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2013 DIGILAW 1902 (BOM)

Khandu Kondiba Dhamal v. Khandu Kondiba Dhamal

2013-09-19

A.H.JOSHI

body2013
JUDGMENT 1) Accused no.3 is reported dead and the appeal against him is abated. 2) This Appeal is directed against the judgment and order dated 16th May 1994 passed by the learned Joint District Judge and Additional Sessions Judge, Satara in Sessions Case No. 99 of 1987 convicting the accused for offences punishable under Section 325 read with section 34 and Section 304(II) read with Section 34 of the Indian Penal Code. 3) The incident had occurred on 10th June 1987 at about 9.00 p.m. in which Maroti Jayaba Dhamal suffered head injury and he ultimately died. 4) Accused Nos.1 to 3 were tried in Sessions Case No. 99 of 1987. They were charged for an offence punishable under Section 302 read with section 34 and Section 325 read with section 34 of the Indian Penal Code. 5) Crime No. 62 of 1987 was registered in Khandala police station on the report lodged by the first informant- Narayan Maroti Dhamal. 6) After investigation, the charge-sheet was submitted and the case was committed before Sessions Court and was tried as Sessions case No. 99 of 1987. After framing the charge for offences punishable under aforesaid sections the accused were tried. 7) The prosecution has examined in all 9 witnesses. Out of which PW-1 and PW-2 are panch witnesses. PW-8 and PW-9 are the Police witnesses. PW-3 is the first informant. PW-5 is wife of PW-3. The other witnesses were present in the vicinity and are cited as eye witnesses. 8) Heard learned advocate for the appellant and the learned APP for the State. Perused the notes of evidence and documents contained in the paper book. 9) It is seen that PW-1 and PW-2 are declared hostile. PW-9 has proved FIR and the investigation. 10) On reading testimony of various witnesses, their role is as follows: (a) PW3 and PW-5 are the eye witnesses. (b) Testimony of PW-4 and, 6 and 7 reveals that they had approached the seen of offence after the assault was completed, however these witnesses prove the presence accused persons. (c) PW-3 and PW-5 prove that there existed dispute between the parties. The dispute was going on since earlier, that the incident occurred on 10th June 1987 at 9.00 p.m., and that the assault was caused on the victim mainly by accused no.1. (c) PW-3 and PW-5 prove that there existed dispute between the parties. The dispute was going on since earlier, that the incident occurred on 10th June 1987 at 9.00 p.m., and that the assault was caused on the victim mainly by accused no.1. 11) Learned Sessions Judge has recorded a finding on Point no.2 at para No.24 which reads as follows: "A pair of sticks have been produced in Court. It was the case of prosecution that it was by these sticks which were held by accused persons and were used in the crime. They have been stated to have been discovered by the accused no.1 Khandu under discovery memo Exh.35. The Panchas examined by prosecution viz. Mahadeo Bhiku Pawar (PW-1) and Sitaram Baburao Pawar (PW-2) however, did not support, thus recovery of the sticks from the accused no.1 has not been established. Nor there are blood stains or any identification to show that these were the sticks which were used in the crime. This however does not affect the prosecution case in view of the trustworthy oral evidence of the eye witnesses that the accused persons assaulted the deceased as well as the complainant Narayan. There is documentary evidence to show that the deceased Maruti died of the injuries caused by the accused persons. Under the circumstances, my finding to Point no.2 is also in the affirmative." (Text is quoted from Page Nos. 291-292 of the paper book.) 12) It is seen that the learned Sessions Judge had disbelieved the case of the prosecution on point of intention to cause death. 13) Now, upon re-appreciation of evidence, this Court has arrived at conclusion that:- (a) The evidence against the accused no.2 is not specific. (b) The evidence collected by the prosecution against the accused no.2 and brought before the court is not adequate to convict and sentence him for offence whatsoever. (c) The accusation against accused no.1 is also short of proving the charge, even under Section 304. (d) The presence of the accused no.1 is proved and assault is also proved, it could at the most be a an offence of casing hurt by use of sticks. (e) In the back ground that there was a quarrel and due to sudden provocation and/or it was intimated act, the accused no.1 is held to be involved in commission of offence. 14) The accused no. 2 is acquitted. (e) In the back ground that there was a quarrel and due to sudden provocation and/or it was intimated act, the accused no.1 is held to be involved in commission of offence. 14) The accused no. 2 is acquitted. Fine if any paid by the accused no. 2 be refunded. 15) The accused no. 1 is liable to be convicted under section 324 of the Indian Penal Code. Considering that incident had occurred in 1987 and the appeal is being heard after 25 years, pendency of trial and appeal has served as adequate punishment apart from imprisonment already undergone by the accused no.1. 16) In the result, the appeal is partly allowed and following order is passed: The conviction and sentence is modified in terms of forgoing paragraph nos. 14 and 15.