Judgment 1 apeal137.99.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 137 OF 1999
Gajanan S/o. Baban Zalte,
Aged about 25 years, R/o. Patonda,
P. S. Nandura, Tq. Nandura,
District : Buldhana.
ig .... PETITIONER.
// VERSUS //
The State of Maharashtra,
through P .S.O. Nandura.
.... RESPONDENT
.
______________________________________________________________
Shri R.M.Daga, Advocate for Petitioner.
Ms Ritu Kalia, Advocate for Respondent.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : FEBRUARY 24, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. The appellant has filed this appeal challenging the judgment passed by the learned Additional Sessions Judge convicting him for the offence punishable under Section 304-II of the Indian Penal ::: Uploaded on - 10/03/2016 ::: Downloaded on - 31/07/2016 06:30:38 ::: Judgment 2 apeal137.99.odt Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.One Thousand and in default of payment of fine to suffer simple imprisonment for six months. The appellant is convicted for the offence punishable under Section 324 r/w 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for the period of two years.
3. The case of the prosecution is :
On 14th December, 1996 at about 8.00 a.m. deceased Pundlik and his wife Manjulabai had come to village Patonda for work, on entering the village Manjulabai went to the house of her father-in-
law Vitthal Borse, and Pundlik Borse went to a grocery shop in different direction and while Pundlik was on his way to the grocery shop and was passing nearby the temple, Tukaram Pachpor who resided opposite the temple asked him whether he would do the work of harvesting sunflower crop on hire basis. It is alleged that at that time the appellant/accused reached there and questioned about the ability of Pundlik to undertake the work. There were altercations between the appellant-accused and Pundlik, the appellant caught hold of Pundlik and accused No.2-Eknath, accused No.3-Santosh, accused No.4-Vinayak and accused No.6-Waman joined the appellant-accused and they started ::: Uploaded on - 10/03/2016 ::: Downloaded on - 31/07/2016 06:30:38 ::: Judgment 3 apeal137.99.odt beating Pundlik with fists and bricks. It is alleged that Pundlik got himself released and ran towards the house of his father-Vitthal Borse.
It is alleged that accused No.5-Sakhubai and accused No.7-Taibai followed Pundlik, caught hold of him near the house of Natthu Pachpor and started beating Pundlik with chappals and in the meantime, the appellant/accused and other accused reached there with sticks and started beating Pundlik with sticks on his head and legs, accused No.2-
Eknath gave blow of stick on his head. Pundlik suffered bleeding injuries. Ramkrushna Borse came there to rescue Pundlik. It is alleged that the accused then ran away. Pundlik and Ramkrushna were taken in a bullock cart to Nandura. Ramkrushna Borse lodged report. Crime came to be registered against the accused for the offences punishable under Sections 324 and 34 of the Indian Penal Code. Pundlik and Ramkrushna were referred for the medical examination. Pundlik succumbed to the injuries in General Hospital, Khamgaon on 15th December, 1996 and offence punishable under Section 302 of the Indian Penal Code came to be added against the accused.
The Investigating Officer conducted the investigation and after completing the formalities, charge-sheet was filed before the learned Judicial Magistrate First Class, Nandura and the offence being ::: Uploaded on - 10/03/2016 ::: Downloaded on - 31/07/2016 06:30:38 ::: Judgment 4 apeal137.99.odt triable by the Court of Sessions, the matter was committed to the Sessions Court for trial. The charges were framed against the accused, they did not accept the guilt, the trial was conducted and the judgment came to be passed by the learned Additional Sessions Judge. The appellant, being aggrieved by the judgment passed by the learned Additional Sessions Judge has filed this appeal.
4. Shri R.M. Daga, learned advocate for the appellant has referred to the evidence and has tried to point out certain discrepancies in the evidence. Referring to the examination-in-chief of Ramkrushna Ukarda Borse (P.W.-1), it is pointed out that this witness is an eyewitness and he has stated that Eknath Zalte (co-accused) has given a blow on his head by a stick. It is submitted that there is only one injury on the head of Ramkrushna Ukarda Borse and in view of the evidence that the blow is given by Eknath Zalte (co-accused), the appellant cannot be held guilty for causing injuries to Ramkrushna Borse. It is submitted that the evidence of Ramkrushna Ukarda Borse shows that Pundlik was taken to the Police Station, Nandura, however, it is unexplained as to why Pundlik has not given the report. It is submitted that according to the prosecution Pundlik suffered injuries on 14th December, 1996 around 8.15 a.m. and he succumbed to the ::: Uploaded on - 10/03/2016 ::: Downloaded on - 31/07/2016 06:30:38 ::: Judgment 5 apeal137.99.odt injuries on 15th December, 1996 around 10.30 p.m. in the hospital. It is argued that the prosecution has not explained as to why Dying Declaration of Pundlik was not recorded. From the cross-examination of Ramkrushna Ukarda Borse, it is pointed out that though this witness claims to be the eyewitness, the cross-examination of this witness shows that he had seen Pundlik lying in the pool of blood then he was given a blow of stick on his head and then he became unconscious and he then gained consciousness at the house of Vitthal Borse and therefore, it is clear that this witness is not an eyewitness and his evidence cannot been relied upon to convict the appellant.
