apeal310.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.310 OF 2002
1] Janardhan Jagoba Waghade,
Aged 47 years.
2] Baba Jagoba Waghade,
Aged 40 years.
3] Chandrabhan Dhanba Sahare,
Aged 41 years.
4] Kisan Dhanba Sahare,
Aged 41 years.
All resident of Pardi [Heti]
Tahsil Karanja [Gh],
District Wardha.
[Presently in Central Jail] ....... APPELLANTS
...V E R S U S...
State of Maharashtra,
through Police Station Officer
Karanja [Gh], Tahsil Karanja,
District Wardha. ....... RESPONDENT
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Shri Abhay Sambre, Advocate for Appellants.
Shri N.B. Jawade, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 21.08.2017 DATE OF PRONOUNCING THE JUDGMENT : 19.12.2017 The appellants seek to assail the judgment and order ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:17 ::: apeal310.02.J.odt 2 dated 09.05.2002 passed by the 2 nd Additional Sessions Judge, Wardha in Sessions Trial 93/1996, by and under which, the appellants are convicted for offence punishable under section 304 Part II read with section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.500/- and are further convicted for offence punishable under section 326 read with section 34 of the IPC and are sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.250/- and are further convicted for offence punishable under section 324 read with section 34 of IPC and are sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs.250/-. The appellants, who faced trial along with one Ambadas Gadekar are acquitted of offence punishable under sections 147, 148 and 302 read with section 149 of IPC while accused 5 Ambadas Gadekar is acquitted of all the offences.
2] Heard Shri Abhay Sambre, the learned counsel for the appellants and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent/State.
3] The gist of the prosecution case, as is unfolded during ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:17 ::: apeal310.02.J.odt 3 the trial, is thus :-
P.W.1 Anil Bhimraoji Chaudhari and accused 1 Janardhan Jagoba Waghade were engaged in illicit liquor sale. Since P.W.1 Anil parted company with accused Janardhan, relations soured. On 12.07.1995 between 04:00 to 05:00 p.m. P.W.1 Anil was returning to his residence from the agricultural field and on the way noticed Ganpat Tiple, Nago Bhoi and others near the forest octroi post and approached them. In the interregnum, accused arrived on the scene, abused P.W.1 Anil and accused Janardhan inflicted stick blows on P.W.1, who ran towards his residence. Accused then assaulted Anil with axe and gupti, hearing the hue and cry Anil's mother Laxmi Bhimrao Chaudhari (P.W.5) and grand-father Sahadeo arrived at the scene. Accused Baba assaulted P.W.1 Anil on the head with an axe. Accused also assaulted P.W.5 Laxmi and Sahadeo. Injured Anil, Sahadeo and Laxmi were taken to the Primary Health Centre at Karanja by some villagers in an auto-rickshaw. 4] Police Sub-Inspector Bhaskar who was then attached to Police Station Karanja as Head Constable having received information from the Primary Health Centre went to the Primary Health Centre and recorded the dying declaration of P.W.1 Anil, ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 4 which is treated as the First Information Report is marked Exh.30 on the record of the trial court. On the basis of Exh.30, offence punishable under section 326 read with section 34 of the IPC was registered at 12-40 hours on 12.07.1995.
5] The Medical Officer attached to the Rural Hospital, Karanja Dr. Aparna examined the injured Anil Chaudhari and noticed the following injures :-
1) Deep lacerated wound on forehead extending to the middle of the nose having size 5" long x deep with bleeding present edges sharp.
2) Deep cutting wound on left ear pinna.
3) Lacerated wound on the chin having size 2 cm. x 1 cm deep.
4) Blackness and swelling of right eye.
Dr. Aparna accordingly issued medical certificate which is marked Exh.99 on the record of the trial court.
Dr. Aparna examined Laxmi Bhimrao Chaudhari (P.W.5) and noticed the following injures on her person :-
(1) Lacerated wound on the scalp 5 x 1 Cm. deep.
(2) Swelling left forearm with pain.
