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2016 DIGILAW 2035 (BOM)

Deelip S/o Kishan Jadhav v. State of Maharashtra

2016-10-27

V.L.ACHLIYA

body2016
JUDGMENT : V.L. Achliya, J. Being aggrieved by the Judgment & Order dated 27/6/2002 passed by First Adhoc Additional Sessions Judge, Latur convicting the appellants for offence u/s 323, 504, 429 r/w 34 of the IPC, the appellants have preferred this appeal. 2. Before appreciating the submissions advanced, it is necessary to consider few facts leading to prosecution of the appellants/accused. The appellants were prosecuted for committing offence punishable u/s 323, 504, 429 r/w 34 of the IPC and Section 3(i)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as "Atrocities Act") with an allegation, that on 04.09.1999 at about 11:00 hrs., near bus stand of village Kumtha, the appellants acting in furtherance of their common intention voluntarily caused hurt to Shridhar Shinde (PW4), the husband of complainant Gangaubai Shinde (PW1) and also insulted the complainant and her husband and thereby committed offence u/s 323, 504 r/w 34 of the IPC and in the course of commission of said act, also committed the act of mischief by killing a monkey of the complainant by assaulting him by means of stick and thereby committed an offence u/s 429 r/w 34 of the IPC. Besides prosecuting them for committing offences under the Penal Code, the appellants were also prosecuted for the act to intentionally humiliate the complainant, who belongs to Mang community, in public view and thereby committed offence u/s 3(i)(x) of the Atrocities Act. 3. As per the case of the prosecution, Gangaubai (PW1) and her husband Shridhar (PW4) were resident of village Kumtha and they used to earn livelihood by showing the play of monkey. On 04.09.1999, the complainant along with her husband were proceeding from western Kumtha towards eastern Kumtha. When they came near ST stand, the accused Nos. 1 & 2 and other villagers told them to show the play of monkey. At that time, the husband of the complainant told them that as he was already late and he had to reach Killari by road, he is unable to show them play of monkey. At that time, accused Nos. 1 and 2 pressed the monkey by means of stick. Because of said act of accused Nos. 1 and 2, the monkey got annoyed and he rushed towards Hanmant Jagtap, torn his clothes & started shouting. The accused No. 2 dealt a blow of stick over the head of monkey. At that time, accused Nos. 1 and 2 pressed the monkey by means of stick. Because of said act of accused Nos. 1 and 2, the monkey got annoyed and he rushed towards Hanmant Jagtap, torn his clothes & started shouting. The accused No. 2 dealt a blow of stick over the head of monkey. On receiving the blow, the monkey died on the spot. The accused No. 1 dealt blows of stick over the head, waist, back and right ear of Shridhar. The accused No. 2 assaulted Shridhar, the husband of complainant by means of stick and also abused the complainant and her husband. Gangubai (PW1) lodged the complaint in respect of the incident. On the basis of the complaint lodged, the offence u/s 323, 429, 504 r/w 34 of the IPC came to be registered vide C.R. No. 247/99 with Police Station Killari. PW3 (Subhash) registered the offence & referred Shridhar (PW4), the husband of the complainant Gangubai to Rural Hospital. The dead body of the monkey which was brought to Police Station by complainant was referred to Veterinary Hospital at Killari to conduct the postmortem on the dead body of the deceased monkey. During the course of investigation, the offence u/s 3(i)(x) of the Atrocities Act was added on the basis of supplementary statement of Gangubai (PW1) recorded on 09.09.1999. PSI Surendra Gandam (PW7) conducted the further investigation. During the investigation, statement of Abhimanyu Kamble (PW5), who alleged to have witnessed the incident, was recorded by the Investigating Officer. On conclusion of the investigation, the charge-sheet was prepared and filed in the court of JMFC, Ausa. Since the offence u/s 3(i)(x) of the Atrocities Act, being triable by Special Court, the case was transferred to the file of Special Judge, Latur. The charge u/s 323, 504, 429 of the IPC and 3(i)(x) of the Atrocities Act framed against the accused. Both of them pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution has examined in all eight witnesses. The accused have not entered into defence. They have taken the defence of total denial and false implication at the instance of complainant on account of political rivalry. According to accused, they were members of Shivsena, a political party, whereas; husband of the complainant was member of Congress Party. The accused have not entered into defence. They have taken the defence of total denial and false implication at the instance of complainant on account of political rivalry. According to accused, they were members of Shivsena, a political party, whereas; husband of the complainant was member of Congress Party. As the husband of complainant was heavily drunk and behaving in disorderly manner in the village, the accused No. 1 being the Police Patil of village lodged report against him. As a counter blast to the complaint lodged, the false complaint has been lodged by the complainant. 