High Court
Legal Reasoning
1appln-745-2005.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPEAL NO. 745 OF 2005The State of Maharashtra Through P. S. Ambhora … Appellant-VERSUS-1.Gopala Baburao WalkeAge 40 years Occu. Agri2. Baba Baburao WalkeAge 50 Occu. Agri3. Rama Baba WalkeAge 19 years Occul Agri4.Radhabai Gopala WalkeAge 35 Occu. Household5.Parubai Baba WalkeAge 45 Occu. AgriculturalAll R/o Sayedmir LoniTq. Ashti, Dist. Beed..Respondents ...Mr. D.J. Patil, A.P.P. for appellantMs. Sayali S. Tekale, advocate for respondents. …CORAM:SANJAY A. DESHMUKH, J.DATE OF RESERVING THE JUDGMENT: 24.01.2025DATE OF PRONOUNCING JUDGMENT : 30.01.2025JUDGMENT :1.This appeal is preferred against the judgment and order 2appln-745-2005.odtdelivered by Judicial Magistrate First Class, Ashti, Tahsil Ashti, DistrictBeed, in Regular Criminal Case No.80 of 2002, dated 13.06.2005. Therespondents/ accused were acquitted. It is an appeal against acquittal.PROSECUTION’S CASE : 2.The informant Sudam Raktate (PW-1) was ploughing hisagricultural land situated at village Sayedmir Loni, Tahsil, Ashti, DistrictBeed on 27.03.2002, at about 12 noon. While ploughing, some thornybushes were likely to cause obstacles to the bullocks eyes, which wereexisted on the common boundary (bandh) between his land and theland of accused/respondents. To avoid the injuries to the bullocks ofthe informant, he put some stones on those thorny bushes in order tobend the same. At that time accused No.1 quarreled with the informant.Other accused also came there with weapons i.e. axes, sticks andstones. They all assaulted the informant and his father. At that time,after listening the hue and cry of informant his parents and wife etc.came there to rescue him. The accused also beat them by sticks, stonesand axes. The informant and his father was admitted in the hospital. Areport was lodged on the same day. Crime No.19/2002 was registeredin the Police Station, Ashti and the charge-sheet was filed. 3appln-745-2005.odt3.Charge was framed against the accused for the offencepunishable under Sections 323, 324, 504, 147, 148 read with Section149 of the Indian Penal Code, 1860 (for short IPC) and Section 135 ofthe Maharashtra Police Act, 1951. Accused denied the charge and theywere tried. 4.Prosecution examined the informant, Sudam Raktate (PW-1), hisinjured father, Natha Raktate (PW-3), Dr. Balaji Gutte (PW-2) whoexamined injured persons, panch witnesses Jalindar (PW-4) andSakharam Walke (PW-5). The prosecution also relied upon the report atExhibit-31, injury certificates of the informant and his father atExhibits-35 and 36, X-Ray plates at Exhibits-37 and 38 and the Spotand seizure of sticks Panchanama at Exhibit-44. 5.Learned Trial Court held that prosecution failed to prove thecharges against the accused. The accused were acquitted by givingthem a benefit of doubt. 6.The grounds of objections of this appeal are that the learned TrialCourt failed to appreciate the evidence in its proper perspectives andrecorded incorrect findings by giving unacceptable reasons. Theevidence of experienced witnesses who were injured, thoughcorroborated, is not properly appreciated. It is lastly prayed to allow 4appln-745-2005.odtthe appeal and sentence the accused. 7.Heard learned A.P.P. for the appellant-State and learned advocatefor the respondents. Perused the impugned judgment and the recordand proceedings. FOLLOWING POINTS EMERGED FOR CONSIDERATION :(i) Was it proved by the prosecution that accused infurtherance of their common object of an unlawfulassembly, assaulted the informant and his father andvoluntarily caused hurt to them ?(ii) Is the impugned judgment illegal, incorrect and requiresinterference?8.During the course of argument, learned A.P.P. for the appellant-State pointed out the Injury Certificates and submitted that InjuryCertificates are materially corroborating to the incident of assault onthe informant and his father. The evidence of these two witnesses is notshaken in the cross-examination. The evidence of Sudam (PW-1) andhis father Natha (PW-2) is very clear that while ploughing in the agriland, accused No.1 took quarrel with them and assaulted on the left eye 5appln-745-2005.odtof Sudam (PW-1). Accused No.2 gave blow of an axe on his head. Hesustained bleeding injuries. At that time accused Nos.4 and 5 peltedstones on them. 9.Learned A.P.P. for the appellant further submitted that theevidence of injured witnesses is materially corroborated by the MedicalOfficer/Doctor. The report is immediately lodged and three hours delaycannot be a doubtful circumstance to acquit the accused. He submittedthat prosecution case against respondent Nos.1 and 2 is proved beyondall reasonable doubts and therefore, this appeal be allowed byawarding sentence. 