2011 ALL MR (Cri) 2449
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.P. DAVARE, J.

Ramesh S/O. Tulshiram Mahajan & Ors.Vs.The State Of Maharashtra

Criminal Appeal No. 59 of 2011

15th July, 2011

Petitioner Counsel: Mr. K.C. SANT
Respondent Counsel: Smt. Y.M. KSHISAGAR

Penal Code (1860) S.326 r/w. S.34 - Criminal P.C. (1973), S.374 - Voluntarily causing grievous hurt by dangerous weapon - Conviction and sentence of 7 years R.I. - Appeal against - Prosecution establishing commission of brutal and gruesome crime beyond reasonable doubt - Motive established - No glaring defect in order of Trial Court convicting and sentencing the appellants accused - Hence, held, no interference is warranted in the conviction and sentence imposed by Trial Court - Appeal dismissed. (Para 35)

JUDGMENT

JUDGMENT :- Challenge in this appeal is to the conviction and sentence imposed upon the appellants herein, by way of judgment and order dated 16th April 2010, rendered by the learned Ad hoc Additional Sessions Judge, Amalner, in Sessions Case No. 15 of 2008, thereby convicting them for offence punishable under Section 326 read with Section 34 of Indian Penal Code, for having voluntarily caused grievous hurt by dangerous weapon to victim Arun s/o. Pandharinath Mahajan (PW 1), and sentencing them to suffer rigorous imprisonment for 7 years, each, and to pay fine of Rs. 500/-, each, in default of payment of fine, to suffer rigorous imprisonment for 3 months, each, and also convicting them for the offence punishable under Section 326 read with Section 34 of IPC for having voluntarily caused grievous hurt by dangerous weapon to Sarlabai s/o. Ramesh Mahajan (PW 4), and sentencing them to suffer rigorous imprisonment for 7 years, each, and to pay fine of Rs. 500/-, each, in default of payment of fine, to suffer rigorous imprisonment for 3 months, each, and also directing that both the substantive sentences to run concurrently.

2. The facts and events which gave rise to the present appeal are as follows :

(a) The victim, namely, Arun s/o. Pandharinath Mahajan (PW 1) is resident of Samtanagar, Chopda, and was residing with his parents, wife and children at the relevant time. The accused are his cousins and the house of accused no.1, Ramesh, is situated near the house of Arun (PW 1). The another victim, namely, Sarlabai s/o. Ramesh Mahajan (PW 4) is wife of accused no.1 and was residing with him at the relevant time.

(b) The incident took place on 6-2-2008. It is alleged that prior to two days of the incident, accused no.1 Ramesh suspected fidelity of his wife Sarlabai (PW 4) and had doubted that she had illicit relations with victim no.1, namely, Arun (PW 1). On that count, he threatened said Arun (PW 1) to kill him and Arun (PW 1) tried to convince him, but accused no.1 was not ready to listen. On 6-2-2008, Arun (PW 1) returned back to his house from the field, and took dinner and was sitting near grocery shop of one Sarfaraj Tadavi at about 9.00 p.m., and at that time, accused no.1 came to him and informed that electricity supply was going to start, and hence asked him to come for watering crops. Accordingly, Arun (PW 1) and accused no.1 proceeded towards the field for watering the crops and reached in the field situated near the river and connected the pipes for watering the crops. Thereafter, at about 9.15 p.m., accused nos.2 and 3 arrived in the field suddenly and called Arun (PW 1) and accused no.1 near the Wad tree. At this juncture, accused no.1 made allegations about the illicit relations between Arun (PW 1) and wife of accused no.1. Thereupon, Arun (PW 1) tried to convince him. However, accused no.1 took a wire rope and tied to waist of Arun (PW 1), as well as, tied his both hands. However, Arun (PW 1) somehow got released himself, but accused no.2 Gopal caught hold of his left hand. Accused no.3 Eknath caught hold of his right hand of Arun (PW 1), whereas accused no.1 Ramesh took axe, which was brought by accused no.3 Eknath, and gave blow of axe on the left hand of Arun (PW 1) and amputated the same, as well as, accused no.1 gave blow by axe on the right of Arun (PW 1) and amputated the right hand from his wrist. Thereupon, Arun (PW 1) sustained bleeding injuries and blood started oozing therefrom and he was suffering pains. Thereafter, the accused ran away along with the axe from the said place.

(c) It is alleged that accused persons came to the house of accused no.1 at about 9.30 p.m., and Sarlabai (PW 4) was present at the house. Accused no.1 Ramesh was armed with axe in his hand, and he and accused no.3 abused Sarlabai (PW 4) on account of her illicit relations with Arun (PW 1) and threatened her to kill. Thereafter, accused no.3 Eknath caught both the hands of Sarlabai (PW 4) and accused no.1 gave blows by axe on her hands and thereby amputated her both the hands from the elbow and they were hanging due to the skin. Thereafter, accused ran away from the house. Thereupon, Sarlabai (PW 4) raised shouts, and accordingly, Hirabai Chambhar, Chandu Bari, Bhagabai Mali and others gathered there and Sarlabai (PW 4) informed them about the occurrence of the incident.

(d) It is further alleged that Arun (PW 1) somehow reached at his house in injured condition and informed aforesaid incident to his parents and wife. He also noticed that Sarlabai (PW 4) was in injured condition, who disclosed that the accused had amputated her hands also.

(e) The prosecution case further recites that on 6-2-2008 at about 10.30 p.m., accused no.1 Ramesh went to Police Station along with the axe and stated that he punished his cousin and his wife permanently by amputating their hands. Hence, Police Head Constable, Arjun Sandanshiv (PW 13) sent Police staff to Samtanagar to verify the incident as narrated by accused no.1. Moreover, Arjun Sandanshiv (PW 13) took charge of the axe from accused no.1 and called Panchas, and seized axe and also seized clothes on the person of accused no.1 which were soaked with blood.

