Bombay High Court
Gajanan Baban Zalte vs State Of Maharashtra on 24 February, 2016
Bench: Z.A. Haq
Judgment 1 apeal137.99.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 137 OF 1999
Gajanan S/o. Baban Zalte,
Aged about 25 years, R/o. Patonda,
P. S. Nandura, Tq. Nandura,
District : Buldhana.
ig .... PETITIONER.
// VERSUS //
The State of Maharashtra,
through P .S.O. Nandura.
.... RESPONDENT
.
______________________________________________________________
Shri R.M.Daga, Advocate for Petitioner.
Ms Ritu Kalia, Advocate for Respondent.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : FEBRUARY 24, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. The appellant has filed this appeal challenging the
judgment passed by the learned Additional Sessions Judge convicting
him for the offence punishable under Section 304-II of the Indian Penal
Judgment 2 apeal137.99.odt
Code and sentencing him to suffer rigorous imprisonment for ten years
and to pay fine of Rs.One Thousand and in default of payment of fine
to suffer simple imprisonment for six months. The appellant is
convicted for the offence punishable under Section 324 r/w 34 of the
Indian Penal Code and sentenced to suffer rigorous imprisonment for
the period of two years.
3. The case of the prosecution is :
On 14th December, 1996 at about 8.00 a.m. deceased
Pundlik and his wife Manjulabai had come to village Patonda for work,
on entering the village Manjulabai went to the house of her father-in-
law Vitthal Borse, and Pundlik Borse went to a grocery shop in different
direction and while Pundlik was on his way to the grocery shop and
was passing nearby the temple, Tukaram Pachpor who resided opposite
the temple asked him whether he would do the work of harvesting
sunflower crop on hire basis. It is alleged that at that time the
appellant/accused reached there and questioned about the ability of
Pundlik to undertake the work. There were altercations between the
appellant-accused and Pundlik, the appellant caught hold of Pundlik
and accused No.2-Eknath, accused No.3-Santosh, accused No.4-Vinayak
and accused No.6-Waman joined the appellant-accused and they started
Judgment 3 apeal137.99.odt
beating Pundlik with fists and bricks. It is alleged that Pundlik got
himself released and ran towards the house of his father-Vitthal Borse.
It is alleged that accused No.5-Sakhubai and accused No.7-Taibai
followed Pundlik, caught hold of him near the house of Natthu Pachpor
and started beating Pundlik with chappals and in the meantime, the
appellant/accused and other accused reached there with sticks and
started beating Pundlik with sticks on his head and legs, accused No.2-
Eknath gave blow of stick on his head. Pundlik suffered bleeding
injuries. Ramkrushna Borse came there to rescue Pundlik. It is alleged
that the accused then ran away. Pundlik and Ramkrushna were taken
in a bullock cart to Nandura. Ramkrushna Borse lodged report. Crime
came to be registered against the accused for the offences punishable
under Sections 324 and 34 of the Indian Penal Code. Pundlik and
Ramkrushna were referred for the medical examination. Pundlik
succumbed to the injuries in General Hospital, Khamgaon on 15th
December, 1996 and offence punishable under Section 302 of the
Indian Penal Code came to be added against the accused.
The Investigating Officer conducted the investigation and
after completing the formalities, charge-sheet was filed before the
learned Judicial Magistrate First Class, Nandura and the offence being
Judgment 4 apeal137.99.odt
triable by the Court of Sessions, the matter was committed to the
Sessions Court for trial. The charges were framed against the accused,
they did not accept the guilt, the trial was conducted and the judgment
came to be passed by the learned Additional Sessions Judge. The
appellant, being aggrieved by the judgment passed by the learned
Additional Sessions Judge has filed this appeal.
4. Shri R.M. Daga, learned advocate for the appellant has
referred to the evidence and has tried to point out certain discrepancies
in the evidence. Referring to the examination-in-chief of Ramkrushna
Ukarda Borse (P.W.-1), it is pointed out that this witness is an
eyewitness and he has stated that Eknath Zalte (co-accused) has given
a blow on his head by a stick. It is submitted that there is only one
injury on the head of Ramkrushna Ukarda Borse and in view of the
evidence that the blow is given by Eknath Zalte (co-accused), the
appellant cannot be held guilty for causing injuries to Ramkrushna
Borse. It is submitted that the evidence of Ramkrushna Ukarda Borse
shows that Pundlik was taken to the Police Station, Nandura, however,
it is unexplained as to why Pundlik has not given the report. It is
submitted that according to the prosecution Pundlik suffered injuries
on 14th December, 1996 around 8.15 a.m. and he succumbed to the
Judgment 5 apeal137.99.odt
injuries on 15th December, 1996 around 10.30 p.m. in the hospital. It
is argued that the prosecution has not explained as to why Dying
Declaration of Pundlik was not recorded. From the cross-examination
of Ramkrushna Ukarda Borse, it is pointed out that though this witness
claims to be the eyewitness, the cross-examination of this witness
shows that he had seen Pundlik lying in the pool of blood then he was
given a blow of stick on his head and then he became unconscious and
he then gained consciousness at the house of Vitthal Borse and
therefore, it is clear that this witness is not an eyewitness and his
evidence cannot been relied upon to convict the appellant.
