Arun S/O Punjabrao Chambhare vs State Of Maharashtra
2017 Latest Caselaw 5874 Bom

                                                                                            CRI.APPEAL.222.03+
                                                             1


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                             CRIMINAL APPEAL NO. 222/2003
                                         with
                             CRIMINAL APPEAL NO. 233/2003

CRIMINAL APPEAL NO. 222/2003

          Parasram s/o Ramchandra Chaudhari
          Aged about 47 years R/o Dorli 
          Tah.Dorli Dist.Wardha.                                                     ..         APPELLANT 

                     v e r s u s

          State of Maharashtra 
          Through  P.S.O. Pulgaon,
          Dist.Wardha.                                                            ..           RESPONDENT

CRIMINAL APPEAL NO. 233/2003


          Arun s/o Panjabrao Chambhare 
          Aged about 50 years R/o Dorli 
          Tah.Dorli, Dist.Wardha.                                                    ..         APPELLANT 

                     v e r s u s

          State of Maharashtra 
          Through  P.S.O. Pulgaon,
          Dist.Wardha.                                                            ..           RESPONDENT

...........................................................................................................................
           Mr. R.M.Daga, Advocate for appellant/s
           Mr. S.B.Bissa,  Additional  Public Prosecutor for  respondent-State
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     11th August, 2017





                                                                       CRI.APPEAL.222.03+



ORAL  JUDGMENT: 

Appeal No.222/2003 has been preferred by the appellant/original

accused no.5-Parasram Chaudhari, whereas Appeal No. 233/2003 has been

preferred by the appellant-original accused no.4-Arun Chambhare, against the

judgment and order passed by learned 1st Ad-hoc Additional Sessions Judge,

Wardha in Sessions Trial No. 78/2002 on 5th March 2003 in Sessions Trial No.

78/2002, thereby convicting the appellants under Section 324 read with

Section 34 of the Indian Penal Code. They were sentenced to suffer R.I. for two

years and to pay a fine of Rs.2,000/-, in default, to suffer further R.I. for six

months.

2. I have heard Shri R.M. Daga, the learned counsel for the appellants as

well as Shri S.B. Bissa, the learned Additional Public Prosecutor for the

respondent-State. With their assistance, I have perused the entire record of the

case.

3. The learned counsel for the appellants vehemently argued that the

impugned judgment and order passed by the learned trial Judge is illegal and

perverse, inasmuch as the learned trial Judge has failed to consider the

discrepancies in the testimony of PW 3-Sunanda Chapale, who is an alleged

eye witness to the incident and who lodged the FIR (Exh.36) and due to the

discrepancies in her testimony, it cannot safely be said that the appellants

have has committed the offence as such. He further submitted that so far as

the appellants are concerned, no weapon has been recovered at their instance

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and the accused are not at all involved in the alleged offence.

4. Per contra, the learned A.P.P. submitted that the learned trial Judge has

rightly convicted the appellants as the involvement of the appellants is seen

from the testimony of the eye witness, who is the wife of the deceased and a

natural witness as well as author of the the complaint/FIR (Exh.36). The

learned APP submitted that there was no reason for the wife of the deceased to

falsely implicate the appellants in the present case and her presence on the

scene of the offence is a natural one. The learned APP submitted that there is

no question of any improvements made in the testimony of PW-3-Sunanda, as

her complaint was recorded on the same day so also her statement was

recorded on the very next day of the incident. In order to consider the rival

contentions of the respective parties, it is necessary to go through the

testimony of alleged eye witness PW3-Sunanda Chafle, carefully.

5. First, coming to the prosecution case which can be gathered from the

testimony of PW 3-Sunanda, briefly stated thus:

Deceased-Ganesh Barkuji Chafle along with his wife PW3-Smt. Sunanda

Chafle (complainant) and his children was residing at village Dorli. The

accused persons were also from the same village. They all were agriculturists.

Deceased-Ganesh was mentally weak. On the date of the incident i.e. on

29.12.2001 at about 12.30 p.m. the complainant along with her husband

went to their field to harvest the toor crop. As Ganesh was feeling somewhat

uneasy, he took rest in the field. They returned to their house from the field at

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about 3.30 p.m. After about an hour Ganesh proceeded towards his field to

bring two sickles from the field as he had forgotten to bring them from the

field. Sunanda was at home. After some time, Sunanda heard the shouts and

therefore, she rushed to that direction. The spot was near the cattle-shed of

appellant-Parasram and one Arun Chambhare. When Sunanda reached the

cattle-shed, to her utter dismay, she saw that Arun had caught hold of both

the legs of Ganesh, who was lying on the ground in a position back towards

the sky. Parasram was assaulting Ganesh on his head by means of a stick. After

some time, Dilip Patil, Raja Patil and Deva Patil (original accused nos. 1 to 3)

came to that place and asked Ganesh as to why he obstructed their sister.

