Bombay High Court
Shrimant @ Wantya Mokinda Pawar And ... vs The State Of Maharashtra on 2 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 3133
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, B. U. Debadwar
903-CrApl-119-14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 119 OF 2014
1. Shrimant @ Wantya s/o. Mokinda Pawar
Age: 45 years Occu. Agri.,
2. Dashrath s/o. Shrimant Pawar,
Age: 24 years, Occu. Agri.,
Both R/o. Paul-Pimpri,
Tq. Parli-Vaijnath,
District Beed. ... Appellants
(Orig. Accused No. 1 & 2)
Vs.
The State of Maharashtra ... Respondent
...
Advocate for the Appellant : Shri Satej S. Jadhav
APP for the Respondent : Shri R. D. Sanap
...
CORAM : RAVINDRA V. GHUGE AND
B. U. DEBADWAR, JJ.
DATE : 02nd DECEMBER, 2020
JUDGMENT [PER RAVINDRA V. GHUGE, J.] :
1. By this appeal, the convicts viz. accused No.1 Shrimant
and accused No.2 Dashrath son of Shrimant, have been held guilty
of committing an offence punishable under Section 302 read with
Section 34 of the Indian Penal Code (hereinafter referred as "IPC")
and have been handed down a sentence of suffering rigorous
imprisonment for life. Since both had been arrested on
26-07-2012, which is after the offence committed at about 09.00
p.m. on 25-07-2012, they were entitled for set off for the period of
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detention in prison under Section 428 of the Code of Criminal
Procedure, 1973 (hereinafter referred as "Cr.P.C.").
2. We have considered the strenuous submissions of the
learned advocate for the appellants and the learned prosecutor on
behalf of the State. With their assistance, we have gone through
the appeal paper book and the record and proceedings, threadbare.
In order to avoid repetition of their submissions, we would be
referring to their submissions while drawing our conclusions based
on the oral and documentary evidence.
3. The prosecution had proved its case against these two
appellants as follows :-
a) The father of accused No.1 is Mokinda Pawar who had
passed away about 20 years prior to the date of the offence. He
had about 4 acres of land and was survived by his wife Indrabai.
The accused and the deceased are blood relatives and all belong to
the Paradhi tribe which is a Scheduled tribe. Mokinda and Indrabai
had six sons and one daughter. One son Manohar was allegedly
kidnapped and killed years ago by members of another Pardhi
community who have been acquitted. The remaining five sons are
Pandit, Shrimant, Kundalik, Sambhaji and Balbhim. Indrabai
resides with the youngest son Balbhim who cultivates the four acres
of land.
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b) A dispute was on going between these five sons for
partition of the four acres of the agricultural land. Time and again,
there used to be some friction between these brothers as the
agricultural land had become the nucleus of the dispute.
c) On 25-07-2012, accused Shrimant and his son Dashrath
are said to have had an altercation with Kundalik. The wife of
Kundalik namely Basvantabai, PW4, is said to have watched the
exchange of words. Kundalik is said to have telephoned eldest
brother Pandit for help. All these brothers live in a cluster in the
same locality called as Paradhi Pedi / Basti and the distance
between their hutments is approx 500 feet. Pandit arrived with his
son Shivaji and tried to pacify Shrimant and Kundalik. Dashrath is
said to have gone back to his house and returned with a knife.
Shrimant is said to have snatched the knife and stabbed nephew
Shivaji in the abdomen leading to the death of Shivaji. This
incident has occurred between 08.00 to 09.00 p.m.
d) On the next day, 26-07-2012, Pandit lodged an FIR with
Police Station Sirsala, camp at Parli at about 13 hrs. (01.00 p.m.)
and the crime was registered as 70/2012. Section 302 read with
34 of the IPC were made applicable.
e) A spot panchanama Exhibit-47/C was drawn by the
investigating officer. Both the accused were arrested from the Basti
itself. Both have been behind bars since their arrest.
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f) A charge-sheet was submitted before the trial Court on
01-10-2012. The learned Additional Session Judge-2, Ambajogai,
framed the charge in Sessions Case No. 85 of 2012, on
08-11-2012. Both the accused denied the charge and sought to be
tried for the offence punishable under Section 302 read with
Section 34 of the IPC
g) In all seven witnesses were examined by the
prosecution, which are as follows :-
PW1 - Laxman Tukaram Tambade, Panch witness for
the seizure of clothes and knife used by accused
No.1.
