apeal556of02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.556 OF 2002
1 Sunil s/o. Ramesh Wahurwagh,
aged about 25 years,
2 Raju s/o. Shriram Wahurwagh,
aged about 24 years,
3 Arvind s/o. Shantaram Wahurwagh,
aged about 22 years,
All r/o. Kanshivni,
Tahsil & District Akola. ...APPELLANTS
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer
Borgaon Manju, District Akola. ...RESPONDENT
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Mr.R.M. Daga, counsel for the Appellants.
Mr. H.R. Dhumale, Additional Public Prosecutor for
Respondent /State.
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CORAM:
ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 19.09.2017
DATE OF PRONOUNCING THE JUDGMENT : 20.12.2017
JUDGMENT:
The appellants (hereinafter referred to as "the ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 2 accused") are aggrieved by the judgment and order dated 7.10.2002 passed by the 2nd Additional Sessions Judge, Akola, in Sessions Trial 227 of 2001, by and under which, the accused are convicted of offence punishable under section 325 of the Indian Penal Code ("IPC" for short), and are sentenced to suffer rigorous imprisonment for 5 years and to payment of fine of Rs.500/-. 2 Heard Shri. R.M. Daga, the learned counsel for the accused and Shri. H.R. Dhumale, the learned Additional Public Prosecutor for the respondent / State.
3 The case of the prosecution as is unfolded during the course of trial is thus:
The accused and one Mukunda Sahdeo Jadhav (arrayed as accused in the trial who is acquitted by the learned Sessions Judge) and the complainant Santosh Waghmare are residents of Kanshivni.
On the fateful day, i.e. on 19.8.2001, at 7.30 p.m. the complainant Santosh Waghmare was at home and his brother Arun Waghmare was working in the field. Arun finished his work and while returning home went to the house of accused Sunil and confronted him about the trespass of cow in the field and ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 3 altercation ensued. On hearing the commotion, the complainant Santosh and his sister Rekha rushed to the spot which concededly is near the house of accused Sunil. Complainant Santosh and Rekha saw accused Sunil and Raju assaulting Arun with pipes and accused Arvind and Mukunda assaulting Arun with sticks. Complainant Santosh intervened in the quarrel and was assaulted by accused Sunil and Raju on hand, leg and back. Accused Sunil and Raju also shoved Rekha aside when she attempted to intervene in the altercation. Arun suffered injuries on head and stomach. He was taken to Borgaon Manju Police Station and then to the Akola hospital. Santosh lodged report at Borgaon Manju Police Station (Exh. 52). The Borgaon Manju police initially registered offence punishable under section 325 read with section 34 of IPC on the basis of the report lodged by Santosh and consequent to the death of Arun on 20.8.2001, offence under section 302 read with section 34 of IPC was additionally registered. Upon completion of the investigation, chargesheet was submitted in the Court of the Chief Judicial Magistrate, Akola, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge under section 302, 325 read with section 34 of IPC. The accused abjured guilt and claimed to be tried.
::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 4 4 The prosecution inter-alia relied on the evidence of PW 1 - Santosh Waghmare (complainant), PW 2 - Pralhad Shivankar, PW 3 - Rekha Thakare and PW 8 - Dnyaneshwar Raut who were examined as eye witnesses. PW 5 - Dr. Mohokar, who conducted the post mortem is examined to prove post mortem report Exh. 62. PW 6 - Ramchandra Wankhede who is examined to prove the recovery of weapons from the accused did not support the prosecution. PW - 9 is the Investigating Officer. 5 The defence admitted preliminary report about the incident Exh. 15, spot panchanama Exh. 16, inquest Exh. 17, report to Medical Officer in proforma, panchanama of seizure of clothes of deceased Exh. 19, invoice challan Exh. 20 and 21, duty pass to constable Sharif Hussain b.No. 1411 Exh. 22, covering letter to C.A. dated 9.9.2001 by PSI Borgaon Manju Exh 24 and 25, requisition to Tahsildar for drawing the sketch of scene of occurrence Exh. 27, the sketch of scene of occurrence Exh. 28, the injury form of deceased Arun Waghmare at Exh. 29, the report by police constable to PSI, Borgaon Manju about taking injured Arun and complainant Santosh for medical examination, the extract of OPD Police information book Exh. 31, the request letter by PSI for taking blood sample of the deceased Exh. 32, the receipt of dead ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 5 body given to relatives Exh. 34, summons under sec. 174 of Cr. P.C. to the relatives Exh. 35 and 36, duty pass Exh. 37, P.M. report, blood sample and clothes of deceased, duty pass to constable Vishwanath B. No. 1 by PSI - Rathod for collecting X-ray report, injury form of Santosh Exh. 42, duty pass to constable Rafiq Hussain B. No. 1411 Exh. 45 and Medical certificate of Santosh Exh. 77.
