Criminal Appeal No.349 of 2009,Criminal Appeal No.602 of 2009,Criminal Revn. Appln. No.209 of 2009

24th March, 2011

Petitioner Counsel: Shri. SATYAJIT S. BORA
Respondent Counsel: Smt. R. K. LADDA

Cases Cited:
Virsa Singh Vs. State of Punjab, 2007 ALL SCR (O.C.C.) 33 : AIR 1958 SC 465 [Para 21,31]
Satish Narayan Sawant Vs. State of Goa, 2009 ALL SCR 2798 : 2009 D.G.L.S. (Soft.) 1138 [Para 30]
Vishnu Vs. State of Rajasthan, 2009 AIR SCW 6363 [Para 32]

JUDGMENT

NARESH H. PATIL, J. :- The Appellant Sitaram Tukaram Masulkar was charged along with six other persons, for an offence punishable under Section 148 of the Indian Penal Code, under Section 323 read with Section 149, Section 336 read with Section 149, Section 504 read with Section 149, Section 302 read with Section 149 of the Indian Penal Code and under Section 135 of the Bombay Police Act. In the Sessions Trial No.9 of 2008, the Additional Sessions Judge, Parbhani, by Judgment and Order delivered on 1st July, 2009, convicted the Appellant Sitaram for an offence punishable under Section 302 of the Indian Penal Code. The original accused Nos.2 to 4 were convicted for offence punishable under Section 324 read with Section 34 of the Indian Penal Code. The Appellant Sitaram was convicted under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay fine of Rs.5,000/- (Rupees Five Thousand) and in default to suffer simple imprisonment for three months. The original accused Nos.1 to 4 were convicted for offence punishable under Section 324 read with Section 34 of the Indian Penal Code and sentenced to suffer simple imprisonment for two months and to pay fine of Rs.1000/- (Rupees One Thousand) each and in default to suffer simple imprisonment for fifteen days. Sentences awarded on the Accused Sitaram were directed to be run concurrently. Original accused were acquitted from rest of the charges levelled against them.

2. The prosecution case, in substance, is that original accused persons and complainant are resident of the same village Pokharni, Tq-Parbhani, Dist-Parbhani. They belong to Wadar community. They stay in locality namely, "Wadarwada". Original accused Nos.1, 2 and 3 are real brothers. Accused No.4 is son of aunt of accused Nos.1 to 3 and accused No.5 is husband of sister of accused Nos.1 to 3. Accused No.6 is husband of aunt of accused Nos.1 to 3. Accused No.7 is son of accused No.6.

3. On 19th August, 2007, Uttam Bele was proceeding by the side of road where construction of road was going on. He told the labourers that they should construct the road properly. Uttam Bele returned home at about 4.30 p.m. as his motor cycle was punctured. He told his son Bhausaheb to take his motor cycle to puncture repair shop of Badrimama. Uttam Bele went to puncture repair shop at about 5.30 p.m. and asked his son to return home. Uttam Bele was waiting at the shop to get completed the puncture removing work. At that time, accused Sitaram and Shivaji came at the shop and asked him as to what right he had got to instruct the labourers to do the work properly. Uttam replied that as he would be using the said road, he instructed the labourers. It is alleged that accused Sitaram and Shivaji assaulted Uttam with kicks and fist blows. Bhausaheb Wagh, Sheshrao Wagh and Tukaram Wagh arrived at the spot and rescued the quarrel. Thereafter Uttam went to his home at about 6.30 p.m.

4. The prosecution alleges that original accused Nos.1 to 7 went to the house of complainant Uttam in between 7.00 to 7.30 p.m. and started abusing him in filthy language. Deceased Tukaram, brother of Uttam, went to the accused and asked them that quarrel was already over and they should not agitate the issue again. At that point of time, accused Sitaram gave blow with wooden log on the head of Tukaram. Tukaram sustained bleeding injuries and collapsed due to the said assault. It is alleged that accused Shivaji assaulted Tukaram with a stone on his leg and Laxman gave a blow of stick on the femur region of Tukaram. The prosecution witness Uttam intervened. Accused Laxman inflicted a blow with a stick on left shoulder of Uttam and Shivaji assaulted with stone on abdomen and femur region of Uttam. It is alleged that accused assaulted Raosaheb son of Tukaram and Bhausaheb son of Uttam. Accused assaulted Kishan, who is brother of Tukaram. Thereafter accused ran away.

