Bombay High Court
Balram S/O Jairam Kasdekar vs State Of Mah. Thr. District Govt. ... on 11 July, 2022
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION (REVN) NO. 143 OF 2022
( Balaram S/o Jairam Kasdekar Vs. State of Maharashtra )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. S.I. Ghatte, Advocate for the Applicant/s.
Mr. Amit R. Chutke, A.P.P. for the Non-Applicant/State.
CORAM: AVINASH G. GHAROTE, J.
DATED : 11th JULY, 2022.
Heard Mr. Ghatte, learned counsel for the
applicant and Mr. Chutke, learned APP for the
non-applicant.
2. The revision challenges the judgment dated
09.06.2011 passed by learned Magistrate convicting the
accused No.1 Balaram Jiaram Kasdekar for the offence
punishable under Section 325 of the Indian Penal Code
and sentencing him to suffer rigorous imprisonment for
2 years and to pay a fine of Rs. 1,000/-, in default to
suffer rigorous imprisonment for one month and the
judgment of the appellate court dated 16.03.2020 which
maintained the conviction, however reducing the
sentence to one year and increasing the fine of
Rs. 3,000/-.
3. Mr. Ghatte, learned counsel for the
applicant, at the outset submits, that the since the
Medical Officer was not examined, the injury report
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could not have taken into consideration by the Courts
below. It is further submitted, that even if the MLC report
dated 12.01.2010 Exh. 23, was admitted by the counsel
for the accused by making an endorsement therein, the
same would not dispense with the requirement of the
examination of the radiologist who had written the same.
Reliance for this proposition is placed upon Raju @
Rajeshkumar Munnilal Gupta Vs. State o Maharashtra,
2006 (3) ALL MR (Cri) 2772 and U. Sree Vs. U. Srinivas,
2013 (2) SCC 114 (para 17). He therefore submits, that
on this sole ground, the impugned judgments are liable
to be quashed and set aside and the accused
No. 1/applicant needs to be acquitted.
4. Mr. Chutke, learned APP for the
non-applicant/State, vehemently opposes the contention.
He submits, that once an endorsement of admission of a
document is made by the counsel for the accused on the
document itself, there is no need to examine the author
of the document. He placed reliance upon Akhtar and
Others Vs. State of Uttaranchal, (2009) 13 SCC 722
(para 21), Geeta Marine Services Pvt. Ltd. & Anr. Vs.
State & Anr., 2009 ALL MR (Cri) 672 (paras 13, 14, 16) ,
State of Maharashtra Vs. Ajay Dayaram Gopnarayan &
Anr., 2014 All MR (Cri) 2141 (paras 28, 29, 30) and
Shamsher Singh Verma Vs. State of Haryana, 2015 ALL
MR (Cri) 4923 (S.C.) (paras 10, 11, 14) and submits that
the contention is devoid of substance.
5. In this respect Section 294 of the Code of
Criminal Procedure, being material is reproduced as
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under;
"Section 294. No formal proof of certain
documents.- (1) Where any document is
filed before any Court by the prosecution or
the accused, the particulars of every such
document shall be included in a list and the
prosecution or the accused, as the case may
be, or the pleader for the prosecution or the
accused, if any, shall be called upon to
admit or deny the genuineness of each such
document.
(2) The list of documents shall be in such
form as may be prescribed by the State
Government.
(3) Where the genuineness of any document
is not disputed, such document may be read
in evidence in any inquiry, trial or other
proceeding under this Code without proof of
the signature of the person to whom it
purports to be signed.
Provided that the Court may, in its
discretion, require such signature to be
proved."
6. A perusal of Section 294 (3) of the Code of
Criminal Procedure, would indicate that where the
genuineness of any document is not disputed, the same
may be read in evidence, without proof of the signature
of the person to whom it purports to be signed. The
proviso thereto confers the discretion upon the Court if it
thinks fit to require such signature to be proved. The
expression "genuineness" of any document, in my
considered opinion would mean not only the manner in
which the document is procured but also the contents of
the document. This is so, for the reason that without the
contents being covered by Section 294(3) of the Code of
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Criminal Procedure, it will become impossible to read the
document in evidence. This position in my considered
opinion, is also reflected from Akhtar and Others (supra)
para 21 in which the Hon'ble Apex Court while
considering the provisions of Section 294 of the Code of
Criminal Procedure and an admission of the post-mortem
examination reports before the trial Court made by the
counsel for the accused expressed as under:
"21. It has been argued that non-
examination of the medical officers
concerned is fatal for the prosecution.
However, there is no denial of the fact that
the defence admitted the genuineness of
the injury reports and the post-mortem
examination reports before the trial court.
So the genuineness and authenticity of the
documents stands proved and shall be
treated as valid evidence under Section 294
CrPC. It is settled position of law that if the
genuineness of any document filed by a
party is not disputed by the opposite party
it can be read as substantive evidence
under sub-section (3) of Section 294 CrPC.
Accordingly, the post-mortem report, if its
genuineness is not disputed by the opposite
party, the said post-mortem report can be
read as substantive evidence to prove the
correctness of its contents without the
doctor concerned being examined."
