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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 944 OF 2015
1. Sambhaji s/o Sakharam Gagalwad
Age : 36 Yrs., Occ. : Agriculture,
R/o : Mahati, Tq. Mudkhed, Dist.
Nanded.
2. Ganesh s/o Sakharam Gagalwad
Age : 27 Yrs., Occ. : Agriculture,
R/o : Mahati, Tq. Mudkhed, Dist.... APPELLANTS/
Nanded. [ORI.ACCUSED NOS. 1 & 2]
VERSUS
The State of Maharashtra
Through Police Station
Mudkhed, Tq. Mudkhed,
Dist. Nanded. ..... RESPONDENT
.............................
Mr. G.R.Ingole, Advocate for Appellants.
Mr. S.Y.Mahajan, A.P.P. for Resp. - State.
..............................
CORAM : V.L.ACHLIYA, J.
DATE OF JUDGMENT : 22/06/2017 .............................
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ORAL JUDGMENT :
1. Being aggrieved by the Judgment and order dated 23/11/2015 passed by the learned Additional Sessions Judge - 4, Nanded in Sessions Case No. 10/2014 convicting the appellants/accused Nos. 1 and 2 for the offence punishable u/s 307 read with section 34 of the Indian Penal Code and section 4/25 of the Indian Arms Act, the appellants have preferred this Appeal. For committing offence u/s 307 read with section 34 of the Indian Penal Code, the appellants are sentenced to undergo rigorous imprisonment for five years and fine of Rs. 1,000/- each. Whereas for committing offence u/s 4/25 of Arms Act, the appellants are sentenced to undergo rigorous imprisonment for one year and fine of Rs. 1,000/- each.
2. In brief the facts leading to prosecution of the appellants/accused Nos. 1 and 2 can be summarized as under :
[a] Prosecution has approached with the case that on 24/09/2013 at about 7.00 p.m., the Complainant Bhujanga s/o Pundlik Gagalwad [P.W.2], [hereinafter ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 3 Cr.Appeal 944.2015 - [J] referred to as "complainant "] his brother Bali Gagalwad, neighbours Shivaji [P.W.5], Bali Jadhav and Mohan Jadhav [P.W.6] were sitting in front of house of the complainant. The appellants/accused Nos. 1 and 2 came on the spot. The accused No. 1 was carrying sword in his hand. The accused No. 2 was carrying iron pipe in his hand. Both of them asked the complainant as to why they deposed against them in the Court at Mudkhed and further asked as to why he has not withdrawn the case. Thereafter, the accused No. 1 assaulted the complainant by means of sword. The accused No. 2 assaulted him by means of iron pipe. They caused serious injuries to the complainant. The accused No. 1 assaulted complainant over his head by sword. The accused No. 2 assaulted complainant over hands, leg and chest. When the brother of complainant viz. Bali Gagalwad, neighbour Shivaji [P.W.5] and villagers Bali Jadhav and Mohan Jadhav [P.W.6] tried to intervene and save the complainant, the accused No. 1 assaulted Bali Gagalwad by means of sword on his right side wrist and caused injury. The accused No. 2 assaulted Bali Gagalwad with iron pipe over right side wrist, head, pelvis, legs and caused serious injuries. They also assaulted Shivaji Gagalwad [P.W.5]. The complainant was brought to Govt. hospital at Nanded by his son, wife and other ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 4 Cr.Appeal 944.2015 - [J] relatives. He was admitted in hospital. While lying admitted in hospital, the statement of Bhujanga [P.W.2], the complainant came to be recorded. Same was treated as F.I.R. On the basis of said complaint, offence u/s 307 read with section 34 of the Indian Penal Code and u/s 4/25 of the Indian Arms Act came to be registered with Mudkhed police station vide Crime No. 86/2017. P.S.I. Mr. Shaikh [P.W.11] conducted investigation. He visited the spot and made panchanama. He arrested the accused and obtained their remand. During the custody, the accused No. 1 Sambhaji shown his willingness to show the place where he has concealed the weapon used in commission of the offence and also shown his willingness to produce the same. After recording his memorandum statement in presence of two panch witnesses, seized the sword at the instance of accused No. 1 Sambhaji which kept concealed by him at his house. Similarly, at the instance of accused No. 2 Ganesh, seized one iron pipe used in the commission of the offence. During the course of further investigation, the clothes of the complainant and injured Bali Gagalwad, the brother of the complainant, came to be seized. Statements of witnesses came to be recorded. On completion of investigation, charge sheet was prepared and filed in the Court of the Judicial ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 5 Cr.Appeal 944.2015 - [J] Magistrate First Class, Mudkhed. In due course, the case was committed to the Court of Sessions at Nanded. On committal of case, Charge u/s 307 read with section 34 of the Indian Penal Code and u/s 4/25 of the Indian Arms Act came to be framed against the accused on 07/03/2014. Both of them pleaded not guilty and claimed to be tried. [b] In order to prove its case, prosecution has examined eleven witnesses and further proved certain documents. The appellants/accused have not examined any witness in defence. Their defence appears to be of total denial and false implication at the instance of the complainant on account of old enmity. On conclusion of trial, learned Additional Sessions Judge found them guilty of said offences and convicted them as stated above. Being aggrieved, the accused have preferred this Appeal.
