Bombay High Court
State Of ... vs Dharma @ Darmapal Fakiraji Mate on 6 April, 2017
Bench: B.P. Dharmadhikari
1 060417 cri. appal 485.03 & connected.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.485 of 2003
Dharma @ Dharmapal s/o Fakiraji Mate,
Aged about 35 years, Occupation- Cultivation,
Resident of Bamni, Tahsil Nagbhid,
District Chandrapur. .... Appellant.
-Versus-
The State of Maharashtra,
through the Police Station Officer Nagbhid. .... Respondent.
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None for appellant.
Shri A.S. Fulzele, Add.P.P. for State.
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With
Criminal Appeal No.611 of 2003
The State of Maharashtra,
through the P.S.O., Police Station Nagbhid,
Distt. Chandrapur. .... Appellant.
-Versus-
Dharma @ Dharmapal s/o Fakiraji Mate,
Aged about 35 years, Occ.- Cultivation,
R/o.-Bamni, Tq.- Nagbhid, Distt.- Chandrapur. .... Respondent.
----------------------------------------------------------------------------------------------
Shri A.S. Fulzele, Add.P.P. for State.
None for respondent.
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2 060417 cri. appal 485.03 & connected.odt
Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 06
March, 2017.
O R A L J U D G M E N T (Per B.P. Dharmadhikari, J.)
Heard the learned Additional Public Prosecutor for the State in
both the Appeals. Nobody appears for the respondent. The matter
was called out in first half. As there was no appearance on behalf of
respondent, it was kept back. Again in second half there was no
appearance on behalf of respondent. At the time when the learned
Additional Public Prosecutor was to conclude his argument, learned
Advocate Ms Nagia Pathan, the junior of learned Advocate
Shri S.V. Sirpurkar has appeared and requested for taking up the
matter on Tuesday. We have rejected the request as To-day i.e.
Thursday is already notified as a day scheduled for taking up the old
matters and learned Advocate Shri S.V. Sirpurkar has appeared in
some matters earlier, today only.
2] The accused was charged under Section 302 of the Indian
Penal Code, 1860 in relation to the incident dated 15-04-2000. The
prosecution claimed that on that day about 10.00 hours at Mouza
Bamni Kotgaon field, the accused voluntarily caused grievous hurt to
Bajirao Fagoji Uike by means of stick and committed an offence. The
rd
charge was framed by 3 Adhoc Additional Sessions Judge,
Chandrapur. First charge on the basis of these facts points out
3 060417 cri. appal 485.03 & connected.odt
offence under Section 326 of the Indian Penal Code, while in later part
he is charged with offence of intentionally committing murder or
knowingly causing death of Bajirao Fagoji Uike punishable under
Section 302 of the Indian Penal Code.
3] Vide judgment delivered on 26-06-2003, the trial Court has
acquitted accused Dharma of offence punishable under Section 302
of the Indian Penal Code. However, he has been found guilty under
Section 326 of the Indian Penal Code and sentenced to suffer RI for
three years and to pay a fine of Rs. 5000/- or i/d thereof to suffer RI
for six months. As he was in jail from 23-04-2000 to 11-09-2000, set
off under Section 428 of the Code of Criminal Procedure, 1973, has
been permitted. This acquittal under Section 302 of the Indian Penal
Code has been questioned by the State Government in Criminal
Appeal No.611 of 2003 while conviction under Section 326 of the
Indian Penal Code is questioned by accused Dharma in Criminal
Appeal No.485 of 2003.
4] In Criminal Appeal No.485 of 2003, this Court on 07-08-2003
while admitting it, released Dharma on bail. Thus, after 26-06-2003
till his release after 07-08-2003 he was again in jail.
5] The learned Additional Public Prosecutor has invited our
attention to the evidence on record to urge that about three witnesses
4 060417 cri. appal 485.03 & connected.odt
have consistently spoken of oral dying declaration and there is no
cross examination about it. Evidence of (PW-2) Santosh Kumare is
also relied upon to urge that apart from oral dying declaration, this
person has also pointed out that he has witnessed the actual assault.
Our attention is also invited to similar evidence adduced by (PW-4)
Manoj Madavi and (PW-5) Sanjay Nagapure.
6] In view of this consistent evidence the learned Additional Public
Prosecutor submits that the role of Dharma as an author of wound
has been accepted, mere fact that one of the doctors namely (PW-8)
Dr. Sindhu Brahmanand initially found only one lacerated wound over
the posterior aspect of scalp, cannot constitute a valid reason to
discard the evidence adduced by (PW-9) Dr. Vipul Ambade who has
conducted the post mortem. This doctor has found total five external
wounds and four out of them are relevant for the present purposes.
