Bombay High Court
Sitaram Tukaram Masulkar vs The State Of Maharashtra on 24 March, 2011
Author: Naresh H. Patil
Bench: Naresh H. Patil, T.V. Nalawade
cria349.09
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.349 OF 2009
Sitaram Tukaram Masulkar,
Age-41 years, Occu: Agriculture,
R/o-Pokhari (N),
Dist-Parbhaniig
...APPELLANT.
(Original Accused No.1)
VERSUS
The State of Maharashtra,
...RESPONDENT.
...
Shri. Satyajit S. Bora Advocate for the
Appellant.
Smt. R.K. Ladda, A.P.P. for the
Respondent - State.
...
WITH
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
2
CRIMINAL APPEAL NO.602 OF 2009
The State of Maharashtra,
Through: Police Station, Daithana,
Dist-Parbhani.
...APPELLANT.
VERSUS
1) Rama s/o Tukaram Masulkar,
Age-40 years, Occu:Agril.,
R/o-Pokharni (N), Dist-Parbhani,
2) Laxman s/o Tukaram Masulkar,
Age-27 years, Occu: Agri.,
R/o- As above,
3) Shivaji s/o Mariba Bele,
Age-37 years, Occu:Agri.,
R/o- As above.
4) Saheb s/o Laxman Bele,
Age-43 years, Occu:Agri.,
R/o-As above,
5) Mariba s/o Lingu Bele,
Age-65 years, Occu:Agri.,
R/o- As above,
6) Balasaheb s/o Mariba Bele,
Age-45 years, Occu: Agri.,
R/o-As above.
...RESPONDENTS.
...
Smt.R.K. Ladda, A.P.P. for Appellant - State.
Shri. Satyajit S. Bora Advocate for
Respondents
...
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
3
WITH
CRIMINAL REVISION APPLICATION NO.209 OF 2009
Bhausaheb s/o Uttamrao Bele,
Age-22 years, Occu: Education,
R/o-Pokhari (N), Tq-Parbhani,
Dist-Parbhani.
...APPLICANT.
(Original Complainant)
VERSUS
1) The State of Maharashtra,
Through Police Station,
Daithana, Dist-Parbhani,
2) Sitaram Tukaram Masulkar,
Age-42 years, Occu:Agri.,
3) Rama Tukaram Masulkar,
Age-Major,
4) Laxman Tukaram Masulkar,
Age-27 years, Occu: Agri.,
5) Shivaji Mariba Bele,
Age-37 years, Occu:Agri.,
6) Saheb s/o Laxman Bele,
Age-43 years, Occu:Agri.,
7) Mariba Lingu Bele,
Age-65 years, Occu:Agri.,
8) Balasaheb Mariba Bele,
Age-45 years, Occu: Agri.,
All R/o-Pokharni (N),
Dist-Parbhani.
...RESPONDENTS.
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
4
...
Shri. S.G. Joshi Advocate for Applicant.
Smt. R.K. Ladda, A.P.P.for Respondent
No.1 - State.
Shri. Satyajit S. Bora Advocate for
Respondent Nos.2 to 8.
...
CORAM: NARESH H. PATIL AND
T.V. NALAWADE, JJ.
DATE : 24TH MARCH, 2011.
JUDGMENT [PER NARESH H. PATIL, J.] :
1. The Appellant Sitaram Tukaram Masulkar
was charged along with six other persons, for an
offence punishable under Section 148 of the Indian
Penal Code, under Section 323 read with Section
149, Section 336 read with Section 149, Section
504 read with Section 149, Section 302 read with
Section 149 of the Indian Penal Code and under
Section 135 of the Bombay Police Act. In the
Sessions Trial No.9 of 2008, the Additional
Sessions Judge, Parbhani, by Judgment and Order
delivered on 1st July, 2009, convicted the
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
5
Appellant Sitaram for an offence punishable under
Section 302 of the Indian Penal Code. The
original accused Nos. 2 to 4 were convicted for
offence punishable under Section 324 read with
Section 34 of the Indian Penal Code. The Appellant
Sitaram was convicted under Section 302 of the
Indian Penal Code and sentenced to undergo life
imprisonment and to pay fine of Rs.5,000/- (Rupees
Five Thousand) and in default to suffer simple
imprisonment for three months. The original
accused Nos. 1 to 4 were convicted for offence
punishable under Section 324 read with Section 34
of the Indian Penal Code and sentenced to suffer
simple imprisonment for two months and to pay fine
of Rs.1000/- (Rupees One Thousand) each and in
default to suffer simple imprisonment for fifteen
days. Sentences awarded on the Accused Sitaram
were directed to be run concurrently. Original
accused were acquitted from rest of the charges
levelled against them.
