The State Of Mah. Thr. P.S.O. ... vs Arun Gabhaji Pakade And 3 Oths
2022 Latest Caselaw 6446 Bom

                                           cr. a. 398.09 and 237.09.odt
                                        1/32


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

             CRIMINAL APPEAL NO.398 OF 2009


1.    The State of Maharashtra
      Through Police Station Officer,
      Nandgaon Khandeshwar,
      Amravati, Distt. Amravati.                     .... APPELLANT


                             // VERSUS //


1.    Arun Gabhaji Pakade,
      Aged about 50 years,

2.    Ankush Arun Pakade,
      Aged about 21 years,

3.    Panchfula Arun Pakade,
      Aged about 47 years,

4.    Chandrabhan Ganpat Petkar,
      Aged about 73 years,
      All R/o. Nandgaon Khandeshwar,
      Distt. Amravati

      All R/o Nandgaon Khandeshwar,
      Distt. Amravati

                   ....
_______________________________________________________
Shri M.J. Khan, APP for the appellant.
Shri P.R. Agrawal, Advocate for the respondents/State.
____________________________________________________________


                          WITH

             CRIMINAL APPEAL NO.237 OF 2009


1.          Arun Gabhaji Pakade,
            Aged about 50 years
                                            cr. a. 398.09 and 237.09.odt
                                        2/32


2.          Ankush Arun Pakade,
            Aged about 21 years,

3.          Panchfula Arun Pakade,
            Aged about 47 years,

4.          Chandrabhan Ganpat Petkar,
            Aged about 73 years,
            All R/o. Nandgaon Khandeshwar,
            Distt. Amravati

            All R/o Nandgaon Khandeshwar,
            Distt. Amravati

             // VERSUS //


1.    The State of Maharashtra,
      Through Police Station Officer,
      Nandgaon Khandeshwar,
      Amravati, Distt. Amravati.                   .... RESPONDENT


_______________________________________________________
Shri P. R. Agrawal, Advocate for the appellants.
Shri M.J. Khan, APP for the respondent/State.
___________________________________________________________

CORAM : SUNIL B. SHUKRE AND G. A. SANAP, JJ.

RESERVED ON:- 15/06/2022 PRONOUNCED ON:- 08/07/2022

JUDGMENT: (Per: G.A. Sanap, J.)

1. These two appeals arise out of judgment and order

dated 16.03.2009 in a Sessions Case No.06/2007. Criminal

Appeal No.237/2009 has been filed by the appellants against

the conviction and sentence.The Criminal Appeal No.398/2009 cr. a. 398.09 and 237.09.odt

has been filed by the State against the order of the acquittal of

the accused for the offences punishable under Section 302 read

with Section 34 of the Indian Penal Code.

2. The appellants in Appeal No.237/2009 and the

respondent Nos.1 to 4 in Criminal Appeal No.398/2009 were

accused Nos.1 to 4 in the Sessions Trial. Learned Additional

Sessions Judge convicted the accused Nos.1 and 4 for the

offence punishable under Section 304 Part II read with Section

34 of the Indian Penal Code and sentenced them to suffer

rigorous imprisonment for seven years and to pay a fine of

Rs.1,000/- each and in default of payment of fine to suffer

simple imprisonment for one month. Learned Additional

Sessions Judge convicted the accused Nos.1 and 4 for the

offences punishable under Section 342 read with Section 34 of

the Indian Penal Code and sentenced them to suffer rigorous

imprisonment for three months and to pay a fine of Rs.500/-

each and in default of payment of fine to further suffer simple

imprisonment for 15 days. Learned Additional Sessions Judge

convicted the accused Nos.2 and 3 for offence punishable

under Section 325 read with Section 34 of the Indian Penal

Code and sentenced them to suffer rigorous imprisonment for cr. a. 398.09 and 237.09.odt

one year and to pay a fine of Rs.1,000/- each and in default of

payment of fine to further suffer simple imprisonment for one

month. The substantive sentence awarded to the accused Nos.

1 and 4 were directed to run concurrently.

3. For the purpose of convenience, the appellants

would be referred by their nomenclature in the Sessions trial.

The First Information Report was registered on the report of

informant-Dipak, who is the son of deceased Ramdas Pingale.

