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2013 DIGILAW 103 (BOM)

Bhausing Gulab Pawar v. State of Maharashtra

2013-01-15

R.C.CHAVAN

body2013
JUDGMENT This appeal is directed against conviction of the appellants by the learned Additional Sessions Judge, Malegaon, District - Nashik for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for a period of seven years with a fine of Rs. 2,500/- or in default of payment of fine further rigorous imprisonment for a period of 18 months imposed upon the appellants on conclusion of trial of Sessions Case No. 108 of 2003 before him. 2. Facts which are material for deciding this appeal are as under :- The appellants are related to the first informant and his family. The first informant, Santosh is a real brother of appellant, Gulab Onkar Pawar. Their fields are adjacent to each other. The fields are separated by bandh. On 11th September, 2003, the victim's family had brought a tractor for leveling their fields. In the process of leveling, the appellants felt that the first informant's family also damaged bandh separating two fields. The appellants, therefore, went to the field of first informant and an altercation ensued. In course of quarrel, appellant Gulab Pawar is alleged to have hit Santosh on head by a Spade. The appellant Bhausing Gulab Pawar hit his cousin Sahebrao with Mattock (Tikav). Both Sahebrao and Santosh Pawar were injured. They were taken to hospital. On a report by Santosh Pawar, an offence was registered and investigation commenced. In course of investigation, police performed panchanama of spot, recorded statements of witnesses, seized the" Spade and Mattock (Tikav) at the instance of appellant Bhausing, sent the property seized to the Forensic Science Laboratory and on completion of investigation, sent charge sheet to the Court of Judicial Magistrate First Class, Satana, District - Nashik, who committed the case to the Court of Sessions at Malegaon, District Nashik. 3. The learned Additional Sessions Judge to whom the case was made over, charged the appellants for the offences punishable under Sections 307 and 506 read with Section 34 of the Indian Penal Code. Since the appellants pleaded not guilty, they were put on trial at which the prosecution examined in all ten witnesses in its attempt to bring home guilt of the appellants. Since the appellants pleaded not guilty, they were put on trial at which the prosecution examined in all ten witnesses in its attempt to bring home guilt of the appellants. The appellants took a defence that in fact, the appellants were also injured and had given a report in respect of the same incident on which the first informant and his family members were prosecuted. It is not in dispute that they have been acquitted in that case. It was stated that the appellants had not caused any injury to the victims and injuries suffered were due to fall. After considering the prosecution evidence, in the light of defence of false implications raised by the appellants, the learned trial Judge convicted and sentenced the appellants as aforementioned. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor for the respondent - State. With the help of both the learned counsel I have gone through the evidence on record. 5. PW-1 Tushar Sadashiv Kulkarni, PW-2 Sahebrao Dhondu Khairnar, PW-3 Sanjay Namdeo Pawar and PW-4 Gorakh Shyamsing Jadhav are the panch witnesses. Out of them, PW-1 to PW-3 turned hostile and PW-4 lent hesitant support to the prosecution case. PW-5 Shobha Rajendra Dahite is the daughter of PW-7 Santosh Onkar Pawar. She stated that though she was married to her husband, who stayed in some different village, on the incidental morning, she had come to her father's house. She was asked by her mother to deliver tiff in to her father and brother in the field. By chance she claims to have witnessed the incident. The learned counsel for the appellants pointed out that her evidence should have been rejected by the learned trial Judge, since there are number of exaggerations in her evidence. She stated not only about injuries sustained by Sahebrao and Santosh but also by herself and some others, which is not the story given by her brother and father. Therefore, Shobha is possibly a got up witness whose evidence should have been rejected by the learned trial Judge. 6. PW-6 Dr. Prashant Udaram Deore had examined PW-8 Sahebrao Santosh Pawar and had proved Medico-Legal Certificate at Exhibit 18 as also report of CT Scan at Exhibit 19. Therefore, Shobha is possibly a got up witness whose evidence should have been rejected by the learned trial Judge. 