Bombay High Court
Balhim vs The State Of Maharashtra on 1 November, 2012
Bench: T.V. Nalawade
Cri. Revn. Appln. No. 82/1996
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 82 OF 1996
1. Balhim s/o. Ramrao Chitte,
Age 30 years, Occu. Agril.,
R/o. Jakkekurwadi, Tq. Omerga,
Dist. Osmanabad.
2. Balaji s/o. Govind Chitte,
Age 20 years, Occu. Nil.,
R/o. Jakkekurwadi, Tq. Omerga,
Dist. Osmanabad. ....Petitioners.
Versus
1. The State of Maharashtra
2. Waman s/o. Dnyanoba Patil,
Age 27 years, Occu. Agril.,
R/o. Jakkekurwadi, Tq. Omerga,
Dist. Osmanabad. ....Respondents.
Mr. N.B. Khandare h/f. Mr. M.P. Tripathi, Advocate for petitioner.
Mr. N.B. Patil, APP for State.
Mr. V.S. Tanwade, advocate for respondent No. 2. (appointed).
CORAM : T. V. NALAWADE, J.
Reserved on : 18th October 2012.
Declared on : 1st November 2012.
JUDGMENT :
1. The proceeding is filed against the judgment and
Cri. Revn. Appln. No. 82/1996
order of Criminal Appeal No. 5/1993, which was pending in the
Court of Additional Sessions Judge, Osmanabad. In the appeal, the
judgment and order of Judicial Magistrate, First Class, Omerga,
delivered in R.C.C. No. 66/1989 was challenged. The J.M.F.C. has
sentenced the petitioners for offences punishable under section
326, 324 and 34 of Indian Penal Code and this decision is
confirmed by the Sessions Court. Both the sides are heard. The
advocate of the original complainant was allowed to assist APP.
This Court has perused the original record.
2. In short, the facts leading to the institution of the
proceeding can be stated as follows :-
There is a dispute between the side of complainant
and the side of accused over some portion of agricultural lands
bearing Survey Nos. 272 and 273 situated at Jakekurwadi. The
incident took place on the night between 27.12.1988 and
28.12.1988. It is the case of complainant Waman that on that
night, he and his three uncles like Tukaram, Sain and Vyankat
were sleeping in a shed from this disputed field. It is the case of
the prosecution that at about 00.30 hours on that night, the
petitioners (original accused Nos. 4 and 10) and other accused
Cri. Revn. Appln. No. 82/1996
entered this shed and assaulted the complainant and his three
uncles by using weapons like sticks, iron bars etc. There are
specific allegations against the petitioner Balbhim that he gave
blow of iron bar on the head of the complainant and petitioner
Balaji gave stick blow on the back of the complainant. There are
specific allegations that injured Sain and other two uncles of the
complainant were assaulted by Balaji and other accused. Sain
sustained fracture injury in the incident. Other three persons
sustained simple injuries.
3. On the basis of report given by Waman, crime at C.R.
No. 168/1988 was registered in Omerga Police Station for offences
punishable under sections 147, 148, 324, 326 and 149 of I.P.C.
The four injured witnesses were referred to Government Hospital
and M.L.Cs. were collected by police. Spot panchanama was
prepared and stick having blood stains was taken over from the
spot. All the accused came to be arrested.
4. In respect of the same incident, report was given by
the other side against the aforesaid four injured persons. On the
basis of that report, investigation was made and counter case,
R.C.C. No. 65/1989 was filed by police against these four injured
Cri. Revn. Appln. No. 82/1996
for offences punishable under section 147, 148, 324 and 149 of
I.P.C. Both the cases were decided by the same Magistrate. The
J.M.F.C. gave conviction and sentence to persons from both the
sides. Criminal Appeal No. 7/1993 was filed by other side. Criminal
Appeal Nos. 7/1993 and 5/1993 are decided by Sessions Court by
common judgment. Criminal Appeal No. 7/1993 is allowed and all
the persons from the other side are acquitted by Sessions Court.
5.