10.Learned Advocate Ms. Sayali Tekale argued on behalf of therespondents that the seizure of the axes and stones is not proved. Thereis no independent evidence of any eye witness to corroborate thetestimonies of injured witnesses and the prosecution’s case isreasonably doubtful. There was earlier enmity between informant andthe respondents/accused and therefore, the respondents were falselyimplicated in the crime. The reasons and findings of the Trial Court arelegal and correct and there is no scope for interference. It is lastlyprayed to dismiss this appeal. 6appln-745-2005.odt11.Informant Sudam (PW-1) deposed mostly as per the prosecutionstory that he was assaulted by respondent Nos.1 and 2 by the backsideof an axe and sticks. They also assaulted his father Natha (PW-3).Informant, Sudam (PW-1) sustained injuries on his head, forehead andnear to right eye and other parts of the body. They both were admittedin the hospital for 10 to 12 days. Natha (PW-3) deposed that he sawthat all the accused were beating his son. Accused No.2 - Baba Walkeand accused No.1 - Gopala Walke were armed with the axes. Otheraccused male members were holding sticks in their hands and theladies were holding stones. He went to rescue his son. He wasassaulted by all the accused persons. He also sustained the injuries tohis forehead, chest, head and legs. He sustained injury from thebackside of an axe. 12.Dr. Balaji Gutte (PW-2) doctor further deposed that he examinedSudam (PW-1) and found following injuries:-1. C.L.W., right Parietal area of scalp, size 3 x ½ x ¼ c.m., age of injurywithin 24 hours, caused by hard and blunt object. The nature of injuryopenion was reserved. Now I received the X-rey plates from Civil HospitalAhemadnagar. No fracture is noticed. In my opinion the nature of injurysimple.2. C.L.W., Occipital area of scalp, size 2 x ½ c.m. the age of injury within 24hours, caused by hard and blunt object.3. C.L.W., right maxilla i.e. below lower eye bid at lateral canthus of eye,size, 2 x ½ ..см4. Contusion, left scapula area of chest, size 5 x ½ cm. Injury no.2 to 4 are caused by hard and blunt object with age within 24 7appln-745-2005.odthours. The opinion about nature was reserved. Now X-rey plates is receivedfrom Civil Hospital Ahemadnagar. No fracture is noticed. In my opinion thenature of injury are simple.5. Contusion left leg lower end, size 1 ½ x ¼ c.m.6. Abrasion, right Ala of nose, size 1 x ¼ c.m.7. Contusion left buttock, size ¼ x ¼ cm.Injury no.5 to 7 are caused by hard and blunt object, with age within 24hours. The nature of above injuries are simple.”13.Dr. Balaji Gutte (PW-2) deposed that he found following seveninjuries on the person of Natha (PW-3) :-1. C.L.W. forehead central part of size 4 x ½ x ¼ c.m. The age ofinjury within 24 hours, caused by hard and blunt object, and natureof injury simple.2. C.L-W Lateral part of right eye brow, size of injury 1 ½ X ½ c.m.age of injury within 24 hours and caused by hard and blunt object,nature of injury was simple.3. C.L.W. Occipital area of scalp, size of injury 5 x ¼ c.m. age ofinjury within 24 hours with caused by hard and blunt object.Opinion was reserved. Now I have received the X-rey plates fromCivil Hospital Ahemadnagar. The X-rey doesn't show any fracture. Inmy opinion the nature of injury was simple.4. Contusion, left scapular area of chest extending to infrascapularr,size of injury 10 x 1/4th c.m. the age of injury within 24 hours.Caused by hard and blunt object. The nature of injury was simple.5. Contusion, right scapula area of chest, size 2 x 1/4 c.m., age ofinjury within 24 hours, caused by hard and blunt object. The natureof injury simple.6. Contusion, left Palm of the base of 5th finger dorsel aspect, size ¼x ¼ c.m., age