1 060417 cri. appal 485.03 & connected.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.485 of 2003
Dharma @ Dharmapal s/o Fakiraji Mate,
Aged about 35 years, Occupation- Cultivation,
Resident of Bamni, Tahsil Nagbhid,
District Chandrapur. .... Appellant.
-Versus-
The State of Maharashtra,
through the Police Station Officer Nagbhid. .... Respondent.
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None for appellant.
Shri A.S. Fulzele, Add.P.P. for State.
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With
Criminal Appeal No.611 of 2003
The State of Maharashtra,
through the P.S.O., Police Station Nagbhid,
Distt. Chandrapur. .... Appellant.
-Versus-
Dharma @ Dharmapal s/o Fakiraji Mate,
Aged about 35 years, Occ.- Cultivation,
R/o.-Bamni, Tq.- Nagbhid, Distt.- Chandrapur. .... Respondent.
----------------------------------------------------------------------------------------------
Shri A.S. Fulzele, Add.P.P. for State.
None for respondent.
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2 060417 cri. appal 485.03 & connected.odt
Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th Dated : 06 March, 2017.
O R A L J U D G M E N T (Per B.P. Dharmadhikari, J.) Heard the learned Additional Public Prosecutor for the State in both the Appeals. Nobody appears for the respondent. The matter was called out in first half. As there was no appearance on behalf of respondent, it was kept back. Again in second half there was no appearance on behalf of respondent. At the time when the learned Additional Public Prosecutor was to conclude his argument, learned Advocate Ms Nagia Pathan, the junior of learned Advocate Shri S.V. Sirpurkar has appeared and requested for taking up the matter on Tuesday. We have rejected the request as To-day i.e. Thursday is already notified as a day scheduled for taking up the old matters and learned Advocate Shri S.V. Sirpurkar has appeared in some matters earlier, today only.
2] The accused was charged under Section 302 of the Indian Penal Code, 1860 in relation to the incident dated 15-04-2000. The prosecution claimed that on that day about 10.00 hours at Mouza Bamni Kotgaon field, the accused voluntarily caused grievous hurt to Bajirao Fagoji Uike by means of stick and committed an offence. The rd charge was framed by 3 Adhoc Additional Sessions Judge, Chandrapur. First charge on the basis of these facts points out ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:33:26 ::: 3 060417 cri. appal 485.03 & connected.odt offence under Section 326 of the Indian Penal Code, while in later part he is charged with offence of intentionally committing murder or knowingly causing death of Bajirao Fagoji Uike punishable under Section 302 of the Indian Penal Code.
3] Vide judgment delivered on 26-06-2003, the trial Court has acquitted accused Dharma of offence punishable under Section 302 of the Indian Penal Code. However, he has been found guilty under Section 326 of the Indian Penal Code and sentenced to suffer RI for three years and to pay a fine of Rs. 5000/- or i/d thereof to suffer RI for six months. As he was in jail from 23-04-2000 to 11-09-2000, set off under Section 428 of the Code of Criminal Procedure, 1973, has been permitted. This acquittal under Section 302 of the Indian Penal Code has been questioned by the State Government in Criminal Appeal No.611 of 2003 while conviction under Section 326 of the Indian Penal Code is questioned by accused Dharma in Criminal Appeal No.485 of 2003.
4] In Criminal Appeal No.485 of 2003, this Court on 07-08-2003 while admitting it, released Dharma on bail. Thus, after 26-06-2003 till his release after 07-08-2003 he was again in jail. 5] The learned Additional Public Prosecutor has invited our attention to the evidence on record to urge that about three witnesses ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:33:26 ::: 4 060417 cri. appal 485.03 & connected.odt have consistently spoken of oral dying declaration and there is no cross examination about it. Evidence of (PW-2) Santosh Kumare is also relied upon to urge that apart from oral dying declaration, this person has also pointed out that he has witnessed the actual assault. Our attention is also invited to similar evidence adduced by (PW-4) Manoj Madavi and (PW-5) Sanjay Nagapure.
6] In view of this consistent evidence the learned Additional Public Prosecutor submits that the role of Dharma as an author of wound has been accepted, mere fact that one of the doctors namely (PW-8) Dr. Sindhu Brahmanand initially found only one lacerated wound over the posterior aspect of scalp, cannot constitute a valid reason to discard the evidence adduced by (PW-9) Dr. Vipul Ambade who has conducted the post mortem. This doctor has found total five external wounds and four out of them are relevant for the present purposes. The learned Additional Public Prosecutor invites our attention to the corresponding internal injuries to urge that the serious nature thereof is apparent. Placing reliance upon the length and girth of stick used for assault and the injuries he argues that blow was forceful & intention as also knowledge is apparent and hence the acquittal under Section 302 of the Indian Penal Code is unwarranted.
