apeal558.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.558 OF 2004
Prakash s/o Mahadeorao Mohture,
Aged about 39 years,
Occ: Agriculturist, R/o Khapa,
Tah. & District Bhandara. ....... APPELLANT
...V E R S U S...
State of Maharashtra, through
Police Station Officer, Police Station
Sihora, Tahsil Tumsar,
District Bhandara. ....... RESPONDENT
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Shri S.G. Joshi, Advocate holding for Shri Anil Mardikar,
Senior Advocate for Appellant.
Shri H.R. Dhumale, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 15.09.2017 DATE OF PRONOUNCING THE JUDGMENT : 21.12.2017 1] The appeal is directed against the judgment and order
dated 19.08.2004 passed by the 2nd Ad-hoc Assistant Sessions Judge, Bhandara in Sessions Trial 93/2001, by and under which, ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 2 the appellant is convicted for offence punishable under section 307 of the Indian Penal Code ('IPC' for short) and is sentenced to undergo rigorous imprisonment for 10 (Ten) years and to payment of fine of Rs.10,000/- (Ten thousand). 2] Heard Shri Sumit Joshi, the learned Counsel holding for Shri Anil Mardikar, the learned Senior Advocate for the appellant and Shri H.R. Dhumale, the learned Additional Public Prosecutor for the respondent/State.
3] Heard Shri Sumit Joshi, the learned counsel for the appellant-accused assails the judgment and order impugned as against the weight of the evidence on record. The evidence of the prosecution witnesses is marred by inter se inconsistencies, exaggeration and embellishment, is the submission. The learned counsel submits, arguendo and in the alternate, that even if the evidence on record is taken at face value, offence punishable under section 307 of the IPC is not established. Per contra, the learned A.P.P. would support the judgment and order impugned, and would submit that the judgment and order impugned suffers ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 3 from no infirmity, on facts or in law.
4] The case of the prosecution as is unfolded during the trial is thus :-
Sahasram Aswale is a resident of village Khapa and is engaged in the business of supply of building material. The appellant (hereinafter referred to as 'the accused') is Sahasram's brother-in-law, to wit the brother of Sahasram's wife Ujwala. Sahasram supplied part of the centring material needed by the accused for the construction of his house but did not supply centring material for the upper-stairs, the accused was finding it difficult to climb over the slab to sprinkle water for curing. The accused engaged another contractor one Wahile which led to some misunderstanding between Sahasram and the accused Prakash. The incidents which occurred prior to the incident are blurred. However, what is reasonably discernible is that there was some altercation between the two 15 days prior to the incident.
Sahasram, who had left home in the early morning at 10:00 a.m. on 28.05.2001, he was parking the Luna in the court-yard. The accused arrived at the spot armed with a plastic bottle containing acid and iron stick and poured the acid on ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 4 Sahasram causing extensive burns. Sahasram shouted in pain, family members namely Ujwala and son Pawan, brother-in-law Rakrushna and his wife appeared on the spot. A scuffle ensued. Concededly, Pawan, Ujwala, Ramkrushna and accused suffered burn injures in varying degrees.
5] The injured were taken to the Government Hospital, Tumsar, the Medical Officer informed the Police Station Tumsar and PSI Borkar went to the Hospital and recorded the statement of Pawan which is the oral report marked Exh.13 on the record of the trial court. The printed F.I.R. is Exh.14. On the basis of the said report offence punishable under section 324 of the IPC was registered against the accused.
