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2001 DIGILAW 6 (BOM)

Shrawan v. State of Maharashtra

2001-01-09

S.D.GUNDEWAR, S.P.KULKARNI

body2001
JUDGMENT S.P. Kulkarni, J. - This appeal is preferred by the original accused Nos. 1 and 2, who were tried alongwith a third accused for an offence punishable under Section 302 read with Sections 147, 148 and 149 of Indian Penal Code. The third accused was acquitted by the trial Court. The present two appellants were convicted and they were sentenced to undergo imprisonment for life with a fine of Rs. 1.000/- by each and in default a further sentence of imprisonment for six months by each one of the appellants. 2. In this appeal, the learned Advocate appearing for the appellants confined his submission to only one point. According to him excepting the evidence of the eye witness P.W. 1 Damodhar and the medical evidence concerning the certification of the injuries and the post-mortem report, he submitted that the circumstances were clearly suggestive of the fact that though the appellants may have the knowledge of the injuries sustained by the deceased were likely to cause his death, still the evidence on record was suggestive of the fact that an intention to kill must not have been harboured by any of them. He, therefore, confined his submission only to the scrutiny of evidence of P.W. 1 Damodhar and the evidence of the medical witness who examined the injuries and performed the post-mortem examination on the dead body of the deceased. The circumstances which were pointed out as available from the evidence of P.W. 1 Damodhar and P.W. 10 Vatsalabai the very wife of the deceased were that ultimately the quarrel between appellant No.1 and the deceased was referable to the subject of appellant No.2 teasing or insultingly abusing the wife of the deceased. This was an instance referable to some years prior to the incident i.e. about four years. It was further pointed out that one more factor prevailed namely that on account of "Kala" celebration in the village there was again an altercation on this subject between accused No.1 Shrawan and the deceased. It was then pointed out that the appellant No.2 Dashrath was required on account of this to leave the village Satefal. The abusing or teasing was referred to appellant No. -2 Dashrath, Appellant No.1 Shrawan seems to be his social associate. On this background, the incident was alleged to have taken place. It was then pointed out that the appellant No.2 Dashrath was required on account of this to leave the village Satefal. The abusing or teasing was referred to appellant No. -2 Dashrath, Appellant No.1 Shrawan seems to be his social associate. On this background, the incident was alleged to have taken place. When the learned Advocate Shri Daga points out that the deceased was riding a cycle and by a road leading from Hinganghat to Satefal, the incident had taken place near the nullah, the deceased had already entrusted a cart-man to carry the wheat bags purchased by him. On way, he was round about by the cart sometimes behind and sometimes ahead of it. When on the one side was the cart driven by the cart-man P.W. 1 Damodhar the deceased was on the other side of the nullah with the cycle when he was surrounded by the two appellants, acquitted accused Tukaram and two unknown persons armed with sticks. They assaulted him with the sticks. Totally there were three injuries sustained by the deceased, one on the nose other on the temporal region and the third on the leg. The injury on the temporal region turned out to be a laceration from outside and internally causing a crack to the skull and consequential haemorrhage near the outer cover of the brain. The cause of injury certified by the doctor was neurogenic shock together with the fracture to the nasal bone and skull were mentioned as internal damages in relation to the injuries on the side of the head and also on the nose. It is on this background, what was pointed out from the evidence of Damodhar and Vatsalabai that the appellants had made no effort to cause any harm to the witness Damodhar, though they had in some challenging language spoken to him but had allowed Damodhar to run away from the spot leaving the cart and bullocks there only. Damodhar went to the village and informed the event to the wife of the deceased. The wife of the deceased also did not suspect anything of the nature so as to immediately rush to the spot. She went near the spot on the next day when she found her husband had not returned home hence she went to the spot and found him dead there. The wife of the deceased also did not suspect anything of the nature so as to immediately rush to the spot. She went near the spot on the next day when she found her husband had not returned home hence she went to the spot and found him dead there. The miscreants had come across the passersby and then they had showed a conduct of the type that besides assaulting, to teach him, they must not have done, anything serious even though there was exchange of tobacco which they chewed, and by act of omission nothing was disclosed on the part of P.W. 1 Damodhar to indicate that the appellants and any of the other miscreants had a sure intention to kill the deceased. It was, therefore, finally submitted that the very happening, namely teasing and abusing which was the origin for this trouble was itself not acceptable of creating in the minds of the miscreants any intention to kill the deceased and their conduct, as described by P.W. 1 Damodhar on the spot was further indicative of the fact that even the miscreants could not be described to be surely harbouring an intention to kill when they beat the deceased allowed Damodhar to safely go away that they further casually lingered at the spot even informed passers by, chewed tobacco with them and then went away therefrom. 