3. I have heard the submissions advanced at length by the learned counsel for the accused as well as A.P.P. for the State and further perused the record and proceedings.
4. Mr. G.R.Ingole, learned counsel for the
appellants/accused strenuously contended that the
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Judgment and order passed by the trial Court is perverse and not sustainable in law. He submits that there is no cogent, convincing and reliable evidence to sustain the conviction. It is pointed out that there is absolutely no evidence to show that notification was in force prohibiting people to carry or possess the alleged weapon and the appellants/accused have acted in contravention of that notification; so as to prosecute for committing offence punishable u/s 4/25 of Arms Act. In this context, learned counsel has invited attention to the impugned Judgment and order and contended that no reasons nor finding recorded by the trial Court to award conviction for the offence punishable u/s 4/25 of the Indian Arms Act. By referring the testimony of the witnesses examined by prosecution. Learned counsel submits that no independent witness has been examined by prosecution to corroborate the testimony of the complainant and the conviction is wholly based on the testimony of interested witnesses. Although the prosecution has claimed that the sword was recovered at the instance of appellant/accused No. 1 but the testimony of Ananda Mahajan Gagalwad [P.W.3], the panch witness to the memorandum panchanama reveals that the sword was recovered at the instance of appellant/accused No. 2. He submits that there is no ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 7 Cr.Appeal 944.2015 - [J] cogent, convincing and reliable evidence to sustain conviction. It is contended that even if we take into consideration the prosecution case in its entirety to be true, still no offence u/s 307 read with section 34 of the Indian Penal Code made out against the appellants/accused and in the facts and circumstances of the case and the evidence on record, at the most, the offence u/s 324 of the Indian Penal Code can be made out against the appellants/accused. He urged to allow the Appeal and set aside the conviction and in alternative let out the appellants/accused as to the sentence undergone.
5. On the other hand, learned A.P.P. submits that there is cogent, convincing and reliable evidence to sustain the conviction. He submits that Bhujanga [P.W.2], the complainant, has fully supported the case of the prosecution. Similarly, injured witness Shivaji [P.W.5] has also supported the case of the prosecution. The testimony of Bhujanga [P.W.2], the complainant, finds corroboration from testimony of independent witness Mohan Jadhav [P.W.6], whose presence is not disputed. It is further pointed out that recovery of sword and iron pipe was made at the instance of appellants/accused Nos. 1 and 2. Medical evidence duly corroborates the testimony of ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 8 Cr.Appeal 944.2015 - [J] injured witnesses. He submits that there is no challenge to the material facts deposed by the injured witnesses. It is contended that the prosecution has proved the guilt of the accused beyond reasonable doubt and the reasons and findings recorded by the trial Court are based upon due appreciation of evidence and calls for no interference in exercise of appellate jurisdiction. He further submits that looking to the nature of offence, the manner in which the assault was made, the nature of weapons used in the commission of the offence and the nature of injuries caused to the complainant and selection of vital parts of the body to dealt the blow of sword, fully establishes that the appellants/accused had came to the spot with an intention to kill the complainant. He submits that the evidence on record is more than sufficient to gather the intention of the accused that they assaulted the complainant with intention to kill him. So also they had sufficient knowledge that by doing such act, the death is likely to be caused. By referring the testimony of the Medical Officer, Dr. Avinash Digamber Puri [P.W.10], it is pointed out that if the injured could not have received treatment in time, the injury sustained by the complainant may have resulted into his death. It is pointed out that, as deposed by the complainant, two contused lacerated ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 9 Cr.Appeal 944.2015 - [J] wounds were found to have been sustained by him. The complainant has received contused lacerated wound 7 cm. x 1 cm. with skull exposed on left and right parietal region, which demonstrates the force used in inflicting the injuries and sufficient to gather the intention of accused. In the light of evidence on record, learned A.P.P. submits that no case is made out to interfere with the Judgment and order passed by the trial Court and urged to dismiss the Appeal.
