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Judgment
The appellants in Criminal Appeal 616/2002 seek to assail the judgment and order dated 23.10.2002 passed by the 1 st Adhoc Additional Sessions Judge, Wardha in Sessions Trial 45/1998, by and under which, the appellants (hereinafter referred to as the accused) are convicted for offence punishable under Section 324 and 325 read with Section 34 of Indian Penal Code (" IPC " for short) and are sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs.500/- for offence punishable under Section 325 read with Section 34 of IPC and are further sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.500/- for offence punishable under Section 324 read with Section 34 of the IPC.
Criminal Appeal 78/2003 is preferred by the State which contends that the accused deserve to be convicted for offence punishable under Section 307 of the IPC.
The case of the prosecution as is unfolded during the trial is thus:
Accused 1 Raju Kapse, his father accused 2 Uttam Kapse and Uncle Sambha Kapse and the injured victim Pandurang Mohod are residents of the same locality in village Kutki, Tahsil Hinganghat, District Wardha. The families of the accused and the injured Pandurang were on inimical terms, in view of a dispute pertaining to agricultural land.
The incident occurred on 28.11.1997.
Pandurang Mohod had gone to Nagpur to repair an electric motor.
His elder brother Ramesh and younger brother Dilip and father Bhaurao had gone to the agricultural field. Injured Pandurang returned from Nagpur and was in the court-yard of his house attending to bullocks. In the interregnum, Bhaurao Mohod had returned from the agricultural field at 05:00 p.m. and Ramesh was back with bullock-cart loaded with cotton at 07:45 p.m.
Accused Raju and Uttam swooped on the court-yard of the injured and bodily lifted the injured Pandurang and brought him in the court-yard of their house between 08:00 p.m. to 08:30 p.m.
Accused Sambha was already present in the court-yard. The elder brother of injured Pandurang, Ramesh was informed by his wife Chhaya and sister-in-law Mira that Pandurang was taken by the accused to their court-yard. Ramesh followed the accused to their court-yard and requested them to let go Pandurang. The accused did not pay any heed and assaulted Pandurang by fists and kick blows and then by lathi. Accused Sambha fetched axe and sword from the house and handed the weapons to accused Raju and Uttam while retaining the lathi. The accused assaulted Pandurang Mohod on his head, shoulder, hands and thigh. Accused Raju who was yielding the sword inflicted severe blows on the ankle of both the legs of injured Pandurang and the injuries suffered were so serious that both the feet from below the ankle portion were attached to the body only with the skin. Chhaya Mohod who reached the scene tried to intervene, she was shoved and beaten by the accused and she sustained injuries. Dilip Mohod the other brother of the injured returned from the field and was asked by Ramesh, sister Mira and sister-in-law Chhaya to keep away from the scene of the incident. Ramesh Mohod along with his wife and father reached Police Station Wadner and reported the incident.
PSI Anil Kinge with staff and Ramesh Mohod and others reached the scene of the incident, Pandurang was referred to Rural Hospital, Wadner and was examined by Dr. Gowardhan Dudhe.
Pandurang was then referred to Mahatma Gandhi Institute of Medical Sciences, Sewagram for further treatment. The oral report lodged by Ramesh was reduced to writing and crime 100/1997 was registered in Police Station Wadner.
PSO Shri Anil Kinge prepared the spot panchnama, seized axe, lathi from the spot, a large stone stained with blood,
earth mixed with blood, plane earth, bones and red colour bangles were also seized from the spot. The house of accused Raju and Uttam was searched and a lungi and dhotar stained with blood were seized. A baniyan was seized from accused Uttam and another baniyan was seized from Sambha, which had blood stains.
The clothes of victim Pandurang were seized.
The accused were arrested on 29.11.1997.
Accused Raju and accused Uttam gave a memorandum of admission while in custody pursuant to which the disclosure statement a sword produced by Raju was seized from the heap of turati lying in the lane adjacent to the house of the accused Raju.
Pursuant to the disclosure statement made by accused Sambha lathi was seized from his cattle shed.
The dying declaration of injured Pandurang was recorded, the seized articles were sent for chemical analysis and the C.A. report was obtained. The culmination of investigation led to submission of the charge-sheet in the court of Judicial Magistrate First Class, Hinganghat, who committed the proceedings to the Sessions Court. The learned Sessions Judge
framed charge under Section 307 read with Section 34 of the IPC, the accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused was that the injured Pandurang and his family were not on good terms with the villagers since they were in the habit of harassing the villagers.
