{"id":87881,"date":"2008-11-28T00:00:00","date_gmt":"2008-11-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suresh-vs-the-state-of-maharashtra-on-28-november-2008"},"modified":"2016-05-18T00:29:25","modified_gmt":"2016-05-17T18:59:25","slug":"suresh-vs-the-state-of-maharashtra-on-28-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suresh-vs-the-state-of-maharashtra-on-28-november-2008","title":{"rendered":"Suresh vs The State Of Maharashtra on 28 November, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Suresh vs The State Of Maharashtra on 28 November, 2008<\/div>\n
Bench: P.V. Hardas, P. R. Borkar<\/div>\n
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                        BENCH AT AURANGABAD.\n\n\n                       CRIMINAL APPEAL NO.100 OF 2007\n\n\n\n\n                                                                          \n     Suresh s\/o. Chaitya Konkani                          ]..Appellant\n     Age. 25 years, Occ. Labour,\n\n\n\n\n                                                  \n     R\/o. Village Amlan, Tq. Nawapur,\n     Dist. Nandurbar.\n\n\n                                     VERSUS\n\n\n\n\n                                                 \n     1. The State of Maharashtra                          ]..Respondents\n\n     2. Tulshiram s\/o. Kashya Konkani\n        Age. 65 years, Occ. Agriculture,\n\n\n\n\n                                     \n        R\/o. Village Amlan, Tq. Nawapur,\n        Dist. Nandurbar.\n                        \n     Shri C.R. Deshpande, Advocate for the appellant.\n                       \n     Shri K.G. Patil, A.P.P. for respondent\/State.\n\n\n\n                                     CORAM : P.V. HARDAS &\n                                             P.R. BORKAR, JJ.\n<\/pre>\n
                                     DATED : 28th NOVEMBER, 2008.\n<\/p>\n
     ORAL JUDGMENT [PER : P.R. BORKAR,J.] :-\n<\/p>\n
     .          This    is   an appeal filed by original                accused<\/p>\n
     No.1    being     aggrieved     by   order    of     conviction           and<\/p>\n
     sentence     passed     by    the Additional       Sessions          Judge,<\/p>\n
     Nandurbar, in Sessions Case No.          49 of 2004 decided on<\/p>\n
     14.02.2007,       whereby     the appellant was          convicted          of<\/p>\n
     offence     punishable       under Section 302 of           the      Indian<\/p>\n
     Penal     Code    and sentenced to suffer imprisonment                    for<\/p>\n
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\n                                              (    2      )<\/p>\n
     life     and to pay fine of Rs.                     10,000\/-, in default, to<\/p>\n
     undergo rigorous imprisonment for one year.\n<\/p>\n
     2.           Briefly       stated           facts       giving         rise       to      this<\/p>\n
     appeal may be stated as below:-\n<\/p>\n
     .            P.W.2-Tulshiram                Konkani has his land adjacent<\/p>\n
     to     the    land of his brother – Isaram.                            Prior         to     the<\/p>\n
     incident       in        question, quarrels had taken place                               over<\/p>\n
     boundary       bund between P.W.2-Tulshiram and sons of his<\/p>\n
     brother<\/p>\n
     appellant
\n                   Isaram.\n<\/p>\n
                           ig         Chaitram        is<\/p>\n
                     and brother of Tulshiram and Isaram.\n<\/p>\n
                                                                  the     father          of\n\n                                                                                            There\n                                                                                                 the\n                         \n     are     two    more brothers.                On the day of incident                       i.e.\n\n     on     07.10.2004 at 6.30 a.m.                   there was quarrel between\n\n     Tulshiram       and        his     son       Rupchand           on     one      side        and\n      \n\n\n     original       accused Nos.             1 to 6 on the other.                         Accused\n   \n\n\n\n<\/pre>\n
     were appellant Suresh, Punya, Rohidas, Bhavaji, Vikram<\/p>\n
     and     Chaitya          Konkani.           Initial           exchange          of        words<\/p>\n
     aggravated          in     to     a scuffle.            At      that       time        Janglu<\/p>\n
     Konkani        (P.W.3)            and        Parubai            (P.W.11)             Konkani<\/p>\n
     intervened          and     tried to stop the quarrel.                            However,<\/p>\n
     the     quarrel          did     not stop and again                  over       the        land<\/p>\n
     dispute       there        was     exchange of            words          and      fighting<\/p>\n
     continued.           At that time the appellant gave blow with<\/p>\n
     a     yoke (Dussar) of bullock-cart which was lying there<\/p>\n
