Pundlik Bhivsan Paimode And Ors vs State Of Maharashtra
2021 Latest Caselaw 3175 Bom

                                                                    1-APEAL-290-1998.odt
Shambhavi
N. Shivgan
                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
Shambhavi N.                CRIMINAL APPELLATE JURISDICTION
Shivgan
Date: 2021.03.02
17:31:02 +0530                       CRIMINAL APPEAL NO.290 OF 1998


                      1    Pundlik Bhivsan Paimode,
                      34 years

                      2    Dattatraya Bhivsan Paimode,
                      30 years

                      3    Narayan Bhivsan Paimode,
                      45 years

                      4    Sakharam Vedu Paimode
                      47 years

                      5    Dilip Sakharam Paimode
                      26 years; r/o. Section 'C'
                      Ravalgaon Tal: Malegaon

                      6    Bhikan Baburao Shelke
                      age 38 years r/o Mohadi
                      Upnagar, Dhule,
                      through Jail                              ... Appellants
                                                       (Org. Accd.Nos.1 to 3,6,7
                                                                      and 16)

                                Vs

                      The State of Maharashtra                ... Respondents
                                                   ...

Mr. C.M.Kothari with Mr. Manoj Mohite, Senior Advocate with Mr. Shantanu Phanse with Mr. Jitendra M. Pathade

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with Mr. Deepak Rane for the Appellants.

Mrs. Veera Shinde, APP for the Respondent-State.

CORAM : SANDEEP K. SHINDE J.

DATE : 18th FEBRUARY, 2021.

ORAL JUDGMENT :

It is an appeal under Section 374(2) of the Code

of Criminal Procedure, 1973, preferred by the accused nos.1

to 3, 6, 7 and 16 against the conviction recorded in

Sessions Case No.111 of 1991 by the II nd Additional

Sessions Judge, Malegaon for the ofences punishable under

Section 147, 148 and 307, 452, 506II, 323 read with Section

149 of the Indian Penal Code, 1860 ('IPC' for short) and

imposed sentence, particulars of which are as under ;

(i) For ofence under Sections 147 and 148 of the IPC

, rigorous imprisonment for one year and to pay a fne of

Rs.500/- on each count, in default rigorous imprisonment

for two months;

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(ii)      For the ofence under Section 307/149 of the IPC,

rigorous imprisonment for fve years and to pay fne of

Rs.1,000/- each in default to undergo for further rigorous

imprisonment for three months;

(iii) For the ofences punishable under Section

452/149 of the IPC, rigorous imprisonment for two years

and to pay a fne of Rs.1,000/- each in default to undergo

for further rigorous imprisonment for three months;

(iv) For the ofences punishable under Section 506

(II)/149 of the IPC to sufer rigorous imprisonment for one

year and to pay fne of Rs.500/- each in default to undergo

for further rigorous imprisonment for one month;

(v) For the ofences punishable under Section

323/149 of the IPC, sufer rigorous imprisonment for six

months and to pay a fne of Rs.500/- each in default to

undergo further rigorous imprisonment for one month.

(vi) Substantive sentences were directed to run

concurrently.

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2           Pending appeal, accused no.6 had passed away,

therefore appeal abates against him.



3           Prosecution   case   in   brief    is    that,    accused

(eighteen    in   numbers)   being     members          of   unlawful

assembly, in prosecution of the common object, assaulted

P.W.7-Laxmibai and her husband Pandit Jadhav (P.W.3) with

dangerous weapons like swords in an attempt to cause their

death on 2nd February, 1991, in the day light.

MOTIVE:

4 Two days before the alleged incident, accused

no.3-Narayan, had stalked, Vandana, minor daughter of

Laxmibai, whereupon, her father Pandit Jadhav,

reprimanded him, whereas Pandit's son, Ganesh slapped

him. As such, accused no.3-Narayan, his relatives and his

parents, bore malice against Pandit Jadhav, father of

Vandana.

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ALLEGATIONS:

.         Thus, alleged, accused barged in the house of

Laxmibai, who were 7-8 in number, caused annoyance and

in the course of the same transaction, accused no.3 hit

Vandana. Laxmibai was thrashed by the accused, who were

armed with weapons like rods and swords. One of the

accused, Bhikan enquired as to where her husband was.

Whereafter, all of them, went to ofce of Pandit Jadhav. He

was assaulted, initially outside the ofce and when he took

shelter in the ofce premises, he was pulled out and

assaulted again by deadly weapons. Relatives of Pandit

Jadhav and his ofce-mate, Popat Mitkari, intervened and

made eforts to ease the anger of the accused, were also

thrashed by the accused. All injured were treated in the

Government Hospital at Malegaon. Laxmibai reported the

incident, whereupon Crime No.11 of 1991 was registered

under Sections 147, 148, 149 and 307 of the IPC.

5           Pandit Jadhav was examined as P.W.3 and his wife


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Laxmibai-P.W.7. Pandit was working in the ofce of the

Maharashtra State Farming Corporation. He testifed that

accused no.1 to 8 alighted from white coloured Maruti car

and thrashed him by fsts and kick blows. Following that, he

fell unconscious. He was removed to his ofce, where after

ffteen minutes, he regained consciousness. He testifed

that accused while feeing the scene of ofence, he stood

across the car, whereupon a wheel of car, ran over his foot.

