[Cites 9, Cited by 0]
Bombay High Court
Shankar Dattatray Shirke And Anr vs The State Of Maharashtra And Anr on 9 December, 2025
2025:BHC-AS:53961
37-APEAL-390-2020 (CR).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.390 OF 2020
1. Shankar Dattatray Shirke }
Age-31 years, Occ: Business }
R/at Karla, Taluka-Maval, District-Pune }
}
2. Vishal Kisan Chavan }
Age-30 years, Occ: Business, }
R/at Indori, Taluka-Maval, District-Pune }
NILAM
Digitally signed
by NILAM
(Both presently detained in Yerwada }
} .... Appellant
SANTOSH
SANTOSH KAMBLE Central Prison, Pune)
KAMBLE Date: 2025.12.10
11:49:13 +0530
Versus
1. The State Of Maharashtra }
(At the instance of Lonavala Rural Police }
Station, District-Pune) }
}
2. Suresh Dhondiba Jadhav }
R/at Village Karla, Taluka-Maval, }
District-Pune. } .... Respondent
----
Mr.Priyal G. Sarda a/w Ms.Seema S. Dighe and Mr.Shubham S.
Sane, for the Appellant.
Mr.C.D. Mali, APP, for Respondent-State.
Mr.Mohammad M. Abdi, for Respondent No.2-Victim.
----
CORAM : R.M. JOSHI, J.
DATE : 9th DECEMBER 2025
ORAL JUDGMENT :-
. This Appeal takes exception to the judgment and
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37-APEAL-390-2020 (CR).doc
order dated 27th February 2022 passed in Sessions case No.69
of 2014 whereby the Appellants/Accused are convicted for the
offences punishable under Section 326 read with Section 34 of
the Indian Penal Code ('IPC' for short) and sentenced to suffer
RI for the period of 7 years with fine of Rs.10,000/- in default
RI for six months. They are also convicted for the offence
under Section 504 read with Section 34 of the IPC and
sentenced to suffer one year imprisonment with fine. The Trial
Court directed both the sentences to run concurrently.
2. It is the case of the prosecution that, there were
disputes between the Informant/Injured and Accused No.1 on
the issue of giving dash to the car. On 1 st September 2013 at
around 11.00 p.m. the Informant was assaulted by Accused
No.1 with iron rod and Accused No.2 with fist and kick blows.
In the said incident the Informant-Victim has sustained
number of injuries. He was taken to hospital. He lodged
report which was registered as Crime No.121 of 2013 for the
offences punishable under Section 326, 324, 323 and 504 read
with Section 34 of the IPC. As during the course of the
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investigation it was found that the offence punishable under
Section 307 of the IPC, the same came to be added. On
conclusion of investigation charge-sheet is filed. Since, the
Accused abjured the charge, prosecution led evidence of in all
eight witnesses which include first Informant-Injured, Panch
Witnesses for spot panchnama as well as recovery of weapon
from Accused No.1, Medical Officer (PW-5 and 6) and
Investigating Officer.
3. The learned Trial Court found that, the offence
punishable under Section 307 of IPC is not proved and hence
both the Accused are acquitted. There is no Appeal filed by the
State against the acquittal. The Trial Court convicted the
Accused for the offences punishable under Section 326 and
504 read with Section 34 of IPC.
4. The learned counsel for the Appellant submits that,
the evidence on record led by the prosecution does not prove
the essential ingredients to constitute grievous hurt and hence
no offence is made out punishable under Section 326 of IPC.
It is his submission that, the Medical Officers DW-5 and 6 have
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given diversion opinion with regard to the nature of injury
which is caused on osipital parital region as to it is grevious or
simple. It is further argued that, the evidence of the Medical
Officers is not consistent and PW-6 in his cross-examination
has admitted that C.T. scan report is not placed on record and
therefore according to him, fracture cannot be said to be
proved. It is thus his submission that, unless the prosecution
proves that, the grievous hurt being caused as defined by
Section 321 of IPC, the offence punishable under Section 326
is not made out. Without prejudice to his contention it is his
submission that at the most the offence could be said to have
been committed under Section 324 of the IPC. It is argued
that, the said offence prescribed for sentence to the extent of
three years and that Accused No.1 has already undergone the
sentence. Insofar as Accused no.2 is concerned it is contended
that, since he has allegedly assaulted the injured with fist and
kick blows, the offence under Section 324 is not made out
against him.
5. The learned APP and learned counsel for the
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Informant-Injured opposed the Appeal. However, there is no
dispute made with regard to the fact that, there is no Appeal
filed against the acquittal of the Accused for the offence
punishable under Section 307 of IPC. It is their contention
that the evidence of the Informant is consistent to indicate that
on the fateful day both Accused came together to the spot and
caused serious injuries to the Informant. It is argued that, the
said fact is duly corroborated by the testimony of Medical
Officers who have noticed the number of injuries being caused
on the person injured. It is further argued that, there is
recovery of iron rod under Section 27 of the Evidence Act at
the instance of the Accused No.1 which was used in the assault.
