Sheshrao Sakharam Gawali (In ... vs The State Of Maharashtra Through ...
2016 Latest Caselaw 1078 Bom

                                           1                 Apeal461-13.odt        



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                                   NAGPUR BENCH : NAGPUR




                                                   
                           CRIMINAL APPEAL NO.461/2013
                                       ...


    1. Sheshrao Sakharam Gawali,




                                                  
       Aged about 50 years,

    2. Vitthal Sheshrao Gawali,
       Aged about 22 years,




                                               
         All R/o Ekamba, Tq. Malegaon,
         District Washim.    
         (Presently in Central Prison,
         Amravati).                               ..             APPELLANTS
                            
                                   .. Versus ..
      

    The State of Maharashtra,
    through Police Station Officer,
   



    Police Station Shirpur, Tq. Malegaon,
    District Washim.                              ..            RESPONDENT





    Mr. S.D. Chande, Advocate for Appellant No.1.
    Mr. Mahesh Rai, Advocate for Appellant No.2.
    Mr. M.J. Khan, Additional Public Prosecutor for Respondent.

                                   ....





                  CORAM : B.R. Gavai & Mrs. Swapna Joshi, JJ.

DATED : April 01, 2016.

ORAL JUDGMENT (per B.R. Gavai, J. )

1. The appeal takes exception to the judgment and order

passed by the learned Additional Sessions Judge, Washim in

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Sessions Trial No.93 of 2011 thereby convicting both the appellants

for the offences punishable under Sections 302 and 307 read with

34 of the Indian Penal Code and sentencing them to suffer

imprisonment for life and to pay a fine of Rs.1000/- each and in

default to suffer simple imprisonment for 3 months and also

sentencing to suffer rigorous imprisonment for 10 years and to pay

a fine of Rs.1000/- each and in default to suffer simple

imprisonment for 3 months.

2.

The prosecution case in brief is thus:-

The first informant PW3 Ashok and the appellant

Sheshrao are real brothers. Deceased Ganesh was the son of PW3

Ashok whereas appellant Vitthal is the son of appellant Sheshrao.

Sheshrao and Ashok were two of the four sibling. The other brother

Niwrutti was expired and the fourth brother was Eknath. The lands

belonging to them were partitioned. Eknath had sold one acre of his

agriculture land to accused Sheshrao. However, it was the stand of

PW3 that all brothers had a joint share in the mango tree which was

situated in the field purchased by Sheshrao. Sheshrao had cut

some branches of mango tree. When PW3 Ashok had come to his

field, there was an altercation between PW3 Ashok and Sheshrao on

cutting down the branches of mango tree. Due to that, there was a

quarrel. PW3 Ashok and his son deceased Ganesh were doing work

in the field. Sheshrao called his son Vitthal by giving message on

mobile. After half an hour, Sheshrao, Vitthal and the wife of

3 Apeal461-13.odt

Sheshrao accused no.3 Bhagirathi came near Ashok and Ganesh

and picked up the quarrel. It is the prosecution case that the

appellants assaulted both the deceased as well as PW3 by an axe,

as a result thereof Ganesh died on the spot whereas PW3 Ashok

sustained severe injuries. PW3 brought Ganesh to the house in a

bullock-cart. The aforesaid incident was disclosed to Police Patil

PW5 Ramesh Gawali. Ramesh Gawali informed about the incident

to Police Station Shirpur about which Sana entry was taken in the

station diary which is at Exh.104.

ig In the meantime, taking into

consideration the serious condition of PW3 Ashok, he was initially

brought to Malegaon Hospital. He was examined by PW6 Dr.

Gajanan Gawande. A preliminary treatment was given to him and

thereafter he was referred to Akola. In Akola, he was admitted to

Ozone Hospital.

