Cri. Appeal No. 335/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 335 OF 1998 1. Bhausaheb s/o. Shivaji Katkar, Age 21 yrs., 2. Babasaheb s/o. Shivaji Katkar, Age 25 yrs., 3. Sakharam s/o. Rama Kandalkar, Age 55 yrs., 4. Bhima s/o. Sakharam Kandalkar, Age 24 yrs., 5. Nanasaheb s/o. Sakharam Kandalkar, Age 21 yrs., 6. Shivaji s/o. Mahadu Katkar, Age 59 yrs., All R/o. Ghari, Tq. Kopargaon, ....Appellants. Dist. Ahmednagar. ( Ori. Accused.) Versus 1. The State of Maharashtra 2. Bhimrao s/o. Lahanu Ghode, Age 35 yrs., Occu. Labour, 3. Vitthal s/o. Mahadu Katkar, Age 45 yrs., Occu. Agri., 4. Parvati Bhikaji Katkar, Age 40 yrs., Occu. Agri., 5. Bhika s/o. Mahadu Katkar, Age 65 yrs., Occu. Agri., Cri. Appeal No. 335/1998 2 6. Sumanbai Bhimraj Ghode, Age 35 yrs., Occu. Agril., All R/o. Ghari, Tq. Kopargaon, ....Respondents. Dist. Ahmednagar. (R. 2 to 6 Ori. Injured) Mr. S. P. Chapalgaonkar, Advocate for appellants. Mr. B.J. Sonawane, APP for State/respondent. CORAM : T. V. NALAWADE, J. RESERVED ON : 22nd July 2011. PRONOUNCED ON : 27th July, 2011. JUDGMENT : 1. This appeal is filed against judgment and order of Sessions Case No. 220/1993 which was pending in the Court of Additional Sessions Judge, Kopargaon, District Ahmednagar. The appellants are convicted and sentenced for offences punishable under sections 325, 323, 506 r/w. 149 of the Indian Penal Code (IPC) and each appellant is also convicted for offence under section 147 of IPC. The appellants were tried for offence punishable under section 307 read with 149 of IPC also, but they are acquitted of the offence. 2. In short, the facts leading to the institution of the appeal can be stated as follows :- Cri. Appeal No. 335/1998 3 The first informant Bhima Ghode and the other prosecution witnesses are from village Ghari, Tahsil Kopargaon. Accused persons are also from this village. There was dispute between the first informant and maternal uncle Laxman Katkar on one side and appellant Shivaji Katkar on other, over agricultural land. On 5.3.1993 the first incident took place in which Laxman was assaulted by some of the accused from the present case and Laxman was injured. Laxman was admitted in hospital and so first informant brought the members of the family of Laxman like daughter of Laxman, Pintabai, son of Laxman, Annasaheb to his house to give them shelter. Shivaji is the real brother of Laxman. 3. On 6.3.1993, on the day of incident, accused Shivaji and other accused came to the house of Bhimu with sticks at about 7.30 am. They picked up quarrel with Bhimu. They were angry as Bhimu had given shelter to the members of family of Laxman. When the accused started assaulting Annasaheb and Pintabai, Bhimu and his family members intervened. Then accused gave beating to Bhimu and members of family of Bhimu. One blow of stick hit Bhimu on head and he sustained bleeding injury. Bhika, Vithal and wife of Vithal rushed to the spot to intervene in the incident. These Cri. Appeal No. 335/1998 4 persons were also assaulted by using sticks by the accused. In the incident Bhimu, his mother, Vithal, Bhika and others sustained injuries. Kausabai, mother of Bhimu, sustained grievous injury. This incident was witnessed by other villagers also. 4. Bhimu gave report against the appellants and the crime at Cr. No. 39/1993 came to be registered in Kopargaon Police Station for offences punishable under sections 307, 149 etc. of IPC. The injured persons were first referred to Municipal Hospital and from there they shifted to a trust hospital. 5. Gautam Pawar, the PSI, who was attached to Kopargaon Police Station, made the investigation of the case. He recorded the statements of injured witnesses and other eye witnesses and he seized blood stained clothes of injured. Accused Nana also gave report in respect of the same incident and the crime at Cr. No. 40/1993 came to be registered against Bhimu and some other eye witnesses for offences punishable under sections 324, 149 etc. of IPC. Both the cases were tried in Sessions Court as counter cases. The accused from Cr. No. 40/1993 are acquitted. 6. The advocate for the appellants submitted that reasoning Cri. Appeal No. 335/1998 5 given by the Trial Court that more injuries were sustained by complainant's side and so present appellants were aggressors, is not correct. It was submitted that the record of medical examination of injured witnesses from Municipal Hospital was not brought before the Trial Court and this circumstance has caused prejudice to the defence. The advocate also submitted that the fine imposed is on higher side. The APP on the other side supported the decision of the Trial Court. 