Bombay High Court
Rahul Ulhas Pise vs The State Of Maharashtra on 3 August, 2009
Author: B.H.Marlapalle
Bench: B.H.Marlapalle, S.J.Vazifdar
1
pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Appellate Side
Criminal Appeal No. 231 of 1988
1. Rahul Ulhas Pise
2. Dhondiram Balkrishna Pise ..Appellants
(Org.Accd.Nos.1 & 2)
Vs.
The State of Maharashtra ..Respondent
ig ALONG WITH
Criminal Appeal No. 232 of 1988
1. Nandkumar Balkrishna More
2. Deepak @ Dilip Balkrishna More ..Appellants
(Org.Accd.Nos.3 & 4)
Vs.
The State of Maharashtra ..Respondent
ALONG WITH
Criminal Appeal No. 630 of 1988
The State of Maharashtra ..Appellant
Vs.
1. Rahul Ulhas Pise
2. Dhondiram Balkrishna Pise
3. Nandkumar Balkrishna More
4. Deepak @ Dilip Balkrishna More ..Respondents
(Org.Accd.Nos.1 to 4)
::: Downloaded on - 09/06/2013 14:51:42 :::
2
ALONG WITH
Criminal Revision Application No. 249 of 1988
Pradip Laxmanrao Pise ..Applicant
(Org. Complainant)
Vs.
1. Rahul Pise and ors. ..Respondents
Mr. Shirish Gupte, Senior Counsel with Mr. S.V. Marwadi i/by Mr.
Ganesh Gole for appellants in Criminal Appeal Nos. 231 & 232 of
1988 and for respondent nos.1 to 4 in Criminal Appeal No.
630/88 and for respondent nos.1 to 6 in Cri. Revision Application
No. 249/88.
Mr.P.S.Hingorani, APP for respondent-State in Cri.Appeal Nos.231
and 232 of 1988, for appellant-State in Cri. Appeal No. 630/88
and for respondent no.7 in Cri.Rev. Application No. 249/88.
Mr. Niteen Pradhan i/by Ms. S.D. Khot for applicant - org.
complainant in Cri. Rev. Application No. 249/88.
CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ.
Reserved on : July 13, 2009.
Pronounced on : August 03, 2009.
JUDGMENT (PER B.H.MARLAPALLE,J.)
1. These three appeals and the Criminal Revision Application arise from the order of conviction and sentence passed by the ::: Downloaded on - 09/06/2013 14:51:42 ::: 3 learned Additional Sessions Judge at Kolhapur on 21/3/1988 in Sessions Case No. 28 of 1986. The operative part of the order of conviction and sentence reads as under:-
" The accused Nos.1 to 4 are convicted for the offences under Sections 147, 148, Section 326 read with Sections 149, Section 323 read with Section 149 of I.P.C.
1. The accused Nos.1 to 4 are convicted and sentenced to suffer R.I. for one year and to pay fine of Rs.500/- i/d to suffer R.I. for 15 days for the offence under Section 147 of I.P.C.
2. The accused Nos. 1 to 4 are convicted and sentenced to suffer R.I. for one year and to pay fine of Rs.1000/- i/d to suffer R.I. for three months for the offence u/s 148 of I.P.C.
3. The accused Nos.1 to 4 are convicted and sentenced to suffer R.I. for five years and to pay fine of Rs.2000/- i/d to suffer R.I. for 6 months for the ::: Downloaded on - 09/06/2013 14:51:42 ::: 4 offence u/s 326 read with Section 149 of I.P.C. for causing grievous hurt to deceased Laxman Pise and Sharad Pise.
4. The accused Nos. 1 to 4 are convicted and sentenced to suffer R.I. for one year and to pay fine of Rs.1000/- i/d to suffer R.I. for three months under Section 323 read with Section 149 of I.P.C. for causing hurts to deceased Laxman Pise, Sharad Pise and Pradip Pise.
5. The substantive sentences of accused nos. 1 to 4 to run concurrently.
Accused No.1 was in custody from 29.10.85 to 2.11.85.
Accused No.2 was in custody from 26.10.85 to 29.10.85.
Accused No.3 was in custody from 29.10.85 to 2.11.85.
Accused No.4 was in custody from 29.10.85 to 2.11.85.
and they are entitled to the set off of the said period under Section 428 of Cr.P.C.::: Downloaded on - 09/06/2013 14:51:42 ::: 5
6. The accused Nos.1 to 4 are acquitted of the offences under Sections 302 read with Section 149 and Section 307 read with Section 149 of I.P.C.
7. Accused Nos.5 and 6 are acquitted of the offences for which they are charged and prosecuted.
8. The amount of fine if recovered, out of the said amount, amount of Rs.4000/- be awarded to injured Sharad Pise under Section 357 of Cr.P.C."
2. Criminal Appeal No. 231 of 1988 has been filed by accused nos.1 and 2 and Criminal Appeal No. 232 of 1988 has been filed by accused nos. 3 and 4. Whereas Criminal Appeal No. 630 of 1988 has been filed by the State Government against the acquittal of accused nos.1 to 4 for the offences punishable under Section 302 read with Section 149 and Section 307 read with Section 149 of I.P.C. Criminal Revision Application No. 249 of 1988 has been filed by the original complainant - Shri Pradip Laxmanrao Pise (PW 19) praying for setting aside the acquittal order under Section 302 read with Section 149 and Section 307 read with Section 149 of I.P.C. and also the acquittal of accused ::: Downloaded on - 09/06/2013 14:51:42 ::: 6 nos.5 and 6 from all the offences. Hence, all the three appeals and the Criminal Revision Application are being decided by this common judgment.
During the pendency of these appeals accused no. 2 Dhondiram died and hence Criminal Appeal No.231 of 1988 and Criminal Appeal No.630 of 1988 stand abated qua the said accused and, therefore we will have to examine the appeals only in respect of accused nos.1, 3 and 4.
