Paraji S/O Haribhau Pund And ... vs The State Of Maharashtra
2021 Latest Caselaw 13795 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 695 OF 2014


 1.       Paraji s/o Haribhau Pund
          Age 70 years, Occ,. Agri.,

 2.       Ashok s/o Paraji Pund
          Age 33 years, Occ. Agri.,

 3.       Vikram s/o Paraji Pund
          Age 35 years, Occ. Agri.,

 4.       Gayabai w/o Vikram Pund
          Age 27 years, Occ. Household

          All R/o. Nandgaon
          Tq and Dist. Ahmednagar                ...Appellants

                  versus

 The State of Maharashtra
 (Copy to be served on P.P.
 High Court Bench at Aurangabad)                 ...Respondent

                                  .....
 Mr. Satej S. Jadhav, advocate for the appellants
 Mr. G.O. Wattamwar, A.G.P. for respondent State
                   .....

                                       CORAM : V. K. JADHAV AND
                                              SHRIKANT D. KULKARNI, JJ.

DATED: 24TH SEPTEMBER, 2021

JUDGMENT (PER V.K. JADHAV, J.) :-

1. This appeal is directed against the judgment and order of

conviction dated 10.11.2014 passed by the Additional Sessions

Judge, Ahmednagar, in Sessions Case No. 177 of 2013.

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2. Brief facts giving rise to the prosecution story are as follows:-

a) Deceased Dattatraya was the owner of land Gat No. 125 to

certain extent, situated at village Nandgaon, Tq. and district

Ahmednagar. Similarly, the accused persons are also owners and

in possession of certain portion of land Gat No. 125. There is

common well in the land and both the families had installed electric

motors on the said common well to fetch the water. However, there

was dispute in respect of fetching of water.

b) On 13.3.2013, appellant No.2 Ashok Paraji Pund (original

accused No.2) and appellant No.3 Vikram Paraji Pund (original

accused No.3) had been to the house of deceased Dattatraya at the

evening time and threatened to kill if they would start their electric

motor on the common well for watering the crops.

c) On 15.3.2013, at about 9.00 a.m., deceased Dattatraya had

been to the said common well to start the electric motor. At 10.30

a.m., P.W.1 Sindhu and P.W.3 Macchindra had gone to the said field

with lunch tiffin. As per the prosecution story, at about 1.00 p.m. the

appellants accused persons came there and started quarrelling with

them. The appellants accused allegedly assaulted the informant; her

husband deceased Dattatraya and son Macchindra by fist and kick

blows and also abused them in filthy language. The appellant

accused No.3 Vikram allegedly untied the rope of electric motor, for

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which deceased Dattatraya had questioned him. Thereafter, all

accused started beating to deceased Dattatraya. As per the

prosecution story, all the appellants accused had lifted deceased

Dattatraya and thrown him in the well and went away. In

consequence thereof, deceased Dattatraya had sustained severe

injuries. He was immediately shifted to Civil Hospital, Ahmednagar.

He was declared dead by the concerned doctor after examination.

d) On the basis of complaint (Exh.30) lodged by P.W.1 Sindhu

on 15.3.2013, crime No.56 of 2013 for the offences punishable under

Sections 302, 323, 504, 506 r.w. 34 of I.P.C. came to be registered in

the concerned police station. P.W.5 P.I. Chandrashekhar Sawant

took over the investigation of the crime on 15.3.2013 itself. On that

day, he had effected the arrest of the accused Nos. 2 to 4 by drawing

arrest panchnama. On the same day, he had seized the clothes of

deceased Dattatraya under Panchnama Exh.46. He had also

recorded the statements of witnesses P.W.4 Macchindra and others.

