Shankar Satwaji Harale And Others vs State Of Maharashtra

This Appeal is preferred by the Appellants original accused Nos. 1, 3 and 4 challenging the judgment and order dated 10.05.2013, passed by the

learned Additional Sessions Judge, Kandhar, in Sessions Case No. 24 of 2010, thereby convicting original accused/Appellants for the offence

punishable under sections 436 read with 34 of the Indian Penal Code and sentencing to suffer R. I. for five years each and to pay fine of

Rs.5000/ each. They are further convicted for the offence punishable under section 323 read with 34  of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.1000/Â​ each.

Brief facts of the case may be stated as follows:

i. Accused No.1 Shankar Harale and Complainant PWÂ1 Namdeo Harale are the real brothers. They were residing separately. Their

agricultural lands are adjacent to each other at village Shivni and there was dispute between them on account of boundaries of their respective

land and cultivation of their shares. On 21.05.2009 PWÂ1 Namdeo, alongiwth his two sons, went to Tahsil Office, Loha to attend the proceeding

instituted against him. His wife PWÂ3 Dhondubai and daughterÂinÂlaw PWÂ4 Kanupatra were present in the hut situated in their land. At

about 05.00 p.m.  all the accused entered into the land of the complainant Namdeo and because of the old dispute, they started to abuse

PWÂ​3 Dhondubai and assaulted her by giving kick and first blows and pushed her, due to which Dhondabai sustained injuries on her forehead.

Accused persons set fire to the hut of the complainant. One Jaywant Harale (PWÂ7) and Shaikh Osman Maheboob(PWÂ5) separated theÂ

quarrel. Then, at about 10.00 p.m. the complainant and his sons returned back to their hut and found that it was burnt.  Dhondubai has

narrated the incident to her husband. On 22.05.2009, the complainant, alongwith his wife Dhondubai, went to the Police Station, Loha for lodging

the complaint. Police Station officer referred the PWÂ3 to          Medical Officer for her medical examination.  ii. On

25.05.2009, on the basis of the complaint lodged by the complainant PWÂ1 Nandeo, offence came to be registered against the appellants and other

accused person. During investigation, the Investigating Officer PWÂ09 Mr. Kolekar, P.I.  recorded the statements of witnesses and visited

the the spot and prepared spot panchanama after carrying out as usual investigation and submitted the charge sheet.

iii. In order to establish the charges levelled against the appellants, the prosecution has examined in all nine witness as under:

(1) PW-1 Namdeo Satwaji Harale complainant

(2) PWÂ​2 Shaikh Mainu Shaik Ibrahim, Panch witness of spot panchanama,

(3) PWÂ​3 Dhondubai w/o Namdeo Harale, eye witness and injured wife of the complainant,

(4) PWÂ​4 Kanopatra wife of Narayan Harale, eye witness and daughterÂ​inÂ​law of the complainant,

(5) PWÂ​5 Shaikh Osman Shaikh Maheboob,

(6) PWÂ​6 Raghunath Rathod, PSO who has referred Dhondubai for medical examination, Â

(7) PWÂ​7 Jaywant Harale, brother of complainant as well as accused No.1 and the eye witness,

(8) PWÂ​8 Dr. Dattarao Mirzapure who examined PWÂ​3 Dhondubai,

(9) PWÂ​9 Govardhan Kolekar, P.I. and the Investigating Officer. No defence evidence is adduced on behalf of the appellants accused.

iv. After recording the evidence and conducting full fledged trial, the trial Court convicted and sentenced the accused for the offence as

aforestated. Hence this Appeal by the accused persons.

I have heard arguments of Mr. Sachin Deshmukh, learned counsel for the appellants and Mr. K. D.Munde, learned APP for the State.