4. On conclusion of trial, the trial Court has held the appellants guilty of offence u/s 323, 429, 504 r/w 34 of the IPC. They were acquitted for offence u/s 3(i)(x) of the Atrocities Act. For committing offence u/s 323 r/w 34 of the IPC, the accused were sentenced to suffer RI for three months and pay fine of Rs. 500/- each and in default to suffer rigorous imprisonment for one month. For committing offence u/s 504 r/w 34 of the IPC, they were sentenced to suffer RI for three months and pay fine of Rs. 500/- each and in default of which, to suffer rigorous imprisonment for one month. For committing offence u/s 504 of IPC, they were sentenced to suffer rigorous imprisonment for three months each and to pay fine of Rs. 500/- each, in default of which, to suffer rigorous imprisonment for one month. For committing offence u/s 429 of IPC, they were sentenced to undergo rigorous imprisonment for two years each and to pay fine of Rs. 1000/- each, and in default, to suffer rigorous imprisonment for two months. Being aggrieved, the appellants have preferred this appeal. During pendency of trial, the appellant No. 3 died on 25.11.2005, hence the appeal abated against it. 5. Mr. Pawar, learned counsel for the appellants strenuously contended that, the impugned Judgment & Order is based upon improper appreciation of evidence. In the complaint filed, the complainant nowhere stated that accused Nos. 1 to 3 abused the complainant and her husband. So also, there is no evidence to show that the monkey died due to assault. On the contrary, Gangubai has admitted that the monkey was ill and, therefore, they were going to the Hospital for treatment of their monkey. In the complaint filed, the complainant nowhere stated that accused Nos. 1 to 3 abused the complainant and her husband. So also, there is no evidence to show that the monkey died due to assault. On the contrary, Gangubai has admitted that the monkey was ill and, therefore, they were going to the Hospital for treatment of their monkey. By recording the supplementary statement of Gangubai on 09.09.1999, the deliberate attempt has been made to anyhow implicate the accused for offence under the provisions of Atrocities Act. Although it is the case of the prosecution that monkey pounced on Hanmant and torn his clothes, the prosecution has not examined him as a witness. The incident was taken place on 04.09.1999. The panchanama was prepared on 09.09.1999. The defence of the accused was totally ignored by the trial Court while appreciating the evidence. It is pointed out that there was no evidence against the accused No. 3, still the trial Court has convicted the accused No. 3, which shows the manner in which the evidence was appreciated and conviction has been awarded. There is no cogent, convincing evidence to sustain the conviction. The trial Court has not properly appreciated the evidence. He has further submitted that at the time of the incident, the appellant No. 1 was serving as Police Patil and appellant No. 2 was Sarpanch of Village Panchayat Kumtha. Out of political rivalry, they have been falsely implicated in the case. He has submitted that, there is absolutely no cogent, convincing and reliable evidence to sustain the conviction under section 323, 504 and 429 r/w 34 of the IPC. 6. On the other hand, the learned APP has supported the Judgment & Order passed by the trial Court. He has submitted that, the testimony of Gangubai (PW1), Shridhar (PW4), Kausalyabai (PW2) and Abhimanyu Kamble (PW5) sufficient to establish the case of the prosecution. He has submitted that, the reasons and findings recorded by the trial Court are quite convincing and based upon proper appreciation of the evidence on record. 7. In order to appreciate the submissions advanced, I have carefully considered the submissions advanced in the light of the oral and documentary evidence adduced by the prosecution to prove the guilt against the accused and further perused the reasons & findings recorded by the trial Court. 