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. 138 OF 1996 NO. 138 OF 1996 NO. 138 OF 1996 Rajaram Rajaram Rajaram Hari Nandurkar Hari Nandurkar Hari Nandurkar ...... Appellant Appellant Appellant vs vs vs State State State of Maharashtra .. of Maharashtra .. of Maharashtra .. Respondent Respondent Respondent Mr.X.A.Sakhare, Mr.X.A.Sakhare, Mr.X.A.Sakhare, Advocate (appointed) for Advocate (appointed) for Advocate (appointed) for Appellant Appellant Appellant Ms.V.R.Bhosale, Ms.V.R.Bhosale, Ms.V.R.Bhosale, A.P.P.for A.P.P.for A.P.P.for Respondent Respondent Respondent CORAM CORAM CORAM : : : SMT.RANJANA P.DESAI, J SMT.RANJANA P.DESAI, J SMT.RANJANA P.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.2 in The appellant is original accused no.2 in The appellant is original accused no.2 in Sessions Sessions Sessions Case No.146 of 1995. He was tried Case No.146 of 1995. He was tried Case No.146 of 1995. He was tried alongwith alongwith alongwith original accused nos. 1 and 3 for original accused nos. 1 and 3 for original accused nos. 1 and 3 for offences offences offences punishable under section 326, read with punishable under section 326, read with punishable under section 326, read with section section section 34 of the Indian Penal Code. For the sake 34 of the Indian Penal Code. For the sake 34 of the Indian Penal Code. For the sake of of of convenience, I shall refer to the accused as per convenience, I shall refer to the accused as per convenience, I shall refer to the accused as per their their their status and description in trial. status and description in trial. status and description in trial. 2.2.2. By the impugned judgment dated 2nd March, 1996 By the impugned judgment dated 2nd March, 1996 By the impugned judgment dated 2nd March, 1996 the the the learned Additional Sessions Judge acquitted learned Additional Sessions Judge acquitted learned Additional Sessions Judge acquitted accused accused accused nos. 1 and 3 for the offences punishable nos. 1 and 3 for the offences punishable nos. 1 and 3 for the offences punishable under under under section 326 read with section 34 of IPC. He section 326 read with section 34 of IPC. He section 326 read with section 34 of IPC. He however, however, however, convicted accused no.2 for offence under convicted accused no.2 for offence under convicted accused no.2 for offence under section section section 324 of IPC and sentenced him to under go 324 of IPC and sentenced him to under go 324 of IPC and sentenced him to under go R.I. R.I. R.I. for one year and to pay a fine of Rs.500/- in for one year and to pay a fine of Rs.500/- in for one year and to pay a fine of Rs.500/- in default default default to to to undergo further R.I.for 4 months. Being undergo further R.I.for 4 months. Being undergo further R.I.for 4 months. Being aggrieved aggrieved aggrieved by the said judgment and order, accused by the said judgment and order, accused by the said judgment and order, accused no.2 no.2 no.2 has preferred the instant appeal. has preferred the instant appeal. has preferred the instant appeal. 2 3.3.3. The prosecution story as unfolded by PW 3 The prosecution story as unfolded by PW 3 The prosecution story as unfolded by PW 3 Sarjerao Sarjerao Sarjerao is that Arjun Rangrao and Shivaji are his is that Arjun Rangrao and Shivaji are his is that Arjun Rangrao and Shivaji are his brothers. brothers. brothers. He knows all the accused. Accused no.2 He knows all the accused. Accused no.2 He knows all the accused. Accused no.2 isisis the brother in law of accused no.1 Jagannath. the brother in law of accused no.1 Jagannath. the brother in law of accused no.1 Jagannath. Accused Accused Accused no.3 Dada @ Rajaram is son of accused no.3 Dada @ Rajaram is son of accused no.3 Dada @ Rajaram is son of accused no.1’s no.1’s no.1’s wife’s sister. PW 4 Hausabai is wife of wife’s sister. PW 4 Hausabai is wife of wife’s sister. PW 4 Hausabai is wife of Arjun. Arjun. Arjun. 