crapl285.99 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 285 OF 1999 1 Govind Rangrao Birajdar Age 40 years, Occ. Agriculture 2 Shrimant s/o Rangnrao Birajdar, Age 35 years,Occ. Agriculture Both R/o Dongargaon, Tq. Nilanga District Latur ...Appellants Versus The State of Maharashtra (Copy to be served on Public Prosecutor, High Court, Bench at Aurangabad) ...Respondent ..... Mr. V.R. Dhorde, advocate h/f Mr. R.N. Dhorde, advocate for the appellant Mr. V.G. Shelke, A.P.P. for respondent ..... CORAM: S. S. SHINDE, J. DATE OF RESERVATION OF JUDGMENT : 20 .01..2011 DATE OF PRONOUNCEMENT OF JUDGMENT : 28 .01.2011 JUDGMENT:- 1 This appeal is filed challenging the judgment and order of crapl285.99 2 conviction dated 5.7.1999, in Sessions Case No. 39 of 1998 passed by the learned Additonal Sessions Judge, Nilanga thereby convicting the appellants for the offences punishable under Section 324 r.w. 34 of I.P.C. and sentencing them to suffer R.I. for one year each with fine of Rs.1000/- each i/d to suffer R.I. for one months. 2 The prosecution case, in brief, is as under;- The incident in question took place on 18.2.1997 at about 6.30 p.m. at village Dongargaon, Tq. Nilanga, District Latur i.e. at the village of victim as well as accused. The appellant No.1 Govind assaulted victim Maruti s/o Gopala by means of handle of pick axe, thereby sustaining fracture to the bone of his left hand of upper arm and rest of the accused persons delivered abuses to him and also subjected him to beating by means of fists and kicks. The beating was intervened by witnesses namely Prakash Patil, Shripati Shingnale and Govind Salunke. The victim was carried to police station Kasarshirshi and F.I.R. was lodged by him at 9.10 p.m. in writing. Thereafter, Maruti was immediately referred for medical examination by P.H.C. to Medical Officer, Kasarshirshi, but thereafter, referred the injured to Civil Hospital, Latur as there was fracture of bone. crapl285.99 3 On the basis of F.I.R. crime was registered in police station, Kasarshirshi, at serial No. 23 of 1997 for the offences punishable under Sections 324, 323, 504 r.w. 34 of I.P.C. and on next day i.e. on 19.2.1997, the Investigating Officer i.e. P.H.C. Dnyanoba visited the place of incident, drew panchnama of place of occurrence and also seized handle of pick axe in presence of panchas, on production of the same by the appellant No.2 Shrimant. On 20.2.1997, injured Maruti died in Civil Hospital, Latur. On the very day, panchnama of inquest and seizure of wearing apparels of injured were drawn by P.H.C. Ranzunjare of police station Gandhi Chowk Latur and referred the paper to police station Kasarshirshi. On that basis P.S.I. Mundhe undertook the investigation of the crime on 21.2.1997 and added Section 302 of I.P.C. with the permission of the Court. The accused persons were already arrested in due course of the investigation. The dead body of injured Maurti was referred for autopsy, wherein probable cause of death of Maruti was opined by the Medical Officer, after conducting post mortem examination, as pulmonary embolism due to compound fracture shaft humorous. The investigating Officer has recorded statements of witnesses in due crapl285.99 4 course of investigation, inclusive of eye witnesses and a witness before whom oral declaration regarding cause of death made by injured Maruti and thus having found sufficient evidence, he charge sheeted all the accused persons for an offence punishable under Sections 302 r.w. 34 of I.P.C. in the Court of learned J.M.F.C. Nilanga. The learned J.M.F.C. Nilanga, had committed the case in due course to the Court of Sessions. Charge for the offence punishable under Section 302 r.w.34 of I.P.C. is framed and explained to the accused at Exh.16. They have pleaded not guilty and claimed to be tried. Their defence is of total denial. With a view to prove the guilt of the accused, the prosecution examined as many as eight witnesses. 