cria387.98 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.387 OF 1998 1) Ramesh s/o Jagannath Sonwane, Age-31 years, 2) Ramdas s/o Jagannath Sonwane, Age-20 years, 3) Santosh s/o Jagannath Sonwane, Age-25 years, All R/o-Varad, Tq-Erandol, Dist-Jalgaon. ...APPELLANTS. VERSUS The State of Maharashtra. ...RESPONDENT. ... Shri.A.N. Nagargoje Advocate h/f. Shri. V.J. Dixit Advocate for Appellants. Shri.N.H. Borade, A.P.P. for Respondent- State. ... CORAM: T.V. NALAWADE, J. DATE : 29TH JUNE, 2011 cria387.98 2 JUDGMENT : 1. This Appeal is filed against the Judgment and Order passed in Sessions Case No.209 of 1997. The Judgment is delivered by IVth Additional Sessions Judge, Jalgaon and all the Appellants are convicted for offence punishable under Section 325 read with 34 of the Indian Penal Code and they are sentenced to suffer imprisonment and also to pay fine. 2. The facts leading to the institution of the Appeal can be stated as follows: . Deceased Vishram Jagannath Sonwane was brother of the Appellants. He was married and he was having issues. He was living separate from his brothers and parents. He was addicted to liquor and after having drink, he used to pick up quarrels. cria387.98 3 . The incident took place on 9th July, 1997 after 6.30 p.m. On that day also the deceased picked up quarrel with his wife and rushed at the wife to give her beating. Accused Ramdas came forward and then other two accused also came forward and they held Vishram. They started convincing him not to quarrel and not to give beating to the wife, but Vishram was not in a mood to listen. The Appellants then tied both the hands and legs of the deceased by using a rope. Jagannath, father of the Appellants then advised the Appellants to take Vishram to outpost of Police Station. The Appellants and some other persons kept Vishram in a bullock card and they left the village. 3. After crossing some distance, the bullock cart was stopped and then the Appellants gave beating to Vishram. They returned to the house of Vishram after one and half hours and they kept him cria387.98 4 in his house. The hands and legs of Vishram were still in tied condition. It was at about 9.00 to 9.30 p.m. The wife of Vishram, namely, Kokilabai, noticed that there was swelling on the hands of Vishram. On that night, Kokilabai went to bed. In the night time, Vishram gave call to her and he asked her to give drinking water. After drinking some water, Vishram disclosed to his wife that the Appellants had given beating to him after taking him out of the village. Vishram was not feeling well. Kokilabai went to bed again. 4. At about 6.00 a.m., on the next day, when Kokilabai tried to wake up her husband, she noticed that he was not making any movement. She realized that he was dead. She called the relatives including the Appellants. Police Patil was also called and he contacted Police of Dharangaon Police Station. Head Constable Hiraman Mahajan saw the dead body and after noticing the injuries on dead body and after making enquiry, he cria387.98 5 referred the body for post mortem examination. The post mortem report showes that Vishram died due to injuries to his lung and brain. As there were surface injuries, Head Constable Mahajan gave report. On the basis of this report, the crime came to be registered at C.R. No.109 of 1997 in Dharangaon Police Station, for offence punishable under Section 302 read with 34 of the Indian Penal Code. 5. P.S.I. Sonwane who was attached to Dharangaon Police Station, made the investigation of the case. He recorded statements of witnesses, including the persons who had gone with the bullock cart and who had witnessed the incident of assault and also recorded the statement of widow of the deceased. The witnesses were produced before the Magistrate for recording statements under Section 164 of the Code of Criminal Procedure. Panchnama of the house of the of the deceased was prepared. The Appellants came to be cria387.98 6 arrested. During course of investigation, accused Ramdas gave statement to Police and the rope used to tie Vishram came to be discovered from the house of Ramdas. The rope came to be seized. After completion of investigation, chargesheet came to be filed. The J.M.F.C., Erandol committed the case to the Court of Sessions. In the Sessions Court, charge came to be framed for offence punishable under Section 302 and 34 of the Indian Penal Code. The Appellants pleaded not guilty. The chargesheet was filed against father of the deceased also. The prosecution examined in all eleven (11) witnesses before the trial Court. The trial Court convicted only brothers of the deceased but for offence punishable under Section 325 read with 34 of the Indian Penal Code. The trial Court has relied on the evidence of the widow. Each Appellant is sentenced to suffer imprisonment for six months and also fine of Rs.100/- (Rupees Hundred). 6. In Appeal, both the sides are heard. The cria387.98 7 Advocate for the Appellants submitted that there is no direct evidence and the circumstantial evidence is also not sufficient to point finger only to the Appellants. It is submitted that the trial Court has committed error in believing the widow of the deceased, who materially improved her version. On the other hand, the A.P.P. submitted that there is sufficient material and the medical evidence is consistent with the evidence of the widow of the deceased. Alternatively, for the Appellants, argument was advanced that one of the Appellant had not completed 21 years of age at the relevant time and other Appellants are also youngsters and so the benefit of provisions of the Probation of Offenders Act, 1958, needs to be given to them. It was submitted that the trial Court has not even discussed this point. 