Criminal Appeal No.816 of 2004

9th August, 2006

Petitioner Counsel: Shri. S. S. CHOUDHARI,Shri. S. S. THOMBRE
Respondent Counsel: Shri. S. P. DAUND

Cases Cited:
Ganesh K. Gulve Vs. State of Maharashtra, 2002 ALL MR (Cri) 2263 (S.C.)=AIR 2002 SC 3068 [Para 7]
Binay Kumar Singh Vs. State of Bihar, AIR 1997 SC 322 [Para 15]
Parsuram Pandey Vs. State of Bihar, 2005 ALL MR (Cri) 796 (S.C.)=AIR 2004 SC 5068 [Para 18]
Lehana Vs. State of Haryana, (2002)3 SCC 76 [Para 22]

JUDGMENT

JUDGMENT :- The appellants have impugned order of conviction and sentence passed on them by I Ad hoc Additional Sessions Judge, Ambajogai on 30-11-2004, convicting them for the offence punishable under Sections 307, 326, 504, 506 (Part-II) r/w Section 34 of the Indian Penal Code. The appellants are sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.1,000/- each, to suffer simple imprisonment for six months for the offence punishable under Section 307 r/w 34 of the Indian Penal Code. They are sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.750/- for the offence punishable under Section 326 r/w 34; rigorous imprisonment for one year and fine of Rs.500/- each for the offence punishable under Section 504 r/w 34; and rigorous imprisonment for three years and fine of Rs.500/- for the offence punishable under Section 506 (Part-II) r/w 34 of the Indian Penal Code.

2. Briefly stated the prosecution case is that : Sahebrao Khanderao Jadhav has four sons, namely, Khanderao (father of first informant); Baburao (PW-9); Rajabhau (PW-8) and Subhash (PW-7). The family owns 8 acrees of land from Survey No.343, known as Madarpatti, situated at Ambajogai, consisting of two strips, one of 5 acres and 6 gunthas and the other 3 acres. Both the strips are situated at different places. The brothers are living separately but have not partitioned the estate. They jointly cultivate the field but take the income from the field by rotation. At the time of incident, it was the turn of Rajabhau to take income from the piece of 3 acres of land, where the incident took place. The accused are related to Sahebrao Jadhav. The appellants, Babasaheb (PW-5) and the first informant are relatives. Field of appellants adjoint this strip of three acres on the west. Another field of the appellants adjoin the strip of land admeasuring 5 acres and 6 gunthas. Appellants committed an encroachment to the extent of 13 gunthas over the strip of 5 acres of land belonging to Sahebrao. Thus, Baburao (PW-9) filed a civil suit against the appellants in the year 1989. After about 7 to 8 years, the suit was decided in favour of Baburao. The appellants preferred an appeal against this decision in or about the year 1989. The appeal came to be dismissed in default. It was, however, subsequently restored to the file on payment of costs of Rs.750/-. The matter is still subjudice. On account of this dispute, there was enmity between the two families.