Injured Pandurang Mohod was under the influence of liquor, he picked up a quarrel with one Vitthal Kapse and was assaulted by the villagers, is the defence.
The prosecution examined as many as ten witnesses to bring whom the charge who are:
[i] P.W.1 Namdeo Nawghare at Ex.17 (a panch witness).
[ii] P.W.2 Sudhakar Ghodam at Ex.24 (a panch witness).
[iii] P.W.3 Ramesh Mohod at Ex.29 (elder brother of victim Pandurang.
[iv] Pandurang Mohod at Ex.32 (victim).
[v] P.W.5 Naresh Ghode at Ex.33 (a panch witness).
[vi] P.W.6 Narayan Meshram at Ex.34 (a panch).
[vii] P.W.7 Chhaya Mohod at Ex.40 (wife of P.W.3 Ramesh).
[viii] P.W.8 Dilip Mohod at Ex.41 (younger brother of victim).
[ix] P.W.9 Doctor Gowardhan Dudhe at Ex.57 and
[x] P.W.10 P.S.O. Shri Anil Kinge at Ex.63 of police station, Wadner (an investigating officer).
P.W.1 Namdeo Nawghare the panch to the memorandum statement under Section 27 of the Indian Evidence Act given by the accused Raju and accused Sambha did not support the prosecution. P.W.1 however, admits signing on the memorandum statements Exh.18 and Exh.20 given by accused Raju and accused Sambha respectively. P.W.2 Sudhakar Ghodam the panch to the seizure of the blood samples of the accused did not support the prosecution although he admitted his signature on the seizure panchnama Exh.25.
P.W.3 Ramesh Mohod, who is the informant has deposed that the incident took place at 08:00 p.m. or thereabout on 28.11.1997. P.W.3 states that when his sister Mira and wife alerted him that the accused Raju and Uttam had bodily lifted and carried the injured Pandurang to their court-yard he rushed towards the residence of accused Uttam. Accused Uttam, who was yielding an axe. Accused Sambha was armed with a lathi and accused Raju armed with a sword. The accused were assaulting Pandurang by fists and kick blows and lathi. Pandurang was assaulted on shoulder, thigh and hand by lathi. P.W.3 states that he was also dealt a lathi blow on the ear by accused Sambha which caused him to fall down. P.W.3 states that his wife and sister reached the spot and in the meanwhile, Dilip also came back from the agricultural field. P.W.3 states that he told Dilip that accused persons have forcibly taken Pandurang to their court-yard and are assaulting Pandurang. P.W.3 then states that he lodged the report at Police Station Wadner (Exh.30).
The statement that accused Uttam and accused Raju were armed with axe and sword respectively is brought on record as an omission. The statement that Pandurang was inflicted by lathi blow on shoulder and thigh is again an omission. It is brought on record that between the house of the accused and the family of the injured there is house of Madhaoji. P.W.3 denies the suggestion that there was darkness in the locality at the time and on the day of the incident. P.W.3 states that there was illumination of electric bulb. A suggestion is put to the witness that when he left the scene to lodge the report the injured Pandurang was lying in the Chhapri of accused Uttam. P.W.3 denies the suggestion and volunteers that the injured Pandurang was lying in the front court-yard of the house of the accused which was illuminated by an electric bulb. He further states that even in the court-yard of his house there was illumination of electric bulb. The witness admits the inimical relations between the family of the accused and the injured Pandurang. He denies the suggestion that the injured Pandurang abused one Vitthal Kapse, and the villagers who were enraged assaulted Pandurang.
P.W.4 Pandurang Mohod is the injured vicitim.
His deposition is that accused Raju and accused Uttam came to his court-yard, bodily lifted and forcibly took him to the front court-yard of their house. Accused Raju and Uttam started inflicting fists and kick blows and accused Sambha dealt lathi
blow. Accused Sambha fetched an axe and a sword from his house and handed over the axe to accused Uttam and the sword to accused Raju. Accused Uttam dealt an axe blow on the right leg, accused Sambha dealt lathi blow on the left hand and when he fell down on the ground accused Raju delivers successive sword blows on the legs, with the result that both the legs from below the ankle portion were amputated. The omissions which are brought out in the cross-examination are not significant enough to dent the credibility of the witness. Illustratively, the omission of the word "right" in referring to leg and the omission that Sambha dealt lathi blow, is not significant much less fatal. P.W.4 injured, who was the victim of a brutal and merciless assault, is not expected to narrate each and every detail pertaining to the nature of the assault or the role played by the individual accused.
