Bombay High Court

Pandurang Kishan Ghogre And Anr vs State Of Mah on 24 September, 2024

2024:BHC-AUG:22446


                                                                     CriAppeal-607-2005
                                                  -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 607 OF 2005

                 1]    Pandurang s/o Kishan Ghogre,
                       Age : 43 years, Occu.: Agriculture,
                       R/o : Village Therban, Taluka : Bhokar,
                       District : Nanded.

                 2]    Balaji s/o Kashinath Ghogre,
                       Age : 22 years, Occu.: Agriculture,
                       R/o : Village Therban, Taluka : Bhokar,
                       District Nanded.                            ... Appellants
                                                       [Orig. Accused Nos. 1 & 2]

                             versus


                       The State of Maharashtra,
                       through Police Station, Bhokar,
                       Taluka : Bhokar, District : Nanded.        ... Respondent

                                                  .....
                 Mr. Vishal A. Chavan h/f Mr. Devang R. Deshmukh, Advocate for the
                 Appellants.
                 Mr. S. K. Shirse, APP for Respondent-State.
                                                  .....


                                         CORAM :        ABHAY S. WAGHWASE, J.
                                         Reserved on         : 10.09.2024
                                         Pronounced on       : 24.09.2024

                 JUDGMENT :

1. In this appeal, there is challenge to the judgment and order

passed by the Adhoc Additional Sessions Judge, Nanded dated

16.08.2005 in Sessions Case No. 157 of 2002, thereby recording guilt CriAppeal-607-2005

of the appellants for commission of offence under Section 326 r/w 34

of the Indian Penal Code [IPC].

PROSECUTION VERSION IN TRIAL COURT

2. On 25.06.2000, procession of Lord Bhimdeo by Nayakde

community was passing over the house of informant Ganpat (PW4).

Suddenly, participants of the procession started pelting stones which

hit the wife of informant. Informant came out and questioned for

pelting stones, upon which, accused namely, Chander, Pandurang,

Parmeshwar, Kashinath, Balaji and Shivaji again pelted stones

towards house of complainant. A stone pelted by accused Pandurang

hit on the person of informant and a stone pelted by accused

Kashinath hit informant on his back. Thereafter, accused Chander

assaulted informant with axe also, causing him bleeding injury.

Informant and his wife were taken to hospital. On oral report of

informant, crime bearing no. 81 of 2000 was registered for offence

under Sections 147, 148, 336 r/w 149 of IPC and under Section 135

of the Bombay Police Act.

3. Investigation was entrusted to PW16 PI Angule and on its

completion and on gathering sufficient evidence, accused persons CriAppeal-607-2005

were duly chargesheeted before learned Adhoc Additional Sessions

Judge, Nanded, who conducted trial vide Sessions Case No. 157 of

2002. After appreciating evidence of in all 17 witnesses as well as

documentary evidence, learned trial Judge held present appellants,

i.e. original accused no. 1 Pandurang and original accused no.2 Balaji,

guilty of charge under Section 326 r/w 34 of IPC, whereas accused

nos. 3 to 6 were acquitted from all charges. Such judgment rendered

by learned Adhoc Additional Sessions Judge, Nanded dated

16.08.2005 is the subject matter of challenge before this Court.

SUBMISSIONS

On behalf of the Appellants :

4. Sum and substance of the argument of learned counsel for the

appellants is that there is false implication due to political rivalry.

That, eye witnesses are not consistent. Evidence of informant and his

wife is full of material omissions. Recovery is doubtful. There are

allegations of pelting stones. Roles are not clearly defined and

therefore, according to learned counsel, learned trial Judge ought not

to have accepted the prosecution version. That, panchas to recovery

have not supported. There is delay in lodging report. Statements are

also recorded at a belated stage, giving scope for false implication.

There is delayed and unexplained seizure. Consequently, learned trial CriAppeal-607-2005

court has not properly appreciated the evidence and so, learned

counsel prays to allow the appeal by setting aside the impugned

judgment.

