Bombay High Court
Ukanda Kacharuji Choudhary vs State Of Mah.Thr.P.S.O.Nandgaon ... on 14 June, 2016
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ig NAGPUR BENCH : NAGPUR
Criminal Appeal No. 313 of 2001
Ukanda son of Kacharuji
Choudhary,
aged about 52 years,
resident of Mangrul Chawala,
Distt. Amravati ..... Appellant.
[in jail]
Versus
State of Maharashtra,
through Police Station
Officer, Police Station,
Nandgaon Khandeshwar. .... Respondent.
*****
Mr. Anil Mardikar, Senior Adv., with Ms. Kshirsagar, Adv., for the
Appellant.
Mr. S.J. Kadu, Addl. Public Prosecutor for the respondent- State.
*****
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CORAM : V.M. DESHPANDE, J.
Date : 14th June, 2016
ORAL JUDGMENT :
01. The Appellant, who was the Accused No.1 in Sessions Trial
No. 15 of 1991, was convicted by learned Additional Sessions Judge,
Amravati, on 10th September, 2001, whereby he was convicted of the
offence punishable under Section 304 Part-II, Indian Penal Code, and
directed to suffer Rigorous Imprisonment for three years and to pay a
fine of Rs. 500/-, in default, further Rigorous Imprisonment for two
months.
The prosecution case, in nutshell, is as under:-
02. A First Information Report was registered by Devidas
Dandge [PW 8] when he was discharging his duties as a Police Station
Officer at Police Station, Nandgaon-Khandeshwar, between 10th and
11th July, 1991. The First Information Report was lodged by Manik
Bisane on 11th July, 1991. The oral report is at Exh.34. Devidas
Dandge registered an offence against three persons, including the
appellant vide Crime No. 70/91 for the offence under Section 324 read
with Section 34 of Indian Penal Code. The printed FIR is at Exh.35. The
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First Information Report states that the appellant and Manik had a
drinking session. Thereafter, altercation ensued between them, in
which he was assaulted by the appellant with a harrow blade, resulting
into the injuries on his head and other parts of his body. It is also
reported in the First Information Report that Sunil, Original Accused
No.3, son of the appellant, also assaulted with kicks and fists blows. At
that time, one Somnath Kanoje, who tried to intervene, was also
assaulted by Sunil by a harrow blade. He also sustained injuries. It is
stated in the First Information Report that one Hari Maharaj and
Sukhadeo Choudhary witnessed the said incident.
03. On 11th July, 1991, Dr. Shridhar Umak was posted as a
Medical Officer at Primary Health Centre, Nandgaon-Khandeshwar. On
11th July, 1991, he examined Manik Bisane. He noticed following two
injuries:-
"i Incised wound 9 cm x 1½ cm x bone deep, over
the parietal towards the temporal vertically in
shape 4 cm, away from illegible eye brow. This
injury was situated at a distance of 6 cm away
from occipital to the temporal and 4 cm from
middle."
"ii. Incised wound besides the first located wound
near the skull bone. Ages are found sharply cut.
Size of injury : 1 cm x 0.02 cm x 0.02 cm.
Injury was of grievous nature.
Object was hard and sharp.
Age : within 24 hours.
Healing period of above both the injuries - Not
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given awaiting the x-ray and surgeon report from
General Hospital, Amravati."
He gave the Injury Certificate. The Injury Certificate is at Exh.46.
According to the doctor, both these injuries were grievous injuries.
On the very same day, he examined Somnath Kanoje and
found three injuries. The Injury Certificate of Somnath is at Exh.44.
Since Manik was having grievous injuries, Dr. Shridhar Umak [PW
11]referred him to General Hospital, Amravati. Manik Bisane, who was
admitted in the General Hospital, Amravati, was treated there
medically upto 22nd July, 1991. However, since his condition
worsened, he was removed to the Govt. Medical College & Hospital,
Nagpur. However, on 25th July, 1991, Manik succumbed to his head
injury. On the occurrence of death of Manik on 25th July, 1991, the
offence was converted from Section 324 to Section 302, Indian Penal
Code against all the accused persons.
04. Murlidhar Deshmukh [PW 10] was entrusted with the
investigation of Crime No. 70/91. On 11th July, 1991 itself, he made
arrests of all the three accused. He recorded statements of witnesses.
Accused No.2, Vivek Choudhary, made a disclosure statement in
presence of Panchas and accordingly Murlidhar Deshmukh seized that
harrow blade from the place shown by him, under the Recovery Memo
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[Exh.38]. He handed over further investigation to Shri Deotale, Police
Sub-Inspector, who only filed a charge-sheet before the Court of Law.
05. After the case was registered as Sessions Case No. 215 of
1991, charge was framed against the appellant and two other accused
persons under Section 302 read with Section 34 of Indian Penal Code,
for committing the murder of Manik Bisane. The appellant and other
accused were also charged for the offence punishable under Section
307 read with Section 34 of Indian Penal Code, for murderous assault
on Somnath Kanoje. The accused persons denied the charge and
claimed for their trial.
06. In order to bring home the guilt of the accused persons, the
prosecution has examined in all twelve witnesses, and also relied upon
various documents.
