Balu Eknath Bansode vs The State Of Maharashtra
2017 Latest Caselaw 8665 Bom

                                                         Cri.Appeal No.574/2002
                                       1

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

                        CRIMINAL APPEAL NO. 574 OF 2002

Balu s/o Eknath Bansode,
Age 35 years, Occu. Agril.,
R/o Maliwadi, Taluka Shrirampur,
District Ahmednagar                                            ..Appellant

        Versus

The State of Maharashtra                                       ..Respondent

Mr V.R. Dhorde, Advocate for appellant
Mr S.J. Salgare, A.P.P. for respondent

                                   - WITH -

                         CRIMINAL APPEAL NO. 138 OF 2003

The State of Maharashtra                                       ..Appellant

        Versus

1.      Balu Eknath Bansode,
        Age 35 years, Occu. Driver,
        R/o Maliwadi, Taluka Shrirampur,
        District Ahmednagar

2.      Ramnath @ Ramdas s/o Chandrabhan
        Take, Age 40 years, Occu. Agri.,
        R/o Akoli-Wadgaon, Taluka Gangapur,
        District Aurangabad

3.      Zumberbai w/o Eknath Bansode,
        Age 50 years, Occu. and r/o as above

4.      Hirabai w/o Balu Bansode,
        Age 30 years, Occu. Labourer,
        R/o Maliwadi, Taluka Shrirampur,
        District Ahmednagar                                    ..Respondents

Mr S.J. Salgare, A.P.P. for appellant
Mr V.R. Dhorde, Advocate for respondents no.1 to 4


                                     CORAM : T.V. NALAWADE AND
                                             A.M. DHAVALE, JJ

                                      DATE OF RESERVING
                                      THE JUDGMENT : 3.11.2017




::: Uploaded on - 14/11/2017                   ::: Downloaded on - 15/11/2017 02:07:21 :::
                                                                Cri.Appeal No.574/2002
                                             2

                                         DATE OF PRONOUNCING
                                         THE JUDGMENT : 14.11.2017

JUDGMENT (Per A.M. Dhavale, J.)

1. In Sessions Case No.142/1995, by judgment dated 25.9.2002,

the learned Ist Ad hoc Additional Sessions Judge, Aurangabad

acquitted all the four accused of offences punishable under Section

302 read with Sec.34 of Indian Penal Code, but convicted and

sentenced accused no.1 Balu as follows :

  Offence u/s            Substantive              Fine              In default
                         Sentence                                       R.I.
      324 IPC            R.I.  for     two       Rs.500/-          One month
                         years
     506 (2) IPC         R.I. for one year       Rs.300/-          15 days

2. The aggrieved accused no.1 Balu has preferred Criminal Appeal

No.574 of 2002, whereas the State has preferred Criminal Appeal

No.138 of 2003 challenging the order of acquittal of all the accused.

Since there is a common judgment, common arguments are heard

and the appeals are being disposed of by this common judgment.

3. The prosecution was initiated on the basis of F.I.R. lodged by

Gangubai wife of deceased Raosaheb on 1.3.1995 at 22.35 Hrs. at

Sillegaon police station, Taluka and District Aurangabad. The crime

was registered at C.R. No.14/1995 under Sections 302, 504, 506 read

with Sec.34 of Indian Penal Code and was investigated into by P.W.8

Police Inspector Mr Bhosale.

4. As per the investigation and evidence on record, it is not in

dispute that deceased Raosaheb aged about 60 years was uncle of

Cri.Appeal No.574/2002

accused no.1 Balu. Accused no.2 Ramnath is maternal uncle,

accused no.3 Zumberbai is mother of accused no.1 and accused no.4

Hirabai is wife of accused no.1 Balu. It is also not in dispute that both

the accused as well as the deceased were residing in a field known as

'Limbacha mala' at village Akoli-Wadgaon. They were having their

separate agricultural lands with separate farm houses, but they were

having one common well and they were sharing the water of the well

on the basis of daily use. Accused no.1 was entitled to use the water

one day and night on Tuesday, while the deceased was entitled to use

the well water one day/night after the turn of the accused. It is

disputed at what time the term of the deceased was to begin. There

seems to be no prior disputes. On 28.2.1995, at about 6.00 p.m.,

deceased Raosaheb switched off the electric motor and thereby

stopped the water supply to the field of the accused. It led to the

quarrel.

