Prakash Mahadeorao Mohture vs State Of Mah.Thr.Pso Bhandara
2017 Latest Caselaw 9936 Bom

 apeal558.04.J.odt                         1




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


                     CRIMINAL APPEAL NO.558 OF 2004


          Prakash s/o Mahadeorao Mohture,
          Aged about 39 years,
          Occ: Agriculturist, R/o Khapa,
          Tah. & District Bhandara.                         ....... APPELLANT


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


          State of Maharashtra, through
          Police Station Officer, Police Station
          Sihora, Tahsil Tumsar,
          District Bhandara.                                 ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri S.G. Joshi, Advocate holding for Shri Anil Mardikar,
          Senior Advocate for Appellant.
          Shri H.R. Dhumale, APP for Respondent/State.
 -------------------------------------------------------------------------------------------


 CORAM:           ROHIT B. DEO, J. 

 DATE OF RESERVING THE JUDGMENT                                      :      15.09.2017
 DATE OF PRONOUNCING THE JUDGMENT                                    :      21.12.2017



 1]               The appeal is directed against the judgment and order

dated 19.08.2004 passed by the 2nd Ad-hoc Assistant Sessions

Judge, Bhandara in Sessions Trial 93/2001, by and under which,

the appellant is convicted for offence punishable under section

307 of the Indian Penal Code ('IPC' for short) and is sentenced to

undergo rigorous imprisonment for 10 (Ten) years and to

payment of fine of Rs.10,000/- (Ten thousand).

2] Heard Shri Sumit Joshi, the learned Counsel holding

for Shri Anil Mardikar, the learned Senior Advocate for the

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

Prosecutor for the respondent/State.

3] Heard Shri Sumit Joshi, the learned counsel for the

appellant-accused assails the judgment and order impugned as

against the weight of the evidence on record. The evidence of the

prosecution witnesses is marred by inter se inconsistencies,

exaggeration and embellishment, is the submission. The learned

counsel submits, arguendo and in the alternate, that even if the

evidence on record is taken at face value, offence punishable

under section 307 of the IPC is not established. Per contra, the

learned A.P.P. would support the judgment and order impugned,

and would submit that the judgment and order impugned suffers

from no infirmity, on facts or in law.

4] The case of the prosecution as is unfolded during the

trial is thus :-

Sahasram Aswale is a resident of village Khapa and is

engaged in the business of supply of building material.

The appellant (hereinafter referred to as 'the accused') is

Sahasram's brother-in-law, to wit the brother of Sahasram's wife

Ujwala. Sahasram supplied part of the centring material needed

by the accused for the construction of his house but did not supply

centring material for the upper-stairs, the accused was finding it

difficult to climb over the slab to sprinkle water for curing.

The accused engaged another contractor one Wahile which led to

some misunderstanding between Sahasram and the accused

Prakash. The incidents which occurred prior to the incident are

blurred. However, what is reasonably discernible is that there was

some altercation between the two 15 days prior to the incident.

Sahasram, who had left home in the early morning at

10:00 a.m. on 28.05.2001, he was parking the Luna in the

court-yard. The accused arrived at the spot armed with a plastic

bottle containing acid and iron stick and poured the acid on

Sahasram causing extensive burns. Sahasram shouted in pain,

family members namely Ujwala and son Pawan, brother-in-law

Rakrushna and his wife appeared on the spot. A scuffle ensued.

Concededly, Pawan, Ujwala, Ramkrushna and accused suffered

burn injures in varying degrees.

5] The injured were taken to the Government Hospital,

Tumsar, the Medical Officer informed the Police Station Tumsar

and PSI Borkar went to the Hospital and recorded the statement

of Pawan which is the oral report marked Exh.13 on the record of

the trial court. The printed F.I.R. is Exh.14. On the basis of the

said report offence punishable under section 324 of the IPC was

registered against the accused.

PSI Reddiwar who took over the investigation visited

the spot of the incident, prepared spot panchnama, seized the

plastic bottle and other articles which he noticed at the spot.

PSI Reddiwar requested the Executive Magistrate, Tumsar to

record the dying declaration of the injured. In view of the injuries

referred to in the injury certificate, PSI Reddiwar additionally

registered offence punishable under section 307 of the IPC.

