Bombay High Court

Shri Adhar S/O Ragho Patil vs The State Of Maharashtra on 12 August, 2016

Bench: A.I.S. Cheema

                                                        Criminal Appeal No.602/2014
                                              1


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                               
                                   BENCH AT AURANGABAD




                                                       
                        CRIMINAL APPEAL NO.602 OF 2014




                                                      
     Shri Adhar s/o Ragho Patil,
     Age 58 years, Occ. Agriculture,
     R/o Karle, Tq. Shindkheda,
     District Dhule                                    ...      APPELLANT




                                         
              VERSUS

     The State of Maharashtra
                             
     through Police Station Songir,
     Taluka and District Dhule                         ...      RESPONDENT
                            
                        .....
     Shri R.S. Shinde, Advocate holding for
     Shri N.N. Desale, Advocate for appellant
     Shri K.S. Patil, A.P.P. for State
      

                        .....
   



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

                                     DATED:       12th August, 2016.





                               Date of reserving judgment : 4th August, 2016
                               Date of reserving judgment : 12th August, 2016.


     JUDGMENT:

1. The appellant - original accused has been convicted

under Section 307 of the Indian Penal Code, 1860 (I.P.C. in brief)

and sentenced to suffer rigorous imprisonment for ten years and

to pay a fine of Rs.5000/- and in default to suffer simple

Criminal Appeal No.602/2014

imprisonment for three months.

2. The case of prosecution in short is as follows :

(a) Complainant Pandit Lotan Patil (P.W.2) filed F.I.R.

Exh.24 on 5.3.2013 at about 3.05 p.m. at Songir

Police Station, District Dhule. He claimed that, he

was residing at Nikumbhe, Taluka and District Dhule

along with his family. He has sister Jaywantabai

Adhar Patil (P.W.1), the wife of accused, who resides

at Karle, Taluka Sindkheda. His sister has 4

daughters and 2 sons. 2 daughters and 3 sons (?)

are already married. Mohan, son of accused has

been married to Sunanda, the daughter of brother of

complainant namely (P.W.6) Shriram Lotan Patil. As

per the F.I.R., accused was addicted to liquor and

victim Jaywantabai had been telling him to leave the

addiction, but the accused was abusing and used to

beat her. Getting fed up, the victim was coming to

her brothers at Nikumbhe and staying there and used

to tell about her trouble. They used to explain to the

accused not to trouble the victim in such age. 8 days

before the F.I.R., accused had beaten victim under

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influence of liquor and victim Jaywanta came to

Nikumbhe and was staying with Shriram Lotan, the

brother of complainant. On 4.3.2013, accused came

to Nikumbhe village and stayed at the place of one

Karbhari Patil. On 5.3.2013, at about 10.00 a.m.,

ladies of the family of Shriram Lotan Patil and the

victim were rolling Papad. At that time, the accused

came to the house of Shriram Patil (P.W.6) from the

back side door, into the house and told the victim to

come along home with him. He was insisting for the

same. At that time, the victim told him that as long

as he does not give up liquor, she will not come with

him. Because of this, accused got angry and

removed from his pocket "Banawati Sura" (i.e.

fabricated dagger) and hit her on the stomach, chest,

and the hand of the victim and caused grievous

injury. Because of the noise, the brothers and other

relatives reached there running and caught the hands

of the accused and immediately sent the victim for

treatment to Dhule. The complainant and his nephew

Chatur Patil, Bhika Vithal Patil, Prakash Shankar Patil,

Himmat Dayaram Patil had brought the accused to

the Police Station.

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(b) The F.I.R. with such contents was registered and

P.S.I. Ashok Bagul took up the investigation. He

went to the spot and did panchanama Exh.30. Pieces

of bangles were seized from the spot. Statements of

witnesses were recorded. The injured had been

admitted in private hospital. P.W.9 P.S.I. Ashok

Bagul moved the doctor with letter Exh.41, but the

doctor endorsed that the patient was not in a position

to make statement. He seized the clothes of the

victim at the hospital vide panchanama Exh.26. The

accused was arrested on the same day. Later on,

medical certificate of the injured was obtained from

Dr. Tushar Patil (P.W.8). The knife and clothes of the

accused were also seized vide panchanama Exh.28 on

5.3.2013 itself. After completing the investigation,

the charge sheet came to be filed.

