Bombay High Court
Sadanand Yohan Avad And Other vs The State Of Maharashtra on 24 February, 2025
2025:BHC-AUG:5073
Cri.Appeal.800.2003
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 800 of 2003
WITH
CRIMINAL APPLICATION NO. 2610 OF 2024
1. Sadanand S/o. Yohan Avad,
Age : 57 years, Occu. : Labourer,
R/o. Dhakefal, Tq. Paithan,
Dist. Aurangabad.
2. Shamrao s/o Premchand Avad,
Age : 42 years, Occu. : Labourer,
R/o. Dhakefal, Taluka Paithan,
District Aurangabad.
3. Bhausaheb s/o Sadanand Avad,
Age : 32 years. Occupation: Agriculture,
R/o Dhakefal, Taluka Paithan,
District Aurangabad.
4. Chaburao s/o Yohan Avad,
Age : 78 years. Occupation : Agriculture,
R/o Dhakefal, Taluka Paithan,
District Aurangabad.
5. Nirmalabai w/o Dharmraj Avad,
Age : 32 years, Occupation: Labourer,
R/o Dhakefal, Taluka Paithan,
District Aurangabad.
6. Laxman Mohan Bhavar,
Age : 32 years. Occupation : Agri
R/o Newasa, Taluka Newasa,
District Ahmednagar ... Appellants.
Versus
The State of Maharashtra,
Through P.S.I., M.I.D.C.,
Police Station, Paithan,
Taluka Paithan,
District Aurangabad. ... Respondent.
Cri.Appeal.800.2003
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.....
Mr. N. K. Kakade, Advocate for Appellants.
Mr. S. S. Dande, APP for Respondent - State.
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 17th FEBRUARY, 2025
PRONOUNCED ON : 24th FEBRUARY, 2025
JUDGMENT :
1. Appellants herein have taken exception to judgment and
order dated 05.12.2003 passed by learned I st Ad-hoc Additional
Sessions Judge, Aurangabad in Sessions Case No.148 of 2002,
holding appellants guilty for offence punishable under sections 147,
304-A r/w 149, 325 r/w 149 and 323 r/w 149 of Indian Penal Code
(IPC) and sentenced them for imprisonment as well as fine.
FACTUAL MATRIX
2. Conspectus of prosecution case in brief is that, on
16.05.2001, daughter of informant had visited her father, requesting
to carry presents for her husband and her brother-in-law on account
of marriage of her brother-in-law. Accused Francis father-in-law of
Martina also reached there and started abusing, thereby questioning
why she came there. That time, another daughter of informant
namely Alpha, who was pregnant had also come there. Previously,
Alpha had lodged report against her husband and in-laws for
commission of offence under section 498-A IPC. In all 21 accused
came there and there was beating to both informant Peter as well as
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Alpha. They both were taken to Government hospital. On 17.05.2001,
informant Peter lodged report against accused resulting into
registration of crime bearing No. 51 of 2001.
3. On completion of investigation accused persons were
charge-sheeted and tried before learned Ad-hoc Additional Sessions
Judge, Aurangabad, who, on appreciating oral and documentary
evidence, held charges against present appellants proved, recording
guilt for above offences.
Feeling aggrieved by the above, instant appeal has been
preferred on various grounds mentioned in the appeal memo.
SUBMISSIONS
On behalf of Appellants :
4. Learned counsel for appellants criticized the judgment on
the ground that, there is improper appreciation. According to him,
21 persons were named, but their roles are not defined and only
accused nos.1, 2, 5, 15, 17 and 21 are picked up and chosen and held
guilty. Learned counsel took this court through the evidence of
informant, his daughter Alpha (PW4) and would submit that, their
testimonies are rendered doubtful in view of answers given by them
in cross examination. Learned counsel also took this court through
the medical evidence and pointed out that alleged occurrence is of
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16.05.2001, but doctor has not specifically attributed abortion due to
alleged beating on such date, rather he pointed out that abortion is of
29.05.2001 and as such there is no nexus with the occurrence and
charge under section 304-A IPC. He submitted that spot is not
proved. That, independent witnesses have exaggerated the version
and therefore, it is his submission that, learned trial court ought not
to have straightaway accepted prosecution version as proved.
