Bombay High Court
Prakash Ashroba Ghule vs The State Of Maharashtra [Along With ... on 10 December, 2007
Equivalent citations: 2008(110)BOM.L.R.105, 2008 CRI. L. J. (NOC) 932 (BOM.) = 2008 (4) AIR BOM R 42 (DB) (AURANGABAD BENCH), 2008 (3) AJHAR (NOC) 969 (BOM.) = 2008 (4) AIR BOM R 42 (DB) (AURANGABAD BENCH) 2008 (4) AIR BOM R 42, 2008 (4) AIR BOM R 42
Author: P.R. Borkar
Bench: Naresh H. Patil, P.R. Borkar
JUDGMENT P.R. Borkar, J.
Page 0107
1. By these two appeals original accused No. 2 Prakash and original accused No. 4 Dnyandeo challenge the order of their conviction and sentence in Sessions Case No. 165 of 2001 passed by the Ist Adhoc Additional Sessions Judge, Parbhani on 30.01.2006. By the said Page 0108 order accused No. 2 Prakash is convicted of the offence punishable under Section 302 of the Indian Penal Code (for short "I.P.C.") and sentenced to suffer imprisonment for life and to pay fine of Rs. 100/- in default to suffer simple imprisonment for six months. Accused No. 4-Dnyandeo is convicted of the offence punishable under Section 324 of the I.P.C. and sentenced to suffer simple imprisonment for one year with fine of Rs. 1000/- in default to suffer simple imprisonment for three months. The two accused have filed separate appeals. Since both the appeals are directed against the same order of conviction and sentence, these appeals are being heard and disposed of together by this common judgment.
2. Initially seven accused were charged for committing offences punishable under Section 147, 148 r/w 149, 324, 302 of the I.P.C. By the order the learned Adhoc Additional Sessions Judge convicted accused No. 2 Prakash only of the offence punishable under Section 302 of the I.P.C. and acquitted of other offences. Accused No. 4-Dnyandeo was convicted only of the offence punishable under Section 324 of the I.P.C. simplicitor and he was acquitted of other offences. Other accused were acquitted of all the offences. There is no appeal filed by the State and as such we have to consider in these appeals whether prosecution has proved the charge against accused No. 2-Prakash (hereinafter referred to as "appellant-Prakash"), has committed offence punishable under Section 302 of the I.P.C. We will also have to find out whether accused No. 4-Dnyandeo (hereinafter referred to as "appellant-Dnyandeo), has committed offence punishable under Section 324 of the I.P.C. In absence of any appeal by the State, it will not be possible for us to consider if the accused have committed any other offences.
3. If we consider the charge at Exh.35, for which the appellants were tried, the offence punishable under Section 302 of the I.P.C. was for committing murder of Aba Dharba Ghule. The charge against appellant-Dnyandeo was for causing hurt to the complainant Datta, Dagadabai, Anjanabai and Shobha the wife of complainant Datta with deadly weapons.
4. According to the prosecution the incident has taken place in two parts. One in the agricultural land of the complainant P.W.3-Datta Ghule and other took place at the outskirts of the village in a "Pandan" (a way through stream). The distance between the agricultural land and the village is two kilometers and distance between "Pandan" and the village is 1/2 km. The incident has occurred at village Dhamdham, Tq. Jintur, Dist. Parbhani.
5. As per prosecution, on 22.05.2001 at about 10=30 a.m. P.W.3-Datta went to his land at Dhamdham. At that time his aunt Anjanabai, Dagadabai, aunt Geetabai and cousin Nagnath and others were working in the field. After sometime original accused No. 1-Ashroba and his sons, namely, present appellant-Prakash, accused No. 3-Gajanan, appellant-Dnyandeo, who was son-in-law of Ashroba and resident of Wazure, accused No. 7-Vishrantibai, accused No. 6-Chandrakalabai and accused No. 5-Gokarnabai came there. Ashroba and his sons started digging the common bund between their land and land of P.W.3-Datta and also started throwing earth into the land of P.W.3-Datta. P.W.3-Datta told them to wait, as his uncle would come and settle the dispute, but accused No. 1-Ashroba and others said that they would not stop and started abusing. Some of them were having axes Page 0109 and sticks in their hands. At that time the appellant-Prakash gave blow with stick on the head of Datta. Accused No. 5 also gave him stick blow. P.W.12-Dagadabai came to intervene. Appellant-Prakash gave blow of axe on her left hand. Anjanabai was also given blows with sticks. Shobhabai was also given blows with stick by accused No. 7-Vishrantibai. Since P.W.3-Datta received injury on his head, he fainted. After sometime he regained consciousness and saw all those accused persons were going away in a bullock cart. He further stated that when his uncle Tejrao (P.W.10) and his grand father Abaji were coming towards land in the "Pandan", the accused beat them with sticks and axes. They were seriously injured. Tejrao and Abaji were injured with axes and thus there was an attempt to kill them.
