apeal.533.03.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.533 OF 2003
Avinash @ Baba s/o Chintaman Chaudhari,
Aged about 44 years, Occ: Landlord,
R/o Saoner, Distt. Nagpur .... Appellant
-- Versus -
State of Maharashtra,
through P.S.O. Saoner,
District Nagpur. .... Respondent
Shri R.B. Gaikwad, Advocate for the Appellant.
Shri Shyam Bissa, A.P.P. for the Respondent/State.
CORAM : KUM. INDIRA JAIN, J.
DATE : OCTOBER 4, 2017. ORAL JUDGMENT :-
This appeal takes an exception to the judgment and order dated 22/07/2003 passed by the learned 1st Ad hoc Additional Sessions Judge, Nagpur in Session Trial No.721/2001. By the said judgment and order, accused no.1 though acquitted of the offence punishable under Sections 307 and 201 of the Indian Penal Code ('IPC' for short) came to be convicted of the offence punishable under Sections 324 of IPC and sentenced to ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:00:42 ::: apeal.533.03.jud 2 suffer rigorous imprisonment for two years with fine of Rs.3,000/-, in default to undergo rigorous imprisonment for three months.
02] The facts giving rise to the appeal may be stated in brief as under :
i. PW-1 Gangadhar Thakre is complainant. He had taken two rooms on rent from accused Avinash on 01/01/1996. Gangadhar was running a readymade cloth shop in the name and style as M/s. Jyoti Garments in the rented premises. As he was indisposed, shop was closed from 24/04/2001 till 12/06/2001. He was in arrears of rent for two months. On 13/06/2001, at around 08:30 a.m., PW-4 Prashant Thakre opened the shop and Gangadhar followed him. Some cloths were found missing. Gangadhar asked accused about the missing cloths. On that, accused replied that 'he may do whatever he want' and asked Gangadhar to vacate the shop, otherwise he would kill his entire family. That time Gangadhar asked accused ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:00:42 ::: apeal.533.03.jud 3 to return the cloths, otherwise he would report to police. Gangadhar lodged report in the police station. ii. On 14/09/2001 at 9 O'clock, Gangadhar with his wife PW-3 Pushpa, Son PW-4 Prashant and another son Sachin were present in the shop. Accused came in front of shop and called Gangadhar. Gangadhar went near accused. Accused demanded rent. Gangadhar told him that he had sent rent through post. Accused insisted Gangadhar to pay in cash and he would not accept the rent through post. Gangadhar insisted for rent receipt to which accused declined and insisted Gangadhar to vacate the premises. He also threatened to kill the family of Gangadhar and saying so, took out a knife concealed in his waist and rushed towards Gangadhar to assault him. On seeing this, Pushpa tried to save Gangadhar. Accused delivered blows with knife on back of head and above left eye of Pushpa. She sustained injuries and fell down. Accused then assaulted Prashant by knife blows on his left arm. Gangadhar and Prashant could manage ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:00:42 ::: apeal.533.03.jud 4 and caught hold Avinash. Accused gave a call to Moreshwar. Moreshwar, wife of accused, co-accused Urmila, Vinod and Gadwe reached the spot. Vinod snatched away knife from accused and handed it over to Urmila. Thereafter, Avinash was taken to his house, and Pushpa and Prashant went to Police Station with Gangadhar. Report was lodged. It was reduced to writing by PW-10 ASI Dongre. Crime No.203/2001 came to be registered under Section 307 IPC against the accused.
iii. PW-13 PSI Baliram Daberao took over investigation.
Injured were referred to Rural Hospital, Saoner. Accused was arrested. On 15/09/2001, PSI Daberao visited the place of occurrence and recorded spot- panchnama in the presence of panch-witnesses. The stains of blood were found on the spot. The cement flooring pieces having blood stains were seized. It's seizure-panchnama was drawn.
iv. According to prosecution, on 15/09/2001 accused was in police custody. He gave a statement in the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:00:42 ::: apeal.533.03.jud 5 presence of two panch-witnesses to discover a knife concealed in his house. He stated that his clothes were kept hidden in the house. PSI Daberao recorded memorandum of accused and proceeded to the house of accused. Accused produced a knife kept beneath the wooden almirah and the clothes from his house. Discovery panchnama of knife and clothes came to be drawn by the Investigating Officer.
v. It transpired during investigation that some blood stains lying on the spot were wiped out by Urmila. She was interrogated. She produced a Baniyan having blood stains. The said Baniyan was seized and its seizure-panchnama was drawn. Accused Urmila was then arrested.
vi. On 16/09/2001, clothes of injured Pushpa and Prashant were seized under separate seizure- panchnamas recorded in the presence of panchas. Statements of witnesses were recorded. Seized muddemal was forwarded to Chemical Analyzer. On ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:00:42 ::: apeal.533.03.jud 6 completing investigation, charge-sheet was filed before Judicial Magistrate First Class, Saoner, who in turn committed the case for trial to the Court of Sessions. On committal, Sessions Court framed Charge at Exh.2. Accused pleaded not guilty and claimed to be tried. The defence of accused was of total denial and false implication.
vii. In order to substantiate the guilt of accused, prosecution examined in all 13 witnesses. In addition to oral evidence, reliance was placed on series of documents. Considering the oral and documentary evidence, trial Court negatived the charge under Sections 307 and 201 of IPC. Accused no.2-Urmila was held not guilty of the offences alleged and she was acquitted. However, accused no.1-Avinash was held guilty of the offence punishable under Section 324 of IPC, and convicted and sentenced as stated hereinabove. Being aggrieved with the order of conviction and sentence, accused no.1 has preferred this appeal.
