Avinash @ Baba Chintaman ... vs State Of Mah. Thr. Pso Saoner, ...
2017 Latest Caselaw 7772 Bom

apeal.533.03.jud                           1



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

                    CRIMINAL APPEAL NO.533 OF 2003

Avinash @ Baba s/o Chintaman Chaudhari,
Aged about 44 years, Occ: Landlord,
R/o Saoner, Distt. Nagpur                                           .... Appellant

       -- Versus -

State of Maharashtra,
through P.S.O. Saoner,
District Nagpur.                                                .... Respondent


Shri R.B. Gaikwad, Advocate for the Appellant.
Shri Shyam Bissa, A.P.P. for the Respondent/State.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : OCTOBER 4, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 22/07/2003 passed by the learned 1st Ad hoc

Additional Sessions Judge, Nagpur in Session Trial No.721/2001.

By the said judgment and order, accused no.1 though acquitted

of the offence punishable under Sections 307 and 201 of the

Indian Penal Code ('IPC' for short) came to be convicted of the

offence punishable under Sections 324 of IPC and sentenced to

suffer rigorous imprisonment for two years with fine of

Rs.3,000/-, in default to undergo rigorous imprisonment for three

months.

02] The facts giving rise to the appeal may be stated in

brief as under :

i. PW-1 Gangadhar Thakre is complainant. He had

taken two rooms on rent from accused Avinash on

01/01/1996. Gangadhar was running a readymade

cloth shop in the name and style as M/s. Jyoti

Garments in the rented premises. As he was

indisposed, shop was closed from 24/04/2001 till

12/06/2001. He was in arrears of rent for two months.

On 13/06/2001, at around 08:30 a.m., PW-4 Prashant

Thakre opened the shop and Gangadhar followed him.

Some cloths were found missing. Gangadhar asked

accused about the missing cloths. On that, accused

replied that 'he may do whatever he want' and asked

Gangadhar to vacate the shop, otherwise he would kill

his entire family. That time Gangadhar asked accused

to return the cloths, otherwise he would report to

police. Gangadhar lodged report in the police station.

ii. On 14/09/2001 at 9 O'clock, Gangadhar with his wife

PW-3 Pushpa, Son PW-4 Prashant and another son

Sachin were present in the shop. Accused came in

front of shop and called Gangadhar. Gangadhar went

near accused. Accused demanded rent. Gangadhar

told him that he had sent rent through post. Accused

insisted Gangadhar to pay in cash and he would not

accept the rent through post. Gangadhar insisted for

rent receipt to which accused declined and insisted

Gangadhar to vacate the premises. He also

threatened to kill the family of Gangadhar and saying

so, took out a knife concealed in his waist and rushed

towards Gangadhar to assault him. On seeing this,

Pushpa tried to save Gangadhar. Accused delivered

blows with knife on back of head and above left eye of

Pushpa. She sustained injuries and fell down.

Accused then assaulted Prashant by knife blows on

his left arm. Gangadhar and Prashant could manage

and caught hold Avinash. Accused gave a call to

Moreshwar. Moreshwar, wife of accused, co-accused

Urmila, Vinod and Gadwe reached the spot. Vinod

snatched away knife from accused and handed it over

to Urmila. Thereafter, Avinash was taken to his house,

and Pushpa and Prashant went to Police Station with

Gangadhar. Report was lodged. It was reduced to

writing by PW-10 ASI Dongre. Crime No.203/2001

came to be registered under Section 307 IPC against

the accused.

iii. PW-13 PSI Baliram Daberao took over investigation.

Injured were referred to Rural Hospital, Saoner.

Accused was arrested. On 15/09/2001, PSI Daberao

visited the place of occurrence and recorded spot-

panchnama in the presence of panch-witnesses. The

stains of blood were found on the spot. The cement

flooring pieces having blood stains were seized. It's

seizure-panchnama was drawn.

iv. According to prosecution, on 15/09/2001 accused was

in police custody. He gave a statement in the

presence of two panch-witnesses to discover a knife

concealed in his house. He stated that his clothes

were kept hidden in the house. PSI Daberao recorded

memorandum of accused and proceeded to the house

of accused. Accused produced a knife kept beneath

the wooden almirah and the clothes from his house.

Discovery panchnama of knife and clothes came to be

drawn by the Investigating Officer.

v. It transpired during investigation that some blood

stains lying on the spot were wiped out by Urmila. She

was interrogated. She produced a Baniyan having

blood stains. The said Baniyan was seized and its

seizure-panchnama was drawn. Accused Urmila was

then arrested.

vi. On 16/09/2001, clothes of injured Pushpa and

Prashant were seized under separate seizure-

panchnamas recorded in the presence of panchas.

Statements of witnesses were recorded. Seized

muddemal was forwarded to Chemical Analyzer. On

completing investigation, charge-sheet was filed

before Judicial Magistrate First Class, Saoner, who in

turn committed the case for trial to the Court of

Sessions. On committal, Sessions Court framed

Charge at Exh.2. Accused pleaded not guilty and

claimed to be tried. The defence of accused was of

total denial and false implication.

vii. In order to substantiate the guilt of accused,

prosecution examined in all 13 witnesses. In addition

to oral evidence, reliance was placed on series of

documents. Considering the oral and documentary

evidence, trial Court negatived the charge under

Sections 307 and 201 of IPC. Accused no.2-Urmila was

held not guilty of the offences alleged and she was

acquitted. However, accused no.1-Avinash was held

guilty of the offence punishable under Section 324 of

IPC, and convicted and sentenced as stated

hereinabove. Being aggrieved with the order of

conviction and sentence, accused no.1 has preferred

this appeal.