The learned Additional Public Prosecutor invites our attention to the
corresponding internal injuries to urge that the serious nature thereof
is apparent. Placing reliance upon the length and girth of stick used
for assault and the injuries he argues that blow was forceful & intention
as also knowledge is apparent and hence the acquittal under Section
302 of the Indian Penal Code is unwarranted.
7] With the assistance of the learned Additional Public Prosecutor,
we have perused the records as also the judgment dated 26-06-2003
5 060417 cri. appal 485.03 & connected.odt
delivered by IInd Adhoc Additional Sessions Judge, Chandrapur.
8] (PW-2) Santosh Kumare has in-chief stated that one Sandip
Randhai called him saying that Bajirao was lying on ground. He went
near Bajirao. Bajirao was having bleeding injury on his head. He
enquired from Bajirao who beat him. Bajirao told that Dharma Mate
(accused) assaulted him by means of stick. Santosh then brought
water from the well of Mate and gave it to Bajirao. One Donu was
going towards his house and Santosh narrated the incident to him.
Sandip was standing near Bajirao. The APP got Santosh declared
hostile and in cross examination conducted by APP, Santosh has
accepted that he saw Dharma giving stick blow on the head of Bajirao
and thereafter Dharma ran away from the spot. After this, cross
examination has been conducted on behalf of accused and in it all
suggestions given to him by learned Advocate for the accused are
accepted by him. He has stated that the Police did not read out his
statement to him and he did not see Dharma while beating Bajirao
with stick. (PW-3) is Sandip Randhai who had called Santosh. His
evidence in-chief shows that he was taking his cows for grazing and
cattle of Bajirao (deceased) and cattle of Santosh were already there
for grazing. Dharma assaulted Bajirao by stick on his head. Then he
and Santosh gave water to Bajirao. He called Donu. His cross
examination reveals that he had taken his cattle for grazing towards
the field of Natthu Katekhaye. The field of Natthu is at a distance of
6 060417 cri. appal 485.03 & connected.odt
half kilometer away from the field of Dharma. In cross, he has
accepted that there were trees of Babhul, Kadunimb and Palas and
due to trees the field of Dharma cannot see from the field of Natthu.
He further states that he did not see Dharma while beating Bajirao
by stick. He went there and Bajirao was lying on ground unconscious.
9] (PW-4) Manoj Madavi also deposed that he was informed by
one Santosh Nagapure that his grand father (deceased Bajirao) was
beaten by accused by means of stick. Therefore he came to the field,
found Bajirao lying on the common bund (dhura) of Nannaware,
Dharma and Bhendarkar. Bajirao had sustained injury on head. He
asked his grand father and his grand father told him that Dharma Mate
assaulted him. His cross examination reveals that he noticed 3-4
injuries on the person of his grand father. He denied that his grand
father was in unconscious condition. The remaining cross examination
of this witness does not bring on record anything to discredit him.
10] Perusal of evidence of Santosh, supra, reveals that he has not
been cross examined about oral dying declaration brought on record
through him by the State. In cross examination conducted by the
APP, Santosh has stated that he had seen Dharma attacking on
Bajirao. He has further stated that he was called by Sandip. This
Sandip is PW-3. (PW-3) Sandip has also deposed that he saw
Dharma attacking Bajirao with stick on head. Both these witnesses,
7 060417 cri. appal 485.03 & connected.odt
in-chief support each other. The chief appears to be also in
consonance with respective police statements. However, during cross
examination, they appear to have mechanically accepted the
suggestions given by learned Advocate for the accused. Impliedly,
they agree that they have not seen the actual assault. However, in
totality of circumstances, we are not inclined to give much importance
to those answers given by them in cross examination. In any case, as
there is no cross examination of any of these witnesses on oral dying
declarations, fact that deceased Bajirao himself told these persons
about attack by Dharma has consistently come on record. Bajirao
communicated this on three occasions to three persons.
11] Bajirao was first examined by (PW-8) Dr. Sindhu Brahmanand.
This doctor has noted only one injury.
"i) Lacerated wound over the posterior aspect of
scalp.
Size 6 cm. X 2 cm. X cm. and the age of
injury was 2 to 3 hours. The injury can be
grievous injury."
Accordingly, injury certificate Exhibit 40 was given.
