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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.1347 of 2002
Rahul Baburao Pawar Appellant
(Org.Accused No.1)
Vs.
The State of Maharashtra Respondent
With
Criminal Appeal No.1348 of 2002
Sunil Baburao Pawar Appellant
(Org. Accused No.2)
Vs.
The State of Maharashtra Respondent
Mr.Kuldeep Patil for appellants.
Ms.S.V.Gajare, APP for State.
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CORAM: B. H. MARLAPALLE &
MRS.MRIDULA BHATKAR, JJ.
March 31, 2010.
ORAL JUDGMENT (PER B.H.MARLAPALLE,J.)
1. Both these Appeals are directed against the order of conviction and
sentence passed in Sessions Case No.300 of 2000 by the learned Ad-hoc
Additional Sessions Judge at Karad on 4/12/2002. The appellant in
Criminal Appeal No.1347 of 2002 (accused no.1) has been convicted for
the offence punishable under Section 302 of IPC and sentenced to suffer
life imprisonment. He has also been convicted for the offences punishable
under Sections 326, 324, 323 and 341 of IPC whereas the appellant in
Criminal Appeal No.1348 (accused no.2) has been convicted for the
offences punishable under Section 326 read with Section 34, Sections 324,
323 and 341 of IPC. The maximum sentence he has been awarded is of
seven years RI and fine of Rs.1000/- for the offence punishable under
Section 326 read with Section 34 of IPC on account of the assault on
Shivaji Ganpati Pawar (PW 10). Both the accused are brothers and
accused no.1 was arrested on 2/8/2000 and accused no.2 was arrested on
5/8/2000. Accused no.2 came to be released on bail for the first time by
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this Court on 25/3/2003 whereas the accused no.1 continues to be in jail as
of now and right from the date of his arrest.
2. Deceased Yashwant was the brother of Baburao and Baban and the
accused are the sons of Baburao whereas the third brother Baban died prior
to the date of the incident and his son Deepak – PW 9 along with his
mother were staying with Yashwant who was issueless and his wife was not
staying with him. Kisan – PW 4 and Shivaji – PW 10 are the cousins of
Yashwant and all these three families i.e. the family of the accused, the
complainant and Deepak were staying in the neighbourhood houses on the
opposite direction. They are the residents of village Vadoli-nileshwar in
Karad Taluka. As per the prosecution case Baburao had installed a
thrashing machine and it was causing nuisance to the other family members
and on account of that there was continuous bickering between the family
members. PW 4 and PW 10 were employed with the Maharashtra State
Electricity Board. On the date of the incident i.e. on 1/8/2000 at about 9
p.m. Baburao, the father of the accused started abusing Shivaji – PW 10
and deceased Yashwant, on account of the thrashing machine. Shivaji and
Yashwant were in their houses and after some time the accused came out
and took away their father in the house by pacifying him but after some
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time again he came out giving rise to a second altercation and his sons also
joined. After hearing these altercations some of the neighbours intervened
and separated the parties. Yashwant, the deceased, suggested to PW 10
Shivaji that these altercations had become a routine matter and, therefore, it
would be better to lodge a police complaint with Karad Police Station.
The Karad Police Station is located at a distance of about 10 Kms. from
Vadoli and, therefore, Shivaji took out his M-80 two wheeler bearing
Registration No.MH-11 6925 and deceased Yashwant was a pillion rider
and they proceeded towards Karad. When the accused heard that Shivaji
and Yashwant had proceeded to Karad to lodge a police complaint, they
took out their Rajdoot motorcycle, accused no.1 picked up an axe and
accused no.2 with accused no.1 as a pillion rider started driving his
motorcycle towards Karad police station. When PW 4 Kisan and PW 9
Deepak saw the accused following Shivaji and Yashwant, PW 4 took out
his M-80 two wheeler and with Deepak as a pillion rider followed the
accused. The railway gate was at about a distance of about 2 and ½ Kms.
from the location where the accused assaulted Yashwant and Shivaji.
Rahul gave an axe blow to Yashwant while Shivaji was holding the two
wheeler and, therefore, Yashwant fell down. Accused no.1 continued with
his assault on Yashwant and at that time accused no.2 gave a kick to the
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M-80 vehicle of Shivaji and, therefore, Shivaji fell down and at this stage
Shivaji – PW 10 was also assaulted by both the accused with an axe.
Immediately thereafter PW 4 and PW 9 arrived at the scene and PW 4
snatched the axe from Rahul’s hand and he assaulted Sunil by the said axe.
