IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.100 OF 2007
Suresh s/o. Chaitya Konkani ]..Appellant
Age. 25 years, Occ. Labour,
R/o. Village Amlan, Tq. Nawapur,
Dist. Nandurbar.
VERSUS
1. The State of Maharashtra ]..Respondents
2. Tulshiram s/o. Kashya Konkani
Age. 65 years, Occ. Agriculture,
R/o. Village Amlan, Tq. Nawapur,
Dist. Nandurbar.
Shri C.R. Deshpande, Advocate for the appellant.
Shri K.G. Patil, A.P.P. for respondent/State.
CORAM : P.V. HARDAS &
P.R. BORKAR, JJ.
DATED : 28th NOVEMBER, 2008.
ORAL JUDGMENT [PER : P.R. BORKAR,J.] :-
. This is an appeal filed by original accused
No.1 being aggrieved by order of conviction and
sentence passed by the Additional Sessions Judge,
Nandurbar, in Sessions Case No. 49 of 2004 decided on
14.02.2007, whereby the appellant was convicted of
offence punishable under Section 302 of the Indian
Penal Code and sentenced to suffer imprisonment for
::: Downloaded on – 09/06/2013 14:06:04 :::
( 2 )
life and to pay fine of Rs. 10,000/-, in default, to
undergo rigorous imprisonment for one year.
2. Briefly stated facts giving rise to this
appeal may be stated as below:-
. P.W.2-Tulshiram Konkani has his land adjacent
to the land of his brother – Isaram. Prior to the
incident in question, quarrels had taken place over
boundary bund between P.W.2-Tulshiram and sons of his
brother
appellant
Isaram.
ig Chaitram is
and brother of Tulshiram and Isaram.
the father of
There
the
are two more brothers. On the day of incident i.e.
on 07.10.2004 at 6.30 a.m. there was quarrel between
Tulshiram and his son Rupchand on one side and
original accused Nos. 1 to 6 on the other. Accused
were appellant Suresh, Punya, Rohidas, Bhavaji, Vikram
and Chaitya Konkani. Initial exchange of words
aggravated in to a scuffle. At that time Janglu
Konkani (P.W.3) and Parubai (P.W.11) Konkani
intervened and tried to stop the quarrel. However,
the quarrel did not stop and again over the land
dispute there was exchange of words and fighting
continued. At that time the appellant gave blow with
a yoke (Dussar) of bullock-cart which was lying there
::: Downloaded on – 09/06/2013 14:06:04 :::
( 3 )
on the head of Rupchand. As a result, Rupchand was
injured. Thereafter, Rupchand was first taken to the
Government Hospital at Nawapur. While at the hospital
P.W.2-Tulshiram lodged complaint (Exh.66). On the
advice of doctor, Rupchand was taken to a private
hospital at Dhule. On the next day Rupchand died.
3. Police investigated the case. They attached
yoke in question. They recorded statements of various
witnesses. Ultimately charge-sheet was sent to the
Court.
4. The prosecution in all examined 13 witnesses.
Relying on their evidence the learned Additional
Sessions Judge, Nandurbar, convicted the appellant
alone of offence punishable under Section 302 read
with Section 34 of the I.P.C. As per the order,
Appellant-Suresh was acquitted of the offences
punishable under Sections 143, 147, 148, 149, 504 and
506 of the I.P.C. Out of fine amount, an amount of
Rs. 8000/- was ordered to be paid to complainant –
Tulshiram as compensation under Section 357 (1) (c) of
the Cr.P.C. Remaining accused were convicted of the
offence punishable under Section 324 read with Section
34 of the I.P.C. and they were released on probation.
::: Downloaded on – 09/06/2013 14:06:04 :::
( 4 )
However, each of original accused Nos. 2 to 6 was
directed to pay compensation of Rs.1000/- to
complainant - Tulshiram. We do not find order of
acquittal or conviction of accused Nos. 2 to 6 for
remaining offences with which they were charged.
