Bombay High Court
Somling Ramanna Patrigida vs The State Of Maharahstra on 18 August, 2011
Author: V.M. Kanade
Bench: V. M. Kanade, A.M. Thipsay
1
(APEAL1321.03
WITH
APEAL 1314.03)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1321 OF 2003
1. Somling Ramanna Patrigida, )
Age 35 years, )
)
2. Yallappa Ramanna Patrigida, )
Age 38 years, ig )
)
3. Maruti Ramanna Patrigida, )
Age 45 years, )
)
4. Ramanna Shivningappa Patrigida, )
Age 19 years )
)
All R/o. Jeur Tal. Akkalkot, )... Appellants.
Dist. Solapur )(Orig. accused
Nos. 1,3, 5 and 6)
V/s
The State of Maharahstra )
through Akkalkot South Police )
Station, Akkalkot Dist. Solapur ) ... Respondent.
----
Mr. S.R. Chitnis, Senior Counsel i/b Mr. Sandeep Salunkhe for
Appellants.
Mr. F.R. Shaikh, APP for the State.
----
::: Downloaded on - 09/06/2013 17:39:22 :::
2
(APEAL1321.03
WITH
APEAL 1314.03)
WITH
CRIMINAL APPEAL NO.1314 OF 2003
1. Shivnagappa Ramanna Patrigida, )
Age 48 years, )
)
2. Bhojraya Ramanna Patrigida, )
Age 46 years, )
)
3. Deelip Shivningappa Patrigida,
ig )
Age 22 years, )
)
4. Daulappa Maruti Patrigida, )
Age 21 years. )
)... Appellants
All R/o. Jeur Tal. Akkalkot, Dist. Solapur,)(Org.Accused Nos.
2, 4, 9 and 10)
V/s
The State of Maharashtra )
through Akkalkot Sough Police )
Station, Akkalkot, Dist. Solapur ) ...Respondent
----
Mr. A.P. Mundargi, Senior Counsel i/b Mr. Sandeep Salunkhe
for Appellants.
Mr. F.R. Shaikh, APP for the State.
----
CORAM: V. M. KANADE &
A.M. THIPSAY, JJ.
DATE : 18th August, 2011
::: Downloaded on - 09/06/2013 17:39:22 :::
3
(APEAL1321.03
WITH
APEAL 1314.03)
ORAL JUDGMENT: (Per V.M. Kanade, J.)
1. Heard the learned Senior Counsel appearing on behalf of the appellants in both these appeals and the learned APP appearing on behalf of the State.
2. Both these appeals can be disposed of by a common judgment since both these appeals are arising out of the judgment by which the appellants have been convicted by the Sessions Court.
3. The appellants in Criminal Appeal No.1314 of 2003 are original accused Nos. 2, 4, 9 and 10 and the appellants in Criminal Appeal No.1321 of 2003 are original accused Nos.
1, 3, 5 and 6. The appellants shall be hereinafter referred to as "original accused".
4. The original accused/appellants are challenging the judgment and order passed by the 4th Additional Sessions Judge, Solapur who, by his judgment and order dated ::: Downloaded on - 09/06/2013 17:39:22 ::: 4 (APEAL1321.03 WITH APEAL 1314.03) 3/10/2003, was pleased to convict the appellants for the offence punishable under section 302 read with section 149 of the Indian Penal Code and they were sentenced to suffer life imprisonment and were directed to pay fine of Rs 1000/-
each and, in default of payment of fine, they were to suffer rigorous imprisonment for six months. They were also convicted for the offence punishable under section 325 read with section 149 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and that they were directed to pay fine of Rs 500/- each and, in default of payment of fine, they were to suffer rigorous imprisonment for two months. They were also convicted for the offence punishable under section 323 read with section 149 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three months and that they were directed to pay fine of Rs 400/- each and, in default of payment of fine, they were directed to suffer rigorous imprisonment for one month. Lastly, they were also convicted for the offence punishable under sections 147 and 148 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ::: Downloaded on - 09/06/2013 17:39:22 ::: 5 (APEAL1321.03 WITH APEAL 1314.03) three months and that they were directed to pay fine of Rs 300/- each and, in default of payment of fine, they were directed to suffer rigorous imprisonment for one month on both the counts. These sentences were directed to run concurrently.
5. Brief facts are as under:-
6. In the present case, prosecution has alleged that all accused had demolished a common boundary wall which is known as Bandh in local parlance and it was demolished on 19/4/2002 in the morning at 11.00 a.m and they had threatened P.W.6 - Remesh that they were going to construct a bungalow on the said portion and that they would murder the persons from his family if they obstruct the accused. According to prosecution, P.W.6 was chased away from that site and, later on, in the afternoon, at about 2.00 p.m. to 2.30 p.m., he heard shouts of his uncle Nagappa. When P.W. 3 - Basappa went there, he noticed that all the accused were assaulting Nagappa with lethal ::: Downloaded on - 09/06/2013 17:39:22 ::: 6 (APEAL1321.03 WITH APEAL 1314.03) weapons and the accused No.1 - Somling gave a knife blow to deceased Nagappa and pulled out his intestine and others also assaulted him with swords. The other prosecution witnesses viz P.W.4 and 5 were also assaulted and received injuries. According to prosecution, the injured witnesses, including the deceased Nagappa, were taken to the Civil Hospital where Nagappa was operated.
ig However, he succumbed to the injuries after four days on 24/4/2002. The other injured persons from the complainant's side were also treated by the doctor. FIR, initially, was registered at Sadar Bazar Police Station, Solapur at about 9.30 p.m. and, later on, it was transferred to the Akkalkot South Police Station and was registered as FIR No.26 of 2002 at about 11.55 p.m. A cross complaint which was filed on behalf of the original accused was also registered as CR No.25 of 2002.
7. All the accused were arrested in connection with commission of the said offence. Their blood stained clothes were seized. Discovery of the weapons was made at the instance of accused No.1. Charge-sheet was filed. The ::: Downloaded on - 09/06/2013 17:39:22 ::: 7 (APEAL1321.03 WITH APEAL 1314.03) cross-complaint filed by accused was tried by the Magistrate who was pleased to acquit the accused in the said case i.e the complainant and persons from his family. However, Sessions Court convicted the accused in this case.
