Bombay High Court

Rangnath Sahebrao Jadhav & Ors vs State Of Maha on 3 August, 2016

Bench: A.I.S. Cheema

                                                                     cria568.03
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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                                   BENCH AT AURANGABAD




                                                  
                         CRIMINAL APPEAL NO.568 OF 2003




                                                 
     1) Rangnath s/o Sahebrao Jadhav,
        Age-48 years, Occu:Agriculture,
        R/o-Kumbharwadi, Tq-Georai,




                                         
        Dist-Beed,

     2) Radhakisan s/o Sahebrao Jadhav,
                             
        Age-38 years, Occu:Agriculture,
        R/o-Kumbharwadi, Tq-Georai,
        Dist-Beed.
                            
                                     ...APPELLANTS
                                     (Orig. Accused)

            VERSUS             
      


     The State of Maharashtra   
   



                                     ...RESPONDENT

                          ...
        Mr. Govind Kulkarni Advocate h/f. Mr. R.S. 





        Deshmukh Advocate for Appellants.
        Mr. R.V. Dasalkar, A.P.P. for Respondent. 
                          ...       





                   CORAM:   A.I.S. CHEEMA, J.


        DATE OF RESERVING JUDGMENT  : 19TH JULY,2016  

        DATE OF PRONOUNCING JUDGMENT: 3RD AUGUST, 2016

                                      




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     JUDGMENT :

1. The appellants - original accused

(hereafter referred as "accused") have been

convicted in Sessions Case No.161 of 2002 by IVth

Ad-hoc Additional Sessions Judge, Beed on 5th

August 2003 for offence punishable under Section

307 and Section 324 read with 34 of the Indian

Penal Code, 1860 ("IPC" in brief).

2. The case of prosecution, in short, is as

follows:-

A). On 23rd February 2002 PW-2 Jakuram Dahale

(hereafter referred as "complainant") was admitted

at Civil Hospital, Beed. PW-11 Sukhdeo Landge,

A.S.I. attached to the police out-post, Civil

Hospital, Beed received M.L.C. letter from the

doctor and he went and recorded statement in the

nature of dying declaration (Exhibit 31) of the

complainant. The statement was forwarded to the

police station, Georai, Dist-Beed and Crime No.35

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of 2002 came to be registered on 24th February

2002 at 8.30 p.m. The complainant gave statement

claiming that he was resident of Kumbharwadi, Tq.

Georai and was working as a truck driver. He gave

details about his family. It is stated in

Exhibit 31 that his mother did not have a brother

or sister and her father had 17 acres land. Her

father expired in 1993 and for 21 years his land

was being cultivated by the complainant and his

family. The cousin-brothers of his mother had

nothing to do with the field property and they

were not heirs of his maternal grand-father.

Still, the accused persons who are cousin maternal

uncles, forcibly started cultivating the said

field. His maternal grand-mother Sarubai Jagannath

Jadhav filed complaint to police station against

them and case was filed in the Sessions Court.

There were orders that nobody should enter the

land. Still, the accused were violating the Court

orders and cultivating the land. They have sown

Cotton, Jawar, Bajra in the filed and had come to

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cut the crop. On 23rd February 2002, the

complainant and his brother Arjun (PW-3) went

there and told them why they are cutting the crop

and they should not cut the same. Both the accused

abused the complainant and his brother. Accused

No.1 Rangnath with the help of sharp axe which he

had, gave blow on neck of complainant to his right

side causing deep injury. Similarly, accused No.2

Radhakisan with the help of stick hit complainant

on the head, right hand arm, thigh of right leg

and calf, causing invisible injuries and also gave

blow on nose and lips causing injury. At that time

his brother Arjun intervened. Accused No.2

Radhakisan hit him on the head, left hand, left

leg by stick and injured Arjun. One Bappasaheb

Ramu Bhate, Vitthal Nivrutti Jadhav (PW-7) saw the

incident and intervened. His parents then came

there and seeing them the accused persons ran away

taking the axe and stick. The persons who had

intervened and his parents brought him and Arjun

to the civil hospital and admitted them at 8.00

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p.m. Thus, the statement.