6. In order to appreciate the submissions advanced, I have carefully perused the impugned Judgment and order passed by trial Court and record and proceedings of trial Court.
7. As discussed the prosecution has approached with the case that on account of giving evidence in a case against the appellants/accused pending in the Court at Mudkhed, the accused were carrying grudge against the complainant and other injured witnesses. Out of the vengeance and to teach lesson for giving evidence against them, the appellants/accused armed with weapons like sword and iron pipe went to the place where the complainant was sitting with his brother Bali and ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 10 Cr.Appeal 944.2015 - [J] neighbour Shivaji as to why complainant deposed against them and not withdrawing the case filed against them. The appellants/accused assaulted the complainant as well as his brother Bali and neighbour Shivaji by means of sword and iron pipe. The injured were admitted in hospital at Nanded. On the basis of the complaint lodged by Bhujanga [P.W.2], the complainant, offence u/s 307 read with section 34 of the Indian Penal Code and u/s 4/25 of the Indian Arms Act came to be registered against the appellants/accused. The weapons used in the commission of offence were recovered at the instance of the appellants/accused.
8. If we consider the Judgment and order passed by the trial Court, then it appears that the conviction is mainly based upon the testimony of Bhujanga Pundlik Gagalwad [P.W.2], the complainant and the injured witnesses viz. Shivaji Ramji Gaglwad [P.W.5]; Mohan Sambhaji Jadhav [P.W.6], the independent eye witness to the incident; Dr. Avinash Digamber Puri [P.W.10], Medical Officer who examined the complainant, Dr. Kavita Suraj Rathod [P.W.1], who examined injured witness Shivaji [P.W.5] and the recovery of weapons used in the commission of the offence at the instance of ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 11 Cr.Appeal 944.2015 - [J] appellants/accused Nos. 1 and 2.
9. If we consider the over-all evidence as adduced by the prosecution, then the conviction of the appellants/accused Nos. 1 and 2 u/s 4/25 of the Indian Arms Act is not sustainable in law. In order to sustain the charge for the offence punishable u/s 4/25 of the Indian Arms Act; it is incumbent upon prosecution to prove that the arms found with accused falls in category of prohibited arms as defined u/s 2 [f] of the Indian Arms Act, 1959 and on the date of commission of offence, there was a notification u/s 4 of the Indian Arms Act prohibiting the people from acquiring, possessing or carrying such arms in the prohibited area. Only in the eventuality, a person is found in possession of prohibited arms in contravention of the provisions of section 4 of the Indian Arms Act, the offence u/s 4/25 of the Indian Arms Act attract against such person. In order to prove the offence u/s 4/25 of Arms Act, it is necessary that the prosecution must prove the issuance of such Notification and its application within the area where the accused found to be in possession of such prohibited arms. In the instant case, the prosecution has not produced any evidence in the form of Notification to sustain the charge u/s 4/25 of the Indian Arms Act. It ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 12 Cr.Appeal 944.2015 - [J] is pertinent to note that the Investigating Officer i.e. P.S.I. Shaikh [P.W. 11] though examined by the prosecution but he has not uttered a single word about the issuance of such Notification prohibiting the possession and carrying such arms in the area where the accused alleged to have found in possession of said arms. In this view, the conviction of the appellants/accused for the offence punishable u/s 4/25 of the Indian Arms Act deserves to be set aside. I am, therefore, inclined to set aside the conviction of the appellants/accused for the offence punishable u/s 4/25 of the Indian Arms Act and acquit them for the said offence.
10. Next question which poses for consideration is, whether the prosecution has proved its case beyond reasonable doubt to establish that acting in furtherance of their common intention the accused assaulted Bhujana [P.W.2], the complainant, by means of sword and iron pipe and in the same course of action, assaulted other persons which include Bali Gagalwad, brother of the complainant and Shivaji [P.W.5] with such intention or knowledge to kill them and thereby committed offence punishable u/s 307 read with section 34 of the Indian Penal Code or any offence lesser than the said ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 13 Cr.Appeal 944.2015 - [J] offence.
