1 jg.apeal 409,511&522.03.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 409 OF 2003
(1) Gopal s/o Daulatrao Gogal,
aged about 70 years,
(2) Manohar s/o Gopalrao Gogal,
aged about 33 years,
(3) Dnyandeo s/o Gopalrao Gogal,
aged about 25 years ... Appellants
VERSUS
The State of Maharashtra, through
P.S.O., Walgaon. ... Respondent
-------------------------------------------------------------------------------------------------
with
CRIMINAL APPEAL NO. 511 OF 2003
State of Maharashtra,
through Police Station Officer,
Walgaon. ... Appellant
VERSUS
(1) Gopal s/o Daulatrao Gogal,
aged about 70 years,
(2) Manohar Gopalrao Gogal,
aged about 33 years,
All r/o Khartalegaon,
Police Station : Walgaon,
Dist. Amravati. ... Respondents
-----------------------------------------------------------------------------------------------------------------------
with
CRIMINAL APPEAL NO. 522 OF 2003
State of Maharashtra,
through Police Station Officer,
Walgaon. ... Appellant
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 :::
2 jg.apeal 409,511&522.03.odt
VERSUS
(1) Gopal Daulatrao Gogal,
aged about 70 years,
(2) Manohar Gopalrao Gogal,
aged about 33 years,
(3) Dnyandeo Gopalrao Gogal,
aged about 25 years,
(4) Mahadeo @ Balu Gopal Gogal,
aged about 22 years,
All r/o Khartalegaon,
Police Station : Walgaon,
Dist. Amravati. ... Respondents
-------------------------------------------------------------------------------------------------
Shri R. M. Daga, Advocate for the appellants in Appeal 409/03 and for
respondents in Appeal No. 511 & 522 of 2003
Shri D. P. Thakre, Additional Public Prosecutor for the State/appellant
in Appeal No. 511 & 522 of 2003 and for respondent in Appeal 409/03
-------------------------------------------------------------------------------------------------
CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
Date of reserving the judgment : 7/11/2017.
Date of pronouncing the judgment : 20/11/2017 Common Judgment (Per : M.G. Giratkar, J) Accused Gopal, Manohar, Dnyandeo and Mahadeo were prosecuted on the report of Liladhar Sampatrao Kadu. It was alleged in the report that accused Gopal caught hold Liladhar and Manohar gave blow of knife on stomach and hand of Liladhar. It was also alleged that accused Mahadeo caught hold Jaikumar and Dnyandeo gave blow of ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 ::: 3 jg.apeal 409,511&522.03.odt axe to Jaikumar. On the report of Liladhar, crime was registered against the accused persons for the offences punishable under Sections 307, 326 read with Section 34 of the Indian Penal Code.
2. During the trial, prosecution has examined in all total 11 witnesses. Learned trial Court convicted accused Gopal and Manohar for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code. Accused Dnyandeo was convicted for the offence punishable under Section 324 of the Indian Penal Code. Accused Mahadeo was acquitted for all of the offences vide judgment dated12-6-2003 by the 2nd Additional Sessions Judge, Amravati which is impugned in these appeals.
3. Prosecution/State has challenged the impugned judgment vide Criminal Appeal No. 511/2003 against accused Gopal and Manohar contending that they are wrongly awarded lesser punishment and therefore, prayed to enhance the sentence for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code. The State has filed another Criminal Appeal No. 522/2003 against all the accused praying to convict the accused for the offences punishable under Sections 307 and 326 read with Section 34 of the Indian Penal Code.
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 :::
4 jg.apeal 409,511&522.03.odt
4. Accused Gopal, Manohar and Dnyandeo filed Criminal Appeal No. 409/2003. In the said appeal, it is submitted that Sessions Court was wrong in convicting the accused Gopal and Manohar for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code and to convict the accused Dnyandeo for the offence punishable under Section 324 of the Indian Penal Code and prayed to quash and set aside the judgment passed by learned Additional Sessions Judge, Amravati in S.T. No. 84/1997 dated 12-6-2003.
5. Heard learned Additional Public Prosecutor Shri Thakre for the State. He has submitted that accused persons beat Liladhar Sampatrao Kadu and Jaikumar. Accused Gopal caught hold Liladhar and accused Manohar gave blow of knife on his stomach and hand. Injuries sustained by P.W. 1 Liladhar were proved by the Medical Officer, P.W. 8 Dr. Someshwar Nirmal. Dr. Wagh (P.W.9) examined Liladhar and performed surgery. MLC of prosecution witness is proved.
