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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 928 OF 2015

Umakant S/o Vasant Kumbhare (Borikar),

Age. 47 years,

R/o. Motinagar, Latur,

Tal. & District Latur.

...

APPELLANT

(Orig. Accused No.1)

VERSUS

The State of Maharashtra

Through Police Station Officer,

Police Station Latur (Rural),

Tal. And District Latur.

...

Respondent

(Orig. Complainant)

Mr. Abhay D. Ostwal, Advocate for the appellant

Mr. R. B. Bagul, APP for the respondent/State

CORAM : R. G. AVACHAT &

R. M. JOSHI, JJ.

RESERVED ON :

10^th OCTOBER, 2022

PRONOUNCED ON: 17^th OCTOBER, 2022

JUDGMENT (PER- R. M. JOSHI, J.):-

1.

Appellant (original Accused) in Sessions Case No. 4

of 2013 and 118 of 2013 has taken exception to judgment and

order dated 16^th November, 2015 passed by Additional

Sessions Judge, Latur, convicting him for offence punishable

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under Sections 302, 143, 147, 148 read with Section 149 of

the Indian Penal Code, by preferring this appeal under Section

374 of the Code of Criminal Procedure.

2.

The appellant along with 19 other persons were

charged for the offences punishable under Sections 143, 147,

148, 302, 120B read with 149 of the Indian Penal Code and

under Section 135 of the Bombay Police Act. They were

subjected to the trial on the basis of case of the prosecution

that there was a dispute between deceased Dyanoba @ Babu

and Vasant-accused No. 17 in respect of bund between their

field. Vasant had also filed application for correction in revenue

record in respect of the said land. There were complaints made

by them against each other with the concerned police station.

On 28^th June, 2012 between 03.00 to 04.00 p.m. when

deceased Babu was sowing his filed, appellant-accused No.1

along with his associates formed unlawful assembly, picked up

quarrel with deceased Babu on account of removing weeds and

assaulted Babu with axe and wooden logs on his head and

back. In the said assault Babu sustained severe injuries. After

the incident neighbors and villagers came to the spot. Vishnu

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and Macchindra took Babu on motorcycle up to Bori and from

there Babu was taken to the government hospital in a pickup

vehicle. Mallikarjun-PW-1 who is brother of Babu lodged report

Exhibit 138 with Latur Rural Police Station and initially offence

came to be registered under Sections 307, 143, 147, 148, 149

of the Indian Penal Code and under Section 135 of the Bombay

Police Act. Attempt was made by Police to record statement of

Babu however he was found unfit to give statement. On the

same day at around 9.50 p.m. Babu died in hospital.

Thereafter offence punishable under Section 302 of the Indian

Penal Code came to be added against the accused.

Investigation was done and on completion of investigation

charge-sheet came to be filed before J.M.F.C. who in turn

committed the case for trial before the Sessions Court. Initially

trial commenced against Accused Nos. 1 to 16 and after

subsequent arrest of Accused Nos. 17 to 20, supplementary

charge-sheet was filed against them and both charge-sheets

were clubbed together. On conclusion of trial except Appellant

all other accused persons were acquitted.

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(SUBMISSIONS)

3.

At the outset learned counsel for the appellant

submitted that charge framed by the learned Trial Court is

defective as no particulars were mentioned therein specifying

his role in the incident of assault. It is submitted that due to

this appellant did not get fair opportunity to defend himself

and on this ground judgment in question does not sustain.

Learned counsel Mr. Ostwal for the appellant submitted that

there is no evidence on record to show that the appellant had

any dispute or enmity with deceased in order to provide

motive for him to commit offence in question. It is submitted

that admissions given by the witnesses particularly Vijaymala

(PW-9) and Mallikarjun (PW-1) show that the land belonging to

appel