3. In the meantime, upon receipt of the information, PW8

P.I. Prakash Shelke went to the spot, prepared inquest of the dead

body and brought the dead body to Malegaon for post mortem. He

received information with regard to the injured Ashok being

admitted in Ozone Hospital at Akola. He recorded his oral

statement. On the basis of the said oral statement, the first

information report vide Crime No.66 of 2011 came to be registered

for the offence punishable under Section 302, 307 read with 34 of

the Indian Penal Code. The investigation was set in motion. At the

conclusion of the investigation, a charge-sheet came to be filed in

4 Apeal461-13.odt

the Court of the Judicial Magistrate First Class, Malegaon. Since the

case was exclusively triable by the Sessions Judge, the same came

to be committed to the learned Sessions Judge, Washim.

4. Charge was framed against the three accused below

Exh.31. The accused pleaded not guilty and claimed to be tried. At

the conclusion of the trial, the learned trial Judge acquitted accused

no.3 Bhagirathi of all the charges and convicted and sentenced both

the appellants as aforesaid. Being aggrieved thereby, the present

appeal.

5. Mr. S.D.Chande, learned counsel appearing on behalf of

appellant no.1 and Mr. Mahesh Rai, learned counsel appearing on

behalf of appellant no.2 submitted that the prosecution case is

totally unbelievable. The learned counsel submitted that the

prosecution has suppressed the material facts. It is submitted that

though Ashok sustained injuries at around 9.30 a.m. and thereafter

was brought to Malegaon at around 10 a.m. , he was admitted in

Ozone Hospital at around 5 p.m. He submits that the distance

between Malegaon and Akola can be covered at the most in two

hours. It is submitted that as to where PW3 Ashok was in between

10 a.m. and 5 p.m. has been suppressed by the prosecution. It is

submitted that PW6 has also admitted that he has given the

intimation regarding the incident to Malegaon Police Station,

however, the same has been suppressed. The learned counsel

5 Apeal461-13.odt

submitted that the possibility of PW3 making up his mind during the

course of the day and falsely implicating the appellants cannot be

ruled out. He submits that as to whether PW3 was in a position to

make a statement in view of serious injuries sustained by him is

itself a matter which is under a shadow of doubt. It is further

submitted that except the evidence of PW3 Ashok, who is

undoubtedly an interested witness having inimical terms with the

appellants, there is no material to connect the appellant with the

crime in question. ig It is, therefore, submitted that the appeal

deserves to be allowed and the appellants acquitted.

6. Mr. M.J. Khan, learned Additional Public Prosecutor on the

contrary submitted that the evidence of PW3 is trustworthy, reliable

and cogent. It is further submitted that there are other

corroborating factors like the recovery of an axe at the instance of

the accused Vitthal, Chemical Analyser report finding, the blood

stains on the person of the accused and, therefore, no interference

is warranted with the finding of conviction.

7. With the assistance of the learned counsel appearing on

behalf of the appellants and the learned Additional Public

Prosecutor, we have scrutinized the entire evidence on the record.

8. The prosecution case mainly rests on the ocular

testimony of PW3 Ashok, the injured witness and the father of the

6 Apeal461-13.odt

deceased. His testimony is sought to be attacked on the ground

that he is the interested witness and the conviction based on the

basis of solitary witness is not sustainable. By now it is settled

principle of law that merely because the witness is interested

witness cannot be a ground for discarding the testimony. The only

requirement is that the testimony of such a witness should be

scrutinized with a greater caution. If the evidence of such a witness

after careful scrutiny is found to be truthful, trustworthy and cogent,

a conviction could be based on the basis of the evidence of such a

witness. It is also equally settled that if the testimony of solitary

witness is found to be trustworthy, reliable and cogent, conviction

on the basis of such a testimony would also be permissible.

