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   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 17 OF 2003

CHANGDEO NIVRUTI KAMATHE   ..... APPELLANT

VERSUS

STATE OF MAHARASHTRA ..... RESPONDENT

with SLP(CRL.) NO. 5513 of 2002

O R D E R

The broad facts for the disposal of the present  

appeal are as under:-

19  persons  in  all  including  A1  –  Changdeo  

Nivruti Kamathe, the appellant herein were brought to  

trial  for offences under Sections 302, 326, 324, 353,  

332,  387  read  with  Section  149/148  IPC  for  having  

caused the death of Kalo Ram and injuries to several of  

the witnesses, on the 12th of April, 1985 during the  

course of a fair and a religious procession in the  

village of which both the parties were  residents.  The  

Sessions  Judge,  Pune,  vide  his  judgment  dated  

16.05.1986 acquitted all the accused holding inter alia  

that the witnesses were interested parties and that  

they had deposed against the accused persons on account  

of  enmity  and  that  the  prosecution  version  was  not

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supported by the medical evidence or the evidence of  

the police officer who had investigated the matter.

The matter was thereafter taken in appeal before  

the Bombay High Court, which, by its order dated 23rd  

July, 2002, partly allowed the appeal and convicted the  

appellant under Section 302 of the Indian Penal Code  

simplicitor  and  sentenced  him  to  undergo  life  

imprisonment  and  to  the  payment  of  a  fine  with  a  

default clause and convicted two of the other accused  

Vishnu  Nivruti  Kamathe,  Shankar  Mugut  Kamathe  and  

Bhanudas @ Bhalchandra Gulab Kamathe under Section 323  

IPC  and  also  sentenced  them  to  undergo  a  term  of  

imprisonment.   

Two appeals have been filed by Changdeo Nivrutti  

Kamathe alone who has been convicted for the offence of  

murder and the other that is S.L.P. (Crl.) No. 5513 of  

2003  has been filed by the other accused.  We grant  

leave in this matter as well.

Mr.  R.  Sundaravardhan,  the  learned  senior  

counsel for the appellant in Criminal Appeal No. 17 of  

2003 has raised several arguments during the course of  

the  hearing.   He  has  pointed  out  that  it  was  well  

settled that the High Court in dealing with an appeal

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against acquittal should not ordinarily  interfere with  

the judgment of the trial court unless that judgment  

could  be  said  to  be  perverse  and  as  this  cardinal  

principle  had  been  discarded  by  the  High  Court,  

interference by this Court was called for to rectify  

what was an apparent mistake. He has also submitted  

that  the  observations  of  the  High  Court  on  the  

statements of the witnesses (that the trial court found  

were not worthy of belief as they were relatives of the  

complainant party) were also erroneous as the medical  

evidence did not support the ocular testimony.   

Mr. Ravindra  K. Adsure the learned counsel for  

the State of Maharashtra has, however, supported the  

judgment of the High Court and submitted that as the  

judgment of the Sessions Judge was erroneous to the  

point of perversity,  interference by the High Court  

was justified.

We have considered the arguments advanced by the  

learned counsel for the parties.

In the light of the fact that all P.Ws. some of  

them  injured,  have  specifically  named  the  appellant  

herein  i.e  Changdeo  Nivruti  Kamathe  as  the  primary

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mover of the crime and has attributed the fatal injury  

on the person of Kaluram deceased to him, we are of the  

opinion that his presence appears to be proved on the  

record.  It has come in the evidence of the witnesses  

that Kaluram had fallen on the ground and as his son  

attempted to save him a gupti which had been concealed  

by the appellant was used to cause an injury on the  

person of Kaluram and one injury   on the back of  

Sudhakar (PW 6).  The presence of the injury on the  

deceased is evident from the medical evidence.

Mr.  Sundaravardhan  has  then  fallen  back  

alternatively on the argument that Section 302 was not  

made out as only one injury had been found as per the  

medical evidence and that too during a fracas involving  

a large number of persons on both sides the matter  

would fall under Section 304 Part I or 304 Part II IPC.

We have considered this argument and find that  

it has merit.

We see from the evidence of P.W. 9  Dr. Sheikh  

who had performed the post mortem on the dead body and  

had noted one injury 2.5cm X ½cm  X 11cm at 2 cms left  

lateral to the first thoracic spine on the shoulder.

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On an examination of the said injury he found that it  

had penetrated into the aorta.  We also see that the  

incident  happened  during  the  course  of  a  heated  

argument between a large number of persons present on  

both sides.  It is also clear from the evidence of  

P.Ws. 7 and 8, police constables who were on bandobast  

duty during the procession, that a crowd of 400 to 500  

representing rival groups had collected at the place  

and stone pelting by rival groups and fiery speeches  

had  been  made  as  a  prelude  to  the  incident  which  

happened despite the efforts of those  present  to  

pacify  both  sides.   We  also  see  that  the  incident  

happened in the year 1985 and that the trial court by  

its judgment dated 16.05.1986 had acquitted all the  

accused.   

In view of the above stated facts, we feel that  

the ends of justice would be met if the offence is  

converted into one 304 Part-I  and the sentence is  

reduced to five years rigorous imprisonment.

With this above modification, the above appeal  

is dismissed.  

SLP(Crl.)  No. 5513/2002

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For the reasons recorded in Criminal Appeal No.  

17  of  2003,  the  special  leave  petition  stands  

dismissed.

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [R.M. LODHA]

NEW DELHI OCTOBER 07, 2009.