JUDGMENT
Vishnu Sahai, J.
1. Since all these matters arise out of the same incident, and a common impugned Judgment, we are disposing them off by one Judgment.
2. Accused Ramhari Hasabe, Pandurang Dadu Patil, Krishnadeo Namdeo Shinde and Ashok Shripati Shinde were charged by the Additional Sessions Judge, Sangli for an offence punishable under Section 302 read with 34, I.P.C., in Sessions Case No. 9 of 1984.
The Additional Sessions Judge, Sangli convicted Pandurang Dadu Patil for an offence punishable under Section 326, I.P.C. and sentenced him to undergo one year’s R.I. and to pay a fine of Rs. 1000/- in default to suffer one year’s R.I. Criminal Appeal No. 975 of 1984 has been preferred by Pandurang Dadu Patil against his aforesaid conviction and sentence.
While admitting Criminal Appeal No. 975 of 1984, and granting bail to Pandurang Dadu Patil, Khatri, J. was pleased to issue notice for enhancement of sentence and Criminal Revision Application No. 5 of 1985 arises out of the said notice.
Criminal Appeal No. 998 of 1984 has been preferred by the State of Maharashtra against acquittal of all the four accused for the offence punishable under Section 302 read with 34, I.P.C.
Criminal Appeal No. 999 of 1984 has been preferred by the State of Maharashtra for enhancement of the sentence of the accused persons. We have already mentioned the sentence which the Additional Sessions Judge, Sangli, had awarded to the appellant Pandurang Dadu Patil. It is pertinent to point out that he had found the accused Ramhari Hasabe, Krishnadeo Shinde, and Ashok Shinde guilty of an offence punishable under Section 324 r/w 34, I.P.C. and had sentenced them to undergo S.I. for one day and to pay a fine of Rs. 1000/-, in default suffer R.I. for one year each.
3. Briefly stated the prosecution case runs as under :-
Accused Ramhari Hasabe and P.W. 10 Bhagwan are real brothers. They lived in village Hivare, Taluka Khanapur, in District Sangli. They had inherited some landed property. They owned a house in the village wherein Bhagwan used to reside with his mother and wife. Ramhari was residing in the farm-house situated in the land known as “Wanyach Mala”. It is said that there was no love-lost between Ramhari and Bhagwan and the former wanted to grab the share of the property of the latter. It is said that Ramhari refused to give Bhagwan, the share in the joint family property. Ramhari is said to have sold one of the pieces of land to accused Pandurang contrary to the wishes of Bhagwan. All this aggravated bitterness between him and Bhagwan. Relations had degenerated to such an extent that Ramhari, Pandurang and his father assaulted Bhagwan and the latter had initiated criminal proceedings. It is said that Bhagwan took shelter in the house of the deceased-Shankar. It is also said that Bhagwan took the stand that he had been given one acre of land from “Wanyach Mala” and he used to cultivate the said land with the help of Shankar and his son Tanaji, the complainant P.W. 3.
On 25-9-1983, at about 2 p.m. Bhagwan went to Wanyach Mala for reaping hybrid jowar crop along with his mistress Shantabai and the deceased Shankar. At that time, accused Ramhari, Pandurang, Ramhari’s sister’s son Krishnadeo and Ramhari’s brother-in-law Ashok came there. All of them started abusing Shankar. Shankar asked Bhagwan to inform Tanaji. Accordingly, Bhagwan went to the house and came running along with Tanaji. While they were on their way, they found that accused Pandurang, hurled an stone on Shankar which struck him near his left ear and eye and resulted in his falling down. They also saw that Ramhari and Ashok were assaulting Shankar with stones and Krishnadeo was assaulting him with stick on the back. It is said that Shantabai mistress of Bhagwan, P.W. 10, who was standing nearby raised an alarm hearing which Tulsiram and some others came on the place of the incident and saw the incident. Thereafter, the accused persons are said to have run away.
