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2017 Supreme(Bom) 1219
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE, S.M. GAVHANE, JJ.
The State of Maharashtra - Appellant
Versus
Bhimrao Daulatrao Kadam - Respondents
Criminal Appeal Nos.391 and 392 of 1999
Decided on : 12-06-2017
Subject
Criminal Law - Assault
Act Referred
Headnote
The evidence on record shows that civil dispute was going on since long between `P` and accused on the ground of boundary bundh, and both the groups had filed cases against each other and obtained order of temporary injunction. The trial Court has observed that the accused sought to produce the injury certificates of their medical examination, which shows that injuries were also caused to accused No. 2 `V`, accused No. 4 `S` and accused No. 5 `S`, and the nature of the injuries was contused lacerated wounds and contusions, which were the simple injuries. The trial Court has further observed that all the said injuries must have been sustained by the accused persons during the course of the common incident which took place on the same day and at the same time. Thus it is clear that the incident took place due to the dispute between the parties on the ground of common bundh and the accused had no intention to commit murder of `P`. Further it has come on record in the cross-examination of PW 10 that complainant was taking treatment in the hospital for about 2 and 1/2 months after the incident and when he was discharged from the hospital, the doctor advised him to visit the hospital once in a week for medical check-up. It has come on record that incident took place on 9th July, 1992 and `P` died on 25th October, 1992, i.e. three months after the incident. PW 2 admitted in the cross-examination that injury Nos. 2, 3 and 4 are not on vital part of body. PW 2 though stated that injury Nos. 1 and 5 were on vital part of the body, however he further admitted that those injuries were simple in nature. Thus the trial Court has rightly concluded that, taking into consideration the admission of doctor it cannot be said that the assailants (accused) by causing injury Nos. 1 to 5 to the complainant had intention to commit his murder. Therefore, the trial Court has rightly acquitted all the accused from the offence punishable under Section 307 of the IPC. It is also relevant to mention that, even accused also suffered injuries. However, the prosecution witnesses have not stated about said injuries. Therefore, reasonable inference can be drawn that prosecution tried to suppress the genesis of the incident.
Advocate Appeared:
For the Appellant : Mr. S.J. Salgare, A.P.P
For the Respondent:Mr. N.G. Kale, Advocate
S.S. Shinde, J.
1. As both these Criminal Appeals are arising out of one and the same Judgment and order passed by the trial Court, both the Appeals are being decided by this common Judgment.
2. Criminal Appeal No.391 of 1999 is directed against the Judgment and order dated 18th September, 1999, passed by the Additional Sessions Judge, Osmanabad in Sessions Case No.149 of 1994 thereby acquitting all the accused persons from the offence punishable under Section 307 of the Indian Penal Code (for short "I.P. Code"). The trial Court convicted all the accused persons for the offence punishable under Sections 147, 148, 324 read with 149 of the I.P. Code. For the offence under Section 147 of the I.P. Code, each of the accused is sentenced to fine of Rs.500/- and in default to suffer simple imprisonment for three months. For the offence under Section 148 of the I.P. Code, each of the accused is sentenced to fine of Rs.750/- and in default to suffer simple imprisonment for six months. For the offence under Section 324 read with 149 of the I.P. Code, each of the accused is sentenced to fine of Rs.2000/- and in default to suffer simple imprisonment for nine months. Criminal Appeal No.392 of 1999 is filed by the State for enhancement of sentence.
3. The prosecution case, in brief, is as under :
(A) The complainant Pundlik Patil was the owner of Gut No.729 of village Jalkot, Tq Tuljapur. Gut No.719 belonging to the accused is adjacent to the land of the complainant. There was dispute between the parties in respect of the common Bundh as well as carttrack on it. They have filed reciprocal suits for injunction and obtained order of temporary injunction against each other. A criminal litigation was also filed by them in connection with the dispute of common Bundh and carttrack.
(B) On 9th July, 1992 at about 10.30 a.m. the complainant deceased Pundlik was present in his land. The accused persons entered in his land armed with sticks, axe and spade. They threatened the complainant and assaulted him. Accused No.1 Bhimrao assaulted by means of spade, accused No.5 Shridhar assaulted by meas of sticks, accused No.3 Haridas and accused No.2 Vinayak assaulted by means of sticks. The complainant sustained injuries to his head, hands and legs. The adjoining cultivators Shivaji Birajdar, Dattu Kadam and Arun Kadam came there and they rescued the complainant. Accused No.5 Shridhar threw chilly powder in the eyes of the complainant and then all the accused persons ran away. The complainant's son Ashok learnt about the assault, so he came to the spot. The complainant also narrated the incident to his son Ashok. Ashok took the complainant to civil hospital, Solapur and he was treated there.
(C) The statement of the complainant was recorded by A.P.I. Tilekar (Exhibit-90) and Crime No.83 of 1992 under Sections 143, 147, 148, 149, 506, 324, 325 of the I.P. Code was registered and investigation was handed over to P.S.I. Jadhav. P.S.I. Jadhav went on the spot and he prepared panchnama Exhibit-59 on 9th July, 1992. He seized the bloodstained clothes of the deceased on 10th July, 1992 (Exhibit-24). He recorded statements of witnesses from time to time. He arrested the accused persons on 16th July, 1992 and obtained their police custody remand on 17th July, 1992. On 21st July, 1992 accused No.2 Vinayak discovered bloodstained axe, as well as stick from his cattle-shed and P.S.I. Jadhav seized those articles under discovery panchnamas (Exhibit-55 and Exhibit-56). P.S.I. Jadhav seized the clothes of the accused on 21st July, 1992. He got prepared the map of the scene of the offence through revenue circle inspector (Exhibit-71). He collected injury certificate of the complainant (Exhibit-34). Thereafter complainant expired on 25th October, 1992 and so his dead body was sent for nursing and Crime No.82 of 1992 was registered in Naldurg Police Station. The said crime was investigated and R.C.C. No.147 of 1993 was filed in the Court of the Judicial Magistrate, First
