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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.402 OF 1999.
1. Amruta s/o Shankarrao Deshmukh,
aged 46 years, occu. Agril.,
r/o Pimpalgaon (Mahadeo),
Taluka & Dist. Nanded.
2. Anil s/o Amruta Deshmukh,
aged 24 years, occu. Agril.,
r/o as above. ...APPELLANTS.
VERSUS
The State of Maharashtra. ...RESPONDENT.
...
Shri G.D. Kale, Advocate for appellants.
Shri V.G. Shelke, A.P.P. for Respondent/State.
...
CORAM: S.S. SHINDE,J.
7th JANUARY, 2011.
ORAL JUDGMENT:
1. This appeal has been preferred by the
appellants challenging their conviction and
sentence awarded by the 3rd Addl. Sessions Judge,
Nanded in Sessions Case No.123 of 1996. The
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learned trial Judge has convicted the appellants
for offence punishable under Section 324 r.w. 34
of I.P.C. and sentenced them to suffer S.I. for
six months and to pay a fine of Rs.1000/-, in
default, to suffer S.I. for three months.
2. On perusal of the impugned judgment and the
record and
ig proceedings made available, the
prosecution story, in nutshell is as under:
The original accused no.1 Amruta is father
of accused No.2 Anil and accused No.3 Digambar,
who is acquitted by the trial Court. Lands of
complainant Venkatrao Deshmukh and P.W.4 Nivratti
are near the land of accused at village
Pimpalgaon (Mahadeo), Tq. And district Nanded.
The accused are from brother-hood of complainant
Venkatrao. On 8.12.1994, in the noon time
accused Nos.1 to 3 threatened the complainant
Venkatrao in his field stating that they will not
allow him to take the canal water to his field.
The canal water to the field of complainant and
other fields at village Pimpalgaon (Mahadeo) was
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available during the night time only. So in
order to plant sugarcane, P.W.2 Datta, P.W.4
Nivratti and P.W. 5 Vishwanath went to the field
of complainant on 8.12.1994 at about 8 p.m. By
that time, the canal water had not yet available
in the field of complainant. So complainant and
others slept in the field of complainant
Venkatrao at 8.30 p.m.
ig Thereafter, at about 10
to 10.30 p.m., P.W.4 Nivratti raised alarm by
shouting and uttering the word “Melore”. By
hearing the alarm of P.W.4 Nivratti, complainant,
P.W.2 Datta and P.W.5 Vishwanath woke up. When
complainant asked as to what happened, the
accused No.2 Anil assaulted complainant Venkatrao
by “Jambiya” (Knife) on his head and caused
bleeding injury on the head. Accused No.1 Amruta
also assaulted complainant Venkatrao on his left
hand palm by held of “Katti” and caused bleeding
injury. Accused No.3 Digamber was armed with an
axe and he was standing there. All the accused
after assaulting the complainant Venkatrao and
P.W.4 Nivratti and causing them injuries, left
the place of incident. P.W.2 Datta took the
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complainant Venkatrao and P.W.4 Nivratti to the
Civil Hospital, Nanded by Auto rickshaw for
medical treatment. The Medical Officer on duty
informed the P.W.9 Police Head Constable Ganesh
Kendre, who recorded the complainant. Office
punishable under Sections 307 r.w. 34 of I.P.C.
was registered against the accused persons. After
carrying out necessary investigation, the Police
filed charge-sheet in the Court of J.M.F.C., who
in turn committed the case to the Court of
Sessions, offence u/s 307 I.P.C. being
exclusively triable by Sessions Court.
4. Consequent upon committal of the case, the
Sessions Court framed charge for the offences
punishable under Section 307 r.w. 34 of I.P.C.
and section 324 r.w. 34 of I.PC. Against the
accused. The learned trial Court, after trial,
convicted and sentenced the original accused Nos.
1 and 2 as mentioned above and acquitted the
original accused No.3 of the charges levelled
against him. Hence, this appeal by the appellants
– original accused Nos.1 and 2.
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5. Heard learned Counsel for the appellants and
the learned A.P.P. for the respondent / State at
length.
6. The learned Counsel for the appellants
submitted that the prosecution has not explained
the injuries on the person of accused No.2 Anil.