7. In order to appreciate the submissions advanced, I have carefully considered the submissions advanced in the light of the oral and documentary evidence adduced by the prosecution to prove the guilt against the accused and further perused the reasons & findings recorded by the trial Court. On perusal of the reasons recorded by the trial Court, it appears that the trial Court has found testimony of PW1 and PW4 as reliable and corroborated through the testimony of PW2 & PW5. 8. In order to prove its case, the prosecution has mainly relied upon the testimony of Gangubai the complainant (PW1) & Shridhar (PW4), the husband of Gangubai. She has deposed that, on 04.09.1999 the accused Nos. 1 to 3 were present at the S.T. Bus Stand at Kumtha. They told her husband i.e. Shridhar to show the play of monkey. He refused to show them play of monkey and told them they were already late and they have to proceed to Killari. Thereafter, all the accused pushed the monkey by stick and therefore monkey got annoyed and rushed towards Hanmant. He pulled his clothes. At that time, accused No. 2 gave blow of stick over the head of monkey. The accused No. 1 dealt blow of stick over the head of her husband Shridhar. All accused beaten her husband as well as monkey by means of stick and abused complainant and her husband. Due to assault by the accused, the monkey died on the spot and her husband became unconscious. She therefore went to Police Station and lodged complaint vide Exh. 12. She further deposed that, her husband was referred for medical examination and treatment by the Police. She further deposed that, she belongs to Mang caste and accused are Maratha by caste. They abused her in the name of her caste. She further deposed that, at the time of lodging the complaint, she was frightened and therefore she has not stated about the specific abuses given by accused to her in the name of her caste. In the cross-examination, PW1 has admitted that there were about 50 persons present at the S.T. Stand when incident was occurred. She admitted that when monkey rushed towards Hanmant Jagtap, he gave push to monkey and inflicted blow of stone over the head of monkey. In the cross-examination, PW1 has admitted that there were about 50 persons present at the S.T. Stand when incident was occurred. She admitted that when monkey rushed towards Hanmant Jagtap, he gave push to monkey and inflicted blow of stone over the head of monkey. Later on, she changed her version and stated that Hanmant Jagtap has not assaulted the monkey by stone but assaulted by means of stick. She further admitted that, when she went to Police Station to lodge complaint, Hanmant Jagtap was also present at the Police Station. She admitted that, at the time of the incident, accused No. 1 was Police Patil of village Kumtha. She has stated that, she is unable to remember that at the time of incident the accused No. 2 Uddhav Suryawanshi was the Sarpanch of the village Kumtha. She denied that, accused Nos. 1 and 2 and Hanmant Jagtap had gone to Police Station for lodging the complaint against her about the nuisance of the monkey. She admitted that, four days after the incident she went to Police Station and told the police that accused had abused them in the name of caste. 9. If we examine the entire case of the prosecution in the light of the testimony of PW1 and complaint at Exh. 12 lodged by PW1, then no offence u/s 429 of the IPC proved against the appellant/accused Nos. 1 and 2. In the complaint at Exh. 12 lodged immediately after the incident, Gangubai (PW1) the complainant has disclosed that monkey was assaulted by accused No. 2 and he dealt a blow of one stick over the head of monkey. In the cross-examination, she has stated that, Hanmant Jagtap (who is not accused in the case) assaulted monkey. She has categorically stated that, Hanmant dealt a blow of stick over the head of monkey. The relevant admission reads as under : "Monkey rushed towards Hanmant Jagtap. It is correct Hanmant Jagtap pushed the monkey and gave stone blow on the head of monkey. I again say Hanmant Jagtap had not given stone blow on the head of monkey, but he assaulted my monkey by means of stick." 10. The relevant admission reads as under : "Monkey rushed towards Hanmant Jagtap. It is correct Hanmant Jagtap pushed the monkey and gave stone blow on the head of monkey. I again say Hanmant Jagtap had not given stone blow on the head of monkey, but he assaulted my monkey by means of stick." 