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
6
2. The prosecution case, in substance, is
that original accused persons and complainant are
resident of the same village Pokharni, Tq-
Parbhani, Dist-Parbhani. They belong to Wadar
community. They stay in locality namely,
"Wadarwada". Original accused Nos. 1, 2 and 3 are
real brothers. Accused No.4 is son of aunt of
accused Nos. 1 to 3 and accused No.5 is husband of
sister of accused Nos. 1 to 3. Accused No.6 is
husband of aunt of accused Nos. 1 to 3. Accused
No.7 is son of accused No.6.
3. On 19th August, 2007, Uttam Bele was
proceeding by the side of road where construction
of road was going on. He told the labourers that
they should construct the road properly. Uttam
Bele returned home at about 4.30 p.m. as his motor
cycle was punctured. He told his son Bhausaheb to
take his motor cycle to puncture repair shop of
Badrimama. Uttam Bele went to puncture repair shop
at about 5.30 p.m. and asked his son to return
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
7
home. Uttam Bele was waiting at the shop to get
completed the puncture removing work. At that
time, accused Sitaram and Shivaji came at the shop
and asked him as to what right he had got to
instruct the labourers to do the work properly.
Uttam replied that as he would be using the said
road, he instructed the labourers. It is alleged
that accused Sitaram and Shivaji assaulted Uttam
with kicks and fist blows. Bhausaheb Wagh,
Sheshrao Wagh and Tukaram Wagh arrived at the spot
and rescued the quarrel. Thereafter Uttam went to
his home at about 6.30 p.m.
4. The prosecution alleges that original
accused Nos. 1 to 7 went to the house of
complainant Uttam in between 7.00 to 7.30 p.m. and
started abusing him in filthy language. Deceased
Tukaram, brother of Uttam, went to the accused and
asked them that quarrel was already over and they
should not agitate the issue again. At that point
of time, accused Sitaram gave blow with wooden log
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
8
on the head of Tukaram. Tukaram sustained bleeding
injuries and collapsed due to the said assault. It
is alleged that accused Shivaji assaulted Tukaram
with a stone on his leg and Laxman gave a blow of
stick on the femur region of Tukaram. The
prosecution witness Uttam intervened. Accused
Laxman inflicted a blow with a stick on left
shoulder of Uttam and Shivaji assaulted with stone
on abdomen and femur region of Uttam. It is
alleged that accused assaulted Raosaheb son of
Tukaram and Bhausaheb son of Uttam. Accused
assaulted Kishan, who is brother of Tukaram.
Thereafter accused ran away.
5. The prosecution alleges that Uttam and
others lifted injured Tukaram and carried him in
Auto Rickshaw upto village Phata and from there,
they carried him in Jeep to Parbhani Civil
Hospital. Considering the condition of Tukaram,
medical officers of Civil Hospital, Prabhani
referred Tukaram to Nanded. Tukaram was carried in
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
9
Ambulance to private hospital at Nanded. He was
treated there and on the next day i.e. on 20th
August, 2007, Tukaram succumbed to the injuries at
3.00 p.m. The Lotus Hospital, where Tukaram was
being treated, forwarded instructions in respect
of medico legal case to Police Station, Wajirabad,
Nanded. Police reached Lotus Hospital, recorded
statement of Raosaheb, drawn inquest panchnama and
the dead body was sent for post-mortem. After
post-mortem was completed, dead body was brought
to Parbhani at late night. It is alleged that
clothes of Kishan, Shewantabai and Uttam had blood
stains. The said clothes were seized by Police.
Complainant Bhausaheb was informed about the death
of Tukaram on 20th August, 2007 at about 6.00 p.m.