5. The prosecution alleges that Uttam and others lifted injured Tukaram and carried him in Auto Rickshaw upto village Phata and from there, they carried him in Jeep to Parbhani Civil Hospital. Considering the condition of Tukaram, medical officers of Civil Hospital, Parbhani referred Tukaram to Nanded. Tukaram was carried in Ambulance to private hospital at Nanded. He was treated there and on the next day i.e. on 20th August, 2007, Tukaram succumbed to the injuries at 3.00 p.m. The Lotus Hospital, where Tukaram was being treated, forwarded instructions in respect of medico legal case to Police Station, Wajirabad, Nanded. Police reached Lotus Hospital, recorded statement of Raosaheb, drawn inquest panchanama and the dead body was sent for post-mortem. After post-mortem was completed, dead body was brought to Parbhani at late night. It is alleged that clothes of Kishan, Shewantabai and Uttam had blood stains. The said clothes were seized by Police. Complainant Bhausaheb was informed about the death of Tukaram on 20th August, 2007 at about 6.00 p.m. The complainant Bhausaheb went to Police Station, Daithana and lodged F.I.R. against the accused persons, which was registered at Police Station, Daithana at 20.05 hours on 20th August, 2007 as Crime No.72 of 2007.

6. The Investigation Officer drew spot panchanama and arrested Sitaram on the same day and other accused persons were arrested on next day i.e. on 21st August, 2007. Blood stained earth, simple earth and one stone were seized from the spot of incident. Police recorded statements of witnesses. After completing the necessary investigation, the Police filed charge-sheet against the accused in the Court of J.M.F.C. (5th Court), Parbhani. The case was committed to Sessions Court on 11th February, 2008. The charge was framed against accused persons on 20th May, 2008, to which the accused pleaded not guilty and claimed to be tried.

7. The prosecution witness PW-1 Uttam Bele deposed before the Court that he is related to accused. He described the incident and specifically stated that accused Sitaram and Shivaji assaulted him with kicks and fist blows. He thereafter narrated the incident wherein accused persons came to the house of the complainant and started abusing them. Uttam is brother of deceased Tukaram. In respect of assault on Tukaram, the witness deposed that Sitaram gave blow with wooden log stick on the head of Tukaram. Tukaram sustained bleeding injuries and collapsed down. He has also narrated that Shivaji assaulted Tukaram and Laxman gave stick blow on the femur of Tukaram. Shivaji assaulted this witness too. Accused also assaulted his brother Kishan and thereafter ran away. The witness further narrated that Tukaram was lifted and taken to Civil Hospital, Parbhani and thereafter to private hospital at Nanded.

The witness submits that there was street light near the spot. Though it was evening hours, there was visibility and it was not dark and there was some light. The witness states that due to injuries on head, brain matter of Tukaram had come out.

8. In the cross-examination, the witness PW-1 Uttam stated that their wasti is of Wadar community. Their main work is stone breaking. His relations with accused were not good. The accused and the witness were not on talking terms. Electric pole is placed in front of house of Girjabai and the said light provided sufficient visibility near the house of witness and the deceased. The distance between house of accused Sitaram and Girjabai, aunt of this witness, was about 125 ft.

The witness deposed that the incident of abuses and assault was going on for about 10 minutes. Thereafter the assault took place and Tukaram was carried in Auto Rickshaw to hospital. None had arrived at the spot from the lane till deceased Tukaram was carried and surrounding people had closed their doors as they were afraid of pelting of stones. None else other than the witness and accused knew about the incident. It is further deposed that there was heap of stones lying in front of house of Bapu Bele. Deceased Tukaram had height of 5 ft. and was having well built body. The witness has named Sitaram, Sahebrao, Laxman, Rama and Mariba. The witness could not tell which of the accused assaulted other persons. This witness sustained contusions due to pelting of stones from a distance of 2 ft. weighing 2 kg. On the day of incident, the witness and other injured were not referred to the hospital. He deposed that they were referred to the Hospital on 21st August, 2007 and till then they did not take any treatment. They were provided with minor treatment.

