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2014 DIGILAW 2370 (BOM)

Laxman Kalu Bachhav v. State of Maharashtra

2014-12-01

G.S.KULKARNI, P.V.HARDAS

body2014
JUDGMENT : P. V. HARDAS, J. ;- The Appellants who stand convicted as follows :- Accused Nos. 1,3,4,5 and 6 for offence punishable under Section 147 and 148 of the Indian Penal Code and sentenced to R.I. for three months and to pay fine of Rs.500/- in default of which to undergo further R.I for 15 days and R.I. for six months and to pay fine of Rs.500/- in default of which to undergo further R.I. for 15 days respectively with a direction that the substantive sentences shall run concurrently. Accused No.2 Chhababai stands convicted for offence punishable under Section 147 and 148 of the Indian Penal Code and sentenced to imprisonment till rising of the Court and to pay fine of Rs.500/- in default of which to undergo further R.I. for 15 days and imprisonment till rising of the Court and to pay fine of Rs.500/- in default of which to undergo further R.I. for 15 days. Accused No.4 Pandharinath, Accused No.5 Khushal stand convicted for offence punishable under Section ,302 of the Indian Penal Code and sentenced to imprisonment for life and each accused to pay fine of Rs.1 ,000/- in default of which to undergo further R.I. for three months, by the IInd Additional Sessions Judge, Nasik, by Judgment dated 6.7.1995, in Sessions Case No.38 of 1994, by this Appeal question the correctness of their conviction and sentence. 2. Facts as are necessary for the decision of this Appeal may briefly be stated thus. PW-Il PSI Namdeo Thomare, who on 24.5.1993 was attached to the Kalwan Police Station recorded the report ofPW-3 Bababai at Exhibit 3. On the basis of the said report he registered an offence vide Crime No.48 of 1993 against the present Appellants. He took over the investigation of the said Crime himself. He visited the scene of the incident that is village Yisapur and drew the scene of the incident panchnama on 25.5.1993, in the presence of panch witnesses at Exhibit 30. From the scene of the incident he seized three stones, sample of ordinary mud and, blood mixed mud. He recorded the statements of witnesses. He referred the injured to the Medical Officer of the Cottage Hospital, Kalwan under a requisition. On 25.5.1993, injured Yeshwant Yithal More succumbed to his injuries in the Nagji Hospital. An inquest panch nama was drawn which was rcceived by PW-II PSI Thomare. He recorded the statements of witnesses. He referred the injured to the Medical Officer of the Cottage Hospital, Kalwan under a requisition. On 25.5.1993, injured Yeshwant Yithal More succumbed to his injuries in the Nagji Hospital. An inquest panch nama was drawn which was rcceived by PW-II PSI Thomare. Section 302 of the Indian Penal Code came to be added and a report thereof was sent to the concerned Magistrate. Some of the accused were arrested on 1.6.1993 and Accused No.2 was arrested on 2.6.1993. Accused Nos.3 and 4 were arrested on 3.6.1993 while Accused Nos.5 and 6 were arrested on 10.6.1993. During custodial interrogation, Accused Pandharinath expressed his willingness to point out the place where a stick had been concealed. Accordingly, a memorandum was drawn in the presence of panch as at Exhibit 47 and the accused then led the Police and the Panch to village Visapur and from one dilapidated house produced a bamboo stick which was seized under panchnama at Exhibit 43. On 12.6.1993, Accused Khushal, during custodial interrogation, expressed his willingness to produce a stick. Accordingly, a memorandum was scribed in the presence of panchas at Exhibit 48. Accused Khushal then led the Police and the Panch to Visapur and produced one stick from the rear side wall of the Government Godown. The said stick was seized under seizure memorandum at Exhibit 49. The seized articles were then referred to the Chemical Analyzer, Aurangabad under requisition at Exhibit 54. The report of the Chemical Analyzer is at Exhibit 26. Further to the completion of investigation, a charge-sheet against the Appellants was submitted. 