Rintu @ Rituraj S/O Mohan Aamde And ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 4 Bom

                                                                        APEAL.104.15
                                           1

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


                            CRIMINAL APPEAL NO. 104 OF 2015

     1] Rintu @ Rituraj s/o Mohan
        Aamde, aged about 21 years,
        Occ. Student and Labour,

     2] Mohan s/o Bisan Aamde,
        aged about 50 years, Occ. 
        Agriculturist and Labour,

           Both Residents of village Kurbadi,
           P.S. Goregaon, Tahsil Goregaon,
           Distt. Gondia (Mah.), at present
           in custody in Central Jail, Nagpur.        ....           APPELLANTS.

                  // VERSUS //

     The State of Maharashtra, 
     through its Police Station
     Officer, Police Station 
     Goregaon, District - Gondia (Mah.)               ....           RESPONDENT.


     Mr. E.W. Nawab, Advocate for the appellants,
     Mr. V.P. Maldhure, Additional Public Prosecutor for respondent.


                           CORAM :  B.R. GAVAI & KUM. INDIRA JAIN, JJ.     
                            DATED  :  FEBRUARY 27, 2017.


     JUDGMENT (PER B.R. GAVAI, J.)

1] Being aggrieved by the judgment and order passed by the

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learned Additional Sessions Judge, Gondia dated 25.10.2013 in

Special Criminal Case (Atro) No. 1/11, thereby convicting the

appellants for the offences punishable under Section 302 read with

Section 34 of the Indian Penal Code and sentencing them to suffer

rigorous imprisonment for life and to pay a fine of Rs.1,000/- each

and in default, to suffer further R.I. for a period of three months and

also convicting the appellants for the offences punishable under

Section 435 read with Section 34 of the Indian Penal Code and

sentencing them to suffer rigorous imprisonment for three years and

to pay a fine of Rs.500/- each and in default, to suffer further R.I. for a

period of one month, the appellants have approached this Court.

2] The prosecution story, in nutshell, as could be gathered

from the material placed on record is thus :-

The deceased Debraj was residing with his parents at

Saitola. The land bearing Gat N. 415 was leased out to the accused

for the purpose of cultivation on Batai basis. It is the case of the

prosecution that the accused without intimating the deceased

removed the paddy crop from the field and took it to their house.

When the deceased came to know about this, the deceased on his

motor cycle bearing No. MH-35/J-5661 came in front of the house of

the accused on 22.11.2010 in between 6.30 to 7 p.m. He was

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standing near the motor cycle. The accused picked up a quarrel with

the deceased for the reason of paddy crop and assaulted the

deceased by the stick, i.e. ubhari and caused serious injury to the

deceased. The accused thereafter brought paddy straw from the

courtyard and put it on the deceased and motor cycle and set ablaze.

The deceased was seriously injured. He was taken to KTS hospital,

Gondia where he died. The First Information Report came to be

lodged by PW.2 Bholaram, the uncle of the deceased. On the basis

of the said oral report, First Information Report came to be registered

vide Exh. 12 initially for the offence punishable under Section 307

read with Section 34 of the Indian Penal Code. After the death of the

deceased, the same came to be converted for the offence punishable

under Section 302 of the Indian Penal Code.

3] On the basis of the FIR, investigation was set into motion.

At the conclusion of investigation, a charge-sheet came to be filed

against the accused for the offences punishable under Sections 302,

307, 435 read with Section 34 of the Indian Penal Code and also for

the offence punishable under Section 3(2)(v) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the Court

of learned J.M.F.C., Gondia. However, since the case was

exclusively triable by the Court of Sessions, the same came to be

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committed to the Court of the learned Sessions Judge, Gondia. The

learned trial Judge framed the Charges for the offences punishable

under Sections 302 and 435 read with Section 34 of the Indian Penal

Code and also for the offence punishable under Section 3(2)(v) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 below Exh. 5. The accused pleaded "not guilty" and

claimed to be tried. At the conclusion of the trial, the learned trial

Judge acquitted the accused for the offence punishable under

Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989; however passed the order of

conviction and sentence against the appellants, as aforesaid. Being

aggrieved thereby, the present appeal has been filed.