10. Thus, in the light of the vital admission brought through the cross-examination of Gangubai (PW1) that, Hanmant Jagtap had assaulted monkey and dealt a blow on the head by means of stick, the conviction of appellant is not sustainable u/s 429 r/w 34 of the IPC. As per the report of postmortem at Exh. 15, except injury over head, no other injury was noticed on the body of the monkey. The cause of death of the monkey was also found due to congestion of brain due to assault by means of hard object. Thus, the monkey was died due to single blow and that too over the head. PW1 has categorically stated that, blow was dealt by Hanmant, who is not accused in the case. 11. If we consider the testimony of Shridhar Shinde, the another eyewitness to incident, then he has given altogether different version as to assault on monkey. He has deposed that, accused Nos. 1 to 3 had beaten monkey by means of stick. Thus, he attributed number of blows of stick dealt over the body of monkey by each of the accused which resulted into death of monkey, which runs contrary to the version of incident given by Gangubai (PW1) and postmortem report Exh. 15. Therefore, no credence can be placed on the testimony of PW1 & PW4 to sustain the charge u/s 429 of the IPC as against the appellants/accused Nos. 1 and 2. Shridhar (PW4) has gone to the extent in denying that the monkey had torn the clothes of Hanmant Jagtap. 12. Kausalyabai (PW2) was examined by the prosecution as an independent witness. She deposed that, the accused No. 2 pressed monkey by means of stick and therefore monkey got annoyed. She categorically deposed that the accused Nos. 1 and 3 had beaten monkey by means of stick and due to assault by the accused monkey died on the spot. Thus, PW2 contradicted the testimony of Gangubai as well as Shridhar. She deposed that, the accused No. 2 pressed monkey by means of stick and therefore monkey got annoyed. She categorically deposed that the accused Nos. 1 and 3 had beaten monkey by means of stick and due to assault by the accused monkey died on the spot. Thus, PW2 contradicted the testimony of Gangubai as well as Shridhar. In examination-in-chief, Gangubai has deposed that the accused No. 2 dealt a blow of stick over the head of the monkey which has resulted into death of monkey. Shridhar (PW4) has stated that accused Nos. 1 to 3 assaulted monkey by means of stick which resulted into death of monkey. Abhimanyu Kamble (PW5), the another independent witness examined by the prosecution deposed that accused Nos. 1 to 3 had assaulted monkey by means of stick which has resulted into his death. Thus, there is no consistency in the testimony of complainant, her husband and two independent witnesses examined by the prosecution. The testimony of PW2, PW4 and PW5 finds no corroboration from the postmortem report at Exh. 15 wherein except the head injury, no other injury was detected on the body of monkey. Thus, in view of material variance and contradictions amongst the testimony of PW1, PW2, PW4 & PW5 and admission brought through the cross-examination of PW1 that monkey died due to blow of stick dealt by Hanmant Jagtap, who was not made accused in the case, the reasons and findings recorded by the trial Court are not sustainable in law as same are found to be perverse and based upon improper appreciation of evidence. In this view, the conviction of the appellants u/s 429 r/w 34 of the IPC is liable to be set aside. 13. Besides the charge u/s 429 of the IPC, the accused were also convicted u/s 323 & 504 of the IPC According to case of the prosecution, the accused had voluntarily assaulted Shridhar (PW4) by means of stick and caused hurt and thereby committed offence u/s 323 r/w 34 of the IPC and in the course of same act, they intentionally insulted Shridhar (PW4) and Gangubai (PW1) and provoked them to break the public piece and thereby committed offence u/s 504 of the IPC. It is therefore necessary to consider whether there is any cogent, convincing and reliable evidence to sustain charge u/s 323 and 504 of the IPC. It is therefore necessary to consider whether there is any cogent, convincing and reliable evidence to sustain charge u/s 323 and 504 of the IPC. Gangubai (PW1) has deposed that, the accused No. 1 gave a blow of stick on the left side head of her husband and accused persons had beaten her husband as well as monkey by means of stick and they abused them and due to assault monkey died on the spot and Shridhar became unconscious. She has further deposed that, immediately after the complaint, Shridhar was referred for medical examination and treatment by Police. 14. In order to prove that Shridhar sustained injuries in the incident, the prosecution has examined Dr. Gurudas Shetty (PW8) whose testimony is at Exh. 37. He deposed that, on 04.09.1999 Dr. Ashwini examined Shridhar and noted following injuries. "1. Contusion on rt. Gluteal region, 5x4 cm., Simple in nature, within 24 hours. 