BAPURAO MAROTI KUNBI Vs. EMPEROR

JUDGEMENT

(1.) THE seven appellants Bapurao and others were tried in the Court of the Sessions Judge, Amraoti, on the charge of attempt to commit murder of one Narayan. There were seven other persons tried along with them. The trial was by jury. The jury returned a unanimous verdict of not guilty in favour of seven persons and that of guilty of the offence of attempt to commit culpable homicide not amounting to murder punishable under Section 308, I.P.C., against the appellants. The learned Sessions Judge accepted the verdict of the jury and acquitted seven persons and convicted the seven appellants of the offence of attempt to commit culpable homicide not amounting to murder punishable under Section 308, I.P.C., read with Section 149, I.P.C., and sentenced each of them to undergo rigorous imprisonment for two years. They were tried with the aid of assessors separately for the offence of rioting punishable under Section 147, I.P.C. They were found guilty. The learned Sessions Judge accepting the opinion of the assessors convicted each of them of the offence and sentenced each of them to undergo rigorous imprisonment for six months with the direction that the sentences were to run concurrently with those awarded for the offence under Section 308, I.P.C., read with Section 149, I.P.C.

(2.) THE case was simple. While the complainant Narayan was searching for his brother Bajirao who was to accompany him in a chakra to Daryapur he was beaten with sticks by the seven appellants who were on terms of enmity with him. The learned Sessions Judge in his charge to the jury set forth the facts of the case, viz., that the complainant Narayan was assaulted with lathis by the appellants and others and that he sustained 9 injuries in all, out of which 3 were fractures, one of the left parietal bone, the other of the face bone, and the third of the ulner bone. When he was admitted to the Irwin Hospital on 26th February 1939 he was in a semi conscious condition. The charge set forth that there were two parties hostile to each other in the village of Nachona. The complainant Narayan belonged to one party and the appellants belonged to the other which consisted of Kunbis and Mahars. There was a long- standing quarrel in the course of which the complainant Narayan had made some complaints against the trustees of his temple property, laid a theft charge against some of the accused and helped the police in a case of house-breaking against two of the accused. Some of the accused had been active against the complainant Narayan and the learned Sessions Judge set forth the evidence bearing on their activities in going to Lahegaon Nala to beat the complainant on 30th January 1939. The accused pleaded that they had gone to Lahegaon not to beat Narayan but to protect a Gosai. Then there was an attempt made to beat Narayan a few days later at Kanholi. Then the learned Sessions Judge dealt with the evidence bearing on the incident in question. He briefly analysed the evidence of the eye-witnesses Narayan (P.W. 1), Kisan (P.W 2), Ramu (P.W. 3), Gulab (P.W. 9), Radhi (P.W. 5) and Ganpat (P.W. 7) besides the evidence of Mahadeo (P.W. 8), Nathya (P.W. 11) and Kashinath (P.W. 12) who spoke of the assembling of the accused persons some time before the assault. He then referred to the defence which in the case of all except Bapurao No. 1 was that of alibi.

(3.) THE learned Counsel for the appellants had indeed an uphill task before him in view of the unanimous verdict of the jury. He has tried to point out numerous details in the evidence for the prosecution and the circumstances of the case which tended to discredit the story of the prosecution. The very close and minute criticism of the prosecution evidence offered by the learned Counsel for the appellants was of a character which could more appropriately be put forth in an appeal against conviction in a trial held without a jury. To give an idea of the line which he took in the course of his argument I may briefly refer to some points raised by him. According to him the important circumstances were that the case was registered by the police under Section 307 instead of Section 325, I.P.C., and that has prejudiced the accused. The discovery by the Sub-Inspector of Laxman Singh as a witness was highly suspicious as he was his friend. Between 25th February and 3rd March, the police did not examine a single eye-witness and that Ramu and Gulab said that they did not disclose the name of any of the assailants. There were criminal proceedings between the accused and the prosecution witnesses. The first information report only mentioned Mudgal and Ganpat Singh and the names of Ramia and Gulabia. were not disclosed. The conduct of Ramia and Gulabia ought to have been more vividly described to the jury. Radhi (P.W. 5) was Ramia's mistress and it should have been shown that she was interested. The other Radhi was given up without any explanation. Mahadeo (P.W. 8) was an insolvent and had been fined for an affray.