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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 285 OF 1999
1 Govind Rangrao Birajdar
Age 40 years, Occ. Agriculture
2 Shrimant s/o Rangnrao Birajdar,
Age 35 years,Occ. Agriculture
Both R/o Dongargaon, Tq. Nilanga
District Latur ...Appellants
Versus
The State of Maharashtra
(Copy to be served on Public
Prosecutor, High Court,
Bench at Aurangabad) ...Respondent
.....
Mr. V.R. Dhorde, advocate h/f Mr. R.N. Dhorde, advocate for the appellant
Mr. V.G. Shelke, A.P.P. for respondent
.....
CORAM: S. S. SHINDE, J.
DATE OF RESERVATION
OF JUDGMENT : 20 .01..2011
DATE OF PRONOUNCEMENT
OF JUDGMENT : 28 .01.2011
JUDGMENT:-
1 This appeal is filed challenging the judgment and order of
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conviction dated 5.7.1999, in Sessions Case No. 39 of 1998 passed by
the learned Additonal Sessions Judge, Nilanga thereby convicting the
appellants for the offences punishable under Section 324 r.w. 34 of
I.P.C. and sentencing them to suffer R.I. for one year each with fine of
Rs.1000/- each i/d to suffer R.I. for one months.
2 The prosecution case, in brief, is as under;-
The incident in question took place on 18.2.1997 at about 6.30
p.m. at village Dongargaon, Tq. Nilanga, District Latur i.e. at the village
of victim as well as accused. The appellant No.1 Govind assaulted
victim Maruti s/o Gopala by means of handle of pick axe, thereby
sustaining fracture to the bone of his left hand of upper arm and rest of
the accused persons delivered abuses to him and also subjected him
to beating by means of fists and kicks. The beating was intervened by
witnesses namely Prakash Patil, Shripati Shingnale and Govind
Salunke.
The victim was carried to police station Kasarshirshi and F.I.R.
was lodged by him at 9.10 p.m. in writing. Thereafter, Maruti was
immediately referred for medical examination by P.H.C. to Medical
Officer, Kasarshirshi, but thereafter, referred the injured to Civil
Hospital, Latur as there was fracture of bone.
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On the basis of F.I.R. crime was registered in police station,
Kasarshirshi, at serial No. 23 of 1997 for the offences punishable
under Sections 324, 323, 504 r.w. 34 of I.P.C. and on next day i.e. on
19.2.1997, the Investigating Officer i.e. P.H.C. Dnyanoba visited the
place of incident, drew panchnama of place of occurrence and also
seized handle of pick axe in presence of panchas, on production of the
same by the appellant No.2 Shrimant.
On 20.2.1997, injured Maruti died in Civil Hospital, Latur. On
the very day, panchnama of inquest and seizure of wearing apparels
of injured were drawn by P.H.C. Ranzunjare of police station Gandhi
Chowk Latur and referred the paper to police station Kasarshirshi. On
that basis P.S.I. Mundhe undertook the investigation of the crime on
21.2.1997 and added Section 302 of I.P.C. with the permission of the
Court. The accused persons were already arrested in due course of
the investigation.
The dead body of injured Maurti was referred for autopsy,
wherein probable cause of death of Maruti was opined by the Medical
Officer, after conducting post mortem examination, as pulmonary
embolism due to compound fracture shaft humorous. The
investigating Officer has recorded statements of witnesses in due
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course of investigation, inclusive of eye witnesses and a witness
before whom oral declaration regarding cause of death made by
injured Maruti and thus having found sufficient evidence, he charge
sheeted all the accused persons for an offence punishable under
Sections 302 r.w. 34 of I.P.C. in the Court of learned J.M.F.C. Nilanga.
The learned J.M.F.C. Nilanga, had committed the case in due course
to the Court of Sessions.
Charge for the offence punishable under Section 302 r.w.34 of
I.P.C. is framed and explained to the accused at Exh.16. They have
pleaded not guilty and claimed to be tried. Their defence is of total
denial. With a view to prove the guilt of the accused, the prosecution
examined as many as eight witnesses.