(f) The prosecution case also recites that meanwhile, Arun (PW 1) and Sarlabai (PW 4) were shifted to Sub-District Hospital at Chopda for medical treatment. On receipt of information, A.P.I., Gokul Salunke (PW 15) visited the said hospital and found that Arun (PW 1) and Sarlabai (PW 4) were admitted therein in injured condition. Accordingly, A.P.I., Gokul Salunke (PW 15) recorded statement of Arun (PW 1) in the form of complaint Exhibit 20, and also recorded statement of Sarlabai (PW 4) at Exhibit 44, and both the victims narrated the said incident and complained against the accused persons.

(g) Accordingly, complaint was registered against the accused persons under Crime No. 11/2008 for offence punishable under Section 307 read with Section 34 of IPC at City Police Station, Chopda, and A.P.I. Gokul Salunke (PW 15) carried out the investigation of Crime No. 11/2008. During the course of investigation, API Salunke (PW 15) obtained Panchanama as prepared in respect of the seizure of clothes of accused no.1 and the seizure of axe. Moreover, on 7-2-2008, he seized clothes of Arun (PW 1). During the course of interrogation with accused no.1 on 7-2-2008, he made voluntary statement about the discovery of the spot of incident, and accordingly, accused no.1 showed spot of the incident situated in the field, and API Salunke (PW 15) noticed the wooden log and blood stains thereon, and one Nylon rope and two human amputated palms, and pair of shoes, and same were seized under the Panchanama. Thereafter, API Salunke (PW 15) visited the spot of the incident situated at the house of accused no.1, and seized the blood stained soil from the spot of the incident, and seized the husk of wooden log. Moreover, on 7-2-2008, he also seized the clothes of victim Sarlabai (PW 4). Accordingly, accused nos.2 and 3 were arrested on 7-2-2008 and clothes on their person were also seized.

(h) Moreover, API Salunke (PW 15) also recorded statements of witnesses, and also obtained injury certificates of the victims, as well as, collected blood samples of the accused. Moreover, on 29-4-2008, he sent seized articles and blood samples to the office (8) of Chemical Analyser along with forwarding letter Exhibit 53 for examination purpose. Accordingly, C.A. Reports were received which are produced at Exhibits 54 to 60.

3. After completion of investigation, API Salunke (PW 15) filed the charge sheet against the accused before Judicial Magistrate (First Class), Chopda, who in turn, committed the said case to the Court of Sessions, since the offence punishable under Section 307 was exclusively triable by the Court of Sessions. Accordingly, charge was framed against the accused persons by the Court of Sessions on 16-1-2009 under Section 307 read with Section 34, at Exhibit 4, and thereafter, it was altered and reframed, and pleas of the accused persons were recorded. However, accused persons denied the charges levelled against them, and they pleaded not guilty and claimed to be tried.

4. To substantiate the charges levelled against the accused, prosecution examined as many as 16 witnesses as mentioned below :

(1) Arun Mahajan (PW 1) --- Complainant / Injured No.1 i.e. first victim.
(2) Ishwar Mali (PW 2) --- Panch to seizure panchanama of clothes of Sarlabai, Exhibit 22.
(3) Jagadish Shete (PW 3) --- Panch witness to spot panchanama (Turned hostile).
(4) Sarlabai Mahajan (PW 4) --- Wife of accused no.1 and second injured.
(5) Pandharinath Mahajan (PW 5) --- Father of Arun (PW 1).
(6) Hirabai Ahire --- Resident of same vicinity of (PW 6) house of Sarlabai.
(7) Chandrakant Bari (PW 7) --- Resident of same vicinity.
(8) Hasinabi Momin (PW 8) --- Resident of same vicinity.
(9) Ravindra Mali (PW 9) --- Panch to recovery panchanama (Turned hostile).
(10) Pramod Shete (PW 10) --- Panch to spot pancha- nama (Turned hostile).
(11) Chandrakant Barela (PW 11) --- Medical Officer.
(12) Jankiram Pardhi (PW 12) --- Head Constable / carrier.
(13) Arjun Sandanshiv (PW 13) --- Head Constable / Who was present at Police Station when accused no.1 came with axe and who seized the axe.
(14) Manoj Jadhav (PW 14) --- Panch witness (Turned hostile).
(15) API, Gokul Salunke (PW 15). --- Investigating Officer.
(16) Dr. Muktanand Nukte (PW 16) --- Medical Officer, Civil Hospital, Jalgaon, who examined the patients.

5. The defence of the accused is of total denial. They neither examined themselves on oath, nor examined any defence witness, whereas they denied the incriminating evidence against them in their statement under Section 313 of the Code of Criminal Procedure, 1973, and claimed to be innocent.

6. After considering oral, documentary and medical evidence on record, learned trial court convicted and sentenced the accused persons for the offence punishable under Section 326 read with Section 34 of IPC for having voluntarily caused grievous hurt by dangerous weapon to Arun (PW 1), as well as, convicted and sentenced for the offence punishable under Section 326 read with Section 34 of IPC for having voluntarily caused grievous hurt by dangerous weapon to Sarlabai (PW 4), and also directed that both the sentences to run concurrently, whereas said accused nos.1 to 3 were acquitted for the offence punishable under Section 307 read with Section 34 of IPC.

7. Being aggrieved and dissatisfied by the said judgment and order of conviction and sentence, accused persons i.e. appellants herein have preferred the present appeal challenging the same and prayed for quashment thereof.

