Bombay High Court
Sudhir S/O Shyamrao Jadhav & 2 Ors vs The State Of Maharashtra Thr. Pso, ... on 5 November, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL 223+300.07.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 223 OF 2007
WITH
CRIMINAL APPEAL NO. 300 OF 2007
CRIMINAL APPEAL NO. 223 OF 2007
1] Sudhir s/o Shyamrao Jadhav,
Aged Major, Occ. : Labourer.
2] Pradip alias Bandu s/o Shyamrao Jadhav,
Aged Major, Occ. : Labourer,
3] Dilip s/o Shyamrao Jadhav,
Aged Major, Occ. : Labourer,
All residents of Adivasi Colony,
Adarsha Nehru Nagar, Amravati,
District - Amravati. .. Appellants
.. Versus ..
The State of Maharashtra,
through it's Police Station Officer,
City Kotwali, Amravati,
District - Amravati. .. Respondent
..........
Shri Rahul D. Hajare, Advocate (Appointed) for appellants,
Shri Amit Chutke, APP for respondent-State
..........
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CRI.APPEAL 223+300.07.odt 2
WITH
CRIMINAL APPEAL NO.300 OF 2007
Bhola s/o Shyamraoji Jadhav,
Aged about Adult,
Occupation : Labourer,
R/o. Adivasi Colony, Adarsha Nehru Nagar,
Tahsil and District - Amravati. .. Appellant
.. Versus ..
The State of Maharashtra,
through P.S.Officer, Police Station,
City Kotwali, District-Amravati. .. Respondent
..........
Shri J.B. Kasat, Advocate for appellant,
Shri Amit Chutke, APP for respondent-State.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 05.11.2019.
ORAL JUDGMENT
1] This appeal has been directed against the judgment and order dated 24.05.2007 passed by the learned 1st Ad-hoc Additional Sessions Judge, Amravati in Sessions Trial No.189/2001, whereby the learned ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 3 Additional Sessions Judge has convicted the appellants (hereinafter referred to as 'accused') for the offences punishable under Sections 143, 148 r/w 149, 307 r/w 149 of the Indian Penal Code and Section 25 of the Arms Act. The accused persons were sentenced to suffer rigorous imprisonment for a period of four months each for the offence punishable under section 143 of the Indian Penal Code. They were also sentenced to suffer rigorous imprisonment for two years each for the offence punishable under Section 148 read with Section 149 of the Indian Penal Code. They were also sentenced to suffer rigorous imprisonment for five years each and to pay fine of Rs.1000/- each, in default to suffer rigorous imprisonment for six months each for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. They were also sentenced to suffer rigorous imprisonment for three years each and to pay a fine of Rs.1000/- each, in default to undergo further rigorous imprisonment for three months each for the offence punishable under Section 25 of the Arms Act. 2] The factual matrix of the prosecution case is as under :
The informant Deepak s/o Rameshsingh Baghel (PW-5) is a fruit vendor, resident of Adivasi Colony, Amravati. He was selling fruits by the side of Chotu Pathan on hand cart at Rukhamini Nagar area of ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 4 Amravati. The informant was knowing the accused persons as they were from the same vicinity. On the day of incident i.e. 10.05.2001 at about 8.30 pm, one Bablu s/o Chotu Pathan approached to informant Deepak and informed him that the accused persons had quarrelled with his mother Suraiyya i.e. the wife of Chotekhan Pathan. Thereafter, the accused armed with deadly weapons approached to Chotekhan Pathan and assaulted him by means of sword and knife. Due to which he sustained multiple injuries and he fell down. Thereafter, the accused fled away from the spot. The injured was shifted to Irwin Hospital. The first informant Deepak then proceeded to the City Kotwali Police Station and lodged his oral report. On the basis of the said report, the offence was registered vide Crime No.119/2001. Police rushed to the place of incident and recorded the spot panchanama. The statement of PW-3 Chotekhan Pathan was recorded by the police. The accused were arrested. At their instance, the weapons were recovered from their respective houses. The blood stained clothes of the victim were also taken charge by the police. Similarly the clothes of the accused were also seized under the panchanama. The statements of the witnesses were also recorded by the police. The seized articles were sent to the office of the CA for its analysis. After the completion of the investigation, the charge-sheet was filed against the accused persons. ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 5 The learned trial Judge, after recording the evidence and after hearing both the sides, convicted the accused as aforesaid. 3] Heard Shri Rahul D. Hajare, the learned advocate (appointed) for the appellants-accused in Criminal Appeal No.223/2007 and Shri J.B. Kasat, learned Advocate for the appellant-accused in Criminal Appeal No.300/2007 as well as Shri Amit Chutke, the learned Additional Public Prosecutor for the respondent-State in both the appeals. With their able assistance, I have gone through the record and the proceedings of the case.