On behalf of the Respondent-State :

5. On the contrary, learned APP, while supporting the judgment,

submitted that the incident had taken place in the afternoon during

broad daylight. Informant and his wife, who are injured, have

specifically named who assaulted with what. Immediately, injured

were taken to hospital and there, report was lodged. There are other

independent witnesses who have witnesses the incident. Injuries are

established through medical experts. There is recovery. Blood stained

clothes are also seized. That, informant, his wife and the witnesses

who took them to hospital and were present around the spot, have

also named appellants and also clearly defined their roles. Therefore,

their version was worthy of credence and hence it has been correctly

appreciated and accepted and judgment of conviction has been

rendered. According to learned APP, there is no need to interfere as

no case for interference is made out.

CriAppeal-607-2005

EVIDENCE BEFORE THE TRIAL COURT

6. For proper comprehension, the 17 witnesses examined by

prosecution in support of its case, can be categorized as under:

Panchas to spot panchanama, seizure of clothes etc.

PW1 Gangadhar acted as pancha to spot panchanama Exhibit 35.

PW2 Pandurang is the first pancha to seizure of clothes of informant.

He did not support prosecution.

PW3 Baswanta is the second pancha to seizure of clothes of informant. He identified the panchanama Exhibit 37 as well as the seized article banian.

PW10 Balasaheb is pancha to seizure of clothes vide seizure panchanama Exhibit 52.

Informant and injured witnesses

PW4 Informant Ganpat is the injured, who lodged report Exhibit 40.

He identified the report as well as article 'A' i.e. his own banian.

PW5 Ratnamalabai is wife of informant (PW4). She is also injured.

PW6 Chandrabai is another injured.

CriAppeal-607-2005

PW7 Vithal is nephew of informant. He is also an injured.

PW8 Sahebrao is a victim and an injured.

PW9 Govind is also an injured eye witness.

PW11 Jagan is injured and a victim.

PW14 Dnyaneshwar is injured victim.

Eye witness

PW13 Sunil is the nephew of PW11 Jagan. He is an eye witness.

Medical Experts

PW12 Dr. Jadhav, medical practitioner, who examined injured Jagan (PW11) and issued discharge summary.

PW15 Mohd. Amjadulla is the medical officer who examined Chandrabai (PW6) and Ratnamalabai (PW5) and issued injury certificates Exhibits 61 and 61.

PW17 Lalita Swami is another medical officer who examined Jagan (PW11) at Bhokar and referred him to Nanded. She also examined injured Dnyaneshwar, Govind, Vithal, Shankar, Ganpat and Digambar and issued injury certificates Exhibits 76 to 82 respectively.

CriAppeal-607-2005

Investigating machinery

PW16 P.I. Angule is the Investigating Officer.

7. On carefully appreciating the evidence of informant and injured

named above, the incident seems to have taken place on 25.06.2000,

i.e. when the procession belonging to Nayakde community was going

on in the village.

8. PW4 informant Ganpat stated that initially he heard about the

assault on Jagan and therefore he went to his house and he claims to

have seen accused Kashinath, Balaji and Pandurang were assaulting

Jagan and seeing him coming, those persons fled. Jagan had suffered

head injury and had become unconscious. He stated that when he

came home, at that time 7 to 8 persons out of the procession started

pelting stones towards his house. One stone hit his wife on the hand

and when he went out of the house to inquire, accused Kashinath,

Pandurang, Balaji, Parmeshwar, Shivaji, Raghunath and Kondiba

started assaulting him. He has alleged that Kashinath assaulted him

with axe on head, whereas accused Raghunath pelted stone and

accused Shivaji, Balaji, Kondiba and others assaulted by means of

sticks, and he received bleeding injury.

CriAppeal-607-2005

In cross para 4 of this witness omissions are brought about

assault on Jagan and he saw Pandurang assaulting Jagan and fleeing

from the spot; that, he saw Jagan had suffered head injury and had

become unconscious and therefore, out of fright, he came home; that,

accused Kashinath assaulted him by means of blow of axe; that, he

was assaulted by Balaji, Shivaji and Kondiba by means of sticks.

9. PW5 Ratnamalabai, i.e. wife of PW4, stated that when

procession was going on, she was watching it. At that time, accused

Pandurang, Balaji, Kondiba, Shivaji and others pelted stones which hit

her on the left hand wrist. When her husband inquired, at that time,

accused Balaji, Pandurang, Shivaji and Raghunath assaulted her

husband. Raghunath assaulted by means of stick, Kashinath gave

blow with axe on her husband's head. Dnyaneshwar and Vitthal

intervened.

