Janardhan Panjabrao Pasare vs The State Of Maharashtra
2017 Latest Caselaw 1611 Bom

                                      902-REVN-130-2017-APPR-129-2017-130-2017.doc


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CRIMINAL APPELLATE JURISDICTION

         CRIMINAL REVISION APPLICATION NO.130 OF 2017
                            WITH
             CRIMINAL APPLICATION NO.129 OF 2017
                            WITH
             CRIMINAL APPLICATION NO.130 OF 2017
                              IN
         CRIMINAL REVISION APPLICATION NO.130 OF 2017

 JANARDHAN PANJABRAO PASARE                                )...APPLICANT

          V/s.

 THE STATE OF MAHARASHTRA                                  )...RESPONDENT

 Mr.P.B.Shah a/w. Mr.Akshay Chikale i/b. Mr.K.P.Shah, Advocate for 
 the Applicant.

 Mr.Vinod Chate, APP for the Respondent - State.

                               CORAM       :      A. M. BADAR, J.

                               DATE        :      11th APRIL 2017.

 ORAL JUDGMENT :


 1                By this revision petition, revision petitioner / original 

accused no.1 is challenging the judgment and order dated 23 rd

January 2017 passed by the learned Additional Sessions Judge,

Pune, in Criminal Appeal No.11 of 2010 thereby confirming the

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judgment and order passed by the learned JMFC, Pune, in Regular

Criminal Case No.106 of 2003 convicting the revision petitioner of

offences punishable under Sections 323 and 325 read with 34 of

the IPC and dismissing his appeal. The learned trial Magistrate

upon convicting the revision petitioner / original accused no.1 of

offences punishable under Sections 323 and 325 read with 34 of

the IPC has sentenced him to suffer simple imprisonment for six

months and to pay a fine of Rs.1,000/-, in default, to undergo

further simple imprisonment for one month for the offence

punishable under Section 323 of the IPC; and he is further

sentenced to suffer simple imprisonment for two years and to pay

a fine of Rs.2,000/-, in default, to suffer further simple

imprisonment for one month, in respect of offence punishable

under Section 325 of the IPC.

2 Heard. Admit. Heard finally by consent of parties.

3 Facts giving rise to filing of the instant revision petition

can be summarized thus :

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A report came to be lodged by PW2 Ganesh Gosavi on

27th January 2003 against the present revision petitioner and his

two associates with allegations that, when on that day at about

7.00 a.m. he was going for his work, the revision petitioner /

accused no.1 Janardhan Pasare came from behind and gave a

blow of stick on his head. He further alleged that two other

accused persons were accompanying revision petitioner / accused

no.1 Janardhan Pasare. They all assaulted him by means of sticks,

kicks and fist blows. When his wife Sheetal (PW3 ) came for his

rescue, she was assaulted by accused persons. Thereafter, when

his father-in-law Shivgir Giri (PW4 ) tried to intervene, accused

persons also assaulted him. This report has resulted in

registration of Crime No.42 of 2003 with Kothrud Police Station,

Pune, and wheels of investigation were set in motion. Ultimately,

the revision petitioner / accused no.1 along with two co-accused

came to be charge-sheeted for offences punishable under Sections

323, 324 and 325 read with 34 of the IPC. After trial, the learned

trial Magistrate was pleased to convict the revision petitioner /

accused no.1 and he was sentenced as indicated in the opening

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paragraph of this judgment. Out of two co-accused, accused no.3

Vinod Chaudhary died during pendency of the trial whereas

accused no.2 Mahendra Thakre came to be acquitted for want of

sufficient evidence against him. Being dissatisfied with this

judgment and order of conviction and sentence, the revision

petitioner / accused no.1 preferred a criminal appeal which came

to be registered as Criminal Appeal No.11 of 2010 and by the

impugned judgment and order dated 23 rd January 2017, the

learned Additional Sessions Judge, Pune, was pleased to dismiss

the appeal and to confirm the conviction and sentence recorded

by the learned trial Magistrate.

