DHONDU S/O. PATRU WAGHMARE Vs. THE STATE OF MAHARASHTRA
LAWS(BOM)-2017-8-102
HIGH COURT OF BOMBAY (AT: NAGPUR)
Decided on August 16,2017

Dhondu S/O. Patru Waghmare Appellant
VERSUS
THE STATE OF MAHARASHTRA Respondents

JUDGEMENT

ROHIT B. DEO, J. - (1.) By the instant appeal, appellant assails the judgment and order dated 31.8.2000 in Session Trial 104 of 1995 delivered by the Additional Sessions Judge, Chandrapur, by and under which the appellant is convicted under section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default of fine, the appellant is to undergo further rigorous imprisonment for one month.
(2.) The case of the prosecution as is unfolded during the trial is that appellant - accused (hereinafter referred to as the accused) was running a pan shop which was dismantled and wooden planks were kept by the accused at the residents of deceased Manohar. On 1.4.1993 at about 9 to 10.30 a.m. when the accused went to the house of the deceased and demanded wooden planks, the deceased Manohar gave him some wooden planks. However, since the accused claimed that there were more planks which claim was denied, an altercation ensued between accused and the deceased Manohar. The accused abused the deceased Manohar and inflicted blow of wooden plank to Manohar on his head. Manohar fell down and became unconscious. The accused ran away from the spot. The incident was witnessed by son of Manohar, Rupchand and other residents of the locality. Manohar was taken to Chandrapur and examined by doctor who issued injury certificate. Manohar was shifted to Nagpur hospital and he expired on 3. Rupchand had lodged a oral report on the date of incident on the basis of which initially offence under Section 324 of the Indian Penal Code was registered. An investigation ensued during which spot panchanama was conducted, wooden plank with blood stains were seized from the spot, blood mixed mud was seized from the spot, statements of witnesses were recorded and the accused was arrested. The clothes of the accused were seized, his blood sample was taken, an inquest panchanama was prepared after the death of Manohar at Nagpur. Post mortem examination was conducted which mentions the cause of death as "skull fracture with infracranial hemorrhages". The completion of investigation led to chargesheet being filed in the Court of Judicial Magistrate First class, Chandrapur for offence punishable under Section 302 of the Indian Penal Code. Since the said offence is exclusively triable by the Sessions Court, the proceedings were committed to the Sessions Court. 4. The trial Court framed charge vide Exh. 5. The accused pleaded not guilty and claimed to be tried, the defence of the accused is of total denial and false implication. In the statement under section 313 of Criminal Procedure Code, the accused admits that he did go to the house of the deceased to collect the wooden planks, however, he denies the assault by wooden plank. His defence is that when he was taking his wooden planks, deceased obstructed him, the deceased fell down and sustained injury. 5. I have heard learned counsel Shri. S.O. Ahmed for the appellant accused and the learned APP Shri. H.R. Dhumale for the prosecution. Shri. Ahmed submits that evidence led by the prosecution is not confidence inspiring and is vitiated by inconsistencies and inter se contradictions. According to the learned counsel, both the alleged eye witnesses namely, PW 1 - Rupchand Manohar Sakharkar and PW 2 - Suresh Govindrao Chandankhede, are interested witnesses. He would urge that PW1 is the son of the deceased and PW2 Suresh Chandankhede is a neighbour and friend of the deceased. Shri. Ahmad would urge that the evidence of interested witnesses must receive corroboration in every material aspect, which corroboration according to Shri. Ahmed is lacking in the factual scenario of the case at hand. The learned APP would submit that difference between a related witness and an interested witness is well recognized in law. He would submit that PW 1 and PW 2 are natural witnesses and the fact that PW 1 is the son of the deceased and PW 2 is a friend or neighbour of the deceased is not sufficient to brand them as interested witnesses. Learned APP, Shri. Dhumale, invites my attention to a judgment of the Hon'ble Apex Court State of Rajasthan Vs. Smt. Kalki and Another, (1981) 2 SCC 752. The relevant observations of the Hon'ble Supreme Court read thus: "7. As mentioned above the High Court has declined to rely on the evidence of PW1 on two grounds : (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be 'interested'. In the instant case PW1 had no interest in protecting the real culprit, and falsely implicating the respondents." 