5. As per F.I.R., when the deceased Raosaheb switched off the

electric motor, accused no.1 Balu came to the house of the deceased

and challenged him to come out and threatened to kill him.

Thereafter, he brought one axe, abused the deceased and gave an

axe blow on his skull. Raosaheb sustained injury and he sat down due

to giddiness. It was time of 9.00 p.m. Raosaheb went to the village,

narrated the incident to the Police Patil and he was followed by

accused no.1. Balu. After sometime, P.W.1 Balu, accused no.2 - his

maternal uncle Ramnath (accused no.3 - Zumberbai's brother) came

to the house of Raosaheb. Ramnath was having a stick. Accused no.3

Zumberbai and accused no.4 Hirabai also come there. As Raosaheb

Cri.Appeal No.574/2002

was not at home, they started proceeding towards the village. When

he saw P.W.1 Gangubai in front of her house, accused no.1 Balu

abused her and inflicted blow of axe on her skull and thereafter went

to the village. After sometime, P.W.1 Gangubai heard shouts of her

husband as 'Melo re.. mala dharare'. P.W.1 Gangubai pressed her

injury and went towards pir. Her husband was lying there with

profuse bleeding. All the accused were present there and were

shouting as 'Dhara' (caught hold), 'Hatpai toda' (cut off hands and

legs). It is stated that accused no.2 Ramnath was saying that they

were lucky to find deceased Raosaheb on the way. Accused nos.3 and

4 threatened to kill him and stated that they would hold him and

accused nos.1 and 2 should kill him. On arrival of P.W.1 Gangubai, all

the accused fled away. Then Gangubai's grandson Vikas also came

there. Both of them brought Raosaheb to their house. Raosaheb was

unconscious. He was first carried in a bullock-cart to Dr. Pawre at

Mahagaon, but he referred him to the civil hospital at Aurangabad and

provided his car for transport. Raosaheb was taken to Civil Hospital,

Aurangabad. On the next day, at about 4.00 p.m., P.W.1 Gangubai

came to the civil hospital. She learnt that her husband was dead.

The incident was witnessed by her son P.W.2 Ramnath, daughter-in-

law Mangal and grandson Vikas.

6. The crime was registered on the basis of F.I.R. at C.R.

No.14/1995 under Sections 302, 504, 506 read with Sec.34 of Indian

Penal Code and was investigated into. The medical evidence

disclosed that deceased Raosaheb had sustained one contused

lacerated wound on right parietal region of size 3" x 1/2" to skull

Cri.Appeal No.574/2002

deep, two contusions on right occipital region and four more injuries,

two contusions and two abrasions. Injury no.1 contused lacerated

wound on the skull was found to be fatal. The Investigating Officer

collected medical certificate of P.W.1 Gangubai. He drew inquest

panchnama, spot panchnama and seized one axe from the house of

the accused. He recorded statements of material witnesses. He

seized blood stained clothes of accused nos.1 and 2 and one stick

recovered at the instance of accused no.2. The seized articles were

sent for chemical analysis and blood stains were found on the clothes

of accused no.1 Balu, but not on the axe. After completion of

investigation, the charge-sheet was submitted in the Court of Judicial

Magistrate.

7. In due course, the case was committed to the Court of Sessions.

The learned Additional Sessions Judge, Aurangabad framed charge

against all the accused. The accused pleaded not guilty.