The complainant Bhausaheb went to Police Station,
Daithana and lodged F.I.R. against the accused
persons, which was registered at Police Station,
Daithana at 20.05 hours on 20th August, 2007 as
Crime No.72 of 2007.
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
10
6. The Investigation Officer drew spot
panchnama and arrested Sitaram on the same day and
other accused persons were arrested on next day
i.e. on 21st August, 2007. Blood stained earth,
simple earth and one stone were seized from the
spot of incident. Police recorded statements of
witnesses. After completing the necessary
investigation, the Police filed charge-sheet
against the accused in the Court of J.M.F.C.(5th
Court), Parbhani. The case was committed to
Sessions Court on 11th February, 2008. The charge
was framed against accused persons on 20th May,
2008, to which the accused pleaded not guilty and
claimed to be tried.
7. The prosecution witness PW-1 Uttam Bele
deposed before the Court that he is related to
accused. He described the incident and
specifically stated that accused Sitaram and
Shivaji assaulted him with kicks and fist blows.
He thereafter narrated the incident wherein
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
11
accused persons came to the house of the
complainant and started abusing them. Uttam is
brother of deceased Tukaram. In respect of assault
on Tukaram, the witness deposed that Sitaram gave
blow with wooden log stick on the head of Tukaram.
Tukaram sustained bleeding injuries and collapsed
down. He has also narrated that Shivaji assaulted
Tukaram and Laxman gave stick blow on the femur of
Tukaram. Shivaji assaulted this witness too.
Accused also assaulted his brother Kishan and
thereafter ran away. The witness further narrated
that Tukaram was lifted and taken to Civil
Hospital, Parbhani and thereafter to private
hospital at Nanded.
. The witness submits that there was street
light near the spot. Though it was evening hours,
there was visibility and it was not dark and there
was some light. The witness states that due to
injuries on head, brain matter of Tukaram had come
out.
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
12
8. In the cross-examination, the witness
PW-1 Uttam stated that their wasti is of Wadar
community. Their main work is stone breaking. His
relations with accused were not good. The accused
and the witness were not on talking terms.
Electric pole is placed in front of house of
Girjabai and the said light provided sufficient
visibility near the house of witness and the
deceased. The distance between house of accused
Sitaram and Girjabai, aunt of this witness, was
about 125 ft.
. The witness deposed that the incident of
abuses and assault was going on for about 10
minutes. Thereafter the assault took place and
Tukaram was carried in Auto Rickshaw to hospital.
None had arrived at the spot from the lane till
deceased Tukaram was carried and surrounding
people had closed their doors as they were afraid
of pelting of stones. None else other than the
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
13
witness and accused knew about the incident. It is
further deposed that there was heap of stones
lying in front of house of Bapu Bele. Deceased
Tukaram had height of 5 ft. and was having well
built body. The witness has named Sitaram,
Sahebrao, Laxman, Rama and Mariba. The witness
could not tell which of the accused assaulted
other persons. This witness sustained contusions
due to pelting of stones from a distance of 2 ft.
weighing 2 kg. On the day of incident, the witness
and other injured were not referred to the
hospital. He deposed that they were referred to
the Hospital on 21st August, 2007 and till then
they did not take any treatment. They were
provided with minor treatment.
. The witness further deposed that at
Parbhani Civil Hospital, they informed the doctor
that Tukaram was assaulted but they did not inform
the police out post attached to the Civil
Hospital, about the incident. According to the
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
14
witness, Tukaram was unconscious through-out. The
inquest panchnama was drawn in his presence. The
police had recorded statement of Raosaheb son of
Tukaram, between 7.00 to 7.30 p.m. The witness
along with others reached Pokharni at 11.30 p.m.
on 20th August, 2007. Complaint was lodged to the
police at Lotus Hospital, Nanded after death of
Tukaram. The witness was suggested that there was
poor visibility at the spot and police had to
conduct spot panchnama with the help of battery,
to which the witness stated that he did not know
about the same. The defence brought on record
certain omissions in respect of evidence of this
witness in respect of settling of the earlier
quarrel and regarding Laxman giving blow with a
stick on his left shoulder and Shivaji pelting
stone, which caused injuries to abdomen and femur.