PW2 - Manik Rambhau Paul, Panch witness for the spot
panchanama and seizure of soil from the crime
spot.
PW3 - Pandit Mukinda Pawar, the first informant
PW4 - Basvantabai w/o Kundlik Mukinda Pawar
PW5 - Shrirang Jeeja Kale, Panch of the inquest
panchanama and seizure of clothes of the
deceased.
PW6 - Ramakant Dhondiba Panchal, Investigating
officer
PW7 - Dr. Uddhav Narhari Shinde, Autopsy Surgeon
h) PW1 turned hostile. The blood group of accused No.1
Shrimant was not determined. Both the accused recorded their
statements under Section 313 of Cr.P.C. and their common stand
was "I do not know / It is false / false crime is registered against
them" and finally accused No.1 stated that the daughter of Kundlik
and Basvantabai, namely Laxmi had a love affair with a person
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belonging to another tribe namely Ghisadi and hence, the accused
are falsely implicated. Same answer has been given by accused
No.2.
i) Based on the oral and documentary evidence, the trial
Court has concluded that the death of Shivaji was homicidal.
Shrimant had stabbed Shivaji with a knife which was fetched for
him by his son Dashrath. Shivaji died of the stab injury and, hence,
Shrimant is guilty of having committed the offence punishable
under Section 302. Dashrath has also been convicted by invoking
Section 34 of the IPC and was held equally responsible with
Shrimant. Both have been sentenced to suffer rigorous
imprisonment for life.
4. The strenuous submissions of the learned advocate for
the appellants can be summarised as under :-
a) Both of them have not committed the murder of Shivaji
and that Shivaji was suffering from blood pressure and had,
therefore, suffered terminal cardio respiratory arrest.
b) Shrimant had suffered a head injury on the date of the
incident and he was not involved in the commission of the offence.
c) The entire Basti knew about the love affair of the
daughter of Kundlik. Kundlik as well as Basvantabai suspected
Shrimant's role in spreading the said story.
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d) Shrimant, Kundlik and Pandit are real brothers and
Shrimant could never develop the intention of murdering any of his
brothers, much less Shivaji who is the son of Pandit.
e) Though it has come in the evidence of PW6, I.O. and
PW3 brother Pandit that a crowd had gathered when Shivaji was
found with a bleeding injury, not a single person from the crowd
was examined by way of an independent witness.
f) Though PW6 stated in his testimony that he had inquired
with the people who had gathered and had recorded their
statements, none of them were examined as witnesses.
g) Two witness namely PW3 Pandit Mukinda Pawar and
PW4 Basvantabai w/o Kundlik Mukinda Pawar are interested
witnesses.
h) Though it is the case of the prosecution that an
argument took place in between the accused and Kundlik, the
testimony of Kundlik has not been recorded before the Court.
i) PW4 Basvantabai, being the wife of Kundlik, has been
projected as an eye witness and that she is a manufactured
witness.
j) Since PW3 Pandit and Kundlik had aligned with each
other, Pandit has tendered a false testimony against the accused.
k) Since a false charge has been leveled upon the accused,
Kundlik did not step into the witness box to support a false charge.
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l) Even if it is assumed that Shrimant used a knife which
caused the death of Shivaji, it is obvious that Shrimant did not have
any intention of inflicting any such injury which was likely to cause
the death of any person who may be inflicted with a injury.
m) The fact that Shrimant neither carried a knife with him,
nor did he himself fetch a knife, supports his contention that there
was no intention on his part to kill any person.
n) Though Dashrath is alleged to have fetched a knife, he
himself has not used the knife and it can be said that he may have
brought the knife only to use it as a threat against Kundlik.
o) The statement of Pandit, the first informant / PW3, in
his testimony that the accused started scolding and abusing PW3
and the deceased, is not set out in the FIR. The deposition of PW3
is, therefore, an improvisation and will have to be ignored.
p) The murder weapon - knife was never shown to the
autopsy surgeon and no impression was sought by the I.O. from
the autopsy surgeon PW7 as to whether such knife could have
caused the injury that is said to have killed Shivaji.