B). On receipt of above statement recorded as

dying declaration, PW-8 Baliram Jadhav (Head

Constable) registered the offence. There after

P.I. Gautam Fasle (PW-12) investigated the crime.

The accused were arrested. The P.I. went to the

spot on 25th February 2002 and did spot panchnama.

The accused persons were in police custody and

they agreed to give discovery of the axe and stick

which they had used in the incident. The concerned

memorandums were recorded and discovery of the axe

and stick was done at the instance of the accused

persons, regarding which panchnamas Exhibit 34

to 37 came to be recorded on 26th February 2002.

On 27th February 2002 clothes of the complainant

came to be seized (Exhibit 38) which had blood

stains. The clothes of the accused persons were

seized (Exhibit 39) on 28th February 2002. Their

clothes had blood stains. At the hospital Doctor

Vinod Ostawal (PW-1) had examined both the accused

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on 23rd February 2002 at 8.00 p.m. Their Medical

Certificates Exhibit 28 and 29 came to be

collected. Statements of witnesses were recorded.

The seized articles were sent to C.A. and C.A.

reports were obtained. After the investigation,

charge-sheet came to be filed.

3. The accused persons pleaded not guilty to

the offence. Their defence is of total denial.

According to them Tukaram Jadhav and Sarubai had

filed Civil Suit against them which was decided in

their favour and rather the complainant had stolen

their crop for which they had filed criminal case.

The complainant is a worker of Shiv Sena and

brought about false case against them.

4. In the trial Court evidence of twelve

witnesses was recorded. The trial Court considered

the State case and the defence and convicted the

accused as mentioned above.

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5. I have heard the counsel for Appellants-

accused as well as learned A.P.P. for State. It

has been argued by the learned counsel for the

Appellants-accused that although the offence is

stated to be of 23rd February 2002, the F.I.R. was

registered only in the evening of 24th February

2002. Apart from Exhibit 31 which was recorded as

if it is a dying declaration, in the record of the

trial Court, there was yet another document, copy

of which was available in the record, which was

dying declaration dated 24th February 2002. In

that dying declaration, the injury to the neck was

alleged to have been caused by hitting from

behind. In that dying declaration, there were no

details like PW-3 Arjun being there as part of the

incident and Arjun also being injured. It is

argued that the medical certificates relied on in

favour of the complainant and his brother Arjun

were issued after more than a month of

examination. The original record on the basis of

which such certificates were issued, was not

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brought before the Court. The witnesses gave

different versions regarding alleged assault and

even different spots were stated regarding the

incident taking place. PW-6 Gangubai Dahale, minor

sister of the complainant was got-up witness as

she could not have been on the spot when alleged

incident took place. The complainant admitted that

persons with surname Jadhav in the village were

all from Shiv Sena and it was admitted fact that

there were two groups and the accused did not

belong to Shiv Sena and the complainant and others

managed to bring about false case, it is stated.

The injuries of PW-3 Arjun were possible by fall.

The doctor accepted that stick is hard and blunt

object while the injuries of Arjun were caused by

hard and rough object. False discoveries of axe

and stick were shown. Even the property sent to

C.A. was once returned as it was not properly

wrapped and sealed. Thus the investigation on this

count deserves to be ignored. The record showed

that the copy of F.I.R. was sent to the Court

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after a delay of three days and there was no

explanation. Looking to Exhibit 31 and the other

dying declaration available in record, there was

reason to doubt as to the manner in which F.I.R.

was registered. The complainant had minor injury

to his neck and it could be self inflicted.

According to the counsel there was reason for the

complainant to falsely implicate the accused

looking to the property dispute which the

complainant and his family lost.

6. Against this, the learned A.P.P.

supported the Judgment of the trial Court.

According to him, there were two injured in the

incident and four persons were speaking regarding

the incident. Although the suit has been decided

against the family of the complainant, at many

times the actual possession is with the other

party and which requires execution etc. and thus

fault can not be found with the complainant and

his brother if they objected to the cutting of the

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crop. Learned A.P.P. submitted that the evidence

on record is reliable and the trial Court has

rightly convicted the accused persons.