The testimony of the injured Pandurang is confidence inspiring.
The injured Pandurang was suggested that he picked up a quarrel with one Vitthal Kapse under the influence of liquor and abused Vitthal Kapase in filthy words leading to the villagers physically assaulting the injured witness, which suggestion is denied.
P.W.5 Naresh Ghode proves the memorandum statement under Section 27 of the Indian Evidence Act given by accused Raju (Exh.18) and the seizure of the sword pursuant to the said statement. P.W.5 also proves the memorandum statement given by accused Sambha (Exh.20) and the seizure of the lathi from the house of the said accused. P.W.6 Narayan Meshram, was examined to prove the spot panchnama Exh.35 and the seizure of the weapons and other articles from the spot. P.W.7 Chhaya Ramesh Mohod states that accused Raju and Uttam bodily lifted and carried the injured Pandurang to the court-yard of their house and she alerted her husband Ramesh. She states that she and Mira followed her husband Ramesh to the court-yard of the house of the accused and witnessed the assault on the injured Pandurang.
The assault was by means of fists and kick blows and lathi. P.W.7 states that when she tried to intervene she was assaulted by fists and kick blows and the accused also assaulted Mira and her husband Ramesh. She states that she along with her husband Ramesh and Mira returned to their house, in the meanwhile Dilip reached home and was asked to stay away from the scene of occurrence. The cross-examination of P.W.7 would reveal that Chhaya did not witness the entire incident and states that it was Mira and Dilip who informed her that Sambha fetched the axe and sword from the house and handed them to accused Raju and Uttam who launched the brutal assault leading to the amputation
of portion of both feet of the injured Pandurang below the ankle.
However, the suggestion that there was darkness and that the police were equipped with torch is denied and the witness categorically states that the court-yard of the accused Uttam was illuminated by an electric bulb and that even the court-yard of the residence of the injured had an electric bulb which was on. P.W.8 Dilip Mohod claims to have witnessed the incident from an opening in the pithunda shrubs from the court-yard.
P.W.9 Dr. Gowardhan Dudhe who examined the injured Pandurang proves the medical report Exh.47 and states that injury 3, in ordinary course could cause the death of a person.
P.W.9 describes the injuries which he notice thus:
(1) Incised wound on head on right side above the ear having shape of plus (+) of the size of the vertical arm of plus shape was -3" x 1/2" x 1/2". The size of the horizontal arm of the plus shaped injury was of the size of 2" x 1/2" x 1/2" bleeding was present.
(2) Swelling of left arm having size 4" x 5". The underlying fracture of humerus is suspected, which will be confirmed after X-ray examination.
(3) Amputation of foot that means from the ankle and above the ankle joint of both legs. Only some tags of skin are attached. Bones are separated of
both the sides (Right and left). At that time patient was in shock. He is semi conscious and there was profuse bleeding. General condition was very poor. The patient was admitted in the hospital. The patient was referred to Mahatma Gandhi Institute Medical Sciences, Sewagram.
The above injury Nos.(1) and (3) might have been caused by hard and sharp object. The age of injuries was 3 to 4 hours of duration. The injury No.(2) might have been caused by hard and blunt object. As the X-ray machine in Wadner hospital was not in working condition the patient was referred to Sewagram hospital for further opinion and for X-ray examination.
The injury No.(1) would heal within 8 to 10 days and so far as the injuries Nos.(2) and (3) were concerned, the healing time may be sought from the Expert.
The identification mark of the patient that time was mole on floating rib on right side.
After cleaning of the wounds of the patient, three more injuries were noticed by me. Those injuries were examined and treated by me.
(4) Swelling on face on on left side below ear left side, having size 5" x 3 1/2". There may be haematoma underlying it.
(5) Incised wound on scalp just above fore-head in centre, which is vertical having size 2"x1/2"x1/2".
