Bombay High Court
The State Of Mah & Ors vs Nandu Uttam Abhore & Ors on 24 January, 2018
Bench: T.V. Nalawade
(1) Cri.Appeal No. 25/2006 & ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 25/2006
1. Uttam s/o Tatyarao Ambhore
Age : 70 yrs, occu.: agri.,
2. Ramkisan s/o Mukund Ambhore
Age : 61 yrs, occu.: agri.,
3. Nandu s/o Uttam Ambhore
Age : 25 yrs, occu.: agri.,
All r/o Shrishti, Taluka Partur,
District Jalna. Appellants.
Versus
The State of Maharashtra
(Copy to be served on G.P.of
High Court, Bench at Aurangabad). Respondent.
***
Mr. Jaydeep Chatterjee, Advocate holding for
Mr. S.J. Salunke, Advocate for the appellants.
Mr. V.M. Kagne, A.P.P. for the respondent/State.
***
WITH
CRIMINAL APPEAL NO. 217 OF 2006
1. Promod @ Pamya s/o Dinesh Ambhore
Age : 25 yrs, occu.: agri.,
2. Rajesh s/o Ramkisan Ambhore
Age : 24 yrs, occu.: agri.,
3. Sharad s/o Babsaheb Ambhore
Age : 39 yrs, occu.: agri.,
4. Kalyan s/o Dinesh Ambhore
Age : 25 yrs, occu.: agri.,
All r/o Shrishti, Taluka Partur,
District Jalna. Appellants.
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(2) Cri.Appeal No. 25/2006 & ors.
Versus
The State of Maharashtra
(Copy to be served on G.P.of
High Court, Bench at Aurangabad). Respondent.
***
Mr. Jaydeep Chatterjee, Advocate holding for
Mr. S.J. Salunke, Advocate for the appellants.
Mr. V.M. Kagne, A.P.P. for the respondent/State.
***
WITH
CRIMINAL APPEAL NO. 282 OF 2006
The State of Maharashtra Appellant.
Versus
1. Nandu Uttam Ambhore
Age : 25 yrs, occu.: agri.,
2. Ramkisan s/o Mukund Ambhore
Age : 61 yrs, occu.: agri.,
3. Promod @ Pamya s/o Dinesh Ambhore
Age : 25 yrs, occu.: agri.,
4. Uttam s/o Tatyarao Ambhore
Age : 70 yrs, occu.: agri.,
5. Rajesh s/o Ramkisan Ambhore
Age : 24 yrs, occu.: agri.,
6. Sharad s/o Babsaheb Ambhore
Age : 39 yrs, occu.: agri.,
7. Kalyan s/o Dinesh Ambhore
Age : 25 yrs, occu.: agri., Respondents.
***
Mr. V.M. Kagne, A.P.P. for the appellant/State.
Mr. Jaydeep Chatterjee, Advocate holding for
Mr. S.J. Salunke, Advocate for respondents/accused
***
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(3) Cri.Appeal No. 25/2006 & ors.
WITH
CRIMINAL REVISION APPLICATION NO. 44 OF 2006
Arun s/o Dnyanoba Naval
Age : 35 yrs, occu.: agri.,
R/o Shrishti, Taluka Partur,
District Jalna. Petitioner.
Versus
1. The State of Maharashtra
(Copy to be served on Public
Prosecutor of High Court Bombay,
Bench at Aurangabad).
2. Nandu s/o Uttam Ambhore
Age : 26 yrs, occu.: agri.,
R/o Shrishti, Taluka Partur,
District Jalna.
3. Ramkisan s/o Mukund Ambhore
Age : 62 yrs, occu.: agri.,
R/o as above.
4. Promod @ Pamya Dinesh Ambhore
Age : 22 yrs, occu.: agri.,
R/o as above.
5. Dinesh s/o Mukind Ambhore
Age : 42 yrs, occu.: agri.,
R/o as above.
6. Ganesh s/o Babasaheb Ambhore
Age : 42 yrs, occu.: agri.,
R/o as above.
7. Uttam s/o Tatyarao Ambhore
Age : 71 yrs, occu.: agri.,
R/o as above.