8. On the one hand, the version of the prosecution in this case is that the original accused assaulted the complainant, deceased Nagappa and other members of his family with an intention to commit murder and all of them attacked persons from the complainant's family and the incident took place near Bandh and the place where Bandh was demolished by the accused. On the other hand, it is the defence of the accused that the complainant and his family members came near Wasti of the accused and questioned them about demolition of the Bandh and there was an altercation and the accused were assaulted initially by the other side and in self defence they retaliated and, in that free fight, one of the persons from the complainant's side died and six persons from the side of the accused received grievous injuries.
::: Downloaded on - 09/06/2013 17:39:22 ::: 8(APEAL1321.03 WITH APEAL 1314.03)
9. It was submitted by the learned Senior Counsel appearing on behalf of the original accused that genesis of the offence has been suppressed by the prosecution and that no satisfactory explanation has been given by them regarding injuries which were caused to the accused. It was, therefore, submitted that the entire prosecution version was false and could not be relied upon and that this was a fit case where all the accused were liable to be acquitted. It was contended that the prosecution witnesses had made number of improvements in their evidence and omissions and contradictions had been brought on record by the accused which clearly established that the original accused were not the real aggressors in the said incident and that they had only acted in self-defence. Alternatively, it was submitted that there was sudden free fight between the two groups and, therefore, the offence under section 302 was not made out and that the case of the accused would fall under exception 4 to section 300 IPC and, therefore, at the highest, they could be convicted for the offence punishable under section 304, Part-II of the IPC. Our attention was ::: Downloaded on - 09/06/2013 17:39:22 ::: 9 (APEAL1321.03 WITH APEAL 1314.03) invited to the charge framed by the Court, spot panchanama at Exhibit-38 and also to the contradictions and improvements made by the witnesses which established that the prosecution witnesses in their statement before the police had clearly stated that the incident had taken place near the place of residence of the accused. It was then submitted that the prosecution had suppressed the FIR which was registered at their behest at Akkalkot Police Station being C.R. No.25 of 2002. It was also submitted that the defence had brought on record the injury certificates in the cross-examination of the doctor who was examined by the prosecution. It was submitted that the Investigating Officer had deliberately not produced the said Certificates in the examination-in-chief of the said doctor. It was submitted that the prosecution had suppressed the vardi which was sent by Akkalkot Police Station to the Civil Hospital, Solapur where the deceased and other prosecution witnesses were examined. Reliance was placed on the judgments of the Supreme Court in support of the said submission in Lakshmi Singh and others vs. State of Bihar1 and in Babu Ram and 1 (1976) 4 SCC 394 ::: Downloaded on - 09/06/2013 17:39:22 ::: 10 (APEAL1321.03 WITH APEAL 1314.03) others vs. State of Punjab1
10. Mr. Chitnis, the learned Senior Counsel appearing on behalf of accused No.1 also submitted that no reliance could be placed on the recovery of the weapons at the instance of accused No.1 and, therefore, the said recovery could not be used as corroborative piece of evidence in favour of the prosecution. It was submitted that accused No.1 had clearly stated that he had shown his willingness to show the place where weapons were concealed by all the accused. It was submitted that since the authorship of concealment was not restricted to accused No.1 alone, no reliance could be placed on the said recovery under section 27 of the Evidence Act.
Reliance was also placed on the judgment of the Apex Court in Pohalya Motya Valvi vs. State of Maharashtra 2.
11. On the other hand, the learned APP appearing on behalf of the State has taken us through the judgment and order passed by the Trial Court and submitted that the Trial Court 1 (2008) 3 SCC 709 2 (1980) 1 SCC 530 ::: Downloaded on - 09/06/2013 17:39:22 ::: 11 (APEAL1321.03 WITH APEAL 1314.03) has given cogent reasons while convicting the appellants herein for the offence punishable under section 302 read with section 149 of the IPC and under section 325, 323, 147 and 148 of the IPC. He submitted that so far as the site of offence is concenred, the Trial Court, after going through the spot panchanama, had observed that the incident had taken place at four different places.
ig He submitted that the spot panchanama clearly indicated that blood-stains were found at four places, some of which were far away from the residence (Wasti) of the appellants. He submitted that the deceased was stabbed by accused No.1 in the stomach and, as a result of the said stab wound, his intestine had come out and there was perforation of the intestine. He submitted that accused No.1 also assaulted him on the hand with sword and other accused also had assaulted him with sword. He submitted that, therefore, there was clearly a common intention which was shared by all the accused and as members of unlawful assembly with common object, they had assaulted the deceased with an intention to inflict injury which is sufficient in the ordinary course of nature to ::: Downloaded on - 09/06/2013 17:39:22 ::: 12 (APEAL1321.03 WITH APEAL 1314.03) cause death. He relied upon the judgment of the Apex Court in Sikandar Singh and others vs. State of Bihar1 He, therefore, submitted that the appeals filed by the appellants be dismissed.
REASONS
12. The questions which fall for consideration before this Court are (i) whether the prosecution has established that the accused had committed an offence punishable under section 302 read with section 149 of the IPC? (ii) whether the prosecution has failed to establish the genesis of the offence as a result of non-explanation of injuries on the person of the accused and as a result of defence of self-
defence taken by the accused & alternatively whether the case of the accused fell within exception 4 to section 300 IPC and as a result they were entitled to be acquitted? and
(iii) whether the prosecution has established that the other accused had shared the common object of the unlawful assembly or as members of that assembly knew that the murder of the deceased was likely to be committed in 1 (2010) 7 SCC 477 ::: Downloaded on - 09/06/2013 17:39:22 ::: 13 (APEAL1321.03 WITH APEAL 1314.03) prosecution of the common object?
13. Before we consider the rival submissions, it will be necessary to examine the settled legal position in respect of
(a) distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder,
(b) consequence of the prosecution failing to establish the genesis of the offence and the site at which the offence took place and the non-explanation of injuries caused to the accused.
