Sunil S/O Ramesh Wahurwagh And 2 ... vs State Of ...
2017 Latest Caselaw 9813 Bom

 apeal556of02.odt                          1




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


                     CRIMINAL APPEAL NO.556 OF 2002


 1        Sunil s/o. Ramesh Wahurwagh,
          aged about 25 years,

 2        Raju s/o. Shriram Wahurwagh,
          aged about 24 years,

 3        Arvind s/o. Shantaram Wahurwagh,
          aged about 22 years,

          All r/o. Kanshivni,
          Tahsil & District Akola.                          ...APPELLANTS


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


 The State of Maharashtra,
 Through Police Station Officer
 Borgaon Manju, District Akola.                     ...RESPONDENT
 -------------------------------------------------------------------------------------------
          Mr.R.M. Daga, counsel for the  Appellants.
          Mr. H.R. Dhumale, Additional Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                      ROHIT B. DEO, J. 

  DATE OF RESERVING THE JUDGMENT                 
                                                 : 19.09.2017
  DATE OF PRONOUNCING THE JUDGMENT           : 20.12.2017

 JUDGMENT:

The appellants (hereinafter referred to as "the

accused") are aggrieved by the judgment and order dated

7.10.2002 passed by the 2nd Additional Sessions Judge, Akola, in

Sessions Trial 227 of 2001, by and under which, the accused are

convicted of offence punishable under section 325 of the Indian

Penal Code ("IPC" for short), and are sentenced to suffer rigorous

imprisonment for 5 years and to payment of fine of Rs.500/-.

2 Heard Shri. R.M. Daga, the learned counsel for the

accused and Shri. H.R. Dhumale, the learned Additional Public

Prosecutor for the respondent / State.

3 The case of the prosecution as is unfolded during the

course of trial is thus:

The accused and one Mukunda Sahdeo Jadhav (arrayed as

accused in the trial who is acquitted by the learned Sessions

Judge) and the complainant Santosh Waghmare are residents of

Kanshivni.

On the fateful day, i.e. on 19.8.2001, at 7.30 p.m. the

complainant Santosh Waghmare was at home and his brother

Arun Waghmare was working in the field. Arun finished his work

and while returning home went to the house of accused Sunil and

confronted him about the trespass of cow in the field and

altercation ensued. On hearing the commotion, the complainant

Santosh and his sister Rekha rushed to the spot which concededly

is near the house of accused Sunil. Complainant Santosh and

Rekha saw accused Sunil and Raju assaulting Arun with pipes and

accused Arvind and Mukunda assaulting Arun with sticks.

Complainant Santosh intervened in the quarrel and was assaulted

by accused Sunil and Raju on hand, leg and back. Accused Sunil

and Raju also shoved Rekha aside when she attempted to

intervene in the altercation. Arun suffered injuries on head and

stomach. He was taken to Borgaon Manju Police Station and then

to the Akola hospital. Santosh lodged report at Borgaon Manju

Police Station (Exh. 52). The Borgaon Manju police initially

registered offence punishable under section 325 read with section

34 of IPC on the basis of the report lodged by Santosh and

consequent to the death of Arun on 20.8.2001, offence under

section 302 read with section 34 of IPC was additionally

registered. Upon completion of the investigation, chargesheet was

submitted in the Court of the Chief Judicial Magistrate, Akola,

who committed the proceedings to the Sessions Court.

The learned Sessions Judge framed charge under section 302, 325

read with section 34 of IPC. The accused abjured guilt and

claimed to be tried.

4 The prosecution inter-alia relied on the evidence of

PW 1 - Santosh Waghmare (complainant), PW 2 - Pralhad

Shivankar, PW 3 - Rekha Thakare and PW 8 - Dnyaneshwar Raut

who were examined as eye witnesses. PW 5 - Dr. Mohokar, who

conducted the post mortem is examined to prove post mortem

report Exh. 62. PW 6 - Ramchandra Wankhede who is examined

to prove the recovery of weapons from the accused did not

support the prosecution. PW - 9 is the Investigating Officer.

