Jalgaon VERSUSThe State of Maharashtra and Others v. A. Chavan h
Case Details
2025:BHC-AUG:18173-DB {1} criapel441-16.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.441 OF 20161.Sandip @ Aabya Kalu Patil APPELLANTSAge – 32 years, Occ – Agriculture2.Vijay @ Bhurya Kalu PatilAge – 28 years, Occ – AgricultureBoth R/o Bhamre KhurdTaluka – Chalisgaon, District – Jalgaon VERSUSThe State of Maharashtra and Others RESPONDENTS.......Mr. V. A. Chavan h/f Mr. D. R. Deshmukh, Advocate for AppellantMr. S. J. Salgare, APP for Respondent - State ....…WITHCRIMINAL APPEAL NO.469 OF 2016Anil Adhar Patil APPELLANTAge – Major, Occ – AgricultureR/o Bhamre (Khurd)Taluka – Chalisgaon, District – Jalgaon VERSUS1.The State of Maharashtra RESPONDENTSThrough Police Officer, Police Station, ChalisgaonTaluka – Chalisgaon, District – Jalgaon 2.Sandip @ Aabya Kalu Patil Age – 32 years, Occ – Agriculture3.Vijay @ Bhurya Kalu PatilAge – 28 years, Occ – AgricultureBoth R/o Bhamre Khurd
Legal Reasoning
{2} criapel441-16.docTaluka – Chalisgaon, District – Jalgaon .......Mr. Mayur V. Salunke, Advocate for AppellantMr. S. J. Salgare, APP for Respondent - State Mr. V. A. Chavan h/f Mr. D. R. Deshmukh, Advocate forRespondents No.2 and 3....…WITHCRIMINAL APPEAL NO.497 OF 2016The State of MaharashtraAPPELLANTThrough Chalisgaon Police StationTaluka – Chalisgaon, District – Jalgaon VERSUS1.Sandip @ Aabya Kalu Patil RESPONDENTSAge – 32 years, Occ – Agriculture2.Vijay @ Bhurya Kalu PatilAge – 28 years, Occ – AgricultureBoth R/o Bhamre KhurdTaluka – Chalisgaon, District – Jalgaon .......Mr. S. J. Salgare, APP for Appellant - StateMr. V.A.Chavan, h/f Mr.D.R.Deshmukh, Advocate for Respondents ....… [CORAM : NITIN B. SURYAWANSHI, & SANDIPKUMAR C. MORE, J. J.] DATE : 3 rd JULY, 2025 JUDGMENT :1.Criminal Appeal No.441 of 2016 is filed by the originalAccused Nos.1 and 2 challenging their conviction, for the offencepunishable under section 302, 341 read with 34 of the Indian {3} criapel441-16.docPenal Code, in Sessions Case No. 225 of 2013, by learnedAdditional Sessions Judge, Jalgaon thereby sentencing themimprisonment for life with fine of Rs.5000/- each with defaultclause.2.Criminal Appeal No. 497 of 2016 is preferred by the Stateunder section 377 of the Criminal Procedure Code and CriminalAppeal No. 469 of 2016 is filed by the informant under section372 of the Criminal Procedure Code, for enhancement ofsentence.3.Facts, as are necessary for deciding these Appeals, can bestated thus -Anil Adhar Patil (PW-1) lodged FIR (Exhibit-42) on 18th July,2013 alleging that, at about 10.00 a.m., he had gone towardsSarve Dam for grazing cattle. His cousins, Sandip Madhukar Patil,Pradeep Madhukar Patil and Jaywant Madhukar Patil weresupplying manure to cotton crop. At about 3.00 p.m., he heardnoise of quarrel from the road situated near the field of KaluGojar Patil. He saw that, Accused No.1 Sandip Kalu Patil andAccused No.2 Vijay Kalu Patil, were beating his cousin Sandip onhands and legs, by means of iron pipes, therefore, he rushedthere. He was followed by other cattle grazers, namely SanjaySahebrao Patil, Nimba Devram Patil (PW-2) and Devidas Vithal {4} criapel441-16.docPatil. Seeing them, Accused Nos.1 and 2 fled from the spottowards Neri – Bhamre Road, on their motorcycle. Anil, (for short‘informant’), on reaching the spot, noticed that Sandip (for short“deceased”) was lying by the side of the road and there wereinjury marks on his legs and hands caused by iron pipes andblood was oozing from some of the injuries. On asking, thedeceased told him that when he was proceeding towards hishouse for watering cattle, Accused Nos.1 and 2 obstructed hismotorcycle and on account of dispute which aroused prior to twoyears, due to loading sugarcane in a vehicle, beat him(deceased) on hands, legs as well as on stomach, by means ofiron pipes. The informant informed the incident to the brothers ofthe deceased, namely Pradeep (PW-5) and Jaywant on phone andasked them to come with bullock cart. When Sandip (deceased)was carried in the bullock cart, towards village Bhamre, henarrated the incident of assault to PW-5 Pradeep and Jaywant.Then the deceased was taken to Sai Krushna Hospital,Chalisgaon at 4.40 p.m. in Piaggeo rickshaw