3. On 20th March, 2002, Jaiprakash requested his maternal uncle, Babasaheb Vitthal Gaikwad (PW-5) for helping him to plough the land by his tractor. Balasaheb, therefore, brought his tractor to the strip of 3 acres at about 6.00 p.m. and started ploughing the land with the help of Bharat Gaikwad. While ploughing was in progress, at about 10.00 p.m., all the appellants entered the field, standing in front of the tractor. Appellant no.3 Pandurang abused Jaiprakash as he was ploughing the land and threatened to kill him. Thereupon all the appellants rushed at the first informant. Appellant no.1 inflicted sickle blow on his left leg below the knee. On receiving the blow, first informant sat down. Thereafter appellant no.1 inflicted another sickle blow on his head, causing bleeding injury. On account of the assault, first informant raised cries for help. During this period, Baburao, Rajabhau and Subhash, uncles of first informant, were resting near their cattle shed at the distance of about 150 feet from the scene of occurrence. In response to the cries, Baburao first rushed to the help of his nephew. Rajabhau and Subash followed him. When Baburao reached the scene of occurrence, and tried to intervene, appellant no.2 inflicted blow with Katti on his right leg below the knee. Appellant no.1 inflicted sickle blow on his head, accused no.2 again inflicted another blow on the right led below the knee of Baburao with Katti, as a result, Baburao also fell down and was shouting for help. By that time, Rajabhau and Subhash also arrived at the scene of occurrence. On their arrival, appellant no.2 inflicted blow on the right leg below knee of Rajabhau with Katti. Appellant no.1 inflicted blow on the right arm of Rajabhau with sickle; appellant no.4 dealt stick blow on the head of Subhash. Appellant no.2 inflicted blow on the left hand of Subhash with Katti. Appellant no.1 dealt two sickle blows on his head, one of them fell on the left ear. During the assault on Rajabhau and Subhash, appellant no.3 and 4 were instigating appellant nos.1 and 2 to kill the victims. On hearing hue and cry, neighbouring cultivators Shivaji Salve and Kailas Jadhav came to the rescue of the victims. Babasaheb and Bharat, who were watching the assault from the tractor, also stepped down. Having seen this, appellants ran away.

After departure of appellants, Babasaheb went to the village and informed Sahebrao that the victims are lying in the field in injured condition. Therefore, Sahebrao went to Ambajogai police station for giving intimation. PSI - Kuntakure, who was performing patrolling duty, was informed about the occurrence by the Station House Officer. In response, Investigating Officer came to the police station and proceeded to the scene of occurrence with Sahebrao. On reaching the scene of occurrence, the Investigating Officer put all the injured in a police vehicle and 'took them to S.R.T.R. Hospital, Ambajogai. Dr. Suryawanshi (PW-11), who was on duty, examined the patients and started their treatment. Subhash was seriously injured. He was, therefore, advised to be taken to well-equipped hospital for better treatment. Subhash was, therefore, shifted to the hospital of Dr. Sham Agroya (PW-10) for treatment and was discharged after about 26 days. While the treatment of the injured was in progress at S.R.T.R. Hospital, Ambajogai, Investigating Officer recorded statement of Jaiprakash (Exh.30), who was certified to be well oriented and conscious by the Medical Officer. On the basis of this statement, Investigating Officer registered the offence against the appellants for the offences punishable under Sections 307, 326, 325, 324, 504, 506 r/w 34 of the Indian Penal Code and took over the investigation. He then visited the scene of occurrence on 21st and prepared a Panchanama (Exhibit-23). Samples of bloodstained soil and adjacent soil were collected in a polythene bag, which was sealed in presence of witness Kalyan Gaikwad (PW-1) and were attached under panchanama of the scene of occurrence (Exh.23). Clothes of the injured were attached at the hospital under Seizure Memos (Exhibits 34 to 37) in presence of PW-6 Shankar Jadhav. The Investigating Officer then arrested appellant nos.1 to 3. Appellant no.4 came to be arrested on 23rd March, 2002. On 24th March, 2002, appellant nos.1 and 2 made confessional statements in presence of witnesses and produced sickle and Katti concealed in the cement tank placed in front of the cattle shed. The weapons were attached under Seizure Memos (Exhibits-26 and 28). Bloodstained clothes of the appellants came to be attached at the police station in presence of PW-6 Shankar Jadhav, under Seizure Memos (Exhibits-38 to 41). The articles attached during the course of investigation were sent to Chemical Analyzer for analysis. After completion of the investigation, Investigating Officer filed charge-sheet against the appellants.

4. At the commencement of the trial, the appellants pleaded not guilty and adopted defence of total denial. According to them, there was mutual fight between the group of Jaiprakash, Balasaheb and Subhash and the group of Rajabhau and Baburao over the cultivation of the filed, during which, they sustained injuries. The matter then was settled by Sahebrao. However, taking advantage of the fact that they had sustained injuries, the appellants came to be falsely implicated. The appellants have examined DW-1 - Mrs. Kacchi Bilquish Rafiq, Special Executive Magistrate, who recorded dying declaration of the victims at the hospital.

