Allowed

Sarjerao Ramchandra Bhakare v. the State of Maharashtra

Bombay HC12 Sept 2007APEAL/193/1996

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for grievous hurt, the High Court quashed the conviction. The Court held that prosecution witnesses failed to explain serious injuries on the accused and that版车型 evidence suffered from scrutiny and inconsistencies.

What did the court decide?

Conviction and sentence under Section 326 IPC of the accused was quashed and set aside. Appellant released on bail.

Sarjerao Ramchandra Bhakare Vs the State of… — Murder and Culpable Homicide | Bombay HC (2007)

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IN	THE CRIMINAL	HIGH COURT OF JUDICATURE APPELLATE	AT BOMBAY JURISDICTION
	CRIMI	NAL APPEAL NO. 193	OF 1996
Sarjerao	Ramc vs	handra Bhakare	.. Appellant
State of Ma	harashtra	.. Respondent
Mr.Ganesh Appellant Ms.V.R.Bh	onsale	Gole i.b Mr.A.P.Mun A.P.P.for	dargi for Respondent
		CORAM : SMT.RANJA	NA DESAI, J
		DATED : 12th	September, 2007
ORAL			JUDGMENT
1.	The	appellant is original accused	no.1 in
Sessions	case	No.62 of 1991 which was	tried in the
Court	of	the Additional Sessions Judge,	Kolhapur.
The	appellant	was tried along with	three other
accused.		The other accused are ori	ginal accused
nos.	2,3	and 4. For the sake of	convenience, I
shall refer	to the appella	nt and the other accused

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as per their description in the trial.

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2.	The	ac	cused were	charg	ed for	the	offence
punishable		under	section 30	7 re	ad with	section	34
the	IPC	in	the alte	rnative	under	section	307
simplicitor		of	the IPC.	The	accused	were	further
charged		under	section 326	read	with sect	ion 34	of
the IPC in	the alte	rnative un	der section 326 the

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IPC simplicitor.

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3. At the trial, the case of the prosecution was

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as under :

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PW plant	4 Jagannath wanted to behind the house of the	install a accused.	gobar The	gas accused
objected	to it. On 22nd De	cember, 1990	at a	bout 6
p.m.	Jagannath and Rajaram	returned	to	their
village	from Kodoli and were	sitting	near	Benor
office.	Accused no.1 Sarjerao	came there	with	a
chopper,.	Other accused also	came there	with	axes.
Accused	no.1 Sarjerao dealt a	blow with	a	chopper
on the	neck of Jagannath.	Accused no.3	Rajara	m and
accused	no.4 Arjun dealt axe bl	ow on the	head	and
arm	of Jagannath respectively.	Rajaram	tried	to
intervene.	Accused no.2 attacked	with a	stick	on
his	left hand. The accused	ran away.		Jagannath
and	Rajaram were taken to	the Ru	ral	Hospital,
Kodoli.	PW 6 Dr.Thorat ex	amined them	and	referred
them	to CPR Hospital, Kolhapur.	PW	7	Dr.Tiwale
examined	them. He found	incised wounds	on	the
persons	of Jagannath and Rajaram.	PW 5	ASI	Mane
received	letter Exhibit 36 from	the doct	or.	He
went	to Rural Hospital and	recorded	his	report
which	is at Exhibit 24. He	sent the	report	Exhibit
24	with his letter Exhibit	37 to Poli	ce	Station,
Kodoli	through Laxmipuri police	station.	PS	I I.B.
Patil	who was at that time	incharge	of	Police
Station,	Kodoli came to Kolha	pur. H	e	collected
report	Exhibit 24 He	registered o	ffence	at
C.R.No.62	of 1991 at Police	Station, Kodoli.		The
investigatio	n was set into	motion.		After

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completing of the investigation, the accused came

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to be charged as aforesaid.

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4. In support of its case, the prosecution

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examined	as	many	as	8 witnesses.	T	he	prosecution
heavily	relied	on	the	evidence of	PW	4	Jagannath
the	injured	witness	.	The prosec	ution	also	relied
on the	evidence	of	PW	1 Rajaram,	PW	6 Dr.	Thorat and

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PW 7 Dr.Tiwale. The details of the investigation

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have been given by PW 8 PSI. I.B.Patil.

