Bombay High Court
Datta Manohar Jamadar And Others vs The State Of Maharashtra on 17 October, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:26198-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 446 OF 2018
1. Datta Manohar Jamadar
Age: 34 years, Occu.: Labour,
R/o Dapka, Tq. Omerga,
Dist. Osmanabad
2. Manohar Sattappa Jamadar
(Abated as per order dt. 20/12/2023)
3. Balaji Manohar Jamadar
Age: 24 years, Occu.: Education,
R/o Dapka, Tq. Omerga,
Dist. Osmanabad
4. Digambar Manohar Jamadar
Age: 32 years, Occu.: Mechanic,
R/o Dapka, Tq. Omerga,
Dist. Osmanabad
5. Vimalbai Manohar Jamadar
Age: 54 years, Occu.: Household,
R/o Dapka, Tq. Omerga,
Dist. Osmanabad
6. Anusaya Datta Ghate
Age: 29 years, Occu.: Household,
R/o Naldurg, Tq. Tuljapur,
Dist. Osmanabad ..APPELLANTS
VERSUS
State of Maharashtra ..RESPONDENT
....
Mr. S.N. Patne, Advocate for appellants
Mr. S.D. Ghayal, Addl.P.P. for respondent - State
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 18th SEPTEMBER, 2024
PRONOUNCED ON : 17th OCTOBER, 2024
1 / 22
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JUDGMENT ( PER : R.G. AVACHAT,J. ) :
1. The appellants before us in this appeal are the members of one
and the same family, meaning thereby the parents and their four sons,
challenging the judgment and order dated 14th May, 2018 passed by the
Court of Additional Session, Omerga ('trial Court') in Sessions Case, No. 25
of 2014, whereby they have been convicted and consequently sentenced, as
follows :-
Section (I.P.C.) Sentence Fine (Rs.) In default
302 r/w 149 Life Imprisonment 3,000/- each S.I. for two months
143 R.I. for six months 1,000/- each S.I. for one month
147 R.I. for two years 1,000/- each S.I. for one month
148 R.I. for three years 1,000/- each S.I. for one month
323 r/w 149 R.I. for one year 1,000/- each S.I. for one month
506 r/w 149 R.I. for one year 1,000/- each S.I. for one month
Pending the appeal, Appellant No.2 - Manohar passed away.
The appeal, therefore, stood abated against him.
2. Manohar (deceased appellant) was the elder brother-in-law of PW
2 - Laxmibai (informant). Manik (deceased) was Manohar's real brother.
They have two more brothers, Ashok and Tukaram. Partition of the ancestral
agricultural land had already been effected and each brother was cultivating
the land of his share. There was, however a well in common.
On 08th January, 2014, Laxmibai and Manik returned to their
house by little past 08:00 p.m. after having worked in their field. Laxmibai
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was engaged in cooking. Manik was said to be in the house. Their children
were studying. Appellant - Datta came in front of their house and questioned
as to why he did not allow him to take water of the well on that day. Manik
tried to reason with him and even asked to take water on the next day. Datta
did not listen. He entered the house and dragged Manik out of the house.
All the appellants came together immediately and started abusing Manik and
even beat him up with fist and kick blows. PW 2 - Laxmibai intervened to
rescue her husband. She too was not spared. Manohar (deceased
appellant) gave a stick blow on her head. Datta assaulted on the stomach of
Manik with a knife. While appellant - Digambar inflicted on the head of
Manik an axe blow. On hearing the commotion, village Sarpanch and others
came. They subsided the quarrel. Both, Manik and Laxmibai were taken
first to Sub-District Hospital, Omerga and then shifted to Civil Hospital,
Solapur. In the early morning of 09th January, 2014, Manik breath his last.
3. In the Sub-District Hospital, Omerga, Laxmibai gave her
statement-cum-F.I.R. (Exh.56). Based on the same, a crime vide C.R. No.
13 of 2014 was registered. On demise of Manik, Section 302 of the I.P.C.
came to be invoked. Soon after the quarrel, somebody had informed the
concerned police station. Crime scene panchanama (Exh.66) was drawn.