After completion of the trial, learned Trial Judge found that the evidence of the injuries and Balasaheb (PW-5) inspires confidence and establish that the appellants harboured common intention to commit murder of the victims and in furtherance of this common intention, assaulted the victims by lethal weapons. In this view of the matter, learned Trial Judge convicted the appellants and sentenced them as stated earlier.

5. Shri. S. S. Choudhari, learned Counsel for appellant nos.1 to 3 argued the matter at length. According to learned Counsel, all the witnesses are related to each other. Their evidence is not corroborated by independent witnesses. Evidence of interested witnesses is full of contradictions and omissions and is also not corroborated by the medical evidence. The evidence of victims is contradicted by the statements (dying declarations) recorded by Special Executive Magistrate (DW-1) Mrs. Kacchi Bilquish Rafiq. The evidence on record does not establish that the appellants shared common intention to commit murder of the victims. At the most, the offence falls under Section 324 of the Indian Penal Code. Learned Counsel further submitted that the intimation given by Sahebrao should have been treated as F.I.R. In any event, delay in lodging the F.I.R. has not been properly explained by the prosecution. On the basis of these contentions, learned Counsel contended that the appellants were wrongly convicted by the Trial Judge, therefore, the appeal deserves to be allowed.

6. Shri. Thombre, learned Counsel appearing for appellant no.4 has also argued the matter at length. Learned Counsel has adopted the arguments advanced on behalf of appellant nos.1 to 3. He further submitted that appellant no.4 - Suresh is physically disabled and could not have participated in the assault. Learned trial judge has committed an error in ignoring this fact while coming to the conclusion that appellant no.4 also participated in the commission of offence. Therefore, conviction of appellant no.4, deserves to be set aside by allowing the appeal so far as appellant no.4 is concerned.

7. Learned Counsel for the appellants have laid emphasis on the fact that the evidence of the victims suffers from the vice of contradictions and omissions, therefore, no reliance should have been placed on their evidence. It would, therefore, be appropriate to examine the evidence of the victims. Before referring to the evidence, it will have to be borne in mind that there is no dispute about the enmity and protected litigation between the parties. The principles of appreciation of evidence are now well settled. Evidence of witnesses is to be appreciated with due care and caution. Discrepancies in the matter of details always occur even in the evidence of truthful witnesses. The faculties of different individuals in the matter of observation, perception, memorization, recall and recounting past events, differ from individual to individual. Thus, the evidence of witnesses cannot be discarded on this ground alone if there is consensus as to the substratum. The Apex Court had an occasion to deal with this aspect in the matter of Ganesh K. Gulve etc. Vs. State of Maharashtra, reported in AIR 2002 SC 3068 : [2002 ALL MR (Cri) 2263 (S.C.)]. Referring to the principles of appreciation of evidence. Their Lordships observed in para 14 of the report that : "In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct state of affairs. It is for the courts to separate the grain from the chaff."