3. Postmortem on the dead body of deceased Yeshwant was performed by PWI Dr. Sudhakar Vyavahare, who noticed the following external injuries :- (1) Stitched wound on right parietal region of scalp 2 cm. in length, bogginess in right fronto temporo region. (2) Contusion on left thigh above knee joint over medical aspect 8 cm x 5 cm. (3) Abrasion on lower 1/3 of left leg lateral aspect 1.5 cm. superficial. (4) Stitched wound over the neck in the mid line vertical 2.5 cm. in length. He opined that the injuries were antemortem in nature. On internal examination he noticed the following injuries : (1) Stitched wound on right parietal region of the scalp 2 cm. in length. (2) Haemotoma under scalp over fronto temporal region right side 4 x 4 cm. in length. He opined that the injuries were antemortem in nature. On internal examination he noticed the following injuries : (1) Stitched wound on right parietal region of the scalp 2 cm. in length. (2) Haemotoma under scalp over fronto temporal region right side 4 x 4 cm. The internal injuries corresponded to the external injury no. 1 mentioned in column no.17. He noticed that the brain matter was congested and showed hemorrhage over left fronto parietal region. He also noticed the left frontal temporal to be contused. Brain stem was oedematous. He therefore opined that the deceased had died due to shock due to head injury (cerebral contusion and fracture of skull bone). The postmortem report is at Exhibit 28. 4. On the case being committed to the Court of Sessions. Trial Court vide Exhibit 11 framed charge against .the .Appellants! Accused Nos.! to 6 for offence punishable under Section 147, 118,452 r/w. 149,302 r/w. 149 and 504 r/w. 149 and 506 r/w. 149 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution principally relied upon the eye witness account of PW-3 Bababai, PW-4 Dashrath, PW-5 Ratnabai, PW-6 Baliram and PW-7 Khandu. In order to effectively deal with the submissions advanced before us by the learned Counsel for the Appellants, it would be useful to refer to the evidence of the prosecution witnesses. 5. PW-3 Bababai an eye witness and a first informant deposes that on 24.5.1993 they were constructing the house on the farm. At about 5.00 p.m. they returned to the house at Visapur. Chhababai, sister of PW-3 Bababai, Vishwanath, Khusal, Bhausaheb and Laxman came to Visapur in a bullock cart. They (accused) came in front of the house and started assaulting deceased Yeshwant. They assaulted Yeshwant by pelting stones and by hitting with sticks. All the accused were armed with sticks and Yeshwant was dragged out from the house and was assaulted by the accused with sticks. Yeshwant received bleeding injury on his head due to assault. Due to assault Yeshwant fell on the ground in front of the house and was rendered unconscious. According to PW-3 Bababai, she, Dashrath and Ratnabai picked up injured Yeshwant and brought him inside the house. They tried to give him water but he did not drink water. Yeshwant was taken in a bullock cart to Dr. Due to assault Yeshwant fell on the ground in front of the house and was rendered unconscious. According to PW-3 Bababai, she, Dashrath and Ratnabai picked up injured Yeshwant and brought him inside the house. They tried to give him water but he did not drink water. Yeshwant was taken in a bullock cart to Dr. Mutadak where initial treatment was given to him. Dr. Mutadak then advised that Yeshwant be taken to the Nagji Hospital, Nasik. In the Nagji Hospital, treatment was given to Yeshwant but he succumbed to his injuries on 25.5.1993 at about 9.00 a.m. Bababai further deposes that thereafter, she had gone to the Kalwan Police Station and had lodged her report at Exhibit 36. According to her, Accused No.2 Chhababai was insisting that her share in the property be given to Chhababai and since PW3 Bababai had declined to give the share, the accused had assaulted her son. 6. In cross-examination she has admitted that a partition list was written when the partition of field was made between them. She had admitted that she does not know if she had filed a Civil Suit in respect of the partition against the accused in the Civil Court at Kalwan. She also could not state that if she had tiled a Civil Suit for partition of ancestral house against the accused. She has admitted that she does not know if the Suit filed by her in the Kalwan Court was dismissed and an Appeal was filed against that decision which was also dismissed by the District Court. She could not state if the Appeal was dismissed 3 to 4 days prior to the incident. She has admitted that she does not know if there was mutation proceedings to respect of the mutation of her name in the field which had gone in the share of Chhababai in 1981. She has denied the suggestion that on the date of incident at about 4.00 p.m. the accused had gone to their field in village Visapur. She has also denied the suggestion that the accused had