2010 Supreme(Bom) 487

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.P. LAVANDE & THE HONOURABLE MR. JUSTICE P.D. KODE
The State of Maharashtra & Others
Versus
Maroti s/o Namdeo Shrirame & Others
CRIMINAL CONFIRMATION CASE NO.2 OF 2008 WITH CRIMINAL APPEAL NO.633 OF 2008 WITH CRIMINAL APPEAL NO.89 OF 2009 WITH CRIMINAL APPEAL NO.102 OF 2009
Decided on : 30-03-2010

Headnote:Indian Penal Code, 1860 - Sections 302, 324 and 452 Assault Four brutal murders Quarrel occurred at Pola-festival Accused 1-5 allegedly assaulted deceased persons with swords Trial Court convicted and sentenced accused 1, 2 and 3 under Section 302, 324 and 452, IPC Awarded death sentence to accused- 1 Acquitted accused 4 and 5 Cross appeals and confirmation case Held Murder of four persons committed by accused as members of unlawful assembly and caused injuries to prosecution witnesses Findings of trial Court not suffers from any infirmity or perversity Case not falls within category of rarest of rare cases Penalty of death unwarranted Sentence of imprisonment of life with direction not to release accused-1 before completing actual term of 20 years would be adequate punishment to accused-1 Confirmation of death penalty rejected Appeal of accused-1 partly allowed Appeal by State dismissed. Similarly after considering the reasoning given by the trial Court after duly considering and assessing the evidence on record in paragraph No. 66 of the judgment i.e. the last paragraph before considering point No. 2 framed for consideration, clearly reveals the trial Court having rightly concluded of the defence version being improbable or not borne out from the evidence surfaced at the trial. The said reasoning amongst other also reveals that the trial. The said reasoning amongst other reveals that the trial Court has duly taken into consideration on the allegation of deceased persons being under influence of liquor, the matters revealed from viscera report, the relevant day being festival day and possibility of villagers consuming liquor, the number of and nature of injuries on person of accused 1 and accused 2 and the number of and nature of serious injuries on the person of the deceased, weapon said to have been used in the incident. Thus the said reasoning being not apparently, arbitrarily, perverse and de hors the record and on the contrary being rationally based upon preponderance of probability, Court do not find any error being committed by trial Court in not accepting the contention advanced on behalf of accused 1, accused 2 and accused 3.

        Since it is settled legal position that without entertaining the unlawful objects envisaged by Section 141 of IPC, a person cannot be said to be member of an unlawful assembly and a question of such a person being a member being a question of fact and mere presence of a person by itself being no sufficient for coming to the conclusion of him-self being member of unlawful assembly, Court do not find any fault with the conclusion arrived by the trial Court after assessment of an evidence surfaced at a trial and the one of which substantive part has been reproduced by Court hereinabove after considering entire evidence and the same amongst other having not revealed that except PW 5 any other eye-witness having spoken the presence of all five accused during the first part of incident occurred at Pola festival or in other words the evidence of PW 4 Bhaskar-first informant and PW 7 Manish eye-witnesses for the said part having not established presence of accused 4 and accused 5 at the said place, Court find no fault with the conclusion drawn by the trial Court of the said accused being not present at the said place. Similarly even considering evidence of PW 9 Deu Shelke and PW 10 Vishwasrao, who had deposed about presence of all five accused persons the time of incident that had taken place in the house of Sunil Jawalkar, the evidence of other witnesses does not precisely establish presence of accused 3 at house of Sunil Jawalkar. The evidence of PW 2 Vinayak Ban to such effect is by way of omission. Having regard to the same and even evidence of PW 9 and PW 10 having failed to show any overt act on part of accused 5 and alleged overt act of accused 4 being of having instigated accused 1 and accused 2 to kill Jawahar and others, Court find it difficult to find any fault with the finding of trial Court of prosecution having failed to prove that all accused persons acted in furtherance of their common object of unlawful assembly and thus none of the accused can be convicted for the act of other accused persons as established by the evidence will be considered. Similarly the observations made by the trial Court in paragraph No. 72 of the judgment reveals that from evidence of PW 8 and PW 6 it is clear that accused 1 had assaulted PW 8 by sword on her head while from evidence of PW 10 it is clear that accused 1 had assaulted PW 10 by wooden plank on his leg while from evidence of PW 5 and PW 4, PW 7 along with evidence of other evidence it has become clear that evidence 2 had assaulted PW 5 by sword while from evidence of these witnesses it has become clear that accused 3 had assaulted PW 5 by stick on his head while from evidence of prosecution witnesses it has become clear that prosecution could not examine Medical Officer who had examined these injured witnesses. Hence nature of injuries received by them has not come on record. There is no other evidence on record if injuries received by them were grievous in nature and were sufficient to cause their death. Hence it cannot be considered that these injuries caused with intention to kill them. However prosecution proved that accused 1 had assaulted PW 8 and PW 10 and accused 2 had assaulted PW 5 by sharp weapon and accused 3 had assaulted PW 5 by dangerous weapon like stick. Hence prosecution proved offence punishable under Section 324 of Indian Penal Code against accused Maroti, Vinod and Om Gadmade. All the said observations made by the trial Court being again in conformity with the evidence narrated hereinabove, Court are unable to find any fault with the same.

