Cri.Appeal 598/2002
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 598 OF 2002
The State of Maharashtra
(through P.S.O. Tahsil Police
Station, Dhule) ..Appellant
Versus
1. Dilip Ratan Gaikwad,
Age 27 years, Occu. Labourer
2. Dinesh Nimba Gaikwad,
Age 18 years, Occu. Labourer
3. Gotu Uttam Gaikwad,
Age 23 years, Occu. Labourer
4. Rajendra Ratan Gaikwad,
Age 35 years, Occu. Labourer
5. Ratan Vitthal Gaikwad,
Age 65 years, Occu. Labourer
6. Bhaskar Manga Pawar,
Age 40 years, Occu. Labourer
[7] Dashrath Vitthal Gaikwad, } Appeal abated as against
Age 62 years, Occu. Labourer } Resp.no.7 as per Court's
} order dated 21.6.2007
8. Pintya Dashrath Gaikwad,
Age 19 years, Occu. Labourer
9. Himmat Pundlik Gaikwad,
Age 32 years, Occu. Labourer
10. Pintu Fakira Pawar,
Age 21 years, Occu. Labourer
11. Bapu Vitthal Gaikwad,
Age 45 years, Occu. Labourer
All R/o Village Shirud,
Tahsil/District Dhule .. Respondents
Mr V.S. Badakh, A.P.P. for appellant
Mr Dnyaneshwar Patil Advocate h/f Mr N.B. Suryawanshi, Advocate for
respondents no.1 to 6
Appeal abated as against Respondent no.7 as per Court's order dated
21.6.2007
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Cri.Appeal 598/2002
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CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ
DATE OF RESERVING
THE JUDGMENT : 15.11.2017
DATE OF PRONOUNCING
THE JUDGMENT : 07.12.2017
JUDGMENT (Per A.M.Dhavale, J.)
1. The State has preferred this appeal against the judgment delivered by II Additional Sessions Judge, Dhule on 15.6.2002 in Sessions Case No.100/2001, whereby respondents no.1 to 11 were acquitted of the offences punishable under Sections 147, 148, 447, 307 read with Sec 149 and 120 (B) of the Indian Penal Code.
2. The facts relevant for deciding this appeal may be stated as follows :
P.W.2 Pandurang is the injured witness and the informant. On 9.10.2000, at about 7.15 p.m., he was brought to Civil Hospital, Dhule in injured condition. P.W.14 Head Constable from Dhule police station visited the hospital and recorded his statement in the form of dying declaration. He has deposed that on receiving the message, he visited the hospital, obtained certificate of Medical Officer that the patient was stable to give the statement and recorded the statement as per say of Pandurang. It is at Exh.49. He has registered the F.I.R. and handed over the investigation to A.P.I. P.W.13 Patil. That time, P.W.2 Pandurang disclosed that he and his brother Bhausaheb - P.W.7 were having separate agricultural lands in Shirud hamlet, near ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 3 Dhamangaon road at Shirud. Accused no.6 Bhaskar was having his agricultural land near their lands. He was trying to create a right of cart way through the field of P.W.7 Bhausaheb. He was obstructed by P.W.7 Bhausaheb and P.W.2 Pandurang. Hence, accused no.6 Bhaskar had ill-feeling for them. On 9.10.2000 at about 4.00 p.m., P.W.2 Pandurang was grazing his bulls in his field. That time, all the eleven accused had arranged a meals party in the field of Bhausaheb. That time, accused no.6 Bhaskar came to him and accosted him, as to why he and his brother were obstructing his right of cart way. After verbal exchange and abusing accused no.6 Bhaskar brought all the accused to his field. Accused no.2 Dinesh inflicted blow of an axe on the skull of P.W.2 Pandurang. Accused no.3 Gotu and accused no.1 Deelip followed it with blows of the axe on both the legs below the knee. Accused no.4 Rajendra, accused no.8 Pintya and accused no.6 Bhaskar started assaulting P.W.2 Pandurang with stones on his abdomen, arm and back and the rest of the accused assaulted him with fist and kick blows and abused him in filthy language and intimidated him with threats of killing. The incident was witnessed by P.W.8 Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11 Laxman. They had rescued him and Laxman and one Bapu had taken him in a bullock-cart to his house. His son Pravin brought him to the hospital. The statement was read over to him and thereafter he admitted it to be correct and signed it and thereafter the same was registered as F.I.R. and crime was registered at C.R.No.351/2000. P.W.13 A.P.I. Prakash Patil carried out investigation in the case. He got the statement of P.W.2 Pandurang recorded through Executive Magistrate. He drew spot panchnama and collected blood mixed soil and blood ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 4 stained leaves, one stick and one handkerchief from the spot. All the accused were arrested on the same day. During custody, accused nos.1, 2 and 3 made voluntary statement and discovered the axes used as weapon of offence which were seized by drawing memorandum and panchnama. He recorded statements of material witnesses, collected medical evidence, seized muddemal articles. He also seized clothes of the injured witness. After completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate, Dhule. In due course, the case was committed to the Court of Sessions. The learned Additional Sessions Judge framed charge at Exh.32. The accused pleaded not guilty. Prosecution examined 13 witnesses. The learned Additional Sessions Judge did not find the evidence fully convincing and reliable. Hence, the accused were acquitted. Hence this appeal.
