Bombay High Court
Balu Sitaram Jawale vs The State Of Mah Throu Pso Police ... on 10 November, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.152 OF 2009
Balu s/o Sitaram Jawale,
Age : 26 years, Occu.: Jeep Driver,
R/o.: Patoda Mauli Nagar, Behind
Bus Stand Patoda, Tq. Patoda,
District Beed ..APPELLANT
(Ori. Accused No.1)
VERSUS
The State of Maharashtra
Through PSO Police Station,
Patoda, Tq. Patoda, through
Sow Asha w/o Bhagwan Kamble,
Age : 38 years, Occu.: labourar,
R/o. Patoda, Mauli Nagar,
Behind Bus Stand Patoda,
Tq. Patoda, District Beed .. RESPONDENT
(Prosecution)
WITH
CRIMINAL APPEAL NO. 568 OF 2009
The State of Maharashtra,
Through Police Station Officer,
Patoda, through: Sow. Asha w/o
Bhagwan Kamble, Age : 38 years,
Occu.: Labour R/o. Patoda Mauli Nagar,
Behind Bus Stand Patoda,
Taluka Patoda, District Beed .. APPELLANT
(Prosecution)
VERSUS
1. Balu s/o Shitaram Javale,
Age : 26 years, Occu.: Jeep Driver,
R/o. Patoda, Mauli Nagar,
Behind Bus Stand, Patoda,
2. Sarubai w/o Sitaram Javale,
Age : 56 years, Occu.: Household,
R/o. As above,
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3. Sitaram s/o Tulshiram Javale,
Age : 61 years,
Occu.: Pensioner-Teacher,
R/o. As above,
4. Meena w/o Balu Javale,
Age : 32 years, Occu.: Household,
R/o.: As above,
5. Ravindra s/o Sitaram Javale,
Age : 21 years, Occu.: Household,
R/o.: As above,
6. Rekha w/o Ravindra Javale,
Age : 22 years, Occ.: Household,
R/o. As above ..RESPONDENTS
(Ori.Accused)
----
Mr. N.L. Jadhav, Advocate for the appellant in Criminal
Appeal No.152 of 2009 and for the respondents in
Criminal Appeal No.568 of 2009
Mr. S.N. Morampalle, A.P.P. for the respondent/
prosecution in Appeal No.152 of 2009 and for the
Appellant/State in Criminal Appeal No.568 of 2009
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : 3rd NOVEMBER, 2017
PRONOUNCED ON : 10th NOVEMBER, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Criminal Appeal No.152 of 2009 has been filed
by the original accused No.1 in Sessions Case No.51 of
2008, against the judgment and order dated 27.02.2009,
3 criapl152-568-09
passed by the learned Additional Sessions Judge-3, Beed,
whereby he has been convicted for the offence punishable
under Section 324 of the Indian Penal Code ("IPC", for
short) and sentenced to suffer rigorous imprisonment for
one year and to pay a fine of Rs.500/-, while Criminal
Appeal No.568 of 2009 has been preferred by the
State/Prosecution, challenging the same judgment whereby
the original accused No.1 has been acquitted of the
offences punishable under Sections 147, 148, 307, 504,
506 read with 149 of the IPC and original accused Nos.2
to 6 have been acquitted of all the offences.
2. Since both the appeals have arisen out of the
same judgment, they are being decided by this common
judgment.
3. For the sake of convenience, the parties are
hereinafter referred to by their original nomenclatures,
by which they were referred to in the judgment passed by
the trial Court.
4. Accused No.1 - Balu and accused No.5- Ravindra
are the sons of accused No.2 - Sarubai and accused No.3-
Sitaram. Accused No.4 - Meena is the wife of accused
No.1, while accused No.6 - Rekha is the wife of accused
4 criapl152-568-09
No.5.
5. The informant namely Ashabai Bhagwan Kamble is
a resident of Patoda, District Beed. She was residing
behind bus stand of Patoda. To the backside of her
house, there is the house of accused Nos.1 to 6. Prior
to about the four days of the incident that took place
on 25.10.2005, the kids of she-goats of the informant
had swallowed "Udid" belonging to the accused persons.
