High Court

Legal Reasoning

{1} 825-05 CRIAPEALIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.825 OF 2005Bhagwat S/o. Dnyanoba MoreAge: 21 years, Occu.: LabourR/o. Narayanwadi, Tq. Shirur (Kasar),District Beed. … Appellant(Orig. Accused No.1) Versus1. The State of Maharashtra Through Police Station at Chakalamba, Tq. Shirur (Kasar), District Beed.2. Mithu S/o Tukaram More, Age: 32 years, Occu.: Agri., R/o. Narayanwadi, Tq. Shirur (Kasar), District Beed. … Respondents (No.2 Orig. Complainant) ...…Ms. Sharda P. Chate, Advocate for AppellantMr. S.B. Narwade, APP for Respondent No.1 – StateMr. B.V. Thombre, Advocate for Respondent No.2...... CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 07 JANUARY, 2025 PRONOUNCED ON : 21 JANUARY, 2025 JUDGMENT :- 1.In this appeal, appellant/convict takes exception to judgmentand order dated 24.10.2005 passed by learned 3rd Ad-hoc AdditionalSessions Judge, Beed in Sessions Case No.67 of 2005 recording guiltof present appellant for offences punishable under Sections 452 and325 of the Penal Code (IPC) and Section 25(1) of Arms Act. {2} 825-05 CRIAPEALPROSECUTION CASE IN BRIEF 2.Present appellant and other three accused were charge-sheetedby Chaklamba Police Station on the premise that, on 23.02.2005,informant Mithu was sleeping in the house with his family members.In the backdrop of previous episode of murder of the father ofaccused/appellant, all four accused charge-sheeted in the presentcase, went armed with articles like sword, iron rod and stick.Accused/appellant assaulted informant Mithu as well as his bothminor children, causing them grievous injuries. On report ofinformant Mithu PW-11, crime was registered for offences punishableunder Sections 143, 147, 148, 452 read with Sections 149, 307 readwith Section 149 of the IPC and under Section 25(1) Arms Act, andafter investigation, they were chargeseeted and finally tried bylearned 3rd Adhoc Additional Sessions Judge Beed in Sessions CaseNo.67 of 2005.During the trial, prosecution adduced oral and documentaryevidence. Present appellant did not adduce any evidence and pleadedinnocence and false implication. On appreciation of availableevidence, learned Trial Court accepted the prosecution case as provedand after recording guilt of appellant/accused No.1 alone and rest ofthe accused were acquitted. {3} 825-05 CRIAPEALInstant appeal is filed in consequence of impugned judgmentand order of conviction of appellant/accused no.1.SUBMISSIONSOn behalf of appellant :3.Learned counsel for the appellant took this Court through theFIR as well as testimonies of prosecution witnesses and submittedthat, there is no independent witness. That, all witnesses are familymembers. That, there is previous enmity. That, testimonies ofprosecution witnesses are full of material omissions, contradictionsand variances. Learned counsel submitted that with such quality ofevidence, learned Trial Court ought not to have accepted theprosecution case as proved. She emphasizes that on the sameevidence, accused nos. 2 to 4 are acquitted. She takes exception tocorrectness and manner of appreciation of evidence at the hands oflearned Trial Court and prays to interfere by allowing the appeal. On behalf of State :4.Learned APP as well as learned counsel for respondentno.1/informant canvassing in support of judgment, pointed out thatrole of the present appellant has been crystallized. That, informantMithu himself is an eye witness coupled with injured witnesses {4} 825-05 CRIAPEALDeepak and Seema. That, they have also deposed that they beingassaulted by appellant/accused no.1 by means of sword. That,grievous injuries were inflicted, which is confirmed by the medicalexperts, who were also examined as witnesses. That, prosecutionversion has remained intact. Therefore, learned trial court hascorrectly appreciated the available evidence and committed no errorin accepting the case against present appellant, and hence, they