Prem S/O Mehu Rane vs The State Of Maharashtra Through ...
2005 Latest Caselaw 210 Bom

JUDGMENT

S.T. Kharche, J.

Page 1525

1. This criminal appeal takes an exception to the judgment and order of conviction dated 23/4/1996 passed by the learned Additional Sessions Judge in Sessions Trial No. 105/1991, whereby the appellant-accused has been convicted for the offence punishable under Section 325 of the Indian Penal Code and he was sentenced to suffer rigorous imprisonment for one year and to pay Fine of Rs. 500/-, in default to undergo simple imprisonment for five months. However, the appellant-accused has been acquitted for the offence punishable under Section 307 of the Indian Penal Code against which the State did not prefer any appeal.

2. Brief facts are required to be stated as under.:

(A) The appellant-accused and the victim Prabhu Jego Ther (PW 4) are resident of Dagotola. Jego Gondi Ther (PW 3) is father whereas Tejram Page 1526 Bhagwat Hukare (PW 5) is maternal uncle of the victim. The incident occurred on 12/4/1991 at about 1.00 p.m. in the agricultural land owned by the parties and their lands are situated adjoining. The canal water was being supplied to the field of the accused and victim Prabhu found that the land of the accused was already irrigated and, therefore, he requested the accused to allow him to divert water course for the irrigation to his paddy crop. The accused told that after 4.00 p.m. the water may be available to him for irrigation. Therefore, Prabhu had again came to his land at about 4.00 p.m. along with Maniram and others. His sharer Tejram was also present in the land. That time the accused was present in his own field. When the victim Prabhu started diverting the water channel, he saw that the accused was suddenly rushing towards him with a stick. The victim told the accused that since he had already permitted him to divert the water course, why he should run after him. The accused without replying anything, suddenly delivered two consecutive blows of Ubhari (wooden stick) on his head while he was in leaning position. Victim Prabhu sustained bleeding injury and he fell down on the ground. His father Jego and his maternal uncle Tejram rushed on the spot, at the same time the accused had ran away.

(B) Victim Prabhu was taken to Dr. Hemraj Nimje (PW 7) at Primary Health Centre, Satgaon who gave medical treatment to him. Dr. Nimje found as many as three injuries and there was a fracture of the skull. He opined that all the injuries mentioned in injury certificate (Exh.34) are the result one injury.

(C) Jego (PW 3) who is the father of the victim had gone to Police Station, Salekasa and he lodged the first information report on the same day at about 2245 hrs. Police Sub Inspector R.D. Murkute (PW 6) registered the offence punishable under Section 307 of the Indian Penal Code against the accused and took up the investigation of this crime. He seized clothes of the accused as well as stick in consequence of the information furnished by the accused vide memorandum panchanama (Exh.21). The report of Chemical Analyser was received in due course of time which would indicate that the clothes of the victim were soiled with blood of group 'O'. On completion of the investigation, the charge sheet against the accused was filed.

3. After committal of the case to the Court of Sessions, the learned Additional Sessions Judge framed and explained the charge to the accused to which he pleaded not guilty and, therefore, the trial proceeded with. In order to bring home the guilt at the doors of the accused, the prosecution examined as many as seven witnesses and relied on the direct as well as circumstantial evidence including that of the eye witnesses namely; victim - Prabhu Jego Ther (PW 4), his father Jego Gondi Ther (PW 3) and his maternal uncle Tejram Bhagwat Hukare (PW 5). As against this the defence that has been put forth by the accused is that of total denial. In the cross examination of Jego(PW 3), the defence of alibi has been put forth, but the accused did not examine any defence witness. The learned Additional Sessions Judge, on appreciation of the evidence, recorded findings that the prosecution has proved beyond doubt that the accused had caused head injury to the victim Page 1527 Prabhu with intention and knowledge that it would result in to his death. However, having regard to the nature of the injuries and the medical evidence that all the three injuries could be possible by a single blow, the learned Additional Sessions Judge reached to the finding that the prosecution has established that the complicity of the accused in committing the crime would be covered by Section 325 of the Indian Penal Code. Consistent with these findings, he convicted the accused and sentenced him as mentioned above.

