crapl437.99 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 437 OF 1999 Shivaji s/o Guja Pawar, Age 30 years, Occ. Agriculture R/o. Keli (Tanda), Tq. Aundha District Parbhani ...Appellant Versus The State of Maharashtra (Copy served on Public Prosecutor High Court, Bench at Aurangabad) ...Respondent ..... Mr. S.J. Salgare, advocate h/f Smt. S.S. Jadhav, 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 : 25.01.2011 JUDGMENT:- s 1 This appeal is filed challenging the judgment and order dated 30.10.1999 passed by the learned Additional Sessions Judge, Parbhani in Sessions Trial No. 137 of 1994 thereby convicting the crapl437.99 2 appellant for the offence punishable under Section 325 of I.P.C. and sentenced him to suffer R.I. for three years and to pay fine of Rs. 1000/- i.d to suffer R.I. for six months. 2 The prosecution case, in brief, is as under;- The appellant-accused as well as deceased Mukinda are residents of Keli Tanda, Taluka Jintoor. Father of appellant is the maternal uncle of deceased Mukinda. On 24.7.1994 Guja, father of appellant requested a ‘Naik’ of the village to organize a meeting of panchas for the separation of the family members. All sons of Guja had already separated and were residing in the respective rooms of the said house, whereas said Guja was residing alongwith his wife. In the said meeting, Guja had decided even to be separated from is wife. When the meeting was concluded, the sons of Guja, who were present there, asked their father Guja as to why did he organize a meeting. Some of them even started beating their father and at that point of time, Mukinda, a cousin brother of the sons of Guja and sister’s son of Guja intervened and asked sons of Guja as to why they were unnecessarily beating their father. This intervention of Mukinda irked all the accused and as a result, accused Shamrao and Baban started beating Mukinda. At that point of time, the appellant was with wooden stump in his hand came and assaulted Mukinda and gave one blow to crapl437.99 3 him. As a result, Mukinda fell down on the ground and so a brother of Mukinda named Tukaram tried to rescue his brother Mukinda. The other persons at that point of time caught hold of Tukaram and even started beating him and accused No.5 Rajulbai encouraged her sons to beat Tukaram. It is the further case of the prosecution that when Mukinda collapsed on the ground, a bullock cart was arranged and initially he was taken to Adgaon, a village which is at a distance of about 3 K.Ms. from Keli Tanda, as the P.H.C. situates at Adgaon and so also an out post. The Medical Officer attached to Adgaon P.H.C. advised that for better medical treatment, Mukinda should be shifted to Parbhani and so Mukinda was brought to Parbhani and was admitted in Civil Hospital, Parbhani at about 12.00 noon. During the evening hours, a brother of Mukinda named Tukaram Sakharam Jadhav went to the police station Nanalpeth at Parbhani and lodged a report. As the alleged offence had taken place within jurisdiction of Jintoor police station, Nanalpeth police Parbhani Station registered an offence being crime No. 0/94. Later on the said report, lodged was sent to Jintoor police station and Jintoor police station registered an offence bearing Crime No.105 of 1994. Unfortunately, Medical efforts to save the life of Mukinda proved futile and Mukinda succumbed to death at about 10.00 p.m. According to the prosecution, since Mukinda collapsed on crapl437.99 4 the ground after receiving blow by wooden stump till his death he never became conscious and so no dying declaration was recorded. After the offence bearing Crime No. 106 of 1994 was registered by Jintoor police station, P.S.I. Kishansing Bahure, visited the spot of incident and drew a scene of offence panchnama. Inquest panchnama which was drawn in the hospital itself, was included in the investigation papers. Investigating Officer Mr. Bahure (P.W.8) recorded the statements of various persons who attended the meeting including the statement of P.W.2 Govardhan Rathod, Naik of the community. The accused were arrested. While in police custody, the appellant-accused expressed desire to give a memorandum statement and so his memorandum statement was recorded in presence of two panchas namely Mukinda Chavan (P.W.5) and Ramesh Sarode (P.W.6). In pursuance to the said memorandum panchnama (Exh.34), appellant Shivaji led the police to recover a wooden stump and the same was then seized by drawing seizure panchnama to that effect (Exh.34/A). Ultimately, after completing the investigation, charge sheet was filed against all the accused under Section 147, 148, 302 r.w. 149 of I.P.C. 3 The learned Magistrate committed the case to the Court of Sessions as the offences which were registered against the appellant and other accused persons were exclusively triable by the Court of crapl437.99 5 Sessions. Accused pleaded not guilty and therefore, claimed to be tried. With a view to prove the guilt of the accused, the prosecution has examined as many as eight witnesses. 