Criminal Appeal No. 694 of 1993. Case: Basanna Nigonda Hattali Vs State of Maharashtra. High Court of Bombay (India)

Judgment:

Vishnu Sahai, J.

1. Vide judgment and order dated 24-8-1993 passed in Sessions Case No. 54 of 1992, the Additional District and Sessions Judge, Pandharpur, convicted and sentenced the appellants in the manner stated hereinafter:

   (i) Basanna Nigonda Hattali (appellant No. 1), Malku Bhimraya Hattali (appellant No. 8), Tamrayya Nigonda Patil (appellant No. 12) and Mallensha Nigonda Patil (appellant No. 13) under Section 302 read with Section 34, I.P.C. to life imprisonment;

   (ii) Chandrakant Murgappa Umrani (appellant No. 2), Laxman Hanmant Hattali (appellant No. 3), Dundeppa Shivappa Umrani (appellant No. 4), Pandurang Jagannath Nikam (appellant No. 6), Mohan Baliram Koli (appellant No. 7), Sangappa Bhimraya Hattali (appellant No. 9), Malkanna Annarayya Birajdar (appellant No. 10) and Kallappa Ramchandra Hattali (appellant No. 11) under Section 304, Part II, I.P.C. read with 34, I.P.C., to 5 years R.I. and under Section 323 read with 34, I.P.C. to 6 months R. I. Malkanna Annarayya Birajdar (appellant No. 10), was further convicted under Section 325 read with 34, I.P.C. and sentenced to 3 years R.I.

   (iii) Vithal Krishna Nikam (appellant No. 5) under Section 304, Part II read with 34, I.P.C. to 5 years R.I. and under Section 325 read with 34, I.P.C. to 3 years R.I. The sentences of all the appellants, excepting appellants Nos. 1, 8, 12 and 13 were directed to run concurrently. It is these convictions and sentences of the appellants which have been challenged in the present appeal.

2. The prosecution case, in brief, as emerges from the recitals contained in the FIR and the statements of the three injured witnesses viz. Sangappa Birajdar (P.W. 1), Sidharaya Loni (P.W. 6) and Digambar Appasaheb Pawar (P.W. 11) runs as follows:

   The appellants on one side and the victims on the other are residents of village Chikalgi, situate within the limits of Taluka and police station Mangalwedha, District Sholapur. On 14-11-1991 an election was scheduled for Co-operative Society of village: Chikalgi. Two parties were contesting the election. One of them was led by appellant No. 13 Mallesha Nigonda Patil, and the other by Ishwarappa Birajdar. The informant and others are said to have belonged to the party of Ishwarappa.

   On 12-11-1991, Sangappa Birajdar (P.W. 1), Sidharaya Loni (P.W. 6) Digambar Pawar (P.W. 11) (the three injured) and the deceased Sankonda Birajdar had gone on cycles to the house of one Dariyya Birajdar to hire a tractor belonging to him for bringing the voters in the election, scheduled for 14-11-1991. Dariyappa informed them that his tractor was out of order, but, insisted that before leaving they should have tea. Consequently, the aforesaid persons had tea at Dariyappa's place. While they were returning on cycles, to village Chikkalgi, by the road, leading from Raddhe to Shrirnandgi, and had reached the field of one Ganendra Nikam, all of a sudden the 13 appellants emerged before them. As the time was about 10 p.m. they could be recognised because, there was moon light. They asked the informant Sidhrayya and others as to why they were contesting elections against them. Appellant Basanna Nigonda Hattali was armed with an axe, appellant Chandrakant Murgappa Umrani was armed with a handle of an axe and the remaining appellants were armed with sticks. Thereafter, an assault was launched by the appellants on the informant and others.

   Appellants Basanna Nigonda Hattali, Malku Bhimraya Hattali, Tamrayya Nigonda Patil and Mallesha Nigonda Patil assaulted the deceased Sakonda Birajdar.

   The appellants Vithal Krishna Nikam and Malkanna Annaraya Birajdar assaulted Sangappa Birajdar.

   Appellants Chandrakant Murgappa Umrani, Laxman Hemant Haytali, Dundappa Shivappa Umrani and Mohan Baliram Koli assaulted Sidharaya Loni.

