Tulshiram vs The State Of Maharashtra
2012 Latest Caselaw 168 Bom

                         1                               Cri. Appeal 205/2000


          IN THE HIGH COURT OF JUDICATURE OF BOMBAY,




                                                                       
                     BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO. 205/2000




                                               
     1.   Tulshiram s/o Jairam Lahure,
          Age : 45 years, Occu. Agriculture,




                                              
          R/o Bolegaon, Tq. Gangapur,
          Dist. Aurangabad.

     2.   Sadu s/o Parashram Lahure,
          Age : 18 years, Occu. Agril.




                                 
          R/o as above.

     3.
                    
          Arjun s/o Parashram Lahure,
          Age :19 years, Occu. Agriculture,
          R/o as above.
                   
     4.   Balu s/o Atmaram Lahure,
          Age : 22 years, Occu. Agri.
          R/o as above.
      


     5.   Parashram s/o Jairam Lahure,
          Age : 50 years, Occu. Agri.
   



          R/o as above.
                                                                ...Appellants.
          Versus





     The State of Maharashtra.
                                                               ...Respondent
                                      .....
     Shri S.G. Chapalgaonkar, Advocate for appellants.
     Shri N.R. Shaikh, A.P.P. for State.





                                     .....


                                  CORAM : T.V. NALAWADE, J.

DATED : 11th October, 2012 JUDGMENT:-

1. The appeal is filed against the judgment and order of

Sessions Case No. 158/1996 which was pending in the court of

2 Cri. Appeal 205/2000

Additional Sessions Judge, Aurangabad. The appellants were

charged for the offences punishable under section 147, 148, 307 of

the Indian Penal Code. They are convicted of the offences

punishable under section 147, 148 and 324 red with sec. 149 of the

Indian Penal Code. Both the sides are heard. This Court has

perused original record.

2. In short, the facts leading to the institution of the appeal

can be stated as follows.

Accused Nos. 2 and 3 are real brothers of accused No.1.

Other accused are also relatives of accused No.1. Accused No.5

died during pendency of the case. Agricultural land of accused No.1

Tulshiram is situated in village Bolegaon Tq. Gangapur. Between

lands of Tulshiram and of complainant Bankat there is bandh which is

also Shiv of two villages viz. Bolegaon and Balapur. Land of Bankat

is situated within limits of village Balapur. Though accused Nos. 2 to

6 are relatives of Tulshiram, they were living separate in their

respective houses which were constructed in their fields. House of

Tulshiram and house of Bankat are also situated in their respective

fields.

3. Two months prior to date of incident, Tulshiram

destroyed some portion of the aforesaid common bandh by ploughing

3 Cri. Appeal 205/2000

the bandh. The incident in question took place on 3/2/1996 at about

7.00 p.m.. The complainant and his brothers Shivsingh and

Ramsingh went to Tulshiram to ask him as to why Tulshiram had

ploughed the bandh. Quarrel started between Tulshiram on one side

and these three brothers on the other hand. The allegations are

made that after starting of quarrel, other accused came there and

then Tulshiram gave blows of axe on the heads of complainant and

his two brothers. The allegations are made that the other accused

took part in the incident and they used sticks. The complainant and

his brothers shouted for help and some persons living in the vicinity

rushed to the spot and they rescued complainant and his brothers.

4. Bankat and his brothers came to be shifted to

Government Hospital, Gangapur as they had sustained severe

injuries. Report of Bankat came to be recorded in the hospital and

Crime came to be registered for aforesaid offences. Two police

officers made investigation of the case. All the accused came to be

arrested. Spot panchanama came to be prepared. Blood was found

on the spot. During investigation, Tulshiram gave statement under

section 27 of the Evidence Act and then he produced axe used in the

incident which was kept in the house of one Apparao. The clothes of

the complainant and other injured came to be taken over. As there

4 Cri. Appeal 205/2000

were blood stains on the clothes of some accused, their clothes were

also taken over.

5. On the same day, the side of Tulshiram gave report

against Bankat and his brothers in respect of the same incident and

counter case came to be filed against Bankat and his brothers on the

basis of this report. Bankat and his brothers came to be acquitted in

the said case.