(a) Distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder:-
In order to find out distinction between the two, it is necessary to understand the scheme adopted in the Code in defining the culpable homicide and murder. Culpable homicide is defined in section 299 of the IPC and it is genus, whereas murder is defined in section 300 of the IPC and it is specie. Under section 299 of the IPC, whoever causes death ::: Downloaded on - 09/06/2013 17:39:23 ::: 14 (APEAL1321.03 WITH APEAL 1314.03) with the intention or knowledge specified in that section, commits offence of culpable homicide. However, since culpable homicide is only genus, it includes two forms; one is the graver offence which amounts to "murder" and lesser one which does not amount to murder. It can be seen that, therefore, though the offence of culpable homicide is defined, the said provision does not provide for any punishment for that offence as such and, for the purpose of punishment, the Court has to examine facts and find out whether the offence falls or does not fall under the definition of "murder" under section 300 of the IPC. In view of this scheme, therefore, every act of homicide falls within the definition of culpable homicide in section 299 of the IPC.
Section 300 of the IPC on the one hand mentions that a homicide is murder. However in that section 5 exceptions have been given and these exceptions lay down the circumstances in which the act which causes death is not murder even though it may have been done with the intention or knowledge specified in section 300 of the IPC.
The question of punishment which has to be awarded, ::: Downloaded on - 09/06/2013 17:39:23 ::: 15 (APEAL1321.03 WITH APEAL 1314.03) therefore, is twofold viz (1) what was the intention or knowledge with which the act was done and (2) what were the circumstances in which it was done. If it is established that the offence is culpable homicide but it is of such nature that it does not fall within the definition of "murder" in section 300 of the IPC or even though it does, if it falls under any of the exceptions to that section, the offence is punishable under section 304 of the IPC. Once it is held that offence falls under section 304 of the IPC, then the punishment differs, depending upon whether death is caused with an intention or only with knowledge and, therefore, if the element of intention exists the offence is punishable under Part-I of section 304 of the IPC, otherwise the offence falls under Part-II of section 304. In the former case, punishment may extend to imprisonment for life and in the later case it may extend up to a term of 10 years. The distinction can be very succinctly shown in the following manner:-::: Downloaded on - 09/06/2013 17:39:23 ::: 16
(APEAL1321.03 WITH APEAL 1314.03) Culpable Homicide (Genus) ! (Specie) ! (Specie)
----------------------------------------------------------------
! !
! !
Murder(sec.302 IPC) Not amounting to murder(sec.304 IPC)
! !
! !
(a) with the intention 1. with the intention of of causing death, or causing such bodily injury
(b) with the intention ig as is only likely to cause of causing bodily injury, death, or and the injury intended to be inflicted is 2. with the knowledge that sufficient in the ordinary the act done is only likely to course of nature cause death to cause death, or
(c) with the knowledge that the act done is so OR imminently dangerous, that it must in all probability cause death 3. if that act is done under such circumstances as to AND bring it within any of the exceptions to section 300, If that act is not done under even though it may have such circumstances as been done with such intention to bring it within any of or knowledge as is specified the Exceptions to section in section 300.
300. Note: However, in order to make the offence fall under section 302 both the conditions have to be satisfied before convicting the accused for murder.
::: Downloaded on - 09/06/2013 17:39:23 ::: 17(APEAL1321.03 WITH APEAL 1314.03) So far as the distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder is concerned, the Apex Court in State of Andhra Pradesh vs. Rayavarapu Punnaya and another 1 has very succinctly laid down the guidelines which are to be followed in such case, in para 21 and 22 of its judgment which read as under:-
"21. From the above conspectus it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable 1 AIR 1977 SC 45 ::: Downloaded on - 09/06/2013 17:39:23 ::: 18 (APEAL1321.03 WITH APEAL 1314.03) homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section
300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or third Clause of sec. 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code".
"22. The above are only broad guidelines and not cast-iron imperatives. In most ::: Downloaded on - 09/06/2013 17:39:23 ::: 19 (APEAL1321.03 WITH APEAL 1314.03) cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages."
The Apex Court also had an occasion to consider what the prosecution has to prove to bring the case under section 300 "thirdly" of the IPC. In Virsa Singh vs. State of Punjab1, the Apex Court was called upon to consider whether the said case fell under section 300 "thirdly" of the IPC. In the said case, appellant was tried with five others under section 302 read with section 149, section 324 read with section 149, section 323 read with section 149 of the IPC and the appellant was also individually charged under section 302 of the IPC. The others were acquitted of the same charge by the Trial Court. Two were convicted under sections 326, 324 and 323 read with section 149 of the IPC. In appeal, however, the other accused were acquitted. The Trial Court 1 AIR 1958 SC 465 ::: Downloaded on - 09/06/2013 17:39:23 ::: 20 (APEAL1321.03 WITH APEAL 1314.03) convicted the appellant under section 302 of the IPC and his conviction and sentence were upheld by the High Court.
Facts were that there was only one injury on Khem Singh and both the Courts held that appellant had caused death. It was caused as a result of spear thrust and the doctor who examined Khem Singh while he was still alive, said that it was "a punctured wound 2" x 1/2" transverse in direction o the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal." He also said that "Three coils of intestines were coming out of the wound."
The doctor gave an opinion that injury was sufficient to cause death in the ordinary course of nature. In this context the Apex Court observed as under:-
...but the leave is limited to "the question that on the finding accepted by the Punjab High Court what offence is made out as having been committed by the petitioner."
It was argued in the said case on behalf of the defence that the intention that the section requires must be related, not ::: Downloaded on - 09/06/2013 17:39:23 ::: 21 (APEAL1321.03 WITH APEAL 1314.03) only to the bodily injury inflicted, but also to the clause, "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death". The Apex Court in this context has observed in paras 12 and 13 of its judgment in the said case as under:-
"(12) To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly";
First, it must establish quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is ::: Downloaded on - 09/06/2013 17:39:23 ::: 22 (APEAL1321.03 WITH APEAL 1314.03) sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
"(13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient ::: Downloaded on - 09/06/2013 17:39:23 ::: 23 (APEAL1321.03 WITH APEAL 1314.03) to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."
Ratio of the judgment in Virsa Singh1 (supra) will not apply to the facts of this case because firstly no injuries were caused to accused in the said case. There was no dispute about genesis of the offence and the place where the said incident took place and the question which fell for consideration before the Apex Court was, whether the said case fell under section 300 "thirdly" of the IPC. In this context, therefore, it will have to be examined whether the case of the appellant falls under one of the exceptions to section 300 of the IPC and if it falls under the exceptions to section 300 then, in that case, whether the sentence should be under section 304 Part-I or Part-II.
