Bombay High Court
Deelip Bhimrao Patil And Ors vs The State Of Maharashtra on 16 January, 2018
Bench: A.M. Badar
(14)APEALNo.5492017(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.549 OF 2017
1. Deelip Bhimrao Patil,
Age - 49 Yrs., Occu.-Agriculture,
2. Ashok Bhimrao Patil,
Age: 55 Yrs., Occu: Agriculture,
3 Prithviraj alias Gourav Ashok Patil,
Age : 19 Yrs., Occup.: Education,
All R/at: Halbhag Walwa, Tal:Walwa,
Dist: Sangli. ... Appellants
V/s.
The State of Maharashtra
Through Police Station, Ashta Police Station,
Tal : Walwa, Dist : Sangli. ... Respondent
.....
Mr.Kalpesh U. Patil, Advocate for the Appellants.
Mr. V. V. Gangurde, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 16th JANUARY 2018.
ORAL JUDGMENT :
1 This appeal is taken up for final hearing by dispensing
the paper book as per Order dated 12/07/2017 passed by co-
ordinate Bench of this Court (Coram : Revati Mohite Dere J.).
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2 Admit. Heard by consent of parties.
3 By this appeal, the appellants/accused are challenging
the Judgment and Order dated 26th April 2017 passed by the
learned Additional Sessions Judge, Islampur in Session Case No.35
of 2016 thereby convicting the appellants/accused for offence
punishable under Section 323 read with Section 34 of the Indian
Penal Code and sentenced them to pay fine of Rs.1,000/- each and
in default to suffer simple imprisonment for one month by each of
them.
4 According to the prosecution case, result of
Grampanchayat Election of the village was declared at about 12.30
p.m. on 27/11/2012. Appellant/accused Deelip Patil and two
other member of Hutatma Panel were defeated. However, rest of
the members of Hutatma Panel were elected. Therefore, activists
of Hutatma Panel had taken out a procession in the village. When
that procession came to Patil Lane at about 3.00 p.m. of
27/11/2012, the appellants/accused abused complainant Shivaji
Patil and his family members over the result of election. All
appellants/accused assaulted complainant Shivaji Patil, his son
Vitthal Patil and wife Vijaya Patil causing injuries to them. On the
basis of report lodged by complainant P.W.No.1 Shivaji Patil, a
non-cognizable case came to be registered and on getting
permission from the concerned Judicial Magistrate First Class, it
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was investigated and accordingly, the appellants/accused came to
be charge-sheeted by Ashta Police Station, District Sangli for
offences punishable under Sections 323, 324, 504, 506 read with
Section 34 of the Indian Penal Code.
5 In order to bring home the guilt to the appellants/
accused persons, the prosecution has examined in all seven
witnesses. The appellants/accused entered in defence by
examining Police Station Officer Suresh Ananda Kamble as
Defence Witness No.1. After hearing the parties, the learned trial
Court by the impugned Judgment and Order was pleased to
convict the appellants/accused for the offence punishable under
Section 323 read with Section 34 of the Indian Penal Code and
they were sentenced as indicated in the opening paragraph of this
Judgment.
6 Heard the learned Advocate appearing for
appellants/accused. He drew my attention to the evidence of First
Informant P.W.No.1 Shivaji Patil as well as that of injured
witnesses P.W.No.2 Vitthal Patil and P.W.No.6 Vijaya Patil and
argued that it is case of the prosecution that the procession was
passing through the main road of the village, but evidence of these
prosecution witnesses shows that their house is not situated on
main road of the village. The learned Advocate further argued
that evidence of P.W.No.2 Vitthal Patil shows that about 30
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persons were present in the procession, however, except
examining interested witnesses, the prosecution has not examined
any other independent witnesses to prove the alleged offences.
The learned Advocate for the appellants/accused drew my
attention to paragraph 5 of cross-examination of P.W.No.1 Shivaji
Patil in order to demonstrate that the report of non-cognizable
case at Exhibit 23 is suffering from several omissions and argued
that the defence has got those omissions proved through Defence
Witness No.1 Suresh Kamble, ASI. As evidence of the prosecution
is infested with several omissions as well as improvements made
by the prosecution witnesses, the same needs to be discarded and
the appellants/accused deserve acquittal. The learned Advocate
for the appellants/accused criticized the medical evidence coming
on record through evidence of P.W.No.5 Dr.Dhananjay Patil by
submitting that this evidence indicates that there is possibility of
suffering injuries by a fall and, therefore, those injuries cannot be
attributed to the appellants/accused. It is further argued that it is
an admitted position that all accused persons were present in the
procession that has came in the area of the house of the
prosecuting party. It is further argued that prosecution has not
proved the spot of the incident.