6. Bankat (P.W.1) has given evidence that he and his

brothers had gone to Tulshiram at about 6.00 p.m. to 6.30 p.m. to ask

him as to why he had caused damage to the common bandh. He has

deposed that when they started questioning Tulshiram, the other

accused came there and then Tulshiram gave blows of axe to him, to

Ramsingh and to Shivsingh. He has given evidence that other

accused used sticks against them. He has deposed that he became

unconscious as he sustained bleeding injury to head. He has

deposed that his relatives shifted him to Gangapur hospital where his

report at Exh. 16 came to be recorded. Exhibit 16 is duly proved in

the evidence of Bankat and it is consistent on material points with

substantive evidence of Bankat.

5 Cri. Appeal 205/2000

7. Cross examination of Bankat (P.W.1) shows that the

houses of accused are situated in their respective lands and they live

separate from each other. The evidence shows that the incident, due

to which quarrel took place had taken place two months prior to

incident in question. The evidence shows that Bankat admits that he

and his two brothers had gone to the house of Tulshiram on that

evening. At one place there is admission that they had left for the

house of Tulshiram at about 7.00 p.m.. The evidence shows that at

about 4.00 p.m. these three brothers and Tulshiram had visited

common bandh together as there was aforesaid dispute but on that

occasion no untoward incident had taken place. In view of these

circumstances, it was necessary for Bankat (P.W.1) to give some

explanation as to why they again went to the house of Tulshiram in

the evening time and that too together.

8. In the cross examination Bankat (P.W.1) has admitted

that the other side also gave report against them out of the same

incident and the crime was registered against them. He has deposed

that police filed charge sheet - a counter case against them. It can be

gathered that the incident took place as these three brothers went to

the house of Tulshiram after 7.00 p.m. and the incident took place

near house of Tulshiram.

6 Cri. Appeal 205/2000

9. Chandansingh (P.W. 6) - son of complainant has given

evidence that he rushed to the spot after hearing the shouts. He has

deposed that initially he was present in his field and after hearing

shouts, he went to the field of Dhanaji Pacharde. He deposed that

the incident took place in the field of Dhanaji and in his presence

Tulshiram assaulted to his father and his two uncles by using axe.

He has given evidence that accused Parashram caused bite injury to

one of his uncles and accused Sadu and Balu gave stick blows to

Shivsingh. He has deposed that accused Pundlik gave stick blow to

him on his back. His name is not mentioned in F.I.R.. There is no

medical evidence in support of his case and there is nothing to

corroborate his version that he was present on the spot and he had

opportunity to witness the incident.

10. Ramsingh (P.W. 7) brother of complainant has given

evidence which is similar to the evidence of complainant. Some

evidence on incident itself is little bit different. He has tried to say that

when Tulshiram rushed at them with weapon, they ran towards field

of Dhanaji. He has also tried to say that bite injury was caused to

Vitthalsingh by accused Parashram. Vitthalsingh is not examined by

prosecution. His evidence shows that the disputed bandh has width

of 36 feet. He has tried to say that Tulshiram had ploughed this

bandh only a day before the incident in question. Thus, there are

7 Cri. Appeal 205/2000

some inconsistencies on the point who were present at the time of

starting of dispute and the part played by the accused other than

Tulshiram in the incident. In the cross examination, Ramsingh (P.W.

7) has admitted that the brothers of Tulshiram came to the spot after

starting of the quarrel. This evidence is important. The brothers of

Tulshiram were living separate. The evidence of prosecution

witnesses shows that there was no reason for the other accused to

go to the house of Tulshiram as they had no knowledge about the

dispute and the visit of Tulshiram and complainant to common bandh

at about 4.00 p.m.. Thus it does not look probable that other accused

had gathered already in the house of Tulshiram prior to arrival of

complainant and his brothers.

11. Evidence of Shivsingh (P.W.8) - other brother of

Tulshiram is also little bit different. He has tried to say that he and his

brothers were returning from the house of Tulshiram after questioning

him about his act and after that the accused rushed at them, followed

them and then the accused assaulted them. The part played by

Tulshiram is described in similar manner by this witness also.

Shivsingh (P.W. 8) has given evidence that bandh was ploughed by

Tulshiram 7 or 8 days prior to date of the incident. This part of

evidence is not consistent with the evidence of complainant.

8 Cri. Appeal 205/2000

12. Kalyan (P.W. 10) is an independent witness and he is

cross examined by learned A.P.P.. His evidence need not be

considered as he had no intention to support the prosecution case.

