Bombay High Court
Appellants : 1. Ukanda Harisingh Rathod vs Respondent : The State Of Maharashtra on 15 September, 2008
Author: A.P. Bhangale
Bench: K.J. Rohee, A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 170 of 2003
Appellants : 1. Ukanda Harisingh Rathod, aged about
51 years
2. Rameshwar Ukanda Rathod, aged about
25 years
3. Tukadiram Harisingh Rathod, aged
about 51 years,
All residents of Januna Tahsil Barshitakli
District Akola.
versus.
Respondent : The State of Maharashtra, through Police
Station Officer, Pinjar, Tahsil Barshitakli, District Akola.
Mr R.M. Daga, Advocate and Mr N.A. Badar, Advocate with him for appellant no.1.
Mr R.M. Patwardhan, Advocate for appellant no.2.
::: Downloaded on - 09/06/2013 13:51:36 ::: 2Dr U.K. Kalsi, Advocate for appellant no.3.
Mr J.B. Jaiswal, Addl. Public Prosecutor for respondent-State.
Coram : K.J. Rohee and A.P. Bhangale, JJ Dated : 15th September 2008 Judgment (Per A.P. Bhangale, J)
1. This appeal is directed against judgment and order in Sessions Case No. 192 of 2001 passed by II Additional Sessions Judge, Akola whereby the learned Sessions Judge has found appellants (original accused nos. 1,2 and 9 in Sessions Case No. 192 of 2001) guilty for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. Each of the appellants was sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/-, in default, to undergo further rigorous imprisonment for three months.
The appellants were also held guilty and convicted for offence punishable under Section 307 read with Section 149 of the Indian Penal Code and each of them was sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1000/- each, in ::: Downloaded on - 09/06/2013 13:51:36 ::: 3 default, to suffer rigorous imprisonment for three months. They were also convicted for offence punishable under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay a fine in the sum of Rs. 500/- each, in default to undergo further rigorous imprisonment for one month. Conviction was also recorded under Section 148 of the Indian Penal Code whereby each of the appellants Ukanda and Rameshwar is further sentenced to undergo rigorous imprisonment for one month. Rest of the accused facing trial were acquitted by the trial Court.
2. The facts which led to prosecution and conviction of the appellants may be stated as under.
At village Junona, Tahsil and District Akola on 17.6.2001 between 07.00 and 08.00 a.m. when deceased Nawalchand was standing near the shop of one Subhash Rathod, the incident had occurred. According to prosecution, accused Tukadiram (appellant no. 3) held collar of Nawalchand, who sought pardon and requested Tukadiram to relieve him. At that time, Chandusingh (PW 7) arrived ::: Downloaded on - 09/06/2013 13:51:36 ::: 4 at the scene and asked Tukadiram to relieve Nawalchand. At that time, Rameshwar (appellant no.2), Kailash, Lobhsingh, Kailas Babusingh arrived with axe, sticks, iron pipes. Rameshwar hit iron pipe on the head of Nawalchand and Nawalchand fell down. Ukanda hit Nawalchand by axe and others also assaulted. Chandusingh (PW
7) was also assaulted.
Nawalchand who was injured in the incident was taken to hospital. Nawalchand died as a result of incident and Chandusingh was injured.
3. Meera, wife of Rajesh Rathod upon knowing about the incident reported it to police. Nawalchand was declared dead at hospital and his dead body was sent for post-mortem examination. Dr Mankar (PW 9) performed post-mortem examination.
Injured Chandusingh was examined by Dr Ranjeet Deshmukh (PW 11) and Dr Kiran Deshmukh (PW 12).
4. On the basis of information lodged by PW 10 Meera, ::: Downloaded on - 09/06/2013 13:51:36 ::: 5 investigation was undertaken by PW 13 PSI Katkar and charge-sheets were placed before the Judicial Magistrate, First Class, Barshitakli giving rise to sessions cases no. 192 of 2001, 12 of 2002 and 67 of 2002 against different accused in respect of the same incident. The accused were charged on the ground that they had formed unlawful assembly and in prosecution of the common object, committed offence punishable under Section 302 and Section 307 etc. of the Indian Penal Code. The accused pleaded not guilty and claimed trial.
5. The prosecution examined 13 witnesses apart from a court witness examined to substantiate the case.
6. The prosecution rested upon direct evidence of PW 1 Sadhu, PW 2 Rajaram, PW 5 Babusing, PW 6 Balu @ Pramod, PW 7 Chandu apart from panch witnesses, CA report and medical evidence of Dr Deepak Mankar (PW 9), Dr Ranjeet Deshmukh (PW 11) and Dr Kiran Deshmukh (PW 12). The learned trial Court accepted evidence qua the appellants and held them guilty as members of unlawful ::: Downloaded on - 09/06/2013 13:51:36 ::: 6 assembly with common object to use deadly weapons for commission of murder of Nawalchand and attempting murder of Chandusingh and convicted them accordingly.
