Ramchandra Vitthal Jankar & Ors vs The State Of Maharashtra
2017 Latest Caselaw 2435 Bom

                                                                          apeal.803.98.240.doc


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION
                           CRIMINAL APPEAL NO. 803 OF 1998

            1. Ramchandra Vitthal Jankar,
               Age 19 years, Occ. Labourer

            2. Anil Vitthal Jankar,
               Age 21 years, Occ. Labourer,

            3. Sadashiv Bhagoji Lambore,
               Age 21 years, Occ. Labourer,

             All residents of Kapoor Vasahat,                   ...Appellants
             Kadamwadi, Kolhapur.                              (Orig.Accused)

                      Versus

            The State of Maharashtra                            ...Respondent


            Mr. Shekhar A. Ingawale for the Appellant

            Mrs. P. P. Shinde for the Respondent-State

                                            CORAM : REVATI MOHITE DERE, J.

TUESDAY, 9th MAY, 2017

ORAL JUDGMENT :

1. Heard learned Counsel for the appellant and the learned A.P.P

for the State.

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                                                                           apeal.803.98.240.doc

2. By this appeal, the appellants have impugned the judgment and

order dated 8th October, 1998 passed by the 3rd Additional Sessions Judge,

Kolhapur in Sessions Case No. 140 of 1997, convicting them for the

offences punishable under Section 307 r/w 34 and Section 323 r/w 34 of

the Indian Penal Code (`IPC').

3. Without going into the merits, the only submission of the

learned Counsel for the appellants is that taking the prosecution case as it

stands, no offence under Section 307 is disclosed qua any of the appellants.

He submitted that the offence, if any, would be one under Section 324 r/w

34 of the IPC.

4. A few facts as are relevant for deciding the appeal are as

under :

Two incidents took place at Village Kadamwadi on 31 st May,

1997; one at about 11:15 p.m. and the second about 11:45 p.m. The

informant is PW 4-Ramchandra Vitthal Edge. He has stated that his

brother Subhash Edge (PW 7) was in love with the appellant Nos. 1 and 2's

sister Sarika. He has stated that the families of both, the appellants as well

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as the complainant were aware about their love affair and had decided to

solemnize their marriage. He has stated that 8 days prior to the incident

dated 31st May, 1997, there were talks regarding the marriage of Sarika

with Subhash Edge (PW 7) and that the parents of both were present in the

said meeting. He has stated that in the meeting, they demanded a gold

chain of one tola, one cot and clothes from Sarika's father i.e. appellant

Nos. 1 and 2's father. He has stated that they too had offered to give Sarika

2 tolas of gold and clothes. According to the complainant, Sarika's father

wanted Sarika's marriage to be performed with Subhash in the same

pandal, in which his son's marriage was to be performed. The complainant

has further stated, that Sarika's father had disclosed to his father that he

would not be able to satisfy their demands and hence, things fizzled out.

5. According to the complainant, on 31st May, 1997 at about

11:15 p.m., Subhash Edge (PW 7) went out and returned back within a few

minutes, and disclosed that he had been assaulted by appellant No. 2-Anil

Jankar with a knife on his right hand. Pursuant thereto, the complainant i.e.

PW 4-Ramchandra Edge, PW 7- Subhash Edge, PW 8-Anil Edge and

others went towards the house of the appellants to question them about the

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said incident. It is alleged that when they reached near the appellants'

house, all the appellants were present there; that appellant No.2-Anil Jankar

was armed with a sword; appellant No.1-Ramchandra Jankar, with a knife

and appellant No.3-Sadashiv Lambore, with a stick. He has stated that

appellant No.2-Anil Jankar assaulted Anil Edge (PW 8) with a sword on his

chest and back. Thereafter, appellant No.1-Ramchandra Jankar is alleged

to have assaulted Subhash Edge (PW 7) with a knife on his stomach and

appellant No.3-Sadashiv Lambore is alleged to have assaulted the

complainant-Ramchandra Edge (PW 4) on his head. It is alleged that after

hearing hue and cry, people gathered at the spot and the injured were taken

to the hospital. According to the complainant, the injured i.e. Subhash

Edge and Anil Edge were in an unconscious condition and that Subhash

Edge (PW 7) was required to be operated.

