Bombay High Court
Balgounda Daulata Patil And Ors vs The State Of Maharashtra on 20 November, 2015
Nalawade A.S. 1/39 Cri.Appeal 352 &215
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.352 of 2007
1. Balgonda Daulata Patil,
Age 64 years, Occ.Agriculture.
2. Vidyyasagar @ Chotya Balgonda Patil,
Age 30 years, Occ.Agriculture.
3. Pradyumn @ Gotya Balgonda Patil,
Age 27 years, Occ. Agriculture.
All resident of Vasagade,ig
Tal. Palus, Dist.Sangli.
(All at present District Prison,Sangli.)
...Appellants.
versus
The State of Maharashtra. ...Respondent.
WITH
CRIMINAL APPEAL NO.215 OF 2008
The State of Maharashtra
Through API, Palus Police Station,
Taluka Palus, Dist. Sangli.
versus
Jangounda Daulata Patil,
Age 55 years, Occupation- Service,
R/o. Vaagade, Taluka Palus,
District Sangli.
At present resident of 12th Lane,
Sujata Park, Jysingpur,
District Kolhapur.
.....
Mr.P.R.Arjunwadkar,Advocate for Appellant No.1 in Criminal
Appeal No.352 of 2007.
::: Uploaded on - 21/11/2015 ::: Downloaded on - 21/11/2015 23:59:01 :::
Nalawade A.S. 2/39 Cri.Appeal 352 &215
Mr. Yug Mohit Chaudhary, Advocate for Appellant Nos. 2 and 3 in
Appeal 352/2007.
Mrs.A.S.Pai,APP. for the State in both the appeals.
Mr.R.S.Kavle,Advocate for Respondent in Criminal Appeal No.215
of 2008.
.....
CORAM : SMT V.K. TAHILRAMANI, Acting
C.J.&
A.S. GADKARI, J.
Reserved on : 01st September 2015
Pronounced on: 20th November 2015.
JUDGMENT :( Per A.S.GADKARI, J.)
The appellants, original accused Nos. 1 to 3 have
challenged the Judgment and order dated 9.3.2007 passed in
Sessions Case No.128 of 2005 by the learned Additional Sessions
Judge-II, Sangli thereby convicting the appellants under Section
302 read with Section 34 of the Indian Penal Code and
sentencing them to under go imprisonment for life. The
appellants have also been convicted under Section 324 read with
34 of the Indian Penal Code and have been sentenced to suffer
Rigorous Imprisonment for 3 months. The appellants have also
been convicted under Section 506 read with 34 of the Indian
Penal Code and sentenced to suffer Rigorous Imprisonment for 2
months. The appellants have been further convicted under
Section-201 read with 34 of the Indian Penal Code and sentenced
to suffer Rigorous Imprisonment for 3 months. The Trial Court has
Nalawade A.S. 3/39 Cri.Appeal 352 &215
directed that all the substantive sentences to run concurrently.
By the same Judgment and order dated 9.3.2007, the
Trial Court was pleased to acquit the original accused No.4
Jangonda D. Patil from all the charges framed against him.
The State of Maharashtra has preferred an appeal
No.215 of 2008 against the acquittal of original accused No.4
Jangonda D.Patil from all the charges framed against him. The
State of Maharashtra has therefore, impugned that part of the
said Judgment and order dated 9.3.2007 acquitting the original
accused No.4 Jangounda D. Patil from all the charges.
2) The facts which can be enumerated from the record
and are necessary to decide the present appeal can briefly be
stated as under:-
i) The date of incident is 17.3.2005 and the alleged
incident took place between 7.00 to 7.45 p.m. That, the
Appellant No.1 (accused No.1) Balgounda D. Patil and original
accused No.4 Jangounda D.Patil (acquitted accused) are real
brothers and they have two more brothers namely Appasaheb D.
Patil (P.W.No.5) and Annasaheb D. Patil. Ashwinkumar (deceased)
was the son of Annasaheb. The said four brothers were having
ancestral land and there was a partition amongst the said
brothers inter-se approximately 35 years ago. The land which
came to the share of accused No.4-Jangounda was lying vacant
Nalawade A.S. 4/39 Cri.Appeal 352 &215
and fallow. There was a dispute between all the accused on one
side and Annasaheb Patil on the other side on the point of way
through the land and a suit pertaining to the same was pending
in the Civil Court. Accused No.4 Jangounda D. Patil had given the
land which had come to his share to accused No.1 Balgounda and
his sons i.e. Appellant No.2 and 3 (Original Accused Nos. 2 and 3)
for the purpose of cultivation.
ii) As there was a dispute pertaining to the way/passage
through the said land Ashwinkumar (deceased) and his brother
Ashishkumar (P.W.No.1) had filed a civil suit bearing Regular Civil
Suit No.29 of 2005 against the appellant No.1-Balgounda and
original Accused No.4 Jangounda on 1.3.2005 in the Court of Civil
Judge, J.D., Tasgaon, District Sangli. In the said suit, an order of
injunction was passed by the Trial Court. Prior to 3 to 4 days from
the date of incident, the accused No.4 Jangounda had gone to
Village Vasagade at the house of accused No.1-Balgounda D.
Patil. There was a talk amongst the accused persons and it was
decided that the land of accused No.4 to be cleared by removing
bushes in the said land and if anybody obstructs for the same the
said person be killed.
iii) That, on 17.3.2005 at about 7.00p.m. the work of
removal of bushes with the help of excavator in the field of
accused No.4 Jangounda was going on. Ashwinkumar (deceased)
Nalawade A.S. 5/39 Cri.Appeal 352 &215
and his wife Aarti ( P.W.No.2) had come to the said village for
attending the birthday function of the grand son of complainant
(P.W.No.5) Appasaheb D. Patil. At about 7.45 p.m. the
complainant P.W.No.5- Appasaheb and deceased Ashwinkumar
were standing on the road near their house and were talking
interse. At that time appellants came there and said to the
deceased Ashwinkumar that why he was behaving in high
handed manner and how is he concerned with their land.
Ashwinkumar (deceased) told the appellants as to how they are
concerned with it. The appellants started assaulting the
deceased Ashwinkumar with the sword like weapon saying that
they will teach him lesson. At that time the appellant No.1
Balgounda was instigating the appellant Nos. 2 and 3 to beat
Ashwinkumar and to cut him into pieces. Due to the said assault
Ashwinkumar (deceased) sustained injuries and he fell down. The
complainant P.W.No.5 Appasaheb D. Patil tried to intervene in
the said fight but he was also assaulted by the appellants.
