Punjab Hiraman Adhau And 2 Others vs State Of Maharashtra
2017 Latest Caselaw 2869 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                          CRIMINAL APPEAL NO. 150 OF 2000


 1.       Punjab Hiraman Adhau,
          aged about - 28 years, 

 2.       Mahadeo Bhivaji Adhau,
          Aged 34 years, 

 3.       Pralhad Bhivaji Adhav,
          Aged 27 years, 

          All doing private business of 
          Band Party, R/o. Matangpura
          Akot, Tq. Akot, Akola. 
                                                                           ....  APPELLANTS.

                                        //  VERSUS //


 State of Maharashtra, 
 Through P.S.O. Akot and 
 Through the office of 
 Govt. Pleader, High Court,
 Nagpur. 
                                                    .... RESPONDENT
                                                                     .
 ___________________________________________________________________
 Shri A.B.Mirza, Advocate for Appellants. 
 Shri A.D.Sonak, A.P.P. for the respondent. 
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : JUNE 07, 2017.

ORAL JUDGMENT :

1. The appellants have challenged the judgment passed by the

Sessions Court convicting the appellant No.1(accused No.1) for the offence

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punishable under Section 324 of the Indian Penal Code and sentencing him

to undergo rigorous imprisonment for two years and to pay fine of Rs.Five

Thousand and in default of payment of fine to undergo rigorous

imprisonment for six months, and convicting the appellant No.2 (accused

No.5) and appellant No.3( accused No.6) for the offence punishable under

Section 323 read with Section 34 of the Indian Penal Code and sentencing

them to undergo simple imprisonment for one month each and to pay fine of

Rs.One Thousand each and in default of payment of fine to undergo rigorous

imprisonment for ten days each.

2. The case of the prosecution is :

On 13th March, 1998 at about 9.00 a.m. the accused Nos. 1 and

2 had come to the house of the complainant and threatened him asking him

why he had submitted the application against them to the Municipal Council,

Akot. Later, the complainant had gone to the house of Gajanan Dandge along

with Dadarao Gavai at 1.30 p.m. and demanded Rs.100/- which amount was

to be received by them from Gajanan Dangde in lieu of the wrist watch.

Gajanan Dandge showed inability to pay the amount and then Balu

(complainant) and Dadarao started towards house of Dadarao and when

they came near Alichpur West road, the accused emerged from the bushes

and assaulted them by pelting stones. According to the prosecution, father of

Gajanan intervened and separated them and then Balu and Dadarao

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proceeded towards the house of Dadarao, the accused No.1 threatened them,

the accused went towards Barde Plots and then returned armed with knives,

stones and sticks. According to the prosecution, accused No.1 was armed

with knife and he assaulted Balu causing injury on right side of stomach.

On receiving the complaint, the investigation was conducted

and after completing the necessary formalities, the chargesheet for the

offence punishable under Section 307 of the Indian Penal Code was filed

before the Judicial Magistrate First Class. As the offence punishable under

Section 307 of the Indian Penal Code is exclusively triable by the Court of

Sessions, the case was committed to the Sessions Court which framed

charges for the offences punishable under Sections 147, 148, 307 read with

Section 149 of the Indian Penal Code. The charges were explained to the

accused and as they did not accept the guilt, trial was conducted.

3. The Sessions Court has recorded that the prosecution has

succeeded in proving that the accused No.1 committed offence punishable

under Section 324 of the Indian Penal Code and the accused Nos. 5 and 6

committed offence punishable under Section 323 of the Indian Penal Code.

The Sessions Court recorded that the prosecution has failed to prove the

other charges and involvement of other four accused in the crime.

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4. After hearing the learned advocate for the appellant and the

learned A.P.P. and examining the record I find that the conclusions of the

learned Additional Sessions Judge that the prosecution has proved that the

accused Nos. 5 and 6 have committed offence punishable under Section 323

of the Indian Penal Code are liable to be punished, are unsustainable.

Balu-Complainant (P.W.1) has not deposed that he sustained

injuries because of stones pelted at him by the accused Nos. 5 and 6. Except

for deposition of Kishore (P.W.3) there is nothing on record to show that the

accused Nos. 5 and 6 were present on the spot when the incident took place.

P.W. 3 has deposed that the accused Nos. 5 and 6 had beaten Balu by stone

on his head. In the statement of Kishore recorded by the police this

accusation is not found. I find that the learned Additional Sessions Judge has

not appreciated the evidence in the right perspective and the conviction of

the accused Nos. 5 and 6 is unsustaianble.

5. The evidence of Balu-complainant on the point of stabbing by

accused No.1 is reliable and the defence has not been able to bring anything

on record in the cross-examination of this witness because of which the

testimony of this witness on this point cannot be doubted. Dadarao (P.W. 2)

has also deposed that accused No.1 stabbed Balu by knife on his stomach and

though this witness is cross-examined at length his testimony on this point is

not shattered. Kishore (P.W. 3 ) has deposed that accused No.1 stabbed Balu

Judgment 5 apea150.00.odt

by knife on his stomach and again in the cross-examination on behalf of the

accused nothing is brought because of which this part of the evidence of this

witness can be disbelieved. Medical Officer-Bhagyashree (P.W.14) has

proved the nature of injury suffered by Balu and has opined that the injury is

possible by a sharp weapon. The Chemical Analyzer's report (Exh.79) shows

that the blood found on the knife was of "O" group and blood group of Balu

(complainant) and blood group of accused No.1 is also "O".

I find that the learned Additional Sessions Judge has properly

appreciated the evidence and has rightly concluded that the accused No.1

stabbed Balu by knife and has committed an offence punishable under

Section 324 of the Indian Penal Code. As I find that the conclusions of the

learned Additional Sessions Judge are proper and cannot be faulted with, I

see no reason to interfere with the sentence inflicted by the impugned

judgment on the accused No.1.

6. In view of the above, following order is passed:

i) The judgment passed by the Sessions Court convicting the

appellant No.2(accused No.5) and appellant No.3(accused

No.6) is set aside.

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                    ii)      The   accused   Nos.   5   and   6   are   acquitted   of   the   offence

punishable under Section 323 and Section 34 of the Indian

Penal Code.

iii) Bail bonds of the accused Nos. 5 and 6 stand cancelled.

iv) The conviction of the appellant No.1 (accused No.1) for the

offence punishable under Section 324 of the Indian Penal Code

is maintained and the sentence imposed by the learned

Additional Sessions Judge directing the accused No.1 to

undergo rigorous imprisonment for two years and to pay fine of

Rs.Five Thousand/- and in default of payment of fine to

undergo rigorous imprisonment for six months is also

maintained.

The appeal of the appellant No.1 (accused No.1) is dismissed.

v) The Muddemal Property be dealt with as per the directions of

the learned Additional Sessions Judge after the period of

appeal is over.

JUDGE RRaut..