Pundlik Mohan Kharkar And 2 Others vs The State Of Mah.Thr.Pso ...
2017 Latest Caselaw 8922 Bom

 apeal43.06.J.odt                          1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                      CRIMINAL APPEAL NO.43 OF 2006

 1]       Pundlik son of Mohan Kharkar,
          Aged about 20 years,
          Occupation: Labourer.

 2]       Vitthal son of Mohan Kharkar,
          Aged about 19 years,
          Occupation: Education.

 3]       Deepak son of Madhukar Kharkar,
          Aged about 17 years,
          Occupation; Nil.

          All Residents of Takali,
          District Chandrapur.                              ....... APPELLANTS

                                   ...V E R S U S...

          The State of Maharashtra, through
          the Police Station Officer, Police Station,
          Warora, Tahsil Warora,
          District Chandrapur.                               ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri S.V. Sirpurkar, Advocate for Appellants.
          Ms. T.H. Udeshi, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:             22  nd  NOVEMBER, 2017.


 ORAL JUDGMENT


 1]               The appellants are assailing the judgment and order

dated 09.01.2006 in Sessions Case 112/1997 delivered by 1 st

Ad-hoc Additional Sessions Judge, Chandrapur, by and under

which, the appellants have been convicted for offence punishable

under section 341 of the Indian Penal Code (IPC) and are

sentenced to suffer rigorous imprisonment for one month, are

convicted for offence punishable under section 323 of IPC and are

sentenced to suffer rigorous imprisonment for six months and are

further convicted for offence punishable under section 326 of IPC

and are sentenced to undergo rigorous imprisonment for three

years.

2] The appellants (hereinafter referred to as "the

accused") who concededly were 20, 19 and 17 years of age as on

the date of the incident faced prosecution along with one

Pandurang Kharkar, who however, expired before the

commencement of the trial.

3] The incident is blurred, and this Court is more than

convinced, that the prosecution has not brought before the Court

the true and correct factual scenario. Be that as it may, Criminal

Revision Application 110/2006 is preferred by appellant 1 who

seeks to assail the judgment of acquittal in Sessions Trial 15/2003

in which the injured Vitthal and Suresh, the star witnesses of the

prosecution in Sessions Trial 112/1997 are arrayed as accused

along with one Nirdosh, who incidentally is also a prosecution

witness in the sessions trial from which the present appeal arises.

4] I have given my anxious consideration to the evidence

on record, the submissions of the learned counsel for the accused

Shri S.V. Sirpurkar and the learned Additional Public Prosecutor

Ms. T.H. Udeshi and the reasoning of the learned Sessions Judge,

and having done so, I am not persuaded to accept the submission

of the learned A.P.P. that the prosecution has proved the offence

punishable under section 326 of the IPC much less beyond

reasonable doubt. However, for the reasons recorded infra, the

judgment to the extent the appellants (hereinafter referred to as

"the accused") are convicted for offence punishable under section

341 and 323 of IPC, is unexceptionable. I would, for the reasons

recorded infra, set aside the conviction under section 326 of IPC

and convict the accused for offence punishable under section 324

of IPC.

5] The incident, according to the prosecution, occurred

on 09.04.1997 at 03:00 p.m. Vitthal Meshram (P.W.1) and his son

Suresh (P.W.5) were transporting fodder in bullock cart from the

field of Vitthal Pal. The bullock cart was passing through the field

of one Vitthal Kangale when accused Pandurang, Pundlik, Vitthal

and Deepak stopped the bullock cart. Accused Pandurang and

Pundlik were armed with axes while accused Vitthal and accused

Deepak were armed with sticks. Pandurang, the deceased accused,

attempted to inflict an axe blow on Suresh and in an attempt to

save Suresh the injured Vitthal Meshram (P.W.1) suffered injury

to right hand thumb which had to be amputated. The accused

assaulted Vitthal who suffered injury on left leg, hand, parietal

region while Suresh sustained injuries to his hands and legs.

The injured Vitthal Meshram lodged oral report Exh.32 while

being treated at the Rural Hospital, Warora. The report was

scribed by the Police Sub-Inspector and offence under sections

341, 323, 307 read with section 34 of IPC was registered.