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Dr. Aparna accordingly issued medical certificate which is marked Exh.100 on the record of the trial court.
Dr. Aparna also examined injured Sahadeo Damduji Raut then aged 70 years and noticed the following injuries :-
(1) Lacerated wound on scalp 3 cm. x 1 cm deep there was complaint about body ache.
She accordingly issued medical certificate which is marked Exh.101 on the record of the trial court. 6] The spot panchnama was prepared on 13.07.1995 (Exh.33) sample of earth mixed with blood was seized from the spot vide Exh.34, statement of injured Sahadeo was recorded on 13.07.1995 and the accused arrested on 13.07.1995. The blood stained clothes produced by accused Janardhan and accused Baba were seized vide seizure panchnama Exh.59 and Exh.61 respectively and statements of witnesses were recorded. 7] Injured Sahdeo expired at 07:45 p.m. on 14.07.1995 while undergoing treatment in the Hospital at Karanja, inquest panchnama of the dead body was prepared on 15.07.1995, the autopsy was conducted by Dr. Gopal who noticed the following ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 6 injures on the body on external examination :-
(1) injury over occipital region of scalp having size 3 cm. x 1 cm. Injury was sutured.
(2) abrasional injury near left knee, size 1 cm. x 1 cm.
(3) abrasional injury over left arm, size about 3 cm. superficial.
Dr. Gopal issued postmortem examination report (Exh.48) in which the cause of death is opined thus :-
"In my opinion the cause of death was traumatic contusion injury over head (scalp) chronic chest disease old age with cardio respiratory".
8] The Investigating Officer seized two towels with blood stains which were produced by prosecution witness Kusum vide Exh.37 on 15.07.1995. Accused Chandrabhan produced one bamboo stick which was seized vide Exh.38, accused Kisan produced one ubhari which was seized vide Exh.39, clothes of accused Baba was seized vide seizure memo Exh.61, pursuant to memorandum of admission under section 27 of the Indian Evidence Act, ubhari and axe were discovered at the instance of accused Janardhan and Baba.
9] The culmination of investigation led to submission of ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 7 charge-sheet in the Court of Judicial Magistrate, First Class, Karanja who committed the case to the Sessions Court. The learned Sessions Judge framed charge under sections 147, 148, 302 read with section 149 and 326 read with section 149 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The defence is of total denial and false implication.
10] The prosecution has examined as many as 15 witnesses, to wit :-
Injured Anil (PW-1), Panch Ramchandra (PW-2), witness Kusum (PW-3), Panch Liladhar (PW-4), injured Laxmi (PW-5), P.C. Vijay (PW-6), H.C. Arjun (PW-7), Dr. Gopal (PW-8), Revenue Inspector Suresh (PW-9), panch Hansaraj (PW-10), witness Amarsingh (PW-11), witness Narayan (PW-12), I.O. Ramesh (PW-
13), I.O. PSI Bhaskar (PW-14) and Dr. Aparna (PW-
15).
11] In view of the finding recorded by the learned Sessions Judge, that the deceased committed offence punishable under section 304 part-II read with section 34 of IPC by assaulting Sahadeo Damduji Raut with axe and causing the death of Sahadeo, I deem it appropriate to analyze the evidence on record to satisfy the conscious of the court that the death of Sahadeo is attributable to the assault.
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Concededly, Sahadeo expired at 07:45 p.m. on 14.07.1995. P.W.1 Anil was suggested in the cross-examination that Sahadeo was discharged from the hospital and was in the village on the next day of the incident. The response of P.W.1 is thus :-
I do not know whether on the next day of the incident my grand father came back to our village from Nagpur. I have not enquired whether my grand father had been to our village from the hospital on the next day, when I was discharged from the hospital.
P.W.2 Ramchandra Lahanji Tiple, who did not support the prosecution, stated thus in the cross examination on behalf of the accused :-
On the date of incident it was Bazar day. I had gone to the Bazar on that day at about 4 to 5 p.m. and returned back at 7 p.m. It is true that on the 3 rd day of Akhadi I had seen Sahadeo in our village, in the morning. I do not know whether on the 3 rd day of incident had been to his field also. I came to know from the villagers on the 3rd day of the incident again Sahadeo has taken to the hospital at Karanja (Gh) in the evening.
