Bombay High Court
Ajit Bhimrao Mali And Others vs State Of Maharashtra And Others on 4 August, 1997
Equivalent citations: 1998(5)BOMCR385
Author: Vishnu Sahai
Bench: Vishnu Sahai
ORDER Vishnu Sahai, J.
1. Through this appeal, the appellants have challenged the judgment and order dated 30-3-1990 passed by the Additional Sessions Judge, Kolhapur, in Sessions Case No. 122 of 1987, convicting and sentencing them, in the manner slated hereinafter :-
i) Under section 307 r/w 149 I.P.C. to five years R.I. and to pay a fine of Rs.
10,000/- in default to suffer R.I. for one year;
ii) Under section 147 I.P.C.) A consolidated sentence of 6 months
iii) Under section 148 I.P.C.) R.I. and a fine of Rs. 500/- i.d. to suffer R.I. 3 months.
It needs to be mentioned that nine other co-accused persons, who were put up for trial, along with the appellants, have been acquitted vide the impugned judgment.
2. At the very outset, I would like to observe that the learned trial Judge erred in awarding a consolidated sentence to the appellants, for offences under section 147 and 148 I.P.C. The law is that on each count, a separate sentence should be awarded, to the guilty accused.
3. In short, the prosecution case runs as under :-
On 9-2-1987, the informant Makarand Ranganekar, P.W. 1, along with his friend Raju Kashid, (not examined) had gone to eat paan in Kakkaya Chowk in Jawahar Nagar, District Kolhapur. It is said that the appellant-Ganpat was also there and some boys from Kakkaya Chowk, pushed him, resulting in his falling down. When the complainant and Raju Kashid, picked up the appellant-Ganpat, the said boys demonstrated as to why the complainant should have picked up Ganpat. Thereafter, the complainant, Raju and the said boys went away to their houses.
After taking his meals at about 8.30 p.m. same day, the complainant came to Datta Samarat Chowk in Jawahar Nagar in the District of Kolhapur. He found that Manik Patil, P.W. 7 and Raju were also sitting there and went over to them. In the meantime, about 15 persons, including the appellants, came and started abusing complainant. The appellant-Ajit assaulted him with a cycle chain on his head as a consequence of which he fell down and thereafter, the appellants-Vasant, and Ganpat, inflicted stick blows on his person. The evidence is that when Manik intervened, the appellants, started assaulting him; Ajit with a cycle chain, Vasant and Ganpat, with sticks, and Jayendra with an iron bar and the weapons, with which Krishna and Prakash assaulted, have not been disclosed in the evidence. It is said that appellant-Datta was abusing.
It is said that after assaulting Makarand and Manik, the appellants and others ran away. It is said that they were recognised in electric light which was burning there.
Evidence is that Makarand and Manik had sustained serious injun'es.The former was rushed to the private dispensary of Dr. Girish Shetye, P.W. 2 and the latter to the C.P.R. Hospital, Kolhapur.
4. Evidence of Dr. Shetye is that same day at 9 p.m., he examined Makarand and found that he had suffered an injury on his occipital and right temporal region. He applied 11 stitches to the said injury. Thereafter, he advised Manik to receive medical treatment at the C.P.R. Hospital, Kolhapur.
5. Evidence is that Dr. Chandrakant Shinde, P.W. 9, medically examined Manik at 9.30 p.m. on the same day, at the C.P.R. Hospital, Kolhapur. On his person, he found following injuries :-
"1. Lacerated wound, 3" above left eye-brow.
2. Clinically fracture, frontal bone.
3. Haematoma, above wound No. 1.
4. Abrasion, right fore arm, exterior aspect.
5. Two abrasions, lower lateral part of right thigh.
6. Minor abrasion, below thyroid cartilage.
7. Haematoma, 3' below rt. elbow posteriorly."
He stated that Manik was unconscious. In his opinion, his injuries were simple in nature and must have been caused by a hard and blunt object like sticks, six hours prior to the medical examination. It may be mentioned that in his cross-examination, in para 12, he stated that he suspected fracture of frontal bone but, x-ray report shows that there was no such fracture.
6. The F.I.R. of the incident was lodged by P.W.1 Makarand at 1.55 a.m. on 10-2-1987 at Rajarampuri Police Station.
7. Thereafter, through a yadi, Makarand was sent for medical examination to C.P.R. Hospital, Koihapur, where he was medically examined at 3.30 a.m. same day by Dr. Chandrakant Shinde, who found the following injuries on his person :-
"1. Sutured wound in private hospital, right parietal.
2. Sutured wound in private hospital, left occipital region.
3. Contusion, right scapular medial border.
4. Contusion, left scapular extending from middle of shoulder towards and obliquely medially.
5. Abrasion 4" below left elbow."
In the opinion of the doctor, these injuries were simple in nature and might have been caused by a hard and blunt object like sticks.
