Criminal Appeal No.586 of 2014

25th June, 2015.

Petitioner Counsel: Smt. RANJANA D. REDDY
Respondent Counsel: Mrs. B.B. GUNJAL

Cases Cited:
Babudas Vs. State of M.P., 2003 (9) SCC 86 [Para 9]
Shakuntalabai Vs. State of Maharashtra, 2012 ALL MR (Cri) 1970=2011(3) Mh.L.J. 947 [Para 9]
Sitaram Paswan Vs. State of Bihar, 2005 AIR (SC) 3534 [Para 9,20]
Punaram Vs. State of Madhya Pradesh, Dt.15/12/2009 [Para 9,20]
Mohammad Giasuddin Vs. State of A.P., 1977 Cri.L.J. 1557(1) [Para 9,20]

JUDGMENT

JUDGMENT :- Heard both sides.

2. Aggrieved by the conviction for the offence punishable under section 326 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/- in default to suffer rigorous imprisonment for one month, the present appeal is preferred by the original accused.

3. In fact, the appellant was tried for the offence punishable under section 307 of the Indian Penal Code and section 4/25 of the Indian Arms Act. He was acquitted of those offences and convicted for the offence, as detailed supra.

4. The prosecution case, in short is as under:-

That P.W. 1 Babusing S/o Joravarsingh Basriwale resident of Nanded had visited Gurudwara at Nanded for worship on 12/10/2008 in the morning at about 10.30 am. While he was returning back to his house, at the Gurudwara gate no.1, the present appellant was seen brandishing a sword under the influence of liquor. He suddenly without any talk, gave a blow of sword on the person of the complainant. Due to said blow, the little and ring finger of the right hand of the complainant was cut. The complainant became afraid and sat on the ground. One of his friend took him on motorcycle and admitted to Government Hospital at Nanded and, thereafter, he was taken to a private hospital for further treatment. Accordingly, his complaint was recorded by the Police in the private hospital, namely, Prachita Hospital, Nanded at 2:30 pm.

On the basis of the said complaint, investigation was started by P.W. 8 P. S.I. Vishwambhar Suryawanshi. He recorded supplementary statement of the complainant on the next day. Panchanama of the spot of occurrence was recorded. Statement of eye witnesses like P.W. 3 Bhagatsingh Dhillon, P.W. 2 Reshmakaur, the wife of the complainant, P.W. 4 - witness - Surendersingh etc. were recorded. The appellant was arrested on 16/10/2008.

On 18/10/2008, he made a statement leading to the recovery of the sword used in the commission of the offence. The panchanama in this regard was also prepared. Clothes of the complainant as well as the sword were sent for chemical analysis. The chemical analyzer's report was received. The injury certificate was collected from P.W. 7 Dr. Madhukar Hatte and the chargesheet was filed.

5. Before the learned Sessions Judge, in all seven witnesses were examined. Out of them, the panch witness to the discovery of the sword as well as to the spot, namely, P.W. 5 Shankar and P.W. 6 Baldevsingh did not support the prosecution case. P.W. 1 Babusingh is the complainant. P.W. 2 - Reshmakaur is his wife. P.W. 3 Bhagatsingh is his friend while P.W. 4 - Sundersingh Hujuria is the eye witness. According to the prosecution, all these witnesses were eye witnesses to the incident. P.W. 7 Dr. Madhukar Hatte is the Medical Officer while P.W. 8 - Vishwambhar is the Investigating Officer, as detailed supra.

6. The defence of the appellant was that the complainant is in illegal money lending business. He had given an amount of Rs.5,000/to the appellant. The said amount was even repaid with interest, however, on the ground that the complete amount is not paid, the complainant has forcibly attached the auto-rickshaw which was driven by the complainant. The owner was insisting the appellant to bring the said auto-rickshaw. In the circumstances, the appellant had even lodged complaint against the complainant. Due to the intervention of the Police, the auto-rickshaw was returned back to the owner. In the circumstances, when in some accident, the fingers of the complainant were cut, in collusion with his wife and friends, he has lodged a false report against the appellant.

7. The learned Sessions Judge however found the evidence as consistent one. It was however found that the injuries found on the person of the complainant could not have caused death in ordinary course of nature and, therefore, the conviction and the sentence as detailed supra, came to be recorded.

