Bombay High Court
Kittu Pocham Katlawar & 3 Ors vs State Of ... on 13 June, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
212apeal393.04
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 393/2004
APPELLANTS 1. Kittu s/o. Pocham Katlwar,
aged about 25 years, Occ. Labourer,
2. Pocham S/o Buccham Katlawar,
aged about 63 years, Occ. Labourer,
3. Ashok s/o. Pocham Katlawar,
aged about 21 years, Occ. Labourer,
4. Balaji S/o. Pocham Katlawar,
aged about 32 years, Occ. Labourer,
All R/o. Gaurakshan Ward, Ballapur, Tah.Ballarpur,
Dist. Chandrapur.
versus
RESPONDENT The State of Maharashtra,
through Police Station Officer,
Police Station, Ballarshah.
...............................................................................................................................................
Mr. A. J. Thakkar, Advocate for appellant.
Ms. S. A. Ashirgade, Additional Public Prosecutor for respondent - State.
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED : 13th June, 2018
ORAL JUDGMENT:
1. This appeal has been directed against the judgment and order dated 07.05.2000 delivered by the learned 2nd Ad-hoc Additional Sessions Judge, Chandrapur in Sessions Case No. 18/2000 whereby the learned 2nd Ad-hoc Additional Sessions Judge, Chandrapur convicted the accused Nos. 1, 2, 3 and 4 under Section ::: Uploaded on - 18/06/2018 ::: Downloaded on - 19/06/2018 01:02:44 ::: 212apeal393.04 2 323 of Indian Penal Code and they were sentenced to suffer R.I. for 3 months and to pay a fine of Rs. 200/-, in default to suffer R.I. for 1 month. They were also convicted under Section 324 read with Section 34 of Indian Penal Code and sentenced to suffer R.I. for 6 months and to pay a fine of Rs. 200/-, in default to undergo R.I. for 1 month. Accused No. 4 - Balaji was also convicted under Section 326 of Indian Penal Code and he was sentenced to suffer R.I. for 2 years and to pay a fine of rs. 500/-, in default to undergo R.I. for 3 months.
2. The prosecution case in nutshell is that the complainant - Ganesh Tokalwar (PW-2) and the accused persons are neighbours. On the day of incident dated 24.01.1999, at about 08.00 p.m., the complainant - Ganesh returned from his work. He noticed that quarrel was going on between accused persons in his courtyard. PW-2 went to resolve the dispute. The complainant then went inside his house and after sometime, when he was sitting on the cot, the accused No. 4 - Balaji came to that place and he started abusing to PW-2. Thereafter, accused No. 1 - Kittu, accused No. 2 - Pocham and accused No. 3 Ashok came there and started abusing to the complainant - (PW-2). Suddenly accused No. 4 - Balaji gave blow of Gupti on the stomach of the complainant as well as on back. Accused No. 1 - Kittu and other accused persons who were holding sticks, they started assaulting PW-2 by means of sticks. Accused Nos. 1 to 4 assaulted his mother, brother - Laxman, elder father - Railingu, and wife of Laxman namely Laxmibai by means of sticks as well as to the sister Pushpa and wife of complainant - Radha by means of stick. The complainant ::: Uploaded on - 18/06/2018 ::: Downloaded on - 19/06/2018 01:02:44 ::: 212apeal393.04 3 was taken to the Police Station, Ballarshah by his wife in auto-rickshaw. Police referred him to the Government Hospital, Ballarashah and recorded his statement (Exhibit-84). At the relevant time, P.S.I. Motiram Bohare (PW-12) was attached to the Ballarshah Police Station. On receipt of the message from the hospital that the injured was admitted in the hospital, he proceeded to the hospital and and recorded the complaint of Ganesh. On the basis of said complaint, he registered the offence vide C.R. No. 0018/2000. P.S.I. Shri Ramdas (PW-13) visited the place of incident and recorded Spot Panchanama at Exhibit-27. He arrested accused persons. On 28.01.1999, accused No.1 - Kittu showed his willingness to point the place where he kept the stick. Accordingly, memorandum panchanama was recorded at Exhibit-40. Accordingly, accused - Kittu, PW-13 and Panchas went to his house and stick was recovered from his house. It was taken charge by the Police, under the seizure Panchanama at (Exhibit-41). Accused No.3 - Ashok showed his willingness to discover the stick. Accordingly, memorandum panchanama was drawn (Exhibit-42). Accused - Ashok, PW-13 and panchas went to the house of accused and stick was discovered at his instance. It was taken charge by the Police and seizured panchanama was prepared (Exhibit-43). Accused No.4 - Balaji showed his willingness to point out gupti. The memorandum panchanama was drawn (Exhibit-44). Accordingly, accused - Balaji, PW-13 and panchas went to the house of accused and discovered Gupti at his instance. Police took charge of Gupti and prepared seizure panchanama at Exhibit -