8. Dnyaneshwar s/o Babasaheb Ambhore
Age : 36 yrs, occu.: agri.,
R/o as above.
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(4) Cri.Appeal No. 25/2006 & ors.
9. Rajesh s/o Ramkisan Ambhore
Age : 25 yrs, occu.: agri.,
R/o as above.
10. Sharad s/o Babasaheb Ambhore
Age : 40 yrs, occu.: agri.,
R/o as above.
11. Kalyan s/o Dinesh Ambhore
Age : 26 yrs, occu.: agri.,
R/o as above.
***
Mr. S.B. Bhapkar, Advocate for the applicants.
Mr. V.M. Kagne, Advocate for respondent No.1/State.
Mr. Jaydeep Chatterjee,Advocate for respondent Nos.2 to 11.
***
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
RESERVED ON : 18.01.2018.
PRONOUNCED ON : 24.01.2018.
JUDGMENT : (PER SUNIL K. KOTWAL,J.)
1. Criminal Appeal No.25/2006 and Criminal Appeal
No.217/2006 are directed against the judgment and order of
conviction passed by Sessions Judge, Jalna in Sessions Case
No.103/2004, convicting the appellants for the offences punishable
under Sections 325 read with Section 149, 341 read with Section
149, 147 and 148 of the Indian Penal Code (For short "I.P.C.).
Criminal Appeal No.282/2006 and Criminal Revision Application
No.44/2006 are filed by State and original informant Arun Naval
respectively, against the order of acquittal passed by Sessions
Judge, Jalna in Sessions Case No.103/2004 and for enhancement
of sentence.
(5) Cri.Appeal No. 25/2006 & ors.
2. The facts leading to institution to these appeals and
revision are that all accused Nos. 1 to 10 are the residents of village
Shrishti, Taluka Partur. Land of the accused and land of the family
of Nandu Naval (hereinafter referred to as "deceased") were
adjacent to each other. Deceased and his three brothers used to
cultivate their land jointly. Dispute frequently arose in between the
family of the deceased and accused persons on account of their
agricultural land and on the basis of reports lodged by family
members of the deceased, chapter cases were filed against the
accused persons. However, accused used to threaten the
deceased and his brothers to beat them and to cause death of either
of the brothers. Despite mediation by respectable villagers, the
relations in between family of the deceased and accused persons
remained strained.
3. On 30.06.2004 at about 4.00 to 4.30 p.m. when
deceased Nandu was returning from his agricultural land known by
local name "Mala" and when he reached near the land of Nandu
Ambhore by Lingsa Panand, that time accused Nos.1 to 10
intercepted the deceased and assaulted him by sticks, iron pipe, axe
and dagger. Coincidently informant Arun Naval (PW-2) was also
proceeding towards land "Mala" and at the time of occurrence and
he was near Lingsa Panand. When he witnessed the occurrence,
he started shouting and asked the accused not to beat the
(6) Cri.Appeal No. 25/2006 & ors.
deceased. In response, some of the accused rushed towards Arun
Naval (PW-2) and threatened to kill him. By that time, Pralhad
Dattatraya Ambhore (PW-4) and Nandu Ambhore rushed on the
spot. When the accused noticed the arrival of these witnesses, they
escaped from the spot. Due to the assault by accused, the
deceased sustained injuries on his both legs, hands, head and his
arms and legs had become motionless. Pralhad Ambhore (PW-4)
immediately arranged for a car and his servant Damodar Mavkar
(PW-5) took the deceased by car to bus-stand Shrishti. From the
bus stand jeep was engaged and the deceased was brought to
Police Station, Ashti. A.P.I. Bhosle (PW-14), who was present at
Police Station, Ashti, when noticed the bleeding injuries sustained
by the deceased and his deteriorating condition, advised the
informant Arun Naval (PW-2) to immediately take the deceased for
medical treatment. He handed over letter to P.H.C. Ashti. However,
as the Medical Officer was not present at P.H.C. Ashti, the deceased
was taken to Rural Hospital, Partur and from there he was referred
to Civil Hospital, Jalna. At Rural Hospital, Partur Dr. Prashant
Ambhore (PW-3) examined and provided primary treatment to the
deceased before referring him to Civil Hospital, Jalna. However, on
the way to Civil Hospital, Jalna deceased succumbed to his injuries.
