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2015 DIGILAW 465 (BOM)

Nandu v. State of Maharashtra

2015-02-12

S.B.SHUKRE

body2015
JUDGMENT : S.B. Shukre, J. 1. This appeal challenges the judgment and order passed on 3rd April, 1999 in Sessions Case No. 107/1992 by Additional Sessions Judge, Achalpur thereby convicting the present appellant for an offence punishable under Section 326 and also under Section 324 of the Indian penal Code together with sentence of fine of Rs. 2,000/- and default sentence of simple imprisonment for six months. Briefly stated, facts of the case are as under: (i) The appellant is son of one Narayan Jairam Sontakke and he along with his brother Shridhar Narayan Sontakke were residing at village Kakada, Police Station Pathrot, District Amravati. The complainant Harishchandra Gunwantrao Shrikhande, his brothers Raosaheb Gunawantrao Shrikhande and Vasant Gunwantrao Shrikhande were the neighbours of the appellant and his father. (ii) It appears that some dispute in between the family of the appellant and family of the complainant Harishchandra Shrikhande was going on over the issue of keeping of an agricultural equipment viz. thresher machine in front of entrance of house of Raosaheb Shrikhande. The appellant had been asked by Raosaheb Shrikhande to remove the thresher machine from that place, but no effect. (iii) At about 7.00 a.m. of 3.5.1992, fuel was added to the ongoing dispute between these two families when Vasantayounger brother of the complainant threw manure on the garbage heap near the house of the appellant and his family. Narayan father of the appellant, the appellant and his brother Shridhar saw Vasanta throwing manure on the garbage heap. They got incensed so much so that all the three persons started assaulting Vasanta and also the persons who had come there for his rescue. The appellant, in particular, brought an axe from his house and struck its blow on the head of Vasanta. As a result of the blow, Vasanta fell down on the spot with bleeding injury on his head. Sometime after, he fell unconscious and was required to taken to hospital. The other two persons, namely, Narayan and Shridhar also indulged in the assault by throwing bricks at the persons, who had gathered there. Vasanta was initially taken to Primary Health Centre, Pathrot, but as his condition was found to be serious, he was removed to Government Medical College and Hospital, Nagpur. After recovery from his head injury, Vasanta was discharged from the hospital on 18th May, 1992. Vasanta was initially taken to Primary Health Centre, Pathrot, but as his condition was found to be serious, he was removed to Government Medical College and Hospital, Nagpur. After recovery from his head injury, Vasanta was discharged from the hospital on 18th May, 1992. (iv) Meanwhile, First Information Report in respect of this incident had been filed by Harishchandra Gunwantrao Shrikhande, on the basis of which Police registered offence punishable under Section 326read with Section 34 of the Indian Penal Code against Shridharas accused No. 1, Nanduas accused No. 2 and Narayan (father of the appellant) as accused No. 3. Since there was assault from the side of the complainant also, Shridhar had filed a counter First Information Report against Raosaheb, Vasanta and Harishchandra and one also Gopal Gunwant Shrikhande in respect of the same incident. Police had also registered an offence punishable under Section 324, read with Section 34 of the Indian Penal Code against the said four persons. It appears that later on in the complaint filed by Harishchandra Section 307 was also added. Whereas the final report in the case arising from to the complaint filed by Shridhar Narayan Sontakke, who was accused No. 1 in the case committed to the Additional Sessions Judge was filed before the Court of Judicial Magistrate, First Class, Achalpur and four accused persons therein, namely, Raosaheb, Vasanta and Harishchandra and Gangadhar were tried by the Court of Judicial Magistrate, First Class in accordance with law. They were acquitted by the learned Magistrate by his judgment and order passed in Regular Criminal Case No. 98/1992, on 20th June, 1994. (v) The case that was committed to the Sessions Court was registered as Sessions Case No. 107/1992. All the three accused persons were charged with offence punishable under Sections 307and 323 read with Section 34 of the Indian Penal Code and tried in accordance with law. During the pendency of the trial, accused No. 3 Narayan Sontakke died and, therefore, trial as against him stood abated. (vi) On merits of the case, the learned Additional Sessions Judge found that the offence punishable under Section 307, read with Section 34 of the Indian Penal Code could not be proved against the accused Nos. 1 and 2. However, learned Additional Sessions Judge found that the offences punishable under Sections 326 and 324 of the I.P.C. were proved against the present appellant accused No. 2. 