1 cri.appeal-330-18.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 330 OF 2018

1. Yuvraj Kerba Gurav

2. Kerba Dadu Gurav ..Appellants

Versus

The State of Maharashtra ..Respondents

__________

Mr. Amit Mane, Advocate (appointed through High Court Legal

Services Authority), for the Appellants.
Ms. Geeta Mulekar, A.P.P. for the State/Respondent.
__________

CORAM : SMT. SADHANA S. JADHAV &

SARANG V. KOTWAL, JJ.

RESERVED ON : 17th SEPTEMBER 2021

PRONOUNCED ON: 30th SEPTEMBER 2021

JUDGMENT: (Per Sarang V. Kotwal, J. )

1. The Appellants have challenged the Judgment and order

dated 28/11/2017 passed by the learned Additional Sessions

Judge, Kolhapur, in Sessions Case No.03 of 2017. By the impugned

VINOD
Digitally
signed by
VINOD
BHASKAR
Judgment and order the appellants were sentenced to suffer
BHASKAR GOKHALE
GOKHALE Date:
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16:16:43
+0530
Gokhale
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imprisonment for life and to pay a fine of Rs.20000/- each and in

default to suffer S.I. for one year. The appellants were given set off

for the period spent in jail as under trial prisoners.

2. Heard Shri. Amit Mane, learned counsel for the appellants

and Ms. Geeta Mulekar, learned APP for the State.

3. The prosecution case, in brief, is that, on 25/06/2016, at

about 4:30p.m. the appellants in furtherance of their common

intention committed assault on the deceased Mahadev Gurav with

sickle and committed his murder. In support of it’s case the

prosecution examined 11 witnesses.

. P.W.-1 Yashwant Gurav was father of the deceased and had

lodged the F.I.R.

. P.W.-2 Rajesh Rathod was a panch for spot panchanama. The

spot panchanama was produced on record at Exhibit 18. He was

also panch for seizure of clothes of the deceased and for seizure of

clothes of the Appellant No.2. The clothes of the Appellant No.2

were seized on 27/06/2016.

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. P.W.-3 Sunanda Gurav was mother of the deceased and was

an eye witness.

. P.W.-4 Yogita Sutar was another eye witness who was working

in a nearby field.

. P.W.-5 Latika Gurav was also an eye witness who was working

in a nearby field.

. P.W.-6 Anant Dongarkar was a panch in the inquest

panchanama.

. P.W.-7 Amol Gurav was a panch in whose presence the

Appellant No.1 showed willingness to show the place where he had

kept the murder weapon sickle and it was recovered at his instance.

Panchanamas are produced on record at Exhibit 32 and 33.

. P.W.-8 Sarjerao Zurale was A.S.I. attached to Gadhinglaj

police station, Kolhapur. He had recorded the statement of P.W.1

which was treated as an F.I.R.

. P.W.-9 Harish Patil, Police Naik, had carried out video shooting

and had issued certificate under section 65(b) of the Evidence Act

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in respect of panchanamas carried out during investigation.

. P.W.-10 Dr. Nikhil Jagtap had conducted postmortem on the

dead body. The postmortem report is produced on record at Exhibit

44/C.

. P.W.-11 Rajesh Rathod, A.P.I. was the investigating officer who

had completed the investigation and had filed the charge-sheet.

. P.W.-12 Ashok Powar was another I.O. who had sent the

muddemal for chemical analysis. The Chemical Analyzer’s reports

are produced on record at Exhibit 60. However, the sickle did not

show presence of blood. Some of the clothes show presence of

blood of ‘AB’ blood group. The C.A. report is produced on record at

Exhibit 60/c.

4. The statements of the eye witnesses Sunanda, Kavita, Geeta,

Latika, Yogita and Rajashree were recorded under section 164 of

Cr.p.c. However, out of them, only three eye witnesses were

examined.

5. The most important evidence in this case is that of deposition

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of the eye witnesses.

6. P.W.-3 Sunanda was mother of the deceased Mahadev. She has

stated that, appellants’ agricultural land was adjacent to their land.

The appellants used to supply water to this witness’s land. The

appellants had not supplied water and, therefore, there was some

dispute between the deceased Mahadev and the appellants four

days prior to the incident. On the day of incident, this witness

along with her son Mahadev and daughter-in-law had gone for

agricultural work. They had taken their two goats with them. They

worked there till 4:30p.m. At that time, her son told her that, he

was going home. He took grass on his head and took his two goats

with him. He started walking towards his house. In a short while,

this witness heard shouts from him. This witness and her daughter-

in-law rushed in that direction. They saw that the Appellant No.2

Kerba was holding Mahadev and Appellant No.1 was assaulting

him with sickle. This witness and her daughter-in-law rushed for

Mahadev’s help. In the meantime, Geeta, Lata, Yogita and Kavita

came there. All of them pushed the Appellants who ran away from

the spot. P.W.-3 asked her son why he was assaulted. At that time,
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he told her that, he questioned the appellants about non supply of

water. At that time, the appellants assaulted him. They were saying

that, he had taken his goats to their field which was also objected

to by the appellants. In the meantime, others gathered on the spot.