It is said that Tulsiram and others found that Shankar was lying unconscious and blood was oozing out from his eyes, mouth and shoulder. They tried to give him some water but, he did not drink it. Thereafter, Shankar was removed on a bullock-cart and taken to Khanapur and from there to Vita. He succumbed to his injuries in Primary Health Dispensary, Vita.
4. The evidence of Dr. Madhukar Kamble, P.W. 8 is that on 25-9-1983, at 5.50 p.m. he examined Shankar. He found him unconscious and in a gasping condition. He expired within 10 minutes.
5. The First Information Report of the incident was lodged by Tanaji P.W. 3 at Vita Police Station at 6 p.m. the same day. On its basis, PSI Madhukar Chalke P.W. 11 registered an offence, vide Exhibit 23.
6. The investigation was conducted in the usual manner by PSI Chalke, P.W. 11. After registering the FIR, he prepared the inquest panchanama and sent the corpse for autopsy. Next day, he prepared a panchanama of the place of the incident and attached stones stained with blood. He also took sample of the blood stained earth in his possession. Same day, he arrested the accused persons, and took into possession under a panchanama, the blood stained clothes which accused Ramhari was putting on. On 30-9-1983, he handed over the investigation to ASI Patil but, again took it back from him on 4-10-1983. He sent the recovered articles to the Chemical Analyst. On 31-12-1983, he submitted a charge-sheet against the accused.
7. Going backwards, the autopsy on the dead body of the deceased-Shankar was conducted on 26-9-1983 by Dr. Madhukar Kamble, P.W. 8. On the corpse, Dr. Kamble found the following ante-mortem injuries :-
“(1) Black Eye (Lt) one inch periorbital tissue swollen and black in colour.
(2) C.L.W. over (Rt) supra scapular region 4 cms. x 1 cm. x 1 1/2 cm. surrounding areas of 6 1/2 cms. contused and black in colour. Wound oozing blood.
(3) Contusion over (Lt) parietal region 3 cms. x 2 cm.
(4) C.L.W. over (Lt) Tragus of ear (Lt.) 1/2 cms. x 1/2 cms. x 1/4 cm.
(5) C.L.W. behind Lt. Ear 2 cms. x 1 cm. x 1 cm.
(6) Haematoma at Lt. occipital region oval in shape 5 cms. in diameter.
In his opinion, the said injuries were attributable to a hard and blunt object and were 24 hours old.
On internal examination, the doctor found :-
“(1) Haematoma under the scalp (Lt) occipital region oval in shape 5 cms. in diameter.
(2) Haematoma at occipito-temporal region (Lt) oval in shape 3 cms. in diameter.
(3) Haematoma over (Lt) temporal region 5 cms. x 4 cms. Linear fracture of Lt. temporal bone 6 cms. in length extending upwards 2 1/2 cms. above (Lt) mastoid process-oblique in direction.”
In the opinion of Dr. Kamble, the deceased died on account of cardio respiratory failure and shock due to subdural haemorrhage and fracture of Lt. temporal bone.
In the opinion of Dr. Kamble, the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death.
8. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the accused person were charged for an offence under Sections 302 r/w 34, I.P.C. They pleaded not guilty to the said charge and claimed to be tried.
During trial, the prosecution examined 11 witnesses. Out of them, Tanaji, Rajaram, Sakhubai, Tulsiram, Shantabai, Shivji and Bhagwan were examined as eye-witnesses. In defence, no witness was examined.
After recording the evidence adduced by the prosecution, the statement of the accused persons under S. 313, Cr.P.C., and hearing learned counsel for the parties, the trial Judge convicted and sentenced the accused persons in the manner stated in para 2.