5. At Exh.41 there is charge against all six
accused and the charges against all the accused are
under Sections 143, 147 read with 149, 148 read with
149, 302 (simplicitor), 504 (simplicitor) and 506
(simplicitor).
ig It is unfortunate that
Additional Sessions Judge did not apply his mind while
the learned
framing charge. Section 143 of the I.P.C. is an
offence of being member of unlawful assembly.
Offences under Sections 146 and 147 of the I.P.C. are
as follows:-
“146.
146. Rioting – Whenever force or violence is
used by an unlawful assembly, or by any memberthereof, in prosecution of the common object
of such assembly, every member of such
assembly is guilty of the offence of rioting.
147. Punishment for rioting – Whoever is
guilty of rioting, shall be punished with
imprisonment of either description for a termwhich may extend to two years, or with fine,
or with both.”
6. The offence under Section 147 of the I.P.C.
::: Downloaded on – 09/06/2013 14:06:04 :::
( 5 )
is an individual offence and each member is guilty of
offence of rioting if conditions of Section 146 of the
I.P.C. are fulfilled. In fact offence under Section
147 of the I.P.C. is aggravated form of the offence
punishable under Section 143 of the I.P.C.
7. Section 148 of the I.P.C. is as follows:-
“148.
148. Rioting, armed with deadly weapon. –
Whoever is guilty of rioting, being armed with
a deadly weapon or with anything which, usedas a weapon of offence, is likely to cause
death, shall be punished with imprisonment of
either description for a term which may extend
to three years, or with fine, or with both.”
. Thus offence under Section 148 of the I.P.C.
is also an individual offence by a member of guilty of
rioting, who is armed with deadly weapon or with
anything which, used as weapon of offence, is likely
to cause death. So, there could not have been charge
under Section 147 read with Section 149 or under
Section 148 read with Section 149 of the I.P.C.
8. Section 149 of the I.P.C. is as follows:-
“149.
149. Every member of unlawful assembly
guilty of offence committed in prosecution of::: Downloaded on – 09/06/2013 14:06:04 :::
( 6 )common object – If an offence is committed by
any member of an unlawful assembly in
prosecution of the common object of that
assembly, or such as the members of thatassembly knew to be likely to be committed in
prosecution of that object, every person who,
at the time of the committing of that offence,is a member of the same assembly, is guilty of
that offence.”
. So, it is clear that under this section every
member of unlawful assembly is constructively held
guilty of offence which is committed in prosecution of
common object of the assembly or when offence is such
that
committed in
members of the assembly knew to be likely to
prosecution of the common object.
be
So,
this Section puts vicarious liability on every member
of unlawful assembly and hold him guilty of any
offence which is committed in prosecution of common
object or when such member knew it to be likely to be
committed in prosecution of the common object.
9. Here in the present case there is no charge
under Section 302 read with Section 34 or under
Section 302 read with Section 149 of the I.P.C.
Though as per prosecution case one blow with yoke was
given by accused No.1 to deceased Rupchand, which
proved to be fatal & no other accused gave blow which
resulted in death, it is difficult to know why the
::: Downloaded on - 09/06/2013 14:06:04 :::
( 7 )
learned Additional Sessions Judge has framed charge of
committing the offence punishable under Section 302 of
the I.P.C. individually against all the accused.
Similarly, he has charged all six accused of
committing individual offences under Sections 504 and
506 of the I.P.C. There is no appeal filed by
original appellant Nos. 2 to 6, but, fact remains
that there was no charge against original accused Nos.
2 to 6 for committing offence under Section 324 read
with Section 34 of the I.P.C. Be that as it may.
10. In
this case P.W.8-Dr. Sunita Patil, who is
examined at Exh.82, stated that on 07.10.2004 when she
was working as the Medical Officer at Nawapur
Sub-District Civil Hospital, one Rupchand Tulshiram
Konkani was admitted by his father. Rupchand was in
unconscious state. He was vomiting blood. Blood was
oozing from his nose and mouth. He had grievous
injury of 6 cms x 2 cms x 2 cms deep. The injury was
bone deep. The patient was admitted at 7.20 a.m.