Thereafter the dead body of deceased was kept at Civil Hospital,
Jalna. By that time, informant Arun Naval (PW-2) lodged F.I.R.
(7) Cri.Appeal No. 25/2006 & ors.
(Exh.51) to Police Station, Ashti at about 6.30 p.m. Crime No.
31/2004 for the offences punishable under Sections 143, 147, 148,
341, 504 and 307 read with Section 149 of I.P.C. came to be
registered against accused Nos.1 to 10. A.P.I. Bhosle started
investigation of this crime. After receiving the intimation of death of
the deceased, Section 307 of the I.P.C. was converted into Section
302 of the I.P.C.
4. During the course of investigation, A.P.I. Bhosle (PW-
14) had drawn spot panchnama and seized samples of blood mixed
earth and normal earth from the spot of the occurrence. On
01.07.2004, Dr. Uday Paritkar (PW-1) performed postmortem
examination of the dead body of the deceased at Civil Hospital,
Jalna. Accused Nos.7 to 10 came to be arrested on 01.07.2004. In
the meantime A.P.I. Bhosle (PW-14) was transferred and further
investigation was carried out by A.P.I. Shetekar (PW-15). He
arrested accused Nos.1 to 6 and on 05.07.2004 attached blood
stained clothes on the person of the accused under panchnama
recorded at Police Station. During investigation as per disclosure
statement given by accused persons, the weapons of the offence
were recovered from the accused and were seized under different
panchnamas. Blood sample of the deceased as well as accused
were collected and all seized articles were referred to Chemical
Analyzer, Aurangabad. After completion of investigation, charge-
(8) Cri.Appeal No. 25/2006 & ors.
sheet was submitted to J.M.F.C. Partur.
5. Offence punishable under Section 302 of I.P.C. being
exclusively triable by Court of Sessions, this case was committed to
Sessions Court, Jalna.
6. Charge (Exh.29) was framed against accused Nos.1 to
10 for committing offence punishable under Sections 147, 148, 341,
506, 302 read with Section 149 of the I.PC. Accused pleaded not
guilty and claimed trial.
7. Defence of the accused is of total denial. They
contended that on account political rivalry and village politics they
have been falsely implicated.
8. Prosecution examined total 15 witnesses. Defence
examined Mahadeo Solanke (DW-1) who is Branch Manager of
District Co-operative Bank, Jalna to prove the defence of alibi taken
by accused No.7.
9. After considering the oral and documentary evidence
placed on record, trial Court pleased to convict only accused Nos.1
to 3, 6, 8, 9 and 10 for the offences punishable under Sections 147,
148, 341 and 325 read with Section 149 of the I.P.C. The convicted
accused were sentenced to suffer rigorous imprisonment for five
years and to pay fine of Rs. 1,000/- i/d rigorous imprisonment for six
months each for the offence punishable under Section 325 read with
Section 149 of the I.P.C. They were sentenced to suffer rigorous
(9) Cri.Appeal No. 25/2006 & ors.
imprisonment for three months and to pay fine of Rs. 250/- each i/d
rigorous imprisonment for 15 days for the offence punishable under
Section 147 of the I.P.C. Further, they were sentenced to suffer
rigorous imprisonment for six months and fine of Rs. 500/- each i/d
rigorous imprisonment for one month for the offence punishable
under Section 148 of the I.P.C. and rigorous imprisonment for 15
days each and to pay fine of Rs. 100/- i/d rigorous imprisonment for
7 days each for the offence punishable under Section 341 read with
Section 149 of the I.P.C. The substantive sentence was to run
concurrently and direction was given to pay the deposited fine
amount to the widow of the deceased. Accused Nos.4, 5 and 7
were acquitted of all the offences with which they were charged.
Therefore, appeals against the order of conviction, State appeal and
Revision against the order of acquittal arise.
10. Heard strenuous arguments submitted by Shri Jaydeep
Chattergee, Advocate for the original accused and the learned A.P.P.
for the State.