There was the charge against the appellants for
voluntarily causing simple injuries to witnesses like Waman, Sain,
Vyankat and Tukaram by using dangerous weapons and there was
the charge for voluntarily causing grievous injury by using
dangerous weapon like iron bar and stick to Sain. Thus, the charge
was for the offences punishable under section 324, 326 r/w. 149
of I.P.C. The petitioners are convicted and sentenced by using
section 34 of I.P.C. when there was no charge for offence by using
section 34 of I.P.C. However, there is no dispute over the
proposition that both are principles of joint liability and so section
34 can be used. The remaining accused are acquitted.
6. The present proceeding is filed under section 397 read
with section 401 of Cr.P.C. The Court in revision is expected to
Cri. Revn. Appln. No. 82/1996
consider the material only to satisfy itself about correctness,
legality and propriety of the findings, sentence or order. This Court
may also consider irregularity, if any, found in the proceeding of
inferior Court. Though section 401 of Cr.P.C. shows that the
powers of the Appellate Court under section 386 of Cr.P.C. are
available to revisional Court also, these powers are expected to be
used sparingly and revisional Court cannot convert itself into
regular Court of appeal. In the case reported as (2001) 10 SCC
419 [T.N. Dhakkal Vs. James Basnett and Anr.], it is observed
by the Apex Court that the revisional power has to be used to
correct miscarriage of justice and justification of the exercise of
revisional power would depend upon facts and circumstances of
each particular case.
7. In the cases reported as (1963) 3 SCR 412 [K.C.
Reddy Vs. State of Andhra Pradesh], AIR 1970 SC 272
[Khetra Basi Samal and Anr. Vs. The State of Orissa etc.]
and AIR 1973 SC 2145 [Akalu Ahir and Ors. Vs. Ramdeo
Ram], the Apex Court has laid down that the revisional power can
be exercised, if the evidence which is inadmissible is considered
by the Trial Court and if some material evidence is overlooked.
Similarly, if there is irregularity of procedure, which caused
Cri. Revn. Appln. No. 82/1996
prejudice to the accused, revisional power can be exercised. The
propositions made by the Apex Court show that the power of High
Court is not confined to the questions of law alone and it can deal
with questions of facts, but as a rule of practice, High Court is not
expected to interfere with the findings of fact. However, when it is
brought to the notice of the High Court that there is
misconception about the procedure due to which some evidence
is wrongly used against accused and that has caused miscarriage
of justice, the High Court can interfere in the decision of the Lower
Court. Thus, when there is such contention, the High Court can go
into the facts to ascertain as to whether there is force in this
contention and whether the contentions are true. The parameters
for the use of power under section 401 in revision filed against
acquittal by private party and in the revision filed by accused
against conviction are different.
8. The Additional Sessions Judge has not only decided
two appeals filed in two separate criminal cases together, but the
judgment shows that the Additional Sessions Judge has compared
the evidence of two cases to find out as to which side was
aggressor and as to which side committed offence. In view of this
circumstance, the advocate of the petitioners submitted that the
Cri. Revn. Appln. No. 82/1996
prejudice is certainly caused to the accused and it needs to be
inferred that there has been miscarriage of justice.
9. Reliance was placed by the advocate of the
petitioners on the case reported as AIR 2001 SC 826 [Sudhir
and Ors. Vs. State of Madh. Pra.]. The Apex Court has laid
down that when there are two cross cases, counter cases, it is
desirable that the same Judge decides both the cases. Following
reasons are given for such necessity.
(i) To avoid conflicting decisions,
(ii) It staves off the danger of an accused being
convicted before his whole case is before the Court
and
(iii) In reality the case and counter case are, to all
intents and purposes, different or conflicting versions
of one incident.
There cannot be any dispute about this proposition and the same
J.M.F.C. decided these two cases.
10. In the case reported as 1975 Cri.L.J. 236 [Mitthulal
and Anr. Vs. State of Madhya Pradesh], it is made clear that
each criminal case must be decided on the evidence recorded in it
Cri. Revn. Appln. No. 82/1996
and evidence recorded in another case though it may be cross-
case cannot be taken into account in arriving at the decision. It
can be said that the Sessions Judge has committed an error in
reading the evidence of counter case in the appeal filed by the
present petitioners. Thus, there is certainly irregularity in the
procedure adopted by the Sessions Court.
