Ramrao Sambharao Mane And Others vs The State Of Maharashtra
2017 Latest Caselaw 9754 Bom

                                                       Cri. Appeal No.426/2002
                                      (( 1 ))


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


                        CRIMINAL APPEAL NO.426 OF 2002


 1.       Ramrao Sambharao Mane
          Aged 40 years (Accused No.1)

 2.       Ramchandra Tukaram Mane,
          Age 65 years (Accused No.5)

 3.       Ganesh Sambharao Mane,
          Age 49 years (Accused no.7)

 4.       Kailash Jayantrao Mane,
          Age 49 years, (Accused No.12)

          (Respondent No.4 dead, appeal abated)

 5.       Bhagwan Ganpati Mane,
          Age 45 years (Accused No.22)

 6.       Pralhad Sambhaji Mane,
          Age 32 years (Accused No.29)

 7.       Dagdu Narba Jadhav,
          Age 49 years (Accused No.31)

          All Resident of Waipana (Kd.),
          Taluka Hadgaon, District Nanded       ...      APPELLANTS


          VERSUS


 The State of Maharashtra
 through Police Station, Tamsa
 Taluka Hadgaon, District Nanded
 through Public Prosecutor,
 High Court, Aurangabad                         ...      RESPONDENT

                                  .....
 Mrs. A.N. Ansari, Advocate for appellants
 Mrs. Y.G. Gujarathi, A.P.P. for respondent
                                  .....



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                                                           Cri. Appeal No.426/2002
                                        (( 2 ))



                                 CORAM:       SUNIL K. KOTWAL, J.

                  Date of reserving judgment : 14th December, 2017
                  Date of pronouncing judgment : 19th December, 2017


 JUDGMENT:

1. This appeal is directed against the judgment and

order of conviction dated 23.7.2002, passed by 2nd Additional

Sessions Judge, Nanded in Sessions Case No.116/1997,

convicting the original accused No.1, 5, 31, 22, 12, 7 and 29 for

the offences punishable under Sections 143, 147, 148, 326 read

with Section 149 of the Indian Penal Code. The appellants are

original above referred convicted accused. The respondent is the

State of Maharashtra.

2. The facts leading to institution of this Criminal Appeal

are that, including the convicted accused, total 36 persons were

prosecuted for the offences punishable under Sections 147, 148,

307 read with Section 149 of the Indian Penal Code and under

Section 135 of the Bombay Police Act. Prosecution case in brief

is that, on 23.5.1996 at about 8.00 to 8.30 p.m., when informant

Shri Panjabrao Ganpat Mane (P.W.2) was sitting in front of his

house at Mouze Waipana (Khurd), Taluka Hadgaon, that time,

including the convicted accused, total 36 persons came to that

Cri. Appeal No.426/2002 (( 3 ))

house and they assaulted the informant by sticks, axe and

stones. The informant sustained grievous and simple hurt. On

24.5.1996, the informant lodged F.I.R. (Exh.103) to Police

Station, Tamsa. Crime No.33/1996 was registered against 36

persons under Sections 147, 148, 149, 324, 307 of the Indian

Penal Code and under Section 135 of the Bombay Police Act. The

complainant was referred to Primary Health Centre, Tamsa where

he was examined by Dr. Balkrishna Bhanegaonkar (P.W.1) and

issued injury certificate (Exh.101). During the course of

investigation, investigating officer P.S.I. Shankar Mali (P.W.9)

prepared spot panchanama and seized blood stained banian from

the spot. During the course of investigation, sticks were seized

from the possession of accused persons under different seizure

memos. After completion of the investigation, charge sheet was

filed before the Judicial Magistrate, First Class, Hadgaon.

3. Offence punishable under Section 307 of the Indian

Penal Code being exclusively triable by Court of Sessions, the

case was committed to the Sessions Court, Nanded. The then

Additional Sessions Judge framed charge (Exh.37) against 36

accused persons for committing offences punishable under

Sections 147, 148, 307 read with Section 149 of the Indian Penal

Code and Section 135 of the Bombay Police Act. As accused

pleaded not guilty, prosecution examined total 9 witnesses. After

Cri. Appeal No.426/2002 (( 4 ))

