1 CR.APPEAL NO.99/1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD UNREPORTED CRIMINAL APPEAL NO. 99 OF 1999 Date of decision:22/3/2011 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/99-99cr.a 2 CR.APPEAL NO.99/1999 //unreported// IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.99 of 1999 Ramdas s/o Arjun Japkar, Age 19 years, Occu. Education and Agriculture, r/o Nepthi Phata, Taluka and Dist. Ahmednagar. ...APPELLANT (Orig.Accused) VERSUS The State of Maharashtra. ...RESPONDENTS (Orig.complainant) ... Mr. N.C.Garud, Advocate, for the appellant. Mr.N.B.Patil, APP for respondent State. ... CORAM: K.U.CHANDIWAL, J. DATE : March 22nd, 2011 *** ORAL JUDGMENT: 1. Conviction recorded, in Sessions Case No.55/1998, dt.18.2.2009, treating the offense to be under Section 324 of IPC, instead of Section 307 thereof, directing the accused/appellant to undergo rigorous imprisonment for one year, by the learned Additional Sessions Judge, at 3 CR.APPEAL NO.99/1999 Ahmednagar, is impugned by the accused/appellant. 2. Mr.Garud, learned Counsel, representing the accused/appellant submits, the incident of assaulting Kisan, uncle of the accused, is a story projected by the prosecution, to avoid claim of the accused, for partitioning the ancestral property. Learned Counsel does not dispute the events occasioned, however, according to him, rival group of the complainant was aggressor and, the accused/appellant was assaulted, in defense, he pushed a bicycle, which the complainant or, the Kisan were holding and, resultantly, the Kisan suffered injuries owing to bicycle. There was no assault or, user of knife, at any time. The recovery of knife from beneath a boulder, near Seena river, is fake. There was no such discovery, at the instance of the accused/appellant. 3. In order to establish the prosecution case, apart from evidence of injured Kisan, evidence of complainant Deoram (PW 1) was put in acceleration. Though two other persons; Anusayabai and Arjun, are named by injured Kisan but, they were not examined but, that by itself, would not mitigate the theory and events conveyed by two witnesses. Evidence of Narayan, the investigator, informs about recovery of the weapon at the instance of accused recorded in the 4 CR.APPEAL NO.99/1999 memorandum, proved at Exh.31. Spot panchnama is at Exh.20. Blood-stained apparels of Kisan were taken charge under panchnama Exh.22. Seized articles were sent to the office of Chemical Analyzer and the Chemical Analyzer's reports at Exh.23 to Exh.25 connect to the events, blood group on the apparels and, also on the knife. 4. The evidence of Deoram and Kisan do narrate the earlier events dt.21.1.1998 when the accused, allegedly, had a quarrel with parents of the complainant, he even assaulted them. Kisan and Deoram were returning from hospital after providing treatment to parents on two bicycles. Suddenly, the accused, nephew of Kisan, intercepted and accused/appellant assaulted Kisan. The injuries are certified by Dr. Bhaskar Nanaware ( PW No.2) below certificate Exh.19, informing the nature of injuries to be (a) penetrating wound at left flank, y shape; size 5 c.m. deep and 10 c.m. superficial; below 12th rib. (b) a wound near first one, 5 c.m. long, muscle deep, size 5 c.m. long. He has also stated that both the injuries could have been by hard and sharp object, it could be possible by the knife which was shown to him. The tenor of the cross examination was, it could be a natural fall on a bicycle, to suffer the injury like Kisan, however, Dr.Bhaskar, disputed the same and informed that "y" shaped injury could be possible 5 CR.APPEAL NO.99/1999 with a single assault with knife. He disputed that the injury was not possible with assault by a knife. 5. It was suggested to Kisan that there was a heap of scrap/garbage by the side of the road and, apart from facing injuries by a bicycle, he fell on the scrap and received the injuries. But, it was disputed by Kisan and, even could not be so assertively established by the evidence of Medical Officer, in the cross examination. There was no reason for Kisan and Deoram to falsely implicate the accused, who is nephew of Kisan. Even if there are controversies, but the earlier events of assaulting parents, taking them to hospital speaks volumes against the mental set up of the accused/appellant. The evidence of Kisan and Deoram, even if skipped to some extent, the blood -stains on the knife, on the apparels of Kisan illustrate that they had blood grouping of "AB". Even Kisan had blood group of "AB" as per certificate Exh.24. Blood stains on the shirt of the accused had stains of "AB" group. There was no explanation as to how there could be splashing of the blood on the apparels of the accused and, particularly, of "AB" group. These aspects establish all the events, as has been propagated by Kisan and Deoram. Consequently, the doubt - that has been raised by Mr.Garud, is 6 CR.APPEAL NO.99/1999 taken away. 6. In the statement under Section 313 of Cr.P.C., the accused took a different stand that, based on property controversy, he has been falsely roped in and Kisan suffered of his own fault. This is illusory, not supported either in the spot panchnama or from any event nor could be so communicated by any independent witness, supporting the accused. 7. The injuries suffered by Kisan were simple in nature and not on the vital parts of the body. He was a indoor patient for 14 days. Learned Sessions Judge, considering the nature of injuries, rightly converted the prosecution, from infraction of Section 307 of IPC to one under Section 324 of IPC. There is no challenge to this exercise from the State. However, the learned Sessions Judge even if referred in paragraph no.26 of his judgment that the accused is quite young and the offense seems to be first offense, however, according to him, that is not all to show untoward leniency to him, as the learned Judge found that, it was not desirable on the part of the accused/appellant to go to the stage of assaulting his uncle over property dispute. 7 CR.APPEAL NO.99/1999 8. After extensively hearing Mr.Garud and learned A.P.P., perusal of the evidence and record, I find, no fault could be found, to record conviction for an offense under Section 324 of IPC, however, the punishment to undergo rigorous imprisonment for one year, is modified to the period already undergone in jail i.e. from 21.1.1998 to 6.2.1998. In addition, by exercise of powers under Section 357(3) Cr.P.C., the accused/appellant to pay, by way of compensation, an amount of Rs.20,000/- ( Rs. twenty thousand) to the injured Kisan Waghaji Japkar, resident of Nepti, taluka and dist. Ahmednagar, within two months from today. The appellant/accused is permitted to deposit the amount within time schedule in this Court. Upon such deposit, the amount be paid to the injured Kisan Waghaji Japkar, referred above. In default, the appellant to suffer rigorous imprisonment for eleven months. Appeal partly allowed to the extent as above. (K.U.CHANDIWAL) JUDGE ... AGP/99-99cr.a