7. The prosecution has examined most of the injured witnesses and some circumstantial evidence is also given. The defence has admitted the documents like map of scene of offence, panchanamas of arrest of accused persons and panchanamas of seizure of clothes of injured witnesses. The appellants have not disputed their presence on the spot at the relevant time and they have taken the defence that they were injured in the incident. The map of scene of offence shows that the incident took place near the houses of Bhimu and his maternal uncle Laxman. The spot is situated at the distance of more than 30 fts. from the road and the map does not show that the houses of the appellants are on the same side of the road or they are in the vicinity of the spot of offence. The panchanamas of seizure of clothes of injured Cri. Appeal No. 335/1998 6 witnesses produced at Exhs. 18 and 20 show that there were blood stains on the clothes of injured witnesses Bhika (PW 7), Vithal (PW 6), Bhimu (PW 1), Parvatabai (PW 2) and also Kausabai, mother of Bhimu. These admitted circumstances need to be kept in mind while appreciating the other evidence. 8. Bhimu (PW 1) has given evidence that on 6.3.1993 all the accused came towards his house and they picked up quarrel with him, by saying that he had given shelter to the members of the family of Laxman. Bhimu has deposed that on the previous day appellants' side had quarreled with Laxman and due to injuries sustained by Laxman, he was admitted in hospital. Bhimu has given evidence that all the accused said to him that he was helping the family of Laxman and so he needs to be beaten. Bhimu has given evidence that in the incident, he, his mother Kausabai, his wife Suman were assaulted by the appellants with sticks. He has deposed that a stick of one of the accused hit his head and he sustained bleeding injury. He has deposed that his mother Kausabai sustained fracture injury to her arm and his wife Suman was also injured. He has given evidence that his other maternal uncles like Bhikaji, Vithal and Parubai, wife of Bhikaji intervened in the incident and they were also assaulted by the accused. Bhimu Cri. Appeal No. 335/1998 7 has given evidence that report at Exh. 14 was given by him. Bhimu has given evidence that all the injured were first taken to Municipal Hospital and from there, they shifted to Pravara Hospital, trust of hospital, for treatment. 9. The FIR at Exh. 14 is consistent with the oral evidence of Bhimu on material points. In FIR, he has not made specific allegations against any accused that particular accused gave him blow and particular accused gave blows to other injured witnesses. Evidence is given that all the accused came together and they assaulted Bhimu and other injured persons. The accused were more than five in number. 10. It is suggested to Bhimu in the cross examination that accused Nos. 5 and 6 were proceeding to Milk Collection Center at the relevant time and they were assaulted by Bhimu and others after intercepting them. The map of scene of offence, which is already mentioned, is not consistent with this defence taken by the appellants. The incident took place at the distance of more than 30 fts. away from the road. The tenor of the cross examination of the prosecution witnesses shows that the presence of all the prosecution witnesses on the spot at the relevant time is not Cri. Appeal No. 335/1998 8 disputed by the defence. In the cross examination, it is suggested that accused also gave report to police and to counter blast that case, Bhimu gave report against the appellants. This suggestion is denied. On the basis of report of Bhimu, the Crime at Cr. No. 39/1993 was registered and on the basis of report of appellants' side, the crime at Cr. No. 40/1993 was registered. This circumstance shows that there is no force in the defence taken by the appellants that only to counter blast the case registered against Bhimu, the report was given by Bhimu. 11. Smt. Parvatabai (PW 2) is close relative of both the sides. She has given evidence that when she went with her husband Bhikaji to intervene in the incident, they were assaulted by accused. She has made specific allegations against accused Nos. 1 and 5 that they assaulted her with stick on back and head. Smt. Sumanbai (PW 3), wife of Bhimu, has given similar evidence and she has made specific allegations against accused No. 5 that he gave beating to her husband with stick. She has given evidence that accused No. 2 gave her beating on her arms and due to that her bangles were broken. There is no medical record in support of the version of Suman (PW 3), but her presence on the spot is not disputed. Vithal (PW 6) has given similar evidence on material points. He has taken Cri. Appeal No. 335/1998 9 names of accused Nos. 4 and 5 that they assaulted him. He has further stated in evidence that he was indoor patient for about 12 days. A suggestion is given to Vithal in the cross examination for defence that generally Laxman and accused Shivaji act together when they are against Vithal. Vithal is real brother of both Laxman and Shivaji. Bhika (PW 7) is the other brother of Shivaji and he has given similar evidence. Annasaheb ( PW 9), son of Laxman, has given similar evidence. He has further deposed that as there was dispute, Bhimu had given shelter to the family members of Laxman. 