Criminal Appeal No. 6 of 2013

9th July, 2013

Petitioner Counsel: Mrs. SONALI SAWARE
Respondent Counsel: Shri S.S. DOIFODE

JUDGMENT

JUDGMENT :- The appellant has been convicted by the learned Additional Sessions Judge, Darwha, District Yavatmal for the offence punishable under Section 307 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.25,000/-, in default to undergo rigorous imprisonment for three months. It was further directed that compensation of Rs.20,000/- be paid to injured Shaktidev Laxman Zende, if the fine amount of Rs.25,000/- is paid by the appellant. The judgment and order is dated 12th July, 2012. The appellant feels aggrieved by the said judgment and order and hence this appeal.

2. The incident had occurred on 29th November, 2002 at about 12-00 noon at village Chani. The injured Shaktidev Laxman Zende was going to his agricultural field. It is the case of prosecution that when he reached near the field of one Bharaskar, the appellant Maroti Bharaskar was found grazing his cattle. There was one installation of Electricity Department near the field of Bharaskar. The appellant had quarreled with injured Shaktidev Zende and during the said quarrel, the appellant had allegedly inflicted a blow on injured Shaktidev Zende by means of an axe. The blow had caused injury on left side of head of Shaktidev Zende. One Vasant Tamkhe came to the rescue of Shaktidev Zende and he was removed to hospital in the bullock-cart of Kashiram Rathod. Thereafter injured Shaktidev Zende was taken to Yavatmal Hospital in an auto-rickshaw. It appears that the injury was of serious nature and therefore, Shaktidev Zende was referred to Government Hospital, Yavatmal.

3. The matter was reported to police by his son Nilesh Zende. Nilesh Zende is not eyewitness to the incident. The complainant Nilesh came to know about the incident from his brother Vivek. He, therefore, immediately rushed to the spot and took his father to the hospital. On the report lodged by Nilesh, a First Information Report bearing No.98/2002 was registered at Lalkhed Police Station of Yavatmal district for the offence punishable under Section 324 of the Indian Penal Code against the appellant. After registration of offence, spot panchanama was drawn and statements of witnesses were recorded. The Medical Certificate was obtained and charge-sheet was filed in the Court of learned Magistrate. The case was heard by the learned Additional Sessions Judge.

4. During the course of recording of evidence, seven witnesses were examined by the prosecution. P.W.1-Raju Rathod is the panch witness, P.W.2-Nilesh Zende is son of the injured P.W.4-Shaktidev Zende and the complainant in the present case, P.W.3-Vasant Tamkhe is the eyewitness, P.W.4-Shaktidev Zende is the injured himself, P.W.5-Ramesh Thakre is the Police Officer who had recorded the First Information Report of P.W.2-Nilesh Zende, P.W.6-Sham Ghugane is the panch witness and P.W.7-Ajay Keoliya is the Medical Officer.

5. As already stated, P.W.2 is not the eyewitness. P.W.1 has turned hostile. P.W.5 is a formal witness who had recorded the First Information Report of P.W.2. P.W.6 is also not of much importance. The whole case is based on the testimony of P.W.3, P.W.4 and P.W.7.

6. Before I go through the evidence of P.W.3 and P.W.4, let me examine the evidence of P.W.7, the Medical Officer. P.W.7 is not the Medical Officer who had examined the injured P.W.4. He had formed his opinion on the basis of papers placed before him. He has categorically stated in his evidence that after having gone through the C.T. Scan, he had opined that there was extra dural haemotoma with fracture of skull. He had opined that injury caused to the skull was sufficient to cause death in ordinary course of the nature. It is not necessary to go into the details of evidence of this witness in the examination-in-chief as well as in the cross-examination as the said evidence does not help either the prosecution or the defence in any manner. There is no reasonable explanation as to why the Medical Officer, who had examined P.W.4, has not been examined. What is pertinent to note here is that the papers were sent to P.W.7 only for his opinion. This evidence could have assisted the prosecution only when the doctor, who had examined P.W.4, had been examined as a witness and there would have been some evidence as to who had referred the injured to radiological examination and who had collected the radiological report from the concerned department. All these links are missing and therefore, no reliance can be placed on the evidence of P.W.7. There is no mention of O.P.D. number or patient number of P.W.4 in the evidence of P.W.7. As such his evidence is of zero value as did not prove that the papers read by him to form his opinion pertained to the injuries referred by the P.W.4.