The accused and the deceased are the residents of

Onkarkheda, Taluka Nandgaon Khandeshwar, District

Amravati. The deceased was residing alongwith his wife Kamla

and son Dipak. The accused No.2 is the son of the accused

No.1 and accused No.3 is the wife of accused No.1. The

accused No.4, at the relevant time, was working as agricultural

labourer with the accused No.1. The incident as can be seen

from the First Information Report occurred on 24/07/2006 at

about 4.00 a.m. The accused as per the case of the prosecution

were alleging that the deceased had an evil eye upon the

accused No.3- Panchfula.

4. Informant-Dipak on 24.07.2006 at about 4.00 a.m.

woke up hearing commotion and the cries of his mother cr. a. 398.09 and 237.09.odt

Kamla, who was outside the house. Informant-Dipak,

therefore, came out of the house. He saw that the deceased

was tied to an almond tree by the accused Nos.1 to 4 with a

rope. The accused Nos.1, 2 and 4 were armed with sticks. The

accused No.3 Panchfula was armed with a sandal (Chappal).

All the accused were assaulting the deceased by means of

weapons carried by them. The mother of the informant-Dipak

(Kamla) requested the accused not to assault the deceased.

The accused did not pay heed to her request. On the

suggestion of his mother, Dipak went to call Haridas

Wamanrao Bhoyar (PW-6). He and Shri Bhoyar came to the

spot of the incident. The accused by that time had fled from

the spot. The Dipak-informant and Haridas Bhoyar went to the

police station. They narrated the incident to the Police. The

Police visited the spot. They found that the deceased

succumbed to the injuries sustained at the hands of the

accused.

5. On the basis of the report, crime bearing

No.78/2006 came to be registered against the accused. Dilip

Subhedar Gawde (PW-9) Police Inspector carried out the

investigation. He visited the scene of offence and drew the cr. a. 398.09 and 237.09.odt

Panchanama. He held the inquest on the dead body of the

deceased and prepared the inquest Panchanama. The articles

were seized from the spot. He obtained the postmortem report.

He arrested the accused. During interrogation, the accused

No.1 made a statement with regard to the concealment of the

stick and which led to the discovery of the same.

6. On committal of case to the Sessions Court by the

Judicial Magistrate First Class, Nandgaon Khandeshwar,

learned Additional Sessions Judge framed the charge against

the appellants. It was read over and explained to them. They

pleaded not guilty to the charge. The prosecution in order to

bring home the guilt against the accused examined nine

witnesses. Number of documents were exhibited during the

course of the trial. The defence of the accused persons

disclosed during the recording of the evidence of the witnesses

and at the time of their statements recorded under Section 313

Cr.P.C. is that they have been falsely implicated because they

had initiated action against the deceased for harassing the

accused No.3 and even on the day of incident, the deceased

had tried to molest accused No.3 by entering into house of the

accused No.1 in the night hours.

cr. a. 398.09 and 237.09.odt

7. Learned Additional Sessions Judge on

appreciation, analysis and scrutiny of the evidence found the

accused guilty of the offences as mentioned above, and

sentenced them as above. Being aggrieved by this order, the

accused have preferred the appeal. The State is aggrieved by

the acquittal of accused Nos.1 to 4 for principal offence of

murder under Section 302 of the Indian Penal Code and

therefore, the State has also preferred the appeal.

8. We have heard learned Advocate for the accused

and learned APP for the State. We have gone through the

record and proceedings.

9. Shri P. R. Agrawal, learned Advocate for the

accused Nos.1 to 4 submitted that the evidence adduced by the

prosecution is not sufficient to bring home guilt of all the

accused. Learned Advocate by drawing our attention to the

evidence of Dr. Dilip Bilolikar, Medical Officer(PW-8) submitted

that the cause of death was asphyxia due to strangulation and

therefore, without concrete evidence that the accused had

strangulated the deceased, learned Additional Sessions Judge

ought to have given them the benefit of doubt. Learned

Advocate on the basis of evidence of eye witnesses and cr. a. 398.09 and 237.09.odt

evidence of the Medical Officer submitted that the offence

proved against the accused was neither murder nor culpable

homicide not amounting to murder. Learned Advocate

therefore, submitted that the conviction of the accused Nos.1

and 4 for an offence punishable under Section 304 part II of

the Indian Penal Code is not sustainable. While assailing the

evidence of the eye witnesses, learned Advocate for the

accused submitted that the evidence of the eye witnesses as to

the actual occurrence of the incident is full of omissions and

contradictions and as such not worthy of credence. As far as

the accused Nos.1 and 4 are concerned, learned Advocate

submitted that at the most they could have been convicted for

causing grievous hurt to the deceased and ought to have been

awarded the sentence awarded to the accused Nos.2 and 3 for

the offence punishable under Section 325 of the Indian Penal

Code.