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\n                                               (    3    )<\/p>\n
     on     the        head of Rupchand.               As a result, Rupchand               was<\/p>\n
     injured.               Thereafter, Rupchand was first taken to the<\/p>\n
     Government Hospital at Nawapur.                        While at the hospital<\/p>\n
     P.W.2-Tulshiram             lodged           complaint (Exh.66).               On     the<\/p>\n
     advice        of        doctor,       Rupchand was taken to               a    private<\/p>\n
     hospital at Dhule.                On the next day Rupchand died.\n<\/p>\n
     3.           Police        investigated the case.                  They       attached<\/p>\n
     yoke in question.                They recorded statements of various<\/p>\n
     witnesses.              Ultimately           charge-sheet was sent to                 the<\/p>\n
     Court.\n<\/p>\n
     4.           The        prosecution in all examined 13 witnesses.\n<\/p>\n
     Relying           on     their        evidence     the    learned         Additional<\/p>\n
     Sessions           Judge,     Nandurbar, convicted                 the      appellant<\/p>\n
     alone        of         offence punishable under Section 302                         read<\/p>\n
     with     Section 34              of     the    I.P.C.     As     per the         order,<\/p>\n
     Appellant-Suresh                 was     acquitted        of       the        offences<\/p>\n
     punishable             under Sections 143, 147, 148, 149, 504 and<\/p>\n
     506     of        the I.P.C.           Out of fine amount, an amount                    of<\/p>\n
     Rs.      8000\/-           was ordered to be paid to complainant                           –\n<\/p>\n
     Tulshiram as compensation under Section 357 (1) (c) of<\/p>\n
     the     Cr.P.C.           Remaining accused were convicted of                         the<\/p>\n
     offence punishable under Section 324 read with Section<\/p>\n
     34 of the I.P.C.                 and they were released on probation.\n<\/p>\n
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                                           (     4    )\n\n\n\n\n     However,        each       of original accused Nos.                 2 to      6    was\n\n     directed         to        pay    compensation         of       Rs.1000\/-            to\n\n\n\n\n                                                                                   \n     complainant           -    Tulshiram.          We do not find             order      of\n\n     acquittal        or       conviction of accused Nos.                 2 to 6        for\n\n\n\n\n                                                           \n<\/pre>\n
     remaining offences with which they were charged.\n<\/p>\n
     5.         At       Exh.41        there    is charge against               all     six<\/p>\n
     accused       and         the charges against all the accused                      are<\/p>\n
     under     Sections 143, 147 read with 149, 148 read                               with<\/p>\n
     149,    302      (simplicitor),            504 (simplicitor)               and     506<\/p>\n
     (simplicitor).\n<\/p>\n
                            ig   It     is unfortunate that<\/p>\n
     Additional Sessions Judge did not apply his mind while
\n                                                                         the     learned<\/p>\n
     framing       charge.            Section       143 of the I.P.C.              is     an<\/p>\n
     offence         of        being    member        of   unlawful            assembly.\n<\/p>\n
     Offences under Sections 146 and 147 of the I.P.C.                                  are<\/p>\n
     as follows:-\n<\/p>\n
               “146.\n<\/p><\/blockquote>\n
                146. Rioting – Whenever force or violence is
\n               used by an unlawful assembly, or by any member<\/p>\n
               thereof, in prosecution of the common object
\n               of such assembly, every      member of    such
\n               assembly is guilty of the offence of rioting.\n<\/p><\/blockquote>\n
               147.   Punishment for rioting – Whoever is
\n               guilty of rioting, shall be punished with
\n               imprisonment of either description for a term<\/p>\n
               which may extend to two years, or with fine,
\n               or with both.”\n<\/p><\/blockquote>\n
     6.        The        offence       under Section 147 of the                   I.P.C.\n<\/p>\n
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                                      (    5   )\n\n\n\n\n     is    an individual offence and each member is guilty of\n\n<\/pre>\n
     offence of rioting if conditions of Section 146 of the<\/p>\n
     I.P.C.      are fulfilled.          In fact offence under Section<\/p>\n
     147     of the I.P.C.       is aggravated form of the                offence<\/p>\n
     punishable under Section 143 of the I.P.C.\n<\/p>\n