q) There are no blood stains on the clothes of accused
No.2 Dashrath, in as much as, there is no oral evidence to indicate
that Shrimant and Dashrath planned to use a knife and that
Dashrath brought a knife for executing such plan or that he fetched
the knife on the dictate of Shrimant and handed over the knife so
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as to enable Shrimant to stab Shivaji.
r) The gravity of the verbal dispute between the accused
and Kundlik had not reached such a proportion which would have
agitated Dashrath so as to bring the knife from his house.
s) The trial Court has drawn an unsustainable conclusion
in paragraph 35 (ii) and (vii) of the impugned judgment.
t) Neither Section 34 nor section 109 of the IPC could be
attracted.
u) If at all this Court concludes that Shrimant had caused
the death of Shivaji, such act would, at the most, fall under Part II
of Section 304 of the IPC.
v) In the absence of any plan or conspiracy or a common
intention or common object in the minds of both the accused,
Section 34 and Section 109 of the IPC would not be attracted and
accused No.2 Dashrath would be entitled for an acquittal.
5. The learned prosecutor has vehemently contended that
there are two eye witnesses. Merely because they are related to
each other would not mean that they could be branded as
interested witnesses. If the father of the deceased and PW4
Basvantabai have seen Shrimant stabbing Shivaji, their testimony
cannot be discarded merely because PW3 is the father of the
deceased and PW4 being the wife of Kundlik.
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6. The learned prosecutor further submits that the blood
detected on the clothes of the deceased and Shrimant and on the
knife, was of human origin. The blood group on the clothes, labeled
as Exhibit Nos. 1 to 5 was of 'A' group. Therefore, both the accused
can be safely said to have been guilty of the death of Shivaji. He
further submits that the two eye witnesses PW3 and PW4 clearly
establish the guilt of the accused. Since PW3 and the deceased
tried to pacify Shrimant and Dasharath, Shrimant used the knife for
silencing Shivaji for showing allegiance towards Kundlik and since
Kundlik and his brother Pandit had aligned themselves against
Shrimant. He, therefore, submits that the conviction of both the
accused calls for no interference.
WHETHER DEATH OF SHIVAJI IS HOMICIDAL ?
7. The inquest panchanama Exhibit-55/C recorded under
Section 174 of the Cr.P.C. indicates that Shivaji had suffered a stab
injury in his abdomen. He has profusely bled and as a consequence
of which, he had died during his journey to the hospital.
8. Exhibit-69/C is the memorandum of the postmortem
examination of the deceased Shivaji. The stab injury suffered by
him is set out in clause 17. The knife had penetrated the abdomen
of Shivaji below the umbilicus and had further penetrated into his
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intestines. The dimensions of the injury were set out as 8 cm in
vertical direction, 4 cm in horizontal direction and 10 cm in depth.
The report indicates at clause 18(a) that the injury was ante-
mortem. The cause of death was mentioned as terminal cardio -
respiratory arrest due to hypovolumic shock due to vital injury.
9. Dr. Uddhav Narharrao Shinde, PW7, was examined at
Exhibit-68/C. He has referred to the postmortem report and he has
supported its contents. He has specifically stated that the injury
was sufficient to cause the death of Shivaji and the same was ante-
mortem. In his cross examination, he perused the knife and has
deposed that the injury was caused in a vital area and the said
knife could have caused the said injury. Thus, he supported his
statement in his examination-in-chief that the injury referred by
him in the postmortem report is possible by the use of the knife
shown to him.
10. We have also perused the report of the chemical analyst
submitted by the Regional Forensic Science Laboratory and
considering the said report in the back drop of the oral and
documentary evidence, it is crystal clear that the stab injury
suffered by Shivaji had led to his death. We, therefore, have no
hesitation in concluding that Shivaji has suffered a homicidal death.
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WHETHER SHRIMANT HAS INFLECTED THE STAB INJURY TO THE
DECEASED ?
11. We have perused the deposition of PW1 Laxman
Tukaram Tambade Exhibit-27. He is a panch witness. He has
deposed that the clothes worn by Shrimant were seized in his
presence. The second panch witness Angad Hanumant Kale was
also along with him. The clothes of accused were stained with
blood. He identified the contents of the seizure memo Exhibit-28.
