Bombay High Court
Sahebrao Umakant Waghmare And Others vs The State Of Maharashtra on 25 October, 2024
2024:BHC-AUG:26398
{1} CRI APPEAL NO. 232 OF 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 232 OF 2004
1. Sahebrao s/o Umakant Waghmare
Age: 40 yrs., Occu.: Teacher.
2. Vijaykumar s/o Ramrao Waghmare
Age: 40 yrs., Occu.: Agri.,
R/o. Ashti, Tq.Hadgaon,
Dist.Nanded.
3. Jagjivan s/o Ramrao Waghmare
Age: 26 yrs., Occu.: Teacher.
4. Shilratan s/o Ramrao Waghmare
Age: 33 yrs., Occu.: Labour
All R/o. Ashti, Tq.Hadgaon,
Dist.Nanded. ..Appellants
(Orig. Accused
Nos.7, 9, 10 & 11)
Versus
. The State of Maharashtra
Through Police Station, Tamsa,
Tq.Hadgaon, Dist.Nanded. ..Respondent
....
WITH
CRIMINAL APPLICATION NO. 4376 OF 2024
IN APPEAL/232/2004
1. Sahebrao s/o Umakant Waghmare
Age: 52 yrs., Occu.: Service as Head Master,
R/o. At Post. Ashti, Tal. : Hadgaon,
Dist.Nanded.
At present : Harsh Nagar, Behind back Kasturba
Hospital, Nanded, Dist.Nanded.
{2} CRI APPEAL NO. 232 OF 2004
2. Vijaykumar Ramrao Waghmare
Age: 65 yrs., Occu.: Agri.,
R/o. At Post : Ashti, Tal. : Hadgaon,
Dist.Nanded.
3. Jagjivan s/o Ramrao Waghmare
Age: 53 yrs., Occu.: Labour,
R/o. At. Post. Ashti, Tal.Hadgaon,
Dist.Nanded. ..Applicants
Versus
. The State of Maharashtra ..Respondent
.....
Advocate for Appellant - Applicants : Mr. Rajendra N.Chavan
APP for Respondent - State : Mr.K.K.Naik
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 21 OCTOBER, 2024
PRONOUNCED ON : 25 OCTOBER, 2024
JUDGMENT :
-
1. In this appeal, there is challenge to judgment and order of
conviction dated 07-02-2004 passed by 2nd Adhoc Additional Sessions
Judge, Nanded in Sessions Case No.28 of 2002 recording guilt of the
appellants for offence under Section 324 of the Indian Penal Code
(IPC).
FACTS LEADING TO THE TRIAL
2. On report lodged by PW3 Sanjay, Tamsa Police Station
{3} CRI APPEAL NO. 232 OF 2004
registered Crime No.25 of 2000 for offence under Sections 147, 148,
323, 324, 326 307 read with 149 of the IPC against in all eleven
accused on the premise that on 29-04-2000, there was quarrel
between informant PW3 Sanjay and accused persons as an
application was tendered with Gram Panchayat for removing debris
from a well. Said quarrel had taken place at 07:30 p.m. On next
day i.e. on 30-04-2000 at around 06:30 a.m., accused Vijaykumar
Waghmare getting armed with sword came in the vicinity of
informants' resident and questioned as to who gave application
against him in Gram Panchayat. That PW3 Sanjay tried to reason
him with. It is alleged that Vijaykumar, Yeshwant Pradhan, Ajay
Waghmare, Sahebrao Waghmare, Pratap Pradhan came armed with
articles like lathies, axes, sword and kathis and assault was mounted
on informant as well as Jalba Vithal Kamble, Madhav Waghmare,
Uttam Kishan Kamble, Laxmibai Waghmare, Sakhubai Kachru
Waghmare. That injured were taken to hospital where PW3 lodged
report exh.35, on the basis of which Police registered crime.
PW14 Kumbhar (PSI), who conducted investigation, after
gathering sufficient evidence, chargesheeted accused for above
offence.
