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Judgment
Shrihari P. Davare, J.—Heard Shri Joydeep Chatterjee, learned Counsel for the Appellants and Shri V.G. Shelke, learned A.P.P. for the Respondent.
The present appeal is directed against the judgment and order, dated 7.5.1999, rendered by the learned Additional Sessions Judge, Aurangabad, in Sessions Case No. 276 of 1993, thereby convicting the accused Nos. 3 to 6 i.e. Appellants herein, for the offences punishable under Sections 323 r/w 34 of the Indian Penal Code, and sentencing each of them to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/ with default condition for nonpayment of fine to further undergo rigorous imprisonment for three months.
In all, seven accused faced the trial in Sessions Case No. 276 of 1993 before the Sessions Court for the offence punishable, u/s 302 r/w 34 of the Indian Penal Code and u/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. All the accused were acquitted for the offences punishable, under Sections 302 r/w 34 of the Indian Penal Code and u/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, but Appellant Nos. 1 to 4 were convicted for offences punishable u/s 323 r/w Section 34 of the Indian Penal Code, and they were sentenced as mentioned herein above.
Appellant No. 1 Ramesh Gopinath Jadhav is original accused No. 4 and Appellant No. 2 Shivaji Bhimrao Hadke is original accused No. 5; whereas Appellant No. 3 Kashinath Piraji Deobone is original accused No. 6 and Appellant No. 4 Shivaji Maruti Wakale is original accused No. 3, who were convicted as mentioned herein above. However, during the pendency of this appeal, Appellant No. 3 i.e. original accused No. 6 namely Kashinath Piraji Deobone expired on 4.7.2007 and Appellant No. 4 i.e. original accused No. 3 namely Shivaji Maruti Wakale also expired on 28.1.2001 and their death certificates have been produced on record and marked ''X'' collectively, and therefore, present appeal stood abated to the extent of deceased Appellant Nos. 3 and 4, and accordingly, present appeal proceeded in respect of Appellant No. 1 i.e. original accused No. 4 and Appellant No. 2 i.e. original accused No. 5 only.
The factual matrix of the prosecution case is as mentioned below:
The accused persons and injured persons i.e. PW3 Raju Tukaram Jadhav and PW4 Santosh Baliram Jadhav, as well as victim deceased namely son of PW2 Eknath Vitthal Ingale were the residents of village Lasur Station, Taluka Gangapur. It is the case of prosecution that on the date of incident i.e. 14.8.1993 at about 7.30 p.m. accused No. 2 Shrirang Wakale questioned PW3 Raju Jadhav regarding whereabouts of Vaijinath and on the call of Shrirang Wakale, Vajinath arrived there and accused No. 2 further told to Vaijinath that he was called by accused No. 4 Ramesh Jadhav. Thereafter PW3 Raju Jadhav, accused No. 3 Shivaji Wakale and victim Vaijinath went to the house of accused No. 4 Ramesh Jadhav at about 8.15 p.m. After some time, accused No. 3 Shivaji Wakale and Dnyaneshwar Barhate i.e. absconding accused, also came there, and Barhate questioned victim Vaijinath that if he had any sister and thereafter gave fist blows on his face and also on the face of PW3 Raju Jadhav and Barhate asked them to come towards the Bus Stand. Moreover, accused No. 3 Shivaji Wakale also gave slap on the face of PW3 Raju Jadhav and both were taken towards the Bus Stand where construction work of accused No. 4 Ramesh Jadhav was in progress.
It is also alleged that at the place of said construction work, Ramesh Jadhav i.e. original accused No. 4 (Appellant No. 1 herein), Shivaji Hadke i.e. original accused No. 5 (Appellant No. 2 herein) and Kashinath Deobone i.e. original accused No. 6 (deceased Appellant No. 3 herein) were present. Initially, victim Vaijinath was called inside and was questioned, while witness PW3 Raju Jadhav was asked to wait outside. After 15 minutes, PW3 Raju Jadhav was also called inside. Accused No. 4 Ramesh Jadhav questioned PW3 Raju Jadhav and victim Vaijinath as to what relation they had with Pinki. Thereupon PW3 Raju Jadhav told that he had no connection with Pinki and victim Vaijinath told that whatever had happened he should be forgiven. At that time, accused No. 4 Ramesh Jadhav, accused No. 5 Shivaji Hadke and deceased accused No. 6 Kashinath Deobone and absconding accused Dnyaneshwar Barhate and one person namely Ashok Warpe assaulted them. At this juncture, victim Vaijinath told them that Santosh Baliram Jadhav had some relation with Pinki. Hence, accused No. 4 Ramesh Jadhav told deceased accused No. 3 Shivaji Wakale to call Santosh Baliram Jadhav and thereupon he went and brought Santosh Jadhav on motor cycle. Accordingly, accused No. 4 Ramesh Jadhav questioned Santosh Jadhav as to what relation he had with Pinki. At that juncture, Kashinath Hamal, Ramesh Jadhav, Shivaji Hadke and Dnyaneshwar Barahate assaulted Vaijinnath, PW3 Raju Jadhav and Santosh with wet branch of tree. It is also alleged that thereafter accused No. 4 Ramesh Jadhav made victim Vaijinath, Santosh and PW3 Raju Jadhav to drink liquor forcibly and asked them to go away.
