1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 420 OF 1997 1. Ramchandra Ganpati Pandge age 48 years, occupation agriculture, 2. Venkat Ramchandra Pandge age 24 years, occupation agriculture, 3. Hari Ganpati Pandge .. appellants/ age 36 years, occupation ori.accused agriculture, All residents of Kava, at present at Wasangaon, Taluka and Dist. Latur. versus The State of Maharashtra .. Respondent ori.complt. ------ Shri V.N.Damle, Advocate, with Shri V.D.Gunale, for the appellants. Shri B.V. Wagh, A.P.P. for the Respondent-State. 2 Coram : P.R. Borkar, J. Date : December 3, 2009. ORAL JUDGMENT 01. This is an appeal preferred by original accused, being aggrieved by the judgment and order of conviction and sentence passed by the learned Sessions Judge, Latur, in Sessions Case No.65 of 1996 decided on 17.12.1997. 02. All the three appellants-original accused Nos. 1 to 3 are convicted of offences punishable under Section 324 read with section 34 of I.P.C. so also under Section 447 read with 34 of I.P.C. For offence under Section 324 read with Section 34 of I.P.C., each of the appellants is sentenced to suffer rigorous imprisonment for a period of two years and pay fine of Rs.1000/= each, in default, to suffer rigorous imprisonment for two months. For offence punishable under Section 447 read with section 34 of I.P.C. each of the three appellants is sentenced to undergo simple imprisonment for one month and to pay fine of Rs.100/=, in default, to suffer simple imprisonment for fifteen days. Appellants No. 1 and 2-original accused Nos. 1 and 2 are further convicted for offence punishable under Section 326 read with 3 section 34 of I.P.C. and only accused No.1 is sentenced to suffer rigorous imprisonment for a period of two years and to pay fine of Rs.1000/=, in default, to suffer rigorous imprisonment for two months for said offence. As far as accused No. 2 Venkat is concerned, he is also convicted separately for offence punishable under Section 326 of I.P.C. and sentenced to suffer rigorous imprisonment for a period of five years and to pay fine of Rs.1000/=. All the substantive sentenced are directed to run concurrently. 03. Briefly stated, it is the case of the prosecution that survey No.150 of village Wasangaon, Taluka and District Latur, was owned by PW-4 Ram Gore. The adjoining land was purchased by the present appellants from the brother of said Ram Gore. The appellants also wanted to purchase land of PW-4 Ram Gore and, therefore, they proposed Ram Gore that he should either hand over possession of his land to them for cultivation, or sell the same to them. Since Ram Gore was not ready, the appellants were harassing him and his family members. There was enmity between the families of said Ram Gore and the appellants and there were several cases filed by the two families against 4 each other. It is also not disputed that appellant No.1 is father of appellant No.2; and appellant No. 3 is brother of appellant No.1. 04. It is the case of the prosecution that on the day of incident i.e. 21.1.1996 at about 5.00 p.m., PW-3 Vitthal and PW-5 Pandurang, sons of PW-4 Ram Gore, were grazing their cattle in their land survey No.150. At that time, appellants-accused went there and asked them to give their land to the appellants either for cultivation or by way of sale. PW-3 Vitthal and PW-5 Pandurang told the appellants that the matter is already pending in the court. Being enraged, PWs 3 and 5 were beaten by the appellants with with iron rod as a result of which PW-3 Vitthal sustained injury on his head and right arm and PW-5 Pandurang sustained injury to his left arm. PW-4 Ram Gore came in the land and persuaded the accused to go away. It is also the prosecution case that while appellant Nos. 1 and 3 were returning on motorcycle, appellant No. 2 followed them on bicycle and near Maroti temple, at the instance of appellant No. 1, appellant No. 2 gave blow with iron bar on the head of PW-6 Venkuram. PW-6 Venkuram was then accompanied by his servant PW-7 Govind Survase. PW-6 Venkuram 5 sustained serious head injury and as a result, fell down. PW-7 Govind went to the village and informed the incident to Sukhram Patil-the brother of PW-6 and both came to the place of incident and took Venkuram to hospital. PW-3 and PW-5 (Vitthal and Pandurang) also went to the police station, where PW-3 lodged complaint (Exh.23). All the three injured were sent to hospital. Injury to PW-6 Venkuram was serious. He had to be operated upon by Dr.Kukade (PW-10). After usual investigation was carried out, charge sheet was sent to the Court. 