Dhondu S/O Patru Waghmare vs The State Of Maharashtra
2017 Latest Caselaw 5952 Bom

 japeal273of2000..odt                      1



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


                     CRIMINAL APPEAL NO.273 OF 2000


 Dhondu s/o. Patru Waghmare,
 Aged about 43 years,
 Resident of Krushna Nagar Ward,
 Chandrapur,
 Tah. Dist. Chandrapur                                       ....... APPELLANT


                  ...V E R S U S...


 The State of Maharashtra,
 through Police Station Officer,
 Police Station Ramnagar, Chandrapur                         ......   RESPONDENT

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          Shri. S.O. Ahmed, Counsel for Appellant.
          Shri. H.R. Dhumale, APP for the State.
 -------------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                th
                                                     16    AUGUST, 2017.


 ORAL JUDGMENT

1. By the instant appeal, appellant assails the judgment

and order dated 31.8.2000 in Session Trial 104 of 1995 delivered

by the Additional Sessions Judge, Chandrapur, by and under

which the appellant is convicted under section 324 of the Indian

Penal Code and sentenced to suffer rigorous imprisonment for six

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

appellant is to undergo further rigorous imprisonment for one

month.

2. The case of the prosecution as is unfolded during the trial is

that appellant - accused (hereinafter referred to as the accused)

was running a pan shop which was dismantled and wooden planks

were kept by the accused at the residents of deceased Manohar.

On 1.4.1993 at about 9 to 10.30 a.m. when the accused went to

the house of the deceased and demanded wooden planks, the

deceased Manohar gave him some wooden planks. However,

since the accused claimed that there were more planks which

claim was denied, an altercation ensued between accused and the

deceased Manohar. The accused abused the deceased Manohar

and inflicted blow of wooden plank to Manohar on his head.

Manohar fell down and became unconscious. The accused ran

away from the spot. The incident was witnessed by son of

Manohar, Rupchand and other residents of the locality. Manohar

was taken to Chandrapur and examined by doctor who issued

injury certificate. Manohar was shifted to Nagpur hospital and he

expired on 8.4.1993.

3. Rupchand had lodged a oral report on the date of

incident on the basis of which initially offence under Section 324

of the Indian Penal Code was registered. An investigation ensued

during which spot panchanama was conducted, wooden plank

with blood stains were seized from the spot, blood mixed mud was

seized from the spot, statements of witnesses were recorded and

the accused was arrested. The clothes of the accused were seized,

his blood sample was taken, an inquest panchanama was prepared

after the death of Manohar at Nagpur. Post mortem examination

was conducted which mentions the cause of death as "skull

fracture with infracranial hemorrhages". The completion of

investigation led to chargesheet being filed in the Court of Judicial

Magistrate First class, Chandrapur for offence punishable under

Section 302 of the Indian Penal Code. Since the said offence is

exclusively triable by the Sessions Court, the proceedings were

committed to the Sessions Court.

4. The trial Court framed charge vide Exh. 5. The

accused pleaded not guilty and claimed to be tried, the defence of

the accused is of total denial and false implication. In the

statement under section 313 of Criminal Procedure Code, the

accused admits that he did go to the house of the deceased to

collect the wooden planks, however, he denies the assault by

wooden plank. His defence is that when he was taking his

wooden planks, deceased obstructed him, the deceased fell down

and sustained injury.

5. I have heard learned counsel Shri. S.O. Ahmed for the

appellant accused and the learned APP Shri. H.R. Dhumale for the

prosecution. Shri. Ahmed submits that evidence led by the

prosecution is not confidence inspiring and is vitiated by

inconsistencies and inter se contradictions. According to the

learned counsel, both the alleged eye witnesses namely, PW 1 -

Rupchand Manohar Sakharkar and PW 2 - Suresh Govindrao

Chandankhede, are interested witnesses. He would urge that PW1

is the son of the deceased and PW2 Suresh Chandankhede is a

neighbour and friend of the deceased. Shri. Ahmad would urge

that the evidence of interested witnesses must receive

corroboration in every material aspect, which corroboration

according to Shri. Ahmed is lacking in the factual scenario of the

case at hand. The learned APP would submit that difference

between a related witness and an interested witness is well

recognized in law. He would submit that PW 1 & PW 2 are

natural witnesses and the fact that PW 1 is the son of the deceased

and PW 2 is a friend or neighbour of the deceased is not sufficient

to brand them as interested witnesses. Learned APP, Shri.