4 I have heard the learned advocate appearing for the

revision petitioner / original accused no.1. By drawing my

attention to the evidence of witnesses examined by the

prosecution, the learned advocate vehemently argued that no role

is attributed to the revision petitioner / accused in causing

grievous hurt to PW2 Ganesh Gosavi. There is no evidence to

show that accused persons were acting in league and in

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furtherance of their common intention they had injured the first

informant as well as prosecution witnesses. The only role

attributed to the revision petitioner / accused no.1 is that of giving

a blow on backside of the head by means of a stick. He is not the

author of fracture injury allegedly suffered by PW2 Ganesh Gosavi

and therefore, the offence punishable under Section 325 of the

IPC is not made out by the prosecution. The learned advocate

further argued that evidence of PW2 Ganesh Gosavi coming on

record through his cross-examination goes to show that about 20

to 25 persons gathered on the spot of incident but the prosecution

has failed to examine independent witnesses in support of the

charge. Panch witnesses have turned hostile and therefore, when

co-accused with similar offences was acquitted, the revision

petitioner / accused no.1 ought to have been acquitted by the

courts below. It is further argued that sentence imposed on the

revision petitioner / accused no.1 is too excessive and for this

purpose reliance is placed on judgment of the Hon'ble Apex Court

in the matter of Manjappa vs. State of Karnataka1 and Basayya

Prabhayya Hallur vs. State of Karnataka with Virabasayya 1 (2007) 6 Supreme Court Cases 231

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Prabhayya Hallur vs. State of Karnataka 2. The learned advocate

for the revision petitioner argued that fine imposed on the revision

petitioner can be enhanced to Rs.50,000/- as per the course of

action adopted in these judgments. It is further argued that

benefit of Probation of Offenders Act ought to have been granted

to the revision petitioner / accused no.1.

5 The learned APP supported the impugned judgment

and order.

6 I have carefully considered the rival submissions and I

have also gone through the record and proceedings. Both courts

below have concurrently recorded a finding of fact that the

revision petitioner / accused no.1 has committed offences of

causing voluntarily hurt so also that of voluntarily causing

grievous hurt to the first informant and prosecution witnesses.

Accordingly, the revision petitioner / accused no.1 came to be

convicted of offences punishable under Section 323 and 325 read

with 34 of the IPC.

2 (2009) 17 Supreme Court Cases 55

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7 It is well settled that revisional jurisdiction is to be

exercised sparingly when there is manifest error of law apparent

from the face of record or when there is glaring defect in

procedure resulting in miscarriage of justice. Evidence cannot be

re-appreciated while exercising revisional jurisdiction and finding

of fact supported by some evidence cannot be upset. Sufficiency

of evidence cannot be gone into while exercising the revisional

jurisdiction. With this, let us examine whether courts below have

committed error of law or procedural irregularity in convicting the

revision petitioner / accused no.1 for offences punishable under

Sections 323 and 325 read with 34 of the IPC.

8 PW2 Ganesh Gosavi is the first informant. It is in his

evidence that while going to his office at Wanaj by bicycle, the

revision petitioner / accused no.1 had given a blow of stick on the

backside of his head and he also saw two other persons with

revision petitioner / accused no.1 Janardhan Pasare and they were

holding sticks. PW2 Ganesh Gosavi has categorically stated in his

evidence that both accused persons who were with revision

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petitioner / accused no.1 Janardhan Pasare had also started

beating him by means of sticks and kicks. As per version of PW2

Ganesh Gosavi, he has suffered fracture injury to his left arm near

elbow. He has also deposed that when his wife PW3 Sheetal and

his father-in-law PW4 Shivgir Giri tried to intervene, they were

also assaulted by accused persons. The FIR lodged by this witness

is at Exhibit 22. This FIR was lodged on the day of incident itself.

Cross-examination of this witness reveals that the incident of

assault on him was preceded by the quarrel between his wife and

wife of the revision petitioner / accused no.1 Janardhan Pasare. It

is brought on record from his cross-examination that this injured

witness was not knowing names of two other accused persons. It

is brought on record from his cross-examination that to 20 to 25

persons had gathered on the spot of incident at the time of the

incident.

9 PW3 Sheetal Gosavi in tune with PW2 Ganesh Gosavi

has stated that after she heard sounds of noise, she came out to

see accused no.1 Janardhan Pasare and two others were

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assaulting her husband Ganesh Gosavi. She stated that she tried

to intervene but she was also assaulted by the accused persons

and her father who came there, was assaulted by them. As per

version of PW3 Sheetal she sustained injuries on her head and

stomach and she was admitted to Sassoon Hospital for three to

four days.

