Janardhan Jagoba Waghade And 3 ... vs State Of Maharashtra
2017 Latest Caselaw 9747 Bom

 apeal310.02.J.odt                         1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.310 OF 2002

 1]       Janardhan Jagoba Waghade,
          Aged 47 years.

 2]       Baba Jagoba Waghade,
          Aged 40 years.

 3]       Chandrabhan Dhanba Sahare,
          Aged 41 years.

 4]       Kisan Dhanba Sahare,
          Aged 41 years.

          All resident of Pardi [Heti] 
          Tahsil Karanja [Gh],
          District Wardha.
          [Presently in Central Jail]                        ....... APPELLANTS


                                   ...V E R S U S...


          State of Maharashtra,
          through Police Station Officer
          Karanja [Gh], Tahsil Karanja,
          District Wardha.                                   ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Abhay Sambre, Advocate for Appellants.
          Shri N.B. Jawade, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

 CORAM:           ROHIT B. DEO, J. 

DATE OF RESERVING THE JUDGMENT : 21.08.2017 DATE OF PRONOUNCING THE JUDGMENT : 19.12.2017

The appellants seek to assail the judgment and order

dated 09.05.2002 passed by the 2 nd Additional Sessions Judge,

Wardha in Sessions Trial 93/1996, by and under which, the

appellants are convicted for offence punishable under section 304

Part II read with section 34 of the Indian Penal Code and are

sentenced to suffer rigorous imprisonment for ten years and to

payment of fine of Rs.500/- and are further convicted for offence

punishable under section 326 read with section 34 of the IPC and

are sentenced to suffer rigorous imprisonment for seven years and

to payment of fine of Rs.250/- and are further convicted for

offence punishable under section 324 read with section 34 of IPC

and are sentenced to suffer rigorous imprisonment for two years

and to payment of fine of Rs.250/-. The appellants, who faced trial

along with one Ambadas Gadekar are acquitted of offence

punishable under sections 147, 148 and 302 read with section 149

of IPC while accused 5 Ambadas Gadekar is acquitted of all the

offences.

2] Heard Shri Abhay Sambre, the learned counsel for the

appellants and Shri N.B. Jawade, the learned Additional Public

Prosecutor for the respondent/State.

3] The gist of the prosecution case, as is unfolded during

the trial, is thus :-

P.W.1 Anil Bhimraoji Chaudhari and accused 1

Janardhan Jagoba Waghade were engaged in illicit liquor sale.

Since P.W.1 Anil parted company with accused Janardhan,

relations soured. On 12.07.1995 between 04:00 to 05:00 p.m.

P.W.1 Anil was returning to his residence from the agricultural

field and on the way noticed Ganpat Tiple, Nago Bhoi and others

near the forest octroi post and approached them. In the

interregnum, accused arrived on the scene, abused P.W.1 Anil and

accused Janardhan inflicted stick blows on P.W.1, who ran

towards his residence. Accused then assaulted Anil with axe and

gupti, hearing the hue and cry Anil's mother Laxmi Bhimrao

Chaudhari (P.W.5) and grand-father Sahadeo arrived at the scene.

Accused Baba assaulted P.W.1 Anil on the head with an axe.

Accused also assaulted P.W.5 Laxmi and Sahadeo. Injured Anil,

Sahadeo and Laxmi were taken to the Primary Health Centre at

Karanja by some villagers in an auto-rickshaw.

4] Police Sub-Inspector Bhaskar who was then attached

to Police Station Karanja as Head Constable having received

information from the Primary Health Centre went to the Primary

Health Centre and recorded the dying declaration of P.W.1 Anil,

which is treated as the First Information Report is marked Exh.30

on the record of the trial court. On the basis of Exh.30, offence

punishable under section 326 read with section 34 of the IPC was

registered at 12-40 hours on 12.07.1995.

5] The Medical Officer attached to the Rural Hospital,

Karanja Dr. Aparna examined the injured Anil Chaudhari and

noticed the following injures :-

1) Deep lacerated wound on forehead extending to the middle of the nose having size 5" long x deep with bleeding present edges sharp.

2) Deep cutting wound on left ear pinna.

3) Lacerated wound on the chin having size 2 cm. x 1 cm deep.