7. On record, firstly there is evidence of

PW-2 complainant Jakuram. He is supported

regarding the incident by PW-3 Arjun, his brother.

PW-6 Gangubai, the sister of the complainant has

been examined, who also claimed to have reached

the spot after hearing about starting of the

incident and claimed that she also saw the whole

incident. There is yet another witness PW-7

Vitthal Jadhav who also claimed to have seen the

incident. One PW-5 Zungaram has been examined for

corroborative evidence. It is claimed that after

the incident the intervenors put the complainant

and his brother in a truck and while they were

proceeding to take them to the hospital, on the

way they picked up PW-5 Zungaram so that he could

accompany them to the hospital. They told incident

to him at that time. Thus, these are the witnesses

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regarding the incident and its follow up.

8. Complainant PW-2 Jakuram claimed that on

23rd February 2002 he and his brother namely Arjun

had gone to their field. He deposed that they

asked both the accused persons not to remove the

Jawar crop. This led to exchange of abuses and

quarrel started. Complainant deposed that accused

No.1 Rangnath then assaulted him on his right side

of neck by axe and accused No.1 also assaulted on

his nose by blunt side of the axe. He deposed that

accused No.1 assaulted him on his left hand and

right leg also. Complainant further claimed that

his brother Arjun rushed to the spot and at that

time accused No.2 Radhakisan assaulted his brother

on his head, left hand elbow by means of stick.

One Bappasaheb and PW-7 Vitthal rushed to the

spot, it is claimed.

. Keeping the above evidence of complainant

in view, if the evidence of PW-3 Arjun is read, he

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states that on 23rd February 2002 he and his

brother asked the accused not to remove the crop

from the field, and quarrel took place.

Thereafter, according to this PW-3 Arjun the

accused went away. The evidence is that after that

both the accused came back armed with axe and

stick. Thus he gives different details. He

deposed that accused No.1 assaulted complainant

Jakuram by axe on his neck and handle of axe on

his nose and also gave blows on his back and

mouth. This brother Arjun claimed that he went to

rescue, at which time accused No.2 Radhakisan

assaulted this Arjun by stick on his left fore-

arm, head, back and leg. He claimed that they

shouted and Bappasaheb and PW-7 Vitthal came there

as well as their parents came and both the accused

ran away.

9. Thus, both these witnesses i.e. PW-2

Jakuram and PW-3 Arjun claimed that accused No.1

Rangnath gave the axe blow on the neck as well as

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nose and mouth of the complainant and accused No.2

Radhakisan beat only PW-3 Arjun. This is contrary

to the complaint Exhibit 31, where it was claimed

that accused No.1 Rangnath with the help of axe

gave blow to the complainant on the neck by the

sharp side and then accused No.2 Radhakisan by

stick gave blow on the head of the complainant as

well as on his right arm, right thigh, calf as

well as hit him on the nose and lips. The evidence

of PW-1 Doctor Vinod recorded only incise wound

over right side of neck extending posteriorly and

to be muscle deep and the other injury recorded

was of contusion over the nose of the complainant.

PW-1 Doctor Vinod proved injury certificate of the

complainant at Exhibit 28 and his evidence is that

the injury No.1 which was on the neck, was

possible by hard and sharp object but that it was

simple in nature while the injury to the nose was

possible by hard and blunt object but that it was

grievous one. Thus, the oral evidence of both

these witnesses PW-2 and PW-3 read with the F.I.R.

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Exhibit 31 shows that the evidence and F.I.R. do

not match. There is major contradiction regarding

who caused the grievous injury.

10. Even regarding the injury to the neck of

Jakuram the complainant, he deposed in the cross-

examination that same was caused from back side.

The complainant was confronted with his dying

declaration and accepted that it was not mentioned

in the same that accused No.2 Radhakisan had

assaulted his brother Arjun and that it was also

not mentioned that Accused No.1 Rangnath assaulted

him on his nose by blunt side of the axe.