2. Abrasion behind Rt. Ear, 3 x ¼ cm., simple, within 24 hrs." 15. He further deposed that, the above mentioned injuries are possible by article like stick. In the cross-examination, PW8 has admitted that he has not personally examined Shridhar Shinde. On 04.09.1999, he was not on duty. He identified the signature of Dr. Amladdin on the basis of muster roll. 16. Prosecution has examined Shridhar, the alleged injured, as PW4. He has deposed that on the day of the incident, the accused No. 1 dealt the blow of stick on the right side of head above ear & accused Nos. 2 & 3 also beaten him by means of stick and due to that assault, he became unconscious. He deposed that, he does not know when he was taken to Police Station. In the cross-examination, he deposed that he received four stick blows on his person and it did not happen that accused No. 1 alone assaulted him. He deposed that, he received four stick blows over his head and felt giddiness. He deposed that, he received stick blow from front side. If we examine the testimony of PW4 in the light of the report of medical examination, then it reveals that the injuries received by PW4 were simple in nature. No injury over the head was detected during the medical examination. He was found to have sustained two simple injuries which includes contusion over right gluteal and another one as abrasion behind right ear. No injury over the head was detected during the medical examination. He was found to have sustained two simple injuries which includes contusion over right gluteal and another one as abrasion behind right ear. If there were multiple blows of sticks dealt by accused Nos. 1 to 3 in a manner stated by PW4, then certainly the injuries over the head and other parts of the body would have been noticed during the medical examination. Report of medical examination does not corroborate the oral testimony of PW4. The assault by all the three accused and four blows of sticks dealt over the head as deposed by PW4 exposes his tendency to make exaggeration. In this view, the testimony of PW4 cannot be safely relied to base the conviction. PW1 (Gangubai) the complainant has deposed that accused No. 1 dealt a blow of stick on the left side ear of her husband i.e. PW4 and all other persons beaten her husband by means of stick. However, in the complaint Exh. 12, PW1 has stated that the accused No. 1 assaulted her husband by means of stick below right side ear of her husband and over the back and leg. PW1 has categorically deposed that, her husband received two blows of stick. The first blow was dealt back side of the ear and the second one was dealt on his waist. Thus, the testimony of Shridhar (PW4), the injured, has been contradicted by his own wife Gangubai (PW1) the complainant in the case. According to PW1, out of two blows dealt, one was below the ear and another blow was dealt over the waist. Whereas; PW4 deposed that he received in all four blows which includes one blow over the head. Thus, there is material contradiction amongst the testimony of PW1 & PW4 about the manner in which the accused assaulted PW4. The medical evidence i.e. the medical report nowhere corroborate the testimony of injured PW4. As per the version of Kausalya (PW2), the alleged eyewitness, the accused No. 1 assaulted Shridhar by means of stick and dealt blow of stick behind the ear and on shoulder. She has not stated that accused Nos. 2 & 3 also assaulted Shridhar by means of stick. On the same point, the another witness to the incident Abhimanyu (PW5) has deposed that the accused Nos. She has not stated that accused Nos. 2 & 3 also assaulted Shridhar by means of stick. On the same point, the another witness to the incident Abhimanyu (PW5) has deposed that the accused Nos. 1 to 3 had beaten Shridhar as well as monkey by means of stick. Thus, there is no consistent evidence as regards the assault made by accused by means of stick. The testimony of injured witness itself found to be not corroborated by the medical evidence and so also found to be full of exaggeration. It is, therefore, unsafe to rely upon the testimony of such interested witness. So also there is no credible evidence to prove the abuses given by accused as well as exactly what abuses given by them. 17. If we consider the over all evidence, then fact is not in dispute that after five days after the incident, Gangubai (PW1) visited the Police Station on 09.09.1999 and gave additional statements so as to book them in an offence punishable under the provisions of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. The trial Court has acquitted the accused for offence u/s 3(i)(x) of Atrocities Act by discarding the testimony of same witnesses. The accused have taken the defence that at the time of the incident, the accused No. 1 