03 Nov 2020
Case : State of Maharashtra v. Mukund Trimbak Sonawane and Ors. Criminal Appeal No. 206 of 2001
Court : Bombay High Court
Bench : Justice Sadhana S. Jadhav & Justice N.J. Jamadar
Decided on : 03 Nov 2020
Section 323, 304, 504 and 34 of the Indian Penal Code, 1860
Section 135 of the Bombay Police Act, 1951
Section 161 of the Code of Criminal Procedure, 1973
Brief Facts and Procedural History
1. On 23rd August 1999 during a religious procession in village Tandulwadi, the demand of the accused No.1 Mukund Sonawane from the first informant Nagnath Gaikwad to offer them a treat of chewing betel (leaf) was turned down by the latter, which was followed by the accused raking up the quarrel, abusing him in filthy language and beating him by fists. Bhagwan Kadam and Hanumant Gavali, who were present there, rescued the first informant. Thereupon, the accused threatened to cause harm to Navnath, the deceased, and rushed towards the informant’s house. The first informant followed the accused. The accused began to abuse and assault the deceased and Parmeshwar Gaikwad, the father of the first informant. Accused No. 2 Dilip went to his home and returned to the spot armed with a sword and gave a blow by means of sword on the head of the deceased, who then fell. Accused No. 2 Dilip also unleashed blows with the sword on Parmeshwar, who sustained injuries on right hand and waist. The first informant was also assaulted by the accused while he was trying to rescue the deceased and Parmeshwar. The accused then fled away.
2. The FIR was lodged. Meanwhile, the deceased succumbed to the injuries on 24th August 1999 in Civil Hospital, Solapur. The investigation commenced. An inquest was held. The accused were arrested. The post-mortem report and C.A. report were obtained.
3. The charge sheet was lodged against the accused in the Court of jurisdictional Magistrate and the case was committed to the Sessions, Judge. The Sessions Court convicted accused No. 2 Dilip Sonawane for the offences punishable under section 304 Part II, 324, and accused No. 1 Mukund Sonawane and No. 3 Somnath Londhe, were convicted for the offences punishable under section 323 and 504 read with 34 of the Indian Penal Code, 1860 and section 135 of Bombay Police Act, 1951.
4. The Sessions Judge observed that the prosecution succeeded in establishing that the accused Nos. 1 and 3 had voluntarily caused hurt and an intentional insult to the deceased, Parmeshwar and the First informant. However, the accused Nos. 1 and 3 did not share the common intention to cause the fatal injury to the deceased, which was inflicted by accused No. 2 Dilip with the sword. The learned Sessions Judge was of the view that the act of accused No. 2 Dilip of giving a single blow on the head of the deceased by means of sword was, however, not with the intention of causing death. According to the learned Sessions Judge, the accused No. 2 Dilip had the requisite knowledge that the act would result in the death of the deceased and thus the learned Sessions Judge went on to convict the accused No. 2 Dilip for the offence punishable under section 304 Part II of the Penal Code, 1860.
5. Accused No. 2 Dilip preferred an appeal against the judgment of conviction and order of sentence.
6. The State is also aggrieved by the quantum of a sentence imposed by the learned Sessions Judge which is stated to be grossly inadequate and disproportionately lenient. Thus the State has preferred appeal for enhancement of sentence
The Issues of the Case
Whether the finding recorded by the learned Sessions Judge that accused No. 2 Dilip was the author of the homicidal death in question warrants interference?
Whether the sentence of accused No. 2 should be enhanced?
The Observations of the Court
1. The medical evidence in the form of an injury certificate supports the version of Parmeshwar Gaikwad (P.W.7) and lends credence to his evidence that he was injured in the same occurrence. It is trite law that an injured witness stands on a higher pedestal than a simple eye-witness. The testimony of an injured witness commands greater evidentiary value and it cannot be discarded lightly. Two imperatives exist in this context. One, the injuries sustained by the injured furnishes an inbuilt guarantee about the presence of the injured person at the time and place of occurrence. Two, an injured is ordinarily not expected to shield a real culprit and implicate an innocent person. Moreover, the evidence of the first informant Nagnath Gaikwad (P.W.4) and Digambar Gholap (P.W.5), an independent witness, lends unwavering corroboration to the claim of Parmeshwar Gaikwad (P.W.7).