6 The defence as is discernible from the tenor of the cross-examination and the statement recorded under section 313 of the Code of Criminal Procedure, is of total denial and false implication. The learned Sessions Judge was pleased to acquit Mukunda Jadhav and to convict the other accused as aforestated. 7 Shri. R.M. Daga, the learned counsel for accused submits that the judgment and order impugned is against the weight of evidence on record. The marshalling of evidence on record is flawed, is the submission. The submission, which is in the alternate, is that in view of the acquittal of accused Mukunda Jadhav, and the fact that it is not possible to ascertain as to who inflicted the fatal blow, the accused could have at the most been convicted of offence punishable under section 323 are 324 of IPC. ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 6 8 Per contra, Shri. H.R. Dhumale, the learned Additional Public Prosecutor supports the judgment and order impugned. The submission of the learned APP is that there is no infirmity whatsoever either in the marshalling of evidence or the finding recorded.
9 The post mortem report Exh. 62 opines that the death was due to haemorragic shock as a result of lacerated wounds over the visceral part of spleen. The post mortem report Exh. 62 refers to the following injuries:
(i) Abraded contusion of size 4 cms x 4 cms over right arm outer aspect middle 1/3rd.
(ii) Abrasion over left elbow 1 cm x 1 cm over posterior aspect.
(iii) Abrasion over left knee joint, anterior aspect of size 1 cm x 1 cm.
(iv) Lacerated wound of about 2 cms x 2 cms x 1cm over 4 cm below the right west and 2 cms behind the anterior superior than spleen.
(v) Abraded contusions two in number each of about 4 cm x 0.5 cm, over left side of abdomen, occupying the left hypochondriac and left lumber region.
(vi) Abraded contusion 6 cms x 3 cms over right crest
(vii) Contusion over left side of chest laterally in the region ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 7 between 9th rib posterior and 11th rib anterior size of 15 cms x 4 cms
(viii) No fracture palpable.
PW 5 - Dr. Mohokar who conducted the autopsy on the body of deceased Arun Waghmare has deposed that the injuries are possible by sticks and iron pipes produced in the court. In the cross-examination, PW 5 admits that except injury 7, the other injuries are superficial. PW 5 denies the suggestion that injury 7 is possible due to fall, although, he admits that injuries 1 to 6 may be possible due to fall.
10 The complainant - Santosh Waghmare who is examined as PW 1 has deposed that on hearing the commotion, he and his sister Rekha rushed to the spot of the altercation near the house of accused Sunil. Accused Sunil and Raju were assaulting the deceased Arun with pipe and accused Arvind and Mukunda were assaulting the deceased Arun with sticks. PW 1 states that when he intervened, he was assaulted by accused Sunil and Raju on hand, leg and back by pipe and his sister was shoved when she attempted to intervene. It is extracted in the cross-examination that when PW 1 rushed the scene of ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 8 occurrence, Arun was lying on the spot. It is further elicited in the cross-examination that the travelling time from the residence of the witness to the spot of occurrence is 10 minutes and that PW 1 reached the spot first and Rekha followed. It is further brought on record that the police made inquiries with the deceased Arun and reduced to writing the report lodged by Arun.
It is suggested to the witness that the deceased Arun had consumed liquor and had quarreled with some persons since the morning. It is further suggested that in his report Arun alleged that 10-11 persons assaulted him. It is admitted that PW 1 did not name Mukunda in the report. Certain omissions are also brought on record including the statement that the accused pushed Rekha.
11 PW 2 - Pralhad states that when he was searching for his cow on 19.8.2001 between 7.00 pm to 7.30 pm, he was a witness to exchange of words between accused Raju and deceased Arun. He states that he pacified them, however, again there was a verbal altercation, accused Raju went to the house of accused Arvind and returned armed with pipes, accused 1 Sunil followed, accused Arvind and Mukunda also arrived at the spot and all of them assaulted Arun. Pralhad states that accused Sunil and Raju ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 9 were armed with pipes and accused Arvind and Mukunda were armed with sticks.
The said witness has deposed that complainant Santosh and Rekha came to the spot after Arun fell on the ground. In the cross-examination, he, in an obvious exaggeration states that the physical assault went on for 30 to 45 minutes, many neighbours gathered on the spot, is the deposition. It is elicited in the cross-examination of Pralhad that the statement of complainant and Santosh was recorded in his presence and then the police asked the witness Pralhad to give statement like that of Santosh. 12 Rekha Thakare, the sister of the complainant and the deceased is examined as PW 3. Her presence on the spot is disbelieved by the learned Sessions Judge, and rightly so. It is elicited in the cross-examination that Rekha reached the spot 10 to 15 minutes after hearing the commotion and when she reached the spot Arun was lying on the ground in an injured condition. She has deposed that when she reached the spot the complainant Santosh was being assaulted by accused with pipes and that assault went for 10 to 15 minutes.
