Bombay High Court
Rahul Baburao Pawar vs The State Of Maharashtra on 31 March, 2010
Author: B.H.Marlapalle
Bench: B. H. Marlapalle, Mridula Bhatkar
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srk
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 ::: Downloaded on - 09/06/2013 15:47:23 ::: 3 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 4 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 5 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.
::: Downloaded on - 09/06/2013 15:47:24 ::: 63. 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 7 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 8 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 9 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 10 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 11 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].
::: Downloaded on - 09/06/2013 15:47:24 ::: 128. 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.
::: Downloaded on - 09/06/2013 15:47:24 ::: 13(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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 14 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:
::: Downloaded on - 09/06/2013 15:47:24 ::: 15(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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 16 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 17 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.::: Downloaded on - 09/06/2013 15:47:24 ::: 18
(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-
::: Downloaded on - 09/06/2013 15:47:24 ::: 19door 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 20 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.
::: Downloaded on - 09/06/2013 15:47:24 ::: 21Yashwant 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 22 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 23 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 24 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 25 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 26 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 27 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 28 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 29 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 30 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 31 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 32 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.
::: Downloaded on - 09/06/2013 15:47:24 ::: 3317. 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 ::: Downloaded on - 09/06/2013 15:47:24 ::: 34 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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