8. The prosecution has examined all the injured. All of them have referred to the dispute between them and the appellants in respect of dispute regarding encroachment over their field. Jaiprakash is the first informant. When the appellant attacked him, Jaiprakash raised alarm. In response his uncles who were resting near the cattle shed came to his rescue. Their arrival diverted the assailants. He was therefore, spared. Though he sustained injuries Jaiprakash remained conscious and has narrated the entire incident. According to Jaiprakash, he was supervising ploughing of the field when the appellants entered the field at about 10.00 p.m. On their arrival, appellants stopped the ploughing operation. Appellant no.3 abused and threatened to kill him. Appellant no.1 then dealt two sickle blows to him. First on the left leg below the knee and second on the head. Certificate (Exh.62) shows that Prakash had sustained two injuries. One was contused lacerated wound on the left parietal region of the size of 6 cm. X 2 cm. X 1 cm. having regular margins. The second injury is contused lacerated wound on the left knee of size of 4 cm. X 2 cm. X 1 cm. the injury was vertical in direction and had regular margins. Bony pieces were seen at the site of the injury. The X-ray disclosed fracture on upper end of tibia. According to Dr. Suryawanshi, (PW-11), both the injuries were caused by sharp weapon. Jaiprakash has given details of the assault on his uncles. According to Jaiprakash, Baburao (PW-9), first arrived at the scene of occurrence in response to the alarm raised by him. On his arrival, appellant no.2 dealt a blow on left hand finger of Baburao with Katti followed by sickle blow on the head dealt by appellant no.1. Appellant no.2 dealt 2nd blow on the right leg below the knee with Katti. His uncle Subhash and Rajabhau were just behind Baburao. On their arrival, appellant no.2 dealt blow on the right leg below the knee of Rajabhau. Appellant no.1 dealt sickle blow on his right arm. Appellant no.4 dealt stick blow on head of Subhash followed by appellant no.2, who dealt blow on the left hand with Katti. Appellant no.1 dealt two sickle blows on the head of Subhash, one of which was on the right ear. During the assault, appellant nos.3 and 4 were instigating appellants nos.1 and 2 to kill the victims. Evidence of Jaiprakash fully agrees with the evidence of his uncles. Narrating the incident, Baburao (PW-9) testifies that on his arrival, appellant no.2 dealt a blow on his right leg below the knee by means of Katti. Appellant no.1 dealt sickle blow on his head, as a result of which, he lost consciousness.

9. Injury Certificate (Exh.61) shows that Baburao suffered six injuries. These are -

(i) CLW over the frontal region 4 x 1 cm. x 1 cm. transverse in direction having regular margins;

(ii) CLW over the occipital region 5 x 2 cm. x 5 cm. transverse in direction having regular margins;

(iii) CLW left hand at the base of the thumb in web space 3 x ½ cm. 3 cm. oblique in direction having regular margins;

(iv) CLW just below the right patella open fracture of tibia fibula - 5 cm. x 2 cm. x 1 cm. vertical having regular margins;

(v) CLW left lower leg - 3 x 1 x 1 cm. - vertical having regular margins. The X-ray disclosed compound fracture of tibia fibula at upper 1/3rd;

(vi) Multiple abrasion on the left lower leg.

According to Baburao, he lost consciousness after suffering two injuries. The medical evidence, thus shows that assault on Baburao continued after he lost consciousness.

10. Victim Rajabhau (PW-8) testifies that on his arrival, Appellant no.1 dealt sickle blow on his right hand and Appellant No.2 dealt blow on his right leg by means of Katti. Injury Certificate (Exh.63) substantiates his evidence. Rajabhau has suffered - (i) CLW over right lower leg 3 x 5 cms. at the middle one third. The bone was exposed. X-ray disclosed fracture of tibia, and (ii) CLW over right arm lateral middle one third 3 x 2 cms. Both the injuries were bleeding and were caused by sharp weapon.

11. Subhash, who was last victim bore the brunt of the wrath of the assailants. Subhash (PW-7) testifies that on his arrival. Appellant No.1 dealt sickle blow on left and right side of his head. Appellant No.2 dealt a blow with Katti on the wrist of his left hand and the fingers of right hand. Appellant No.1 then dealt another sickle blow on the left ear followed by another blow on the left leg below the knee. After that, he became unconscious. His evidence also receives corroboration from the medical evidence. Subhash was seriously injured and was in critical condition when examined by Dr. Suryawanshi (PW-11). The Medical Officer therefore, advised relatives of the patient that he should be shifted to another well-equipped hospital for further treatment. Injury Certificate shows that Subhash has sustained following eight injuries:-

(1) CLW over left external pinna 3 x 3 cms. vertically oblique having regular margins;

(2) CLW post auricular area left side 3 x 2 cm. x 1 cm.;

(3) Contusion with CLW forearm 3 cm. x 2 cm. x 1 cm. transversing Radius and ulna were fractured.