PSI Reddiwar who took over the investigation visited the spot of the incident, prepared spot panchnama, seized the plastic bottle and other articles which he noticed at the spot. PSI Reddiwar requested the Executive Magistrate, Tumsar to record the dying declaration of the injured. In view of the injuries referred to in the injury certificate, PSI Reddiwar additionally registered offence punishable under section 307 of the IPC. ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 5 Upon completion of the investigation, charge-sheet was submitted in the Court of the Judicial Magistrate, First Class, Mohadi, who committed the case to the Sessions Court. The learned Sessions Judge framed charge Exh.8, the accused abjured guilt and claimed to be tried in accordance with law. The defence is that it was Sahasram who threw acid on the person of the accused. 6] Concededly, the accused is the brother of Ujwala the wife of injured Sahasram. Ramkrushna is the brother of Ujwala and the accused. The house of the accused is on the southern side of the house of the injured Sahasram and the house of Ramkrushna adjoins the house of the injured Sahasram. The previous enmity, albeit not very old, between the accused and injured Sahasram is not in serious dispute. The bone of contention was apparently the 3 feet open space between the house of the accused and the injured Sahasram and the relationship only worsened over the misunderstanding or dispute relating to the fixing of the centring. Prior to the incident, one Wahile who was engaged by the accused after the misunderstanding with the injured Sahasram was obstructed by the injured Sahasram when ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 6 Shri Wahile was to fix the centring for the upstairs. The reasons for the strained relationship could be contentious, the fact that the relationship was strained is not in serious dispute. 7] Pawan Aswale whose statement is treated as oral report is examined as P.W.1. He has deposed that at 10:15 a.m. on 28.05.2001 just as Sahasram returned home the accused approached Sahasram and threw acid on his person. Pawan, Ujwala, Ramkrushna and the wife of Ramkrushna intervened to rescue Sahasram and in the scuffle which followed the remaining acid in the bottle splashed on the person of Pawan, Ujwala, Ramkrushna and the accused. Ramkrushna arranged a vehicle and the injured including the accused were taken to the Government Hospital, Tumsar. The examination-in-chief is broadly consistent with the contents of the oral report. P.W.1 Pawan was extensively cross-examined. However, the credibility of the said witness is not shaken and there is no reason to disbelieve P.W.1 Pawan who has deposed that the accused came armed with a bottle of acid and iron stick and poured acid on the person of Sahasram the father of P.W.1 Pawan. The strained ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 7 relationship between the accused and the injured Sahasram is brought out in the cross-examination, but then, the strained relationship is not disputed by the complainant or the other prosecution witnesses who have deposed that it was the accused who poured acid on the person of the injured Sahasram. P.W.1 has denied the suggestion that it was the injured Sahasram who had a bottle of acid with him and that in the scuffle the liquid in the said plastic bottle splash on the injured Sahasram, Ramkrushna, Ujwala and P.W.1 Pawan.
The injured Sahasram is examined as P.W.2. He has deposed that accused is serving as Chemist in Tambi Industries near Khapa village. P.W.2 has narrated in detail the circumstances leading to the strained relationship between the accused and P.W.2. The deposition as to what transpired on the day of the incident is broadly consistent with that of P.W.1 Pawan. P.W.2 has deposed that due to the acid which the accused poured on his person, he suffered severe and extensive injuries and was hospitalized for ten days in Government Hospital, Nagpur and at Private Hospital of Dr. Anjankar for 15 to 20 days. The clothes which the witnesses wore were burnt due to acid and these ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 8 clothes were seized by the Police is the deposition. The witness describes the injuries and the after effect thus :-
I am having injury to left ear, left ear is practically drop of. I am having burning injuries on my left side and having hearing problem from left side ear. Due to the burning injuries, there is a itching and this problem is severe when I work in light. I am unable to perform heavy work. My left hand is practically workless due to cutting of left vain. I was operated, the skin is fixed to the body and due to this movements are not free.
8] P.W.2 was also subjected to extensive cross-examination which, however, achieves nothing from the perspective of the accused. Nothing is elicited to discredit P.W.2 or to render the evidence vulnerable. Substantial part of the cross-examination is directed at bringing on record the inter se dispute and the strained relationship, which I have noted supra is really in dispute. It is however, elicited that P.W.2 does not possess the discharge certificate of Government Hospital, Nagpur.
A suggestion is given to P.W.2 that he suffered only minor injury and that he was neither treated at the Government Hospital, Nagpur nor at the Private Hospital of Dr. Anjankar, which ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 9 suggestion is denied. It is also suggested to P.W.2 that it was P.W.2 and the other family members who assaulted the accused and poured acid on the person of the accused.
