Surendra & Anr vs State Of Maharashtra

The deceased admittedly was the uncle of the Appellants. Injured Dilip and Mina are his son and daughter. He had three other sons, viz., Jaywanta, Umakant and Navin Nischal as also a daughter by the name of Hemlata. The incidence took place on 11.12.95 at about 7 a.m. Dilip was allegedly going to a Pan Shop early in the morning. When he crossed some distance, Appellant No. 2 allegedly came out with a stick and hurled some blows on him. Mina (PW-1) seeing this is said to have raised hue and cry. The deceased Devaji came out thereafter and made endeavours to rescue him. At that time Surendra Appellant No. 1 allegedly took out one ubhari (a big stick) from a bullock cart and assaulted him. Mina went to police station and filed a complaint which was marked as Ex. P-29. However, a First Information Report was lodged on a complaint made by Navin Nischal (PW-

The Appellants contend that Devaji and Dilip had been nurturing deep resentment against them and in particular against Appellant No. 1 who after his father's death had been looking after the family properties. They were determined to kill Appellant No. 1. Devaji and Dilip allegedly came armed and made attempts to assault Appellant No. 1 who was milking his cows in the cattle shed. Dilip entered into the cattle shed and hurled a blow on his abdomen. He warded off the blows by taking them on his left hand and, thus, received injuries. Thereafter in course of scuffle between them, Dilip fell down in the courtyard and sustained an injury on his head. Devaji thereafter assaulted Appellant No. 1 with a stump of bullock cart on his right hand. He with a view to exercise his right of private defence took out an ubhari from his bullock cart and injured Devaji. Mina also intervened in the meantime and sustained an injury on her left hand. Allegedly, Appellant No. 1 Surendra thereafter went to police station and lodged a report pursuant whereto a First Information Report was lodged against Dilip and others for commission of an offence under Section 324 read with Section 34 of the Indian Penal Code. All the injured persons were also sent to the Hospital by the Investigating Officer. A chargesheet was also filed under Section 324 of the Indian Penal Code against some of the prosecution witnesses.

Before the learned Trial Judge the prosecution examined several witnesses out of whom PWs 1, 2 and 3 Mina, Navin and Dilip were daughter and sons of the deceased. PW-4 is said to be an independent witness.

Mina, PW-1 is one of the injured witnesses. According to her, she had gone to police station and her statement was recorded. The same was marked before the learned Sessions Judge as Ex. P-29. The report of Navin Nischal (PW-2) which was considered as the First Information Report and on the basis whereof the investigation started was marked as Ex. P-31. No explanation has been offered by the prosecution as to why the report of Mina was not treated to be a First Information Report. Mina does not appear to be wholly truthful as she in her statement before the police did not allege that both the Appellants were armed with sticks. In her statement before the police, she also did not state that Dilip was taken to the house of a neighbour for taking water although in his statement Dilip stated he had become unconscious. Mina had also not made any statement that immediately after the occurrence, the Appellants had threatened others not to intermeddle in the matter and if they do so they would face dire consequences. PW-2 categorically stated that Mina had gone to police station prior to him.

A suggestion was given to him that Appellant No. 1 had taken out ubhari from bullock cart to save his life which he denied. In his cross- examination, he further stated:

For the reasons aforementioned, we are of the opinion that the conviction of the Appellants under Section 302 read with Section 34 of the Indian Penal Code cannot be sustained. They are held guilty for commission of an offence under Part I, Section 304 of the Indian Penal Code. They are directed to suffer rigorous imprisonment for a period of 10 years. The conviction and sentence imposed on them under Section 324 read with Section 34 is, however, upheld. The sentences, however, shall run concurrently. This appeal is, thus, allowed in part and to the extent mentioned hereinbefore.