Keshao S/O Namdeo Burande vs State Of ...
2018 Latest Caselaw 10 Bom

                                      1                                      apeal66.00




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 66 OF 2000


 Keshao s/o Namdeo Burande, 
 Aged about 32 years, 
 Occupation - Cultivator, 
 R/o Wagholi, Tahsil - Hinganghat, 
 District - Wardha.                                        ....       APPELLANT


                     VERSUS


 State of Maharashtra, 
 through P.S.O, Hinganghat.                                ....       RESPONDENT

 ______________________________________________________________

            Shri R.M. Patwardhan, Advocate for the appellant, 
   Shri P.S. Tembhare, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                            CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 30-10-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 04-01-2018


 JUDGMENT : 

Appellant Keshao Burande, who alongwith Chandrabhan

Burande and Ramu Burande faced trial for offence punishable under

Section 307 read with Section 34 of the Indian Penal Code ("IPC" for

short), is convicted for offence punishable under Section 326 of the IPC

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and is sentenced to suffer rigorous imprisonment for one year while the

other accused Chandrabhan Burande and Ramu Burande are acquitted.

The judgment and order of conviction is assailed by the appellant

(hereinafter referred to as the "accused").

2. The gist of the prosecution case is that injured Baba

Mangrulkar, who is a Civil Contractor, undertook to demolish-

dismantle the dilapidated wall of the house of P.W.2 Baba Burande.

P.W.1 started demolishing the wall on 11-6-1993, the accused

objected, the objection to demolition of the wall was in the backdrop of

a dispute as regards the ownership of the said wall, between the

accused and P.W.2 Baba Burande. P.W.1 Baba Mangrulkar was getting

down from the wall when accused Keshao assaulted him on the

stomach with spear and accused Ramu and Chandrabhan assaulted

him with sticks. P.W.1 Baba Mangrulkar was taken to the Primary

Health Centre, Hinganghat, P.W.8 Dr. Dudhe informed the Police

Station Officer, Hinganghat, Police Sub-Inspector Jadhav entered the

said information in the station diary and recorded the statement of the

injured P.W.1 at the Primary Health Centre, Hinganghat. On the basis

of the said statement, offence under Section 307 read with Section 34

of the IPC was registered against the accused, the spot panchanama

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was recorded (Exhibit 27), statements of witnesses were recorded, the

accused arrested and the spear recovered from accused Keshao and

stick was recovered from accused Chandrabhan pursuant to the

memorandum of admission under Section 27 of the Indian Evidence

Act. Upon completion of the investigation, charge-sheet was submitted

in the Court of Judicial Magistrate First Class, Hinganghat, who

committed the case to the Sessions Court. The learned Sessions Judge

framed charge under Section 307 read with Section 34 of the IPC. The

accused pleaded not guilty and claimed to be tried. The defence is of

false implication.

3. The ocular evidence is that of P.W.1 Baba Mangrulkar,

P.W.2 Baba Burande and P.W.3 Pravin Sontakke, the injured and

eyewitnesses respectively. P.W.1 Baba Mangrulkar states that he had

climbed on the wall to dismantle the same, the accused protested and

quarrelled with P.W.2 Baba Burande and when P.W.1 was climbing

down from the wall, the accused Keshao assaulted him with spear on

stomach, accused Ramu and Chandrabhan assaulted him with sticks.

P.W.2 Baba Burande states that accused Keshao assaulted Baba

Mangrulkar with spear on the stomach and accused Chandrabhan

assaulted P.W.1 twice with stick.

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P.W.3 Pravin Sontakke is an eyewitness who states that

accused Keshao assaulted Baba Mangrulkar with spear on his stomach

and accused Ramu and Chandrabhan assaulted P.W.1 with sticks.

4. The ocular evidence is substantially consistent on the core

aspects of the incident. The tenor of the cross-examination reveals that

the accused is not disputing his presence on the spot. The defence of

the accused is that P.W.1 fell down from the wall as his foot slipped

and suffered injuries due to the tins and plough kept in the compound

of accused Keshao. Such a suggestion is given to every eyewitness and

is categorically denied. This defence is also put to P.W.8 Dr.

Gowardhan Dudhe, who medically examined the injured. P.W.8 has

denied the suggestion.

5. P.W.1 Baba Mangrulkar is an injured witness. His

testimony is entitled to be treated on a higher pedestal as compared to

other witnesses. Nothing is brought on record to suggest that the

injured P.W.1 would have any reason to falsely implicate the accused.

An injured witness is ordinarily not likely to exculpate the guilty and to

inculpate the innocent. The ocular evidence of P.W.1 Baba Mangrulkar,

P.W.2 Baba Burande and P.W.3 Pravin Sontakke is reliable and

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confidence inspiring. The ocular evidence is corroborated by the

medical evidence. In the teeth of the evidence on record, I have no

hesitation in recording a finding that the prosecution has proved that

accused Keshao assaulted the injured with spear.

6. Shri R.M. Patwardhan, learned Counsel for the accused

states that since the prosecution has not proved that P.W.1 injured

suffered grievous injury, conviction under Section 326 of the Indian

Penal Code deserves to be set aside. P.W.8 Dr. Dudhe has deposed that

he noticed the following injury :

Incised wound on abdomen on left side 4" above the waist line.

Size 1 ½ x 1 ½" deep omentum came out of the wound. Shape

elliptical.

P.W.8 Dr. Dudhe is silent on the nature and extent of the

injury. Whether the injury is grievous or life endangering or likely to

cause death in the ordinary course is not testified to. P.W.8 states that

he temporarily stitched the wound. Unfortunately, the prosecution has

failed to bring on record, for reasons only known to the prosecution,

the treatment which P.W.1 injured was required to undergo, if at all,

after P.W.8 Dr. Dudhe temporarily stitched the wound. The injured

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P.W.1 does state that he was referred to Sevagram Hospital and

admitted as indoor patient for a month. However, other than this bare

statement, no documentary evidence is brought before the Court to

prove that P.W.1 was admitted in the said hospital for a month and

that the injury suffered was grievous or life endangering. The

prosecution could have and ought to have produced the bed-ticket and

other medical papers which would have shed light on the physical and

medical condition of P.W.1 and the treatment received.

7. It would be unsafe to convict the accused for offence

punishable under Section 326 of the IPC. In view of the failure of the

prosecution to bring on record medical evidence, which undoubtedly

could have been obtained and produced, the accused is liable to be

convicted for offence punishable under Section 324 of the IPC.

8. The learned Sessions Judge was pleased to sentence the

accused to rigorous imprisonment for one year after convicting the

accused under Section 326 of the IPC. I have scaled down the

conviction to Section 324 of the IPC. The incident occurred in 1993,

more than twenty-five years ago. The accused has already undergone

one month and seven days rigorous imprisonment post conviction. I

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deem it appropriate to sentence the accused to imprisonment already

undergone. The bail bond of the accused shall stand discharged.

The appeal is partly allowed.

JUDGE adgokar