Bombay High Court
The State Of Maharashtra vs Dilip Ratan Gaikwad And Ten Ors on 7 December, 2017
Bench: T.V. Nalawade
Cri.Appeal 598/2002
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 598 OF 2002
The State of Maharashtra
(through P.S.O. Tahsil Police
Station, Dhule) ..Appellant
Versus
1. Dilip Ratan Gaikwad,
Age 27 years, Occu. Labourer
2. Dinesh Nimba Gaikwad,
Age 18 years, Occu. Labourer
3. Gotu Uttam Gaikwad,
Age 23 years, Occu. Labourer
4. Rajendra Ratan Gaikwad,
Age 35 years, Occu. Labourer
5. Ratan Vitthal Gaikwad,
Age 65 years, Occu. Labourer
6. Bhaskar Manga Pawar,
Age 40 years, Occu. Labourer
[7] Dashrath Vitthal Gaikwad, } Appeal abated as against
Age 62 years, Occu. Labourer } Resp.no.7 as per Court's
} order dated 21.6.2007
8. Pintya Dashrath Gaikwad,
Age 19 years, Occu. Labourer
9. Himmat Pundlik Gaikwad,
Age 32 years, Occu. Labourer
10. Pintu Fakira Pawar,
Age 21 years, Occu. Labourer
11. Bapu Vitthal Gaikwad,
Age 45 years, Occu. Labourer
All R/o Village Shirud,
Tahsil/District Dhule .. Respondents
Mr V.S. Badakh, A.P.P. for appellant
Mr Dnyaneshwar Patil Advocate h/f Mr N.B. Suryawanshi, Advocate for
respondents no.1 to 6
Appeal abated as against Respondent no.7 as per Court's order dated
21.6.2007
::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 04:00:02 :::
Cri.Appeal 598/2002
2
CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ
DATE OF RESERVING
THE JUDGMENT : 15.11.2017
DATE OF PRONOUNCING
THE JUDGMENT : 07.12.2017
JUDGMENT (Per A.M.Dhavale, J.)
1. The State has preferred this appeal against the judgment
delivered by II Additional Sessions Judge, Dhule on 15.6.2002 in
Sessions Case No.100/2001, whereby respondents no.1 to 11 were
acquitted of the offences punishable under Sections 147, 148, 447,
307 read with Sec 149 and 120 (B) of the Indian Penal Code.
2. The facts relevant for deciding this appeal may be stated as
follows :
P.W.2 Pandurang is the injured witness and the informant. On
9.10.2000, at about 7.15 p.m., he was brought to Civil Hospital, Dhule
in injured condition. P.W.14 Head Constable from Dhule police station
visited the hospital and recorded his statement in the form of dying
declaration. He has deposed that on receiving the message, he
visited the hospital, obtained certificate of Medical Officer that the
patient was stable to give the statement and recorded the statement
as per say of Pandurang. It is at Exh.49. He has registered the F.I.R.
and handed over the investigation to A.P.I. P.W.13 Patil. That time,
P.W.2 Pandurang disclosed that he and his brother Bhausaheb - P.W.7
were having separate agricultural lands in Shirud hamlet, near
Cri.Appeal 598/2002
Dhamangaon road at Shirud. Accused no.6 Bhaskar was having his
agricultural land near their lands. He was trying to create a right of
cart way through the field of P.W.7 Bhausaheb. He was obstructed by
P.W.7 Bhausaheb and P.W.2 Pandurang. Hence, accused no.6
Bhaskar had ill-feeling for them. On 9.10.2000 at about 4.00 p.m.,
P.W.2 Pandurang was grazing his bulls in his field. That time, all the
eleven accused had arranged a meals party in the field of Bhausaheb.