8. Before adverting to the submissions advanced by the learned Counsel for the parties, it is necessary and useful to scrutinize the material evidence adduced and produced by the prosecution, in respect of charges levelled against the accused persons, and in the said context, coming to the testimony of Arun s/o. Pandharinath Mahajan (PW 1), who has stated that he knows accused no.1 Ramesh, who is his cousin; accused no.2 Gopal and accused no.3 Eknath are brothers of accused no.1, and therefore, they are also his cousins and they were having landed property situated near his landed property, and house of accused no.1 Ramesh also was situated near his house, as well as, accused nos. 2 and 3 were also residing near his house. He has also stated that name of wife of accused no.1 is Sarlabai, and therefore, she is her cousin sister-in-law. As regards the incident, he has stated that it took place about 2 years back and it was 6th day of the month, and during relevant period, accused no.1 Ramesh was suspecting that there was illicit relations between himself and Sarlabai and on that count, accused no.1 used to threaten him to kill. Thereupon, he tried to give understanding and convince accused no.1.

9. As regards the incident, Arun (PW 1) also stated that on the relevant day of incident, he was present in his field since morning till 6 p.m., and thereafter, returned back to his house and took meals and thereafter, went near shop of Sartaj Tadavi at Chopda, which was closed and sat on Ota. At that time, accused no.1 came near to him and informed him that electricity was to start early, and therefore, accused no.1 asked him to come to field for watering the crop of wheat. Thereupon Arun (PW 1) and accused no.1 Ramesh went to the field of accused no.1 and connected pipes for watering the crop. At this juncture, accused nos.2 and 3 also came in the field of accused no.1. It was about 9 to 9.30 p.m., accused nos.2 and 3 called Arun (PW 1) and accused no.1 below the Vad tree. Accused no.1 stated Arun (PW 1), that he was having illicit relations with his wife. On that count, Arun (PW 1) countered the same and stated to accused no. 1, that she was like his mother and he would not do such act. Thereupon, accused no.1 tied rope to the waist of Arun (PW 1) and accused nos.2 and 3 tied his both the hands to his body with the rope, but somehow he got released his hands and started running, but accused nos.1 to 3 caught hold of him. Accused no. 2 Gopal caught hold his left hand, whereas accused no.3 Eknath gave axe to accused no.1 Ramesh, and accused no.3 Eknath caught hold of his right hand. He has further stated that, thereupon, accused no.1 Ramesh gave a blow by axe on his left hand by putting his hand on the wood, and due to the said blow given by accused no.1 by axe, his left hand was amputated from the palm (Panja), and blood started oozing therefrom. Moreover, accused no.3 Eknath caught hold his right hand, placed the same on the wood and accused no.1 Ramesh gave blow by axe on his right hand, and thereby his right hand was amputated from the palm i.e. Panja and blood started oozing therefrom. After giving the said blows on the hands of victim Arun (PW 1), accused nos. 1 to 3 ran away with the axe and rope. Arun (PW 1) has also stated that for some time he stayed there and thereafter, he returned back to his house.

10. Arun (PW 1) has also stated that while coming to his house, he noticed that Sarlabai (PW 4) was lying in soil and found that both the palms of her hands were amputated. His father was also present near his house and thereafter, Police personnel came and made inquiry with him and he narrated about the incident to his father. Thereafter, Arun (PW 1) has stated that he and Sarlabai (PW 4) were taken to Government Hospital at Chopda for medical treatment. Police personnel made inquiry with him about the incident and he narrated the incident to him which was reduced into writing in the form of complaint and since both the palms were amputated, he put his left leg thumb impression mark on the said complaint which is marked as Exhibit 20. Arun (PW 1) identified the axe i.e. Article No.1; Nylon rope, Article No.6; handkerchief, Article No.20; muffler, Article No.19; shirt, Article No.2; pair of shoes, Article No.7, and wooden log, Article No.4. He has further stated that he was admitted in Chopda Hospital for 2 to 3 hours and thereafter he was shifted to Civil Hospital, Jalgaon, and was admitted there for 26 to 27 days and was provided medical treatment.

11. During the cross examination, Arun (PW 1) has stated that it did not happen that prior to 2 to 3 days of the incident, accused no.1 was suspecting about the illicit relations between himself and his wife and used to threaten him to kill, and further stated, that he has not stated the contents of portion mark "A" from the complaint Exhibit 20, as well as, not stated contents of portion mark "B" from the complaint amounting to contradiction. He has further stated that he did not ask accused no.1 to kill him when he gave blows on his hands and amputated them. Moreover, omissions in the complaint and improvement in the testimony were brought on record in the cross examination in respect of the fact that accused no.1 asked Arun (PW 1) to come to his field for watering the crops and Arun (PW 1) stated also to accused no.1, that his wife was like his mother, and accused nos. 2 and 3 tied his hands to his body with the rope, and also stated that he started running but accused nos.1 to 3 caught hold of him, and accused no.3 gave axe to accused no.1 Ramesh, and accused no.1 Ramesh gave blow by axe on his right and left hands by putting his hand on the wood.

