apeal284.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.284 OF 2004
1] Shobharam s/o Dadu Kasdekar
Aged about 50 years,
Occu: Agriculturist,
Resident of Sawalkheda,
Tq. Dharni, Dist. Amravati.
2] Asaram s/o Dadu Dhurve,
Aged about 42 years,
Occu: Agriculturist,
R/o Sawalkheda,
Tq. Dharni, Dist. Amravati. ....... APPELLANTS
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Dharni, Tq. Dharni,
Dist. Amravati. ....... RESPONDENT
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None for Appellants.
Shri N.B. Jawade, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 13.10.2017 DATE OF PRONOUNCING THE JUDGMENT : 31.10.2017 1] Challenge is to the judgment and order dated ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:19 ::: apeal284.04.J.odt 2
25.03.2004 in Sessions Trial 123/1998 delivered by 1 st Adhoc Additional Sessions Judge, Achalpur, by and under which, appellant 1-Shobharam Dadu Kasdekar is convicted for offence punishable under section 324 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs.200/- and appellant 2-Asaram Dhurve is convicted for offence punishable under section 323 of IPC and is sentenced to suffer rigorous imprisonment for six months and to payment of fine of Rs.200/-.
2] The appeal was called out on 03.10.2017. There was no appearance on behalf of the appellants and subject to payment of costs the hearing was adjourned to 06.10.2017. However, the appeal was listed for final hearing on 09.10.2017. Again, there was no appearance on behalf of the appellants. It was noticed that the learned counsel for the appellant had not collected the paper-book. This Court heard the learned Additional Public Prosecutor for sometime and adjourned the hearing to 13.10.2017 making it clear that if there is no appearance on behalf of the appellants, the appeal shall be decided on merits. Since there was no appearance on behalf of the appellants on 13.10.2017, with ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:19 ::: apeal284.04.J.odt 3 the able assistance of Shri N.B. Jawade, the learned Additional Public Prosecutor this Court scrutinized the record, heard the learned Additional Public Prosecutor who in all fairness invited the attention of this Court to the entire evidence including the material adverse to the prosecution, as indeed every officer of this Court is expected to do.
3] The appellants Shobharam Kasdekar and Asaram Dhurve, original accused 1 and 2, faced trial for having committed offences punishable under sections 147, 148, 307, 324, 326 read with section 149 of the IPC along with six others namely Gangaram Kasdekar, Balaji Kasdekar, Zapu Kasdekar, Nandu Kasdekar, Chhotelal Bethekar and Shobharam Bethekar (accused 3 to 8). While the learned Sessions Court was pleased to acquit the accused 3 to 8 of all offences, the accused 1-Shobharam Kasdekar is convicted for offence punishable under section 324 of IPC and accused 2-Asaram Dhurve is convicted for offence punishable under section 323 of IPC as noted supra. 4] The State has not challenged the acquittal of accused 3 to 8 nor has the State challenged the finding of the learned ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:19 ::: apeal284.04.J.odt 4 Sessions Judge that accused 1 and 2 Shobharam and Asaram deserves to be acquitted of offences punishable under sections 147, 326, 307 read with section 149 of IPC.
5] The appellant 1 (herein after referred to as the accused 1-Shobharam) is convicted for offence punishable under section 324 of IPC on the basis of the finding recorded that it is established by the prosecution that accused Shobharam assaulted P.W.5-Tarasingh Belsare with an axe. The appellant 2 (herein after referred to as the accused 2-Asaram) is convicted for offence punishable under section 323 of IPC on the basis that it is proved that he assaulted P.W.4-Mala Belsare with stick. I deemed it appropriate to notice the broad contours of the prosecution case and to re-appreciate that part of the evidence on the basis of which the learned Sessions Judge has convicted accused 1 and accused 2 under section 324 and 323 of the IPC respectively.
6] One Ramkisan s/o Subhedar Belsare married Bhagirathi alias Baghai the daughter of accused 1-Shobharam Kasdekar. Ramkisan went to Mumbai for work leaving Bhagirathi at the residence of his father Subhedar. Ramkisan returned from ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:19 ::: apeal284.04.J.odt 5 Mumbai to Sawalkheda, his native place, on 09.03.1998. The case of the prosecution is that between 08:00 p.m. to 09:00 p.m. on 10.03.1998 accused along with other family members entered into an altercation with Ramkisan and his father making an issue of Ramkisan having left Bhagirathi at his father's house when he left for Mumbai.
7] The prosecution case is that the accused 1-Shobharam was armed with an axe and so was accused 6-Nandu. The accused 2-Asaram and others were armed with sticks or lathis. In the assault Ramkisan Subhedar Belsare, Tarasingh, Salku Bethekar and Mala Belsare suffered injuries.
