2000 ALL MR (Cri) 1445
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.A. PATIL, J.

Ankush Motiram Karbhari & Ors Vs. The State Of Maharashtra

Criminal Appeal No. 287 of 1992,Criminal Appeal No. 340 of 1992

28th April, 2000

Petitioner Counsel: Shri P.K.DHAKEPHALKAR
Respondent Counsel: Mrs. USHA KEJARIWAL
Other Counsel: Shri NITIN SEJPAL

(A) Criminal P.C. (1973), Ss.378 and 386 - Cases arising out of same incident - Are counter cases - Cases tried separately and decided separately on merits of evidence in each case - Appeals arising from decision of trial court - Those principles of trial of cases apply to appeals also - Therefore, each appeal has to be decided on merits of each case though both appeals are being disposed of by common judgment.

78 BLR 325 Rel.on. (Para 14)

(B) Penal Code (1860), S.304 Part II - Culpable homicide - Death of a boy of 14 years - Accused dealing single blow - Conviction of accused under S.304 Part II and 5 years RI imposed - Sentence could not be reduced. (Para 23)

Cases Cited:
Laxman Singh v. State of Bihar, AIR 1976 S.C. 2263 [Para 13]
Rajendra Singh v. State of Bihar, JT 2000 (4) S.C. 293 [Para 13]
Anil Sonawane v. State, 78 B.L.R. 325 [Para 14]
Shamrao Vishnu Patil v. State of Maharashtra, 1998 All MR (Cri) 834 [Para 25]
State of Karnataka v. Ganpati, 1994 Supreme Court Cases (Cri) 1165 [Para 25]


JUDGMENT

JUDGMENT:- This common judgment will dispose of these two appeals which arise out of two separate judgments delivered by the VIth Additional Sessions Judge, Thane on 26th May 1992 in two Sessions Cases, that is, Sessions Case No. 415 of 1986 and Sessions Case No. 469 of 1986. Both the Sessions cases arise out of a common incident which took place on the night of 29.4.1986 at about 9.15 p.m. at village Kalavali, Taluka Kalyan, District Thane. In the said incident, a boy by name Bharat Karbhari was killed and eight persons were injured. The two Sessions cases, being counter cases, most of the witnesses in one case are the accused persons in the other case. Both the cases were tried separately but simultaneously by the learned trial Judge.

2. In Sessions Case No. 415 of 1986 (hereinafter referred to as the first case), in all six accused were put on trial for various offences, including the offence of murder under Section 302 of the Indian Penal Code (for short, IPC). The learned trial Judge acquitted three of them of the offences but found the remaining three accused, namely, A-1 Ankush, A-2 Ashok and A-4 Lahu guilty of the following offences. The learned Judge, accordingly, convicted and sentenced them as follows:

A-1 Ankush: Section 304 Part II, rigorous imprisonment for five years and a fine of Rs.500/-, in default to suffer further rigorous imprisonment for two months.

A-2 Ashok : Section 323 IPC, rigorous imprisonment for six months and a fine of Rs.100/-, in default to suffer further rigorous imprisonment for 15 days.

A-3 Lahu : Section 324 I.P.C., rigorous imprisonment for one year and to pay a fine of Rs.300/-, in default to suffer further rigorous imprisonment for one year.

Feeling aggrieved by this order, these three accused have filed Criminal Appeal No. 287 of 1992.

3. In the Sessions Case No. 340 of 1992 (hereinafter referred to as the second case), six accused were put on trial for various offences. However, the learned trial Judge acquitted four of them on all counts and found only two accused, namely, A-1 Kisan and A-2 Ananta guilty. Accordingly, the learned trial Judge convicted and sentenced both of them as under :

A-1 Kisan : Section 324 I.P.C. - rigorous imprisonment for one year and to pay a fine of Rs.300/-, in default to suffer further rigorous imprisonment for one month

A-2 Ananta: Section 324 I.P.C. - rigorous imprisonment for one year and to pay a fine of Rs.300, in default to suffer further rigorous imprisonment for one month.

Feeling aggrieved by this order both the accused have filed Criminal appeal No. 340 of 1992.