     7.         Section 148 of the I.P.C. is as follows:-\n<\/p>\n
                “148.\n<\/p><\/blockquote>\n
                 148.   Rioting, armed with deadly weapon.   –\n<\/p><\/blockquote>\n
                Whoever is guilty of rioting, being armed with
\n                a deadly weapon or with anything which, used<\/p>\n
                as a weapon of offence, is likely to cause
\n                death, shall be punished with imprisonment of
\n                either description for a term which may extend
\n                to three years, or with fine, or with both.”\n<\/p><\/blockquote>\n
     .          Thus    offence under Section 148 of the                  I.P.C.\n<\/p>\n
     is also an individual offence by a member of guilty of<\/p>\n
     rioting,     who    is     armed with deadly       weapon         or     with<\/p>\n
     anything     which, used as weapon of offence, is                    likely<\/p>\n
     to    cause death.       So, there could not have been charge<\/p>\n
     under    Section     147    read with Section          149      or     under<\/p>\n
     Section 148 read with Section 149 of the I.P.C.\n<\/p>\n
     8.         Section 149 of the I.P.C.          is as follows:-\n<\/p>\n
               “149.\n<\/p><\/blockquote>\n
                149.     Every member of unlawful      assembly
\n               guilty    of offence committed in prosecution of<\/p>\n
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\n                                           (   6   )<\/p>\n
                common object – If an offence is committed by
\n                any   member of an     unlawful assembly    in
\n                prosecution of the common object of that
\n                assembly, or such as the members of that<\/p>\n
                assembly knew to be likely to be committed in
\n                prosecution of that object, every person who,
\n                at the time of the committing of that offence,<\/p>\n
                is a member of the same assembly, is guilty of
\n                that offence.”\n<\/p><\/blockquote>\n
     .          So,        it is clear that under this section every<\/p>\n
     member     of        unlawful assembly is        constructively               held<\/p>\n
     guilty of offence which is committed in prosecution of<\/p>\n
     common     object of the assembly or when offence is such<\/p>\n
     that<\/p>\n
     committed        in<\/p>\n
              members of the assembly knew to be likely to<\/p>\n
                             prosecution of the common object.\n<\/p>\n
                                                                                      be<\/p>\n
                                                                                    So,<\/p>\n
     this     Section puts vicarious liability on every member<\/p>\n
     of     unlawful        assembly      and     hold him     guilty         of    any<\/p>\n
     offence        which        is committed in prosecution of                common<\/p>\n
     object     or when such member knew it to be likely to be<\/p>\n
     committed in prosecution of the common object.\n<\/p>\n
     9.         Here        in     the present case there is no                charge<\/p>\n
     under     Section           302   read     with Section       34     or       under<\/p>\n
     Section        302     read       with   Section 149      of       the    I.P.C.<\/p>\n
\n\n     Though     as per prosecution case one blow with yoke was\n\n\n\n\n\n     given     by     accused          No.1 to deceased      Rupchand,           which\n\n     proved to be fatal &               no other accused gave blow which\n\n     resulted        in     death,       it is difficult to know why                the\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:06:04 :::<\/span>\n                                                (    7     )\n\n\n\n\n<\/pre>\n
     learned Additional Sessions Judge has framed charge of<\/p>\n
     committing the offence punishable under Section 302 of<\/p>\n
     the    I.P.C.           individually               against all          the      accused.\n<\/p>\n
     Similarly,             he        has     charged          all    six       accused         of<\/p>\n
     committing         individual offences under Sections 504 and<\/p>\n
     506    of    the        I.P.C.            There is         no    appeal         filed      by<\/p>\n
     original         appellant             Nos.    2 to 6, but,             fact      remains<\/p>\n
     that there was no charge against original accused Nos.\n<\/p>\n
     2     to 6 for committing offence under Section 324                                     read<\/p>\n
     with Section 34 of the I.P.C.                            Be that as it may.\n<\/p>\n
     10.         In<\/p>\n
                        this case P.W.8-Dr.                    Sunita Patil, who                is<\/p>\n
     examined at Exh.82, stated that on 07.10.2004 when she<\/p>\n
     was      working            as     the        Medical       Officer        at       Nawapur<\/p>\n