4 The learned Additional Sessions Judge, Parbhani after framing necessary points and recording evidence and after hearing the parties acquitted the accused Nos. 1 to 5 for the offences punishable under Sections 147, 148, 302 r.w. 149 of I.P.C. However, the learned Judge has convicted the appellant-accused Shivaji s/o Guja Pawer for offence punishable under Section 325 of I.P.C. and sentenced him to suffer R.I. for three years and to pay fine of Rs.1000/- i/d to suffer R.I. for six months. Hence, the judgment of the learned Sessions Court is under challenge in this appeal. 5 Learned counsel for the appellant submits that the prosecution has examined two eye witnesses i.e. P.W.1 Tukaram Rathod and P.W. 2 Govardhan Rathod. P.W.1 Tukaram in his examination in chief has stated that when he was in his house, he heard the noise of quarrel and therefore, he rushed to the spot. He saw that original accused Nos. 1 to 3 were beating their father Guja, at that time the father of P.W.1 viz. Mukinda had intervened and asked to the original accused Nos. 1 and 3 as to why they were bearing Guja. At that time the present appellant Shivaji reached to the spot and with a stump of stick crapl437.99 6 had assaulted Mukinda on his neck. Due to blow of stick Mukinda fell on the ground and become unconscious. However P.W.2 Govardhan has deposed different version in his examination in chief. P.W.2 has stated that when Mukinda intervened and tried to separate the quarrel, at that time, original accused Nos. 1 and 3 were assaulted Mukinda by means of fist and kick blows and the present appellant picked up one stick of Babool tree and assaulted on his neck, therefore, he fall on the ground. However, P.W.7, Dr. Balasaheb has stated that the cause of death as ‘Cardio Respiratory failure due to fracture of spine with spinal shock and due to rupture of lever”. Learned counsel therefore, submitted that the appellant alone could not be held responsible for the offence punishable under Section 325 of I.P.C. Therefore, the learned Sessions Judge has been pleased to acquitted the original accused Nos. 1 and 3, and the benefit of the same should go in favour of the present appellant. Moreover, there is variance in the testimony of P.W.1 and P.W.2 and the same should not have inspired the confidence of the court, therefore, the appellant prays that the judgment and order dated 30.10.1999, be quashed and set aside and the appellant be acquitted. Learned counsel for the appellant further submitted that the incident took place on 24.7.1994. It was not a premeditated act. The incident took place all of a sudden. The appellant had neither intention crapl437.99 7 nor knowledge about the same. Moreover he was on bail during the trial, as well as during the pendency of the present appeal and that there is no any complaint received from the complainant against the appellant. Therefore, the appellant prays that he be given benefit of Section 4 of Probation of Offenders Act, as the incident is of 16 years old. The injury which was caused at the hands of the appellant, was not on the vital part of the body, hence, he prays that he be granted the benefit under the provisions of Probation of Offenders Act. Learned counsel in support of his aforesaid submission has placed reliance on the judgment of this Court in the case of Kaluram Nivrutti Tambe Vs. State of Maharashtra, reported in 2007(1) Mh. L.J. (Cri.) 543, in which probation was granted where the accused was convicted for the offences punishable under sections 326 r.w. Section 324 of I.P.C. Learned counsel for the appellant further submitted that the appellant was arrested on 27.7.1994 and released on bail on 19.12.1994 during pendency of the the trial. He has already undergone near about 4 months and 22 days, therefore, he prays that his substantiative sentence may be reduced to the period, which he has already undergone. In support of his submission he placed reliance on the judgment of Apex Court in the case of Bishan Singh and Anr. Vs. State, reported in 2008 ALL M.R. (Cri.) 325. Learned counsel for the crapl437.99 8 appellant would therefore, submit that this appeal deserves to be allowed. 