8] Let me now consider the evidence on the basis of which the learned Sessions Judge has convicted accused 1-Shobharam for offence punishable under section 324 of IPC. The learned Sessions Judge has held that the prosecution has proved that accused 1-Shobharam assaulted P.W.5-Tarasingh with an axe. The learned Sessions Judge has based the said finding on the evidence of P.W.5-Tarasingh and the seizure of an axe from accused 1-Shobharam which according to the prosecution was ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:19 ::: apeal284.04.J.odt 6 found to be stained with blood in the Chemical Analyzer's report.
Having given my anxious consideration to the judgment impugned, I must record my inability to uphold the finding of the learned Sessions Judge that the prosecution has proved that accused 1-Shobharam assaulted P.W.5-Tarasingh with an axe. The statement in the examination-in-chief of P.W.5-Tarasingh that accused 1-Shobharam assaulted him with an axe is an omission. The statement ought to have been discarded on this short ground. The seizure of the axe from Shobharam is shown to have been made at 08:30 a.m. on 11.03.1998 and the seizure panchnama records that axe was produced by Shobharam. However, the witness to the seizure panchnama P.W.10 has deposed that his signature on the seizure panchnama was obtained between 01:00 to 01:30 p.m. He further admits in the cross-examination that he did not know from which accused what weapon was seized. This admission must be viewed in the context of the earlier statement that he did not know the contents of the panchnama and that the Police collected the sticks, spears etc. from the house of the accused and tied the weapons in a bundle. The learned Sessions Judge has also considered the report of the Chemical Analyzer as an incriminating material against ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:19 ::: apeal284.04.J.odt 7 accused 1-Shobharam. But then, the record reveals that two axes were sent for Chemical Analysis at Exh.3 and Exh.4. The report of the Chemical Analyzer is that while blood stains were noticed on Exh.3, axe Exh.4 did not have blood stains. Firstly, I am not inclined to attach any weight to the seizure of the axe from accused 1-Shobharam and more importantly, even if it is assumed that an axe was seized from Shobharam there is nothing on record to show with any certainty that axe on which the Chemical Analyzer noticed blood stains was the axe was seized from accused 1-Shobharam.
9] In the light of what is noted supra, I have no hesitation in holding that there is no incriminating material brought on record to prove that accused 1-Shobharam assaulted Tarasingh with an axe. The prosecution has not proved the offence against accused 1-Shobharam much less beyond reasonable doubt and accused 1-Shobharam deserves to be acquitted for offence punishable under section 324 of IPC. 10] The accused 2-Asaram is convicted for offence punishable under section 323 of IPC on the basis of the testimony ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:19 ::: apeal284.04.J.odt 8 of P.W.4-Mala. Be it noted that at one stage in the judgment the learned Sessions Judge has disbelieved prosecution witnesses 1 to 5 holding that their evidence suffered from too many infirmities. Be that as it may, although P.W.4-Mala has stated that she was assaulted by accused 1-Shobharam, accused 6-Nandu, accused 2-Asaram, accused 4-Balaji and accused 3-Gangaram, the learned Sessions Judge was pleased to acquit the others named and to convict accused 2 in view of the seizure of a stick from accused 2-Asaram on which blood stains were noticed by the Chemical Analyzer. The seizure panchnama is at Exh.91. Again, the seizure is shown to be on production by Asaram of a stick at 09:10 a.m. on 11.03.1998. This seizure also must be discarded in view of the evidence of the panch to the seizure P.W.10 which evidence is noted supra. Moreover, five bamboo sticks were sent for Chemical Analysis at Exhibits 1, 2, 5, 6 and 7. Blood is detected only on Exh.1. Again, there is no evidence on record to prove that Exh.1 stick was the stick which according to the prosecution was produced by accused 2-Asaram. P.W.4-Mala is found to be by and large and unreliable witness. I do not consider it safe to uphold the conviction of accused 2-Asaram on the basis of the evidence of P.W.4-Mala, particularly as the others ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:19 ::: apeal284.04.J.odt 9 named by her as assailants are acquitted and the reasons recorded by the learned Sessions Judge for convicting accused 2-Asaram are found to be untenable.
11] In conclusion, the appeal must succeed. The judgment impugned is set aside and the accused 1 and 2 are acquitted of offence punishable under section 324 and 323 of the IPC respectively.
12] The bail bonds shall stands discharged.
13] The fine paid by the accused, if any, be refunded to
them.
14] The appeal is allowed.
JUDGE
NSN
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