Bombay High Court
Naresh Dattuji Dhawale vs State Of Mah.Thr.P.S.O.Ngp on 18 August, 2017
Bench: Swapna Joshi
1 Judg. 180817 apeal 306.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.306 of 2003
Naresh Dattuji Dhawale,
Aged about 27 years, Occ.-Service,
R/o.-Sweeper Colony, Gangabai Ghat,
Nagpur (In Jail). .... Appellant.
-Versus-
The State of Maharashtra,
through P.S.O. Lakadganj Police Station, Nagpur. .... Respondent.
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Mr. R.M. Patwardhan, Counsel for appellant.
Mrs. S.Z. Haider, Additional Public Prosecutor for State.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 18
August, 2017.
ORAL JUDGMENT
The present appeal has been preferred by the appellant against the
judgment and order dated 23-05-2003 delivered by the 1st Ad-hoc
Additional Sessions Judge, Nagpur, in Sessions Trial No.78 of 2001,
thereby the appellant has been convicted for the offence punishable
under Section 324 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in
default, to suffer rigorous imprisonment for two months.
The learned trial Judge has acquitted the appellant of the offences
punishable under Sections 326 and 307 of the Indian Penal Code,
2 Judg. 180817 apeal 306.03.odt
Section 4 read with Section 25 of the Arms Act and Section 135 of the
Bombay Police Act.
2] I have heard Mr. R.M. Patwardhan, the learned Counsel for the
appellant and Mrs. S.Z. Haider, the learned Additional Public Prosecutor
for the respondent-State. I have carefully gone through the record of the
case.
3] The prosecution case, as it is unfolded during the course of trial, is
succinctly narrated as under :-
Complainant Nitin (PW-1) was the friend of Gabbar @ Vinod
(PW-3). They were the residents of Gangabai Ghat, Sweeper Colony,
Nagpur. The accused persons were also from the same locality. The
incident took place on 12-05-2000 at about 9.30 pm. PW-1 and PW-3
were passing from in front of the house of accused Naresh Dhawale. The
sister-in-law of accused Naresh was standing in front of the house of
Santosh and they asked her as to whether she had taken meal. Thereby
accused Naresh and his brother Suresh Dhawale (acquitted accused)
quarreled with PW-1 and PW-3. Thereafter, PW-1 and PW-3 went away
from that place. At about 10.00 o'clock, when they were proceeding to the
pan stall, accused Naresh and Suresh (acquitted accused) restrained
them in front of the flag near the Boudha statue and asked them as to why
they teased their sister-in-law. Accused Naresh got annoyed and took
out a knife and assaulted on PW-1 on his right buttock portion. Gabbar
@ Vinod (PW-3) tried to rescue him. On this, Suresh Dhawale dealt a
blow of sword on the right wrist of Gabbar @ Vinod which he was holding
3 Judg. 180817 apeal 306.03.odt
with him and thus caused injury to Gabbar @ Vinod. Thereafter, they both
fled away from that place. PW-1 and PW-3 proceeded to the Police
Station in injured condition. PW-6 referred them to Mayo hospital for
medical treatment. The complaint of Nitin was recorded at the hospital
(Exhibit-11). On the basis of the said complaint, the offence was
registered. The necessary investigation was carried out by PW-6. After
completion of investigation, charge-sheet was filed.
4] The charge was framed by the learned Additional Sessions Judge.
The trial was conducted and the learned Additional Sessions Judge
thereby convicted accused Naresh as aforesaid. At the time of trial, there
was one more accused Suresh Dhawale. He was acquitted of the
offences punishable under Sections 326 and 307 of the Indian Penal
Code, Section 4 read with Section 25 of the Arms Act and Section 135 of
the Bombay Police Act.
5] The learned Counsel for the appellant vehemently argued that the
judgment and order passed by the learned Additional Sessions Judge is
illegal and perverse inasmuch as the learned Additional Sessions Judge
convicted the present appellant by believing a part of testimony of the
witnesses and on the basis of the same set of facts he disbelieved the
testimony, in concerned with accused Suresh.
6] Mr. Patwardhan, the learned Counsel for the appellant further
submitted that there is no recovery of alleged weapon from accused
Naresh. He further submitted that in the testimony of witnesses there is
material discrepancy and as much as the testimony of PW-1 is concerned,
4 Judg. 180817 apeal 306.03.odt
it is not at all in consonance with the contents written in the First
Information Report (Exhibit-11).