3. During the pendency of appeal, respondent no.7 - Dashrath has expired and the appeal stands abated against him.
4. Learned A.P.P. submitted that the evidence of P.W.2 Pandurang is cogent, consistent and reliable. It is consistent with his F.I.R. lodged promptly. His evidence is well corroborated by medical evidence and is also supported by P.W.12 Asha and P.W.7 Bhausaheb. The clothes of the deceased were stained with blood. He fairly submitted that the panchas to the discovery P.W.5 Abdul Majeed and P.W.6 Shaikh Rasheed and the eye witnesses P.W.8 Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11 Laxman have turned hostile and their evidence is not supporting to the prosecution, but he submitted that the remaining evidence was sufficient to hold the accused guilty. ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 :::
Cri.Appeal 598/2002 5
5. Per contra, learned Advocate Mr Dnyaneshwar Patil holding for Mr N.B.Suryawanshi for the respondents argued that the main witnesses. P.W.8 Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11 Laxman shown as eye witnesses in the F.I.R. have turned hostile. The discoveries allegedly made in presence of P.W.5 Shaikh Majeed and P.W.6 Shaikh Rasheed are not supported by them. The weapons were not having any blood stains. There is delay in lodging the F.I.R. The injury certificate shows two contused lacerated wound on parietal region, two lacerations on the legs, one bruise on the abdomen and three swellings. These are not possible by the weapons disclosed in the evidence and in the manner in which P.W.2 Pandurang had described the assault. He submitted that the Tahsildar has passed order admitting the claim of accused no.6 Bhaskar about right of way through the field of P.W.7 Bhausaheb. The evidence of P.W.7 Bhausaheb and P.W.12 Ashabai is not trustworthy and reliable. The accused had differences with P.W.7 Bhausaheb and not with P.W.2 Pandurang. The learned trial Judge has properly appreciated the material and has rightly held that the evidence is not free from reasonable doubt. The view taken by the learned trial Judge is probable view and in the appellate jurisdiction, the same should not be interfered with.
6. In the alternative, it is prayed that the injuries disclosed are not serious and the offence under Section 307 of the Indian Penal Code is certainly not disclosed.
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Cri.Appeal 598/2002 6
7. The points for consideration with our findings are as follows :
(I) Whether it is proved that accused
nos.1 to 11 formed an unlawful
assembly with a common object
to assault P.W.2 Pandurang with
deadly weapons and used criminal
force ? .. Not proved
(II) Whether accused nos.1, 2 and 3,
while being members of unlawful
assembly were armed with deadly
weapons ? .. Not proved
(III) Whether accused nos.1 to 11 in .. Partly in the
furtherance of their common object affirmative. It is
of assembly voluntarily caused proved that
grievous hurt and attempted to accused 1, 2 & 3
cause murder of P.W.2 Pandurang? and 6 in
furtherance of their
common intention
voluntarily
caused grievous
hurt to P.W.2
Pandurang by
means of sticks &
some sharp
weapons.
