High Court

Legal Reasoning

{1} CRI APPEAL 104 OF 2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 104 OF 20051.Murlidhar S/o Dadarao GadhekarAge: 33 years, Occu.: Agriculture.2.Pralhad S/o Dadarao GadhekarAge: 27 years, Occu.: Agriculture.Both R/o Deolgaon – Taad, Tal. Bhokardan, Dist.Jalna.….Appellants (Ori. Accused Nos.1 and 2)Versus.State of Maharashtra….Respondent…..Advocate for Appellants : Mr. Sudarshan J. SalunkeAPP for Respondent : Mr.S.K.Shirse Advocate for Assist to PP : Mr.D.P.Palodkar ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 10 OCTOBER, 2024 PRONOUNCED ON : 17 OCTOBER, 2024 JUDGMENT :- 1. In this appeal, there is challenge to the judgment and order ofconviction passed by IInd Additional Sessions Judge, Jalna inSessions Case No.4 of 2002 dated 19-01-2005 holding presentappellants guilty for offence under Section 304 Part II read with 34 ofthe Indian Penal Code (IPC). {2} CRI APPEAL 104 OF 2005PROSECUTION CASE IN BRIEF 2. It is the case of prosecution in trial Court that on 27-09-2001deceased Dhondiba, husband of PW1 Shantabai, was plouging thefield. He was accompanied by his son and daughter. Accused nos.1and 2, who are nephews of deceased, and accused no.3 (wife ofaccused no.2) and accused no. 4 (wife of accused no.1), picked upquarrel on account of damage to ridge/bandh and beat Dhondiba.Ramkisan, son of informant, rushed and passed information toinformant, who also ran towards the field. Another son Namdeo ofinformant also called Appa Pungale, neighbour. Deceased was takento Dr.Rajput and later on shifted to Civil Hospital, Jalna, where hedied due to biliary Peritonitis with Septicemia with shock due toperforated gall bladder. PW1 Shantabai lodged report against allfour accused for offence under Sections 302, 504 read with 34 of theIPC.PW9 Nikkam (API) investigated the crime and after gatheringsufficient evidence, chargesheeted accused under the aforesaidoffences. Trial was conducted by learned IInd Additional Sessions Judge,Jalna vide Sessions Case No.4 of 2002, who hold that offence underSection 304 Part II of the IPC is made out and not offence under {3} CRI APPEAL 104 OF 2005Section 302 of the IPC and recorded conviction accordingly. Said judgment and order is under challenge by way of instantappeal. SUBMISSIONSOn behalf of appellants :3.Learned Counsel for the appellants submitted that prosecutionhas failed to prove the charges beyond reasonable doubt. Hesubmitted that independent witnesses have not seen the occurrenceand only family members i.e. sons and daughter of informant areexamined. That there was previous enmity on account of landdispute. Therefore, there is false implication. Learned Counselpointed out that witnesses are not consistent and are not lendingsupport to each other. He would strenuously submitted that therewere no injuries on the person of deceased Dhondiba. That evenAutopsy Doctor has ruled out death due to injuries noticed in columnno.17 of post mortem report. That there are allegations of being hitby stones, but there is no injury. He would submit that defence casein trial Court was that deceased Dhondiba fell from bullock cart andsuffered injury. The first Doctor to whom deceased was allegedlytaken and who treated Dhondiba deposed about the history of fallfrom bullock cart. He is examined as defence witness. Such Doctor {4} CRI APPEAL 104 OF 2005is not cross-examined and therefore, it is his submission thatprosecution has not challenged defence version. He submitted thatlaw is fairly settled that defence witness is at the par withprosecution witness, however, learned trial Court has not consideredsuch position. Thus, according to him, there is improper appreciationof evidence and so he prays to set aside the impugned judgment ofconviction. In the alternative, it is his submission that if the Court is notconvinced with above submissions, then as occurrence is of 2001 andmore than two decades have lapsed and there is normalcy in therelations, sentence already suffered be awarded to the appellants. In support of his submissions, he seeks reliance on followingrulings : (i) Mahindra v. Sajjan Galpha Rankhamb, AIR 2017 SC 2397.(ii) Mayur Panabhai Shah v. State of Gujarat, AIR 1983 SC 66.(iii) Dudh Nath Pandey v. State of Uttar Pradesh, (1981) 2 SCC 166.