The State Of Maharashtra vs Shankarsingh Gopalsingh
2017 Latest Caselaw 8683 Bom

                                                      Cri. Appeal No. 144/2002
                                        1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 144 OF 2002

The State of Maharashtra
P.S.I., Bhagyanagr Police Station,
Dist. Nanded.                                    ....Appellant.

               Versus


Shankarsingh Gopalsingh Gadiwale,
Age 39 years, Occu. Nil,
R/o. Badpura, Nanded,
Dist. Nanded.                                    ....Respondent.


Mr. V.S. Badakh, APP for appellant/State.
Mr. H.S. Bedi, Advocate for respondent.


                                CORAM   :     T.V. NALAWADE AND
                                              ARUN M. DHAVALE, JJ.

                                DATED       : November 14, 2017


JUDGMENT : [PER T.V. NALAWADE, J.]

1)             The appeal is filed against judgment and order of

Criminal Appeal No. 74/1994, which was pending in the Court of

learned Additional Sessions Judge, Nanded. The said appeal was

filed by respondent to challenge the judgment and order of R.C.C.

No. 507/1991, which was pending in the Court of Judicial Magistrate,

First Class, ('J.M.F.C.' for short) Nanded. The J.M.F.C., Nanded had

convicted and sentenced the respondent for offence punishable

under section 326 of Indian Penal Code ('IPC' for short). Rigorous

Cri. Appeal No. 144/2002

imprisonment of two years was given and fine of Rs.2500/- was

imposed by the learned J.M.F.C. This decision is set aside by the

Sessions Court. Both the sides are heard.

2) In short, the facts leading to the institution of the

present proceeding can be stated as follows :-

First informant Balbhim is resident of Sangvi Gopalnagar.

There is some dispute between the first informant and the present

respondent/accused in respect of boundary of their portions from

land Survey No. 5. On 15.6.1991 at about 12.30 noon when the first

informant went to the field along with Government Surveyor Masood

and some assistants for taking measurement of the land purchased

by him, present respondent Shankarsingh came there with one

unknown person. Respondent questioned the first informant as to

why he was taking the measurement of the land and he gave

abuses. Accused interfered in the measurement and then he took

iron bar which was with his associate and gave blow of iron bar on

right leg of first informant below knee. The first informant sustained

bleeding injury. The persons who had gathered there separated the

quarrel. The first informant sustained fracture injury to his right leg.

On the same day, he gave report and the crime came to be

registered in Bhagyanagar Police Station under section 324 of IPC

and then under section 326 of IPC. Doctor issued certificate that

Cri. Appeal No. 144/2002

there was fracture of right leg and the injury was caused by hard

and blunt object. Police recorded statements of some witnesses and

then filed the chargesheet.

3) Prosecution examined in all ten witnesses before the

learned J.M.F.C., who include the first informant and the doctor. The

Trial Court believed this evidence. The Sessions Court has held that

there is possibility of exercise of right of private defence and the

case is covered by section 97 of IPC.

4) The evidence of Balbhim (PW 1) is as per the contentions

made in the F.I.R. He has given evidence that when blow of iron bar

was given to his leg, his brother and other persons like Dhake and

Mude were present there in addition to Surveyor Masood. In the

cross examination, he has admitted that he does not know the

boundaries of Survey No. 5. It appears that plots are laid in Survey

No. 5. There is admission that plot Nos. 9-11 and 34 are standing in

the name of brother of first informant. He has admitted that accused

is a partner of his brother in plot Nos. 9-11 and 34. The evidence

shows that the first informant had purchased 3 Acre 10 Gunta land

in land Survey No. 5 in the year 1985 and it was purchased from

accused and four brothers of accused. His evidence shows that there

is more portion in Survey No. 5 of which the first informant is not

Cri. Appeal No. 144/2002

owner. He has admitted that the accused is illiterate person and

there is dispute between the accused and him over the boundaries.

No record is produced to show that notice of the measurement was

sent to the accused by Surveyor.

