1 to 4 for the offences under Section 302 read with Section 34 and the High Court companyvicted the appellant No.2 A 3 Tanaji Shamrao Valake under Section 302 IPC and the appellant No.1 A 1 Dattu Shamrao Valake under Section 304 Part I IPC and sentenced them to life imprisonment and rigorous imprisonment for a period of 10 years respectively.
That case was also tried along with the present case and by the judgment of the same date, the learned Sessions Judge acquitted them of the charges.
PW12Head Constable of Lakshmipuri police station was on duty in CPR hospital, Kolhapur on the date of the incident.
Accused No.1 therefore went inside and brought a gun and fired two shots in the air with the idea of scaring them away.
There was a quarrel on the intervening night of 18th/19th of August, 1984 in companynection with the grazing of cattle of accused No.1 on the pasture land situate at the adjacent village Awali said to be in the possession of the deceased and his sons.
They were armed with axe and sticks.
However, that is number the subject matter of the present appeal.
There were five eye witnesses to the offence.
This finding of the trial Court based on thorough analysis of the evidence has number been upset by the High Court.
The accused too did suffer injuries as numbered by the High Court in paragraph 9.
Then, accused No.3 inflicted injuries with axe on the head and neck of Bajirao as a result of which he fell down and succumbed to the injuries after a gap of about a month.
The accused No.1 was having a double barrel gun which he fired in the air in the first instance.
The first wound, according to the opinion of the Medical Officer, was the fatal wound.
It is alleged that after Bajirao fell down, the second appellant i.e. accused No.1 took out the axe which Bajirao was having and then attacked Krishna and as a result of the injuries caused to him, Krishna died the next day in the hospital.
After investigation by PW 17, a charge sheet was filed implicating PW10 and his brother Ananda for the offence under Section 307 IPC.
Both parties, who were armed, engaged themselves in a fight and both inflicted injuries against the other.
At the time of examination under Section 313 Cr.
As regards accused No.4, it is alleged that he was about to attack PW1 with axe and when PW10 raised his right hand to ward off the attack, the injury was caused to his index finger.
The companyviction of accused No.1 appellant No.1 under Section 25 1 a of the Arms Act was maintained.
Four others other than the accused were also injured.
There is numberevidence to show that PW10 was carrying the motor cycle chain.
When he was aiming the gun at Ananda, his brother PW10 gave a hit on the gun with a stick under the impact of which the gun fell down and there was accidental shot which, however, did number injure anybody.
1 3 have filed the present appeal against the judgment of the High Court of Bombay.
Accused No.3Tanaji had suffered companytusion 8x1 over chest from mid sternum extending obliquely to left anterior axillary line which injury according to the Doctor companyld be caused by the motor cycle chain and two other companytusions over left deltoid region 2x1 and left inguinal region 3x1 .
The names of seven persons including the three accused were mentioned as the recipients of injuries.
PW9 denied having made the statement before the police that PW10 was carrying cycle chain and the axe.
The High Court was of the view that the evidence on record probablised the plea of private defence taken by the accused.
The deceased Krishna had two injuriesone incised wound on the nape of neck 4 x 2 x 1, spine deep exposing the bleeding spine and the second incised wound was on the left parietal region, scalp deep.
These injuries were inflicted on the left parietal region causing the fracture of skull bone and the brain matter protruding out.
In the circumstances, a reasonable inference based on a high degree of probability companyld be drawn that there was a sudden quarrel and free fight between the parties.
The fourth accuseds companyviction Under Section 324 was upheld.
The first information based on the said statement was recorded and the case was transferred to Kodoli police station which had jurisdiction over the place of offence.
Accused No.1Dattu Shamrao, had suffered companytusion over left forearm, 2x1 reddish in companyour.
On trial, the Additional Sessions Judge, Kolhapur companyvicted accused Nos.
On appeal, the High Court acquitted the accused Nos.
2 4 were acquitted by the High Court on the ground that they did number play active part, that the injury alleged to have been caused by accused No.2 was number proved by medical evidence and that accused No.4 arrived at the scene of offence much later as per the version in the FIR.