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03] Heard Shri R.B. Gaikwad, learned Counsel for appellant and Shri Shyam Bissa, learned Additional Public Prosecutor for the State. With the assistance of the learned Counsel for the parties, this Court has perused the impugned judgment and order, evidence of PW-1 Gangadhar, PW-3 Pushpa, PW-4 Prashant and other material witnesses. On close scrutiny of the evidence of prosecution witnesses and keeping in view the previous animosity between the parties, this Court for the below mentioned reasons holds that prosecution could not prove the offence under Section 324 of IPC against the accused. 04] PW-1 Gangadhar, PW-3 Pushpa and PW-4 Prashant are the star witnesses. Their evidence is almost identical. It is stated by PW-1 Gangadhar that on 14/09/2001 at around 09:15 p.m., he was present in his shop. That time, his sons Prashant and Sachin and wife Pushpa were also present. He stated that accused Avinash came in front of his shop and called him. He went near accused and accused demanded rent from him. On that, he replied that rent has been sent by money order. According to Gangadhar, accused insisted for cash. Gangadhar told him to give rent receipt. Accused asked Gangadhar to pay ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:00:42 ::: apeal.533.03.jud 8 rent in cash, else vacate the premises. It is stated by Gangadhar that accused threatened to kill family members of Gangadhar and took out a knife concealed near his waist. That time, his wife came in front and pushed him aside. From the evidence of Gangadhar, it appears that accused gave blow of knife initially on the head of Pushpa, but the blow struck against her eye. The second blow with knife was delivered by accused on her head. She sustained bleeding injuries and fell down. It is stated by Gangadhar that thereafter he and his sons Prashant and Sachin caught hold accused. Accused called other persons including his wife. They came on the spot. Vinod, to whom the accused called, snatched away knife from the accused. While snatching the knife away, Prashant sustained injury to his right arm. Thereafter accused went away. It is stated by Gangadhar that he and Pushpa went to Police Station and lodged report. He proved oral report [Exh.23] and printed F.I.R. [Exh.24]. 05] In the cross-examination, it is admitted by Gangadhar that his relations with accused were strained as there was a dispute on rent.. If oral report is minutely looked into, the manner of incident disclosed before police appears to be ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:00:42 ::: apeal.533.03.jud 9 different than deposed before the Court. As per oral report, Gangadhar, his wife Pushpa and sons Prashant and Sachin had come to the shop at 9 O'clock. That time, accused started abusing them and said "you leave shop, otherwise I will kill your family". Therefore, accused brought a knife, rushed at Gangadhar to assault. Then, he states in oral report that as his wife intervened, she sustained blow on the back of head and received injuries. Similarly, his son Prashant too rushed to save him, but he sustained injury on his left arm.
06] So far as hurling of abuses is concerned, there is no whisper in the entire evidence. Regarding injury to Prashant, no where it is stated in the evidence that due to knife blows, he received injuries. It appears from the injury report that accused brought the knife after hot exchange between him and complainant, whereas in the evidence, it is stated that he took out a knife hidden near the waist. The evidence and the oral report create an anomaly so far as carrying of knife is concerned. That anomaly has not been removed by the prosecution till end. Considering the previous animosity and the admitted strained relations between accused and complainant since before the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:00:42 ::: apeal.533.03.jud 10 incident, it was essential for prosecution to prove manner of incident beyond doubt. This has not been done. 07] So far as evidence of PW-3 Pushpa and PW-4 Prashant is concerned, it is almost identical to the evidence of complainant Gangadhar. Prashant is son of complainant and Pushpa is his wife. They are bound to side the complainant, as long standing dispute is pending between accused and complainant on payment of rent.
08] The learned A.P.P. submitted that medical evidence is consistent and corroborates the testimony of complainant and witnesses. The submission is that Medical Officers are independent witnesses and there is no reason to disbelieve their testimonies. It is pertinent to note that presence of other witnesses on the spot has been admitted by PW-4 Prashant in his cross-examination. Even from the charge-sheet, it can be seen that prosecution named the witnesses. None of independent witnesses came to be examined, except PW-2 Kiran Gadhwe, who did not support the prosecution and was declared hostile. Prosecution did not assign any reason for not examining the best ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:00:42 ::: apeal.533.03.jud 11 witnesses though available. Non-examination of independent witnesses is a serious drawback in prosecution case. 09] So far as discovery of knife is concerned, prosecution examined PW-5 Marotrao as panch witness. He did not support the prosecution and was declared hostile. In the absence of evidence, no reliance can be placed on discovery-panchnama and the alleged memorandum of accused.
10] In the light of the above, this Court finds that prosecution could not prove the guilt of accused under Section 324 IPC beyond reasonable doubt. As such, judgment and order of conviction and sentence is unsustainable in law. Hence, the following order :
ORDER I. Criminal Appeal No.533/2003 is allowed. II. Impugned judgment and order dated 22/07/2003 passed by the learned 1st Ad hoc Additional Sessions Judge, Nagpur in Session Trial No.721/2001 is quashed and set aside.
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IV. His bail bonds shall stand cancelled forthwith.
*sdw (Kum. Indira Jain, J)
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