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5.	The	accused denied the prosecution	case.
According	to	the accused, prosecution	witnesses
were	the	aggressors. According to the	accused,
they	suspected	that Jagannath had illicit	relations
with	Hausabai	wife of accused no.4 Arjun.	They
therefore,	asked	her not to go to his field	for
work.	Ther	efore, she stopped going there.	Four
days	prior	to 22nd December, 1990 Jagannath	asked
Hausabai	as	to why she had gone to the field	of
others.	He	then dislodged the bundle of	grass
which	was	on her head and assaulted her.	She
narrated	this	to accused no.1 Sarjerao.	Sarjerao
went	to the	house of Jagannath and asked him	as to
why	he did	so. Jagannath abused him and aske	d him
to go	away	. Sarjerao went away. At the time	of
the	incident,	Sarjerao saw Jagannath, Dada	Jadhav
sitting	near	Benor office. All of them	assaulted

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him with choppers, axe and sticks. H e fell down.

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He was taken to the hospital by his wife.

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After perusing the evidence on record, the
learned Judge was of the view that the prosecution
had failed to prove its case as against accused
nos. 2 to 4. He therefore, acquitted them of all
the offences. The learned Sessions Judge however,

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found	accu	sed	no.1	Sarjer	ao	guilty	of	the		offence
under	section	326	IPC.		He	sente	nced	him	to	undergo
R.I.	for	two	years	and	to	pay	a	fine	of	Rs.500/-

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in default to undergo R.I. for further period of

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four months.

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7. Being aggrieved by this judgment and order,

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accused no.1 herein has preferred this appeal.

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8.	I have heard	Mr.Ganesh Gole, learned	counsel
for	ccused no.1 at so	me length. He submitted	that
the	learned Sessions	Judge erred in convicting	the
accused	on the interested	evidence of PW 1 and	4.
He	submitted that the evid	ence of PW 1 and 4	does
not	inspire confidence.	It is replete with	many
contradicti	ons and	inconsistencies.	These
witnesses	are not consistent	as regards the spot	of
the	incident and as	to the manner in which	the
alleged	assault was made.	He drew my attentio	n to
the	evidence of PW 7	Dr. Tiwale and pointed	out
that	Dr.Tiwale has said	that injury no.1 found	on
Jagannath	cannot be	caused if the injured	was
sitting	facing east an	d the assailant had	dealt
blow	by chopper from his	back from right side.	Mr.
Gole	submitted that	therefore, the pro	secution
story	that Jagannath was	attacked with chopper	from
back	is not truthful.	The learned	counsel
submitted	that PW 1 and	PW 4 have shown ig	norance
about	the injuries suffered	by accused no.1.	There
is	no dispute that	accused no.1 had	suffered
grievous	injuries. The	prosecution has	not
explained	the injuries	sustained by the	accused.

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In	this	connection, he	relied	on the judgment	of
the	Supreme	Court in	Lakshmi	Singh vs State	of
Bihar	AIR	1976 SC	2263.	The learned	counsel
submitted		that therefore,	advers	e inference	needs
to	be	drawn against	the	prosecution.	The

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prosecution has suppressed the genesis of the case

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and therefore the accused should be acquitted.

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9.	Mr.Gole		furt	her	submitte	d	that the	learned
Sessions	Judge		has	acquitted	accus	ed	nos. 2	to 4.
Therefore,	the		learne	d	Sessions		Judge has	not
accepted	the	evi	dence	of	prosecu	tion	witness so	far
as it	perta	ins	to	accused	nos.2	to	4. There	is
therefore,		no		guarantee	tha	t	prosecution	witnesses
are	telling	the	tr	uth as	far	a	s their case	against
accused	no.1		is	concern	ed.		Possibility of	false
implication	ca	nnot	be	ruled	out.		Learned	counsel

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urged that therefore the impugned judgment and

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order needs to be quashed and set aside.

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10. As against this, Ms.Bhosale, the learned A.P.P. submitted that no interference is necessary

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with the impugned judgment and order. She

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submitted that the prosecution case is borne out

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by the evidence of the injured witnesses . Evidence of PW 4 Jagannath is supported by the evidence of PW 1 Rajaram. It is also supported by the medical evidence. The learned Judge has rightly convicted

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the accused. She submitted that therefore the

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present appeal be dismissed.

