Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 1181 (BOM)

Arun Chandrabhan Wasule v. State Of Maharashtra

2018-05-02

ROHIT B.DEO

body2018
JUDGMENT Rohit B. Deo, J. - Exception is taken to the judgment and order dated 11.5.2007 rendered by the Adhoc Additional Sessions Judge - 1 in Session Trial 162 of 2004, by and under which, accused 1 - Arun Wasule and accused 2 Ashish Wasule are convicted for offence punishable under section 323 read with section 34 of Indian Penal Code ("IPC" for short) and are sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs. 500/each and are further convicted for offence punishable under section 427 read with section 34 of IPC and are sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs. 500/each. Accused Arun and Ashish are acquitted of offence punishable under section 302 read with section 34 of IPC. Accused 3 Chandrabhan Wasule who was also convicted for offence punishable under sections 323 and 427 read with section 34 of IPC was granted the benefit of Probation of Offenders Act 1958. Accused Arun Wasule expired during the pendency of the appeal and the appeal stands abated as regards the said accused. 2. Heard Shri N.B. Raut, the learned counsel for appellant - accused and Shri N.B. Jawade, learned Additional Public Prosecutor for the respondent / State. 3. The prosecution case in brief is that accused 1 Arun Wasule, accused 2 - Ashish Wasule who is the son of accused 1 Arun and accused 3 Chandrabhan Wasule who is the father of accused 1 Arun have a hotel at S.T. stand, Anjangaon Bari. The deceased Shankar Ambadkar had started a water kiosk near the hotel of the accused. The incident occurred on 1.4.2004 at 4.00 a.m. in the morning when Shankar had been to the S.T. stand to fill the earthen pots in the water kiosk with water. The accused abused and manhandled Shankar, which incident was witnessed by Rekha Ambadkar the wife of Shankar. The bone of contention was that accused Arun objected to the water kiosk claiming that the water kiosk was on his land. In the altercation, accused Arun assaulted Shankar with bamboo. The other accused dragged Shankar towards heap of bricks and started beating Shankar with brick pieces. Rekha Ambadkar and her son Rahul then aged 12 years were also manhandled. A report was lodged at Badnera Police Station by Shankar. In the altercation, accused Arun assaulted Shankar with bamboo. The other accused dragged Shankar towards heap of bricks and started beating Shankar with brick pieces. Rekha Ambadkar and her son Rahul then aged 12 years were also manhandled. A report was lodged at Badnera Police Station by Shankar. The police referred Shankar to Modi Hospital, Badnera where he was examined. Shankar was discharged on the same day. On 4.4.2004, the health of Shankar deteriorated, he was admitted in Irvin Hospital, Amravati at 11.00 a.m. on 5.4.2004 since he was having difficulty in breathing. Shankar died after an hour of the admission in the hospital. 4. Dr. Anil Kavimandan who conducted the autopsy opined that no definite opinion can be given about the cause of death. Rekha Ambadkar lodged report on the basis of which offence punishable under sections 323, 504, 506, 302 read with section 34 of the IPC were registered against the accused. The culmination of investigation led to submission of the chargesheet in the Court of Judicial Magistrate First Class, Amravati who committed the case to the Sessions Court, Amravati. The learned Sessions Judge framed charge (Exh. 13) for offence punishable under section 323, 427 and section 302 read with section 34 of the IPC. The accused abjured guilt and claimed to be tried. The defence is of total denial and false implication. 5. The learned Sessions Judge recorded a finding that the prosecution failed to prove that the accused caused multiple injuries to Shankar leading to his death. This finding has assumed finality. The probable cause of death, as recorded in the opinion of Dr. Anil Kavimandan PW 7 (Exh. 56) is ventricular (heart) failure. 6. The accused are convicted of offence punishable under sections 323 and 427 of the IPC. The edifice of the prosecution case is constructed on the testimonies of PW 3 - Rahul Ambadkar and PW 4 - Rekha Ambadkar, the son and widow of the deceased. Rahul has deposed that on the fateful day, accused Arun was beating his father with bamboo. His father was dragged near the heap of the bricks and all the accused started beating his father with bricks. If the version of PW 3 - Rahul is seen, the role attributed to appellant Ashish is assaulting Shankar with bricks. However, this evidence is not corroborated by the medical evidence. His father was dragged near the heap of the bricks and all the accused started beating his father with bricks. If the version of PW 3 - Rahul is seen, the role attributed to appellant Ashish is assaulting Shankar with bricks. However, this evidence is not corroborated by the medical evidence. The evidence that all the accused assaulted Shankar by bricks, is an omission. In so far as PW 4 - Rekha Ambadkar is concerned, her version is that accused Arun assaulted her husband by bamboo, accused Ashish dragged her husband near the brick heap and it was accused Chandrabhan who assaulted her husband by bricks. The evidence of PW 3 and PW 4 is clearly inconsistent. PW 4 has not deposed that accused Ashish assaulted her husband by brick. The only role assigned to accused Ashish is that he dragged her husband near brick heap. Moreover, the evidence that accused Ashish dragged her husband to the heap of bricks, is an embellishment. 7. Shankar was medically examined on 1.4.2004 i.e. the date of the alleged incident. Three abrasions were noticed. However, in the autopsy which was conducted on 5.4.2004 as many as ten abrasions are noticed and in the opinion of Dr. Anil Kavimandan - PW 7, the injuries can be caused by any hard and blunt object. It is elicited in the cross-examination that in the post mortem report, the colour of injuries is not mentioned. It is not in dispute that the police did refer accused Shankar to medical examination on 1.4.2004, but no cognizance of the report was taken. The injury report which was issued on 1.4.2004 makes a reference to three abrasions while the autopsy conducted on 5.4.2004 refers to ten abrasions for which no explanation is forthcoming. If the evidence is considered holistically, there is sufficient doubt created about the veracity of the prosecution version. It is trite law, that the benefit of the doubt must go in favour of the accused. 8. The judgment and order impugned is unsustainable and is set aside. The accused is acquitted for the offence punishable under sections 323, 427 read with section 34 of IPC. 9. Bail bond of the accused is discharged, fine paid by the accused, if any, be refunded. 10. The appeal is allowed.