2011 ALL MR (Cri) 3081
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH )

A.H. JOSHI AND A.R. JOSHI, JJ.

Vikas Bhagwan Pawar & Ors.Vs.State Of Maharashtra

Criminal Appeal No.250 of 2011,Criminal Appeal No.283 of 2010

30th August, 2011

Petitioner Counsel: Mr. R.N. DHORDE,Shri V.R. DHORDE
Respondent Counsel: Mr. V.D. GODBHARLE

(A) Evidence Act (1872) S.3 - Appreciation of evidence - Criminal trial - Rule of "falsus in uno, falsus in omnibus" - Scope and applicability of - Held, the rule of "falsus in uno, falsus in omnibus" has no application in fact and in generality in India - The Court will have to remove the chaff from the grain.

Held, the rule of 'falsus in uno, falsus in omnibus' has no application in fact and in generality in India. The witnesses have a tendency of exaggeration. The witnesses do not possess and are not expected to possess the sharp discretion of being candid and candid alone. They have a tendency of adding spice to make their version more palatable. Therefore, the Court will have to remove the chaff from the grain. [Para 20,21]

(B) Penal Code (1860) Ss.326, 302 - Deadly weapons - Sticks or pipe or iron rods, held, are deadly weapons. (Para 26)

JUDGMENT

A. H. JOSHI, J. :- Heard learned Advocates and perused the record.

2. In all ten accused were tried for offenses punishable under Sections 147, 148, 341 with Sections 149 and 302 with 149, 307 with 149 of IPC.

All accused have been convicted towards all the offenses charged and have been sentenced.

3. In these appeals, the accused have challenged the judgment and order of conviction.

4. Cause of death is "Hypovolumic shock due to compound fracture of upper end of both Tibia and fibula with lower end of humurus leading to cardiorespiration arrest"

5. The prosecution has relied upon eye witnesses, namely, PW No.3 Kuldip Ragde, PW No.5 Dhananjay Hande, PW No.6 Balaji Pandhare, PW No. 10 Bharat Ragade, while other witnesses pertain to other matters pertaining to the investigation.

6. PW No.1 Dr. Ravindra Mali is the medical witness who has conducted the post mortem examination. Other medical witness is PW No.2 Dr.Sanjay Walke and PW No.15 Dr. Vilas Deshmukh. The medical certificates, at Exhs.75, 76 and 77, are proved by Dr.Sanjay Walke and those at Exhs. 123 and 124 are proved by Dr.Vilas Deshmukh.

7. The medical certificates at Exhs. 75, 76, 77, 123 and 124 are not disputed, rather are relied upon by the defence as well. The scrutiny of evidence of these witnesses, therefore, is dispensible.

8. The case rests on testimony of eye witnesses and medical evidence proved by PW No.1 Dr.Ravindra Mali.

Cause of death is "Hypovolumic shock due to compound fracture of upper end of both Tibia and fibula with lower end of humurus leading to cardiorespiratory arrest"

9. The prosecution story that, the accused persons assaulted the deceased and other victims at about 9 a.m. while they were passing through the road adjacent to land Block No.412 owned by the accused persons. The assault was over the cause that on earlier day the victims had taken their bullockcart through the land of the accused persons without any right of passage.

10. Testimonies of PW No.3, PW No.4, PW No.5 are pertaining to the incident and are concurrent on the points, as follows:

(1) They named all ten accused persons having arrived on the scene of offense through the sugarcane crop standing in the field.

(2) Accused Nos. 1 to 5 assaulted the deceased on his knee, legs, back, etc. by weapons such as pipes, rods,etc.

(3) These witnesses attribute use of axe to accused No.4 Dasharath Kale.

(4) PW No.3 uttered that now the victim would not be left alive.

(5) Other assaults are attributed to accused nos. 3, 4 and 5.

(6) Instigation is attributed in the mouth of accused nos. 6 to 10.

11. The evidence of eye witnesses is concurrent on the points, namely, unlawful assembly, assault by certain accused, named by them and instigation by others.

12. It is seen from scrutiny of evidence that the presence of the accused persons is in noway brought into doubt.

Considering respective submissions, fate of the case rests on injuries suffered by the accused / victims.

13. The injuries suffered by Shrikant Ragade, the deceased, are seen from the post mortem report ( Exh.69), in Column No.17 and the testimony of Dr. Ravindra Mali, PW 1, which are as follows:

"(1) Contusion on left arm lower end, transversally placed, which is 3 x 2 cm. There is evidence of fracture of lower end of humerus. Fracture was compound in nature dorsally which is bone penetrating wound of 0.5 x 0.5 cm, caused due to fracture bone. Age of injury was within 12 hours caused by hard and blunt weapon.

(2) Contusion on right side of chest below nipple of 2 x 1 cm. Age of injury within 12 hours, caused by hard and blunt weapon.

(3) Contused lacerated wound on right arm near elbow of 0.5 x 0.2 x 0.2 cm. Age of injury was within 12 hours, caused by hard and blunt weapon.