Therefore, accused No.2 had got annoyed. On 25.10.2005,
at about 8.30 a.m., accused Nos.1, 2, 3 and 5 beat the
son of the informant namely Parmeshwar by means of
sticks, when he was near the bus stand. Her another son
namely Nilesh tried to rescue Parmeshwar. At that time,
he also was beaten by the said four accused persons.
Thereafter, they went to the house of the informant.
Accused No.1 gave a stick blow on the forehead of the
informant and caused her a bleeding injury. Accused No.5
also beat her by means of stick and caused invisible
injury on her right forearm and back. Accused Nos.2 and
3 abused her and beat her with fists and kicks. One Akka
Bhalerao, a neighbour, and Yashodabai, the mother of the
informant, pacified the quarrel.
5 criapl152-568-09
6. On being informed by somebody about the
incident, Parmeshwar, the son of the informant, came
back to his house and saw the informant lying in a pool
of blood. He took her to Police Station, Patoda in an
auto-rickshaw. Police referred her to Rural Hospital at
Patoda. She was given preliminary treatment there and
was referred to the Civil Hospital at Beed, where she
was admitted for treatment for seven days. On the 3rd day
of the incident i.e. on 27.10.2005, PHC Shete of Police
Station, Patoda, visited the Civil Hospital at Beed and
recorded the statement of the informant in respect of
the incident as per her say. The said statement was
treated as the First Information Report ("FIR", for
short). On the basis of that FIR, Crime No.95 of 2005
came to be registered against the above referred four
accused persons in Patoda Police Station, for the
offences punishable under Sections 147, 148, 307, 324,
504, 506 read with Section 149 of the IPC.
7. The investigation followed. The spot panchanama
was prepared. Two sticks came to be seized from the spot
of the incident itself. The statements of witnesses were
recorded. After completion of the investigation, the
above referred four accused persons came to be
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chargesheeted for the said offences in the Court of
Judicial Magistrate, First Class at Patoda, on the basis
of which Regular Criminal Case No.309 of 2005 came to be
registered on 21.12.2005.
8. The informant filed a complaint case before the
learned Judicial Magistrate, First Class at Patoda,
bearing Criminal Case No.271 of 2005 on 11.08.2006,
against the above referred accused Nos.1, 2, 3 and 5 and
also against accused Nos.4 and 6, in respect of the same
incident, which was subject matter of criminal case
No.309 of 2005. She added that accused No.1 gave axe
blow on her forehead and accused No.4 and 6 also beat
her alongwith accused Nos.1, 2, 3 and 5 by forming an
unlawful assembly. She further alleged that the accused
persons had intention to cause her death and accordingly
attempted to cause her death and thereby committed the
offence punishable under Section 307 besides offences
punishable under Sections 324, 504, 147, 148 read with
149 of the IPC. The learned Magistrate directed the
police to conduct investigation vide Section 156(3) of
the Code of Criminal Procedure ("the Code", for short).
9. ASI Javale, conducted the investigation and
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submitted "B" Summary Report against the informant on
the ground that R.C.C.No.309 of 2005 was already
registered on the FIR lodged by the informant against
the four of the accused persons and despite that she
maliciously filed a false complaint. The learned
Magistrate did not accept that report. He conducted
further enquiry under Section 202 of the Code and after
recording statements of the informant and her witnesses
found sufficient ground to proceed against all the six
accused persons, for the offences punishable under
Sections 147, 148, 307, 324, 504, 506 read with 149 of
the IPC. Accordingly, he issued bailable warrants
against accused Nos. 1 to 6 and after their appearance,
committed the case to the Sessions Court for trial as
per the order dated 05.05.2008, since offence under
Section 307 of the IPC was exclusively triable by the
Court of Session. The case was assigned to the learned
3rd Additional Sessions Judge for trial.
10. The learned Trial Judge framed charges against
all the six accused for the above-mentioned offences
vide Exh.6 and explained the contents thereof to them in
vernacular. The accused pleaded not guilty and claimed
to be tried. Their defence is that of total denial and
8 criapl152-568-09
false implication.
11. The prosecution examined in all eight witnesses
before the trial Court. After scrutinising the evidence
of the prosecution, the learned Trial Judge found
sufficient evidence to hold accused no.1 only guilty for
the offence punishable under Section 324 of the IPC. He
did not find sufficient and dependable evidence to hold
accused No.1 guilty for rest of the offences and accused
nos. 2 to 6 for all the offences. Accordingly, he
convicted and sentenced accused No.1 only for the
offence punishable under Section 324 of the IPC only and
acquitted accused No.1 of the rest of the offences and
accused Nos. 2 to 6 of all the offences.