6. The abovesaid complaint was given by Datta Ghule, while he was in the hospital. Police registered Crime No. 23 of 2001 for the offences punishable under Sections 147, 148, 149, 307, 324, 323, 504 & 506 of the I.P.C.
7. It is also prosecution case that during the incident several persons of both sides were injured and therefore they were admitted in the Rural Hospital at Jintur. Among injured there were Abaji, Shobha (P.W.15), Datta Ghule (P.W.3), Geetabai (P.W.11), Dagadabai (P.W.12), Anjanabai (P.W.9), Nagnath (P.W.13), Tejrao (P.W.10). These were the persons injured from the side of the complainant. On the other hand, appellant-Prakash, Ashroba (accused No. 1), appellant-Dnyandeo, Gokarnabai (accused No. 5), Vishrantibai (accused No. 7) and Gajanan (accused No. 3) were also injured and were taken to Rural Hospital, Jintur and P.W.2-Dr. Waghmare had examined and treated them. A counter case was also filed against the seven persons by original accused-Ashroba.
8. Abaji expired, while he was under treatment, at about 10=00 p.m. on the same day and therefore Police converted the offence under Section 307 of the I.P.C. into 302 of the I.P.C.
9. After completion of investigation, charge-sheet was filed against seven persons of the party of present appellant and seven persons of the party of the complainant. Both the cases were Sessions triable cases. Therefore, those were committed and Ist Adhoc Additional Sessions Judge, Parbhani decided these two Sessions Cases one bearing No. 165 of 2001 against which present appeals are preferred and other Sessions Case was 187 of 2003 which was against the persons of the complainant side. A certified copy of judgment in Sessions Case No. 187 of 2001 is produced before us at the time of hearing of the appeals by the learned Counsel for the appellants.
10. In view of the fact that only two out of seven accused persons were convicted, appellant Prakash was convicted only for the offence under Section 302 of the I.P.C. for committing murder of Abaji and appellant-Dnyandeo is convicted for the offence punishable under Section 324 of the I.P.C. for causing hurt to complainant Datta, Dagadabai, Anjanabai, Shobhabai with deadly weapons and since the appellants are acquitted of other charges, in absence of any appeal by the State, we are restricted only to find out whether there was any sufficient evidence to prove offences against the two appellants before us for which they are convicted.
Page 0110
11. The prosecution examined P.W.2 Datta, P.W.5 Bhagwan, P.W.6-Panditrao, P.W.9-Anjanabai, P.W.10-Tejrao, P.W.11-Geetabai, P.W.12-Dagadabai, P.W.13-Nagnath, P.W.14-Sumanbai, P.W.15-Shobha, P.W.18-Shivaji as eye witnesses. Admittedly, deceased Abaji had not gone to the field and he was not present when the first incident in the land has taken place. It is prosecution case that Abaji, P.W.14-Sumanbai and P.W.18-Shivaji were going towards land from village Dhamdham and when they were in the "Pandan", the accused persons attacked them and Abaji was injured and died as a result of the injuries. There are certain admissions of the prosecution witnesses which raises serious doubt regarding presence of all eye witness in "Pandan", when Abaji was injured. So, first we will consider whether offence under Section 302 of the I.P.C. is proved against appellant-Prakash and thereafter we will consider whether offence under Section 324 of the I.P.C. is proved against appellant Dnyandeo.
12. For appreciating evidence of eye-witnesses, it is useful to refer to injury on the person of deceased Abaji. At Exh. 48, Dr. Patel, is examined and he stated that he performed post-mortem on the dead body of Aba between 7=30 to 8=30 p.m. on 23.05.2001. He found following injuries.
(1) A huge contusion haematoma right frontal and temporal region of scalp, round shape underlying sub-cutaneous haematoma about 10 x 10 cm in size, margins diffused. Age of injury was within 24 hours, caused by hard and blunt object, underlying bone fractured. Nature of injury was grievous and dangerous.
(2) A sutured contused lacerated wound on left temporal region 3 x 1/2 x 1/2" irregular shape and margins caused within 24 hours, by hard and blunt object, underlying bone fractured. It was grievous and dangerous in nature.