(6) Swelling on fore-head having size 1"x1" in centre part.
The injuries Nos.(4) and (6) might have been caused by hard and blunt object within 3 to 4
hours duration and it will heal within 7 to 8 days if no complication would arise. Injury No. (5) might have been caused by hard and sharp object within 3 to 4 hours duration and it will heal within 8 to 10 days if no complication would arise.
P.W.9 has also proved the injury report Exh.58 issued after examining the witness Chhaya and the injuries described are thus:
(1) Swelling on right fore-arm 3" away from the wrist of the size of 1" x 1".
(2) Abrasion on chest on right side 2?" below right clavical of the size 2 1/2" x 2" and skin deep. The injury No.(1) could have been caused by hard and blunt object and injury No.(2) could have been caused by hard and rough object within 18 to 24 hours duration and both injuries would heal within 2 to 3 days if no complications would arise.
The witness has denied the suggestion that in the absence of report from Radiologist and Orthopedic Surgeon it was not possible for him to opine that the injury suffered by Pandurang would have caused death in ordinary course.
P.W.10 Anil Kinge is the Investigating Officer. It is brought on record that he did not take entry in the station diary of the information received from Ramesh Mohod.
The defence has examined as many as three witnesses.
D.W.1 Manoj Choudhari attached to the office of Sub-Divisional Police Officer, Hinganghat was examined to prove that an application submitted by one Uttam Kapse was sent to Superintendent of Police, Wardha office for destruction as per
rule. D.W.1 proved the destruction report as regards the papers (Exh.76 and 77). D.W.2 Jayant Deshpande, then Clerk attached to the Superintendent of Police, Wardha was examined to prove that the application submitted by the villagers of village Kutki was destroyed in accordance with the rule. The evidence of both D.W.1 and D.W.2 is however, of little significance since it is not brought on record as to what was the nature of the complaint and against whom the complaint was preferred by the villagers.
D.W.3 Ramkrishna Pangul has deposed that the family members of the injured Pandurang are not law abiding and that on 14.02.1996 the villagers lodged a report against them which was scribed by D.W.3 Ramkrishna Pangul. Accused Raju was assaulted by the members of the Mohod family on 11.03.1996 and villagers were threatened by the family of the injured.
Shri Patwardhan, the learned counsel for the accused submits that the evidence on record is incompatible with the guilt of the accused. He would submit that the informant Ramesh has not seen, even if the evidence is to be taken at face value, the assault with axe and sword on injured Pandurang.
However, the fact that the First Information Report lodged by Ramesh makes a reference to the assault by axe and sword renders the prosecution version suspect. Ramesh claims to have left the scene of occurrence to go to the Police Station to lodge the report and he does not speak of accused Sambha having fetched the weapons from the house and having handed over the same to the accused Raju and accused Uttam. The learned counsel would further submit that P.W.7 Chhaya has also not witnessed the
assault with axe and sword and has deposed on the basis of information received from Ramesh. The evidence of P.W.8 Dilip is attacked by the learned counsel for the defence as absolutely unreliable. The evidence that Dilip witnessed the incident from 07:30 to 08:30 p.m. his own court-yard must be discarded as improbable and unreliable, is the submission. The spot panchnama makes no reference to source of light is the next submission. The defence that the injured Pandurang picked up a quarrel with one of the villagers under the influence of liquor and the enraged villagers assaulted the injured Pandurang is probablized on the touchstone of probabilities is the submission.
The first information report is not consistent with the deposition of the informant Ramesh P.W.3. Shri Patwardhan is justified in the submission that if the First Information Report Exh.31 was recorded immediately after P.W.3 went to the Police Station it could not have the contained the details of assault by axe and sword since P.W.3 Ramesh states that he left the scene of occurrence to go to the Police Station. P.W.3 Ramesh has deposed only as regards the assault by fists, kicks and lathi and has not spoken of he witnessing the assault by axe and sword.
The printed F.I.R. Exh.31 reveals that the offence was reported at 10:45 p.m. However, in the teeth of the implicitly reliable testimony of the injured, the infirmity pointed out by Shri R.M. Patwardhan would not per se dent the credibility of the prosecution case nor would the infirmity suggest false implication.