3. Charge was framed against the accused. The

accused pleaded not guilty. His defence is of denial. Cross-

examination and statement under Section 313 of Code of

Criminal Procedure, 1973 shows his defence. According to him,

his wife, the victim was insisting him to transfer property

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standing on his name, in the name of the sons. There was

dispute regarding the land. One day before incident, he had

gone to village Nikumbhe and stayed with relative Karbhari Patil.

On next day, when he had gone to the bus stand, P.W.6 Shriram

Lotan Patil, his brother-in-law asked him to come to their place.

At that place, the 5 brothers raised the subject of landed

property. Accused opposed that he will not transfer the property

during his life time. P.W.6 Shriram Patil abused the accused and

removed Sura and hit him on his stomach. When the victim tried

to rescue the accused, and accused started running, the victim

may have fallen and sustained injury. P.W.2 Pandit Lotan came

behind the accused and told that he will take the accused to the

hospital, but took him to the police station. Police was not ready

to record his complaint.

4. In the trial Court, prosecution brought on record

evidence of 9 witnesses. The trial Court considered the oral and

documentary evidence and accepted the case of prosecution to

convict the accused.

5. It has been argued by the learned counsel for the

appellant - accused that the evidence clearly shows that there

was dispute regarding property between the accused and his

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wife. The brothers P.W.2 Pandit and P.W.6 Shriram had reached

the spot only after the incident. The ladies who were there along

with the victim for rolling of Papad were independent witnesses,

but they were not examined. The witnesses were not clear as to

where the incident took place. It was unlikely that the 11 inch

long instrument referred at places also as knife could have been

carried by the accused in his pocket as alleged by the

prosecution. The evidence shows the witnesses deposing that

the accused had gone there to ask the victim wife to come along

with him to his home. It is clear that the intention of the accused

was to take the victim home and it cannot be said that he had

intention to murder the victim. Thus, according to the counsel, it

is not a case where attempt to commit murder could be

concluded. The record showed that, even accused had injuries,

but the prosecution did not bring any explanation as to how the

accused suffered injuries. According to the counsel, what exactly

happened at the time of incident was not clear and according to

the counsel, the appellant- accused is at present more than 60

years of age and is in custody for more than 3 years. According

to the counsel, at the most offence under Section 326 of IPC

could be said to be there and leniency is required to be taken

with regard to the accused as regards sentence. The counsel

referred to the orders of this Court dated 4.5.2016 where the

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request for compounding of offence was rejected. According to

the counsel, the parties have settled their differences and wish to

cohabit together.

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

evidence of various witnesses clearly proved the offence. The

accused had gone to the spot with the knife and there was no

grave and sudden provocation and thus, according to the A.P.P.,

offence under Section 307 was proved. The knife was hit on vital

part of body. P.Ws.2 and 6 were in the vicinity of the spot and

reached almost immediately. According to the A.P.P., the

accused had gone to the doctor only at about 4.30 p.m. after

inflicting injury on himself and thus, according to the A.P.P., the

medical certificate in favour of the accused should be ignored.

7. I have gone through the evidence and the impugned

judgment and reasons recorded by the trial Court for convicting

the accused. In this regard, it would be appropriate to first refer

to the evidence of P.W.1 Jaywanta herself, who is the victim.