4.4.4. The incident in question took place on 22nd The incident in question took place on 22nd The incident in question took place on 22nd November, November, November, 1990. About 8 to 10 days prior to the 1990. About 8 to 10 days prior to the 1990. About 8 to 10 days prior to the incident incident incident in question, Hausabai had gone for in question, Hausabai had gone for in question, Hausabai had gone for agricultural agricultural agricultural work in the field of one Raghunath. work in the field of one Raghunath. work in the field of one Raghunath. While While While she she she was returning home with a bundle of grass was returning home with a bundle of grass was returning home with a bundle of grass on on on her head, accused no.1 dislodged the bundle of her head, accused no.1 dislodged the bundle of her head, accused no.1 dislodged the bundle of grass grass grass which she was carrying. He abused and which she was carrying. He abused and which she was carrying. He abused and assaulted assaulted assaulted her. He asked her why she did not come her. He asked her why she did not come her. He asked her why she did not come toto to his field for work. According to PW 3 Sarjerao his field for work. According to PW 3 Sarjerao his field for work. According to PW 3 Sarjerao this this this was was was disclosed to him by Hausabai. On the same disclosed to him by Hausabai. On the same disclosed to him by Hausabai. On the same day, day, day, he went to the house of Jagannath and asked he went to the house of Jagannath and asked he went to the house of Jagannath and asked why why why he he he had assaulted Hausabai. Accused no.1 abused had assaulted Hausabai. Accused no.1 abused had assaulted Hausabai. Accused no.1 abused him. him. him. PW 3 Sarjerao then went home. On 22nd PW 3 Sarjerao then went home. On 22nd PW 3 Sarjerao then went home. On 22nd December, December, December, 1990 at about 6.30 p.m. he was sitting 1990 at about 6.30 p.m. he was sitting 1990 at about 6.30 p.m. he was sitting near near near Benor office. It was a weekly market day. Benor office. It was a weekly market day. Benor office. It was a weekly market day. Accused Accused Accused no.1 Jagannath and accused no.2 Rajaram no.1 Jagannath and accused no.2 Rajaram no.1 Jagannath and accused no.2 Rajaram were were were sitting on the steps of Benor office. He was sitting on the steps of Benor office. He was sitting on the steps of Benor office. He was sitting sitting sitting at a short distance from there. He asked at a short distance from there. He asked at a short distance from there. He asked them them them why there should be quarrel between the two. why there should be quarrel between the two. why there should be quarrel between the two. He He He expressed that it was not proper to have any expressed that it was not proper to have any expressed that it was not proper to have any quarrel. quarrel. quarrel. There was exchange of words between the There was exchange of words between the There was exchange of words between the two two two sides. Accused no.2 Rajaram stood up, went at sides. Accused no.2 Rajaram stood up, went at sides. Accused no.2 Rajaram stood up, went at the the the back of PW 1 Sarjerao and attacked him with a back of PW 1 Sarjerao and attacked him with a back of PW 1 Sarjerao and attacked him with a 3 chopper chopper chopper on his back. Accused no.1 had axe inhis on his back. Accused no.1 had axe inhis on his back. Accused no.1 had axe inhis hand. hand. hand. Acused no.3 had a stick and accused Krishna Acused no.3 had a stick and accused Krishna Acused no.3 had a stick and accused Krishna also also also had a stick. Accused no.1 Jagannath dealt an had a stick. Accused no.1 Jagannath dealt an had a stick. Accused no.1 Jagannath dealt an axe axe axe blow on his head. Accused no.3 Dada dealt a blow on his head. Accused no.3 Dada dealt a blow on his head. Accused no.3 Dada dealt a stick stick stick blow on his ear and accused Krishna dealt a blow on his ear and accused Krishna dealt a blow on his ear and accused Krishna dealt a stick stick stick blow on his abdomen. He raised a cry. PW1 blow on his abdomen. He raised a cry. PW1 blow on his abdomen. He raised a cry. PW1 intervened intervened intervened and rescued him. The accused ran away. and rescued him. The accused ran away. and rescued him. The accused ran away. PW PW PW 3 Sarjerao became unconscious. He regained 3 Sarjerao became unconscious. He regained 3 Sarjerao became unconscious. He regained consciousness consciousness consciousness in in in C.P.R.Hospital, Kolhapur. He came C.P.R.Hospital, Kolhapur. He came C.P.R.Hospital, Kolhapur. He came toto to know that he was first taken to hosiptal at know that he was first taken to hosiptal at know that he was first taken to hosiptal at Kodoli. Kodoli. Kodoli. In the hospital his FIR was recorded. It In the hospital his FIR was recorded. It In the hospital his FIR was recorded. It isisis at Exhibit 15. He was then taken to Mary at Exhibit 