5. In the alternative, it is his submission that, even
otherwise matter was between two families, who are related. That,
due to matrimonial disputes, relations were strained, but subsequent
to FIR, matter has been amicably settled between the parties. That,
informant as well as his daughter, who is said to be victim, who have
also deposed in the very examination-in-chief to that extent and so
learned counsel seeks matter to be compounded as now harmonious
relations between parties are said to be restored.
In support of such contentions, he seeks reliance on the
rulings of the Hon'ble Apex Court in the cases of Mahesh Chand and
Anr. v. State of Rajasthan, AIR 1988 SC 2111 and Jalaluddin v. State
of U.P. 2001 AIR SCW 2266.
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On behalf of Respondent - State :
6. Learned APP opposed on the ground that there is
convincing, trustworthy and reliable evidence of informant, who
himself was injured. That, there is corroboration from another victim
daughter (PW4). That, medical evidence supports ocular and injured
account. That, there is evidence of independent witnesses and
therefore, according to learned APP, there is no infirmity in the
findings and conclusion recorded by learned trial Judge. He
suggested that, matter being non compoundable, parties offerings in
appeal for compounding the offence, cannot be considered. Thus, on
both above counts, he has opposed.
EVIDENCE ON RECORD
7. On re-appreciating the entire evidence, it is emerging
that, prosecution case is rested on oral evidence of 11 witnesses.
Apparently, evidence of informant PW1, his daughter PW4 Alpha,
PW9 Anita and PW10 Mahesh are of relevance and significance on
the point of occurrence. Coupled with it evidence of medical experts
PW7 Dr. Chavan and PW8 Dr. Goyal is also relevant. Rest are the
panchas and Investigating Officer.
8. For proper appreciation and comprehension, it would
fruitful to reproduce the very testimonies of relevant witnesses i.e.
informant PW1, his daughter PW4 Alpha, PW7 Dr. Chavan, PW9
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Anita and PW10 Mahesh in verbatim as has been stated in witness
box in trial court.
9. PW1 Peter informant is the father of victim. Relevant
portion of his evidence at Exhibit 28 is as under:-
"I know all the twenty-one accused present before the
Court today. The incident occurred on 16.05.2001. On that day,
there was a marriage ceremony of the son of Francis Yohan
Avad, at Dhakefal. Said Francis is the father-in-law of my
daughter. The house of Francis is in front of my house and at
distance of about 50 feet. My daughter by name Martina is given
in marriage to Abasaheb, who is the son of Francis. My another
daughter by name Alpha is given in marriage to the cousin-
brother-in-law of Martina and Manesh is the name of her
husband. The marriage of Amar Francis Avad was to take place
on 18.5.2001. But, on 16.5.2001, there was marriage ceremony,
known as Haldi, at the house of Francis.
2. On 16.5.2001, my daughter Martina came to me and told
me that, as there is a marriage of her brother-in-law, I should
bring the presents to my son-in-law Abasaheb and his brother
Manesh, by way of new-clothes. I told Martina that, I did not
receive any invitation card, for the said marriage. therefore, I
will not give any such presents to her husband and his brother.
When this talk of myself and Martina was going on, her father-
in-law. i.e. Francis came to my house. He started abusing to me
why Martina had come to my house, when my daughter Alpha
had filed a case u/s. 498-A of the IPC against Sukhanand Yohan
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Avad and his son. Said Sukhanand is the real brother of Francis.
When this abusing and talk were going on, my another daughter
Alpha was also present, at that place, Alpha was carrying
pregnancy of 5 months, at that time. When this abusing was
going on, rest of the accused came to the spot and they attacked
on myself, my wife, my pregnant daughter Alpha and my son
Vicky Peter Ghule. Accused Francis, Chaburao, Vilasrao,
Shamrao, Sadanand have beaten me. Accused Shamrao,
Bhausaheb, Anton, Vimalbai, Shantabai, Sarubai & Nirmalabai
have beaten to my daughter Alpha. Because of this beating, I had
become unconscious. The people gathered there have separated
the quarrel. The guests, who had come to attend the ceremony,
had taken myself for treatment, to the government hospital at
Dhakefal. Alpha was taken to the same hospital, myself and
Alpha were referred to ghati hospital for further treatment.