8. The case was investigated in the usual manner. During the course of it, recoveries of blood-stained weapons were made on the pointing out of same, of the appellants, on the pointing out of appellant-Ajit, a cycle chain, a bamboo stick, on the pointing of appellant-Vasant, a wooden strip, on the pointing of appellant Ganpat, a iron rod and on the pointing out of appellant-Jayendra, were recovered. The said recoveries were made under a Panchnama in presence of the public .
It is significant to point out that the said articles were sent to the Chemical Analyst who found human blood on them. The blood of 'B' group, was found on the cycle chain and bamboo stick. Evidence is that both the victims, were having blood of 'B' group.
After completion of the investigation the appellants and others, were charge-sheeted.
9. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellants and the acquitted accused, were charged on the counts, on which the appellants have been found guilty by the trial Court and also under sections 324, 323, 504 r/w 149 I.P.C. To the said charges, they pleaded not guilty and claimed to be tried.
During trial, in all the prosecution examined 11 witnesses. Four of them namely Makarand, Dilip, Prabhakar and Manik, P.Ws. 1, 5, 6, and respectively, were examined as eye-witnesses.
In defence, no witness was examined. The learned trial Judge believed the evidence vis-a-vis the appellants, and convicted and sentenced them, in the manner stated above. He however, acquitted nine co-accused persons, who were put up for trial along with the appellants.
Hence, this appeal.
10. I have heard Mr. B.R. Patil for the appellants, Mr. S.R. Borulkar, Additional Public Prosecutor for the respondent No. 1 and Mr. D.S. Sawant, learned Counsel for the respondent Nos. 2 and 3. I have decided the matter with the assistance of Counsel for the appellants and the respondent Nos. 1 to 3. I have perused the deposition of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution and the impugned judgment. After thoughtfully reflecting over the matter, I am of the view that the appellants Krishna, Prakash and Datta (appellant Nos. 4, 6 and 7) deserve the benefit of doubt. I am also of the view that the remaining appellants, cannot be convicted for offences for which they have been found guilty by the trial Judge. In my view, they would only be guilty for offences punishable under section 324 r/w 149 I.P.C., on two separate counts; one for inflicting injuries on the person of Makarand P.W. 1 and one for inflicting injuries on that of Manik P.W. 1.
11. In the instant case, four eye-witnesses namely Makarand, Dilip, Prabhakar and Manik, P.Ws. 1, 5, 6, and 7 respectively were examined by the prosecution. I have gone through their evidence. I find that all of them have stated that the appellant-Ajit with a cycle chain, appellant-Vasant and Ganpat with sticks and appellant-Jayendra with an iron bar, assaulted Makarand and Manik. This claim of the eye-witnesses pertaining to the manner of assault, is corroborated by the nature of injuries received by Makarand and Manik, which have been reproduced extensively in the earlier part of the Judgment. A perusal of the injuries ol Manik and Makarand show that they could be caused by a cycle chain, sticks and iron bar.
Since there was electric light, on the place of the incident, the said four eyewitnesses would have had no difficulty in recognising the said appellants.
Assurance to their participation is rendered by the circumstance that during the investigation, btood-stained weapons were recovered on the pointing out of these appellants. A cycle chain on the pointing out of appellant-Ajit, a bamboo stick on the pointing out of appellant-Vasant, a wooden strip on the pointing out of appellant-Ganpat and an iron bar on the pointing out of appellant-Jayendra. It is significant to point out that these articles were sent to the Chemical Analyst who found human blood on them and also found blood on the cycle chain and bamboo stick was of 'B' group; the blood group of the two victims.
11-A. However, it would not be safe to accept the said ocular account against the appellants Krishna, Prakash and Datta. It should be borne in mind that in riot cases ordinarily unless there is cogent, consistent, evidence pertaining to specific acts committed by the accused person, it would not be prudent to record/sustain the conviction on omnibus statements, of the witnesses. It is after examining the ocular account, in the said light that I have reached this conclusion.
So far as the appellant-Datta is concerned, I find that only the informant Makarand has given him a specific role namely that of abusing him. The three other eye-witnesses have not specifically stated that the appellant-Datta was also one of those who abused.
So far as the appellant-Krishna is concerned, there is only evidence of witness Manik, to the effect that he assaulted him and Makarand. It is significant to point out that neither Makarand nor any of the two of the other eye-witnesses, assigned specific part to the appellant-Krishna.
So far as appellant-Prakash is concerned, there is only evidence of witness Manik that he assaulted him and Makarand with a hockey-stick. It is significant to point out that neither Makarand nor any of the two other witnesses, state this.
