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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE, K.K. SONAWANE, JJ.
Dnyanoba Baburao Pandhare - Appellant
Versus
The State of Maharashtra - Respondents
Criminal Appeal No. 228 of 2013
Decided On : 05-01-2017
After taking into consideration the totality of the circumstances on record, it reveals that the appellants had the common intention to assault victim `T` and his family members. But, intention to commit murder appears to have been developed on the spot and it may not be result of per-arranged plan or pre-meetings of minds. Therefore, it would hazardous to believe that appellant had shared the common intention of husband accused `D` to kill victim `T`. Her criminal act during the alleged incident would not liable to be considered to fasten liability of murder of `T` with the aid of Section 34 of Indian Penal Code. Admittedly, appellant `L` shared the common intention of her husband to attack victim `T` and his family members and to cause hurt to them. But, the circumstances did not permit to draw adverse inference against appellant `L`, for commission of murder of victim `T` with the aid of Section 34 of Indian Penal Code. Court reiterates that, in the instant case, the appellant `L` cannot be held guilty on the principle of joint liability for the criminal acts done by her husband `D` for murder of victim `T`. The liability of appellant `L` for offence committed by her husband cannot be considered at par with the criminal liability of her husband accused `D`. The evidence of PW 2 and PW 3 established the assault on victim `T` by appellant `D` and appellant `L` attacked PW 2 with kick and fists. In such peculiar circumstances, that the conviction of `L` under Section 323 read with 34 of Indian Penal Code is sustainable instead of offence punishable under Section 302 read with 34 of Indian Penal Code. Court, therefore, confirms the conviction of appellant `L` under Section 323 read with 34 of Indian Penal Code and proceeds to modify the sentence awarded to her.
Indian Penal Code, 1860 - Sections 302, 323, 324 and 34-Conviction for murder.-Since accused assaulted victim-deceased by lethal weapon brutally with intention to kill him hence his conviction under Section 302, IPC justified.
Indian Penal Code, 1860 - Section 300-Offence of murder.-Since medical evidence showed injury caused by lethal weapon like knife hence death of deceased homicidal in nature can be inferred.
The overall analysis of evidence of Medical Experts demonstrates that the victim `T` received the fatal injuries on his abdomen by lethal weapon like knife and while medical treatment in the hospital, he succumbed to the injuries. In the aftermath, no hesitation to draw the inference that the death of victim `T` was not accidental but homicidal in nature.
Indian Penal Code, 1860 - Section 302-Conviction for murder.-Since evidence of eye-witnesses, wife and daughter of deceased, cogent, consistent, credible and corroborated by medical evidence hence conviction based on such evidence of related witnesses justified.
In the light of above principles, Court does not find any impediment to accept the evidence of eye-witnesses PW 2 and PW 3 in this case. That their evidence is cogent, credible and inspire confidence. The medical evidence brought on record also strengthened the version of these eye-witnesses. There are no material discrepancies and contradictions to affect the credibility and trustworthiness of these witnesses. As discussed above, it is proved that the appellant/Dnyanoba was the author of the fatal injuries received to victim `T` on his stomach. The accused `D` dealt multiple blows of lethal weapon in brutal manner and inflicted fatal injuries to victim `T` on vital part of the body. The number of blows by dangerous weapon and nature of injury inflicted to victim `T` shows the intention of appellant `D` to kill victim `T` to take umbrage of family dispute on account of partition of agricultural land. The findings expressed by the trial Court in regard to offence of murder under Section 302 against accused `D` appears sustainable and appreciable one. Therefore, Court is not prepared to cause any interference in the impugned judgment and order of conviction and sentence, under Section 302 of Indian Penal Code, so far as accused `D` is concerned. The conviction of appellant `D` for the offence of murder of `T` under Section 302 is hereby confirmed. Obviously, the sentence of life imprisonment awarded to the appellant `D` needs no interference.
K.K. SONAWANE, J.
1. The Appellants, taking exception to the judgment and order of conviction under Section 302, 323, 324 r/w. 34 of I.P.C. and resultant sentence of imprisonment for life and to pay fine of Rs. 2,000/- each, in default, R.I. for one month, preferred the present appeal to redress their grievances. The learned trial court also held both the accused guilty for the offence punishable under Sections 323 and 324 of I.P.C. However, the trial court did not award separate sentence being a lesser offences.
2. The factual matrix giving rise to the prosecution of the appellants in this case, in brief, is as under :-
That, the ill-fated victim Tukaram Baburao Pandhare r/o. Babhalgaon, Taluka Ambejogai, Dist. Beed is the husband of PW-3 Shobha and father of PW-2 Janabai Pandhare. Accused Dnyanoba and Lilawatibai are the husband and wife, resident of same village Babhalgaon, Taluka Ambejogai. The Victim Tukaram was the real brother of accused Dnyanoba and both were eking livelihood by doing agricultural labour work. The relations in between the family of the victim Tukaram and accused Dnyanoba were strain on account of partition of joint family property.
On the fateful day of incident, i.e. on 2.1.2009, in the noon hours, victim Tukaram, and his daughter PW-2 Janabai were at home. The wife Shobhabai had been to fetch water, unaware of the tragic end of her husband Tukaram on that day. There was a vacant plot of accused Dnyanoba abutting to the dilapidated mud house of victim Tukaram. The common wall in between the mud house of victim Tukaram and vacant plot of accused Dnyanoba was collapsed and its bricks were lying nearby it. According to prosecution, at about 2.00 p.m. accused Dnyanoba and his wife accused Lilawati arrived in bullock cart at the house of victim Tukaram. The accused started collecting the bricks. The victim Tukaram and his daughter PW-2 Janabai raised objection for taking away the bricks without counting it. The accused Dnyanoba became furious and hurled abuses to both, victim Tukaram and his daughter Janabai. There was endeavour to give understanding to the accused Dnyanoba but he was not in a mood to listen. The accused Dnyanoba took out the weapon – knife ( Barcha ) and dealt a blows of weapon at the abdomen, thigh, limbs etc. of the victim Tukaram. Shobha – wife of Tukaram also rushed to the spot after hearing the cries. The PW-2 Janabai made endeavour to intervene in the scuffle, but accused Lilabai prevented and pushed her down on the ground. The accused Lilawati picked up heir and beaten up Janabai with kicks and fists. The accused No.1 Dnyanoba also assaulted Janabai with knife on her left forearm. The victim Tukaram and daughter Janabai received bleeding injuries. They yelled for help. The onlookers thronged at the spot. The victim Tukaram and Janabai were escorted to the hospital at Ambejogai. The Medical experts attended the victim Tukaram and got him admitted for medical treatment. Since beginning, victim Tukaram was in unconscious condition. PW-2 Janabai was also hospitalized for medical treatment of her bleeding injuries at forearm.
Meanwhile, police personnel of Bardapur police station, received information about the occurrence of incident of assault on victim Tukaram and his daughter and they were taken to Government Hospital at Ambajogai for Medical treatment. The police of Bardapur Police Station immediately rushed to Government Hospital Ambejogai to take stock of situation. It was informed to the Police that victim Tukaram is admitted in ICU and he is in unconscious condition. The police personnel reduced into writing the statement of injured Janabai. She verbalized about the incident of assault and blamed the accused for the injuries sustained to herself and her father Tukaram. In view of nature of allegations, the concerned P.S.O. registered the Crime NO. 3 of 2009 under Sections 307, 234, 504, 506 r/w. 34 of IPC and set the investigation in motion. The I.O. recorded statement of w
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