Bombay High Court
Bistir Laxman Bhavar And Ors. vs The State Of Maharashtra on 5 July, 1994
Equivalent citations: 1994(3)BOMCR675, 1995 A I H C 1830, (1994) 3 BOM CR 675
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. All the appellants were convicted under sections 332/149 of I.P.C., 325/149 of I.P.C. and 147 of I.P.C.; whereas under the first two counts they were awarded a sentence of two years rigorous imprisonment each under the third count they were awarded a sentence of six months rigorous imprisonment each and a fine of Rs. 50/- and one month rigorous imprisonment in default of payment of fine. In addition appellant No. 3 Nana Chagan Dhodi was convicted under section 307 of I.P.C., 332/149 of the I.P.C. and 148 of the I.P.C. and was sentenced to undergo five years rigorous imprisonment, two years rigorous imprisonment and nine months rigorous imprisonment respectively. In addition appellant No. 4, Babu Raghya Tala was convicted under section 148 of the I.P.C. and sentenced to undergo nine months rigorous imprisonment. The substantive sentences of imprisonment of all the appellants were directed to run concurrently. The aforesaid convictions and sentences of the appellants were by an order dated 30-8-1986 passed by the IIIrd Additional Sessions Judge, Thane in Sessions Case No. 192 of 1984. Feeling aggrieved the appellants have come up in appeal before me. The prosecution case, in brief, is as under:
On the night of 9-3-1983 at about 8.00 p.m. appellant No. 1, Bistir, his brother appellant No. 2 Heera and Babu son-in-law of Tulshibai came in front of Tulshibai's house in a drunken stage. They started assaulting Tulshibai. They paid no heed to Tulshibai's request that as they were in a drunken state they should go home. She came to police station Bhoisar and complained there. Her complaint was entered at the aforesaid police station at 8.15 p.m. by P.W. 7 Bapu Hiranaik. A case under section 323, 504 and 506 of the I.P.C. was registered at police station Bhoisar on her aforesaid complaint. At that time the injured of this case P.W. No. 6 Namdeo Wagh and the deceased Head Constable Kadam were at the Bhoisar police station and the Station Officer P.W. No. 7 Bapu Hiranaik directed them to go to the scene of the incident, and to see as to what the matter was. Accordingly alongwith Tulshibai they left the police station.
2. The further case of the prosecution is that when Head Constable Kadam and Constable Wagh came near Tulshibai's hut the five appellants and acquitted accused namely Krishna, Bachu and Chandu who were on the road tried to run away. However, the police is alleged to have apprehended the appellants Bistir and Heera and took them on road. It is alleged that Head Constable Kadam and Tulshibai's brother Parshuram went in search of appellant Babu Raghya Tala.
3. The prosecution case further is that when P.W. No. 6 Constable Wagh was standing on the road alongwith appellants Bistir and Heera, the aforesaid appellants as well as the other three appellants assaulted him. The time, according to the prosecution, was about 8.00 p.m. It is alleged that appellant Babu Raghya Tala gave a blow with iron-bar on the left cheek portion and appellant Nana gave a stick blow on the head, of the Constable Wagh. It is also alleged that the remaining appellants assaulted Wagh with kicks and fists. Thereafter Constable Wagh left the appellants Bistir and Heera and started proceeding towards Bhoisar police station.
4. The case of the prosecution also is that Parshuram (not examined) brother of P.W. No. 1 Tulshibai followed Constable Wagh on the road and the aforesaid constable told him about assault on him.
5. The prosecution case further is that when Head Constable Kadam was enquiring about appellant Babu Raghya Tala, the appellants as well as the acquitted accused armed with sticks and iron bars emerged there and assaulted him and Parshuram with their respective weapons. It is said that Bistir was armed with a stick, Nana and Babu with iron bars. These persons with their weapons and others with kicks and fists assaulted Head Constable Kadam. It is said that Parshuram was assaulted with fists and kicks. When Parshuram tried to rescue Head Constable Kadam appellant Heera assaulted him with a cycle chain. Head Constable Kadam sustained injuries and fell on the ground.
6. Parshuram, brother of P.W. No. 1 Tulshibai lodged his F.I.R. at Police Station Bhoisar on the same day at 10.30 p.m. On the basis of that F.I.R., a case under sections 353, 332, 333 read with sections 147, 148 and 149 of the I.P.C. was registered. In this F.I.R. the five appellants as well as the three acquitted accused persons are named.