3. Deceased - Laxman Pise was the younger brother of accused no.2 - Dhondiram. Dhondiarm's son Ulhas died in 1984 and left behind two sons i.e. Rahul - accused no.1 and Girish -
Juvenile acquitted accused. Thus, Ulhas and Girish are the grand children of accused no.2 - Dhondiram. There was a family partnership business of Hotel and Restaurant and the brothers had other immoveable properties at Kolhapur as well as Panhala and disputes about the property and the share of the brothers were going on. By filing proceedings under Section 145 of Cr.P.C. one of the parties was successful in obtaining the possession of Meghadoot Hotel, Kolhapur. The brothers also possessed agricultural land at village Nigawe and Kerle. The ::: Downloaded on - 09/06/2013 14:51:42 ::: 7 hotels at Kolhapur and Panhala were being run by a partnership firm with accused no.1, complainant's brother - Sharad (PW 20), the complainant himself and one Ranjit being the partners, since the year 1966. In the month of October, 1985, the paddy crop in the land at Nigawe was harvested and, therefore, on the date of the incident i.e. 26/10/1985 deceased - Laxman along with his two sons, Pradip and Sharad went to the land to collect their share of paddy by his Ambassador Car bearing Registration No. MHK 6253 between 3.30 p.m. to 4 p.m. ig Within half an hour thereafter, accused no.2 - Dhondiram along with his two grand children i.e. Rahul - accused no.1 and Girish - Juvenile Accused reached the same place to collect the paddy and they had gone by an autorickshaw. The Ambassador Car as well as the autorickshaw were parked near the pandan, little away from the thrashing floor. It appears that Dhondiram wanted to collect the entire paddy whereas deceased - Laxman suggested that they should take half share each pending the dispute. It is necessary to mention here itself that deceased-Laxman was a practicing Advocate and his son Sharad had also joined him in the said profession.
4. As per the prosecution case when both the parties ::: Downloaded on - 09/06/2013 14:51:42 ::: 8 reached the thrashing floor Tukaram Chile - PW 10, Ramchandra Khande - PW 11, Shripati Khande - PW 12 and Laxman Gaikwad
- PW 13 were present at the spot and Chandrakant Patil - PW 14 was the owner of the neighbouring land who was also watching the incident. When the deceased suggested that paddy be shared in equal proportion between the two families, the accused Dhondiram started abusing the deceased and his two grandsons also joined him in the quarrel. Accused no.1 - Rahul went towards the school side along with his brother Girish and the complainant and his brother went towards the car. The deceased and Dhondiram stayed at the thrashing floor. The complainant and his brother after reaching near the car realized that its tyre was deflated and, therefore, they called driver Laxman Gaikwad - PW 13 towards the car. While they were removing the deflated wheel accused no.1 - Rahul and his brother Girish, accused nos.3 and 4 and three unknown persons came towards them with arms in their hands. Accused nos.3 and 4 were carrying swords and also Girish was with sword, other accused were armed with sticks, chains and rods etc. They assaulted the complainant as well as Sharad. The complainant warded off the sword attack and sustained injuries on his fingers. Sharad sustained about twenty injuries, the ::: Downloaded on - 09/06/2013 14:51:42 ::: 9 complainant shouted and alerted his father. When Sharad was trying to escape the assault, he was chased and beaten.
Accused no.4 - Deepak and Girish then proceeded towards the thrashing floor with swords in their hands and Girish gave sword blow on the head of the deceased. Accused no.4 gave another blow of sword on the chin of the deceased. The deceased fell down and even thereafter accused no.2 - Dhondiram started beating the deceased with a stick in his hands. The complainant tried to intervene and at that time all the accused ran away.
The complainant shifted his father and brother to the CPR Hospital at Kolhapur in a tractor trolley and on their admission at the said hospital they were examined by Dr.Ramchandra Magadum - PW 21 who issued medical certificates at 63 and 66 respectively. Thereafter the complainant went to the Karvir Police Station and recorded his complaint with Kalidas Jadhav, PSI - PW 25 at about 7.30 p.m. on 26/10/1985 itself. After some time accused no.2 - Dhondiram Pise also went to the said police station and lodged a complaint which was registered as N.C. (Exhibit 77) at about 8 p.m. and he was taken into custody. The complainant after he filed his FIR also produced the stick used by accused no.2 in assaulting the deceased - Laxman. The complainant and accused no.2 were sent for medical ::: Downloaded on - 09/06/2013 14:51:43 ::: 10 examination which was conducted by Dr.Shamkant Talawekar -
PW 22 and he issued medical certificates at Exhibits 70 and 71 respectively. The deceased Laxman was unconscious and Laxman as well as Sharad had sustained serious injuries and, therefore, Dr. Prakash Shahapurkar, Surgeon who was running his own private hospital was called to the CPR Hospital. He examined both of them at about 11.30 p.m. Both of them were shifted to Dr.Shahapurkar's hospital on 29/10/1985. Deceased Laxman continued to be unconscious till 4/11/1985.
ig After he had regained his consciousness, his dying declaration was recorded on 6/11/1985 by the Special Executive Magistrate. On 10/11/1985 Laxman died. Autopsy on his body was conducted by Dr.B.H.Ghatage - PW 9 who signed the PM notes at Exhibit 37 on the same day. Dr. Shahapurkar issued medical certificates after examining Sharad and Laxman at Exhibits 73 and 74 respectively. On 7/1/1986 T.I. Parade was conducted by Vasant P. Rane - PW 15 for identification of the unknown accused and in the said parade only Sharad identified accused no.6 and the complainant could not identify any accused. Dinkar Dhobale -
PW 16 was the panch witness for the TI parade and its memorandum was drawn at Exhibit 45. On 25/10/1985 PSI Kalidas Jadhav visited the spot and drew spot panchanama at ::: Downloaded on - 09/06/2013 14:51:43 ::: 11 Exhibit 24 which was proved by the panch witness Krishnath Mahipati Ekshinge - PW 3. The investigation was then taken over by PSI Gahininath Ingale -PW 26 and PSI Nivrutti Powar - -
PW 27. At the spot of the incident near the ambassador car blood stains were found from the soil and, therefore, samples were collected and sent for C.A. On completion of investigation PW 27 filed the charge-sheet dated 17/1/1986. C.A. Reports were received at Exhibits 82 to 84. The case came to be committed to the Sessions Court on 13/2/1986 and the Sessions Court framed the charge on 7/1/1988. As there is variance between the charge and the issues framed by the Sessions Court, we proceed to deal with these appeals on the basis of the charge framed which reads as under:
"CHARGE I, C.M. Patil, Additional Sessions Judge, Kolhapur do hereby charge you,
1. Rahul Ulhas Pise, Age 19 yrs., resident of 2425 C Ward, Kolhapur
2. Dhondiram Balkrishna Pise, Age 62 yrs., resident of 2425 C Ward, Kolhapur
3. Nandkumar Balkrishna More, Age 22 yrs., resident of 2472 D Ward, Kolhapur
4. Deepak alias Dilip Balkrishna More, Age 19 yrs., resident of 2472 D Kolhapur ::: Downloaded on - 09/06/2013 14:51:43 ::: 12
5. Anil Vasantrao Bhalkar, Age 22 yrs., resident of 2556 C, Kolhapur
6. Sanjay Ganpatrao Chavan, Age 22 yrs., resident of 2548 C, Kolhapur as follows:
That you accused Nos.1 to 6 above named, alongwith juvenile offender Girish Ulhas Pise, on 26-10-1985 at about 6-00 P.M. in the field bearing Gat No.14 and in the foot track (Panand) near the said field at village Vadange, Taluka Karvir, District
- Kolhapur, were members of an unlawful assembly, the common object of which was to assault Laxman Balkrishna Pise, Sharad Pise and Pradip Pise and in prosecution of such common object did commit an offence of rioting which is punishable under section 147 of the Indian Penal Code.