45. Accused No. 2 - Pocham showed his willingness to point out stick and accordingly memorandum panchanama was drawn (Exhibit - 46). PW-13, accused Pocham, ::: Uploaded on - 18/06/2018 ::: Downloaded on - 19/06/2018 01:02:44 ::: 212apeal393.04 4 Police and panchas went the house of the accused and discovered the stick. The police taken charge of stick at the instance of accused and accordingly seizure panchanama was prepared (Exhibit-47). The sticks are at Article 'C' and Gupti is at article 'A'. PW-13 sent all the accused for medical examination. PW-13 sent seized property to the C.A. Office. After completion of investigation, charge-sheet was filed in the Court of learned J.M.F.C. and accordingly, the case was committed to the Court of Sessions. The learned Ad-hoc, Additional Sessions Judge framed charge and on analysis the evidence and after hearing both the sides, convicted the accused as aforesaid.
3. The learned Advocate for the appellants vehemently argued that the learned trial Judge has not considered the evidence of prosecution witnesses in its right perspective and erroneously convicted the accused. The learned A.P.P. submitted that the witnesses have supported the case of prosecution. Thus, the learned Ad-hoc Additional Sessions Judge has rightly convicted accused persons.
4. The prosecution has relied upon the testimony of injured witnesses. The testimony of PW-2 - Ganesh shows that on the day of incident, at about 05.00 p.m. when he returned back to the house from Saw Mill, he noticed that quarrel was going on between accused persons in his courtyard. The house of accused and his house are adjacent to each other. After sometime, when he was sitting on the cot, accused - Balaji came there by holding gupti and other accused persons - Kittu, Pocham and ::: Uploaded on - 18/06/2018 ::: Downloaded on - 19/06/2018 01:02:44 ::: 212apeal393.04 5 Ashok came there by holding sticks. Balaji gave a blow of gupti on stomach and back. Kittu beat him on his neck by means of stick. All the accused persons assaulted his mother, brother - Laxman by means of sticks. All the accused persons beat his elder father - Railingu, wife of Laxman namely Laxmibai, his sister - Pushpa and his wife with sticks. As PW-2 received injury on his stomach and back, his wife took him to the Police Station, Ballarshah in auto-rickshaw. Police referred the PW-2 to the Government Hospital, Ballarshah. PW-2 identified Gupti - Article 'A' and the stick - Article 'C'. It was suggested that as there was scuffle between the accused persons at one side and the complainant and the witnesses at other side, therefore witnesses had received injuries. PW-2 denied the said suggestion. It was also suggested that witnesses were holding weapons and as there was a scuffle, during the scuffle, they received injuries by those weapons. PW-2 denied the said suggestion.
5. The testimony of PW-2 is corroborated with the testimony of PW-3 who is the mother of PW-2. According to her, on the day of incident, all the accused persons quarreled with her son. Accused Balaji gave blow of Gupti on the stomach of PW-2 and all the 4 accused persons assaulted her as well as Laxmi, Railingu, Laxman and Pushpa with sticks. Accused persons also assaulted her on her head by means of stick. According to PW-3, she lodged report (Exhibit-30). At this juncture, it may be noted here that although she lodged complaint (Exhibit-30) with Police Station, it appears that the offence was registered on the basis of complaint lodged by the PW-2 - Ganesh. The statement of Ganesh was recorded in the hospital and on the basis of ::: Uploaded on - 18/06/2018 ::: Downloaded on - 19/06/2018 01:02:45 ::: 212apeal393.04 6 said statement (Exhibit-84), the offence came to be registered. In the cross- examination, PW-2 denied that during the scuffle, all the witnesses received injury.
6. Deposition of PW-4 Radha who is wife of Ganesh Tokalwar (PW-2) indicates that accused Balaji and Kittu abused her husband. Balaji assaulted her husband on his stomach and back with gupti. Remaining 3 accused had caught hold her husband. PW-4 shouted therefore, her mother-in-law, husband's brother and sister came to that place. All 4 accused assaulted them with sticks. PW-4 denied that all the witnesses received injuries during scuffle with accused persons.