7. Geeta Marine Services Pvt. Ltd. & Anr.
(Supra) in which, in reference to a proceeding under
Section 138 of the Negotiable Instruments Act, it was
held that the document admitted under Section 294(3)
of the Code of Criminal Procedure, could be read in
evidence as genuine without formal proof of the same by
relied upon the dictum of the full bench in Shaikh Farid
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Hussinsab Vs. State of Maharashtra, 1981 Mh.L.J. 345,
para 16 (holding that Section 294 of the Code dispenses
proof of every document when it becomes formal on its
genuineness not being disputed. It does not contemplate
existence of any class of documents as such, requiring
formal proof.); Shamsher Singh Verma (Supra) holds
that upon an endorsement of admission or denial made
by the counsel for defence on the documents filed by the
prosecution or on the application/report with which the
same is filed, was sufficient compliance of Section 294 of
the Code of Criminal Procedure and in case of such
admission there is no need of a formal proof to the same
and it can be read in evidence. It also holds, that the
document in writing, would be a document contemplated
by Sec. 294(3) CrPC in view of the definition of
"document" in Section 3 of the Evidence Act.
8. In Raju @ Rajeshkumar Munnilal Gupta
(Supra), reliance upon which is placed by Mr. Ghatte,
learned counsel for the applicant, what was admitted
was the panchnama Exh. 20, however against that what
was argued to have been admitted was a half burnt
driving license, seized under the panchnama. It is in that
context, it was held by the learned Court that the
admission of the panchnama, would merely indicate
admission of the genuineness of the seizure of the
document under a panchnama but not the genuineness
of the document itself or its contents, and therefore, on
facts, would not be of any assistance to the arguments
canvased by Mr. Ghatte, learned counsel for the
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applicant. In U. Sree Vs. U. Srinivas (Supra), it has been
held, that mere admission of a document in evidence
does not amount to its proof, which was in the context of
Section 65 of the Evidence Act. What is material to note
is that Section 65 of the Evidence Act, deals with cases in
which secondary evidence relating to documents may be
given and mandates that in case of the rules under
Section 66 of the Evidence Act, having being complied
with and the requirement of Section 65 of the Evidence
Act, being satisfied, the secondary evidence may be
permitted. The position, under Section 294 of the Code
of Criminal Procedure, is a bit different inasmuch as
Section 294 (3) of the Code of Criminal Procedure,
specifically mandates the admission regarding the
genuineness of the document and once the documents is
so admitted, the genuineness of such a document,
including its contents and the signatures are held to have
been proved unless the Court so directs regarding the
signatures, in its discretion. U. Sree Vs. U. Srinivas
(Supra), was in the contextual background as to whether
a photo stat copy of the letter alleged to have been
written by a wife to her father could have been admitted
as secondary evidence in proceedings under Section 13 of
the Hindu Marriage Act, and therefore, is in totally
different situation altogether.
9. In the instant case, the victim was referred
to the radiologists who has taken X-rays of the right wrist
of the victim and has given an opinion that there is
fracture of lower third of shaft of ulna, bone of right
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forearm. This report Exh. 23, bears an endorsement by
the counsel for the accused which is dated 14.02.2011 to
the effect "Medical report is admitted by the accused". In
light of the aforesaid admission, by the learned counsel
for the accused, there was in my considered opinion no
need to have examined the radiologist who had
examined the victim, taken out X-rays and given the
report. The contention in this regard, is therefore without
any merits, and is rejected.
10. Mr. Ghatte, learned counsel for the
applicant, thereafter submits, that though the incident is
alleged to have taken place on 31.12.2009, there is
nothing on record to indicate that the injured Surajlal,
was sent to the PHC for a medical examination of the
injury claimed to have been sustained by him due to the
assault by the accused no.1. According to him, and it is
for the first time on 04.01.2010, that the injured Surajlal
PW-3 is claimed to have gone to the Hospital at Dharni
from where he was referred to the General Hospital at
Amravati, where he came to be admitted on 04.01.2010
and was discharged on 07.01.2010 (Exh. 21-dishcarge
summary page 59 with pursis dated 06.07.2022). He
therefore submits, that there is absolutely no explanation
as to what transpired during these four days from
31.12.2009 to 04.01.2010, on the day when he was
admitted, and therefore, it is equally plausible that PW-3
may have sustained an injury in the interim period and
then had tried to pin the blame upon the
accused/appellant. However in order to examine this
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position R & P is necessary. Hence, call R & P.
11. List the revision on 25.07.2022.
CRIMINAL APPLICATION (APPR) NO. 178/2022
Heard Mr. Ghatte, learned counsel for the
applicant and Mr. Chutke, learned APP for the
non-applicant.
2. The application seeks suspension of
sentence and grant of bail. In view of the above position,
which records absence of any explanation during the
period of four days between the date of the incident
which occurred on 31.12.2009 and the date of the
admission in the Hospital which was on 04.01.2010, a
case for suspension of sentence and grant of bail is made
out. Hence the following order.
ORDER
i. The application is allowed.
ii. The sentence imposed by the learned Sessions Court upon the Applicant is hereby suspended.
ii. The Applicant be released on bail on his furnishing a P.R. Bond in the sum of Rs. 25,000/- with one surety of the like amount.
Signed By:SHRIKANT DAMODHAR BHIMTE Signing Date:11.07.2022 20:08 JUDGE SD. Bhimte