1 APPEL 55 OF 1997.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 55 OF 1997. Dattatraya Kashinath Patil, age : 26 years, residing at Saphala, p/o Agarwadi, Taluka: Palghar, District: Thane ... Appellant -versus The State of Maharashtra .. Respondent. Mr. M.S. Mohite, for the Appellant. Mrs. S. D. Shinde, Addl. Public Prosecutor, for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 2nd December, 2010 ORAL JUDGMENT 1. This is an appeal questioning appellant’s conviction, by the learned Additional Sessions Judge, Palghar, for offences punishable under Sections 326 and 324 of the Indian Penal Code and sentence to suffer R.I., for three years and to pay fine of Rs. 100/- or in default to undergo further simple imprisonment for a period of one week for offence punishable under Sections 326 of the Indian Penal Code and R.I. for one year for the offence punishable under Section 324 of the Indian Penal Code. 2. The facts which are material for deciding this appeal are 2 APPEL 55 OF 1997.sxw as under:- On 27th February, 1995, there was a fair of village Bhawangadh. P.W.3 Pravin Gharat accompanied by P.W.5, Tanuja and one Sujata had gone to attend the said fair. Accused Nos 1, 3 and 4 i.e. Bandya, Ravindra and Suresh were teasing girls leading to a quarrel with Pravin. Pravin started returning home with girls. Accused Nos 1, 3 and 4, Bandya, Ravindra and Suresh, followed them. Pravin reported the matter to his brother Pramod. Pramod accompanied by P.W.2 Gajanan proceeded to a grocery shop where, Bandya, Ravindra and Suresh were present, to accost them. The accused 1, 3 and 4, started beating Gajanan and Pramod. At that time the present appellant Dattatray Kashinath Patil who is possibly a brother of accused Bandya, suddenly came there and hit Pravin and Gajanan both with sickle which he was carrying. Both sustained bleeding injuries. They were taken to Hospital at Saphala and from there to Bhagwati Hospital at Mumbai. P.W. 2 Gajanan reported the matter and offence was registered and investigation commenced. 3. In the course of investigation, police performed panchnama of spot, seized blood stained clothes, also recovered sickle at the instance of appellant, sent the incriminating articles to Forensic Science Laboratory, recorded statement of witnesses and 3 APPEL 55 OF 1997.sxw on completion of investigation sent chargesheet to the learned Judicial Magistrate First Class, Palghar, who committed the case of the Court of Sessions at Palghar. 4. The learned Additional Sessions Judge, charged the appellant alongwith Bandya, Ravindra and Suresh for the offence punishable under Sections 307, 326 and 506 read with section 34 of the Penal Code Code. Since all the accused persons pleaded not guilty to the said charge, they were put on trial at which prosecution examined in all 9 witnesses to bring home the guilt of the accused. 5. After considering the evidence in the light of defence of false implication raised by accused persons, learned trial Judge came to conclusion that accused Nos. 1 to 3 i.e. Bandya, Dattatray and Ravindra were guilty of the offence punishable under Sections 326, read with 34 of the Indian Penal Code for causing injuries respectively to Gajanan. He convicted appellant alone for offence punishable under Section 324 of the Indian Penal Code for causing injury to Pravin. He acquitted the accused Suresh of all the offences. The learned Judge released accused No.1 Bandya and accused No.3 Ravindra on probation of good conduct, but convicted and sentenced the appellant Dattatray as mentioned in 4 APPEL 55 OF 1997.sxw the preceding paragraphs. Being aggrieved thereby Dattatray has preferred this appeal. 6. I have heard learned counsel for the appellant and the learned Additional Public Prosecutor. With the help of learned Counsel, I have gone through the record. 7. Learned counsel for the appellant rightly submitted that the evidence of P.W.5 Tanuja is unhelpful to form an opinion as to whether offences were committed or not since she has not witnessed the incident of assault. She merely stated about quarrel with Pravin. Tanuja’s evidence would therefore, have to be excluded from consideration since it only provides motive for assault, but does not throw any light on the manner in which assault was launched. 8. Learned counsel for the appellant next submitted that the evidence of P.W.2, Gajanan, should not have been believed by the learned trial Judge, since according to Gajanan he had been taken to hospital by Pramod, and Pramod had disclosed to the police about the incident. He pointed out that Pramod has not been examined by the prosecution. He submitted that if Pramod was eye witness to the incident, who had made disclosure to the police about Incident, the prosecution was duty bound to examine him, 5 APPEL 55 OF 1997.sxw and his non examination creates doubt about veracity of evidence of P.W. 2 Gajanan, as well as P.W.3, Pravin. As rightly pointed out by the learned Additional Public Prosecutor, non examining Pramod, or, the statement of P.W.2 Gajanan that Pramod had narrated the incident to police, would not reduce the evidentiary value of the evidence of Gajanan and Pravin, who had suffered injuries in the incident. 9. As discussed by the learned Judge, the injuries are such that they could not be self inflicted. They are not minor injuries. Therefore, there is no question of concluding that Gajanan and Pravin would implicate someone else and screen the real offender. The injury caused to PW.2 Gajanan is a Contused Lacerated wound of the size of 8 cm x 5 cm plura deep on right side of the chest on 4th and 6th inter coastal space; and the injury caused to Pravin is a Contused Lacerated wound of the size 8 cm x 4 cm subcutaneous deep on the left side of the back at supra scapular region. It has to be noted that it was not the appellant Dattatray, who was the cause of the incident, but it was the other three accused persons, who were allegedly teasing the girls. Therefore, if the witness wanted to falsely implicate someone in the assault, they would have rather named three others accused persons than the appellant Dattatray, who had incidentally come to the spot. But he 6 APPEL 55 OF 1997.sxw joined the assault and therefore, the evidence of P.W.2 Gajanan and P.W. Pravin about the incident is natural. Their cross examination does not reveal anything to discard the same and hence the learned Judge rightly accepted the evidence of these two witnesses and held the appellant guilty of assault which led to injuries sustained by Gajanan and Pravin. 