High Court
Facts
Criminal Appeal No.132/2019:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.132 OF 20191)Bansilal Supadu More,Age 19 years, Occu. LabourR/o Nimkheda, Tal. Dharangaon,District Jalgaon2)Supadu Abhiman More,Age 45 years, Occu. Labour,R/o Nimkheda, Tal. Dharangaon,District Jalgaon… APPELLANTS(Orig. Accused)VERSUSThe State of Maharashtra (Copy to be served on P.P.,High Court of Bombay,Bench at Aurangabad) … RESPONDENT.......Mr. N.K. Tungar, Advocate for appellant (appointed)Mr. S.D. Ghayal, A.P.P. for respondent ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 8th March, 2024Date of pronouncing judgment : 13th March, 2024JUDGMENT (PER R.G. AVACHAT, J.) The challenge in this appeal is to a judgment ofconviction and order of sentence, dated 20/12/2018, passed bylearned Additional Sessions Judge, Jalgaon in Sessions CaseNo.121/2016. Vide impugned judgment and order, the appellantswere convicted for the offence punishable under Section 302 read Criminal Appeal No.132/2019:: 2 ::with Section 34 of the Indian Penal Code and therefore, sentencedto suffer imprisonment for life and to pay fine of Rs.1000/- eachwith default stipulation. They are, therefore, in this appeal beforeus. 2.Facts giving rise to the present appeal are as follows :- The First Information Report (F.I.R.-Exh.23) was lodgedby P.W.3 Arun, father of Ravindra (deceased). The case of theprosecution, as is disclosed from the police papers and theevidence before the Trial Court, is that, the appellants are son andfather duo. They were residents of village Tarkhede, TalukaDharangaon, District Jalgaon. The deceased was also residing inthe same village. There is “Maruti Temple” in the village. Thedeceased had asked Supadu @ Subhash (appellant No.2) not toenter the temple with footwear on. Bansilal (Accused No.1), son ofaccused No.2 was with him (A/2). It appears that, the appellantsgot annoyed. A/1 Bansilal pushed Ravindra down. He sat on hischest. A/1 picked up a stone (about 7 Kgs. in weight) lying in thenearby and threw it on the stomach of Ravindra. The incident waswitnessed by Manoj (P.W.6) and some other villagers. Manoj(P.W.6) immediately rushed to the house of Ravindra and informedit to his father, P.W.4 Arun. The informant immediately rushed tothe scene. He secured a four-wheeler. Some of the villagers, Criminal Appeal No.132/2019:: 3 ::P.W.6 Manoj, P.W.10 Bhoma and P.W.11 Samadhan accompaniedhim to take Ravindra to Dipika Hospital, Jalgaon for bettertreatment. The Medical officer there told that it would costRs.80,000/- for treatment. The informant did not have money withhim. They, therefore, took Ravindra to Dhule. The Medical Officerat Dhule extended some treatment. Ravindra was, however, thenshifted to Dharangaon Government hospital, whereat he breathedhis last on the following morning.3.P.W.4 Arun lodged the F.I.R. (Exh.23) against theappellants. A crime vide C.R. No.115/2016 for offences punishableunder Sections 302 read with Section 34 of the Indian Penal Codewas registered. Scene of offence panchanama (Exh.28) wasdrawn. The appellants were arrested. Mortal remains of thedeceased were subject to autopsy. Clothes on the person of theappellants and the deceased were seized. Statements of thepersons acquainted with the facts and circumstances of the casewere recorded. Upon completion of the investigation, theappellants were proceeded against by filing a charge sheet beforethe learned Judicial Magistrate, First Class, Dharangaon. Thelearned Judicial Magistrate, First Class, Dharangaon committed thecase to the Court of Sessions, Jalgaon for trial in accordance withlaw. The case in turn was assigned to the Court of learnedAdditional Sessions Judge (Trial Court). The Trial Court framed
Legal Reasoning