6. PW-6 Dr. Prashant Udaram Deore had examined PW-8 Sahebrao Santosh Pawar and had proved Medico-Legal Certificate at Exhibit 18 as also report of CT Scan at Exhibit 19. The evidence of this witness shows that Sahebrao had contused lacerated wound on fronto parietal region of the head on the left side. He observed extra dural haematoma on the left frontal lobe of brain. There was depressed fracture with haematoma on the left frontal region of head. There was contusion on the left frontal lobe of brain and even contused lacerated wound on the left lumber region of the back. He made these observations in his Injury Certificate at Exhibit 18 after receiving the report of CT Scan from the Civil Hospital, Nashik. The learned counsel for the appellants submitted that though Medical officer had included five items in his Injury Certificate, they in fact, relate to only two injuries: contused lacerated wound on left side of fronto parietal region of head and contused lacerated wound on the left lumber region of back. He submitted that extra dural haematoma on the left frontal lobe of brain was mentioned by the Medical officer in his report on the basis of report of CT Scan because otherwise Medical officer carrying out clinical examination of the patient would have no occasion to observe extra dural haematoma. 7. The learned counsel for the appellants submitted that the evidence of this witness ought to have been totally rejected by the learned trial Judge. He submitted first that the Medical officer admitted in his cross examination that he had forgotten to note age of injuries, time of examination of the patient as also size of the injuries. The learned counsel for the appellants submitted that doctor need not have believed the said CT Scan report which was sent to him, since it was not prepared by him. The learned counsel for the appellants submitted that PW-6 Dr. Prashant Deore had admitted the possibility that if one falls from a height on a blunt object, these injuries were possible. As rightly pointed out by the learned Additional Public Prosecutor, failure of the doctor to mention time of examination, or age of injuries need not result in out right rejection of evidence of this witness. Prashant Deore had admitted the possibility that if one falls from a height on a blunt object, these injuries were possible. As rightly pointed out by the learned Additional Public Prosecutor, failure of the doctor to mention time of examination, or age of injuries need not result in out right rejection of evidence of this witness. She submitted that the appellants themselves had admitted that there was an incident on the incidental morning which led to their filing of a report against first informant's family. They had also claimed that they had suffered injuries in the incident. Therefore, lapse on the part of the Medical officer in mentioning some details in the report are not material. As to the suggestions about injuries being possible by fall from a height, it was a hypothetical suggestion, which would require a coincidence for a person to fall from the height on a blunt object on the ground. Therefore, merely because such hypothetical suggestion is accepted by the Medical officer, it would not follow that Sahebrao suffered injuries due to fall. The learned counsel for the appellants submitted that such suggestions had been made to both Santosh and Sahebrao which had been denied by them. 8. PW-7 Santosh Onkar Pawar and PW-8 Sahebrao Santosh Pawar are the witnesses on the manner in which incident took place. Though both of them claimed to have suffered injuries in the incident, there is no Medical Certificate to show that Santosh Pawar had suffered any injuries Santosh Pawar stated that on the incidental morning when work of leveling of the field was going on, the appellants assaulted him and his son. Santosh Pawar claimed to have suffered an injury by Spade. He had gone by S.T. Bus to Satana Hospital. The doctor advised him to get requisition from the police station. He then went back to the police and got a requisition whereupon he was treated by the Medical officer. He proved his report at Exhibit 21 which was given on the next day of the incident. He claimed that though he was not unconscious, he was not in a position to understand anything. Therefore, he had given a report on the next day. The learned counsel for the appellants submitted that delay in giving report should itself have resulted in rejecting story of PW-7 Santosh Pawar. He claimed that though he was not unconscious, he was not in a position to understand anything. Therefore, he had given a report on the next day. The learned counsel for the appellants submitted that delay in giving report should itself have resulted in rejecting story of PW-7 Santosh Pawar. He also stated that 60th Santosh and Sahebrao stated about presence of Dayaram and Ranjit. Both Dayaram and Rajit have not been examined in the trial Court. The learned counsel for the appellants, therefore, submitted that non-examination of the independent eye witnesses, who were present at the time of incident should have weighed with the learned trial Judge in evaluating the story which Santosh and Sahebrao were seeking to make out. 9. In this case, first, the appellants have admitted participation in the incident because they had themselves filed a report against the victims which led to prosecution of the victims, at which the victims have been acquitted. Therefore, there is no question of any false implication. PW-8 Sahebrao Santosh Pawar has suffered an injury which is serious enough, as much as there is depressed fracture with haematoma on the left frontal region of head. Therefore, it would not be possible to hold that PW-7 Santosh Pawar and PW-8 Sahebrao Pawar are coming with an imaginary story in order to falsely implicate