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2012 DIGILAW 271 (BOM)

State of Maharashtra v. Shrihari S/o Manik Jadhav

2012-02-07

ABHAY M.THIPSAY

body2012
Judgment : 1. Respondent and his son-Kakasaheb-were prosecuted on the allegation of having committed offences punishable under sections 324 and 504 of the Indian Penal Code r/w Section 34 of the Indian Penal Code. The allegation against them was that they, in furtherance of their common intention, voluntarily caused hurt to one Vishwanath Jadhav (PW-1) by means of a stick. The learned Chief Judicial Magistrate, after holding a trial, found the respondent guilty of an offence punishable under Section 324 of the Indian Penal Code and sentenced him to suffer R.I. for three months and to pay a fine of Rs. 1,000/-. The Chief Judicial Magistrate acquitted the co-accused-Kakasaheb. The respondent challenged the order of conviction passed by the Chief Judicial Magistrate by filing an appeal to the Court of Sessions, Latur. The learned Additional Sessions Judge, after hearing the appeal on merits, concluded that the order passed by the learned Magistrate was not proper and legal. As such, he reversed the order of conviction and acquitted the respondent. The State of Maharashtra feeling aggrieved by the said order of acquittal passed by the Appellate Court, has challenged the same by filing the present appeal. 2. I have heard Mr. Lodhe, the learned A.P.P. for applicant/State and Mr. Sawant along with Mr. Kale, the learned advocates for the respondent. I have carefully gone through the judgments delivered by both the Courts below. I have also gone through the entire evidence adduced before the trial Court and other relevant record. 3. The case of the prosecution was that the respondent and Kakasaheb, on one hand; and the victim Vishwanath Jadhav and his father Atmaram, on the other hand, were not on good terms. They were neighbours and their fields were also situated adjacent to each other. That, on the day of incident, some quarrel took place between the respondent and the victim Vishwanath over dumping of heap of Turhati ¼ rq&gkVh½ (waste material of Tur crop), which was allegedly dumped by the respondent infront of the house of Vishwanath. That, during the quarrel, the respondent gave a blow of stick on the head of Vishwanath. Kakasaheb gave a blow of stick, on Vishwanath's left arm. Vishwanath sustained a bleeding injury on his head. On a report lodged by him to the Police (Exhibit-28), a case was registered and the respondent and the said co-accused Kakasaheb were prosecuted. 4. That, during the quarrel, the respondent gave a blow of stick on the head of Vishwanath. Kakasaheb gave a blow of stick, on Vishwanath's left arm. Vishwanath sustained a bleeding injury on his head. On a report lodged by him to the Police (Exhibit-28), a case was registered and the respondent and the said co-accused Kakasaheb were prosecuted. 4. That, Vishwanath had, indeed, sustained an injury to his head, is not in dispute; and as a matter of fact, has been satisfactorily established. The same was not disputed before the trial Court, or the Lower Appellate Court, and has not been disputed even before this Court. 5. The respondent and the co-accused had taken a specific defence during the trial that on the day of incident, some quarrel had taken place over the dumping of the Turhati; and that, at that time, while Vishwanath was hurriedly coming out of his house, his head dashed on the frame of door of his house thereby causing an injury to his head. According to the respondent, due to the disputes which existed between them, Vishwanath and his father decided to take advantage of this injury and implicated the respondent and his son falsely. 6. A perusal of the judgment delivered by the Chief Judicial Magistrate shows that he did not believe this specific defence, which was put forth by giving suggestions to the prosecution witnesses during the cross-examination and also in the course of arguments. The Chief Judicial Magistrate was of the opinion that the injury, that was caused to the said Vishwanath, could not have been caused by giving a dash to the frame of door. It is basically in view of this opinion formed by him, that he held the respondent guilty. 7. It would be proper, therefore, to see the medical evidence regarding the injury caused to Vishwanath. Narayan Deshmukh (PW-5) is the Medical Officer, who had examined Vishwanath Jadhav on the day of incident i.e. on 18.04.1998. His evidence shows that Vishwanath had sustained the following injury:- "CLW posterior parietal part of head, horizontally direction and irregular margin. 2 1/2 X 1/2 X 1/2 cm. Nature of injury was simple caused by hard and blunt object within 12 hours." The evidence of this witness was corroborated by the Medical certificate, which was tendered in evidence by him (Exhibit-38). 2 1/2 X 1/2 X 1/2 cm. Nature of injury was simple caused by hard and blunt object within 12 hours." The evidence of this witness was corroborated by the Medical certificate, which was tendered in evidence by him (Exhibit-38). This witness stated that the injury in question was possible by a stick. In cross examination, he admitted that the injury was possible if the victim would hit against the frame of door in a hurry. Thus, the medical evidence was not conclusive as regards the probability or improbability of causing an injury in either manner; i.e. on being hit against the frame of door in a hurry, or by receiving a blow of stick. 8. The Chief Judicial Magistrate felt himself satisfied that the type of injury as sustained by Vishwanath was not possible when a person would strike to the frame of door, while running towards front direction. This reasoning is reflected in para no.8 of the judgment of the Chief Judicial Magistrate and seems to be the basis for forming an opinion about the guilt of the respondent. 