10. Shri M.J. Khan, learned APP submitted that

learned Additional Sessions Judge has not properly

appreciated the evidence and therefore, committed a mistake

in acquitting the accused of the major charge for an offence

punishable under Section 302 of the Indian Penal Code.

cr. a. 398.09 and 237.09.odt

Learned APP submitted that the oral, documentary and

circumstantial evidence is sufficient to prove that in

furtherance of their common intention the accused Nos.1 to 4

strangulated the deceased and therefore, they are liable to be

convicted and sentenced under Section 302 of the Indian Penal

Code. Learned APP submitted that even on the point of

awarding the conviction to the accused Nos.1 and 4 for the

lesser offence of a culpable homicide not amounting to murder

punishable under Section 304 Part II of the Indian Penal Code,

learned Judge has not recorded appealable reasons. In the

submission of the learned APP, the charge of murder

punishable under Section 302 of the Indian Penal Code has

been proved on the basis of the evidence. The learned APP

took us through the evidence of eye witnesses and the

observations made by the learned trial Judge on the point of

their credibility and submitted that learned trial Judge has

accepted their evidence being worthy of credence to record the

conviction for the lesser offences against the accused Nos.1 to

4. Learned APP therefore, submitted that this is a fit case

where the accused Nos.1 to 4 are liable to be punished for the

offence punishable under Section 302 of the Indian Penal

Code.

cr. a. 398.09 and 237.09.odt

11. We have minutely perused the oral and

documentary evidence as well as the judgment and order

passed by the learned Additional Sessions Judge. It is

undisputed that learned trial Judge has believed and accepted

the evidence of eye witnesses. Learned trial Judge has

recorded the finding that the death of the deceased was

homicidal and the accused Nos.1 and 4 were responsible for

causing his death. It is further seen from perusal of the

judgment of the trial Court that based on the evidence and

circumstances, learned trial Judge has drawn the inference of

the complicity of the accused Nos.1 and 4 in strangulating the

deceased with the rope. Before we proceed to appreciate the

evidence of the eye witnesses to the incident and the evidence

of medical Officer, it would be necessary to state certain

relevant facts. The incident occurred in the courtyard of house

of the accused Nos.1, 2 and 3. It has been stated in the report

lodged by Dipak (PW-3) that the accused had a grudge against

the deceased because according to them, the deceased was

keeping an evil eye upon the accused No.3 Panchfula. The

incident occurred at 4.00 a.m. The house of the accused Nos.1

to 3 is at a short distance from the house of deceased. The

accused have taken the defence that deceased had an evil eye cr. a. 398.09 and 237.09.odt

upon the Panchfula. In the past, deceased had molested her.

The complaint was lodged against the deceased. It is their

defence that on the given date and time, the deceased entered

their house and molested Panchfula. When Panchfula made

hue and cry the deceased was caught hold. Kamla (PW-4) the

wife of the deceased has stated that at 4.00 a.m. the deceased

had gone to attend the natures call. It is therefore, crystal clear

that deceased on his own went towards the house of the

accused Nos.1 to 3 and by entering the house molested the

modesty of accused No.3- Panchafula. In our view, the above

facts would be very relevant and required to be borne in mind

while appreciating the evidence and the submissions advanced

on behalf of the accused Nos.1 to 4 as well as by learned APP.

12. Dr. Dilip Bilolikar (PW-8) conducted the

postmortem of the body of the deceased. On examination of

the dead body Dr. Dilip Bilolikar (PW-8) found following

external injuries:-

"1. Left hand forearm fracture at lower end.

2. Contusion over left arm with greenish discolouration size 8 cm to 6 cm.

3. Superficial abrasion with redish colouration of size 3 cm. X 3 cm. Over left arm laterally.

4. Ligature marks shallow size 2 cm x 8 cm cr. a. 398.09 and 237.09.odt

over middle of neck which is shallow not deep not extending up to nape of neck.