11. At the outset, learned Counsel for the
appellants/convicted accused submitted that conviction of the
accused Nos.1 to 3, 6, 8, 9 and 10 is perfect. His only contention is
that considering the old age of accused Uttam Ambhore, Ramkisan
Ambhore and sentence already undergone by other convicted
accused, the rigorous imprisonment for five years for the offence
(10) Cri.Appeal No. 25/2006 & ors.
punishable under Section 325 of the I.P.C. be reduced to the
imprisonment already undergone by the accused.
12. Learned Counsel submitted that all the injuries noted by
Dr. Uday Paritkar (PW-1) are on the limbs of the deceased and none
of the injury is on vital part of the body. Learned Counsel for the
appellants/convicted accused submitted that while assaulting the
deceased, the assailants had chosen either hand and leg of the
deceased which indicates the lack of intention to kill the deceased.
Therefore, conviction of the accused under Section 325 read with
Section 149 of the I.P.C. will be justified and accused cannot be
convicted under Section 302 of the I.P.C. for committing murder of
the deceased, which requires causing death with intention to kill.
13. Learned A.P.P. for the State submitted that total 9
injuries were found on the body of the deceased which indicate that
the accused had brutally assaulted the deceased. He points out
that one of the accused was also holding dagger in his hand which
is sufficient to hold that accused had intention to kill the deceased,
and therefore, the culminative effect of the brutal killing of the
deceased at the hands of the accused is that they had requisite
intention to kill the deceased at the time of assault. He prays for
conviction of the accused under Section 302 read with Section 149
of the I.P.C.
(11) Cri.Appeal No. 25/2006 & ors.
14. The next submission of learned A.P.P. is that the
sentence of five years rigorous imprisonment for the offence
punishable under Section 325 of the I.P.C. is reasonable sentence
considering the brutal attack on the deceased by accused.
According to A.P.P., old age of some of the accused cannot be a
proper reason to reduce the sentence imposed by the trial Court.
15. Out of the 15 witnesses examined by the prosecution,
only Arun Naval (PW-2) and Pralhad Ambhore (PW-4) are eye
witnesses who coincidently reached on the spot. The testimony of
the remaining witnesses is regarding the circumstantial evidence
brought on record by the prosecution. Undisputedly including
deceased, his family members are on inimical terms with the
accused persons on account of the dispute of the landed property.
Therefore, at least the testimony of Arun Naval (PW-2) must pass
the test of close scrutiny by this Court.
16. Arun Naval (PW-2) deposed on oath that on
30.06.2004, in the morning hours the deceased went to the
agricultural land "Mala" and at about 4.00 p.m. Arun (PW4) started
for going towards land "Mala". When he reached to Lingsa Panand,
near the agricultural land of Nandu Ambhore, he witnessed that
accused Nos.1, 2, 3, 5, 6, 7, 8, 9 and 10 were beating the deceased.
According to this witness, accused No.1 was armed with dagger and
iron pipe, accused No.2 was armed with iron bar, accused No.6 was
(12) Cri.Appeal No. 25/2006 & ors.
armed with axe and remaining accused were holding sticks in their
hands and they were assaulting deceased by means of respective
weapon in their hands. Arun (PW-1) when shouted, accused Nos.8
and 10 rushed towards him and threatened to kill him. That time
Nandu Bhagwanrao Ambhore and Pralhad Ambhore (PW-4)
reached on the spot. Thereafter the accused left the spot of the
incident. Regarding this occurrence Pralhad Ambhore (PW-4) has
also fully corroborated by deposing that on the date of incident at
about 4.00 p.m. when he was returning to his village near the land of
Nandkumar Ambhore, he heard noise and the shout of Arun Naval
(PW-1) as "save, save". Therefore, he rushed on the spot and
witnessed that accused Nos. 1, 2, 3, 4, 8, 10, 6 and 9 were
assaulting the deceased by iron pipes, sticks, iron bar, big knife and
axe. According to this witness, he asked the accused not to beat
the accused, otherwise he would die. This witness confirmed that
Nandu Ambhore and the informant Arun Naval (PW-1) were present
on the spot.
