Bombay High Court
The State Of Mah vs Gopala Baburao Walke And Ors on 30 January, 2025
2025:BHC-AUG:2775
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 745 OF 2005
The State of Maharashtra
Through P. S. Ambhora ... Appellant
-VERSUS-
1. Gopala Baburao Walke
Age 40 years Occu. Agri
2. Baba Baburao Walke
Age 50 Occu. Agri
3. Rama Baba Walke
Age 19 years Occul Agri
4. Radhabai Gopala Walke
Age 35 Occu. Household
5. Parubai Baba Walke
Age 45 Occu. Agricultural
All R/o Sayedmir Loni
Tq. Ashti, Dist. Beed ..Respondents
...
Mr. D.J. Patil, A.P.P. for appellant
Ms. Sayali S. Tekale, advocate for respondents.
...
CORAM : SANJAY A. DESHMUKH, J.
DATE OF RESERVING THE : 24.01.2025
JUDGMENT
DATE OF PRONOUNCING : 30.01.2025
JUDGMENT
JUDGMENT :
1. This appeal is preferred against the judgment and order
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delivered by Judicial Magistrate First Class, Ashti, Tahsil Ashti, District
Beed, in Regular Criminal Case No.80 of 2002, dated 13.06.2005. The
respondents/ accused were acquitted. It is an appeal against acquittal.
PROSECUTION'S CASE :
2. The informant Sudam Raktate (PW-1) was ploughing his
agricultural land situated at village Sayedmir Loni, Tahsil, Ashti, District
Beed on 27.03.2002, at about 12 noon. While ploughing, some thorny
bushes were likely to cause obstacles to the bullocks eyes, which were
existed on the common boundary (bandh) between his land and the
land of accused/respondents. To avoid the injuries to the bullocks of
the informant, he put some stones on those thorny bushes in order to
bend the same. At that time accused No.1 quarreled with the informant.
Other accused also came there with weapons i.e. axes, sticks and
stones. They all assaulted the informant and his father. At that time,
after listening the hue and cry of informant his parents and wife etc.
came there to rescue him. The accused also beat them by sticks, stones
and axes. The informant and his father was admitted in the hospital. A
report was lodged on the same day. Crime No.19/2002 was registered
in the Police Station, Ashti and the charge-sheet was filed.
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3. Charge was framed against the accused for the offence
punishable under Sections 323, 324, 504, 147, 148 read with Section
149 of the Indian Penal Code, 1860 (for short IPC) and Section 135 of
the Maharashtra Police Act, 1951. Accused denied the charge and they
were tried.
4. Prosecution examined the informant, Sudam Raktate (PW-1), his
injured father, Natha Raktate (PW-3), Dr. Balaji Gutte (PW-2) who
examined injured persons, panch witnesses Jalindar (PW-4) and
Sakharam Walke (PW-5). The prosecution also relied upon the report at
Exhibit-31, injury certificates of the informant and his father at
Exhibits-35 and 36, X-Ray plates at Exhibits-37 and 38 and the Spot
and seizure of sticks Panchanama at Exhibit-44.
5. Learned Trial Court held that prosecution failed to prove the
charges against the accused. The accused were acquitted by giving
them a benefit of doubt.
6. The grounds of objections of this appeal are that the learned Trial
Court failed to appreciate the evidence in its proper perspectives and
recorded incorrect findings by giving unacceptable reasons. The
evidence of experienced witnesses who were injured, though
corroborated, is not properly appreciated. It is lastly prayed to allow
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the appeal and sentence the accused.
7. Heard learned A.P.P. for the appellant-State and learned advocate
for the respondents. Perused the impugned judgment and the record
and proceedings.
FOLLOWING POINTS EMERGED FOR CONSIDERATION :
(i) Was it proved by the prosecution that accused in
furtherance of their common object of an unlawful
assembly, assaulted the informant and his father and
voluntarily caused hurt to them ?
(ii) Is the impugned judgment illegal, incorrect and requires
interference?