Nanasaheb (P.W.1) tried to say that when he and others reached the

spot, the incident was already over. He has given evidence that

Shivsingh and Bankat were lying on the spot when they reached the

spot. He has tried to say that when he reached the spot, Tulshiram

and other accused were giving beating to Ramsingh and scuffle was

going on between them. His evidence however shows that Tulshiram

was holding axe in the incident. He has tried to exaggerate the things

by saying that when he tried to intervene, he received a blow of

weapon on his hand and he sustained fracture injury on his hand. His

police statement was recorded after about five days of the incident.

There is no medical evidence in support of his version that he

sustained injury in the incident. His name also was not mentioned in

F.I.R.. In view of these circumstances, this Court holds that not

much weight can be given to the evidence of Kalyan and Nanasaheb.

13. Dr. Narayandas (P.W. 13) has given evidence that he

examined Shivsingh, Ramsingh and Bankat on 03/02/1996, the date

of incident. He has deposed that each of these three injured had

sustained one incised wound. All of them had sustained incised

wounds on the head. Size of the injury of Shivsingh was 10x3x5

9 Cri. Appeal 205/2000

c.m.. There was bleeding. M.L.C. in respect of Shivsingh is proved

as Exh.35 and it is consistent with the evidence of Doctor. The size

of the injury of Bankat was 3x3x3 c.m.. M.LC. is proved at Exh.36.

Bankat had vomiting. Size of injury of Ramsingh was 10x3x3 c.m..

M.L.C. in respect of Ramsingh is at Exh. 37.

14. Evidence of Dr. Narayandas (P.W. 13) shows that Dr.

Dhutade had examined three injured witnesses and Narayandas was

not there when the witnesses were examined. Hand writing and

signature of Dr. Dhutade are identified by Narayandas. Thus M.L.C.s

are proved. M.L.C. register however was not brought to the Court. If

the evidence of Narayandas is accepted and M.L.C. are read in

evidence, it can be said that medical evidence is consistent with

evidence of three injured witnesses, so far as the role played by

Tulshiram is concerned.

15. Panch witness Dilip Tatute (P.W. 9) and C.P.I. Joshi

(P.W.15) have given evidence on spot panchanama which is

proved at Exh. 29. Their evidence and Exh. 29 show that the

incident had taken place in the field of Dhanaji. There was

standing crop of cotton of height of 2 to 3 feet. Some crop was in

damaged condition due to incident and there were blood stains on

the spot. The police collected earth sample mixed with blood from

10 Cri. Appeal 205/2000

the spot under panchanama Exhibit 29. This evidence is

consistent with the versions of three witnesses that the incident

did take place and the incident had taken place in the vicinity of

house of Tulshiram. This evidence further shows that distance

between house of complainant and spot of offence is about 1500

feet and distance between the house of Tulshiram and the spot of

offence is around 115 feet. Here only it needs to be kept in mind

that the spot panchanama shows that Dhanaji was having house

in the field. However, he is not examined by prosecution. In any

case, so far as evidence of spot panchanama is concerned, there

is no reason to disbelieve Tatute and Joshi.

16. Aute (P.W. 14) P.S.I. has given evidence that on

05/02/1996 the accused Tulshiram gave statement to him under

section 27 of the Evidence Act. He has given evidence that

Tulshiram then took them to the house of one Appasaheb and from

there he produced one axe. Memorandum of statement is proved at

Exh. 29 and panchanama of seizure of the axe is proved at Exh. 22.

Panch witness on these documents had turned hostile. Exh. 45,

Chemical Analysers's report shows that no blood was detected on the

axe. This weapon was not shown to the Doctor. This Court holds

that the evidence regarding discovery of weapon is not of use to the

prosecution in this case. However, absence of evidence on record as

11 Cri. Appeal 205/2000

regards recovery of weapon cannot go to the root of the case when

there is direct evidence which is corroborated by other evidence.

17. The evidence of Aute (P.W. 14) in cross examination

shows that it transpired during investigation that there was scuffle.

He has deposed that counter case were filed against both sides out

of same incident. His evidence shows that map of scene of offence

was not prepared by police and thus there is some evidence about

location of the house of complainant but there is no evidence about

distance between houses of other accused and the spot of offence.