considering the oral and documentary evidence placed on record,

learned trial Court convicted the accused under Sections 143,

147, 148, 326 read with Section 149 of the Indian Penal Code

and sentenced them to suffer simple imprisonment for six

months and to pay fine of Rs.1000/- each, in default to suffer

simple imprisonment for one month each for the offence under

Section 143 of the Indian Penal Code; rigorous imprisonment for

one year and fine of Rs.2000/- each, in default to suffer simple

imprisonment for two months each under Section 147 of the

Indian Penal Code; rigorous imprisonment for two years and fine

of Rs.3000/- each, in default to suffer simple imprisonment for

three months under Section 148 of the Indian penal Code and

rigorous imprisonment for seven years and fine of Rs.5000/-

each, in default to suffer simple imprisonment for six months

under Section 326 of the Indian Penal Code. Trial Court directed

that all the substantive sentences shall run concurrently. Against

that judgment and order of conviction, the convicted accused

have preferred this appeal.

4. Heard Smt. A.N. Ansari, learned counsel for the

appellants and Shri Y.G. Gujarathi, learned A.P.P. for the

respondent. Learned counsel for the appellant assailed the

judgment and order passed by the trial Court on the ground that,

unexplained delay in lodging F.I.R., conflict in between medical

Cri. Appeal No.426/2002 (( 5 ))

evidence and oral testimony of informant Panjabrao (P.W.2) and

lack of corroboration by independent witnesses.

5. Learned A.P.P. for the State supported the judgment

passed by the trial Court on the ground that, on account of time

spent by prosecution for medical examination of the informant,

the delay in lodging the F.I.R. cannot be viewed with suspicion.

He fairly conceded that, except the informant (P.W.2) and

medical officer (P.W.1) as well as investigating officer (P.W.9),

almost remaining prosecution witnesses have turned hostile.

Contention of the learned A.P.P. is that, even the sole testimony

of Panjabrao (P.W.2), which is corroborated by evidence of

medical officer (P.W.1), is sufficient to establish guilt of the

accused under Sections 143, 147, 148, 326 read with Section

149 of the Indian Penal Code.

6. In the case at hand, inimical terms in between

informant (P.W.2) and the convicted accused is not disputed.

Even the informant Panjabrao (P.W.2) has admitted in his cross-

examination that, he is facing prosecution along with other 45

persons. In addition to this, it emerges that, the incident

occurred due to enmity in between informant and accused

persons as well as out of village politics. Even in this appeal,

copy of the judgment delivered by the Judicial Magistrate, First

Cri. Appeal No.426/2002 (( 6 ))

Class, Hadgaon in R.C.C. No.306/1996 is filed. On perusal of this

judgment, it becomes absolutely clear that, even the informant

and eye witnesses were prosecuted for causing hurt to the

convicted accused persons on the said date of the incident.

Thus, it is evident that, on the basis of one and the same

incident, cross criminal cases were filed against the party of

informant Panjabrao Mane as well as against the convicted

accused and other persons. In this backdrop, when prosecution

witnesses are on inimical terms with accused persons, their oral

testimony must pass the test of close scrutiny. However, merely

on the ground of inimical terms in between accused and the

prosecution witnesses, the testimony of these witnesses cannot

be discarded if otherwise it is trustworthy.

7. To substantiate charges against the accused persons,

apart from oral testimony of Dr. Balkrishna (P.W.1) and

Panjabrao (P.W.2), prosecution has examined Pandit Mande

(P.W.4), Narayan Kadam (P.W.5), Rangrao Mane (P.W.6),

Madhav Mane (P.W.7), as eye witnesses of the incident. These

all witnesses have flatly denied the alleged occurrence. Though

these witnesses were declared hostile and subjected to lengthy

cross-examination by learned A.P.P., nothing could be elicited

which is helpful to establish the link in between convicted

accused persons and assault to informant Panjabrao (P.W.2).

Cri. Appeal No.426/2002 (( 7 ))

Therefore, the oral evidence of these eye witnesses, placed on

record by prosecution deserves to be discarded in toto.

8. Venkatrao Vasurkar (P.W.3) is examined by

prosecution as panch witness on panchanama (Exh.105).

Though this witness has duly proved the preparation of spot

panchanama (Exh.105) and seizure of one banian lying on the

spot, his evidence is useless piece of evidence for the simple

reason that the seized banian was not referred to informant

Panjabrao (P.W.2) and it was not identified by Panjabrao (P.W.2)

as his own banian. Even Panjabrao (P.W.2) nowhere deposed in

his evidence regarding the so called banian found to be lying on

the spot of the incident. Therefore, the evidence placed on

record by prosecution in the form of spot panchanama is of no

help to establish guilt of the accused.

