Bombay High Court
Sudhakar Jarjan Pawar vs State Of Mah.Thr. Pso Amravati on 30 October, 2017
Bench: R. B. Deo
apeal87.04+.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.87 OF 2004
Sudhakar Jarjan Pawar,
Aged about 38 years,
R/o Kekatpur, P.S. Mahuli Jahagir,
Amravati. ....... APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Police Station, Mahuli Jahagir,
Amravati. ....... RESPONDENT
WITH
CRIMINAL APPEAL NO.161 OF 2004
Balidas Nikam Pawar,
Aged about 30 years,
R/o Kekatpur, P.S. Mahuli Jahangir,
Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
State of Maharashtra,
(Through P.S.O. Mahuli Jahangir)
Tq. & Dist. Amravati. ....... RESPONDENT
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Shri Vinay Dahat, Advocate holding for Shri J.B. Kasat,
Advocate for Appellant.
Shri H.R. Dhumale, APP for Respondent/State.
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apeal87.04+.J.odt 2
CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 10.10.2017
DATE OF PRONOUNCING THE JUDGMENT : 30.10.2017
1] Both appeals seek to assail the judgment and order
dated 17.01.2004 in Sessions Trial 92/1997 delivered by
Additional Sessions Judge, Amravati, by and under which, the
appellants are convicted of offence punishable under section 304
Part-II read with section 34 of the Indian Penal Code and are
sentenced to suffer rigorous imprisonment for a period of five
years and to payment of fine of Rs.250/- each.
2] Criminal Appeal 87/2004 is preferred by Sudhakar
Pawar (hereinafter referred to as accused 1) and Criminal Appeal
161/2004 is preferred by Balidas Pawar (hereinafter referred to as
accused 2) who faced trial for offence punishable under section
302 read with section 34 of the Indian Penal Code. Both the
accused are acquitted of offence punishable under section 302
read with section 34 of the Indian Penal Code and are convicted of
offence punishable under section 304 Part-II read with section 34
of the Indian Penal Code.
3] I have heard Shri Vinay Dahat, the learned counsel for
accused 1 and Shri H.R. Dhumale, the learned Additional Public
Prosecutor for the respondent/State. The appeal was adjourned
time and again to enable the learned counsel for accused 2 Balidas
to assist the Court. However, the learned counsel for accused 2 has
chosen to remain absent. The appeal preferred by accused 2 is
being decided on merits, after scrutiny of record, consistent with
the dictum of the Hon'ble Supreme Court in Bani Singh and others
vs. State of Maharashtra (1996) 4 SCC 720.
4] The prosecution case is thus :-
The complainant one Shalu Daryadas Bhosale was
sleeping in front of her hut on the fateful evening of 08.09.1991.
The deceased Fulabai Nagindas Pawar, the sister-in-law of the
complainant was sleeping besides her.
The complainant awoke on hearing Fulabai shouting
"c;kc ejh x;h". Accused 1 Sudhakar was assaulting Fulabai with
stick. The complainant shouted "ekjh Mkoh ukLrk vkoks" and her
husband Daryadas rushed to the spot and caught hold of
Sudhakar. Accused 2 Balidas Pawar then inflicted a stick blow on
the stomach of Fulabai. Daryadas shouted that the person who is
assaulted is Fulabai and then accused 2 Balidas Pawar assaulted
Daryadas with stick. Daryadas used Sudhakar as a shield to save
himself from the assault launched by Balidas Pawar and in the
process Sudhakar received stick blows on neck, leg and waist. One
Sudharshan Bhosle intervened and he also suffered stick blows on
his legs. Many persons from the Beda (Camp of Pardhis)
assembled and accused 2 Balidas fled. The husband of Fulabai
Nagindas lifted Fulabai and brought her in front of his hut where
Fulabai breathed her last.
The case of the prosecution is that both the accused
nudge a grudge against Daryadas. The reason was an altercation
which took place at 07:00 p.m. on 08.09.1991. The accused
assaulted Fulabai under the mistaken assumption that Daryadas
was sleeping besides the complainant.
5] On the basis of the report lodged by the complainant,
offence punishable under section 302 read with section 34 of the
IPC was registered. The spot panchnama and the inquest
panchnama was recorded. One stick was seized from accused 2
Balidas. Another stick was produced by accused 1 Sudhakar which
was also seized. The dead body was sent for postmortem
examination which revealed that there was a rupture of liver
which resulted in death. After the completion of the investigation
the charge-sheet was submitted in the Court of Judicial Magistrate
First Class, Amravati who committed the case to the Sessions
Court.