9. In the light of these principles, we will have to scrutinise

the evidence of PW3 Ashok. PW3 in his evidence narrates about he

asking Sheshrao as to why he cut down the green mango tree and

thereafter accused Sheshrao picking up the quarrel. He states that

thereafter he returned to his field. He and his son were loading the

bullock-cart with fuel wood. Sheshrao phoned to his son Vitthal and

called him. It was about 8.30 a.m. The accused Sheshrao, Vitthal

and Bhagirathi came near them and picked up a dispute. Accused

Sheshrao and Vitthal were armed with axe. They both started

assaulting his son Ganesh with the help of axe. They employed the

blows of axe on the rear side of neck, head, shoulder, left thumb

and all over the body of Ganesh. He further states that accused

7 Apeal461-13.odt

Sheshrao and Vitthal also assaulted him by axe on his head, left

side of face, shoulder and left wrist. The tenor of his cross-

examination would reveal that the defence of the appellants was

that the assault is not made by them but made by other brother

Eknath with whom Sheshrao had inimical terms. We find that in

spite of the witness being put to rigorous of cross-examination, not

much damage has been done in his evidence. It is to be noted that

the witness is an injured witness and, therefore, his presence on the

spot cannot be doubted. We further find that the testimony of this

witness is reliable, cogent and trustworthy to a great extent. No

doubt that the conviction can also be based on the testimony of

solitary witness if his evidence is found to be reliable, trustworthy

and cogent. However, it is always prudent to find some

corroboration to the testimony of a solitary witness.

10. It will be relevant to refer to the evidence of PW5 Ramesh

Gawali. The said witness is a Police Patil and he states that at

around 9.30 to 10 a.m., Ashok Gawali came with a bullock-cart in

which his son Ganesh was lying. He further states that Ashok

Gawali raised an alarm, saying that his son was murdered. He

further states that when Ashok Gawali was stationing his bullock-

cart near his house, he and many other villagers reached near the

bullock-cart. He further states that he saw that there was excessive

bleeding over the person of Ganesh and he was no more. He

further states that Ashok Gawali was in injured condition and at that

8 Apeal461-13.odt

time he told them that accused Vitthal and Sheshrao assaulted

them by means of axe and accused Bhagirathi beat them by stones.

Except giving a vague suggestion in the cross-examination that he

was at cross terms with the accused and that he is deposing

falsely, nothing damaging could be elicited in the testimony of this

witness. It could thus be seen that the testimony of this witness

corroborates the evidence of PW3.

11. We further find that the first information report also

corroborates the testimony of PW3 Ashok. His testimony is sought

to be attacked on the ground that there is inordinate delay in

lodging the first information report and the question as to whether

PW3 was conscious or not is itself doubtful.

12. A mere delay in lodging the first information report would

not always be fatal to the prosecution. It will depend upon the fact

and circumstances of each case. In the present case, PW3 Ashok

had sustained serious injuries and, therefore, the first priority of his

relatives would have been to take him to the hospital and give him

immediate medical treatment. As such he was initially brought to

hospital at Malegaon, from there he was taken to Ozone Hosital at

Akola. After PW8 coming to know about the same, he came to

Akola, recorded the statement of PW3 below Exh.70 and thereafter

lodged the printed first information report on the basis of said oral

report below Exh.71 However, by now it is a settled position in law

9 Apeal461-13.odt

that a printed first information report is not always a first

information report. A first information report is a report which is

received first in time at the Police Station and on the basis of which

the investigation is set in motion. A reliance in this respect could be

placed on the judgment of the Apex Court in the case of

Superintendent of Police .vs. Tapan Kumar Singh reported in

(2003) 6 Supreme Court Cases 175.

13. In the present case, it could clearly be seen that

immediately after the dead body of Ganesh was brought to the

village by PW3 Ashok, Ashok informed Police Patil PW5 Ramesh

Gawali about the incident and PW5 informed about the same by

telephone to the Police Station, Shirpur. On the basis of the

telephonic information received in the Police Station, a Sana entry is

recorded in the Station Diary at 10.05 a.m. The said station diary

entry below Exh.104 clearly shows that the information received in

the Police Station was that "in the village Ashok Sakharam Gawali,

Sheshrao Sakharam Gawali, Vitthal Sheshrao Gawali, Ganesh Ashok

Gawali had quarreled on account of sharing the yield of the mango

tree and in the said incident, the death of Ganesh Ashok Gawali had

occasioned". It could thus be seen that the very first information

received in the Police Station within an hour of the incident taking

place, clearly mentions the quarrel between the deceased and PW3

on one hand and the present appellants on the other hand and the

death of Ganesh as an outcome of the said incident. As already

10 Apeal461-13.odt

discussed hereinabove, immediately on the basis of the said station

diary entry, the Police machinery was set in motion, the

investigation officer went to the spot and on coming to know about

PW3 Ashok being hospitalized at Akola, recorded his statement at

Akola. We are, therefore, of the considered view that the

information received in the Police Station at 10.05 a.m. below

Exh.104 will have to be treated as an first information report. In

that view of the matter, we find that the first information report

clearly corroborates implication of both the appellants.