7] With the assistance of the learned Additional Public Prosecutor, we have perused the records as also the judgment dated 26-06-2003 ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:33:26 ::: 5 060417 cri. appal 485.03 & connected.odt delivered by IInd Adhoc Additional Sessions Judge, Chandrapur. 8] (PW-2) Santosh Kumare has in-chief stated that one Sandip Randhai called him saying that Bajirao was lying on ground. He went near Bajirao. Bajirao was having bleeding injury on his head. He enquired from Bajirao who beat him. Bajirao told that Dharma Mate (accused) assaulted him by means of stick. Santosh then brought water from the well of Mate and gave it to Bajirao. One Donu was going towards his house and Santosh narrated the incident to him. Sandip was standing near Bajirao. The APP got Santosh declared hostile and in cross examination conducted by APP, Santosh has accepted that he saw Dharma giving stick blow on the head of Bajirao and thereafter Dharma ran away from the spot. After this, cross examination has been conducted on behalf of accused and in it all suggestions given to him by learned Advocate for the accused are accepted by him. He has stated that the Police did not read out his statement to him and he did not see Dharma while beating Bajirao with stick. (PW-3) is Sandip Randhai who had called Santosh. His evidence in-chief shows that he was taking his cows for grazing and cattle of Bajirao (deceased) and cattle of Santosh were already there for grazing. Dharma assaulted Bajirao by stick on his head. Then he and Santosh gave water to Bajirao. He called Donu. His cross examination reveals that he had taken his cattle for grazing towards the field of Natthu Katekhaye. The field of Natthu is at a distance of ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:33:26 ::: 6 060417 cri. appal 485.03 & connected.odt half kilometer away from the field of Dharma. In cross, he has accepted that there were trees of Babhul, Kadunimb and Palas and due to trees the field of Dharma cannot see from the field of Natthu. He further states that he did not see Dharma while beating Bajirao by stick. He went there and Bajirao was lying on ground unconscious. 9] (PW-4) Manoj Madavi also deposed that he was informed by one Santosh Nagapure that his grand father (deceased Bajirao) was beaten by accused by means of stick. Therefore he came to the field, found Bajirao lying on the common bund (dhura) of Nannaware, Dharma and Bhendarkar. Bajirao had sustained injury on head. He asked his grand father and his grand father told him that Dharma Mate assaulted him. His cross examination reveals that he noticed 3-4 injuries on the person of his grand father. He denied that his grand father was in unconscious condition. The remaining cross examination of this witness does not bring on record anything to discredit him. 10] Perusal of evidence of Santosh, supra, reveals that he has not been cross examined about oral dying declaration brought on record through him by the State. In cross examination conducted by the APP, Santosh has stated that he had seen Dharma attacking on Bajirao. He has further stated that he was called by Sandip. This Sandip is PW-3. (PW-3) Sandip has also deposed that he saw Dharma attacking Bajirao with stick on head. Both these witnesses, ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:33:26 ::: 7 060417 cri. appal 485.03 & connected.odt in-chief support each other. The chief appears to be also in consonance with respective police statements. However, during cross examination, they appear to have mechanically accepted the suggestions given by learned Advocate for the accused. Impliedly, they agree that they have not seen the actual assault. However, in totality of circumstances, we are not inclined to give much importance to those answers given by them in cross examination. In any case, as there is no cross examination of any of these witnesses on oral dying declarations, fact that deceased Bajirao himself told these persons about attack by Dharma has consistently come on record. Bajirao communicated this on three occasions to three persons. 11] Bajirao was first examined by (PW-8) Dr. Sindhu Brahmanand. This doctor has noted only one injury.
"i) Lacerated wound over the posterior aspect of scalp.
Size 6 cm. X 2 cm. X cm. and the age of
injury was 2 to 3 hours. The injury can be
grievous injury."
Accordingly, injury certificate Exhibit 40 was given.