4] Shri E.W. Nawab, the learned Counsel appearing on

behalf of the appellants, submits that the learned trial Court has

grossly erred in convicting the appellants. He submits that the

alleged eye-witnesses cannot be eye-witnesses. He submits that

their statements are recorded after 3-4 days only in order to implicate

the present appellants.

5] The learned A.P.P., on the contrary, submits that the

conviction is awarded on the basis of testimony of three eye-

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witnesses and as such, no interference is warranted.

6] With the assistance of the learned A.P.P. as well as the

learned Counsel for the appellants, we have scrutinized the entire

evidence on record.

7] The prosecution case mainly rests on the evidence of

PW.3 Dhruvraj, PW.7 Babulal and PW.8 Omprakash. PW.3 Dhruvraj

in his statement stated that his house is situated behind the house of

the accused. He saw that the accused No.2 Mohan took out Ubhari

of bullock-cart and assaulted the deceased Debraj by Ubhari. He

gave number of forcible blows of Ubhari to the deceased on his head,

back and every part of body. When the deceased Debraj fell down,

the accused Mohan caused damage to the motor cycle of Debraj by

Ubhari. Thereafter, accused Mohan spread paddy straw over the

motor cycle and body of Debraj and set fire to it. Due to fear, he did

not go near them. When the deceased Debraj tried to move, the

accused Mohan again turned down the bullock-cart on him.

Thereafter, the accused No.1 Rituraj came there. He also gave kick

blows to the deceased Debraj. The perusal of the testimony of this

witness would reveal that there are many omissions and

contradictions in his testimony. However, in so far as the deceased

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being assaulted by the accused Mohan and setting the motor-cycle

on fire is concerned, his testimony has remained unshaken.

8] PW.7 Babulal is another neighbour of the accused. He

states that on the day of the incident at around 6.30 to 7 p.m. when

he had come back from the market, he saw that the accused Mohan

and deceased Debraj were sitting on a bench in front of the house of

accused. He states that thereafter he entered in his house and after

sometime he came out upon hearing the shouts. At that time, he saw

that accused Mohan was assaulting Debraj by stick. When Debraj fell

down, the accused Mohan put motor-cycle on Debraj and he also put

paddy straw on Debraj and set in on fire. He further states that the

accused Mohan also uttered that nobody should come to the spot

otherwise he would kill that person. Thereafter the accused Mohan

turned down the bullock-cart on Debraj and again put the paddy straw

and again set it on fire. Thereafter, the accused Rituraj came there

and he pulled out Debraj by holding his legs. The testimony of this

witness would also show that there are material contradictions and

omissions and he has improved the version than the one given in his

police statement.

9] PW.8 Omprakash Sakhare states that on the day of the

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incident, he had been to the grocery shop of PW.7 Babulal. Debraj

was on motor-cycle. Accused Mohan was having one stick in his

hand and he was moving the stick. First he gave blow of stick to the

motor-cycle and thereafter he assaulted Debraj by stick. Debraj fell

down with motor-cycle. Accused Mohan assaulted Debraj while he

was lying on the ground. Debraj fell unconscious. Thereafter

accused Mohan brought paddy straw from his house and put on

Debraj. Thereafter again he brought paddy straw from his house and

put it on motor-cycle and he first set fire on motor-cycle and then he

set fire on Debraj. Deceased Debraj tried to stand but accused

Mohan turned down bullock-cart on his person. Accused Rituraj also

assaulted by fist and kick blows. His evidence would also show that

there are material contradictions and omissions. However, the

perusal of the evidence of PW.3 Dhruvraj and PW.7 Babulal would

clearly show that the role of assault is attributed only to accused

Mohan. The perusal of evidence of this witness would itself show that

the accused Rituraj had arrived at the spot after the accused Mohan

had assaulted the deceased and set him on fire. We, therefore, find

that the conviction of the accused Rituraj is not at all sustainable.