4 The learned Additional Sessions Judge, Nilanga after framing necessary points and recording evidence and after hearing the parties has acquitted all the accused for the offence punishable under Section 302 r.w. 34 of I.P.C. However, the learned Judge has convicted the present appellants, who are original accused Nos. 1 and 2 for the offences punishable under Section 324 r.w. 34 of I.P.C. and sentenced them to suffer R.I. for one year each with fine of Rs.1000/- each i/d to suffer R.I. for one months. Hence, the judgment of the learned Sessions Judge is under challenge in this appeal. crapl285.99 5 5 Learned counsel appearing for the appellants submitted that there are omissions and contradictions in the evidence of the witnesses, examined on behalf of the prosecution. In so far as the evidence of P.W.3 and P.W.6, there is contradictions in their evidence as to how the incident has happened. P.W.3 says that Maruti Birajdar came at the spot, appellant Shrimant gave blow by wooden handle of pick axe to Maruti Birajdar then appellant Govind arrived, took handle from Shrimant and gave blow to Maruti Birajdar and then witnesses rescued. P.W.6 says first Shrimant came, he took the handle and hit Maruti thereafter persons who were present have intervened and rescued Maruti. P.W.6 says that thereafter they were separated and then Govind came and hit deceased by taking handle of pick axe from Shrimant. This is basic disparity of the happening of the incident and in view of the omission and contradiction the witnesses can not be believed. Learned counsel for the appellants submitted that the prosecution in view of the oral evidence as well as the Medical evidence has failed to prove that the fracture injury has been caused by the appellants in as much as there is no specific statement that blow was given on a particular part of body, particular side but on the contrary, the medical evidence clearly suggests that the fracture is crapl285.99 6 possible due to fall on the ground considering the age of Maruti as 65 years. The injuries are on one side of the body i.e. left side, therefore, it supports the case that the injury must have been caused due to fall. In cross examination of P.W.7 Dr. Deshmukh has stated that the compound fracture like in this case is possible in case of fall on rough and hard surface. Learned counsel for the appellants further submitted that in para 21 of the judgment, the learned Additional Sessions Judge has observed that “the letter inference regarding causing of fracture because of fall on ground, being favourable to the accused, is required to be accepted. I find substantial force in the submission coming forth from the defence counsel. In this case, no that much strong evidence is coming from the prosecution to firmly conclude that the fracture of humorous bone was necessarily caused by the alleged blows given by the accused Nos. 1 and 2. Eventually, it is difficult to conclude that the accused Nos. 1 and 2 are author of fracture caused to victim Maruti.” He further submitted that the incident in question has taken place at 6.30 p.m. in the evening in open space in village and there were other witnesses, who were present and separated, however, only interested witnesses have been examined and independent witnesses deliberately have not examined. P.W.6 is the close relative of Maruti crapl285.99 7 namely cousin son-in-law and P.W.3 is the servant of Maruti. Therefore, the prosecution has failed to examine independent witnesses. He therefore, submitted that the prosecution has failed to prove the case even prima facie and therefore, the appellants have erroneously held guilty for the said offences. Learned counsel for the appellants further submitted that assuming and without prejudice to the above, the alleged incident has taken place at 6.30 p.m. in the evening at the spur of moment and the accused were there empty handed. The appellants were sitting with empty handed. It is admitted position that the said pick axe handle belongs to some one else i.e. P.W.3 servant of Maruti, who was present on the spot which is very usual for the villagers to have handle of pick axe. Therefore, there is nothing to suggest that the appellants had come there with handle to commit any offence but on the contrary the incident took place at the spur of moment. Learned counsel for the appellants submitted that the incident has taken place in the year 1997. There were no previous criminal antecedents before alleged incident took place between the appellants and the victim. Thereafter, the appellants and others are staying in the village peacefully. The appellants are the agriculturists and there is no untoward incident which has taken place and it is statement of the crapl285.99 8 P.W.2 brother of Maruti that their relations were cordial before the alleged incident. Therefore, lenient view should be taken. He further submitted that now the appellants are married and they are having their wives and children and they have to maintain their family. They are agriculturists and therefore, the benefit of Probation of