Her evidence is that, the accused used to ill-treat her under

influence of liquor and at the relevant time, she had come to the

place of her brother Shriram Lotan (P.W.6). Her evidence is that,

as accused used to give illtreatment under influence of liquor and

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so she had come to the place of her brother. She deposed that,

her other brother Pandit Lotan (P.W.2) is adjacent resident of

Shriram Lotan. According to her, the incident took place in the

house of Shriram Lotan and at that time, one Dagabai, Sunitabai

were there who were rolling Papad with her and Sunandabai, her

daughter-in-law was also there. The F.I.R. shows that, this

Sunanda is daughter of P.W.6 Shriram, who is the brother of this

victim. Thus, her son was married to daughter of her brother.

Now the cross-examination of the victim shows that, there has

been no earlier complaint filed regarding the alleged conduct of

accused of consuming liquor. The victim admitted that she had

land dispute which is pending in the Court. She deposed that,

the said land is in the name of accused, which they are

cultivating although name of accused has been entered in the

cultivation column. She admitted that, her both sons were

residing separately and that the sons do not have agricultural

land and house property in their possession. She accepted that,

the house property is in possession of the accused as well as the

agricultural land. She admitted that, her both sons were asking

for shares from the property and were demanding the same. No

doubt the victim volunteered in the cross-examination that the

demand had been raised by the sons "at present". She may be

wanting to say that when she had come up for evidence, at that

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time, such demand had come up. Her cross-examination shows

that, one of the son is married to the daughter of her brother and

she had good relations with her brothers. She admitted in

further cross-examination that, the accused had come to take

her and was forcing her to come along with him.

8. Thus, although the victim tried to say that, the

dispute regarding the property was arisen when she had come up

for evidence, the fact remains that, the record does show that

one of her son is married to the daughter of P.W.6 Shriram.

Although admittedly the dispute regarding landed property had

arisen in her family and although the complainant P.W.2 Pandit

Lotan claimed that the sister used keep coming back making

grievances regarding her married life, in evidence the

complainant P.W.2 Pandit was not ready to accept that there was

quarrel in the family of his sister and her sons with regard to land

with the accused. Suggestions put to him that due to such

dispute the accused was falsely involved, were denied by this

complainant. Even P.W.6 Shriram denied the suggestions that

there was dispute between the victim and her children vis-a-vis

accused about landed property. Thus, although the victim

admitted that there was dispute, her brothers P.Ws.2 and 6, who

are the only witnesses examined to prove the incident to

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corroborate the victim have avoided these questions.

9. Coming back to the incident and the evidence of

P.W.1 Jaywantabai, she claimed that, the accused came in the

house from back side door and asked her to come along with

him, but she said that she will come only if he stops consuming

liquor. Her evidence is that, the accused got annoyed and with

the help of Sura, hit on her stomach and left hand near elbow

and on palm and she suffered injury. According to her, she

became unconscious and gained consciousness only in the

hospital at Dhule. She did not identify the Suri (Article 1) in the

Court claiming that it was suddenly drawn. To corroborate her,

prosecution examined P.W.2 Pandit. He claims that, at the

relevant time, he was in his house and his brother Shriram Lotan

resides in the adjoining house, where, according to him, the

ladies were rolling Papad. He deposed that, the accused came to

the house from back side door and was saying that his sister

should come along with him at the village and when his sister

said that she will not come till he leaves consuming liquor, there

was a quarrel and accused took out Sura and gave its blow on

stomach, chest and hand of the victim. This part of the evidence

of this witness is clearly hear-say as this witness further deposed

that his sister shouted because of which he went there and

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according to him, he snatched the Suri from the hands of the

accused. Even his F.I.R. shows that, the brothers and other

relatives ran to the spot only after hearing shouts.

10. P.W.6 Shriram Lotan has wavered regarding the

incident. Initially he deposed that the incident took place in the

house of P.W.2 Pandit Lotan. The evidence happened to be

deferred and after it was resumed, he corrected himself to

depose that the incident took place in his own house. He then

deposed as if the incident took place in his presence and he

claimed that the accused took out dagger from his Kopri and hit

the victim on her chest, stomach and hand. Then he deposed

that, his sister shouted, because of which they rushed there and

snatched the dagger from the hands of the accused. This

witness, in the cross-examination, claimed that there is Ota to

the house of his brother Pandit. He deposed that, he was in his

own house and at the relevant time he was on the Ota of his own

house. He deposed that, the Ota was admeasuring 6-7 ft. in

length and also width. He deposed that, he could not say how

many ladies were rolling Papad there. Although he claimed that,

he rushed to the spot only after hearing the shouts, he still

wanted to insist that he saw accused causing injury to his sister

by means of dagger.