4) Blackness and swelling of right eye.

Dr. Aparna accordingly issued medical certificate

which is marked Exh.99 on the record of the trial court.

Dr. Aparna examined Laxmi Bhimrao Chaudhari

(P.W.5) and noticed the following injures on her person :-

(1) Lacerated wound on the scalp 5 x 1 Cm. deep.

(2) Swelling left forearm with pain.

Dr. Aparna accordingly issued medical certificate

which is marked Exh.100 on the record of the trial court.

Dr. Aparna also examined injured Sahadeo Damduji

Raut then aged 70 years and noticed the following injuries :-

(1) Lacerated wound on scalp 3 cm. x 1 cm deep there was complaint about body ache.

She accordingly issued medical certificate which is

marked Exh.101 on the record of the trial court.

6] The spot panchnama was prepared on 13.07.1995

(Exh.33) sample of earth mixed with blood was seized from the

spot vide Exh.34, statement of injured Sahadeo was recorded

on 13.07.1995 and the accused arrested on 13.07.1995. The blood

stained clothes produced by accused Janardhan and accused Baba

were seized vide seizure panchnama Exh.59 and Exh.61

respectively and statements of witnesses were recorded.

7] Injured Sahdeo expired at 07:45 p.m. on 14.07.1995

while undergoing treatment in the Hospital at Karanja, inquest

panchnama of the dead body was prepared on 15.07.1995, the

autopsy was conducted by Dr. Gopal who noticed the following

injures on the body on external examination :-

(1) injury over occipital region of scalp having size 3 cm. x 1 cm. Injury was sutured.

(2) abrasional injury near left knee, size 1 cm. x 1 cm.

(3) abrasional injury over left arm, size about 3 cm. superficial.

Dr. Gopal issued postmortem examination report

(Exh.48) in which the cause of death is opined thus :-

"In my opinion the cause of death was traumatic contusion injury over head (scalp) chronic chest disease old age with cardio respiratory".

8] The Investigating Officer seized two towels with blood

stains which were produced by prosecution witness Kusum vide

Exh.37 on 15.07.1995. Accused Chandrabhan produced one

bamboo stick which was seized vide Exh.38, accused Kisan

produced one ubhari which was seized vide Exh.39, clothes of

accused Baba was seized vide seizure memo Exh.61, pursuant to

memorandum of admission under section 27 of the Indian

Evidence Act, ubhari and axe were discovered at the instance of

accused Janardhan and Baba.

9] The culmination of investigation led to submission of

charge-sheet in the Court of Judicial Magistrate, First Class,

Karanja who committed the case to the Sessions Court.

The learned Sessions Judge framed charge under sections 147,

148, 302 read with section 149 and 326 read with section 149 of

the IPC. The accused abjured guilt and claimed to be tried in

accordance with law. The defence is of total denial and false

implication.

10] The prosecution has examined as many as 15

witnesses, to wit :-

Injured Anil (PW-1), Panch Ramchandra (PW-2), witness Kusum (PW-3), Panch Liladhar (PW-4), injured Laxmi (PW-5), P.C. Vijay (PW-6), H.C. Arjun (PW-7), Dr. Gopal (PW-8), Revenue Inspector Suresh (PW-9), panch Hansaraj (PW-10), witness Amarsingh (PW-11), witness Narayan (PW-12), I.O. Ramesh (PW-

13), I.O. PSI Bhaskar (PW-14) and Dr. Aparna (PW-

15).

11] In view of the finding recorded by the learned

Sessions Judge, that the deceased committed offence punishable

under section 304 part-II read with section 34 of IPC by assaulting

Sahadeo Damduji Raut with axe and causing the death of

Sahadeo, I deem it appropriate to analyze the evidence on record

to satisfy the conscious of the court that the death of Sahadeo is

attributable to the assault.

Concededly, Sahadeo expired at 07:45 p.m.

on 14.07.1995. P.W.1 Anil was suggested in the cross-examination

that Sahadeo was discharged from the hospital and was in the

village on the next day of the incident. The response of P.W.1 is

thus :-

I do not know whether on the next day of the incident my grand father came back to our village from Nagpur. I have not enquired whether my grand father had been to our village from the hospital on the next day, when I was discharged from the hospital.