13 Laxmi Thakare - PW 4 is examined to prove that ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 10 accused 1 Sunil owned cattle. Ramchandra Wankhede - PW 6 who is examined to prove the discovery of the sticks and pipes at the instance of the accused Mukunda, Raju, Sunil and Arvind did not support the prosecution. It is extracted in the cross- examination, that PW 6 has signed on the respective memorandums under section 27 of the Evidence Act. PW 7- Sudhakar Patil, who was then in-charge of the station diary has registered crime under section 302 read with section 34 of IPC. In the cross-examination, PW 7 admits that he inquired from Arun about the incident. The witness, however, states that he did not reduce the report to writing and denies the suggestion that deceased Arun did not disclose the names of assailants. He admits that the names of accused Arvind and Mukunda are not disclosed in the report lodged by the complainant Santosh. Dnyaneshwar Raut - PW 8 is examined as eye witness. He has corroborated the version of witness Pralhad that there was a verbal altercation between deceased Arun and Raju, Sunil and Arvind and that Pralhad intervened in the altercation. PW 8 - Dnyaneshwar then states that he heard hue and cry and came out of house and on coming out of house witnessed Arun being assaulted by accused Sunil and Raju with pipes. The witness states that accused Arvind and Mukunda were armed with sticks. The witness further does ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 11 not depose that accused Arvinda and Mukunda were participants in the assault. The witness states that when Rekha and Santosh arrived on the spot, Arun was lying on the ground. This witness does not corroborated the version of the complainant Santosh and Rekha that accused assaulted Santosh or pushed Rekha.
In the cross-examination, the witness admits that when he reached the scene of occurrence, deceased Arun was laying on the ground and that the physical altercation with the complainant Santosh did not take place in his presence. PW 9 - Hanuman Rathod is the Investigating Officer.
14 I have already noted supra that the learned Sessions Judge has held that the evidence of PW 3 Rekha that she witnessed the assault is suspect. Her evidence is appreciated by the learned Sessions Judge thus:
"Then comes the evidence of P.W.3 Rekha. She admittedly went to the scene of occurrence after P.W.1 left the house. According to her she went within 10 to 15 minutes on hearing cries. She stated that when she reached there no body was present. On perusal of the testimony of P.W.3 it can be said that she went to the spot after everything was over and she is deposing merely because she is sister of deceased. Though she stated about the injuries to complainant and deceased, it can be said that she is not the eye witness to the incident. The fact that her name does not appear in the F.I.R. So also the act of pushing her by the accused, is not appearing, leads to the inference of she being not the eye witness".
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I am in agreement with the finding recorded that PW 3 Rekha is not likely to have witnessed the assault. PW 2 - Pralhad Shivankar and PW 8 - Dnyaneshwar Raut are independent witnesses. Shri M.R. Daga, the learned counsel for the accused is vehement in criticizing the evidence of PW 2 Pralhad since he admits that he was asked by the police to give statement like the statement given by the complainant Santosh. The said witness, has indulged in an obvious exaggeration, is the further submission. The learned counsel for the accused is justified in contending that the evidence of Pralhad must be closely scrutinized. The version that the physical assault went on for 30 to 45 minutes, is obviously exaggeration and embellishment. This version is inconsistent with the medical evidence. PW 5 - Dr. Mohokar admits that injury 1 to 6 suffered by the deceased Arun were superficial and the only serious injury was injury 7 which damaged the spleen. The medical evidence excludes the possibility of a concerted assault by four persons armed with pipes and sticks for 30 to 45 minutes. However, the evidence of PW 2 - Pralhad Shivankar can not be discarded altogether. The chaff must be separated from the grain. The evidence that he witnessed the verbal altercation, separated, pacified deceased and the accused, is corroborated by PW 8 - Dnyaneshwar Raut. ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 13 The evidence of PW 8 - Dnyaneshwar is trustworthy to the extend he has corroborated the version of Pralhad that there was a verbal altercation between deceased Arun, accused Raju, Sunil and Arvind and that PW 2 - Pralhad intervened. PW 8 - Dnyaneshwar Raut has indeed deposed that he witnessed Arun being assaulted by accused Sunil and Raju with pipes. The witness, however, has not attributed any direct role in the assault to accused Arvind and accused Mukunda, although, the witness states that they were armed with sticks. Dnyaneshwar - PW 8 states that Arun was lying on the ground when Santosh and Rekha arrived at the scene of occurrence. Dnyaneshwar does not speak of an assault on Santosh by any of the accused.