5. Contusion over right shoulder of 3 x 2 cm three in numbers

6. Contusion with stripped mark over right side near neck extending from neck laterally to base side of size 2 cm x 6 cm

7. Contusion over left arm

8. Multiple contusion over back.

9. Swelling with haetoma over middle of back of size 10 cm x 10 cm.

            10.   Multiple     contusion       with       blackish
            discolouration."

13. Dr. Dilip Bilolikar (PW-8) has stated that all the

above injuries were ante mortem. The cause of death was

asphyxia due to strangulation. He has stated that injury No.4

i.e ligature mark over the neck was possible if the nylon rope

was tied around the neck. The sum and substance of his

evidence is that the death was due to strangulation and not

due to other injuries namely injury Nos.1 to 3 and 5 to 9. The

evidence of Medical Officer (PW-8) does not clearly indicate

whether the death was homicidal, suicidal or accidental. At

this stage, it would be necessary to mention an important

answer given to the pointed question by Medical Officer cr. a. 398.09 and 237.09.odt

(PW-8) in his cross-examination. Medical Officer (PW-8) has

admitted that in this case force was used but too much force

was not used. He has further stated that strangulation in this

case could be possible on account of accident also. While

answering the next question Medical Officer (PW-8) has stated

that the strangulation on the neck of the deceased found by

him is possible in case the hands of a person are tied and he is

dragged by the rope and the rope comes into contact with the

neck.

14. In the backdrop of this, evidence of the Medical

Officer, it would be necessary to see whether the evidence on

record is sufficient to establish that the accused Nos.1 to 4 had

tied the rope around the body and particularly around the neck

of the deceased and thereby strangulated him. In other words,

whether the said evidence is sufficient to prove the authorship

of the strangulation. At this stage, it is necessary to mention

that learned Additional Sessions Judge found the evidence

cogent, reliable and acceptable. Additional Sessions Judge on

testing the said evidence on the touch stone of the credibility

believed the same and recorded the conviction as above. This

finding of a fact has been challenged by the accused Nos.1 to 4 cr. a. 398.09 and 237.09.odt

for recording the conviction and by the State for acquitting the

accused under Section 302 of the Indian Penal Code.

15. On perusal of the judgment and order passed by

learned Additional Sessions Judge, we agree with his finding

on the point that the evidence of the eye witnesses namely

Dipak (PW-3), Kamla (PW-4), Ramdas (PW-5), Haridas (PW-6)

and Wasudeo (PW-7) is credible and acceptable. However,

according to us, though the evidence is credible and

acceptable, the same would not be sufficient either to prove

the charge under Section 302 of the Indian Penal Code or even

of a lesser offence punishable under Section 304 Part II of the

Indian Penal Code.

16. We have minutely perused the evidence of the eye

witnesses Dipak (PW-3), Kamla (PW-4), Ramdas (PW-5),

Haridas (PW-6) and Wasudeo (PW-7). In our opinion, the

evidence of these witnesses is not sufficient to establish with

certainty and positively that the accused Nos.1 to 4 either

strangulated the deceased with nylon rope or tied the deceased

with the rope on his neck. Before proceeding to appreciate the

evidence, we may mention that the accused in their statement

recorded under Section 313 Cr.P.C. have disclosed their cr. a. 398.09 and 237.09.odt

defence. The accused No.1 has stated that the deceased

entered his house while he was asleep. His wife Panchfula

raised alarm and he woke up. The deceased ran away from his

house and fell in the drain. The accused No.4 came there and

accused Nos.1 and 4 tied hands of deceased by means of rope

and tied him to the almond tree. Same is the statement of

accused No.4. It is pertinent to mention that even in their

statements they have not admitted that the deceased was tied

to the trunk of the almond tree by wrapping the rope around

his body and trunk of the tree.

17. We may now, consider the evidence of eye

witnesses. Dipak (PW-3) son of the deceased is the informant.

He has stated that on the day of occurrence at about 4.00 a.m.

while he was asleep, he heard alarm raised by his mother

Kamla (PW-4). He therefore, came out of the house and saw

that the deceased was tied with rope to an almond tree near

the house of one Bhimrao More. He has stated that accused

Nos.1, 2 and 4 had sticks in their hands and the accused No.3

Panchfula had sandal in her hand. They were assaulting the

deceased with the weapons in their hands. He tried to

intervene but the accused threatened to beat him. He has cr. a. 398.09 and 237.09.odt

further stated that at the request of his mother, he went to the

house of Haridas (PW-6) to call him. He has further stated

that by the time, he and Haridas came to the spot, the accused

had fled away. He alongwith Haridas went to the police station

and lodged the First Information Report. It is at Exh. 61. Dipak

(PW-3) has admitted in his cross-examination that accused

No.3 Panchafula had lodged report against deceased for

harassing her over a period of three to four years. The action

was initiated against the deceased on number of occasions and

the last such action was three to four months prior to the

incident.