Learned trial Judge, who conducted trial vide Sessions Case
{4} CRI APPEAL NO. 232 OF 2004
No.28 of 2002, appreciated oral evidence of in all sixteen witnesses
examined by prosecution and documentary evidence like medical
certificates, FIR, panchanama, recovery panchanama etc. and by
judgment and order dated 07-02-2004, all eleven accused were
acquitted from offence under Sections 147, 148, 307 read with 149
of the IPC and Section 135 of the Bombay Police Act. However,
prosecution case was accepted for commission of offence under
Section 324 of the IPC against all accused and they were held guilty
and directed them to execute bond of Rs.10,000/- for good behaviour
for a period of three years on condition that the accused shall not
indulge in deviational conduct and shall keep peace at the village.
It is the above judgmen,t which is now taken exception to, by
way of filing instant appeal.
SUBMISSIONS
On behalf of appellants :
3. Learned Counsel for the appellants pointed out that during
pendency of appeal, appellant no.4 - Shilratan Ramrao Waghmare
has expired on 29-05-2006. Copy of death certificate of accused
no.4 - Shilratan Ramrao Waghmare is placed on record and it is
prayed that the appeal be abated against appellant no.4.
{5} CRI APPEAL NO. 232 OF 2004
4. Learned Counsel for the appellants pointed out that eleven
accused were tried and chargesheeted, but prosecution could not
define or specify role of appellants. He pointed out that though there
are allegations of use of sword, the same is not recovered. He
pointed out that even injuries are not proved to be due to iron rod.
He pointed out that indiscriminately names are given. That there
was previous quarrel and cross cases. Learned Counsel pointed out
that appellant no.1 Sahebrao was at his work place, but still he is
named. It is pointed out that it has come in the cross-examination of
PW2 Madhav that at the relevant time, appellant no.1 Sahebrao was
at Nanded, however, still learned trial Court convicted him also.
Thus, according to him, there is incorrect appreciation of evidence by
the learned trial Court. He pointed out that on one hand, learned
trial Court has held that recovery is not proved, but still conviction
has been recorded for offence under Section 324 of the IPC.
Therefore, according to him, learned trial Court has not considered
evidence in its entirety and findings are not in consonance with the
evidence and hence, according to him, such judgment cannot be
allowed to be sustained.
On behalf of State :
5. Opposing the above submissions, learned APP pointed out that
{6} CRI APPEAL NO. 232 OF 2004
prosecution has established the case by examining eye witnesses as
well as injured witnesses. That they all are consistent. That roles of
accused are crystalized by each of the witnesses. He pointed out that
their evidence has not been disturbed or shaken during cross-
examination. He also pointed out that injured were taken to hospital
and the PW15 Dr.Venkat Dhage, examining Doctor, who noticed
injuries, is also examined by prosecution. Therefore, it is his
submission that there is direct witness account and medical witness
account. Hence, according to him, learned trial Judge has not
committed any error whatsoever in recording guilt of accused for
offence under Section 324 of the IPC as both recovery as well as
essential ingredients for attracting charges were patently available.
PROSECUTION WITNESSES
6. In support of its case, prosecution has adduced evidence of in
all sixteen witnesses. Their status and role is as under :
PW1 Yeshwant Sonba Kamble is pancha to spot panchanama exh.26.
PW2 Madhav Sakharam Kamble is pancha to memorandum of
disclosure and recovery at the instance of accused Babu Hiraman
Waghmare, Yeshwant Gyanoba Pradhan and Umakant Vithoba
Waghare vide memorandum of disclosure exh.28, 29, 31 and 33.
{7} CRI APPEAL NO. 232 OF 2004
PW3 Sanjay Kishanrao Kamble is injured informant.
PW4 Anil Jalba Waghmare is injured witness.
PW5 Bapurao Shivram Waghmare is injured witness, but he did not
support prosecution.
PW6 Laxman Limbaji Jadhav is eye witness as well as injured
witness.
PW7 Paresh Ganpatrao Kadam is eye witness.
PW8 Yeshwant Bhivaji Waghmare is husband of injured.
PW9 Jalba Punjaji Waghmare is eye witness.
PW10 Ganpati Deepaji Kadam is eye witness and injured.
PW11 Jalba Vithal Kamble is eye witness and injured.
PW12 Datta Khandoji Hulkane is injured witness but he did not
support prosecution.
PW13 Bhagwan Limbaji Jadhav is eye witness.