It is further the case of prosecution that when all these persons were returning to their houses, on the way, they met Jagannath Barse i.e. accused No. 1, who told them that he had some work with Vaijinath and asked Santosh and PW3 Raju Jadhav to go away. However, they waited for victim Vaijinath, but he did not return, and hence, they went to their respective homes. Thereafter, father of Vaijinath and father of Raju came to the house of Santosh and made inquiry about Vaijinath. After some time, Somnath and Baburao came and took Santosh to the house of Jagannath, but he was not present in the house. Therefore, they returned. On the next day, dead body of Vaijinath was found near Christian Missionary.
It is also the case of prosecution that on 15.5.1993, P.S.I. Ramchandra Deshmukh received information about the dead body lying near Christian Missionary school and people had assembled there. Hence, he came to police out post Lasur Station and went to the scene of offence and drew the inquest panchanama and scene of offence panchanama in presence of panchas and seized the vomit and insecticide bottle found on the spot under the spot panchanama. The dead body of victim Vaijinath was sent to the Ghati Hospital, Aurangabad for postmortem purpose.
It is also alleged that in the mean time, father of Vaijinath had also lodged complaint, which was forwarded to Shilegaon police station and C.R. No. 82 of 1993 was registered and investigation was initiated and accused were arrested. Postmortem examination was conducted. The papers were received. Medical certificates of the injured were obtained and after completion of investigation, charge sheet was filed against the accused in the court of Judicial Magistrate, First Class, Gangapur. However, since alleged offence punishable, u/s 302 of the Indian Penal Code and u/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was exclusively triable by the Court of Sessions, the said case was committed to the Court of Sessions, Aurangabad.
The learned Additional Sessions Judge, Aurangabad framed the charge at Exh. 13 against the accused on 29.4.1998 and accused pleaded not guilty to the charges levelled against them and claimed to be tried. The defence of the accused persons is of total denial.
To substantiate the charges levelled against the accused persons, the prosecution examined in as much as ten witnesses, as mentioned below:
PW1 Laxman Raoji Adsule, panch witness to inquest panchanama Exh. 17 and spot panchanama Exh. 18.
PW2 Eknath Vitthal Ingale, father of deceased, who lodged the first information report Exh. 21.
PW3 - Raju Tukaram Jadhav, injured person during the occurrence of the incident.
PW4 - Santosh Baliram Jadhav, injured person.
PW5 - Suresh Vishwanath Madhikar, turned hostile.
PW6 - Subhash Ambadasrao Narwade, turned hostile.
PW7 - Subhash s/o Shankarrao Sonwane, turned hostile.
PW8 - P.S.I. Ramchandra Bhaurao Deshmukh, the investigating officer.
PW9 - Dr. Anil Digambarrao Jinturkar, the doctor who performed the postmortem examination on the body of deceased.
PW10 - Dr. Jivansingh Ransingh Taji, who examined the injured PW3 and PW4.
Out of the afore said witnesses, depositions of PW3 Raju Tukaram Jadhav and PW4 Santosh Baliram Jadhav i.e. victims of the assault and the testimony of PW10 Dr. Jivansingh Ransingh Taji, who proved the injury certificates of PW3 Raju Jadhav at Exh. 47 and PW4 Santosh Jadhav at Exh. 48, respectively, are the important pieces of evidence in respect of Appellants herein, in the context of alleged charges levelled against them. I shall scrutinize the said evidence in respect of Appellant No. 1 Ramesh Gopinath Jadhav and Appellant No. 2 Shivaji Bhimrao Hadke, as mentioned below.
