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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
V.M. DESHPANDE, J.
Deepak - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 133 of 2006
Decided On : 26-04-2019
Indian Penal Code, 1860 – Sections 34, 307, 326, 324 – Order of conviction – By the present appeal, the appellant is challenging the judgment and order of conviction passed by learned 4th Ad hoc Additional Sessions Judge, Amravati in Sessions Trial – By the said judgment, the appellant was found to be guilty for committing an offence punishable under Section 326 of the Indian Penal Code – Court below awarded punishment of rigorous imprisonment for two years and payment of fine of Rs.1,000/- in default, sufferance of rigorous imprisonment for three months. – Held, It is clear that Dr. Dixit (PW10) is not a Doctor who is having any personal knowledge in respect of the injuries of injured Narendra since he never treated him. – He prepared injury certificate on the basis of bed-head ticket. – Even the said bed-head ticket is also not brought on record by the prosecution. – Exh.-114 shows that both the injuries were sutured at Amravati. – Since the injuries were sutured at Irwin Hospital, Amravati, the Doctor who first attended the injured Narendra at Amravati and sutured the wounds, would have been competent to depose about depth of the injury. – In absence of bed-head ticket, even that opportunity is also denied to the Court to notice the depth of the injury. – In this backdrop, it would be appropriate to reproduce herein-below the relevant portion from the examination in chief of the injured Narendra himself. – According to the injured Narendra, he was assaulted by a weapon; knife. As per the discovery statement of appellant, Katyar was seized and, in my view, the learned trial Court has rightly disbelieved the discovery. – Further, the knife which was shown to Narendra as a weapon of assault on him, was not identified by Narendra. – In addition to that, even the weapon seized was not sent for examination to the Doctor for obtaining his opinion as to whether the injuries appearing on the person of the injured can be caused by the said weapon. – Neither there is an evidence that for about twenty days, he suffered severe bodily pain nor was unable to follow his ordinary pursuit. – Thus, in the light of the law laid down by the Honble Apex Court in Hori Lal and anr., (supra), in my view, conviction recorded by learned trial Judge for the offence punishable under Section 326 of the IPC cannot be upheld. – However, since the evidence of injured Narendra (PW3) and independent witness Anil (PW5) has stood to the scrutiny of cross-examination that Narendra was assaulted by means of knife, there is no difficulty in recording a finding of guilt for the offence punishable under Section 324 of the IPC. – It is clear that the appellant was arrested and he was released on bail – Thus, he was in jail for more than two months. – There is no minimum punishment awarded for the offence punishable under Section 324 of the IPC. – The incident in question has occurred in the year 2001. – The appellant is neither having any criminal background nor there occurred any untoward incident involving the appellant. – Jail sentence for the appellant for the offence punishable under Section 324 of the IPC can be the jail sentence which the appellant has already undergone in jail. – Appeal Partly Allowed.
Key Points: - The appeal partly allowed; conviction under Section 326 IPC set aside and replaced with conviction under Section 324 IPC, with jail term to be the period already served (!) (!) (!) - The injuries and evidence led to the court limiting the offense to Section 324 IPC due to lack of proof of grievous hurt as required by Section 320 IPC and Hori Lal principles (!) (!) (!) (!) - The bed-head ticket and Dr. Dixit’s testimony were found lacking personal knowledge about Narendra’s injuries, affecting the classification of the injury as grievous (!) (!) (!) (!) (!) (!) - The earlier finding of Section 326 IPC cannot be upheld; the knife assault is accepted but constitutes Section 324 IPC per the court’s assessment (!) (!) (!) (!) - The incident occurred in 2001; appellant had no prior criminal background; no minimum punishment for Section 324 IPC; jail term already served may satisfy punishment (!) (!) (!) (!)
V.M. DESHPANDE, J.
1. By the present appeal, the appellant is challenging the judgment and order of conviction dated 04.02.2006 passed by learned 4th Ad hoc Additional Sessions Judge, Amravati in Sessions Trial No.226/2001. By the said judgment, the appellant was found to be guilty for committing an offence punishable under Section 326 of the Indian Penal Code (IPC). The Court below awarded punishment of rigorous imprisonment for two years and payment of fine of Rs.1,000/- in default, sufferance of rigorous imprisonment for three months.
2. The criminal law was set into motion by Gajanan Ugale (PW6) on 03.07.2001. This Gajanan Ugale did not support the prosecution case whole heartedly and was required to be declared as hostile to the prosecution. Hanumantrao Wadde (PW14), a Police Inspector of Police Station, Walgaon who scribed the oral report of Gajanan, has proved the same and it is at Exh.-124.
3. As per the oral report, on 03.07.2001 at 10.00 O'clock, injured Narendra (PW3), cousin of first informant, was proceeding towards his house after closing his shop. At that time, Dilip Munde (PW2) was accompanying him. At that time, the appellant, his brother Madan and one unknown person came on scooter and they assaulted Narendra by means of knife and ran away from the spot. First informant and others from the locality rushed. They took Narendra to Irwin Hospital, Amravati. PI Wadde (PW14) registered a crime against the appellant, his brother Madan and an unknown person vide Crime No.73/2001 for an offence punishable under Section 307 read with Section 34 of the IPC. He visited the spot of occurrence and prepared the same under spot panchanama (Exh.-88). A scooter was also seized under seizure panchanama (Exh.-126). He also recorded statement of witnesses. He got the information that appellant and other accused Madan are arrested by PSI Shaukat Ali (PW13) posted at Nagpuri Gate Police Station, Amravati for committing a cognizable offence. Therefore, he took their custody from the said police station. He also referred the appellant for medical examination. During the Police Custody Remand (PCR), appellant and Madan gave discovery statement and agreed to show the place where they have concealed the weapon. Accordingly, their statements were recorded and police party retrieved one 'Katyar' from the place shown by the appellant under seizure panchanama (Exh.-133). He recorded statement of Narendra on 12.07.2001. In the meanwhile, he was transferred and therefore, further investigation was conducted by Lalsingh Rathod (PW15), who filed the charge-sheet in the Court of law.
4. Learned 6th Ad hoc Additional Sessions Judge, Amravati, in Sessions Trial No.226/2001, framed charge against three persons including appellant, who was shown as accused no.2 in the prosecution case, for an offence punishable under Section 307 read with Section 34 of the IPC.
5. The prosecution examined in all 15 witnesses. The defence also examined a defence witness Bahinabai (DW1), mother of the appellant. After appreciation of the prosecution case, the Court below acquitted all the three persons, who were charged, of the offence punishable under Section 307 read with Section 34 of the IPC. However, the Court below convicted the appellant for an offence punishable under Section 326 of the IPC.
The State did not file any appeal challenging the acquittal of the accused persons of the offence punishable under Section 307 of the IPC.
6. Heard Mr. Shingne, learned counsel for the appellant and Mr. Joshi, learned A.P.P. for the State. It is the submission of learned counsel for the appellant that even accepting the entire prosecution case as it is, the appellant cannot be convicted for the offence punishable under Section 326 of the IPC, inasmuch as the nature of injury is not proved by the prosecution. He, therefore, submitted that at the most, the appellant can be convicted for the offence punishable under Section 324 of the IPC. He submitted that the incident in
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