18. He has further stated in his cross examination

that on hearing the alarm of his mother, he woke in bewildered

state and when he came out of the house, he saw his mother

weeping. He has denied the suggestion that when he went

towards the courtyard, he found that his father was lying on

the ground. It is seen that this fact was indeed mentioned in

the First Information Report. The same has been proved to

have been stated by him in his report to the Investigating

Officer. In his evidence before the Court, he has stated that he

saw that his father was tied with rope to an almond tree cr. a. 398.09 and 237.09.odt

located near the house of Bhimrao More. In our opinion, even

if it is assumed that this statement has ring of truth, it fails to

prove the manner in which the deceased was tied to the

almond tree. He has stated that when he returned to the scene

of offence accompanied by Haridas, the accused persons had

by then, fled away. In his evidence, in all fairness, he has

admitted that on the report of the accused No.3-Panchfula the

action was initiated against his father on more than one

occasion. The admissions given by Dipak (PW-3), Kamla

(PW-4) and other witnesses clearly indicate that the deceased

had an evil eye upon accused Panchfula and therefore, he was

after Panchfula. This in our view would explain as to why the

deceased on the given date and time had gone to house of

accused Nos.1 to 3. A perusal of the evidence of Dipak (PW-3)

does not categorically help us to record any finding as to the

manner in which the deceased was tied to the almond tree

with rope. It is not possible on perusal of his evidence to draw

a inferential conclusion that rope was tightly tied around the

neck of the deceased by the accused persons. Dipak (PW-3) has

stated in his First Information Report that when he went to

courtyard, he found that his father was lying on the ground. In

our opinion, on this point, his evidence is of no help. On the cr. a. 398.09 and 237.09.odt

point of beating with the sticks by the accused Nos.1, 2 and 4

and with sandal by accused No.3 we do not find any reason to

disbelieve his evidence.

19. Kamla (PW-4) wife of the deceased has stated that

at about 4.00 a.m. deceased had gone to answer the call of

nature. As he did not come up for a while, she came out of her

house. She heard the commotion. She went ahead and found

that the deceased was tied to an almond tree located in the

courtyard of the house of one Shri Bhimrao More by a nylon

rope. She has stated that accused Nos.1, 2 and 4 were

inflicting the blows on the deceased by means of sticks and the

accused No. 3 with sandal. She has stated that she raised the

alarm and called her son Dipak (PW-3). She sent her son to

call Haridas Bhoyar. She has stated that since her son did not

return for a while, she went towards Nandgaon Khandeshwar,

Police Station. She has further stated that when she returned

back to the scene of offence, she found that deceased was

untied from an almond tree. His hands were still tied and he

was lying on the ground motion less. In her cross examination,

certain omissions, from the statements made before the Police

have been brought on record. The omissions if considered in cr. a. 398.09 and 237.09.odt

proper perspective would show that on some points there are

inconsistencies in her evidence and the evidence of Dipak

(PW-3) and Ramdas (PW-5). However, despite the

inconsistencies, the evidence is sufficient to prove the incident.

The question is whether the evidence is sufficient to prove the

authorship of strangulation to the accused Nos.1, 2 and 4. She

claims to have seen that the deceased was tied to the tree by

means of rope and deceased had sustained 2-3 bleeding

injuries. She has not stated that the deceased was tied to the

trunk of the almond tree in standing position and the rope was

tied around his body. She has also not stated that any part of

the rope was tied around the neck of the deceased.

20. At this stage, to crystallize the issue we may

usefully refer the facts recorded in the spot panchanama. It is

necessary to mention that if the deceased was tied in a

standing position to the trunk of the almond tree with the

nylon rope around his body, there ought to have been evidence

as to who untied him. There ought to have been evidence as

to the manner of tying deceased to trunk of tree in the

standing position with nylon rope. Exh.56 is the spot

panchanama. In the spot panchanama, the situation prevailing cr. a. 398.09 and 237.09.odt