12. That takes me to the testimony of PW 4, another victim, namely, Sarlabai, who has deposed that she knows the complainant Arun (PW 1), who is cousin of her husband i.e. accused no.1 Ramesh and he was residing just in front of her house at the relevant time. She has also stated that the incident took place on 6-2-2008, and prior to the incident, accused no.1 used to raise quarrel with her on the allegations of her illicit relations with Arun (PW 1). She has also stated that on the relevant day of incident, she was present at his house and at about 9 to 9.30 p.m., accused nos.1 to 3 came to the house and gave knock on the door, and therefore, she opened the same and she noticed that their clothes were soaked with blood. Accused nos.1 to 3 entered inside the house and started saying to her, that she had illicit relations with Arun (PW 1) and threatened her that they would kill her. Accordingly, accused nos.2 and 3 caught hold of her both hands and accused no.1 was armed with axe. Thereafter, accused nos.2 and 3 fall down Sarlabai (PW 4) on the soil and accused no.1 took out the axe and gave blow of axe on her left hand, and thereupon, she started shouting, as well as, accused no.1 gave blow of axe on her right hand and due to the said blows of axe given by accused no.1, both her hands were amputated and only skin was entangled and blood started oozing therefrom. At this time, her sons were also raising shouts but accused nos.1 to 3 took away them by gagging their mouth and thereafter ran away. She has further stated that she came out of the house while raising shouts and came to courtyard, and on hearing her shouts, nearby persons, namely, Hirabai Chambhar, Bhagabai Pandit and Chandubai came near her. Someone informed the said incident to the Police personnel. By this time, Arun (PW 1) also came there near his house and she noticed that his both hands were also amputated. Thereafter, nearby persons removed her, as well as, Arun (PW 1) to Chopda Hospital by autorickshaw for medical treatment. Thereafter, Police personnel came at the hospital and she narrated the occurrence of incident to Police and it was reduced in writing. She has also identified Article No.1 axe and Article Nos. 16, 17 and 18 i.e. saree, petticot and blouse, respectively. She has further stated that thereafter she was shifted to Civil Hospital, Jalgaon, and was admitted there for about one month for medical treatment. Accordingly, she has stated that her both the hands were amputated during the incident.

13. In the cross examination, Sarlabai (PW 4) has stated that her marriage with accused no.1 was second marriage, and there was divorce in between herself and her first husband, but both the sons are in her custody. She was married with accused no.1 about 9 years back, and two sons were begotten out of the said wedlock, namely, Rohit and Atul. She has also stated that the landed property of accused no.1 and Arun (PW 1) are situated at a distance of 6 to 7 kms. from their house. She has also stated that since prior to 3 - 4 days of incident, accused no.1 was alleging about her illicit relations with Arun (PW 1) and during the said period, he stated to her about illicit relations with Arun (PW 1) for 3 - 4 times. She has further stated that she did not inform about the suspicion raised by accused no.1 Ramesh to father of Arun (PW 1). She has also stated that she asked accused no.1, why he was suspecting about illicit relations with Arun (PW 1). However, on that count, accused no.1 did not give any reply, but witness volunteered that he started assaulting her.

14. Moreover, omissions in the statement of Sarlabai (PW 4) and improvements in her testimony were brought in the cross examination, in respect of the fact that accused nos.1 to 3 again went to the field on 6-2-2008 at about 6 p.m., that she noticed the clothes of accused nos.1 to 3 were soaked with blood when she opened the door, and also, about the fact that accused no.2 stated to her about the illicit relations with Arun (PW 1) and threatened her to kill, and also regarding the fact that accused no.2 Gopal caught hold of her hands, as well as, in respect of the fact that accused nos.2 and 3 fall down her on the soil, and also, regarding the fact that the accused ran away from the spot and took away the sons along with them.

15. Moreover, Sarlabai (PW 4) has also deposed in her cross examination, that it did not happen that at the relevant time of the incident when accused nos.1 to 3 came to her house, accused no.2 Gopal stayed outside the house, amounting to contradiction. She has further stated that when the accused threatened her to kill, she raised shouts and thereupon her sons were awaken from the sleep and Police made inquiry with them. She has categorically stated that accused no.3 Eknath gave blow of axe on her right hand and amputated it, and incident continued for 20 to 25 minutes. She has admitted that at the relevant time of the incident, even on her shouting, persons residing near her house did not gather. Accordingly, she has stated that accused nos.2 and 3 caught hold of her hands and accused no.1 Ramesh gave blows of axe on both the hands and amputated her both the hands.

16. Turning to the deposition of Dr. Chandrakant Barela (PW 11), wherein he has stated that he was attached to Cottage Hospital, Chopda, as a Medical Officer, and on 6-2-2008, he was present in the hospital on duty and at about 12 O'Clock in the midnight, two persons were brought at the hospital by City Police Station, Chopda, for medical treatment, whose names were Sarlabai (PW 4) and Arun (PW 1), When Sarlabai was brought to the hospital, he noticed that her both hands were amputated and hence, he provided primary medical treatment to her. He has stated that blood was oozing from injuries and he provided life saving treatment to her and informed about serious condition of Sarlabai to Police and advised them to shift her to Civil Hospital at Jalgaon. He has also stated that Police personnel recorded statement of Sarlabai (PW 4) at the hospital. He has further stated that on 6-2-2008, Arun (PW 1) was also brought to the hospital and his both hands were amputated, and blood was oozing therefrom, and hence, he provided primary medical treatment to him and advised him to shift to Civil Hospital at Jalgaon. Police recorded statement of Arun (PW 1) in the form of complaint. He has further stated that both the victims, namely, Arun (PW 1) and Sarlabai (PW 4) gave the history of amputation of their respective hands by means of axe. Accordingly, he reduced the said history in writing in the case papers of Arun (PW 1), which is marked as Exhibit 35, and case papers Sarlabai (PW 4), which is marked as Exhibit 34. He has further stated that both the said victims sustained grievous injuries and and death can be possible due to the said injuries, and on examination, he opined that injuries can be possible by sharp weapon and the amputation of hands, as noticed on the person of Arun (PW 1) and Sarlabai (PW 4) can be possible due to axe i.e. Article No.1.

