Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court, Aurangabad Bench, upholding the conviction of the appellant for offence punishable under Sections 302 and 324 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'), while directing acquittal of two co-accused persons who had faced trial for the alleged commission of offences punishable under Sections 302 and 324 read with Section 34 IPC. All the three accused persons were found guilty of the aforesaid charges by learned II Additional Sessions Judge, Dhule.
(2.) Background facts in a nutshell are as follows: First Information Report was lodged by one Krishnaji at Dhule Police Station on 7.7.2001 at 0030 hrs. It was alleged by him in the report that on 06.07.2001 he was with his father in the thrashing floor. One Bandu Rambhau Patil is his uncle. Partition between his father and uncle Bandu took place prior to the lodging of the report. Despite partition, the agricultural lands were standing in the name of his father Vithoba. In the evening of 06.07.2001, at about 7.00 p.m. a calf which was tied in his thrashing floor, untied itself and went to the thrashing floor of his uncle Bandu. Krishnaji followed the calf to the thrashing floor of his uncle Bandu, caught hold of it and brought it back to his thrashing floor. At that time his uncle Bandu, Accused No. 1 Baban and Accused No. 2 Navnath were present. They scolded him on account of the calf entering their thrashing floor. He explained that calf had un-tied itself and that it was not a deliberate act on his part. He returned to his thrashing floor along with the calf. After some time, his uncle Bandu and Accused No. 2 Navnath and Accused No. 1 Baban came to their thrashing floor and hurled abuses at them. A-1 assaulted his father with an axe. The stroke was given on the head of Vithoba. His uncle Bandu assaulted Krishnaji and his father with a stick. Accused No. 2 Navnath also assaulted him and his father with a stick. The assailants after noticing the injuries, left for their house. He along with his father Vithoba returned to his house. On the way to their house, they were also accompanied by one Prakash Bhandane - husband of his aunt. At about 7.15 p.m. his mother Sindhubai was also abused by Accused Nos. 1 and 2 and other co-Accused, who are acquitted by the trial Court. At that time Prakash (PW 5) requested them not to scold Sindhubai. Accused No. 2, Accused No. 1 and other Accused persons assaulted his mother Sindhubai as well as Prakash (PW 5). At that time Accused No. 1 assaulted Prakash (PW 5) with sword, at his neck. Sindhubai was also beaten by other lady accused persons by fists and blows. This beating was witnessed by Meerabai, Nadarbai, Sadashiv etc. and these witnesses have rescued Sindhubai and Prakash (PW 5). Thereafter, Krushnaji, in an auto-rickshaw went to Dhule for lodging the report and for treatment. On 06.07.2001 PSI Hiralal (PW 11) was on duty at Dhule Taluka Police station. Krushnaji's report was registered by Police Station Officer at Cr. No. 169 of 2001, under Sections 147, 148, 149, 307, 324, 504, 506 of IPC. Investigation was taken over by PW 11 Hiralal. He registered the offence on 07.07.2001 at 00.30 hrs. At about 1.30 a.m. on 07.07.2001, he arrested Accused Nos. 1 to 6. In the morning of 07.07.2001, he drew panchanama of the scene of offence (Exhibit 80) with the assistance of PW 8 Shantilal, a panch witness. At the time of drawing spot panchanama ordinary soil as well as soil mixed with the blood was seized, kept in a packet and packet was sealed. Along with Shantilal (PW 8), one more panch witness Gopichand was present. Hiralal (PW 11), thereafter, interrogated some witnesses and recorded their statements. Thereafter, he handed over the investigation to API Deepak Gotmare (PW 12). API Deepak (PW-12) held inquest over the dead body of Vithoba in the presence of two panchas and recorded a panchanama to that effect, which is at Exhibit 47. He also recorded statements of Sindhubai, mother of PW 1 Krishnaji. On 10.7.2001 Accused No. 4 showed readiness and willingness to disclose certain informations. API Deepak (PW-12) called two panchas, namely; Ravindra and Aba. Information given by Accused No. 4 Bandu was recorded in the presence of panch witnesses under Section 27 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). This memorandum of panchanama is at Exhibit 93, which led with the discovery of weapon is proved in the evidence of PW 3 Aba as well as in the evidence of API Deepak (PW 12). In pursuance of the information disclosed, the panch witness and Police Officers were led by Accused No. 4 and the weapon alleged to have been used in the commission of crime i.e. stick was discovered at the instance of Accused No. 4. Said weapon was attached and seized under panchanama Exhibit 94. API Deepak (PW 12) also seized a steel bucket at the instance of Accused No. 2 from his house. He also seized the stick at the instance of accused No. 2 from his house. According to API Deepak (PW 12) Accused No. 1 Baban made a disclosure statement regarding an axe. Said statement was recorded under panchanama in the presence of panch witnesses. According to the information received and at the instance of Accused No. 1, said axe was discovered by API Deepak (PW 12). This panchanama is at Exhibit 83. This panchanama is proved in the evidence of API Deepak (PW 12). Under this panchanama Exhibit 83, two weapons had been discovered at the instance of Accused No. 1, namely; axe (Article 17) and blade of harrow (Article 18). To prove this panchanama, Exhibit 83, prosecution relied upon the evidence of Aba (PW 3) as well as Deepak (PW 12). API Deepak (PW 12) also clarified in his evidence that xerox copy of the panchanama is placed on record since the original copy of page No. 2 of the panchanama was found missing at the time of the trial. This xerox copy was exhibited in the evidence of API Deepak (PW 12). This witness also caused the examination of accused and collected blood samples. He, thereafter handed over investigation to API Satish Jadhav. API Satish (PW 13) recorded statements of two witnesses. He arrested Accused No. 8 Kamlabai on 03.08.2001. Clothes of the deceased were seized, after the post mortem under seizure panchanama. Investigation was undertaken. API Satish PW-13 filed charge sheet against the accused persons. On committal of the case of the Court of Sessions, charge was framed by the learned Additional Sessions Judge, Dhule. It is to be noted that in all seven accused persons faced trail and out of them four persons were acquitted by the trial Court. The trial Court noticed that the case of prosecution primarily rested on the ocular evidence of PWs 1, 5 and 9. Placing reliance on their evidence the trial Court found the accused persons guilty while directing acquittal of four of the accused persons before it. The matter was carried in appeal before the High Court which as noted above confirmed the conviction of the appellant while allowing the appeal filed by the co-accused persons. It did not accept the plea of accused appellant that a case relatable to Section 302 IPC is not made out as single blow was given.
(3.) In support of the appeal learned Counsel for the appellant submitted that the factual scenario clearly shows that over petty matter the dispute arose and in course of sudden quarrel the blow was given.;