On 15.3.2013 itself, the appellant-accused Vikram had lodged a

complaint and on the basis of which, N.C. was registered by Station

House Officer Mr. Shaikh. P.W.5 P.I. Sawant had collected the copy

of said N.C. On the next day i.e. on 16.3.2013 he had visited the spot

and drawn spot panchnama in presence of two panchas which is

marked Exh.45. Meanwhile, he had sent the dead body for post

mortem examination. He had received the post mortem notes of

deceased Dattatraya on 28.3.2013. After completion of investigation,

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he had submitted the charge sheet before the Court.

e) The learned Additional Sessions Judge, Ahmednagar has

framed charge against the appellants-accused persons for the

offences punishable under Sections 302, 323, 504, 506 r.w. 34 of

I.P.C. The contents of all the charges were read over and explained

to each of them. The accused pleaded not guilty to the said charge

and claimed to be tried. The prosecution has examined in all five

witnesses to substantiate the charges levelled against the accused.

After completion of prosecution evidence, the statements of accused

persons came to be recorded under section 313 of Cr.P.C. The

defence of the accused persons is of simple denial and false

implication. It is also suggested to P.W.1 Sindhu during the cross

examination that deceased Dattatraya fell into the well due to slip of

leg.

f) The learned Additional Sessions Judge, Ahmednagar by

judgment and order of conviction dated 10.11.2014 in Session Case

No. 177 of 2013 convicted the appellants accused for the offences

punishable under Sections 302, 323, 504, 506 r.w. 34 of I.P.C. and

sentenced them to suffer imprisonment in the following manner:-

"1. Accused No.1 Paraji Haribhau Pund, age 70 years about, No.2 Ashok Paraji Pund, age 34 years about, No.3 Vikram Paraji Pund, age 35 years about and No. 4

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Gayabai Vikram Pund, age 30 years about are herby convicted under Sec. 235(1) (2) of the Cr.P.C. for the offences punishable under Sections 302, 323, 504, 506 & 34 of the Indian Penal Code and for all the counts they are sentenced as follows:-

2. Accused Nos. 1 to 4, named above, are sentenced to surfer life imprisonment for the offence punishable under Secs. 302, 34 of the Indian Penal Code.

3. Accused Nos. 1 to 4, named above, are sentenced to suffer rigorous imprisonment for six months each for the offence punishable under Secs. 323, 34 of the Indian Penal Code.

4. Accused Nos. 1 to 4, named above, are sentenced to suffer rigorous imprisonment for six months each for the offence punishable under Secs. 504, 34 of the Indian Penal Code.

5. Accused Nos. 1 to 4, named above, are sentenced to suffer rigorous imprisonment for one year each for the offence punishable under Secs. 506, 34 of Indian Penal Code.

6. The accused Nos. 1 and 4 shall surrender their bail bonds forthwith. The accused Nos. 1 and 4 be remanded into jail custody to suffer the sentence.

7. The accused No.2 Ashok Paraji Pund and accused No.3 Vikram Paraji Pund both were arrested on 15.3.2014 (it must be 15.3.2013) and they are in jail custody. The accused No.1 Paraji Haribhau Pund was arrested on

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16.3.2013 and was released on bail on 20.7.2013. The accused No. 4 Gayabai Vikram Pund was arrested on 15.3.2013 and was released on bail on 26.3.2013. A set of U/s. 428 of the Cr.P.C. be given to the accused No. 1 to 4 according to law.

8. All the above substantive sentences to run concurrently.

9. The muddemal articles i.e. Article No.1 - faint chocolate colour old used full pants, Article No.2- one cut underwear having strips and Article No.3- one cut white colour vest, being worthless may be destroyed after period of three years from today and if no orders are received from superior courts till then and if the orders of superior courts are received then it be governed as per the orders of the Superior Court.

10. Copy of this judgment be given to the accused Nos. 1 to 4 free of cost immediately.

11. The Sessions Case No. 177 of 2013 stands disposed of accordingly.

12. The judgment is dictated and declared in open Court."

3. Learned counsel for the appellants-accused submits that the

prosecution has examined P.W.2 Dr. Gorakhnath Gaikwad. P.W.2

Dr. Gaikwad has noted four external injuries on the dead body of

deceased Dattatraya. All external injuries are in the nature of

contused abrasions and considering the size of those injuries, the

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possibility that deceased Dattatraya accidentally slipped in the well

cannot be ruled out. Learned counsel submits that P.W.2 Dr.