05. Heard learned counsel Shri V.N. Damle holding for Shri V.D.Gunale on behalf of the appellants and Shri B.V. Wagh learned A.P.P. for the Respondent-State. 06. It is defence of the appellants that they had purchased land of brother of Ram Gore (PW-4) and developed the same by bringing well water from long distance by laying a pipeline and thus they prospered after purchase of land of brother of PW-4. PW-4 Ram Gore wanted to purchase the said land of his brother, but the brother refused. Therefore, due to said refusal by brother and due to prosperity of the 6 appellants-accused, PW-4 Ram Gore and his family had become jealous about the appellants and, therefore, several cases were filed between them. On the day of the incident, cattle of PW-4 Ram were grazing into the sugarcane crop of the appellants-accused. So a quarrel took place between the accused-appellants on one hand and PW-3 and PW-5 on the other, in the land of the accused. No other incident had taken place. However, taking advantage of the fact that Venkuram sustained injury, appellants were falsely involved in this concocted case. It is also argued by Advocate Shri Damle that if really the appellants-accused wanted to give thrashing by entering into the land of PW-4 Ram Gore, then PWs 3 and 5 would have received more serious injuries than they had actually received. 07. On behalf of the Respondent-State it is submitted by Shri B.V. Wagh, learned A.P.P. that as disclosed by PW-6 Venkura, it was the impression of the appellants that PW-6 Venkuram and his father Keshavrao were supporting the complainant and his family and they were behind the complaint filed against the appellants and that the father of Venkuram was Police Patil and that is why Venkuram was injured by the appellants holding him responsible for criminal 7 case filed against the appellants by the family of PW-4 Ram. 08. In order to prove its case, the prosecution examined PW-3 Vitthal at Exhibit 22, PW-5 Pandurang at Exhibit 25. As per evidence of PW-3 Vitthal, on 21.1.1996 at about 5.00 p.m. accused entered their land. Accused No. 3 said that the prosecution witnesses have become arrogant. At that time appellant No.2 Venkat gave blows of iron bar on his right hand and head and appellant No.1 gave blow of iron bar on his left hand. Accused No. 3 instigated other accused and gave fists and kicks blows to PW-3 Vitthal and PW-5 Pandurang, by saying that they should be killed. At that time, PW-4 Ram Gore intervened and pacified the accused and settled the matter. 09. It is argued on behalf of the appellants before me that evidence of PW-3 Vitthal is full of omissions and improvements. It is brought in his cross examination, paragraph 10, that he did not state in his statement before police that his father had intervened in the matter and pacified the accused and persuaded them to go back. He also did not state 8 details as to which of the accused had given iron bar blow on his hand and head. He also did not state before police that accused No. 3 Hari had instigated other accused and that he had given kicks and fist blows after he had fallen down. It is also not stated that accused Nos. 1 and 3 proceeded on motorcycle and accused No. 2 followed them on bicycle. 10. It appears that, PW-3 Vitthal showed tendency of exaggeration. It is pointed that as per medical certificate of PW-3 proved at Exhibit 29, he had contusion over back, contused abrasion over nose, contused wound on right forearm, abrasion over epigastric region. However, in his deposition Vitthal has stated that he received blows on right arm and head. So, the injuries deposed before the court are not consistent with the medical certificate. All injuries found by the doctor, are not explained by PW-3 Vitthal in his deposition. The blows which he has described in his examination-in-chief did not correspond with the injuries noted by the doctor and mentioned in the medical certificate (Exh.29). So, it appears that Vitthal exaggerated and did not tell whole truth before the court. 