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11. It must be stated at the outset that that in

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respect of the incident in question, a counter case
was registered on the same day and PW 1 Rajaram, PW
4 Jagannath and one Dada Jadhav were tried in
Sessions case No.146 of 1995 for the offence
punishable under section 326 read with section 34
of the IPC. Jagannath More and Dada Jadhav were
acquitted. But the Sessions Judge convicted
accused no. 2 Rajaram under section 324 of the IPC
and sentenced him to suffer R.I. for 2 years and
to pay a fine of Rs.500/- in default to undergo
R.I. for four months. The appeal preferred by
Rajaram More has been allowed by this Court and

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Rajaram More has been acquitted by giving him the

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benefit of doubt.

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examined PW 4 Jagannath. He found the following

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injuries on Jagannath :

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He also examined Rajaram. He found the following injuries on Rajaram :

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1. 3 cm x 1 cm x 1 cm on the index finger at terminal phalyns and 2nd phalynx with

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suspected fracture of the phhalangial bones of the finger.

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He has stated that injury no.1 was dangerous to

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life.

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In his cross examination, he has stated that all

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the injuries received by Jagannath were grievous
injuries. He had also examined accused no.1
Sarjerao. He found the following injuries on
Sarjerao :

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Incised injury on right scapula with
size 3 x 1 x 1 " suspected fracture of
scapula bone.
2. 3 contused lacerated wounds on right eye
brow 2 horizontal and one vertical on the
lateral and size each 2 cm x 1/2 x 1/2 cm.
3. Incised wound of about 1 cm x 1/2 on
left ear lobule upper side over tragus.
4. Incised injury 3 x 1/2 cm superficial
over left supra scapular fossa.
5. CLW on left lateral eye brow size 1 1/2
cm x 1/2 superficial circular in shape.

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He has stated that injury nos. 1,3 and 4 were dangerous to life and could be caused by chopper article no.1.

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December, 1990 he examined PW 4 Jagannath and found

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the following injuries on Jagannath:

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1. Cut incised wound 6 " x 1 " x 2" on posterior aspect of neck up to left angle of mandible muscle deep.

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3. Cut incised wound 3 x 1 cm on inner aspect of right hand muscle deep.

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Cut incised wound on centre of the
frontal bone 4 x 1 cm.
He has stated that the injuries were caused by a

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sharp object and they were dangerous to life. He

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has stated that he had also examined Rajaram and

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he found the following injuries on Rajaram :

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Cut incised wound over dorsal aspect of
left index finger 4 x 1 x 1 cm.
2. Cut incised wound over dorsal aspct of
left middle finger 4 x 1 x 1 cm.
He has stated that the said injuries could be
caused by a sharp object. He had also examined
Sarjerao. He found the following injuries on
Sarjerao.

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1. Cut incised wound 7x 3 cm on right scapular region muscle deep.

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2. Cut incised wound 2 x 1/2 cm on right

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shoulder.

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3. Cut incised wound 2 x 1/2 cms above right eye brow.

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From the medical evidence, it is clear that
persons from both sides had received injuries and

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injuries were serious. Therefore, some incident

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did take place on 22nd December, 1990.

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15.	The	prose	cution	story		is unfolde	d by	the
evidences	of	PW 1	Rajaram	and		PW 4 Jagan	nath.	PW 1
Rajaram	has	stated	that	Ja	ga	nnath wante	d to	install
a	gobar	gas	plant.	Sa	rj	erao and	other	accused
asked	him	not to	install	the		gobar gas	plant.	On
22nd	Decem	ber, 1	990 at	6 p	.	m. he	and	Jagannath
came	to	Satav.	They	ha	d	to contrac	t labou	rers for
giving	co	ntract	for ex	cavatin	g	the pit.		Accused
no.1	Sarjerao	came	there		w	ith a	chopper.	He

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assaulted on the neck of Jagannath with a chopper.
Accused nos. 2,3 and 4 came there with axes.
Accused no.3 assaulted on the head of Jagannath

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with an axe. Accused no.4 Arjun assaulted on the

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right hand and forearm of Jagannath with an axe.