Husband of P.W.-3 was informed. He also came there. Then

Manadev was taken to Gargoti Hospital. He was shifted to CPR

Hospital. But while taking treatment, he succumbed to his injuries.

7. In the cross-examination of P.W.-3 she gave a story which was

contrary to her version in the examination in chief, as far as, roles

of the appellants are concerned. She stated in her cross-

examination that the appellant Kerba was holding hands of the

deceased from front side. He cut the fingers of her son and

assaulted on his shoulder, elbow and thigh. Then she stated that,

the appellant Kerba was holding both hands of the deceased and

that he was assaulting by one side of weapon. At about 7:00p.m.

the deceased expired in the hospital.

8. P.W.-4 Yogita is another eye witness. She has narrated that, at

the time of incident she heard noise and she rushed to the spot. She

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has stated that, the appellant Kerba had held deceased Mahadev

and the appellant Yuvraj was assaulting him with sickle. At that

time, Mahadev’s wife Rajeshree and P.W.-3 Sunanda had also

rushed to the spot. All of them pushed the accused and they ran

away from the spot. She narrated further that, P.W.-3 asked the

deceased about the incident which she had mentioned the same

facts as narrated by P.W.-3 in her deposition. In her cross-

examination, she admitted that, she had not seen the scuffle

between Mahadev and Yuvraj. She also admitted that, her

statement was recorded after 4 to 5 days from the incident. At that

time, Kavita, Lata, Geeta, wife of the deceased and parents of the

deceased were present there.

9. P.W.-5 Latika is one more eye witness. She has narrated the

incident as is narrated by P.W.-3 and P.W.-4. In her cross-

examination, she has stated that, when she rushed there, the

deceased was lying still. Her statement was recorded by the police

on the next date.

10. Apart from these main witnesses, the deposition of the

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Medical Officer, Dr. Nikhil Jagtap (P.W.-10) is important. He has

stated in his deposition and he has also noted in the postmortem

notes that the deceased had suffered following injuries:

1. Incised injury of 3 cm. x 1 cm. x muscle deep

obliquely present over superior aspect of right
shoulder.

2. spindle shape stab injury of size 4 cm x 2 cm x 5

cm bond deep oblique present over anterior aspect
of right shoulder region with both angle sharp and
tailling on upper end.

3. Chop injury of size 10 cm x 3 cm x bone deep

present horizontally over lateral aspect of right
shoulder region with loss of muscle and other soft
tissues. Lower edge of injury is undermined while
upper is sloping.

4. Chop injury of size 6 cm x 3 cm x bone deep

present vertically over anterior aspect of right
elbow region with loss of muscles and other soft
tissues along with injury to arteries, veins and
nerves around elbow joint.

5. Chop injury of size 5 cm x 3 cm x bone deep

present obliquely over medical aspect of right
forearm region with loss of muscles and other soft
tissues alongwith injury to arteries, veins and
nerves.

6. Chop injury of size 8 cm x 3 cm x bone deep

present over postero lateral aspect of left shoulder
region with loss of muscle and other soft tissues.
Lower edge of injury is undermined while upper is
sloping.

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7. Chop injury of size 10 cm x 4 cm x bone deep

present horizontally over posterior aspect of left
elbow region with fracture of lower end of
humerus bone and loss of muscle and other soft
tissues. Lower edge of injury is undermined while
upper is sloping.

8. Chop injury of size 7 cm x 3 cm, bone deep present

over left hand with complete amputation of
middle, ring and little fingers from knuckles with
loss of muscles and other soft tissues.

9. Spindle shaped stab injury of size 4 cm x 2 cm,

muscle deep obliquely present over right side of
back in thoracic region 16 cm below right shoulder
spine and 8 cm right lateral to midline of back.

10. Surgically stitched injury of length 12 cm obliquely

present over left thigh after removing stitches
incised injury of 11 cm x 3 cm, muscle deep
appreciated.

There are also three injuries which are noted

in para No.18 of the post mortem report, which
are as under:

1. Fracture of lower end of left humerus bone.

2. Amputated fractures of left middle, ring and little

fingers,

3. Linear fracture of upper part of shaft of right

humerus bone.

11. The other witnesses are not material witnesses, so far as, the

main incident of assault is concerned. P.W.-1 had given his

complaint based on the information given by the eye witness.