Coming to the testimony of PW3 Raju Jadhav, who has stated that he knows the accused as well as he knew victim Vaijinath and also he knows about the death of Vaijinath. He also stated the incident occurred on 14.8.1993 at about 7.30 p.m. when he was standing near the shop of Dalpatraj and at that time Shrirang Wakle came there and questioned him where Vaijinath was and thereupon he stated that Vaijinath was in his house. Thereafter Shrirang Wakle sent his nephew Raju Wakle and called Vaijinath, who came and questioned Shrirang as to why he was called. Dnyaneshwar Barlate questioned Vaijinath whether he had any sisters. At that time Dnyaneshwar Barhate gave fist blows on the face and chest of PW3 Raju Jadhav, as well as accused No. 4 Shivaji Wakle also gave slaps on his face and thereafter they went to Bus stand. Appellant Nos. 1 Ramesh Jadhav, 2Shivaji Hadke and deceased accused Kashinath Deobone were present when Appellant No. 4 Shivaji Wakale gave slaps on his face. Thereafter Vaijinath was called inside. After 15 minutes, PW3 Raju Jadhav was also called inside and Appellant No. 1 Ramesh Jadhav questioned him and victim Vaijinath whether they had any relation with Pinki, a girl. Thereupon, PW3 Raju Jadhav told that he had no connection with Pinki and Vaijinath stated that whatever had happened he should be forgiven. Thereafter Appellants Ramesh Jadhav and Shivaji Hadke and Kashinath, Dnyaneshwar Barhate and Ashok assaulted them. At that time, victim Vaijinath told that Santosh Jadhav had some relation with Pinki. Thereafter Ramesh Jadhav called Santosh Baliram Jadhav through Shivaji Wakale. At about 9.30 p.m., PW3 Raju Jadhav, Santosh and victim Vaijinath were assaulted by deceased accused No. 4 Shivaji Wakle and Appellant No. 1 Ramesh Jadhav and Dnyaneshwar Barhate with the help of wet branch of tree. Thereafter they made them to drink liquor and were questioned and thereafter Vaijinath and Santosh were told to go back.
During crossexamination, he admitted that when they were assaulted in the house of Ramesh Jadhav, no one assembled to question as to why they were being assaulted. However, he stated that deceased accused Shivai Wakale gave slaps when he came out of the house of Ramesh Jadhav, but he did not raise shouts. He also stated that he was angry and did not call anyone for help and went towards Bus stand from the road near the Church. He further stated that he went towards the Bus stand from the road near the Church and there were many houses at both the sides of the road, and he was caught forcibly and was taken. He further stated that they met many known persons on the way, but they did not call anyone for help. Moreover, there was traffic flow of the people till 11.30 p.m., however, nobody questioned why they were being taken. He also stated that he felt that he should run away by rescuing himself, but he was held tightly. Hence, he did not make any attempt to get himself rescued. He also stated that he did not feel that he should call for help from nearby vicinity and he also did not shout for help, although construction work was going on there.
Moreover, omissions were brought on record in respect of presence of Appellant No. 1 Ramesh Jadhav, Appellant No. 2 Shivaji Hadke and Kashinath inside when they called Vaijinath, as well as omission was brought on record in respect of Appellant No. 2 Shivaji Hadke and Ashok Warpe assaulting PW3 Raju Jadhav. Omission was also brought on record in respect of reason why Appellants assaulted PW3 Raju Jadhav, as well as omission was brought on record why he was assaulted with the wet branch of tree. However, he further stated that when he was being beaten with the we branch of tree, he was given 45 blows with the wet branch of tree.
Moreover, a contradiction was also brought on record in respect of portion marked ''A'' appearing in his police station and suggestions were given to PW3 Raju Jadhav that police had beaten him and Santosh during police enquiry, but same were denied by him.
Considering the testimony of PW3 Raju Jadhav, although there are few omissions and a contradiction and few suggestions given to him, which were already denied by him, it is apparent that the assault upon PW3 Raju Jadhav at the hands of Appellant No. 1 Ramesh Jadhav and Appellant No. 2 Shivaji Hadke has not been demolished in the crossexamination, and more particularly assault upon him by wet branch of tree by the Appellants herein, and therefore, the said testimony of PW3 Raju Jadhav is required to be construed as trustworthy and same is required to be accepted to connect the Appellants to the alleged crime.