4] The learned advocates for the accused persons contended that the prosecution case rests on the sole testimony of victim Chotekhan Pathan (PW-3), whose statement was recorded by the police two to three months after the incident. Thus there is an unreasonable and unexplained delay in recording the statement of the victim, so also it is full with material discrepancies. Hence, the testimony of the said witness is not found to be reliable one. It is further submitted that apart from other witnesses, on the point of recovery of the weapons and clothes of the accused, have not supported the prosecution case and thus the learned trial Judge has not assessed the evidence led by the ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 6 prosecution witnesses in its right perspective and has erroneously convicted the accused.
5] Per contra, the learned Additional Public Prosecutor supported the judgment passed by the trial court and submitted that the evidence has been rightly assessed by the learned trial Judge and has rightly convicted the accused.
6] In order to bring home the guilt of the accused, the prosecution mainly relied upon the testimony of the victim and the evidence of Medical Officers Dr. Kiran Wathodkar (PW-8), who examined the victim and PW-9 Dr. Prakash Sune, who operated the victim. Unfortunately the first informant Deepak Baghel (PW-5) also did not support the case of the prosecution. He was declared hostile. However, no fruitful purpose was served though he was cross examined by the prosecution.
7] So far as the testimony of victim PW-3 Chotekhan Pathan is concerned, it indicates that on 10.5.2001 at about 7.30 to 8.00 pm, while he was selling fruits, his son Babalu informed him that the accused were quarreling in his house. PW-3 sent back his son. After sometime, ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 7 all the accused came near his cart. Accused no.2 Bandu, who was armed with sword, assaulted PW-3 on his head. Accused no.4 Santosh (since dead) gave a blow of sword. Similarly accused no.5 Bhola assaulted him by means of knife on his rib. Accused no.1 Sudhir was armed with pipe, whereas accused no.3 Dilip was armed with knife. They all assaulted PW-3. Due to which, he fell down on the ground and was admitted in Irwin Hospital for 17 to 18 days.
8] The cross-examination of PW-3 Chotekhan Pathan demonstrates that he was convicted under Section 307 of the Indian Penal Code for seven years. He was also convicted under Section 395 of the Indian Penal Code, while in contact with group of Kishor Yadav. He also denied that number of crimes under sections 324, 325, 326, 395, 379 and 307 of the Indian Penal Code were registered against him with Rajapath Police Station. All these suggestions were put up to PW-3 to assail his character and in order to show that he was notorious criminal of Amravati. PW-3 was suggested that two days prior to incident there was murder of Jabbar, therefore, there was a curfew in Amravati city and he was not in a position to take his cart at Rukhmini Nagar, Amravati. It was also suggested that he was attacked by the persons belonging to Jabbarkhan group. PW-3 admitted that his ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 8 statement was recorded by the police one month after the incident. He however failed to explain the reason for the said delay. Some improvements were pointed out in the testimony of PW-3 to the effect that accused Bandu was armed with sword and assaulted him by means of said sword on his head. Another improvement was with regard to the fact that accused Santosh gave a blow on his leg. One more improvement was pointed out to the effect that accused Bhola assaulted him by means of knife on his rib. All these improvements go to the root of the prosecution case and therefore serious doubt about the accused persons assaulting PW-3, as described by him. It was suggested to PW-3 that he sustained injuries in an assault that took place at Daryapur. PW-3 admitted that offence under Sections 326 and 307 of the Indian Penal Code is registered at Daryapur Police Station against him. The said version of PW-3 makes clear that PW-3 was having criminal antecedents. He denied that due to old enmity with the accused persons, he has implicated them in this case. Significantly, PW-3 admitted that his statement was recorded on 3.8.2001, whereas the incident had taken place on 10.5.2001. It is not the case of the prosecution that the accused was hospitalized for indefinite period and he was not able to speak or to give statement with regard to the injuries sustained by him during the incident. No doubt, PW-3 explained that ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 9 as he was in the hospital, his statement was recorded belatedly. However, the fact remains that PW-3 himself has stated that for 17 to 18 days he was hospitalized. If that was the case, it is not clear as to why for two to three months, the statement of PW-3 was not recorded by the police. There is no material evidence on record to show that PW-3 was not in a condition to make his statement or he was not available to the police. In these circumstances, the delay in recording the statement of PW-3 is fatal to the prosecution case and creates a serious doubt about the manner in which incident had taken place or described by PW-3. No doubt the medical evidence supports the case of the prosecution. 9] The testimony of PW-8 Dr. Kiran Wathodkar, Medical Officer, shows the following injuries on the person of PW-3 Chotekhan Pathan.