That time, accused no.6 Bhaskar came to him and accosted him, as to
why he and his brother were obstructing his right of cart way. After
verbal exchange and abusing accused no.6 Bhaskar brought all the
accused to his field. Accused no.2 Dinesh inflicted blow of an axe on
the skull of P.W.2 Pandurang. Accused no.3 Gotu and accused no.1
Deelip followed it with blows of the axe on both the legs below the
knee. Accused no.4 Rajendra, accused no.8 Pintya and accused no.6
Bhaskar started assaulting P.W.2 Pandurang with stones on his
abdomen, arm and back and the rest of the accused assaulted him
with fist and kick blows and abused him in filthy language and
intimidated him with threats of killing. The incident was witnessed by
P.W.8 Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11 Laxman.
They had rescued him and Laxman and one Bapu had taken him in a
bullock-cart to his house. His son Pravin brought him to the hospital.
The statement was read over to him and thereafter he admitted it to
be correct and signed it and thereafter the same was registered as
F.I.R. and crime was registered at C.R.No.351/2000. P.W.13 A.P.I.
Prakash Patil carried out investigation in the case. He got the
statement of P.W.2 Pandurang recorded through Executive Magistrate.
He drew spot panchnama and collected blood mixed soil and blood
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stained leaves, one stick and one handkerchief from the spot. All the
accused were arrested on the same day. During custody, accused
nos.1, 2 and 3 made voluntary statement and discovered the axes
used as weapon of offence which were seized by drawing
memorandum and panchnama. He recorded statements of material
witnesses, collected medical evidence, seized muddemal articles. He
also seized clothes of the injured witness. After completion of
investigation, charge-sheet was filed in the Court of Judicial
Magistrate, Dhule. In due course, the case was committed to the
Court of Sessions. The learned Additional Sessions Judge framed
charge at Exh.32. The accused pleaded not guilty. Prosecution
examined 13 witnesses. The learned Additional Sessions Judge did not
find the evidence fully convincing and reliable. Hence, the accused
were acquitted. Hence this appeal.
3. During the pendency of appeal, respondent no.7 - Dashrath has
expired and the appeal stands abated against him.
4. Learned A.P.P. submitted that the evidence of P.W.2 Pandurang
is cogent, consistent and reliable. It is consistent with his F.I.R. lodged
promptly. His evidence is well corroborated by medical evidence and
is also supported by P.W.12 Asha and P.W.7 Bhausaheb. The clothes
of the deceased were stained with blood. He fairly submitted that the
panchas to the discovery P.W.5 Abdul Majeed and P.W.6 Shaikh
Rasheed and the eye witnesses P.W.8 Ananda, P.W.9 Subhash, P.W.10
Bharat and P.W.11 Laxman have turned hostile and their evidence is
not supporting to the prosecution, but he submitted that the
remaining evidence was sufficient to hold the accused guilty.
Cri.Appeal 598/2002
5. Per contra, learned Advocate Mr Dnyaneshwar Patil holding for
Mr N.B.Suryawanshi for the respondents argued that the main
witnesses. P.W.8 Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11
Laxman shown as eye witnesses in the F.I.R. have turned hostile. The
discoveries allegedly made in presence of P.W.5 Shaikh Majeed and
P.W.6 Shaikh Rasheed are not supported by them. The weapons were
not having any blood stains. There is delay in lodging the F.I.R. The
injury certificate shows two contused lacerated wound on parietal
region, two lacerations on the legs, one bruise on the abdomen and
three swellings. These are not possible by the weapons disclosed in
the evidence and in the manner in which P.W.2 Pandurang had
described the assault. He submitted that the Tahsildar has passed
order admitting the claim of accused no.6 Bhaskar about right of way
through the field of P.W.7 Bhausaheb. The evidence of P.W.7
Bhausaheb and P.W.12 Ashabai is not trustworthy and reliable. The
accused had differences with P.W.7 Bhausaheb and not with P.W.2
Pandurang. The learned trial Judge has properly appreciated the
material and has rightly held that the evidence is not free from
reasonable doubt. The view taken by the learned trial Judge is
probable view and in the appellate jurisdiction, the same should not
be interfered with.
6. In the alternative, it is prayed that the injuries disclosed are not
serious and the offence under Section 307 of the Indian Penal Code is
certainly not disclosed.
