Bombay High Court
The State Of Mah vs Sanjay Eknath Shinde & Ors on 4 May, 2016
Bench: A.I.S. Cheema
cria172.05
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.172 OF 2005
The State of Maharashtra,
Through Public Prosecutor,
High Court, Bench at Aurangabad.
...APPELLANT
(Orig. Complainant)
VERSUS
1) Sanjay s/o Eknath Shinde,
Age-34 years, Occu:Agril.,
2) Babasaheb s/o Dagadu Shinde,
Age-28 years, Occu:Agril.,
3) Ramchandra s/o Eknath Shinde,
Age-39 years, Occu:Agril.,
All R/o- Taka, Tq-Ausa,
Dist-Latur.
...RESPONDENTS
(Orig. Accused)
...
Mr. A.M. Phule, A.P.P. for Appellant - State.
Ms. Supriya L. Pansambal Advocate h/f. Mr. V.D.
Gunale Advocate for Respondent Nos.1 to 3.
...
::: Uploaded on - 05/05/2016 ::: Downloaded on - 30/07/2016 00:56:50 :::
cria172.05
2
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 20TH APRIL,2016.
DATE OF PRONOUNCING JUDGMENT: 4TH MAY, 2016.
JUDGMENT :
(hereafter referred as "accused") were prosecuted
before J.M.F.C. Ausa in R.C.C. No.222 of 2001 for
offence punishable under Sections 324, 323, 504
read with 34 of the Indian Penal Code, 1860 ('IPC"
in brief). The learned J.M.F.C. convicted them of
offence punishable under Section 323 read with 34
of IPC but acquitted them of the offences under
other Sections. The accused persons filed Criminal
Appeal No.21 of 2003 and IInd Adhoc Additional
Sessions Judge, Latur acquitted them of the
offence under Section 323 read with 34 of IPC
also. Thus, this Appeal by the State.
2. The case brought by the prosecution
before the trial Court, in brief, was as follows:
cria172.05
A). Complainant Dattu @ Dattatraya Gopinath
Bhange (PW-2) filed FIR dated 7th April 2001 with
police station Bhada, Dist-Latur. The offence was
registered as Crime No.26 of 2001 on 8 th April 2001
at 6.15 a.m. In brief, the complainant reported to
the police that on 6th April 2001 at about 4.00 -
5.00 p.m. while he was proceeding towards his
field and came near the house of one Dayanand
Shinde (PW-3), he saw that there was quarrel going
on between Dayanand and accused No.1 Sanjay and he
intervened. Later on, he and his brother Ram (PW-
5) were in their village at Taka, Tq-Ausa, and at
about 7.00 p.m. they were near the bank and
proceeding towards their house. At that time
accused Nos.1 to 3 came there and called them and
asked complainant as to why he intervened in their
quarrel with PW-3 Dayanand and started abusing.
Accused No.1 Sanjay and accused No.2 Babasaheb
held complainant and accused No.3 Ramchandra held
PW-5 Ram. Suddenly accused No.1 Sanjay took out
cria172.05
knife and when complainant tried to avoid the
assault, the same hit on his right leg and he
started bleeding. Accused No.2 Babasaheb hit him
by belt on his back and stomach, because of which
there were marks of wound. Ram was hit by accused
No.3 on nose by stone and was injured on his
forehead and nose. At that time one Rajendra
Bhange (PW-4) Gopikishan Nivrutti and Vishwanath
Bhange (PW-6) and others intervened.
B). On receiving such FIR, the offence was
registered and police Head Constable Devidas Mali
(PW-9) investigated the offence. He prepared Spot
Panchnama (Exhibit 36). He seized clothes of the
person of the complainant (Exhibit 23). He seized
knife (Exhibit 44). Statements of witnesses were
recorded and after completing investigation,
charge-sheet came to be filed.