1 and 2. However, learned Additional Sessions Judge found that the offences punishable under Sections 326 and 324 of the I.P.C. were proved against the present appellant accused No. 2. Accordingly, learned Additional Sessions Judge by his judgment and order dated 3rd April, 1999 acquitted the accused No. 1 of all the offences with which he was charged and convicted the present appellant of the offences punishable under Sections 326 and 324 of the Indian Penal Code, directing him to undergo rigorous imprisonment for five years and also to pay fine of Rs. 2,000/-, together with default sentence of six months of further simple imprisonment. (vii) Not satisfied with the same, the appellant is before this Court in the present appeal. 2. I have heard Mr. M.N. Ahmed, learned counsel for the appellant and Mr. A.K. Bangadkar, learned Additional Public Prosecutor for the respondent/State. 3. I have carefully perused the impugned judgment and order and I have also gone through the record of the case. 4. It is the contention of the learned counsel for the appellant that the trial of the appellant has been vitiated because of the fact that there was counter case in respect of same incident which was pending before the Court of Judicial Magistrate, First Class which case, as per the law laid down by the Hon'ble Apex Court in the cases of Nathi Lal and others vs. State of U.P. and another (1990 (Supp) SCC 145, Sudhir and others Etc. vs. State of M.P. Etc., 2001 Cri.L.J. 1072 : [2001 ALL MR (Cri.) 459 (S.C.)] ought to have been tried and decided by the same Court i.e. the Court of Additional Sessions Judge along with this case but one after another and judgment delivered in both the cases one after another on the same day. He submits that this was necessary to avoid conflicting decisions being taken and opposing views being expressed in these cases in respect of the accused persons, who are the complainants in these cases. 5. Learned Additional Public Prosecutor for the respondent/State has submitted that no prejudice has been caused to the present appellant by deciding two cases separately by two different Courts on different dates and in any case now it is too late to make such a submission in the matter. 5. Learned Additional Public Prosecutor for the respondent/State has submitted that no prejudice has been caused to the present appellant by deciding two cases separately by two different Courts on different dates and in any case now it is too late to make such a submission in the matter. He submits that even if the argument of learned counsel for the appellant is to be accepted, at the most, this Court would be required to remand both the cases for their trial by the Court of Additional Sessions Judge and the incident having been more than 20 years old, there is very little possibility of material witnesses being available now. He submits that it is quite possible that either the prosecution or the accused persons might require some of these witnesses to be examined by way of their further examination in chief or further cross examination in order to throw light on the material aspects of the case, and now it may not be possible. He, therefore, submits that it is neither practical nor necessary to remand to the trial Court this case for it's trial together with the other case afresh. 6. Learned counsel for the appellant has produced before me certified copy of the judgment dated 20th June, 1994 delivered in Regular Criminal Case No. 98/1992 by Judicial Magistrate, First Class, Achalpur. This copy is taken on record and for identification purposes it is marked as document 'X'. On perusal of this judgment, I find that no observations reflecting adversely upon the conduct of the present appellants have really come on record. If this is so, I do not think that any prejudice has been caused to the present appellant by trial of the case arising from the complaint made by him, separately by the Court of Judicial Magistrate, First Class, Achalpur. Learned counsel for the appellant also could not show to me as to what has been the particular prejudice caused to the present appellant because of such separate trial of another case arising out of the same incident. It is also not known as to why no objection in this regard was taken before the learned Additional Sessions Judge by the appellant. It is also not known as to why no objection in this regard was taken before the learned Additional Sessions Judge by the appellant. Therefore, I find that on the ground that no prejudice has been caused to the appellant by