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2013 Supreme(Bom) 182
In the High Court of Bombay at Goa
V.M. KANADE & U.V. BAKRE
State
Versus
Prakash Wadar & Another
Criminal Appeal No. 75 of 2010
Decided on : 23-01-2013
For the Appellant: Mahesh Amonkar, Additional Public Prosecutor.
For the Respondents:Arun Bras de Sa with Siddhesh Shet, Advocates.
Headnote:CRIMINAL PROCEDURE CODE, 1973 - Section 378. - Appeal against acquittal - Trial Court acquitted charged for offence under Sections 307, 323, 427, 447 and 504/34 of IPC - Contention that impugned judgment and order of trial Court suffers from perversity of there is more than sufficient evidence on record to prove guilt of both accused beyond reasonable doubt and offence under Section 307, IPC is proved by prosecution - Evidence of eye-witnesses as to incident cogent, consistent and reliable having a ring of truth involving both accused - Trial Court taken hyper-technical approach by attaching importance to some minor inconsistencies and infirmities and to trivial details - Trial Court committed gross error in totally discarding prosecution evidence - Failure of prosecution to prove motive on part of accused makes no difference as case not based solely on circumstantial evidence - Evidence on record, beyond reasonable doubt proves that both accused assaulted PWs and committed mischief by damaging scooter, wooden fencing and grills of entrance of house of PW - However Section 307, IPC not attracted to facts and circumstances of case and evidence on record not sufficient to prove offence under Section 504, IPC - Impugned judgment and order of trial Court quashed and set aside - Respondents accused held guilty and convicted under Sections 323, 325, 427 and 447/34 of IPC and sentenced - Appeal partly allowed.
U.V. Bakre, J.
1. This is State appeal against acquittal.
2. Both respondents were the accused persons in Sessions Case No. 16 of 2007. The said case was culmination of a charge sheet filed by Curchorem Police against the accused for offence punishable under Sections 447, 307, 323, 427, 504 read with Section 34 of the Indian Penal Code (I.P.C., for short).
3. Case of the prosecution, in short, was that on 10/06/2006 at about 18.30 hours at Guddemol, Sanvordem, Sanguem, Goa, the accused persons in furtherance of their common intention criminally trespassed into the courtyard of Smt. Sapana Desai, armed with wooden danda and bamboo danda and damaged the scooter bearing no. GA-02/E-0740 belonging to her, assaulted her husband namely Ganaba Desai with the said dandas on his head with intention to kill him and thereby causing grievous injuries to him and when Smt. Sapana and her son Gangesh Desai intervened to help Ganaba Desai, they were also assaulted and they sustained simple injuries and the accused also abused them in filthy words as 'chedyechya', etc.
4. In order to prove the charges, the prosecution examined altogether 17 witnesses. PW.8 Smt. Sapana Desai had lodged the oral report which is at Exhibit 36. Offence was registered at 03.00 hours, on the same day. PW.7 Shri Ganaba Desai is the husband of PW.8. PW.9 Mrs. Nirmala Naik is the neighbour of PW.7 and PW.8 whereas PW.5 Anirudh Manerkar is the son of PW.9. PW.13 Gangesh Desai is the son of PW.7 and PW.8. PW.11 Mr. Ronny Yohan is one of the boys, including PW.5 and PW.13, who were playing football on the ground and had gone to the spot after hearing shouts. All the above six witnesses are eyewitnesses. PW.14 Dr. Vinod Naik had examined PW.7 and PW.13 at P.H.C. Cacora-Curchorem, between 7.30 to 8.15 p.m. on 10/6/06. The hurt certificates are at Exhibits 51 and 52. PW.16 Dr. Jorson D'Costa had subsequently, on the same day, examined PW.7 at Goa Medical College Hospital in the Neuro Surgery Department. The medico-legal certificate is at Exhibit PW.12/A. PW.1 Shri Vishal Gadhe had given his motorcycle to PW.13, for taking his father to hospital. PW.2 Dr. Clare D'Mello did the blood grouping of PW.7. The certificate of blood group is at Exhibit 17. PW.3 Shri Vishwas Ghate is one of the panch witnesses for the panchanama of scene of offence/sketch (Exhibit 20). PW.4 Shri Manjunath Wadar is one of the panch witnesses for the panchanama (Exhibit 23) of attachment of clothes of PW.5 and PW.9. PW.6 Shri Tulshidas Naik is one of the panch witnesses for the panchanama (Exhibit 29) of attachment of clothes of PW.7. PW.10 Santosh Naik acted as one of the panch witnesses in the panchanama of recovery of danda at the instance of accused no.1. This panchanama is at Exhibit 40. Lastly, PW.12 Shri Vincent Paes, PW.16 Shri Ashok Desai and PW.17 Shri Gurudas Kadam are Investigating Officers.
5. The case of the accused persons was of denial simplicitor. They did not examine any witness in their defence.
6. Upon minute assessment of the entire evidence on record, the learned Additional Sessions Judge -II, South Goa, Margao (trial Court, for short) was of the view that there are many inconsistencies in the deposition of the eye witnesses due to which it is difficult to believe their versions. The learned trial Court held that the recovery of the weapons at the instance of accused no.1 is not reliable since the same was done almost after a month from the date of occurrence of the incident; identification of the said dandas was not reliable; the dandas were not sealed; and no blood stains were detected on the said weapons. The trial Court found that PW.17 has admitted that in the hurt certificate of PW.7 issued from the Casualty Department of Goa Medical College, it is recorded that it was a case of history of assault by unknown persons. Therefore, the trial Court has observed that if it was known that accused had assaulted PW.7, it is not understood why it was recorded as a case of as