PW14 Dattatray Dnyandev Kumbhar and PW16 Vinayak Bapurao
Mahaanwat are Investigating Officers.
{8} CRI APPEAL NO. 232 OF 2004
PW15 Dr.Venkat Gangadharrao Dhage is the Medical Officer, who
examined injured and issued MLC.
EVIDENCE IN TRIAL COURT
7. Here Evidence if PW3 Sanjay, informant, PW4 Anil, PW6
Laxman, PW7 Paresh, PW8 Yeshwant, PW9 Jalba, PW10 Ganpati,
PW11 Jalba and PW13 Bhagwan and PW15 Dr.Venkat Dhage is
crucial and is of significance.
8. PW3 Sanjay, who is informant has deposed as under :
"2. On 30-04-2000 at about 06:30 a.m. Vijaykumar Waghmare
returned from his land. He had a sword in his hand. At that
time Vijaykumar Waghmare started crying loudly by showing
the sword. He had asked as to who gave application against
them. We tried to convince Vijaykumar Waghmare by stating
that the well belongs to Government and he should not quarrel
with us. At that time, accused Yeshwant Pradhan, Ajay
Waghmare, Vijay Waghmare, Ashok Waghmare, Sahebrao
Waghmare and Pratap Pradhan came at the spot. They were
armed with Lathies, axes and swords as well as Kathies. They
all started beating myself, Jalba Vithal Kamble, Madhav
Waghmare, Uttam Kishan Kamble, Laxmibai Waghmare,
Sakhubai Kachru Waghmare. In the incident, accused Vijay beat
me by a sword above right arm. Accused Yeshwant Pradhan
beat me by a stick on my head right portion. I sustained
{9} CRI APPEAL NO. 232 OF 2004
injuries. Thereafter, we went to dispensary of our village and
thereafter we were referred by the Police to Government
Hospital, Hadgaon. Before we went to the Government
Hospital, Hadgaon. I lodged police complaint against accused
persons. The complaint now shown to me bears my signature.
Its contents are true and correct. It is at Exh.35."
9. PW4 Anil is injured witness. He deposed as under "
"1. On 30-04-2000 at about 07:00 a.m. while I was returned
after milking from the side of Ambedkar Putala I heard cries of
quarrel. Thereon I went towards the spot of incident situated
near Ambedkar Putala. At the spot of the incident Vijaykumar
Waghmare had in his hand a sword. Accused Umakant
Waghmare hit by a stick on left hand. On fingers of left leg by a
stone thrown by Ajay Waghmare hit. Yeshwant Pradhan,
Shilratan Waghmare, Jagjivan Waghmare and others were
present at the spot of the incident. Due to injury sustained by
left bone on left leg I left the spot. I was given treatment at
Rural Hospital Hadgaon at the instance of the Police. I identify
muddemal article no.3 stick. It is not the stick by which accused
Umakant hit me. I am now shown muddemal article no.2 Babul
stick. I identify by article no.2 stick."
10. PW6 Laxman is eye witness as well as injured witness. He
deposed as under :
1. The incident took place on 30-04-2000 at about 07:00 a.m.
{10} CRI APPEAL NO. 232 OF 2004
near Ambedkar Putala at our village. At the time I cleaning my
teeth at my house. On hearing cries of quarrel I went towards
the spot of incident. All the accused persons were present at the
spot of incident. The accused persons beat Sanjay Kamble and
others. Accused Vijay Waghmare gave a stroke by sword on
fore-head of Sanjay Kamble. Shilratan Waghmare beat by Kathi
to Madhavrao. Yeshwant Pradhan beat Shivram Waghmare by a
stick. Thereafter, accused Prakash, Sahebrao, Ajay, Pratap
pelted stones on us. I was beaten by accused Jagjivan
Waghmare by a stick. The accused Jagjivan beat me because I
belongs to the group led by Sanjay Kamble. The incident of
quarrel took place because Sanjay Kamble and others had given
an application to Gram Panchayat requesting to remove debris
from the well."
11. PW7 Paresh is eye witness. He deposed as under :
"1. ...............At the time of the incident I was drinking tea at
my house. I heard cries of quarrel. Thereon I rushed to the
spot of the incident. When I reached the spot of incident I
heard and saw accused Vijaykumar Waghmare was loudly
asking who gave application for removing debris from the well.
