1 apeal503.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.503 OF 2004
1) Gopal s/o Shamrao Kachole,
Aged about 30 years,
2) Sau. Rukhmabai w/o Gopalrao
Kachole, Aged about 31 years,
Both resident of Burkoni,
Police Station Hinganghat,
Tahsil - Hinganghat, District-
Wardha. .... APPELLANTS
VERSUS
State of Maharashtra,
At the instance of Police Station Officer,
Police Station Hinganghat, District
Wardha. .... RESPONDENT
______________________________________________________________
Shri J.D. Bastian, Advocate for the appellants,
Shri A.V. Palshikar, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 20
DECEMBER, 2017
th
ORAL JUDGMENT :
The appellants are aggrieved by the judgment and order dated 17-7-2004 passed by the learned 2 nd Ad hoc Additional Sessions ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:18 ::: 2 apeal503.04 Judge, Wardha in Sessions Trial 103/2003, by and under which the appellants are convicted for offence punishable under Section 324 read with Section 34 of the Indian Penal Code ("IPC" for short) and are sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs.500/- each.
2. Heard Shri J.D. Bastian, learned Counsel for the appellants and Shri A.V. Palshikar, learned Additional Public Prosecutor for the respondent.
3. Shri J.D. Bastian, learned Counsel for the appellants (hereinafter referred to as the "accused") submits that the evidence on record is marred by omissions and exaggerations and the learned Sessions Judge erred in recording a finding of guilt. The evidence is not confidence inspiring and the accused ought to have been extended the benefit of doubt, is the submission. In the alternate, the submission is that the incident occurred fifteen years ago in the heat of the moment and it is apparent that there was some provocation which may have made the accused to react violently. The accused have three children and are living a life of honest and law abiding citizens. If the conviction is to be maintained, the accused be granted the benefit of ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:18 ::: 3 apeal503.04 the probation under Section 4 of the Probation of Offenders Act, is the submission.
4. After hearing the learned Counsel for the accused Shri J.D. Bastian and the learned Additional Public Prosecutor for the respondent Shri A.V. Palshikar, I have called for the reports of the District Probation Officers, Wardha and Yavatmal, by the order dated 28-11-2017. The perusal of the reports would reveal that the District Probation Officers have opined that the accused deserve to be released on probation.
5. Shri J.D. Bastian, learned Counsel did make an attempt to persuade me to hold that the conviction of the accused under Section 324 of the Indian Penal Code is bad in law and that the judgment impugned is against the weight of the evidence on record. However, after giving my anxious consideration to the evidence on record, I do not find any infirmity in the conviction recorded by the learned Sessions Judge.
6. The genesis of the prosecution lies in the oral report dated 17-8-2002 lodged by the injured Tukaram Kumbhalkar, who is ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:18 ::: 4 apeal503.04 examined as P.W.1. The gist of the oral report is that at 7-30 a.m. on 17-8-2002 injured Tukaram went to his field with bullocks, he tethered the bullocks and started inspecting the field. The bullocks of accused Gopal Kachole entered the field of the injured at 9-30 a.m. or thereabout. Since there were standing cotton crops in the field of the injured, he informed Gopal that the bullocks had entered his field. However, Gopal and his wife abused and assaulted the injured Tukaram. The report states that Gopal Kachole delivered a sickle blow on the head of Tukaram and the wife of Gopal delivered blows above the right eye and on the left portion of forehead by sickle. Tukaram also received injuries on the left wrist, left little finger and right forearm. The report further states that when Tukaram fell down due to giddiness, he was assaulted by Gopal with stick.
7. The injured Tukaram is examined as P.W.1. The deposition is broadly consistent with the contents of the oral report. Certain omissions are brought on record. But then, the omissions do not affect the credibility of the evidence since they do not touch the core of the incident. The deposition as regards the assault is cogent, consistent and reliable and nothing is brought on record in the cross- examination to disbelieve the evidence of P.W.1 that he was assaulted ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:18 ::: 5 apeal503.04 by the accused with sickle.