(IV) Whether any interference is .. In the affirmative.
necessary in the order of Accused nos.1, 2,3
acquittal ? & 6 are held guilty
for offence
punishable under
Section 326 read
with 34 of I.P.C.
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Cri.Appeal 598/2002
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- REASONS -
8. The material evidence in this case is of P.W.2 Pandurang, the injured witness. Eye witness P.W.12 Asha, P.W.1 Dr. Sameer Desale and spot panch P.W.3 Deelip.
9. The prosecution examined total thirteen witnesses. Out of which following witnesses have turned hostile. P.W.4 - Gajanan, panch to the seizure of clothes of P.W.2 Pandurang P.W.5 Abdul Majeed, P.W.6 Abdul Rasheed, panchas to the discovery of weapons by accused nos.1, 2, 3 (turned hostile) P.W.8, Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11 Laxman, eye witnesses, turned hostile.
10. P.W.7 Bhausaheb is brother of P.W.2 Pandurang.
11. Since P.W.2 Pandurang is the injured eye witness, his evidence has to be considered as most material. If his evidence is found cogent, consistent and reliable, it can be relied upon, but if it is found to be not so consistent, one may look for corroboration. The evidence shows as follows :
(I) There was no previous enmity between P.W.2 Pandurang and the accused persons. There was dispute between accused no.6 Bhaskar and P.W.2's brother P.W.7 Bhausaheb. Accused no.6 Bhaskar was claiming right of cart way through the field of Bhausaheb, which P.W.7 Bhausaheb was denying. There is admission of P.W.7 ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 8 Bhausaheb that Tahsildar had given permission to accused no.6 Bhaskar to go to his land through his land. He had preferred appeal before the Collector, but the same was dismissed. It is not clear whether these events took place before the incident or after the incident, but one thing is certain that P.W.7 Bhausaheb was opposing accused no.6 for going to his field through his field. P.W.2 Pandurang being brother of P.W.7 Bhausaheb, accused no.6 was having some grudge against him. It is the evidence that P.W.7 Bhausaheb and P.W.2 Pandurang are separate in residence and property. (II) It is certain that accused no.6 Bhaskar could have more grudge against P.W.7 Bhausaheb and, therefore, if he wanted to assault anybody, P.W.7 Bhausaheb would have been the priority. P.W.7 Bhausaehb stated that on 9.10.2000 at 10.00 a.m., he and his wife and daughter were working in the field. That time, accused no.6 Bhaskar was holding a wet party in his field. Accused no.6 Bhaskar and accused no.4 Rajendra came to his field and threatened him with life and returned to join the party. Then, P.W.7 Bhausaheb told P.W.10 Bharat Pardhi, boy aged 12 years to report this fact to P.W.2 Pandurang so as to caution him. P.W.7 Bhausaheb further deposed that he had sent his wife and daughter to give this information to P.W.2 Pandurang. P.W.2 Pandurang does not state that he received such information. P.W.7 Bhausaheb stated that he had seen the accused persons proceeding to the field of Pandurang with sticks and axes in their hands. The entire evidence of P.W.7 Bhausaheb is not reliable and is unnatural. In the first place, accused no.6 Bhaskar would have assaulted P.W.7 Bhausaheb and would not have given a ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 9 mere threat to him as his main enmity was with P.W.7 Bhausaheb. Secondly, the said incident took place at 10.00 a.m. whereas the assault on Pandurang took place at 4.00 pm. If P.W.7 Bhausaheb would have sent message to P.W.2 Pandurang, he would have received it quite early and he would not have been in his field. Besides, P.W.7 Bhausaheb has not reported the matter to the police nor made any preparation to protect his brother. We, therefore, find that the entire evidence of P.W.7 Bhausaheb is untrustworthy and unreliable and it deserves to be discarded.
