THE STATE OF MAHARASHTRA Vs. PANDIT NAU MHATRE

JUDGEMENT

(1.) Criminal Appeal No. 1288 of 2006 has been filed by the accused/appellant challenging his conviction for an offence punishable under Section 326 of the Indian Penal Code and sentence of RI for 10 years and fine of Rs. 5000/-, in default of which to undergo further RI for one month, by the III Ad hoc Additional Sessions Judge, Thane, by judgment dated 14/11/2006, in Sessions Case No. 381 of 2005. Criminal Appeal No. 577 of 2007 has been filed by the State questioning the correctness of the acquittal of the respondent/accused as recorded by the III Ad hoc Additional Sessions Judge, Thane. Since both the appeals arise from the judgment of the trial court, these appeals are being decided by this common judgment. Facts, as are necessary for the decision of these appeals, may briefly be stated thus:--

(2.) On the case being committed to Court of Sessions, trial court vide Exh. 2 framed charge against the appellant for offence punishable under Section 302 of the IPC. The appellant vide Exh. 3 denied his guilt and claimed to be tried. Prosecution in support of its case examined eight witnesses. The defence of the appellant was of denial. The trial court upon appreciation of the evidence acquitted the appellant for offence punishable under Section 302 of the IPC, but convicted and sentenced him as afore-stated for an offence punishable under Section 326 of the IPC. The State being thus aggrieved by the acquittal of the appellant/accused for offence punishable under Section 302 of the IPC, has filed Criminal Appeal No. 577 of 2007 questioning his acquittal, while the appellant being aggrieved by his conviction has filed Criminal Appeal No. 1288 of 2006. Both these appeals, therefore, are being decided by this common judgment.

(3.) Prosecution has principally relied upon the testimony of PW 2 - Pundalik, PW 3 - Laxman, PW 5 - Gurunath and PW 6 - Anandi as eye witnesses to the incident. PW 2 - Pundalik deposes that deceased Kashinath was his son, who was a member/organizer of a Band i.e. a group of persons who used to play musical instruments in the marriage. The appellant/accused was also a member of the group. According to PW 2 - Pundalik, on 19/5/2005, at about 12 in the noon, deceased Kashinath, along with other members of the group had gone to village Kachore for playing the musical instruments. The appellant had not been taken along with them. Deceased Kashinath and others returned back at about 2 in the morning. On 20/5/2005 at about 7 to 7.15 a.m. while deceased Kashinath was sitting on the steps and brushing his teeth, the appellant came to the house of PW 2 - Pundalik. PW 2 -Pundalik at that time was standing, though inside the room but near the door. The appellant questioned deceased Kashinath as to why he had not been taken along with others for playing musical instruments. It appears that there was some altercation between deceased Kashinath and the appellant and the appellant who was carrying a sickle with him, dealt a blow of sickle on the hand of deceased Kashinath. It further appears that since the blade of the sickle was curved, an injury was also inflicted on the ribs of deceased Kashinath.