1 APEAL 391 OF 1993 vks IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 391 OF 1993. 1. Bharat Pandurang Pawar, age : 22 years, residing at Lokmanya Nagar, Pada NO.4, Thane 400 607 2. Padmakar BarkuNaik, age: 24 years, r/o Lokmanya Nagar, Pada No.4, Thane 400 607. 3. Sanjay Dhondiram Bansode, age: 26 years, Occn. Service, resident of Lokmanya Nagar, Pada No.13, Thane 400 607. 4. Dilip Tanaji Lokhande, age: 22 years, Occn. Watchman, Pada NO.4, Thane 400 607. 5. Sunil Kashinath Jadhav, age: 22 years, r/o Pada No.4, Lokmanya Nagar, Thane 400 607. 6. Laxman Chango Patil, age: 43 yrs. r/o Pada No.3 Lokmanya Nagar, Thane 400 607. 7. Barku Namaji Naik, age: 52 years, r/o Pada NO.4, Lokmanya Nagar, Thane 400 607. .. Appellants. Versus The State of Maharashtra ..Respondents Mr. Ashish Sawant holding for Mr. S.R. Chitnis, for the Appellants. Ms. Alpa T. Javeri, APP for the Respondent State. 2 APEAL 391 OF 1993 CORAM: R. C. CHAVAN, J. DATED : 7th March, 2011. Oral Judgment. 1. This appeal is directed against the conviction of all the appellants, for the offences punishable under Section 307, 147 , 148 and 149 of the Indian Penal Code and sentence to suffer R.I. for five years and R.I. for five years and one year respectively imposed by the learned Additional Sessions Judge, Thane, on conclusion of Sessions Case No.70 of 1988. 2. Facts which are material for deciding this appeal are as under:- The first informant Ramesh was serving in M/s Raymond Woolen Mill. His wife was staying with her parents since she had gone there for delivery. On 9.9.1987, after duty hours, Ramesh went to stay at his father-in law’s house. On next morning on 10.9.1987 at 7.00 a.m. he left his father in law’s house for attending his duties. He was proceeding to the place of his employment on a bicycle, all the appellants are alleged to have nabbed the first informant. They were armed with different weapons. They assaulted Ramesh with sword, stick, iron rods, stones etc. First informant rushed back to his father in law’s house and hid under a bed, but appellants are alleged to have also banged on the door of the father in law’s house, making first informant further run away 3 APEAL 391 OF 1993 to the house of one Mrs. Nawale from where he went to the police station. The first informant had sustained injuries on his head. He was referred for medical examination and after his report was taken, police registered offence, performed panchnama of spot, recorded statement of witnesses as also of appellant. After recovery of weapons used in the commission of offence and on completion of investigation chargesheet was sent to the leaned Judicial Magistrate First Class, Thane, who committed the case to the Court of Sessions at Thane. 3. All the appellants pleaded not guilty to the charge under section 147, 148, 307 read with section 149 of the Indian Penal Code. Hence they were put on trial at which prosecution examined in all 11 witnesses in its attempt to bring home the guilt of the appellants. After considering the prosecution evidence in the light of defence of denial raised by the appellants, learned Additional Sessions Judge convicted the appellants as aforementioned. Aggrieved thereby the appellants are before this Court. 4. I have heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the evidence on record. First informant-victim Ramesh has been examined as P.W-1. In his evidence though he named all the 4 APEAL 391 OF 1993 appellants as present at the spot, as far as appellant Sanjay Bansode is concerned, he does not state that Sanjay was armed with any weapon. As far as other accused are concerned, he states that they were armed with various weapons. Actual assault is attributed to appellant No.1, Bharat Pawar, appellant No.2- Padmakar Naik, appellant No. 5-Sunil Jadhav and appellant NO.6 Laxman Patil. Bharat Pawar is alleged to have hit him by means of sword on the head. Sunil Jadhav gave a blow with an iron rod on the right forearm and Laxman Patil is alleged to have pelted stone at first informant. He also proved his report at exh. 22. He stated that he was referred to Civil Hospital by police where his injuries were treated. 