10. In this case the prosecution has examined three Medical Officers. P.W.1 Dr. Randive was the first Medical Officer, who examined Gajanan and Pravin. He found that both had suffered one Contused Lacerated Wound each. According to the Doctor, the nature of injury was grievous in nature. Contused Lacerated wound suffered by Gajanan was on right side of chest at 4th to 6th inter coastal spaces of chest size 8 x 5 cm plura deep. The injuries were caused by hard and sharp object and patient had been transferred to Bhagwati Hospital for further treatment. P.W.1 Dr.Randive, further stated that witness Pravin sustained Contused Lacerated Wound on left side of back at supra scapular region having 8 x 4 cm subcutaneous deep, which was caused by hard and sharp object within 24 hours. The Doctor classified the injury also as grievous and referred the patients for further treatment to Bhagwati Hospital. 7 APPEL 55 OF 1997.sxw 11. P.W.4 Dr. Rajesh Patil, was serving at Bhagwati Hospital. He stated that he examined Gajanan and found that he had Contused Lacerated wound on right side of chest between 4th and 6th inter coastal space about 8 x 5 cm lung deep. He stated that he had referred the patient to a Surgical Department. He does not state as to whether the injury was grievous or not. 12. P.W.8, Dr. Shetty, stated that he had examined Gajanan Gharat, at the time of admission in Bhagwati Hospital. Gajanan was admitted on 27th February, 1995 and was discharged on 7th March, 1999. He stated that there was a wound on the right side of chest, some part of the lung was coming out of wound. He further stated that lung was pushed in the chest and wound was sutured and an inter coastal drain was left by him.. He produced the copy of case papers at Exh.46. 13. The learned counsel for the appellant submitted that though the prosecution examined three Medical Officers, none of them could describe injury sustained by Gajanan as one falling under any of the clauses of section 320 of the Penal Code. None of three doctors have stated that the injury was one which endangered life, and, as to causing the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his 8 APPEL 55 OF 1997.sxw ordinary pursuitsm the doctors themselves stated that the patient Gajanan was admitted on 28.2.1996 and discharged on 7.3.1996 ie. in or about 8 to 9 days. Therefore, though Dr. Randive had used word ‘grievous injury’, it does not become “grievous hurt” as defined u/s 320 of the Indian Penal Code. 14. Learned Additional Public Prosecutor submitted that it would be wrong to overlook the fact that the injury of Gajanan was a wound on the right side Chest some part of the lung was coming out of wound. Therefore she submitted that it would be wrong to say that yet it was not a grievous hurt. As rightly submitted by the learned counsel for the appellant for medical purpose an injury may be grievous injury. But considering the Medical Officer’s description of the injury it does not fall in any of the various clauses of section 320 of the Indian Penal Code and so for the purpose of concluding as to which offence is committed, it would not become grievous hurt. In my view, learned counsel for the appellant is right in submitting that in the absence of any observations of the Medical Officer that the injury endangered human life or injury was such as would keep the victim bed ridden for about 20 days, the injury could not have been held as grievous hurt. This aspect has been overlooked by the learned Additional Sessions Judge. 9 APPEL 55 OF 1997.sxw 15. As far as injury to Pravin is concerned even learned Additional Sessions Judge, rightly held that it was not grievous hurt ( inspite of Dr. Randive PW-1 describing the same as grievous) and therefore, has convicted and sentenced the appellant for offence punishable under section 324 of the Indian Penal Code only. In view of this, conviction of the appellant for the offence punishable under section 326 of the Indian Penal Code for injures inflicted upon Gajanan would have to be altered to conviction for the offence punishable under Section 324 of the Indian Penal Code. 16. Section 324 provides for maximum sentence of three years of R. I or fine or both. Therefore, obviously in the light of the fact that the appellant was just 26 years old at the time of incident and was not shown to have any criminal history,as also the genesis of the incident, he did not deserve maximum punishment under this section also. Learned counsel for the appellant submitted that the appellant has in fact undergone sentence of one year, three months and 25 days when he was under trial prisoner. He submitted that 15 years after the incident it would be harsh to ask the appellant to go back to the prison and to suffer sentence. 17. In view of this since the conviction of the appellant has to 10 APPEL 55 OF 1997.sxw be brought down from section 326 of the Penal Code to that under Section 324 of the Indian Penal Code. Considering the genesis of the incident, absence of previous criminal history and age of the appellant at the time of incident, it would be appropriate, after lapse of these 15 years, to reduce the sentence to that already undergone, namely one year, and three months sentence, maintaining the fine which has been imposed on him. 18. In view of this, appeal is partly allowed. The conviction of the appellant for the offence punishable under Section 326 of the Indian Penal Code is altered to that for the offence punishable under Section 324 of the Indian Penal Code and the appellant is sentenced for the offence punishable under Section 324 of the Indian Penal Code and to undergo RI for one year and three months with fine of Rs.100/- for injuries caused to Gajanan and R.I. for one year for injuries caused to Pravin. Both the sentences to run concurrently. 19. In view of this the appellant shall surrender to his bail within a period of four weeks. The learned Sessions Judge shall see that the sentence as ordered has actually been executed or not. (R. C. CHAVAN, J.)