Bombay High Court
Raju Hira Patel And Ors vs Union Territory Of Daman And Diu on 22 February, 2021
Bench: S.S. Jadhav, N. R. Borkar
j-apeal-567-1996 @ 51-2000.doc
Digitally
signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Dinesh Dinesh S.
Sherla CRIMINAL APPELLATE JURISDICTION
S.
APPEAL NO. 567 OF 1996
Date:
Sherla 2021.02.24
14:27:16
+0500
Raju Hira Patel and ors. ... Appellants.
V/s.
Union Territory of Daman and Diu
through Daman Police Station and ors. ... Respondents.
WITH
APPEAL NO. 51 OF 2000
State
(Union Territory of Daman & Diu.) ... Appellant.
V/s.
Raju Hira Patel and ors. ... Respondents.
----------------
Mr. Aashish Satpute, Appointed Advocate for the Appellants in
Appeal No.567 of 1996 and for the Respondents in Appeal
No.51 of 2000.
Mr. H.S. Venegaonkar for the Respondent No.1 in Appeal
No.567 of 1996 & for the Appellant (State -Union Territory of
Daman and Diu) in Appeal No. 51 of 2000.
Ms P.P. Shinde, APP for the Respondent No.2 - State in Appeal
No. 567 of 1996.
----------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : FEBRUARY 02, 2021.
PRONOUNCED ON : FEBRUARY 22, 2021.
COMMON JUDGMENT (PER N.R. BORKAR, J.)
1] Both these appeals are fled against one and same
judgment and order dated 03.09.1996 passed by the Sessions
Judge, Daman & Diu at Daman in Sessions Case No. 82 of
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1990. Both these appeals were therefore, heard together and
are being disposed of by this common judgment.
2] The appellant Nos.1 to 3 (original accused Nos.1 to 3) in
Criminal Appeal No. 567 of 1996 were tried for the ofences
punishable under sections 143,147,148,323,452,302 read
with 149 of Indian Penal Code (for short "IPC").
3] The trial court, by the impugned judgement and order,
convicted the appellant No.1 (accused No.1) for the ofence
punishable under section 323 of I.P.C. and sentenced him to
sufer R.I. for one monthr the appellant No.2 (accused No.2)
for the ofence punishable under section 324 of I.P.C. and
sentenced him to sufer R.I. for six monthsr and the appellant
No.3 (accused No.3) for the ofence punishable under section
326 of I.P.C. and sentenced him to sufer R.I. for two years.
The trial court, however, acquitted the appellant Nos.1 to 3
for the ofence punishable under sections 143, 147, 148 and
302 read with 149 of I.P.C.
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4] Criminal Appeal No.567 of 1996 has been fled against
conviction by the appellants/accused Nos.1 to 3 whereas the
State (Union Territory of Daman & Diu.) has fled Criminal
Appeal No. 51 of 2000 against their acquittal for the ofence
punishable under sections 143, 147, 148 and 302 read with
149 of I.P.C..
5] It is the case of the prosecution that at the relevant
time, the deceased Balu Patel was residing with his wife
Ganga and his sons Mohan, Kanti, Raju and daughter Suman
at village Koliwad, Bhimpore, Nani Daman. Accused Nos.2 and
3 are the sons of brother of the deceased namely Jaggu. The
deceased and Jaggu were owners of adjoining agricultural
lands. It is alleged that there was a dispute between the
deceased and Jaggu on account of possession of certain
portion of agricultural land.
6] The incident took place on 07.08.1990. One day prior to
the incident, at about 2.00 p.m., a quarrel took place between
the son of deceased PW-4 Mohan and the wife of Jaggu
namely Gajari on account of plantation of sapling of coconut
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in disputed area by the family of Jaggu. It is alleged that in
the said quarrel, accused No.3 and accused No.4, who died
during pendency of the trial, along with Gajari assaulted PW-4
Mohan by bricks and fst blows. After returning home, PW-4
Mohan disclosed about the said incident to his father
(deceased).
7] It is alleged that on the day of incident, at about 10.00
a.m., the deceased came to the house of Jaggu with a view to
enquire about the incident, which took place with his son PW-
4 Mohan, on previous day. It is alleged that while the
deceased was returning back home from the house of Jaggu
and was near Bhimpore Char Rasta, at that time, accused
No.3 came from behind on motorcycle and gave dash to the
bicycle of the deceased. The report was, therefore, lodged by
the deceased against the accused No.3 in relation to the said
incident with the police.