5. Though the first informant had also stated about assault by Padmakar Barku Naik, accused No.2 by hockey stick on the leg, the medical certificate proved by P.W.8 -Dr. Gawali does not show any injury on the leg. The medical certificate shows that victim had only Contusion on right elbow joint, Abrasion on the left forearm, two Incised Wounds on occipital region vertically and laterally 6”x2”x bone deep and 4”x 1”x bone deep. Therefore, the account about injuries which is inconsistent with the medical certificate would, as rightly pointed out by the learned counsel for the appellants, indicate a tendency to exaggerate and inculpate as many 5 APEAL 391 OF 1993 persons as possible. The assault described by P.W.1- Ramesh, when read with Medical certificate and the conclusions drawn by Dr.Gawali, would indicate that only Bharat Pawar had hit victim with sword on head and Sunil Jadhav had given blows by iron rods on the forearm. Learned counsel for the appellant submitted that in fact, first informant, in his report had stated that the appellant Dilip Tanaji Lokhande-accused No.4 had brought iron rod, and hit the victim on his forearm. Therefore, according to him, the account in the evidence about Sunil Jadhav giving him blow with iron rod, cannot be believed. There could be some incorrect information in the first information report, which was given immediately. P.W.1 stated about complicity of Sunil Jadhav in his evidence before the Court and the contradictions about Dilip having brought iron rod was not put up to the witness. So, the complicity of Sunil Jadhav can not be excluded. 6. Victim’s wife Aruna is examined as P.W.2. She stated that her husband was in fact staying with a woman by name Jadhav, who had died of burns. She, however stated that she did not have knowledge if her husband was prosecuted in that matter or that her husband was also prosecuted for raping one Geeta Varma. She did not know if there were complaints of the persons of the locality against her husband. She had not actually seen assailants assaulting 6 APEAL 391 OF 1993 the first informant. Only after victim’s re-entering house of her father in law, she noticed that he was being chased. She identified the appellant Bharat Pawar, Sanjay, Sunil Jadhav as persons who were present. She stated of mere presence of Sanjay. As far as Sanjay is concerned no role is attributed even by the first informant. She named Bharat Pawar and Sunil Jadhav as the persons whom she had noticed when her husband entered the house. 7. P.W.3-Raghunath Kadam turned hostile. P.W.4 Mohan Harad is first informant’s brother in law. He was candid in admitting that most of the persons from Lokmanya Nagar locality were of the view that his brother in law should not stay in that locality and that the first informant was on enimical terms with many persons. He too stated that the appellant Bharat Pawar was armed with sword and Sunil Jadhav was having iron bar. He, however, noted appellant Dilip to be armed with knife. 8. P.W.5 Laxman Harad is the father in law of the first informant, who also came to his house stating about things that happened after the incident had taken place. He also admitted in his cross examination that he did not know in how many criminal cases his son in law was prosecuted. He too had named appellant Bharat, Deelip and Sunil as persons who had come to his house. 7 APEAL 391 OF 1993 9. P.W.6 Kishor Labhade, is the panch at recovery made at the instance of some of the appellants. Appellant Bharat, is alleged to have stated before him that he was prepared to show where they had hidden the articles sword, iron bar and axe used in the offence. Memorandum was made and these three articles were seized. Though he admitted the signatures on memorandum and statement made by Bharat Pawar leading to recovery, in the Court he refused to identify Bharat Pawar. 10. P.W.7 – Changunabai Nawale, is the person in whose house the first informant hid and from where he had gone to the police station. Her evidence is of no use in connecting the appellants to crime. 11. As already indicated P.W.8, Dr. Gawali, who examined first informant proved the injury certificates. Dr. Gawali admitted that he did not have X-ray plates with him, though according to him the X-ray plates would have given correct picture about injuries. He was asked categorically if the incised wounds on the scalp could have been sufficient to cause death in ordinary course, to which he answered that it depends upon patient’s resistance and blood loss . He could not state whether the patient was discharged on the next day. Thus his evidence does not show that there was a grievous hurt or any fracture or any injury which kept victim 8 APEAL 391 OF 1993 away from his daily pursuits for onwards of 20 days. 12. P.W.9 Pandurang Jadhav, P.S.I. attached to Vartak Nagar Police Station states about referring the victim to Civil Hospital,Thane for medical check up. P.W.10 Baliram Patil, is another hostile witness. 