State Of Maharashtra vs Raju S/O Uttamrao Kapse And 2 ...
2018 Latest Caselaw 1118 Bom

 apeal616.02+.J.odt                  1




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


                     CRIMINAL APPEAL NO.616 OF 2002

 1]       Raju s/o Uttamrao Kapse
          Aged about 27 years,
          Cultivation.

 2]       Uttam s/o Pundlikrao Kapse
          Aged about 58 years,
          Cultivation.

 3]       Sambha s/o Pundlikrao Kapse
          Aged about 45 years,
          Cultivation.

          All residents of Kutki,
          Tah. Hinganghat, Dist. Wardha.           ....... APPELLANTS

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

          The State of Maharashtra through
          PSO Wadner, Dist. Wardha.                ....... RESPONDENT


                                    WITH

                      CRIMINAL APPEAL NO.78 OF 2003

          State of Maharashtra, through
          Police Station Officer, P.S. Wadner, 
          Dist. Wardha.                         ....... APPELLANT

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

 1]       Raju s/o Uttamrao Kapse,
          Aged about 23 years.



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  apeal616.02+.J.odt                        2




 2]       Uttam s/o Pundlikrao Kapse,
          Aged about 54 years.

 3]       Sambha s/o Pundlikrao Kapse,
          Aged about 41 years.

          All R/o of Kutki, Tah. Hinganghat,
          Dist. Wardha.                                     ....... RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri R.M. Patwardhan, Advocate for Appellants. [Cri. Appeal 
 616/2002]
 Shri A.V. Palshikar, APP for Respondent/State. [Cri. Appeal 
 616/2002]
 Shri A.V. Palshikar, APP for Appellant/State. [Cri. Appeal 
 78/2003]
 Shri R.M. Patwardhan, Advocate for Respondents. [Cri. Appeal 
 78/2003]
 -------------------------------------------------------------------------------------------


 CORAM:  ROHIT B. DEO, J. 


 DATE OF RESERVING THE JUDGMENT                                      :      31.10.2017
 DATE OF PRONOUNCING THE JUDGMENT                                    :      30.01.2018

 JUDGMENT :

1] The appellants in Criminal Appeal 616/2002 seek to

assail the judgment and order dated 23.10.2002 passed by the 1 st

Adhoc Additional Sessions Judge, Wardha in Sessions Trial

45/1998, by and under which, the appellants (hereinafter referred

to as the accused) are convicted for offence punishable under

Section 324 and 325 read with Section 34 of Indian Penal Code

('IPC' for short) and are sentenced to suffer rigorous

imprisonment for two years and to payment of fine of Rs.500/- for

offence punishable under Section 325 read with Section 34 of IPC

and are further sentenced to suffer rigorous imprisonment for one

year and to payment of fine of Rs.500/- for offence punishable

under Section 324 read with Section 34 of the IPC.

Criminal Appeal 78/2003 is preferred by the State which contends

that the accused deserve to be convicted for offence punishable

under Section 307 of the IPC.

2] The case of the prosecution as is unfolded during the

trial is thus:

Accused 1 Raju Kapse, his father accused 2 Uttam

Kapse and Uncle Sambha Kapse and the injured victim Pandurang

Mohod are residents of the same locality in village Kutki, Tahsil

Hinganghat, District Wardha. The families of the accused and the

injured Pandurang were on inimical terms, in view of a dispute

pertaining to agricultural land.

3] The incident occurred on 28.11.1997.

Pandurang Mohod had gone to Nagpur to repair an electric motor.

His elder brother Ramesh and younger brother Dilip and father

Bhaurao had gone to the agricultural field. Injured Pandurang

returned from Nagpur and was in the court-yard of his house

attending to bullocks. In the interregnum, Bhaurao Mohod had

returned from the agricultural field at 05:00 p.m. and Ramesh

was back with bullock-cart loaded with cotton at 07:45 p.m.

Accused Raju and Uttam swooped on the court-yard of the injured

and bodily lifted the injured Pandurang and brought him in the

court-yard of their house between 08:00 p.m. to 08:30 p.m.