Criminal Appeal No.132/2019:: 9 ::grievous hurt with a dangerous weapon i.e. a stone of 7 Kgs. inweight. In our view, therefore, the appellant No.1 should have beenconvicted for the offence punishable under Section 323 of theIndian Penal Code and the appellant No.2 should have beenconvicted for the offence punishable under Section 326 of theIndian Penal Code. For all these reasons, we find interference withthe impugned order of conviction and sentence is warranted.16.In the result, the appeal partly succeeds. Hence theorder : O R D E R(i)The Criminal Appeal is partly allowed.(ii)The order of conviction and consequential sentence foroffence punishable under Section 302 read with Section 34 ofthe Indian Penal Code, passed by learned AdditionalSessions Judge, Jalgaon in Sessions Case No.121/2016,dated 21/12/2018 is hereby set aside. The appellants standacquitted thereof. (iii)Instead, the appellant No.1 is convicted for the offencepunishable under Section 323 of the Indian Penal code andtherefore sentenced to suffer rigorous imprisonment for one(1) year and to pay fine of Rs.1000/- (Rupees one thousand), Criminal Appeal No.132/2019:: 10 ::in default of payment of fine, he shall undergo R.I. for threemonths. (iv)The appellant No.2 is convicted for the offence punishableunder Section 326 of the Indian Penal Code and thereforesentenced to suffer rigorous imprisonment for seven (7) yearsand to pay fine of Rs.3000/- (Rupees three thousand), indefault of payment of fine, he shall undergo R.I. for threemonths.(v)If the appellants have served out the sentence which they aredirected to undergo by this order, they be set at libertyforthwith if not required in any other case.(vi) The Criminal Appeal stands disposed of.(vii)Fees of learned Advocate Mr. Tungar, appointed for theappellants is quantified at Rs.10,000/- (Rupees tenthousand).(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Criminal Appeal No.132/2019:: 4 ::Charge (Exh.03). The appellants pleaded not guilty. Their defencewas of false implication.4.To bring home the charge, the prosecution examined16 witnesses and produced in evidence number of documents. TheTrial Court, on appreciation of the evidence, convicted both theappellants and consequently sentenced them as stated above.5.Heard. Learned counsel for the appellants appointedthrough Legal Aid would submit that, even if we accept theprosecution evidence as it is, it is not an offence punishable underSection 302 read with Section 34 of the Indian Penal Code. A lot oftime was spent in securing medical treatment to the deceased. Theappellants did not have intention to commit murder. Even there isnothing to indicate the appellants to have prior meeting of mind.Learned counsel ultimately urged for allowing the appeal, at leastpartly.6.The learned A.P.P. would, on the other hand, submitthat, both the appellants were equally guilty of the offence ofmurder. The appellant No.1 sat on the person of the deceased.Same time appellant No.2 threw a heavy stone on the person of thedeceased. The same caused rupture of spleen The intention toeliminate the deceased was writ large. Learned A.P.P. ultimately Criminal Appeal No.132/2019:: 5 ::urged for dismissal of the appeal.7.We have considered the submissions advanced.Perused the evidence on record. Let us advert thereto andappreciate the same.8.P.W.16 Dr. Dinesh conducted the autopsy. He noticedfollowing injury on the person of the deceased :(1)Contusion seen over abdomen from umbilicus to lefthypogastrium.9.In the opinion of P.W.16 Dr. Dinesh, the probable causeof death was – due to cardio respiratory arrest due to haemorrhagicshock due to rupture of spleen because of blunt trauma overabdomen. In his opinion, the death was possible because of theassault with a stone shown to him.10. It, however, appears that, opinion of P.W.16 Dr. Dineshwas not solicited as to whether the said injury was sufficient in theordinary course of nature to cause the death of the victim Ravindra.11.The evidence of P.W.1 Onkar, P.W.2 Pramod, P.W.3Murlidhar and P.W.5 Nilesh is not adverted to in extenso since the Criminal Appeal No.132/2019:: 6 ::same relate to the panchanamas relating to seizure of clothes ofthe appellants and the deceased (P.W.1 and P.W.3). P.W.2 Pramodis a witness to inquest panchanama (Exh.19). While evidence