Partly allowed

Jaykumar Bhimrao Kadam v. the State of Maharashtra

Bombay HC24 Aug 2010APEAL/256/2008

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay, Bench at Aurangabad, disposed of two criminal appeals. It dismissed the appeal of the appellant convicted of murder, confirming the conviction. It partly allowed the appeal of other appellants, confirming their convictions but enhancing fines instead of imposing further imprisonment.

What did the court decide?

Conviction of accused no.1 confirmed and appeal dismissed. Conviction of other appellants confirmed but imprisonment sentences set aside; fines enhanced.

Jaykumar Bhimrao Kadam Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.

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CRIMINAL APPEAL NO.256 OF 2008

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Jaykumar s/o Bhimrao Kadam, Age : 32 yrs, Occ.Agril., R/o Limbgaon, Tq. Nanded, Dist. Nanded ..APPELLANT (Ori. Accused No.1)

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VERSUS

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State of Maharashtra Through Police Station Officer, Police Station, Tadkalas, Tq. Purna, Dist. Parbhani

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..RESPONDENT

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Mr Joydeep Chatterji, Advocate for the appellant; Mr K.B. Chaudhari, A.P.P. for the respondent

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WITH

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CRIMINAL APPEAL NO.199 OF 2008

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Bhimrao Kishanrao Kadam, Age : 71 yrs, Occ.Agril., R/o Limbgaon, Tq. Nanded Dist. Nanded

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Gayabai Bhimrao Kadam, Age : 54 yrs., Occ.Nil, R/o As Above

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Kalpana Jaykumar Kadam, Age : 28 yrs., Occ.Agril., R/o As Above

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	2
4.	Ballu @ Shamrao Ganpatrao Bhojane, Age : 28 yrs, Occ.Agril., R/o Sunegaon, Tq. Basmath, Dist. Hingoli
5.	Ganesh Janardan Bhokare, Age : 33 yrs, Occ.Agril., R/o Purna, Tq. Purna, Dist. Parbhani
6.	Shivaji Janardan Bhokare, Age : 22 yrs, Occ.Agril., R/o Purna, Tq. Purna, Dist. Parbhani
7.	Munjaji Ganpatrao Bhojane, Age : 30 yrs, Occ.Agril., R/o Sunegaon, Tq. Basmath, Dist. Hingoli (Ori.	..APPELLANTS Accused Nos.2-5 and 8-10)
	VERSUS
*	State of Maharashtra Through Police Station Officer, Police Station, Tadkalas, Tq. Purna, Dist. Parbhani	..RESPONDENT
Smt. Mr K	S.S. Jadhav, Advocate for the appellants; .B. Chaudhari, A.P.P. for the respondent

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CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 24th August, 2010

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ORAL JUDGMENT (PER P.V. HARDAS, J.)

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The appellants in the said Criminal Appeals are original accused

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nos.1 to 5 and 8 to 10. Original accused no.1 stands convicted for an offence punishable under section 302 of the Indian Penal Code and is sentenced to imprisonment for life and to pay fine of Rs.5,000/-, in default to suffer R.I. for one year; under section 25 (1) of the Indian Arms Act and is sentenced to R.I. for three years and to pay fine of Rs.2,000/-, in default to suffer R.I. for three months; under section 143 of the Indian Penal Code and is sentenced to R.I. for three months and to pay fine of Rs.500/- in default to suffer S.I. for fifteen days; under section 147 of the Indian Penal Code and sentenced to R.I. for one year and to pay fione of Rs.1,000/- in default to suffer S.I. for two months; under section 148 of the Indian Penal Code and sentenced to R.I. for two years and to pay fine of Rs.1,000/-, in default to suffer S.I. for two months, with a direction that all the sentences shall run concurrently. Original accused nos.2 to 5 and 8 to 10 stand convicted for offence punishable under section 324 read with sec. 149 of the Indian Penal Code and sentenced to R.I. for three years and to pay fine of Rs.2,000/- each with a default stipulation of undergoing S.I. for three months; under section 143 of the Indian Penal Code and sentenced to R.I. for three months and to pay fine of Rs.500/each, in default of which to suffer S.I. for fifteen days; under section 147 of the Indian Penal Code and sentenced to R.I. for one year and to each pay fine of Rs.1,000/-, in default of which toi suffer S.I. for two months; under section 148 of the Indian Penal Code and sentenced to R.I. for two years and to each pay fine of Rs.1,000/-, in default of which to suffer S.I. for two months. Accused nos.3 & 4, in addition are convicted

