CRIMINAL APPEAL NO. 34/2005

3rd June 2019

Petitioner Counsel: Mr. R. M. Daga
Respondent Counsel: Mr. S. S. Doifode
Act Name: Indian Penal Code, 1860

Section :
Section 34 Indian Penal Code, 1860 Section 302 Indian Penal Code, 1860 Section 304-II Indian Penal Code, 1860 Section 324 Indian Penal Code, 1860

Cases Cited :

JUDGEMENT

1. By the present appeal, the appellants are challenging judgment and order of conviction passed by learned Additional Sessions Judge, Wardha dated 14.01.2005 in Sessions Trial No.60/1998. By the said, the appellants stood convicted for the offence punishable under Section 304-II read with Section 34 of the Indian Penal Code (IPC) and were sentenced to suffer rigorous imprisonment for five years and to pay fine amount of Rs.500/- by each of them and in default to undergo further rigorous imprisonment for six months.

2. I have heard Mr. R. M. Daga, learned counsel for the appellants and Mr. S. S. Doifode, learned A.P.P. for the State. With their able assistance, I have gone through the record and proceedings.

3. It is the submission of learned counsel for the appellants that the appellants are falsely implicated in the crime and for the act committed by Mangesh (PW5) and they are being convicted and sentenced to suffer the jail sentence. He submitted that there was a scuffle in between the deceased at one hand and the accused persons including the appellants on the other and in that scuffle Mangesh (PW5) tried to assault Bhojraj by means of stick, which he was holding. However, the said was accidentally landed on the person of the deceased father of the said Mangesh (PW5). Therefore, it is his submission that the appellants are required to be acquitted.

Alternatively, it is the submission that even if the entire prosecution case is accepted as it is, the offence cannot travel beyond the offence punishable under Section 324 of the IPC. He submitted that the appellants had already undergone jail sentence for about five months and looking to the passage of time, the said will be sufficient. He, therefore, prays an order accordingly.

4. Per contra, Mr. Doifode, learned A.P.P. straneously urged before me that the Court below has rightly appreciated the evidence on behalf of the prosecution witness, especially evidence of Manda (PW4) and Mangesh (PW5). He, therefore, submitted that the Court below has rightly convicted the appellant for the offence under Section 304-II of the IPC and prayed for dismissal of the appeal.

5. Ganpati Naik (PW8), in the year 1998 was discharging his duties as Police Station Officer at Police Station, Sindhi. On 16.03.1998, when he was at Wardha, he received message from Police Station, Selu that a scuffle took place at village Bondsula and the injured is admitted to Kasturba Hospital, Sewagram. He, therefore, went to the said hospital, made inquiry about the injured and proceeded to Bondsula. On the spot of the incident, Mangesh (PW5) was present. Investigating Officer Ganpati (PW8) called two pancha witnesses and inspected the spot. The incident occurred near the house of deceased Deorao and the accused. He found one bullock-cart was also standing on the spot. He also noticed blood stains near the bullock-cart. He found broken wooden stick on the spot and also Ubhari at the bullock-cart and the said was stained with blood. He seized Ubhari and in presence of panchas, he also noticed, at some distance, a Babool stick was lying. It was also seized. He also seized simple as well as blood stained earth from the spot. All these articles were seized by preparing seizure panchanama (Exh.-60). He also drew spot panchanama (Exh.61) in presence of panchas. The statement of witnesses were recorded. He arrested four accused persons under seizure panchanamas (Exh.-62 to 65). When the accused persons were in custody, appellant Shamrao made his discovery statement, leading to the discovery of weapon; stick. Memorandum statement (Exh.-66) and recovery panchanama (Exh.-67) were recorded. Clothes of the accused persons were also seized. All the seized articles were sent to Chemical Analyser (CA) by the investigating officer by giving requisition (Exh.-73) to the CA. CA reports (Exhs. 74 and 75) are available on record. After completion of the entire investigation, he filed charge-sheet before the Court below.

6. The learned Magistrate, in whose Court charge-sheet was presented, found that the case is exclusively triable by the Court of Sessions. He, therefore, committed the said to the Court of Sessions. Before the Sessions Court, charge was framed against the appellants and two others namely; Kisna and Bhaurao for the offence punishable under Sections 302 read with Section 34 of the IPC. In order to substantiate the charge, the prosecution has examined in all eight witnesses and also relied upon various documents. After a full dress trial, the learned Additional Sessions Judge, Wardha acquitted all the accused of the offence punishable under Section 302 read with Section 34 of the IPC. However, the learned Judge of the Court below convicted the appellant Bhojraj and Shamrao for the offence punishable under Section 304-II read with Section 34 of the IPC. Hence this appeal.