12. The learned counsel for accused No.1 submits
that the evidence on record is not at all believable.
The informant is not a trustworthy witness. She has
disowned authorship of her own FIR that was lodged by
her when she was admitted in the Civil Hospital after
two days of the incident. He submits that there are many
vital omissions and improvements in the evidence of the
informant and other ocular witnesses, who are none other
than the close relatives of the informant. Though the
9 criapl152-568-09
spot of the alleged incident was situated in thickly
populated area and many persons were alleged to have
gathered at the time of the incident, who were residing
in the vicinity, none of them has been examined without
assigning any reason. The alleged incident took place on
25.10.2005, while informant filed complaint before the
Magistrate on 11.08.2006. The delay in filing complaint
has not been properly explained. He submits that the
learned Trial Judge wrongly believed the case of the
informant and wrongly convicted accused No.1. He
supports impugned judgment acquitting accused No.1 of
the rest of the offences and accused Nos. 2 to 6 of all
the offences.
13. As against this, the learned A.P.P. submits
that the evidence of the informant is supported by the
evidence of the ocular witnesses. The medical evidence
also supports her version that she sustained bleeding
injury on her forehead by means of hard and sharp weapon
like an axe. According to him, there was no reason for
the informant to make false allegations against the
accused persons. The evidence on record is sufficient,
cogent and believable to hold all the accused guilty of
all the offences, with which they have been charged. He
10 criapl152-568-09
submits that the learned Trial Judge committed grave
mistake in acquitting accused Nos. 2 to 6 of all the
offences and accused No.1 of other offences other than
the offence under Section 324 of the IPC.
14. The informant deposes at Exh.21 that all the
six accused persons came to her house on 25.10.2005 at
about 9.30 a.m. to 10.00 a.m., they hurled abuses
against her. Accused No.1 caught hold of collar of her
blouse and gave axe blow on her forehead. Accused No.3
gave stick blow on her waist, while accused No.5 gave
stick blow on her calf. All of them made her to fall on
the ground and assaulted her by means of sticks. She
sustained injuries on her hands, feet, stomach and
fingers. After hearing her shouts, her mother Yashodabai
(PW-3) (Exh.23) came to rescue her. The accused persons
pushed Yashodabai aside. Her father Keru (PW-6) also
come for her rescue. The accused assaulted him. She was
lying in the pool of blood. She become unconscious.
Somebody informed about that incident to her son
Parmeshwar (PW-5) (Exh.26). Parmeshwar (PW-5) brought an
auto-rickshaw and took her to Police Station, Patoda.
The police referred her to Rural Hospital at Patoda for
treatment with a requisition letter. The Medical Officer
11 criapl152-568-09
extended primary medical treatment to her and referred
her to Civil Hospital at Beed. Accordingly, she was
admitted in the Civil Hosptial, Beed for seven days for
treatment.
15. The informant further states that when she was
in the Civil Hospital on the day of the incident, two
persons came there at about 4.00 p.m. and threatened her
not to lodge the report. After she was discharged from
the Civil Hospital, she went back her house. There also,
the accused persons threatened her for not lodging the
report. Then, after about five days, she went to the
Police Station, Patoda, but the police did not take
cognizance. Thereafter, she complained against the
police to the Tahsildar, Superintendent of Police,
Collector. However, nobody took cognizance of her
complaint. Thereafter, she filed complaint case in the
Court of the Judicial Magistrate, First Class, Patoda.
16. The informant states that prior to the
incident, accused no.1 had taken away a kid of her
she-goat and killed it on the say as to why she had set
it free. On that count, the accused persons assaulted
her.
12 criapl152-568-09
17. PHC Shete (PW-4) (Exh.24) deposes that on
27.10.2005 Police Inspector Gaikwad of Police Station,
Patoda directed him to visit the Civil Hospital, Beed
and record the statement of the informant. Accordingly,
he went there. He asked the informant whether she was in
a position to give statement. When she answered in the
affirmative, he recorded her statement i.e. FIR (Exh.25)
as per her say and took her thumb impression thereon. He
states that on the basis of FIR (Exh.25) he registered
Crime No.95 of 2005 against accused Nos. 1 to 3 and 5
for the offences punishable under sections 324, 147,
148, 307, 325, 504, 506 read with Section 34 of the IPC.
