1 Cri Appeal No. 11 of 1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 11 OF 1999 Balu s/o Bapu Shelke, Aged 35 years, Resident of Shelkewadi, Taluka Shrirampur, District Ahmednagar Appellant V E R S U S The State of Maharashtra Respondent Mr. A.B. Kale, Advocate for the appellant Mr.T.S. Lodhe, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 22nd December, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and Order dated 8th January, 1999, passed by the II Additional Sessions Judge, Shrirampur, in Sessions Case No. 77 of 1995, convicting the appellant for the offence punishable under Section 325 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/- with a default clause. 2. The learned Judge of the trial Court acquitted the other accused -accused No. 2 Shravan. The prosecution case is that on 14th September, 1994, the appellant and his friend Shravan assaulted deceased Ganpat with fists and kicks and thereby caused serious injury to him, which ultimately resulted into his death. The appellant and his co-accused Shravan were charge-sheeted under Section 302 of the Indian Penal Code. But, as said above, the appellant alone was convicted under Section 325 of the Indian Penal Code. 3. There are 14 prosecution witnesses to support the prosecution case. Out of which, prosecution witness No. 5 Madhav is the most 2 Cri Appeal No. 11 of 1999 important one, because he was the eye witness. Madhav described the incident in vivid details. He stated that on 14th September, 1994, at about 05.30 p.m., he and Ganpat left village Puntamba to go towards their village riding bicycles. At about 07.30 p.m., they reached Shrirampur. He said, Ganpat asked him to buy cigarettes and so, he left Ganpat standing on the road along with both the bicycles and went to a shop for buying cigarettes. When he returned from the shop, he saw the appellant was delivering kicks at his bicycle. He said, he saw Ganpat asking the appellant as to why he had kicked at the bicycle. He said, thereupon, the appellant abused Ganpat and asked him as to why he stood on the road and that the road was not a place to stand up. He said, he saw the appellant then assaulting Ganpat with fist and kick blows. He said that he saw the appellant delivering kicks over Ganpat's abdomen. He said, when he tried to separate them, the appellant attascked him too. He said, however, he could escape. He said, he went towards his house and informed the incident to Shankar, Subhash, Raghunath and Pandharinath. He said, he, Subhash and Shankar came to the spot where Ganpat was beaten up. He said, they did not find Ganpat at that spot and learnt that Ganpat was removed to the house of one Machindra. He said, thereafter, Shankar took Ganpat to Shrirampur Police Station and lodged complaint against the appellant. He said, thereafter, Shankar and Machindra took away Ganpat for treatment and went back to his house. 4. Prosecution witness No. 3 Shankar stated that his brother Subhash, in the evening on that day, told him that Ganpat was beaten up. He said, he went to the spot where Ganpat was assaulted. He said, Ganpat was lying near house of one Maske. He said, Ganpat was groaning in pain and was unable to speak. He said, he took Ganpat to the police station in an auto rickshaw. He said, he then filed the complaint. He said, the police sent him and Ganpat to the 3 Cri Appeal No. 11 of 1999 Municipal Dispensary at Shrirampur. He said, the doctors at the Dispensary examined Ganpat. He said, thereafter, he took Ganpat to Kamgar Hospital, but the doctor refused to admit Ganpat in the hospital because no bed was available there. He said, the doctors at Kamgar Hospital gave him a note so that Ganpat could be admitted in another hospital. He said, he brought Ganpat home that night. He said, on the next day, Ganpat’s brother and father took Ganpat to Damani Hospital, Shrirampur, where Ganpat was admitted. 5. The third important witness is prosecution witness No. 10 Raghunath, who said that Ganpat was his neighbour. He said, Madhav, the prosecution witness No.5 was his nephew and he learnt from him that Ganpat was assaulted. He said, he went to the spot where Ganpat was assaulted. He said, Madhav told him that the appellant and another person had beaten up Ganpat. He said, when he went to the spot, he learnt that Shankar, the prosecution witness No. 3 had already taken away Ganpat to police station etc. He said, he did not go further and came home. He said, on the next day, he took Ganpat to Dr. Damani’s Hospital. He said, Ganpat was having pains in his stomach. He said, Dr. Damani performed surgical operation on Ganpat on 16th September. He said, thereafter, Ganpat was treated at Damani’s Hospital for further 4-5 days, but, thereafter, Ganpat was shifted to Kamgar Hospital. He said, even there Ganpat did not improve, and so, Ganpat was taken to K.E.M. Hospital at Pune, but, he said, Ganpat succumbed on 7th October, 1994. 6. Prosecution witness No. 12 Eknath is the next important witness, who stated that on 16th September, 1994, he learnt that his brother-in-law Ganpat was admitted to Damani’s Hospital at Shrirampur. He said, hearing this, he went to see Ganpat at Damani Hospital. He said, when he met Ganpat in the hospital, Ganpat was fully conscious and able to speak. He said, Ganpat informed him that the appellant and other accused beat him with fist and kick blows. He 4 Cri Appeal No. 11 of 1999 also said that Ganpat specifically told him that the blows given on his stomach. 