7. P.W. 2 Dr. Ramesh Dalal, of Zilla Parishad Dispensary Bhoisar medically examined Head Constable Kadam, Constable Namdeo Wagh and Parshuram; whereas Kadam and Namdeo Wagh were medically examined on 9-3-1983 at 10.45 p.m. Parshuram was medically examined on 10-3-1983 at 4.50 p.m. On the person of Kadam the doctor found following injuries :
1. Contused lacerated wound 1/2" x 1/2" on his head.
2. Sub-congentrival hemorrhage of right eye.
3. 1/2" right ear cut.
4. Various abrasions with contusion marks on back and bleeding through right ear; and;
5. Contused lacerated wound 1/8" x 1/8" below left ear.
On the person of Namdeo Wagh, the doctor found following injuries :-
1. Contused lacerated wound 1" x 1/2" on left cheek with swelling.
2. Contused lacerated wound 1" x 1/4" x muscle deep.
On the person of Parshuram the doctor found following injuries :-
1. An abrasion 1/8" x 1/8" with four linear abrasion marks on his back.
8. I may mention that Kadam and Namdeo Wagh were medically examined on the next day i.e. 10-3-1983 by a second doctor namely Dr. Vijay Sangole P.W. 3 of Civil Hospital, Thane. They were examined because P.W. No. 2 Dr. Dalal of Bhoisar Dispensary had referred them to the Civil Hospital, Thane, obviously because that was a better hospital and since their condition was fairly serious, they required treatment in a better hospital. Kadam was medically examined on 10-3-1983 at 7.30 a.m. and Dr. Vijay Sangole found the following injuries on his persons:
1. Stitch wound over the neck at the mandicular angle 1" long.
2. C.L.W. at the parietal region 1/4" x 1/4" muscle deep.
3. Haemotoma at occipital region 1" x 1".
Constable Namdeo Wagh was medically examined on the same day at 7.45 a.m. On his person Dr. Sangole found the following injuries :-
1. Stitch wound at the parietal region in middle 1/2" long.
2. Stitch wound at the left parietal region 1/2" long.
3. Haemotoma at the left temporal region 1" x 1".
4. Swelling around the left eye.
5. C.L.W. at the left cheek 1" x 1/4" x muscle deep.
6. Abrasion and contusions over right shoulder 2" x 2".
In the opinion of the doctor these injuries could be caused by hard and blunt objects like sticks and iron rods. The doctor also found that Namdeo Wagh had suffered fracture of the left mandible. Namdeo Wagh was admitted in Civil Hospital Thane from 10-3-1983 to 16-3-1983. Subsequently, Head Constable Kadam is said to have succumbed to his injuries. Presumably looking to the nature of injuries in the offence and the fact that Kadam had died the case was converted to one under section 302 of I.P.C. and 307 of I.P.C.
9. In the usual course the investigation was done and after the same was over, the charge-sheet against the appellants as well as the three acquitted persons, named above, was submitted under sections 302, 307, 147, 148 and 149 of I.P.C. and some other sections.
10. The case was committed to the Court of Sessions. Charges against appellants and acquitted accused were framed under sections 302/149, 307/149, 147, 148 of the I.P.C. alongwith some other sections. To the aforesaid charges they pleaded not guilty and claimed to be tried.
During the trial a large number of witnesses were examined by the prosecution. Out of them one namely P.W. 6 Namdeo Wagh was an eye-witness. The learned trial Judge believed the evidence of the prosecution witnesses and convicted and sentenced the appellants in the manner stated above. He acquitted the three co-accused persons namely Kishan alias Krishna, Bachhu and Chandu. I may mention that the prosecutor did not press the charge under section 302 read with 149 of the I.P.C. in as much as the evidence with respect to it was insufficient. Consequently, the learned Trial Judge acquitted all the appellants under section 302 of the I.P.C. read with section 149 of the I.P.C.
11. I have heard Mr. Niteen Pradhan learned Counsel for the appellants and Mr. D.C. Bagwe, learned Additional Public Prosecutor for the State of Maharashtra, at considerable length. I have also perused the various exhibits tendered and proved by the prosecution to establish its case and the impugned judgment.