Cri.Appeal 598/2002
7. The points for consideration with our findings are as follows :
(I) Whether it is proved that accused
nos.1 to 11 formed an unlawful
assembly with a common object
to assault P.W.2 Pandurang with
deadly weapons and used criminal
force ? .. Not proved
(II) Whether accused nos.1, 2 and 3,
while being members of unlawful
assembly were armed with deadly
weapons ? .. Not proved
(III) Whether accused nos.1 to 11 in .. Partly in the
furtherance of their common object affirmative. It is
of assembly voluntarily caused proved that
grievous hurt and attempted to accused 1, 2 & 3
cause murder of P.W.2 Pandurang? and 6 in
furtherance of their
common intention
voluntarily
caused grievous
hurt to P.W.2
Pandurang by
means of sticks &
some sharp
weapons.
(IV) Whether any interference is .. In the affirmative.
necessary in the order of Accused nos.1, 2,3
acquittal ? & 6 are held guilty
for offence
punishable under
Section 326 read
with 34 of I.P.C.
Cri.Appeal 598/2002
- REASONS -
8. The material evidence in this case is of P.W.2 Pandurang, the
injured witness. Eye witness P.W.12 Asha, P.W.1 Dr. Sameer Desale
and spot panch P.W.3 Deelip.
9. The prosecution examined total thirteen witnesses. Out of
which following witnesses have turned hostile.
P.W.4 - Gajanan, panch to the seizure of clothes of P.W.2 Pandurang
P.W.5 Abdul Majeed, P.W.6 Abdul Rasheed, panchas to the discovery
of weapons by accused nos.1, 2, 3 (turned hostile)
P.W.8, Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11 Laxman,
eye witnesses, turned hostile.
10. P.W.7 Bhausaheb is brother of P.W.2 Pandurang.
11. Since P.W.2 Pandurang is the injured eye witness, his evidence
has to be considered as most material. If his evidence is found
cogent, consistent and reliable, it can be relied upon, but if it is found
to be not so consistent, one may look for corroboration. The evidence
shows as follows :
(I) There was no previous enmity between P.W.2 Pandurang and
the accused persons. There was dispute between accused no.6
Bhaskar and P.W.2's brother P.W.7 Bhausaheb. Accused no.6 Bhaskar
was claiming right of cart way through the field of Bhausaheb, which
P.W.7 Bhausaheb was denying. There is admission of P.W.7
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Bhausaheb that Tahsildar had given permission to accused no.6
Bhaskar to go to his land through his land. He had preferred appeal
before the Collector, but the same was dismissed. It is not clear
whether these events took place before the incident or after the
incident, but one thing is certain that P.W.7 Bhausaheb was opposing
accused no.6 for going to his field through his field. P.W.2 Pandurang
being brother of P.W.7 Bhausaheb, accused no.6 was having some
grudge against him. It is the evidence that P.W.7 Bhausaheb and
P.W.2 Pandurang are separate in residence and property.
(II) It is certain that accused no.6 Bhaskar could have more grudge
against P.W.7 Bhausaheb and, therefore, if he wanted to assault
anybody, P.W.7 Bhausaheb would have been the priority. P.W.7
Bhausaehb stated that on 9.10.2000 at 10.00 a.m., he and his wife
and daughter were working in the field. That time, accused no.6
Bhaskar was holding a wet party in his field. Accused no.6 Bhaskar
and accused no.4 Rajendra came to his field and threatened him with
life and returned to join the party. Then, P.W.7 Bhausaheb told
P.W.10 Bharat Pardhi, boy aged 12 years to report this fact to P.W.2
Pandurang so as to caution him. P.W.7 Bhausaheb further deposed
that he had sent his wife and daughter to give this information to
P.W.2 Pandurang. P.W.2 Pandurang does not state that he received
such information. P.W.7 Bhausaheb stated that he had seen the
accused persons proceeding to the field of Pandurang with sticks and
axes in their hands. The entire evidence of P.W.7 Bhausaheb is not
reliable and is unnatural. In the first place, accused no.6 Bhaskar
would have assaulted P.W.7 Bhausaheb and would not have given a
Cri.Appeal 598/2002
mere threat to him as his main enmity was with P.W.7 Bhausaheb.