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under section 324 read with sec. 149 of the Indian Penal Code and sentenced to suffer imprisonment till rising of the Court and to each pay fine of Rs.1,000/-, in default of which to undergo further S.I. for one month, by the Sessions Judge, Parbhani, by judgment dated 29.5.2008 in Sessions Trial No.48 of 2007. Since both the appeals question the correctness of the conviction and sentence of the appellants, both the appeals are being decided by this common judgment.

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Such of the facts as are necessary for the decision of these appeals may briefly be stated thus :-

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P.W.14 P.I. Gautam Fasle, who was attached to Police Station Tadkalas received information at about 10.30 a.m. on 1.11.2006 that certain incident had occurred at the village in which 4 to 5 persons were injured. He also received information that the injured were receiving treatment at the Tadkalas hospital and, therefore, visited the Tadkalas hospital. It appears that the injured were referred to the Parbhani hospital and, therefore, on reaching the Tadkalas hospital P.W.14 P.I. Fasle was informed about the same. From the Tadkalas hospital P.W.14 P.I. Fasle returned back to the police station Tadkalas. At that time accused Bhimrao Kadam, Jaykumar and Gayabai Kadam had arrived at the Police Station with intention of lodging a report. They were asked to wait in the Police Station and P.W.14 P.I. Fasle visited village Maher i.e. the scene of the occurrence and noticed a mob of 50 persons behaving in

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disorderly manner at the scene of the occurrence. From the Control Room a message was received that the injured had been admitted in the Civil Hospital at Parbhani. P.I. Fasle had also been informed that one of the injured had succumbed to the injuries and asked to go to the Parbhani hospital. The accused who had come to the police station were sent to police station, Purna along with the police escort and P.I. Fasle went to the Parbhani hospital. P.W.14 P.I. Fasle requested the Medical Officer to examine injured Bhagwan Paul and ascertain if he was in a condition to give a statement. On the Medical Officer certifying the fitness of Bhagwan, P.W.14 P.I. Fasle recorded his statement. He obtained the signature of Bhagwan on the said statement. The said statement is at Exh.60. After recording the said statement P.W.14 P.I. Fasle returned back to police station, Tadkalas and registered an offence vide Crime No. 56 of 2006 and undertook the investigation himself. On the same day he arrested four accused at arrest panchnamas Exh.113 to 116. Names of other accused also transpired during custodial interrogation. On the next day P.W.14 P.I. Fasle visited the scene of the occurrence at Mahergaon and in the presence of the panch witnesses, namely P.W.7 Uddhav and another panch drew the scene of the offence panchnama at Exh.77. From the scene of the offence handkerchief and cap of injured Bhagwan was seized as also the sample of plain soil and blood mixed soil came to be seized. During the search of the residential house of accused Bhimrao, 5 to 6 wooden sticks and a knife were found in the courtyard of the house of the accused and accordingly came to be seized vide

