The State Of Maharasthra vs Netaji Ramkrishna Thodsare
2017 Latest Caselaw 4226 Bom

                                                              Cri. Appeal No. 49/2000
                                             1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 49 OF 2000

State of Maharashtra
through Sitabai Chander Taware,
R/o. Dhoki, Tq. & Dist. Osmanabad.                   ....Appellant.
                                                     (Ori. Complainant)

          Versus

Netaji Ramkrishna Thodsare,
Age 25 years, R/o. Thodsarwadi,
At present Terna Nagar, Dhoki,
Tq. & Dist. Osmanabad.                               ....Respondent.
                                                     (Ori. Accused)


Mr. A.A. Jagatkar, APP for appellant/State.
Mr. Satej S. Jadhav, Advocate for respondent.


                                   CORAM     :    T.V. NALAWADE AND
                                                  SUNIL K. KOTWAL, JJ.

                                   DATED :        JULY 10, 2017.

JUDGMENT : [PER T.V. NALAWADE, J.]

.                 The appeal is filed by the State to challenge the

judgment          and      order   of   learned    Sessions    Judge,      Osmanabad

delivered in Sessions Case no. 31/1997. The respondent/accused

was chargesheeted for the offences punishable under sections 307,

323 and 504 of Indian Penal Code ('IPC' for short). He is convicted

and sentenced for the offence punishable under section 324 of IPC.

The sentence of rigorous imprisonment for 21 days and fine of

Rs.3000/- is imposed by the learned Sessions Judge. Out of the fine

Cri. Appeal No. 49/2000

amount, amount of Rs.2500/- is to be paid to the injured witness

Sitabai. As conviction is not given for the offence punishable under

section 307 of IPC, the decision is challenged. Both the sides are

heard.

2) Both the original complainant and the respondent/

accused hail from Terna Nagar, Tahsil Dhoki, District Osmanabad.

The houses of these two persons are situated in the same lane, but

at some distance from each other. Complainant - Sitabai used to

reside with her married daughter Mangalbai, who is deserted by her

husband. Mangalbai has two sons and one daughter and they also

live with Sitabai. Sitabai has a grocery shop and this shop was being

run by Mangalbai and her son Satyvijay.

3) The incident took place on 29.9.1995 in the noon time.

When Sitabai heard noise of quarrel coming from the shop, she went

there. Mangalbai disclosed that the accused was demanding grocery

articles on credit basis and when she refused to give the articles on

credit basis, he picked up quarrel and he was giving abuses to her.

The accused then already left the spot. Sitabai then went to the

house of parents of the accused to make complaint against him. The

age of the accused was below 25 years at the relevant time. She

reported the incident to the parents of the accused. When she was

Cri. Appeal No. 49/2000

returning home, the accused intercepted her on the way and

questioned her as to why she had reported the incident to his

parents. Then all of a sudden, he took out a knife and gave blow on

the abdomen of Sitabai. She sustained bleeding injury and she

shouted for help. Satyavijay, grandson of Sitabai, rushed there and

Kisan, brother of Sitabai, also rushed there. The accused inflicted

injuries on them also. Sitabai was then shifted to Government

Hospital, Osmanabad. One operation was performed on her in the

hospital and report came to be recorded in the hospital. On the basis

of this report, the crime came to be registered for aforesaid offences

against the accused.

4) During the course of investigation, police prepared spot

panchanama and recorded statements of witnesses, who include

Kisan and Satyavijay. The panchanama of the spot of offence was

prepared. The accused came to be arrested. When arrest

panchanama was prepared, the weapon, knife came to be recovered

from his person. The clothes of the accused were taken over under

separate panchanama and clothes of the injured Sitabai were also

taken over as there were blood stains on the clothes. After

completion of investigation, chargesheet came to be filed for

aforesaid offences. After committal of the case, the learned Sessions

Judge framed charge for aforesaid offences to which the accused

Cri. Appeal No. 49/2000

pleaded not guilty.