9. The Court of Sessions, in appeal, on the other hand criticised this findings, as incorrect. This is what the learned Additional Sessions Judge observed:- "the part of the head, where the injury has been noticed, could cause to a person if that particular area is struck to the door frame. Therefore, in such circumstances, the direction of the injury in my opinion, plays an important role to believe the defence put forth by the appellant/accused. Had it been the fact that the accused Srihari dealt a blow of stick on the head of complainant, when he came out of house by raising an objection, then he might have sustained injury in vertical direction. Therefore, considering the nature and direction of the injury noticed on the person of the complainant, the defence put forth by the accused cannot be disbelieved or thrown at threshold." 10. In my opinion, both the Courts below have given an undue importance to the nature of injury sustained by victim for basing their findings. In my opinion, in the first place, the location of injury cannot be properly spelt out from the evidence given before the Court. In my opinion, both the Courts below have given an undue importance to the nature of injury sustained by victim for basing their findings. In my opinion, in the first place, the location of injury cannot be properly spelt out from the evidence given before the Court. Though it mentions as to be on posterior parietal region, it is not specific whether it was on the left parietal region, or on the right parietal region. In the second place, in a case of this nature, the nature of injury can never be conclusive either for accepting the theory of the victim, or for rejecting it. The nature of injury caused would depend on several aspects, such as the position of offender vis-a-vis that of the victim, the direction from which the blow was given, or the victim was rushing out of the door, and several other factors. On which part of the head, the injury would be caused by striking against the door frame, would depend on how exactly and in which direction the victim was attempting to proceed from the door frame. Thus, it would be hazardous to base a finding on the nature of injury sustained. 11. I, have therefore, carefully considered the other evidence adduced during the trial. It is a fact that the victim and his father Atmaram were not on good terms with the respondent and his son; and that, therefore, their evidence needs to be scrutinized carefully. It would be hazardous to rely on their evidence, unless it would be corroborated at least on some material aspects of the case, or would be in consonance with the rest of the circumstances of the case. One independent witness was examined during the trial, but he-Hanmant(PW-4)-did not support the case of the prosecution. His evidence is, therefore, of no assistance to the prosecution. 12. It is also a fact that the weapon of assault, stated to be a stick, is not recovered in the course of investigation. 13. If the evidence of victim and Atmaram is examined in the context of this fact viz., non-recovery of the weapon, it becomes clear that none of them have attempted to describe the nature of weapon, except by saying that it was a stick. What type of stick it was, and wherefrom it came to the accused, is not at all addressed to by these witnesses. What type of stick it was, and wherefrom it came to the accused, is not at all addressed to by these witnesses. What the accused did after the assault, and whether they took away the stick with them, is also not disclosed by the victim and/or Atmaram. 14. There is also one significant aspect of the matter, which was noticed by the Sessions Court. It is that even the trial court did not find the victim and his father Atmaram to be thoroughly reliable witnesses. The trial Court doubted the version that Kakasaheb had given a blow to the victim on his arm by a stick, and by giving benefit of such doubt, acquitted Kakasaheb. When the witnesses were not found to be of such a quality that implicit reliance could be placed on their testimony, it was hazardous on the part of the trial Court to have held the respondent guilty, only on its opinion about the impossibility of sustaining the injury in the manner suggested by the defence. 15. There is yet another aspect of the matter. It is well settled, that while dealing with an order of acquittal, this Court ordinarily does not interfere therewith, if the view of the matter, as taken by the concerned Court, would be a possible view. Undoubtedly, the rigour of this principle would be somewhat diluted, when the order of acquittal would be an appellate order and not of the trial court; but the principle is not to be entirely overlooked even while dealing with an appellate order of acquittal. 16. Since there was no satisfactory evidence to establish the guilt of the respondent beyond reasonable doubt; and at any rate, since the reasoning of the learned Additional Sessions Jude can not be said to be suffering from any infirmity or error requiring interference by this Court, I am inclined to dismiss the appeal. 17. In the course of arguments, Mr. Sawant submitted that since it seems to be a fact that Vishwanath sustained some injury, which was not unconnected with the incident of quarrel between the parties, though the respondent had not caused the same, as a good gesture and as a sign of good will, the respondent shall pay the amount of Rs. 1000/-which had been paid as the fine and which he would be getting back, as a result of the acquittal, to the victim Vishwanath. 1000/-which had been paid as the fine and which he would be getting back, as a result of the acquittal, to the victim Vishwanath. This suggestion and the approach of the learned Advocate for the respondent is very much appreciated, and it is hoped that, this would improve the relationship between the parties, who are neighbours, which is certainly desirable. 18. As a result of the aforesaid discussion, it follows that the appeal deserves to be dismissed. It is ordered accordingly. 19.