prayto dismiss the appeal for want of merits. STATUS AND ROLE OF PROSECUTION WITNESSES5.In support of its case, prosecution has examined as many asfifteen witnesses. Their role and status and the sum and substance oftheir evidence can be summarized as under : PW1Khaja has acted as pancha to spot panchanama Exhibit 23.PW2Babasaheb is PW3Suresh is elder brother of informant. He deposed at Exhibit 28as under :“Mithu More is my elder brother. Mithu More has threedaughters and one son. On 23-2-2005, I alongwith my brotherMithu and his wife and parent have worked in the field. Aftertaking meals, I alongwith my parent and niece Urmila went toanother house for sleeping. My elder brother Mithu More and {5} 825-05 CRIAPEALhis wife and two daughters and one son were sleeping in hishouse. At about 10.30 p.m. I heard shouts, So I came to thehouse of my elder brother Mithu More. I had seen that mynephew Deepak More and niece Seema More have sustainedbleeding injury. Deepak More had sustained bleeding injury onright hand, right cheek. My niece Seema had sustained bleedinginjury on her both hands and forehead. One finger of bothhands of Seema were amputated. I had seen bleeding injury onthe left hand of another niece Kaveri. Mithu More has told methat accused No.1 Bhagwat has assaulted his children by sword.My brother Mithu More has caught hold accused No.1 Bhagwat,who was having a sword in his hand. I had seen accused 2 to 4and absconding accused Gorakh Pawan standing near the houseof my brother Mithu More. My brother Mithu More has handedover accused No.1 Bhagwat to me. After police had come on thespot, I handed over accused No.1 Bhagwat to them.I had sentinjured nephew and niece and my mother to civil hospital, Beedby jeep My statement was recorded by the police.”PW4 Surekha is wife of informant. At Exhibit 29, she deposed asunder :“On 23.2.2005 I alongwith my husband and parents in law andmy husband's younger brother Suresh have worked in the field.We returned to the house in the evening. After taking meals, myparent in law and my husband's younger brother Suresh went toanother house for sleeping. I alongwith my husband and twodaughters and a son were sleeping in our house. Since she goatswere crying, my husband woke-up. He had seen accused No.1standing as with his hands on the back. Accused No.1 asked myhusband as to how he was acquitted in the murder case. Whenaccused No.1 Bhagwat tried to run towards my husband MithuMore, and my husband ran away. Then accused No.1 went {6} 825-05 CRIAPEALinside my house and assaulted my children by sword. Mychildren were shouting. Therefore, we came towards our house.I had seen accused no.1 assaulting my son Deepak by sword onright cheek and right hand. Accused No.1 had also assaulted mydaughter Seema on her forehead and hands by sword. AccusedNo.1 had also assaulted my daughter Kaveri by sword on wrist.My husband Mithu More has caught hold accused No.1Bhagwat. In the meantime, My parents in law, my husband'syounger brother P.W.3 Suresh and others came running. Myhusband Mithu More has handed over accused No.1 in thecustody of his younger brother P.W.3 Suresh. Then we had takenour children to civil hospital Beed in a jeep.Incident hashappened at about 10.30 p.m. I had seen accused 2 to 4standing near my house. I know accused 1 to 4 present beforethe Court.”PW5 Dr. Vijayamala Shinde, was the Medial Officer at Civil HospitalBeed, who had given medical treatment to the informant, isexamined at Exhibit 31 wherein she deposed as under :“Since 13th December, 2004 I am working as Medical officer atCivil Hospital,Beed. On 24.2.2005 at 6.15 p.m. Mithu More,came to civil hospital. He has sustained injuries. I had examinedhim and given him medical treatment. I had issued certificate.Mithu More has sustained contused lacerated wound on rightpalm, 1/2 X 1/2 cm and lacerated wound on the right side ofabdomen 8X 1/2 cm. Both injuries were simple in nature, andthey