& Ors. Vs. State of Maharashtra  INSC 1319 (29 July 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 212 OF 2008 NIVRUTTI & ORS. ..
This appeal arises out of the following facts:
May, 2004, the marriage of the daughter of one Bhausaheb, the brother of Ashok
PW.1, was to be solemnized in village Janephal, District Aurangabad. Ashok
PW.1, arranged a water tanker on the 6th May, 2004. As the tanker was being
taken towards Ashok's house the accused appellants, obstructed the way by
putting stones and thorny bushes. The accused also abused PW.12 Dada Saheb and
the deceased Nana Saheb.
reached the village at about 9.30 a.m. and was told by the deceased not to take
the tanker to his well, as planned as, the appellants had obstructed the
passage in that direction. The tanker was accordingly brought to its
destination by some other route by Nana Saheb. Nana Saheb and Ashok,
thereafter, went to police station Shioor for lodging a complaint with respect
to the behaviour of the appellants and while they were returning from the
police station they were waylaid by the appellants, Nivrutti armed -2- with an
iron rod and all the others with sticks. They also attacked Nanasaheb with their
weapons on which he became unconscious and fell to the ground. He was,
thereafter, removed to the hospital by some of the witnesses and an FIR was
lodged at Police Station Shioor. On the completion of the investigation the
appellants were brought to trial for offences punishable under Section 302 and
323 read with Section 34 of the IPC and were sentenced to undergo life
imprisonment for the main offence and for three months for the offence udner
Section 323/34 of the IPC.
judgment has been confirmed by the High court in appeal.
appeal by way of special leave is before us today.
learned counsel for the appellants has raised only one argument during the
course of hearing. He has submitted that from the evidence on record it was
clear that a case under Sec.302/34 IPC was not spelt out as there was no
intention whatsoever to murder Nana Saheb, as the intention was only to cause
him hurt as he was a busy body and creating difficulties for all and sundry. He
has submitted that as per the Doctor's evidence all seven injuries were prima
facie simple in nature on non-vital parts of the body and it was only injury
No.6 to the lung detected during the post mortem examination which was the -3-
cause of the death. He has also submitted that from a reading of the occular
evidence it was apparent that no intention to cause death was made out and that
the only purpose of the appellant was to teach the deceased a lesson for the
purpose of correcting his behaviour. The learned counsel has also relied upon
(1973) 3 SCC 466 (Ram Lal vs. Delhi Admn.) and (2002) 7 SCC 33 (Bhima @ Bhimrao
Sida Kamble and Others vs. State of Maharashtra) in support of his case.
learned counsel for the respondent-State has, however, submitted that the
evidence of five eye witnesses had uniformly made out a case of murder and as
the appellants had tried to restrain and obstruct the removal of Nanasaheb to
the hospital or to the police station to lodge a report after he had been
injured, the intention on the part of the accused was writ large. He has also
submitted that the animosity between the parties stood proved from the criminal
and other litigation that had ensued between them and which was the motive for
the incident that happened on the crucial day. He has also submitted that the
nature of the injury was a sine qua non for determining the nature of offence
and the intention on the part of the accused was a secondary consideration. The
learned counsel has relied on Virsa Singh vs. State of Punjab 1958 SCR 1495 for
have heard learned counsel for the parties and gone through the record. We find
from the evidence that the appellant Nivrutti alone was armed with an iron rod
and the others were armed with sticks. We have also gone through the post-
mortem report and observe the following injuries on the dead body:
abrasion over right lateral aspect of neck inferior to right angle of Mandible,
size = cm, = cm blackish discolouration, contused abrasion over left side of
chin of the size = cm. Floor was brownish, scap present.
type of contusion over right thigh anteriorly, two in number, blackish
discolouration, size 10 x 2-1/2 cm. Each.
2 Type of
contusion over left leg, posterior laterally, three in number, size 55 x
2-1/2cms., 8 x 2-1/2 cm., 11x2/1/2cm. Respectively blackish discolouration:
Contusion over left knee, size 12x4 = cm. With blackish discolouration:
type of contusion over left thigh, size 6 x 2-1/2 cm.
type of contusion over right scapular region of back, blackish size 7x1-1/2 cm.
tyupe of contusion over black, obligque with blackish discolouration, size 23
cm x 2-01/2 cm.
type of contusion over left scapular region extending to left arm, blackish
discolouration, size 17 x 2-1/2 cms."
