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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