P.W.2 Ramchandra Lahanji Tiple, who did not

support the prosecution, stated thus in the cross examination on

behalf of the accused :-

On the date of incident it was Bazar day. I had gone to the Bazar on that day at about 4 to 5 p.m. and returned back at 7 p.m. It is true that on the 3 rd day of Akhadi I had seen Sahadeo in our village, in the morning. I do not know whether on the 3 rd day of incident had been to his field also. I came to know from the villagers on the 3rd day of the incident again Sahadeo has taken to the hospital at Karanja (Gh) in the evening.

Kusum Nehare, the grand-daughter of Sahadeo who is

examined as P.W.3 admits thus :-

It is true that after incident I was staying in our village. It is true that on the 3 rd day of the incident my grand father Sahadeo came back to our village from the hospital in the morning, and staying in the village for the whole day. It is true that on the 3 rd day of the incident when my grand father came back to our house he has taken meal etc. It is not true that on the 3 rd day

of the incident my grand father also visited to our field. However, on the 3rd day of the incident my grand father visited to the other villagers. It is true that on the 3 rd day of the incident in the evening time, my grand father was not feeling well, and therefore again he was taken to the hospital at Karanja (G).

Laxmi, the injured grand-daughter of Sahadeo who is

examined as P.W.5 states thus in the cross-examination :-

I was discharged from the hospital after giving me medical treatment in the hospital. It is true that I was discharged from the hospital on the very day. It is true that my father Sahadeo came back to our village on the 3rd day of the incident, from the hospital. It is true that when my father came back from the hospital he has taken meal and say in the village for the whole day. It is not true that on the 3 rd day of the incident my father had gone towards the field. It is true that on the 3rd day of the incident in the evening time my father was not feeling well and therefore again he was taken to the hospital at Karanja (Gh). It is true that when my father was again taken to the hospital on the 3 rd day of the incident he died in the hospital.

12] P.W.8 Dr. Gopal Bhagat who conducted the autopsy

admits that the injury suffered by Sahadeo was not sufficient to

cause death in ordinary course of nature. It would be apposite to

reproduce the cross-examination of Dr. Gopal Bhagat which reads

thus :-

It is not true that at the time of preparing P.M. report the earlier injury certificate of deceased Sahadeo was shown to me. It is true that the injury sustained by Sahadeo were simple in nature and therefore he was not refer to the hospital at Nagpur by Duty Doctor.

Patient Sahadeo was admitted in P.H.C. Karanja (G) on 12-7-95 to till his death. It is true that injury caused by Sahadeo was not sufficient to cause the death in ordinary course of nature. It is possible that Sahadeo died due to old age, chronic disease, chest disease and respiratory arrest. It is true that injury shown in P.M. report Exh. 50 is due to possible due to fall on hard object like stone or iron pipe or part of the cart.

13] A holistic appreciation of the evidence on record, and

in particular the evidence of Dr. Gopal Bhagat who conducted the

autopsy on the body of Sahadeo, renders possible an alternate

hypothesis that the death of Sahadeo may not be due to the injury

suffered in the assault. It is trite law, that an alternate hypothesis

is reasonably and possibly discernible from the evidence on record,

the benefit of the doubt must necessarily go to the accused. I am

inclined to give the benefit of the doubt to the accused and to hold

that the prosecution has not established that the death of Sahadeo

is due to injuries suffered in the incident.

14] The injured Anil (P.W.1), has deposed that at 04:00

p.m. on 12.07.1995 accused Janardhan pelted stone on the left ear

of the witness causing the witness Anil to fall down on the ground.

