Bombay High Court
Raghunath S/O Ramkrishna Sushir ... vs State Of Maharashtra on 10 August, 2017
Bench: Swapna Joshi
1 Judg. 100817 apeal 255.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.255 of 2003
1] Raghunath Ramkrishna Sushir,
Aged about 51 years,
2] Bhagwat Dayaram Sushir,
aged 24 years,
3] Ravindra Ramkrishna Sushir (Abated)
Aged 35 years,
4] Pandit Ramkrishna Sushir,
Aged 35 years,
5] Eknath @ Dayaram Laxman Sushir,
Aged about 60 years,
6] Nivrutti Dayaram Sushir,
Aged 33 years,
7] Gajanan Dayaram Sushir,
Aged 28 years, .... Appellants.
-Versus-
The State of Maharashtra,
through Police Station Dhamangaon Badhe,
District Buldana. .... Respondent.
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Mr. P.B. Patil, Counsel for appellants.
Mrs. S.Z. Haider, Additional Public Prosecutor for State.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 10
August, 2017.
ORAL JUDGMENT
2 Judg. 100817 apeal 255.03.odt
This appeal has been preferred by the appellants against the
judgment and order dated 24-03-2003 delivered in Sessions Case
No.85 of 1999 by the learned Ad-hoc Additional Sessions Judge, Buldana,
thereby convicting the appellants for the offence punishable under Section
324 read with Section 149 of the Indian Penal Code and sentencing to
suffer rigorous imprisonment for one year each and to pay a fine of
Rs. 500/- each, in default to suffer rigorous imprisonment for 8 days each.
The learned trial Judge further convicted all the accused under
Section 147 read with Section 149 of the Indian Penal Code and directed
to suffer rigorous imprisonment for six months each and to pay a fine of
Rs. 200/- each, in default to suffer rigorous imprisonment for five days
each.
All the accused are further convicted under Section 148 read with
Section 149 of the Indian Penal Code and directed to suffer rigorous
imprisonment for one year each and to pay a fine of Rs. 500/- each in
default to suffer rigorous imprisonment for 8 days each.
2] I have heard Mr. P.B. Patil, the learned Counsel for the appellants
and Mrs. S.Z. Haider, the learned Additional Public Prosecutor for the
respondent-State.
3] I have carefully gone through the record of the case and the
impugned judgment and order. The learned Counsel for the
appellants/accused vehemently argued that the judgment and order
passed by the learned Additional Sessions Judge is illegal and perverse
to the extent that the learned Judge had failed to consider the testimony
3 Judg. 100817 apeal 255.03.odt
of the witnesses in right perspective, as the alleged eye witnesses had
resiled from their evidence before the Court and during the cross
examination a new case has been brought up by the witnesses;
particularly Sumanbai (PW-2) that the accused persons assaulted by 'iron
pinch' instead of stick. He further submitted that, in fact, there was a
scuffle in between the witnesses and the accused persons. In the said
incident, they also received the injuries and a cross case was lodged
against the witnesses by the appellants. Mr. Patil, the learned Counsel for
the appellants submitted that since there was enmity between the
witnesses PW-2, PW-9 and Kashinath and the accused persons, a false
case has been filed against the accused persons. He submitted that
Gajanan Sushir (original accused no.8) had lodged complaint against
Kashinath who was the husband of PW-2. However, he expired before
the commencement of trial and therefore the case against Kashinath
stood abated. According to Mr. Patil, the learned Counsel for the
appellants, all the accused are entitled for acquittal.
4] The learned Additional Public Prosecutor submitted that the
prosecution has led a clear and cogent evidence before the trial Court.
Hence, the trial Court had rightly convicted the accused persons.
5] The prosecution has examined in all 9 witnesses. Shobhabai
(PW-1) is the complainant and injured witness, Sumanbai (PW-2) is the
eye witness and injured witness, Dr. Madan (PW-3) is the Medical Officer
who examined PW-1, PW-2 and Kashinath (since dead), Samadhan
(PW-4) is the ASI who referred the injured for medical examination,
4 Judg. 100817 apeal 255.03.odt
Shantaram (PW-5) is the alleged eye witness, Pundlik (PW-6) is also the
alleged eye witness, Ukharda (PW-7) is the husband of the complainant
and alleged eye witness, Ajay (PW-8) is the hostile panch, Kundlik
(PW-9) is the Investigating Officer. It may be mentioned here that accused
Sandeep was tried before the Juvenile Justice Board and he was
acquitted.