8. The prosecution examined eight witnesses. It is defence of the

accused that deceased Raosaheb and P.W.1 Gangubai had a quarrel

with accused no.3 Zumberbai and they had assaulted her and while

P.W.1 Gangubai was assaulting Zumberbai, she accidentally gave axe

blow to deceased Raosaheb which resulted into his death. On the

basis of F.I.R. lodged by Zumberbai, P.W.1 Gangubai, P.W. 2 Ramnath

and other family members were prosecuted. (submissions at the bar

disclose that there was conviction by the trial Court, which was set

aside and accused were acquitted by a Single Judge of this Court ).

Cri.Appeal No.574/2002

9. Heard learned Advocate Mr V.R. Dhorde for the appellant in

Criminal Appeal No.574 of 2002 and for respondents in Criminal

Appeal No.138 of 2003 and learned A.P.P. Mr S.J. Salgare for the State.

Mr Dhorde has submitted that P.W.2 - Ramnath had not intervened

nor even accompanied his parents to the hospital. The two other eye

witnesses P.W.4 Waman and P.W.5 Kisan have not supported the

prosecution and with the permission of the Court they were cross-

examined by learned A.P.P. He submitted that the evidence on record

shows that the incident took place at late night after 9.00 p.m. There

was no electricity on the spot. The evidence of P.W.1 Gangubai is not

sufficient, as it is not reliable and trustworthy. Her evidence is not

consistent with her F.I.R. There is delay of twenty four hours in

lodging the F.I.R. No blood was found on the axe. The prosecution

witnesses have suppressed the genesis. There is no explanation

given to the injuries sustained by Zumberbai. Therefore, the

conviction of accused no.1 Balu under Section 324 of Indian Penal

Code for causing injuries to deceased Raosaheb and P.W.1 Gangubai

is not sustainable. Hence, the appeal of the accused should be

allowed and conviction should be set aside. He relied on:

1) Thulia Kali Vs. The State of Tamil Nadu, (1972) 3 SCC

393 on the point of delay in F.I.R.

2) Golbar Hussain and ors., Vs. State of Assam and anr.,

(2015) 11 SCC 242 on the point that when the trial Court has

acquitted the accused on the ground of contradiction in the evidence

of witnesses and absence of independent corroboration, the appellate

Cri.Appeal No.574/2002

Court cannot interfere if the view taken by the trial Court is a

reasonable and probable view.

3) Hem Raj and anr. Vs. State of Punjab, (2003) 12 SCC 241

on the point that when the prosecution witnesses are stating about

the injuries, which are not disclosed in the F.I.R. and when they were

not explaining the injuries sustained by the accused even if minor, it

affects the credibility of the witnesses.

10. Per contra, learned A.P.P. Mr Salgare has argued that there is

cogent and consistent evidence of P.W.1 Gangubai, partly supported

by P.W.2, P.W.4 and P.W.5 and medical evidence to show that

accused no.1 Balu had inflicted blows of axe on the skull of deceased

Raosaheb as well as P.W.1 Gangubai. P.W.1 Gangubai is injured

witness and her presence on the spot cannot be disputed. The

accused are closely related to prosecution witnesses and, therefore,

the identification even at the darkness is not suspicious. Clothes of

the accused no.1 - Balu were having stains of blood. Therefore, the

evidence shows that accused no.1 Balu has inflicted injuries by deadly

weapon axe on the vital part skull which has resulted into death of

Raosaheb. There is sufficient evidence to convict accused no.1 under

Section 302 of Indian Penal Code. There is also evidence against

accused nos.2 to 4 showing their involvement in the crime. Hence, all

the accused should be convicted and the appeal filed by accused no.1

should be dismissed.

11. The points for our consideration with our findings are as follows :

Cri.Appeal No.574/2002

(I) Whether deceased Raosaheb met with homicidal death ? .. In the affirmative

(II) Whether accused nos.1 to 4 in furtherance of their common intention committed murder of Raosaheb ? .. Not proved

(III) Whether accused nos.1 to 4 in furtherance of their common intention attempted to commit murder of P.W.1 Gangubai or voluntarily caused hurt by deadly weapon to her ? .. Offence under Sec.