Articles like axe handle, axe blade, bamboo stick, blood mixed earth were
collected and seized in the presence of panchas. The appellants were
arrested. Clothes on their person were seized. Inquest was conducted. The
mortal remains of Manik was subjected to autopsy. Clothes on his person
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too were taken charge of. Statements of the persons acquainted with the
facts and circumstances of the case were recorded. The seized articles were
forwarded to R.F.S.L., Aurangabad for analysis and report. On completion of
investigation, charge-sheet was filed.
4. The trial Court framed the charge (Exh.4) for various offences.
The appellants pleaded not guilty. Their defence was of false implication.
According to them, Manik (deceased) was heavily addicted to liquor. There
was raised platform in the nearby of his house. People would gather there to
consume liquor. Due to heavy drink, he was not in his senses. He fell from
the said platform on a pointed object like broken liquor bottles and suffered
injuries to his stomach. He succumbed to the injuries.
5. To bring home the charge, the prosecution examined nine
witnesses and produced in evidence certain documents. On appreciation of
the evidence in the case, the trial Court convicted and consequently
sentenced the appellants as stated above.
6. Learned counsel for the appellants would submit that admittedly
relations between Manik (deceased) and his brother - Manohar (deceased
appellant) were not good. Manik was addicted to liquor. The material
witnesses examined in the case are all family members of the deceased. An
independent witness - PW 6 - Vishal testified there was quarrel between
some of the appellants and family members of Manik (deceased). He was
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categorical to state that Manik and Laxmibai were found lying at a bridge
near the raised platform nearby their house. PW 9 - Ramhari, Investigating
Officer did not draw panchanama of that situs. Appellant - Balaji too
suffered injuries on the very day. He was examined on 09:00 p.m. on the
same day. Learned counsel then took us through the inconsistency in the
medical certificates of both, Manik (deceased) and Laxmibai and the injuries
noticed in the postmortem report (Exh.50). He meant to say that with a view
to falsely implicate one and all the family members of Manohar (deceased
appellant), the medical officer, who conducted the postmortem, added two
more injuries in the postmortem report, which the deceased in fact had not
suffered. According to learned counsel, two of the appellants, viz. Datta and
Digambar are behind the bars for little over ten years. Even the female
members have not been spared in falsely implicating in the crime in question.
He, therefore, urged for allowing the appeal.
7. Learned Addl.P.P. would, on the other hand, submit that
postmortem report (Exh.50) indicates the deceased to have suffered three
injuries. One of the three injuries proved fatal. PW 1 - Dr. Rode, Medical
Officer ruled out the said injury to have been caused by fall. The F.I.R.
(Exh.56) was lodged within an hour of the incident. The informant too was
assaulted on her head. She was an injured eye witness. Her evidence
carries more weight when no independent witness was available. When the
victim herself gave evidence against the appellants, there would be no
reason for her to spare the real culprits and falsely implicate the appellants.
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He took us through the evidence of each and every witness on record to
ultimately urge for dismissal of the appeal. According to him, the injury
certificate of appellant - Balaji (Exh.93) was obtained in June 2014 i.e. six
months after the incident. The same indicates to have been obtained to
make out a false defence. He would further submit that an independent
witness was examined. He had witnessed some of the incident. The same
fortifies the case of the prosecution. The medical evidence is consistent with
the ocular evidence. He, therefore, urged for dismissal of the appeal.
8. Considered the submissions advanced. Perused the evidence on
record. Also perused the judgment impugned herein. Let us now advert
thereto and appreciate the same.
9. PW 1 - Dr. Rode was on duty at Civil Hospital, Solapur on 09 th
January, 2014. His evidence discloses that he conducted postmortem
examination of the mortal remains of Manik by 09:00 in the morning on that
day. On examination, he noticed following injuries to the deceased :-
External Injuries :-
1. 5 cm. sutured contused incised wound over left aspect of forehead
directing antero posteriorly 5 cm away from midline towards left
side.
2. 2x1x1 cm incised wound over center of upper lip directing
vertically.
3. 4x2 cm incised wound of boat shape over left hypochondirum (left
side of stomach below ribs) region directing obliquely with lateral
end directing upwards. The said injury was oozing of blood. So
also, yellowish issue was protecting. All the said three injuries are
ante mortem.