   Appellants Pandurang Jagannath Nikam, Malku Bhimraya Hattali, Sangappa Bhimraya Hattali and Kallappa Ramchandra Hattali, assaulted Digambar Pawar.

   After the incident was over, the informant Sidharaya Loni ran away from the place of incident through the fields. He reached village Chikkalgi where he informed Ishwarappa Birajdar and Sangappa Ramchandra Birajdar about the incident. Consequently Ishwarappa Birajdar, Sangappa, Ramchandra Birajdar the informant Sidharaya Loni along with five to ten other persons came to the place of the incident. There they saw that the deceased was lying dead with injuries on his head, face, and left eye and four bicycles were lying. Thereafter the informant Sidharaya Loni along with Sangappa Birajdar, Digambar Pawar, Ishwarappa Birajdar and Sangappa Ramchandra Birajdar came back to village Chikkalgi. Sangappa Ramchandra Birajdar then proceeded on a motor cycle to village Baclad for bringing a jeep. A jeep was brought on the spot and in the same, the informant, Sidharaya Loni, Sangappa Birajdar, Digambar Pawar and Ishwarappa Birajdar came to police station Mangalwedha, They reached there at about 3.15 a.m.

3. When the informant Siddaraya Loni and others reached police station Mangalwedha at about 3.15 a.m. on 13-11-1991 PSI Vasant Gundiba Pawar P.W. 19 was present there. The informant Siddaraya Loni narrated to him the incident. He reduced the FIR writing with the help of constable Pawar.

4. The medical examination of the three victims Sangappa Birajdar (P.W. 1) Sidharaya Loni (P.W. 6) and Digambar Appasaheb Pawar (P.W. 11) was conducted on 13-11-1991 at Rural Hospital Mangalwedha by Dr. Shirnivas Hari Korulkar. P.W. 18.

   At 10 a.m. Sidharaya Loni was medically examined. The following injuries were found on his person:-

   (1) Laceration over occipital region of scalp 1 x 1/2 x 1/2 cm.

   (2) Contusion over back (a) right supra scapular region 15 x 2 cm. (b) right scapular region 10 x 2 cm. right scapular region 7 x 2 cm.

   (3) Contusion over neck 2 x 1 cm.

   (4) Abrasion over forehead 1 x 1/2 cm. All the injuries were simple in nature and had occurred within 24 hours with blunt and hard object.

   At 10.15 a.m. Digambar Appasaheb Pawar was medically examined and the following injuries were found on his person:-

   (1) Contusion over left forearm posteriory 3 x 2 cm.

   (2) Contusion over chest below the right axilla - 4 x 2 cm.

   (3) Contusion over left right anteriorly 7 x 3 cm.

   All the injuries are simple in nature, were 24 hours old, caused by hard and blunt object.

   At about 10.30 a.m. Sangappa Revgonda Birajdar was medically examined. He was found to have suffered following injuries:-

   (1) Laceration over scalp behind the back of right ear 1 x 1/2 x 1/2 cm.

   (2) Incised wound over right arm laterally 1 x 1/2 x 1/4 cm. and 1 x 1/2 x 1/2 cm.

   (3) Abrasion over right forearm 2 x 1 cm.

   (4) Contusion over left infra scapular region 5 x 2 cm. and 6 x 2 cm.

   All the injuries are simple in nature and caused by hard and blunt object except injury No. 2. All the injuries were caused within 24 hours.

   The aforesaid injuries of the three victims were entered in the out-patient department register (OPD Register) which is maintained day-to-day.

   Dr. Korulkar also stated that when he took over the charge, there was no medico-legal register and the injuries were noted in the OPD Register. He candidly stated that on account of some correspondence made by him, the medico-legal register is being maintained since 1-4-1992.

   Dr. Korulkar referred victims Sidharaya Loni and Sangappa Revgonda Birajdar to Civil Hospital, Solapur. There on 15-11-1991, the aforesaid victims were examined by Dr. Sanjay Atmaram Gaikwad, P.W. 10. Dr. Sanjay Gaikwad found injuries on their person and since the injuries found on Sidharaya Loni are the same which were found by Dr. Korulkar, P.W. 18, we are not reproducing them in our judgment. On Sangappa, he found 1 contusion, 2 contused lacerated wounds and 1 abrasion.

   We may mention that in the opinion of Dr. Gaikwad, the injuries of the aforesaid persons were about 72...