i. Incised wound 6" x 1" x bone deep, on scalp,
occipital region.
ii. Stab injury 1" x 1/10th" x cavity deep on chest
left side in anterior axillary line 1 inch below
nipple line.
iii. Stab injury 1" x 1/10" cavity deep, 4 inches
below injury no.2.
iv. Incised wound 1" x 1/8th inch x fat deep on
right thigh anteriorly horizantal.
v. Incised wound 1 " x 1/4th by bone deep on left
leg middle 1/3 rd anteriorly obligue.
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CRI.APPEAL 223+300.07.odt 10
vi. Incised wound 1" x 1/4" x muscle deep. 8
inches above injury no.4 on right thigh.
Horizantal.
vii. Incised wound 1/4" x 1/10th inches by muscle
deep right side by the side of skull.
PW-8 Dr. Kiran opined that all the injuries were caused by hard and blunt object. The medical certificate was issued by PW-8 in that regard vide Exh.119. However, the fact remains that no doubt the incident might have taken place, as stated by PW-3. However, it is not proved by the prosecution reasonable doubt that the accused persons were the authors of the said injuries. Needless to mention that the witnesses, on the point of recovery of the weapons, at the instance of the accused persons, did not support the prosecution case and were declared hostile. They were PWs-1, 2, 5 and 6. Thus, there is no convincing evidence on record to show that the accused persons assaulted the victim due to which he sustained injuries. It appears that since there was a curfew in Amravati, due to the murder of harden criminal Jabbar, in these circumstances, it is not clear as to why PW-3 was selling the fruits on his cart at Rukhmini Nagar, Amravati.
10] So far as the testimony of PW-4 Surayya Pathan is concerned, her testimony shows that on the day of the incident at about 8 to 8.30 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 11 pm, accused no.1 Sudhir and accused no.4 Santosh (deceased) had intercepted her and there were altercations between them. Accused asked her to give an understanding to her husband over the dispute of pipe line. The accused had broken pipe line and while her husband was the President of Amravati colony where she was residing. According to her, accused had beaten her. She proceeded to the Police Station and lodged the report.
11] The cross-examination of PW-4 Surayya Pathan shows that she had improved her version by saying that she proceeded to the Police Station and lodged the report against the accused. The said improvement goes to the root of the prosecution case. According to PW-4 she reported the incident of assault to the police. However, there is no such report on record which makes her testimony doubtful. Thus the testimony of PW-4 does not throw any light on the aspect of incident as narrated by PW-3.
12] As discussed above, PW-5 Deepak Baghel, who has reported the incident to the police, however, he turned hostile to the prosecution and flatly denied that he has lodged complaint with respect of the incident which had taken place on 10.5.2001 at about 8.30 pm. He ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 12 denied that at 8.30 pm, Babalu son of Chotekhan (PW-3) had informed him that accused had quarreled with his mother. He also denied that the accused persons were armed with sword, knife and pipes and assaulted PW-3 Chotekhan Pathan. The portion was marked as 'A' for identification, however, later-on it was not proved through the investigating officer. Thus the entire case of the prosecution is under the shadow of doubt. The first information report is also not proved by the prosecution. So also the testimony of the injured witness is recorded after two to three months from the incident. However, the prosecution has not established that the accused were the author of those injuries. The learned trial Judge should have assessed the evidence led by the prosecution witnesses in its proper perspective.
13] In view of the facts and circumstances of the case, it is observed that the learned trial Judge should have assessed the evidence led by the prosecution in its right perspective. The judgment and order passed by the learned trial Judge needs interference and the same needs to be quashed and set aside. Hence, the following order is passed :
ORDER 1] Both the criminal appeals are allowed.::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 ::: CRI.APPEAL 223+300.07.odt 13
2] The judgment and order dated 24.05.2007 passed by the learned 1st Ad-hoc Additional Sessions Judge, Amravati in Sessions Trial No.189/2001 is hereby quashed and set aside and the accused are acquitted of the offences charged with.
3] The professional fees of Shri Rahul D. Hajare, Advocate (Appointed) for the appellant be paid as per the rules.
[MRS. SWAPNA JOSHI, J.] Gulande ::: Uploaded on - 28/11/2019 ::: Downloaded on - 23/04/2020 04:14:11 :::