Accused Sambha was already present in the court-yard. The elder

brother of injured Pandurang, Ramesh was informed by his wife

Chhaya and sister-in-law Mira that Pandurang was taken by the

accused to their court-yard. Ramesh followed the accused to their

court-yard and requested them to let go Pandurang. The accused

did not pay any heed and assaulted Pandurang by fists and kick

blows and then by lathi. Accused Sambha fetched axe and sword

from the house and handed the weapons to accused Raju and

Uttam while retaining the lathi. The accused assaulted Pandurang

Mohod on his head, shoulder, hands and thigh. Accused Raju who

was yielding the sword inflicted severe blows on the ankle of both

the legs of injured Pandurang and the injuries suffered were so

serious that both the feet from below the ankle portion were

attached to the body only with the skin. Chhaya Mohod who

reached the scene tried to intervene, she was shoved and beaten

by the accused and she sustained injuries. Dilip Mohod the other

brother of the injured returned from the field and was asked by

Ramesh, sister Mira and sister-in-law Chhaya to keep away from

the scene of the incident. Ramesh Mohod along with his wife and

father reached Police Station Wadner and reported the incident.

PSI Anil Kinge with staff and Ramesh Mohod and others reached

the scene of the incident, Pandurang was referred to Rural

Hospital, Wadner and was examined by Dr. Gowardhan Dudhe.

Pandurang was then referred to Mahatma Gandhi Institute of

Medical Sciences, Sewagram for further treatment. The oral report

lodged by Ramesh was reduced to writing and crime 100/1997

was registered in Police Station Wadner.

PSO Shri Anil Kinge prepared the spot panchnama,

seized axe, lathi from the spot, a large stone stained with blood,

earth mixed with blood, plane earth, bones and red colour bangles

were also seized from the spot. The house of accused Raju and

Uttam was searched and a lungi and dhotar stained with blood

were seized. A baniyan was seized from accused Uttam and

another baniyan was seized from Sambha, which had blood stains.

The clothes of victim Pandurang were seized.

4] The accused were arrested on 29.11.1997.

Accused Raju and accused Uttam gave a memorandum of

admission while in custody pursuant to which the disclosure

statement a sword produced by Raju was seized from the heap of

turati lying in the lane adjacent to the house of the accused Raju.

Pursuant to the disclosure statement made by accused Sambha

lathi was seized from his cattle shed.

The dying declaration of injured Pandurang was

recorded, the seized articles were sent for chemical analysis and

the C.A. report was obtained. The culmination of investigation led

to submission of the charge-sheet in the court of Judicial

Magistrate First Class, Hinganghat, who committed the

proceedings to the Sessions Court. The learned Sessions Judge

framed charge under Section 307 read with Section 34 of the IPC,

the accused abjured guilt and claimed to be tried in accordance

with law. The defence of the accused was that the injured

Pandurang and his family were not on good terms with the

villagers since they were in the habit of harassing the villagers.

Injured Pandurang Mohod was under the influence of liquor, he

picked up a quarrel with one Vitthal Kapse and was assaulted by

the villagers, is the defence.

5] The prosecution examined as many as ten witnesses

to bring whom the charge who are:

                   [i]     P.W.1   Namdeo   Nawghare   at   Ex.17   (a   panch
                           witness).

                   [ii]    P.W.2   Sudhakar   Ghodam   at   Ex.24   (a   panch
                           witness).

[iii] P.W.3 Ramesh Mohod at Ex.29 (elder brother of victim Pandurang.

                   [iv]    Pandurang Mohod at Ex.32 (victim).

                   [v]     P.W.5 Naresh Ghode at Ex.33 (a panch witness).

                   [vi]    P.W.6 Narayan Meshram at Ex.34 (a panch).

[vii] P.W.7 Chhaya Mohod at Ex.40 (wife of P.W.3 Ramesh).

[viii] P.W.8 Dilip Mohod at Ex.41 (younger brother of victim).

[ix] P.W.9 Doctor Gowardhan Dudhe at Ex.57 and

[x] P.W.10 P.S.O. Shri Anil Kinge at Ex.63 of police station, Wadner (an investigating officer).