separate trial of another case arising out of the same incident, the trial of the appellant in the present case cannot be said to be vitiated. Apart from the reason of no prejudice to the appellant, I also find substance in the argument of learned Additional Public Prosecutor for respondent/State that now it would neither be unrealistic nor necessary to consider trial of both these cases one after another as observed by the Hon'ble Apex Court in the case of Nathi Lal and others vs. State of U.P. and another. Therefore, I am of the considered view that peculiar facts and circumstances of the case would not entitle the appellant to seek any assistance from the said cases of Nathi Lal as well as Sudhir and others. 7. Learned counsel for the appellant has further submitted that in this case, the prosecution evidence is highly inadequate and it does not establish beyond reasonable doubt any offence punishable under Section 326. He submits that the requirements of an offence under Section 326 of the Indian Penal Code are that the injury must be grievous in nature and that it must have been caused by a deadly weapon. He submits that both these requirements have not been proved beyond reasonable doubt by the prosecution and, therefore, at the most, the injury would have to be regarded as simple and as caused by dangerous weapon which offence is punishable under Section 324 of the Indian Penal Code. 8. Learned Additional Public Prosecutor for the respondent/State submits that even though the medical evidence is somewhat discrepant in nature in this case, the evidence of the eye witnesses is cogent and consistent and if that evidence is taken into consideration in its entirety, it would lead to only one conclusion and it is that the injury suffered on the head by PW 5-Vasanta was grievous in nature, it was a fracture of parietal bone on his head and it was caused, by a dangerous weapon by the present appellant and, therefore, there is no ground made out for making any interference with the findings recorded by the trial Court. 9. 9. Upon perusal of the evidence available on record, I find it difficult to accept the argument of learned Additional Public Prosecutor for the respondent/State and I am of the view that there is considerable force in the argument canvassed on behalf of the appellant. 10. PW 5-Vasanta is the injured person and his evidence shows that this appellant had dealt an axe blow to his head, because of which he sustained bleeding injury over his head. His evidence appears to be supported by the evidence of two eye witnesses, PW 3-Narayan and PW 4-Pramod. Both of them have stated that PW 5-Vasanta was given a blow on his head by means of an axe by the present appellant. These two eye witnesses have also stated that PW 3 Narayan had snatched the axe from the hands of the present appellant and kept it at the hotel of one Wasudeo Moraskar. 11. So far as the evidence of injured person PW 5-Vasanta on his sustaining an injury to his head, which was caused by the present appellant is concerned, I find that it is quite consistent and also supported by the injury reports. The injury report vide Exh. 45 issued by PW 8-Dr. Nana Hantodkar Medical Officer posted to Primary Health Centre, Pathrot, shows that PW 5 Vasanta had sustained incised wound on parietal region and it was caused by a sharp weapon. However, I find that as regards the nature of the wound and also the opinion expressed by PW 8-Dr. Nana Hantodkar that the would was caused by sharp weapon, there is some doubt and this would be dealt with in the latter part of this judgment. For the purpose finding of whether PW 5-Vasanta sustained injury over his head or not, suffice it to say that the injury certificate vide Exh. 45 as well as evidence of PW 8-Dr. Nana Hantodkar, who had examined PW 5-Vasanta on 3rd May, 1992 together, disclose that PW 5-Vasanta had sustained a bleeding injury over his head. 12. Learned counsel for the appellant has invited my attention to the medical evidence as well as circumstantial evidence to support his argument that the weapon allegedly used for causing of head injury to PW 5 Vasanta was not used in commission of the alleged crime in this case. 12. Learned counsel for the appellant has invited my attention to the medical evidence as well as circumstantial evidence to support his argument that the weapon allegedly used for causing of head injury to PW 5 Vasanta was not used in commission of the alleged crime in this case. He submits that no blood stains have been found to be present on the axe and that the subsequent injury report issued by Dr. B.S. Gedam records a somewhat contradictory opinion as regards the nature of injury and, therefore, he submits that it cannot be said that the prosecution has proved beyond reasonable doubt that PW 5-Vasanta had sustained a grievous injury and it was caused by a deadly weapon like axe. So far as concerned the discrepancy in the medical evidence and also absence of blood stains on the axe seized from the custody of Wasudeo, learned Additional Public Prosecutor for the respondent/State fairly concedes that this is what the prosecution evidence is and, therefore, he leaves it to the discretion of the Court to draw an appropriate inference in the matter. 