Gaikwad has also admitted in his cross examination that the injuries

mentioned in column No.17 of the post mortem report are possible

due to coming into contact with rough wall of well made of stones.

P.W.2 Dr. Gaikwad has further admitted in the cross examination that

there is difference in throwing one in the well and a person falling in

the well by himself. If a person is thrown by others, he will fall in the

middle of well. If a person falls on the iron foundation in the well due

to slipping of leg, such type of injuries as mentioned in the post

mortem report are possible.

4. Learned counsel for the appellants-accused submits that

P.W.1 Sindhu has admitted in her cross examination that there is no

parapet wall over ground level of the well. Learned counsel has

pointed out from the contents of spot panchnama Exh.45 that the

well on its upper portion is constructed with the help of stones and

two electric motors were installed on iron foundation alongwith pipes

laid in the well for fetching the water. Learned counsel submits that

considering the external injuries alongwith internal corresponding

injuries on the person of deceased Dattatraya and from the

description of the well, the only irresistible inference could be drawn

that deceased Dattatraya might have slipped in the well and

sustained injuries. Learned counsel submits that there was dispute in

respect of fetching of water from common well since long. Even

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though P.W.1 Sindhu had an opportunity to lodge the complaint

immediately in the police station, the informant's family took time and

afterthought the complaint Exh. 30 came to be lodged in the

concerned police station. P.W.3 Macchindra has also admitted about

the same in his cross examination to the extent that he himself and

his brother-in-law, maternal uncle and other persons when gathered

in the hospital, discussed about the strategy for further course of

action and accordingly they had decided to lodge the report.

5. Learned counsel for the appellants-accused submits that

P.W.1 Sindhu and P.W.3 Macchindra are highly interested

witnesses. Even though independent witnesses were available and

their statements came to be recorded during the course of

investigation, the prosecution has not examined any independent

witness to substantiate the charges levelled against the accused

persons. Learned counsel for the appellants submits that there is no

evidence about abuses so also the criminal intimidation to attract the

provisions of Sections 504 and 506 of I.P.C. Furthermore, except

those contusions and abrasions of excessive size on the dead body,

which were possible while falling into the well, there are no other

injuries on the dead body of deceased Dattatraya indicating that he

was subjected to extensive beatings. Learned counsel submits that

even there is no evidence in respect of charge under Section 323 of

I.P.C.

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6. Learned counsel for the appellants-accused submits that

P.W.1 Sindhu and P.W.3 Macchindra though deposed that the

appellants accused have extended beatings to them, however, they

have not sustained the injuries nor subjected to medical examination

at any point of time. Learned counsel thus submits that the

appellants accused persons are entitled for benefit of doubt.

7. Learned counsel for the appellants-accused in the alternate

submits that P.W.1 Sindhu has deposed that on 13.3.2013 i.e. two

days prior to the alleged incident, appellant accused No.2 Ashok and

appellant accused No.3 Vikram came to their house at the evening

time and threatened to kill if they start their electric motor installed on

the well for watering the crops. Learned counsel submits that P.W.1

Sindhu in para 9 of her cross examination has also admitted that

there was altercation going on between her husband deceased

Dattatraya on one side and appellant accused No. 2 Ashok and

appellant accused No.3 Vikram on the other side. The appellant

accused No.3 Vikram untied the rope of electric motor by the side of

well. Learned counsel submits that the possibility of implicating all

family members in connection with the present crime cannot be ruled

out. There are omnibus allegations against all appellants-accused

persons. Learned counsel submits that even if the prosecution case

is accepted as against appellant accused No.2 Ashok and appellant

accused No.3 Vikram, then there was no intention to commit murder

of deceased Dattatraya. Learned counsel submits that same is

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evident from the fact that all the accused persons went towards

common well without any weapon. It further appears from the

prosecution evidence that on reaching there, there was altercation of

words and quarrel had taken place between two families. Learned

counsel submits that had there been any intention to commit murder

and if all appellants-accused in furtherance of their common intention

went to the common well to eliminate deceased Dattatraya, without

waiting for time they would have instantly assaulted and killed him.