might have been caused by hard and rough weapon.Exh.32 is medico legal certificate. It is in my handwriting. Itbears my signature.” {7} 825-05 CRIAPEALPW6 Vijay Bagul, Head Constable at Police Station Chakalmba,who registered the offence, is examined at Exhibit 33.PW7 Dr. Indrakumar Shinde, was the Medial Officer at Civil HospitalBeed, who had examined and given primary medical treatmentto the informant and other injured persons. At Exhibit 43, hedeposed as under :“Since last six years, I am working as Medical officer, CivilHospital, Beed. On 24.2.2005, at 12.00 night Deepak MithuMore, and Seema Mithu More and Kaveri Mithu More came tocivil hospital, Beed. They were injured. I had examined themand given them primary medical treatment and referred them toGovt. Medical College, and Hospital, Aurangabad for furthertreatment, Deepak Mithu More has sustained the followinginjuries:1. Incised wound above and below each right cheek size 5X 2 X 1 and 4 X 2 X 1 cm. It might have caused by sharpweapon. Nature of injury was simple.2. Incised wound right dorsum of palm. Size 3 X 2 X 1 cm.It was also caused by sharp weapon. Nature of injury wassimple.3. Compound fracture with C.L.W. on right first andsecond metacarpal, size 2 X 2 X 1 cm, caused by hard andblunt object. Nature of injury was grievous and therefore,he was referred to Govt. Medical College, Hospital,Aurangabad, after taking X-ray of skull. Accordingly. I hadissued medical certificate. It is in my handwriting. It bearsmy signature. Exh.44 is the medico legal certificate. {8} 825-05 CRIAPEAL2. I had examined Seema Mithu More at 12.10 a.m. onexamination, I found the following injuries:1. Incised wound on left frontal area size 3 X 2 X 1 cm.Itwas caused by sharp weapon. nature of injury was simple.2. Incised wound on right wrist dorsum size 2 X 2 X1 cm.It was also caused by sharp weapon, this injury was alsosimple in nature.3. Incised wound with fracture proximal phalanx on leftindex finger size 2 X 2 X 1 cm. It was caused by sharpweapon, nature of injury was grievous, and therefore, X-ray was taken and she was referred to Govt. MedicalCollege and Hospital, Aurangabad for further treatment. I have issued medico legal certificate. It is in my handwriting. Itbears my signature. Exh.45 is the medico legal certificate.3. On the same night, I had examined Kaveri d/o Mithu More at12.15 a.m. She has one incised wound with compound fractureon left forearm, It's size was 3 X 2 X 1 cm. It was caused bysharp weapon, nature of injury was grievous and therefore,X-ray was taken and thereafter she was referred to Govt.Medical College and Hospital, Aurangabad for furthertreatment. Accordingly, I have issued medical certificate. It is inmy handwriting. Exh.46 is medico legal certificate. It bears mysignature. PW8 Seema, i.e. daughter of informant, is examined at Exhibit 35wherein she deposed as under :“ I know all the accused present before the Court. Incident hastaken place on 23rd February, 2005. It was 8.00 p.m. At thattime, I was sleeping, alongwith my parent and brother andsister. I heard the noise of she-goats, and therefore, I woke-up. {9} 825-05 CRIAPEALMy father Mithu More went out side the house. My father wastalking with some body, Then, my mother went out side thehouse. Accused No.1 Bhagwat More entered my housealongwith the sword in his hand. Accused No.1 Bhagwat Morehas assaulted me on my both palms and forehead by sword. Isustained bleeding injuries on my forehead and fingers. AccusedNo.1 Bhagwat has also assaulted my brother Deepak on hisright cheek, right arm and right hand, by sword. He alsosustained bleeding injuries. Acoused No.1 Bhagwat has alsoassaulted my sister Kaveri by sword on her left hand. She alsosustained bleeding injury. We started shouting loudly, So, myparent came running inside the house. My father was caughthold accused No.1 Bhagwat alongwith sword. My fathersustained injuries on his hand and stomach. My father has