Arjun Malhari Paikrao vs The State Of Mah.Thr.Its Pso.Akot ...
2017 Latest Caselaw 2511 Bom

apeal.161.02.jud                          1


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

                    CRIMINAL APPEAL NO.161 OF 2002


Arjun Malhari Paikrao,
Aged about 56 years,
R/o Railway Quarter, Akot File, Akola.                               .... Appellant

       -- Versus -

The State of Maharashtra,
through its P.S.O. Akot File,
District Akola.                                                   .... Respondent


Shri Anil S. Mardikar, Senior Advocate for the Appellant.
Shri N.B. Jawade, Additional Public Prosecutor for the Respondent/State.


                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : MAY 12, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 14/03/2002, passed by the learned Sessions Judge,

Akola in Sessions Trial No.29/2001. By the said judgment and

order, accused no.1 - Arjun Malhari Paikrao was convicted of the

offence punishable under Section 304-II of the Indian Penal Code

and sentenced to suffer rigorous imprisonment for five years and

to pay fine of Rs.1,000/-, in default to undergo rigorous

imprisonment for one month.

02] For the sake of convenience, appellant shall be

referred in his original status as accused no.1, as he was referred

before the Trial Court.

03] Prosecution case, which can be revealed from the

charge-sheet and connecting papers thereto, may be stated in

brief as under :

i. Initially four accused persons were tried for the

offences punishable under Sections 302 and 324 read

with Section 34 of the Indian Penal Code. Accused

nos.3 and 4 were also facing the charge for the

offence under Section 337 read with Section 34 of the

Indian Penal Code. Accused No.2 was also

chargesheeted for the offence punishable under

Section 294 of the Indian Penal Code. On conclusion

of trial, accused no.1 came to be convicted of the

offence under Section 304-II of the Indian Penal Code.

Accused nos. 2 to 4 were convicted for the offence

punishable under Section 324 read with Section 34 of

the Indian Penal Code, but instead of sentencing them

at once, benefit of provisions of Section 4 of the

Probation of Offenders Act was given to them and

they were released on bond of good behaviour.

Accused no.2 came to be acquitted of the offence

punishable under Section 294 of the Indian Penal

Code. So also accused nos.3 and 4 were acquitted of

the offence punishable under Section 337 read with

Section 34 of the Indian Penal Code.

ii. In this background, accused no.1 being aggrieved

with the order of conviction under Section 304-II of

the Indian Penal Code has preferred this appeal.

iii. According to prosecution, accused were residing in

Railway Quarter situated in the campus of Railway

Quarter, Akola. Amarlinga Swami was father of

complainant Anandkumar. He was a retired police

personnel and occupying the Railway Quarter.

Accused were also residing intervening one quarter

from the quarter of complainant. Accused no.1 is the

husband of accused no.2 and accused nos.3 and 4 are

sons-in-law of accused nos.1 and 2.

iv. Incident took place on 26/10/2000. It was a

Laxmipujan day. Complainant was sitting in the

courtyard of his house and his daughter was bursting

firecrackers. Accidentally one partly burnt firecracker

went towards the house of the accused. That time,

accused no.2 Sojarbai got annoyed and abused the

complainant.

v. When accused no.2 was hurling abuses, complainant

and his family members and family members of

accused no.2 came out of their respective quarters.

There was a quarrel between accused no.2 and

Pushpanjali [PW-2], wife of the deceased and mother

of the complainant. Amarlinga Swami tried to

intervene in the quarrel. It is alleged that accused

no.1 gave a blow of iron bar on the head of Amarlinga

Swami. Santosh, a boy of 16 year old, caught hold

Amarlinga Swami and accused no.1 delivered the

blow. Complainant rushed to save his father and that

time Santosh delivered blow of iron bar on the head of

the complainant. Accused nos.3 and 4 also beat the

complainant and his family members. Complainant

and his mother sustained injuries. Amarlinga Swami

also received injuries and he asked his son

Anandkumar to rush to police station to call police.