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11. Reading the F.I.R. along with the evidence of P.W.2

Pandit and his brother P.W.6 Shriram, it does not appear that,

they were present at the time of actual assault. Their evidence

at the most is that they reached the spot after shouting by the

victim. There is no reason why the State did not examine any of

the other ladies who were there rolling Papad along with the

victim like Dagubai and Sunitabai. This was necessary looking to

the fact that the relations between the accused and victim had

strained. According to victim, they were strained because the

accused was addicted to liquor while as per the accused, they

were strained because of the property dispute, which fact the

victim is also accepting.

12. The victim claimed that, by knife she was hit on her

stomach, left hand near elbow and on the palm. The F.I.R.

claims that, she was also hit on the chest by knife and caused

injury. P.W.2 Pandit and P.W.6 Shriram both claimed that the

victim was also hit on the chest. The evidence of P.Ws.2 and 6

as well as the F.I.R. does not match with the evidence of the

victim herself, who did not depose about the being hit on the

chest. The evidence of P.W.8 Dr. Tushar Patil also does not show

that the victim had injury to the chest.

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13. The evidence of P.W.2 Pandit, the complainant read

with the F.I.R. is that, they caught hold of the accused on the

spot itself at the time of incident and took him along to the police

station. P.W.2 has deposed that, he had carried the Suri or knife

with him when taking the accused to the police Station.

Although the evidence is that, the accused was taken along to

the police station along with the said knife, ,the police did not

arrest the accused when offence was registered at 3.05 p.m. vide

Crime No.14/2013. The evidence of P.W.7 Panch Chandrakant

shows that, the accused was arrested only at about 7.55 p.m. of

5.3.2013. The witness claimed that, at that time, the accused

had an injury to his right side of stomach, which had been

bandaged. The prosecution did not bring on record, but the

accused obtained document under Right to Information Act,

which related to his own medical examination. The accused

produced the said document at the time of his statement under

Section 313 of the Code of Criminal Procedure and the medical

case paper Exh.58 shows that the accused was examined at 4.30

p.m. of 5.3.2013 by Doctor. The history of alleged assault was

recorded as at 10.00 a.m. of 5.3.2013. The injury is stated to be

C.L.W. on epigastric region of the middle. Of course, in the

photo copy, which the accused got under the Right to

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Information Act, in front of C.L.W. word "himself" was added

putting it in bracket. The evidence of P.W.7 is that, the accused

had an injury to the right side of his stomach. The arrest

panchanama Exh.35-A refers to this injury to the stomach and

also adds that there was another injury to the right hand little

finger. The arrest panchanama records that it was self inflicted

injury but no basis for the statement is given. If the accused had

been caught hold of by P.Ws.2 and 6 and others on the spot itself

and had been taken along to the police station, there is no

evidence coming from any witness as to how, when and where

the accused suffered the injury. It is neither the evidence that in

the course of the incident, the accused got injured accidentally or

otherwise, nor it is the evidence that at the time of incident or

when the accused was taken to the police station, he tried to hurt

himself.

14. From the evidence of P.W.4 Hiraman, the nephew of

P.W.1, prosecution proved Exh.28, panchanama of seizure of

knife and clothes of the accused between 3.30 p.m. to 4.00 p.m.,

on 5.3.2013. However, his arrest has been shown only at 7.50

p.m. vide Exh.35-A and the medical evidence Exh.58 is that, the

accused was examined at 4.30 p.m. The investigating officer did

not investigate nor bring on record how, when and where the

Criminal Appeal No.602/2014

accused suffered the said injury to his own stomach and his

finger. The seizure of knife and clothes vide panchanama Exh.28

were clearly before the arrest of accused. If the accused was

already in the grip of witnesses and was handed over to the

police at the time of filing of F.I.R., such delays are not explained

and how accused got injured is not explained.