3. It is with these submissions the learned Advocate confined the challenge in this appeal only to the subject of proper application of penal section to the facts established during the trial and according to him though on the strength of the medical evidence it can be inferred that the accused had the knowledge that with the stick blows there was likelihood of head of the deceased breaking and his suffering from an injury of any type would be sufficient in the ordinary course of nature to cause death, still the intention to kill was neither proved nor available for inference against the appellants and therefore, according to the learned Advocate, the proper section which should be applied is the one i.e. Part II of Section 304 of Indian Penal Code. 4. 4. On behalf of the State, it was urged that since the injuries were sufficient in the ordinary course of nature to cause death the learned trial Judge was justified in punishing the appellants under Section 302 read with Sections 147, 148 and 149 of Indian Penal Code. However, on the subject of the circumstances which were available from the medical evidence as well as the evidence of P.W. 1 Damodhar and P.W. 10 Vatsalabai, the learned A.P.P. had obviously to confine the submission to what state of evidence on the record is. 5. In the midst of these submissions, we went through the evidence of P.W. 1 Damodhar and the evidence of the doctor so also the evidence of P.W. 10 Vatsalabai to examine if the circumstances are suggestive of the appellants lacking an intention to kill the deceased and, therefore, the case could be inferred to be such as was coverable under Part II of Section 304 of Indian Penal Code. 6. P.W. 1 Damodhar was the cart-man and he gave the first Information report to the police which is at Ex. 19. The report was given on 1-6-1992. The incident took place at 5:00 p.m. and the report was given within a short time of 2 1/2 hours. According to Damodhar, who is aged 40 years, his relations with the deceased were cordial. Though at times the deceased used to tell him the work of carrying the grains by his bullock cart and accordingly at 5.00 p.m. when the two bags of wheat were entrusted by the deceased at Hinganghat for they being carried to their village Satefal, he was going to Satefal by the road via village Kumbhi. The deceased who had asked him to go ahead followed by him on bicycle and having crossed him said that he was going a little ahead. While the bullock cart was on the one side of the nullah, which was known as Bhakraya nullah and the deceased was on the other side of the nullah with his bicycle. Damodhar states that five persons came from behind the cart, out of them accused No.1 Shrawan and accused No.2 Dashrath were identified by him whereas three other miscreants were unknown. All these five persons were possessing sticks. They rushed towards the deceased and assaulted the deceased with sticks. Damodhar states that five persons came from behind the cart, out of them accused No.1 Shrawan and accused No.2 Dashrath were identified by him whereas three other miscreants were unknown. All these five persons were possessing sticks. They rushed towards the deceased and assaulted the deceased with sticks. Out of them two unknown persons returned to this cart-man and spoke to this witness in challenging language. When the witness told that he was not in a position to accept the challenge, as the witness was frightened, he abandoned the bullock cart and ran away towards the village. He informed about the incident to the persons who were returning to village Satefal from Hinganghat that the deceased was killed. He also went to the house of tile deceased and informed his wife and the family members of the deceased about the incident. He proved his report to the police which is at Ex. 19. His cross examination indicates that though not examined, he was cited as a witness for prosecution in two murder cases. He admitted that he was on visiting terms to the house of the deceased and that there were number of prohibition cases pending against the deceased who was indulging in distilling liquor. The deceased was often engaging him on deceased's bullock cart, in times of need. On the date of the incident the bullock cart that was used was of the deceased. He also admitted the incident which took place about four years prior to the recording of his evidence that accused Dashrath had teased the wife of the deceased. No action was taken against Dashrath. After that incident the appellant No.2 Dashrath had left the village and went to reside in Hinganghat. The day of the incident was the Bazar day of Hinganghat. Most