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2013 DIGILAW 1846 (BOM)

Kalidas Dagadu Dambare v. State of Maharashtra

2013-09-09

A.H.JOSHI

body2013
JUDGMENT :- The accused were charged for commission of offence Under Section 302 read with Section 34 of the Indian Penal Code. 2. It is alleged that accused persons committed criminal trespass by entering into the land Gat No.340 with intention to intimidate, insult or annoy the complainant Vasant Rangnath Pawar and gave provocation to deceased Namdeo Pawar and ultimately assaulted him by handle of the Axe. 3. None present for the appellants. Heard learned API. Perused the record. 4. Death of Namdeo is duly proved. The cause of death in the post mortem examination is shown as follows:- "Shock and hemorrhage due to head injury." 5. Prosecution has examined 15 witnesses. Two witnesses cited by the prosecution namely PW-3 Prakash Sitaram Kadam and PW-4 Baliram Sitaram Kadam have deposed in the examination in chief itself that they had arrived at the spot on hearing the loud voice. Except PW-2 Vasant Pawar ail other witnesses pertain to recover, arrest panchanama, investigation etc. 6. The case thus rests soiely on the testimony of PW-2. 7. The text of the version of PW2 Vas ant Pawar reads as follows:- "Namdeo was saying that as per rotation he is entitled to fetch water. Accused No.2 had caught hold the neck of the Namdeo and pulled him down. The accused Nos.2 gave 2-3 blows with the axe over the eye and head of Namdeo. The accused No.1 gave blow with the stick over legs, hand and head of Namdeo. I was at a distance of 20 to 25 ft. from them. I was crying. The deceased Namdeo was also crying. Baliram Sitaram and Prakash Sitaram had come at the spot running from our opposite direction. As soon as Prakash and Baliram reached at the spot the accused Nos. l and 2 ran away from the spot along with stick and axe." (quoted from page No.45 of the examination in chief of PW-2 Vasant Pawar). 8. In the cross examination, this witness was suggested that:- There were two groups in the village. Victim and PW-2 belong to one group. On the day of incident, there was a quarrel over the supply of water. In the process of quarrel deceased Namedo had pelted stone on the accused. Due to the quarrel and an effort of assault by the deceased Namdeo, accused No.2 assaulted the deceased by way of defence. 9. Victim and PW-2 belong to one group. On the day of incident, there was a quarrel over the supply of water. In the process of quarrel deceased Namedo had pelted stone on the accused. Due to the quarrel and an effort of assault by the deceased Namdeo, accused No.2 assaulted the deceased by way of defence. 9. The learned Sessions Judge held that:- The evidence led by the prosecution was adequate enough to prove the guilt of the accused, and in the background that presence of accused is not disputed by the accused persons. The testimony of PW-2 was reliable and his evidence was also corroborated by prosecution witnesses Nos.PW-3 Prakash and PW-4 Baliram. The witnesses PW-3 and PW-4 could not be disbelieved on account of their being relatives. The guilt of accused was duly proved. 10. After re-appreciation of evidence, this Court finds that though the PW3 and PW-4 are cited as witnessed and are believed by the Sessions Court, the version of these two witnesses turns out to be hearsay to the extent of involvement of the accused perscl1s in the act of assault that too causing voluntarily or without any intimidation. At the most both these two witnesses prove the presence of the accused persons on the scene of offence and no other fact. 11. In the background discussed herein before the case now rests solely on the testimony of PW-2 Vasant Pawar. 12. Considering the admission given by the witness Vasant Pawar about existence of rivalry between victims and accused and that a quarrel had erupted, in the facts and circumstance's of the case, it appears to be too risky to rely on sole testimony of Vasant Pawar. This risk is palpable particularly in the background that the PW-2 has named two witnesses as eye witnesses while they are not the eye witnesses. 13. The accused himself admits that by way of defence, he had assaulted Namdeo. The magnitude of assault by way of defence will depend on the action of assault of which the defence of accused was are-action. The reflex and the impact of defence required would depend solely on the impact of assault. At the most it may be suggested that the accused was guilty exceeding in defence. 14. The magnitude of assault by way of defence will depend on the action of assault of which the defence of accused was are-action. The reflex and the impact of defence required would depend solely on the impact of assault. At the most it may be suggested that the accused was guilty exceeding in defence. 14. The story suggested by the accused that by way of defence, he had to charge the assault appears to be believable particularly on account of the fact that the offence is sought to be proved by the prosecution on sole testimony. 15. Therefore, the accused-appellants are not liable to be convicted for offence under Section 304 second part of the Indian Penal Code in place of Section 302 of the Indian Penal Code. 16. It is seen that accused had undergone imprisonment for four months. The incident had occurred in 1991. By now, 23 years have passed and severe sentence would not be justified. Pendency of appeal for two decades itself is a punishment. 17. In the result, appeal succeeds and is allowed in following terms: (a) The conviction is reduced and is modified to Section 304 second part of the Indian Penal Code. (b) No separate sentence is ordered for offence of criminal trespass and intimidation. (c) The sentence which is al ready undergone by the accused shall be sufficient. (d) The appeal is partly allowed by modifying the sentence and conviction. Appeal allowed.