CRI.APPEAL.769.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO.769/2003
1) Madhukar s/o Roopsingh Rathod
Aged about 42 years
2) Babusingh s/o Lalsingh Rathod
Aged about 47 years
3) Charan s/o Lalsingh Rathod
Aged about 40 years
4) Uttam s/o Digambar Rathod
Aged about 32 years
5) Ramesh s/o Remani Pawar
Aged about 32 years
6) Prakash s/o Ramaji Rathod
Aged about 36 years
All R/o Kondari
Police Station : Mahagaon
Dist.Yavatmal. .. APPELLANTS
versus
The State of Maharashtra
Through Police Station Officer, Mahagaon
Dist. Yavatmal. .. RESPONDENT
...............................................................................................................................................
Mr. S.D. Dharaskar, Advocate for the appellants
Mr. N.H. Joshi, Additional Public Prosecutor for respondent -State
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 26th September, 2017 ORAL JUDGMENT:
::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 :::
CRI.APPEAL.769.03 2
1. This Appeal is preferred at the instance of six appellants/ accused. However, during the pendency of the Appeal, accused no.4-Uttam Digambar Rathod, expired.
2. Being aggrieved by the judgment and order dated 03.12.2003 in Sessions Trial No.113/2000 delivered by the learned Ad-hoc Additional Sessions Judge, Pusad, convicting the appellants (hereinafter referred to as 'the accused') for the offences punishable under sections 147,148, 324 read with Section 149 of the Indian Penal Code and sentencing them to suffer S.I. for one year each, under each of the Sections, which are directed to run concurrently, the present Appeal is filed.
3. I have heard Mr. S.D.Dharaskar, learned counsel for the appellants, and Mr. N.H.Joshi, learned Additional Public Prosecutor for the Respondent-State. With their assistance, I have gone through the record and proceedings of the case, minutely.
4. Brief facts giving rise to the instant Appeal may be summarized as under:-
The complainant-Sudhakar Rathod (PW1) is the son of injured Dhansingh Rathod (PW2). They were residing at village Kondari, Tq.Mahagaon, Dist. Yavatmal. The accused 1 to 6 are also residents of the same village. It is the case of the prosecution that on 14.10.2000 at about 11.00 am PW2 Dhansingh was sitting in courtyard of his house and at the relevant time the complainant PW1-Sudhakar was having a lunch in his house. Since the complainant PW1-Sudhakar heard noise of commotion, he came out of the house and saw that accused 1 to 6 were beating Dhansingh (PW 2). The accused no.1 was saying to Dhansingh as to why he always ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 ::: CRI.APPEAL.769.03 3 talks against the accused. On this, the accused no.1 delivered a blow of stick on the head of PW2-Dhansingh; accused no.2 gave a blow of stick on the right hand shoulder of PW2-Dhansingh; accused no.3 delivered a stick blow on the right thigh and right heap of PW2 and all other accused assaulted Dhansingh, by means of sticks. In the meantime, PW1 Sudhakar went to rescue his father PW2. At that time, accused 4 to 6 assaulted him too and as a result of which, he also sustained injuries on both his legs. It is the case of the prosecution that PW1 then ran away from the place of the incident. He boarded one jeep, came to the place of the incident and took his father in the said jeep and proceeded to the Hospital at Mahagaon. PW2 was referred to Yavatmal and from Yavatmal, to a Hospital at Nagpur.
5. It is the case of the prosecution that the PW1-Sudhakar was also examined by the Doctor at the Hospital. He lodged the complaint against the accused persons on the same day. As per the case of the prosecution, the accused assaulted PW2 on account of political rivalry due to Gram Panchayat elections.
6. At the relevant time, PW9-Mahadeo, Head Constable was attached to Police Station, Mahagaon. He recorded the complaint (Exh.41) of PW1-Sudhakar and on the basis of said complaint he registered the offence. PW9 referred the injured Dhansingh (PW 2) for medical examination at Primary Health Centre, Mahagaon. P.I. Yusufpeer Sayyad (PW12) visited the place of the incident and recorded the spot Panchnama (Exh.53). He recorded the statements of the witnesses. He arrested the accused persons. On 15.10.2000 he seized the weapons involved in the offence i.e. sticks under Panchnama (Exhs. 55 to 60 respectively). He seized the bloodstained ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 ::: CRI.APPEAL.769.03 4 clothes of the injured (Exh.61) on 20.10.2000. PW12 recorded the statements of the witnesses. He sent the clothes of the victim to C.A. office for its analysis. After completion of investigation, he submitted the charge-sheet in the Court. The case was committed to the court of Sessions. The learned trial Judge framed the charge and on analysis of the evidence and after hearing both the sides, convicted the accused, as aforesaid. Hence this Appeal.
