1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.268 OF 1997 1. Rajdhar Damu Patil, Age 54 years, 2. Kamalbai Rajdhar Patil, Age 45 years, 3. Mehendra Rajdhar Patil, Age 17 years, All residents of Domgaon, Tq. & Dist. Jalgaon. ... Appellants. Versus The State of Maharashtra ... Respondent. ... Mr. S.P.Brahme, advocate for the Appellants. Mrs.R.D. Reddy, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 11.08.2009. ORAL JUDGMENT 1. Challenge in this appeal is to judgment 2 rendered by learned Additional Sessions Judge, Jalgaon, in Special Case No.32/1995, whereby the appellants have been convicted for offences punishable U/s 325 read with Section 34 of the I.P.C. and have been sentenced separately. The appellant No.1 is sentenced to suffer rigorous imprisonment for six (6) months and to pay fine of Rs.50,000/- (Rupees fifty thousand), in default to suffer rigorous imprisonment for one (1) year. The appellant Nos.2 and 3 are sentenced to suffer rigorous imprisonment for 15 (fifteen days) and to pay fine of Rs.500/- (Rupees five hundred), in default to suffer simple imprisonment for one (1) week. Out of the fine amount imposed, an amount of Rs.50,000/- (Rupees fifty thousand) is directed to be paid to P.W.Sakhubai, by way of compensation U/s 357 of the Cr.P.C. 2. Briefly stated, the prosecution case was that deceased Vana Devsingh Sonawane was member of Bhil community and use to reside in a small hut situated at village Dongaon. The appellant No.1 is Police Patil of the said 3 village. The appellant No.2 is the wife and appellant No.3 is the son of the appellant No.1. A married daughter of deceased Vana had died in her matrimonial home at village Pimpri-hat before about one month of the incident in question. She had received burn injuries and died within a short period after her marriage. In the evening of 10.9.1995, deceased Vana was found addressing abuses to the father-in-law of his deceased daughter by name Asha and was also addressing abuses in name of the Police Patil. He was accusing that the Criminal case in respect of death of said Asha was suppressed by the Police Patil. While passing from the nearby road, the appellant No.2 heard said abuses given and accusations made by deceased Vana. On reaching the house, she informed the appellant No.1 about such misconduct of deceased Vana. Thereafter, the appellants immediately went to the hut of deceased Vana. All of them started beating him by means of fists and kick blows. The appellant No.1 took out a shoe and dealt blows thereof on chest, abdomen and back of Vana. Some persons gathered around the place. The appellant No.1 was 4 so enraged that he did not allow any one to come near the place and intervene. On receiving the information, old aged father of Vana reached the place and tried to plead with the appellants. It was of no avail. The appellants continued the beating. Eventually, Vana fell down in injured condition. Blood started oozing from his right ear. He immediately breathed his last. His old aged father approached MIDC Police Station at Jalgaon and lodged a report in the next early morning. The Police carried out certain investigation as a result of which the appellants were charge-sheeted for offences punishable U/s 302 read with Section 34 of the I.P.C., U/s 504 read with Section 34 of the I.P.C. and U/s 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. At the trial, the prosecution examined in all eight (8) witnesses in support of its case. The learned Sessions Judge came to the conclusion that the appellants had no intention to cause death of deceased Vana. The learned Sessions Judge also held that there was no 5 material placed on record to infer that the appellants intentionally insulted deceased Vana on the ground of his being member of a Scheduled Caste or Scheduled Tribe. The learned Sessions Judge, however, accepted the case of prosecution to the extent that deceased Vana was assaulted by the appellants in the relevant evening and they voluntarily caused him grievous hurt in pursuance to their common intention. They were accordingly convicted and sentenced as described hereinabove. 4. Heard learned counsel for the appellants and Mrs.R.D. Reddy, learned A.P.P. for the State. 5. Before I proceed to scrutinise the prosecution evidence, it may be stated that there is no dispute about the fact that deceased Vana was aggrieved due to untimely death of his daughter by name Asha. It is also undisputed that he was found dead due to injuries which were noticed by P.W. Dr.Gunwant Bhole, while conducting the post-mortem examination on 11.9.1995. There were three visible injuries on 6 his person. They were as follows : "1) Oedema in front of right ear parietal area upto angle mandible right 3" x 3". 2) Contusion 1" lateral on right side in 3rd and 4th intercostal space 1/4" x 1/4" each. 3) Swelling at renal angle right side 3" x 3". The Medical Officer5 noticed internal fracture injuries of sternum, haematoma and other injuries as indicated in the post-mortem notes (Exh.30). The deceased Vana was aged about 35 years as shown in the post-mortem notes. 6. The recitals of the spot panchanama (Exh.33) reveals that the incident occurred in front of the hut of deceased Vana. The Police and panchas noticed stains of blood at a distance of about 5 ft. on eastern side ahead of the entrance of the hut. The hut was of mud walls 7 and thatched roof. The topography of the spot of incident would show that the incident of assault must have taken place just in front of the hut of deceased Vana. This is a glaring fact. 7. Though, the prosecution examined P.W.3 Abhiman and P.W.6 Pandit as two independent eye witnesses, yet, both of them were declared hostile. They did not corroborate the case of the prosecution. Their versions are of no much avail to the prosecution. The version of P.W.1 Ratan partly corroborates the recitals of the spot panchanama (Exh.35). The evidence tendered by P.W.7 ASI Tarachand purports to show that on 10.9.1995, he recorded the FIR (Exh.26) as per version of P.W.2 Devsing. The investigation was conducted by P.W.8 PSI Ramesh Sawant. He narrated the steps taken during the course of investigation. 