                                                    324 of I.P.C. proved
                                                    only against
                                                    accused no.1


(IV)    Whether accused nos.1 to 4 in
        furtherance of their common
        intention criminally intimidated
        P.W.1 Gangubai or her husband?      ..      Not proved


(V)     What order ?                        ..      The appeal filed by
                                                    the State (Criminal
                                                    Appeal No.138 of
                                                    2003 is dismissed.
                                                    The Criminal Appeal
                                                    No.574 of 2002 filed
                                                    by the accused no.1
                                                    Balu is partly allowed
                                                    as per final order.





                                                                Cri.Appeal No.574/2002


                                       - REASONS -



12.     Point No.1 :           Evidence of P.W.3 Dr. Anil Jinturkar who has

conducted post mortem shows that the deceased had sustained

following injuries :

(1) An obliquely placed contused lacerated wound

over right parietal region at vertex, 3 x ½ inches x skull

deep. i.e. upto periosteum, margins were irregular,

beveling seen on lateral part of the wound.

(2) Two irregular dark reddish contusions over right

occipital region, located side by side, admeasuring ½ x ¼

inch

(3) An oblique dark reddish contusion over dorsal of

left index finger, 1 x ½ inch.

(4) An oblique contusion over anterio-lateral aspect of

middle right thigh, 1/3rd right thigh, 2½ x ½ inches.

(5) An irregular dark reddish abrasion over anterio-

lateral aspect of left knee.

(6) An oval dark reddish abrasion over medial aspect

of right knee, 1 ½ x 1 inches.

All the injuries were ante-mortem and injury no.1 has caused

internal damage to the brain and intra-cerebral-hemorrhage of right

cerebral hemisphere. There was evidence of contusion at right

parietal lobe, at top, 1.5 inch x 0.5 inch, flattering of cortical-surfaces,

Cri.Appeal No.574/2002

within obliterations of sulci and gyri, suggestive of cerebral oedema.

There was evidence of patecheal-hemorrhage in cerebellum. It is not

disputed that after the incident, deceased Raosaheb has became

unconscious and on the next day he died in the hospital. It is obvious

that Raosaheb has met with a death on account of the injuries

inflicted to him by somebody else. These injuries can be neither

accidental nor self inflicted. The admission of the doctor that prompt

and immediate treatment could have saved the life of Raosaheb does

not change the nature of death i.e. homicidal. We, therefore, hold

that the homicidal death is proved.

13. The prosecution has relied on following type of evidence :

(I) Eye witnesses - P.W.1 Gangubai, P.W.2 Ramnath, P.W.4

Waman, P.W.5 Kisan. P.W.4 Waman and P.W.5 Kisan have turned

hostile.

(II) Evidence in the form of seizure of blood stained cloths of

accused Balu, seizure panchnama Exh.46. P.W.8 P.I. P.B. Bhosale.

(III) Discovery of stick at the instance of accused no.2 Ramnath,

memorandum Exh.47 and seizure panchnama Exh.47-A proved by

P.W.8 P.I. Bhosale.

(IV) The spot panchnama Exh.45 proved by P.W.8 P.I. Bhosale.

(V) Recovery of axe from the house of the accused proved by P.W.7

panch, Exh.41, Article No.10 axe.

Cri.Appeal No.574/2002

(VI) Medical evidence of P.W.9 Dr. Mohd. Javed Asar who has

examined P.W.1 Gangubai. He found following injuries :

(1) CLW, scalp region 10 x 2 x bone deep cms linear

(2) Abrasion left forearm 3 x 1 cms, right middle 3rd, 3 x 1 x 1 cms linear

(3) Contusion on left scapular region, which was ill- defined

14. P.W.4 Waman and P.W.5 Kisan are hostile witnesses. Their

evidence shows that on the day of incident, in presence of both of

them, there was quarrel between Raosaheb and Zumberlal near the

well in Nimbacha Mala at 5.30 p.m. They had separated them. They

have stated that at late night they heard shouts of Raosaheb from the

side of pir, but they had not witnessed the incident of assault. In

cross-examination, P.W.4 Waman has admitted that accused no.1

Balu in his presence abused Raosaheb and threatened to finish him on

the ground that Raosaheb had switched off his electric motor.