Secondly, the said incident took place at 10.00 a.m. whereas the
assault on Pandurang took place at 4.00 pm. If P.W.7 Bhausaheb
would have sent message to P.W.2 Pandurang, he would have
received it quite early and he would not have been in his field.
Besides, P.W.7 Bhausaheb has not reported the matter to the police
nor made any preparation to protect his brother. We, therefore, find
that the entire evidence of P.W.7 Bhausaheb is untrustworthy and
unreliable and it deserves to be discarded.
(III) P.W.12 Asha is wife of P.W.7 Bhausaheb, who is brother of P.W.2
Pandurang. She has deposed as per the evidence of P.W.7
Bhausaheb. She deposed that the accused were holding a wet party in
the field of Bhaskar. That time, her husband was near a well in their
field. She deposed that accused no.6 Bhaskar, accused no.4 Rajendra
came to him and threatened him that he would not be left alive on
that day. She stated that her husband was frightened and disclosed
these threats to her and went home. Her husband had sent P.W.10
Bharat Pardhi to P.W.2 Pandurang to caution him. Then she had gone
to the field of P.W.2 Pandurang and saw accused no.1 Deelip, accused
no.4, Rajendra, accused no.3 Gotu arrived in the field of P.W.2
Pandurang with axe and sticks. They abused P.W.2 Pandurang who
was grazing his bulls. At that time they assaulted him with axe and
sticks on head, abdomen, shin. She stated that Laxman and Bharat
had intervened and rescued the complainant. We find her evidence
not convincing. Her name is not there in F.I.R. though four names of
eye witnesses were given in F.I.R. Her conduct of not reporting the
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threats to P.W.2 Pandurang well in advance is not consistent with her
relationship with P.W.2 Pandurang. Her evidence against the accused
is vague. She did not disclose which accused assaulted first and with
what weapon and who assaulted later. We find it unsafe to rely on her
evidence.
(IV) As per evidence of P.W.2 Pandurang, on the fateful day, he was
grazing his bulls in his field and saw that the accused were enjoying a
party in the field of accused no.6 Bhaskar. He stated that he had
been to the field in noon hours and after sometime, the accused came
to his field with sticks, axes, lathis and iron bar. Accused no.6
Bhaskar accosted him, why his brother was obstructing his right of
way through his field. P.W.2 Pandurang replied him that he was not
concerned as he was having his own field separate from his brother,
still the accused started assaulting him. Accused no.2 Dinesh gave
the axe blows on the leg, head and hand of P.W.2 Pandurang.
Accused no.3 Gajanan gave blows of iron bar on his legs and hands.
Accused no.1 Deelip assaulted him with sticks and rest of the accused
assaulted him with kick and fist blows. He was rescued by Laxman,
Subhash, Ananda, Asha and Rekhabai. P.W.8 Ananda, P.W.9 Subhash,
P.W.10 Bharat and P.W.11 Laxman are eye witnesses. They were
examined. All of them have turned hostile. The names of Asha and
Rekhabai were not disclosed in the F.I.R.
(V) P.W.1 Dr. Sameer Desale supports the evidence of P.W.2
Pandurang. He deposed that while he was working as Medical Officer
at Civil Hospital, Dhule, P.W.2 Pandurang was brought to his hospital
Cri.Appeal 598/2002
at 7.15 p.m. on 9.10.2000. He gave history of assault at 4.30 p.m. at
Shirud by hard and blunt objects. There was also history of
unconsciousness for half an hour. Pandurang was unconscious for
sometime, he must have required sometime to reach Civil Hospital,
Dhule from Shirud and considering the gravity of his injuries, his
priority would have been to receive the medical aid to save his life. In
the light of the facts, the F.I.R. lodged at 9.30 p.m. is quite prompt.