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accused ran away. Thereafter, he and Jagannath

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were taken to hospital.

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supplementary statement where he had stated that

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they did go to their house before the incident. He

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appears to be anxious to avoid any suggestion that

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they went home to collect weapons.

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PW 4 Jagannath has stated that t wo days prior
to the date of incident he was installing gobar gas
plant behind the house of the accused. Accused
came there and told him not to dig. He has further
stated that on 22nd December, 1990 he and PW 1

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Rajaram had gone to Kodoli in connection with
marriage of his daughter. They returned by about
5.30 p.m. or 5.45 p.m. They were sitting at a
distance of 15 feet from Benor office. Accused
no.1 Sarjerao came from the back to his left side.
He dealt a blow with a chopper on left side of his
neck. Accused no.4 Arjun dealt an axe blow on his
right hand and accused no.3 gave an axe blow on his
head. Accused no.2 Shivaji dealt a blow on the

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fingers of Rajaram. According to him he became

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unconscious.

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In his cross examination, he has stated that
at the relevant time, when the incident took place
he was sitting on the ground about 15 feet away
from Benor office alongwith Rajaram. The accused
came there. Accused no.1 asked him as to why he
wanted to make a pit for gobar gas plant. He
immediately started assaulting him. Accused no.1
attacked him with a chopper from his right side to
left side, while he was standing to his left. An
ommission has been brought on record that he did
not state before the police that accused no. 4
assaulted him on his right hand and wrist. He has
not stated before the police that accused no. 3
gave an axe blow on his head. He has further
stated that at that time he did not see that
accused no.1 Sarjerao was injured and he had a

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bleeding head injury. He did not see accused no.1

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lying there in an injured condition.

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19. It must be remembered that the trial court has

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found that the evidence of both these witnesses is
not worthy of credence in so far as the alleged
involvement of accused nos. 2, 3 and 4 is
concerned. Therefore, this Court will have to be
circumspect while accepting their testimony as
regards involvement of accused no.1. Though they
are injured, it must be examined whether they have

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given an exaggerated account as regards alleged

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role played by accused no.1

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20.	So far as the incident dated 22nd D	ecember,
1990	is concerned, there are descrepencies in	their
evidence.	PW 1 Rajaram does not say that	accused
no.1	had any talk with PW 4 Jagannath whereas P	W 4
Jagannath	has said that accused no.1 did talk	to
him.	While PW 1 Rajaram says that they	were
sitting	on the steps of Benor office, PW	4
Jagannath	states that they were sitting on	the
ground	about 15 feet away from Benor office and	not
on	the steps of Benor office. While PW 1	Rajaram
says	that the accused came from front side	and
accused	no.1 gave blow with a chopper from the	back
of	Jagannath, PW 4 Jagannath does not say tha	t the
accused	came from front side. He says that	accused
no.1	came from back and remaining accused came	from
his	right side. Whereas PW 1 states that	accused
no.1	assulted them when they were sitting PW	4
Jagannath	has stated that he received a blow on	his
neck	when he was sitting and he received other	two
blows	when he was in a standing position. PW	7
Dr.Tiwale	has stated that the incised	injury
received	by Jagannath on his neck cannot be	caused

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if	he wa	s sitting	facing	east	an	d chopper		blow was
dealt	from	his	back	from	right	side.		Therefore,
the	evidence	of P	W 1	and	4	is not	co	nsistent with
medical	evide	nce.	It	is	true	that	eye	witness
account	ov	errides	the m	edical	evid	ence.		However,
in	the	peculiar	facts	and	circ	umstances		of the
case,	in	my	opinion		this	variances		assumes

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importance because eye witness account is not of

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sterling quality.

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21.	PW	1 and PW	4	are undoubtedly	interested
witnesses.		There is	no	independent	evidence
adduced	in	this case.		Credibility of	these
witnesses		is suspect	because	accused no.1	Sarjerao

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had received serious injuries. They feign

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ignorance about those injuries.