History of assault at 6 a.m. was given. Within ten
minutes she referred the patient to the Civil
Hospital, Dhule. The doctor proved medical
certificate at Exh.83. The doctor said that the
injury was possible with article No.4-wooden loft. It
::: Downloaded on – 09/06/2013 14:06:04 :::
( 8 )
is in fact a yoke called “Dussar” in local language.
The doctor denied in cross-examination that the injury
is possible if a person is pushed from front side and
falls on back side of his head on the road or on metal
spread on the road.
11. P.W.9-Dr. Pathak examined at Exh.85 performed
post mortem examination on the dead body of Rupchand
on 09.10.2004 between 7 a.m. to 8 a.m. He found
following four injuries on the person of the
deceased:-
(1) Stitched wound present over posterior aspect
of scalp in right occipital region, horizontally
situated of size 2 cms. x 0.25 cm. situated 5.5 cms.
away from midline. On opening stitches, no evidence
of infection seen. Injury was bone deep.
(2) Contusion of size 1 cm. x 1 cm. present 2
cms medial to injury No.1, reddish brown in colour.
(3) Contusion of size 2 cms. x 1.5 cms. present
medially and posteriorly, 2.5 cms. to injury No.1,
reddish brown in colour.
(4) Contusion present over right fronto parietal
region of size 6 cms. x 7 cms., reddish brown in
colour.
12. According to the doctor the injuries were
antemortem caused within 24 to 48 hours before death.
On internal examination the doctor found underscalp
haematoma, reddish brown in colour, present over
::: Downloaded on - 09/06/2013 14:06:05 :::
( 9 )
frontal, both parietal and occipital regions and
depressed fracture over right occipital region of
skull, circular of size 3.5 cms. x 4 cms., consistent
with injury No.1 mentioned in column No.17. There was
evidence of infiltration and extravasation of blood in
fracture line present. The cause of death was head
injury. The injury was sufficient to cause death in
the ordinary course of nature. The doctor proved P.M.
notes at Exh.86. The doctor also stated that external
injuries so also internal damage were sufficient to
cause
nature,
death
of a person in the ordinary
if blow was given with article 4 – yoke.
course of
The
doctor denied that injury Nos. 1 to 4 were possible
by fall on hard surface.
13. P.W.1-Bharat Konkani proved spot panchanama
(Exh.63) and it shows that spot was shown by
P.W.2-Tulshiram, who is complainant. The incident had
taken place in front of house of Tulshiram, where
there was cement concrete road of 10 feet width. Some
bloodstains were seen and sample of the same was
taken. The panch also proved panchanama of seizure of
clothes of deceased at Exh.64.
14. P.W.4-Gulab Konkani proved arrest panchanama
::: Downloaded on - 09/06/2013 14:06:05 :::
( 10 )
of the accused. The accused was arrested on
07.10.2004. On the shirt on the person of the accused
there were bloodstains. It was attached. The witness
did not support the panchanama regarding discovery of
yoke by the accused.
15. Ocular evidence consists of evidence of
P.W.2-Tulshiram, P.W.3-Janglya Konkani and
P.W.11-Parubai Konkani. P.W.12-Utrya Konkani has
turned hostile. P.W.2-Tulshiram stated that over the
boundary
bund quarrel had occurred and during quarrel
appellant-Suresh Konkani had given blow with a yoke on
the head of Rupchand. He further stated that then
Rupchand was taken to the Government Hospital. He
proved his complaint at Exh.66. He further said that
Rupchand was first taken to Nawapur hospital and then
he was taken to private hospital at Dhule, where he
died. In cross-examination P.W.2-Tulshiram admitted
that he had four brothers. They are Chaitram, Isaram,
Bhauji and Utarya. They had ancestral property.
Partition had taken place between the brothers. Land
of Isaram was cultivated by his sons. There was
quarrel between him and sons of Isaram over the
boundary bund. In cross-examination it is found that
to various questions, the witness was not ready to
::: Downloaded on – 09/06/2013 14:06:05 :::
( 11 )
answer and he kept silence. Thus, question was asked
whether one day prior to the incident in question,
there was quarrel over the boundary bund. However,
there was no reply. The witness did not answer the
question whether concerned Surpanch had intervened.