1 AIR 1958 SC 465 ::: Downloaded on - 09/06/2013 17:39:23 ::: 24 (APEAL1321.03 WITH APEAL 1314.03)
(b) Consequence of the prosecution failing to establish the genesis of the offence and the site at which the offence took place and the non-explanation of injuries caused to the accused.
The second question which now requires to be considered is in respect of consequence of the prosecution failing to establish the genesis of the offence and the site at which the offence took place and the non-explanation of injuries caused to the accused.
The law on this point is quite well settled and the Apex Court in Lakshmi Singh vs. State of Bihar1 has observed after relying on its earlier judgments in Mohar Rai vs. State of Bihar2, Puran Singh vs. State of Punjab3 and in State of Gujarat vs. Bai Fatima 4 that the following consequences would follow:-
(1) that the evidence of prosecution witnesses is untrue;
1 AIR 1976 SC 2263 2 AIR, 1968 SC 1281 3 AIR 1975 SC 1674 4 AIR 1975 SC 1478 ::: Downloaded on - 09/06/2013 17:39:23 ::: 25 (APEAL1321.03 WITH APEAL 1314.03) (2) that the injuries probabilise the plea taken by the appellants;
(3) that the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence;
(4) it makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt;
(5) it does not affect the prosecution case at all where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries;
(6) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(7) that the witnesses who have denied the presence of the injuries on the person of the ::: Downloaded on - 09/06/2013 17:39:23 ::: 26 (APEAL1321.03 WITH APEAL 1314.03) accused are lying on a most material point and therefore their evidence is unreliable;
(8) that in case there is defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The ratio of the judgment in Lakshmi Singh1 (supra) was followed by the Apex Court in Babu Ram and Others vs. Sate of Punjab2 Ingredients of section 149 of the IPC.
14. While considering the nature of liability under section 149 of the Indian Penal Code, the Apex Court in its judgment in Sikandar Singh vs. State of Bihar 3 has observed that section 149 of the Indian Penal Code has two essential ingredients viz (i) commission of an offence by any member of the unlawful assembly & (ii) such offence must be committed in prosecution of the common object of the 1 AIR 1976 SC 2263 2 (2008) 3 SCC 709 3 (2010) 7 SCC 477 ::: Downloaded on - 09/06/2013 17:39:23 ::: 27 (APEAL1321.03 WITH APEAL 1314.03) assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Secondly, "common object" does not require prior concert and a common meeting of mind before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and they act as an assembly to achieve that object. The "common object" of the assembly is to be ascertained from the acts and language of the members and from consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by members of the assembly. The Apex Court in Masalti vs. State of U.P.1 has observed in para 17 of its judgment as under:-
"17...... Section 149 makes it clear that 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 1 AIR 1965 SC 202 ::: Downloaded on - 09/06/2013 17:39:23 ::: 28 (APEAL1321.03 WITH APEAL 1314.03) 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; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by ig every member of the unlawful assembly."
Similarly, the Apex Court in its recent judgment in Sikandar Singh and Others vs. State of Bihar1 has followed the ratio of the judgment in Masalti's case (supra) and has also considered various other judgments and has also followed the earlier judgments of the Apex Court in Mizaji vs. State of U.P.2 and in Pandurang Chandrakant Mhatre vs. State of Maharashtra 3
15. Having examined the present case in the light of the evidence on record, we are of the view that the Trial Court 1 (2010) 7 SCC 477 2 AIR 1959 SC 572 3 (2009) 10 SCC 773 ::: Downloaded on - 09/06/2013 17:39:23 ::: 29 (APEAL1321.03 WITH APEAL 1314.03) has clearly erred in coming to the conclusion that the prosecution had established its case against the original accused/appellants under section 302 read with section 149 of the IPC and the other provisions viz. section 425 read with section 149, section 323 read with section 149, sections 147 and 148 of the IPC. We are of the view that conviction of original accused No.1 - Somling will have to be altered to section 304, Part-I and he will have to be acquitted of the offences punishable under sections 147, 148, 302, 325, 323 read with section 149 of the IPC. The original accused Nos.
2, 3, 5 and 6 will have to be acquitted of the offences punishable under sections 147, 148, 302, 325, 323 read with section 149 of the IPC. They shall, however, be convicted for the offence punishable under section 324 of the IPC. The accused Nos. 4, 9 and 10 will have to be acquitted of all the offences with which they are charged. Following are the reasons.
16. In the present case, the prosecution has examined as many as 12 witnesses. Remesh Choulgi (P.W.6) is a witness ::: Downloaded on - 09/06/2013 17:39:23 ::: 30 (APEAL1321.03 WITH APEAL 1314.03) to the initial incident. Bassappa Chaulgi (P.W.3), Shrimant Chaulgi (P.W.4) and Basanna Kapse (P.W.5) have been examined as eye witnesses to the said incident. Dr. Avinash Chorpade (P.W.7) is Medical Officer who examined injured persons. Dr. Jitendera Tulshiram Sankpal (P.W.8) has examined and operated the deceased Nagappa. Dr. Subhashchandra Sardar ig (P.W.9) is the witness who conducted autopsy and brought on record the postmortem notes. Avanna Tukmali (P.W.1) is the panch witness in respect of recovery panchanama at Exhibit-35. Basvaraj Nawale (P.W.2) is an interpreter and Rashid Banewale (P.W.
10) is Police Constable who carried the moddemal articles to C.A. Vishnu Bhagwan Jadhav (P.W.11) is Police Constable who carried blood samples to C.A. Lastly, Pradip Babar (P.W.12) has been examined as Investigating Officer.
17. The evidence of Dr. Jitendera Tulshiram Sankpal (P.W.8) reveals that he examined Nagappa Choulgi on 19.4.2002 at 5.45 P.M. He noticed the following injuries:-
::: Downloaded on - 09/06/2013 17:39:23 ::: 31(APEAL1321.03 WITH APEAL 1314.03) "i) A stab wound 13 x 6 cm. Peritoneal cavity deep, reverse 'S' shape, extending from epigastrium to left hypochondrium up to 1 cm above umbilcous. Evidence of intestinal coils with mesentry - protruding outside. Three perforation of the intestine 1 x 1 cm., 1 x 1 cm., 5 x 6 cm., so seen.
ii) Incised wound, right forearm on the dorsal aspect elipicle in shape, 8 x 4 cm.