Bleeding had started to Alpha. We both were discharged from
ghati hospital, on the next day. On 29.5.2001, Alpha was feeling
severe labour-pains, so, she was brought to ghati hospital,
Aurangabad. There was an abortion of Alpha in the ghati
hospital. This abortion has taken place, because of beating given
to her on the day of the incident.
3. After discharge, I had been to Paithan MIDC PS, on
17.5.01 and I lodged the complaint, it is the same now shown to
me, contents are true, it is marked at Exh.29. However, on my
complaint, the police have registered the offence, ten days
thereafter.
4. The case, instigated by my daughter Alpha, ended in
compromise. At present, Alpha is living with her husband and his
family. I had sustained the injuries on my chest and head, due to
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the beating. Alpha was admitted for 2 days, in the ghati hospital,
when her abortion took place.
10. PW4 Alpha is the victim. In her testimony at Exh.33 she
deposed as under :-
"My marriage with Manesh took place about 5 years
back. Two yrs. after marriage, I have filed a cri-case in the Court
at Paithan, u/s. 498-A of the IPC, against my husband, and five
others.
2. The incident has occurred 2 years back, from today. On
that day, there was a Haldi function, concerning the marriage of
my cousin brother-in-law and the function was held at the house
of in-laws, namely, Sukhanand Avad and Anusaya Avad. At that
time, I was carrying pregnancy of five months. On that day, at
about 12 noon or 1 pm, I was standing with my father-
complainant. The house of my father and that of my in-laws are
opposite to one another & there is a road between the two
houses. At that time, my sister Martina had come to us, to talk. At
that time, Madan Avad, Nirmalabai D. Avad Bhausaheb,
Nirmala Bhausaheb Avad, Anusayabai, Vimalbai Avad,
Shantabai Avad, Anton Avad, Baban Avad, Sarubai, Vilas Awad,
and one Bhawale, in all 21 persons had come to our house.
These persons had beaten to my father with fist and kick blows. I
was also beaten by them with fist and kick blows on my stomach.
My father had taken me to the govt hospital at Dhakefal. From
that hospital, in a govt. vehicle, I was being taken to ghati
hospital, A'bad. But, on the way, my abortion had taken place. I
was inpatient in ghati hospital, for 2 days. All the persons named
above are present today, in the Court hall."
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11. PW7 Dr. Chavan is the Medical Officer, who examined
PW1 informant and PW4 Alpha, narrated the injuries and identified
the injury certificates. In his testimony, he deposed as under :-
"On 16.5.01, I was on duty as a casualty medical officer at ghati
hospital, Aurangabad. On that day, the patient by name Alfa
Manesh Avad was referred to me from Dhakefal Rural Hospital
and I had examined her on that day. I noticed the following
injuries on her person:
1. contusion over abdomen, swelling over abdomen with
P.V. bleeding with linliacking membrane.
2. multiple contusion all over body, i.e. chest, abdomen,
back, and both the hands.
The injuries were caused within 12 hours by any hard and
blunt object. Injury No.1 was grievous whereas No.2 were simple
in nature. The patient had given the history of assault by many
persons on 16.5.01 at 12: 30 noon.
2. The same patient Alfa was admitted on 29.5.2001. The
patient had a history of P.V. bleeding.
The abortion had taken place, in fifth month pregnancy.
The abortion has taken place after trauma of 16.5.2001. The
patient was discharged on 30.5.2001. Dead male child was
removed after curating. I have brought today with me the
original MLC register and the entries of exam. of said patient on
16.5.01 and 29.5.01 are mentioned therein. Accordingly. I have
issued the two injury certificates, contents are true. I identify my
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signatures and are marked at Exhs. 38 and 39. The bleeding
noticed in the case of injured Alfa is possible, if she is given fist
and kick blows on her abdomen.
3. On 16.5.01, the patient by name Peter Paul Ghule was
referred to me by Dhakefal PHC, and I examined him on that
day. The patient had the following injuries:
1. contusions over the abdomen and backside, with
swelling over the abdomen, with severe pains, on abdomen
and chest.
2. looseness and fracture of left pre-mor tooth,
3. contusion over the chest with severe pains,
4. linear abrasion over right elbow joint.
Injuries were caused within 12 hours before examination. Injury
Nos.1, 3 and 4 were simple in nature, whereas No.2 was
grievous.