6] The brief facts of the prosecution case are that;
PW-1, PW-2, PW-3, PW-5, PW-6 and PW-7 are related to each
other. The complainant and the witnesses aforesaid as well as the
accused persons are the residents of Liha, Taluka Motala, District
Buldana. The complainant (PW-1) along with her husband, children and
mother-in-law was residing behind Marathi Primary School. The tailoring
shop of accused Ravindra (since dead) was adjoining to her house.
There was a common wall in between her house and the house of
Ravindra. All the accused were the neighbours of PW-1. On 12-04-1999,
at about 7.00 am, Ravindra opened his shop and due to that the mud
wall fell down in the house of complainant. The complainant, therefore,
made enquiry with her mother-in-law Sonabai as to why she had removed
the stick from the bathroom. On this, accused Ravindra came in front of
her house and he enquired with her as to why she was abusing him. On
this the complainant told that, she was not abusing him. Accused
Ravindra started abusing the complainant by saying "Chhinal, Gadhadi".
In the meanwhile, Raghunath (accused no.1), Pandit (accused no.4),
Vimalbai (accused no.7, acquitted by trial Court), Sandeep (juvenile in
5 Judg. 100817 apeal 255.03.odt
conflict with law) came to the house of the complainant. They all were
holding sticks in their hands. Pandit (accused no.4) assaulted on the
complainant by stick near her left hand and left eye. She was then
beaten by Ravindra (accused), Sandeep (accused) by stick on the right
side of her head. Vimal (accused) assaulted the complainant on her
stomach by means of kicks and fist blows. The husband of complainant
came there and intervened. So also one Ramdas Lawange (not
examined) also intervened. The complainant then proceeded to the Police
Station to lodge the report. When the complainant was at the bus stop, at
about 7.30 am Sumanbai (PW-2) along with her husband (PW-7) met
her at the bus stop. Eknath (accused no.5), Bhagwat (accused no.2),
Nivrutti (accused no.6), Gajanan (accused no.8) and Ravindra (accused
no.3) came to the bus stop. They were holding sticks in their hands.
Eknath (accused no.5) told to Bhagwat (accused no.2) as "Chopadepana
Karte, Suman la Mar". Bhagwat (accused no.2) then assaulted Sumanbai
by stick on her head. Husband of Sumanbai namely Kashinath (dead)
tried to rescue Sumanbai. Eknath (accused no.5), Ravindra (accused),
Pandit (accused no.4), Gajanan (accused no.8) and Nivrutti (accused
no.6) then assaulted to Kashinath by means of sticks. He received
injuries on his head, right ear, left hand, back and stomach. Kashinath fell
down. It is the case of the prosecution that PW-5 and PW-6 came to that
place and pacified the accused persons. Thereafter, the complainant
along with other injured rushed to Dhamangaon Badhe Police Station.
She lodged her complaint (Exhibit-43).
6 Judg. 100817 apeal 255.03.odt
7] On the basis of the said complaint the offence was registered. The
necessary investigation was carried out by the Investigating Officer. The
charge-sheet was filed. The learned trial Judge after going through the
evidence recorded the conviction of the accused persons as aforesaid.
8] PW-1 was knowing all the accused persons, in view thereof, there
is no doubt so far as the identity of accused persons is concerned.
9] The prosecution heavily relied upon the testimony of PW-1 i.e the
complainant. According to PW-1 all the accused are her neighbours.
