- 1 -
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.395 OF 1994
The State of Maharashtra. .. APPELLANT
VERSUS
1) Mallikarjun s/o Govindrao Vanne
Age: 35 Yrs., occu: Agril.
2) Laxman s/o Lalba Kamble,
Age: 40 Yrs., occu: Agril.
3) Shivraj s/o Sheshrao Panchlinge,
Age: 21 Yrs., occu: Agril.
. All r/o Shivni, Tq. Degloor,
District Nanded. .. RESPONDENTS
ig (Orig. Accused nos.2,
5 and 10 respectively)
__________
Shri J.S.Gavhane, A.P.P. for Appellant/State;
Shri P.V.Mandlik, Sr. Counsel and Shri A.S.Gandhi,
Advocate for Respondents.
-----------
WITH
CRIMINAL REVISION APPLICATION NO. 332 OF 2006
1) Mallikarjun s/o Govindrao Vanne
Age: 55 Yrs., occupation:Agril.
R/o Shivani, Tq. Degloor,
District Nanded.
2) Laxman s/o Lalba Kamble,
Age: 54 Yrs., occupation :Agril.
R/o Shivani, Tq. Degloor,
District Nanded.
3) Shivraj s/o Sheshrao Panchlinge
Age: 37 Yrs., occupation:Agril.
R/o Shivani, Tq. Degloor,
District Nanded. .. PETITIONERS
(Orig.Accused nos. 2, 5
and 10)
::: Downloaded on - 09/06/2013 13:55:49 :::
- 2 -
VERSUS
The State of Maharashtra
(Through the Public Prosecutor
High Court, Bench at Aurangabad)
(for the Police Station, Mirkhel,
Tq. Degloor, District Nanded.) .. RESPONDENT
___
Mr.P.V.Mandlik, Sr.Counsel h/f Mr. U.B.Bilolikar, Adv.
for petitioners;
Mr.J.S.Gavhane, A.P.P. for Respondent/State.
***
CORAM: K.U.CHANDIWAL,J.
Date : 30.09.2008.
ORAL JUDGMENT :
1) The
State, being aggrieved by the order of
inadequate sentence recorded by Judicial Magistrate First
Class, Degloor, for the offence under Section 326 read
with 34 of the Indian Penal Code, has come in the appeal.
2) The accused/Revision Petitioners by filing a
Revision have challenged the judgment and order dated
27.9.2006 in Criminal Appeal No. 30 of 1994 passed by
learned Additional Sessions Judge, Biloli, who confirmed
the judgment and order of J.M.F.C. in Regular Trial
No.177/1992. By the judgment of the J.M.F.C., the
accused/original accused no.2 – Mallikarjun; accused no.5
– Laxman and accused no.10 – Shivraj, were convicted for
the offence punishable under Section 326 read with 34 of
::: Downloaded on – 09/06/2013 13:55:49 :::
– 3 –
IPC and were directed to suffer R.I. for one year each
and to pay fine of Rs. 1000/- each, in default, to
further undergo R.I. for one year. By the said judgment,
the learned J.M.F.C. has acquitted the other accused. It
is the matter of record that said acquittal of other
accused was also subjected to Criminal Appeal No.
396/1994, as raised by the State and by judgment dated
27.10.2005, this Court rejected the Criminal Appeal No.
396/1994.
3) On hearing both the sides, though learned
Sr.Counsel
for the accused elaborately read the evidence
of eye-witnesses and the injured, at one stage, he was
reminded that in a revision, the scope for appreciation is
very limited and there are concurrent findings of two
courts below against the accused, he should restrict his
submissions to the law point only. The position of law is
clear. The court while sitting in revisional jurisdiction
under Section 397 of Cr.P.C. should not reappreciate the
evidence and the findings of fact recorded by the two
courts below. However, these finding can only be
interfered, if such findings are apparently perverse or
based on no evidence or suffer from any other legal injury
and error of law. With this aspect keeping in mind, the
submissions of both the sides are considered.
::: Downloaded on – 09/06/2013 13:55:49 :::
– 4 –
4) The learned A.P.P., since wanted enhancement of the
sentence recorded by the J.M.F.C., took me to the entire
evidence and claimed that, for the offence punishable
under Section 326 of IPC, there being a grievous hurt as
defined under the statute, which grievous hurt is
medically established by evidence of the medical officer
(P.W.3), the learned J.M.F.C. should have recorded the
sentence more than one year, considering the gravity of
the matter.
5) The learned Sr.Counsel for the accused criticized
the F.I.R.
of the complainant (P.W.1) claiming that it is
silent about the names of the accused and in the evidence
he says that Sangram came to the house, while in the
F.I.R. he states that while he was at home, employees
working in field came. The criticism to the evidence of
P.W.1 basically is not to be considered as P.W.1 is not an
eye-witness to the incident. Whatever report he has given
to the police is based on the communication received from
his employees, who informed that his brother Hanmant was
brutally assaulted and consequently, he rushed to police
to put the investigation in motion. In this scenario of
the matter, Exhibit-65 or evidence of P.W.1 will have to
be read. It cannot be said there are omissions and or
contradictions in his evidence.
