APEAL.104.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 104 OF 2015
1] Rintu @ Rituraj s/o Mohan
Aamde, aged about 21 years,
Occ. Student and Labour,
2] Mohan s/o Bisan Aamde,
aged about 50 years, Occ.
Agriculturist and Labour,
Both Residents of village Kurbadi,
P.S. Goregaon, Tahsil Goregaon,
Distt. Gondia (Mah.), at present
in custody in Central Jail, Nagpur. .... APPELLANTS.
// VERSUS //
The State of Maharashtra,
through its Police Station
Officer, Police Station
Goregaon, District - Gondia (Mah.) .... RESPONDENT.
Mr. E.W. Nawab, Advocate for the appellants,
Mr. V.P. Maldhure, Additional Public Prosecutor for respondent.
CORAM : B.R. GAVAI & KUM. INDIRA JAIN, JJ.
DATED : FEBRUARY 27, 2017.
JUDGMENT (PER B.R. GAVAI, J.)
1] Being aggrieved by the judgment and order passed by the ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 ::: APEAL.104.15 2 learned Additional Sessions Judge, Gondia dated 25.10.2013 in Special Criminal Case (Atro) No. 1/11, thereby convicting the appellants for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- each and in default, to suffer further R.I. for a period of three months and also convicting the appellants for the offences punishable under Section 435 read with Section 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years and to pay a fine of Rs.500/- each and in default, to suffer further R.I. for a period of one month, the appellants have approached this Court. 2] The prosecution story, in nutshell, as could be gathered from the material placed on record is thus :-
The deceased Debraj was residing with his parents at Saitola. The land bearing Gat N. 415 was leased out to the accused for the purpose of cultivation on Batai basis. It is the case of the prosecution that the accused without intimating the deceased removed the paddy crop from the field and took it to their house. When the deceased came to know about this, the deceased on his motor cycle bearing No. MH-35/J-5661 came in front of the house of the accused on 22.11.2010 in between 6.30 to 7 p.m. He was ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 ::: APEAL.104.15 3 standing near the motor cycle. The accused picked up a quarrel with the deceased for the reason of paddy crop and assaulted the deceased by the stick, i.e. ubhari and caused serious injury to the deceased. The accused thereafter brought paddy straw from the courtyard and put it on the deceased and motor cycle and set ablaze. The deceased was seriously injured. He was taken to KTS hospital, Gondia where he died. The First Information Report came to be lodged by PW.2 Bholaram, the uncle of the deceased. On the basis of the said oral report, First Information Report came to be registered vide Exh. 12 initially for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. After the death of the deceased, the same came to be converted for the offence punishable under Section 302 of the Indian Penal Code.
3] On the basis of the FIR, investigation was set into motion. At the conclusion of investigation, a charge-sheet came to be filed against the accused for the offences punishable under Sections 302, 307, 435 read with Section 34 of the Indian Penal Code and also for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the Court of learned J.M.F.C., Gondia. However, since the case was exclusively triable by the Court of Sessions, the same came to be ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 ::: APEAL.104.15 4 committed to the Court of the learned Sessions Judge, Gondia. The learned trial Judge framed the Charges for the offences punishable under Sections 302 and 435 read with Section 34 of the Indian Penal Code and also for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 below Exh. 5. The accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge acquitted the accused for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; however passed the order of conviction and sentence against the appellants, as aforesaid. Being aggrieved thereby, the present appeal has been filed. 4] Shri E.W. Nawab, the learned Counsel appearing on behalf of the appellants, submits that the learned trial Court has grossly erred in convicting the appellants. He submits that the alleged eye-witnesses cannot be eye-witnesses. He submits that their statements are recorded after 3-4 days only in order to implicate the present appellants.
5] The learned A.P.P., on the contrary, submits that the conviction is awarded on the basis of testimony of three eye- ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 :::
APEAL.104.15 5 witnesses and as such, no interference is warranted. 6] With the assistance of the learned A.P.P. as well as the learned Counsel for the appellants, we have scrutinized the entire evidence on record.
7] The prosecution case mainly rests on the evidence of PW.3 Dhruvraj, PW.7 Babulal and PW.8 Omprakash. PW.3 Dhruvraj in his statement stated that his house is situated behind the house of the accused. He saw that the accused No.2 Mohan took out Ubhari of bullock-cart and assaulted the deceased Debraj by Ubhari. He gave number of forcible blows of Ubhari to the deceased on his head, back and every part of body. When the deceased Debraj fell down, the accused Mohan caused damage to the motor cycle of Debraj by Ubhari. Thereafter, accused Mohan spread paddy straw over the motor cycle and body of Debraj and set fire to it. Due to fear, he did not go near them. When the deceased Debraj tried to move, the accused Mohan again turned down the bullock-cart on him. Thereafter, the accused No.1 Rituraj came there. He also gave kick blows to the deceased Debraj. The perusal of the testimony of this witness would reveal that there are many omissions and contradictions in his testimony. However, in so far as the deceased ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 ::: APEAL.104.15 6 being assaulted by the accused Mohan and setting the motor-cycle on fire is concerned, his testimony has remained unshaken. 8] PW.7 Babulal is another neighbour of the accused. He states that on the day of the incident at around 6.30 to 7 p.m. when he had come back from the market, he saw that the accused Mohan and deceased Debraj were sitting on a bench in front of the house of accused. He states that thereafter he entered in his house and after sometime he came out upon hearing the shouts. At that time, he saw that accused Mohan was assaulting Debraj by stick. When Debraj fell down, the accused Mohan put motor-cycle on Debraj and he also put paddy straw on Debraj and set in on fire. He further states that the accused Mohan also uttered that nobody should come to the spot otherwise he would kill that person. Thereafter the accused Mohan turned down the bullock-cart on Debraj and again put the paddy straw and again set it on fire. Thereafter, the accused Rituraj came there and he pulled out Debraj by holding his legs. The testimony of this witness would also show that there are material contradictions and omissions and he has improved the version than the one given in his police statement.