7. Criminal law was set into motion by Maroti (PW3), son of deceased Deorao by lodging oral report (Exh.-37). The report was recorded at Police Station, Sewagram. Since the incident has occurred within the jurisdiction of Police Station Sindhi, Police Station, Sewagram registered the offence vide offence No.00/98 under Section 302 read with Section 34 of the IPC and transferred the said for investigation to Police Station, Sindhi. At Police Station Sindhi, crime was registered as Crime No. 23/1998 for the offence under Section 302 read with Section 34 of the IPC. Printed FIR (Exh.-75-A) was registered at Police Station, Sindhi. Ganpati (PW8) has conducted the entire investigation.

8. Oral report (Exh.-37) dated 16.03.1998 would reveal that the first informant Maroti was informed by his sister Manda (PW4) that their father is being assaulted by all the four accused persons. Therefore, he went near the spot of the incident to notice that his father was being assaulted by accused persons by means of iron rod and Ubhari. It is stated in the FIR that acquitted accused Kisna was holding iron rod whereas appellant-Shamrao was holding Ubhari. It is also stated in the FIR that appellant Bhojraj snatched the stick from the hand of his brother, Mangesh (PW5) and started assaulting on the father.

It is a trite law that the FIR is not a substantive piece of evidence. It could be used only for the purpose of corroboration and contradiction and examination of the said documents.

9. Maroti was examined as prosecution witness no.3. His evidence would show that he did not utter a single word by which any Court can reach to the conclusion that he was an eye witness. His evidence would show that he reached to the spot after the incident was over and the deceased was lying in the pool of blood. In that view of the matter, version of the prosecution witnesses cannot be accepted as version of the eye witnesses. At the most, from his substantive evidence, it is clear that after gathering the information from his sister Manda about the assault and when he reached to the spot to notice lying of his father in pool of blood, he lodged the report. Therefore, his evidence is admissible only to the extent that he set criminal law into motion.

10. Surendra (PW1) is a pancha witness on spot panchanama, memorandum statement of appellant Shamrao, which led to the discovery of stick from his house and arrest panchanama of the accused persons and seizure of the clothes of the accused. This prosecution witness did not support the prosecution case at all and, therefore, he was declared hostile. Even after he was cross-examined thoroughly by the learned A.P.P., nothing could be brought on record, by which it could be said that his evidence is anyway helpful to the prosecution case.

11. Gunwanta Zite (PW2), an independent witness who was examined by the prosecution as one of the witnesses, also did not support the prosecution at all. Even the learned Judge of the trial Court has not considered his evidence and I see no reason to discard the finding of the learned Judge of the trial Court for not considering the evidence of this prosecution witness. Manda (PW4) and Mangesh (PW5) these two witnesses are daughter and son of the deceased Deorao. A faint argument was tried to be submitted before this Court by the learned counsel for the appellant that their evidence is required is kept to be out of consideration since they are interested witnesses looking to their relations with the deceased. Merely because they are the daughter and son that does not earn any disqualification for considering their evidence. At the most, the Court will be at guard while appreciating their evidence. I will discuss their evidence later on after considering the medical evidence.

12. Two doctors are examined in the present case. They are; Dr. Bipinchandra Tirpude (PW6) and Dr. Alok Bhati (PW7). Dr. Tirpude (PW6) has proved post mortem report (Exh.-49). It is pertinent to note here that Dr. Tirpude (PW7) did not perform post mortem of the deceased Deorao. He proved post mortem report since he was in know of the handwriting and signature of Dr. Bhati (PW7), who performed autopsy over the dead body. In that view of the matter, evidence of Dr. Bhati (PW7) would be required to be examined.