       Now considering remaining question regarding sentence awarded by the trial Court, in light of the submissions canvassed by the rival parties Court are unable to find any fault with the sentences awarded to the accused Nos. 1 to 3 except death sentence awarded to accused 1, on the counts for which they are found guilty and convicted by the trial Court as the same has been awarded in accordance with the principles behind sentence the accused i.e. the same should be in accordance with the severity of the offence committed and sufficient to remove the element of criminality in him which has led to the commission of the relevant offence. Needless to add hence the same would not warrant any interference on Court’s part except death sentence awarded to accused 1.

       Now in the light of aforesaid guidelines considering all the circumstances relevant to offence of murders committed by accused 1 for which he has been awarded sentence of death by trial Court, after considering all the relevant facts Court are of considering opinion that the case cannot be said to be of rarest of rare nature warranting penalty of death. Court are of such a opinion as the facts established by the evidence though reveals that in the incident four persons were killed and four injuries still the manner in which the incident had occurred makes it abundantly clear that though the incident had created terror in the said Village hardly and evidence has surfaced on the record that crime was committed for the said purpose. On the contrary the evidence clearly indicates that incident had occurred in view of accused 1 and accused 2 were suspecting illicit relations of Pushpa Daughter of accused 1 and sister of accused 2 with Sunil Jawalkar who was undisputedly a married person. Thus the crime committed has definitely a shade of resentment in the minds of father and brother of honour of daughter/sister being put at a stake due to the activity of deceased Sunil. The same also reveals that the episode had not commenced by act committed by accused 1 as apparently first part of incident commenced at Pola Festival since accused 2 had commenced attack upon Sunil. It is further clear that though accused 1 also have been to the said place, he was not then armed. It is indeed true that apart from Sunil three more persons were killed and four more injured during the episode, however, hardly any evidence has surfaced at the trial that since the commencement of the incident main accused 1 and accused 2 had planned to attack the said other persons. On the contrary taking over all account of the incident occurred as revealed form the evidence which is recited hereinabove it is crystal clear that the other persons were assaulted due to their intervention for stopping/preventing and/or persuading accused 1 and/or accused 2 for not continuing their mission to assault Sunil Jawalkar. The same thus give an impression that the said acts had an impact upon the minds of accused 1 of being an obstacle in completion of mission which was commenced by accused 2 in retaliation of the act of destroying honour of his sister and daughter of accused 1. Without unnecessarily making reference to the number of cases it can be safely said that it has been repeatedly ruled by the Apex Court in number of cases that the number of persons being assaulted and/or killed and/or number of injuries being caused by itself will not be a factor making the case as rarest of rare. Having regard to the same and having regard to the age of accused 1, act committed by him being nor for the purposes of having any material gain and the time at which the same was committed being also indicative of the same being not a pre-planned but occurred under the impulse of moment in view of the aforesaid guidelines, Court are unable to approve and/or confirm penalty of death awarded by trial Court to accused 1.

        However still considering the manner in which the murder were committed by accused 1, the same exhibits the extent of element of criminality of accused 1, Court are of the opinion that sentence of imprisonment of life with a direction not to release him before completing actual term of 20 years including the period already undergone in addition to the other sentences imposed by the trial Court would be adequate punishment on the basis of principle explained by this Court after considering the decisions of the Apex Court regarding giving of such a directions for serving ends of justice i.e. in the case of decision of this Court in the case of Dipak v. State of Maharashtra, reported in 2006 BCI 79 (AB) : 2006 All MR (Cri) 686 to which one of Court A.P. Lavande, J, was party.

       In the premises aforesaid, the reference made by trial Court for confirmation of death penalty stands rejected. Criminal Appeal No. 633/2008 preferred by accused 1 stands partly allowed to the extent of aforesaid modification while Criminal Appeal No. 102/2009 preferred by accused 2 against conviction and sentences levied upon him and Criminal Appeal No. 89/2009 preferred by State against the order of acquittal recorded for concerned offences against accused 3 to accused 5 stands dismissed.