Although, in evidence complainant clarified that

injury given to his neck was from the back side,

the evidence of PW-1 Doctor Vinod is that on the

basis of injury No.1, position of victim and

assailant might be face to face.

11. The evidence of PW-1 Doctor Vinod, in

certificate issued as regards PW-3 Arjun,

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Exhibit 29 recorded the following 3 injuries :-

"1. C.L.W. (Contused lacerated wound) over the vertex (center of scalp), size 2 x 3 cm.

2. Contused Lacerated wound over the left forearm 1 x 1 cm.

3. Contusion over the left leg, anteriorly middle

1/3rd, 2 x 2 x 1 cm. and oval in shape."

. The Doctor stated that the injuries were

possible by hard and rough object. Now, the case

of prosecution is that the injuries were caused to

PW-3 Arjun by stick which was before the Court,

and the Doctor admitted that the stick was "hard

and blunt object" and what is meant by "hard and

rough object" would be rocky or stony surface.

Doctor admitted in cross-examination that the

injury on person of Arjun was possible by fall on

hard and rough surface. Keeping the above three

injuries mentioned in the medical certificate by

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PW-1 Vinod in view, if the evidence of PW-2

complainant Jakuram and PW-3 Arjun is seen, much

more assaults are claimed in the evidence than

what reflected in the medical certificates.

12. If the evidence of PW-3 Arjun is perused,

in cross-examination he stated that when they had

gone to the field only accused No.1 Rangnath was

present in the field. This is against what the

complainant claimed. The evidence of the

complainant was that he along with his brother

went to the field when the accused persons were

there and incident took place.

13. Although, PW-2 Jakuram claimed that he

and his brother went to the field and incident

took place there, PW-3 Arjun stated that they were

not assaulted in the field. PW-6 Gangubai, who

wanted to corroborate her brothers, claimed that

when she reached the spot, the accused were

assaulting the complainant on the side of road in

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the ditch and PW-3 Arjun was on the upper side of

the ditch and that Arjun ran away. There is yet

another version which is of PW-7 Vitthal Jadhav.

He claimed that the incident took place at the

cattle-shed of the accused. PW-9 Keshav Jadhav,

Panch of the spot turned hostile. The spot

panchnama Exhibit 55 has been proved by P.I.

Gautam Fasle. This P.I. PW-12 wants this Court to

believe that for incident which took place in the

evening of 23rd February 2002, and when the

accused were arrested only on 24th February 2002,

he went to the spot on 25th February 2002 in the

morning and still he found the spot undisturbed

and the blood stains etc. on the spot. This is

difficult to accept. However, reference may be

made to the spot panchnama Exhibit 55. It shows

that the spot was shown by Sarubai, the maternal

grand-mother of the complainant and the spot and

sketch shows that the accused persons have a house

there and the blood stains were shown to the east

of the road which was going north-south. The road

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appears to be to the west of the field concerned.

The blood stains were shown to the east beyond the

boundary of the road. As per the spot panchnama

the spot was in the Khud to the east of the road.

From the blood stains towards north at about 17

feet there is Babool tree and beyond that at 50

feet there is house of the accused persons. Thus,

the witnesses gave different versions even

regarding the exact spot. It is material to note

that where it is alleged that blood was still

found by the police, from there at about 67 feet

the house of accused is there. To recall, PW-7

Vitthal claimed that incident took place at the

cattle-shed of the accused. PW-7 Vitthal claimed

in cross-examination (Para-3) that the cattle-

sheds of the accused are on the road. The spot

panchnama does not show any such thing. Thus,

there are different versions as to where exactly

the incident took place.