8] It is alleged that at about 8.00 p.m., accused Nos.1 to 4
along with one juvenile ofender came to the house of
deceased as they were annoyed with lodging of the report by
the deceased with the police against the accused No.3. They
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dragged the deceased out of the house. Then they assaulted
the deceased. It is alleged that accused No.2 assaulted the
deceased by penknife on his left eyer accused No.3 stabbed
deceased with penknife on his stomach and backr and
accused No.1 assaulted the deceased with fst blows. It is
alleged that when PW-4 Mohan tried to intervene and rescue
his father from the accused, at that time accused No.4 and
juvenile ofender caught hold of him and assaulted him with
fst blows. On raising shouts for help by PW-4 Mohan, his
mother came out. On seeing her, all the accused ran away
from the place of incident. The deceased was injured in the
incident and was thus taken to the Daman Police Station and
from there he was referred to Marwad Hospital for treatment.
The deceased was referred to diferent hospitals, however,
ultimately he succumbed to the injuries on 09.08.2020.
9] On the basis of report lodged by PW-4 Mohan with Nani
Daman Police Station, the crime was registered against the
accused Nos.1 to 4 and juvenile ofender initially for the
ofence punishable under sections 143, 147, 148, 323, 452
and 307 r/w. 149 of I.P.C.. After the death of the deceased,
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ofence was converted to the ofence punishable under
section 302 of I.P.C. along with other sections. On completion
of investigation, the charge-sheet was fled against the
accused.
10] The accused were charged and tried for the above
stated ofences. The trial court, however, as stated earlier by
the impugned judgement and order convicted accused No.1
simplicitor for the ofence punishable under section 323,
accused No.2 for the ofence punishable under section 324
and accused No.3 for the ofence punishable under section
326 of the I.P.C.. The trial court acquitted accused Nos.1 to 3
for rest of the ofences.
11] We have heard Mr. Aashish Satpute, the learned counsel
(appointed) for the appellants/accused Nos.1 to 3 and Mr. H.S.
Venegaokar, the learned counsel for the State (Union Territory
of Daman & Diu.).
12] The case of the prosecution is mainly based on the
evidence of the following eye-witnesses
(i) PW-1 Chibu Kika Ahirr
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(ii) PW-2 Hiru Kika Ahirr
(iii) PW-4 Mohan Balu Patel (son of the deceased)r and
(iv) PW-6 Ganga Balu Patel (wife of the deceased).
13] According to PW-1 Chibu Ahir, the deceased was his
neighbour. On the day of incident, he was sitting in front of his
house on the cot and at that time his brother PW-2 Hiru Ahir
was with him. At about 7.30 to 7.45 p.m., accused Nos.1 and
2 came to his house on motorcycle. They both sat beside him
on cot. After some time PW-4 Mohan came there and dispute
took place between accused No.2 and PW- 4 Mohan over
some landed property. He and his mother told the accused
Nos.1 and 2 to go away from their house as they did not like
somebody quarreling in front of their house. PW-1 has stated
that all of a sudden he heard shouts and commotion and saw
that the accused No.2 and Balu (deceased) were scufing. He
stated that he did not see accused No.1 at that place because
of darkness. He stated that afterwards, he saw that the
deceased was lying near the cattle shed in injured condition.
PW-1 stated that he wanted to remove Balu (deceased) to the
hospital but his mother and wife did not allow him to go out of
the house.
Dinesh Sherla 7/18
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14] PW-1, however, in his examination-in-chief itself, has
stated that he will not be able to say how the deceased was
injured. As regards scufe between the accused No.2 and the
deceased, PW-1 has admitted that he had not stated so in his
statement to the police.
15] PW-2 Hiru Ahir has stated that on the day of incident,
the accused Nos.1 and 2 came to their house at 7.30 p.m. and
sat beside his brother PW-1 on the cot in front of their house.
After some time, PW-4 Mohan came there and accused Nos.1
and 2 discussed something with him. At about 8.00 p.m., he
heard commotion and came out of the house. He saw accused
No.2 and Balu (deceased) were quarreling with each other.
After some time, he saw that Balu was lying on the ground in
the injured condition.
16] In the cross-examination, PW-2 has admitted that he had
not seen accused Nos.1 and 2 dragging the deceased Balu by
holding his hand.
17] In the evidence of PW-1 Chibu and PW-2 Hiru, there is
absolutely no reference to accused Nos.3 and 4 or the
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juvenile ofender. They have not attributed any role to the
accused Nos.3 and 4 or the juvenile ofender in the alleged
incident.
18] According to PW-4 Mohan, the son of the deceased, on
the day of incident at about 8.00 p.m. while he was returning
home, the accused Nos.1 to 4 and juvenile ofender who were
sitting in verandah of the house of PW-1 Chibu, asked him as
to why he lodged the complaint with the police. He did not
give any reply and came to his house. Accused Nos.1 to 3
came following him to his house and dragged his father, who
at that time was taking rest on the cot in verandah of their
house. They brought his father in front of the house of PW-1.
