Bombay High Court
Gopal Anjayya Falmari And Ors. vs The State Of Maharashtra on 28 July, 1994
Equivalent citations: 1995(1)BOMCR116, (1994)96BOMLR144
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. This appeal is directed by the appellants against the judgment and order dated 22-12-1987 passed by the IIIrd Additional Sessions Judge, Solapur in Sessions Case No. 90 of 1987, convicting and sentencing them as under:---
Appellants-
Gopal Anjayya Falmari )Under Section 323 r/w 34 IPC to suffer and Govardhan Anjayya )imprisonment till the Falmari. )rising of Court and )pay a fine of Rs. 250/- )i.d. to undergo S.I. for 3 months. Nagnath Anjayya )Under section 304(2) IPC and Falmari )sentencing him to undergo 3 years )RI and to pay a fine of Rs. 2000/- )in default of payment of fine to )further undergo 6 months RI.
Along with the appellants, Sou. Upendrabai Gopal Falmari wife of appellant - Gopal was also prosecuted but, she has been acquitted by the learned Trial Judge.
2. The prosecution case in brief is that appellants are real brothers. The acquitted accused Suo. Upendrabai Gopal Falmari as stated above is the wife of appellant-Gopal Falmari, Govardhan and Sou Upendrabai Gopal Falmari are said to have been residing in the same house at the time of the incident. Appellant-Nagnath Falmari is said to have been living on rent in a room of another house which was situated in the vicinity of the house of the other appellants. It is also alleged that houses of the appellants and that in which informant Krantiveer PW 3 resides are situated very near to one another. In the vicinity of Krantiveer's house is a grocery shop which is jointly owned by Krantiveer and his brother Shantiveer PW 6 and Ranveer (deceased). It is said that on 19-2-1972, there was a quarrel between the appellant-Gopal on one side and Shantiveer P.W. 6 and deceased Ranveer on the other side. The same day, another quarrel is alleged to have taken place between the appellant-Govardhan on one side and Shantiveer Krantiveer, and Ranveer on the other side. It is said that this quarrel had taken place because, Govardhan was going on a by-cycle carrying sugar and he was fallen down by the aforesaid persons and his sugar fell.
3. It is alleged that the aforesaid two minor incidents were compromised between the parties.
According to the prosecution, the following day i. e. 20-2-1987, appellant-Gopal armed with stick came inside the aforesaid grocery shop of Ranveer and provoked him by saying "Unless he has put on bangles, on his wrist, he should come out". It is further said that Gopal in turn came inside the shop and dragged out Ranveer from the shop giving him blows with sticks on his back. Krantiveer PW 3 is alleged to have reached the place of incident on hearing the shouts of Ranveer and tried to save the latter. At that time, the appellant-Nagnath and Govardhan armed with iron pipes came there. According to the prosecution the appellant-Gopal left Ranveer and started assaulting Krantiveer with sticks on his left thigh and left knee. The appellant-Nagnath and Govardhan are alleged to have assaulted Ranveer with iron pipe. It is said that Nagnath entered inside the shop, picked up a knife which was kept inside the shop and thereafter, gave a blow with the same on the left groin of Ranveer. He is also alleged to have given a knife blow on the left knee of Ranveer. As a result of the assault by knife, Ranveer fell down and blood started gushing out from his injuries. It is said that the acquitted accused Sou. Upendrabai was also there and had caught hold of Ranveer while he was being assaulted. After the assault was over, Shantiveer PW 6 brought a rickshaw and on the same took Ranveer who was precariously injured to Hospital. It is said that before leaving for the Hospital, Krantiveer picked up the knife which had been thrown there by the accused persons. This was the same knife with which Ranveer had been assaulted. It is said that while Ranveer was being treated in the Hospital, he succumed to his injuries, on 20-2-1987 at 8.15 a.m.
4. An FIR of the incident was lodged By Krantiveer after death of Ranveer at Police station, Jail Road, District Solapur. On the basis of FIR, Crime No. 55/87 under section 302 IPC was registered against the appellants and Sou. Upendrabai, the acquitted accused. The investigation of the case was done by PI Vijay Nagarkar PW 12. As Krantiveer was injured, he was referred to Civil hospital Solapur. An inquest panchanama Exh. 48 and the same was also prepared from the place of incident, plain and blood stained earth was also taken. Same day, the appellants Gopal and Nagnath were arrested and there after, they were referred to the Medical Officer for examination of the injuries. It is alleged that at the pointing out by appellant-Nagnath, iron pipe and stick alleged to have been used in the incident were recovered. During the course of investigation, statement of witnesses under section 161 of Cr.P.C. were also recorded. Ultimately, after completing the investigation, the Investigating Officer submitted of the charge-sheet against the appellants.