2 to 3 years prior to the incident there was a dispute between PW-1 and
Ravindra (accused) in respect of wall which was situated in between her
house and shop of Ravindra. PW-1 stated that on 12-04-1999, at about
7.00 am he opened his shop, due to which the mud of the wall fell down
in her house. She enquired with her mother-in-law Sonabai as to why
she had removed the stick from bathroom. On this, Ravindra (since
dead) came in front of her house and enquired to PW-1 as to why she was
abusing him. PW-1 told him that she was not abusing him. The Ravindra
at that time abused to PW-1 by saying "Chhinal, Gadhadi". In the
meanwhile, Raghunath (accused no.1), Pandit (accused no.4), Vimalbai
(accused no.7) and Sandeep came to her house. They were holding
sticks in their hands. Pandit (accused no.4) assaulted her by means of
stick near her left eye, due to which she received injuries. Then Ravindra
and Sandeep assaulted by means of stick on right side of her head,
Vimal assaulted on her stomach by means of kicks and fist blows. PW-1
stated that her husband and Ramdas Lawange came there and rescued
7 Judg. 100817 apeal 255.03.odt
them. Thereafter, PW-1 proceeded to lodge her complaint.
10] According to PW-1, when she went to the bus stop Liha at about
7.30 am, PW-2 along with her husband PW-7 met her at the bus stop. At
that time, Eknath (accused no.5), Bhagwat (accused no.2), Nivrutti
(accused no.6), Gajanan (accused No.8) and Ravindra (accused) arrived
at the bus stop. They were holding sticks in their hands. Eknath (accused
no.5) said to Bhagwat (accused no.2) "Hi Chopadepana Karte,
Sumanbaila Mar" on this Bhagwat assaulted Sumanbai by stick on her
head. Husband of Sumanbai namely Kashinath (deceased) tried to
rescue Sumanbai. Eknath (accused no.5) and Ravindra (accused since
dead), Pandit (accused no.4), Gajanan (accused no.8), Nivrutti (accused
no.6) assaulted to Kashinath by means of stick on his right ear, left hand
and head due to which he sustained injuries on his head. Kashinath fell
down. At that time, PW-5 and PW-6 came to that place and pacified them.
PW-1 along with Sumanbai and Kashinath rushed to Dhamangaon Badhe
Police Station and lodged her complaint (Exhibit 43).
11] On careful scrutiny of testimony of PW-1, it is noticed that, few
discrepancies are pointed out in her version. So far as the weapon is
concerned, during the cross examination PW-1 stated that Eknath,
Ravindra, Bhagwat and Nivrutti were holding iron pinches. She further
stated that Eknath, Gajanan, Nivrutti, Bhagwat and Ravindra have
assaulted to Kashinath by means of iron pinches. She immediately stated
that they have not beaten to Kashinath by means of iron pinches. In view
thereof, it cannot be said that, PW-1 changed her version in the cross
8 Judg. 100817 apeal 255.03.odt
examination. Thus, the testimony of PW-1 has not been shaken in cross
examination. There are no material discrepancies found in her testimony.
The First Information Report (Exhibit-61) is in consonance with the
testimony of PW-1 and she is found to be reliable and trustworthy witness.
In fact, PW-1 is a most natural witness and her evidence is cogent and
clear. There is nothing to doubt her testimony.
12] The testimony of PW-1 is further corroborated by testimony of
PW-2. PW-2 deposed that, on 12-04-1999 at about 7.30 am, when she
was present in her house, her son informed her that Shobhabai has been
assaulted. She, therefore, rushed to bus stop. She found Shobhabai had
sustained injuries on her head. She tied handkerchief to her head.
Accused Eknath was present at the bus stop. He told his son Bhagwat
"Hi Chopadepana Karte" and instigated him to assault her. PW-2 further
stated that she was assaulted by Bhagwat by means of stick on her left
hand, stomach and back. She sustained injury on her head. The
husband of PW-2 came to the bus stop. At that time, Bhagwat, Gajanan,
Nivrutti, Ravindra and Eknath started assaulting to her husband Kashinath
by means of stick. He received injuries to his head, left ear, left hand,
back and stomach. Her husband fell down. Pundalik and Shantaram
came to that place and they pacified all of them. Thereafter, PW-2 along
with her husband and PW-1 proceeded to the Police Station. They were
referred to P.H.C. Dhamangaon Badhe. They all were examined by the
Medical Officer. PW-2 as well as her husband were referred by the
Medical Officer to General Hospital, Buldana. During the cross
9 Judg. 100817 apeal 255.03.odt
examination PW-2 stated that, Kashinath, Gajanan, Nivrutti, Bhagwat and
Ravindra were holding iron pinches in their hands and they were not
holding sticks in their hands. It is significant to note that, in the
examination-in-chief PW-2 has specifically stated that the accused
persons were holding sticks in their hands. She did not utter in
examination-in-chief that the accused persons were holding iron pinches.
