JUDGMENT
Nishita Mhatre, J.
1. Being aggrieved by the judgment and order dated 30th January 2001 of the Additional Sessions Judge, Pandharpur in Sessions Case No.120 of 1999, the Appellants have preferred this Criminal Appeal against the conviction under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as “the I.P.C.”) and sentence of life imprisonment and a finding of Rs.1000/-.
2. The prosecution case as has been unfolded before us is as follows :-
The Appellants, Tukaram and Tulshiram, who were accused Nos.1 and 2 respectively, were the brothers of the victim Sopan. They have two other brothers, namely, Namdev and Sahebrao. The mother of the Appellants and the victim inherited some property. Namdev, one of the brothers, approached Sopan, the victim, and requested him to seek a partition of the property which was being looked after by Tukaram and Tulshiram. The victim thereafter approached Tukaram and Tulshiram at his parent’s house at Koprevasti. He was accompanied by his wife and daughter. Sopan requested Tulshiram and Tukaram, in the presence of his wife, daughter, Namdev and his parents to partition the property. Irked by this request, Tulshiram dealt a blow on the head of Sopan with a stick. Blood started oozing out from the head injury. Thereafter, both the accused lifted the victim and threw him on the ground resulting in a further injury to the victim. Both the accused fled from the scene. Namdev attempted to catch them but was unsuccessful. Namdev then called Dr. Ranaware who declared the victim dead. A complaint was lodged and the accused were arrested. Accused No.1 was arrested on the same day while Tulshiram, accused No.2 was arrested on 19th August 1999. Both the accused were tried before the Sessions Court, Pandharpur and have been convicted under Section 302 read with 34 of the I.P.C. for committing the murder of their brother Sopan.
3. We have perused the entire evidence with the assistance of the learned Advocate for the Appellants as well as the learned Additional Public Prosecutor. The prosecution has sought to establish its case by examining seven witnesses, three of them being eye witnesses. Five witnesses have also been examined by the accused in their defence. PW1 and PW2 are the panch witnesses for the spot panchnama and the inquest panchnama respectively. PW3 is the Doctor who was called by Namdev and who declared Sopan dead. PW4 is the wife of Sopan who was an eye witness to the entire incident. She has deposed that at about 3.00 p.m. on 13th August 1999 she and her daughter, Pretabai, PW5 accompanied Sopan to the house of his parents. She has stated that they visited the parents in order to meet the accused who lived with the parents so that the property inherited by her mother-in-law, PW6 could be partitioned. She has further stated that the accused were not present when she arrived at the residence of her in-laws with Sopan and PW5, but reached the scene thereafter armed with sticks. Sopan then requested them to allot a share of the property to Namdev after partitioning it. Both the accused, according to PW4, asked the victim to refrain from advocating Namdev’s cause. They started abusing the victim and then accused No.2 dealt blow with a stick on the head of the victim due to which he fell down. Blood started oozing out from the head injury caused to the victim. PW4 has then stated that the accused lifted her husband and flung him on the ground. Namdev tried to catch both the accused but they fled away from the scene. She has also averred that PW3 arrived at the scene at the request of Namdev and declared Sopan dead. This evidence of PW4 has not been shaken in the cross-examination. PW5, the daughter of Sopan and who was also an eye witness to the incident, has corroborated her mother’s evidence in all material particulars. PW6 is the mother of the Appellants and the victim. She was also an eye witness to the incident. However, she has denied the presence of PW4 and PW5 at the time of the incident. She has also denied the presence of Namdev but has admitted that the victim was felled by a stick blow from Tulshiram, accused No.2. This witness has been declared hostile. However, on being cross-examined by the Additional Public Prosecutor, she has admitted that Namdev was seeking a partition of the property and that both the accused were not consenting to the same. She has also admitted that Sopan was attempting to convince the accused to part with the share of Namdev. She has then deposed in her cross-examination that Tukaram had gone to the Sugar factory at 1.00 p.m. on that day and had returned only at 6.00 p.m.. However, a perusal of the evidence of PW6 shows that she has not denied that the accused caused a bleeding injury on the head of the victim and he succumbed to that injury. PW7 is the Investigating Officer.
4. The defence witnesses have been essentially examined to establish the case of the accused No.1 that he was not present when the incident occurred and was in fact at the Sugar factory. DW2 claimed to have seen Tukaram at the factory at 2.00 p.m. and at 5.15 p.m. He has also stated that the factory is about 7 to 8 kms. away from the residence of the accused and that Tukaram used to commute on a motor-cycle. DW5 has deposed that he saw accused No.1 i.e. Tukaram at around 3.45 p.m. at the Sugar factory. This witness had placed on record the xerox copy of a receipt to establish that Tukaram had purchased 5 kg. sugar on that day. The witness also produced a card showing that the purchase had been made by Tukaram on the day of the incident. However, he has admitted that neither the time nor the signature of the purchaser are required to be noted in the register nor is the time of purchase mentioned on the receipt or on the card.
5. On a consideration of the entire evidence before us, we find that there is no doubt that the death of Sopan was homicidal. There is ample evidence to indicate that the accused were responsible for the death of Sopan. Although PW6 has turned hostile, it was obviously with a view to protect her sons. On a reappraisal of the evidence of PW4, the wife of Sopan, which has been corroborated by PW5, we find no difficulty in accepting the case of the prosecution that the death of Sopan is a culpable homicide. However, we are unable to concur with the findings of the Sessions Court that it amounted to murder. All the witnesses have deposed that Tulshiram dealt the victim a stick blow on his head which caused a bleeding injury. The accused then lifted the victim and forcefully tossed him onto the floor which possibly aggravated the injury. The intention to commit murder has not been established by the prosecution. Obviously, the accused were enraged because of Sopan’s insistence to part with the share of the property which fell to the lot of Namdev. As a result of this, Tulshiram dealt a stick blow to Sopan. All these circumstances indicate that although the accused have committed a culpable homicide, it does not amount to murder.
6. Accused No.1, Tukaram’s alibi that he was not present when the incident occurred because he was in the Sugar factory has not been established. Each of the defence witnesses have stated that they noticed him in the Sugar factory either before or after 3.00 p.m. when the incident occurred. The distance between the Sugar factory and the residence of the accused is about 7-8 kms. There is evidence on record that accused No.1 commuted on a motor-cycle. Therefore, he could obviously cover the distance in a very short while. There is no positive evidence to show that accused No.1 was not present when the incident occurred. There is no reason to doubt the testimony of PW4 and PW5 who have both deposed that accused No.1 was present when the incident occurred.
7. We, therefore, set aside the conviction and sentence of the accused under Section 302 I.P.C. The accused are instead convicted under Section 304 Part I of the I.P.C. They are sentenced to suffer rigorous imprisonment for seven years. However, they will be entitled to the normal set off.
8. Appeal accordingly partly allowed.