4 The learned Additional Sessions Judge, Nilanga after framing
necessary points and recording evidence and after hearing the parties
has acquitted all the accused for the offence punishable under Section
302 r.w. 34 of I.P.C. However, the learned Judge has convicted the
present appellants, who are original accused Nos. 1 and 2 for the
offences punishable under Section 324 r.w. 34 of I.P.C. and sentenced
them to suffer R.I. for one year each with fine of Rs.1000/- each i/d to
suffer R.I. for one months. Hence, the judgment of the learned
Sessions Judge is under challenge in this appeal.
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5 Learned counsel appearing for the appellants submitted that
there are omissions and contradictions in the evidence of the
witnesses, examined on behalf of the prosecution. In so far as the
evidence of P.W.3 and P.W.6, there is contradictions in their evidence
as to how the incident has happened. P.W.3 says that Maruti Birajdar
came at the spot, appellant Shrimant gave blow by wooden handle of
pick axe to Maruti Birajdar then appellant Govind arrived, took handle
from Shrimant and gave blow to Maruti Birajdar and then witnesses
rescued. P.W.6 says first Shrimant came, he took the handle and hit
Maruti thereafter persons who were present have intervened and
rescued Maruti. P.W.6 says that thereafter they were separated and
then Govind came and hit deceased by taking handle of pick axe from
Shrimant. This is basic disparity of the happening of the incident and in
view of the omission and contradiction the witnesses can not be
believed.
Learned counsel for the appellants submitted that the
prosecution in view of the oral evidence as well as the Medical
evidence has failed to prove that the fracture injury has been caused
by the appellants in as much as there is no specific statement that
blow was given on a particular part of body, particular side but on the
contrary, the medical evidence clearly suggests that the fracture is
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possible due to fall on the ground considering the age of Maruti as 65
years. The injuries are on one side of the body i.e. left side, therefore,
it supports the case that the injury must have been caused due to fall.
In cross examination of P.W.7 Dr. Deshmukh has stated that the
compound fracture like in this case is possible in case of fall on rough
and hard surface.
Learned counsel for the appellants further submitted that in para
21 of the judgment, the learned Additional Sessions Judge has
observed that “the letter inference regarding causing of fracture
because of fall on ground, being favourable to the accused, is required
to be accepted. I find substantial force in the submission coming forth
from the defence counsel. In this case, no that much strong evidence
is coming from the prosecution to firmly conclude that the fracture of
humorous bone was necessarily caused by the alleged blows given by
the accused Nos. 1 and 2. Eventually, it is difficult to conclude that the
accused Nos. 1 and 2 are author of fracture caused to victim Maruti.”
He further submitted that the incident in question has taken
place at 6.30 p.m. in the evening in open space in village and there
were other witnesses, who were present and separated, however, only
interested witnesses have been examined and independent witnesses
deliberately have not examined. P.W.6 is the close relative of Maruti
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namely cousin son-in-law and P.W.3 is the servant of Maruti.
Therefore, the prosecution has failed to examine independent
witnesses. He therefore, submitted that the prosecution has failed to
prove the case even prima facie and therefore, the appellants have
erroneously held guilty for the said offences.
Learned counsel for the appellants further submitted that
assuming and without prejudice to the above, the alleged incident has
taken place at 6.30 p.m. in the evening at the spur of moment and the
accused were there empty handed. The appellants were sitting with
empty handed. It is admitted position that the said pick axe handle
belongs to some one else i.e. P.W.3 servant of Maruti, who was
present on the spot which is very usual for the villagers to have handle
of pick axe. Therefore, there is nothing to suggest that the appellants
had come there with handle to commit any offence but on the contrary
the incident took place at the spur of moment.
Learned counsel for the appellants submitted that the incident
has taken place in the year 1997. There were no previous criminal
antecedents before alleged incident took place between the appellants
and the victim. Thereafter, the appellants and others are staying in the
village peacefully. The appellants are the agriculturists and there is no
untoward incident which has taken place and it is statement of the
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P.W.2 brother of Maruti that their relations were cordial before the
alleged incident. Therefore, lenient view should be taken. He further
submitted that now the appellants are married and they are having
their wives and children and they have to maintain their family. They
are agriculturists and therefore, the benefit of Probation of Offenders
Act may be given to them in view of the provisions of Section 360 of
the Criminal Procedure Code.