The evidence of P.W.2 Pandurang is well supported by medical
evidence which shows that he had sustained seven injuries. In the
light of these facts, the learned trial Judge should have believed P.W.
2 Pandurang. P.W.1 Dr. Sameer Desale found following injuries on his
person :
(1) CLW on parietal region right side of size 1.6 cm x 1 cm
(2) CLW on left side parietal region size 5 cm 1 cm
(3) Pain/swelling/tenderness on 1/3 left forearm near wrist joint
(4) Bruise on abdomen right iliac region
(5) Lacerated wound right lower leg 3 cm x 1 cm, 2 cm x 1 cm
(6) Lacerated left lower leg 2 cm x 1 cm
(7) pain/swelling/tenderness present on left thigh
He deposed that all the injuries were caused within 24 hours
and by hard and blunt object. Injury nos.3 and 8 were grievous in
nature. He had given intimation to the police and suspected fracture
on wrist. He had obtained X-rays and referred the patient for
orthopedic treatment to the surgeon for head surgery. His medical
certificate is at Exh.46 and provisional certificate at Exh.47.
Cri.Appeal 598/2002
The injury certificate shows two contused lacerated wounds on
parietal region, two lacerated wounds on legs. One swelling on left
thigh, two swellings on right wrist and left forearm and one bruise on
abdomen. He had referred the patient for X-rays and after watching
the X-rays he gave certificate that there was fracture of tibia fibula
and fracture of right middle third bil-colles. The certificate of doctor
that the injuries were sufficient in ordinary course of nature to cause
death cannot be accepted in the light of nature of injuries. Though
there are two injuries on parietal region, no depth has been shown to
those contused lacerated wounds. The two fractures on the wrist or
upper forearm cannot be dangerous to life. Therefore, we find that
the injuries sustained by P.W.2 - Pandurang were grievous, but were
not dangerous to life.
(VI) There is corroborative evidence of spot panch P.W.3 Deelip. He
deposed that on the next day of the F.I.R., the police had drawn spot
panchnama in the field of P.W.2 Pandurang which was attended by
him. He saw torn pieces of baniyan, stick, traces of blood, white
handkerchief, blood stained leaves of jawar crop. He is adjacent field
owner. He has proved panchnama Exh.51 and the seized muddemal
articles, Articles 1 to 7.
(VII) P.W.13 A.P.I. Patil has deposed about seizure of various articles
and about discovery of weapons by accused nos.1 to 3. The panch to
the discovery, P.W.5 Shaikh Majeed and P.W.6 Shaikh Rasheed have
turned hostile. The evidence of P.W.13 A.P.I. Patil on the point of
discoveries is not specific, as required under Section 27 of the
Cri.Appeal 598/2002
Evidence Act. He had forwarded the seized articles including the
weapons to Chemical Analyst and the chemical analysis reports
received by him are at Exhs.66 to 69. Those reports do not disclose
any blood stains on the weapons. We, therefore, hold that the
discoveries of weapons at the hands of accused are not proved.
12. It is true that in preset case, the independent witnesses P.W.8
Ananda, P.W.9 Subhash, P.W.10 Bharat and P.W.11 Laxman have
turned hostile. Discoveries of weapons by the accused are not
proved, however, we find that P.W.2 Pandurang is injured witness.
He has no previous enmity of whatsoever nature against the accused.
He has deposed consistently with his F.I.R. Exh.49. He was injured at
about 4.30 p.m. and was brought to the Civil Hospital, Dhule at 7.15
p.m. His F.I.R. was recorded in the Civil Hospital at 9.30 p.m.
13. It is now-a-days found that even when somebody is assaulted or
some offence is committed against somebody, he is reluctant to go to
police station to lodge the F.I.R. Therefore, when somebody lodges
the F.I.R. and goes before the Court and deposes on oath and his
evidence is found to be consistent with the promptly lodged F.I.R. by
him and is well supported by medical evidence, the Judge should
proceed with assumption that he is telling the truth unless there are
suspicious circumstances to create a reasonable doubt about his
truthfulness of the statement.