In her cross, omissions are only brought about her husband

inquiring accused why they pelted stones; that, accused Raghunath

was having stick; and that, accused Pandurang, Balaji and Raghunath

pelted stones on her left hand wrist.

CriAppeal-607-2005

10. PW6 Chandrabai stated that deceased Kashinath, Pandurang

and Balaji pelted stones. She received bleeding injury on her cheek

and her son received injury on his forehead and mouth. In cross,

omission is brought about Kashinath, Pandurang and Balaji pelting

stones on her son and she and her son both suffered injuries.

11. PW7 Vithal, nephew of PW4, stated that he went to the house

of his uncle. Procession was going on. Accused Pandurang pelted

stone which hit his aunt on the left wrist. When his uncle came out

and inquired, Kashinath gave blow with axe on the head of his uncle,

whereas rest of the accused i.e. Balaji, Parmeshwar, Shivaji,

Pandurang gave blow of stick. His uncle suffered head injury. He also

received head injury.

In Para 3 of his cross, omissions are brought about witnessing

Pandurang pelting stones on the hand of his aunt and ; accused

having sticks in their hands.

12. PW8 Sahebrao stated that accused Balaji, Pandurang,

Kashinath, Shivaji, Raghunath and Parmeshwar had assaulted Jagan

by stones. He had witnessed the incident from a distance of about 200

feet. When he returned home, accused persons pelted stones on his CriAppeal-607-2005

house. He named only Balaji for giving blow of stick on his right

shoulder. Accused also assaulted Ganpat by axe, but he is unable to

state which of the accused assaulted by axe.

In cross para 2, omissions are brought that accused person had

assaulted Jagan. He answered that there were about 50 to 100

persons who had participated in the procession.

13. PW9 Govind deposed that Kashinath, Pandurang, Shivaji,

Balaji, Parmeshwar, Raghunath assaulted Jagan. Accused persons

came towards him in front of G.P. office. Accused Kashinath had axe

in hand, whereas Pandurang and Balaji had stones and they beat him

continuously. Pandurang, Balaji, Parmeshwar, Shivaji and Kondiba

pelted stones on the house. A brick pelted by Balaji hit him on the

lips, whereas stone pelted by Raghunath hit him on the back.

In para 2 of his cross, following omissions are brought :

Hearing shouts of quarrel, he came out of house and saw

accused assaulting Jagan; while going towards Bhokar, he saw

accused persons assaulting Ganpat, Shankar and Dnyaneshwar by axe

and sticks.

CriAppeal-607-2005

14. PW11 Jagan stated that he was sitting with his family at around

1.00 to 1.30 p.m. At that time, Pandurang came with stick and gave

blow questioning why he took Sarpanch to Bhokar on two-wheeler.

He suffered bleeding injury to the head and also injuries to neck and

other parts of the body. While his family was separating him, accused

Balaji came and hit him with stone. Kashinath also came and declared

not to leave him alive and gave him stick blow, as a result of which,

he became unconscious and was hospitalized and treated.

In cross, he admitted that he did not file report of the incident

after he regained consciousness. Rest is all denial.

15. PW13 Sunil, who is nephew of PW11 Jagan, also stated that his

uncle was assaulted by Balaji, Pandurang and Kashinath with stone

and sticks. In cross, omissions are brought that, due to pelting of

stone by Balaji, which was hit on the head of his uncle and he

received bleeding injury and accused Pandurang gave blow of stick on

his uncle's shoulder.

16. PW14 Dnyaneshwar has deposed that while he was going by

the side of procession, accused Pandurang, Balaji and Kondiba

assaulted him by fist and kicks, and also pelted stones. The stone CriAppeal-607-2005

pelted by accused Pandurang Ghogre hit above his eyebrow. He

further deposed that he came to know that Kashinath had assaulted

Ganpat by axe. He again corrected himself and said that in his

presence Kashinath assaulted Ganpat.