6. Learned Additional Public Prosecutor Shri Thakre has submitted that accused Gopal and Manohar caused grievous injury to the witness Liladhar by knife with an intention to kill him. Therefore, accused Gopal and Manohar ought to have been convicted for the ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 ::: 5 jg.apeal 409,511&522.03.odt offence punishable under Section 307 of the Indian Penal Code.
7. Learned Additional Public Prosecutor Shri Thakre has submitted that injury to witness Jaikumar caused by accused Dnyandeo by an axe was grievous and, therefore, accused Dnyandeo ought to have been punished under Section 326 of the Indian Penal Code.
8. Learned counsel Shri R. M. Daga for the accused has submitted that P.W. 1 Liladhar has not sustained grievous injuries, therefore, accused Manohar is wrongly convicted for the offence punishable under Section 326 of the Indian Penal Code, at the most, he could have been convicted for the offence punishable under Section 324 of the Indian Penal Code. Shri Daga has pointed out evidence of P.W. 4 Jaikumar and submitted that Jaikumar himself not stated anything against the accused, therefore, accused Dnyandeo is wrongly convicted by the trial Court. He therefore, prayed to allow the appeal filed by the convict Dnyandeo. Learned counsel Shri Daga has submitted that during the pendency of appeal, Gopal died. Accused Mahadeo is not convicted by the trial Court.
9. After hearing both the sides, there is only dispute in respect of proper conviction by the trial Court. As per the evidence stated by ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 ::: 6 jg.apeal 409,511&522.03.odt P.W. 1 Liladhar Kadu, he along with his brother Samadhan were cleaning the drain near the cattle shed. Accused Gopal and Dnyandeo came there. They prevented them. When his brother Samadhan bent for cleaning, Gopal gave blow of spade on his back. At that time, villagers gathered there. Sarpanch gave understanding to the injured and accused. They went to their house. Again accused came to the spot. Accused Gopal caught hold him and Manohar gave stab on his stomach and hand by knife. There upon, Jaikumar intervened the quarrel and tried to rescue him. Mahadeo caught hold of Jaikumar and Dnyandeo gave blow of axe to the Jaikumar.
10. Evidence of Doctor, the prosecution witness no. 8 Someshwar Nirmal shows that he examined Jaikumar and found one injury of size ¾'' x ½'' muscle deep. He examined Liladhar and found two injuries. As per his opinion, healing time was 6 to 8 days. Accordingly, he issued medical certificate, Exhibit 43 in respect of injury of Jaikumar and medical certificate Exhibit 44 in respect of injuries to Liladhar.
11. Dr. Wagh has stated that he gave treatment/operated Liladhar and found two injuries on stomach and hand of Liladhar. Liladhar was discharged from Government Hospital on 3-2-1997. ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 :::
7 jg.apeal 409,511&522.03.odt
12. In respect of offence punishable under Section 324 of the Indian Penal Code, learned trial Court come to the conclusion that accused/appellant Dnyandeo voluntarily caused hurt to P.W. 4 Jaikumar and, therefore, he is convicted for the offence punishable under Section 324 of the Indian Penal Code. It is pertinent to note that Liladhar has stated that Dnyandeo gave blow of axe to Jaikumar. Injury of Jaikumar is also proved by Doctor, but injured himself i.e. P.W. 4 Jaikumar has not stated anything against any of the accused/appellant.
13. Injured Jaikumar has stated that when he was returning from the field, he found that people were gathered in front of house of Liladhar. Scuffle was going on between Liladhar and Gopal. He tried to pacify the quarrel, that time, somebody assaulted him but he did not know who assaulted him. This evidence of injured himself shows that he did not make any allegations against the person who caused injury to him. Therefore, though injury is proved, the prosecution has failed to prove as to who caused injury.
14. Liladhar is interested witness in prosecuting his rival group. If really Dnyandeo had given blow by axe to P.W. 4 Jaikumar, then he would have definitely deposed before the Court against Dnyandeo. When the injured himself not stated the name of assailant, learned trial ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 ::: 8 jg.apeal 409,511&522.03.odt Court wrongly convicted appellant/accused Dnyandeo for causing injury to Jaikumar. Jaikumar has not stated that Dnyandeo voluntarily caused injury to him. Hence, conviction of Dnyandeo is wrongly recorded by the trial Court. Therefore, appeal filed by Dnyandeo is liable to be allowed and conviction for the offence punishable under Section 324 of the Indian Penal Code is liable to be set aside.
15. In respect of conviction under Section 326 of the Indian Penal Code against Gopal and Manohar. There is no dispute that during the pendency of the appeal, Gopal died, therefore, appeal abates against Gopal. Therefore, appeal filed by appellant Manohar who is convicted for an offence punishable under Section 326 of the Indian Penal Code is to be decided. Shri Daga, learned counsel only argued that he is wrongly convicted for the offence punishable under Section 326 of the Indian Penal Code.