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22. I have already stated that	PW 1	Rajaram	has
categorically stated he did not	notice	any	bleeding
injuries on the person of accused	no.1.		Similarly,
PW 4 Jagannath has stated that he	did not	see	any
bleeding head injury received by	accused	no.1.	He
has stated that he did not see	accused	no.1	lying
in an injured condition. PW 6	Dr.Thorat	has	stated
that Sarjerao has received 5	injuries.		The
certificate issued by Dr.Thorat in	respect	of	the
injuries suffered by Sarjerao is o	n record.		It is
at Exhibit 43. Dr.Thorat has	stated	that	injuries
1,3 and 4 were dangerous t	o life.	It	is
inconceivable therefore that PW 1	Rajaram	and	PW 4
Jagannath would not have seen	accused	no.1	Sarjerao
receiving injuries and lying	in a	n	injured

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condition. The prosecution

has not

offered

any

explanation about the serious injuries suffered by

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Sarjerao.

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In this connection, reliance is placed by
Mr.Gole, learned counsel for the accused on the
judgment of the Supreme Court in Lakshmi Singh’s
case supra. In that case, the Supreme Court has
held that if the prosecution does not explain the
injuries on the person of the accused received at
about the time of occurence, or in the course of

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altercation, three inferences can be drawn which

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are as under :

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(a) That the prosecution has sup-presed the
genesis and the original of the occurrence
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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23. Inasmuch as the prosecution witnesses have

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not	explained	the	inju	ries	caused	to the	accused
and	in fact	gone	on	to	state	that they did	not
notice	them	their	evidenc	e	becomes	suspect.	It is
possible	that	they	are	sup	pressing	the genesis	of

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the case. The true facts have perhaps not been

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unfolded by the prosecution witnesses.

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24. It is pertinent to note that no weapon was seized from the accused. At the time of spot

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inspection, chopper article no.1 was found at some
distance from the spot. The clothes were seized.
But, the learned Judge has observed that there is
no evidence as regards blood stains. There is also
no acceptable evidence to establish that the seized
articles were sealed. The Chemical Analyser’s
report therefore cannot be used against the
accused. In any case, the Chemical Analyser’s
report Exhibit 58 shows that blood group of PW 4
Jagannath is A and the chopper article 1 had stains
of human blood of O group. Assuming therefore,

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that chopper article no.1 was used, it cannot be

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said that it was used for assaulting Jagannath.

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It appears that the accused has taken a plea
of right of private defence of his person. I t is
established that some incident did take place
between two sides. It is not clear as to who
assaulted first. But, in the facts of this case,
it is not necessary for me to go into that aspect
of the matter. I am of the opinion that PW 1 and
PW 4 have not proved the prosecution case beyond
reasonable doubt. They have suppressed the genesis
of the case. No doubt, they are injured witness
but the fact remains that their evidence as regards
accused nos. 2 to 4 has been discarded by the
learned Sessions Judge. In my opinion, their
evidence as regards accused no.1 is shaky and
inconsistent. In the facts of this case, false
involvement cannot be ruled out. In anycase the
appellant accused must get benefit of doubt. I am
therefore of the opinion that the conviction and

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sentence of accused no.1 deserves to be quashed and

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set aside.

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Hence, the following order :

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The conviction of accused Sarjerao Ramchandra Bhakare under section 326 of IPC and his sentence to undergo R.I. for 2 years and to pay a fine of Rs.500/- in default to undergo R.I. for further period of 4 months under the judgment and order dated 2nd March, 1996 passed by the Additional Sessions Judge, Kolhapur in Sessions case No.62 of 1991 is quashed and set aside. The accused is on bail. He need not surrender. His bail bonds stand cancelled.

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Appeal allowed.

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(Smt Ranjana Desai, J)

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Rider

¶138

It is also pertinent tonote that PW 8 PSI Patil
has recorded the supplementary statement of PW 3
Sarjerao. In his evidence, PSI Patil has stated
that portion marked A in the statement of Sarjerao
who in his cross examination has been correctly
recorded. In this portion marked A of the
supplementary statement, he has stated that his
statement that Jagannath More assaulted with axe
and Krishna and Dada Jadhav assaulted with sticks
is false.

Sarjerao Ramchandra Bhakare v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sarjerao Ramchandra Bhakare v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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