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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.25 OF 2002
Sahdeo s/o Zinguji Wankhede,
Aged about 62 years,
R/o Hartala, Dist. Amravati. ....... APPELLANT
...V E R S U S...
The State of Maharashtra through
P.S.O. Kholapur, Dist. Amravati. ....... RESPONDENT
WITH
CRIMINAL APPEAL NO.61 OF 2002
1] Bandu s/o Tulshiram Wankhede,
Aged about 30 years.
2] Chandu s/o Dayaram Wankhede,
Aged abou5t 28 years.
3] Nandu s/o Dayaram Wankhade,
Aged about 30 years.
All resident of Hartala,
P.S. Kholapur, Tq. Bhatkuli,
District Amravati. ....... APPELLANTS
...V E R S U S...
The State of Maharashtra through
P.S.O. Kholapur, Tq. Bhatkuli,
Dist. Amravati. ....... RESPONDENT
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Shri J.B. Kasat, Advocate for Appellant/s.
Shri H.R. Dhumale, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 14.08.2017 DATE OF PRONOUNCING THE JUDGMENT : 09.11.2017 1] Both the appeals challenge the judgment and order
dated 09.01.2002 in Sessions Trial 70/1996 delivered by Additional Sessions Judge, Amravati, by and under which, appellant-Sahdeo Wankhede in Criminal Appeal 25/2002 and appellants-Bandu Wankhade, Chandu Wankhede and Nandu Wankhade in Criminal Appeal 61/2002 are convicted for the offence punishable under section 307 read with section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs.500/-. 2] Heard Shri J.B. Kasat, the learned Advocate for the appellant/s and Shri H.R. Dhumale, the learned Additional Public Prosecutor for the respondent/State.
3] The gist of the prosecution case is that on 19.01.1996 the appellants-accused assaulted Mukund Balkrushna Deshmukh near the common water tank situated in village Hartala. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 3 The genesis of the assault was an altercation between Mukund Deshmukh and accused Nandu Wankhade, which took place on the issue of fetching of water. The altercation which took place at 08:30 a.m. on 19.09.1998 ended with the residents of the locality pacifying Mukund and Nandu Wankhade. However, accused Nandu along with the other accused Bandu, Chandu and Nandu accosted Mukund. Accused Sahadeo inflicted stick blow on the head of Mukund who fell down and then was assaulted by all accused. Mukund suffered injuries on head, hands and legs. The residents of the village Bisan Raut, Prakash Raut, Nandkishor Deshmukh took the injured Mukund to Primary Health Centre, Kholapur by bullock-cart. Injured Mukund was examined by the Medical Officer from Medical Officer of the P.H.C., Kholapur. He was unconscious and was vomiting blood. He was referred to General Hospital, Amravati. In the interregnum, Vitthalrao Deshmukh lodged report with Kholapur Police Station on the basis of which Head Constable Dayaram (P.W.18) registered offence against Bandu Wankhade, Chandu Wankhade and Nandu Wankhade who are named in the report. The case of the prosecution is that after regaining consciousness, statement of Mukund Deshmukh was recorded by Kholapur Police. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 4 Mukund named accused Sahadeo, in addition to the others named in the oral report lodged by Vitthalrao Deshmukh. The name of accused Sahadeo was added as accused 4 in the crime. The I.O. visited the spot, spot panchnama was drawn, accused Bandu, Chandu and Nandu were arrested, sticks were seized from the said accused in view of the memorandum statement recorded under section 27 of the Indian Evidence Act, clothes of injured, clothes of accused Chandu and Nandu were seized, accused Sahadeo was also arrested and a stick was seized from Sahdeo. On completion of investigation the charge-sheet was submitted in the Court of Judicial Magistrate First Class, Amravati who committed the case to the Sessions Court.
4] The Sessions Court framed charge under section 307 read with section 34 of IPC, the accused abjured guilt and claimed to be tried. The defence of the accused, as is obvious from the statement recorded under section 313 of the Code of Criminal Procedure and the trend of the cross-examination, is of false implication due to political rivalry. The father of accused 1-Bandu Wankhede was murdered and the complainant along with others are sentenced to life imprisonment for the said offence. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 5 The accused further stated that wife of Sahadeo Wankhade was contesting the election six months prior to the incident and the complainant was insisting that she withdraw her candidature. 5] Shri J.B. Kasat, the learned counsel submits that accused Sahadeo Wankhade, who is appellant in Criminal Appeal 25/2002 is obviously falsely implicated since he is not named in the First Information Report lodged by Vitthalrao Deshmukh (Exh.23). Insofar as accused Bandu Wankhade, Chandu Wankhede and Nandu Wankhade the appellants in Criminal Appeal 61/2002, the learned counsel would submit that the evidence on record is marred by inter se inconsistencies, contradictions, embellishments. The alternate submission of the learned counsel Shri Kasat is that even if the evidence is accepted at face value, the prosecution has not established charge under section 307 of IPC and in the factual scenario, the conviction can only be under section 326 of IPC if not under section 324 of IPC. 6] Per contra, Shri H.R. Dhumale, the learned Additional Public Prosecutor supports the judgment impugned. He would submit that the omission of Vitthalrao Deshmukh who lodged ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 6 report Exh.23 to name Sahadeo is of little significance. Sahadeo was named as one of the assailants by the injured Mukund when Mukund regained consciousness, is the submission. The nature and extent of the assault, and the injuries suffered, clearly spell out intention to cause death of Mukund and the accused are rightly convicted under section 307 of IPC, is the submission.