15. The investigation gets further clouded when spot

panchanama Exh.30 is perused. The spot panchanama Exh.30

claims that, it was prepared on 5.3.2013 between 3.45 p.m. -

4.30 p.m. at village Nikumbhe and that the spot was shown by

the complainant Pandit Lotan Patil. But then, the evidence of

P.W.4 Hiraman shows that the police prepared seizure

panchanama Exh.28 between 3.30 p.m. - 4.00 p.m. of 5.3.2013

at Songir Police Station. In cross-examination, P.W.4 admitted

that, when such panchanama was being prepared, P.W.2 Pandit

Lotan was there at the police station. Thus, within 3.30 p.m. to

4.00 p.m., as per P.W.4 Hiraman, P.W.2 Pandit Lotan was at the

Police Station, Songir, but as per the spot panchanama done at

Nikumbhe between 3.45 p.m. - 4.30 p.m., the same P.W.2

Pandit Lotan was shown at the village.

16. The evidence of P.W.2 is that, after the incident they

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had taken the victim to hospital. What appears is that, she was

taken to hospital at Samarth Cancer Laproscopy and Maternity

Hospital, Deopur, Dhule. It was a private hospital. P.W.6

Shriram Lotan was suggested that, the victim was taken to the

said hospital as the doctor was well acquainted with him. The

witness denied the suggestion. If the evidence of the doctor

Tushar Patil is perused, it can be seen that the only medical

evidence brought on record is the medical certificate dated

11.3.2013 for medical examination done on 5.3.2013. This

doctor did not mention in the certificate if the injuries were

grievous or simple. He did not bring the case papers. He

claimed that, the same were given to the patient. Substance is

that, the case papers did not come before the Court. He

accepted that, the certificate did not show as to when the

operation was performed. It does not show when the patient

was admitted in the hospital. It did not show as to what were

stitches given to the patient or even the age of the patient.

Thus, the basic evidence on the basis of which the injury

certificate Exh.37 was issued, did not come before the Court. If

Exh.37 is perused, it claimed that, the patient was admitted on

5.3.2013 and time given is as 10.30 a.m. If one was to go by

this time, it needs to be kept in view that the case of the

prosecution itself is that the incident started at about 10.00 a.m.

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at the village Nikumbhe when it is claimed that the accused had

entered the house of P.W.6 from the back side. For the incident

to take place, some time would have been required at Nikumbhe

itself and then it would take some time to reach the hospital at

Dhule. In the record, including concerned column in the F.I.R. in

format, the distance from the spot of incident to the Police

Station, Songir is not recorded. However, looking to the fact that

Nikumbhe is separate village and Songir Police Station and the

hospital are at difference spots, at least some time factor would

be consumed. At this stage, even if it was to be stated that, time

may have been stated on the basis of surmises, still there is

further material to show that the genesis of the incident has not

come on record. In the cross-examination of P.W.8 Dr. Tushar,

he was confronted with an order which had been issued by

P.S.O., Deopur Police Station, in whose jurisdiction the hospital

was situated. The order was to Police Head Constable Thakur

mentioning that, this Dr. Tushar Patil had on phone informed that

patient Gayabai Adhar Patil had on that day of 5.3.2013, in the

morning at about 8.30 a.m., at residential house, been hit by

knife by husband on stomach and hand and had been admitted

by her brother in the hospital at 11.35 a.m. and statement of the

patient should be recorded. In this document Exh.38, there is

overwriting with reference to the name of the patient by applying

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white ink. The name corrected is seen as Gayabai. The injury

certificate Exh.37 mentions name as Jagabai. P.W.8 Dr. Tushar

was confronted with this document as he had endorsed on this

document on 5.3.2013 at 7.14 p.m. to the effect that, patient is

in post anesthesia phase and so not able to communicate

properly. He advised to take statement on next day. Thus, the

brother of victim who brought her to Dr. Tushar appears to have

given history about incident taking place at 8.30 a.m. in the

morning.