15. He was then taken to Mary at Exhibit 15. He was then taken to Mary Wanless Wanless Wanless Hospital, Kolhapur and treated there. He Hospital, Kolhapur and treated there. He Hospital, Kolhapur and treated there. He was was was a indoor patient for about 10 days. On the a indoor patient for about 10 days. On the a indoor patient for about 10 days. On the basis basis basis of the FIR. lodged by PW 3 Sarjerao of the FIR. lodged by PW 3 Sarjerao of the FIR. lodged by PW 3 Sarjerao investigation investigation investigation was set into motion. After was set into motion. After was set into motion. After completion completion completion 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. 5.5.5. In support of its case, the prosecution In support of its case, the prosecution In support of its case, the prosecution examined examined examined as many as 10 witnesses. The prosecution as many as 10 witnesses. The prosecution as many as 10 witnesses. The prosecution story story story basically rests on the evidence of PW 3 basically rests on the evidence of PW 3 basically rests on the evidence of PW 3 Sarjerao Sarjerao Sarjerao the the the injured witness. The medical evidence injured witness. The medical evidence injured witness. The medical evidence comprises comprises comprises evidence of PW 5 Dr.Tivade and PW 9 evidence of PW 5 Dr.Tivade and PW 9 evidence of PW 5 Dr.Tivade and PW 9 Dr.A.K.Thorat Dr.A.K.Thorat Dr.A.K.Thorat and medical certificates issued by and medical certificates issued by and medical certificates issued by them. them. them. The details of the investigation have been The details of the investigation have been The details of the investigation have been given given given by PW 8 PSI Ishwar Patil who was at the by PW 8 PSI Ishwar Patil who was at the by PW 8 PSI Ishwar Patil who was at the relevant relevant relevant time in-charge of Police Station, Kodoli. time in-charge of Police Station, Kodoli. time in-charge of Police Station, Kodoli. 6.6.6. The defence of the accused was one of denial. The defence of the accused was one of denial. The defence of the accused was one of denial. According According According to the accused, there was a dispute to the accused, there was a dispute to the accused, there was a dispute between between between accused no.1 Jagannath and P W 3 Sarjerao accused no.1 Jagannath and P W 3 Sarjerao accused no.1 Jagannath and P W 3 Sarjerao 4 and and and his brothers over the installation of a gobar his brothers over the installation of a gobar his brothers over the installation of a gobar gas gas gas plant. Sarjerao and his brother assaulted plant. Sarjerao and his brother assaulted plant. Sarjerao and his brother assaulted accused accused accused no. 1 Jagannath and accused no.2 Rajaram. no. 1 Jagannath and accused no.2 Rajaram. no. 1 Jagannath and accused no.2 Rajaram. Rajaram Rajaram Rajaram therefore lodged an FIR against them in therefore lodged an FIR against them in therefore lodged an FIR against them in order order order to create defence and a false case has been to create defence and a false case has been to create defence and a false case has been filed filed filed against them. against them. against them. 7.7.7. As stated hereinabove, the learned Sessions As stated hereinabove, the learned Sessions As stated hereinabove, the learned Sessions Judge Judge Judge acquitted acquitted acquitted accused nos. 1 and 3 and convicted accused nos. 1 and 3 and convicted accused nos. 1 and 3 and convicted accused accused accused no.2 for the offence under section 324 IPC no.2 for the offence under section 324 IPC no.2 for the offence under section 324 IPC and and and sentenced him to suffer R.I. for one year and sentenced him to suffer R.I. for one year and sentenced him to suffer R.I. for one year 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 a period of 4 months. for a period of 4 months. for a period of 4 months. Hence, this appeal Hence, this appeal Hence, this appeal 8.8.8. I have heard Mr.Sakhare the learned counsel I have heard Mr.Sakhare the learned counsel I have heard Mr.Sakhare the learned counsel appearing appearing appearing for for for the the the appellant-accused appellant-accused appellant-accused atatat considerable considerable considerable length. length. length. Mr.Sakhare submitted that the Mr.Sakhare submitted that the Mr.Sakhare submitted that the learned learned learned Judge has fallen into a grave error in Judge has fallen into a grave error in