Bombay High Court
Pandurang Rukmanna Patil vs State Of Maharashtra on 30 March, 2016
Bench: S.S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 442 OF 1996
Shri Pandurang Rukmanna Patil
Aged 49 years, Resident of Mhalewadi,
Taluka Chandgad, District-Kolhapur. ... Appellant.
Versus
1
2
The State of Maharashtra.
Sambhaji Shivaji Patil.
3 Smt. Anusaya Shivaji Patil,
Both Respondent Nos. 2 and 3
R/o. Mhalewadi, Tal. Chandgad,
Dist. Kolhapur. ... Respondents.
---
Ms. V.V. Thorat, advocate for apepllant.
Ms. Monali Patil, advocate appointed for respondent Nos. 2 and 3.
Ms. V.S. Mhaispurkar, APP for State.
---
CORAM : SMT. SADHANA S. JADHAV,J
DATE : MARCH 30, 2016
JUDGMENT :
1 The appellant herein is convicted for the offence punishable
under Section 307 of the Indian Penal Code and sentenced to suffer
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R.I. for 5 years and to pay fine of Rs. 5,000/- I.d. to suffer R.I. for 3
months by the Additional Sessions Judge, Gadhinglaj in Sessions Case
No. 27 of 1996 vide Judgment and Order dated 28 th June, 1996.
Hence, this appeal.
2 Such of the facts which are necessary for the decision of this
appeal are as follows :
(i) The appellant herein happens to be the paternal uncle of
Sambhaji Shivaji Patil(P.W.10). That the father of Sambhaji had
met homicidal death. The accused persons who had caused the
homicidal death of Shivaji Patil were convicted.
(ii) Sambhaji was residing with his mother Anusaya in the common
household which was shared by the accused/appellant. There was
notional partition between both the families. They were residing
separately in the same house. Entry to the house was common.
(iii) Sambhaji has filed Civil Suit against the appellant seeking
partition i.e. half share in the property. At the time of filing of the
suit, sugarcane crop was standing in the land. Pursuant to the orders
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passed by the Civil Court, Sambhaji was entitled to half share of the
crop and the appellant was entitled to the remainder half.
(iv) It is the case of the prosecution that on 6/5/1995 at about 8.30
p.m. when Sambhaji was standing in front of the house supervising
the transport of the sugarcane to the sugar factory, the
accused/appellant had abused him, as he was annoyed on account of
Sambhaji being entitled to the half share, although he had cultivated
the said crop. There was verbal altercation between the uncle and the
nephew. It is alleged that the appellant was armed with sickle and he
assaulted Sambhaji on his neck with the sickle. Then Sambhaji
attempted to rescue himself. He was followed by the appellant who
gave subsequent blow on his left leg. When Sambhaji fell down, the
appellant had allegedly assaulted him with the same sickle on his
abdomen.
(v) That the mother of Sambhaji i.e. Anusaya (P.W.11) had
appeared on the scene of the offence. The appellant had allegedly
assaulted Anusaya (P.W.11) with the sickle on her head, shoulder and
back.
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(vi) They both had fallen on the ground. Both were left unattended
for almost two hours and thereafter, at the instance of Dr. Shinde,
police vehicle was called and injured were shifted to Belgaon
Hospital. They were taking treatment at K.L.E. Hospital, Belgaon for
almost 3 to 3 ½ months. The sarpanch of the village Shri Vithal Hari
Patil (P.W. 4) lodged report at the police station. On the basis of his
report, Crime No. 20 of 1995 was registered at Chandgad Police
Station against the accused for the offence punishable under Sectin
307, 504, 506 read with Section 34 of the Indian Penal Code.
(vii) Upon completion of investigation, charge-sheet was filed on
21/11/1995. The case was committed to the Court of Sessions and
registered as Sessions Case No. 27 of 1996.
(viii) The prosecution examined as many as 13 witnesses to bring
home the guilt of the accused. The case rests upon the evidence of
P.W. 10, P.W.11 and P.W.5.
3 P.W. 10 Sambhaji Shivaji Patil has deposed before the Court
that civil suit was filed by him seeking share in the property. The
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Court by the interim order had granted half share to P.W. 10. He has
deposed before the Court the manner in which the incident has
occurred. He has reiterated the abuse hurled at him by the appellant.
