Bombay High Court

Shesherao S/O. Nivrutti Dhok And Anr vs The State Of Maharashtra on 13 December, 2023

Author: Vibha Kankanwadi

Bench: Vibha Kankanwadi

2023:BHC-AUG:26033-DB

                                            -1-                Cri.Appeal.74.2018

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                             CRIMINAL APPEAL NO. 74 OF 2018
                                         WITH
                          CRIMINAL APPLICATION NO. 1923 OF 2023

              1.   Sheshrao S/o. Nivrutti Dhok,
                   Age : 45 years, Occu. : Agri.,

              2.   Mandabai W/o. Sheshrao Dhok,
                   Age : 40 lyears, Occu. : Agri.,

                   Both R/o. Samdarga,
                   Tq. Ausa, Dist. Latur.                        ... Appellants.

                          Versus

                   The State of Maharashtra                      ... Respondent.

                                               ...
                         Mr. Sachin S. Panale, Advocate for Appellant.
                         Mrs. Uma Bhosale, APP for Respondent - State.
                                               ...

                                     CORAM : SMT. VIBHA KANKANWADI AND
                                             ABHAY S. WAGHWASE, JJ.
                             RESERVED ON : 4th DECEMBER, 2023
                           PRONOUNCED ON : 13th DECEMBER, 2023

              JUDGMENT (PER ABHAY S. WAGHWASE, J.) :

1. Getting dissatisfied by the judgment and order of

conviction passed by learned Sessions Judge, Latur in Sessions

Case No. 100 of 2015, thereby convicting both appellants for

offence punishable under section 302 read with section 34 of

Indian Penal Code (IPC), instant appeal has been preferred by

invoking section 374 of the Code of Criminal Procedure (Cr.P.C.).

-2- Cri.Appeal.74.2018

2. To put it in brief, in trial court prosecution was

launched against present appellants on the premise that, on

07.08.2015, around 3:00 to 3:30 p.m., they assaulted deceased

Yuvraj with iron rod/stick causing him several injuries. On being

shifted and admitted to the hospital at Ausa, while undergoing

treatment, he expired in the evening around 7:00 p.m. and

therefore his son PW1 Samadhan, after funeral, lodged crime

against appellants at Bhada Police Station.

Investigation was carried out and appellants were

charge-sheeted and on denial of charge were tried. On conclusion

of trial, after hearing both sides and on appreciating the evidence

on record, learned Sessions Judge held charges proved and

awarded life imprisonment to both appellants, which is now

assailed before us.

3. In support of its case, prosecution seems to have

adduced evidence of in all 10 witnesses and documentary evidence

like FIR, inquest, PM and spot panchanama etc.

On re-appreciating and re-evaluating the evidence by

prosecution in trial court, it is revealed that, FIR is by son, but he is

-3- Cri.Appeal.74.2018

not a witness. After interacting with his father i.e. on receipt of oral

dying declaration, crime was registered. However, prosecution

claims that, there are two witnesses, who had allegedly seen the

occurrence i.e. PW2 Lalasaheb and PW7 Jagannath. Rest are

medical expert, panchas and Investigating Officer etc. Therefore,

we propose to visit, analyze and discuss so called direct eye

witnesses.

4. PW2 Lalasaheb in his evidence at Exh.39 testified that,

he own agricultural field and field of appellant are near each other,

whereas field of deceased Yuvraj is at some distance from his land.

Regarding occurrence he deposed that, on 07.08.2015, while he

was sitting in cattle shed near his field, PW7 Jagannath was also

available in his field and appellant Sheshrao was sitting near his

cattle shed. Around 3:00 p.m., when deceased was coming from his

village, witness deposed that, appellant pulled his legs and made

him fall down, thereafter called accused appellant no.2 Mandabai

and they both assaulted Yuvraj with iron rod. Witness claims that

he tried to intervene, but they prevented him. According to him,

PW7 Jagannath was also watching the occurrence from his

agricultural field. Witness claims that, he went near deceased, gave

him water and even placed jute gunny bag on the person of

deceased as it was raining and thereafter he called Narsing Dhok,

-4- Cri.Appeal.74.2018

who further gave call to some other. Samadhan came to the spot

and called for a rickshaw and injured was taken to village. He

identified Article-1 with the same Article which was used in

assault.

He is subjected to extensive cross, but we will only deal

with the relevant part. It has come in his cross that, his cattle shed

is facing towards north. At that time, no agricultural activity was

going on. He admitted that, he did not narrate the occurrence to

police at the time of drawing spot panchanama. He denied about

accompanying PW1 Samadhan to the court. He admitted that,

when he informed Narsing about occurrence, Samadhan came to

the spot after 15 minutes. He denied that, he gave statement after

discussion with villagers. He further admitted that, Datta Dhok had

beaten accused and had pushed him into the well and since then he

became differently abled and was required to use walking stick. He

admitted that injured was made to stand and then lie down in the

rickshaw. He is questioned about field of Jagannath and its

surroundings. Omissions are brought regarding receiving call from

Samadhan. He stated about his statement was recorded in the

Ausa Court also. Rest is all denial.

5. The other eye witness is PW7 Jagannath and his

evidence is at Exh.52. It has come in his evidence that, occurrence

-5- Cri.Appeal.74.2018

took place at 3:00 p.m. on 07.08.2015 and at such time he was

present in the field. Field of accused is at the western side of his

field. He claims that, he saw deceased going to the agricultural

land from village and further saw appellants assaulting deceased.

He is unable to give the nature of object. According to him, assault

was made by stick. He further claims that as it was raining, he

went inside the cattle shed. That, Lalasaheb gave call to Samadhan

and took Yuvraj in auto-rickshaw. He further claims that when he

was returned to his house, appellant said to him that "Waghala

Marle".