The witness further deposed that at Parbhani Civil Hospital, they informed the doctor that Tukaram was assaulted but they did not inform the police out post attached to the Civil Hospital, about the incident. According to the witness, Tukaram was unconscious through-out. The inquest panchanama was drawn in his presence. The police had recorded statement of Raosaheb son of Tukaram, between 7.00 to 7.30 p.m. The witness along with others reached Pokharni at 11.30 p.m. on 20th August, 2007. Complaint was lodged to the police at Lotus Hospital, Nanded after death of Tukaram. The witness was suggested that there was poor visibility at the spot and police had to conduct spot panchanama with the help of battery, to which the witness stated that he did not know about the same. The defence brought on record certain omissions in respect of evidence of this witness in respect of settling of the earlier quarrel and regarding Laxman giving blow with a stick on his left shoulder and Shivaji pelting stone, which caused injuries to abdomen and femur.

9. PW-2 is Bhausaheb Bele. Deceased was his elder paternal uncle. He narrates the incident in the same manner as was narrated by PW-1. He was cross-examined. He denied suggestion that there was no visibility on the spot. He stated that nobody came there as stones were pelted. The said incident was going on for about 10 to 15 minutes. The witness was in the Hospital at Nanded throughout the night on the day of incident till 1.30 p.m. of next day. He stated that in his presence, police made enquiries with his cousin brother Raosaheb. The witness denied suggestion that they had pelted stones on the house of Sitaram and others.

10. PW-3 Kishan Bele is brother of deceased Tukaram. He narrates the same incident in the similar fashion. The witness admits that he did not disclose name of the assailants to the Doctor at Nanded and further states that their relations with accused were strained.

11. PW-4 is Girjabai Pawar. Deceased was her nephew. She too narrates the incident in similar fashion. PW-5 is Shaikh Akbar Shaikh Yasin, who was declared hostile.

12. PW-6 is Raosaheb Tukaram Bele, who is son of deceased Tukaram. His evidence is material for the case. He narrates the incident and the assault on the head of his father by Sitaram, with the help of a wooden log. In his deposition, the witness stated that Police had come to Lotus Hospital, Nanded and recorded statement. At that time he made statement that Sitaram had given blow with stone and Shivaji had given blow with stick on the person of deceased. He has stated so as he was not in a proper frame of mental condition as his father was dead. According to witness correct facts are narrated by him in the supplementary statement recorded on 10th November, 2007. He identified accused before the Court.

In his cross-examination, the witness deposed that Sitaram assaulted the deceased from behind due to which deceased fell down on the ground, on his head. None from the neighbourhood had gathered there as accused were pelting stones. The witness stated that he too sustained contusions and was referred to the doctor on 21st August, 2007. Till that time, he did not take any treatment.

13. PW-7 Wyankat Bamne is a panch in respect of discovery of sickle at the instance of accused Sitaram. He deposed that Sitaram had made a statement that the stick used in assault was concealed by him under the heap of cotton stems near the house of Rama Masulkar and he will produce the same. The panchanama was signed by Sitaram. It bears his signature also. They then went to the spot and at the instance of Sitaram, four simple wooden sticks and one wooden log was discovered, which had blood stains. The articles were seized under a panchanama.

In cross-examination the witness stated that heap of cotton stems was on the East side of Tadpangri road, in open space. The muddemal articles, sticks were of Babul tree. Four sticks were of Babul tree and long stick was of Neem tree, according to the witness.

14. PW-8 Balasaheb Jadhav was a panch in respect of seizure of clothes of Appellant Sitaram. PW-9 Vallabh Dhotre was police constable who carried muddemal articles to Chemical Analyser, Aurangabad on 5th September, 2007.

15. PW-10 is Dr. Shubhangi Karadkhedkar. This witness conducted autopsy on the corpus of Tukaram. The Doctor opined that death was caused due to shock due to intracebral hemorrhage due to head injury on 20th August, 2007. The witness deposed that external injuries were mentioned in column No.17 of the P.M. Notes. There was stitch wound on left parietal region, there were 8 stitches. The deceased sustained abrasion over left leg, located centrally, 3 X 1/2 c.m. On internal examination the corresponding internal injuries were found by the Doctor which were mentioned in column No.19 of P.M. Notes. There was fracture of left parietal bone, 2 X 1 c.m. brain deep. Fracture of occipital bone 2 X 1 c.m. brain deep. The post-mortem report is at Exhibit 62 of the record. The witness had conducted 100 autopsy in her career. She deposed that fatal injury was possible due to blow with a wooden log.