5) Bharat (PW 2), brother of the first informant is examined

by the prosecution and his evidence shows that Cadestral Surveyor

had called the accused there and then the Cadestral Surveyor had

started taking measurement. He has admitted that the land

belonging to accused is situated to the east side of the portion

purchased by them and for measurement they wanted to go to the

land of the accused. He has admitted that accused restrained them

from entering his land and then the quarrel started.

6) Bharat (PW 2) has given different version and he has

described two incidents. He has not deposed that accused had

brought one unknown person with him. He has deposed that accused

returned after quarrel and came with iron bar and then the incident

took place. His evidence shows that he has dispute with accused

over the plotting business started by him with the accused in

partnership. His evidence shows that they had purchased 3 Acre 11

Gunta land from Survey No. 5 when the area of the land is 14 Acre 5

Gunta. Shrirang (PW 6) is examined as other eye witness and his

Cri. Appeal No. 144/2002

evidence is similar to the evidence of aforesaid two witnesses. He

has tried to say that the plot on which incident took place belongs to

Bharat Renapurkar, brother of first informant. Sanjay (PW 7) has

given similar evidence.

7) Other prosecution witnesses like panch witness Sambhaji

(PW 3), panch witness Sahebrao (PW 4), who are on the recovery of

iron bar have turned hostile. Sudam (PW 5), the panch witness on

the spot panchanama has given evidence on spot panchanama and

this document is proved as Exh. 20. No sign of incident was found on

the spot.

8) Prosecution has examined Dr. Mohammad Khurshid (PW

8). His evidence shows that on the day of incident i.e. on 15.6.1991

at about 1.00 p.m. he examined the first informant and he found

one laceration having size of 1" x 1" x 1/2" on right leg below knee.

He has deposed that due to this injury, there was fracture of upper

1/3rd tibia and X-ray plate was taken to confirm that there was

fracture. He has given evidence that the leg was kept in plaster due

to fracture injury. In the cross examination, he has admitted that

such injury can be caused if a person had simple fall. The injury

certificate at Exh. 29 is proved in the evidence of doctor. Vijaykumar

(PW 10), X-ray technician is examined to prove the X-ray plate and

Cri. Appeal No. 144/2002

his evidence is consistent with the evidence of Medical Officer. Thus,

there is evidence to show that the first informant did sustain fracture

injury to his right leg.

9) Evidence of Ramchandra (PW 9), Police Head Constable,

who made investigation shows that initially the crime was registered

for the offence punishable under section 324 of IPC and on the basis

of report given by accused, the crime was registered for offence

punishable under sections 323, 504 of IPC against the first

informant.

10) It is already observed that prosecution did not produce

the record to show that authorised measurement was going on at

the relevant time. The dispute over the boundary is admitted and

that is why the application was given to the Government Department

for measurement. If there was the measurement and accused had

share in the said land, in ordinary course, notice ought to have been

given to the accused. Evidence is given that accused was called by

Surveyor when he was seen on the spot. But that does not mean

that notice was issued to the accused. In such a case, even the

Surveyor could have given complaint against the accused as it would

have amounted to interference in discharge of duty by public

servant. That was not done. The Surveyor could have been

Cri. Appeal No. 144/2002

examined and he could have been the best witness for provig

aforesaid things. Due to absence of such evidence, it can be said

that material evidence is withheld by prosecution. In view of these

circumstances, the Sessions Court has held that there is possibility

of exercise of right of private defence as the measurement was

going on and the accused had objection to the measurement as the

persons involved in the measurement including the first informant

were entering his field. Due to nature of dispute and aforesaid

circumstances, this Court holds that the learned Sessions Court has

not committed any error in allowing the appeal and setting aside the

judgment and order of conviction given against the present

respondent. This Court sees no reason to interfere in the decision

given by the Sessions Court. In the result, the appeal stands

dismissed.

       [ARUN M. DHAVALE, J.]           [T.V. NALAWADE, J.]




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