17. PW12 Dr. Jadhav had examined Jagan and he identified his

discharge summary. The said discharge summary Exhibit 56 shows

that Jagan was diagnosed of head injury with left temporal depressed

fracture skull with underlying contusion. According to the Doctor,

head injury was grievous in nature and had the patient not been

treated in time, injury was sufficient to cause death in ordinary course

of nature.

18. PW15 Medical Officer Mohd. Amjadulla, who examined

Chandrabai and Ratnamalabai, noticed contusion on back and

abrasion on right hand of Chandrabai; contusion and abrasion over

left wrist joint of Ratnamalabai. All injuries were simple in nature. He

identified certificates Exhibits 61 and 62.

19. PW17 Medical Officer Lalita Swami Examined Jagan,

Dnyaneshwar, Govind, Vithal, Shankar, Ganpat and Digambar. She

deposed about noticing contusion as well as CLW on left temporal CriAppeal-607-2005

region of Jagan and both injuries, according to her, were grievous in

nature. Dnyaneshwar had CLW on right eye which was simple injury.

Govind had one simple injury i.e. contusion on right eye, and two

grievous injuries, i.e. cut injury on upper lit and dissected teeth.

Vithal and Shankar had CLW on left temporal, CLW on forehead and

contusion on right temporal, respectively, and all injuries, according

to her, were simple in nature. Ganpat was found to have suffered one

CLW on left pareital region which was grievous, and one contusion on

occipital region which was simple injury. Digambar was also found to

have suffered one simple CLW injury on right mid leg and one

grievous injury i.e. dissected teeth. This medical expert has also

deposed that injury suffered by Jagan was danger to life and if not

treated in time, it was sufficient to cause death of Jagan.

20. Therefore, here, there is not only eye witness account, but

injured witness account, and three medical experts who examined

them, have also stepped into the witness box. It is fairly settled that

injured witness account always stands on a higher pedestal, as held in

Balu Sudam Khalde and another v. The State of Maharashtra 2023

LiveLaw (SC) 279. As regards accused nos. 1 and 2, i.e. Pandurang

and Balaji, it is noticed that all witnesses are consistent about they

holding stick and stone. What triggered the incident has not come on CriAppeal-607-2005

record, but it seems to be a fallout of some religious procession which

was going on. As regards the remaining accused are concerned,

injured witnesses are not consistent and even their evidence is found

to be carrying material omissions. Therefore, taking into

consideration the evidence against accused Pandurang and Balaji,

nature of articles held by them, the injured witness account, more

particularly of PW4 Ganpat, PW9 Govind and PW11 Jagan, there is

convincing evidence regarding their participation and role. They were

in each other's company. Therefore, taking into account the number

of injured persons and their testimonies, there is sufficient material

regarding these two accused. In occurrence of such nature, wherein

several persons are involved and several injured are involved, there

are bound to be variances. However, when more than one witnesses

are found to be consistent, their testimonies can be relied.

21. Perused the judgment under challenge. Learned trial court has

elaborately discussed the substantive evidence as well as the answers

given by the witnesses in cross. There is proper appreciation and only

accused, against whom there is convincing evidence, are held guilty.

Therefore, no fault can be found in the manner of appreciation or

findings recorded by learned trial Judge. There is no infirmity or

irregularity so as to interfere. However, learned trial Judge has CriAppeal-607-2005

sentenced accused-appellants to suffer four year's imprisonment. Said

judgment is of 2005, i.e. almost two decades back. Therefore,

considering such lapse of time and the fear of conviction and sentence

looming over their head and considering the submissions to consider

modification of sentence, same is required to be modified. Hence, the

following order is passed :

ORDER

I. The appeal is partly allowed.

II. Conviction awarded to the appellants, i.e. appellant no.1 Pandurang s/o Kishan Ghogre and appellant no. 2 Balaji s/o Kashinath Ghogre, by the Adhoc Additional Sessions Judge, Nanded in Sessions Case No. 157 of 2002 for offence punishable under Section 326 r/w 34 of IPC on 16.08.2005, is hereby maintained, however, the sentence is modified and reduced and instead of rigorous imprisonment for four years, they are sentenced to suffer rigorous imprisonment for a period of one (01) year. There is no change in fine amount as well as in-default sentence.