Bombay High Court

Gopal Shamrao Kachole And Another vs State Of Mah.Thr.Pso Wardha on 20 December, 2017

Bench: R. B. Deo

                                         1                                  apeal503.04




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.503 OF 2004


 1) Gopal s/o Shamrao Kachole,
     Aged about 30 years, 

 2) Sau. Rukhmabai w/o Gopalrao
     Kachole, Aged about 31 years, 
     
     Both resident of Burkoni, 
     Police Station Hinganghat,   
     Tahsil - Hinganghat, District-
     Wardha.                                                ....       APPELLANTS


                     VERSUS


 State of Maharashtra, 
 At the instance of Police Station Officer, 
 Police Station Hinganghat, District 
 Wardha.                                                    ....       RESPONDENT


 ______________________________________________________________

              Shri J.D. Bastian, Advocate for the appellants, 
   Shri A.V. Palshikar, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                              CORAM :    ROHIT B. DEO, J.

                            DATED  :      20
                                                DECEMBER, 2017
                                             th



 ORAL JUDGMENT :

The appellants are aggrieved by the judgment and order

dated 17-7-2004 passed by the learned 2 nd Ad hoc Additional Sessions

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Judge, Wardha in Sessions Trial 103/2003, by and under which the

appellants are convicted for offence punishable under Section 324 read

with Section 34 of the Indian Penal Code ("IPC" for short) and are

sentenced to suffer rigorous imprisonment for two years and to

payment of fine of Rs.500/- each.

2. Heard Shri J.D. Bastian, learned Counsel for the appellants

and Shri A.V. Palshikar, learned Additional Public Prosecutor for the

respondent.

3. Shri J.D. Bastian, learned Counsel for the appellants

(hereinafter referred to as the "accused") submits that the evidence on

record is marred by omissions and exaggerations and the learned

Sessions Judge erred in recording a finding of guilt. The evidence is

not confidence inspiring and the accused ought to have been extended

the benefit of doubt, is the submission. In the alternate, the submission

is that the incident occurred fifteen years ago in the heat of the

moment and it is apparent that there was some provocation which may

have made the accused to react violently. The accused have three

children and are living a life of honest and law abiding citizens. If the

conviction is to be maintained, the accused be granted the benefit of

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the probation under Section 4 of the Probation of Offenders Act, is the

submission.

4. After hearing the learned Counsel for the accused Shri

J.D. Bastian and the learned Additional Public Prosecutor for the

respondent Shri A.V. Palshikar, I have called for the reports of the

District Probation Officers, Wardha and Yavatmal, by the order dated

28-11-2017. The perusal of the reports would reveal that the District

Probation Officers have opined that the accused deserve to be released

on probation.

5. Shri J.D. Bastian, learned Counsel did make an attempt to

persuade me to hold that the conviction of the accused under Section

324 of the Indian Penal Code is bad in law and that the judgment

impugned is against the weight of the evidence on record. However,

after giving my anxious consideration to the evidence on record, I do

not find any infirmity in the conviction recorded by the learned

Sessions Judge.

6. The genesis of the prosecution lies in the oral report dated

17-8-2002 lodged by the injured Tukaram Kumbhalkar, who is

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examined as P.W.1. The gist of the oral report is that at 7-30 a.m. on

17-8-2002 injured Tukaram went to his field with bullocks, he tethered

the bullocks and started inspecting the field. The bullocks of accused

Gopal Kachole entered the field of the injured at 9-30 a.m. or

thereabout. Since there were standing cotton crops in the field of the

injured, he informed Gopal that the bullocks had entered his field.

However, Gopal and his wife abused and assaulted the injured

Tukaram. The report states that Gopal Kachole delivered a sickle blow

on the head of Tukaram and the wife of Gopal delivered blows above

the right eye and on the left portion of forehead by sickle. Tukaram

also received injuries on the left wrist, left little finger and right

forearm. The report further states that when Tukaram fell down due to

giddiness, he was assaulted by Gopal with stick.

7. The injured Tukaram is examined as P.W.1. The

deposition is broadly consistent with the contents of the oral report.

