Bombay High Court
Bandu S/O Tulshiram Wankhade And & ... vs The State Of Maharashtra on 9 November, 2017
Bench: R. B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.25 OF 2002
Sahdeo s/o Zinguji Wankhede,
Aged about 62 years,
R/o Hartala, Dist. Amravati. ....... APPELLANT
...V E R S U S...
The State of Maharashtra through
P.S.O. Kholapur, Dist. Amravati. ....... RESPONDENT
WITH
CRIMINAL APPEAL NO.61 OF 2002
1] Bandu s/o Tulshiram Wankhede,
Aged about 30 years.
2] Chandu s/o Dayaram Wankhede,
Aged abou5t 28 years.
3] Nandu s/o Dayaram Wankhade,
Aged about 30 years.
All resident of Hartala,
P.S. Kholapur, Tq. Bhatkuli,
District Amravati. ....... APPELLANTS
...V E R S U S...
The State of Maharashtra through
P.S.O. Kholapur, Tq. Bhatkuli,
Dist. Amravati. ....... RESPONDENT
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Shri J.B. Kasat, Advocate for Appellant/s.
Shri H.R. Dhumale, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 14.08.2017
DATE OF PRONOUNCING THE JUDGMENT : 09.11.2017
1] Both the appeals challenge the judgment and order
dated 09.01.2002 in Sessions Trial 70/1996 delivered by
Additional Sessions Judge, Amravati, by and under which,
appellant-Sahdeo Wankhede in Criminal Appeal 25/2002 and
appellants-Bandu Wankhade, Chandu Wankhede and Nandu
Wankhade in Criminal Appeal 61/2002 are convicted for the
offence punishable under section 307 read with section 34 of the
Indian Penal Code and are sentenced to suffer rigorous
imprisonment for five years and to payment of fine of Rs.500/-.
2] Heard Shri J.B. Kasat, the learned Advocate for the
appellant/s and Shri H.R. Dhumale, the learned Additional Public
Prosecutor for the respondent/State.
3] The gist of the prosecution case is that on 19.01.1996
the appellants-accused assaulted Mukund Balkrushna Deshmukh
near the common water tank situated in village Hartala.
The genesis of the assault was an altercation between Mukund
Deshmukh and accused Nandu Wankhade, which took place on
the issue of fetching of water. The altercation which took place at
08:30 a.m. on 19.09.1998 ended with the residents of the locality
pacifying Mukund and Nandu Wankhade. However, accused
Nandu along with the other accused Bandu, Chandu and Nandu
accosted Mukund. Accused Sahadeo inflicted stick blow on the
head of Mukund who fell down and then was assaulted by all
accused. Mukund suffered injuries on head, hands and legs.
The residents of the village Bisan Raut, Prakash Raut, Nandkishor
Deshmukh took the injured Mukund to Primary Health Centre,
Kholapur by bullock-cart. Injured Mukund was examined by the
Medical Officer from Medical Officer of the P.H.C., Kholapur.
He was unconscious and was vomiting blood. He was referred to
General Hospital, Amravati. In the interregnum, Vitthalrao
Deshmukh lodged report with Kholapur Police Station on the basis
of which Head Constable Dayaram (P.W.18) registered offence
against Bandu Wankhade, Chandu Wankhade and Nandu
Wankhade who are named in the report. The case of the
prosecution is that after regaining consciousness, statement of
Mukund Deshmukh was recorded by Kholapur Police.
Mukund named accused Sahadeo, in addition to the others named
in the oral report lodged by Vitthalrao Deshmukh. The name of
accused Sahadeo was added as accused 4 in the crime. The I.O.
visited the spot, spot panchnama was drawn, accused Bandu,
Chandu and Nandu were arrested, sticks were seized from the
said accused in view of the memorandum statement recorded
under section 27 of the Indian Evidence Act, clothes of injured,
clothes of accused Chandu and Nandu were seized, accused
Sahadeo was also arrested and a stick was seized from Sahdeo.