Accused Yeshwant Pradhan, Umakant Waghmare alongwith the
mob were present at the spot of incident. Vijaykumar
Waghmare was armed with sword and the others were armed
with stick. Accused Vijaykumar Waghmare struck on the upper
portion of left hand of Sanjay Kamble by a sword. Sanjay
Kamble also sustained injuries on his head."
{11} CRI APPEAL NO. 232 OF 2004
12. PW8 Yeshwant is husband of injured. He deposed as under :
"1. The incident took place on 30-04-2000 at about 7.30
a.m. to 8.00 a.m. infront of Babasaheb Ambedkar Putala at our
village. At the time of the incident I was sitting on Oatha of my
house situated near the statue of Dr.Babasaheb Ambedkar. At
that time accused Vijaykumar came to the spot. Vijaykumar was
armed with a sword. He was loudly asked the residents to come
forward by further asking who gave application for removing
debris from the well. Thereon all the accused came the spot.
Accused Shilratan was armed with a Kathi. Umakant
Waghmare armed with a stick, Yeshwant Pradhan was also
armed with stick, Babu Hiraman was armed with iron rod. The
rest of the accused were armed with stone. Thereon I went to
the spot from my house. Thereon my wife Laxmibai was beaten
by Katti on her forehead by accused Shilratan. I tried to
convince the accused that the well does not belongs to us and
they should not quarrel. They did not listen and went on
beating the others. Police referred my wife for treatment at
Rural Hospital, Hadgaon from where my wife was referred for
treatment at the Government Hospital, Nanded."
13. PW9 Jalba is eye witness. He deposed as under :
"1. The incident took place before about two years in the
early morning near the Ambedkar Putala. At that time I had
came to my house from my Gotha and then I heard cries of
quarrel. Thereon I rushed towards the spot of incident. I saw
accused Vijaykumar was armed with sword. Accused Shilratan
{12} CRI APPEAL NO. 232 OF 2004
was armed with a Kathi. Jagjivan was armed with a stick.
Yeshwant Pradhan was armed with stick. Pratap Pradhan was
armed with stick. Yeshwant Pradhan beat Sanjay Kamble.
Yeshwant Pradhan also beat me by stick on my waist. Madhav
sustained head injury and injury to his left ear (pinna).
Shilratan gave a stroke by Katti on head of Jalba. Thereafter all
the injured were taken to the Police Station. The quarrel ensued
in connection with the removal of debris from the well in our
locality."
14. PW10 Ganpati is eye witness and injured. He deposed as
under :
"1. The incident took place on 30-04-2000 at about 07.00 a.m.
near Ambedkar Putala at our village Ashti. The incident took
place in connection with the dispute over removing debris from
a well in our locality. At the time of the incident I was
proceeding from my house to provision shop. I saw the
incident. At the time of the incident, accused Vijaykumar was
armed with sword, Shilratan was armed with Katti, accused
Babu was armed with iron rod. Umakant was armed with a
stick. Kishan Kamble, Maroti Kamble, Madhav Waghmare beat
Sanjay Kmable and others. I was hit by a stone pelted by
accused Umakant."
15. PW11 Jalba is eye witness and injured. He deposed as under :
"1. The incident took place before about two years. At the time
of the incident at about 7.00 a.m. I was returning after
{13} CRI APPEAL NO. 232 OF 2004
attending call of nature. When I had reached at the spot of
accused Shilratan Waghmare beat me by Katti on my right
portion of head. Vijaykumar Waghmare was present at the spot
and he was armed with a sword. Yeshwant Pradhan was armed
with a stick. Accused Babu Hiraman Waghmare was armed
with a iron rod. After I received stroke by Katti I did not
understood what happened. I regain my conscious after about
3-4 days."
16. PW13 Bhagwan is eye witness. He deposed as under :
"1. The incident took place at about 07:00 a.m. before about
three years. It was Sunday. I was returning from Medical
Stores and I saw the incident. I saw accused Vijay Kumar
Waghmare while inflicting a stroke of sword on the head of
Madhav. I saw accused Shilratan while inflicting stroke by Katti
on the head of Jalba Vithal Kamble. Jagjivan Waghmare,
Sahebrao Waghmare, Ajay Waghmare, Ashok Waghmare,
Babusha Waghmare, Pratap Pradhan were armed with stones
which they pelted stones. On receiving injuries Madhav Ramji
and Jalba Vithal fell to the ground. Thereon I ran away due to
frightening."