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Internal Injuries :-
In the head region, under scalp hamatoma over left aspect of forehead.
No damage to the brain. In the abdomen region, penetrating injury to
left hydrochloride part of the abdomen and all the muscular layers of
abdomen penetrating, cavity deep penetration, intra peritoneal
hemorrhage 500 gms blood clots.
Cavity - congested. In the cavity, free blood clots 400 gms.
Kidenys - Left kidney incised wound, vertically 10 cm oedematous
pale, 120 gms. Right kidney congested 110 gms.
10. He had preserved viscera. He placed on record viscera report
during his evidence. The said report indicates the viscera contains 103 ml.
ethyl alcohol per 100 gms. The blood group of the deceased was 'O'. In his
opinion, Injury No.3 was sufficient in the ordinary course of nature to cause
death. Injury No.1 was possible by sharp as well as blunt side of the sharp
weapon like an axe. Injury No.2 was also possible by sharp object like knife,
but was not possible by blunt side of sharp object like an axe.
11. His evidence further discloses that on 25 th January, 2014 i.e. after
sixteen days of the incident, the investigating officer had forwarded to him the
seized articles viz. knife, axe, sweater, banian for examination and to solicit
his opinion whether the injuries were possible by weapons therein such as
knife and axe.
12. During his cross-examination, it was categorically suggested to
him that he added two more injuries in the postmortem report (Exh.50), when
the deceased in fact had not suffered those injuries (Injury Nos. 1 and 2).
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According to him, the deceased would have survived, had he received the
treatment immediately, provided there was not loss of much blood.
13. PW 4 - Dr. Yashwant is a Medical Officer at Sub-District Hospital,
Omerga. He testified that on 08th January, 2014 he was on emergency duty.
By 08:30 p.m on the said day, a patient by name Manik Koli was brought by
his family members. There was history of stab injury on the very day by
07:45 p.m. at village Dapka. He examined the said patient. The patient was
in shock. Stab injuries on the abdomen, at left lumbar region. The same
might have been caused by a sharp pointed weapon like knife. The injury
was fresh. The same was life threatening injury. He, therefore, referred the
patient to Civil Hospital, Solapur. He had brought with him MLC register
before the trial Court. He issued the MLC certificate (Exh.79).
14. He further testified that at the same time he examined one lady
patient, Laxmibai. She had given history of assault with a stick by 07:35 p.m.
He examined her and found following injuries :-
"Abrasion/laceration/contusion towards left side femoral region calf
adm. 1.5 cm. by 0.5 cm."
The injury was fresh and simple and might have caused by blunt
object. He issued medical certificate (Exh.80).
15. During his cross-examination, he testified that at the same time he
examined appellant - Balaji and found the following injuries on his person :-
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"CLW left forear 4 x 1.5 cm., muscle tone."
The said injury might have been caused due to a sharp object. It
was fresh injury. He issued medical certificate (Exh.93). He denied the
defence suggestion that injury suffered by Manik might have been possible
by fall on sharp object.
16. PW 3 - Subhash was a witness to the crime scene panchanama
(Exh.66). According to him, the panchanama was drawn in his presence on
the following day. The place was in front of the house of PW 2 - Laxmibai
(informant). The police seized bangle pieces, a blade of axe, a wooden
handle of axe, blood mixed soil, etc.
17. The very person appears to be a panch to other various
panchanamas, such as arrest panchanamas of appellants - Datta, Manohar,
Balaji and Digambar (Exh.117 to 120). According to him, police seized
clothes on the persons of those four in his presence.
18. He was again a witness to a disclosure statement made by
appellant - Datta on the following day i.e. on 10 th January, 2014. According
to him, Datta gave a disclosure statement that he would take out the knife
hidden in a trashed leaves wall of his hut. His statement was recorded vide
Exhibit 71. He then took the police and panchas to his hut and took out the
knife. The police seized the same under panchanama Exhibit 72.
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19. During his cross-examination he testified that there was small
bridge at a distance of fifty feet from the house of Manik (deceased). No
panchanama of the place nearby the said bridge was drawn. He made a
vital statement to the effect that the police disclosed to the accused that he
should state the truth, otherwise he would obtain his police custody remand.
