Ramkrushna S/O Barkaji Gulhane ... vs The State Of ...
2017 Latest Caselaw 8626 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.67 OF 2000


 1) Ramkrushna s/o Barkaji Gulhane, _         (Appeal is dismissed
     Aged about 40 years,                      as abated vide order
                                               16-7-2015)
 2) Laxman s/o Barkaji Gulhane,
    Aged about 42 years, 

 3) Ambu Alias Amrut Babansa Gulhane,
     Aged about 22 years, 

 4) Devidas s/o Babansa Gulhane,
     Aged about 32 years, 

 5) Dayaram s/o Barkaji Gulhane,
     Aged about 38 years, 

 6) Babansa s/o Barkaji Gulhane,                 -(Appeal is dismissed
     Aged about 60 years,                          as abated vide order
                                                   16-7-2015) 
     All Appellant Nos. 1 to 6 are 
     Agriculturists and all of them are 
     the residents of Pethpura, MorshiMorshi, 
     District - Amravati.                             ....       APPELLANTS

                     VERSUS


 The State of Maharashtra, 
 through Police Station Officer, 
 Police Station Morshi, District Amravati.            ....       RESPONDENT

 ______________________________________________________________

             Shri P.D. Sharma, Advocate for the appellant, 
           Mrs. M.H. Deshmukh, Addl.P.P. for the respondent.
  ______________________________________________________________


::: Uploaded on - 13/11/2017                 ::: Downloaded on - 14/11/2017 02:10:35 :::
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                            CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 07-08-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 13-11-2017

 JUDGMENT : 

The appellants are aggrieved by the judgment and order

dated 17-2-2000 passed by the learned Additional Sessions Judge,

Amravati in Sessions Trial 266/1994, by and under which, while

acquitting the appellants of offence punishable under Section 307 read

with Section 149 of the Indian Penal Code, the learned Sessions Judge

was pleased to convict the appellants for offence punishable under

Section 148 of the Indian Penal Code and to sentence the appellants to

suffer rigorous imprisonment for one year and to payment of fine of

Rs.100/-, and to sentence the appellants to suffer rigorous

imprisonment for two years and to payment of fine of Rs.200/- for

offence punishable under Section 326 read with Section 149 of the

Indian Penal Code for causing grievous hurt by dangerous weapon to

Marotrao Dhole, and to sentence the appellants to suffer rigorous

imprisonment for one year and to payment of fine of Rs.200/- for

offence punishable under Section 452 read with Section 149 of the

Indian Penal Code and to further sentence the appellants to suffer

rigorous imprisonment for six months and to payment of fine of

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Rs.100/- for offence punishable under Section 324 read with Section

149 of the Indian Penal Code for causing hurt to Prakash Dhole, Sau.

Chanda Ramesh Dhole, Sau. Sunanda Ganesh Dhole and Vijay

Marotrao Dhole.

Appellant 1 Ramkrushna Barkaji Gulhane and appellant 6

Babansa Barkaji Gulhane died during pendency of the appeal,

therefore, the appeal stands abated as against them.

2. Heard Shri P.D. Sharma, learned Counsel for the

appellants (hereinafter referred to as the "accused") and Mrs. M.H.

Deshmukh, learned Additional Public Prosecutor for the respondent.

3. The appellants alongwith six others namely Motiram

Barkaji Gulhane, Sanjay Haribhau Gulhane, Vishwas Babansa Gulhane,

Kishore Dayaram Gulhane, Ganesh Motiram Gulhane and Vijay

Haribhau Gulhane faced trial for having formed an unlawful assembly

with the object of assaulting Marotrao Dhole and his family members

and in furtherance of common object, for having committed the offence

of rioting, house trespass and attempting to commit the murder of

Marotrao Dhole and voluntarily causing hurt to his family members.

The charge was under Sections 147, 148, 452, 307 and 324 read with

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Section 149 of the Indian Penal Code.

4. The prosecution case as is unfolded during the course of

trial is that the accused are residents of Pethpura locality of Morshi,

District Amravati. The victim Marotrao Dhole, who expired during the

pendency of trial was residing in the same locality with family.

Prakash Dhole is the son of deceased Marotrao Dhole.

