CDJ Law Journals

Oral Judgment:

1. Initially, this appeal was filed by 2 Appellants, challenging the judgment and order dated 04.09.2004 passed by the learned Additional Sessions Judge, Nilanga, wherein the Appellants came to be convicted for the offence punishable u/s 307 r/w 34 of the Indian Penal Code and sentenced to suffer RI for 2 (two) years with fine. However, during the pendency of the instant appeal, Appellant No.1 Maharudrappa Birajdar expired and therefore appeal against him came to be abated vide order dated 12.08.2026.

2. The facts in nutshell are as under :-

                    [a] One Nagnath s/o Maharudrappa Birajdar was r/o Village Korali, where the accused persons are also resident of same village. Six months prior to the incident, there was a quarrel between Nagnath and accused persons in which accused persons were assaulted by Nagnath. Therefore, complaint was lodged and said Nagnath came to be arrested, who is informant in this case.

                    [b] On 29.01.2003, at about 10.00 p.m., the informant with an intent to sleep in his agricultural field, proceeded from his house, accompanied by his friend Venkat Baswaraj Birajdar. When Venkat Birajdar proceeded towards his house to bring tiffin, at that time Accused No.1 (Appellant No.2 herein) Vilas Maharudrappa Birajdar and accused No.2 (Appellant No.1 herein) Maharudrappa came towards informant (Nagnath), and they were carrying weapons like Katti (dRrh) and axe in their hands.

                    [c] There was scuffle between the accused persons and Nagnath on the ground that there was no improvement in Nagnath despite previous prosecution against him and said Nagnath had kept evil eye on the wife of accused No.1 Vilas. On the said count, accused Vilas gave blow of an axe over his head. Thereafter, again another blow was given on his head. Accused No.2 Maharudrappa gave blow by means of Katti over his back and his left chest. The other accused persons Shivamma Maharudrappa Birajdar and Nilamma Vilas Birajdar also abused Nagnath and gave fist and kick blows.

                    [d] On hearing the hue and cry, Venkat Birajdar, Laxmibai, Mahananda, Gundu Tambale, Sidhu Baburao Swami, Sudhakar Birajdar, Baswaraj Baburao Kole and other persons gathered at the place of incident.

                    [e] Due to the assault, Nagnath had become unconscious and therefore he was taken to Police Station and Police Referred him to Hospital. After taking treatment and regaining consciousness, his statement was recorded by Police on 30.01.2003 at Exh.21. On the basis of said statement, Police had registered Crime No.16/2003.

                    [f] During the course of investigation, Investigating Officer recorded the panchnama of spot of incident and seized blood stained clothes of injured. Thereafter he recorded statements of 10 witnesses on the same day, and arrested the accused. On 31.01.2003, during police custody, accused No.1 Vilas gave memorandum statement and accordingly in presence of panch witnesses, he discovered one axe and Katti allegedly concealed by him in his house.

                    [g] After collecting the incriminating material, the Investigating Officer forwarded the same to chemical analysis. After investigation and upon receipt of medical certificate, charge sheet came to be filed against the accused persons u/s 323, 504, 307 r/w Section 34 of the IPC before the learned Magistrate. Thereafter the case was committed to the Sessions Court for trial.

                    [h] After committal of the case, the learned Sessions Judge framed charge u/s 323, 504, 307 r/w 34 of the IPC at Exh.8. The accused pleaded not guilty and claimed to be tried.

3. In order to prove the case against the accused persons, the prosecution has examined in all 12 witnesses, details of which are as under for ready reference :-

P.W.No.1	Ram Dhondiba Birajdar, examined at Exh.17	Panch witness to the place of incident and seizure of clothes of injured
P.W.No.2	Nagnath Maharudrappa Birajdar, examined at Exh.20	Complainant as well as injured
P.W.No.3	Mahananda w/o Nagnath Birajdar, examined at Exh.22	Eye witness
P.W.No.4	Sudhakar Shivabasappa Birajdar, examined at Exh.24	Eye witness
P.W.No.5	Venkat Baswantappa Birajdar, examined at Exh.25	Eye witness
P.W.No.6	Gundu Baswaraj Tambale, examined at Exh.26	Eye witness
P.W.No.7	Baswaraj Baburao Kole, examined at Exh.27	Eye witness
P.W.No.8	Haridas Pralhadrao Funde, examined at Exh.28	P.S.O. of Kasar Shirsi Police Station, who registered the offence.
P.W.No.9	Popat Bajirao Gaikwad, examined at Exh.29	Investigating Officer
P.W.No.10	Dr.Pandit Vyankatrao Butukane, examined at Exh.33	Medical Officer, examining the complainant Nagnath
P.W.No.11	Mohan Apparao Mumale, examined at Exh.35	Panch witness to the memorandum statement.
P.W.No.12	Sukhdeo Ladaba Berad, examined at Exh.36	A.S.I., who recorded the statement of injured complainant Nagnath.