of DashrathDadabhau Patil. The doctor, on medical examination, advised toshift him to Dhule for further treatment. Accordingly, they tookthe deceased to Dhule in an Ambulance. At about 5.45 p.m. thedeceased expired at Dhule Square and, therefore, without takinghim to Dhule, they brought the deceased back to Chalisgaon and {5} criapel441-16.docthe informant lodged the FIR to Chalisgaon Police Station, whichwas registered at Crime No.223 of 2013 for offence punishableunder sections 302, 341 read with 34 of the Indian Penal Code,on 18th July, 2023 at 20.15 hours. On completion of theinvestigation, charge sheet was filed. Charge for offencepunishable under sections 302, 341 read with 34 of the IndianPenal Code was framed against the Accused. They pleaded notguilty. 4.In support of its case, the prosecution examined 15witnesses. The defence of the Accused was of total denial. Onappreciation of the evidence, the Trial Court convicted theAccused as above. Hence, the Accused filed Criminal Appeal No.441 of 2016.5.Learned Advocate for the Accused assailed the impugnedjudgment and order of conviction stating that, PW-1 and PW-2,the alleged eye-witnesses, are the got up witnesses. PW-1, beingcousin of the deceased, is an interested witness. Both thesewitnesses were at a distance, so it cannot be said that they havewitnessed the incident. Since both these eye-witnesses have notintervened in the incident, to save the deceased, their conduct isagainst natural human conduct and, therefore, their evidenceshould be disbelieved. It is submitted that, the Trial Court has {6} criapel441-16.docwrongly appreciated the evidence on record and has erred inrecording the conviction. The alleged incident, over loadingsugarcane in vehicle, had taken place two years before and,therefore, that cannot be said to be a motive for the Accused tocommit the murder. It is further submitted that, there arematerial omissions and contradictions in the statements ofprosecution witnesses and, therefore, their evidence is liable tobe disbelieved. In the alternate, it is submitted that even if theprosecution case is accepted as it is, the Accused are liable to bepunished for lesser offence.6.Per contra, learned APP supported the impugned judgmentof conviction. He submitted that, evidence of PW-1 and PW-2 isconsistent and corroborates each other. They both speak abouteach others’ presence. They are consistent on the point ofmanner in which the incident has taken place and actualweapons used by both the Accused. Medical evidencecorroborates the versions of the eye-witnesses. Oral dyingdeclaration made by the deceased to his brother Pradeep (PW-5)is also corroborated by PW-1 and PW-2. Presence of PW-1, PW-2and other witnesses is also confirmed in the oral dyingdeclaration of the deceased. In the medical certificate, history ofassault is given. Human blood is found on the clothes of AccusedNo.1. He, therefore, submitted that, there is no merit in the {7} criapel441-16.docAppeal filed by the Accused and the same is liable to bedismissed.7.In support of the Appeal filed by the State for enhancementof sentence, he submits that, taking into consideration themanner in which assault has taken place, the Trial Court ought tohave awarded death sentence to the Accused. 8.Learned Advocate for the informant adopted the argumentsof the learned APP. He submits that, the deceased was chasedand then was assaulted firstly by inflicting blows on his legs sothat he should not be able to run away and then in a brutalmanner blows were inflicted on his hands and stomach. Due tothe assault on the stomach, liver of the deceased got rupturedand he expired due to that. Therefore, intention on the part ofthe Accused is clear that they wanted to kill the deceased.Hence, the sentence awarded by the Trial Court to the Accused isinadequate and the same is liable to be enhanced.9.Heard learned Advocate for the Accused, learned APP forthe State and learned Advocate for the informant, at length. Withtheir assistance, we have perused the record.10.Prosecution has examined Dr. Rajput (PW-13) to whom thedeceased was taken for treatment, immediately after the assault {8} criapel441-16.docon 18th July, 2013 at 4.30 p.m. After examining the