This appeal arises out of the following facts:
On 9th May, 2004, the marriage of the daughter of one Bhausaheb,
the brother of Ashok PW.1, was to be solemnized in village Janephal,
District Aurangabad. Ashok PW.1, arranged a water tanker on the 6th May,
2004. As the tanker was being taken towards Ashok's house the accused
appellants, obstructed the way by putting stones and thorny bushes. The
accused also abused PW.12 Dada Saheb and the deceased Nana Saheb. Ashok reached the village at about 9.30 a.m. and was told by the deceased
not to take the tanker to his well, as planned as, the appellants had
obstructed the passage in that direction. The tanker was accordingly
brought to its destination by some other route by Nana Saheb. Nana Saheb
and Ashok, thereafter, went to police station Shioor for lodging a
complaint with respect to the behaviour of the appellants and while they
were returning from the police station they were waylaid by the appellants,
Nivrutti armed
with an iron rod and all the others with sticks. They also attacked Nanasaheb with their weapons on which he became unconscious and fell
to the ground. He was, thereafter, removed to the hospital by some of the
witnesses and an FIR was lodged at Police Station Shioor. On the
completion of the investigation the appellants were brought to trial for
offences punishable under Section 302 and 323 read with Section 34 of the
IPC and were sentenced to undergo life imprisonment for the main offence
and for three months for the offence udner Section 323/34 of the IPC.
This judgment has been confirmed by the High court in appeal.
This appeal by way of special leave is before us today.
The learned counsel for the appellants has raised only one
argument during the course of hearing. He has submitted that from the
evidence on record it was clear that a case under Sec.302/34 IPC was not
spelt out as there was no intention whatsoever to murder Nana Saheb, as
the intention was only to cause him hurt as he was a busy body and
creating difficulties for all and sundry. He has submitted that as per
the Doctor's evidence all seven injuries were prima facie simple in nature on non-vital parts of the body and it was only injury No.6 to the lung
detected during the post mortem examination which was the
cause of the death. He has also submitted that from a reading of the
occular evidence it was apparent that no intention to cause death was
made out and that the only purpose of the appellant was to teach the
deceased a lesson for the purpose of correcting his behaviour. The
learned counsel has also relied upon (1973) 3 SCC 466 (Ram Lal vs. Delhi
Admn.) and (2002) 7 SCC 33 (Bhima @ Bhimrao Sida Kamble and Others
vs. State of Maharashtra) in support of his case.
The learned counsel for the respondent-State has, however,
submitted that the evidence of five eye witnesses had uniformly made out a case of murder and as the appellants had tried to restrain and obstruct
the removal of Nanasaheb to the hospital or to the police station to lodge
a report after he had been injured, the intention on the part of the accused
was writ large. He has also submitted that the animosity between the
parties stood proved from the criminal and other litigation that had ensued
between them and which was the motive for the incident that happened on
the crucial day. He has also submitted that the nature of the injury was a
sine qua non for determining the nature of offence and the intention on
the part of the accused was a secondary consideration. The learned
counsel has relied on Virsa Singh vs. State of Punjab 1958 SCR 1495 for
this assertion.
We have heard learned counsel for the parties and gone through the record. We find from the evidence that the appellant Nivrutti alone
was armed with an iron rod and the others were armed with sticks. We
have also gone through the post- mortem report and observe the following
injuries on the dead body:
“1.Contused abrasion over right lateral aspect of neck inferior to
right angle of Mandible, size ½ cm, ½ cm blackish discolouration,
contused abrasion over left side of chin of the size ½ cm. Floor was
brownish, scap present.
2 Imprint type of contusion over right thigh anteriorly, two in
number, blackish discolouration, size 10 x 2-1/2 cm. Each.
2 Type of contusion over left leg, posterior laterally, three in
number, size 55 x 2-1/2cms., 8 x 2-1/2 cm., 11x2/1/2cm. Respectively
blackish discolouration:
4 Contusion over left knee, size 12x4 ½ cm. With blackish
discolouration:
4 Imprint type of contusion over left thigh, size 6 x 2-1/2 cm.
6 Imprint type of contusion over right scapular region of back,
blackish size 7x1-1/2 cm.
7 Imprint tyupe of contusion over black, obligque with blackish
discolouration, size 23 cm x 2-01/2 cm.
