The gist of the oral report (Exhibit 36) is that the accused is one of the three brothers of Bhojram Bharre (P.W.1).The ancestral agricultural land is partitioned between the four brothers.However, the well is common.The informant and some other labours were working in the field.P.W.1 fell in the well and the accused lifted the stones near the well and threw them::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 3 apeal282.14 at P.W.1, who shouted for help.P.W.8 and other rushed to rescue P.W.1 and were threatened by the accused with stones.th ORAL JUDGMENT :The appellant is aggrieved by the judgment and order dated 15-4-2014 rendered by the learned Additional Sessions Judge, Bhandara in Sessions Trial 15/2012, by and under which the appellant- accused is convicted for offence punishable under Section 307 of the::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 2 apeal282.14 Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.1,000/-.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::Heard Shri R.P. Joshi, learned Counsel for the accused and Shri V.P. Maldhure, learned Additional Public Prosecutor for the respondent-State.3. P.W.8 Vimal Bharre lodged oral report at Andhalgaon Police Station on 18-12-2011 to the effect that the accused pushed her husband in the well and assaulted him with stones.P.W.1 started the motor pump installed in the well to water the crops.At 11-30 a.m. the accused arrived at the scene and accused P.W.1 of tampering with the pipe of his motor pump and of having thrown the starter in the well.P.W.1 denied the allegation.A verbal altercation ensued.P.W.1 was peeping in the well when the accused pushed him from behind.Villagers and the labours working in the field rescued P.W.1 from the well.P.W.1 suffered injuries to leg, waist and thighs.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::On the basis of the oral report (Exhibit 36) and printed first information report (Exhibit 38) offence punishable under Section 307 of the IPC was registered against the accused.Investigation ensued, upon completion of which charge-sheet was submitted in the Court of Judicial Magistrate First Class, Mohadi, who committed the proceedings to the Sessions Court.The learned Sessions Judge framed charge (Exhibit 10).The accused abjured guilt and claimed to be tried in accordance with law.The defence of the accused is of total denial.It is also suggested to the prosecution witnesses that P.W.1 fell in the well accidentally.The learned Counsel for the accused Shri R.P. Joshi would submit that the prosecution has not excluded the possibility of an accidental fall.He would further submit that even if the evidence of the prosecution is accepted at face value, the ingredients of Section 307 of the IPC are not established.The intention or knowledge is not borne::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 4 apeal282.14 out from the evidence on record, is the submission.He would emphasize that concededly, the water depth in the well was only four feet.The common well was used by all the four brothers.Both, P.W.1 and the accused were well aware of the water depth.The evidence on record does not suggest that P.W.1 was under any threat of drowning.This is not even the prosecution version, is the submission.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::In the case at hand, eyewitnesses to the incident, who are believed by the learned Sessions::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 5 apeal282.14 Judge and I do not see any reason to take a contrarian view, rule out the possibility of an accidental fall.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::When P.W.1 went near the well to check why the pump was not working and was peeping in the well, the accused pushed him into the well and pelted stones.P.W.1 shouted, he sustained injuries to waist shoulder and thigh and fell unconscious.Maroti, Bandu, Tulshiram, Moreshwar, Bandu, Chudaman and Beniram rescued P.W.1 lowering a cot inside the well on which P.W.1 sat and was pulled out from the well.Before pushing P.W.1 in the well, the accused accused him of throwing the starter of his pump in the well.P.W.1 is subjected to intense cross-examination, a major portion of which is directed to bring on record the inimical relationship between P.W.1 and the accused.Few minor and insignificant omissions are brought on record, which do not dent the core of the testimony.A suggestion is given that P.W.1 fell in the well accidentally, which suggestion is denied.The testimony of P.W.1 is corroborated by Maroti Bharre::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 6 apeal282.14 (P.W.2) who was working in the field as a labour.In the cross- examination, he suggested that he did not witness the incident since he was standing at a distance of 500 feet from the well.The suggestion is denied and P.W.2 volunteers that he was at a distance of hardly 10 feet from the well.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::9. P.W.3 Dr. Uday Chaudhary issued injury report (ExhibitP.W.3 states that he noticed the following injuries on the person of P.W.1 :1)two abrasion left buttock size 3 cms x 2 cms and 2 cms x 2 cms respectively.2)lacerated wound over thigh left posterior aspect size 5 cms x 0.5 cms.X 0.05 cms.3)abrasion over left thigh, lateral aspect size 3 cms x 3 cms reddish.4)abrasion over left thigh just above the left popliteal fossa size 4 cms x 2 cms reddish.5)lacerated wound left popliteal fossa of size 1 cm x 0.05 cm x 0.05 cm.6)abrasion over left calf, lateral side of 7 cms.X 2 cms.7)abrasion over right buttock 2 cms x 2 cms.8)contusion over back right and left middle third 5 cms x 4 cms reddish.Patient complaint of pain in low back, but no visible injury.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::10. P.W.4 Suresh Misar has proved the spot panchanama (Exhibit 23) which reveals that the depth of the water was four feet.He is an eyewitness.Nothing is elicited in the cross-examination to dent the credibility of witness.The omissions brought on record are duly proved by the defence.13. P.W.7 Dr. Dinesh Kuthe is examined to prove that P.W.1 suffered fracture of L-2 vertebra with 30 percent compression.He has proved injury report (Exhibit 34).Nothing is elicited in the cross-examination to destroy the credibility of the witness.Suggestions are given to bring on record the strained relationship.The witness admits the strained::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 8 apeal282.14 relationship.However, as is well known, strained relationship can either be a motive for the false implication or a motive for the crime.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::Having given anxious consideration to the evidence on record, I have no hesitation in recording a finding that the accused pushed P.W.1 in the well.In the teeth of the eyewitness account, the defence of accidental fall in the well is not probablised.However, I find substantial merit in the submission of Shri R.P. Joshi, learned Counsel, that the evidence on record is not sufficient to hold that the accused intended to cause death or that the accused can be attributed with the knowledge that death or an injury leading to death is likely to be caused.It is not in dispute that the depth of the water was hardly four feet.It is not the case of the prosecution that P.W.1 was under any threat of drowning.It was known to both, P.W.1 and the accused that the depth of the water was four feet.It cannot be said with any degree of certainty, that the intention of the accused was to cause death or that he was aware that by pushing P.W.1 in the well, death or injury leading to death would be the likely consequence.The accused must, however, be convicted under Section 326 of the IPC since the prosecution has proved that P.W.1 suffered fracture which is grievous hurt within the meaning of Section 320 of the IPC.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::The conviction of the accused under Section 307 of the IPC is set aside.The accused is entitled to set-off under Section 428 of the Criminal Procedure Code.The appeal is partly allowed and disposed of.JUDGEadgokar ::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::

Cited provisions: Section 307 in The Indian Penal Code; Section 326 in The Indian Penal Code; Section 320 in The Indian Penal Code