Bombay High Court
Shobharam Dadu Kaslekar & Anr vs State Of Mah.Thr.P.S.O.Dharni on 31 October, 2017
Bench: R. B. Deo
apeal284.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.284 OF 2004
1] Shobharam s/o Dadu Kasdekar
Aged about 50 years,
Occu: Agriculturist,
Resident of Sawalkheda,
Tq. Dharni, Dist. Amravati.
2] Asaram s/o Dadu Dhurve,
Aged about 42 years,
Occu: Agriculturist,
R/o Sawalkheda,
Tq. Dharni, Dist. Amravati. ....... APPELLANTS
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Dharni, Tq. Dharni,
Dist. Amravati. ....... RESPONDENT
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None for Appellants.
Shri N.B. Jawade, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 13.10.2017
DATE OF PRONOUNCING THE JUDGMENT : 31.10.2017
1] Challenge is to the judgment and order dated
25.03.2004 in Sessions Trial 123/1998 delivered by 1 st Adhoc
Additional Sessions Judge, Achalpur, by and under which,
appellant 1-Shobharam Dadu Kasdekar is convicted for offence
punishable under section 324 of the Indian Penal Code and is
sentenced to suffer rigorous imprisonment for two years and to
payment of fine of Rs.200/- and appellant 2-Asaram Dhurve is
convicted for offence punishable under section 323 of IPC and is
sentenced to suffer rigorous imprisonment for six months and to
payment of fine of Rs.200/-.
2] The appeal was called out on 03.10.2017. There was
no appearance on behalf of the appellants and subject to payment
of costs the hearing was adjourned to 06.10.2017. However, the
appeal was listed for final hearing on 09.10.2017. Again, there
was no appearance on behalf of the appellants. It was noticed that
the learned counsel for the appellant had not collected the
paper-book. This Court heard the learned Additional Public
Prosecutor for sometime and adjourned the hearing to 13.10.2017
making it clear that if there is no appearance on behalf of the
appellants, the appeal shall be decided on merits. Since there was
no appearance on behalf of the appellants on 13.10.2017, with
the able assistance of Shri N.B. Jawade, the learned Additional
Public Prosecutor this Court scrutinized the record, heard the
learned Additional Public Prosecutor who in all fairness invited
the attention of this Court to the entire evidence including the
material adverse to the prosecution, as indeed every officer of this
Court is expected to do.
3] The appellants Shobharam Kasdekar and Asaram
Dhurve, original accused 1 and 2, faced trial for having committed
offences punishable under sections 147, 148, 307, 324, 326 read
with section 149 of the IPC along with six others namely
Gangaram Kasdekar, Balaji Kasdekar, Zapu Kasdekar, Nandu
Kasdekar, Chhotelal Bethekar and Shobharam Bethekar (accused
3 to 8). While the learned Sessions Court was pleased to acquit
the accused 3 to 8 of all offences, the accused 1-Shobharam
Kasdekar is convicted for offence punishable under section 324 of
IPC and accused 2-Asaram Dhurve is convicted for offence
punishable under section 323 of IPC as noted supra.
4] The State has not challenged the acquittal of accused
3 to 8 nor has the State challenged the finding of the learned
Sessions Judge that accused 1 and 2 Shobharam and Asaram
deserves to be acquitted of offences punishable under sections
147, 326, 307 read with section 149 of IPC.
5] The appellant 1 (herein after referred to as the
accused 1-Shobharam) is convicted for offence punishable under
section 324 of IPC on the basis of the finding recorded that it is
established by the prosecution that accused Shobharam assaulted
P.W.5-Tarasingh Belsare with an axe. The appellant 2 (herein
after referred to as the accused 2-Asaram) is convicted for offence
punishable under section 323 of IPC on the basis that it is proved
that he assaulted P.W.4-Mala Belsare with stick. I deemed it
appropriate to notice the broad contours of the prosecution case
and to re-appreciate that part of the evidence on the basis of
which the learned Sessions Judge has convicted accused 1 and
accused 2 under section 324 and 323 of the IPC respectively.
6] One Ramkisan s/o Subhedar Belsare married
Bhagirathi alias Baghai the daughter of accused 1-Shobharam
Kasdekar. Ramkisan went to Mumbai for work leaving Bhagirathi
at the residence of his father Subhedar. Ramkisan returned from
Mumbai to Sawalkheda, his native place, on 09.03.1998. The case
of the prosecution is that between 08:00 p.m. to 09:00 p.m. on
10.03.1998 accused along with other family members entered into
an altercation with Ramkisan and his father making an issue of
Ramkisan having left Bhagirathi at his father's house when he left
for Mumbai.
