Ramesh Raghavendra Gajmal vs State Of Maharashtra
2017 Latest Caselaw 5227 Bom

                                              Criminal Appeal No.451/2000 with
                                                         Cri.Appeal No.13/2001
                                        1


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                        CRIMINAL APPEAL NO.451 OF 2000


 Ramesh s/o Raghvendra Gajmal
 Age 34 years, Occu. Agri.,
 R/op Dasala, Taluka Sailu,
 District Parbhani                          ...   APPELLANT

          VERSUS

 The State of Maharashtra,
 (Copy to be served on Public
 Prosecutor, High Court of
 Bombay, Bench at Aurangabad)               ...   RESPONDENT

                                 .....
 Shri R.N. Chavan, Advocate for appellant (appointed)
 Shri S.J. Salgare, A.P.P. for Respondent/ State
                                 .....

                                      WITH

                        CRIMINAL APPEAL NO.13 OF 2001



 The State of Maharashtra
 through Public Prosecutor,
 High Court of Bombay,
 Bench at aurangabad                        ...   APPELLANT

          VERSUS

 1.       Ramesh s/o Raghvendra Gajmal
          Age 33 years, Occu. Agri.,
          R/o Dasala, Taluka Sailu,
          District Parbhani

 2.       Bharat s/o Raghvendra Gajmal,
          Age 28 years, Occu. Agri.,
          R/o Dasala, Taluka Sailu,
          District Parbhani



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                                               Criminal Appeal No.451/2000 with
                                                         Cri.Appeal No.13/2001
                                        2



 3.       Raghvendra s/o Nanasaheb Gajmal,
          Age 65 years, Occu. Agri.
          R/o Dasala, Taluka Sailu,
          District Parbhani         ...  RESPONDENTS

                                  .....
 Shri S.J. Salgare, A.P.P. for appellant/ State
 Shri R.N. Chavan, Advocate for respondents (appointed)
                                  .....


                               CORAM:       T.V. NALAWADE AND
                                            SUNIL K. KOTWAL, JJ.

                               DATE :       31st July, 2017.


 JUDGMENT (PER SUNIL K. KOTWAL, J.) :

1. Criminal Appeal No.451/2000 is directed by original

accused No.1 in Sessions Trial No.12/2000 against the judgment

and order of conviction for the offence punishable under Section

304 Part I of the Indian Penal Code, passed by Sessions Judge,

Parbhani. Criminal Appeal No.13/2001 is filed by State against

the judgment and order of acquittal of original accused No.2 and

3 as well as for converting conviction of accused No.1 under

Section302 of the Indian Penal Code in the same Sessions Case.

These both appeals being against one and the same judgment,

are disposed of by this common judgment.

2. Facts leading to institution of these appeals are that,

accused No.1 to 3 were prosecuted for the offence punishable

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

under Sections 302, 326 and 323 read with Section 34 of the

Indian Penal Code. Prosecution case in brief is that, informant

Bhagirath Gajmal (P.W.1) used to reside at Mouze Dasala along

with his brother Purushottam and father Asaram. Asaram was

political personality in the village and he was active on behalf of

Congress-I Party. On the other hand, accused No.1 to 3 were

the members of Shiv Sena Party. Accused No.1 Ramesh and

accused No.2 Bharat are the sons of accused No.3 Raghvendra.

Relations between accused and family of Asaram Gajmal were

strained. On 24/10/1999 at about 9.30 p.m., when Asaram

returned to his residence, he informed Bhagirath (P.W.1) and

Purushottam that on that day, on account of some oral

altercations between him and accused No.1 and 2, they slapped

him across his face. Therefore, Bhagirath (P.W.1) and his

brother Purushottam along with their father Asaram went

towards the residence of accused persons. On way, near the

house of accused persons, they met with the accused No.1 to 3.