Doctor Salunke PW.8, in his deposition stated that injuries Nos.1-5 were simple
and 6-8 would also be simple in normal circumstances, but injury No.6 which was
on the Scapular region, had apparently caused an internal injury on the lung
which was the cause of death. He clarified that except the internal injury
below injury No.6 which was the cause of death, all the injuries were simple
and on non-vital parts of the body. It is also significant that there is no
evidence on record to indicate as to who was the author of this injury as
omnibus allegations have been made against all the appellants.
argument was raised by the learned counsel for the respondent State that the
intention on the part of the appellants was something much more than a mere
intention to cause hurt as (after the injuries had been caused), they had
obstructed the removal of the injured to the hospital and the evidence of Ashok
and other PWs was clear and explicit on this aspect. We find this assertion to
be of no merit. We see from a reading of the judgment of the High Court that
the story with regard to the alleged restraint and obstruction has been
disbelieved, as this story had not been given in the police statements and was
a glaring improvement during the trial.
-6- The learned
counsel for the respondent has, however, brought to our notice the evidence of
PW.2 Zumberbai and PW.3 Rajender Kashinath Jaagdale and submittd that these two
witnesses had categorically and at every stage and without any contradiction
supported the story with regard to the obstruction. We have gone through the
evidence of these two witnesses very carefully with the help of learned counsel
and find that these two witnesses also had not made any mention with regard to
this matter in their statements under Sec.161 of the Cr.P.C. and the evidence
in Court on this aspect was also (as in the case of the other witnesses
mentioned by the High Court), a glaring improvement. The evidence of PW.2 and
PW.3 also, therefore, does not advance the case of the prosecution.
also gone through the judgment cited by the learned counsel. In Ram Lal vs.
Delhi Admn. (Supra) a Bench of this Court laid down the broad principle that
where several accused armed with non- lethal weapons with the common intention
of causing grievous hurt caused the death of an individual, the matter would
fall within Sec.325 of the IPC and not under Sec.302. In Bhima @ Bhimrao Sida's
case (supra) this is what this Court had to say in para 9:
"When a large number of persons were armed only with sticks or pelted
stones which they could find anywhere either near the fields on or their way
and it was not established as to who specifically attacked whom, it is not
clear as to whether the intention was to cause death. It is more probable that
the intention was to give a hard beating only. Even if we accept the case that
the deceased Vithal was pursued right up to the wada, the object of the mob was
to teach him a stern lesson who is said to be a bully in the village. In the
circumstances and in the light of evidence, we must hold that the reasonable
inference to be drawn is that the common object was to commit offences under
Section 323 and Section 325 read with Sections 147/149 IPC and not under
Section 302 read with Section 149 IPC. The trial Court as well as the High
Court appear to have lost sight of crucial aspects."
that the facts of the case before us today are largely akin to the facts in
Bhima's case. In fact the present case is somewhat on a better footing as the
evidence in the cited case was that after causing the initial injuries on the
person of the deceased, the accused had pursued the deceased right up to the
Wada. We also find that in both the afore cited cases some of the injuries had
been caused on vital parts of the body such as the head. In the present matter
we observe that there is no injury on any vital part of the body, there is no
evidence as to who had caused injury No.6 and that the story with regard to the
obstruction put in the way of Nanasaheb's removal from the site is not borne
out by the prosecution evidence and in any case has been disbelieved even by
the High Court.
however, feel that as one of the appellants Nivrutti, had been armed with an
iron rod, the present matter would fall within the ambit of Section 326/34 of
the IPC. We have also considered the judgment cited by the learned counsel for
the respondent i.e. Virsa Singh's case (supra) where the question posed was as
to whether one injury inflicted in the abdomen would make the matter fall
within Sec.302 or 304 Part-I. It is in this connection that the observation was
made that the nature of the injury alone should be looked at and not the
intention. In any case Virsa Singh's judgment has been reconsidered and
explained in several other judgments and the effect thereof has been watered
accordingly, partly allow this appeal, set aside the conviction of the
appellants under Sec.302/34 IPC and alter it to one under Sec.326/34 IPC and
reduce the sentence to 5 years R.I.; the default clause and the conviction
under Section 323/34 of the IPC to remain as it is.
.................J. (HARJIT SINGH BEDI)
.................J. (J.M. PANCHAL)
July 29, 2009.