Since he stated that he was preempted by PW6 that the clothes of
the accused are to be recovered, the prosecutor has cross
examined him, though he has admitted the contents of the
memorandum of the accused under Section 27 of the Evidence Act,
marked Exhibit-29. He denied that he had travelled in the police
vehicle to the place from where the knife was brought out by the
accused. He denied that Shrimant had taken out the knife from the
back yard of his house.
12. Though PW1 was declared hostile, we find from his
testimony that Shrimant had volunteered to show the place where
he had hidden the knife. Based on the memorandum Exhibit-29
and the testimony of PW1 which supports Exhibit-29, it appears to
us that Shrimant had shown the exact place where the knife was
hidden.
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13. The learned advocate for the appellants strenuously
submits that the manner in which the memorandum form was
written, would not amount to a statement under Section 27 of the
Evidence Act. So also, assuming that the statement was made by
Shrimant, he was kept in the lock up when he made the statement
in the presence of the panch. Such statement is involuntary and
under duress. Even under Section 313 of Cr.P.C., he has answered
question No. 36 as regards the said memorandum by saying "It is
false". He has denied that he led the police party to the spot from
where he dug out the soil and brought out the knife in the presence
of two panch witnesses. He has also denied that the knife carried
blood stains.
14. We, however, find that he has signed (marked as
Exhibit-30) below the portion marked Exhibit-29 which is his
statement in the accused memorandum form. The testimony of the
I.O. and the panch in our view, proves that the knife article-8 was
dug out from the spot behind the hut of Shrimant. Considering
Section 27, any fact is supposed to be as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police officer and if such information
relates distinctly to the fact thereby discovered, the prosecution has
to prove the said discovery. The portion marked at Exhibit-29 in
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the memorandum is reproduced as being the words of Shrimant,
though the earlier portion is inadmissible in evidence, as follows :-
"vkEgk ueqn iapkle{k ;krhy vkVd vkjksih ukes Jhear mQZ okaV;k
eksfdank iokj ;kus iksyhl dLVMh fjekaM e/;s vlrkauk iks-LVs-
fljlkyk ykWdvi e/kqu fuosnu dsys dh eh fnukad 25@7@12 jksth
vkB rs uÅ oktrsps lqekjkl iqr.;k f'kokth iaMhr iokj ;kps iksVkr
yks[kaMh lqjh [kqilqu ftos ek:u R;kpk [kwu dsyk R;kr okijysyh
yks[kaMh lqjh eh ek>s ik.;kps 'ksM ps ikBhekxs iq:u Bsoyh vkgs rh
dk<qu nsrks pyk"
15. We have considered the testimony of the informant PW3
and PW4, both being eye witnesses. They have also identified the
knife Article-8. The I.O. PW6 has stood by the contents of Exhibit-
29, the recovery and seizure of the knife and the autopsy surgeon
PW7 who was not shown the knife earlier, has perused the same
before the Court and has expressed an opinion that the injury
mentioned in the postmortem report can be caused by such a knife.
There is no material before us on the basis of which, we could
conclude that the testimony of PW3 and PW4 deserves to be
discarded. Based on the substantive ocular evidence, we conclude
that Shrimant had used the knife to stab Shivaji which caused his
death.
WHETHER THE OFFENCE COMMITTED BY SHRIMANT WOULD FALL
UNDER SECTION 302 OR PART I OR PART II OF SECTION 304 OF
THE IPC
16. The learned prosecutor has strenuously contended that
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section 302 of the IPC clearly stands attracted as both the accused
had specifically planned the attack on Shivaji. Accused No.2
Dashrath has fetched the knife from his house so as to be handed
over to accused No.1 Shrimant. It was preplanned that Shrimant
would use the knife to stab Shivaji and both had intended to cause
the death of Shivaji. Reliance is also placed on the testimony of
PW7 autopsy surgeon who has stated that the injury shown to him
was sufficient to cause the death of Shivaji.
17. We have perused the testimony of Basvantabai PW4
who has stated that both the accused commenced a verbal
exchange with her husband Kundlik on the issue of partition of the
agricultural land. We have believed the statement of Basvantabai
being an eye witness and having corroborated the testimony of PW3
informant that Shrimant had snatched the knife from Dashrath and
stabbed Shivaji. To this extent, the contents of the FIR and the
substantive evidence of PW3 and PW4 established that Shrimant
had stabbed Shivaji.