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seizure memo at Exh.79 in the presence of P.W. 8 Ramesh. The buffalo and the calf were given on supurtnama to Police Patil Yeshwant Paul vide panchnama at Exh.80. On 3.11.2006 he arrested the other accused under arrest panchnamas at Exhs.117 and 118. On the next day i.e. on 4.11.2006 the other accused came to be arrested. The Surveyor from the Land Record had drawn sketch map of the place of the occurrence. On 4.11.2006 the accused who had been arrested were referred for medical examination with a request to draw their blood sample. Accordingly, P.W. 11 Dr. Zakir examined the accused and issued the certificates at Exhs. 89 to 94. The seized property came to be referred for chemical analysis vide requisition at Exh.102. Injured had succumbed to the injuries and accordingly the inquest panchnama had been drawn. Clothes of Bhagwan and other injured came to be seized in the presence of panchas at Exh.82. On 7.11.2006 during custodial interrogation accused Jaykumar had expressed his willingness to point out the place where the Gupti (stick sword) had been concealed. The aforesaid panchnama came to be recorded in the presence of P.W.10 Bhaskar at Exh.84. The accused led the police and the panchas to his house and produced a Gupti from beneath the staircase. The aforesaid Gupti came to be seized vide panchnama at Exh.85. Clothes of accused Bhimrao and Jaykumar came to be seized under panchnama at Exh.86., On 9.11.2006 clothes of deceased Ambadas came to be seized vide seizure memo at Exh.74 in the presence of panchas. Accused Ganesh came to be arrested vide arrest panchnama at Exh.122 while accused Shivaji came

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to be arrested under arrest panchnama Exh.123. The seized articles were referred to the Chemical Analyser vide requisition at Exh.102. Accused Munja came to be arrested under arrest panchnama at Exh.127 while accused Pandurang came to be arrested under arrest panchnama at Exh.128. Further to the completion of investigation a charge-sheet against the appellants came to be filed in the Court.

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On committal of the case to Court of Sessions, Trial Court vide Exh.33 framed charge against the accused for offence punishable under section 143, 147, 148, 302 read with sec. 149, 324 read with sec. 149, 504 read with sec.34, 506 read with sec. 34 of the Indian Penal Code and under section 37 (1) (3) of the Bombay Police Act and against accused no.1 for an offence punishable under section 25 (1) of the Arms Act. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 18 witnesses. The Trial Court, upon appreciation of the evidence of the prosecution, convicted and sentenced the accused as aforestated. The present appeal filed by the accused questions the correctness of their conviction and sentence.

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In order to appreciate the submissions advanced before us by Shri Joydeep Chatterji and Smt. S.S. Jadhav, learned Counsel for the appellants and the learned A.P.P. for State, it would be useful to refer to the prosecution evidence.

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P.W.1 Bhagwan, an injured eye-witness and first informant states

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that he owns 3-1/2 Acres of land adjoining the field of accused Bhimrao. Accused nos.1, 2 & 3 along with their family members reside in the farm house constructed in their field. According to him, on 1.11.2006 at about 6.00 p.m. the buffalo of Bhimrao has strayed in the field of P.W.1 Bhagwan and was damaging the cotton crop. Hanuman, son of P.W.1 Bhagwan tied the she-buffalo and on account of which accused nos.1, 3 & 4 came to the field of P.W.1 Bhagwan and abused his son and wife. The accused had also threatened Bhagwan. The aforesaid incident was narrated to P.W.1 Bhagwan by his wife and son. Bhagwan had accordingly gone to the Police Patil and the Police Patil advised Bhagwan to untie the buffalo and report the incident to the police. Accordingly Bhagwan returned to his field and untied the buffalo. On the next day at about 9 to 9.30 a.m. Bhagwan was proceeding to police station Tadkalas accompanied by his son P.W.2 Munja. As they reached near the field of the accused, accused no.2 Bhimrao gave a call to them. Accused no.2 Bhimrao and accused no.1 Jaykumar caught Bhagwan and dragged him to the field of one Sopan Kale and started assaulting him. He states that Vijaykumar dealt a stick blow on his head while accused no.2 Bhimrao dealt a knife blow on his chest. He states that he suffered bleeding injury and raised cries for help. On that accused no.3 Gayabai, accused no.4 Kalpana assaulted him by fists and kicks. Hearing his cries for help, P.W.4 Vikram who was working in the other field and P.W.3 Angad came to the scene of the incident. Similarly, P.W.6 Kundlik and