4. The patient Peter Ghule came to ghati hospital on
29.5.2001, as he was transferred by the Medical Officer,
Paithan. On that day, I examined him and he was having burning
pains in chest and tongueless sensation, having a drug-re-action,
and the patient was under treatment in medical ward, from 2 am
to 5 am on 29.5.2001. The entries of exam of the said patient
were also made in the MLC register. Accordingly, I have issued
the medical certificates of Peter, its contents are true and I
identify it. Certificates are marked at Exhs. 40 and 41."
12. PW9 Anita is the niece of informant Peter. In her
testimony at Exh.45, she deposed as under :-
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"The complainant Peter Paul is my maternal-uncle. On
8.5.2001, alongwith my children, I had come to Dhakefal, due to
summer vacation. PW.4 Alfa, on that day, was in the house of the
complainant. Alfa had lodged a complaint with the police at
Paithan against her husband and his family members, as she had
to face some family-difficulties, therefore, she was staying with
her father-complainant. I lived with the complainant, for 20-22
days, after 8.5.2001.
2. There was some function, at the house of Francis Avad, on
16.5.2001, as, on next day, the marriage of his son was to take
place. Martina is another daughter of the complainant. She was
passing from the house of the complainant, so, I had called her.
When I was talking with her, in front of the house of the
complainant, her father-in-law abused the complainant. The
complainant also came out of house and asked Francis, as to
why, he was abused and exchange of words started between the
two. On noticing that quarrel, all the guests, gathered for the
meals, rushed towards the house of complainant, There persons
were armed with weapons like bat and had beaten to the
complainant, so also to Alfa @ Archana, with bat, chappals, fist
and kick blows. Alfa was beaten on her stomach. Baban, Sham
and Sadanand Avad, Bhausaheb Avad, Laxman Bhawar, Manesh
Avad, Chaburao Avad, and others have beaten to the
complainant and Alfa. Both the complainant and Alfa were later
taken to the govn. hospital at Dhakefal, which is quite near the
house of the complainant. From there, they were referred to
ghati hospital. Bleeding to Alfa had started, because she was
beaten on waist and abdomen with kicks and chappals and fist-
blow and at that time, she was pregnant. All the persons, who are
named above, are present in the court hall, as accused."
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13. PW10 Manesh is the nephew of informant Peter. In his
testimony at Exh.46, he deposed as under :-
"The complainant Peter is my maternal uncle. On 12.5.2001, I
had come to village Dhakefal and was living there till
16.05.2001. On 16.5.2001 at about 12 noon, I was sitting on a
cot, under a nim-tree, in front of the house of the complainant.
Martina had come to see her father- complainant. She had just
reached near the door of house and was followed by her father-
in-law by name Francis. He questioned Martina, as to why she
was going to the house of the complainant, giving an abuse to the
complainant. Complainant was standing there and he asked
Francis, as to whom, he was abusing. Exchange of words started
between the two. I saw that, the complainant was being beaten by
Shamrao, Madan, Francis, Vilas and others. Archana @ Alfa
was pregnant and she was also beaten. The complainant and
Alfa both had fallen on the ground. I tried to intervene, but, was
unable to walk and was using crutches, at that time. The
complainant and Alfa were sent to hospital, at Dhakefal."
14. Examination-in-chief of PW1 informant and PW4
daughter Alpha are already reproduced in aforesaid paras. Now, let
us see whether there is force in the submission of learned counsel
that their substantive evidence is not consistent, general and
omnibus against all 21 accused persons and as such their testimonies
cannot be relied.
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15. On going through the cross examination of PW1
informant, it is noticed that, more particularly in paragraph no.7,
there are material omissions on the point of his daughter Martina
approaching him for new clothes for her husband and her brother-in-
law; about he conveying her about not receiving invitation about
marriage; about his wife and son also to be beaten by accused; not
specifically stating accused Francis, Chaburao, Vilasrao, Shamrao
and Sadanand beating him. He admitted about not specifically
naming Shamrao, Bhausaheb, Anton, Vimalbai, Shantabai, Sarubai
and Nirmalabai beating his daughter also. He also admitted about
informing at the time of complaint about any bleeding to his daughter
Alpha.