In the above state of evidence, in my view, it would not be safe to sustain the conviction of the appellants-Krishna, Prakash and Datta.
12. This brings me as to what offence has been committed by the appellants-Ajit, Vasant, Ganpat, and Jayendra. Since in all, there were 16 persons, and 9 have been acquitted by the trial Court, and 3 by me, only 4 (said appellants) remain. Offences under sections 147 and 148 I.PC. pertain to rioting and for rioting , it is a essential prerequisite that there should be an unlawful assembly as is evident from a perusal of the provisions contained in section 146 I.PC. and for unlawful assembly, 5 or more persons are required as mandated by section 141 I.PC. Since, the number of accused whose participation has been accepted by me, is 4, these appellants, have to be acquitted for the offences punishable under section 147 and 148 I.P.C. For the same reason, they cannot be convicted for offence punishable under section 307 r/w 149 I.P.C. As a matter of fact, evidence shows that no offence even under section 307 I.P.C. simpliciter can be said to have been made out in the instant case.
In my view, appellants-Ajit, Vasant, Ganpat, and Jayendra, cannot be convicted for offence punishable under section 307 r/w 34 I.P.C., in respect of injuries sustained by Markand and Manik. In this connection, it would be pertinent to refer to the evidence of Dr. Chandrakant Shinde, P.W. 9, who medically examined both Manik and Makarand. His evidence shows that all the injuries of both these persons, were simple in nature. He has not stated that the injuries sustained by them, were either dangerous to life or were capable of causing death.
But, all the same, in my view, when these four appellants, armed with cycle chain, sticks and iron bar, participated in the incident, and out of them, appellant-Ajit, Vasant and Ganpat assaulted both Makarand and Manik, and Jayendra assaulted Makarand, it would be safe to hold that they shared the common intention to inflict simple injuries on the said victims, for an offence under section 324 I.RC. In my view, these appellants, consequently, deserve to be convicted for offence, under section 324 r/w 34 I.P.C. on two separate counts, one for causing simple injuries to Makarand and other for causing simple injuries to Manik.
13. The question is what should be the quantum of sentence, which should be awarded to these appellants. Mr. B.R. Patil, learned Counsel for the appellants, pointed out that they have already been in jail for nearly 3 months and the ends of justice, would be satisfied if jail sentence, is reduced to the period already undergone by them and some fine which should be directed to be paid as compensation to the victim, is imposed on them.
Considering the circumstances that nearly 10 years have passed and the incident was an off-shoot of trifling incident, which had taken place two hours earlier, I am inclined to accede to his request. In my view, the ends of justice would be met, if each of the four appellants are separately sentenced to pay a fine of Rs. 2,500/- on each of the two counts, under section 324 r/w 34 I.RC.
14. In the result, this appeal stands partly allowed and partly dismissed.
I acquit the appellant Krishna Anna Dhobale, Prakash Baburao Raut and Datta Dadoba Dhobale, for offence punishable under section 147, 148 and 307 r/w 34 I.RC. and set aside their convictions and sentences on the said counts. In case they have paid fine, it shall stand refunded to them. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.
I acquit the appellant-Ajit Bhimrao Mali, Vasant Dadu Dhobale, Ganpat Dadu Dhobale, and Jayendra Ishwara Yadao, for offences under section 147, 148 and 307 r/w 149 I.P.C.
I set aside their convictions and sentences on the said counts. In case they have paid fine, it shall stand refunded to them. However, I find these appellants to be guilty for offences punishable under section 324 r/w 34 I.RC. on two separate counts; one for causing simple injuries to P.W. 1 Makarand and one for causing simple injuries to P.W. 7 Manik. I however, reduce jail sentence of the said appellants, on each of the said counts, to the period already undergone by them and direct that on each of the said counts, each of them shall pay a fine of Rs. 2,500/- within 6 months, from today, in the trial Court failing which, the defaulting appellant/appellants, as the case may be, would undergo a separate sentence of 6 months, R.I. on each of the two counts. In other words, each of the appellants, shall pay a total fine of Rs. 5,000/-.
The fine realised from the appellants, shall be paid in equal proportion as compensation, to the two victims namely P.W. 1 Makarand Shamrao Rangnekar and P.W. 7 Manik Ramchandra Patil. As soon as the fine is deposited, the trial Court shall inform the said persons about this compensation and pay the same to them. In case they are not alive, the said amount would be paid to their legal heirs.
In case the fine imposed by me is not deposited within 6 months from today, the defaulting appellant/appellants, as the case may be, would undergo the sentence in default.
The trial Court shall also accept the fine, on production of the certified copy of this judgment, which in case an application is made, shall be issued on an expedited basis.
15. Appeal partly allowed.