That you accused above named along with juvenile offender, on the aforesaid date, time and place were members of an unlawful assembly and in prosecution of the common object namely to assault deceased Laxman Pise, Sharad Pise and Pradip Pise and committed an offence of rioting with deadly weapons namely, you accused no.1 was armed with stick, you accused no.4 was armed with sword and others were armed with sticks and cycle chain and assaulted the persons named above and thereby committed an offence punishable under section 148 of the Indian Penal Code.
That you accused above named along with juvenile offender Girish Pise, on the aforesaid date, time and place were members of an unlawful assembly and in prosecution of the common object to assault deceased Laxman B. Pise, Sharad Pise and Pradip Pise committed murder by intentionally or knowingly causing the death of Laxman Pise (who died due to the said injuries of the assault on ::: Downloaded on - 09/06/2013 14:51:43 ::: 13 30-11-1985) and thereby committed an offence punishable under Section 302 read with Section 149 of the Indian Penal Code.
Alternatively you accused above named, along with juvenile offender, on the aforesaid date, time and place, in furtherance of the common intention of you all, did commit murder by intentionally or knowingly causing the death of Laxman Balkrishna Pise and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
That you accused above named along with juvenile offender, on the aforesaid date, time and place were members of an unlawful assembly and in prosecution of the common object, did an act to wit tried to commit assault on Sharad Pise by sword on his head, by cycle chain and sticks with such intention or knowledge and under such circumstances by that act you had caused the death of Sharad Pise you would have been guilty of murder and that you caused hurt to the said Sharad Pise by the said act and thereby committed an offence punishable under Section 307 read with Section 149 of the Indian Penal Code.
That you accused above named along with juvenile offender, in furtherance of the common intention of you all, on the aforesaid date, time and place, did an act to wit tried to commit assault on Sharad Pise by sword on his head, by cycle chain and sticks with such intention or knowledge and under such circumstances, by that act you had caused the death of Sharad Pise you would have been guilty of murder and that you caused hurt to the said Sharad Pise by the said act and thereby committed an offence punishable under Section 307 read with Section 34 of the Indian Penal Code.
Alternatively, you accused above named along with juvenile offender, on the aforesaid date, time and place were members of an unlawful assembly and in prosecution of the common object ::: Downloaded on - 09/06/2013 14:51:43 ::: 14 you voluntarily caused hurt to Sharad Pise by means of instruments i.e. sword, stick and cycle chain, which is an instrument for stabbing and hitting and thereby committed an offence punishable under Section 326 read with Section 149 of the Indian Penal Code.
That you accused above named along with juvenile offender, on the aforesaid date, time and place, in furtherance of the common intention of you all, you caused hurt to Sharad Pise by means of instruments i.e. sword, stick and cycle chain, which is an instrument for stabbing and hitting and thereby committed an offence punishable under Section 326 read with Section 34 of the Indian Penal Code.
That you accused above named along with juvenile offender, on the aforesaid date, time and place, were members of an unlawful assembly and in prosecution of the common object you voluntarily caused hurt to Pradip Pise by means of stick and thereby committed an offence punishable under Section 324 read with Section 149 of the Indian Penal Code.
Alternatively that you accused above named, along with juvenile offender, on the aforesaid date, time and place, in furtherance of the common intention of you all, you accused voluntarily caused hurt to Pradeep Pise by means of stick and thereby committed an offence punishable under Section 324 read with Section 34 of the Indian Penal Code."
5. During the trial the prosecution examined in all 27 witnesses. PW 1 - Dipak Shah, PW 2 - Rajaram Chougule, PW 5
- Kiran Dinde, PW 6 - Sadashiv Palkar, PW 7 - Shripati Nagare, PW 8 - Vithal Nagare and PW 17 - Pandurang Patil were the ::: Downloaded on - 09/06/2013 14:51:43 ::: 15 panch witnesses who turned hostile. PW 4 - Ambaji Ghatage was the panch witness for inquest panchanama at Exhibit 26 on 10/11/1985. Letter to the Chemical Analyzer at Exhibit 81 along with CA reports at Exhibits 82 to 84 were also placed on record. As per the prosecution, its case was supported by the ocular evidence of PW 10 - Tukaram Chile, PW 11 - Ramchandra Khande, PW 12 - Shripati Khande, PW 13 - Laxman Gaikwad driver, PW 14 - Chandrakant Patil, PW 19 - Pradeep Laxman Pise and PW 20 - Sharad Laxman Pise.
ig However PW 11 -
Ramchandra Khande, PW 12 - Shripati Khande, PW 13 - Laxman Gaikwad and PW 14 - Chandrakant Patil turned hostile and did not support the case of the prosecution. The impugned order of conviction and sentence is thus based on the evidence of three eye witnesses viz. PW 10 - Tukaram Chile, PW 19 - Pradeep Laxman Pise complainant and PW 20 - Sharad Laxman Pise. As noted earlier PW 19 and PW 20 are the injured eye witnesses.
6. From the spot of incident near the ambassador car blood samples were collected from the soil about a few feet away from the car and sent for CA. At the same time blood sample of Sharad Pise was also taken and sent for CA. The CA report at Exhibit 82 indicated that the soil sample detected human blood ::: Downloaded on - 09/06/2013 14:51:43 ::: 16 of Group "B" and the CA report at Exhibit 84 showed that the blood group of Sharad Pise is "B". The spot panchanama at Exhibit 24 has been proved by the evidence of PW 3 - Krishnath Ekshinge. The recovery of three swords purportedly made in the presence of PW 5 - Kiran Dinde has not been proved. The N.C. filed by accused no.2 at Exhibit 77 does go to prove that a quarrel between the party of the accused no.2 on the one hand and the party of the deceased on the other hand had taken place on 26/10/1985 at the thrashing floor in the land belonging to the family at village Nigawe and the quarrel had resulted into an assault. The complainant had taken Sharad - PW 20 as well as deceased - Laxman to the CPR Hospital and admitted them there between 7 and 7.30 p.m. on the date of the incident. Thus the only issue that was required to be proved by the prosecution before the Sessions Court was the involvement of the accused or some of them in the assault which resulted in the injuries caused to the complainant - PW 19 and Sharad - PW 20 and the deceased.