4. The learned Counsel for the appellant-accused contended that there is no sufficient and reliable evidence of the independent witnesses that the accused has caused injury to the victim Prabhu and in absence of the proof of motive, the defence is probable that the accused has been implicated falsely on suspicion. The eye witnesses are interested witnesses and their testimony has not been corroborated in material particulars by any evidence even by the medical evidence. He contended that though the charge has been framed by the learned Additional Sessions Judge under Section 307 IPC, the accused could not have been convicted under Section 325 IPC without framing alternative charge. In support of these submissions, he relied on the decision of this Court in the case of Samadhan Baburao Khakare and Anr. v. State of Maharashtra - 1995 (2) Mah. L.J. 464.

5. He contended that the accused is a simple villager and cultivator of the age of 34 years having no criminal record and, therefore, he may kindly be released on execution of bond of good behaviour under Section 360 of the Cri. Procedure Code. In support of this submission, he relied on the decision of the Supreme Court in the case of Ved Prakash v. State of Harayana - .

6. The learned Additional Public Prosecutor supports the impugned judgment and order of conviction and submitted that there are as many as three eye witnesses to the incident dated 12/4/81. He contended that Prabhu (PW 4) is the son of Jego (PW 3) and nephew of Tejram (PW 5). All these three witnesses were present in their field for the purpose of irrigating the field as the accused had permitted Prabhu to divert the water course to his field on that day at about 4.00 p.m. and accordingly the victim when tried to divert the water course, the accused suddenly rushed on him with a Ubhari in his hands and delivered a blow on his head causing skull fracture,.

7. He contended that the evidence of three witnesses is corroborated in material particulars by the medical evidence of Dr. Nimje (PW 7) who found three injuries on the person of the victim and opined that there was a fracture of the skull and the injury No. 2 would have been proved to be fatal if no treatment was given. He contended that the medical evidence has not been challenged by the accused and the doctor has reiterated in the cross examination that the injuries could be caused by stick.

8. He contended that there is no merit in the defence of alibi that has been put forth by the accused. By suggestion hurled in the cross examination of Jego (PW 3) who admitted that on that day he along with Page 1528 the accused was present in some marriage. He contended that the learned Additional Sessions Judge has appreciated the evidence adduced by the prosecution in a proper perspective and has rightly recorded the finding that the prosecution has established that the accused has committed the offence punishable under Section 325 IPC and no interference into the same is warranted.

9. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not in dispute that the victim Prabhu (PW 4), his father Jego (PW 3) and his uncle Tejram (PW 5) owns agricultural land and the accused also owns agricultural land which is adjoining. The evidence of Prabhu would reveal that there was a supply of water from the reserviour and he had agreed that for two days the accused will irrigate his land and thereafter he will take his turn for irrigating his paddy land. The paddy land of the accused is situated towards east of his paddy land. At about 1.00 p.m. he accompanied with the accused to his paddy field and saw that the full paddy crop was irrigated. Therefore, he asked the accused that now his land is already been irrigated and, therefore, he will divert the water course towards his land for the purpose of irrigation. The accused had permitted him by saying that he may irrigate his land after 4.00 p.m. Therefore, the victim was engaged in raising embankment on the water course for diverting the water to his land at about 4.00 p.m. The accused arrived there with a stick in his hand to whom the victim asked as to why he was coming in that way. The accused suddenly delivered blow of stick on his head consequently his clothes soiled with blood and he became unconscious.

10. In the cross examination of the victim Prabhu, nothing favourable to the accused has been brought on record. The victim has reiterated in the cross examination that in the afternoon he had a cordial talk with the accused who was coming towards him and the victim never felt that the accused would beat him and at the most he will prevail upon him for taking water. The victim further stated that there is a distributory in the field of Tulshiram Ther and that two water courses comes from that distributory, one goes to the south and other to the east. He denied that due to closing the water course in the field of the accused, the water which was flowing towards the field of Keshoram, Baburam, Maniram was obstructed.

