1 CR.APPEAL NO.312 OF 1998 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.312 OF 1998 Date of decision:11/2/2011 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/11-2-11-312-98cr.a 2 CR.APPEAL NO.312 OF 1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.312 OF 1998 1. Sanjay Pandhari Dhangar, Age 26 years, 2. Raja Pandhari Dhangar, Age 20 years, Both residents of YAWAL, Taluka YAWAL, Dist. Jalgaon. ...APPELLANTS (ORIGINAL ACCUSED) VERSUS The State of Maharashtra. ...RESPONDENTS ... Mr. G.V.Wani, Adv., for the appellants. Mr. V.H.Dighe, APP for State. ... ... CORAM: K.U.CHANDIWAL, J. DATE :11/2/2011 *** ORAL JUDGMENT: 1. Heard extensively. Appeal was admitted on 9.10.1998. The appellants impugn the judgment of conviction for an offense under 3 CR.APPEAL NO.312 OF 1998 Section 323 read with Section 34 of IPC recorded by the learned Sessions Judge, Jalgaon, in Sessions Case No.323/1994, thereby directing the accused/appellants to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/- with default clause. 2. The accused/appellants were in jail for a period from 13.4.1994 to 29.8.1994, of which set off in terms of Section 428 of Cr.P.C. was recorded by the learned Additional Sessions Judge. 3. With the assistance of both the learned Counsel, I have analyzed evidence of witness no. 1 Bhika (complainant), evidence of witness No.6 Mangalabai, evidence of witness no.8 Venubai, mother of the complainant. All the three witnesses, in unequivocal terms, illustrated role of the accused Sanjay and also of Raja in inflicting stick blow to Ganpat and Ganpat sustaining bleeding injuries, becoming unconscious. Ganpat, apparently, was shifted to hospitals, however, he breathed his last on 19.4.1995. 4. On analysis of evidence of Bhika, Mangalabai and Venubai, it is explicit, it is not shattered all throughout in the cross examination. A suggestion was given that the 4 CR.APPEAL NO.312 OF 1998 injuries suffered by Ganpat were due to upturning of the bullock-cart. It is a matter of record, the parties being inter se close relations, had controversies on account of immoveable property and its partition. Previously, issue of Pandhari of appellant urinating in-front of the house of the complainant has ignited the situation in which due to enmity or otherwise Ganpat lost his precious life subsequently. 5. I quite see there was in-depth cross examination to these three witnesses, to impeach their credibility and to disbelieve their evidence. I am not referring to other witnesses as their evidence mostly revolves to the events of panchnama or inquest and few of the eye witnesses like the neighbours have turned hostile to the prosecution. The events - from the narration of Bhika, Mangalabai, Venubai - illustrate that Bhika went to the house of the accused to challenge, why Pandhari behaved indecently and, at that time accused/appellant Sanjay and Raja were armed with sticks and Sanjay hit the stick at Bhika on the head while Raja gave blow on his back. During the melee, Ganpat had intervened and had to face blow from Sanjay with stick on his head and he became unconscious due to the bleeding injuries. The incriminating articles were taken charge. 5 CR.APPEAL NO.312 OF 1998 6. Even if both the accused/appellants were holding independent sticks, the three witnesses have recorded that a single blow of stick was given by the accused Sanjay to Ganpat and it is, therefore, explicit that assault could have been only from Sanjay alone to Ganpat, though Raja was present at the material time. Dr.Jagannath Shirude examined Venubai and Bhika and he found that Bhika was suffering contused lacerated wound on parietal region and contusion of size 3" x 1" on left side of scapular region which was grievous in its nature. The witness has indicated and implicated one blow given by accused Sanjay on head and other blow was given by accused Raja on the back. This is so indicated in Exh.39 of the medical certificate which also corroborates to the fact of assault by a hard and blunt object. 7. Taking survey of evidence of the three witnesses, I do not see that there is concoction of the fact or multiplying the events, making it in a magnified manner. The evidence inspires confidence, is not shattered. Consequently, I do not find any error on appreciation of evidence by the learned Additional Sessions Judge. 8. Now, turning to the quantum of sentence, Section 323 of IPC conceive as under: 6 CR.APPEAL NO.312 OF 1998 323. Punishment for voluntarily causing hurt.-- " Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both." 9. As stated earlier, the accused/appellants have been in custody for around 4 months and 15 days. They have learnt a lesson in their life. The parties, according to Mr.Wani, have patched up their relations and are leading their life happily and even are well settled in life, but at different places. Taking these aspects into consideration, the appeal is partly allowed. Conviction in terms of Section 323 read with Section 34 of IPC recorded against the appellants Sanjay and Raja is maintained, however, sentence is reduced from one year to the period already undergone i.e. from 13.4.1994 to 29.8.1994. No change in the fine amount. Appeal disposed of accordingly. (K.U.CHANDIWAL) JUDGE ... AGP/312-98cr.a