He has specifically stated that the appellant herein had assaulted him
on neck, left leg and abdomen. As far as the incident in question is
concerned, witness has not been shattered in the cross-examination.
He has admitted in the cross-examination that the suit is still pending
and interim orders were passed in his favour. It is reiterated in the
cross-examination that after the first assault, he ran to a distance of 4
to 5 ft. and the accused had assaulted him on the leg from behind by
bending down and when he further ran for 10 to 15 ft., the appellant
had assaulted him on his abdomen. It is elicited in the cross-
examination that on the date of incident the sugarcane from the land
of the accused was being sent to the sugar factory and not the sugar
cane from the land of P.W. 10. However, it is clear that as far as the
actual assault is concerned, the witness has not been shattered in any
manner.
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4 P.W. 11 Anusaya Patil is the mother of P.W. 10. She has
reiterated the narration of P.W. 10. In the cross-examination, she has
admitted that her husband Shivaji was murdered and all the
concerned accused were convicted and sentenced to imprisonment
for life and that they were in the village on the date of the incident.
She has also admitted that the accused/appellant as well as her son
P.W. 10 are cultivating their own share. She has also admitted that
they were lying abandoned for almost more than two hours and
thereafter, the police had taken them to Belgaon Hospital.
5 The prosecution has examined P.W. 5 Dr. Mahabaleshwar Kaddi
who had given treatment to the injured in K.L.E. Hospital. He has
deposed before the Court that Sambhaji Patil was admitted in the
hospital at about 12.20 a.m. i.e. in the mid night of 6/5/1995 and
7/5/1995. He had found following injuries on his person.
(i) Incised spindle shape wound over Rt. Side of the neck 5" x 1
½" partially muscle was out and obliquely placed.
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(ii) Incised spindle shape wound just side, ½" below the 1st above
said injury & obliquely placed 4" x 2" muscle deep.
(iii) Penitrating incised wound on anterior wall of abdomen,
intestines were protruded.
(iv) Incised spindle shape wound on Lt. Ankle on posterior aspect 1
½" x 1" muscle deep.
He has deposed before the Court that the injury No. 3 was sufficient
in the ordinary course of nature to cause death.
6 He has also deposed before the Court that at the same time,
Anusaya Patil was admitted by Chandgad Police Station. She had
sustained following injuries :
(i) Incised spindle shape injury over posterior aspect, lt.side of
scalp, (parital bone) obliqualy placed 2" x 1 ½", spindle shape bone
deep.
(ii) Incised wound behind Lt. Ear 3" x 1" cartilage deep.
(iii) Incise spindle shape puncuture-don Lt. Side back of the chest 1"
lateral to midline lower part of lung punctured.
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(iv) Incised spindle shape wound on Lt. Supra scapular area 2 ½" x
1" bone deep and tapering towards shoulder.
He has further deposed that the injury No. 3 was dangerous to life.
He had issued the injury certificates which are at Exh. 19 and 20
respectively. It is elicited in the cross-examination that the certificate
was issued on the basis of the M.L.C. record. That he has received the
requisition letter from the police station alongwith the patient. He
has admitted that he was not the first doctor to examine the patient.
The earlier doctor would be in a better position to describe the
injuries as well as the condition of the clothes.
7 P.W. 7 Dr. Pandurang Shinde was attached to Primary Health
Center at Mangaon. He has deposed before the Court that on
6/5/1995 at about 9.15 p.m. the sarpanch of Mhalwadi called him
one phone and informed him that two persons were injured and they
are unconscious. That he had gone to the scene of offence and
examined the injured. He has seen that the intestine was coming out
from the injury of P.W. 10. He gave primary treatment and had tied
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the injuries. P.W. 10 had received two injuries on the neck. He has
deposed before the Court that both the injuries were serious. The
police had taken the injured to the hospital. He has not been
shattered in the cross-examination.
8 Upon perusal of the evidence adduced by the prosecution, it is
clear that both the injured had fortunately survived injuries. The
injuries sustained by them are proved by P.W. 5 and P.W. 7. In fact, it
was an extremely unfortunate incident that two persons were lying in
abandoned condition on the road with serious injuries. In fact, they
could have succumbed to the said injuries for want of medical
treatment. The injured are eye witnesses, as they have survived the
injuries and there is no reason to disbelieve them on any count.