9. PW-2 is Bhausaheb Bele. Deceased was his
elder paternal uncle. He narrates the incident in
the same manner as was narrated by PW-1. He was
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
15
cross-examined. He denied suggestion that there
was no visibility on the spot. He stated that
nobody came there as stones were pelted. The said
incident was going on for about 10 to 15 minutes.
The witness was in the Hospital at Nanded
throughout the night on the day of incident till
1.30 p.m. of next day. He stated that in his
presence, police made enquiries with his cousin
brother Raosaheb. The witness denied suggestion
that they had pelted stones on the house of
Sitaram and others.
10. PW-3 Kishan Bele is brother of deceased
Tukaram. He narrates the same incident in the
similar fashion. The witness admits that he did
not disclose name of the assailants to the Doctor
at Nanded and further states that their relations
with accused were strained.
11. PW-4 is Girjabai Pawar. Deceased was her
nephew. She too narrates the incident in similar
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
16
fashion. PW-5 is Shaikh Akbar Shaikh Yasin, who
was declared hostile.
12. PW-6 is Raosaheb Tukaram Bele, who is son
of deceased Tukaram. His evidence is material for
the case. He narrates the incident and the assault
on the head of his father by Sitaram, with the
help of a wooden log. In his deposition, the
witness stated that Police had come to Lotus
Hospital, Nanded and recorded statement. At that
time he made statement that Sitaram had given blow
with stone and Shivaji had given blow with stick
on the person of deceased. He has stated so as he
was not in a proper frame of mental condition as
his father was dead. According to witness correct
facts are narrated by him in the supplenentary
statement recorded on 10th November, 2007. He
identified accused before the Court.
. In his cross-examination, the witness
deposed that Sitaram assaulted the deceased from
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
17
behind due to which deceased fell down on the
ground, on his head. None from the neighbourhood
had gathered there as accused were pelting
stones. The witness stated that he too sustained
contusions and was referred to the doctor on 21st
August, 2007. Till that time, he did not take any
treatment.
13.
PW-7 Wyankat Bamne is a panch in respect
of discovery of sickle at the instance of accused
Sitaram. He deposed that Sitaram had made a
statement that the stick used in assault was
concealed by him under the heap of cotton stems
near the house of Rama Masulkar and he will
produce the same. The panchnama was signed by
Sitaram. It bears his signature also. They then
went to the spot and at the instance of Sitaram,
four simple wooden sticks and one wooden log was
discovered, which had blood stains. The articles
were seized under a panchnama.
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
18
. In cross-examination the witness stated
that heap of cotton stems was on the East side of
Tad-pangri road, in open space. The muddemal
articles, sticks were of Babul tree. Four sticks
were of Babul tree and long stick was of Neem
tree, according to the witness.
14. PW-8 Balasaheb Jadhav was a panch in
respect of seizure of clothes of Appellant
Sitaram. PW-9 Vallabh Dhotre was police constable
who carried muddemal articles to Chemical
Analyser, Aurangabad on 5th September, 2007.
15. PW-10 is Dr. Shubhangi Karadkhedkar. This
witness conducted autopsy on the corpus of
Tukaram. The Doctor opined that death was caused
due to shock due to intracebral hemorrhage due to
head injury on 20th August, 2007. The witness
deposed that external injuries were mentioned in
column No.17 of the P.M. Notes. There was stitch
wound on left parietal region, there were 8
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
19
stitches. The deceased sustained abrasion over
left leg, located centrally, 3 X 1/2 c.m. On
internal examination the corresponding internal
injuries were found by the Doctor which were
mentioned in column No.19 of P.M. Notes. There was
fracture of left parietal bone, 2 X 1 c.m. brain
deep. Fracture of occipital bone 2 X 1 c.m. brain
deep. The post-mortem report is at Exhibit 62 of
the record. The witness had conducted 100 autopsy
in her career. She deposed that fatal injury was
possible due to blow with a wooden log.
. In her cross-examination, the witness
stated that size and nature of injury could have
been stated but as injury was stitched, it was not
proper for her to comment about the nature of
injury. The witness could not tell the age of
injury and as to whether injury was caused by
sharp weapon or by hard and blunt object. She
stated that such type of injury was possible in
case of accident and by hit of a stone. The
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
20
witness further stated that it could not be
ascertained whether the injury was possible by
wooden log or by stone or by fall in accident.