6 On the other hand, learned A.P.P. invited my attention to the evidence of eye witnesses and submitted that they have witnessed the incident. There are also other 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. 7 I have heard learned counsel for the appellant and the learned A.P.P. for the State. I have also perused the record and proceedings. On careful perusal of the prosecution story, it appears that on 24.7.1994, father of the original accused Nos. 1 to 4 and husband of original accused No.5 requested a “Naik” of the village to organize a meeting of panchas for the separation of the family members. The said meeting was concluded. Accused Nos. 1 to 4, who were present there asked their father Guja as to why he did organize the meeting. Some of the accused even started beating their father Guja. At that point of time, Mukinda, cousin brother of accused Nos. 1 to 4 and sister’s son of Guja, intervened and asked the accused as to why they were unnecessarily beating their father. The accused persons did not like crapl437.99 9 the intervention of Mukinda and as a result accused Shamrao and Baban started beating Mukinda. At that point of time accused Shivaji with wooden stump in his hand came and assaulted Mukinda and gave one blow to him. As a result, Mukinda fell down on the ground and so a brother of Mukinda named Tukaram tried to rescue his brother Mukinda. Therefore, upon perusal of the prosecution case, as it is, it appears that accused Shivaji assaulted Mukinda by wooden stump by giving blow. It further appears that the said blow was given on the neck of Mukinda by accused Shivaji. It is not necessary to go into the details of the prosecution witness including panch witness. Suffice it to say that the complainant Tukaram and P.W.2 are witnesses who have witnessed the incident. (Emphasis supplied). 8 P.W.1 Tukaram Rathod has stated in his examination in chief that Mukinda was his elder brother. He has also admitted about relationship with accused Nos. 1 to 4 that they are maternal cousin. Whereas accused No.5 is his maternal aunt. He stated that on the date of incident at about 8.00 a.m. his cousin Shamrao and Baban started beating their father Guja and so he rushed to the said spot. He further stated that his uncle resides adjacent to his house. His elder brother Mukinda intervened and asked Shamrao and Baban as to why they were beating Guja. At that time, his another maternal cousin brother Shivaji reached to the spot with a stump of stick in his hand. crapl437.99 10 Shamrao and Baban caught hold of his brother Mukinda and Shivaji assaulted his brother Mukinda by a stick. Shivaji hit a stick on the neck of his brother. Mukinda fell down on the ground and became unconscious. So he tried to intervene and at that time his maternal aunt asked her sons to catch hold of this witness. He further states that he was beaten with fist and kick blows by the accused persons. He further stated that after that the Bullock of Laxman was brought and in the said bullock cart his brother Mukinda was taken down to Adgaon for medical treatment. The Medical Officer at Adgaon Hospital had advised to shift Mukinda to Parbhani for better medical management, accordingly, he was shifted to Parbhani. However, at 11.00 a.m. his brother Mukinda succumbed to death. He has specifically stated that all along he was with his brother Mukinda. When his brother received injures till his death, he was unconscious. While Parbhani police interrogated him and recorded his statement. On the basis of his statement, the police registered offence. In cross examination of this witness, he has specifically denied the suggestions that he has lodged false report. He has also denied the suggestion that accidentally some wooden planks from roof fell on his brother and as a result, his brother received injury. He has also denied the suggestion that Mukinda and accused were on inimical terms prior to the incident. He has specifically denied that around crapl437.99 11 12.00 noon his brother Mukinda was admitted at Civil Hospital, Parbhani. Therefore, the evidence of this witness is consistent with the prosecution story and nothing has been brought on record by the defence in the cross examination so as to disbelieve the evidence of this witness. 