6] P.W.1 Namdeo Nawghare the panch to the

memorandum statement under Section 27 of the Indian Evidence

Act given by the accused Raju and accused Sambha did not

support the prosecution. P.W.1 however, admits signing on the

memorandum statements Exh.18 and Exh.20 given by accused

Raju and accused Sambha respectively. P.W.2 Sudhakar Ghodam

the panch to the seizure of the blood samples of the accused did

not support the prosecution although he admitted his signature on

the seizure panchnama Exh.25.

7] P.W.3 Ramesh Mohod, who is the informant has

deposed that the incident took place at 08:00 p.m. or thereabout

on 28.11.1997. P.W.3 states that when his sister Mira and wife

alerted him that the accused Raju and Uttam had bodily lifted and

carried the injured Pandurang to their court-yard he rushed

towards the residence of accused Uttam. Accused Uttam, who was

yielding an axe. Accused Sambha was armed with a lathi and

accused Raju armed with a sword. The accused were assaulting

Pandurang by fists and kick blows and lathi. Pandurang was

assaulted on shoulder, thigh and hand by lathi. P.W.3 states that

he was also dealt a lathi blow on the ear by accused Sambha

which caused him to fall down. P.W.3 states that his wife and

sister reached the spot and in the meanwhile, Dilip also came back

from the agricultural field. P.W.3 states that he told Dilip that

accused persons have forcibly taken Pandurang to their

court-yard and are assaulting Pandurang. P.W.3 then states that

he lodged the report at Police Station Wadner (Exh.30).

The statement that accused Uttam and accused Raju were armed

with axe and sword respectively is brought on record as an

omission. The statement that Pandurang was inflicted by lathi

blow on shoulder and thigh is again an omission. It is brought on

record that between the house of the accused and the family of

the injured there is house of Madhaoji. P.W.3 denies the

suggestion that there was darkness in the locality at the time and

on the day of the incident. P.W.3 states that there was

illumination of electric bulb. A suggestion is put to the witness

that when he left the scene to lodge the report the injured

Pandurang was lying in the Chhapri of accused Uttam. P.W.3

denies the suggestion and volunteers that the injured Pandurang

was lying in the front court-yard of the house of the accused

which was illuminated by an electric bulb. He further states that

even in the court-yard of his house there was illumination of

electric bulb. The witness admits the inimical relations between

the family of the accused and the injured Pandurang. He denies

the suggestion that the injured Pandurang abused one Vitthal

Kapse, and the villagers who were enraged assaulted Pandurang.

P.W.4 Pandurang Mohod is the injured vicitim.

His deposition is that accused Raju and accused Uttam came to his

court-yard, bodily lifted and forcibly took him to the front

court-yard of their house. Accused Raju and Uttam started

inflicting fists and kick blows and accused Sambha dealt lathi

blow. Accused Sambha fetched an axe and a sword from his house

and handed over the axe to accused Uttam and the sword to

accused Raju. Accused Uttam dealt an axe blow on the right leg,

accused Sambha dealt lathi blow on the left hand and when he

fell down on the ground accused Raju delivers successive sword

blows on the legs, with the result that both the legs from below

the ankle portion were amputated. The omissions which are

brought out in the cross-examination are not significant enough to

dent the credibility of the witness. Illustratively, the omission of

the word "right" in referring to leg and the omission that Sambha

dealt lathi blow, is not significant much less fatal. P.W.4 injured,

who was the victim of a brutal and merciless assault, is not

expected to narrate each and every detail pertaining to the nature

of the assault or the role played by the individual accused.

The testimony of the injured Pandurang is confidence inspiring.

The injured Pandurang was suggested that he picked up a quarrel

with one Vitthal Kapse under the influence of liquor and abused

Vitthal Kapase in filthy words leading to the villagers physically

assaulting the injured witness, which suggestion is denied.

