S.P. Kurdukar, J.
1. This Criminal Appeal is filed by the appellants-accused challenging the Order of conviction and sentence dt. Oct. 4, 1979 in Sessions Case No. 58 of 1979, passed by the Additional Sessions Judge, Beed. The Appellant No. 1 (Accused No. 1) was convicted of the offence under Section 302 of the Penal Code and was sentenced to suffer rigorous imprisonment for life. Both the appellants were also convicted of an offence under Section 201 read with Section 34 of the Penal Code and each of them was sentenced to suffer rigorous imprisonment for three years. It is, this order of conviction and sentence which is the subject matter of this appeal.
2. The prosecution case lies within a very narrow compass and the same can be summarised as under;
Originally, six accused persons were tried for offence punishable under Sections 302,201,116 read with Section 34 of the Penal Code. However, accused Nos. 1 and 2 were alone found guilty and they were accordingly convicted by the learned Additional Sessions Judge. Rest of the accused were acquitted and their acquittal is final. One Bhau Mariba Nikalje, was the brother of Sitabai P.W.5 and he was residing at Nipani Jawalka. Since he was a landless person belonging to the Scheduled Caste, the Government of Maharashtra had given him a piece of land to cultivate in the said village. According to the prosecution, on Apr. 13, 1979, at about 9-00 P.M. Bhau Nikalje was sitting near the road and the distance between the road and the house of Sitabai was stated to be 20 feet. Accused No. 1 Kushaba Budhaji Bangar came near Bhau and there was some exchange of words between them. Accused No. 1 was asking Bhau not to stay in the village and he further abused him by saying that he had become arrogant because he had received a piece of land from the Government. According to the prosecution, therefore, there was a Maramari between accused No. 1 and Bhau, since deceased and during the course of said Maramari, accused No. 1 hit a stone on the head of the deceased Bhau and as a result of this assault, deceased sustained injury on his right temporal region and he was lying unconscious nearby the road. It is further alleged by the prosecution that thereafter accused No. 1 went away. It is then alleged by the prosecution that, Sitabai P.W.5 and Rukhminibai P.W.4 were all along sitting in the Court yard and watching the body of Bhau Nikalje. On the following day, i.e. Apr. 14, 1979, Mariba, the husband of Sitabai went to Gevrai to lodge at the police station a complaint, however, no such complaint was lodged at the police station.
3. It is then alleged by the prosecution that on Apr. 14, 197^, accused No. 1 and accused No. 2 and other accused persons came to the place of incident and they carried the dead body for burial The body was accordingly buried.
4. It is common ground that until P.S.I. Joshi lodged a First Information Report at Exhibit 35, no other witnesses ever approached either the police officer or the Police Station and lodged any complaint in respect of this incident. It is only the rumour that spread in the village that such an incident had occurred on Apr. 14, 1979, P.S.I. Joshi reached the village and recorded the statement of Sitabai on Apr. 19,1979. On recording such statement he came to know that deceased Bhau Nikalje was buried. Thereafter, he contacted Executive Magistrate and Medical Officer and requested them to remain present at the burial ground as he wanted to exhume the body of the deceased Bhau and accordingly, the body was exhumed from the burial ground on Apr. 19,1979. The body was then sent to Medical Officer for post-mortem. Dr. Sheshrao Solanke, P.W.I issued post-mortem notes Ex. 15. P.S.I. Joshi recorded the statement of various witnesses an
5. The defence of accused No. 1 is of total denial. According to him he has been falsely involved in the present crime. He denied that he had assaulted deceased Bhau.
6. So. far as the defence of accused No. 2 is concerned, he also denied that he was in any way concerned with the offence of murder of Bhau Nikalje. He however, admitted that on the following day, he was present at the time of burial of dead body of deceased Bhau. He pleaded that he was not knowing the incident and that he was innocent and therefore, he pleaded that he be acquitted.
7. The learned trial Judge on appreciation of oral and documentary evidence on record by his Judgment and Order dt. Oct. 4, 1979 found the appellant-accused No. 1 guilty of an offence punishable under Section 302 of the Penal Code and sentenced him to suffer rigorous imprisonment for life. The learned trial Judge found both the accused Nos. 1 and 2 guilty of an offence under Section 201 of the Penal Code read with Section 34 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for three years.
