Fulchand Agashe & Anr. vs The State Of Maharashtra

The present appeal is preferred against judgment and order dated 16.03.2019 passed by the learned Sessions Judge, Bhandara, in Sessions Trial No.38 of 2016, whereby both the appellants are convicted for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code (hereinafter referred to as “the IPC”, for the sake of brevity) and to suffer rigorous imprisonment for a period of five years and in addition to pay fine of Rs.10,000/-each, in default, to suffer imprisonment for six months.

Appellant No.1 is the father of appellant No.2. The acquisition against the appellants is that they have assaulted Gopichand, brother of appellant No.1, his wife and sons by using a spade and a Dhemasa, i.e., a solid wooden log generally tied to the neck of a she-buffalo. The incident has occurred on 29.04.2016 at around 9:30 a.m.

As per the prosecution case, Gopichand was digging a pit in the backside of his house for the construction of a toilet. The excavated soil was being thrown in the field of the appellants. The appellants prevented Gopichand from depositing the excavated soil on their land, since, according to them, it would obstruct the free flow of wastewater. It is the prosecution case that Gopichand told the appellants that the soil was being deposited in their own land. At this, the appellants got agitated and appellant No.1 picked up a spade in his hand and appellant No.2 picked up Dhemasa. Appellant No.2 inflicted a blow on the head of Gopichand and his wife, Ramabai, by means of a Dhemasa. It is further stated that when Abhay, son of Gopichand, tried to intervene, appellant No.2 inflicted a blow on his head as well by means of Dhemasa. It is also stated that when the informant, Ajay, intervened, he was also beaten up by means of the Dhemasa. The allegation against appellant No.1 is that he had assaulted Gopichand and his wife, Ramabai by the wooden portion of spade.

On the same day, i.e., 29.04.2016, the informant, Ajay, lodged a report with respect to the incident. On the basis of which, offence punishable under Section 307, 324, 323 read with Section 34 of the IPC came to be registered against the appellants. Upon completion of investigation, charge-sheet was filed. As the offence punishable under Section 307 of the IPC is triable by the Court of Session, the learned Magistrate committed the case to the learned Sessions Court. The learned Sessions Court framed charge against the appellants vide Exhibit 17. While framing the charge, the name of wife of Gopichand is mentioned as Laxmi instead of Ramabai.

The prosecution has examined thirteen witnesses in all including Gopichand (P.W. 4) the father of informant, Abhay (P.W. 7), his brother; Laxmibai (P.W. 8), Paternal aunt; Avinash (P.W. 9), Medical Officer; Dr. Dhananjay (P.W. 11) Medical Practitioner and Dr. Avinash, (P.W. 12) Medical Officer; and Dr. Sandip Ghodeswar (P.W. 14).

As stated above, the learned Sessions Court has convicted both the appellants for the offence punishable under Section 307. The learned Sessions Court has recorded that the evidence of the injured eye-witnesses was consistent with each other. It is also found that as per evidence of P. W. 14, Dr. Sandip Ghodeswar, Ramabai was disoriented and in a confused state of mind and, as such, not fit for recording her statement. The doctor has issued certificate dated 26.10.2018 to this effect which is at Exhibit 83.

The medical evidence is in the form of depositions of three doctors and reports at Exhibits 49 (Ajay) and medico-legal certificates at Exhibit 62 (Abhay), Exhibit 63 (Gopichand) and Exhibit 64 (Ramabai). The query report at Exhibit 65 shows that the injuries caused are possible by the spade and Dhemasa.

The learned Sessions Court has found that the depositions with respect to assault by all the witnesses are consistent, the medical evidence supports the case of prosecution and the Dhemasa, which was concealed by appellant No.2 in a heap of paddy straw was also discovered on his instance. It is found that the Chemical Analyser’s (C.A.) report also supports the prosecution case.

In the light of aforesaid, the learned Sessions Court had convicted the appellants for the offence punishable under Section 307 read with Section 34 of the IPC and had accordingly imposed punishment of rigorous imprisonment of five years.