After abusing him, they all started assaulting on his head and back by means

of sticks. Ganesh became unconscious. After some time Ganesh was brought

to the house of Sunanda. Sunanda proceeded to the Police station and

lodged her complaint, which was reduced into writing by Head Constable

Taksande (PW 4). PW 4-Taksande, then, registered the offence on the basis

of the said complaint vide Crime No.307/2001. Ganesh was taken to the

hospital; however he was declared as dead. After conducting the investigation

the charge-sheet was filed. The charge was framed by the learned trial

Judge. In all, seven witnesses were examined by the learned trial Judge and

he convicted the accused, as aforesaid. The charge was framed against all the

five accused. Out of them original accused nos. 1 to 3 namely, Dilip Patil Raju

Patil and Devidas Patil, were acquitted by the trial court and the original

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accused nos. 4 and 5 were convicted, as aforesaid.

6. The prosecution has heavily relied upon the testimony of PW3-Sunanda,

who is the sole eye witness to the incident. According to PW3, the incident

took place on 29.12.2001 at about 12.30 p.m. PW3 along with her husband

went to the field for harvesting of Toor crops. After some time her husband

fell unconscious, therefore, he was taking rest in the field. At about 3.30 p.m.

both of them returned back to their house and after about half-an-hour her

husband proceeded to the field as sickles remained in the field. After some

time, PW 3 heard the shouts and therefore she hurriedly came out and of her

house and reached near the cattle-shed of Parasram(appellant). She saw that

Arun (appellant) had caught hold the legs of her husband and made him to

fall down in prone position. Parasram then gave a stick blow on the head of

her husband, which caused injury. After some time Dilip Patil, Raja Patil and

Devidas Patil arrived at that place with sticks. Thereafter Arun and Parasram

lifted her husband and brought him to her house and kept him in the

courtyard. Her husband was shifted to Rural Hospital at Pulgaon. The Doctor

examined him and declared as dead. PW3 proceeded to the Police Station,

Pulgaon and lodged her complaint (Exh.36). During the cross-examination, a

case was put up to PW3 that as her husband was suffering from epilepsy, he

fell down and received injury to his head. It was also put up that when

Ganesh went to his field he saw one lady proceeding towards the field of

appellant-Parasram. Ganesh followed her. However as soon as that lady

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realised that Ganesh was following her, in order to hide herself, she went in

the cattle-shed of Parasram and Ganesh fell down as he received an epilepsy

stroke. The suggestions put up to PW3 in this regard were denied by her. No

discrepancies are noticed in the cross-examination of PW3.

7. On careful scrutiny of testimony of PW3, it is noticed that there are no

material discrepancies in her deposition before the Court. No doubt, PW3 has

stated before the Court that Dilip Patil, Raja Patil and Devidas Patil were

holding sticks when they reached the place of the incident, whereas the

complaint (Exh.36) reveals that those three persons started beating Ganesh on

his head and back. It is noticed that although in the complaint PW3 has not

stated about these three persons Dilip, Raja and Devidas, holding sticks in

their hands; however the said fact has not been challenged in the cross-

examination by the defence by pointing out to the witness that it was an

improvement made by her. Significantly, the learned counsel for appellant has

not disputed that the said fact has been noticed in the statement before the

police which was recorded on the very next day. Thus, it appears that the PW

3 has given the details about the incident on the next day to the police and

accordingly the police recorded her statement. As mentioned herein-above, the

complaint was recorded on the same day. Thus, holding of the sticks by Dilip,

Raju and Devidas cannot be termed as improvement in the version of PW3.

The only discrepancy which can be seen is that in the complaint a role is

assigned to Dilip, Raja and Devidas that they were beating Ganesh on his head

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and back, whereas the role attributed by PW3 in the Court to these persons

is that they were holding sticks and standing besides Ganesh. So far as the

role of the appellants-Parasram and Arun is concerned, PW3 has specifically

stated that Arun had caught hold of the legs of her husband and made him to

fall down facing towards the ground and Parasram gave stick blow on the

head of her husband. The said testimony has not been shattered in the cross-

examination. On careful scrutiny of testimony of PW3, it is found that she is

found to be a reliable and trustworthy witness and her testimony is

corroborated on material aspects with the FIR (Exh.36) which was promptly

lodged on the very same day.

8. Mr. Daga, the learned counsel for the appellants urged that the inquest

panchnama (Exh.40) does not reveal any injury to the head of the deceased,

whereas the medical certificate shows only one injury on the occipital region

of the deceased. Shri Daga, submitted that there is discrepancy in the

description of the injury caused to the deceased in the inquest Panchnama

and the P.M. report (Exh.26). On perusal of the Inquest Panchnama (Exh.40),

it is noticed that the hair of the deceased was smeared with blood. However

the head is intact. The Inquest Panchnama shows that the blood was seen

oozing from the injury mark caused on the back side of the head of the

deceased. In view thereof, it cannot be said that there was no injury to the

head of the deceased.