Learned counsel submits that even if the prosecution case is

accepted as it is as against the appellant accused No.2 Ashok and

appellant accused No.3 Vikram, it appears that the incident had

taken place without any premeditation in the heat of passion upon

sudden quarrel. Learned counsel submits that since the appellants

accused were without any weapon and allegedly lifted deceased

Dattatraya and thrown him in the water of well, it cannot be said that

the appellants accused had taken undue advantage or acted in cruel

or unusual manner. Learned counsel submits that the appellants

accused Nos. 2 and 3 Ashok and Vikram, respectively, are in jail

since the date of their arrest and as such, ends of justice would meet

if they are convicted for the offence punishable under Section 304

Part II of I.P.C. and sentenced them to suffer the imprisonment which

they have already undergone.

8. Learned A.P.P. submits that there are eye witnesses to the

incident. P.W.1 Sindhu and P.W.3 Macchindra are the eye witnesses

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to the incident. Their evidence cannot be discarded merely on the

basis that they are interested witnesses. Learned A.P.P. submits

that even if their evidence is scrutinised carefully, they appear to be

reliable and trustworthy witnesses and their evidence is consistent on

material aspects. P.W.1 Sindhu and P.W.3 Macchindra both have

consistently deposed that the appellants accused have lifted

deceased Dattatraya and thrown him in the well. There is no reason

to disbelieve their evidence. The medical evidence, which is

hypothetical in nature, cannot prevail over the ocular evidence.

Learned A.P.P. submits that the prosecution has proved the case

beyond reasonable doubt against the accused. The trial court has

rightly convicted the appellants accused.

9. Learned A.P.P. submits that on 13.3.2013 i.e. two days prior

to the incident, appellant-accused Nos. 2 Ashok and appellant

accused No.3 Vikram had been to the house of informant and given

threats. On 15.3.2013, all the appellants accused had been to the

common well together. This fact itself indicates that there was prior

concert of mind and in furtherance of their common intention; they

have committed murder of deceased Dattatraya. Learned A.P.P.

submits that during the course of investigation, the investigating

officer has got prepared a map Exh.58 through the Tahsil office. On

perusal of the said map, it is clear that there is parapet wall to the

said well and one place is also earmarked on the said well for

fetching the water. Learned A.P.P. submits that the appellant

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accused No.3 Vikram has lodged the complaint in respect of same

incident and on the basis of his complaint, N.C. No. 136 of 2013 for

the offences punishable under Sections 323, 504, 506 of I.P.C. came

to be registered against deceased Dattatraya and P.W.3 Macchindra.

Learned A.P.P. submits that appellant accused No.3 has thus

accepted that the incident had taken place near the common well.

Learned A.P.P. submits that there is no substance in this appeal and

the appeal is thus liable to be dismissed.

10. We have perused the material exhibits tendered by the

prosecution; the evidence of the prosecution witnesses, the

statement of the appellants-accused recorded under Section 313 of

Criminal Procedure Code, the evidence of the appellants-accused

themselves and the impugned judgment. After giving our thoughtful

reflection to the matter, we are wholly satisfied that there is some

substance in this appeal and the same must be partly allowed.

11. We have carefully gone through the evidence of P.W.1

Sindhu. She had deposed that on 13.3.2013, accused No.2 Ashok

and accused No.3 Vikram came to their house at the evening time

and threatened to kill them if they would start their electric motor on

the common well for watering the crops. It is rather an admitted fact

that there was dispute in respect of fetching of water from common

well between two families. The incident had taken place on

15.3.2013. On that day at about 9.00 a.m. deceased Dattatraya had

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gone to start the electric motor and following him at about 10.30 a.m.