20. PW 2 - Laxmibai lodged the F.I.R. (Exh.56). She testified that on
08th January, 2014, she and Manik returned to their house by little past 08:00
p.m. after having worked in their field. She was engaged in cooking. Her
husband, Manik was in the house. Their children were studying. Appellant -
Datta came in front of their house and questioned Manik as to why he did not
allow him to take water of the well on that day. Manik tried to reason with
him and even asked to take water on the next day. However, Datta did not
listen. He entered the house and dragged Manik out of the house. All the
appellants came together immediately and started abusing Manik and even
beat him up with fist and kick blows. She intervened to rescue Manik. She
too was not spared. Manoher (deceased appellant) gave a stick blow on her
head. Datta assaulted on the stomach of Manik with a knife. While appellant
- Digambar inflicted on the head of Manik an axe blow. On hearing the
commotion, village Sarpanch and others came. They subsided the quarrel.
She herself and Manik were taken first to Sub-District Hospital, Omerga and
then shifted to Civil Hospital, Solapur. She further testified that police had
come to her in the hospital and recorded her statement. She referred
thereto, F.I.R. (Exh.56).
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21. She was subjected to a searching cross-examination. She
admitted that she is an accused in Sessions Case No. 31 of 2015 instituted
at the instance of appellant - Balaji. She denied Balaji to have suffered
injuries on that day. She denied that her husband - Manik (deceased) was
addicted to liquor. She even denied that on the given day he was under
influence of liquor. Her brother-in-law - Ashok, Tukaram and Manohar
(deceased appellant) would reside adjacent to each other. She could not
state names of the persons gathered at the spot of the incident on hearing
commotion. According to her, her son, PW 5 - Santosh intervened in the
quarrel. Others did not. According to her, Santosh too suffered muffle
injuries. Santosh too visited Sub-District Hospital, Omerga. He was
examined there. It was she herself, Santosh and her brother-in-law -
Tukaram, who took Manik to the hospital in an auto-rickshaw. She was
confronted with her F.I.R. (Exh.56) to bring on record omission therein that
she did not state to police, appellant - Datta to have entered her house.
According to her, she had stated accordingly. The police officer, who
recorded the same, however testified that it was not so stated. As such,
omission amounting to contradiction has been brought on record. She was
suggested that Manik (deceased) had attempted to assault appellant - Balaji
with an axe. Manik was under the influence of liquor. He went at the bridge
and fell down. As a result, he suffered injury. She denied these suggestions.
22. PW 7 - Vilas was the Assistant Police Inspector attached to
Omerga Police Station at the relevant time. On receiving information about
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the incident and particularly admission of two injured in the Sub-District
Hospital, Omerga, he went there. On examination of Laxmibai by the
medical officer there, he recorded her statement-cum-F.I.R. (Exh.56).
23. PW 5 - Santosh testified in consonance with the evidence of her
mother, PW 2 - Laxmibai (informant). According to him, appellant - Datta
came in front of his house and asked his father as to why he (Datta) was not
allowed to take water of the common well. Datta dragged his father out of
the house. Thereafter other appellants immediately arrived there. All of
them beat up his father with fist and kick blows. He was in the house that
time. He alongwith his mother and sister, therefore, came out of the house to
save his father. All the appellants abused them. According to him, Manohar
(deceased appellant), Datta and Anusaya beat him with stick, fist and kick
blows. Appellant - Vimalbai caught hairs of his sister - Pooja and slapped
on her face. While appellants - Digambar, Balaji and Anusaya beat up Pooja
with stick. Thereafter, all the appellants beat up his mother. Then all of them
caught hold of his father. The male appellants said, "vkt ;kyk [kYykl d#"
(Let us kill him today). Thereafter, appellant - Digambar assaulted on the
head of Manik with an axe. Appellant - Datta stabbed on the stomach of
Manik with a knife. On hearing commotion, other persons gathered there.
His father and mother were rushed to Sub-District Hospital, Omerga. He had
accompanied them. He identified the articles shown to him before the Court.