9] Ujwala, the sister of the accused and the wife of P.W.2 Sahasram is examined as P.W.3. She has deposed that between 10:30 to 11:00 a.m. on 28.05.2001 when she was in the varandah of the house, her husband P.W.2 entered the court-yard, P.W.3 heard the accused shouting 'Ala Sala'. She states that the accused then approached P.W.2 Sahasram with a plastic bottle and iron stick. She attempted to stop the accused from approaching her husband. The accused showed her aside and poured acid on the person of P.W.2. She states that since P.W.2 was shouting aloud in agony she sprinkled water on the injuries. She states that while attempting to pull the iron stick from the hand of the accused, some acid fell on her face, head and left hand. She suffered an injury on the head in attempting to pull the iron stick from the hand of the accused. She has deposed that the accused too suffered injury since some drops fell on his person while he was pouring acid on the person of Sahasram. ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 10
P.W.3 suggested that the evidence of P.W.3 Ujwala, who is the blood sister of the accused, is not shown to be unreliable or untrustworthy. She has come across as a truthful witness although she was subjected to gruelling cross-examination. She is also suggested that there was a scuffle and it was her husband injured Sahasram who poured acid on the person of the accused.
Ramkrushna who is examined as P.W.4 did not support the prosecution. However, in the examination-in-chief P.W.4 Ramkrushna states that he saw the accused, the injured Sahasram, Ujwala and Pawan engaged in a scuffle. He was treated as a hostile witness and cross-examined on behalf of the prosecution. He admits that the clothes of the injured Sahasram were burnt and he was shouting in pain. He admits that Ujwala suffered burn injuries on face and that both Sahasram and Prakash were admitted at the Government Hospital, Tumsar as indoor patients. In the cross-examination on behalf of the accused, it is the defence which has brought on record that it was the injured Sahasram who was having major injuries on his person, and that the incident took place in the court-yard of the injured ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 11 Sahasram. It is the defence which has brought on record that the injured Sahasram was initially treated at Government Hospital at Tumsar for 2 days and thereafter he was shifted to Nagpur. Be it noted, that suggestions were consistently given to the injured Sahasram and P.W.3 Ujwala that the injured Sahasram was not treated at Nagpur.
10] The Investigating Officer Harishankar Reddiwar is examined as P.W.7. He states that it was after receiving the injury certificates of the victim that he additionally registered offence under section 307 of the IPC.
11] The report of the Chemical Analyzer Exh.42 opines that the white plastic container which was seized from the spot contents concentrated sulphuric acid. Sulphuric acid is also detected on the clothes worn by the victim and the accused.
Dr. Sarita Patil the then Medical Officer at Government Hospital, Tumsar is examined as P.W.9. She, after examining the injured Sahasram issued injury certificate Exh.52. The relevant portion of her deposition reads thus :- ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 12
On the same day, I have examined Sahasram Kashiram Aswale, he has burnt over minor over right extremity, minor over exalla, and minor burn no.45 on right side of face, age of burns within 12 hours, cause of burn due to sulfuric acid, period of recovery 8 to 10 days, in no complication occurred, age of injury caused within 12 hours. Accordingly, I issued medical certificate, bear my signature, it is in my hand writing, it is a Exh.52. Though the injuries are superficial, but the complications can be serious. The injuries may be deep. If septicemia occurs due to the deep injury, there is possibility of death. Due to the pouring acid, there is possibility of differmative of muscles.
Dr. Sarita Patil also examined the accused Prakash and issued injury certificate Exh.55 which refers to burns over right arm, burns over right side of neck, burns over left extremity and burns over left side of chest.