17. In the cross examination, Dr. Chandrakant Barela (PW 11) has admitted that he has not obtained signatures or thumb impressions of Arun (PW 1) and Sarlabai (PW 4) on case papers, as well as, he has admitted that he has not mentioned about identification marks on the persons of Arun (PW 1) and Sarlabai (PW 4), as well as, he has not issued injury certificate in respect of the examination of Arun (PW 1) and Sarlabai (PW 4), as well as, he has admitted that he has not mentioned age of injuries as appeared on the person of Arun (PW 1) and Sarlabai (PW 4) in the case papers. However, he volunteered that he mentioned the age of injury in the injury certificate, and also admitted that issuance of injury certificate was on the basis of case papers. He has further stated that the in case of amputation of hands, as appeared in respect of Arun (PW 1) and Sarlabai (PW 4), there can be massive bleeding and in case the massive bleeding is ot stopped, there is possibility of the patient going to shock and cause death. Moreover, he has stated that when Arun (PW 1) was brought to the hospital, handkerchief and muffler were tied on his hands. A suggestion was given to him, that he deposed falsely without examining victims, namely, Arun (PW 1) and Sarlabai (PW 4), but the same was denied by him. As regards nature of injuries sustained by victims, suggestion was given that said injuries were not grievous in nature, but the same was denied by him.

18. That takes me to the testimony of Dr. Muktanand Nukte (PW 16), who has stated that he was attached to Civil Hospital, Jalgaon, as a Medical Officer, at the relevant time and on 7-2-2008, he was present on duty and patients, namely, Sarla Ramesh Mahajan and Arun Pandharinath Mahajan were referred to the said hospital from R.H. Chopda for further management. Accordingly, their case papers were also produced in the said hospital and he took necessary entries in the case papers of both the said victims. He has stated that accordingly, he examined both the victims and on examination of Arun (PW 1), he noticed amputation of both hands middle third of fore arms and fracture of radius ulna. The X-ray examination in respect of Arun (PW 1) was carried out. He has further stated that Arun (PW 1) was admitted in the hospital on 6-2-2008 and was discharged on 1-3-2008, and accordingly, on 26-3-2008, he issued a letter to Medical Officer of R.H. Chopda, in respect of medical examination of said witness Arun and the injuries as noticed on his person, and the said letter is produced at Exhibit 71. He has categorically stated that injuries noticed on the person of Arun (PW 1) are of grievous nature and due to such injuries, like the injuries as noticed on the person of witness Arun, person may die, and the injuries on the person of Arun (PW 1) were caused by sharp object. He has further stated that he examined Sarlabai (PW 4) also, and on examination, he noticed compound fracture of radius and ulna bilateral, and it was total amputation, and the injury was fresh. He has further stated that the nature of injury was grievous, and the injury was caused by sharp object. Accordingly, he issued certificate in respect of injuries, as noticed on the person of Sarlabai (PW 4), and issued certificate dated 5-5-2008 to that effect, which is produced at Exhibit 72. He has further stated that Sarlabai (PW 4) was admitted in hospital on 7-2-2008 and was discharged on 1-3-2008, as well as, he has stated that the injuries noticed on the person of Sarlabai (PW 4) may cause death. He has further stated that injuries noticed on the persons of Arun (PW 1) and Sarlabai (PW 4) can be caused by axe i.e. Article No.1.

19. In the cross examination, he has admitted that he has not issued the injury certificate in respect of victim Arun, and cannot tell the age of injuries as noticed on his person, as well as, he has stated that he cannot tell age of injures which are noticed on the person of Sarlabai (PW 4), in the hours. As regards the amputation of both the hands of Arun (PW 1) and Sarlabai (PW 4), he has stated that there would be severe bleeding and, in case, immediate medical treatment is not provided, the patient may go to the shock and there is possibility of his death. He has further stated that due to the injuries, like sustained by Arun (PW 1) and Sarlabai (PW 4), in case patient becomes unconscious, he cannot regain consciousness unless medical treatment is provided to him.

20. Coming to the deposition of Pandharinath Mahajan (PW 5) i.e. father of victim Arun (PW 1), who has stated that he knew the accused persons who are is nephews and house of accused no.1 Ramesh was situated in front of his house, whereas accused nos.2 and 3 were residing separately. He has stated that the incident took place on 6th day of the month and he was present at his house on the said date, and at about 9 p.m., on that day, he, his wife and his daughter-in-law were present in the house. At the relevant time, accused no.1 Ramesh came to their house and asked, where was Arun (PW 1), and thereupon he informed that he had gone to village, and thereafter accused no.1 went to the village for the search of Arun (PW 1). He has also stated that at about 11 p.m. on the said date, Sarlabai (PW 4) raised shouts on the road saying that her husband and brothers-inlaw have amputated her hands, and therefore, Pandharinath (PW 5) opened door of the house and came on the Ota of the house and noticed that Sarlabai (PW 4) was raising shouts loudly, and her both the hands were entangled by skin and blood was oozing, and she was saying that her husband and brothers-in-law have amputated her hands. He also noticed that Sarlabai (PW 4) proceeded towards the house of Hirabai (PW 6). Thereafter, Arun (PW 1) came from the field and he noticed that the handkerchief was covered on his hands and blood was oozing from his hands. He has further stated that his son Arun asked for the poison saying that there is no use of his aliveness. Thereupon, Pandharinath (PW 5) made inquiry with him and Arun (PW 1) informed that accused nos.1 to 3 tied him by by placing his hands on the wood and they amputated his hands by axe. Thereafter, Police personnel came and took victims Arun and Sarlabai to the hospital.