Some months prior to the incident, accused Devidas

Gulhane purchased the bullock on credit from one Shamu Gond and

Prakash Dhole acted as a mediator or broker. Prakash Dhole had

guaranteed the payment of the costs of the bullock. Accused Devidas

did not make the payment to Shamu Gond. Prakash Dhole, on

05-7-1994, asked Devidas Gulhane to make the payment of the bullock

and the response of Devidas Gulhane was to assault Prakash Dhole in

respect of which incident Prakash Dhole lodged a report in the police

station Morshi.

The next day, on 06-7-1994 Marotrao saw Devidas

Gulhane and confronted him about the assault on Prakash in the

weekly market and berated him for having done so. Immediately

thereafter, the accused swooped on the house of Marotrao Dhole

armed with sticks. Marotrao Dhole was at the entrance of his house.

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He attempted to restrain the accused. All the accused started assaulting

Marotrao with sticks, as a result of which Marotrao Dhole suffered

fracture of right leg. The accused, then entered into the house of

Marotrao and assaulted Prakash Dhole and Vijay Dhole, sons of

Marotrao and other family members Smt. Chanda Dhole, Sunanda

Dhole, Gitabai Dhole and Godabai Dhole, by sticks.

Prakash Dhole rushed to police station Morshi, Police Sub-

Inspector Sugandhi came to the spot with his staff. Police Sub-

Inspector Sugandhi noticed Marotrao lying injured infront of his house

with bleeding injury. Marotrao was taken to Primary Health Centre,

Morshi and was examined by one Dr. Sawale. The victim Marotrao

Dhole lodged a report with Police Sub-Inspector Sugandhi, on the basis

of which offence punishable under Sections 147,148, 323, 452 and 307

read with Section 149 of the Indian Penal Code was registered. On the

same day at 9.45 a.m. or thereabout, the accused excluding Vijay

Haribhau Gulhane, were arrested. Police Sub-Inspector Sugandhi

visited the spot of the incident, drew the spot panchanama, collected

mud mixed with blood, the clothes of Marotrao which were stained

with blood were produced by Prakash and were seized. During the

course of investigation, sticks were seized pursuant to memorandum

recorded under Section 27 of the Indian Evidence Act from accused

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Laxman, Sanjay, Ambu, Vishwas, Devidas, Kishore and Dayaram

Gulhane. In the interregnum, Dr. Sawale examined Marotrao Dhole

and his family members. Marotrao Dhole suffered compound fracture

on the left leg with fracture of both bones to wit tibia and fibula.

Prakash Dhole suffered abrasions on the backside of the left elbow joint

and front side of the right forearm. Abrasions and contusions were

noticed on the person of Godabai, Chanda, Sunanda, Vijay and Gitabai

Dhole. Accused 12-Vijay Gulhane was arrested on 10-7-1994.

Investigation ensued and accused 1 to 12 were charge-

sheeted in the Court of Judicial Magistrate First Class, Morshi who

committed the case to the Sessions Court. The learned Sessions Judge

framed charge for offence punishable under Sections 147, 148, 452,

207 and 324 read with Section 149 of the Indian Penal Code. The

accused pleaded not guilty and claimed to be tried.

5. The prosecution examined twelve witnesses to bring home

the charge including Prakash Dhole (P.W.5), Chanda Dhole (P.W.6),

Ramesh Dhole (P.W.7), Sunanda Dhole (P.W.8) and Vijay Dhole

(P.W.10) who are injured witnesses. Dr. Sawale is examined as

P.W.12.

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6. The defence of the accused, as is discernible from the

statement recorded under Section 313 of the Criminal Procedure Code

is of total denial and false implication. The defence is that Godabai

who is the mother of Prakash Dhole contested the election and was

defeated. Marotrao Dhole and his family members believed that the

accused voted against Godabai and due to grudge, the accused have

been falsely implicated. Be it noted, that Marotrao Sakharam Dhole

who expired during the trial due to causes entirely unrelated with the

injury which suffered during the incident.

7. Shri P.D. Sharma, learned Counsel for the appellant, who

has also placed on record written submissions to buttress the oral

submissions, canvassed the following submissions :

(a) The participation of accused persons in the commission of

alleged offence is not conclusively proved by any cogent evidence.

(b) The circumstances suggest the possibility of free fight.