10 PW4 Shivgir Giri - father-in-law of the first informant

has deposed that after hearing noise he came out of the house to

see accused no.1 Janardhan Pasare with two others assaulting his

son-in-law Ganesh Gosavi. As per his version, when he went to

intervene, he was also beaten by accused persons causing injuries

to his hand, head as well as right hand. This witness also vouched

that his daughter Sheetal who was running pregnancy of seven

months duration was also assaulted by the accused persons. His

cross-examination reveals that because of conviction recorded

against him, this witness was in jail at Akola for a period of 1½

year.

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11 This is the evidence coming on record from mouth of

three injured witnesses. It is seen that on the day of incident

itself, PW2 Ganesh Gosavi and PW4 Shivgir Giri were referred to

the Sassoon Hospital for their medical examination. PW6

Dr.Kishore Chabukswar, Medical Officer had examined them

medically on that day. Evidence of PW6 Dr.Kishore Chabukswar

which is duly corroborated with contemporaneous record in the

form of medical certificates at Exhibits 30 and 31 is reflecting

following injuries on person of PW2 Ganesh Gosavi and PW4

Shivgir Giri. PW2 Ganesh Gosavi had suffered following injuries :

Injury No.1 Contusion with abrasion over left middle third of the forearm, size 8 cm x 6 cm - swelling tender and abrasions were 3 cm x 2 cm superficial and 2 x 2 cm superficial.

Query fracture radius ulna.

Injury No.2 Abrasion over left wrist joint dorsally size 1 x 1 cm superficial, 1 x 1 cm superficial Injury No.3 CLW on over left parital region size 5 x 1 cm deep to bone and it was bleeding

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Injury No.4 Contusion over left lower third of forearm size 6 x 5 cm swelling tender reddish Injury No.5 Contusion over left scapular region size 8 x 3 cm swelling tender reddish Injury No.6 Contusion over left knee joint size 5 x 5 cm swelling tender Injury No.7 Abrasion over left side of the chase wall on 5th, 6th and 7th ribs size 3 x 2 cm.

Injury No.8 Abrasion left maxillary region.

PW4 Shivgir Giri had suffered following injuries in the assault :

Injury No.1 Contusion over right thumb dorsally size 2 cm x 2 cm swelling tender Injury No.2 Contusion over right shoulder joint posteriorly size 8 cm x 3 cm swelling tender reddish Injury No.3 Abrasion over right infra scapular region size 10 cm x 1.4 cm superficial Injury No.4 CLW over right parito occipital region measuring about 7 cm to 1 cm deep to bone-bleeding.

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12 It is settled principle of appreciation of evidence that

injured witnesses are stamp witnesses whose presence on the

scene of occurrence admits no doubt because of injuries suffered

by them in the incident. If testimony of injured witnesses is found

to be truthful and reliable, then explicit reliance can be placed on

version of such witnesses. In the case in hand, cross-examination

of PW2 Ganesh Gosavi - an injured first informant goes to show

that the revision petitioner / accused no.1 was having motive to

commit the crime in question because of quarrel between his wife

and wife of PW2 Ganesh Gosavi on the day of the incident. All

three injured witnesses namely Ganesh Gosavi, Sheetal Gosavi and

Shivgir Giri are categorically stating that it was the revision

petitioner / accused no.1 along with two other accused persons

who had assaulted them. None of these three injured witnesses

were in a position to name the two associates of revision

petitioner / accused no.1 Janardhan Pasare. If they really wanted

to implicate somebody else falsely then, they could have very well

named other two accused persons also. That is how the learned

courts below had acquitted accused no.2 of alleged offences. It is

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not possible that injured witnesses will spare a real culprit and

would name accused no.1 Janardhan Pasare in order to falsely

implicate him in the crime in question. As such, I find no error of

law in the impugned judgment and order by which testimony of

PW2 Ganesh Gosavi, PW3 Sheetal and PW4 Shivgir Giri came to

be accepted to record conviction. Their version is duly

corroborated by medical evidence on record, so also the evidence

coming on record from the mouth of the Investigator who had

seized sticks used in the commission of the crime in question.

Considering injuries reflected on person of PW2 Ganesh Gosavi

and PW4 Shivgir Giri, it is not possible to hold that these injuries

were suffered by these two witnesses because of their fall from the

bicycle, and that too, simultaneously. There is no evidence to infer

such eventuality. As such, evidence adduced by the prosecution is

sufficient to hold that PW2 Ganesh Gosavi, PW3 Sheetal and

PW4 Shivgir Giri were assaulted by revision petitioner / accused

no.1 Janardhan Pasare along with his two associates.