9 P.W.2 Govardhan Rathod has stated in his evidence that he knows all accused who are residents of his village. This witness appears to be Naik of the said village. The accused Nos. 1 to 4 are sons of Guja and accused No.5 is wife of Guja. He has narrated that the incident took place on 24.7.1997. He has stated that at about 8.00 a.m. Guja had been to his house. He has stated in his examination in chief that the incident took place on 24.7.1997 at about 8.00 a.m. He has stated in his evidence that the eldest son of their family becomes ’Naik’ and he was Naik of the village. He further stated that about 8.00 a.m. He reached to the house of Guja. Other panchas had already gathered there. He has named other persons in his statement, who gathered before he reached to the spot of meeting. He has specifically stated the presence of Guja, his wife and all sons. He further narrated what was agreed in the meeting. He has stated that Guja and his wife will reside separately in future. There is also details about the property which is given to Guja. He gives details about what was agreed between the parties. crapl437.99 12 This witnesses has stated that when it was decided that wife of Guja will reside alongwith her son Shivaji at that point of time, Baban and Shamrao rushed towards Guja and asked him the propriety of holding a meeting of panchas. Mukinda then intervened to rescue Guja and asked Baban and Shamrao as to why they were beating an old man like Guja. Thereafter, Baban and Shamrao caught hold the Mukinda and started beating him with fist and kick blows. At that point of time, Shivaji picked up one stick of Babhul tree and assaulted Mukinda on his neck from his rear side. Immediately, Mukinda fell down on the ground and froth started coming out of his mouth. Thereafter this witness says that Tukaram also intervened. He has further stated that he also accompanied Mukinda to the hospital. A private jeep was arranged to take Mukinda to civil hospital at Parbhani. He has stated that he accompanied Mukinda from beginning. First they went by bullock cart to Adgaon and after Doctor advised to shift Mukinda to Parbhani, a private jeep was arranged and Mukinda was taken to civil Hospital, Parbhani. He has specifically stated that between the span of assault and death, Mukinda was all along unconscious. He has specifically denied in his cross examination the suggestions given to him that it is not true to suggest that any such incident had taken place. In short he has supported the prosecution story. He has denied all suggestions. crapl437.99 13 10 Though the counsel for the appellant has vehemently argued that there is variance in the evidence of P.W.1 and P.W.2 therefore, the prosecution story cannot be believed and is required to be rejected. If the evidence of both these witnesses is perused, it appears that their evidence is consistent so far actual incident is concerned. They have also deposed that they have accompanied Mukinda to the hospital and throughout he was unconscious. There are no any material contradiction as suggested by the counsel for the appellants. 11 The another important evidence is medical evidence. P.W.7 Medical Officer Dr. Balasaheb Raosaheb Jadhav, is at Exh.31. In his examination in chief, he has stated that on 25.7.1994, he was working as Medical Officer at Civil Hospital Parbhani. At about 7.00 a.m. on 25.7.1994. P.S.I. Nanalpeth Police Station sent the dead body of Mukinda Sakharam Jadhav for post mortem purpose. He started post mortem at 8.00 a.m. and completed it by 9.00 a.m. He found external injuries on the said dead body. According to him the cause of death was, “due to cardio respiratory failure due to fracture of spine with spinal shock and due to rupture of liver. However, he found internal injuries in the post mortem examination and so he mentioned them in column No. 19(2) of post mortem report. He noticed a fracture of crapl437.99 14 cervical spine. The fracture was in the third vertebra. The size was ½ cm x ½ cm from central disk to lateral side. He opined that the said injury is sufficient to cause death in the ordinary circumstances. This injury is possible by a wooden stump if the assault is in the neck region. The said injury is possible by a weapon like Article No.1 a wooden stump. In his cross examination, he has stated, “If a person falls down on the ground and at the same time if a stone falls on the neck, the injury mentioned in P.M. Report (Exh.32) in column No. 19 is possible.” If the evidence of this witness has taken into consideration coupled with the evidence of the prosecution witnesses P.W.1 and P.W.2 there is no manner of doubt that the appellant accused herein has assaulted on the neck of Mukinda. The prosecution has also proved the recovery of wooden stump from the accused appellant. Therefore, the appellant herein has committed the offence. Upon perusal of the injury certificate mentioned by the Medical Officer, the injury i.e. fracture was in the third vertebra of