of injury within 24 hours, caused by hard and bluntobject. The nature of injury simple.7. Contusion, left shim dorsel aspect( Leg), size 2 x ½ c.m. age ofinjury within 24 hours, caused by hard and flunt object, and thenature of injury was simple”14.Dr. Balaji Gutte (PW-2) lastly opined that the ages of injury is 8appln-745-2005.odtwithin 24 hours, caused by hard and blunt object, and the nature ofinjuries were simple. He proved the Injury Certificates of these twoinjured at Exhibit-35 and 36.15.The Panch witness Jalindar Sangule (PW-4) did not support theprosecution case on the point of seizure of weapons etc. Panch witnessSakharam Walke (PW-5) deposed that he was called while drawing thespot panchanama of the spot of incident and 2-3 sticks were seizedfrom that place of incident. He stated that the place of incident is nearto the vasti / Farm House of the informant. He proved spotpanchanama of place of incident at Exhibit-44. 16.The learned Trial Court held in paragraph No.9 of the impugnedjudgment that the Police Station is 14 kilometer away from the spot ofincident. It was not difficult for the informant and the injured personsto reach to the Police Station from the spot of incident for lodging ofthe report, which was lodged at 3.15 p.m. There is delay of less thanthree hours. However, causing of delay for lodging of the report itself isnot a reasonable doubt. No explanation is necessary for it. Such a delaycaused for lodging the report is not reasonably doubtful as held by theHon’ble Supreme Court in the case of Amar Singh Vs. Balwinder singhand Ors. [MANU/SC/0065/2003]. 9appln-745-2005.odt17.As far as occurrence of incident is concerned, two injuredwitnesses have stated that they were assaulted by accused Nos.1 and 2by giving blow of an axe. Though they stated that the other accusedpelted stones upon them, they have not deposed specifically which ofthose accused pelted stones on their person. The stones are not seized.Therefore, other accused are rightly held entitled for benefit ofreasonable doubt on the said ground. 18.The learned trial court considered the application given by theinjured informant to the police dated 6.4.2002 and the complaint filedby him bearing R.C.C. No. 82 of 2002 in which some contradictions arefound. The word knife is used in the complaint. However, the injuredwitnesses are rustic and the facts of the case are generally screened bythe advocate while drafting the complaint, which was filed in the court.For the mistake of advocate, the evidence of injured witnesses cannotbe disbelieved. It is well settled that contradictions must be materialcontradictions, which go to the root of the matter to disbelieve theentire case of the prosecution. As far as the admissions are concerned,the law in that respect is settled that the oral admissions are weakerevidence. As per the provisions of section 31 of the Indian Evidence Act,1872, an admission is not a conclusive proof. As per Section 58 of theIndian Evidence Act, the fact admitted need not be proved. However, 10appln-745-2005.odtthe proviso to Section 58 of the Evidence Act provides that court may inits discretion expects/requires proof of the admitted fact independently.Merely because, there are some admissions, those cannot be termed asmaterial admission contradictory to the prosecution case. Theexaggeration as to knife in R.C.C. No. 82 of 2002, is certainly not amaterial contradiction. It does not wash out the evidence of injuredwitnesses PW-1 and 3. The test of sufficiency of the evidence iscomplied with from the evidence of PW-1 to 3. 19.That there is coherency in the evidence of injured Sudam (PW-1), Natha (PW-3) and Dr. Balaji Gutte (PW-2). Their evidences are notshaken in the cross-examination. Proving of spot of incident and seizureof the weapon like axes etc. is not sine qua non when there is evidenceof injured witnesses, who have experienced the assault. Their evidenceis materially corroborated by the independent evidence of Doctor Balaji(PW-2) and injury certificates at Exhibits 35 and 36. There is nonecessity of proving of X-rays drawn by particular expert when there isdirect evidence of injured witnesses. The Doctor’s material evidencewas erroneously disbelieved by the learned Trial Court on