17. PW15 Dr.Venkat Dhage is Medical Officer, who has examined
injured and issued MLC. On examination of Sanjay Kamble, he found
following injuries :
01. CLW on right side of occipital region of scalp 3x1x1/2cm.
{14} CRI APPEAL NO. 232 OF 2004
02. Abrasion on forehead at centre - 1 x 1/2cm.
03. Contused abrasion on right shoulder anteriorly - 4x3 cm.
04. Contused lacerated wound on right little finger on terminal phalyns on
polmor aspect 1x1x1/2 cm.
05. Abrasion on right leg anteriorly at upper third.
06. Contusion on left forearm at lower third and posteriorly 5x4 cm.
On examination of Shriram Ranji Waghmare, he found following
injuries :
01. CLW on right ring finger on palmar aspect terminal phalynx - 2 x 1 x 1
½ cm.
02. Contusion on left elbow posteriorily - 7 x 4 cm.
03. Contusion on forehead left side 4 x 3 cm.
On examination of Jalba Vithal Kamble, he found following injuries :
01. Sharp edge injury fracture on left occipital parietal region of scalp - 7 x
4 cm. X bone deep.
On examination of Madhav Ramji Waghmare, he found following
injuries :
01. Linear abrasion on back of neck - 12 cm length horizontal.
02. Contusion on back of neck and inter scapular area - 11 x 3 cm.
03. Linear abrasion on right forearm , ant middle third - 5 cm length
oblique.
04. Contusion on right forearm.
05. CLW left side of frontal and parietal region of scalp 7 x 2 x bone deep.
06. CLW right parietal occipital region of scalp - 4 x 3 cm. X bone deep.
07. CLW let side of neck posterior to ear pinna - 4 x 3 x 1 cm.
08. Contusion on left hand dorsum 5 x 4 x 1 cm.
09. Contusion on left arm anterior and laterally at middle and lower third
part - 7 x 5 cm.
{15} CRI APPEAL NO. 232 OF 2004
On examination of Laxmibai Yeshwant Waghmare, he found
following injuries :
01. CLW left side of forehead ½ x ½ x ½ cm.
02. Contusion right scapular region of back 5 x 4 cm.
On examination of Arun Kachru Waghmare, he found following
injuries :
01. CLW on right side of forehead and frontal region of scalp 3 x
1 x ½ cm.
02. Contusion right side of forehead - 5 x 4 cm.
On examination of Sakhubai Kachru Waghmare, he found following
injuries :
01. Contusion on right forearm anterior third and laterally at upper
third 7 x 4 cm.
02. Contusion on right infrascapulor region of back and lumber region 7
x 4 cm.
On examination of Uttam Laxman Kamble, he found following
injuries :
01. ClW on forehead at centre 2 x 1 x ½ cm.
02. Stab wound on left infrascapular region of back - 2 x 1 x 1 cm.
03. Contusion on right side of back at scapular region - 5 x 4 cm.
04. Contusion on left leg, anterrorily at middle third - 6 x 3 cm.
On examination of Bapurao Sonba Waghmare, he found following
injuries :
{16} CRI APPEAL NO. 232 OF 2004
01. CLW left side of back at interscapular region 2 cm away spine - 4 x 1 x
½ cm.
On examination of Anil Jalba Waghmare, he found following
injuries :
01. Abrasion left elbow posteriorly - 2 x 1 cm.
02. ClW on left leg anteriorly lower third - 2 x 1 x 1 cm.
On examination of Maroti Kamble, he found following injuries :
01. Contusion on left side of occipital region of scalp - 4 x 3 cm.
On examination of Raju Kishan Kamble, he found following injuries :
01. Contusion on right thigh, anterior laterally at lower third- 7x4 cm.
02. Contusion on right buttuck - 7 x 4 cm.
03. Contusion on left wrist dorsum - 2 x 1 cm.
ANALYSIS
18. At the outset, it is noted that during pendency of this appeal,
appellant no.4 - Shilratan Ramrao Waghmare expired. Learned
Counsel for appellants has also placed copy of death certificate on
record. In view of the same, appeal as against appellant no.4 -
Shilratan Ramrao Waghmare stands abated and only appeal of
appellant nos.1 to 3 is considered.
