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2003 Supreme(Bom) 306
2003 (2) Crimes 455
Bombay High Court (DB)
R.G. Deshpande and P.S. Brahme, JJ.
Paduji —Appellant
versus
State of Maharashtra —Respondent
with
State of Maharashtra —Appellant
versus
Sitaram Waman Parkhe Ors. —Respondents
Criminal Appeal No. 14 of 1998 with State Crl. Appeal No. 124 of 1998
Decided on 6-3-2003
Counsel for the parties:
For the Appellant : Mr. M.R. Daga, Advocate.
For the Respondent : Mr. Loney, A.P.P.
Headnote:(i) Indian Penal Code, 1860 — Sections 302 and 324 — Appellant assaulted deceased with axe on head when other four accused were armed with stick in the assault — Trial court accepting evidence of eye witnesses including injured PW 7 convicted appellant but acquitted other four of charge u/s. 302/149, IPC — Appeal — Trial court itself dis-carded evidence of eye witnesses so far as assault by acquitted accused was concerned — Material omissions and contradiction in evidence of
PW 7 — Report FIR did not show that appellant was holding axe and assaulted victim on head — Prose-cution failed to explain how one of the acquitted accused had suffered injuries and despite fact that prose-cution witnesses were prosecuted for that injury — Conviction of appellant could not be sustained — Trial Court rightly discarded evidence of eye witnesses qua acquitted accused.
Held: Thus, in the result, so far as the conviction of the appellant Paduji for assault on the victim and witness Dadarao is concerned, in our assessment the trial Court has committed an error in placing reliance on the evidence of the eye witnesses when their evidence is discarded by the trial Court while considering the case of the respondents for assaulting the victim and witness Dadarao and in the background of glaring omissions in the evidence of witnesses Dadarao and report Exh. 42 in this context, it has also to be borne in mind that the prosecution has not explained as to how the respondent Sunderabai came to be injured at the same time and place of the occurrence. Prosecution has not come out with true story. On the evidence on record, admittedly, the rival story of assault
on respondent Sunderabai stands probable. Prosecution witnesses have audacity to deny even the fact that
the respondent Sunderbai sustained injuries when, admittedly, the prose-cution witnesses, who claimed to be eye witnesses and the victim Vithoba have been prosecuted on the report lodged by Sunderbai and they were facing trial for the same. Therefore, there is no clin-ching evidence to establish involvement of the appellant in commission of assault on the victim Vithoba and witness dadarao. As such, the convic-tion of the appellant Paduji and conse-quent sentence awarded cannot sus-tain. The same deserves to be set-aside. (Para 29)
(ii) Indian Penal Code, 1860 — Sections 302 and 324 — Appellant was tried on charge u/ss. 147, 148, 307 and 302/149, IPC but other accused were acquitted and appellant was convicted u/s. 302/324, IPC — Conviction in absence of independent and alternative charge for those individual offences was erroneous. (Para 15)
Result : Appeal No. 14 allowed. State appeal dismissed.
2. Appellant Paduji s/o Amruta Thombare (original accused No. 1) and the respondents Sitaram Waman Parkhe (original accused No. 2), Sau. Sunderabai w/o. Sitaram Parkhe (original accused No. 3), Balu Sitaram Parkhe (original accused No. 4) and Ranju @ Ranga Sada Thombare (original accused No. 5) were tried before the Additional Sessions Judge, Akola in Sessions Trial No. 204 of 1996 for the offences punishable u/ss. 147, 148, 307 and 302 r/w section 149 of the Indian Penal Code for committing murder of one Vithoba Bhagwan Shingare and for attempt to commit murder of Dadarao (P.W. 7). The learned Additional Sessions Judge, by his judgment and order dated 31st December, 1997, acquitted respondents Sitaram, Sunderabai, Balu and Ranga of the offences with which they were charged with and convicted the appellant Paduji of the offences u/ss. 302 and 324 of the Indian Penal Code and sentenced him to suffer impri-sonment for life and to pay fine of Rs. 2, 500/- in default to suffer R.I. for six months and was sentenced to suffer R.I. for two years and to pay fine of Rs. 1,000/- I/d. to undergo R/I, for three months respectively.
3. Criminal Appeal No. 14 of 1998 has been filed by the appellant Paduji challenging his conviction and sentence, while criminal appeal No. 124 of 1998 is filed by the State of Maharashtra against the respondents challenging the judgment and order acquitting the respondents.
4. While disposing of both the appeals on 6th March, 2003, we have said that the reasons would follow. We are stating the reasons as under:
5. The prosecution case, which gave rise to these proceedings, may be stated, in brief, as follows:
The respondent Sitaram is hus-band of respondent No. 2 Sunderabai, while respondent No. 3 Balu is the son of Sitaram and Sunderabai. The appe-llant Paduji is the uncle of respondent No. 4 Ranju @ Ranga. They are distant relatives of respondent Sitaram. They are resident of village Shirala. Deceased Vithoba Bhagwan was brother of Sahebrao (P.W. 1) Dadarao (P.W. 7), Vijay (P.W. 8) and Raju (P.W. 9) are nephews of deceased vithoba and P.W. 1 Sahebrao. They are resident of village Hiwarkhed. The witness Raju (P.W. 9) was engaged as a labourer by deceased vithoba to graze his sheep and she goats. All these persons are from shepherd community. As such, they stay in camps in different fields where their sheeps and she-goats are engaged for sitting. At the time of occurrence. Sitaram, Sunderabai, the victim vithoba with his wife and others were with their respective sheeps and goats indepen-dently camping in the field of Shivrao Deshmukh of village Tamasi. Prior to the occurrence, respondent Balu had assaulted the witness Raju (P.W. 9) when the quarral took place on account of some sheeps and she-goats, which were grazing, got mixed with sheeps and goats of respondent Balu. therefore, Raju (P.W. 9) went to respondent Sunderabai and complained that her son i.e. respondent Balu assaulted him. However, respondent Sunderabai did not pay any heed to his complaint, but she retorted saying that next day he (Balu) would kill him (Ranga)-Sahebrao, Dadarao, and Vijay came to know about this incident of assault by Balu on witness Raju.
6. On 27.2.1996, Sahebrao, Dadarao and Vijay, in the evening, went to the camp of deceased Vithoba just to settle the differences which arose due to guarrel between Balu and Ranga. They stayed for whole night in the camp of Vithoba. In the morning, at about 7.00 a.m., as per prosecution case, Sunderabai, on seeing Sahebrao, Dadarao and Ranga in the camp of victim Vithoba, gave a call to vithoba expressing that he had called those persons (Prosecution witnesses Sahebrao, Dadarao and Ranga) to assault her. Not only that, but sh