12] Dr. Patil has further deposed that injured Sahasram was admitted in the Tumsar Hospital till 30.05.2001 and was referred to General Hospital at Bhandara for further treatment. 13] The evidence on record is cogent enough to satisfy the conscious of the court that it was the accused who came to the house of the injured Sahasram armed with a bottle containing ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 13 sulphuric acid and poured the acid on the injured Sahasram. The learned counsel for the accused is right in contending that there was a scuffle and during the scuffle the acid splashed injuring not only with the accused but also Ujwala, Ramkrushna and Pawan. The evidence clearly points to scuffle. However, in the teeth of the evidence on record, the finding recorded by the learned Sessions Judge that it was the accused who came in the court-yard of the house of the injured Sahasram and splashed acid on the person of the injured Sahasram is unexceptionable. 14] However, I am not in a position to concur with the Sessions Judge that the prosecution has proved the offence punishable under section 307 of the IPC. Neither the quantity and nor the concentration of the sulphuric acid is clear from the evidence. The incident is blurred in as much as it cannot be said with certainty that the accused intended to cause death or that the accused can be attributed the knowledge that death is likely to be caused due to the use of acid in the assault. The intention was certainly to injure Sahasram. However, for reasons known only to the prosecution, the treatment given to the injured Sahasram after ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 14 he was discharged from the Government Hospital, Tumsar within 2 day of the incident is not brought on record. Dr. Patil states that the injured Sahasram was referred to General Hospital, Bhandara for further treatment while the injured Sahasram states that instead of General Hospital, Bhandara he was admitted to Government Hospital, Nagpur and was hospitalized there for 10 days. Nothing is placed on record to throw light on the treatment given to injured Sahasram at the Government Hospital, Nagpur. Neither the bed ticket or other medical papers nor the discharge card is produced on record. The deposition of P.W.2 injured Sahasram is that since a vein was cut, and the suggestion is that the vein was cut either accidentally or due to negligence, he was admitted to the Private Hospital of Dr. Anjankar. The said Doctor is not examined. No medical papers are placed on record to show why and under which circumstances was the injured Sahasram admitted, if at all, to the said Private Hospital. P.W.3 Ujwala does speak of P.W.2 Sahasram having been admitted at the Government Hospital, Nagpur for 15 days and then P.W.2 having been shifted to the Private Hospital for further treatment. However, even if the evidence that P.W.2 was shifted to the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 15 Private Hospital is accepted at face value, P.W.2 Sahasram has deposed that the reason why he was shifted to the Private Hospital was that during the treatment at the Government Hospital, Nagpur one of the vein was cut and which necessitated an operation to rejoin the vein. The evidence of P.W.2 that the left ear has practically "dropped of" or dismembered or is not consistent with the injury certificate Exh.52 and as noted supra, the prosecution has for reasons inexplicable failed to adduce any evidence to throw light on the medical condition of, and the treatment received by the injured Sahasram after he was discharged from the Government Hospital, Tumsar on 30.05.2001.
15] Having given anxious consideration to the evidence on record, I am of the opinion that the prosecution has proved offence punishable under section 324 of the IPC. I am not in a position to record a finding that the injury suffered by P.W.2 Sahasram is a grievous injury within the meaning of section 320 of the IPC. I would set aside the conviction of the accused under section 307 of the IPC and instead would convict the accused ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 16 under section 324 of the IPC.
16] In so far as the sentence to be awarded, the accused deserves no leniency. Indeed, the use of sulphuric acid which has the potential of causing untold pain, misery, emotional trauma and disfigurement which the accused as a Chemist knew only too well, ipso facto disentitles the accused to any leniency in awarding punishment. I therefore, sentence the accused to suffer rigorous imprisonment for three years and to payment of fine of Rs.50,000/-.
17] The conviction of the accused under section 307 of the IPC is set aside and instead the accused Prakash Mohture is convicted for offence punishable under section 324 of the IPC and is sentenced to suffer rigorous imprisonment for a period of three years and to payment of fine of Rs.50,000/- or in default to suffer rigorous imprisonment for further period of six months. If the fine is recovered, the same shall be paid to the injured Sahasram as compensation.
::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 ::: apeal558.04.J.odt 17 18] The bail bond of the accused shall stand cancelled. The accused shall be taken into custody to serve the remainder period of the sentence. The Superintendent of Police, Bhandara 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. 19] The appeal is partly allowed and disposed of in the above terms.
JUDGE NSN ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:21 :::