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Kashinath Mahipal Gaikwad and ors. Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 535 of 1980
Judge
Reported in1982(2)BomCR337
ActsIndian Penal Code (IPC), 1860 - Sections 34, 302, 304, 323, 341 and 504
AppellantKashinath Mahipal Gaikwad and ors.
RespondentState of Maharashtra
Appellant AdvocateC.A. Phadkar, Adv.
Respondent AdvocateM.D. Gangakhedkar, P.P.
Excerpt:
.....the appellants, submitted that the offence would at best be one under section 304 part ii of the penal code. considering the established facts and considering the evidence of the aforesaid two eye-witnesses once again in the light of the aforesaid rival contentions, we are of the view that a better and safer inference would be of an offence punishable under section 304 part ii of the penal code. 2 of the intention requisite within the meaning of part i of section 304. better inference and conclusion also consistent with the evidence and circumstances would be knowledge of accused no. even otherwise, well-settled position being that unless the circumstance in question is capable of being explained on only one and one hypothesis and that too inconsistent with the innocence of the..........convicted of offences punishable under section 302 and section 323 read with section 34 of the penal code. for the offence punishable under section 302 read with section 34, they were sentenced to suffer like imprisonment and for the offence punishable under section 323 read with section 34, they were sentenced to suffer rigorous imprisonment for six months. both the said sentences were directed to run concurrently. the original accused no. 4 was acquitted of all the charges levelled against him. accused nos. 1, 2 and 3 were also acquitted of the charge of offences punishable under section 341 and section 504 read with section 34 of the penal code. it is against their conviction and sentence under section 302 read with section 34 as also their conviction under section 323 read with.....
Judgment:

S.C. Pratap, J.

1. In Sessions Case No. 7 of 1980, Sessions Court, Nasik, accused Nos. 1, 2 and 3 were convicted of offences punishable under section 302 and section 323 read with section 34 of the Penal Code. For the offence punishable under section 302 read with section 34, they were sentenced to suffer like imprisonment and for the offence punishable under section 323 read with section 34, they were sentenced to suffer rigorous imprisonment for six months. Both the said sentences were directed to run concurrently. The original accused No. 4 was acquitted of all the charges levelled against him. Accused Nos. 1, 2 and 3 were also acquitted of the charge of offences punishable under section 341 and section 504 read with section 34 of the Penal Code. It is against their conviction and sentence under section 302 read with section 34 as also their conviction under section 323 read with section 34 that the original accused Nos. 1, 2 and 3 have preferred this appeal.

2. Briefly stated, the prosecution case has been thus : Accused No. 1 is the father of accused Nos. 2 and 3. It is a family of agriculturists residing at village Khamgaon in Nasik district. Deceased Govind and his father Rajaram (P.W. 6) are also from a family of agriculturists residing in the same village. Lands of the two families were adjacent to each other. Some disputes were existing between the two families in relation to bandh and water. On the morning at about 7 a.m. of 13th September, 1979, Rajaram and his son Govind had gone to their field to watch the crop and scare away birds. The accused had also that time gone to their own field. They had with them sticks and an axe. Case of the prosecution is that accused No. 1 picked up a quarrel with Rajaram and Govind and hurled abuses at them. Subsequently, accused No. 3 held Govind. Later accused No. 2 gave a blow on the head of Govind with the blunt and back side of the axe in his hand. Accused No. 3 gave a stick blow on the arm of Rajaram. The injured Govind went to the medical dispensary. His father Rajaram lodged an N.C. Complaint at about 9 a.m. with the Yeola Taluka Police Station under sections 323, 504 and 506 of the Penal Code. From the medical dispensary the injured Govind was sent to the Civil Hospital at Nasik. He, however, succumbed to his injury at about five in the evening of the next day 1st September, 1979. After the death of Govind, offence was registered against the accused persons inter alia under section 302 of the Penal Code. After completion of investigation, the accused were charge-sheeted to stand their trial for offended punishable under sections 302, 323, 341 and 504 read with section 34 of the Penal Code. The learned Additional Sessions Judge who tried the accused passed the respective orders of their conviction and sentence as also of acquittal as already stated hereinabove.

3. The State has not chosen to file any appeal against the acquittal of accused No. 4 nor has the State filed any appeal against the acquittal of accused Nos. 1, 2 and 3 of the charges under sections 341 and 504 read with section 34 of the Penal Code. This appeal by original accused Nos. 1, 2 and 3 thus concerns their conviction and sentence under section 302 read with section 34 as also section 323 read with section 34 of the Penal Code.

4. In support of the appeal, we have heard Mr. C.A. Phadkar, learned Counsel for the appellants-accused. The State is represented by the learned Public Prosecutor Mr. M.D. Gangakhedkar.