21. During cross examination, Pandharinath (PW 5) has stated that prior to the incident, there was no dispute between Arun (PW 1) and accused no.1 Ramesh. Moreover, omission in the Police statement and improvements were taken out in respect of the fact that accused no.1 went to the village to search Arun (PW 1). He has also stated that when Arun (PW 1) came to the house, handkerchief and muffler were tied on his hands. Besides that, suggestion was given to him, that he was deposing falsely that on the relevant day, accused no.1 came to his house to call witness Arun, but the same was denied by him.

22. On the aforesaid background, learned Counsel for the appellant, Mr. K.C. Sant, canvassed that the theory put forth by the victims i.e. Arun (PW 1) and Sarlabai (PW 4), in respect of amputation of their hands by accused nos.1 to 3 is false and concocted. It is further submitted that the entire depositions of Arun (PW 1) and Sarlabai (PW 4) are full of omissions and contradictions. It is further submitted that the very conduct of the said witnesses, and more particularly, Arun (PW 1), appears to be unnatural since there is nothing on record to show that he shouted and called nearby persons for help. It is also argued that Pandharinath (PW 5), father of victim Arun, has stated in his deposition that Arun came to his house, his hands were tied with handkerchief and muffler, and hence, on the way, someone must have met victim Arun and must have died handkerchief and muffler on his hands, but the testimony of Arun (PW 1) is silent in that respect, which creates suspicion about his deposition, that he is not telling entire truth before the court. Moreover, according to the learned Counsel for the appellant, although it has come in evidence that Arun (PW 1) was called by accused no. 1 from nearby Panwala, but said Panwala has not been examined by the prosecution which could have thrown much light on the testimony of Arun (PW 1). It is further canvassed that although Pandharinath (PW 5) has stated that she heard shouts of Sarlabai on the relevant day at about 11 p.m., Hirabai (PW 6), Chandrakant (PW 7) and Hasinabi (PW 8), who are nearby residents, have stated that they heard the noise of weeping of one lady / Sarlabai and there is discrepancy in the testimony of said witnesses in that respect. It is further submitted by the learned Counsel for the appellant that although minor sons of Sarlabai were present in the house at the time of occurrence of the incident, they have not been examined by the prosecution and the said lacuna hampers the case of the prosecution. Besides, it is submitted that not a single Panchanama has been proved through Panch witnesses, which also diminishes credibility of the prosecution case. Moreover, it is asserted by the learned Counsel for the appellant, that the prosecution has miserably failed to prove the motive for committing alleged assault by the accused persons upon victims i.e. Arun (PW 1) and Sarlabai (PW 4) and it has not come on record by cogent and reliable evidence that there were illicit relations between Arun (PW 1) and Sarlabai (PW 4), and hence, same cannot be construed as motive for the alleged crimes.

23. Alternatively, learned Counsel for the appellants submitted that the appellant no.1 is of 38 years old, appellant no. 2 is of 42 years old, and appellant no.3 is of 27 years old, and they are having respective families, and accused no.1 Ramesh has got two children, and therefore, leniency be shown and sentence awarded to them be reduced, in the event of confirming their convictions.

24. Learned APP Smt. Y.M. Kshirsagar, for the respondent, countered the said arguments vehemently and submitted that the depositions of complainant Arun (PW 1) and Sarlabai (PW 4) i.e. victims are themselves sufficient to prove guilt of the accused persons. Moreover, it is canvassed that Dr. Barela (PW 11), as well as, Dr. Nukte (PW 16) have supported the injuries sustained by both the victims. It is also submitted that both the hands of Arun (PW 1) were amputated from wrist, as well as, both the hands of Sarlabai were amputated from elbow, which brutal and gruesome crime committed by the accused persons which has been proved by the prosecution beyond any reasonable doubt through the very testimony of both the said witnesses and their evidence is corroborated by the testimonies of Dr. Barela (PW 11) and Dr. Nukte (PW 16) and injury certificates produced on record at Exhibits 71 and 72, and therefore, learned APP submitted that the conviction and sentence inflicted upon the appellants by the learned trial court is proper and appropriate, and no interference is warranted in the appellate jurisdiction.

25. As regards the arguments by the learned Counsel for the appellants, that Pandharinath (PW 5) stated that Sarlabai (PW 4) raised shouts, whereas Hirabai (PW 6), Chandrakant (PW 7) and Hasinabi (PW 8) stated that she was weeping, learned APP submitted that those are minor discrepancies and what is material is, that assault by axe by accused nos.1 to 3 upon both the victims with premeditation, and the same has been proved by the prosecution, and therefore, such minor discrepancies will not diminish the credibility of the prosecution case when there is legal and incriminating evidence against the accused persons.

26. As regards the motive, learned APP submitted that it has come through the evidence of Arun (PW 1) and Sarlabai (PW 4) i.e. victims, that even prior to the occurrence of incident, accused Ramesh has stated to the said victims that he suspected about the illicit relations between them and accused no.1 suspected about fidelity of his wife i.e. Sarlabai (PW 4), and the prosecution has brought the said motive on record, and hence, there is no substance in the arguments canvassed by the learned Counsel for the appellants in that respect. As regards the other arguments canvassed by the learned Counsel for the appellants, that two minor sons of Sarlabai (PW 4) were not examined although they were present in the house, learned APP submitted that both the victims themselves came before the court and stated that how the accused persons amputated their hands by giving axe blows and in what mode and manner they committed the said grave offence, and therefore, there was direct evidence in respect of the crime, and there was no necessity to examine the children of Sarlabai (PW 4), and it cannot be construed as deficiency in the prosecution case.