17. This is the material testimony of Arun Naval (PW-2) and
Pralhad Ambhore (PW-4) regarding actual occurrence of the
incident. The remaining part of the evidence is regarding shifting of
the deceased to the rurlal hospital till the deceased reached to Civil
Hospital, Jalna.
18. It is to be noted that Pralhad Ambhore (PW-4) is
(13) Cri.Appeal No. 25/2006 & ors.
absolutely independent witness and despite searching cross
examination of this witness, nothing could be elicited which brings
on record slightest possibility that this witness had any reason to
falsely implicate the accused in the present case. Only because
one criminal case is pending against this witness at the instance of
one Haribhau Ambhore, inference cannot be drawn that this witness
carried grudge against any one of the accused.
19. Even the omissions pointed out by learned defence
Counsel in the testimony of this witness are the minor
discrepancies which do not shake the basic version of this witness
regarding witnessing the occurrence of the incident of brutal assault
to deceased at the hands of the accused. The Apex Court had
occasion to consider as to what importance should be given to such
minor discrepancies in the case of Bharwada Bhoginbhai Hirjibhai
vs. State of Gujrath reported in (AIR 1983 Supreme Court 753),
wherein the Apex Court ruled that,
"Overmuch importance cannot be attached to
minor discrepancies emerged in the testimony of
prosecution witnesses. The reasons are
obvious :-
(1) By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
(2) Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties
(14) Cri.Appeal No. 25/2006 & ors.
therefore cannot be expected to be attuned to
absorb the details.
(3) The powers of observation differ from person
to person. What one may notice, another may not.
An object or movement might emboss its image
on one person's mind, whereas it might go
unnoticed on the part of another.
(4) By and large people cannot accurately recall a
conversation and reproduce the very words used
by them or heard by them. They can only recall
the main purport of the conversation. It is
unrealistic to expect a witness to be a human tape
recorder.
(5) In regard to exact time of an incident, or the
time duration of an occurrence, usually, people
make their estimates by guesswork on the spur of
the moment at the time of interrogation. And one
cannot expect people to make very precise or
reliable estimates in such matters. Again, it
depends on the time-sense of individuals which
varies from person to person.
(6) Ordinarily a witness cannot be expected to
recall accurately the sequence of events which
taken place in rapid succession or in a short time
span. A witness is liable to get confused, or mixed
up when interrogated later on.
(7) A witness, though wholly truthful, is liable to
be overawed by the Court atmosphere and the
piercing cross-examination made by counsel and
out of nervousness mix up facts, get confused
regarding sequence of events, or fill up details
from imagination on the spur of the moment. The
sub-conscious mind of the witness sometimes so
operates on account of the fear of looking foolish
or being disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him - perhaps it is a sort of a
psychological defence mechanism activated on the
spur of the moment".
20. Thus, in the light of the above discussed trite law, no
importance can be given to the minor discrepancies emerging in the
testimony of Pralhad Ambhore (PW-4). However, it cannot be
(15) Cri.Appeal No. 25/2006 & ors.
ignored that he has not named accused Nos.5 and 7 as the
assailants who were assaulting the deceased. Even Arun Naval
(PW-2) has not whispered a word regarding presence of accused
No.4 on the spot at the time of occurrence of the incident of assault
to the deceased. Considering these circumstances on record, the
learned trial Court has rightly extended the benefit of doubt in favour
of accused Nos.4, 5 and 7. In addition to this, the defence witness
Mahadeo Solanke (DW-1), who is the Branch Manager of District
Central Co-operative Bank, Jalna, also deposed that at the relevant
time of the occurrence accused No.7 was present on duty in the
District Central Co-operative Bank, Jalna, Branch-Ashti. Mahadeo
(DW-1) stood constant despite searching cross examination by
special A.P.P., who could bring on record in cross-examination of
this witness that being Inspector and Recovery Officer accused No.7
has to visit different villages for survey regarding different loan
proposals. Thus, the testimony of this defence witness together
with omission of name of accused No.7 by star eye witness Pralhad
(PW-4) as one of the assailants, was rightly considered by learned
trial Court while extending benefit of doubt in favour of accused
No.7. We do not find any fault on the part of the learned trial Court
while acquitting accused Nos.4, 5 and 7.