P.W.No.5 Appasaheb D. Patil was hit over his face, cheek and left
arm. The appellant No.1 was carrying sickle in his hand. On
hearing commotion, the family members of the complainant
Appasaheb, Aarti (PW No.2) wife of deceased Ashwinkumar
rushed to the spot and when they were also assaulted.
iv) P.W.No.5-Appasaheb thereafter lodged complaint with
Nalawade A.S. 6/39 Cri.Appeal 352 &215
the Police Station on 18.3.2005 at abut 00.45 a.m. The said
complaint was treated as First Information Report and CR
bearing No.24/2005 under Sections 302, 323, 324, 504 read with
34 of the Indian Penal Code was registered. The Investigating
Officer i.e. Police Sub Inspector Ashok Choudhari (P.W.No.11)
took over the investigation. The dead body of
Ashwinkumar(deceased) was brought to the Civil Hospital,
Sangli. Dr. Smt. Archana Sharad Sawant (P.W.No.6) conducted the
post mortem examination on the dead body. The post mortem
report is at Exh.73. During the course of investigation P.W.No.11
PSI Shri Choudhary recorded the statements of various
witnesses. He also recorded the spot panchanama. The weapons
used by the appellants were discovered at their instance by
effecting the necessary discovery panchanamas from appellant
Nos. 1 and 2. After receipt of the necessary documents and after
completion of investigation the Investigating Officer (P.W.No.11)
filed charge sheet against the appellants in the Court of J.M.F.C.,
Tasgaon, Sangli on 15.6.2015 for the offence punishable under
Section 120B, 201, 302, 323, 324 and 506 read with 34 of the
Indian Penal Code.
v) The learned Judicial Magistrate First Class, Tasgaon
committed the case to the Court of Sessions as contemplated
under Section 209 of the Criminal Procedure Code. After
Nalawade A.S. 7/39 Cri.Appeal 352 &215
committal of the case, the Trial Court on 1.7.2005 framed the
charge below Exh.6 against the appellants and original accused
No.4 Jangounda D. Patil under Sections-201, 302, 323,324,506
read with 34 of the Indian Penal Code and under Section 120-B
read with 34 of the Indian Penal Code. The contents of the said
charge were read over and explained to the accused persons in
vernacular language to which they pleaded not guilty and
claimed to be tried. The defence of the appellants was of total
denial. During the course of trial the appellants under Section
294 of the Criminal Procedure Code admitted the documents
such as Inquest Panchanama dated 17.3.2005 (Exh.22),
Panchanama of seizure of clothes of deceased dated 18.3.2005
(Exhibit-23), Advance Death certificate of deceased Ashwinkumar
(Exh.74) and the spot panchanama dated 18.3.2005 (Exh.76).
3) The prosecution in support of its case examined in all
11-witnesses. The learned Trial Court after recording the
evidence and after hearing the parties to the said case was
pleased to convict the appellants as stated herein below. By the
same impugned Judgment and order dated 9.3.2007 the Trial
Court was pleased to acquit the original accused No.4 Jangounda
D.Patil. As stated above the State of Maharashtra has preferred
Appeal No.215 of 2008 against the acquittal of the said original
accused No.4 Jangounda D. Patil.
Nalawade A.S. 8/39 Cri.Appeal 352 &215
4) Heard Dr. Yug Mohit Chaudhary, learned counsel for
the appellant Nos. 2 and 3, Shri. P .R. Arjunwadkar, learned
counsel appearing for Appellant No.1 and Mrs. A.S.Pai, the
learned A.P.P. for the State and with the assistance of the learned
counsel appearing for the respective parties we have perused the
entire record pertaining to the present case. The learned Counsel
for the Appellants advanced various submissions in detail to
which we will deal in the later part of this judgment.
5) With a view to appreciate the submissions advanced
by Dr. Chaudhary and Mr. P.R.Arjunwadkar, learned counsel for
the appellants and Mrs. A.S.Pai, learned A.P.P. for the State, it is
necessary to advert in brief, the evidence of prosecution
witnesses.
6) P.W.No.1 is Ashishkumar Annasaheb Patil the brother
of victim. Ashishkumar Patil (P.W.No.1) in his testimony has
stated that accused No.1 Balgounda and accused No.4
Jangounda are his paternal uncles. Appellant No.1 original
Accused No. 4, his father and one Appaso were the brothers
inter-se. Appellant Nos. 2 and 3 are his cousin brothers and are
the sons of Appellant No.1 Balgounda. Deceased Ashwinkumar
was his real elder brother. Deceased Ashwinkumar was teacher at
Village Tardal but was residing at Sangli along with his wife. That,
his father and his brothers i.e. his uncles were residing separately
Nalawade A.S. 9/39 Cri.Appeal 352 &215
since the year 1980. His father was a S.T. Driver at Miraj.
Accused No.1 and Appaso were the farmers. Original Accused
No.4 Jangounda was Bank Inspector at Gadhinglaj Co-op. Sugar
Factory. Since the year 1980 there was a partition of the
agricultural land amongst the said four brothers. About 16
Gunthas of land was in common usage between the said four
brothers. Out of that 16 Gunthas of land 4 Gunthas was
purchased by original accused No.4 Jangounda from the
Appellant No.1 Balgounda Patil. When Appasaheb Patil
ig was
constructing a cattle shed on the common land, original accused
No.4 Jangounda D. Patil had filed a civil suit in Tasgaon Court
against Appasaheb Patil and Annasaheb Patil pertaining to the
common land. That, all those suits are still pending. P.W.No.1 has
deposed that he along with others filed Regular Civil Suit
No.29/2005 against Balgounda D. Patil (Appellant No.1) and
Jangounda D. Patil (Original Accused No.4) restraining them from
constructing way going towards the land bearing Gut No.624
from Gut No.625A. The Civil Court had granted status quo order
in favour of P.W.No.1. That the land of original accused No.4 was
fallow land. As the Civil Court had passed the Status quo order in
that suit both the Appellant No.1 and original Acucsed No.4 were
annoyed against P.W.No.1 and his family members.