6] The completion of investigation culminated in the

submission of charge-sheet in the Court of Judicial Magistrate

First Class, Warora who committed the proceedings to the

Sessions Court. The learned Sessions Judge framed charge vide

Exh.22 under sections 341, 323, 326, 307 read with section 34 of

IPC, the accused abjured guilt and claimed to be tried in

accordance with law. The defence, as is discernible from the trend

and tenor of the cross-examination and the statement recorded

under section 313 of the Criminal Procedure Code is of total

denial and false implication.

7] The material witnesses are P.W.1 Vitthal Meshram

and P.W.5 Suresh, the son of Vitthal Meshram. The evidence of

the aforesaid two witnesses is corroborated by P.W.6 Sandip

Chaudhari, who however, deposes generally that the accused

assaulted Vitthal and no details or particulars of the assault have

been elicited by the prosecution from the said witness.

8] Vitthal Meshram, concededly, suffered several injuries

and at least one injury which resulted in amputation is grievous.

P.W.1 Vitthal Meshram has deposed that the deceased accused

Pandurang, Vitthal and Pundlik were armed with axes while the

other two who accosted the injured were armed with sticks. P.W.1

has attributed the injury resulting in amputation to an axe blow

inflicted by the deceased accused Pandurang and the deposition is

that Suresh was targeted and in an attempt to save Suresh, P.W.1

Vitthal Meshram suffered the injury. P.W.1 has attributed the

injury on the leg to an axe blow inflicted by the accused Pundlik

while the injury on the head is attributed to a stick blow inflicted

by the accused Deepak. The injured witness is subjected to

searching examination and while the defence has succeeded in

creating some doubt about the genesis of the incident and has

ensured that the possibility of free fight cannot be excluded, the

cross-examination does not dent the version of the injured witness

that he was assaulted in the manner deposed.

9] In so far as P.W.5 Suresh, is concerned, he states that

the accused Pundlik gave a blow of stick on his hand and then

deposes that since accused Deepak assaulted the bullocks by stick,

the bullock cart driven by him moved on. It is apparent from the

evidence of Suresh, that either he has not witnessed the assault

thereafter or is suppressing the genesis and the nature of the

incident or altercation. Be it noted, that the medico legal

certificate issued pursuant to the examination of Suresh reveals as

many as three injuries. The medical evidence is not consistent

with the deposition of Suresh who speaks of having suffered only

one stick blow on hand inflicted by accused Pundlik. Suresh

concededly took off in bullock cart leaving his father behind, at

the mercy of the assailants. His deposition is that when he looked

back, he saw the accused assaulting his father Vitthal.

The evidence of Vitthal P.W.1 and P.W.5 Suresh is not consistent

on which accused was yielding which weapon. P.W.1 Vitthal

Meshram states that other than the deceased accused Pandurang

both Vitthal and Pundlik were armed with axes while P.W.5

Suresh states that Pundlik was armed not with an axe but with a

stick.

10] I have already noted that there cannot be a demur on

the fact that injuries 5 and 6 and in the medico legal certificate

Exh.61, is a grievous injury since the right had thumb was

required to be amputated. However, the other injuries which are

treated by the learned Sessions Judge as grievous are fractures of

the left leg bones and the left arm bone. Concededly, the

prosecution has not placed on record any radiological evidence to

prove that the injured Vitthal suffered fracture. It is well settled

that unless the fact of fracture can be proved by evidence, which is

so glaring and obvious, that a finding can be recorded by the

Court relying on the clinical examination of the patient, it would

be extremely unsafe to hold that the prosecution has proved

fracture in the absence of radiological evidence. The factual

scenario, in which the Court may record a finding that the injured

deem suffered fracture, even in the absence of radiological

evidence, would be rare. Ordinarily, the prosecution must prove

that the injured suffered grievous injury within the meaning of

section 320 of the Indian Penal Code and if the injury is a fracture,

the prosecution must ordinarily prove the fracture by adducing

radiological evidence. Suffice it to refer to the following

observations of this Court in the case of Faizan Ahmed Abdul

Wahab Shah vs. The State of Maharashtra reported in 2014 ALL

MR (Cri.) 4841.