That takes me to the deposition of PW4 Santosh Jadhav, who has stated in his deposition that he knows the accused persons and also knew deceased Vaijinath. On 14.8.1993, he was sitting in the house of Santosh Jadhav, at that time deceased Appellant No. 4 Shivaji Wakle came there at about 9.00 p.m. and informed him that Appellant No. 1 Ramesh Jadhav called him in order to ask about the cutlery shop, and accordingly, he was taken where construction of Ramesh Jadhav was going on. At that time, accused No. 1 Ramesh Jadhav and victim Vaijinath, PW3 Raju Jadhav and Kashinath were present. Appellant No. 1 Ramesh Jadhav questioned him about the girl, namely Pinki and also asked him whether he had any relation with Pinki. Thereupon, PW4 Santosh Jadhav told that he had no relation with Pinki, but Kashinath Hamal and Appellant No. 1 Ramesh Jadhav had assaulted them on back and hand with thin stick and thereupon he got swelling on his hand. He also stated that thereafter they were made to drink liquor forcibly and again thereafter he was assaulted and thereafter was asked to go away. He further stated that Raju starting vomiting.
During crossexamination, he admitted that for the first time he disclosed the details to the police when his police statement was recorded. As regards the assault, he stated that he was beaten for 2 or 3 minutes and he was given 2 or 4 blows with stick. He also stated that since accused were beating him, he could not call for help. He also volunteered that the accused were inside the room and there was no scope for calling the others. He also stated that the room in question is near the main road, which admeasures about 10 x 10 feet and there were many shops and hotels adjoining the said room, but he could not tell whether the said hotels and shops were open till late night. A specific question was put to him in the crossexamination that whether he had taken the liquor by holding the glass in his hand, but he replied that accused had forcibly given them liquor and glasses were not in their hands.
Moreover, few omissions were brought on record that Sominath came and forcibly took him to the house of Jagannath and Jagannath told him that he had some work with Vaijinath and that Ramesh Jadhav did not have any shop near the Bus stand. Moreover, few suggestions were also given to him that he is deposing falsely at the instance of father of the deceased and PW4 Santosh Jadhav has prepared a false case in collusion with Sahebrao Pakhare, but same were denied by him.
Considering the testimony of PW4 Santosh Jadhav, the assault upon him at the hands of the Appellants has not been shaken in the crossexamination, and therefore, the said testimony is required to be accepted and believed to that extent.
Coming to the testimony of PW10 Dr. Jivansingh Taji, who has produced the injury certificates of PW3 Raju Jadhav at Exh. 47 and PW4 Santosh Jadhav at Exh. 48, stated that he examined PW3 Raju Jadhav and PW4 Santosh Jadhav on 25.8.1993 at Primary Health Centre, Lasur Station, where he was working as Medical Officer. He stated that he found contusions on the bodies of PW4 Santosh Jadhav and PW3 Raju Jadhav and the said injuries were simple injuries caused by hard and blunt object, and accordingly, he issued the injury certificates at Exh. 47 and 48 respectively to them.
Considering the evidence of PW3 Raju Jadhav, PW4 Santosh Jadhav and the testimony of PW10 Dr. Jivansingh Taji and more particularly injury certificates Exhs. 47 and 48 issued by PW10 Dr. Taji, it is apparently clear that PW3 Raju Jadhav and PW4 Santosh Jadhav sustained following injuries:
PW4Santosh Baliram Jadhav
1)Contusion on left suprascapular region to right suprascapular region of 21 cm x 1 cm, two parallel marks, brown colour wound, age within 48 hours.
2)Contusion on left scapular region of 17 cm. x 1 cm size, two parallel marks, brown colour wound, age within 48 hours.
3)Contusion near wrist joint 3 x cm. brown colour, within 48 hours.
All the above injuries are simple in nature and caused by hard and blunt object.
PW3Raju Tukaram Jadhav
1)Contusion 4 cm x 1 cm on left side of nose dark brownish black, within 48 hours.
2)Contusion 2 cm x 1/2 cm. below the lower lip brown in colour, caused within 48 hours.
Both these injuries are simple in nature and caused by hard and blunt object.
Admittedly, all the afore said injuries sustained by PW3 Raju Jadhav and PW4 Santosh Jadhav were simple in nature, and therefore, the learned Trial Judge, relying upon the pieces of testimonies of the afore said witnesses and the injury certificates, rightly convicted the Appellants for the commission of the offence punishable u/s 323 r/w Section 34 of the Indian Penal Code, and the Appellants have failed to make out any case for interference therein.
