http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (crl.)  663 of 1998

PETITIONER: Daulat Trimbak Shewale & Ors.

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 29/04/2004

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

               The appellants herein were tried for offences punishable  under Sections 302, 325 and 324 read with Section 34 IPC for  having committed the murder of one Keshav and having caused  injury to his brother Baburao (PW-1). The trial court found the  appellants guilty of offence punishable under Section 302 read with  34 IPC and sentenced them to undergo imprisonment for life. It  convicted Appellant Nos.2 and 4 also for an offence punishable  under Section 324 read with 34 IPC for which three months simple  imprisonment was awarded.                 The appellants herein unsuccessfully challenged the said  conviction and sentence before the High Court of Bombay, Nagpur  Bench, Nagpur, consequently they are before us in this appeal.                 Brief facts necessary for the disposal of this appeal are as  follows:           The appellants and the deceased and his family owned  neighbouring lands in the Village Koyali, Tehsil Risod in Akola  District of Maharashtra. There was some dispute in regard to the  boundary between these two properties because of which the  appellants had filed a civil suit and had obtained an injunction  against the deceased and his family from sowing the disputed area  of the land. But before the injunction could be obtained the  deceased and his family had already sown Moong crop in the  disputed area sometime in July of 1992. It is the case of the  prosecution that Moong crop sown by the deceased and his family  was ready for harvesting sometime in September, hence,  anticipating the harvesting of the crop by the deceased and his  family the appellants had sought for police help to prevent the  same, but such help was not given by the police. Therefore, it is  stated that on 4.9.1992 at about 10 a.m. when deceased and his  brother were harvesting the crop, the appellants came to the field  armed with deadly weapons and assaulted the deceased and his  brothers, consequent to which deceased Keshav died and his  brothers Baburao and Bahurao suffered injuries. A complaint in  this regard was lodged by PW-1 in Shirpur Police Station and on  the basis of the said complaint a case was registered against the  appellants, as stated above. In the meanwhile the appellants herein  also approached the same police station and lodged a complaint  that they were assaulted by the party of the deceased. Said  complaint was also accepted and a separate case was registered  against the deceased and his brothers.         In the case filed by the brother of the deceased, the police  after investigation filed a charge-sheet for offences, as stated above  and the trial court convicted the appellants which conviction was  confirmed by the High Court.  Since we are not concerned with the  complaint filed by the appellants in this appeal and since there is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

no material in regard to the fate of that complaint on record it is not  necessary for us to deal with the facts pertaining to that complaint  except to the extent the same is taken as a defence by the  appellants in this case.  Shri M.R.Daga, learned counsel appearing for the appellants  contended that by virtue of the injunction granted by the civil court  the appellant were in possession of the land in question and it is the  complainants side which tried to interfere with their possession and  in the course of protecting the possession of the property the  deceased and others including the appellants suffered injuries.  Therefore, the offence if at all committed by the appellants would  come under Explanation 4 to Section 300, hence, they cannot be  held guilty of any of the charges framed against them. This  argument of the learned counsel proceeds on the assumption that  the appellants had proved before the courts below that they were in  possession of the disputed property. On the contrary the finding of  the two courts below is that the appellants were not in possession  of the property and by virtue of the injunction obtained by the  appellants they did not get the possession of the suit property. The  trial court noticed in the averments made in the application filed  for the grant of injunction before the civil court by the appellants  wherein the appellant had admitted that the deceased and his  brothers had already sown Moong crop on the land in question.  Therefore, the trial court came to the conclusion that the crop that  was ready for harvesting was the crop sown by the deceased and  his party hence, the appellants contention that they were in  possession of the property was incorrect. The High Court has  agreed with the said finding of the trial court and we find no reason  whatsoever to differ from the said finding more so in the  background of the fact that the appellants themselves had admitted  in the injunction application that the deceased and his party had  already sown the Moong crop. Therefore, the argument of the  learned counsel that the appellants were only defending their  rightful possession of the property has to fail.         Learned counsel then contended that assuming that the  appellants did assault Keshav there is no material to show that the  accused persons had any intention to cause death of the deceased  and there being no charge under Section 149 IPC, the courts below  erred in convicting the appellants with the aid of Section 34 IPC,  more so because of the fact that the prosecution has failed to  establish who actually caused the fatal injury. He also submitted  that there is absolutely no material to show that all the nine  accused appellants before us shared the intention of any one of  those who caused the fatal injuries, hence they are entitled for  acquittal. We do not agree with the learned counsel that the trial  court was not justified in relying upon Section 34 to convict the  accused persons because on the material available on record it  could be seen that there was a dispute between the parties and on  the fateful day the deceased and his brothers were harvesting the  crop and the appellants having failed to obtain police assistance  came armed and assaulted the deceased and his brothers, during  which assault the deceased died and some persons on the  assailant’s side and some persons on the deceased’s side suffered  injuries. The factum of the appellants coming armed with deadly  weapons to the field where the deceased and his party were  harvesting the crop itself shows that the appellants did share the  common intention.         From the above facts, the two courts below have come to the  conclusion that the common intention of the appellants was to  cause the death of the deceased. This finding is given by the courts  below because of the number of injuries found on the body of the  deceased and the nature of weapons used in the assault.         We are in agreement with the finding of the courts below  that the appellants did share a common intention. But question for  our consideration is : what was the common intention ? Is it to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

murder the deceased as held by the two courts below or was it to  merely assault in an attempt to take possession of the disputed  land. An over all consideration of the material on record like the  motive, nature of injuries caused, and the fact that there were also  injuries on the accused  indicates that there was a fight between the  two groups of people during which fight the deceased suffered the  injuries. It is difficult to come to the conclusion that the appellants  went and assaulted the deceased with the intention to kill him. If  that was the intention there would have been many more injuries  on other vital parts of the body, as also the fact that no attempt was  made to kill the other two brothers of the deceased even though  they were out numbered. The fact that the appellants had sought  police help also indicates that they did not intend to take the law  into their own hands in the first instance. Further the fact that  though many of the appellants carried axes the doctor who  conducted the post mortem found only one incised wound on the  forehead. This also indicates that the accused persons did not really  intend to kill the deceased. At the same time, it is to be noted that  the prosecution has not been able to identify who really caused  Injury No.12 which caused the death of the deceased. In such  circumstances, we think it is not safe to infer that the appellants  shared a common intention of causing the death of the deceased,  but it would be more appropriate to hold the appellants guilty of  causing grievous hurt an offence which is punishable under  Section 326 IPC.                  For the reasons stated above, while partly allowing the  appeal we modify the conviction recorded by the two courts below  to one punishable under Section 326 read with 34 IPC and direct  the appellants to undergo RI for a period of 7 years. We maintain  the conviction imposed on appellants No. 2 and 4 awarded by the  courts below under Section 324 read with Section 34 IPC but  direct the said sentence to run concurrently.         If the appellants have served any part of the sentence, set off  shall be given for the same. We are informed that the appellants  are on bail, their bail bonds are cancelled and they shall surrender  and serve out the sentence, as stated above.