P.W.5 Naresh Ghode proves the memorandum

statement under Section 27 of the Indian Evidence Act given by

accused Raju (Exh.18) and the seizure of the sword pursuant to

the said statement. P.W.5 also proves the memorandum statement

given by accused Sambha (Exh.20) and the seizure of the lathi

from the house of the said accused. P.W.6 Narayan Meshram, was

examined to prove the spot panchnama Exh.35 and the seizure of

the weapons and other articles from the spot. P.W.7 Chhaya

Ramesh Mohod states that accused Raju and Uttam bodily lifted

and carried the injured Pandurang to the court-yard of their house

and she alerted her husband Ramesh. She states that she and Mira

followed her husband Ramesh to the court-yard of the house of

the accused and witnessed the assault on the injured Pandurang.

The assault was by means of fists and kick blows and lathi. P.W.7

states that when she tried to intervene she was assaulted by fists

and kick blows and the accused also assaulted Mira and her

husband Ramesh. She states that she along with her husband

Ramesh and Mira returned to their house, in the meanwhile Dilip

reached home and was asked to stay away from the scene of

occurrence. The cross-examination of P.W.7 would reveal that

Chhaya did not witness the entire incident and states that it was

Mira and Dilip who informed her that Sambha fetched the axe and

sword from the house and handed them to accused Raju and

Uttam who launched the brutal assault leading to the amputation

of portion of both feet of the injured Pandurang below the ankle.

However, the suggestion that there was darkness and that the

police were equipped with torch is denied and the witness

categorically states that the court-yard of the accused Uttam was

illuminated by an electric bulb and that even the court-yard of the

residence of the injured had an electric bulb which was on. P.W.8

Dilip Mohod claims to have witnessed the incident from an

opening in the pithunda shrubs from the court-yard.

P.W.9 Dr. Gowardhan Dudhe who examined the

injured Pandurang proves the medical report Exh.47 and states

that injury 3, in ordinary course could cause the death of a person.

P.W.9 describes the injuries which he notice thus:

(1) Incised wound on head on right side above the ear having shape of plus (+) of the size of the vertical arm of plus shape was -3" x ½" x ½". The size of the horizontal arm of the plus shaped injury was of the size of 2" x ½" x ½" bleeding was present.

(2) Swelling of left arm having size 4" x 5".

The underlying fracture of humerus is suspected, which will be confirmed after X-ray examination.

(3) Amputation of foot that means from the ankle and above the ankle joint of both legs. Only some tags of skin are attached. Bones are separated of

both the sides (Right and left). At that time patient was in shock. He is semi conscious and there was profuse bleeding. General condition was very poor. The patient was admitted in the hospital. The patient was referred to Mahatma Gandhi Institute Medical Sciences, Sewagram.

The above injury Nos.(1) and (3) might have been caused by hard and sharp object. The age of injuries was 3 to 4 hours of duration. The injury No.(2) might have been caused by hard and blunt object. As the X-ray machine in Wadner hospital was not in working condition the patient was referred to Sewagram hospital for further opinion and for X-ray examination.

The injury No.(1) would heal within 8 to 10 days and so far as the injuries Nos.(2) and (3) were concerned, the healing time may be sought from the Expert.

The identification mark of the patient that time was mole on floating rib on right side.

2. After cleaning of the wounds of the patient, three more injuries were noticed by me. Those injuries were examined and treated by me.

(4) Swelling on face on on left side below ear left side, having size 5" x 3½". There may be haematoma underlying it.

(5) Incised wound on scalp just above fore-head in centre, which is vertical having size 2"x½"x½".

(6) Swelling on fore-head having size 1"x1" in centre part.

The injuries Nos.(4) and (6) might have been caused by hard and blunt object within 3 to 4

hours duration and it will heal within 7 to 8 days if no complication would arise. Injury No. (5) might have been caused by hard and sharp object within 3 to 4 hours duration and it will heal within 8 to 10 days if no complication would arise.

8] P.W.9 has also proved the injury report Exh.58 issued

after examining the witness Chhaya and the injuries described are

thus:

(1) Swelling on right fore-arm 3" away from the wrist of the size of 1" x 1".

(2) Abrasion on chest on right side 2½" below right clavical of the size 2½" x 2" and skin deep. The injury No.(1) could have been caused by hard and blunt object and injury No.(2) could have been caused by hard and rough object within 18 to 24 hours duration and both injuries would heal within 2 to 3 days if no complications would arise.

