NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1443 OF 2008
[Arising out of S.L.P. (Crl.) No.566 of 2008]
Kallu @ Kalyan Atmaram Patil .....
Appellant
Versus
State of Maharashtra ..... Respondent
JUDGMENT
Lokeshwar Singh Panta, J.
1. Delay condoned.
2. Leave granted.
3. Appellant has filed this appeal against the judgment and
order dated 23.02.2006 passed by a Division Bench of the
High Court of Judicature of Bombay, Bench at Aurangabad in
Criminal Appeal No.649/2004 confirming the conviction and
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sentence of imprisonment for life in respect of an offence
punishable under Section 302 of the Indian Penal Code [for
short `IPC‘] and a fine of Rs.500/- with a default stipulation of
imprisonment for six months awarded by the learned
Additional Sessions Judge, Amalner on 29.09.2004 in
Sessions Case No.28/2000.
4. Brief facts, which led to the trial of the appellant, are as
follows:
Kallu @ Kalyan Atmaram Patil, appellant herein, along
with 16 others were tried for the offences of rioting, murder of
Shivaji Patil and causing grievous hurt to PW-12 Deepak on
31.12.1999 at about 7.47 p.m. The prosecution case was that
on the day of the incident at village Mhasave one Vimalbai
Patil was elected as a Sarpanch of the village. PW-12 Deepak
Patil and his father Shivaji Patil were the supporters of
Vishwas Pahelwan, whereas the appellant and other accused
persons supported Vimalbai Patil. The prosecution alleged
that the appellant along with 20 to 25 more persons armed
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with sticks and wooden rods proceeded towards the house of
PW-12 Deepak. They asked PW-12 as to why he canvassed for
the group of Vishwas Pahelwan in the Gram Panchayat
Election. The accused persons allegedly inflicted sticks blows
on the head and forehead of PW-12 Deepak and also gave
beating to Shivaji Patil, who was standing on the platform of
his house. The appellant alleged to have given stick blow on
the head of Shivaji Patil, who as a result thereof fell down and
became unconscious. PW-13 Vithoba and PW-14 Sukdeo
were also assaulted by the accused. On seeing the co-villagers
coming on the scene of occurrence, the accused persons went
away. Thereafter, PW-15 Arun Patil with the help of one
Nimba and Vijay shifted PW-12 Deepak and his father Shivaji
Patil to Cottage Hospital at Parola. After the first-aid
treatment, PW-12 lodged complaint [Ext. 152], on the basis of
which First Information Report bearing Crime No.210/1999
came to be registered against 17 accused persons under
Sections 307, 143, 147, 148, 149 and 452 of IPC with the
Parola Police Station. Shivaji Patil was shifted for medical
treatment to Civil Hospital, Dhule. On 01.01.2000, Shivaji
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Patil succumbed to the injuries. On his death, the offence
came to be converted to under Section 302 of IPC. In Civil
Hospital at Dhule, Inquest panchnama [Ext. 118] came to be
recorded in the presence of panch witness Vishwas Patil.
5. PW-23 Dr. Avinash Ruikar conducted autopsy on the
dead body of Shivaji Patil and noticed the following two
external injuries:-
“[i] C.L.W. on right front parietal region 8.5
cm. x 1.4 cm. Scalp deep.
[ii] Abrasion on left arm medially upper 1/3rd
3.8 x 0.2 cm.”
Both the injuries were found ante mortem. On internal
examination, doctor noticed haemorrhage all over the skull.
There was also a crack fracture of left parietal bone. As per
the post mortem notes [Ext. 212], Dr. Avinash opined that the
cause of death of the deceased Shivaji Patil was due to head
injury.
6. PW-19 Jagatrao Patil, Police Constable, prepared
Panchnama [Ext. 171] of the clothes of the deceased.
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Spot Panchnama [Ext. 116] was recorded in the presence
of PW-1 Hemant Patil. PW-22 P.I. Mahajan arrested the
accused persons on different dates. At the instance of
the appellant, sticks were discovered which were seized
under Panchnama [Ext. 126]. The seized articles were
sent to the Chemical Analyser. On receipt of the reports
of chemical analysis [Exts. 200 and 211], charge sheet
was filed against the appellant and 16 other accused
persons in the Court of J.M.F.C. at Parola, who
committed the case to the Court of Additional Sessions
Judge at Amalner by order dated 31.03.2000.