Offenders Act may be given to them in view of the provisions of Section 360 of the Criminal Procedure Code. Learned counsel for the appellants in support of his aforesaid submissions, has placed reliance on the following judgments of the Hon’ble Supreme Court as well as this Court. i) Hari Singh Vs. Sukhbir Singh and Ors. Reported in (1988) 4 SCC 551 ii) State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and others, reported in AIR 2004 SC 4412. iii) Khushi Balaji Janjalkar vs. State of Maharashtra 2010 (1) Bom. C.R. 494 6 On the other hand, learned A.P.P. invited my attention to the evidence of prosecution witnesses and submitted that their evidence corroborates each other. He further submitted that the prosecution witnesses have witnessed the said incident. There are also other crapl285.99 9 witnesses who have supported the prosecution case. There is other evidence including medical evidence which fully establishes the case of the prosecution. Therefore, he submitted that the no interference is warranted in this appeal and the same deserves to be dismissed. 6 I have given due consideration to the submissions advanced on behalf of the appellants and the respondent-State. I have perused the record made available. Upon perusal of evidence of P.W.4 Dnyanoba Shingire, PHC Buckle No. 826 (Exh.33) who was on duty in the concerned police station at Kasarshirshi, has stated that the F.I.R. was registered by him. He has stated in his evidence that he received Exh. 34 F.I.R. which bears thumb impression of injured Maruti. Thereafter he registered the crime at Serial No. 23/97 and referred the injured for medical examination. 7 The prosecution examined P.W.3 Deelip Shivaji Bhale. His evidence is at Exh.32. In his examination in chief, he has stated that on 18.2.1997 he had been for labour work on wages for construction of work of Chakur Road. He was accompanied by Bhanudas. They returned back from the said labour work at about 6.00 p.m. and they were sitting in Samaj Mandir of Dongargaon. One Shrimant was also sitting with them. At that time Maruti Biradar came there. Shrimant inflicted blows over hand of Maruti by means of handle of pick-axe. crapl285.99 10 The said handle was in tools of labour work. While assaulting Shrimant had said that his father had been assaulted on the ground of grazing of chick peace pods (Toor). By that time, neighbourers assembled there. Thereafter, Govind the brother of Shrimant came there. He took out handle of pick-axe from the Shrimant and started to beat Maruti. Thereafter, all assembled persons intervened the assault, and rescued him. Thereafter Prakash Patil lifted Maruti and caused him to sit beneath neem tree on plat-form. Maruti was having bleeding injury over his hand. Thereafter, relatives of Maruti came there and took him to hospital (Emphasis supplied). In his cross examination, he has stated that the pick-axe referred by him earlier was not belonging to Shrimant, but it was belonging to them. Relying on his cross examination counsel for the appellant submitted that since the appellant-accused was not carrying out any weapon, therefore, there was no question of assault by them on Maruti. He has stated in his cross examination that he cannot explain the location of the place, where the incident took place, to the police. However, in his cross examination, he has stated that it is false that he did not know the location of blow inflicted by Shrimant to Maruti. He has denied other suggestions given by prosecution. 8 P.W.6 is Shripati Mohite, whose evidence is at Exh.36. In his crapl285.99 11 evidence he has stated that on 19.2.1997 he was at his residence. He was sitting on the plat form of shop of Ratan Gore. Nagnath, Devidas, were also with him. At that time, a quarrel was started between Shrimant and Maruti in front of Samaj Mandir. Shrimant was beating to Maruti by means of handle of pick-axe. They all intervened and rescued Maruti. Later on Govind also beat Maruti. Therefore, Maruti fell down. He also beat by means of handle of pick-axe. Govind had rushed there during the course of beating by Shrimant to Maruti. In his cross examination, he has admitted that Sopan is cousin of deceased Maruti and Sopan is his father-in-law. Counsel for the appellants submitted that there is material variance in the evidence of this witness. He further submitted that P.W.6 is interested witness and no reliance can be placed on his evidence. 