on the spot was recorded. In this panchanama, it was recorded

that the rope was loosely tied to the trunk of the almond tree

and both hands of the deceased were also tied with the same

rope. It was recorded in the panchanama that from the loosely

tied end of the rope to the almond tree and the tied hands of

the deceased, the length of the rope was three feet. The

inquest panchanam was drawn on the same date between 7.00

am and 7.45 am. The inquest panchama records the condition

of the dead body. It was found lying under the almond tree and

nylon rope was found tied to the almond tree. The hands of

the deceased were found tied with the nylon rope. It is to be

noted that if the deceased was tied to the trunk of the almond

tree in the standing position with the nylon rope around his

body then there ought to have been evidence as to who untied

the deceased from the trunk of the almond tree. The evidence

of important eye witnesses Dipak (PW-3) and Kamla (PW-4)

fall short to record any positive finding on this point. So, it is

not possible on the basis of evidence of Dipak (PW-3) and

Kamla (PW-4) to hold that the deceased was tied in a standing

position to the trunk of the almond tree with the nylon rope

around his body. It is also not possible to reach a conclusion

that rope was tied around his neck to the trunk of the tree. The cr. a. 398.09 and 237.09.odt

evidence at the most can prove that his both hands were tied

with the nylon rope and one end of the rope was loosely tied

to the trunk of the almond tree.

21. Ramdas (PW-5) and Wasudeo (PW-7) are residents of

the same locality. Ramdas (PW-5) has stated that on the date

of incident he woke up early in the morning. At that time he

heard the outside commotion. He saw that number of persons

had gathered on the spot. He has stated that Kamla (PW-4)

was crying for help. He therefore, went to the house of

Wasudeo and informed about it to Wasudeo (PW-7). They

both came on the scene of the occurrence and saw that the

deceased was tied to the almond tree and the accused were

inflicting blows on his body with their weapons. Haridas

(PW-6) has deposed in unison with Dipak (PW-3). He has

stated that Dipak (PW-3) son of deceased came to his house

and informed him about the incident. He has stated that he

therefore, accompanied the informant to the scene of

occurrence and found that the deceased was tied to the

almond tree and the accused were beating him. In his cross

examination, sufficient material has been brought on record to

indicate that in the past, he and his wife stood surety to the cr. a. 398.09 and 237.09.odt

deceased. All the witnesses have admitted the continuous eve-

teasing of accused No.3 Panchfula by the deceased. It was

suggested to the witnesses that the deceased was in the habit

of eve-teasing the women from locality and therefore, number

of women had complained about it and even had taken out a

procession in protest. The witnesses have denied the

suggestion. However, the fact remains that the deceased was

after accused No.3 Panchafula. He had indulged in molesting

her modesty. On the date of the incident, it has been proved

that he had entered the house of the accused Nos.1 to 3 with

this intention.

22. Learned Additional Sessions Judge has accepted

the evidence of all these witnesses. On the point of credibility

of the witnesses or rather their satisfying the test of

truthfulness, we have no different opinion. However, in our

opinion, this evidence is not sufficient to prove that the

deceased was tied in a standing positing to the trunk of the

almond tree, with the nylon rope around his body. The

evidence is not sufficient to prove that the rope was tied

around the neck of the deceased to the almond tree and which

led to strangulation. It is to be noted that unless and until the cr. a. 398.09 and 237.09.odt

authorship of the strangulation is proved beyond reasonable

doubt and attributed to the accused Nos.1 to 4, they could not

be held guilty either of the offence of murder under Section

302 of the Indian Penal Code or the lesser offence under

Section 304 Part II of the Indian Penal Code.

23. In order to satisfy ourselves, we have perused the

relevant part of the judgment and order passed by learned

Additional Sessions Judge. In para No.17 of the judgment

learned Additional Sessions Judge has observed that the

authorship of tying the deceased to an almond tree can be

fastened to accused Nos.1 to 4 because the witnesses have

consistently deposed that accused assaulted the deceased when

he was tied to an almond tree. A perusal of the judgment

would further reveal that based on the evidence of the eye

witnesses and the circumstantial evidence inference was drawn

by learned trial Judge that the death took place due to

strangulation by the accused Nos.1 and 4.

24. On perusal of the evidence minutely, we do not

agree with this conclusion arrived at by learned Additional

Sessions Judge. In the absence of the direct evidence to accept

the case of the prosecution, the inference would have to be cr. a. 398.09 and 237.09.odt

drawn. In the case in hand to prove the guilt of the accused

Nos.1 to 4 under Section 302 of the Indian Penal Code, it

would not be justifiable, in the teeth of the evidence, to draw

such an inference. Therefore, in our opinion, the authorship of

strangulation of the deceased cannot be attributed to the

accused Nos.1 to 4. Asphyxia due to strangulation is the cause

of death. The injuries sustained by the deceased proved to

have been caused by the sticks were not found by Medical

Officer to be the cause of death. Unless and until the

authorship of strangulation is attributed to the accused, they

cannot be held guilty of a charge under Section 302 of the

Indian Penal Code or lesser offence of the same under Section

304 of the part I and II of the Indian Penal Code. We therefore,

conclude that on the point of incident, the evidence of eye

witnesses is credible and acceptable. The same evidence, in our

opinion, is sufficient to prove the assault on the deceased by

the accused Nos.1 to 4 with the weapons possessed by them.