6] The learned Sessions Court framed charge (Exh.32)
under section 302 read with section 34 of the Indian Penal Code.
The accused abjured guilt and claimed to be tried. The defence of
the accused is of total denial and false implication due to inimical
relation. The defence examined two witnesses.
7] P.W.1 Shalu Bhosale is the complainant. She has
deposed that she saw both the accused assaulting Fulabai with
stick. P.W.1 states that she raised an alarm, her husband Daryadas
came running and caught hold of accused Sudhakar.
Daryadas said to Sudhakar that the person who is assaulted is
Fulabai. Accused 2 Balidas then assaulted the husband of P.W.1
Daryadas. P.W.1 has proved the oral report Exh.44 in the
cross-examination, P.W.1 states that there are two Bedas (Camp of
Pardhis). One is headed by Daryadas and the other is headed by
the accused. The members of the Bedas reside on either side of
road. She admits that in her community liquor is traditionally
consumed on the eve of festivals and that the incident occurred on
Pola. She states that she is not aware if accused 1 and 2 suffered
injuries to head and they became unconscious.
8] P.W.2 Daryadas states that there was an altercation
between accused 2 Balidas and P.W.2 between 05:00 to 06:00
p.m. on the day of the incident. He states that he informed the
Police Patil about the altercation and returned home. P.W.2 states
that when he was sitting at the house of his mother, he heard the
shouts of P.W.1 and rushed to where P.W.1 and Fulabai was
sleeping. P.W.2 states that both the accused were assaulting
Fulabai with sticks. He caught hold of accused Sudhakar, used him
as a shield and protected himself from the stick blows which
accused 2 Balidas intended to inflict. He states that since Sudhakar
was used as a shield, he received stick blows inflicted by accused 2
Balidas. P.W.2 then deposes that when other people from the Beda
gathered, at the spot, accused 2 Balidas fled. A suggestion is given
to P.W.2 during the cross-examination that he and others went to
the house of the accused persons and assaulted them with stick,
the suggestion is denied. P.W.3 Wasudeo Sakharkar has proved
spot panchnama Exh.48. P.W.4 Diwakar Rote is the Police Patil of
village Kekatpur since 1975. He states that on Pola day one Home
Guard informed him that an altercation is going on in the Beda.
After sometime, accused came to the Police Patil and Daryadas,
Sheru and others followed. He has deposed that at his house there
was a scuffle between accused 1 Sudhakar and Sheru. He made
both the accused persons sit at his house and sent Daryadas, Sheru
and others back to their house after counseling them. P.W.4 states
along with Home Guard he went to Police Station Mahuli Jahangir
and gave the information to the Police Station Officer. He was told
by the Police Station Officer that since the vehicle is not available
he would come to the village later. P.W.2 then returned to his
home at 10:30 p.m.
P.W.4 Diwakar Rote then deposes that at 10:30 p.m.
the wife of accused 1 Sudhakar came to his house and informed
him that Daryadas and others have assaulted her husband
Sudhakar and Balidas with sticks and both are unconscious.
After 5 to 15 minutes, Kalandas and Daryadas Bhosale came to
P.W.4 and informed that the accused had murdered Fulabai.
P.W.4 further states he went to the Beda, and saw accused
Sudhakar and Balidas lying unconscious in the court-yard of
Daryadas Bhosale. He saw the body of Fulabai lying in front of her
house.
9] P.W.5 Nagindas Pawar is the husband of the
deceased. He has not supported the prosecution. It is brought out
in the cross-examination conducted by the learned A.P.P. that after
the death of Fulabai he married Chandralekha Bhosale who is
related to accused 1 Sudhakar.
10] P.W.6 Ashok Dhotre is the Officer who conducted the
initial investigation. He admits in the cross-examination that the
accused were injured while denying the suggestion that the
accused were unconscious and were referred by him to Medical
Hospital.
11] P.W.7 Dr. Pushpa Sadhwani conducted the autopsy on
the dead body of Fulabai along with Dr. D.M. Tekam. She has
proved the postmortem report Exh.16. Her opinion is that the
cause of death was haemorrhagic shock due to injuries to liver.
12] P.W.8 Uttam Jadhav recorded the statements of
Diwakar Dhotre, Ratnamala and Kalandas and submitted the
charge-sheet.