8. During the course of argument, learned A.P.P. for the appellant-
State pointed out the Injury Certificates and submitted that Injury
Certificates are materially corroborating to the incident of assault on
the informant and his father. The evidence of these two witnesses is not
shaken in the cross-examination. The evidence of Sudam (PW-1) and
his father Natha (PW-2) is very clear that while ploughing in the agri
land, accused No.1 took quarrel with them and assaulted on the left eye
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of Sudam (PW-1). Accused No.2 gave blow of an axe on his head. He
sustained bleeding injuries. At that time accused Nos.4 and 5 pelted
stones on them.
9. Learned A.P.P. for the appellant further submitted that the
evidence of injured witnesses is materially corroborated by the Medical
Officer/Doctor. The report is immediately lodged and three hours delay
cannot be a doubtful circumstance to acquit the accused. He submitted
that prosecution case against respondent Nos.1 and 2 is proved beyond
all reasonable doubts and therefore, this appeal be allowed by
awarding sentence.
10. Learned Advocate Ms. Sayali Tekale argued on behalf of the
respondents that the seizure of the axes and stones is not proved. There
is no independent evidence of any eye witness to corroborate the
testimonies of injured witnesses and the prosecution's case is
reasonably doubtful. There was earlier enmity between informant and
the respondents/accused and therefore, the respondents were falsely
implicated in the crime. The reasons and findings of the Trial Court are
legal and correct and there is no scope for interference. It is lastly
prayed to dismiss this appeal.
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11. Informant Sudam (PW-1) deposed mostly as per the prosecution
story that he was assaulted by respondent Nos.1 and 2 by the backside
of an axe and sticks. They also assaulted his father Natha (PW-3).
Informant, Sudam (PW-1) sustained injuries on his head, forehead and
near to right eye and other parts of the body. They both were admitted
in the hospital for 10 to 12 days. Natha (PW-3) deposed that he saw
that all the accused were beating his son. Accused No.2 - Baba Walke
and accused No.1 - Gopala Walke were armed with the axes. Other
accused male members were holding sticks in their hands and the
ladies were holding stones. He went to rescue his son. He was
assaulted by all the accused persons. He also sustained the injuries to
his forehead, chest, head and legs. He sustained injury from the
backside of an axe.
12. Dr. Balaji Gutte (PW-2) doctor further deposed that he examined
Sudam (PW-1) and found following injuries:-
1. C.L.W., right Parietal area of scalp, size 3 x ½ x ¼ c.m., age of injury
within 24 hours, caused by hard and blunt object. The nature of injury
openion was reserved. Now I received the X-rey plates from Civil Hospital
Ahemadnagar. No fracture is noticed. In my opinion the nature of injury
simple.
2. C.L.W., Occipital area of scalp, size 2 x ½ c.m. the age of injury within 24
hours, caused by hard and blunt object.
3. C.L.W., right maxilla i.e. below lower eye bid at lateral canthus of eye,
size, 2 x ½ с.м.
4. Contusion, left scapula area of chest, size 5 x ½ cm.
Injury no.2 to 4 are caused by hard and blunt object with age within 24
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hours. The opinion about nature was reserved. Now X-rey plates is received
from Civil Hospital Ahemadnagar. No fracture is noticed. In my opinion the
nature of injury are simple.
5. Contusion left leg lower end, size 1 ½ x ¼ c.m.
6. Abrasion, right Ala of nose, size 1 x ¼ c.m.
7. Contusion left buttock, size ¼ x ¼ cm.
Injury no.5 to 7 are caused by hard and blunt object, with age within 24
hours. The nature of above injuries are simple."
13. Dr. Balaji Gutte (PW-2) deposed that he found following seven
injuries on the person of Natha (PW-3) :-
1. C.L.W. forehead central part of size 4 x ½ x ¼ c.m. The age of
injury within 24 hours, caused by hard and blunt object, and nature
of injury simple.
2. C.L-W Lateral part of right eye brow, size of injury 1 ½ X ½ c.m.
age of injury within 24 hours and caused by hard and blunt object,
nature of injury was simple.
3. C.L.W. Occipital area of scalp, size of injury 5 x ¼ c.m. age of
injury within 24 hours with caused by hard and blunt object.