While under cross, initially questions are regarding

locations and surroundings of the field about land holdings of this

witness. He is unable to state whether there was dispute between

Madhav Dhok and appellant on account of cutting tree. He

admitted that he was taking rest in the cattle shed from 3:00 to

4:00 p.m. Rest is all denial. Omission is brought about saying that

he killed "Waghala".

6. Admittedly, PW1 Samadhan son of deceased has

reached the spot after occurrence and had shifted injured to the

hospital. Informant son Samadhan claims that after getting

telephonic call about assault from Lalasaheb, he walked to the field

and there he found his father lying with injuries. He claims that,

-6- Cri.Appeal.74.2018

his father told about Sheshrao and Mandabai assaulted him with

iron rod and his father being shifted to Government hospital, Ausa

but he expired.

7. PW2 Lalasaheb and PW7 Jagannath, who claim to have

seen the assault, are consistent about the occurrence taking place

between 3:00 to 3:30 p.m. They are at their respective fields in the

very vicinity and their such evidence has remained unshaken.

Therefore, they are natural witnesses. PW2 Lalasaheb attributed

assault by use of iron rod after deceased made to fall by appellant

after pulling his legs. PW7 Jagannath also claims about seeing

assault on deceased, but by a stick.

8. PW6 Dr. Radhey Khetre, autopsy doctor who has

stepped into witness box, claims to have gone through the inquest

and thereafter conducted autopsy on 07.08.2015 itself and he

claims to have noticed 29 injuries comprising of abrasions,

lacerated wound, tram-tract contusions and multiple contusions.

According to medico legal expert, injury nos.22 and 23 along with

internal injuries are sufficient to cause death individually in

ordinary course of nature and rest of the injuries collectively can

cause death in the ordinary course of nature. He further opined

that, injuries are defence injuries in assault and are possible by

stick like object.

-7- Cri.Appeal.74.2018

9. Learned counsel for appellant has pointed out that

appellant Sheshrao was differently abled and he used walking

stick, which is said to be made by aluminum/iron. Said article is

shown to be seized in presence of PW4 Ratnakar from appellant on

08.08.2015 i.e. the day after the occurrence. PW4 Ratnakar has

testified that police seized walking stick from appellant in his

presence vide panchana (Exh.43). Only cross to this witness by

defence is that it is the police, who told him that, accused has

produced stick and that walking stick is easily available in the

market. He admitted that, accused was disabled, but he is unable to

state whether another stick was provided to him for walking. He

further answered that the stick is of aluminum metal and it is

hollow.

10. Resultantly, defence also by putting such suggestion

does not seem to be seriously disputed about walking aluminum

stick being seized from Appellant Sheshrao.

11. Learned counsel for appellant would submit that, going

by the story of prosecution and even taking into account of

evidence of PW2 Lalasaheb and PW7 Jagannath, without admitting

its contents, he would emphatically submit that it is not an offence

-8- Cri.Appeal.74.2018

attracting section 302 of IPC as there is no premeditation, motive

or intention to kill. According to him, at the most the occurrence

would invite offence of culpable homicide not amounting to

murder.

Per contra, learned APP would point out that, deceased

had suffered around 29 injuries and therefore offence is nothing

short of murder.

12. On above issue, if we carefully evaluate the evidence, it

is emerging that while deceased Yuvraj was proceeding towards

his own field, PW2 Lalasaheb claims that, he pulled legs of

deceased, made him fall and after calling appellant no.2, assault by

use of walking stick was carried out. Some previous occurrence by

another person rendering appellant disabled after making him fall

in the well was said to be the motive. However, there is no

evidence in that direction and therefore it is not open for us to

assume and presume regarding existence of motive, but here, there

is eye witness account of not one witness, but of two witnesses.

Seizure of a walking stick is also caused, which was in fact a means

for appellant Sheshrao to walk, but what actually triggered the

occurrence has not come on record.

-9- Cri.Appeal.74.2018

13. PW2 Lalasaheb and PW7 Jagannath are available in

their own respective fields and they merely speak about seeing

beating. What conversation triggered the incident, has

unfortunately not come on record.

Be it so, deceased had suffered as many as 29 injuries

and therefore, in our considered opinion, offence of culpable

homicide not amounting to murder attracting offense of section

304 Part I of IPC definitely appears to have been committed. We

draw such inference on the basis of circumstances, in which

occurrence has taken place, the nature of article used and the

impact caused due to the assault.

14. However, it is pertinent to note that, there is only use

of one aluminum walking stick that too by appellant Sheshrao

according to both eye witnesses. No role whatsoever is attributed

to appellant Mandabai. Consequently, there being nothing on

record to show common intention, her implication seems to be

apparently unwarranted.

15. We have gone through the impugned judgment under

challenge. We have also examined the findings and reasons

assigned by learned trial Judge, in our opinion, implication of

appellant No.2 Mandabai is without any evidence and therefore

-10- Cri.Appeal.74.2018

interference to that extent becomes necessary. Even there is no

evidence suggesting intentionally and knowingly committing

murder. Therefore even the findings of learned trial Judge

regarding prosecution proving offence of section 302 of IPC is

required to be set aside. Accordingly, we interfere to the extent of

conviction and sentence and modify it as under :

ORDER

(I) Criminal Appeal is partly allowed.

(II) The conviction and sentence awarded to the appellant

No.1 Sheshrao S/o. Nivrutti Dhok by learned Sessions Judge, Latur

in Sessions Case No.100 of 2015 on 09.01.2018 is altered from

Section 302 of IPC to Section 304 Part I of the IPC and he is

sentenced to suffer imprisonment already undergone by him.