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Prakash Deoram Gurchal and anr. Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 80 of 1980 and Criminal Revision Application No. 116 of 1980
Judge
Reported in1983(1)BomCR476
ActsIndian Penal Code (IPC), 1860 - Sections 34, 325, 326 and 328
AppellantPrakash Deoram Gurchal and anr.
RespondentState of Maharashtra
Appellant AdvocateS.R. Chitnis, Adv.
Respondent AdvocateN.D. Hombalkar, P.P.
DispositionAppeal allowed
Excerpt:
.....present appellants with fracture on frontal bone - it will not give rise to offences punishable under sections 34 and 326. (ii) oral evidence - oral evidence is far from being consistent - there are serious discrepancies and infirmities in oral evidence including infirmity in evidence of p.w. 14 - p.w. 14 has not mentioned any axe in hands of accused no. 3 or any axe blow by accused no. 3 in first information report lodged immediately after incident - serious infirmity in evidence of p.w. 14 could not be lightly got over - appeal allowed. - - 12) who examined devaka the same night shows that he found ten injuries on the person of devaka including the fracture of the frontal bone, 2',in length, and the other injuries were all incised injuries as could be caused by sharp..........accused no. 3. sarubai (p.w. 17) merely says 'accused no. 1 gave devaka a blow with axe on his head. accused no. 3 also did the same'. no other details are given. narmadabai (p.w. 18), a neighbour merely says that accused nos. 1 and 3 had axes and they assaulted devaka on her ota. when they started beating devaka she ran to her neighbour's house. she was standing in front of wankhede's house. the assailants used axes and spear, but she did not exactly see which of the accused hit devaka where. thus, her evidence is very general with no details coming out in the trial court. sonabai (p.w. 19) does not make any reference to accused no. 3 pralhad and admits that she could not see what weapons the assailants were wielding owning to the crowd. ashok (p.w. 20), the grandson of devaka,.....
Judgment:

V.V. Joshi, J.

1. The two appellants who were original accused Nos. 2 and 3 in the trial Court stood their trial along with six other persons charged under sections 148, 307 read with section 149, 323 read with section 149 and in the alternative under section 307 read with section 34 of the Indian Penal Code, further in the alternative under sections 326, 325 and 323 read with section 34 Indian Penal Code. The trial Court found that the prosecution had not proved any unlawful assembly of five or more persons, and therefore, convicted the two appellants under sections 326 and 323 Indian Penal Code read with section 34 Indian Penal Code and sentenced each of them to rigorous imprisonment for six months on each of the two counts. All the other accused were acquitted. Aggrieved by their convictions and sentences the appellants have preferred this appeal. This Court while admitting the appeal issued notice of enhancement of sentence giving rise to Criminal Revision Application No. 116 of 1980. This judgment shall dispose of both the matters.

2. Incident took place on 18-1-1978 at 6.30 p.m. at village Amadgaon in Taluka Bhusawal of the Jalgaon District. The complainant Devaka (P.W. 14) and the original accused persons are inter related. They belong to Boudha community. The incident arose out of a quarrel four days earlier between Yeshwant (P.W. 16) the son of the complainant Devaka (P.W. 14) and Prakash the appellant No. 1 (original accused No. 2) over some money due from the latter to Yeshwant for purchases from Kirana shop of Yeshwant. At the time of the incident the eight accused along with one Ratan (who is absconding) assaulted Devaka (P.W. 14) with weapons including a spear, alleged to have been in the hands of the absconding accused Ratan. In the hands of Pandharinath the original accused No. 1 and Pralhad, original accused No. 3 were axes. Prakash, original accused No. 2 is alleged to have assaulted Devaka with a Musal i.e. a heavy wooden pounder. The incident was witnessed by several witnesses and as a result of the incident, Devaka (P.W. 14) received as many as 10 injuries including a fracture of the frontal bone, 2' in length. The other injuries were all incised injuries as could be caused by axes and spears. As a result of the incident, Devaka (P.W. 14) lodged the F.I.R. Exhibit 48 the same night at 10.45 p.m. at Bodwae Police Station. A dying declaration was also recorded from Devaka the same night by the Special Executive Magistrate, Jalgaon, Keshav Shankar Bhavsar, who however, was not examined at the trial though the dying declaration was used to contradict Devaka during his evidence.

3. The case mainly rests on the oral evidence of the several alleged eye witnesses, including Devaka (P.W. 14) the victim. As the learned judge of the trial Court found that there was no unlawful assembly of five or more persons with the common object of assaulting Devaka, the only question which now arises for our consideration is whether the two appellants could be said to have been proved to have caused by sharing of common intention causing grievous hurt to Devaka with sharp cutting instruments so as to bring them within the inculpatory ambit of section 326 read with section 34, Indian Penal Code.