     Sub-District           Civil           Hospital, one Rupchand                  Tulshiram<\/p>\n
     Konkani      was admitted by his father.                          Rupchand was             in<\/p>\n
     unconscious         state.             He was vomiting blood.                  Blood was<\/p>\n
     oozing      from        his        nose and mouth.               He     had      grievous<\/p>\n
     injury      of 6 cms x 2 cms x 2 cms deep.                             The injury was<\/p>\n
     bone     deep.          The        patient was admitted at                    7.20      a.m.<\/p>\n
     History      of assault at 6 a.m.                        was given.        Within        ten<\/p>\n
     minutes          she        referred          the        patient      to      the     Civil<\/p>\n
     Hospital,          Dhule.              The          doctor        proved          medical<\/p>\n
     certificate         at       Exh.83.           The doctor           said       that      the<\/p>\n
     injury was possible with article No.4-wooden loft.                                         It<\/p>\n
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\n                                         (     8    )<\/p>\n
     is     in fact a yoke called “Dussar” in local                         language.\n<\/p>\n
     The doctor denied in cross-examination that the injury<\/p>\n
     is     possible if a person is pushed from front side and<\/p>\n
     falls on back side of his head on the road or on metal<\/p>\n
     spread on the road.\n<\/p>\n
     11.       P.W.9-Dr.         Pathak examined at Exh.85 performed<\/p>\n
     post     mortem examination on the dead body of                          Rupchand<\/p>\n
     on     09.10.2004        between       7 a.m.      to 8 a.m.           He     found<\/p>\n
     following         four     injuries          on    the    person         of      the<\/p>\n
     deceased:-\n<\/p>\n
     (1)     Stitched wound present over posterior aspect
\n     of scalp in right occipital region, horizontally
\n     situated of size 2 cms. x 0.25 cm. situated 5.5 cms.
\n     away from midline. On opening stitches, no evidence
\n     of infection seen. Injury was bone deep.\n<\/p>\n
     (2)     Contusion of size 1 cm. x 1 cm. present                                      2<\/span><\/p>\n
     cms medial to injury No.1, reddish brown in colour.\n<\/p>\n
     (3)     Contusion of size 2 cms. x 1.5 cms. present
\n     medially and posteriorly, 2.5 cms. to injury No.1,
\n     reddish brown in colour.\n<\/p>\n
     (4)     Contusion present over right fronto parietal
\n     region of size 6 cms. x 7 cms., reddish brown in
\n     colour.\n<\/p>\n
     12.       According         to     the       doctor the       injuries          were<\/p>\n
     antemortem        caused within 24 to 48 hours before death.<\/p>\n
\n\n     On     internal     examination the doctor found                     underscalp\n\n     haematoma,        reddish        brown       in   colour,       present         over\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 14:06:05 :::<\/span>\n                                       (    9    )\n\n\n\n\n     frontal,     both     parietal       and       occipital        regions        and\n\n     depressed     fracture      over      right occipital              region        of\n\n\n\n\n                                                                               \n     skull, circular of size 3.5 cms.                 x 4 cms., consistent\n\n<\/pre>\n
     with injury No.1 mentioned in column No.17.                          There was<\/p>\n
     evidence of infiltration and extravasation of blood in<\/p>\n
     fracture     line     present.       The cause of death was                   head<\/p>\n
     injury.      The injury was sufficient to cause death                            in<\/p>\n
     the ordinary course of nature.                 The doctor proved P.M.\n<\/p>\n
     notes at Exh.86.          The doctor also stated that external<\/p>\n
     injuries     so     also internal damage were sufficient                         to<\/p>\n
     cause<\/p>\n
     nature,
\n               death<\/p>\n
                         of    a person in the ordinary<\/p>\n
                 if blow was given with article 4 – yoke.\n<\/p>\n
                                                                        course        of\n\n                                                                                    The\n                       \n     doctor     denied that injury Nos.              1 to 4 were            possible\n\n     by fall on hard surface.\n      \n\n\n     13.        P.W.1-Bharat      Konkani         proved spot           panchanama\n   \n\n\n\n     (Exh.63)     and     it    shows      that       spot     was      shown         by\n\n     P.W.2-Tulshiram, who is complainant.                    The incident had\n\n     taken     place     in    front of house of            Tulshiram,           where\n\n\n\n\n\n     there was cement concrete road of 10 feet width.                              Some\n\n     bloodstains        were   seen       and sample of          the      same      was\n\n     taken.     The panch also proved panchanama of seizure of\n\n\n\n\n\n     clothes of deceased at Exh.64.\n\n\n\n     14.        P.W.4-Gulab      Konkani proved arrest                  panchanama\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:06:05 :::<\/span>\n                                         (    10    )\n\n\n\n\n     of      the     accused.         The     accused      was      arrested           on\n\n<\/pre>\n