Iii) Nasal bleeding with clots in the nose.
iv) C.L.W over forehead above right eyebrow, 2.5 x 1 cm."
He has stated that, thereafter, he performed the operation and that the injuries were grievous in nature and injury No.1 was sufficient to cause death of the person in the ordinary course and injury Nos. 1 to 3 were possible by article 5 i.e knife which was shown to him.
Similarly, Dr. Subhaschandra Sardar (P.W.9) who conducted autopsy has given cause of death as septeimeic shock due to peritonitus secondary to stab injury to ::: Downloaded on - 09/06/2013 17:39:23 ::: 32 (APEAL1321.03 WITH APEAL 1314.03) intestine, myocardial infraction. He has further stated that blood clot in pulmorre artrary was due to stab injury and that the patient had died due to stab injury.
The evidence of Bassappa Chaulgi (P.W.3), Shrimant Chaulgi (P.W.4) and Basanna Kapse (P.W.5) regarding injury given by accused No.1 - Somling is corroborated by the medical evidence and, therefore, it has been established by the prosecution that the death of Nagappa Chaulgi was homicidal.
18. In our view, from the evidence which has come on record, it is crystal clear that the prosecution has made every attempt to show that actual incident of assault took place near the boundary of the land between the accused and the complainant near Bandh. The version of the prosecution can be seen from the evidence of P.W.6 -
Remesh Choulgi who has stated that while he was travelling on his motor cycle, he noticed that the accused had demolished the Bandh and had flattened it with the help of tractor and when they were confronted, he was told that ::: Downloaded on - 09/06/2013 17:39:23 ::: 33 (APEAL1321.03 WITH APEAL 1314.03) they intended to construct the bungalow at that site and when he protested they chased him with weapons and threatened him with dire consequences and said that if any attempt was made to prevent them, they would be finished.
This witness, however, has not seen the subsequent incident which took place at about 2.00 p.m. to 2.30 p.m.
19. P.W.3 - Bassappa is a witness examined by the prosecution in respect of the second incident and he states that he heard some commotion near the site and when he went there, all the accused assaulted them and accused No.1 gave a knife blow on the stomach of deceased Nagappa. P.W. 5 - Basanna Kapse and P.W. 6 - Remesh Choulgi are examined as eye witnesses to the said incident.
20. Prosecution, therefore, has tried to prove that the accused with an intention to commit murder, assaulted the complainant and his family members with lethal weapons near the site where the Bandh was situated and at which place the first incident had taken place in the morning at ::: Downloaded on - 09/06/2013 17:39:23 ::: 34 (APEAL1321.03 WITH APEAL 1314.03) 11 O'clock. However, as rightly argued by the learned Senior Counsel appearing on behalf of the appellants, the record clearly indicates that the incident between 2.00 p.m. and 2.30 p.m. took place near the residence (Wasti) of accused No.1. The Court while framing the charge itself has stated as under:-
"
That, you all on 19th April, 2002 at about 2.30 p.m or thereabout, in front of you accused No.1's Wasti, situated within the limits of village Jeur, Tal. Akkalkot, Dist.
Solapur, were members of an unlawful assembly and in prosecution of common object of such assembly, to wit, to commit murder of Nagappa Irappa Chougli and to cause hurt to Shrimant Choulgi and Basappa Choulgi, committed the offence of rioting and that you thereby committed an offence punishable under section 147 of I.P. Code and within my cognizance.
The rest of the charges also referred to the same day, time and place. Secondly, the spot panchanama at Exhibit 38 ::: Downloaded on - 09/06/2013 17:39:23 ::: 35 (APEAL1321.03 WITH APEAL 1314.03) clearly mentions that the place of offence is near the residence (Wasti) of Somling. It is also mentioned in the spot panchanama that, at the said place, chappals, caps and stones were scattered at various places and there were blood-stains at various places from the site. Similarly , P.W. 4 - Shrimant Chaulgi was confronted with his police statement that in his deposition he had deposed that the incident had taken place in front of Wasti of Somling -
accused No.1. The said contradiction is proved at Exhibit-80 before the Court. However, P.W. 4 has has stated that dispute between the two parties was going on near the common Bandh.
21. All this evidence clearly shows that deliberate attempt has been made by the prosecution to shift the place of incident from the side where it actually took place i.e near Wasti of Somling to the Bandh which is a boundary between the two lands of the opposite parties. This appears to have been done to show that the accused were real aggressors and to bring the case within four corners of section 149 read ::: Downloaded on - 09/06/2013 17:39:23 ::: 36 (APEAL1321.03 WITH APEAL 1314.03) with section 302. However, version of the defence appears to be more probable that, in fact, the complainant and other witnesses and relatives of the deceased had gone near the residence of accused No.1 Somling, possibly to question the action of the accused regarding demolition of the Bandh in the morning at 11.00 a.m and there was no reason for the accused to come near the Bandh in the afternoon at 2.30 p.m nor was there any reason for Nagappa to be there at the side of the Bandh at about 2.30 p.m. P.W. 3, 4, and 5 have stated that after they heard noise at the site, they rushed there and they saw the accused assaulting Nagappa and, thereafter, they were also assaulted with swords by other accused. This fact is further strengthened from the other circumstances which have come on record. It has come on record that some of the accused were also injured in the incident. The prosecution did not produce the injury certificates of the accused on record and it was only when the doctor was cross-examined by the Counsel for the defence and xerox copies of the certificates were shown to P.W. 7 - Dr. Avinash Chorpade, he admitted that he had ::: Downloaded on - 09/06/2013 17:39:23 ::: 37 (APEAL1321.03 WITH APEAL 1314.03) examined Yalappa Patrigida, Shivningappa Patrigida, Maruti Patrigida, Somling Patrigida and Vithabai Patrigida and that he had noted the injuries of those patients. He also stated that he has original record and he had issued the certificates. He tallied xerox copies shown to him alongwith originals which were brought by him. He also admitted that he had signed those certificates and that contents were true and correct and only thereafter all those certificates at Exhibits 53 to 57 were brought on record. Perusal of those Certificates indicates that Somling had received injury on the left parietal region i.e on the head and the injury was 4 cms long and it was sutured wound. Similarly, there was another sutured wound and it was 3 cms. long on his finger and there was contusion on his arm. Then, so far as Yalappa Patrigida is concerned, he had a wound of 4 cms long on the vault of the skull and it was shown to be a simple injury. Similarly, there was contusion of 2 x 2 cm on the left palm and contusion of 6 x 3 cm on the back scapular region. So far as the accused Maruti Patrigida is concerned, there was contusion of 4 x 4 cms on the forearm and tenderness in the ::: Downloaded on - 09/06/2013 17:39:23 ::: 38 (APEAL1321.03 WITH APEAL 1314.03) abdomen. Both these injuries were shown as simple. So far as Shivningappa Patrigida is concerned, there were two sutured wounds; one was 2 cms long on the fore-finger and second wound was 4 cms long on the parietal region.
