Bombay High Court
Gajanan S/O Sukdeo Bhaturkar vs The State Of Maharashtra,Thr.Its ... on 13 June, 2017
Bench: V.M. Deshpande
Criminal Appeal No. 269-1999 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 269 of 1999
Gajanan S/o Sukdeo Bhaturkar,
Aged about 39 years,
Resident of Pimpalgaon Raja,
Tahsil-Khamgaokn,District-Buldhana. .....APPELLANT
...V E R S U S...
State of Maharashtra,
through P.S.O.P.S. Pimpalgaon Raja
Tahsil- Khamgaon ,District -Buldana ...RESPONDENT
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Shri A.R.Fuley Learned Advocate h/f Shri S.V.Sirpurkar Learned Advocate for appellant.
Shri R.S.Nayak, Learned A.P.P. for State/respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 13,2017
ORAL JUDGMENT
The present appeal is directed against the judgment
and order of conviction passed by Additional Sessions Judge,
Khamgaon dated 10/9/1999 in S.T.No.28/94 by which the
Learned Judge has convicted the appellant for the offence
punishable under Section 307 of the Indian Penal Code and
directed that he should suffer R.I. for 5 years and to pay a fine of
Rs. 2000/- and in default to suffer further R.I. for 1 year.
The appellant is also convicted for the offence
punishable under Section 324 of the Indian Penal Code and on
that count sentenced him for 2 years of Rigorous Imprisonment
and fine of Rs. 1000/- and in default to suffer further Rigorous
Imprisonment for 6 months. The Court below directed that these
sentences shall run concurrently.
2. I heard Learned Advocate Shri A.R.Fuley holding for
Shri S.V.Sirpurkar, Learned Advocate for the petitioner and
Learned Additional Public Prosecutor Shri R.S.Nayak for the
respondent/State. With their assistance I have gone through the
record and proceeding.
3. Initially, appellant alongwith two others were also
charged by Learned Sessions Judge for the offence punishable
under Sections 307 and 324 of the Indian Penal Code. By the
impugned judgment the Court below acquitted original accused
no.2 Sukdeo Rodaji Bhaturkar and original accused no.3 Vilas
Mahadeo Hiradkar from all offences. The State has not preferred
any appeal against their acquittal.
4. F.I.R.(Exh.24) was lodged by Shyam Tulshiram
Taularkar (PW4) on 28/4/1994 with P.S.Pimpalgaon Raja. The
police authority on the basis of the said report registered a crime
for the offence punishable under Section 307 r/w Section 34 of
the Indian Penal Code vide Crime No.27/1994 against the
appellant and against acquitted accused. In the F.I.R. (Exh.24) it is
reported that disputed land over which construction of wall was
going was purchased by accused persons from one Wasant Fakira,
the uncle of the first informant. It is reported that when the
accused persons were constructing the wall that time Tulshiram
(PW1), the father of the first informant tried to convince the
present appellant that he should not construct the wall on the said
land. Upon that he was assaulted by means of wooden rafter. It is
also stated in the F.I.R. that Arun (PW2) and Shankar Fakira
(PW9) were also assaulted by the present appellant by means of
wooden rafter.
5. The prosecution has examined in the present case in all
11 witnesses. Tulshiram(PW1), Arun(PW2) and Shankar (PW9)
are the injured persons. Their injury reports are available on
record at Exhs. 31,32 and 30. It is to be noted that these persons
were examined by Dr.Eknath Choudhary(PW8). It is to be noted
here that the respective injury certificates are silent in respect of
nature of the injuries. Further examining Dr.Eknath Choudhary
(PW8) has also not stated in his deposition about the nature of the
injuries as to whether the injuries noticed by him were grievous or
not. As per the evidence of Dr.Eknath Choudhary (PW8) the
injured were referred to Khamgaon. The evidence of
Tulshiram(PW1) and Arun (PW2) show that there after they were
shifted to Medical Hospital at Nagpur. According to their
deposition they were indoor patient for a period of 10 to 15 days.
6. Section 320 of the Indian Penal Code defines ' grievous
hurt' . It reads as under:
"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 of 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 tooth.
Eightly- 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."
7. The prosecution has not filed any x-ray report on
record to show that any of the injured suffered any fracture.
Further for the reason best known to the prosecution the
prosecution has utterly failed to produce the record in respect of
the hospitalisation of Tulshiram(PW1) and Arun (PW2). Even
according to the injured persons they were not indoor patient for a
period of 20 days.
8. In the absence of any record or any evidence in respect
of the nature of the injuries it is crystal clear that the prosecution
has utterly failed to prove that injured suffered any grievous
injury.
9. It is an admitted position that the space on which the
accused persons were constructing a wall was purchased by them
from uncle/first informant. It is also not in dispute that they were
not making any encroachment over the land of first informant or
land of Wasant. Thus, the appellant was well within his right to
raise the construction on the land belonging to him.
10. However, there is a consistent evidence on the part of
the prosecution witnesses that it is the appellant who has given
rafter blow. It is brought on record that the rafter was available on
the spot itself being a construction site.
11. In my view, the Learned Judge of the Court below has
committed a serious mistake in punishing the appellant for the
offence punishable under Section 307 of the Indian Penal Code
since there was nothing on record to show the fact that the injuries
suffered by the injured were grievous one or those were dangerous
to life. Therefore that conviction for the offence punishable under
Section 307 of the Indian Penal Code cannot be stand to the
scrutiny of law.
12. In so far as the conviction under Section 324 of the
Indian Penal Code is concerned as observed above there is
consistent evidence of the prosecution that appellant has given
rafter blow. Therefore, the conviction under Section 324 of the
Indian Penal Code is just and proper.
13. In so far as the sentence is concerned the incident is
dated 28/4/1994. The appellant was in jail for some time. In my
view ,interest of justice will meet if the following order is passed.
O R D E R
i. Appeal is partly allowed.
ii. The judgment and order of conviction passed by
Learned Ad-hoc Additional Sessions Judge, Khamgaon
dated 10/9/1999 in S.T. No. 28/1994 convicting the
appellant for offence punishable under Section 307 of
Indian Penal Code is hereby quashed and set aside.
iii. Appellant is acquitted from the offence punishable
under Section 307 of Indian Penal Code.
iv. The conviction imposed upon the appellant for the
offence punishable under Section 324 of the Indian
Penal Code is hereby confirmed, however the order of
sentence is modified. The appellant is sentenced for a
jail period for which he has already undergone in jail.
v. In addition to the fine amount which he has already
deposited the appellant is further directed to pay fine
amount of Rs. 5000/- within a period of four weeks
before the Court below . If additional fine amount of
Rs. 5000/- is not paid then in that event the sentence
imposed by Learned Judge of the Court below in so far
as offence punishable under Section 324 of Indian
Penal Code will revive and that Court will take
necessary steps against appellant so that he will
undergo the sentence.
JUDGE
kitey
