Shankar Dattatray Shirke & Anr. vs The State Of Maharashtra & Anr.

. This Appeal takes exception to the judgment and order dated 27^th February 2022 passed in Sessions case No.69 of 2014 whereby the Appellants/Accused are convicted for the offences punishable under Section 326 read with Section 34 of the Indian Penal Code (‘IPC’ for short) and sentenced to suffer RI for the period of 7 years with fine of Rs.10,000/- in default RI for six months. They are also convicted for the offence under Section 504 read with Section 34 of the IPC and sentenced to suffer one year imprisonment with fine. The Trial Court directed both the sentences to run concurrently.

It is the case of the prosecution that, there were disputes between the Informant/Injured and Accused No.1 on the issue of giving dash to the car. On 1^st September 2013 at around 11.00 p.m. the Informant was assaulted by Accused No.1 with iron rod and Accused No.2 with fist and kick blows. In the said incident the Informant-Victim has sustained number of injuries. He was taken to hospital. He lodged report which was registered as Crime No.121 of 2013 for the offences punishable under Section 326, 324, 323 and 504 read with Section 34 of the IPC. As during the course of the investigation it was found that the offence punishable under Section 307 of the IPC, the same came to be added. On conclusion of investigation charge-sheet is filed. Since, the Accused abjured the charge, prosecution led evidence of in all eight witnesses which include first Informant-Injured, Panch Witnesses for spot panchnama as well as recovery of weapon from Accused No.1, Medical Officer (PW-5 and 6) and Investigating Officer.

The learned Trial Court found that, the offence punishable under Section 307 of IPC is not proved and hence both the Accused are acquitted. There is no Appeal filed by the State against the acquittal. The Trial Court convicted the Accused for the offences punishable under Section 326 and 504 read with Section 34 of IPC.

The learned counsel for the Appellant submits that, the evidence on record led by the prosecution does not prove the essential ingredients to constitute grievous hurt and hence no offence is made out punishable under Section 326 of IPC. It is his submission that, the Medical Officers DW-5 and 6 have given diversion opinion with regard to the nature of injury which is caused on osipital parital region as to it is grevious or simple. It is further argued that, the evidence of the Medical Officers is not consistent and PW-6 in his cross-examination has admitted that C.T. scan report is not placed on record and therefore according to him, fracture cannot be said to be proved. It is thus his submission that, unless the prosecution proves that, the grievous hurt being caused as defined by Section 321 of IPC, the offence punishable under Section 326 is not made out. Without prejudice to his contention it is his submission that at the most the offence could be said to have been committed under Section 324 of the IPC. It is argued that, the said offence prescribed for sentence to the extent of three years and that Accused No.1 has already undergone the sentence. Insofar as Accused no.2 is concerned it is contended that, since he has allegedly assaulted the injured with fist and kick blows, the offence under Section 324 is not made out against him.

The learned APP and learned counsel for the Informant-Injured opposed the Appeal. However, there is no dispute made with regard to the fact that, there is no Appeal filed against the acquittal of the Accused for the offence punishable under Section 307 of IPC. It is their contention that the evidence of the Informant is consistent to indicate that on the fateful day both Accused came together to the spot and caused serious injuries to the Informant. It is argued that, the said fact is duly corroborated by the testimony of Medical Officers who have noticed the number of injuries being caused on the person injured. It is further argued that, there is recovery of iron rod under Section 27 of the Evidence Act at the instance of the Accused No.1 which was used in the assault. In response to the arguments of the counsel for the Appellant about there being no C.T. scan report on record it is submitted that, though such report is not on record, however, there are certificates and summary indicating of such C.T. scan report being is in existence. It is therefore submitted that, having regard to the nature of offence and the evidence led by the prosecution, this is not a fit case for causing interference in the impugned judgment and order.

Perusal of the evidence of PW-3 injured indicates that, there are disputes between the parties i.e. between the injured and Accused no.1. Needless to say that, the previous enmity becomes cause for commission of crime as well as it may become reason for false implication. The Court will have to see as to whether the evidence of the Informant with regard to the assault caused by the Accused persons is consistent with the other evidence on record and reliable to convict the Accused persons. Perusal of the substantial evidence before the Trial Court indicates that he narrates the manner in which both Accused came together to the spot and the Accused No.1 holding iron rod in his hand. He claimed that both threatened to kill him and also caused assault on him. His evidence is not shattered to that extent in the cross-examination conducted by the defence. There is further evidence on record indicating the causing of injuries to the injured. Testimony of PW-5 Dr.Sadmal Parmar and PW-6 Sanjay Deodhar indicate that there were injuries caused and one of the injury on his Occipito-parietal Region. Apart from this there is evidence of the panch witness PW-8 indicating the recovery of the iron rod at the instance of the Accused. The evidence of injured witness is believable and sufficient to hold that this is not a case of false implication.

The afore-stated evidence conclusively proved the fact that, on the fateful day the Accused Nos.1 and 2 came together to the spot with an intention to cause assault on the injured and accordingly Accused No.1 assaulted him with iron rod and Accused No.2 used fist and kick blows. The factum of causing of the injuries to the injured though is proved, now it is to be seen as to whether the offences made out punishable under Section 326 of the IPC.

In this regard it would be pertinent to take note of the grievous hurt as defined in Section 320 which reads thus :-

In order to bring the case of the prosecution within the mischief of Section 326, the prosecution is required to prove that the grievous hurt as contemplated in Section 320 is caused by the Accused to the injured. Here in this case, the evidence of the Medical Officers is inconsistent for the reason that PW-5 terms the injury caused to the Occipito-parietal Region be the grievous injury whereas PW-6 who has treated the injured claims it to be a simple one.

Insofar as the facture injuries caused, it is pertinent to note that, PW-5 doctor finds seven injuries whereas PW-6 Medical Officer states about injuries caused to injured. Apart from this during the cross-examination PW-6 admits that, there is no evidence on record in the form of C.T. scan report which would have conclusively established the causing of fracture injuries. Thus the testimony of both Medical Officer is not consistent on material aspect to wholly rely upon the same without further corroboration. Having regard to the nature of evidence, it cannot be said that the prosecution has proved beyond reasonable doubt that in the incident in question the facture injury were caused to the injured. Consequently the conviction under Section 326 of the IPC was can not be sustained. The maxim of falsus uno and falsus in omnibus has no Application in India and injured witnesses need not be discarded. There evidence can be considered in order to hold that, the injuries were caused to the injured in the assaulting question.

There is however evidence on record to indicate that both the Accused came together at the spot and assaulted the injured and so also threatened to kill him. This demonstrate there common intention. Therefore even if the Accused No.2 used fist and kick blows for causing assault on the injured, he needs to be convicted for the offences punishable under Section 324 of IPC. Hence both Accused persons are convicted for the offence punishable under Section 324 of IPC, insofar as conviction under Section 504 is concerned this Court finds no reason to caused interference therein. Admittedly, Accused No.1 is behind bar for the period more than three years, in any case, therefore, he deserves to be set free forthwith if not required in any other crime.

Though both Accused are convicted by accepting their common intention to cause assault. The law on the point of sentence is settled to say that owning to the acts committed by the Accused the sentence may vary. Reference can be made to judgment of Supreme Court in case of Dilip Singh & Others V/s. State of Punjab^{11.1953 AIR 364 and (1954) 1 SCR 145} In such circumstances, this Court finds it appropriate to sentence the Accused No.1 for the period of three years with fine as imposed by the Trial Court. Accused No.2 however to undergo the sentence of period of two years and four months i.e. the period already undergone.

Rest of the order remains unchanged

All pending Applications are disposed of.