11. In order to prove charge u/s 307 read with section 34 of the Indian Penal Code, prosecution has examined Bhujana [P.W.2], the complainant, whose testimony is at Exh. 19. He deposed that on the day of incident at about 7.00 to 7.30 p.m., while he was sitting in front of his house and reading pamphlet of local yatra, the appellants/accused came there and asked him to withdraw the case filed by his daughter-in-law against them and started beating him. He categorically deposed that appellant/accused No. 1 Sambhaji assaulted him by means of sword over his head. Appellant/accused No. 2 Ganesh assaulted him by means of iron pipe on both of his hands and thigh. He further deposed that his family members got him admitted in civil hospital at Nanded. On next day after regaining consciousness, his statement was recorded by police vide Exh. 20.
12. If we consider the cross examination of Bhujanga [P.W.2], then there is absolutely no challenge to the material facts deposed by him. He denied the suggestion put-forth in cross examination that due to darkness he fell on the road and sustained injury. He has ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 14 Cr.Appeal 944.2015 - [J] denied the suggestion that on account of dispute with the appellants/accused, he lodged false complaint against accused. Thus, the testimony of Bhujana [P.W.2], the complainant, remains intact. Nothing has been elicited in his cross examination to discredit his testimony.
13. If we consider the testimony of Bhujana [P.W.2], the complainant, in the light of the testimony of Dr. Avinash Digamber Puri [P.W.10], the Medical Officer who examined Bhujana [P.W.2], on 24/09/2013 in Civil Hospital at Nanded and issued medical certificate vide Exh. 40, then the testimony of Bhujana, finds due corroboration through the medical evidence. Dr. Avinash Digamber Puri [P.W.10] has deposed that on 24/09/2013 he examined Bhujanga. On examination, he found following injuries on his person and issued Medical certificate vide Exh. 40.
[i] CLW 7 cm. X 1 cm. X skull expose on left and right parietal region.
[ii] CLW 1 x ½ cm. on left arm.
[iii] Contusion on right arm and forearm.
[iv] Contusion and swelling on hip region left side.
[v] Contusion on left forearm.
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14. P.W.10 has categorically deposed that the above noted injuries were caused by hard and blunt object and grievous in nature. He has further deposed that above injuries were fresh. He has specifically deposed that if the injured would not have been treated in time, the injuries may have resulted fatal. He deposed that the injuries were possible by weapon like sword [Article No. 6] and iron pipe [Article No. 7]. If we consider the cross examination of P.W.10, then the material fact deposed by the witness remains unchalleged.
15. Thus, if we consider the testimony of Bhujanga [P.W.2], the complainant in the light of the injury certificate produced at Exh. 40, then his testimony finds due corroboration from Medical certificate Exh. 40. Medical certificate [Exh. 40] reflects that the injured was brought to hospital on 24/09/2013 at 9.25 p.m. by his son, who was referred to the hospital from police station Mudkhed. It is pertinent to note that the incident was occurred at about 7.00 to 7.30 p.m. in village Mahati, Taluka Mudkhed, district Nanded. The injured was hospitalized at civil hospital, Nanded where he was examined at 9.25 p.m. i.e. within two hours of incident. ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 :::
16 Cr.Appeal 944.2015 - [J] The injury certificate reflects that the injuries as deposed by P.W.2 were found on his body during the medical examination. As per the noting made in the certificate, it is noted that after taking X-ray and orthopedic opinion, fracture of left distal 1/3 humorous Grade 'I' with fracture of 1/3 right radius with undisplaced fracture of right distal and ulna with fracture of proximal [left] ulna with disc fracture of II femur detected. It also reflects that the injured was taken for C.T.Scan on 25/09/2011 as it was suspected fracture of right frontal bone with pneumes encephatus.