9] PW.8 Omprakash Sakhare states that on the day of the ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 ::: APEAL.104.15 7 incident, he had been to the grocery shop of PW.7 Babulal. Debraj was on motor-cycle. Accused Mohan was having one stick in his hand and he was moving the stick. First he gave blow of stick to the motor-cycle and thereafter he assaulted Debraj by stick. Debraj fell down with motor-cycle. Accused Mohan assaulted Debraj while he was lying on the ground. Debraj fell unconscious. Thereafter accused Mohan brought paddy straw from his house and put on Debraj. Thereafter again he brought paddy straw from his house and put it on motor-cycle and he first set fire on motor-cycle and then he set fire on Debraj. Deceased Debraj tried to stand but accused Mohan turned down bullock-cart on his person. Accused Rituraj also assaulted by fist and kick blows. His evidence would also show that there are material contradictions and omissions. However, the perusal of the evidence of PW.3 Dhruvraj and PW.7 Babulal would clearly show that the role of assault is attributed only to accused Mohan. The perusal of evidence of this witness would itself show that the accused Rituraj had arrived at the spot after the accused Mohan had assaulted the deceased and set him on fire. We, therefore, find that the conviction of the accused Rituraj is not at all sustainable. 10] In so far as accused Mohan is concerned, no doubt that all the three witnesses stated that the accused Mohan brutally assaulted ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 ::: APEAL.104.15 8 the deceased and also put up the bullock-cart on his person and set him and the motor-cycle on fire. The versions given by the three witnesses are inconsistent. The version regarding putting up the bullock-cart on the person of the deceased is totally by way of an improvement. In any case, same is not corroborated by medical testimony. The deceased has sustained the following external injuries :-
(1) Sutured wound on left supra orbital region, size 4 x 1 cm, (2) Abrasion right side forehead, size 3 x 2 cm. (3) Abrasion cheek, size 4 x 3 cm.
(4) Abrasion left cheek, size 5 x 3 cm. (5) Abrasion right zygomatic region, size 2 x 2 cm. (6) Contusion on right scapular and infrash scapular region, size 12 x 10 cm.
The doctor also found deep burns on left upper limb, left side chest, left mammary region, right upper limb, left scapular region, total area of burns was around 16 percent.
On internal examination, the doctor found the following injuries :-
(1) Fracture of ribs No. 4 to 8 on posterior parts, (2) There was about 2 and ½ lts. blood noted in thoracic cavity, (3) Lacerated wound on right lung on posterior aspect of middle and lower lobe measuring 3 x 2 and 4 x 2 cm. respectively. (4) Contusion left lung, size 6 x 6 cm. in lower lobe, (5) 2 lts. of blood in peritoneal cavity, ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 ::: APEAL.104.15 9 (6) Lacerated wound on lateral surface of liver, size 8 x 3 cm., (7) Right kidney was crushed.
11] We find that if the version of the prosecution witnesses that the accused Mohan had turned down the bullock-cart on the person of the deceased is to be believed, then there ought to have been much more serious injuries. However, the principle that 'Falsus in uno, falsus in omnibus' is not applicable in the Indian Criminal Jurisprudence. We will have, therefore, to separate the chaff from the grain. We find that though the version of the witnesses that the accused Mohan assaulted the deceased with stick and thereafter set him on fire is found to be trustworthy, at the same time, we find that all the witnesses have exaggerated the story.
12] We further find that from the material placed on record and particularly the evidence of PW.7 Babulal that when he came to his house, he saw that the deceased and the accused Mohan were sitting together and talking to each other, the possibility of a sudden quarrel on the issue of Batai taking place between the accused Mohan and the deceased and in a heat of passion the accused Mohan assaulting the deceased with stick which was readily available and thereafter setting him and the motor-cycle on fire ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 ::: APEAL.104.15 10 cannot be ruled out. PW.4 Dr. Ajay Ghormare has himself admitted in his cross-examination that 16% burn injury is not sufficient for causing death of the person. Taking into consideration the weapon used and the nature of injuries, we find that the prosecution has failed to prove that the accused Mohan had an intention to cause the death of the deceased. We are of the considered view that the accused Mohan is entitled to benefit of doubt.
13] In the result, the Criminal Appeal is partly allowed.
The order of conviction insofar as appellant No.1 Rintu @ Rituraj s/o Mohan Aamde is concerned, the same is set aside. He is acquitted of the charges charged with.
Bail bonds of appellant no.1 Rituraj Aamde shall stand discharged. Fine amount, if any, paid by appellant no.1 Rituraj shall be refunded to him.
Insofar as appellant no.2 Mohan s/o Bisan Aamde is concerned, his conviction under Section 302 of the Indian Penal Code is altered to one under Part II of Section 304 of the Indian Penal Code. For the said offence, appellant no.2 Mohan is sentenced to suffer rigorous imprisonment for six years.
Appellant no.2 Mohan has already undergone R.I. for more than six years since he was taken in the custody on 24.11.2010. He ::: Uploaded on - 02/03/2017 ::: Downloaded on - 03/03/2017 00:47:03 ::: APEAL.104.15 11 is, therefore, directed to be set at liberty forthwith, if not required in any other case. Rest of the order with regard to fine insofar as appellant no.2 Mohan is concerned, is maintained.
JUDGE JUDGE .
J.
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