Bombay High Court
Rajkumar Ruprao Dandge vs The State Of Mah. Thr. Pso Amravati on 15 September, 2017
Bench: Swapna Joshi
1 Judg 150917 apeal 634.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.634 of 2003
Rajkumar Ruprao Dandge,
aged about 28 years, Occ.- Private service,
R/o.-Pathrot, Tahsil Achalpur, District Amravati
(presently in Jail). .... Appellant.
-Versus-
The State of Maharashtra,
through P.S.O. PS Pathrot, Tq. Achalpur,
District Amravati .... Respondent.
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Mr. V.S. Bapat, Counsel for appellant.
Mrs. Shamsi Haider, Additional Public Prosecutor for respondent/State.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 15
September, 2017.
ORAL JUDGMENT
This appeal has been preferred by the appellant (hereinafter
will be referred as 'the accused') against the judgment and order passed
by the learned Additional Sessions Judge, Achalpur in Sessions Trial
No.49 of 1995 delivered on 06-10-2003, whereby the learned trial Judge
had convicted the accused for the offence punishable under Section
304 Part II of the Indian Penal Code and sentenced to suffer rigorous
imprisonment for five years and to pay a fine of Rs.500/-, in default, to
suffer simple imprisonment for 15 days.
2 Judg 150917 apeal 634.03.odt
2] I have heard Mr. V.S. Bapat, the learned counsel for the
appellant/accused and Mrs. Shamsi Haider, the learned Additional Public
Prosecutor for the respondent/State. With their assistance, I have
carefully gone through the record of the prosecution case.
3] The facts leading to prefer this appeal can be summarised as
under :-
Deceased Tukaram was the father of complainant PW-1-
Maroti. He was residing at village Pathrot. The accused was also the
resident of the same village. On 21-07-1994, PW-1-Maroti went to
purchase kerosene oil from the shop of PW-6- Babarao. At that time, the
accused came there under the influence of liquor. It is alleged that, the
accused rushed on PW-1-Maroti with broken piece of glass. Hence,
PW-1-Maroti returned back to his house. The accused also followed him.
At the relevant time, father of the complainant namely Tukaram was sitting
in the 'ota' of his house. At the time of incident, Tukaram was aged about
70 years. It is the case of the prosecution that, the accused pushed the
father of the complainant from the 'ota' and therefore he fell down and he
received the head injury. The father of complainant namely Tukaram was
admitted in the hospital. It is alleged that, the accused had pelted stones
at the door of the complainant when he had closed the door and the
accused also tried to enter inside the house of the complainant.
4] At the relevant time, PW-7-PSI-Arjun was attached to
Pathort Police Station. He received the written report of complainant
Maroti and on the basis of the said report, he investigated the matter and
3 Judg 150917 apeal 634.03.odt
registered the offence. PW-7 visited the house of complainant Maroti. He
recorded the spot panchanama (Exhibit-16), so also he recorded the
statements of the witnesses. The accused was arrested by PW-9-
PSI-Ashok. He referred the dead body for post mortem and collected the
Post Mortem Report (Exhibit-37). After completion of the investigation,
chargesheet was submitted in the Court of learned JMFC. The case was
committed to the Court of Sessions. The learned trial Judge framed the
charge. The accused pleaded not guilty to the charges levelled against
him and claimed to be tried. On conducting the trial, on appreciation of
the evidence and hearing both the sides, the learned trial Judge was
convicted the accused as aforesaid. Hence, this appeal.
5] Mr. V.S. Bapat, the learned Counsel for the
appellant/accused, vehemently argued that the judgment passed by the
learned trial Judge is illegal and perverse inasmuch as the learned trial
Judge has not appreciated the evidence of the alleged eye witnesses;
PW-1-Maroti, PW-5-Madan and PW-6-Babarao, in right perspective & they
were not the truthful witnesses and in fact they did not witness the
incident as such. It is further submitted that the post mortem report is also
not clear on the point of internal injuries received by the deceased.
6] Mrs. Shamsi Haider, the learned APP contended that, the
learned trial Judge had properly considered the testimony of the victim as
well as the eye witnesses and rightly convicted the accused.