4. I shall first state the prosecution case as disclosed by the First Information Report (for short, F.I.R.) Exhibit 20 in the first case. The same was filed by Kisan Karbhari, who is A-1 in the second case. He is a resident and Police Patil of village Kalavali. The complainant Kisan as well as the witnesses and accused are residents of the village Kalavali and there was a dispute between them in connection with a land. The incident in question took place on 29.4.1986 at about 9.15 p.m. in front of the house of PW2 Motiram, PW-1 Ankush, PW2 Nakul, PW4 Ashok and PW5 Lahu are the sons of Motiram PW2.

5. On 28.4.1986, there was a village fair and on account of that PW3 Motiram put up a pendal in front of his house. At the relevant time, songs were being played on a stereo and the same were being released with the help of loud speakers. It is alleged that a loud speaker was directed towards the house of PW6 Ananta. Due to the loud noise of the loud speaker, there was a lot of disturbance and Ananta, therefore, felt annoyed. He, therefore, approached the accused and asked them as to why they were playing stereo so loudly when the fair was over on the previous day. At that time, all the accused were present in the pendal and they were dancing to the tunes of the songs. On account of the objection taken by PW6 Ananta, there was an exchange of hot and abusive words. PW6 Mahadeo therefore, went there and tried to intervene. It is alleged that at that time A-4 Lahu brought a spear from his house and gave a blow of it on the right side of the waist of PW6 Ananta Namdeo. At that time, his son Bharat was standing behind him. It is alleged that A-1 Ankush took up spear and gave a blow of it on the abdomen of Bharat, who sustained a blood injury and fell down on the ground. Upon that, the complainant Kisan PW1 rushed to rescue Bharat. At that time, A-6 Nakul gave a blow of an iron bar on the right wrist of the complainant Kisan. In the meantime, the complainant's sister Sita PW3 rushed to the rescue of his brother. However, A-2 Ashok gave her a blow with an iron bar on her head. It is further alleged that A-5 Ganesh gave a spear blow on the left auxiliary region of Ananta PW6. At that time, Shantaram PW5 rushed to his rescue,but A-3 Motiram gave sword's blows on both his hands.

6. After the incident, injured Bharat was put in a bullock cart, brought to Adharwadi, from there he was taken in a rickshaw to the Municipal Hospital at Kalyan. The Medical Officer, on examining Bharat, declared that he (Bharat) had died. The complainant Kisan, PW1 lodged his complaint at the Mahatma Phule Chowk Police Station, Kalyan, on the same night at 10.10 p.m. On the basis of the said complaint, the police registered a case against all the 6 accused for the offences under Sections 147, 148, 302, 324, 325, 504 read with Section 149 of the IPC. The injured witnesses were got examined and given treatment in the Municipal Hospital at Kalyan. The investigation of the case was taken up by Police Inspector Kulkarni (PW9). The accused were arrested on different dates. In due course, the investigation was completed and all the six accused came to be charge sheeted in the Court of the Judicial Magistrate First Class, Kalyan, who later on committed the case to the Sessions Court for trial.

7. So far as second case is concerned, the facts, as stated in the F.I.R. (Exhibit 25), which was lodged by the complainant Ankush PW1 are to the effect that there is a land dispute and litigation is going on between the parties in connection with the partition of certain lands and, therefore, the relations between them are strained. According to the complainant Ankush, on the night of 29.4.1986 at about 9.15 p.m., his brother Nakul PW3 was coming on his motor-cycle and proceeding to his house. It is alleged that at that time, all the six accused, armed with swords and axes obstructed him on the road, in front of the house of A-2 Ananta. Thereafter, A-1 Kisan and A-2 Ananta gave blows of swords to Nakul, while A-3 Shantaram hit an axe on the head of Nakul. At that time, the complainant Ankush and others were sitting on the otta of their house. On seeing the assault, all of them rushed to the rescue of Nakul. At that time, A-1 Kisan and A-2 Ananta gave blows of swords to the complainant Ankush. The complainant's brother Ashok PW4 was also assaulted by A-5 Rama, who dealt a blow of sword on his head, while A-6 Hakunath also gave a blow of sword on the waist of Ashok. It is alleged that the accused also assaulted the complainant's father Motiram PW2 by means of swords and axes. Thereafter, the accused threw stones at the house of Motiram PW2 and caused damage by breaking tiles on the roof.