22. So far as nature of injuries is concerned, initially, the first injury on the person of Shivningappa Patrigida which is 2 cms. long sutured wound is shown as "simple". It was scored off and then it is mentioned that "cannot be commented" and the second injury which is 4 cms long sutured wound is shown to be simple injury after cancelling the word "cannot be commented". Vithabai Patrigida also was examined and there were three simple injuries on her person viz. tenderness in the chest and tenderness in epizantric region and right thigh/buttock.
23. It was strenuously urged on behalf of the prosecution that since these injuries were shown to be simple, in view of the judgment in Lakshmi Singh1 (supra), it was not necessary for the prosecution to explain these injuries. In our view, it 1 AIR 1976 SC 2263 ::: Downloaded on - 09/06/2013 17:39:23 ::: 39 (APEAL1321.03 WITH APEAL 1314.03) is difficult to accept this submission made on behalf of the prosecution. Firstly, there is some substance in the submission made by the learned Senior Counsel appearing on behalf the defence that the prosecution had tried to suppress these injuries which were found on the person of the accused. None of the witnesses has uttered a single word about the injuries on the person of the accused. Even P.W. 7 - Dr. Avinash Chorpade, who was examined by the prosecution, did not produce these certificates in examination-in-chief and only when he was confronted by the defence in the cross-examination with the xerox copies of these certificates, he admitted the contents of the said certificates and tallied copies with the originals and they were brought on record. The Investigating Officer also in his evidence has tried to suggest that he had produced the originals when, in fact, the originals were in the custody of P.W.7. In his examination-in-Chief, he has stated as under:-
"I have produced the injury certificates which were received from Rural Hospital, Akkalkot and Civil Hospital, Solapur."::: Downloaded on - 09/06/2013 17:39:23 ::: 40
(APEAL1321.03 WITH APEAL 1314.03) The evidence of P.W.7, however, indicates that the originals were with him and he had forwarded copies to Police Inspector, Akkalkot. Similarly, the arrest/seizure of clothes panchanama also indicates that there is no reference to the injuries which are on the person of the accused. The panchanama clearlyig suggests that the accused were wearing blood-stained clothes. Thus, every attempt is made to suppress these injuries both, by the Investigating Officer and the witnesses who very cleverly refused to refer to these injuries. So far as the nature of injuries is concerned, though the injuries which are suffered by Vithabai can definitely be considered as simple, the injury No.1 on the person of accused No.1 - Somling which is 4 cms long sutured wound on the left parietal region cannot certainly be referred to as simple injury. Similarly, the injury on the head of Yalappa Patrigida is 4 cms long sutured wound on the vault of the skull and there was contusion of 6 x 3 cms on the back scapular region and this also cannot be said to be simple injury. The injury on the person of the ::: Downloaded on - 09/06/2013 17:39:23 ::: 41 (APEAL1321.03 WITH APEAL 1314.03) accused Maruti of tenderness and contusion may be a simple injury but the injury on the person of Shivningappa Patrigida, particularly two sutured wounds cannot be said to be simple and superficial injuries. It is surprising that the Medical Officer (P.W.7) has stated that no comment can be made in respect of the first injury and there appears to be some overwriting in respect of the said certificate as the word "simple" is scratched and the words "cannot be commented" are mentioned. All these injuries, in our view, cannot be simply described as simple or superficial and, therefore, it was the duty of the prosecution to have explained these injuries. These injuries assume significance, firstly because an attempt is made by the prosecution to suppress these injuries by not mentioning about them either through its eye witnesses or through the Investigating Officer or in the panchanama of arrest/seizure of clothes.
This strengthens the doubt about genuineness of the prosecution case and probabilises the defence that they had acted in self-defence or, in the alternative, there was a free fight which had taken place at the spur of the moment.
::: Downloaded on - 09/06/2013 17:39:23 ::: 42(APEAL1321.03 WITH APEAL 1314.03) The Trial Court in its judgment has merely brushed aside the submission made on behalf of the defence and has not considered the said submission and, therefore, the Trial Court completely ignored the significance of the injuries found on the person of original accused/appellants and the site at which the actual occurrence had taken place and has not considered this fact at all in its judgment.
ig The Trial Court, however, in its judgment has observed on the basis of spot panchanama at Exhibit-38 that since blood was found at four different places, it could not be said that the incident had taken place near the Wasti of the accused Somling.
This finding which is based on the spot panchanama Exhibit-38, obviously, is incorrect. We have perused the spot panchanama. The spot panchanama clearly states that the incident had taken place near the Wasti of Somling. It however, further notes that number of chappals, pagdis, stones, were lying at that site. It also notes that blood-stains were found at various other places. The Trial Court, obviously, has come to the conclusion that the incident had taken place at four different places on the basis of blood-
::: Downloaded on - 09/06/2013 17:39:23 ::: 43(APEAL1321.03 WITH APEAL 1314.03) stains which were found near the common Bandh and at other places and, therefore, clearly erred in holding that the place of occurrence was near the common Bandh. In our view, Trial Court has clearly misconstrued the said spot panchanama at Exhibit-38. No reference has been made by the Trial Court to the various articles which are found near the Wasti of Somling viz turbans, stones. However, merely because some blood-stains were found near the common Bandh and two other places, the said inference has been drawn. Merely because blood-stains are found at different places, from that an inference cannot be drawn that, that was the site at which the incident had taken place.
However, the interesting thing which needs to be noted is that this panchanama was made in the complaint which was filed by the accused at Akkalkot vide C.R. No.25 of 2002 and the Investigating Officer has relied on this panchanama, though the said site was shown by the accused Vithal.
