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Judgment
The appellants are aggrieved by the judgment and
order dated 09.09.2002 rendered by the Additional Sessions
Judge, Amravati in Sessions Case 93/1994, by and under which,
the appellants-accused are convicted for offence punishable under
Section 326 read with Section 34 of the Indian Penal Code ('' IPC ''
for short) and are sentenced to suffer rigorous imprisonment for
one year and to payment of fine of Rs.1000/-.
Heard Shri D.M. Kale, the learned counsel for
appellants-accused and Shri Ashish Kadukar, the learned
Additional Public Prosecutor for the respondent-State.
The prosecution case, as is unfolded during the trial,
is thus:
P.W.1 Bhimrao @ Bhiwaji Kokare faced trial on the
charge of having murdered the brother of accused Nana, he was
acquitted and the appeal is pending before this court. In view of
the intense enmity, accused Nana and his sons accused Dadarao
and Sahebrao assaulted Bhimrao on 13.01.1994 at 02:30 p.m.,
near the water reservoir at village Ambada. Accused Nana dealt an
axe blow and when P.W.1 Bhimrao fell down he was assaulted by
accused Dadarao and Sahebrao with sticks. Nasir Musalman and
Dharmu Dhole who were present at the reservoir intervened due
to which intervention the accused left the scene. P.W.1 Bhimrao
was taken to the Morshi Hospital by Dharmu Dhole, Raghoba
Kokare and Pandurang Kokare. The oral report was recorded by
the police at Morshi Hospital (Exh.42) on the basis of which
offence punishable under Section 324 read with Section 34 of IPC
was registered. Investigation ensued, statements of witnesses were
recorded, spot panchnama Exh.47 was drawn, an axe and sticks
were seized on 19.01.1994, and upon completion of the
investigation charge-sheet was submitted in the court of Judicial
Magistrate First Class, Morshi under Section 307 read with
Section 34 of the IPC, who committed the proceedings to the
Sessions Court.
The learned Sessions Judge framed charge (Exh.23)
under Section 307 read with Section 34 of IPC. The accused
abjured guilt and claimed to be tried. The defence is of total
denial and false implication.
The prosecution examined as many as ten witnesses
to bring home the charge. P.W.1 Bhimrao @ Bhiwaji Kokare is the
injured, P.W.2 Raghoji Kokare is the brother of the injured, P.W.3
Dharmu Dhole is examined as an eye witness, P.W.4 Sahebrao
Mundare is the panch witness to the memorandum statement,
P.W.5 Dr. Baban Sable is the Medical Officer, Rural Hospital,
Morshi, P.W.6 Ramdas Thakre is the PSI, P.W.7 Haribhau Kokare
the panch witness to the seizure memo Exh.43 evidencing the
seizure of the clothes of the complainant, P.W.8 Mahadeo
Dhanade ASI the Investigating Officer, P.W.9 Dr. Sham Rathi, who
was then attached to the General Hospital, Amravati and P.W.10
Dr. Seema Sune, who was also attached to the General Hospital,
Amravati.
P.W.3 Dharmu Dhole did not support the prosecution,
was declared hostile and cross examined on behalf of the
prosecution. His evidence does not take the case of the
prosecution any further. The only witness to the assault is P.W.1
the injured himself. P.W.4 Sahebrao Mundare and P.W.7
Haribhau Kokare the panch witnesses to the memorandum
statement and the seizure memo respectively did not support the
prosecution. The learned A.P.P. fairly does not dispute, that the
seizure of the axe and sticks is not proved. The prosecution is
relying substantially, if not entirely, on the evidence of the injured
P.W.1 Bhimrao Kokare and the corroborative medical evidence, to
prove the offence.
Before I proceed to appreciate the testimony of the
injured witness, it would be apposite to consider the medical
evidence on record to determine the nature and extent of injury
suffered by P.W.1.
P.W.5 Dr. Baban Sable examined P.W.1 Bhimrao
Kokare on 13.01.1994. He has proved the injury certificate
Exh.49. P.W.5 noticed following injuries on the person of P.W.1
Bhimrao Kokare:
Lacerated wound on upper part of scalp of size 1" x 1/2" x bone deep, bleeding was there.
Confused swelling on dorsal side of left forearm 4" x 3" vertical reddish in colour, just below elbow joint.
Contused swelling on medial side of the right leg of size 4" x 4" irregular reddish colour.
Age of the injuries within 24 hours caused by hard and blunt object it wound heal within 10 days if no complications arises.
P.W.5 has deposed that the injured was referred to
the General Hospital, Amravati for radiological examination of left
forearm and right upper leg. In the cross-examination, P.W.5
admits that injury 1 cannot be caused by the blade side of the axe.
However, he denies the suggestion that injury 1 was simple in
nature.