Learned counsel for the appellants in support of his aforesaid
submissions, has placed reliance on the following judgments of the
Hon’ble Supreme Court as well as this Court.
i) Hari Singh Vs. Sukhbir Singh and Ors. Reported in (1988)
4 SCC 551
ii) State of Maharashtra Vs. Jagmohan Singh Kuldip Singh
Anand and others, reported in AIR 2004 SC 4412.
iii) Khushi Balaji Janjalkar vs. State of Maharashtra 2010 (1)
Bom. C.R. 494
6 On the other hand, learned A.P.P. invited my attention to the
evidence of prosecution witnesses and submitted that their evidence
corroborates each other. He further submitted that the prosecution
witnesses have witnessed the said incident. There are also other
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witnesses who have supported the prosecution case. There is other
evidence including medical evidence which fully establishes the case
of the prosecution. Therefore, he submitted that the no interference is
warranted in this appeal and the same deserves to be dismissed.
6 I have given due consideration to the submissions advanced on
behalf of the appellants and the respondent-State. I have perused the
record made available. Upon perusal of evidence of P.W.4 Dnyanoba
Shingire, PHC Buckle No. 826 (Exh.33) who was on duty in the
concerned police station at Kasarshirshi, has stated that the F.I.R. was
registered by him. He has stated in his evidence that he received Exh.
34 F.I.R. which bears thumb impression of injured Maruti. Thereafter
he registered the crime at Serial No. 23/97 and referred the injured for
medical examination.
7 The prosecution examined P.W.3 Deelip Shivaji Bhale. His
evidence is at Exh.32. In his examination in chief, he has stated that
on 18.2.1997 he had been for labour work on wages for construction of
work of Chakur Road. He was accompanied by Bhanudas. They
returned back from the said labour work at about 6.00 p.m. and they
were sitting in Samaj Mandir of Dongargaon. One Shrimant was also
sitting with them. At that time Maruti Biradar came there. Shrimant
inflicted blows over hand of Maruti by means of handle of pick-axe.
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The said handle was in tools of labour work. While assaulting Shrimant
had said that his father had been assaulted on the ground of grazing of
chick peace pods (Toor). By that time, neighbourers assembled there.
Thereafter, Govind the brother of Shrimant came there. He took out
handle of pick-axe from the Shrimant and started to beat Maruti.
Thereafter, all assembled persons intervened the assault, and rescued
him. Thereafter Prakash Patil lifted Maruti and caused him to sit
beneath neem tree on plat-form. Maruti was having bleeding injury
over his hand. Thereafter, relatives of Maruti came there and took him
to hospital (Emphasis supplied).
In his cross examination, he has stated that the pick-axe
referred by him earlier was not belonging to Shrimant, but it was
belonging to them. Relying on his cross examination counsel for the
appellant submitted that since the appellant-accused was not carrying
out any weapon, therefore, there was no question of assault by them
on Maruti. He has stated in his cross examination that he cannot
explain the location of the place, where the incident took place, to the
police. However, in his cross examination, he has stated that it is false
that he did not know the location of blow inflicted by Shrimant to
Maruti. He has denied other suggestions given by prosecution.
8 P.W.6 is Shripati Mohite, whose evidence is at Exh.36. In his
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evidence he has stated that on 19.2.1997 he was at his residence. He
was sitting on the plat form of shop of Ratan Gore. Nagnath, Devidas,
were also with him. At that time, a quarrel was started between
Shrimant and Maruti in front of Samaj Mandir. Shrimant was beating to
Maruti by means of handle of pick-axe. They all intervened and
rescued Maruti. Later on Govind also beat Maruti. Therefore, Maruti
fell down. He also beat by means of handle of pick-axe. Govind had
rushed there during the course of beating by Shrimant to Maruti.
In his cross examination, he has admitted that Sopan is cousin
of deceased Maruti and Sopan is his father-in-law.
