Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 844 (BOM)

Kadar Tolan Bagwan v. State of Maharashtra

2013-04-15

A.V.NIRGUDE, NARESH H.PATIL

body2013
Judgment :- NareshH. Patil, J. 1) These two appeals are preferred against the judgment and order dated 20th October 1999 passed in Sessions Case No.70 of 1998 by the Additional Sessions Judge, Osmanabad. 2) On 19th May 1998 deceased Murgappa was returning from village Hangarga along with complainant Drakshinibai. They had reached hutment area of the village near the field of Chand at 6 to 6.30 p.m. The appellants-accused were present on the spot holding sticks and stones in their hands. The appellants-accused and complainant are related inter se. There was grudge in the mind of the appellants that Murgappa compromised a case filed against one Namdeo. As soon as the deceased reached along with the complainant near the spot, appellant No.1-Kadar asked him as to why he compromised the case with Namdeo and thereafter all the appellants-accused assaulted him by means of sticks and stones on his head, back and hands. The deceased collapsed on the spot and thereafter was taken by the complainant and her mother to Primary Health Centre Jalkot but on the way the deceased breathed his last. The complaint lodged by the complainant is at Exhibit 61. Offence was registered at Crime No.81 of 1998 under sections 147,148,149, 302 of the Indian Penal Code. 3) Police Sub Inspector Andoorkar reached the spot, prepared the inquest panchnama of the dead body of Murgappa (Exhibit 53). Body was sent for post mortem which was conducted by Medical Officer, Primary Health Centre Naldurg. The accused Nos.1 to 4 were arrested on the same day. The Police Sub Inspector seized clothes of the accused No.3 Ismail and accused No.4 Daud. Statements of the witnesses were recorded. Panchnama of the spot was drawn (Exhibit 65). Stone was seized from the spot. Blood mixed soil was also collected. The clothes of the deceased were seized under panchnama (Exhibit 56). Blood sample of the accused was also collected. At the instance of accused No.4 Daud stick was recovered on 24th May 1998. At the instance of accused No.3 Ismail a stick was recovered from the house. The seized articles were sent to the Chemical Analyser. The CA reports are at Exhibits 77 to 83. After completion of investigation charge sheet came to be filed against the appellants on 7th July 1998 which was numbered as Regular Criminal Case No. 110 of 1998 of the Court of the Judicial Magistrate, First Class, Tuljapur. The seized articles were sent to the Chemical Analyser. The CA reports are at Exhibits 77 to 83. After completion of investigation charge sheet came to be filed against the appellants on 7th July 1998 which was numbered as Regular Criminal Case No. 110 of 1998 of the Court of the Judicial Magistrate, First Class, Tuljapur. The case was committed to the Court of Session. Charge was framed against the appellants to which they pleaded not guilty. Their defence was of total denial. 4) There is sole eye witness in this case, who is complainant, daughter of the deceased Murgappa. The complainant Drakshinibai deposed before Court that when she was coming along with deceased father near the field of Chand the accused were present armed with deadly weapons. Accused No.1 Kadar assaulted with stone on the head of Murgappa saying that why he withdrew case of Namdeo. Accused No.3 Ismail and accused No.4 Daud inflicted sticks blows on the head, hands and legs of Murgappa. The witness deposed that accused No.2 Yasin and accused No.5 Nabi also assaulted him by means of stick. Accused No.3 Ismail inflicted stick blow on the hand of the complainant. The deceased sustained bleeding injuries. During that time mother of the complainant had also reached the spot. They both took deceased to home and then he was taken in a jeep to Primary Health Centre Jalkot. The witness further deposed that, 4 to 5 days prior to the incident the accused had quarreled with the deceased. In the cross-examination of this witness she deposed that the accused assaulted the deceased even when he had collapsed. The accused were assaulting deceased aiming the legs and back. They were saying that legs and hands of the deceased should be broken. The accused were giving successive blows on Murgappa, who was rolling on the ground. An omission has been brought in the evidence of this witness to the effect that the statement made regarding accused No.1 inflicting injury on the head of Murgappa with help of stone was not stated before the police. 5) PW 2–Dilip Chanappa Patil was declared hostile. 6) PW 3-Nagnath Mahadeo Patil is related to Murgappa. He has stated that he too was present when the accused assaulted deceased Murgappa. 5) PW 2–Dilip Chanappa Patil was declared hostile. 6) PW 3-Nagnath Mahadeo Patil is related to Murgappa. He has stated that he too was present when the accused assaulted deceased Murgappa. In the cross-examination he deposed that 5 to 6 male members were present in the jeep in which deceased was taken to the Primary Health Centre. An omission is brought in the evidence of this witness to the effect of presence of accused with sticks and stones near the field of Chand and their assault on deceased Murgappa. 