Bombay High Court
Shivdas S/O Nasikarao Ghawat vs State Of Maharashtra Thr.Pso.Ps ... on 3 July, 2017
Bench: V.M. Deshpande
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.98 OF 2001
Shivdas s/o Nasikrao Ghawat
Aged 26 years, Resident of Mauza
Warud, P.S. Mangrulpir,
District Washim. ..... Appellant.
:: VERSUS ::
State of Maharashtra,
Through P.S.O.
Police Station, Mangrulpir, ..... Respondent.
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Shri Ranjit Singh, Counsel for the appellant.
Shri R.S. Nayak, Addl.P.P. for the respondent/State.
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CORAM : V.M. DESHPANDE, J.
DATE : JULY 3, 2017.
ORAL JUDGMENT
1. Being aggrieved by judgment and order of
conviction passed by learned Sessions Judge, Akola, in
Sessions Trial No.44 of 2000 dated 29.3.2001, whereby the
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present appellant was convicted for the offence punishable
under Section 325 of the Indian Penal Code and was directed
to suffer rigorous imprisonment for three years and to pay a
fine of Rs.500/- and in default of payment of fine amount to
suffer rigorous imprisonment for two months, the appellant is
is before this Court.
2. Initially, the charge was framed by learned Judge
of the Court below under Exhibit 5 for the offence punishable
under Section 307 of the Indian Penal Code for assaulting
PW1 Wamanrao Sampatrao Dongre on 18.11.1999 at 12:30
hours at village Patonda Shiwar. The prosecution has
examined in all 13 witnesses to bring home the guilt of the
appellant. However, learned Judge of the Court below
acquitted the appellant for the offence punishable under
Section 307 of the Indian Penal Code since the prosecution
could not prove its charge against the present appellant.
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However, it was the view of learned Judge of the Court below
that the prosecution has successfully demonstrated that the
appellant can be convicted for the offence punishable under
Section 325 of the Indian Penal Code. Though the punishment
was not awarded to the appellant for the offence punishable
under Section 307 of the Indian Penal Code, the State did not
prefer any appeal against the order of learned Judge of the
Court in not convicting the appellant for the offence
punishable under Section 307 of the Indian Penal Code.
3. I have heard learned counsel Shri Ranjit Singh for
the appellant and learned Additional Public Prosecutor Shri
R.S. Nayak for the respondent/State. With their able
assistance, I have gone through the record and proceedings.
4. The main submission of learned counsel Shri
Ranjit Singh for the appellant is, though looking to the fact
that the alleged assault was made during the daytime, no
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independent witness was examined by the prosecution in
spite of their availability. For that, he invites my attention to
the evidence of PW10 Investigating Officer Ganesh Pralhad
Bhavsar to point out that the person, in whose agricultural
field the incident has occurred, he has was not recorded his
statement. He, therefore, submits that only on the interested
version of the complainant the appellant is convicted.
5. There is a long standing dispute in between family
of the appellant and family of PW1 injured Wamanrao.
Though enmity is double edged weapon, on appreciation of
evidences, this Court found on the basis of enmity false
implication at the best of Wamanrao is completely ruled out.
6. PW1 injured Wamanrao was admitted in the
hospital on 18.11.1999 and he was discharged on 24.11.1999.
The said fact is duly proved by PW11 Orthopaedic Surgeon Dr.
Ranjit Vitthalrao Patil. His evidence shows that PW1
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Wamanrao had fractures of both bones of right leg (tibia and
fibula) and he was required to be operated upon. Though
learned counsel Shri Ranjit Singh for the appellant tries to
point out to disbelieve the version of doctor on the basis that
X-Ray plates were not having any numbers, merely on the said
basis otherwise consistent evidence of doctor cannot be
discarded.
7. It is the submission of learned counsel for the
appellant that on the basis of evidence of PW3 Dr. Vivek
Ramchandra Phadke that injury No.4, which he noticed while
giving injury certificate Exhibit 20, can occur if a person falls
from height or speeding vehicle, this particular suggestion is
not given to PW1 injured Wamanrao that he received from
speeding vehicle.
8. The appellant was in jail from 18.11.1999 till
18.12.1999.
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9. There is no minimum jail punishment for the
offence punishable under Section 325 of the Indian Penal
Code. The incident has occurred in the year 1999. The
appellant and PW1 injured Wamanrao were from the same
village and till today no other untoward incident has reported
and has occurred in between the family. Looking to this
particular aspect, I am of the view that some discretion can be
exercised in favour of the appellant. Hence, I pass the
following order :
ORDER
i) The criminal appeal is partly allowed.
ii) Though judgment and order of conviction
convicting the appellant for the offence
punishable under Section 325 of the Indian Penal
Code is maintained, quantum of sentence is
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hereby modified.
iii) The jail sentence shall be the period which the
appellant has already undergone. The other part
of sentence in respect of fine is maintained.
The criminal appeal is partly allowed.
JUDGE
!! BRW !!
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