1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 342 OF 2006 Ashok S/o Janardhan Shinde, Age : 23 years, Occ : Service, R/o Sakala Plot, Lohgaon Road, Parbhani. ..APPELLANT - VERSUS - 1 State of Maharashtra (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad). 2. Bandu S/o Rustumrao Gavali, Age : 25 years, Occ : Labour, R/o Sakala Plot, Parbhani, Near Gangakhed Railway Gate (Naka), Parbhani, Tq. & Dist. Parbhani. ..RESPONDENTS Mr. S.B. Ghatol Patil, Advocate for the appellant. Mr. S.N. Kendre, A.P.P. for respondent no.1/State. CORAM : A.V. NIRGUDE, J. DATE : 21st October, 2010. ORAL JUDGMENT :- 1. This appeal is filed against the Judgment and Order passed by the learned 3rd Adhoc Additional Sessions Judge, Parbhani (For short, `the learned Judge') dated 8th March, 2006 in Sessions Case No.23 of 2004. The learned Judge convicted the appellant for the offence punishable under Section 324 of the Indian Penal Code and instead of sentencing him to suffer substantive sentence, gave him benefit of Probation of Offenders Act and asked him to execute a bond of good behaviour of three years. He also directed the appellant to pay compensation of Rs. 2 5,000/- to victim/prosecution witness no.2. The prosecution case is as under: The appellant and one more person on 3rd November, 2002 at about 8 pm. went to the house of the complainant and assaulted the complainant's grand son Ashok. This incident attracted attention of the complainant's sister. The appellant and his companions soon left the spot. The complainant, his sister and complainant's son Bandu, went to Police Station to lodge a complaint regarding the incident. After lodging of the complaint, they started to walk back to their house. At about 10 pm when they reached a level crossing of Railway line, the appellant and four more persons accosted them and started abusing them. They soon launched attack on Bandu. In the attack, the appellant stabbed Bandu on his thighs and abdomen. Bandu is prosecution witness no.2. The complainant and others took Bandu to Police Station and then to hospital at 10.30 pm. The Medical Officer at Civil Hospital examined his injuries and noted down the description of the same in his Medico-legal register. After midnight at about 1 am, the complainant lodged his complaint against the appellant and others. The offence under Sections 147, 148, 149, 307, 323, 504 and 506 of the Indian Penal Code was registered against the appellant and other named assailants. After investigation the charge sheet was filed. 2. As said above, after the trial, the learned Judge came to conclusion that the prosecution could prove only offence under Section 324 simplicitor against the appellant. He acquitted other four accused. The appellant challenges even the findings of his conviction under Section 324 and meager sentence awarded to him of execution of bond of probation. 3 3. After having gone through the record and after hearing the learned Advocate appearing for the appellant and the learned A.P.P., the following question arose for my consideration : Could the prosecution prove that the appellant caused the injuries to Bandu the prosecution witness no.2 at the relevant time as alleged by the prosecution? 4. The prosecution witness no.1 is the complainant. The prosecution witness no.2 is the injured victim. The prosecution witness no.3 is Medical Officer. The prosecution witness no.4 is an eye witness. Let me examine the evidence of the prosecution witness nos.1, 2 and 3 to ascertain as to whether the prosecution has proved its case beyond reasonable doubt. All the three witnesses clearly named the appellant as author of stab injuries sustained by the prosecution witness no.2. The prosecution witness no.4 came to the scene of occurrence rather belatedly, hearing alarms raised by the prosecution witness no.1. There was ample scope for cross examiner of the appellant to bring on record that the prosecution witness no.4 came to the scene of occurrence rather belatedly and by that time, the incident was already over and that the victim had already sustained the injuries. But unfortunately, the cross examination of the prosecution witness no. 4 is conducted in such a manner that the appellant almost admitted the prosecution witness no.4's presence at the spot and during the incident of assault. Let me discard his evidence. I take into account only the depositions of witness nos.1 and 2, to find out as to whether they could prove the case against the appellant. Both these witnesses concurrently stated that the appellant and other four persons accosted them at about 10 pm near the level 4 crossing. They were armed with iron rods and knife. They stated that the appellant had knife in his pocket and he took it out and inflicted blows on the person of prosecution witness no.2. The cross examiner for the appellant tried to suggest to this two witnesses that the prosecution witness no.2 was assaulted long before 10 pm. He suggested that the prosecution witness no.2 was assaulted at about 8 pm near the house of the complainant. The suggested story remained only suggestion and even by implication or probability, it was not proved. The cross examiner for the appellant then tried to cross examine these two witnesses on the point of timing to reach the Police Station and the hospital. The learned Advocate appearing for the appellant brought to my notice the evidence of prosecution witness no.3, who stated that at 10.30 pm, he had examined the prosecution witness no.2. The learned Advocate appearing for the appellant asserted that if the prosecution witness no.2 could reach hospital so quickly then there are two possibilities viz, (i) the incident did not take place as alleged at 10 p.m. probably it occurred earlier to it. (ii) the prosecution witness nos.1 and 2 did not go to Police Station after the incident as stated by them. 5. The question as to when the prosecution witnesses went to the Police Station is not quite material. It is proved fact that the witness no.2 was examined by the Medical Officer at 10.30 pm, which shows that without losing much time after the incident, the witness no.2 had taken care to reach the hospital. Reaching hospital was more important for him than going to the Police Station. He had suffered as many as six incised injuries. Out of which, one was on his abdomen. This indeed was alarming situation and the prosecution witness no.2 must have feared for his survival. So going to the hospital was more important to him. The 5 F.I.R. shows that the prosecution witness no.1/complainant had lodged this complaint at about 1 am during that night. The prosecution witness no.1, however, stated in his examination-in- chief that he had lodged his complaint at 8 pm. This could not be correct, but this lapse on the part of witness would not be fatal to the prosecution case. If the Court holds that the incident has taken place at about 10 pm, the complaint could not have been lodged at 8 p.m. This minor discrepancy in the evidence of prosecution witness no.1 is thus not useful for the defence of the appellant. 6. The prosecution witness no.3 categorically stated that he had noticed as many as six incised injuries on the person of the prosecution witness no.2. One of the injuries, he found, was on head. In cross examination, he admitted that the injury on the head could have been sustained by blow of iron rod. The prosecution does not want to prove that the head injury sustained by the prosecution witness no.2 was authored by the appellant. It was their case that the said injury was authored by some other accused, who is not before the Court now. The appellant is thus proved to be the author of all the remaining five injuries on the person of the prosecution witness no.2. I find no reason to disturb the findings of the learned Judge to convict the appellant under Section 324 of Indian Penal Code. I am not inclined to discuss the case from the prosecution's point of view because they have not filed any appeal against the impugned Judgment and Order though it was a fit case to file an appeal against the impugned Judgment. 7. Before I conclude this Judgment, I must also record my dissatisfaction about the manner in which the learned Judge utilized his powers to release the appellant on probation on his 6 executing bond of good conduct. Apparently, this was not the case to show such leniency. The reasons mentioned by the learned Judge for showing the leniency are not at all convincing. That apart, since the prosecution has not filed any appeal against the Judgment. I will not be able to disturb the quantum of sentence awarded to the appellant. Appeal shall, therefore, fail. The appeal stands dismissed. (A.V. NIRGUDE) JUDGE gas/cria342.06 ok