questioned her as to why she had forcibly occupied the house of her mother. She has admitted that she does not know if the accused had also sustained the injuries. She has also denied the suggestion that the accused had questioned her as to why she had forcibly occupied the house of her mother. She has admitted that she does not know if the accused had also sustained the injuries. She has admitted as correct that she and the other prosecution witnesses have been prosecuted by the Police for having assaulted the accused on the same day. She has denied the suggestion that the accused in the exercise of their right of defence had pelted stones at them. She has further admitted that Dashrath (PW-4) was in the farm at the time of the incident. She has admitted that after Yeshwant had fal1en on the ground, PW-4 Dashrath had come from the field. Importantly, according to this witness, PW-4 Dashrath was not present at the time of the incident. This witness also does not show the presence of PW-5 Ratnabai, PW-6 Baliram and PW-7 Khandu at the time of the incident. This witness has also admitted that she alongwith others is being prosecuted for having caused injuries to the accused. FIR lodged by Accused No.2 Chhababai is at Exhibit 56 while the charge-sheet lodged in the case instituted on the basis of report of Accused No.2 Chhababai is at Exhibit 57. PW- 11 PSI Thomare in cross-examination has admitted that he had investigated the complaint lodged by Accused No.2 Chhababai, on the basis of which Crime No.49 of 1993 was registered. He has also admitted in that case also he had seized stones from the scene of the incident. He has also admitted that while arresting the present accused, he had found that they had received in Juries. 7. Prosecution has examined PW-4 Dashrath, who deposes that on 24.5.1993 he alongwith his brother deceased Yeshwant, his mother Bababai and his wife PW-5 Ratnabai were present in the house. At about 5.00 p.m. Accused No.2 Chhababai and the other accused had come in front of their house in a bullock cart. All the accused were armed with sticks. The accused were asserting that the house in which Bababai and others were residing belonged to the accused and the accused asked the complainant party to vacate the house. PW3 Bababai informed the accused that the house belonged to her and she could not vacate the house. The accused thereafter abused them and then pelted stones. The accused were asserting that the house in which Bababai and others were residing belonged to the accused and the accused asked the complainant party to vacate the house. PW3 Bababai informed the accused that the house belonged to her and she could not vacate the house. The accused thereafter abused them and then pelted stones. The accused dragged deceased Yeshwant out of the house and accused Pandharinath and accused Khushal assaulted deceased Yeshwant with sticks on the head of Yeshwant. Yeshwant fen on the ground due to assault and sustained bleeding injuries. The other accused then pelted stones at deceased Yeshwant. According to Dashrath, he alongwith his wife PW-5 Ratnabai and his mother PW-3 Bababai attempted to save Yeshwant but they were also assaulted by the accused. According to Dashrath, accused Laxman assaulted him with a stone. Accused Vishwanath also assaulted him with a stone. PW-3 Bababai was also assaulted by stones. Accused Laxman assaulted PW-5 Ratnabai with stones. According to Dashrath, he picked up Yeshwant and brought him in the house with the help of his mother. Yeshwant was then taken in a bullock cart to the hospital of Dr. Mutadak from where he was shifted to the Nagji Hospital. On the next day injured Yeshwant succumbed to his injuries. 8. In the cross-examination he has admitted as true that PW-3 Bababai had filed R.C.S. No.107 of 1984 in the Kalwan Court against the accused. He has also admitted that the suit was dismissed and therefore, his father had filed an Appeal in the District Court at Nasik. He then states that he does not know about the fate of the Appeal. He has admitted that he does not know if the mutation proceedings were going on in the Kalwan Court between his mother PW-3 Bababai and the accused. He has admitted that he does not know if on the date of the incident the accused had also sustained injuries. He has denied the suggestion that at the time of the incident he was not present in the house. He has admitted as correct that a charge-sheet has been filed against him and his mother and his wife PW-5 Ratnabai on the allegations that they had assaulted the accused on the day of the incident. 