Baburao. Since the incident was not pre-planned, the Kamble clan cannot
be said to have executed it's design to attack and kill Mohan as neither of
the gathering would have ever anticipated the arrival of Mohan and the
attack by Bhaskar and Baburao on him. So also, the evidence does not
indicate that Mohan and PW-1 had planned a visit to the house of Bhaskar.
79. In our considered view, it was an unexpected event that
Mohan, upon seeing Bhaskar and other accused sitting on the otta, instead
of going home after arriving from the field, directly approached Bhaskar.
PW-1 accompanied him and thereafter, the unfortunate incident occurred.
We have already concluded that Section 149 of the IPC would not apply as
the family gathering on the platform could not be said to be an unlawful
assembly under Section 141 of the IPC. The evidence before us, therefore,
establishes that neither Mohan/ PW-1 had pre-planned any visit to
Bhaskar/ Baburao, nor Bhaskar and the Kamble clan can be said to have
expected Mohan to arrive so as to plan an assault on him.
80. In the State of Andhra Pradesh vs. Rayavarapu Punnayya and
others, AIR 1977 SC 45, the Honourable Apex Court has culled out a
subtle distinction in Sections 299, 300, 302 and 304 of the IPC. It was
held in paragraphs 14 to 17 and 20 as under :-
"14. Clause (b) of Section 299 corresponds with cls. (2) and
(3) of Section 300. The distinguishing feature of the
mens rea requisite under clause (2) is the knowledge
*55* crapeal215o03
possessed by the offender regarding the particular victim
being in such a peculiar condition or state of health that
the intentional harm caused to him is likely to be fatal,
notwithstanding the fact that such harm would not in the
ordinary way of nature be sufficient to cause death of a
person in normal health or condition. It is noteworthy
that 'intention to cause death' is not an essential
requirement of clause (2). Only the intention of causing
the bodily injury coupled with the offender's knowledge
of the likelihood of such injury causing the death of the
particular victim, is sufficient to bring the killing within the
ambit of this clause. This aspect of clause (2) is borne out
by illustration (b) appended to Section 300.
15. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases
falling under clause (2) of Section 300 can be where the
assailant causes death by a fist blow intentionally given
knowing that the victim is suffering from an enlarged
liver, or enlarged spleen or diseased heart and such blow is
likely to cause death of that particular person as a result
of the rupture of the liver, or spleen or the failure of the
heart, as the case may be. If the assailant had no such
knowledge about the disease or special frailty of the
victim, nor an intention to cause death or bodily injury
sufficient in the ordinary course of nature to cause death,
the offence will not be murder, even if the injury which
caused the death, was intentionally given.
16. In Clause (3) of Section 300, instead of the words 'likely
to cause death' occurring in the corresponding clause (b)
of Section 299, the words "sufficient in the ordinary
course of nature" have been used. The distinction
lies between a bodily injury likely to cause death
and a bodily injury sufficient in the ordinary course of
nature to cause death. The distinction is fine but real,
and, if overlooked, may result in miscarriage of justice.
The difference between clause (b) of Section 299 and
clause (3) of Section 300 is one of the degree of probability
of death resulting from the intended bodily injury. To
put it more broadly, it is the degree of probability of death
which determines whether, a culpable homicide is of the
gravest, medium or lowest degree. The word "likely" in
*56* crapeal215o03
clause (b) of Section 299 conveys the sense of 'probable'
as distinguished from a mere possibility. The words bodily
injury ...... sufficient in the ordinary course of nature to
cause death' mean that death will be the 'most probable'
result of the injury, having regard to the ordinary course
of nature.
17. For cases to fall within clause (3), it is not necessary that
the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries
sufficient to cause death in the ordinary course of
nature. Rajwant v. State of Kerala, AIR 1996 SC 1874 is an
apt illustration of this point."
"20. Clause (c) of Section 299 and clause (4) of Section 300
both require knowledge of the probability of the act
causing death. It is not necessary for the purpose of this
case to dilate much on the distinction between these
corresponding clauses. It will be sufficient to say that
clause (4) of Section 300 would be applicable where the
knowledge of the offender as to the probability of death of
a person or persons in general--as distinguished from a
particular person or persons--being caused from his
imminently dangerous act, approximates to a practical
certainty. Such knowledge on the part of the offender must
be of the highest degree of probability, the act having
been committed by the offender without any excuse for
incurring the risk of causing death or such injury as
aforesaid."
81. This Criminal Appeal is partly allowed. The impugned
judgment and order dated 13.11.2002 in Sessions Trial No.42/1999 is
quashed and set aside.
