CRIMINAL APPEAL NO. 1317 OF 2002

19th November 2019

Petitioner Counsel: C. G. Gavnekar G. S. Hiranandani Ashutosh C. Gavnemar
Respondent Counsel: Ms. P. N. Dabholkar
Act Name: Indian Penal Code, 1860

HeadLine : Penal Code, 1860 -- Ss. 323, 324, 147 – Assault and rioting – Proof - Evidence not leading to guilt of accused - Effect
Allegation of pelting stones causing injuries - Witness testimonies embellished - Medical evidence secured by injured witnesses from hospital where they worked, so unreliable - Benefit of doubt - Evidence not leading to guilt of accused

Section :
Section 37(1) Indian Penal Code, 1860 Section 135 Indian Penal Code, 1860 Section 147 Indian Penal Code, 1860 Section 148 Indian Penal Code, 1860 Section 149 Indian Penal Code, 1860 Section 307 Indian Penal Code, 1860 Section 323 Indian Penal Code, 1860 Section 324 Indian Penal Code, 1860 Section 336 Indian Penal Code, 1860 Section 452 Indian Penal Code, 1860

Cases Cited :

JUDGEMENT

1. Eight persons were charged with offences under Sections 147, 148, 307 r/w 149 & 323 read with 149 of IPC. In Sessions Case No. 192 of 1997, the Additional Sessions Judge of Raigad, Alibag, through judgment, dated 21 November 2002, acquitted all the accused of the offences under sections 147, 148, 307 r/w 149 of IPC. Except the first accused, all others were acquitted of the offence under section 323 of IPC as well. But the third and the fourth accused were convicted of the offence under section 324 of IPC: they were sentenced to pay a fine of Rs. 1000 or to undergo RI for one month, in default. The first accused, however, was convicted of the offence under section 323 of IPC: he was sentenced to pay fine of Rs. 500 or to undergo RI for 15 days.

Accused Offence(IPC) Sentence
Accused No.1 Sec.323 Fine of Rs.500/-; in default, RI for 15 days.
Accused No.3 & 4 Sec.324 Fine of Rs.1,000/- each; in default, RI for one month.

2. Aggrieved, the accused 1, 3 and 4 have filed this criminal appeal.

Facts:

3. As per the prosecution, it was the day of Ganapati immersion. First, one group of people reached the temple, kept their idols on display, performed puja before immersing the idols. Then another group came and did the same. Both the groups comprise relatives, though. As a part of the idol immersion, the second group, the group of accused, set off fireworks. In the frenzy of fireworks, the accused group did not pay heed to the other group’s plea that it would damage the nearby property.

4. To detail, I may note when Ashok Mhatere, the first accused, was about to set off a chain of firecrackers, Gajanan Patil, PW 1, wanted him not to because his son’s scooter stood parked nearby. Ashok Mhatere did not listen; instead, he beat Gajanan Patil: he gave him “fist and kick blows.” Then, Maruti Patil, that is PW2, and his son tried to intervene. In the meanwhile, other accused joined the fray. They allegedly brought weapons such as knives and clubs from their houses and assaulted people of the first group. The fracas finally concluded in stone-pelting on either side, and that has resulted in injuries. Ruckus out of a ritual; solemnity descending into a slugfest.

5. When the accused group left the place, the injured went to the police station, lodged a complaint, and then went to the hospital for treatment: first to PHC at Pezari, later to Civil Hospital at Alibag.

The Trial:

6. There were eight accused; they were all charged with the offences under Sections 147, 148, 149, 307, 452, 336, 324, 323, 37(1), 135 of IPC. They were tried in Sessions Case No. 192 of 1997, by the Additional Sessions Judge of Raigad, Alibag. But they were tried only for the offences under Sections 147, 148, 307 r/w 149 & 323 read with 149 of IPC. Through judgment, dated 21 November 2002, only accused Nos.1, 3 and 4 were convicted; others were acquitted. The conviction was under Section 323 (A1) and Section 324 (A3 & A4).

7. The trial Court has framed the following points for its consideration and found as follows:
Points Findings
Has the prosecution proved that on 11.09.1997, the accused formed an unlawful assembly and, in furtherance of their common objective, assaulted Prakash Patil, Pradeep Patil, Maruti Patil, with an intention to murder them, thus committing an offence under Sec.147 of I.P.C? No
Have the accused been armed with deadly weapons? No
Has the prosecution proved that the accused, as members of unlawful assembly, attempted to murder Prakash Patil, Pradeep Patil, and Maruti Patil, thereby committing an offence under Sec. 370 r.w. 149 of IPC? No But Accused 3 & 4 are guilty of offence under S.324 IPC.
Has the prosecution proved that the accused, as members of unlawful assembly, voluntarily caused hurt to Kusum Patil, Ankush Patil, and Gajanan Patil, thus committing an offence under Section 323 r.w. 149 of I.P.C. No But Accused No.1 is guilty of offence under S.323 IPC.