15. Similarly, P.W.5 Kisan has stated about absence of accused no.1

Balu at 7.00 p.m. on account of dispute over well water. He had

separated them. Thereafter, he heard some shouts of Raosaheb from

the side of (pir) tomb at late night. He, in cross-examination admitted

that accused no.1 Balu had threatened Raosaheb to kill. He had

stated about arrival of accused no.1 Balu towards the house of

Raosaheb but had not stated anything about carrying axe or making

assault. He has deposed that accused no.1 Balu had abused

Gangubai in his presence in front of his house.

Cri.Appeal No.574/2002

16. Material evidence is of P.W.1 Gangubai and P.W.2 Ramnath.

P.W.2 Ramnath is son of P.W.1 Gangubai and deceased Raosaheb. He

had gone to Vaijapur. He stated that after his return from Vaijapur,

the incident had taken place. He deposed about the assault by

accused no.1 Balu at 7.30 p.m. on his father Raosaheb by inflicting

blow of axe on his skull. His father sustained profusely bleeding

injury. He stated that accused no.1 Balu threatened to come again

along with his maternal uncle to kill his father. Thereafter his father

went towards the village to inform the incident to police patil and

returned after half an hour. He deposed that when his mother was

going towards village, accused no.1 Balu gave blow of axe to his

mother on her head.

17. We find the evidence of P.W.2 Ramnath not reliable and

trustworthy. In the first place though he had seen assault on his

mother P.W.1 Gangubai and father deceased Raosaheb, he did not try

to save them nor raised shouts, nor accompanied them to the

hospital. He admitted that he visited Ghati hospital at Aurangabad on

the next day. His conduct is quite unnatural. It is tried to be

explained that he was having pains in the leg due to lameness but still

he could have raised shouts. He could have accompanied his parents

to the hospital. The evidence shows that he had gone to Vaijapur on

the day of incident and on the next day, he had gone to Ghati

hospital. He was not bed ridden. His conduct does not support his

version that he was eye witness. Besides, there are contradictions in

his evidence regarding the time element with reference to P.W.1

Cri.Appeal No.574/2002

Gangubai's evidence. He deposed that accused no.1 Balu came

within five minutes after abusing his father. P.W.1 Gangubai stated

that accused no.1 Balu came after one hour. He stated that when the

accused gave blow of axe on the skull of his mother, he was sitting in

the door of the farm house. There is evidence that there was no

electric lights in the field and P.W.2 Ramnath had not raised shouts

nor intervened nor begged the accused not to assault his mother.

P.W. 2 Ramnath has stated that accused nos.2 to 4 were present

when his mother was beaten. The evidence on record shows that

accused no.4 Hirabai had delivered a child and her child was just six

weeks old. It is highly improbable that accused no.4 Hirabai could

have participated in the incident. No role has been assigned by P.W.1

Gangubai as well as P.W.2 Ramnath to accused nos.2 to 4. P.W.2

Ramnath has also not gone to the police station to report the incident.

Considering the facts, we find evidence of P.W.2 Ramnath unreliable

and we discard it.

18. P.W.1 Gangubai is injured eye witness. She deposed that her

husband Raosaheb switched off the electric motor at about 6.00 p.m.

According to the accused, the turn of Raosaheb was starting on the

next day morning, whereas according to P.W.1 Gangubai their turn

was starting at 7.00 p.m. In either case, Raosaheb could not have

switched off electric motor at 6.00 p.m. This incident is not in dispute,

but according to P.W.4 Waman and P.W.5 Kisan, there was a quarrel

between Raosaheb and accused no.3 Zumberbai and Raosaheb had

assaulted accused no.3 Zumberbai.