The evidence of P.W.1 Tukaram is corroborated by Sunanda Kamdi, who is examined as P.W.2, as an eyewitness. However, while the evidence of P.W.2 corroborates that of P.W.1 to the extent the accused assaulted the injured Tukaram with sickle, it is also extracted from P.W.2 that there was a scuffle and that in her previous statement to the police, she stated that the complainant Tukaram inflicted a stick blow on the waist of Gopal.
The evidence of the injured is further corroborated by P.W.3 Dr. Snehal Bonde, who after examining the injured Tukaram issued injury certificate Exhibit 31, in which the following injuries are mentioned :
1) Lacerated wound 4 x 4 x ½ cm. in size over left forearm.
2) Lacerated wound about 3 x 2 x ½ cm. over left little finger.
3) Lacerated wound about 1 x ½ x ¼ cm. (depth) above right eyebrow.
4) Lacerated wound 1 x ½ x ¼ cm. (depth) over scalp left side.
5)Contusions longitudinal 3 to 4 in numbers, 5 x 6 cm. over back.
8. On a holistic consideration of the evidence on record, I do not find any error in the view taken by the learned Sessions Judge that ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:18 ::: 6 apeal503.04 the accused assaulted Tukaram and that both the accused deserve to be convicted for offence punishable under Section 324 of the Indian Penal Code. The defence that accused Rukhmabai was assaulted by the complainant, Gopal rushed to rescue his wife leading to the scuffle, is disbelieved by the learned Sessions Judge. The bleeding which accused Rukhmabai suffered in custody is held to be unconnected with the incident. Accused Rukhmabai was promptly medically examined after arrest and no external injury was detected. She was, however, admitted in the hospital on 20-8-2002. The learned Sessions Judge has considered the circumstances in which accused Rukhmabai was admitted in the hospital thus :
"17) From the evidence of P.W.5 Shri Patil it seems that, he has referred both the accused for their medical examinations after their arrest. Their medical certificates are placed on record. On examination, no external injuries were found on their persons. He has admitted in his evidence that during police custody, accused no.2 Sau. Rukhmabai suffered bleeding. Therefore, on 20-8-2002, she was admitted in the hospital for her bleeding. He has deposed in his evidence that he has not ill-treated Rukhmabai during his custody. Ex.50 goes to show that Rukhmabai Gopal was admitted in the hospital since 20-8-2002. She is having incomplete abortion with intrauterine infection and needs to be evacuated after antibiotic coverage. Hence, she is admitted and will be operated tomorrow. This certificate is issued on 21-8-2002. As per the medical certificate (Ex.68), no external injuries were found on the person of Rukhmabai on examination by ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:18 ::: 7 apeal503.04 Dr. S.V. Bonde. As per her defence, if really she was pushed by Tukaram and due to that she received bleedings, she could have complained before the police on the day of her arrest. She could have suffered stomachache since the date and time of incident. But, she has not complained for the same either before Investigating Officer or before the Medical Officer when she was arrested and when she was medically examined by the Investigating Officer and Medical Officer respectively. At least, on examination, the Medical Officer could have found abrasions on the person of Rukhmabai. But, the Medical Officer has not found any external injuries on the person of Rukhmabai. Therefore, the defence taken by accused Rukhmabai seems to be not reliable."
9. However, in the factual matrix, the accused deserve to be granted the benefit of probation. I have already noted that the report of the District Probations Officer is positive. The incident occurred more than fifteen years ago. The incident is blurred on certain aspects and the possibility of a provocation leading to the aggression cannot be ruled out. The accused are living an honest and law abiding life since the incident. If the accused are sent to prison, it is quite possible that they would turn into obdurate criminals. In the circumstances, I am inclined to maintain the conviction and instead of sentencing the accused to imprisonment, to release the accused on probation under Section 4 of the Probation of Offenders Act and to direct them to enter into a bond to appear and receive sentence when called upon during ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:18 ::: 8 apeal503.04 period of six months and to meanwhile keep peace and be of good behaviour The appeal is partly allowed.
JUDGE adgokar ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:18 :::