Dhumale, invites my attention to a judgment of the Hon'ble Apex

Court State of Rajasthan Vs. Smt. Kalki & Another, (1981) 2

SCC 752. The relevant observations of the Hon'ble Supreme Court

read thus:

"7. As mentioned above the High Court has declined to rely on the evidence of PW1 on two grounds : (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be 'interested'. In the instant case PW1 had no interest in protecting the real culprit, and falsely implicating the respondents."

6. The learned APP would further urge that the

testimonies of PW 1 & PW 2 are consistent, reliable and confidence inspiring. The learned APP would submit even otherwise that the ocular evidence is sufficiently corroborated by the medical evidence. My attention is invited to the Injury Certificate dated 1.4.1993 (Exh. 23) and the testimony of PW 6 Dr. Sunil Sanghai who examined Manohar when he was admitted in General Hospital, Chandrapur. PW 6 describes the injuries as:

"1. Lacerated wound on left temporo parietal region of size 11 x 1 c.m. it was bone deep and bone was exposed. It was straight."

"2. Lacerated wound on left fronto temporal region of size 1.5 x 0.5 c.m. and it was curved. General condition of the patient was not satisfactory bleeding from nose was present and patient was not responding to oral command. There was incoherent slurring of speech. Patient was not moving limbs. X-ray skull was advised.

As per my opinion the injuries mentioned in the injury certificate that the said injury could be caused by hard and blunt object. Age of the injury was fresh and within 6 hours. Healing time of the injury could not be commented and want of further interial damaged assessment. Patient was admitted to General Hospital, Chandrapur."

"3. On examination I issued injury certificate. Injury certificate now shown to me is the same. It bears my signature. It is at exh. 23. Its contents are correct. The injury found on the person of the patient could be caused by

wooden plank. If adequate force is used. The aid injury were of serious nature."

PW 6 deposes that injury found on the patient could be caused by the wooden plank, however, adequate force is to be used.

7. The learned Session Judge, has recorded a finding

that the evidence of PW 1 & PW 2 is reliable and that there is

nothing brought on record in the cross examination to shake the

credibility of the aforesaid two eye witnesses. The learned

Sessions Judge has further, held that the accused did not have the

intention to cause death while inflicting the blow by the wooden

plank. The said finding is unexceptionable. A single blow by a

wooden plank was inflicted. It is not the case of the prosecution

that there was any motive or past enmity which would have

persuaded the accused to assault the deceased with the intention

to cause death. Such intention cannot be attributed to the

accused. Admittedly, there was no premeditated assault. The

deceased was of advance age and the death occurred 8 days after

the alleged incident. The learned Session Judge is right in

recording a finding that the accused deserves to be convicted

under section 324 of the Indian Penal Code.

8. I find no infirmity whatsoever in the conviction

recorded by the learned Sessions Judge under section 324 of the

Indian Penal Code.

9. I, therefore, uphold the conviction of the accused

under section 324 of the Indian Penal Code.

10. At this stage, the learned counsel for the accused Shri.

Ahmed would urge that there is no previous conviction and having

regard to the fact that the accused is now aged 57 years with a

family and settled in life, instead of sentencing him at once to any

punishment, he be released on probation of good conduct.

11. Shri. Ahmed would urge that the incident took place

about 24 years ago when the accused was aged 33 years. The

incident was not the out come of premeditation. The inflicting of

the blow was on the spur of the moment. The plank which the

accused was carrying was used to inflict the blow and it is not as if

the accused went out of the way to use a deadly weapon or to arm

himself with a weapon of assault. Accepting the aforesaid

submission of the learned counsel, I am inclined to direct that the

accused be released on probation of good conduct instead of

sentencing him at once to any punishment. Considering the age of

the accused, and accepting the statement of the learned counsel

that the accused has not suffered any conviction coupled with the

fact that a single blow by wooden plank was inflicted without any

premeditation and on the spur of moment, I do not think that

there is no possibility of reform and rehabilitation.

12. Subject to an affidavit filed by the accused that he has

not been convicted in any other offence, it is directed that the

accused be released on probation of good conduct or entering into

a bond with surety for the sum of Rs. 5,000/-, to appear and

receive sentence when called upon during the period of six months

and in the meanwhile to keep the peace and be of good behaviour.

The conviction is maintained.

The sentence imposed by the learned Sessions Judge in

Session Trial 104 of 1995, is set aside and is substituted by the

directions issued in exercise of powers under section 360 of the

Code of Criminal Procedure.

Appeal accordingly stands disposed of.

JUDGE

Belkhede