07. After appreciation of entire prosecution case, the learned
Additional Sessions Judge, Amravati, acquitted all the accused
[including the appellant] of the offences punishable under Sections 302
and 307 read with Section 34 of Indian Penal Code. However, the
Original Accused No.1, i.e., present appellant, was convicted of offence
punishable under Section 304 Part-II, Indian Penal Code, and was
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directed to suffer three years of Rigorous Imprisonment and payment
of fine amount. Hence this appeal.
08. I have heard Mr. Anil Mardikar, the learned Senior Counsel
with learned Adv. Ms. Kshirsagar for the appellant and Shri S.J. Kadu,
learned Addl. Public Prosecutor for the State. Both the learned
counsels took me through the record and proceedings in detail.
09. Though the appellant and other accused persons were
acquitted of the offences punishable under Sections 302 and 307,
Indian Penal Code, the State has not preferred any appeal. Since the
charge for the offence under Section 307, Indian Penal Code, was
pertaining to injury of Somnath [PW 7], of which the appellant is also
acquitted, the Court is not discussing about the injuries of Somnath
and other material in that behalf.
10. The First Information Report is not a substantive piece of
evidence. It can be used for corroboration or contradiction.
11. First Information Report [Exh.34] clearly recites that the first
informant was assaulted by the appellant in presence of Hari Maharaj
and Sukhadeo Choudhary. These two independent witnesses are not
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examined by the prosecution.
12. When Manik was admitted in the hospital at Amravati, he
was visited by Siddhartha Wankhede [PW 4] and Smt. Urmila
Bisane[PW 5].
Evidence of Siddartha Wankhede shows that when he visited
the hospital, he made enquiries with Manik about the incident. That
time, it was disclosed to him that the appellant, Ukanda, caught hold of
him and accused Vivek [acquitted Accused No.2] gave a blow of "Pass"
[sharp blade used for tilling an agricultural field]. He admitted during
his cross-examination that Manik was in a condition to speak with him.
13. Urmila [PW 5] is the widow of Manik. According to her
evidence, when her husband, Manik, was brought to the house, she
made enquiries with her husband and that time, it was disclosed to her
that the appellant Ukanda and another accused Vivek gave blows on
his head by means of a "Pass."
14. In view of the aforesaid evidence of these two material
witnesses, there appears to be a serious discrepancy and contradiction
as to who assaulted Manik. The statement made by Manik to Siddartha
shows that he was assaulted by only Vivek and the role ascribed to
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present appellant was that he caught hold of Manik, whereas, as per
the statement given to Urmilabai, his widow, Manik has stated that he
was assaulted by both appellant and Vivek.
15. It is to be noted that there was no seizure of any weapon at
the behest of the present appellant. The recovery at the instance of
acquitted accused, Vivek, is also disbelieved by the learned Judge of
the court below.
16. Perusal of the impugned Judgment shows that the appellant
is convicted only on the basis of the report lodged by Manik. In my
view, such an approach on the part of the learned Judge of the court
below is erroneous. The learned Judge of the court below ought to
have seen that two versions are coming on record in respect of the
assault, as discussed in the preceding paragraphs. Further, it is an
admitted position that at the time of incident, the deceased was under
the influence of liquor. As discussed in the preceding paragraphs, it
appears that the deceased himself was not sure as to who was the
actual assailant. The learned Judge has observed that the prosecution
has proved the Dying Declaration of Manik, treating the First
Information Report as his Dying Declaration.
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17. By now, it is a settled position of law that it is the duty of the
prosecution to establish on record the maker of such statement was
mentally fit and was in a position to give such statement. It appears
from the record that the Court can reach to the conclusion that Manik
was in a condition to give the statement about the incident of assault,
since he himself visited the Police Station and gave his report. Further,
about his mental condition, this Court is having the evidence of
Siddartha [PW 4] who visited General Hospital, Amravati, who
volunteers from the witness box that Manik Bisane, the deceased, was
in a fit condition to talk. Even the suggestion given to Urmila [PW 5],
that Manik was also not in a position to talk, is also denied by her.
Thus, the statements made to Siddartha and Urmila, which can be
termed as oral Dying Declarations to these two persons by Manik give
altogether different account than what is stated in the First Information
Report. The Court certainly cannot "pick and choose" a statement as a
Dying Declaration for convicting the accused person. In the light of the
aforesaid fact that two different versions about the assault are brought
on record by the prosecution itself, and, in absence of any recovery of
the weapon from the appellant and the fact that two independent
witnesses were not examined by the prosecution, in my view, the
benefit of doubt has to be extended in favour of the appellant for
acquitting him even of the offence punishable under Section 304 Part-
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II, Indian Penal Code. Consequently, I pass the following order:-
ORDER
[a] Criminal Appeal No. 313 of 2001 is allowed.
[b] The Judgment and Order of conviction passed by
the Additional Sessions Judge, Amravati, on 10th
September, 2001 in Sessions Trial No. 215 of
1991, convicting the appellant of the offence
punishable under Section 304 Part-II, Indian Penal
Code, is hereby quashed and set aside.
[c] The Bail Bonds stand cancelled.
[d] The fine amount, if paid by the appellant, be
refunded to him.
Judge
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