State Of Maharashtra Through ... vs Shrawan Umaraji Shivarkar And ...
2017 Latest Caselaw 8505 Bom

                                                        1                  APEAL-282-12.odt

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

                        CRIMINAL APPEAL NO.282 OF 2012

 The State of Maharashtra,
 Through Police Station Officer,
 Police Station, Kalamb,
 District : Yavatmal.                                             ..... APPELLANT

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

 1. Shrawan Umaraji Shivarkar,
    Aged about : 57 years.

 2. Umesh Shrawan Shivarkar,
    Aged about : 25 years.

      Both R/o Sawargaon, Tq.Kalamb,
      District : Yavatmal.                                        ... RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri T. A. Mirza, A.P.P. for the appellant.
 Shri R. R. Gour, Advocate (Appointed) for the respondents (accused).
 -------------------------------------------------------------------------------------------

                                  CORAM:-   PRASANNA B. VARALE &
                                                 ARUN D. UPADHYE, JJ.

                                  DATED :-     0 7
                                                   /11/2017.


 JUDGMENT : (PER ARUN D. UPADHYE, J.)

1. Being aggrieved by the Judgment and order dated

10/04/2012 passed by the Additional Sessions Judge, Yavatmal in S.T.

No.80/2009, the appellant/State of Maharashtra has filed the present

appeal challenging the acquittal of accused Nos.1 and 2 for the offence

punishable under Sections 307, 504, 506 r/w Section 34 of the Indian

Penal Code. The brief facts of the case are as under :-

2 APEAL-282-12.odt

2. The complainant PW-1 - Chandrabhan Gulabrao

Shivarkar, R/o Sawargaon lodged the report in the Police Station,

Kalamb. In the report, it is alleged that the accused No.1 - Shrawan

Umaraji Shivarkar, aged about 57 years, who is his cousin and Umesh

Shrawan Shivarkar, aged about 25 years, who is his nephew. Both the

accused are residing near his house. It is the case of the prosecution that

the complainant had sold his land admeasuring 40 x 16 sq.ft., situated

at backside of his house to the accused No.1 for consideration of

Rs.20,000/- by a registered Sale Deed. The remaining land admeasuring

16 sq.ft. was purchased by the accused from his father - Gulab Damuji

Shivarkar by taking advantage of his illiteracy. According to him, he has

kept wood in his remaining land i.e. admeasuring 16 sq.ft.

3. According to the prosecution on 15/02/2009 at about

7.30 p.m., the accused persons came on the spot and asked to vacate

the said land saying that the land has been purchased. They picked up

quarrel with his wife namely; Sau.Chandabai Chandrabhan Shivarkar,

aged about 40 years and his mother - Sau. Gunabai Gulabrao Shivarkar,

aged about 60 years. They have given abuses to them in a filthy

language. The accused No.2 given blow with an axe on the head of his

wife and also assaulted on her back, as result of which, she sustained

bleeding injury. When his mother intervened, the accused No.1 by

3 APEAL-282-12.odt

taking same axe given blow on the head of his mother and also caused

bleeding injury. According to the prosecution, the complainant came to

know about the said incident and thereafter, along with his father,

immediately came to his house. The neighbourers namely Anil Babarao

Ashtankar, Dilip Rambhau Deshmukh, Waman Gomaji Shivarkar and

Manoj Mahadevrao Bhagat had taken the injured to the Primary Health

Centre at Sawargaon for medical treatment. Thereafter, the Medical

Officer, Primary Health Centre, Sawargaon referred the injured to the

Rural Hospital, Kalamb for further medical treatment. The injured were

brought to the Police Station, Kalamb by private vehicle and they were

immediately sent to the Rural Hospital at Kalamb. In the hospital, the

treatment was given. The complainant, thereafter went to the Police

Station and lodged the report against the accused persons.

4. The Police registered the offence vide Crime

No.23/2009 under Sections 324, 504, 506 r/w Section 34 of the I.P.C.

During the course of investigation, the police added Section 307 of the

I.P.C. During the course of investigation, police drawn Spot

Panchanama, seized the axe under Seizure Panchanama. The Police

seized blood stained clothes of accused Nos.1 and 2. The police also

seized the blood stained clothes of the injured persons. The seized

weapon - axe was sent to the Doctor for opinion. During the course of

investigation, the Investigating Officer collected the Injury Certificate

4 APEAL-282-12.odt

from the Medical Officer. The seized muddemal was sent to the

Chemical Analyzer for analysis. The statement of witnesses were

recorded. After completion of necessary investigation, police filed

charge sheet against both the accused before the Judicial Magistrate,

First Class, Kalamb. The offence punishable under Section 307 of the

I.P.C. is exclusively triable by the Court of Sessions. Therefore, the

learned Magistrate has committed the case to the Court of Sessions.