Kusum Nehare, the grand-daughter of Sahadeo who is examined as P.W.3 admits thus :-
It is true that after incident I was staying in our village. It is true that on the 3 rd day of the incident my grand father Sahadeo came back to our village from the hospital in the morning, and staying in the village for the whole day. It is true that on the 3 rd day of the incident when my grand father came back to our house he has taken meal etc. It is not true that on the 3 rd day ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 9 of the incident my grand father also visited to our field. However, on the 3rd day of the incident my grand father visited to the other villagers. It is true that on the 3 rd day of the incident in the evening time, my grand father was not feeling well, and therefore again he was taken to the hospital at Karanja (G).
Laxmi, the injured grand-daughter of Sahadeo who is examined as P.W.5 states thus in the cross-examination :-
I was discharged from the hospital after giving me medical treatment in the hospital. It is true that I was discharged from the hospital on the very day. It is true that my father Sahadeo came back to our village on the 3rd day of the incident, from the hospital. It is true that when my father came back from the hospital he has taken meal and say in the village for the whole day. It is not true that on the 3 rd day of the incident my father had gone towards the field. It is true that on the 3rd day of the incident in the evening time my father was not feeling well and therefore again he was taken to the hospital at Karanja (Gh). It is true that when my father was again taken to the hospital on the 3 rd day of the incident he died in the hospital.
12] P.W.8 Dr. Gopal Bhagat who conducted the autopsy admits that the injury suffered by Sahadeo was not sufficient to cause death in ordinary course of nature. It would be apposite to reproduce the cross-examination of Dr. Gopal Bhagat which reads thus :-
It is not true that at the time of preparing P.M. report the earlier injury certificate of deceased Sahadeo was shown to me. It is true that the injury sustained by Sahadeo were simple in nature and therefore he was not refer to the hospital at Nagpur by Duty Doctor.::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 10
Patient Sahadeo was admitted in P.H.C. Karanja (G) on 12-7-95 to till his death. It is true that injury caused by Sahadeo was not sufficient to cause the death in ordinary course of nature. It is possible that Sahadeo died due to old age, chronic disease, chest disease and respiratory arrest. It is true that injury shown in P.M. report Exh. 50 is due to possible due to fall on hard object like stone or iron pipe or part of the cart.
13] A holistic appreciation of the evidence on record, and in particular the evidence of Dr. Gopal Bhagat who conducted the autopsy on the body of Sahadeo, renders possible an alternate hypothesis that the death of Sahadeo may not be due to the injury suffered in the assault. It is trite law, that an alternate hypothesis is reasonably and possibly discernible from the evidence on record, the benefit of the doubt must necessarily go to the accused. I am inclined to give the benefit of the doubt to the accused and to hold that the prosecution has not established that the death of Sahadeo is due to injuries suffered in the incident.
14] The injured Anil (P.W.1), has deposed that at 04:00 p.m. on 12.07.1995 accused Janardhan pelted stone on the left ear of the witness causing the witness Anil to fall down on the ground. P.W.1 approached the Police Patil of the village who advised P.W.1 to lodge a report at Karanja Police Station. P.W.1 Anil, mother, grand-father Sahadeo accompanied by some persons were ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 11 proceeding towards the Police Station in an auto-rickshaw at 06:00 p.m. or thereabout, accused arrived in front of the house and assaulted P.W.1 Anil, mother Laxmi and grand-father Sahadeo, is the deposition. It is stated that accused Baba was armed with an axe, Janardhan was armed with ubhari and accused Kisan and Chandrabhan were armed with stick. Accused Baba assaulted Sahadeo with axe and all the accused assaulted Sahadeo with axe and ubhari, is the deposition. In the cross- examination, it is brought on record that the statement that P.W.1 Anil, P.W.5 Laxmi and Sahadeo were proceeding to Karanja in auto-rickshaw, is an omission. Accused came in front of the house and assaulted P.W.1, P.W.5 and Sahadeo with axe and stick is again an omission. The statement that the accused Kisan and accused Chandrabhan assaulted P.W.1, P.W.5 and Sahadeo with stick, is an omission. The statement that the accused Janardhan pelted stone on the person of Sahadeo when Sahadeo was sitting in the cart, is again an omission. The statement that accused Baba assaulted Sahadeo with axe and that accused 1 to 4 assaulted Sahadeo is again an omission. The omissions are duly proved through P.W.14 Bhaskar Awathale.