the groundthat identification marks were not noted on the certificates, which is noground to disbelieve the evidence of the Dr. Balaji Gutte (PW-2).Thoughthe evidence of PW-4 and PW-5 is vague, the spot of incident is proved 11appln-745-2005.odtfrom the oral evidence of the informant, as he has deposed thatincident took place in the agricultural land where he was ploughing. Itis sufficient evidence. The proving of weapon i.e. sticks by pointing outto the injured witnesses is mere irregularity and oral evidence ofinjured informant (PW-1) and his father Natha (PW-3) is sufficient.Here, the Trial Court has failed to apply the test of sufficiency ofevidence. 20.Sterling quality evidence is not possible and expected in suchcases. The parrot like statement and testimonies without any defectalso some times create reasonable doubt. Accurate evidence withoutany mistake is not possible in each case. Accused is not entitled for thebenefit of suspicious circumstances but benefit of reasonable doubt. It iswell settled that accused are entitled for reasonable doubt andreasonable doubt means that doubt which unearths the prosecution’scase. There is no reason for the informant (PW-1) and his father (PW-3)to allege that the accused have assaulted and caused injuries to them. Ifthe earlier enmity was there, then it can be the motive and ground forquarrel and assault as well as false implication. It is not the case of theaccused that they were not present there and they were elsewhere andsomebody else might have assaulted them and injuries sustained to theinformant and his father were not caused by them. Burden of proof lies 12appln-745-2005.odton the prosecution to prove the charge against the accused. If the entireevidence and matter before this Court is considered together, this Courtis of the view that the evidence of informant (PW-1) and his fatherNatha (PW-3) as well as expert Dr. Balaji Gutte, is not shaken in thecross-examination to disbelieve them.21.By the evidence of these three witnesses the guilt of theaccused/respondent Nos.1 and 2 is proved beyond all reasonabledoubts. On re-appreciation of entire evidence, this court found that theprosecution had succeeded in proving its case beyond all reasonabledoubt. The onus lies upon accused Nos.1 and 2 to disprove evidence ofthose three witnesses. They have failed to do so. Prosecution hasrebutted the presumption of innocence of the respondent No.1 and 2 bycogent and acceptable evidence. The ingredients of Section 323 of IPCi.e. voluntarily causing hurt are proved beyond all reasonable doubts.The criminal liability of respondent/accused Nos.1 and 2 is proved.22.For the reasons discussed above, the argument of learnedAdvocate for respondents / accused is not acceptable. The reasons andfindings of the learned Trial Court are partly not legal and correct. Itrequires interference. Hence point Nos.(i) and (ii) are answered partlyin the affirmative in respect of respondent Nos.1 and 2. The appeal 13appln-745-2005.odtdeserves to be partly allowed against respondent Nos.1 and 2. However,the appeal is liable to be dismissed in respect of respondent Nos.3 to 5.23.Respondent Nos.1 and 2 are held liable under Section 323 of theIPC. They need to be heard on the point of quantum of sentence. 24.Heard accused/respondent Nos. 1 and 2 on the point of sentence.They submitted to take a lenient view. Learned Advocate for therespondents/accused Nos.1 and 2 submits to release them on the bondof good behaviour as per the provisions of Section 4 of the Probation ofOffenders Act, 1958 as they have no criminal antecedents.25.Learned A.P.P. appearing for the State strongly opposed thearguments of learned Advocate for the respondents and submitted thatthe victims of the crime i.e. informant and his father were admitted inthe hospital for 10-12 days who suffered a lot. He, therefore, submittedto award the sentence of one year along with fine and compensation tothe injured informant and his father.26.The respondents/accused nos. 1 and 2 have no criminalantecedents. Considering the peculiar set of facts of the case as well asfact that ages of respondent Nos.1 and 2 are 56 and 68 respectively and
Decision