Mr. Daga, learned advocate for the appellants contends that all the injuries on the body of informant Ajay, his brother, Abhay, and father, Gopichand, are simple injuries. As regards Ramabai, the learned advocate draws attention to the charge at Exhibit 17 to contend that charge is not framed with respect to alleged assault on Ramabai. The learned advocate contends that having regard to the nature of injuries, conviction, at best, could have been sustained under Section 323 of the IPC for causing simple hurt. It is argued that since the injuries are not grievous in nature, question of conviction under Section 307 of the IPC does not arise.

The learned advocate refers to deposition of Dr. Avinash Shende (P. W. 12) at Exhibit 60 to contend that the injury suffered by Abhay were simple in nature and although injuries to Gopichand and Ramabai are referred as grievous, the injury certificates do not indicate that they fall within the definition of grievous hurt as defined under Section 320 of the IPC. It is argued that going by the prosecution story itself, the incident has occurred at the spur of the moment and that the weapons of assault are also equipments which are generally available with agriculturists in the agricultural lands. The learned advocate contends that the incident has occurred without any premeditated mind. Apart from this, on merits, it is contended that no independent witnesses have been examined by the prosecution to prove that the injuries have been inflicted by the appellants. He contends that the learned Sessions Court has erred in convicting the appellants in the absence of any independent corroboration of oral evidence of the informant, his father and brother.

Per contra, Mr. Damale, learned APP supports the findings recorded by the learned Sessions Judge and the conclusion arrived at. It is argued that in order to attract Section 307 of IPC, nature of injury caused is not material. It is contended that intention to cause death, by itself, is sufficient to attract ingredients of Section 307. Apart from this, it is vehemently argued that the version of prosecution is supported by the evidence of injured persons, which finds corroboration with the medical evidence. The learned APP states that evidence of P. W. 8, Laxmibai, is also available in order to support the prosecution case. The learned APP points out that the said Laxmibai is in fact family member of the accused.

At the outset, it will be appropriate to deal with contention of Mr. Daga that charge is not framed with respect to assault on Ramabai. Indeed, perusal of the charge at Exhibit 17 will demonstrate that name of Ramabai is not mentioned therein. The charge instead refers to Laxmi as one of the persons who was assaulted. It will be pertinent to state that appellant No.1 and Gopichand are real brothers. Appellant No.2 is son of appellant No.1 and, as such, nephew of Gopichand. The other persons who have been injured are wife and sons of Gopichand. Thus, the appellants and accused are family members and they are also neighbours. Laxmi, whose name is mentioned in the charge is, in fact, examined as a witness by the prosecution. She is also a family member and has not suffered any injury.

In view of the above, it must be stated that, although the name of Laxmi is erroneously mentioned in the charge instead of Ramabai, the said mistake has not caused any confusion to the appellants. It has not prejudiced them in defending themselves. In this regard, it will also be appropriate to refer to Section 215 of the Code of Criminal Procedure (hereinafter referred to as “CrPC” for the sake of brevity), which provides that no error in framing charge shall be regarded as material unless the accused was, in fact, mislead by such error or omission and the same has resulted in failure of justice. In the peculiar facts of the present case, a mere mistake in mentioning name of one of the injured persons, i.e., Ramabai has not caused any prejudice to the appellants. It will be pertinent to state that the prosecution witnesses have all-throughout maintained that Ramabai was assaulted and had suffered injury in the incident and she was also medically examined and her medical papers are also proved during the course of evidence of doctors.

The first contention of Mr. Daga is that the charge is not framed with respect to the injuries stated to be suffered by Ramabai is, therefore, not acceptable.