Consequently Sunil sustained bleeding injuries and Rahul – accused no.1
ran away. PW 4 and PW 9 picked up Yashwant and took him to the
Cottage Hospital at Karad on the vehicle of PW 4 at about 10 p.m. and the
doctor declared him dead. PW 10 Shivaji reached the same hospital on his
vehicle though he had also sustained bleeding injuries. Accused no.1 –
Sunil reached the police station first in point of time and recorded a
complaint and by then the police station had received a message that there
was an incident of assault near the Parle Railway Gate at about 9 p.m. and
one person had lost his life. The police went to the Cottage Hospital
around midnight. PW 4 also went to the police station and lodged his
complaint. C.R.No.123 of 2000 came to be recorded at the behest of PW 4
whereas C.R.No.124 of 2000 came to be recorded at the behest of accused
no.1. Both accused no.1 as well as PW 10 – Shivaji were sent for medical
examination to the Cottage Hospital by the police and PW 8 Dr. Mohan
Patil examined them and treated them.
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3. The dead body of Yashwant was sent for post-mortem which was
conducted by PW 6 – Dr.D. Jadhav who signed the P.M. report at Exhibit
27. The clothes of the accused as well as the deceased were seized and sent
for chemical analysis along with the other articles like axe etc. The CA
report at Exhibit 48 indicated that blood group of the deceased was “A”
and that of the accused is also “A” whereas the blood group of PW 10 –
Shivaji is “A”, PW 4 – Kisan is “O” and PW 9 – Deepak is “B”. The axe
used was found to have smeared in human blood on its blade but its blood
group could not be detected. On completion of investigation, charge-sheet
came to be filed and as the offence being triable exclusively by the
Sessions Court, the case was committed to the Sessions Court which
framed the charge on 13/7/2001.
4. It appears that the investigation in C.R.No.124 of 2000 also
continued and a charge-sheet came to be filed against the present PW 4 –
Kisan, PW 9 – Deepak and PW 10 – Shivaji and after filing of the charge-
sheet for the offences punishable under Sections 326, 341, 323, 504 and
506 read with Section 34 of IPC the case was committed to the Sessions
Court and registered as Sessions Case No.9 of 2002, which resulted in the
acquittal of all the three accused. The said order of acquittal dated
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4/12/2002 has not been challenged by the present appellants by filing a
Criminal Revision Application nor the State has filed an appeal against it
and, therefore, the order of acquittal has attained finality.
4. In the instant case the prosecution examined in all 12 witnesses with
PW 1 – Ankush Pawar, PW 2 – Kisan Tarlekar and PW 3 – Shivaji Pawar
as the panch witnesses and PW 4 – Kisan – complainant, PW 9 – Deepak
and PW 10 – Shivaji as the eye witnesses whereas PW 6 – Dr. D.D. Jadhav,
PW 7 – Dr. H.S. Joshi and PW 8 – Dr. M.Y. Patil are the Medical Officers
or private practitioners. PW 11 – Shivaji Paradke and PW 12 – Manohar
Phadatare are the police officers. The defence did not examine any witness
and in their statements recorded under Section 313 of Cr.P.C., it was
contended that on the date of the incident the accused along with their
father were sitting in their house and PW 10 – Shivaji, PW 4 – Kisan, PW 9
– Deepak and deceased Yashwant went to their house and gave abuses to
their father and pushed him. The accused, therefore, went to Karad on
their Rajdoot motorcycle to lodge a complaint with the police station. On
the same date PW 10 – Shivaji, deceased Yashwant, PW 4 – Kisan and PW
9 – Deepak had come near the railway gate and assaulted the accused and
in that incident the accused went to Karad and lodged a complaint with
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Karad Taluka Police Station. The police had given Yadi and directed them
to take injured Sunil to Cottage Hospital where he was admitted. It was
further stated that PW 4 – Kisan had filed a false complaint and the
accused were innocent.
5. It has been submitted by Mr.Patil, the learned counsel for the
accused that though the incident of assault as alleged has taken place near
the Railway Gate, it was preceded by some incidents of scuffles and abuses
between the parties between 8 to 9 p.m. on the date of the incident and both
the parties had sustained bleeding injuries, it cannot be said that the assault
sustained by deceased Yashwant was intentional and premeditated. As per
Mr.Patil even if it is held that Yashwant died on account of the assault of
axe attributed to accused no.1, there would not be any case for the offence
punishable under Section 302 of IPC against the said accused and at the
most he could be punished under Section 304 Part I or Part II of IPC. The
learned counsel also submitted that having regard to the injuries suffered
by PW 10 – Shivaji, the charge punishable under Section 326 read with
Section 34 of IPC could not be proved by the prosecution against both the
accused and at the best there may be a case of an offence punishable under
Section 324 read with Section 34 of IPC. It was pointed out that accused
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no.2 has already suffered the sentence of more than 2 and ½ years in as
much as he was taken in custody on 5/8/2000 and was released on bail by
this Court only on 25/3/2003 and till the conviction order was passed on
4/12/2002 he remained in jail. As per Mr.Patil, the sentence suffered by
accused no.2 is adequate even for the offence punishable under Section 324
read with Section 34 of IPC. He has also pointed out that there is no
evidence in support of the charge punishable under Section 341 read with
Section 34 of IPC and the testimony of the injured witness Shivaji has
suffered material contradictions on the point that M-80 driven by him was
intercepted and stopped by the accused. Mr.Patil referred to the
depositions of all the three eye witnesses and submitted that the
prosecution failed to make out any case of an offence punishable under
Section 326 of IPC against accused no.2 independently or with the aid of
Section 34 of IPC. He urged that even accused no.1 has been in custody
right from 2/8/2000 i.e. almost more than 9 and ½ years and, therefore, he
deserves to be released forthwith even if the charge punishable under
Section 304 Part I or Part II is held to be proved against him.