P.W.1 Sindhu alongwith her son P.W.3 Macchindra had gone to the

said field with lunch tiffin. It further appears from the evidence of

P.W.1 Sindhu and P.W.3 Macchindra that a quarrel had taken place

between the informant, deceased Dattatraya and P.W.3 Macchindra

on one side and the appellants accused on other side. Thereafter,

the appellants accused allegedly thrown deceased Dattatraya in the

well and went away.

12. P.W.1 Sindhu in para 4 of her cross examination has admitted

that there are two separate electric motors installed by two families

i.e. the informant's family and the appellants' family on the said

common well. She has further admitted that there is no parapet wall

over the ground level of the well. She has also accepted that both the

electric motors were installed at a distance of 1 to 2 ft from the well.

We have carefully gone through the contents of the spot panchnama

Exh.45. It has been specifically stated in the spot panchnama that

the well is constructed with stone up to upper level to the extent of 15

ft. and one wheel is installed on two stones towards eastern side for

fetching the water. There is no reference in the spot panchnama that

there is parapet wall to the said common well. There is reference of

installation of two electric motors on the iron foundation alongwith

pipes laid in the well for fetching of water. We have also carefully

gone through map Exh.58 as pointed out by learned A.P.P.. We do

not find that the parapet wall is mentioned in the said map Exh.58.

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Even though considering the description of well and even on the

basis of admission given by P.W.2 Dr. Gaikwad, we are not inclined

to discard the evidence of eye witness in toto. It appears from the

prosecution evidence that the incident had certainly taken place near

the common well, wherein some members of both the families were

involved. On the basis of external injuries alongwith the

corresponding internal injuries on the person of deceased Dattatraya,

we are not inclined to discard the evidence of eye witnesses by

observing that deceased Dattatraya slipped in the well accidentally.

The medical evidence is always treated as hypothetical and cannot

prevail over the ocular evidence.

13. However, we find much substance in the alternate submission

made by learned counsel for the appellants Mr. Satej Jadhav that

there was dispute in respect of fetching of water from common well

between two families. The members of both the families are farmers.

There are no antecedents. As per the prosecution story, at the time

of incident, the appellants accused persons went towards the

common well without carrying weapons. The quarrel had taken place

near the well with altercation of words. It further appears from the

prosecution evidence that the incident had taken place without any

premeditation in the heat of passion upon sudden quarrel. Though

there was water in the well to the extent of 10 ft, however, the depth

of the well is near about 30 ft. Deceased Dattatraya was allegedly

thrown in the water of well from the height of 30 ft. In the given set of

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allegations, it cannot be said that there was intention to commit

murder. However, at the same time, it cannot be said that the

appellants accused had no knowledge that if deceased Dattatraya

was thrown from such a height in the water of well he may sustain

fatal injuries. It thus appears that even if the prosecution case is

accepted as it is, the accused seem to have committed offence of

culpable homicide not amounting to murder. So far as the

involvement of appellant accused persons in the alleged commission

of crime is concerned, we find that the appellant-accused No.1 Paraji

and appellant-accused No.4 Gayabai are entitled for benefit of doubt.

There are no direct allegations against them. Even no specific role

has been attributed to them. The appellant-accused No.1 Paraji was

70 years of age at the time of incident whereas appellant accused

No.4 Gayabai is a woman. P.W.1 Sindhu has given reference to the

incident dated 13.3.2013 when appellants-accused No. 2 Ashok and

accused No. 3 Vikram went to their house and given life threats to

deceased if they start the electric motor for watering the crops. It has

further come in their evidence that the appellant-accused No.3

Vikram has tried to untie the rope of electric motor and the altercation

of words had taken place between deceased Dattatraya and

appellants-accused No.2 Ashok and accused No.3 Vikram on

account of untying of rope of the electric motor by the side of well.

Thus, the inference could be drawn that appellants-accused No. 2

Ashok and accused No.3 Vikram without any premeditation, in the

heat of passion upon a sudden quarrel, had lifted deceased

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Dattatraya and thrown him in the water of well. We thus hold that the

appellant-accused No.1 Paraji Haribhau Pund and appellant-accused

No.4 Gayabai Vikram Pund are entitled for benefit of doubt.