deceased andafter going through his X-ray reports, he noticed that thedeceased had suffered multiple fracture injuries. Since it wascase of poly trauma of multiple injuries, he advised the relativesto shift him to higher (tertiary) Hospital, the nearest center wasat Dhule. He, therefore, gave primary treatment by applyingsplinteg and immobilization to the deceased and appliedtemporary bandage. He gave painkiller and tetanus injections.According to him, from the time the deceased was brought to hishospital till he left, he was well oriented.In the cross-examination, he has stated that, in case if apainkiller is given to patient, his drowsiness depends uponmechanism of his body. In medical certificate (Exhibit-89), issuedby him, word “maramari” is mentioned by him upon receipt ofinformation from the relatives of the deceased. He furnished thesaid information to the police after 5.00 p.m. on 18th July, 2013.Except this, nothing favourable to the Accused is brought in thecross-examination of this witness. 11.Homicidal death of the deceased is proved by theprosecution by examining Dr. Bapu Baviskar (PW-12). Heconducted autopsy on the dead body of the deceased, on 19thJuly, 2013 between 11.00 a.m. and 2.00 p.m. On external {9} criapel441-16.docexamination, he found following injuries :I.Contusion over right knee joint, which was horizontal,having size of 10 X 8 cmII.Oblique contusion on right thigh medially over lowerthird region having size of 8 X 4 cmIII.There was contusion over right leg having size of 6 X4 cm. It was oblique.IV.There was compound fracture of right tibia and fibulaat lower 1/3rd region.V.There was CLW over right leg at ankle joint anteriorlyhaving size 2 X 2 cmVI.There was contusion swelling over right elbow jointwith fracture of right radius and ulna.VII.There was superficial abrasion over left arm having 3cm in length.VIII.Left colles fracture (e.g. wrist joint fracture)IX.There was superficial abrasion over left shoulderhaving 3 cm in length.X.CLW over right leg anteriorly having size of 2 cm X 2cm up to bone deep respectively. There were threesuperficial CLWs over left leg having size of 2 cm X 1cm respectively.XI.There was a contusion over left thigh medially and {10} criapel441-16.docobliquely placed having size of 4 X 3 cmXII.There was oblique contusion over rightepichondrieach region having size of 10 cm X 4 cm(epichondrieach region means the region below theright chest of abdomen)XIII.There was vertical contusion below Injury No. 12having size of 4 X 2 cm12.According to him, injury at Serial No. XII was correspondingwith the injury of liver tear shown in column No. 21 of the PostMortem report (Exhibit-83). According to him, injury No. XIII andliver tear mentioned in column No. 21 of the Post Mortem reportare sufficient to cause death in ordinary course of nature.Investigating Officer forwarded letter (Exhibit-84) asking hisopinion whether the injuries mentioned in column Nos. 17 and 21of the Post Mortem report can be caused due to the two ironpipes forwarded to him. He has opined that, “injuries mentionedabove, may be caused due to the weapons produced before me”. He has alsoproved advance death certificate (Exhibit-85), wherein he hasopined that the probable cause of death is “Cardio RespiratoryFailure due to injury to vital organ i.e. liver associated with multiple fracture ofmajor bone”.From the evidence of PW-12, it is clear that the prosecution hasproved that the deceased died homicidal death. {11} criapel441-16.doc13.Anil Patil (PW-1) is the informant. He has deposed in termsof the contents of the FIR (Exhibit-42). The printed form of theFIR is at Exhibit-42-A. He has deposed that the incident tookplace on 18th July, 2013 at about 3.00 p.m. On that day, he hadgone near Sarve Dam situated near farmland belonging to KaluGojar Patil, father of the Accused, for grazing cattle. DeceasedSandip and his two brothers had gone to their agricultural landfor giving fertilizer to the crops. At about 3.00 p.m. he heardnoise of quarrel from a road situated near the agricultural land ofKalu Gojar Patil. He looked there and saw that both the Accusedhad stopped motorcycle of deceased Sandip and they wereassaulting him on his hands and legs, by means