givenaccused No.1 Bhagwat in the custody of uncle Suresh More.Then, my father has brought jeep from the village, and broughtus to civil hospital, Beed for treatment. After giving treatment. Ialongwith my brother and sister were referred to Govt. Medicalcollege and Hospital, Aurangabad for treatment on the next day.I was admitted in Govt. Medical college and Hospital,Aurangabad for five-six days. Police has recorded my statementwhile I was admitted in Govt. Medical College and Hospital, atAurangabad.PW9 Babasaheb, who is Panch witness to seizure panchanama.. AtExhibit 57 wherein he deposed as under :“ I alongwith Shaikh Yunus were present at Bus stand. P.S.I.Syed has called me and Sk. Yunus to the Police Station AccusedNo.1 Bhagwat has produced one sword and Full Pant and Shirthaving stains of blood and same were seized by the police in mypresence. Exh.58 is seizure memo and it bears my signature, ase well as signature of other panch Sk. Yunus. Witness is shown {10} 825-05 CRIAPEALseized sword article No.1, shirt article 2 and full pant article 3,which he identifies to be the same. Police had affixed slips onthe seized articles and I have signed on those slips. SwordArticle 1 was blood stain. Similarly on the shirt Article 2, therewere blood stains, I know accused No.1 who is in police custody.custody.”PW10 Pandurang, who is Panch witness to seizure panchanama. AtExhibit 59, wherein he deposed as under:“On 7.3.2005, I was called by the Police at Police out postUmapur. Police has also called one Khaja Pathan of Antarwali.Police has seized clothes of Children of Mithu More, in mypresence. Police have seized blood stained clothes of DeepakMore and Seema More in my presence. The said clothes wereblood stained. Exh. 24 is seizure memo and it bears mysignature, as well as signature of Khaja Pathan and P.S.I.Pansambal. Said clothes were produced by Mithu More. Witnessis shown seized clothes articles 4,5 and 6 and he identifies to bethe same. Slips bearing my signature and signature of otherpanch we affixed on articles 4 to 06.”PW11 Mithu, informant, who is deposed at Exhibit 60 as under:“I am residing at Narayanwadi alongwith my parent, brother,wife, three daughters and a son. Names of my daughters areUrmila, Seema and Kaveri.Name of my son is Deepak. I ownand possess 5 Acres of agricultural land at Narayanwadi.I owntwo houses at Narayanwadi.on 23-2-2005 I alongwith myparent, brother and wife have worked in the field and returnedto the house at 6.00 p.m.after taking meals, my parent, mydaughter Urmila and brother Suresh went to sleep in anotherhouse. I alongwith my wife and son Deepak and two daughtersnamely Seema and Kaveri went to sleep in the house at about {11} 825-05 CRIAPEAL9.00 p.m. Due to noise of she-goat, I woke- up and came outside the house by opening the door. I had seen accused andBhagwat standing with his hands behind the back. AccusedNo.1 Bhagwat asked that whether I was acquitted. I told inaffirmative. Hearing my conversation with accused No.1 mywife came out side the house, Immediately accused No.1 wentover me alongwith sword in his hand. I alongwith my wife wenttowards Maruti temple. So, accused No.1 Bhagwat entered inmy house and assaulted my children by sword. Due to shouts ofmy children. I alongwith my wife came running. I had caughthold accused No.1 Bhagwat alongwith sword while he wascoming out side my house. Due to scuffle between me andaccused No.1, I sustained injury of sword on my stomach andright hand. In the mean time, people assembled there. Mycousin brother P.W.2 Babasaheb More, Gopinath NarhariShingte, my mother Radhabal More,my father Tukaram, mybrother Suresh More and many others have come on the spot. Ihad seen accused 2 to 4 standing near my house, alongwithsticks in their hands. They ran away from the spot. I hadhanded over accused No.1 Bhagwat to my brother Suresh. I hadseen my son Deepak injuries on right cheek, right arm, and rightwrist. Accused