VIJAY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both above appeal and application, i.e. appeal by convict, challenging the judgment and order of conviction and the application by original complainant praying for enhancement of sentence are arising out of judgment and order passed by learned IIIrd Ad-hoc Additional Sessions Judge, Aurangabad, dtd. 9/5/2002 in Sessions Case No. 213 of 1998.

(2.) Informant and accused are not only relatives, but also adjoining land owners of each other. There is a common ridge separating their agricultural land. There is civil litigation over land Gut no.116. In above backdrop, it is the case of prosecution that when informant, and his brother, father, mother and wife of his brother were harvesting crop, accused party came, abused and mounted assault. There are allegations that accused Sonya Bapu caught Shivaji and thereafter accused Vijay inflicted axe blow on the head of Shivaji, whereas accused Sharad Govind and Dattu Govind beat Shivaji with sticks. Rest of accused gave sticks blows on the thighs of father of the informant. Ladies also indulged in abuse and scuffle. When Shivaji was admitted in hospital, his brother Dnyaneshwar lodged report, on the strength of which crime was registered and investigated by PW7 PI Shivaji Patil. Upon trial, learned trial Judge convicted present appellants for offence punishable under Sec. 323, 324, 326, 143, 147 read with sec. 149 of Indian Penal Code (IPC). But, instead of sentence, they were given benefit of sec. 360 of Cr.P.C. Aggrieved by the above, exception has been taken by convicts by preferring instant appeal.

(3.) Learned counsel for appellants would submit that, admittedly, informant and accused party are relatives as well as neighbours of each other. That there is a civil dispute over possession of Gut no.116. It is pointed out that, there are cross complaints. However, learned trial Court has not appreciated the prosecution evidence in its correct perspective. He would submit that, without any evidence, learned trial Court has recorded finding that appellant convicts are aggressors. That, in fact, there was no material to reach to any conclusion of such sort. He submitted that, even recovery and discovery is doubtful. Even actual spot of occurrence has not been proved beyond reasonable doubt and when rather prosecution has failed to establish the genesis itself, it is his submission that, findings and conclusions are not legally sustainable.