PW 12 - Shripati Khade, one of the eye witnesses, who turned hostile before the trial court, supports the incident as narrated in the N.C. (Exh. 77) filed by accused no.2 -
::: Downloaded on - 09/06/2013 14:51:43 ::: 17Dhondiram and it further proves about the quarrel between the deceased and accused no.2 as well as subsequent incident of assault. However, the said witness stated in his examination-in-
chief that it was accused no.2 who fell on the ground and prior to that PW 20 -Sharad gave him a stick blow and thereafter he was not in a position to see the incident. Injuries caused to accused no.2 have been explained in the N.C. and the medical certificate at Exh. 70 and, therefore, it was not necessary for the prosecution to explain the said injuries. In addition, the dying declaration at Exh. 91 was recorded after Dr. Shahapurkar - PW 23 had certified that deceased Laxman was conscious and fit to make a statement on 6/11/1985 at about 10.12 a.m. to 11.32 a.m., though in his cross-examination the said doctor stated before the trial court that no Dying Declaration of the deceased was recorded in his hospital and in his presence till Laxman was alive. The record does not support the said statement made by the doctor. This Dying Declaration corroborates the prosecution case that the incident of assault on the complainant party had taken place on 26/10/1985 between 4.30 p.m. to 5.30 p.m. in the agricultural land at village Nigawe and owned by the parties.
It further corroborates that the injuries suffered by Laxman, Sharad and Pradip were on account of the assault inflicted on ::: Downloaded on - 09/06/2013 14:51:43 ::: 18 them in the said incident. Therefore, the Dying Declaration at Exh. 91 recorded of the deceased Laxman cannot be discarded from our considerations and it deserves to be read to corroborate the prosecution case though, by itself, it cannot be treated as evidence as the Special Executive Magistrate who had recorded the same was not alive and hence could not be examined by the prosecution to prove the same. It is nowhere the case of the defence that on account of the alleged assault, the accused had acted in self defence which resulted in causing injuries to Pradip, Sharad and Laxman. The injuries noticed on the person of accused no.2 were minor and could be caused even by fall on the ground in the quarrel between accused no.2 and the deceased. The N.C. does not state that anyone from the complainant party was armed. These are some additional circumstances against the accused. The trial Court rightly referred to the observations in the case of Faddi Vs. State of Madhya Pradesh AIR 1964 SC 1850. In the said case it was contended that the First Information Report was inadmissible in evidence and should not have been, therefore, taken on record.
Rejecting the said contentions Their Lordships in para 15 observed as under:-
::: Downloaded on - 09/06/2013 14:51:43 ::: 19"The report is not a confession of the appellant.
It is not a statement made to a police officer during the course of investigation. Section 25 of the Evidence Act and S. 162 of the Code of Criminal Procedure do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court viz., how and by whom the murder of Gulab was committed, or whether the appellant's statement in Court denying the correctness of certain statements of the prosecution witnesses is correct or not.
Admissions are admissible in evidence under Section 21 of the Act. ... It is, therefore, clear that admissions of an accused can be proved against him."
7. It is also required to be noted at this stage that the trial against the juvenile accused has resulted into an acquittal.
However, the fact of the said acquittal in an independent trial would not affect the present appeals which arose from a separate trial in Sessions Case No.28 of 1986. The learned APP in this regard has rightly relied upon the decision of this Court in the case of Rajesh A. Behere Vs. State of Maharashtra [2009 ::: Downloaded on - 09/06/2013 14:51:43 ::: 20 All M.R. (Cri) 1612].
It is no doubt true that on account of a majority of panch witnesses turning hostile, the recoveries/seizures, including the recovery of three swords could not be relied upon, but that by itself would not affect the prosecution case, which is based on the evidence of remaining three eye witnesses who have been relied upon by the trial court i.e. PW 10, PW 19 and PW 20, the last two eye witnesses being injured eye witnesses. The trial court has rightly discarded the recovery of swords.
8. The medical certificates at Exhs. 63 and 66 and issued by Dr. Magadum - PW 21 described the following injuries sustained by Sharad and deceased Laxman respectively:
Injuries on the person of Shri Sharad:
(1) Incised wound over scalp. Right side extending from hair-line to posterior aspect of neck 7"x1". Bone deep.
Oblique in direction. Bleeding-plus.
(2) Incised wound over just above injury No.1 inside of ::: Downloaded on - 09/06/2013 14:51:43 ::: 21 pinna 2"x1/4", scape deep. Bleeding Plus. Parallel to injury No.1.
(3) Incised wound, right side of face. Extending from Maxillary prominence to Mastoid Process. Lobule of right ear is cut and 7"x2" muscle deep, bleeding plus.
(4) Incised wound over right side of face, just below injury No.3 and parallel to injury No.3, 7"x1/2". Bleeding plus, muscle deep.
(5) Incised wound over right parietal region, transverse in direction. Bone deep. 3 1/2"x1/2" bleeding plus.
(6) C.L.W. over right parietal eminence. Crossing in 90 degree angle to injury No.5 scalp deep. Bleeding plus.
(7) Incised wound over right shoulder. 4"x1/2" muscle deep. Oblique in direction. Bleeding plus.
(8) Multiple contusion over right arm. Blackish discolourate - plus.
::: Downloaded on - 09/06/2013 14:51:43 ::: 22(9) Incised wound over right wrist joint, dorsal aspect, oblique in direction, 1"x1/4" muscle deep. Bleeding plus.
(10) Incised wound over dorsal of right hand, oblique in direction 2 1/2"x1/4" muscle deep. Bleeding plus.
(11) Incised wound over proximal L.P. Joint. Dorsal aspect.
Oblique 1"x1/2" bleeding plus of right little finger.
(12) Incised wound over posterior middle third, left fore-
arm 2 1/2"x1/2" muscle deep. Bleeding present plus.
(13) C.L.W. over little finger, dorsal aspect of left hand, bone deep. Tip is cut vertically. Separate flap present.
Bleeding present.
(14) C.L.W. over ring finger left side, proximal I.P. joint, bone deep Proximal phalanx, tendons cut, bleeding present - 1"x1/2".
(15) C.L.W. over middle finger left hand on first I.P. Joint.
::: Downloaded on - 09/06/2013 14:51:43 ::: 23Bone deep.
(16) C.L.W. over index finger, left hand, dorsal aspect proximal I.P. Joint. Skin deep. Bleeding present.
(17) C.L.W. over finger, left hand, dorsal aspect, right hand, first I.P. joint. Bleeding present - one deep.
(18) Incised wound over first finger right hand, some portion of tip is cut. Bleeding present.
(19) Contusion over posterior aspect up or third region of right forearm, swelling plus. 2" in diameter. Tenderness present.