Upon completion of the investigation, charge-sheet was submitted

in the Court of the Judicial Magistrate, First Class, Mohadi, who

committed the case to the Sessions Court. The learned Sessions

Judge framed charge Exh.8, the accused abjured guilt and claimed

to be tried in accordance with law. The defence is that it was

Sahasram who threw acid on the person of the accused.

6] Concededly, the accused is the brother of Ujwala the

wife of injured Sahasram. Ramkrushna is the brother of Ujwala

and the accused. The house of the accused is on the southern side

of the house of the injured Sahasram and the house of

Ramkrushna adjoins the house of the injured Sahasram.

The previous enmity, albeit not very old, between the accused and

injured Sahasram is not in serious dispute. The bone of contention

was apparently the 3 feet open space between the house of the

accused and the injured Sahasram and the relationship only

worsened over the misunderstanding or dispute relating to the

fixing of the centring. Prior to the incident, one Wahile who was

engaged by the accused after the misunderstanding with the

injured Sahasram was obstructed by the injured Sahasram when

Shri Wahile was to fix the centring for the upstairs. The reasons

for the strained relationship could be contentious, the fact that the

relationship was strained is not in serious dispute.

7] Pawan Aswale whose statement is treated as oral

report is examined as P.W.1. He has deposed that at 10:15 a.m.

on 28.05.2001 just as Sahasram returned home the accused

approached Sahasram and threw acid on his person.

Pawan, Ujwala, Ramkrushna and the wife of Ramkrushna

intervened to rescue Sahasram and in the scuffle which followed

the remaining acid in the bottle splashed on the person of Pawan,

Ujwala, Ramkrushna and the accused. Ramkrushna arranged a

vehicle and the injured including the accused were taken to the

Government Hospital, Tumsar. The examination-in-chief is

broadly consistent with the contents of the oral report. P.W.1

Pawan was extensively cross-examined. However, the credibility

of the said witness is not shaken and there is no reason to

disbelieve P.W.1 Pawan who has deposed that the accused came

armed with a bottle of acid and iron stick and poured acid on the

person of Sahasram the father of P.W.1 Pawan. The strained

relationship between the accused and the injured Sahasram is

brought out in the cross-examination, but then, the strained

relationship is not disputed by the complainant or the other

prosecution witnesses who have deposed that it was the accused

who poured acid on the person of the injured Sahasram. P.W.1

has denied the suggestion that it was the injured Sahasram who

had a bottle of acid with him and that in the scuffle the liquid in

the said plastic bottle splash on the injured Sahasram,

Ramkrushna, Ujwala and P.W.1 Pawan.

The injured Sahasram is examined as P.W.2. He has

deposed that accused is serving as Chemist in Tambi Industries

near Khapa village. P.W.2 has narrated in detail the circumstances

leading to the strained relationship between the accused and

P.W.2. The deposition as to what transpired on the day of the

incident is broadly consistent with that of P.W.1 Pawan. P.W.2 has

deposed that due to the acid which the accused poured on his

person, he suffered severe and extensive injuries and was

hospitalized for ten days in Government Hospital, Nagpur and at

Private Hospital of Dr. Anjankar for 15 to 20 days. The clothes

which the witnesses wore were burnt due to acid and these

clothes were seized by the Police is the deposition. The witness

describes the injuries and the after effect thus :-

I am having injury to left ear, left ear is practically drop of. I am having burning injuries on my left side and having hearing problem from left side ear. Due to the burning injuries, there is a itching and this problem is severe when I work in light. I am unable to perform heavy work. My left hand is practically workless due to cutting of left vain. I was operated, the skin is fixed to the body and due to this movements are not free.

8] P.W.2 was also subjected to extensive

cross-examination which, however, achieves nothing from the

perspective of the accused. Nothing is elicited to discredit P.W.2

or to render the evidence vulnerable. Substantial part of the

cross-examination is directed at bringing on record the inter se

dispute and the strained relationship, which I have noted supra is

really in dispute. It is however, elicited that P.W.2 does not

possess the discharge certificate of Government Hospital, Nagpur.