(3) Abrasion right thumb laterally 1 x 1 cms. irregular shape and margins, within 24 hours, caused by hard and blunt object, simple in nature.
(4) Abrasion right leg anteriorally, medial one third region, 3 x 3 cms in size, irregular shape and margins, within 24 hours caused by hard and blunt object. It was simple in nature On internal examination, he found following injuries:
(1) Fracture right temporal bone, depressed at front to temporal region. (2) Fracture frontal bone on both sides of mid line linear obliquely directed. (3) Fracture left temporal bone at front temporal region.
(4) Depressed fracture of coronal sutured horizontally in front to parietal temporal region of the scalp.
External injury No. 1 and internal injury No. 1 are corresponding injuries. Similarly external injury No. 2 is corresponding with internal injury No. 2 & 4. Internal injury No. 3 is not corresponding with any of the external injury.
The cause of death was Cardio respiratory arrest due to neurogenic and haemorrhagic shock due to head injury with fracture of skull bones.
13. Dr. Patel stated that external injury No. 1 and 2 are possible with blunt side of the attached axe. They are also possible by blunt side of weapon like Page 0111 stick. The injury Nos. 3 & 4 are possible with stick. Injury Nos. 1 & 2 could cause death in ordinary course of nature. According to the Doctor, injury Nos. 3 & 4 were possible if a person comes in contact with hard and blunt substance like earth. Injury Nos. 1 & 2 were possible with stones. Haematoma is a consequence of the injury and not the injury. In case of blow on the skull, there is counter-cope effect on the brain and the brain moves. In such cases, there may not be corresponding external injury to the opposite side of infliction (of blow). He further stated that injury Nos. 1 & 2 might have been caused in single or more than one blow.
So, it is clear that there was no injury on the neck of deceased Aba.
14. First, we may consider the evidence of P.W.14 Sumanbai w/o. Nagnath Ghule. She stated that she married Nagnath one month before the incident. Her maternal place is at Barda. On the day of incident she came with her father-in-law Abaji to Dhamdham in the morning. They went home, but the house was locked and therefore, she went with Abaji to the field for collecting keys. One person of Barda viz. P.W.18-Shivaji was accompanying them. When they came to "Pandan", they saw that accused persons were beating Tejmal (P.W.10). Abaji went to the rescue of Tejmal. At that time appellant-Prakash delivered blow with an axe on the head of Abaji. Appellant-Dnyandeo also gave blow with "Rumane" from behind. Accused Gajanan and lady accused beat Abaji with stick. P.W.14-Sumanbai ran away from that place. She was scared. Soon thereafter, P.W.15-Shobhabai, P.W.11-Geetabai, P.W.3-Datta, P.W.9-Anjanabai and P.W.13-Nagnath came there. On their arrival, accused went away. On going near Abaji, they found that Abaji was injured. He was taken to the hospital at Jintur.
15. It is argued before us that P.W.14-Sumanbai stated that she ran away on seeing the incident, but in the her cross-examination, she stated that she went for some distance. When she came back, she found that Abaji and Tejmal were lying injured. She could not tell who beat whom. She also stated that she reached first at the place where Aba and Tejrao were lying and then bullock cart came there. So, it is argued before us that P.W.15-Shobha, P.W.11-Geetabai, P.W.3-Datta, P.W.9-Anjanabai and P.W.13-Nagnath must not have seen the incident in "Pandan", though they claim to be eye witness. It was suggested to her that P.W.13-Nagnath, appellant-Prakash, deceased Aba and P.W.10-Tejrao had intercepted the bullock-cart of accused near "Gaokari" village. She denied that accused Ashroba, appellant-Prakash and Gajanan had sustained injury and blood was oozing from their wounds.
16. P.W.18-Shivaji is resident of Barda. He stated that he had come with Aba as Aba had given proposal for marriage of his sister. The prospective groom was from Handil and he and Aba were to go to Handil after leaving Sumanbai in the field. Therefore, he had accompanied Abaji and P.W.14-Sumanbai. It may be noted that he is one of the accused in the counter case and his presence cannot be disputed.