6. On the other hand, Ms.Gajare, the learned APP has supported the
order of conviction and sentence in its full force. As per her the incident of
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assault on the deceased is preceded by earlier clashes and as the
complainant party was fed up with such clashes initiated by the father of
the accused, they decided to file a police complaint and while they were
proceeding to the police station, accused no.1 was armed with an axe and
that itself went to show his determination to cause deadly injuries either to
PW 10 – Shivaji or deceased – Yashwant or both of them. It was submitted
by Ms.Gajare that the incident has not happened on sudden provocations
and at the same time the accused no.1 did not stop after inflicting one blow
of axe on the deceased, having regard to the number of injuries / incised
wounds that were seen on the body of Yashwant by PW 6. It was,
therefore, urged that the prosecution proved beyond reasonable doubts its
case of offence punishable under Section 302 read with Section 34 of IPC
against both the accused. However, it is to be noted that against the
acquittal of accused no.2 for the offence punishable under Section 302 of
IPC independently or under Section 302 read with Section 34 of IPC, the
State has not filed an appeal and, therefore, we cannot consider the plea of
the State against accused no.2 for his involvement in causing the homicidal
death of Yashwant. So far as the role of accused no.2 in causing injuries to
PW 10 – Shivaji is concerned, the learned APP submitted that the Medical
Certificate at Exhibit 32 clearly went to show that PW 10 had suffered a
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grave injury with sharp and hard weapon and, therefore, the prosecution
had established its case under Section 326 read with Section 34 of IPC.
She has referred to the depositions of PW 10 – Shivaji as well as the other
two eye witnesses in this regard.
7. We must also refer to an additional point raised by Mr.Patil. He
submitted that the learned trial Judge did not frame the charge under
Section 326 read with Section 34 of IPC in as much as in Issue No.4 the
word “grievous” was not mentioned which is the basic ingredient of
Section 326 of IPC. Mr.Patil, therefore, submitted that the accused could
not be convicted for an offence punishable under Section 326 read with
Section 34 of IPC and, therefore, at the most it would be a case of offence
punishable under Section 324 read with Section 34 of IPC against them for
causing injuries to PW 10 – Shivaji. Ms.Gajare, the learned APP did not
agree with this submission and it was contended that the minor error in
framing the charge or framing the issues for decision by the trial Court, did
not affect the case of the prosecution, by relying upon the provisions of
Sections 215 and 464 of Cr.P.C. She placed reliance in this regard on the
decision of the Supreme Court in the case of Dalbir Singh Vs. State of U.P.
[2004 AIR SCW 2119].
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8. PW 6 – Dr. D.D. Jadhav while in the witness box stated that he was
the Medical Officer at Cottage Hospital, Karad from 14/6/1999 to
2/8/2000. He along with Dr.M.Y. Patil conducted the post mortem of the
dead body of Yashwant and on examination he found the following injuries
(i) Incised wound on left parietal in sagital plane measuring about 4
inches x 1 inch into scalp bone deep. Left parietal bone cut in line of
incised wound. Brain matter seen coming out through wound,
bleeding was present.
(ii)Incised wound on left shoulder lateral aspect vertical 6 cm. X ½ cm.
X skin deep red in colour.
(iii)Incised wound on medial border of left scapula in interscapular
region oblique 7 cm. X ½ cm.
(iv)Abrasion on lateral aspect of left mid thigh, oblique 4 cm. X ½ cm.
Dried blood present
(v) CLW on left qu. tow tip medial aspect 2 ½ cm. X 1 cm. scaling of
the skin.
(vi)Abrasion on back left side lumber spinal.
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(vii)Abrasion on left lumber region 2 ½ inches above injury No.6
measuring about 2 cm. X ½ cm.
According to him the cause of injury nos.1 to 3 was due to sharp
object, while injury nos.4 to 7 could be caused due to hard and blunt object.