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P.W.5 Ramkisan also arrived there. Accused Bhimrao called the other accused from his field and accordingly accused Ballu, Shiva, Munja, Ganesh and Pandurang Ambhore came there with sticks and knives. Ballu dealt a knife blow on the right thigh of Vikram while Angad was assaulted by sticks by Ganesh, Munja and Shiva. Shiva also dealt a knife blow on the back of Munja. Deceased Ambadas and one Subhash Chimte arrived at the scene of the incident and Ambadas was caught by accused no.2 Bhimrao and accused no.11 Pandurang. Accused Vijaykumar dealt a blow of Gupti on the chest of Ambadas. While P.W.6 Kundlik was offering water to injured Ambadas, accused Ballu, son of Kishanrao dealt a knife blow on his head. P.W.5 Ramkisan was also assaulted by knife by accused no.5 Ballu. Hearing the commotion, several villagers arrived at the place and accordingly accused no.2 Bhimrao signalled the other accused to flee from the scene of the incident. The injured were taken to the Tadkalas hospital where the Doctor examined the injured and referred them to Parbhani hospital. He states that his statement was recorded by the police at Exh.60. In crossexamination he has admitted that the distance between his field and village Maher is about half a kilometer, while the distance between village Maher and Tadkalas is six kilometers. He has admitted that his brother Angad resides separate and the field of Angad is adjoining to his field. He has also admitted that prior to the incident there were no disputes between accused Bhimrao and him. He has admitted that he did not go to the house of accused when his wife had informed him that the buffalo

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of the accused Bhimrao had strayed in his field. He has admitted that after he had released the buffalo there was no quarrel between him and accused Bhimrao. He has admitted that when he was proceeding to the police station on the next day of untying the buffalo, he was not possessing any written report. He has admitted as correct that hearing his cries when Angad, Kundlik, Vikram and Ramkishan were coming to the place of the incident they had been assaulted with sword, spears, etc. by twelve persons. He has admitted that in the said beating he along with the witnesses had received serious injuries. He has admitted that on the day of the incident Ambadas had gone to Tadkalas and at the time of the incident had come with Subhash Chimte at the scene of the incident. He has admitted that when he was initially assaulted, no one was present in the adjoining field. He has admitted that he was not rendered unconscious on account of receiving the first blow by stick on his head. He has admitted that he had stated that he had not collapsed at the place of the occurrence. He has admitted that the incident of assaulting Angad, Kundlik, Vikram and Ramkishan had occurred when Ambadas had come to the place of the incident. He has also admitted that after the incident the injured were sitting at the place of the occurrence. He has admitted that none of the injured had been caused any injuries by sword. Certain unknown persons were armed with swords and he had noticed spears with the unknown persons. He has admitted that the unknown persons had not inflicted any injury to him or to the other injured. He has admitted that he had not stated in his report

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that Bhimrao had caused an injury of knife on his chest. Similarly he has admitted not to have stated in his report that accused Ballu, accused Shivaji, accused Munja and accused Ganesh had come armed with sticks and knives. He has admitted that he had not stated that accused no.5 caused an injury by knife on the thigh of Vikram. He has admitted not to have stated in his report that accused no.10 Munja, accused no.8 Ganesh and accused no.9 Shivaji had assaulted Angad with stick. He could not remember if he had stated in his report that his son Munja was accompanying him when going to police station, Tadkalas. He has admitted not to have stated in his report that accused Shivaji dealt a knife blow to his son Munja. Similarly, he has admitted not to have stated in his report that Kundlik was offering water to Ambadas and at that time accused Ballu had dealt a knife blow on his head. He could not remember if he had stated in his report that accused Ballu had dealt a knife blow on the chest of Ramkishan. Omission has been duly proved in his statement dated 9.11.2006 that he had not stated that accused Ballu, Shivaji, Munja and Ganesh had come armed with sticks and knife. He has admitted not to have stated in his statement that accused Ballu dealt a knife blow on the thigh of Vikram. He has admitted not to have stated in his previous statement that accused Bhimrao dealt a knife blow to him. He has admitted that the police recorded his statement in the hospital at Parbhani. He has denied the suggestion that the accused had not assaulted him and the other injured, but certain unknown persons were involved in the incident. Omission has been duly proved that he

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had not stated in his previous statement that accused Gayabai, Kalpana had assaulted him with fists and kicks. Similarly, he has admitted not to have stated in his previous statement that while he was passing from the field, accused Bhimrao had given a call to him.