24. Taking into consideration the aforesaid facts, therefore, ratio of the judgment in the case of Lakshmi Singh1 (supra) 1 AIR 1976 SC 2263 ::: Downloaded on - 09/06/2013 17:39:23 ::: 44 (APEAL1321.03 WITH APEAL 1314.03) would squarely apply to the facts of the present case and an adverse inference, therefore, will have to be drawn against the prosecution case.
25. Another important circumstance is the fact that the prosecution has not brought on record the initial vardi which was given to Akkalkot Police Station or Yadi which was given to Solapur Civil Hospital when deceased Nagappa and other two witnesses were referred to the Civil Hospital, Solapur.
From the record, it is obvious, that, initially, both, the accused as well as the complainant had approached the Akkalkot Police Station and were treated at dispensary at Akkalkot and from there the deceased and the other prosecution witnesses were referred to Civil Hospital, Solapur. These crucial documents, however, have not been brought on record and, therefore, an adverse inference will have to be drawn against the prosecution that these documents were not brought on record in order to ensure that any statement of free fight made by the prosecution witnesses in the hospital or Akkalkot Police Station diary ::: Downloaded on - 09/06/2013 17:39:23 ::: 45 (APEAL1321.03 WITH APEAL 1314.03) would not result in probabilising the case of self-defence and or of free fight as put forth by the accused.
26. One more circumstance which creates doubt about the prosecution case is that though Nagappa Chaulgi was alive from 19.4.2002 to 24.4.2002, his statement had not been recorded by the prosecution. The doctor who examined him has stated in his cross-examination that he examined him on 20.4.2002 at about 10.30 a.m. and, at that time, his pulse and blood pressure was found normal and the patient was conscious and well oriented. If that was the case, there is no reason why his statement was not recorded by the prosecution since he was the best person who could have mentioned as to how the incident happened. The Investigating Officer, in his evidence, has not given any reason for not recording the statement of Nagappa and, therefore, also in our view adverse inference is liable to be drawn.
27. The next question which needs to be considered is :
::: Downloaded on - 09/06/2013 17:39:23 ::: 46(APEAL1321.03 WITH APEAL 1314.03) whether the allegation of formation of unlawful assembly with an intention to commit bodily injury is sufficient in the ordinary course of nature to cause death is made out by the prosecution? So far as the question of unlawful assembly and common object is concerned, in our view, the prosecution has miserably failed to establish the two essential ingredients which are necessary for establishing its case under section 149 of the IPC. We have already held that site at which the incident took place was near the Wasti of Somling. It, therefore, appears that the defence of the accused is more probable that after the first incident took place in the morning at 11 O'clock, the complainant, deceased and the other witnesses came to question the accused near their residence and either assaulted Somling and others and the accused in self-defence retaliated or, alternatively, there was a free fight which took place at the spur of the moment due to altercation between the parties.
Since the evidence indicates that the accused did not appear to be aggressors since they were near the residence and they also sustained injuries, the prosecution case that ::: Downloaded on - 09/06/2013 17:39:23 ::: 47 (APEAL1321.03 WITH APEAL 1314.03) they were armed with the weapons and lying in wait with the intention of assaulting the complainant and the deceased and other witnesses falls to the ground.
Therefore, in our view, the prosecution has miserably failed to establish the offence punishable under sections 147, 148 and 149 of the Indian Penal Code.
28. The next question which remains to be seen is what is the offence committed by each of the accused? So far as accused No.1 Somling is concerned, P.W.3, P.W.4 and P.W.5 have stated that they had seen accused No.1 - Somling giving stab blow in the stomach of the deceased Nagappa and that when he removed the knife the intestine of Nagappa came out. P.W.4 also stated that Somling gave a blow on the finger of Nagappa with a sword. In our view, it is difficult to totally discard the testimony of these three witnesses. It is true that P.W. 3, 4 and 5 have made lot of omissions and contradictions on various aspects which have been brought on record. However, merely on the basis of the said omissions and contradictions which have been ::: Downloaded on - 09/06/2013 17:39:23 ::: 48 (APEAL1321.03 WITH APEAL 1314.03) proved, the evidence which has come on record regarding witnessing the assault made by accused No.1 - Somling with knife by these three eye witnesses on the stomach of Nagapopa cannot be discarded. The question which now needs to be considered is what offence has been committed by accused No.1 - Somling as a result of the said assault. As we have indicated ig hereinabove, as a result of non-
explanation of the injuries on the person of the accused and suppressing the genesis of the offence, the version of the accused of self-defence or, alternatively, of free fight or their case falling within exception 4 of section 300 of the IPC will have to be accepted. Once it is held that the case of the accused No.1 falls within the four corners of exceptions to section 300 of the IPC, even if it is held that accused No.1 had an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death, since his case falls in the exception 2 or 4, his offence comes out of the rigor of 'murder' as defined under section 300 and, therefore, he is liable to be punished under section 304 of the IPC. In our view, the case of accused No.1 would fall in ::: Downloaded on - 09/06/2013 17:39:23 ::: 49 (APEAL1321.03 WITH APEAL 1314.03) section 304 Part-I of the IPC.
29. So far as accused Nos. 4, 9 and 10 are concerned, no specific role has been attributed to these accused and they were convicted by the Trial Court since provisions of section 149 of the IPC were made applicable against them. Since, in our view, provisions of section 149 are not attracted in the present case, the said three accused viz. Bhojraya Ramanna Patrigida - accused No.4, Deelip Shivningappa Patrigida -
accused No.9 and Daulappa Maruti Patrigida - accused No. 10 will have to be acquitted. Moreover, it has to be noted that so far as accused No.4 - Bhojraya Ramanna Patrigida is concerned, allegations were made that he was carrying a fire arm and he had fired a shot at Chaulgi which allegation was not accepted by the Trial Court and he was acquitted of the offence under the Arms Act since no fire arm was recovered at this instance.
30. So far as accused No. 2 - Shivningappa Ramanna Patrigida is concerned, it is alleged that he has given axe ::: Downloaded on - 09/06/2013 17:39:23 ::: 50 (APEAL1321.03 WITH APEAL 1314.03) blow to P.W. 4. Yallappa - accused No.4 has given axe blow on the arm of P.W.4. Accused No. 5 - Maruti has given a sword blow to P.W.4 and Ramanna - accused No.6 has given a blow with sword to P.W.3. Though injuries received by P.W. 3, 4 and 5 are simple in nature, since these accused have used the sword, in our view, they have committed an offence punishable under section 324 of the Indian Penal Code.
