Shrirang Dhondiba Girnare vs The State Of Maharashtra And ...
2021 Latest Caselaw 2664 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                           BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO.781 OF 2018

                          SHRIRANG DHONDIBA GIRNARE
                                    VERSUS
                     THE STATE OF MAHARASHTRA AND OTHERS

Mr.Akash D.Gade, Advocate for the appellant.
Mr.S.G.Sangle, APP for respondent No.1.

Mr.K.G.Gaikwad h/f Mr.P.P.More, Advocate for respondent Nos. 2 to 4.

( CORAM : RAVINDRA V. GHUGE AND B.U.DEBADWAR, JJ.)

DATE : FEBRUARY 10, 2021

PER COURT :

1. The appellant is the original complainant in FIR dated 12/06/2012

Exhibit 28 stating that on 10/06/2012 in between 3.00 to 3.30 p.m., he was

engaged in agricultural operations in his field Block no.307 situated at

village Koda. Accused Nos. 1 and 2 are his nephews and accused no.3 is the

wife of accused no.1. Their field is adjoining to the appellant /

informant's field. The prosecution has put forth a case in Sessions Case

No.180/2012 that the accused assaulted the informant on a grudge with

regard to agricultural activities. As they started assaulting the informant,

he called his son Prakash on telephone. Prakash arrived and intervened so

as to pacify the accused.

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2. Accused No.1 is said to have inflicted a blow with the handle of an

axe on the head of Prakash. The victim sustained an injury and blood

started oozing from his mouth. Accused Nos. 2 and 3 beat the informant on

his abdomen, chest, thigh and on the left side of his ribs. Accused No.2

then beat Prakash on his chest, back and legs. As per the appellant, Badal

Ramdhan Dhangar and Ambar Bhimsingh Dhangar rushed to the spot and

rescued Prakash. They then carried him in a bullock cart upto the main

road and thereafter took him to the Apex Hospital at Aurangabad. After

the informant returned back to his house, as he did not accompany Prakash

to the hospital since he was accompanied by Badal and Ambar, the 3

accused again beat him.

3. Vide judgment dated 21/01/2017, the Trial Court acquitted all the

accused in Sessions Case No.180/2012 and held that they were not guilty of

committing any offence punishable under Sections 307, 324, 323, 504, 506

r/w 34 of the IPC.

4. We have considered the strenuous submissions of the learned

Advocates on behalf of the appellant, respondent Nos. 2 to 4 and the

learned Prosecutor on behalf of respondent No.1. With their assistance,

we have gone through the record placed before us.

5. The appellant has placed reliance upon the following judgments :-

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[a] State of Rajasthan Vs. Smt.Kalki and another[(1981) 2 SCC 752]

[b] Khurshid Ahmed Vs. State of J & K. [(2018) 7 SCC 429]

[c] Ajit @ Bhaiyyasaheb Ganpatrao Jadhao Vs State of Maharashtra

[2020(6) Mh.L.J. (Cri.) 557]

[d] C.Muniappan and others Vs. State of Tamil Nadu [2010 ALL SCR 2611]

6. The learned Advocate for the accused has strenuously contended

that as medical evidence did not support the injuries suffered by the victim

Prakash, the Trial Court has rightly disbelieved the story of the prosecution

and has found the story of the accused that Prakash fell off a bullock cart

and suffered internal head injuries, to be a probable version. Noticing

doubt in the case of the prosecution, the Trial Court has rightly acquitted

the accused.

7. He further submits that the testimony of PW No.2 was rightly

disbelieved by the Trial Court and discarded since he is the father of

Prakash and, therefore, was an interested witness. He further contends

that, according to the appellant, Badal and Ambar had rushed to the spot

purportedly to rescue Prakash. Only Badal was examined and Ambar was

not examined. He has then relied upon the testimony of P.W.No.13 who is

a doctor with qualifications of MCS Neuro Surgery. She had treated Prakash

in the private hospital as a story of Prakash having fallen from a bullock

cart, was narrated to the hospital at the time of admission on 10/06/2012.

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Subsequently, on 16/06/2012, P.W.No.2 informed the hospital that Prakash

was injured with an axe by an assailant. It was then that P.W.No.13

informed the concerned Police Station. However, the statement of Prakash

could not be recorded as he was in comatose state. It is informed that he

is still a comatose patient.