21. Regarding the involvement of convicted accused, Arun
Naval (PW-2) and Pralhad Ambhore (PW-4) are consistent despite
(16) Cri.Appeal No. 25/2006 & ors.
lengthy and searching cross-examination by learned defence
Counsel. After witnessing the occurrence when Arun Naval (PW-2)
with the help of Pralhad Ambhore (PW-4) and his servant took the
deceased to Police Station, Ashti, that time P.S.I. Bhosle (PW-14)
asked these witnesses to wait at Police Station, Ashti and he
advised the remaining persons, who accompanied the injured
deceased, to take him to the hospital. Arun Naval (PW-2) has duly
proved F.I.R. (Exh.51) which was registered at 6.30 p.m. on
30.06.2004. Thus, it can be gathered that the oral testimony of Arun
Naval (PW-1) and eye witness Pralhad Ambhore (PW-4) is also fully
corroborated by prompt lodging F.I.R.
22. Dr. Prashant Ambhore (PW-3) is the witness who
examined the deceased when was brought to Rural Hospial, Partur
on 30.06.2004 at 6.40 p.m. According to this witness, he
immediately provided emergency treatment to the deceased who
was bleeding profusely and referred him to Civil Hospital, Jalna.
This witness only opined that bones of the both hands and both legs
of the deceased had fracture. In fact evidence of this witness does
not carry much importance, but it can be used as further
corroboration to the testimony of Dr. Uday Paritkar (PW-1) who
performed autopsy examination of the dead body of deceased on
01.07.2004.
(17) Cri.Appeal No. 25/2006 & ors.
23. From the testimony of Dr. Uday Paritkar (PW-1) it
emerges that on postmortem examination he noticed the following
external injuries on the dead body of deceased:-
(1) Cut and lacerated wound on right side of vertex - 3x1x½ cm.
(2) Contusion right lateral to right arm 2x1 and another 3x1 cm
one below another.
(3) Cut and lacerated wound right lateral of right forearm 2x1x½
cm. Radius bone protruding outside.
(4) Abrasion at palm right ring finger ¼th x ¼th cm, with fracture of
finger bone.
(5) Contusion left mis forearm 3 cm circular, with fracture of
radius middle 1/3rd
(6) Contusion left wrist 4 x 1 cm circular, 2 and 3rd metacarpal
bone fractured.
(7) Abrasion below ring and middle finger.
(8) Cut and lacerated wound right left anteriorly approximately 2 x
½ x ½ cm, one below another six such wounds with fracture of
tibia and fibula.
(9) Cut and lacerated wound left leg 2 x ½ x ½ cm. One below
another five such wounds were present.
24. According to Dr. Uday Paritkar (PW-1), cause of death
of deceased was 'cardio respiratory arrest due to hemorrhagic shock
due to multiple fracture on body'. He has also made it clear that
there were 13 cut wounds on the person of the deceased which are
possible due to axe (Article-36). He also found 7 fractures on the
body of deceased which were caused by hard and blunt object like
sticks (Article-4, 5) and iron pipe (Article-1). However, from his
(18) Cri.Appeal No. 25/2006 & ors.
cross-examination it becomes clear that injury No.1 i.e. contused
lacerated wound on vertex is not head injury and it is possible due to
fall on the hard surface. This witness has also made it clear that no
injury was found on the vital part of the body of deceased.
25. So far as remaining circumstantial evidence on record
in the form of preparation of spot panchanama and seizure of blood
stained clothes of the accused is concerned, we find that seizure of
the clothes of the accused is doubtful and from the cross-
examination of panch Shaikh Moin (PW-13) it emerges that at the
time of seizure all the clothes were kept at Police Station on one
table. Thus, prosecution cannot prove that the so called clothes of
the accused were seized from actual person of the accused. So
also all the articles including seized clothes, sample of earth and
seized weapons were not kept in a sealed condition till they reaches
to the Chemical Analyzer for examination. Prosecution has not
taken pains to examine the custodian of muddemal articles at Police
Station as well as the Carrier of this muddemal, to establish that
from the time of seizure till the muddemal reached to Chemical
Analyzer, it was kept in a sealed condition. Thus, the possibility of
tampering of these muddemal articles cannot be ruled out.