7] On considering the rival contentions of both the sides, it is
necessary to go through the evidence of the witnesses examined by the
4 Judg 150917 apeal 634.03.odt
prosecution. PW-1-Maroti deposed before the Court that, the incident
took place about 8 years back. At that time, he was in the shop for
purchasing kerosene and returned back to his house. The accused
started abusing him. He then closed the door of his house. His father
Tukaram was sitting on the 'ota' of the house. PW-1 heard the shouts of
the people who had gathered outside his house that the accused had
pressed the head of his father against the wall and thrown him in the
drain. Thereafter, the accused fled away from that place. Then, PW-1
came out of the house. He saw his father lying on unconscious condition.
The people from the locality called the Medical Officer. The doctor
advised to PW-1 to take his father at Government Hospital, Pathort.
Accordingly, Tukaram was taken to the Government Hospital at Pathrot.
Thereafter, he was shifted to Irvin Hospital at Amaravti, where he died on
the next day. PW-1 then lodged the complaint against the accused.
8] The testimony of PW-1 shows that there was an
improvement in his version about the fact that the accused had pressed
head of his father against the wall. It is further noticed that at the time of
incident PW-1 was not present at the place of incident and he was inside
the house and on hearing the commotions, he came outside the house
and then he saw his father lying at the place of incident. It is further
noticed that the complaint (Exhibit-24) does not reveal that, at the time of
incident, PW-1 was inside his house. The complaint demonstrates that
the PW-1 has witnessed the incident in respect of the accused pushing
Tukaram from the 'ota', as a result of which Tukaram sustained grievous
5 Judg 150917 apeal 634.03.odt
internal injuries. If that was the case, it is not clear, as to why PW-1 was
not declared hostile by the prosecution and cross examined. Thus, the
testimony of PW-1 does not inspire confidence and his testimony simply
indicates that he came to know from the people that the accused pushed
and pressed the head of his father against the wall and threw him in the
drain which is in the form of improvement. The testimony of PW-1 does
not inspire confidence with regard to the actual incident of accused
pushing deceased Tukaram from the 'ota' of the house and Tukaram
falling down on the drainage and receiving the injury.
9] Further the testimony of PW-5-Madan is an alleged eye
witness to the incident. His testimony reveals that at the time of incident,
he had gone to the shop of Babarao for purchasing kerosene oil. He
was standing in a queue. At that time the quarrel was going on between
PW-1- Maroti and Rajkumar (accused). According to PW-5-Madan, he
saw accused in front of the house of complainant. Deceased Tukaram
was sitting on the 'ota' of the house. Accused Rajkumar threw Tukaram
on the wall of the house and thereafter Tukaram fell down on the 'ota'.
Then he pushed Tukaram. Therefore, he fell down in the drain. PW-5
rushed to the spot. He lifted Tukaram. Tukaram was unconscious.
PW-5 noticed that the door of the house was closed. PW-5 asked Maroti
to open the door. However, Maroti himself became unconscious and fell
down. PW-5 called the doctor. The doctor advised them to take Tukaram
to the Government hospital. From there Tukaram was shifted to Irvin
Hospital, Amravati.
6 Judg 150917 apeal 634.03.odt
10] It is found that the testimony of PW-5 is full with
improvements. PW-5 made an improvement with regard to the fact that
the accused was standing in front of the house of Maroti. The accused
had thrown Tukaram on the wall of the house and Maroti became
unconscious and fell down. In this regard, the testimony of PW-1 does not
indicate that he fell unconscious when his father fell down on the 'ota' i.e.
after the incident. The testimony of PW-5 with regard to the fact that
accused was standing in front of the house of Maroti is also doubtful.
From the testimony of PW-5 it is not clear that the accused was present in
front of the house of the complainant. No doubt, PW-1 must have seen
the quarrel going on between Maroti and accused Rajkumar, when they
were in queue while purchasing kerosene oil from the shop of Babarao.