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Prosecution has examined P.W.2 Munjaji, son of P.W.1 Bhagwan. He states about the prelude to the incident of the earlier day about the buffalo straying in the field of P.W.1 Bhagwan and damaging the cotton crop. He states that on the day of the incident he had accompanied his father for lodging a report at police station, Tadkalas and when they had reached the field of Sopan Kale, accused Bhimrao and the other accused had taken P.W.1 Bhagwan to the field of Sopan Kale. He states that accused Shivaji had dealt a knife blow on his back while accused Bhimrao had dealt a blow on the left side chest of his father. Accused Jaykumar had assaulted his father i.e. P.W.1 Bhagwan by a stick on the head. He states that he and his father cried for help and accordingly P.W. 4 Vikram had arrived at the scene as also P.W.3 Angad. He states that accused Ballu dealt a knife blow on the thigh of Vikram while accused Munja and Shiva assaulted Angad with sticks. One Motiram had also come to the scene of the incident. Munja states that his mother had also arrived there. Motiram, however, fled towards the village. Deceased Ambadas and one Subhash had also arrived at the place of the incident. Kundlik and Ramkishan had also arrived there. Accused Bhimrao and accused Pandurang had caught Ambadas while accused Jaykumar dealt

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a blow of Gupti on the chest of Ambadas. On receiving injury Ambadas fell on the ground. Kundlik was offering water to Ambadas and accused Ballu dealt a knife blow on the head of Kundlik. Accused Ballu also dealt a knife blow on the chest of Ramkishan. The accused thereafter fled from the scene of the offence on seeing the villagers. In cross-examination he has admitted that accused Jaukumar is not a resident of the village but had purchased about 10-1/2 Acres of land at the village. He has admitted to have sustained two injuries on head and back. However, he admits that he was not rendered unconscious on account of the injuries. He has admitted not to have informed the Doctor at Parbhani about the names of the accused who had caused injuries to him. He has admitted that a police jeep had accompanied them when they were shifted from the hospital at Tadkalas to the hospital at Parbhani. He has admitted that none of the injured had travelled in the jeep to the Parbhani hospital. In further cross-examination on behalf of the other accused, he states that his mother had informed him about the tying of the buffalo of accused Bhimrao by his other brother Hanuman. He admits that his mother had also narrated to him about the threat given by Bhimrao. He states that his mother had also narrated the incident to his father P.W.1 Bhagwan and thereafter his father had untied the buffalo. He has admitted that when he and his father were assaulted, none of the villagers were present there. He states that he and his father were dragged to the field of Sopan Kale by the accused. He states that accused Bhimrao carried a knife in his pocket and with that knife he had inflicted an injury to his

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father P.W.1 Bhagwan. He has admitted that about 8 to 10 persons had rushed to the scene of the occurrence and they were armed with sticks and had commenced assaulting the injured. He states that those persons who are unknown to him. He states that two blows by a stick were inflicted to Angad and thereafter those unknown persons fled from the scene. He has admitted that the police recorded his statement after some days from the incident and till that time he had not disclosed about the incident to the police. He states that till Ramkishan was assaulted by the accused, none of the villagers had come to the scene of the occurrence. He admits that villagers had come after fifteen minutes of assault on Ramkishan. He has denied to have stated portion marked "B" in his statement to the effect that while they were passing by the side of the field, accused Ballu had called them to the field of Sopan. Similarly he has denied to have stated portion marked "C" from his statement that Bhimrao had assaulted his father P.W.1 with a stick. Portion marked "D" also came to be denied by him to the effect that after 8 to 10 persons had arrived there accused Bhimrao dealt a stick blow on the chest of his father.