17. According to P.W.18-Shivaji, since the house of Aba was found locked, they first went to the house of sister of Aba by name Vatsalabai. They had tea there and thereafter Shivaji-P.W.18 along with Aba and P.W.14-Suman were proceeding towards field. When they crossed a bridge, accused No. 1-Ashroba and his sons were coming. One of his sons and lady Page 0112 members were in bullock-cart. Thereafter, fighting started between the accused, Abaji and Tejmal. The accused were holding sticks and Rumane. Abaji was beaten by the accused. P.W.18-Shivaji ran away after the fighting started. Thereafter, Nagnath and others brought Aba in the village in a bullock-cart. He had sustained injury on his head. This witness did not say that he saw axe in the hands of any of the accused. His evidence also shows that one of the sons of the original accused No. 1-Ashroba and lady members of his family were in the bullock-cart. It is case of the defence that appellant-Prakash was seriously injured in the field and therefore he was being brought to village in the bullock-cart. Under the circumstances appellant-Prakash could not have caused any injury to Aba as he himself was already seriously injured and had already become unconscious. The evidence of P.W.18 supports that one of the sons of Ashroba was travelling in bullock-cart. He did not say that said son alighted from the bullock-cart. He had seen the original accused No. 1-Ashroba and his other sons from coming on foot.
18. In the cross-examination P.W.18-Shivaji stated that he had seen the accused for the first time after the incident and he could not tell who had beaten whom with what weapon. He had heard name of accused No. 1-Ashroba as he was Police Patil, but he was not knowing names of members of the family of Ashroba.
19. Presence of P.W.10 Tejrao at the time of incident in "Pandan" is not disputed. In-fact, Tejrao was injured in the incident that took place in "Pandan". P.W.10 Tejrao stated at Exh.71 that members of the family i.e. Anjanabai, Geetabai, Dagadabai and Shobhabai, his nephews Datta, Haribhau, his son Sanjay and niece Sunita had gone to the field. He was taking some villagers with him for settling the dispute over common bund. Pandit Bapurao Ghule was with him. When they were proceeding towards the field by "Pandan", all the accused came in a bullock-cart. Original accused No. 1-Ashroba held him and appellant Prakash delivered a blow with axe on his nose. Thereafter, appellant-Dnyandeo delivered blow with Rumane on his knee, back and neck. Original accused-Ashroba held his brother, appellant-Prakash delivered blow with axe on the both sides of neck of Aba. Appellant-Dnyandeo delivered blows with Rumane on parietal region and head of Aba. Other accused beat Aba with sticks. We have noted earlier, Aba had only four injuries. Two abrasions, one on right thumb, other on right leg and main injuries were on frontal and temporal regions of the head. So, we cannot believe the words of P.W.10-Tejmal that appellant-Prakash had given blows with axe on both sides of neck of Aba. There was no injury on the back. However, his evidence clearly shows that appellant-Dnyandeo had given blows with Rumane on parietal region and head of Aba and the Doctor has accepted that said injuries were possible even with a stick. Rumane is a heavy agricultural implement. Rumane attached in this case was of 28 inches in length with 7 inches in width. Its handle was of 4 inches diameter and 6 1/2 inches in length. The axe article No. 37 was having blade having 4 1/2 inches long sharp side and width of 2 1/4 inches. So, the possibility of deceased Aba receiving injuries on head due to Rumane at the hands of appellant-Dnyandeo Page 0113 cannot be ruled out. In-fact, this is the possibility voiced by the learned advocate for the appellant. It may be noted that, so far as P.W.14 Sumanbai and P.W.18 Shivaji are concerned, P.W.14-Sumanbai married just a month before the incident and P.W.18-Shivaji was from village Barda. So, it is doubtful, whether they were knowing all the accused at the time of incident. So, when they stated that appellant-Prakash had given blows, we will have to consider that they were new to the villagers of Dhamdham.
20. So far as P.W.10-Tejrao is concerned, he stated that appellant-Prakash had delivered blows with axe on his nose and on both sides of neck of Aba. We have considered that there was no injury on the neck of Aba. P.W.2-Dr. Waghmare, who had examined P.W.10-Tejrao, found three contusions on the person of Tejrao. One contusion of 5 x 2 cms. on right thigh laterally, second contusion 2 x 2 cms on right parietal region and third contusion 2 x 1 1/2 x 1/2 cms. on nose with both nostrils bleeding. According to the Doctor, the injuries were caused by hard and blunt object. It may also be considered that though Dr. Waghmare has examined P.W.15-Shobha, P.W.11-Geetabai, P.W.12-Dagadabai, P.W.13-Nagnath and P.W.3-Datta, as injured persons on the complainant's side, none of them had any incised wound. There were contusion and abrasions. So use of the axe is doubtful.