A suggestion is given to P.W.2 that he suffered only minor injury

and that he was neither treated at the Government Hospital,

Nagpur nor at the Private Hospital of Dr. Anjankar, which

suggestion is denied. It is also suggested to P.W.2 that it was

P.W.2 and the other family members who assaulted the accused

and poured acid on the person of the accused.

9] Ujwala, the sister of the accused and the wife of

P.W.2 Sahasram is examined as P.W.3. She has deposed that

between 10:30 to 11:00 a.m. on 28.05.2001 when she was in the

varandah of the house, her husband P.W.2 entered the court-yard,

P.W.3 heard the accused shouting 'Ala Sala'. She states that the

accused then approached P.W.2 Sahasram with a plastic bottle

and iron stick. She attempted to stop the accused from

approaching her husband. The accused showed her aside and

poured acid on the person of P.W.2. She states that since P.W.2

was shouting aloud in agony she sprinkled water on the injuries.

She states that while attempting to pull the iron stick from the

hand of the accused, some acid fell on her face, head and left

hand. She suffered an injury on the head in attempting to pull the

iron stick from the hand of the accused. She has deposed that the

accused too suffered injury since some drops fell on his person

while he was pouring acid on the person of Sahasram.

P.W.3 suggested that the evidence of P.W.3 Ujwala,

who is the blood sister of the accused, is not shown to be

unreliable or untrustworthy. She has come across as a truthful

witness although she was subjected to gruelling

cross-examination. She is also suggested that there was a scuffle

and it was her husband injured Sahasram who poured acid on the

person of the accused.

Ramkrushna who is examined as P.W.4 did not

support the prosecution. However, in the examination-in-chief

P.W.4 Ramkrushna states that he saw the accused, the injured

Sahasram, Ujwala and Pawan engaged in a scuffle. He was treated

as a hostile witness and cross-examined on behalf of the

prosecution. He admits that the clothes of the injured Sahasram

were burnt and he was shouting in pain. He admits that Ujwala

suffered burn injuries on face and that both Sahasram and

Prakash were admitted at the Government Hospital, Tumsar as

indoor patients. In the cross-examination on behalf of the accused,

it is the defence which has brought on record that it was the

injured Sahasram who was having major injuries on his person,

and that the incident took place in the court-yard of the injured

Sahasram. It is the defence which has brought on record that the

injured Sahasram was initially treated at Government Hospital at

Tumsar for 2 days and thereafter he was shifted to Nagpur. Be it

noted, that suggestions were consistently given to the injured

Sahasram and P.W.3 Ujwala that the injured Sahasram was not

treated at Nagpur.

10] The Investigating Officer Harishankar Reddiwar is

examined as P.W.7. He states that it was after receiving the injury

certificates of the victim that he additionally registered offence

under section 307 of the IPC.

11] The report of the Chemical Analyzer Exh.42 opines

that the white plastic container which was seized from the spot

contents concentrated sulphuric acid. Sulphuric acid is also

detected on the clothes worn by the victim and the accused.

Dr. Sarita Patil the then Medical Officer at

Government Hospital, Tumsar is examined as P.W.9. She, after

examining the injured Sahasram issued injury certificate Exh.52.

The relevant portion of her deposition reads thus :-

On the same day, I have examined Sahasram Kashiram Aswale, he has burnt over minor over right extremity, minor over exalla, and minor burn no.45 on right side of face, age of burns within 12 hours, cause of burn due to sulfuric acid, period of recovery 8 to 10 days, in no complication occurred, age of injury caused within 12 hours. Accordingly, I issued medical certificate, bear my signature, it is in my hand writing, it is a Exh.52. Though the injuries are superficial, but the complications can be serious. The injuries may be deep. If septicemia occurs due to the deep injury, there is possibility of death. Due to the pouring acid, there is possibility of differmative of muscles.

Dr. Sarita Patil also examined the accused Prakash

and issued injury certificate Exh.55 which refers to burns over

right arm, burns over right side of neck, burns over left extremity

and burns over left side of chest.

12] Dr. Patil has further deposed that injured Sahasram

was admitted in the Tumsar Hospital till 30.05.2001 and was

referred to General Hospital at Bhandara for further treatment.

13] The evidence on record is cogent enough to satisfy

the conscious of the court that it was the accused who came to the

house of the injured Sahasram armed with a bottle containing

sulphuric acid and poured the acid on the injured Sahasram.

