Bombay High Court
Haridas Kisan Hepte And Another vs The State Of Maharashtra on 28 February, 2019
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.31/2003
1. Haridas Kisan Hepte,
aged 21 years.
2. Kisan Balaji Hepte,
aged 44 years,
Both r/o Kharmat, Dist. Chandrapur. .....APPELLANTS
...V E R S U S...
The State of Maharashtra through
Police Station Officer, P.S. Pombhurna,
Dist. Chandrapur. ...RESPONDENT
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Mr. R. Khemuka, Advocate for appellants.
Mr. A. M. Joshi, A.P.P. for respondent.
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AND
CRIMINAL APPEAL NO.260/2003
1. Bhujang s/o Laloji Pendor,
aged 33 years.
2. Kawadu s/o Dauji Madavi,
aged 35 years,
3. Rajeshwar s/o Laloji Pendor,
aged 31 years,
All r/o Kharmat, Dist. Chandrapur. .....APPELLANTS
...V E R S U S...
The State of Maharashtra through
Police Station Officer, P.S. Pombhurna,
Dist. Chandrapur. ...RESPONDENT
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Mr. R. P. Joshi, Advocate for appellants.
Mr. A. M. Joshi, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 28.02.2019
ORAL JUDGMENT
1. These two appeals are decided by this common judgment in view of the fact that these two appeals arise out of judgment and order of conviction dated 31.12.2002 in Sessions Case No.25/2001. By the impugned judgment, the appellants in these two appeals are convicted for an offence punishable under Sections 147, 148, 149, 324, 304-II of the Indian Penal Code (IPC). Their sentence for conviction under Section 147 of the IPC is rigorous imprisonment for one year and to pay a fine of Rs.300/-, under Section 148 of the IPC is rigorous imprisonment for one year and to pay a fine of Rs.300/-, under Section 149 of the IPC is rigorous imprisonment for one year and to pay a fine of Rs.300/-. For an offence under Section 324 of the IPC sentence is rigorous imprisonment for one year and to pay a fine of Rs.300/- and for an offence under Section 304-II of the IPC, sentence is for rigorous imprisonment for eight years and to pay a fine of Rs.300/-. All the sentences are directed to run concurrently. ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 :::
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2. Criminal Appeal No. 31/2003 is filed by accused no.2- Kisan and accused no.3-Haridas. They are represented by Mr. R. S. Khemuka, Advocate. Criminal Appeal No. 260/2003 is filed by accused no.1-Bhujang, accused no.6-Kawadu and accused no.9- Rajeshwar. They are represented by Mr. R. P. Joshi, Advocate. The State is represented by Mr. A.M. Joshi, A.P.P. In both these appeals, appellants will be referred to by their position in the trial Court.
3. In Sessions Case No.25/2001, charge was framed against in all 14 accused persons including these five persons in these two appeals.
Charge was that on 21.10.2000, they being members of an unlawful assembly and in prosecution of common object of the said assembly to assault and kill Gangaram and other injured persons, committed an offence of rioting under Section 147 of the IPC. They were also charged for an offence punishable under Section 148 of IPC for using deadly weapons to cause death. They were also charged that they being members of unlawful assembly and in prosecution of their common intention and object to assault ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 4 apeals31.260.03.odt the injured persons and kill Gangaram, which they committed with said common object, they are charged for an offence under Section 149 of the IPC. They are also charged for causing hurt to Gangaram Gedam, Sau. Vimal alias Suman Gangaram Gedam, Raghunath Gedam and Sau. Vimal Raghunath Gedam, thereby they have committed an offence punishable under Section 323 and 324 of the IPC. They are also charged for wrongfully confining prosecution witness Sunil Gangaram Gedam, thereby committing an offence under Section 342 of the IPC. They are also charged for committing murder of Gangaram, thereby committing an offence under Section 109 and 302 of the IPC.
After a full dress trial, learned Judge of the Court below acquitted all the accused persons charged for an offence under Section 302 of the IPC. No appeal is preferred against that order of acquittal. Except the appellants, other accused persons are also acquitted of all offences for which they were charged and their acquittal has also attained finality. In view of above, all the appellants-accused are before this Court.