He further testifes, injured were taken to the Wadia

hospital. Prosecution has, also examined independent

witness Mitkari, eventually a person, who was working in

the ofce of Pandit Jadhav as P.W.2. This witness testifed

that accused no.1 Pundlik and others assaulted Pandit

Jadhav and he along with Sakharam Rambhau Khairnar,

Dadaji Raghunath tried to ease the anger, of accused and

to save Pandit Jadhav from the attack. This witness would

say that amongst the mob, someone was holding iron bar

and a sword and he had sufered incised injury, of half inch

deep on the tip of the right index fnger, middle fnger, left

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middle fnger and over the tip of left ring fnger caused by

sharp cutting object.

6 Relying on evidence of Laxmibai, Pandit

Jadhav and Popat Mitkari, the Trial Court recorded the

conviction under Sections 147, 148 307 read with Section

452 r/w 149, 506II, 323 r/w 149 of the IPC and sentenced

them to sufer rigorous imprisonment, as stated above.

7 I have perused the evidence of Popat Mitkari

(P.W.3), Pandit Jadhav (P.W.2), Indu (P.W.4), Laxmibai (P.W.7)

and Vandana (P.W.8).

8 Before assessing the prosecution evidence,

it may be stated that, fve injured, had sustained simple

injuries in the nature of haematoma, abrasion, contusion

and incised injuries on the tip of fngers, shoulder, right

knee joint by hard/blunt object. Weapons allegedly used,

were shown but not identifed by the witnesses. Besides,

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Vandana (eye witness), a daughter of complainant, turned

unfriendly to the prosecution. Moreover, another eye

witness, Sangita (P.W.6) did not support the prosecution.

Indubai (P.W.4) testifed, that she fell unconscious and has

not witnessed the incident. Yet, next prosecution witness

Shivling testifed that he reached the scene of ofence,

while Pandit Jadhav was lying on the ground. Thus,

testimony of Shivling suggests that he came on the scene

of ofence after the alleged assault. Taking note of these

facts, question falls for consideration is whether evidence of

Pandit Jadhav (P.W.3);, Popat Mitkari (P.W.2), Laxmibai

(P.W.7) has established beyond reasonable doubt that

convicted accused/appellants in prosecution of the common

object, assaulted Pandit Jadhav and Laxmibai with

dangerous weapons with intent to cause their death and

whether proved that accused being members of unlawful

assembly, were actuated by common object and that

common object was one of those set out in Section 141 of

the IPC.

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9             Herein the conviction is founded on the

"constructive liability". Where the common object of the

unlawful assembly is not proved, accused persons cannot

be convicted with the help of Section 149 of the IPC.

Though, no hard and fast rule can be laid down, under the

circumstances from which common object can be culled

out, it may be gathered from the nature of incident. In the

case at hand, evidence of Laxmibai (P.W.7) reveals, 7-8

persons armed with rods and swords, frst barged into her

house and thrashed her and accused no.3 hit daughter

Vandana. Whereafter, they went to her husband's ofce.

She testifed, accused assaulted her husband but she fell

over his body, to protect him from attack. However, her

evidence is, as vague as possible, and projects diferent

account of occurrence than one given by Pandit Jadhav.

While in cross-examination, Laxmibai admitted that, she did

not tell police that accused no.16-Bhikan barged into the

house and was enquired whereabouts of her house; she did

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not tell police that she fell on the person of her husband to

protect him from attack; she did not tell police that Popat

Mitkari (P.W.2) held sword blade to resist and prevent

assault; and also did not tell police while lodging the

complaint that accused no.3 hit her daughter Vandana.

Obviously, these omissions were vital in nature, which go to

the root of the prosecution case and renders, testimony of

the witness unsafe. Even otherwise, Vandana (P.W.8),

daughter of the complainant did not support her mother's

evidence at all; to say not only about occurrence but even

on motive alleged by the prosecution. In fact, prosecution

case is that accused no.3 stalked Vandana, whereupon her

father reprimanded him. Felt insulted, accused no.3 and his

family members in order to teach lesson to Vandana and

her family members, held attack on them. Nevertheless,

Vandana did not carry prosecution case at all. As such, it

renders prosecution case feeble as to its motive and

resultantly, common object of the unlawful assembly has

not been proved beyond reasonable doubt.

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10 That apart, close scrutiny of the testimonies of

Laxmibai and her husband, reveals that they have not only

blown the case out of proportion but the contradictions and

omissions in the testimonies, have rendered their evidence

indefnite. At the cost of the repetition, it may be noted that

injuries on the person, were simple and were not on vital

parts of their body. Three eye witnesses turned unfriendly

to the prosecution including daughter of the complainant.

Recovery of the weapon has not been proved. Besides,

arraigned eighteen persons in the crime, shows, it is case of

over implication. Laxmibai at the frst instance fled FIR

against eight persons. She testifed, other eight persons

were sitting in the car while seven accused barged in her

house. This version renders veracity of her evidence

doubtful. Yet, Laxmibai though attributed role to accused

no.16, she did not disclose his name in the complaint.

Besides, neither Laxmibai nor her husband nor Popat

testifed as to who held iron rods and swords. The injuries

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1-APEAL-290-1998.odt

on the person do not suggest, same were caused with

sword or iron rod.

11 In consideration of the evidence on record, in my

view, prosecution has failed to prove beyond reasonable

doubt that they being members of unlawful assembly, were

actuated by the common object and that common object

was one of those set up in Section 141 of the IPC.

12 Appeal is allowed. Bail bonds executed by the

appellants stand cancelled and sureties are discharged.

13 Appeal stands disposed of accordingly.

(SANDEEP K. SHINDE, J.)

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