5 The defence admitted preliminary report about the

incident Exh. 15, spot panchanama Exh. 16, inquest Exh. 17,

report to Medical Officer in proforma, panchanama of seizure of

clothes of deceased Exh. 19, invoice challan Exh. 20 and 21, duty

pass to constable Sharif Hussain b.No. 1411 Exh. 22, covering

letter to C.A. dated 9.9.2001 by PSI Borgaon Manju Exh 24 and

25, requisition to Tahsildar for drawing the sketch of scene of

occurrence Exh. 27, the sketch of scene of occurrence Exh. 28, the

injury form of deceased Arun Waghmare at Exh. 29, the report by

police constable to PSI, Borgaon Manju about taking injured Arun

and complainant Santosh for medical examination, the extract of

OPD Police information book Exh. 31, the request letter by PSI for

taking blood sample of the deceased Exh. 32, the receipt of dead

body given to relatives Exh. 34, summons under sec. 174 of Cr.

P.C. to the relatives Exh. 35 and 36, duty pass Exh. 37, P.M.

report, blood sample and clothes of deceased, duty pass to

constable Vishwanath B. No. 1 by PSI - Rathod for collecting X-ray

report, injury form of Santosh Exh. 42, duty pass to constable

Rafiq Hussain B. No. 1411 Exh. 45 and Medical certificate of

Santosh Exh. 77.

6 The defence as is discernible from the tenor of the

cross-examination and the statement recorded under section 313

of the Code of Criminal Procedure, is of total denial and false

implication. The learned Sessions Judge was pleased to acquit

Mukunda Jadhav and to convict the other accused as aforestated.

7 Shri. R.M. Daga, the learned counsel for accused

submits that the judgment and order impugned is against the

weight of evidence on record. The marshalling of evidence on

record is flawed, is the submission. The submission, which is in

the alternate, is that in view of the acquittal of accused Mukunda

Jadhav, and the fact that it is not possible to ascertain as to who

inflicted the fatal blow, the accused could have at the most been

convicted of offence punishable under section 323 are 324 of IPC.

8 Per contra, Shri. H.R. Dhumale, the learned

Additional Public Prosecutor supports the judgment and order

impugned. The submission of the learned APP is that there is no

infirmity whatsoever either in the marshalling of evidence or the

finding recorded.

9 The post mortem report Exh. 62 opines that the death

was due to haemorragic shock as a result of lacerated wounds

over the visceral part of spleen. The post mortem report Exh. 62

refers to the following injuries:

(i) Abraded contusion of size 4 cms x 4 cms over right arm outer aspect middle 1/3rd.

(ii) Abrasion over left elbow 1 cm x 1 cm over posterior aspect.

(iii) Abrasion over left knee joint, anterior aspect of size 1 cm x 1 cm.

(iv) Lacerated wound of about 2 cms x 2 cms x 1cm over 4 cm below the right west and 2 cms behind the anterior superior than spleen.

(v) Abraded contusions two in number each of about 4 cm x 0.5 cm, over left side of abdomen, occupying the left hypochondriac and left lumber region.

(vi) Abraded contusion 6 cms x 3 cms over right crest

(vii) Contusion over left side of chest laterally in the region

between 9th rib posterior and 11th rib anterior size of 15 cms x 4 cms

(viii) No fracture palpable.

PW 5 - Dr. Mohokar who conducted the autopsy on the

body of deceased Arun Waghmare has deposed that the injuries

are possible by sticks and iron pipes produced in the court. In the

cross-examination, PW 5 admits that except injury 7, the other

injuries are superficial. PW 5 denies the suggestion that injury 7 is

possible due to fall, although, he admits that injuries 1 to 6 may

be possible due to fall.