16. The testimony of the complainant i.e. P.W.2 finds further corroboration through the testimony of Mohan Jadhav [P.W.6], the independent witness examined by the prosecution. He deposed on the lines the facts deposed by the complainant [P.W.2]. He has categorically deposed that on the day, date and time of the incident, he along with Bali Gagalwad, Bhujanga [P.W.2], the complainant, Shivaji [P.W.5] and one other person were sitting on the road. Shivaji was reading the pamphlet of local yatra. At that time, appellant/accused No. 1 Sambjaji came with sword in his hand and asked Bhujanga [P.W.2] as to why he was not withdrawing the case. He ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 17 Cr.Appeal 944.2015 - [J] assaulted Bhujanga by means of sword. He further deposed that the appellant/accused No. 2 Ganesh was with appellant/accused No. 1 Sambhaji. He assaulted Bhujanga [P.W.2] by means of iron pipe. He further deposed that the appellants/accused also assaulted Shivaji [P.W.5]. If we consider the cross examination of Mohan Sambhaji Jadhav [P.W.6], then except giving suggestions that the accused were not carrying arms and assaulted Bhujanga [P.W.2], nothing has been elicited in his cross examination so as to seek favour to the defence of accused or to discard or disbelieve the testimony of this witness. It is pertinent to note that in the complaint lodged by the complainant, the complainant has specifically stated the presence of this witness at the time of incident. Another injured witness Shivaji [P.W.5] also deposed as to the presence of Mohan Sambhaji Jadhav [P.W.6] on the spot. There is no challenge to the fact deposed by P.W. 5 to that effect. Even no suggestion was given to him that he was not present at the time of incident. Thus, the testimony of Bhujanga [P.W.2] also finds due corroboration through the testimony of Mohan Jadhav [P.W.6].
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18 Cr.Appeal 944.2015 - [J] 5], another injured witness examined by the prosecution, then he has also supported the case of prosecution. Although the witness was declared hostile but in the cross examination by learned A.P.P., the said witness has entirely admitted the case of prosecution. He has admitted that in the case pending against the accused in Mudkhed Court, Bhujanga [P.W.2] was one of witness. He has further admitted that beside him Bhujanga [P.W.2] as well as Bali were brought to Govt. hospital for treatment and the report in respect of the incident was lodged by Bhujanga [P.W.2] against the accused to the effect that he was assaulted by accused by means of sword and iron pipe. He has also admitted that Bali Gagalwad and Mohan Jadhav [P.W.6] intervened in the quarrel. He has admitted that Bhujanga [P.W.2] was not in a position to walk after assaulted with sword by accused No. 1 Sambhaji. He has also admitted that Bhujanga [P.W.2] was admitted in hospital for many days. He admitted that the accused are his cousin. If we consider the cross examination of P.W.5, then the defence has declined to cross examine him. Thus, the facts deposed by P.W.5 in his Examination-in-Chief as well as cross examination, remained intact.
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18. In order to seek further corroboration to its case and particularly the testimony of Shivaji, prosecution has examined Dr. Kavita Suraj Rathod [P.W. 1], Medical Officer attached to the Rural hospital, Mudkhed. She deposed that on 25/09/2013, she examined Shivaji and found abrasion over left side of fore arm of 10 x 2 cm. in size. The injury was found to be caused within 24 hours, simple in nature and caused by hard object. She further proved the contents of injury certificate [Exh.18]. In the cross examination, the witness has admitted that the injury found on the person of P.W. 5 was possible by nails as well as pressing of hand to the wall. However, in cross examination of P.W. 5 no such suggestion was given that injury on his person caused for the reason other than assault. Thus, the testimony of Shivaji [P.W.5] also found due corroboration from medical evidence.
19. Beside the oral testimony of above witnesses supporting the testimony of Bhujanga [P.W.2], the complainant and the injured witnesses, there is evidence in the form of recovery of weapon used in the commission of offence. Prosecution has examined Ananda [P.W.3], panch witness to the memorandum panchanma [Exh. 24] as well as recovery made pursuant to the memorandum ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 20 Cr.Appeal 944.2015 - [J] statement of the appellant/accused No. 2 Ganesh vide panchanama Exh. 25. Ananda Mahajan Gagalwad [P.W.3] has deposed that on 01/10/2013 in his presence accused No. 2 Ganesh shown his willingness to produce the weapon used in commission of the offence. Pursuant to the statement, the memorandum was recorded vide Exh. 24 and later-on he produced sword from his house which was seized vide panchanama [Exh.25]. In cross examination, he denied the suggestion that accused Ganesh is his close relative.
