Allowed

Rajaram Hari Nandurkar v. the State of Maharashtra

Bombay HC12 Sept 2007APEAL/138/1996

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court acquitted an accused originally convicted under Section 324 IPC. The Court held that the prosecution failed to explain injuries sustained by the appellant and found the primary eye-witness unreliable, finding no evidence to prove complicity. Consequently, the impugned conviction was quashed and the appeal allowed.

What did the court decide?

Impugned judgment convicting appellant under s.324 IPC and sentencing him is quashed. Accused is released on bail and bond cancelled.

Rajaram Hari Nandurkar Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2007)

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IN	THE HIGH COURT OF JUDICATURE AT BO CRIMINAL APPELLATE JURISD	MBAY ICTION
	CRIMINAL APPEAL NO. 138 OF	1996
Rajaram H	ari Nandurkar .. Appellant
	vs
State of M	aharashtra .. Respondent
Mr.X.A.Sa	khare, Advocate (appointed)	for
Appellant Ms.V.R.B	hosale, A.P.P.for Res	pondent
	CORAM : SMT.RANJANA P.DESA	I, J
	DATED : 12th September,	2007
ORAL	JUD	GMENT
1.	The appellant is original accused no.2	in
Sessions	Case No.146 of 1995. He was	tried
alongwith	original accused nos. 1 and 3	for
offences	punishable under section 326, read	with
section	34 of the Indian Penal Code. For the	sake

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of convenience, I shall refer to the accused as per

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their status and description in trial.

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2.	By	the	impugned	ju	dgment	dat	ed	2nd	Marc	h,	1996
the	learned		Addition	al	Sessions			Judge		ac	quitted
accused	nos.	1	and	3	for	the	of	fences		pun	ishable
under	section	326	read	with	section		34	of	IPC.		He
however,	co	nvicted	accus	ed	no.2	for		offence			under
section	324	of	IPC	and	sentenced		him	to	under		go
R.I.	for one	yea	r and	to	pay	a	fine	of	Rs.	500/-	in
default	to un	dergo	further		R.I.for	4		months.			Being

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aggrieved by the said judgment and order, accused

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no.2 has preferred the instant appeal.

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3.	The	prosecutio	n	story	as	unfolded	by	PW	3
Sarjerao	is	that	Arjun	R	angrao	and	Shivaji	are	his
brothers.		He kn	ows	all	the	accused.	Acc	used	no.2
is	the	brother	in	law	of	accused	no.1	Ja	gannath.
Accused	no.3	Dada	@	Ra	jaram	is so	n of		accused

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no.1’s wife’s sister. PW 4 Hausabai is wife of

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Arjun.

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4.	The incident in question too	k place on	22nd
November,	1990. About 8 to 10	days prior to	the
incident	in question, Hausabai	had gone	for
agricultural	work in the field	of one R	aghunath.
While	she was returning home with	a bundle of	grass
on	her head, accused no.1 dislodg	ed the bundle	of
grass	which she was carrying.	He abused	and
assaulted	her. He asked her why	she did not	come
to	his field for work. Accordin	g to PW 3	Sarjerao
this w	as disclosed to him by Hausa	bai. On the	same
day,	he went to the house of	Jagannath and	asked
why	he had assaulted Hausabai.	Accused no.1	abused
him.	PW 3 Sarjerao then went	home. On	22nd
December,	1990 at about 6.30 p.m.	he was	sitting
near	Benor office. It was a	weekly market	day.
Accused	no.1 Jagannath and accus	ed no.2	Rajaram
were	sitting on the steps of Ben	or office. He	was
sitting	at a short distance from	there. He	asked
them	why there should be quarrel	between the	two.
He	expressed that it was not pro	per to have	any
quarrel.	There was exchange of	words between	the
two	sides. Accused no.2 Rajaram	stood up, we	nt at
the	back of PW 1 Sarjerao and	attacked him with	a

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chopper on		his	back. Accuse	d n	o.1 had	axe	inhis
hand.	Acused	n	o.3 had a	stick	and acc	used	Krishna
also had	a	stick.	Accused	no.1	Jagannath	dea	lt an
axe blow	on	his	head. Acc	used	no.3 Dada	dealt	a
stick blow	on	his	ear and a	ccused	Krishna	dealt	a
stick blow	on	his	abdomen. He	raise	d a cry.		PW1
intervened	and	rescu	ed him.	The	accused	ran	away.
PW 3	Sarjer	ao	became uncon	scious.	He		regained
consciousness	in	C.P	.R.Hospital, K	olhapur.		He	came
to know	that		he was first	taken	to	hosiptal	at
Kodoli.	In	the	hospital his	FIR	was rec	orded.	It
is at E	xhibit	15.	He was	then	taken	to	Mary
Wanless	Hospital,		Kolhapur and	treated	there.		He
was a	indoor	pati	ent for about	10	days.	On	the
basis of	the	FIR.	lodged	by	PW	3	Sarjerao
investigation	was		set into		motion.		After

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completion of the investigation, the accused came

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to be charged as aforesaid.