7 The learned Additional Public Prosecutor supported
the impugned Judgment and Order of conviction by relying on
evidence adduced by the prosecution witnesses.
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8 I have carefully considered the rival submissions and
also perused the Record and Proceedings including evidence
adduced by the prosecution.
9 As the appellants/accused are convicted of offence
punishable under Section 323 read with Section 34 of the Indian
Penal Code for causing hurt to the members of the prosecuting
party voluntarily, it is necessary to reproduce the provisions of
Section 321 of the Indian Penal Code, which defines the term
'voluntarily causing hurt'. It reads thus :
"321. Voluntarily causing hurt.--Whoever does any act
with the intention of thereby causing hurt to any person, or
with the knowledge that he is likely thereby to cause hurt
to any person, and does thereby cause hurt to any person, is
said "voluntarily to cause hurt"."
Section 319 of the Indian Penal Code provides
definition of term 'hurt' and makes it clear that causing of bodily
pain, disease or infirmity to any person amounts to hurt.
10 P.W.No.1 Shivaji Patil had lodged a report to the Police
Station, which was considered as report of non-cognizable case. It
is at Exhibit 23 on its proof by P.W.No.1 Shivaji Patil. This report
of non-cognizable case is to the effect that on 27/11/2012 at
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about 3.00 p.m. appellants/accused Deelip Patil, Ashok Patil and
Prithviraj @ Gourav Patil had assaulted reporter Shivaji Patil, his
wife Vijaya Patil and son Vitthal Patil by means of stick as well as
fist and kick blows.
11 Evidence of P.W.No.1 Shivaji Patil is to the effect that
when the procession taken out by Hutatma Panel came to the Patil
Lane at about 3.00 p.m. on 27/11/2012, appellants/accused
abused him as well as his family members on account of result of
election and then appellant/accused Prithviraj Patil went to his
house and returned with stick and assaulted him, his wife Vijaya
and son Vitthal by that stick. The appellant/accused Deelip and
Ashok gave fist and kick blows to him as well as his wife Vijaya
and son Vitthal. This witness deposed that persons gathered there
and rescued them. Then they took medical treatment at Rural
Hospital, Ashta.
12 In paragraph 5 of cross-examination of this witness, he
was confronted with his report Exhibit 23 to point out that this
report is silent about procession, threatening by appellant/accused
Prithviraj, leaving of the spot by Prithviraj and returning on the
spot with stick. It is further pointed to this witness that in the
report Exhibit 23, it is not mentioned that Ashok and Deelip gave
kick and fist blows to the members of the prosecuting party. It is
pointed that name of the son of P.W.No.1 Shivaji is written Shivaji
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itself in the report Exhibit 23. It is also brought on record from
the cross-examination of this witness that in the cross-case arising
out of the same incident, the prosecuting party is accused and the
same case is also pending in the Sessions Court.
13 P.W.No.2 Vitthal Patil is son of P.W.No.1 Shivaji Patil.
His evidence is congruous to the evidence of P.W.No.1 Shivaji
Patil. This witness has also stated that when the procession came
in front of their house, appellants/accused persons had assaulted
them. Stick was attributed to appellant/accused Prithviraj @
Gourav whereas rest of the appellants/accused are stated to have
assaulted by fist and kick blows to this witness as well as to his
parents. In cross-examination, this witness has stated that their
house is not adjacent to main road and about 30 persons were
present in that procession.
14 P.W.No.6 Vijaya is wife of P.W.No.1 Shivaji Patil and
she is also an injured witness. Her evidence is also congruous to
evidence of P.W.No.1 Shivaji and P.W.No.2 Vitthal so far as mode
and manner of assault by accused persons is concerned. In cross-
examination, this witness has stated that her house is not adjacent
to the road.
15 D.W.No.1 Suresh Kamble is a defence witness. He has
stated that he has recorded the report of non-cognizable case at
Exhibit 23 as per say of P.W.No.1 Shivaji Patil.