4. So far as the part in the incident of assault attributed to the appellant No. 1 Prakash (who is original accused No. 2) is concerned the allegation is that he gave a blow on the head of Devaka (P.W. 14) with the heavy wooden pounder (Musal) which as a result broke into two pieces causing fracture of the skull. The first point to note in this connection is that the evidence of Dr. Gajendrasingh Narayanrao Patil, (P.W. 12) who examined Devaka the same night shows that he found ten injuries on the person of Devaka including the fracture of the frontal bone, 2', in length, and the other injuries were all incised injuries as could be caused by sharp cutting instruments like axes and spears. Obviously Dr. Gajendrasingh Narayanrao Patil, (P.W. 12) did not find any injury on the head of Devaka as could be attributed to a blow by the heavy wooden pounder (Musal). The fracture indicated as injury No. 2 is on the right frontal bone 2', in length and must necessarily be referable to the external injury No. 1, which is an incised wound on forehead, right side, vertical 3' x 1/2' x bone deep. Therefore, obviously the fracture of the right frontal bone was caused, because of injury No. 1 which is an incised injury. Dr. Gajendrasingh Patil (P.W. 12) has actually stated in para 8 of his deposition that there was an injury corresponding to the fracture injury No. 2 of Devaka and so far as he could remember, it was an incised wound, since the skin was open and he could see the fracture. Thus the medical evidence does not disclose any injury on the head attributable to a heavy wooden pounder (Musal). The second point to note is that the F.I.R. Exhibit 48, lodged immediately after the incident does not make any mention of any assault with a wooden pounder (Musal). The oral evidence about the role in the assault attributed to appellant No. 1 Prakash (original accused No. 2) comprises the testimony of P.W. 14 Devaka, his daughter Sarubai (P.W. 17), Devaka's grandson Ashok (P.W. 20), Laxmibai (P.W. 21), Sopan (P.W. 22), and Dashrath (P.W. 24), Devaka (P.W. 14) merely says that accused No. 1 Prakash hit him with the Musal on his head. He does not say anything about the wooden pounder breaking into two pieces as a result of the blow. Sarubai (P.W. 17) daughter of Devaka on the contrary says that when Prakash (accused No. 2) gave hit on Devaka on the head with the wooden pounder the wooden pounder broke into two pieces. Ashok (P.W. 20), the 13 years old son of Sarubai and the grandson of Devaka, merely says that accused No. 2 Prakash had a Musal in his hand, but he does not say anything about assault with the Musal. Laxmibai (P.W. 21) says that accused No. 2 Prakash had a Musal in his hand and he hit Devaka on the head with it but she does not say anything about the breaking of the Musal. Sopan (P.W. 22) likewise says that Prakash accused No. 2 hit Devaka with the Musal on the head and the Musal broke into two. Dashrath (P.W. 24) merely says that accused No. 2 Prakash had a Musal in his hand but says nothing about assault with the Musal. In view of the discrepant state of this evidence, the absence of mention of assault by accused No. 2 with the Musal on the head of Devaka in the F.I.R. Exhibit 48, and the absence of consistency in the oral evidence about such assault, it would not be possible to accept the allegation against the accused No. 2. Prakash that he assaulted Devaka with the wooden pounder on the head.

5. This brings us to the allegation about the role of Prahlad appellant No. 2 (the original accused No. 3) in this incident. Devaka has stated in his F.I.R Exhibit 48, the appellant No. 2 i.e. original accused No. 3 had given one blow of his stick on his head and injury was caused. The first point to note in this respect is that Devaka (P.W. 14) has in his evidence in the trial Court stated that he was hit with axe on the head by two persons, namely, original accused No. 1 Pandharinath and the original accused No. 3 Pralhad who is appellant No. 2. Carefully examining the evidence of Devaka (P.W. 14) on this point, it would be seen that his version, in the evidence that it was accused No. 3 Pralhad who gave him a blow on the head with axe runs counter to the initial version he had given in the F.I.R. Exhibit 48 where he had alleged that the axe blow was given by Prakash, original accused No. 2 and Pralhad original accused No. 3 had merely given a stick blow on his head. This was a serious infirmity in the evidence. The second point to note is that even accepting the evidence of Devaka (P.W. 14) in the trial Court, it would be seen to us that it was not the axe blow given by the accused No. 3 Pralhad that had caused the fracture of the frontal bone of Devaka. Devaka (P.W. 14) says in paragraph 7 of his evidence 'accused No. 1 hit on my head with axe blade. Accused No. 3 also hit me with axe on my head ............. The blow on my forehead with axe had been given by Pandhari'. We have already noted that it was the external injury No. 1 the incised wound on the forehead right side vertical 3' 1/2' bone deep which was referable to the fracture of the right frontal bone 2' in length (injury No. 2) and, therefore, it would be clear on the admission of Devaka (P.W. 14) that the axe blow on the forehead was given to him by Pandharinath accused No. 1 and the fracture must have been caused by the said axe blow given by accused No. 1 Pandharinath on the forehead of Devaka (P.W. 14) and not by the axe blow alleged to have been given by Pralhad accused No. 3 who had given merely an axe blow on the head of Devaka (P.W. 14). There is only one incised injury on the forehead. It would, therefore, be seen that even if we were to accept the entire evidence led by the prosecution on this point it would not be possible to connect the present appellants with the fracture on the frontal bone giving rise to the offences punishable under section 326 r.w.s. 34 of the Indian Penal Code.

