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2006 DIGILAW 555 (BOM)

NAGORAO s/o KERBA BANDE v. STATE OF MAHARASHTRA

2006-04-05

S.P.KUKDAY

body2006
( 1 ) JUDICIAL Magistrate, First Class, Kandhar convicted the petitioner for the offence punishable under section 324 of the indian Penal Code by order dated 14-11-1995 and sentenced him to suffer rigorous imprisonment for six months and to pay fine of Rs. 500/-, in default, rigorous imprisonment for one month. The matter was carried in appeal. The appellate Court dismissed Criminal Appeal No. 78/1995 by order dated 29-5-1998, confirming the order of conviction and sentence passed by the trial Court. Both these orders are impugned in the present revision petition. ( 2 ) BRIEF facts, relevant for the purpose of deciding the petition, are that complainant Nagnath owns 7 acres of agricultural land situated at Ashtoor. He looks after cultivation of this field. On 2-6-1993, he finished the work at about 4. 00 p. m. and was sitting in front of the hut. At that time, cattle belonging to petitioner entered his field and started grazing in the groundnut crop. The complainant, therefore, was driving out the cattle, but petitioner took an objection. This led to exchange of words and scuffle between the two. Paternal aunt of complainant namely Gangubai (PW-4), who was tending a she-buffalow nearby approached them to intervene to stop the quarrel. However, petitioner dealt a blow on her head using blunt side of the axe, as a result, Gangubai sustained injury. Petitioner also dealt blows on the head of complainant using handle of the axe. On account of the injury sustained, complainant lost consciousness. Brothers of the petitioner namely Laxman, Govind and Bolu, had come there. All of them assaulted the complainant and Gangubai using stones. The incident was witnessed by Shivkanta, maternal niece of complainant, who was tending she-buffalows and had also come to the scene of occurrence. ( 3 ) AFTER the incident, complainant Nagnath lodged a report with Malakoli police station (Exh. 30 ). The injureds were sent for medical examination. They were examined and treated by Dr. Nagargoje (PW-7 ). After completion of the investigation, charge-sheet was filed against the petitioner and his brothers. At the conclusion of the trial, learned Trial Judge found that the guilt is brought home to petitioner alone. In this view of the matter, he convicted the petitioner by order dated 14-11-1995 and sentenced him to suffer imprisonment as aforesaid. ( 4 ) THE matter was carried in appeal. At the conclusion of the trial, learned Trial Judge found that the guilt is brought home to petitioner alone. In this view of the matter, he convicted the petitioner by order dated 14-11-1995 and sentenced him to suffer imprisonment as aforesaid. ( 4 ) THE matter was carried in appeal. Learned 2nd Additional Sessions judge, Nanded dismissed the appeal by his order dated 29-5-1998 and confirmed the order of conviction and sentence passed by the trial Court. Both these orders are impugned in the present petition. ( 5 ) LEARNED Counsel for the petitioner contends that there are material contradictions and omissions in the evidence of witnesses. These contradictions and omissions are not properly considered by the lower Courts. This has led to recording of erroneous findings. According to learned counsel, the complainant has mentioned that the incident took place at 4. 00 p. m. whereas Gangubai (PW- 4) testifies that the incident took place in the evening and Shivkanta (PW-6) claims that the incident took place in the morning. It is contended that complainant claims to have become unconscious and that he did not know as to what happened after he lost consciousness. He, therefore, does not refer to gangubais intervention in the quarrel. Gangubai also testifies that she has become unconscious. According to learned counsel, these discrepancies show that the incident had not taken place. Learned Counsel submits that the findings recorded by the Court below are perverse and, therefore, deserve to be set aside. ( 6 ) JURISDICTION of the Revisional Court is circumscribed by limitations. Revisional jurisdiction can be exercised only to prevent miscarriage of justice, if it is shown that the findings recorded by the lower Courts are perverse or the judgment or proceeding suffer from any illegality leading to miscarriage of justice. It is well settled that Revisional Court cannot reappreciate the evidence for coming to different conclusions. If two views are possible, the Revisional court cannot substitute its view for the view taken by the Trial Judge. In the present case, learned Counsel for the petitioner has contended that appreciation of evidence by the lower Courts is not proper insofar as they have not considered major contradictions appearing in the evidence of complainant and his paternal aunt Gangubai. So far as appreciation of evidence is concerned, several factors are required to be taken into consideration. In the present case, learned Counsel for the petitioner has contended that appreciation of evidence by the lower Courts is not proper insofar as they have not considered major contradictions appearing in the evidence of complainant and his paternal aunt Gangubai. So far as appreciation of evidence is concerned, several factors are required to be taken into consideration. The time gap, after which the witnesses were recounting the incident, their background, their capacity to retain, recall and recount past events etc. are to be borne in mind while evaluating worth of their testimony. It is now well settled that minor discrepancies do not affect veracity of the testimony of witnesses, if there is consensus as to the substratum of the case. Keeping in mind these principles, the evidence will have to be appreciated. ( 7 ) THE first contention of learned counsel is that the time of incident is not properly given by the witnesses. This contention is not based on proper reading of evidence of complainant Nagnath, Gangubai and Shivkanta. Nagnath has specifically mentioned that the incident took place at 4. 