7) PW 4 is Namdeo Kamble. This witness had compromised a case with deceased Murgappa. 8) PW 5 Subhash Kore was examined as panch in respect of seizure of clothes of the accused and discovery panchnama in respect of seizure of stick from the accused. 9) PW 6 is Aziz Andoorkar, Police Sub Inspector, who conducted the investigation. He supported the prosecution case, the steps taken during the course of investigation,the seizure of clothes, discovery panchnamas and Chemical Analyzer’s report. 10) The Chemical Analyzer’s report shows that result of group of blood detected on the stone was inconclusive. Rest on Exhibits, 4, 5, 6, 10, 11 and 12 the blood of “B” group was found. 11) The learned counsel appearing for the convicted appellants submitted that this is a case based on appreciation of evidence of sole eye witness who is highly interested. She is daughter of the deceased. There is material omission in her evidence in respect of role played by accused. There was no motive to commit murder of the deceased. There is no evidence of formation of unlawful assembly. The deceased suffered head injury but the prosecution could not establish as to who is the author of this injury. Therefore, benefit must go to the accused. The post mortem report was admitted by the defence. It was submitted that, there was no intention to cause death of the deceased. The counsel further submitted that head injury was not the direct result of the death. The appellants are rustic villagers. They were on bail for last so many years. The order of conviction and sentence requires to be reversed and the appeal preferred by the State deserves to be dismissed. 12) The learned Additional Public Prosecutor submits that presence of the eye witness is natural. She has not exaggerated the incident while deposing before Court. The appellants are rustic villagers. They were on bail for last so many years. The order of conviction and sentence requires to be reversed and the appeal preferred by the State deserves to be dismissed. 12) The learned Additional Public Prosecutor submits that presence of the eye witness is natural. She has not exaggerated the incident while deposing before Court. Merely because she is related to the deceased cannot be a reason to discard her testimony. There was no reason for the witness to involve the accused falsely. The deceased suffered serious head injury coupled with other serious injuries on his person which were caused by the appellants. The deceased was assaulted with deadly weapons, which clearly show the intention of the accused persons. The learned APP further submitted that the State has challenged the acquittal of the accused of an offence under section 302 of the Indian Penal Code. Considering the seriousness and gravity of the injuries suffered by the deceased the intention of the appellants could be very well inferred. A life has lost in the incident for which the appellants are required to be sternly dealt with. 13) We have perused the judgment and the reasoning of the trial Court and considered the submissions advanced by the learned counsel appearing for the parties. 14) We do not find that the eye witness is making out a false case. Her presence is natural on the spot. She reached the spot along with her father. At that time all the appellants were present on the spot with deadly weapons. The appellants started assaulting the deceased asking as to why the deceased compromised the matter with Namdeo. The deceased suffered serious injuries at the hands of the appellants. It was deposed by PW 1 that the accused No.1 Kadar inflicted stone blow on the head of Murgappa. There is omission brought in respect of the said statement in the cross-examination of this witness. In spite of said omission brought on record by the defence the evidentiary value of the eye witness about her presence on the spot is not diminished in any way. 15) The post mortem report has been admitted by the defence. The post mortem notes is at Exhibit 57. In spite of said omission brought on record by the defence the evidentiary value of the eye witness about her presence on the spot is not diminished in any way. 15) The post mortem report has been admitted by the defence. The post mortem notes is at Exhibit 57. According to the Medical Officer following injuries were noticed on the person of deceased:- (1) C.L.W. (contused lacerated wound) over right side parietal temporal area of scalp size 2.1/2” x 1.1/2” x 1.1/2”. (2) C.L.W. on left side forearm middle 1/3rd part vertico transverse size 1/1.2”x1”x 1.1/2”. (3) C.L.W. over left side leg middle 1/3rd part of leg vertico-transverse direction size 2.1/2” x 1.1/2” x 1.1/2”. Fracture of tibia, fibula bone seen and palpable through the wound, blackish dry blood collected around the wound. (4) C.L.W. on right side forearm lateral aspect lower part size 1” x 1/2” x 1/2”. (5) 2 contusion mark over left side mode buttock transverse size 3” x 1/2” and 2” x ½ respectively. (6) Contusion mark over posterior part of right forearm near elbow joint transverse size 2” x 1/2” (7) 3 abrasions on left side back size 3 cm x 1 cm, 2 cm x ½ cm, 2.1/2 x 1 cm respectively. (8) Contusion mark over right side back scapular area vertico transverse size 3” x 1.1/2”. In the opinion of the Medical Officer