7. The trial court found a prima facie case against the
appellant and other accused persons under Sections
143, 147, 148, 452 and 302 read with Sections 149 and
324 read with Section 149 of IPC. All the accused
pleaded not guilty to the charges and claimed to be tried.
During trial of the case, the prosecution examined as
many as 23 witnesses. The accused persons in their
statements recorded under Section 313 of the Criminal
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Procedure Code pleaded that Pankaj Suryabhan Patil
(accused No.7) was elected as Deputy Sarpanch, so the
prosecution witnesses belonging to opposite group were
annoyed and they had assaulted Suresh Suka, father of
Ananda Suresh Patil (accused no. 1). The said incident
was reported to the Police and crime was registered
against prosecution witnesses and because of political
rivalry, the accused have been falsely implicated in the
case.
8. The learned trial Judge, on analysis of the entire oral and
documentary evidence on record, held the appellant and
five other accused persons guilty under Sections 148,
302, 325 read with Section 149 of IPC. They have been
acquitted for the offences under Sections 452, 504 read
with Section 149 of IPC. Other accused have been
acquitted for all the charges.
9. Being aggrieved, the appellant and other accused
persons filed three separate sets of appeals before the
High Court.
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10. The High Court acquitted the other accused for offence
under Sections 148 and 302 read with Section 149 of IPC
and convicted them for lesser offences. Criminal Appeal
No.649 of 2004 filed by the appellant was partly allowed
to the extent that his conviction under Sections 148, 325
read with Section 149 of IPC and Section 302 read with
Section 149 of IPC is set aside and instead he is
convicted under Section 302 IPC for murder of Shivaji
Patil and aforesaid sentence has been imposed upon
him.
11. Hence, the appellant has filed this appeal by special
leave questioning the correctness and legality of the
judgment of the High Court.
12. This Court on 21.01.2008 issued notice to the
respondent-State limited to the question of sentence.
13. We have heard Mr. Naresh Kumar, Advocate for the
appellant, and Mr. Ravindra Keshavrao Adsure, Advocate
for the respondent-State and with their assistance
examined the material on record.
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14. On scrutiny of the oral evidence of PW-12 Deepak, it
stands proved that the appellant has inflicted single stick blow
on the head of Shivaji Patil which proved to be fatal. The
second injury found on the person of the deceased by Dr.
Avinash was in the nature of abrasion on left arm. The other
eyewitnesses including the injured witnesses have not
supported the prosecution case. The evidence of PW-12
Deepak is not sufficient to establish that the appellant
inflicted fatal injury on the head of the deceased with an
intention to cause his death or with a knowledge that the
injury so inflicted shall cause the death of the deceased in the
ordinary course of nature. It is also found from the evidence
of PW-12 that no other injury was caused by the appellant to
the deceased after he became unconscious. The ocular
evidence of PW-12 Deepak corroborated by the medical
evidence, in our opinion, would prove that the offence
committed by the appellant fell under Section 304 Part-I of
IPC and not under Section 302 of IPC. We, accordingly,
convict the appellant under Section 304 Part-I, IPC, for
causing the death of Shivaji Patil and sentence him to suffer
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rigorous imprisonment for ten years and to pay a fine of
Rs.500/-. In default of payment of fine, the appellant shall
undergo simple imprisonment for one month.
15. In the result, for the afore-said reasons, this appeal is
partly allowed to the extent of holding the appellant guilty of
the offence punishable under Section 304 Part-I, IPC, and
imposing the aforesaid sentence upon him. The judgment and
order of the High Court confirming the conviction of the
appellant under Section 302, IPC, and sentencing him to
undergo imprisonment for life shall stand modified to the
extent indicated hereinabove.
………………………………….J.
(R. V. Raveendran)
………………………………….J.
(Lokeshwar Singh Panta)
New Delhi,
September 10, 2008.