(20) Contusion over right knee joint 2 cm. In length.
Injuries on the person of deceased Laxman:
1. C.L.W. over left front to parietal region. 10 cm x 1 cm.
Scalp deep. Bleeding present.
2. C.L.W. over occipital region, 5cm x 1 cm. Scalp deep.
::: Downloaded on - 09/06/2013 14:51:43 ::: 24Bleeding present.
3. Wheal mark over back over mid-line in inter scapular region. 10 cm. X 3 cm. Pink in colour.
The Medical Certificate at Exh. 70 issued by PW 22 - Dr. Talawekar described the following injuries sustain by complainant - Pradip:
1. Contusion over right knee, anteriorly, 3cm x 2 cm.
2. Contusion on right scapular area, 4 cm x 3 cm. Red in colour. No bleeding.
8A. In addition, PW 23 - Dr. Shahapurkar had also issued Medical Certificate at Exh. 73 for Sharad and Exh. 74 for Laxman and described the following injuries:
Injuries on the person of Sharad:
1. C.L.W. right deltoid region measuring 3" x ½ cm.
2. Multiple blunt stick marks on right arm, front and back.::: Downloaded on - 09/06/2013 14:51:43 ::: 25
3. Multiple C.L.W. over both fingers on dorms and on right hand dorms. Left middle fingers, proximal phalynx, fractured with extens-or tendon cut.
4. 3" x 1/2" C.L.W. left fore arm, bone deep.
Injuries on the person of deceased Laxman:
1. C.L.W. right frontal.
2. C.L.W. right posterior parietal region near mid-line, 2 inches in length.
9. The post mortem report at Exh. 37 has been proved by PW 9 - Dr. Ghatage. He stated that the following external and internal injuries were noticed by him while carrying out the autopsy :-
External Injuries:
Scalp injuries.
1) CLW 2" over left frontal parietal region scalp deep.
Blackish discolouration around wound side. No fracture ::: Downloaded on - 09/06/2013 14:51:43 ::: 26 clinically.
2) CLW over occipital region in mid-line 5 x 1 cm. Scalp deep. No fracture.
3) Some hand mass felt on palpation on right upper zone subcutaneous - History wise pacemaker was applied by Dr. Sartur at Miraj Medical Center few months back.
Internal injuries.
1) Fracture of skull right side.
Extending from 1" from mid-line right posterior frontal extends down towards middle vascular groove dividing in triradiate fashion.
(1) First going to post as pit of lower orbital place (2) Second going to auditory, meatus triradiate line (3) Third just above the second triradiate line crossing squamous part of the temporal bone, coming up under posteriorly and obliquely upto parietal eminence.
2) In respect of the brain the doctor noticed, (1) Frontal lobe right - contusion ::: Downloaded on - 09/06/2013 14:51:43 ::: 27 (2) It temporal lobe - contusion.
(3) It temporal lobe - contusion No nerventricular Haemotoma seen. No ventricular haemotoma seen. Entire brain oederacioius.
The doctor stated that in respect of the said external and internal injuries if there was no adequate treatment, death may be caused in the ordinary course. However, in his cross-
examination on behalf of the accused nos. 3 to 6 ig the said doctor admitted that possibility of death because of failure of pacemaker could not be ruled out in the present case. He also admitted that the fracture noticed on the right side of the skull was possible on account of fall.
10. As per PW 21 Dr.Magadum cause of injury nos.6, 8, 13 to 17, 19 and 20 suffered by Sharad was by a hard and blunt object. Injury nos.1 to 5,7,9 to 12 and 18 were possible because of the sword. The witness further clarified that the sword before the Court could not cause such type of injuries. He also clarified that CLWs mentioned in the medical certificate were possible because of use of sticks or any other blunt object. In his cross-
examination the said witness stated that the X-ray of Sharad's ::: Downloaded on - 09/06/2013 14:51:43 ::: 28 skull was taken and it was found to be normal. He also admitted that because of the injuries on the hand and other parts of the body such as shoulder and face, no vital organ was damaged and so also no major artery was cut. He further stated that as per the definitions in the Medical science all the incised wounds are grievous but they are not dangerous to life. As the incised wounds on Sharad's body were caused by sharp and cutting weapon he had described them as grievous. He also admitted that if a person uses a sword forcibly, the depth of injury would be more than the depth of injury nos.1 to 5 and 7 and he could not state whether these injuries had been caused by a weapon lighter than the sword taking into consideration their depth. In his cross-examination Dr. Shahapurkar - PW 23 admitted that Sharad was discharged from his hospital on 7/11/1985. He also stated that Sharad was conscious all along right from the time he had examined him on 26/10/1985 in the CPR hospital at about 11.30 p.m. and his diagnosis was that Shard had received multiple contused lacerated wounds.
11. The above medical evidence of both the doctors goes to show that the injuries sustained by Sharad did not cause threat to his life and none of these injuries could have resulted in his ::: Downloaded on - 09/06/2013 14:51:43 ::: 29 death if he did not receive the treatment, despite the fact that he was under treatment from 26/10/1985 to 7/11/1985. Hence in respect of the assaults on Sharad there was no case made out by the prosecution in support of its charge under Section 307 read with Section 149 or Section 34 of IPC. At the same time the incised wounds are indication that a cutting weapon was used to assault Sharad, during the incident and thus making out case of offences punishable under Sections 323 and 326 read with Section 34 of IPC.
12. On the other hand PW 23 Dr. Shahapurkar stated before the trial Court that he had treated deceased Laxman in his hospital till his demise on 10/11/1985 at about 4.20 p.m. As per him, clinically the cause of Laxman's death was secondary brain stem failure and brain stem failure would not be primarily because of the said external injury but the said brain stem failure is likely to be associated with internal injury or associated with other disease. As there was pace maker, that means his cardiac status was not normal. He further stated that Laxman was in his hospital and in spite of the pace maker, his cardiac status was very good. This opinion of the expert i.e. Dr.Shahapurkar - PW 23 ruled out the possibility of Laxman's ::: Downloaded on - 09/06/2013 14:51:43 ::: 30 death on account of failure of pace maker and, therefore, the opinion given by PW 9 - Dr. Ghatge in his cross-examination regarding the cause of death of Laxman - "possibility of death because of the failure of pace maker could not be ruled out in the present case", does not weaken the prosecution case that Laxman died on account of the injuries he had sustained in the assault inflicted on him on 26/10/1985. His death is attributed to the said injuries, as has been proved by the prosecution beyond reasonable doubt.
13. The first incident of assault, as per the prosecution, was on PW 19 - Pradeep and PW 20 - Sharad and the eye witnesses to the said incident are only two of them who were injured witnesses. Whereas the second incident of assault on the thrashing floor after the first incident was only on the deceased and the prosecution claims that the eye witnesses to the said second incident were PW 10 Chile and PW 19 Pradeep.
