JAWAHAR PUNEKAR Vs STATE OF MAHRASHTRA
Bench: H.L. DATTU,CHANDRAMAULI KR. PRASAD
Case number: Crl.A. No.-001040-001040 / 2008
Diary number: 11767 / 2006
Advocates: S. RAJAPPA Vs
ASHA GOPALAN NAIR
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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1040 OF 2008
JAWAHAR PUNEKAR & ORS. Appellants
VERSUS
STATE OF MAHARASHTRA Respondent
O R D E R
1. This appeal is directed against the judgment and order
passed by the High Court of Judicature at Bombay, Nagpur
Bench in Criminal Appeal No. 238 of 1999, dated 06.03.2006.
By the impugned judgment and order, the High Court has
confirmed the order of conviction and sentence passed by the
learned Additional Sessions Judge, Wardha in Sessions Trial
No. 152 of 1997, dated 20.08.1999.
2. There are six accused persons, namely Jawahar Punekar (A1),
Chhotu Punekar (A2), Santosh Punekar (A3), Bandu Punekar
(A4), Pannalal Punekar (A5) and Smt. Lilabai Punekar (A6),
belonging to the same family, before us, as appellants in
this appeal. All these appellants question the conviction
and sentence awarded by the Trial Court and subsequently
confirmed by the High Court.
3. The appellants were tried by the Trial Court on a charge
that on 08.02.1997 approximately at 08:40 p.m. at
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Hawaldarpura, Wardha, they had formed an unlawful assembly
with the common object of murdering one Abdul Jakir Faruki
(“the deceased” for short) and committed offence punishable
under Sections 147, 148, 506, 302 read with Section 149 of
the Indian Penal Code (“the IPC” for short).
4. The Trial Court, vide judgment and order dated 20.08.1999,
convicted the appellants for the offences punishable under
Section 302 read with Section 149 of the IPC and sentenced
them to imprisonment for life.
5. Being aggrieved by the aforesaid conviction and sentence
passed by the Trial Court, the appellants had appealed
before the High Court. The High Court, after re-appreciating
and analyzing the entire evidence on record, arrived at the
conclusion that the Trial Court is justified in convicting
the appellants for the offences under Section 302 read with
Section 149 of the IPC reasoning that the very fact that the
appellants on date of the incident had accosted the
deceased, forming an unlawful assembly wherein A1 and A2
were armed with deadly weapons like sword and gupti (sword
stick), A3 and A4 were assisting them by assaulting the
deceased with fists, slaps and stones while A5 and A6 were
instigating them not to spare the deceased, speaks volumes
of their common object in intentionally causing the brutal
injuries resulting in his death on the spot. It is that
order which is called in question by the appellants in this
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appeal.
6. We have heard Shri. Rabin Majumdar, learned counsel for the
appellants and Shri. Sushil Karanjkar, learned counsel for
the respondent-State. We have also perused the evidence of
the eye witnesses, namely, Mr. Kamalkishor (PW-1),
Mr.Jugalkishor (PW-2), Mr. Lakhan (PW-3), Ms. Rafika (PW-4)
and also looked into the report of the Medical Officer (PW-
13).
7. The Trial Court and the High Court, after due appreciation
and re-appreciation of evidence on record, respectively,
have come to the conclusion that the death of the deceased
is homicidal. Having perused the report of PW-13, wherein
the 31 injuries caused to the deceased are enumerated along
with possible attribution of each injury towards his death,
we concur with the above conclusion reached by the Courts
below. This aspect of the matter is not in doubt in this
appeal.
8. Sri Majumdar would submit that the statements of the
aforesaid eye-witnesses raise suspicion and cannot be relied
upon to convict A1 to A4 of the aforesaid offence as the
statements so made are “parrot-like” carry the element of
fabrication. He would also submit that A5 and A6 could not
have been charged of the aforesaid offence since their
presence itself at the time of incident is doubtful.
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9. Analyzing the first submission regarding the veracity of the
statements of the eye-witnesses with respect to the offence
committed by A1 to A4, we find from the evidence that the
said witnesses have narrated the incident in the sequence it
occurred and corroborate each other. In their cross-
examination, nothing has been brought on record to indicate
that the said accused were not present at the scene of
incident or have been falsely implicated. A concurrent
reading of their evidence clearly depicts as to what
transpired on the fateful day of the incident. Their
statements are univocal and complete the jigsaw to bring out
a neat picture of the incident.
10. The only question which survives is that why the
statements of the said eye-witnesses should be disbelieved.
The perusal of evidence on record indicates that no other
theory of commission of offence could possibly be attributed
but for the one presented by the prosecution and accepted by
the Courts below. Also, the question of surmises or
conjectures cannot be drawn as neither the statements nor
the cross-examination of the eye-witnesses indicate anything
but the truth of the prosecution story in respect of the
offence committed by A1 to A4. The evidence of eye-
witnesses, therefore, is of sterling quality and thus cannot
be disbelieved.
11. In our view, the roles attributed to A5 and A6
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during the commission of offence need to be re-considered
and the evidence on record, therefore, has to be re-
appreciated in their context. PW-1, who is also the author
of the First Information Report, in his evidence has stated
that A5 and A6 were instigating A1 to A4 to assault the
deceased. This instigation by A5 and A6 was after the crime
was committed by A1 to A4. To the same effect is the
evidence of PW-2, who is the brother of PW-1.
12. However, PW-3, who at the relevant time was
accompanying the deceased, in his evidence has stated that
A5 and A6 reached the spot of the incident subsequently and
not when A1 to A4 were assaulting the deceased. In the
cross-examination also he sticks to that statement. PW-4,
mother of the deceased, in her evidence has not stated
anything with regard to the presence of A5 and A6. PW-6,
who is also an eye-witness to the incident and nephew of the
deceased, also does not mention the presence of A5 and A6
when A1 to A4 were assaulting the deceased. In our view,
the presence of A5 and A6, therefore, at the time of the
incident is doubtful and thus the benefit of doubt requires
to be extended to them.
13. Since we have doubted the presence of A5 and A6 in
the commission of offence, the charge against A1 to A4
requires to be modified from Section 302 read with Section
149 of the IPC to that of an offence under Section 302 read
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with Section 34 of the IPC. It must be pointed out that the
evidence on record makes it abundantly clear that the common
object of the unlawful assembly so formed was intentionally
to cause the death of the deceased. This Court in Bhagwan
Baksh Singh v. State of U.P., Cr. A. No. 37 of 1957, decided
on 18.08.1958, had upheld the conversion of conviction under
Sections 302 read with 149 to Sections 302 read with 34 of
the IPC in similar set of circumstances, i.e., benefit of
doubt being given to seven out of ten accused persons and
intention in commission of offence being clearly made out in
the charge-sheet. Therefore, A1 to A4 had ample notice of
the charge of common intention. In the light of benefit of
doubt extended to A5 and A6, the conviction of A1 to A4 is
modified to Section 302 read with Section 34 of the IPC.
14. In the result, we partly allow this appeal and
sustain the conviction and sentence of A1 to A4. We are
informed that A3 to A6 are already on bail. Therefore, A5
and A6 are discharged of their bail bonds. Since we have
confirmed the judgment of the Trial Court, as upheld by the
High Court, insofar as A1 to A4 are concerned, A3 and A4
shall surrender before the respondent authorities forthwith
to serve out the remaining part of their sentence.
Ordered accordingly.
........................J. (H.L. DATTU)
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........................J. (CHANDRAMAULI KR. PRASAD)
NEW DELHI DECEMBER 05, 2012