P.W.No1 has deposed that on 17.3.2005 was the birth
Nalawade A.S. 10/39 Cri.Appeal 352 &215
day of his nephew Ravikiran and hence, P.W.No.1, his wife,
Ashwinkumar (deceased) and his wife Aarti (P.W.No.2) had been
to village Vasagade to celebrate the birthday. At about 7.00p.m.
on that day while P.W.No.1 was present at his field (Mala) his
brother Ashwinkumar (deceased) came to him. At that time one
excavator had been to the land of accused No.4 Jangounda Patil
for removing the trees (shurbs).The said excavator was removing
the trees and keeping the same on the way and was also digging
the same. P.W.No.1 and Ashwinkumar (deceased) went there and
asked the driver of the excavator to stop the work and not to dig
the way as there is an order passed by the Civil Court. P.W.No.1
thereafter snapped one photograph. Then driver of the excavator
stop the work and went to inform his employer. P.W.No.1 and
Ashwinkumar (deceased) returned to the filed (Mala) and decided
to go to the police station after taking zerox copy of the stay
order of the Court. P.W.No.1 went to Bhilwadi for taking xerox and
his brother Ashwinkumar (deceased) went to his house at
Vasagade for keeping the milk pot. P.W.No.1 was waiting for his
brother Ashwinkumar for about 20 to 25 minutes and thereafter
gave a call on his mobile. As nobody accepted the said phone
call P.W.No.1 gave a call on the telephone at their house at
Vasagade when Anita (PW-8) wife of his elder brother informed
him that appellants assaulted his brother Ashwinkumar and
Nalawade A.S. 11/39 Cri.Appeal 352 &215
Appasaheb Patil by swords, scythe and sickle and they were
shifted to the dispensary of Civil Hospital, Sangli. P.W.No.1
therefore, rushed to the Civil Hospital Sangli. He saw that his
brother Ashwinkumar had suffered injuries on his person. That,
while taking treatment Ashwinkumar succumbed to the injuries.
The statement of P.W.No.1 was recorded by the police on
18.3.2005.
P.W.No.1 was cross examined at length by the
appellants. In his cross examination P.W.No.1 has admitted that
original accused No.4 Jangounda Patil was in the service of
Maharashtra State Co-op. Bank and he was at Mumbai. That,
there was talk between his brother and the driver of the
excavator for about five minutes. That, the distance between
Bhilwadi Police Station and the place of zerox machine is about
50ft. He did not find it necessary firstly to approach the police
station instead of going to hospital. He had not taken police to
show the place where the excavator was working. That excavator
had worked for about half an hour. At about 7.45 p.m.
Ashwinkumar (deceased ) returned to village after bringing milk.
This witness had denied the suggestion that he himself and
Ashwinkumar (deceased) assaulted the driver of excavator. He
has further admitted that in the night the police had been to Civil
Hospital, Sangli. He did not inform to the police about the
Nalawade A.S. 12/39 Cri.Appeal 352 &215
incident. He has admitted that he is not the eye witness to the
actual incident.
7) P.W.No.2 is Smt. Aarti Ashwinkumar Patil- wife of
deceased Ashwinkumar. P.W.No.2 has deposed that deceased
Ashwinkumar was working as teacher in Village Tardal. This
witness has also stated about the enmity between the accused
persons on the one hand and the deceased and his family
members on the other hand over the right of way. P.W.No.2 has
further deposed that on 17.3.2005 she had gone to Village
Vasagade for celebration of the birthday of Ravikiran son of
Mahavir i.e. husband of P.W.No.8 Anita Patil. The birthday
celebration was over at about 5.30p.m. At about 6.30p.m. her
husband was going to the field for bringing the milk and then
left the house. Her husband returned at about 7.45p.m. with milk.
Her husband told her that they will have to go to Sangli
immediately. At that time her husband received call on mobile
phone and therefore, he went out side the house for talking on it.
Her cousin father-in-law Appasaheb Patil was also standing there.
At that time P.W.No.2 and other family members of her family
heard hue and cry and therefore,P.W.No.2, Smt. Sushila (cousin
mother in law of P.W.No.2) and Smt.Anita (P.W.No.8) cousin sister
in law of P.W.No.2) came out of the house. They saw that
Appellant Nos. 1 to 3 were abusing her husband and threatened
Nalawade A.S. 13/39 Cri.Appeal 352 &215
him. At that time her husband was keeping his mobile hand set
inside the cover. Appellant No.3 Pradyumn gave blow of scythe
which he had hidden under the front portion of his shirt, on the
neck of her husband. At the same time, appellant No.2-
Vidyasagar @ Chotya started giving blows of the sword on the
person of her husband. Appellant No.1-Balgounda had also given
blows with the help of sickle on the person of her husband. Her
cousin father-in-law Appasaheb Patil tried to save her husband
but the appellant No.2 Vidyasagar @ Chotya assaulted
ig the
Appasaheb Patil with sword on his face and hands. Her cousin
mother-in-law was shouting that her son was no more. At the
same time P.W.No.2 was requesting appellant Nos. 2 and 3 not to
assault her husband as he was having two children but the
appellants did not stop. At that time, appellant No.1 Balgounda
pushed her by holding her hair. P.W.No.3- Sushila and P.W.No.8-
Anita tried to help her husband but accused appellant No.2
assaulted with the help of sword on the finger of P.W.No.8. That,
appellant No.1 Balgounda was insisting appellant No.2
Vidyasagar @ Chotya and appellant No.3 Pradyumn @ Gotya to
finish her husband. Due to the said assault, her husband
sustained injuries and collapsed on the ground. Accused persons
thereafter left the place. P.W.No.2 has further deposed that while
her husband was taking treatment at Civil Hospital, Sangli he
Nalawade A.S. 14/39 Cri.Appeal 352 &215
succumbed to the injuries at 10.00p.m. and Doctor declared him
dead. Police recorded her statement on the next day in her field.
In the cross examination of this witness, she has
admitted that after the birthday ceremony her deceased
husband, her brother-in-law Mahavir and children took dinner.
After dinner her husband went to the field for bringing milk. That,
she had also taken dinner before deceased went to bring the
milk. This witness has further admitted that there were blood
stains on the clothes but did not produce clothes before the
police. An omission to the effect that though she had stated to
the police about all the weapons only 'sword' has been
mentioned in her statement. No other material which is beneficial
to the appellants has further been elicited in her cross
examination.
8) P.W.No.5 is Appasaheb D. Patil- real brother of
appellant No.1-original accused No.4 and uncle of deceased
Ashwinkumar. P.W.No.5 in his testimony has stated that
appellant No.1-and original accused No.4 are his real brothers
while appellant Nos. 2 and 3 are his cousins who are sons of
appellant No.1. That, they all were residing separately.
Ashwinkumar (deceased) was the son of Annasaheb Patil.