14. It is common knowledge that the people sometimes make
exaggerations with regard to nature of injuries, number of injuries or
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the number of offenders. If the substratum of the evidence is
substantially different from the prosecution case, or when there is
deliberate attempt to falsely implicate some person or the
exaggeration of nature of injuries is out of proportion, the Judge may
be justified in disbelieving such witness or believing only partly
subject to corroboration from independent witnesses. But, in the
present case, we find that the skeleton of the evidence given by
P.W.2 Pandurang is consistent with the prosecution case, as disclosed
in the F.I.R. promptly lodged by P.W.2 Pandurang and is well
supported by medical evidence. In the circumstances,
notwithstanding the fact that P.W.8 to P.W.11, eye witnesses have
turned hostile, we find no reason to disbelieve P.W.2 Pandurang. We
find that learned trial Judge has given undue importance to the
untrustworthy nature of evidence of P.W.7 Bhausaheb and P.W.12
Asha and we have already discarded their evidence, however, it will
not have adverse effect on the evidence of P.W.2 Pandurang, which is
otherwise trustworthy and reliable.
15. We find that P.W.2 Pandurang has made some exaggerations. If
eleven accused would have assaulted him with axe, iron bar and
sticks, there would have been large number of injuries on his person,
but it is certain that some accused have assaulted him with some
weapons, which caused eight injuries to him. He has given specific
evidence against accused no.3 Gotu, accused no.2 Dinesh and
accused no.1 Deelip. There is also specific evidence against accused
no.6 Bhaskar at whose instigation that took place. He had first came
to him and accosted him with regard to right of way and about
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obstruction by him and his brother. As far as evidence of rest of the
accused is concerned, it is not specific and looking to the evidence of
all witnesses, other accused deserve to get benefit of doubt, but we
find that the evidence against accused no.1,2, 3 and 6 was sufficient
to hold them guilty for causing injuries to P.W.2 Pandurang.
16. However, evidence of P.W.2 Pandurang supported by medical
evidence in the form of injury certificate Exh.46 and promptly lodged
F.I.R. Exh.49 is reliable and trustworthy. The learned trial Judge has
not given much importance to find out whether the evidence of P.W.2
Pandurang is reliable, cogent and consistent or not.
17. In State of U.P. Vs. Hari Mohan, AIR 2001 SC 142, it is
observed :
"7. While appreciating the ocular testimony of witnesses
and the circumstantial evidence in a criminal case, the
criminal courts are expected to keep in mind the
observations of this Court in State of Punjab v. Jagbir Singh,
Baljit Singh & Karam Singh [1974 (3) SCC 277] wherein it
was held:
" A criminal trial is not like a fairy tale wherein one is free
to give fight to ones imagination and phantasy. It concerns
itself with the question as to whether the accused
arraigned at the trial is guilty of the crime with which he is
charged. Crime is an event in real life and is the product of
interplay of different human emotions. In arriving at the
conclusion about the guilt of the accused charged with the
commission of a crime, the court has to judge the evidence
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by the yardstick of probabilities, its intrinsic worth and the
animus of witnesses. Every case in the final analysis would
have to depend upon its own facts. Although the benefit of
every reasonable doubt should be given to the accused,
the courts should not at the same time reject evidence
which is ex facie trustworthy on grounds which are fanciful
or in the nature of conjectures."
8. This Court again in State of Himachal Pradesh v. Lekh
Raj & Sons [JT 1999 (9) SC 43] reiterated the position of
law and while reminding the criminal courts of their
obligations held:
"The criminal trial cannot be equated with a mock
scene from a stunt film. The legal trial is conducted to
ascertain the guilt or innocence of the accused arraigned.