(4) Abrasion on the left lower leg regular margin bleeding positive vertifically size 2 x 1 x 1/4th cm.

(5) CLW right 5th finger size ¼th x ¼th cm.

(6) CLW right 3rd finger ¼th x ¼th - bleeding positive transversing.

(7) CLW scalp right frontal parietal region - 3 x 2 cm. x 1 cm. transverting having regular margin. C.T. scan showed intra carebral hematoma;

(8) CLW left occipital area 3 x 3 x 1 cm. transverse in direction having regular margins. There was evidence of fracture of inner occipital bone.

All the injuries were bleeding. Except injury no.4 all the injuries were caused by sharp edged weapon.

12. As a result of the advise of Dr. Suryawanshi, Subhash was shifted to the hospital of Dr. Sham Agroya (PW-10). Dr. Agroya has also referred to multiple CLW sustained by the patient and has mentioned that CT scan disclosed haemorrhagic contusion in right basal ganglia and left medial temporal region. Therefore, he had to operate in emergency. He had done tracheostomy. During operation he removed right side hematoma. According to Dr. Agroya, having regard to his serious condition, the patient continued on critical care after the operation.

13. Referring to the evidence of Dr. Suryawanshi and Dr. Agroya, learned Counsel Shri. Choudhari submitted that there is conflict between the opinions of two experts. According to learned Counsel, during the cross-examination, Dr. Suryawanshi has admitted that the Contused lacerated wounds are generally caused by hard and blunt object (Para 9 of his evidence), whereas Dr. Agroya has emphatically opined that the injuries were caused by sharp edged weapon, more particularly, by Katti (Article 10). Though in his opinion the injuries could also be caused by sickle (Article no.9). Referring to admission of Dr. Suryawanshi, learned Counsel contends that the assault was not by means of sharp cutting weapons. The medical evidence, therefore, contradicts evidence of the injured. The interpretation of the admission by the medical officer by learned Counsel is not correct. Dr. Suryawanshi has merely stated that generally Contused Lacerated Wounds can be caused by hard and blunt object. The Medical Officer has not opined that contused lacerated wounds can not be caused by sharp edged weapon. On the contrary, Dr. Suryawanshi has himself mentioned in all the Injury Certificates that Contused lacerated wounds sustained by the victims were caused by sharp edged weapon. There is, thus, no conflict between the evidence of the experts. Evidence of both these experts shows that injuries suffered by the victims were caused by sharp edged weapons. In this view of the matter, contention of learned Counsel that the medical evidence does not corroborate ocular testimony of the injured cannot be sustained.

14. Learned Counsel for the appellants have contended that there is no independent corroboration to the testimony of the victims. The prosecution has examined two witnesses outside the family. First is Balasaheb, who is maternal cousin of the First Informant, Jaiprakash. Balasaheb has referred to the dispute between the two families. Balasaheb has mentioned that the head lamps of the tractors were burning during the course of the incident. He then referred to the participation of each appellant and part played by them during the assault on the injured and the injuries caused by them. Contention of learned Counsel that no reliance can be placed on the evidence of Balasaheb as he is an interested witness, cannot be sustained in the facts of the present case. It is pertinent to bear in mind that presence of this witness during the course of occurrence is not in dispute and his evidence could not be impeached during the cross-examination. The Trial Judge has found evidence of this witness to be trustworthy after careful consideration of the attending circumstances. Unless it is shown that the witness is actuated with malice and that his evidence suffers from serious infirmities, the evidence of interested witness cannot be discarded on that ground alone. In the present case additional factor to be considered is that the witness is also closely related to the appellants Besides this, the appellants had threatened to set his tractor on fire and, therefore, he himself and Bharat remained neutral. Having regard to the fact that the witness is a close relative of the appellants and has given logical explanation for remaining neutral, no fault can be found with the conclusion of learned Trial Judge that evidence of this witness is trustworthy. The other witness is Shivaji (PW-4) who was cultivating adjoining land. Having seen him, the appellants ran away. Therefore, he was not witnessed the incident but has confirmed that the head lights of the tractor were burning.