Annasaheb was his real brother. That, as there was partition
amongst the brothers on the basis of the suit filed by appellant
Nalawade A.S. 15/39 Cri.Appeal 352 &215
No.1, all the brothers were residing separately since the year
1980. He was not in talking terms with appellant No.1 and
original accused No.4 Jangounda. That, the original accused No.4
was in service and was residing at Jaysingpur. That, the rest of
the accused persons were his neighbors at Vasagade. Deceased-
Ashwinkumar was residing with his wife and children at Sangli.
His brother Annasaheb was residing in his field. Ashwinkumar
(deceased) was residing in the house of P.W.No.3. That, the
incident in question took place on 17.3.2005. On 17.3.2005 there
was birthday of Ravikiran his grand son. Ravikiran was the son of
Mahavir. Ashwinkumar (deceased), his wife and children were
present to attend the said birthday ceremony. On that day, at
about 7.00p.m. P.W.No.5 had gone to his field and saw that the
work of excavation was going on in the field of original accused
No.4. After sometime, he returned back to his house. Then,
Ashwinkumar went to the field to bring milk. Ashwinkumar
returned and told to P.W.No.5 that he had asked the driver of the
excavator not to dig the way. After that Ashwinkumar (deceased)
was talking on his mobile phone outside the house at about
7.00p.m. At that time, the appellants came there and asked
Ashwinkumar as to why he was so aggressive when he had no
concern with the land. Ashwinkumar (deceased) told the
appellants that they had no concern with it. The appellants
Nalawade A.S. 16/39 Cri.Appeal 352 &215
threatened Ashwinkumar (deceased). Then, appellant Nos. 2 and
3 started assaulting with the help of weapon like sword to
Ashwinkumar (deceased). At that time, appellant No.1 Balgounda
instigated the appellant Nos. 2 and 3 to cut Ashwinkumar in
pieces. While appellant Nos. 2 and 3 were assaulting to
Ashwinkumar (deceased), he fell on the on the gutter. After
seeing that P.W.No,.5 tried to rescue Ashwinkumar and therefore,
he held the sword in his hand which was with appellant No.2. At
that time, appellant No.3 gave blow of sickle on his left hand and
appellant No.1 assaulted him with sickle on the face. P.W.No.5
further deposed that Ashwinkumar was lying on the ground,
appellant Nos. 2 and 3 assaulted him by weapons like sword and
sickle. That, his wife, wife of Ashwinkumar (P.W.No.2), wife of
Mahavir (P.W.No.8) rushed outside the house. In the said incident,
wife of Mahavir (Anita), P.W.No.8 suffered injury to the last finger
of her left hand. That, appellant No.1 pushed his wife and the
wife of Ashwinkumar. Then his son Mahavir came there with
whom the appellants started scuffling therefore, Mahavir ran
away. This witness has identified the weapons namely one big
sword, one small sword and sickle in the court.
In the cross examination, this witness has stated that
he had never seen those weapons during the course of
investigation. That, he had not given the description of each
Nalawade A.S. 17/39 Cri.Appeal 352 &215
weapon to the police. That, deceased Ashwinkumar was
assaulted with the help of all the three weapons when he was
standing at the first instance and at that time he was injured and
there was profused bleeding. P.W.No.5 has further admitted that
there is no necessity to go through the land of any of the accused
persons for reaching to his land. That, for some period the land of
accused No.4 was uncultivated before the death of Ashwinkumar.
That, excavator was in the field of Jangounda and was at a
distance of 50ft. from the ig vasti of Annasaheb Patil- father of
deceased Ashwinkumar. That, the excavator was brought just to
cut the shrubs and other material. In the cross examination this
witness had admitted that his son Mahavir and deceased
Ashwinkumar and others did not take dinner after the birthday
function of his grand son was over. In further cross examination
this witness had admitted that he was an accused in one criminal
case in respect of kidnapping and abduction of a woman and a
minor girl and he was convicted in that case. That, he had
undergone imprisonment at Kalambe Jail. ( It appears to us that
this antecedent of P.W.No.5 has been brought on record by the
appellants with a view to show that he is not a man of repute and
in fact suffers from moral turpitude). P.W.No.5 has further
admitted that accused No.2 Vidyasagar was holding long weapon
and P.W.No.5 held the same by both hands, at that time accused
Nalawade A.S. 18/39 Cri.Appeal 352 &215
No.2 snapped weapon from his hands, accused No.2 succeeded
from snapping the weapon from his hands. That during that
scuffle he suffered injuries to his both palms. P.W.No.5 has
admitted that he has not shown those injuries to the Doctor.
Certain other omissions and contradictions have been brought on
record by the appellants which according to us are not material
while deciding the present appeal.
9) P.W. No.8 Smt. Anita Mahavir Patil is the sister-in-law of
deceased Ashwinkumar and eye witness to the incident. P.W.No.8
in her testimony has deposed about the alleged conspiracy
which was hatched between the accused persons and the
original accused No.4 Jangounda in the house of appellant No.1.
However, we may note here itself that Trial Court has disbelieved
the theory of conspiracy in Paragraph 51 of its Judgment and
therefore, we refrain ourselves from narrating the same in the
testimony of P.W.No.8 Anita. P.W.No.8 has further deposed that
deceased Ashwinkumar and his wife and their children had been
to her house for the function of birthday of her son. Her husband
Mahavir was not examined. Ashwinkumar took the food and
thereafter Ashwinkumar (deceased ) left the house to bring the
milk from the field. That, at about 7.45p.m. Ashwinkumar
returned to house after collecting milk from the field. After
keeping milk in the house he asked his wife that they will have to
Nalawade A.S. 19/39 Cri.Appeal 352 &215
go to Sangli. At that time, Ashwinkumar received call on the
cellphone and he went outside the house where his father-in- law
Appasaheb was standing. At that time she heard hue and cry.
P.W.No.8, her mother-in-law namely Smt. Sushila, Aarti wife of
deceased Ashwinkumar came out of the house and they saw the
dispute between the appellants and the deceased was going on.
At that time appellant No.2 Vidyasagar threatened Ashwinkumar
(deceased) and took out sword which he had hidden under the
shirt and gave its blows to Ashwinkumar. At the same time,
appellant No.2 also started assaulting with sickle to
Ashwinkumar. Appellant No.1 Balgounda was also assaulting
Ashwinkumar with the help of sickle. Hence, P.W.No.8, her in laws
and the wife of her brother requested the appellant Nos. 2 and 3
not to assault Ashwinkumar. While she was helping Ashwinkumar,
appellant No.2 Vidyasagar inflicted one blow of sword on the finer
of her left hand. At that time appellant No.1-Balagounda was
instigating appellant Nos. 2 and 3 to finish Ashwinkumar.