Mr. Deshmukh, during his argument, submitted that there was dispute between the parties in respect of landed property and because ofÂ

that, the accused persons are implicated in the false case. Secondly, he argued that there is inordinate delay caused in filing of the complaint

which has not been at all explained by the prosecution. As against this, learned APP submits that there are eye witnesses to the incident. Besides

the oral evidence of PWÂ3 Dhondubai and PWÂ4 Kanupatra, there is evidence of independent witnesses namely Shaikh Osman Mahboob PWÂ‐

5. According to the learned APP, from the record it appears that the complainant and his wife went to the Police station, immediately on the next

day in the morning and the police has referred injured Dhondubai for medical examination as per letter Exh. 43. So, according to the learned

APP, the delay is selfÂexplanatory which can be seen from the evidence on record. Considering the rival submissions of both the parties, it is

necessary to go through the evidence of each of the witness.

PWÂ1 Namdeo has no direct knowledge about the incident. He and his two sons, on the day of incident, went to Tahsil Office at loha and

returned to their Hut at 10.00 pm. At that time they came to know about the burning of their Hut. Looking to the evidence of PWÂ3 Dhondubai,

she deposed that, she and Kanupatra were in the hut. Accused No.3 Vivek pelted stone a towards her prior to sunset. It hit on her head and she

sustained injury.  Shankar and Parvati ( Accused Nos. 1 and 4) were with him. Parvati also pelted stone towards her daughter inÂlaw

and and it hit her thigh. Shankar  stated to  others to set fire to their hut. Then Parvati accused No.4 set fire to the hut. Â

Household articles were burnt in the fire. She further stated that one Shaikh Osman Maheboob (PWÂ5) saw the incident.   Thereafter, on

the next day, they went to the Police Station, on which the Police sent her to the Doctor for medical treatment. Doctor examined her and gave

treatment.

Evidence of PWÂ4 Kanupatra Harale is consistent with the oral evidence of PWÂ3 Dhondubai. She also deposed that the accused came

there and accused Shankar stated others to set fire to their Hut, Vivek pelted stone towards her motherÂinÂlaw which hit on her head and accused

no.4 Parvati  set their hut on fire.

On minute scrutiny of evidence of PWÂ3 and PWÂ4, it appears that  it is consistent with each of the aspects of particular acts

committed by the accused persons i.e. accused nos. 1, 3 and 4.  Witness Jaywanta Satwa Harale (PWÂ7) is also examined on the same point,

who deposed that accused no.1 and his wife set fire the hut and Shankar's son pelted stone towards Namdeo's wife whereby she sustained injury

on her head. Evidence of PWÂ7 appears to be in the form of improvement to some extent and   during the cross examination, he has

admitted about certain omissions that he stated before the police that Shankar's son threw stones towards Parvati and she sustained injury on

her head. But it is not written accordingly in his statement.  So, there is some improvement and some omissions in the evidence of PWÂ7

Jaywant Harale. However, looking to the evidence of PWÂ3 and PWÂ4, it is crystal clear that evidence of PW4 is in the form of corroboration

to the evidence of PWÂ3. Besides that, witness to the incident is examined on behalf of prosecution i.e. Shaikh Osman Maheboob (PW5) who

deposed that he was collecting waste fodder at about   5.00 p.m. near soil embankment (dhura) of Namdeo. He saw that Â

Namdeo's hut was burning and his family members were weeping and shouting. He saw three men and one woman near Namdeo's hut. They were

going away from Namdeo's hut. Namdeo's wife Dhondaubai was weeping. Namdeo's daughterÂinÂlaw and other members in his family too

were weeping.   He also deposed about the presence of Jaywant PWÂ7 at the relevant time at the spot of incident. This witness has not

named the persons who were seen going away from Namdeo's hut. However, the fact remains that he witnessed the incident of burning of the

hut.

