(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. CRIMINAL APPEAL NO. 59 OF 2011 1. Ramesh s/o. Tulshiram Mahajan, Age : 40 years, Occupation : - , R/o. Samtanagar, Chopda, Taluka : Chopda, District : Jalgaon. 2. Gopal s/o. Tulshiram Mahajan, Age : 44 years, Occupation : - , R/o. Samtanagar, Chopda, Taluka : Chopda, District : Jalgaon. 3. Eknath s/o. Tulshiram Mahajan, Age : 29 years, Occupation : - , R/o. Samtanagar, Chopda, Taluka : Chopda, .. Appellants District : Jalgaon. (Original accused) versus The State of Maharashtra. .. Respondent (Original complainant) ....................... (2) Mr. K.C. Sant, Advocate, for the appellants. Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. Date of reserving the judgment : 29th June 2011. Date of pronouncing the judgment : 15th July 2011. JUDGMENT : 1. 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, (3) 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 (4) 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. (5) 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. (6) (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 (7) 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 re- framed, 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. (9) (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 (PW 6) - Resident of same vicinity of 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 panchanama (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. (10) (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. (11) 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. (12) 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 (13) 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 (14) 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 (15) 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 (16) 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. (17) 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 (18) 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. (19) 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