That time, accused No.1 Ramesh and accused No.3 Raghvendra

were armed with axes and accused No.2 Bharat was armed with

knife in his hand. As soon as accused persons saw the informant

Bhagirath and others, they rushed on their person. Initially

accused No.2 Raghvendra stabbed Asaram on his upper arm.

Asaram fell down on the ground. That time, accused No.1

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

Ramesh inflicted single axe blow on the left side of head of

Asaram. Asaram sustained serious bleeding injuries. Therefore,

when Bhagirath (P.W.1) and Purushottam tried to lift their father,

that time accused No.3 inflicted blow of the handle of axe on the

back of Bhagirath and inflicted axe blow on the wrist of

Purushottam. Thereafter, Ganesh Gajmal and Narayan Nathrao

Gajmal (P.W.3) rushed on the spot and they rescued Asaram and

his sons from the clutches of accused persons. Raghvendra and

his brother took Asaram to Police Station, Sailu. Head Constable

Chavan (P.W.6) obtained F.I.R. (Exh.32) of Bhagirath (P.W.1) on

25/10/1999 at about 00.35 Hrs. Injured Asaram was referred to

Civil Dispensary at Sailu. Dr. Shri R.M. Sharma (P.W.7)

examined injured Asaram and after first aid, looking to the

serious condition of Asaram, referred him to Civil Hospital,

Parbhani for better treatment. Asaram was admitted in Civil

Hospital, Parbhani where Dr. R.M. Kanakdande (P.W.8) examined

him and serious head injury was noticed. Surgeon Dr. R.J.

Rathod examined and started treatment to Asaram. However,

looking to the deteriorating condition of Asaram, he was referred

to Government Medical College, Aurangabad where he

succumbed to his injuries. Dr. S.P. Tapse (P.W.9) performed

autopsy examination on dead body of Asaram on 25/10/1999 in

between 8.00 p.m. to 9.00 p.m. and issued post mortem notes

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

(Exh.58). He opined that, the cause of death of Asaram was

shock and haemorrhage due to fracture of skull. By that time,

offence was already registered at Police Station, Sailu vide Crime

No.153/1999 and investigation was started by Head Constable

Sawant. However, later on, investigation was handed over to

A.P.I. Tilekar on 25/10/1999 itself. Spot panchanama (Exh.33)

was prepared and blood stained clothes were seized from

accused No.1 to 3. During the course of investigation, accused

were arrested and as per their statements, knife (Article 11) and

two axes (Articles 10 and 12) were seized. Even blood stained

clothes of the deceased were seized. All seized articles were

referred to Chemical Analyser. After completion of investigation,

charge sheet was submitted before Judicial Magistrate, First

Class, Sailu.

3. Offence punishable under Section 302 of the IPC

being exclusively triable by Court of Sessions, this case was

committed to Sessions Court, Parbhani. Charge (Exh.17) was

framed against accused No.1 to 3 for commission of the offence

punishable under Sections 302, 326, 323 read with Section 34 of

the Indian Penal Code. Alternate charge was also framed

individually against all accused persons. They pleaded not guilty

and claimed trial.

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

4. Prosecution examined total 10 witnesses. Defence

did not lead any evidence. However, accused No.1 submitted

written statement (Exh.71) which was adopted by other accused

and contended that, on the day of incident, at about 9.00 p.m.,

when accused No.1 and 2 were sitting in front of their house,

that time, deceased Asaram proceeded in front of their house

while abusing under the influence of liquor. That time, there was

altercation of hot exchange of words between accused and

Asaram. Thereafter, Bhagirath (P.W.1) and Purushottam came

on the spot holding axes in their hands. They quarreled and

abused the accused persons and inflicted axe blow on the head of

accused No.1 and 2 by butt end of axe blade, due to which

accused No.1 and 2 sustained bleeding injuries. Immediately

accused No.2 Bharat lodged report to Police Station, Sailu and,

therefore, the accused No.1 and 2 were already prosecuted

before Judicial Magistrate, First Class, Sailu. In other words,

accused denied to have caused injury to Asaram and in the

alternate, they have taken self defence that on the date of

incident, deceased Asaram and his two sons went to the house of

accused persons armed with axes and they assaulted the accused

persons. After sustaining injuries, while exercising right of self

defence and due to apprehension of danger to their life, they

might have caused the death of Asaram.