Opinion was reserved. Now I have received the X-rey plates from
Civil Hospital Ahemadnagar. The X-rey doesn't show any fracture. In
my opinion the nature of injury was simple.
4. Contusion, left scapular area of chest extending to infrascapularr,
size of injury 10 x 1/4th c.m. the age of injury within 24 hours.
Caused by hard and blunt object. The nature of injury was simple.
5. Contusion, right scapula area of chest, size 2 x 1/4 c.m., age of
injury within 24 hours, caused by hard and blunt object. The nature
of injury simple.
6. Contusion, left Palm of the base of 5th finger dorsel aspect, size ¼
x ¼ c.m., age of injury within 24 hours, caused by hard and blunt
object. The nature of injury simple.
7. Contusion, left shim dorsel aspect( Leg), size 2 x ½ c.m. age of
injury within 24 hours, caused by hard and flunt object, and the
nature of injury was simple"
14. Dr. Balaji Gutte (PW-2) lastly opined that the ages of injury is
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within 24 hours, caused by hard and blunt object, and the nature of
injuries were simple. He proved the Injury Certificates of these two
injured at Exhibit-35 and 36.
15. The Panch witness Jalindar Sangule (PW-4) did not support the
prosecution case on the point of seizure of weapons etc. Panch witness
Sakharam Walke (PW-5) deposed that he was called while drawing the
spot panchanama of the spot of incident and 2-3 sticks were seized
from that place of incident. He stated that the place of incident is near
to the vasti / Farm House of the informant. He proved spot
panchanama of place of incident at Exhibit-44.
16. The learned Trial Court held in paragraph No.9 of the impugned
judgment that the Police Station is 14 kilometer away from the spot of
incident. It was not difficult for the informant and the injured persons
to reach to the Police Station from the spot of incident for lodging of
the report, which was lodged at 3.15 p.m. There is delay of less than
three hours. However, causing of delay for lodging of the report itself is
not a reasonable doubt. No explanation is necessary for it. Such a delay
caused for lodging the report is not reasonably doubtful as held by the
Hon'ble Supreme Court in the case of Amar Singh Vs. Balwinder singh
and Ors. [MANU/SC/0065/2003].
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17. As far as occurrence of incident is concerned, two injured
witnesses have stated that they were assaulted by accused Nos.1 and 2
by giving blow of an axe. Though they stated that the other accused
pelted stones upon them, they have not deposed specifically which of
those accused pelted stones on their person. The stones are not seized.
Therefore, other accused are rightly held entitled for benefit of
reasonable doubt on the said ground.
18. The learned trial court considered the application given by the
injured informant to the police dated 6.4.2002 and the complaint filed
by him bearing R.C.C. No. 82 of 2002 in which some contradictions are
found. The word knife is used in the complaint. However, the injured
witnesses are rustic and the facts of the case are generally screened by
the advocate while drafting the complaint, which was filed in the court.
For the mistake of advocate, the evidence of injured witnesses cannot
be disbelieved. It is well settled that contradictions must be material
contradictions, which go to the root of the matter to disbelieve the
entire case of the prosecution. As far as the admissions are concerned,
the law in that respect is settled that the oral admissions are weaker
evidence. As per the provisions of section 31 of the Indian Evidence Act,
1872, an admission is not a conclusive proof. As per Section 58 of the
Indian Evidence Act, the fact admitted need not be proved. However,
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the proviso to Section 58 of the Evidence Act provides that court may in
its discretion expects/requires proof of the admitted fact independently.
Merely because, there are some admissions, those cannot be termed as
material admission contradictory to the prosecution case. The
exaggeration as to knife in R.C.C. No. 82 of 2002, is certainly not a
material contradiction. It does not wash out the evidence of injured
witnesses PW-1 and 3. The test of sufficiency of the evidence is
complied with from the evidence of PW-1 to 3.
