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2019 DIGILAW 1153 (BOM)

Deepak v. State of Maharashtra

2019-04-26

V.M.DESHPANDE

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JUDGMENT : V.M. DESHPANDE, J. 1. By the present appeal, the appellant is challenging the judgment and order of conviction dated 04.02.2006 passed by learned 4th Ad hoc Additional Sessions Judge, Amravati in Sessions Trial No.226/2001. By the said judgment, the appellant was found to be guilty for committing an offence punishable under Section 326 of the Indian Penal Code (IPC). The Court below awarded punishment of rigorous imprisonment for two years and payment of fine of Rs.1,000/- in default, sufferance of rigorous imprisonment for three months. 2. The criminal law was set into motion by Gajanan Ugale (PW6) on 03.07.2001. This Gajanan Ugale did not support the prosecution case whole heartedly and was required to be declared as hostile to the prosecution. Hanumantrao Wadde (PW14), a Police Inspector of Police Station, Walgaon who scribed the oral report of Gajanan, has proved the same and it is at Exh.-124. 3. As per the oral report, on 03.07.2001 at 10.00 O'clock, injured Narendra (PW3), cousin of first informant, was proceeding towards his house after closing his shop. At that time, Dilip Munde (PW2) was accompanying him. At that time, the appellant, his brother Madan and one unknown person came on scooter and they assaulted Narendra by means of knife and ran away from the spot. First informant and others from the locality rushed. They took Narendra to Irwin Hospital, Amravati. PI Wadde (PW14) registered a crime against the appellant, his brother Madan and an unknown person vide Crime No.73/2001 for an offence punishable under Section 307 read with Section 34 of the IPC. He visited the spot of occurrence and prepared the same under spot panchanama (Exh.-88). A scooter was also seized under seizure panchanama (Exh.-126). He also recorded statement of witnesses. He got the information that appellant and other accused Madan are arrested by PSI Shaukat Ali (PW13) posted at Nagpuri Gate Police Station, Amravati for committing a cognizable offence. Therefore, he took their custody from the said police station. He also referred the appellant for medical examination. During the Police Custody Remand (PCR), appellant and Madan gave discovery statement and agreed to show the place where they have concealed the weapon. Accordingly, their statements were recorded and police party retrieved one 'Katyar' from the place shown by the appellant under seizure panchanama (Exh.-133). He recorded statement of Narendra on 12.07.2001. During the Police Custody Remand (PCR), appellant and Madan gave discovery statement and agreed to show the place where they have concealed the weapon. Accordingly, their statements were recorded and police party retrieved one 'Katyar' from the place shown by the appellant under seizure panchanama (Exh.-133). He recorded statement of Narendra on 12.07.2001. In the meanwhile, he was transferred and therefore, further investigation was conducted by Lalsingh Rathod (PW15), who filed the charge-sheet in the Court of law. 4. Learned 6th Ad hoc Additional Sessions Judge, Amravati, in Sessions Trial No.226/2001, framed charge against three persons including appellant, who was shown as accused no.2 in the prosecution case, for an offence punishable under Section 307 read with Section 34 of the IPC. 5. The prosecution examined in all 15 witnesses. The defence also examined a defence witness Bahinabai (DW1), mother of the appellant. After appreciation of the prosecution case, the Court below acquitted all the three persons, who were charged, of the offence punishable under Section 307 read with Section 34 of the IPC. However, the Court below convicted the appellant for an offence punishable under Section 326 of the IPC. The State did not file any appeal challenging the acquittal of the accused persons of the offence punishable under Section 307 of the IPC. 6. Heard Mr. Shingne, learned counsel for the appellant and Mr. Joshi, learned A.P.P. for the State. It is the submission of learned counsel for the appellant that even accepting the entire prosecution case as it is, the appellant cannot be convicted for the offence punishable under Section 326 of the IPC, inasmuch as the nature of injury is not proved by the prosecution. He, therefore, submitted that at the most, the appellant can be convicted for the offence punishable under Section 324 of the IPC. He submitted that the incident in question has occurred in the year 2001. The appellant is not having any criminal background and therefore, leniency can be shown in favour of the appellant in respect of quantum of the punishment also, are his submissions. Per contra, learned A.P.P. has vehemently opposed the submissions made on behalf of counsel for the appellant and supported the impugned judgment. 