5. Both the accused appeared in the proceeding and the

charge came to be framed against them vide Exh.5. The contents of the

charge were read over and explained to them in vernacular. They

pleaded not guilty and claimed to be tried. The learned Additional

Sessions Judge, Yavatmal after recording the evidence in the matter on

both the sides and after hearing them, pleased to acquit both the

accused by his Judgment and order dated 10/04/2012 for the offences

punishable under Sections 307, 504, 506 r/w Section 34 of the I.P.C.

6. Being aggrieved by the said Judgment and order dated

10/04/2012 passed by the Additional Sessions Judge, Yavatmal, the

State of Maharashtra has filed the present appeal amongst other

grounds mentioned in the Appeal Memo.

5 APEAL-282-12.odt

7. We have heard both the sides at length. Shri T.A.Mirza,

learned APP for the State has vehemently submitted that the learned

Additional Sessions Judge has not considered the evidence on record in

proper perspective and wrongly acquitted the accused persons. He

submitted that the PW-2 - Chanda w/o Chandrabhan Shivarkar and

PW-3 - Gunabai w/o Gulabrao Shivarkar are the injured witnesses. PW-

7 - Dr.Ravindra Dinkarrao Pande has proved the Injury Certificates. The

Injury Certificates are at Exh.66 and 67. The accused have given

suggestion to the witnesses that in scuffle, the injury sustained to them

by falling on spade and pieces of bricks. The Doctor has categorically

stated that the injury sustained by the injured witnesses would be

caused by the axe. The presence of the accused on spot is not in dispute.

The learned Additional Sessions Judge has not considered the evidence

on record and therefore, interference of this Court is required. The

prosecution has established the guilt of both the accused at least, for the

offence punishable under Section 324 of the I.P.C. The accused,

therefore, be convicted by allowing the appeal.

8. Shri Gour, learned counsel (Appointed) for the accused

has vehemently submitted that the learned Additional Sessions Judge

has rightly considered the evidence on record and acquitted both the

accused. He further submitted that there was dispute between the

parties on account of house property. The injury sustained by both the

6 APEAL-282-12.odt

injured witnesses in the scuffle and falling on spade and pieces of

bricks. The accused have not assaulted them. He further submitted that

if the Court comes to the conclusion that the accused have committed

an offence, at the most, an offence under Section 324 of the I.P.C. is

made out. He also submitted that there is no evidence on record for the

offences punishable under Sections 504, 506 of the I.P.C. and therefore,

the learned Additional Sessions Judge has rightly acquitted the accused

for the said offences. Lastly, it is submitted that the appeal be dismissed.

9. Considering the submission of both the sides and with

the assistance of both the learned counsel, we have perused the

evidence on record. The complainant PW-1 - Chandrabhan Shivarkar,

who lodged the report at Exh.34 is not an eye-witness to the incident.

He after admitting his wife and mother in the hospital, lodged the

report. The printed FIR is at Exh.35. The prosecution has mainly relied

upon the evidence of injured witnesses i.e. PW-2 - Chanda w/o

Chandrabhan Shivarkar examined at Exh.36 and PW-3 - Gunabai w/o

Gulabrao Shivarkar examined at Exh.37. Both these witnesses have

categorically stated the act of both the accused. PW-2 - Chanda w/o

Chandrabhan Shivarkar has stated that the incident was occurred on

15/02/2009 at about 7.30 p.m. The accused Umesh Shrawan Shivarkar

inflicted blows of axe on her head and back and she sustained bleeding

injury. Her mother-in-law intervened at that time. Accused Shrawan

7 APEAL-282-12.odt

Umaraji Shivarkar assaulted her by means of axe. She further deposed

that thereafter, she was taken to the hospital where doctor examined

her and given treatment. She identified the weapon - axe Article-A. She

was examined at length. In the cross-examination, it was suggested to

her that the accused have not assaulted to her and her husband lodged

false report. However, she denied. In the cross-examination, it was

suggested to her that when there was pushing and pulling between her

and wife of accused No.1, she as well as her mother-in-law fell down on

spade and bricks and sustained injuries. However, she denied. In the

cross-examination, nothing is brought on record to disbelieve her

version.