vi. It is the case of prosecution that in the incident,

accused dragged Amarlinga Swami and Pushpanjali

towards their quarter and both were assaulted by fist

and kick blows. They also pelted bricks on the

complainant and his family members.

vii. At around 09:50 p.m., Anandkumar reached Akot File

Police Station at Akola and informed about the

incident. A.P.I. Namdeo Manwar [PW-8] took an entry

in the Station Diary and rushed to the place of

occurrence with the complainant. Amarlinga Swami

was lying in the courtyard and he was shifted to Main

Hospital, Akola. The Medical Officer on duty declared

Amarlinga Swami as dead.

viii. Thereafter, complainant and A.P.I. Manwar came to

police station. Anandkumar lodged report. On the

basis of report, Crime No.144/2000 was registered

against the accused. Inquest-panchnama was drawn.

On 27/10/2000, in the presence of panch-witnesses,

dead body was sent for postmortem. Dr. Ranjit

Deshmukh, Medical Officer attached to Main Hospital,

performed postmortem, preserved viscera and

reserved his opinion regarding cause of death. A.P.I.

Manwar took over further investigation. He visited

the place of occurrence and recorded spot-

panchnama. One iron bar and few pieces of brick

lying on the spot were seized. Accused persons were

arrested. During search of house of accused no.1,

another iron bar lying near a tree near the house of

accused no.1 was seized. Complainant and his

mother were referred to the hospital as they also

received injuries. Statements of eye-witnesses were

recorded. Seized muddemal was forwarded to the

Chemical Analyzer. On completing investigation,

charge-sheet was submitted to the Court of Chief

Judicial Magistrate, Akola, who in turn committed the

case for trial to the Court of Sessions.

04] On committal, charge was framed against the

accused vide Exh.17. They pleaded not guilty and claimed to be

tried. Their defence was of total denial and false implication.

Accused raised a specific defence that in the quarrel, there was

pelting of bricks from both the sides and few bricks hit Amarlinga

Swami and two prosecution witnesses. They submitted that

counter report was lodged by accused no.2. In the incident, all

the accused received injuries. Their injury certificates were

placed on record. According to the accused, they were not at

fault as complainant and his father were the aggressors.

05] To substantiate the alleged guilt of accused,

prosecution examined in all nine witnesses. Considering the

evidence of prosecution witnesses and submissions made on

behalf of the parties, Trial Court convicted accused no.1 of the

offence punishable under Section 304-II of the Indian Penal Code

and rest of the accused as stated above in paragraph no.1.

Being dissatisfied with the judgment and order of conviction,

accused no.1 has preferred the present appeal.

06] Heard Shri Anil Mardikar, learned Senior Counsel for

the appellant and Shri N.B. Jawade, learned Additional Public

Prosecutor for the respondent/State. Learned Senior Counsel for

the appellant submitted that -

(i) Independent witnesses named in F.I.R. were not

examined by the prosecution.

(ii) PW-5 Kishore Borkar is a got up witness and his name

does not appear in F.I.R.

(iii) PW-1 and PW-2 are the injured and PW-3 is the highly

interested witness being wife of complainant and

daughter-in-law of PW-2.

(iv) There was a counter report lodged by accused no.2

and both the cases ought to have been tried together

by the Trial Court.

(v) Separate trial has caused serious prejudice to the

accused and the prosecution case is vitiated, as case

on counter report was not tried together.

(vi) Medical evidence is too short to indicate the factum of

death as homicidal death, as Medical Officer has not

given definite opinion at the time of conducting

postmortem or after receiving viscera report.

(vii) Spot-panchnama does not indicate any incriminating

circumstance pointing out the occurrence of incident

as alleged by the prosecution witnesses.

(viii) Injuries on the person of accused persons though

admitted by the Investigating Officer, not explained

by the prosecution witnesses and prosecution

witnesses are blissfully silent on the injuries to the

accused persons.

07] Based on the above submissions, the learned Senior

Counsel stated that even offence under Section 304-II of the

Indian Penal Code is not made out against accused no.1 and

judgment and order of conviction passed by the Trial Court needs

an interference in this appeal.