5. The learned advocate for the appellant has pointed out the examination-in-chief of Tukaram Mango Pachpor (P.W.-5) which shows that Ramkrushna Borse intervened and tried to rescue Pundlik and he was hit by a stick by Eknath Zalte (co-accused) and he received head injury. It is argued that the description of the incident as given by Tukaram Mango Pachpor differs from the description of the incident given by Ramkrushna Borse. It is submitted that variations are material and ought to have been considered by the learned Additional Sessions Judge and the non-consideration of these relevant discrepancies has resulted in erroneous judgment. It is prayed that the appeal be ::: Uploaded on - 10/03/2016 ::: Downloaded on - 31/07/2016 06:30:38 ::: Judgment 6 apeal137.99.odt allowed, the judgment be set aside and the appellant be acquitted of the charge levelled against him.
The learned advocate for the appellant has submitted that considering the nature of the incident, the learned Additional Sessions Judge has committed an error in sentencing the appellant to undergo rigorous imprisonment for ten years when the accused No.2-Eknath Dama Zalte and accused No.3-Santosh Bagwan Tayade are also found guilty for commission of the offence punishable under Section 304-II and 34 of the Indian Penal Code and Section 324 and 34 of the Indian Penal Code, however, they are sentenced to undergo rigorous imprisonment for one year and six months on each count and to pay fine of Rs.1,000/- each on each count, in default to suffer simple imprisonment for 3 months.
In the alternative, it is submitted that the learned Additional Sessions Judge ought to have imposed the same sentence on the appellant as is imposed on accused No.2-Eknath and accused No.3-
Santosh.
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6. Ms Ritu Kalia, learned A. P. P. has supported the impugned judgment. It is submitted that the findings recorded by the learned Additional Sessions Judge are based on proper appreciation of the evidence on record and the minor discrepancies pointed out in the evidence of the prosecution witnesses are not of such a nature that it can be said that the conclusions of the learned Additional Sessions Judge are not proper. It is prayed that the appeal be dismissed.
7. After hearing the learned advocate for the appellant and the learned A.P.P. and examining the record, I find that the conclusions of the learned Additional Sessions Judge that the prosecution has proved that the appellant, along with accused No.2 and accused No.3 conspired to cause death of Pundlik Borse and to voluntarily cause hurt to Ramkrushna Borse and they caused bodily injuries to Pundlik Borse having knowledge that they are sufficient to cause his death are proper.
The learned Additional Sessions Judge has rightly concluded that the prosecution has failed to establish that the accused had intention to cause death of Pundlik Borse. The learned A.P.P. has rightly submitted that the discrepancies pointed out by the learned advocate for the appellant in the evidence of Ramkrushna Borse (P.W.1) and Tukaram Pachpor (P.W.5) are irrelevant and are not of such a nature that the ::: Uploaded on - 10/03/2016 ::: Downloaded on - 31/07/2016 06:30:38 ::: Judgment 8 apeal137.99.odt conclusions of the learned Additional Sessions Judge can be said to be improbable or perverse. The learned advocate for the appellant has not been able to show that the findings recored by the learned Additional Sessions Judge recording that the appellant is guilty of the offence is required to be interfered with.
8. However, the alternate submissions made by the learned advocate for the appellant require consideration. Accused No.2-Eknath and accused No.3-Santosh are found guilty for commission of the offence punishable under Section 304-II and Section 34 of of the Indian Penal Code and Section 324 and 34 of the Indian Penal Code and they are sentenced to undergo rigorous imprisonment for one year and six months on each count and to pay fine of Rs.One Thousand each on each count and in default to suffer simple imprisonment for three months. The appellant was in custody since 15th December, 1996 till he is released on bail pursuant to the order passed by this Court on 7th May, 1999, suspending the sentence. The respondent has not complained that the appellant is involved in any crime after he is released on bail. In the above facts, I am of the view that the following order will sub-serve the ends of justice :
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i) The criminal appeal is partly allowed.
ii) The conviction of the appellant for the offence punishable under Section 304-II of the Indian Penal Code is maintained. However, the sentence is modified as under : The appellant is sentenced to undergo rigorous imprisonment for the period already undergone by him i.e. for the period for which he had been in jail.
iii) In addition to the fine of Rs.One Thousand, the appellant shall deposit Rs.One Lakh towards compensation within three months, failing which the appellant to undergo simple imprisonment for two years.
iv) The amount of compensation shall be deposited before the trial Court.
v) On deposit of the amount of compensation, it shall be given to the legal heir/ heirs of deceased Pundlik Vitthal Borse.
vi) The bail bonds of the appellant shall stand cancelled after deposit of the amount of compensation.
The Criminal Appeal is disposed of accordingly.
JUDGE RRaut..
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