4. Common thread of submission of both the learned counsel in these two appeals is that the prosecution has not proved ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 5 apeals31.260.03.odt its case beyond reasonable doubt about the homicidal death of Gangaram. Their primary attack to the prosecution case in the present appeals is on that issue alone. They submitted that if the prosecution could not prove beyond reasonable doubt about the nature of death of Gangaram that he met with homicidal death, their conviction for an offence under Section 304-II of the IPC must go. In order to buttress this submission, they have invited my attention to medical evidence namely; evidence of Dr. Shankar Patil (PW10) who has conducted autopsy over dead body and notes of post mortem Exh.-145. They also relied on the authoritative pronouncements of the Hon'ble Apex in Thomaso Bruno and anr. Vs. State of Uttar Pradesh; reported in (2015) 7 SCC 178,; Satish Nirankari .Vs. State of Rajasthan; reported in (2017) 8 SCC 497; and Ananda Poojary .Vs. State of Karnataka; reported in (2015) 1 SCC 235. They submitted that if evidence of Dr. Patil (PW10) is evaluated in the light of the aforesaid judgment then according to them, the prosecution case musts fail qua their punishment and sentence under Section 304-II IPC. Submissions were not advanced in respect of their conviction and sentence on other offence. They submitted that even if they are found to be guilty, they have already suffered sufficient jail ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 6 apeals31.260.03.odt punishment for those offences. They, therefore, prayed for passing the order in their favour.
Per contra, Mr. Joshi, learned A.P.P. would submit that in view of evidence of Sunil (PW3), Vimal (PW4), another Vimal (PW5) and Raghunath (PW6), it is crystal clear that appellants were members of unlawful assembly which was formed in the courtyard of accused no.1-Bhujang and with common object to commit murder of Gangaram. They made murderous assault on him. He also submitted that version of these prosecution witnesses and their injury certificates clearly show that they were assaulted and, therefore, their punishment for an offence under Sections 147, 149 and 323 of the IPC is justified. It is the submission that insofar as Section 304-II of the IPC is concerned, since the doctor noticed congestion in both lungs, that shows that deceased was strangulated and therefore opinion of the Doctor that cause of death was asphyxia due to strangulation with head injury is required to be given due weightage. He, therefore, submitted that the appeals be dismissed.
5. Criminal law was set into motion by Sunil (PW3) by lodging report at Police Station, Pombhurna at 21.10.2000. His ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 7 apeals31.260.03.odt oral report is at Exh.-128. As per oral report, there is a group politics in the village. There was immersion of Bhulai idol in the village before 2-3 days. At that time, accused no.1-Bhujang and his companions belonging to opposite group in the village had a quarrel. It is also stated that on 21.10.2000 at about 7.30 in the night, as usual he went to Pan Kiosk for kharra. At that time, accused no.1-Bhujang, accused no.3-Haridas and accused no.6- Kawadu were sitting on the road. They were discussing about quarrel that took place between them with his father and on noticing first informant's presence, accused no.2-Kisan stated that Gangaram's son has come to the pan stall and he should be killed. The FIR further states that other persons, who were named in the FIR, lifted him and took in the courtyard of accused no.1-Bhujang and started beating by giving fist blows. It also reported that some of the accomplices of accused no.1-Bhujang were standing on the road by holding sticks. It is reported that on hearing shouts, Sunil's father Gangaram and mother Vimal (PW4) came there. Thereafter, accused persons left him and caught hold of his parents and started beating on the road. Taking that opportunity, first informant ran away from the spot and taking help of one Dilip, he came to Police Station and lodged the report. ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 :::
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6. On the basis of the FIR, a crime was registered at Police Station, Pombhurna vide Crime No.34/2000 for an offence punishable under Section 147, 149, 323, 324, 302 of the IPC against the convicted accused and acquitted the accused. The investigation was conducted by PSI Dwarkaprasad Mishra (PW13). He conducted inquest panchanama, Exh.-93 on 22.10.2000 and they sent dead body of Gangaram for post mortem. All steps were taken by him to conduct and complete investigation and after investigation was over, final report was filed in the Court of law.
