1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL APPEAL APPEAL NO. 193 OF 1996 NO. 193 OF 1996 NO. 193 OF 1996 Sarjerao Sarjerao Sarjerao Ramchandra Ramchandra Ramchandra Bhakare .. Appellant Bhakare .. Appellant Bhakare .. Appellant vs vs vs State State State of Maharashtra of Maharashtra of Maharashtra ...... Respondent Respondent Respondent Mr.Ganesh Mr.Ganesh Mr.Ganesh Gole Gole Gole i.b Mr.A.P.Mundargi for i.b Mr.A.P.Mundargi for i.b Mr.A.P.Mundargi for Appellant Appellant Appellant Ms.V.R.Bhonsale Ms.V.R.Bhonsale Ms.V.R.Bhonsale A.P.P.for Respondent A.P.P.for Respondent A.P.P.for Respondent CORAM CORAM CORAM : : : SMT.RANJANA DESAI, J SMT.RANJANA DESAI, J SMT.RANJANA DESAI, J DATED DATED DATED : : : 12th September, 2007 12th September, 2007 12th September, 2007 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT 1.1.1. The appellant is original accused no.1 in The appellant is original accused no.1 in The appellant is original accused no.1 in Sessions Sessions Sessions case No.62 of 1991 which was tried in the case No.62 of 1991 which was tried in the case No.62 of 1991 which was tried in the Court Court Court of the Additional Sessions Judge, Kolhapur. of the Additional Sessions Judge, Kolhapur. of the Additional Sessions Judge, Kolhapur. The The The appellant was tried along with three other appellant was tried along with three other appellant was tried along with three other accused. accused. accused. The other accused are original accused The other accused are original accused The other accused are original accused nos. nos. nos. 2,3 and 4. For the sake of convenience, I 2,3 and 4. For the sake of convenience, I 2,3 and 4. For the sake of convenience, I shall shall shall refer to the appellant and the other accused refer to the appellant and the other accused refer to the appellant and the other accused as as as per their description in the trial. per their description in the trial. per their description in the trial. 2.2.2. The accused were charged for the offence The accused were charged for the offence The accused were charged for the offence punishable punishable punishable under section 307 read with section 34 under section 307 read with section 34 under section 307 read with section 34 the the the IPC in the alternative under section 307 IPC in the alternative under section 307 IPC in the alternative under section 307 simplicitor simplicitor simplicitor of the IPC. The accused were further of the IPC. The accused were further of the IPC. The accused were further charged charged charged under section 326 read with section 34 of under section 326 read with section 34 of under section 326 read with section 34 of the the the IPC in the alternative under section 326 the IPC in the alternative under section 326 the IPC in the alternative under section 326 the IPC IPC IPC simplicitor. simplicitor. simplicitor. 3.3.3. At the trial, the case of the prosecution was At the trial, the case of the prosecution was At the trial, the case of the prosecution was as as as under : under : under : 2 PW PW PW 4 Jagannath wanted to install a gobar gas 4 Jagannath wanted to install a gobar gas 4 Jagannath wanted to install a gobar gas plant plant plant behind behind behind the house of the accused. The accused the house of the accused. The accused the house of the accused. The accused objected objected objected to it. On 22nd December, 1990 at about 6 to it. On 22nd December, 1990 at about 6 to it. On 22nd December, 1990 at about 6 p.m. p.m. p.m. Jagannath and Rajaram returned to their Jagannath and Rajaram returned to their Jagannath and Rajaram returned to their village village village from Kodoli and were sitting near Benor from Kodoli and were sitting near Benor from Kodoli and were sitting near Benor office. office. office. Accused no.1 Sarjerao came there with a Accused no.1 Sarjerao came there with a Accused no.1 Sarjerao came there with a chopper,. chopper,. chopper,. Other accused also came there with axes. Other accused also came there with axes. Other accused also came there with axes. Accused Accused Accused no.1 Sarjerao dealt a blow with a chopper no.1 Sarjerao dealt a blow with a chopper no.1 Sarjerao dealt a blow with a chopper on on on the the the neck of Jagannath. Accused no.3 Rajaram and neck of Jagannath. Accused no.3 Rajaram and neck of Jagannath. Accused no.3 Rajaram and accused accused accused no.4 Arjun dealt axe blow on the head and no.4 Arjun dealt axe blow on the head and no.4 Arjun dealt axe blow on the head and arm arm arm of Jagannath respectively. Rajaram tried to of Jagannath respectively. Rajaram