On completion of investigation the charge-sheet was submitted in
the Court of Judicial Magistrate First Class, Amravati who
committed the case to the Sessions Court.
4] The Sessions Court framed charge under section 307
read with section 34 of IPC, the accused abjured guilt and claimed
to be tried. The defence of the accused, as is obvious from the
statement recorded under section 313 of the Code of Criminal
Procedure and the trend of the cross-examination, is of false
implication due to political rivalry. The father of accused 1-Bandu
Wankhede was murdered and the complainant along with others
are sentenced to life imprisonment for the said offence.
The accused further stated that wife of Sahadeo Wankhade was
contesting the election six months prior to the incident and the
complainant was insisting that she withdraw her candidature.
5] Shri J.B. Kasat, the learned counsel submits that
accused Sahadeo Wankhade, who is appellant in Criminal Appeal
25/2002 is obviously falsely implicated since he is not named in
the First Information Report lodged by Vitthalrao Deshmukh
(Exh.23). Insofar as accused Bandu Wankhade, Chandu
Wankhede and Nandu Wankhade the appellants in Criminal
Appeal 61/2002, the learned counsel would submit that the
evidence on record is marred by inter se inconsistencies,
contradictions, embellishments. The alternate submission of the
learned counsel Shri Kasat is that even if the evidence is accepted
at face value, the prosecution has not established charge under
section 307 of IPC and in the factual scenario, the conviction can
only be under section 326 of IPC if not under section 324 of IPC.
6] Per contra, Shri H.R. Dhumale, the learned Additional
Public Prosecutor supports the judgment impugned. He would
submit that the omission of Vitthalrao Deshmukh who lodged
report Exh.23 to name Sahadeo is of little significance.
Sahadeo was named as one of the assailants by the injured
Mukund when Mukund regained consciousness, is the submission.
The nature and extent of the assault, and the injuries suffered,
clearly spell out intention to cause death of Mukund and the
accused are rightly convicted under section 307 of IPC, is the
submission.
7] The contention of the learned counsel Shri J.B. Kasat
that accused Mukund who is the appellant in Criminal Appeal
25/2002 deserves the benefit of doubt since he is not named in
the First Information Report is not without substance. Be it noted,
that accused Sahadeo is not named in the First Information Report
lodged by Vitthalrao Deshmukh and is not even named in the 161
statements of the witnesses P.W.2-Vitthalrao Deshmukh,
P.W.7-Vijay Deshmukh and P.W.11-Nandkishor Deshmukh.
The learned Sessions Judge has however, relied on the disclosure
of the name of accused Sahadeo by P.W.1-Mukund, the victim of
the assault, after he regained consciousness. The learned Sessions
Judge observes thus:
25. It is true that the prosecution has to stand on its
own legs and the prosecution should not take benefit of
the lacuna or non establishment of the defence taken by
accused persons. Here, I have already mentioned that
PW-1 Mukund is disclosing the name and presence of
the accused no. 4 at the time of assault and that
according to him he has given the stick blow on his
head. There is nothing brought on record to falsify the
contention. Therefore, there is no reason to disbelieve
the version of PW 1 Mukunda and other merely because
at the time of filing the FIR PW-2 Vitthal Deshmukh
has not disclosed the name of accused no. 4. I have
already discussed that these eye witnesses arrived on
the spot on hearing the noise when Mukund was being
assaulted and therefore, the possibility of non-
availability of these witnesses at that time due to his
leaving the spot or due to lodging the FIR immediately
cannot be ruled out.
8] I am afraid, that the consistent failure of the
witnesses, who according to the prosecution are eye witnesses to
the incident, to name Sahadeo as one of the assailants ought not
to have been brushed aside on the possibility of Sahadeo leaving
the spot immediately. The benefit of doubt to Sahadeo could not
have been denied by a speculative process bordering on surmises
and conjectures. In the teeth of the evidence on record, the
defence of accused Sahadeo that he is falsely implicated due to
political rivalry assumes importance and sufficient doubt is
created as regards the veracity of the prosecution version to
probablize the defence on the touchstone of preponderance of
probabilities.
