High Court
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CriAppeal-581-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 581 OF 20021.Ramesh s/o Nana Mali,Age : 38 years, Occ: Agri.,R/o. More Chinchore,Taluka Newasa, District Ahmednagar.2.Sambha s/o Nana Mali,Age : 34 years, Occ: Agri.,R/o. More Chinchore,Taluka Newasa, District Ahmednagar.3.Popat s/o Nana Mali,Age : 29 years, Occ: Agri.,R/o. More Chinchore,Taluka Newasa, District Ahmednagar.… Appellants[Orig. Accused]VersusThe State of MaharashtraThrough Police Inspector,Sonai Police Station, Taluka Newasa,District Ahmednagar.… Respondent…..Mr. V. P. Golewar, Advocate for Appellant No.1Mr. R. S. Shinde, Advocate h/f Mr. V. P. Latange, Advocate for Appellant Nos. 2 and 3.Mr. N. D. Batule, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 06.03.2024Pronounced on: 18.03.2024 CriAppeal-581-2002-2- JUDGMENT : 1.Judgment and order of conviction dated 30.09.2002 passed inSessions Case No. 45 of 2000 for offence punishable under Section304 Part II r/w 34 of the Indian Penal Code [IPC], is taken exceptionto by way of instant appeal.FACTS LEADING TO TRIAL ARE AS UNDER2.Informant and accused are brothers. Their father, i.e. deceasedNana owned 22 acres of land, out of which 7 acres came to beacquired for dam purpose and remaining 15 acres was in possessionof deceased. The said land was partitioned by father in favour of sons.Accused wanted share in the land which was towards east-westdirection and on that background, they used to raise quarrel.3.On 22.05.2000, all accused persons came in a tractor andstarted ploughing the land towards east-west direction. PW3informant Suresh objected. At that time, accused Sambha hit himwith bamboo on the backside, accused Ramesh hit him with a stickcausing him fracture injury. Accused persons chased informant Sureshtowards his house and on reaching there they pushed deceased Nana
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CriAppeal-581-2002-3- with stick. When informant Suresh and deceased Nana startedproceeding towards police station for giving complaint, accusedpersons beat deceased Nana with stick. As a result of which, hebecame unconscious. PW3 approached police and took an ambulanceto shift father to the hospital, but on reaching hospital, his father wasexamined and declared dead. Therefore, he lodged complaint Exhibit27.4.PW9 API Milind Khodve, who was entrusted with theinvestigation, carried out investigation and on its completion,chargesheeted accused, who were tried by learned IInd AdditionalSessions Judge, Shrirampur, who, on appreciating evidence, acquittedaccused nos. 1 to 3 from charge under Sections 302, 324 and 504 r/w34 of IPC, however, they were held guilty of committing offencepunishable under Section 304 Part II r/w 34 of IPC and sentenced tosuffer five years’ rigorous imprisonment and to pay fine. Hence theappeal.SUBMISSIONSOn behalf of appellant no.1:5.In brief, learned counsel Mr. Golewar for appellant/accusedno.1 Ramesh would submit that there is false implication. Secondly,there is no independent witness and only interested witnesses are CriAppeal-581-2002-4- examined. He pointed out that no role is attributed to accused no.1and he is not shown to be armed with any article. He pointed out thateven otherwise deceased had suffered injury on the back. Accordingto him, PW8 Asha (daughter of deceased) and PW2 Nabaji (pancha tospot panchanama) did not support prosecution. Seizure is not proved.Therefore, conclusion of guilt arrived at by learned trial Judge is inabsence of any cogent, reliable evidence. Therefore, he prays to allowthe appeal by setting aside the impugned judgment.On behalf of appellant nos. 2 and 3 :6.Learned counsel for appellants/accused nos. 2 and 3 has alsocriticized the prosecution case as well as the judgment underchallenge submitting that PW2 Nabaji, PW4 Namdeo and PW6 Sanjayhave not supported prosecution. Seizure is not proved. There is noindependent evidence. That, there is erroneous appreciation as, atsome point, learned trial court has doubted prosecution version, buton the other hand, accepted the same. Therefore, such judgmentcannot be allowed to be sustained and hence he prays to allow theappeal by setting aside the impugned judgment. CriAppeal-581-2002-5- On behalf of the State :7.Per contra, learned APP submits that evidence of prosecution isclear, cogent and firm about very sons of deceased insisting forparticular side of agricultural land. On that count, they initiallyassaulted Suresh, i.e. their own brother, and later on they chased himtowards house and there they beat other brother Vishwas as well astheir father. That, father died because of assault by sticks. Medicalevidence supports the same. There is injured witness account whichhas remained unshaken. Accused had come with particular intentionof carrying out assault. Therefore, they are all responsible underSection 34 of IPC. That, learned trial court has correctly appreciatedthe evidence and no fault can be found in the appreciation and hence,he prays to dismiss the appeal.EVIDENCE BEFORE THE TRIAL COURT8.Following witness are examined by prosecution :PW1Ramdasm has acted as pancha to inquest panchanama Exhibit24.PW2Nabaji is pancha to spot panchanama, but he has notsupported