of iron pipes.Deceased Sandip moved ahead in order to save himself and theAccused assaulted on his hands and abdomen by means of theiron pipes. At that time, Nimba Devram Patil, Devidas Vithal Patiland Sanjay Sahebrao Patil were grazing their cattle near NeriBhamre Road. They rushed at the spot. He also came there. Onseeing them, the Accused ran away towards Neri Bhamre Roadon their motor cycle. Since Sandip was lying, they made him sit.Blood was oozing from his hands and legs. There were injurymarks on his stomach. On their asking, deceased told that, whenhe was going to his house on motorcycle for watering his cattle,both the Accused assaulted him on hands, legs and stomach, by {12} criapel441-16.docmeans of iron pipes, on account of previous quarrel over loadingsugarcane in vehicle. Then he called PW-5 Pradeep, brother ofthe deceased on mobile and told him about the assault andasked him to bring bullock cart at the spot. Pradeep (PW-5) andJaywant, brothers of the deceased, brought bullock cart on thespot and Sandip was placed in the bullock cart. When they wereproceeding to the house along with the deceased and hisbrothers, in the bullock cart, the deceased narrated the incidentto his brothers saying that, when he was proceeding on hismotorcycle, he was assaulted by the Accused on hands, legs andstomach with iron pipes. Then they brought Sandip to SaiKrushna Hospital, Chalisgaon in Piaggio rickshaw owned byDashrath Dadabhau Patil, at about 4.40 p.m. On examination, thedoctor told them that Sandip had sustained serious injuries andadvised them to take him to hospital at Dhule. Then they startedproceeding towards Dhule, by arranging Ambulance. Whileproceedings towards Dhule, at about 5.45 p.m. Sandip expired.Therefore, they returned and brought the deceased back toGovernment Hospital, Chalisgaon. Then he went and lodged theFIR. He has stated that green iron pipe (Article – H) was in thehands of Accused Sandip and Yellow iron pipe (Article – I) was inthe hands of Accused Vijay. He also identified the clothes(Articles – “D”, “E”, “F” and “G”) of the Accused and white shirt {13} criapel441-16.doc(Article – B) of the deceased. He showed the spot of incident tothe police.In the cross examination, he admitted that the disputebetween the Accused and the deceased was solved prior to theoccurrence of the incident. Though this witness is subjected tolengthy and searching cross-examination, nothing favourable tothe Accused could be elicited in his cross-examination. 14.Nimba Devram Patil (PW-2) is another eye-witness to theincident. He deposed that, once there was a quarrel between thedeceased and Kalu Gojar Patil, on account of loading sugarcanein vehicle. Since then, they were not talking with each other.There was terror of Kalu Gojar Patil in the village, since he hadassaulted one to two persons in the village. Due to the terror, noone in the village was daring to lodge complaint against KaluGojar Patil. The incident took place on 18th July, 2013. On thatday, he had gone to graze his cattle on Neri-Bhamre road.Devidas Utta Patil and Sanjay Sahebrao Patil were also grazingtheir cattle along with him. Anil Adhar Patil (PW-1) was grazinghis cattle near Sarve Dam, adjoining the farmland owned by KaluGojar Patil. At about 3.00 p.m., deceased Sandip was proceedingto his house, on motorcycle. At that moment, they heard hue andcry from the direction of agricultural field of Kalu Patil. They saw {14} criapel441-16.docin that direction and saw that, Accused Sandip and Vijay wereassaulting deceased on his hands and legs, by means of ironpipes. He, along with Anil Patil, Devidas Patil and Sanjay Patil,rushed towards the spot, where the assault was going on. Whilerunning towards the spot, they saw that the Accused wasassaulting deceased Sandip on his hands, legs and stomach, bymeans of iron pipes. When they reached near the spot, theAccused persons ran away from the spot towards village, by Neri-Bhamre road. When they reached near the deceased, on inquiry,he told them that he was assaulted on hands, legs and stomach,by means of iron pipes, by Accused Sandip and Accused Vijay, onthe count of loading sugarcane in the vehicle. Anil (PW-1) made aphone call to brother of the deceased