3. The J.M.F.C. framed charge under Sections
mentioned above. Prosecution brought on record
cria172.05
evidence of 10 witnesses. The defence of the
accused persons is of denial. According to them,
it was rather the complainant and his witnesses,
who had attacked the accused persons causing
injuries to accused No.3 Ramchandra, and false
case was filed. According to the accused, against
the complainant and other witnesses State filed
Criminal Case R.C.C. No.221 of 2001.
4. I have heard learned A.P.P. for State.
According to him, the Judgment recorded by the
trial Court was correct and there was correct
appreciation of the facts and the accused had been
rightly convicted and Sessions Court could not
have interfered with the conviction.
5. Counsel for the accused supported the
Judgment of the Sessions Court and according to
her, offence was not established.
6. Regarding the incident, complainant Dattu
cria172.05
deposed as PW-2 and proved FIR Exhibit 28. PW-3
Dayanand was called regarding the earlier incident
which was the cause of the subsequent incident
taking place. He turned hostile. But later on
accepted the statement recorded by the police.
PW-4 Rajendra Bhange deposed regarding the
incident but claimed to have reached later on.
PW-5 Ram Bhange supported his brother complainant
Dattu. Vishwanath Bhange (PW-6) (the uncle of PW-2
and PW-5) claimed that he had reached the spot
after hearing the noise. He supported the
complainant PW-2 and PW-5. These are the witnesses
regarding the incident.
7. PW-1 Gunwant, the Panch regarding seizure
of clothes of the complainant turned hostile. Even
otherwise, this Panchnama is dated 18th April 2001,
much after the offence was registered on 8th April
2001. The Panch of the Spot-Panchnama Exhibit 36
PW-7 Balbhim also turned hostile. The seizure of
the knife Panchnama Exhibit 44 has been proved by
cria172.05
PW-9 police Head Constable Devidas Mali. The Panch
of seizure of kinife Panchnama, PW-10 Hanmant also
turned hostile. Apart from this, if the Panchnama
Exhibit 44 is perused, it does not state as to
from whom the knife was seized. In fact the police
Head Constable Devidas even in evidence did not
state from where the knife was seized.
8.
If the Judgment of the trial Court is
perused, it reproduced the evidence of various
witnesses in details. The actual reasonings of the
trial Court appear from Para 25 of its Judgment
and the trial Court was of the view that the
statements of PW-4 to PW-6 are consistent to the
effect that the accused persons in furtherance of
common intention assaulted complainant PW-2 and
injured PW-5 with the help of knife, stone and
"skin"(?) belt. Trial Court observed that the
contention of the complainant and other witnesses
PW-4 and PW-6 fully corroborated story of the
complainant. It also observed that the medical
cria172.05
officer PW-8 Dr.Sunita corroborated the story of
the complainant. Trial Court was of the view that
only because independent witnesses were not
examined, is not sufficient to discard the
testimony of the witnesses examined. However,
trial Court observed that as the prosecution
failed to prove seizure Panchnama of clothes, Spot
Panchnama and seizure Panchnama of knife,
essential ingredients of Section 324 were not
established and with such observation, concluded
that the accused persons deserve to be acquitted
for the offence under Section 324 of IPC.
Observations of the trial Court show that it noted
that there were inimical terms between the
complainant and accused and the accused had also
filed criminal case against the complainant having
R.C.C. No.221 of 2001. Accordingly the trial Court
convicted the accused persons for offence under
Section 323 and sentenced them to rigorous
imprisonment for one month and Rs.500/- fine each.
cria172.05
9. When the matter was carried to the
Sessions Court, the Sessions Court firstly took
stock of the medical evidence (Para 10 to 12 of
its Judgment) and recorded the fact that the
medical certificate of complainant PW-2 which was
at Exhibit 37 showed that complainant had only one
injury which was in the glutal region i.e.
buttocks and PW-5 Ram had three injuries as seen
in Exhibit 38. All the injuries of these two
witnesses were simple injuries. Thereafter the
Sessions Court took note of the facts that the
seizure of clothes Panchnama, Spot Panchnama and
seizure of knife Panchnama were not duly proved.