14. Having regard to the evidence of PW 12 - Shripati Khande (hostile witness), PW 19 - Pradeep, PW 20 - Sharad and corroborated by the documents i.e. FIR at Exhibit 50, the N.C. at Exhibit 77 and the dying declaration of Laxman at Exhibit 91, it ::: Downloaded on - 09/06/2013 14:51:43 ::: 31 is clearly established that between the deceased and accused no.2 there was a dispute about the share in the properties and proceedings were initiated in respect of the same before different authorities. On the date of the incident in the agricultural land owned by the parties at Nigawe dispute about sharing of the harvested paddy arose and consequently it resulted into a quarrel and scuffle between the parties. The statement of accused nos.1 and 2 recorded under Section 313 of Cr.P.C. also went to show that prior to the incident the relations between the complainant's family and the family of the accused were strained on account of property disputes. Suits were filed and criminal cases were lodged against each other. A letter addressed to the Superintendent of Police by PW 20 Sharad at Exhibit 61 went to show that the juvenile accused along with some nine boys had been to the house of Sharad and they abused him and threatened him. To the same effect is the letter at Exhibit 60 written by the deceased Laxman. Vide his letter at Exhibit 93 deceased Laxman had expressed doubt that the accused nos.1 and 2 and the juvenile accused along with some gundas were likely to commit some incident involving him.
::: Downloaded on - 09/06/2013 14:51:43 ::: 3215. In his complaint to the police recorded as an FIR at Exh.
50, PW 19, regarding the first incident of assault on him and his brother PW 20 near the Ambassador Car, stated that while both the brothers along with Tractor driver Laxman Gaikwad - PW 13 were replacing the defective car wheel, Deepak More - accused no. 4 assaulted PW 20 - Sharad with swrod on his right hand palm and the juvenile accused - Girish attempted to assault the complainant by a sword but he escaped the said assault by moving aside. But at the same time, accused no.1 hit him on his back as well as on right knee with a stick. He further stated that injured Sharad was again assaulted with sword, stick and chain by the accused and the unknown person. At that time, he shouted loudly and alerted the people present at the thrashing floor. Thus, PW 19 definitely described the assault by sword by accused no.4 on PW 20 and the assault by accused no.1 with stick on himself i.e. PW 19. He clearly stated that after the first assault by sword on Sharad, the accused party continued to assault him with sword, stick and chain. He did not specify the name of the person who assaulted by sword or stick or chain.
Sharad had received multiple injuries. In his depositions before the trial court, PW 19 stated that when they were replacing the punctured tyre of the Ambassador Car, he saw accused no.4, ::: Downloaded on - 09/06/2013 14:51:43 ::: 33 accused no.3, accused no.1 and the juvenile accused and three unknown persons coming from the high school side and they were coming running towards the Ambassador Car with swords in their hands. The swords were in the hands of juvenile accused, accused no.3 and accused no.4, whereas there were sticks and chains with three unknown persons and accused no.1 was armed with stick. He further stated that accused no.1 gave blow with sword to Sharad and the juvenile accused tried to give a blow with sword to the complainant. However, he escaped the said blow and he cried loudly. Then accused no.1 gave him a stick blow on his right leg and back . Thereafter accused nos.1, 3 and 4 and the juvenile accused along with three unknown persons beat his brother Sharad continuously. Again he cried loudly so as to alert his father who was at thrashing floor. Thus as far as PW 19 is concerned, he was assaulted with a stick by accused no.1 on his back and right knee. Whereas, as per PW 19, Sharad was assaulted, to begin with, by sword by accused no.4 and thereafter by accused nos.1, 3 and 4. He was beaten up by juvenile accused and three unknown persons. The use of sword is attributed to accused no.4, though he stated that accused nos. 3, 4 and juvenile accused were armed with swords.
He did not state that after the first assault of sword was ::: Downloaded on - 09/06/2013 14:51:43 ::: 34 inflicted by accused no.4 on Sharad, the subsequent assaults on Sharad were inflicted by the juvenile accused and accused nos.
3 and 4 by swords. He only stated that after the first assault by sword by accused no.4, Sharad was beaten up continuously by accused nos.1, 3, 4 and juvenile accused along with three unknown persons.
Now coming to the depositions of PW 20 about the assault on himself and his brother PW 19, he stated that while the punctured car wheel was being replaced, Pradeep cried, saying "sword" and he got up and turned and he moved back thereby he avoided the blow given by Girish (juvenile accused) with sword. At the same time, he received a blow with sword on his right shoulder and a chain blow on the very same shoulder.
When he tried to go ahead, accused no.4 came from front side and gave him a blow with sword on his right shoulder. While he was trying to run ahead, accused nos. 1, 3, 4 and the juvenile accused along with three unknown persons started beating him.
There was a sword in the hand of accused no.3 and there was a sword in the hand of accused no.4 as well as the juvenile accused. There was stick with accused no.1. The rest of the persons were armed with chains and sticks. All of them started ::: Downloaded on - 09/06/2013 14:51:43 ::: 35 beating him at one and the same time and as there was no weapon in his hand, in order to avoid the attack, he raised both his hands to defend himself and, therefore, sustained injuries of sword on his left little finger, left ring finger and left middle finger. He also received injuries on his right thumb, right ring finger and little finger and right wrist and left elbow and on his right cheek near ear. He also received sword injury on his head near right ear and another injury starting from top of the head going towards right ear. He stated that because of the injuries he fell unconscious and he regained consciousness on 27/10/1985 at 11 a.m. The medical officers i.e. PW 21 and PW 23 very clearly stated that PW 20 - Sharad was conscious all along from the time he admitted in the C.P.R. Hospital on 26/10/1985. This witness was also definite in his statement that accused no.1 was armed with the stick, accused no.4 was armed with sword and accused no.3 was also armed with sword. He did not specify the injuries caused by accused no.3 to him and he vaguely stated that accused nos.3, 4, 1, juvenile accused and three unknown persons started beating him when he tried to run away. He has attributed one sword attack to accused no.4.
Both these witnesses have confirmed the involvement of accused nos.1, 3 and 4 and also attributed the attack by sword ::: Downloaded on - 09/06/2013 14:51:43 ::: 36 to accused no.4. As per them accused no.1 assaulted with a stick in his hand. There is no specific assault attributed to accused no.3 either by sword or by a stick and both the brothers only stated that Sharad was beaten up by accused nos.1, 3, 4, juvenile accused and three unknown persons. The recovery of sword has not been proved and at the same time Sharad sustained a number of incised wounds which could be attributed to a cutting edge weapon. It will have to be, therefore, held that in the assault inflicted on Sharad, there were more than one cutting weapons and they could be attributed to accused nos. 4 and 3 and not to accused no.1 in any case.