6. The learned APP would further urge that the testimonies of PW 1 and PW 2 are consistent, reliable and confidence inspiring. The learned APP would submit even otherwise that the ocular evidence is sufficiently corroborated by the medical evidence. My attention is invited to the Injury Certificate dated 1.4.1993 (Exh. 23) and the testimony of PW 6 Dr. Sunil Sanghai who examined Manohar when he was admitted in General Hospital, Chandrapur. PW 6 describes the injuries as: "1. Lacerated wound on left temporo parietal region of size 11 x 1 c.m. it was bone deep and bone was exposed. It was straight." "2. Lacerated wound on left fronto temporal region of size 1.5 x 0.5 c.m. and it was curved. General condition of the patient was not satisfactory bleeding from nose was present and patient was not responding to oral command. There was incoherent slurring of speech. Patient was not moving limbs. X-ray skull was advised. As per my opinion the injuries mentioned in the injury certificate that the said injury could be caused by hard and blunt object. Age of the injury was fresh and within 6 hours. Healing time of the injury could not be commented and want of further interial damaged assessment. Patient was admitted to General Hospital, Chandrapur." "3. On examination I issued injury certificate. Injury certificate now shown to me is the same. It bears my signature. It is at exh. 23. Its contents are correct. The injury found on the person of the patient could be caused by wooden plank. If adequate force is used. The aid injury were of serious nature." PW 6 deposes that injury found on the patient could be caused by the wooden plank, however, adequate force is to be used. 7. The learned Session Judge, has recorded a finding that the evidence of PW 1 and PW 2 is reliable and that there is nothing brought on record in the cross examination to shake the credibility of the aforesaid two eye witnesses. The learned Sessions Judge has further, held that the accused did not have the intention to cause death while inflicting the blow by the wooden plank. The said finding is unexceptionable. A single blow by a wooden plank was inflicted. It is not the case of the prosecution that there was any motive or past enmity which would have persuaded the accused to assault the deceased with the intention to cause death. Such intention cannot be attributed to the accused. Admittedly, there was no premeditated assault. The deceased was of advance age and the death occurred 8 days after the alleged incident. The learned Session Judge is right in recording a finding that the accused deserves to be convicted under section 324 of the Indian Penal Code. 8. I find no infirmity whatsoever in the conviction recorded by the learned Sessions Judge under section 324 of the Indian Penal Code. 9. I, therefore, uphold the conviction of the accused under section 324 of the Indian Penal Code. 10. At this stage, the learned counsel for the accused Shri. Ahmed would urge that there is no previous conviction and having regard to the fact that the accused is now aged 57 years with a family and settled in life, instead of sentencing him at once to any punishment, he be released on probation of good conduct. 11. Shri. Ahmed would urge that the incident took place about 24 years ago when the accused was aged 33 years. The incident was not the out come of premeditation. The inflicting of the blow was on the spur of the moment. The plank which the accused was carrying was used to inflict the blow and it is not as if the accused went out of the way to use a deadly weapon or to arm himself with a weapon of assault. Accepting the aforesaid submission of the learned counsel, I am inclined to direct that the accused be released on probation of good conduct instead of sentencing him at once to any punishment. Considering the age of the accused, and accepting the statement of the learned counsel that the accused has not suffered any conviction coupled with the fact that a single blow by wooden plank was inflicted without any premeditation and on the spur of moment, I do not think that there is no possibility of reform and rehabilitation. 12. Subject to an affidavit filed by the accused that he has not been convicted in any other offence, it is directed that the accused be released on probation of good conduct or entering into a bond with surety for the sum of Rs. 5,000/-, to appear and receive sentence when called upon during the period of six months and in the meanwhile to keep the peace and be of good behaviour. The conviction is maintained. The sentence imposed by the learned Sessions Judge in Session Trial 104 of 1995, is set aside and is substituted by the directions issued in exercise of powers under section 360 of the Code of Criminal Procedure. Appeal accordingly stands disposed of. ;


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