Tatyarao Ashruji Bangar vs The State Of Mah.Thr.Pso Washim
2018 Latest Caselaw 1040 Bom

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


                     CRIMINAL APPEAL NO.470 OF 2004


 Tatyarao s/o. Ashruji Bangar,
 aged bout 48 years,
 Occupation : Cultivator,
 R/o. Shivni-Delapur,
 Tahsil Mangrulpir, District Washim                                     ...APPELLANT


                           ...V E R S U S...

         
 The State of Maharashtra,
 Through Police Station Officer, 
 Police Station, Asegaon,
 Tahsil Mangrulpir, District Washim,                                  
        ...RESPONDENT

 -------------------------------------------------------------------------------------------
               Mr.A.D. Giradkar holding for Mr. A.P. Tathod, 
                                counsel for appellant.
     Mr. N.H. Joshi, Additional Public Prosecutor for respondent.
 -------------------------------------------------------------------------------------------

                                           CORAM:    ROHIT B. DEO, J. 

DATE OF DECISION 29.1.2018

ORAL JUDGMENT

The appellant is aggrieved by the judgment and order

dated 20.7.2004, delivered by the Adhoc Additional Sessions

judge, Washim, in Sessions Trial 46 of 2002, by and under which,

the appellant (hereinafter referred to as 'the accused") is convicted

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for offence punishable under section 325 of the Indian Penal Code

("IPC" for short) and is sentenced to suffer rigorous imprisonment

for three years and to payment of fine of Rs. 1,000/- and is further

convicted for offence punishable under section 328 of IPC and is

sentenced to suffer rigorous imprisonment for a period of five

years and to payment of fine of Rs. 2,000/-.

2) Heard Shri. A.D. GiradKar holding for Shri. A.P.

Tathod, the learned counsel for the accused and Shri. N. H. Joshi,

the learned Additional Public Prosecutor for the respondent /

State.

3) Kisan Bhagat (PW 1 ) lodged oral report dated

29.11.2001, the gist of which is thus:-

Kisan purchased 1 acre of agricultural land from accused.

Kisan entered into an agreement to purchase additional 1 acre of

agricultural land of the accused and took possession of the said

land after making payment of Rs. 50,000/- to the accused and

sowed wheat.

The incident occurred on 28.11.2001. Kisan and the

accused went to the field to water the wheat crop at 10.00 p.m.

The accused prepared tea in the field and offered tea to Kisan,

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who took a sip, found something wrong in the taste and

confronted the accused who answered that the proportion of tea

powder was in excess. Kisan had 1 to 2 sips of tea, experienced

nausea and vomited. The vomit smelt like that of poison which

made Kisan to vomit further. The accused assaulted Kisan with a

iron pipe on the left arm and forehead. Kisan caught pipes in his

hands and did not let go the pipe come and the accused went

away.

4) On the basis of the said report, Police Station,

Asegaon registered offence punishable under section 328, 325 and

323 of IPC. Investigation ensued upon completion of which

charge sheet was submitted in the Court of Judicial Magistrate

First Class, Mangrulpir who committed the proceedings to the

Sessions Court. The learned Sessions Judge framed charge under

section 328, 325 and 323 of IPC. The accused abjured guilt and

claimed to be tried. The defence of the accused is total denial and

false implication.

5) The injured Kisan Bhagat is examined as PW 1. He

states that at 8.00 p.m. he and the accused went to the field. The

accused told PW 1 that while coming to Shivni by S.T. Bus, he

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could lay his hands on quarter bottles of country liquor left behind

by somebody. Accused offered one bottle of country liquor to PW

1. PW 1 thereafter went to the house of Panjabrao Bhendekar for

ritualistic dinner on the occasion on 13th day of demise of

Mathurabai. PW 1 did not consume liquor offered by accused. In

the next breath, he states that on the day of the incident he had

been to the field of one Tatyarao along with accused to water

Tatyarao's crop. While PW 1 was watering the crop, the accused

prepared two cups of tea and offered one cup of tea to PW 1.

After having one sip, PW 1 found the taste bitter and the

explanation of the accused was that his daughter added tea in

excess. PW 2 took second sip and threw away the tea. PW 1 and

the accused went to sleep. PW 1 got up to check the watering of

the crop and started feeling giddy. PW 1 started vomiting and had

loose motions, his tongue became heavy due to which he was not

in a position to talk. The accused asked him to go back to sleep,

PW 1 declined and conveyed to the accused that he intended to go

to a doctor for medical treatment. It was when PW 1 was

proceeding towards village that the accused started following him

with iron pipe in hand. The accused came from behind and

inflicted three blows of the iron pipe on the head of PW 1. It is

also the deposition that PW 1 attempted to keep away third blow

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with left hand and sustained a fracture. PW 1 states that when the

accused was about to inflict the fourth blow of the pipe, PW 1

snatched away the pipe with right hand and the accused started

running away. PW 1 states that accused started pelting stones one

of which hit his right hand. PW 1 states that the right hand was

swollen. PW 1 states that he went to his house. The neighbours

took him to Police Station. He was not in a position to speak and

vomited in the police station. He was referred to Mangrulpir Rural

Hospital and then to Civil Hospital, Akola where he was

hospitalized for six days.

