1

CRI-APEAL 352.99 n 414.99

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD.

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 352 OF 1999

Sunil s/o Khanderao Gaikwad,

Age 21 years, Student,

R/o. Near Bus Stand Kalam,

Tal. Kalam, District Osmanabad.

... APPELLANT

(Original Accused No.1)

V E R S U S

1.

The State of Maharashtra,

( Copy to be served on the

Public Prosecutor, High Court

of Judicature of Bombay,

Bench at Aurangabad. )

2.

Shri Dattatraya Devidas Gaikwad,

Major, Occ. Agriculturist,

R/o. Kalam, Tal. Kalam,

Dist. Osmanabad.

... RESPONDENTS

-----

Mr. S.P.Katneshwarkar, Advocate for the Appellant.

Mr. V.H.Dighe, Additional Public Prosecutor for Respondent No.1 / State Authority.

Mr. Ajay Deshpande, Advocate for Respondent No.2.

-----

A N D

CRIMINAL APPEAL NO. 414 OF 1999

The State of Maharashtra,

(Through Kallam Police Station,

Dist. Osmanabad. )

... APPELLANT

(Original Complainant)

2

CRI-APEAL 352.99 n 414.99

V E R S U S

1.

Sunil Khanderao Gaikwad,

Age : 20 yrs.

2

Lahu Mahadeo Parve,

Age : 20 yrs,

Both R/o. Kallam,

Tq. and Dist. Osmanabad.

... RESPONDENTS

-----

Mr. V.H.Dighe, Additional Public Prosecutor for the Appellant / State Authority.

Mr. S.P.Katneshwarkar, Advocate for the Respondent No.1.

Mr. A.B.Tele, Advocate for Respondent No.2.

-----

CORAM :

NARESH H. PATIL and

A.V.NIRGUDE, JJ.

DATE ON WHICH SUBMISSIONS ARE HEARD

: 26

th March, 2013.

DATE ON WHICH JUDGMENT IS PRONOUNCED : 15

th April, 2013.

JUDGMENT: [ PER A.V.NIRGUDE, J. ]

1

Both these appeals arise from the judgment and order dated

1

st September, 1999 passed by the learned Additional Sessions Judge,

Osmanabad in Sessions Case No.41 of 1999.

2

The parties to the appeals would be referred to as their

original designation before the trial Court. The sessions case was filed

against two accused. They were charged under Section 302 and 307 read

3

CRI-APEAL 352.99 n 414.99

with Section 34 of the Indian Penal Code. The learned Judge of the trial

Court vide impugned judgment held that Accused No.1 was guilty of

offence punishable under Section 304 Part II of the Indian Penal Code and

sentenced him to Rigorous Imprisonment for five years and to pay a fine of

Rs.5,000/- with a default clause. The learned Sessions Judge found

Accused No.2 guilty under Section 324 of the Indian Penal Code and

sentenced him to suffer one year Rigorous Imprisonment and to pay a fine

of Rs.2,000/- with default clause. The learned Sessions Judge acquitted

both the accused for the offence punishable under Sections 302 and 307

read with Section 34 of the Indian Penal Code.

3

On one hand, Accused No.1 – Sunil filed Criminal Appeal No.

352 of 1999 challenging his conviction under Section 304 Part II of the

Indian Penal Code and on the other hand, the State of Maharashtra filed

Criminal Appeal No.414 of 1999 challenging the acquittal of both the

accused.

4

The facts of the prosecution case, in short, can be stated as

under:

The incident took place on 22

nd September, 1998 at

Kallam, District Osmanabad. On that day, at about 05:30 am, PW-5 Jwala

alongwith PW-4 Mirza went to the Zilla Parishad ground for exercise.

Accused No.1 came there and told them not to use the school ground for

exercise after 06:00 am because he was conducting his Karate training

class there. Thereupon, PW-4 Mirza assaulted Accused No.1. In

4

CRI-APEAL 352.99 n 414.99

retaliation, Accused No.1 assaulted him. PW-5 Jwala and one Kishor

separated this scuffle. Soon thereafter, PW-4 and 5 went to the house of

Sachin, the victim in this case, and narrated him the entire incident. Then

Sachin and PW-4 and 5 went towards Rangila Chowk in Kallam town. The

accused duo came to them from behind and challenged Sachin and the

witnesses that they would test, who is physically more powerful by holding

a Karate match out side the town. Apparently, Sachin and his companions,

PW-4 and 5 accepted thi