P.W.1 Anil admits in the cross-examination that at the time of the incident he was under the influence of liquor. ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 12 However, he denies the suggestion that he was brandishing a stick and suffered accidental injury by falling in the pit dug in the court- yard of the house. It is further elicited from P.W.1 that he was unconscious when police came to the Karanja hospital and regained consciousness after 10 to 12 hours when he was admitted in the hospital at Nagpur. The suggestion that P.W.1 fell unconscious and therefore, was not aware as to who assaulted Sahadeo, is denied.
15] P.W.3 Kusum has deposed that accused Janardhan pelted stone on the person of P.W.1 Anil who suffered bleeding injury. She then states that Janardhan pelted a stone on Sahadeo who was sitting on the cart. She states that when P.W.5 Laxmi came out from the residence, she was assaulted on the head by Janardhan who picked up a stick from the fencing and assaulted Laxmi on the head with the stick. She then states that P.W.1 Anil was assaulted when he tried to intervene. P.W.3 Kusum has deposed that when P.W.1 and P.W.5 came outside the house and boarded the auto-rickshaw, accused pulled P.W.1 from the auto and assaulted him. Accused Kisan and accused Chandrabhan assaulted Sahadeo with the rod of the axe on leg. Accused Baba inflicted an axe blow on the head of Sahadeo and accused ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 13 Janardhan assaulted Sahadeo with ubhari, is the deposition.
Significant omissions are brought out in the cross-examination, which are duly proved. Illustratively, the statement that Janardhan pelted stone on P.W.1 Anil is an omission. The statement that Janardhan picked up stick from the fencing and assaulted P.W.5 Laxmi is again an omission. The statement that accused Janardhan assaulted P.W.1 when P.W.1 attempted to intervene, is an omission. The statement that accused pulled Anil out from the auto-rickshaw and assaulted him, the statement that accused Kisan and Chandrabhan assaulted Sahadeo on leg with the rod of axe, the statement that accused assaulted Sahadeo, Laxmi and P.W.1 Anil are all omissions.
P.W.5 Laxmi Chaudhari states that accused Janardhan pelted stone on the person of Anil causing injury, that Anil approached the Police Patil, accused Janardhan and accused Baba assaulted Anil near the octroi post, accused Janardhan was armed with ubhari and accused Baba was armed with an axe, accused Janardhan pelted stone on the person of Sahadeo who was sitting on the cart and assaulted the witness Laxmi, is the deposition. It is further deposed that accused Janardhan assaulted Sahadeo with axe rod and accused Baba assaulted Sahadeo with axe. Accused Kisan and accused Chandrabhan assaulted Sahadeo with stick and ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 14 ubhari, is the deposition. In the cross-examination it is extracted from P.W.5 Laxmi that P.W.1 Anil fell unconscious near the house of Tukaram Tiple and regained consciousness in the Nagpur hospital. The attempt was to demonstrate that P.W.1 Anil did not witness the assault on P.W.5 or deceased Sahadeo. 16] The other family member Narayan Sahadeo Raut who is the son of the deceased Sahadeo (P.W.12) was not in the village on the date of the incident and states that Sahadeo disclosed that four persons assaulted him with axe and ubhari. P.W.12 further states that the names of the accused were disclosed by Sahadeo.