20. There is inconsistency between the oral testimony of the witness and the recovery panchanama [Exh.25]. P.W.3 though deposed that the sword was recovered at the instance of accused No. 2 from his house, the panchanama reflects that iron pipe/rod was recovered at the instance of said accused. In this context, learned counsel for the appellants/accused strenuously contended that the prosecution has failed to prove recovery of weapon used in commission of offence at the instance of accused No. 2. He has contended that it is nowhere the case of the prosecution that appellant/accused No. 2 used sword in commission of offence. On the other hand, learned A.P.P. contended that the witness has fully ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 21 Cr.Appeal 944.2015 - [J] supported the prosecution case except the discrepancy as to the weapon recovered. He has pointed out that the witness has deposed that the panchanama [Exh.25] bears his signature and its contents are true and correct. In this back-ground, the learned A.P.P. argued that the possibility of mistake being committed at the time of deposing before the Court as well as wrong recording of evidence can not be ruled out. In my view, no much weightage can be given to said discrepancy for the reason that the witness has categorically deposed that the recovery panchanama was prepared and his signature was obtained. He has identified panchanama [Exh.25] as the same panchanama and further deposed the contents therein are recorded truly and correctly. Seizure panchanama [Exh.25] refers to recovery of iron pipe at the instance of appellant/accused No. 2. I am, therefore, of the view that the prosecution has proved the recovery of weapon used in the commission of offence at the instance of appellant/accused No. 2.
21. So far as recovery of weapon at the instance of appellant/accused No. 1 is concerned, prosecution has examined Deepak Jadhav [P.W.4]. He has not supported the prosecution case. However, prosecution has examined ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 22 Cr.Appeal 944.2015 - [J] another panch witness i.e. Rahul Prabhakar Ambadwad [P.W.7] to prove recovery of sword at the instance of appellant/accused No. 1. He has supported the case of prosecution. He has deposed that on 27/09/2013 he was called at police station. In his presence, appellant/accused No. 1 Sambhaji made statement and shown willingness to produce the weapon used in the commission of offence. Police recorded his statement and made panchanama vide Exh. 31. Later-on, the appellant/accused No. 1 took the police and panchas to his house and produced one sword from the room; which was seized by police vide seizure panchanama [Exh. 32]. In his cross examination, it is brought on record that the complainant Bhujanga [P.W.2] as well as accused are his relatives. If we consider cross examination of P.W. 7, then nothing is brought on record to discard or disbelieve his testimony. Only for the reason that the said witness being related to the complainant, can not be a ground to discard his testimony. Beside P.W. 7, Investigating Officer P.S.I. Mr. Shaikh [P.W.11] has categorically deposed as to arrest of accused and voluntary disclosure made by them to produce weapon used in commission of offence as well as the recovery made at their instance. The facts deposed by the Investigating Officer as to the recovery are not challenged ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 23 Cr.Appeal 944.2015 - [J] in the cross examination.
22. Beside the recovery of weapon, prosecution has also proved seizure of cloths i.e. Dhoti, Baniyan and handkerchief of Bhujanga [P.W.2], the complainant made vide panchanama [Exh. 34] by examining panch witness Ramesh Gagalwad [P.W.8]. Report of Chemical Analyser produced at Exh. 11 establishes that on the blade of the sword recovered at the instance of appellant/accused No. 1, human blood was detected. So also, on the clothes of injured the blood stains of human blood as that of group 'B' was detected. As per the Chemical Analyzer's report [Exh.53], blood group of Bhujanga [P.W.2], the complainant was found to be of group 'B'. As per the Chemical Analyzer's report [Exh.54], blood group of appellant/accused No. 1 Sambhaji also was found to be of group 'B'.
23. Thus, on close analysis of the evidence as adduced by the prosecution, I have no hesitation to hold that the prosecution has proved its case beyond reasonable doubt to the extent that the incident was occurred in the manner deposed by Bhujanga [P.W.2], the complainant and in that incident, the complainant as well ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 24 Cr.Appeal 944.2015 - [J] as Shivaji were assaulted by the appellants/accused. It is further established that the complainant Bhujanga [P.W.2] was assaulted by appellant/accused No. 1 Sambhaji by means of sword over his head and appellant/accused No. 2 assaulted him by means of iron pipe causing grievous injuries. Thus, the prosecution has established the assault as well as the complicity of appellants/accused Nos. 1 and 2 in commission of offence.
24. Next question poses for my consideration, is whether the assault made by the appellants/accused Nos. 1 and 2 on Bhujanga [P.W.2] can be termed as an act of attempt to commit murder punishable u/s 307 of the Indian Penal Code and accused Nos. 1 and 2 acted in furtherance of their common intention in assaulting the complainant.