10. PW-3 - Gunabai w/o Gulabrao Shivarkar, mother-in-

law of PW-2 - Chanda w/o Chandrabhan Shivarkar. This witness has

also categorically deposed that Umesh Shivarkar inflicted bleeding

injury on the head of Chanda Shivarkar and back by means of an axe

and accused Shrawan Shivarkar inflicted blows with an axe on her head

and she sustained bleeding injury. In the cross-examination, similar type

of suggestions were given, but she denied. The evidence of PW-2 -

Chanda Shivarkar is fully corroborated by PW-3 - Gunabai Shivarkar.

11. In this case, the prosecution has also examined PW-7 -

Dr.Ravindra Dinkarrao Pande, who examined Chanda Shivarkar and

found following injuries.

                                                   8               APEAL-282-12.odt


 i)     Cut and lacerated injury on the forehead of size 2 x 1 cm.
 ii)    Cut and lacerated injury on the occipital of skull of size 3 x 2 cm.

According to Dr.Ravindra Dinkarrao Pande, injuries

might have been caused by hard and sharp object and the nature of

injury is a grievous one. The certificate is at Exh.66. The doctor also

deposed that he has also examined Gunabai Shivarkar and found

following injuries.

Cut and lacerated injury on the frontal region of the skull of size 2 x ½ cm.

The doctor opined that the same injuries caused by

sharp and hard object and issued Injury Certificate at Exh.67. In the

evidence, the doctor has also given opinion that the injuries sustained

by the patients is caused by Article - A and accordingly, in writing, he

has given opinion vide Exh.69. The Doctor was cross-examined at

length. It was suggested to him that the injuries sustained by the injured

persons are possible by falling either on spade or on the pieces of bricks

in a scuffle, but he denied. It was suggested to him that he has issued

MLC as per wish of the police, but he denied. The medical evidence has

fully corroborated the oral version of PW-2 - Chandra Shivarkar and

PW-3 - Gunabai Shivarkar. The injury sustained by injured witnesses

are caused by axe.

9 APEAL-282-12.odt

12. The prosecution has also relied upon the circumstantial

evidence. PW-4 - Vinod Shamrao Bhagat is a Panch Witness of Seizure

Panchanama at Exh.39. In the evidence, he has deposed that police

seized Article - A in his presence. It was suggested to him that axe was

not seized in his presence, but he denied.

13. The police also examined PW-5 - Gajanan Ramchandra

Pawar to prove the Seizure Panchanama at Exh.Exh.49 and 50. As per

the version of this witness, the police seized blood stained clothes of the

accused Shrawan Shivarkar and Umesh Shivarkar. It was suggested to

him that police already prepared the panchanama. He only signed it,

but he denied it.

14. PW-6 - Maroti Gunaji Fulpagar is an Investigating

Officer who prepared Arrest Panchanamas as well as map of spot. As

per the version of this witness, both the accused were arrested and

Arrest Panchanamas are at Exh.54 and 55. He prepared map of spot and

signed the Panchanama vide Exh.56. He also prepared panchanama and

seized the blood stained clothes of the injured persons vide Exhs. 57

and 58. The blood sample of injured was collected vide Exh.60. It was

suggested to him that the false panchanama was prepared by the police,

but he denied.

10 APEAL-282-12.odt

15. The prosecution has also relied upon Chemical

Analyzer's reports vide Exhs.32 (i), 32 (ii), 32 (iii), 32 (iv), 32 (v), 32

(vi) and 32 (vii). On perusal of these Chemical Analyzer's reports, it

appears that moderate number of blood stains were found on the

Articles, except Articles-1 and 2, as per Chemical Analyzer's report at

Exh.32(i). The blood detected on Articles-3 to 10 is of human. However,

blood was not detected on Articles-1 and 2. As per report at Exh.32 (vi),

the blood phial of Gunabai Shivarkar and blood stained clothes of her

were found of Blood Group "A". Considering the above evidence on

record, the same corroborates the prosecution story that the injured

witnesses sustained injury and considerable blood stains were found on

clothes.