8. The learned Advocate for the appellant submits that while admitting

Prakash, the family members were in a peculiar condition. They had

approached one of the best hospitals in Aurangabad, after travelling from

Jalna, which could treat patients with brain injuries. Prakash was already

unconscious and fresh blood was oozing from his mouth. Had the factum

of Prakash having suffered an assault been narrated, the hospital may have

turned away the patient being a medico-legal case and Prakash was

battling for life and time was passing by. Urgent and immediate treatment

could have saved his life. In this backdrop, an untrue version was narrated

to facilitate the hospitalization of Prakash and the timely treatment has

saved his life.

9. He submits that it is quite apparent that as there was a probing into

the matter, PW No.2 had to narrate the true story to the hospital

authorities on 16/06/2012 and thereafter the Police arrived. He,

therefore, prays for admission of this Appeal.

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10. It is well settled that the opinion of a doctor is to be co-related with

the injuries suffered by a victim. If two views are possible, the benefit of

doubt has to be given to the accused. In the case in hand, P.W.No.1 was a

panch witness when the axe was seized from Samadhan, accused No.1 who

is said to have used the handle of the axe to hit Prakash on his head.

P.W.No.2 is a natural witness and merely because he is the father of

Prakash, he should not be disbelieved and his evidence should not be

discarded.

11. The accused had, according to the FIR, started assaulting P.W.No.2

and Prakash came to the said place only because P.W.No.2 called him on

telephone in desperation. P.W.No.4 has specifically stated that he and

cousin Amarsingh heard shouts from the agricultural land of P.W.No.2.

They rushed to the field which was about 500 mtrs. away. They saw the

three accused on one side assaulting P.W.No.2 and Prakash. By the time,

they reached the agricultural field, they noticed that Prakash had fallen on

the agricultural soil, was unconscious and blood was oozing from his

mouth. The accused were standing next to the common bandh between

the two fields and in their presence, P.W.No.2 informed P.W.No.4 that the

accused had beaten them. P.W.No.4 and Amarsingh had hospitalized

Prakash, initially at Anwa, Tal.Bhokardan and then he was taken to the

Apex Hospital at Aurangabad in an unconscious state with the help of Dilip

Vyavahare and Pandu Hazare. Pandurang has been examined as P.W.No.8.

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12. P.W.No.13 has deposed that there were two external injuries viz.

abrasion on the right side of the neck and lateral nasal bleeding. The

C.T.Scan revealed left temporal parietal sub-dural haematoma and left

temporal contusion. He was unconscious, unable to obey commands and

his upper limb appeared in pain and his rest of the limbs were flexing. He

was operated and was in coma when the deposition of P.W.No.13 was

recorded on 23/09/2016.

13. In paragraph No.8, P.W.No.13 has stated that the injuries sustained

by Prakash are possible due to a blow by the wooden stick as like an axe

handle. She perused the axe from the muddemal and stated that the

injuries suffered are possible due to blows by the handle of such axe.

Corresponding external injury, resulting in nasal bleeding, was not noticed,

which indicates internal brain injury. As regards the abrasion on the neck,

P.W.No.13 opined that, such injury is possible if someone falls on a hard

object like a stone. We are of the view that the statement of P.W.No.13 in

cross examination alone was considered by the Trial Court and her

examination-in-chief was ignored.

14. Considering the totality of the evidence before us, it cannot be ruled

out that after suffering a blow from Samadhan, Prakash collapsed on the

agricultural soil and Badal who reached the spot when he had collapsed,

found that a fight was going on. Fresh blood was oozing from the mouth of

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Prakash. There was no bullock cart or bullocks around to, prima-facie,

support the theory that Prakash had fallen from a bullock-card and had

hurt his head.

15. In view of the above, we find that the appellant has made out an

arguable case. This appeal is Admitted. The learned Advocates for the

respondents waive service on admission.

16. Respondent Nos. 2 to 4 shall surrender before the learned Additional

Sessions Judge-2, Jalna in connection with Sessions Case No. 180/2012

decided on 21/01/2017, within two weeks and the Trial Court shall ensure

compliance of Section 390 of the Cr,P.C. and shall decide as to whether

these accused need to be committed to confinement or be released on bail

during the pendency of this appeal. R & P be returned to the learned

Additional Sessions Judge-2, Jalna in connection with Sessions Case No.

180/2012 decided on 21/01/2017 with a further request to prepare an

appeal paper book on or before 30/09/2021 and transmit the same

alongwith the original R & P to this Court, on or before 30/11/2021.

      ( B.U. DEBADWAR, J. )                   ( RAVINDRA V. GHUGE, J. )




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