8. On the same night, the complainant Ankush went to the Mahatma Phule Police Station at Kalyan and lodged his complaint at 10.20 p.m. against the six accused, alleging that the accused had assaulted him, his brothers, Nakul, Ashok and his father Motiram by means of deadly weapons and also committed mischief by causing damage to the tiles on the roof. On the basis of the said complaint, the police registered a case against the six accused under C.R. No. 170 of 1986 for the offences under Sections 147, 148, 307, 323, 336, 341, 427 read with Section 149 of the IPC. The investigation of this case was also carried out by the same Investigating Officer, that is, P.I.Kulkarni PW 11, who later on arrested the accused and after completing the investigation, filed charge sheet against them in the Court of the Judicial Magistrate First Class, Kalyan. The case was thereafter committed to the Court of Sessions, Thane, for trial.

9. In the first case, the learned trial Judge framed charge against the accused for the offences under Sections 147, 148, 302, 323, 324 and 325 read with Section 149 of the IPC. Alternatively, he charged all the six accused for the offences under Sections 323, 324, 325 and 302 read with Section 34 of the IPC. All the accused pleaded not guilty to the charge and contended that, on the contrary, they were assaulted by the complainant and other witnesses. The accused did not lead any evidence in their defence. In support of its case, the prosecution examined in all ten witnesses, including the five injured witnesses, two Medical Officers and the Investigating Officer. The learned trial Judge, however, did not accept the entire prosecution case and he proceeded to convict and sentence only three accused, that is, A-1 Ankush, A-2 Ashok and A-4 Lahu, as indicated above.

10. In the second case, the learned trial Judge charged all the six accused for the offences under Sections 147, 148, 307, 323, 336, 341 and 427 read with Section 149 of the IPC. Alternatively, he also charged them for the offences under Sections 307, 323, 336, 341 and 427 read with Section 34 of the IPC. All the accused pleaded not guilty to the charges and denied to have assaulted the witnesses. They contended that the assault was made on them by the witnesses. The accused did not lead any evidence in support of their defence. The prosecution examined, in all, eleven witnesses, including the three injured persons, two Medical Officers and the Investigating Officer. In this case also, the learned trial Judge did not fully accept the prosecution evidence against all the accused and proceeded to convict and sentence only two accused, namely, A-1 Kisan and A-2 Ananta, as indicated above.

11. I have heard Shri. P.K.Dhakephalkar, the learned Advocate for the appellants-accused in the first case (Criminal Appeal No. 287 of 1992) and Shri. Nitin Sejpal, the learned Advocate for the appellants-accused in the second case, that is Criminal Appeal No. 340 of 1992. I have also heard Mrs. Usha Kejariwal, learned Additional Public Prosecutor for the Respondent-State in both the cases. With the help of the learned Advocates, I have gone through the entire oral and documentary evidence on record in both the cases.

12. The facts of both the cases show that the place of the incident in each case is one and the same. It happened in the open space in front of the house of Motiram Karbhari, who is A-3 in the first case and PW2 in the second case. Therefore, the Investigating Officer P.I. Kulkarni has made only one spot panchanama on the next morning of the incident. His evidence shows that when he visited the spot on the next morning, he found blood lying on the spot. It is also material to note that the persons on both the sides received injuries in the incident and the medical evidence on record shows that most probably they were caused at a point of time when the incident took place. The time of the incident stated by the witnesses in both the cases is practically the same. The F.I.R. in the second case came to be lodged within ten minutes after the F.I.R. in the first case was lodged. It is, therefore, obvious that the incidents alleged in the two cases are not two different incidents but only one incident. Shri. Dhakephalkar submitted that there was a free fight between the parties and the persons from both the sides were injured. However, according to him, the evidence of the witnesses in the first case is quite discrepant and as such it is unsafe to rely upon them to hold the accused guilty of any of the offences. A similar submission was made by Shri. Nitin Sejpal, the learned Advocate for the appellants-accused in the second case. Mrs. Usha Kejarwal, the learned APP for the Respondent-State, however, pointed out that there is no dispute about the presence of all the accused in both the cases at the place of the incident. She further pointed out that there is no dispute about the place and time of the incident. According to her, although there are certain discrepancies in the evidence of the eye-witnesses, they are of minor nature. She emphasized that the witnesses in both the cases are unanimous on the role played by the appellants-accused. According to her, therefore, there is no reason or scope to interfere with the order of conviction and sentence passed by the trial Court in both the cases.