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13 Now let us examine whether the assault was in

furtherance of common intention or it was a criminal act which

was a fresh and independent act springing wholly from the mind

of the doer. Section 34 of the IPC deals with common intention.

If criminal act is done by several persons in furtherance of

common intention of all of them, then each of such person is

liable for that act in the same manner as if it were done by him

alone. In other words, if two or more persons intentionally do a

thing jointly, it is just the same as if each of them had done it

individually. In the case in hand, evidence of all three injured

witnesses show that the revision petitioner / accused no.1

Janardhan Pasare, so also his two associates had simultaneously

assaulted them and each of them had participated in the action.

As such, it cannot be said that the assault was not in furtherance

of common intention shared by the revision petitioner / accused

no.1 with his associates. Hence, I find no merit in the submission

of the learned advocate for the revision petitioner / accused no.1

that the only role which can be attributed to the revision

petitioner / accused no.1 is that of blow on the backside of head

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of the injured PW2 Ganesh Gosavi. The assault was certainly in

furtherance of common intention of all three persons out of which

one is proved to be revision petitioner / accused no.1 Janardhan

Pasare.

14 In the case in hand, evidence of three eye witnesses,

who themselves are injured, is found to be trustworthy and

therefore, non-examination of other witnesses who might have

witnessed the incident in question, is not affecting the prosecution

case in any manner. When evidence available on record suffers

from infirmity or lacuna, then the question of non-examination of

other prosecution witnesses though available, assumes

importance. Therefore, as the available evidence is trustworthy,

non-examination of independent witnesses is of no consequence.

15 Now let us examine whether the prosecution has

proved the offence punishable under Section 325 of the IPC,

which according to the prosecution case, is committed by the

revision petitioner / accused no.1, in furtherance of his common

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intention shared with his associates. Section 325 of the IPC reads

thus :

"325. Punishment for voluntarily causing grievous hurt - Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

This section deals with punishing an accused who voluntarily

causes grievous hurt to the victim. The term grievous hurt is

defined in Section 320 of the IPC. It reads thus :

"320. Grievous hurt - The following kinds of hurt only are designated as "grievous" :-

First - Emasculation.

Secondly - Permanent privation of the sight of either eye.

Thirdly - Permanent privation of the hearing of either ear.

Fourthly - Privation of any member or joint. Fifthly - Destruction or permanent impairing of the powers of any member or joint.

Sixthly - Permanent disfiguration of the head or face.

Seventhly - Fracture or dislocation of a bone or

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tooth.

Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

It is, thus, clear that, for bringing the hurt in the category of

"grievous hurt" such hurt must be falling under Clause First to

Clause Eighthly of Section 320 of the IPC. It covers fracture or

dislocation of bone or tooth apart from other injuries.

16 In the case in hand, evidence of PW2 Ganesh Gosavi

shows that he had suffered fracture injury to his left arm near

elbow. This evidence is supported by medical evidence on record.

PW6 Dr.Kishore Chabukswar has deposed that initially he

suspected fracture of radius ulna and then on perusal of X-ray of

PW2 Ganesh Gosavi, he came to the conclusion that PW2 Ganesh

Gosavi suffered fracture of middle third of ulna. As such, no

infirmity can be found in conviction of the revision petitioner /

accused no.1 in respect of the offence punishable under Section

325 of the IPC, as this hurt falls in Clause Seventhly of Section

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320 of the IPC defining "grievous hurt." Medical evidence

coming on record from the mouth of PW6 Dr.Kishore Chabukswar

supports the evidence of PW4 Shivgir Giri that he had suffered

wound in the assault which is proved to have been caused by the

revision petitioner / accused no.1 in association with two other

persons. Requirement of proof of the offence punishable under

Section 323 of the IPC is causing of hurt. This section does not

require any medical evidence because "hurt" as defined by Section

319 of the IPC means bodily pain, disease or infirmity to any

person. Evidence of PW3 Sheetal shows that because of assault

on her, she suffered injuries to her head and stomach. Hence,

with proof of injuries to PW4 Shivgir Giri and hurt to PW3

Sheetal, the prosecution has also proved the offence punishable

under Section 323 read with 34 of the IPC, committed by the

revision petitioner / accused no.1.