Judge has fallen into a grave error in convicting convicting convicting the the the accused in the absence of any cogent accused in the absence of any cogent accused in the absence of any cogent and and and credible evidence on record. Mr.Sakhare urged credible evidence on record. Mr.Sakhare urged credible evidence on record. Mr.Sakhare urged that that that in this case, the prosecution has failed to in this case, the prosecution has failed to in this case, the prosecution has failed to prove prove prove any motive. In fact, the learned Sessions any motive. In fact, the learned Sessions any motive. In fact, the learned Sessions Judge Judge Judge has categoricaly recorded that accused no.,2 has categoricaly recorded that accused no.,2 has categoricaly recorded that accused no.,2 had had had no motive to assault Sarjerao as he had no no motive to assault Sarjerao as he had no no motive to assault Sarjerao as he had no enmity enmity enmity with him. It was therefore wrong on the with him. It was therefore wrong on the with him. It was therefore wrong on the part part part of of of the learned Sessions Judge to convict him . the learned Sessions Judge to convict him . the learned Sessions Judge to convict him . The The The learned counsel further urged that it is learned counsel further urged that it is learned counsel further urged that it is alleged alleged alleged that the appellant used a chopper. The that the appellant used a chopper. The that the appellant used a chopper. The discovery discovery discovery of of of the chopper has not been proved as the the chopper has not been proved as the the chopper has not been proved as the panchas panchas panchas have turned hostile. PSI Patil has in his have turned hostile. PSI Patil has in his have turned hostile. PSI Patil has in his evidence evidence evidence stated that the said chopper was not stated that the said chopper was not stated that the said chopper was not 5 stained stained stained with blood. Besides, this chopper was not with blood. Besides, this chopper was not with blood. Besides, this chopper was not sent sent sent to to to the Chemical Analyser for analysis. In the the Chemical Analyser for analysis. In the the Chemical Analyser for analysis. In the circumstances, circumstances, circumstances, the allegation that accused no.2 the allegation that accused no.2 the allegation that accused no.2 used used used a chopper to attack Sarjerao is not proved. a chopper to attack Sarjerao is not proved. a chopper to attack Sarjerao is not proved. Mr.Sakhare Mr.Sakhare Mr.Sakhare further urged that the evidence on further urged that the evidence on further urged that the evidence on record record record indicates that it is Sarjerao who was the indicates that it is Sarjerao who was the indicates that it is Sarjerao who was the aggressor. aggressor. aggressor. He had a chopper in his hand. He had a chopper in his hand. He had a chopper in his hand. Mr.Sakhare Mr.Sakhare Mr.Sakhare pointed out that this fact has been pointed out that this fact has been pointed out that this fact has been noticed noticed noticed by the learned Sessions Judge. He by the learned Sessions Judge. He by the learned Sessions Judge. He submitted submitted submitted that it is also pertinent to note that that it is also pertinent to note that that it is also pertinent to note that accused accused accused no.2 no.2 no.2 was also injured in the said incident. was also injured in the said incident. was also injured in the said incident. There There There is therefore, ample evidence on record to is therefore, ample evidence on record to is therefore, ample evidence on record to indicate indicate indicate that at the most it can be said that that at the most it can be said that that at the most it can be said that accused accused accused no. 2 acted in exercise of his right of no. 2 acted in exercise of his right of no. 2 acted in exercise of his right of private private private defence. The learned counsel then urged defence. The learned counsel then urged defence. The learned counsel then urged that that that there is no consistency between the evidence there is no consistency between the evidence there is no consistency between the evidence of of of PW PW PW 3 Sarjerao Bhakare and PW 4 Hausabai Bhakare. 3 Sarjerao Bhakare and PW 4 Hausabai Bhakare. 