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

5. Learned Advocate for the accused No.1 assailed the

judgment of the trial Court on the ground that the three eye

witnesses examined by prosecution are suppressing material

facts from the Court and they are not truthful witnesses. He also

pointed out certain contradictions and omissions emerging in the

testimony of these witnesses. His next limb of the argument is

that, the weapon of the offence and seized clothes of the accused

were not properly sealed. Therefore, in absence of evidence of

carrier of the muddemal, prosecution cannot rule out a possibility

of tampering of the muddemal when it was kept at Police Station.

6. On the other hand, learned A.P.P. for the State

supported the judgment passed by trial Court so far as conviction

of accused No.1 is concerned.

7. Prosecution has placed reliance on direct evidence of

three eye witnesses i.e. Bhagirath (P.W.1), Haribhau (P.W.2) and

Narayan (P.W.3). The circumstantial evidence relied by

prosecution is seizure of blood stained clothes from the accused

No.1 to 3 and seizure of weapons of the offences. Prosecution

has also placed reliance on medical evidence of Dr. R.M. Sharma

(P.W.7), who examined the injured Asaram at Civil Dispensary,

Sailu and evidence of Dr. S.P. Tapse (P.W.9), who performed

autopsy examination of the dead body of Asaram.

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

8. In the case at hand, homicidal death of deceased is

not at all disputed. Otherwise also, Dr. S.P. Tapse (P.W.9), who

performed autopsy examination of dead body of the deceased on

25/10/1999 at Government Medical College, Aurangabad, has

categorically proved the following external injuries on the dead

body :-

(1) Sutured wound over left temporary region, oblique, 9.5 cms. x 1.5 cms., four sutures present, blood clots protruding through fiture gaps of cutting sutures, edges clean-cut, swollen contused, muscle clean-cut, pieces of brain attached to blood clots.

(2) Sutured wound over back of left arm, curved 6.5 cms. long, six sutures present, edges contused swollen.

(3) Abrasion over left elbow posteriori, 1 x 1 Mcs. Reddish

(4) Abrasion over back in middle at the level of T-12, 1 x 1 cms., reddish.

(5) Contusion over left leg anteriorly in middle part, 3 x 2 cms., reddish.

9. Dr. Tapse (P.W.9) has also proved haematoma over

left tempero frontal, tempero parietal and tempero occipital

region of the head of deceased, together with depressed fracture

of skull of left temporal bone of size 6 x 1 cms. He also found

the dura cut was lacerated at fracture size. He opined that,

external injury No.1 with corresponding internal injuries were

sufficient to cause death in ordinary course of the nature and the

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

cause of death of the deceased was shock and haemorrhage due

to fracture of skull. Despite searching cross-examination by

defence counsel, nothing could be brought on record to shake the

opinion of Dr. Tapse (P.W.9) regarding cause of death of the

deceased. On the other hand, the entire cross-examination was

concentrated on the point of type of the external injury and

probable use of the weapon. Nobody assailed the opinion of Dr.

Tapse regarding cause of death due to fracture of skull.

Therefore, the expert evidence of Dr. Tapse is sufficient to hold

that the death of deceased Asaram was homicidal death.

10. Now we proceed to analyze the evidence of

prosecution to ascertain whether prosecution can establish that

with requisite intention in furtherance of their common intention,

accused caused the homicidal death of deceased or not.

11. Bhagirath (P.W.1) deposed before the Court in

consonance with recitals of the F.I.R. (Exh.32) that on the date

of incident, at about 9.30 p.m., he came to know about insult of

his father Asaram by accused who slapped him across his face.