10] In so far as accused Mohan is concerned, no doubt that all

the three witnesses stated that the accused Mohan brutally assaulted

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the deceased and also put up the bullock-cart on his person and set

him and the motor-cycle on fire. The versions given by the three

witnesses are inconsistent. The version regarding putting up the

bullock-cart on the person of the deceased is totally by way of an

improvement. In any case, same is not corroborated by medical

testimony. The deceased has sustained the following external

injuries :-

(1) Sutured wound on left supra orbital region, size 4 x 1 cm, (2) Abrasion right side forehead, size 3 x 2 cm. (3) Abrasion cheek, size 4 x 3 cm.

(4) Abrasion left cheek, size 5 x 3 cm. (5) Abrasion right zygomatic region, size 2 x 2 cm. (6) Contusion on right scapular and infrash scapular region, size 12 x 10 cm.

The doctor also found deep burns on left upper limb, left side chest, left mammary region, right upper limb, left scapular region, total area of burns was around 16 percent.

On internal examination, the doctor found the following injuries :-

(1) Fracture of ribs No. 4 to 8 on posterior parts, (2) There was about 2 and ½ lts. blood noted in thoracic cavity, (3) Lacerated wound on right lung on posterior aspect of middle and lower lobe measuring 3 x 2 and 4 x 2 cm. respectively. (4) Contusion left lung, size 6 x 6 cm. in lower lobe, (5) 2 lts. of blood in peritoneal cavity,

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(6) Lacerated wound on lateral surface of liver, size 8 x 3 cm., (7) Right kidney was crushed.

11] We find that if the version of the prosecution witnesses

that the accused Mohan had turned down the bullock-cart on the

person of the deceased is to be believed, then there ought to have

been much more serious injuries. However, the principle that 'Falsus

in uno, falsus in omnibus' is not applicable in the Indian Criminal

Jurisprudence. We will have, therefore, to separate the chaff from the

grain. We find that though the version of the witnesses that the

accused Mohan assaulted the deceased with stick and thereafter set

him on fire is found to be trustworthy, at the same time, we find that

all the witnesses have exaggerated the story.

12] We further find that from the material placed on record and

particularly the evidence of PW.7 Babulal that when he came to his

house, he saw that the deceased and the accused Mohan were

sitting together and talking to each other, the possibility of a sudden

quarrel on the issue of Batai taking place between the accused

Mohan and the deceased and in a heat of passion the accused

Mohan assaulting the deceased with stick which was readily

available and thereafter setting him and the motor-cycle on fire

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cannot be ruled out. PW.4 Dr. Ajay Ghormare has himself admitted

in his cross-examination that 16% burn injury is not sufficient for

causing death of the person. Taking into consideration the weapon

used and the nature of injuries, we find that the prosecution has failed

to prove that the accused Mohan had an intention to cause the death

of the deceased. We are of the considered view that the accused

Mohan is entitled to benefit of doubt.

13] In the result, the Criminal Appeal is partly allowed.

The order of conviction insofar as appellant No.1 Rintu @

Rituraj s/o Mohan Aamde is concerned, the same is set aside. He is

acquitted of the charges charged with.

Bail bonds of appellant no.1 Rituraj Aamde shall stand

discharged. Fine amount, if any, paid by appellant no.1 Rituraj shall

be refunded to him.

Insofar as appellant no.2 Mohan s/o Bisan Aamde is

concerned, his conviction under Section 302 of the Indian Penal Code

is altered to one under Part II of Section 304 of the Indian Penal

Code. For the said offence, appellant no.2 Mohan is sentenced to

suffer rigorous imprisonment for six years.

Appellant no.2 Mohan has already undergone R.I. for more

than six years since he was taken in the custody on 24.11.2010. He

APEAL.104.15

is, therefore, directed to be set at liberty forthwith, if not required in

any other case. Rest of the order with regard to fine insofar as

appellant no.2 Mohan is concerned, is maintained.

JUDGE JUDGE .

J.