12. Mr. Niteen Pradhan learned Counsel for the appellant made three submissions before me. His first submission was that the evidence of P.W. 6, constable Wagh who is the solitary eye-witness of the incident does not inspire confidence and should not be accepted by me. His second submission is, that at any rate, the conviction of appellant Nana Chavan Dhodi under section 307 of the I.P.C. is unsustainable in law and consequently he should be acquitted on that count. His third submission is that looking to the totality of the circumstances the instant is one of those cases in which the jail sentence of the appellants be reduced to the period already undergone by them and in lieu of their remaining jail sentence some fine be imposed. He also conceded that in case that is done the appellants would not consider it to be enhancement of sentence.
13. So far as the merits of the matters are concerned the crucial point for determination is as to whether the evidence of P.W. 6, constable Wagh inspires confidence. We have to examine his evidence in the background of the fact that he is a injured witness and had no enemity against the appellants and consequently there was no reason for him to falsely implicate them. With the assistance of the learned Counsel for the appellant I have gone through the statement of P.W. 6 and in my opinion he is a wholly reliable witness. The manner of assault as given out by him is corroborated by the nature of the injuries found on his person, by the two doctors. Another circumstance which lends assurance to his statement is the prompt F.I.R. of the incident which was lodged by Parshuram.
14. Mr. Niteen Pradhan assailed the testimony of P.W. 6 on a number of grounds. His first ground of attack is that the prosecution has inflated the number of injuries alleged to have been found on his person. In this connection Mr. Pradhan pointed out that whereas Dr. Dalal who first examined P.W. 6 found only 2 injuries on his person; P.W. 3 Dr. Sangole found 6 injuries on his person. I regret, I cannot accept the contention of Mr. Pradhan. As the condition of P.W. 6 was critical, P.W. 2 Dr. Dalal naturally must have been in a hurry to send him to Civil Hospital, Thane where better medical facilities were available and it appears that he examined the victim in a great hurry and thus missed mentioning the same number of injuries in the injury report of the victim which were mentioned by Dr. Sangole. Further no suggestion was given to P.W. 3 Dr. Vijay Sangole that he inflated the number of injuries on the person of constable Wagh in his injury report. In my opinion there is no merit in the first contention of Mr. Pradhan and the same is rejected. Mr. Pradhan next contended, and very vehemently too, that the incident is alleged to have taken place on 9-3-1983 at about 8.00 p.m. at which time it is dark and in the absence of any light P.W. 6 constable Wagh could not have recognised the real assailants. I regret that I cannot accept this contention either. The evidence is that appellants Bistir and Heera had been apprehended by him and for a fairly long time were with him on the road. Thus he had ample opportunity to recognise them as well as the other appellants because all of them only launched an assault on him after coming into close contact with him. Further we should not forget that at 8.00 p.m. darkness must just about have set in and it must not have been pitch dark or very dark. There would have been some merit in Mr. Pradhan's contention had the incident taken place in pitch darkness. Apart from all this the Apex Court has held that known persons can be identified by their voice, gait etc. Consequently, I reject this contention of Mr. Pradhan.
15. The third contention of Mr. Pradhan is that certain vital facts have been ommitted in the F.I.R. and improvements in the prosecution case have been made at a later stage and hence the prosecution case should not be accepted. One omission on which Mr. Pradhan harped on is that in the F.I.R. it is not mentioned that P.W. 6 constable Wagh was assaulted by iron bar. It is well settled that the F.I.R. is not meant to be an encyclopedia. Its object is to set the machinery of law into motion against the delinquent persons and as long as the broad features of the prosecution case are unfolded in the F.I.R. it hardly matters if details are absent in it. Further it was not P.W. 6 Wagh who lodged the F.I.R. but the same was lodged by Parshuram who was told about the incident by Wagh. It may be that Parshuram may not have been told about this fact by Wagh or he may have forgot to mention it. The medical evidence shows on the person of Wagh iron-bar injuries. As stated by Wagh the blow with a iron bar struck him on his left cheek and Dr. Sangole P.W. 3 stated that on Wagh's person he found fracture of the left mandible. Hence I find this contention of Mr. Pradhan to be without merit.
16. Mr. Pradhan also contended that Parshuram was a witness whose evidence was essential to the unfolding of the narrative and since he has not been examined by the prosecution the adverse inference provided by sub-clause (g) of section 114 of the Evidence Act should be drawn against it. In my opinion Parshuram was a essential witness who should have been produced by the prosecution but his non-examination is not very material in the instant case because I have the credible, dependable, cogent, and unimpeachable testimony of P.W. 6 constable Wagh which is corroborated by the medical evidence and to which assurance is lent by a prompt F.I.R.
