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Judgment
The State is in appeal challenging the judgment and order
dated 24-5-2004 rendered by the learned Judicial Magistrate First
Class, Umarkhed in Regular Criminal Case 140/1999, by and under
which the respondents-accused are acquitted of offence punishable
under Section 325 read with Section 34 of the Indian Penal Code
("Act" for short).
Heard Smt. S.V. Kolhe, learned Additional Public
Prosecutor for the appellant-State and Shri K.S. Narwade, learned
Counsel for the respondents-accused.
Smt. S.V. Kolhe, learned Additional Public Prosecutor
submits that the judgment and order impugned occasions serious
miscarriage of justice. The testimony of the injured witness P.W.2
Bhaurao Mane is held to be unreliable for reasons ex facie untenable.
The learned Magistrate failed to appreciate that the testimony of an
injured witness stands on a higher pedestal than that of other
witnesses. The injured witness is not likely to inculpate the innocent
and exculpate the guilty. The learned Magistrate has committed a
serious error in disbelieving the testimony of injured P.W.2 on the
ground that the Investigating Officer did not record the statements of
two persons Amate and Deoba who were referred to in the statement
(Exhibit 34) which was recorded as dying declaration of the injured
and that the witnesses examined P.W.4 Dadarao and P.W.6 Datta are
not likely to have witnessed the incident. It is the submission of the
learned Additional Public Prosecutor that the conviction ought to have
been based on the sole testimony of the injured, since there is no
reasons recorded nor any finding reached by the learned Magistrate
that the testimony of the injured P.W.2 is not credit worthy.
Per contra, Shri K.S. Narwade, learned Counsel for the
accused would submit that this Court must be slow to interfere in the
judgment and order of acquittal. A possible view is taken by the
learned Magistrate. The view is not perverse, is the submission.
The genesis of the prosecution lies in oral report lodged by
Gajanan Bhaurao Mane (P.W.1), who is the son of the injured Bhaurao
Mane (P.W.2). The gist of the report is that injured Bhaurao Mane
went to his field at 11-00 a.m. on 04-8-1999. The field of accused 1
Bapurao Tukaram Mane is adjacent to the field of the injured. Accused
Bapurao diverted the flow of water accumulating in his field by raising
the water channel. This led to an altercation and accused Bapurao
abused and then assaulted injured Bhaurao Mane with an axe. The
injured sustained injury on the left calf. The other accused Sudarshan,
nephew of accused Bapurao also assaulted the injured. On the basis of
the said report, Police Station Umarkhed registered offence punishable
under Section 325 read with Section 34 of the IPC, spot panchanama
and statements of witnesses were recorded, axe was seized from
accused Bapurao and stick was seized from accused Sudarshan and
upon completion of investigation, charge-sheet was filed in the court of
Judicial Magistrate First Class, Umarkhed.
The prosecution examined nine witnesses to bring home
the charge, who are, P.W.1 complainant Gajanan Mane at Exhibit 31,
P.W.2 injured Bhaurao Mane at Exhibit 33, P.W.3 Shivaji Mane as a
witness to the spot panchanama at Exhibit 35, P.W.4 Dadarao
Deshmane as an eyewitness at Exhibit 38, P.W.5 Kisan Khandare as a
chance witness at Exhibit 39, P.W.6 Datta Surose as an eyewitness at
Exhibit 41, P.W.7 Sanjay Mane as a witness to the seizure panchanama
at Exhibit 47, P.W.8 Khushal Mane as a witness to the seizure
panchanama at Exhibit 50 and P.W.9 Dr. Pushpa Salunke at Exhibit 51.
In addition to the ocular evidence, the prosecution relied
on documentary evidence, which is the oral report Exhibit 32, the
statement of the injured which was recorded as dying declaration
Exhibit 34, spot panchanama Exhibit 36, seizure panchanamas Exhibits
48 and 49 and injury certificates Exhibit 52 and 54.
P.W.1 Gajanan Mane, who is the informant, is not an
eyewitness. He has deposed on the basis of information received by
Dadarao Deshmane. His evidence is relevant only to the extent that he
rushed to the scene of incident and found both the accused present on
the road holding axe and stick and abusing. P.W.1 states that he took
his father P.W.2 to the Government Hospital at Umarkhed by jeep and
doctor stitched the wound to the left leg.
In the cross-examination, the statement that both the
accused were present on the road and were holding axe and stick and
abusing, is brought on record as an omission.
The most important witness from the perspective of the
prosecution is P.W.2 Bhaurao Mane. He has deposed that on the day
of the incident the accused broke the land mark between his field and
the field of the accused with the result that water from the field of the
accused entered his field. When P.W.2 asked the accused not to break
the land mark, accused Sudarshan caught his waist. Accused Bapurao,
who was holding axe assaulted P.W.2 on the left leg resulting in
bleeding injury. The servant of P.W.2 Dadarao heard the noise and
rushed towards P.W.2. A neighbour Kisan also arrived at the scene.
Both Dadarao and Kisan shifted the injured P.W.2 to the road and
Dadarao went to the house of the injured P.W.2 to inform the family
members of the incident. In the cross-examination, certain statements
are brought on record as omissions, some of the omissions are indeed
significant. Illustratively, the statement that Sudarshan caught the
waist, that accused Bapurao was holding axe, that Kisan and Dadarao
shifted P.W.2 to the road, are brought on record as omissions. It is
further extracted that in the statement recorded as dying declaration,
P.W.2 stated that Deoba and Amate were present at the time of the
incident. It is further extracted that a criminal case is pending against
the witnesses initiated on report of the accused and the witnesses cited
in the case at hand are accused in the said case. The suggestion that
P.W.2 sustained injury when he and his gang-man assaulted accused 1,
is denied.
