1 CRI.APPEAL NO.144/1994 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL 144 of 1994 The State of Maharashtra. ...APPELLANT (Ori.Complainant) VERSUS 1. Vithal s/o Abasaheb Aute, age 30 yrs. 2. Narendra s/o Raosaheb Aute, age 22 yrs. 3. Pandurang s/o Abasaheb Aute, age 25 yrs. 4. Harubai w/o Raosaheb Aute, age 45 yrs. 5. Hirabai w/o Ambadas Aute, age 22 yrs ( died). 6. Raosaheb s/o Bhikaji Aute, age 65 yrs. 7. Kalyan s/o Raosaheb Aute, age 28 yrs. 8. Ramesh s/o Raosaheb Aute, age 18 yrs. 9. Ambadas s/o Raosaheb Aute, age 35 yrs. Nos. 1 to 3 and 6 to 9 agriculturists and no.4 household, by occupation, and all r/o Nanda Tq. Ashti, Dist.Beed. ...RESPONDENTS (Ori.accused) ... CORAM: A.H.JOSHI & A.R.JOSHI, JJ. Date: SEPT., 21st, 2011 *** Mr.N.R.Shaikh, APP for appellant. Mr.K.D.Bade-Patil, Adv.,for R.Nos.1 to 4 & 6 to 9. Respondent No.5 - dead. 2 CRI.APPEAL NO.144/1994 JUDGMENT:( Per A.H.Joshi, J.) 1. This is a State appeal. The accused were charged for the offences punishable under Sections 143, 147, 148, 149, 324 and 302 of IPC. The trial has resulted into acquittal. 2. The prosecution has relied upon three witnesses; PW No.3 Ajinath Yeshwanta Aute, PW No. 4 Baban Yeshwanta Aute and PW No.5 Mandabai w/o Nawanath Aute, who were injured eye witnesses, as regards the incident. 3. Perused the testimony of medical witness PW No.8 Dr.Somnath Vishwanath Tekale (Exh.64), PW No.3 Ajinath Yeshwanta Aute (Exh.57), PW No.4 Baban Yeshwanta Aute (Exh.59) and PW No.5 Mandabai Nawanath Aute (Exh.60). 4. The post mortem examination report reveals the cause of death to be: " In my opinion the cause of death is "shock" due to "Hemopericardium." 5. Testimony of PW No.8 Dr. Somnath Vishwanath Tekale discloses that injury No.6 in column no.17 corresponds with the injury to the heart. Injury No.6 reads as follows: 3 CRI.APPEAL NO.144/1994 "Imprint abrasion below (Lt.) mammary gland 6 x 5 cm. irregular." In his examination in chief, PW No.8 Dr.Somnath Tekale has described internal injury to the heart as under: "1. Pericardium intact, cavity contains dark blood, heart pale on auricles, bluish black colouration of both ventricals, rupture of blood vessels of heart on cut section right side contained dark blood, while left side seen empty. " He further states that the said injury to the heart (underlined portion in the above quotation) corresponds with injury No.6. 6. In the the post mortem report as well as in the testimony, PW No.8 does not narrate any fracture to the ribs and injury to the heart on account thereof. 7. The evidence of PW No.3 Ajinath Yeshwanta Aute, PW No.4 Baban Yeshwanta Aute and PW No.5 Mandabai Nawanath Aute discloses multiple assaults by the accused persons on the person of deceased Navnath. 4 CRI.APPEAL NO.144/1994 8. Injury to Navnath, which has resulted into death is, however, single injury. Minor injuries on the body, other than injury No.6 shown in column No.17, are simple in nature. 9. Testimonies of PW Nos. 3, 4 and 5 pose and present an exaggeration, for exerting to involve all other accused persons, for attributing multiple injuries on the chest. The fact of the matter i.e. injury on the person of the deceased, particularly, on the chest, reflects only one injury. Thereby version of these witnesses for involving all other accused in multiple injuries on the chest of deceased, is falsified. 10. Though the learned Sessions Judge held it to be a case of homicidal death, the conclusion which is impelled by the circumstances is summarized as follows: (i) In absence of fracture of ribs, the injury caused on the chest by anyone amongst the accused persons is not proved to be of such grave nature that it would be caused with the knowledge that it would tend to reach the heart and break/ cause rupture. 5 CRI.APPEAL NO.144/1994 (ii) In any case, the knowledge to kill by the said assault caused on the chest cannot be attributed or inferred. (iii) The offence under Section 302 of IPC thus automatically gets ruled out. (iv) In so far as act of assault by various accused persons is concerned, the history of the case suggests that the accused were not the aggressors; but the group of complainants, was, and obviously, for the said reason, they were simultaneously charged. There was a cross case and a Sessions case resulting therefrom being Sessions Case No.20/1989 arising out of one and the same incident wherein PW 3 Ajinath Yeshwanta Aute, PW No.4 Baban Yeshwanta Aute and PW No.5 Mandabai Nawanath Aute, have been arrayed as accused nos. 1, 2 and 4, respectively, along with other accused persons. 11. Had the unlawful assembly been proved, the fate of the case may have been different. 12. Therefore, we are satisfied that the view taken by the learned Sessions Judge that the 6 CRI.APPEAL NO.144/1994 accused were aggressors and the charge of unlawful assembly and murderous assault by any particular accused is not proved, requires to be upheld. We are, therefore, satisfied that the appeal has no merit and it is dismissed. (A.R.JOSHI, J.) (A.H.JOSHI,J.) ... AGP/144-94crapeal