P.W.1 approached the Police Patil of the village who advised

P.W.1 to lodge a report at Karanja Police Station. P.W.1 Anil,

mother, grand-father Sahadeo accompanied by some persons were

proceeding towards the Police Station in an auto-rickshaw at

06:00 p.m. or thereabout, accused arrived in front of the house

and assaulted P.W.1 Anil, mother Laxmi and grand-father

Sahadeo, is the deposition. It is stated that accused Baba was

armed with an axe, Janardhan was armed with ubhari and

accused Kisan and Chandrabhan were armed with stick. Accused

Baba assaulted Sahadeo with axe and all the accused assaulted

Sahadeo with axe and ubhari, is the deposition. In the cross-

examination, it is brought on record that the statement that P.W.1

Anil, P.W.5 Laxmi and Sahadeo were proceeding to Karanja in

auto-rickshaw, is an omission. Accused came in front of the house

and assaulted P.W.1, P.W.5 and Sahadeo with axe and stick is

again an omission. The statement that the accused Kisan and

accused Chandrabhan assaulted P.W.1, P.W.5 and Sahadeo with

stick, is an omission. The statement that the accused Janardhan

pelted stone on the person of Sahadeo when Sahadeo was sitting

in the cart, is again an omission. The statement that accused Baba

assaulted Sahadeo with axe and that accused 1 to 4 assaulted

Sahadeo is again an omission. The omissions are duly proved

through P.W.14 Bhaskar Awathale.

P.W.1 Anil admits in the cross-examination that at the

time of the incident he was under the influence of liquor.

However, he denies the suggestion that he was brandishing a stick

and suffered accidental injury by falling in the pit dug in the court-

yard of the house. It is further elicited from P.W.1 that he was

unconscious when police came to the Karanja hospital and

regained consciousness after 10 to 12 hours when he was admitted

in the hospital at Nagpur. The suggestion that P.W.1 fell

unconscious and therefore, was not aware as to who assaulted

Sahadeo, is denied.

15] P.W.3 Kusum has deposed that accused Janardhan

pelted stone on the person of P.W.1 Anil who suffered bleeding

injury. She then states that Janardhan pelted a stone on Sahadeo

who was sitting on the cart. She states that when P.W.5 Laxmi

came out from the residence, she was assaulted on the head by

Janardhan who picked up a stick from the fencing and assaulted

Laxmi on the head with the stick. She then states that P.W.1 Anil

was assaulted when he tried to intervene. P.W.3 Kusum has

deposed that when P.W.1 and P.W.5 came outside the house and

boarded the auto-rickshaw, accused pulled P.W.1 from the auto

and assaulted him. Accused Kisan and accused Chandrabhan

assaulted Sahadeo with the rod of the axe on leg. Accused Baba

inflicted an axe blow on the head of Sahadeo and accused

Janardhan assaulted Sahadeo with ubhari, is the deposition.

Significant omissions are brought out in the

cross-examination, which are duly proved. Illustratively, the

statement that Janardhan pelted stone on P.W.1 Anil is an

omission. The statement that Janardhan picked up stick from the

fencing and assaulted P.W.5 Laxmi is again an omission. The

statement that accused Janardhan assaulted P.W.1 when P.W.1

attempted to intervene, is an omission. The statement that accused

pulled Anil out from the auto-rickshaw and assaulted him, the

statement that accused Kisan and Chandrabhan assaulted Sahadeo

on leg with the rod of axe, the statement that accused assaulted

Sahadeo, Laxmi and P.W.1 Anil are all omissions.

P.W.5 Laxmi Chaudhari states that accused Janardhan

pelted stone on the person of Anil causing injury, that Anil

approached the Police Patil, accused Janardhan and accused Baba

assaulted Anil near the octroi post, accused Janardhan was armed

with ubhari and accused Baba was armed with an axe, accused

Janardhan pelted stone on the person of Sahadeo who was sitting

on the cart and assaulted the witness Laxmi, is the deposition. It is

further deposed that accused Janardhan assaulted Sahadeo with

axe rod and accused Baba assaulted Sahadeo with axe. Accused

Kisan and accused Chandrabhan assaulted Sahadeo with stick and

ubhari, is the deposition. In the cross-examination it is extracted

from P.W.5 Laxmi that P.W.1 Anil fell unconscious near the house

of Tukaram Tiple and regained consciousness in the Nagpur

hospital. The attempt was to demonstrate that P.W.1 Anil did not

witness the assault on P.W.5 or deceased Sahadeo.

16] The other family member Narayan Sahadeo Raut who

is the son of the deceased Sahadeo (P.W.12) was not in the village

on the date of the incident and states that Sahadeo disclosed that

four persons assaulted him with axe and ubhari. P.W.12 further

states that the names of the accused were disclosed by Sahadeo.