P.W.3 Shivaji Mane is the witness to the spot panchanama
Exhibit 36.
P.W.4 Dadarao Deshmane is examined as an eyewitness.
He has deposed that there was an altercation between the injured and
the accused on the issue of diverting the flow of water by breaking the
land mark and both the accused started beating the injured. He has
deposed that accused 1 assaulted the injured with an axe and accused
2 assaulted the injured with stick.
In the cross-examination, it is extracted that the police did
not record the statement of the witness. P.W.4 Dadarao Deshmane
who was then an employee of the injured. It is elicited that the witness
has attended the court with the injured.
P.W.5 Kisan Khandare is not a witness to the assault. His
deposition is hearsay.
P.W.6 Datta Surose, an employee of the injured P.W.2 has
deposed that both the accused assaulted the complainant with an axe.
In the cross-examination, P.W.6 states that his statement
was not recorded by the police. He further admits that at the instance
of accused Bapurao criminal prosecution is pending against him,
complainant, Kisan and Dadarao.
P.W.7 Sanjay Mane is panch witness to Exhibit 48 and
Exhibit 49, who did not support the prosecution.
P.W.9 Dr. Pushpa Salunke, who examined the injured
P.W.2, has deposed that she found two injuries on his person. Injury 1
was lacerated wound to left leg on radial aspects with size 6 x 2 x 1
cm. and injury 2 was swelling on left knee joint. She has proved injury
certificate (Exhibit 52). She states that on perusal of x-ray plate, she
noticed that there was a fracture of left tibia upper third. She has
proved certificate (Exhibit 54). In her opinion, injury can be caused
with axe.
In the cross-examination, she admits that no documentary
evidence is placed on record to show that x-ray plate is that of the
injured P.W.2. She admits that x-ray plate number is not clearly visible
on the x-ray plate and that she referred the x-ray plate number 3157 on
the basis of the discharge card. She admits that injuries referred to
supra are possible if one comes into contact with stone or wood.
The learned Magistrate has recorded a finding, that P.W.2
Bhaurao Mane suffered injuries on 04-8-1999, the said finding is
unexceptionable. However, the learned Magistrate has further recorded
a finding that both P.W.4 Dadarao and P.W.6 Datta are not witnesses
to the incident of assault. The inference is drawn, not on the basis of
the testimonies of P.W.4 Dadarao and P.W.6 Datta. But since their
names are not disclosed by the injured P.W.2 Bhaurao in the statement
Exhibit 34 which was then recorded as dying declaration, the learned
Magistrate has not independently appreciated the testimony of P.W.4
Dadarao or P.W.6 Datta. The approach of the learned Magistrate is not
entirely satisfactory. The testimonies of P.W.4 Dadarao and P.W.6
Datta, who have deposed that P.W.2 Bhaurao was assaulted by accused
1 with axe could not have been disbelieved, without any consideration
much less appreciation of the testimony, only on the ground that these
two witnesses have not been referred to in the statement Exhibit 34.
The learned Magistrate was further not justified in the
observation that since both P.W.4 Dadarao and P.W.6 Datta were
working with P.W.2 injured Bhaurao, they were interested witnesses.
The presence of P.W.4 Dadarao and P.W.6 Datta at the scene was
natural since the assault took place when P.W.2 injured Bhaurao was
working in the field. Merely because the witnesses were working with
the injured, they could not have been disbelieved. At the most, their
evidence could have been tested with same caution.
The learned Counsel for the accused is right in the
submission that the investigating officer ought to have examined the
witnesses named in Exhibit 34, but then the infirmity in the
investigation does not dent the credibility of the evidence of P.W.2
Bhaurao, P.W.4 Dadarao and P.W.6 Datta.
Shri K.S. Narwade, learned Counsel is, however, entirely
justified in the submission that the prosecution has not proved that the
assault caused grievous injury. The fracture allegedly suffered is not
proved. P.W.9 is not a radiologist. She has not taken out the x-ray.
The x- ray examination is not done in the hospital to which she was
attached. The deposition is that the x-ray plates were received at the
hospital in which she was working. There is no evidence on record to
come any definite conclusion that P.W.2 suffered fracture. However,
offence under Section 324 of the IPC is proved beyond reasonable
doubt against accused 1 Bapurao Mane. In so far accused 2 Sudarshan
Mane is concerned, I am inclined to give the benefit of the doubt since
the evidence on record is inconsistent and the material on record is not
sufficient even to take recourse to section 34 of the IPC There is no
infirmity in the acquittal of accused 2 Sudarshan Mane.
The incident occurred in the year 1999. The altercation
was between two neighbouring field owners on the issue of diverting
water. Sending the accused at the jail, at this stage, may convert him
into an obdurate criminal. However, accused 1 Bapurao Mane must
feel the pinch of the unwarranted assault. In this situation, I deem it
appropriate to instead of imposing jail sentence, to direct that accused
1 Bapurao Mane should pay fine of Rs.10,000/- (Ten Thousand), which
if recovered, be paid to the victim Bhaurao Mane (P.W.2) as
compensation under Section 357(3) of the Criminal Procedure Code. If
the fine is not paid within ninety days, accused 1 Bapurao Mane shall
suffer simple imprisonment for six months.
The appeal is partly allowed.