apeal43.06.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.43 OF 2006
1] Pundlik son of Mohan Kharkar,
Aged about 20 years,
Occupation: Labourer.
2] Vitthal son of Mohan Kharkar,
Aged about 19 years,
Occupation: Education.
3] Deepak son of Madhukar Kharkar,
Aged about 17 years,
Occupation; Nil.
All Residents of Takali,
District Chandrapur. ....... APPELLANTS
...V E R S U S...
The State of Maharashtra, through
the Police Station Officer, Police Station,
Warora, Tahsil Warora,
District Chandrapur. ....... RESPONDENT
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Shri S.V. Sirpurkar, Advocate for Appellants.
Ms. T.H. Udeshi, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: 22 nd NOVEMBER, 2017. ORAL JUDGMENT 1] The appellants are assailing the judgment and order
dated 09.01.2006 in Sessions Case 112/1997 delivered by 1 st ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:46 ::: apeal43.06.J.odt 2 Ad-hoc Additional Sessions Judge, Chandrapur, by and under which, the appellants have been convicted for offence punishable under section 341 of the Indian Penal Code (IPC) and are sentenced to suffer rigorous imprisonment for one month, are convicted for offence punishable under section 323 of IPC and are sentenced to suffer rigorous imprisonment for six months and are further convicted for offence punishable under section 326 of IPC and are sentenced to undergo rigorous imprisonment for three years.
2] The appellants (hereinafter referred to as "the accused") who concededly were 20, 19 and 17 years of age as on the date of the incident faced prosecution along with one Pandurang Kharkar, who however, expired before the commencement of the trial.
3] The incident is blurred, and this Court is more than convinced, that the prosecution has not brought before the Court the true and correct factual scenario. Be that as it may, Criminal Revision Application 110/2006 is preferred by appellant 1 who ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:46 ::: apeal43.06.J.odt 3 seeks to assail the judgment of acquittal in Sessions Trial 15/2003 in which the injured Vitthal and Suresh, the star witnesses of the prosecution in Sessions Trial 112/1997 are arrayed as accused along with one Nirdosh, who incidentally is also a prosecution witness in the sessions trial from which the present appeal arises. 4] I have given my anxious consideration to the evidence on record, the submissions of the learned counsel for the accused Shri S.V. Sirpurkar and the learned Additional Public Prosecutor Ms. T.H. Udeshi and the reasoning of the learned Sessions Judge, and having done so, I am not persuaded to accept the submission of the learned A.P.P. that the prosecution has proved the offence punishable under section 326 of the IPC much less beyond reasonable doubt. However, for the reasons recorded infra, the judgment to the extent the appellants (hereinafter referred to as "the accused") are convicted for offence punishable under section 341 and 323 of IPC, is unexceptionable. I would, for the reasons recorded infra, set aside the conviction under section 326 of IPC and convict the accused for offence punishable under section 324 of IPC.
::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:47 ::: apeal43.06.J.odt 4 5] The incident, according to the prosecution, occurred on 09.04.1997 at 03:00 p.m. Vitthal Meshram (P.W.1) and his son Suresh (P.W.5) were transporting fodder in bullock cart from the field of Vitthal Pal. The bullock cart was passing through the field of one Vitthal Kangale when accused Pandurang, Pundlik, Vitthal and Deepak stopped the bullock cart. Accused Pandurang and Pundlik were armed with axes while accused Vitthal and accused Deepak were armed with sticks. Pandurang, the deceased accused, attempted to inflict an axe blow on Suresh and in an attempt to save Suresh the injured Vitthal Meshram (P.W.1) suffered injury to right hand thumb which had to be amputated. The accused assaulted Vitthal who suffered injury on left leg, hand, parietal region while Suresh sustained injuries to his hands and legs. The injured Vitthal Meshram lodged oral report Exh.32 while being treated at the Rural Hospital, Warora. The report was scribed by the Police Sub-Inspector and offence under sections 341, 323, 307 read with section 34 of IPC was registered. 6] The completion of investigation culminated in the submission of charge-sheet in the Court of Judicial Magistrate ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:47 ::: apeal43.06.J.odt 5 First Class, Warora who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge vide Exh.22 under sections 341, 323, 326, 307 read with section 34 of IPC, the accused abjured guilt and claimed to be tried in accordance with law. The defence, as is discernible from the trend and tenor of the cross-examination and the statement recorded under section 313 of the Criminal Procedure Code is of total denial and false implication.