7] The contention of the learned counsel Shri J.B. Kasat that accused Mukund who is the appellant in Criminal Appeal 25/2002 deserves the benefit of doubt since he is not named in the First Information Report is not without substance. Be it noted, that accused Sahadeo is not named in the First Information Report lodged by Vitthalrao Deshmukh and is not even named in the 161 statements of the witnesses P.W.2-Vitthalrao Deshmukh, P.W.7-Vijay Deshmukh and P.W.11-Nandkishor Deshmukh. The learned Sessions Judge has however, relied on the disclosure of the name of accused Sahadeo by P.W.1-Mukund, the victim of the assault, after he regained consciousness. The learned Sessions Judge observes thus:
25. It is true that the prosecution has to stand on its own legs and the prosecution should not take benefit of ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 7 the lacuna or non establishment of the defence taken by accused persons. Here, I have already mentioned that PW-1 Mukund is disclosing the name and presence of the accused no. 4 at the time of assault and that according to him he has given the stick blow on his head. There is nothing brought on record to falsify the contention. Therefore, there is no reason to disbelieve the version of PW 1 Mukunda and other merely because at the time of filing the FIR PW-2 Vitthal Deshmukh has not disclosed the name of accused no. 4. I have already discussed that these eye witnesses arrived on the spot on hearing the noise when Mukund was being assaulted and therefore, the possibility of non- availability of these witnesses at that time due to his leaving the spot or due to lodging the FIR immediately cannot be ruled out.
8] I am afraid, that the consistent failure of the witnesses, who according to the prosecution are eye witnesses to the incident, to name Sahadeo as one of the assailants ought not to have been brushed aside on the possibility of Sahadeo leaving the spot immediately. The benefit of doubt to Sahadeo could not have been denied by a speculative process bordering on surmises and conjectures. In the teeth of the evidence on record, the defence of accused Sahadeo that he is falsely implicated due to political rivalry assumes importance and sufficient doubt is created as regards the veracity of the prosecution version to probablize the defence on the touchstone of preponderance of probabilities.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 8 9] I am inclined to grant the benefit of the doubt to appellant-Sahadeo and to allow Criminal Appeal 25/2002 by setting aside the conviction and sentence under section 307 of IPC as regards appellant-Sahadeo.
10] Insofar as appellants Bandu Wankhade, Chandu Wankhede and Nandu Wankhade, in order to bring home the charge, the prosecution examined 19 witnesses:
PW-1 Mukund Deshmukh - the injured is examined at Ex. 18, PW-2 Vitthalrao Deshmukh the alleged eye witness and the complainant is examined at Exh. 22, PW-3 Ramesh Ingle a panch witness on the spot panchanama is examined at Exh. 24, PW-4 Omprakash Betheria a panch witness on the seizure of the blood sample is examined at Ex. 25. PW-5 Jamil Baig Sabdar Baig a panch witness on the memorandum and seizure panchanama in respect of the weapon seized at the instance of accused Sahadeo examined at Ex.26, PW-6 Bahurao Kashirao Kangate a panch on the memorandum and seizure panchanama in respect of the weapons seized at the instance of accused no. 1 to 3 is examined at Ex. 27, PW-7 Vijay Deshmukh the another eye witness is examined at Exh.28, PW-8 Bisan Raut who, according to the ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 9 prosecution, was present on the spot at the time of incident is examined at Ex. 29, PW-9 Vinod Gawai a panch witness on the seizure memo in respect of the weapon seized at the instance of accused Sahadeo is examined at Ex. 30, PW-10 Shriram Dhoke a map drawer i.e. revenue inspector is examined at Ex. 33, PW-11 Nandkishor Deshmukh another alleged eye witness is examined at Ex. 36, PW-12 Dilip Wankhade a police constable who has taken the injured to Irwin hospital from P.H.C. Kholapur as well as who has taken Muddemal from this crime for the chemical analysis is examined at Ex. 37, PW-13 Dr. Ramesh Bhuskade then Medical Officer from P.H.C. Kholapur, who has examined the injured as well as collected the blood sample of the accused persons on 19/10/1996 is examined at Ex. 40, PW-14 Prakash Janrao Raut, a Medical Officer from General Hospital, Amravati is examined at Ex.46. PW-15 Dr. Chandrashekhar Kulkarni who has taken the X- ray of the left hand of injured Mukund on 7/2/1996 is examined at Ex.50, PW-16 Dr. Jaibharat Potode who has taken the x-ray of skull of injured Mukund is examined at Ex. 54, PW-17 A.P.I. Tawar who has made the investigation in this crime is examined at Ex. 61, PW-18 retired head constable Dayaram Khandare who has recorded the report and registered the crime on the basis of ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 10 report lodged by Vitthal Deshmukh (PW-2) is examined at Ex. 74, PW-19 Dr. Baburao Deshmukh the Medical Officer from General Hospital, Amravati who has examined injured Mukund is examined at Ex. 77.