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given by PW 8 PSI Ishwar Patil who was at the

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relevant time in-charge of Police Station, Kodoli.

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6.	The	defence	of	the	accused	was	one	of	denial.
According	to	the		accused,	there		was	a	dispute
between	accu	sed no.1		Jagannath	and	P	W	3	Sarjerao

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and his brothers over the installation of a gobar
gas plant. Sarjerao and his brother assaulted
accused no. 1 Jagannath and accused no.2 Rajaram.
Rajaram therefore lodged an FIR against them in

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order to create defence and a false case has been

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filed against them.

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As stated hereinabove, the learned Sessions
Judge acquitted accused nos. 1 and 3 and convicted
accused no.2 for the offence under section 324 IPC
and sentenced him to suffer R.I. for one year and
to pay a fine of Rs.500/- in default to undergo

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R.I. for a period of 4 months. Hence, this appeal

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8. I have heard Mr.Sakhare the learned counsel

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appearing	for	the	appellant-accused	at
considerable	length.	Mr.Sak	hare submitted that	the
learned	Judge has	fallen	into a grave error	in
convicting	the accused	in th	e absence of any	cogent
and	credible evide	nce on	record. Mr.Sakhare	urged
that	in this	case, the	prosecution has failed	to
prove	any motiv	e. In	fact, the learned	Sessions
Judge	has cate	goricaly r	ecorded that accused	no.,2
had	no motive	to assault	Sarjerao as he had	no
enmity	with him.	It was	therefore wrong on	the
part of	the learned	Sessions	Judge to convict	him .
The	learned counsel	further	urged that i	t is
alleged	that the	appellant	used a chopper.	The
discovery	of the cho	pper has	not been proved	as the
panchas	have turned	hostile.	PSI Patil has	in his
evidence	stated that	the	said chopper was	not

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stained	with	blood. Besides, this chopper w	as not
sent to	the	Chemical Analyser for analysis.	In the
circumstances,		the allegation that accused	no.2
used	a	chopper to attack Sarjerao is not	proved.
Mr.Sakhare	fu	rther urged that the evidence	on
record	indica	tes that it is Sarjerao who was	the
aggressor.		He had a chopper in his	hand.
Mr.Sakhare	po	inted out that this fact has	been
noticed	by	the learned Sessions Judge.	He
submitted	th	at it is also pertinent to note	that
accused	no.2	was also injured in the said	incident.
There	is	therefore, ample evidence on record	to
indicate	that	at the most it can be said	that
accused	no.	2 acted in exercise of his right	of
private	defen	ce. The learned counsel then	urged
that	there	is no consistency between the	evidence
of PW	3	Sarjerao Bhakare and PW 4 Hausabai	Bhakare.
This	also	makes the prosecution story	inherently
improbable.		Learned counsel further submitted	that
on the	same	set of evidence two of the accuse	d have
been	acquit	ted. There is therefore, no	guarantee
that	the	prosecution story as regards	the
involvement is tru	thful.	of the present appellant/ accused He submitted that in	no.2 the

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circumstances, conviction and sentence of the

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appellant/accused no.2 deserves to be set aside.

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9.	As	against	th	is,		Ms.Bhosale	,	the	learned
A.P.P.subm	itted	that	the		learned	Sessio	ns	Judge	has
rightly	placed	reliance	on		the	injured	witn	ess PW	3
Sarjerao	Bha	kare.	PW	3	Sarjer	ao had	no	reason	to
falsely	imp	licate	innoc	ent		persons.		PW	3

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Sarjerao’s evidence is supported by the evidence of PW 4 Hausabai. In the circumstances, the learned A.P.P. urged that this Court may not interfere

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with the impugned judgment and order. She

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therefore, submitted that the appeal be dismissed.