11.
The provisions of section 462 to 465 of Cr.P.C. show
that when any irregularity is noticed by the Appellate Court, the
Appellate Court is expected to consider these provisions and then
decide the proceeding before it. In section 465 of Cr.P.C., the
general power of Appellate Court is considered, which is subject to
the previous provisions of Cr.P.C. from the same Chapter. This
provision shows that if, in the opinion of the Court, a failure of
justice has been occasioned, then the Court is expected to
interfere in the matter. In order to ascertain, whether due to such
irregularity, prejudice has been caused to the defence and due to
that there has been failure of justice, the Court is expected to look
into the substance and not the technicality. These sections cover
errors of procedures arising out of inadvertence. Thus, the Trial
Court is expected to ascertain whether 'infact' failure of justice
has been occasioned by such irregularity. In view of the facts and
Cri. Revn. Appln. No. 82/1996
circumstances of the present case and the aforesaid position of
law, this Court holds that it needs to be ascertained as to whether
the Sessions Court has considered the evidence available as
against the petitioners. It also needs to be seen whether such
view is possible on the basis of the evidence.
12. Waman (PW 1), complainant, has given evidence that
these two accused along with others entered a shed situated in
the disputed property on that night and then assault was made on
him and on his three uncles. He has given specific evidence
against petitioner Balbhim that Balbhim assaulted him with iron
bar on head. He has given specific evidence against Balaji that
Balaji gave beating on his back with stick. At Exh. 60, there is the
F.I.R. given by this witness and it is consistent with the part of
evidence, which is given against these two petitioners. The F.I.R.
was given almost immediately after the incident.
13. The evidence of Dr. Pandit (PW 4) shows that he
examined Waman (PW 1) at 9.00 a.m. on 28.12.1988 and he
found C.L.W. over parietal region of Waman of size 1½" x ½ x ½".
He found one contusion over back of size 6" x 3". One more
contusion was found on left elbow joint. According to the Doctor,
Cri. Revn. Appln. No. 82/1996
all these injuries were sustained within 6 to 12 hours and were
caused by hard and blunt object. The injury certificate at Exh. 66
prepared by this doctor is consistent with his oral evidence. This
medical evidence gives corroboration to the version of Waman
(PW 1).
14. Sain (PW 2) has given evidence that some accused
were armed with axe, also but he was assaulted with stick. He has
given specific evidence against Balbhim and Balaji. But, there is
specific evidence against Madhukar, Gopal and one Shivaji also.
He has given evidence that they used sticks against him and due
to beating given to him, he sustained fracture injury to hand.
Though it can be said that there are no specific allegations
against these two petitioners from Sain, there is no reason to
disbelieve Sain in respect of his contention that Balaji and
Balbhim participated when he was assaulted.
15. Dr. Pandit (PW 4) has given evidence that on
28.12.1988 as many as 9 injuries were found on the person of
Sain. On clinical examination, he found fracture to middle 1/3 of
left forearm. There were three abrasions, five contusions and one
C.L.W. The X-ray in respect of these injuries were not produced.
Cri. Revn. Appln. No. 82/1996
Doctor has given evidence that these injuries were sustained
within 6 to 12 hours and they were caused by hard and blunt
object. The M.L.C. at Exh. 67 is consistent with his oral evidence.
Though there is no X-ray report in respect of aforesaid fracture
injury, this Court sees no reason to disbelieve the doctor on his
contention that on clinical examination, he found that there was
fracture of left hand. This medical evidence gives corroboration to
the evidence of Sain.
16. Vyankat (PW 3) has given evidence that Balbhim
assaulted Sain with stick and Balbhim assaulted him also with
stick. He has given evidence that Balbhim assaulted Waman with
iron bar and Balbhim assaulted Tukaram with stick. He has given
evidence that other accused also assaulted Waman. Thus,
Vyankat (PW 3) has tried to say that Balbhim used both stick and
iron bar. It can be said that there is little bit exaggeration in the
evidence given by this witness and it is not probable that Balhim
had used both such weapons in the same incident. There is
probability that all the assailants had used sticks only, in view of
the evidence given by Sain.