7] The prosecution case is that the accused 1-Shobharam
was armed with an axe and so was accused 6-Nandu. The accused
2-Asaram and others were armed with sticks or lathis. In the
assault Ramkisan Subhedar Belsare, Tarasingh, Salku Bethekar
and Mala Belsare suffered injuries.
8] Let me now consider the evidence on the basis of
which the learned Sessions Judge has convicted accused
1-Shobharam for offence punishable under section 324 of IPC.
The learned Sessions Judge has held that the prosecution has
proved that accused 1-Shobharam assaulted P.W.5-Tarasingh with
an axe. The learned Sessions Judge has based the said finding on
the evidence of P.W.5-Tarasingh and the seizure of an axe from
accused 1-Shobharam which according to the prosecution was
found to be stained with blood in the Chemical Analyzer's report.
Having given my anxious consideration to the
judgment impugned, I must record my inability to uphold the
finding of the learned Sessions Judge that the prosecution has
proved that accused 1-Shobharam assaulted P.W.5-Tarasingh with
an axe. The statement in the examination-in-chief of
P.W.5-Tarasingh that accused 1-Shobharam assaulted him with an
axe is an omission. The statement ought to have been discarded
on this short ground. The seizure of the axe from Shobharam is
shown to have been made at 08:30 a.m. on 11.03.1998 and the
seizure panchnama records that axe was produced by Shobharam.
However, the witness to the seizure panchnama P.W.10 has
deposed that his signature on the seizure panchnama was
obtained between 01:00 to 01:30 p.m. He further admits in the
cross-examination that he did not know from which accused what
weapon was seized. This admission must be viewed in the context
of the earlier statement that he did not know the contents of the
panchnama and that the Police collected the sticks, spears etc.
from the house of the accused and tied the weapons in a bundle.
The learned Sessions Judge has also considered the report of the
Chemical Analyzer as an incriminating material against
accused 1-Shobharam. But then, the record reveals that two axes
were sent for Chemical Analysis at Exh.3 and Exh.4. The report of
the Chemical Analyzer is that while blood stains were noticed on
Exh.3, axe Exh.4 did not have blood stains. Firstly, I am not
inclined to attach any weight to the seizure of the axe from
accused 1-Shobharam and more importantly, even if it is assumed
that an axe was seized from Shobharam there is nothing on record
to show with any certainty that axe on which the Chemical
Analyzer noticed blood stains was the axe was seized from
accused 1-Shobharam.
9] In the light of what is noted supra, I have no
hesitation in holding that there is no incriminating material
brought on record to prove that accused 1-Shobharam assaulted
Tarasingh with an axe. The prosecution has not proved the
offence against accused 1-Shobharam much less beyond
reasonable doubt and accused 1-Shobharam deserves to be
acquitted for offence punishable under section 324 of IPC.
10] The accused 2-Asaram is convicted for offence
punishable under section 323 of IPC on the basis of the testimony
of P.W.4-Mala. Be it noted that at one stage in the judgment the
learned Sessions Judge has disbelieved prosecution witnesses 1 to
5 holding that their evidence suffered from too many infirmities.
Be that as it may, although P.W.4-Mala has stated that she was
assaulted by accused 1-Shobharam, accused 6-Nandu,
accused 2-Asaram, accused 4-Balaji and accused 3-Gangaram, the
learned Sessions Judge was pleased to acquit the others named
and to convict accused 2 in view of the seizure of a stick from
accused 2-Asaram on which blood stains were noticed by the
Chemical Analyzer. The seizure panchnama is at Exh.91.
Again, the seizure is shown to be on production by Asaram of a
stick at 09:10 a.m. on 11.03.1998. This seizure also must be
discarded in view of the evidence of the panch to the seizure
P.W.10 which evidence is noted supra. Moreover, five bamboo
sticks were sent for Chemical Analysis at Exhibits 1, 2, 5, 6 and 7.
Blood is detected only on Exh.1. Again, there is no evidence on
record to prove that Exh.1 stick was the stick which according to
the prosecution was produced by accused 2-Asaram. P.W.4-Mala
is found to be by and large and unreliable witness. I do not
consider it safe to uphold the conviction of accused 2-Asaram on
the basis of the evidence of P.W.4-Mala, particularly as the others
named by her as assailants are acquitted and the reasons recorded
by the learned Sessions Judge for convicting accused 2-Asaram are
found to be untenable.
11] In conclusion, the appeal must succeed. The judgment
impugned is set aside and the accused 1 and 2 are acquitted of
offence punishable under section 324 and 323 of the IPC
respectively.
12] The bail bonds shall stands discharged.
13] The fine paid by the accused, if any, be refunded to
them.
14] The appeal is allowed.
JUDGE
NSN