9 11. PW-5 Pandurang examined at Exhibit 25 stated that the accused when came towards him and his brother PW-3 Vitthal, said that members of Gore family had become arrogant. Accused No.1 gave blows with iron bar on his left hand and accused No. 2 gave blow of iron bar on right hand and head of Vitthal and accused No. 3 gave blows of kicks and fists on the person of Vitthal. It is pointed out that as per the medical certificate at Exhibit 30, PW-5 Pandurang suffered three injuries viz. contused wound over left arm, abrasion over left forearm and abrasion over epigastric region. These three injuries are not explained by Pandurang to have been caused by accused Nos. 1 and 2. In fact, accused No. 3 did not give any blow to Pandurang as per his examination-in-chief. It was accused No.1 who gave blow on his left hand and there was no injury other than contusion of 1/2"x1/2" on his left arm. Thus, there were three injures, when the deposition is regarding one blow with iron bar. PW-3 Vitthal in his cross examination paragraph 7 admitted that the accused had constructed a well four years before in another land; that they laid pipeline upto their 5 acres of land purchased from brother of PW-4 Ram and irrigated the new land and had grown sugarcane crop. It is also admitted that there were 10 old disputes between the families of appellants on one hand and that of PWs 3 and 5 on the other. 12. Evidence of PW-8 Dr. Malbhage at Exhibit 28, who examined PWs 3 and 5 (Vitthal and Pandurang), shows that the injuries received by them were simple in nature, caused by hard and blunt object and were caused within twenty four hours. He proved medical certificates at at Exhibits 29 and 30 regarding injuries to PW-3 Vitthal and PW-5 Pandurng. In cross examination, Dr. Malbhage stated that injured Venkuram had personally come to him with a reference letter issued by the Police Station Officer of Rural Police Station and that he examined Venkuram at about 7.00 p.m. of the same night. Venkuram had received single injury which was simple in nature. Dr. Malbhage further stated that since his duty was over after giving information to the Surgeon who had come on duty in his place, the said surgeon further attended Venkuram. 13. However, evidence of PW-10 Dr.Kukade at exhibit 35 clearly shows that PW-6 Venkuram had grievous injury. Dr. Kukade stated that when he examined Venkuram on 21.9.2006, he noticed that 11 Venkuram had serious injury and there was contused lacerated wound on the skull of 7 cms upto bone deep. There depressed fracture of skull and also brain edema. These injuries were associated with a contusion on left elbow. The injuries were fresh caused by hard and blunt object. Dr. Kukade had operated PW-6 Venkuram on 25.1.1996 for fracture of skull. It was a comminnutted fracture. So, evidence of Dr. Malbhage that Venkuram had simple injury was wrong. Venkuram had suffer fracture injury of a serious nature. Dr. Kukade has stated that the injury was sufficient in the ordinary course of nature to cause death. 14. So far as evidence of PW-6 Venkuram is concerned, he deposed that on 21.1.1996 at about 5.30 p.m. he was returning village alongwith his servant named Govind (PW-7). Both of them reached near Maruti temple when he saw accused No.1 and 3 coming from backside on a motorcycle and accused No. 2 following them on his bicycle. Accused No.1 raised cry "Hana, Mara Jive Mara" (Beat, assault and do away with his life). Thereafter, accused No. 2 immediately came behind Venkuram and gave blow of iron bar on his head from back side, as a result of which he fell down, but saw accused No. 1 and 3 leaving the place on the 12 motorcycle and accused No. 2 hurriedly peddled away. Venkuram deposed that his shirt was stained with blood. Govind (PW-7) ran towards the village to inform the incident and soon Govind returned back with Sukhdeo the brother of Venkuram. It is further deposed by Venkuram that after he fell down, he felt giddiness and, therefore, could not recollect as to in which hospital he was shifted. PW-6 Venkuram stated that PW-4 Ram Gore used to come to his house and discuss with him as they were on visiting terms. The accused had named brother of Venkuram as the main person behind the complaint and his family members and it is for this reason the accused assaulted Venkuram. He had requested the accused not to indulge into threats and violence. However, accused threatened him for having supported the complainant and his father (PW-3 Vitthal and PW-4 Ram respectively). 15. PW-7 deposed in harmony and consistency with the evidence of PW-6 Venkuram. Absolutely, there is no reason to disbelieve them. It is clear that the statement of Venkuram was not recorded on that day. The evidence of two Medical Officers clearly indicate that condition of PW-6 Venkuram was serious and, therefore, we cannot expect PW-6 Venkuram to give 13 statement before police immediately as medical aid to him was the utmost priority at the relevant time. Therefore, no blame can be attributed to police for not recording his statement immediately. In such circumstances, absolutely there is no reason why PW 6 Venkuram and PW-7 Govind should be disbelieved regarding second incident relating to Venkuram. 