27. Moreover, it is submitted that the evidence of Dr. Barella (PW 11) and case papers Exhibit 35 and Exhibit 34, respectively, as well as, the evidence of Dr. Nukte (PW 16) and the injury certificates produced at Exhibits 71 and 72 support case of the prosecution and it has come in evidence that both the victims were hospitalised for more than 21 days and sustained grievous injuries at the hands of accused nos.1 to 3, in furtherance of their common intention, which were caused by deadly weapon i.e. axe, and the prosecution has proved the charge levelled against the appellants under Section 326 of IPC beyond reasonable doubt, and hence, learned APP submitted that the learned trial court rightly convicted and sentenced the appellants. Accordingly, learned APP supported the impugned judgment and order dated 16th April 2010, and canvassed that no interference therein is warranted in the present appeal, and urged that the present appeal deserves to be dismissed.

28. I have perused the ocular, documentary, as well as, medical evidence adduced and produced by the prosecution, as well as, perused the impugned judgment dated 16th April 2010, and Record & Proceedings, and also considered the submissions advanced by the learned Counsel for parties anxiously, and there is no dispute that the testimony of complainant Arun (PW 1) and Sarlabai (PW 4) i.e. victims is a direct evidence in respect of the charge proved and established against the accused under Section 326 of IPC, and they categorically stated in their respective depositions that how accused nos.1 to 3 assaulted them by giving blows of axe and in what mode and manner amputated their hands i.e. both the hands of Arun (PW 1) from wrist and both the hands of Sarlabai (PW 4) from elbow in gruesome and brutal manner. Moreover, Arun (PW 1) and Sarlabai (PW 4) have categorically attributed specific role to each of the accused i.e. Ramesh, Gopal and Eknath in the assault upon each of the victim i.e. Arun (PW 1) and Sarlabai (PW 4), such as, accused nos.1 to 3 caught hold of Arun (PW 4) when he tried to ran away and accused no.2 Gopal caught hold his left hand, accused no.3 Eknath gave the axe to accused no.1 Ramesh, and accused no.3 Eknath caught hold his right hand, and thereafter, accused no.1 Ramesh gave a blow by axe on his left hand by putting his hand on the wood, and due to the axe blow given by accused no.1, his left hand was amputated from palm (Panja) and blood started oozing, and Arun (PW 1) further stated that accused no.3 Eknath caught hold his right hand and placed the same on the wood and accused no.1 Ramesh gave the blow by axe on his right hand, and thereby his right hand was amputated and blood started oozing therefrom, and the said testimony of Arun (PW 1) has not been shaken in the cross examination, and therefore, same is required to be accepted and believed.

29. As regards the assault upon Sarlabai (PW 4), she has also assigned specific role to each of the accused i.e. accused nos. 1 to 3 in the occurrence of incident and stated that at about 9 to 9.30 p.m., accused nos.1 to 3 came to her house and knocked the door, and thereupon she opened door of the house, and she further noticed that their clothes were soaked with blood, and accused nos.1 to 3 entered inside the house. She has further stated that thereafter, accused nos.1 to 3 started saying about her illicit relations with Arun (PW 1) and threatened her to kill. Accused nos.2 and 3 caught hold of her both hands, whereas accused no.1 Ramesh was armed with axe and accused nos.2 and 3 fell her down on the soil and accused no.1 Ramesh took out the axe and gave blow thereof on her left hand and blood started oozing therefrom, and thereafter, he gave blow of axe on her right hand and blood started oozing therefrom, and due to blows of axe given by accused no.1 on her hands, her both hands were amputated and only skin was entangled and the said very testimony of Sarlabai (PW 4) also has not been diminished in the cross examination, and therefore, same is also required to be accepted and believed.

30. As regards the motive, it has come in the testimony of Arun (PW 1) and Sarlabai (PW 4), that prior to the incident, accused no.1 Ramesh expressed before the said witnesses, that Arun (PW 1) and Sarlabai (PW 4) were having illicit relations and he suspected about the same and fidelity of his wife Sarlabai (PW 4), and on that count, he threatened both the said victims to kill then, and the denying assertions made by Arun (PW 1) and Sarlabai (PW 4) in that respect also have not been shattered in their respective cross examinations, and therefore, the said aspect is also required to be accepted and consequently, required to be believed, and hence, it is required to be held that the prosecution has proved and established the motive for the assault by the accused persons, on victims Arun (PW 1) and Sarlabai (PW 4), by axe, on the relevant day i.e. 6-2-2008.

31. True it is, that there are few omissions and contradictions in the testimony of Arun (PW 1) and Sarlabai (PW 4), but the same are minor discrepancies and do not go to the root of the matter or discredit their testimonies, and hence, the said omissions / contradictions would not render the testimony of Arun (PW 1) and Sarlabai (PW 4) as untrustworthy testimony to base the conviction against the accused persons since both the said victims have categorically narrated the occurrence of incident and described participation of each of the accused in the occurrence of the incident, in furtherance of their common intention, as well as, they have identified the very deadly weapon i.e. axe which was used by the accused persons during the occurrence of incident, while amputating their respective hands, as mentioned herein above, and hence, their testimonies are required to be construed as truthful and trustworthy testimonies and conviction based upon said testimonies and the said evidence is cogent and incriminating against the appellants and hence, conviction based upon such testimonies against the appellants cannot be faulted with.