tried to of Jagannath respectively. Rajaram tried to intervene. intervene. intervene. Accused no.2 attacked with a stick on Accused no.2 attacked with a stick on Accused no.2 attacked with a stick on his his his left hand. The accused ran away. Jagannath left hand. The accused ran away. Jagannath left hand. The accused ran away. Jagannath and and and Rajaram were taken to the Rural Hospital, Rajaram were taken to the Rural Hospital, Rajaram were taken to the Rural Hospital, Kodoli. Kodoli. Kodoli. PW 6 Dr.Thorat examined them and referred PW 6 Dr.Thorat examined them and referred PW 6 Dr.Thorat examined them and referred them them them to CPR Hospital, Kolhapur. PW 7 Dr.Tiwale to CPR Hospital, Kolhapur. PW 7 Dr.Tiwale to CPR Hospital, Kolhapur. PW 7 Dr.Tiwale examined examined examined them. He found incised wounds on the them. He found incised wounds on the them. He found incised wounds on the persons persons persons of Jagannath and Rajaram. PW 5 ASI Mane of Jagannath and Rajaram. PW 5 ASI Mane of Jagannath and Rajaram. PW 5 ASI Mane received received received letter Exhibit 36 from the doctor. He letter Exhibit 36 from the doctor. He letter Exhibit 36 from the doctor. He went went went to Rural Hospital and recorded his report to Rural Hospital and recorded his report to Rural Hospital and recorded his report which which which is is is at Exhibit 24. He sent the report Exhibit at Exhibit 24. He sent the report Exhibit at Exhibit 24. He sent the report Exhibit 24 24 24 with his letter Exhibit 37 to Police Station, with his letter Exhibit 37 to Police Station, with his letter Exhibit 37 to Police Station, Kodoli Kodoli Kodoli through Laxmipuri police station. PSI I.B. through Laxmipuri police station. PSI I.B. through Laxmipuri police station. PSI I.B. Patil Patil Patil who was at that time incharge of Police who was at that time incharge of Police who was at that time incharge of Police Station, Station, Station, Kodoli came to Kolhapur. He collected Kodoli came to Kolhapur. He collected Kodoli came to Kolhapur. He collected report report report Exhibit 24 He registered offence at Exhibit 24 He registered offence at Exhibit 24 He registered offence at C.R.No.62 C.R.No.62 C.R.No.62 of 1991 at Police Station, Kodoli. The of 1991 at Police Station, Kodoli. The of 1991 at Police Station, Kodoli. The investigation investigation investigation was set into motion. After was set into motion. After was set into motion. After completing completing completing of the investigation, the accused came of the investigation, the accused came of the investigation, the accused came toto to be charged as aforesaid. be charged as aforesaid. be charged as aforesaid. 4.4.4. In support of its case, the prosecution In support of its case, the prosecution In support of its case, the prosecution 3 examined examined examined as many as 8 witnesses. The prosecution as many as 8 witnesses. The prosecution as many as 8 witnesses. The prosecution heavily heavily heavily relied on the evidence of PW 4 Jagannath relied on the evidence of PW 4 Jagannath relied on the evidence of PW 4 Jagannath the the the injured witness. The prosecution also relied injured witness. The prosecution also relied injured witness. The prosecution also relied on on on the evidence of PW 1 Rajaram, PW 6 Dr.Thorat and the evidence of PW 1 Rajaram, PW 6 Dr.Thorat and the evidence of PW 1 Rajaram, PW 6 Dr.Thorat and PW PW PW 7 Dr.Tiwale. The details of the investigation 7 Dr.Tiwale. The details of the investigation 7 Dr.Tiwale. The details of the investigation have have have been given by PW 8 PSI. I.B.Patil. been given by PW 8 PSI. I.B.Patil. been given by PW 8 PSI. I.B.Patil. 5.5.5. The accused denied the prosecution case. The accused denied the prosecution case. The accused denied the prosecution case. According According According to the accused, prosecution witnesses to the accused, prosecution witnesses to the accused, prosecution witnesses were were were the aggressors. According to the accused, the aggressors. According to the accused, the aggressors. According to the accused, they they they suspected suspected suspected that Jagannath had illicit relations that Jagannath had illicit relations that Jagannath had illicit relations with with with Hausabai wife of accused no.4 Arjun. They Hausabai wife of accused no.4 Arjun. They Hausabai wife of accused no.4 Arjun. They therefore, therefore, therefore, asked her not to go to his field for asked her not to go to his field for asked her not to go to his field for work. work. work. Therefore, she stopped going there. Four Therefore, she