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Prosecution has examined P.W.3 Angad, who also deposes about the incident. He states that on hearing the cries of his brother he ran towards the field of Sopan accompanied by his servant P.W.4 Vikram. He states that accused Bhimrao had assaulted P.W.1 Bhagwan by a stick while accused Gayabai had assaulted his brother Bhagwan by fists and

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kicks. Accused Jaykumar had assaulted Bhagwan with stick on his head, while accused Ballu had assaulted Bhagwan with sticks. Accused Ballu had dealt a knife blow on the thigh of Vikram. He states that accused Bhimrao had called some unknown persons from his farm house, who are accused Munja, Ganesh and Shivaji. He states that accused Ballu dealt stick blow on his head and thereafter accused Ballu, Shiva and Ganesh assaulted him on his waist. He states that thereafter he had seen Ambadas arriving at the scene of the offence and at the same time Kundlik and Ramkishan had also arrived there. Accused no. 11 Pandurang and accused no.2 Bhimrao had caught Ambadas while accused Jaykumar had dealt a Gupti blow on his abdomen. On receiving the injuries Ambadas fell down and while Kundlik was offering him water , Ballu inflicted a knife blow on the head of Kundlik and also assaulted Ramkishan with a knife. The accused fled from the scene of the incident on the arrival of the villagers. In his cross-examination he states that he was at the Parbhani hospital for six days. He states that his statement came to be recorded on 9th November and till that time he did not disclose the incident to any one. He states that when he had reached the scene of the occurrence six other persons had come to the scene of the incident, out of which he was knowing three persons. The said persons who had arrived at the scene of the incident were armed with sticks. In cross-examination he has admitted that he had seen injury on the chest of Bhagwan and injury on the back of Munja. He has further admitted that when he had come to the scene of the offence, accused Jaykumar

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and accused Bhimrao were armed with sticks and were assaulting Bhagwan and Munja. He has further admitted that when he had come to the scene of the incident, accused Jaykumar and accused Bhimrao were armed with sticks and were assaulting Bhagwan and Munja. He states that when P.W.4 Vikram had arrived at the scene of the incident, he had tried to intervene in the quarrel but was assaulted. He states that initially accused Ballu was armed with a stick but thereafter had taken out a knife from his pocket. He states that Ballu had assaulted Vikram by the knife but the knife blow landed on the thigh when Vikram tried to avoid the blow. He states that P.W.4 Vikram was also assaulted by sticks but could not state who were the accused who had assaulted him. He has stated that it did not happen that the accused persons had lifted him and dashed him on the ground. He denied to have stated so at portion marked "A" in his statement. He has stated that Ambadas was accompanied by one person but the said person did not intervene in the quarrel. He states that accused Jaykumar had taken Gupti from one unknown person whose name he could not state. He further states that Ambadas was held by two persons when Jaykumar had stabbed him. Omission has been duly proved that he had not stated that accused Munja, Ganesh and Shivaji were amongst the unknown persons called by accused Bhimrao to the field.

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P.W.4 Vikram also deposes about the assault on him and the other witnesses. He states that accused Ballu dealt a knife blow on his