13. On going through the evidence of the injured witnesses in both the cases, it is found that all of them have made a conscious effort to highlight the acts of their adversaries and suppress their own. This is obviously out of their anxiety to prove the guilt of their adversaries and save themselves from conviction in the counter case. The witnesses, in both the cases, have not at all stated in their examination-in-chief about the injuries on the persons of some of the accused. In Laxman Singh v. State of Bihar, AIR 1976 S.C. 2263, it was held that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance, from which the Court can draw the following inferences :

(i) That the prosecution has suppressed the genuineness and origin of the occurrence and has thus not presented the true version.

(ii) That the witnesses who had denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;

(iii) That, in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case.

In the same case, the Supreme Court further pointed out that there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far oughtweighs the effect of the omission on the part of the prosecution to explain the injuries. In a recent decision in Rajendra Singh v. State of Bihar, JT 2000 (4) S.C. 293 it is held that if a grievous injury remains unexplained, then prosecution case may be doubted but where the evidence is trustworthy, non-explanation is not fatal. In the first case, it was suggested to the injured witnesses during their cross-examination that the injuries caused by the accused were in the exercise of their right to private defence. However, this suggestion was denied by the witnesses. In the second case, it was tried to be suggested to the witnesses that at the relevant time, there was a big commotion. As a result of which, people in the village gathered on the spot. Then there was a melee in which the witnesses sustained their injuries. Naturally, this suggestion was denied by the witnesses. It is in the background of this position that this Court is required to consider the legality and correctness of the order of conviction and sentence of the appellants accused in both the cases.

14. As already stated, both the cases arise out of the same incident, which took place on the night of 29.4.1986 at about 9.15 p.m. They are, therefore, counter-cases which were tried separately and decided separately on the merit of the evidence in each case. Therefore, before undertaking the exercise of re-examining the evidence, it would be advantageous to make a reference to the decision of a Division Bench of this Court in Anil Sonawane v. State, 78 B.L.R. 325, wherein it was observed: "...When two cases arise on the basis of cross-complaints based upon the same incident, it is desirable, in the interest of justice, that both cases are heard one after the other by the same Presiding Judge and judgments are delivered after the completion of hearing in both the cases. This will avoid a possible contingency of conflicting findings being given. Each case must be decided on the evidence led on the record of that case and the Presiding Judge shall not use evidence in one case as the evidence in the other," (emphasis provided). Whatever applies to the trial of the case, therefore, also holds good for the appeals arising out of the said trials. This being the position, I propose to decide each appeal on the merits of the case though both the appeals are being disposed of by this common judgment.

15. So far as the first case is concerned, there is death of one person and injuries sustained by five witnesses. Although, in all, six accused were tried three of them were acquitted by the trial Court. The State did not file any appeal against the order of acquittal of those accused. Therefore, it is unnecessary to consider and examine the evidence in respect of those accused who have been already acquitted. The scrutiny and re-examination of the evidence will, therefore, be restricted, in so far as the same relates to the appellants-accused, who have been convicted. As already stated, a boy by name Bharat, who was fourteen years of age, was killed in the incident. The evidence of the witnesses in this case shows that after the incident, Bharat was immediately removed to the Municipal Hospital at Kalyan on the same night, but the Medical Officer declared him dead. The post mortem examination of the dead body of Bharat was carried out by Dr. Rammurthy (PW4) on the next day, and he found two external injuries on his person. The first was an incised wound on the base of the left thumb, oblique in direction - 1/2" x 1/4" x 1/8". The second injury was an incised penetrating wound on the left side of the abdomen in line with umbilicus, horizontal in direction, starting 3/4" away from ambilicular and extending laterally, 2.3/4" x 3/4", cavity deep. It was an oval shaped wound with clean-cut margins. Loops of small intestine were protruding from the wound. According to Dr. Rammurthy, both the injuries were ante-mortem injuries and they were caused by a sharp and cutting object. He opined that they were possible by a spear like the spear (Mudemmal Article 10) . Dr. Rammurthy opined the cause of death was shock due to severe external and internal hemorrhage due to homicidal stab wound in the abdomen, and rupture of intestine. In view of this medical evidence regarding the cause of death of deceased Bharat, there can be no doubt that he died homicidal death.