Appellant No.2 also pulled her hair and pushed aside. That,
appellants assaulted her father-in-law on his left cheek and over
left hand. Ashwinkumar was profusely bleeding to the said
injuries and he fell in the gutter. In spite of the same the
appellants were assaulting deceased Ashwinkumar. That, after
some time, her husband Mahavir came to the spot and took
Nalawade A.S. 20/39 Cri.Appeal 352 &215
P.W.No.8 in the dispensary of Dr. Suhas Patil.
In the cross examination this witness had admitted
that there was no talk between herself and her husband while
they were going to the hospital. That, the telephone which was
at her residence was in working condition at the relevant time
and neither herself nor her husband informed about the incident
to the police. P.W.No.8 has further admitted that other persons
from the Village were not present at the place of incident. This
witness has categorically denied that on 18.3.2005 at abut
6.00p.m. electric supply was cut off. This witness has further
denied that there was rush in the said evening near the hair
cutting saloon which was near to her house. Apart from what is
stated herein above, in our view, minor discrepancies and
omissions which were brought on record by the appellants, no
other useful material has been elicited from the lengthy cross
examination of this witness.
10) P.W.No.9 is Prakash Balgounda Patil an independent
witness to the incident. P.W.No.9 Prakash in his testimony has
stated that he was permanent resident of Village Vasagade. He
knew all the appellants and other witnesses. That, on 17.3.2005
at about 7.30p.m. he was sitting on the Katta of Jain Vasti of
Village Vasagade. At that time, accused Nos. 2 and 3 were
hurriedly walking. After 10 to 15 minutes he heard hue and cry
Nalawade A.S. 21/39 Cri.Appeal 352 &215
and saw that there was scuffle going on the road in front of the
house of Appasaheb (P.W.No.5). At that time, he saw accused
Nos. 1 and 2 assaulting with the help of sword and sickle to
deceased Ashwinkumar. Accused No.1 was assaulting
Ashwinkumar with sickle and accused No.2 Vidyasagar was
assaulting with the help of sword and accused Pradumnya was
assaulting with the help of sickle to the Ashwinkumar.
Ashwinkumar fell near the gutter. At that time Appellant No.1 was
instigating his sons i.e. appellant Nos. 2 and 3 by saying not to
leave and to finish Ashwinkumar. P.W.No.9 has stated that he saw
the said incident from a distance of about 14 to 15 ft. He did not
rescue Ashwinkumar as the appellants were holding weapons and
therefore, he frightened. He has further deposed that he saw the
incident for about 2 to 3 minutes. After the assault accused ran
away. He then went to Ashwinkumar and saw that Ashwinkumar
was profusely bleeding and having injuries on his body.
Ashwinkumar was having injuries on his stomach, chest, waist
and on the head. That, one Appasaheb (P.W.No.5) and one Kaku
(aunt) was also injured.
In the cross examination this witness has stated that
he was sitting in the Mandir which is surrounded by other houses.
That, it was Jain temple. The height of the said wall is about 6 to
7-ft. That, if a person has to go to the place of the incident from
Nalawade A.S. 22/39 Cri.Appeal 352 &215
the temple he has to go from the eastern side of the door then
he has to proceed towards the southern side on the north south
road then he had to proceed further east west and has further to
meet east west road and then to at a distance of about 60 to 70
ft. from the west side. P.W.No.9 further admitted that he was in
the temple at about 7.30p.m. when electric supply was cut off.
11) P.W.No.3 is Harishchandra Shivaji Patil, a panch
witness to the discovery panchanama at the instance of
appellant No.1 wherein a scythe was discovered from him. The
said discovery panchanama is at Exh.63. Appellant No.1
thereafter in presence of P.W. No.3 also pointed out the place
where he burnt the clothes which were on his person at the
time of commission of offence. At the said place, police found
ash mixed with soil. The said panchnama is at Exh.64. P.W.No.4 is
Bajrang Dhondiram Patil a Panch witness to discovery of sword
and sickle at the instance of appellant No.2 Vidyasagar @
Chotya. The said panchanama is at Exh.67. Accused No.2
-Vidyasagar @ Chotya also pointed out the place where he burnt
the clothes which were on his person at the time of commission
of offence. The police found ash mixed with soil at the said place.
The said panchanama dated 24.3.2005 is at Exh.68.
12) P.W.No.6 is Dr. Archana Sharad Sawant, Medical officer
who examined P.W.No.5 Appasaheb Daulata Patil and also
Nalawade A.S. 23/39 Cri.Appeal 352 &215
conducted the post mortem examination of Ashwinkumar Anna
Patil (deceased). P.W.No.6 in her testimony has deposed that she
was then working as Medical Officer and was attached to the
Civil Hospital, Sangli. That, on 17.3.2005 at about 8.30p.m. she
examined Appasaheb who was brought by his daughter in law
Aarti Patil with the history of assault at about 7.45 p.m. at Village
Vasagade with sword. She found that the said patient was
conscious. She found following injuries on his person.
1) CLW over right cheek, admeasuring 6x1x1
cm. Bleeding present.
2) Abrasion over the left arm laterally 3x1 cm.
and it was red in colour.
She found that there were no bone injuries to the said Appasaheb
Patil. She opined that the cause of injury was hard and blunt
object and the age of the injuries was within six hours. The
nature of injuries was simple. Accordingly, she issued the Medico
Legal Certificate, Exh.72.
On the same day P.W.No.6 also examined one Mr.
Ashwinkumar Anna Patil who was brought by his wife Aarti Patil in
the hospital. She narrated the history of assault at about
7.45p.m. with sword at Village Vasagade. On examination she
found general condition of the patient was poor, semi conscious
pulse 140 per minute and the blood pressure was 70. She
examined him and admitted in surgery department. The said
Nalawade A.S. 24/39 Cri.Appeal 352 &215
patient while taking treatment expired at about 10.00 p.m. She
received corpse of Ashwinkumar at about 12.00 in the mid night
and she performed autopsy. On external examination she found
following injuries on his person.
1) Incised wound over the left ear of size
14x5x4c. deep splitting whole of the external and
middle ear upto inner ear read elliptical.
2) Incised wound 10x4x6 cm, size just below the
left ear extending from angle of mandible
posteriorly upto mid-line cutting occipital bone,
cervical vertebrate No.1 and 2 extending upto
spinal cord, red elliptical.
3) Incised wound of sexe 4x2x2 over left occipital
region red.
4) Incised wound of size 8x2x2 extending from
thyroid cartilage upto lateral border of neck left side
cutting jugular veins red, elliptical.