14. In that view of the matter, we have no hesitation in

upholding the involvement of both the appellants in the crime in

question.

15. That leaves us with the question as to whether both the

appellants could be convicted for the offence under Section 302 and

307 of the Indian Penal Code. As already discussed hereinabove,

PW3 is undoubtedly an interested witness. Though we find his

testimony to a great extent, to be trustworthy, reliable and cogent,

a possibility of exaggeration in the deposition cannot be ruled out.

In the cross-examination of this witness itself, a contradiction

portion mark A has been proved which reads thus:-

"In the said quarrel, Vitthal Sheshrao Gawali beat my son Ganesh on his head on rear side, neck, left shoulder, arms, and finger by means of axe so also Sheshrao assaulted me on my head, cheek

11 Apeal461-13.odt

and chest by means of axe and rod. The above portion mark is correct. Witness again says that

they both accused (Vitthal and Sheshrao) assaulted we duo by means of axe."

It could thus be seen that the first version given by this witness is

that the assault on Ganesh was by appellant Vitthal, whereas he

was assaulted by appellant Sheshrao. We find that in view of this

contradiction duly proved, a benefit of doubt will have to be given

to accused Sheshrao. ig By now it is a settled law that the first

information report can be used for the purpose of corroboration or

contradiction. In view of the possibility of PW3 giving an

exaggerated version, it cannot be ruled out that it was only

accused Vitthal who had assaulted Ganesh and it was accused

Sheshrao who had assaulted PW3 Ashok. We, therefore, find that

the conviction of the appellant Sheshrao for the offence punishable

under Section 302 of the Indian Penal Code would not be tenable.

Equally we find that since Vitthal had assaulted only deceased

Ganesh, his conviction for the offence punishable under Section 307

of the Indian Penal Code would not be sustainable.

16. That leaves us to examine as to whether the conviction of

the appellant Vitthal for the offfence punishable under Section 302

of the Indian Penal Code needs to be maintained or it could be

altered to some lesser offence. The perusal of the post mortem

report of deceased Ganesh would reveal that he had received about

12 Apeal461-13.odt

13 injuries. No doubt that it appears that the incident has occurred

in a sudden fight in the heat of passion upon a sudden quarrel,

inasmuch as it had taken place on the boundary of the agriculture

fields of the appellants and PW3 Ashok. Even it is the case of the

prosecution that the quarrel had preceded the incident. Since the

weapon used is an axe, which is commonly used by the

agriculturist, it cannot be said that the prosecution has proved that

there was any premeditation. However, taking into consideration

the nature of the injuries, it cannot be said that the appellant Vitthal

has not taken undue advantage or not acted in a cruel or unusual

manner. Had he stopped at giving one or two blows, case could

have come under Exception 4 of Section 300 of the Indian Penal

Code. However, in view of the nature of injuries sustained by

deceased Ganesh, we find that the said Exception cannot be

invoked in the present case.

17. In the result, the appeal is partly allowed. The conviction

of the appellant Vitthal for the offence punishable under Section

302 of the Indian Penal Code and the sentence imposed by the

learned trial Judge is maintained. However, the appellant Vitthal is

acquitted of the offence punishable under Section 307 of the Indian

Penal Code.

18. The conviction of the appellant Sheshrao for the offence

punishable under Section 302 of the Indian Penal Code is set aside.

13 Apeal461-13.odt

The appellant Sheshrao is acquitted of the charge under Section

302 of the Indian Penal Code. His conviction for the offence

punishable under Section 307 of the Indian Penal Code is

maintained. However, the sentence is reduced to 7 years R.I. The

rest of the order including fine etc. is maintained.

         (Mrs. Swapna Joshi, J. )              (B.R. Gavai, J.)




                                        
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    halwai/p.s.