13. C.A. report vide Exh. 57 without any doubt discloses that no blood stains were found to be present on the axe seized in this case. If no blood stains have been found, it is difficult to accept the contention that the axe seized in this case was the weapon which was actually used by the appellant for causing of head injury to PW 5-Vasanta and, therefore, I find that the axe is not connected to the crime alleged against the appellant. For this conclusion, I would like to draw support from the case of the State of Karnataka vs. Dastagirsab and others, reported in 1981 CRI.L.J. 1157, in which Division Bench of Karnataka High Court had in a similar situation, found that the weapon could not be connected to the alleged crime. 14. There is another injury certificate vide Exh. 67 issued by PW 12-Dr. Sunil Ramswarup Sangai. This report has been issued by PW 12-Dr. Sunil on the basis of the notings made in the bedhead ticket of PW-5 Vasanta while he was undergoing treatment as an indoor patient at Nagpur Hospital. PW 12-Dr. Sunil candidly admits that he had no occasion to personally examine PW 5-Vasanta as a patient. Sunil Ramswarup Sangai. This report has been issued by PW 12-Dr. Sunil on the basis of the notings made in the bedhead ticket of PW-5 Vasanta while he was undergoing treatment as an indoor patient at Nagpur Hospital. PW 12-Dr. Sunil candidly admits that he had no occasion to personally examine PW 5-Vasanta as a patient. These notings indicated that the head injury that was suffered by PW 5-Vasanta was caused by some blunt object, which is inconsistent with opinion of PW 8-Dr. Nana Hantodkar. Then, while issuing the injury report (Exh. 67) PW 12-Dr. Sunil, had also relied upon the CT scan of the head of PW 5-Vasanta and then he had expressed an opinion that PW 5-Vasanta had sustained a depressed fracture of right parietal bone. Dr. B.S. Gedam has not been examined as a witness nor the CT scan has been produced in evidence by the prosecution. Even the radiologist, who took the CT scan has not been examined as a prosecution witnesses in this case. But, the fact remains that, there is an injury certificate issued by Doctor PW 12-Sunil, vide Exh. 67, which records an opinion in contrast to the opinion given by PW 8-Dr. Nana Hantodkar as regards the nature of injury. While PW 8-Dr. Nana Hantodkar says that the injury that he found to be present on the head of PW 5 Vasanta was an incised wound, while in the opinion of PW 12 Dr. Sunil this injury was a lacerated wound. The injury certificate vide Exh. 67 shows that the injury was caused by a blunt object and it was in the nature of a depressed fracture while, the injury certificate vide Exh. 45 shows that it was an incised wound caused by a sharp weapon. These contradictory opinions give rise to a serious doubt about the nature of injury and the instrument by which it could have been caused. In order to clear this doubt, it was absolutely necessary for the prosecution to have examined Dr. B.S. Gedam and also the concerned radiologist. It was also necessary for the prosecution to have produced in evidence the CT scan report. But, nothing has been done by the prosecution and, therefore, the doubt which has arisen in this case has been left un-cleared. 15. B.S. Gedam and also the concerned radiologist. It was also necessary for the prosecution to have produced in evidence the CT scan report. But, nothing has been done by the prosecution and, therefore, the doubt which has arisen in this case has been left un-cleared. 15. As a result, of the above discussion of prosecution evidence, it will have to be found that the prosecution has failed to prove beyond reasonable doubt that the injury suffered by PW 5-Vasanta was grievous in nature and that it was caused by a deadly or dangerous weapon as contemplated under Section 326 of the Indian Penal Code. But, as already found by me, the injury was indeed sustained by PW 5-Vasanta and having regard to prosecution evidence, it would have to be held that it was simple in nature. Then, it has also come in the evidence of PW 4-Pramod that accused No. 1 Shridhar and accused No. 3-Narayanhad pelted bricks at the persons who had come to the rescue of Vasanta and this evidence suggests that it is quite likely that the injury that