Furthermore, from the evidence of Panch witness PWÂ2 Shaikh Mainu Shaikh Ibrahimsab, it appears the spot panchanama was

prepared on 26th May, 2009 and this witness found that hut was totally burnt. Contents of spot panchanama Exh.26 are proved by the oral

evidence of PWÂ2. From the contents of spot panchanama, it appears that hut was totally burnt and household articles were lying scattered

there and some of the articles were half burnt. This evidence, if read with evidence of PWÂ3 and PWÂ4, is sufficient to show that accused persons

have burnt the hut in furtherance of their common intention and committed offence. Particularly accused No.1 Shankar instigated the other accused

to set fire the hut and accordingly accused No.4 Parvati set fire the hut and Vivek accused No.3 assaulted PWÂ3 Dhondubai. There is

corroborative evidence in the form of medical evidence and it is seen from the oral evidence of Dr.  Dattaram Mirzapure. Police

referred   PWÂ3 Dhondubai to him by letter Exh. 43 for medical examination. He examined Dhondabai and found following

injuries.

(1) CLW over left left side of forehead size 3 x 1 cm

(2) Contusion on lower 1/3d of left leg size 4x 2 cm.

(3) Contusion on left side of back size 3 x 2 cm

(4) Contusion on right maxillary area size 2 x 1 cm Witness Dhondabai was examined on 22.05.2009 at about 10.30 a.m. and the incidentÂ

took place at about 6 to 7 p.m. of  21.05.2009 and age of injuries is mentioned  as caused within 24 hours.

Medical examination exactly supports the case of the prosecution that PWÂ​3 received injuries due to assault by the accused No.3.

Mr. Deshmukh, the learned counsel for the appellants was repeatedly harping on the point of delay in filing the first information report or the

complaint. From the record, it appears that the complainant as well as his wife PWÂ​3 Dhondubai are illiterate persons. From the oral evidence of

PWÂ6 Rathunath Rathod, PSO, it appears that he recorded the complaint of PWÂ1 on 25/05/2009 and in the cross examination, he has

admitted that complainant and his wife had been to the Police Station on 22.05.2009 and he sent  PWÂ3 Dhondabai to the Hospital for medical

examination. He further stated in the cross examination that he did not record her complaint as she did not came back to the Police Station.Â

So, from the record Exhibit 43 i.e. letter referring PWÂ3 to the Hospital coupled with admission given by PWÂ6 Rathunath Rathod, it reveals

that the complainant as well as injured Dhondubai went to the Police Station in the morning and PWÂ6 Rathunath Rathod referred her for

medical examination to Dr. Mirzapure. From the contents of letter Exh. 43, it appears that PWÂ3 Dhondubai informed to the PSO that she

was beaten on her forehead and therefore PWÂ6 has referred PWÂ3 for medical examination.  PWÂ3 is an illiterate ledy. However,

there was total negligence on the part of PWÂ6 Rathod, PSO to take the complaint into writing but simply he has referred referred the

injured for medical examination and waited for arrival  of complainant and injured to the Police station for the purpose of recording

complaint.

Looking to the above aspects it appears that there was total negligence on the part of police officer who was incharge P.S.O. at the relevant

time. From the record, it appears that some information was also given by PWÂ3  to the PSO, however, he has not taken care to record

the statement either of the complainant or injured PWÂ3 Dhondubai. From the record, it appears that complaint was registered on 25.05.2009 after

medical treatment is over. So, looking to this aspect, I do not think that practically there was delay in filing the first information report. In view

of the above aspects, I do not think that the accused persons are falsely implicated because there is sufficient evidence to show that hut was

burnt and the PWÂ3 was injured in the incident. Oral evidence of PWÂ3 and PWÂ4 is supported with the oral evidence of panch witness as

well as evidence of Medical Officer Dr. Mirzapure.

I have gone through the reasons recorded by the trial court and found that he has correctly assessed the evidence on record and has rightly

convicted the accused persons. Â

In the light of above discussion, I am of the opinion that there is no merit in the Appeal. The Criminal Appeal stands dismissed.

Bail Bonds of the Appellant stands cancelled.  The appellants shall forthwith surrender before the trial Court to undergo remaining

sentence. The Appellants accused be given setÂ​off, if any, vide section 428 of the Criminal Procedure Code.