Therefore, to question the accused persons, along with the

deceased and his brother Purushottam, this witness went

towards the residence of accused persons. On way, but near the

house of accused, he saw all the accused persons who were

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

armed with axes an knife. Accused No.1 to 3 rushed upon them

and initially accused No.2 Bharat stabbed deceased Asaram on

his left arm by knife. When his father fell down, thereafter

accused No.1 Ramesh inflicted axe blow by holding it in his both

hands on the left side of the head of Asaram. As Asaram became

unconscious, this witness and his brother Purushottam started

lifting him, and at that time, accused No.3 Raghvendra inflicted

blow of the handle of axe on the back of Bhagirath (P.W.1) and

blow of handle of axe on the left wrist of Purushottam.

Thereafter, villagers Ganesh @ Ganpat and Narayan (P.W.3)

rushed on the spot and separated the quarrel. Evidence of

Bhagirath (P.W.1) is assailed by defence on the ground that he

being related with the deceased and interested, his testimony

cannot be relied upon. However, only because a witness is

nearly related with the deceased, his testimony cannot be

discarded if otherwise it is reliable. Only such testimony shall

pass the test of close scrutiny.

12. After careful examination of evidence of Bhagirath

(P.W.1), it emerges that, though he claimed that due to assault

by accused No.3 Raghvendra he sustained injuries on his back

and his brother Purushottam sustained bleeding injury on his left

wrist and though he claimed that both of them were referred to

Medical Officer, Civil Dispensary, Sailu for medical examination

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

and doctor did not examine them. Dr. Sharma (P.W.7), Medical

Officer, Sailu did not say that Bhagirath (P.W.1) or his brother

Purushottam were referred to him for medical examination. On

the other hand, A.P.I. Tilekar (P.W.10), who is the investigating

officer, nowhere deposes regarding visible or bleeding injury on

the body of Bhagirath (P.W.1) or Purushottam. On the other

hand, Tilekar (P.W.10) admits that he did not collect the medical

certificate of these both important witnesses. Thus, it appears

that, neither Bhagirath nor Purushottam sustained any injury as

claimed by Bhagirath (P.W.1). Learned trial Court held that,

such improvement made by Bhagirath (P.W.1) is material

improvement. However, such type of exaggeration by related

witness is natural. Related witness always tries to add some

embroidery to their basic version. Therefore, only on the ground

of such trifling improvement, the testimony of Bhagirath (P.W.1)

cannot be discarded.

13. However, it cannot be ignored that, in the cross-

examination of Dr. Sharma (P.W.7), defence has brought on

record that on 25/10/1999 at 00.25 a.m., he examined accused

No.1 Ramesh Gajmal and found one contused lacerated wound

on the forehead in centre and one contused lacerated wound on

the scalp in centre, extended up to left tempero parietal region of

the head of accused No.1. Dr. Sharma (P.W.7) also found one

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

contusion on left forearm and another contusion on right palm at

the base of great finger of accused No.1. This witness admits

that, both contused lacerated wounds were bleeding at the time

of examination. Dr. Sharma (P.W.7) has also proved two

contused lacerated wounds on the head of accused No.2 Bharat

and one contusion on left forearm of accused No.2. He also

admits that, both contused lacerated wounds on the head of

accused No.2 Bharat were bleeding at the time of examination.

However, Bhagirath (P.W.1) admits in his cross-examination

that, he did not notice bleeding injuries either on the head of

accused No.1 Ramesh or on the head of accused No.2 Bharat.

Thus, obviously Bhagirath (P.W.1) is suppressing material facts

from the Court and, therefore, he cannot be termed as "truthful

witness". Therefore, it will be highly risky to base the conviction

of the accused on the sole testimony of Bhagirath (P.W.1) though

his testimony before the Court is not in conflict with F.I.R. on

material particulars. In the circumstances, without proper

corroboration, only on the basis of evidence of Bhagirath (P.W.1)

accused cannot be convicted.

