PANDURANG NARAYAN JAWALEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal under the provisions of The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 against an order of the High Court dated 15/16-9-1971 by which the High Court set aside the acquittal of the appellant under S. 302 I. P. C. and convicted him under S. 302 I. P. C. and sentenced him to imprisonment for life. He was also convicted under S. 324 I. P. C. and sentenced to two years. The facts of the case have been briefly summarised in the judgment of the High Court as also that of the Sessions Judge and it is not necessary to repeat the same. The dispute in the instant case appears to have taken place on the sharing of water with the help of an electric motor installed by one of the co-sharers. It appears that the accused was not pleased with the rate charged by the owner of the engine and wanted to pay less. Thereafter there was an exchange of abuses on which the deceased Gena intervened and asked the parties not to fight. This appears to have enraged the appellant Pandurang who took hold of an iron bar and gave a blow on the head of the deceased as a result of which the deceased fell down and died. The occurrence took place at about 8.30 P.M. on 21-12-1968 and an F.I.R. was lodged by Balbhim alias Dagadu P. W. 6 at 11.30 P.M. The deceased died on 25-12-1968 in a hospital. After the usual investigation the police submitted a charge sheet against the appellant and other accused, who were, however, acquitted by the sessions Judge but convicted by the High Court as indicated above.

(2.) Mr. Ganpule, learned counsel for the appellant raised three points before us. In the first place he submitted that this was not a case in which the High Court ought to have reversed the judgment of acquittal because the view taken by the Sessions Judge on the evidence led by the prosecution was reasonably possible. So far as this contention is concerned we have gone through the judgment of the Sessions Judge and that of the High Court and we feel that the High Court, in the circumstances, was fully justified in reversing the order of acquittal. There were three main eye witnesses to the assault, on the deceased by the appellant, and they were P.Ws. 6, 7 and 9. The Sessions Judge had vehemently criticised the evidence of P. W. 6, the informant, because there were some discrepancies between his statement in the F.I.R. and his deposition in the Court. In the report this witness had stated that an axe injury was given by the appellant to P.W. 9 Hanmant and the iron bar injury was given to the deceased not by the appellant but by his uncle Narain (A1). In the court, however, the informant modified his previous statement and stated that the deceased was assaulted by iron bar by the appellant. While there may be some justification for not placing implicit reliance on the evidence of P.W. 6, the informant, we see no reason whatsoever for discarding the evidence of P.Ws. 7 and 9 which appears to be wholly consistent throughout. One of the main considerations which weighed with the learned judge in rejecting the evidence of P.Ws. 7 and 9 was that the two witnesses were examined 4-5 days after the occurrence i.e. on 26-12-1968. On a reference to the record, we, however, find that so far as P.W. 7 Atmaram is concerned, he was examined on 23-12-1968 while P.W. 9 was examined on 26-12-1968 obviously because he was confined as an indoor patient in a hospital several miles away from the police station. The investigation officer may have thought it fit to record the statement of P.W. 9 when he went to the hospital. We have carefully perused the evidence of these two witnesses and we fully agree with the High Court that their evidence is worthy of credence. For these reasons, therefore, we are clearly of the opinion that the High Court was right in reversing the order of acquittal passed by the Sessions Judge.

(3.) It was then submitted that the prosecution has not given any explanation for the injuries suffered by the accused. The informant in his evidence has admitted that two of the accused persons were in fact injured. The presence of injuries on the person of the accused in the circumstances of this case goes to prove their participation in the fight. In these circumstances, therefore, the contention of the learned counsel before this Court must be overruled.