Gajanan Waman Ganjare vs The State Of ...
2017 Latest Caselaw 9148 Bom

                                        1                                        apeal160.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.160 OF 2002


 Gajanan Waman Ganjare, 
 Aged about 23 years, 
 Resident of Jitapur, Police Station
 Mana, District Akola.                                           ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through Police Station Officer, 
 Mana, District Akola.                                           ....       RESPONDENT

 ______________________________________________________________

               Shri A.R. Fule, Advocate for the appellant,
            Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                             CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 01-09-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 29-11-2017

 JUDGMENT : 

The appellant is aggrieved by the judgment and order

dated 11-1-2002 passed by the learned 4th Additional Sessions Judge,

Akola in Sessions Trial 112/1998, by and under which the appellant

(hereinafter referred to as the "accused") is convicted for offence

punishable under Section 326 of the Indian Penal Code and is

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sentenced to suffer rigorous imprisonment for period of four years and

to payment of fine of Rs.100/-, and is further convicted for offence

punishable under Section 163 of the Maharashtra Village Panchayats

Act and is sentenced to payment of fine of Rs.100/- and is further

convicted for offence punishable under Section 164 of the Maharashtra

Village Panchayats Act and is sentenced to payment of fine of Rs.100/-.

2. Heard Shri A.R. Fule, learned Advocate for the appellant

and Shri N.B. Jawade, learned Additional Public Prosecutor for the

respondent.

3. Shri A.R. Fule, learned Advocate for the accused submits

that the judgment impugned is against the weight of the evidence on

record and the prosecution has failed to establish offence under Section

326 of the Indian Penal Code, muchless beyond reasonable doubt. The

alternate submission is, that even if it is assumed that the accused

assaulted the injured complainant, the offence proved will be under

Section 324 of the Indian Penal Code and not under Section 326 of the

Indian Penal Code, as is held by the learned Sessions Judge.

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4. Per contra, Shri N.B. Jawade, learned Additional Public

Prosecutor for the respondent submits that the judgment impugned

does not suffer from any infirmity and in the teeth of the nature of

assault, the weapon used and the injury suffered the offence under

Section 326 of the Indian Penal Code is conclusively established.

5. The incident took place at 4-00 p.m. on 21-4-1998 at

village Jitapur, Tahsil-Murtizapur, District - Akola. The informant

Gajanan Khedkar, who lodged the report, is examined as P.W.1. He has

deposed that the incident took place on 21-4-1998. The accused,

while passing by the house of the informant, alongwith his cattle,

declared that he was proceeding to the field of the informant to graze

cattle. The informant P.W.1 accompanied by friend Pravin Khedkar

went to his field between 3-00 to 4-00 p.m., found the accused grazing

his cattle in the field, which had cotton crop standing. P.W.1 starting

driving the cattle out from the field to take them to the cattle pound.

The accused obstructed, rushed towards P.W.1 with an axe, an

exchange of words took place between P.W.1 and the accused and the

accused attempted to inflict an axe on the head of P.W.1. P.W.1

further states that he avoided the blow and in the process fell in a pit.

The accused thereafter inflicted an axe blow on the chest of P.W.1.

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Pravin Khedkar tried to stop the bleeding by covering the wound with

handkerchief and dupatta. P.W.1 proves Exhibit 28 which is the oral

report and Exhibit 29 which is printed first information report. P.W.1

further states that he was admitted in the General Hospital, Akola for

16 to 17 days. In the cross-examination, the suggestion given to

witness is that he was jealous of the accused and on the date of the

incident P.W.1 and Pravin attempted to assault the accused with sticks.

It is suggested that P.W.1 assaulted the accused with stick and the

accused received injuries on the face in the scuffle. While is it not

denied by P.W.1 that a scuffle did take place, the suggestion that P.W.1

fell down in the pit and received injury due to iron blade used for

removing the grass, is denied. The omissions which are brought out in

the cross-examination as regards the date and the statement that the

witness managed to avoid the first blow of the axe, in my opinion, do

not dent the credibility of the testimony.

6. Pravin Khedkar, who accompanied the complainant to the

field, is examined as P.W.2. He has deposed that he and the

complainant went to the field of the complainant, found that the cattle

of the accused were grazing in the field of the complainant and when

the complainant started driving the cattle towards the cattle pound, the

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accused obstructed, a scuffle ensued, the complainant fell down and

the accused attempted to inflict an axe blow on the head of the

complainant Gajanan which was warded of by the complainant. The

complainant suffered injury due to the axe blow inflicted by the

accused, is the deposition. P.W.2 then states that he attempted to stop

the flow of blood by covering the injury with handkerchief and dupatta.