3 Sarjerao Bhakare and PW 4 Hausabai Bhakare. This This This also makes the prosecution story inherently also makes the prosecution story inherently also makes the prosecution story inherently improbable. improbable. improbable. Learned counsel further submitted that Learned counsel further submitted that Learned counsel further submitted that on on on the the the same set of evidence two of the accused have same set of evidence two of the accused have same set of evidence two of the accused have been been been acquitted. There is therefore, no guarantee acquitted. There is therefore, no guarantee acquitted. There is therefore, no guarantee that that that the prosecution story as regards the the prosecution story as regards the the prosecution story as regards the involvement involvement involvement of the present appellant/ accused no.2 of the present appellant/ accused no.2 of the present appellant/ accused no.2 isisis truthful. He submitted that in the truthful. He submitted that in the truthful. He submitted that in the circumstances, circumstances, circumstances, conviction and sentence of the conviction and sentence of the conviction and sentence of the appellant/accused appellant/accused appellant/accused no.2 deserves to be set aside. no.2 deserves to be set aside. no.2 deserves to be set aside. 9.9.9. As against this, Ms.Bhosale, the learned As against this, Ms.Bhosale, the learned As against this, Ms.Bhosale, the learned A.P.P.submitted A.P.P.submitted A.P.P.submitted that that that the learned Sessions Judge has the learned Sessions Judge has the learned Sessions Judge has rightly rightly rightly placed placed placed reliance on the injured witness PW 3 reliance on the injured witness PW 3 reliance on the injured witness PW 3 Sarjerao Sarjerao Sarjerao Bhakare. PW 3 Sarjerao had no reason to Bhakare. PW 3 Sarjerao had no reason to Bhakare. PW 3 Sarjerao had no reason to falsely falsely falsely implicate innocent persons. PW 3 implicate innocent persons. PW 3 implicate innocent persons. PW 3 6 Sarjerao’s Sarjerao’s Sarjerao’s evidence evidence evidence is supported by the evidence of is supported by the evidence of is supported by the evidence of PW PW PW 4 Hausabai. In the circumstances, the learned 4 Hausabai. In the circumstances, the learned 4 Hausabai. In the circumstances, the learned A.P.P. A.P.P. A.P.P. urged that this Court may not interfere urged that this Court may not interfere urged that this Court may not interfere with with with the impugned judgment and order. She the impugned judgment and order. She the impugned judgment and order. She therefore, therefore, therefore, submitted that the appeal be dismissed. submitted that the appeal be dismissed. submitted that the appeal be dismissed. 10. 10. 10. Before dealing with the submissions advanced Before dealing with the submissions advanced Before dealing with the submissions advanced by by by the learned counsel Mr,.Sakhare, it must be the learned counsel Mr,.Sakhare, it must be the learned counsel Mr,.Sakhare, it must be stated stated stated that in respect of the same incident a that in respect of the same incident a that in respect of the same incident a counter counter counter case was registered at the instance of case was registered at the instance of case was registered at the instance of accused accused accused no.2 herein. In respect of the said no.2 herein. In respect of the said no.2 herein. In respect of the said complaint, complaint, complaint, PW 1 Sarjerao Bhakare and others were PW 1 Sarjerao Bhakare and others were PW 1 Sarjerao Bhakare and others were tried tried tried in Sessions case No.62 of 1991 and PW 1 in Sessions case No.62 of 1991 and PW 1 in Sessions case No.62 of 1991 and PW 1 Sarjerao Sarjerao Sarjerao was found guilty of the offence under was found guilty of the offence under was found guilty of the offence under section section section 326 IPC and sentenced to undergo R.I. for 326 IPC and sentenced to undergo R.I. for 326 IPC and sentenced to undergo R.I. for two two two years and to pay a fine of Rs.500/- in default years and to pay a fine of Rs.500/- in default years and to pay a fine of Rs.500/- in default toto to undergo RI for a further period of 4 months. undergo RI for a further period of 4 months. undergo RI for a further period of 4 months. 11. 11. 11. There can hardly be any dispute that on 22nd There can hardly be any dispute that on 22nd There can hardly be any dispute that on 22nd December, December, December, 1990 some incident did take place in 1990 some incident did take place in 1990 some incident did take place in which which which accused