High CourtsDivision Bench(2018) 02 BOM CK 0045

Nana s/o Shivram Kokare vs State of Maharashtra through PSO Police Station Morshi

Bombay High Court · Decided on 12 February 2018

HON’BLE JUDGES
Rohit B. Deo
RESULT
Partly Allowed
CASE NUMBER
529 of 2002

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Judgment

174 paragraphs · 1,764 words
1.

The appellants are aggrieved by the judgment and

order dated 09.09.2002 rendered by the Additional Sessions

Judge, Amravati in Sessions Case 93/1994, by and under which,

the appellants-accused are convicted for offence punishable under

Section 326 read with Section 34 of the Indian Penal Code ('' IPC ''

for short) and are sentenced to suffer rigorous imprisonment for

one year and to payment of fine of Rs.1000/-.

2.

Heard Shri D.M. Kale, the learned counsel for

appellants-accused and Shri Ashish Kadukar, the learned

Additional Public Prosecutor for the respondent-State.

3.

The prosecution case, as is unfolded during the trial,

is thus:

P.W.1 Bhimrao @ Bhiwaji Kokare faced trial on the

charge of having murdered the brother of accused Nana, he was

acquitted and the appeal is pending before this court. In view of

the intense enmity, accused Nana and his sons accused Dadarao

and Sahebrao assaulted Bhimrao on 13.01.1994 at 02:30 p.m.,

near the water reservoir at village Ambada. Accused Nana dealt an

axe blow and when P.W.1 Bhimrao fell down he was assaulted by

accused Dadarao and Sahebrao with sticks. Nasir Musalman and

Dharmu Dhole who were present at the reservoir intervened due

to which intervention the accused left the scene. P.W.1 Bhimrao

was taken to the Morshi Hospital by Dharmu Dhole, Raghoba

Kokare and Pandurang Kokare. The oral report was recorded by

the police at Morshi Hospital (Exh.42) on the basis of which

offence punishable under Section 324 read with Section 34 of IPC

was registered. Investigation ensued, statements of witnesses were

recorded, spot panchnama Exh.47 was drawn, an axe and sticks

were seized on 19.01.1994, and upon completion of the

investigation charge-sheet was submitted in the court of Judicial

Magistrate First Class, Morshi under Section 307 read with

Section 34 of the IPC, who committed the proceedings to the

Sessions Court.

The learned Sessions Judge framed charge (Exh.23)

under Section 307 read with Section 34 of IPC. The accused

abjured guilt and claimed to be tried. The defence is of total

denial and false implication.

4.

The prosecution examined as many as ten witnesses

to bring home the charge. P.W.1 Bhimrao @ Bhiwaji Kokare is the

injured, P.W.2 Raghoji Kokare is the brother of the injured, P.W.3

Dharmu Dhole is examined as an eye witness, P.W.4 Sahebrao

Mundare is the panch witness to the memorandum statement,

P.W.5 Dr. Baban Sable is the Medical Officer, Rural Hospital,

Morshi, P.W.6 Ramdas Thakre is the PSI, P.W.7 Haribhau Kokare

the panch witness to the seizure memo Exh.43 evidencing the

seizure of the clothes of the complainant, P.W.8 Mahadeo

Dhanade ASI the Investigating Officer, P.W.9 Dr. Sham Rathi, who

was then attached to the General Hospital, Amravati and P.W.10

Dr. Seema Sune, who was also attached to the General Hospital,

Amravati.

5.

P.W.3 Dharmu Dhole did not support the prosecution,

was declared hostile and cross examined on behalf of the

prosecution. His evidence does not take the case of the

prosecution any further. The only witness to the assault is P.W.1

the injured himself. P.W.4 Sahebrao Mundare and P.W.7

Haribhau Kokare the panch witnesses to the memorandum

statement and the seizure memo respectively did not support the

prosecution. The learned A.P.P. fairly does not dispute, that the

seizure of the axe and sticks is not proved. The prosecution is

relying substantially, if not entirely, on the evidence of the injured

P.W.1 Bhimrao Kokare and the corroborative medical evidence, to

prove the offence.

6.

Before I proceed to appreciate the testimony of the

injured witness, it would be apposite to consider the medical

evidence on record to determine the nature and extent of injury

suffered by P.W.1.

7.

P.W.5 Dr. Baban Sable examined P.W.1 Bhimrao

Kokare on 13.01.1994. He has proved the injury certificate

Exh.49. P.W.5 noticed following injuries on the person of P.W.1

Bhimrao Kokare:

1.

Lacerated wound on upper part of scalp of size 1" x 1/2" x bone deep, bleeding was there.

2.

Confused swelling on dorsal side of left forearm 4" x 3" vertical reddish in colour, just below elbow joint.

3.

Contused swelling on medial side of the right leg of size 4" x 4" irregular reddish colour.

Age of the injuries within 24 hours caused by hard and blunt object it wound heal within 10 days if no complications arises.

P.W.5 has deposed that the injured was referred to

the General Hospital, Amravati for radiological examination of left

forearm and right upper leg. In the cross-examination, P.W.5

admits that injury 1 cannot be caused by the blade side of the axe.

However, he denies the suggestion that injury 1 was simple in

nature.