::: Downloaded on – 09/06/2013 13:55:49 :::
– 5 –
6) On the incident, there are following witnesses :
P.W.4 – Hanmantrao Vithalrao Patil; P.W.5 – Sangram
Malhari Waghmare; P.W.8 – Sangram Hullaji Waghmare.
7) On assessing evidence of these witnesses, coupled
with complainant’s evidence, I find that barring few
contradictions about the distance to be 50 ft. or less or
about who rushed first, there is no variance in their
evidence to claim that they are brought up witnesses or
that they are interested to falsely implicate the accused.
It is pertinent
ig to note that the learned Judge,
considering the evidence of the witnesses, showing
specific role to accused no.2 - Mallikarjun with an axe;
accused no. 5 - Laxman with Katti; and accused no.10 -
Shivraj with an axe, and brutally assaulting injured
P.W.4, has come to the conclusion about the guilt against
the accused.
8) P.W.4 - Hanmantrao, as could be seen from the
medical evidence of P.W.3 – Dr.Jananrdhan Iranna Bhume and
P.W.16 -Dr.N.Parvati, had suffered as many as 15 injuries.
Out of them, injury nos. 1 and 2 were grievous in nature,
as these injuries were fractures at lower part of left
finger bone (left elbow posterity) – 6 x 1 x 4 cms. with
sharp edge and bleeding profusely while injury no.2 was
::: Downloaded on – 09/06/2013 13:55:49 :::
– 6 –
compound fracture on right leg medially fracture of right
tibia and fibula bone – 4 x 1 x 6 cms. The wound was
fresh and having sharp edge and it was bleeding profusely.
The medical officer (P.W.3) noticed other incise wounds
referred in his evidence and medical certificate at
Exhibit-75, which are on other part of body of P.W.4 –
Hanumantrao. He has identified Hanmantrao, apart from
identifying and confirming the certificate issued at Exh.
75 in relation to injuries noticed by him on examination
of injured on 30.07.1992; The eye-witnesses other than
Hanmantrao have also identified the accused persons and
the respective
ig weapons including apparels which were on
the person of the accused. The claim that the
eye-witnesses were in another field is again difficult to
accept as it is brought in evidence that the eye-witnesses
were performing agricultural work and were barely at the
distance of 50 ft., but could not come forward. No sooner
the accused left the place, they came and looking to the
condition of P.W.4, they rushed to P.W.1. In the
agriculture field, where P.W.4 was watching agricultural
activities while labours were working at the material
time, it cannot be said that the prosecution should have
examined other independent witnesses since there were no
such independent witnesses. By the very nature of the
employees referred above being eye-witness, their evidence
cannot be discarded under the banner of they being
::: Downloaded on – 09/06/2013 13:55:49 :::
– 7 –
interested witnesses. The term “interested witness” has
several shades and angularities, coming forward to narrate
events is not to be looked with jaundiced eyes. There is
nothing to show, these witnesses were demonstrating mere
loyalty to P.w.4 than their presence. In the facts and
circumstances, where the labours were working and their
master was brutally attacked, they cannot be said to be
cooked and brought up witnesses to narrate the incident
against the accused.
9) It is brought in the evidence and confirmed by
P.W.4, coupled
with evidence of P.W.1, that he had no
animosity with the accused. It was only a dispute between
the accused – Mallikarjun and another, in which, as Police
Patil (P.W.4) became instrumental and at Police Station
has raised his voice, the accused got annoyed and in the
company they came together with deadly weapons and in the
manner as stated by P.W.4 and witnessed by other
eye-witnesses, have assaulted P.W.4 causing fifteen
injuries to him.
10) Section 320 of IPC deals with grievous hurt and
clause Seventhly indicates fracture or dislocation of a
bone or tooth. As stated earlier, injuries at Serial Nos.
1 and 2 suffered by P.W.4, recorded by P.W.3 will be
coming in terms of clause Seventhly of Section 320 of IPC
::: Downloaded on – 09/06/2013 13:55:49 :::
– 8 –
and naturally such injury was grievous in nature,
therefore, it will not be a hurt to get benefit for the
accused. The act of the accused, armed with deadly
weapons, was in all situations a voluntary act. They had
come prepared and consequently even pelted stone on the
PW-4 injured causing abrasion to him at his back side. As
stated earlier, user of axe or Katti will be coming within
the terms of “deadly weapons”, which is likely to cause
death, and naturally has its impact on the witness P.W.4,
he was in the hospital for more than three months and
could not follow his ordinary pursuits.
11) Learned defence counsel in this context invited my
attention to the judgment reported in 1969 Cri.L.J. 1498
in the matter of State of Gujarat Vs. Samaj. In that
case, the matter pertained to the hurt caused on the
person of the victim and he was unable to follow his
ordinary pursuits during the space of 20 days and Hon’ble
Lordships observed that : ” Both the ingredients have got
to be established by the prosecution and it would not be
enough to say that he remained in the hospital for 20
days. The case before hand is within the bracket of
Section 320 clause Seventhly and will not be attracting
the impediments as envisaged in clause (8) of Section 320
of IPC.