10 The complainant - Santosh Waghmare who is

examined as PW 1 has deposed that on hearing the commotion,

he and his sister Rekha rushed to the spot of the altercation near

the house of accused Sunil. Accused Sunil and Raju were

assaulting the deceased Arun with pipe and accused Arvind and

Mukunda were assaulting the deceased Arun with sticks. PW 1

states that when he intervened, he was assaulted by accused Sunil

and Raju on hand, leg and back by pipe and his sister was shoved

when she attempted to intervene. It is extracted in the

cross-examination that when PW 1 rushed the scene of

occurrence, Arun was lying on the spot. It is further elicited in the

cross-examination that the travelling time from the residence of

the witness to the spot of occurrence is 10 minutes and that PW 1

reached the spot first and Rekha followed. It is further brought on

record that the police made inquiries with the deceased Arun and

reduced to writing the report lodged by Arun.

It is suggested to the witness that the deceased Arun had

consumed liquor and had quarreled with some persons since the

morning. It is further suggested that in his report Arun alleged

that 10-11 persons assaulted him. It is admitted that PW 1 did

not name Mukunda in the report. Certain omissions are also

brought on record including the statement that the accused

pushed Rekha.

11 PW 2 - Pralhad states that when he was searching for

his cow on 19.8.2001 between 7.00 pm to 7.30 pm, he was a

witness to exchange of words between accused Raju and deceased

Arun. He states that he pacified them, however, again there was a

verbal altercation, accused Raju went to the house of accused

Arvind and returned armed with pipes, accused 1 Sunil followed,

accused Arvind and Mukunda also arrived at the spot and all of

them assaulted Arun. Pralhad states that accused Sunil and Raju

were armed with pipes and accused Arvind and Mukunda were

armed with sticks.

The said witness has deposed that complainant Santosh and

Rekha came to the spot after Arun fell on the ground. In the

cross-examination, he, in an obvious exaggeration states that the

physical assault went on for 30 to 45 minutes, many neighbours

gathered on the spot, is the deposition. It is elicited in the

cross-examination of Pralhad that the statement of complainant

and Santosh was recorded in his presence and then the police

asked the witness Pralhad to give statement like that of Santosh.

12 Rekha Thakare, the sister of the complainant and the

deceased is examined as PW 3. Her presence on the spot is

disbelieved by the learned Sessions Judge, and rightly so. It is

elicited in the cross-examination that Rekha reached the spot 10

to 15 minutes after hearing the commotion and when she reached

the spot Arun was lying on the ground in an injured condition.

She has deposed that when she reached the spot the complainant

Santosh was being assaulted by accused with pipes and that

assault went for 10 to 15 minutes.

13 Laxmi Thakare - PW 4 is examined to prove that

accused 1 Sunil owned cattle. Ramchandra Wankhede - PW 6

who is examined to prove the discovery of the sticks and pipes at

the instance of the accused Mukunda, Raju, Sunil and Arvind did

not support the prosecution. It is extracted in the cross-

examination, that PW 6 has signed on the respective

memorandums under section 27 of the Evidence Act. PW 7-

Sudhakar Patil, who was then in-charge of the station diary has

registered crime under section 302 read with section 34 of IPC.

In the cross-examination, PW 7 admits that he inquired from Arun

about the incident. The witness, however, states that he did not

reduce the report to writing and denies the suggestion that

deceased Arun did not disclose the names of assailants. He admits

that the names of accused Arvind and Mukunda are not disclosed

in the report lodged by the complainant Santosh. Dnyaneshwar

Raut - PW 8 is examined as eye witness. He has corroborated the

version of witness Pralhad that there was a verbal altercation

between deceased Arun and Raju, Sunil and Arvind and that

Pralhad intervened in the altercation. PW 8 - Dnyaneshwar then

states that he heard hue and cry and came out of house and on

coming out of house witnessed Arun being assaulted by accused

Sunil and Raju with pipes. The witness states that accused Arvind

and Mukunda were armed with sticks. The witness further does

not depose that accused Arvinda and Mukunda were participants

in the assault. The witness states that when Rekha and Santosh

arrived on the spot, Arun was lying on the ground. This witness

does not corroborated the version of the complainant Santosh and

Rekha that accused assaulted Santosh or pushed Rekha.