The learned counsel for the accused is right in contending that

there was a scuffle and during the scuffle the acid splashed

injuring not only with the accused but also Ujwala, Ramkrushna

and Pawan. The evidence clearly points to scuffle. However, in the

teeth of the evidence on record, the finding recorded by the

learned Sessions Judge that it was the accused who came in the

court-yard of the house of the injured Sahasram and splashed acid

on the person of the injured Sahasram is unexceptionable.

14] However, I am not in a position to concur with the

Sessions Judge that the prosecution has proved the offence

punishable under section 307 of the IPC. Neither the quantity and

nor the concentration of the sulphuric acid is clear from the

evidence. The incident is blurred in as much as it cannot be said

with certainty that the accused intended to cause death or that the

accused can be attributed the knowledge that death is likely to be

caused due to the use of acid in the assault. The intention was

certainly to injure Sahasram. However, for reasons known only to

the prosecution, the treatment given to the injured Sahasram after

he was discharged from the Government Hospital, Tumsar within

2 day of the incident is not brought on record. Dr. Patil states that

the injured Sahasram was referred to General Hospital, Bhandara

for further treatment while the injured Sahasram states that

instead of General Hospital, Bhandara he was admitted to

Government Hospital, Nagpur and was hospitalized there for 10

days. Nothing is placed on record to throw light on the treatment

given to injured Sahasram at the Government Hospital, Nagpur.

Neither the bed ticket or other medical papers nor the discharge

card is produced on record. The deposition of P.W.2 injured

Sahasram is that since a vein was cut, and the suggestion is that

the vein was cut either accidentally or due to negligence, he was

admitted to the Private Hospital of Dr. Anjankar. The said Doctor

is not examined. No medical papers are placed on record to show

why and under which circumstances was the injured Sahasram

admitted, if at all, to the said Private Hospital. P.W.3 Ujwala does

speak of P.W.2 Sahasram having been admitted at the

Government Hospital, Nagpur for 15 days and then P.W.2 having

been shifted to the Private Hospital for further treatment.

However, even if the evidence that P.W.2 was shifted to the

Private Hospital is accepted at face value, P.W.2 Sahasram has

deposed that the reason why he was shifted to the Private Hospital

was that during the treatment at the Government Hospital,

Nagpur one of the vein was cut and which necessitated an

operation to rejoin the vein. The evidence of P.W.2 that the left

ear has practically "dropped of" or dismembered or is not

consistent with the injury certificate Exh.52 and as noted supra,

the prosecution has for reasons inexplicable failed to adduce any

evidence to throw light on the medical condition of, and the

treatment received by the injured Sahasram after he was

discharged from the Government Hospital, Tumsar on

30.05.2001.

15] Having given anxious consideration to the evidence

on record, I am of the opinion that the prosecution has proved

offence punishable under section 324 of the IPC. I am not in a

position to record a finding that the injury suffered by P.W.2

Sahasram is a grievous injury within the meaning of section 320

of the IPC. I would set aside the conviction of the accused under

section 307 of the IPC and instead would convict the accused

under section 324 of the IPC.

16] In so far as the sentence to be awarded, the accused

deserves no leniency. Indeed, the use of sulphuric acid which has

the potential of causing untold pain, misery, emotional trauma

and disfigurement which the accused as a Chemist knew only too

well, ipso facto disentitles the accused to any leniency in awarding

punishment. I therefore, sentence the accused to suffer rigorous

imprisonment for three years and to payment of fine of

Rs.50,000/-.

17] The conviction of the accused under section 307 of

the IPC is set aside and instead the accused Prakash Mohture is

convicted for offence punishable under section 324 of the IPC and

is sentenced to suffer rigorous imprisonment for a period of three

years and to payment of fine of Rs.50,000/- or in default to suffer

rigorous imprisonment for further period of six months. If the fine

is recovered, the same shall be paid to the injured Sahasram as

compensation.

18] The bail bond of the accused shall stand cancelled.

The accused shall be taken into custody to serve the remainder

period of the sentence. The Superintendent of Police, Bhandara 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.

19] The appeal is partly allowed and disposed of in the

above terms.

JUDGE

NSN