9. He has denied the suggestion that at the time of the incident he was not present in the house. He has admitted as correct that a charge-sheet has been filed against him and his mother and his wife PW-5 Ratnabai on the allegations that they had assaulted the accused on the day of the incident. 9. Prosecution has examined PW-5 Ratnabai, wife of PW-4 Dashrath, who deposes that on the day of the incident, she, alongwith Dashrath and deceased Yeshwant had returned home at about 5.00 p.m. According to Ratnabai, she was cooking food when the accused came in front of her house. The accused asked the complainant party to vacate the house and also threatened to kill them if they did not vacate the house. Accused Laxman and his sons thereafter started pelting stones. Accused No.4 Pandharinath and accused Khushal entered the house armed with sticks and they dragged deceased Yeshwant out of the house and assaulted Yeshwant with sticks on his head. On sustaining the injuries, Yeshwant fell on the ground. According to Ratnabai, she went to rescue injured Yeshwant but accused Laxman and accused Bhausaheb pelted stones at her. Because of the stone pelting, Ratnabai and PW-3 Bababai sustained injuries. According to her, PW-4 Dashrath and PW-3 Bababai then picked him up and placed injured Yeshwant in a bullock cart and took him to the hospital at Kalwan. From Kalwan, injured Yeshwant was removed to the Nagji Hospital for treatment. On the next day injured Yeshwant succumbed to his injuries. 10. In cross-examination she has admitted that some of the accused were armed with sticks while some of them were carrying stones. An omission has been elicited that she had not stated in her previous statement that one Kandalkar had also come to the house alongwith them from the farm. Omission is elicited that she had not stated that deceased Yeshwant had asked her to cook food and therefore, she was cooking food at the time of the incident. Omission is also elicited that she had not stated in her previous statement that Pandharinath and Khushal had assaulted deceased Yeshwant with sticks on his head. Omission is elicited that she had not stated that deceased Yeshwant had asked her to cook food and therefore, she was cooking food at the time of the incident. Omission is also elicited that she had not stated in her previous statement that Pandharinath and Khushal had assaulted deceased Yeshwant with sticks on his head. At this juncture the learned defence Counsel had pointed out to the Court that in the statement provided to the accused, there was no mention in the statement of Ratnabai about the assault on deceased Yeshwant by accused Pandharinath and Khushal while in the statement before the Court, there was a mention about the assault. She has admitted that she does not know if the accused had sustained injuries at the time of the incident. She has admitted as correct that a criminal case has been filed against her for having assaulted the accused on the date of the incident. 11. Prosecution has examined PW-6 Baliram, who deposes that on hearing the commotion he had gone to the house of deceased Yeshwant and noticed the Appellants pelting stones at PW-3 Bababai, PW-4 Dashrath, deceased Yeshwant and PW-5 Ratnabai. According to Baliram, he requested the Appellants not to pelt stones. Accused Pandharinath and accused Khushal then assaulted deceased Yeshwant with sticks on his head. Deceased Yeshwant fell on the ground due to assault. One Konduramji, who was present, requested PW-6 Baliram to go to the Police Station. Accordingly, Baliram started going to Kalwan on foot and reached up to village Bej. He could not get any vehicle from village Bej for village Kalwan. By that time injured Yeshwant was brought in a bullock cart and Baliram met them at Bej. Baliram then boarded the bullock cart and thereafter, went to the house of Dr. Mutadak. PW-3 Bababai then went to the Police Station and lodged the report. According to Baliram he stayed in the Hospital while the injured was shifted to the Nagji Hospital. 12. In cross-examination he has admitted that since 1980 he was working as a Kotwal at village Visapur. He has admitted that it was his job to inform the Police Patil about the commission of any offence. In that offence, in this crime he had not made any report to the Police Patil or Police Station at Kalwan. 