BALU S/O ONKAR PUND Vs THE STATE OF MAHARASHTRA
Bench: DIPAK MISRA,ABHAY MANOHAR SAPRE
Case number: Crl.A. No.-000175-000175 / 2015
Diary number: 27823 / 2014
Advocates: SUDHANSHU S. CHOUDHARI Vs
Page 1
Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 175 OF 2015 (ARISING OUT OF SLP(Crl.) No.8715/2014)
Balu S/o Onkar Pund & Others Appellant(s)
VERSUS
The State of Maharashtra Respondent(s)
WITH
CRIMINAL APPEAL Nos.166-167 OF 2015 (ARISING OUT OF SLP(Crl.) Nos.10109-10110/2014)
AND CRIMINAL APPEAL Nos.164-165 OF 2015 (ARISING OUT OF SLP(Crl.) Nos.9524-9525/2014)
J U D G M E N T
Abhay Manohar Sapre, J.
1. These appeals are filed by the accused
persons against the judgment and order dated
1
Page 2
03.02.2014 passed by the High Court of
Judicature at Bombay, Bench at Aurangabad in
Criminal Appeal Nos. 215 and 225 of 2011 which
arise out of judgment/order dated 11.04.2011
passed by the Sessions Judge, Parbhani in
Sessions Trial No.80 of 2008.
2. Accused Nos. 5, 8, 9 & 10 have filed appeal @
SLP(Crl.) No. 8715 of 2014 whereas appeals @
SLP(Crl.) Nos.10109-10110/2014 are filed by
accused Nos.1 and 4 and appeals @ SLP(Crl.) Nos.
9524-9525/2014 are filed by accused Nos. 2, 3 and
6.
3. By impugned judgment, the High Court
confirmed the conviction and sentences awarded
to the appellants by the learned trial Judge.
Suffice it to state here that the appellants, apart
from other offences were convicted under Section
302 read with Section 149 of the IPC and
2
Page 3
sentenced to suffer life imprisonment and to pay
fine of Rs.10,000/- each, in default of payment of
fine, to undergo further six months rigorous
imprisonment. The sentences imposed in respect
of other offences are of below 7 years and all the
sentences have been directed to run concurrently.
4. The question, regard being had to the
submissions advanced by the learned counsel for
the appellants, is whether the learned trial Judge
as well as the High Court was justified in
convicting the appellants under Section 302 read
with Section 149 IPC considering the genesis of
occurrence and the facts in entirety or they should
have been convicted under Section 304 Part-I, IPC.
5. In order to appreciate the issue involved in
these appeals, it is necessary to state the relevant
facts in brief.
6. Apparao Rajaram Pund (A-1) and Madhavrao
3
Page 4
Rangnathrao Range (PW- 3), both resident of
village Itlapur in District Parbhani, were good
friends. Both were agriculturists. Savitribai-the
deceased was the wife of Madhavrao Range.
Around 25-30 years back, Madhavarao had
purchased two kathas of land from Apparao for his
cattle shed in the same village and he was also
placed in its possession. However, no sale deed
was executed between them yet Madhavrao
continued to remain in possession of cattle shed
all through.
7. In course of time, both entered in politics and
formed their respective panels to contest the
elections for the post of Sarpanch of the village. In
the election, panel led by Madhavrao Range won
whereas panel led by Apparao Pund lost. Due to
this event, the relations between them were not as
cordial as they used to be in the past. Thereafter
4
Page 5
Apparao started pressurizing Madhavrao Range to
vacate the land and hand over the possession of
cattle shed else he was threatened to face the dire
consequences.
8. On 15.01.2008, the appellants around 7.30 to
8.00 A.M. armed with weapons barged in the cattle
shed and started removing the iron sheets fixed
on the roof. Madhavrao requested the appellants
not to remove the sheets. Since the appellants did
not listen to Madhavrao and continued in their
operation in removing the sheets, Madhavrao
resisted and made attempt to stop them. At that
time, Savitribai and Madhavrao's son - Udhav (PW
-5), who were also present on the spot, intervened
and resisted the appellants from removing the
sheets. This led to scuffle between Apparao ( A-1),
Sachin-( A-4), Achyut (A-3) and Madhavrao (PW-3).