7] Mrs. S.Z. Haider, the learned Additional Public Prosecutor for the
State contended that, the learned Additional Sessions Judge has rightly
convicted the appellant for the offence punishable under Section 324 of
the Indian Penal Code. She submitted that although there is no recovery
at the instance of accused Naresh, however, weapon sword is recovered
from the house of accused Suresh which was allegedly used in the
offence.
8] I have heard the rival contentions of the learned Counsel for the
appellant as well as the learned APP. It is necessary to go through the
testimony of the witnesses relied upon by the prosecution, in order to find
out whether the allegations made against the appellant are correct or not.
9] So far as the testimony of Nitin (PW-1) is concerned, he is an
injured witness as well as the complainant. According to him, on
12.05.2000 at about 9.30 pm, he along with Gabbar @ Vinod proceeded
towards the pan stall. When they were at pan stall accused Naresh came
there. Accused Naresh asked him whether he had said anything to his
sister-in-law. On this PW-1 said that, he had not said anything to his
sister-in-law. On this again accused Naresh said that, he has said
something to his sister-in-law. Suddenly, accused Naresh took out a knife
from his pocket of his trouser. He gave a blow of knife on the head of
PW-1. On this Gabbar @ Vinod (PW-3) asked the accused Naresh to
take PW-1 to the hospital. On this accused persons assaulted Gabbar
5 Judg. 180817 apeal 306.03.odt
@ Vinod by a long knife which was like a sword. Accused Naresh
brought that knife for assaulting Gabbar @ Vinod from his house. The
assault on Gabbar @ Vinod took place in front of the house of Naresh,
The house of Naresh was at a distance of 20 ft. Accused Naresh gave a
blow of knife on both the writs of Gabbar @ Vinod, due to which he
sustained injuries to his both the writs. Thereafter, PW-1 along with
Gabbar @ Vinod (PW-3) proceeded to the Police Station. The complaint
of PW-1 was reduced into writing by the Police machinery (Exhibit-11).
Thereafter, PW-1 and PW-3 were taken to the Mayo hospital for medical
treatment. PW-1 identified the sword 'Article-A' as a weapon used by
the accused for assaulting on Gabbar @ Vinod. PW-1 further stated
that when Gabbar @ Vinod had gone towards the house of Naresh at
that time accused standing in front of his house. Accused Naresh and
Suresh caught hold of Gabbar @ Vinod. Accused Suresh then caught
hold hands of Gabbar @ Vinod and accused Naresh gave a blow of knife
which looks like sword on both the wrists of Gabbar @ Vinod.
10] On careful scrutiny of testimony of PW-1, it is noticed that, there are
various discrepancies in his testimony. His testimony is not at all in
consonance with the First Information Report (Exhibit-11) which was
lodged during the same night. It is noticed that a new story about the
assault has come up in the evidence of PW-1. The First Information
Report (Exhibit-11) reveals that, accused Naresh took out a knife which
he had with him and assaulted PW-1 on his right buttock portion. On this
Gabbar @ Vinod (PW-3) tried to rescue him, on this accused Suresh dealt
6 Judg. 180817 apeal 306.03.odt
a blow of sword on the right wrist of PW-3. Whereas, before the Court
PW-1 stated that, accused Naresh gave a blow of knife on his hip and
accused Naresh also assaulted Gabbar @ Vinod (PW-3) by a long knife
looking like a sword which indicates that there were two different weapons
used by accused Naresh. The weapon knife was used to assault PW-1
on his hip, whereas a long knife looking life sword was used by him to
assault PW-3, which he brought from his house. The First information
Report depicts that the incident of assault had taken place in front of flag
near Boudha statue, whereas the deposition of PW-1 indicates that the
incident had taken place in front of the house of accused Naresh. The
testimony of PW-1 shows that the blow of knife was given on the wrist
by means of knife by accused Naresh, whereas the FIR indicates that
PW-3 Gabbar @ Vinod was assaulted by accused Suresh by means of
sword on his wrists. There are glaring discrepancies in the testimony of
PW-1 as compared to report (Exhibit-11). Hence, PW-1 is not found to
be a reliable witness and his testimony does not inspire confidence.