He stated that injury no.1 was fatal and the age of the injuries was within
24 hours and they were all ante mortem. On the examination of external
portion, he found fracture on left parietal region. He also found incised
wound on left parietal bone with separation of oval piece on left parietal
region of size 12 cm. X 8 cm. and piece of left parietal bone clean cut, 8
cm. of rest oval piece elevated and border irregular, brain covering meriage
cut in line of incised wound, brain matter clean cut incised wound of left
lobe of brain, Sulci cut in line of incised wound in 10 x 2 x 3 cm. deep and
hemorrhage surrounding part of brain adjacent to the wound. According to
him the cause of death of Yashwant was due to hemorrhagic shock due to
incised wound of left parietal bone and incised wound of left lobe of brain
in left parietal region. He signed the post mortem report at Exhibit 27. He
also stated that injury no.1 was sufficient to cause death of the patient in
ordinary state and the said injury could be possible by article 8 – axe
shown to him in the court. He further stated that injury no.5 could be
possible by fall on stone. In his cross-examination he clarified that injury
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nos.2 and 3 were superficial as also injury nos.4 to 7. He also admitted that
injury nos.2 to 7 could be possible in a scuffle or due to fall on stone and
stick blows. He also admitted that injury no.1 would not cause
instantaneous death which indicated that Yashwant did not die
instantaneously. The doctor also admitted that there was no facility of
operation in his hospital at the relevant time and he denied the suggestion
that the patient would have survived if immediate medical treatment was
given to him.
Having regards to the medical evidence of this witness, it is clear
that Yashwant died a homicidal death on 1/8/2000 and when he was
admitted to Cottage Hospital at Karad he was already dead. The defence
has not seriously disputed the same.
9. PW 8 – Dr.Mohan Yeshwant Patil was the Medical Officer at Cottage
Hospital, Karad from 5/6/1995 and he stated while in the witness box
before the trial Court that on 1/8/2000 he was on the night duty and the
patient by name Shivaji Ganpat Pawar was examined by him at 10.45 p.m.
and he noticed the following injuries suffered by him:
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(i) CLW right frontal parietal region `Y’ shape 1 cm. x 2 cm. scalp deep
bleeding present.
(ii) Contusion right parietal region 10 cm. in diameter tenderness
present.
(iii) Incised wound left elbow lateral aspect vertical 7 cm. x 1 cm.
muscle deep bleeding present.
(iv) Head injury to observation.
As per the said doctor Shivaji was conscious and gave a history of
assault with axe at about 10.30 p.m. at the Parle Railway Gate. Shivaji was
admitted as an in-door patient and injury nos.1 to 3 were sutured, X-ray of
injury no.3 was taken which indicated that there was a fracture of ulna left
side middle 1/3rd region. He also stated that the patient was transferred to
Krishna Hospital, Karad on 2/8/2000 at about 5 p.m. He produced the
original case papers along with X-ray report at Exhibits 31 to 35. The
doctor also stated in his examination-in-chief that injury no.3 could be
caused by blade of axe – article no.8 and injury no.1 could be possible by
any corner of blade of axe, wheres injury no.2 could be caused by hard and
blunt object. The age of the injuries was within 24 hours and considering
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the location of injury no.3 it could be caused while defending an attack. In
his cross-examination he admitted that accused no.2 – Sunil was examined
by him when brought by the police along with a Yadi and he had given
history of assault on him at about 10.45 p.m. at Parle Railway Gate. Sunil
had received an injury on his head and after his examination the following
injuries were found:
(i) Incised wound left parietal region oblique 10 cm. x 1/4th cm.
bleeding present skin deep.
(ii) Minor abrasion dorsen of left wrist three in number each of the size
1 cm. x 1 cm.
(iii) Contusion left knee anterior aspect 3 cm. x 3 cm.
He admitted that injury no.1 must have been caused by sharp and
hard object whereas injury nos.2 and 3 could be caused by hard and blunt
object and the age of the injuries was within 24 hours. Sunil was
discharged from the hospital on 5/8/2000 at about 9.30 a.m. and the nature
of injury no.1 was grievous and it could be caused by sharp edge of
muddemal axe whereas the other two injuries could be caused by blunt
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side of the axe. He also admitted that if the axe was used with force, there
could be incised wound and fracture of skull. He also admitted that injury
no.1 suffered by Shivaji could be caused by fall on the hard object like the
railway gate. He denied the suggestion that in order to suit the prosecution
case he had stated that injury no.1 could be possible by sharp edge of axe.
He also denied the suggestion that all the documents were manipulated by
him and that Kisan Ganpati Pawar had not brought patient Shivaji Pawar to
the hospital. He showed his willingness to produce the original papers, if
directed. He verified the certificates at Exhibits 34 and other papers at
Exhibit 35. He also admitted in his cross-examination that injury on the
hand of Sunil could be possible while warding off the blow.
PW 7 – Dr. Hemlata Joshi was the Medical Officer at Krishna
Hospital and she stated before the trial Court that on 2/8/2000 a patient by
name Shivaji was admitted in her hospital at about 5.45 p.m. and he was
referred by the Cottage Hospital at Karad along with a letter. The patient
had the history of assault of sword and axe and when she examined him,
the following injuries were found on his person:
(i) Sutured CLW, right frontal parietal region.
