Kashinath Manik Patil And Ors vs The State Of Maharashtra
2021 Latest Caselaw 3835 Bom

                                                              19.Cri. Appeal 391-1998.doc



Shambhavi
N. Shivgan
Digitally signed by    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Shambhavi N. Shivgan

                                CRIMINAL APPELLATE JURISDICTION
Date: 2021.03.06
15:01:03 +0530




                                     Criminal Appeal No. 391 / 1998

                       1.       Kashinath Manik Patil
                                Aged 30 years, Occu. Agriculturist

                       2.       Shivram Govind Patil
                                Aged 61 years, Occu. Agriculturist

                       3.       Manik Govind Patil
                                Aged 75 years, Occu. Agriculturist

                       4.       Narayan Govind Patil
                                Aged 48 years, Occu. Agriculturist

                                Sr. Nos. 1 to 4 are Indian Inhabitants
                                Residing at Village Nane, P.O. Gorhe,
                                Tal. Wada, Dist. Thane.                     .. Appellants


                                                     Versus

                       The State of Maharashtra                             .. Respondent

                                                      *****

Mr. Satyajeet A. Rajeshirke appointed Advocate for Appellant.

Smt. Sharmila Kaushik, APP for State/ Respondent.

                                                      *****

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                                     19.Cri. Appeal 391-1998.doc




               CORAM :       SANDEEP K. SHINDE J.
                DATE     :   2nd MARCH, 2021.



ORAL JUDGMENT :-

1. Aggrieved by the conviction under Section 325 read

with 34 of the Indian Penal Code, 1860 and sentence, to

sufer rigorous imprisonment for sixr months and fne of

Rs. 1000/- each, accused in the Sessions Case No. 632 /

1994 have preferred this appeal.

2. Pending appeal, Accused no. 2 Shivram, Accused no.

3- Manik and Accused no. 4 - Narayan died. Mr. Sankhe

Inspector attached to Wada Police Station, reported this

fact. As such appeal abates against them.

3. Briefy stated prosecution case is thatn

Pandurang Salvi (deceased) was living in Village Nane in

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Taluka Wada. A dispute, between deceased and accused

over the agricultural land was pending in the Court. It is

alleged that on 23rd June, 1994 at about 06:00 am.,

deceased had been to feld and while returning home, on

the way at around 07:00 am, accused confronted and

pelted stones on him. Pandurang raised alarm,

whereupon his two sons rushed to the feld, where they

found Pandurang was lying on the feld in unconscious

state. Pandurang was brought to the home, whereafter

within short span of time, he gained consciousness and

disclosed the incident of assault, by the accused. As

Pandurang had sufered injuries, he was taken to Wada

Police Station where he lodged the reportn at 10:30 am.,

whereupon crime was registered against the accused. It

seems Police referred Pandurang to Rural Hospital at

Wada, where Dr. Balkrushna Kamble (PW-5) exramined

and noticed two injuries on his personn

(i) C.L.W. left side of the forehead 2 xr 1 xr 1 cm.n

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(ii) Contusion on posterior aspect of left elbow 4 xr 4 cm.n

. In his opinion, injury no. (i) was grievous in nature

and therefore Pandurang was advised treatment at Civil

Hospital at Thane. Dr. Kamble opined that injuries were

possible due to pelting of stones. But for the better

treatment, Pandurang was further admitted in Sion

Hospital at Mumbai, where his statement was recorded by

Constable on 24th June, 1994, which is at Exrhibit - 25.

Unfortunately, Pandurang succumbed to injuries on 25 th

June, 1994. Dr. Vasant Dhakane opined, probable cause

of death was mild congestion on brain. Dr. Dhakane,

Autopsy Surgeon, did not notice fracture to scalp. Dr.