9 The learned Counsel for the appellant submits that in fact, it is
due to quarrels inter se that the appellant has been falsely implicated.
According to the learned Counsel, the appellant happens to be the
uncle of the injured P.W. 10. They were almost residing in the same
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house although there was notional partition and therefore, according
to her, it cannot be believed that the uncle would have mounted
assault upon P.W. 10 in the said manner.
10 Since the respondent Nos. 2 and 3 are not represented, this
Court had requested advocate Ms. Monali Patil to espouse the cause
of the respondent Nos. 2 and 3. She has graciously accepted to
espouse the cause of respondent Nos. 2 and 3. By short notice, she
has gone through the record and assisted the Court.
11 It is submitted by the learned Counsel appointed for the
respondent Nos. 2 and 3 that the very fact that they are residing in
the same house and yet not noticed by the appellant or his wife or any
other kith and kin for almost two hours would reflect the insensitivity
of the appellant and his family. According to the learned Counsel for
the respondent Nos. 2 and 3, this omission on the part of the
appellant and his family members would be sufficient to infer that the
incident as narrated by P.W. 10 and 11 inspires confidence of the
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Court and their sterling testimony, cannot be brushed aside by
considering peripheral issues.
12 Taking into consideration the evidence on record and the
submissions advanced across the bar, this Court is of the opinion that
no fault can be found with the conviction recorded by the learned
Additional Sessions Judge and that the appellant deserves to be
convicted for the offence punishable under Section 307 of the Indian
Penal Code. However, it is a matter of record that the appeal is of the
year 1996. The appellant was in custody from 21/5/1995. He has
faced trial as an under-trial prisoner. The Judgment was delivered on
28/6/1996 and this Court had granted bail to the appellant by an
order dated 7th August, 1996.
13 Learned Counsel for the appellant submits that the appellant
had furnished bail almost one week after 7/8/1996. The learned
Counsel for the appellant fairly submits that in view of the pendency
of the appeal for almost 20 years, a sympathetic view be taken as the
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appellant is almost a senior citizen. That he has served the
substantive sentence for one year and 3 months.
14 In view of the submissions made by the learned Counsel for the
appellant, this Court is of the opinion that the appellant deserves to
be sentenced to the period already undergone.
12 The learned Counsel appointed for the respondent Nos. 2 and 3
submits that in the said eventuality, the sentence of fine be enhanced.
The learned Counsel for the appellant in reply submits that the
appellant is an agriculturist. He has hardly 5 acres of land. That
since there was drought, he cannot afford enhancement of fine.
13 However, this Court is of the opinion that the fine needs to be
enhanced. In view of this, the fine is enhanced to Rs. 10,000/- i.e. Rs.
5,000/- in addition to the fine imposed by the Session Court and
deposition of fine of Rs. 5,000/- at the time of being enlarged on bail
needs to be taken into account.
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14 Before parting with the Judgment, this Court appreciates the
efforts taken by the learned advocate Ms. Monali Patil for espousing
the cause of the respondent Nos. 2 and 3. The professional fees are
quantified at Rs. 1,000/- to be paid to the learned advocate so
appointed within 3 months from today.
15 Hence, the following order is passed :
ORDER
(i) The appeal is partly allowed.
(ii) The conviction of the appellant for the offence punishable under
Section 307 of the Indian Penal Code in Sessions Case No. 27 of 1996
vide Judgment and Order dated 28/6/1996 passed by the learned
Additional Sessions Judge, Gadhinglaj is maintained.
(iii) The appellant is sentenced to the period already undergone.
However, the sentence of fine is enhanced to Rs. 10,000/-, i.e. Rs.
5,000/- in addition to the fine imposed by the learned Additional
Sessions Judge, Gadhinglaj.
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(iv) The fine to be paid within 8 weeks from today.
(v) Out of the fine amount of Rs. 10,000/-, the injured Sambhaji
(P.W. 10) shall be given compensation of Rs. 9,000/-.
(vi) The learned Sessions Court, Gadhinglaj shall issue notice to
Sambhaji Shivaji Patil and call upon him to receive the compensation
of Rs. 9,000/-.
(vii) The bail bond stands cancelled.
16 The appeal is disposed of accordingly.
(SMT. SADHANA S. JADHAV,J)
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