15. Learned Counsel Shri. Choudhari has referred to the contradiction in the testimony of First Informant and recitals of F.I.R. In the F.I.R. it is mentioned by Jaiprakash that the incident has taken place in the strip admeasuring 5 acres and that the second blow was dealt by Appellant No.1 with a stick. There is no dispute in respect of the scene of occurrence. All other witnesses, including the neighbouring cultivator Shivaji, have categorically testified that the incident took place in the strip admeasuring 3 acres. The other contradiction regarding stick blow is clearly due to inadvertence. Learned Counsel Shri. Choudhari has further contended that report lodged by Jaiprakash cannot be treated as an F.I.R.. It is submitted that after the occurrence, Balasaheb went to the village and had given information about the occurrence to Sahebrao. Sahebrao went to the Police Station and came to the scene of occurrence with the Investigating Officer. According to learned Counsel information given by Sahebrao to the police ought to have been recorded and treated as F.I.R. Sahebrao is grandfather of the First Informant and is a rustic villager. He had not witnessed the incident and was not in a position to make an authentic statement. Besides, the first priority of the Investigating Officer was to ensure that the injureds receive prompt medical treatment. In these circumstances, the Investigating Officer is justified in taking precautions to ascertain the truth before recording the F.I.R. Similar situation is dealt with by the Apex Court in the matter of Binay Kumar Singh Vs. State of Bihar, reported in AIR 1997 SC 322. While dealing with this aspect, Their Lordships observed in para 8-A that: "Under Section 154 of the Code the information must unmistakably relate to the commission of a cognizable offence and it shall be reduced to writing (if given orally) and shall be signed by its maker. But the officer In-charge of a police is not obliged to prepare FIR on any nebulous information received from somebody who does not disclose any authentic knowledge about commission of the cognizable offence." As Sahebrao has not witnessed the incident and was not in a position to make authentic statement giving necessary details, contention of learned Counsel that information given by Sahebrao should have been treated as an F.I.R., cannot be sustained. The injured were taken to the hospital and were under treatment. At the first opportunity, Investigating Officer recorded statement of Jaiprakash who disclosed all the details and a commission of cognizable offence. Thus, the Investigating Officer was justified in treating this statement of Jaiprakash as an F.I.R. Learned Counsel Shri. Chaudhari has further contended that delay in recording F.I.R. has not been explained by the prosecution. The evidence on record, however, shows that Investigating Officer reached the scene of occurrence at 11.00 p.m. He then took the injureds to hospital and thereafter recorded statement of injured Jaiprakash at 2.15 a.m. All the attending circumstances; nature of injuries sustained by the victims; number of victims; efforts made to provide medical aid to them; seriousness of the injury suffered by the victims etc. are required to be taken into consideration while arriving at the conclusion whether delay is unreasonable. In the present case, the explanation given by the Investigating Officer is logical, and properly explains the delay. Therefore, there is no force in the contention of learned Counsel that there was unreasonable delay in lodging the F.I.R.