14. The cross-examination of complainant

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Jakuram shows that there was dispute regarding

land between him and the accused. He accepted that

his mother namely, Gayabai and grand-mother

Sarubai had filed suit bearing No.305 of 2000

against the accused and Jagannath. He accepted

that the suit was decided against him on 18th

October 2001 and it was thereby dismissed. He also

accepted that accused No.1 Rangnath had filed

criminal case of theft of Cotton against him, his

brother and his mother on 8th November 2001. This

is before the present incident dated 23rd February

2002. He accepted that he had earlier tried to

commit suicide in Court premises at Georai on 3rd

November 2001, and for that a case is pending

against him. The F.I.R. and cross-examination of

PW-3 Arjun shows that the concerned crop in the

field had been raised by the accused. This

evidence read with the spot panchnama shows that

the accused were even residing near the spot.

15. It is quite apparent that the accused

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had earlier filed criminal case against the

complainant regarding theft of crop. The

complainant had lost the civil suit regarding the

field property in the Court. There is also

evidence that before the present incident, this

complainant had tried to commit suicide. As such,

the suggestion of the accused in the cross-

examination to this complainant that he had

himself inflicted the injury by blade to his neck,

although denied by the complainant, cannot be said

to be baseless defence. The evidence of doctor

shows that it was a simple injury. The opinion of

the doctor is that the injury was possible when

the assailant was in front of the injured. This is

not in rhyme with the evidence of the complainant

that the injury was inflicted from behind. There

is reason to doubt if the genesis of the incident

has come on record.

16. The reason why I have observed that there

is reason to doubt about the genesis of the

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incident is that the complainant PW-2 Jakuram and

his brother PW-3 Arjun deposed that they had gone

to the field and asked that the crop may not be

cut, without showing the reason for the same when

it is admitted position that they have lost in the

civil suit and the crop concerned was raised by

the accused.

17.

PW-6 Gangubai deposed that she was at the

village when she came to know that the incident

was taking place and she claimed that she rushed

to the field. Her evidence is that she reached the

field within 15 minutes of her getting the

information. This is against what PW-3 Arjun

deposed. He deposed that incident continued

for 5-10 minutes. PW-6 Gangubai however deposed as

if the complete incident unfolded in her presence.

It is not possible that PW-6 Gangubai could have

witnessed the incident in the manner in which she

claims. It is material however to see that in her

evidence she has deposed that when she reached the

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spot, scuffling was going on. Apart from her, PW-7

Vitthal also claimed that when he reached the spot

grappling was taking place between the complainant

Jakuram, PW-3 Arjun and the accused persons. This

is not deposed to by complainant PW-2 and Arjun

PW-3. In fact, PW-7 Vitthal deposed that PW-3

Arjun had fallen on the ground and that he

suffered injuries by stick after he fell down. He

further deposed that the complainant had also

fallen down and that he sustained two injuries

after falling down, on his neck and nose. PW-1

Doctor Vinod had noticed only these two injuries

on the person of the complainant. Thus, keeping

the whole evidence in view, it becomes difficult

to accept the evidence of the prosecution and

there are serious doubts as to the manner in which

the incident took place. Looking to the earlier

discussion, there is reason to doubt that the

complainant and his brother themselves may have

been the aggressive party.

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. Evidence of PW-5 Zungaram is not of much

help as he merely claimed what he was told when

asked to come along to the Hospital.

18. Coming to the evidence of investigating

officer PW-12 Gautam Fasle, I have already

observed that the spot panchnama is not without

doubts. Secondly, if his evidence is seen and read

with the evidence of PW-4 Panch Vaijinath, there

is room to doubt as to the manner in which the

investigation was done. To recall, it appears that

there was a statement of the complainant recorded

as dying declaration, on 24th February 2002,

original of which has been suppressed and in the

record of the trial Court only a carbon copy is

found, which does not match with the statement

Exhibit 31 which was treated as F.I.R. Although

Exhibit 31 claimed to be recorded on 23rd February

2002 which would be a day prior to 24th February

2002, the F.I.R. contains more details. Had F.I.R.

Exhibit 31 been recorded on 23rd February 2002 and

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the other statement was recorded on 24th February

2002, one would expect the repetition of the

details in the subsequent statement. Reading two

statements which were basically recorded as dying

declarations, there is room to doubt that every

thing was not being fairly done. This is so

specially in the circumstance where the injuries

of the complainant could not be said to be such

that he was in expectation of death.