11] Be it noted, that P.W.13-Ramesh Ingale, witness to the spot panchnama has not supported the prosecution. P.W.4-Omprkash Betheria, the panch witness to the seizure of the blood samples has also not supported the prosecution. P.W.5-Jamil Baig and P.W.9-Vinod Gawai who are panch witnesses to the memorandum and seizure as regards the stick allegedly recovered from the accused Sahadeo have also been declared hostile. P.W.6-Bahurao Kangate, who was examined to prove the seizure and memorandum panchnama as regards the sticks seized from accused Bandu, Chandu and Nandu also did not support the prosecution. The eye witnesses to the incident are P.W.1-Mukund Deshmukh who is the injured witness, P.W.2-Vitthalrao Deshmukh is the informant, P.W.7-Vijay Deshmukh, P.W.8-Bisan Raut and P.W.11-Nandkishor Deshmukh. However, P.W.8-Bisan Raut has not supported the prosecution on significant aspects.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 11 12] I have carefully scrutinized the evidence on record and in particular the evidence of P.W.1 injured Mukund Deshmukh, P.W.2-Vitthalrao Deshmukh, P.W.7-Vijay Deshmukh and P.W.11-Nandkishor Deshmukh. It is true that the said witnesses are not in a position to specifically and precisely state as to which blow was inflicted by which accused. But then, when a person is being assaulted by several persons, it is not expected of the eye witnesses to register, remember and recount the specific and precise participative roles of the accused. It is also true, as is argued by the learned counsel for the accused, that the injured witness Mukund Deshmukh has, at some point in time, exaggerated the incident inasmuch as the injured witness has stated in 161 statement that Farsha was in possession of accused Bandu. P.W.1-Mukund has denied this portion of the earlier statement and such weapon was not seized from accused Bandu. However, I am not persuaded to hold that the entire testimony of the injured witness must be discarded only because the exaggeration is brought on record through the evidence of the I.O. 13] On a holistic appreciation of evidence on record, I would agree with the finding recorded by the learned Sessions ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 12 Judge that accused Bandu, Chandu and Nandu in Criminal Appeal 61/2002 assaulted the injured Mukund.
14] The accused in Criminal Appeal 61/2002 have been convicted under section 307 read with section 34 of IPC. The injury report Exh.78 as regards the injured witness Mukund makes a reference to an injury on the occipital region 1" x ¼" x bone deep, a contusion on forehead of 1" x 1½" in size and multiple abrasions on both legs about 2 to 3 in numbers. Dr. Potode who is examined as P.W.16 has deposed that on 07.02.1996 he has taken x-ray of the head of Mukund Deshmukh, one in lateral and another is A.P. position. He has proved x-ray plates at Exh.55 and 56 and has deposed that he noticed two fractures, one linear fracture in parietal region and other on frontal bone in the centre. Dr. Potode has proved report Exh.57. Dr. Kulkarni is examined to prove that P.W.1 Mukund indeed suffered fracture on left metacarpal region, as was initially suspected. Nothing is elicited in the cross-examination of Dr. Potode or Dr. Kulkarni to suggest that P.W.1-Mukund did not suffer fracture injuries testified by the said Medical Practitioner. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 13 15] However, I am not persuaded to agree with the learned Sessions Judge that the accused Bandu, Chandu and Nandu can be convicted under section 307 of IPC read with section 34 of IPC. P.W.1 was assaulted by sticks. There is nothing on record to suggest that the accused were prevented from taking the assault to the logical end. The evidence is not sufficient to attribute intention to cause death nor the knowledge that by the assault accused may cause death. It is however, crystal clear that the accused caused grievous hurt to the injured P.W.1. The weapons of assault are Lathis. However, the injures are inflicted on vital parts of the body. The use Lathi as weapons of offence, in the factual matrix, would attract section 326 of the Indian Penal Code and while setting aside the conviction of the accused Bandu, Chandu and Nandu for offence punishable under section 307 of IPC read with section 34 of IPC, I convict the said accused for offence under section 326 of IPC.
16] In the totality of the circumstances, inter alia the fact that the incident occurred in the year 1996, I am of the opinion that sentence of rigorous imprisonment for period of two years would meet the ends of justice.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 ::: apeal25.02+J.odt 14 O R D E R [i] Criminal Appeal 25/2002 is allowed. [ii] Criminal appeal 61/2002 is partly allowed. [iii] The appellants-accused Bandu Wankhede, Chandu Wankhade and Nandu Wankhade are
acquitted of offence punishable under section 307 read with section 34 of IPC and are convicted for offence punishable under section 326 of IPC and are sentenced to suffer rigorous imprisonment for two years.
[iv] The accused are entitled to set off 428 of the Code of Criminal Procedure.
[v] The bail bonds of accused in Criminal Appeal 61/2002 are canclled. They be taken into custody to serve the remainder of sentence.
JUDGE NSN ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:34 :::