(III) P.W.12 Asha is wife of P.W.7 Bhausaheb, who is brother of P.W.2 Pandurang. She has deposed as per the evidence of P.W.7 Bhausaheb. She deposed that the accused were holding a wet party in the field of Bhaskar. That time, her husband was near a well in their field. She deposed that accused no.6 Bhaskar, accused no.4 Rajendra came to him and threatened him that he would not be left alive on that day. She stated that her husband was frightened and disclosed these threats to her and went home. Her husband had sent P.W.10 Bharat Pardhi to P.W.2 Pandurang to caution him. Then she had gone to the field of P.W.2 Pandurang and saw accused no.1 Deelip, accused no.4, Rajendra, accused no.3 Gotu arrived in the field of P.W.2 Pandurang with axe and sticks. They abused P.W.2 Pandurang who was grazing his bulls. At that time they assaulted him with axe and sticks on head, abdomen, shin. She stated that Laxman and Bharat had intervened and rescued the complainant. We find her evidence not convincing. Her name is not there in F.I.R. though four names of eye witnesses were given in F.I.R. Her conduct of not reporting the ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 10 threats to P.W.2 Pandurang well in advance is not consistent with her relationship with P.W.2 Pandurang. Her evidence against the accused is vague. She did not disclose which accused assaulted first and with what weapon and who assaulted later. We find it unsafe to rely on her evidence.
(IV) As per evidence of P.W.2 Pandurang, on the fateful day, he was grazing his bulls in his field and saw that the accused were enjoying a party in the field of accused no.6 Bhaskar. He stated that he had been to the field in noon hours and after sometime, the accused came to his field with sticks, axes, lathis and iron bar. Accused no.6 Bhaskar accosted him, why his brother was obstructing his right of way through his field. P.W.2 Pandurang replied him that he was not concerned as he was having his own field separate from his brother, still the accused started assaulting him. Accused no.2 Dinesh gave the axe blows on the leg, head and hand of P.W.2 Pandurang. Accused no.3 Gajanan gave blows of iron bar on his legs and hands. Accused no.1 Deelip assaulted him with sticks and rest of the accused assaulted him with kick and fist blows. He was rescued by Laxman, Subhash, Ananda, Asha and Rekhabai. P.W.8 Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11 Laxman are eye witnesses. They were examined. All of them have turned hostile. The names of Asha and Rekhabai were not disclosed in the F.I.R.
(V) P.W.1 Dr. Sameer Desale supports the evidence of P.W.2 Pandurang. He deposed that while he was working as Medical Officer at Civil Hospital, Dhule, P.W.2 Pandurang was brought to his hospital ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 11 at 7.15 p.m. on 9.10.2000. He gave history of assault at 4.30 p.m. at Shirud by hard and blunt objects. There was also history of unconsciousness for half an hour. Pandurang was unconscious for sometime, he must have required sometime to reach Civil Hospital, Dhule from Shirud and considering the gravity of his injuries, his priority would have been to receive the medical aid to save his life. In the light of the facts, the F.I.R. lodged at 9.30 p.m. is quite prompt. The evidence of P.W.2 Pandurang is well supported by medical evidence which shows that he had sustained seven injuries. In the light of these facts, the learned trial Judge should have believed P.W. 2 Pandurang. P.W.1 Dr. Sameer Desale found following injuries on his person :
(1) CLW on parietal region right side of size 1.6 cm x 1 cm (2) CLW on left side parietal region size 5 cm 1 cm (3) Pain/swelling/tenderness on 1/3 left forearm near wrist joint (4) Bruise on abdomen right iliac region (5) Lacerated wound right lower leg 3 cm x 1 cm, 2 cm x 1 cm (6) Lacerated left lower leg 2 cm x 1 cm (7) pain/swelling/tenderness present on left thigh
He deposed that all the injuries were caused within 24 hours and by hard and blunt object. Injury nos.3 and 8 were grievous in nature. He had given intimation to the police and suspected fracture on wrist. He had obtained X-rays and referred the patient for orthopedic treatment to the surgeon for head surgery. His medical certificate is at Exh.46 and provisional certificate at Exh.47. ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 :::
Cri.Appeal 598/2002 12 The injury certificate shows two contused lacerated wounds on parietal region, two lacerated wounds on legs. One swelling on left thigh, two swellings on right wrist and left forearm and one bruise on abdomen. He had referred the patient for X-rays and after watching the X-rays he gave certificate that there was fracture of tibia fibula and fracture of right middle third bil-colles. The certificate of doctor that the injuries were sufficient in ordinary course of nature to cause death cannot be accepted in the light of nature of injuries. Though there are two injuries on parietal region, no depth has been shown to those contused lacerated wounds. The two fractures on the wrist or upper forearm cannot be dangerous to life. Therefore, we find that the injuries sustained by P.W.2 - Pandurang were grievous, but were not dangerous to life.