24. During his cross-examination he admitted that a criminal case is
pending against him before the Juvenile Justice Board, for assaulting
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appellant - Balaji. It was Balaji's case that he (Santosh) and his parents
assaulted him. Balaji suffered left forearm injury. He denied that his father
was under influence of liquor. He denied that his father was addict thereof.
He further denied that Manik tried to assault Balaji with an axe. He further
denied that Manik being heavily drunk, fell on his own near the bridge.
According to him, his mother did not suffer any bleeding injury. Nobody from
the neighbourhood was present while the incident was on. He intervened in
the quarrel. The rest of the questions were in the nature of defence of the
appellants.
25. PW 6 - Vishal was the resident of the village, Dapka. He
deposed that the incident took place little past 08:00 p.m. on 08th January,
2014. On hearing commotion, he came out of his house. He saw quarrel
between PW 2 - Laxmibai, PW 5 - Santosh and Pooja on one hand and
appellants - Datta, Digambar, Manohar and Digambar's mother on the other.
They were abusing and beating Santosh and Pooja. He intervened to settle
the quarrel. People gathered. He went on to testify that about twenty feet
away from that place there was a bridge whereat Manik, husbant of
Laxmibai, was lying injured. According to him, the injured were rushed to the
hospital.
During his cross-examination he denied that it was not possible
for him to state who abused who.
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26. PW 8 - Ghuge, was the Police Officer, who conducted inquest
(Exh.108). It is he, who delivered the dead body of Manik to his widow -
Laxmibai. His evidence does not further the prosecution case.
27. PW 9 - Ramhari, did investigation of the crime. According to him,
he drew the crime scene panchanama (Exh.66), arrested the appellants,
seized clothes on their person, obtained opinion of the Medical Officer by
forwarding articles seized, etc. Since the evidence of this witness was in the
nature of steps to be taken during investigation and the same has already
been reflected in the evidence of all other witnesses referred to herein above,
we do not propose to refer to his further evidence in extenso. He was
suggested to have threatened appellant - Datta to obtain his thumb
impression or signature on the false memorandum and seizure panchanama.
28. The appellants examined a defence witness. He is DW 1 -
Tukaram, brother of Manik (deceased) and Manohar (deceased appellant) as
well. He testified that his brother - Manik was addicted to liquor. The
incident took place by 08:30 p.m. on 08th January, 2014. His grandson
informed him that Manik was lying by the side of the bridge. He, therefore,
went there. The crowd had already gathered. He brought Manik to his
house.
He was subjected to cross-examination by learned A.P.P. The
prosecution version was put to him in the cross-examination. He denied the
same.
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Appreciation :-
29. Aforesaid is the evidence in the case. The postmortem report
(Exh.50) indicates Manik died of stab injury (single injury). The same was
said to have been caused by appellant - Datta. Two more injuries were said
to have been noticed during postmortem examination. It was specifically
suggested to PW 1 - Dr. Rode that he added those two injuries at the
instance of family members of the deceased. He was bound to deny the said
suggestion. The fact, however is that within minutes of the incident both, PW
2 - Laxmibai and Manik (deceased) were brought to Sub-District Hospital,
Omerga. It was PW 4 - Dr. Yashwant, who examined both of them and
issued medical certificates. The injury certificate of the deceased issued by
him on the very day of the incident finds place at Exhibit 79. He noticed only
one injury in the nature of stab to abdomen (left lumber region). He,
therefore, referred the injured to Civil Hospital, Solapur. It is surprising as to
how the first two injuries shown in the postmortem report went unnoticed by
this medical officer, who too is an independent and uninterested witness.
There is injury certificate of PW 2 - Laxmibai. According to her, Manohar
(deceased appellant) had hit on her head with a stick. The injury certificate
of PW 2 - Laxmibai issued by PW 4 - Dr. Yashwant is on record at Exhibit
80. The said injury is in the nature of abrasion/laceration on left side
temporal region. It was simple in nature and caused with blunt object.
30. PW 4 - Dr. Yashwant had examined appellant - Balaji at the
same time by which he examined Manik (deceased) and PW 2 - Laxmibai.
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He noticed CLW. He issued injury certificate (Exh.93) indicating Balaji to
have suffered injury on the same day.
31. The prosecution witnesses viz. PW 2 - Laxmibai and PW 5 -
Santosh are the relations of the deceased and claimed to be victims as well.