     07.10.2004.          On the shirt on the person of the accused<\/p>\n
     there were bloodstains.                It was attached.           The witness<\/p>\n
     did     not support the panchanama regarding discovery of<\/p>\n
     yoke by the accused.\n<\/p>\n
     15.         Ocular        evidence       consists       of     evidence           of<\/p>\n
     P.W.2-Tulshiram,             P.W.3-Janglya                   Konkani            and<\/p>\n
     P.W.11-Parubai           Konkani.        P.W.12-Utrya            Konkani        has<\/p>\n
     turned      hostile.       P.W.2-Tulshiram stated that over the<\/p>\n
     boundary<\/p>\n
                    bund quarrel had occurred and during quarrel<\/p>\n
     appellant-Suresh Konkani had given blow with a yoke on<\/p>\n
     the     head      of Rupchand.         He further stated            that       then<\/p>\n
     Rupchand       was       taken to the Government             Hospital.            He<\/p>\n
     proved      his complaint at Exh.66.               He further said that<\/p>\n
     Rupchand       was first taken to Nawapur hospital and then<\/p>\n
     he    was      taken to private hospital at Dhule, where                          he<\/p>\n
     died.         In cross-examination P.W.2-Tulshiram                      admitted<\/p>\n
     that he had four brothers.                They are Chaitram, Isaram,<\/p>\n
     Bhauji      and      Utarya.      They       had   ancestral          property.\n<\/p>\n
     Partition         had taken place between the brothers.                        Land<\/p>\n
     of    Isaram       was     cultivated by his          sons.         There       was<\/p>\n
     quarrel        between     him    and     sons of       Isaram        over      the<\/p>\n
     boundary       bund.      In cross-examination it is found that<\/p>\n
     to    various        questions, the witness was not                   ready       to<\/p>\n
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\n                                            (     11        )<\/p>\n
     answer        and he kept silence.                Thus, question was asked<\/p>\n
     whether        one     day prior to the incident                       in     question,<\/p>\n
     there     was        quarrel over the boundary bund.                            However,<\/p>\n
     there     was        no reply.        The witness did not answer                        the<\/p>\n
     question        whether        concerned Surpanch had                     intervened.\n<\/p>\n
     He did not answer the question who had lifted Rupchand<\/p>\n
     from the spot.             He did not answer who told contents of<\/p>\n
     complaint        to        Police.         He     did      not      answer       whether<\/p>\n
     Surpanch        was against party of the then Minister – Mr.<\/p>\n
     Swarupsingh           Naik.     He did not answer whether Rajkapur<\/p>\n
     was<\/p>\n
     the     party<\/p>\n
             brother of Surpanch and Rajkapur was belonging to<\/p>\n
                          of Mr.        Naik and whether all accused                        were<\/p>\n
     from     the party of Mr.              Naik.          The witness did not say<\/p>\n
     how the incident started.\n<\/p>\n
     16.        P.W.3-Janglya             Konkani who is Surpanch of                         the<\/p>\n
     village        and who supported the prosecution case stated<\/p>\n
     that     on     07.10.2004           when        he       was      present       in     the<\/p>\n
     court-yard,           he     saw     all        accused       on     one      side      and<\/p>\n
     Tulshiram        and       Rupchand        on other           side.         They       were<\/p>\n
     quarrelling           with     each       other and he             intervened           and<\/p>\n
     stopped        the     quarrel but again the                    quarrel         started.<\/p>\n
