Kallu @ Kalyan
Atmaram Patil Vs. State of Maharashtra  INSC 1536 (10 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1443 OF 2008
[Arising out of S.L.P. (Crl.) No.566 of 2008] Kallu @ Kalyan Atmaram Patil
State of Maharashtra ..... Respondent
has filed this appeal against the judgment and order dated 23.02.2006 passed by
a Division Bench of the High Court of Judicature of Bombay, Bench at Aurangabad
in Criminal Appeal No.649/2004 confirming the conviction and 2 sentence of
imprisonment for life in respect of an offence punishable under Section 302 of
the Indian Penal Code [for short `IPC'] and a fine of Rs.500/- with a default
stipulation of imprisonment for six months awarded by the learned Additional
Sessions Judge, Amalner on 29.09.2004 in Sessions Case No.28/2000.
facts, which led to the trial of the appellant, are as follows:
Kallu @ Kalyan
Atmaram Patil, appellant herein, along with 16 others were tried for the
offences of rioting, murder of Shivaji Patil and causing grievous hurt to PW-12
Deepak on 31.12.1999 at about 7.47 p.m. The prosecution case was that on the
day of the incident at village Mhasave one Vimalbai Patil was elected as a
Sarpanch of the village. PW-12 Deepak Patil and his father Shivaji Patil were
the supporters of Vishwas Pahelwan, whereas the appellant and other accused
persons supported Vimalbai Patil. The prosecution alleged that the appellant
along with 20 to 25 more persons armed 3 with sticks and wooden rods proceeded
towards the house of PW-12 Deepak. They asked PW-12 as to why he canvassed for
the group of Vishwas Pahelwan in the Gram Panchayat Election. The accused
persons allegedly inflicted sticks blows on the head and forehead of PW-12
Deepak and also gave beating to Shivaji Patil, who was standing on the platform
of his house. The appellant alleged to have given stick blow on the head of
Shivaji Patil, who as a result thereof fell down and became unconscious. PW-13
Vithoba and PW-14 Sukdeo were also assaulted by the accused. On seeing the
co-villagers coming on the scene of occurrence, the accused persons went away.
Thereafter, PW-15 Arun Patil with the help of one Nimba and Vijay shifted PW-12
Deepak and his father Shivaji Patil to Cottage Hospital at Parola. After the
first-aid treatment, PW-12 lodged complaint [Ext. 152], on the basis of which
First Information Report bearing Crime No.210/1999 came to be registered
against 17 accused persons under Sections 307, 143, 147, 148, 149 and 452 of
IPC with the Parola Police Station. Shivaji Patil was shifted for medical
treatment to Civil Hospital, Dhule. On 01.01.2000, Shivaji 4 Patil succumbed
to the injuries. On his death, the offence came to be converted to under
Section 302 of IPC. In Civil Hospital at Dhule, Inquest panchnama [Ext. 118]
came to be recorded in the presence of panch witness Vishwas Patil.
Dr. Avinash Ruikar conducted autopsy on the dead body of Shivaji Patil and
noticed the following two external injuries:- "[i] C.L.W. on right front
parietal region 8.5 cm. x 1.4 cm. Scalp deep.
[ii] Abrasion on left
arm medially upper 1/3rd 3.8 x 0.2 cm."
Both the injuries
were found ante mortem. On internal examination, doctor noticed haemorrhage all
over the skull.
There was also a
crack fracture of left parietal bone. As per the post mortem notes [Ext. 212],
Dr. Avinash opined that the cause of death of the deceased Shivaji Patil was
due to head injury.
Jagatrao Patil, Police Constable, prepared Panchnama [Ext. 171] of the clothes
of the deceased.
5 Spot Panchnama
[Ext. 116] was recorded in the presence of PW-1 Hemant Patil. PW-22 P.I.
Mahajan arrested the accused persons on different dates. At the instance of the
appellant, sticks were discovered which were seized under Panchnama [Ext. 126].