Dhakane was exramined as Prosecution Witness No. 7,

who testifed that the injury in the nature of CLW on left

side temporal region was, "not sufcientn in ordinary

course to cause death. Prosecution in support of the

charge had exramined sons of deceasedn Balkrishna PW-1

and Mahendra PW-3. Evidence of Mahendra to be

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appreciated, since he had accompanied his father to

primary health center at Wada and thereafter at Thane

Civil Hospital and thereafter at Mumbai for further

treatment.

4. Herein, the charge was framed under Section 302

read with 34 of IPC and under Section 3 (1) (X) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 may be for the reason that the

accused belong to 'upper' and deceased from the 'lower'

caste. Be that as it may, the learned trial Court acquitted

the accused of the ofences punishable under the Atrocity

Act, but convicted the appellants of the ofence

punishable under Section 325 of IPC. Thus question that

arises for consideration is, whether prosecution has

proved beyond reasonable doubt that the accused

voluntarily caused, grievous hurt to the deceased and as

such, conviction under Section 325 of IPC is just and

proper.

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5. It may be stated that none had seen alleged assault

held on the deceased. Persons, who reached the scene of

ofence were Balkrishna and Mahendra. Testimony of

these two witnesses indicates that when reached, they

found their father was lying on the feld in unconscious

state. They brought him at home, whereafter he gained

consciousness and disclosed the incident of assault and

names of assailants. However, in cross-exramination,

Mahendra would admit, that his father was unconscious,

while removing him to the hospital at Wada. His evidence

indicates that after reaching the S.T. Bus Stand at Wada,

he carried his father to the police station, as he was in

semi-conscious state. In fact, evidence of Vinayak Patil

(I.O.) corroborates evidence of Mahendra on the point of

Pandurangs' health condition. Thus, reading together,

the evidence of Mahednra (PW-2) and Vinayak Patil (PW-

8) indicates, that Pandurang was not conscious, while

commuting from home to Wada, which makes the FIR

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doubtful, being lodged by Pandurang. As a matter of fact

in FIR, Pandurang had stated that after assault, he was

scared and thus left the feld and went home. This

revelations in FIR, contradicts the evidence of Mahendra

(PW-2), Balkirshna, who said he was lying unconscious on

the feld. In the circumstances, the prosecution ought to

have led, the evidence to justify that Pandurang was

conscious throughout till lodging the complaint.

However, in absence of evidence, on this point, it is

difcult to accept the prosecution case that the FIR was

lodged by Pandurang himself. It seems that after

Pandurang was admitted in the Sion Hospital, his

statement was recorded by Constable attached to

Matunga Police Station. The prosecution made eforts to

prove Pandurang's statement, to contend that it was his

Dying Declaration at Exrhibit 25. I have perused Exrhibit

25 and the evidence Ramchandra Devkar (PW-6), Police

Ofcer through whom prosecution brought on recorded

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statement of Pandurang. Before adverting to the

evidence of Ramchandra Devkar, it may stated that

before recording the statement, Pandurang's health

condition was not ascertained, nor his 'statement' bears

endorsement of the doctor to show that Pandurang was in

ft state of mind to give statement. Be that as it may,

though endorsement of medical ofcer, is a rule of

prudence, however, herein evidence would indicate that

Pandurang was unconscious throughout while shifting to

Wada and in such circumstances, prosecution ought to be

guarded and to ascertain, his state of mind and

condition. However since that being not done, in my

view, it was not be a just and proper only rely on Exrhibit -

25, to convict the accused.

6. In consideration of the evidence, in my view, the

prosecution has not proved beyond reasonable doubt that

the accused voluntarily caused grievous hurt to the

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deceased. In the circumstances, the impugned conviction

and sentence passed in Sessions Case No. 632 / 1994 by

the learned Sessions Judge, Thane vide judgment dated

21.02.1998 is set aside. The appellant - accused no. 1 is

acquitted. His bail bond is cancelled and sureties are

discharged. The fne if any paid, by refunded to the

appellant.

7. Appeal is allowed and disposed of.

(SANDEEP K. SHINDE, J).

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