In arriving at a conclusion about the truth, the Courts are
required to adopt rational approach and judge the evidence
by its intrinsic worth and the animus of the witnesses. The
hyper-technicalities or figment of imagination should not
be allowed to divest the court of its responsibility of sifting
and weighing the evidence to arrive at the conclusion
regarding the existence or otherwise of a particular
circumstances keeping in view the peculiar facts of each
case, the social position of the victim and the accused, the
larger interests of the society particularly the law and order
problem and degrading values of life inherent in the
prevalent system. The realities of life have to be kept in
mind while appreciating the evidence for arriving at the
truth. The courts are not obliged to make efforts either to
give latitude to the prosecution or loosely construe the law
in favour of the accused. The traditional dogmatic hyper-
technical approach has to be replaced by rational, realistic
and genuine approach for administering justice in a
criminal trial. Criminal jurisprudence cannot be considered
to be a Utopian thought but have to be considered as part
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and parcel of the human civilization and the realities of life.
The courts cannot ignore the erosion in values of life which
are a common feature of the present system. Such
erosions cannot be given a bonus in favour of those who
are guilty of polluting society and the mankind."
9. Before appreciating the circumstantial evidence in
the case, we are at pain to place on record our displeasure
regarding the conduct of the investigation in the case. The
investigating officer appears to have left no stone unturned
to help the accused-respondents. It appears that the
valuable evidence, though available, was not collected
apparently for ulterior purposes. The conduct of the
investigating officer SI D.P. Tiwari (PW7) was even noticed
by the trial court. On 30th October, 1978 while recording
his statement, the trial court observed that "it appears that
the IO was negligent and an irresponsible investigating
officer". It was noticed that "the witness giving aforesaid
statement and it appears that he wants to damage the
prosecution case". It is not disputed that during
investigation it had come in evidence that respondent No.1
was possessed of a licensed gun which was stated to have
been used by him on 15.3.1977, the alleged day of
occurrence, yet no effort was made by the IO to seize the
gun or get it examined by an expert to ascertain whether
any shot was fired from its barrel. He also failed to have
taken into custody the letter written by the deceased for a
sufficiently long period though its mention was made by the
PW1 in the FIR itself. However, the defective investigation
cannot be made a basis for acquitting the accused if
despite such defects and failures of the investigation, a
case is made out against all the accused or anyone of
them. It is unfortunate that no action can be taken against
the IO at this stage who, in all probabilities, must have
retired by now.
Cri.Appeal 598/2002
18. The view taken by the learned trial Judge is not reasonable and
probable view. We, therefore, rely on the evidence of P.W.2
Pandurang to hold accused nos. 1 to 3 and accused no.6 Bhaskar
guilty for committing assault on P.W.2 Pandurang by means of iron
bars and some other weapons and thereby causing grievous hurts.
We, therefore, hold accused no.1 Deelip Ratan Gaikwad, accused no.2
Dinesh Nimba Gaikwad, accused no.3 Gotu Uttam Gaikwad and
accused no.6 Bhaskar Pawar guilty for offence punishable under
Section 326 read with Sec.34 of Indian Penal Code.
19. At this point, it is necessary to hear the accused on the point of
sentence. Hence, we pass the following order:
- ORDER -
(I) The appeal is partly allowed.
(II) The appeal against accused nos.4, 5, 7, 8, 9, 10 and 11 is
dismissed. Acquittal of accused nos.1,2,3 and 6 is set aside.
(III) Accused no.1 Deelip Ratan Gaikwad, accused no.2 Dinesh
Nimba Gaikwad, accused no.3 Gotu Uttam Gaikwad and accused no.6
Bhaskar Pawar are held guilty for offence punishable under Section
326 read with Sec.34 of Indian Penal Code. Their bail bonds are
forfeited.
Cri.Appeal 598/2002
(IV) The concerned Police Station Officer is directed to produce
accused no.1 Deelip Ratan Gaikwad, accused no.2 Dinesh Nimba
Gaikwad, accused no.3 Gotu Uttam Gaikwad and accused no.6
Bhaskar Pawar before us for hearing on the point of sentence. Learned
defence Counsel is also directed to ask them to appear before us on
18th December 2017.
( A.M. DHAVALE, J.) ( T.V. NALAWADE, J.)
vvr