\n\n\n\n\n\n     Bhauji        Kashya       caught hold of Tulshiram and                         Rupchand\n\n     came     there.            All the accused started                   assaulting           by\n\n     fist      and        kick     blows         to        Rupchand.           Thereafter,\n\n\n\n\n                                                                ::: Downloaded on - 09\/06\/2013 14:06:05 :::<\/span>\n                                            (    12     )\n\n\n\n\n     remaining        accused caught hold of Rupchand and accused\n\n     No.1     Suresh           gave    blow     with yoke          to     Rupchand        and\n\n\n\n\n                                                                                     \n     Rupchand fell down.                In cross-examination, the witness\n\n     admitted        that        when quarrel was going on, beside                        him\n\n\n\n\n                                                             \n     his wife and Devlya Rajya had also gathered there.                                     He\n\n     admitted        that        Bhauji     Kashya          had     caught        hold      of\n\n\n\n\n                                                            \n     Tulshiram,           so     Rupchand       came       there     to       rescue      his\n\n     father.\n\n\n\n\n                                               \n     17.        P.W.11-Parubai             has       stated that at 6.30                 a.m.\n\n     to     7.00     a.m.\n                            ig       on 07.10.2004 quarrel\n\n<\/pre>\n
     between Tulshiram and Rupchand on one side and accused
\n                                                                        was      going      on<\/p>\n
     Nos.     1 to 6 on other side.                  There was scuffle between<\/p>\n
     the     two     groups.          This witness was in a                position         to<\/p>\n
     speak in Marathi.                The witness further stated that she<\/p>\n
     herself        and        her    husband     intervened            and      tried      to<\/p>\n
     convince        both sides.          Even then they did not stop and<\/p>\n
     started        assaulting          each other.         Again        fighting         was<\/p>\n
     going     on.         There was land dispute.                 Yoke of         bullock<\/p>\n
     cart     was     lying           near house of         Chaitram.            Appellant<\/p>\n
     Suresh        picked up that yoke and gave blow on the                              head<\/p>\n
     of     Rupchand.            There     is no reason why               this     witness<\/p>\n
     should        be disbelieved.             She denied that Rupchand                   was<\/p>\n
     pushed        by somebody and Rupchand fell down.                          She      also<\/p>\n
     said     that        Rupchand        did    not fall on            any      stone      or<\/p>\n
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\n                                           (   13    )<\/p>\n
     boulder.         We       find     evidence of        P.W.11-Parubai              more<\/p>\n
     reliable        and       convincing.         She     stood       the      test      if<\/p>\n
     cross-examination.                The    learned Trial Judge did                   not<\/p>\n
     believe       story of other two eye-witnesses that accused<\/p>\n
     Nos.      2     to 6 had caught hold Rupchand, when                         accused<\/p>\n
     No.1 Suresh inflicted blow with the yoke.<\/p>\n
\n\n\n\n\n                                                          \n     18.        Shri           C.R.      Deshpande,            advocate       for       the\n\n     appellant        argued          that the case would not fall                   under\n\n\n\n\n                                             \n     Section       302     of the I.P.C., but it would                    fall       under\n\n\n\n     pre-plan.           The\n                           \n     Section 304 of the I.P.C.\n\n                                 land\n                                               He stated that there was no\n\n                                          dispute        was     not     between        the\n                          \n     appellant        and the deceased.            The dispute was               between\n\n     father     of the deceased and sons of Isaram.                           There was\n\n     no     intention to cause death.               There was no motive                   to\n      \n\n\n     cause death of Rupchand.                 The incident had occurred at\n   \n\n\n\n     the    spur      of moment.          In the quarrel, only                one      blow\n\n     with     yoke was given.             Therefore, the offence would be\n\n     under Section 304 of the I.P.C.                     and not under Section\n\n\n\n\n\n     302 of the I.P.C.                He also argued that since there was\n\n     no intention, the offence cannot be one of murder.                                   He\n\n     also     argued       that exception fourth of Section 300                           of\n\n\n\n\n\n     the I.P.C.          is applicable.\n\n\n\n     19.        On       the     other hand Shri K.G.                Patil,         A.P.P.\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 14:06:05 :::<\/span>\n                                           (    14   )\n\n\n\n\n     for     the     respondent\/State           argued that this              case      is\n\n<\/pre>\n