5) Incised wound over left shoulder 9x4x1 cm.
size red.
6) Incised wound of 4x2x2 cm. size near left
shoulder on backside, red.
7) Incised would 7x2x2 cm. over lateral aspect
of neck near left shoulder elliptical red.
8) Incised wound of 2x2x2 cm. over left arm
laterally red.
9) Incised wound of 5x1x1 size at left elbow red.
10) Sutured wound at base of index middle ring
finger of 6 cm. length dorsally left hand.
11) Sutured wound at base of left thumb dorsally
Nalawade A.S. 25/39 Cri.Appeal 352 &215
of 4 cm. length.
12) Sutured wound over left side of chest of 3cm.
in length in the 6th inter coastal space (on
explanation this would had extended left lung
pleura).
13) Sutured wound over left chest of 2cm. length
would no.12 in 5th inter coastal space.
14) Incised wound over left back of 3x2x2 cm. in
5th inter coastal space, red.
15) Incised wound of 3x2x2 cm. size at the inter
scapular region, red.
16)
Incised wound of 6x2x1 cm. size at left interior
angle of scapula, red.
17) Incised wound of 1x1x1 cm. at right interior
angle of scapula, red.
18) Sutured wound over right arm of 3 cm. length
laterally.
19) Incised wound near right shoulder of 4x2x2
cm. red.
20) Sutured would near right hand at base of
thumb extending upto ring finger of 4 cm. length,
palmer side, red.
21) Incised wound on right forearm 3x1x1 cm.
ventral side, red.
22) Horizontal stab injury over right
hypochondriac region of size 9x5 peritoneum deep
traversing stomach, Omentum, liver, elliptical
oozing present.
23) Incised wound of size 3x2x2 cm. at lumber
region, right side, red.
Age of injury : Within 12 hours.
Nalawade A.S. 26/39 Cri.Appeal 352 &215
Object causing: Injury Nos. 12 and 22 pointed
sharp edged object.
Rest injuries : Sharp edged object.
On the internal examination she found following
injuries.
1) Evidence of brain stem injury, transected
partially.
2) Regarding the Thorax, the left side lung and
pleura damaged at the level of 6th and 7th inter
coastal space and there was evidence of
haemothorax of left side corresponding to injury
No.12 and 13.
3) Regarding
ig abdomen, there is
bomoperitonecim left present. in the column of
stomach, evidence of stab over anterior wall of
stomach of 4x3 cm. size extending over
peritoneum and anterior surface of left lobo of liver
corresponding to injury no,.22. Regarding liver,
there is incised wound over anterior surface of left
lobe of 4x2 cm. corresponding to injury no.22.Rest
organs were oale. Regarding the spine and spinal
cord there is palpable fracture over C-1 and c-2
vertebra with partial transaction of spinal cord at
this level.
13) P.W.No.6 opined that probable cause of death was
"Shock due to injuries to vital organs".She prepared the
memorandum of post mortem examination of Ashwinkumar
(deceased) at Exh.73. She further opined that injuries mentioned
in column No.17, 12 and 22 were vital injuries. Injury Nos. 12 and
Nalawade A.S. 27/39 Cri.Appeal 352 &215
22 were stab injuries. She has further stated that all the said
injuries at Sr. Nos. 12 to 22 can be possible due to the said three
weapons before the court. She has further stated that Injury Nos.
2 and 4 can be possible by weapon Article 12 i.e. sickle . Injury
No.12 can be possible by weapon- Article No.11 i.e. sword. Injury
N.22 can be possible by sickle Article No.14. P.W.No.6 also
produced diagram along with certificate which is at Exh.73.
In the cross examination P.W.No.6 has admitted that
injury Nos. 1 and 2 are not possible by sharp edged weapon. She
has further admitted that Injury No.22 can be possible by any
curved pointed weapon. She has further stated that she had not
mentioned regarding the contains of stomach in column No.21 in
the post mortem notes.
14) P.W.No.7, Doctor Anil Suryawanshi had examined
P.W.No.8 Anita Mahavir Patil and her husband Mahavir Appasaheb
Patil. It is to be noted here that as the prosecution has not
examined Mahavir Appasaheb Patil, we do not feel necessary to
narrate the injuries caused to him and the treatment given by
P.W.No.7. P.W.No,.7 has deposed that on 19.3.2005 at about
10.30p.m. one Anita Mahavir Patil was brought by police along
with police yadi. Smt. Anita complained about the history of
assault. On examination P.W.No.7 found that her general
condition was good. He found following injuries on her person.
Nalawade A.S. 28/39 Cri.Appeal 352 &215
1) CLW to the left hand fourth finger measuring
3x1x1cm. having 3 stitches.
2) CLW to the left third finger measuring 3x1x1
cm. having three stitches.
3) CLW injury to left second finger measuring
1x1/2 c.m. deep to skin.
The nature of injuries are simple and they
are within 48 hours and cause of injury was hard
and blunt object.
Accordingly. he issued Medical Certificate which is at
Exh.79. He has further deposed that Anita was already treated
and hence there were three stitches on injury No.2.
In the cross examination this witness has admitted
that injuries mentioned in Certificate Exh.79 are possible if a
person was working in the field.
15) P.W.No.10 Ganpat Dinkar Pingle, Assistant Police
Inspector then attached to Palus Police Station. P.W.No.10 has
deposed that on 13.8.2005 at about 9.45p.m. he received the
message from constable of Vishrambag Police Station who was
attached to Civil Hospital, Sangli that there was scuffle at Village
Vasagade and therefore, P.W.No.10 directed to Police Sub
Inspector Choudhary to visit the Civil Hospital, Sangli. P.W.No.10
came to know that offence was registered at Palus Police Station
about the incident which took place at Village Vasagade. Police
Sub Inspector Shri. Choudhary started investigation in the said
Nalawade A.S. 29/39 Cri.Appeal 352 &215
crime bearing No.24/2005. P.W.No.10 and drew the
memorandum panchanama Exh.62 of accused No.1 Balgounda
Patil wherein he expressed his willingness to produce the weapon
and to show the place where he burnt the clothes which were
on his person at the time of commission of offence. In
pursuance of the memorandum statement (Exh.62) accused No.1
Balgounda Patil produced a sickle (Article A). Accordingly,
P.W.No.10 effected memorandum panchnama Exh.63. Accused
No.1-Balgounda Patil also showed the place where he burnt the
clothes and the ash which was lying at the said place was
attached under panchanama which is at Exh. 64. In his cross
examination no material which is useful to the appellants has
been elicited.