::: Downloaded on – 09/06/2013 13:55:49 :::
– 9 –
12) Learned Sr.Counsel then invited my attention to the
judgment reported in 1997 Cri.L.J. 1788 in the matter of
Narayan Kanu Datavale and Ors. Vs. State of Maharashtra,
in which, this Court observed that while appreciating
evidence of injured, there is no immutable rule that such
evidence should be mechanically accepted.
13) On reading judgment of the two courts, I find that
both the Courts have dealt with the evidence of P.W.4 in
depth and they have not mechanically accepted the
evidence. The evidence of P.W.4 had the support of other
three eye-witnesses
ig coupled with evidence of medical
officer (P.W.3) and P.W.16. The learned Judge also
recorded the finding concerning recovery of axe at the
intance of the accused to be inspiring confidence and such
recovery having been proved was one of the corroborative
facts against the accused/appellant.
14) Since there are two concurrent findings of the
courts below against the accused and on revision or re-
appreciating the evidence, no infirmity could be seen at
the threshold in the matter, it cannot be said that the
order of the Judicial Magistrate First Class or the order
of the Additional Sessions Judge smacks with perversity or
requires interference. In the result, the criminal
revision preferred by the accused/appellant is rejected.
::: Downloaded on – 09/06/2013 13:55:49 :::
– 10 –
15) Now comes the appeal preferred by the State for
enhancement for the sentence recorded against accused nos.
2, 10 and 5. Evidence of P.W.1, as stated earlier, is
only to put the prosecution in motion and nothing more.
The other evidence of the injured and the eye-witnesses is
elaborately discussed hereinbefore. The finding of the
learned Judge, while awarding the sentence is recorded in
paragraphs 20 and 21 of the Judgment. The learned Judge
was satisfied that the prosecution has proved the case
beyond all reasonable doubt, the accused persons formed
unlawful
assembly and they were members of that assembly
and it has also proved that the prosecution of common
object of assembly was to assualt the injured. The
learned Judge also recorded, “it has also proved that the
accused persons formed unlawful assembly and in
prosecution of common object to the said assembly was to
assault Hanmantrao Patil and the accused nos. 2, 10 and 5
were armed with deadly weapons and they have voluntarily
caused grievous hurt in pursuance of the said common
object.” In paragraph 22, on the point of awarding the
sentence, the learned Judge has referred that when he
asked the accused persons, they claimed that they have not
committed any offence. The learned Judge observed, taking
into consideration the nature of offence and the age,
antecedent and character of accused persons, the
::: Downloaded on – 09/06/2013 13:55:49 :::
– 11 –
punishment to be awarded by him will be sufficient for
ends of justice and consequently, as stated earlier, he
awarded punishment to accused nos. 2 ; accused no. 5
and accused no. 10, for the offence punishable under
Section 326 read with 34 of the Indian Penal Code, for a
period of one year each and to pay fine of Rs. 1,000/-
each. The observation of the learned Judge, and even
confirmed by the learned Additional Sessions Judge, cannot
be said, in the set of situation, to be erroneous, as the
learned Judge has exercised his discretion in the light of
evidence, demeanour of the witnesses and fact situation at
the material time.
ig The other circumstance in the matter
also cannot be ignored. The judgment of the learned
Judge, convicting the accused is dated 22.09.1994. The
Criminal Appeal No. 30/1994 was decided on 27.09.2006 and
the Criminal Revision and the present Criminal appeal are
decided today. The time between all the events also needs
consideration. It is informed by both the sides that
there is no case pending against the accused, nor they are
involved in any criminal activities prior to the incident
or post incident.
16) The learned Sr.Counsel even urged that the accused
and the injured are not evolving in any scores against
each other and for all purposes, they have settled the
controversies whatever has happened has gone to past. He
::: Downloaded on – 09/06/2013 13:55:49 :::
– 12 –
alternatively urged that the punishment undergone during
the period, may be considered and considering the said
punishment, the accused/appellants/revision petitioners be
released forthwith. Since the State has challenged the
very punishment to be inadequate, it will be mockery of
justice to reduce the said conviction of one year to the
period undergone which will be amounting to rub salt on
the injuries suffered by P.W.4 for no fault of him since
he was a police patil and was ordinarily required to
discharge his duties as such. He had no motive or ill
will against the accused. Simply performing his part of
obligation
has indeed staked his life as he was required
to suffer fifteen incise wounds, as reflected hereinabove
and hospitalised for 3 months.
17) Considering all the facts, I do not see that there
is any other reason to enhance the sentence awarded to the
accused. Hence, order :
O R D E R
(i) Criminal Revision No. 332 of 2006 moved by the
accused/revision petitioners is rejected;
(ii) Criminal Appeal moved by the State for enhancement
of sentence is rejected;
::: Downloaded on – 09/06/2013 13:55:49 :::
– 13 –
(iii) The accused, who are on bail, will surrender before
Judicial Magistrate First Class, Degloor on 3rd of
November, 2008.
(K.U.CHANDIWAL,J.)
bdv/uniplex/cral395.94
Authentic copy
(BD VADNERE,PA)
::: Downloaded on – 09/06/2013 13:55:49 :::