4. After completion of the evidence, the statement of the accused persons came to be recorded u/s 313 of the Cr.P.C. After hearing the accused persons, the learned Sessions Court, vide the impugned judgment and order dated 04.09.2004, convicted accused No.1 Vilas (Appellant No.2) and Maharudrappa (Appellant No.1) for the offence punishable u/s 307 r/w 34 of the IPC and they were sentenced to suffer RI for 2 years and to pay fine of Rs.1,000/- each, in default to suffer further RI for 6 months. Since the offence u/s 323 of the IPC is minor in relation to offence under Section 307 of the IPC, no separate sentence is passed against the accused persons u/s 323 r/w 34 of the IPC. The accused persons were acquitted u/s 504 r/w 34 of the IPC. Except above 2 accused persons, accused Nos. 3 and 4 came to be acquitted by the Trial Court.

5. Being aggrieved by the aforesaid judgment and order, the Appellants have preferred the instant appeal.

6. The learned Advocate for the Appellants Mr.Kale submitted that Appellant No.2 i.e. Vilas alleged to have assaulted the victim by means of an axe. According to him, the statement of Dr.Pandit Butukane and certificate of injury clearly shows that all the 3 injuries are simple in nature and it is due to hard object. If the statements of the victim as well as witnesses are considered, the accused persons alleged to have used the weapons Axe and Katti. Both the weapons are having sharp edge. However, the injury certificate of victim Nagnath at Exh.34 discloses 3 injuries by hard weapons and not sharp weapons. He further submits that if there was an intention of the assailants/appellants to cause death of the victim, they might have used sharp edged weapon like axe to assault the victim. It is well settled that intention of accused can begathered from actual injury, if any, as well as from surrounding circumstances. However, the injuries have been stated to be simple and weapon used for inflicting injuries has been stated to be hard and not with the sharp weapon. The aforesaid aspect itself goes to show that there was no intention on the part of the assailants/appellants to commit the murder of the victim, and therefore relying upon such evidence, conviction u/s 307 of the IPC is not sustainable.

7. Mr.Kale, the learned Advocate for the Appellants further submitted that the chemical analysis report of the alleged weapon discloses that there were no blood stains on the said weapon. This again goes to corroborate the medical certificates to the extent that the injuries being simple in nature, no blood stains on the weapon creates out of the alleged incident. He further submitted that the incident alleged to have been taken place on account of revenge of earlier incident in which the informant/victim is an accused and had been in the custody for teasing the wife of the appellant/accused No.1. He further submitted that the incident in question took place in the year 2003 and now almost 23 years have been lapsed. The age of the appellant is above 60 years, At this age, sending him in jail, will amount hardship to the entire family. The Appellant is the only earning member of the family. His father i.e. Appellant No.1 Maharudrappa already expired and there is no one to look after his old age mother, wife and children. The learned Advocate Mr.Kale further submitted that when the evidence of the witnesses was recorded by the Trial Court, the complainant had submitted an affidavit of compromise stating that he has no grievance against the accused persons. However the said compromise could not be considered by the Trial Court since the evidence has already been recorded. Now the said informant is reported to be dead.

8. Looking to the aforesaid background, he submitted that the benefit of doubt be given to the appellants and further he be acquitted from the offences thereby quashing and setting aside the judgment passed by the learned Additional Sessions Judge, Nilanga. The learned Advocate Mr.Kale also submitted that if this Court arrive at the conclusion that the Appellant Vilas is guilty of the offences charged for, he may be given benefit of Probation of Offenders Act.

9. Per contra, the learned APP prays for dismissing the instant appeal. She submits that pendency of the instant appeal for a long period of time will not be a good ground to take a different view than the view expressed by the learned Sessions Court. The Prosecution has sufficiently proved it’s case before the learned Sessions Court. In order to prove the crime, the prosecution has examined as many as 12 witnesses, out of which P.W.Nos. 3 to 7 are eye witnesses. According to her, already the learned Sessions Court observed that there is no reason to disbelieve the testimony of the eye witnesses. She has further submitted that when the ocular evidence of the eye witnesses is inspiring confidence, the Appellant deserves to be convicted. She, therefore, submitted that no leniency be shown to the Appellant and therefore prayed for dismissal of the instant appeal.