03] Heard Shri R.B. Gaikwad, learned Counsel for

appellant and Shri Shyam Bissa, learned Additional Public

Prosecutor for the State. With the assistance of the learned

Counsel for the parties, this Court has perused the impugned

judgment and order, evidence of PW-1 Gangadhar, PW-3 Pushpa,

PW-4 Prashant and other material witnesses. On close scrutiny

of the evidence of prosecution witnesses and keeping in view the

previous animosity between the parties, this Court for the below

mentioned reasons holds that prosecution could not prove the

offence under Section 324 of IPC against the accused.

04] PW-1 Gangadhar, PW-3 Pushpa and PW-4 Prashant are

the star witnesses. Their evidence is almost identical. It is

stated by PW-1 Gangadhar that on 14/09/2001 at around 09:15

p.m., he was present in his shop. That time, his sons Prashant

and Sachin and wife Pushpa were also present. He stated that

accused Avinash came in front of his shop and called him. He

went near accused and accused demanded rent from him. On

that, he replied that rent has been sent by money order.

According to Gangadhar, accused insisted for cash. Gangadhar

told him to give rent receipt. Accused asked Gangadhar to pay

rent in cash, else vacate the premises. It is stated by Gangadhar

that accused threatened to kill family members of Gangadhar

and took out a knife concealed near his waist. That time, his

wife came in front and pushed him aside. From the evidence of

Gangadhar, it appears that accused gave blow of knife initially

on the head of Pushpa, but the blow struck against her eye. The

second blow with knife was delivered by accused on her head.

She sustained bleeding injuries and fell down. It is stated by

Gangadhar that thereafter he and his sons Prashant and Sachin

caught hold accused. Accused called other persons including his

wife. They came on the spot. Vinod, to whom the accused called,

snatched away knife from the accused. While snatching the

knife away, Prashant sustained injury to his right arm.

Thereafter accused went away. It is stated by Gangadhar that he

and Pushpa went to Police Station and lodged report. He proved

oral report [Exh.23] and printed F.I.R. [Exh.24].

05] In the cross-examination, it is admitted by Gangadhar

that his relations with accused were strained as there was a

dispute on rent.. If oral report is minutely looked into, the

manner of incident disclosed before police appears to be

different than deposed before the Court. As per oral report,

Gangadhar, his wife Pushpa and sons Prashant and Sachin had

come to the shop at 9 O'clock. That time, accused started

abusing them and said "you leave shop, otherwise I will kill your

family". Therefore, accused brought a knife, rushed at

Gangadhar to assault. Then, he states in oral report that as his

wife intervened, she sustained blow on the back of head and

received injuries. Similarly, his son Prashant too rushed to save

him, but he sustained injury on his left arm.

06] So far as hurling of abuses is concerned, there is no

whisper in the entire evidence. Regarding injury to Prashant, no

where it is stated in the evidence that due to knife blows, he

received injuries. It appears from the injury report that accused

brought the knife after hot exchange between him and

complainant, whereas in the evidence, it is stated that he took

out a knife hidden near the waist. The evidence and the oral

report create an anomaly so far as carrying of knife is concerned.

That anomaly has not been removed by the prosecution till end.

Considering the previous animosity and the admitted strained

relations between accused and complainant since before the

incident, it was essential for prosecution to prove manner of

incident beyond doubt. This has not been done.

07] So far as evidence of PW-3 Pushpa and PW-4 Prashant

is concerned, it is almost identical to the evidence of

complainant Gangadhar. Prashant is son of complainant and

Pushpa is his wife. They are bound to side the complainant, as

long standing dispute is pending between accused and

complainant on payment of rent.

08] The learned A.P.P. submitted that medical evidence is

consistent and corroborates the testimony of complainant and

witnesses. The submission is that Medical Officers are

independent witnesses and there is no reason to disbelieve their

testimonies. It is pertinent to note that presence of other

witnesses on the spot has been admitted by PW-4 Prashant in his

cross-examination. Even from the charge-sheet, it can be seen

that prosecution named the witnesses. None of independent

witnesses came to be examined, except PW-2 Kiran Gadhwe,

who did not support the prosecution and was declared hostile.

Prosecution did not assign any reason for not examining the best

witnesses though available. Non-examination of independent

witnesses is a serious drawback in prosecution case.

09] So far as discovery of knife is concerned, prosecution

examined PW-5 Marotrao as panch witness. He did not support

the prosecution and was declared hostile. In the absence of

evidence, no reliance can be placed on discovery-panchnama

and the alleged memorandum of accused.

10] In the light of the above, this Court finds that

prosecution could not prove the guilt of accused under Section

324 IPC beyond reasonable doubt. As such, judgment and order

of conviction and sentence is unsustainable in law. Hence, the

following order :

ORDER

I. Criminal Appeal No.533/2003 is allowed.

II. Impugned judgment and order dated 22/07/2003

passed by the learned 1st Ad hoc Additional Sessions

Judge, Nagpur in Session Trial No.721/2001 is quashed

and set aside.

III. Appellant-accused Avinash @ Baba s/o Chintaman

Chaudhari is acquitted of the offence punishable

under Section 324 of IPC.

IV. His bail bonds shall stand cancelled forthwith.

*sdw                                        (Kum. Indira Jain, J)