18. The issue before us is whether Shrimant and Dashrath
had preplanned the attack on Shivaji which would have attracted
Sections 34 and 109 of the IPC, as has been held by the trial Court.
Taking into account the evidence before us, we are of the view that
Section 109 of the IPC prescribes punishment for abetment, if the
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act abetted is committed.
19. The issue before us is as regards whether the act
committed by the accused would be covered by Section 304.
Sections 299, 300, 302 or 304 of the IPC read as under :
299. Culpable homicide --
Whoever causes death by doing an act with the intention
of causing death, or with the intention of causing such
bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide.
300. Murder --
Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is
caused is done with the intention of causing death, or--
Secondly -- If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or--
Thirdly -- If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, or--
Fourthly -- If the person committing the act knows that it
is so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
Exception 1. - When culpable homicide is not murder. -
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by
mistake or accident.
The above exception is subject to the following
provisos:
First. - That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.
Secondly. - That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such public
servant.
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Thirdly. - That the provocation is not given by anything
done in the lawful exercise of the right of private defence.
Explanation. - Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact.
Exception 2. - Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of
private defence of person or property, exceeds the power
given to him by law and causes the death of the person
against whom he is exercising such right of defence
without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such
defence.
Exception 3. - Culpable homicide is not murder if the
offender, being a public servant or aiding a public servant
acting for the advancement of public justice, exceeds the
powers given to him by law, and causes death by doing an
act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public
servant and without ill-will towards the person whose
death is caused.
Exception 4. - Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel
or unusual manner.
Explanation. - It is immaterial in such cases which party
offers the provocation or commits the first assault.
Exception 5. - Culpable homicide is not murder when the
person whose death is caused, being above the age of
eighteen years, suffers death or takes the risk of death
with his own consent.
302. Punishment for murder --
Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
304. Punishment for culpable homicide not amounting
to murder --
Whoever commits culpable homicide not amounting to
murder, shall be punished with imprisonment for life, or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the
act by which the death is caused is done with the
intention of causing death, or of causing such bodily
injury as is likely to cause death;
or with imprisonment of either description for a term
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which may extend to ten years, or with fine, or with both,
if the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or
to cause such bodily injury as is likely to cause death.
20. The evidence before us indicates that a verbal exchange
began between both the accused on one side and Kundlik on the
other side. There is no iota of evidence to indicate that there was
an exchange of blows or physical contact between the accused and
Kundlik. Ocular evidence before us indicates that neither of the two
accused had carried a knife while entering into a verbal dual with
Kundlik. So also, the entire evidence on record indicates that
neither PW3 nor his deceased son Shivaji were present when the
arguments between the accused and Kundlik commenced. This,
therefore, rules out the possibility of both the accused having
planned an attack on Shivaji or having developed a common
intention and object to kill Shivaji.
21. Evidence before us indicate that Kundlik made a
telephone call to PW3 Pandit, thereby informing him about the
arguments between the accused and Kundlik. Pandit responded to
the telephone call by reaching the place where the three were
quarreling. He took deceased son Shivaji along with him so as to
cool down the accused and end the quarrel. Neither of the accused
had any idea that Kundlik would call Pandit and Pandit would bring
his deceased son along with him to sort out the dispute. It is
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purely a coincidence that Kundlik made a call to Pandit and Pandit
was accompanied by Shivaji. Kundalik could have called any of his
other two brothers namely Sambhaji or Balbhim. As such, these
circumstances would clearly indicate that neither of the accused had
anticipated the arrival of Pandit and / or Shivaji.
22. Notwithstanding above, there could be circumstances,
which could have generated a heated argument and led Dasharath
to bring a knife either under orders of Shrimant or to hand over the
knife to Shrimant to be used against either Kundlik or Pandit or
Shivaji. The fact remains that as Pandit being the eldest brother
had tried to pacify Shrimant, Dashrath left the scene to go to his
house and returned with a knife. Evidence indicates that Shrimant
snatched the knife from the hands of Dashrath and stabbed Shivaji.