In the cross-examination, the witness admits that when he

reached the scene of occurrence, deceased Arun was laying on the

ground and that the physical altercation with the complainant

Santosh did not take place in his presence. PW 9 - Hanuman

Rathod is the Investigating Officer.

14 I have already noted supra that the learned Sessions

Judge has held that the evidence of PW 3 Rekha that she

witnessed the assault is suspect. Her evidence is appreciated by

the learned Sessions Judge thus:

"Then comes the evidence of P.W.3 Rekha. She admittedly went to the scene of occurrence after P.W.1 left the house. According to her she went within 10 to 15 minutes on hearing cries. She stated that when she reached there no body was present. On perusal of the testimony of P.W.3 it can be said that she went to the spot after everything was over and she is deposing merely because she is sister of deceased. Though she stated about the injuries to complainant and deceased, it can be said that she is not the eye witness to the incident. The fact that her name does not appear in the F.I.R. So also the act of pushing her by the accused, is not appearing, leads to the inference of she being not the eye witness".

I am in agreement with the finding recorded that PW 3

Rekha is not likely to have witnessed the assault. PW 2 - Pralhad

Shivankar and PW 8 - Dnyaneshwar Raut are independent

witnesses. Shri M.R. Daga, the learned counsel for the accused is

vehement in criticizing the evidence of PW 2 Pralhad since he

admits that he was asked by the police to give statement like the

statement given by the complainant Santosh. The said witness,

has indulged in an obvious exaggeration, is the further

submission. The learned counsel for the accused is justified in

contending that the evidence of Pralhad must be closely

scrutinized. The version that the physical assault went on for 30

to 45 minutes, is obviously exaggeration and embellishment. This

version is inconsistent with the medical evidence. PW 5 - Dr.

Mohokar admits that injury 1 to 6 suffered by the deceased Arun

were superficial and the only serious injury was injury 7 which

damaged the spleen. The medical evidence excludes the

possibility of a concerted assault by four persons armed with pipes

and sticks for 30 to 45 minutes. However, the evidence of PW 2 -

Pralhad Shivankar can not be discarded altogether. The chaff

must be separated from the grain. The evidence that he witnessed

the verbal altercation, separated, pacified deceased and the

accused, is corroborated by PW 8 - Dnyaneshwar Raut.

The evidence of PW 8 - Dnyaneshwar is trustworthy to the extend

he has corroborated the version of Pralhad that there was a verbal

altercation between deceased Arun, accused Raju, Sunil and

Arvind and that PW 2 - Pralhad intervened. PW 8 - Dnyaneshwar

Raut has indeed deposed that he witnessed Arun being assaulted

by accused Sunil and Raju with pipes. The witness, however, has

not attributed any direct role in the assault to accused Arvind and

accused Mukunda, although, the witness states that they were

armed with sticks. Dnyaneshwar - PW 8 states that Arun was

lying on the ground when Santosh and Rekha arrived at the scene

of occurrence. Dnyaneshwar does not speak of an assault on

Santosh by any of the accused.

15 The most important witness from the perspective of

the prosecution is PW 1 Santosh who is the complainant. He is an

injured witness. The injury certificate Exh. 77 which reveals that

the witness suffered injuries albeit relatively minor, is not

disputed by the defence. Ordinarily, the evidence of an injured

witness must be given due weightage since evidence of such

witness is on a higher pedestal than that of other witnesses.

An injured witness is less likely to falsely implicate innocent and

to exculpate the guilty. The presence on the scene of occurrence

is reasonably certain in view of the injuries suffered and lends

assurance to the prosecution version. However, having holistically

appreciated the entire evidence on record, although, the

complainant Santosh was indeed present on the scene of

occurrence, the defence has created enough doubt on the version

of the complainant that he witnessed the assault on the deceased

Arun. Concededly, when he reached the spot of occurrence, and

the travelling time according to the witness is 10 minutes from his

house to the scene of occurrence, Arun was laying on the ground.