the appellants. As already observed, the injuries sustained by Sahebrao could not have been caused by fall. It would be too much to accept co-incidence of Sahebrao's falling from height on a stone and the stone hitting his head. Therefore, no fault can be found with the learned trial Judge when he believed story of the incident as given by PW-7 Santosh Pawar and PW-8 Sahebrao Pawar. While PW-7 had stated that appellant Bhausing picked up mattock and hit Sahebrao on his head, he did not attribute any blow by Bhausing to himself. He stated that appellant Gulab gave him a blow by Spade. Same story was given by Sahebrao to show Gulab hit Santosh. As already observed, there are no injuries on the person of Santosh proved by any Medical officer. Therefore, complicity of Gulab in the incident is doubtful Gulab had not given any blow to Sahebrao. Therefore, the learned counsel for the appellants submitted that the conviction of Gulab for the offence punishable under Section 307 of the Indian Penal Code was thoroughly unwarranted. Therefore, complicity of Gulab in the incident is doubtful Gulab had not given any blow to Sahebrao. Therefore, the learned counsel for the appellants submitted that the conviction of Gulab for the offence punishable under Section 307 of the Indian Penal Code was thoroughly unwarranted. The learned APP submitted that since both had acted in furtherance of their common intention, conviction of Gulab also was justified. 10. In my view, since Gulab had not at all inflicted any blow on Santosh and since the incident was not result of premeditation but had occurred in a fight which had flared up because of victims' activity of leveling of fields, no such sharing of common intention in the assault could be attributed to Gulab. Therefore, conviction of Gulab will have to be set aside. 11. The learned counsel for the appellants next submitted that since incident took place without any pre-mediation and in course of quarrel which fared up, it was improper on the part of the learned trial Judge to hold the appellants guilty for the offence punishable under Section 307 of the Indian Penal Code. He submitted that this was because only two blows were given, one on the back and one on the head. Therefore, according to him, there was nothing to attribute to the appellants either intention to cause death of Sahebrao or to have such knowledge that Sahebrao could have died as a result of injuries sustained. In my view, given the genesis of the incident and the fact that the appellant Bhausingh is not alleged to be involved in indiscriminate assault on victim Sahebrao, but stopped at giving one blow on the head requisite intention or knowledge for the offence punishable under Section 307 must be held to have been not proved. All that the appellants could be held to have intended is to inflict grievous hurt, since there has been depressed fracture on the left frontal region of head of Sahebrao. In view of this, conviction of the appellant Bhausing would have to be altered from that for the offence punishable under Section 307 of the Indian Penal Code to one for the offence punishable under Section 325 of the Indian Penal Code. 12. In view of this, conviction of the appellant Bhausing would have to be altered from that for the offence punishable under Section 307 of the Indian Penal Code to one for the offence punishable under Section 325 of the Indian Penal Code. 12. The learned counsel for the appellants submitted that the appellants had been in prison from 13th September, 2003 to 19th October, 2003 prior to the trial as can be seen from conviction warrant, and he is in jail from 26th October, 2009 till date i.e. about three years and three months. He submitted that considering the genesis of the incident and absence of any Criminal history, sentence inflicted upon the appellant ought to be reduced. Considering the nature of assault as also relationship of the parties and absence of Criminal history of appellant Bhausing, I would reduce the sentence of rigorous imprisonment for seven years to rigorous imprisonment for three years and three months while increasing fine from Rs. 2,500/- to Rs. 25,000/- or in default of payment of fine further rigorous imprisonment for a period of 18 months. 13. In view of the afore going, the appeal is partly allowed. Conviction of the appellant Gulab Onkar Pawar for the offence punishable under Section 307 of the Indian Penal Code and sentence of rigorous imprisonment for a period of seven years with a fine of Rs. 2,500/- or in default of payment of fine further rigorous imprisonment for a period of 18 months is set aside. He is acquitted of the said offence. Conviction of the appellant Bhausing Gulab Pawar for the offence punishable under Section 307 of the Indian Penal Code is altered to that for the offence punishable under Section 325 of the Indian Penal Code. His sentence is reduced to rigorous imprisonment for a period of three years and three months with a fine of Rs. 25,000/- or in default of payment of fine further rigorous imprisonment for a period of 18 months. If the fine is recovered, the entire amount shall be paid to PW-8 Sahebrao Santosh Pawar, who has been injured. Appeal partly allowed.