16. Learned Counsel for the appellants Shri. Choudhari next contended that discovery is not properly proved by the prosecution and, therefore, the evidence of discovery should be discarded. It has been brought on record that both the panchas are near relatives of the injureds. Confessional statements of appellant nos.1 and 2 are recorded one after other. Appellate No.1 volunteered to produce sickle from the cement tank in front of the cattle shed and appellant no.2 is alleged to have stated that he has concealed the Katti in the same cement tank. Appellate nos.1 and 2 are shown to have taken out the weapons from the same cement tank one after other. On the face of it, such an evidence of discovery is unsatisfactory. If the weapons are concealed in the same cement tank, then both the accused had knowledge about this fact and anyone of them could have disclosed the place of concealment. Apart from this, there is delay in recording confessional statement. The incident took place on 20th March, 2002. Appellant nos.1 to 3 were arrested on 21st and the discovery is shown to be on 24th. This delay has also not been properly explained. If totality of the circumstances is taken into consideration, contention of learned Counsel for the appellants that the evidence of discovery deserves to be discarded, will have to be sustained. Learned Counsel Shri. Choudhari has next referred to the evidence of defence witness Ms. Kacchi Bilkish Rafique (DW-1) who is the Special Judicial Magistrate. According to her, she recorded dying declarations of all the injureds. However, no evidence is produced to show that the witness was in fact called upon by the police to record dying declarations. Be that, as it may; as the injureds have survived these statements can be used for a limited purpose of corroboration or contradiction in terms of sections 21(1) or 157 of the Evidence Act. It is contended by learned Counsel that there are material discrepancies between these statements and evidence of Jaiprakash, Baburao and Rajabhau. Since the appointment of Special Judicial Magistrate, the Special Executive Magistrate have no authority to record statements. Thus, these statements are not authentic. In addition all the statements are shown to be recorded at 11.30 a.m. Apart from this, it can be seen that Jaiprakash has made reference to all the essential details in his statement. There is no material omission in the statement of Rajabhau. Baburao was in the state of shock. Thus, undue importance to his statement that they were assaulted while they were sleeping as evidence of these witnesses but could not be impeached on any material point during the gruelling cross-examination. In this view of the matter, learned Trial Judge was justified in holding that the evidence of Special Executive Magistrate does not affect credibility of the evidence of Jaiprakash, Rajabhau and Baburao.

17. Taking over all view of the evidence on record, it can be seen that the evidence of injureds and Balasaheb receive corroboration from the medical evidence. Their evidence is harmonious. There are no material omissions or contradictions in the evidence of these witnesses. The evidence of prosecution witnesses shows that the assault was preplanned. The fact that appellant nos.1 and 2 used vicious force to inflict grievous injurious and targeted vital part of the body by inflicting injuries on the head discloses that the common intention was to cause fatal injuries. Each of the appellant participated in the assault and shared the common intention. Learned Trial Judge was, therefore, justified in holding that the evidence of these witnesses is worthy of belief. In this view of the matter, no fault can be found with the conclusion reached by learned Trial Judge that the prosecution has established guilt of the appellants beyond reasonable doubt.

18. Learned Counsel for the appellants next contended that the evidence on record does not disclose intention on the part of the appellants to commit murder. Therefore, learned Trial Judge has committed an error in recording conviction for the offence punishable under Section 307 of the Indian Penal Code. According to learned Counsel, at the most the offence would fall under Section 324 of IPC. It is further contended that overt acts of appellants nos.3 and 4 are not established, therefore, both these appellants deserves to be acquitted. For attracting Section 307 of the Indian Penal Code, prosecution must establish that the accused acted with intention or knowledge that if the death is caused by his act, he would be guilty of committing murder. To justify conviction under Section 307 of Indian Penal Code, it is not necessary that bodily injury capable of causing death should be inflicted. Existence of intention, coupled with the overt act is sufficient to bring the case of accused within the ambit of Section 307 Laying down the principles regarding application of Section 307 of IPC in the matter of Parsuram Pandey and Ors. Vs. State of Bihar, reported in AIR 2004 SC 5068 : [2005 ALL MR (Cri) 796 (S.C.)], Their Lordships observed in para 14 of the report that : "For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose carrying out the intention. The Section clearly contemplated an act which is done with intention of causing death but which fails to bring about the intended consequences on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is necessary ingredient of Section 307, there can be no offence of attempt to murder. Intent which is state of mind cannot be proved by precise direct evidence as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place."