6. This takes us to the question of consideration of the entire oral evidence on this point about the role alleged to have been played by Pralhad accused No. 3 which comprises the evidence of Devaka (P.W. 14), Sarubai (P.W. 17), Narmadabai (P.W. 18). Sonabai (P.W. 19), Ashok (P.W. 20), Laxmibai (P.W. 21), Sopan (P.W. 22) and Dashrath (P.W. 24). We have already noticed that the evidence of Devaka (P.W. 14) suffers from the serious infirmity that evidence runs counter to the recital in the F.I.R. Exhibit 48 he had lodged immediately after the incident with the police where the roles attributed to accused No. 2 Prakash and accused No. 3 Pralhad seem to have been reversed, in the sense that the axe blow was attributed in the F.I.R. to accused No. 2 Prakash and not to Pralhad accused No. 3. Sarubai (P.W. 17) merely says 'accused No. 1 gave Devaka a blow with axe on his head. Accused No. 3 also did the same'. No other details are given. Narmadabai (P.W. 18), a neighbour merely says that accused Nos. 1 and 3 had axes and they assaulted Devaka on her Ota. When they started beating Devaka she ran to her neighbour's house. She was standing in front of Wankhede's house. The assailants used axes and spear, but she did not exactly see which of the accused hit Devaka where. Thus, her evidence is very general with no details coming out in the trial Court. Sonabai (P.W. 19) does not make any reference to accused No. 3 Pralhad and admits that she could not see what weapons the assailants were wielding owning to the crowd. Ashok (P.W. 20), the grandson of Devaka, merely says that accused No. 3 Pralhad was there and he had an axe. Then he says that accused No. 1 Pandharinath had an axe, accused No. 2 Prakash had a Musal. He says these persons hit Devaka with axes and spear. He says nothing particularly about the assault by Pralhad of accused No. 3. Laxmibai (P.W. 21) merely says that accused No. 3 had an axe, that accused No. 1 hit Devaka with axe on his head and that two persons hit him with axe, but does not say anything specific about accused No. 3 Pralhad giving blow on the head of Devaka with the axe. Sopan (P.W. 22) merely says that he had seen accused Nos. 1 to 3 and Ratan accused No. 8 assaulting Devaka (P.W. 14). He does not say anything about accused No. 3 Pralhad being armed with an axe or having assaulted Devaka with an axe. Dashrath (P.W. 24) merely says that he had seen accused Nos. 2 and 3 and Ratan and he had seen accused No. 3 hitting Devaka with an axe but that statement in his examination-in-chief is contradicted by his statement in the cross-examination that he had not seen accused No. 3 hitting Devaka with an axe. This is all the evidence on record. We have noticed that the oral evidence is far from consistent, it has serious discrepancies, and infirmities, including the infirmity in the evidence of Devaka (P.W. 14) by reason of his not having mentioned any axe in the hands of accused No. 3 Pralhad or any axe blow by Pralhad, accused No. 3, in the F.I.R., Ex. 48 lodged immediately after the incident. The learned trial Judge has got over this infirmity by explaining that it could be possible that Devaka (P.W. 14) immediately after the assault was in a dazed condition and may not have, therefore, remembered properly the several details of the assault at the time of lodging the F.I.R., Ex. 48. We do not feel that this serious infirmity in the evidence of Devaka could be so lightly got over. Again we find that this very oral evidence has not been accepted by the learned trial Judge in respect of the original accused No. 1 Pandharinath to whom a similar role of assault with axe on the head of Devaka had been attributed. In that view we find it would not be proper to accept that very oral evidence against Pralhad, accused No. 3 more particularly in view of the serious contradiction of Devaka's evidence by the recitals in the F.I.R., Ex. 48. In our view, Pralhad, accused No. 3 would be entitled to benefit of doubt on this point

7. Since we are allowing this appeal the question of enhancing the sentence would not arise.

8. In the result, the appeal is allowed. The convictions and sentences imposed by the trial Court on the appellants are set aside and they shall stand acquitted. Their bail bounds shall stand cancelled. Rule stands discharged in Criminal Revision Application No. 116 of 1980.


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