The second contention raised is that, apart from the family members of the informant, no other independent witness is examined. In this regard, it will be appropriate to refer to deposition of Laxmibai at Exhibit 45. She is related to the appellants and the family of informant. She has specifically stated that she was in the courtyard of her house, preparing Papad at the time when the incident occurred. She has stated that Gopichand, Ramabai and Abhay were digging soil for the purpose of construction of a toilet and that the appellants had raised issue with respect to drainage of water from their land due to the deposit of soil. She has stated that, thereafter a quarrel ensued between the appellants and Gopichand. She has specifically deposed that appellant No.2 assaulted Gopichand, Ramabai and Abhay by means of Dhemasa and appellant No.1 also assaulted the said three persons by wooden handle of spade. She has stated that when Ramabai fell unconscious, she had raised an alarm by shouting “run, run, Ramabai has died”. It is also stated that her husband, Nilkanth and son Mangesh, immediately arrived at the spot and pacified the quarrel. She has also identified the weapons of assault. Nothing worthwhile is elicited in her cross-examination. It is merely suggested that she had good relations with Gopichand and his wife, Ramabai, which she has admitted. Apart from this, a case is sought to be made out that instead of stating that appellant No.1 assaulted by means of handle of the spade, she had narrated to the police that the assault by him was by the spade. Apart from this, a suggestion is given that she has not witnessed the incident, which she has denied.

It will be appropriate to refer to answer to question No.25 given by appellant No.1 in his statement recorded under Section 313 of the Cr.P.C. He has stated that the injured persons were depositing soil on the way and he merely asked him not to do so. He has stated that Gopichand arrived with a spade in his hand and threatened to kill him (appellant No.1). He has stated that there was a scuffle between himself and Gopichand. As against this, appellant No.2 has stated that, he was not at the spot of the incident and is, therefore, not aware as to how the incident had occurred.

The occurrence of incident is thus admitted to the extent that the appellants had assaulted Gopichand, his wife and two sons. Perusal of evidence of informant, Ajay, his father, Gopichand and brother, Abhay, is consistent. They have specifically mentioned that appellant No.2 had assaulted them and his father appellant No.1 had assaulted by means of spade. This evidence is supported by evidence of Laxmibai, who is a family member of both parties. The medical evidence is also consistent with the version of the deposition of the said witnesses. In view of the aforesaid, the findings that the appellants are authors of the injuries sustained by the four injured persons appears to be just and proper and in accordance with the evidence that has come on record. The prosecution has clearly established that all the four persons had sustained injuries on being attacked by the appellants. The Dhemasa is discovered at the behest of appellant No.2. It was discovered under a heap of a paddy straw. The Dhemasa and handle of the spade have bloodstains. The clothes of the appellants and the injured persons also have bloodstains.

Perusal of Exhibit 81 will demonstrate that blood group of Abhay, Gopichand and Ramabai is ‘O’, and that of appellant No.2 is ‘B’ and that blood group of appellant No.1 could not be determined. Further, perusal of C.A. report at Exhibit 81 will indicate that the earth at the spot of incident, spade and clothes seized are stained with human blood having blood group, ‘O’. This also supports the prosecution case.

It will now be appropriate to deal with the principal contention of Mr. Daga with respect to applicability of Section 307. Mr. Daga as recorded above, vehemently argued that, since all the injuries are simple in nature, it will not be correct to arrive at inference that the appellants with an intention to cause homicidal death of the injured persons amounting to murder. He, therefore, contends that learned Sessions Court has erred in convicting the appellants under Section 307. His contention is that having regard to the nature of injuries, conviction, at best, could be sustained under Section 323 for causing hurt. Even if the contention of Mr. Daga is accepted, the conviction will not be under Section 323, but under Section 324, since injuries are caused by means of weapon. The Dhemasa is a solid wooden log which is normally tied to neck of she-buffalo. Likewise, wooden handle of a spade is also a strong piece of reasonable girth.