7. After case was committed to the Court of Sessions, learned Judge framed the charge. In order to prove its case, the prosecution has examined in all 12 witnesses and also relied on various documents which were duly proved during the course of trial. Statement of accused persons were recorded under Section 313 of the Code of Criminal Procedure and their defence was that there was a scuffle in view of political rivalry between two groups and in that, the deceased fell down, resulting into his death accidentally. They also examined three defence witnesses. ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 :::
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8. Keshav (PW1) has acted as pancha on inquest panchanama at Exh.-94, seizure memo in respect of seizure of clothes of deceased at Exh.-95. He also acted as pancha for seizure of clothes of Sunil (PW3) at Exh.-98, Vimal (PW4) at Exh.97 and Raghunath (PW6) at Exh.-96. Namdeo (PW2) is a pancha in respect of seizure of clothes of accused persons. Clothes of accused no.1-Bhujang are seized under seizure memo at Exh.- 103, accused no.9-Rajeshwar at Exh.-104, accused no.3-Haridas at Exh.-105, accused no.5-Sainath at Exh.-106, accused no.2-Kisan at Exh.-107. He also acted as pancha in respect of statement of accused No.1-Bhujang leading to discovery of weapon. Admitted portion of statement of accused no.1-Bhujang is at Exh.-108 and recovery of stick is at Exh.-109. Similarly, he acted as pancha on memorandum statement of accused no.9-Rajeshwar. Admitted portion of statement of accused no.9-Rajeshwar is at Exh.-110 and recovery panchanama is at Exh.111. Admitted portion of statement of accused no.3-Haridas is at Exh.-112 and recovery panchanama is at Exh.113. Admitted portion of statement of accused no.2-Kisan is at Exh.-114 and recovery panchanama is at Exh.115. Memorandum statement of accused no.5-Sainath is at Exh.-116 and recovery panchanama is at Exh.117. Memorandum ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 10 apeals31.260.03.odt statement of accused no.6-Kawadu is at Exh.118 and recovery panchanama is at Exh.-119.
9. Saraswatibai (PW7) was examined, however, she turned hostile and her evidence is of no use for the prosecution. Evidence of Shrihari (PW8) shows that he communicated the incident of lifting away of Sunil (PW3) from pan shop to the courtyard of accused no.1-Bhujang to the parents of Sunil and Vimal (PW4), another Vimal (PW5) and Raghunath (PW6).
10. In respect of the homicidal death, the prosecution is heavily relying on evidence of Vimal (PW4) widow of deceased Gangaram, another Vimal (PW5) who is aunt of first informant Sunil and Raghunath (PW6) younger brother of the deceased. Though Sunil (PW3) has reported the matter to police station in respect of assault and also that the deceased and other prosecution witnesses were assaulted by accused persons, his evidence does not further the prosecution case in respect of death of Gangaram.
11. Evidence of widow of Gangaram, Vimal (PW4) would show that after it was revealed that Sunil is being lifted from pan ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 11 apeals31.260.03.odt shop to the courtyard of accused no.1-Bhujang and he is being beaten there, her sister in law Vimal (PW5) went towards the house of accused no.1-Bhujang to notice that her son Sunil was on the ground and accused no.1-Bhujang, accused no.9-Rajeshwar and acquitted accused Sainath were on his chest and they were beating him. At that time, her husband, deceased Gangaram and her brother in law Raghunath came to the spot. Her evidence would show that accused persons involved in these two appeals started assaulting Gangaram and Raghunath by lathi-kathi. Thereafter, accused-Ramu exhorted that they shall not leave Gangaram and on that accused no.1-Bhujang brought a rope from his house and the said was put around the neck of Gangaram. His legs were also tied by rope and thereafter accused no.1-Bhujang, accused no.9-Rajeshwar, accused no.6-Kawadu, accused no.2- Kisan and accused no.3-Haridas, pulled the rope from neck side. It is also stated that she and her sister in law were also tied by rope by the acquitted accused Mukunda and the other acquitted accused persons.