21. Along with P.W.10-Tejrao, P.W.6-Panditrao was proceeding towards village. P.W.6-Panditrao is an eye-witness, who is outside the family of complainant-Datta. In-fact, he had accompanied Tejrao to settle the dispute between complainant party and accused party. According to him, when they came for about 2 furlong of village, they saw a bullock-cart coming from front side. Appellant-Prakash, accused Gajanan, Ashroba, Vishrantibai, Gokarnabai were in the bullock-cart. P.W.10-Tejrao on seeing the bullock-cart ran away. He also went back. At the outskirts of village, quarrel ensued between the accused party and the complainant party. In the quarrel Ashroba, Prakash and Gajanan were there on the other hand and in the complainant party there were P.W.10-Tejrao, P.W.3-Datta. They had come in the bullock-cart from the field later on. Both sides beat each other with sticks. Aba was there. The witnesses tried to control both the sides and he also sustained injury on his left forearm. He denied that on seeing Tejrao, accused sitting in the bullock-cart said that Tejrao should be beaten. He also denied that the appellant-Prakash delivered blows with axe on the nose of Tejrao. He also denied that appellant-Prakash beat Tejrao with Rumane and appellant-Prakash delivered blow with axe on the head of deceased Aba. This witness was declared hostile as he was not supporting the prosecution. But, he stated in his cross-examination that Tejrao, Aba and 3-4 persons obstructed the bullock cart and attacked inmates of the bullock-cart and quarrel followed. Lot of people gathered at the time of incident. This witness though declared hostile, he is an independent witness. He has denied use of the axe by the appellant.
22. Other witnesses on the incident in "Pandan" are from the family of P.W.3-Datta. According to Datta, after the incident in the field was over, the accused left for village in their bullock-cart. They were following accused persons in another bullock-cart in bloodstained state. P.W.10-Tejrao, P.W.-6 Pandit Ghule were coming towards field for settling the dispute. Page 0114 Accused beat Tejrao. His uncle Aba came there. He also sustained injuries given with sticks and axe. Pandit Ghule was requesting not to beat. Thereafter, they took Abaji to the village. So, this witness has not stated that it was the appellant-Prakash who gave blows to Abaji. In the cross-examination, this witness admitted that in the bullock cart accused Prakash and Gajanan were being taken away. Ashroba, Gokarnabai and Vishrantibai were also sitting in the bullock-cart. He denied that appellant-Prakash had sustained injury because of their beating.
23. P.W.9 Anjanabai wife of Tejrao stated that when they came to "Pandan", they saw that appellant-Prakash was giving blows with axe on both side of neck of Aba and her husband was given blow on nose by appellant-Dnyandeo with Rumane. Appellant-Dnyandeo also gave blow on knee of husband Tejrao. According to her, appellant-Prakash had delivered blows with axe on both sides of neck with its blade side. She stated that when her husband was being beaten, she fell on his person and appellant-Dnyandeo gave her blows with Rumane, but omission to that effect was brought on record.
24. P.W.11 Geetabai has also stated that accused had beaten Tejrao near "Pandan" when he was bringing persons for settlement. She came to know of beating Tejrao later on. Aba was beaten by the accused on both sides of neck with axe. She came to know this on reaching the village. Thus, P.W.11 has stated in her cross-examination that she has not seen the incident near Pandan. She also stated that she was brought to the village in the bullock-cart by their neighbours. So, it shows that the persons who were sitting in the bullock cart with Geetabai had not witnessed the incident that took place in "Pandan". This witness was seriously injured in the field. She sustained a fracture.
25. P.W.12-Dagadabai, examined at Exh.73, has stated that they followed the accused persons in another bullock-cart. When them came near outskirts of the village, P.W.6-Pandit and P.W.10 Tejrao were seen coming. All the accused beat Tejrao and thereafter Aba came there. Accused also beat Aba on his back, head and on both sides of neck. Aba became unconscious and died in the hospital. In her cross-examination, she stated that the blow with axe was given to Aba with its blade side. We have noted that there was no injury found to be caused with any sharp weapon on the person of Aba.