8. Smt. Ranjana Reddy, learned counsel for the appellant submits that while the prosecution did not come with any motive for assault, the present appellant came with a specific case of enmity. Ordinarily, no person would assault anybody without any reason. The cross-examination of the complainant would show that he himself is a criminal and atleast one criminal case was pending against him during the period. Not only the panch to the discovery of the article (sword) has turned hostile, even the complainant in his examination-in-chief itself stated that the sword at article no.5 is not the same sword from which he was assaulted. Thus, a false discovery was foisted by the prosecution against the appellant. Further, the prosecution witnesses have admitted that shops in the vicinity were open, none of the shopkeeper however is examined. The witnesses examined as eye witnesses are the complainant, his wife and P.W. 4 - Sundersingh. Said Sundersingh was posed as an independent witness by the prosecution. During cross-examination, however, P.W. 2 Sau. Reshmakaur, the wife of the complainant had admitted that the said witness is the maternal uncle of the complainant. The said witness also admitted the said relationship in the cross-examination. Thus, though, according to the prosecution, there were independent witnesses available at the spot, only the interested witnesses are examined. Further, there is improvement in the prosecution case. The F.I.R. filed by the complainant at Exhibit 31 would allege that the appellant gave one blow of the sword which caused the injuries. The prosecution however has improved the case by further adding that two blows of sword were given aiming the neck of the complainant. Out of those blows, the first blow was warded off by the complainant. Second blow to the neck was saved as the complainant put his right hand towards the neck. This exercise is done by the prosecution, as admittedly, initially the crime was registered for the offence punishable under section 325 of the Indian Penal Code r/w. Section 4/25 of the Indian Arms Act only, however to add the gravity, the addition is made from the mouth of the witnesses like P.W. 2 Reshmakaur etc.

She further submits that it has come during the cross-examination of these witnesses that the house of the complainant and his wife is situated near gate no.5 and from Gurudwara, one is not required to come at the gate no.1 to reach their house, as according to the prosecution case, the complainant and witnesses were returning to the their house. Thus, the spot of occurrence is itself not the spot where the complainant has received injuries. The panch witness therefore has rightly did not support the prosecution in this regard. Further, the Medical Officer - P.W. 7 Dr. Hatte was unable to give the history recorded by him though according to him, the complainant has given the same at the time of examination. In the circumstances, she submits that the appeal be allowed and the appellant be acquitted.

9. In the alternative, she submits that the applicant was arrested on 16/10/2008. He was released on bail on 23/1/2009. However, since he did not remain present for trial for some period, he was again arrested on 13/3/2013 upon execution of non-bailable warrant and since then, he is behind the bar since he could not make arrangement for securing bail afresh. In the circumstances, in the background of the case, she submits that the sentence awarded to the appellant be reduced and the appellant be sentenced to suffer imprisonment for the period already undergone by him.

She relies on the ratio of - i) Babudas V/s State of M.P. 2003 (9) SCC 86, ii) Shakuntalabai V/s State of Maharashtra 2011(3) Mh.L.J. 947 : [2012 ALL MR (Cri) 1970], iii) Sitaram Paswan V/s State of Bihar 2005 AIR (SC) 3534, iv) Judgment of High Court of Chattisgarh in Punaram V/s State of Madhya Pradesh dated 15/12/2009 and v) Mohammad Giasuddin V/s State of A.P. 1977 Cri.L.J. 1557(1).

10. On the other hand, learned A.P.P. submits that the statement of the injured complainant is not only corroborated by the injuries found on his person immediately by P.W. 7 Dr. Madhukar Hatte but even by the other witnesses. Even though the panch witnesses have turned hostile, there is no reason to disbelieve the version of the injured and eye witnesses specially when P.W. 7 Dr. Madhukar Hatte has specifically denied that the injuries are possible in any vehicular accident, as suggested to him. As regards the sentences, she submits that two of the fingers of the complainant are lost and, therefore, the sentence awarded by the learned Sessions Judge is proper. In the circumstances, she submits that the appeal be dismissed.

11. On the basis of this material, following points arise for my determination:-

i) Whether the prosecution has proved that on 12/10/2008 at about 9.00 am in the morning at Nanded, the appellant has voluntarily caused grievous injuries to the complainant ?

ii) If yes, whether the sentence awarded by the learned Additional Sessions Judge is proper ?

My finding to point no.(i) is in the affirmative, to point no. (ii) is in the negative. The appeal is therefore partly allowed as regards the sentence only for the reasons to follow.

REASONS

12. It is no doubt true that the prosecution version has suffered improvements and, therefore, the crime registered for the offence punishable under section 325 of the Indian Penal Code was ultimately converted to the offence punishable under section 307 of the Indian Penal Code and section 4/25 of the Indian Arms Act. The immediate statement of the complainant would show that the appellant has given a single blow of the sword causing injuries to his hand. The case is improved by the prosecution witnesses by adding that two blows of sword were given aiming the neck of the complainant, which has caused the prosecution to convert the offence to the offence punishable under section 307 of the Indian Penal Code.