32. Pertinently, the medical evidence i.e. the testimonies of Dr. Barela (PW 11) and Dr. Nukte (PW 16) have also supported the testimonies of Arun (PW 1) and Sarlabai (PW 4) in respect of the injuries sustained by them and produced their case papers i.e. Exhibit 35 and Exhibit 34, respectively, containing the history, and categorically stated that Arun (PW 1) was admitted in hospital on 6-2-2008 and was discharged from the hospital on 1-3-2008, whereas Sarlabai (PW 4) was admitted in hospital on 7-2-2008 and was discharged on 1-3-2008, and accordingly both the said victims were hospitalised for more than 21 days, and both the said victims sustained grievous injuries which were caused by sharp object i.e. dangerous / deadly weapon, and further stated, that such injuries, as noticed on the persons of both the said victims, can be caused by axe i.e. Article No.1, and accordingly, issued the injury certificates Exhibits 71 and 72 and proved the contents thereof, and therefore, considering the said medical evidence also, there cannot be any dispute that both the said victims i.e. Arun (PW 1) and Sarlabai (PW 4) sustained grievous hurts by way of deadly weapon, and the said medical evidence also corroborates the testimony of Arun (PW 1) and Sarlabai (PW 4), in respect of the injuries sustained by them, and also amounts the incriminating evidence against the accused persons.

33. As regards the scientific evidence of Chemical Analyser, there is no dispute that the Muddemal property, as well as, blood samples of victim Arun (PW 1), as well as, blood samples of victim Sarlabai (PW 4) were sent to the Chemical Analyser's office for examination purpose along with forwarding letter dated 29-4-2008, Exhibit 53, and C.A. report dated 17-1-2009, Exhibit 55, discloses that the blood group of victim Sarlabai is "O", whereas C.A. report Exhibit 56 reflects that the blood group of victim Arun is "B". Moreover, C.A. report dated 19-1-2009, Exhibit 60, discloses that the blood sample of accused no.1 Ramesh was sent to the Chemical Analyser's office and blood group of accused no.1 Ramesh is "B", whereas C.A. report Exhibit 57 discloses that the blood sample of accused no.3 Eknath was sent to Chemical Analyser's office for examination purpose and his blood group is "B". Pertinently, the C.A. report dated 16-1-2009 Exhibit 54 discloses that the clothes of accused no.1 Ramesh bore the blood stains of blood group "B" i.e. blood group of victim Arun (PW 1), and since it is not case of the accused that they sustained any injury, and therefore, it can be safely concluded that the blood stains on the clothes of accused no.1 Ramesh were of the blood belonging to Arun (PW 1). Moreover, axe also bore human blood stains of blood group "B" i.e. blood group of victim Arun, as well as, the muffler and handkerchief also bore the human blood stains of blood group "B" i.e. blood group of victim Arun, and also Nylon rope, wooden pieces and wooden log bore the human blood stains of blood group "B" i.e. blood group of victim Arun. Moreover, articles, namely, saree, petticoat and blouse of victim Sarlabai also bore the human blood stains of blood group "O" i.e. blood group of victim Sarlabai. Accordingly, the corroborative pieces of evidence of aforesaid C.A. reports are also in consonance of the prosecution case and strengthens the prosecution case and accordingly, connects the appellant nos.1 to 3 herein with the guilt.

34. Moreover, after scrutinizing the oral evidence adduced by the prosecution and, more particularly, evidence of Arun (PW 1) and Sarlabai (PW 4), it is amply clear that the accused nos.1 to 3 took away the victim Arun towards field from his house, on the pretext of watering the crops, during night time on the relevant day, and accused nos.2 and 3 arrived there suddenly. Accused no. 3 Eknath gave the axe to accused no.1 and there they asked victim Arun about his illicit relations with Sarlabai (PW 4) and consequently, amputated his both the hands from palms by giving blow of axe by accused no.1 Ramesh with the active aid and assistance of accused nos.2 and 3, and thereafter ran away, as recited herein above, gathers the very intention and premeditation of appellant nos.1 to 3 in committing the said crime. Moreover, thereafter, accused nos.1 to 3, within a span of 15 minutes to half an hour i.e. at about 9 to 9.30 p.m., on the relevant day, reached the house of accused no.1 Ramesh, and their clothes were soaked with blood stains at the said time. Accused no.1 asked his wife Sarlabai about her illicit relations with Arun (PW 1) and they further threatened her to kill. Thereafter, accused nos.2 and 3 caught hold of her both the hands and accused no.1 was armed with axe and accused nos.2 and 3 made her to fall down on the soil and accused no.1 Ramesh gave the blow of axe on her left hand, as well as, on the right hand, and thereby amputated her both the hands from elbow, and blood started oozing therefrom. Thereupon, she raised shouts and when her son raised shouts, accused nos.1 to 3 gagged their mouth, and the said acts of accused nos.1 to 3 categorically reflect the very intention and premeditation while committing the crime.

35. Having survey of the totality of the evidence, it is amply clear that the appellant nos.1 to 3 committed brutal and gruesome crime, and even after amputation of both the hands of Arun (PW 1), as well as, Sarlabai (PW 4), by giving blows of axe, the appellant no.1 Ramesh had the courage to go to the Police Station along with the blood stained axe, and therefore, learned trial court has rightly convicted and sentenced the appellants, and there is no glaring defect therein, and therefore, I am not inclined to accept the submissions advanced by the learned Counsel for the appellants. Hence, no interference is warranted in the conviction and sentence imposed by the learned trial court upon appellant nos.1 to 3 herein, and therefore, present appeal deserves to be dismissed by confirming the conviction and sentence imposed upon the appellants.

36. In the result, present appeal stands dismissed, and the conviction and sentence imposed upon the appellant nos.1 to 3 herein, by way of judgment and order dated 16th April 2010, rendered by the Ad hoc Additional Sessions Judge, Amalner, in Sessions Case No. 15 of 2008, stands confirmed and maintained.

Appeal dismissed.