It appears that PW-2 got confused in the cross examination and therefore
she must have uttered the word 'Iron Pinch'. At this juncture, it may be
mentioned here that so far as the seizure of articles is concerned, no
iron pinches were taken charge by the Police and the sticks were taken
charge by the Police from the accused persons. The Medical Officer
PW-3 has stated that the injuries are possible by sticks which were
shown to him. On careful scrutiny of PW-2, it is found that, she is
deposed before the Court in the natural manner. She has immediately
proceeded to the Police Station along with her husband and PW-1. The
complaint was recorded by the Police immediately. There is no delay as
such in lodging the complaint. Under these circumstances, only because
PW-2 uttered one or two sentences here and there in her cross
examination, on this count, her testimony cannot be disbelieved and PW-2
is found to be a reliable witness. The testimony of PW-2 corroborates on
all material particulars with the testimony of PW-1 and her testimony is
not shaken in the cross examination.
13] The prosecution has further examined Ukharda PW-7 who is the
husband of PW-1. He also stated that on 12-04-1999 at about 7 am
10 Judg. 100817 apeal 255.03.odt
Ravindra has opened his shop. Due to that mud wall fell down in his
house and therefore his wife enquired with his mother as to why she is
removing stick of bathroom and his wife came out of the house.
Thereafter, Ravindra started abusing his wife "Chhinal, Gadhadi and
Rand". He came out of his house. He saw Pandit, Raghunath, Ravindra,
Sandeep and Vimalbai were present in front of his house and they were
holding sticks in their hands. Pandit assaulted his wife near left eye by
stick, Ravindra and Sandeep assaulted his wife by stick on her head.
Raghunath and his wife Vimalbai assaulted his wife by kicks and fist
blows. His wife sustained bleeding injuries to her head. Thereafter,
Ramdas Lanwange pacified the accused persons. Then he along with
his wife proceed to the bus stop to go to Dhamangaon Badhe Police
Station. Sumanbai came to the bus stop. She cleaned the blood which
was oozing from the head of PW-1 and tied handkerchief to her head. In
the meantime, Eknath came to that place at about 7.30 pm. Eknath told
his son Bhagwat that "Hi Sumanbai Chopadepana Karate Tu Tila Mar".
On this, Sumanbai was assaulted by Bhagwat by stick on her head, due
to this she sustained bleeding injury. Thereafter, Kashinath came to that
place. Bhagwat, Gajanan, Ravindra and Nivrutti assaulted to Kashinath
by means of stick on his head, right ear, left hand, back and stomach. PW
7 stated that he along with Pundlik Chango Patil, Supda Patil and
Shantaram rescued the victims. Thereafter, PW-7 along with his wife
(PW-1), Kashinath and his wife (PW-2) proceeded to Dhamangaon
Badhe Police Station. The testimony of PW-7 corroborates the testimony
11 Judg. 100817 apeal 255.03.odt
of PW-2 as well as that of PW-1 and corroborates on all material
particulars and his testimony is not shaken in the cross examination. The
prosecution relied upon the testimonies of PW-5 and PW-6 who are
independent witnesses. Both of them saw Shobhabai along with her
husband at the bus stop and she had sustained injuries. Sumanbai was
cleaning the blood of Shobhabai. Eknath said to his son Bhagwat that "Hi
Bai Chopdepana Karate Hila Mar". On this, Sumanbai was assaulted by
Bhagwat by means of stick on her head. Due to which she sustained
bleeding injuries. Their testimony is not shaken in cross examination and
corroborates with the testimony of the victims.