7. The next important witness of the prosecution is Dr. Dwarkadas Damani, who said that on 15th September, 1994, Ganpat was brought to his hospital. He said that after he examined him, he got him admitted in the hospital. He said, on his examination, he found that Ganpat was complaining of pain in abdomen mainly on the right side. He said, Ganpat did not suffer any external injury though Ganpat told him that he was suffering from blunt abdominal troma since the previous day. He said, on 16th September, 1994, he operated Ganpat and found his gall bladder was ruptured and there were lacerations of liver and colon. He said, Ganpat was suffering from peritonitis also. He said, internal injuries which he noticed were grievous in nature. He said, had there been no operation, Ganpat could have died. As said above, ultimately, Ganpat died due to these injuries on 7th October at Pune. 8. The learned Judge of the trial Court believed the testimony of prosecution witness No. 5 Madhav, the solitary eye witness, and convicted the appellant. I have already narrated as to what Madhav had stated in his deposition. He did not implicate the other accused in this case except saying that he was present at the scene of occurrence at the material time. The learned Judge of the trial Court therefore rightly acquitted the other accused. 9. The learned Advocate appearing for the appellant contended that on two occasions Ganpat’s dying declaration was recorded by the prosecution witnesses No. 4 and 9. He tried to place reliance on those dying declarations. But, I would not read their contents because these dying declarations were not proved properly. The witnesses simply stated that they recorded the statements. They did not state as to what they heard from the victim about the details of the assault. So the contents of the dying declarations are admissible in 5 Cri Appeal No. 11 of 1999 evidence. The reason why Shri Kale, learned Advocate for the appellant tried to place reliance on the contents of these dying declarations is that in these declarations Ganpat alleged that he was beaten up by the appellant as well as the other accused at one place, and, at other place, Ganpat stated that he was beaten up by five persons including the appellant and the other accused. Shri Kale asserted that if the other accused was equally involved in the assault and if he was acquitted, the appellant also deserves acquittal. I am not inclined to accept his submission, firstly because the declarations are not proved documents. So they are not part of the record. I am thus left with the testimony the prosecution witness No. 5 Madhav implicated the appellant alone in the assault. 10. Shri Kale then pointed out that it has come on record that at the time of incident, Ganpat was under influence of liquor. He pointed out that there was possibility of the injuries being caused to Ganpat if he had an accident in intoxicated state. However, the theory of accident is not at all convincing, because the prosecution witness No. 5 gave graphic account of the incident. 11. Shri Kale then asserted that it would be unsafe to rely on the solitary testimony of prosecution witness No. 5 if he did not implicate the other accused. No doubt, prosecution witness No. 5 is the only eye witness, and, if he is disbelieved, the appellant would be acquitted. But, there is nothing on record to disbelieve him. He and Ganpat admittedly were working at Puntamba, and, on that day, after finishing their work, they left Puntamba riding their bicycles to go to their village, and on the way, the incident had taken place. So, Madhav, the prosecution witness No. 5 was a natural witness and his testimony is not coloured with exaggeration. He was believed by the learned Judge of the trial Court and I am not also inclined to disbelieve him. 12. Shri Kale then asserted that the learned Judge of the trial Court 6 Cri Appeal No. 11 of 1999 could not have convicted his client for the offence punishable under Section 325 of the Indian Penal Code. He said, the appellant at the most caused simple injuries to Ganpat and the learned Judge of the trial Court should have at the most convicted the appellant for the offence punishable under Section 323 of the Indian Penal Code. This is not acceptable, because Dr. Dwarkadas Damani has clearly stated that on 16th September, 1994, when he opened the abdomen of Ganpat, he found at least three grievous injuries on his internal organs. The description of the injuries is also given above. Rupture of gall bladder and laceration to liver and colon are certainly the injuries that had endangered the life of Ganpat. These injuries were not resulted due to improper medical help etc. I have therefore no hesitation to hold that the conclusion the learned Judge of the trial Court drew in respect of the offence under Section 325 of the Indian Penal Code is proper. 13. Shri Kale then submitted that the substantive sentence awarded to the appellant by the learned Judge of the trial Court is rather harsh. He pointed out that even in cases where an accused is found guilty of culpable homicide not amounting to murder, the Courts generally award substantive sentences in the range of 3 to 5 years. He also pointed out that since the incident of 1994, 16 years have passed and the appellant is undergoing rigorous of the trial and appeal. He pleaded for leniency and for reduction in substantive sentence. Having regard to the mitigating circumstances, mentioned above, I am of the view that the appellant deserves reduction in the substantive sentence. ORDER (1) The appeal is partly allowed. (2) The conviction of the appellant under Section 325 of the Indian Penal Code is not disturbed, but he is ordered to undergo rigorous imprisonment for three 7 Cri Appeal No. 11 of 1999 years and to pay fine of Rs.5,000/- (Rupees Five Thousand). In default of payment of fine amount, he should undergo further rigorous imprisonment for one year. (3) Since the appellant is not before the Court, issue arrest warrant against him. ( A.V. NIRGUDE, J. ) SRM/criapl/11/99/22/12/10/ok