and asked him to bringbullock cart at the spot. There were blood stains on the handsand legs of the deceased and injury marks of assault by meansof iron pipes on the stomach. Thereafter, Pradeep (PW-5) andJaywant came there with bullock cart. They then placed thedeceased in the bullock cart, Pradeep and Jaywant took himaway and they went away for grazing cattle. They saw slippersand motorcycle belonging to the deceased, at the spot. Heidentified yellow colour iron pipe (Article-I) which was in thehands of Accused Vijay and green colour iron pipe (Article-H)which was in the hands of accused Sandip. At the time of the {15} criapel441-16.docincident, Accused Sandip was wearing pant and shirt andAccused Vijay was wearing half “T” shirt and pant. He alsoidentified clothes of the deceased i.e. white colour shirt (Article-B) and sando baniyan (Article-C) and pant. His statement wasrecorded on the next day of the incident. In spite of lengthy andsearching cross-examination, nothing favourable to the Accusedcould be elicited from him.He admitted that, the dispute between Kalu Patil and thedeceased was settled. However, he stated that at that moment,Kalu Patil had told deceased Sandip that he would see him(deceased). He stated that Sarve Dam is adjacent to thefarmland of the Accused. At the time of occurrence of theincident, his cattle and cattle of Devidas Patil and Sanjay Patilwere grazing adjacent to the road and Sanjay Patil and DevidasPatil were standing along with him at that moment. At the time ofthe incident, Accused assaulted deceased Sandip on his bothlegs and the deceased fell down on the bank of the road. Thedeceased was again assaulted, after he fell down. To a specificquestion, “whether both the Accused were assaulting on theentire body of the deceased?”, he answered that, “the Accusedwere assaulting on stomach, both hands and legs of thedeceased”. Both brothers of the deceased had asked thedeceased about the incident, after they arrived at the spot. At {16} criapel441-16.docthat moment, the deceased was in a condition to speak.Following omissions from his police statement are brought onrecord:I.“On 18-07-2013 in the morning, I had gone tograze my cattle towards Bhamre Neri Road”.(Omission is only to the extent of Bhatai Road).II.“On the day of incident, I along with DevidasVithal Patil and Sanjay Sahebrao Patil had goneto graze the cattle”III.“Anil Adhar Patil was grazing cattle near to SarweDam, close to the Farmland belongs to theAccused persons”.IV.“Upon hearing hue and cry of the quarrel, wesaw towards the Farmland belongs to Kalu GojarPatil.” (Omission is only to the extent of “we sawtowards farmland”)V.“While running towards the spot, we again sawthat both the accused persons were assaultingdeceased Sandip on his hands, legs and stomachby means of iron pipes” (omission appears to beonly to the extent of word “again”).15.The above omissions do not affect reliability of this witness.Presence of this witness at the scene of the incident is naturaland his evidence corroborates the evidence of PW-1. He hasnarrated the incident in the same manner in which it is narrated {17} criapel441-16.docby PW-1. Nothing is brought on record by the defence to doubttestimony of this witness.16.Both, PW-1 and PW-2 are consistent on the point of assaultby both the Accused on the deceased and they both stated thatAccused Sandip assaulted the deceased by green iron pipe andAccused Vijay assaulted the deceased by yellow iron pipe.Evidence of the eye-witnesses is further corroborated by themedical evidence of PW-13 Dr. Rajput, who examined thedeceased and PW-12 Dr. Baviskar, who has conductedpostmortem on the dead body of the deceased.17.Pradeep Patil (PW-5) is brother of the deceased, who wasinformed about the incident by PW-1 and was asked to bringbullock cart. He accordingly rushed to the spot of incident alongwith brother Jaywant. The deceased made oral dying declarationto them narrating the incident of assault by the Accused. He hasstated about the quarrel between deceased Sandip and KaluPatil, prior to two years of the date of the incident, on the countof loading sugarcane in vehicle. He had settled the quarrel,however, since then Kalu Patil was not talking with