9. We have heard Mrs. V. R. Bhonsale for the appellant and Mr. R. S. Deshpande, Additional Public Prosecutor for the respondent in Criminal Appeal No. 975 of 1984. We have heard Mr. R. S. Deshpande, Additional Public Prosecutor for the State of Maharashtra and Mrs. V. R. Bhonsale for Pandurang Dadu Patil (Original Accused No. 2) in Criminal Revision Application No. 5 of 1985. We have heard Mr. R. S. Deshpande, for the appellant and Mr. D. R. More for respondents Nos. 1, 3 and 4 in Criminal Appeal No. 998 of 1984. Although, respondent No. 2 was served but he has not engaged any counsel. On our request, Mr. D. R. More also covered his case. We have heard Mr. R. S. Deshpande for the appellant and Mr. D. R. More for the respondents in Criminal Appeal No. 999 of 1984.
10. The first question which arises is whether the involvement of the four accused persons namely Pandurang Patil, Ramhari Hasabe, Krishnadeo Shinde, and Ashok Shinde, has been established beyond reasonable doubt, in the incident which took place on 25-9-1983 at about 2 p.m. wherein Shankar was killed. It is necessary to answer this question because, Pandurang Patil has impugned his conviction and sentence by preferring Criminal Appeal No. 975 of 1984. Although, accused Ramhari Hasabe, Krishnadeo Shinde, and Ashok Shinde have not impugned their convictions and sentences, but, inasmuch as the State of Maharashtra has preferred an appeal under S. 377, Cr.P.C. with a prayer that their sentences be enhanced and sub-clause (3) of the said section stipulates that in an appeal for enhancement of sentence, it would be open for the accused to argue for acquittal, we are bound in law to decide whether their involvement has been correctly established or not ? Our answer to this question is in the affirmative.
In the instant case, the trial Judge has categorised the eye-witnesses in two categories :-
(i) Interested, and (ii) independent.
In para 12 of the impugned judgment, he has observed that Tanaji, Tulsiram, Shantabai and Bhagwan, PWs. 3, 6, 7 and 10 respectively are interested witnesses, and Rajaram, Sakhubai and Shivaji, PWs 4, 5 and 9 respectively do not fall in the category of interested witnesses. In other words, they are independent witnesses. The trial Judge was alive to the correct law namely that the testimony of an interested witness should only be scrutinised with caution and not mechanically rejected. He has borne it in mind while evaluating their evidence. It is on the basis of the averments emanating from the examination-in-chief of these eye-witnesses that we have set out the prosecution story in para 3. No useful purpose would be served by reproducing it verbatim. All these witnesses have stated that on 25-9-1983, at about 2 p.m. Bhagwan, PW 10, Bhagwan’s mistress Shantabai and Shankar were reaping hybrid jowar in their field. At that time, the four accused persons came and started abusing Shankar. Accused Pandurang hit a stone which struck Shankar on his right eye and which resulted in his falling down and thereafter Ramhari and Ashok assaulted him with stones and Krishnadeo with stick. On intervention of the eye-witnesses the accused persons are said to have run away.
We have gone through the testimony of the eye-witnesses and in our opinion, it inspires confidence.
11. The manner of assault as given by the eye-witnesses is corroborated by the nature of the injuries found on Shankar by Dr. Madhukar Kamble, PW 8. In para 7, we have reproduced the ante-mortem injuries sustained by the deceased-Shankar. Their bare perusal shows that they could be caused by stones and stick. It would be appropriate to point out that the opinion of the Autopsy Surgeon is also to the same effect.
11-A. Apart from the medical evidence there are some other circumstances which lend assurance to the ocular account. The Investigating Officer from the place of the incident, as is apparent from a perusal of the spot panchanama, recovered a handful of stones and blood-stained earth. This shows that the incident did take place at the place alleged by the prosecution.
11-B. The ocular account receives reassurance from the existence of a strong motive. We have set out the motive in para 3. The motive in the instant case is that there was an inimical strain between accused Ramhari and Bhagwan, both of whom were real brothers, on account of dispute regarding land. According to the prosecution, the accused were cut-up with Shankar because, Bhagwan used to reside with him and the evidence is that on the date of the incident, it was Shankar who was helping Bhagwan to reap hybrid jowar crop in the field wherein the incident took place.