In response to the arguments of the counsel for the Appellant
about there being no C.T. scan report on record it is submitted
that, though such report is not on record, however, there are
certificates and summary indicating of such C.T. scan report
being is in existence. It is therefore submitted that, having
regard to the nature of offence and the evidence led by the
prosecution, this is not a fit case for causing interference in the
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impugned judgment and order.
6. Perusal of the evidence of PW-3 injured indicates
that, there are disputes between the parties i.e. between the
injured and Accused no.1. Needless to say that, the previous
enmity becomes cause for commission of crime as well as it may
become reason for false implication. The Court will have to see
as to whether the evidence of the Informant with regard to the
assault caused by the Accused persons is consistent with the
other evidence on record and reliable to convict the Accused
persons. Perusal of the substantial evidence before the Trial
Court indicates that he narrates the manner in which both
Accused came together to the spot and the Accused No.1
holding iron rod in his hand. He claimed that both threatened
to kill him and also caused assault on him. His evidence is not
shattered to that extent in the cross-examination conducted by
the defence. There is further evidence on record indicating the
causing of injuries to the injured. Testimony of PW-5
Dr.Sadmal Parmar and PW-6 Sanjay Deodhar indicate that
there were injuries caused and one of the injury on his
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Occipito-parietal Region. Apart from this there is evidence of
the panch witness PW-8 indicating the recovery of the iron rod
at the instance of the Accused. The evidence of injured witness
is believable and sufficient to hold that this is not a case of false
implication.
7. The afore-stated evidence conclusively proved the
fact that, on the fateful day the Accused Nos.1 and 2 came
together to the spot with an intention to cause assault on the
injured and accordingly Accused No.1 assaulted him with iron
rod and Accused No.2 used fist and kick blows. The factum of
causing of the injuries to the injured though is proved, now it is
to be seen as to whether the offences made out punishable
under Section 326 of the IPC.
8. In this regard it would be pertinent to take note of
the grievous hurt as defined in Section 320 which reads thus :-
"The following kinds of hurt only are designated as
"grievous":
Firstly-Emasculation.
Secondly-Permanent privation of the sight of either eye.
Thirdly-Permanent privation of the hearing of either ear.
Fourthly-Privation of any member or joint.
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Fifthly-Destruction or permanent impairing of the powers
of any member or joint.
Sixthly-Permanent disfiguration of the head or face.
Sevently-Fracture or dislocation of a bone or tooth.
Eightly- Any hurt which endangers life or which causes the
sufferer to be during the space of twenty days in severe
bodily pain, or unable to follow his ordinary pursuits."
9. In order to bring the case of the prosecution within
the mischief of Section 326, the prosecution is required to
prove that the grievous hurt as contemplated in Section 320 is
caused by the Accused to the injured. Here in this case, the
evidence of the Medical Officers is inconsistent for the reason
that PW-5 terms the injury caused to the Occipito-parietal
Region be the grievous injury whereas PW-6 who has treated
the injured claims it to be a simple one.
10. Insofar as the facture injuries caused, it is pertinent
to note that, PW-5 doctor finds seven injuries whereas PW-6
Medical Officer states about injuries caused to injured. Apart
from this during the cross-examination PW-6 admits that, there
is no evidence on record in the form of C.T. scan report which
would have conclusively established the causing of fracture
injuries. Thus the testimony of both Medical Officer is not
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consistent on material aspect to wholly rely upon the same
without further corroboration. Having regard to the nature of
evidence, it cannot be said that the prosecution has proved
beyond reasonable doubt that in the incident in question the
facture injury were caused to the injured. Consequently the
conviction under Section 326 of the IPC was can not be
sustained. The maxim of falsus uno and falsus in omnibus has
no Application in India and injured witnesses need not be
discarded. There evidence can be considered in order to hold
that, the injuries were caused to the injured in the assaulting
question.
11. There is however evidence on record to indicate
that both the Accused came together at the spot and assaulted
the injured and so also threatened to kill him. This
demonstrate there common intention. Therefore even if the
Accused No.2 used fist and kick blows for causing assault on
the injured, he needs to be convicted for the offences
punishable under Section 324 of IPC. Hence both Accused
persons are convicted for the offence punishable under Section
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324 of IPC, insofar as conviction under Section 504 is
concerned this Court finds no reason to caused interference
therein. Admittedly, Accused No.1 is behind bar for the period
more than three years, in any case, therefore, he deserves to be
set free forthwith if not required in any other crime.
12. Though both Accused are convicted by accepting
their common intention to cause assault. The law on the point
of sentence is settled to say that owning to the acts committed
by the Accused the sentence may vary. Reference can be made
to judgment of Supreme Court in case of Dilip Singh & Others
V/s. State of Punjab1 In such circumstances, this Court finds it
appropriate to sentence the Accused No.1 for the period of
three years with fine as imposed by the Trial Court. Accused
No.2 however to undergo the sentence of period of two years
and four months i.e. the period already undergone.
13. Rest of the order remains unchanged
14. All pending Applications are disposed of.
(R.M. JOSHI, J.)
1 1953 AIR 364 and (1954) 1 SCR 145
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