The Sessions Court proceeded to discuss the oral
evidence thereafter and has recorded comments
regarding the evidence of PW-2 to PW-6 and read
the oral evidence along with the medical evidence
to find that there were inconsistencies and
medical evidence did not match with the oral
evidence.
cria172.05
10. I have gone through the evidence of the
witnesses. The FIR Exhibit 28 claims with regard
to the earlier incident that when the complainant
was going to his field, he saw a quarrel between
PW-3 Dayanand and accused No.1 Sanjay and
intervened and took along Dayanand to his field.
In evidence, however, the complainant claimed that
accused No.1 went to the house of PW-3 Dayanand
"with stick in his hand". The complaint did not
say that in that part of the incident, a stick had
been used.
11. PW-2 Dattu claimed that he and his
brother Ram (PW-5) came to the village and accused
No.3 was sitting near the bank and asked
complainant why he had interfered in their dispute
and soon it is claimed that all the three accused
started assaulting the complainant. Although the
FIR Exhibit 28 claimed that the complainant and
his brother Ram were together when the accused
persons attacked them and gave details as to how
cria172.05
they were held and the injuries were caused which
I have already mentioned earlier, in oral evidence
the complainant PW-2 did not give details
regarding the assault on PW-5 Ram. He claimed that
accused No.1 Sanjay came with the knife in his
hand and that accused No.1 assaulted him with
knife. He did not depose anything as to on which
part of his body he suffered the injury. In oral
evidence, complainant claimed that accused No.2
hit him by belt on his back and stomach. FIR had
claimed that he had marks of wound. Medical
certificate Exhibit 37 however does not refer to
any other injury except incise wound to the glutal
region. In oral evidence, complainant claims that
when he was being so beaten, his brother came
running. Thus, although in FIR he claims that they
were together, in oral evidence the brother is
shown as coming later on. The complainant claimed
that he lay unconscious. Thus he did not give any
particulars regarding how PW-5 was injured.
cria172.05
12. Complainant denied that on 6th April 2001
accused No.3 Ramchandra filed complaint against
him for assault by an axe for which R.C.C. No.221
of 2001 was filed. Although he denied this, he
volunteered to say that false case had been filed.
He, thereby, accepted that indeed case had been
filed. The evidence of PW-9 the investigating
officer Devidas Mali shows that such case was
filed on the complaint of accused No.3 Ramchandra
and it related to injury caused to Ramchandra on
head by an axe and which axe was seized from PW-3
Dayanand and that the accused Ramchandra had been
referred to the hospital. This evidence shows that
in the present matter, the prosecution suppressed
that accused No.3 Ramchandra had also been injured
in the incident and genesis of the incident was
not brought on record. Thus, the evidence of the
complainant and his witnesses must be treated as
speaking only one side of the incident which suits
them.
cria172.05
13. PW-3 Dayanand, claimed earlier two
incidents of the same day although complainant has
referred to only one. He claimed that on 6th April
2001 he was near the Bandh and at about 5.00 -
6.00 p.m. he had asked accused to go away from the
road. He did not specify which accused he was
referring. He claimed that the accused came in
front of his plough and started abusing him and at
that time only both of them were present. He
claimed that accused hit him with stick and put
him on ground and sat on his chest and pressed his
throat. Then he says he pulled away (?) the
accused and ran to his house. Evidence of PW-3
then is that on same day accused No.1 came in
front of his bullock cart at about 5.00 - 6.00
p.m. and hit him on his head by stick and at that
time also only both of them were present. Then he
deposed that PW-2 Dattu came "after" that dispute
was over and had given him to understand. This
witness accepts that he has disputes of common
Bandh with accused persons. Although he claims
cria172.05
that he was hit by stick, he stated in cross-
examination that he was not injured and so did not
file complaint against accused No.1. He wanted to
deny there was cross case R.C.C. No.221 of 2001
pending against him but admitted that they had
obtained bail in that case. He admits that he has
filed criminal case against the accused persons.