ofP.W.5 Nilesh is in proof of panchanama as to the crime scene(Exh.28). Same is the case about the evidence of P.W.7 Bapu, whowas present while the F.I.R. was recorded.12.P.W.4 Arun (informant), father of the deceased lodgedthe F.I.R. His evidence on the point of incident is hear-say sinceaccording to him, it was P.W.6 Manoj who came to his residence bylittle past 8.00 p.m. and informed the appellant to have assaultedRavindra (deceased). Evidence of P.W.4 Arun indicates that, he,therefore, rushed to the scene of offence. He saw Ravindra waswailing. He and some other villagers secured a four-wheeler andthen took the injured first to Jalgaon.13.P.W.6 Manoj, P.W.10 Bhoma and P.W.11 Samadhanare the eye witnesses to the incident. Their evidence indicate thatthe quarrel between Ravindra on one hand and the appellants onthe other ensued just outside Maruti Temple. The reason behindthe quarrel was Ravindra to have asked appellant Bansilal not toenter the temple with footwear on. The evidence of these threewitnesses is consistent with each other to state that the appellantBansilal pushed Ravindra down. He sat on his person. The Criminal Appeal No.132/2019:: 7 ::appellant Subhash picked up a stone lying nearby and threw it onthe stomach of the deceased. During cross-examination of thesethree witnesses, nothing could be elicited to doubt veracity of theirevidence. As such, the evidence of these 3 witnesses lead us toconclude that A/1 pushed Ravindra down. He sat on his person. A/2 then picked up a stone (7 Kgs. in weight) and dropped on thestomach of Ravindra. 14.The question is, whether these proved facts constitutean offence punishable under Section 302 read with Section 34 ofthe Indian Penal Code. Although the appellants are father – sonduo, there is nothing to indicate them to have any prior enmity withthe deceased or his family members. It was a sudden quarrel overdeceased asking one of the appellants not to enter the temple withfootwear on. It took about 50 minutes to inform father of thedeceased about the incident. There is further evidence to indicatethat about 20 minutes were required to secure a four-wheeler.Thereafter the injured was rushed to Jalgaon, a long distance fromthe place of incident. He was taken to Dipika Hospital, Jalgaon. Itis in the evidence of the informant and P.W.6 Manoj, P.W.10 Bhomaand P.W.11 Samadhan that the Medical Officer there told theinformant that he would be required to pay Rs.80,000/- towardsmedical expenditure. The informant did not have money. It is veryunfortunate. It even pains us. Ravindra was then taken to Criminal Appeal No.132/2019:: 8 ::Sonography Centre for Sonography. P.W.12 Dr. Sanjay and P.W.13Dr. Sunil are the Medical Officers on this point. Since the informantdid not have funds to incur medical expenditure, they brought theinjured first to Dhule, again a long distance, from Dhule to Jalgaon,he was brought to Dharangaon Government Hospital, whereat hebreathed his last on the following morning. In our view, the delay inextending treatment to the injured might have accelerated hisdeath.15.It has already been observed above that there was noevidence to indicate the appellants to have prior concert (meeting ofmind). The incident took place all of a sudden. The overt actattributed to appellant No.1 is that he pushed Ravindra down andsat on his person. He is not attributed with any overt act like anassault. Thereafter appellant No.2 picked up a stone lying nearbyand hit on the stomach of the deceased. It is even difficult toattribute A/2 knowledge that because of throwing a stone on thestomach of the injured he may succumb. In our view, therefore, firstit is not a case of invoking Section 34 of the Indian Penal Code.Both the appellants acted in a spur of moment. True, the commonintention can be developed in the spot itself. It’s a case underSection 35 of the Indian Penal Code. A/1 could be said to havecommitted an offence punishable under Section 323 of the IndianPenal Code. A/2 could be inferred to have intended to cause a