11-C. We may also mention that there is an additional circumstance which clinches the involvement of the accused Ramhari namely that on the next day, of the incident i.e. on 26-9-1983, he was apprehended by PSI Chalke, putting on three-blood-stained clothes which were seized under a panchanama. The said clothes were sent to the Chemical Analyst who found blood of ‘O’ group, namely the blood group of the deceased, on them. The trial Judge took the view and rightly in our judgment that accused Ramhari had failed to explain as to how blood of ‘O’ group was found on his clothes.
12. In our view, there is ample clinching evidence to conclude the involvement of the four accused persons in the instant crime. To repeat that clinching evidence includes the statement of three independent eye-witnesses namely Rajaram, Shantabai and Shivaji, PWs 4, 5 and 9 respectively. In our view, in the absence of any animosity on their part with the accused persons they would not have falsely deposed about their participation.
13. The three questions which survive are :-
(a) Whether the trial Judge was justified in convicting accused Pandurang Patil under S. 326, IPC;
(b) Whether the acquittal of all the four accused persons under S. 302 r/w 34, IPC is sustainable :
(c) The sentence which should be awarded to the accused persons.
14. In our view, the trial Judge was grossly unjustified in convicting Pandurang Patil under S. 326 IPC. Section 326, IPC reads thus :-
Section 326 :
“Voluntarily causing grievous hurt by dangerous weapons or means – Whoever, except in the case provided for by S. 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which is deleterious to the human body to inhale, to swallow, or to receive into blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
The evidence on record shows that Krishnadeo assaulted the deceased Shankar with a stick on the back and it were the other three accused who hurled stones on Shankar and the grievous injury sustained by Shankar was attributable to a stone.
14-A. A perusal of S. 326, IPC would show that stone would only fall within its ambit if it is of a size and weight that if “used as a weapon of offence is likely to cause death”. In the instant case, there is no evidence to indicate that the stones used were so big and heavy that they were likely to cause death. On the converse the panchanama of the scene of offence, which was prepared by the Investigating Officer the next day shows that he recovered four small handful of stones from the place of the incident. In such a state of evidence if the trial Judge felt that Pandurang Patil was guilty of causing fracture suffered by the deceased he should have convicted him under S. 325, IPC and not under S. 326, IPC. We, however, feel that the said finding of the trial Court is erroneous. The trial Court seems to have been carried away by the fact that some of the witnesses stated that the stone hurled by Pandurang Patil struck Shankar near his left eye. The trial Judge was completely oblivious of the fact that injuries 3 to 6 were also in the same area and since accused Ramhari and Ashok are also said to have hurled stones, it cannot be concluded with definitiveness that the stone hurled by Pandurang Patil was responsible for the grievous injury suffered by Shankar. In our view, the trial Court should have convicted Pandurang Patil for an offence under S. 325 r/w 34, IPC.
15. We now take up the question of acquittal of the four accused persons in respect of the offence under S. 302, IPC read with 34, IPC. In our view, the trial Judge was wholly justified in acquitting them for the said offence. On the facts of this case, the act of the accused persons would not fall within the ambit of either one of the four clauses of S. 300. IPC or under any of the two parts of S. 304, IPC. But, we hasten to add that the trial Judge was grossly unjustified in only convicting Ramhari, Krishnadeo and Ashok for an offence under S. 324 r/w 34 IPC. The evidence is that these accused persons alone with Pandurang Patil, in furtherance of the common intention of all, assaulted the decease, Pandurang, Ramhari and Ashok by hurling stones at him and Krishnadeo by inflicting stick blow on his back. In our view, considering the overall circumstances, when the four accused persons conjointly assaulted the deceased Shankar, it can be safely presumed that they shared the common intention, to at least cause grievous hurt to him. In our view, accused Ramhari, Krishnadeo and Ashok are guilty of an offence punishable under S. 325 r/w 34, IPC and not for one under S. 324 r/w 34, IPC.