16. PW-11 Sunil Jaitapurkar is A.P.I. who
arrested accused Sitaram, Shivaji, Mariba,
Balasaheb, Rama, Laxman and Sahebrao.
17.
PW-12 is Vishwanath Jadhav. He is a panch
in respect of seizure of clothes of deceased and
Uttam Bele. PW-13 is Syed Khalil Syed Ismail,
Police Head Constable. He was on duty on 20th
August, 2007 at Vazirabad Police Station, Nanded,
who received M.L.C. Information from Lotus
Hospital, Nanded to the effect that Tukaram was
admitted in the Hospital.
18. PW-14 Ashwini Ingle, was medical officer
at P.H.C. Diathana since the year 2004 to 2009.
This witness examined Bhausaheb Bele, Uttam Bele
and Kishan Bele. According to her, nature of
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
21
injuries suffered by them were simple in nature,
caused by hard and blunt object. Age of injuries
was stated to be less than 48 hours. Medical
certificates accordingly issued, are at Exhibit
85, 86 and 87 respectively. The witness also
examined Raosaheb Bele, who had suffered abrasion.
19. Witness No.15 is Shashikant Satav, who
was on duty on 20th August, 2007 as S.D.P.O.,
Parbhani. The witness had given directions to
P.S.I. Jaitapurkar to arrest accused persons who
were absconding. He drew the spot panchnama. The
witness deposed that Sitaram produced wooden log
and four sticks used in the said offence, which
were seized by him. In cross-examination, the
witness stated that near Neem tree at the spot of
incident, there was a pole having electric bulb.
At the spot of incident light of lamp on the pole
was insufficient and therefore they used battery
light for drawing spot panchnama.
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
22
20. Learned counsel Shri. Satyajit Bora
appearing for the Appellant Sitaram submitted that
version in respect of attack on the deceased by
Appellant is absolutely doubtful version. There is
contradiction in respect of the weapon used in the
assault. There were no blood stains on the wooden
log, which was recovered allegedly from the
Appellant by the prosecution. The prosecution
witnesses are highly interested as they are
inter-se related. Prosecution failed to examine
independent witnesses though there were number of
neighbours residing at the spot of incident and
they were available. In respect of the spot, the
counsel submitted that heap of stone was seen at
the spot. There was quarrel for some time, which
resulted in pelting of stones, in which accused
also sustained injuries. The manner in which the
assault was given allegedly by the Appellant from
behind on the person of Tukaram, is not explained
properly and is doubtful version of the
prosecution witnesses. The delay in reporting the
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
23
incident of assault to police is fatal to
prosecution case. The delay is not explained. The
F.I.R. which was lodged after about 24 hours from
the incident, was due to the fact that prosecution
witnesses thought over the incident to involve as
many as accused as possible and concocted an
imaginary story. The learned counsel Shri. Bora
further submitted that genesis of the prosecution
case is suppressed, which creates serious doubts
in respect of the truthfulness of the prosecution
case. This is a case where adverse inference is
required to be drawn against the prosecution
witnesses. The counsel submits that alternatively,
in case the Court comes to the conclusion that the
incident had taken place and Appellant had
assaulted deceased with a wooden log, then
considering material on record, the prosecution
failed to establish that the Appellant could be
convicted for an offence punishable under Section
302 of the Indian Penal Code.
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
24
21. Smt. Ladda, learned A.P.P. submitted that
the State had filed Appeal against acquittal of
Accused Nos. 2 to 7 bearing Criminal Appeal No.602
of 2009. The prosecution examined 15 material
witnesses, majority of whom are eye witnesses. The
accused formed unlawful assembly, went to the
house of the complainant side and assaulted
deceased Tukaram from behind, with a forceful blow
of wooden log, on the vital part of the body.
Blood stains are found on the spot. The blood
group of deceased and accused is "A". There were
injured eye witnesses in the case and there is no
reason for them to speak lies and to involve
innocent persons. Learned A.P.P. submitted that in
the light of the principles laid down in the case
of Virsa Singh vs. State of Punjab, 1958, A.I.R.
(S.C.) 465, Appeal filed by the Appellant does not
deserve consideration and deserves to be
dismissed.