Cri.Appeal No.574/2002

19. It is the matter of common sense that only because the water

supply of accused no.1 Balu was stopped by his uncle Raosaheb,

accused no.1 Balu would not have tried to kill his uncle and aunt. As

per evidence of P.W.4 Waman and P.W.5 Kisan, there must have been

some quarrel between deceased Raosaheb and Zumberbai and

Zumberbai might have been assaulted by deceased Raosaheb or she

might have been very much insulted by Raosaheb, which could have

enraged her son accused no.1 Balu to take the extreme step.

20. Learned Advocate Mr Dhorde has argued that the prosecution

has not explained the injuries sustained by Zumberbai but we find

that the defence has not proved any injury to Zumberbai. The injury

certificate is also not proved on record. Mere production of her letter

to Superintendent of Police dated 20.3.1995 will not prove the

defence case of assault on Zumberlal. The said letter has also not

been proved by examining the witnesses. Though there are

admissions to show that there was counter case against P.W.1 -

Gangubai and P.W.2 - Ramnath and others, no record of the said case

is produced in this case and, therefore, the accused cannot take any

benefit of counter case. In the light of the facts, the judgment in Hem

Raj's case (cited supra) regarding duty to explain injuries on the

accused by the prosecution is also not applicable.

21. According to evidence of P.W.1 Gangubai, the assault took place

in three separate incidents as follows :

(i) Accused no.1 came in front of her house, when she and her

husband were sitting in front of the house and accused no.1 Balu gave

Cri.Appeal No.574/2002

blow of axe on the skull of her husband causing bleeding injury.

(II) Thereafter her husband had gone to village Akoli-Wadgaon to

give intimation of the incident. When she was going towards the

village to see her husband, accused no.1 Balu came near her farm

house, obstructed her and gave a blow of axe on her head and

thereby caused bleeding injury to her.

(III) After sometime, there was commotion from the side of pir which

is about 500 to 1200 feet away from the house of P.W.1 Gangubai.

She heard shouts of her husband and when she had gone there, she

saw all the accused present there. Accused no.1-Balu was armed with

axe, accused no.2 was armed with stick and on her arrival, they left

the spot.

22. On carefully considering the evidence of P.W.1 Gangubai, we

find that the incident no.1 described as assault by accused no.1 Balu

by axe on skull of Raosaheb could not have taken place in front of

their house. As per the medical evidence, the contused lacerated

wound on the skull of P.W.1 Gangubai was the fatal wound. It was of

the size 3" x 1/2" by skull deep. It is inherently improbable that after

sustaining such injury, deceased Raosaheb could have gone to the

village, which is at a distance of half hour's walk and his family

members would have let him go alone. Evidence of P.W.1 Gangubai

shows that at the relevant time, she her two sons, two daughters-in-

law and grandson were present in the house. They did not come out.

They did not accompany Raosaheb either to go to the police patil for

reporting the matter or for taking him to the hospital. After carefully

Cri.Appeal No.574/2002

considering the evidence, we find that deceased Raosaheb must have

sustained all the injuries at one and the same time. The evidence of

P.W.3 Dr. Jinturkar and post mortem show that he had sustained some

contusion and abrasions which must have been caused by blows of

sticks. Evidence of P.W.1 Gangubai is silent about assault by sticks.

We, therefore, find that P.W.1 Gangubai is not telling the truth when

she is deposing about the first incident of assault by accused to her

husband in front of her house.

23. No doubt, there is spot panchnama showing blood on the wall

and in front of house of P.W.1 Gangubai, but as per F.I.R., the assault

on P.W.1 Gangubai also took place at the same place. The muddemal

property was sent for chemical analysis, but there is no record to

show what was the blood group of deceased Raosaheb and P.W.1

Gangubai. The blood found in the soil on the spot is human blood, but

its group had not been determined. There is nothing to suggest that

there were two separate assaults by accused no.1 in front of house of

P.W.1 Gangubai. It is also natural that if accused no.1 could have

assaulted her husband, P.W.1 Gangubai would not have alone gone

towards the village and her family members would not have let her go

alone. We, therefore, find evidence of P.W.1 Gangubai about assault

by accused no.1 Balu on her husband's skull by axe as unreliable and

untrustworthy.