16) P.W.No.11 is Ashok Shankarrao Choudhary, Police Sub
Inspector the Investigating officer of the present crime. P.W.No.11
has deposed that he was then attached to Palus Police Station. At
about 10.30 p.m. on 17.3.2005 API-Pingle (P.W.No.10) informed
him that at Village Vasagade one Ashwinkumar and Appasaheb
Patil were beaten and they have been taken to Civil Hospital,
Sangli. API. Paingle (P.W.No.10) directed him to proceed there.
P.W.No.11 along with his writer and two constables went to Civil
Hospital, Sangli at about 11.15p.m. At that time he saw
Appasaheb Patil (P.W.No.5) in injured condition sitting in the
Nalawade A.S. 30/39 Cri.Appeal 352 &215
casualty department. P.W.No.11 enquired with Appasaheb Patil
when P.W.No.5 informed him that Ashwinkumar was no more. At
that time he came to know that police from Vishrambag Police
Station were performing inquest panchanama. Thereafter, he
took his complaint which is at Exh.70. P.W.No.11 in his testimony
has further deposed about the various steps which he had taken
during the course of investigation and upto submitting the
charge sheet in the Court.
In his cross examination P.W.No.11 has admitted that
he interrogated Prabhavati Suryawanshi, Kalpana Chandrakant
Suryawanshi and Vijaya Narayan Suryawanshi who were
neighbours of deceased and recorded their statements being eye
witnesses to the incident. He has further admitted that he sent
the muddemal articles to the Chemical Analyer but till then it was
in the custody of muddeal clerk. No other material beneficial to
the appellants has been brought on record in the further cross
examination.
17) Mr. Chaudhary, learned counsel appearing for the
appellants submitted that the testimony of P.W.Nos. 2 and 8 is
not reliable as these two witnesses in their testimony have
deposed that the victim had taken food prior to the incident but
the medical evidence is contrary thereto. He submitted that
Column No.20 of the post mortem notes is silent about the same.
Nalawade A.S. 31/39 Cri.Appeal 352 &215
He submitted that in almost all the criminal cases, it is invariably
mentioned in Column No.20 (stomach contents) of the post
mortem notes about the existence of the food contained
therein. He further submitted that it is also generally mentioned
whether the food is in semi digested or digested state and yet
this is one exceptional case . That procedure has been departed
for the best reasons known to the prosecution. He therefore,
contended that prosecution witnesses namely P.W.No.2 and
P.W.No.8 who have stated that the deceased had taken food prior
to the incident are not telling the truth before the court and
therefore, safe interference can be drawn that the deceased in
fact did not take food in their presence. He further contended
that as the testimony of these two witnesses is contrary to the
medical evidence and in particular, the noting of the Medical
Officer in Column No.20 of the post mortem notes it cannot be
relied upon. In support of his contention, he relied on the
following decisions of the Supreme Court
a) Chandrakant Balakrishna Gadankush and anr. Vs.
State of Maharashtra Criminal Appeal No.529 of 2006
decided on 30th March 2015 (Para 15 to 18)
b) State of Uttar Pradesh vs. Ashok Kumar and ors.
(1979) 3 SCC 1 (Para 5).
c) Bhimappa vs. State of Karnataka (AIR 1993 SC 1469)
Nalawade A.S. 32/39 Cri.Appeal 352 &215
AIR 1993 SC 1469 (Para 7 & 8).
d) Moti and others vs. State of UP (2003) 9 SCC 444 (Para
14) (2003) 9 SCC 444.
It is to be noted here that P.W.No.6 Dr. Archana Sawant
in her cross examination has only stated that she had not
mentioned regarding the contains of stomach in Col. NO.20 of
the post mortem notes. The record discloses that the appellants
have failed to bring on record the fact that stomach was in fact
empty at the time of conducting the post mortem. There is no
such statement or any admission given by P.W.No.6 Dr. Archana
Sawant. in the entire testimony. We are of the considered opinion
that it can utmost be treated as an error on the part of P.W.No.6
i.e. Medical Officer who conducted autopsy in not mentioning the
contents in the stomach. However,the benefit of the same cannot
be given to the appellants by disbelieving the other version of
the said two eye witnesses.
18) The learned counsel for the appellants thereafter
contended that the testimony of P.W.No.8 Anita Patil is not
reliable. Though she mentions the presence of her husband Mr.
Mahavir, the said Mahavir has not been examined by the
prosecution and therefore, adverse inference has to be drawn
about the said fact. A minute perusal or the scrutiny of evidence
of Anita Patil leads us to believe that her testimony is truthful and
Nalawade A.S. 33/39 Cri.Appeal 352 &215
she is reliable witness. Her presence at the scene of offence was
very natural and her evidence can safely be relied upon.
19) The learned counsel for the appellants thereafter
submitted that the testimony of P.W.No.9, an independent
witness cannot be relied upon as other witnesses namely P.W.
Nos. 2, 5 and 8 have not deposed about his presence either at
the time of commission of the offence or soon thereafter and
therefore, P.W.No.9 Prakash Patil is a got up witness. We are of
the considered opinion that even if we do not take into
consideration the ocular evidence of Prakash Patil (P.W.No.9), the
testimony of P.W.No.2 Aarti Patil, P.W.No.5 Appasaheb Patil and
P.W.No.8 Anita Patil is trust worthy and reliable and the same is
sufficient to base conviction of the appellants.
20) The learned counsel for the appellants then
contended that the testimony of P.W.No.5-Appasaheb Patil is
contrary to the medical evidence. He claims that he was
assaulted by sword and sickle however, the medical evidence
clearly shows that the injuries caused to P.W.No.8 are not
possible by sharp weapon produced before the court. That, there
was presence of incised wounds on his palms which she claims to
have caused when he held the sword of accused No.2-
Vidyasagar @ Chotya. The learned counsel further contended
that P.W.No.5 Appasaheb Patil admitted in his cross examination
Nalawade A.S. 34/39 Cri.Appeal 352 &215
that he did not mention anything about the sword to the doctor
at the time of his treatment. The learned counsel therefore,
submitted that when the ocular evidence is completely
inconsistent with the medical evidence, it cannot be relied upon
and in support of his contention the learned counsel relied upon
the following two authorities of the Supreme Court.
a) Mani Ram and others vs. State of U.P.