was sustained by Vasanta on his head might have been caused by getting hit on head by a brick. The brick, when used as a weapon of offence can be dangerous for life of a person and, therefore, I find that the present case would be covered not by an offence punishable under Section 326 of the Indian Penal Code, but by an offence of causing of simple hurt by a dangerous weapon punishable under Section 324 of the Indian Penal Code. 16. On going through the impugned judgment and order, it is noticed that the learned Additional Sessions Judge has ignored the material discrepancies in the medical evidence and what has been brought on record by the circumstantial evidence and as a result, learned Additional Sessions Judge has come to an erroneous conclusion that the prosecution has proved beyond reasonable doubt that the present appellant caused grievous hurt to PW 5 Vasanta by means of a deadly weapon. Therefore, the impugned judgment and order deserve to be interfered with only to the extent that they convict the appellant for an offence punishable under Section 326 and sentence him for the said offence. Therefore, the impugned judgment and order deserve to be interfered with only to the extent that they convict the appellant for an offence punishable under Section 326 and sentence him for the said offence. However, the finding recorded by the trial Court as regards bringing home to the appellant his guilt for an offence punishable under Section 324 of the Indian Penal Code does not call for any interference. On the question of legality and correctness of the sentence awarded by the trial Court for an offence punishable under Section 324 of the Indian Penal Code, however, the appellant and prosecution would have to be heard. 17. At this juncture, learned counsel for the appellant has submitted that the appellant was in jail for a period of more than 15 days, although he is not sure in this regard as the record available before the Court does not give any clear cut indication about the same. But, he submits that it is a fact that the appellant has already undergone some detention in this case and that the appellant as well as the family of the complainant are still residing in the same village without any further deterioration of their inter se relations. Therefore, he submits that a lenient view deserves to be taken in this case by confining the period of detention already undergone by the appellant. 18. Learned Additional Public prosecutor for the respondent/State opposes the argument and submits that no such interference is warranted in the facts and circumstances of the case. 19. Upon consideration of the argument of both sides, I am of the view that the submission that because of the subsequent developments in this case, a lenient view deserves to be taken is impressive. It is not in dispute that the appellant and the family of the complainant are still residing in the same village and their inter se relations have not been worsened over a period of time. No complaints from the side of the complainant have been received by the Police regarding misbehaviour or misconduct on the part of the appellant. It is not in dispute that the appellant and the family of the complainant are still residing in the same village and their inter se relations have not been worsened over a period of time. No complaints from the side of the complainant have been received by the Police regarding misbehaviour or misconduct on the part of the appellant. The incident has taken place about more than 20 years back and during this period of time, the appellant, apart from undergoing the detention has suffered a great mental trauma because of pendency of this case, which when taken along with his detention already undergone together should be an adequate punishment for the appellant. In this view of the matter, I find that now lenient view can be taken and taking so, I find that the appellant deserves to be sentenced to suffer imprisonment which is equivalent to the period of detention already undergone by him. 20. In the result, the appeal is partly allowed. 21. Conviction of the appellant for an offence punishable under Section 326 of the Indian Penal Code is hereby quashed and set aside. However, his conviction for the offence punishable under Section 324 of the Indian Penal Code is maintained and in modification of the sentence awarded by the learned Additional Sessions Judge in the impugned judgment and order, it is directed that the appellant shall undergo simple imprisonment which is equivalent to the period of detention already undergone by him. 22. The fine amount imposed by the Additional Sessions Judge for the offence under Section 324 of the Indian Penal Code is confirmed. The appeal is disposed of in these terms.