8. The prosecution heavily relied upon versions of P.W.2 Devsing and P.W.5 Sakhubai. They are the father and wife of deceased Vana. On consideration of their versions, it is amply 8 clear that both of them are illiterate, rustic and rather candid witnesses. Without reservations, P.W. Devsing admitted that deceased Vana use to deal in illicit liquor business. He use to deal in distillation of illicit liquor and so also some other members of the Bhil community were indulging in such a business which was not approved by the appellant No.1. The appellant No. 1 had opposed illicit distillation of country liquor in the village area. The version of P.W.Sakhubai reveals that she was unable to locate time whilst in the witness box and her understanding of the movements of the hands of clock was quite poor. 9. The most important version is that of P.W. Sakhubai. Her presence at the hut is quite natural. She being wife of deceased Vana, it is but natural that she was present at the spot of the incident in question. Her version reveals that that at about 4-30 p.m., the appellant No.2 was passing by the road with head load of grass and then she inquired with Vana as why he was abusing. Thereupon deceased Vana replied, he was 9 abusing the Police Patil of village Pimpri. The version of P.W. Sakhubai reveals that the appellant Nos.1 to 3 came in front of her hut after a short while and started beating her husband (Vana). She narrated that though deceased Vana was bowing down before all the appellants and was pleading with them, yet, they continued beating on his abdomen, chest, head and back side. Her version reveals that blood had started oozing from the ear of deceased Vana. Her sister-in-law by name Sukhamabai and herself urged the appellants to stop the beating but both of them were slapped by the appellant No.1. Her version reveals that after arrival of her father- in-law, the appellant No.1 dealt blows of a shoe on person of Vana and thereafter the latter fell down. They noticed afterwards that Vana was no more. She identified the apparels of deceased Vana. 10. Though P.W.Sakhubai is close relative of deceased Vana, yet, she can not be disbelieved only for such a reason. Her cross-examination shows that she had gone to inform her father-in- 10 law while the beating was going on. She admits that when they returned, her husband was found lying in injured condition in the midst of the crowd gathered around the place. It is difficult to countenance the argument of learned counsel for the appellants that due to such admissions, presence of P.W.Sakhubai at the time of the incident is rendered doubtful. It can be stated, however, that she noticed the commencement of the assault and might have immediately gone to house of her father-in-law and by the time he and herself returned to the place of incident, the incident had come to fag end of the beating. Nothing of much importance to be gathered from her cross-examination. She admits that she was unable to tell the time with reference to the hands of the clock which was hung on the wall of the Court-hall. The poor Adiwasi woman can not be disbelieved only because she was unable to locate the time with reference to the clock. The learned Sessions Judge had an occasion to watch her demeanour whilst she was in the witness box. Obviously, the assessment of the evidence by the learned Sessions Judge will have to be given 11 due weightage. 11. Though P.W.2 Devsing claims to be the witness of the incident, yet, it is difficult to accept his version in toto. He reached the spot of the incident after some time when he was informed by his daughter by name Sukhamabai that the Police Patil was beating said Vana. This part of his statement appears to be based on hear-say information. Said Sukhamabai was not examined by the prosecution. His version reveals that he went to the hut of deceased Vana after receiving such information. He noticed that the appellants were beating Vana while the latter was shouting. He corroborated the recitals of the FIR (Exh.26). His cross-examination would show that he was unable to identify whose photographs were hung on the opposite wall in the Court hall. He was unable to see the photographs from the distance of 20 ft., even so, he claimed that he had seen the incident from the distance of about 30 ft. He was aged about 72 years at the relevant time. He admitted that his vision was impaired since about couple of years before he 12 entered the witness box. The old aged witness may not have been able to see the occurrence and possibly spelt out about the incident due to the information which he had received from his daughter. 12. There is no substantial reason coming forth to dislodge the version of P.W. Sakhubai. As stated before, her presence at the spot is natural. Her version indicates that she is a rustic woman. She had no business to falsely implicate the appellants. The learned Sessions Judge was right, therefore, in believing her testimony. There is no rule of law which requires independent corroboration to such eye witness account tendered by a candid and reliable witness. Hence, I deem it proper to place reliance on her version and hold that the appellants assaulted deceased Vana in the relevant evening at the place in front of the hut of the deceased. 