12. In cross-examination he has admitted that since 1980 he was working as a Kotwal at village Visapur. He has admitted that it was his job to inform the Police Patil about the commission of any offence. In that offence, in this crime he had not made any report to the Police Patil or Police Station at Kalwan. He admits that on 24.5.1993, at about 12.00 midnight he had gone to Police Station Kalwan alongwith Bababai. He has admitted that while the report was being lodged by Bababai, he was not present there. He has admitted that the Police had recorded the statement at 25.5.1993. Omission has been elicited that he had not stated that he started walking to Kalwan and had reached upto Village Bej and thereafter, could not get any vehicle. Omission has been elicited that he had not stated in his previous statement that he met Bababai and Dashrath and boarded the bullock cart and took the injured to the hospital of Dr. Mutadak. Omission has been elicited that he had not stated in his previous statement that he waited in the hospital near the injured Yeshwant while Bababai went to lodge the report. He has admitted that he could not state if the accused had sustained injuries in the incident. He has also admitted that he does not know if on the date of the incident the accused had lodged a report against Dashrath, Bababai, Ratnabai and deceased Yeshwant. 13. Prosecution has examined PW-7 Khandu, who deposes that on 24.5.1993 he had gone to the agricultural field of PW-4 Dashrath for construction of the house. He claims that he returned to the house of Dashrath in the evening and noticed that Dashrath was being assaulted by the Appellants. Deceashed Yeshwant was also assaulted by Accused Pandharinath and Khushal by a stick. According to Khandu, he gave water to Yeshwant and then placed Yeshwant in the bullock cart. PW-6 Baliram and others took injured Yeshwant to Kalwan while PW-7 Khandu returned home. 14. In cross-examination he has admitted that since 4.00 p.m. he was near the house of PW-4 Dashrath. He has admitted that while he was present, the scuffle was going on. Accused Pandharinath and Khandu were assaulting Yeshwant for about 4 to 10 minutes with sticks. He claims that the Police had not recorded his statement. 14. In cross-examination he has admitted that since 4.00 p.m. he was near the house of PW-4 Dashrath. He has admitted that while he was present, the scuffle was going on. Accused Pandharinath and Khandu were assaulting Yeshwant for about 4 to 10 minutes with sticks. He claims that the Police had not recorded his statement. He has admitted as correct that prior to the incident he had not gone to the house of Dashrath More. 15. Prosecution has examined PW-9 Dr. Mutadak, who deposes that on 24.5.1993 at about 8.30 p.m. injured Yeshwant was brought in his hospital by his mother PW3 Bababai and his brother PW-4 Dashrath. Yeshwant had a bleeding injury on his head and since Yeshwant was serious, PW-9 Dr. Mutadak asked Bababai and others to shift Yeshwant to the Hospital at Nasik. In the meantime, PW-9 Dr. Mutadak gave saline to Yeshwant and also administered first aid. After about 2 hours, Yeshwant was removed from his hospital to Nasik. According to him, Yeshwant had sustained laceration on scalp 1 1/2" x 2 1/4" x 1/4". He had stitched the said injury. 16. In cross-examination PW-II PSI Namdeo Thomare has admitted that he had recorded the statement of PW-5 Ratnabai. Copies of the statements were prepared by the constable. According to PW-11 PSI Thomare, a Constable may have committed mistake in making the copies of the statement. He has denied the suggestion that the original statement was tampered with. 17. The learned Counsel for the Appellant has urged before us that PW-3 Bababai does not refer to the presence of PW5 Ratnabai, PW-6 Baliram and PW-7 Khandu at the time of the incident. In fact, according to PW-3 Bababai, PW-4 Dashrath was not present at the time of the incident as he had arrived subsequent to the incident. It is further urged before us that implicit reliance cannot be placed on the testimony of the prosecution witnesses as there are material variations in the evidence of the prosecution witnesses. It is also urged before us that the prosecution witnesses have not explained the injuries sustained by the accused and consequently, witnesses have suppressed the genesis of the incident and therefore, the accused are entitled to be given the benefit of doubt. The learned APP has supported the findings arrived at by the Trial Court. 