8. The entire prosecution case rests on the evidence of Rukhminibai P. W.4 and Sitabai P.W.5 who claim to be the eye-witnesses to the incident of assault. Rukhminibai P.W.4 and Sitabai P.W.5 are the co-wives of one Mariba and deceased Bhau was the brother of Sitabai, wife of Mariba. So far as the medical evidence in the present case is concerned, Dr. Solanke P.W.I, performed post-mortem on the body of deceased Bhau. Post-mortem notes are at Exh. 15. So far as the homicidal death of deceased Bhau is concerned, there does not appear to be much controversy. In view of the evidence of Dr. Solanke P.W.I, we feel no hesitation in concluding that deceased Bhau met a homicidal death on account of injuries on his right temporal region. Dr. Solanke has stated that he performed the post-mortem and he noticed the following injury;
(1) Lacerated wound on right carotid region 2 X 1 X 1 cms., blood clots were present around it.
He stated that the injury was ante-mortem. He also noticed fracture of right zygomatic arch i.e. bone and of right temporal bone from before backward 3 cms. long and linear. He further stated that covering of the brain matter was lightly seen. The brain matter was decomposed and liquefied. He opined that the cause of death was shock due to haemorrhage. He further stated that the contents of post-mortem notes Exh. 15 are correct. Dr. Solanke further stated that the external injury No. 1 could be caused due to stone. During the cross-examination he denied the suggestion that such an injury was caused due to fall. He asserted that from the nature of injuries it was clear that the deceased was assaulted by a stone. Except this, there is nothing in the cross-examination which would discredit the evidence of this witness. After going through the evidence of Dr. Solanke we see no hesitation in coming to the conclusion that deceased Bhau met the homicidal death.
9. The next material question is as to what was the involvement of accused No. 1 in the present crime. In order to establish the complicity of accused No. 1, the prosecution examined Sitabai P.W.5 and Rukhminibai P.W.4 who claim to be the eye-witnesses, Mariba was the brother-in-law of deceased Bhau. Rukhminibai, after referring to the grant of land of l>k acres by the Government to the deceased Bhau, stated that at about 9-00 P.M. on Apr. 13,1979, she was sitting at the door in the courtyard, accused No. 1, the brother of her husband came near the deceased and started abusing. Accused No. 1 was asking deceased Bhau as to who had allotted him the land and as to how he had became arrogant. The accused. No. 1 asked Bhau not to stay with him. She then stated that these was Maramari between the accused No. 1 and deceased Bhau and as soon as the Maramari started, the electricity went off and she could not definitely state as to with what accused No. 1 assaulted Bhau. She further stated that after the assault, Bhau was lying quiet near the road throughout the night Bhau was unable to speak and according to this witness Bhau was cremated (buried?) early in the morning on Apr. 14,1979. This is the only evidence so far as this incident is concerned. During the cross-examination she had admitted that because of darkness, she was unable to see anything and she only heard the noise of big stone hitting against something. She also admitted that she did not speak with the accused at that time. The next witness in regard to the incident is Sitabai wife of Mariba, P.W.5 and she is the real sister of deceased Bhau. According to her, at the relevant time, she was sitting in her courtyard and at that time she saw the deceased sitting near the road. She further stated that accused No. 1 went near the deceased Bhau and he asked him as to why he was staying in the village and who had given him the land. She further stated that there was exchange of words between them and all of a sudden, the electricity .went off. She further stated that the accused No. 1 hit the deceased with stone and consequently he fell down. She further stated that, Bhau was unable to speak. She further stated that, Bhau was cremated (buried?) in the early hours on Apr. 14, 1979. The only material cross-examination on behalf of the accused No. 1 is that due to darkness, she was unable to see anything. It is true, that, both the witnesses have admitted that, due to darkness, they could not see the actual assault by the accused No. 1 with the stone on Bhau but the sequence and the manner in which the subsequent events occurred as stated by these witnesses leaves no manner of doubt that there was a Maramari in which the accused No. 1 assaulted the deceased Bhau and immediately thereafter, the electricity went off. Deceased Bhau was lying unconscious near the place of offence. Shri Deshmukh, the learned Advocate appearing for both the accused was unable to point out any material omission or contradiction in the evidence of these witnesses which would make their evidence unbelievable. From the evidence of these two witnesses, it is clear that there was a maramari in between the accused No. 1 and the deceased and immediately thereafter, the deceased was found lying unconscious by the side of the road. On this evidence, the question is as to whether the accused No. 1 could be held guilty for an offence of homicidal death. Both these witnesses