The witness has denied the suggestion that in the

absence of report from Radiologist and Orthopedic Surgeon it was

not possible for him to opine that the injury suffered by

Pandurang would have caused death in ordinary course.

P.W.10 Anil Kinge is the Investigating Officer. It is

brought on record that he did not take entry in the station diary of

the information received from Ramesh Mohod.

 9]               The   defence   has   examined   as   many   as   three

 witnesses.



 10]              D.W.1   Manoj   Choudhari   attached   to   the   office   of

Sub-Divisional Police Officer, Hinganghat was examined to prove

that an application submitted by one Uttam Kapse was sent to

Superintendent of Police, Wardha office for destruction as per

rule. D.W.1 proved the destruction report as regards the papers

(Exh.76 and 77). D.W.2 Jayant Deshpande, then Clerk attached to

the Superintendent of Police, Wardha was examined to prove that

the application submitted by the villagers of village Kutki was

destroyed in accordance with the rule. The evidence of both

D.W.1 and D.W.2 is however, of little significance since it is not

brought on record as to what was the nature of the complaint and

against whom the complaint was preferred by the villagers.

11] D.W.3 Ramkrishna Pangul has deposed that the

family members of the injured Pandurang are not law abiding and

that on 14.02.1996 the villagers lodged a report against them

which was scribed by D.W.3 Ramkrishna Pangul. Accused Raju

was assaulted by the members of the Mohod family on 11.03.1996

and villagers were threatened by the family of the injured.

12] Shri Patwardhan, the learned counsel for the accused

submits that the evidence on record is incompatible with the guilt

of the accused. He would submit that the informant Ramesh has

not seen, even if the evidence is to be taken at face value, the

assault with axe and sword on injured Pandurang.

However, the fact that the First Information Report lodged by

Ramesh makes a reference to the assault by axe and sword

renders the prosecution version suspect. Ramesh claims to have

left the scene of occurrence to go to the Police Station to lodge the

report and he does not speak of accused Sambha having fetched

the weapons from the house and having handed over the same to

the accused Raju and accused Uttam. The learned counsel would

further submit that P.W.7 Chhaya has also not witnessed the

assault with axe and sword and has deposed on the basis of

information received from Ramesh. The evidence of P.W.8 Dilip is

attacked by the learned counsel for the defence as absolutely

unreliable. The evidence that Dilip witnessed the incident from

07:30 to 08:30 p.m. his own court-yard must be discarded as

improbable and unreliable, is the submission. The spot

panchnama makes no reference to source of light is the next

submission. The defence that the injured Pandurang picked up a

quarrel with one of the villagers under the influence of liquor and

the enraged villagers assaulted the injured Pandurang is

probablized on the touchstone of probabilities is the submission.

13] The first information report is not consistent with the

deposition of the informant Ramesh P.W.3. Shri Patwardhan is

justified in the submission that if the First Information Report

Exh.31 was recorded immediately after P.W.3 went to the Police

Station it could not have the contained the details of assault by

axe and sword since P.W.3 Ramesh states that he left the scene of

occurrence to go to the Police Station. P.W.3 Ramesh has deposed

only as regards the assault by fists, kicks and lathi and has not

spoken of he witnessing the assault by axe and sword.

14] The printed F.I.R. Exh.31 reveals that the offence was

reported at 10:45 p.m. However, in the teeth of the implicitly

reliable testimony of the injured, the infirmity pointed out by

Shri R.M. Patwardhan would not per se dent the credibility of the

prosecution case nor would the infirmity suggest false implication.

It is obvious, that when Ramesh rushed to the Police Station, the

anxiety was to immediately bring the police on the scene to save

his brother who had been physically carried by the accused to

their court-yard. The First Information Report is obviously

recorded after the incident since the report speaks of the assault

by axe etc. which assault is obviously not witnessed by the

informant Ramesh.

15] I have given my anxious consideration to the evidence

on record in the light of the submissions canvassed and the

reasons recorded by the learned Sessions Judge, and having done

so, I am convinced that the offence punishable under section 326

of IPC is proved beyond reasonable doubt.