13] P.W.9 Ramesh Kale has proved the First Information
Report.
14] The defence examined D.W.1 Gopalsing and D.W.2
Kalandas. Gopalsing has deposed that there was an altercation
between Daryadas and his family members and the accused at
07:00 p.m. or thereabout on the date of the incident.
Gopalsing claims to be standing at a distance of 200 ft. from the
spot of the incident. He claims that the accused persons were
beaten by the complainant and others and were lying on the road
in semiconscious condition. Surprisingly, D.W.1 has not been
extensively cross-examined presumably since he states at the very
beginning of the cross-examination that he does not know about
the incident. However, the version of D.W.1 that he witnessed an
altercation in which the accused were at the receiving end, has
gone unchallenged. Kalandas who is examined as D.W.2 states
that the accused were injured when they were taken into custody
by the Police. However, he disclaims any knowledge about the
incident and is therefore, not cross-examined in any detail.
15] Three witnesses namely P.W.1 Shalu Bhosale
(complainant), P.W.2 Daryadas Bhosale and P.W.5 Nagindas
Pawar, the husband of the deceased are the material witnesses
who were examined by the prosecution as eye witnesses to the
incident. P.W.5 Nagindas Pawar, the husband of the deceased, did
not support the prosecution. Nothing is elicited in his
cross-examination to take the case of the prosecution any further.
Both P.W.1 Shalu and P.W.2 Daryadas have deposed that both the
accused Sudhakar and Balidas assaulted the deceased Fulabai with
sticks. The postmortem report and the evidence of the Doctor who
conducted the autopsy reveals that no external injury was noticed
on the person of the deceased Fulabai. The cause of death is
punctur of liver. The absence of external injury renders doubtful
the evidence that both the accused assaulted the deceased with
sticks. The more probable scenario that the deceased is likely to
have suffered the ruptured of liver due to a single albeit forceful
blow. Concededly, even according to the prosecution neither
Sudhakar nor Balidas were intending to cause harm to the
deceased Fulabai. The intended target was P.W.2 Daryadas.
The assault on Fulabai was a case of mistaken identity. It is
difficult to ascertain as to which of the accused delivered the fatal
blow which cause the liver rupture leading to the death of Fulabai.
It is admitted by P.W.6 Ashok Dhotre that both the accused were
injured. This admission is consistent with the defence evidence.
The learned Sessions Judge has accepted the contention of the
prosecution that Sudhakar suffered injuries since he was used as a
protective shield by Daryadas to ward off assault launched by
Balidas. However, there is no explanation forthcoming as to how
Balidas suffered injuries. To my mind, the explanation that
Sudhakar was used as a protective shield and took the blows
meant for Daryadas, is not free from doubt.
However, notwithstanding that the prosecution has not been able
to explain the injuries suffered by the accused, which may be due
to a retaliatory assault post the suffered injury to Fulabai, it is
clear that both the accused arrived at the spot armed with sticks
and intended to cause harm to Daryadas. Unfortunately it was the
deceased who was mistaken to be Daryadas and who suffered
injury.
16] The learned Sessions Judge has convicted the accused
for offence punishable under section 304 Part-II of the I.P.C. on
the reasoning that although the intention to cause death may be
absent, the knowledge that the act is likely to cause death can be
attributed to the accused. I am not in a position to agree with the
reasoning of the learned Sessions Judge. The evidence on record is
not sufficient to record a finding that the knowledge that inflicting
a stick blow on the sleeping Fulabai is likely to cause death can be
attributed to the accused. Moreover, as I have already observed,
from the evidence on record it is difficult even to ascertain as to
which of the accused assaulted Fulabai. In the light of the evidence
on record, I would set aside the conviction of the accused under
section 304 Part-II of the I.P.C. and instead sentence the accused
under section 325 of the I.P.C.
17] The incident occurred 26 years ago. I therefore,
sentence the accused to suffer rigorous imprisonment for two
years.
18] The conviction of the appellants-accused in both
Criminal Appeal 87/2004 and Criminal Appeal 161/2004 for
offence punishable under section 304 Part-II of the I.P.C. is set
aside and instead the appellants-accused Sudhakar and Balidas are
convicted for offence punishable under section 325 of the I.P.C.
and are sentenced to suffer rigorous imprisonment for two years.
19] The accused are entitled to set off the pre-conviction
and post conviction detention, against the sentence.
20] The sentence of fine is maintained.
21] The appeals are partly allowed.
JUDGE
NSN
