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Judgment
This appeal is directed by original accused Nos.1 to 3 in
Sessions Case No.112/2000 against the order of conviction under
Section 323 read with Section 34 of the Indian Penal Code (For
short " I.P.C ."), passed by Ad hoc Additional Sessions Judge,
Sangamner, dated 15.11.2002. Respondent is the State of
Maharashtra.
Facts leading to institution of this appeal are that -
complainant Bhimabai Narayan Gode (PW-2) filed Criminal
Complaint against original accused Nos.1 to 5 for the offences
punishable under Sections 302, 323, 504 and 506 read with Section
34 of the I.P.C. Contention of the complainant, in brief, is that her
husband Narayan Raghu Gode used to live at Mauje Keli Kotul,
Taluka Akola with his wife Bhimabai (PW-2). All accused are also
residents of the same village. On 19.11.1997 at about 9.00 p.m.
when Narayan Gode was returning to his home, that time on way
accused Nos.1 to 5 intercepted him near Pemdara Percolation Tank
which is near the house of complainant and started assaulting him
by sticks. Hearing shouts of her husband, complainant Bhimabai
(PW-2) rushed on the spot. However, accused Nos.1 to 3 also
assaulted her. Thereafter accused left the spot while abusing and
threatening the complainant. During this incident complainant and
her husband sustained injuries. As no conveyance was available at
night hours, on next day on 20.11.1997 complainant went to Police
Outpost, Kotul with her husband. Narayan Gode lodged report to
Police Outpost, Kotul against the accused persons. Complainant
and her husband were referred to P.H.C. Kotul for medical
examination. Doctor examined them and issued Medico Legal
Certificates (Exhs.25 and 26). However, police did not take any
action against the accused persons. According to complainant, her
husband succumbed to above injuries on 28.11.1997. Police
Outpost, Kotul was informed by brother-in-law of complainant
namely Raghu Gode and Village Police Patil. However, police
advised them to have last rites of the deceased, and therefore, on
29.11.1997 funeral of the deceased was done. However, thereafter
police did not take any action against the accused persons.
Therefore, on 09.12.1997 complainant filed private criminal
complaint before Judicial Magistrate, First Class, Akole.
Judicial Magistrate, First Class, Akole held inquiry and
issued process against accused Nos.1 to 5 for the offences
punishable under Sections 302, 323 read with Section 34 of the
I.P.C.
Offence punishable under Section 302 of I.P.C. being
exclusively triable by the Court of Sessions, this case was
committed initially to the Sessions Court, Shrirampur and
subsequently to Sessions Court, Sangamner.
The then Additional Sessions Judge, Sangamner franed
charge (Exh.14) against accused Nos.1 to 5 for the offences
punishable under Sections 323 and 302 read with Section 34 of the
I.P.C. Contents of the charge were read over to the accused. They
pleaded not guilty and claimed trial.
Complainant examined total five witnesses. After
considering the evidence placed on record, the learned trial Court
pleased to acquit accused Nos.4 and 5. However, accused Nos.1 to
3 were convicted for the offence punishable under Section 323 read
with Section 34 of the I.P.C. and they were sentenced to suffer
rigorous imprisonment for one year and to pay fine of Rs. 1,000/-
each, in default rigorous imprisonment for two months. Therefore,
this appeal arises.
Heard Shri S.S. Wagh, Advocate holding for Shri S.T.
Shelke, Advocate for the appellants and learned A.P.P. for the State.
Learned Counsel for the appellants submits that the
testimony of Bhimabai Gode (PW-2) is not corroborated by evidence
of independent witness. The learned trial Court erroneously
convicted the accused persons.
His next limb of the argument is that delay of one day in
lodging F.I.R. is not properly explained by the complainant.
Learned A.P.P. for the State supports the judgment
passed by trial Court on the ground that delay in lodging F.I.R. is
explained by the complainant on the ground of non-availability of
transport at night hours. Contention of learned A.P.P. is that when
testimony of Bhimabai (PW-2), who is one of the injured witness, is
corroborated by medical evidence of Medical Officer, Primary Health
Centre, Kotul Dr. Sakharam Gambhire (PW-1), corroboration by
independent witness is not necessary. He points out that otherwise
also at night hours independent eye witness would not be available.
Therefore, non-examination of independent witness cannot be a
ground to acquit the appellants.
In the alternate, learned Counsel for the appellants
submits that if conviction under Section 323 of the I.P.C. is
confirmed, in that event, benefit of the provisions under Probation of
Offenders Act may kindly be extended in favour of the appellants.