Therefore, the circumstantial evidence placed on record is nothing
but a useless piece of evidence.
26. However, as observed above, the oral testimony of eye
(19) Cri.Appeal No. 25/2006 & ors.
witnesses Arun (PW-2) and Pralhad (PW-4) is totally trustworthy and
free from material infirmities and that can be relied upon to base the
conviction of accused Nos.1 to 3, 6, 8, 9 and 10.
27. On the basis of this direct evidence the prosecution has
duly proved that on the date and time of the incident, these
convicted accused went together armed with deadly weapons,
intercepted the deceased on way to his house and brutally
assaulted him by their respective weapon. These circumstances on
record are sufficient to hold that the accused assaulted deceased
and caused grievous hurt to him in furtherance of the common
object of that unlawful assembly. Therefore, conviction of the
accused under Sections 147, 148, 341 read with Section 149 of the
I.P.C. is justified and needs no interference.
28. So far as conviction of the convicted accused under
Section 325 of the I.P.C. is concerned, contention of the learned
Counsel for the appellants/convicted accused is acceptable that
choosing only the hands and legs of the deceased while inflicting
the blows of respective weapons by accused indicates that they did
not intend to cause death of the deceased. Otherwise they would
have inflicted the blows of the respective weapons on the vital part
of the body such as head and chest. Avoiding such vital part of
deceased by accused is certainly sufficient to hold that the accused
only voluntarily caused grievous hurt to the deceased which
(20) Cri.Appeal No. 25/2006 & ors.
unfortunately resulted into death of the deceased. Therefore, as
submitted by learned Counsel for the appellants/ convicted accused,
the conviction of the above convicted accused under Section 325
read with 149 of the I.P.C. is perfect and needs no interference.
Otherwise also, the learned Counsel for appellants/convicted
accused has not assailed the correctness of conviction by the trial
Court. He has only concentrated his argument on the point of
quantum of sentence.
29. At the outset, we must observe that there cannot be a
precedent as to what quantum of sentence should be imposed
under the peculiar circumstances. Quantum of sentence depends
upon facts and situation of each and every case. In the case at
hand, one unarmed person was brutally assaulted by accused
persons resulting into 13 cut injuries and 7 fracture injuries on the
body of the deceased. As a culminative effect of these injuries the
death of deceased was resulted. Such type of brutal act cannot be
dealt with by soft hands by taking extreme lenient view to reduce the
sentence already undergone by them. Only old age of four accused
cannot be a ground to reduce their sentence when the learned trial
Court has assigned sound reasons for imposing the rigorous
imprisonment of five years for the offence punishable under Section
325 read with Section 149 of the I.P.C. We hold that the sentence
imposed by trial Court for the offence punishable under Section 325
(21) Cri.Appeal No. 25/2006 & ors.
read with Section 149 of the I.P.C. is definitely reasonable. On the
other hand, trial Court has shown every possible leniency while
awarding such sentence. We do not find any reason to interfere
with the judgment of conviction and sentence imposed by the
learned trial Court while convicting the accused for the offences
punishable under Section 325 read with Section 149, 341 read with
Section 149 and under Sections 147 and 148 of the I.P.C. So also
acquittal of accused Nos.4, 5 and 7 is recorded by trial Court by
assigning sound reasons and by taking possible view. Therefore,
such acquittal cannot be interfered with in the present appeal.
30. In the result, we hold that all the appeals and revision
fail and deserve to be dismissed. Hence, the following order.
ORDER
1. Criminal Appeal Nos. 25/2006, 217/2006, 282/2006
and Criminal Revision No.44/2006 are dismissed.
2. Appellants/Convicted accused in Criminal Appeal
Nos.25/2006 and 217/2006 i.e. accused Nos.1, 2, 3,
6, 8, 9 and 10 shall surrender to their bail bonds
before the trial Court immediately.
3. The bail bonds of acquitted accused i.e. accused
Nos.4, 5 and 7 shall stand cancelled.
( SUNIL K. KOTWAL) ( T.V. NALAWADE)
JUDGE JUDGE
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