16. Now coming to the second assault inflicted at the thrashing floor and in which deceased Laxman was injured, we have noted earlier that there were only two eye witnesses to this incident i.e. PW 10 - Tukaram Chile and PW 19 - Pradeep Pise. Pradeep stated that after his brother Sharad was assaulted and he was lying in injured condition, he ran towards the thrashing floor where his father was sitting. As per him the juvenile accused, accused no.1 and accused no.4 proceeded towards his father and he followed them. After reaching the thrashing floor, accused no.4 gave a blow with sword on the ::: Downloaded on - 09/06/2013 14:51:43 ::: 37 head of his father Laxman and the juvenile accused also gave a blow with sword on Laxman. Because of these assaults Laxman fell on the ground and thereafter accused no.2 gave a stick blow to Laxman on his head and in that process the stick in the hand of the accused no.2 had fallen on the ground. He picked it up.
Thereafter accused nos.1, 2 and 4 and the juvenile accused went away towards panand side. Thus in the second incident of assault near thrashing floor, as per PW 19, accused no.4 and juvenile accused had given a blow with sword on Laxman.
There is no assault attributed to accused no.1 in this incident and accused no.3 was also not implicated in this second incident. In fact, he stated that when accused nos.1, 2, 4 and juvenile accused ran towards panand, he noticed accused no.3 and other three unknown persons were already present in the panand and thereafter all the accused ran away.
Now coming to the second eye witness PW 10 - Tukaram Chile, he stated that at about 4 p.m. deceased Laxman along with his two sons i.e. Pradeep and Sharad reached the thrashing floor after parking the Ambassador Car in the panand and at about 4.30 p.m. accused no.2 with his two grand sons i.e. Accused no.1 and juvenile accused came there. He identified ::: Downloaded on - 09/06/2013 14:51:43 ::: 38 accused no.1 before the court. He then stated that accused nos.1 and 2 and the juvenile accused told the deceased that the paddy crop was owned by them and they would take away the same. The deceased agreed and he continued to talk to his brother - accused no.2, while the labourers were doing the work of cleaning the paddy. At that stage, the grand sons of accused no.2 started abusing the deceased and his sons. Thereafter they went away towards the panand side. Sharad and Pradeep, sons of the deceased went towards the car which was parked in the panand. After some time driver Gaikwad was called by Pradeep as the tyre of the car was punctured and, therefore, driver Gaikwad went there. The witness heard Pradeep crying that Sharad was beaten. Thereafter grand sons of accused no.2 returned to the thrashing floor along with the unknown persons and beat deceased with sword on his head. They had also sticks. As per him, in all three persons came to the thrashing floor, which meant accused no.1, juvenile accused and one unknown person. He further stated that on account of the assault, the deceased fell down with bleeding injuries. Accused no.2 who had a stick in his hand gave a stick blow on the head of the deceased. Pradeep Pise came running there and took away the stick which was lying on the ground. Al the accused ::: Downloaded on - 09/06/2013 14:51:43 ::: 39 went towards the panand. Pradeep followed them and all of them were went towards the high school side. Deceased Laxman sustained injuries on his head and back. The head injury was bleeding and blood had also fallen on the paddy. Then he noticed that Sharad was lying near the Ambassador Car and he had also sustained bleeding injuries. PW 10, PW 13 and PW 19 took the injured persons to C.P.R. Hospital in the Tractor. This witness could not identify the unknown person who used the sword in assaulting Laxman, but the same person was identified by PW 19 - Pradeep as being accused no.4. Thus, this witness also attributed the assault on Laxman to accused nos.1, 2 and 4 and the juvenile accused. Accused nos.3 and 4 were undoubtedly known to PW 19 and PW 10, but it appears that none of them were known to PW 20. PW 10, thus corroborated the testimony of PW 19 regarding the attack on Laxman by accused nos. 1, 2 and 4. In this appeal we are not concerned with the evidence implicating the juvenile accused who has already been acquitted in the separate trial and that acquittal order has received finality.
17. The medical report clearly states that in assaulting Laxman, the sword which was before the court, could not have ::: Downloaded on - 09/06/2013 14:51:43 ::: 40 been used. At the same time, the medical report clearly stated that the deceased had sustained injury on his skull, as stated in Column 18 of the post mortem report (fracture of skull right side) and this could have been caused even by hard and blunt object which could be a wooden stick and iron bar or some other hard substance. It is not stated by either PW 10 or PW 19 that while assaulting Laxman, any of the attackers used a chain. It is not the evidence of any of these two witnesses that accused no.
1 or accused no.2 gave a stick blow on the head of the deceased. Therefore, the injury on the head of the deceased resulting into his skull fracture has to be related to the assault by accused no.4. The spot panchanama does not indicate that there was any stone or any hard substance on which the deceased had fallen and thus fractured his skull. The prosecution also did not bring on record that any of the accused had knowledge that the deceased had a pacemaker fitted beneath his chest and, therefore, it has to be presumed that none of the accused had the knowledge that Laxman was a weak person vulnerable to any attack accelerating his death. If this specific knowledge of any of the accused was brought on record by the prosecution, the case of the prosecution would fall under Section 300 thirdly.
::: Downloaded on - 09/06/2013 14:51:43 ::: 4118. Mr. Marwadi the learned counsel for the accused referred to the location of the thrashing floor and the Ambassador Car and submitted that in between there was a cattle shed and, therefore, the assault that had taken place at the thrashing floor could not have been seen from the place where the Ambassador Car was parked. This has no significance to the prosecution case as we have noticed that the eye witnesses for the first attack on Sharad were PW 19 and PW 20 and for the second attack on Laxman the eye witnesses are PW 10 and PW 19. The evidence of all these three wintesses i.e. PW 10, PW 19 and PW 20 is natural and does not suffer from any contradictions or improvisation to the extent it is relevant to the incidents of assaults. At the same time, Laxman died as a result of the injury sustained by him as we have noted in para 12 hereinabove. His death is attributed to the said injury when he was assaulted by accused nos.1 and 4 and taking into consideration the nature of the injury they caused, it was clear that they had the knowledge that such injury would cause his death. After all Laxman was not young and accused no.1 was aware that he was the younger brother of his grandfather i.e. Accused no.2. At the same time, it cannot be said that accused ::: Downloaded on - 09/06/2013 14:51:43 ::: 42 no.4 and accused no.1 had intentions to cause the death of Laxman. The learned Additional Sessions Judge held that the possibility of death of Laxman because of failure of pacemaker cannot be ruled out. This finding is contrary. PW 9 - Dr. Baburao Ghatge who had conducted the post mortem on the dead body of Laxman Pise on 10/11/86 stated that the fracture of the right side skull was seen by him in respect of internal damage and it was extending from 1 inch from middle right posterior fontal, extending downwards middle vascular groove dividing in triradiate fashion, first going to posterior aspect of lower orbital plate and second going to auditory meatus and the third just above the second triradiate line crossing squamaous part of the temporal bone, coming up under posteriorly and obliquely up to parietal emience. In respect of the brain, the said witness had stated that he noticed frontal lobe right contusion, right temporal lobe contusion and left temporal lobe contusion. This evidence went to show that skull of Laxman was fractured because of the injury sustained by him and, therefore, he gave the cause of death, "as shock due to primary failure of brain, secondary to skull fracture". Though Laxman died after 15 days from the date of the incident, it cannot be held with certainty that the cause of death was failure of pacemaker.