Evidence of another Vimal (PW5), sister in law of the deceased, is also on the same line of evidence of Vimal (PW4). ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 :::
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12. As per the evidence of Raghunath (PW6), when he, deceased Gangaram and both Vimal went to the spot after getting information from Shrihari that he was beaten by accused no.1- Bhujang, accused no.6-Kawadu, accused no.9-Rajeshwar by stick on his leg. His evidence also shows that deceased Gangaram was beaten by stick by accused no.1-Bhujang, accused no.9- Rameshwar, accused no.6-Kawadu and thereafter accused no.1- Bhujang brought rope, accused no.9-Rajeshwar and accused no.6- Kawadu put rope around neck of Gangaram and they pulled rope.
13. This is ocular evidence which is relevant to see as to whether prosecution has proved its case in respect of the homicidal death.
14. So far as evidence of Raghunath (PW6) is concerned, it is absolutely clear that this prosecution witness has not attributed any role to accused no.2-Kisan and accused no.3-Haridas in respect of strangulation of Gangaram.
15. If evidence of both Vimal (PW4) and (PW5) is to be accepted then it will show that these five accused persons pulled ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 13 apeals31.260.03.odt the rope that was put around neck of Gangaram. If their evidence is to be accepted then it is crystal clear that five persons were using full force to pull the rope, which was put around the neck of Gangaram. In view of the aforesaid ocular evidence, it will have to be seen whether their version finds support from the medical evidence.
16. On 22.10.2000, Dr. Shankar Patil (PW10) received a letter from Police Station Officer, Pombhurna in respect of conducting post mortem of deceased Gangaram. Said requisition letter is at Exh.-144. Thereafter, Dr. Patil has performed autopsy over the dead body and found following injuries:
i) Contusion right frontal area size 2 inch x ½ inch.
ii) Contusion over right zygomatic area size ½ inch x ½ inch.
iii) Superficial abrasion over chest sternal angle on right side.
iv) Superficial abrasion on right side of elbow joint.
v) Superficial abrasion on left shoulder joint on anterior aspect.
vi) Superficial abrasion on left side of the neck."
The doctor also found following internal injuries after opening the dead body.
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According to the opinion of Dr. Patil, cause of death was asphyxia due to strangulation with head injury.
Learned A.P.P. has heavily relied on finding of the autopsy surgeon regarding internal injuries to point out that the death was due to asphyxia and also found the head injuries.
17. In Satish Nirankari Vs.State of Rajasthan; cited supra, in paragraph 38, Hon'ble Apex Court found that if death is due to strangulation then fracture of larynx and trachea and hyoid bone was a must. Paragraph 38 of the said judgment reads thus:
"38. Coming to the cause of death, learned counsel for the appellant had argued before us, as well as in the High Court, that as per Modi's Medical Jurisprudence & Toxicology there are 16 main distinctions in death caused by hanging or strangulation. According to medical evidence second ligature mark was ending towards back of the neck and it was oblique going upwards and ligature mark was shining. The hyoid bone was intact there was no fracture of larynx and trachea. There were no scratches, abrasions and bruises on face, mouth and ears. There were no abrasions and ecchymosis around about the edges of ligature mark.::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 :::
15 apeals31.260.03.odt Subcutaneous tissues under ligature mark were white, hard and glistering. There were no injuries to muscles of neck. The saliva was dribbling. If the death would have been strangulation then fracture of larynx and trachea and hyoid bone was a must, there should have been scratches abrasions and fingernail marks and bruises on the face, neck and other parts of the body. Saliva would not have dribbling, ligature mark would have been horizontal and not oblique, it would have lower down in the neck and not upwards to the chin. There should have been abrasions and ecchymosis round about the edges of the ligature marks. Subcutaneous tissues should have ecchymosed there should have been some injuries to muscles of neck carotid arteries, internal coat should have been ruptured, whereas there was no such rupture. The prosecution failed to prove that the cause of death was homicidal. Dr. S.K. Pathak (PW-3) did not say that death was homicidal in nature. Post-mortem Report (Ex. P-4) also does not say that it was homicidal. "
In Thomaso Bruno and anr. Vs. State of Uttar Pradesh; cited supra, in paragraph 37, Hon'ble Apex Court has reproduced symptoms of strangulation as stated in Modi's Medical Jurisprudence and Toxicology and those are reproduced below:
"37. Considering post-mortem reports Exts Ka-10 and Ka-11 and the evidence of PWs 10 and 11, in our view, reasonable doubts arise as to the cause of death due to ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 16 apeals31.260.03.odt asphyxia as a result of strangulation. Let us consider the injuries found on the body of deceased Francesco Montis vis-a-vis symptoms of strangulation. As per Modi's Medical Jurisprudence And Toxicology 24th Edition. 2011, page No.453 the symptoms of strangulation are stated as under:-
"(b) Appearances due to Asphyxia.-The face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure blood issues from the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.