14. So far as appellant-accused Nos. 2 and 3 i.e. Ashok and

Vikram, respectively, are concerned, they are young persons. As

observed in the foregoing paras, the incident had taken place without

any premeditation and intention. The appellants-accused Nos. 2 and

3 i.e. Ashok and Vikram, respectively, have committed the offence of

culpable homicide not amounting to murder and as such, they are

liable to be convicted for the offence punishable under Section 304

Part II of I.P.C. and certainly not under Section 302 r.w. 34 of I.P.C.

Thus, considering entire aspect of the case, we deem it appropriate

to alter the conviction of appellant accused No.2 Ashok Paraji Pund

and appellant accused No.3 Vikram Paraji Pund from Section 302

r.w. 34 of I.P.C. to Section 304 Part II of I.P.C. Both these

appellants-accused are in jail for more than eight years. In view of

the same, if they are convicted and sentenced to the imprisonment

which they have already undergone, that would meet the ends of

justice. The appellants-accused No. 1 Paraji and accused No.4

Gayabai are entitled for the benefit of doubt and thus, we acquit them

for all the charges levelled against them. Hence, the following order:-

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ORDER

I. Criminal appeal is hereby partly allowed.

II. The impugned judgment and order of conviction passed by

the Additional Sessions Judge, Ahmednagar dated

10.11.2014 in Sessions Case No. 177 of 2013 convicting the

appellant-accused No.1 Paraji Haribhau Pund and appellant-

accused No.4 Gayabai Vikram Pund for the offence

punishable under Sections 302, 323, 504, 506 r.w. 34 of

I.P.C. is hereby quashed and set aside.

III. The appellant-accused No. 1 Paraji Haribhau Pund and

appellant accused No.4 Gayabai Vikram Pund are hereby

acquitted of all the charges levelled against them. They are

on bail. Their bail bonds stand discharged.

IV. The impugned judgment and order of conviction passed by

the Additional Sessions Judge, Ahmednagar dated

10.11.2014 in Sessions Case No. 177 of 2013 convicting the

appellant accused No.2 Ashok Paraji Pund and appellant

accused No.3 Vikram Paraji Pund for the offence punishable

under Sections 323, 504, 506 r.w. 34 of I.P.C. is hereby

quashed and set aside and they are hereby acquitted of the

charges levelled against them under Sections 323, 504, 506

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r.w. 34 of I.P.C..

V. The impugned judgment and order of conviction passed by

the Additional Sessions Judge, Ahmednagar dated

10.11.2014 in Sessions Case No. 177 of 2013 convicting the

appellant accused No.2 Ashok Paraji Pund and appellant

accused No.3 Vikram Paraji Pund for the offence punishable

under Sections 302 r.w. 34 of I.P.C. and sentencing them to

suffer imprisonment for life is hereby altered and

instead

the appellant accused No.2 Ashok Paraji Pund and appellant

accused No.3 Vikram Paraji Pund are hereby convicted for

the offence punishable under Sections 304 Para II of I.P.C.

and sentenced to suffer imprisonment which they have

already undergone.

VI. The appellant accused No.2 Ashok Paraji Pund and appellant

accused No.3 Vikram Paraji Pund be set at free forthwith if

not required in connection with any other case.

VII. The appellants-accused No. 1 Paraji Haribhau Pund,

accused No.2 Ashok Paraji Pund, accused No.3 Vikram

Paraji Pund and accused No.4 Gayabai Vikram Pund shall

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execute P.B. of Rs.15,000/- each with one surety each of

the like amount to appear before the higher court as and

when the notice is issued in respect of any appeal or

petition filed against the judgment of this Court. Such bail

bonds shall remain in force for a period of six months from

the date of its execution.

VIII. Criminal Appeal is accordingly disposed of.

  (SHRIKANT D. KULKARNI, J.)                     (V. K. JADHAV, J.)

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