16. In this case, the defence has also examined DW-1 - Anil

Manohar Ashtikar at Exh.78. In the evidence, this witness has stated

that he heard the noise of quarrel and went there. According to him in

the scuffle, Chanda Shivarkar and Gunabai Shivarkar fell on spade and

the pieces of bricks and sustained injuries and thereafter, he taken them

to the hospital. He was cross-examined at length. In the cross-

examination, he has not stated to the police in his statement about the

incident. He also stated that he has not disclosed the incident to the

Medical Officer. The evidence of this witness, on the contrary, supports

the prosecution theory and not to the defence. It is to be noted that the

11 APEAL-282-12.odt

doctor has categorically stated that the injury sustained by PW-2 -

Chanda Shivarkar and PW-3 - Gunabai Shivarkar are not possible by

falling down on spade and pieces of bricks. The evidence of this witness

is not at all helpful to the defence to prove their case.

17. After considering the evidence on record and on

hearing both the sides, we are of the considered view that the

prosecution has successfully proved the guilt of the accused for the

offence punishable under Section 324 of the IPC. The prosecution,

however, not established the case that there was intention of the

accused to commit attempt to murder of injured witnesses and

therefore, the ingredients of Section 307 of the IPC, are not attracted.

The learned Additional Sessions Judge has wrongly arrived at a

conclusion that the prosecution failed to establish the guilt of the

accused on the ground that the witnesses might have sustained injury

by falling down on spade and pieces of bricks in the scuffle. The learned

Additional Sessions Judge has wrongly observed that the prosecution

has not examined an independent witness in this case, except the

injured persons and therefore, acquitted the accused. The evidence on

record is not properly appreciated by the learned Additional Sessions

Judge. The evidence of injured witnesses is fully corroborated by

medical evidence as well as circumstantial evidence on record. The

presence of the accused is also not disputed. The prosecution, thus,

12 APEAL-282-12.odt

proved the offence punishable under Section 324 r/w Section 34 of the

IPC.

18. As regards the offences under Sections 504 and 506

r/w Section 34 of the IPC are concerned, there is no evidence on record

to show that the accused persons intentionally insulted and gave

provocation to Chanda Shivarkar and Gunabai Shivarkar intending that

the provocation would cause break into public peace. The prosecution

has also failed to prove the accused committed criminal intimidation by

threatening the injured witnesses, as alleged. Thus, no offence is proved

by the prosecution under Sections 504 and 506 of the IPC.

19. We, therefore, hold the accused Nos.1 and 2 guilty for

the offence punishable under Section 324 r/w Section 34 of the IPC

only.

20. On the point of sentence, we have heard both the sides

at length. Shri Gour, learned counsel for the accused has submitted that

the incident is of the year 2009 and occurred on the ground of house

property. Both the accused are agriculturist by profession and

neighbourers of the injured witnesses and complainant. A lenient view

be taken by awarding the sentence undergone by them for the offence

punishable under Section 324 of the IPC.

13 APEAL-282-12.odt

21. Shri Mirza, learned APP has submitted that both the

accused persons have assaulted to the prosecution witnesses and caused

grievous injuries by means of axe. He, therefore, submitted that

maximum sentence under Section 324 of I.P.C. be awarded against

them. He strongly opposed the submissions put forth on behalf of the

accused persons. He further submitted that in addition to the sentence

order, compensation be awarded to the injured witnesses under Section

357 (3) of Cr.P.C.

22. Considering the submission of respective sides and

having gone through the material on record, we are of the considered

view that undergone sentence of 21 days and compensation of

Rs.5,000/- each to the injured witnesses would meet the ends of justice.

The appeal filed by the State will have to be allowed partly. Hence, we

pass the following order:-

ORDER

i) The appeal is partly allowed.

ii) The impugned Judgment and order dated 10/04/2012 passed by the learned Additional Sessions Judge in S.T.No.80/2009 so far as Clause (1) is concerned for acquitting the accused Nos.1 and 2 for the offence punishable under Section 307 of the IPC is quashed and set aside.

14 APEAL-282-12.odt

iii) The accused Nos.1 and 2 namely; Sharawan Umaraji Shivarkar and Umesh Shrawan Shivarkar are convicted for the offence punishable under Section 324 of the IPC and sentenced to suffer undergone sentence of 21 days.

iv) The accused Nos.1 and 2 are directed to pay Rs.5,000/- to the injured witnesses i.e. PW-2 - Chanda Shivarkar and Rs.5,000/- to the PW-3 - Gunabai Shivarkar, as a compensation under Section 357 (3) of the Cr.P.C.

v) The rest part of the Judgment is maintained.

23. The fees of Shri Gour, learned counsel

(appointed) for the accused, is quantified at Rs.5,000/-.

                      JUDGE                                   JUDGE




 Choulwar