did not state in their evidence that the accused No. 1 continued to assault deceased Bhau after he fell down on the ground. Even the medical evidence is consistent with the story narrated by these witnesses that accused No. 1 hit the deceased Bhau only once, with stone. If this is so, the question that falls for our consideration is as to what offence the accused No. 1 could be said to have committed in the present case. Shri S. A. Deshmukh, the learned Advocate appearing on behalf of the Appellants-accused submitted that having regard to the nature of injuries and the medical evidence in this regard and having regard to the substantive evidence of these two eye witnesses, it cannot be said that the accused No. 1 had any intention to commit the murder of deceased Bhau. In addition to this, it is submitted by the learned Counsel that the prosecution has failed to adduce any evidence to suggest any motive or enmity between the deceased and accused. No. 1. He, therefore, submitted that at any rate the accused No. 1 cannot be convicted for an offence under Section 302 of the Penal Code. We find much substance in this contention firstly because only injury was found on the person of-deceased causing fracture of right temporal region. It is no doubt that this injury was on the vital part of the body and the evidence on record shows that there was a scuffle between the accused No. 1 and deceased and when this scuffle was going on the electricity went off and accused No. 1 hit the deceased by a stone. It is not the case of the eye-witnesses that accused No. 1 was holding the deceased and thereafter hit the deceased with stone. It is also not the case of these two eye-witnesses that accused No. 1 made the deceased to fall down on the ground and thereafter hit him with the stone. From the evidence on record therefore, it is clear 302 that accused No. 1 might have hurled the stone at the deceased which hit him on the vital part of the body but he had no intention to cause death or to cause such bodily injury as is likely to cause death. In our opinion, the offence fairly and squarely falls under Section 304, Part II and not under Section 302 of the Penal Code.
10. Coming to the conviction of both the appellants under Section 201 of the Penal Code Shri Deshmukh urged that there is no iota of evidence to show that the accused No. 2 had the knowledge that accused No. 1 or anybody else had committed the murder of deceased Bhau. He submitted that along with several other persons in the village he attended the burial and therefore, he had no intention whatsoever to cause disappearance of evidence to screen the offender from the legal punishment. He therefore, urged that so far as the conviction under Section 201 read with Section 34 of the Penal Code against accused No. 2 is concerned, it is wholly unsustainable. We find much substance in this submission of Shri Deshmukh so far as the accused No. 2 is concerned. The prosecution in our opinion has failed to establish that accused No. 2 had any knowledge about the offence of murder having been committed by the accused No. 1 and accused No. 2 had intention to cause disappearance of evidence to screen the offender from legal punishment. It is also material to note that Sitabai, P.W.5, sister of the deceased also attended the burial and at that time she never told accused No. 2 that accused No. 1 had committed the murder of her brother deceased Bhau. In fact until 19th Apr. 1979, no offence was registered and no investigation had commenced till then. In the absence of such positive evidence against appellant-accused No. 2, he cannot be convicted for an offence under Section 201 read with Section 34 of the Indian Penal Code. So far as the conviction of accused No. 1 under Section 201 read with Section 34 of the Penal Code is concerned, we do not think that any interference is called for. For this offence, the accused No. 1 has already undergone the sentence of 3 years awarded by the Trial Court. The result of the above discussion is that the conviction of accused No. 1 Kushaba s/o Budhaji Bangar for an offence punishable under Section 302 of the Penal Code is quashed and set aside, and instead accused No. 1 is convicted for an offence punishable under Section 304, Part II of the Penal Code. Conviction of accused No. 1 Kushaba s/o Budhaji Bangar under Section 201 read with Section 34 of the Penal Code is maintained. The conviction of accused No. 2 Desharath s/o Maroti Wadmare for an offence under Section 201 read with Section 34 of the Penal Code is quashed and set aside and he is acquitted of the said charge.
11. Coming to the question of sentence Shri Deshmukh urged that the accused No. 1 has been in jail for more then four years and therefore, the period of imprisonment already undergone would meet the ends of justice. Having regard to the facts and circumstances of this case, we feel that the sentence which accused No. 1 has already undergone would meet the ends of justice. The accused No. 1 is accordingly sentenced for the offence punishable under Section 304, Part II of the Penal Code to the period which he had already undergone. The Accused No. 1 is, therefore, directed to be released forthwith, if not required in any other case. Bail bond of accused No. 2 shall stand cancelled. The appeal is partly allowed.