No.1 Bhagwat has assaulted my daughter Seemaby sword onheher both hands, on forehead. One finger of righthand of my daughter Seema was amputaled.Accused No.1 hasalso assaulted my daughter Kaveri by sword on left hand. So, Iwent in the village for bringing jeep in order to admit mychildren in the hospital, Jeep was of Waman Satle. I alongwithmy injured daughters and son and my mother and wife went toCivil Hospital, Beed for treatment.Incident has taken place on23.2.2005 at 10.30 p.m.2) Police had come in Civil Hospital, Beed. My statement wasrecorded by police as I was injured. Exh.61 is my report. It bears {12} 825-05 CRIAPEALmy signature. I know all accused present before the Court. On7.3.2005 I have produced the blood stained clothes of mychildren to the police and the same were seized by the police inpresence of panchas. Witness is shown the seized clothes of hisdaughters and son- articles 4 to 6. He identifies it to be thesame.PW12 Jagannath has acted as pancha to spot panchanama at Exhibit65, who does not support the case of prosecution. PW13 Balabhau has acted as pancha to spot panchanama at Exhibit67, who also does not support the case of prosecution. PW14 Jsayyad Shaukatali PSI, Police Station Talwada, has recordedthe statement of injured.PW15Ghanasham Pansambal, PSI, is the Investigation Officer.ANALYSIS6.Evidence of PW-3 Suresh, PW-4 Surekha, PW-8 Seema and PW-11 Mithu is crucial. Their testimonies are reproduced in the aforesaidparagraphs. On placing testimonies of above witnesses injuxtaposition, it is revealed that they are consistent about occurrencetaking place on night of 23.02.2005. In the backdrop of previousepisode of murder of the father of accused/appellant Bhagwat, hecame armed with sword, he entered the house of Mithu and initially {13} 825-05 CRIAPEALassaulted his children namely, Deepak and Seema. Mithu had caughtappellant on the spot, and the entire occurrence was eye witnessedby informant Mithu, his wife Surekha and their injured children, i.e.Deepak and Seema. Injured Deepak and Seema are also examined byprosecution and they have categorically stated about assault made onthem by the present appellant by means of the sword. In spite ofthese witnesses subjected to extensive cross, their testimony aboutmounting assault and use of sword by appellant Bhagwat andcausing injuries to the injured, i.e. children and Mithu himself hasnot ben rendered doubtful and has remained unshaken. Rathermanner of cross to these witness clearly suggested that occurrence isaccepted. 7.PW-5 and PW-7, who are medical experts and to whom injuredwere referred for medical examination, are also examined. They havealso deposed about examining the injured and issuing injurycertificates. 8.There is a seizure conducted at the instance of the appellant inthe presence of panchas, who have corroborated the testimonyregarding a memo being given and the seizure of a sword beingeffected at his instance. Therefore, there is overwhelming evidence {14} 825-05 CRIAPEALabout the assault and it is got verified by the the other injured as wellas direct eye witnesses, who have apprehended the accused andhanded over to police. Independent witnesses like medical expertsconfirm injuries coupled with seizure. There is direct evidence.Therefore, required essential ingredients for the offence for whichappellant is charge-sheeted are borne out from the prosecutionevidence. SUMMATION9.Perused impugned judgment. Learned Trial Court has arrivedto just and proper conclusion on appreciation of evidence. This courtdo not find any infirmity in the manner of appreciation of theevidence at the hands of learned Trial Court. The view taken by thelearned Trial Court is the only possible view that could emerge on theappreciation of the available evidence. Therefore, the appeal beingdevoid of merits, I proceed to pass following order.ORDERThe criminal appeal is hereby dismissed. ( ABHAY S. WAGHWASE ) JUDGE S P Rane