5. Going backward, the post-mortem examination of the dead body of Ranveer was conducted on 20-2-1987 by PW 10 Dr. Subhash Chandra Sargameshwar Sardar. On the person of the deceased, the doctor found the following ante-mortem injuries :---
1. Abrasion on left side of neck 1 inch brown colour upper part.
2. Abrasion near left ear on mandille 1/2 brown colour.
3. Abrasion left side of chin 1/2 brown colour.
4. Abrasion at base of neck about in front 1 inch brown colour
5. Another abrasion near above wound 1/2 brown colour.
6. Three abrasion on sterum notch 1/2 brown colour.
7. Abrasion on right side of neck 1/2 inch brown colour.
8. Two abrasion on left shoulder 1 inch brown colour.
9. Incised wound on rt. index finger 1 inch muscle deep.
10. Stab wound 1 x 1/1 inch clliptical grapping present margin clean cut regular on left upper thigh medially situated below the ingivinal ligament oblique cavity deep.
11. Incised wound on left knee 1 inch.
12. Three contusion on back near left scapular 1/2 1, 1/2 inch brown colour
13. Abrasion on lateral side of left shoulder 1 inch brown colour.
According to the doctor, the deceased died on account of shock and haemorrhage due to injury to external iliac vessels and rupture of bladder. The doctor also opined that the ante-mortem injury No. 10 along with corresponding internal injuries was sufficient in the ordinary course of nature to cause death of the deceased. He also stated that stab wound and incise wound suffered by the deceased could be caused by the knife.
6. Krantiveer PW 3 was medically examined by Dr. A.R. Kulkarni, of General Hospital Solapur on 20-2-1987 at 11.30 a.m. The doctor did not find any external injuries on his person but, noted in the Injury Certificate that there was painful movement of his right shoulder and left leg and tenderness in to his right calf.
7. Same day i.e. on 20-2-1987, a counter FIR with respect to the same incident was lodged by appellant-Nagnath at police station, Jail Road on the basis of which Crime No. 50 of 1987 was registered against the deceased Ranveer and his brothers Krantiveer and Shantiveer. Case of the appellant as disclosed in this counter FIR is that yesterday (19-2-1987) at about 4 p.m., Shantiveer urinated in his plot and when the appellant-Gopal protested, an alteration took place between them on the one side and Ranveer and Shantiveer on the other side. It is alleged that at that time, the appellant-Govardan was not at the house and came back at about 9 p.m. When Govardan came back, Ranveer, Shantiveer and Krantiveer assaulted him. On the morning of 20-2-1987 at about 6.30 a.m. to 6.45 p.m. appellant-Nagnath went to Ranveer's grocery shop to find out to enquire about the incident which had taken place the previous day before. At that time, Ranveer was sitting in the shop. He started abusing him. Ranveer's brothers Krantiveer and Shantiveer also came out and assaulted him (Nagnath and his brothers Gopal and Govardhan). Ranveer is alleged to have picked up a knife from his shop and stabbed Govardhan with the same. Seeing Govardhan getting injured, Nagnath snatched the Knife from the hand of Ranveer and stabbed Ranveer with the same.
8. After lodging of FIR, PI Vijay Ramchandra Nagarkar, PW 12 sent Gopal and Nagnath to Civil Hospital, Solapur for medical examination.
Injuries of Gopal were examined by Dr. B.M. Jadhav, of General Hospital Solapur on 20-2-1987 at 6.35 p.m. The doctor found that Gopal had sustained 2 contusions out of which, one was 3" x 1/2" situate over the lumber spine and the other was 1" x 1/2" on gluteat region on left side. In the opinion of the doctor, these injuries were caused within 12 hours and were attributable to a hard blunt object. Nagnath was also medically examined by Dr. B.M. Jadhav on 20-2-1987 at 6.40 p.m. and the doctor found that he had sustained following injuries:---
1) Contusion 2" x 1/2" Occipital region
2) Abrasion 3" x 1/2" left scapulan region
3) Abrasion 3" x 2" simple rt. side on of fibula
4) CLW 1" x 1/2" medial aspect wrist simple joint of left hand
5) CLW 1/2" x 1/2 Base at the thumb simple of left hand
6) Contusion 1/4" x 1/4" over the rt. shoulder it simple joint.
7) Contusion 1/2" x 1/2" rt. gluteal region simple.
According to the doctor, the aforesaid injuries were attributable to a blunt object and were caused within 12 hours.
Injuries of appellant Goverdhan were also medically examined on 20-2-1987 at 10.30 a.m. by Dr. A.R. Kulkarni who examined him and found following injuries on his person:---
1) Incised wound 2 x 1 cm mid lateral oblique border of 1t x scapular region
2) Incised wound 5 x 1/2 cm 1t. shoulder flat. Mshapgrm region skin deep bleeding.
3) Incised wound 1/2 x 1/4 cm tip of urse superficial bleed
4) Incised superficial 1/4 cm bleed In the opinion of the doctor, the aforesaid injuries were caused within 12 hours by sharp cutting weapons.
9. The case was committed to the Court of Sessions. In the usual course, in the trial Court, charges under section 302 read with section 34 IPC and some other sections were framed against the appellants and the acquitted accused Sou. Upendrabai and to the aforesaid charges, all of them pleaded not guilty and claimed to be tried. During the trial, in all the prosecution examined as many as 12 witnesses and also tendered and proved various Exhibits. The learned Trial Judge after assessing the evidence and hearing the learned Counsels for both the sides, passed the impugned order.
