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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.160 OF 2002
Gajanan Waman Ganjare,
Aged about 23 years,
Resident of Jitapur, Police Station
Mana, District Akola. .... APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer,
Mana, District Akola. .... RESPONDENT
______________________________________________________________
Shri A.R. Fule, Advocate for the appellant,
Shri N.B. Jawade, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 01-09-2017
DATE OF PRONOUNCING THE JUDGMENT : 29-11-2017
JUDGMENT :
The appellant is aggrieved by the judgment and order dated 11-1-2002 passed by the learned 4th Additional Sessions Judge, Akola in Sessions Trial 112/1998, by and under which the appellant (hereinafter referred to as the "accused") is convicted for offence punishable under Section 326 of the Indian Penal Code and is ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:47 ::: 2 apeal160.02 sentenced to suffer rigorous imprisonment for period of four years and to payment of fine of Rs.100/-, and is further convicted for offence punishable under Section 163 of the Maharashtra Village Panchayats Act and is sentenced to payment of fine of Rs.100/- and is further convicted for offence punishable under Section 164 of the Maharashtra Village Panchayats Act and is sentenced to payment of fine of Rs.100/-.
2. Heard Shri A.R. Fule, learned Advocate for the appellant and Shri N.B. Jawade, learned Additional Public Prosecutor for the respondent.
3. Shri A.R. Fule, learned Advocate for the accused submits that the judgment impugned is against the weight of the evidence on record and the prosecution has failed to establish offence under Section 326 of the Indian Penal Code, muchless beyond reasonable doubt. The alternate submission is, that even if it is assumed that the accused assaulted the injured complainant, the offence proved will be under Section 324 of the Indian Penal Code and not under Section 326 of the Indian Penal Code, as is held by the learned Sessions Judge. ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:47 :::
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4. Per contra, Shri N.B. Jawade, learned Additional Public Prosecutor for the respondent submits that the judgment impugned does not suffer from any infirmity and in the teeth of the nature of assault, the weapon used and the injury suffered the offence under Section 326 of the Indian Penal Code is conclusively established.
5. The incident took place at 4-00 p.m. on 21-4-1998 at village Jitapur, Tahsil-Murtizapur, District - Akola. The informant Gajanan Khedkar, who lodged the report, is examined as P.W.1. He has deposed that the incident took place on 21-4-1998. The accused, while passing by the house of the informant, alongwith his cattle, declared that he was proceeding to the field of the informant to graze cattle. The informant P.W.1 accompanied by friend Pravin Khedkar went to his field between 3-00 to 4-00 p.m., found the accused grazing his cattle in the field, which had cotton crop standing. P.W.1 starting driving the cattle out from the field to take them to the cattle pound. The accused obstructed, rushed towards P.W.1 with an axe, an exchange of words took place between P.W.1 and the accused and the accused attempted to inflict an axe on the head of P.W.1. P.W.1 further states that he avoided the blow and in the process fell in a pit. The accused thereafter inflicted an axe blow on the chest of P.W.1. ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:47 :::
4 apeal160.02 Pravin Khedkar tried to stop the bleeding by covering the wound with handkerchief and dupatta. P.W.1 proves Exhibit 28 which is the oral report and Exhibit 29 which is printed first information report. P.W.1 further states that he was admitted in the General Hospital, Akola for 16 to 17 days. In the cross-examination, the suggestion given to witness is that he was jealous of the accused and on the date of the incident P.W.1 and Pravin attempted to assault the accused with sticks. It is suggested that P.W.1 assaulted the accused with stick and the accused received injuries on the face in the scuffle. While is it not denied by P.W.1 that a scuffle did take place, the suggestion that P.W.1 fell down in the pit and received injury due to iron blade used for removing the grass, is denied. The omissions which are brought out in the cross-examination as regards the date and the statement that the witness managed to avoid the first blow of the axe, in my opinion, do not dent the credibility of the testimony.
6. Pravin Khedkar, who accompanied the complainant to the field, is examined as P.W.2. He has deposed that he and the complainant went to the field of the complainant, found that the cattle of the accused were grazing in the field of the complainant and when the complainant started driving the cattle towards the cattle pound, the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:47 ::: 5 apeal160.02 accused obstructed, a scuffle ensued, the complainant fell down and the accused attempted to inflict an axe blow on the head of the complainant Gajanan which was warded of by the complainant. The complainant suffered injury due to the axe blow inflicted by the accused, is the deposition. P.W.2 then states that he attempted to stop the flow of blood by covering the injury with handkerchief and dupatta. Nothing substantial is brought out in the cross-examination of P.W.2 to assist the defence.