was Police Patil of the village and accused No. 2 was Sarpanch. In the complaint at Exh. 12, the complainant has not specifically disclosed the name of the accused No. 3 and role played by him in the incident. PW1 has admitted that at the time of the incident, accused No. 1 was Police Patil of village Kumtha. She has not denied the fact that accused No. 2 was Sarpanch of village Kumtha. Subhash (PW3) the Head Constable attached to Police Station Killari, who has entertained the complaint and registered the offence against accused has admitted in the cross-examination that at the time of the incident, the accused No. 1 was Police Patil of village Kumtha. He has also admitted that, on the day of the incident, the offence u/s 85(1) of Bombay Prohibition Act came to be registered against the husband of the complainant i.e. Shridhar (PW4). PW4 has admitted that the accused No. 2 was acting as a Sarpanch of the village at the time of the incident. He has also admitted that, on the day of the incident, the offence u/s 85(1) of Bombay Prohibition Act came to be registered against the husband of the complainant i.e. Shridhar (PW4). PW4 has admitted that the accused No. 2 was acting as a Sarpanch of the village at the time of the incident. He has not disputed the registration of the case u/s 85(1) of the Bombay Police Act against him. PSI - Kadam (PW7), the Investigating Officer has admitted that the case for committing the offence u/s 85(1) was lodged against the husband of the complainant i.e. PW4. He has also admitted that, at the time of the incident, the accused No. 1 was Police Patil of village and accused No. 2 was Sarpanch of the village Kumtha. Thus, if we consider the over all testimony of witnesses in the light of the defence of the accused, then the possibility of accused being implicated in a false case at the instance of the complainant cannot be ruled out. It is highly unsafe to base the conviction on the basis of the testimony of PW1 & PW4 when it is established that they had tendency to make exaggeration. They visited the police station 5 days after the incident so as to book the accused under the provisions of Atrocities Act. This leads to draw inference that accused were highly interested to see the accused being convicted. Therefore, the implication of the accused in the case on account of political rivalry in the village cannot be ruled out under the facts and circumstances of the case. 18. The testimony of independent witnesses Kausalya (PW2) and Abhimanyu (PW5) also not found worth to be relied. The presence of Kausalya at the place of the incident itself appears to be doubtful. She has deposed that, at the time of the incident Hanmant Jagtap was not present on spot. Whereas the complainant Gangubai (PW1) has categorically deposed about presence of Hanmant on spot and his clothes being torn by monkey. She has deposed that the accused Nos. 1 to 3 had assaulted monkey & dealt 56 blows of sticks over the body of monkey. She further deposed that, incident was going on for 1 hour. This itself raises serious doubt as to whether really PW2 was present on the spot and she has witnessed the incident. She has deposed that the accused Nos. 1 to 3 had assaulted monkey & dealt 56 blows of sticks over the body of monkey. She further deposed that, incident was going on for 1 hour. This itself raises serious doubt as to whether really PW2 was present on the spot and she has witnessed the incident. PW5 has deposed that, incident lasted for about 510 minutes. He expresses his inability to tell the number of persons and the name of the persons who were standing at the ST stand. So also his testimony found to be full of omission. The testimony of PW5 is in material contradiction with the testimony of PW1. 19. Therefore, taking into consideration the overall evidence, I am of the view that the prosecution has failed to prove the guilt against the accused beyond reasonable doubt. The accused being the Police Patil and Sarpanch of the village, the possibility of they being falsely implicated in the false case cannot be ruled out in the light of the evidence on record. In this view, the accused deserve to be given benefit of doubt. I am therefore inclined to allow the appeal and pass the following order. ORDER (I) Criminal Appeal No. 348/2002 is allowed in terms of prayer clause 'B'. (II) The Judgment and Order dated 27.06.2002 passed by Ist Adhoc Addl. Sessions Judge, Latur in Special Case No. 19/2000 is set aside. The appellants No. 1 and 2 are acquitted of offence u/s 323, 429, 504 r/w Section 34 of the IPC. (III) Fine, if paid, same shall be refunded to them. (IV) Appeal stands abated as against appellant No. 3. Appeal allowed.