16. In this case, in all five witnesses sustained injuries and they are the complainant Kisan (PW1), Mahadeo (PW2), Sitabai (PW3), Shantaram (PW5) and Ananta (PW6). Out of these witnesses, all except Sitabai, are accused persons in the counter-case. All these injured persons were referred to the Medical Officer of the Municipal Hospital of Kalyan and they were examined by Dr. (Mrs.) Mumbaikar (PW7). Her evidence shows that the complainant Kisan had sustained a fracture of left side wrist joint, which, according to her, might have been caused by a hard and blunt object. On the person of Mahadeo (PW2), Dr. Mumbaikar found only one injury and it was an incised wound on the right side lower back 1/2" x 1/4" x skin deep. It was a fresh injury, which could be caused by a sharp cutting instrument. Sitabai (PW3) was found to have one contusion lacerated wound on the right side occipital head 2" x 1/2" x flesh deep. According to Dr. Mumbaikar, it was a fresh injury, which could have been caused by a hard and blunt object like an iron bar. Shantaram (PW 5) was found to have sustained one incised wound on the right of the thumb 1/4" x bone deep. It was suspected that he had sustained a fracture of his bone. According to Dr. Mumbaikar, the injury of Shantaram was fresh and it might have been caused by a sharp and cutting instrument like a spear. The last witness, namely, Ananta (PW6) was found to have sustained two injuries - the first was an incised wound on the left side of abdomen 1/4" x 1/4" x 1/2". The second injury was a contusion lacerated wound on left side end of the eye-brow 1/4" x 1/4" x fresh deep. There is nothing in the cross-examination of Dr. Mumbaikar, which can create any doubt about the fact that these witnesses had sustained their respective injuries at the relevant time. However, it is necessary to point out that through the cross-examination of Dr.Mumbaikar, the defence brought on record the fact that the appellant-accused had also sustained incised wounds which were found fresh. A-1 Ankush, who was examined by Dr. (Mrs.) Mumbaikar had suffered incised wound on the right side back of palm 1/4" x 1/8" x fresh deep. The second injury on his person was also an incised wound on the right side inner palm below the middle finger 1/2" x 1/8" x flesh deep. Dr. Mumbaikar stated that both the injuries were possible by a sharp and cutting object like spear. As regards Accused No. 2 Ashok, he was found to have an incised wound on the left side parietal head near hair margin 1/2" x 1/4" x bone deep. There was a fracture of the bone. According to Dr. (Mrs.) Mumbaikar, the injury was fresh and it was possible by a sharp and cutting object. Taking into consideration the medical evidence regarding the injuries sustained by the witnesses as well as the appellants-accused, it is obvious that they must have been caused at the same time.

17. All the injured witnesses have stated that the six accused, who were present, were dancing to the tunes of the songs, which were being played on the stereo and released through a loud speaker, which was directed towards the house of Ananta (PW6). It was suggested to Ananta (PW6) in the cross-examination that the volume of the stereo was not big and that he had not gone to the house of Motiram to request them to tone down the volume. However, I do not find any substance in this suggestion. It is common knowledge as to how stereos with loud speaker are used all over the country, particularly in villages. They cause nuisance and annoyance to all the persons in the vicinity. Therefore, there is nothing improbable if Ananta PW6 had gone to the house of A-3 Motiram to tell them to tone down the volume. Since, admittedly, the relations between the parties were already strained on account of some land dispute, it is obvious that the suggestion of Ananta PW6 must not have been liked by the accused. It is also possible that Ananta PW-6 might not have been submissive in making this suggestion to the accused. However, one thing is very much clear from the evidence of all the witnesses that a quarrel ensued between Ananta PW6 and the accused in connection with the toning down of the volume of the stereo. Having regard to this fact, it was quite probable that Mahadeo PW2 also went there to intervene in the quarrel.