26. P.W. 13 Nagnath stated that when they were returning from the field to village, the accused had beaten to his father, as his father was coming from village. Appellant-Prakash was holding axe, appellant-Dnyandeo was holding Rumane. Accused gave blows with axe on both side of the neck of Aba and appellant-Dnyandeo gave blows with Rumane on the back, abdomen and private parts of his father Aba. However, in the cross-examination, he stated that when they reached the place, Aba was lying unconscious. Tejrao was standing there. He did not know who had taken Tejrao and Aba to the village. This witness Nagnath, Sunita, P.W.9-Anjanabai, P.W.3-Datta were in the bullock-cart. They alighted from bullock-cart near "Pandan" as Aba was to be put into bullock-cart. So, it is doubtful whether those person have seen the incidence. It may be noted that P.W.3-Datta has specifically stated that they reached after the incident. This witness has also stated Page 0115 that when they reached the spot, Aba was lying unconscious. This witness stated that appellant-Prakash had given blows with axe from blunt side to Aba on both sides of neck. It may be noted that there was no injury what-so-ever on the neck of the deceased Aba. The omission was also brought on record that this witness has not stated before Police that appellant-Dnyandeo delivered blows with Rumane on abdomen and private part of Aba. In the further cross-examination, this witness Nagnath stated that they reached the place of incident i.e. "Pandan" 15 minutes afterwards. When they reached, accused had left the spot. So, this admission goes a long way and clearly establishes that P.W.3-Datta, P.W.9-Anjanabai, P.W. 13 Nagnath were not witnesses to the second incident.
27. P.W.15-Shobha who is wife of P.W.3-Datta has stated at Exh.79 that when they were returning back in bullock-cart, accused saw Tejrao and beat him. Aba was also beaten by the accused. Aba was beaten by the accused with axe, stick and Rumane. Appellant-Prakash delivered blows of axe to Aba from the blunt side. Accused Dnyandeo beat Aba with Rumane. In the cross-examination she stated that she could not understand in the melee as to who was beating whom. According to her all of them were lying in seriously injured state in the field and therefore Subhash Kagne, the neighbour had put them in the bullock-cart. According to her, the bullock-cart of the accused had gone ahead for 300-400 paces. The fighting had started before they reached "Pandan". They could not participate in the fight and did not try to rescue Tejrao and Aba. She stated that she was not knowing accused Prakash, Gajanan had sustained bleeding injuries. The omission was brought on record that she did not tell to Police that appellant Prakash had given blow to Aba with blunt side of axe.
28. It is case of the appellant Prakash that he was seriously injured in the field and therefore he was being brought to village in bullock-cart. It is argued that he had become unconscious as a result of head injury and question was raised whether appellant-Prakash could have participated in the incident that took place in the "Pandan".
29. P.W.2-Dr. Waghmare at Exh.15 has stated in his cross-examination that he had examined appellant Prakash, Appellant-Dnyandeo, Ashroba and Gokarnabai as they were referred to him. Prakash had six injuries. When appellant-Prakash was being examined, he was vomiting. In case of vomiting associated with head injury, some damage to the brain cannot be ruled out. Appellant-Prakash had head injury. He was referred to Civil Hospital and thereafter it was revealed that there was no injury to his brain. During the examination, serum was being discharged from the wound. There was tenderness on the right wrist area of Prakash. The patients were brought to the hospital in bleeding state. All the wounds of Prakash were sutured by him.
30. P.W.5-Bhagwan was witness to the incident that took place in the field. He stated that appellant-Prakash and Gajanan had sustained injuries on their heads. They were lying on the ground. So, Prakash and Gajanan were placed in a bullock-cart and they were sent to the village. Prakash was unconscious. So, while leaving the field, Prakash was unconscious. According to this witness, remaining persons went to village in bullock-cart Page 0116 after about half an hour. In other words, the prosecution witnesses who went in bullock-cart, went after half an hour and that supports the case of the defence that they were not eye-witnesses to the incident that took place in "Pandan".
31. At this stage, we may also note that seven of the prosecution witnesses were facing Sessions Trial for the offences punishable under Section 147, 148, 326 r/w 149 and 506 r/w 149 of the I.P.C. Certified copy of Sessions Trial No. 187 of 2003 is produced on record and in that case also the learned Adhoc Additional Sessions Judge has come to a conclusion that all the seven accused have committed offences under Section 147 and 323 of the I.P.C. P.W.5-Bhagwan, who was independent witness and who had came to the field on hearing quarrel, has stated that Prakash was in unconscious state and therefore he was being carried in the bullock-cart. In para 80 of the judgment, the learned Additional Sessions Judge has observed that there were no injuries on the neck of Aba as stated by all the witnesses, but there was only injury on the head. So, it is stated that in the melee, the witnesses might not have seen the exact part of the body, whether head or neck, when the blows were given.