16. PW4 Alpha victim in paragraph no. 3 of cross
examination, stated that, in criminal case filed by her, later on there
was compromise. She answered that, she is unable to remember
name of accused and who beat her father. She was beaten by Nirmala,
Bhausaheb and Bhawale. According to her, incident lasted for one
and half hour. She answered that she does not remember whether
she stated to the police about her abortion taking place. She is unable
to assign why such material is not appearing in her statement.
17. In the cross examination of PW9 Anita, in paragraph
no.4, there are omissions about Alpha bleeding due to beating.
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18. In the cross of PW10 Manesh, he stated that, at the time
of incident, he was having fracture injury to his leg, but he had
accompanied complainant up to the hospital of Dhakephal. Rest is all
denial.
19. Conviction is recorded under sections 147, 304-A r/w
149, 325 r/w 149, 323 r/w 149 IPC.
Above sections are invoked by applying 149 IPC, and
therefore, it would be equally important to also deal as to when said
sections gravitates and it further said to be brought home.
20. Keeping above factors into, here, going by the chronology
of events as narrated by PW1 informant, it is emerging that, on
16.05.2001, his daughter Martina approached him to suggest that he
should bring new clothes for her husband as well as brother-in-law.
Martina is not examined here. Be it so. When father and daughter
Martina both were talking, it is alleged that, father-in-law Fancis
reached there, abused and he questioned his own daughter-in-law
Martina for visiting her parent's house, when PW4 Alpha had filed
proceedings under section 498-A IPC against Sukhanand (who is
brother of Francis) and his son. When abuses and talks were going
on, Alpha also came there and thereafter he has alleged that rest of
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the accused came on the spot and they attacked him, his wife and
pregnant daughter Alpha.
21. He initially named five persons, Fancis, Chaburao,
Vilasrao, Shamrao and Sadanand for beating him, but with what and
where, has not been specified by him. Then he again named Shamrao,
Bhausaheb, Anton, Vimalbai, Shantabai, Sarubai and Nirmalabai for
beating her daughter Alpha. Thus, in all 11 persons are specifically
named, but specific roles have not come in his evidence.
22. Another injured PW4 Alpha is also examined and
according to her, when her sister Martina had come to her father's
place and talks were going on, she claims that, Madan, Nirmalabai,
Anusayabai, Vimalbai, Shantabai, Anton, Baban, Sarubai, Vilas and
Bhawale came, beat her father with fist and kick blows and also beat
her with fist and kick blows on the stomach.
23. As stated above, PW1 Peter informant in his cross
examination, in paragraph no.7, has already admitted that, he did
not report in the complaint that his wife and sons were also beaten.
This thus amounts to improvement. He also specifically admitted
about not naming accused Fancis, Chaburao, Vilasrao, Shamrao,
Sadanand, Bhausaheb, Anton, Vimalbai, Shantabai, Sarubai and
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Nirmalabai for beating her daughter. He also admitted about not
reporting any bleeding due to beating.
24. Apparently, 21 persons were charge-sheeted, however,
learned trial Judge recorded conviction and held guilty only six
persons, i.e. Sadanand, Shamrao, Bhausaheb, Chaburao, Nirmalabai
and Laxman. Learned trial court seems to have taken into account
testimonies of informant PW1 and his daughter PW4. However, in
above cross names of some of the accused are admitted by informant
himself for not being named in the complaint. Therefore, the moot
question arises is on what basis out of 21, only 6 persons are held
guilty that too by applying section 149 IPC, when explicitly evidence
of informant and his daughter carries allegations in omnibus manner.
25. Here, conviction is recorded for section 304-A IPC, but
again it is noticed, more particularly from the evidence of PW7 Dr.
Chavan that, on 16.05.2001, he certified injuries to be simple in
nature except injury no.1 to PW4 and injury no.2 of PW1 to be
grievous and rest injuries is to be simple. Abortion of PW4 is shown to
be done on 29.05.2001 i.e. after two weeks. But, amongst 21 accused
only 06 are held guilty.
26. Apparently, conviction is recorded by trial Judge for
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commission of offence under section 304-A IPC, however, on perusal
of impugned judgment, it is noticed that, in paragraph no. 20 of the
judgment, the learned trial Judge has observed, the present accused
also possibly cannot have any intention to cause the abortion to
Alpha by their beating. Even the knowledge of their beating, with fist
and kick blows was likely to cause such abortion, amounting to
culpable homicide to foetus, cannot be attributed to the accused."