     clearly covered under Clause Thirdly of Section 300 of<\/p>\n
     the I.P.C.           and the appellant has caused fatal injury,<\/p>\n
     which     he intended to inflict and it was sufficient to<\/p>\n
     cause death in the ordinary course of nature.                              He also<\/p>\n
     argued        that     the    case       does not    fall       under       fourth<\/p>\n
     exception.\n<\/p>\n
     20.          Shri      C.R.    Deshpande cited certain cases.                      He<\/p>\n
     cited     case        of Daya Nand Vs.         State of Haryana,                2008<\/p>\n
     ALL<\/p>\n
     Court
\n             MR<\/p>\n
               has<\/p>\n
                   (Cri) 2279 (S.C.).            In that case the<\/p>\n
                          laid down distinction between Section
\n                                                                               Supreme<\/p>\n
                                                                                      300<\/span><\/p>\n
     and     Section       304 of the I.P.C.            The learned           advocate<\/p>\n
     referred        to    para Nos.      10 and 11 of the               said      case.\n<\/p>\n
     The     Supreme       Court has laid down that safest                     way      of<\/p>\n
     approach        is    to     keep in mind the key words                  used      in<\/p>\n
     various         clauses       of     Sections        299      and      300.          A<\/p>\n
     comparative          table is also given in the said case.                         In<\/p>\n
     para     17 of the said case following observations                             from<\/p>\n
     page     468 of Virsa Singh v.              State of Punjab, AIR<\/a> 1958<\/p>\n
     S.C.    465,
\n             465 are quoted with approval:-\n<\/p>\n
                  “The question is not whether the prisoner
\n                  intended to inflict a serious injury or a
\n                  trivial one but whether he intended to inflict
\n                  the injury that is proved to be present.    If
\n                  he can show that he did not, or if the
\n                  totality of the circumstances justify such an<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:06:05 :::<\/span>
\n                                 (   15    )<\/p>\n
              inference, then of course, the intent that the
\n              section requires is not proved. But if there
\n              is nothing beyond the injury and the fact that
\n              the appellant inflicted it, the only possible<\/p>\n
              inference is that he intended to inflict it.\n<\/p><\/blockquote>\n
              Whether he knew of its seriousness or intended
\n              serious consequences, is      neither here or<\/p>\n
              there.    The question, so far as the intention
\n              is concerned, is not whether he intended to
\n              kill, or to inflict an injury of a particular
\n              degree of serioueness but whether he intended
\n              to inflict the injury in question and once the<\/p>\n
              existence    of the injury     is proved    the
\n              intention to cause it will be presumed unless
\n              the evidence or the circumstances warrant an
\n              opposite conclusion.”\n<\/p>\n
     21.      In this case there is no material to show that<\/p>\n
     the<\/p>\n
     particular<\/p>\n
           accused\/appellant<\/p>\n
                     bodily
\n                                did not intend to inflict<\/p>\n
                              injury     which        is       caused,
\n                                                                              the<\/p>\n
                                                                              but<\/p>\n
     unintentionally     or due to some other cause the injury<\/p>\n
     was   caused.    In this case the doctor has stated                     that<\/p>\n
     the   injury on the head was sufficient in the ordinary<\/p>\n
     course   of     nature to cause death.         So, we are of             the<\/p>\n
     opinion that clause thirdly is clearly applicable.\n<\/p>\n
     22.      Exception 4 to Section 300 is as follows:-\n<\/p>\n
              “300.   Exception 4 – Culpable homicide is not
\n              murder    if   it    is   committed    without
\n              premeditation in a sudden fight in the heat of
\n              passion upon a sudden quarrel and without the<\/p>\n
              offender having taken undue advantage or acted
\n              in a cruel or unusual manner.\n<\/p><\/blockquote>\n
              Explanation – It is immaterial in such cases
\n              which party offers the provocation or commits
\n              the first assault.”\n<\/p><\/blockquote>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:06:05 :::<\/span><\/p>\n