9. As far as the medical evidence is concerned, the prosecution has

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examined PW 1-Pravina Tekam, who is the Medical Officer and who

conducted autopsy on the dead body of Ganesh, found the following external

injuries on the body of Ganesh:-

"(1) Lacerated wound over occipital region on scalp 4" behind left ear, size 2"

x1/2x1/2"

(2) Contusion - (a) Lateral aspect of thigh, approximately 6" x 1" size.

         (b)     over right  arm  of the size  5" x 1". 
         (c)     right elbow region of t6he size 4" x 1" 
         (d)     over middle  third of left leg of the size 5" x 1" .
         (e)     Contusion  over left thigh region approximately 6" x 1" .
         (f)     Contusion  over left  arm of the size 6" x 2"./
         (g)     Contusion over back over  four regions

(g-1) over right side or right aspect of the size 6" x1" (g-2) over left side of size 6" x 1"

(g-3) Two contusions over middle region 5"x1" in size.

2. Fracture over skull parietal region".

The Doctor opined that the above injuries were ante-mortem in nature.

On internal examination, PW1 found that there was haematoma under

scalp extending over fronto-parietal region of scalp. There was fracture over

parietal region of skull. Both right and left parietal bones were involved in

the size approximately 4" x 1.5" It was depressed type of fracture. The brain

was found congested. There was sub-dural haematoma present.

PW 1 examined the sticks and opined that the injuries in column no.

17,18 and 19 of P.M. report could be caused by the said sticks.

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10. On going through the medical evidence, it is noticed that the medical

evidence corroborates with the testimony of PW1.

11. No doubt, the sticks which were taken charge of by the Investigating

agency were from Raju Patil (accused no.2) and Devidas (accused no.3). PW

5-PSI Dindayala Gupta, had specifically stated that stick (art.1 and 2) were

taken charge from Raju (accused no.2) and Devidas (accused no.3), at their

instance, vide Panchnama Exhs. 67 and 69 respectively. No weapons were

taken charge at the instance of the present appellants. It is significant to note

that seizure panchnama (Exh.46) depicts the bloodstains on the pyzama of

appellant-Parasram and the seizure Panchnama (Exh. 47) reveals bloodstains

on pyzama as well as shirt of accused-Arun, but no blood group is detected

in the CA report. There is no explanation on record as to how the clothes of

appellants were stained with blood. It confirms their presence on the spot

and their involvement in the offence.

12. On careful scrutiny of the testimony of the entire evidence on record,

it is noticed that both the appellants are involved in the alleged offence.

Specific roles to both the appellants were attributed by PW3-Sunanda in her

testimony before the Court which corroborates with her complaint which was

lodged promptly. The medical evidence also corroborates the testimony of PW

3. From the evidence on record, it is clear that both the accused shared the

common intention.

13. So far as the quantum of sentence is concerned, Shri Daga, the learned

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counsel submitted that both the appellants are aged about 70-years old as on

today and no fruitful purpose would be served by asking them to undergo the

remaining sentence awarded to them. He further submitted that the incident is

of 2001, whereas the sentence has been awarded by the trial Court in the year

2003. Shri Daga urged that even the weapons are not recovered from the

present appellants. In these circumstances, he submitted that leniency be

shown and the sentence of the appellants should be restricted to the period

which they have already undergone. Shri Daga submits that the appellants

were in jail from 2.1.2002 till 15.5.2003 i.e. they were in jail for a period of

one year four months and thirteen days. When the appellants preferred

appeal, they were released on bail on 15.5.2003. In these circumstances, Shri

Daga submitted that the quantum of sentence be restricted to the period

which they have already undergone.

14. Considering the submissions of Shri Daga and also taking into

consideration that the State has not preferred an appeal against the accused, I

am of the view that ends of justice would be met if the sentence of the

appellants is reduced to the period already undergone. Needless to add, Shri

Daga submitted that the appellants have paid the amount of fine on 5.3.2003.

15. In this regard, an useful reference can be made to the judgment

reported in 1995 Cri.L.J. 2630 in the matter of B abu Singh and others vs. State

of Haryana. In that case, the accused were tried for the offence u/s 307, 324

r/ws. 34 IPC. The Hon'ble Supreme Court altered the conviction of the

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appellants to one punishable u/s 324 r/ws. 34 of IPC and instead of allowing

the appellants to execute the bond as directed by the trial court, sentence was

reduced to the period already undergone.

16. In the case of Amruta Deshmukh and another vs. State of Maharashtra,

reported in 2011 Cri.L.J. 1157, the appellants were convicted under section

324 of IPC. The injuries caused to the accused were not explained by the

prosecution. The recovery of weapon of offence was not proved by the

prosecution. The sentence was awarded in the year 1999 and the appeal was

heard in the year 2011. In view of the mitigating circumstances, this Court

reduced the sentence up to six months which was already undergone by the

appellants.

17. In the result, the following order is passed:

(a)      The Appeal is  partly allowed. 

(b)      The conviction of the appellants for offence punishable u/s   324 read 

with Section 34 of the IPC, is maintained. However the sentence is reduced to

the period already undergone by the appellants.

(c) The bail bonds of the appellants shall stand cancelled.

JUDGE

sahare