It has come in his evidence that the informant had not
stated before him the facts that accused No.1 caught
hold of collar of the her blouse, all the accused made
her to fall on the ground, accused No.1 gave an axe blow
on her forehead, the accused pushed Yashobdabai (PW-3)
aside when she tried to rescue the informant, the
accused assaulted Keru (PW-6) and accused No.1 killed a
kid of her she-goat prior to the incident. These are
material omissions.
18. ASI Javale, (PW-7) (Exh.28), who conducted the
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investigation in Crime no. 95 of 2005, states that
involvement of four accused persons only was transpired
in the alleged incident in his investigation. It is,
thus, clear that the informant falsely involved two more
accused persons while filing of complaint before the
learned Magistrate. The chargesheet (Exh-29) filed by
Javale (PW-7) does not whisper about the ingredients of
Section 307 of the IPC. There is no reference of use an
axe by any of the accused. It is, thus, clear that the
informant, in order to aggravate the nature of the
crime, inserted the ingredients of Section 307 of the
IPC in that complaint and for the first time stated that
axe was used for causing injury to her at the time of
the incident. It is very strange to note that the
informant is totally silent about her FIR (Exh-25) on
recorded by PHC Shete (PW-4) 27.10.2005. There was no
reason for PHC Shete (PW-4) to depose false that he
recorded FIR (Exh.25) as per the say of the informant in
the Civil Hospital at Beed on 27.10.2005 and registered
Crime No.95 of 2005 in Police Station, Patoda, against
four accused persons for the offences punishable under
Sections 324, 504, 506, 147, read with Section 34 of the
IPC. There was no reason for ASI Javale (PW-7) to
14 criapl152-568-09
conduct a false investigation on the basis of FIR
(Exh.25). The informant did not explain as to why she
disowned authorship of FIR (Exh.25).
19. Yashodabai (PW-3) states that accused No.1
dealt with an axe blow on the head of the informant,
while accused Nos.3 and 5 gave stick blows on her body.
When she tried to intervene, she was pushed aside by the
accused. She stats that Keru (PW-6) also was pushed
aside by the accused persons. She does not at all
whisper about the presence of accused nos. 2, 4 and 6 at
the time of the incident. This fact also clearly shows
that the informant wrongly involved accused Nos. 2, 4
and 6 in the alleged incident.
20. In the cross-examination of Yashodbai (PW-3),
she admits that the facts that accused no.1 gave axe
blow on the head of the informant and that the accused
persons pushed aside Keru (PW-6) and herself, are not
mentioned in her statement before the police. These
omissions have been duly proved through the evidence of
ASI Javale (PW-7). These material omissions make it
clear that axe blow was not given by accused No.1 on the
head of the informant.
15 criapl152-568-09
21. Keru (PW-6) specifically states that at the
time of the incident, his wife Yashodabai (PW-3) and
himself were inside their house, which was at the
backside of the house of the informant. He then states
that after hearing shouts, Yashodabai (PW-3) and himself
went out of their room and saw that the informant was
lying on the ground and that she had become unconscious.
This evidence clearly shows that neither Yashodabai
(PW-3) nor Keru (PW-6) actually saw the incident. In his
cross-examination also Keru (PW-6) admits that he had
not personally witnessed the incident and that he came
to know about the incident from Yashodabai (PW-3). The
evidence of Yashodabai (PW-3) and Keru (PW-6) would not
be helpful to the prosecution to connect the accused
persons with the incident in question.
22. Parmeshwar (PW-5) (Exh.26), who is the son of
the informant, admittedly, was not present at the time
of the incident that is subject matter of this case.
Whatever, he has stated about the earlier incident that
incident took place near the bus stand, is not the
subject matter of the charges levelled against the
accused persons. However, from his evidence, one thing
16 criapl152-568-09
is clear that on 3rd day of the incident, police had been
to the Civil Hospital, Beed to make an enquiry with the
informant. This fact itself is sufficient to show that
PHC Shete (PW-4) visited the Civil Hospital on
27.10.2005 and as stated by him, he recorded the FIR
(Exh.25) as per the say of the informant. It is, thus,
clear that the informant is not a trustworthy witness.