13. Dr. Bhati (PW7) conducted post mortem on 16.03.1998 itself. He noticed following external injuries on the dead body of the deceased:

“1. Lacerated wound at left angle of mouth lower lip of size 1X1 cm.
2. Contused lacerated wound 2X2 cm deep at chin in midline of anterior surface of mandible with associated fracture of mandible.
3. Abrasion in all area of 2-5 cm. at the level of nipple on anterior chest wall. 1 cm outer to right border of sternum.
4. Contusion, linear in shape 3 X 1 cm present on the tip of right shoulder.
5. Nazal septum fracture in association with efusion of blood.
6. Fracture of mandible n the centre at the lower border associated with efusion of blood.
7. Rib number two and three were found fracture 1 cm away from left border of sternum.
8. Right side rib number 3 fractured two cm right border of sternum.”
When he opened the dead body, he noticed following injuries:
“a) Diffused effusion of clotted blood under the scalp in a area of 12 X 12 cm. left side.
b) Defused effusion of clotted blood within muscular layers and under the scalp on area 5 X 4 cm. on right temporal muscles.
c) Deffused effusion of blood in left occipital part in an area of 5 X 7 cm.
d) Skull vault revealed linear crack fracture measuring 27 cm from left to right at the level of cronal suture.
e) Linear crack fractured of 7 cm. length on right side at middle of right temporal bone starting 8 cm. away from mid line of right side.
f) Two linear crack fracture found at the base of skull.
g) Linear crack fracture of 8 cm. involving squamause part of right temporal bone.”

14. Important to note while considering evidence of Dr.Bhati (PW7) that while performing the post mortem he did not notice any external injury on the head or skull. On the contrary, he admitted in his cross-examination that there was no corresponding external injury on head region in respect of the internal injury seen on that region. He also admitted that ante mortem injuries do not disappear suddenly and at last till decomposition. In the present case, the incident occurred on 16.03.1998 and post mortem was performed on the very same day. Further, there was no decomposition. In such eventuality, non observing the external injuries on the head which corresponds the internal injury, assumes importance. This will have to be examined in the light of the medical evidence of Dr. Bhati that the injuries can be caused if a person under intoxication falls on stone or any other hard and blunt object. In the present case, while performing post mortem, Dr. Bhati preserved viscera and it was sent for chemical analysis. CA report (Exh.-83) is in respect of the same, which clearly shows that alcohol was found in the viscera. Thus, at the time of incident, there is no doubt that the deceased was under intoxication.

15. According to the prosecution case, motive to assault the deceased was that appellants were nourishing a grudge in their minds that the deceased is involved in black magic. Even as per the evidence of Manda (PW4) and Mangesh (PW5), they noticed hot exchange of words and scuffle in between the deceased and the appellants. Though Manda claims that deceased was assaulted on the head, face and chest by these two appellants by means of weapons in their hands, her evidence is belied by the medical evidence inasmuch as no external injury was found on the head, which according to Dr. Bhati, would have appeared if the blow is given with force. Further, all the muddemal properties were sent to CA under CA requisition (Exh.-73) and the CA report (Exh.-74) is also on record. The weapons those were sent, were not having any blood stains nor the clothes of the appellants were having any blood stains.

16. Looking to the evidence of Manda (PW4) and Mangesh (PW5), I accept it to the extent that the deceased was assaulted by these two appellants on the face and chest. Those injuries were not found to be grievous. Therefore, I find some force in the alternate submission of the learned counsel for the appellants.

17. Once the use of Ubhari and stick by the appellants is proved then in my view, the appellants will have to be convicted for an offence punishable under Section 324 of the IPC and not under Section 304-II, as convicted by the Court below inasmuch as the appellants cannot be the author for the internal injuries suffered by the deceased.

18. The appellants were arrested on 16.03.1998 under arrest panchanama (Exh.-65). They were released by order of this Court in Criminal Application No.1237/1998 on 18.08.1998 and Roznama would show that they furnished bail bonds before the trial Court on 19.08.1998 thus for good five months, the appellants were in jail.

Looking to the fact that the appellants have committed an offence punishable under Section 324 of the IPC and the incident has occurred in the year 1998, in my view, some leniency can be shown to them. Hence, I pass the following order.
ORDER
(i) The criminal appeal is partly allowed.
(ii) Judgment and order of conviction dated 14.01.2005, passed by Additional Sessions Judge, Wardha in Sessions Trial No.60/1998, convicting the appellants for an offence punishable under Section 304-II read with Section 34 of the IPC is hereby upset and set aside. Instead, the appellants are convicted for an offence punishable under Section 324 read with Section 34 of the IPC and their sentence shall be the jail sentence, which they have already undergone.
(iii) Bail bonds of appellants stand cancelled.