(VI) There is corroborative evidence of spot panch P.W.3 Deelip. He deposed that on the next day of the F.I.R., the police had drawn spot panchnama in the field of P.W.2 Pandurang which was attended by him. He saw torn pieces of baniyan, stick, traces of blood, white handkerchief, blood stained leaves of jawar crop. He is adjacent field owner. He has proved panchnama Exh.51 and the seized muddemal articles, Articles 1 to 7.
(VII) P.W.13 A.P.I. Patil has deposed about seizure of various articles and about discovery of weapons by accused nos.1 to 3. The panch to the discovery, P.W.5 Shaikh Majeed and P.W.6 Shaikh Rasheed have turned hostile. The evidence of P.W.13 A.P.I. Patil on the point of discoveries is not specific, as required under Section 27 of the ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 13 Evidence Act. He had forwarded the seized articles including the weapons to Chemical Analyst and the chemical analysis reports received by him are at Exhs.66 to 69. Those reports do not disclose any blood stains on the weapons. We, therefore, hold that the discoveries of weapons at the hands of accused are not proved.
12. It is true that in preset case, the independent witnesses P.W.8 Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11 Laxman have turned hostile. Discoveries of weapons by the accused are not proved, however, we find that P.W.2 Pandurang is injured witness. He has no previous enmity of whatsoever nature against the accused. He has deposed consistently with his F.I.R. Exh.49. He was injured at about 4.30 p.m. and was brought to the Civil Hospital, Dhule at 7.15 p.m. His F.I.R. was recorded in the Civil Hospital at 9.30 p.m.
13. It is now-a-days found that even when somebody is assaulted or some offence is committed against somebody, he is reluctant to go to police station to lodge the F.I.R. Therefore, when somebody lodges the F.I.R. and goes before the Court and deposes on oath and his evidence is found to be consistent with the promptly lodged F.I.R. by him and is well supported by medical evidence, the Judge should proceed with assumption that he is telling the truth unless there are suspicious circumstances to create a reasonable doubt about his truthfulness of the statement.
14. It is common knowledge that the people sometimes make exaggerations with regard to nature of injuries, number of injuries or ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 14 the number of offenders. If the substratum of the evidence is substantially different from the prosecution case, or when there is deliberate attempt to falsely implicate some person or the exaggeration of nature of injuries is out of proportion, the Judge may be justified in disbelieving such witness or believing only partly subject to corroboration from independent witnesses. But, in the present case, we find that the skeleton of the evidence given by P.W.2 Pandurang is consistent with the prosecution case, as disclosed in the F.I.R. promptly lodged by P.W.2 Pandurang and is well supported by medical evidence. In the circumstances, notwithstanding the fact that P.W.8 to P.W.11, eye witnesses have turned hostile, we find no reason to disbelieve P.W.2 Pandurang. We find that learned trial Judge has given undue importance to the untrustworthy nature of evidence of P.W.7 Bhausaheb and P.W.12 Asha and we have already discarded their evidence, however, it will not have adverse effect on the evidence of P.W.2 Pandurang, which is otherwise trustworthy and reliable.
15. We find that P.W.2 Pandurang has made some exaggerations. If eleven accused would have assaulted him with axe, iron bar and sticks, there would have been large number of injuries on his person, but it is certain that some accused have assaulted him with some weapons, which caused eight injuries to him. He has given specific evidence against accused no.3 Gotu, accused no.2 Dinesh and accused no.1 Deelip. There is also specific evidence against accused no.6 Bhaskar at whose instigation that took place. He had first came to him and accosted him with regard to right of way and about ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 15 obstruction by him and his brother. As far as evidence of rest of the accused is concerned, it is not specific and looking to the evidence of all witnesses, other accused deserve to get benefit of doubt, but we find that the evidence against accused no.1,2, 3 and 6 was sufficient to hold them guilty for causing injuries to P.W.2 Pandurang.