9 The evidence of Medical Officer Ms. Varsha Deshmukh is at Exh.39. In her evidence she has stated that as many as following six external injuries were found on the person of deceased Maruti. The said injuries are reproduced herein below:- i) Compound fracture humorous left wound over arm 3x2x2 crapl285.99 12 cm anteriorly ii) Abression over wrist right 22 cm dorsally. Iii) Abression over elbow left post 2x2x2 cm iv) Abression on knee bilat about 2x2 cm v) Abression over back near hipbone (waist) left laterally 2x2 cm vi) 4 Abressions on back left above 2x2 cm. Upon perusal of all these injuries, Doctor opined that the probable cause of death was pulmonary embolism left due to compound fracture shaft humorous left. Relying on the cross examination of the witness and the opinion given by this witness that the death of Maruti is caused due to compound fracture shaft humorous left and therefore the Medical evidence is not supporting the prosecution story. Counsel further submitted that Doctor has opined that the injuries which are mentioned in the evidence by her, are possible in case of forgible fall on rough and hard surface. The fractures are not generally dangerous, in absence of any other complication. crapl285.99 13 Relying on cross examination of this witness and the opinion expressed by her, counsel for the appellants submitted that said injuries are possible as stated by the medical Officer in case of forgible fall on rough and hard surface. Therefore, counsel would submit that the evidence of this witness, eye witnesses and medical evidence is not relevant. 10 In my opinion, though, to some extent there is variance in the evidence of P.W.3 and P.W.6, however, they have stated about the incident in question i.e. assault by accused appellants on Maruti. Therefore, there is direct evidence in the nature of eye witnesses. Medical evidence also corroborates with the evidence of eye witnesses. Injury No.1 i.e. compound fracture humorous left wound over arm 3x2x2 cm anteriorly is certainly possible by assault as it is happened in the instant case. Therefore, if there would not have been fracture then the aggravating factors leading to formation of emboli would not have been there. Therefore, in my opinion, taking into consideration the evidence of P.W.3, P.W.6 and medical evidence, itis crystal clear that the appellants have assaulted Maruti. It cannot be forgotten that ultimately Maruti has lost his life. It has also come in the evidence of other witnesses about the presence of accused at the spot. The prosecution has convincingly established its case through crapl285.99 14 investigating Officer P.W.8 Walchand Pandharinath Mundhe. Therefore, in my opinion, the appellants accused did commit the offence. Therefore, in my opinion, taking into consideration the evidence of eye witnesses, medical evidence and other evidence brought on record by the prosecution, impugned judgment and order required to be confirmed. However, I find some force in the arguments of the counsel for the appellants that assault by pick-axe was not from sharp side of the pick-axe but admittedly the assault was done by the side of wooden log of pick-axe. 11 In the facts and circumstances of this case and taking into consideration the submission of the counsel for the appellants that the incident in question has taken place in the year 1997, there is no previous criminal antecedents prior to the alleged incident, the appellants and others are residing in the village peacefully. The appellants are agriculturists and there is no untoward incident taken place after they are released on bail. It is the prosecution case that when the accused had arrived at the scene of offence, they were not carrying any weapon. This position is also stated by the prosecution witnesses. It is an admitted position that pick-axe handle belongs to some one else i.e. the servant of P.W.3, who was present at the spot. In the above background, I feel it appropriate to reduce the sentence to the period as already undergone. crapl285.99 15 10 In the result, the sentence awarded by the learned Additional Sessions Judge, Nilanga dated 5.7.1999 in Sessions Case No. 39 of 1998 is reduced to the period already undergone. However, so far as the payment of fine amount is concerned, the order of the Additional Sessions Judge, Nilanga is maintained. Having been observed that the sentence ordered by the Additional Sessions Judge, Nilanga is reduced to the period already undergone, the appellants should not be sent to jail. 11 The appeal is partly allowed and disposed of. The bail bonds stand cancelled. *****