He did not answer the question who had lifted Rupchand
from the spot. He did not answer who told contents of
complaint to Police. He did not answer whether
Surpanch was against party of the then Minister – Mr.
Swarupsingh Naik. He did not answer whether Rajkapur
was
the party
brother of Surpanch and Rajkapur was belonging to
of Mr. Naik and whether all accused were
from the party of Mr. Naik. The witness did not say
how the incident started.
16. P.W.3-Janglya Konkani who is Surpanch of the
village and who supported the prosecution case stated
that on 07.10.2004 when he was present in the
court-yard, he saw all accused on one side and
Tulshiram and Rupchand on other side. They were
quarrelling with each other and he intervened and
stopped the quarrel but again the quarrel started.
Bhauji Kashya caught hold of Tulshiram and Rupchand
came there. All the accused started assaulting by
fist and kick blows to Rupchand. Thereafter,
::: Downloaded on - 09/06/2013 14:06:05 :::
( 12 )
remaining accused caught hold of Rupchand and accused
No.1 Suresh gave blow with yoke to Rupchand and
Rupchand fell down. In cross-examination, the witness
admitted that when quarrel was going on, beside him
his wife and Devlya Rajya had also gathered there. He
admitted that Bhauji Kashya had caught hold of
Tulshiram, so Rupchand came there to rescue his
father.
17. P.W.11-Parubai has stated that at 6.30 a.m.
to 7.00 a.m.
ig on 07.10.2004 quarrel
between Tulshiram and Rupchand on one side and accused
was going on
Nos. 1 to 6 on other side. There was scuffle between
the two groups. This witness was in a position to
speak in Marathi. The witness further stated that she
herself and her husband intervened and tried to
convince both sides. Even then they did not stop and
started assaulting each other. Again fighting was
going on. There was land dispute. Yoke of bullock
cart was lying near house of Chaitram. Appellant
Suresh picked up that yoke and gave blow on the head
of Rupchand. There is no reason why this witness
should be disbelieved. She denied that Rupchand was
pushed by somebody and Rupchand fell down. She also
said that Rupchand did not fall on any stone or
::: Downloaded on – 09/06/2013 14:06:05 :::
( 13 )
boulder. We find evidence of P.W.11-Parubai more
reliable and convincing. She stood the test if
cross-examination. The learned Trial Judge did not
believe story of other two eye-witnesses that accused
Nos. 2 to 6 had caught hold Rupchand, when accused
No.1 Suresh inflicted blow with the yoke.
18. Shri C.R. Deshpande, advocate for the
appellant argued that the case would not fall under
Section 302 of the I.P.C., but it would fall under
pre-plan. The
Section 304 of the I.P.C.
land
He stated that there was no
dispute was not between the
appellant and the deceased. The dispute was between
father of the deceased and sons of Isaram. There was
no intention to cause death. There was no motive to
cause death of Rupchand. The incident had occurred at
the spur of moment. In the quarrel, only one blow
with yoke was given. Therefore, the offence would be
under Section 304 of the I.P.C. and not under Section
302 of the I.P.C. He also argued that since there was
no intention, the offence cannot be one of murder. He
also argued that exception fourth of Section 300 of
the I.P.C. is applicable.
19. On the other hand Shri K.G. Patil, A.P.P.
::: Downloaded on - 09/06/2013 14:06:05 :::
( 14 )
for the respondent/State argued that this case is
clearly covered under Clause Thirdly of Section 300 of
the I.P.C. and the appellant has caused fatal injury,
which he intended to inflict and it was sufficient to
cause death in the ordinary course of nature. He also
argued that the case does not fall under fourth
exception.
20. Shri C.R. Deshpande cited certain cases. He
cited case of Daya Nand Vs. State of Haryana, 2008
ALL
Court
MR
has
(Cri) 2279 (S.C.). In that case the
laid down distinction between Section
Supreme
300
and Section 304 of the I.P.C. The learned advocate
referred to para Nos. 10 and 11 of the said case.
