Ravindra Ambar Naik And Ors vs The State Of Maharashtra
2022 Latest Caselaw 13175 Bom

                                                  Cri. Appeal No.772/2015
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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                               BENCH AT AURANGABAD



                     CRIMINAL APPEAL NO.772 OF 2015



 1)       Ravindra Ambar Naik,
          Age 23 years, Occu. Agri.

 2)       Somnath Abhiman More,
          Age 22 years, Occu. Agri.

 3)       Anil Sukdeo More
          Age 23 years,

          No.1 R/o Bupkari,
          No.2 and 3 R/o Varde- Temhe
          Tal. Shahada, Dist. Nandurbar         ... APPELLANTS


          VERSUS


 The State of Maharashtra
 Through P.S.O., Police Station-
 Shahada, Tal. Shahada,
 Dist. Nandurbar
 (Copy to be served through the
 Office of the Public Prosecutor,
 High Court of Judicature of Bombay,
 Bench at Aurangabad)                           ... RESPONDENT



                                .......
 Mr. S.U. Chaudhari, Advocate for appellants
 Mr. P.G. Borade, A.P.P. for respondent - State
                                .......




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                                                                Cri. Appeal No.772/2015
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                                    CORAM :          R. G. AVACHAT, AND
                                                     R. M. JOSHI, JJ.

                  Date of reserving judgment : 14th December, 2022
                  Date of pronouncing judgment : 19th December, 2022


 JUDGMENT (PER : R.G. AVACHAT, J.):

This is an appeal against conviction. The

appellants, vide impugned judgment and order dated

3/9/2015, passed by learned Additional Sessions Judge,

Shahada in Sessions Case No.53/2012, have been convicted

for the offences punishable under Sections 302 read with

Section 34 of the Indian Penal Code and, therefore, sentenced

to suffer imprisonment for life and to pay fine of Rs.1000/-

each, in default to undergo simple imprisonment for 2

months. The appellants are also convicted for the offence

punishable under Section 324 read with Section 34 of the

Indian Penal Code and rigorous imprisonment for one year.

The substantive sentences of imprisonment have been

directed to run concurrently.

2. The facts giving rise to the present appeal are as

follows :

Bijubai (P.W.7) was residing along with her

Cri. Appeal No.772/2015 :: 3 ::

husband Bhima (deceased) at village Bhupkari, Taluka

Shahada, District Nandurbar. The couple is blessed which a

child. Appellant Ravindra along with his wife was residing in

the neighbourhood of the informant at village Bhupkari itself.

Appellant Somnath and Anil are the close relations of

appellant Ravindra. The appellants came together to the

house of the informant. It was about 7.30 p.m. They gave

call to Bhima (deceased). They questioned him as to why did

he insult Surekhabai (wife of appellant Ravindra). All of the

appellants mounted attack on Bhima. Appellant Ravindra

assaulted him with an axe. Appellants Somnath and Anil beat

Bhima with sticks. When the informant intervened, she too

was not spared. The informant went to village Prakasha. She

was apprehensive of the appellants. She stayed at village

Prakasha overnight. On the following day, she lodged the

First Information Report (F.I.R. - Exh.33).

3. Police had already arrived in the village pursuant

to a call by villagers. An inquest panchanama was drawn.

Based on the F.I.R. (Exh.33), crime came to be registered. It

was investigated as well. On completion of the investigation,

the appellants were proceeded against by filing a charge

sheet.

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4. On committal of the case, the trial Court framed

the charge (Exh.6). Appellants pleaded not guilty. The

prosecution examined 15 witnesses and produced in evidence

certain documents.

5. The trial Court, on appreciation of the evidence

before it, convicted and sentenced the appellants as stated

above.

6. Learned counsel for the appellants would submit

that, except the informant, no prosecution witness gave

evidence against any of the appellants. According to him, the

F.I.R. was lodged 28 hours after the incident. The informant

was not at the village. She was an interested witness. No

conviction could be based on the sole testimony of an

interested witness. He relied on a judgment of the Apex

Court in case of Anil Phukan Vs. State of Assam reported in

(1993) 3 SCC 282. He would further submit that, the

informant was a tribal woman. Admittedly, she did not

understand Marathi. The same suggests that, someone else

narrated the contents of the F.I.R. and her thumb impression

was simply obtained thereon. The learned counsel ultimately

urged for allowing the appeal.

7. Learned A.P.P. would, on the other hand, submit

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that, the informant was a tribal woman. The fact that none of

the witnesses stand by her indicate they have been won over.

She had no reason to falsely implicate any of the appellants.

When she had intervened, she too was assaulted. Her injury

certificate reinforces her case. Evidence of injured witness is

reliable one. The fact that other prosecution witnesses did

not stand by her, speaks in volumes to suggest of isolating the

informant. The police officer Vasant Mahale (P.W.14), who

recorded the F.I.R., testified to have understanding of Ahirani

language. His evidence suggests that, he translated into

Marathi, the contents of the F.I.R. given by the informant in

Ahirani. According to learned A.P.P., no particular number of

witnesses are necessary to sustain a conviction. The

testimony of a sole witness, if found to be reliable, can form

basis of conviction. The learned A.P.P. ultimately urged for

dismissal of the appeal.