6. The evidence of PW 7-Subhash Edge and PW 8-Anil Edge is

more or less similar. PW 7-Subhash Edge has stated that he was assaulted

by Anil Jankar (appellant No.2) in the first incident, which took place on

31st May, 1997 at 11:15 p.m. He has further stated that thereafter the

second incident took place at about 11:45 p.m., in which, all the accused

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assaulted them with sword, knife and stick.

7. In order to prove the injuries of the injured, the prosecution

examined PW 9-Dr. Trimbak Mane, Medical Officer, C.P.R Hospital,

Kolhapur. Dr. Mane has stated that on 1 st June, 1997, he was on duty at the

said Hospital, when Anil Edge (PW 8) and Subhash Edge (PW 7) were

admitted to the said Hospital. He has stated that he examined Anil Edge

and found two injuries on his person; one stab wound over the left lion

lateral aspect and an incised wound over the chest near the right nipple.

The second injury is stated to be a simple injury. As far as the injuries of

Anil Edge are concerned, PW 9-Dr. Mane has not stated that the first injury

caused to Anil Edge, was sufficient, in the ordinary course of nature, to

cause death. As far as PW 7-Subhash's injury is concerned, Dr. Mane

found one injury on his person i.e. stab wound over the left lumbar region.

Dr. Mane has stated that when Subhash was admitted to the Hospital, he

was conscious and that he was subsequently operated by J. K. Banchode, V.

N. Magdum and Dr. Z. R. Patil. PW 9-Dr. Mane has admitted that he was

not in a position to state whether there was any internal injury caused due

to the said stab wound. It is pertinent to note, that none of these doctors i.e.

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Dr. Banchode, Dr. Magdum and Dr. Patil have been examined by the

prosecution to show the seriousness of the injury caused, nor any medical

case papers are placed on record to show, for how many days Subhash

Edge (PW 7) was in the hospital and the treatment meted out to him. As far

as PW 4-Ramchandra Edge is concerned, PW 9-Dr. Mane found one minor

abrasion over the head. The said injury is stated to be a simple injury.

8. According to the witnesses, in the first incident that took place

on 31st May, 1997, at 11:15 p.m., Subhash Edge was assaulted by Anil

Jankar on his hand, as a result of which, he sustained a bleeding injury.

Admittedly, no injury has been found on the hand/palm of Subhash Edge

(PW 7). Except for the evidence of witnesses, no injury certificate is

placed on record nor any medical evidence is adduced, which would lead

credence to the ocular evidence. PW 9-Dr. Mane also does not speak about

any injury having been caused to Subhash Edge on his palm/hand, as

alleged. It thus appears that the genesis of the incident has been suppressed

by the prosecution. However, there is no reason to disbelieve the evidence

of the complainant and eye-witnesses that they were assaulted by the

appellants. The only question is what is the offence alleged to have been

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committed by the appellants.

9. No motive has come on record to show the reason for the

appellants to cause the death of the complainant and others. No

independent witnesses have been examined by the prosecution, though they

were present at the time of the incident. Admittedly, even appellant Nos. 2

and 3 have sustained injuries on their hand and that the same is reflected in

the evidence of PW 6-Ayaz Fakir, panch to the arrest panchanama and the

evidence of the Investigating Officer. Admittedly, no medical case papers

of Subhash Edge (PW 7) are placed on record or any doctors examined

who allegedly operated Subhash, to show the nature and seriousness of the

injury caused to him.

10. Considering the peculiar facts of this case and medical

evidence that has come on record, the conviction of the appellants for the

offence under Section 307 of the IPC, cannot be maintained. The

ingredients of Section 307 are amiss in the facts of this case. However, in

the facts, the appellants would be guilty under Section 324 of the IPC.

Accordingly, following order is passed :

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                                                                               apeal.803.98.240.doc


                                                  ORDER

                     (i)            The appeal is partly allowed.



                     (ii)           The order of conviction under Section 307 r/w 34 of the

IPC is set-aside and instead, the appellants are convicted for the

offence punishable under Section 324 r/w 34 of the IPC and are

sentenced to suffer imprisonment already undergone and are

directed to pay fine of Rs. 1,000/- each, in default, to suffer SI for

three months.

(iii) As far as the conviction under Section 323 of the IPC is

concerned, the same is maintained and the appellants are sentenced

to suffer imprisonment already undergone.

11. Appeal is disposed of on the aforesaid terms.

12. All concerned to act on the authenticated copy of this order.

REVATI MOHITE DERE, J.

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