stopped going there. Four Therefore, she stopped going there. Four days days days prior to 22nd December, 1990 Jagannath asked prior to 22nd December, 1990 Jagannath asked prior to 22nd December, 1990 Jagannath asked Hausabai Hausabai Hausabai as to why she had gone to the field of as to why she had gone to the field of as to why she had gone to the field of others. others. others. He then dislodged the bundle of grass He then dislodged the bundle of grass He then dislodged the bundle of grass which which which was on her head and assaulted her. She was on her head and assaulted her. She was on her head and assaulted her. She narrated narrated narrated this to accused no.1 Sarjerao. Sarjerao this to accused no.1 Sarjerao. Sarjerao this to accused no.1 Sarjerao. Sarjerao went went went to the house of Jagannath and asked him as to to the house of Jagannath and asked him as to to the house of Jagannath and asked him as to why why why he did so. Jagannath abused him and asked him he did so. Jagannath abused him and asked him he did so. Jagannath abused him and asked him toto to go away. Sarjerao went away. At the time of go away. Sarjerao went away. At the time of go away. Sarjerao went away. At the time of the the the incident, Sarjerao saw Jagannath, Dada Jadhav incident, Sarjerao saw Jagannath, Dada Jadhav incident, Sarjerao saw Jagannath, Dada Jadhav sitting sitting sitting near Benor office. All of them assaulted near Benor office. All of them assaulted near Benor office. All of them assaulted him him him with choppers, axe and sticks. H with choppers, axe and sticks. H with choppers, axe and sticks. He fell down. fell down. fell down. He He He was taken to the hospital by his wife. was taken to the hospital by his wife. was taken to the hospital by his wife. 6.6.6. After perusing the evidence on record, the After perusing the evidence on record, the After perusing the evidence on record, the learned learned learned Judge was of the view that the prosecution Judge was of the view that the prosecution Judge was of the view that the prosecution had had had failed to prove its case as against accused failed to prove its case as against accused failed to prove its case as against accused nos. nos. nos. 2 to 4. He therefore, acquitted them of all 2 to 4. He therefore, acquitted them of all 2 to 4. He therefore, acquitted them of all the the the offences. The learned Sessions Judge however, offences. The learned Sessions Judge however, offences. The learned Sessions Judge however, 4 found found found accused no.1 Sarjerao guilty of the offence accused no.1 Sarjerao guilty of the offence accused no.1 Sarjerao guilty of the offence under under under section section section 326 IPC. He sentenced him to undergo 326 IPC. He sentenced him to undergo 326 IPC. He sentenced him to undergo R.I. R.I. R.I. for two years and to pay a fine of Rs.500/- for two years and to pay a fine of Rs.500/- for two years and to pay a fine of Rs.500/- inin in default to undergo R.I. for further period of default to undergo R.I. for further period of default to undergo R.I. for further period of four four four months. months. months. 7.7.7. Being aggrieved by this judgment and order, Being aggrieved by this judgment and order, Being aggrieved by this judgment and order, accused accused accused no.1 herein has preferred this appeal. no.1 herein has preferred this appeal. no.1 herein has preferred this appeal. 8.8.8. I have heard Mr.Ganesh Gole, learned counsel I have heard Mr.Ganesh Gole, learned counsel I have heard Mr.Ganesh Gole, learned counsel for for for ccused no.1 at some length. He submitted that ccused no.1 at some length. He submitted that ccused no.1 at some length. He submitted that the the the learned Sessions Judge erred in convicting the learned Sessions Judge erred in convicting the learned Sessions Judge erred in convicting the accused accused accused on the interested evidence of PW 1 and 4. on the interested evidence of PW 1 and 4. on the interested evidence of PW 1 and 4. He He He submitted that the evidence of PW 1 and 4 does submitted that the evidence of PW 1 and 4 does submitted that the evidence of PW 1 and 4 does not not not inspire confidence. It is replete with many inspire confidence. It is replete with many inspire confidence. It is replete with many contradictions contradictions contradictions and inconsistencies. These and inconsistencies. These and inconsistencies. These witnesses witnesses witnesses are are are not consistent as regards the spot of not consistent as regards the spot of not consistent as regards the spot of the