Having recorded such finding and opinion, when mens rea is
considered as an essential component for attracting section 304-A
IPC, the above findings do not reconcile with the opinion reached at
by learned trial Judge that offence of 304-A IPC is made out.
Requirement of mens rea to be essential, is dealt by the Hon'ble Apex
Court in the cases of State of Maharashtra v. Mayer Ham George; AIR
1965 SC 722; Nathulal v. State of M.P., AIR 1966 SC 43; Naresh
Kumar v. State of Haryana, 2024 (3) SCC 573; Jyotsna Sharma v.
State of Uttarakhand, MANU/UC/0084/2022; Lalit Mohan Bhagat v.
State of Uttarakhand, MANU/UC/0249/2022.
27. There is conviction for offence punishable under section
325 of IPC. PW7 Dr. Chavan, medical expert deposed that, PW4 Alpha
suffered one grievous injury i.e. P.V. bleeding. But, again, who
amongst the 21 or who amongst the 6 actually is responsible, is not
getting clear. Merely by invoking section 149 IPC, out of 21 only 06
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cannot be selected and held guilty unless it is shown that such 06
persons also carried same common object in committing the crime.
Going back to the chronology of events, incident seems to have
erupted suddenly i.e. only when Martina went to meet informant.
Arrival of Alpha was not expected. However, she too has come on the
scene. If section 149 IPC is to be invoked, then it is expected to be of
prosecution that all 21 accused were aware that incident of beating
taking place and they indulging in the same. The Hon'ble Apex Court
in numerous judgments has held that, to convict person under
section 149 of IPC, prosecution has at the threshold to establish
sharing of common object and then becoming part of unlawful
assembly. Each of the such person booked must be shown to be
aware that the offence is likely to be committed and further to
achieve the common object, they all became part of unlawful
assembly. To this extent, the Hon'ble Apex Court recently in the case
of Naresh v. State of Haryana, MANU/SC/1094/2023, clarified legal
position for invoking section 149 IPC. This crucial aspect is missing
in the case in hand and therefore, by applying above section, chosen
few cannot be held guilty.
28. Therefore, in the light of above discussion, even
commission of offence of two major sections 304-A and 325 are not
proved beyond reasonable doubt.
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29. Learned counsel has in alternative made submission that
now matter is resolved. Parties are relatives and harmony and peace
has been restored and they all unanimously on indulgence of other
relatives have decided to compound the allegations. Learned counsel
has placed on record above referred rulings, wherein Hon'ble Apex
Court has observed that, when matters are compromised and even
offences are non-compoundable, permission to compound can be
granted.
30. However, for above reasons, on meticulous re-
appreciation of evidence and for the reasons stated above, on merits
itself case of prosecution is shaky and charges not being proved
beyond reasonable doubt, benefits goes to appellants. Hence, I
proceed to pass the following order :-
ORDER
(I) Criminal Appeal stands allowed.
(II) The conviction awarded to appellants, namely, (1)
Sadanand S/o. Yohan Avad, (2) Shamrao s/o Premchand
Avad, (3) Bhausaheb s/o Sadanand Avad, (4) Chaburao s/o
Yohan Avad, (5) Nirmalabai w/o Dharmraj Avad, (6)
Laxman Mohan Bhavar in Sessions Case No.148 of 2002 by
the learned Ist Ad-hoc Additional Sessions Judge,
Aurangabad on 05.12.2003 for the offence punishable
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under sections 147, 304-A r/w 149, 325 r/w 149 and 323
r/w 149 of Indian Penal Code, stand quashed and set aside.
(III) The appellants stands acquitted of the offence punishable
under sections 147, 304-A r/w 149, 325 r/w 149 and 323
r/w 149 of Indian Penal Code.
(IV) The bail bonds of the appellants stand cancelled.
(V) The fine amount deposited, if any, be refunded to the
appellants after the statutory period.
VI) It is clarified that there is no change as regards the order in
respect of disposal of muddemal.
VII) Criminal Application No. 2610 Of 2024 is also disposed of.
(ABHAY S. WAGHWASE, J.)
Tandale