However, although, the complainant has obviously exaggerated

the nature and extent of assault which he suffered, his evidence

can not be discarded altogether. Santosh has concededly suffered

injuries, although, the injuries are not consistent with his version

that he was assaulted on hand, leg and back by pipes, by accused

Sunil and Raju. The only injuries noticed in the medical

examination is a contusion and abrasion on the right forearm.

Witnesses are however, prone to exaggerate, which is a hard

reality. The complainant's evidence can not be brushed under the

carpet totally.

16 In so far as appellant 3 Arvind s/o Shantaram

Wahurwagh is concerned, the prosecution has not established the

offence punishable under section 325 of the IPC beyond

reasonable doubt. Be it noted, that Arvind is not named in the

First Information Report lodged by P.W.1 Santosh Rakrushna

Waghmare. The report names Sunil Wahurwagh, Raju

Wahurwagh and two others. The evidence of P.W.1 Santosh

Waghmare, to the extent the same relates to the assault on

deceased Arun, is not implicitly reliable and for reasons recorded

earlier, it is highly unlikely that P.W.1 Santosh Waghmare

witnessed the assault on deceased Arun. P.W.1 Santosh

Waghmare deposes that he was assaulted by Sunil and Raju.

Arvind is not named as an assailant. P.W.8 Dnyaneshwar Raut

does state that Arvind had stick in his hand, but then he does not

attribute any further role to Arvind in the assault on Arun. It is

true that P.W.2 Pralhad Shionkar states that Arvind and Mukunda

had sticks and they too assaulted the deceased Arun. However, in

view of the inconsistent versions of the witnesses as regards the

role played by Arvind and the fact that he was not named in the

F.I.R., sufficient doubt is created about his complicity in the

assault. Appellant-accused 3 Arvind is entitled to the benefit of the

doubt.

17 In so far as appellant-accused 1 and 2 Sunil

Wahurwagh and Raju Wahurwagh are concerned, that they

assaulted the deceased Arun is proved beyond reasonable doubt.

18 However, from the evidence on record it is difficult to

ascertain as to who delivered the blow which caused the grievous

hurt. Although Arvind suffered seven injures, injuries (i) to (vi)

were simple injures, according to the Doctor. Injury (vii)

unfortunately damaged the spleen leading to death. It would not

be appropriate to invoke section 34 of the Indian Penal Code since

the evidence on record does not suggest that the accused shared a

common intention to cause injury to the deceased Arun.

Concededly, the scene of occurrence is near the house of the

accused and the deceased had gone to confront the accused Sunil

on the issue of trespass by cattle. It is difficult to draw an

inference that the accused had any meeting of mind or pre-

designed plan to assault the deceased Arun. Since it is difficult to

ascertain who delivered the fatal blow which damaged the spleen,

I deem it appropriate to set aside the conviction of the accused

under section 325 of IPC and instead to convict the accused under

section 324 of IPC.

19 The judgment and order impugned is set aside to the

extent accused 3 Arvind is convicted for offence punishable under

section 325 of IPC read with section 34 of the IPC. Arvind is

acquitted of the said offence.

20 The Appellant-accused 1 Sunil Wahurwagh and 2

Raju Wahurwagh respectively are acquitted of offence punishable

under section 325 of IPC and are convicted for offence punishable

under section 324 of IPC. The accused 1 and 2 are sentenced to

suffer rigorous imprisonment for a period of two years and to

payment of fine of Rs.20,000/- each and in default to suffer

further rigorous imprisonment of six months.

21 The fine, if deposited by the accused, be paid to the

legal heirs of the deceased Arun s/o Ramkrishna Waghmare as

compensation.

22 The accused are entitled to set off under section 428

of the Code of Criminal Procedure.

23 The bail bond of the accused 1 and 2 shall stand

cancelled and they shall be taken into custody to serve the

remainder period of the sentence. The Superintendent of Police,

Akola to submit a compliance report in the registry of this court

within 15 days, failing which the disposed of appeal shall be listed

under the caption order matters for passing appropriate orders.

24 The appeal is partly allowed and disposed of in the

above terms.

JUDGE

RS Belkhede/NSN