18. The trial Court has convicted the above mentioned three appellants-accused individually for assaulting deceased Bharat, Sitabai PW3 and Mahadeo PW2. So far as the evidence of the above-mentioned 5 witnesses is concerned, there they are unanimous on the point that it was A-1 Ankush, who gave a spear blow on the abdomen of deceased Bharat. It was submitted on behalf of the appellants-accused that Sitabai PW3 and Shantaram PW5 could not have seen the actual incident, since they went there afterwards. There appears to be much substance in this contention. So far as Sitabai PW3 is concerned, she has stated that at the relevant time, she was washing clothes outside her house and that from the place where she was washing the clothes, the courtyard of the house of A-3 Motiram was visible. According to her, she heard the shouts of her brother Mahadeo and, therefore, she went to the spot, and saw Mahadeo being assaulted by A-4 Lahu. She also claims to have seen A-1 Ankush assaulting her brother Mahadeo by means of a spear. However, her cross-examination shows that she did not state these facts in her statement before the police and that she was telling these facts before the Court for the first time. The contradictions in her evidence are duly brought on record and got proved through the evidence of the Investigating Officer, who recorded her statement. In the first instance, it appears rather unnatural that she was washing clothes outside the house at 9.15 p.m. It is common knowledge that women in villages generally do this type of work in the morning. Sitabai might be present in the house and she appears to have reached the spot after the incident was over. It is true that Sitabai herself sustained a contused lacerated wound on her head and she attributes that injury to A-2 Ashok. However, it is difficult to believe that A-2 Ashok would give a blow of an iron bar on the head of Sitabai. He had no reason to do so as she had not offended him in anyway. It is quite possible that in the fight which was going on, Sitabai tried to rescue her brother Mahadeo and in that process, she sustained an injury on her head. Therefore, the causing of an injury on her forehead cannot be said to be an intentional act. Consequently, A-2 Ashok deserves to be given benefit of doubt. According to Shantaram (PW5), he arrived on the spot after Sitabai reached there. If that is so, then, he also must not have any opportunity to see the actual assault on Bharat and Mahadeo. However, the fact is that Shantaram sustained an incised wound on his right thumb which was caused by a sharp weapon at a point of time when the incident in question took place. Therefore, his version that he had seen the actual assault on deceased Bharat and Mahadeo is found to be difficult of belief, still there is no reason to discard his version, in so far as it relates to the assault on him.

19. It is true that the injured witnesses have not stated anything as to how Accused No.1 Ankush and Accused No.2 - Ashok sustained their respective injuries. But the presence of the injured witnesses, particularly, of the complainant Kisan (PW1), Mahadeo (PW2) and Ananta (PW6) cannot be doubted. It is also true that the relations between the witnesses and the accused are not good. But that does not mean that whatever the witnesses have stated cannot be true. It is a fact that Bharat, a young son of Mahadeo, died in the incident on account of a serious injury inflicted on his abdomen. The witnesses have attributed the causing of this injury to Accused No. 1 - Ankush only. The version of complainant Kisan (PW2) in this respect stands corroborated by his F.I.R. Exhibit 20, which was lodged on the same night within an hour. The same is the case with regard to the causing of an injury to Mahadeo (PW2). The trial Court has considered the evidence of the witnesses and found Accused No. 1 - Ankush, Accused No.2 - Ashok and Accused No.4 - Lahu responsible for the assault. However, in doing so, the trial Court has held each of these three accused responsible for their respective individual acts. For the reasons already stated, I am of the opinion that the case against Accused No.2 - Ashok is doubtful. Therefore, the order of conviction and sentence passed by the trial Court as against Accused No.1 - Ankush and Accused No.4 - Lahu only deserves to be confirmed.