Mr. Daga has placed reliance on judgment of the Hon’ble Supreme Court in the case of Shivamani and anr. Vs. State represented by Inspector of Police^{11.2023 SCC Online SC 1581} to contend that in order to invoke Section 307 of the IPC, although it is not necessary that the bodily injury should be capable of resulting in death and what is important is that the act must have been committed with an intention or knowledge to cause death. In the said case, a conviction under Section 307 was converted into Sections 323 and 324 of the IPC on the ground that there were no allegations of repeated or severe blows being inflicted by the accused persons and the nature of injuries was also found to be simple. Relevant observations in paragraphs 9 to 11 of the judgment are reproduced herein-below:-

In the said case, the evidence of doctor suggested that the injuries were simple in nature. The injuries were not on any vital parts of the body. The incident was not preplanned and the accused persons had not inflicted repeated blows on the injured. Perusal of the judgment indicates that one of the injured persons was beaten by hands on his cheek and he had attempted to attack him with a knife and there was an allegation that he had tried to attack by means of a knife, however, he had suffered only abrasions on his right shoulder and left thumb. The other injured person was attacked with means of a cold-drink bottle on her back. It is in this circumstances that the Hon’ble Supreme Court has held that an intention to commit murder was not exhibited and, as such, Section 307 of IPC was not attracted.

With respect, the ratio of the said judgment cannot be made applicable to the facts of the present case. In the present case, appellant No.2 has assaulted all the four injured persons by means of Dhemasa, which is a very heavy piece of wooden log. The injuries on Gopichand, Ramabai and Abhay are on the head, which is a vital part. Injuries suffered by the informant, Ajay, are not on vital parts of the body. Likewise, the allegation against appellant No.1 is also that he has inflicted injury by means of wooden handle of spade on the head. It is also established that the appellants have not suffered any injury on their person. They were the aggressors, who have assaulted their family members on vital part with weapons. It must be stated that the appellants did not stop after assaulting one of the family members. All the four family members, who were present at the site were beaten-up. It will also be appropriate to refer to the medical papers and evidence of the doctors. The informant, Ajay has suffered injuries in the nature of abrasions over his left wrist, forearm and left ear and one contusion over the left scapular region. These, injuries according to P.W. 9, Medical Officer are caused by a hard and blunt object.

Perusal of evidence of P.W. 11, the medical practitioner will demonstrate that he has conducted CT scans of Gopichand and Ramabai. It is found that Ramabai had swelling on her brain on account of the injuries suffered by her. With respect to injuries suffered by Ramabai it is stated that the injury was of grievous nature and could have caused her death. As regards Gopichand, he has stated that there was blood haematoma on his scalp and that the injuries suffered by him were not of grievous nature. The CT Scan reports are also placed on record.

P. W. 12, Medical Officer who has examined Gopichand, Ramabai and Abhay has opined that injuries suffered by Abhay were simple in nature, however, injuries suffered by Gopichand and Ramabai were grievous in nature. He has also opined that injuries caused to Gopichand and Ramabai were sufficient, in the ordinary course of nature, to cause their death. In his cross-examination, the doctor has stated that he has not mentioned that injuries suffered by Gopichand and Ramabai were sufficient to cause their death in the ordinary course of nature.

It will also be appropriate to refer to evidence of P. W. 14, Medical Officer, who has stated that he had examined Ramabai on 26.10.2018 and upon examination, he found that she was not in a position to speak, since she was disoriented and in a confused state of mind. He stated that she was not in a condition to depose before the Court. Medical certificate dated 26.10.2018 records that Ramabai was suffering from post-traumatic amnesia and was disoriented and in confused state of mind. This certificate dated 26.10.2018 is issued after a period of around two and half years from the date of incident.

Having regard to the nature of weapons used and the nature of injuries caused, it will not be possible to accept the contention of Mr. Daga that conviction at best can be under Section 323 or 324 of the IPC for causing simple injury.

Having held so, it must also be stated that the incident occurred at the spur of the moment. The family of the injured persons were digging a pit and the soil excavated was being deposited at a particular place which, according to the appellants, would have stopped the flow of water from their agricultural land. Gopichand (father of informant) continued with the work of digging. It has also come in the evidence of Laxmibai that there was an argument between both sides on this issue. In this backdrop, the accused persons carried out the assault. The weapons of assault are normal agricultural equipment, which are generally lying in the fields of agricultural lands. The assault is not premeditated.