9] I am inclined to grant the benefit of the doubt to
appellant-Sahadeo and to allow Criminal Appeal 25/2002 by
setting aside the conviction and sentence under section 307 of IPC
as regards appellant-Sahadeo.
10] Insofar as appellants Bandu Wankhade, Chandu
Wankhede and Nandu Wankhade, in order to bring home the
charge, the prosecution examined 19 witnesses:
PW-1 Mukund Deshmukh - the injured is examined at
Ex. 18, PW-2 Vitthalrao Deshmukh the alleged eye witness and
the complainant is examined at Exh. 22, PW-3 Ramesh Ingle a
panch witness on the spot panchanama is examined at Exh. 24,
PW-4 Omprakash Betheria a panch witness on the seizure of the
blood sample is examined at Ex. 25. PW-5 Jamil Baig Sabdar Baig
a panch witness on the memorandum and seizure panchanama in
respect of the weapon seized at the instance of accused Sahadeo
examined at Ex.26, PW-6 Bahurao Kashirao Kangate a panch on
the memorandum and seizure panchanama in respect of the
weapons seized at the instance of accused no. 1 to 3 is examined
at Ex. 27, PW-7 Vijay Deshmukh the another eye witness is
examined at Exh.28, PW-8 Bisan Raut who, according to the
prosecution, was present on the spot at the time of incident is
examined at Ex. 29, PW-9 Vinod Gawai a panch witness on the
seizure memo in respect of the weapon seized at the instance of
accused Sahadeo is examined at Ex. 30, PW-10 Shriram Dhoke a
map drawer i.e. revenue inspector is examined at Ex. 33, PW-11
Nandkishor Deshmukh another alleged eye witness is examined at
Ex. 36, PW-12 Dilip Wankhade a police constable who has taken
the injured to Irwin hospital from P.H.C. Kholapur as well as who
has taken Muddemal from this crime for the chemical analysis is
examined at Ex. 37, PW-13 Dr. Ramesh Bhuskade then Medical
Officer from P.H.C. Kholapur, who has examined the injured as
well as collected the blood sample of the accused persons on
19/10/1996 is examined at Ex. 40, PW-14 Prakash Janrao Raut, a
Medical Officer from General Hospital, Amravati is examined at
Ex.46. PW-15 Dr. Chandrashekhar Kulkarni who has taken the X-
ray of the left hand of injured Mukund on 7/2/1996 is examined
at Ex.50, PW-16 Dr. Jaibharat Potode who has taken the x-ray of
skull of injured Mukund is examined at Ex. 54, PW-17 A.P.I.
Tawar who has made the investigation in this crime is examined
at Ex. 61, PW-18 retired head constable Dayaram Khandare who
has recorded the report and registered the crime on the basis of
report lodged by Vitthal Deshmukh (PW-2) is examined at Ex. 74,
PW-19 Dr. Baburao Deshmukh the Medical Officer from General
Hospital, Amravati who has examined injured Mukund is
examined at Ex. 77.
11] Be it noted, that P.W.13-Ramesh Ingale, witness to
the spot panchnama has not supported the prosecution.
P.W.4-Omprkash Betheria, the panch witness to the seizure of the
blood samples has also not supported the prosecution.
P.W.5-Jamil Baig and P.W.9-Vinod Gawai who are panch
witnesses to the memorandum and seizure as regards the stick
allegedly recovered from the accused Sahadeo have also been
declared hostile. P.W.6-Bahurao Kangate, who was examined to
prove the seizure and memorandum panchnama as regards the
sticks seized from accused Bandu, Chandu and Nandu also did not
support the prosecution. The eye witnesses to the incident are
P.W.1-Mukund Deshmukh who is the injured witness,
P.W.2-Vitthalrao Deshmukh is the informant, P.W.7-Vijay
Deshmukh, P.W.8-Bisan Raut and P.W.11-Nandkishor Deshmukh.
However, P.W.8-Bisan Raut has not supported the prosecution on
significant aspects.
