REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO.   902   OF 2007

TUKARAM & ORS. ..  APPELLANT(S)

vs.

STATE OF MAHARASHTRA ..  RESPONDENT(S)

WITH

CRIMINAL  APPEAL  NO. 1195  OF 2007

WITH

CRIMINAL  APPEAL  NO.  615 OF  2011

(Arising out of SLP(Crl.)No. 1935 of 2011)

O R D E R

As per the prosecution story the appellants  and the  

complainant party constituted two different groups in an  

organization called the Dalit Mukti Sena. It appears that  

both groups had been invited to the  marriage of one Anil  

Janjale on the 22nd May, 1995 which was performed at the  

Shishu   Mandir  near  the  Railway  Hospital.   After  the

marriage the deceased Prakash was returning to his home  

along with his friends Pradeep, Nana Mahajan (PW.2) and  

others at about 11.00 p.m.  As they came near the Hindi  

Church all the accused followed them. Bhagwan Salve, since  

deceased,   and  A.6  Jagan  Sonawane  were  armed  with  iron  

rods.  Bhagwan Salve caught hold  of the shirt of the  

deceased whereupon the other accused assaulted him and hit  

him by giving fist blows whereas A.5 Raju Suryawanshi who  

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was armed with a knife dealt a blow on the left buttock and  

Bhagwan Salve and A.6 Jagan Sonawane hit him with iron rods  

on  the  back  and  stomach.   The  deceased  who  was  then  

grievously injured was taken to the Railway Hospital where

PW.10 - Dr. Gangurde examined him and admitted him into the  

Surgical  Ward.  His  statement  was  recorded  by  PW.12-

P.I.Panwar and a case under Sections 147, 148, 324, 504 and  

506 r/w 149 of the IPC was registered.   

On  the  admission  of  the  deceased,  Dr.  Gangurde  

summoned  Dr.  Dhakate   (PW.11)  a  Surgeon,  who  found  an  

injury on the buttocks which was stitched up  the very same  

evening.  On the 24th, however, the patient developed signs  

of  internal  bleeding  and  it  was  decided  to  perform  an  

operation.  On opening  the stomach it was found at that  

stage  that  the  intestines  had  been  perforated  at  the  

jejunum,  the  spleen  too  was  ruptured  and  there  was  an  

omental tear causing bleeding from the veins and about 100  

c.c. foul smelling liquid was also found in the peritonial  

cavity which was suctioned out. The Spleen was also removed  

and the bleeding areas  were ligatured. On the 5th June,

1995 faecal matter was seen coming out from the stomach  

which  led  to  the  bursting  of   the  abdomen  and  as  a  

consequence thereof a second operation was performed on the  

6th June, 1995 and  it was at that stage noticed that the  

buttock  injury  was  8.5  cms.   deep  and  that  a  finger  

inserted from the rectum could meet a finger inserted into  

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the  perforation  on  the  buttocks.  Consequent   to   this  

development the patient developed septicemia and pneumonia  

and died on the 9th June, 1995 at about 2.00 p.m.   A case  

under Section 302 was registered against the accused. On  

the  completion  of  the  investigation  they  were  brought  

to trial inter alia under Sections  147, 148 and 302/149 of  

the IPC.  The Trial Court relying on  the eye witnesses

account and the medical evidence convicted the accused for  

offences punishable under Sections 302/149 etc. of the IPC  

and sentenced them to various terms of imprisonment. An  

appeal was, thereafter, taken to the High Court and the  

High Court, has, while confirming the conviction, modified  

the sentence to one under Section 304 (I) read with Section  

149 of the IPC and maintained the sentences and conviction  

under the other provisions of the IPC.  In doing so the  

High Court opined that there was no intention on the part  

of the accused to cause death and the injury that they had  

caused could be said to be likely to cause death.  It is in  

this situation the matter is now before us.

As already indicated above, a very limited relief  

can be granted to the accused in this matter. We find from  

the reading of the medical evidence that PW.11 Dr. Dhakate  

at the very initial stage did not realize the gravity of

the situation as he had seen  only one injury on the person  

of  the  deceased  which  was  the  external  injury  on  the  

buttocks as he  did not even look at the possibility that  

some  internal  injuries  too  could  have  been  caused  

considering the manner of the attack.

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This comes out from the evidence of the doctors PWs.10 and  

11.  It is true that the Doctors  have  tried to cover up  

their  indifference  and  negligence  by  deposing  that  the  

death  could  be  attributed  to  the  injury  caused  to  the  

abdominal organs but we are of the opinion that had the  

Doctors been a little vigilant during the 20 days  that the  

deceased stood admitted to  the hospital the possibility  

that he could have been saved cannot be ruled out.  In this  

view of the matter we find that the accused are liable for

conviction for an offence  under Section 326/149 of the IPC  

instead  of  Section  304(I)  read  with  Section  149  of  the  

I.P.C.   

The learned counsel for the State has however argued  

that  it  was  clear  from  the  medical  evidence  that  the  

injuries had been caused not only by the fist blows but by  

the beating with the iron rods as well.  It has admittedly  

been so stated  by the eye witnesses but their depositions  

are not supported by the medical reports which reflect only  

an  injury on the buttocks.   

We are also told that as of today accused Nos. 1-4  

who had given fist blow have under gone one year and 10  

months of the sentence whereas A.5 who is said to have  

caused the knife injury has undergone three years and 20  

days of the sentence whereas A.6, one of those who had  

caused an injury with an iron rod has undergone 2 years 11

months. We therefore feel that the ends of justice would be  

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met if the sentence of all the accused is reduced to the  

period already undergone.  

The accused are accordingly held to be liable under  

Section 326/34 of the I.P.C. Their sentence is reduced to  

that  already  undergone.  The  appeals  are  disposed  of  

accordingly.

                   .................J.         (HARJIT SINGH BEDI)

                                         ....................J.

                                 (CHANDRAMAULI KR. PRASAD)

New Delhi, February 24, 2011.