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thigh while accused Munja dealt a stick blow on his head. He also deposes about the arrival of Ambadas and about Ambadas being caught by two persons while accused Jaykumar stabbed him on his abdomen. He also states about the accused fleeing from the scene of the incident after the arrival of the police. In cross-examination on behalf of the accused he has admitted that he was in his village till the recording of his statement. In cross-examination he has admitted that accused Ballu was armed with a stick but had removed a knife from his pocket. He has further admitted that he had sustained injury on his thigh when he had attempted to evade the blow. He has also admitted that he knows Subhash Chimte who had accompanied Ambadas. He has admitted that Subhash Chimte was standing but did not attempt to intervene in the quarrel. He has also admitted that accused Jaykumar had taken the Gupti from an unknown person and had thereafter stabbed Ambadas. Omission has been duly proved that he had not stated in his statement that P.W.1 Bhagwan was going to Tadkalas for lodging the report and that accused Jaykumar and accused Bhimrao were assaulting Bhagwan with sticks. Similarly omission has been duly proved that he had not stated in his previous statement that accused Shiva was amongst the persons called by accused Bhimrao from his farm house. Omission has been duly proved that he had not stated that accused Munja had assaulted him with a stick on his head. Omission has been duly proved that he had not stated that after Ambadas fell on the ground Ramkishan and Kundlik had gone towards him. Omission has been duly

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proved that he had not stated that accused had assaulted Kundlik from behind. The omission is only in respect of the word "behind".

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P.W.5 Ramkishan also deposes on the same lines as the other injured witnesses. He deposes about the assault on deceased Ambadas as well as the other injured witnesses. In cross-examination he has stated that he had seen the knife in the hand of accused Ballu when he had dealt a knife blow to him. He has also admitted that accused Ballu had dealt a blow with the same knife to Kundlik. He has admitted that he did not try to catch accused Jaykumar when he stabbed Ambadas. He has admitted that the others had not assaulted Ambadas. Omission has been duly proved that he had not stated in his previous statement that accused Jaykumar had taken the Gupti from an unknown person. P.W.6 Kundlik also deposes in respect of the assault on Ambadas, himself and the other witnesses. In cross-examination he has admitted that before he could intervene in the quarrel, injuries were inflicted on him.

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The learned Counsel for the appellants have urged before us that there is discrepancy in respect of the names of the accused who have assaulted the other injured witnesses. It is urged before us that one injured witness is not corroborated in his description in respect of the assault on the other injured witnesses and, therefore, the entire prosecution case should be jettisoned. The learned A.P.P. has urged before us that there is overwhelming evidence in respect of the assault

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and the involvement of the accused. In a case involving assault on several persons there is bound to be minor variation in respect of the description of the assault on each individual injured witness. Depositions of no witnesses would be identical in respect of the minor details of the assault. Discrepancies are bound to be there in respect of the names of the accused who had assaulted each of the injured witnesses. The injured witnesses have categorically stated about the accused who had assaulted them. In such circumstances, therefore, according to us, this minor variation in the evidence of the eye-witnesses would not entail the rejection of the prosecution case in its entirety. There is overwhelming evidence in respect of participation of each of the accused. Variation in respect of accused no.1 taking the knife from the unknown persons is a minor variation, which would not entitle the accused to urge for their acquittal. The witnesses have categorically deposed about deceased Ambadas being held by two accused and thereafter accused no.1 stabbing him by a Gupti. Variation in respect of accused no.1 taking the Gupti from the unknown persons is a minor variation. The Trial Court, however, has acquitted the accused who had held Ambadas and in the absence of any State appeal, though the accused are said to have held Ambadas, the participation of those accused in the assault on Ambadas stands ruled out. There is other overwhelming evidence in respect of participation of each of the accused and, therefore, according to us the accused are not entitled to be given the benefit of doubt. The appeal filed by accused no.1 challenging his conviction, therefore, deserves to be

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dismissed. Accused no.1 had stabbed deceased Ambadas on his abdomen which resulted in death of deceased Ambadas.

