Bombay High Court
Tulsiram Bhanudas Kambale
Versus
State of Maharashtra
Decided On:

Headnote:Sections 34, 149, 302, 324 and 452-Criminal Procedure Code, 1973, Sections 235 and 245-Deaths and injuries caused by combined attack by sword, sattur and axe-Conviction - Appeal-One eye-witness being got up witness not to be relied upon - Both sides an inimical terms-Inimical witnesses-Evidence to be evaluated with caution-Interested witness a brother of victim-No attempt by him to save his brother victim-It creates doubt about his presence at sport-Injured witness on inimical terms-It is evidence can be accepted if appears truthful-Statement as to his involvement only can be accepted-FIR sent to Magistrate very late without explanation-Held, conviction altered to one under Section 452 read with Section 34, IPC.Out of the five eye-witnesses, it would only be safe to accept the evidence of 0 to the extent it is corroborated by his statement recorded by the SEM and since, the said corroboration is only in respect of participation of appellants T, O, N and R, it would only be prudent to convict then1. Rest of the appellants would have to be given the benefit of doubt.

       In the statement of D the allegation against the said appellants is that they entered inside his house assaulted him with sword and sattur on vital parts of his body and thereafter he became unconscious and regained his consciousness in Civil Hospital, Sholapur where the SEM recorded his statement.

       It is significant to point out that in his substantive statement 0 has not referred to the assault on the two deceased persons, B and M. In view of his statement, on the first blush, Court felt that offences under Section 307/34 and 452/34, IPC would be made out. But learned Additional Public Prosecutor pointed out that in as much as for the assault on D the said appellants alongwith others were charged under Section 307 read with 149, IPC and they have been acquitted on the said count and the State of Maharashtra has not preferred an appeal against their acquittal on the said count it would not be permissible for us to do so. Court find merit in Mr. B submission and accept it. Hence in Courts view only an offence under Section 452 read with IPC would be made out against the said appellants.

       For Citation : 1999 (5) Bom CR 619 at p. 633