32. In our considered opinion, taking totality of the circumstances, it cannot be said that the prosecution proved beyond reasonable doubt that appellant-Prakash, who had serious head injury, who had become unconscious and had to be carried in the bullock-cart, was really in a position to attack with an axe and give blows with it to deceased Aba. Under the circumstances, appellant-Prakash cannot be convicted for causing murder of Aba and he will have to be acquitted of the offences punishable under Section 302 of the I.P.C. It may be noted that though there is evidence to show that appellant-Prakash did cause grievous hurt with deadly weapon to some witnesses in the field, still he cannot be convicted for the same in this appeal, as the learned Adhoc Additional Sessions Judge has acquitted him of the charge for the offence punishable under Section 147, 148, 324 & 149 of I.P.C.
33. Section 386(b)(ii) of the Code of Criminal Procedure, 1973 is very clear. Once it is proved that appellant-Prakash was not responsible for causing death of Aba and therefore he is entitled to acquit under Section 302 of the I.P.C., we cannot convict him for causing grievous or simple hurt to other witnesses. The phrase "alter the finding" used in Section 386(b)(ii) cannot be exercised for the purpose of reversing order of acquittal in respect of offence charged while dealing with appeal in respect of another offence charged and found proved. Here we rely on the case of "State of West Bengal v. Laisal Haque and Anr. etc." , "Selly v. State of Kerala" 2002 Cr.L.J. 1207. In "Amar Singh and Ors. v. State of Rajasthan" , no appeal was preferred by the Government against the order of acquittal recorded by the learned Sessions Judge Page 0117 acquitting the appellants of the charge under Section 307 read with Section 149, and convicting them of the lesser offence under Section 325 read with Section 149 for having assaulted Shiv Prasad and Maan Singh earlier that day. Since there was no appeal against the acquittal of the appellants under Section 307 of the Indian Penal Code, the High Court could not have altered their conviction under Section 325 to Section 307, both read with Section 149 of the I.P.C.
We may also refer to the case of "State of Andhra Pradesh v. Thadi Narayana ", in which following law is laid down in Para 9.
In a case where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court. If an appeal is preferred against an order of acquittal by the State and no appeal is filed by the convicted person against his conviction it is only the order of acquittal which falls to be considered by the Appellate Court and not the order of conviction. Similarly, if an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State than it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal. Therefore, the assumption that the whole case is before the High Court when it entertains an appeal against conviction is not well-founded and as such it cannot be pressed into service in construing the expression" alter the finding.
34. We may now consider the evidence in support of conviction of appellant-Dnyandeo, who was original accused No. 4, under Section 324 of the I.P.C.
35. It is clear from the discussions held earlier that there is evidence to show that appellant-Dnyandeo used Rumane while causing injury to Aba. We may refer to evidence of P.W.14-Sumanbai and P.W.10-Tejrao. The witnesses have also stated that appellant-Dnyandeo has injured even Tejrao and Tejrao sustained injury as discussed above.
36. Apart from it, it is also clear that in the field appellant-Dnyandeo has taken leading part. Dr. Waghmare, who was Medical Officer in Rural Hospital, Jintur had examined the prosecution witnesses i.e. P.W.15-Shobha, P.W.11-Geetabai, P.W.12-Dagadabai, P.W.9-Anjanabai, P.W.13-Nagnath, P.W.10 Tejrao and P.W.3-Datta. All these persons have sustained various injuries. They were examined at about 4.00 p.m. on 22.05.2001. Shobha had two contusions, one on back and one on right thumb area. Shobha had also an abrasion over scalp, right parietal area. P.W.11-Geetabai had abrasion on right wrist, which was found to be a fracture of right wrist. P.W.12-Dagadabai had CLW on left fore-arm, contusion on left leg and left shoulder. P.W.9-Anjanabai had two abrasions on right eye-brow and left parietal region and two contusions on cubital area and left thigh. P.W.13-Nagnath had contusion on left little finger and abrasion on right Page 0118 parietal region. P.W.3-Datta had six contusions on right arm, right little finger, left arm, left fore arm, back and right parietal area. He had also one abrasion on right middle finger. PW 10-Tejrao had fracture of nasal bone.
37. All the witnesses have stated that appellant-Dnyandeo used Rumane in causing injuries in the field. P.W.5-Bhagwan has stated that he had seen quarrel going on between the complainant party and accused party. According to him all the accused persons had come to the field of accused Ashroba. He did not give details of the incident.
38. P.W.9-Anjanabai, however, has stated that appellant-Dnyandeo was holding Rumane and he had caused fracture of the hand of P.W.11-Geetabai.