19. In the present case, medical evidence on record shows that injuries were inflicted on the head of the victim which is vital part of the body by means of lethal weapons like sickle and Katti. The assault on Jaiprakash started with the threat given by appellant no.3 - Pandurang that they are going to kill him. When Baburao, Rajabhau and Subhash came to his rescue, they were also mercilessly assaulted. The injuries sustained by the victims clearly establish the severity of the attack. The fact that the appellants came to the scene of occurrence, armed with lethal weapons, shows premeditation. The fact that severe injuries were inflicted on the head establish intention to inflict fatal injuries. Considering the nature of assault and weapons used, learned Trial Judge is perfectly justified in coming to conclusion that the intention of the appellants was to cause death of the victims. In the light of these facts contention of learned Counsel for the appellants that offence punishable under Section 307 is not established and at the most offence punishable under Section 324 of IPC is made out, deserves to be rejected.

20. The appellants were also charged for lesser offence punishable under Sections 326, 504 and 506 of IPC. At the commencement, appellant no.3 threatened first informant with death. During the assault grievous injuries such as fractures were caused to Jaiprakash, Subhash, Baburao and Rajabhau by lethal weapons. The evidence on record thus establish ingredients of the lesser offences punishable under Sections 326, 504 and 506 of the Indian Penal Code. Having regard to the reliable evidence on record, no fault can be found with the conviction of appellants by learned Trial Judge for offences punishable under sections 326, 504 and 506 of the Indian Penal Code. The order of conviction passed on the appellants by learned Trial Judge therefore, deserves to be upheld.

21. Learned Counsel for the appellants have further contended that the overt acts of appellant no.3 are not established, therefore, he deserves to be acquitted. This contention cannot be sustained. It was the appellant no.3 who took the lead by threatening to kill Jaiprakash and instigated his sons during the course of the incident. The evidence on record has established premeditation. As all the appellants shared common intention, all of them are guilty of the offences committed in furtherance of the common intention.

22. The learned Counsel for the appellants have contended that the sentence passed on the appellants is too severe. The established principles for determining the quantum of punishment is that the punishment should be commensurate with the guilt. For determination of the quantum of sentence, it is necessary to consider all the relevant facts including the gravity of the offence, the manner in which it is committed, environment in which it is committed. The theory of just desert has to be applied for determination of the quantum. In the present case, learned/Trial Judge has applied deterrent theory of punishment. The punishment should have an element of deterrence, but should never be excessive. Due care must be taken to ensure that the sentence is not proved to be counter productive. In dealing with this aspect in the matter of Lehana Vs. State of Haryana, reported in (2002)3 SCC 76. Referring to the theory of just desert in para 26, Their Lordships observed in para 28 of the report that "Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions it remains a strong influence in the determination of sentences. Uniformly disproportionate punishment has some very undesirable practical consequences."

23. Having regard to the totality of the circumstances, the contention advanced by the learned Counsel for appellants that the sentence is too severe, deserves to be accepted. Contention of learned Counsel for appellant no.4 that having regard to the situation in which appellant no.4 found himself and considering that he is physically handicapped, he deserves special consideration also will have to be sustained. However, while determining quantum of punishment, care has to be taken to ensure that the deterrent effect is achieved. Considering all the pros and cons, the sentence imposed on appellant nos.1 to 3 for the offence punishable under Section 307 of IPC, deserves to be reduced to six years of rigorous imprisonment. Appellant no.4 has already undergone more than one and half year of imprisonment. Therefore, so far as he is concerned, reduction of sentence to the imprisonment already undergone would meet the ends of justice.

24. In this view of the matter, the appeal is partly allowed. The Order of conviction is maintained. However, the order of sentence is modified. Sentence imposed on appellant nos.1 to 3 for the offence punishable under Section 307 of IPC is reduced to six years rigorous imprisonment maintaining order regarding imposition of fine and the order imposing sentence of imprisonment and fine for other offences. The order regarding imposition of sentence in respect of appellant no.4 is modified reducing the sentence to imprisonment already undergone and maintaining the order regarding imposition of fine. Order accordingly.

Appeal partly allowed.