(iv) Thulia Kali v. The State of T.N., AIR 1973 SC 501. On behalf of State :4. Taking exception to the above submissions and refuting thearguments, learned APP submitted that there is direct eye witness {5} CRI APPEAL 104 OF 2005account. That very sons of deceased, who were present haveconsistently deposed that their father was beaten by accused. Thatwife was informed about the incident. That she had also seenaccused beating her husband. She has lodged report. That twoindependent witnesses have seen appellants beating deceased.Therefore, there is cogent, convincing and reliable evidence. Learnedtrial Court, therefore, has taken such evidence in account and hasrecorded guilt and hence, it is prayed that as there is no merit in theappeal and defence witness being a got up witness, his testimony hasto be discarded and judgment is required to be maintained andupheld. SUM AND SUBSTANCE OF EVIDENCE IN TRIAL COURT In support of its case, prosecution has examined as many asnine witnesses. 5.PW1 Shantabai W/o Dhondiba Gadhekar is informant. Shegave evidence that her husband sought back possession of land fromaccused. That they failed to give possession. That on the date ofincident, while her husband was ploughing the field, she was in thehouse and her son and daughter were accompanied her husband.That her son namely Ramkisan came and informed that accused {6} CRI APPEAL 104 OF 2005nos.1 to 4 were beating her husband, so she went there. She sawaccused beating her husband. She also saw Appa Pungale presentthere. One Namdeo Kolhe tried to intervene but accused personsrushed on him with stones. That her husband was taken to Dr.Rajputat Bhokardan and from there to Civil Hospital, Jalna, where he diedand therefore, she lodged report at Hasnabad Police Station. While under cross-examination this witness has admitted aboutprevious dispute. The answers given by her in cross-examination thather husband fell on the ground, suffered injuries, he was assaulted bymeans of stones, her husband suffered injury on entire body, therewas blood oozing, he being taken to hospital of Dr.Rajput and theanswer that Dadarao did not spend amount on treatment. Suchquestions, suggestions and answers clearly show that occurrence isnot disputed. Only omission brought in her cross-examination is that her sonNamdeo called Appa Pungale and accused nos.1 and 2 rushedtowards Namdeo Kolhe. 6.PW2 Namdeo Dhondiba Gadhekar, son of informant, in hisevidence in paragraph no.1 submitted that, {7} CRI APPEAL 104 OF 2005“01……..On the date of incident myself my brotherRamkisan, sister Janabai had gone to our field with my fatherat 8 A.M. We were doing sowing operation in our field. Atthat time accused no.1 to 4 were saying to my father that,we have demolished the bandh. Then my father and accusedno.1 to 4 have gone to see whether bandh is reallydemolished. Accused no.1 and 2 have forcibly carried myfather on the band and made him lie on the spot, thenaccused no.1 and 2 started beating my father with the help ofstones. In the meanwhile accused no.3 and 4 also visited tothe spot and assaulted my father with the help of fist andkicks. I have rushed to Appa Pungale and narrated himabout the incident. Appa Pungale then rushed to the spot,however accused continued to beat my father. After arrival ofAppa Pungale accused no.3 and 4 ran away from the spot. Atthat time accused no.2 pelted stones on my back. My brotherRamkisan had gone to our house to call my mother on thespot. 02. My mother came on the spot after receipt of messagefrom Ramkisan. Then the accused ran away from the spot ofincident. Then we have drink water to my father. Then wehave taken my father to Mahadeo Mandir from our village inthe bullock cart. Then I had gone to village Gahuli to mymaternal uncle. On the next day, my maternal uncle came toour house.” Relevant cross-examination in paragraph 3 shows that spot ofoccurrence is brought on record. Answers of this witness that hewent long distance due to stone pelting and the incident lasted for {8} CRI APPEAL 104 OF 2005half an hour also shows that there is no serious challenge to theincident. Omission brought is to the extent that accused nos.2 and 3questioned about demolition of bandh and they pelted stone on hisback and so he went to village to give message to his uncle and thatDhondiba was not in a position to talk. Such manner of cross-examination also categorically shows that incident is not seriouslychallenged. 7.PW3 Appa Sampat Pungale stated that he knew deceased aswell as accused. According to him, incident took place three yearsback. That he was present in the field. That Namdeo came to callhim and informed that accused nos.1 and 2 are beating his father, sohe visited the spot and intervened in the matter. He also gaveDhondiba water and also made him sat in the bullock cart.This witness answered in cross-examination that Dhondiba wasbeaten in standing cotton crop and that he himself was present at thespot for five minutes and he noticed abrasion on three parts ofDhondiba. He denied that Dhondiba was in position to speak.Omission is brought to that extent in para 3. Rest is all denial. {9} CRI APPEAL 104 OF 20058.PW4 Namdeo Laxman Kolhe stated that incident took placethree years back while he was going to Bazar at Kedarkheda. Hesaw accused nos.1 to 4 beating Dhondiba in his field. He tried tointervene, but accused no.2 threatened him, so he proceeded aheadto the Bazar. While in cross-examination this witness stated that incidenttook place at 01 to 01.30 p.m. He answered that due to threat byaccused no.2 he moved 30 feet away from spot and for the saidreason he did not intervene. Omission is brought regarding he intervening in the matter. 