17 Now let us examine whether sentence imposed on

revision petitioner / accused no.1 is excessive and undue harsh.

Section 323 of the IPC provides for punishment of imprisonment

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of either description for a term which may extend to one year or

with fine which may extend to One thousand rupees or both. For

this offence, the revision petitioner / accused no.1 is sentenced to

suffer simple imprisonment for six months apart from imposition

of fine of Rs.1,000/-, in default, he is directed to undergo further

simple imprisonment for one month. No infirmity can be found

with this sentence. It is well settled that the sentence must

commensurate with the offence proved to have been committed

by the accused. The nature and circumstances in which the crime

is committed is also relevant in awarding sentence. It is well

settled that deterrence and reformation are two fundamental

objectives of punishment. Rights of victims and society at large

are also required to be kept in mind while awarding punishment.

In the case in hand, for the offence punishable under Section 325

of the IPC, the revision petitioner / accused no.1 is sentenced to

suffer simple imprisonment for a period of two years apart from

imposition of fine of Rs.2,000/- and in default, to suffer further

simple imprisonment for a period of one month. The crime in

question took place on 27th January 2003. We are in the year

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2017. In the matter of Manjappa (supra) relied by the learned

advocate for the revision petitioner / accused no.1 this aspect of

passage of time from commission of offence and the ultimate

conviction was considered by the Hon'ble Apex court in paragraph

14 of its judgment. In that matter, compensation was imposed

and the accused was made liable to pay it to the victim and

sentence of simple imprisonment for one year came to be reduced

to six months for the offence punishable under Section 325 of the

IPC. In the matter of Basayya Hallur (supra) relied by the

learned advocate for the revision petitioner / accused no.1, for the

offence punishable under Section 324 read with 149 of the IPC,

considering the delay in disposal of the matter finally, as well as

the fact that accused therein were on bail, the sentence came to be

reduced to the period already undergone with a direction to pay

fine of Rs.25,000/- by each of the accused persons and that fine

was made payable to the wife of the deceased. In the case in

hand, the incident had an origin in quarrel between wife of the

revision petitioner / accused no.1 and wife of injured PW2

Ganesh Gosavi. They are stated to be neighbours. The incident

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dates back to the beginning of the year 2003. Fourteen years have

passed since the incident and during this intervening period, no

untoward incident is reported. Therefore, keeping in mind the

circumstances in which the crime in question took place, for the

offence punishable under Section 325 read with 34 of the IPC,

sentence of two years imposed by the courts below appears to be

harsh and excessive. Taking guidance from the course of action

taken by the Hon'ble Apex Court in the matter of Basayya Hallur

(supra) and as argued by the learned advocate for the revision

petitioner / accused no.1, fine imposed on the revision petitioner /

accused no.1 for the offence punishable under Section 325 of the

IPC is increased to Rs.50,000/- and major portion of the same can

be made over to PW2 Ganesh Gosavi - an injured informant and

injured PW4 Shivgir Giri. This course of action would meet the

ends of justice and the substantive sentence of imprisonment for

the offence punishable under Section 325 read with 34 of the IPC

can be reduced to the period of six months. Hence the order :

ORDER

The Revision Petition is partly allowed as under :

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i) The conviction of the revision petitioner / accused no.1 Janardhan Pasare for the offence punishable under Sections 323 and 325 read with 34 of the IPC is maintained and confirmed.

ii) Similarly, sentence imposed upon him for the offence punishable under Section 323 read with 34 of the IPC is confirmed.

iii) However, for the offence punishable under Section 325 read with 34 of the IPC, the revision petitioner / accused no.1 Janardhan Pasare is directed to under go simple imprisonment for a period of six months and to pay a fine of Rs.50,000/-, in default, to undergo further simple imprisonment for one year.

iv) On realization of the fine amount of Rs.50,000/-, Rs.40,000/- therefrom be paid to PW2 Ganesh Gosavi - an injured informant and PW4 Shivgir Giri - another injured in equal proportion.

v) Substantive sentences to run concurrently.

vi) The revision petition is disposed of accordingly.

vii) In view of disposal of revision petition, pending Criminal Application Nos.129 of 2017 and 130 of 2017 stand disposed of.

                                             (A. M. BADAR, J.)




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