9. Panch Pandurang Pawar (P.W.8) has merely proved

the seizure of four sticks from the accused persons and

preparation of panchanama (Exh.121 to 124). However, seizure

of article like sticks from the villagers is at all not useful to

establish link in between accused and assault to Panjabrao for

the simple reason that stick is most common article found in the

houses of villagers. None of these articles are referred to

Chemical Analyser to establish that it bears the blood stains of

Cri. Appeal No.426/2002 (( 8 ))

the informant Panjabrao (P.W.2). Even these seized sticks were

neither referred to Panjabrao (P.W.2) nor he identified it as

weapon of offence. Therefore, the evidence placed on record in

the form of seizure of sticks from the possession of the accused

persons is also useless piece of evidence and deserves to be

ignored.

10. In view of above discussion, except the oral

testimony of Panjabrao (P.W.2) and Medical Officer (P.W.1), no

other evidence is available against the accused persons. In the

circumstances, I have to examine whether sole testimony of

Panjabrao (P.W.2) is trustworthy without any corroboration.

Panjabrao (P.W.2) deposes before the Court that, on the date of

the incident at about 8.00 to 8.30 p.m., accused persons visited

his house and they assaulted him by sticks and axe on his head

and, therefore, he lodged report to police station. From the

testimony of this witness, it further emerges that he was referred

for medical examination. This witness has duly proved his F.I.R.

(Exh.103).

11. However, after going through the oral testimony of

Panjabrao (P.W.2), it reveals that, he has made vague statement

that accused persons came to his house and assaulted him by

sticks and axe. He nowhere made it clear which accused were

Cri. Appeal No.426/2002 (( 9 ))

holding sticks and which accused were holding axe in their

hands. Even in examination-in-chief itself Panjabrao (P.W.2)

nowhere deposes that axe blow was inflicted on his head by

anyone of the convicted accused. On the other hand, from the

testimony of Dr. Balkrishna (P.W.1), it emerges that, injury No.9

found on the occipital region of the informant is incised wound

which is not possible by the stick. Thus, the oral testimony of

informant before the Court is not consistent with injury No.9

proved by Dr. Balkrishna (P.W.1). Even during investigation, no

sharp edged weapon is seized by the investigating officer from

anyone of the accused person. Thus, it can be safely said that

the oral version of Panjabrao (P.W.2) is not consistent with

medical evidence.

12. Otherwise also, the testimony of Dr. Balkrishna

(P.W.1), who examined the informant at P.H.C., Tamsa is of no

help to the prosecution to connect the accused with the injuries

found on the body of informant for the simple reason that, injury

Nos.1 to 7 are contusions and injury No.8 is lacerated wound.

Colour of these injuries is not mentioned by the Medical Officer in

the injury certificate Exh.101. Even in deposition, Balkrishna

(P.W.1) nowhere deposed regarding colour of the injury Nos.1 to

8. Without colour of the contusions and lacerations, age of such

injuries cannot be ascertained. Even from the testimony of

Cri. Appeal No.426/2002 (( 10 ))

Balkrishna (P.W.1), it emerges that he himself is not certain as to

what was the probable age of the injuries found on the body of

Panjabrao (P.W.2). In examination-in-chief, Balkrishna (P.W.1)

says that the age of the injury was within 10 to 14 hours.

However, in cross-examination, he admits that the age of the

injuries can be within 24 hours also. Such type of vague

evidence of Medical Officer cannot be relied upon as trustworthy

testimony to connect the accused with the so called injuries

found on the body of Panjabrao (P.W.2).

13. The damaging blow to the prosecution case is that,

though Dr. Balkrishna (P.W.1) deposed that the injury No.6

found on the body of Panjabrao (P.W.2) is grievous, he nowhere

deposed that injury No.6 is dislocation of any bone. In the

deposition, this witness has described injury No.6 only as

contusion at left thumb of the size 1/4 x 1/4 cm. Thus, obviously

this injury No.6 - contusion does not fall within the fourcorners

of the definition of 'grievous hurt' under Section 320 of the

Indian Penal Code.