16. However, evidence of P.W.2 Pandurang supported by medical evidence in the form of injury certificate Exh.46 and promptly lodged F.I.R. Exh.49 is reliable and trustworthy. The learned trial Judge has not given much importance to find out whether the evidence of P.W.2 Pandurang is reliable, cogent and consistent or not.
17. In State of U.P. Vs. Hari Mohan, AIR 2001 SC 142, it is observed :
"7. While appreciating the ocular testimony of witnesses and the circumstantial evidence in a criminal case, the criminal courts are expected to keep in mind the observations of this Court in State of Punjab v. Jagbir Singh, Baljit Singh & Karam Singh [1974 (3) SCC 277] wherein it was held:
" A criminal trial is not like a fairy tale wherein one is free to give fight to ones imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 16 by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
8. This Court again in State of Himachal Pradesh v. Lekh Raj & Sons [JT 1999 (9) SC 43] reiterated the position of law and while reminding the criminal courts of their obligations held:
"The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper-technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper- technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian thought but have to be considered as part ::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 ::: Cri.Appeal 598/2002 17 and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind."
9. Before appreciating the circumstantial evidence in the case, we are at pain to place on record our displeasure regarding the conduct of the investigation in the case. The investigating officer appears to have left no stone unturned to help the accused-respondents. It appears that the valuable evidence, though available, was not collected apparently for ulterior purposes. The conduct of the investigating officer SI D.P. Tiwari (PW7) was even noticed by the trial court. On 30th October, 1978 while recording his statement, the trial court observed that "it appears that the IO was negligent and an irresponsible investigating officer". It was noticed that "the witness giving aforesaid statement and it appears that he wants to damage the prosecution case". It is not disputed that during investigation it had come in evidence that respondent No.1 was possessed of a licensed gun which was stated to have been used by him on 15.3.1977, the alleged day of occurrence, yet no effort was made by the IO to seize the gun or get it examined by an expert to ascertain whether any shot was fired from its barrel. He also failed to have taken into custody the letter written by the deceased for a sufficiently long period though its mention was made by the PW1 in the FIR itself. However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. It is unfortunate that no action can be taken against the IO at this stage who, in all probabilities, must have retired by now.::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 :::
Cri.Appeal 598/2002 18
18. The view taken by the learned trial Judge is not reasonable and probable view. We, therefore, rely on the evidence of P.W.2 Pandurang to hold accused nos. 1 to 3 and accused no.6 Bhaskar guilty for committing assault on P.W.2 Pandurang by means of iron bars and some other weapons and thereby causing grievous hurts. We, therefore, hold accused no.1 Deelip Ratan Gaikwad, accused no.2 Dinesh Nimba Gaikwad, accused no.3 Gotu Uttam Gaikwad and accused no.6 Bhaskar Pawar guilty for offence punishable under Section 326 read with Sec.34 of Indian Penal Code.
19. At this point, it is necessary to hear the accused on the point of sentence. Hence, we pass the following order:
- ORDER -
(I) The appeal is partly allowed. (II) The appeal against accused nos.4, 5, 7, 8, 9, 10 and 11 is
dismissed. Acquittal of accused nos.1,2,3 and 6 is set aside. (III) Accused no.1 Deelip Ratan Gaikwad, accused no.2 Dinesh Nimba Gaikwad, accused no.3 Gotu Uttam Gaikwad and accused no.6 Bhaskar Pawar are held guilty for offence punishable under Section 326 read with Sec.34 of Indian Penal Code. Their bail bonds are forfeited.
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Cri.Appeal 598/2002 19 (IV) The concerned Police Station Officer is directed to produce accused no.1 Deelip Ratan Gaikwad, accused no.2 Dinesh Nimba Gaikwad, accused no.3 Gotu Uttam Gaikwad and accused no.6 Bhaskar Pawar before us for hearing on the point of sentence. Learned defence Counsel is also directed to ask them to appear before us on 18th December 2017.
( A.M. DHAVALE, J.) ( T.V. NALAWADE, J.)
vvr
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