prosecution. CriAppeal-581-2002-6- PW3Suresh, son of deceased, stated that he and accused are realbrothers. His father had two brothers, namely Bhoru andAnshoba. He deposed about his father owing 22 acres land,out of which 7 acres being acquired for dam, compensationbeing received, remaining 15 acres land being partitionedamongst five brothers and accused brothers living separately,but they were insisting for land towards east-west directionupon partition. Regarding the incident, he stated that on22.05.2000 around 10.00 a.m., all accused came in a tractorand started ploughing land from east-west direction. Herequested them not to plough. That time, he was beaten byaccused Sambha with banboo and accused Ramesh hit himwith stick. Thereafter, when he ran home, he deposed that,accused chased him towards his house. They pushed his fatheron his stomach. While he and his father were proceedingtowards police station for lodging complaint, they were chasedand intercepted by accused by holding sticks in their hand.Accused Sambha beat his father by stick, upon which fathersat on the ground and became unconscious. He approachedpolice, who arranged for ambulance and his father was takento Rural Hospital, Newasa, but was declared dead on reachinghospital. Therefore, he lodged complaint.PW4Namdeo, pancha to seizure of clothes, did not supportprosecution.PW5 Vishwas, another son of deceased Nana, deposed that incidenttook place on 22.05.2000. He also deposed about accused CriAppeal-581-2002-7- coming in tractor, his brother when inquired with accused asto why they brought tractor, he was beaten. Accused chasedhis brother towards home. All accused beat this witness, hiswife, his father, brother Suresh and sister by sticks. Thereafter,when this witness, brother Suresh and father Nana wereproceeding towards police station, all accused came frombackside and them. Due to beating, his father fell down on theground and he had suffered injuries on stomach, neck, legs.On examination in rural hospital, his father was declareddead.PW6Sanjay, pancha to memorandum of disclosure, but he did notsupport prosecution.PW7 Manoj Ghuge is the doctor who conducted postmortem ondeceased and issued report and opined that death was due tospinal shock due to fracture of cervical spine.PW8Asha, sister of informant and daughter of deceased Nana, didnot support as she claimed that out of fear, she kept herselfhiding in the house.PW9API Milind Khodve is the Investigating Officer.ANALYSIS9.Though 9 witnesses were examined by prosecution, going bythe story, evidence of PW3 informant Suresh and his brother PW5 CriAppeal-581-2002-8- Vishwas is of significance. They both claim to be victims of assault.Evidence of Suresh shows that he was alone in the field when accusedpersons allegedly came in a tractor. When he objected, he hasattributed assault to Ramesha and Sambha for beating him withbamboo and stick. When he ran home, he claims that accused chasedhim. According to him, his father was pushed at his stomach by use ofstick, and thereafter, when he, brother Vishwas and father wereproceeding towards police station, his father, who was behind them,was beaten by accused persons. His evidence finds support from thetestimony of Vishwas. They both are speaking about all accusedmounting assault. They are alleging beating given to them also.Therefore, they are injured eye witnesses. The incident had takenplace in the broad day light. Accused persons had entered into thatpart of the land regarding which there was dispute and they hadcome there armed with sticks. The very act of chasing Suresh towardshouse after beating him in the field and thereafter again beatingfather and these two witnesses clearly show that they weredetermined and they had carried common intention. Therefore, byinvoking Section 34 of IPC, they all can be tied down. Taking intoconsideration the backdrop in which the incident took place, it beingnot a case of homicide, they are rightly held guilty for offence underSection 304 Part II of IPC. Participation of all has already come on CriAppeal-581-2002-9- record in the testimony of both, Suresh and Vishwas. Their evidenceto that extent has remained unshaken and is not rendered doubtful inspite of cross-examination. Therefore, offence under Section 304 PartII of IPC is made out by prosecution against appellants.10.PW7 doctor, who had conducted postmortem, has opined deathto be due to spinal shock due to fracture of cervical spine. Therefore,death is the consequence of the assault at the hands of accused.11.Perused the judgment under challenge. Learned trial court hascorrectly appreciated both, oral and documentary evidence. Noillegality or perversity is brought to the notice so as to causeinterference. Hence, there being no merit in the appeal, I proceed topass the following order:ORDERThe appeal is hereby dismissed. [ABHAY S. WAGHWASE, J.]12.On pronouncement of this judgment, both learned counsel forthe respective appellants pray for four weeks time to surrender so asto enable them to approach the Hon’ble Apex Court. CriAppeal-581-2002-10- 13.Learned APP strongly opposes the same.14.Considering the above request made by learned counsel for theappellants, four weeks time is granted for the appellants to surrender. [ABHAY S. WAGHWASE, J.]vre