23. The prosecution has put forth the case that Shrimant
and Dashrath began scolding and abusing Pandit and Shivaji and,
hence Shrimant, with predetermination, stabbed Shivaji. We have
perused the FIR filed by PW3 Pandit after 16 hours of the incident,
wherein the informant Pandit has mentioned that he and his
deceased son Shivaji were trying to pacify the accused when
Dashrath went inside his house and brought out a knife, Shrimant
snatched the knife (R;kP;k gkrkrhy lqjh Jhear eksfdank iokj ;kus fgLdkowu ?ksowu )
and delivered a single stab injury to Shivaji in the abdomen. It is
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nowhere stated in the FIR that after PW3 and deceased Shivaji
began pacifying the accused, they had launched an abusive attack
upon Pandit and Shivaji and therefore, Shrimant had stabbed
Shivaji. We have compared this omission from the FIR with the
testimony of the informant PW3 in which he has stated in paragraph
No.2 as "I say that Shrimant and Dashrath started scolding and
abusing us". We have also compared the said statement with the
statement made in paragraph No.9 by the informant that " I have
told to police that Shrimant and Dashrath abusing and scolding
myself and my son. I cannot assign reason why this fact was not
mentioned in my complaint".
24. This would clearly establish that the informant /
complainant himself had not stated in his FIR that the accused had
started abusing him and his son. The last sentence in the FIR
signed by PW3 would indicate that after the FIR was written as per
the narration of PW3, it was read out to him and he agreed that it
was written exactly as per his narration. We, therefore, find that
PW3 had attempted to improvise his statement in the FIR, while
recording his testimony. We, therefore, find it appropriate to
discard the said improvisation notwithstanding the fact that PW4
Basvantabai, wife of Kundlik, who was watching from a distance
had stated that the accused were abusing PW3 and the deceased.
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25. The learned advocate for the appellants has contended
that the appellants did not preplan the attack and had not
developed a common intention and object to kill Shivaji. It is
reiterated that they had no idea that Kundalik would call PW3 and
his deceased son for help.
26. We find from the evidence before us that PW3 and the
deceased are not alleged to have either attacked the accused or
had launched a verbal abusive attack on them so as to invite a
reaction of aggression from any of the accused. There is no
evidence which indicates that Shrimant directed Dashrath to fetch a
knife or Dashrath brought out a knife to enable Shrimant to stab
Shivaji. It is established through the evidence that Dashrath came
with a knife and was simply holding it in his hand when Shrimant
suddenly snatched it and stabbed Shivaji. There is absolutely no
evidence before us as to what triggered such an extreme reaction
from Shrimant so as to stab Shivaji when there is no evidence that
Shivaji had entered the fray and had antagonised the accused to an
extent that Shrimant would stab him. The testimony of PW4
Basvantabai indicates that PW3 had only suggested to Shrimant
that their mother is still alive and it is only after her demise that the
agricultural land could be partitioned. Assuming that this
antagonised Shrimant since he felt that PW3 was siding with
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Kundlik, we find it quite intriguing that Shrimant suddenly stabbed
Shivaji without causing any injury to PW3 Pandit or even Kundlik.
We are, therefore, of the view that Shrimant and Dashrath had not
preplanned an attack on Shivaji.
27. Exception 4 below Section 300 of the IPC indicates that
culpable homicide would not be murder if it is committed without
premeditation, in a sudden fight, in the heat of passion upon a
sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner. Evidence before
us indicates that Shrimant inflicted a single blow on a non-vital
part. He did not attack either PW3 Pandit or Kundlik, with whom he
had an argument. We find from Part II of Section 304 of IPC that a
convict would be liable to suffer imprisonment of either description
for a term which may extend to 10 years or with fine or with both,
if the act is done with the knowledge that it is likely to cause death,
but is without any intention to cause death or to cause such bodily
injury as is likely to cause death. Shrimant could not have even
imagined that Pandit and Shivaji would be called by Kundlik.
28. Considering the law laid down by the Hon'ble Apex
Court in Shivaji Sahabrao Bobade and Another Vs. State of
Maharashtra [(1973 2 Supreme Court Cases 793], we do not find
the testimony of these two witnesses to be so convincing that we
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would draw a conclusion that both the accused had preplanned the
attack on Shivaji with the common intention and object of causing
his death. We, therefore, find that the act of Shrimant would fall
within the second part of Section 304 of IPC.