14appln-745-2005.odtalso considering the fact that incident of assault had taken place in theyear 2002, it would be appropriate to exercise the discretion underSection 4 of the Probation of Offenders Act, 1958 and to releaserespondent Nos.1 and 2 on entering into bond of good behaviour forone year with sureties for probation of good conduct. The informant(PW-1) and his father (PW-3) were treated for about 10 days in thehospital. They must have incurred some amount for it. They havecertainly suffered by mental agony and pain. Therefore, they arecertainly entitled for compensation as per Section 5 of the Probation ofOffenders Act, 1958. It would be appropriate to direct respondentNos.1 and 2 to pay compensation of Rs.10,000/- each to the informant(PW-1) and Natha (PW-3) i.e. total amount of Rs.40,000/- ascompensation in addition to execution of bond of good behaviour forone year. This sentence would certainly meet the ends of justice andjustice to the victims of the crime. Hence, the following order :- O R D E RI.The appeal is partly allowed.II.The impugned judgment is partly set aside and appeal againstrespondent Nos.1 and 2 is allowed. However, the appeal againstrespondent Nos. 3 to 5 is dismissed. 15appln-745-2005.odtIII.Respondent Nos.1 and 2 are held liable for the offencepunishable under Section 323 of the IPC. They be released on conditionto execute bond of good behaviour for one year with surety ofRs.10,000/- each for one year on or before 15.02.2025 before JudicialMagistrate First Class, Ashti, District Beed. If they fail to maintain goodbehaviour, the learned Judicial Magistrate shall proceed against themas per the provisions of law and award appropriate sentence to them asprovided under Section 323 of the IPC without reference to this Court.IV.Respondent Nos.1 and 2 are also directed to pay compensationunder Section 5 of the Probation of Offenders Act, 1958, of Rs.10,000/-each to the informant Sudam Natha Raktate (PW-1) and his fatherNatha Balaji Raktate (PW-3) i.e. Rs.20,000/- to each i.e. total amountof Rs. 40,000/- as compensation, under Section 5 of the Probation ofOffenders Act, 1998 in default to suffer simple imprisonment for onemonth each. The said amount be deposited in the Court of learnedJudicial Magistrate First Class, Ashti, District Beed, within two monthsfrom today. If the said amount is not deposited within two months fromtoday, respondent Nos.1 and 2 have to pay interest @ 9% p.a. on it, tillits realization. However, if the said amount is not deposited within twomonths from today, the learned Judicial Magistrate First Class, Ashti,District Beed shall proceed against respondent Nos.1 and 2 to recover 16appln-745-2005.odtthat amount as per the provisions of law without reference to this Courtand also proceed further against respondent Nos.1 and 2 and executethe sentence in default, as directed above. V.After deposit of the amount of Rs.40,000/-, the learned JudicialMagistrate First Class, Ashti, District Beed is directed to inform to thePW-1 and PW-3 about deposit of the amount of Rs.40,000/- and if theypray, the said amount of Rs.20,000/- each be paid to the informantSudam Raktate (PW-1) and his father Natha Raktate (PW-3) along withinterest, if any, accrued on it. If they refuses to withdraw it withinthree months after intimation about deposit of the amount, thatamount be transferred to Ehsaas Matimand Mulanche Balgruh CBCMT.The bank account details of the same are as under :-Name: Siddharth Samajik Vikas Sanstha.A/c. No.: 130820110000494 - (Current Account)Bank: Bank of India.Branch: Powai Naka, Satara.IFSC: BKID0001308.VI.The respondents/accused Nos.1 and 2 are informed that theymay proceed against this judgment in the Honourable Supreme Court.If they want to proceed in the Honourable Supreme Court, they have to 17appln-745-2005.odtfurnish surety to the satisfaction of the learned Judicial Magistrate FirstClass, Ashti, District Beed on or before 15.02.2025.VII.The Judicial Magistrate First Class, Ashti, Tahsil Ashti, DistrictBeed is directed to provide a copy of this judgment to both the accusedwhile they submit bonds of good behaviour and sureties.VIII.The record and proceedings be sent back to Trial Court alongwithcopy of this judgment.IX.Rest of the impugned judgment is maintained. [SANJAY A. DESHMUKH] JUDGEA.G.Narwade