00 p. m. Gangubai testifies that the incident has taken place in the evening and Shivkanta, who is a child witness and to whom oath is not administered, as she does not understand the sanctity of oath, mentions that the incident has taken place at 4. 00 p. m. If we consider recitals of F. I. R. (Exh. 30), it can be seen that time was given by the complainant as 4 Oclock in the evening. We are dealing here with rustic witnesses from the village. From the recitals of F. I. R. it appears that time of 4. 00 p. m. is considered to be an evening by complainant. Thus, no fault can be found with the evidence of Gangubai regarding the time of occurrence. If these facts are considered, the contention that there is a major discrepancy in the evidence of pws in giving of time of incident, cannot be sustained. ( 8 ) THE other contention is that the complainant has testified that after the assault, he became unconscious. It is contended that if this is true, he would not have noticed assault on Gangubai. This contention also cannot be sustained. Reading of relevant portion of the evidence discloses that the witnesses did not recount the incident properly. Chronology of the events is not maintained. It is contended that if this is true, he would not have noticed assault on Gangubai. This contention also cannot be sustained. Reading of relevant portion of the evidence discloses that the witnesses did not recount the incident properly. Chronology of the events is not maintained. This is the reason that after testifying to the assault on himself, complainant mentioned that after the assault, he fell down and lost conscious. After that he proceeds to testify that Gangubai had also sustained bleeding injury as she had intervened in the quarrel. The evidence, therefore, shows that the complainant lost conscious after Gangubai was assaulted. So far as unconsciousness of Gangubai is concerned, she has recounted the incident properly. These facts show that there is no glaring defect in appreciation of the evidence by lower Courts. It may also be mentioned that no importance is given to the evidence of Shivkanta in view of the admission given by her that she was tutored by Gangubai and complainant nagnath. However, evidence of complainant and Gangubai receives corroboration from the medical evidence as well as from the spot panchanania, exh. 39, which shows that the cattle had grazed in the field and pieces of bangles of Gangubai were attached from the scene of occurrence. Examination of the evidence of witnesses show that the conclusions arrived at by the lower Court cannot be condemned as perverse. No other infirmity or illegality is pointed out by learned Counsel for the petitioner. It is, therefore, not necessary to interfere with the findings recorded by the trial Court as well as Appellate Court, which are based on rational and logical analysis of the evidence of witnesses. No case for interference is, therefore, made out. ( 9 ) AT this stage, learned Counsel for the petitioner submits that the petitioner has suffered agony of the litigation since the month of June, 1993, i. e. for about 13 years and he is now 55 years old, therefore, leniency be shown to the petitioner. Learned A. P. P. has however, opposed this submission on the ground that for a trivial reason, the complainant and his aunt were attacked by a lethal weapon. According to learned A. P. P. no ground for showing leniency is made out by the petitioner. Applying principles of penology, quantum of punishment has to be determined having regard to the seriousness of offence and other attending circumstances. According to learned A. P. P. no ground for showing leniency is made out by the petitioner. Applying principles of penology, quantum of punishment has to be determined having regard to the seriousness of offence and other attending circumstances. The punishment awarded has to be commensurate with the guilt. In the present case, learned Trial Judge has sentenced the petitioner to suffer rigorous imprisonment for six months after considering the reasons given by the petitioner for showing leniency. The factors, such as, age of the petitioner, use of lethal weapon in the commission of offence, were considered by learned trial Judge while determining the quantum of punishment. Prayer for application of reformative theory of punishment was rejected by the lower Court as well as by the Appellate Court. At this stage, an additional factor is passage of time. It is not in dispute that the petitioner has faced protracted litigation and had suffered agony of litigation for about 13 years. This is undoubtedly a mitigating circumstance. Therefore, the petitioner is entitled to some leniency. Considering the facts of the present case, nature of the offence and the fact that lethal weapon was used in commission of offence, ends of justice would be met if the sentence of imprisonment passed on petitioner is reduced to three months. In this view of the matter, the petition is partly allowed. The order of conviction and sentence passed by the lower Court is maintained subject to modification. The order of sentence is modified only in respect of substantive sentence of imprisonment. The petitioner shall undergo imprisonment for three months. Set off be given for the imprisonment already suffered. Rule is made absolute in the aforesaid terms. The petitioner shall surrender to bail before the trial Court on or before 24-4-2006 for serving remaining portion of the sentence. Order accordingly.