ROLE OF ACCUSED NO.2 DASHRATH
29. Section 34 of the IPC reads thus :-
34. Acts done by several persons in furtherance of
common intention --
When a criminal act is done by several persons in
further ance of the common intention of all, each of
such persons is liable for that act in the same
manner as if it were done by him alone.
30. It is obvious that accused No.2 Dashrath would have to
face conviction, if the act of murdering Shivaji by Shrimant can be
said to be done in furtherance of common intention of both. In the
matter of Suresh and another Vs. State of U.P. [AIR 2001 SC 1344] ,
it has been held that Section 34 of the IPC would recognize the
principle of vicarious liability in criminal jurisprudence. It would be
a rule of evidence and does not create a substantive offence.
31. Having drawn a conclusion that elements like common
intention and object are missing from the offence committed by
Shrimant in the peculiar facts and circumstance of this case, we are
of the considered view that Section 34 would not be attracted. We
find from the evidence before us that Dashrath appears to have
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rushed back to his house to fetch a knife, having been excited or
apprehending trouble. Not a single blow or physical contact had
occurred at the first instance amongst the five persons, after PW3
and Shivaji had responded to the call of Kundaik. Dashrath had not
intimidated anybody. It is only within the knowledge of Dashrath as
to why he rushed back to the house to fetch a knife and it is
obvious that he had no idea that Shrimant would suddenly snatch
the knife from his hand. Probably, Dashrath had intended to show
courage of wielding a knife to deter Kundlik or Pandit. He is an
illiterate 24 years old immature villager and may not have
apprehended the snatching of the knife from his hand by his father.
He has been convicted only on account of Section 34.
32. We find that the following conclusion of the trial Court
to be unsustainable :-
"35[vii]. The prosecution has proved its case
from probability to possibility and possibility to more
than 50% certainty by direct evidence against both
the accused. Both the accused have common
intention to cause death of deceased Shivaji. Here in
this case accused No.2 Dashrath has abetted his
father Shrimant in stabbing knife in the abdomen of
deceased Shivaji. He has brought a knife from the
house. It was taken by his father accused No.1
Shrimant and pierced it in the abdomen of deceased
Shivaji. The role played by accused No.2 Dashrath
making him liable for the commission of offence not
only under Section 34 of I.P.C. but also under Section
109 of I.P.C."
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33. We are unable to agree with the conclusion of the trial
Court that "the prosecution has proved its case from probability to
possibility and possibility to more than 50% certainty by direct
evidence against both the accused. Both the accused have common
intention to cause death of deceased Shivaji" . It is obvious from
this conclusion that the trial Court has failed to discern in between
the sudden act of stabbing Shivaji and a planned attack on the
deceased with a common intention and object. The trial Court
failed to notice that Pandit and Shivaji had suddenly entered the
scene which was not even apprehended or imagined by both the
accused. The trial Court has wrongly concluded in para 35(vii) that
Dasharath brought a knife and it was taken by his father to pierce
Shivaji. It lost sight of the fact that Dashrath was only holding the
knife in his hand which was suddenly snatched by Shrimant.
34. In view of the above, this appeal is partly allowed as
under :-
ORDER
a) Clauses [1] and [2] of the impugned order stand modified.
b) Accused No.1 Shrimant @ Wantya s/o. Mokinda Pawar stands convicted under Section 235(1) of the Cr.P.C. for 24 of 25 ::: Uploaded on - 08/12/2020 ::: Downloaded on - 09/02/2021 13:58:06 ::: 903-CrApl-119-14.odt the offence punishable under Section 304 (Part II) of the IPC and shall be sentenced to suffer rigorous imprisonment for the period that he has already spent in jail, which is eight years, five months and five days. The direction to pay fine of Rs.500 is maintained.
c) Accused No.2 Dashrath s/o. Shrimant Pawar stands acquitted in crime No.70/2012 under Section 302 read with Section 34 of the IPC.
d) Both the accused shall, therefore, be set at liberty, if their custody is not required in any other offence. (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.) SVH 25 of 25 ::: Uploaded on - 08/12/2020 ::: Downloaded on - 09/02/2021 13:58:06 :::