Nothing substantial is brought out in the cross-examination of P.W.2 to

assist the defence.

7. P.W.3 Ramesh Bole has proved the spot panchanama

(Exhibit 32). Dilshad Ahmad, the panch witness to the seizure of the

clothes of the accused is examined as P.W.4 and he has proved the

seizure panchanama Exhibit 34. Sahadeo Wankhade, who is examined

as P.W.5 has proved the first information report and has deposed that

offences under Sections 163, 164 and 324 of the Indian Penal Code

were registered against the accused. Prabhakar Raut, who is one of the

investigating officers, is examined as P.W.6. Namdeo Manwar who is

examined as P.W.7 has conducted further investigation and has filed

the charge-sheet. It is brought on record in the cross-examination that

during the scuffle, the accused received minor injury on lip and was

medically examined. P.W.7 admits that the medical certificate of the

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accused was obtained. He, however, denied the suggestion that the

certificate is not produced on record since the accused received major

injuries. He further denies the suggestion that the accused lodged

report prior to the complainant. He candidly admits that he is not

aware as to how far many days was the complainant admitted in the

General Hospital, Akola and what was the treatment given to the

complainant. The witness has not conducted any investigation as

regards the medical treatment nor has he obtained the medical

certificate or case papers which may have thrown light on the nature of

the injury suffered by the complainant.

8. Dr. Kishor Sharma, who is examined as P.W.8 has deposed

that having examined the injured complainant, he noticed incised

wound of size 4 ½" x 1 ½" x bone-deep over mid sternum. He states

that on inspiration air was oozing through wound and that the said

term means that there was injury to the pleura and surface of lung. He

has proved the medical certificate Exhibit 46.

9. The presence of the accused on the spot is not disputed.

Indeed, as is apparent from the trend of the cross-examination and the

statement under Section 313 of the Criminal Procedure Code of the

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accused, the defence is that the complainant and P.W.2 Pravin Khedkar

attempted to assault the accused and in the scuffle the injured

complainant fell in a pit and sustained injuries due to iron blade used

for removing grass.

However, the defence is not probablized even on the

touchstone of preponderance of probabilities. The spot panchanama is

inconsistent with the defence. The doctor, P.W.8 states that if a person

falls on a sharp edged iron blade attached to agricultural implement,

injuries other than those mentioned in the medical certificate Exhibit

46 will be caused. This statement is in response to a suggestion given

by the defence that the injuries mentioned in the medical certificate

may be caused if the person fell on the sharp edged iron blade attached

to the agricultural implement, which suggestion is not denied by the

doctor, but is followed with the caveat that other injuries will be

caused.

The conduct of the accused, of running away, is also not

consistent with the defence version that the injured fell down in the pit

and suffered injuries due to the iron blade of the ploughing implement.

10. I have given my anxious consideration to the evidence of

the injured complainant and the eyewitness P.W.2, and having done so,

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I have not noticed any substantial inconsistency or discrepancy inter se

nor have I come across any significant omission partaking the nature of

contradiction in the deposition. The prosecution has successfully

established, that it was the accused who injured the complainant by

inflicting an axe blow.

11. The finding of the learned Sessions Judge that the accused

is guilty of offence punishable under Section 326 of the Indian Penal

Code is also unexceptionable. It is true, as contended by the learned

Advocate for the accused, that the investigating officer has not taken

any effort to ascertain the nature of the treatment given to the injured

in the General Hospital, Akola nor has the medical certificate or the

case papers from the said hospital produced on record. The

investigation, is certainly shoddy. However, the evidence of P.W.8 Dr.

Sharma would reveal that the injury suffered was life endangering.

The learned Sessions Judge, while acquitting the accused of offence

punishable under Section 307 of the Indian Penal Code, has not

committed any error in convicting the accused under Section 326 of the

Indian Penal Code.

12. The incident took place more than 19 years ago when the

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accused was edged 22 years or thereabove. In the totality of the

circumstances, I deem it appropriate to reduce the sentence to two

years of rigorous imprisonment while maintaining the fine.

13. The conviction of the accused under Section 326 of the

Indian Penal Code, Sections 163 and 164 of the Maharashtra Village

Panchayats Act is maintained, however, for offence punishable under

Section 326 of the Indian Penal Code, the accused is sentenced to

undergo rigorous imprisonment for two years. The accused be taken in

custody forthwith to serve the sentence.

14. With this modification in the sentence awarded, the

appeal is partly allowed and disposed of.

JUDGE adgokar