8. Considered the submissions advanced. Perused

the evidence relied on. P.W.1 Ravindra Thakre and P.W.2

Navneet Pawar are the witnesses to the scene of offence and

inquest panchanama (Exh.17). Both of them did not stand by

the prosecution. Same is the case about the evidence of eye

witnesses P.W.3 to P.W.6.

Cri. Appeal No.772/2015 :: 6 ::

9. The informant Bijubai (P.W.7) is the widow of the

deceased. It is in her evidence that, on the fateful night, she

was home along with her husband (deceased Bhima) and their

child. The appellants came together to her residence. They

gave call to her husband. Both of them came out of their

house. The appellant Ravindra questioned Bhima as to why

did he insult his wife - Surekhabai. Bhima was sporting

underpant only. The appellants started assaulting him. The

appellant Ravindra assaulted on his head with an axe.

Appellants Somnath and Anil beat him with sticks. When she

intervened, appellant Somnath gave on her head a stick blow.

She got scared. She took her child in her arm and ran

towards village Prakasha. It is further in her evidence that,

since it was 10.00 in the night, she did not go to the police

station to report about the incident. Her evidence would

further suggest that, she took shelter in a temple at village

Prakasha. On the following morning, she came back to her

residence at village Bhupkari. The police had already arrived

in response to a call by police patil. She then went to

Shahada Police Station and lodged the F.I.R. (Exh.33).

10. Although the informant was a rustic tribal woman,

she stood the ground during searching cross-examination.

She admitted to have no understanding of Marathi language.

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Police Officer - P.W.14 Vasant testified that, he understood

Ahirani language. He translated the F.I.R. given by the

informant and then recorded it into Marathi.

11. P.W.12 Dr. Rajendra conducted autopsy on the

dead body of Bhima. He noticed 8 external injuries on his

person. The post mortem report (Exh.56) suggests the

deceased died of cardio respiratory arrest due to

haemorrhagic shock due to multiple injuries. There is also

injury certificate of the informant. It is at Exh.57.

12. It is true that the F.I.R. has been lodged after little

over 24 hours of the incident. The fact is, however, that, the

incident took place by 8.00 in the evening. The informant, a

rustic and tribal woman, was the only major person along with

the deceased at their residence. Her evidence that she was

frightened and, therefore, took shelter at a temple at village

Prakasha, could not be doubted. The eye witnesses who

stood by the prosecution during investigation appear to have

been won over when the trial commenced. The informant was

a victim. She too suffered head injury. On appreciation of

her entire evidence, supported by the medical evidence, we

do not find any reason to disbelieve her testimony. Section

134 of the Evidence Act states that, no particular number of

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witnesses shall, in any case, be required for the proof of any

fact.

13. On appreciation of evidence in the case, it is

evident that, appellant Ravindra assaulted the deceased with

an axe. He had a reason to intend to kill Bhima. It was a

tribal area. It is common knowledge that, tribals happen to

be armed with sticks. True, all the appellants assaulted the

deceased. Even they had come together. There is, however,

nothing to suggest all the three to have had a pre-concert to

eliminate the deceased. The injuries suffered by the deceased

and proved to be fatal could only be attributed to appellant

Ravindra. The other two appellants since assaulted the

deceased with sticks and there is nothing to suggest them to

have had shared common intention with appellant No.1

Ravindra to eliminate Bhima, we find the conviction of

Somnath and Anil for offence punishable under Section 302 of

the Indian Penal Code with the aid of Section 34 is

unsustainable. Their conviction on that count is, therefore,

required to be set aside. The role attributed to them and

injuries caused by them make them liable to be convicted for

offence punishable under Section 324 of the Indian Penal

Code. They would, therefore, be sentenced to suffer rigorous

imprisonment for three years with fine of Rs.1000/-.

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14. In the result, the appeal partly succeeds. Hence

the order :

ORDER

(i) The Criminal Appeal is partly allowed.

(ii) Appeal preferred by appellant Ravindra Ambar Naik

stands dismissed.

(iii) The order dated 3/9/2015, passed by learned Additional

Sessions Judge, Shahada in Sessions Case No.53/2012,

convicting the appellants Somnath Abhiman More and Anil

Sukdeo More for the offence punishable under Section 302

read with Section 34 of the Indian Penal Code and their

consequential sentence of life imprisonment and fine, is

hereby set aside. Both of them stand acquitted of the offence

punishable under Section 302 read with Section 34 of the

Indian Penal Code.

(iv) The appellants Somnath Abhiman More and Anil Sukdeo

More are hereby convicted for the offence punishable under

Section 324 of the Indian Penal Code and, therefore,

sentenced to suffer rigorous imprisonment for three years and

to pay fine of Rs.1000/- (Rupees one thousand) each. In

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default of payment of fine, they shall undergo simple

imprisonment for one month. Fine amount paid by these

appellants on sentence by the trial Court for offence

punishable under Section 302 of the Indian Penal Code be

adjusted towards fine imposed for offence punishable under

Section 302 of the Indian Penal Code.

(v) Both the appellants Somnath Abhiman More and Anil

Sukdeo More have been behind the bars for more than three

years. They be set at liberty forthwith if not required in any

other case since the sentences imposed upon them has

already been served out.

          ( R. M. JOSHI, J. )                       ( R. G. AVACHAT, J. )




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