12. Dr. Shingal (PW 10) was attached to Pravara Trust Hospital and he has given evidence that on 6.3.1993, on the day of incident, he examined the prosecution witnesses like Vithal (PW 6), Bhika (PW 7), Kausabai, mother of complainant etc. Evidence of doctor shows that injured persons were examined at 4.05 pm. Three contusions were found on the person of Vithal on his shoulder, left hand and over lower back. Injury certificate in respect of Vithal at Exh. 36 is consistent with the oral evidence of doctor. Two contusions were found on right shoulder of Bhika and he had also sustained injury over left little finger. He has one stitch wound over scalp. Exh. 37, injury certificate in respect of Bhika is consistent Cri. Appeal No. 335/1998 10 with the oral evidence of doctor. Kausabai had contusion over head and she had sutured wound over head. She had fracture of both bones of left forearm. Injury certificate at Exh. 38 is consistent with the oral evidence of doctor. Though Kausabai is not examined, considering the time mentioned in the injury certificates and the direct evidence, this evidence needs to be used against the accused. Doctor has given evidence that Parvatabai had one sutured wound and one contusion. Exh. 39 is consistent with this evidence. Parvatabai was treated on OPD basis. 13. Dr. Shingal has given evidence that the aforesaid patients were referred by Kopergaon Hospital. This doctor had brought original record of treatment to the Trial Court. Doctor has given evidence that there was letter of reference of Municipal Hospital Kopargaon, but the said letter is not produced. The MLCs prepared by the Doctor show that history of assault was given and the treatment was also received in the Municipal Hospital. Intimation to police was also given. In view of these circumstances, only because letter of reference of Municipal Hospital, Kopargaon is not brought on the record, the evidence of this doctor cannot be discarded. Thus, there is medical evidence to support the case of the prosecution that Kausabai sustained fracture injury and other Cri. Appeal No. 335/1998 11 three witnesses sustained simple injuries in the incident. 14. Investigating Officer Gautam Pawar (PW 11) has given evidence that the articles taken over by him during investigation like clothes of witnesses were sent to CA office with covering letter. Office copy of covering letter is at Exh. 41 and it is dated 17.3.1993. The CA report at Exh. 32 in respect of these articles shows that human blood was detected on the clothes of the prosecution witnesses. This evidence is consistent with the oral evidence and it gave necessary corroboration. Panch witness, examined on the point of spot panchanama, turned hostile, but that cannot affect the case of the prosecution, as there is map of scene of offence and there is direct evidence and there is also the circumstance that the presence of the witnesses on the spot is not disputed. 15. The panchanamas of arrest of accused Nanasaheb and Shivaji produced at Exhs. 23 and 24 show that they had sustained injuries. It is already mentioned that the defence has not disputed that some accused were injured in the incident. In the statements given under section 313 of Criminal Procedure Code also, the appellants have admitted their presence. It is already observed that incident took place near the house of Bhimu and Laxman and the Cri. Appeal No. 335/1998 12 spot is situated away from the main road. The defence taken by the accused that some of the accused were intercepted on the road is not probable in nature. Thus, the only inference from the aforesaid evidence is that all the accused went together to the spot of offence with common object and they assaulted complainant and other injured witnesses. Fracture injury was caused to the mother of the complainant and simple injuries were caused to other witnesses. In view of these circumstances, it cannot be said that the Trial Court has committed error in convicting and sentencing the appellants for offences punishable under sections 325, 323, 506 read with 149 of IPC and also for offence under section 147 of IPC. Already lenient view is taken by the Trial Court. The Trial Court must have taken into consideration the circumstance that the appellants are close relatives of injured witnesses. The fine amount is disbursed amongst the complainant and other injured witnesses. The circumstances that the injured received treatment at two places and the hospital from Pravara is trust hospital needs to be kept in mind. In view of these circumstances, it cannot be said that the fine imposed is on higher side. Sufficient opportunity was given to the appellants to argue on the point of sentence. In view of aforesaid circumstances, this Court holds that interference in the judgment and order of the Trial Court is not possible. Cri. Appeal No. 335/1998 13 16. In the result, the appeal stands dismissed. [ T. V. NALAWADE, J.] ssc/cria335/98