of the people in the vicinity of Hinganghat used to go to bazar at Hinganghat and return in the evening time. One Pandurang Balpande and the son of one Nala Warthi had also passed by the way from his back on bicycles. They were restrained by accused Nos. 1 to 3 and the two other unknown miscreants. When those two persons went towards the cart-man accused Nos. 1 to 3 had told them not to go ahead until the beating to the deceased was completed. Therefore, both those two cyclists stopped on the way. They were restrained by accused Nos. 1 to 3 and the two other unknown miscreants. When those two persons went towards the cart-man accused Nos. 1 to 3 had told them not to go ahead until the beating to the deceased was completed. Therefore, both those two cyclists stopped on the way. Then the appellant No.1 Shrawan and appellant No.2 Dashrath demanded tobacco from the cyclists and started chewing it. The beating was completed when the tobacco was demanded. Those cyclists also witnessed the incident of assault which was said to have lasted for ten to fifteen minutes, as loosely estimated by the witness. The witness could not state how many blows to sticks were dealt by the accused. The witness made a little modification to his earlier version in the examination-in-chief by stating that the deceased was assaulted by stick on his hands, legs and on head by stone. There was no reference to the use of stone in the F.I.R. He could not state how many times there was a hit by the stone. The width of the nullah, according to him, was 25 to 30 feet which was the distance from which the witness had seen the incident. The two unknown miscreants went near him and threatened him (account of threat is not mentioned by him) and, therefore, the witness said that he ran away. When he thus ran away, the two cyclists were still on the road. Rest of the evidence of this witn6ss is not that relevant as it refers to the process of identification of accused No.3 (acquitted) and the rest of the miscreants and there were suggestions regarding the deceased having number of enemies because of illicit distilling of liquor and the witness having not witnessed any incident of the type that was described by him. Those suggestions were denied. 7. Having regard to the evidence of P.W. 1 Damodhar, indeed there appears to be suggestions through the version of P.W. 1 to indicate that the conduct of the appellants or other miscreants was not of the type as would be consistent with those who committed murder and in the normal course run away from the spot so that they should not be capable of being traced out. As a matter of fact, it was the day of weekly bazar, on the road there was every likelihood of those going to bazar from village Satefal and returning to the village, the time was 5.00 p.m. with a day light the appellants or other miscreants do not seem to have harmed P.W. 1 Damodhar. The evidence of P.W. 1 Damodhar does not appear to suffer from any artificial interest nurtured by him in relation to the deceased in describing the incident. As a matter of fact, the conduct on the part of miscreants was suggestive of the fact that except causing some beating with the sticks to the deceased, they had no other intention and, therefore, they were taking precautions commensurate with what must be in their minds, namely in stopping the passers by and informing them not to go ahead till, the beating was over, and having completed the beating to come back and started chewing the tobacco with them as if they had not done the act of killing a person. In the event, they were not conscious to know that the deceased who was lying there had in fact died. Their conduct was further suggestive of the fact that perhaps the appellants and other miscreants must not be conscious as to what had happened to the deceased who was lying injured with his bicycle and that was all on the road leading to village Satefal. 8. The evidence of P.W. 10 Vatsala was also indicative of the fact that inspite of Damodhar telling her about the incident, Vatsala, as the wife of the deceased, does not prepare herself to rush to the spot to see what had happened to the deceased. Perhaps, Damodhar's version was likely to have not made her ready to immediately rush to the spot though Damodhar seems to refer now in his evidence that the deceased was killed. Such version must not pave been made by him while informing about the incident to Vatsala otherwise Vats ala would not have thought of going to the spot only On the next day morning. 9. The evidence of P.W. 17 Dr. Kakade at Ex. Such version must not pave been made by him while informing about the incident to Vatsala otherwise Vats ala would not have thought of going to the spot only On the next day morning. 