It is true that evidence of injured witness carries much weight. They are,
however relations of the deceased. It is also true that victims do not
implicate innocent persons sparing real culprits. The tendency is, however to
give exaggerated version and implicate one and all the members of family.
In the case in hand, the appellants are none other than the parents and their
four children. No one of their family has been spared. When PW 5 -
Santosh claimed to have suffered injury and visited hospital, his injury
certificate is not on record. His sister - Pooja too was said to have suffered
beating. She was not examined nor her injury certificate has been produced
in evidence. Had all the appellants really assaulted PW 2 - Laxmibai with fist
and kick blows, there would have been number of injuries on her person.
Both, PW 2 - Laxmibai and PW 5 - Santosh have also gave a false evidence
as regards Manik (deceased) to have been teetotaller.
32. PW 1 - Dr. Rode, had preserved viscera. He tendered in
evidence viscera report indicating 103 ml of ethyl alcohol per 100 gm was
found in the blood of the deceased. The same falsifies the claim of the
witnesses, who deposed that the deceased was not addicted to liquor. On
the same day appellant - Balaji suffered injury, might not be serious one.
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His injury certificate (Exh.93) is on record. PW 2- Laxmibai, PW 5 - Santosh
and Manik (deceased) were, therefore, charged with an offence of attempt to
commit murder. What has happened with the said case is not known. Same
suggests the prosecution has not disclosed either genesis of the case or
exaggerated version. It is said, "When war breaks out, truth is the first
casualty". Evidence of PW 6 - Vishal is not of much importance since he did
not witness appellant - Datta to have stabbed on the stomach of the
deceased with a knife and appellant - Digambar assaulted on the head of
the deceased with an axe. His evidence simply indicates that there was
quarrel between the members of two families, wherein Manik (deceased)
was not present. According to him, Manik (deceased) was lying near a
bridge which was small distance away from the place of quarrel. The
prosecution did not declare this witness to have not been supporting it.
33. When the prosecution comes with a case of appellant - Digambar
to have assaulted on the head of the deceased with an axe, it is generally
presumed that the assault is made with the sharp side of the blade of the
axe. The injury noticed on the head of the deceased was said to have been
caused by hard and blunt object like handle of the axe. True, during the
crime scene panchanama (Exh.66), axe handle, stick and blade of the axe
were separately seized. The injury is simple in nature. It is, however not
known as to why PW 9 - Ramhari, Investigating Officer, kept these articles
with the police station until 28th January, 2014 i.e. for twenty (20) days and
not sent immediately to R.F.S.L. The evidence of PW 1 - Dr. Rode indicates
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that those articles were sent to him by PW 9 - Ramhari, Investigating Officer
on 25th January, 2014 to solicit his opinion as to whether the injuries suffered
by the deceased were possible with those articles. The evidence of PW 1 -
Dr.Rode is silent to state that while those articles were sent to him, those
were in sealed condition. There is no evidence at all to indicate who carried
those articles in sealed condition to PW 1 - Dr.Rode, who opened the seal, if
any, and again packed and sealed them. Had appellants - Datta and
Digambar intended to eliminate Manik, they would have rained further blows
of knife and axe or axe handle on him. The evidence on record indicates that
a quarrel took place between some of the family members of both the
brothers, wherein appellant - Datta stabbed Manik (deceased), as a result of
which Manik breath his last. Same time appellant - Balaji suffered injuries.
We have already observed that the prosecution witnesses were interested
and economical with truth as well. Two of the appellants, viz. Datta and
Digambar are behind the bars for little over ten years. We are conscious of
the fact that one person has lost his life. The fact is, however that the
deceased, his wife - PW 2 Laxmibai and son - PW 5 Santosh are also
being prosecuted for attempting to commit murder of appellant - Balaji. It is
reiterated that what has happened with the said case is not known. PW 6 -
Vishal's evidence only indicates that female appellants had a quarrel with
PW 2 - Laxmibai and PW 5 - Santosh. Possibility of manhandling each
other could not be ruled out. The one, who assaulted PW 2 - Laxmibai on
her head with a stick, is passed away pending the appeal.