5. The learned advocate for the appellant has pointed out the
examination-in-chief of Tukaram Mango Pachpor (P.W.-5) which shows
that Ramkrushna Borse intervened and tried to rescue Pundlik and he
was hit by a stick by Eknath Zalte (co-accused) and he received head
injury. It is argued that the description of the incident as given by
Tukaram Mango Pachpor differs from the description of the incident
given by Ramkrushna Borse. It is submitted that variations are material
and ought to have been considered by the learned Additional Sessions
Judge and the non-consideration of these relevant discrepancies has
resulted in erroneous judgment. It is prayed that the appeal be
Judgment 6 apeal137.99.odt
allowed, the judgment be set aside and the appellant be acquitted of
the charge levelled against him.
The learned advocate for the appellant has submitted that
considering the nature of the incident, the learned Additional Sessions
Judge has committed an error in sentencing the appellant to undergo
rigorous imprisonment for ten years when the accused No.2-Eknath
Dama Zalte and accused No.3-Santosh Bagwan Tayade are also found
guilty for commission of the offence punishable under Section 304-II
and 34 of the Indian Penal Code and Section 324 and 34 of the Indian
Penal Code, however, they are sentenced to undergo rigorous
imprisonment for one year and six months on each count and to pay
fine of Rs.1,000/- each on each count, in default to suffer simple
imprisonment for 3 months.
In the alternative, it is submitted that the learned
Additional Sessions Judge ought to have imposed the same sentence on
the appellant as is imposed on accused No.2-Eknath and accused No.3-
Santosh.
Judgment 7 apeal137.99.odt
6. Ms Ritu Kalia, learned A. P. P. has supported the impugned
judgment. It is submitted that the findings recorded by the learned
Additional Sessions Judge are based on proper appreciation of the
evidence on record and the minor discrepancies pointed out in the
evidence of the prosecution witnesses are not of such a nature that it
can be said that the conclusions of the learned Additional Sessions
Judge are not proper. It is prayed that the appeal be dismissed.
7. After hearing the learned advocate for the appellant and
the learned A.P.P. and examining the record, I find that the conclusions
of the learned Additional Sessions Judge that the prosecution has
proved that the appellant, along with accused No.2 and accused No.3
conspired to cause death of Pundlik Borse and to voluntarily cause hurt
to Ramkrushna Borse and they caused bodily injuries to Pundlik Borse
having knowledge that they are sufficient to cause his death are proper.
The learned Additional Sessions Judge has rightly concluded that the
prosecution has failed to establish that the accused had intention to
cause death of Pundlik Borse. The learned A.P.P. has rightly submitted
that the discrepancies pointed out by the learned advocate for the
appellant in the evidence of Ramkrushna Borse (P.W.1) and Tukaram
Pachpor (P.W.5) are irrelevant and are not of such a nature that the
Judgment 8 apeal137.99.odt
conclusions of the learned Additional Sessions Judge can be said to be
improbable or perverse. The learned advocate for the appellant has not
been able to show that the findings recored by the learned Additional
Sessions Judge recording that the appellant is guilty of the offence is
required to be interfered with.
8.
However, the alternate submissions made by the learned
advocate for the appellant require consideration. Accused No.2-Eknath
and accused No.3-Santosh are found guilty for commission of the
offence punishable under Section 304-II and Section 34 of of the Indian
Penal Code and Section 324 and 34 of the Indian Penal Code and they
are sentenced to undergo rigorous imprisonment for one year and six
months on each count and to pay fine of Rs.One Thousand each on
each count and in default to suffer simple imprisonment for three
months. The appellant was in custody since 15th December, 1996 till
he is released on bail pursuant to the order passed by this Court on 7th
May, 1999, suspending the sentence. The respondent has not
complained that the appellant is involved in any crime after he is
released on bail. In the above facts, I am of the view that the following
order will sub-serve the ends of justice :
Judgment 9 apeal137.99.odt
i) The criminal appeal is partly allowed.
ii) The conviction of the appellant for the offence punishable
under Section 304-II of the Indian Penal Code is
maintained. However, the sentence is modified as under :
The appellant is sentenced to undergo rigorous
imprisonment for the period already undergone by him i.e.
for the period for which he had been in jail.
iii) In addition to the fine of Rs.One Thousand, the appellant
shall deposit Rs.One Lakh towards compensation within
three months, failing which the appellant to undergo
simple imprisonment for two years.
iv) The amount of compensation shall be deposited before the
trial Court.
v) On deposit of the amount of compensation, it shall be
given to the legal heir/ heirs of deceased Pundlik Vitthal
Borse.
vi) The bail bonds of the appellant shall stand cancelled after
deposit of the amount of compensation.
The Criminal Appeal is disposed of accordingly.
JUDGE
RRaut..