(ii) Internal Appearance.- The neck and its structures should be examined after removing the brain and the chest organs, thus allowing blood to drain from the neck to the blood vessels. There is extravasation of blood into the sub-cutaneous tissues under the ligature mark or finger marks, as well as in the adjacent ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 17 apeals31.260.03.odt muscles of the neck, which are usually lacerated.
Sometimes, there is laceration of the sheath of the carotid arteries, as also their internal coats with effusion of blood into their walls. The cornua of the hyoid bone may be fractured also the superior cornua of thyroid cartilage but fracture of the cervical vertebrae is extremely rare. These should be carefully dissected in situ as they are difficult to distinguish from dissection artefacts in the neck."
(emphasis in original)
18. In the light of the aforesaid observations of the Hon'ble Apex Court, the Court will have to scrutinize evidence of Dr. Patil (PW10). During the course of evidence, Dr. Patil admitted that there was no fracture of larynx, trachea bronchi, hyoid bone. He also admitted that he did not notice any ligature marks on thorax. It is also admitted during his cross-examination that in case of strangulation, ligature marks on the neck are must. In this context, Hon'ble Apex Court in Thomaso Bruno and anr. Vs. State of Uttar Pradesh; supra, in paragraph 40, ruled as under:
"40. The courts, normally would look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 18 apeals31.260.03.odt perfunctory and unsustainable. We agree that the purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion but such report is not a conclusive one. This Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. As discussed earlier, serious doubts arise about the cause of death stated in the post-mortem reports."
19. In the light of the cross-examination and findings as noted in the post mortem report, there was no fracture of larynx, trachea bronchi, hyoid bone. In my view, it completely bellies the version of Vimal (PW4) and other Vimal (PW5) that five persons pulled the rope that was put around the neck of the deceased. When five persons were pulling the rope, that was put around the neck of deceased, it could be easily gathered that greater force was applied. If that be so, there ought to have been fracture of the hyoid bone, which is not that hard compared to other bones like skull, etc.
20. Exh.-95 is seizure memo under which a rope having 70 ft. length, one knot at a distance of 5 to 10 ft., one loop at the ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 ::: 19 apeals31.260.03.odt distance between 25 to 30 ft. and another loop at a distance of 55 to 60 ft. Though, said rope was seized, for the reason best known to the prosecution, the said was not sent for scientific examination. Non referral of the rope to chemical analyser, in my view, require to draw an inference against the prosecution. Had the said rope was sent to chemical analyser and if that was used in commission of offence, the chemical analyser would have noticed tissues, blood, etc on the rope.
21. The Chemical Analyser's report, Exh.-145 does not show that external injuries found on the dead body were ante mortem injuries. It is to be noted here that though the incident was reported to police on 21.10.2000, the inquest was performed under inquest panchanama Exh.-94 only on 22.10.2000 and till that time, body was lying in the courtyard of accused no.1- Bhujang. Though suggestion was made to the autopsy surgeon which he has denied that these injuries were not ante morten, however, one fact remains that post mortem was performed on 22.10.2000 and evidence of Doctor was recorded on 13.08.2002. This also has its own importance.
