Bombay High Court
Rejendra S/O Shriram Chawale ... vs The State Of Maharashtra Through ... on 28 March, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO.434 OF 2013
APPELLANTS: 1 Rajendra S/o Shriram Chawale,
(Appeal abated against appellant
No.1)
2
Ananta S/o Shriram Chawale, aged
about 46 years, Occu: Agriculturist,
R/o Yashoda Nagar No.2, Amravati
(In Jail).
-VERSUS-
RESPONDENT: The State of Maharashtra through its
Police Station Officer, Police Station
Nandgaon Khandeshwar, Tq. Nandgao
Khandeshwar, District Amravati.
Shri S. G. Joshi, Advocate for the appellant.
Shri M. K. Pathan, Additional Public Prosecutor for respondent
State.
CORAM: B.R. GAVAI AND A.S.CHANDURKAR,JJ.
DATED: 28TH MARCH, 2016.
ORAL JUDGMENT : (Per A. S. Chandurkar, J)
1. The appellant No.2 challenges his conviction for the
offence punishable under Section 302 and Section 324 read with
Section 34 of the Indian Penal Code (for short, the Penal Code).
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This conviction is recorded in Sessions Trial Case No.21/2012
decided by the learned District Judge-2, Amravati on 29-6-2013.
2. The facts as can be gathered from the material on
record are that the father of the appellant - Shriram was the
owner of field survey No.52/2002 admeasuring 1H 2 R. This land
was, however, publicly auctioned and possession of the same was
given to one Pandharinath Kale. The said land was also the
subject matter of litigation between the families of Shriram and
Pandharinath. A dispute with regard to possession of said field was
also pending. On 10-10-2011, said Pandharinath Kale along with
his son Ashok were present in the field. The appellant and his
brother Rajendra came there and attacked Ashok with a knife and
blade of spear. His father - Pandharinath was also attacked. The
injured Ashok was taken for medical treatment, but he succumbed
to his injuries. His father, therefore, lodged a report on the same
day. After completion of the investigation, a charge-sheet came to
be filed against the appellant and his brother Rajendra. The case
was committed to the Sessions Court and as the accused did not
plead guilty, they were tried. At the conclusion of the trial, the
appellant as well as his brother Rajendra were convicted in the
manner stated herein above. This conviction was challenged by
the accused in the present appeal. During pendency of the appeal,
apeal434.13.odt 3/9
Rajendra expired. The appeal has thus abated against him. The
same is continued in so far as the appellant No.2 Ashok is
concerned.
3. Shri S. G. Joshi, learned Counsel for the appellant
submitted that the learned Judge of the Sessions Court was not
justified in convicting the appellant. He submitted that it was an
admitted position that various litigations were pending between
the parties. Though in the first report lodged by the informant, it
was stated that there were about four persons involved in the
assault on Ashok Kale, in his deposition the first informant
Pandhari as per Exhibit-20 has deposed about said assault only by
the appellant and his brother Rajendra. It was, therefore,
submitted that if in the first report there was such a vital
discrepancy, the case of the prosecution should fall to the ground.
He submitted that it was clear that the first informant had given a
distorted version of the incident and therefore, his entire evidence
was liable to be rejected. In that regard, the learned Counsel
placed reliance upon the judgment of the Hon'ble Supreme Court
in Kanbi Nanji Virji and others v. State of Gujarat AIR 1970 SC 219.
It is then submitted that the witnesses examined were the relatives
of said Ashok and considering the fact that there were earlier
disputes between the parties their version became interested. He
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submitted that there were material contradictions in the
statements in the witnesses and, therefore, the case of the
prosecution could not have been accepted. He, therefore,
submitted that the judgment under challenge deserves to be set
aside.
4. On the other hand Shri M. K. Pathan, learned
Additional Public Prosecutor opposed aforesaid submissions. It
was submitted that the presence of the appellant at the site was
proved from the deposition of various eye witnesses. Merely
because the witnesses were related to the deceased, the same
cannot be a ground to disbelieve them. It was submitted that PW-
13 Vinod Ingle was an independent eye witness and his version
corroborated the version of the other eye witnesses. It was then
submitted that discrepancies if any were of a minor nature and the
entire case of the prosecution cannot be disbelieved on that basis.
It was, therefore, submitted that after considering the entire
evidence on record the trial Court had found that the case of the
prosecution had been proved beyond reasonable doubt and,
therefore, the appeal was liable to be dismissed.
5. With the assistance of the learned Counsel for the
parties, we have gone through the records. PW-3 - Pandharinath
was examined below Exhibit-20. He was the father of Ashok.