08] Per contra, learned Additional Public Prosecutor

strenuously submitted that evidence of PW-1 and PW-2, injured

persons, PW-3 wife of complainant and PW-5 independent

witness Kishore clearly establishes that accused assaulted the

deceased and on the basis of the ocular version of the witnesses

and particularly injured persons, Trial Court has rightly convicted

accused no.1.

09] With the assistance of the learned Counsel for the

parties, this Court has meticulously evaluated the evidence of

prosecution witnesses. PW-1 Anandkumar, PW-2 Pushpanjali,

PW-3 Satyawati and PW-5 Kishore are the star witnesses for

prosecution. Before adverting to their evidence, few facts which

are not seriously disputed are required to be considered. PW-8

A.P.I. Manwar is the Investigating Officer. He admitted in cross-

examination that on 26/10/2000 at 22:10 hours, accused no.2

lodged report with the police station against the prosecution

witnesses PW-1 and PW-2. He also admits that accused received

injuries and charge-sheet was filed against the prosecution

witnesses on the report of accused no.2. He admits F.I.R.

[Exh.68] lodged by accused no.2. Report lodged by accused

no.2 indicates that it was in first point of time as the same was

lodged at 22:10 hours, whereas report lodged by PW-1

complainant Anandkumar was at 22:40 hours. Though counter

reports and the facts elicited in the cross-examination indicate

that charge-sheets were filed on the basis of both the reports,

cases were tried separately. As a matter of procedure and for

the just and fair trial, it was incumbent on the Trial Court to call

the record of counter case and try both the cases together in

order to avoid any prejudice being caused to the parties

concerned. It is apparent that proper procedure was not

followed and cases were tried separately.

10] So far as merits of the case are concerned, it can be

seen from the evidence of PW-1 Anandkumar and PW-2

Pushpanjali that they are blissfully silent on the injuries received

by the accused in the same incident. Prosecution did not explain

the injuries on the person of accused. In this connection, learned

Senior Counsel for the appellant vehemently placed reliance on

the decision of the Hon'ble Supreme Court in Lakshmi Singh

and others vs. State of Bihar - [(1976) 4 SCC 394]. The

ratio laid down by the Hon'ble Supreme Court in the case of

Lakshmi Singh still holds the field and failure of prosecution to

explain the injuries caused to accused, would create serious

doubt regarding reliability of the evidence of prosecution

witnesses.

11] It is significant to note that copies of injury certificates

of the accused have been placed on record. Investigating Officer

does not dispute that accused received injuries and they were

referred to the hospital. In this situation, absence of explanation

to the injuries received by the accused would affect the

substratum of prosecution case.

12] Prosecution has relied upon the evidence of PW-4

Noorkhan, a panch-witness on spot-panchnama [Exh.37].

Initially, he was declared hostile and it is only after cross-

examination, he supported panchnama. On careful reading of

spot-panchnama, it is clear that no incriminating circumstance

was noticed on the spot on 27/10/2000 in the morning when PW-

8 A.P.I. Manwar visited the place of occurrence and recorded

panchnama.

13] This takes the Court to the ocular evidence of PW-1

Anandkumar, PW-2 Pushpanjali, PW-3 Satyawati and PW-5

Kishore. According to Anandkumar, on 26/10/2000 at 09:30

p.m., he was present in front of his house and his two daughters

were bursting firecrackers. His evidence shows that one partly

burnt firecracker flew and fell in the courtyard of accused no.1.

He then states that cracker fell on the main road in front of the

house of accused no.1. He states that accused no.2 then abused

him and asked why were they bursting crackers there. Accused

nos.1 and 2 also came out of their house. Accused nos.3 and 4

joined them. Santosh, a boy of 16 year old, then delivered a

blow of iron rod on the head of Anandkumar and he sustained

bleeding injury. PW-3 Satyawati, who was standing in front of

door of house of the complainant, raised hue and cry. That time,

father and mother of complainant also came out of the house.