{17} CRI APPEAL NO. 232 OF 2004
19. Pleading innocence and pointing out to the above evidence as
well as observations and conclusion drawn by the learned trial Judge,
principle grounds raised by learned Counsel for the appellants are
that firstly due to previous quarrel, there is false implication;
secondly out of alleged eleven witnesses, only three injured are
examined; fourthly material witnesses are not examined and fifthly
when learned trial Court disbelieved recovery evidence, conviction
under Section 324 of the IPC does not sustain.
On above lines, evidence of prosecution witnesses is put to
minute scrutiny and it is emerging that genesis of the incident is
some application tendered with Government authorities for
extracting debris from a well. Evidence of PW3 Sanjay, informant
shows that on 29-04-2000 evening there was some quarrel between
informant and accused in said backdrop. Informant has specifically
deposed that at around 06:30 a.m. on the next day morning i.e.
30-04-2000, accused Vijaykumar came armed with a sword and
started loudly questioning as to who tendered application with the
Government authorities. PW3 Informant, in his evidence at exh.34,
stated that after being questioned, while he was trying to reason out
and convince accused Vijaykumar, other accused, whose names are
given in testimony, also came at the spot and informant has stated
{18} CRI APPEAL NO. 232 OF 2004
that they were armed with articles like lathies, axes, swords. He
deposed about he being hit by sword on right arm by accused
Vijaykumar and by stick by Yeshwant. He has also stated that all
accused started beating him as well as others namely Jalba Vithal
Kamble, Madhav Waghmare, Uttam Kishan Kamble, Laxmibai
Waghmare, Sakhubai Kachru Waghmare, who came to intervene.
On visiting his cross-examination, only omission brought is
regarding article kathi. Infact suggestion is given that article was not
a kathi but a bambu stick. The manner of cross-examination suggests
that occurrence is not seriously disputed rather it is got confirmed as
timing of the occurrence and previous quarrel dated 29-04-2000 are
brought on record in paragraph no.2 of the cross-examination. In
paragraph no.3 some elections, political rivalry and previous criminal
cases are brought on record. In paragraph no.4 questions are put
regarding location of house of informant, its surroundings and scene
of occurrence. Again in paragraph no.5 omission is brought as to
accused Vijaykumar questioning who gave the application. Then
there are questions about medical experts, treatment etc.
Likewise PW4 Anil named accused Vijaykumar to be armed
with sword, Umakant hitting him with a stick on his left leg whereas
he has marked presence of Shilratan, Jagjivan.
{19} CRI APPEAL NO. 232 OF 2004
Even paragraph nos.2 and 3 of the cross-examination shows
that there is no serious dispute over the occurrence.
PW6 Laxman also is a star witness as he has also in his
evidence deposed about accused being present at the spot and
beating to Sanjay Kamble. According to him, accused Vijay gave
stroke of sword on forehead to Sanjay Kamble while Shilratan beat
Madhavrao by means of Kathi. He himself was beaten by Jagjivan by
a stick and he has also testified about background of the occurrence.
As like others, even paragraph no.2 of his cross-examination
shows that there is no challenge to the occurrence.
PW7 Paresh and PW8 Yeshwant are independent eye witnesses
and they have also narrated about the occurrence.
In cross-examination of these witnesses also nothing adverse
has been brought on record, rather occurrence itself got confirmed
and proved.
Again PW9 Jalba Waghmare also testified about the occurrence
and he himself being hit by accused Yeshwant with stick.
Likewise PW10 Ganpati and PW11 Jalba Kamble are both
deposing about seeing the occurrence and stones being pelted
towards PW10 Ganpati by accused Umakant and PW11 Jalba being
hit by Kathi by accused Shilratan.
{20} CRI APPEAL NO. 232 OF 2004
Even PW13 Bhagwan has deposed about witnessing incident.