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According to him, on 10-10-2011 when had been to his field
followed by his wife and other family members including Ashok,
the appellant and his brother Rajendra had come to the field at
about 1 p.m. While Rajendra was holding a knife, the appellant
was holding a spear. Both of them had assaulted his son due to
which he sustained injuries on his head, thigh and stomach.
Pandharinath had stated that the incident was witnessed by his
wife Manjula and one Vinod Ingle. He has then stated that
Rajendra had also assaulted him with a stick while the appellant
assaulted him with a spear on his thigh and he had sustained an
injury. Ashok was then taken for medical treatment. This witness
is an injured witness.
In his cross examination, he has denied that four
unknown persons had come to the field and assaulted him. He
was confronted with certain omissions in his deposition. However,
his testimony has not been shattered. It is to be noted that this
witness was referred to the Rural Hospital as per the report at
exhibit-82 and the same indicates that he suffered lacerated
wounds over his thigh as well as a blow by a blunt object on his
back.
6. Vinod Ingle, another eye witness was examined as PW-
13 below Exhibit-96. He has also narrated the assault by the
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appellant and Rajendra. He has stated that he used to work as a
labourer on the goods vehicle owned by the deceased. In his cross-
examination, he has stated that he was not aware about the cases
pending between the said parties. He denied the suggestion that
he had not seen the alleged incident. Except for certain minor
inconsistencies, his version is also not disturbed in the cross-
examination.
7. Another eye witness examined by the prosecution is
Manjulabai, the mother of Ashok. She was examined as PW-9
below Exhibit-65. She has deposed about the appellant and his
brother first assaulting Ashok and thereafter, assaulting her
husband. In her cross-examination, she has denied suggestion that
she was not present at the spot or that she had not witnessed the
incident.
The wife of Ashok, Jyoti was examined as PW-4 below
Exhibit-47. She has corroborated the version of PW-13 - Vinod
Ingle and has stated that she was informed by said Vinod about the
incident. Similarly, Sudhakar Kale, brother of Ashok was
examined as PW-8 below Exhibit-64 and he has also stated that
PW-13 Vinod had informed him about the incident.
8. The spot panchanama was proved in the deposition of
PW-1 Rajendra who has deposed of seeing blood stains at the spot
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of the incident. He has stated that there was some damage to the
crops standing in the field. The incriminating weapons were
seized as per Exhibits 68 & 69.
9. Thus, the material collected by the prosecution leaves
no manner of doubt that on 10-10-2011 Ashok was assaulted by
the appellant and his brother resulting in fatal injuries being
caused. It is further clear that the father of Ashok, Pandharinath
was also assaulted by the appellant and his brother and he also
suffered injuries. Though the eye witnesses are related to Ashok
being his family members, their version cannot be discarded
merely on that count. The presence of the family members at the
site appears to be natural as a Pooja was being performed by the
family members. The motive for the assault can also be gathered
from the fact that there was litigation pending between the two
families over the ownership of the land in question.
10. As regards the submission made on behalf of the
appellant regarding the reference made by PW-3 Pandharinath of
the presence of four persons during the assault thereby rendering
the proscution case doubtful, the same cannot be accepted. In
Kanbi Nandji Virji (supra), it was held by the Hon'ble Supreme
Court that if on the basis of evidence on record it can be
concluded that right from the beginning a prosecution witness was
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giving a distorted version of the incident, it would not be proper
on the part of the Appellate Court to exclude only that portion of
the evidence of such witness. While it is true that often times the
Courts have to separate the truth from falsehood, where two are so
intermingled so as to make it impossible to separate them, the
evidence has to be rejected in its entirety.
However, in the present case, it cannot be said that the
deposition of PW-3 Pandharinath was of such a nature that he had
given a distorted version of the incident. Though in the initial
report lodged by Pandharinath there is a reference to the presence
of four persons during the assault, he has denied of the assault by
four unknown persons in his deposition which statement is further
corroborated in the deposition of other eye witnesses. Therefore,
it would not be permissible to discard the entire deposition of
PW-3 Pandharinath only on this count when the same finds
corroboration in the evidence of other witnesses.
The ratio of the judgment in Kanbi Nandji Virji (supra)
cannot be made applicable to the case in hand.
11. It will, therefore, have to be held that the prosecution
has succeeded in proving beyond reasonable doubt the guilt of the
appellant. The learned Judge of the Sessions Court after
considering the entire evidence on record has rightly held that the
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case was proved by the prosecution beyond reasonable doubt. We
do not find any reason whatsoever to disagree with the aforesaid
conclusion. In the result, the appeal stands dismissed.
JUDGE JUDGE
//MULEY//