39. P.W.11-Geetabai in her statement has stated that it was appellant-Dnyandeo who had given blow on her hand, because of which she sustained fracture. There is no reason to disbelieve this witness.
40. P.W.10-Tejrao has also stated that appellant-Dnyandeo had given blows with Rumane on his knee, back and neck. P.W.12-Dagadabai has stated that appellant-Dnyandeo had beaten P.W.3-Dattu. All these witnesses have stated that appellant-Dnyandeo was holding Rumane. P.W.15-Shobha also referred to appellant-Dnyandeo giving blow to her husband with Rumane in the field. Absolutely, there is no reason to disbelieve these witnesses, though they are from same family. The evidence of all these witnesses clearly establishes that in the field the accused party was aggressive. They were damaging the common bund and throwing soil in the field of complainant party and when there was protest, they attacked the complainant witnesses and injured them. It appears that in the said incident both sides injured persons of other side. In the circumstances of the case, we are satisfied that there is sufficient evidence against appellant-Dnyandeo for his conviction under Section 324 of the I.P.C. So far as his role is concerned, there is no reason to disbelieve the prosecution witnesses.
41. Panch witnesses on discovery panchanama in this matter have turned hostile. API Subhash Rathod (P.W.16) has proved the discovery panchanama whereby appellant-Prakash has produced axe, rumane and five sticks. C.A. report shows that there was no blood on axe and three sticks sent to C.A. There was human blood on Rumane and two sticks. So, this also raises question, whether the axe was really used in the incident.
42. Before we part with this judgment, we express displeasure regarding the manner in which the Charges at Exh.35 are framed. The learned First Adhoc Additional Sessions Judge, Parbhani framed charges under Section 147, 148 r/w 149, 324, 302 r/w 34 of the I.P.C. He overlooked that offence under Section 148 of the I.P.C. is an individual offence committed by the person who is guilty of rioting being armed with deadly weapon or anything which used as weapon of offence is likely to cause death. So, it is punishment for only those members of the unlawful assembly who are guilty of rioting being armed with deadly weapon or weapon with anything which used asweapon of offence, if used likely to cause death. For others there is punishment under Section 147 of the I.P.C.
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43. Similarly, it is not clear why there is no charge under Section 324 r/w 149 of the I.P.C. and why there was only charge under Section 324 of I.P.C. simplicitor. There should have been charge under Section 324 r/w 149 of the I.P.C., if common object of the unlawful assembly was to injure persons of other side with deadly weapons. Similarly, all the seven accused are charged for committing murder of Aba at the "Pandan". There is no explanation as to why there is no charge under Section 302 r/w 149 or under Section 302 r/w 34 of I.P.C. if as per charge murder is committed by all seven accused. It is no doubt duty of the judge to frame proper charge, but concerned Public Prosecutor also owes it to the institution that before he proceeds with the evidence he should verify the charge and request Court to amend and correct the charge if required. In this case, some of the witnesses like P.W.3-Datta and P.W.11 Geetabai had received grievous injuries and there is no charge under Section 325 or 326 of the I.P.C.
44. In this case the incident had occurred on 22.05.2001. The trial continued for a long time. As many as 18 witnesses have been examined. There is no appeal by the State for the individual conviction of appellant-Prakash for the offence punishable under Section 302 of the I.P.C. and of appellant-Dnyandeo for the offence punishable under Section 324 of the I.P.C. simplicitor. These two accused have been also acquitted of the offences under Section 147, 148 of the I.P.C. Appellant-Prakash is specifically acquitted of the offence punishable under Section 324 of the I.P.C. and appellant-Dnyandeo is acquitted of the offence punishable under Section 302 of the I.P.C.
45. The Criminal Appeal No. 145 of 2006 is allowed. The judgment and order of conviction and sentence passed against the appellant-Prakash s/o. Ashroba Ghule by the Ist Adhoc Additional Sessions Judge, Parbhani in Sessions Trial No. 165 of 2001, on 30.01.2006, is quashed and set aside. The appellant is acquitted of the offence punishable under Section 302 of Indian Penal Code. He shall be set at liberty forthwith if not required in any other crime. The fine amount if paid by appellant be refunded to him.
46. The Criminal Appeal No. 144 of 2006 is dismissed. The judgment and order of conviction and sentence passed against the appellant Dnyandeo s/o. Bapurao Sangle by the trial Court stands confirmed. His bail bond stands cancelled. He shall surrender to his bail. He is entitled to set off in accordance with the provisions of Section 428 of the Code of Criminal Procedure, 1973.