Cri. Appeal No. 339/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 339 OF 1999 1. Veernath s/o. Kondappa Ambulge, Age 26 yrs., Occu. Education, 2. Pintu @ Shivkumar s/o. Kondappa Ambulge, Age 18 yrs., Occu. Education, Both R/o. Almala, Tq. Ausa, Dist. Latur. ....Appellants. Versus The State of Maharashtra ....Respondent. Mr. M.L. Dharashive, Advocate for appellants. Mr. G.R. Ingole, APP for State/respondent. CORAM : T. V. NALAWADE, J. DATED : 26th July, 2011. JUDGMENT : 1. This appeal is filed against judgment and order of Special Case No. 6/1998, which was pending in the Court of Extra Joint Sessions Judge, Latur. By the decision dated 18.8.1999, the Trial Court has convicted and sentenced appellant No. 1 for offences Cri. Appeal No. 339/1999 2 punishable under sections 323 and 325 of Indian Penal Code (IPC) and appellant No. 2 is convicted and sentenced for offence punishable under section 323 r/w. 34 of IPC. 2. In short, the facts leading to the institution of the appeal can be stated as follows :- The complainant Mahadeo Landge was working as a labour on annual basis with the father of the appellants. He had started working in the field of the appellants about nine months prior to the date of incident. The father of appellant had given the complainant an amount of Rs. 1,000/- and around 16 kg of Jawar. There was an agreement to pay Rs. 15,000/- per annum as wages. 2. On 10.2.1998 at about 9 pm complainant went to the house of the father of the appellants as he was in need of money. He wanted money for celebration of festival which was on the next day. Appellants gave him 1 kg of rice, but they refused to give cash amount. When he insisted for some amount, appellants gave him abuses by taking name of his caste as "Mhatgya" and "Dhedgya" and they assaulted him. Appellant No. 1 Veernath gave blow of Chappal on the face of the complainant and due to that Cri. Appeal No. 339/1999 3 complainant lost one tooth. Appellant No. 2 gave beating on the back with Chappal and also with kicks and fist blows. 3. On the next day, appellant went to Ausa Police Station and he gave report against the appellants. Crime came to be registered on the basis of report given by complainant at Cr. No. 20/1998 for offences punishable under sections 325, 323 r/w. 34 of IPC and also for offence under section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act) and under section 7 (1) (d) of the Protection of Civil Rights Act, 1955 (PCR Act). The complainant was referred for medical examination. Statements of some witnesses including the wife of complainant came to be recorded. The caste certificate came to be collected and the charge-sheet came to be filed in the Special Court. Charge came to be framed for aforesaid offences. Both the accused pleaded not guilt. The prosecution examined in all 7 witnesses. The appellants took the defence of total denial. However, they have admitted in the statements given under section 313 of Criminal Procedure Code ( Cr.P.C. ) that the complainant was working as labour with them and on that day he had come to them for demanding money. The Trial Court has acquitted both the accused of the offences punishable under Cri. Appeal No. 339/1999 4 Atrocities Act and under PCR Act. The sentence of imprisonment of one year is given to appellant No. 1 and sentence of imprisonment till rising of the Court is given to appellant No. 2. Fine amount of Rs. 500/- is imposed for offence punishable under section 323 and fine of Rs. 2000/- is imposed for offence punishable under section 325 of IPC. 4. In the appeal, both the sides are heard. Some inconsistencies and improvements in the evidence in relation to the report given by the complainant were pointed out for the appellants. Alternate submission was made that a lenient view can be taken as the complainant was old, having around 14 teeth and he lost one tooth in the incident. The APP supported the decision of the Trial Court. 5. Mahadeo (PW 2), the complainant, has given evidence that he was engaged as labour by father of the accused and there was an agreement to pay Rs. 15,000/- per annum as wages. He has deposed that he had worked for about 9 to 10 months and the father of the appellants was in dues of the payment of amount in respect of six months. He has deposed that he had gone to the house of the appellants as he was in need of money for celebration of festival which was on the next day of incident. He has deposed Cri. Appeal No. 339/1999 5 that when he was waiting in the house of appellants, the appellants came there and they gave abuses. He has deposed that after hearing the abuses, he said that he would not again come to their house, if the amount due to him is paid and then Veernath assaulted him with Chappal and fist blows. He has deposed that due to the assault made by Veernath, he lost one tooth. He has deposed that accused No. 2 Pintu gave blow of Chappal on his back. He has deposed that Kashinath, Dhondiram and son of Dhondiram came there after hearing hue and cry and they intervened in the incident. He has deposed that attempt was made to assault him by accused No. 1 by using stick also, but Kashinath held the stick. He has deposed that Kashinath promised to convince the appellants and he returned to the house. He has deposed that when on the next day Kashinath said that the appellants were not in a mood to listen, he approached police. He has deposed that the report at Exh. 22 was given by him and then he was referred to Rural Hospital, Ausa for medical examination. 