Pravin S/O Ajit Dhurve vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3544 Bom

                                     1                     apeal604.13.odt




                                                                          
                                                  
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                 
                                   NAGPUR BENCH, NAGPUR




                                         
                            CRIMINAL APPEAL NO.604 OF 2013
                             
                            
      Pravin s/o. Ajit Dhurve,
      Aged about 19 years, 
      Occ. Agrilst., r/o. Near Shubh
      Mandir, Karanja, Distt. Washim. ..........      APPELLANT
      
   



              // VERSUS //





      State of Maharashtra,
      Through P.S.O. Karanja,
      District Washim.                      ..........      RESPONDENT





      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                Mr.Mir Nagman Ali, Adv. for the Appellant.
             Mrs.Geeta Tiwari, A.P.P. for the Respondent/State.
      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=




    ::: Uploaded on - 07/07/2016                  ::: Downloaded on - 30/07/2016 07:45:13 :::
                                          2                             apeal604.13.odt


                                         CORAM     :  B. R. GAVAI &




                                                                                      
                                                              V. M. DESHPANDE, JJ.

DATE : 1.7.2016.

ORAL JUDGMENT (Per B.R.Gavai, J) :

1. The appellant has approached this Court being aggrieved

by the Judgment and Order passed by the Additional Sessions Judge,

Washim in Sessions Trial No.97 of 2010, dt.27.8.2013 thereby

convicting the appellant for the offence punishable under Section

302 of the Indian Penal Code and sentencing him to suffer rigorous

imprisonment for life and to pay a fine of Rs.1000/-; in default, to

suffer simple imprisonment for three months and also convicting the

appellant for the offence punishable under Section 307 of the Indian

Penal Code and sentencing him to suffer rigorous imprisonment for

three years and to pay a fine of Rs.2000/-; in default, to suffer simple

imprisonment for six months.

2. The prosecution case, as could be gathered from the

material placed on record, is thus :

3 apeal604.13.odt

The field of deceased Sudhakar Banarase was adjacent

to the field of original accused nos. 1 and 2 within the jurisdiction of

Police Station, Karanja. On 11.9.2010, on the day of Ganesh

Chaturthi, the cow belonging to deceased Sudhakar had entered into

the field of the accused. Therefore, both the accused, who are father

and son, beat Sudhakar by fist and kick blows during day time. The

nephew of Sudhakar namely Rahul @ Ankush Bandopant Gulhane

(PW-1) was taking education at Karanja and due to holiday, he had

been to the house of his maternal uncle Sudhakar. At around 5.30

p.m. Madhukar, who is grandfather of Rahul, disclosed the incident

of assault on Sudhakar by accused persons in the field. As Sudhakar

did not return home from the field, Madhukar asked Rahul to go to

the field to know the whereabout of Sudhakar. As such, Rahul

proceeded on bicycle. After crossing some distance, he kept his

bicycle on the highway and further proceeded on foot. However,

while he was going to the field, he saw his maternal uncle Sudhakar

coming in a bullockcart. As such, Rahul came up to the highway

along with deceased Sudhakar. His grandfather, maternal aunt

Sheela, younger maternal uncle Gajanan and Shubham had also

come upto the highway to see Sudhakar. Gajanan Vitthalrao

Banarase (PW-2) asked Madhukar and Sudhakar regarding the

4 apeal604.13.odt

incident. Madhukar disclosed the incident of beating to Sudhakar by

accused persons. Therefore, they decided to lodge report.

3. When Rahul, Gajanan and Sudhakar were proceeding

towards Karanja on motorcycle, after crossing some distance, they

saw accused Ajit Dhurve and Pravin Dhurve standing by the side of

road. Accused Pravin asked as to where they were going. Gajanan

replied that they were going to lodge report to Police Station.

Accused Pravin abused Sudhakar and told that he himself grazed his

cattle in their field and is going to lodge report against them. Pravin

manhandled Sudhakar and dealt a sickle blow on his neck. In order

to save Sudhakar, Gajanan intervened into the quarrel but accused

Ajit beat Sudhakar by means of fist and kick blows. He also caught

hold of Gajanan and told accused Pravin that let the duo be killed.

Thereafter, Pravin assaulted Gajanan with sickle on his head.

Gajanan and Sudhakar had sustained bleeding injuries. Said Rahul

tried to convince accused but Pravin gave 2-4 slaps and also

threatened to kill him if he intervened into the quarrel. Rahul then

rushed to village Kherda on the same motor cycle. He narrated the

above incident to the family members, who brought Gajanan and

Sudhakar to Government Hospital, Karanja in an auto-rickshaw.

5 apeal604.13.odt

4. On examination, Sudhakar was found to be dead. The

condition of Gajanan was critical and as per advice of Medical

Officer, Gajanan was shifted to Government Hospital, Akola. Rahul

then rushed to Police Station, Karanja and on the basis of his oral

report below Exh.55, Crime No.127 of 2010 came to be registered

vide F.I.R. below Exh.56. At the conclusion of investigation, a charge

sheet came to be filed in the Court of Judicial Magistrate, Karanja.