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(ii)Contusion tenderness present left forearm.
(iii) Sutured CLW near left elbow.
(iv) Contusion tenderness present, right mandibular region.
As per the said doctor cause of injury no.1 was hard and sharp object
and injury nos.2 to 4 could be caused due to hard object. The age of
injuries was within six hours and injury no.2 was grievous in nature while
rest of the injuries wee simple in nature. She further stated that X-rays of
scalp, left forearm were taken and there was no fracture of skull and
mandible, whereas there was fracture to left ulna and it was corresponding
to injury no.2. She had issued injury certificate at Exhibit 29 and the
patient was discharged on 16/8/2000. In her cross-examination she stated
that the history of assault was at about 10 p.m. at Parle Railway Gate. She
admitted that she was not a Radiologist and that the fracture of injury no.2
could be possible by fall on hard surface and at the same time all the
injuries could be caused by fall on surface. She further stated that injury
nos.1 to 4 could not be possible during a scuffle.
10. Thus the evidence of these two doctors went to show that PW 10
Shivaji had received one grievous injury and was under treatment as in-
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door patient upto 16/8/2000 i.e. for 15 days. He had sustained one injury
by sharp and hard object. Rest of the injuries were simple in nature. The
grievous injury was attributed to the axe.
11. We are, therefore, required to consider whether the prosecution
proved its case beyond reasonable doubt that accused no.1 – Rahul was the
author of the injuries sustained by Yeshwant and leading to his homicidal
death and whether the grievous and simple hurts sustained by Shivaji – PW
10 were caused by the accused.
12. PW 4 Kisan had filed FIR at Exhibit 21 and during his substantive
evidence before the Court he stated that on the date of the incident at about
9 p.m. the father of accused started hurling abuses towards his brother
Shivaji and deceased Yeshwant, on account of thrashing machine and he
was standing near the latrine adjacent to his house and at that time Shivaji
and Yeshwant were in the house. He saw the accused and their father
rushing towards him and there was an altercation between him and Deepak
on one side and their father on the other. After hearing these abuses
Laxman Pawar, Hanmant Pawar, Jagannath Pawar arrived at the scene and
separated the parties. Thereafter his cousin Yeshwant stated to Shivaji that
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instead of hearing these abuses, it would be better to lodge a police
complaint. Shivaji took out his M-80 two wheeler and Yashwant went with
him as a pillion rider to Karad police station. This was seen by the accused
and their father and, therefore, they got annoyed and said if police
complaints were filed against them, they would have to do something.
Thereafter the accused brought their motor cycle and chased Shivaji and
Yashwant. Sunil was driving the motorcycle while Rahul was a pillion
rider with an axe in his hand. When PW 4 saw this, he also started his
M-80 vehicle along with Deepak as a pillion rider and chased the accused.
At about 10-30 p.m. they reached the Parle Railway Gate which was
closed. He saw that Shivaji was caught hold by Sunil and Rahul was
assaulting Shivaji. The vehicles of Shivaji as well as accused were lying
on the ground and their headlights were switched off. Yashwant was also
lying on the ground. He parked his vehicle and so as to save Shivaji he
snatched the axe from the hand of Rahul. Sunil rushed towards him and in
order to save himself and his brother Shivaji, he assaulted Sunil with the
axe and at this time Sunil fell down. Rahul ran away in the sugarcane field
and Yashwant Pawar was lying injured in a pool of blood on north side of
the railway gate and had sustained head injury. Shivaji also had sustained
head injury and his hand was fractured. He had seen Rahul beating Shivaji.
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Yashwant was unconscious and, therefore, with the help of Deepak he took
Yashwant on his vehicle to the Cottage Hospital. The axe snatched from
Rahul was also carried with them and after the doctor had declared
Yashwant dead, he went to Karad Police Station between 00-00 hours to
00.30 hours. PW 11 Shivaji Paradke recorded his statement i.e. FIR
(Exhibit 24) and he also produced the axe before the police. His clothes
were stained with blood and, therefore, he produced the same before the
police. He also stated that the clothes of Shivaji as well as Deepak had
blood stains and were produced before the police. He identified the
muddemal article 8 as the same axe which he had snatched from Rahul and
produced before the police station. In his cross-examination he admitted
that for the last 15 to 20 years there were continuous quarrels between the
families of the complainant and the accused and the thrashing machine was
also a reason for the said quarrel. However, this statement did not find
place in the FIR. He also admitted that at the first incident which had
happened in front of his house, there was altercation by fist blows and it
was not for the first time. He denied the suggestion that Yashwant and
Shivaji were injured during the scuffle at the house and Shivaji had not
informed the other family members that they were going to the police
station. He also admitted that Shivaji and Yashwant proceeded towards the
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police station between 9 to 9.30 p.m. and about 5 to 10 minutes time was
required to reach the Parle railway gate on vehicle and that there was no
street light from his house upto the Parle Railway gate except the portion of
Maniknagar. On the main point of the occurrence near the Parle railway
gate, there was nothing brought out in his cross-examination so as to
impeach the details stated by him so as to avoid any further assaults on
Shivaji. This witness has not attributed any assault by axe by accused no.2
on either Yashwant or Shivaji.
