Partly allowed

Pandu S.Borge and Ors. v. the State of Maharashtra

Bombay HC9 Oct 2014APEAL/42/1993

Case brief

AI extract

What is this about?

Criminal appeal against conviction for murder (302 IPC) and assault (324 IPC). Court held appellant No 1 abated. Found appellant No 2 guilty of 324 IPC but reduced sentence to time already served. Conviction of appellant No 3 for 324 IPC was upheld. Appellant No 1's appeal set aside as abated.

What did the court decide?

Sentence of appellant No. 2 reduced to time already undergone; bail cancelled. Appellant No. 3 conviction upheld. Appeal of No. 1 abated.

Pandu S.Borge and Ors. Vs the State of Maharashtra — Cheque Dishonour | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 42 OF 1993

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Shri Pandu Shripati Borge Age 34 years, Occ: Service.

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Shri Krishna Bandu Borge, Age 25 years, Occ: Agriculturist.

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Shri Shripati Pandurang Borge Age 55 years, Occ: Agriculturist,

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All residents of Verwadi, Village Salashi, Taluka Shahuwadi, District Kolhapur ..Appellants (Org. accused nos.1, 2 and 3)

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v/s.

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The State of Maharashtra .

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..Respondents

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Mr. N.V.Pradhan and Ms. S.D.Khot for the Appellant. Mr.H.J.Dedhia, APP for the Respondent/State.

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CORAM : P.V.HARDAS &

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SMT. ANUJA PRABHUDESSAI,JJ. DATED : OCTOBER 09, 2014.

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JUDGMENT (PER ANAUJA PRABHUDESSAI).

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This appeal is directed against the judgment dated 30.11.1992

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in sessions case no.196/1991 whereby the learned Sessions Judge, Kolhapur has convicted the appellant no.1 for offence under Section

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302 of IPC and the appellant no.2 Krishna and appellant no.3 Shripati for offence under Section 324 of IPC. The appellant no.1 has been sentenced to undergo imprisonment for life and to pay fine of Rs.500/- in default rigorous imprisonment for one month for offence under Section 302 of IPC. The appellant no.2 has been sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.200/- in default rigorous imprisonment for 15 days for offence under Section 324 of IPC whereas the appellant no.3 has been directed to execute a bond for good behavior for a period of one year to the extent of Rs.3000/- with one surety.

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Brief facts necessary to decide this appeal are as under:

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The appellants were the accused no 1,2 and 3 in sessions case no 196/91 and shall be hereinafter referred to as the accused no 1,2 and 3 respectively. It is the case of the prosecution that on 30.5.1991 at about 5.30 p.m. the accused no.3 Shripati had inflicted an injury on the head of PW5 Mahadev Shivaji Bhosale by an axe. On learning

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about the incident, Rajaram and his wife PW7 Akkabai went to the house of the accused no.3. They were followed by PW4 Daulu, PW6 Dattu and PW8 Pandurang. It is the case of the prosecution that Rajaram had questioned the accused about the incident of assault whereupon the accused no.1 fired a gun shot at Rajaram and thereby caused his death. It is further alleged that accused NO.2 Krishna also fired a gunshot and caused grievous injuries to Pandu Bhosale and Dattu Bhosale.

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PW4 Doulu went to Shahuwadi police station and lodged the report at Exh.25, pursuant to which PW13 Yeshwant Katkar registered crime no.81/1991 against the accused and one Babu Pandu Borge (original accused no. 4) for offences under section 302, 307, 504, 506 r/w. PW15 Bhagwan Mali, PSI on duty, went to the spot and conducted the scene of offence panchanama at Exh. 31 and He attached the clothes of the deceased and the injured under seizure panchanama at Exh. 20 and 21 and sent the body of the deceased to CPR General Hospital, Kolhapur for post mortem. The Medical officer of CPR hospital, Kolhapur, conducted the postmortem over the body of the deceased.

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The post mortem report, which is at Exh.34 reveals that

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Rajaram had sustained following injuries:

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Punctured wound-poster. Lateral aspect of left side of chest at level of 8^th intercastal space surrounded by smoke. 2.5 cm in diameter with iregular margins on palpation wound enters into pleural cavity bleeding.

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Multiple punctured wounds surrounding the main wound, 20 in no. measuring about ¼ cm x ½ cm in diameter.

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Ecchymosis at right 10^th intercostal space anteriorly 1.5cm and 1.5 cm. On pappation. Hard round substance felt underneath.

