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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
Z.A. Haq, Amit B Borkar, JJ.
Devendra - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 568 of 2017, 237 of 2018, 637 of 2019
Decided On : 23-03-2021
Criminal Appeal - Conviction under Section 304 Part II of the Indian Penal Code - [Indian Penal Code, Section 304 Part II] - The court considered the evidence of six eye-witnesses and the medical evidence to conclude that the accused intentionally inflicted an axe blow fracturing the skull of the deceased, resulting in his death. The court found that the accused nos.1 and 3 also had a common intention to kill the deceased and convicted them under Section 302 read with Section 34 of the Indian Penal Code. The court set aside the conviction of the accused no.2 under Section 304 Part II and convicted him under Section 302 read with Section 34 of the Indian Penal Code. The appeals of the State and the Victim were allowed, and the appeal of the accused no.2 was dismissed. The accused nos.1 to 3 were granted six weeks to surrender.
Fact of the Case:
The case involved an incident where the accused, in furtherance of a common intention, assaulted the deceased with an axe, resulting in his death. The prosecution presented evidence from six eye-witnesses and medical evidence to establish the involvement of the accused in the crime.
Finding of the Court:
The court found that the accused no.2 intentionally inflicted an axe blow fracturing the skull of the deceased, resulting in his death. The court also found that the accused nos.1 and 3 had a common intention to kill the deceased and convicted them under Section 302 read with Section 34 of the Indian Penal Code. The court set aside the conviction of the accused no.2 under Section 304 Part II and convicted him under Section 302 read with Section 34 of the Indian Penal Code. The appeals of the State and the Victim were allowed, and the appeal of the accused no.2 was dismissed.
Issues: The main issue was whether the accused had the intention to cause death, as contemplated by Section 300 of the Indian Penal Code, and whether the accused nos.1 and 3 had a common intention to kill the deceased.
Ratio Decidendi: The court applied Section 34 of the Indian Penal Code to establish the common intention of the accused nos.1 and 3 to kill the deceased. The court also considered the medical evidence and the testimony of the eye-witnesses to establish the intention of the accused no.2 to cause death.
Final Decision: The court set aside the conviction of the accused no.2 under Section 304 Part II and convicted him under Section 302 read with Section 34 of the Indian Penal Code. The appeals of the State and the Victim were allowed, and the appeal of the accused no.2 was dismissed. The accused nos.1 to 3 were granted six weeks to surrender.
JUDGMENT
Amit B. Borkar, J. - Since all three appeals arise out of the same set of facts and the common judgment, we are disposing them of by common judgment.
2. Through these three appeals, the appellant in Criminal Appeal No.568/2017 challenges the judgment and order dated 25.10.2017 passed by the Sessions Judge, Yavatmal in Sessions Trial No.50 of 2016, whereby the appellant (accused no. 2) has been convicted and sentenced in the manner stated hereunder:
(i) Under Section 304 Part II of the Indian Penal Code, to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/-(Rs. Five Thousand), in default to suffer rigorous imprisonment for six months.
3. The Victim (injured eye-witness) has filed Criminal Appeal No.637/2019 challenging acquittal of the accused nos.1 and 3 for offence punishable under Section 302 of the Indian Penal Code and also conviction of accused no. 2 for lesser offence under section 304 II instead of section 302 of Indian Penal Code.
4. The State of Maharashtra has filed Criminal Appeal No.237/2018 challenging acquittal of the accused nos.1 and 3 for offence punishable under Section 302 of the Indian Penal Code and for conviction of the accused no.2 under Section 302 of the Indian Penal Code.
5. Shortly stated, the prosecution case runs as under:-
On 16.3.2016, Informant -Shobha Mahadev Gadge (PW 1) lodged report in Wadki Police Station alleging that when she had gone to her field for agricultural work at about 11.00 a.m. Laxmibai and Bebi (PW 10) were doing work of picking cotton in her field. Ambadas Dhurve (PW 9), Mahadeo Gadge and Swapnil Gadge (PW 6) were also working in the said agricultural land. One Amit Uge (PW 8) had also come to fetch water from well of that field. At that time, Pravin (deceased) had come there to look after his cow in the said field. All the accused alongwith labourers were cutting Babul trees on the common boundry of her field. At about 12.00 noon, Swapnil Gadge (PW 6) and Pravin (deceased) went to the spot where the work of cutting Babul trees was in progress. Swapnil (PW 6) told the accused no.1 not to cut Babul trees, as he had given report to Police Station. However, the accused no.2 gave two blows of axe on the head of Pravin and, therefore, Pravin sustained bleeding injury and fell down. When Swapnil (PW 6) tried to intervene, the accused no.1 caught him and the accused no.3 beat him with stick. Thereafter, all the accused ran towards village. When Shobha (PW 1) shouted for help, people working in nearby fields came there and took Pravin and Swapnil (PW 6) to hospital for treatment in bullock-cart.
6. On 16.3.2016, initially P.S.I. Ritesh Raut (PW 15) registered offence under Section 307 read with Section 34 of the Indian Penal Code, vide Crime No.49/2016. After the death of Pravin, offence under Section 307 of the Indian Penal Code was altered to Section 302 of the Indian Penal Code.
7. Shri Ritesh Raut, P.S.I. (PW 15) recorded statements of the accused and seizure panchanama was drawn in presence of panch witnesses. The Police also seized clothes of the accused and the deceased. Blood samples of the accused and the deceased were taken and sent to Chemical Analyst. The police also recorded inquest of dead body and got autopsy done to know the cause of death. After completion of the investigation, the police filed Charge-sheet in the Court of Judicial Magistrate First Class, Ralegaon. The case was thereafter committed to the Court of Sessions Judge, Yavatmal, as offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions.
8. The charges were framed against all the accused, which were explained to them in vernacular for which, they pleaded not guilty and claimed to be tried.
9. The learned Trial Judge believed the evidence adduced by the prosecution and convicted the accused no.2 in the manner stated in paragraph no.2 above and acquitted the accused nos.1 and 3. Hence, these three appeals.
10. In Criminal Appeal No.237/2018
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