Certain omissions are brought on record. But then, the omissions do

not affect the credibility of the evidence since they do not touch the

core of the incident. The deposition as regards the assault is cogent,

consistent and reliable and nothing is brought on record in the cross-

examination to disbelieve the evidence of P.W.1 that he was assaulted

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by the accused with sickle.

The evidence of P.W.1 Tukaram is corroborated by

Sunanda Kamdi, who is examined as P.W.2, as an eyewitness.

However, while the evidence of P.W.2 corroborates that of P.W.1 to the

extent the accused assaulted the injured Tukaram with sickle, it is also

extracted from P.W.2 that there was a scuffle and that in her previous

statement to the police, she stated that the complainant Tukaram

inflicted a stick blow on the waist of Gopal.

The evidence of the injured is further corroborated by

P.W.3 Dr. Snehal Bonde, who after examining the injured Tukaram

issued injury certificate Exhibit 31, in which the following injuries are

mentioned :

1) Lacerated wound 4 x 4 x ½ cm. in size over left forearm.

2) Lacerated wound about 3 x 2 x ½ cm. over left little finger.

3) Lacerated wound about 1 x ½ x ¼ cm. (depth) above right eyebrow.

4) Lacerated wound 1 x ½ x ¼ cm. (depth) over scalp left side.

5)Contusions longitudinal 3 to 4 in numbers, 5 x 6 cm. over back.

8. On a holistic consideration of the evidence on record, I do

not find any error in the view taken by the learned Sessions Judge that

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the accused assaulted Tukaram and that both the accused deserve to be

convicted for offence punishable under Section 324 of the Indian Penal

Code. The defence that accused Rukhmabai was assaulted by the

complainant, Gopal rushed to rescue his wife leading to the scuffle, is

disbelieved by the learned Sessions Judge. The bleeding which accused

Rukhmabai suffered in custody is held to be unconnected with the

incident. Accused Rukhmabai was promptly medically examined after

arrest and no external injury was detected. She was, however,

admitted in the hospital on 20-8-2002. The learned Sessions Judge has

considered the circumstances in which accused Rukhmabai was

admitted in the hospital thus :

"17) From the evidence of P.W.5 Shri Patil it seems that, he has referred both the accused for their medical examinations after their arrest. Their medical certificates are placed on record. On examination, no external injuries were found on their persons. He has admitted in his evidence that during police custody, accused no.2 Sau. Rukhmabai suffered bleeding. Therefore, on 20-8-2002, she was admitted in the hospital for her bleeding. He has deposed in his evidence that he has not ill-treated Rukhmabai during his custody. Ex.50 goes to show that Rukhmabai Gopal was admitted in the hospital since 20-8-2002. She is having incomplete abortion with intrauterine infection and needs to be evacuated after antibiotic coverage. Hence, she is admitted and will be operated tomorrow. This certificate is issued on 21-8-2002. As per the medical certificate (Ex.68), no external injuries were found on the person of Rukhmabai on examination by

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Dr. S.V. Bonde. As per her defence, if really she was pushed by Tukaram and due to that she received bleedings, she could have complained before the police on the day of her arrest. She could have suffered stomachache since the date and time of incident. But, she has not complained for the same either before Investigating Officer or before the Medical Officer when she was arrested and when she was medically examined by the Investigating Officer and Medical Officer respectively. At least, on examination, the Medical Officer could have found abrasions on the person of Rukhmabai. But, the Medical Officer has not found any external injuries on the person of Rukhmabai. Therefore, the defence taken by accused Rukhmabai seems to be not reliable."

9. However, in the factual matrix, the accused deserve to be

granted the benefit of probation. I have already noted that the report

of the District Probations Officer is positive. The incident occurred

more than fifteen years ago. The incident is blurred on certain aspects

and the possibility of a provocation leading to the aggression cannot be

ruled out. The accused are living an honest and law abiding life since

the incident. If the accused are sent to prison, it is quite possible that

they would turn into obdurate criminals. In the circumstances, I am

inclined to maintain the conviction and instead of sentencing the

accused to imprisonment, to release the accused on probation under

Section 4 of the Probation of Offenders Act and to direct them to enter

into a bond to appear and receive sentence when called upon during