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The doctor had opined that the injuries were ante mortem and that

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the death of Rajaram was due to hemorrhagic shock due to bullet injury. The other injured witnesses were also examined by PW12 Dr.Subhash Jagtap and PW14 Dr. Ravindra Khot. PW15 Bhagwan Mali, PSI recorded statements of all the injured and the other witnesses. He forwarded all the incriminating material to the chemical analyser for analysis. Upon completion of investigation, he

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filed the charge sheet against the aforesaid accused and one Babu Pandu Borge (the original accused no.4) before JMFC, Malkapur for committing offence under Section 302, 307, 326, 504 r/w. 34 of IPC and Section 25(1) and (2) of Indian Arms Act.

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Upon committal of the case, charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Prosecution in support of its case examined 15 witnesses. The accused examined two witnesses in defence. Upon appreciating the evidence and on considering the submissions of the learned APP for the state and the learned Counsel for the accused, the trial court acquitted the original accused no.4 of all the offences. The trial court also acquitted the aforesaid accused of the offences under Section 307, 326 r/w. 34 of IPC and 25(1)(3) of the Indian Arms Act but convicted and sentenced them for the offence as stated above. Being aggrieved by this conviction and sentence, the accused have preferred this appeal.

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We have perused the records and considered the arguments

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advanced by the learned counsel Mr.Pradhan for the appellants and the learned APP Mr.Dedhia for the State.

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The accused no.1 expired during the pendency of this appeal resulting in abatement of the proceedings against the accused no.1. The appellant no.1 having expired, the only point falling for our consideration is whether the prosecution proved beyond reasonable doubt that the accused nos.2 and 3 were involved in causing injuries to PW5 Mahadev Bhosale, PW6 Dattu Bhosale and PW8 Pandurang Bhosale.

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PW5 Mahadeo is stated to have been assaulted by the accused no. 3 Shripati. The evidence of PW5 Mahadev reveals that on 30.5.1991 at about 4.00 to 4.30 p.m. while he and PW10 Prakash were returning home from Bambawade market, the accused no.2 inflicted a blow of axe on his head. As a result, PW5 sustained injury and fell on the ground. PW5 has deposed that the accused no. 3 had attempted to give another blow but was prevented by PW10 Prakash. The accused no.3 thereafter ran to his house. In the meantime Ranga

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Bhosale, Jagu Bhosale, Daulu Bhosale came to the spot and took him home and later to the hospital at Bambawade. PW5 has further stated that there was a dispute between him and the accused no.3 Shripati due to cutting of the stones from an embankment. He has denied the suggestion that he and Jagannath had pelted stones on the house of Balu Borge. He had admitted that a criminal complaint was filed against him before the JMFC, Malkapur for assaulting Balu

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and that he was convicted in the said case.

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PW10 Prakash has deposed that on the relevant day he had gone to the house of his in-laws. He had met PW5 on his way home. While they were walking towards the village, the accused no.3, who was sitting under a mango tree, rushed towards Mahadeo and inflicted a blow of an axe on his head. Pw10 has further stated that he had prevented the accused no. 3 from inflicting the second blow.

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PW4 Daulu Bhosale has not witnessed the actual incident but he corroborates PW5 and PW10 to the extent that PW5 was lying on the road in injured condition. He has deposed that on the relevant

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date he had been to Bambawade market. While returning to the village, he saw PW5 Mahadev lying injured on the road. PW5 had told him that he was assaulted by the accused no.3. In the meantime, Ranga and Jagu Bhosale, also arrived at the spot. They took PW5 to his house and later to the hospital.

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PW12 Dr.Subhash, the medical officer attached to Bambawade hospital, examined PW5. The testimony of PW12 Dr.Subhash vis-à-vis the certificate at Exh.44 indicates that PW5 Mahadev had a lacerated wound with surrounding abrasion over left frontal region cross (x) shaped with irregular margins reddish in colour. There was no bleeding and no evidence of fracture of the skull. PW12 has opined that the injury was simple in nature and was caused by hard and blunt object.

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The evidence of the injured PW5 Mahadeo, which is duly corroborated by the ocular testimony of PW10 as well as the medical evidence proves beyond reasonable doubt that the accused no 3 had inflicted injury on PW5. The medical evidence indicates that the

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injury sustained by PW5 was simple in nature and was caused by a blunt and hard object. The medical evidence therefore indicates that the said injury was inflicted by the blunt side of the axe. In the light of these facts, the learned Trial Judge was perfectly justified in acquitting the accused of offence under section 307 of IPC and holding him guilty of the offence under section 324 of IPC.

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The evidence of PW7 Akkabai, the widow of Rajaram reveals that she and her husband Rajaram had gone to the house of the accused no. 3 to question him about the incident of assault on PW5. The evidence of PW4 Daulu PW6 Dattu and PW8 Pandurang also reveals that they too had followed Rajaram and Akkabai to the house of the accused. The testimony of PW4 reveals that Rajaram had questioned the accused as to why he had assaulted PW5. PW4 has deposed that the accused no2, since deceased, had shot Rajaram with a gun and caused his death. He has further deposed that the accused no 2, who was also armed with a gun had fired at Dattu and Pandu thereby caused injuries to Dattu and Pandu. PW4 therefore went to Shahuwadi Police Station and lodged report at Exh.25. He

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has admitted in his cross-examined that there was a dispute between

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Mahadev and the accused over removal of stones from the embankment. He has denied the suggestion that he, Mahadev and others had gone to the house of the accused and that they had caused injuries to the accused Krishna, Shripati and Babu.