In her cross-examination, the witness stated that size and nature of injury could have been stated but as injury was stitched, it was not proper for her to comment about the nature of injury. The witness could not tell the age of injury and as to whether injury was caused by sharp weapon or by hard and blunt object. She stated that such type of injury was possible in case of accident and by hit of a stone. The witness further stated that it could not be ascertained whether the injury was possible by wooden log or by stone or by fall in accident.

16. PW-11 Sunil Jaitapurkar is A.P.I. who arrested accused Sitaram, Shivaji, Mariba, Balasaheb, Rama, Laxman and Sahebrao.

17. PW-12 is Vishwanath Jadhav. He is a panch in respect of seizure of clothes of deceased and Uttam Bele. PW-13 is Syed Khalil Syed Ismail, Police Head Constable. He was on duty on 20th August, 2007 at Vazirabad Police Station, Nanded, who received M.L.C. Information from Lotus Hospital, Nanded to the effect that Tukaram was admitted in the Hospital.

18. PW-14 Ashwini Ingle, was medical officer at P.H.C. Diathana since the year 2004 to 2009. This witness examined Bhausaheb Bele, Uttam Bele and Kishan Bele. According to her, nature of injuries suffered by them were simple in nature, caused by hard and blunt object. Age of injuries was stated to be less than 48 hours. Medical certificates accordingly issued, are at Exhibit 85, 86 and 87 respectively. The witness also examined Raosaheb Bele, who had suffered abrasion.

19. Witness No.15 is Shashikant Satav, who was on duty on 20th August, 2007 as S.D.P.O., Parbhani. The witness had given directions to P.S.I. Jaitapurkar to arrest accused persons who were absconding. He drew the spot panchanama. The witness deposed that Sitaram produced wooden log and four sticks used in the said offence, which were seized by him. In cross-examination, the witness stated that near Neem tree at the spot of incident, there was a pole having electric bulb. At the spot of incident light of lamp on the pole was insufficient and therefore they used battery light for drawing spot panchanama.

20. Learned counsel Shri. Satyajit Bora appearing for the Appellant Sitaram submitted that version in respect of attack on the deceased by Appellant is absolutely doubtful version. There is contradiction in respect of the weapon used in the assault. There were no blood stains on the wooden log, which was recovered allegedly from the Appellant by the prosecution. The prosecution witnesses are highly interested as they are inter-se related. Prosecution failed to examine independent witnesses though there were number of neighbours residing at the spot of incident and they were available. In respect of the spot, the counsel submitted that heap of stone was seen at the spot. There was quarrel for some time, which resulted in pelting of stones, in which accused also sustained injuries. The manner in which the assault was given allegedly by the Appellant from behind on the person of Tukaram, is not explained properly and is doubtful version of the prosecution witnesses. The delay in reporting the incident of assault to police is fatal to prosecution case. The delay is not explained. The F.I.R. which was lodged after about 24 hours from the incident, was due to the fact that prosecution witnesses thought over the incident to involve as many as accused as possible and concocted an imaginary story. The learned counsel Shri. Bora further submitted that genesis of the prosecution case is suppressed, which creates serious doubts in respect of the truthfulness of the prosecution case. This is a case where adverse inference is required to be drawn against the prosecution witnesses. The counsel submits that alternatively, in case the Court comes to the conclusion that the incident had taken place and Appellant had assaulted deceased with a wooden log, then considering material on record, the prosecution failed to establish that the Appellant could be convicted for an offence punishable under Section 302 of the Indian Penal Code.