P.W. 1 Anil, whose statement was recorded as dying declaration, and which is treated First Information Report, speaks of two distinct assaults. The first assault is by accused Janardhan who pelted stone on the left ear of the injured Anil. The second assault took place when, as advised by the Police Patil, at 6.00 p.m. or thereabout, the injured, Anil, his mother Laxmi, deceased Sahdeo and others boarded the auto-rickshaw to lodge the report at the Karanja Police Station. However, the evidence of P.W. 1 Anil as regards the second assault is extremely doubtful. The mother of Anil Laxmi (P.W. 5) who is also injured does not speak of the presence of Anil when she and deceased Sahdeo were ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 15 assaulted. In fact, P.W. 5 Laxmi deposes thus in the cross- examination:-
"It is true that Anil felt unconscious near the house of Tukaram Tiple itself. It is true that Anil regained his conscious in the hospital at Nagpur."
P.W. 1 Anil admits that at the time of incident he was under the influence of liquor. This is treated to be a erroneous admission by the learned Sessions Judge. It is difficult to agree with the observation of the learned Session Judge. Several suggestions were given to P.W. 1 Anil to the effect that he was under the influence of liquor and the suggestions were given in different context. The fact that the doctor who examined P.W .1 Anil did not mention in the certificate that P.W.1 was under the influence of liquor, is not sufficient to hold that the admission is erroneous. The version of P.W. 1 Anil that all the injured boarded an auto- rickshaw and the accused assaulted them at that time, is a proved omission. The evidence of Anil that he was conscious and was a witness to the assault appears to be extremely suspect since according to his mother P.W. 5 Laxmi he fell unconscious near the house of Tukaram Tiple, which would suggest that Anil fell unconscious due to the first assault by stone. I have already noted, that Laxmi does not speak of the presence of P.W. 1 Anil when she and Sahdeo were assaulted, which assault concededly is ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 16 subsequent to the stone pelting by accused 1 - Janardhan which injured P.W. 1 Anil.
17] Kusum Nehare (P.W. 3) narrates a version which is substantially at variance with that of her mother (P.W. 5). She speaks of the first assault on Anil and the injury suffered due to stone pelting but then she does not speak of Anil losing consciousness. P.W. 3 Kusum then deposes that Sahdeo was sitting on the cart, accused - 1 Janardhan pelted stone at Sahdeo, P.W. 5 Laxmi came out of the house and was assaulted by accused Janardhan who picked up a stick from fencing and inflicted a blow on the head of P.W. 5 Laxmi. P.W. 3 then states that P.W. 1 Anil attempted to intervene and was assaulted by the accused. This version of P.W. 3 Kusum is neither the version of P.W. 1 Anil nor the version of P.W. 5 Laxmi. P.W. 3 Kusum then states that P.W. 1 and Sahdeo boarded an auto-rickshaw, P.W. 1 was pulled out of auto-rickshaw and assaulted. Deceased Sahdeo was also assaulted accused Kisan and accused Chandrabhan with the rod of the axe on leg. P.W. 3 then states that the accused assaulted P.W. 1 Anil and P.W. 5 Laxmi with sticks and ubhari. She has also deposed that accused Baba inflicted an axe blow on the head of Sahdeo.
Evidence of P.W. 3 Kusum must be tested with some caution ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 17 since the defence has brought on record several omissions which are duly proved. It is true that certain omissions are not significant in as much as the facts spoken of are amply corroborated by the evidence of P.W. 1 Anil and P.W. 5 Laxmibai. Illustratively, the statement that accused 1 Janardhan pelted stone at P.W. 1 Anil is an omission, which is not fatal since the other witnesses have corroborated the version that accused 1 assaulted Anil with stone. However, the statement that accused 1 - Janardhan picked up stick of the fencing and assaulted P.W. 5 on the head is an omission which is near fatal since this is not the version of P.W. 5 Laxmi. The statement that P.W. 1 Anil intervened and was assaulted is again an omission which is significant. The version of P.W. 3 Kusum as to the assault launched when the injured Anil, Laxmi and Sahdeo were in the auto-rickshaw, is an omission.