P.W. 1 Anil, whose statement was recorded as dying

declaration, and which is treated First Information Report, speaks

of two distinct assaults. The first assault is by accused Janardhan

who pelted stone on the left ear of the injured Anil. The second

assault took place when, as advised by the Police Patil, at 6.00

p.m. or thereabout, the injured, Anil, his mother Laxmi, deceased

Sahdeo and others boarded the auto-rickshaw to lodge the report

at the Karanja Police Station. However, the evidence of P.W. 1

Anil as regards the second assault is extremely doubtful. The

mother of Anil Laxmi (P.W. 5) who is also injured does not speak

of the presence of Anil when she and deceased Sahdeo were

assaulted. In fact, P.W. 5 Laxmi deposes thus in the cross-

examination:-

"It is true that Anil felt unconscious near the house of Tukaram Tiple itself. It is true that Anil regained his conscious in the hospital at Nagpur."

P.W. 1 Anil admits that at the time of incident he was under

the influence of liquor. This is treated to be a erroneous admission

by the learned Sessions Judge. It is difficult to agree with the

observation of the learned Session Judge. Several suggestions

were given to P.W. 1 Anil to the effect that he was under the

influence of liquor and the suggestions were given in different

context. The fact that the doctor who examined P.W .1 Anil did

not mention in the certificate that P.W.1 was under the influence

of liquor, is not sufficient to hold that the admission is erroneous.

The version of P.W. 1 Anil that all the injured boarded an auto-

rickshaw and the accused assaulted them at that time, is a proved

omission. The evidence of Anil that he was conscious and was a

witness to the assault appears to be extremely suspect since

according to his mother P.W. 5 Laxmi he fell unconscious near the

house of Tukaram Tiple, which would suggest that Anil fell

unconscious due to the first assault by stone. I have already

noted, that Laxmi does not speak of the presence of P.W. 1 Anil

when she and Sahdeo were assaulted, which assault concededly is

subsequent to the stone pelting by accused 1 - Janardhan which

injured P.W. 1 Anil.

17] Kusum Nehare (P.W. 3) narrates a version which is

substantially at variance with that of her mother (P.W. 5). She

speaks of the first assault on Anil and the injury suffered due to

stone pelting but then she does not speak of Anil losing

consciousness. P.W. 3 Kusum then deposes that Sahdeo was

sitting on the cart, accused - 1 Janardhan pelted stone at Sahdeo,

P.W. 5 Laxmi came out of the house and was assaulted by accused

Janardhan who picked up a stick from fencing and inflicted a blow

on the head of P.W. 5 Laxmi. P.W. 3 then states that P.W. 1 Anil

attempted to intervene and was assaulted by the accused. This

version of P.W. 3 Kusum is neither the version of P.W. 1 Anil nor

the version of P.W. 5 Laxmi. P.W. 3 Kusum then states that P.W. 1

and Sahdeo boarded an auto-rickshaw, P.W. 1 was pulled out of

auto-rickshaw and assaulted. Deceased Sahdeo was also assaulted

accused Kisan and accused Chandrabhan with the rod of the axe

on leg. P.W. 3 then states that the accused assaulted P.W. 1 Anil

and P.W. 5 Laxmi with sticks and ubhari. She has also deposed

that accused Baba inflicted an axe blow on the head of Sahdeo.

Evidence of P.W. 3 Kusum must be tested with some caution

since the defence has brought on record several omissions which

are duly proved. It is true that certain omissions are not

significant in as much as the facts spoken of are amply

corroborated by the evidence of P.W. 1 Anil and P.W. 5 Laxmibai.

Illustratively, the statement that accused 1 Janardhan pelted stone

at P.W. 1 Anil is an omission, which is not fatal since the other

witnesses have corroborated the version that accused 1 assaulted

Anil with stone. However, the statement that accused 1 -

Janardhan picked up stick of the fencing and assaulted P.W. 5 on

the head is an omission which is near fatal since this is not the

version of P.W. 5 Laxmi. The statement that P.W. 1 Anil

intervened and was assaulted is again an omission which is

significant. The version of P.W. 3 Kusum as to the assault

launched when the injured Anil, Laxmi and Sahdeo were in the

auto-rickshaw, is an omission.