9.PW5 Ramkisan Dhondiba Gadhekar deposed that he waspresent in the field alongwith his father, brother Namdeo and sisterJanabai. That accused nos.1 and 2 beat his father while sowingoperation was going on. That accused nos.1 and 2 forcibly took hisfather to another cotton field and assaulted with the help of stones.So he ran home to call his mother and when they came back, theysaw Appa lifting his father and keeping in the bullock cart. That hisfather was taken to hospital but he died while undergoing treatment.Child witness is subjected to lengthy cross-examination whichcommences from paragraph 3 wherein he answered that his father {10} CRI APPEAL 104 OF 2005was forcibly taken by accused nos.1 and 2 from one spot to anotherspot and he suffered injuries on elbow and knee. He is unable to giveexact location of injuries suffered by his father. He answered that hewent at around 01:00 p.m. towards his house and returned back tothe spot. 10.PW6 Ankush Sarjerao Shelke is pancha to memorandum ofdisclosure and recovery of exh.52 and 53 at the instance of accusedno.2.In examination-in-chief, he spoke about memorandum ofdisclosure given by accused no.2 regarding producing stones andsame being seized vide panchanama exh.53. While under cross-examination he stated that at the time ofdisclosure by accused no.2, other accused were present at the PoliceStation and enquiry was also made with them and they had disclosedabout stones concealed in Maize crop, but they did not give Gutnumber of the land. 11.PW7 Jagdish Ramraj Mishra is Head Constable, who drewMLC, prepared inquest and referred body for post mortem. 12.PW8 Dr.Ravindra Tukaram Guthe is Autopsy Surgeon, whoconducted post mortem and issued cause of death. {11} CRI APPEAL 104 OF 200513.PW9 Arun Dhamodhar Nikkam is the Investigating Officer, whocarried out and completed investigation and chargesheeted accused. 14.Defence has also adduced evidence of one witness. DW1 Dr.Kapurchand Nandram Rajput gave evidence that on27-09-2001 injured Dhondiba was brought by his wife with injuriesdue to fall on ground from bullock cart. That said history was givenby wife of injured and his companion. He examined and noticedsuperficial injuries. He gave treatment and referred patient to RuralHospital, Bhokardan. ANALYSIS AND APPRECIATION OF ABOVE EVIDENCE15.Here on complete and careful appreciation of evidence ofinformant PW1 Shantabai, wife of Dhondiba and their childrennamely Namdeo PW2 and Ramkisan PW5, it is noticed that they allare consistent that on that day Dhondiba had been to the field foragricultural work, he was accompanied by his sons Namdeo andRamkisan and daughter. Namdeo and Ramkisan they both areconsistent about dispute being raised and assault being mounted byaccused. PW2 Namdeo rushed to inform informant and she cameand she too marked presence of accused and her husband lying downand being beaten. PW5 Ramkisan, another son rushed to inform {12} CRI APPEAL 104 OF 2005Appa and Appa is examined as PW3. This witness PW3 Appa isindependent witness, who knew both informant and deceasedDhondiba. He has stated that PW2 Namdeo informed him aboutaccused nos.1 and 2 beating his father. He also names accused nos.1and 2 to be present at the spot. PW4 Namdeo Laxman Kolhe, apasserby also an independent witness testified about accused nos.1 to4 beating Dhondiba in the field and when he tried to intervene,accused no.2 threatened him. PW5 Ramkisan deposed about accusednos.1 and 2 taking his father towards the cotton field and beingbeaten and when he returned back with his mother, that timeaccused nos.3 and 4 hiding themselves in the crop. PW2 Namdeospecifically stated that his father was beaten by means of stones. Allwitnesses including two independent witnesses PW3 Appa and PW4Namdeo Kolhe examined by prosecution are marking presence of allaccused. The answers given by them in cross-examination reproducedabove clearly show that incident has not been seriously challenged,rather the manner of questioning and suggestions clearly show thatoccurrence is admitted and rather got confirmed. PW8 Dr.Guthe,Autopsy Surgeon, in his evidence at exh.58, described nature and siteof injuries, which according to him, are ante mortem in nature. {13} CRI APPEAL 104 OF 2005Hence, ocular account finds support from medical evidence. 