2. The testimony of Nagnath Gaikwad (P.W.4) on the aspect of having been abused and assaulted by the accused in the first phase of the incident, near the platform of Shetkari Sanghatana, finds sufficient corroboration in the evidence of Bhagwan Kadam (P.W.6), who also supported the claim of Nagnath Gaikwad (P.W.4) that while leaving the said place, the accused threatened to see the father and brother of the first informant Nagnath Gaikwad (P.W.4). Thus, it was but natural for the first informant Nagnath Gaikwad (P.W.4) to follow the accused who had proceeded towards the house of the first informant after giving the threat to cause harm to Parmeshwar Gaikwad (P.W.7) and the deceased. The said lead up to the occurrence renders the presence of Nagnath Gaikwad (P.W.4) at the scene of occurrence natural.
3. The learned Sessions Judge was thus justified in placing reliance on the evidence of discovery in addition to the visual account and medical evidence, which was relevant in establishing the authorship of the crime. The recovery of the weapon of assault i.e. sword, pursuant to the discovery made by accused No. 2 Dilip was arrayed against the accused. On the evaluation of the evidence of Shivaji Sathe (P.W.1), the public witness to the discovery made by accused No. 2 Dilip leading to the seizure of the sword from his house under seizure panchanama, the evidence of discovery stood firm.
4. C.A. report revealed that human blood was found on the sword and the glass shards which were seized from the scene of occurrence. The pant which accused No. 2 Dilip wore at the time of occurrence had bloodstains of “O” group. This circumstance also connects the accused No. 2 Dilip with the crime.
5. Non-explanation of injuries on the person of the accused cannot be resorted to as a ritualistic formula to throw the prosecution’s account, in every case, irrespective of the quality of the evidence and is of no assistance to the accused, as observed in Takhaji Hiraji vs. Thakore Kubersing Chamansing and Ors, (2001) 6 SCC 145.
6. The learned Sessions Judge correctly found that accused No. 2 Dilip caused fatal injury with the sword on the head of the deceased and all the three accused could not be attributed with the common intention to cause the said injury to the deceased.
7. There is evidence to indicate that accused No. 2 Dilip, after the brawl broke out, went to his house and returned to the scene of occurrence armed with the sword and thereafter gave a blow with the sword on the back of the head of the deceased. This evidence justifies that accused No. 2 Dilip had desired to assault with the sword. The act fell within the ambit of the clause “Thirdly” of section 300 of the Indian Penal Code, 1860. Virsa Singh v. State of Punjab, AIR 1958 SC 465 laid down that the prosecution must prove the following facts before it can bring a case u/s. 300, “thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; Thirdly, it must be proved that there was an intention to inflict that particular bodily injury. Once these three elements are established by the offence is murder u/s. 300, “thirdly”. It does not matter that there was no intention to cause death or there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature or there is no knowledge that an act of that kind will be likely to cause death. On the aforesaid touchstone, the conditions to bring the act of the accused within the scheme of clause “Thirdly” of section 300 are fully satisfied. One, accused No. 2 Dilip assaulted the deceased with a sword with the intention of causing bodily injury. The weapon of assault and the part of the body selected leave no scope for any other inference. Two, there is medical evidence to indicate that the injury was sufficient in the ordinary course of nature to cause death. The fact that there was no intention to cause death is of no relevance.
8. An 18-year-old boy lost his life for no fault of his. Evidence exists to indicate that the accused No. 2 Dilip was not satisfied by the assault upon the first informant and ran to the house of the first informant to cause harm to the deceased. Moreover, there are no mitigating circumstances. A sentence of five years imprisonment does not adhere to the principle of proportionality of the punishment to the gravity of the offence. It errs on the side of leniency. Thus, the sentence imposed upon accused No. 2 Dilip must be enhanced.
The Decision of the Court
The High Court held that:
1. The appeal against the conviction is liable to be dismissed and an appeal preferred by the State for enhancement of sentence deserves to be allowed.
2. The accused No. 2 Dilip Gajendra Sonawane was sentenced to suffer rigorous imprisonment for eight years and pay a fine of Rs. 2,000/- and in default of payment of fine, the accused No. 2 shall suffer rigorous imprisonment for two months.
3. The accused No. 2 Dilip Gajendra Sonawane was asked to surrender before the Court of learned Sessions Judge, Solapur within four weeks, to undergo the remaining sentence as enhanced.