1 apeal66.00
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 66 OF 2000
Keshao s/o Namdeo Burande,
Aged about 32 years,
Occupation - Cultivator,
R/o Wagholi, Tahsil - Hinganghat,
District - Wardha. .... APPELLANT
VERSUS
State of Maharashtra,
through P.S.O, Hinganghat. .... RESPONDENT
______________________________________________________________
Shri R.M. Patwardhan, Advocate for the appellant,
Shri P.S. Tembhare, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 30-10-2017
DATE OF PRONOUNCING THE JUDGMENT : 04-01-2018
JUDGMENT :
Appellant Keshao Burande, who alongwith Chandrabhan Burande and Ramu Burande faced trial for offence punishable under Section 307 read with Section 34 of the Indian Penal Code ("IPC" for short), is convicted for offence punishable under Section 326 of the IPC ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:44 ::: 2 apeal66.00 and is sentenced to suffer rigorous imprisonment for one year while the other accused Chandrabhan Burande and Ramu Burande are acquitted. The judgment and order of conviction is assailed by the appellant (hereinafter referred to as the "accused").
2. The gist of the prosecution case is that injured Baba Mangrulkar, who is a Civil Contractor, undertook to demolish- dismantle the dilapidated wall of the house of P.W.2 Baba Burande. P.W.1 started demolishing the wall on 11-6-1993, the accused objected, the objection to demolition of the wall was in the backdrop of a dispute as regards the ownership of the said wall, between the accused and P.W.2 Baba Burande. P.W.1 Baba Mangrulkar was getting down from the wall when accused Keshao assaulted him on the stomach with spear and accused Ramu and Chandrabhan assaulted him with sticks. P.W.1 Baba Mangrulkar was taken to the Primary Health Centre, Hinganghat, P.W.8 Dr. Dudhe informed the Police Station Officer, Hinganghat, Police Sub-Inspector Jadhav entered the said information in the station diary and recorded the statement of the injured P.W.1 at the Primary Health Centre, Hinganghat. On the basis of the said statement, offence under Section 307 read with Section 34 of the IPC was registered against the accused, the spot panchanama ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:44 ::: 3 apeal66.00 was recorded (Exhibit 27), statements of witnesses were recorded, the accused arrested and the spear recovered from accused Keshao and stick was recovered from accused Chandrabhan pursuant to the memorandum of admission under Section 27 of the Indian Evidence Act. Upon completion of the investigation, charge-sheet was submitted in the Court of Judicial Magistrate First Class, Hinganghat, who committed the case to the Sessions Court. The learned Sessions Judge framed charge under Section 307 read with Section 34 of the IPC. The accused pleaded not guilty and claimed to be tried. The defence is of false implication.
3. The ocular evidence is that of P.W.1 Baba Mangrulkar, P.W.2 Baba Burande and P.W.3 Pravin Sontakke, the injured and eyewitnesses respectively. P.W.1 Baba Mangrulkar states that he had climbed on the wall to dismantle the same, the accused protested and quarrelled with P.W.2 Baba Burande and when P.W.1 was climbing down from the wall, the accused Keshao assaulted him with spear on stomach, accused Ramu and Chandrabhan assaulted him with sticks. P.W.2 Baba Burande states that accused Keshao assaulted Baba Mangrulkar with spear on the stomach and accused Chandrabhan assaulted P.W.1 twice with stick.
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4 apeal66.00 P.W.3 Pravin Sontakke is an eyewitness who states that accused Keshao assaulted Baba Mangrulkar with spear on his stomach and accused Ramu and Chandrabhan assaulted P.W.1 with sticks.
4. The ocular evidence is substantially consistent on the core aspects of the incident. The tenor of the cross-examination reveals that the accused is not disputing his presence on the spot. The defence of the accused is that P.W.1 fell down from the wall as his foot slipped and suffered injuries due to the tins and plough kept in the compound of accused Keshao. Such a suggestion is given to every eyewitness and is categorically denied. This defence is also put to P.W.8 Dr. Gowardhan Dudhe, who medically examined the injured. P.W.8 has denied the suggestion.
5. P.W.1 Baba Mangrulkar is an injured witness. His testimony is entitled to be treated on a higher pedestal as compared to other witnesses. Nothing is brought on record to suggest that the injured P.W.1 would have any reason to falsely implicate the accused. An injured witness is ordinarily not likely to exculpate the guilty and to inculpate the innocent. The ocular evidence of P.W.1 Baba Mangrulkar, P.W.2 Baba Burande and P.W.3 Pravin Sontakke is reliable and ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:44 ::: 5 apeal66.00 confidence inspiring. The ocular evidence is corroborated by the medical evidence. In the teeth of the evidence on record, I have no hesitation in recording a finding that the prosecution has proved that accused Keshao assaulted the injured with spear.
6. Shri R.M. Patwardhan, learned Counsel for the accused states that since the prosecution has not proved that P.W.1 injured suffered grievous injury, conviction under Section 326 of the Indian Penal Code deserves to be set aside. P.W.8 Dr. Dudhe has deposed that he noticed the following injury :
Incised wound on abdomen on left side 4" above the waist line. Size 1 ½ x 1 ½" deep omentum came out of the wound. Shape elliptical.
P.W.8 Dr. Dudhe is silent on the nature and extent of the injury. Whether the injury is grievous or life endangering or likely to cause death in the ordinary course is not testified to. P.W.8 states that he temporarily stitched the wound. Unfortunately, the prosecution has failed to bring on record, for reasons only known to the prosecution, the treatment which P.W.1 injured was required to undergo, if at all, after P.W.8 Dr. Dudhe temporarily stitched the wound. The injured ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:44 ::: 6 apeal66.00 P.W.1 does state that he was referred to Sevagram Hospital and admitted as indoor patient for a month. However, other than this bare statement, no documentary evidence is brought before the Court to prove that P.W.1 was admitted in the said hospital for a month and that the injury suffered was grievous or life endangering. The prosecution could have and ought to have produced the bed-ticket and other medical papers which would have shed light on the physical and medical condition of P.W.1 and the treatment received.
7. It would be unsafe to convict the accused for offence punishable under Section 326 of the IPC. In view of the failure of the prosecution to bring on record medical evidence, which undoubtedly could have been obtained and produced, the accused is liable to be convicted for offence punishable under Section 324 of the IPC.
8. The learned Sessions Judge was pleased to sentence the accused to rigorous imprisonment for one year after convicting the accused under Section 326 of the IPC. I have scaled down the conviction to Section 324 of the IPC. The incident occurred in 1993, more than twenty-five years ago. The accused has already undergone one month and seven days rigorous imprisonment post conviction. I ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:44 ::: 7 apeal66.00 deem it appropriate to sentence the accused to imprisonment already undergone. The bail bond of the accused shall stand discharged.
The appeal is partly allowed.
JUDGE adgokar ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:44 :::