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34. On appreciation of the evidence, we are unable to agree with the
conclusion of the trial Court that all the appellants had formed an unlawful
assemble, common object of which was to commit murder of Manik and
cause grievous injuries to his family members, PW 2 - Laxmibai and others.
On re-appreciation of the evidence on record, we find that there was quarrel
between the two brothers and their family members as well. The appellants,
therefore, could be said to have formed unlawful assembly with the common
object to cause hurt. There is nothing to indicate that all the appellants,
except Datta, were in the know that Datta was going to inflict a knife blow to
the deceased, which ultimately proved fatal. It was a single blow. The same
was inflicted during the quarrel. Appellant - Digambar was said to have
assaulted on the head of the deceased with an axe. But the said injury was
said to have been caused with a hard and blunt object. We take it that it was
caused with a stick. Although it was a vital part of body of the deceased,
there is nothing further to indicate appellant - Digambar to have given him
further blows to translate his intention into action i.e. committing murder.
35. For all the aforesaid reasons, we are not at one with the
conclusion recorded by the trial Court regarding convicting the appellants for
the offence punishable under Section 302 read with Section 149 of the I.P.C.
In our view, appellant - Datta, due to whose assault the deceased died,
could be said to have committed culpable homicide not amounting to murder
falling under Part I of Section 304 of the I.P.C. Exception 4 of Section 300 of
the I.P.C. comes to his rescue, which reads thus :-
APEAL-446-18.odt
"Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden
quarrel and without the offender having taken undue advantage or
acted in a cruel or unusual manner."
36. Appellant - Digambar could be said to have voluntarily caused
hurt to the deceased with a dangerous weapon like handle of an axe. He
would, therefore, be said to have committed an offfence punishable under
Section 324 read with Section 149 of the I.P.C. So far as assault on PW 2 -
Laxmibai is concerned, the concerned appellant (Manohar) is no more. Her
evidence is not wholly reliable. Had rest of the appellants beaten her up with
fist and kick blows, number of injures would have been noticed on her
person.
37. In view of above, we are inclined to partly allow the appeal setting
aside the entire impugned order of conviction and consequential sentences
and substituted it in terms of following order :-
ORDER
(I) Criminal appeal is partly allowed.
(II) Impugned judgment and order dated 14th May, 2018
passed by the Court Addition Session, Omerga in
Sessions Case No. 25 of 2014 thereby convicting the
appellants for the offences punishable under Sections
302, 323 and 506 r/w 149 of the Indian Penal Code, is
hereby set aside.
(III) All the appellants are acquitted thereof.
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(IV) Appellant - Datta Manohar Jamadar is convicted for the
offence punishable under Section 304 Part I of the Indian
Penal Code, and therefore, sentenced to suffer
imprisonment for ten years and pay fine of Rs.1,000/-
(Rupees One Thousand), in default of payment of fine, to
undergo rigorous imprisonment for six months.
(V) Appellant - Digambar Manohar Jamadar is convicted for
the offence punishable under Section 324 of the Indian
Penal Code, and therefore, sentenced to suffer rigorous
imprisonment for three year and pay fine of Rs.500/-
(Rupees Five Hundred).
(VI) All the appellants are convicted for the offence
punishable under Section 143 of the Indian Penal Code
and thereby sentenced to suffer rigorous imprisonment
for six months with fine of Rs.500/- (Rupees Five
Hundred) each.
(VII) All the appellants are convicted for the offences
punishable under Sections 147 and 148 of the Indian
Penal Code and thereby sentenced to suffer rigorous
imprisonment for nine months with fine of Rs.500/-
(Rupees Five Hundred) each.
(VIII) All the substantive sentences to run concurrently.
(IX) It appears that appellants Datta Manohar Jamadar and
Digambar Manohar Jamadar have been behind the bars
for little over ten years and as such have served the
entire sentence. They, therefore, be released forthwith, if
not required in any other case.
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(X) So far as appellants Balaji Manohar Jamadar, Vimalbai
Manohar Jamadar and Anusaya Datta Ghate are
concerned, they are on bail. They found to have served
the entire sentence, and therefore, need not surrender
back to jail. Their bail bonds stand cancelled.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