21. Smt. Ladda, learned A.P.P. submitted that the State had filed Appeal against acquittal of Accused Nos.2 to 7 bearing Criminal Appeal No.602 of 2009. The prosecution examined 15 material witnesses, majority of whom are eye-witnesses. The accused formed unlawful assembly, went to the house of the complainant side and assaulted deceased Tukaram from behind, with a forceful blow of wooden log, on the vital part of the body. Blood stains are found on the spot. The blood group of deceased and accused is "A". There were injured eye-witnesses in the case and there is no reason for them to speak lies and to involve innocent persons. Learned A.P.P. submitted that in the light of the principles laid down in the case of Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 : [2007 ALL SCR (O.C.C.) 33], Appeal filed by the Appellant does not deserve consideration and deserves to be dismissed.

22. We have perused the original record and proceedings, evidence on record, relevant portion of the Judgment of the trial Court and considered the submissions advanced by the learned counsel appearing before us.

23. We find that the incident emanated from a trivial issue which started on Uttam asking labourers to do the construction of the road properly. Earlier to the incident, there was some altercation between Appellant and Uttam at the puncture repair shop at about 5.30 p.m. In the late evening between 7.00 to 7.30 p.m. all the accused persons 7 in number, according to prosecution, formed unlawful assembly and reached the house of complainant Uttam with a common object to assault him. If this is a prosecution case, then it has to be scrutinized as to what was the object in assaulting deceased Tukaram, who is elder brother of PW-1 Uttam. Even according to prosecution witnesses, when the accused persons reached the spot, they started abusing in filthy language. The deceased intervened and asked them as to why they are agitating the issue which was settled earlier. It has come on record that there was pelting of stones. Both, the accused and complainant side suffered injuries. The deceased was taken soon thereafter in injured condition to Civil Hospital, Parbhani and therefrom to Nanded. It is curious to note as to why prosecution witnesses chose not to file police complaint immediately though they shifted deceased from Civil Hospital Parbhani to private Hospital at Nanded. It has come on record that medical officer of Lotus Hospital, Nanded intimated the police about medico legal case but the prosecution witness PW-1 Uttam chose to file complaint after near about 24 hours with Daithana Police Station on 21st August, 2007. The delay in respect of filing of the complaint was tried to be explained by the prosecution witnesses that it was due to the fact that they themselves were injured and deceased Tukaram was required to be medically treated first. Considering nature of injuries suffered by prosecution witnesses, we do not find that it was so difficult for them to lodge complaint against accused persons when they had proper opportunities to lodge the same while deceased Tukaram was taken to hospital at Parbhani and thereafter at Nanded.

24. In the facts of the case, the genesis of the prosecution case is required to be looked into minutely. We do not find that there was strong motive for accused Appellant in assaulting the complainant side, more particularly, the Appellant assaulting deceased Tukaram. There is no evidence on record to show that there was specific enmity between Appellant and deceased Tukaram. Though it has come on record that relations between both the parties were strained, but still the prosecution struggled to establish that there was motive for the accused persons to commit murder of deceased Tukaram. While answering charge under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code, the prosecution, in our considered view, has failed to establish that there was an unlawful assembly of accused persons formed with a sole object to commit murder of deceased Tukaram or any other prosecution witnesses.

25. The defence had brought on record minute details in respect of spot of incident. Considering the evidence on record, we find that the visibility at the spot must be low. The police had to use battery light for drawing spot panchanama. Though prosecution witnesses stated that there was electric pole and electricity was on and it was providing sufficient visibility, we are not fully convinced on the issue that on the spot and around the spot, there was reasonably sufficient visibility. But on that count, the evidence of prosecution cannot be discarded that the incident had not taken place wherein deceased Tukaram suffered serious injuries and thereafter died.

26. Considering the evidence, we find that the incident had taken place wherein deceased Tukaram suffered injuries and fatal blow was given by the Appellant Sitaram. There is discrepancy in the evidence of prosecution as to whether the deceased was assaulted with a wooden log or stone. But considering the medical evidence in respect of the injuries suffered by the deceased on his head, we can reasonably gather that blow must have been given with the help of wooden log. The blow was so severe that the deceased collapsed and had to be taken to the Hospital.

27. The defence had raised another issue in respect of absence of independent witness. It is true that incident happened at a place which was surrounded by other houses. But according to prosecution witnesses, nobody came out of the house as pelting of stones was going on and therefore nobody could see the incident. Though the version is little harsh to digest, but merely because prosecution witnesses were related to deceased, their evidence cannot be discarded. Their evidence could be still relied upon as long as it is truthful and inspires confidence.