16. After having given anxious consideration to the submissions advanced before me on behalf of the appellants, so also Respondent, in my opinion though there is tendency on the part of PWs 3 and 5 to exaggerate the things, the prosecution case is true. 17. So far as first incident relating to PWs 3 and 5 in the land of PW-4 Ram Gore is concerned, already all appellants are convicted for offences under Section 324 read with Section 34 of I.P.C. and under Section 447 read with Section 34 of IPC and therefore conviction for offences under these two Sections is proper. Both the incidents took place in the course of same transaction and motive also appears to be the same i.e. to teach the lessen to the members of the family of PW-4 Ram Gore and his supporters. Learned Advocate Shri Damle rightly argued that the 14 order of conviction suffers serious error inasmuch as accused No. 2 Venkat is convicted twice of the same offence, namely, of offence under Section 326 read with 34 of I.P.C. and also independently of said offence under Section 326 of I.P.Code. However, conviction of accused Nos. 1 and 2 under Section 326 read with Section 34 of I.P.C. and at the same time separate conviction to accused No. 2 for offence under Section 326 of I.P.C. is not legal and proper. The offence under Section 326 of I.P.C. is committed so far as injury to PW-6 Venkuram is concerned. When that injury is caused by accused No.2, he has committed offence under Section 326 of I.P.C. He has caused grievous hurt with deadly weapon like iron bar and, therefore, the order of his conviction under Section 326 of I.P.C. is justified. It can at the most be said that accused No.1 had shared intention with accused No.2 to cause grievous hurt with deadly weapon. So, accused No. 1 could be convicted for offence under Section 326 read with Section 34 of I.P.C., but conviction of accused No.2 under Section 326 read section 34 of I.P.C. is unjustified and will have to be set aside. To that extent, this appeal will have to be allowed. 15 18. In the alternative, Advocate Shri Damle for the appellants submitted that accused No. 2 has been in jail from one year and ten months. He was in detention from 31.1.1996 till he was released on bail vide order of this court on 24.12.1997. So, punishment already undergone be held as sufficient. In this case, offence has taken place on 21.1.1996. The order of conviction is dated 17.12.1997. Accused No. was aged 48 years, accused No. 2was aged 24 years and accused No. 3 was aged 36 years at the time of alleged incident. All the three accused are agriculturists. There is no evidence regarding their previous conviction. So, I am inclined to reduce sentence. 20. In the result, conviction of accused No. 2 Venkat Ramchandra Pandge for offence punishable under Section 326 of I.P.C. is confirmed, however, sentence awarded to accused No.2 for said offence is modified and he is sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default, he shall suffer rigorous imprisonment for one month. However, accused No. 2 is acquitted of the offence punishable under Section 326 read with 34 of 16 I.P.C. and the order of his conviction and sentence for the said offence is set aside. Conviction of accused No.1 Ramchandra Ganpati Pandge for offence punishable under Section 326 read with 34 of IPC is maintained, but his sentence is reduced to rigorous imprisonment for six months and payment of fine of Rs.1000/=, in default, he shall suffer rigorous imprisonment for one month. So far as convictions of accused Nos. 1 to 3 for offences punishable under Sections 324 read with 34 of I.P.C. and 447 read with 34 of I.P.C. are concerned, the same also deserves to be and are accordingly confirmed, but sentences are modified and for each of said two offences, each of the accused is sentenced to suffer simple imprisonment for one month and pay fine of Rs. 500/= each, in default, each of them shall suffer simple imprisonment for one week. All substantive sentences shall run 17 concurrently. Accused Nos. 1 to 3 were stated to be in jail during the period 31.1.1996 to 30.12.1997. They are, therefore, entitled to set off under Section 428 of the Code of Criminal Procedure, 1973. So far as accused Nos. 1 and 3 are concerned, they have already undergone the sentence. Accused No.2 Venkat Ramchandra Pandge shall surrender to bail to undergo remainder of the sentence within a period of five weeks from today. As per endorsement on the judgment, fine amount of Rs.5300/= is paid on 30.12.1997. The appeal is thus partly allowed and disposed of. pnd/criapl420.97 (P.R.BORKAR, J.)