12] (PW-9) Dr. Vipul Ambade, who has conducted post mortem on 18-04-2000 has noted five external injuries :- ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:33:26 :::
8 060417 cri. appal 485.03 & connected.odt
"i) Abrasion over parital area half inch left to mid line
1 inch x half inch, brown scab present.
ii) Abrasion over left parietal prominence half inch x
half inch, brownish scab present.
iii) Abrasion one and half inch right and anterior to injury no.1 x half inch brownish scab present.
iv) Stitch wound over mid parieto occipatal vertically oblique two and half inch length over the margin approximated.
v) Bed sores present over left side buttock, 3 inch x 2½ inch, evidence of infection present."
13] (PW-8) Dr. Sindhu Brahmanand examined Bajirao on the date of incident i.e. on 15-04-2000 while post mortem was conducted on 18-04-2000. Bajirao has received medical treatment for about three days. The details thereof are not brought on record. The trial Court in this situation has found it difficult to accept that more than one injury was inflicted by accused Dharma. The prosecution has not led any evidence and advanced any argument to explain this inconsistency. 14] The learned Additional Public Prosecutor, however, points out to us that external injury noted at the time of post mortem at serial no.(v) are bedsores which may have developed after Bajirao was admitted as indoor patient. According to him, the other four injuries are caused by Dharma. Injury at serial no.(iv) is stitched wound. There is nothing on ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:33:26 ::: 9 060417 cri. appal 485.03 & connected.odt record to find out the age of that injury. Whether it was old injury or then whether stitches were fresh, is not apparent. The same can be said about remaining three injuries noted as external injuries. Other record of P.M. is not produced. No record of any treatment has been placed on record to show that Bajirao was treated for more than one head injury.
15] In this situation, we are not in a position to find any fault with the view of trial Court that Dharma cannot be said to have caused all of these injuries. There is no medical opinion on record to show that stick in question could have caused a fatal injury. The acquittal, therefore, under Section 302 of the Indian Penal Code as recorded appears to be just and proper. More reasons are being given little latter.
16] We also have enquired from the learned Additional Public Prosecutor about query report. Though the stick used for assault is not shown to any of the prosecution witnesses, it has been recovered under Section 27 of the Indian Evidence Act, 1872. The recovery has been established by examining (PW-10) Vijay Kuhikar, the Investigating Officer. Witness Natthu Ramgunde was examined as (PW-6) to prove the seizure panchanama. He has identified the stick as Article-'A'. However, he states that panchanama was prepared in Police Station. The details thereof are given by (PW-10) Vijay Kuhikar. ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:33:26 :::
10 060417 cri. appal 485.03 & connected.odt The memorandum and seizure Panchanama show that it (Bamboo stick) was hidden by accused Dharma in the heap of grass and he had taken it out in presence of panch witnesses. The Chemical Analyser's report shows the presence of human blood on the said stick. Thus fact that the stick was used for assaulting Bajirao by Dharma has been proved on record.
17] Said stick is about 49 inches in length and 3 inches in girth at one & 3.6 inches at the other end. It is having seven nodes. 18] We have enquired from the learned Additional Public Prosecutor about availability of an opinion of expert that such a stick can cause death if its blow is given on head. Unfortunately, in the present matter, the stick was not sent to any doctor and there is no such opinion available on record. Section 326 of the Indian Penal Code requires using of the weapon in commission of the offence which is likely to cause death. Here that evidence is lacking.
19] In the light of this discussion, we find that conviction of Dharma under Section 302 as also u/s 326 of the Indian Penal Code by the trial Court is unwarranted. However, we hold him guilty under Section 324 of the Indian Penal Code. First doctor examining him as already found that injury may be grievous. It is also on vital part & Bajirao ultimately died due to it.
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11 060417 cri. appal 485.03 & connected.odt
20] Considering the fact that he was pronounced guilty under
Section 326 of the Indian Penal Code on 26-06-2003 for a incident which has taken place on 15-04-2000 and the proceedings are pending till date, we are inclined to accept the period of imprisonment already undergone by him as sufficient punishment in the present circumstances.
21] Accordingly, we dismiss Criminal Appeal No.611 of 2003 filed by the State Government and partly allow Criminal Appeal No.485 of 2003 filed by the accused and alter his conviction to one under Section 324 of the Indian Penal Code from Section 326 of the Indian Penal Code accepting the period already spent in jail as sufficient punishment under Section 324 of the Indian Penal Code. His bail bonds are cancelled. The muddemal property be dealt with as directed by the trial Court after the appeal period is over.
JUDGE JUDGE
Deshmukh
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