14. Prosecution has also examined Hairbhau Gajmal

(P.W.2) as one of the eye witness, who deposed that, on the date

and time of the incident, he noticed quarrel near the house of

Ramkishan Karwa on main road and in his presence accused No.2

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

stabbed deceased Asaram by knife on his left arm and when

Asaram fell on the ground, accused No.1 Ramesh inflicted axe

blow on the left side of head of Asaram. He also repeated same

story that when Bhagirath (P.W.1) and his brother Purushottam

tried to lift injured, that time accused No.3 Raghvendra assaulted

them by handle of the axe. However, name of this so called

important eye witness is neither mentioned in F.I.R. (Exh.32) as

one of the person who separated accused from the injured

Asaram, nor Bhagirath (P.W.1) or Narayan (P.W.3) have

whispered single word regarding presence of Haribhau (P.W.2)

on the spot as helping hand to separate the accused persons

from injured. Thus, presence of Haribhau (P.W.1) on the spot at

the time of occurrence is itself doubtful.

15. Further examination of this witness indicates that,

neither he helped Bhagirath (P.W.1) and his brother to lift the

injured Asaram from the spot nor he helped them to take that

unconscious injured person up to their residence. His oral

testimony before the Court is also in variance with his statement

recorded by Magistrate under Section 164 of the Code of Criminal

Procedure on material particulars. In the statement before

Magistrate (Exh.36), this witness deposed that, after assault by

accused No.1 and 2 to Asaram, Bhagirath (P.W.1) and

Purushottam arrived on the spot and separated the deceased

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

from accused persons. This statement before the Magistrate

falsifies the prosecution case that deceased Asaram along with

Bhagirath (P.W.1) and Purushottam went towards the house of

accused, and on way, the deceased was assaulted by accused

persons. Therefore, the oral testimony of Haribhau (P.W.1) is

obviously not truthful and reliable which can be used as

corroborative piece of evidence to the version of Bhagirath

(P.W.1).

16. The third and last eye witness examined by

prosecution is Narayan Gajmal (P.W.3). Name of this witness is

mentioned in F.I.R. as eye witness, who separated the injured

deceased from the accused persons. However, from his

testimony, it emerges that, his residence is at long distance from

the spot of the incident and, therefore, he is only chance witness

who was passing by the road at the time of occurrence. Though

in his examination-in-chief he fully supported the prosecution

case, the cat has come out of the bag when Narayan (P.W.3) was

subjected to cross-examination. Narayan (P.W.3) has admitted

in his cross-examination that at the time of occurrence, though

he separated the deceased from accused persons, he did not help

while lifting or carrying Asaram to his house and he actually did

not touch the body of Asaram. From his cross-examination, it

emerges that, though he saw the assault to Asaram by knife by

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

accused No.2 Bharat, he did not raise hue and cry and he did not

call anybody for help. This conduct of witness is certainly

abnormal. He admits that, he did not notice bleeding injury on

the head of accused No.1 Ramesh and accused No.2 Bharat, and

he did not notice any blood stains on the clothes of these

accused. However, as observed above, Dr. Sharma (P.W.7) has

falsified the version of this witness, by deposing that two injuries

on the head of accused No.1 and 2 were bleeding at the time of

medical examination at midnight on the date of occurrence.

Thus, it appears that, this witness is also trying to suppress real

occurrence from the Court as to how accused No.1 and 2

sustained bleeding injuries on their head at the time of

occurrence of the incident. Another important admission of

Narayan (P.W.3) is that, though he witnessed the actual

commission of murder of Asaram at the hands of accused

persons, he did not tell anybody about this occurrence till his

statement was recorded by police. He also admits that, his

statement was recorded by police on 28/10/1999 i.e. after 4

days from the date of occurrence of the incident. Keeping mum

by this witness for the period of 4 days though he was eye

witness of the occurrence, creates doubt regarding his presence

at the time of occurrence. Therefore, we find that, learned trial

Court rightly disbelieved the testimony of Narayan (P.W.3).