7. Though, the prosecution has examined in all fifteen witnesses, seven witnesses have turned hostile, including the first informant, Gajanan Ugale (PW6), cousin of injured Narendra. Per contra, learned A.P.P. has vehemently opposed the submissions made on behalf of counsel for the appellant and supported the impugned judgment. 7. Though, the prosecution has examined in all fifteen witnesses, seven witnesses have turned hostile, including the first informant, Gajanan Ugale (PW6), cousin of injured Narendra. Even Dilip (PW2) who, according to the prosecution, was accompanied Narendra at the relevant time, has also turned hostile. His evidence is of no use for the prosecution. Independent eye witnesses; Kailash (PW4) is also not supporting the prosecution. The pancha witnesses have also turned hostile. According to the learned counsel for the appellant, defence of the accused persons that the injured and his friends assaulted on them and there took scuffle and in that scuffle, Narendra received injury accidentally, is evident from the injuries suffered by the appellant and noticed by Dr. Lalitkumar Kose (PW7) and Dr. Varsha Rode (PW8). At the first blush, the submissions of learned counsel for the appellant appear to be attractive. However, a closer scrutiny, evidence of Dr. Kose and Dr.Rode would show that the injuries suffered by the appellant were minor in nature and since the appellant himself is admitting that there was a scuffle, the evidence of Dr. Kose, who examined the appellant on 04.07.2001, that the injuries noticed on him may be caused due to fall on a stone, is having its own importance. No doubt true, Exh.-104 shows that appellant was referred for X-ray by Dr. Kose (PW7) on 04.07.2001, however, when Dr. Rode (PW8) examined him on 06.07.2001, she could not notice any abnormality on the person of the appellant suggestive of fracture. Therefore, in the aforesaid backdrop, the minor injuries appearing on the person of the appellant loses its importance and the injury on the person of the appellant by itself is not suggestive that the prosecution case is fabricated against him. 8. Star witness in this prosecution case is Narendra Ugale (PW3), whose evidence is fully corroborated by Anil (PW5), and is not at all shattered during their cross-examination, to cast any doubt about the role of the appellant that he gave blow of weapon in his hand on the person of Narendra. 9. Since there is no difficulty for accepting the evidence of Narendra, the injured and Anil (PW5) about the assault made by the appellant, the question is; what offence the appellant has committed. 9. Since there is no difficulty for accepting the evidence of Narendra, the injured and Anil (PW5) about the assault made by the appellant, the question is; what offence the appellant has committed. Whether the appellant could be convicted for the offence punishable under Section 326 of the IPC or whether he could be punished for lesser offence, as submitted by the learned counsel for the appellant. 10. The incident in question has occurred on 03.07.2001. As per the evidence of Anil Nagdive (PW5) he and others put Narendra in an auto-rickshaw and brought him to Irwin Hospital, Amravati. Though, Narendra was brought to Irwin Hospital and he was examined there and was referred to hospital at Nagpur, no medical personnel from Irwin Hospital is examined by the prosecution, for the reasons best known to it. Neither any Medico Legal Certificate at the behest of Irwin Hospital authorities at Amravati is filed on record. 11. Insofar as injury is concerned, the prosecution has examined Dr. Pradip Dixit (PW10), who was serving as Medical Officer at Government Medical College, Nagpur. From his examination itself, it is clear that Dr. Dixit has never examined Narendra and he prepared the injury certificate (Exh.-114) on the basis of bed-head-ticket. As per his evidence, following two injuries were found: "(1) Stab wound are ant abdominal wall (ii) size 2 X 0.5 cm (sutured at Amravati). (2) Stab wound over ant aspect of chest over precordium 3 X 0.5 cm. (sutured at Amravati)." 12. From his evidence, it is clear that Dr. Dixit (PW10) is not a Doctor who is having any personal knowledge in respect of the injuries of injured Narendra since he never treated him. He prepared injury certificate on the basis of bed-head ticket. Even the said bed-head ticket is also not brought on record by the prosecution. Exh.