The Supreme Court has laid down that safest way of
approach is to keep in mind the key words used in
various clauses of Sections 299 and 300. A
comparative table is also given in the said case. In
para 17 of the said case following observations from
page 468 of Virsa Singh v. State of Punjab, AIR 1958
S.C. 465,
465 are quoted with approval:-
“The question is not whether the prisoner
intended to inflict a serious injury or a
trivial one but whether he intended to inflict
the injury that is proved to be present. If
he can show that he did not, or if the
totality of the circumstances justify such an::: Downloaded on – 09/06/2013 14:06:05 :::
( 15 )inference, then of course, the intent that the
section requires is not proved. But if there
is nothing beyond the injury and the fact that
the appellant inflicted it, the only possibleinference is that he intended to inflict it.
Whether he knew of its seriousness or intended
serious consequences, is neither here or
there. The question, so far as the intention
is concerned, is not whether he intended to
kill, or to inflict an injury of a particular
degree of serioueness but whether he intended
to inflict the injury in question and once the
existence of the injury is proved the
intention to cause it will be presumed unless
the evidence or the circumstances warrant an
opposite conclusion.”
21. In this case there is no material to show that
the
particular
accused/appellant
bodily
did not intend to inflict
injury which is caused,
the
but
unintentionally or due to some other cause the injury
was caused. In this case the doctor has stated that
the injury on the head was sufficient in the ordinary
course of nature to cause death. So, we are of the
opinion that clause thirdly is clearly applicable.
22. Exception 4 to Section 300 is as follows:-
“300. 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 theoffender 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.”
::: Downloaded on – 09/06/2013 14:06:05 :::
( 16 )
23. Evidence of P.W.3-Janglya and P.W.11-Parubai
clearly shows that scuffle was going on between two
groups. They were giving blows to each other. It is
also admitted position that dispute over boundary bund
was between P.W.2-Tulshiram and sons of Punya and
there was no dispute between appellant and Tulshiram.
Evidence of P.W.11-Parubai shows that the yoke which
was lying there was taken up by appellant Suresh and
he gave blow with it on the head of Rupchand. Single
blow
high.
was given.
ig It appears that passions had
It did not happen that the offender had
risen
taken
any undue advantage or acted in cruel and unusual
manner. There is nothing on record to show that it
was the appellant’s side which had offered provocation
or committed first assault. Considering the
circumstances of the case, we are of the considered
opinion that the present case falls under exception 4
of Section 300 of the I.P.C. Therefore, the offence
committed will be under Section 304, Part I of the
I.P.C. The appellant was 23 years of age at the time
of incident. He is illiterate. Shri C.R. Deshpande,
Advocate for the appellant stated that these are
tribals coming from tribal area of Nandurbar. There
is no evidence of previous criminal record. So,
::: Downloaded on – 09/06/2013 14:06:05 :::
( 17 )
considering totality of the circumstances, we are of
the opinion that rigorous imprisonment for seven years
and fine of Rs. 10,000/- (Rupees Ten Thousand) would
be adequate punishment for offence punishable under
Section 304, Part I of the I.P.C.
24. In the result, we pass following order:-
(1) The appeal is partly allowed.
(2) The
14.02.2007
order of conviction and
passed by the learned
sentence dated
Additional
Sessions Judge, Nandurbar is hereby set aside
and the appellant instead is convicted of the
offence punishable under Section 304, Part I
of the I.P.C. and sentenced to suffer
rigorous imprisonment for seven years and to
pay fine of Rs.10,000/- (Rupees Ten Thousand),
in default, to suffer rigorous imprisonment
for one year.
(3) The order regarding payment of compensation is
maintained.
::: Downloaded on – 09/06/2013 14:06:05 :::
( 18 )
[P.R. BORKAR,J.] [P.V. HARDAS,J.]
snk/2008/NOV08/crap100.07
::: Downloaded on – 09/06/2013 14:06:05 :::