It is obvious, that when Ramesh rushed to the Police Station, the anxiety was to immediately bring the police on the scene to save his brother who had been physically carried by the accused to their court-yard. The First Information Report is obviously recorded after the incident since the report speaks of the assault by axe etc. which assault is obviously not witnessed by the informant Ramesh.
I have given my anxious consideration to the evidence on record in the light of the submissions canvassed and the reasons recorded by the learned Sessions Judge, and having done so, I am convinced that the offence punishable under section 326 of IPC is proved beyond reasonable doubt.
P.W.4 Pandurang Mohod is the victim of the brutal and gruesome assault due to which both legs from below the ankle had to be amputated. The court must always be mindful that ordinarily an injured person is not likely to inculpate the innocent and to exculpate the guilty. The injuries lend an assurance to the prosecution version about the presence on the scene of occurrence of the injured. The testimony of an injured, is therefore placed on a higher pedestal than that of other witnesses.
The testimony of injured P.W.4 is implicitly reliable, credit worthy and confidence inspiring. The testimony is not shaken in the cross-examination. No serious infirmity or embellishment is brought on record by the defence. It is true, as submitted by the learned counsel Shri R.M. Patwardhan that the other prosecution witnesses who are examined as eye witnesses have either not witnessed the assault or have witnessed only a part of the incident or prelude to the incident. P.W.3 Ramesh concededly left to lodge the report before P.W.4 was assaulted with axe and sword.
However, P.W.3 has witnessed the accused assaulting P.W.4 by fists, kick blows and lathi in the court-yard of the accused. It was then, that he left to seek police help. P.W.7 Chhaya Ramesh
Mohod is a witness to accused Raju and Uttam bodily lifting and carrying Pandurang to the court-yard of their house. It is P.W.7 who alerted her husband Ramesh P.W.3. She is also a witness to the assault by means of fists, kicks and lathi. She has obviously not witnessed the entire incident and her evidence as regards the axe and sword assault is hearsay. However, she can be believed to the extent that the accused Raju and Uttam physically carried P.W.4 Pandurang to their court-yard and launched an assault with fists, kicks and lathi. She has further deposed that the court-yard of the accused and that of the injured P.W.4 were both illuminated by an electric bulb. P.W.8 Dilip Mohod claims to have witnessed the entire incident from an opening in the pithunda shrubs from the court-yard of his house. His testimony is seriously attacked by the learned counsel for the accused who contends that having regard to the location of the houses of the complainant and the accused it is highly improbable that P.W.8 Dilip Mohod could have witnessed the incident much less in its entirety.
However, even if the evidence of P.W.8 Dilip is kept out of the consideration, the testimony of injured P.W.4, which is more than amply corroborated on the genesis of the incident and the initial assault by fists, kicks and lathi, by P.W.3 Ramesh and P.W.7 Chhaya, is sufficiently cogent and reliable to satisfy the conscious of the court that the offence against the accused is proved beyond reasonable doubt.
Criminal Appeal 78/2003 is preferred by the State contending that the offence proved is under section 307 of the
IPC. The assault was indeed inhuman and the intention was clearly to main and disfigure P.W.4 Pandurang for life.
However, it is difficult to hold, with certainty, that the requisite intention or knowledge contemplated under section 307 of IPC can be attributed to the accused. The judgment and order impugned to the extent the accused are convicted only under section 325 of the IPC read with section 34 of IPC thereof, must however, be set aside. The accused are liable to be convicted for offence punishable under section 326 of the IPC read with section 34 of IPC thereof.
In so far as sentence is concerned, although the learned counsel for the accused did emphasis on the fact that the incident occurred about 30 years ago, the assault is too brutal and the conduct of the accused too depraved to deserve any leniency.
The accused are sentenced to suffer rigorous imprisonment for four years for offence punishable under section 326 of the IPC read with section 34 of IPC thereof.
Criminal Appeal 616/2002 is dismissed. Criminal Appeal 78/2003 is partly allowed.
The accused be taken into custody forthwith to serve the sentence.
The accused shall be entitled to the benefit of Section 428 of the Code of Criminal Procedure.
Police Station Wadner, Tahsil Hinganghat, District Wardha is directed to file a compliance report in the registry of this court, within 15 days from the receipt of the copy of the judgment. If the compliance report is not submitted, list the disposed of appeal under the caption order matters after three
weeks. The registry to do the needful.