P.W.9 Dr. Sham Rathi was then attached to the

General Hospital, Amravati. He states that P.W.1 was admitted in

General Hospital, Amravati in Ward 3 on 13.01.1994. P.W.1 was

shifted to Ward 15, of which Ward P.W.9 was in-charge,

on 18.01.1994 and P.W.1 was examined on 19.01.1994. P.W.9

states that he diagnosed undisplaced fracture of upper third right

tibia and undisplaced fracture to left olecranon. He states that he

applied plaster to the right leg and the left upper limb. P.W.1 was

discharged on 20.01.1994. P.W.9 has proved the x-ray plates

bearing numbers 572 and 573 (Exh.68) and (Exh.69).

P.W.10 Dr. Seema Sune, who was then attached to

the General Hospital, Amravati, has proved the bed head ticket

(Exh.71). She is not cross examined.

8.

The medical evidence reveals that the deceased

suffered three injuries. Injury 1 is not possible due to the blade

side of the axe, is the deposition. Injuries 2 and 3, which evidently

caused the fracture, are possible due to sticks, is the medical

evidence.

9.

The learned counsel for the accused and the learned

A.P.P. are in unison in submitting is that, other than the

corroborative medical evidence, the only evidence is that of the

injured P.W.1. The learned counsel for the accused submits that in

view of the intense enmity, the possibility of false implication is

not excluded. The injured P.W.1 was accused of having murdered

the brother of accused Nana and though acquitted, the appeal was

pending before the High Court. P.W.1 is falsified on material

aspects since the medical evidence rules out use of the blade side

of the axe in the assault, is the submission. The evidence of P.W.1

must be subjected to extremely close scrutiny since the only other

eye witness P.W.3 Dharmu Dhole did not support the prosecution,

is the further submission. Per contra, the learned A.P.P. would

submit that the testimony of the injured must be placed on a

higher pedestal than that of other witnesses. Enmity is a double

edged sword and may as well furnish a motive for the assault,

points out the learned A.P.P. The omission of P.W.1 to specifically

state that he was assaulted by the blunt side of the axe is not

suggestive of falsehood, is the submission.

10.

The pivotal issue, is whether the testimony of the

injured P.W.1 is reliable, credit worthy and confidence inspiring.

His deposition is broadly consistent with the contents of the First

Information Report, which is lodged with promptitude. P.W.1

states that at 02:30 p.m. on 13.01.1994 he went to the house of

Nasir Musalman to hire his bullock-cart. P.W.1 then came near the

water reservoir. He was assaulted by accused Nana with axe, he

fell down and thereafter was assaulted by accused Dadarao and

accused Sahebrao with sticks. The statement in the

examination-in-chief that accused 1 was instigating accused 2 and

3 to kill P.W.1, is brought on record as an omission. The evidence

is not shaken in the cross-examination. Nothing is elicited in the

cross-examination to dent the credibility of the testimony. The

conscious of this court is satisfied that the evidence of the injured

P.W.1, which is more than amply corroborated by the medical

evidence on record, is reliable and confidence inspiring and can be

the basis of conviction.

11.

All the accused are convicted under Section 326 with

the aid of Section 34 of the Indian Penal Code. The prelude to the

actual assault is blurred. The evidence of P.W.1 is when he was

standing near the water reservoir he was assaulted by the accused.

The statement in the examination-in-chief that P.W.1 instigated

P.W.2 and P.W.3 is an omission. It is difficult to record a finding,

with any degree of certainty, that the prosecution has established

that the accused shared a common intention to cause grievous

hurt. The individual act and role of the accused needs to be examined to determine the offence committed by the accused.

Concededly, the fracture suffered to the left forearm and the right

leg are due to the stick assault which is attributed to accused 2

and 3. The injury to the head, which appears to be due to the

blunt side of the axe, is not proved to be grievous hurt within the

meaning of Section 320 of the Indian Penal Code. In the teeth of

the evidence on record, the conviction of accused Nana under

Section 326 of IPC is unsustainable, instead accused deserves to

be convicted under Section 324 of IPC. In so far as accused

Dadarao and Sahebrao are concerned, whether a weapon is likely

to cause death, would essentially depend not only on the weapon

but the part of the body on which the blow is inflicted. In the

present case, I am not persuaded to hold that lathi is such a

weapon as would attract Section 326 of IPC. Accused Dadarao and

Sahebrao are liable to be convicted under Section 325 of IPC.

12.

In so far as the sentence is concerned, the incident

occurred 24 years ago. The motive was deep and intense hatred

for the injured P.W.1 who was accused of murdering the brother

of accused Nana. Accused Dadarao and Sahebrao, who are the

sons of accused Nana in every probability, could not restrain

themselves when their eyes fell on P.W.1 who had come to the

water reservoir along with Nasir Musalman. In view of the facts of

the case, I am inclined to grant the benefit of Section 4 of the

Probation of Offenders Act, 1958. Sentencing the accused to

prison may result in the accused degenerating into hardened

criminal. In the totality of the circumstances, the accused be

released on their entering into a bond, to the satisfaction of the

Sessions Judge, to appear and receive sentence when called upon

during period of one year and in the meanwhile to keep the peace

and be of good behaviour.

13.

The bail bonds of the accused shall stand discharged.

14.

The appeal is partly allowed.