7. Learned counsel for the appellants submitted that evidence did not establish guilt of the present appellants. They submitted that the offences punishable under Sections 302 and 307 read with Section 149 of the Indian Penal Code were not made out and prayed for acquittal. Learned counsel for the appellants placed reliance upon following decisions :
(1). Hamlet @ Sasi & ors v. State of Kerala (2003 ALL MR (Cri) 2405 (SC), (2). Babu Dhaku Kharat & ors v. The State of Maharashtra (1999 (5) Bom CR 569) and prayed that convictions be set aside.
8. Learned Additional Public Prosecutor for the State supported the judgment and order of the trial Court.
::: Downloaded on - 09/06/2013 13:51:36 ::: 79. We have heard rival submissions and perused rulings cited and examined evidence led in the trial Court.
10. Dr Deepak Mankar (PW 9) who held autopsy on the dead body of Nawalchand, noticed following external injuries :
(1). Incised wound near lateral contus of left eye 2" x ½ cm by half cm, it was horizontal.
(2). Incised wound over right eye brow measuring 2 and half inches x half by bone deep, was horizontal.
(3). Incised wound over chin of left side measuring 2 and half inches x half inch, bone deep, it was in oblique direction.
(4). Incised wound over right leg measuring 2" x ½ x bone deep.
(5). Incised wound on left leg measuring 1/2" by half cm, also bone deep.
(6). Contusion 3" x 2" over right leg.::: Downloaded on - 09/06/2013 13:51:36 ::: 8
(7). Contusion wound measuring about 3 and 1/2" by 2"
over left leg.
(8). Incised wound measuring about over the occipital region, measuring about 1/2" cm x ½ cm its direction was horizontal.
Dr Mankar deposed that there was fracture of mandible (body), shaft tibia on right side and shift of left side and the injuries were ante-mortem. He further deposed that death was due to intercerebral haemorrhage due to head injury. He also deposed that bone deep injury could be caused by weapon like axe and external injuries (at 6 and 7 above) could be caused by pipe and rest of the injuries could be caused by axes which were shown to him before the Court. From the evidence of Dr Mankar, it can safely be held that death of deceased Nawalchand was homicidal, because injuries sustained on the person of the deceased were sufficient in the opinion of Dr.Mankar, to cause death in the ordinary course. We do not find any plausible material contracdictory to this evidence so as to disbelieve the case of the prosecution that deceased Navalchand met with homicidal death.
::: Downloaded on - 09/06/2013 13:51:36 ::: 911. We do not agree with submission on behalf of the appellants that their penal liability can be reduced to the extent of punishment for grievous hurt only, punishable under section 326 read with section 34 of the Indian Penal Code. The direct evidence led in this case as deposed to by PW 1 Sadhu; PW 2 Rajaram ;
PW 5 Babusingh; PW 6 Balu; PW 7 Chandu (injured witness) consistently indicate that appellant Tukadiram had held collar of the shirt of deceased Navalchand ig when Chandu (PW 7) intervened and had asked Tukadiram to leave collar of Navalchand. Appellant Ukanda and Rameshwar, brother and nephew respectively of Tukadiram, intervened to assist Tukadiram who was their close relative. The genus of the incident, therefore, indicates that there was a sudden fight initially between Tukaridram and Navalchand without premeditation, but sudden fight must have occurred in the heat of passion, when Chandu (PW 7) and appellants Ukanda and Rameshwar, entered on the scene and joined sudden fight. The evidence does not indicate that there was any formation of unlawful assembly with common unlawful object, but indicates that the ::: Downloaded on - 09/06/2013 13:51:36 ::: 10 incident occurred as a result of sudden quarrel. No offender took undue advantage nor acted in cruel or unusual merciless manner. We have gone through the judgment of the Supreme Court in Hamlet's case (supra) cited by learned counsel for the appellants. It is indisputable that in order to invoke the provisions of Section 141 of the Indian Penal Code, the prosecution must establish that there were at least five persons who formed unlawful assembly within the meaning of the said provision and did the act concerned in prosecution of their common unlawful object. Thus, minimum number of persons is prescribed and unless prosecution establishes that five or more persons committed offence in prosecution of their common objection, Section 141 of the Indian Penal Code cannot be invoked. We have also gone through the judgment of this Court in Babu Dhaku's case (supra). In our opinion, conviction in the present case cannot be set aside totally because evidence adduced in this case satisfactorily establishes that the incident had happened in which death of Nawalchand had occurred and PW 7 Chandu received injuries. The ocular evidence is also supported by medical evidence in ::: Downloaded on - 09/06/2013 13:51:36 ::: 11 the present case. Therefore, judgment in Babu Dhaku's case (supra) cannot come to the rescue of the appellants herein. In the facts and circusmtances, therefore, it cannot be said that appellants had formed unlawful assembly with common object to kill Navalchand and/ or Chandu. Had it been so, the injuries would have been serious and multiple and more on vital parts, with weapons like axe, sticks, pipes any agriculturists or agricultural labourer may possess as articles of common use. Occurrence had taken place in the course of sudden quarrel having developed. Tukadiram's brother Ukanda (accused no.1) and nephew Rameshwar also intervening;