8. Under the above circumstances, the accused Nos.1, 3 and 4 have filed this appeal.

9. Heard Shri C. G. Gavnekar, the learned counsel for the appellants; and Ms. P. N. Dabholkar, the learned APP for the prosecution.

Discussion:

10. To begin with, all the eight accused were charged with offences under Sections 147, 148, 149, 307, 452, 336, 324, 323, 37(1), 135 of IPC. They were, however, tried only for the offences under Sections 147, 148, 307 r/w 149 & 323 read with 149 of IPC. Accused Nos.2 and 5 to 8 were acquitted. And accused Nos.1, 3 and 4 were convicted.

11. The trial Court has found that the clash erupted on the spur of the moment. So it has ruled out any offence under Section 147 of I.P.C. (rioting). The trial Court has also disbelieved that the accused armed themselves with any deadly weapons. Given the nature of offence, the trial Court—rightly, I reckon—has discounted the value of the panchanama and the articles recovered from the house of the first accused. But it has found the appellants guilty of the offences under Section 323 (A1) and Section 324 (A3 & A4).

12. In this context, the appellants’ counsel argues that it was a congregation of devotees at a temple; it was a solemn occasion: Ganesh immersion. Whatever fracas that has occasioned, it involved both the groups. It was more a melee with jostling around. None came prepared to have a quarrel; much less has anyone carried weapons to inflict injuries on others.

13. I may, in the context of the quarrel, observe that the people comprising both the groups are relatives. They have had no prior enmity. When tempers frayed, they indulged, it seems, in body pushing. True, there is an allegation that the accused pelted stones at the victims’ group. But I see no concrete evidence emerging on that count.

14. Indeed, the trial Court did notice that during the trial the prosecution witnesses indulged in improvements and embellishments to their basic allegations as set out in the FIR. Nor has the trial Court ruled out that a few persons in the accused group, too, sustained injuries, minor as they were. If we touch upon the medical certificates the prosecution witnesses produced, the appellants’ advocate argues that some of the witnesses, who were allegedly injured, themselves work in the hospital from which they secured those certificates. The accused did confront the doctor, in the cross-examination, that he had displayed an element of bias in issuing the wound certificates to the witnesses, though the wounds were either non-existent or minor, attracting no offence. The doctor denied, however.

15. Among all the witnesses examined, barring the official ones, only PW5 is said to be an independent witness. But he too claimed to have been injured. In the cross-examination, he has admitted that he belonged to the “group of Maruti Patil and used to remain in his company for reciting Bhajan.” Indisputably, on the day of Ganesh immersion there was a congregation of over 100 people. Not all of them were involved or interested in the outcome of the crime. Yet the prosecution has not examined anyone unconnected with the crime. All the witnesses are either relatives or those that were part of the fracas. Granted, being relatives or being part of the scuffle or skirmish is no disqualification to depose, nor does it discount the veracity of their evidence. But the prosecution did have the opportunity of examining persons who were disinterested, but it did not.

16. The alleged incident took place in September 1997. The trial concluded in 2002, when the judgment was delivered. From then on, until now, for seventeen years, the appeal petered on. The then middle-aged participants in the Ganesh immersion have now become old. And the inflamed passions that led to the melee might have cooled by now. The Damocles sword of pending judicial proceedings has hung too long over the heads of the accused. Now, the case craves quietus.

17. The trial Court has found that “the prosecution has established that Ganesh Mhatre has assaulted Maruti Patil and Pradeep Patil, while Sanjay Mhatre assaulted Prakash Patil”. But in the circumstances I have narrated above, I reckon that conclusion does not inspire confidence; nor can I say that the prosecution brought home the appellants’ guilt beyond reasonable doubt. So I hold that they are entitled to benefit of doubt.

Result:

As a result, I hold that the trial Court has erred in convicting the appellants. Consequently, I set aside the impugned judgment, dt.21.11.2002, rendered by Addl. Sessions Judge of Raigad at Alibag, and acquit all the three appellants.

Appeal allowed