18. The evidence of three injured witnesses, the evidence of

spot panchanama and the medical evidence show that some incident

did take place. The evidence is consistent so far as it is against

accused Tulshiram. It was necessary for Tulshiram to give

explanation about this evidence and about circumstances that the

incident took place in the field of Dhanaji, other farmer and not near

his house. As there is circumstantial check to the evidence given

against Tulshiram, this Court holds that evidence is sufficient to prove

that Tulshiram used weapon like axe in the incident and he assaulted

three injured persons. Though blood stains were found on the

clothes of some accused, this single instance is not sufficient to prove

their involvement in the incident or to prove that they had formed

12 Cri. Appeal 205/2000

unlawful assembly along with Tulshiram. There were counter cases

and injuries were sustained by Tulshiram also and so not much can

be made out from the circumstance that there were blood stains on

the clothes of some accused persons. As there is no convincing

evidence that the remaining accused were present with Tulshiram

from very beginning and as there is no circumstantial check to the

evidence given against them, this Court holds that there is no

sufficient evidence with prosecution to prove that other accused had

formed unlawful assembly with Tulshiram and they had also taken

part in the incident by using some arms.

19. It was argued that the trial Court has committed error in

reading the evidence from counter case in the present case. The

learned advocate for the appellant took this Court through the

judgment delivered by the trial Court. The judgment does show that at

many places the evidence given in counter case is considered by the

trial Court. Though the counter case is needs to be decided by the

same Court, the Court is required to keep in mind that they are two

separate cases. The evidence is recorded separately and evidence

in first case cannot be read in the second case. If one side wants to

use the record of second case in the first case for using some

circumstances then such record needs to be produced and further the

record needs to be confronted to accused of the first case. If the

13 Cri. Appeal 205/2000

accused of first case do not admit these circumstances then the

circumstances need to be proved duly in the first case. If such

procedure is not adopted then accused in first case will be taken by

surprise. That will certainly cause prejudice to the defence from first

case and so such procedure cannot be adopted. The trial Court has

considered the record which is available in the second case and that

has caused prejudice to at least to accused Nos. 2 to 6.

20.

For appellants it was submitted that the Doctor who

examined three injured witnesses is not examined by prosecution and

so aforesaid medical evidence cannot be used against the accused.

This Court holds that this submission is not acceptable.

21. The evidence of Doctor examined by the State shows

that the Doctor who examined three injured has shifted to Madhya

Pradesh and is not available for giving evidence. The Doctor who is

examined, has identified hand writing and signature of said Doctor

and M.L.C.s are duly proved. Such mode of proof is available in view

of the provision of Section 3 and 67 of the evidence Act. In view of

such circumstances, the evidence falls under section 32(2) of the

Evidence Act. Such record is prepared during discharge of

professional duty. The evidence on record does not show that the

defence had raised objection with regard to manner of proof or

14 Cri. Appeal 205/2000

defence wanted to see the M.L.C. register / original record. No

objection was taken when the trial Court gave Exhibit to the M.LCs..

In view of these circumstances, this Court holds that such defence of

the accused cannot be considered in the appeal.

22. It was argued for the appellants that the prosecution has

failed to prove the formation of unlawful assembly and so even

Tulshiram cannot be convicted and sentenced for offence punishable

under section 324 of the Indian Penal Code for which there was no

separate charge against him. This Court holds that there is no force

in this submission. Though there was no separate charge against

Tulshiram for offence punishable under section 324 of the Indian

Penal Code, provision of section 464 of the Code of Criminal

Procedure needs to be kept in mind in this regard. This provision

shows that if there is error in framing charge or there is absence of

such separate charge, the accused cannot get anything out of it if

such absence of separate charge has not caused failure of justice.

This section further shows that if failure of justice has been caused,

steps as given in section 464(2) of the Code of Criminal Procedure

can be taken and the trial can be re-commenced or new trial can be

ordered by the appellate Court. There is no such need in the present

case. The F.I.R. and the evidence already discussed show that the

accused Tulshiram only had used weapon like axe and he had

15 Cri. Appeal 205/2000

caused incised wounds to the three injured witnesses. In view of this

nature of allegations and the evidence, it can not be said that

Tulshiram was not aware of the allegations made against him. So, it

cannot be said that prejudice will be caused if Tulshiram is convicted

and sentenced for offence punishable under section 324 of the Indian

Penal Code.