6) A close scrutiny of the evidence of PW 1 would reveal

that the deposition is, on many material aspects, at variance with

the First Information Report. The evidence of PW 1 that he

suffered three iron pipe blows on the head is not supported by the

medical evidence. The prosecution has not adduced any medical

evidence whatsoever to prove that PW 1 suffered bleeding head

injury due to iron pipe blows inflicted by the accused. The

prosecution has not produced on record the medical papers

throwing light on the treatment received by PW 1 in the hospital

although PW 1 claims to have been hospitalized for six days. The

only injury certificate which is produced on record is Exh. 26

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dated 29.11.2001. Exh. 26 is proved by PW 6 - Dr. Rajkumar

Rathod. The doctor admits that he did not examine PW 1. PW 6

has deposed that the x-ray examination was conducted by the

radiologist in Akola Civil Hospital and the ex-ray plates were send

to Rural Hospital, Mangrulpir to which the witness is attached.

PW 2 does not speak of head injury. He is examined to prove that

the x-ray plates forwarded to him by the Akola Hospital which

reveal fracture of forehead bone.

7) In so far as version of PW 1 that he suffered bleeding

head injuries due to assault launched by the accused with iron

pipe, the deposition of PW 3 - Madhukar Bhagat and PW 4 -

Sukhdeo Bhagat that the accused came home with bleeding

injuries on head, is an omission which is duly proved in the cross

examination of PW 5 - Investigating Officer. I have no hesitation

in recording a finding that the version of PW 1 that he was

assaulted with iron pipe is extremely doubtful.

8) Ordinarily, the evidence of an injured witness must be

given due weightage. However, PW 1 is not a witness who can be

implicitly trusted. It is brought out in the cross examination that

the evidence of PW 1 is marred by several omissions, some of

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which are significant and material. The omissions are duly

proved. It is already noted that the version of PW 1 that he was

assaulted with iron pipe is improbable. In so far as the evidence of

PW 6 - Dr. Rajkumar Rathod is concerned, the x-ray plate is not

produced, nor is the radiologist examined. PW 6 has admittedly

not examined PW 1 Kisan. His evidence that x-ray plates were

received from Akola Civil Hospital and he is deposing on the basis

thereof, in my opinion, takes the case of the prosecution no further

since a finding that the accused suffered fracture can not be

recorded on the basis of the deposition of PW 5 - Dr. Rathod.

9) The spot panchanama is Exh. 14. The only seizure

referred to in the spot panchanama is that of a green coloured

scarf and vomit mixed earth. Exh. 16 is the seizure memo which

records that the accused while in police custody produced the

following articles:-

"(i) Pocket containing about 2 grams of rat poison.

(ii) German tea pot, emitting smell of poison.

(iii) A pair of cup and saucer of clay."

Strangely, PW 5 Kacharu Bajad - the Investigating Officer

has deposed thus:

"First of all, at 7.00 a.m. I visited the spot of incident, in

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the field S.No. 119 and prepared panchanama of the spot. The spot panchanama, Exh. 14 now shown to me bears my signature and signatures of two panchas. The complainant had made vomiting on the spot of incident. I therefore, seized simple earth and vomiting mixed earth from the spot of incident, by making a seizure panchanama. A wrapper of rat killing poison was also lying on the spot, one iron pipe was also lying there. A tea pot, one cup and saucer were also lying on the spot. I seized all the aforesaid articles from the spot under the same seizure panchanama. The seizure panchanama now shown to me bears my signature and signatures of two panchas. It is marked as Exh. 16. The format seizure panchanama is marked as Exh. 15. It also bears my signature and signatures of two panchas."

The evidence of PW 5 about the seizure of wrapper of rat

killing poison, one iron pipe, tea pot, cup and saucer from the spot

is inconsistent with and is indeed falsified by Exh. 16. Be it noted

that PW 2 - Shankar Sanap examined as a witness to spot

panchanama did not support the prosecution and the other panch

was not examined by the prosecution. The iron pipe allegedly

seized is not sent for chemical analysis. I am impelled to record a

finding that the investigation was not only shoddy but was unfair

bordering on dishonest.

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 10)              I have already noted that other than the testimony of

PW 1 Kisan, there is absolutely no evidence whatsoever to prove

that the accused attempted to poison Kisan by assaulting him with

iron pipe.

11) I do not find PW 1 Kisan to be a truthful or

trustworthy witness and I am not persuaded to permit the

conviction to rest on his testimony. I have already noted that

prosecution witnesses PW 3 and PW 4 who state that they saw the

bleeding head injury can not be trusted since statement is a proved

omission. No medical evidence is produced on record to prove

that PW 1 Kisan suffered a head injury. PW 5 Dr. Rathod who

issued injury certificate Exh. 26 is examined only to prove the

fracture of the forearm. I have already recorded a finding that

evidence of PW 6, who has not examined PW 1 Kisan, is not

sufficient to record a finding that Kisan suffered fracture. The

prosecution has failed to establish the offence beyond reasonable

doubt.

12) The judgment and order dated 20.7.2004, passed by the

Adhoc Additional Sessions judge, Washim in Sessions Trial 46 of

2002, is set aside.

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 13       The accused is acquitted of offence punishable under section

 325 and 328 of IPC.



 14       His bail bond stands discharged and fine paid, if any, shall

 be refunded.



 15       The appeal is allowed. 


                                                       JUDGE




 Belkhede, PA