Accused Nos. 1, 3 and 4 beat Madhavrao with fist
5
Page 6
blows and leg kicks and threw him out of cattle
shed. Apparao(A-1), who was having bottle
containing kerosene, poured the entire kerosene
on cattle shed and Sachin ( A-4) set the cattle
shed on fire. Savitribai, who was resisting the
appellants, caught in contact of fire and received
severe burn injuries. On noticing this, Madhavrao
tried to enter in cattle shed to save his wife-
Savitribai. Gopal (A-2) then inflicted an axe blow
on Madhavrao’s head due to which he sustained
bleeding injury. When Madhavrao cried for help,
Navnath and other persons reached there and
tried to extinguish the fire. Thereafter they
wrapped Savitribai in a piece of cloth and took her
to the civil hospital around 10 A.M.
9. In the meantime, Mohammad Bashir Sheikh
Umar (PW-2)- Inspector on duty to the Nanal Peth
Police Station, got an information that a lady with
6
Page 7
burn injuries was admitted to the Hospital.
Therefore, he rushed to the hospital to record her
statement. After getting certification from the
doctors that Savitribai was in a fit condition to give
her statement, PW-2 recorded her statement (Ex-
45). In the meantime, Kishore Achyut Deshmukh
(PW-1), In-charge Tahsildar of the area also
reached to the hospital and recorded the
statement of Savitribai (Ex-P-42).
10. Annasahab Gholap - Assistant Police
Inspector (PW-16) then registered the crime being
Crime No. 6 of 2008 and started investigation. On
the same day, five accused were arrested,
panchnama (Ex-P-58) was prepared and several
articles were recovered from the spot. On
16.01.2008 at 6.15 a.m., Savitribai succumbed to
her injuries while in the Hospital. This led to arrest
of some other accused persons and also led to
7
Page 8
registration of case of offence punishable under
Section 302 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC”) along with other
offences punishable under Sections 147, 148, 323,
324, 436, 440, 448, 506 all read with Section 149
IPC against the appellants and other accused
persons. The case was then committed to Sessions
for trial. The accused abjured their guilt and
claimed trial. The prosecution examined 16
witnesses. The statements of the accused persons
were recorded under Section 313 of the Code of
Criminal Procedure, 1973.
11. The Sessions judge convicted the appellants-
accused and imposed punishment to each
appellant as specified above. Challenging the said
order, the appellants filed appeals in the High
Court against their conviction. The High Court, by
impugned judgment, dismissed their appeals and
8
Page 9
confirmed the conviction and sentence awarded
by the trial Court to each of the appellants.
Against the said order, the appellants have
preferred these appeals by way of special leave
before this Court.
12. While assailing the legality and correctness of
the impugned order, Mr. Sudhanshu S. Choudhari,
learned Counsel for the appellants has argued only
one point. According to him, taking the
prosecution case on its face value, it was not a
case of murder of Savitribai so as to enable the
Courts to convict the appellants under Section 302
IPC but it was a case falling under Section 304
Part-I IPC. Learned counsel pointed out that there
was neither any intention on the part of any of the
appellants to commit the murder of Savitribai nor
the appellants had visited the spot with any such
intention. Learned Counsel further pointed out that
9
Page 10
the only intention of the appellants was to take
possession of the cattle shed and it was in process
of taking forcible possession, the sudden fight
ensued between the two groups as also cattle
shed caught fire causing burn injuries to Savitribai,
which unfortunately resulted in her death. It was
also pointed out that if the appellants had come to
the spot with an intention to eliminate Savitribai,
they or any member of their group would have in
the first instance targeted Savitribai, who was
present on the spot with her husband (PW-3) and
inflicted injury. It was not done. According to
learned Counsel, her death was as a result of burn
injuries because she was inside the shed, which
caught fire. Therefore, learned Counsel urged that
this Court should alter the sentence to that of the
one punishable under Section 304 Part-I IPC
instead of under Section 302 IPC because it was
10
Page 11
not a case of murder but it was a case of culpable
homicide not amounting to murder.