them. He alsostated that Kalu Patil had assaulted 2 to 3 persons of theirvillage, which created terror in the villagers. Due to his terror, noone was daring to lodge complaint against Kalu Patil. {18} criapel441-16.doc18.He deposed that the incident had taken place on 18th July,2013. On that day, they all the three brothers had gone to theirfield to give fertilizer to the cotton crop. At about 2.45 p.m.Sandip left the field towards house on motorcycle for givingwater to cattle. At that time, he and Jaywant were supplyingfertilizer to the cotton crop. At about 3.15 p.m. he received aphone call from Anil Patil (PW-1) informing that, when deceasedSandip was proceeding towards his house on motorcycle. On thecount of previous dispute, Sandip was obstructed by AccusedSandip and Vijay at the spot situated near the farmland of KaluPatil and was assaulted on hands, legs and stomach, by means ofiron pipes. He was asked to bring bullock cart at the spot.Accordingly, he and brother Jaywant went to the spot in a bullockcart. The spot was near the farmland of Kalu Patil. Nimba Patil,Devidas Patil, Sanjay Patil, Anil Patil and the deceased werepresent there. He found marks of injury on hands, legs andstomach of the deceased. Then they lifted Sandip and kept himin the bullock cart. When they were proceeding towards villageBhamre, they asked Sandip as to what happened. Sandip hadtold them that, when he was proceeding towards his house onmotorcycle, so as to offer water to cattle and when he reachedthe spot situated near the field of Kalu Patil, on the count ofprevious dispute, he was assaulted by Accused Sandip @ Abaya {19} criapel441-16.docand Vijay @ Bhurya, on his hands, legs and stomach, by meansof iron pipes. He further told that on seeing Nimba, Devidas,Sanjay and Anil, coming towards the spot, Accused Sandip andVijay ran away on their motorcycle. Then they brought Sandip tovillage Bhamre. Anil brought piaggio rickshaw of Dashrath Patil.In that they took Sandip to Sai krishna Hospital, Chalisgoan. Onexamining Sandip, doctor instructed them to take him to Dhulefor treatment. Anil Adhar Patil, Dipak Adhar Patil, Ashok MaharuPatil, his mother and wife of Sandip took Sandip in an Ambulancetowards Dhule. He and Jaywant came back to the house. At 5.45p.m. he was informed by brother Deepak Patil that Sandip diedon the way to Dhule and they were returning to Chalisgaon. Thenhe reached rural hospital and saw dead body of Sandip. Policerecorded his statement. He identified the Accused.19.Though he was grilled in lengthy cross-examination,nothing favourable to the Accused could be brought on record bythe defence.20.Evidence of PW-1 and PW-2 is corroborated by evidence ofPW-5. Making of the oral dying declaration by the deceased isstated by PW-1, PW-2 and PW-5. Evidence of these threewitnesses is cogent, reliable and proves that both the Accusedhave assaulted the deceased with iron pipes on his hands, legs {20} criapel441-16.docand stomach. Forensic evidence further supports the prosecutioncase in as much as, human blood is found on the clothes ofAccused Sandip.21.Memorandum statement of Accused Sandip (Exhibit-64) isproved by panch Dinesh Patil (PW-7). Accused Sandip agreed toproduce both the iron pipes and led the panchas and theInvestigating Officer to the spot where he had kept the ironpipes. He had kept the iron pipes under a bridge on the canal atPatonda – Borkheda road. Thereafter, Accused Sandip led themto Patonda – Borkheda road and asked to stop the vehicle at thebridge. Then he went under the bridge. A heap of garbage wasthere. Accused Sandip took out two iron pipes, which were keptunder the heap of garbage. Those were seized vide Panchanama(Exhibit-65). PW-7 is also Pancha to the seizure of clothes of theAccused (Exhibit-63).22.We find no force in the argument of the Accused that sincethe recovery is from the open space, the same should bedisbelieved. There is sufficient evidence on record to attributeconcealment of the weapons used in the crime by the AccusedSandip, as both the iron pipes were kept by him under heap ofgarbage from where he has taken them out. Therefore, merelybecause the heap of garbage was in open space, that is not {21} criapel441-16.docsufficient to hold that recovery is from open space. 