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PW6 Dattu has deposed that on the relevant date at about 5.30 p.m. while he was returning home, he saw Rajaram and his wife standing in front of the house of accused no.3 Shripati. He has further deposed that accused no.3 Shripati and Babu were armed with sticks while accused no.2 Krishna was armed with a gun. He has deposed that Rajaram had questioned Shripati about the assault on Mahadev at which time accused Pandu fired a gun shot at Rajaram. He has deposed that accused Krishna also fired a gun shot at him and Pandu and as a result he and Pandu sustained injuries and they were taken to the hospital. This witness has denied having

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gone to the house of the accused armed with guns and sticks and assaulting the accused.

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PW8 Pandurang Bhosale has deposed that on the relevant date at about 5.45 pm he had heard some commotion in Borge Galli. When he went to the courtyard of Shripati Borge he saw Rajaram Borge and his wife Akkatai questioning the accused about assault on Mahadev. He has deposed that there was altercation between the accused and Rajaram and thereafter the accused Pandu fired a gun shot at Rajaram, as a result Rajaram fell down and died on the spot. He has deposed that Krishna was also carrying a gun and that he had fired a gunshot, due to which he and Dattu sustained injuries and were taken to the hospital. This witness has also denied that they had gone to the house of the accused armed with weapons and had assaulted the accused.

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PW7 Akkatai Bhosale, the widow of the deceased Rajaram has deposed that on the relevant date at about 5.30 pm her husband had returned home from Bambewadi market. Thereafter she and her husband had proceeded to Borje Galli. They went to the courtyard of accused Pandurang, and her husband had questioned the accused Shripati as to why he had assaulted Mahadev. She has deposed that

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the accused Pandurang was armed with gun and that he had fired the gun at her husband, as a result her husband died on the spot. She has further deposed that the accused Krishna Borge also fired a gunshot at Pandu Bhosale and Dattu Bhosale and as a result, they sustained bleeding injuries.

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These two injured witnesses i.e. Dattu and Pandurang were medically examined by PW14 Dr. Khot, the medical officer on duty at CPR Hospital, Kolhapur. The testimony of PW14 reveals that Dattu Bhosale, had a CLW on right parietal region. He has deposed that there was no fracture and that the injury was simple in nature. The testimony of PW14 further reveals that Pandu had a CLW on occipital region with fracture of occipital bone. He has deposed that the injury was dangerous and was caused by hard and blunt object.

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The evidence adduced by the prosecution amply proves that there was animosity between the family of the deceased and the family of the accused over removal of some stones of an embankment. The previous enmity between the accused and the

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family members of PW5 led to the incident of assault on Mahadev and consequent fallout between the accused and the family members of PW5 and resultant death of Rajaram at the hands of the accused no 1 and assault on PW6 Dattu and PW8 Pandurang by the accused no 2.

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The medical evidence proves that the injury sustained by PW.. Dattu was simple in nature. Though PW8 Pandurang had sustained a fracture of occipital bone, there is no evidence to prove that the said injury was so imminently dangerous as to cause death in ordinary course in nature. In the light of such evidence, in our considered view, the learned trial judge was justified in acquitting the accused no. 2 of offence under Section 307 and 326 of IPC and holding him guilty of offence under Section 324 of IPC.

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As regard the quantum of sentence, the accused no 3 has been directed to execute a bond of good behavior and hence there is no reason to interfere with the said sentence. The accused no. 2 has been sentenced to undergo sentence of rigorous

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imprisonment for two years and to pay fine of Rs.200/- in default rigorous imprisonment for 15 days for offence under Section 324 of IPC. The records reveal that the accused has already undergone sentence of 17 months and 25 days. As stated earlier the incident was an upshot of previous enmity. It is in evidence that the accused had also sustained injuries and cross complaint was filed against the injured witness in this case. Considering these circumstances, in our considered view, interest of justice would be met if the sentence imposed against the accused no.2 is reduced to the sentence already undergone.

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Under the circumstances, and in view of the discussion supra,

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the appeal is partly allowed. The substantive sentence imposed against the accused no.2 Krishna Bandu Borge is set aside and he is sentenced for the term of imprisonment already undgerone. His bail bond stands cancelled.

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(ANUJA PRABHUDESSAI, J.) (P.V.HARDAS, J.)

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Pandu S.Borge and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Pandu S.Borge and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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