24. The second incident is assault by accused no.1 after sometime

on the skull by the accused. As already stated that axe (Court Article

no.10) is recovered. As per Chemical Analysis report (Exh.50), no

Cri.Appeal No.574/2002

blood was found thereon. The evidence shows that it was dark night.

P.W.1 Gangubai has stated that there were no electric lights in the

farm house. The incident of assault on her had taken place late at

night. Still, we find that there was quarrel between accused no.1 Balu

and deceased Raosaheb. He had given abuses to P.W.1 Gangubai.

Therefore, even in darkness, she could have identified him by voice.

In the darkness, she might not have seen what was the nature of

weapon, but it must have been a sharp weapon. A contused lacerated

wound can be caused by sharp weapon, like axe and not when the

blade is very sharp like razor and not by blunt weapon. The evidence

of P.W. 9 Dr. Mohd. Javed Asar that the contused lacerated wound to

P.W.1 Gangubai could have been caused by blunt object, cannot be

accepted, as it is not according to medical jurisprudence.

25. We find that injury sustained by P.W.1 Gangubai is only bone

deep and, therefore, the weapon used might not be axe. We find that

accused nos.2 to 4 had not taken any part in the said assault. The

evidence regarding their presence is also not reliable. Accused no.1

Balu must be held responsible for causing the said injury. Considering

the depth of injury and the fact that P.W.1 Gangubai did not go for

medical treatment till next day 9.00 p.m., we find that the said injury

was not threatening life and the offence disclosed would be under

Section 324 of Indian Penal Code.

26. We find that after the quarrel between Raosaheb and

Zumberbai at the well, Raosaheb must have gone to the village and

the assault on him took place while returning to his house. It is stated

Cri.Appeal No.574/2002

that it took place near pir. The admitted topographic map Exh.56

discloses a distance of 500 feet from the house of accused to the

place of pir, whereas P.W.8 P.I. Bhosale has stated that peer is at a

distance of 1200 to 1300 feet. From the evidence of the witnesses,

we find that Raosaheb must have been assaulted very late, when

there was total darkness. The evidence of P.W.1 Gangubai and other

witnesses that they heard shouts and they went there and P.W.1

Gangubai's evidence that she saw all the accused present there is

totally unnatural, unreliable and untrustworthy. P.W.1 Gangubai has

lodged F.I.R. after a period of twenty four hours. It is true that P.W.1

Gangubai had lost her husband and she had sustained injury on her

skull. Therefore, mere delay in lodging the F.I.R. cannot be fatal and

her evidence cannot be said to be totally untrustworthy. However,

her evidence with regard to involvement of accused nos.2 to 4 and

about hearing of shouts of her husband from the spot near peer and

P.W.1 Gangubai going to the spot alone and watching accused nos.2

to 4 present there is totally unnatural and unreliable.

27. The clothes of accused no.1 Balu were seized and those were

sent for chemical analysis along with covering letter Exh.48 by P.W.8

P.I. Bhosale. Its chemical analysis report is received by him at Exh.50.

It shows human blood on the clothes of accused no.1 Balu. However,

the chemical analyst's report shows that blood groups of deceased

Raosaheb and of P.W.1 Gangubai could not be determined. The blood

group of the blood on the clothes of accused no.1 Balu also could not

be determined. Evidence of human blood found on the clothes of

accused no.1 Balu is sufficient to corroborate the evidence of P.W.1

Cri.Appeal No.574/2002

Gangubai about assault by accused no.1 on her skull, but it is not

sufficient to connect accused no.1 Balu with the murder of Raosaheb.