25. The requisite ingredients of the offence u/s 307 of the Indian Penal Code are as under :
[i] that the death of a human being attempted;
[ii] that such death was attempted to be caused
by, or in consequence of the act of the
accused; and
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[iii] that such act was done with the intention of
causing death; or that it was done with the intention of causing such bodily injury as : [a] the accused knew to be likely to cause death; or [b] was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probabilities cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
26. Thus, if we consider the ingredients of offence u/s 307 of the Indian Penal Code, then one of the necessary ingredients of offence u/s 307 of the Indian Penal Code to be established is that the accused had acted with intention to cause death or such bodily injury, which the accused knew or likely to knew likely to cause death in ordinary course of nature. Therefore, the nature of injury itself is not significant to draw the conclusion as whether the accused acted with intention to cause death. What is important is the intention of accused in inflicting the ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 26 Cr.Appeal 944.2015 - [J] injury. The intention of such person being locked in his mind, it is difficult to get any direct evidence to ascertain the intention of accused. Such intention is to be inferred on the basis of over-all facts of the case and evidence adduced in the case. In general the intention to cause death can be gathered on the basis of following circumstances :
[i] Nature of the weapon used ;
[ii] Whether the weapon was carried by accused
or picked up from the spot ;
[iii] whether the blow is made on the vital part of
the body ;
[iv] force applied in causing injury ;
[v] whether the act was sudden ;
[vi] whether the incident occurred by-chance or
whether there was any pre-mediation ;
[vii] whether there was any prior enmity or the
injured was stranger ;
[viii] whether there was sudden provocation ;
[ix] whether it was in the heat of passion ;
[x] whether the person inflicting injury has taken
undue advantage or acted in a cruel or unusual manner ;
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[xi] whether the accused dealt single blow or
several blows.
27. The circumstances mentioned above are some of the circumstances and the list is not exhaustive. There may be several other special circumstances depends upon the facts and circumstances needs to be taken into consideration while drawing inference as to intention of assault.
28. Keeping in mind the circumstances which are generally taken into consideration to ascertain the intention of accused, I have analyzed the evidence as adduced by the prosecution. If we consider over-all circumstances brought on record, then in my view the intention of the accused appears to be restricted to assault the complainant. No-doubt, the accused came on the spot with weapons in their hands and one of the blow dealt by appellant/accused No. 1 landed on the head of the complainant and caused grievous injury over head. But, this circumstance alone can not be treated as sufficient to infer the intention on the part of the accused that they intended to kill Bhujanga. If really the accused intended to cause the death of Bhujanga, they would not ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 28 Cr.Appeal 944.2015 - [J] have committed such act in presence of so many persons. No sensible person would make such assault in presence of number of persons and that too in the vicinity surrounded with number of houses. If we consider the over-all facts of the prosecution case, then the prosecution has approached with the case that the complainant Bhujanga was witness in a case instituted by his daughter-in-law against the accused. The accused wanted that the case be withdrawn. The accused and complainant are closely related with each other as cousin. On account of the family dispute between them, the incident in question was occurred. It has come on record that the accused went to the place where the complainant was sitting along with other persons and asked him as to why he deposed against them. On that account, there appears to be some quarrel taken place in between the complainant and accused. In that quarrel the accused assaulted the complainant by means of sword and iron pipe. If we consider the injury report, then Bhujanga, the complainant had sustained two C.L.W. which can be attributed to be caused due to sword. One was over the head and another was on the hand. It is not the case of the prosecution that the accused gave repeated blows of sword on the head of the complainant. Although the ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 29 Cr.Appeal 944.2015 - [J] complainant has deposed that the accused twice assaulted over his head, but other injury was found to be on left arm. Therefore, it can not be said that appellant/accused No. 1 has acted with cruelty and dealt repeated blows with intention to kill the complainant. Out of five injuries found on the body of the complainant, injury No. 1 alone can be termed as " grievous in nature " resulted into exposing the skull. Prosecution has not brought on record that after C.T. Scan, internal damage was detected to brain. The injury was found on right parietal region, itself can not be treated as circumstance to infer the intention of appellant/accused No. 1 was to kill the complainant. No doubt, Medical Officer has deposed that injuries were sufficient in ordinary course to cause death if not treated immediately. But, the evidence of the Medical Officer can not be accepted for the sole reason that except injury No. 1 all other injuries can not be termed as grievous in nature and in ordinary course sufficient to cause the death of person. Therefore, the casual statement made by the witness can not form the basis to reach to the conclusion that the injuries caused to P.W. 2 were sufficient in ordinary course and would have cause his death if not treated immediately.