The seized articles were sent to the Chemical Analyser. On receipt of the
reports of chemical analysis [Exts. 200 and 211], charge sheet was filed
against the appellant and 16 other accused persons in the Court of J.M.F.C. at
Parola, who committed the case to the Court of Additional Sessions Judge at
Amalner by order dated 31.03.2000.
trial court found a prima facie case against the appellant and other accused
persons under Sections 143, 147, 148, 452 and 302 read with Sections 149 and
324 read with Section 149 of IPC. All the accused pleaded not guilty to the
charges and claimed to be tried.
During trial of the
case, the prosecution examined as many as 23 witnesses. The accused persons in
their statements recorded under Section 313 of the Criminal 6 Procedure Code
pleaded that Pankaj Suryabhan Patil (accused No.7) was elected as Deputy
Sarpanch, so the prosecution witnesses belonging to opposite group were annoyed
and they had assaulted Suresh Suka, father of Ananda Suresh Patil (accused no.
1). The said incident was reported to the Police and crime was registered
against prosecution witnesses and because of political rivalry, the accused have
been falsely implicated in the case.
learned trial Judge, on analysis of the entire oral and documentary evidence on
record, held the appellant and five other accused persons guilty under Sections
148, 302, 325 read with Section 149 of IPC. They have been acquitted for the
offences under Sections 452, 504 read with Section 149 of IPC. Other accused
have been acquitted for all the charges.
aggrieved, the appellant and other accused persons filed three separate sets of
appeals before the High Court.
High Court acquitted the other accused for offence under Sections 148 and 302
read with Section 149 of IPC and convicted them for lesser offences. Criminal
Appeal No.649 of 2004 filed by the appellant was partly allowed to the extent
that his conviction under Sections 148, 325 read with Section 149 of IPC and
Section 302 read with Section 149 of IPC is set aside and instead he is
convicted under Section 302 IPC for murder of Shivaji Patil and aforesaid
sentence has been imposed upon him.
the appellant has filed this appeal by special leave questioning the
correctness and legality of the judgment of the High Court.
Court on 21.01.2008 issued notice to the respondent-State limited to the
question of sentence.
have heard Mr. Naresh Kumar, Advocate for the appellant, and Mr. Ravindra
Keshavrao Adsure, Advocate for the respondent-State and with their assistance
examined the material on record.
scrutiny of the oral evidence of PW-12 Deepak, it stands proved that the
appellant has inflicted single stick blow on the head of Shivaji Patil which
proved to be fatal. The second injury found on the person of the deceased by
Dr. Avinash was in the nature of abrasion on left arm. The other eyewitnesses
including the injured witnesses have not supported the prosecution case. The
evidence of PW-12 Deepak is not sufficient to establish that the appellant
inflicted fatal injury on the head of the deceased with an intention to cause
his death or with a knowledge that the injury so inflicted shall cause the
death of the deceased in the ordinary course of nature. It is also found from
the evidence of PW-12 that no other injury was caused by the appellant to the
deceased after he became unconscious. The ocular evidence of PW-12 Deepak
corroborated by the medical evidence, in our opinion, would prove that the
offence committed by the appellant fell under Section 304 Part-I of IPC and not
under Section 302 of IPC. We, accordingly, convict the appellant under Section
304 Part-I, IPC, for causing the death of Shivaji Patil and sentence him to
suffer 9 rigorous imprisonment for ten years and to pay a fine of Rs.500/-. In
default of payment of fine, the appellant shall undergo simple imprisonment for
the result, for the afore-said reasons, this appeal is partly allowed to the
extent of holding the appellant guilty of the offence punishable under Section
304 Part-I, IPC, and imposing the aforesaid sentence upon him. The judgment and
order of the High Court confirming the conviction of the appellant under
Section 302, IPC, and sentencing him to undergo imprisonment for life shall
stand modified to the extent indicated hereinabove.
(R. V. Raveendran)
(Lokeshwar Singh Panta)
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