(c) Injuries on the person of one of the accused (appellant 4)

was not only suppressed but no action was taken on the report lodged

by him and he was advised to approach the civil Court.

(d) The investigating officer referred appellant 4 for medical

examination at 7.45 a.m., his presence, therefore, was not possible by

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any stretch of imagination on the spot of occurrence at 8-00 a.m.

(e) The seizure of the sticks is not proved.

(f) The medical evidence suggests that the injuries were

possible by fall on the ground.

          (g)      No independent witness was examined.

          (h)      The person who lodged the first information report could

not be examined before the Hon'ble Court which has deprived the

appellants of their valuable right under Section 145 of the Evidence Act

to cross-examine with respect to its contents.

(i) The circumstances in which the first information report

was lodged, are blurred.

(j) There are two other persons namely P.W.5 Prakash and

P.W.7 Ramesh who claimed to have went to the police station and

lodged the report and such a report lodged by them is suppressed by

the prosecution.

(k) Omnibus procedure was adopted to record the statements

of all the accused on common questionnaire indicating that the

prosecution could not successfully demonstrate before the Trial Court

individual acts and involvement of the appellants.

(l) It was absolutely improper and unsafe to convict the

appellants only on the basis of first information report referring to their

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involvement.

8. P.W.1 Sharadkumar Abrol is examined to prove the site

map of the place of incident Exhibit 96.

P.W.2 Ramesh Bargat is examined to prove the spot

panchanama and the seizure of the clothes of Marotrao and the sticks

produced by accused Laxman, Sanjay, Ambu, Vishwas, Devidas,

Kishore and Dayaram. P.W.2 did not support the prosecution and is

cross-examined by the learned Additional Public Prosecutor. He admits,

in the cross-examination, the signatures on the spot panchanama and

the seizure panchanama.

P.W.3 Raju Kaple who is examined to prove the spot

panchanama, did not support the prosecution and is cross-examined by

the learned Additional Public Prosecutor. Nothing is elicited in the

cross-examination of P.W.3 Raju to assist the prosecution.

P.W.4 Bhimrao Pradhan who is examined as eye-witness

did not support the prosecution and was cross-examined by the learned

Additional Public Prosecutor. Except a statement that Marotrao

sustained injury on leg, nothing material is brought out in the cross-

examination by the learned Additional Public Prosecutor to support the

prosecution.

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P.W.5 Prakash Dhole has narrated the incident which took

place a day prior to the assault. P.W.5 has proved report Exhibit 104

which he lodged at police station Morshi alleging that he was slapped

by accused 7 Devidas. Prakash has further deposed that on the day of

the incident at 8-00 a.m. accused 7 Devidas was confronted by

Marotrao. Accused 7 Devidas left the house of Marotrao and within

ten minutes all the accused, armed with sticks, came to the house of

Marotrao, Prakash was inside the house and Marotrao was outside, is

the deposition. Prakash states that all the accused persons assaulted

Marotrao who became unconscious. The accused entered the house,

broke open the inside door of the house, all the accused assaulted

Prakash and when the other family members came to the rescue of

Prakash, the accused assaulted Godabai, sisters Gitabai and Durgabai,

brothers and sisters-in-law Chandabai and Sunandabai. In the cross-

examination, on behalf of accused Ramkrishna, Motiram, Laxman,

Sanjay, Ambu and Vishwas, certain omissions are brought on record,

which according to me are not significant since the omissions touch

only the peripheral or incidental aspects and not the core of the

incident. A suggestion is given to Prakash that in view of the grudge

nurtured against the accused, they have been falsely implicated. In the

cross-examination on behalf of accused Devidas, Kishore, Dayaram,

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Babansa and Ganesh, obviously in the response to suggestions, P.W.5

Prakash states thus :

"It is true that my father said to Devidas that he had not paid the amount to his son i.e. myself and on the contrary he assaulted him i.e. me and as such his act was not proper. It is true that Devidas accused No.7 said to my father that he means my father may take action against him as he likes and thereupon I gave two blows by a dried stem of Tur crop. It is not true to say that I had given blows to accused No.7 by stick. I do not know whether the accused No.7 reported to police about the blows given by me to him. It is true that scuffle had ensued between me and my father on one hand and the accused No.7 on the other hand. On hearing, our cry the members of my family came out of the house. It is not true to say that my brother, mother, sister and sister-in- law tried to separate us. It is not true to say that during this incident, I picked up a stick and gave a blow by it, but it unfortunately struck on the leg of my father. It is not true to say that the members of my family sustained abrasions while rescuing and separating me and my father. It is not true to say that the accused No.7 Devidas tried to rescue himself from our hands and we tried to bring him inside the house. It is not true to say that during scuffle my father fell on the cemented poles known as Gawana and sustained injury. It is not true to say that first the accused No.7 had gone to police station for lodging the report and then I went to police station for lodging the report."