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16 As indicated by me in foregoing paragraphs, the report
at Exhibit 23 lodged by P.W.No.1 Shivaji Patil is to the effect that
appellants/accused had assaulted him, his wife as well as his son
by means of stick as well as fist and kick blows. True it is that,
different role is not attributed to each of the appellant/accused,
but what is important is the report lodged with due promptitude
on the day of the incident soon after the incident goes to show
that appellants/accused assaulted him as well as his relatives i.e.
wife and son. Incorrect mentioning of name of the son is not of
relevant because the report Exhibit 23 categorically mentions that
assault was also on son of reporter P.W.No.1 Shivaji.
17 Much capital is sought to be made out to the fact that
P.W.No.2 Vitthal and P.W.No.6 Vijaya have stated that their house
is not on the main road. However, evidence of P.W.No.1 Shivaji is
clear on this aspect. He has stated that the procession has came to
Patil Lane. He has not stated that the assault took place when
procession was passing from the main road of the village.
Therefore, the admissions elicited from P.W.No.2 Vitthal and
P.W.No.6 Vijaya in this regard are of no use. Moreover, this aspect
not touching to the core of the prosecution case. The prosecution
has proved spot panchanama Exhibit 29 through evidence of
P.W.No.3 Toufik Mujawar. The spot panchanama goes to show
that the incident in question took place in front of the house of
P.W.No.1 Shivaji. Hence, the fact that house of P.W.No.1 Shivaji
is not situated on the main road of village is of no consequence.
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18 P.W.No.1 Shivaji, P.W.No.2 Vitthal and P.W.No.6
Vijaya were referred to the Rural Hospital on the day of the
incident i.e. 27/11/2012 itself. There they were examined by
P.W.No.5 Dr.Dhananjay Patil. Evidence of P.W.No.5 Dr.Dhananjay
Patil shows that P.W.No.1 Shivaji Patil was found to have suffered
two injuries, which are as under :
(i) Contused lacerated wound on left shin of tibia,
middle aspect, anteriorly bleeding 1 x 1 c.m. caused by
hard and blunt object. Simple in nature. Caused within 12
hours.
(ii) Contusion 1 x 1 c.m. on left shoulder posteriorly on
ascromion. Tenderness plus. Simple in nature. Hard and
blunt aspect. Caused within 12 hours.
19 Evidence of P.W.No.5 Dr.Patil further shows that
P.W.No.6 Vijaya has suffered hurt in the nature of changing colour
of her skin to red colour. So far as P.W.No.2 Vitthal is concerned,
P.W.No.5 Dr.Patil has stated that P.W.No.2 Vitthal Patil has
suffered contusion of size 2 x 2 c.m. size on right forearm. The
evidence of P.W.No.5 Dr.Patil of Rural Hospital Ashta is supported
by contemporaneous Medical Certificates at Exhibit 38, 39 and 40.
The wounds stated by P.W.No.5 Dr.Patil which have been suffered
by the injured definitely show that injured P.W.No.1 Shivaji,
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P.W.No.2 Vitthal and P.W.No.6 Vijaya suffered hurt on
27/11/2012. The cross-examination of P.W.No.5 Dr.Patil to the
effect that the injuries are possible by falling on hard substance is
of no consequence because it is not pointed as to on what occasion
all these injured suffered a simultaneous fall on hard surface.
When these injured witnesses are attributing those injuries to the
appellants/accused, possibility of suffering such injuries due to fall
pales into insignificance.
20 In the matter of Shivalingappa Kallayamappa v.
State of Karnataka reported in 1994 Supp. (3) SCC 235, the
Honourable Apex Court has held that the deposition of the injured
witness should be relied upon unless there are strong grounds for
rejection of his evidence on the basis of major contradictions and
discrepancies. In the matter of State of U.P. v. Kishan Chand
reported in 2004 SCC (Cri.) 2021, similar view has been
reiterated by observing that the testimony of a stamped witness
has its own relevance and efficacy. The fact that the witnesses
sustained injuries at the time and place of occurrence, lends
support to his testimony that they were present during the
occurrence.
21 It is thus seen from the evidence on record that
evidence of injured witnesses is duly corroborated by evidence of
Medical Officer P.W.No.5 Dhananjay Patil and as such, I seen no
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infirmity in the impugned Judgment and Order of conviction and
the resultant sentence. In fact, a lenient view is seen to have been
taken by the learned trial Judge.
22 The appeal, as such, is devoid of merit and the same is,
therefore, dismissed.
(A.M.BADAR J.)
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