CHANDRU PARAPPA KUMBHAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A curious and somewhat interesting point has been canvassed in this criminal appeal which essentially revolves around the question as to whether in a case where multiple injuries, none of them of a grave nature, have been inflicted and the victim has died as a result thereof, whether a conviction under section 302 of the Indian Penal Code is sustainable. For purposes of that proposition, one needs to further state that the injuries in question are on non-vital parts of the body and in these circumstances the moot point that arises is as to whether in the absence of specific evidence that any of these injuries were sufficient in the ordinary course of nature to cause death, it would be correct in law to sustain the conviction awarded by the trial Court under section 302 of the Indian Penal Code. The subsidiary issue canvassed was with regard to an allegedly defective charge and its effect on the trial, if the point is raised for the first time at the appellate stage. Where it is contended that the charge is defective and it does appear to be so, whether that aspect alone would be sufficient to vitiate the trial or whether it is to be regarded as a mere irregularity that is essentially curable. We need to first recount the brief facts.

(2.) THE incident in question took place at about 9. 30 p. m. on the night of 2-5-1988 at Kumbhar Galli Chowk, Rajgolikhurd. It is alleged that there was some dispute going on in the Kumbhar Family with regard to the occupation of the family house. Pursuant to that dispute, it is alleged that the deceased Jotiba on that night after completing his dinner made his way from his house to the Chowk where a Pan shop was located. The accused, who are also from the same clan, are alleged to have followed him and mercilessly assaulted him. Accused No. 1 is alleged to have used a stick. Accused No. 2 a koyta and accused No. 3 a knife. The prosecution witnesses alleged that these three persons assaulted Jotiba with the weapons in question as a result of which there was a commotion. According to the witnesses, accused Nos. 4, 5 and 6 were instigating accused Nos. 1, 2 and 3 to continue to assault and not to leave Jotiba alive. Jotibas wife Shantavva (P. W. 7) and his mother Gangavva (P. W. 10) had rushed to that spot on hearing the commotion and they allege that in trying to rescue Jotiba they had also sustained certain injuries. According to the witnesses, Jotiba died on the spot and, therefore, there was no question of taking him anywhere for medical assistance. It is also contended that the matter was reported to the Police Patil, but since the village in question was located in a relatively remote area that it was only on the next morning that the witnesses could make their way to the Police Station and the First Information Report was lodged at 11. 15 a. m. on the next day, i. e. after 14 hours. The Police thereafter commenced their investigations and arrested the six accused persons. According to the prosecution, in the course of the investigation, accused No. 2 made a statement that he would produce certain weapons and pursuant to the statement he led the Police and the panchas to a particular place in the farmland from where the stick, the sickle and the knife were produced. There is, however, no evidence to indicate that these weapons were sent for chemical analysis. On completion of the investigations, the six accused were put up for trial and the learned Additional Sessions Judge, Kolhapur framed charges against them under sections 302, 325 and 324 read with section 149 of the Indian Penal Code.

(3.) THE defence of the accused was one of total denial. According to them, the deceased Jotiba, who owned a Pan shop, used to also sell soda-water from his shop and that persons who were given to the consumption of alcohol used to frequent that place and it is alleged that in the course of some dispute involving the persons who were already drunk that Jotiba came to be assaulted and that because of the background of the house dispute, Jotibas relatives had falsely implicated the accused. The learned trial Judge disbelieved the evidence and convicted all the six accused under section 302 read with section 149 of the Indian Penal Code and awarded them a sentence of imprisonment for life and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for three months as also under section 324 read with section 149 of the Indian Penal Code and awarded to each of them rigorous imprisonment for six months and to pay a fine of Rs. 200/- in default to suffer rigorous imprisonment for one month. It is against this set of conviction and sentences that the present appeal has been directed. We may mention at this stage that accused Nos. 4 and 5 were granted bail by this Court at the time of the admission of the appeal, apart from other reasons, because they were women. Accused No. 6, who was an old man, died in the Jail and hence as far as he is concerned, the appeal abates. Accused Nos. 1, 2 and 3 continue to be in custody and we, therefore, restrict the consideration of this appeal to original accused Nos. 1 to 5 only.