RAMCHANDRA DHONDIBA KAWAREversusST ATE OF MAHARASHTRA

                              (2009) 1 S.C.R.. 649


                   RAMCHANDRA DHONDIBA KAWARE                             A
                                       v.
                        ST ATE OF MAHARASHTRA
                      (Criminal Appeal No.155 of 2009)
                             JANUARY 27, 2009
                                                                          B
                [DR. ARIJIT PASAYAT AND ASOK KUMAR
    ..                       GANGULY, JJ.]

,            S.302, 304 Part I - Eye-witness account believed by Trial
         Court - Conviction under s.302 ordered - Upheld by High          c
         Court - On appeal, Held: Considering the background facts
         appropriate conviction would be under s.304 Part I /PC -
         Custodial sentence of 10 years would meet the ends of justice.

              The conviction of the appellant under s.302 IPC by          D
         the trial court and as upheld by the High Court is under
         challenge in this appeal.

             Partly allowing the appeal, the Court

              HELD:1. The evidence of PWs 1 and 4 does not                E
         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 yoke. The witness          F
         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         G
         the accused to be author of the crime. [Para 5) [651-H;
         652-A-B]

              2. It appears that the accused_and the deceased were
         in inimical terms. Only one blow was given with the yoke
                                      649                                 H
    650           SUPREME COURT REPORTS              [2009] 1 S.C.R.


A 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
B and several other relevant factors throw light on this
  aspect. Considering the background facts of the present
  case the appropriate conviction would be under Section
  304 Part I IPC. Custodial sentence of 10 years would meet
  the ends of justice. [Para 5] [652-C-D]                              •
c       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 155 of 2009.

      From the Judgment and Order dated 16/10/2006 of the
  High Court of Judicature at Bombay in Crl. Appeal No. 616 of
D 2002.

          S. Balaji and Madhusmita Bora for the Appellant.

          R.K. Adsure for the Respondent.

E         The Judgment of the Court was delivered by

          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
F 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 short
  the · IPC') and sentenced to undergo life imprisonment and to
  pay a fine of Rs.1,000/- with default stipulation.
G
          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
H
   RAMCHANDRA DHONDIBA KAWARE v. STATE OF                   651
      MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

 to the accused. The accused had borrowed money from Shivaji       A
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         B
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       c
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
                                                                   0
fractured and a part of his brain was protruding. Three fingers
of his right hand were fractured and 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             E
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.
                                                                   F
     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.                     G

     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     H
    652           SUPREME COURT REPORTS             [2009] 1 S.C.R.


A 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 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
B 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
c 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
0
  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.

E          6. The appeal is allowed to the aforesaid extent.

    G.N.                                     Appeal partly allowed.