Accused No.2 then assaulted his father with penknife on his
left eye, accused No.3 assaulted his father by penknife on his
chest and back and accused No.1 assaulted his father with fst
blows. PW-4 has stated that when he tried to intervene to
rescue his father, accused No.4 and juvenile ofender
assaulted him with fst blows. He, therefore, raised shouts and
on hearing his shouts his mother came out of the house. As
he reaised shouts, all the accused ran away on motorcycle.
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PW-4 has stated that as his father was injured he took his
father to the police station and from there his father was
referred to Marwad Hospital. PW-4 has stated that he lodged
the complaint with Nani Daman Police Station about the
incident.
19] PW-4 Mohan, in the cross-examination, has admitted
that there was a dispute between his father and accused
Nos.2 to 4 over agricultural land. He has further admitted that
after the incident, he had frst gone to the police station and
from there his father was referred to Marwad Hospital. He has
admitted that he did not disclose the names of the assailants
while he was there in the police station and he disclosed the
names of the assailants, after his father was admitted to the
Marwad Hospital.
20] According to PW-6 Ganga, the wife of the deceased, on
the day of incident at about 7.00 p.m. her husband was taking
rest on the cot in verandah of their house. At that time,
accused Nos.1 and 2 came to their house. Her husband asked
them as to why they had come. They dragged her husband.
Her husband fell down. The accused No.2, then assaulted her
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husband with knife on left eyebrow, nose, stomach and on
waist. As her husband was injured they took him to the
hospital
21] In the cross-examination, PW-6 has admitted that she
came out of the house on hearing shouts of her son PW-4
Mohan. When she came out of the house, she found that her
son was sitting beside her husband and was crying. In the
evidence of PW-6 also, there is no reference at all to the
accused Nos.3 and 4.
22] The learned counsel for the appellants has submitted
that there is nothing incriminating in the evidence of PW-1
and PW-2 as both of them have admitted that they are unable
to say as how the deceased sustained injuries. It is submitted
that as regards PW-6, her evidence is also of no consequence
as she came out of the house after hearing shouts of her son
(PW-4) and saw that her husband was lying on the ground and
her son was sitting beside him and was crying. It is submitted
that PW-4 cannot be believed as his evidence is not
consistent with the evidence of other eye-witnesses. It is
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further submitted that medical evidence is also not in
consonance with the evidence of PW-4. It is submitted that
considering these facts and circumstances and admitted
enmity between the parties, the possibility of false implication
cannot be ruled out.
23] On the other hand, learned counsel for the State has
submitted that the learned trial court relying upon the
evidence of eye-witnesses has accepted the case of the
prosecution to the extent of assault on the deceased by the
accused Nos.1 to 3. It is submitted that the trial court,
however, committed an error by convicting the accused Nos.1
to 3 for lesser ofence just because medical evidence was
found to be not corroborating the oral evidence of the eye
witnesses. It is submitted that the law is well settled that in
case medical evidence is found to be not in consonance with
the oral evidence, then oral evidence shall prevail over the
medical evidence. It is submitted that the trial court was,
therefore, not justifed in acquitting the accused Nos.1 to 3
for the ofences punishable under sections 143, 147, 148, 302
read with 149 of IPC.
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24] As the trial court has found discrepancy in medical
evidence and oral evidence, it would be appropriate to
examine the said aspect frst.
25] According to PW-7 Dr. C.A. Jog, on 07.08.1990 he was
working as Civil Surgeon with government hospital, Marwad.
On that day, the deceased was brought to his hospital at
about 8.40 p.m.. He examined him and found the following
injuries.
"1. C.L.W. 5 x 1 cm. In peritorial region right
hypocondrian grievous in nature.
2. C.L.W. 2 x 1 cm on the back oblique at the level of
L4 L5 simple in nature.
3. C.L.W. 1 x 1 cm. left lower eyelid simple in nature.
4. C.L.W. 1 x ½ cm. lateral border of nose-simple in
nature.
5. C.L.W. ½ x ½ cm. lateral border of nose-simple in
nature.
6. Fracture nasal bone - grievous in nature."
26] PW-7 Dr. Jog has stated that all the above injuries were
contused lacerated wounds and were caused by hard and
blunt object.
27] PW-8 Dr.Gaurang Solanki had conducted Postmortem on
the dead body of deceased. He has stated that on 09.08.1990
the dead body of Balu Patel was brought to his hospital.
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During postmortem, he found the following external injuries:
1. 2 Stitches wounds over right nose side
(1) upper 2 cms x 1 cms.
(2) Lower 1 ½ cms x ½ cms.
Both angle acute, margin clean cut,
sub.deep 2 stitches taken.