It is well settled that the testimony of an injured witness should only be rejected in exceptional circumstances and no such circumstances could be pointed out by Mr. Pradhan.
17. For the aforesaid reasons, the appellants have failed to make out a case for acquittal.
18. Now I take up the second and third submissions of Mr. Pradhan. Mr. Pradhan's second submission is that the conviction of appellant Nana Chagan Dhodi under section 307 I.P.C. is legally unsustainable. It is true that he assaulted P.W. 6 constable Wagh with a stick on the head but the seat of injury and the weapon alone are not conclusive factors for determining as to whether an offence under section 307 of I.P.C. is made out. It has been laid-down in a Division Bench decision of our Court 1978 Criminal Law Journal, page 411 - State of Maharashtra v. Bodya Ramji Patil, that unless the injuries are capable of causing death it would not be proper to convict under section 307 of the I.P.C. I am in respectful agreement with the ratio laid-down by the aforesaid Division Bench. Before convicting under section 307 I.P.C. there should be some evidence that the injuries were dangerous to life and could have caused death. I have perused the statements of both the doctors and I do not find any such averment made by them. I find that the head injuries of the victim were simple in nature. I further find that this is not a case in which there was any enemity between the victim and the appellants, from which it could be inferred that there was an intention to kill him. For the aforesaid reasons I set aside the conviction and sentence of appellant Nana Changan Dhodi under section 307 of Indian Penal Code and acquitt him on that count.
19. Now I propose taking up the third submission of Mr. Pradhan which is that the instant is one of those cases in which the jail sentence be reduced to the period already undergone by the appellants and in lieu of the remaining portion of their jail sentence some fine be imposed, which the appellants would not consider as enhancement of sentence. The learned Additional Public Prosecutor vehemently opposed this and contended that the appellants have taken law in their hands and severely assaulted P.W. 6 Constable Wagh, a public servant, who went on call of duty. Initially I was not inclined to accede to Mr. Pradhan's submission but after perusing the record I found that including the period served as an under trial, the five appellants have already been in jail for about one year. The remaining portion of their sentence is thus only one year. Nana Chagan Dhodi who had been sentenced to 5 years R.I. under section 307 of Indian Penal Code has already been acquitted by me on that count. Obviously sending them back to jail to serve one year and that too more than eight years after the incident would be too harsh. In my opinion the better course would be to compensate the victim. P.W. 6 Constable Wagh who admittedly received serious injuries during the incident. The evidence on record discloses and it is not disputed by Mr. Pradhan either, that appellant No. 4 Babu Raghya Tala was responsible for causing the fracture of the left mandible bone of P.W. 6 Constable Wagh. In my view his jail sentence on all the counts should be reduced to the period already undergone by him and in view of the extremely serious injuries he caused he should be sentenced to pay a fine of Rs. 5,000/-. As regards other appellants namely ;
1. Bistir Laxman Bhavar,
2. Heera Laxman Bhavar,
3. Nana Chagan Dhodi; and
4. Choashya alias Ghosham Laxman Bhavar their sentences on all the counts are also reduced to the period already undergone by them but in as much as they did not cause serious injuries like appellant No. 4 Babu Raghya Tala the ends of justice would be met if they are sentenced to pay a fine of Rs. 1500/- each. In case the appellants do not deposit the fine within a period of four months from today they shall serve-out the remaining portion of their sentence.
20. Out of the total fine realised Rs. 8,000/- would be awarded to P.W. 6 Namdeo Fakira Wagh. The remaining of Rs. 3000/- would go to the State of Maharashtra. The fines shall be deposited in the Court of 3rd Additional Sessions Judge, Thane, who shall intimate Constable Namdeo Fakira Wagh about the compensation which has been awarded to him.
21. In case the appellants deposit the fine within the prescribed period, their bail-bonds will stand cancelled and sureties discharged.
22. The learned 3rd Additional Sessions Judge, Thane, would accept the fine if either a certified copy of this judgment is filed before him, or on receipt of the operative part of my judgment, which the office shall despatch forthwith.
23. With the aforesaid modification in convictions and sentences of the appellants this appeal stands disposed of. Issuance of certified copy of my judgment is expedited, in case an application for the same is made by counsel for the parties.
With modification appeal disposed of.