Learned A.P.P. fairly conceded that no criminal history of
previous conviction is on record against the appellants.
In the case at hand, Bhimabai Gode (PW-2) is the sole
eye witness as well as she is the witness who also sustained injuries
due to assault by accused. Bhimabai (PW-2) being injured witness,
as per trite law, the testimony of injured witness cannot be discarded
unless clinching circumstances have been brought on record by the
defence.
After going through testimony of Bhimabai (PW-2) it
emerges that she consistently deposed that in her presence
accused Nos.1 to 3 assaulted her husband by sticks and when she
tried to intervene, that time accused Deoram also assaulted her by
stick. This witness has made it clear that her husband sustained
injury on his head and limbs and she herself sustained injury on the
left side of her cheek. From her testimony it emerges that on next
day morning alongwith her husband she visited Police Outpost,
Kotul and report was lodged. Police referred them to Primary Health
Centre, Kotul for medical examination. However, thereafter police
did not take any action.
It is to be noted that in her cross-examination Bhimabai
(PW-2) stood constant and only she has admitted that the spot of
the incident is the rocky area and stones were lying there. Nothing
could be elicited in her cross-examination to doubt her testimony.
Even Medical Officer Dr. Gambhire (PW-1) corroborated
the version of complainant, by deposing that on 20.11.1997
complainant Bhimabai and her husband Narayan Gode were
referred to Primary Health Centre, Kotul for medical examination
and on examination of Narayan Gode, he found (1) contused
lacerated wound on forehead above right eyebrow of size 1/4th x
1/4th x 1/4th and (2) tenderness and limited movements around
right shoulder. This witness has proved one contused lacerated
wound on left maxillary region of size ? x 1/4th x 1/4th of
complainant Bhimabai (PW-2). According to this witness, these all
injuries were sustained by Narayan Gode and Bhimabai Gode within
24 hours from the time of their examination and these injuries were
simple in nature. He has duly proved injury certificates (Exhs.25
and 26) which corroborate the oral testimony of Dr. Gambhire
(PW-1).
Thus, it is evident that the evidence of Bhimabai (PW-2)
is fully corroborated by medical evidence. Dr. Gambhire (PW-1) has
specifically denied that injuries found on the body of Bhimabai (PW-
2) and her husband are possible due to fall on stone. Therefore,
admission of Bhimabai (PW-2) that the incident occurred on rocky
surface has become redundant.
Therefore, I am fully satisfied that testimony of
Bhimabai (PW-2) which is fully corroborated by medical evidence of
Dr. Gambhire (PW-1) and injury certificates (Exhs.25 and 26) as well
as N.C. report (Exh.33) proved by A.S.I. Pandurang Dhamale (PW-
4), is sufficient to prove beyond reasonable doubt that on above-
said date, time and place accused Nos.1 to 3 in furtherance of their
common intention, voluntarily caused simple hurt to Narayan Gode
and Bhimabai Gode (PW-2). As the incident occurred at night hours
at small village like Keli Kotul, the delay of few hours for lodging
report to Police Outpost, Kotul cannot be termed as "unreasonable
inordinate delay". In the complaint itself, complainant has properly
explained the delay.
Accordingly my conclusion is that the learned trial Court
rightly convicted the appellants for the offence punishable under
Section 323 read with Section 34 of the I.P.C.
However, after going through the judgment of the
learned trial Court, it emerges that rigorous imprisonment for one
year and fine of Rs. 1,000/- each to the appellants for the offence
punishable under Section 323 read with Section 34 of the I.P.C. is
certainly harsher punishment, because for the offence under Section
323 of the I.P.C. this is the maximum punishment prescribed under
law. At the relevant time of the occurrence the appellants were in
young age and since last 16 years they are on bail and now they
would have attained middle age of their life. Therefore, I find no
reason to send them in jail for commission of such simple hurt to the
complainant and her husband. I hold that considering overall
circumstances of the case and clean history of the appellants, it is
desirable that benefit of Section 3 of the Probation of Offenders Act
can be extended in favour of the appellants. Therefore, by allowing
this appeal partly, only the sentence imposed by trial Court deserves
to be modified as under.
Hence, the following order.
ORDER
Criminal Appeal No. 701 of 2002 is partly allowed.
Conviction of the appellants (original accused Nos.1 to 3) for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code is confirmed. However, sentence imposed against them by Ad hoc Additional Sessions Judge, Sangamner is set aside and modified and the appellants are released on due admonition under Section 3 of Probation of Offenders Act, 1958.
Bail bonds and surety bonds of the appellants shall stand cancelled.