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10. Before dealing with the submissions advanced by the learned counsel Mr,.Sakhare, it must be

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stated that in respect of the same incident a

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counter case was registered at the instance of

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accused		no.2	herei	n.	In	re	spect	of the	said
complaint,		PW		1 S	arjerao	Bhak	are	and others	were
tried	in	Ses	sions	case	No.62	of	1991	and PW	1
Sarjerao		was	fou	nd	guilty	of	the	offence	under
section		326	IPC	and	sentenced		to	undergo R.I.	for

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two years and to pay a fine of Rs.500/- in default

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to undergo RI for a further period of 4 months.

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11.	There	can ha	rdly be	any disp	ute that	on	22nd
December,	1990	som	e inci	dent did	take	place	in
which	accused	no.1	Jagann	ath a	nd a	ccused	no.2
Rajaram	and	PW	1 Sarjerao	were	injured.	In	this
connection,	it	is	necessary	to first	refer	to	the
evidence	of	PW 5	Dr.Devdatt	a Tivade	who	was	at the
relevant	time	wor	king in	Mary	Wanless		Hospital,
Kolhapur.	In	hi	s evidence	he h	as stated	that	on
23rd	December,	1990	PW	3 Sarj	erao	Bhakare	was
admitted	in	the ho	spital and	he	has exam	ined	him.
He ha	s also	proved	certificate	Exhibi	t 18	which	was

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issued by him. He noticed following injuries on

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Sarjerao :

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1. On back of right shoulder oblique 3 " in length having 10 sutures.

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3. On left ear on upper cantus 2" in length with 2 sutures.

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12. PW 9 Dr.A.K.Thorat was at the relevant time

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attached to Rural Hospital, Kodoli. He stated that on 22nd December, 1990 at about 10.30 p.m he

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examined PW 3 Sarjerao Bhakare. He has described

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the injuries on Sarjerao as under:

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He has stated that injuries no.1,3 and 4 were

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grievous.

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accused no.1 Jagannath Hari More and found the

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following injuries :

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1. At the level of C2 vertibra on posterior aspect of the neck of the size 13 cms x 2 cms deep starting from 2 cms to the right of the midline and going towards left side of the neck. 2. 7 cms x 1 cm x 1 cm on the ventral

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aspect of the right wrist on the lower and
of radioulner joint.
3. 2 cm x 1 cm x 1 cm on the root of the
right thumb in the line of injury no.2 about
1 cm away from it.
4. 5 cm x 1/2 cm on sigital suture over the
frontal bone. The bleeding was present on
all the injuries.
He has stated that injury no.1 was dangerous to
life. He has further stated that on the same day,

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he examined accused no.2 Rajaram Hari Nandurkar and

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found the following injuries on his person :

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1. 3 cms x 1 cm x 1 cm on the index finger at terminal phalynx and 2nd phalynx with suspected fracture of phalangial bones of the finger.

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2. 3 cm x 1 cm x 1 cm over qst distal phalynx of middle finger with suspected fracture of the phalangial bones.

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He has stated that both the injuries were

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grievous.

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14. From the above evidence, it appears that in the incident in question persons from both sides were hurt. The question is whether in this case the prosecution has proved that the grievous

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injuries on PW 3 Sarjerao Bhakare were caused by

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accused no.2

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15.	At th	e outset,	it	must	be	stated	tha	t	PW 1
Biru	Yeshwant	who	was	exam	ined	as	an	eye	witness
has	turned	hostile.	S	o	fa	r	as	the	alleged
involvement	of	accused	nos.		1	and	2	is	concerned,
the	learned	Sessions	Jud	ge		has	com	e	to the
conclusion	that	the	prosec	ution	has	not		been	able

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to prove its case against them. He	therefore,
acquitted them. In the circumstances, the	evidence
of PW 3 Sarjerao Bhakare will have to be	read
cautiously to find out whether he is a	reliable
witness. It is pertinent to note that in his	cross
examination PW 3 Sarjerao has stated that four	days
prior to the incident in question, he had come	to
know that accused no.1 Jagannath had	assaulted
Hausabai and had asked her as to why she did	not
come to work in his field. According to him,	this
was disclosed to him by Hausabai. He has	stated
that on the follwing day, Arjun, the husband	of
Hausabai returned to the village. He did not	tell
Arjun about the alleged incident. He did not	talk
about it to his brothers Rangrao and Shivaji.	This
conduct is unnatural. It is inconceivable that	a
man would not disclose such a major incident to	any
one particularly to husband of Hausabai who	was
assaulted by accused 1. PW 4 Hausabai has on	the
other hand stated that after this incident on	the
next morning she narrated the matter to	Rangrao
brother of her husband. On that day she	disclosed

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it to PW 3 Sarjerao. Thus, the evidence of

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Sarjerao and Hausabai is not consistent.