12] (PW-9) Dr. Vipul Ambade, who has conducted post mortem on
18-04-2000 has noted five external injuries :-
8 060417 cri. appal 485.03 & connected.odt
"i) Abrasion over parital area half inch left to mid line
1 inch x half inch, brown scab present.
ii) Abrasion over left parietal prominence half inch x
half inch, brownish scab present.
iii) Abrasion one and half inch right and anterior to
injury no.1 x half inch brownish scab present.
iv) Stitch wound over mid parieto occipatal vertically
oblique two and half inch length over the margin
approximated.
v) Bed sores present over left side buttock, 3 inch x
2½ inch, evidence of infection present."
13] (PW-8) Dr. Sindhu Brahmanand examined Bajirao on the date
of incident i.e. on 15-04-2000 while post mortem was conducted on
18-04-2000. Bajirao has received medical treatment for about three
days. The details thereof are not brought on record. The trial Court in
this situation has found it difficult to accept that more than one injury
was inflicted by accused Dharma. The prosecution has not led any
evidence and advanced any argument to explain this inconsistency.
14] The learned Additional Public Prosecutor, however, points out to
us that external injury noted at the time of post mortem at serial no.(v)
are bedsores which may have developed after Bajirao was admitted as
indoor patient. According to him, the other four injuries are caused by
Dharma. Injury at serial no.(iv) is stitched wound. There is nothing on
9 060417 cri. appal 485.03 & connected.odt
record to find out the age of that injury. Whether it was old injury or
then whether stitches were fresh, is not apparent. The same can be
said about remaining three injuries noted as external injuries. Other
record of P.M. is not produced. No record of any treatment has been
placed on record to show that Bajirao was treated for more than one
head injury.
15] In this situation, we are not in a position to find any fault with the
view of trial Court that Dharma cannot be said to have caused all of
these injuries. There is no medical opinion on record to show that
stick in question could have caused a fatal injury. The acquittal,
therefore, under Section 302 of the Indian Penal Code as recorded
appears to be just and proper. More reasons are being given little
latter.
16] We also have enquired from the learned Additional Public
Prosecutor about query report. Though the stick used for assault is
not shown to any of the prosecution witnesses, it has been recovered
under Section 27 of the Indian Evidence Act, 1872. The recovery has
been established by examining (PW-10) Vijay Kuhikar, the
Investigating Officer. Witness Natthu Ramgunde was examined as
(PW-6) to prove the seizure panchanama. He has identified the stick
as Article-'A'. However, he states that panchanama was prepared in
Police Station. The details thereof are given by (PW-10) Vijay Kuhikar.
10 060417 cri. appal 485.03 & connected.odt
The memorandum and seizure Panchanama show that it (Bamboo
stick) was hidden by accused Dharma in the heap of grass and he
had taken it out in presence of panch witnesses. The Chemical
Analyser's report shows the presence of human blood on the said
stick. Thus fact that the stick was used for assaulting Bajirao by
Dharma has been proved on record.
17] Said stick is about 49 inches in length and 3 inches in girth at
one & 3.6 inches at the other end. It is having seven nodes.
18] We have enquired from the learned Additional Public Prosecutor
about availability of an opinion of expert that such a stick can cause
death if its blow is given on head. Unfortunately, in the present matter,
the stick was not sent to any doctor and there is no such opinion
available on record. Section 326 of the Indian Penal Code requires
using of the weapon in commission of the offence which is likely to
cause death. Here that evidence is lacking.
19] In the light of this discussion, we find that conviction of Dharma
under Section 302 as also u/s 326 of the Indian Penal Code by the trial
Court is unwarranted. However, we hold him guilty under Section 324
of the Indian Penal Code. First doctor examining him as already found
that injury may be grievous. It is also on vital part & Bajirao ultimately
died due to it.
11 060417 cri. appal 485.03 & connected.odt
20] Considering the fact that he was pronounced guilty under
Section 326 of the Indian Penal Code on 26-06-2003 for a incident
which has taken place on 15-04-2000 and the proceedings are
pending till date, we are inclined to accept the period of imprisonment
already undergone by him as sufficient punishment in the present
circumstances.
21] Accordingly, we dismiss Criminal Appeal No.611 of 2003 filed by
the State Government and partly allow Criminal Appeal No.485 of
2003 filed by the accused and alter his conviction to one under
Section 324 of the Indian Penal Code from Section 326 of the Indian
Penal Code accepting the period already spent in jail as sufficient
punishment under Section 324 of the Indian Penal Code. His bail
bonds are cancelled. The muddemal property be dealt with as
directed by the trial Court after the appeal period is over.
JUDGE JUDGE
Deshmukh