5) For proving the offences, prosecution examined in all 12

witnesses. The main witness of the prosecution is Sitabai. She has

given evidence as per the contents of F.I.R. and she has stated in

evidence that she had witnessed the incident in which abuses were

given to Mangalbai by the accused. She has given evidence that she

had then visited the house of the accused to make complaint to his

parents and when she was returning home, in front of one hotel, the

accused intercepted her and all of a sudden, gave blow of knife on

left side of her abdomen and she sustained bleeding injury. She has

given evidence that in her presence Satyavijay and Kisan were

assaulted by using knife. The oral evidence shows that the accused

had aimed and had given one blow to Sitabai and on that point, the

evidence is consistent with F.I.R. which is at Exh. 12. As the

prosecution wants conviction for offence punishable under section

307 of IPC, it needs to be ascertained from the evidence of Sitabai

and other evidence as to whether there were ingredients of murder

as an attempt of murder is required to be proved.

6) There is evidence of Sitabai and Mangalbai on the act of

the accused of giving blow of knife to Sitabai. Other two witnesses

like Kisan and Satyavijay have also tried to say that they witnessed

Cri. Appeal No. 49/2000

the incident. In F.I.R., it is not mentioned that Satyavijay and Kisan

were present in the vicinity to witness the incident and so, the

evidence of Sitabai needs to be considered separately to ascertain

the intention of the accused.

7) The evidence of Sitabai in cross examination shows that

on no previous occasion, the accused had come to their shop to

purchase grocery or to demand grocery on credit basis. The

evidence of Sitabai shows that the incident of assault took place in

front of shop of Deshmukh, though she had disclosed in F.I.R. that

the assault was made in front of one hotel. It can be said that many

persons must have gathered there. It was noon time and there is

possibility that the owner of hotel or shop had witnessed the

incident, but those independent witnesses are not examined by the

prosecution.

8) From the nature of evidence of Sitabai and Mangalbai, it

can be said that the reason for the quarrel given by them does not

appear to be probable in nature. Due to absence of evidence of

independent witnesses, a probability is created that there was other

reason for the quarrel or the incident and the incident did not take

place in the manner in which it is described. Only one blow of knife

was given. The evidence of doctor and injury certificate show that

Cri. Appeal No. 49/2000

the injury was having 1.5 c.m. length, it was in lumbar region and it

was entering peritoneum. Laparotomy was done on the same day

due to nature of injury. The evidence is not given to show that

accused wanted to inflict the blow on abdomen or he had intention

to inflict more blows. The accused had questioned Sitabai as to why

she had reported the incident to his parents. The evidence of the

other witnesses show that they were only trying to snatch the

weapon from the hands of the accused when they rushed to the

spot. Due to that, Kisan sustained injury to his right middle finger,

first phalanx palmar aspect and right ring finger, second phalanx

palmar aspect. Satyavijay also sustained injury to left forearm and

forearm middle showing that there was only attempt to snatch the

knife and in that attempt, they sustained injuries. The sites of the

injuries sustained by these witnesses show that there was no

intention of the accused to assault these two relatives of Sitabai.

9) Medical Officer Dr. Kavita (PW 3) has given evidence that

the injury could have resulted in death if Sitabai was not treated in

time. The injury is described as grievous. Though these things are

there, due to the nature of incident and aforesaid circumstances, it

is difficult to believe that the accused had intention to cause the

injury sustained and at the site. Inference is easy that he wanted to

teach only lesson to Sitabai and there was no intention to finish her.

Cri. Appeal No. 49/2000

Thus, the intention of murder or intention to cause injury of

aforesaid nature cannot be gathered from the aforesaid evidence.

The accused was hardly 25 years of the age at the relevant time.

10) The evidence of Investigating Officer shows that the

accused came to be arrested on 30.9.1995, next day of the incident

and only during arrest panchanama, the knife was shown to be

recovered from his person. The length of the knife is shown as 21

c.m. and the blade was having length of nine and half c.m. There are

no bad antecedents of the accused.

11) The aforesaid nature of evidence and particularly, the

reason behind the incident show that there is possibility that there

was no intention to cause such injury which would be sufficient to

cause death in ordinary course of nature and there was no intention

to finish Sitabai. In view of the age of the respondent/accused and

aforesaid circumstances, this Court holds that nothing wrong can be

found in the view taken by the learned Sessions Judge that the act

amounts to offence punishable under section 324 of IPC. Though the

injury is described as grievous in nature by the doctor, considering

the nature of injury and the period for which Sitabai was bed ridden,

it is not possible to interfere in that view also. This Court sees no

reason to interfere in the decision given by the learned Sessions

Cri. Appeal No. 49/2000

Judge. In the result, the appeal stands dismissed.

       [SUNIL K. KOTWAL, J.]           [T.V. NALAWADE, J.]



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