::: Downloaded on - 09/06/2013 14:51:43 ::: 43Even Dr. Shahapurkar - PW 23 did not state so. Even if the recovery of swords is discarded, the fact remains that skull fracture could be caused even by a hard and blunt article like a stick.
19. The sequence of events in the whole incident will have to be considered in deciding the intentions/motive of the accused.
It is firstly proved that family disputes of proprerty rights and shares were going on between the parties. The cases before the police authorities as well as courts were filed and some orders were obtained and some properties were put in possession of the complainant party. On the date of the incident initially only three members of the accused party i.e. Accused nos. 1, 2 and the juvenile accused had arrived at the thrashing floor by an autorickshaw. As has been stated in the N.C. at Exh. 77 filed by accused no.2, a scuffle takes place between the parties on the issue of sharing the paddy and PW 19 and PW 20 proceeded towards the Ambassador Car, whereas accused nos.1 and juvenile accused proceeded towards panand and within short time they attacked PW 19 and PW 20 near the Ambassador Car along with accused nos.3 and 4 along with weapons which were not there earlier with them. This panand is not on the boundary ::: Downloaded on - 09/06/2013 14:51:43 ::: 44 of the village and it is some distance away from the village. The weapons included hard and blunt articles as well as cutting edge articles. This went to show that the accused had preplanned the assault. At the first instance they assaulted PW 19 and PW 20 and PW 20 suffered multiple incised wounds which were grievous injuries and in the second incident accused nos.1 and 4 assaulted the deceased. Thus the incident has not taken place on the spot and at the eleventh hour because of the dispute of sharing of paddy crop. The natural inference can be drawn that the accused had intended to cause an assault on the complainant party if they were not allowed to collect and take away the entire harvested paddy. But the intention of the accused party did not seem to cause the death of any of the complainants. However, the assault unleashed by accused no.4 on the head or around the head of the deceased resulted in the fracture of skull. It can be inferred that accused no.4 had the knowledge that with such an assault, Laxman would die, more so when he was an old man. Accused no.1 also participated in the assault unleashed on the deceased but with a stick in his hand.
20. The trial court has convicted the accused with the ::: Downloaded on - 09/06/2013 14:51:43 ::: 45 assistance of Section 149 of IPC and found only four accused guilty. The other two accused came to be acquitted and so called three unknown accused were never traced. The appeal filed by the State against the order of acquittal i.e. Criminal Appeal No. 630 of 1988 is also against the four accused who are the appellants in Criminal Appeal Nos.231 and 232 of 1988.
21. In the premises and for the reasons stated hereinabove, we hereby pass the following order:-
(a) Accused Nos.1, 3 and 4 are convicted for the offence punishable under Section 326 read with Section 34 of IPC for causing assault on and multiple grievous injuries to PW 20 Sharad Pise. They are hereby sentenced to suffer RI for three years and to pay a fine of Rs.1000/-
each, in default to suffer further RI for one month.
(b) Accused nos.1, 3 and 4 are convicted for the offence punishable under Section 323 read with Section 34 of IPC for the assault on and causing hurt to Pradeep Pise (PW
19) and Sharad Pise (PW 20). They are hereby sentenced to suffer RI for six months and to pay a fine of Rs.500/-
::: Downloaded on - 09/06/2013 14:51:43 ::: 46each, in default to suffer further RI for 15 days.
(c) Accused Nos.1 and 4 are convicted for the offence punishable under Section 304 Part II read with Section 34 of IPC for causing the death of Laxman Pise. They are hereby sentenced to suffer RI for five years and to pay a fine of Rs.2000/- each, in default to suffer further RI for three months.
(d) Accused Nos.1, 3 and 4 are hereby acquitted for the offences punishable under Sections 147, 148, 323 and 326 read with Section 149 of IPC and consequently the sentences awarded for the said offences stand set aside.
They are also acquitted for the offence under Section 148 of IPC.
(e) The order of acquittal under Section 307 read with Section 149 of IPC is hereby confirmed.
(f) Accused No.3 is acquitted of all the charges relating to the assault on and leading to the death of Laxman Pise.
::: Downloaded on - 09/06/2013 14:51:43 ::: 47(g) The substantive sentences of accused nos.1, 3 and 4 to run concurrently.
(h) Set off, if any, under Section 428 of Cr.P.C. Shall be available to the convicted accused. The accused were in custody from the following dates:
Accused No.1 - From 29-10-1985 to 2-11-1985 Accused No.3 ig - From 29-10-1985 to 2-11-1985 Accused No.4 - From 29-10-1985 to 2-11-1985 All of them came to be released on bail by this court as per the order dated 15/04/1988.
(i) The fine amount shall, on recovery, be paid to Sharad Pise (PW 20) and Pradeep Pise (PW 19) under Section 357 of Cr.P.C.
(j) Accused Nos.1, 3 and 4 to surrender to their bail bonds within two weeks from today so as to suffer the sentence.::: Downloaded on - 09/06/2013 14:51:43 ::: 48
(k) Criminal Appeal No. 231 of 1988 and Criminal Appeal No. 630 of 1988 stand abated qua accused no.2.
(l) Criminal Appeal Nos. 231 of 1988, 232 of 1988 and 630 of 1988 are allowed partly and Criminal Revision Application No. 249 of 1988 stands disposed off in terms of the above order. Rule in Criminal Revision Application No. 249 of 1988 stands discharged.
(S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.) Mr. Marwadi the learned counsel for the accused made an oral application to extend the time to surrender to undergo the sentence to four weeks instead of two weeks.
Time to surrender is extended upto 6th September, 2009.
(S.J. VAZIFDAR,J.) (B.H. MARLAPALLE,J.) ::: Downloaded on - 09/06/2013 14:51:43 :::