However, since the case was exclusively triable by the learned

Sessions Judge, the same came to be committed to the learned

Sessions Judge.

5. The learned trial Judge framed charge below Exh.22

against both the accused. They pleaded not guilty and claimed to be

tried. At the conclusion of the trial, the learned trial Judge

acquitted accused no.2, however, passed the order of conviction as

aforesaid against the present appellant. Being aggrieved thereby, the

present appeal.

6. Mr.Mir Nagman Ali, learned Counsel for the appellant

submits that the order of conviction is based on the testimonies of

relatives who are interested witnesses. He submits that the

6 apeal604.13.odt

conviction which is solely on the basis of testimonies of interested

witnesses would not be sustainable. He further submits that perusal

of testimonies of Rahul Gulhane (PW-1) and Gajanan Banarase

(PW-2) would reveal that there are inconsistencies in their

testimonies. It is submitted that the injuries sustained by Gajanan

Banarase (PW-2) are not corresponding to the weapon sickle alleged

to have been used in the crime. It is, therefore, submitted that the

order of conviction is not sustainable and the appellant is entitled to

be acquitted of the charges charged with.

7. As against this, the learned A.P.P. submits that the

evidence of both the witnesses is cogent, reliable and trustworthy

and warrants no interference.

8. With the assistance of the learned A.P.P. and the learned

Counsel for the appellant, we have scrutinized the evidence on

record.

9. In view of the evidence of Dr. Yashwant Tekade (PW-7)

and the post mortem report below Exh.89, we do not find that any

7 apeal604.13.odt

interference is warranted with the finding that the death of

deceased is homicidal.

10. Nodoubt that the order of conviction in the present case

primarily rests on the evidence of Rahul Gulhane (PW-1) and

Gajanan Banarase (PW-2), who are undisputedly interested

witnesses being related to the deceased. However, merely because

the witnesses are interested witnesses, cannot be a ground to

discard their testimonies. The only requirement would be that the

evidence of such witnesses should be scrutinized with greater

caution and conviction can be based only if the evidence is found to

be trustworthy, cogent and reliable.

11. In the light of this principle, we will examine the

evidence of Rahul @ Ankush Bandopant Gulhane (PW-1) and

Gajanan Vitthalrao Banarase (PW-2). Rahul Gulhane (PW-1) is the

nephew of deceased. He narrates about the earlier incident

regarding his grand father telling him about the accused assaulting

the deceased with fist and kick blows. He further narrates about his

grandfather telephoning his maternal uncle and asking this witness

to verify the fact by going to the field. He further stated regarding

8 apeal604.13.odt

going to the field on bicycle and keeping the bicycle by the side of

highway and proceeding further. At that time, he saw the deceased

returning in a bullockcart. He further stated regarding his coming

upto the highway in the bullockcart. Till that time, his grandfather

Madhukar, maternal aunt Sheela, younger maternal uncle Gajanan

and Shubham had reached upto the highway to see the deceased.

He further states regarding Gajanan asking deceased and Madhukar

regarding the incident. He further states that, after Madhukar

narrated the incident, Gajanan suggested to lodge report. As such,

Shubham, Sheela and Madhukar went home along with bullockcart

as advised by Gajanan.

12. Perusal of the evidence of Rahul (PW-1) further reveals

that three of them i.e. deceased, Rahul (PW-1) and Gajanan (PW-2)

proceeded towards Karanja on a motorcycle. After crossing some

distance, this witness saw accused Ajit Dhurve and Pravin Dhurve

standing by the side of road, who asked them to stop. Gajanan

stopped the bike and got down from the bike. Accused Pravin asked

them as to where they were going ? Gajanan replied that they were

going to lodge report in the Police Station. Accused Pravin abused

Sudhakar and told him that he was allowing the cattle to enter into

9 apeal604.13.odt

his field and going to lodge report against him. After saying so,

accused Pravin man-handled Sudhakar and dealt a sickle blow on

his neck. In order to save Sudhakar, Gajanan intervened. At that

time, accused Ajit Dhurve beat Sudhakar by means of fist and kick

blows. Accused Ajit caught hold Gajanan and told accused Pravin let

duo be killed. Thereafter. accused Pravin dealt a blow of sickle on

the head of Gajanan. This witness told them not to beat his maternal

uncle. They warned if he intervenes into the quarrel, they would kill

him. Subsequently, accused Pravin gave him 2-4 slaps. In the wake

of fear, he ran away for some distance. Thereafter, both the accused

left. He then went to the spot where his both maternal uncles were

lying on the ground. Blood was oozing from the neck of Sudhakar

and from the head of Gajanan. He went to village Kherda by the

same motorcycle and narrated the incident to his mother,

grandmother and grandfather. He then brought the auto of Amol

Bijwe. The members of the family boarded the said auto whereas he

himself and Madhukar ride on motorcycle and reached the spot.

Both Gajanan and Sudhakar were taken to the hospital at Karanja.

Sudhakar was declared dead. Condition of Gajanan was critical. As

such, he was shifted to Government Hospital, Akola. He went to

10 apeal604.13.odt

Police Station and lodged a report below Exh.55. Printed F.I.R. was

lodged below Exh.56.