2. A stitches wound extending from bridge of nose to
left upper eye lid 4 cms. X ½ cms both angles acute.
Margin clean cut, sub-deep clean cut, 3 stitches taken.
3. A stitched wound over lower part of left eyelid 1½
cms x ½ cms being sub.deep, margin clean cut. Both
angles actue, 2 stitches taken.
4. A stitches wound over midline of abdomen
extending from zyphisterunm to lower part of abdomen,
15 cm x 1 cm. 21 stitches taken (laprotomy wound).
5. A stitched wound over right side of abdomen to
the right coastal margin 5 cms x ½ cms. Both angles
acute in the margins clean cut, cavity deep and going
obliquely downwards and pierce in left lobe of linear.
6. Tracheostomy wound over lower part of anterior
aspect of neck.
7. An abrasion over lower part of left side of abdomen
8 cms x ½ cm. red in colour.
8. An abrasion over left knee joint anterior aspect 2
cms. x 1 cm. red in colour.
9. Fracture of nasal bones."
28] On internal examination, he found the following injuries:
1. Head (1) no scalp injury,
(2) no fracture,
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(3) sub-dural hemotoma seen present all over
the brain surface as a thick clotted blood.
(4) Sub-archnoid heamorhage seen present as a
thin flm of fuid blood.
(5) Pontine heamorhage seen.
(6) Brain congested.
In Chest - no internal injury was found and both lungs
were found to be congested.
On opening abdomen corresponding injury No.5 of
external injury there was a stab wound of 3 cms. x ½ cms
both angels acute going obliquely downward deep to the
cavity. There was about 60 cc of fuid blood in the
pertonial cavity and pertonial cavity was found to be
present.
Stomach 30 cc of yellowish fuid with no characteristic
mucosa N.A.D.
There were two perforations in illium and jejunim stitched
with black thread of 1 ½ cms x ½ cm both angle acute
and luman deep. There was an incised wound over left
lobe of liner anterior aspect 2 cm. x ½ cms involving
whole thickness.
All internal organs were congested."
According to him, all the external injuries were ante-
mortem and the cause of death of deceased was " due to
shock and haemorrhage as a result of head injury ".
29] In cross-examination, PW-8 has admitted that injury
Nos.1 to 5 are not possible by knife, i.e., Article 4, as
according to him the edge of blade of knife was not sharp. He
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has further admitted that injury No.5 has not caused the
death of deceased. He has further admitted that in case of fall
from bicycle the internal head injury in question is possible.
30] It is thus apparent from the medical evidence that the
deceased died due to head injury. However, none of the
witnesses have stated that the deceased was assaulted on
the head. According to PW-7 Dr. C.A. Jog, the injuries were
caused by hard and blunt object. PW-1, PW-2 and PW-6 do
not appear to be witnesses to alleged assault. According to
PW-4 Mohan, the assault was made by knife. It would thus
appear that the medical evidence is not at all in consonance
with the evidence of PW-4. The Hon'ble Supreme Court in
case of Ram Narain vs. The State of Punjab - AIR 1975
SC 1727 has observed as under:
"Where the evidence of the witnesses for the
prosecution is totally inconsistent with the medical
evidence or the evidence of the ballistic expert, this is a
most fundamental defeat in the prosecution case and
unless reasonably explained it is sufcient to discredit
the entire case."
31] In the facts and circumstances of the present case, it
would not be safe to rely upon the uncorroborated testimony
of PW-4 especially when there was admitted enmity between
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the parties. Consequently, it will have to be held that, the
prosecution has failed to prove it's case against the accused
beyond reasonable doubt. In the result, the following order is
passed.
ORDER
1] Criminal Appeal No. 567 of 1996 fled by the
appellants/accused Nos.1 to 3 against their conviction is
allowed.
2] The impugned judgment and order dated
03.09.1996 passed by the Sessions Judge, Daman & Diu
at Daman in Sessions Case No. 82 of 1990 convicting the
appellant No.1 (accused No.1) for the ofence punishable
under section 323 of I.P.C.r the appellant No.2 (accused
No.2) for the ofence punishable under section 324 of
I.P.C.r and the appellant No.3 (accused No.3) for the
ofence punishable under section 326 of I.P.C. is set
aside and they are acquitted of the said ofences.
3] Their bail bonds shall stand cancelled.
4] The fne, if any paid by the appellants/accused
Nos.1 to 3, be refunded to them.
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5] Criminal Appeal No. 51 of 2000 fled by the State
(Union Territory of Daman and Diu.) stands dismissed.
6] Both Appeals are disposed of accordingly.
(N.R. BORKAR, J.) (SMT. SADHANA S. JADHAV, J.)
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