7] The material witnesses are P.W.1 Vitthal Meshram and P.W.5 Suresh, the son of Vitthal Meshram. The evidence of the aforesaid two witnesses is corroborated by P.W.6 Sandip Chaudhari, who however, deposes generally that the accused assaulted Vitthal and no details or particulars of the assault have been elicited by the prosecution from the said witness. 8] Vitthal Meshram, concededly, suffered several injuries and at least one injury which resulted in amputation is grievous. P.W.1 Vitthal Meshram has deposed that the deceased accused Pandurang, Vitthal and Pundlik were armed with axes while the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:47 ::: apeal43.06.J.odt 6 other two who accosted the injured were armed with sticks. P.W.1 has attributed the injury resulting in amputation to an axe blow inflicted by the deceased accused Pandurang and the deposition is that Suresh was targeted and in an attempt to save Suresh, P.W.1 Vitthal Meshram suffered the injury. P.W.1 has attributed the injury on the leg to an axe blow inflicted by the accused Pundlik while the injury on the head is attributed to a stick blow inflicted by the accused Deepak. The injured witness is subjected to searching examination and while the defence has succeeded in creating some doubt about the genesis of the incident and has ensured that the possibility of free fight cannot be excluded, the cross-examination does not dent the version of the injured witness that he was assaulted in the manner deposed.
9] In so far as P.W.5 Suresh, is concerned, he states that the accused Pundlik gave a blow of stick on his hand and then deposes that since accused Deepak assaulted the bullocks by stick, the bullock cart driven by him moved on. It is apparent from the evidence of Suresh, that either he has not witnessed the assault thereafter or is suppressing the genesis and the nature of the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:47 ::: apeal43.06.J.odt 7 incident or altercation. Be it noted, that the medico legal certificate issued pursuant to the examination of Suresh reveals as many as three injuries. The medical evidence is not consistent with the deposition of Suresh who speaks of having suffered only one stick blow on hand inflicted by accused Pundlik. Suresh concededly took off in bullock cart leaving his father behind, at the mercy of the assailants. His deposition is that when he looked back, he saw the accused assaulting his father Vitthal. The evidence of Vitthal P.W.1 and P.W.5 Suresh is not consistent on which accused was yielding which weapon. P.W.1 Vitthal Meshram states that other than the deceased accused Pandurang both Vitthal and Pundlik were armed with axes while P.W.5 Suresh states that Pundlik was armed not with an axe but with a stick.
10] I have already noted that there cannot be a demur on the fact that injuries 5 and 6 and in the medico legal certificate Exh.61, is a grievous injury since the right had thumb was required to be amputated. However, the other injuries which are treated by the learned Sessions Judge as grievous are fractures of ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:47 ::: apeal43.06.J.odt 8 the left leg bones and the left arm bone. Concededly, the prosecution has not placed on record any radiological evidence to prove that the injured Vitthal suffered fracture. It is well settled that unless the fact of fracture can be proved by evidence, which is so glaring and obvious, that a finding can be recorded by the Court relying on the clinical examination of the patient, it would be extremely unsafe to hold that the prosecution has proved fracture in the absence of radiological evidence. The factual scenario, in which the Court may record a finding that the injured deem suffered fracture, even in the absence of radiological evidence, would be rare. Ordinarily, the prosecution must prove that the injured suffered grievous injury within the meaning of section 320 of the Indian Penal Code and if the injury is a fracture, the prosecution must ordinarily prove the fracture by adducing radiological evidence. Suffice it to refer to the following observations of this Court in the case of Faizan Ahmed Abdul Wahab Shah vs. The State of Maharashtra reported in 2014 ALL MR (Cri.) 4841.