                                           (    16   )\n\n\n\n\n     23.         Evidence         of P.W.3-Janglya and             P.W.11-Parubai\n\n\n\n\n                                                                                 \n     clearly        shows     that scuffle was going on between                       two\n\n     groups.         They were giving blows to each other.                          It is\n\n\n\n\n                                                         \n<\/pre>\n
     also admitted position that dispute over boundary bund<\/p>\n
     was     between        P.W.2-Tulshiram         and sons of           Punya       and<\/p>\n
     there       was no dispute between appellant and Tulshiram.\n<\/p><\/blockquote>\n
     Evidence        of P.W.11-Parubai shows that the yoke                         which<\/p>\n
     was     lying there was taken up by appellant Suresh                             and<\/p>\n
     he     gave blow with it on the head of Rupchand.                           Single<\/p>\n
     blow<\/p>\n
     high.\n<\/p>\n
              was     given.\n                            ig      It appears that passions had\n\n<\/pre>\n
                  It did not happen that the offender had
\n                                                                                    risen<\/p>\n
                                                                                    taken<\/p>\n
     any     undue     advantage          or acted in cruel            and     unusual<\/p>\n
     manner.         There        is nothing on record to show that                     it<\/p>\n
     was the appellant’s side which had offered provocation<\/p>\n
     or      committed            first       assault.        Considering             the<\/p>\n
     circumstances           of    the case, we are of the                considered<\/p>\n
     opinion        that the present case falls under exception 4<\/p>\n
     of     Section 300 of the I.P.C.               Therefore, the             offence<\/p>\n
     committed        will        be under Section 304, Part I                 of     the<\/p>\n
     I.P.C.         The appellant was 23 years of age at the time<\/p>\n
     of incident.           He is illiterate.           Shri C.R.         Deshpande,<\/p>\n
     Advocate        for     the     appellant stated          that       these       are<\/p>\n
     tribals        coming from tribal area of Nandurbar.                          There<\/p>\n
     is     no    evidence         of previous      criminal         record.          So,<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:06:05 :::<\/span>
\n                                      (    17    )<\/p>\n
     considering       totality of the circumstances, we are                         of<\/p>\n
     the opinion that rigorous imprisonment for seven years<\/p>\n
     and    fine of Rs.        10,000\/- (Rupees Ten Thousand) would<\/p>\n
     be    adequate     punishment for offence punishable                       under<\/p>\n
     Section 304, Part I of the I.P.C.\n<\/p>\n
     24.      In the result, we pass following order:-\n<\/p>\n
     (1)      The appeal is partly allowed.\n<\/p>\n
     (2)      The\n\n              14.02.2007\n                       \n                       order     of conviction and\n\n                                 passed    by the learned\n                                                              sentence          dated\n\n                                                                       Additional\n                      \n              Sessions      Judge, Nandurbar is hereby set aside\n\n              and      the appellant instead is convicted of the\n\n              offence       punishable under Section 304, Part                         I\n      \n\n\n              of      the   I.P.C.        and       sentenced        to       suffer\n   \n\n\n\n              rigorous      imprisonment for seven years and                         to\n\n<\/pre>\n
              pay fine of Rs.10,000\/- (Rupees Ten Thousand),<\/p>\n
              in      default,     to suffer rigorous               imprisonment<\/p>\n
              for one year.\n<\/p>\n
     (3)      The order regarding payment of compensation is<\/p>\n
              maintained.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:06:05 :::<\/span><\/p>\n
                              (   18   )<\/p>\n
     [P.R. BORKAR,J.]                        [P.V. HARDAS,J.]<\/p>\n
     snk\/2008\/NOV08\/crap100.07<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 14:06:05 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Suresh vs The State Of Maharashtra on 28 November, 2008 Bench: P.V. Hardas, P. R. Borkar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-87881","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSuresh vs The State Of Maharashtra on 28 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/suresh-vs-the-state-of-maharashtra-on-28-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Suresh vs The State Of Maharashtra on 28 November, 2008 - 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