82. In so far as accused No.2 Baburao is concerned, we are of the
considered view that his case would fall under exception 4 to Section 300
*57* crapeal215o03
and his act would amount to culpable homicide not amounting to murder.
He would, therefore, be liable for punishment u/s 304 Part II of the IPC.
83. In so far as the acts proved to have been committed by
accused Nos.3 Ramchandra, No.4 Tukaram, No.5 Natha, No.7 Shivaji and
No.9 Shobhabai, these offences would attract Section 324 r/w 34 of the
IPC. We accordingly hold them guilty under the said provision.
84. After this judgment was pronounced today, the learned
advocate for the accused sought a pass-over to address the Court as
regards the quantum of sentence. The learned prosecutor also sought a
pass-over to collect instructions as regards the time spent by these accused
in jail while they were undergoing trial.
85. This matter was taken up after the lunch recess. The learned
advocate for the accused submits that accused No.2/ Baburao is about 58
years of age. He has spent three months and 03 days behind the bars as an
under-trial. He prays for the minimum punishment. With regard to
accused No.3/Ramchandra, accused No.5/ Natha and accused No.7/
Shivaji, he submits that as they have been convicted under Section 324
r/w Section 34 of the Indian Penal Code and they have also spent three
months and 03 days behind the bars as under-trials, a lenient view may be
taken. Insofar as accused No.4/Tukaram and accused No.9/ Shobhabai are
concerned, he submits that accused No.4/ Tukaram is about 86 years of
age and he already had a fracture on his hand. Accused No.9/ Shobhabai
*58* crapeal215o03
is about 80 years of age. Considering their state of health, this Court had
exempted their appearance for the pronouncement of this judgment today.
86. The learned prosecutor submits that accused No.9/
Shobhabai has spent only one month and 04 days behind the bars as an
under-trial. Accused No.2/ Baburao was the person who had, unprovoked,
thrown a large stone on the head of Mohan, which caused the crushing
injury on his skull and compressed the brain. He deserves no leniency.
87. Having considered the submissions of the learned counsel to
the extent of the sentence, we find that the deceased Mohan had entered
into a verbal altercation with accused No.1/ Bhaskar, who is no more. He
had a grudge against accused No.1/ Bhaskar considering the malpractices
in distribution of food grains. Accused No.1/ Bhaskar also had a grudge
against the deceased Mohan since Mohan and others are said to have
complained against accused No.1/ Bhaskar to the Tahasildar. We find that
accused No.2/ Baburao had no provocation. Accused No.1/ Bhaskar
abused Mohan and flung him on the ground. Accused No.2/ Baburao
lifted a large stone, which he threw on the skull of Mohan. This was a
fatal injury. Though we have concluded that accused No.2/ Baburao may
not have an intention to kill Mohan, we do find that there was no
provocation for him to lift a large stone and smash the skull of Mohan. We
are, therefore, sentencing accused No.2/ Baburao to suffer rigorous
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imprisonment for a period of 10 (ten) years for the offence punishable
under Section 304 part II of the Indian Penal Code.
88. Insofar as accused No.3/ Ramchandra, accused No.5/ Natha
and accused No.7/ Shivaji are concerned, they shall suffer rigorous
imprisonment for three years with fine of Rs.1000/- each and in default,
to suffer rigorous imprisonment for one month.
89. Insofar as accused No.4/Tukaram and accused No.9/
Shobhabai are concerned, we are considering their cases differently as
accused No.4/ Tukaram is about 86 years of age and has suffered a
fracture. Accused No.9/ Shobhabai is more than 80 years of age and has
ailments. We are, therefore, sentencing them to suffer imprisonment for
the term already undergone by them while they were under-trials and
with fine of Rs.10,000/- (Rupees Ten Thousand) each, in default of which,
they shall suffer simple imprisonment for six months.
90. In view of Section 427 of the Code of Criminal Procedure, the
time spent by accused Nos.2, 3, 5 and 7 in jail as under-trials, shall be set
off against their substantive sentences.
91. In view of the above, these four convicted accused, who are
present in the Court today, shall be taken in custody by the Court duty
constable and shall be produced before the Trial Court at Hingoli by 03:00
PM tomorrow i.e. 05.03.2021. So also, other two accused, namely,
accused No.4/ Tukaram and accused No.9/ Shobhabai, who were
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exempted from remaining present today, shall also be produced by the
concerned police before the Trial Court by 03:00 PM tomorrow, for
undergoing the sentence.
92. Considering that Shri Salgar, learned advocate, was appointed
by this Court through the High Court Legal Services Sub-Committee,
Aurangabad, to represent the respondents/ accused, we quantify his fees
at Rs.20,000/- (Rupees Twenty Thousand) to be paid by the said sub-
committee.
(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
Kps
