Full Judgment Text
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CASE NO.:
Appeal (crl.) 663 of 1998
PETITIONER:
Daulat Trimbak Shewale & Ors.
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 29/04/2004
BENCH:
N.Santosh Hegde & B.P.Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
The appellants herein were tried for offences punishable
under Sections 302, 325 and 324 read with Section 34 IPC for
having committed the murder of one Keshav and having caused
injury to his brother Baburao (PW-1). The trial court found the
appellants guilty of offence punishable under Section 302 read with
34 IPC and sentenced them to undergo imprisonment for life. It
convicted Appellant Nos.2 and 4 also for an offence punishable
under Section 324 read with 34 IPC for which three months simple
imprisonment was awarded.
The appellants herein unsuccessfully challenged the said
conviction and sentence before the High Court of Bombay, Nagpur
Bench, Nagpur, consequently they are before us in this appeal.
Brief facts necessary for the disposal of this appeal are as
follows:
The appellants and the deceased and his family owned
neighbouring lands in the Village Koyali, Tehsil Risod in Akola
District of Maharashtra. There was some dispute in regard to the
boundary between these two properties because of which the
appellants had filed a civil suit and had obtained an injunction
against the deceased and his family from sowing the disputed area
of the land. But before the injunction could be obtained the
deceased and his family had already sown Moong crop in the
disputed area sometime in July of 1992. It is the case of the
prosecution that Moong crop sown by the deceased and his family
was ready for harvesting sometime in September, hence,
anticipating the harvesting of the crop by the deceased and his
family the appellants had sought for police help to prevent the
same, but such help was not given by the police. Therefore, it is
stated that on 4.9.1992 at about 10 a.m. when deceased and his
brother were harvesting the crop, the appellants came to the field
armed with deadly weapons and assaulted the deceased and his
brothers, consequent to which deceased Keshav died and his
brothers Baburao and Bahurao suffered injuries. A complaint in
this regard was lodged by PW-1 in Shirpur Police Station and on
the basis of the said complaint a case was registered against the
appellants, as stated above. In the meanwhile the appellants herein
also approached the same police station and lodged a complaint
that they were assaulted by the party of the deceased. Said
complaint was also accepted and a separate case was registered
against the deceased and his brothers.
In the case filed by the brother of the deceased, the police
after investigation filed a charge-sheet for offences, as stated above
and the trial court convicted the appellants which conviction was
confirmed by the High Court. Since we are not concerned with the
complaint filed by the appellants in this appeal and since there is
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no material in regard to the fate of that complaint on record it is not
necessary for us to deal with the facts pertaining to that complaint
except to the extent the same is taken as a defence by the
appellants in this case.
Shri M.R.Daga, learned counsel appearing for the appellants
contended that by virtue of the injunction granted by the civil court
the appellant were in possession of the land in question and it is the
complainants side which tried to interfere with their possession and
in the course of protecting the possession of the property the
deceased and others including the appellants suffered injuries.
Therefore, the offence if at all committed by the appellants would
come under Explanation 4 to Section 300, hence, they cannot be
held guilty of any of the charges framed against them. This
argument of the learned counsel proceeds on the assumption that
the appellants had proved before the courts below that they were in
possession of the disputed property. On the contrary the finding of
the two courts below is that the appellants were not in possession
of the property and by virtue of the injunction obtained by the
appellants they did not get the possession of the suit property. The
trial court noticed in the averments made in the application filed
for the grant of injunction before the civil court by the appellants
wherein the appellant had admitted that the deceased and his
brothers had already sown Moong crop on the land in question.
Therefore, the trial court came to the conclusion that the crop that
was ready for harvesting was the crop sown by the deceased and
his party hence, the appellants contention that they were in
possession of the property was incorrect. The High Court has
agreed with the said finding of the trial court and we find no reason
whatsoever to differ from the said finding more so in the
background of the fact that the appellants themselves had admitted
in the injunction application that the deceased and his party had
already sown the Moong crop. Therefore, the argument of the
learned counsel that the appellants were only defending their
rightful possession of the property has to fail.
Learned counsel then contended that assuming that the
appellants did assault Keshav there is no material to show that the
accused persons had any intention to cause death of the deceased
and there being no charge under Section 149 IPC, the courts below
erred in convicting the appellants with the aid of Section 34 IPC,
more so because of the fact that the prosecution has failed to
establish who actually caused the fatal injury. He also submitted
that there is absolutely no material to show that all the nine
accused appellants before us shared the intention of any one of
those who caused the fatal injuries, hence they are entitled for
acquittal. We do not agree with the learned counsel that the trial
court was not justified in relying upon Section 34 to convict the
accused persons because on the material available on record it
could be seen that there was a dispute between the parties and on
the fateful day the deceased and his brothers were harvesting the
crop and the appellants having failed to obtain police assistance
came armed and assaulted the deceased and his brothers, during
which assault the deceased died and some persons on the
assailant’s side and some persons on the deceased’s side suffered
injuries. The factum of the appellants coming armed with deadly
weapons to the field where the deceased and his party were
harvesting the crop itself shows that the appellants did share the
common intention.
From the above facts, the two courts below have come to the
conclusion that the common intention of the appellants was to
cause the death of the deceased. This finding is given by the courts
below because of the number of injuries found on the body of the
deceased and the nature of weapons used in the assault.
We are in agreement with the finding of the courts below
that the appellants did share a common intention. But question for
our consideration is : what was the common intention ? Is it to
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murder the deceased as held by the two courts below or was it to
merely assault in an attempt to take possession of the disputed
land. An over all consideration of the material on record like the
motive, nature of injuries caused, and the fact that there were also
injuries on the accused indicates that there was a fight between the
two groups of people during which fight the deceased suffered the
injuries. It is difficult to come to the conclusion that the appellants
went and assaulted the deceased with the intention to kill him. If
that was the intention there would have been many more injuries
on other vital parts of the body, as also the fact that no attempt was
made to kill the other two brothers of the deceased even though
they were out numbered. The fact that the appellants had sought
police help also indicates that they did not intend to take the law
into their own hands in the first instance. Further the fact that
though many of the appellants carried axes the doctor who
conducted the post mortem found only one incised wound on the
forehead. This also indicates that the accused persons did not really
intend to kill the deceased. At the same time, it is to be noted that
the prosecution has not been able to identify who really caused
Injury No.12 which caused the death of the deceased. In such
circumstances, we think it is not safe to infer that the appellants
shared a common intention of causing the death of the deceased,
but it would be more appropriate to hold the appellants guilty of
causing grievous hurt an offence which is punishable under
Section 326 IPC.
For the reasons stated above, while partly allowing the
appeal we modify the conviction recorded by the two courts below
to one punishable under Section 326 read with 34 IPC and direct
the appellants to undergo RI for a period of 7 years. We maintain
the conviction imposed on appellants No. 2 and 4 awarded by the
courts below under Section 324 read with Section 34 IPC but
direct the said sentence to run concurrently.
If the appellants have served any part of the sentence, set off
shall be given for the same. We are informed that the appellants
are on bail, their bail bonds are cancelled and they shall surrender
and serve out the sentence, as stated above.