31. An argument was advanced by the learned Senior Counsel appearing on behalf of accused No.1 - Somling that discovery of weapons by accused No.1 - Somling cannot be relied upon since he has stated that he had hidden those weapons alongwith other accused and, therefore, authorship in respect of this fact is not that of accused No.1 - Somling alone and, therefore, the said discovery would have to be discarded and cannot be treated as an admission of fact under section 27 of the Evidence Act and the reliance was placed on the judgment of the Apex Court in Pohalya Motya Valvi vs. State of Maharashtra 1. In our view, the said 1 (1980) 1 SCC 530 ::: Downloaded on - 09/06/2013 17:39:23 ::: 51 (APEAL1321.03 WITH APEAL 1314.03) submission cannot be accepted. Section 27 of the Evidence Act reads as under:-
"27. How much of information received from accused may be proved.-
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
The Privy Council in Pulukuri Kottaya and another vs Emperor 1 has observed in para 10 of its judgment as under:-
"[10] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a 1 AIR (34) 1947 Privy Council 67 ::: Downloaded on - 09/06/2013 17:39:23 ::: 52 (APEAL1321.03 WITH APEAL 1314.03) person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused"......
Any discovery of fact, therefore, which is made at the instance of the accused, therefore, is held to be admissible.
In the case of Pohalya Motya Valvi1 (Supra), there were two accused and in the statement under section 27, the accused 1 (1980) 1 SCC 530 ::: Downloaded on - 09/06/2013 17:39:23 ::: 53 (APEAL1321.03 WITH APEAL 1314.03) had stated that he was shown the place where the weapon was 'placed'. The Apex Court, in the facts of the said case, held that literal meaning of the word would be that he had knowledge where the said weapon was placed and it could not be treated that he had placed that weapon there and it was observed that it was possible that other accused had informed him about the place at which the weapon was concealed. In this context the Apex Court has observed in para 15 of its judgment as under :-
"15..... "The Marathi expression 'Thevala' would more appropriately be translated "has been kept' and not 'I have kept' because in the case of 'Have kept it', the Marathi word would be 'Thevala'. It may be that being not conversant with Marathi language our translation may not be appropriate but if this recovery of blood-stained spear is the only important circumstance of an incriminating character established in this case and if the authorship of concealment is ::: Downloaded on - 09/06/2013 17:39:23 ::: 54 (APEAL1321.03 WITH APEAL 1314.03) not clearly borne out by cogent and incontrovertible evidence but as the High Court observes left to be inferred by implication, we have considerable hesitation in placing implicit reliance upon it. More so when it is confessional statement which becomes admissible under section 27 of Evidence Act though made in the immediate presence of a police officer. The recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. And in this case, Bhamta was another co-accused. The appellant may have only the knowledge of the place where it was hidden. To make such circumstance incriminating it must be shown that the appellant himself had concealed the blood-stained spear which was the weapon of offence and on this point the language used in the ::: Downloaded on - 09/06/2013 17:39:23 ::: 55 (APEAL1321.03 WITH APEAL 1314.03) contemporaneous record Ex. 28 is not free from doubt and when two constructions are possible in a criminal trial, the one beneficial to the accused will have to be adopted".....
The Apex Court, therefore, in the facts of the said case has held that it was not the incriminating circumstance. In the present case, however, from the said statement, it is clear that the accused No.1 specifically states that he, along with the other accused, had concealed the weapons in a small shrub near the well and, therefore, in our view, authorship of concealment was clearly borne out by his statement. The said submission, therefore, cannot be accepted.
32. In view of the above, so far as question No.12(i) is concerned, it is answered in the negative. Question No. 12(ii) is answered in the affirmative. However, so far as the question of sentence is concerned, accused No.1 is convicted for the offence punishable under section 304 Part-I of the IPC and sentenced to suffer R.I for 10 years and that ::: Downloaded on - 09/06/2013 17:39:23 ::: 56 (APEAL1321.03 WITH APEAL 1314.03) he is liable to pay fine which is quantified at Rs 2500/- and in default, he shall further suffer R.I for six months. So far as accused Nos. 2, 3 and 4 are concerned, they are convicted under section 324 of the Indian Penal Code and sentenced to suffer R.I for 3 years and they are also liable to pay fine of Rs 2,500/- each and, in default, they shall further suffer R.I for six months. Accused Nos, 4, 9 and 10, however, are acquitted of all the offences for which they were charged. So far as question No.12(iii) is concerned, it is answered in the negative.
33. In the result both these criminal appeals are partly allowed and the following order is passed:-
ORDER
(i) So far as the conviction of the Original Accused No.1-
Somling Ramanna Patrigida is concerned, his conviction is altered. The Accused Nos.1 to 6, 9 and 10 are acquitted of the offences punishable under sections 147, 148, 302, 323,325 r/w. 149 of the Indian Penal Code.
::: Downloaded on - 09/06/2013 17:39:24 ::: 57(APEAL1321.03 WITH APEAL 1314.03)
(ii) The conviction of accused No.1 is converted from section 302 to section 304 Part-I of the Indian Penal Code and he is sentenced to suffer R.I. for 10 years. The Accused No.1 shall pay fine which is quantified at Rs.2500/-and, in default, he shall further suffer R.I. for six months. However, he shall be entitled for set off under section 428 of Cr.P.C.
(iii) Accused Nos.2, 3, 5 and 6 are convicted for the offences punishable under section 324 of the Indian Penal Code and they are sentenced to suffer R.I. for 3 years and they are also liable to pay fine of Rs.2,500/-
each and, in default, they shall further suffer R.I. for six months. However, they shall be entitled for set off under section 428 of Cr.P.C.
(iv) Accused Nos.4, 9 and 10 are acquitted of all the offences for which they were charged. Their bail bonds are cancelled.
(A.M.THIPSAY J.) (V.M. KANADE J.) ::: Downloaded on - 09/06/2013 17:39:24 ::: 58 (APEAL1321.03 WITH APEAL 1314.03) ::: Downloaded on - 09/06/2013 17:39:24 :::