Sk. Nisar Sk. Istekhar vs The State Of Maharashtra

The present appeal is preferred in order to challenge judgment and order dated 05.11.2019 passed by the learned Additional Sessions Judge, Pusad in Sessions Trial Case No. 45 of 2009, thereby convicting the appellant/accused no. 1 for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code, 1890 (IPC) and sentencing him to suffer simple imprisonment for a period of 3 years and to pay a fine of ₹2,000/-, in default, to undergo further simple imprisonment for a period of 2 months. The accused no. 2, who is the brother of the appellant/accused no. 1, was released by extending the benefit of the provisions of the Probation of Offenders Act, 1958 (for short hereinafter referred to as “the Probation Act”).

One Pravin Bhimrao Duthade had lodged FIR No. 52 of 2009 against the accused persons with Pusad City Police Station on 14.03.2009, pursuant to which offence under Sections 324, 504, 506 read with Section 34 of the IPC was registered against the accused. Subsequently, Section 307 was added on the basis of CT scan report of the informant.

It is the case of the prosecution that there was a quarrel between the informant and the accused on 13.03.2009, i.e on Holi day. It is further stated that on 14.03.2009 at about 07:30 a.m., the informant was on his way to attend a marriage along with his friend, when the accused apprehended him and assaulted him with an iron rod, in which he suffered 2 head injuries. According to the prosecution case, the informant suffered fracture injury in his skull on account of the assault. The prosecution has examined 5 witnesses in support of its case. The witnesses include the Informant/PW-1, his brother PW-2, mother PW-5, 2 eyewitnesses PW-7 and PW-8 who turned hostile, and 3 doctors (PW-9, PW-10, and PW-12). According to the prosecution case, when the informant was being beaten by the accused, some children in the locality informed the said fact to the brother of the informant, who immediately rushed to the spot. According to the prosecution, the brother and mother of the informant have also witnessed the accused assaulting the informant.

The informant was initially referred for medical examination by the police. PW-10 Medical Officer, Sub-District Hospital, Pusad has stated that the informant was brought to the hospital by the police constable for medical examination at around 08:40 a.m. on 14.03.2009. She has stated that he had suffered injury on the left parietal region of size 1 cm × 3 - 4 cm. She states that this injury was scalped deep and that it was caused by a hard and blunt object. According to this witness, the second injury was in the nature of a contusion on the right temporal region. She has also issued opinion that the injuries were possible to be caused by an iron rod. In her cross-examination, she has stated that she had not noticed any injury on the occipital region and that she could not identify the hand writing with respect to injury no. 2 after the word 'contusion'. She has stated in her cross-examination that the injuries suffered by the informant were possible by falling on a rough surface.

PW-10 had referred the informant for further treatment to another hospital at Yavatmal for treatment of head injury. However, instead of taking the informant to the Government Hospital, his family members took him to the private hospital of Dr. Amol Malpani/PW-9, who is examined at Exhibit 123. PW-9 is an Orthopedic Surgeon practicing at Pusad. He has stated that on examination of the head injury, he found a lacerated wound on the occipital region, bone deep and actively bleeding of the size of 7 × 5 cm. He has issued a report dated 14.03.2009 accordingly, which is at Exhibit 124. PW-9/ Dr. Malpani had advised the informant to undergo a CT scan of the brain. In his cross-examination, he has admitted that he did not find any injury on the left parietal region. He also admitted that the injury was possible by falling on a rough surface. He denied the suggestion that injury was not suffered in the occipital region. The CT scan report dated 14.03.2009 is at Exhibit 125-A.

Dr. Rajesh Agrawal is examined as PW-12. He has stated that he runs a hospital named Lifeline Diagnostic Center and that he is a practicing Radiologist at Nanded. He has stated that the informant was brought to his hospital for CT scan on 14.03.2009. The CT scan report reveals that the informant had suffered a fracture injury in the right temporal bone. He has stated that following injuries were noticed in the CT scan of the informant:-

Perusal of the cross-examination of PW-1/Informant will indicate that the incident is not completely denied. The case set up by the accused in the cross-examination is that since there was a quarrel between the informant and the accused on the previous day, the informant along with his friends had been to the house of the accused on the date of the incident and they were assaulting the accused no. 1. It was further suggested that while the accused no. 1 was being beaten by fist, blows and kicks, he pushed the informant, as a consequence of which, he suffered head injury. It was suggested that the FIR was lodged taking unfair advantage of the situation. It was also suggested to the informant that although initially offence was registered only under Section 324, the police registered offence under Section 307 on account of mob pressure.

Learned Sessions Court had framed charge against the accused under Section 307 read with Section 34 of the IPC. The learned Sessions Court has found that the accused were involved in the offence; however, ingredients of Section 307 were not made out and conviction could be sustained only under Section 325. Accordingly, the impugned judgment and order came to be passed convicting the appellant for the offence under Section 325 read with Section 34 of the IPC. The appellant no. 2 was released by granting the benefit of the Probation Act.

Ms. Kirti Deshpande, learned advocate for the appellant vehemently argued that the prosecution has failed to prove its case. She contends that the learned Sessions Court has erred in convicting the appellant. According to her, apart from the informant and his family members i.e. brother and mother, no independent witness is examined to prove the case of assault. She draws attention to the evidence of prosecution witnesses PW-7 and PW-8 and points out that they have not supported the prosecution case. Learned advocate also draws attention to the spot panchanama to contend that independent witnesses could have been examined, since the alleged incident has occurred in a residential locality.