19. Coming back to the investigating officer

PW-12 Gautam Fasle and the evidence of Panch PW-4

Vaijinath, the cross-examination of the

investigating officer shows that this Vaijinath

was known to this investigating officer since

before and although this investigating officer

accepted once that the Panch had earlier acted as

Panch, the investigating officer again changed his

version. It is interesting to see that this

investigating officer PW-12 called this PW-4 Panch

Vaijinath constantly from Kumbharwadi where he was

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living to Georai. The discovery panchnamas

Exhibit 34 to 37 were recorded on 26th February

2002. The seizure of clothes of complainant

panchnama Exhibit 38 was recorded on 27th February

2002 and again Panch PW-4 Vaijinath was called for

seizure of the clothes of the accused Exhibit 39

on 28th February 2002. Although the discoveries of

stick and axe were shown as from the house of the

accused persons on 26th February 2002, this

investigating officer did not seize the clothes of

the accused on that day but seized the same only

on 28th February 2002 and it was shown that the

clothes had blood stains. If the accused had been

arrested on 24th February 2002 and the police went

with them to their house on 26th February 2002,

there was no reason why the clothes worn by the

accused also were not seized at that time. The

investigating officer was asked regarding this in

his evidence and he had no answers. The

investigating officer deposed (Para-16 of his

evidence) that the clothes of the accused were

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seized from their person. If the accused had been

arrested on 24th February 2002 and for alleged

discoveries they had taken police to their

residence on 26th February 2002, there is no

reason why the police should not have given these

accused opportunities to change their clothes and

seized their clothes on 26th February 2002 itself.

It would be inhuman treatment to the accused to

let them be miserable in the same clothes for so

many days. The approach of the investigating

officer to the investigation is clearly

unacceptable. There is further faux-pas. This

investigating officer who showed seizure of so

many articles, when he sent them to the C.A., they

were returned as they did not have proper wrapping

and sealing. He had to admit this in the cross-

examination (Para-14). The evidence of this

investigating officer read with the evidence of

carrier head constable Bansi Jadhav (PW-10) shows

that earlier the articles were sent to C.A. on

22nd April 2002 and then it appears that same were

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returned by the C.A. without accepting and thus

they were required to be re-sent on 14th May 2002.

Looking to such evidence, it is apparent that

there was no proper wrapping and sealing and

sending the articles. In such situation, the C.A.

reports and their results would simply required to

be ignored.

20.

The evidence of the investigating officer

read with the evidence of PW-4 Vaijinath regarding

alleged discovery of axe and stick will also have

to be discarded. The memorandum recorded by these

two accused itself showed that before the police

at the police station itself they had stated as to

where exactly the said axe and stick were.

Discovery is to be done of some thing which is

hidden and which nobody else would know or find

other than the person who hides the same. Here

this investigating officer showed that accused

No.1 Rangnath took the police and Panchas to his

house and gave the axe hidden near the Ranjan

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(water storage tank). It is claimed that it was

stained with blood. If accused were not arrested

for more than 24 hours after incident and if there

was time to hide the axe near water storage, what

prevented washing of the same? The stick is said

to have been seized from the roof of the house of

accused No.2 Radhakisan. This can be found even by

simple search. Such "discoveries" have no value as

shown in the present matter. Then there was delay

in sending copy of F.I.R. to Court. Even the

Medical Certificates of two injured (PW-2 and

PW-3) with same time of examination got done by

them on their own, were collected only after about

a month. The investigation does not appear to be

truthful.

21. I have gone through the Judgment of the

trial Court. I do not find that the Judgment of

the trial Court can be maintained. For reasons

discussed above, it must be held that the

prosecution has totally failed to prove the guilt

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of the accused persons. Consequently, the Appeal

deserves to be allowed. Hence I pass following

order:-

O R D E R

(I) Criminal Appeal is allowed.

(II) The impugned Judgment of conviction

and sentence as passed by IVth Ad-hoc

Additional Sessions Judge, Beed in

Sessions Case No.161 of 2002 on 5th

August 2003, is quashed and set aside.