22. We have perused the original record and
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
25
proceedings, evidence on record, relevant portion
of the Judgment of the trial Court and considered
the submissions advanced by the learned counsel
appearing before us.
23. We find that the incident emanated from a
trivial issue which started on Uttam asking
labourers to do the construction of the road
properly. Earlier to the incident, there was some
altercation between Appellant and Uttam at the
puncture repair shop at about 5.30 p.m. In the
late evening between 7.00 to 7.30 p.m. all the
accused persons 7 in number, according to
prosecution, formed unlawful assembly and reached
the house of complainant Uttam with a common
object to assault him. If this is a prosecution
case, then it has to be scrutinized as to what was
the object in assaulting deceased Tukaram, who is
elder brother of PW-1 Uttam. Even according to
prosecution witnesses, when the accused persons
reached the spot, they started abusing in filthy
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
26
language. The deceased intervened and asked them
as to why they are agitating the issue which was
settled earlier. It has come on record that there
was pelting of stones. Both, the accused and
complainant side suffered injuries. The deceased
was taken soon thereafter in injured condition to
Civil Hospital, Parbhani and therefrom to Nanded.
It is curious to note as to why prosecution
witnesses chose not to file police complaint
immediately though they shifted deceased from
Civil Hospital Parbhani to private Hospital at
Nanded. It has come on record that medical officer
of Lotus Hospital, Nanded intimated the police
about medico legal case but the prosecution
witness PW-1 Uttam chose to file complaint after
near about 24 hours with Daithana Police Station
on 21st August, 2007. The delay in respect of
filing of the complaint was tried to be explained
by the prosecution witnesses that it was due to
the fact that they themselves were injured and
deceased Tukaram was required to be medically
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
27
treated first. Considering nature of injuries
suffered by prosecution witnesses, we do not find
that it was so difficult for them to lodge
complaint against accused persons when they had
proper opportunities to lodge the same while
deceased Tukaram was taken to hospital at Parbhani
and thereafter at Nanded.
24.
In the facts of the case, the genesis of
the prosecution case is required to be looked into
minutely. We do not find that there was strong
motive for accused Appellant in assaulting the
complainant side, more particularly, the Appellant
assaulting deceased Tukaram. There is no evidence
on record to show that there was specific enmity
between Appellant and deceased Tukaram. Though it
has come on record that relations between both the
parties were strained, but still the prosecution
struggled to establish that there was motive for
the accused persons to commit murder of deceased
Tukaram. While answering charge under Section 302
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
28
of the Indian Penal Code read with Section 149 of
the Indian Penal Code, the prosecution, in our
considered view, has failed to establish that
there was an unlawful assembly of accused persons
formed with a sole object to commit murder of
deceased Tukaram or any other prosecution
witnesses.
25.
The defence had brought on record minute
details in respect of spot of incident.
Considering the evidence on record, we find that
the visibility at the spot must be low. The police
had to use battery light for drawing spot
panchnama. Though prosecution witnesses stated
that there was electric pole and electricity was
on and it was providing sufficient visibility, we
are not fully convinced on the issue that on the
spot and around the spot, there was reasonably
sufficient visibility. But on that count, the
evidence of prosecution cannot be discarded that
the incident had not taken place wherein deceased
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
29
Tukaram suffered serious injuries and thereafter
died.
26. Considering the evidence, we find that
the incident had taken place wherein deceased
Tukaram suffered injuries and fatal blow was given
by the Appellant Sitaram. There is discrepancy in
the evidence of prosecution as to whether the
deceased was assaulted with a wooden log or stone.
But considering the medical evidence in respect of
the injuries suffered by the deceased on his head,
we can reasonably gather that blow must have been
given with the help of wooden log. The blow was so
severe that the deceased collapsed and had to be
taken to the Hospital.
27. The defence had raised another issue in
respect of absence of independent witness. It is
true that incident happened at a place which was
surrounded by other houses. But according to
prosecution witnesses, nobody came out of the
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
30
house as pelting of stones was going on and
therefore nobody could see the incident. Though
the version is little harsh to digest, but merely
because prosecution witnesses were related to
deceased, their evidence cannot be discarded.
Their evidence could be still relied upon as long
as it is truthful and inspires confidence.