13. From this evidence it can be seen that in fact there were four injuries caused to the first informant Ramesh. Out of them two were contusion and abrasion on right and left arm and there were two incised wounds in occipital region which could be attributed to sword. Evidence thus shows complicity of appellant Bharat Pandurang Pawar and Sunil Jadhav as the authors of the injuries which have been observed by the Medical Officer. As already pointed out Sanjay Bansode was merely present, but no role is attributed to him. Considering this and given tendency of persons to rope in as many opponents as possible, as also the fact that the victim himself has a dubious past and had many enemies even according to his brother in law P.W.4 Mohan, it would be extremely unsafe to accept the word of P.W.1 Ramesh and hold that all the appellants participated in the assault. The learned Additional Sessions Judge should have seen this and should have restricted the finding of guilt to only those persons to whom specific role could be attributed with reference to the medical certificate. Therefore, complicity of appellant Bharat Pawar 9 APEAL 391 OF 1993 and Sunil Jadhav alone is indicated and participation of other appellants is doubtful. This would rule out formation of any unlawful assembly or acting in prosecution of common object of such assembly. 14. Learned counsel for the appellant submitted that there is noting to show injuries were grievous in nature. The conviction of the appellant Bharat and Sunil Jadhav should have been for offence under section 324 and not under Section 307 of the Indian Penal Code. As rightly countered by the learned Additional Public Prosecutor, a person inflicting injuries on the head with sword cannot be attributed any intention other than to kill. Therefore, irrespective of what injuries the Medical Officer had observed, the offence made out is one under section 307 of the Indian penal Code, for which even injuries are not required. Conviction of Bharat Pawar for the offence under Section 307 of the Indian Penal Code, cannot at all be faulted. As far as Sunil Jadhav is concerned, he is the author of contusion on right elbow and abrasion by iron rod on left and right arm of the victim. Therefore, it would be improper to attribute to him sharing of any intention of appellant Bharat to attempt to murder. His conviction would, therefore, have to be altered to one under section 324 of the Indian Penal Code. 15. This takes me to the question of sentence. Learned 10 APEAL 391 OF 1993 counsel for the appellant submitted that the incident occurred in 1987 i.e. 24 years ago and conviction was recorded in the year l993 i.e., 18 years ago and therefore, it would be harsh to send appellants back to jail after so many years. Learned APP submitted that this gap of 24 years or 18 years should not be material considering the nature of assault in which appellant Bharat had indulged and therefore, according to her sentence imposed by the learned Additional Sessions Judge is just and proper. However, considering the fact that the appellant Bharat has been living under the shadow of conviction of all these years, some reduction in the sentence would be enough though he would have to revisit the jail. 16. As far as appellant Sunil is concerned, he is being convicted for offence punishable under Section 324. Period of imprisonment already undergone which may be about 2 to 3 days after conviction, since he was bailed out immediately. Therefore, the period undergone plus some fine amount would be sufficient to meet the ends of justice. 17. In view of this Appeal is partly allowed. The conviction of the appellant No.2 Padmakar Barku Naik, appellant NO.3 Sanjay Dhondiram Bansode, appellant No.4 Dilip Tanaji Lokhande, appellant NO.6 Laxman Patil and appellant no.7 Barku Namaji Naik and the sentences inflicted upon them for the offences punishable under Sections 307 11 APEAL 391 OF 1993 read section 149 and 147, 148 of the Indian Penal Code, are set aside and they are acquitted of the offences charged. 18. The conviction of appellant No.1. Bharat Pandurang Pawar for the offence punishable under Section 307 of the Indian Penal Code is maintained. Sentence is however, reduced to R.I for 3 years with fine of Rs.10,000/- or in default R.I. for a further period of one year. 19. Conviction of appellant No.5, Sunil Kashinath Jadhav, for the offences punishable under Sections 147, 148, and 307 read with section 149 of Indian Penal Code is set aside. Instead, he is convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer imprisonment for the period which he has already undergone and to pay fine of Rs.10,000/- or in default to undergo R.I. for a period of one year. 20. The appellant No.1 Bharat Pawar and appellant No. 5, Sunil Jadhav shall surrender to their bail within a period of four weeks of the judgment being available on the High Court website. If the appellants did not surrender to their bail within a period of four weeks, the learned Sessions Judge shall have them arrested and committed to serve the sentence. (R. C. CHAVAN, J.)