7. Shri S.D. Dharaskar, learned counsel for the appellants argued that the learned trial Judge has not considered the testimony of the witnesses in its right perspective and has erroneously convicted the accused. Shri N.H. Joshi, the learned APP contended that the learned trial Judge has rightly convicted the accused.
8. In order to bring home the guilt of the accused, the prosecution has examined in all 13 witnesses, out of which the relevant witnesses are PW 2-Dhansingh Rathod, PW1-Sudhakar Rathod, PW3-Sukhdeo Pardhi, PW4-Shankar Rathod and the Investigating Officer PW12 Yusuf Sayyad.
9. As far as the testimony of the injured PW2-Dhansingh is concerned, he has stated that on the date of the incident at about 11.00 am, he was sitting in the courtyard of his house, accused Madhukar, Babusingh, Uttam, Prakash, Ramesh and Charan approached him, armed with sticks and they started quarreling with him. Accused Madhukar asked him as why he was always taking against them. PW2 made query as to why they have come to his house. On this Madhukar threatened that he wanted to finish him and delivered a blow of stick on his head. He instigated the other accused persons to finish him off. On this, accused-Babusingh delivered a blow on right ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 ::: CRI.APPEAL.769.03 5 hand shoulder and the other accused persons started assaulting him by means of sticks. He received a fracture injury on right hand thumb as he tried to save himself. The accused Charan assaulted PW2 by means of stick on his right thigh and hip. Accused-Charan also assaulted by means of stick on his right side ribs. Thus, in this manner, PW 2 sustained injuries on his entire body. He sustained bleeding injury on his head due to which his clothes were stained with blood. PW2 stated that at the time of the incident the ladies from his family started shouting and on hearing of their shouts, his son Sudhakar,in order to rescue PW2 interfered. The accused persons also assaulted Sudhakar. Sudhakar (PW1) ran away from the place of incident in order to save himself. Sukhdeo (PW 3) also rushed to the spot, so also Anusuyabai (PW8) also came to the spot and offered water to PW2. After some time, his son Sudhakar (PW 1) came with a jeep and took him to the Police Station, Mahagaon. The complaint was lodged by his son Sudhakar(PW1). In the cross-examination, the testimony of PW2 is not shattered. It was suggested as there was quarrel between himself and accused-Madhukar on account of the election, he has falsely implicated the accused persons in the present case. There are no material contradictions and omissions in his version.
10. The testimony of PW1-Sudhakar is corroborated with the testimony of PW2-Dhansingh on all material aspects. According to PW1-Sudhakar, who is the complainant and injured, when he was taking meals inside his house with his family members, he heard shouts from outside his house. Hence he rushed and saw that accused Madhukar, Babusingh, Charan, Uttam, Ramesh and Prakash were assaulting ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 ::: CRI.APPEAL.769.03 6 his father by means of stick in the courtyard of his house. Accused-Madhukar delivered a blow of stick on the head of his father while accused Babusingh delivered a stick blow on the right hand shoulder of his father; accused-Charan delivered a stick blow on the right thigh of his father. When PW1 tried to rescue his father, accused Uttam, Ramesh and Prakash assaulted PW1 by means of sticks as a result of which he sustained injuries on both of his legs. He ran away towards the field due to the fear of the accused persons. Then he boarded one jeep, picked up his father and proceeded to Police Station, Mahagaon. His complaint was recorded by police (Exh. 41). PW1 categorically stated that the incident took place due to the political rivalry of allegations of Gram Panchayat. The wife of his brother had contested the Gram Panchayat elections and it he said elections the Sarpanch of the village was elected form his political group and hence on account of political rivalry and enmity the accused persons had assaulted them.
11. In the exhaustive cross-examination of PW1-Sudhakar, few improvements were pointed out in his version with regard to the fact that the accused Madhukar delivered a stick blow on the head of his father, and accused-Babusingh gave a blow of stick on the shoulder of his father. PW1 clarified that the accused persons had surrounded him and simultaneously they were assaulting his father by means of sticks. The testimony of PW1-Sudhakar is not shattered in the cross- examination on material aspects and is in consonance with his complaint (Exh. 41).
12. The testimony of PW1-Sudhakar and PW2-Dhansingh is also supported by PW3-Sukhdeo and PW4-Shankar Rathod. PW3 stated that when he heard the ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 ::: CRI.APPEAL.769.03 7 noise, he came out of the house and saw that Madhukar, Charan, Babusingh, Prakash, Ramesh and Uttam assaulting Dhansingh(PW2) by means of sticks. Dhansingh fell on the ground due to the said assault. Dhansingh sustained injuries on his head and due to bleeding injury, his clothes were stained with blood. PW3 stated that Sudhakar PW1 was also hit by the sticks. Hence he ran away from the spot. PW3 categorically stated that the accused persons had assaulted PW1 and PW2 due to political rivalry on account of the Gram Panchayat elections. His testimony is not shattered in the cross-examination. According to him, the family members of the complainant were present at the place of the incident and no one else was was at that place.