Thus, PW10 Dr. Jivansingh Taji proved the injury certificates Exhs. 47 and 48. From the testimony of PW10 Dr. Taji and the said injury certificates, it is amply clear that PW3 Raju Jadhav and PW4 Santosh Jadhav sustained injuries of contusion on their respective bodies, as stated in the injury certificates and the prosecution has established the nexus between the testimonies of PW3 Raju Jadhav and PW4 Santosh Jadhav and the medical evidence i.e. the testimony of PW10 Dr. Taji and injury certificates Exhs. 47 and 48, which connect Appellant Nos. 1 and 2 to the alleged offence punishable u/s 323 r/w Section 34 of the Indian Penal Code.
Learned Counsel Shri Joydeep Chatterjee for the Appellants canvassed that the Appellants herein have been convicted under Sections 323 r/w 34 of the Indian Penal Code, and approximately, Appellant No. 1 Ramesh Jadhav has undergone sentence of about 109 days and Appellant No. 2 Shivaji Hadke has undergone the sentence of about 34 days. It is also submitted by learned Counsel for the Appellants that about 18 years have been elapsed from the date of incident i.e. from 14.8.1993 and since the Appellants are on bail, there is no point in sending the Appellants to jail after such substantial period to undergo the further substantive sentence, and therefore, prayed that Appellant Nos. 1 and 2 be sentenced to the period already undergone by each of them in jail, by allowing the appeal partly to that extent. According to the learned Counsel, the Appellants have already deposited the fine imposed upon them, and therefore, there is no question of undergoing further sentence in default of payment of fine. According to the learned Counsel, the Appellants are on bail for the substantial period and they never misused the privilege of bail, and accordingly, placed reliance in judicial pronouncement in the case of Bishan Singh and Anr. v. State, reported at 2006 ALL M.R. (Cri.) 577 (S.C.) .
While imposing punishment in a case of this nature, the court is required to take into consideration the factors which may weigh with the court for taking a lenient view in the matter. The incident is of 1984. 23 years have elapsed. Appellants had all along remained on bail. It is not stated that they had ever misused the privilege of bail. The incident does not reflect any cruelty on their part or any mental depravity. They had been in custody for more than five months. In a situation of this nature, we are of the opinion that it may not be proper for this Court to send the accused persons back to prison. However, the injured had suffered pains at the hands of the Appellants. We are, therefore, of the opinion that while their substantive sentence may be reduced to the period undergone, they should pay a fine of Rs. 15,000/ (Rupees fifteen thousand) each; failing which they should undergo simple imprisonment for a period of one year each. If the aforementioned amount is realized, a sum of Rs. 25,000/ (Rupees twenty five thousand) out of the sum, may be paid to the informant.
Learned Additional Public Prosecutor submitted to the orders of the court.
As regards the sentence and fine imposed upon them, admittedly, the Appellants have deposited the fine amount, and therefore, question remains of sentence of one year''s rigorous imprisonment imposed upon each of the accused. Admittedly, the incident is of 14.8.1993 and about 18 years have elapsed and the Appellants all along were on bail during the said period. It is not the grievance of the State that the Appellants ever misused the privilege of bail granted to them. Moreover, the incident also does not reflect any cruelty or any mental depravity on the part of the Appellants, and Appellant No. 1 Ramesh Jadhav has undergone sentence of about 109 days approximately and Appellant No. 2 Shivaji Hadke has undergone the sentence of about 34 days.
Hence, in view of the said position and in the situation of this nature, I am of the opinion that it may not be proper for this Court to send the Appellants back to the prison after the substantial period of about 18 years. However, simultaneously the victims i.e. PW3 Raju Jadhav and PW4 Santosh Jadhav had suffered the pains at the hands of the Appellants, and therefore ,I am of the opinion that while confirming the conviction against the Appellants, the substantive sentences imposed upon them be reduced to the period already undergone by them in jail, and accordingly, the present appeal deserves to be allowed partly to that extent only.
In the result, present appeal is allowed partly and the conviction inflicted upon Appellant No. 1 Ramesh Gopinath Jadhav and Appellant No. 2 Shivaji Bhimrao Hadke for the offence punishable u/s 323 r/w Section 34 of the Indian Penal Code, rendered by the learned Additional Sessions Judge, Aurangabad, in Sessions Case No. 276 of 1993, stands confirmed. However, the substantive sentence of rigorous imprisonment for one year imposed upon each of them stands reduced to the period already undergone by each of them in jail, and present appeal stands disposed of accordingly.