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16.	So	far	as the	case	of the prosecut	ion that	a
chopper	w	as	recovered	at	the instance	of	accused
no.2	is	concer	ned ass	uming	it to be	true,	the
alleged	recov	ery	is of		no consequence	as	the
chopper	was	not	blood s	tained.	As per	the	evidence
of	PSI	Patil,	it was	not	sent to	the	Chemical
Analyser.		The	panchas	t	o the discovery	of	the

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chopper have turned hostile. Therefore, this
circumstance does not help the prosecution. In
fact, the use of a chopper by Sarjerao becomes
doubtful. I have already noted that the accused
no.2 was injured and PW 9 Dr.Thorat has stated that
both the injuries received by accused no.3 were

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grievous. The prosecution has not been able to

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explain the injuries suffered by accused no.2.

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In this connection, reference may be made to
the judgment of the Supreme Court in Lakshmi Singh
vs State of Bihar AIR 1976 SUPREME COURT 2263. In
that case, the Supreme Court has examined the
consequences of non- explanation of injuries
suffered by the accused by the prosecution. The
Supreme Court has observed that non-explanation of
injuries sustained by the accused at about the time
of the occurence or inthe course of altercation is

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a very important circumstance from which the Court

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can draw the following inferences :

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(a) That the prosecution has sup-pressed the
genesis and sthe origin of the occurence and
has thus not presented the true version.
(b) That the witnesses who have denied the
presence of the injuries on the person of
the accused are lying on a most material
point and therefore, their evidence is
unreliable.
(c) that in case there is a defence version
which explains the injuries on the person of
the accused it is rendered probable so as to
throw doubt on the prosecution case.

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It is pertinent to note that in the present
case, PW 3 Sarjerao has stated that he did not see
any injuries on accused no.1 Jagannath and accused

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no.2	Rajaram.	He has stated that	he and	his
brothers	did not	assault accused nos.	1 or 2.	He
has	further	admitted that Sessions	case no.62	of
1991	was filed	against him and his	brother on	the
allegation	that	at the time and	place of	the
incident,	they	assauted Jagannath and	Rajaram	and
attempted	to	commit murder	of	Jagannath.
Therefore,	it	is clear that the	prosecution	has
suppressed	the	genesis of the case.	The	grievous
injuries	on ac	cused no.2 are	not	explained.
Considering	the	fact that the eviden	ce of PW	3
Sarjerao	Bhakare	is not found worthy	of relianc	e so
far	as the	involvement of other	accused in	the
instant	crime is	concerned, I find	it risky to	rely
upon	his ev	idence to come to a	positive	finding
about	the comp	licity of accused	no. 2.	His
evidence	does	not inspire confide	nce. It	was
argued	that the	re is no reason	why he	should
involve	innocent	persons. Ordinarily,	I would	have
accepted	this	submission. But, in	the	peculiar
facts	and circ	umstances of the case	where PW	3
Sarjerao	Bhakare	has denied that accu	sed no.	1
Jagannath	and	accused no. 2 Raja	ram had	received
any in	juries whe	n in fact both	had received	serious
injuries	and co	nsidering the fact	that his	evidence
implicating	accused	nos. 1 and 3	is found to	be
unreliable,	the	possibility of	his	falsely
involving	accused	no.2 also cannot	be ruled	out.
There	is no	corroboration to the	case of	the
prosecution	that	accused no.2 is	the person	who
assaulted	Sarjerao	Bhakare. Barrin	g the	interested
testimony	of	Sarjerao, no independen	t witness	has

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supported the prosecution

the

case.

circumstances, in my opinion accused no.2 must get

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the benefit of doubt.

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Hence, the following order :

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The	impugned	jud	gment	and order	da	ted 2nd	March,
1996	passed	by	th	e Additional		Sessions	Judge,
Kolhapur	in Se	ssions	ca	se No.146	of	1995	convicting
the	accused		Rajaram	Hari Nandur	kar	under	section
324	I.P.C.and	sente	ncing	him to und	ergo	R.I.	for
one	year and	to	pay	a fine of	Rs.5	00/- in	default
to	suffer R.I.		for	four months	is	quashed	and set
aside.	Accus	ed	no.2	Rajaram Hari	Nan	durkar is	on

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bail. He need not surrender. His bail bonds stand

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cancelled.

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Appeal allowed accordingly.

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(Smt Ranjana Desai, J)

Rajaram Hari Nandurkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Rajaram Hari Nandurkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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