13. Now coming to the second eye witness i.e. PW 9 – Deepak Pawar, as
noted earlier he was a pillion rider along with Kisan. He stated in the
witness box that on account of installation of the thrashing machine the
husk used to be a nuisance to the families of the complainants as well as
Yeshwant and, therefore, the relations between the parties were strained
and during the harvesting period normally there used to be quarrels
between the parties. On 1/8/2000 at about 9 p.m. while he was in the
house, the father of the accused abused Yashwant and Shivaji and,
therefore, they went towards the accused. There was an altercation and
they started pushing each other. Therefore he came on the scene and there
was altercation between him and the accused. The neighbours like Maruti
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Pawar, Laxman Pawar, Hanmant Pawar intervened and the parties were
separated. On the suggestion of Yashwant Pawar, Shivaji and Yashwant
proceeded towards Karad Police Station on the vehicle of Shivaji which
was being driven by Shivaji with Yashwant as the pillion rider. At that time
accused also started on their Rajdoot motorcycle towards Karad and
accused no.1 was sitting on the pillion seat with an axe in his hand and,
therefore, he also with Kisan Pawar started on his vehicle and Kisan was
driving the same. When they reached near the Parle railway gate he had
seen accused Sunil had parked his motorcycle in front of M-80 of Shivaji
and obstructed them. Accused Rahul got down from the motor cycle and
gave one axe blow with sharp edge on Yashwant’s head, Yashwant fell on
the road side and again Rahul gave two axe blows on Yashwant’s back and
left leg near toe. He also saw that Sunil had caught hold of Shivaji and he
gave a kick to the vehicle of Shivaji. Thereafter accused gave axe blow on
Shivaji’s head and from its sharp edged side. He also gave second axe
blow on the left arm of Shivaji and at that time PW 4 – Kisan got down and
snatched the axe from Rahul’s hand. Accused no.2 – Sunil, therefore,
rushed towards Kisan and Kisan gave one blow of axe on Sunil’s hand.
During the scuffle Sunil fell down on the railway track and sustained head
injury and accused Rahul ran away. The doctor declared him dead and
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Shivaji was admitted in the hospital and thereafter Kisan went to the police
station and lodged the complaint. He also stated that their clothes were
stained with blood as they had lifted Yashwant and brought him to the
hospital. He also admitted that he was arrested in the same night on
account of the cross complaint filed by the accused and his statement was
recorded. In his cross-examination he admitted that at the time of the
incident construction of his house was going on and there was a dispute
between the father of the accused and him on that count and there was no
partition effected in writing. His father Baban was the brother of Baburao
and Yashwant. The accused were threatening to stop the construction. He
also admitted that prior to the incident there was a complaint to the police
station and despite such a complaint, harassment at the hands of the
accused did not stop. He also admitted that whenever such quarrel had
taken place, there used to be a meeting between him, Kisan and Yashwant.
While Baburao was abusing there was altercation between him, Shivaji,
Kisan and the accused. In his cross-examination, on the incident that had
taken place near the Parle railway gate and as was described by this witness
there was nothing to shatter the said testimony or to doubt its credibility.
He also admitted that the neighbours who had gathered did not obstruct the
accused who was sitting on the motorcycle with an axe and the accused
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followed Shivaji and Yashwant within 2-3 minutes. In his cross-
examination he stated that while Shivaji was caught by Sunil, Rahul Pawar
had given a blow on Shivaji’s head with the axe and this happened when
Shivaji was sitting on his M-80. We have thus noted that even this eye
witness has not stated that accused no.2 assaulted Shivaji with an axe and
the assault of axe on Shivaji is attributed to accused no.1 Rahul.
