The broad facts for the disposal of the present
appeal are as under:-
19 persons in all including A1 – Changdeo
Nivruti Kamathe, the appellant herein were brought to
trial for offences under Sections 302, 326, 324, 353,
332, 387 read with Section 149/148 IPC for having
caused the death of Kalo Ram and injuries to several of
the witnesses, on the 12th of April, 1985 during the
course of a fair and a religious procession in the
village of which both the parties were residents. The
Sessions Judge, Pune, vide his judgment dated
16.05.1986 acquitted all the accused holding inter alia
that the witnesses were interested parties and that
they had deposed against the accused persons on account
of enmity and that the prosecution version was not
supported by the medical evidence or the evidence of
the police officer who had investigated the matter.
The matter was thereafter taken in appeal before
the Bombay High Court, which, by its order dated 23rd
July, 2002, partly allowed the appeal and convicted the
appellant under Section 302 of the Indian Penal Code
simplicitor and sentenced him to undergo life
imprisonment and to the payment of a fine with a
default clause and convicted two of the other accused
Vishnu Nivruti Kamathe, Shankar Mugut Kamathe and
Bhanudas @ Bhalchandra Gulab Kamathe under Section 323
IPC and also sentenced them to undergo a term of
imprisonment.
Two appeals have been filed by Changdeo Nivrutti
Kamathe alone who has been convicted for the offence of
murder and the other that is S.L.P. (Crl.) No. 5513 of
2003 has been filed by the other accused. We grant
leave in this matter as well.
Mr. R. Sundaravardhan, the learned senior
counsel for the appellant in Criminal Appeal No. 17 of
2003 has raised several arguments during the course of
the hearing. He has pointed out that it was well
settled that the High Court in dealing with an appeal
against acquittal should not ordinarily interfere with
the judgment of the trial court unless that judgment
could be said to be perverse and as this cardinal
principle had been discarded by the High Court,
interference by this Court was called for to rectify
what was an apparent mistake. He has also submitted
that the observations of the High Court on the
statements of the witnesses (that the trial court found
were not worthy of belief as they were relatives of the
complainant party) were also erroneous as the medical
evidence did not support the ocular testimony.
Mr. Ravindra K. Adsure the learned counsel for
the State of Maharashtra has, however, supported the
judgment of the High Court and submitted that as the
judgment of the Sessions Judge was erroneous to the
point of perversity, interference by the High Court
was justified.
We have considered the arguments advanced by the
learned counsel for the parties.
In the light of the fact that all P.Ws. some of
them injured, have specifically named the appellant
herein i.e Changdeo Nivruti Kamathe as the primary
mover of the crime and has attributed the fatal injury
on the person of Kaluram deceased to him, we are of the
opinion that his presence appears to be proved on the
record. It has come in the evidence of the witnesses
that Kaluram had fallen on the ground and as his son
attempted to save him a gupti which had been concealed
by the appellant was used to cause an injury on the
person of Kaluram and one injury on the back of
Sudhakar (PW 6). The presence of the injury on the
deceased is evident from the medical evidence.
Mr. Sundaravardhan has then fallen back
alternatively on the argument that Section 302 was not
made out as only one injury had been found as per the
medical evidence and that too during a fracas involving
a large number of persons on both sides the matter
would fall under Section 304 Part I or 304 Part II IPC.
We have considered this argument and find that
it has merit.
We see from the evidence of P.W. 9 Dr. Sheikh
who had performed the post mortem on the dead body and
had noted one injury 2.5cm X ½cm X 11cm at 2 cms left
lateral to the first thoracic spine on the shoulder.
On an examination of the said injury he found that it
had penetrated into the aorta. We also see that the
incident happened during the course of a heated
argument between a large number of persons present on
both sides. It is also clear from the evidence of
P.Ws. 7 and 8, police constables who were on bandobast
duty during the procession, that a crowd of 400 to 500
representing rival groups had collected at the place
and stone pelting by rival groups and fiery speeches
had been made as a prelude to the incident which
happened despite the efforts of those present to
pacify both sides. We also see that the incident
happened in the year 1985 and that the trial court by
its judgment dated 16.05.1986 had acquitted all the
accused.
In view of the above stated facts, we feel that
the ends of justice would be met if the offence is
converted into one 304 Part-I and the sentence is
reduced to five years rigorous imprisonment.
With this above modification, the above appeal
is dismissed.
SLP(Crl.) No. 5513/2002
For the reasons recorded in Criminal Appeal No.
17 of 2003, the special leave petition stands
dismissed.
[R.M. LODHA]