5. Case of the prosecution turns about the testimony of two witnesses viz., Rajaram Deoba Chikane (P.W. 6), father of the deceased Govind and Ghama Kisan Bombale (P.W. 7) who was present near the scene of the incident at the relevant time. No other witness who can be said to be an eye-witness to the incident has been examined. Decision of this appeal thus turns on consideration of the evidence of these two witnesses. We have been taken through the evidence of both these witnesses. We have also been taken through the medical evidence relating to the injuries on the deceased Govind as also on his father Rajaram (P.W. 6) as also injuries on the accused persons.

6. Taking up first the class relating to accused No. 1, we find, on going through the aforesaid evidence, nothing at all to implicate accused No. 1 Kashinath either with the stick assault purported to have been given by accused No. 3 to Rajaram or with assault with the blunt end of the axe by accused No. 2 to Govind. The testimony of both the eye-witnesses a best indicates that accused No. 1 Kashinath was giving only abuses to Rajaram and Govind. No other inference is possible from the testimony of these eye-witnesses nor is any other interference even suggested on behalf of the State. The highest that can, therefore, be said to emerge from the testimony of the aforesaid two eye-witnesses, so far as accused No. 1 is concerned, is that he was giving abuses to Rajaram and Govind. There is not a little of material on the record to indicate any other part so far as the accused No. 1 Kashinath is concerned. Even taking into considering the charge under section 34, we find it impossible to come to any positive conclusion in favour of the prosecution in that behalf. Evidence in this behalf also falls hopelessly short of any just finding against accused No. 1. The highest, therefore, that can be said, so far as accused No. 1 Kashinath is concerned, is that he was giving abuses. But in this behalf also, the actual abuses purported to have been given are not established and accused No. 1, therefore, has been rightly acquitted of this charge. We, however, find the conviction of accused No. 1 Kashinath under section 302 read with section 34 as also under section 323 read with section 34 totally unsustainable. Neither of these convictions is supported by any legal evidence on record. Both theses convictions recorded against accused No. 1 will, therefore, have to be set aside.

7. Coming then to the case against accused No. 2, the evidence of the aforesaid two eye-witnesses leads to the cogent and satisfactory conclusion that accused No. 2 gave on the head of the victim Govind a blow by the blunt and back side of the axe which was in his hand at that time. That was the only solitary blow. Recovery of the axe in question in the course of investigation did not disclose any blood thereon. Possession of the axe in question by accused No. 2 at the relevant time was a natural phenomenon, he being an agriculturist actually working on his land. After the blow in question, Govind went to the local dispensary for treatment. Rajaram went to the police station where his complaint was recorded as an N.C. Complaint. The said complaint states that accused No. 2 gave a blow of axe in his hand by the blunt side and caused hurt on the head of Govind. This complaint was recorded under section 323 of the Penal Code. Govind who had initially gone to the local dispensary was later taken to the Civil Hospital. He was being treated for the injury in question. Unfortunately, he succumbed to the said injury on the evening of the next day. Question that arises for our determination and which is material is what is the nature of the offence committed by accused No. 2 Suryabhan. It may be observed that even the learned Public Prosecutor was unable to the support the finding of the learned trial Judge that the offence would be one of culpable homicide amounting to murder punishable under section 302 of the Penal Code. He, however, submitted that it would be an offence punishable under section 304 Part I of the Penal Code, whereas Mr. Phadkar, learned Counsel for the appellants, submitted that the offence would at best be one under section 304 Part II of the Penal Code. Considering the established facts and considering the evidence of the aforesaid two eye-witnesses once again in the light of the aforesaid rival contentions, we are of the view that a better and safer inference would be of an offence punishable under section 304 Part II of the Penal Code. It is not possible on the material on record to impute the requisite intention to accused No. 2 so as to bring the offence committed by him under Part I of section 304. The material on record is, however more than satisfactory to impute to the said accused No. 2 the requisite knowledge within the meaning of the said provision. Surrounding circumstances also support this inference which we are inclined to draw. The very first complaint which was an N.C. Complaint recorded very soon after the incident in question and lodged at the instance mentions accused No. 2 having caused hurt to Govind. The subsequent information lodged by Rajaram after a few hours of the recording of the N.C. Complaint states that accused No. 2 to the local dispensary for treatment of the said injury and later to the Civil Hospital. Record shows that it was on the evening at about 5 p.m. on the next day that Govind succumbed to the injury. The injury itself was, as already indicated, by the wrong and the blunt side of the axe in question. The N.C. Complaint further indicates the statement of Rajaram to the effect that accused No. 2 threatened that if Govind again went to the land, he would be murdered. The eye-witness account of the incident emerging from the testimony of Rajaram and Ghama (P.W. 6 and P.W. 7 respectively) establishes nothing more than a solitary blow on the head of Govind with the wrong and blunt side of the axe in question which happened to be in the hand of accused No. 2 at that time. Evidence shows that after the said blow, Govind fell down. That is all the evidence on record. On the basis of this evidence and the circumstances, it is extremely difficult to draw any inference against accused No. 2 of the intention requisite within the meaning of Part I of section 304. Better inference and conclusion also consistent with the evidence and circumstances would be knowledge of accused No. 2 Suryabhan so as to bring the offence committed by him within the meaning of Part II of section 304 of the Penal Code. The conviction of accused No. 2 under section 302 of the Penal Code will, therefore, have to be altered to one under section 304 Part II of the Penal Code. So far as sentence for the aforesaid offence is concerned, we have heard the rival submission of the respective Counsels. In our view, sentence of five years, rigorous imprisonment would meet the ends of justice.