14. Learned A.P.P. tried to take support of M.L.C.

Certificate Exh.101, wherein note is taken regarding X-ray

examination and dislocation of bone. However, such note cannot

be read as substantive evidence unless Balkrishna (P.W.1)

Cri. Appeal No.426/2002 (( 11 ))

deposes that there was dislocation of metacarpophalangeal joint

of left thumb. Only oral evidence of medical officer is substantive

evidence and not the M.L.C. Certificate. Another important aspect

is that, though according to Dr. Balkrishna (P.W.1) grievous hurt

i.e. contusion was found on 'left thumb' of informant Panjabrao,

Panjabrao (P.W.2) deposes otherwise that during the incident he

sustained injuries on his 'right thumb' and the climax is that the

F.I.R. Exh.103 spells out that, Panjabrao (P.W.2) sustained injury

on his thumb when he fell on the ground. If Panjabrao (P.W.2)

sustained injury to his thumb due to fall on the ground, it cannot

be said that it was voluntarily caused hurt to Panjabrao by any of

the accused person. Thus, obviously, the oral testimony of

Panjabrao (P.W.2) is not consistent with medical evidence of Dr.

Balkrishna (P.W.1) as well as with his own F.I.R.

15. Important point is that, in the backdrop of inimical

terms in between informant and accused persons as well as filing

of cross criminal cases against each other, the delay in lodging

F.I.R. needs to be explained by the prosecution. As per

prosecution case, the incident occurred on 23.5.1996 at about

8.00 p.m., but the F.I.R. is lodged on 24.5.1996 at 8.15 a.m. to

Police Station, Tamsa. Thus, there is delay of 12 hours in filing

the F.I.R., which is not explained by the prosecution in any

manner. Thus, in the background of inimical terms in between

Cri. Appeal No.426/2002 (( 12 ))

the parties, the unexplained inordinate delay in lodging the F.I.R.

creates the possibility of concoction of false case against the

accused.

16. In the circumstances, when oral testimony of

Panjabrao (P.W.2) is in conflict with medical evidence as well as

his own F.I.R., the unexplained delay in lodging F.I.R. is certainly

fatal to the prosecution case to extend the benefit of doubt in

favour of the accused.

17. In the result, I hold that the conviction recorded by

learned trial Court ignoring all the above discussed important

aspects of the case, is bad in law and deserves to be set aside.

Accordingly, I pass the following order :

ORDER

(i) Criminal Appeal is allowed.

(ii) The conviction and sentence imposed by learned 2nd

Additional Sessions Judge, Nanded in Sessions Case

No.116/1997 against accused No.1 Ramrao

Sambharao Mane, accused No.5 Ramchandra

Tukaram Mane, accused No.7 Ganesh Sambharao

Mane, accused No.22 Bhagwan Ganpati Mane,

accused No.29 Pralhad Sambhaji Mane and accused

Cri. Appeal No.426/2002 (( 13 ))

No.31 Dagdu Narba Jadhav for the offences

punishable under Sections 143, 147, 148, 326 read

with Section 149 of the Indian Penal Code is set

aside.

(iii) The accused No.1 Ramrao Sambharao Mane, accused

No.5 Ramchandra Tukaram Mane, accused No.7

Ganesh Sambharao Mane, accused No.22 Bhagwan

Ganpati Mane, accused No.29 Pralhad Sambhaji Mane

and accused No.31 Dagdu Narba Jadhav are acquitted

of the offences punishable under Sections 143, 147,

148, 326 read with Section 149 of the Indian Penal

Code.

(iv) Bail Bonds and surety bonds of the accused stand

cancelled.

(v) The accused be set at liberty forthwith.

(vi) Fine amount deposited by these accused, if any, be

refunded to them after the period of appeal is over.

       (vii)      Fine amount deposited by accused No.12                        Kailash

                  Jayantrao       Mane    be      refunded         to     his     legal

representative/s after due verification.

(viii) Accused No.1, 5, 7, 22, 29 and 31 shall execute

before the trial Court bail bonds with sureties for the

amount of Rs.5000/- (Rupees five thousand) each to

appear before the Supreme Court as and when

Cri. Appeal No.426/2002 (( 14 ))

notices are issued to them in respect of any

proceedings filed against this judgment vide Section

437-A of the Code of Criminal Procedure and the said

bail bonds shall remain in force for a period of six

months from today.

( SUNIL K. KOTWAL ) JUDGE

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