11. The evidence of Prabhu has been corroborated in material particulars by the medical evidence of Dr. Hemraj Nimje. He has deposed that he had examined the injured victim Prabhu on 12/2/91 at about 6.45 p.m. at Primary Health Centre, Satgaon and found the following injuries:

(1) Bleeding from nose present. There is no any obliques injury on nose externally. Hence, patient is referred to the ENT Specialist for further examination and treatment.

(2) Contusion on left parietal region of head. It is tender, size 8 cms. in length and 6 cms. width with appreciated raised surface.

(3) Contusion on left upper eye lid with bluish discoloration. Total area of the upper eye lid is caused by the injury.

Page 1529

12. Dr. Hemraj Nimje opined that there was a fracture of skull and this information was based on the report of radiologist which show that the victim had sustained the fracture of the skull. In the cross examination Dr. Nimje admitted that all the injuries mentioned in the medical certificate (Exh.34) are the result of one injury i.e. injury No. 2 and the injury No. 2 would have been proved to be fatal if no treatment is given. Thus, it would reveal that there is nothing on record from which it could be said that the medical evidence is in any way at variance with the ocular testimony of the eye witnesses.

13. Jego (PW 3) is the father of the victim and his evidence would reveal that the incident occurred in the season of Summer paddy crop. He himself was irrigating his paddy crop by means of canal water. He himself, his son and his sharer Tejram were present in the land. After the land of the accused was irrigated, his son Prabhu went up to the canal and the water was diverted towards his land. He did not know whether the accused was. He came suddenly with a stick and hit Prabhu on his face. This witness Jego rushed on the spot, Prabhu had sustained bleeding injury on his skull and the blood was oozing from his mouth and nose, the accused ran away, Prabhu was shifted firstly in the village and thereafter to Outpost Sakaritola at Hospital and he lodged the first information report (Exh.27).

14. The evidence of Jego has been corroborated in material particulars by the contents of the first information report which has been lodged at Police Station, Salekasa on 12/4/91 at about 2245 hrs. The distance between Dagotola and Police Station, Salekasa is about 10 Kms. There is nothing or record from which it can be said that there was delay in lodging the first information report. The evidence of Jego and Prabhu is quite consistent with the contents of the first information report and lodging of the F.I.R. promptly would show that there was no scope for concoction, embellishments or embroideries.

15. Likewise Prabhu, Tejram (PW 5) also has stated that he had cultivated the land of Prabhu as a crop sharer and there was a rubby crop. Prabhu was diverting water course. The accused was standing on water course, he suddenly came and hit Prabhu by stick on left temporal region due to which Prabhu fell down. He saw only one stroke given by the accused. He shouted at the accused from distance and accused ran away and disappeared. Prabhu was unable to speak and he had sustained bleeding injury. Nothing has been brought on record to show that the accused has been falsely implicated by this prosecution witness.

16. No doubt true that witness Jego (PW 3) admitted in the cross examination in para 3 that there was a marriage at the house of one Laxman Raut and he had attended that marriage along with the accused. From this material brought on record, it is not possible to draw a conclusion that the defence of alibi put forth by the accused has been established. What is significant to note is that while recording the statement of the accused under Section 313 Cri.P.C.,Page 1530 the accused did not raise the defence of alibi and, therefore, the learned Additional Sessions Judge rightly negatived the defence that has been put forth by the accused.

17. On re-appreciation of the evidence, this Court find that the motive attributed to the accused was that the water course was being diverted into the land of the victim and, therefore, on the spur of moment, the accused had arrived with stick with an intention to cause some injury to him and succeeded in delivering blow of the stick on his head and the medical evidence clearly reveal that the victim had sustained fracture of the skull. This is a case wherein only a single blow of the stick had caused the fracture to the skull and in absence of any evidence to show that the injury was sufficient in the ordinary course of nature to cause death, the learned Additional Sessions Judge was perfectly justified in holding that the offence would be squarely covered by Section 325 of the Indian Penal Code.