28.
The defence further submitted that the
injuries suffered by the accused persons were not
explained by the prosecution. In the facts of the
case, we do not find that even in case the
injuries suffered by the accused persons are not
explained by the prosecution, the prosecution
version in respect of assault is required to be
discarded.
29. The trial Court had considered the
evidence and thereafter reached conclusions
wherein the Appellant Sitaram was convicted for an
offence punishable under Section 302 and 324 of
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
31
the Indian Penal Code. The State had filed Appeal
against acquittal of the accused persons from the
offences for which they were charged with. The
complainant Bhausaheb Bele had also filed Criminal
Revision Application No.209 of 2009. In the facts
of the case, we do not find that the State Appeal
and Revision filed by the complainant deserve
consideration in the light of the evidence on
record.
30. Learned counsel Shri. Bora placed
reliance on the reported Judgment in the case of
Satish Narayan Sawant vs. State of Goa, 2009
D.G.L.S. (Soft.) 1138. In the facts of the case,
the Apex Court observed in Para 28 that:
"28. That being the well settled
legal position, when we test the
factual background of the
present case on the principles
laid down by this Court in the
aforesaid decisions, we are
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
32
unable to agree with the views
taken by the High Court. As
already noted, it is quite clear
from the record that there was
an altercation preceding the
incident. The place of
occurrence is a residence
inhabited by both the parties
and there is no evidence on
record that the deceased was
armed with any weapon. Initially
the accused-appellant also did
not have any weapon with him but
during the course of the
incident he went inside and got
a knife with the help of which
he stabbed the deceased. PW-7 in
his cross examination has
categorically stated that death
due to stab injury was in
consequence of Injury No.1 and
all other injuries were
superficial in nature. So, it
was only Injury No.1 which was
fatal in nature. Factually
therefore, there was only one
main injury caused due to
::: Downloaded on - 09/06/2013 17:08:25 :::
cria349.09
33
stabbing and that also was given
on the back side of the deceased
and therefore, it cannot be said
that there was any intention to
kill or to inflict an injury of
a particular degree of
seriousness. Records clearly
establish that there was indeed
a scuffle between the parties
with regard to the availability
of electricity in a particular
room and during the course of
scuffle the appellant also
received an injury which was
simple in nature and that there
was heated exchange of words and
scuffle between the parties
before the actual incident of
stabbing took place. There is,
therefore, provocation and the
incident happened at the spur of
the moment. That being the
factual position, we are of the
considered view that the present
case cannot be said to be a case
under Section 302 of IPC but it
is a case falling under Section
::: Downloaded on - 09/06/2013 17:08:26 :::
cria349.09
34
304 Part II IPC. It is trite law
that Section 304 Part II comes
into play when the death is
caused by doing an act with
knowledge that it is likely to
cause death but there is no
intention on the part of the
accused either to cause death or
to cause such bodily injury as
is likely to cause death."
31. The learned A.P.P. placed reliance on the
reported Judgment in the case of Virsa Singh vs.
State of Punjab, 1958, A.I.R. (S.C.) 465. In Para
16 of the Judgment, the Apex Court observed that:
"16. The learned counsel for
the appellant referred us to
Emperor v. Sardarkhan
Jaridkhan, ILR 41 Bom 27 at p.
29: (AIR 1916 Bom 191 at p.
192) (B) where Beaman J., says
that: "where death is caused by
a single blow, it is always
much more difficult to be
::: Downloaded on - 09/06/2013 17:08:26 :::
cria349.09
35
absolutely certain what degree
of bodily injury the offender
intended". With due respect to
the learned Judge he has linked
up the intent required with the
seriousness of the injury, and
that, as we have shown, in not
what the section requires. The
two matters are quite separate
and distinct, though the
evidence about them may
sometimes overlap. The question
is not whether the prisoner
intended to inflict a serious
injury or a trivial one but
whether he intended to inflict
the injury that is proved to be
present. If he can show that he
did snot, or if the totality of
the circumstances justify such
an inference, then, of course,
the intent that the section
requires is not proved. But if
there is nothing beyond the
injury and the fact that the
appellant inflicted it, the
only possible inference is that
::: Downloaded on - 09/06/2013 17:08:26 :::
cria349.09
36
he intended to inflict it.