14] On careful scrutiny of the testimony of all these witnesses it is found
that the testimony of all the witnesses corroborate with each other on all
material particulars and all are found to be reliable and trustworthy
witnesses. So far as the recovery of the weapon is concerned, the
prosecution has examined the Investigating Officer PW-9. The sticks
were recovered at the instance of Bhagwat (accused no.2), Ravindra,
Nivrutti (accused No.6) and Gajanan (accused no.7). It is the case of the
prosecution that all these accused persons showed the willingness to
point out the place where they had hidden the weapons i.e. sticks and
accordingly the sticks were taken charge from cattle shed at the instance
of Bhagwat from the house of Ravindra and from the cattle shed of
Nivrutti.
15] As far as the medical evidence is concerned, Dr. Madan (PW-3) the
Medical Officer, examined Shobhabai, Sumanbai and Kashinath (dead).
12 Judg. 100817 apeal 255.03.odt
The Medical Officer found the following injuries on the body of Shobhabai.
"1) Contused lacerated wound over right parital
region oblique in direction irregular margin,
measuring 4 c.m. X half c.m. X 1/3rd c.m.
2) Contused lacerated wound left side on
forehead oblique in direction, irregular margin,
measuring 3 c.m. X half c.m. X half c.m."
He stated that the injury nos. 1 and 2 may be caused by hard and
blunt object and the age of the injuries was within 24 hours. He issued
medical certificate (Exhibit 49). Thereafter, he was examined Sumanbai.
He found the following injuries on her body :-
"1) Contused lacerated wound on right pariatal
region oblique in direction irregular margin,
measuring 5 c.m. X half c.m. X 1/3rd c.m.
2) Abrasion over back side of right elbow joint
oblique in direction, irregular margin,
measuring 3 c.m. X half c.m.
3) Abrasion over lower leap oblique in direction,
irregular margin, measuring 1 c.m. X half c.m."
He stated that injury nos. 1 to 3 may be caused by hard and blunt
object and the age of the injuries was within 24 hours and he issued
medical certificate (Exhibit 50).
16] On careful scrutiny of the testimony of Medical Officer, it is noticed
that the medical evidence corroborates with the ocular testimony of the
witnesses i.e. PW-1, PW-2 and PW-4, PW-6 and PW-7 which is
consistent, clear and cogent. The Medical Officer has opined in clear
13 Judg. 100817 apeal 255.03.odt
terms that the injuries are possible by stick. The accused persons have
assaulted the ladies PW-1 and PW-2 mercilessly. Even they brutally
assaulted Kashinath. The incident had taken place in broad day light. No
cross case was brought on record by the accused persons.
17] The prosecution has proved its case beyond reasonable doubt.
The learned trial Court has rightly convicted the accused for the offences
mentioned above.
18] At this stage, Mr. Patil the learned Counsel for the appellants,
requests for grant of benefit under the Probation of Offenders Act, 1958 to
the appellants. Considering the nature of offence and the fact that both
the ladies i.e. Shobhabai (PW-1) and Sumanbai (PW-2) were assaulted
by the appellants/accused by means of stick at the bus stop without any
mercy, I do not think it fit that the appellants/accused should be given the
said benefit. Hence, the request made by learned Counsel for the
appellants for grant of benefit under the Probation of Offenders Act to the
appellants is rejected. Then he requested to grant time to the appellants to
surrender. The said request can be considered, as the appeal is pending
in this Court since long.
19] In view of the facts and circumstances, the following order is
passed:-
O r d e r
(a) Criminal Appeal No. 255 of 2003 is dismissed.
14 Judg. 100817 apeal 255.03.odt
(b) The judgment and order dated 24-03-2003 delivered
by learned Additional Sessions Judge, Buldana in
Sessions Case No.85 of 1999 stands confirmed.
(c) Appellants are on bail. Their bail bonds stand
cancelled. They be directed to surrender before
the learned Additional Sessions Judge, Buldana to
undergo the remaining period of sentence. If they
do not surrender, the learned trial Court is directed to
take appropriate action in accordance with law.
(d) Muddemal property be dealt with as directed by
Trial Court after the appeal period is over.
JUDGE
Deshmukh
