Criminal Appeal No. 269-1999 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 269 of 1999
Gajanan S/o Sukdeo Bhaturkar,
Aged about 39 years,
Resident of Pimpalgaon Raja,
Tahsil-Khamgaokn,District-Buldhana. .....APPELLANT
...V E R S U S...
State of Maharashtra,
through P.S.O.P.S. Pimpalgaon Raja
Tahsil- Khamgaon ,District -Buldana ...RESPONDENT
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Shri A.R.Fuley Learned Advocate h/f Shri S.V.Sirpurkar Learned Advocate for appellant.
Shri R.S.Nayak, Learned A.P.P. for State/respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 13,2017 ORAL JUDGMENT The present appeal is directed against the judgment and order of conviction passed by Additional Sessions Judge, Khamgaon dated 10/9/1999 in S.T.No.28/94 by which the Learned Judge has convicted the appellant for the offence punishable under Section 307 of the Indian Penal Code and directed that he should suffer R.I. for 5 years and to pay a fine of Rs. 2000/- and in default to suffer further R.I. for 1 year. ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:52:02 ::: Criminal Appeal No. 269-1999 2
The appellant is also convicted for the offence punishable under Section 324 of the Indian Penal Code and on that count sentenced him for 2 years of Rigorous Imprisonment and fine of Rs. 1000/- and in default to suffer further Rigorous Imprisonment for 6 months. The Court below directed that these sentences shall run concurrently.
2. I heard Learned Advocate Shri A.R.Fuley holding for Shri S.V.Sirpurkar, Learned Advocate for the petitioner and Learned Additional Public Prosecutor Shri R.S.Nayak for the respondent/State. With their assistance I have gone through the record and proceeding.
3. Initially, appellant alongwith two others were also charged by Learned Sessions Judge for the offence punishable under Sections 307 and 324 of the Indian Penal Code. By the impugned judgment the Court below acquitted original accused no.2 Sukdeo Rodaji Bhaturkar and original accused no.3 Vilas Mahadeo Hiradkar from all offences. The State has not preferred any appeal against their acquittal.
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4. F.I.R.(Exh.24) was lodged by Shyam Tulshiram Taularkar (PW4) on 28/4/1994 with P.S.Pimpalgaon Raja. The police authority on the basis of the said report registered a crime for the offence punishable under Section 307 r/w Section 34 of the Indian Penal Code vide Crime No.27/1994 against the appellant and against acquitted accused. In the F.I.R. (Exh.24) it is reported that disputed land over which construction of wall was going was purchased by accused persons from one Wasant Fakira, the uncle of the first informant. It is reported that when the accused persons were constructing the wall that time Tulshiram (PW1), the father of the first informant tried to convince the present appellant that he should not construct the wall on the said land. Upon that he was assaulted by means of wooden rafter. It is also stated in the F.I.R. that Arun (PW2) and Shankar Fakira (PW9) were also assaulted by the present appellant by means of wooden rafter.
5. The prosecution has examined in the present case in all 11 witnesses. Tulshiram(PW1), Arun(PW2) and Shankar (PW9) are the injured persons. Their injury reports are available on record at Exhs. 31,32 and 30. It is to be noted that these persons ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:52:02 ::: Criminal Appeal No. 269-1999 4 were examined by Dr.Eknath Choudhary(PW8). It is to be noted here that the respective injury certificates are silent in respect of nature of the injuries. Further examining Dr.Eknath Choudhary (PW8) has also not stated in his deposition about the nature of the injuries as to whether the injuries noticed by him were grievous or not. As per the evidence of Dr.Eknath Choudhary (PW8) the injured were referred to Khamgaon. The evidence of Tulshiram(PW1) and Arun (PW2) show that there after they were shifted to Medical Hospital at Nagpur. According to their deposition they were indoor patient for a period of 10 to 15 days.
6. Section 320 of the Indian Penal Code defines ' grievous hurt' . It reads as under:
"320 Grievous hurt- The following kinds of hurt only are designated as "grievous":-
First.-Emasculation.
Secondly-Permanent privation of the sight of either eye Thirdly- Permanent privation of the hearing of either ear.
Fourthly-Privation of any member or joint.
Fifthly- Destruction of permanent impairing of the powers of any member or joint.::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:52:02 ::: Criminal Appeal No. 269-1999 5
Sixthly-Permanent disfiguration of the head or face.
Seventhly-Fracture or dislocation of a bone or tooth.
Eightly- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
7. The prosecution has not filed any x-ray report on record to show that any of the injured suffered any fracture. Further for the reason best known to the prosecution the prosecution has utterly failed to produce the record in respect of the hospitalisation of Tulshiram(PW1) and Arun (PW2). Even according to the injured persons they were not indoor patient for a period of 20 days.
8. In the absence of any record or any evidence in respect of the nature of the injuries it is crystal clear that the prosecution has utterly failed to prove that injured suffered any grievous injury.
9. It is an admitted position that the space on which the accused persons were constructing a wall was purchased by them ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:52:02 ::: Criminal Appeal No. 269-1999 6 from uncle/first informant. It is also not in dispute that they were not making any encroachment over the land of first informant or land of Wasant. Thus, the appellant was well within his right to raise the construction on the land belonging to him.
10. However, there is a consistent evidence on the part of the prosecution witnesses that it is the appellant who has given rafter blow. It is brought on record that the rafter was available on the spot itself being a construction site.
11. In my view, the Learned Judge of the Court below has committed a serious mistake in punishing the appellant for the offence punishable under Section 307 of the Indian Penal Code since there was nothing on record to show the fact that the injuries suffered by the injured were grievous one or those were dangerous to life. Therefore that conviction for the offence punishable under Section 307 of the Indian Penal Code cannot be stand to the scrutiny of law.
12. In so far as the conviction under Section 324 of the Indian Penal Code is concerned as observed above there is ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:52:02 ::: Criminal Appeal No. 269-1999 7 consistent evidence of the prosecution that appellant has given rafter blow. Therefore, the conviction under Section 324 of the Indian Penal Code is just and proper.
13. In so far as the sentence is concerned the incident is dated 28/4/1994. The appellant was in jail for some time. In my view ,interest of justice will meet if the following order is passed.
O R D E R i. Appeal is partly allowed.
ii. The judgment and order of conviction passed by Learned Ad-hoc Additional Sessions Judge, Khamgaon dated 10/9/1999 in S.T. No. 28/1994 convicting the appellant for offence punishable under Section 307 of Indian Penal Code is hereby quashed and set aside. iii. Appellant is acquitted from the offence punishable under Section 307 of Indian Penal Code.
iv. The conviction imposed upon the appellant for the offence punishable under Section 324 of the Indian Penal Code is hereby confirmed, however the order of sentence is modified. The appellant is sentenced for a jail period for which he has already undergone in jail. ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:52:02 ::: Criminal Appeal No. 269-1999 8 v. In addition to the fine amount which he has already deposited the appellant is further directed to pay fine amount of Rs. 5000/- within a period of four weeks before the Court below . If additional fine amount of Rs. 5000/- is not paid then in that event the sentence imposed by Learned Judge of the Court below in so far as offence punishable under Section 324 of Indian Penal Code will revive and that Court will take necessary steps against appellant so that he will undergo the sentence.
JUDGE kitey ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:52:02 :::