20. Coming to the second case, there are three injured witnesses, namely, complainant Ankush (PW1), Nakul (PW3) and Ashok (PW4). The evidence of Dr. (Mrs.) Mumbaikar (PW9), who was examined by the prosecution in this case also shows that Ashok had an incised wound on the left side of his parietal region 1/2" x 1/4" x bone deep. She has stated that there was a fracture. However, it is not known on what basis she ascertained the fracture. Although, Ashok appears to have been referred to Central Hospital, Ulhasnagar, for further treatment, no evidence, such as, x-ray photo showing that the injury sustained by Ashok was a fracture injury, is forthcoming. Anyway, Dr. (Mrs.) Mumbaikar has stated that the injury of Ashok was a fresh injury caused by a sharp and cutting weapon. On the person of Ankush PW1, Dr. Mumbaikar found two injuries - the first of which was an incised wound on the right side back of arm 1/4" x 1/8" x flesh deep. The second was also an incised wound on the right side inner palm below the middle finger 1/2" x 1/8" x flesh deep. She has further stated that Ankush complained of pain on the left side of his scapular region. The injuries of Ankush were found to be fresh and caused by a hard and blunt object. As regards Nakul (PW3), three injuries were noticed and they were : (i) incised wound on the left side parietal head 2" x 1" x bone deep - fracture suspected, (ii) incised wound on the right side of forehead 1" x 1/4" x flesh deep, (iii) right side middle finger was found crushed. It appears that Nakul was also transferred to Central Hospital, Ulhasnagar. However, no documentary evidence, such as, x-ray photo showing that Nakul had sustained fracture injuries was produced by the prosecution. The injuries of Nakul were found fresh and according to Dr. (Mrs.) Mumbaikar, they were caused by a sharp and cutting object. It will thus be seen that the injuries of these three witnesses were caused at a point of time when the incident in question took place.

21. The trial Court has convicted the appellants accused for causing injuries to Ankush PW1 and Nakul PW3 and for that purpose reliance is placed on the oral evidence of Ankush PW1, Motiram PW2, Nakul PW3, Ashok PW4, Lahu PW5 and Ganesh PW6. A perusal of the evidence of these witnesses shows that they are unanimous on the point that Nakul was given blows of swords, both by Accused No.1 - Kisan and Accused No.2 - Ananta. They are further concurrent on the point that these two accused also gave blows of swords to Ankush PW1. There is no material contradictions or discrepancies in evidence of any of these witnesses, so far as their version about the assault on Ankush and Nakul is concerned. Moreover, their presence on the spot cannot be seriously disputed. The version of the complainant Ankush PW1 about the assault on himself and his brother Nakul is corroborated by the F.I.R., which he lodged on the same night at 10.20 p.m. The medical evidence also lends substantial corroboration to the time of causing the injuries as well as the manner in which they could be caused. The trial Court has carefully considered the evidence in this and accepted only that part of the evidence which is found to be creditworthy. I do not think that any other view of the matter is possible on re-examination of the evidence. I am, therefore, not inclined to accept the submissions made on behalf of the appellants-accused and in my opinion they have been rightly convicted and sentenced by the trial Court.

22. Shri. Dhakephalkar, the learned Advocate for the appellants-accused in the first case (Criminal Appeal No. 287 of 1992) and Shri. Nitin Sejpal, the learned Advocate for the appellants-accused in the second case (Criminal Appeal No. 340 of 1992), however, made certain submissions with regard to the quantum of sentence awarded to the appellants-accused and prayed for reduction of sentence. Both of them pointed out that the incident in question took place fourteen years back; that the accused in both the cases are neighbours and that there is no complaint against them of commission of any offence. Similarly, they never misused the liberty granted to them on account of their release on bail. Mrs. Kejariwal, the learned APP, however, strongly opposed any reduction of sentence awarded to the appellants-accused and submitted that looking to the nature of the offences proved against them, there is no warrant to reduce the sentence.

23. So far as Accused No. 1 - Ankush is concerned, he has been found guilty of the offence under Section 304 Part II and has been sentenced to suffer rigorous imprisonment for five years with a fine of Rs.500/- in default to suffer further rigorous imprisonment for two months. The maximum sentence provided for this offence is imprisonment of either description which may extend to ten years or with fine or with both. The learned trial Judge has already shown sufficient leniency to Accused No. 1 - Ankush by not awarding the maximum sentence of imprisonment. Shri. Dhakephalkar points out that this is a case of a single blow. However, it cannot be ignored that death of a fourteen year boy was caused due to the act of Accused No. 1 - Ankush. Therefore, I am not inclined to reduce the sentence of Accused No. 1-Ankush.

24. So far as Accused No. 3 - Lahu in the first case and Accused No. 1 - Kisan and Accused No.3 - Ananta in the second case are concerned, all of them have been convicted of the offence under Section 324 IPC and each of them has been sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 300/-, in default to suffer rigorous imprisonment for one month.