19. That there is coherency in the evidence of injured Sudam (PW-
1), Natha (PW-3) and Dr. Balaji Gutte (PW-2). Their evidences are not
shaken in the cross-examination. Proving of spot of incident and seizure
of the weapon like axes etc. is not sine qua non when there is evidence
of injured witnesses, who have experienced the assault. Their evidence
is materially corroborated by the independent evidence of Doctor Balaji
(PW-2) and injury certificates at Exhibits 35 and 36. There is no
necessity of proving of X-rays drawn by particular expert when there is
direct evidence of injured witnesses. The Doctor's material evidence
was erroneously disbelieved by the learned Trial Court on the ground
that identification marks were not noted on the certificates, which is no
ground to disbelieve the evidence of the Dr. Balaji Gutte (PW-2).Though
the evidence of PW-4 and PW-5 is vague, the spot of incident is proved
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from the oral evidence of the informant, as he has deposed that
incident took place in the agricultural land where he was ploughing. It
is sufficient evidence. The proving of weapon i.e. sticks by pointing out
to the injured witnesses is mere irregularity and oral evidence of
injured informant (PW-1) and his father Natha (PW-3) is sufficient.
Here, the Trial Court has failed to apply the test of sufficiency of
evidence.
20. Sterling quality evidence is not possible and expected in such
cases. The parrot like statement and testimonies without any defect
also some times create reasonable doubt. Accurate evidence without
any mistake is not possible in each case. Accused is not entitled for the
benefit of suspicious circumstances but benefit of reasonable doubt. It is
well settled that accused are entitled for reasonable doubt and
reasonable doubt means that doubt which unearths the prosecution's
case. There is no reason for the informant (PW-1) and his father (PW-3)
to allege that the accused have assaulted and caused injuries to them. If
the earlier enmity was there, then it can be the motive and ground for
quarrel and assault as well as false implication. It is not the case of the
accused that they were not present there and they were elsewhere and
somebody else might have assaulted them and injuries sustained to the
informant and his father were not caused by them. Burden of proof lies
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on the prosecution to prove the charge against the accused. If the entire
evidence and matter before this Court is considered together, this Court
is of the view that the evidence of informant (PW-1) and his father
Natha (PW-3) as well as expert Dr. Balaji Gutte, is not shaken in the
cross-examination to disbelieve them.
21. By the evidence of these three witnesses the guilt of the
accused/respondent Nos.1 and 2 is proved beyond all reasonable
doubts. On re-appreciation of entire evidence, this court found that the
prosecution had succeeded in proving its case beyond all reasonable
doubt. The onus lies upon accused Nos.1 and 2 to disprove evidence of
those three witnesses. They have failed to do so. Prosecution has
rebutted the presumption of innocence of the respondent No.1 and 2 by
cogent and acceptable evidence. The ingredients of Section 323 of IPC
i.e. voluntarily causing hurt are proved beyond all reasonable doubts.
The criminal liability of respondent/accused Nos.1 and 2 is proved.
22. For the reasons discussed above, the argument of learned
Advocate for respondents / accused is not acceptable. The reasons and
findings of the learned Trial Court are partly not legal and correct. It
requires interference. Hence point Nos.(i) and (ii) are answered partly
in the affirmative in respect of respondent Nos.1 and 2. The appeal
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deserves to be partly allowed against respondent Nos.1 and 2. However,
the appeal is liable to be dismissed in respect of respondent Nos.3 to 5.
23. Respondent Nos.1 and 2 are held liable under Section 323 of the
IPC. They need to be heard on the point of quantum of sentence.
24. Heard accused/respondent Nos. 1 and 2 on the point of sentence.
They submitted to take a lenient view. Learned Advocate for the
respondents/accused Nos.1 and 2 submits to release them on the bond
of good behaviour as per the provisions of Section 4 of the Probation of
Offenders Act, 1958 as they have no criminal antecedents.
25. Learned A.P.P. appearing for the State strongly opposed the
arguments of learned Advocate for the respondents and submitted that
the victims of the crime i.e. informant and his father were admitted in
the hospital for 10-12 days who suffered a lot. He, therefore, submitted
to award the sentence of one year along with fine and compensation to
the injured informant and his father.