16.PW8 Dr.Guthe, Autopsy Surgeon attributed death due tobiliary peritonitis with septicemia with shock due to perforated gallbladder. He has denied probable cause of death due to injuriesnoticed and noted in column no.17. Therefore, here incident seemsto have taken place due to previous dispute and all of a sudden.There are allegations of beating by means of stones. Therefore,incident has erupted all of a sudden and as such intention to do awaywas apparently not there. There is no injury on vital parts also.Therefore, offence of 304 Part II i.e. culpable homicide notamounting to murder gets attracted and not offence under Section302 for which appellants were made to face charge. 17.Learned Counsel for appellants specifically pointed out thatthere is false implication. That informant herself had reported DW1Dr.Rajput, the first medical expert to whom Dhondiba was taken to,about Dhondiba falling from bullock cart and suffering injury.Learned Counsel emphasized that his testimony has not beenappreciated by learned trial Judge and in view of above referredrulings he seeks equal treatment to defence witness whileappreciating evidence. That here DW1 Dr.Rajput has not at all being {14} CRI APPEAL 104 OF 2005cross-examined by prosecution.It is true that this witness in evidence at exh.68 did testifyabout Dhondiba being brought to his dispensary on 27-09-2001 onhistory of injury due to fall from bullock cart. It is equally true aspointed out that, learned APP in trial Court declined to cross-examinethis witness. However, as pointed out by learned APP, PW8 Dr.Rajputhaving at that point of time worked as Medical Officer in PHC, heought to have maintained medical papers and ought to haveproduced case papers or medical papers about above history beingreported. Such papers are not brought on record. Here there is ocularaccount, which has remained virtually undisturbed and unshakenand therefore, for above reasons, only on the strength of testimony ofDW1 Dr.Rajput, other clinching evidence cannot get eclipsed orovershadowed. 18.Learned Counsel for appellants has submitted that if this courtis not convinced with the above submission advanced by him, thenconsidering occurrence to be almost two decades old and sword ofconviction hanging over on appellants’ head for long, they be let offby awarding sentence already suffered. 19.Gave a careful thought to the above alternative submission. {15} CRI APPEAL 104 OF 2005Here it transpires that incident had though erupted all of a sudden, itwas 4 against 1 i.e. deceased alone given beating by four accusedpersons. Occurrence is watched by children of deceased, who wereaccompanied him to the field. Independent witness speaks aboutcondition of deceased. Even PW8 Doctor has noticed that injuriesnoted in column no.17 would not result into death, but death is saidto be due to “biliary Peritonitis with Septicemia with shock due toperforated gall bladder”. Therefore, there is perforation. Occurrenceof assault has taken place on 27-09-2001. Death has taken place on28-09-2001. It has not come on record that deceased suffered fromany previous ailment or had any comorbidity. Therefore, offence isdefinitely of Section 304 Part II i.e. culpable homicide not amountingto murder. Learned trial Judge has awarded sentence of rigorousimprisonment for two years each. It is true that more than twodecades have lapsed since the incident. Therefore, sword ofconviction is looming large over appellants’ head for more than twodecades. Considering the background in which incident took place,and the above discussed facts, this Court is not inclined to bringdown the sentence to already undergone, but quantum of sentencedeserves to be reduced. Accordingly, I proceed to pass followingorder. {16} CRI APPEAL 104 OF 2005ORDERI.The conviction awarded to appellant nos.(1)Murlidhar s/o Dadarao Gadhekar and (2) Pralhad s/oDadarao Gadhekar, by the IInd Additional Sessions Judge,Jalna in Sessions Case No.4 of 2002 for offence punishableunder Section 304 Part II of the Indian Penal Code on19-01-2005 is hereby maintained and kept intact.However, the sentence is modified and reduced and insteadof rigorous imprisonment of two years each, they aresentenced to suffer rigorous imprisonment for a period ofsix (06) months each. II. There is no change in the fine amount as well as indefault sentence.III. It is clarified that rest of the operative order passedby the trial Court is maintained. IV.Set off as provided under Section 428 of the Code of Criminal Procedure, if entitled to, be given to the appellants.V. The appeal is disposed of in the above terms. ( ABHAY S. WAGHWASE ) JUDGE SPT