16] P.W.4 Pandurang Mohod is the victim of the brutal

and gruesome assault due to which both legs from below the

ankle had to be amputated. The court must always be mindful

that ordinarily an injured person is not likely to inculpate the

innocent and to exculpate the guilty. The injuries lend an

assurance to the prosecution version about the presence on the

scene of occurrence of the injured. The testimony of an injured, is

therefore placed on a higher pedestal than that of other witnesses.

The testimony of injured P.W.4 is implicitly reliable, credit worthy

and confidence inspiring. The testimony is not shaken in the

cross-examination. No serious infirmity or embellishment is

brought on record by the defence. It is true, as submitted by the

learned counsel Shri R.M. Patwardhan that the other prosecution

witnesses who are examined as eye witnesses have either not

witnessed the assault or have witnessed only a part of the incident

or prelude to the incident. P.W.3 Ramesh concededly left to lodge

the report before P.W.4 was assaulted with axe and sword.

However, P.W.3 has witnessed the accused assaulting P.W.4 by

fists, kick blows and lathi in the court-yard of the accused. It was

then, that he left to seek police help. P.W.7 Chhaya Ramesh

Mohod is a witness to accused Raju and Uttam bodily lifting and

carrying Pandurang to the court-yard of their house. It is P.W.7

who alerted her husband Ramesh P.W.3. She is also a witness to

the assault by means of fists, kicks and lathi. She has obviously

not witnessed the entire incident and her evidence as regards the

axe and sword assault is hearsay. However, she can be believed to

the extent that the accused Raju and Uttam physically carried

P.W.4 Pandurang to their court-yard and launched an assault with

fists, kicks and lathi. She has further deposed that the court-yard

of the accused and that of the injured P.W.4 were both

illuminated by an electric bulb. P.W.8 Dilip Mohod claims to have

witnessed the entire incident from an opening in the pithunda

shrubs from the court-yard of his house. His testimony is seriously

attacked by the learned counsel for the accused who contends that

having regard to the location of the houses of the complainant and

the accused it is highly improbable that P.W.8 Dilip Mohod could

have witnessed the incident much less in its entirety.

However, even if the evidence of P.W.8 Dilip is kept out of the

consideration, the testimony of injured P.W.4, which is more than

amply corroborated on the genesis of the incident and the initial

assault by fists, kicks and lathi, by P.W.3 Ramesh and P.W.7

Chhaya, is sufficiently cogent and reliable to satisfy the conscious

of the court that the offence against the accused is proved beyond

reasonable doubt.

17] Criminal Appeal 78/2003 is preferred by the State

contending that the offence proved is under section 307 of the

IPC. The assault was indeed inhuman and the intention was

clearly to main and disfigure P.W.4 Pandurang for life.

However, it is difficult to hold, with certainty, that the requisite

intention or knowledge contemplated under section 307 of IPC

can be attributed to the accused. The judgment and order

impugned to the extent the accused are convicted only under

section 325 of the IPC read with section 34 of IPC thereof, must

however, be set aside. The accused are liable to be convicted for

offence punishable under section 326 of the IPC read with section

34 of IPC thereof.

18] In so far as sentence is concerned, although the

learned counsel for the accused did emphasis on the fact that the

incident occurred about 30 years ago, the assault is too brutal and

the conduct of the accused too depraved to deserve any leniency.

The accused are sentenced to suffer rigorous imprisonment for

four years for offence punishable under section 326 of the IPC

read with section 34 of IPC thereof.

19] Criminal Appeal 616/2002 is dismissed. Criminal

Appeal 78/2003 is partly allowed.

20] The accused be taken into custody forthwith to serve

the sentence.

21] The accused shall be entitled to the benefit of Section

428 of the Code of Criminal Procedure.

22] Police Station Wadner, Tahsil Hinganghat, District

Wardha is directed to file a compliance report in the registry of

this court, within 15 days from the receipt of the copy of the

judgment. If the compliance report is not submitted, list the

disposed of appeal under the caption order matters after three

weeks. The registry to do the needful.

JUDGE

NSN