26. The respondents/accused nos. 1 and 2 have no criminal
antecedents. Considering the peculiar set of facts of the case as well as
fact that ages of respondent Nos.1 and 2 are 56 and 68 respectively and
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also considering the fact that incident of assault had taken place in the
year 2002, it would be appropriate to exercise the discretion under
Section 4 of the Probation of Offenders Act, 1958 and to release
respondent Nos.1 and 2 on entering into bond of good behaviour for
one year with sureties for probation of good conduct. The informant
(PW-1) and his father (PW-3) were treated for about 10 days in the
hospital. They must have incurred some amount for it. They have
certainly suffered by mental agony and pain. Therefore, they are
certainly entitled for compensation as per Section 5 of the Probation of
Offenders Act, 1958. It would be appropriate to direct respondent
Nos.1 and 2 to pay compensation of Rs.10,000/- each to the informant
(PW-1) and Natha (PW-3) i.e. total amount of Rs.40,000/- as
compensation in addition to execution of bond of good behaviour for
one year. This sentence would certainly meet the ends of justice and
justice to the victims of the crime. Hence, the following order :-
ORDER
I. The appeal is partly allowed.
II. The impugned judgment is partly set aside and appeal against
respondent Nos.1 and 2 is allowed. However, the appeal against
respondent Nos. 3 to 5 is dismissed.
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III. Respondent Nos.1 and 2 are held liable for the offence
punishable under Section 323 of the IPC. They be released on condition
to execute bond of good behaviour for one year with surety of
Rs.10,000/- each for one year on or before 15.02.2025 before Judicial
Magistrate First Class, Ashti, District Beed. If they fail to maintain good
behaviour, the learned Judicial Magistrate shall proceed against them
as per the provisions of law and award appropriate sentence to them as
provided under Section 323 of the IPC without reference to this Court.
IV. Respondent Nos.1 and 2 are also directed to pay compensation
under Section 5 of the Probation of Offenders Act, 1958, of Rs.10,000/-
each to the informant Sudam Natha Raktate (PW-1) and his father
Natha Balaji Raktate (PW-3) i.e. Rs.20,000/- to each i.e. total amount
of Rs. 40,000/- as compensation, under Section 5 of the Probation of
Offenders Act, 1998 in default to suffer simple imprisonment for one
month each. The said amount be deposited in the Court of learned
Judicial Magistrate First Class, Ashti, District Beed, within two months
from today. If the said amount is not deposited within two months from
today, respondent Nos.1 and 2 have to pay interest @ 9% p.a. on it, till
its realization. However, if the said amount is not deposited within two
months from today, the learned Judicial Magistrate First Class, Ashti,
District Beed shall proceed against respondent Nos.1 and 2 to recover
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that amount as per the provisions of law without reference to this Court
and also proceed further against respondent Nos.1 and 2 and execute
the sentence in default, as directed above.
V. After deposit of the amount of Rs.40,000/-, the learned Judicial
Magistrate First Class, Ashti, District Beed is directed to inform to the
PW-1 and PW-3 about deposit of the amount of Rs.40,000/- and if they
pray, the said amount of Rs.20,000/- each be paid to the informant
Sudam Raktate (PW-1) and his father Natha Raktate (PW-3) along with
interest, if any, accrued on it. If they refuses to withdraw it within
three months after intimation about deposit of the amount, that
amount be transferred to Ehsaas Matimand Mulanche Balgruh CBCMT.
The bank account details of the same are as under :-
Name : Siddharth Samajik Vikas Sanstha.
A/c. No. : 130820110000494 - (Current Account)
Bank : Bank of India.
Branch : Powai Naka, Satara.
IFSC : BKID0001308.
VI. The respondents/accused Nos.1 and 2 are informed that they
may proceed against this judgment in the Honourable Supreme Court.
If they want to proceed in the Honourable Supreme Court, they have to
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furnish surety to the satisfaction of the learned Judicial Magistrate First
Class, Ashti, District Beed on or before 15.02.2025.
VII. The Judicial Magistrate First Class, Ashti, Tahsil Ashti, District
Beed is directed to provide a copy of this judgment to both the accused
while they submit bonds of good behaviour and sureties.
VIII. The record and proceedings be sent back to Trial Court alongwith
copy of this judgment.
IX. Rest of the impugned judgment is maintained.
[SANJAY A. DESHMUKH]
JUDGE
A.G.Narwade