18. It is also true that the charge under Section 307 IPC was framed but the accused has been convicted for the offence punishable under Section 325 IPC. The decision of this Court in the case of Samadhan Baburao Khakare and Anr. v. State of Maharashtra (cited supra) is not applicable to the facts and circumstances of the present case. Moreover, the learned Counsel for the accused rightly did not dispute the law position that if the commission of minor offence has been proved, though charge is not framed, the conviction could be recorded which would not be illegal in view of Sub-section (2) of Section 221 of the Code of Criminal Procedure because in this case no prejudice is caused to the accused in putting up his defence.

19. The last but not the least contention of the learned Counsel for the accused is that the offence is said to have occurred on 12/4/91 and there is no criminal record at the credit of the accused. He contended that in such circumstances, the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958 may kindly be granted.

20. In Ved Prakash v. State of Harayana - , the Hon'ble Supreme Court has observed as under:

"In the present case, the offender is a young person and his antecedents have no blemish. His life is not unsettled or restless and the report indicates that he is an agriculturist, pursuing a peaceful vocation. His parents are alive and he has a wife and children to maintain. These are establishing factors in life. A long period of litigation and the little period of imprisonment suffered, will surely serve as a deterrent. We are mindful of the fact that a fire-arm has been used by the appellant and we cannot sleep over the gravity of the offence. Nevertheless, the report of the Probation Officer states that the appellant is not given to any bad habits or stresses of poverty. A land dispute led to the crime and that does not survive any longer. The Probation Officer recommends that an opportunity be given to the appellant to improve himself and bring up his family by honest labour as an agriculturist so that the interests of social defence may be secured. We are inclined to Page 1531 agree that in this case the appellant may be given the benefit of the Probation of Offenders Act. We are satisfied that the offender has a fixed place of abode and regular occupation. We are inclined also to rely on the Probation Officer's report which supports the direction for release on probation. We, therefore, direct that the appellant be released under Section 4(1) of the Probation of Offenders Act, 1958, and instead of sentencing him, direct that he be released on his entering into a bond before the trial Court with two sureties, one of whom shall be his father, to appear and receive sentence when called upon during the period of three years from the dare of release and in the meantime to keep the peace and be of good behaviour."

21. In the aforementioned case the age of the accused was less than 21 years. Such is not the present case. In the present case the age of the accused at the time of the commission of the offence was 34 years. The accused did not claim the benefit of the Probation of Offenders Act at the trial stage. Here at the appellate stage, he claims benefit of Section 360 of Cri.P.C. But, this Court is not inclined to grant the benefit of these provisions to him especially when the medical evidence clearly indicate that there was a fracture of the skull and the injury No. 2 would have proved fatal in case no immediate medical treatment could have been provided. The Medical Officer, in the cross examination has stated like this; "...all three injuries mentioned in medical certificate (Exh.34) are result of one injury i.e. injury No. 2. The injury No. 2 would have been proved to be fatal if no treatment is given. There was no other injury accompanied with this injury."

22. This material brought on record in the cross examination would clearly reveal that the fracture of skull was caused while delivering the stick blow which must have been used in a forceful manner. Having regard to the nature of the injuries, the injuries have been caused by a single blow on the vital part of the body and the manner in which the injuries have been caused, the learned Additional Sessions Judge was perfectly justified in coming to the conclusion that the offence would be squarely covered by Section 325 of the Indian Penal Code. Therefore, on re-appreciation of the evidence, no case has been made out for interference and in the result, the appeal is dismissed. The appellant-accused shall surrender to his bail and shall appear before the learned Additional Sessions Judge on or before 07th March, 2005 and upon his appearance, the learned Additional Sessions Judge shall commit him to the prison for undergoing the sentence. In case, the appellant-accused fails to surrender on or before the due date, the learned Additional Sessions Judge shall secure his presence through the Superintendent of Police and then shall commit him to the prison for undergoing the sentence."