What is discernible from the trend of the cross-

examination, is that accused Devidas, Kishore, Dayaram, Babansa and

Ganesh have suggested that there was a physical altercation between

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accused 7 Devidas on one hand and Prakash and Marotrao on the other

hand. The suggestion is that Marotrao suffered injury due to blow

inflicted by Prakash who was intending to assault Devidas. The

suggestion is that the other family members of P.W.5 Prakash suffered

abrasions in the process of rescuing and separating P.W.5 Prakash and

Marotrao. It is suggested to Prakash that in the scuffle Marotrao fell on

cemented pole and sustained injury.

P.W.6 Chanda Dhole has deposed that the family members

attempted to save Prakash from the assault, however, P.W.6 Chanda

and other family members also bore the brunt of the assault. In the

cross-examination, a few minor omissions are elicited. The witness is

suggested that on the day of the incident the family members of the

witness assaulted accused 7 Devidas, which suggestion is denied. The

cross-examination also brings on record the inter se relationship

between the accused and the family of the witness and the fact that

Marotrao knew all the twelve accused.

P.W.7 Ramesh Dhole is the son of Marotrao and brother of

Prakash. He states that he was standing beyond the main road which

passes infront of his resident. The witness has deposed that all the

accused came to his house with sticks. They assaulted his father

Marotrao who collapsed on the spot having received stick blows. All

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the accused entered the house. The witness, who till then was standing

near the small bridge which is beyond the main road, rushed to the

house. The accused persons assaulted Prakash and when other family

members attempted to rescue Prakash, they were also assaulted.

Ramesh went to police station Morshi and reported the incident. In the

cross-examination, the said witness states that each of the accused

assaulted each of the seven members of the family who were inside the

house. The witness denies that there was an altercation between

Marotrao and Prakash on one hand and accused 7 Devidas on the

other, prior to the incident. However, in the cross-examination on

behalf of accused Devidas, Kishore, Dayaram, Babansa, Ganesh and

Vijay, the witness has admitted an altercation between Marotrao and

Prakash on one hand and accused 7 Devidas, on the other.

P.W.8 Sunanda Dhole has deposed that on the day of the

incident at 8-00 a.m. all the accused entered her house armed with

sticks, damaged the doors of the house, dragged her brother-in-law

Prakash by holding his hair and assaulted him with sticks. When P.W.8

intervened, she was hit with stick on right hand, is the deposition. The

other members of the family also received stick blows. The witness

states that when the family members came out of the house, Marotrao

was seen lying in the courtyard by the side of the tar road with

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bleeding injury.

P.W.9 Savitribai Kumbhare has deposed as regards the

altercation between Prakash and accused 7 Devidas on the issue of

payment of the price of bullock.

P.W.10 Vijay Dhole states that on 06-7-1994 at 8-00 a.m.

when he was resting on the cot inside the house, he heard commotion.

He peeped through the window and saw Marotrao lying on the road.

All the accused persons had assaulted Marotrao with sticks, is the

deposition. Accused entered the house, damaged the doors and

assaulted Prakash and when other members of the family tried to save

Prakash, they were also assaulted with stick blows, is the deposition.

In the cross-examination on behalf of accused 7 to 12, it is brought on

record that on both sides of the road infront of the house, there used to

be traffic since morning and that during the incident since Marotrao

and other family members raised alarm, about 50 persons had gathered

near the place of incident including the neighbours of the witness.

Although the witness admits that the accused did not work or canvas

for her mother during election campaign, he denies the suggestion that

his family was not on good terms with the accused since the election.