sudden fight developed due to the incident and, therefore, we are of the opinion that exception (4) to Section 300 IPC is attracted as there is no evidence of premeditation between the offenders to form an unlawful assesmbly with common object to kill Navalchand and Chandu. Furthermore, evidence indicated that acts of the appellants were without premeditation in an incident that had occurred as a result of sudden heat of passion without any of the appellants acting in cruel or usnsual manner. It was a case of ::: Downloaded on - 09/06/2013 13:51:36 ::: 12 sudden quarrel between appellant-Tukadiram and deceased Navalchand, initially giving rise to sudden fight and heat of passion when Tukadiram's brother and nephew also came on scene. Sober reason may get clouded due to heat of passion resulting into deeds which the appellants would not have committed otherwise but because of sudden quarrel which developed into sudden fight which implies mutual provocation and blows on each side. Both sides are more or less blameworthy. In the facts and circumstances of this case, as revealed from the evidence, there is reason to believe that the appellants acted on account of sudden altercation which developed between Tukadiram and decased Navalchand. While Chandu (PW 7) came on scene to rescue Navalchand, appellants Ukanda (brother of Tukadiram) and Rameshwar ( nephew of Tukadiram) came to intervene thereby giving rise to incident of sudden fight. There was no time for passions to cool down and there was no premeditation . In the absence of any evidence of any undue / unfair advantage having been taken by the appellants, we feel it proper to conclude that it was a case covered ::: Downloaded on - 09/06/2013 13:51:36 ::: 13 by exception (4) to Section 300 IPC and appellants who were armed with axe, sticks, pipes, though articles of common use for agriculture, were used as weapons giving rise to inference that on the spur of moment the appellants shared common intention to cause injuries to Navalchand which were sufficient in the ordinary course of nature or were likely to cause death could have been appropriately convicted by the trial Court for culpabale homicide not amounting to murder, punishable under section 304 Part I read with Section 34 of IPC for causing death of Navalchand, instead of Section 302 read with section 149 of the IPC. We are fortified in our conclusion by the legal position explained by the Apex Court in the case of Rakesh vs. State of M.P. reported in 2008 Cr.L.J. 1646 (SC), more so in Paragraph 7 thereof; which reads thus:-
7. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place could have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation.
But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not ::: Downloaded on - 09/06/2013 13:51:36 ::: 14 otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct conseuqence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties put them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases would the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight;(c ) without the offender having taken undue advantage or acted in a cruel or unsual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or ::: Downloaded on - 09/06/2013 13:51:36 ::: 15 without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was sudden quarrel and that there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unsual manner. The expresion "undue advantage" as used in the provision means "unfair advantage".
For the above reasons, we are of the opinion that the sentence passed under Section 302 read with Section 149 of the Indian Penal Code is required to be altered to the one under Section 304 Part-I read with Section 34 of the Indian Penal Code.
12. The medical examination of PW 7 Chandu by Dr. Deshmukh (PW 11) revealed following injuries :-
(i) Contusion over (L) forearm in middle 3rd and distal 3rd.
(ii) Contusion spine in Lumbar region (No.of Nuro eleficit)
(iii) Contusion (L) leg and foot (L).
(iv) Swelling over upper lip.
(v) Contusion Nose.
The injuries were in the nature of contusions and
::: Downloaded on - 09/06/2013 13:51:36 :::
16
swelling caused by hard and blunt object to Chandusing. While
fracture of nasal bone was possible by fall on the ground as opined by PW 12 -Radiologist on the basis of X-ray plate. That being so, the appellants causing aforementioned injuries by sharing common intention at the time of incident could have been appropriately convicted by the trial Court under section 324 read with section 34 of the IPC, instead of Section 307 read with section 149 IPC for voluntarily causing hurt to Chandusingh by means of axe, sticks, pipes etc. which weapons were likely to cause death.
13. We, accordingly, alter the conviction. The custodial sentence of ten years for each of the appellants for offence punishable under section 304 Part I read with section 34 IPC and for three years for the offence punishable under section 324 r/ws.
34 IPC, in adition to fine already imposed by trial Court would, in our opinion, meet the ends of justice. We do not propose to interfere with the quantum of fine in addition to modified sentence of imprisonment. Substantive sentences of imprisonment will run ::: Downloaded on - 09/06/2013 13:51:36 ::: 17 concurrently.
14. The appeal is allowed to the aforesaid extent and sentence shall be modified accordingly. The appellant-convict Ukanda Harisingh Rathod who is on bail, shall surrender to the custody to serve out remainder of the sentence within eight weeks.
JUDGE
ig JUDGE
joshi
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