18] P.W. 5 Laxmi has attributed accused 1 the major role

in the incident. She states that accused Janardhan and accused

Baba assaulted Anil near the octroi post. However, according to

the Anil it was accused Janardhan who pelted a stone. P.W. 1

then states that accused Janardhan pelted stone on Sahdeo,

assaulted, her with ubhari and assaulted Sahdeo with axe rod.

P.W. 1 states that accused Baba assaulted Sahdeo with axe and

accused Kisan and Chandrabhan assaulted Sahdeo with stick.

19] I have already observed that P.W. 1 Anil is not likely

to have witnessed the incident which occurred subsequent to the

injuries suffered due to stone pelted by accused Janardhan. The

evidence of P.W. 3 and P.W. 5 on how the assault took place and

the role played by the individual accused is inconsistent. It is

obvious that there is some attempt to exaggerate and over

implicate. But then, the Court must separate the chaff from the

grain. The learned Sessions Judge has held the discovery of the

weapons proved relying on the evidence of Police Sub Inspector -

Ramesh (P.W. 13), although the evidence of the only panch

examined Hansaraj (P.W. 10) is not accepted since Hansraj is held

to be a stock witness. Concededly, the other panch to the

discovery and seizure is not examined. I am not persuaded to rely

on the evidence on discovery in the facts of the case. The failure

of the prosecution to examine the other panch is inexplicable.

That apart, the report of Chemical Analyzer Exh. 81 reveals that

no blood was detected either on the axe or wooden stick.

20] Exh. 88 on the record of the trial Court is a statement

of the deceased Sahdeo which was recorded under section 161 of

the Code of Criminal Procedure and exhibited as a dying

declaration in view of the death of Sahadeo. In so far as assault

on Sahdeo and Laxmi is concerned, it is only accused Janardhan

and accused Baba who are named by Sahdeo in Exh. 88. Having

discarded the evidence on discovery, and having closely

scrutinized the evidence of the injured P.W. 1, P.W. 5 and P.W. 3

who claims to be an eyewitness, the prosecution has not proved

beyond reasonable doubt that accused Chandrabhan and accused

Kisan (appellant 3 and appellant 4) were participants in the

assault.

21] In so far as accused 1 Janardhan and accused 2 Baba

are concerned, the prosecution evidence, separating the chaff from

the grain, is cogent enough to establish their role in the assault

although it is again difficult to ascertain as to which of the two

delivered which blow. However, it is not established that the

injuries suffered by P.W.1, P.W. 5 or deceased Sahadeo were

grievous injuries. In so far as deceased Sahdeo is concerned, it is

admitted by the doctor that the injuries were simple injuries and

Sahdeo may have died due to causes not directly attributed to the

assault. The medical evidence would show that the injuries

suffered by P.W. 1 Anil and P.W. 5 Laxmi are not grievous and the

only offence which is proved against accused Janardhan and

accused Baba is under section 324 of IPC.

22] In the light of the discussion supra, I would partly

allow the appeal by holding that appellant - accused 3

Chandrabhan and appellant - accused 4 Kisan are entitled to

acquittal and appellant - accused 1 and appellant - accused 2 -

Janardhan and Baba, respectively, are liable to be convicted under

section 324 of IPC instead under section 304 part II, 326 read with

section 34 of IPC.

 23]      The appeal is partly allowed.

 24]      The judgment and order impugned is set aside as regards

appellant - 3 and appellant 4 - Chandrabhan and Kisan

respectively, who are acquitted of offence punishable under

section 304 part II, 326, 324 read with section 34 of IPC.

25] Appellant 1 Janardhan and appellant 2 Baba are acquitted

of offence punishable under section 304 part II and 326 read with

section 34 of IPC, and are instead convicted for offence punishable

under section 324 read with section 34 of IPC.

26] The accused have already undergone more than six months

in detention as pretrial and post conviction prisoners. The

incident occurred 22 years ago. I deem it appropriate to sentence

the accused 1 and 2 Janardhan and Baba respectively, to

imprisonment already undergone.

   27]     The appeal is disposed of in above term. 



                                                           JUDGE




NSN/RS Belkhede