It is further stated by Anandkumar that his father and

mother attempted to separate the accused persons. Accused

nos.1 to 4 assaulted his father with fist and kick blows. Accused

no.2 threw a brick at Anandkumar and the brick hit his face. He

sustained bleeding injury due to pelting of piece of brick. He

states that in the incident, Santosh caught hold his father by his

waist and head, and accused no. 1 gave a blow of iron bar on the

head of his father. His father collapsed on the ground.

Thereafter, he called police. Accused nos.2 to 4 pushed his

mother and caught hold her hair. They made her to fall on the

ground and assaulted her with fist and kick blows. Accused

nos.3 and 4 beat his father with fist and kick blows. Then

Anandkumar went to police station and lodged report.

14] He identifies iron rod [Article-1] used against him and

another iron rod [Article-10] used to assault his father. In the

cross-examination, complainant admits that counter report was

lodged by accused no.2 against them. He admits that his father

was lying near the pole of electricity situated in front of the

house of accused and from there he was shifted to the courtyard

of his house by the members of his family. This evidence is

contradictory to F.I.R. and spot-panchnama. As shown in F.I.R.

and spot-panchnama, place of incident is the courtyard of the

house of complainant and not the pole of electricity situated in

front of the house of the accused. Regarding the role attributed

to accused nos.3 and 4, he admits that there is no whisper in

F.I.R. [Exh.29] that accused nos.3 and 4 used physical force

against his mother and they caught hold her hair and made her

to fall on the ground.

15] The evidence of PW-2 Pushpanjali and PW-3 Satyawati

is on the same line. Prosecution examined PW-5 Kishore as an

independent eye-witness. It is pertinent to note that in oral

report [Exh.29], complainant named Jairaj, Prakash Kamble and

Dawane as eye-witnesses to the incident. None of the persons

named as eye-witnesses in F.I.R. came to be examined by the

prosecution. In the cross-examination, PW-5 Kishore admitted

that complainant Anandkumar is his friend. All are highly

interested witnesses. Their evidence is silent on injuries received

by the accused. It means somewhere something has been

suppressed. In this background, it would be highly unsafe to

base conviction on the evidence of injured and interested

witnesses.

16] Regarding factum of homicidal death, though Trial

Court has recorded finding in the affirmative, evidence of PW-7

Dr. Ranjit Deshmukh indicates that he has not given any opinion

regarding cause of death at the time of performing postmortem.

He reserved the opinion till viscera report is received. C.A.

Report was received. It appears that same was not referred to

the Medical Officer for definite opinion regarding cause of death.

It is stated by Dr. Deshmukh that if no poison was detected in

viscera, then he could say death took place due to head injury.

Column No.17 of postmortem report shows two injuries received

by the victim (i) swelling over occipit and (ii) abrasion over left

shoulder. According to Doctor, these injuries were caused by

hard and blunt object. The rods with which injuries were caused,

according to the prosecution witnesses, were not referred to the

Medical Officer during the course of investigation. It is only at the

time of evidence, the rods were shown to the Medical Officer for

the first time. On going through the evidence of Medical Officer

and particularly in the absence of definite opinion regarding

cause of death, it is difficult to hold that factum of homicidal

death has been duly established by the prosecution.

17] In the above premise and considering the serious

infirmities left by the prosecution, this Court finds that judgment

and order of conviction of accused no.1 for the offence under

Section 304-II of the Indian Penal Code is unsustainable in law.

Appellant-accused no.1 deserves acquittal, as the prosecution

has failed to bring home the guilt of accused no.1 beyond all

reasonable doubt. Hence, the following order :

ORDER

[i] Criminal Appeal No.161/2002 is allowed.

[ii] Impugned judgment and order of conviction dated 14/03/2002 passed by the Sessions Judge, Akola is quashed and set aside.

[iii] Appellant-Arjun Malhari Paikrao is acquitted of the offence punishable under Section 304-II of the Indian Penal Code.

[iv] His bail bonds shall stand cancelled.

[v] Fine, if deposited, shall be refunded to the appellant/accused.

[vi] No costs.

(Kum. Indira Jain, J.) *sdw