Therefore, all above witnesses have remained steadfast as
regards to occurrence is concerned.
PW15 Dr.Venkat Dhage, medical expert, who has also stepped
in the witness box has deposed about examining above witnesses and
he has identified injury certificates issued by him. Consequently, here
there is injured witness account, injured eye witness account
supported by medical account.
20. Learned Counsel for the appellants would specifically agitate
that appellant no.1 Sahebrao Umakant Waghmare is falsely
implication. He pointed out that infact appellant no.1 Sahebrao was
at his workplace and there is documentary evidence to that extent.
Unfortunately because of ignorance defence to that extent was not
taken in the trial Court. However, by virtue of Criminal Application
No.4376 of 2024, document to that extent is sought to be brought on
record by way of additional evidence. It is submitted that Section
391 of the Code of Criminal Procedure permits additional evidence
being adduced.
Criminal Application No.4376 of 2024 is allowed. After
allowing the application and noting the objection of the prosecution,
{21} CRI APPEAL NO. 232 OF 2004
such documents were taken on record and on going through the
same, it seems that appellant no.1 Sahebrao Umakant Waghmare was
at Nanded on 30-04-2000 since morning 07:00 a.m. i.e. on the date
of occurrence. Even PW2 Madhav, while under cross-examination
admitted and answered that appellant no.1 Sahebrao was at Nanded.
Therefore, it is doubtful whether he was present at the time of
incident, which took place after 06:30 a.m. on 30-04-2000. It is
settled law that defence is expected to merely probabilize its case and
need not to prove the defence with equal burden as lies on
prosecution and accused is merely expected to probabilize the
defence. Here appellant no.1 Sahebrao has gone beyond
probabilizing his defence by placing documents on record and
therefore, as regards to appellant no.1 Sahebrao is concerned, benefit
deserves to be extended.
CONCLUSION
21. Perused the judgment under challenge, more particularly, in
the light of above objections. It does appear that learned trial Judge
in paragraph 15 onwards dealt with evidence of PW8 and has noted
that Laxmibai is not examined and that testimony of PW15 is not in
consonance with evidence of PW8. However, merely out of multiple
witnesses, evidence of one witness i.e. PW8, if is not consistent with
{22} CRI APPEAL NO. 232 OF 2004
prosecution version, the other evidence cannot be doubted or gets
wiped out.
Learned trial Judge has correctly observed that initially
accused Vijaykumar came followed by other accused and they came
armed. Therefore, the incident was a planned and concerted.
Though charge was for Section 307 of the IPC, learned trial Court
accepted prosecution version as regards to offence under Section 324
of the IPC because essential ingredients for Section 307 of the IPC are
patently missing. On re-appreciation also this Court is of the
considered view that the view taken by the learned trial Judge of
scaling down the charge from Section 307 of the IPC to Section 324
of the IPC is the possible view which could emerge even after re-
appreciation. No case is made out on merits to disturb the findings.
Objections raised by appellant nos.2 and 3 in appeal do not warrant
merit. Accordingly, I proceed to pass following order :
ORDER
I) Criminal Appeal No.232 of 2004 is partly allowed.
II) The conviction awarded to appellant no.1 - Sahebrao
Umakant Waghmare in Sessions Case No.28 of 2002 by the
learned 2nd Adhoc Additional Sessions Judge, Nanded on
07-02-2004 for the offence punishable under Section 324 of the
Indian Penal Code, stands quashed and set aside.
{23} CRI APPEAL NO. 232 OF 2004
III) The appellant no.1 - Sahebrao Umakant Waghmare
stands acquitted of the offence punishable under Section 324 of
the Indian Penal Code.
IV) The fine amount deposited, if any, be refunded to
appellant no.1 after the statutory period.
V) Conviction and sentence awarded to appellant nos.(2)
Vijaykumar Ramrao Waghmare and (3) Jagjivan Ramrao
Waghmare is maintained and kept intact.
VI) Appeal against appellant no.4 Shilratan Ramrao
Waghmare stands abated.
VII) It is clarified that there is no change as regards the order
in respect of disposal of muddemal.
VIII) Criminal Application No.4376 of 2024 is disposed of.
( ABHAY S. WAGHWASE )
JUDGE
SPT