Whether he know of its
seriousness, or intended
serious consequences, is
neither here nor there. The
question, so far as the
intention is concerned, is not
whether he intended to kill, or
to inflict an injury of a
particular degree or
seriousness, but whether he
intended to inflict the injury
in question; and once the
existence of the injury is
proved the intention to cause
it will be presumed unless the
evidence or the circumstances
warrant an opposite conclusion.
But whether the intention is
there or hot is one of fact and
not one of law. Whether the
would is serious or otherwise,
and if serious, how serious, is
a totally separate and distinct
question and has nothing to do
with the question whether the
prisoner intended to inflict
::: Downloaded on - 09/06/2013 17:08:26 :::
cria349.09
37
the injury in question."
32. The learned A.P.P. also placed reliance
on the reported Judgment in the case of Vishnu &
ors. vs. State of Rajasthan, 2009 A.I.R. S.C.W.
6363. The Apex Court in Para 13 of the Judgment,
observed that:
"13. The plea that the provisions
of Section 149 would not be
attracted to the facts of the case
and therefore the appellants who had
not played overt act in causing
injury to deceased Sukh Lal could
not have been convicted under
Section 302 with the aid of Section
149 has no substance. Section 149 of
the Penal Code provides for
vicarious liability. If an offence
is committed by any member of an
unlawful assembly in prosecution of
a common object thereof or such as
the members of that assembly knew
that the offence to be likely to be
committed in prosecution of that
::: Downloaded on - 09/06/2013 17:08:26 :::
cria349.09
38
object, every person who at the time
of committing that offence was
member would be guilty of the
offence committed. The common object
may be commission of one offence
while there may be likelihood of
commission of yet another offence,
the knowledge whereof is capable of
being safely attributable to the
members of the unlawful assembly.
Whether a member of such unlawful
assembly was aware as regards
likelihood of commission of another
offence or not would depend upon the
facts and circumstances of each
case. Background of the incident,
the motive, the nature of the
assembly, the nature of the arms
carried by the members of the
assembly, their common object and
the behaviour of the members soon
before, at or after the actual
commission of the crime would be
relevant factors for drawing an
inference in that behalf."
33. Considering the evidence on record, it is
::: Downloaded on - 09/06/2013 17:08:26 :::
cria349.09
39
clear that the deceased died due to single blow
inflicted on his head by Appellant Sitaram, which
was a fatal blow. From the entirety of the facts
and circumstances of the case and the manner of
assault, the weapon used by the Appellant, we find
that there was no intention to kill the deceased.
We have to consider the genesis of prosecution
case, the initiation of quarrel started with
abuses resulting into pelting of stones and
thereafter with a blow on the head of the
deceased. It needs to be considered as to what
offence the Appellant committed. The Apex Court
observed that provisions of Section 304 Part II of
the Indian Penal Code would come into play when
death is caused but there was no intention on the
part of the assailant to cause death or such
bodily injuries as likely to cause death.
34. We are convinced that the Appellant could
be convicted and sentenced for an offence
punishable under Section 304 Part II of the Indian
::: Downloaded on - 09/06/2013 17:08:26 :::
cria349.09
40
Penal Code instead of offence punishable under
Section 302 of the Indian Penal Code. For the
reasons stated above, we pass following order:
O R D E R
A) The Order passed by the learned Additional Sessions Judge, Parbhani in Sessions Case No.9 of 2008, convicting and sentencing the Appellant for the offence punishable under Section 302 of Indian Penal Code is quashed and set aside.
B) Instead, the Appellant Sitaram is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced ::: Downloaded on - 09/06/2013 17:08:26 ::: cria349.09 41 to undergo imprisonment of five years with fine of Rs.5000/-
(Rupees Five Thousand), in default to suffer simple imprisonment for three months.
The Criminal Appeal No.349 of 2009 is partly allowed.
C) The Criminal Appeal No.602 of 2009 is dismissed. Criminal Revision Application No.209 of 2009 is also dismissed.
[T.V. NALAWADE, J.] [NARESH H. PATIL, J.] asb/MAR11/cria349.09 ::: Downloaded on - 09/06/2013 17:08:26 :::