Judgment

BY THE COURT [Per Hon’ble Mr. Justice Vinit Kumar Mathur]

1. The instant D.B. Criminal Appeal has been preferred by the accused-appellant Bapuda @ Laxman S/o Shri Pannaji, under Section 374(2) of the Code of Criminal Procedure assailing the validity of the judgment and order dated 03.06.2017 passed by learned Additional Sessions Judge Banswara, (hereinafter referred to as “the learned trial court”) in Sessions Case No. 119/2011, whereby the learned trial court convicted the accused-appellant for the offence punishable under Section 323, 326, and 302 of the Indian Penal Code and sentenced him as under:-

2. As per the prosecution case, on 12.10.2008, complainant Harish S/o Laxman, submitted an oral report at Mahatma Gandhi Hospital, Banswara, alleging therein that in the evening of the said day, he along with his father Laxman, uncles Vithla and Manohar, her mother Smt. Kali, aunt Ganga and his cousins Keshu and Devu S/o Rakma were present at their house. At about 8:00 PM, accused Bapuda @ Laxman S/o Puna, Bharat S/o Puna, Hakru S/o Lalu, Mohan S/o Lalu, Dhariya S/o Lalu, along with Sharma, brother-in-law of Hakru, and Kali, sister of Hakru, allegedly came there armed with swords, dhariyas and lathis. It was alleged that the accused persons stood in the courtyard and called out Laxman and Vithla to come outside. Upon this, the complainant party came out from the house and proceeded towards the canal culvert (Nahar Pulia) situated nearby. When the accused persons attempted to assault Vithla with a sword, he raised his right hand in order to ward off the blow, as a result whereof, his right hand got severed from the wrist. It was further alleged that accused-appellant Bapuda @ Laxman inflicted another blow upon the head of Laxman and thereafter Hakru and Mohan also dealt sword blows causing multiple injuries to both Laxman and Vithla. On account of the assault, the injured persons allegedly ran towards the nearby fields in order to save themselves. The complainant Harish stated that while running towards the culvert (Pulia), he noticed a police jeep approaching and after stopping the vehicle, informed the police personnel regarding the occurrence, whereupon the injured persons were taken to the hospital for treatment. Thus, owing to previous enmity, all the accused persons, in furtherance of their common intention and in conspiracy with one and another, being armed with deadly weapon-swords, attacked upon his father and uncle, caused grievous injuries to them, and severed/cut their hands with the intention to cause their death. It was a moonlit night, and since all the accused persons belonged to the same village and were well known to him, he clearly identified each of them. Accordingly, in the report it was prayed that appropriate legal action be taken against the accused persons in accordance with law.

3. On the basis of the said oral report (Ex.P.1), a formal FIR No. 473/2008 (Ex.P.31) was registered at Police Station Kotwali, District Banswara for the offences under Sections 323, 326, 307 and 149 of IPC and investigation was commenced. During treatment, the injured Vithla died and the charge for the offence under section 302 of IPC was also added.

4. After completion of investigation, the police submitted a charge-sheet against the accused-appellants for offences punishable under Sections 148, 149, 302, 307, 323 and 326 IPC before the Court of learned Chief Judicial Magistrate, Banswara