Counsel for the appellants submitted that there is material
variance in the evidence of this witness. He further submitted that
P.W.6 is interested witness and no reliance can be placed on his
evidence.
9 The evidence of Medical Officer Ms. Varsha Deshmukh is at
Exh.39. In her evidence she has stated that as many as following six
external injuries were found on the person of deceased Maruti. The
said injuries are reproduced herein below:-
i) Compound fracture humorous left wound over arm 3x2x2
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12cm anteriorly
ii) Abression over wrist right 22 cm dorsally.
Iii) Abression over elbow left post 2x2x2 cm
iv) Abression on knee bilat about 2x2 cm
v) Abression over back near hipbone (waist) left laterally 2x2
cm
vi) 4 Abressions on back left above 2x2 cm.
Upon perusal of all these injuries, Doctor opined that the
probable cause of death was pulmonary embolism left due to
compound fracture shaft humorous left.
Relying on the cross examination of the witness and the opinion
given by this witness that the death of Maruti is caused due to
compound fracture shaft humorous left and therefore the Medical
evidence is not supporting the prosecution story. Counsel further
submitted that Doctor has opined that the injuries which are mentioned
in the evidence by her, are possible in case of forgible fall on rough
and hard surface. The fractures are not generally dangerous, in
absence of any other complication.
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Relying on cross examination of this witness and the opinion
expressed by her, counsel for the appellants submitted that said
injuries are possible as stated by the medical Officer in case of forgible
fall on rough and hard surface. Therefore, counsel would submit that
the evidence of this witness, eye witnesses and medical evidence is
not relevant.
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In my opinion, though, to some extent there is variance in the
evidence of P.W.3 and P.W.6, however, they have stated about the
incident in question i.e. assault by accused appellants on Maruti.
Therefore, there is direct evidence in the nature of eye witnesses.
Medical evidence also corroborates with the evidence of eye
witnesses. Injury No.1 i.e. compound fracture humorous left wound
over arm 3x2x2 cm anteriorly is certainly possible by assault as it is
happened in the instant case. Therefore, if there would not have been
fracture then the aggravating factors leading to formation of emboli
would not have been there. Therefore, in my opinion, taking into
consideration the evidence of P.W.3, P.W.6 and medical evidence, itis
crystal clear that the appellants have assaulted Maruti. It cannot be
forgotten that ultimately Maruti has lost his life. It has also come in the
evidence of other witnesses about the presence of accused at the
spot. The prosecution has convincingly established its case through
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investigating Officer P.W.8 Walchand Pandharinath Mundhe.
Therefore, in my opinion, the appellants accused did commit the
offence. Therefore, in my opinion, taking into consideration the
evidence of eye witnesses, medical evidence and other evidence
brought on record by the prosecution, impugned judgment and order
required to be confirmed. However, I find some force in the arguments
of the counsel for the appellants that assault by pick-axe was not from
sharp side of the pick-axe but admittedly the assault was done by the
side of wooden log of pick-axe.
11 In the facts and circumstances of this case and taking into
consideration the submission of the counsel for the appellants that the
incident in question has taken place in the year 1997, there is no
previous criminal antecedents prior to the alleged incident, the
appellants and others are residing in the village peacefully. The
appellants are agriculturists and there is no untoward incident taken
place after they are released on bail. It is the prosecution case that
when the accused had arrived at the scene of offence, they were not
carrying any weapon. This position is also stated by the prosecution
witnesses. It is an admitted position that pick-axe handle belongs to
some one else i.e. the servant of P.W.3, who was present at the spot.
In the above background, I feel it appropriate to reduce the sentence
to the period as already undergone.
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10 In the result, the sentence awarded by the learned Additional
Sessions Judge, Nilanga dated 5.7.1999 in Sessions Case No. 39 of
1998 is reduced to the period already undergone. However, so far as
the payment of fine amount is concerned, the order of the Additional
Sessions Judge, Nilanga is maintained. Having been observed that
the sentence ordered by the Additional Sessions Judge, Nilanga is
reduced to the period already undergone, the appellants should not
be sent to jail.
11 The appeal is partly allowed and disposed of. The bail bonds
stand cancelled.
*****
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