Now coming to the injured eye witness Shivaji Pawar – PW 10 he is
the star witness of the prosecution and he was the best witness so far as
assault on Yashwant was concerned. He stated before the Court that on the
date of the incident at about 9 p.m. he and Yashwant were chitchatting in
front of his house and at that time the father of the accused started giving
abuses to them while standing in front of his house. He, therefore, went
towards Baburao, father of the accused and asked him the reasons for
giving abuses. He tried to pacify him but there was no effect and he started
giving more abuses. At that time accused no.1 was standing near his father
and told Shivaji that the father had consumed liquor and it was not
desirable to continue with further talk. Hence Rahul took his father to the
house and Shivaji and Yashwant went to their houses. While he was
watching TV, again he heard noise of quarrel from outside and he noticed
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that there was exchange of abuses between his brothers Kisan, Yashwant,
Deepak on one side and Baburao and his two sons on the other side. This
led to some altercations between the parties and, therefore, the neighbours
like Maruti Pawar, Laxman Pawar and Hanmant Pawar intervened and
separated. Thereafter the accused went to their house along with their
father. He told Yashwant that these altercations were taking place on every
day and, therefore, it would be desirable to file a police complaint. He took
out his M-80 vehicle and Yashwant sat behind it. At about 9.30 p.m. they
reached the Parle railway gate and were followed by both the accused on
their Rajdoot motor-cycle. They were overtaken. Accused no.2 was
driving the motorcycle and accused no.1 was the pillion rider with an axe
in his hand. The railway gate was closed and another motorcycle was
coming from behind. The accused had parked their motorcycle across the
railway gate and while he was taking his vehicle on the small road, so as to
cause obstruction accused put their vehicle in front of his vehicle and
stopped him. At that time Rahul got down from the motorcycle, walked
towards Shivaji and gave an axe blow from sharp side on the head of
Yashwant due to which Yashwant fell down. Sunil left his vehicle and
rushed towards Shivaji’s vehicle and gave a kick due to which Shivaji’s
vehicle also fell down. Even after Yashwant fell down, Rahul continued to
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give axe blows on his back and thereafter Sunil caught hold of Shivaji and
threatened that Yashwant would not survive and he would not escape.
Rahul started to assault by axe to Shivaji and though he made attempts to
avoid 2 – 3 axe blows, one axe blow was hit on his right shoulder and one
on forehead. He also stated that Rahul assaulted with axe blows from blunt
side on his right chin and left wrist. In the mean while his brothers Kisan
and Deepak arrived there and Kisan snatched the axe from Rahul’s hand
and at that stage Rahul ran away. Accused Sunil rushed towards Kisan and,
therefore, Kisan assaulted Sunil by axe on his left hand as a result of which
Sunil fell down on the railway track. Yashwant was lying unconscious
with bleeding injuries on his head. He was, therefore, taken to the Cottage
Hospital by Kisan and Deepak. Shivaji also reached the said hospital.
For one night Shivaji was in the Cottage hospital and on the next day he
was shifted to Krishna hospital for further treatment. In his cross-
examination he stated that at the first instance when Baburao was giving
abuses, except his sons nobody was present and at that time Baburao had
consumed alcohol. The distance between his house and Baburao’s house
was about 150 to 170 ft. When Baburao came back for the second time
Kisan was there and Baburao started giving abuses. He denied the
suggestion that on account of the abuses given by Baburao, Kisan had
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assaulted him. In the second scuffle Kisan, Deepak and Yashwant were
involved and Kisan had sustained abrasions on his knee and he had noticed
any weapon in the hands of Baburao or his two sons. It is thus clear from
the depositions of this witness as well that at the time of the incident, the
railway gate was closed, the axe blows were given to him by Rahul and
Sunil had merely kicked his vehicle. Certain contradictions were brought
about by the defence in the cross-examination of this witness but so far as
the main incident is concerned, no material contradictions or improvements
were pointed out or established.
14. It has come in the evidence of PW 12 – Manohar Phadtare that on
5/8/2000 after Sunil was discharged, he came to be arrested under the arrest
panchanama and on 8/8/2000 the seized article axe was sent to the Medical
Officer for giving an opinion. PW 5 – Murlidhar Magdum had inspected
the vehicles and submitted his report at Exhibit 25. The report indicated
that there was some damage to the vehicle of the accused. He further
stated that on 14/8/2000 he had handed over the investigation to Shri
Shintre, Dy. S.P. and after completion of the investigation Mr.Shintre had
submitted the charge-sheet. In his cross-examination he admitted that
when Sunil came to the police station he noticed certain injuries sustained
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by him. He also admitted that PW 4 – Kisan was not arrested on the same
night though he was an accused in C.R.No.124 of 2000.
15. As noted earlier Sessions Case No.9 of 2002 arising from C.R. No.
124 of 2000 filed by the present accused has resulted in acquittal and the
said order has reached finality. PW 4, PW 9 and PW 10 were the three
accused in the said case and faced the trial for offences punishable under
Section 326 read with Section 34, Section 323 read with Section 34,
Section 341 read with Section 34, Section 504 read with Section 34 and
Section 506 read with Section 34 of IPC. They came to be acquitted of all
the charges. The trail Court held that the prosecution could not prove that
Kisan Pawar in furtherance of his common intention along with Shivaji and
Deepak had caused grievous hurt, simple hurt to Sunil and they had
restrained Rahul. These findings are relevant while considering the instant
appeals and more so because Mr.Patil, the learned counsel appearing for
the accused submitted that the prosecution failed to explain the injuries
sustained by accused no.2 – Sunil and that vitiated the trial. These
submissions have no force in view of the order of acquittal recorded in
Sessions Case No.9 of 2002. It is clear that both the parties had
approached the police station, filed complaints against each other and both
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the cases were tried together. Hence no failure could be attributed to
prosecution in regard to the injuries sustained by accused no.2 – Sunil in
the incident and, therefore, the trial cannot be said to have vitiated.