13. The question which remains to be considered is about nature of the offence proved 13 from the facts which are established. The learned Sessions Judge convicted the appellants for offence U/s 325 read with Section 34 of the I.P.C. on the basis of the proved facts. For the purpose of guilt U/s 325 of the I.P.C., it is necessary to prove that the accused intentionally caused grievous hurt to the victim. The learned Sessions Judge was required to conjointly read Sections 322, and 325 of the I.P.C. in order to properly convict the appellants. Section 322 of the I.P.C. reads as follows : "322. Voluntarily causing grievous hurt.- Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said voluntarily to cause grievous hurt". Explanation. - A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to 14 be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind." A plain reading of explanation appended to Section 322 of the I.P.C. would show that there is negative concept added by the expalnation. It goes without saying that unless it is proved that the accused causes grievous hurt and also intends or knows himself to be likely to cause grievous hurt to the victim, it can not be said that he has voluntarily caused the grievous hurt. In other words, there must be presence of intention to cause the grievous hurt. In the peculiar fact situation of the present case, what emerges from the record is that no weapon was used during the course of assault. The appellants were allegedly giving kick blows and the fist blows to deceased Vana. The incident was out-come of their angry reaction to the abuses addressed by him in the relevant evening. Under the circumstances, it can 15 not be said that there was intention to cause grievous hurt to deceased Vana. It is another thing that due to severe beating, he sustained grievous hurt. He died due to the internal fractures and damage caused but the external injuries would show that there was no use of any dangerous weapon nor there was intention to cause the grievous hurt. It is also significant to note that P.W.Sakhubai did not say anything about utterances of the appellants which could spell out their intention to cause grievous hurt or death of said Vana. In this view of the matter, they should have been convicted only for the offence U/s 323 read with Section 34 of the I.P.Code. 14. Once it is found that the proper order of conviction ought to be for offence U/s 323 read with Section 34 of the I.P.C., the order of sentence will have to be properly moulded and altered. The learned Sessions Judge did not properly appreciate import of Section 6 of the Probation of Offenders Act, 1958. The appellant No.3 was admittedly below 21 years of age as per 16 the recitals of the charge-sheet. His age is at the material time was of 17 years. Section 6 of the Probation of Offenders Act, would make it amply clear that when any person under 21 years of age is found guilty of having committed an offence punishable with imprisonment, it is mandatory that he shall not be sentenced to imprisonment unless, the Court is satisfied that it would not be desirable to deal with him U/s 3 or U/s 4 of the Probation of Offenders Act. The learned Sessions Judge, did not ascribe any reason as to why the appellant No.1 was not found entitled to the benefit of Section 3 or Section 4 of the Probation of Offenders Act. The appellant No.3 is not a habitual offender. There were no bad antecedents reported against him. Hence he could not have been sentenced to suffer any imprisonment or to pay fine. It would be appropriate, therefore, to direct that he shall be released on execution of a bond to keep good behaviour for a period of two (2) years. The appellant No.2 is a woman and except vague allegations that she also participated in the assault, there is hardly any material to infer 17 that she used excessive force. The learned Sessions Judge, noticed that she has already undergone imprisonment since 11.9.1995 to 27.9.1995. The appellant No.1, however, does not deserve leniency. The fine amount can not exceed amount of Rs.1,000/- (Rupees one thousand) in view of specific embargo which can be gathered from language of Section 323 of the I.P.C. 15. Considering the foregoing reasons, I deem it proper to confirm the order of conviction only to the extent of offences punishable U/s 323 read with Section 34 of the I.P.C. and alter the sentence. The appeal is partly allowed. Instead of conviction for offence U/s 325 read with Section 34 of the I.P.C., the appellants are convicted for the offence punishable U/s 323 read with Section 34 of the I.P.C. The appellant No.1 is sentenced to suffer rigorous imprisonment for six (6) months and to pay fine of Rs.1,000/- (Rupees one thousand), in default to suffer rigorous imprisonment for one (1) month instead of the sentence of rigorous imprisonment for six (6) months for offence U/s 325 of the I.P.C. and 18 fine of Rs.50,000/- (Rupees fifty thousand), in default to suffer rigorous imprisonment for one (1) year. He is also directed to pay compensation amount of Rs.25,000/- (Rupees twenty five thousand) to P.W.5 Sakhubai as provided U/s 357(3) of the Cr.P.C. 16. Instead of conviction for offence U/s 325 of the I.P.C., the appellant No.2 is sentenced for offence U/s 323 read with Section 34 of the I.P.Code and instead of sentence awarded to her by the trial Court, she is directed to be released on the term which has already undergone by her and to pay fine of Rs. 5,000/- (Rupees five thousand), in default to suffer simple imprisonment for three (3) months. 17. The appellant No.3 is convicted for offence U/s 323 read with Section 34 of the I.P.Code. instead of U/s 325 of the I.P.C. and is directed to be released on entering into a bond U/s 3 of the Probation of Offenders Act, 1958, to keep good behaviour for a period of two (2) years instead of the sentence of rigorous imprisonment 19 for 15 days (fifteen) and fine of Rs.500/- (Rupees five hundred) as imposed by the Sessions Court. With this modification in the order of conviction and sentence, the appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/Crappeal26897