23.Tatyasaheb Patil (PW-6) is Panch to the seizure of clothes ofthe deceased (Exhibit-56) and Pancha of seizure of motorcycle ofthe Accused Vijay (Exhibit-57).24.Nimbadas Hylinge (PW-4) has proved spot Panchanama(Exhibit-51).25.Inquest Panchanama (Exhibit-49) is proved by PW-3 AshokPatil.26.Lukdu Koli (PW-10) has carried letter (Exhibit-76) toForensic Science Laboratory.27. Dilip Dhobi (PW-11) is the carrier of letter (Exhibit-79) toFSL along with Muddemal Articles.28Vikas Devre (PW-14) is an Investigating Officer, whoconducted the investigation and proved investigation papers(Exhibits-98 to 115) and CA reports (Exhibit-116).29.From the aforesaid discussion it is clear that theprosecution has proved that both the Accused have assaulteddeceased Sandip with iron pipes on his hands, legs and stomachand due to the said assault, Sandip expired on 18th July, 2013.The FIR is also promptly lodged in this case. From the evidence of {22} criapel441-16.docthe prosecution witnesses, it is clear that, the prosecution hasproved beyond reasonable doubt that the Accused assaulted thedeceased Sandip due to which he expired. 30.Now, question before us is whether the Accused are liableto be punished under section 302 of the Indian Penal Code or fora lesser offence.31.Perusal of the medical evidence shows that the Accusedhave assaulted on hands, legs and stomach of the deceased withiron pipes. The assault is on such parts of the body of thedeceased which are not vital parts. According to Dr. Baviskar(PW-12), the cause of death is“Cardio Respiratory Failure due to injuryto vital organ i.e. liver associated with multiple fracture of major bone”. He hasadmitted in the cross that, “it is not possible in all cases that due to tear ofliver a person may die”. He has further admitted that, if a person isassaulted with iron pipes on his stomach, then the person maysustain serious injury, such type of injury was not noticed by himwhile conducting postmortem of the deceased. He has alsoadmitted that, except injury No. XII, other injuries were not onvital parts. Injury No. XII is oblique contusion over rightepichondrieach region i.e. the region below the right chest ofabdomen. If at all the Accused had intention to kill Sandip, thenthey would have assaulted him on vital part i.e. head. Intention
Decision
{23} criapel441-16.docof the Accused in assaulting the deceased appears to be to causehim grievous hurt and to teach him a lesson. From the nature ofthe injuries found on the dead body of the deceased, no intentionto cause death can be attributed to the Accused. However, theAccused had knowledge that any injury on stomach would causedeath.32.Taking into consideration the medical evidence, we are ofthe considered view that the Accused have assaulted thedeceased with knowledge that it is likely to cause death, butwithout any intention to cause death or to cause such bodilyinjury as is likely to cause death. Therefore, the Accused areliable to be punished for the offence punishable under section304-II of the Indian Penal Code.33.Record indicates that Accused No.1 Sandip is arrested on21st July, 2013 and since then he is in jail and Accused No.2 Vijaywas arrested on 24th February, 2015 and he is released onmedical bail in the month of April, 2025. Thus far, Accused No.1has undergone more than 12 years’ imprisonment and AccusedNo.2 has undergone more than 10 years’ imprisonment, whichaccording to us, is sufficient punishment for the offencepunishable under section 304-II of the Indian Penal Code.34.In the result, following order: {24} criapel441-16.docORDER1.Criminal Appeal No. 441 of 2016 is partly allowed.2.Conviction of the appellants recorded under Section 302 ofthe Indian Penal Code is converted into Section 304-II ofthe Indian Penal Code and the appellants are sentenced forthe period already undergone.3.The appellants be released forthwith, if not required in anyother case.4.The appellants to execute bonds in terms of Section 436-Aof the Code of Criminal Procedure.5.Criminal Appeal No. 469 of 2016 and Criminal Appeal No.497 of 2016 are disposed of, in terms of this order. [ SANDIPKUMAR C. MORE ] [ NITIN B. SURYAWANSHI ] JUDGEJUDGE drp/criapel441-16.doc