13. That itself however would not falsify the prosecution case. P.W. 7 Dr. Hatte had specifically denied that the injuries found on the person of the complainant are possible by any vehicular accident. The injuries noted by him are as under:-

i) Incised wound 10 X 4 cm X bone deep over ulnar side of right hand. Loss of right and ring finger grievous

ii) Incised would 5 X 2 X bone deep over middle finger - grievous

14. The injury certificate at Exhibit 49 as well as the statement of the Medical Officer would show that the complaint reached the hospital on 12/10/2008 and he was discharged at 12:30 pm. against the medical advice "AMA Discharge". The certificate does not disclose the history, however, the Medical Officer has deposed that the history is recorded in the register.

15. It is no doubt true that the eye witnesses examined by the prosecution are interested witnesses i.e. the wife and the maternal uncle of the complainant. Further, there is certain gray area on the issue, as to why the complainant and his family members were required to reach at gate no.1 when their house is near gate no. 5 of the Gurudwara temple. Further, the prosecution did not come with any motive for the assault. It should however be noted that the statement of the complainant is corroborated by the injuries found on his person which according to the Medical Officer could not have been caused in any vehicular accident.

16. The appellant has specifically came with a case of motive i.e. enmity. The defence of enmity is a double edged weapon. It may be that the complainant wanted to suppress the motive, as according to the defence, it was inconvenient to him. However, in a case based on eye witnesses and more particularly, of injured eye witnesses, the motive need not be established.

17. It may further be that recovery of article no.5 - the sword may have been the invention of the Investigating Officer in the light of the fact that the panch to the discovery has turned hostile and even the complainant does not subscribe that it was the weapon of offence. It is also however possible that the appellant himself has played a trick. In that view of the matter, there is no reason to interfere in the findings of the learned Additional Sessions Judge as regards the conviction.

18. As regards the sentences, however, certain interference, in the facts of the present case, is required. Initially, crime was registered for the offence punishable under section 325 of the Indian Penal Code and section 4/25 of the Indian Arms Act. It was converted to the offence punishable under section 307 of the Indian Penal Code and section 4/25 of the Indian Arms Act. The learned Additional Sessions Judge took into consideration the very fact that in the immediately filed FIR, it is recited that only one blow of the sword was given on the hand and thus, convicted the appellant for the offence punishable under section 326 of the Indian Penal Code.

19. The complainant did not accept the theory of enmity as detailed supra. He however initially deposed that no crime at any time was registered against him. However, when specifically a suggestion was put to him that one criminal case in the Court of Judicial Magistrate First Class-3 at Nanded is pending against him for kidnapping a person, he admitted the same. Poverty of the appellant is explicit from the very fact that upon his re-arrest, he has not even applied for his release on bail since 13/3/2013.

20. The appellant was initially in custody from 16/10/2008 till 23/1/2009, as is clear from the deposition of the Investigating Officer i.e. P.W. 8 - Vishwanath and the roznama of the Sessions case. Thereafter, he was arrested in execution of the non-bailable warrant on 13/3/2013 and since then i.e. for a period of more than three years and three months, he is behind the bar. In the circumstances, considering all the above material, and considering the ratio of i) Sitaram Paswan V/s State of Bihar 2005 AIR (SC) 3534, ii) Judgment of High Court of Chattisgarh in Punaram V/s State of Madhya Pradesh dated 15/12/2009 and iii) Mohammad Giasuddin V/s State of A.P. 1977 Cri.L.J. 1557(1), interference in the judgment and order of the Sessions Court as regards the sentence is required.

21. In the result, the following order:-

The appeal is hereby partly allowed.

The appeal is dismissed as regards the conviction recorded by the learned Additional Sessions Judge-2, Nanded in Sessions Case No. 6 of 2009.

The judgment and order of the learned Additional Sessions Judge-2, Nanded dated 15/07/2014, sentencing the present appellant - Babusingh Dhumsingh Gadiwale to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/- in default to suffer rigorous imprisonment for one month, is hereby set aside.

Instead, it is hereby directed that the appellant - Babusingh Dhumsingh Gadiwale shall suffer imprisonment for the period already undergone by him and also upon payment of fine of Rs.1,000/-.

Certified copy of the judgment shows that the fine amount is already deposited, hence, the appellant - Babusingh Dhumsingh Gadiwale be forthwith released, in case, he is not required in any other offence.

Appeal is accordingly disposed of.

Ordered accordingly.