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29. Thus, if we consider the over-all evidence, then injury No. 1 alone can be termed as grievous injury. Injury Nos. 2 to 5 can not be termed as grievous injuries. Medical Officer has described injury Nos. 3,4 and 5 as contusion. Injury No. 2 is described as contused lacerated wound 1 x 1½ cm. on left hand. Injury Nos. 1 and 2 are attributed to accused No. 1. Injury Nos. 3,4 and 5 are attributed to accused No. 2. The authorship of causing grievous hurt to the complainant Bhujanga attributed to the assault made by appellant/accused No. 1. Although the injury Nos. 3 to 5 are described as contusion, but in the medical certificate [Exh.40], it is mentioned that on taking X-ray the fracture injuries were detected.
30. Thus, on reaching to the conclusion that the intention of the accused at the relevant time was just to assault and not to cause the murder of the complainant, the next question poses for my consideration is whether the accused can be said to have acted in furtherance of common intention to assault the complainant and other witnesses. In my view, in the light of the facts and circumstances of the case and the evidence on record, it can be safely inferred that both the accused acted in furtherance of common intention to assault the ::: Uploaded on - 01/08/2017 ::: Downloaded on - 28/08/2017 07:36:21 ::: 31 Cr.Appeal 944.2015 - [J] complainant. This can be gathered from the fact that the accused proceeded from their house armed with weapons i.e. sword and iron pipe. They reached on the spot with weapons. There is no evidence as such to show that they were provoked to assault the complainant and other injured. Thus, the circumstance brought on record by prosecution that accused went to spot armed with weapons like sword and knife from their house to the place of incident and then assaulted the complainant itself sufficient to draw inference that they left their house in furtherance of their common intention to assault the complainant and acting in furtherance of said intention assaulted the complainant by means of weapon carried by them. In this view, it is not significant as to which injury was caused by which of the accused. Since the injuries were caused in furtherance of their common intention to assault the complainant, both the accused are jointly and severally liable for assaulting the complainant and causing grievous injuries. Looking to nature of injuries, caused by the accused to P.W. 2, I am of the view that the offence u/s 326 read with section 34 of the Indian Penal Code has been proved to be committed by the appellants/accused.
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31. In view of the discussion made above and the conclusion to which I have reached, I am of the view that the Appeal deserves to be partly allowed. The conviction of the appellants/accused for the offence punishable u/s 307 read with section 34 of the Indian Penal Code needs to be altered and the appellants/accused deserve to be convicted for committing offence punishable u/s 326 read with section 34 of the Indian Penal Code. So also, the conviction of the appellants/accused for the offence punishable u/s 4/25 of the Indian Arms Act deserves to be set aside. I am, therefore, inclined to partly allow the Appeal and pass the following order.
ORDER
[i] Criminal Appeal is partly allowed.
[ii] The conviction of appellants/accused Nos. 1
and 2 for the offence punishable u/s 4/25 of the Indian Arms Act is hereby set aside. The appellants/accused Nos. 1 and 2 are hereby acquitted of the offence punishable u/s 4/25 of the Indian Arms Act. Fine amount, if any, paid be refunded to them.
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[iii] The appellants/accused Nos. 1 and 2 are
acquitted of the offence punishable u/s 307 read with section 34 of the Indian Penal Code and their conviction is set aside. However, they are convicted for the offence punishable u/s 326 read with section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 36 months each and also to pay fine of Rs. 1,000/- each. In default of payment of fine, each of the appellant/accused to undergo rigorous imprisonment for one month.
[iv] The appellant/accused No. 2 is granted four weeks time to surrender before the trial Court to undergo the modified sentence.
[v] The appellant/accused No. 1 be set at liberty after undergoing the sentence as modified, if not required in any other case.
[vi] The appellants/accused Nos. 1 and 2 be given benefit as contemplated u/s 428 of the Code of Criminal Procedure and to the period during which they remained as under-trial prisoners be adjusted towards the sentence to undergo.
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[vii] Criminal Appeal stands disposed of in above
terms.
[V.L.ACHLIYA, J.]
KNP/Cr.Appeal 944.2015 - [J]
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