11] So as to the testimony of PW-3 is concerned, PW-3 deposed that
at about 7.00 pm he was present near the pan stall of Delikar. Nitin
(PW-1) was standing near Boudha Vihar which was at a distance of
10 feet from the place of PW-1. Both the accused came to that place.
Accused Suresh was assaulted with sword and accused Naresh was
possessing knife. Accused Naresh gave a blow of knife on the hip of
Nitin. PW-3 asked accused to take Nitin to the hospital. Accused Naresh
caught hold of his collar. At that time, Santya, Raja Dhawale and the
7 Judg. 180817 apeal 306.03.odt
relatives of the accused were present there. The sister of accused caught
hold of him from behind. Accused Suresh gave a blow of sword on his
wrist. Santya brother of accused assaulted him with long knife. Thereafter,
all the accused fled away. PW-1 and PW-3 then proceeded to the
Lakadganj Police Station. PW-3 was referred to Mayo Hospital for medical
examination. He was then taken to Government Medical College.
Significantly, PW-3 stated that the sword 'Article-A' is not the same sword
by which accused were assaulted on him. PW-3 stated that accused
was not assaulted by sword, he was assaulted by a big knife and Pharsha.
There are various discrepancies in the testimony of PW-3 and it does not
corroborate with the testimony of PW-1 and PW-3 has come up with a
different case before the Court and he has involved some other person
namely Santya in the offence. PW-3 has stated that Santya assaulted
him with long knife. In view thereof, there is discrepancy in the testimony
of PW-3 which goes to the root of the case. PW-3 does not seem to be a
reliable witness and his testimony does not inspire confidence at all.
12] As far as the medical evidence is concerned, Dr. Snehal Manekar
(PW-7) the Medical Officer is examined. He has found the following
injuries on the body of Nitin as under :-
"1) Laserated wound over left buttock, size tranvars
2 x ½ cm muscle deep."
According to PW-7 the injuries may be caused by hard and sharp
object. He issued a medical certificate (Exhibit 24).
13] As regards the injury of PW-3, the prosecution relied upon the
testimony of Ramesh (PW-8). According to PW-8, he has found the
8 Judg. 180817 apeal 306.03.odt
following injuries on the body of PW-3, as under :-
"Incise wound on right and left wrist joint of hand
of size 4 cm. X ½ cm each."
14] Significantly, Exhibit 24 which is the injury certificate of PW-1, it
reveals that there was assault by somebody at 9.30 pm. It is not clear as
to why the name of accused persons did not reflect on Exhibit-24.
Significantly, PW-8 stated that the injuries caused to Gabbar @ Vinod
(PW-3) can be caused by a sharp edged weapon like knife (Kukri). The
testimony of PW-8 indicates that PW-3 was assaulted by means of knife
and not sword. However, in view of the discrepancies in the testimony of
PW-1 and PW-3 it is not clear as to which weapon PW-1 and PW-3 were
injured. No doubt PW-1 and PW-3 had received injuries on their body.
However, in view of the discrepancies in the testimony of PW-1 and PW-3,
which go to the root of the case, their testimony cannot be relied upon and
in view thereof it can be said that, PW-1 and PW-3 had received injuries.
However, it cannot be safely stated that the accused is the author of those
injuries caused to PW-1 and PW-3.
15] As far as the investigation is concerned, sword was received from
the house of accused Suresh. There is no recovery of knife from any of
the accused. It may be mentioned here that from the judgment of the
learned trial Court it appears that the trial Court has erroneously believed
the testimony of witnesses on the same set of facts so far as the accused
Naresh is concerned. Whereas, the learned Judge has acquitted
accused Suresh based on the testimony of the same witnesses.
Apparently, the judgment of the learned trial Judge appears to be illegal
9 Judg. 180817 apeal 306.03.odt
and preserve and it needs to be set aside. Hence, the following order:-
O r d e r
(a) Criminal Appeal No.306 of 2003 is allowed.
(b) The judgment and order dated 23-05-2003 delivered
by 1st Ad hoc Additional Sessions Judge, Nagpur
in Sessions Trial No.78 of 2001 is quashed and set
aside to the extent of punishment of accused Naresh
s/o Dattuji Dhawale.
(c) The appellant is acquitted of the offence under
Section 324 of I.P.C.
(d) The bail bond furnished by the appellant stands
cancelled.
(e) Muddemal property be dealt with as directed by Trial
Court after the appeal period is over.
JUDGE
Deshmukh