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

17. Learned defence counsel placed reliance on the case

of Babu Ram V/s State of Punjab, reported in (AIR 2008 SC

1260), in which the Hon'ble Supreme Court observed in para

No.18 as under :

"18. It is a well-settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :-

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

18. In the light of settled principles of law by Apex Court

in cited authority, if the evidence of above discussed witnesses is

considered, it becomes clear that, prosecution has conveniently

suppressed the genesis of the occurrence as to how the deceased

and his two sons reached on the spot and how at the time of

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

occurrence Ramesh accused No.1 and Bharat accused No.2

sustained injuries on their head. On account of suppression of

the genesis of the occurrence, the learned trial Court has rightly

accepted the probability of the defence taken by accused persons

that accused Bhagirath, his brother Purushottam and deceased

attacked the accused persons, that time accused No.1 Ramesh

might have revolved axe in his hand in exercise of right of self

protection and that time the axe might have hit on left side of

the head of Asaram. However, causing grave injury on the head

of Asaram by axe by accused No.1 Ramesh, which resulted into

fracture of his skull and internal haematoma which was sufficient

to cause death in ordinary course of nature, indicates that,

accused No.1 had intention to kill Asaram at the time of inflicting

the blow of axe, though in exercise of right of self protection. At

least such probability cannot be ruled out in view of suppression

of genesis of the occurrence by the prosecution. Thus, inference

can be drawn that accused No.1 Ramesh caused homicidal death

of Asaram in exercise of right of private defence.

19. However, at the same time, it cannot be ignored that,

from the cross-examination of Dr. Sharma (P.W.7), it also

emerges that, the injuries sustained by accused No.1 and 2 were

probably caused by hard and blunt object, and nature of injuries

were simple. In the cross-examination of Dr. Sharma (P.W.7),

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

defence has not brought on record that the injuries on the head

of accused No.1 and 2 were possible by butt of the axe as

contended by accused persons in the written statement (Exh.74),

submitted under Section 313 of the Code of Criminal Procedure.

Therefore, only one probability can be accepted that Bhagirath,

Purushottam and Asaram attacked accused persons and inflicted

stick blows. That time accused No.1 might have used axe as

weapon for self protection. The use of such deadly weapon,

when the accused No.1 was attacked by weapon like stick, is

sufficient to hold that, accused No.1 Ramesh had exceeded the

right of private defence at the time of occurrence. Therefore, at

the most prosecution can establish commission of the offence by

accused No.1, punishable under Section 304 Part I of the I.P.C.

20. After going through the cross-examination of Dr.

Sharma (P.W.7) and Dr. Tapse (P.W.9), it emerges that, hue and

cry has been raised by learned defence counsel on the ground

that, regarding injury No.1, Dr. Sharma (P.W.7) opined that it

was contused lacerated wound. On the other hand, according to

Dr. Tapse, that injury was incised wound. However, it cannot be

ignored that, Dr. Tapse (P.W.9) examined the wound when it was

already sutured by Dr. Sharma (P.W.7) in Civil Dispensary at

Sailu when injured was brought to his hospital immediately after

the occurrence. The injuries sustained by Asaram were also

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

handled and treated by Dr. Rathod even at Civil Hospital,

Parbhani. Same sutured wound was opened by Dr. Tapse

(P.W.9) at the time of post mortem examination. Thus,

obviously, opinion of Dr. Tapse (P.W.9) that injury No.1 shown

on the body of deceased was incised wound, will not prevail over

the opinion of Dr. Sharma (P.W.7). Otherwise also, much

importance cannot be given to these conflicting opinions for the

simple reason that both experts are constant regarding their

opinion that injury No.1 is possible due to axe.