-114 shows that both the injuries were sutured at Amravati. Since the injuries were sutured at Irwin Hospital, Amravati, the Doctor who first attended the injured Narendra at Amravati and sutured the wounds, would have been competent to depose about depth of the injury. In absence of bed-head ticket, even that opportunity is also denied to the Court to notice the depth of the injury. In this backdrop, it would be appropriate to reproduce herein-below the relevant portion from the examination in chief of the injured Narendra himself. In absence of bed-head ticket, even that opportunity is also denied to the Court to notice the depth of the injury. In this backdrop, it would be appropriate to reproduce herein-below the relevant portion from the examination in chief of the injured Narendra himself. "...Dipak Pandit was holding a knife and Madan Pandit was holding a sword like weapon. Dipak Pandit assaulted me by knife firstly on my stomach but I avoided that blow, he again assaulted on my chest by knife. I was slightly injured on my stomach and was injured on my chest.." In absence of primary evidence showing depth of the injury, the aforesaid version of the injured assumes importance for determining the nature of offence. 13. According to the injured Narendra, he was assaulted by a weapon; knife. As per the discovery statement of appellant, Katyar was seized and, in my view, the learned trial Court has rightly disbelieved the discovery. Further, the knife which was shown to Narendra as a weapon of assault on him, was not identified by Narendra. In addition to that, even the weapon seized was not sent for examination to the Doctor for obtaining his opinion as to whether the injuries appearing on the person of the injured can be caused by the said weapon. 14. In Hori Lal and anr. vs. The State of U. P., (1970) AIR SC 1969, the Hon'ble Apex Court in paragraph 6 has observed thus: "6. It now remains to consider whether the conviction of the appellants under S.326 for grievous hurt is justified. The answer to this question would depend on the nature of the injuries which have been found on P.W. 2, namely, whether they are simple or grievous. In order to justify conviction under S.326 injuries on P.W. 2 must satisfy the requirements of cl. (7) or cl. (8) of S. 320 of the Indian Panel Code, otherwise they will be treated as simple injuries. Cls. (7) and (8) of S.320 I.P.C. provide that an injury could only be designated as grievous if it is (1) a fracture or dislocation of a bone or tooth, or (2) 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." The essential ingredients to attract Section 326 are; (i) Voluntary causing hurt. (ii) Hurt caused must be grievous hurt. (iii) Grievous hurt must be caused by dangerous weapon or means. "Grievous hurt" is defined under Section 320 of the IPC, which reads as under: "320. Grievous hurt.-The following kinds of hurt only are designated as "grievous":- First - 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. Fifthly, - Destruction or permanent impairing of the powers of any member or joint. Sixthly, - Permanent disfiguration of the head or face. Seventhly, -Fracture or dislocation of a bone or tooth. Eighthly, -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." 15. Even Dr. Dixit (PW10) is also silent in his evidence that the injury suffered by Narendra (PW3) was endangering to his life. Neither there is an evidence that for about twenty days, he suffered severe bodily pain nor was unable to follow his ordinary pursuit. Thus, in the light of the law laid down by the Hon'ble Apex Court in Hori Lal and anr., (supra), in my view, conviction recorded by learned trial Judge for the offence punishable under Section 326 of the IPC cannot be upheld. However, since the evidence of injured Narendra (PW3) and independent witness Anil (PW5) has stood to the scrutiny of cross-examination that Narendra was assaulted by means of knife, there is no difficulty in recording a finding of guilt for the offence punishable under Section 324 of the IPC. 16. From the impugned judgment, it is clear that the appellant was arrested on 04.07.2001 and he was released on bail on 14.09.2001. Thus, he was in jail for more than two months. There is no minimum punishment awarded for the offence punishable under Section 324 of the IPC. The incident in question has occurred in the year 2001. The appellant is neither having any criminal background nor there occurred any untoward incident involving the appellant. 17. In that view of the matter, in my view, the jail sentence for the appellant for the offence punishable under Section 324 of the IPC can be the jail sentence which the appellant has already undergone in jail. Resultantly, I pass the following order. ORDER (i) The appeal is partly allowed. 17. In that view of the matter, in my view, the jail sentence for the appellant for the offence punishable under Section 324 of the IPC can be the jail sentence which the appellant has already undergone in jail. Resultantly, I pass the following order. ORDER (i) The appeal is partly allowed. (ii) The judgment and order of conviction dated 04.02.2006 passed by 4th Ad hoc Additional Sessions Judge, Amravati in Sessions Trial No.226/2001 is hereby quashed and set aside. (iii) The appellant is acquitted of the offence punishable under Section 326 of the Indian Penal Code. Instead, he is convicted for the offence punishable under Section 324 of the IPC and the jail sentence shall be the jail period, which the appellant has already undergone in jail. Fine amount is maintained.