13. This witness has been thoroughly cross-examined. A

suggestion is given to him that since he was studying at Karanja, he

could not be in the village. A suggestion was also given to him that

since the incident had taken place in twilight, he could not have

noticed the same. However, he has withstood the rigorous cross-

examination and no damage has been done to his testimony insofar

as the material aspect of assault on the deceased is concerned.

14. The evidence of this witness Rahul (PW-1) is duly

corroborated by the F.I.R. wherein he has clearly implicated the

present appellant. The F.I.R. is lodged immediately after the

incident has taken place.

15. The evidence of Gajanan Banarse (PW-2), who is injured

witness, is on the similar lines. This witness has also been

thoroughly cross-examined. However, nothing damaging insofar as

actual incident of assault has come on record. Witness Gajanan

11 apeal604.13.odt

Banarse (PW-2) has been examined by Dr. Nathuram Salunke (PW-

9) and he found the following two injuries :

1. CLW over right temporal region, 8 x 6 x 4 cms.

incise, bleeding was there, and

2. CLW over right side of neck, 3 x 2 x 1 cms.

In that view of the matter, we find that there is no

reason to disbelieve the testimony of this witness.

16. In that view of the matter, we are of the considered view

that though Rahul (PW-1) and Gajanan (PW-2) are interested

witnesses, their evidence is such which can be said to be truthful,

cogent and reliable and the one which inspires confidence in the

mind of Court.

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

prosecution has proved beyond reasonable doubt that it is the

present appellant who is the author of assault on the deceased

which led to his death and on Gajanan (PW-2) which resulted in

causing grievous injuries to him.

12 apeal604.13.odt

18. That leaves us with the question as to whether the

conviction under Section 302 of the Indian Penal Code would be

sustainable or is liable to be converted in the lesser crime.

19. From the evidence of prosecution witnesses, it also

reveals that there was enmity between the deceased and his family

on one hand and the family of the accused on the other hand. The

evidence of prosecution witnesses itself would reveal that, when

they were going towards Karanja for recording the F.I.R. with

regard to the incident in the morning, they saw the appellant and

they stopped there. It could further be seen that, from the evidence

of prosecution witnesses itself it would reveal that there was a

quarrel between deceased and Gajanan (PW-2) on one hand and the

accused persons on the other hand. It is further to be revealed that

Investigating Officer Pradip Shankarrao Bijwe (PW-8) has himself

admitted in the cross-examination that :

"When I arrested accused Pravin, I found minor injuries on his right side of neck and hand. He was referred to the hospital for medical check up, but no medical certificate is produced alongwith the charge sheet. It was not learnt

13 apeal604.13.odt

from complainant and Gajanan as to how Pravin had sustained injuries. It is not true that in fact Pravin had

sustained severe injuries hence I did not produce his

medical certificate along with the charge sheet. "

20. It would thus clearly be seen that the incident is outcome of

quarrel between the accused and his father on one hand and the

deceased and his brother on the other hand. It is not the case of the

prosecution that the accused with preparation had gone to commit

murder of the deceased. It appears that there was a quarrel between

the two parties and in the said quarrel, the appellant has assaulted

the deceased. As discussed hereinabove, the Investigating Officer

himself has admitted that the appellant sustained injuries. However,

his Medical Certificate was not placed on record. We find that the

real genesis of the incident has not been brought on record by

prosecution. Though we have believed the evidence of Rahul (PW-1)

and Gajanan (PW-2) for coming to the conclusion that it is the

present appellant who has assaulted the deceased, we find that

insofar as real genesis of incident is concerned, the said witnesses

have not brought the same on record. As it is a settled principle that

"falsus in uno falsus in omnibus" is not applicable in India. As such,

14 apeal604.13.odt

we find that the possibility of quarrel taking place between the two

parties and in the heat of passion, the accused assaulting the

deceased cannot be ruled out. As already discussed hereinabove,

there is no material placed on record that there was premeditation.

From the nature of injuries sustained by deceased, it can be seen that

there is only one injury. It, therefore, cannot be said that the

appellant had taken undue advantage or acted in a cruel or unusual

manner. It could further be seen that the weapon which has been

used in the crime is 'sickle' which is commonly used by the

agriculturists for their agricultural purposes. We are, therefore, of the

considered view that the appellant is entitled to the benefit of

exception 4 of Section 300 of the Indian Penal Code and the case

would not fall within the ambit of Section 302 of the Indian Penal

Code, but rather it would fall under part I of Section 304 of the

Indian Penal Code. Hence, the Order.

O R D E R

Criminal Appeal No.604 of 2013 is partly allowed.

The order of conviction of the appellant Pravin Ajit

Dhurve for an offence punishable under Section 302 of the

15 apeal604.13.odt

Indian Penal Code is altered to the one under Section 304

Part I of the Indian Penal Code.

The appellant is directed to suffer rigorous

imprisonment for ten years for the said offence.

Rest of the order including conviction and sentence

for the offence punishable under Section 307 of the Indian

Penal Code and imposition of the fine, is maintained.

                                    JUDGE                           JUDGE
       

      jaiswal