7. P.W.3 Ramesh Bole has proved the spot panchanama (Exhibit 32). Dilshad Ahmad, the panch witness to the seizure of the clothes of the accused is examined as P.W.4 and he has proved the seizure panchanama Exhibit 34. Sahadeo Wankhade, who is examined as P.W.5 has proved the first information report and has deposed that offences under Sections 163, 164 and 324 of the Indian Penal Code were registered against the accused. Prabhakar Raut, who is one of the investigating officers, is examined as P.W.6. Namdeo Manwar who is examined as P.W.7 has conducted further investigation and has filed the charge-sheet. It is brought on record in the cross-examination that during the scuffle, the accused received minor injury on lip and was medically examined. P.W.7 admits that the medical certificate of the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:47 ::: 6 apeal160.02 accused was obtained. He, however, denied the suggestion that the certificate is not produced on record since the accused received major injuries. He further denies the suggestion that the accused lodged report prior to the complainant. He candidly admits that he is not aware as to how far many days was the complainant admitted in the General Hospital, Akola and what was the treatment given to the complainant. The witness has not conducted any investigation as regards the medical treatment nor has he obtained the medical certificate or case papers which may have thrown light on the nature of the injury suffered by the complainant.
8. Dr. Kishor Sharma, who is examined as P.W.8 has deposed that having examined the injured complainant, he noticed incised wound of size 4 ½" x 1 ½" x bone-deep over mid sternum. He states that on inspiration air was oozing through wound and that the said term means that there was injury to the pleura and surface of lung. He has proved the medical certificate Exhibit 46.
9. The presence of the accused on the spot is not disputed. Indeed, as is apparent from the trend of the cross-examination and the statement under Section 313 of the Criminal Procedure Code of the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:47 ::: 7 apeal160.02 accused, the defence is that the complainant and P.W.2 Pravin Khedkar attempted to assault the accused and in the scuffle the injured complainant fell in a pit and sustained injuries due to iron blade used for removing grass.
However, the defence is not probablized even on the touchstone of preponderance of probabilities. The spot panchanama is inconsistent with the defence. The doctor, P.W.8 states that if a person falls on a sharp edged iron blade attached to agricultural implement, injuries other than those mentioned in the medical certificate Exhibit 46 will be caused. This statement is in response to a suggestion given by the defence that the injuries mentioned in the medical certificate may be caused if the person fell on the sharp edged iron blade attached to the agricultural implement, which suggestion is not denied by the doctor, but is followed with the caveat that other injuries will be caused.
The conduct of the accused, of running away, is also not consistent with the defence version that the injured fell down in the pit and suffered injuries due to the iron blade of the ploughing implement.
10. I have given my anxious consideration to the evidence of the injured complainant and the eyewitness P.W.2, and having done so, ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:47 ::: 8 apeal160.02 I have not noticed any substantial inconsistency or discrepancy inter se nor have I come across any significant omission partaking the nature of contradiction in the deposition. The prosecution has successfully established, that it was the accused who injured the complainant by inflicting an axe blow.
11. The finding of the learned Sessions Judge that the accused is guilty of offence punishable under Section 326 of the Indian Penal Code is also unexceptionable. It is true, as contended by the learned Advocate for the accused, that the investigating officer has not taken any effort to ascertain the nature of the treatment given to the injured in the General Hospital, Akola nor has the medical certificate or the case papers from the said hospital produced on record. The investigation, is certainly shoddy. However, the evidence of P.W.8 Dr. Sharma would reveal that the injury suffered was life endangering. The learned Sessions Judge, while acquitting the accused of offence punishable under Section 307 of the Indian Penal Code, has not committed any error in convicting the accused under Section 326 of the Indian Penal Code.
12. The incident took place more than 19 years ago when the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:47 ::: 9 apeal160.02 accused was edged 22 years or thereabove. In the totality of the circumstances, I deem it appropriate to reduce the sentence to two years of rigorous imprisonment while maintaining the fine.
13. The conviction of the accused under Section 326 of the Indian Penal Code, Sections 163 and 164 of the Maharashtra Village Panchayats Act is maintained, however, for offence punishable under Section 326 of the Indian Penal Code, the accused is sentenced to undergo rigorous imprisonment for two years. The accused be taken in custody forthwith to serve the sentence.
14. With this modification in the sentence awarded, the appeal is partly allowed and disposed of.
JUDGE adgokar ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:47 :::