the the incident and as to the manner in which the incident and as to the manner in which the incident and as to the manner in which the alleged alleged alleged assault was made. He drew my attention to assault was made. He drew my attention to assault was made. He drew my attention to the the the evidence of PW 7 Dr. Tiwale and pointed out evidence of PW 7 Dr. Tiwale and pointed out evidence of PW 7 Dr. Tiwale and pointed out that that that Dr.Tiwale has said that injury no.1 found on Dr.Tiwale has said that injury no.1 found on Dr.Tiwale has said that injury no.1 found on Jagannath Jagannath Jagannath cannot be caused if the injured was cannot be caused if the injured was cannot be caused if the injured was sitting sitting sitting facing east and the assailant had dealt facing east and the assailant had dealt facing east and the assailant had dealt blow blow blow by by by chopper from his back from right side. Mr. chopper from his back from right side. Mr. chopper from his back from right side. Mr. Gole Gole Gole submitted that therefore, the prosecution submitted that therefore, the prosecution submitted that therefore, the prosecution story story story that that that Jagannath was attacked with chopper from Jagannath was attacked with chopper from Jagannath was attacked with chopper from back back back is not truthful. The learned counsel is not truthful. The learned counsel is not truthful. The learned counsel submitted submitted submitted that PW 1 and PW 4 have shown ignorance that PW 1 and PW 4 have shown ignorance that PW 1 and PW 4 have shown ignorance about about about the the the injuries suffered by accused no.1. There injuries suffered by accused no.1. There injuries suffered by accused no.1. There isisis no dispute that accused no.1 had suffered no dispute that accused no.1 had suffered no dispute that accused no.1 had suffered grievous grievous grievous injuries. The prosecution has not injuries. The prosecution has not injuries. The prosecution has not explained explained explained the injuries sustained by the accused. the injuries sustained by the accused. the injuries sustained by the accused. 5 In In In this connection, he relied on the judgment of this connection, he relied on the judgment of this connection, he relied on the judgment of the the the Supreme Court in Lakshmi Singh vs State of Supreme Court in Lakshmi Singh vs State of Supreme Court in Lakshmi Singh vs State of Bihar Bihar Bihar AIR 1976 SC 2263. The learned counsel AIR 1976 SC 2263. The learned counsel AIR 1976 SC 2263. The learned counsel submitted submitted submitted that therefore, adverse inference needs that therefore, adverse inference needs that therefore, adverse inference needs toto to be drawn against the prosecution. The be drawn against the prosecution. The be drawn against the prosecution. The prosecution prosecution prosecution has suppressed the genesis of the case has suppressed the genesis of the case has suppressed the genesis of the case and and and therefore the accused should be acquitted. therefore the accused should be acquitted. therefore the accused should be acquitted. 9.9.9. Mr.Gole further submitted that the learned Mr.Gole further submitted that the learned Mr.Gole further submitted that the learned Sessions Sessions Sessions Judge has acquitted accused nos. 2 to 4. Judge has acquitted accused nos. 2 to 4. Judge has acquitted accused nos. 2 to 4. Therefore, Therefore, Therefore, the learned Sessions Judge has not the learned Sessions Judge has not the learned Sessions Judge has not accepted accepted accepted the the the evidence of prosecution witness so far evidence of prosecution witness so far evidence of prosecution witness so far as as as it pertains to accused nos.2 to 4. There is it pertains to accused nos.2 to 4. There is it pertains to accused nos.2 to 4. There is therefore, therefore, therefore, no guarantee that prosecution witnesses no guarantee that prosecution witnesses no guarantee that prosecution witnesses are are are telling the truth as far as their case against telling the truth as far as their case against telling the truth as far as their case against accused accused accused no.1 is concerned. Possibility of false no.1 is concerned. Possibility of false no.1 is concerned. Possibility of false implication implication implication cannot be ruled out. Learned counsel cannot be ruled out. Learned counsel cannot be ruled out. Learned counsel urged urged urged that therefore the impugned judgment and that therefore the impugned judgment and that therefore the impugned judgment and order order order needs to be quashed and set aside. needs to be quashed and set aside. needs to be quashed and set aside. 