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Post mortem came to be conducted on the dead body of deceased Ambadas by P.W.12 Dr. Jadhav. P.W.12 Dr. Jadhav states that Ambadas had sustained a stab injury on the epigastic region just below sternum having 1.5 cms. width. The injury had pierced liver and heart and about 1 to 2 Ltrs. of blood was found in abdomen. Rupture of liver was through and through upto the right ventricle of the heart. He has further stated that the injury was sufficient in ordinary course of nature to cause death. He has opined that cause of death of deceased Ambaas was due to cardio respiratory failure due to haemorrhagic shock. He has proved the post mortem report at Exh.99. Though this witness has been crossexamined at length, nothing of importance has been elicited in his crossexamination to doubt that deceased Ambadas had died on account of the injury and that the injury was sufficient in ordinary course of nature to cause death. Therefore, according to us the prosecution has proved beyond reasonable doubt that accused no.1 had stabbed deceased Ambadas and deceased Ambadas had died as a result of the injury. The injury inflicted by accused no.1 was an intentional injury which was sufficient in ordinary course of nature to cause death and, therefore, accused no.1 is liable to be convicted for offence punishable under section 302 of the Indian Penal Code.

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In respect of the other accused, Mrs Jadhav, learned Counsel for the appellants has urged before us that accused nos.2 to 5 and 8 to 10 have been convicted for offence punishable under sections 324 and 143, 147 and 148 of the Indian Penal Code. The accused have undergone the sentence as follows :-

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Accused no.2 Bhimrao	: Ten days
Accused no.3 Gayabai	: Ten days
Accused no.4 Kalpana	: 2 months 18 days
Accused no.5 Ballu	: 2 months 15 days
Accused no.8 Ganesh	: 2 months 18 days
Accused no.9 Shivaji	: 2 months 17 days
Accused no.10 Munjaji	: 2 months 9 days

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In that light of the matter, therefore, according to us the accused can be released on the sentence undergone by them on the fine amount being increased.

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Accordingly appeal filed by accused no.1 questioning his conviction for offence punishable under section 302 of the Indian Penal Code and other offences is liable to be dismissed while the appeal in respect of original accused nos.2 to 5 and 8 to 10 deserves to be partly allowed by maintaining their conviction but altering the sentence.

¶70

¶71

Accordingly, Criminal Appeal No.256 of 2008 is dismissed confirming the conviction of the appellant/original accused no.1 Jaykumar s/o Bhimrao Kadam for the offence with which he was charged and convicted.

¶72

Criminal Appeal No.199 of 2008 is partly allowed. The conviction of the appellants/original accused Nos.2 Bhimrao Kishanrao Kadam, accused No.3 Gayabai Bhimrao Kadam, accused No.4 Kalpana Jaykumar Kadam, accused No.5 Ballu @ Shamrao Ganpatrao Bhojane, and accused No.8 Ganesh Janardan Bhokare, accused No.9 Shivaji Janardan Bhokare and accused No.10 Munjaji Ganpatrao Bhojane is hereby confirmed. However, the appellants/original accused 2 to 5 and 8 to 10 are released on the period of imprisonment already undergone by them. The sentence of imprisonment is, therefore, set aside and the sentence of payment of fine for the various offences is enhanced as detailed below :

¶73

Accused Nos 2 to 5 and 8 to 10 shall each pay fine of Rs.4,000/for offence punishable under Section 324 read with sec. 149 of the Indian Penal Code.

¶74

Accused Nos.3 and 4 shall pay fine of Rs.2,000/- each for offence punishable under Section 324 read with 149 of the Indian Penal Code and Accused Nos.2 to 5 and 8 to 10 shall pay fine of Rs.1,000/- each for

¶75

¶76

offence punishable under Section 143 and shall pay fine of Rs.2,000/each for offence punishable under Section 147 and Rs.2,000/- each for offence punishable under Section 148.

¶77

50% of the amount of fine, if paid by the accused shall be paid to the family members of deceased Ambadas. The sentence of imprisonment on failure to pay the aforesaid amount of fine is confirmed. The amount of fine to be deposited by the appellants within four weeks from today. Since the appellants i.e. original accused Nos.2 to 5 and 8 to 10 are on bail, their bail bonds stand cancelled.

¶78

Appeal partly allowed accordingly.

¶79

amj/cria256.08

Jaykumar Bhimrao Kadam v. the State of Maharashtra

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Jaykumar Bhimrao Kadam v. the State of Maharashtra

Case brief

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