(4) Abrasion on left hand and wrist joint of 0.5 x 0.1 cm. Age of injury was within 12 hours, caused by hard and blunt weapon.

(5) There are multiple contusions on back, 2 x 3 cm. Age of injury within 12 hours, caused by hard and blunt weapon.

(6) Contusion on right leg below knee joint of 3 x 4 cm. swelling present. There is evidence of fracture of upper end of tibia fibula, which was compound fracture, 2 CLW on anterior surface on leg of 0.5 x 0.5 x 0.9 cm each. Due to fracture bone, edges, bleeding present. Nature of injury was grievous.

(7) Contusion on left leg below knee joint of 3 x 4 cm. There is evidence of fracture of upper end tibia fibula. Age of injury was within 12 hours, caused by hard and blunt object. Nature of injury is grievous."

14. Injuries suffered by PW No.3, which are proved by PW No.2 Dr. Sanjay Walke are at Exh.77, which read as follows:

(1) Abrasion on right knee joint, by hard object within 24 hours. Simple injury.

(2) Blunt trauma left knee joint.

15. On bare reading of the injuries suffered by the deceased Shrikant Ragde, and PW No.3 Kuldip Ragade, sole conclusion which is emerging, and is undeniable, is that:

(a) Neither of the injuries were caused to any amongst the two victims is caused by use of axe which is a sharp and hard weapon.

(b) All injuries are caused on account of hard and blunt object.

16. In this background it is necessary to test submission of the defence, namely:

(a) Though the witnesses have coherently narrated use of axe as weapon of assault by accused No.4, whether their testimonies are truthful ?

(b) Whether the testimonies which are demonstrably to be untrue to the extent of use of axe, should those be discarded in totality ?

17. What we see, upon appreciation of evidence is as follows:

(1) That presence of the accused persons is proved.

(2) Use of weapons weapons such as rod, pipe, etc. is proved.

(3) Instigation by other accused Nos 6 to 10 and all accused persons, i.e. Nos. 1 to 10, being members of unlawful assembly, is proved.

(4) The statements of the witnesses consists of an exaggeration that axe was used by accused No.4 as there are no injuries corresponding to said weapon, yet accused no.4 being equipped with axe is not totally ruled out.

(5) The use of axe as weapon of assault is not proved.

18. The testimonies of the witnesses are brought in shadow of doubt in so far as use of axe is concerned.

19. Next question which falls for consideration at this stage is as to:

Whether the entire testimonies of eye witnesses should be discarded on account of one statement contained therein as to possession of deadly weapon i.e. axe by accused No.4 is to attack as a falsehood or a doubtful version ?

20. The answer to the question posed in the foregoing para has to be in negative.

The rule of 'falsus in uno, falsus in omnibus' has no application in fact and in generality in India. The witnesses have a tendency of exaggeration. The witnesses do not possess and are not expected to possess the sharp discretion of being candid and candid alone. They have a tendency of adding spice to make their version more palatable.

21. Therefore, this Court will have to remove the chaff from the grain. The possibility that the accused no.4 possessed axe at least is proved while its use is not proved.

22. In the result, the Court holds that though axe may be with accused No.4, it was not used from sharp side. Moreover, availability of axe with cultivators is a matter of routine course. Procurement and bringing an axe does not need preparation.

23. This Court has then to see as to what offense is constituted from acts which are proved.

24. Admittedly, as proved by PW No.1, the injuries are below the waist. It is a matter of record that all injuries are on the knee and below. Cause of death is, loss of blood. Death cannot be imminent or propelled due to injuries to knee and below. Injury below waist was not and could not be intended by the accused to result into death. The death is eventually caused than achieved as intended or known to be only consequence.

25. In the result, this Court holds that the injuries caused by the unlawful assembly are not the cause of death nor intended or known to be imminent result of assault, and hence, death, subject matter, is not homicidal.

26. The sticks or pipe or iron rods are, undoubtedly, deadly weapons. The accused are, thus, liable to be held as guilty for commission of offense of causing grievous hurt to deceased Shrikant Ashok Ragde by use of deadly weapon.

In the result, they are guilty of the offense punishable under Section 326 of IPC, and as its corollary, all accused are acquitted of the charge of offense under Section 302 of IPC.

27. In so far as assault on PW No.3 Kuldip Ragade, and injuries are concerned, those are caused by hard and blunt weapon. These injuries, as reflected in Exh.77, and are simple injuries.

The accused are, therefore, liable to be convicted for their act of causing simple hurt to PW No.3 by use of deadly weapon, and are liable and convicted for offence punishable under Section 324 of IPC, and as its corollary, all accused are acquitted of the charge under Section 307 of IPC of attempt to murder of PW No.3 Kuldip Ragade.

28. Conviction of all accused in relation to all other offences deserves to be and is hereby confirmed.

29. In so far as aspect of sentence in relation to offences under Sections 326 and 324 of IPC are concerned, list the case for hearing on the point of sentence.

Ordered accordingly