10. 10. 10. As against this, Ms.Bhosale, the learned As against this, Ms.Bhosale, the learned As against this, Ms.Bhosale, the learned A.P.P. A.P.P. A.P.P. submitted that no interference is necessary submitted that no interference is necessary submitted that no interference is necessary with with with the impugned judgment and order. She the impugned judgment and order. She the impugned judgment and order. She submitted submitted submitted that the prosecution case is borne out that the prosecution case is borne out that the prosecution case is borne out by by by the the the evidence of the injured witnesses evidence of the injured witnesses evidence of the injured witnesses. Evidence Evidence Evidence of of of PW 4 Jagannath is supported by the evidence of PW 4 Jagannath is supported by the evidence of PW 4 Jagannath is supported by the evidence of PW PW PW 1 Rajaram. It is also supported by the medical 1 Rajaram. It is also supported by the medical 1 Rajaram. It is also supported by the medical evidence. evidence. evidence. The learned Judge has rightly convicted The learned Judge has rightly convicted The learned Judge has rightly convicted the the the accused. She submitted that therefore the accused. She submitted that therefore the accused. She submitted that therefore the present present present appeal be dismissed. appeal be dismissed. appeal be dismissed. 11. 11. 11. It must be stated at the outset that that in It must be stated at the outset that that in It must be stated at the outset that that in 6 respect respect respect of of of the incident in question, a counter case the incident in question, a counter case the incident in question, a counter case was was was registered registered registered on the same day and PW 1 Rajaram, PW on the same day and PW 1 Rajaram, PW on the same day and PW 1 Rajaram, PW 4 Jagannath and one Dada Jadhav were tried in Jagannath and one Dada Jadhav were tried in Jagannath and one Dada Jadhav were tried in Sessions Sessions Sessions case No.146 of 1995 for the offence case No.146 of 1995 for the offence case No.146 of 1995 for the offence punishable punishable punishable under section 326 read with section 34 under section 326 read with section 34 under section 326 read with section 34 of of of the IPC. Jagannath More and Dada Jadhav were the IPC. Jagannath More and Dada Jadhav were the IPC. Jagannath More and Dada Jadhav were acquitted. acquitted. acquitted. But the Sessions Judge convicted But the Sessions Judge convicted But the Sessions Judge convicted accused accused accused no. no. no. 2 Rajaram under section 324 of the IPC 2 Rajaram under section 324 of the IPC 2 Rajaram under section 324 of the IPC and and and sentenced him to suffer R.I. for 2 years and sentenced him to suffer R.I. for 2 years and sentenced him to suffer R.I. for 2 years and toto to pay a fine of Rs.500/- in default to undergo pay a fine of Rs.500/- in default to undergo pay a fine of Rs.500/- in default to undergo R.I. R.I. R.I. for four months. The appeal preferred by for four months. The appeal preferred by for four months. The appeal preferred by Rajaram Rajaram Rajaram More has been allowed by this Court and More has been allowed by this Court and More has been allowed by this Court and Rajaram Rajaram Rajaram More has been acquitted by giving him the More has been acquitted by giving him the More has been acquitted by giving him the benefit benefit benefit of doubt. of doubt. of doubt. 12. 12. 12. PW 6 Dr.A.K.Thorat was at the relevant time PW 6 Dr.A.K.Thorat was at the relevant time PW 6 Dr.A.K.Thorat was at the relevant time attached attached attached to Rural Hospital, Kodoli. He has stated to Rural Hospital, Kodoli. He has stated to Rural Hospital, Kodoli. He has stated that that that on 22nd December, 1990 at about 7.30 p.m. he on 22nd December, 1990 at about 7.30 p.m. he on 22nd December, 1990 at about 7.30 p.m. he examined examined examined PW 4 Jagannath. He found the following PW 4 Jagannath. He found the following PW 4 Jagannath. He found the following injuries injuries injuries on Jagannath : on Jagannath : on Jagannath : 1.1.1. At the level of CO vertibra on At the level of CO vertibra on At the level of CO vertibra on posterior posterior posterior aspect of the neck of the size 13 aspect of the neck of the size 13 aspect of the neck of the size 13 x 2 x 3 cms deep starting from 2 cms to the 2 x 3 cms deep starting from 2 cms to the 2 x 3 cms deep starting from 2 cms to the right right right of