7. Though eleven witnesses are examined by prosecution, the main witness of prosecution is Kokilabai (PW-7), widow of the deceased. She has cria387.98 8 given evidence that on that day when she returned from field, the deceased gave her beating and then the accused came there. She has given evidence that accused Santosh and Ramdas held Vishram and they tied both the legs and hands of Vishram by using rope. She has deposed that father of these accused gave them Rs.100/- and advise was given to take Vishram to Paldhi outpost. She deposed that accused Ramesh, Ramdas and Santosh kept Vishram in tied condition in bullock cart and they left the village. She has given evidence that witnesses Nimba and Nana also left with the bullock cart. 8. Kokilabai has given evidence that the accused returned to the village after one and half hours and they kept the deceased in "Osari" portion of her house. She has deposed that she noticed that hands of the deceased were swollen and there were bleeding injuries on the legs also. She has deposed that in the mid-night when her husband requested for drinking water, she gave the cria387.98 9 water and then her husband disclosed that accused Santosh, Ramesh and Ramdas and also witness Nimba had given him beating and they had caused him injuries. She has deposed that deceased disclosed that wooden stump was used to assault him. She has deposed that she went to bed and in the next morning, she noticed that her husband was dead. She has given evidence that she did not approach Police as she was afraid of the Appellants. 9. Police recorded the statement of Kokilabai on 11th July, 1997. It appears that during cross examination, it was suggested to PW-7 that she had not stated before Police that such dying declaration was given to her by her husband. She has denied this suggestion. Similar suggestions are given to P.S.I. Sonwane (PW-11) and surprisingly, he has admitted that the witness had not stated before him that Ramesh, Ramdas and Santosh had given beating to him. This part of evidence is not correctly recorded by the trial cria387.98 10 Court. It was stated before Police that the husband had disclosed that "they had given him beating." PW-7 has given names of the Appellants and name of one witness in this regard. So, accordingly the inconsistency could have been recorded. When there is mention in respect of other part of incident that the Appellants and the two witnesses had taken the husband of PW-7 away from village, not much could have been made due to aforesaid small inconsistency which appears in the evidence of PW-7. In any case, the trial Court has believed PW-7. 10. The evidence of Kokilabai (PW-7) shows that she had seen injuries on the person of her husband and there was also dying declaration made to her by her husband. Dr. Gunwant Bhole (PW-9) is examined to prove the post mortem report. The post mortem report at Exhibit 25 and the evidence of the Doctor shows that there were five surface injuries. There were multiple contusions over the cria387.98 11 right and left wrist, there was contusion over dorasam of both feet, multiple in number. There was contusion over right scapular area and there was haematoma of big size on both bends extending from shoulder to wrist. Doctor has given evidence that on internal examination, he noticed that there was haematoma in right parietal and occipital region. He has given evidence that there was intra cerebral hemorrhage on right parietal lobe. Doctor has given evidence that there was laceration of right lung on back side, at two places. The injuries are said to be ante-mortem in nature and the Doctor has given opinion that death took place due to injuries to brain and lung. Post mortem report Exhibit 25 is consistent with the evidence given by the Doctor in Court. Doctor has given evidence that external injury No.4, the injury on scapular region, had caused injury to lung. He has however, admitted that there was no corresponding external injury with regard to injury found to brain. Though suggestion is given cria387.98 12 to the Doctor that the surface wounds can be caused due to simple fall is admitted, considering the nature of the injuries and different parts of the body where the injuries were caused, it does not look probable that the injuries were sustained due to simple fall. This medical record is consistent with the evidence given by Kokilabai (PW-7). 11. It was argued for the Appellants that the deceased was left to his house at about 9.00 p.m. and throughout the night he was present in his own house and so the accused cannot be blamed for the injuries which are described in the post mortem report. I hold that this submission is not acceptable. There is no reason to disbelieve Kokilabai. All the injuries were grievous in nature and the evidence does not show that after reaching the deceased to his house, he could leave the house. There is ring of truth in the evidence given by Kokilabai. In view of the evidence of cria387.98 13 Kokilabai and the post mortem report, inference can be drawn that the Appellants had caused the injuries to the deceased. The evidence is sufficient to prove that these injuries caused the death. 