16. The last question is namely the quantum of sentence which should be awarded to the four accused persons. We cannot lose sight of the fact that the incident took place over 14 years ago; the common intention of the accused persons was to only inflict grievous hurt to Shankar; and the root cause for the incident was dispute pertaining to land and property between two brothers namely accused Ramhari and Bhagwan, P.W. 10. Bearing in mind the overall circumstances, in our view, the instant case does not call for a jail sentence and a sentence of fine would meet the ends of justice. In our view, the ends of justice would be squarely satisfied if each of the four accused persons are sentenced to pay a fine of Rs. 5,000/- within a period of four months from today failing which, they would undergo a sentence of one year RI. The said fine if realised, should be paid as compensation to the widow of the deceased Shankar Shinde and in case she is no more, to his legal heirs.
17. In the result, these matters are decided in the manner stated hereinafter :-
(i) Criminal Appeal No. 975 of 1984 preferred by Pandurang Dadu Patil is partly allowed. The conviction and sentence of the said appellant for the offence under S. 326, IPC is set aside. Instead he is convicted for the offence under S. 325 r/w 34, IPC and is sentenced to pay a fine of Rs. 5,000/- (rupees five thousand only) and one year RI in its default. In case he has already paid fine of Rs. 1,000/- imposed under S. 326, IPC, the same shall be deducted from Rs. 5,000/-.
(ii) Criminal Appeal No. 998 of 1984 preferred by the State of Maharashtra against acquittal of accused persons Ramhari Tatoba Hasabe, Pandurang Dadu Patil, Krishnadeo Namdeo Shinde and Ashok Shripati Shinde for an offence under S. 302 r/w 34, IPC is partly allowed inasmuch as the acquittal of Ramhari Tatoba Hasabe, Krishnadeo Namdeo Shinde and Ashok Shripati Shinde for an offence under S. 324 r/w 34, IPC is set aside. Instead the said three persons are convicted for an offence under S. 325 r/w 34, IPC and each of them is sentenced to pay a fine of Rs. 5,000/- (rupees five thousand only) and one year’s RI in its default. In case they have already paid the fine of Rs. 1,000/- awarded by the trial Judge under S. 324 r/w 34, IPC, the same would be deducted from Rs. 5,000/-.
(iii) Criminal Appeal No. 999 of 1984 preferred by the State of Maharashtra for enhancement of sentence of the four accused persons namely Ramhari Tatoba Hasabe, Pandurang Dadu Patil, Krishnadeo Namdeo Shinde and Ashok Shripati Shinde, is decided in terms of our judgment in Criminal Appeal No. 998 of 1984 and Criminal Appeal No. 975 of 1984.
(iv) Criminal Revision Application No. 5 of 1985 which arises out of a suo motu notice for enhancement of sentence issued by this Court to appellant Pandurang Dadu Patil, while admitting Criminal Appeal No. 975 of 1984, preferred by him, is also decided in terms of our judgment in Criminal Appeals No. 998 of 1984 and 975 of 1984.
Each of the four accused persons namely Ramhari Tatoba Hasabe, Pandurang Dadu Patil, Krishnadeo Namdeo Shinde and Ashok Shripati Shinde shall deposit the fine within a period of four months from today in the trial court. The accused, who does not deposit the fine within the stipulated period, would undergo a sentence of one year’s RI. The whole of the fine which is realised, shall be paid as compensation to the widow of the deceased Shankar and in case she is not alive, to his legal heirs.
In case the four accused persons/person, as the case may be, pay their/his fine, within the stipulated period, their/his bail bonds, as the case may be, shall stand cancelled and sureties discharged. In case the fine is not paid within the stipulated period, the delinquent accused shall be taken into custody to serve out the sentence imposed by us.
The trial Court shall also accept the fine on production of a certified copy of this judgment which in case an application is made, shall be issued on an expedited basis.
18. Order accordingly.