13. Thus, the testimony of PW 1-sudhakar, PW2-Dhansingh and PW3- Sukhdeo corroborate with the testimony of each other and there are no material discrepancies in their version. Their testimony unequivocally shows that all the accused persons had assaulted PW2- Dhansingh by means of sticks and accused nos. 4 to 6 had assaulted PW1- Sudhakar that too by means of sticks.
14. The testimony of PW4-Shankar who is the panch witness on the point of seizure of sticks from all accused, has categorically stated about the seizure of the sticks in the respective houses of the accused persons at their instance. The memorandum panchnamas as well as seizure panchnamas were drawn accordingly at Exhs 55 to 61 respectively.
15. PW10-Dr.Ganesh Rajkondwar, the Medical Officer deposed that he examined Dhansingh (PW 2) and found the following injuries on his body :- ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 :::
CRI.APPEAL.769.03 8
1) Lacerated wound over scalp on right side. Occipital parieto region slightly oblique, aged irregular, bone deep, no history of bleeding through nose and ear. 3" x 1/2" present bleeding present. Caused by hard and blunt object. Age of injury within 3 to 4 hours. The said injury may heal within 7 to 10 days if no complications arise.
2) History of fracture right acromio clavicular joint and lower 1/3rd clavicular cripitious present. Caused by hard and blunt object. Age of injury within 3 to 4 hours. The above injury is associated with contusion over right side shoulder joint anteriorly oblique 2" x 1" caused by hard and blunt object. Patient is referred to General Hospital Yavatmal for X-ray of right shoulder joint A.P. And is lateral view to rule out fracture and needful treatment and opinion regarding time required for healing if fracture detected on X-ray.
3) contusion over right heap joint 3 "x 2" roughly circular. Movement of right heap joint are painful and restricted. Fracture /dislocation of right heap joint, caused by hard and blunt object. Age of injury within 3 to 4 hours. Patient is referred to General Hospital for X-ray heap joint (right) A.P. and lateral view it rule out fracture and needful treatment and opinion for time required for healing if fractures dislocation detected on X-ray.
4) Contusion with laceration over left leg middle 1/3rd region posterior 1" x 1/2" caused by hard and blunt object. Age of injury within 3 to 4 hours, may heal within 7 days if no complications arise.
5) Lacerated wound over right palm, below the base of right thumb. Roughly circular 1 cm ½" caused by hard and rough object. Age of injury within 3 to 4 hours. May heal within 7 days if no complication arise."
16. PW10 -Dr.Ganesh Rajkondwar issued the medical certificate Exh.72. He ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 ::: CRI.APPEAL.769.03 9 failed to state whether the patient had received any fracture injury. He stated that the injuries were possible by sticks. PW 10 categorically stated that all the injuries were simple in nature.
17. The Medical Officer PW11-Dr.Rajesh Rudrawar deposed that on 20.10.2000, he examined the patient, namely Sudhakar and found the following injuries on his person:
1) Contusion dorsal aspect of left popletiel fossa horizontally located. It was caused by hard and blunt object. Age of injury was 3 to 4 days. It may heal within 2 to 3 days if no complication arose.
2) Contusion left leg dorsal aspect over calf muscles 3 to 4 in jhes in length. Caused by hard and blunt object. Age of the injury 3 to 4 days. Heal within 2 to 3 days if no complication arose. No other injuries were detected on clinical examination."
PW 11 issued medical certificate Exh.77. Thus, the medical evidence corroborates testimony of the injured witnesses as well as the eye witness PW 3-
Sukhdeo. The seizure of sticks indicates that the accused persons had used those sticks while assaulting the injured persons. The prosecution has proved that the accused intentionally assaulted PW1-Sudhakar and PW2-Dhansingh, by means of sticks.
18. Thus, the learned trial Judge has rightly convicted the accused. No perversity or illegality is noticed in the impugned judgment and order and as such no no interference is called for. Hence the following order:-
ORDER ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 ::: CRI.APPEAL.769.03 10
i) Criminal Appeal No.769/2003 is dismissed.
ii) The judgment and order judgment and order dated 03.12.2003 in Sessions Trial No.113/2000 delivered by the learned Ad-hoc Additional Sessions Judge, Pusad, is hereby maintained.
iii) The appellant/accused to surrender within a period of four weeks, for undergoing the remaining sentence. Needless to mention, appellant-accused No.4- Uttam is dead.
JUDGE sahare ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 00:41:50 :::