12. The trial Court has rightly discussed the motive and the trial Court has observed that there was no intention to commit the murder. The trial Court has observed that the injuries found on the person of the deceased were caused voluntarily and so it needs to be presumed that the accused had knowledge that by such act, they were likely to cause grievous injuries to the deceased. The injuries described in the post mortem report can be called as grievous injuries as they have caused the death. Injuries were caused to vital organs and so even when the Doctor has not described the injuries as dangerous to life, in specific words, it can be gathered that the injuries were dangerous to life. These injuries were caused by cria387.98 14 hard and blunt object. In view of this evidence, the accused can be safely convicted for offence punishable under Section 325 read with 34 of the Indian Penal Code. 13. Most of the prosecution witnesses have turned hostile. The contradictions in relation to the previous statement are proved by the prosecution, but in view of the aforesaid circumstances, there is no need to discuss those contradictions. 14. The submission made for the Appellants that benefit of the provisions of the Probation of Offenders Act, 1958 can be given, can be accepted. The record shows that the deceased was harassing everybody and the Appellants had come to his house only to help Kokilabai. Whatever was done by the Appellants, was to teach the lesson to deceased and whatever they were doing, was for the welfare of the family of the deceased. As per the record, cria387.98 15 accused No.2 Ramdas was aged about 20 years at the relevant time. In view of Section 6 of the Probation of Offenders Act, 1958, it was necessary for the trial Court to call the report of probation officer before sentencing him to imprisonment. That was not done. The other two accused were also youngsters and deceased was also young person. It was submitted that all the accused were behind bars as under trial prisoners for at least three months. This circumstance also needs to be kept in mind. Nothing can be achieved by anybody, including the widow of the deceased, by keeping the Appellants behind bars for three more months, as total imprisonment is given for six months. If some compensation is given to the widow, that will help the widow. 15. For the Appellants, Judgment reported in 1996 CRI. L.J. Page 506, Allahabad High Court, (Maharaj Deen and another vs. The State), is relied on, which is on the point of circumstantial cria387.98 16 evidence and the appreciation of circumstantial evidence. The facts of each and every case are always different and so ratio of this case cannot help the Appellants in any way. 16. This Court has come to the conclusion that benefit of provisions of Section 4 of the Probation of Offenders Act, 1958 can be given to the Appellants and some compensation needs to be awarded to the widow of the deceased, under Section 5 of the Probation of Offenders Act, 1958. On the point of sentence and the compensation, hearing was given to the Advocate of the Appellants. He submitted that they are simply labourers and they are not in a position to give big amount. Only due to this circumstance, this Court is of the opinion that each Appellant needs to be made to pay atleast Rs.7000/- (Rupees Seven Thousand) to the widow of the deceased, by way of compensation. Similarly, the amount which is already deposited as fine, can be converted to cria387.98 17 compensation amount and it can be given to the widow. So the following order: O R D E R . Criminal Appeal No.387 of 1998 is partly allowed. The Judgment and Order dated 3rd December, 1998, delivered by the IVth Additional Session Judge, Jalgaon, in Sessions Case No.209 of 1997, is modified as under: (1) The three Appellants, i.e. Appellant No.1 Ramesh Jagannath Sonwane, Appellant No.2 Ramdas Jagannath Sonwane and Appellant No.3 Santosh Jagannath Sonwane, stand convicted for the offence punishable under Section 325 read with 34 of the Indian Penal Code, but instead of sentencing them at once, they are given benefit of the provisions of Section 4 of the Probation of cria387.98 18 Offenders Act, 1958. They are to be released on the bond of good behaviour of the period of one year of the amount of Rs. 15,000/- (Rupees Fifteen Thousand) each. There is no order of supervision. The benefit is given subject to condition that each convict gives Rs.7,000/- (Rupees Seven Thousand) to the widow of the deceased, by way of compensation, under Section 5 of the Probation of Offenders Act, 1958. (2) The bond is to be furnished before the Sessions Court and amount is to be deposited before the Sessions Court, on or before 1st August, 2011. (3) If during the period of one year of the bond, similar offence is committed, the cria387.98 19 Appellants will be liable to undergo the sentence. (4) After depositing the amount of compensation in the Sessions Court, the Sessions Court is to call the widow of the deceased and handover the amount to her. (5) The amount of fine already deposited, is also to be given to the widow of the deceased, as compensation. (6) If the amount of compensation is not deposited in Sessions Court, all the Appellants would be liable to suffer imprisonment for the period which remains to be undergone in view of the order made by the trial Court and in that case, the set off is to be given to them. (7) The other order of the cria387.98 20 trial Court regarding disposal of the property, stands confirmed. [T.V. NALAWADE, J.] asb/JUNE11/cria387.98