The evidence on record will demonstrate that three persons have suffered serious injuries on their heads. The informant has suffered three injuries, which are not on any vital part of the body. In the event, accused No.2 had any intention of causing death, he would not stop at inflicting a single blow. Likewise, if accused No.1 had any intention of causing death, he could have inflicted wounds by the sharp side of the spade. Accused No.2 has assaulted by wooden stick of the spade. Thus, it can be said that both the accused persons did not have any intention of causing death. Although accused No.2 had knowledge that the injury inflicted by him with the Dhemasa was likely to cause death, particularly since the blow was on the head. It must be borne in mind that the dispute arose on account of depositing of soil by the family members of the informant in such a manner that, in the opinion of the accused persons, it blocked the flow of water from their field. The accused persons are agriculturists. As noticed above, the incident has occurred at the spur of the moment. Accused No.1 had asked his brother Gopichand not to deposit the soil so as to block the flow of water from his field, but Gopichand continued to do so. The weapons of assault, as stated above, are equipments of agriculturists. There is no premeditation on the part of the accused persons. Having regard to the totality of circumstances, it must be held that, in the event of death of any of the injured persons, the case would have fallen under Section 304 Part II and not under Section 302 of the IPC. Since none of the persons has expired, the case will not be one of attempt to commit murder, but one of attempt to commit culpable homicide punishable under Section 304 Part II. Therefore, Section 307 of IPC will not be attracted. The conviction should be under Section 308 of IPC.

Perusal of Section 304 of the IPC will demonstrate that in case where death is caused with an intention to cause death or causing bodily injury i.e. likely to cause death, the punishment prescribed is imprisonment for life or imprisonment for a period, which may extend up-to 10 years. As against this, in case where death is caused by performing an act with the knowledge that it is likely to cause death but without any intention to cause death or to cause a bodily injury which is likely to cause death, the punishment prescribed is imprisonment which may extend up-to 10 years.

In the present case, while considering the sentence to be imposed, the learned Sessions Court has considered to show leniency to the appellants, since they are cultivators. Submissions made on behalf of the appellants/accused before the learned Sessions Court will indicate that both the appellants do not have any previous criminal record and they are the sole earning members of the family. Having regard to the fact that the the appellant No.2 is aged around 40 years, the incident had occurred at the spur of the moment without any premeditation and the conviction is converted from Section 307 to 308, in the considered opinion of this Court, ends of justice will be subserved by imposing sentence of three years and six months, which is half of the maximum sentence permissible under Section 308 against appellant No.2

As regards appellant No.2, he is now around 63 years of age. As observed above, the learned Sessions Judge has deemed it appropriate to take a lenient view by imposing a lesser punishment against the appellants, since they are cultivators. As noticed above, the incident occurred at the spur of the moment. Appellant No.1, although armed with the spade, did not inflict blows with the sharp metal portion of the spade, but only with the wooden handle of the spade. The offence under Section 308 of the IPC is punishable with maximum sentence of 7 years. Therefore, as regards appellant No.1, his sentence is restricted to two years. Accordingly, the appeal is partly allowed in the following terms:-

I. Judgment and order dated 16.03.2019 passed by the learned Sessions Judge, Bhandara is modified as follows:-

Both the appellants/accused are convicted for the offence punishable under Section 308 read with Section 34 of the Indian Penal Code, vide Section 235 (2) of the Code of Criminal Procedure and sentenBoth the appellants/accused are convicted for the offence punishable under Section 308 read with Section 34 of the Indian Penal Code, vide Section 235 (2) of the Code of Criminal Procedure and sentenced to suffer rigorous imprisonment for two years in the case of appellant No.1 and three years and six months in the case of appellant No.2 and to pay fine of Rs.10,000/- (Rupees Ten Thousands only) each; in default, to suffer imprisonment for six months each.