23. Sudhir (PW1) (Exh.18) happened to be a panch to
the spot panchanama (Exh.19). He states that there are
houses situate around the spot of incident and that it
is a crowded place. The informant also states that there
are houses of five to six persons adjacent to her house
where the alleged incident took place. There are other
houses situate at the distance of about 50 feet towards
northern and eastern sides of her house. She states that
the incident lasted for about 30 minutes and the
neighbours had come to the spot of the incident after
hearing her hue and cry. If that be so, it was
necessary for the prosecution to examine the
neighbours/independent witnesses, more particularly when
the informant exhibited the tendency to state the facts
far from the truth. The prosecution has not explained as
to why any of these witnesses has not been examined.
17 criapl152-568-09
24. The informant states that the incident took
place at about 9.30 a.m. to 10.00 a.m. After the
incident, she was taken to the police station and then
to the Rural Hospital at Patoda. She must have consumed
some time in reaching Civil Hospital. Dr. Khandade (PW-
8) (Exh.37), who examined the informant, also must have
taken some time to see the informant. The injury
certificate (Exh.38) of the informant shows that Dr.
Khandade (PW-8) examined her at 9.30 a.m. on 25.10.2005.
If that be so, it cannot be accepted that the incident
occurred at about 9.30 a.m. to 10.00 a.m. This medical
evidence also shows that the informant did not sustain
the injuries at the time when she claims to have
sustained them.
25. As seen from the evidence of Dr.Khandade (PW-8)
there was an incised wound over frontal area of the
informant, having size 5x0.5 c.m. Its margins were clean
and sharp, with tappering on both the ends. It was
caused within 24 hours by hard and sharp weapon. He
further found abrasions over right forearm and left knee
of the informant. It has come in his cross-examination
that the injury on the frontal area of the informant was
18 criapl152-568-09
possible if a person falls on sharp stone on head.
26. As stated above, the evidence of the informant
is not believable, since she has considerably improved
her version to implicate even the innocent persons. She
has denied her own FIR (Exh.25). Yashodabai (PW-3) and
Keru (PW-6) are the parents of the informant, they are
interested witnesses. Moreover, their evidence, as
stated above, does not corroborate the case of the
prosecution in view of the omissions brought in their
cross-examination. Considering the tendency of the
informant to involve even the innocent persons and
exaggerate the facts, it was very risky and hazardous to
rely on her corroborated testimony.
27. The informant lodged complaint before the
Magistrate on 11.08.2006, in respect of the alleged
incident that took place on 25.10.2005. No plausible
explanation has been assigned by the informant for such
an inordinate delay. This delay certainly would be fatal
to the prosecution.
28. There is no independent corroboration to the
evidence of the informant. In the circumstances, the
evidence of the prosecution certainly cannot be said to
19 criapl152-568-09
be sufficient and dependable to hold even accused No.1
guilty for the offence punishable under section 324 of
the IPC.
29. The learned Trial Judge did not appreciate the
evidence on record correctly and properly while holding
accused No.1 guilty for the offence punishable under
Section 324 of IPC is concerned. Accused no.1 is liable
to be acquitted of the said offence. The judgment and
order of acquittal recorded by the learned Trial Judge
in favour of accused No.1 in respect of rest of the
offences so also acquittal of accused Nos.2 to 6 of all
the offences do not call for any interference, in view
of the discussion made above. In the result, we pass the
following order:-
O R D E R
(i) Criminal Appeal No. 152 of 2009 is allowed.
(ii) The impugned judgment and order convicting and
sentencing accused No.1-Balu s/o Sitaram Jawale, for the
offence punishable under Section 324 of the Indian Penal
Code, are quashed and set aside.
20 criapl152-568-09
(iii) Accused No.1 is acquitted of the offence
punishable under Section 324 of the Indian Penal Code.
(iv) Fine amount of Rs.500/- deposited by accused
No.1 be refunded to him.
(v) Appeal No.568 of 2009 is dismissed.
(vi) Bail bonds of accused Nos.1 to 6 are cancelled.
They are set at liberty.
Sd/- Sd/-
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
sam/criapl152-568-09