This is against the case of prosecution which has all

along been that the incident started at Nikumbhe at about 10.00

a.m. This Exh.38 mentioned that, the patient had been brought

and admitted at 11.35 a.m. Now this doctor has subsequently

issued injury certificate Exh.37 showing time of admission as

10.30 a.m. P.W.8 Dr. Tushar was asked but he stated that, while

endorsing, he did not take objection to Exh.38 when it was put

up to him regarding timing mentioned in Exh.38.

17. The clothes of the accused and knife were seized by

A.P.I. Pawar. A.P.I. Pawar was not examined. Clothes of the

victim were seized by P.W.9 Ashok Bagul. He admitted in cross-

examination that, the clothes of the accused were in sealed

condition and that they had not been seized in his presence. He

appears to have sent the clothes of the accused as also the

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victim as well as the knife to Chemical Analyser by letter dated

18.3.2013 vide letter Exh.42. The Carrier was not examined.

Apart from this, although the C.A. report regarding the clothes

shows that the clothes of accused as well as the victim had blood

group "O", the C.A. reports regarding the blood group of accused

as well as the victim were inconclusive regarding the grouping.

Thus, this evidence is not much helpful.

18.

It is interesting to see that accused had been caught

by P.Ws.2 and 6 and taken to Police Station. P.W.4, the nephew

of victim then says that he went to Police Station, Songir at 3.30

- 3.45 p.m. He says, then clothes of accused were seized from

his person. He added that, he gave other clothes to the accused.

In cross-examination, he stated, he had given the clothes to

accused by bringing the same from Nikumbhe. This is as if, he

knew before hand why he is going to Police Station.

19. Cumulative effect of above discussion is that, the

investigation does not appear to have been fair and impartial and

genesis of the incident has not come clearly on record.

Independent witnesses have also not been examined though

must have been available.

Criminal Appeal No.602/2014

20. For above reasons, I am unable to concur with the

trial Court that the offence was established beyond reasonable

doubts.

21. At this stage, reference needs to be made to the

order of this Court, dated 4.5.2016. Criminal Application

No.2206/2016 was filed for compounding of the offence, but after

hearing the compromise application No.2206/2016, which had

been filed along with Criminal Application No.2500/2016 for bail,

I had observed in para No.3 of the order as under :

3. The appellant- accused has been convicted under section 307 of the Indian Penal Code. Section

307 of the Indian Penal Code is not compoundable but in view of the judgment of the Hon'ble Supreme

Court in the case of Gian Singh (Supra), in certain contingencies, this Court can invoke inherent powers. In the present matter, however, the compromise, on the face of it, shows that the wife has entered into compromise subject to the

husband who is in jail transfers two properties in her name and in the name of her son. There is another condition put that original accused shall not enter the village Nikumbh where the wife resides. It clearly shows that the object of compounding is not to maintain cordial relationship.

On the face of record, what appears is that as the accused is in jail, an advantage is being taken. At least, that is the feeling I get seeing the documents and hearing the counsel. I do not think that such compromise can be recorded and acted upon. Consequently, I reject Criminal Application No. 2206/2016."

22. In the hind-sight, my hunch appears to have been

right. Now when I have appreciated facts of the present matter,

Criminal Appeal No.602/2014

and when I have come to the conclusion that on the merits of the

matter itself the conviction cannot be maintained, I find that, my

observations on 4.5.2016 regarding the feeling I got from the

documents and on hearing the counsel was not out of place. It

does appear that, victim has grievances against her husband

accused due to property. In cross-examination, such defence

was put up. I find it risky to rely on her uncorroborated evidence

regarding actual assault.

23. For these reasons, the Criminal Appeal is allowed.