P.W.11 Mohan Sugandhi is the investigating officer. It is

brought out in the cross-examination of the investigating officer that

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the station diary dated 06-7-1994 reveals that at about 6-30 a.m.

accused 7 Devidas had lodged report in the police station to the effect

that he was assaulted by Marotrao Dhole, Prakash Dhole and Ganesh

Dhole. It is further elicited that accused 7 Devidas was sent to hospital

at 7.45 a.m. and that he was arrested on 06-7-1995 and the arrest

panchanama was prepared at 9-45 a.m. The investigating officer

admits that the doctor issued certificate as regards the injuries suffered

by accused 7 Devidas which is not produced alongwith the charge-

sheet. The investigating officer further states in the cross-examination

that he registered the offence at 9-30 a.m. and arrested 11 accused at

9-45 a.m. Except the statement of Marotrao and the medical

certificate, the investigating officer did not have any papers when he

arrested the accused persons.

Be it noted, that in the examination-in-chief, the

investigating officer refers to the statement of Marotrao as first

information report which is proved as Exhibit 114. The investigating

officer states that he arrested accused 1 to 11 and then prepared the

spot panchanama. He deposes as to the seizure of sticks from accused

7 Devidas and proves memorandum Exhibit 119. The investigating

officer proves seizure memorandum recorded in view of statement

given by accused 5 Ambu (Exhibit 122). Similarly he states that

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accused 8 Kishore made a statement that he kept a stick at his house,

accordingly memorandum was recorded and the admissible portion is

marked Exhibit 124. The seizure panchanama is proved and marked

Exhibit 125. Memorandum of accused 6 Vishwas is proved and marked

Exhibit 126 and the seizure panchanama is proved and marked Exhibit

127. Memorandum of accused 9 Dayaram is proved and marked

Exhibit 128 and the seizure panchanama is proved and marked Exhibit

129. Memorandum of accused 4 Sanjay is proved and marked Exhibit

130 and the seizure panchanama is marked Exhibit 131. The

memorandum of accused 3 Laxman is proved and marked Exhibit 132

and the seizure panchanama is marked Exhibit 133. The investigating

officer states that all the sticks were seized on 10-7-1994.

P.W.12 Dr. Baban Sawale who is examined to prove the

injury certificate Exhibit 136 issued pursuant to the medical

examination of injured Marotrao. P.W.12 has deposed that Marotrao

suffered compound fracture on left leg, both bones tibia and fibula

were found fractured and there was lacerated wound 4" below left

knee joint horizontal of size 2" x ½ " bone deep. A contusion swelling

on backside of left chest was also noticed. P.W.12 has deposed that

Marotrao Dhole was referred to General Hospital, Amravati for further

treatment.

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P.W.12 on examining Prakash Dhole issued medical

certificate dated 06-7-1994 Exhibit 137 and he has deposed that

Prakash Dhole suffered two abrasions, one on the backside of left

elbow and the other on the front side of right forearm. P.W.12

examined Godabai Dhole who suffered two abrasions and two

contusions. The medical certificate is Exhibit 138. Chanda Dhole

suffered a contusion on dorsal side of ring and little finger of left hand

which is Exhibit 139. Sunanda Dhole suffered a contusion on dorsal

side of right hand of size 2" x 1" and the medical certificate is Exhibit

140. Vijay Dhole suffered one contusion on backside of chest on right

side middle to scapula region, on the right side/middle to scapula

region of 3" x 1" dimension and one abrasion on dorsal side of ring

finger of left hand and the medical certificate is Exhibit 141. While

Gitabai Dhole suffered contusion on backside of chest on the left side of

size 3" x 2". In the cross-examination, P.W.12 has admitted that

injuries suffered by Chanda, Godabai, Vijay, Sunanda, Gitabai and

Prakash are simple in nature and could be caused for fall on hard and

rough surface.

9. A minute scrutiny of the evidence on record would reveal

that not a single witness attributes any specific role to the twelve

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accused implicated in the incident of assault on Marotrao and the other

members of the family. The only independent witness who is

examined did not support the prosecution. Marotrao expired before the

commencement of the trial. The other witnesses who are members of

the family have in unison deposed that all the twelve accused were

members of unlawful assembly, assaulted Marotrao and then barged in

the house and assaulted Prakash and other family members who

attempted to rescue Prakash.

