Bombay High Court
Sambhaji S/O Sakharam Gagalwad ... vs The State Of Maharashtra on 22 June, 2017
Bench: V.L. Achliya
1 Cr.Appeal 944.2015 - [J]
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
.............................
2 Cr.Appeal 944.2015 - [J]
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
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as to why he has not withdrawn the case.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
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
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
6 Cr.Appeal 944.2015 - [J]
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
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
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
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
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
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
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
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
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.
15 Cr.Appeal 944.2015 - [J]
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.
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
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].
17. If we consider the testimony of Shivaji [P.W.
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.
19 Cr.Appeal 944.2015 - [J]
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
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
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
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
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
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
25 Cr.Appeal 944.2015 - [J]
[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
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 ;
27 Cr.Appeal 944.2015 - [J]
[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
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
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.
30 Cr.Appeal 944.2015 - [J]
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
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.
32 Cr.Appeal 944.2015 - [J]
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.
33 Cr.Appeal 944.2015 - [J]
[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.
34 Cr.Appeal 944.2015 - [J]
[vii] Criminal Appeal stands disposed of in above
terms.
[V.L.ACHLIYA, J.]
KNP/Cr.Appeal 944.2015 - [J]