10. I have heard Mr. T.E. Mane, learned Counsel for the appellants and Mr.. D.T. Palekar, learned Additional Public Prosecutor for the State of Maharashtra at considerable length. I have also perused various Exhibits tendered and proved by the prosecution to establish its case. After giving my anxious consideration to the matter, I am firmly of the opinion that this appeal must succeed.
11. In the instant, the date, time and place of incident is admitted by both the prosecution and the defence. Both the sides agree that the present incident took place on 20-2-1987 at about 6.30 to 6.45 a.m. at the grocery shop of the deceased Ranveer in Gandhinagar Zopadpatti No. 3 Solapur.
12. The only point in dispute is as to which version of the incident that given by the prosecution or that disclosed in the FIR of the defence is true. I may mention here that it is well settled by the Apex Court that whereas the burden on the prosecution is to prove its case beyond reasonable doubt. Burden on the defence is only to show a prepondrance of probability that its case may have been true See Para 12 of , Pratap v. State of Uttar Pradesh. In the aforesaid paras, the Apex Court held:
"It is well settled that the burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability."
I have referred to rival versions of the incident in the earlier part of my judgment.
14. There are some inherent weakness in the prosecution case which render it unworthy of acceptance.
15. Firstly, the definite case of the prosecution is that appellant Gopal assaulted Krantiveer with a stick on his left thigh and left knee joint. However, this claim of the prosecution which has been deposed to by Krantiveer in his statement in the trial Court is not only belied by the medical evidence which shows no external blunt weapon injuries on Krantiveer's person but has been doubted by the learned trial Judge in para 16 of his judgment.
16. Secondly, the prosecution version of the incident completely fails to explain the injuries sustained by the three appellants. I have mentioned the injuries of the appellants in earlier part of my judgment. In cannot pursuade myself to agree to the view of the learned trial Judge that these injuries were so trivial and so minor that they required no explanation. Injuries of the defence and the inference to be drawn by them, has been discussed by the trial Judge in para 19 of his judgment. Again, I am not in agreement with the learned trial Judge when he says in the context "When Ranveer was dragged out of his shop, he might have caused injury with a knife to Govardhan when Govardhan attacked him." In support of the aforesaid observation, there is no evidence. In my view of the matter the injuries of the defence were located on vital parts of the body and it was incumbent on the part of prosecution to have explained that there were definitely not trivial injuries which could have gone unnoticed and which required no explanation. Thirdly, I find that the evidence of all the eye witnesses examined by the prosecution is not trustworthy for sustaining conviction of the appellants. In the instant case as many as 6 eye witnesses were examined by the prosecution namely, Krantiveer (PW 3) Milind Chougule (PW 4) Shantabai Pawar (PW 7) Shantiveer Pawar (PW 6) Manohar Kshirsagar (PW 9) and Indubai (PW 5) who has turned hostile and not supported the prosecution. I may mention that none of these witnesses had given any explanation regarding the injuries sustained by the appellants, and this suppression of the injuries of the defence on their part itself shows their partiality, to the prosecution and antipathy to the defence. Further, I find that Krantiveer PW 3 is a liar in as much as he alleges that he was assaulted by a stick of appellant Gopal but, no injury has been found on his person. So far as Milind Kamble PW 4 is concerned, he has admitted in his evidence that Krantiveer and his brothers are his friends. Hence, he also cannot be said to be independent witness. PW 6 Shantiveer is also not a independent witness because, he is brother of PW 3 Krantiveer. As regards Shantabai Pawar, PW 7, suggestion of the defence is that she is deposing on a two-fold consideration :---
a) At the instance of the police ;
b) She used to purchase, goods on credit from the grocery shop of deceased Ranveer and his brothers-Shantiveer and Krantiveer.
As regards Manohar Kshirsagar, PW 9, I find that for no plausible explanation, he was not interrogated under section 161 of Cr.P.C. on the date of the incident but, on the next day. I have a feeling that he is a got-up-witness and delay in the recording of the aforesaid statement is on account of the endeavour of the investigating agency to create a trumped up witness. The Apex Court in the decision Ganesh Bhavan Patel v. The State of Maharashtra, has observed in para 15 as under :---
Para 15:
"Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But, it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced."
15. In view of the aforesaid infirmities, in the occular account, it would not be prudent and safe to accept the same. So far as the appellants are concerned, they have discharged their burden enjoined on them by section 105 of the Evidence Act by showing pre-ponderance of probabilities that their version may be true. The prosecution version of the incident as given out in the defence - FIR, not only explains the injuries of the appellants but, also that of the deceased. Assurance is lend to their version by substantial injuries some of which, are very seriously sustained by them. The duration of the injuries given by the doctor fits in with the time of the incident.
16. In the result, this appeal is allowed. The judgment and Order dated 22-12-1987 passed by the IIIrd Additional Sessions Judge, Solapur in Sessions Case No. 90 of 1987 is set aside. The appellants are acquitted of various offences. They are on bail. They need not surrender. Their bail-bound shall stand cancelled and sureties discharged. In case, appellants have paid the fine, the same shall be refunded to them.