21. So also, version of Dr. Tapse (P.W.9) that injuries

found on the body of accused No.1 and 2 might be self inflicted,

does not carry any importance for the simple reason that he was

not expert who personally examined accused No.1 and 2

immediately after the occurrence of the incident. In fact, he

expressed such opinion on the basis of injury certificates of

accused No.1 and 2. On the other hand, Dr. Sharma (P.W.7),

who examined accused persons, is the proper expert witness who

can opine regarding the nature of injuries sustained by accused

No.1 and 2. Prosecution did not take pains to bring on record

through Dr. Sharma (P.W.7) that the injuries found on the body

of accused No.1 and 2 were probably self inflicted. Therefore,

the opinion given by Dr. Tapse (P.W.9) regarding possibility of

self infliction of injuries by accused No.1 and 2 deserves to be

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

ignored.

22. Accordingly, our conclusion is that, conviction of the

accused No.1 Ramesh for the offence punishable under Section

304 Part I of the Indian Penal Code is proper and needs no

interference. Learned defence counsel placed reliance on the

case of Kuldeep Singh Vs. State of Haryana reported in (AIR

1996 SC 2988) and submitted that, as accused No.1 has

already undergone one year imprisonment till conclusion of the

trial, the sentence imposed by trial Court needs to be reduced up

to one year already undergone by accused No.1. However, this

submission cannot be accepted for the simple reason that, in

above cited authority, in the peculiar facts and circumstances,

sentence was reduced by Apex Court and, therefore, such

observations cannot be treated as precedent which is binding to

this Court. On the other hand, in the present case, 65 years old

person was killed at the hands of accused No.1 by use of deadly

weapon like axe. Therefore, the sentence of imprisonment of

rigorous imprisonment for five years and fine of Rs.2000/-

imposed by learned trial Court is just and proper and needs no

interference.

23. So also, regarding acquittal of accused No.2 and 3, it

is suffice to say that, from the cross-examination of Dr. Sharma

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

(P.W.7) and Dr. Tapse (P.W.9), it emerges that, injury on the left

arm of deceased was not possible by the knife seized from the

possession of accused No.2 Bharat. So also, version of

prosecution witnesses regarding causing injury by accused No.3

Purushottam is not acceptable as it is not supported by any

medical evidence. In the circumstances, the view taken by

learned trial Court while acquitting the accused No.2 and 3 of the

offences punishable under Sections 326, 323 read with Section

34 of the I.P.C. as well as under Section 302 read with Section

34 of the I.P.C. is probable view and cannot be interfered in this

appeal.

24. Accordingly, our conclusion is that, the conviction and

sentence imposed by learned trial Court against accused No.1

Ramesh for the offence punishable under Section 304 Part I of

the I.P.C. as well as acquittal of accused No.2 and 3 of the

offence punishable under Sections 302, 326, 323 read with

Section 34 of the I.P.C. is proper and needs no interference. It

follows that, Appeal filed by accused No.1 Ramesh as well as

appeal filed by the State against acquittal of accused No.2 and 3

deserve to be dismissed. Hence, the following order :

ORDER

(i) Criminal Appeal No.451/2000 and Criminal Appeal

Criminal Appeal No.451/2000 with Cri.Appeal No.13/2001

No.13/2001 are dismissed.

(ii) Accused No.1 Ramesh Raghvendra Gajmal shall

surrender to his bail bonds immediately before the trial

Court to undergo the punishment.

(iii) Under Section 437-A of the Code of Criminal Procedure,

accused No.2 Bharat Raghvendra Gajmal and accused

No.3 Raghvendra Nanasaheb Gajmal shall execute

before the trial Court bail bonds with sureties for the

amount of Rs.10,000/- (Rupees ten thousand) each to

appear before the Supreme Court as and when notices

are issued to them in respect of any proceedings filed

against this judgment and the said bail bonds shall

remain in force for a period of six months from today.

          (SUNIL K. KOTWAL)                        (T.V. NALAWADE)
              JUDGE                                      JUDGE



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