The informant has stated that at the time of the incident, he was accompanied by his friend – Vijay Londhe, who is examined as PW-7. Perusal of his evidence at Exhibit 111 will demonstrate that he has not supported the case of the prosecution. He has stated that he had been to the spot of incident after hearing from people that there was some exchange of words between the informant and the accused no. 1. PW-8, who is a lady residing in the vicinity of the place of incident, has denied that any such incident of assault had occurred as alleged by the prosecution.

The contention that the prosecution has not examined any independent witness loses its significance, in view of the case set up by the accused during the cross-examination of the informant. The fact that the informant was at the spot of incident and a quarrel had ensued is not denied at all. Rather, a positive suggestion is given to the informant in his cross-examination that he along with his friends were assaulting the accused no. 1 on 14.03.2009 when the incident occurred. It is suggested that while the accused no. 1 was being beaten up, he pushed the informant, as a consequence of which, the informant received the injuries on his head. Thus, the incident is not disputed by the appellant/accused. The fact that the informant suffered head injury is also admitted by implication. Perusal of the cross-examination will also demonstrate that the quarrel on the previous day of Holi is also not disputed. This evidence will clearly infer admission of presence of the accused no. 1 and the head injury suffered by the informant.

The event of assault is also supported by the evidence of the brother and mother of the informant. Although they are family members of the informant, their presence at the spot does not appear to be unnatural. It is an admitted fact that houses of the accused and the informant are in the same locality and upon being informed about the assault, it is natural that the brother and mother rushed to the spot of incident.

The medical evidence also supports the case of the prosecution that the informant had suffered head injury on being assaulted by an iron pipe. The doctor has clearly opined that the injuries suffered by the informant were possible with an iron pipe. The appellant/accused had put up a case that the injuries suffered by the informant were possible by falling on a rough surface. Two of the three doctors examined have admitted that such injuries can be caused by falling on a rough surface. The Radiologist has denied this suggestion. The accused have also given suggestions to the witnesses that cement road does not exist in front of the house of the accused where the incident had occurred. This suggestion is given in order to suggest that the spot of incident was a rough surface and not a plain or even surface. However, perusal of the spot panchanama will indicate that a tar road exists in front of the house of the accused where the incident had occurred. The doubt that is sought to be created on the basis of possibility of falling on a rough surface is, therefore, ruled out. It may be reiterated that there is sufficient oral evidence to infer assault by the appellant to the informant.

There is discrepancy between the number of injuries in the evidence of PW-9 and PW-10. PW-10 has stated that the informant had suffered 2 injuries on his head, whereas PW-9 has stated that only 1 injury was suffered on the right occipital region. The said discrepancy is not material in order to reverse the judgment of conviction. In this regard, it would be appropriate to refer to the CT scan report which refers to fracture in the right temporal bone and right temporal cerebral contusion.

Having perused the evidence on record and the findings recorded by the learned Sessions Judge, I see no reason to interfere with the findings recorded by the learned Sessions Judge. The appellant, therefore, has failed to make out a case for interference on merits of the matter.

However, apart from the merits, learned advocate for the appellant has also contended that having regard to the age of the appellant, the learned Sessions Court ought to have extended the benefit of the Probation Act to the appellant/accused no. 1, just as it was extended to the accused no. 2.

The learned Sessions Court has extended the benefit of Section 4 of the Probation Act to the accused no. 2. The said benefit is not extended to the accused no. 1. Perusal of the judgment does not indicate any reason for not considering the case of the accused no. 1 for extending the benefit of Section 4 of the Probation Act to him. Perusal of the judgment will also indicate that submissions as regards extending the benefit of the Probation Act were advanced before the learned Sessions Court for both the accused persons. Although the learned Sessions Court has recorded that considering the role of the accused no. 2, it would be appropriate to extend the benefit of the Probation Act to him, specific reasons for not extending the said benefit to the accused no. 1 are not recorded.

Perusal of the arrest forms of the accused nos. 1 and 2 will indicate that the accused no. 1 was 26 years old and the accused no. 2 was 20 years old on the date of their arrest, i.e. on 04/03/2009. The learned Sessions Court has convicted the appellant - accused no. 1 for the offence punishable under Section 325 of the IPC. Section 325 provides for maximum punishment of 7 years imprisonment.

Section 4 of the Probation Act indicates that where a person is found guilty of having committed an offence not punishable with death or imprisonment for life, and having regard to the circumstances of the case including the nature of the offence and character of the accused, if the Court which finds the accused guilty of the offence deems it expedient to release him on probation of good conduct, then the Court may, instead of sentencing him at once to suffer the punishment, direct that he be released on his entering into a bond with or without sureties and to appear and receive sentence when called upon. The maximum period of bond is 3 years.

Since the learned Sessions Judge has deemed it appropriate to extend the benefit of Section 4 of the Probation Act to the accused no. 2, it will also be appropriate that the case of the appellant - accused no. 1 is also considered for extending similar benefit to the present appellant - accused no. 1, who is the real brother of the accused no. 2. The benefit of Section 3 cannot be granted since the offence under Section 325 is not covered under Section 3 of the Probation Act. The appeal therefore deserves to be partly allowed by upholding the findings of conviction recorded by the learned Sessions Court against the appellant - accused no. 1 and directing the learned Sessions Court to consider the case of the appellant - accused no. 1 for releasing him under Section 4 of the Probation Act.

Hence, I pass the following order:-