6. The tenor of cross examination of the complainant shows that both the accused have not disputed that the complainant was working as labour and the payment was to be made on annual basis. Complainant has deposed that no advance amount was paid Cri. Appeal No. 339/1999 6 to him and the father of appellants was in dues of some amount, so he had gone there to demand money. It is only suggested that he was engaged on daily wages basis. In view of the admission given in the statements under section 313 of Cr.P.C., this part of evidence needs no more discussion. Some suggestions are given that at the instigation of political rival, complaint is made, but the suggestions are denied and nothing is brought on record to create probability that the complainant has some reason to falsely implicate the appellants. When the complainant was working as labour in the field of the appellants, it needs to be presumed that prior to the date of incident, the relations of appellants with complainant were cordial. The report given by the complainant, Exh. 22, is consistent with the oral evidence on material points. 7. Kashinath (PW 4) is a neighbour of the appellants. He has given evidence that when he heard the noise of the quarrel, he went to the house of appellants and he saw that appellants were pushing the complainant. He has also deposed that on the inquiry, appellants told that they had given rice to the complainant. Though this witness has not wholeheartedly supported the case of the prosecution, the evidence given about some part of the incident can be used for corroboration purpose. The tenor of the Cri. Appeal No. 339/1999 7 cross examination shows that the defence has not denied the presence of this witness on the spot. Though the name of the witness is not mentioned in the FIR, in view of the aforesaid circumstances, there is no reason to disbelieve the evidence given by Kashinath. 8. Dhondiram (PW 5) has given evidence that he had also rushed to the house of the appellants after hearing about the incident. He is uncle of the appellants and he has deposed that quarrel was going on between accused on one side and the complainant on the other. He has also not wholeheartedly supported the entire case of the prosecution. But the evidence given by this witness that there was quarrel at the relevant time, can be used for the purpose of corroboration. Begabai (PW 6) is the wife of complainant and she has given evidence that when complainant returned to him after the incident, he was weeping and he disclosed the incident to her. 9. Spot panchanama was prepared. There was nothing on the spot when panchanama was prepared on 11.2.1998 and so that evidence needs no more discussion. Dr. Gaus (PW 1) is examined for proving the MLC. Doctor has deposed that he examined Cri. Appeal No. 339/1999 8 complainant on 11.2.1998 at about 1.45 pm and he found one contusion over interscapular region, one contusion over right infra clavicular region and there was also loss of second premolar tooth of upper jaw of left side. He has deposed that there was bleeding and injuries were sustained within 24 hours. He has deposed that the injuries were caused by hard and blunt object. This evidence is consistent with the evidence of complainant. Much was argued for the appellants in respect of circumstances that in the Court complainant has tried to say that stick was also used and there is no mention of the stick in FIR. This improvement has not weakened the evidence of complainant. The other part of the evidence shows that complainant's evidence that Chappal was used at his face for making assault is consistent with the FIR. Doctor has admitted that if a person has forcible fall, such injuries can be caused. In view of the aforesaid evidence, this Court holds that the injuries were not caused in fall and they were caused due to assault made on the complainant. Doctor has given evidence that there were 14 teeth in the jaw of the complainant and if the tooth is not firm in the jaw, it can fall due to slight blow. This circumstance can be considered only at the time of giving of sentence. The evidence shows that the medical evidence is consistent with the oral evidence. Cri. Appeal No. 339/1999 9 10. The aforesaid evidence is sufficient to prove that the appellant No. 1 assaulted the complainant with Chappal and due to that complainant lost one tooth. The evidence is also sufficient to prove that the appellant No. 2 gave beating atleast by fist blows and kicks, if not with Chappal. Their neighbours and relatives have given evidence against them and the incident is proved by aforesaid evidence. Only due to the relations between parties and the fact that the complainant lost one tooth in the incident, this Court holds that nothing can be achieved by keeping the appellant No. 1 behind bar. The complainant can be compensated by giving some compensation for loss of tooth and the imprisonment for the period undergone till rising of the Court would be just and sufficient. For that purpose, the appeal can be allowed partly. So the order. O R D E R 1. Appeal of appellant No. 1 Veernath s/o. Kondappa Ambulge is partly allowed. The appeal of appellant No. 2 Pintu @ Shivkumar s/o. Kondappa Ambulge stands dismissed. 2. The judgment and order of the Trial Court in respect of Cri. Appeal No. 339/1999 10 appellant No. 1 Veernath is modified. Appellant No. 1 Veernath is convicted for offence under section 325 of IPC and he is sentenced to suffer imprisonment for the period undergone and to pay fine of Rs. 10,000/- (Rupees ten thousand). He has already paid amount of Rs. 2500/- and so remaining amount of Rs. 7500/- is to be deposited within one month. If the amount is not deposited, he is to undergo RI for one year. The fine amount is to be given to the original complainant as compensation. Fine amount to be deposited in Sessions Court and Sessions Court to make the payment to original complainant. 3. Separate conviction and sentence of accused No. 1 Veernath for offence under section 323 r/w. 34 of IPC is set aside. 4. Other part of operative order of the Trial Court is maintained. [ T. V. NALAWADE, J.] ssc/cria339.99