REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.               OF 2009 (Arising out of SLP (Crl.) No. 5369 of 2008)

Ramchandra Dhondiba Kaware .. Appellant

Versus

State of Maharashtra ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court dismissing the appeal filed by the appellant. Learned

2nd Additional  Sessions  Judge,  Sangli,  had  convicted  the  appellant  for

offence punishable under Section 302 of the Indian Penal Code, 1860 (in

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short the ‘IPC’) and sentenced to undergo life imprisonment and to pay a

fine of Rs.1,000/- with default stipulation.  

3. Prosecution version in a nutshell is as follows:

The accused-appellant and one Shivaji Baba Lohar who was working

with Keru (hereinafter referred to as the ‘deceased’) were on inimical terms.

Shivaji’s  sister  was  married  to  the  accused.  The  accused  had  borrowed

money from Shivaji which he had not returned. The accused used to visit

Shivaji in the field owned by the deceased. Keru and his family knew the

accused  and  would  often  give  him agricultural  produce  from their  lands

since the accused was jobless. Shivaji demanded repayment of the loan he

had advanced  to  the  accused.  The  accused  was  annoyed  by this  and  on

3.6.2000 he went to Keru’s farm. Keru was asleep at a little distance from

the rest of the members of his family. Shivaji was sleeping at another spot

on the farm, a little further away from the family. The accused entered the

farm before daybreak, at about 3 am. The dogs started barking and Maruti,

the son of the deceased saw the accused beating the victim with a yoke.

Maruti  alerted  Shivaji  and  they  chased  the  accused,  but  he  managed  to

escape  their  clutches.  Maruti  and  Shivaji  returned to  the  spot  where  the

victim was lying. They found that his skull had been fractured and a part of

his brain was protruding. Three fingers of his right hand were fractured and

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broken. His head and ears were bleeding. Maruti lodged a complaint with

the police. The dead body of Keru was taken for the autopsy. The required

panchanamas were drawn up and statements  of  witnesses  were recorded.

The accused was apprehended and charged for having committed an offence

punishable under section, 302 IPC. His trial was committed to Sessions. The

Sessions Court after consideration of the evidence on record as noted above

convicted the accused.

Before the High Court the only stand was that the evidence of the so

called  eye  witnesses  PWs  1  and  4  cannot  be  relied  upon.   It  was  also

submitted that a case under Section 302 IPC was not made out. The High

Court  found no substance in the plea and dismissed the appeal  as afore-

noted.  

4. The stand taken before the High Court was re-iterated in the present

appeal.  

5. The evidence of PWs 1 and 4 does not suffer from any infirmity. PW-

1 has categorically stated that he was awakened by the barking of dogs.  He

heard the sound of somebody being beaten. He saw the incident in the light

from a lantern when the accused was hitting his father on the head with a

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yoke. The witness claimed to have chased the accused but could not catch

him. The evidence of PW-4, the widow was to the similar effect. Both the

trial Court and the High Court have referred to the evidence in great detail

and found that their evidence is credible and cogent and unerringly points at

the  accused  to  be  author  of  the  crime.  The  other  question  is  regarding

applicability  of  Section  302  IPC.  It  appears  that  the  accused  and  the

deceased were in inimical terms.  Only one blow was given with the yoke in

the night. PW-4 has categorically admitted that it was dark, but he identified

the accused because he was known to him. Number of injuries is always not

a  determinative  factor  regarding  applicability  of  Section  302  IPC.   The

nature of the weapon, place where it was struck and several other relevant

factors throw light on this aspect. Considering the background facts of the

present  case  according  to  us  the  appropriate  conviction  would  be  under

Section 304 Part I IPC. Custodial sentence of 10 years would meet the ends

of justice.  

6. The appeal is allowed to the aforesaid extent.    

…………………………………….J. (Dr. ARIJIT PASAYAT)

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……………………………………J. (ASOK KUMAR GANGULY)

New Delhi, January 27, 2009

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