17. Dr. Pandit (PW 4) has given evidence that on
Cri. Revn. Appln. No. 82/1996
28.12.1988 when he examined Vyankat (PW 3) he found a
contusion over the left shoulder and one abrasion over right
clavicle. According to him, the injuries were caused within 24
hours and they were caused with hard and blunt object. M.L.C. at
Exh. 68 is consistent with his oral evidence and it gives
corroboration to the version of Vyankat.
18.
Dr. Pandit (PW 4) has given evidence in respect of the
injuries sustained by Tukaram also, but Tukaram is not examined
as a witness. In any case, in view of the evidence given by
Vyankat and Sain that, Tukaram was also assaulted, non
examination of Tukaram will not affect the case of prosecution as
cognizable offence was committed.
19. Panch witness Dattatraya (PW 5) has proved the spot
panchanama which is at Exh. 74. His evidence shows that he is an
independent witness. This evidence shows that one stick, having
blood stains, was found on the spot of offence. The defence taken
by the petitioners in statements under section 313 of Cr.P.C.
shows that the incident is not disputed. It is only contended that
the petitioners were in possession and they were sleeping in the
shed as the property belongs to them. It is their case that it is the
Cri. Revn. Appln. No. 82/1996
injured witnesses from this case, who assaulted them.
20. The aforesaid evidence is sufficient to prove that the
petitioners were involved in the incident and they caused injuries
to atleast 3 prosecution witnesses by sticks. One of the
prosecution witness sustained fracture injury. The J.M.F.C. and
Sessions Court have held that the offence punishable under
section 326 of I.P.C. is proved, but the aforesaid evidence does not
show that any dangerous weapon was used. In view of the nature
of the evidence and aforesaid circumstances, this Court holds that
the conviction is possible for offence punishable under section
325, 323 and 34 of I.P.C. For conversion of such findings, this
Court holds that the proceeding needs to be allowed. However,
due to the aforesaid irregularity, there is no need to remand the
matter to Sessions Court.
21. The incident took place in the year 1988. The other
side is acquitted of the offences in the counter case. The record
shows that no revenue record as such was produced by both the
sides. The decision is given only on the basis of oral evidence and
both the sides contend that they were in possession of disputed
portion. Investigating Officer is not examined. The complaint was
Cri. Revn. Appln. No. 82/1996
confronted with supplementary statement in which he had stated
that in all 19 persons had assaulted them. Due to non
examination of Investigating Officer, this contradiction could not
be proved. The case was filed against ten accused, but the
Criminal Court has convicted only the petitioners, two accused, in
view of the nature of evidence given in the case. In view of these
circumstance, this Court holds that it is not desirable to send the
petitioners behind bars after so many years of the incident. This
Court holds that benefit of provisions of Probation of Offenders Act
need to be given for doing justice. The petitioners can be directed
to pay compensation to Sain as he sustained fracture injury. So
the order.
ORDER
(i) The revision is allowed.
(ii) The judgment and order of Sessions Court is
modified to convict the petitioners for offences
punishable under section 325, 324 r/w. 34 of I.P.C.
(iii) In stead of sentencing them, at once they are
given benefit of provisions of section 4 of the
Probation of Offenders Act. Each of the petitioner is
to execute the bond of Good Behaviour for the period
Cri. Revn. Appln. No. 82/1996
of one year of the amount of Rs. 15,000/- (Rupees
fifteen thousand) with one surety of similar amount.
Each petitioner is to keep peace, be of good
behaviour and not to commit similar offence during
this period.
(iv) In case of breach of conditions of bond, the
petitioners will be liable to undergo sentence.
(v) Each appellant is to pay compensation of Rs.
5,000/- (Rupees five thousand) to Sain or his widow
and if widow is not there to his other legal
representative, if he is dead. The amount is to be
deposited in the Court of J.M.F.C. within four weeks
from the date of this order. The J.M.F.C. is to call Sain
for giving of the amount.
(vi) The fees of the advocate appointed for original
complainant, respondent No. 2, is quantified at Rs.
2500/- (Rupees two thousand five hundred).
[ T. V. NALAWADE, J. ]
ssc/