9. The evidence of P.W. 17 Dr. Kakade at Ex. 55 proved that the deceased suffered a lacerated wound over ear on right side of the size 1" x 1/2"; another lacerated wound over junction of nose and upper lip of the size 1" x 1/2" and a third lacerated wound over the right leg on lower half of the size 2" x 1" muscle deep. The corresponding internal damage was Haematoma over frontal and temporal region on right side, because of swelling' fracture over frontal region extending to orbital ridge and subarachnoid haemorrhage over the surface of brain. The doctor said that those injuries were sufficient in the ordinary course of nature to cause death and, in our view, the death was actually caused. There is no evidence to connect as to how much time after the incident the deceased breathed his last. 10. No reference to any other material was made before us on either side. If we consider this material, the contentions advanced on behalf of the appellants that they were not indicative of any intention to kill seems to us to be justified from the said material on record. We, therefore, accept the contentions. We visualize the nature of teasing or abusing and consider that its description was not capable of creating or the possibility of creating an intention to kill the deceased and from the conduct of the accused a possibility arises in our mind after referring to the evidence of Damodhar. that the accused were not likely to be conscious regarding what had happened at their instance and that they were not conscious because perhaps they must not have intended to kill. When this was so, it appears that there are grounds to believe that perhaps intention to kill must not have been harboured by them and when this was lacking, in our view, the proper provision which ought to have been attracted by the trial Court was Part II of Section 304 of Indian Penal Code. 11. When this was so, it appears that there are grounds to believe that perhaps intention to kill must not have been harboured by them and when this was lacking, in our view, the proper provision which ought to have been attracted by the trial Court was Part II of Section 304 of Indian Penal Code. 11. From the above discussion, we feel satisfied that the conviction needs to be converted into one from Section 302 of Indian Penal Code to the one under the properly applicable provision of Section 304 Part II of Indian Penal Code. 12. But for this modification neither any further challenge is raised nor we have considered nor it is necessary for us to discuss the rest of the material. There is also no need for us to modify the rest of the order of conviction for the offences punishable under Sections 147 and 148 of Indian Penal Code. 13. We, therefore, partly allow the appeal to the extent indicated above in converting the conviction for the offence punishable under Sections 302/149 of Indian Penal Code to a conviction under Section 304 Part II of Indian Penal Code by setting aside the conviction under Section 302 of Indian Penal Code. 14. We have heard both the sides on the question of the sentence that is warranted because of the above modification to the conviction contended and accepted by us. It was urged that after all when the intention to kill was not there, it was out of some minor shade of life and, therefore, the sentence already undergone by the appellants be ordered to the extent of sentence awardable to them under Section 304 Part II of Indian Penal Code. On behalf of the State, it was urged that having regard to the collection of five persons, the assault that was made on a road, leading to the village and the weapons which were used together with the actual damage that was caused to the deceased in ultimately putting an end to his life was a serious event of life which should not be considered in a manner so as to award only a lighter sentence though under a right penal section. However, both the sides leave the subject of determining the quantum of sentence with the above said submissions on their behalf to this Court. However, both the sides leave the subject of determining the quantum of sentence with the above said submissions on their behalf to this Court. We do feel that though not an intentional one but still the act on the part of the appellants was adequately reckless, irresponsible and rather serious in assaulting the deceased in this way and for such a subject of life. In our view, having regard to the serious aspect of being responsible for an act which put an end to the life of the deceased, we propose to award a sentence of imprisonment of seven years to each of the appellants. by setting aside the life imprisonment awarded to them for the offence punishable under Section 302 of Indian Penal Code. 15. Since the sentences of imprisonment are directed to run concurrently, we see no further reason to deal with that aspect which remains intact and hence we pass the following order. 16. The appeal is partly allowed. The conviction awarded to the appellants for the offence punishable under only Section 302 read with Section 149 of Indian Penal Code is hereby set-aside and instead they are found guilty for committing offences punishable under Sections 147, 148 and Section 304 Part II read with Section 149 of Indian Penal Code. The sentenced which the appellants shall finally suffer should be the sentences of imprisonment awarded for the offences under Sections 147 and 148 of Indian Penal Code and seven years' rigorous imprisonment for the offence punishable under Section 304 Part II read with Section 149 of Indian Penal Code as ordered by us. There is no other modification in the final order recorded by the trial Court. With this order, the present appeal stands disposed of. Appeal allowed partly.