LAXMAN UTTAM TAJNE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BOTH these appeals arise out of the same incident in respect of Sessions Trial No. 18 of 1996 held before the Additional Sessions Judge, Washim. Before the Additional Sessions Judge, Washim, nine accused had been put up for trial for offences under sections 147, 148, 302 read with section 149 of the Indian Penal Code and in the alternative, under section 302 read with section 34 of the Indian Penal Code. Learned Additional Sessions Judge, Washim vide judgment dated 3-2-1997 acquitted all the accused of the charges and convicted accused No. 4 Laxman Tajne, appellant in Criminal Appeal No. 54 of 1997 for the offence under section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life. He, however, acquitted him of the charges under sections 147, 148 read with section 149 of the Indian Penal Code. Accused No. 4 Laxman Tajne has, therefore, filed appeal against his conviction and sentence. The State has come in appeal which is Criminal Appeal No. 180 of 1997 against the acquittal of the said accused. Accordingly, both the appeals were heard together and it is proposed to disposed of both the appeals by common judgment.

(2.) THE prosecution case, in brief, insofar as it is relevant for the purpose of decision in the appeals, is that the appellant Laxman had assaulted the deceased Jivan with an axe on 20th November, 1995 at about 10. 30 p. m. The axe blow was given on the neck of deceased Jivan as a result of which he suffered incised wound on left side of neck extending from left sternoclavicle joint to left mandible angle. The injury was 6" in length and 2 cm. in depth, as a result of which, there was laceration of left carotid due to which there was no supply of blood to the brain and the deceased died. According to doctor, the injury was sufficient in the ordinary course of nature to cause death. The prosecution case further is that at the time when Laxman had given axe blow to deceased Jivan, Gourishankar Tajne, who is respondent No. 3 in the appeal filed by State, had not only caught hold of deceased Jivan, but he instigated Laxman to assault Jivan after which appellant Laxman had assaulted Jivan with an axe. It appears that initially quarrel was going on between deceased Jivan and one Vijay Yadav and other respondents were present at the time of incident. There is also evidence to show that excluding appellant Laxman Tajne, other accused had thrown their axes on the person of Jivan and it is only appellant Laxman who had inflicted axe blow on the next of Jivan. The prosecution had examined as many thirteen witnesses in support of the charges.

(3.) MR. Shashank Manohar, learned Advocate appearing on behalf of appellant Laxman Tajne restricted his arguments only in relation to applicability of section 302 of the Indian Penal Code in the facts of this case and he does not challenge the prosecution evidence on merits. According to him, it is a case of solitary injury and in the facts and circumstances of the case, it cannot be said that appellant Laxman intended to inflict the particular injury in question on the neck as a result of which the deceased had died. He has pointed out that there is evidence on record that it was dark and as such it is not possible to attribute the intention to inflict the injury in question to appellant Laxman. According to him, on the basis of prosecution evidence on record, the offence disclosed would fall under section 304 Part II of the Indian Penal Code and that the appeal be allowed to that extent.