16. Definition of 'grievous hurt' as provided in Section 320 of the Indian Penal Code reads thus :
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
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 :::
9 jg.apeal 409,511&522.03.odt
either ear.
Fourthly. - Privation of any member or joint.
Fifthly. - Destruction of permanent impairing of the
powers of any member or joint.
Sixthly. - Permanent disfiguration of the head or
face.
Seventhly. - Fracture or dislocation of a a bone or tooth. Eighthly. - 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.
17. Evidence of Liladhar itself shows that he was under the treatment of Doctor for about 15 days. Evidence of Medical Officer, P.W. 8 shows that healing period of injuries was 6 to 8 days. As per evidence of Dr. Wagh, Liladhar was discharged from the hospital on 3-2-1997. He was admitted in the hospital on 19-1-1997. Therefore, it is clear that he was in the hospital for about 15 days. Liladhar himself has stated in his evidence that he was in the hospital for about 15 days.
18. Injuries sustained by Liladhar were not grievous as defined in Section 320 of the Indian Penal Code. Liladhar has not sustained any injury as defined from clause (1) to clause (7). He was also not in the hospital for more than 20 days, therefore, it cannot be said Liladhar sustained grievous injury as per clause (8).
19. Moreover, evidence of Liladhar itself shows that after he sustained injuries, he himself went to the Police Station and lodged ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 ::: 10 jg.apeal 409,511&522.03.odt report. Police Station, Walgaon is at the distance of 12 Kms from his village. If really, he had sustained grievous injury, then he could not have gone himself to the Police Station. Liladhar was not in the hospital for period more than 20 days and, therefore, learned trial Court wrongly convicted the accused for the offence punishable under Section 326 of the Indian Penal Code though it is clear from the evidence on record that Liladhar has sustained hurt. The said hurt was voluntarily caused by appellant Manohar by a weapon which was used for cutting etc. therefore, the offence under Section 324 of the Indian Penal Code is made out against the appellant/accused Manohar.
20. Learned counsel Shri Daga has submitted that offence is of the year 1997. Moreover, all the appellants undergone jail sentence for about three months and, therefore, lenient view be taken. Appellant Manohar has not committed any other offence and, therefore, benefit of Probation of Offenders Act be given to the appellant Manohar and the appeal filed by Dnyandeo be allowed and he be acquitted for the offence punishable under Section 324 of the Indian Penal Code.
21. We have already observed that learned trial Court has wrongly convicted the accused/appellant Dnyandeo for the offence punishable under Section 324 of the Indian Penal Code because the ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 ::: 11 jg.apeal 409,511&522.03.odt injured Jaikumar has not stated anything against him. Jaikumar who is injured not stated in his evidence that Dnyandeo voluntarily caused hurt to him, therefore, appellant/accused Dnyandeo is entitled for acquittal for the offence punishable under Section 324 of the Indian Penal Code.
22. In respect of appellant Manohar, he is wrongly convicted for the offence punishable under Section 326 of the Indian Penal Code, as grievous hurt as defined under Section 320 of the Indian Penal Code is not proved. Prosecution has proved that appellant - Manohar voluntarily caused hurt to Liladhar and, therefore, appeal filed by Manohar is liable to be partly allowed. Looking to the nature of crime, relations of the parties and age of the appellant - Manohar, he is entitled for benefit of Probation of Offenders Act. Hence, we proceed to pass the following order.
(i) Criminal Appeal Nos. 511/2003 and 522/2003 filed by the State are hereby dismissed.
(ii) Appeal filed by the appellants Manohar and Dnyandeo viz. Criminal Appeal No. 409/2003 is partly allowed.
(iii) Appellant Maonhar is acquitted of the offence punishable under Section 326 of the Indian Penal Code. He is convicted for the offence punishable under Section 324 of the Indian Penal ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 ::: 12 jg.apeal 409,511&522.03.odt Code. Instead of sending him in jail, he be released on execution of bond of good behaviour for a period of two year as per Section 4 of the Probation of Offenders Act. He shall pay amount of compensation of Rs. 10,000/- to the injured Liladhar as per Section 5 of the Probation of Offenders Act.
(iv) Appellant Dnyandeo is acquitted of the offence punishable under Section 324 of the Indian Penal Code.
(v) Bail bonds of accused stand cancelled.
(vi) R & P be sent back to the trial Court.
JUDGE JUDGE
wasnik
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:04:24 :::