15 The most important witness from the perspective of the prosecution is PW 1 Santosh who is the complainant. He is an injured witness. The injury certificate Exh. 77 which reveals that the witness suffered injuries albeit relatively minor, is not disputed by the defence. Ordinarily, the evidence of an injured witness must be given due weightage since evidence of such witness is on a higher pedestal than that of other witnesses. An injured witness is less likely to falsely implicate innocent and to exculpate the guilty. The presence on the scene of occurrence ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 14 is reasonably certain in view of the injuries suffered and lends assurance to the prosecution version. However, having holistically appreciated the entire evidence on record, although, the complainant Santosh was indeed present on the scene of occurrence, the defence has created enough doubt on the version of the complainant that he witnessed the assault on the deceased Arun. Concededly, when he reached the spot of occurrence, and the travelling time according to the witness is 10 minutes from his house to the scene of occurrence, Arun was laying on the ground. However, although, the complainant has obviously exaggerated the nature and extent of assault which he suffered, his evidence can not be discarded altogether. Santosh has concededly suffered injuries, although, the injuries are not consistent with his version that he was assaulted on hand, leg and back by pipes, by accused Sunil and Raju. The only injuries noticed in the medical examination is a contusion and abrasion on the right forearm. Witnesses are however, prone to exaggerate, which is a hard reality. The complainant's evidence can not be brushed under the carpet totally.
16 In so far as appellant 3 Arvind s/o Shantaram Wahurwagh is concerned, the prosecution has not established the ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 15 offence punishable under section 325 of the IPC beyond reasonable doubt. Be it noted, that Arvind is not named in the First Information Report lodged by P.W.1 Santosh Rakrushna Waghmare. The report names Sunil Wahurwagh, Raju Wahurwagh and two others. The evidence of P.W.1 Santosh Waghmare, to the extent the same relates to the assault on deceased Arun, is not implicitly reliable and for reasons recorded earlier, it is highly unlikely that P.W.1 Santosh Waghmare witnessed the assault on deceased Arun. P.W.1 Santosh Waghmare deposes that he was assaulted by Sunil and Raju. Arvind is not named as an assailant. P.W.8 Dnyaneshwar Raut does state that Arvind had stick in his hand, but then he does not attribute any further role to Arvind in the assault on Arun. It is true that P.W.2 Pralhad Shionkar states that Arvind and Mukunda had sticks and they too assaulted the deceased Arun. However, in view of the inconsistent versions of the witnesses as regards the role played by Arvind and the fact that he was not named in the F.I.R., sufficient doubt is created about his complicity in the assault. Appellant-accused 3 Arvind is entitled to the benefit of the doubt.
17 In so far as appellant-accused 1 and 2 Sunil ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 16 Wahurwagh and Raju Wahurwagh are concerned, that they assaulted the deceased Arun is proved beyond reasonable doubt. 18 However, from the evidence on record it is difficult to ascertain as to who delivered the blow which caused the grievous hurt. Although Arvind suffered seven injures, injuries (i) to (vi) were simple injures, according to the Doctor. Injury (vii) unfortunately damaged the spleen leading to death. It would not be appropriate to invoke section 34 of the Indian Penal Code since the evidence on record does not suggest that the accused shared a common intention to cause injury to the deceased Arun. Concededly, the scene of occurrence is near the house of the accused and the deceased had gone to confront the accused Sunil on the issue of trespass by cattle. It is difficult to draw an inference that the accused had any meeting of mind or pre- designed plan to assault the deceased Arun. Since it is difficult to ascertain who delivered the fatal blow which damaged the spleen, I deem it appropriate to set aside the conviction of the accused under section 325 of IPC and instead to convict the accused under section 324 of IPC.
19 The judgment and order impugned is set aside to the ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 17 extent accused 3 Arvind is convicted for offence punishable under section 325 of IPC read with section 34 of the IPC. Arvind is acquitted of the said offence.
20 The Appellant-accused 1 Sunil Wahurwagh and 2 Raju Wahurwagh respectively are acquitted of offence punishable under section 325 of IPC and are convicted for offence punishable under section 324 of IPC. The accused 1 and 2 are sentenced to suffer rigorous imprisonment for a period of two years and to payment of fine of Rs.20,000/- each and in default to suffer further rigorous imprisonment of six months. 21 The fine, if deposited by the accused, be paid to the legal heirs of the deceased Arun s/o Ramkrishna Waghmare as compensation.
22 The accused are entitled to set off under section 428 of the Code of Criminal Procedure.
23 The bail bond of the accused 1 and 2 shall stand cancelled and they shall be taken into custody to serve the remainder period of the sentence. The Superintendent of Police, ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 ::: apeal556of02.odt 18 Akola to submit a compliance report in the registry of this court within 15 days, failing which the disposed of appeal shall be listed under the caption order matters for passing appropriate orders. 24 The appeal is partly allowed and disposed of in the above terms.
JUDGE RS Belkhede/NSN ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:17 :::