Mukinda which damage caused due to assault by the appellant-accused. P.M. report in column 19(2) mentions that, ”No sign fracture skull fracture cervical spine c3 vertebra 1/2cm x ½ cm from central disk to lateral side.” Therefore, so far as this internal injuries are concerned, that is crapl437.99 15 consistent with the evidence of prosecution witnesses P.W.1 and P.W. 2 and that the appellant accused herein had assaulted on Mukinda by the wooden stump on his neck. 12 Therefore, in my opinion, there is no any scope of holding that the appellant accused has not committed offence alleged against him. However, the Medical Officer has given cause of death ‘due to Cardio respiratory failure due to fracture spine with spinal shock and due to rupture of liver.’ So far fracture of spine is concerned, the same can be attributed to the appellant-accused. However, there is no evidence to suggest that the accused is responsible for rupture of liver of Mukinda. Both the witnesses have stated that other two brothers caught hold Mukinda now deceased and the appellant Shivaji has assaulted him. However, other two accused persons are acquitted. The appellant Shivaji is convicted on the basis of the evidence of prosecution witnesses and in particular P.W.1 and P.W.2 and the medial evidence and on appreciation of entire evidence. Though this Court is of the opinion that the conviction of the accused under section 325 of I.P.C. deserves to be sustained, however, in the facts and circumstances of this case and in view of the fact that rupture to the liver which is also equally responsible for the death of Mukinda is not by the appellant-accused herein. I also find some force in the arguments of the counsel for the appellant that the incident took place crapl437.99 16 on 24.7.1994 and it was not premeditated act. The incident took place all of a sudden. According to the counsel for the appellant, there was neither any intention nor knowledge that his act will cause death of Mukinda. It is the further argument of the counsel for the appellant that during pendency of the trial the accused appellant was on bail and he has not misused the bail granted to him. He has further submitted that there is no any complaint from the complainant and also regarding the appellant misusing of bail granted to the appellant. 13 Therefore, taking into consideration the entire evidence brought on record and also the submission of the counsel for the appellant, I am of the opinion that the ends of justice would meet if the conviction of the appellant is sustained under Section 325 of I.P.C. and the sentence is reduced to the period already undergone. Counsel for the appellant has submitted that the record shows that the appellant accused has undergone for about five months sentence during the pendency of the trial. The another submission of the counsel for the appellant that the appellant should be released by giving benefit of Probations of Offenders Act is required to be rejected. In the facts of this case, the reliance placed by the counsel for the appellant on the judgment of the Hon’ble Supreme Court and also this Court is wholly misplaced. The crapl437.99 17 Hon'ble Supreme court under Article 142 of the Constitution of India can pass appropriate orders or issue directions to meet the ends of justice. However, in my opinion, invoking of provisions of Section 3 and 4 of Probation of Offenders Act, in a routine manner by this Court would not be proper. Since I am of the opinion that the ends of justice would meet if the sentence is reduced to the period as already undergone, all other prayers of the appellant, stand rejected. In the light of the above circumstances, I deem it appropriate to pass the following order by modifying the judgment and order of the learned Additional Sessions Judge, Parbhani quo the appellant-accused. The order of the learned Additional Sessions Judge, Parbhani qua appellant-accused Shivaji Guja Pawar convicting him for the offence punishable under Section 325 of I.P.C. and sentencing him to suffer R.I. for three years and to pay fine of Rs.1000/- i.d to suffer R.I. for six months, is modified. So far as the sentence is concerned, the sentence as awarded by the learned Sessions Judge Parbhani is reduced to the period already undergone. However, the appellant to pay fine amount of Rs.10,000/- i/d. to suffer R.I. for six months. The order of the Additonal Sessions Judge, Parbhani quo the appellant- accused is modified to the above extent. It is made clear that since the sentence is reduced to the period already undergone by the appellant Shivaji Guja Pawar, he