7 Imprint type of contusion over left scapular region extending to
left arm, blackish discolouration, size 17 x 2-1/2 cms.”
Doctor Salunke PW.8, in his deposition stated that injuries Nos.1-5 were
simple and 6-8 would also be simple in normal circumstances, but injury
No.6 which was on the Scapular region, had apparently caused an internal
injury on the lung which was the cause of death. He clarified that except
the internal injury below injury No.6 which was the cause of death, all the
injuries were simple and on non-vital parts of the body. It is also significant that there is no evidence on record to indicate as to who was
the author of this injury as omnibus allegations have been made against
all the appellants.
Some argument was raised by the learned counsel for the
respondent State that the intention on the part of the appellants was
something much more than a mere intention to cause hurt as (after the
injuries had been caused), they had obstructed the removal of the injured
to the hospital and the evidence of Ashok and other PWs was clear and
explicit on this aspect. We find this assertion to be of no merit. We see
from a reading of the judgment of the High Court that the story with regard
to the alleged restraint and obstruction has been disbelieved, as this
story had not been given in the police statements and was a glaring
improvement during the trial.
The learned counsel for the respondent has, however, brought to
our notice the evidence of PW.2 Zumberbai and PW.3 Rajender Kashinath
Jaagdale and submittd that these two witnesses had categorically and at
every stage and without any contradiction supported the story with regard
to the obstruction. We have gone through the evidence of these two
witnesses very carefully with the help of learned counsel and find that
these two witnesses also had not made any mention with regard to this
matter in their statements under Sec.161 of the Cr.P.C. and the evidence in
Court on this aspect was also (as in the case of the other witnesses
mentioned by the High Court), a glaring improvement. The evidence of
PW.2 and PW.3 also, therefore, does not advance the case of the
prosecution.
We have also gone through the judgment cited by the learned counsel. In Ram Lal vs. Delhi Admn. (Supra) a Bench of this Court laid
down the broad principle that where several accused armed with non-
lethal weapons with the common intention of causing grievous hurt
caused the death of an individual, the matter would fall within Sec.325 of
the IPC and not under Sec.302. In Bhima @ Bhimrao Sida's case (supra)
this is what this Court had to say in para 9:
“When a large number of persons were armed only with sticks or
pelted stones which they could find anywhere either near the
fields on or their way and it was not established as to who
specifically attacked whom, it is not clear as to whether the
intention was to cause death. It is more probable that the
intention was to give a hard beating only. Even if we accept the
case that the deceased Vithal was pursued right up to the wada,
the object of the mob was to teach him a stern lesson who is
said to be a bully in the village. In the circumstances and in the
light of evidence, we must hold that the reasonable inference to
be drawn is that the common object was to commit offences
under Section 323 and Section 325 read with Sections 147/149
IPC and not under Section 302 read with Section 149 IPC. The
trial Court as well as the High Court appear to have lost sight of
crucial aspects.”
We find that the facts of the case before us today are largely akin
to the facts in Bhima's case. In fact the present case is somewhat on a
better footing as the evidence in the cited case was that after causing the
initial injuries on the person of the deceased, the accused had pursued
the deceased right up to the Wada. We also find that in both the afore
cited cases some of the injuries had been caused on vital parts of the body
such as the head. In the present matter we observe that there is no injury
on any vital part of the body, there is no evidence as to who had caused
injury No.6 and that the story with regard to the obstruction put in the way of Nanasaheb's removal from the site is not borne out by the prosecution
evidence and in any case has been disbelieved even by the High Court.
We,
however, feel that as one of the appellants Nivrutti, had been armed with
an iron rod, the present matter would fall within the ambit of Section
326/34 of the IPC. We have also considered the judgment cited by the
learned counsel for the respondent i.e. Virsa Singh's case (supra) where
the question posed was as to whether one injury inflicted in the abdomen
would make the matter fall within Sec.302 or 304 Part-I. It is in this
connection that the observation was made that the nature of the injury
alone should be looked at and not the intention. In any case Virsa Singh's
judgment has been reconsidered and explained in several other judgments and the effect thereof has been watered down substantially.
We, accordingly, partly allow this appeal, set aside the conviction
IPC and reduce the sentence to 5 years R.I.; the default clause and the
conviction under Section 323/34 of the IPC to remain as it is.
(J.M. PANCHAL) New Delhi, July 29, 2009.