1994 Supp(2)SCC 289 (Para 9)
b) State of Rajasthan vs. Bhanwar Singh
2005 SCC (Cri.) 73 (Para 6).
After minutely scrutinizing the evidence of P.W.No.5, it
appears to us that the version about holding of sword in his
hands at the time of attack by accused No.2 Vidyasagar @
Chotya, is an exaggerated version. It is by now settled position of
law that many a times the injured witness try to magnify the
incident with a view to gain sympathy. However, we are of the
considered opinion that if the exaggerated version of P.W.No.5 is
deleted from his testimony his other ocular evidence of the facts
which took place at the time of incident can safely be relied
upon.
21) The learned counsel for the appellants thereafter
would contend that in the present case it is the grave and sudden
provocation which had led to the occurrence of the present crime
Nalawade A.S. 35/39 Cri.Appeal 352 &215
and therefore,the appellants cannot be held guilty of an offence
under Section 302 of the Indian Penal Code but at the most can
be convicted under Section 304 Part II of the Indian Penal Code.
In support of his contention he relied upon following three
decisions of the Supreme Court.
a) Akhtar vs. State
AIR 1964 All 262 (Para 11)
b) Baba @ Gulaam Raza Hussain Hadi vs. State of
Maharashtra
2000 (1) Mah.L.J. 164 (Para 13A)
c) Sukhbir Singh vs. State of Haryana
AIR 2002 SCC 1168 (Para 19)
21) We have minutely perused the evidence of the eye
witnesses namely P.W.No.2 Smt. Aarti Patil wife of the deceased
Ashwinkumar, P.W.No.5-Appasaheb Patil injured witness, the
brother of accused No.1 and No.4, P.W.No.8 Anita Patil and
P.W.No.9 Prakash Patil. As stated herein above, even if, we keep
aside the evidence of P.W. No.9 Prakash Patil, according to us the
testimony of P.W.Nos. 2, 5 and 8 is fully reliable and trust worthy.
It is the prosecution case that several litigations were pending
between the appellants and the victim's family. The previous
history of litigations has been aptly narrated by P.W.No.1
Ashishkumar Patil the brother of the victim. The incident which
Nalawade A.S. 36/39 Cri.Appeal 352 &215
occurred at about 7.30p.m. on 17.3.2005 has to be considered in
the background of this long standing family dispute between the
said two groups over their land. P.W. No.1-Ashishkumar stopped
the work of excavator on the land of accused No.4 Jangounda
Patil after there were talks between the deceased and the driver
of the excavator for about 5 minutes and thereafter the driver
left to inform his employer in that behalf. P.W.No.5 Appasaheb
Patil has admitted that neither he nor his brother had any
concern with the land where the excavation work was going on.
In our opinion, the stopping of the work by the victim
Ashwinkumar on the land owned by the accused persons would
have caused the basic provocation. P.W.No.2 Aarti in her
deposition has stated that on the day of incident at about
7.30p.m. her husband came from the field with milk pots and
told her that they have to go to Sangli immediately. This shows
that all was not well in the field and there was every possibility
that victim had not only obstructed the driver of the excavator
from doing the work but there had been something more than
mere obstruction in the field, as was suggested by the defence to
P.W.No.1 in his cross examination. In our considered opinion a
conjoint reading of the evidence of P.W. Nos.1,2,5 and 8
demonstrate that, as the victim Ashwinkumar stopped the work
of excavation of the land to which he was not having any
Nalawade A.S. 37/39 Cri.Appeal 352 &215
concern, the appellants got enraged for the same and as soon as
the driver of excavator informed the said fact to the appellants
they rushed to the house of deceased Ashwinkumar with a view
to question him of his said act. The testimony of P.W.No.5
Appasaheb Patil also demonstrates that the appellant Nos. 1 to 3
after coming to the spot first questioned the victim Ashwinkumar
as to why he was so aggressive as he had no concern with the
land to which Ashwinkumar replied them that the appellants have
no concern with it and thereafter there were alterations amongst
them and the incident of assault ensued thereafter. In the
present case, the prosecution did not examine the driver of the
said excavator to bring on record the exact incidence which took
place in the field. However, after taking into consideration the
facts of the present case, we are of the opinion that due to the
threats administered by deceased Ashwinkumar while stopping
the excavator work driver could not come forward. The evidence
of P.W.No.1 Ashishkumar is clear that there were heated
arguments before the fight started, which ultimately lead to the
injuries on the person of victim Ashwinkumar and other
witnesses. In view of the above, we are of the considered opinion
that the present incident took place due to grave and sudden
provocation and the appellants were deprived of their self
control when the deceased Ashwinkumar questioned about the
Nalawade A.S. 38/39 Cri.Appeal 352 &215
authority of the appellants about their own land and thereafter
appellants caused injuries to the deceased Ashwinkumar and
other witnesses and therefore, the present case would fall under
Section 304 Part II and not under Section 302 of the Indian Penal
Code. We therefore, partly allowed the appeal by holding that
the appellants are guilty of an offence punishable under Section
304 Part II of the Indian Penal Code. We confirm the conviction
and sentence of the appellants under Section324 read with 34 of
the Indian Penal Code and under Section 201 read with 34 of the
Indian Penal Code. As far as Criminal Appeal No.215 of 2008 is
concerned which has been preferred against the acquittal of
original Accused No.4 Jangounda Daulata Patil. The detailed
scrutiny of the entire evidence available on record shows that the
Trial Court after taking into consideration the facts of the said
case has rightly acquitted the said accused. We find no merits in
the said appeal and the same is accordingly dismissed.
ORDER
a) Appeal is partly allowed.
b) The conviction and sentence of the appellants under
Section 302 read with 34 of the Indian Penal Code is hereby set
aside and they are convicted under Section 304 Part II of the
Indian Penal Code and are sentenced to suffer rigorous
Nalawade A.S. 39/39 Cri.Appeal 352 &215
imprisonment for 10 years with a fine of Rs.1000/- each. In
default of payment of fine the appellants shall under go further
rigorous imprisonment of three months.
c) The conviction and sentence of the appellants
awarded by the Trial Court under Section-324 read with 34 and
under Section-201 read with 34 of the Indian Penal Code is
hereby maintained.
d) The conviction and sentence of accused No.1-
Balgonda Patil and Appellant No.2 Vidyasagar @ Chotya Patil
under Section 201 read with 34 of the Indian Penal Code is also
maintained.
e) All the substantive sentences of the appellants Nos. 1
to 3 shall run concurrently.
f) Appeal is partly allowed in the aforesaid terms.
g) Criminal Appeal No.215 of 2008 is hereby dismissed.
(A.S. GADKARI, J.) (ACTING CHIEF JUSTICE)d.