10. After hearing the learned Advocates for the respective parties at length and on going through the record, it is found that the incident took place on 29.01.2003 at about 10.00 o’clock. The report was lodged by the informant Nagnath on the basis of his statement recorded in the hospital on 30.01.2003 at 00.35 hours. The accused as well as informant are from the same community and they are resident of the same village. On perusal of the deposition of the informant P.W.No.2 Nagnath, it discloses that he and accused persons are belonging to the same community i.e. Lingayat Wani. The house of the accused is situated at the distance of 100 ft.from his house. He candidly stated that his relation with the accused were strained as he had previously assaulted the father of the Appellant ie. Maharudrappa and upon complaint by them, he was arrested. He has stated that accused No.2 i.e. Vilas gave 2 blows of axe on his head. Except aforesaid evidence, no further aggravating role on the part of the appellants/accused has been stated by the said informant. The evidence of P.W.No.3 Mahananda Nagnath i.e. wife of the Informant, also came to be perused. After hearing the shouts, she reached the spot and noticed that the accused were assaulting her husband by means of alleged weapon. However, in the cross examination, she has admitted that when she reached the spot, the assault was already completed. Likewise, the evidence of Sudhakar i.e. P.W.No.4 and P.W.No.5 Venkat and Gundu and Baswaraj came to be perused minutely. These witnesses have stated that they are related to informant Nagnath and due to darkness, they could not identify the role of each accused. The testimony of these witnesses suffered from severe doubts as they have reached the spot after the incident and have not witnessed the actual assault by the appellant Vilas over the head of the injured P.W.No.2 Nagnath.

11. In order to examine the injuries alleged to have been caused by the weapon seized by the Appellants, the evidence of P.W.No.10 Dr.Pandit Butukane reveals that out of the 3 injuries, injury no.1 is on vital part and which was dangerous to the life of the injured. He submitted that the said injury is possible by means of weapon axe. He has further stated that though the axe is hard object from the other side, incised wound can be possible over temporal region. He has further stated that weapon Katti can also be responsible to cause incised wound. The weapon which was seized at the behest of the appellant, was never referred to the Medical Officer for obtaining his report. Though the injury certificate at Exh.34 discloses that the injuries are simple and have been caused by the hard weapon. However, the Doctor issuing the certificate i.e. P.W.No. 10 Dr.Pandit Butukane is deposing that injury No.1 is serious and life threatening. The certificate issued by him itself creates doubt as regards the nature of injury and therefore his evidence as regards the serious injury can not be considered for the simple reason that he has issued the medical certificate at Exh.34 stating therein that all the injuries are simple in nature. The fact remains that while grievous or life threatening injury was not necessary to maintain a conviction under Section 307 IPC. The intention of the accused can be ascertained from the actual injury, if any, as well as from the surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.

12. Even otherwise, the incident is of 2003. At the time of incident, the age of the Appellant Vilas was 35 years old. Now he has crossed the age of 60 years. The document at Exh.34 came to be perused, the informant during his lifetime has submitted the affidavit dated 04.09.2004 that as the accused persons belonging to his own community and resident of the same village, they have compromised the matter amongst themselves. Since the relations have been improved, he has submitted the said affidavit.

13. The Hon’ble Court in the case of Narinder Singh and others Vs. Punjab State, [(2014) 6 SCC 466], in Cri.Appeal No.2265-2266/2009, Suresh and Others Vs. The State of Maharashtra [MANU/SC/1947/2009] and in Ishwar Singh Vs. State of Madhya Pradesh [(2008) 15 SCC 667] has held that in order to maintain cordial relationship and peaceful atmosphere in the village, in the old crimes, lenient view is required to be taken, thereby not sending the accused persons in jail. However, considering the evidence brought before the Court, it cannot be said that the Appellant has at all not caused any injury on the victim. In pursuance to the legal evidence and the depositions relied upon by the Apex Court, it can be inferred that the offence punishable u/s 324 of the IPC is made out against the Appellant. Hence, I am of the considered opinion that the appellant is guilty of offence u/s 324 of the IPC. However, instead of sending the appellant in jail after the period of 23 years, he is being granted the benefit of Sections 3 and 4 of the Probation of Offenders Act, 1958. The appellants were sentenced to suffer RI for 2 years and to pay fine of Rs.1,000/- each, i/d to suffer further RI for 6 months. It is stated that there are no criminal antecedents against the appellants. Therefore, it would be appropriate to grant benefit u/s 4(1) of the Probation of Offenders Act, 1958 instead of sentencing him to suffer any sentence.

14. In view of the above, the appellant be released on entering into the bond for one year before the Trial Court with 2 sureties. Moreover, he is further directed to receive sentence as and when called upon during the said period from the date of release. The appellant is hereby directed to maintain peace and good behaviour and the Probation Officer shall keep supervision and submit report once in every month in the Trial Court.

15. With the above directions, the appeal stands disposed of in the above terms.

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