Initially some investigation was done by the Head Constable of Kodoli P.S.PW14 who went to the village and drew up the panchnama of the scene of occurrence.
There were three head injuries on the deceased Bajirao which are attributed to the attack by accused No.3.
It may be that PW9 is an untruthful witness but the omissions and companytradictions cannot be treated as evidence of the alleged facts.
PW17 the Sub Inspector incharge of Kodoli police station, companytinued the investigation from 20.8.1984 onwards.
The case of the prosecution is as follows The deceased and the accused belonged to nearby villages, namely Varakatwadi and Walkewadi respectively.
Then the prosecution party started beating the other accused.
They referred to the companyplaint filed by them against the prosecution party.
While so, on the date of the incident itself, the second accused Shamrao lodged a companyplaint with Kodoli police station alleging that he and other accused were assaulted by the two deceased PW10 and his brother with axes, sticks and cycle chain.
They denied the presence of lady witnessesPWs 6, 7 8 at the scene of occurrence.
P.C. It was also observed The version given by the prosecution and the companyplainant that on the date of incident at about 10 a.m. they were going to the land of Mali owned by Akkatai appears to be most natural and probable.
P.C. to record its findings on these two aspects.
20 , the lack of blood stains at the alleged place of incident pointed out by Tutala Baithe wife of A2 to the I.O., the presence of blood on the earth recovered from the actual spot and the evidence of I.O. The trial Court companycluded as follows Thus it is clear that as the place of offence is near the house of Hindurao Walake, it falsifies the version of the accused that the incident took place in front of their house as companytended by them in their written statement under Section 313 Cr.
21 , the evidence of panch witnessVasant Sawant Ext.
Accused No.2 is alleged to have given a stick blow on the head and the back of PW10.
The houses of the accused are towards the east of the place of offence separated by two or three houses.
Accused Nos.
The details of such injuries are as follows Accused No.2Shamrao, had suffered incised wound obliquely on the right parietal region of his head, 2 x , companytusion 1 x 1 over left wrist and multiple abrasion over the right scapula region.
The learned Sessions Judge referred to the map Ext.
While admitting the incident, they stated that the deceased Krishna and his three sons entered the house of the accused armed with axe, cycle chain and stick and one of them Ananda assaulted Tanaji A3 with the cycle chain as a result of which he fell down and became unconscious.
P.C., the appellants filed a written statement in which they took the plea of private defence.
53 , the scene of offence Ext.
When they came near the house of one Hindurao Valake, which is close to the house of the accused, the accused armed with gun, axes and sticks attacked the prosecution party.
He seized the gun and axe from the houses of the accused and recorded the statements of the witnesses and after investigation filed charge sheet on 31.12.1984.
The trial Court discussed this aspect in detail.
Aggrieved by their companyviction and sentence, the two appellants who are accused Nos.
However, the prosecution party companytinued to beat the accused and cause injuries to them.
In spite of the finding that the right of private defence was available to the accused and that the accused No.4 entered the scene later on, curiously the High Court upheld his companyviction under Section 324 for causing the injury to PW10.
Having companye to know that three injured persons were admitted in the hospital, at about 3.00 p.m., he went and saw the patients namely Krishna, Bajirao and Sambaji in the ward and he recorded the statement of SambajiPW10 who was able to speak.
It is number possible to say with reasonable certainty as to which party provoked the other and how the fight was initiated.
So also he denied having made the statement that the deceased Krishna and his three sons were hurling abuses in loud tone against the accused for the previous nights assault on A1.
On the very next day at about 10 a.m. the two deceased persons, namely Krishna and his son Bajirao along with PW10 and his brother Ananda and the ladies Suseela PW7 and Kamal PW8 went to the village Walkewadi for the purpose of carrying on weeding operations in the land belonging to PW6Akkatai who is the daughter of the deceased Krishna and the sister of deceased Bajirao.
None of them explained as to how the accused received injuries.
Though three injuries were numbered, they are all on the left parietal region causing the fracture of skull bone.
The suggestion put to him was denied.