No witness has identified the axe seized as the weapon of offence and

no blood was found on the stick. In the light of these facts, we find

that the learned trial Judge has rightly acquitted the accused under

Section 302 read with Sec.34 of Indian Penal Code, but we find that

the learned trial Judge has committed error in holding accused no.1

Balu guilty for causing simple hurt by deadly weapon to deceased

Raosaheb. We hold that the finding of learned trial Judge that

accused no.1 Balu has committed offence under Section 324 of Indian

Penal Code by causing injury to P.W.1 Gangubai by means of deadly

weapon is proper and correct.

28. The learned trial Judge rightly acquitted the accused for offence

under Section 504 as no specific abuses were disclosed. The learned

trial Judge erred in convicting the accused no.1 Balu for offence of

criminal intimidation punishable under Section 506 (2) of Indian Penal

Code. P.W.1 Gangubai herself had not stated that accused no.1 Balu

had threatened her or her husband that he would commit their

murders. Learned trial Judge has relied on the evidence of P.W.4

Waman and P.W.5 Kisan, who were declared hostile and who have

given answers after leading questions were asked to them.

29. For the offence punishable under Section 506 of Indian Penal

Code, mere statement that the accused threatened to commit

somebody's murder or would cause some injury to him is not

sufficient. As per definition of criminal intimidation under Section 503

Cri.Appeal No.574/2002

of Indian Penal Code, the accused must threaten the witness with

injury or death to his person, or reputation or property, of anyone, in

whom that person is interested; with intent to cause alarm to that

person, to cause that person to do any act which that person is not

legally bound to do, or omit to do any act which that person is legaly

entitled to do, as means of avoiding the execution of such threat.

Then only the offence of criminal intimidation would complete. In the

present case, it was mere declaration of intention by accused no.1

Balu as per evidence of P.W.4 Waman and P.W.5 - Kisan which is not

supported by main witness P.W.1 Gangubai. It is not alleged that

accused no.1 Balu wanted P.W.1 Gangubai or deceased Raosaheb to

do certain things which they were not bound to do or omit to do

certain things, which they were legally entitled to do. Therefore,

conviction under Section 506 (2) of Indian Penal Code is not

sustainable.

30. In the light of the facts stated hereinabove, the appeal by the

State will have to be dismissed, whereas the appeal of accused no.1

Balu will have to be partly allowed. The conviction under Section 506

(2) of Indian Penal Code deserves to be set aside, whereas the

conviction of rigorous imprisonment for two years passed by learned

trial Judge under Section 324 of Indian Penal Code needs to be

modified. The judgment shows that the learned trial Judge held

accused no.1 Balu guilty for voluntarily causing hurt by deadly

weapon to both deceased Raosaheb and P.W.1 Gangubai. In that

case, he should have imposed separate punishments for each offence.

Considering the nature of injury (bone deep) and the fact that the use

Cri.Appeal No.574/2002

of weapon axe is not duly established, we take lenient view to reduce

the sentence under Section 324 of Indian Penal Code. Hence the

order:

- ORDER -

(I) Criminal Appeal No.574 of 2002 is partly allowed. The

conviction of accused no.1 Balu under Section 506 (2) of Indian Penal

Code is set aside. Conviction of accused no.1 Balu under Section 324

of Indian Penal Code is confirmed, however, the sentence is modified.

The accused shall undergo rigorous imprisonment for six months and

shall pay fine of Rs.5000/-, in default to suffer rigorous imprisonment

for 50 days. The fine amount be recovered and be paid as

compensation to P.W.1 Gangubai.

(II) The accused no.1 Balu shall surrender before the trial Judge

within fifteen days for undergoing the sentence, failing which the trial

Judge shall take steps to secure his presence and issue conviction

warrant accordingly.

(III) Criminal Appeal No.138 of 2003 filed by the State is dismissed.

        ( A.M. DHAVALE, J.)               ( T.V. NALAWADE, J.)




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