14.
PW-4 Rajendra is paternal uncle of PW-5
Ram. His evidence shows that he reached after the
incident had taken place. He claimed that he saw
persons had gathered and there was assault. He
claimed that accused No.1 assaulted PW-2 Dattu
with knife. However, he stated that the quarrel
had stopped when he reached there. Thus, the
evidence of this witness can be stated to be on
the basis of assumption or hear-say. He also
admits that accused No.3 had lodged criminal case
and he and the accused are not having good terms.
15. PW-5 Ram claimed that he and his brother
cria172.05
had gone to the village. His evidence is that he
lagged behind. According to him, he saw that there
was assault on his brother. His evidence is that
when he reached, accused No.3 Ramchandra had hit
him by stone on his head and nose and accused No.1
was having knife and accused No.2 had hit by belt.
He did not say as to whom accused No.2 Baba hit by
belt and what accused No.1 Sanjay did with the
knife he had. His cross-examination shows that he
reached the spot after ten minutes of the dispute
starting and there were already 5-25 people
gathered. Although he claimed that he was hit by
accused No.3 by stone on his head and nose,
medical certificate Exhibit 38 states that he had
abrasion on nose, abrasion on left cheek and
contusion to his left shoulder. It is not clear as
to the manner in which the stone was hit.
16. If the evidence of PW-6 Vishwanath is
perused, he is also uncle of PW-2 and PW-5. He
claims to have reached the spot after one minute
cria172.05
of accused No.1 assaulting the complainant. His
evidence is that hearing the noise he went to the
road and at that time accused No.1 had hit knife
to Dattu and Dattu had sustained injury on right
side of his wrist and was lying down. He claimed
that PW-5 Ram came there and accused No.3 hit Ram
by stone on his head and nose.
17.
In the present matter, although the
offence took place on 6th April, 2001, the
complaint dated 7th April 2001 was registered on
8th April 2001 and there is no explanation
regarding such delay.
18. It is quite clear that the parties had
strained relations and although evidence is that
there were other people also who had gathered,
only interested witnesses, who are relatives or
injured, have been examined regarding the
incident. The Sessions Court has discussed the
evidence of the witnesses in details and recorded
cria172.05
particulars regarding different versions and the
evidence not matching with the medical
certificates. The Sessions Court considered the
enmity between the parties and concluded that
offence under Section 323 of IPC was also not
established. I find that the view taken by the
Sessions Court of the evidence, is a possible
view. Apart from that one aspect which does not
appear to have been discussed in the Judgments of
two Courts below but which is appearing from the
medical certificate Exhibit 37 is that medical
certificate Exhibit 37 records that complainant
Dattatraya was taken to PW-8 Dr. Sunita at rural
hospital Ausa by relatives. The time of
examination recorded in the certificate is that of
6th April 2000 at "2.50 p.m.". No doubt the doctor
deposed that she had examined the complainant
Dattatraya at 8.50 p.m. and this evidence was not
challenged in the cross examination, but I have
checked the original certificate also from the
record of the trial Court and find that in
cria172.05
Exhibit 37 the time mentioned was indeed 2.50 p.m.
In fact in Exhibit 38 which was issued to PW-5
also there appears over-writing in the time which
is apparent to the naked eye. I am aware of the
fact that this was not taken up in the trial Court
or the first appellate Court and neither any
arguments were advanced before me, but having seen
such documents on record I am comfortable with the
fact that the Judgment of the Sessions Court does
not deserve to be interfered with for above and
the reasons which the Sessions Court has recorded.
The view taken by the Sessions Court of the
evidence, is a possible view. The trial Court had
strained itself to convict the accused persons for
the offence under Section 323 of IPC.
19. I thus do not find substance in the
Appeal. The Appeal is dismissed. Bail bonds of the
Respondents-accused are cancelled.
[A.I.S. CHEEMA, J.]
asb/MAY16
