Nivrutti Genba Waghmare vs The State Of Maharashtra
2017 Latest Caselaw 2577 Bom

Mhi                                   1           Appeal-711-1998.sxw


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE JURISDICTION
                        CRIMINAL APPEAL NO. 711 OF 1998


      Nivrutti Genba Waghmare                        )
      Age 40 years, Occ: Agri. R/at Kolvihire        )
      Tal-Purandar, Dist. Pune.                      ) ...            Appellant
                         Vs.
      The State of Maharashtra        ...                                Respondent

      Mr.H.S.Venegavkar a/w Mr. A.L.Bhise,Advocate for the appellant
      Mr.S.R.Agarkar,APP, for the State.

                                      CORAM: SMT.SADHANA S.JADHAV, J.
                                      DATE : 19th May, 2017.

      JUDGMENT:

Heard. The appellant herein is convicted for the offence

punishable under Section 326 of the Indian Penal Code and sentenced to

suffer rigorous imprisonment for two years and fine of Rs.1,000/- in default

to R.I.for six months by the 2 nd Addl. Sessions Judge, Baramati, in Sessions

case No.32 of 1996 vide judgment and order dated 19.8.1998. Hence, this

appeal.

2. Such of the facts necessary for the decision of this appeal are

as follows :-

The appellant happens to be the first cousin of the complainant

- Ramesh Waghmare. They were cultivating agricultural lands which are

Mhi 2 Appeal-711-1998.sxw

adjacent to each other. That the complainant as well as the accused had

independently dug wells in their agricultural land. It is the case of the

prosecution that the source of water for cultivating agricultural land for the

complainant was better than that of the accused and, therefore, there were

intermittent disputes between them. However, no civil suit was filed. That

the daughter of the accused was to get married. Being paternal cousin, he

had requested his aunt to send the complainant along with him for

purchasing clothes. The accused was intending to purchase clothes at

Mumbai. They had been to Jejuri to bring money from the co-brother of

the accused. They had been to village Bhandgaon, as accused was to

borrow the amount of Rs.3,000/- from his co-brother. While they were on

their way to the house of the relatives, the accused/appellant had offered a

cigarette to the complainant and when the complainant was about to light

cigarette, the accused had assaulted the complainant on his head with a hard

and blunt object. The complainant had fallen dizzy for some time and

thereafter it is alleged that the accused/appellant had caused a stab injury on

the abdomen of the complainant. It further appears that the accused had

also assaulted the complainant with fist and kick blows. The complainant

had reached Yawat Police Station and lodged a report. The complainant

was given treatment by Dr. Kulkarni. On the basis of his report, Crime

Mhi 3 Appeal-711-1998.sxw

No.35 of 1996 was registered at Yawat Police Station against the accused

for the offence punishable under Section 307 of the IPC. The investigation

was completed, charge-sheet was filed and the case was committed to the

Court of Sessions and registered as Sessions case No.35 of 1996. The

prosecution examined nine witnesses to bring home the guilt of the accused.

3. The case rests upon the evidence of the injured/complainant

i.e. PW-1 - Ramesh Waghmare and the doctor who had examined him

soon after the incident i.e. PW-5 Dr. Manjusha Litake of Sassoon Hospital.

The complainant PW-1 has deposed before the Court in consonance with

the first information report lodged by him and the same is marked as

Exhibit 11. According to him, the accused and the complainant owned

agricultural lands from the same Gat number. They both had dug wells in

their respective lands. There was plenty of water in the well of the

complainant compared to that of the accused and, therefore, their yield was

better than that of the accused. As far as the incident is concerned, the

complainant has deposed that there was no prelude to the incident and when

he was about to light the cigarette, the accused had assaulted him. At that

relevant time, there was no cause for the accused to assault him. There are

inherent omissions in the evidence of the complainant.

4. PW-5 Dr. Manjusha Litake has deposed before the Court that

Mhi 4 Appeal-711-1998.sxw

she had examined the complainant. That there was right haematoma in the

right flank. The complainant was treated as an indoor patient from

12.3.1996 to 22.3.1996. According to her, injury No.2 was grievous in

nature . The rest of the injuries were simple in nature. She has specifically

deposed that injury Nos.2 and 3 are not sufficient to cause death of the

person in the ordinary course of nature.

5. It is on the basis of this evidence that the appellant who was

charged for the offence punishable under section 307 of the IPC has been

acquitted of the charge under Section 307 of IPC and has been convicted

for the offence punishable under Section 326 of IPC.

6. Upon perusal of the substantive evidence of the complainant, it

is sufficiently clear that the incident, as narrated, had occurred. It appears

the complainant has suppressed some material fact which had resulted into

the assault by the accused/appellant. There was no prelude to the incident

and, therefore the cause of assault is not known. The motive as narrated by

the prosecution does not inspire confidence. However, since the injured

witness has specifically attributed the act to the present appellant, no other

view is possible but to hold that the appellant is the author of the injuries

sustained by the complainant. The complainant and the appellant happen

to be close relatives.

Mhi 5 Appeal-711-1998.sxw

7. The learned counsel for the appellant vehemently submits that

after 12.3.1996 till today, there is no untoward incident between the

families and they are living peacefully.

8. Taking into consideration the nature of evidence and the

relation between the accused and the complainant, the appeal deserves to be

partly allowed :-

ORDER

(i) The Appeal is partly allowed.

(ii) The conviction of the appellant for the offence punishable

under Section 326 of the Indian Penal Code vide Judgment and order dated

19.8.1998 passed by the 2nd Addl. Sessions Judge, Baramati in Sessions

Case No.32 of 1996 is hereby quashed and set aside.

(iii) The appellant is convicted for the offence punishable under

Section 324 of the Indian Penal Code and is sentenced to the period already

undergone. The fine amount is enhanced to Rs.5,000/-.

(iv) The appellant shall pay fine of Rs.5,000/- within eight weeks

from today. Upon failure, the appellant shall undergo simple imprisonment

for 15 days.

      (v)              The learned Addl. Sessions Judge, Baramati shall issue





 Mhi                                   6          Appeal-711-1998.sxw

bailable warrant against the appellant and call upon him to pay fine amount

of Rs.5,000/- within eight weeks.

The appeal stands disposed of.

(SMT. SADHANA S.JADHAV, J.)