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12. Learned counsel for the appellants submitted that, there is

inconsistency between the versions of the eye witnesses. P.W.-3 in

her cross-examination has completely given a contrary version of

the incident and the role of the appellants is reversed in her cross-

examination. He submitted that, other two eye witnesses i.e. P.W.-4

and P.W.-5 are not natural witnesses. P.W.-4’s statement was

recorded after 4 to 5 days of the incident. P.W.-5’s statement is

recorded on the next day of the incident and, therefore, there was

scope for deliberation and for implicating the accused falsely. He

further submitted that, in any case, looking at the nature of the

injuries, it cannot be said that the appellants had requisite intention

under section 300 of the IPC. There was no preparation and

premeditation on the part of appellants.

13. Learned APP opposed this application and submitted that,

evidence of eye witnesses is cogent and consistent. All of them are

natural witnesses and they were working together around the same

time in the surrounding agricultural fields.

14. We have considered the submissions made before us and we

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have taken into account the depositions of the witnesses. We are

satisfied that the depositions of the eye witnesses are consistent

and they are natural eye witnesses. Though, P.W.-3 has given

different version in her cross-examination, but in the cross-

examination it is not clearly brought out that this witness had

changed her version completely. In her cross-examination also she

has narrated that the Appellant No.2 had held hands of the

deceased. She had also stated that the Appellant No.1 had

assaulted the deceased. Therefore, her vague admissions in the

cross-examination will not materially affect her examination in

chief. This witness was working in the agricultural field along with

her deceased son and daughter-in-law. There is no reason to

disbelieve her version. She has amply supported depositions of P.W.-

4 and 5. They had also immediately rushed to the spot and had

seen the incident. All of them have consistently stated that, P.W.-3

asked the deceased about genesis of the incident. At that time, he

had explained how the incident had occurred. Therefore, we are

satisfied that all these witnesses are reliable and consistent

witnesses.

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15. In this view of the matter, since we are satisfied that the

direct evidence is proved beyond reasonable doubt. Absence of

blood on the sickle which is recovered at the instance of appellant

No.1 will not make any difference to the facts of this case.

16. We have also examined whether the case will fall within the

meaning of definition of ‘murder’ under section 300 of IPC. In that

context, submission of learned counsel for the appellants has some

force. The reason why the incident had taken place was mentioned

by the deceased to his mother P.W.-3. There was a dispute over

supply of water four days prior to the incident. In that dispute the

deceased and his parents were the aggrieved parties. On the date of

incident the deceased had started to go home with his two goats.

On the way, he met the appellants. The deceased himself

questioned them about non supply of water and then the incident

had started. According to the prosecution case, as mentioned by the

deceased himself, the appellants also were annoyed because the

deceased had carried his two goats from the appellant’s agricultural

field. That would have caused damage to their crop; which was one

of the reasons why the quarrel had started. Significantly, appellants

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had not started the quarrel. They had not gone to the field of

deceased. It was the deceased who had questioned them and the

quarrel had started. Therefore, it can safely be concluded that,

there was no preparation and no premeditation on the part of

appellants. The weapon used was a normal agricultural implement

used by agriculturist in any agricultural field. Therefore, it cannot

be said that the appellants were armed with weapon with intention

to cause assault to the deceased.

17. In this context, the injuries suffered by the deceased are to be

seen. According to the prosecution case put forth through the

evidence of eye witnesses, the appellant No.2 had held hands of the

deceased and appellant No.1 had given blow with sickle. All the

injuries are on hands and legs. Only one injury was on the chest,but

that was muscle deep. It was not a serious injury. Very significantly,

all other injuries were on the limbs and though they had caused

fractures, the appellants had ample opportunity to give blows on

vital parts, but there is not a single blow on the head, abdomen,

chest or any other vital part of the body which could have caused

death of the deceased. From the nature of injuries, it appears that

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the intention was to cause grievous hurt, however, looking at the

number of injuries and also taking into account that some of the

injuries had caused fracture, the knowledge can be attributed to

both the appellants that because of this assault the deceased could

have died. Therefore, in our view, the offence would fall within

Exception IV to section 300 of IPC. But the knowledge of causing

such injuries which would result in death, in ordinary course of

nature, can be attributed to the appellants. Therefore, though the

offence of murder is not made out, the prosecution has proved

commission of offence U/s.304(II) of IPC. Taking over all view of

the matter and also taking into account the fact that the quarrel

had started by the deceased, that factor can be taken into account

for awarding sentence under section 304(II) of the IPC.

18. Hence, the following order :

ORDER
(i) The Appeal is partly allowed.
(ii) The conviction and sentence awarded under
section 302 of the IPC is set aside.
(iii) Instead, the Appellants are convicted for the
offence punishable under section 304(II) of the
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IPC and are sentenced to suffer R.I. for 7 years

and to pay a fine of Rs.20,000/- each and in
default to suffer S.I. for one year.
(iv) The Appellants are given set off for the period
undergone by them as under trial prisoners.
(v) Mr. Amit Mane was appointed by this Court.
Therefore, he be paid his fees as per rules

(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)

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