20. It is seen that the injuries are not proved to be grievous hurt. There cannot be a presumption that the

grievous hurt was caused without formal proof of the fact of fracture. The fact of existence of fracture cannot be diagnosed and certified in absence of proof of x-ray plates, unless the fact of fractured bones is perceivable barely of perception by naked eyes and sheerly by clinical examination, its being vivid and palpable. Therefore, proof of x-ray plates was necessary particularly, the appellant had made an attempt to retract the admission of medical certificate/discharge summary.

It is in this view of the matter, that although I am not

inclined to disturb the finding of the learned Sessions Judge that

the injured Vitthal was assaulted by the accused, I am not

persuaded to hold that offence punishable under section 326 of

IPC is established. I would set aside the judgment and order

impugned to that extent and instead hold that the prosecution has

succeeded in establishing offence punishable under section 324 of

IPC against the accused.

11] The learned Sessions Judge was alive to the mandate

of section 6 of the Probation of Offenders Act, 1958. However, the

learned Sessions Judge, and not without justification, held that

since section 326 of IPC was punishable with life, he would not be

in a position to extent the benefit of the Probation of Offenders

Act to the accused. However, since I have scaled down the offence

to section 324 of IPC, I am statutorily bound to extent the benefit

of section 6 of the Probation of Offenders Act unless, of course, for

judicially accepted and recognized reasons, such benefit cannot be

extended. It would be apposite to refer to the following

observations of the Apex Court in Musakhan and others vs. State of

Maharashtra reported in AIR 1976 SC 2566 paragraph 7 is

reproduced:

7. Taking A-4 we find that he was a young man of 20 years in 1968 when the occurrence took place and he is the brother of A-11 and A-12. The only evidence of his participation in the incident at the Bharat Lodge consists of P.W. 1 Prakash and P.W. 16 Vishwanath. So far as P.W. 16 is concerned his evidence has been rejected as he was not able to identify the appellant at a test identification parade. Further more, in view of the evidence of P.W. 16 extracted above, it would appear that he does not mention A-4 as one of the persons who had taken part in removing the cash box from the counter. In these circumstances, therefore, A-4 can only be convicted at the most under Sections 149/425, I.P.C. As this appellant does not appear to have taken any part either in the raid which was made at the Engineering College hostel or at the chawl he can only be responsible for the mischief which was caused at the Bharat Lodge. As his conviction under Sections 395/149 fails, the appellant can only be convicted under Sections 149/425, I.P.C. The other

convictions and sentences recorded against him are set aside. As, however, the appellant was a boy of 20 years, his case clearly falls within the purview of the Probation of Offenders Act, 1958. The Probation of Offenders Act is a social legislation which is meant to reform juvenile offenders so as to prevent them from becoming hardened criminals by providing an educative and reformative treatment to them by the Government. Unfortunately, though the provisions of Section 6 of the Probation of Offenders Act are mandatory, the Courts do not appear to make wise use of these provisions which is necessary to protect our younger generation from becoming professional criminals and, therefore, a menace to the society. It may be that the appellant A-4 was not dealt with under the provisions of Section 6 of the Probation of Offenders Act because of the charge under Section 395, I.P.C. but that charge having failed, there is no impediment now in his being dealt with under the provisions of Section 6 of the Probation of Offenders Act. In these circumstances, therefore, we would set aside the convictions and sentences imposed on A-4 Musa Khan and direct that he be released on his entering into a bond with two sureties of Rs. 500/- each for a period of one year in order to keep the peace and be of good behavior. The appellant will report to the Probation Officer appointed within the jurisdiction of the place where he resides.

12] I see no impediment and none is brought to my notice

by the learned A.P.P., which prevents the extension of the benefit

of section 6 of the Probation of Offenders Act to the accused.

13] In this view of the matter, while I maintain the

conviction of the accused under section 341 and 323 of IPC and

scale down the conviction from 326 of IPC read with section 324

of IPC, the appellants-accused need not be sentenced.

Instead, I direct the accused be released on their entering into a

bond to appear and receive sentence when called upon during the

period of six months, and in the meanwhile to keep the peace and

be of good behaviour.

14] The bail bond of the accused shall stand discharged.

  15]              The appeal is partly allowed.




                                                   JUDGE

NSN