7. The meticulous scrutiny of the testimony of all these witnesses makes manifestly clear that the incident of alleged assault had taken place. Accused No. 4 assaulted PW-2 - Ganesh by means of gupti on his stomach and back and the other accused persons assaulted Ganesh - (PW-2) as well as PW-3 by means of sticks. Accused Nos. 1 to 3 assaulted other witnesses by means of stick.
8. Deposition of Dr. Govindprasad Kurl (PW-11) shows that on 24.01.1999, he was working as a Medical Officer at Ballarpur. He examined Ganesh and found the following injuries on his body:-
(i) Incised stab wound on right hypocondrum region. Vertical 1" in length with sharp margins. Depth could not be seen. Having abdominal tenderness.
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(ii) Incised stab wound on backside lattoral scapula obliq vertical 1/2" in length Deep obliq upto muscle.
He issued medical certificate in that regard (Exhibit-65). PW-11 then examined Bhanubai Tokalwar (PW-3). He found the followign injuries:-
(i) Lacerated wound on head at anterio partital region left side 1" in length Deep upto bone with rough margin.
(ii) Contusion on hand above elbow laterally 3" x 3" tenderness to the left side.
(iii) Abrasion over left knee 1" x 1" with loss of skin layer.
(iv) Contusion on right had near deltoil transfers 1" x 2".
He opined that those injuries might have been cause due to hard and blunt object. He issued medical certificate (Exhibit-69).
PW-11 examined Laxmi w/o Laxman Kokalwar. He found lacerated wound on head of middle, anterior posterial direction 3" in length, deep with centerlly upto bone with rough margins. According to PW-11, cause of injury is due to hard and blunt object, age of the injuries over 2 hours.
9. PW-11 examined accused No. 3 Ashok and accused No. 1 Kittu. He found the following injuries:-
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(i) contusion on right eye. The swelling all over eye.
(ii) Abrasion over supra orbital region right side irregular in size with scale formation.
In his opinion cause of injuries was of hard and blunt object and fall over rought surface. Its age was more than 24 hours. He issued medical certificate (Exhibit-
75). He found the following injuries on the body of accused No. 1 - Kittu.
(i) Redness with old contusion on right at axillary side. Side medially at irregular area. Size 3" x 2".
(ii) Multiple over abrasion over the neck supra clavicular region. Right side 1 c.m. x 4 cm. scale formation.
(iii) Injury on back left side transfer at lower side of the rib 1" x 1 ½ "
with redness and black colouration.
(iv) Linear abrasion below injury No. 3 just medially 2" in length with scale formation.
He issued medical certificate (Exhibit-77). According to him, the injuries were simple in nature. Thus, the medical evidence corroborates the ocular testimony of witnesses. As regard the recovery of gupti, the gupti was recovered at the instance of accused No. 4 - Balaji. However, PW-5 and PW-10 have not supported to the case of the prosecution in that regard. The testimony of PW-13 shows that accused Balaji shown his willingness to point the place at which the gupti was kept and accordingly the memorandum panchanama was drawn (Exhibit-44) and Gupti was recovered at the instance of Balaji from his house (Exhibit-45). All the sticks were taken charge from ::: Uploaded on - 18/06/2018 ::: Downloaded on - 19/06/2018 01:02:45 ::: 212apeal393.04 9 accused Nos. 1, 2 and 3 at their instance from their respective house.
10. The learned 2nd Ah-hoc Additional Sessions Judge has assessed all the evidence in its right perspective. The prosecution has proved its case beyond reasonable doubt.
11. As discussed above, the medical evidence supports the testimony of the prosecution witnesses. However, so far as the offence under Section 326 is concerned, no grievous injury is noticed on the body of the witnesses in view thereof. In view of the facts and circumstances, the following order would meet the ends of justice:-
ORDER
(i) Appeal is partly allowed.
(ii) Conviction of accused Nos. 1, 2, 3 and 4 under Section 323 and Section 324 of Indian Penal Code is maintained and they are directed to deposit fine of Rs. 1000/- each.
(iii) Accused No. 4 is acquitted for the offence punishable under Section 326 of Indian Penal Code
(iv) Fine amount is to be deposited before the Sessions Court on or before 30.06.2018.
JUDGE Gohane ::: Uploaded on - 18/06/2018 ::: Downloaded on - 19/06/2018 01:02:45 :::