23. In the case reported as Radha Mohan Singh Vs. State

of U.P. (2006) 2 Supreme Court Cases 450, all the accused were

charged for offence punishable under section 302 read with section

149 of the Indian Penal Code. When the matter went to the Supreme

Court, it transpired that the case as against only one accused was

falling under section 300 (thirdly) but there was no possibility of

convicting other accused for such offence and against them there

was evidence of commission of lesser cognate offence. The Apex

Court held that there was no necessity of framing separate charge as

against one accused who had committed murder. The Apex Court

relied on the case reported as Dalbir Singh Vs. State of U.P. (2004)

5 SCC 334 decided by three judges of Hon'ble Apex Court. It is held

that for appellate or revisional Court it is possible to convict the

accused for offences for which no separate charge was framed if it

was not causing failure of justice. It is observed that in view of

provision of Section 464 of the Code of Criminal Procedure, it is

16 Cri. Appeal 205/2000

necessary to examine whether the accused who is to be convicted,

was aware of the basic ingredients of offence for which he is being

convicted. It also needs to be seen whether main facts to be

established against such accused were explained to him clearly and

whether he got fair chance to defend himself. This Court holds that

the observations made in these two reported cases can be used in

the present case. In view of facts and circumstances of the present

case, this Court holds that accused Tulshiram had such knowledge

and he had fair chance to defend himself in respect of charge for

offence punishable under section 324 of the Indian Penal Code and

so no prejudice can be caused to him if he is convicted for offence

punishable under section 324 of the Indian Penal Code.

24. Learned A.P.P. placed reliance on two reported cases (i)

AIR 2002 Supreme Court 2137 (1) Malhu Yadav Vs. State of Bihar

and (ii) 2010 Cri.L.J. 2228 Supreme Court (Murli Vs. State of

Rajasthan). In these cases more than five accused were charged

and ultimately it was found that less than five accused had committed

offence of causing death. It was found that no other person was

present with the accused and were found guilty of the offence of

murder. Apex Court held that in such a case, though there was no

charge for offence punishable under section 304 or 302 read with

section 34 of the Indian Penal Code and there was charge of offence

17 Cri. Appeal 205/2000

punishable under section 302 read with section 149, convicting the

accused who are found guilty by using section 34 of the Indian Penal

Code will not cause prejudice to such accused. The ingredients of

section 149 and 34 of the Indian Penal Code provided for constructive

liability are different. In view of the observations made by Apex Court

in the two reported cases cited supra it can be said that principle laid

down in section 464 of Cr.P.C. can be used and the analogy given in

these two cases by Apex Court can be extended further and person

like Tilshiram can be convicted of offence punishable under section

324 of the Indian Penal Code, even when there was no such separate

charge against him.

25. This Court holds that accused Tulshiram needs to be

convicted for offence punishable under section 324 of the Indian

Penal Code but other accused are entitled to benefit of doubt. In

respect of Tulshiram, argument was advanced for taking lenient

view. The incident took place in the year 1996. Many persons from

the complainant's side had gone to the house of Tulshiram and in

respect of same incident Police filed counter cases against both

sides. There is no specific medical evidence to show that these

injuries were dangerous to life. In view of the facts and

circumstances of the case, this Court holds that it is not desirable to

send Tulshiram behind bars for such offence after 12 years of

18 Cri. Appeal 205/2000

commission of offence. He was already behind bars for about 24 days

in this case. This Court holds that Tulshiram can be directed to pay

some compensation to the injured witnesses as they had sustained

head injuries and they were indoor patients for few days.

ORDER

Appeal is allowed in respect of appellant Nos. 2

to 5. Judgment and order of conviction and sentence

against them for offence punishable u/s 147, 148 and

324 read with section 149 of the Indian Penal Code is

set aside and they are acquitted of these offences.

Appeal of Tulshiram is partly allowed. His

conviction for offence u/s 147, 148 of the Indian Penal

Code is set aside. His conviction for offence u/s 324

read with section 149 of the Indian Penal Code is

converted to one u/s 324 of the Indian Penal Code. He

is sentenced to the period of imprisonment already

undergone which is around 24 days. However, he is

to pay the compensation of Rs.10,000/- each to

injured prosecution witnesses Bankat, Ramsing and

Shivsing.

Other part of operative order of the judgment

regarding disposal of property etc. is maintained.

19 Cri. Appeal 205/2000

The compensation amount is to be deposited in

the Sessions Court on or before 19/11/2012. The

Sessions Court to issue notices to the injured for

making the payment of the compensation to them.

Bail bonds of the acquitted accused 2 to 5 are

cancelled. After the compensation amount is paid, the

bail bonds of Tulshiram shall stand cancelled.

                        ig                        ( T.V. NALAWADE J. )
                      
     ts k/