10. The learned Sessions Judge was pleased to acquit accused

2 Motiram, accused 4 Sanjay, accused 6 Vishwas, accused 8 Kishore,

accused 11 Ganesh and accused 12 Vijay holding that since they were

not named in the first information report, there was no material

available with the investigating officer to arrest the said accused. The

learned Sessions Judge has relied on the seizure of the sticks proved

through the investigating officer, but then, the seizure of sticks is also

from the accused who are acquitted. The investigation is clearly unfair.

It is brought on record in the cross-examination of the investigating

officer, that accused 7 Devidas lodged a report at police station Morshi

to the effect that he was assaulted by Marotrao, Prakash and Ganesh

and that he was sent for medical examination at 7-45 a.m. It is

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axiomatic that accused 7 Devidas could not have been involved in the

incident which according to the prosecution occurred at 8-00 a.m. or

thereabout. The injury certificate as regards Devidas is suppressed.

The fact that Devidas was implicated in the incident, is suggestive of

either false or over implication and unfair investigation.

11. The finding recorded by the learned Sessions Judge that

the prosecution has proved that Marotrao suffered grievous hurt is, in

my opinion, unsustainable. Concededly, it is not established by

adducing evidence of x-ray or other radiological evidence that

Marotrao suffered fracture. Ordinarily, it would be unsafe to assume

as a fact that a person has suffered fracture unless the x-ray reports are

proved by examining the radiologist. It is not even the case of the

prosecution, that the fracture was diagnosed with the assistance of the

radiology report. It would be apposite to refer to the following

observations in the case of Faizan Ahmed Abdul Wahab Shah vs. The

State of Maharashtra reported in 2014 ALL MR (Cri.) 4841.

"20. It is seen that the injuries are not proved to be grievous hurt. There cannot be a presumption that the grievous hurt was caused without formal proof of the fact of fracture. The fact of existence of fracture cannot be diagnosed and certified in absence of proof of x-ray plates, unless the fact of fractured

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bones is perceivable barely of perception by naked eyes and sheerly by clinical examination, its being vivid and palpable. Therefore, proof of x-ray plates was necessary particularly, the appellant had made an attempt to retract the admission of medical certificate/discharge summary"

12. In my opinion, the seizure of sticks to which only the

investigating officer has testified, is of little significance. The

distinction made by the learned Sessions Judge between the accused

acquitted and the accused convicted, is, in my opinion, not warranted

in the factual matrix. The only reason given by the learned Sessions

Judge is that the accused acquitted are not named in Exhibit 114, but

then, in view of the death of Marotrao, although Exhibit 114 may be

admissible in evidence, the veracity thereof could not be tested through

cross-examination. Accused 7 Devidas whose presence on the spot is

suspect is also named in the first information report. The witnesses

who have supported the prosecution are related witnesses and the only

independent witness was declared hostile. It is true that related

witnesses are not necessarily interested witnesses. It is also true, as is

contended by the learned Additional Public Prosecutor, that ordinarily

the injured witnesses stand on a higher pedestal than other witnesses.

But then, the witnesses have assigned identical role to or each of the

twelve accused. Six of them are acquitted and State has not challenged

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the acquittal. The over implication and indeed false implication is

apparent from the fact that accused 7 Devidas who could not have been

on the spot is implicated as one of the assailants. The incident is

blurred. Some of the witnesses have admitted that there was a physical

altercation between accused 7 Devidas on one hand and Marotrao and

Prakash on the other prior to the incident.

13. In the totality of the circumstances, although the evidence

on record may at the most raise strong suspicion, unimpeachable proof

is lacking.

14. I deem it extremely hazardous to let the conviction rest on

the evidence on record. I would extend the benefit of doubt to the

accused and acquit them of the offences with which they have charged.

The judgment and order dated 17-2-2000 delivered by the

learned Additional Sessions Judge, Amravati in Sessions Trial

266/1994 is set aside.

The accused are acquitted of the offences punishable

under Sections 148, 326 read with Section 149, 452 read with Section

149 and 324 read with Section 149 of the Indian Penal Code.

The bail bonds of the accused shall stand discharged.

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The fine paid by the accused, if any, be refunded to them.

The appeal is allowed and disposed of accordingly.

JUDGE

adgokar