It has come in the evidence of P.W.7 that
accused Anil has also sustained injuries. Though
there is evidence of eye witnesses, including two
injured witnesses and medical evidence, the said
evidence suffers from certain minor
discrepancies. The learned Counsel for the
appellants also submitted that the alleged
incident took place during the night and due to
darkness, it is difficult to identify the
culprits. He, therefore, prayed for acquittal of
the appellants.
Learned counsel for the appellants submitted
that the prosecution has examined only interested
witnesses and no independent witnesses have been
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examined. The Medical Officer does not support
the case of the prosecution as his evidence shows
that that the injuries are caused by blunt
object. Learned counsel further submits that
evidence of eye witnesses shows that the injuries
are by sharp weapon, however, medical evidence
shows that the injuries are caused by blunt
object. Therefore, counsel would submit that the
prosecution case that victims were assaulted by
Katti and axe is falsified by medical evidence.
Counsel further submitted that injuries sustained
by the victims are simple in nature. Panchas have
not supported the case of the prosecution about
recovery of the alleged weapon. Learned counsel
further invited my attention to the medical
evidence and also evidence of eye witnesses and
submitted that the appellants deserve to be
acquitted.
7. On the other hand, the learned A.P.P.
submitted that there are injured eye witnesses to
the incident. The accused and the injured are
known to each other. Before the incident in
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question, there had been altercations between the
complainant party and the accused persons, which
has resulted in the incident of assault in the
night. The prosecution witnesses have
categorically named the accused persons and
attributed the role played by each of the
accused. The medical evidence and the report of
the Chemical
ig Analyzer also corroborates the
evidence of the prosecution witnesses in material
particulars. The learned trial Court believed
the evidence of the prosecution witnesses,
supported by the medical evidence ad C.A. Report,
and convicted the appellants – original accused
Nos.1 and 2 for the offence punishable under
Section 324 r.w.34 of I.P.C. and sentenced them
as aforesaid. All the accused were, however,
acquitted for the offence punishable u/s 307 of
I.P.C. The accused No.3 was also acquitted u/s
324 of I.C. The learned A.P.P. vehemently
supported the judgment and order of conviction
and prayed for dismissal of the appeal.
8. This Court admitted the appeal in the year,
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1999 and granted bail to the appellants. The
appellants are on bail at present.
9. I have given due consideration to the
submissions of the learned Counsel for the
appellants and the learned A.P.P. for the State.
I have carefully perused the evidence of P.W..1
Venkatrao, who is an injured witness.
ig He has
stated in his evidence before the trial Court in
para 3, thus:
“3. The incident occurred about 3 years
before. On the day of incident, the accused
No.1 to 3 informed me that they will not
allow me to take water of the Canal. In
that night, I, my son Sopan, my elderbrother Nivratti and my nephews Datta and
Vishwanath went towards field for the
purpose of planting sugarcane, in the field.
As there was no water coming through waterchannal, in the field, therefore, we went to
see the same in the field. At about 10.00
p.m. or 10.30 p.m. accused No.1 Amruta, Anil
and Digamber started assaulting my elder
brother Nivratti. We were all sleeping at
one place in the field nearer to each other.
My brother Nivratti raised alarm as::: Downloaded on – 09/06/2013 16:44:56 :::
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9“Melore”. The accused persons assaulted to
Nivratti with weapons Jambia, Axe and Katti(used for cutting of sugarcane). Then
accused No.2 Anil dealt with Jambia to me on
my head on occipital region. Accused No.1Amruta dealt Katti blow on my left hand palm
posterior side near the wrist. Due to
assault to me, my wearing shirt and Dhotiwere stained with blood. Brother Nivratti
was assaulted on left side arm pit, on leftside near the ear and on his head. In the
same night, my nephew Datta took us to Govt.
Hospital, Nanded.”
The evidence of P.W.1 Venkatrao is not
shattered in the cross-examination.
10. P.W.2 Datta in his evidence before the Court
has stated thus:
“After taking meal at home, at about 8.00 or
8.30 p.m., I , my father Nivratti, brotherVishwanath, uncle Venkatrao and my cousin
brother Sopan went to the field in night. As
we did not notice water of the canal we went
to sleep at one place nearer to each other.