The accused Nos.1 to 4 cannot be held guilty of a charge under

Section 302 of the Indian Penal Code and also of the offence

punishable under Section 304 part I and II.

25. In this context, we may now consider the cr. a. 398.09 and 237.09.odt

evidence of the Medical Officer. The answers given by the

Medical Officer to the two questions therefore, substantiate the

defence of the accused. Learned Judge has found the accused

Nos.2 and 3 guilty of the offence punishable under Section 325

of the Indian Penal Code. Learned Sessions Judge found the

accused Nos.1 and 4 guilty of the offence punishable under

Section 304 part II of the Indian Penal Code. In the backdrop

of the above conclusion, it is not possible to maintain the

conviction of the accused Nos.1 and 4 for the offence

punishable under Section 304 part II of the Indian Penal Code.

If this is so, then the position of the accused Nos.1 and 4 would

be at par with the accused Nos.2 and 3. We therefore, conclude

that the offence proved against the appellant Nos.1 and 4

would be under Section 325 of the Indian Penal Code. The

accused Nos.2 and 3 have been sentenced to suffer rigorous

imprisonment of one year. The State has challenged the

judgment of their acquittal under Section 302 of Indian Penal

Code. This indicates that State is aggrieved by their conviction

under Section 325 read with Section 34 of the Indian Penal

Code and sentence awarded to them. It would therefore be,

necessary to consider the quantum of sentence to be awarded

to the accused Nos.1 to 4.

cr. a. 398.09 and 237.09.odt

26. Before proceeding to deal with the issue of

quantum of sentence, it would be necessary to consider the

applicability of the reported decisions relied upon by learned

APP for the State and learned Advocate for the appellants in

support of their respective submissions. Learned APP relied

upon decisions in the cases of Hate Singh Bhagat Singh Vs.

State of Madhya Bharat reported in AIR 1953 SC 468 and

State of Uttar Pradesh Vs. Lakhmi (1998) 4 SCC 336 and

submitted that the accused Nos.1 and 4 have admitted in their

313 of the Cr.P.C. statement that they had tied the hands of the

deceased with nylon rope and the deceased was tied to the

almond tree. Learned APP further submitted that this

statement of the accused Nos.1 and 4 in their 313 Cr.P.C.

statement has to be taken into consideration and based on the

same a conclusion is required to be drawn that the accused

persons strangulated the deceased with nylon rope and as such

they would be guilty of the offence punishable under Section

302 of the Indian Penal Code. In the case of Hate Singh

Bhagat Singh Vs. State of Madhya Bharat (supra) it is held

that the statements of the accused are among the most

important matters to be considered at a trial. The version of

the accused deserves acceptance, if it is reasonable and accords cr. a. 398.09 and 237.09.odt

with probability. In the case of State of Uttar Pradesh Vs.

Lakhmi (supra), it is held that statement of accused under

Section 313 of the Cr.P.C. cannot altogether be ignored merely

because they are advanced as a defence strategy. The Court

has to give weight to the answers given by the accused. It is

held that they cannot be made sole basis for arriving at a

finding of guilt of the accused.

relying upon the decisions in the cases of Mohan Singh-

Appellant Vs. Prem Singh and another- Respondents reported

in AIR 2002 SC 3582 and Sanatan Naskar and Another Vs.

State of West Bengal reported in 2010 CriLJ 3871 submitted

that the statement of the accused recorded under Section 313

of the Cr.P.C. can be taken into consideration. However, the

same cannot be accepted as a substantive piece of evidence. In

the case of Mohan Singh Vs. Prem Singh and another, it is held

that statement of the accused under Section 313 Cr.P.C. is not a

substantive piece of evidence. It can be used for appreciating

the evidence led by the prosecution to accept or reject it. In

the case of Sanatan Naskar and another Vs. State of West

Bengal (supra), it is held that statement of the accused can be cr. a. 398.09 and 237.09.odt

used to test the veracity of the exculpatory of the admission, if

any, made by the accused. It is held that the conviction of the

accused cannot be based merely on the statement made under

Section 313 of the Cr.P.C., as it cannot be regarded as a

substantive piece of evidence.