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22. It is an admitted position that there are two groups in the village and in her cross-examination Vimal (PW4) was required to admit that scuffle took place at the spot of incident. The accused persons have also examined three defence witnesses. Viktu (DW3) is a Police Constable. His evidence would show that accused no.1-Bhujang gave report in respect of the incident. He proved the copy of station diary, which is at Exh.-217. Dr. Deepak Khobragade (DW2) is the doctor who has examined injured accused no.1-Bhujang. He has proved injury certificate of accused no.1-Bhujang which is at Exh.-215. It shows that accused was having injury in the nature of contusion and abrasion over back, left infrascapula, etc.
23. Thus, aforesaid reappreciation of the prosecution case allows me to record a finding that the prosecution has not proved nature of death of Gangaram as homicidal one beyond reasonable doubt. If that be so, conviction of appellants in these two appeals for an offence under Section 304-II of the IPC cannot sustain in the eye of law and is required to be set aside.
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24. Insofar as conviction of appellants under Sections 147, 148, 149 and 324 is concerned, in view of specific evidence of the prosecution witness Sunil (PW3), Vimal (PW4), another Vimal (PW5) and Raghunath (PW6), presence of appellants is fixed at the spot of incident, which happens to be the courtyard of accused no.1-Bhujang. Further, even it is the defence of the appellants that there took a scuffle in between the two groups. Dr. Deepak (DW1) has examined injured Sunil Gedam (PW3). The injury certificate is at Exh.-148. He also examined Vimal alias Suman (PW4) and her injury certificate is at Exh.-150. Similarly, he examined another Vimal (PW5) and her medical certificate is at Exh.-152. He has also examined Raghunath (PW6) and the injury certificate is at Exh.-150. Perusal of this shows that they have suffered injuries. In view of the consistent evidence of this prosecution witness, it is clear that these appellants were members of unlawful assembly and they caused injuries to the prosecution witness.
25. In that view of the matter, I do not see any reason to disturb the finding recording guilt of the appellants for an offence punishable under Sections 147, 148, 149 and 324 of the IPC. ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 :::
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26. The jail sentence for these offences was one year on each count.
Accused no.1-Bhujang was arrested on 22.10.2000 and he was in jail till 31.12.2002 i.e. the date of the judgment. He was released on bail by this Court on 17.07.2003. Thus, accused no.1- Bhujang was in jail from 22.10.2000 till 17.07.2004 and he has already suffered jail sentence for the aforesaid offence.
Accused No.2-Kisan was arrested on 22.10.2000, he was released on bail by the trial Court on 26.02.2001 and after conviction, he was taken in custody and he was released by the Court on 11.02.2003. Similar is the case of accused no.3-Haridas. Like accused no.1-Bhujang, accused no.6-Kawadu and accused no.9-Rajeshwar were arrested on 22.10.2000 and they were in jail till they were released on bail by this Court in their appeal on 17.07.2003. Thus, these accused persons have already undergone the sentence.
27. The conspectus of the aforesaid discussion leads me to pass the following order.
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ORDER
(i) The appeals are partly allowed.
(ii) Judgment and order of conviction dated 31.12.2002
passed by 3rd Ad hoc Additional Sessions Judge, Chandrapur in Sessions Case No. 25/2001, convicting the appellants in these two appeals for an offence punishable under Section 304-II of the Indian Penal Code is hereby set aside. All appellants are acquitted of the offence punishable under Section 304-II of the IPC.
(iii) Conviction of the appellants for an offence punishable under Sections 147, 148, 149 and 324 of the Indian Penal Code, is confirmed.
(iv) Since accused no.1-Bhujang, accused no.-Kawadu, accused no.9-Rajeshwar were already in jail fore more than one year, they need not to undergo any further jail sentence.
(v) Insofar as accused no.2-Kisan and accused no.3-Haridas is concerned, their jail sentence shall be the jail sentence for a period, which they have already undergone in jail. However, order of fine amount is maintained.
JUDGE kahale ::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 10:24:01 :::