28. The defence further submitted that the injuries suffered by the accused persons were not explained by the prosecution. In the facts of the case, we do not find that even in case the injuries suffered by the accused persons are not explained by the prosecution, the prosecution version in respect of assault is required to be discarded.

29. The trial Court had considered the evidence and thereafter reached conclusions wherein the Appellant Sitaram was convicted for an offence punishable under Section 302 and 324 of the Indian Penal Code. The State had filed Appeal against acquittal of the accused persons from the offences for which they were charged with. The complainant Bhausaheb Bele had also filed Criminal Revision Application No.209 of 2009. In the facts of the case, we do not find that the State Appeal and Revision filed by the complainant deserve consideration in the light of the evidence on record.

30. Learned counsel Shri. Bora placed reliance on the reported Judgment in the case of Satish Narayan Sawant Vs. State of Goa, 2009 D.G.L.S. (Soft.) 1138 : [2009 ALL SCR 2798]. In the facts of the case, the Apex Court observed in Para 28 that:

"28. That being the well settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. Initially the accused-appellant also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. PW-7 in his cross-examination has categorically stated that death due to stab injury was in consequence of Injury No.1 and all other injuries were superficial in nature. So, it was only Injury No.1 which was fatal in nature. Factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness. Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 of IPC but it is a case falling under Section 304 Part II, IPC. It is trite law that Section 304, Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death."

31. The learned A.P.P. placed reliance on the reported Judgment in the case of Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 : [2007 ALL SCR (O.C.C.) 33]. In Para 16 of the Judgment, the Apex Court observed that:

"16. The learned counsel for the appellant referred us to Emperor Vs. Sardarkhan Jaridkhan, ILR 41 Bom 27 at p.29: (AIR 1916 Bom 191 at p.192) (B) where Beaman J., says that: "where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended". With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, in not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did snot, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he know of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree or seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or hot is one of fact and not one of law. Whether the would is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question."

32. The learned A.P.P. also placed reliance on the reported Judgment in the case of Vishnu & ors. Vs. State of Rajasthan, 2009 AIR SCW 6363. The Apex Court in Para 13 of the Judgment, observed that:

"13. The plea that the provisions of Section 149 would not be attracted to the facts of the case and therefore the appellants who had not played overt act in causing injury to deceased Sukh Lal could not have been convicted under Section 302 with the aid of Section 149 has no substance. Section 149 of the Penal Code provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilty of the offence committed. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. Whether a member of such unlawful assembly was aware as regards likelihood of commission of another offence or not would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in that behalf."

33. Considering the evidence on record, it is clear that the deceased died due to single blow inflicted on his head by Appellant Sitaram, which was a fatal blow. From the entirety of the facts and circumstances of the case and the manner of assault, the weapon used by the Appellant, we find that there was no intention to kill the deceased. We have to consider the genesis of prosecution case, the initiation of quarrel started with abuses resulting into pelting of stones and thereafter with a blow on the head of the deceased. It needs to be considered as to what offence the Appellant committed. The Apex Court observed that provisions of Section 304, Part II of the Indian Penal Code would come into play when death is caused but there was no intention on the part of the assailant to cause death or such bodily injuries as likely to cause death.

34. We are convinced that the Appellant could be convicted and sentenced for an offence punishable under Section 304, Part II of the Indian Penal Code instead of offence punishable under Section 302 of the Indian Penal Code. For the reasons stated above, we pass following order:

O R D E R

A) The Order passed by the learned Additional Sessions Judge, Parbhani in Sessions Case No.9 of 2008, convicting and sentencing the Appellant for the offence punishable under Section 302 of Indian Penal Code is quashed and set aside.

B) Instead, the Appellant Sitaram is convicted for the offence punishable under Section 304, Part II of the Indian Penal Code and sentenced to undergo imprisonment of five years with fine of Rs.5000/- (Rupees Five Thousand), indefault to suffer simple imprisonment for three months. The Criminal Appeal No.349 of 2009 is partly allowed.

C) The Criminal Appeal No.602 of 2009 is dismissed. Criminal Revision Application No.209 of 2009 is also dismissed.

Ordered accordingly.