28. We have already observed that on the basis of the

evidence adduced by the prosecution, it is not possible to reach

a conclusion that the accused persons strangulated the

deceased by means of nylon rope. The evidence on record is

silent about the mood and manner of tying the deceased with

the rope to almond tree. The evidence is not sufficient to prove

that the deceased was tied to almond tree in a standing

position with the nylon rope. Therefore, in our view, the

statement made by the accused Nos.1 and 4 in their 313 of the

Cr.P.C. statement is not sufficient to draw even an inference of

the manner of tying the deceased with the nylon rope to the

almond tree. Even the same cannot be used as a substantive

piece of evidence. We are therefore, not prepared to accept the

submissions advanced by learned APP relying upon the

judgment cited (supra).

29. This would take us to the quantum of sentence to cr. a. 398.09 and 237.09.odt

be awarded. Learned Additional Sessions Judge has convicted

the accused Nos.2 and 3 for the offence punishable under

Section 325 read with Section 34 of the Indian Penal Code and

sentenced them to suffer rigorous imprisonment for one year

and to pay a fine of Rs.1,000/- each. The reasons have been

recorded for awarding the sentence. The accused Nos.1 and 4

have been convicted for the offence punishable under Section

304 part-II and Section 342 read with Section 34 of the Indian

Penal Code and awarded substantive sentence of seven years

and three months respectively. On consideration of the

evidence on record, we are not convinced to hold the

appellants guilty for the offence punishable under Section 304

Part II read with Section 34 of the Indian Penal Code.

According to us, on the basis of the evidence the offence made

out against the accused Nos.1 and 4 would be under Section

325 read with Section 34 of the Indian Penal Code. In this

factual situation, the question of awarding the sentence needs

consideration.

30. Learned Advocate for the accused submitted that

accused No.4 is 90 years old. He has submitted that accused

No.1 is about 62 years of old. Learned Advocate submitted cr. a. 398.09 and 237.09.odt

that considering their age, the lenient view is required to be

taken. After given thoughtful consideration to the nature of

the offence and the circumstances in which the incident

occurred and the age of the accused Nos.1 and 4 in our

opinion, the sentence of imprisonment similar to the one

awarded to the accused Nos.2 and 3 would be required to be

awarded to the accused Nos.1 and 4.

31. In our opinion, the sentence of imprisonment

similar to the one awarded to the accused Nos.2 and 3, if

awarded to the accused Nos.1 and 4 would serve the ends of

justice. On re-appreciation of the evidence, we are not

convinced with the submissions advanced by learned APP for

the State either for modification or enhancement of the

sentence awarded to the accused Nos.2 and 3.

32. In view of this, we proceed to pass the following

order:-

ORDER

(i) The conviction and sentence awarded to the

accused Nos.2 and 3 by learned Additional Sessions Judge,

Amravati under Section 325 read with Section 34 of the Indian cr. a. 398.09 and 237.09.odt

Penal Code is maintained. Their appeal is dismissed.

(ii) The conviction and sentence awarded to the

accused Nos.1 and 4 for the offence punishable under Section

304 part II read with Section 34 of the Indian Penal Code is set

aside. They are acquitted of the said offence.

(iii) The accused Nos.1 and 4 are convicted for the

offence punishable under Section 325 read with Section 34 of

the Indian Penal Code and sentenced to suffer rigorous

imprisonment for one year and to pay a fine of Rs.1,000/-

each. In default of payment of fine, they shall suffer further

simple imprisonment for one month.

(iv) The conviction and sentence awarded to accused

Nos.1 and 4 for the offence punishable under Section 342 read

with Section 34 of the Indian Penal Code is maintained.

(v) Their substantive sentences on both counts shall

run concurrently. They are entitled to get a set of against this

sentence for the period of their detention during the pendency

of the trial and pendency of the appeal.

33. The Criminal Appeal filed by the State bearing

No.398/2009 stands dismissed.

cr. a. 398.09 and 237.09.odt

34. Both the Criminal Appeals are disposed of

accordingly.

                                           JUDGE                                    JUDGE
    manisha




Signed By:MANISHA ALOK
SHEWALE


Signing Date:08.07.2022 15:38