8. So far as conviction of accused No. 2 Suryabhan for offence punishable under section 324 read with section 34 is concerned, we find the same to be not justified by the evidence and material on record. This conviction is based on a stick blow given by accused No. 3 Deoram on the left arm of prosecution witness Rajaram. Testimony of Rajaram himself as also the testimony of the other eye-witness Ghama makes it impossible to convict the present accused No. 2 for the said blow by accused No. 3 to Rajaram on the basis of section 34 of the Penal Code. There is not a single circumstance to which our attention was invited to apply section 34 to the present case. In these circumstances, the conviction of accused No. 2 Suryabhan under section 323 of the Penal Code is liable to be set aside.

9. Coming now to the conviction of accused No. 3 Deoram under section 302 read with section 34 of the Penal Code, the same cannot be sustained in the light of our earlier reasoning while dealing with the same conviction of accused Nos. 1 and 2. In view of our conclusion that accused No. 2 is, however, liable to be convicted under section 304 Part II of the Penal Code, the case against accused No. 3 may have to be considered in that context. But even so, we do not find in relation to accused No. 3 Deoram any material, any evidence and any circumstance to held him guilty for offence under Part II of section 304 of the Penal Code. The learned Public Prosecutor contended that evidence shows that accused No. 3 Deoram held the hand of Govind, the victim. Yes, the evidence factually shows that. But the said circumstance is capable of more than one explanation. Deoram could have held the hand of Govind to bring the scuffle to an end. He could have held the said hand with a view to prevent Govind from attacking or giving any blow to the accused persons. The holding of the hand cannot in the circumstances, be attributed only to the fact of the axe blow which late followed on the head of Govind at the hands of another accused viz., Suryabhan. We do not find any nexus as such or any reasonable connection between the blow given by accused No. 2 Suryabhan and the holding of Govind's hand by Deoram. Even otherwise, well-settled position being that unless the circumstance in question is capable of being explained on only one and one hypothesis and that too inconsistent with the innocence of the accused, it is not possible to rest a conviction on such circumstance. The circumstance of holding of hand is here capable of more than one reasonable explanation. We would, therefore, hold it a safer course to adopt to acquit accused No. 3 of even the lesser offence punishable under Part II of section 304 read with section 34 of the Penal Code.

10. That leaves us with the conviction of accused No. 3 Deoram under section 323 read with section 34 of the Penal Code. In the view of the evidence which we have taken, application of the section 34 of the Penal Code is out of question. Coming then to his conviction under section 323 simpliciter, evidences does establish that accused No. 3 gave a stick blow on the left arm of Rajaram. Medical evidence also corroborates the same. The cross-examination of the other eye-witness Ghama (P.W. 7) has not brought out any infirmity in that behalf. In the circumstances, we see no reason to take any different view of this action of accused No. 3 than the one taken by the learned trial Judge. We would, therefore, confirm the conviction of accused No. 3 under section 323 of the Penal Code. On the question of sentence for this conviction, we were inclined to impose a much lesser sentence than the one imposed by the learned trial Judge. We, however, find that accused No. 3 has already undergone the full sentence imposed on him in this behalf by the learned trial Judge. It would, therefore, be academic to alter the sentence in question.

11. In the result, this appeal is partly allowed.

Accused No. 1, Kashinath is acquitted of the offence punishable under section 302 read with section 34 of the Penal Code as also of offence punishable under section 323 read with section 34 of the Penal Code.

The conviction of accused No. 2, Suryabhan Kashinath under section 302 read with section 34 of the Penal Code is altered to one under section 304 Part II of the Penal Code simpliciter. For the said conviction, accused No. 2 is sentenced to suffer rigorous imprisonment for five years.

Convictions of accused No. 2, Suryabhan Kashinath under section 323 read with section 34 of the Penal Code is set aside and he is acquitted of the said charge.

Conviction of accused No. 3 Deoram Kashinath under section 302 read with section 34 of the Penal Code is set aside and he is acquitted of the said charge. His conviction under section 323 read with section 34 is altered to one under section 323 of the Penal Code simpliciter. The sentence imposed on him by the trial Judge in this behalf is, however, left undisturbed.

Bail bonds of accused Nos. 2 and 3 are cancelled.


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