13. Per contra, learned Counsel for the
respondent supported the impugned order and
urged that two courts have rightly held the
appellants guilty for committing murder of
Savitribai and hence the appeals merit dismissal
calling no interference.
14. Having heard the learned Counsel for the
parties and on perusal of the record of the case,
we find force in the submission of the learned
Counsel for the appellants.
15. Before we examine the factual matrix of the
case in hand, it is apposite to take note of the law
laid down by this Court on the question as to when
culpable homicide is a murder under Section 300
“thirdly” and what are the elements which the
prosecution should establish. This Court in Virsa
11
Page 12
Singh v. State of Punjab, 1958 SCR 1495,
examined this issue in detail.
16. The learned Judge Vivian Bose in his
distinctive style of writing and speaking for the
Court succinctly stated as under:
“13. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that “twelve good men and true” could readily appreciate and understand. 14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 “thirdly”; 15. First, it must establish, quite
12
Page 13
objectively, that a bodily injury is present; 16. Secondly, the nature of the injury must be proved; These are purely objective investigations. 17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. 18. Once these three elements are proved to be present, the enquiry proceeds further and, 19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a
13
Page 14
licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.”
17. Relying on the aforesaid principle of law,
recently this Court in Pulicherla Nagaraju @
Nagaraja Reddy Vs. State of Andhra Pradesh
(2006)11 SCC 444, again examined the issue as to
what relevant factors should be kept in
consideration while deciding the question as to
whether case in hand falls under Section 302 or
304 Part-I or Part-II. Justice Raveendran speaking
for the Court held in para 29 as under:
“29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters — plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group
14
Page 15
clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is,
15
Page 16
of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.”
18. Applying the aforesaid principle of law to the
facts of the case in hand and keeping the same in
consideration when we examine the evidence of
the prosecution, we find that this is a case where
the appellants should have been convicted for the
offence punishable under Section 304 Part-I
instead of Section 302 IPC.
19. It is for the reason that firstly, neither there
was any motive and nor any intention on the part
of any of the appellants to eliminate Savitribai.
Secondly, there was no enmity of any kind with
Savitribai in person with any of the appellants.
Thirdly, the appellants had gone there to take
possession of the cattle shed and not with an
intention to kill any member of the family of
Madhavrao Renge. Fourthly, if at all, if there was
16
Page 17
some kind of animosity or jealousy then it was
towards A-1 whose panel had won the election.
Savitribai had nothing to do with election because
she never contested the election. Fifthly, despite
the appellants armed with weapons, none of them
inflicted any injury or gave blow to Savitribai but
single blow was inflicted only on Madhavrao, who
fortunately survived. Sixthly, Savitribai died due to
sustaining of burn injuries, which she suffered
because the appellants ablazed the cattle shed by
pouring kerosene on it. In other words, if the
appellants had not ablazed the cattle shed then
the incident of death of Savitribai would not have
occurred. Eighthly, it was a fight on a spur of
moment between the two male groups on the
issue of taking possession of cattle shed with no
intention to kill any one and lastly, in the absence
of any overt act attributed to any of the appellants
17
Page 18
towards Savitribai for inflicting any injury to her,
the appellants could not have been convicted for
an offence of committing murder of Savitribai so
as to attract the rigour of Section 302 IPC and
instead they should have been convicted for an
offence of culpable homicide not amounting to
murder under Section 304 Part I IPC.
20. In the light of foregoing discussion, we allow
the appeals in part. The appellants are accordingly
convicted for an offence punishable under Section
304 Part-I IPC instead of Section 302 IPC and each
of the appellants is hereby awarded 7 years RI.
21. So far as the conviction and sentence
awarded by the courts below under various other
sections, as specified above, are concerned, they
are upheld calling no interference. All the
sentences shall run concurrently.
….……...................................J. [DIPAK MISRA]
18
Page 19
……………..................................J.
[ABHAY MANOHAR SAPRE] New Delhi; February 2, 2015.
19