18] P.W. 5 Laxmi has attributed accused 1 the major role in the incident. She states that accused Janardhan and accused Baba assaulted Anil near the octroi post. However, according to the Anil it was accused Janardhan who pelted a stone. P.W. 1 then states that accused Janardhan pelted stone on Sahdeo, assaulted, her with ubhari and assaulted Sahdeo with axe rod. ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 18 P.W. 1 states that accused Baba assaulted Sahdeo with axe and accused Kisan and Chandrabhan assaulted Sahdeo with stick. 19] I have already observed that P.W. 1 Anil is not likely to have witnessed the incident which occurred subsequent to the injuries suffered due to stone pelted by accused Janardhan. The evidence of P.W. 3 and P.W. 5 on how the assault took place and the role played by the individual accused is inconsistent. It is obvious that there is some attempt to exaggerate and over implicate. But then, the Court must separate the chaff from the grain. The learned Sessions Judge has held the discovery of the weapons proved relying on the evidence of Police Sub Inspector - Ramesh (P.W. 13), although the evidence of the only panch examined Hansaraj (P.W. 10) is not accepted since Hansraj is held to be a stock witness. Concededly, the other panch to the discovery and seizure is not examined. I am not persuaded to rely on the evidence on discovery in the facts of the case. The failure of the prosecution to examine the other panch is inexplicable. That apart, the report of Chemical Analyzer Exh. 81 reveals that no blood was detected either on the axe or wooden stick. 20] Exh. 88 on the record of the trial Court is a statement ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 19 of the deceased Sahdeo which was recorded under section 161 of the Code of Criminal Procedure and exhibited as a dying declaration in view of the death of Sahadeo. In so far as assault on Sahdeo and Laxmi is concerned, it is only accused Janardhan and accused Baba who are named by Sahdeo in Exh. 88. Having discarded the evidence on discovery, and having closely scrutinized the evidence of the injured P.W. 1, P.W. 5 and P.W. 3 who claims to be an eyewitness, the prosecution has not proved beyond reasonable doubt that accused Chandrabhan and accused Kisan (appellant 3 and appellant 4) were participants in the assault.
21] In so far as accused 1 Janardhan and accused 2 Baba are concerned, the prosecution evidence, separating the chaff from the grain, is cogent enough to establish their role in the assault although it is again difficult to ascertain as to which of the two delivered which blow. However, it is not established that the injuries suffered by P.W.1, P.W. 5 or deceased Sahadeo were grievous injuries. In so far as deceased Sahdeo is concerned, it is admitted by the doctor that the injuries were simple injuries and Sahdeo may have died due to causes not directly attributed to the assault. The medical evidence would show that the injuries ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 20 suffered by P.W. 1 Anil and P.W. 5 Laxmi are not grievous and the only offence which is proved against accused Janardhan and accused Baba is under section 324 of IPC.
22] In the light of the discussion supra, I would partly allow the appeal by holding that appellant - accused 3 Chandrabhan and appellant - accused 4 Kisan are entitled to acquittal and appellant - accused 1 and appellant - accused 2 - Janardhan and Baba, respectively, are liable to be convicted under section 324 of IPC instead under section 304 part II, 326 read with section 34 of IPC.
23] The appeal is partly allowed. 24] The judgment and order impugned is set aside as regards
appellant - 3 and appellant 4 - Chandrabhan and Kisan respectively, who are acquitted of offence punishable under section 304 part II, 326, 324 read with section 34 of IPC. 25] Appellant 1 Janardhan and appellant 2 Baba are acquitted of offence punishable under section 304 part II and 326 read with section 34 of IPC, and are instead convicted for offence punishable under section 324 read with section 34 of IPC.
26] The accused have already undergone more than six months in detention as pretrial and post conviction prisoners. The ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 02:16:18 ::: apeal310.02.J.odt 21 incident occurred 22 years ago. I deem it appropriate to sentence the accused 1 and 2 Janardhan and Baba respectively, to imprisonment already undergone.
27] The appeal is disposed of in above term.
JUDGE
NSN/RS Belkhede
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