Then at about 10.00 p.m. or 10.30 p.m., I
heard the alarm raised by my father Nivratti
as “Bapre Melore”. Hearing the alarm of my::: Downloaded on – 09/06/2013 16:44:56 :::
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10father, I got woke up. I saw injury to the
left side rib of my father. I say accusedNo.3 Digamber giving axe blow to my father
near left side ear. We all had woke up
hearing alarm of my father. I say accusedNo.2 Anil giving Jambia blow on the head of
my uncle Venkatrao. I say accused No.1
Amruta giving blow with Katti on the lefthand of Venkatrao on the palm portion. Due
to assault
ig my father Nivratti and uncle
Venkatrao sustained bleeding injuries.
After the incident, all the accused personswent away to their field. Our field is
adjoining to road. Therefore, I took my
father and uncle in one Auto rickshaw to
Nanded Hospital, and both were admitted inthe hospital.”
In the cross-examination, the evidence of
P.W.2 Datta is not shattered.
11. P.W.3 Dr. Gajendra Deshpande, Medical
Officer, G.G.M. Hospital, Nanded had examined the
injured persons and found two stab injuries on
the person of Nivratti Kamaji Deshmukh and two
C.L.Ws. On the person of Venkatrao Kamaji
Deshmukh. These injuries have been proved by the
Medical Officer P.W.3 Dr. Deshpande. The
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evidence of these witnesses is also corroborated
by the C.A. Report on record.
P.W.3 Dr. Gajendra Deshpande in para 2 of
his examination has stated that on examination of
patient Nivrutti Kamaji Deshmukh he found
following injuries on his person:-
1.
Stab injury on chest on left middle
Exalary line of memary region, of size
1″ x 1/2″ x 1/2″. age of injury within
24 hours, caused by sharp weapon,
simple in nature.
2 Stab injury on left memary region in
between mid clavicular region. Size 1″
x 1/2″ x1/2″, simple in nature, age of
injury within 24 hours caused by sharp
weapon.
In para 3 of examination of patient
Venkatrao Kamaji Deshmukh, P.W.3 found following
injuries on his person
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1 Contused lacerated wound, six, 1/2″ x
1/2″ x 1/2″ on dorsal ospect let hand.
Age within 24 hours, simple in nature,
caused by blunt and hard object.
2 C.L.W. 1/2″ x 1/2″ x 1/2″ on left
parietal region caused within 24 hours,
caused by blunt and hard object, simple
in nature.
In para 4, P.W.3 Dr. has stated that the
injures on the person of patient Nivrutti
mentioned in certificate Exh.22 can be possible
with article 6 Jambia-cum-knife. The injuries
mentioned on the person of Venkatrao described in
certificate Exh.23 can be possible with Article
No.5 Katti by its blunt side.
12. Taking overall of the matter, I am of the
opinion that the learned trial Court has rightly
believed the evidence of the injured witnesses
and the medical evidence as also the C.A. Report
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and came to the conclusion that the accused –
appellants are guilty of the offence punishable
under Section 324 r.w. 34 of I.P.C. The
conviction of the appellants requires no
interference.
The appellants were in jail during trial for
the period from 9.12.1994 to 17.12.1994.
There are mitigating circumstances in this
case. The prosecution has not explained the
injuries on the person of the accused Anil. It
also cannot be lost sight of the fact that the
sentence has been awarded by the trial Court in
the year, 1999 whereas the appeal is being heard
in the year, 2011. There is some substance in the
contention of the counsel of the appellants that
recovery of weapons is not convincingly proved by
the prosecution. There is also some substance in
the contention of the counsel for the appellant
that there is no consistency in the evidence of
eye witnesses and also in medical evidence, that
the injuries caused are also simple in nature. I
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am, therefore, of the opinion that the ends of
justice will meet if the sentence of the
appellants is reduced to the period already
undergone.
13. In the result, the appeal is partly allowed.
The conviction of the appellants under Section
324 r.w. 34 of I.P.C., is confirmed. However, the
sentence awarded to them is reduced from S.I. for
six months, to the period already undergone by
the appellants. In so far as the order of the
trial court to pay fine of Rs.1000/- is
concerned, the same is maintained. In view of
this, their bail bonds stand cancelled.
[ S.S. SHINDE, J ]
…..
Kadam/*
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