However, it is not clear whether the PW-5 had seen the accused standing
in front of the house of the complainant at the time of incident. Even the
testimony of PW-5 with regard to the fact that the accused had thrown
Tukaram on the wall of the house, appears to be doubtful. In this regard,
PW-5 stated that he does not remember whether he had stated before
the Police that the accused had thrown Tukaram on the wall of the
house. There appears to be an improvement in the statement of PW-5. It
is doubtful whether PW-5 had seen the actual incident of accused
pushing the deceased on well & throwing him in drain. The testimony of
PW-5 does not inspire confidence.
11] The prosecution relied upon the testimony of PW-6-Babarao
who is the kerosene vendor. According to him, the house of Maroti is at
7 Judg 150917 apeal 634.03.odt
a distance of 50 ft. from his shop. At about 4.30 to 5.00 pm he was
selling kerosene oil and 60 to 70 persons standing in the queue in front
of his shop. There were altercations between accused Rajkumar and
Maroti. Thereafter, Maroti went to his house. The accused also went to
the house of Maroti. Maroti went inside of his house and closed the door
of his house. Tukaram the father of Maroti was sitting on the 'ota' of his
house. The accused pushed Tukaram, therefore, the fell down from the
'ota'. PW-6 further stated that he has rushed to the spot. Tukaram was
taken to the hospital and then he was referred to Irvian Hospital,
Amravati. On the next day he died.
12] PW-6 made an improvement in his statement with regard to
the fact that the altercations took place between accused Rajkumar and
Maroti when they were standing in the queue. In this context, it is not
clear whether PW-6 had heard about the quarrels between the accused
and Maroti. It appears that since there were 60 to 70 persons standing in
a queue in front of the shop of PW-6, it is doubtful whether he had noticed
the quarrel going on between them. It is worthy to note that, in the cross
examination PW-6 stated that he had asked about the incident to Maroti
and Maroti informed him the incident. The said portion was marked as
'A' for identification. PW-6 could not give any reason as to why it is
recorded in his statement. The said version appears to be doubtful
whether he witnessed the incident or not. No reliance can be placed on
the evidence of PW-6 as he was not found to be a trustworthy witness.
13] Surprisingly, the son of the deceased whose complaint
8 Judg 150917 apeal 634.03.odt
indicates that he was an eye witness to the incident, has not stated
anything about the incident before the Court. He was not declared hostile
by the prosecution and his testimony before the Court reveals that at the
time of incident he was inside his house, the door of the house was closed
and he came to know about the incident when he heard the commotions
people asking him to open the door and informed him the incident. The
entire case of the prosecution appears to be doubtful. Even the testimony
of PW-5 and PW-6 do not inspire confidence & it is doubtful whether they
had witnessed the incident.
14] The post mortem report no doubt depicts that the cause of
death was 'shock due to head injury'. However, since the prosecution
has not examined Medical Officer and even the Medical Certificate of the
deceased who was alive for a day, has not been produced by the
prosecution. It is not clear as to what was the exact injury caused to the
deceased. However, as the defence has not disputed the cause of
death, it can be said that the deceased died due to head injury. It is,
however, not clear as to how the head injury was caused to the deceased
and whether it was caused due to pushing the deceased on the wall or by
falling down from the 'ota'. In view thereof, the entire case of the
prosecution is under the shadow of doubt.
15] In view of above, it is held that the prosecution has failed to
prove its case beyond reasonable doubt. In these circumstances, the
benefit of doubt is to be given to the appellant/accused. The learned trial
Court has not properly evaluated the evidence led by the prosecution. In
9 Judg 150917 apeal 634.03.odt
view thereof, the judgment and order passed by the learned trial Judge,
needs to be quashed and set aside. Hence, the following order:-
O r d e r
(a) Criminal Appeal No.634 of 2003 is allowed.
(b) The judgment and order delivered by the learned
Additional Sessions Judge, Achalpur in Sessions Trial
No.49 of 1995 delivered on 06-10-2003, is quashed
and set aside.
(c) The appellant is acquitted of the offence under
Section 304 Part II of I.P.C.
(d) The bail bond furnished by the appellant stands
cancelled.
(e) The fine amount, if any, deposited by the appellant be
refunded to him, if not withdrawn.
(f) Muddemal property be dealt with as directed by Trial
Court after the appeal period is over.
JUDGE
Deshmukh