7. Let me, therefore, examine the evidence of P.W.4 and P.W.5. P.W.4 has stated that there was a quarrel between him and the appellant. The cause of quarrel has not been stated. A suggestion was put to P.W.4 that he was drunk and he had hit his head on the electrical installation (panel) known as 'D.P.'. The suggestion has been denied by him. P.W.3 is the eyewitness. He had seen the appellant inflicting an axe blow on head of P.W.4. This witness has honestly stated that there was a quarrel between the appellant and P.W.4 and that during the said quarrel an axe blow was inflicted on P.W.4 by the appellant.

8. To establish a charge under Section 307 of the Indian Penal Code, it is necessary for the prosecution to establish the requisite intention. The prosecution was under obligation to establish that the appellant either intended to cause death of P.W.4 or he intended to cause injury to P.W.4, which was sufficient to cause death in ordinary course of the nature. Since the axe blow was inflicted during the course of quarrel, the cause of quarrel has not been stated. It is difficult to gather from the circumstances as to why the axe blow was inflicted by the appellant on head of the P.W.4. The intention of the appellant is to be gathered from the circumstances in which the quarrel had taken place. It is not the case of the prosecution that the appellant had come to the spot with predetermination and he was holding an axe only with a view to assault P.W.4. The appellant was on the spot in due course of his daily undertaking. Similarly P.W.4 was also there on the spot in the ordinary course of his agricultural work. As such there is no evidence at all of any nature to indicate that the appellant had come there with predetermination and he had held the axe only with a view to assault P.W.4. As already stated, the reason for the quarrel has not been stated. How long the quarrel went on has also not been stated. The nature of the quarrel has also not been described. Therefore, it is difficult to say that the appellant had intention to cause death of P.W.4. It is equally difficult to say that the appellant had intention to cause injury of the nature sustained by P.W.4. It, therefore, can safely be concluded that a hurt by means of axe was caused by the appellant to P.W.4. The act on the part of the appellant was voluntary act and therefore, the appellant had committed offence of voluntarily causing hurt by means of a weapon which can be used as a weapon for cutting. This is punishable under Section 324 of the Indian Penal Code.

9. Before I part with the judgment, it may be noted here that though P.W.7 has stated that the injury noted in the C.T. Scan was sufficient to cause death in ordinary course of the nature, the said evidence has been discarded as there is no material to indicate that the said C.T. Scan pertained to the C.T. Scanning of head of P.W.4 and similarly other details are also missing from the evidence of P.W.7.

10. As such the learned trial Court could not have convicted the appellant for the offence punishable under Section 307 of the Indian Penal Code. The appellant could have been convicted for voluntarily caused hurt to P.W.4 by means of an axe. The said offence is punishable under Section 324 of the Indian Penal Code. The appellant, therefore, is found guilty of the offence punishable under Section 324 of the Indian Penal Code. He is found not guilty of the offence punishable under Section 307 of the Indian Penal Code. As far as sentence is concerned, the appellant has remained in custody from 12th July, 2012 till today. He must have been taken into custody immediately after the arrest and till the date he was released on bail. As already stated, he was again into custody on the date of delivery of the judgment i.e. 12th July, 2012. It can, therefore, safely be said that the appellant has remained in custody for more than one year. Since the appellant has been convicted for the offence punishable under Section 324 of the Indian Penal Code, since there was no premeditation and since the reason of the quarrel is also not known, in my opinion, the case is made out for the maximum leniency. I am, therefore, of the view that the sentence already undergone by the appellant is the sufficient punishment for the offence committed by him.

11. As far as payment of compensation is concerned, in view of the modification of the conviction and sentence, the same also will have to be modified. In my opinion, a fine amount of Rs.5,000/- in addition already undergone period will serve the ends of justice. The fine if paid by the appellant can be given to injured Shaktidev Zende by way of compensation. Hence, I pass the following order.

The appeal is partly allowed.

The judgment and order of the learned trial Court dated 12-7-2012 passed in Sessions Trial No.45/2006 convicting the appellant for the offence punishable under Section 307 of the Indian Penal Code is set aside. The sentence is also set aside.

The appellant is convicted of the offence punishable under Section 324 of the Indian Penal Code and is sentenced to suffer simple imprisonment for the period already undergone by him and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for fifteen days.

The amount of Rs.5,000/- shall be paid to the injured P.W.4-Shaktidev Laxman Zende by way of compensation, if the fine amount of Rs.5,000/- is paid by the appellant.

The fee of learned Counsel Mrs. Sonali Saware appointed for the appellant is quantified at Rs.6,000/-.

Ordered accordingly.