12] I have carefully scrutinized the evidence on record
and in particular the evidence of P.W.1 injured Mukund
Deshmukh, P.W.2-Vitthalrao Deshmukh, P.W.7-Vijay Deshmukh
and P.W.11-Nandkishor Deshmukh. It is true that the said
witnesses are not in a position to specifically and precisely state as
to which blow was inflicted by which accused. But then, when a
person is being assaulted by several persons, it is not expected of
the eye witnesses to register, remember and recount the specific
and precise participative roles of the accused. It is also true, as is
argued by the learned counsel for the accused, that the injured
witness Mukund Deshmukh has, at some point in time,
exaggerated the incident inasmuch as the injured witness has
stated in 161 statement that Farsha was in possession of accused
Bandu. P.W.1-Mukund has denied this portion of the earlier
statement and such weapon was not seized from accused Bandu.
However, I am not persuaded to hold that the entire testimony of
the injured witness must be discarded only because the
exaggeration is brought on record through the evidence of the I.O.
13] On a holistic appreciation of evidence on record,
I would agree with the finding recorded by the learned Sessions
Judge that accused Bandu, Chandu and Nandu in Criminal Appeal
61/2002 assaulted the injured Mukund.
14] The accused in Criminal Appeal 61/2002 have been
convicted under section 307 read with section 34 of IPC.
The injury report Exh.78 as regards the injured witness Mukund
makes a reference to an injury on the occipital region 1" x ¼" x
bone deep, a contusion on forehead of 1" x 1½" in size and
multiple abrasions on both legs about 2 to 3 in numbers.
Dr. Potode who is examined as P.W.16 has deposed that
on 07.02.1996 he has taken x-ray of the head of Mukund
Deshmukh, one in lateral and another is A.P. position. He has
proved x-ray plates at Exh.55 and 56 and has deposed that he
noticed two fractures, one linear fracture in parietal region and
other on frontal bone in the centre. Dr. Potode has proved report
Exh.57. Dr. Kulkarni is examined to prove that P.W.1 Mukund
indeed suffered fracture on left metacarpal region, as was initially
suspected. Nothing is elicited in the cross-examination of
Dr. Potode or Dr. Kulkarni to suggest that P.W.1-Mukund did not
suffer fracture injuries testified by the said Medical Practitioner.
15] However, I am not persuaded to agree with the
learned Sessions Judge that the accused Bandu, Chandu and
Nandu can be convicted under section 307 of IPC read with
section 34 of IPC. P.W.1 was assaulted by sticks. There is nothing
on record to suggest that the accused were prevented from taking
the assault to the logical end. The evidence is not sufficient to
attribute intention to cause death nor the knowledge that by the
assault accused may cause death. It is however, crystal clear that
the accused caused grievous hurt to the injured P.W.1.
The weapons of assault are Lathis. However, the injures are
inflicted on vital parts of the body. The use Lathi as weapons of
offence, in the factual matrix, would attract section 326 of the
Indian Penal Code and while setting aside the conviction of the
accused Bandu, Chandu and Nandu for offence punishable under
section 307 of IPC read with section 34 of IPC, I convict the said
accused for offence under section 326 of IPC.
16] In the totality of the circumstances, inter alia the fact
that the incident occurred in the year 1996, I am of the opinion
that sentence of rigorous imprisonment for period of two years
would meet the ends of justice.
O R D E R
[i] Criminal Appeal 25/2002 is allowed.
[ii] Criminal appeal 61/2002 is partly allowed.
[iii] The appellants-accused Bandu Wankhede,
Chandu Wankhade and Nandu Wankhade are
acquitted of offence punishable under section
307 read with section 34 of IPC and are
convicted for offence punishable under section
326 of IPC and are sentenced to suffer
rigorous imprisonment for two years.
[iv] The accused are entitled to set off 428 of the
Code of Criminal Procedure.
[v] The bail bonds of accused in Criminal Appeal
61/2002 are canclled. They be taken into
custody to serve the remainder of sentence.
JUDGE
NSN