16. The analysis of the oral testimony of all the three witnesses
examined by the prosecution in Sessions Case No.9 of 2002, in our
opinion, indicates that no reliable evidence was placed before the trial
Court in support of the offence punishable under Section 341 read with
Section 34 of IPC. At the same time it has been proved beyond reasonable
doubt that Yashwant died a homicidal death and the death occurred on
account of the injuries sustained by him in the attack inflicted on him by
accused no.1 and that too with an axe. The medical evidence as came
through PW 6 Dr.D.D. Jadhav, Yashwant had multiple injuries which were
attributed to a sharp weapon and it is not that one blow was given to
Yashwant and he fell down and did not sustain any other injury at the hands
of the accused. Even otherwise the evidence clearly went to show that the
accused were prepared and accused no.1 was armed with an axe right at the
first time when they started on their motorcycle and proceeded towards
Parle railway gate. Yashwant was unarmed and so was Shivaji. The
common intention was clear and that too to inflict deadly injuries. It is not
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the defence case that there was any provocation and that they acted in their
self defence.
Section 215 of Cr.P.C. states that no error in stating either the offence
or the particulars required to be stated in the charge, and no omission to
state the offence or those particulars, shall be regarded at any stage of the
case as material, unless the accused was in fact misled by such error or
omission, and it has occasioned a failure of justice. Section 464 of the said
Code deals with the effect of omission to frame, or absence of, or error in,
charge. Sub-section (1) of Section 464 states that no finding sentence or
order by a Court of competent jurisdiction shall be deemed invalid merely
on the ground that no charge was framed or on the ground of any error,
omission, or irregularity in the charge including any misjoinder of charges,
unless, in the opinion of the Court of appeal, confirmation or revision, a
failure of justice has in fact been occasioned thereby. If the submission
made by Mr.Patil on the error in framing the charge and on account of the
absence of the word “grievous” is accepted, it was necessary to point out
that the same had caused failure of justice so as to support his contentions
that the accused could not be convicted for an offence punishable under
Section 326 read with Section 34 of IPC. On the contrary the record shows
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that they were made aware of the grievous injuries sustained by PW 10 –
Shivaji and multiple injuries sustained by Yashwant. Injury no.1 resulted
in his death, whereas injury nos.2 and 3 were caused by sharp weapon,
though superficial. Shivaji remained in the hospital for about 15 days. The
medical certificates were placed on record and the doctors were cross-
examined by the defence. We are, therefore, of the considered view that by
the error in framing the charge by not adding the word “grievous”, there is
no element of failure of justice that has occasioned in the instant case. The
decision in the case of Dalbir Singh (Supra) supports the prosecution case.
However, none of the three eye witnesses have attributed any
specific role to accused no.2 in causing a grievous injury to Shivaji and
with an axe and in that view of the matter the sentence of seven years
awarded by the trial Court to accused no.2 is not justifiable, though he
shared the common intention to cause injuries to Yashwant as well as
Shivaji. At the same time, the prosecution case and as upheld by the trial
Court against accused no.1 for the offences punishable under Section 302
and Section 326 read with Section 34, Section 324 read with Section 34
and Section 323 read with Section 34, does not call for any interference.
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17. In the premises these appeals succeed partly and the following order
is passed,
ORDER
(i) The order of conviction and sentence recorded by the Ad-hoc
Additional Sessions Judge, Karad in Sessions Case No.300 of 2000
for the offence punishable under Section 341 read with Section 34 is
hereby quashed and set aside.
(ii)The order of conviction and sentence recorded against accused no.1
– Rahul Baburao Pawar for the offences punishable under Section
302, Section 326 read with section 34, Section 324 read with Section
34 and Section 323 read with Section 34 of IPC is hereby confirmed.
(iii) The order of conviction recorded against accused no.2 – Sunil
Baburao Pawar for the offences punishable under Section 326 read
with Section 34, Section 324 read with Section 34 and Section 323
read with Section 34 of IPC is hereby confirmed. However, he is
sentenced to suffer RI for the period he has already undergone. He
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is not required to suffer any further imprisonment on any of the
charges he has been convicted by us and hence his bail bonds stand
cancelled.
(iv) Accused no.1 shall be entitled for set off, if any, under Section 428
of Cr.P.C.
(MRS.MRIDULA BHATKAR, J.)
ig (B. H. MARLAPALLE, J.)
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