25. In support of the plea of reduction in sentence, reliance is placed upon two decisions. The first is Shyamrao Vishnu Patil v. State of Maharashtra, 1998 ALL MR (Cri) 834, wherein a Division Bench of this Court reduced the sentence of the petitioner-accused for the offence under Sections 324 and 326 read with Section 34 of the IPC to the period already undergone by him. However, the amount of fine was raised to Rs.17,000/- in default to suffer rigorous imprisonment for two years. In that case, the petitioner-accused was sentenced by the trial Court to undergo rigorous imprisonment for six years and to pay a fine of Rs.3000/-, in default to suffer further rigorous imprisonment for one year. He was in detention for a period of two weeks. The Division Bench, after taking into consideration certain facts, including the fact that the incident had taken place eleven years back and the absence of any criminal antecedents or previous conviction, reduced the substantive sentence as stated above and observed that the sentence should be either deterrent or reformative. The sentence of two years would not be deterrent. It was further observed that on the contrary, a sentence of fine and the pinch experienced by the petitioner of not paying it would make him introspect over what he has done and perhaps make him a better person. Thus, it would not only be reformative but also in consonance with the current philosophy of sentence which evaluates the sentencing situation from the stand-point of the victim also. The second case relied upon is the State of Karnataka v. Ganpati 1994 Supreme Court cases (Cri) 1165, wherein the accused was convicted of the offence under Section 324 of the IPC by the trial Court and sentenced to suffer rigorous imprisonment for two years. The Supreme Court pointed out that the occurrence had taken place more than twelve years back and that the accused had been on bail all throughout. It was observed that it would not be proper to sentence the accused to any term of imprisonment at that stage and sentence him to jail, more particularly, when the present trend in the field of penology is to reform the offender rather than to make him a hardened criminal. It is necessary to point out here that the trial Court had convicted the accused also of the offence under Section 376 read with Section 511 of the IPC and sentenced him to suffer rigorous imprisonment for three years, but the High Court acquitted him of both the charges. The Supreme Court restored the conviction of the accused for the offence under Section 324 and let him off on payment of a fine of Rs. 2000/- in default to suffer rigorous imprisonment for one year. I think, that the observations made in both the cases apply with equal force to the present appeals also. I am, therefore, inclined to reduce the sentence of the above-mentioned three accused. So far as conviction for the offence under Section 324 of the IPC is confirmed in these appeals. However, reduction of substantive sentence will have to be compensated by suitable increase in the amount of fine. With these observations, I pass the following order:

ORDER

26. (i) Criminal Appeal No. 287 of 1992 is partly allowed. The order of conviction and sentence passed against Accused No.2 - Ashok for the offence under Section 323 of the IPC is hereby quashed and set aside and he is acquitted of that offence. Fine, if any, paid by him on that count shall be refunded to him.

(ii) The appeal is dismissed in so far as Accused No.1 - Ankush is concerned. The order of conviction and sentence passed by the trial Court is hereby confirmed. Accused No. 1 - Ankush is directed to surrender to his bail before the trial Court within a period of two weeks after the receipt of writ of this Court.

(iii) As regards Accused No. 4-Lahu, the order of conviction for the offence under Section 324 of the IPC is confirmed. However, the sentence awarded by the trial Court is hereby reduced. Instead of rigorous imprisonment for one year with a fine of Rs.300/-, in default to suffer further rigorous imprisonment for one month, his sentence is reduced to the period of imprisonment already undergone by him. The amount of fine is, however, increased to Rs.2000/-, in default to suffer rigorous imprisonment for one year.

(iv) Criminal Appeal No.340 of 1992 is partly allowed. The order of conviction of Accused No.1 - Kisan and Accused No.2 - Ananta for the offence under Section 324 of the IPC is confirmed. However, the sentence of rigorous imprisonment for one year with a fine of Rs.300.00, in default to suffer further rigorous imprisonment for one month imposed on each of them by the trial Court, is reduced to the period of imprisonment already undergone by each of them. The amount of fine is, however, increased from Rs. 300/- to Rs. 2000/-, in default to suffer rigorous imprisonment for one year.

(v) The amount of fine shall be deposited by the concerned accused persons in the trial Court within two weeks.

Certified copy expedited.

Order accordingly.