18. It is also urged before us that the prosecution witnesses have not explained the injuries sustained by the accused and consequently, witnesses have suppressed the genesis of the incident and therefore, the accused are entitled to be given the benefit of doubt. The learned APP has supported the findings arrived at by the Trial Court. 18. The perusal of the evidence of PW-3 Bababai certainly indicates that she does not refer to the presence of the other prosecution witnesses. In fact, in no uncertain terms PW-3 Bababai deposes that Accused No.4 Dashrath was not present at the scene of the incident and had arrived after Yeshwant had sustained the injuries. PW-4 Dashrath claims that he was present in the house right from the beginning. PW-7 Khandu claims that he was working in the agricultural field of PW-4 Dashrath and since 4.00 to 5.00 p.m. he was present at the house of Dashrath. Perusal of the evidence of the other eye-witnesses also indicates that there are material variations in the evidence of the witnesses in respect of the actual incident. The prosecution witnesses have also not explained the injuries sustained by the accused. The report lodged by accused Chhababai has been exhibited at Exhibit 56. On the basis of the said report, a charge-sheet against the prosecution witnesses had been filed. The charge-sheet indicates that the accused had sustained the injuries. Moreover, PW-11 PSI Thomare has admitted that while arresting the accused, he had noticed that the accused had sustained the injuries. Thus, the prosecution has not explained the injuries sustained by the accused. On account of material variations in respect of the incident in the evidence of the prosecution witnesses, implicit reliance cannot be placed on the testimony of PW-3 Bababai as well as the other prosecution witnesses. It is apparent to us that these witnesses are suppressing a part of the incident relating to the accused sustained the injuries. Deceased Yeshwant had sustained only one external injury which resulted in his death. According to PW-l Dr. Vyavahare, deceased Yeshwant had sustained a severe blow which resulted in the deceased sustaining the injuries. Interestingly, PW-l Dr. Vyavahare does not depose whether the injury was caused by a stick or by stone. Thus, the medical evidence also does not corroborate the evidence of the eyewitnesses that deceased Yeshwant was dragged from the house and was assaulted by two accused by sticks. Interestingly, PW-l Dr. Vyavahare does not depose whether the injury was caused by a stick or by stone. Thus, the medical evidence also does not corroborate the evidence of the eyewitnesses that deceased Yeshwant was dragged from the house and was assaulted by two accused by sticks. If deceased Yeshwant had sustained the injury on account of stone pelting, the witnesses do not name the accused who had pelted the stone which had hit deceased Yeshwant. The evidence of the prosecution witnesses therefore in our opinion is insufficient at proving the offence beyond reasonable doubt. Coupled with the fact that the prosecution witnesses have suppressed the fact that the accused had also sustained injuries. The eye-witnesses claim that they had sustained injuries. The prosecution has however not proved the injuries. 19. Suppression of the injuries to the accused by the prosecution witnesses assumes importance in the light of the fact that the accused had lodged a report alleging that they had been assaulted by the complainant party. Even the Investigating Officer has admitted that the accused had sustained injury and had investigated the report lodged by the accused and had filed a charge-sheet against the complainant party. The evidence of the prosecution in the present case comprises of the evidence of the interested and inimical witnesses. It is not disputed that the relations between the accused and the complainant party were strained. Civil Suit had been filed by PW3 Bababai which was dismissed. There is no consistency in the evidence of the prosecution witnesses vis-a-vis the incident. The first informant does not show the presence of the other prosecution witnesses. We, therefore, find that implicit reliance could not have been placed on the evidence of the prosecution witnesses. The accused, in our opinion, therefore, are entitled to be given the benefit of doubt. 20. Accordingly, Criminal Appeal is allowed and conviction and sentence of the Appellants are hereby quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Fine if paid, by them be refunded to them. Since they are on bail, their bail bonds stand cancelled. Appeal allowed.