P.W.9 Dr. Sham Rathi was then attached to the
General Hospital, Amravati. He states that P.W.1 was admitted in
General Hospital, Amravati in Ward 3 on 13.01.1994. P.W.1 was
shifted to Ward 15, of which Ward P.W.9 was in-charge,
on 18.01.1994 and P.W.1 was examined on 19.01.1994. P.W.9
states that he diagnosed undisplaced fracture of upper third right
tibia and undisplaced fracture to left olecranon. He states that he
applied plaster to the right leg and the left upper limb. P.W.1 was
discharged on 20.01.1994. P.W.9 has proved the x-ray plates
bearing numbers 572 and 573 (Exh.68) and (Exh.69).
P.W.10 Dr. Seema Sune, who was then attached to
the General Hospital, Amravati, has proved the bed head ticket
(Exh.71). She is not cross examined.
The medical evidence reveals that the deceased
suffered three injuries. Injury 1 is not possible due to the blade
side of the axe, is the deposition. Injuries 2 and 3, which evidently
caused the fracture, are possible due to sticks, is the medical
evidence.
The learned counsel for the accused and the learned
A.P.P. are in unison in submitting is that, other than the
corroborative medical evidence, the only evidence is that of the
injured P.W.1. The learned counsel for the accused submits that in
view of the intense enmity, the possibility of false implication is
not excluded. The injured P.W.1 was accused of having murdered
the brother of accused Nana and though acquitted, the appeal was
pending before the High Court. P.W.1 is falsified on material
aspects since the medical evidence rules out use of the blade side
of the axe in the assault, is the submission. The evidence of P.W.1
must be subjected to extremely close scrutiny since the only other
eye witness P.W.3 Dharmu Dhole did not support the prosecution,
is the further submission. Per contra, the learned A.P.P. would
submit that the testimony of the injured must be placed on a
higher pedestal than that of other witnesses. Enmity is a double
edged sword and may as well furnish a motive for the assault,
points out the learned A.P.P. The omission of P.W.1 to specifically
state that he was assaulted by the blunt side of the axe is not
suggestive of falsehood, is the submission.
The pivotal issue, is whether the testimony of the
injured P.W.1 is reliable, credit worthy and confidence inspiring.
His deposition is broadly consistent with the contents of the First
Information Report, which is lodged with promptitude. P.W.1
states that at 02:30 p.m. on 13.01.1994 he went to the house of
Nasir Musalman to hire his bullock-cart. P.W.1 then came near the
water reservoir. He was assaulted by accused Nana with axe, he
fell down and thereafter was assaulted by accused Dadarao and
accused Sahebrao with sticks. The statement in the
examination-in-chief that accused 1 was instigating accused 2 and
3 to kill P.W.1, is brought on record as an omission. The evidence
is not shaken in the cross-examination. Nothing is elicited in the
cross-examination to dent the credibility of the testimony. The
conscious of this court is satisfied that the evidence of the injured
P.W.1, which is more than amply corroborated by the medical
evidence on record, is reliable and confidence inspiring and can be
the basis of conviction.
All the accused are convicted under Section 326 with
the aid of Section 34 of the Indian Penal Code. The prelude to the
actual assault is blurred. The evidence of P.W.1 is when he was
standing near the water reservoir he was assaulted by the accused.
The statement in the examination-in-chief that P.W.1 instigated
P.W.2 and P.W.3 is an omission. It is difficult to record a finding,
with any degree of certainty, that the prosecution has established
that the accused shared a common intention to cause grievous
hurt. The individual act and role of the accused needs to be examined to determine the offence committed by the accused.
Concededly, the fracture suffered to the left forearm and the right
leg are due to the stick assault which is attributed to accused 2
and 3. The injury to the head, which appears to be due to the
blunt side of the axe, is not proved to be grievous hurt within the
meaning of Section 320 of the Indian Penal Code. In the teeth of
the evidence on record, the conviction of accused Nana under
Section 326 of IPC is unsustainable, instead accused deserves to
be convicted under Section 324 of IPC. In so far as accused
Dadarao and Sahebrao are concerned, whether a weapon is likely
to cause death, would essentially depend not only on the weapon
but the part of the body on which the blow is inflicted. In the
present case, I am not persuaded to hold that lathi is such a
weapon as would attract Section 326 of IPC. Accused Dadarao and
Sahebrao are liable to be convicted under Section 325 of IPC.
In so far as the sentence is concerned, the incident
occurred 24 years ago. The motive was deep and intense hatred
for the injured P.W.1 who was accused of murdering the brother
of accused Nana. Accused Dadarao and Sahebrao, who are the
sons of accused Nana in every probability, could not restrain
themselves when their eyes fell on P.W.1 who had come to the
water reservoir along with Nasir Musalman. In view of the facts of
the case, I am inclined to grant the benefit of Section 4 of the
Probation of Offenders Act, 1958. Sentencing the accused to
prison may result in the accused degenerating into hardened
criminal. In the totality of the circumstances, the accused be
released on their entering into a bond, to the satisfaction of the
Sessions Judge, to appear and receive sentence when called upon
during period of one year and in the meanwhile to keep the peace
and be of good behaviour.
The bail bonds of the accused shall stand discharged.
The appeal is partly allowed.