20. It is seen that the injuries are not proved to be grievous hurt. There cannot be a presumption that the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:47 ::: apeal43.06.J.odt 9 grievous hurt was caused without formal proof of the fact of fracture. The fact of existence of fracture cannot be diagnosed and certified in absence of proof of x-ray plates, unless the fact of fractured bones is perceivable barely of perception by naked eyes and sheerly by clinical examination, its being vivid and palpable. Therefore, proof of x-ray plates was necessary particularly, the appellant had made an attempt to retract the admission of medical certificate/discharge summary.
It is in this view of the matter, that although I am not inclined to disturb the finding of the learned Sessions Judge that the injured Vitthal was assaulted by the accused, I am not persuaded to hold that offence punishable under section 326 of IPC is established. I would set aside the judgment and order impugned to that extent and instead hold that the prosecution has succeeded in establishing offence punishable under section 324 of IPC against the accused.
11] The learned Sessions Judge was alive to the mandate of section 6 of the Probation of Offenders Act, 1958. However, the learned Sessions Judge, and not without justification, held that since section 326 of IPC was punishable with life, he would not be ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:47 ::: apeal43.06.J.odt 10 in a position to extent the benefit of the Probation of Offenders Act to the accused. However, since I have scaled down the offence to section 324 of IPC, I am statutorily bound to extent the benefit of section 6 of the Probation of Offenders Act unless, of course, for judicially accepted and recognized reasons, such benefit cannot be extended. It would be apposite to refer to the following observations of the Apex Court in Musakhan and others vs. State of Maharashtra reported in AIR 1976 SC 2566 paragraph 7 is reproduced:
7. Taking A-4 we find that he was a young man of 20 years in 1968 when the occurrence took place and he is the brother of A-11 and A-12. The only evidence of his participation in the incident at the Bharat Lodge consists of P.W. 1 Prakash and P.W. 16 Vishwanath. So far as P.W. 16 is concerned his evidence has been rejected as he was not able to identify the appellant at a test identification parade. Further more, in view of the evidence of P.W. 16 extracted above, it would appear that he does not mention A-4 as one of the persons who had taken part in removing the cash box from the counter. In these circumstances, therefore, A-4 can only be convicted at the most under Sections 149/425, I.P.C. As this appellant does not appear to have taken any part either in the raid which was made at the Engineering College hostel or at the chawl he can only be responsible for the mischief which was caused at the Bharat Lodge. As his conviction under Sections 395/149 fails, the appellant can only be convicted under Sections 149/425, I.P.C. The other ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:47 ::: apeal43.06.J.odt 11 convictions and sentences recorded against him are set aside. As, however, the appellant was a boy of 20 years, his case clearly falls within the purview of the Probation of Offenders Act, 1958. The Probation of Offenders Act is a social legislation which is meant to reform juvenile offenders so as to prevent them from becoming hardened criminals by providing an educative and reformative treatment to them by the Government. Unfortunately, though the provisions of Section 6 of the Probation of Offenders Act are mandatory, the Courts do not appear to make wise use of these provisions which is necessary to protect our younger generation from becoming professional criminals and, therefore, a menace to the society. It may be that the appellant A-4 was not dealt with under the provisions of Section 6 of the Probation of Offenders Act because of the charge under Section 395, I.P.C. but that charge having failed, there is no impediment now in his being dealt with under the provisions of Section 6 of the Probation of Offenders Act. In these circumstances, therefore, we would set aside the convictions and sentences imposed on A-4 Musa Khan and direct that he be released on his entering into a bond with two sureties of Rs. 500/- each for a period of one year in order to keep the peace and be of good behavior. The appellant will report to the Probation Officer appointed within the jurisdiction of the place where he resides.
12] I see no impediment and none is brought to my notice by the learned A.P.P., which prevents the extension of the benefit of section 6 of the Probation of Offenders Act to the accused. 13] In this view of the matter, while I maintain the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:47 ::: apeal43.06.J.odt 12 conviction of the accused under section 341 and 323 of IPC and scale down the conviction from 326 of IPC read with section 324 of IPC, the appellants-accused need not be sentenced. Instead, I direct the accused be released on their entering into a bond to appear and receive sentence when called upon during the period of six months, and in the meanwhile to keep the peace and be of good behaviour.
14] The bail bond of the accused shall stand discharged.
15] The appeal is partly allowed.
JUDGE
NSN
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