the cause of death is cardio-respiratory failure due to severe haemorrhage resulted from head injury and multiple bodily injuries. The injury to the head is referred to as CLW over right side parietal temporal area of scalp size 2.1/2” x 1.1/2” x 1.1/2 “. The other injuries on the person of the deceased are on the forearm, legs, buttock and back. The deceased suffered fracture of tibia, fibula bone. 16) The trial Court observed in para 18 of the judgment that only one injury was on the head of the deceased and seven injuries were on the rest of the parts of the body. It was observed that, if the accused really intended to commit murder of the deceased then they would have crushed his vital part or they would have used some more dangerous weapons than sticks and stones. This, according to the learned trial Court, showed that the accused never intended to commit murder of the deceased. It was observed that, if the accused really intended to commit murder of the deceased then they would have crushed his vital part or they would have used some more dangerous weapons than sticks and stones. This, according to the learned trial Court, showed that the accused never intended to commit murder of the deceased. As regards the offence punishable under section 304 of the Indian Penal Code, it was observed that there is no scope for the prosecution because the death of the deceased Murgappa cannot be said to be a culpable homicide because it was not caused by the accused persons with intent to cause his death. It was observed that there was no material to show that accused had intension to cause bodily injury as is likely to cause death of the deceased or with the knowledge that his death will be caused by such act. Therefore, the case will not fall under section 304 of the Indian Penal Code. 17) Culpable homicide is defined in section 299 of the Indian Penal Code which reads as under: “299. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 18) The provisions of Sections 325 and 326 of the Indian Penal Code read as under: “325. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. “326. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. “326. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing, or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 19) Though omission is brought in the evidence of sole eye witness in respect of author of the head injury it is required to be seen that the accused are tried for substantive charges read with section 149 IPC. The unlawful assembly is established and the object of the said assembly was deceased Murgappa. No sooner the deceased reached the spot, the accused started assaulting the deceased with stones and sticks in which the deceased suffered grievous injuries. From the facts of the case and the nature of the head injury it could be said that it was a murderous assault. We do not find clinching evidence in respect of author of the head injury which was caused by hurling stone. Who inflicted that blow may be a question raised by the defence. But in view of the applicability of the provisions of Section 149 of the Indian Penal Code, in the facts of the case, that question may not assume much significance. The question that remains is as to what offence the accused have committed. 20) We find that, deadly weapons were used by the accused in commission of the crime. Therefore, sentence imposed for offence under section 325 of the Indian Penal Code, in the facts of the case, is not sufficient. The question that remains is as to what offence the accused have committed. 20) We find that, deadly weapons were used by the accused in commission of the crime. Therefore, sentence imposed for offence under section 325 of the Indian Penal Code, in the facts of the case, is not sufficient. Considering the evidence brought on record, the appellants-accused are required to be convicted and sentenced for offence under section 326 read with section 149 of the Indian Penal Code. We are not in conformity with the reasons adopted by the trial Court regarding the sentencing aspect of the case. 21) In its entirety we are of the view that though the appellants may not have intended to commit murder of the deceased but they caused grievous injuries to the deceased with the help of deadly weapons. Unfortunately the deceased died due to head injury. It cannot be forgotten that a life is lost on trivial issue of compromising a matter by the deceased. ORDER 22) Criminal Appeal No.57 of 2000 filed by the State is partly allowed. 23) Criminal Appeal No.409 of 1999 filed by the original accused is dismissed. The judgment and order of conviction passed against the appellants by the learned Additional Sessions Judge Osmanabad in Sessions Case No.70 of 1998 on 20th October 1999 stands confirmed. However, the appellants-accused Nos.1 to 5 are sentenced for an offence punishable under section 326 read with section 149 of the Indian Penal Code to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- (one thousand only) each, in default, to suffer rigorous imprisonment for one year. The bail bonds of the appellants stand cancelled. 24) The learned counsel for the appellants-accused prays for time to surrender. Four weeks time is granted to the appellants to surrender to their bail.