Monday, 16 November 2015

Whether counter cases are to be decided by same Judge?

It is expected that when there are
counter cases the same Judge should try both the cases and decide
both one after the other.
 The State of Maharashtra, V  Govinda s/o Sampatrao Ghogare,


Citation; 2006 BCI525

1. The State of Maharashtra has preferred this appeal against
the Judgment and order passed by the Additional Sessions Judge,
Washim, whereby he acquitted the respondents-accused of the
offences punishable under Sections 307, 326 and 323 read with
Section 34 of Indian Penal Code.
2. The facts giving rise to this appeal are as under :
The complainants and the accused are resident of village
Pardital. PW 2 Parasram son of PW 1 Atmaram was serving with
accused no.1 as labourer. He was engaged on the basis of the
yearly salary payable to him. It is alleged that Parasram was
charged by accused No.1 and his sons for having committed theft.
Parasram, therefore, left the services. Before Parasram left the
services of accused No.1, the father of Parasram had taken part of
the salary of Parasram in advance from accused. Since Parasram
left the job after a charge was levelled against him and before the
completion of one year the accused were demanding back the
money which they had paid to Atmaram. They made such demand

from Atmaram on several occasions, but Atmaram refused to pay
the amount. It is alleged that on the date of incident Atmaram, his
sons Parasram, Gajanan (PW 3) and Dnyandeo (PW 4) were sitting
in front of the cattle-shed in which one Manjulabai (PW 5) also
resides. While they were talking with each other, it is alleged that
accused No.1 and 2 came there. They demanded the amount from
Atmaram. Atmaram said that he would pay the amount after the
accounts are settled. Upon this accused No.2 Prakash got enraged
and hit Atmaram with chappal. Accused No.1 Govinda then rushed
home and brought two sticks with him. Accused No.1 handed over
one of the sticks to accused No.2 Prakash and then they started
assaulting Atmaram. Atmaram sustained injuries over head and
other parts of the body. Parasram, Govinda, Dnyandeo, Manjulabai
and her son Balu (PW 6) tried to intervene. It is alleged that they
too were injured and they all suffered injuries in the said incident.
Atmaram fell unconscious on the spot and the accused then went
away. PW 7 Namdeo then carried Atmaram and the injured to
Mangrulpir Police Station where they lodged report. All of them
were referred to Medical officer. Since Atmaram was unconscious

he was referred to Civil Hospital at Akola. The police seized the
two sticks from the house of the accused persons. They recorded
the statements of the witnesses and filed charge sheet against the
3. The Judicial Magistrate, First Class committed the case to
the Court of Sessions. Charge was framed against the accused. They
pleaded not guilt. They raised the defence that it was the
complainant's party who had in fact assaulted the accused persons.
They denied to have caused any injury to any one from the
complainant's party.
4. The learned Sessions Judge upon consideration of the
evidence found the accused not guilty of any of the offences with
which they were charged. Being aggrieved by that order of acquittal
this appeal has been preferred. We have heard the learned counsel
for the appellant-State and respondents-accused. We have also
gone through the record and proceedings of the trial.
5. The prosecution had examined 11 witnesses in this case
and PW 1 to 6 are the eye witnesses of the incident. PW 1 to 6 also
had suffered injuries in this incident. It is admitted by PW 1

Atmaram that for the same incident they are facing Sessions Trial.
It is however, not clear if this Sessions Trial and the one against
Atmaram and others were tried by one and the same Judge and
whether the Sessions Case against Atmaram and others is decided
and what is the result thereof. It is expected that when there are
counter cases the same Judge should try both the cases and decide
both one after the other. There is nothing on record to verify this.
We have proceeded to hear this appeal and dispose it of.
6. We are aware that in an appeal against acquittal High
Court should be slow in upsetting the judgment of trial Court. We
are however constrained to do it since we find that the findings
recorded by trial Court on the basis of the evidence are
unreasonable and unsustainable.
7. Trustworthiness of the prosecution witnesses has to be
ascertained on the touch stone of F.I.R. The incident in question
took place around 9 P.M. and the report of the said incident is
lodged by PW 2 Parasram at 4 a.m. PW 7 Namdeo has stated that
he had taken Atmaram, Parasram and others in bullock cart to
Mangrulpir. It is in evidence of PW 1 Atmaram that Mangrulpir is

10 kms.away from their village and it takes about 3 hours by
bullock cart to reach Mangrulpir. Thus, if Parasram had lodged
report at 4 a.m. then there is absolutely no delay. There is least
possibility, therefore, of any colour being given to the F.I.R.
8. It is deposed by PW 1 Atmaram that he along with his
sons was sitting near the cattle-shed where Manjulabai resides and
they were talking with each other. It is in the evidence of PW 1
Atmaram as well as other witnesses including witness Nos.2,3,4,5
and 6 that accused no.1 Govinda and accused No.2 Prakash came
there and demanded the amount from PW.1 Atmaram and
Atmaram said that he would pay the amount after the accounts are
settled. It is also further in their evidence that accused No.2 Prakash
beat Atmaram with chappal and accused No.1 Govinda went home,
brought two sticks and gave one of them to Prakash. It is further
stated by all these witnesses that both of them assaulted Atmaram.
Further it is in the evidence that when Parasram and his brothers
tried to save Atmaram they too were assaulted with sticks and all of
them suffered injuries. The origin of incident as given in F.I.R.

(Ex.32) is that accused Nos.1 and 2 had come to demand money
and upon refusal by Atmaram he was beaten with chappal by
accused No.2. This is what is exactly deposed to by the witnesses.
The contents of the F.I.R. (Exh.32) therefore, certainly corroborate
the evidence of these witnesses. The defence of the accused is that
accused No.1 Govinda was coming from the field to go to his home
when Atmaram and his son abused him and beat him. This does
not appear to be probable. There is no reason why Atmaram would
unnecessarily invite trouble by abusing accused No.1 when he
admittedly owed money to accused No. 1. It is admitted in crossexamination
of PW 1 Atmaram that accused No.1 Govinda was
demanding money since one month and he did not pay. This
certainly, therefore, was the cause for accused No.1 Govinda to be
annoyed with Atmaram. Since Atmaram was refusing to pay the
money it is more probable that accused No.1 Govinda and accused
No.2 Prakash may have once again gone to demand the amount.
Even just prior to the incident it appears that Atmaram did not pay
heed to the demand made by accused No.1 Govinda and accused
No.2 Prakash, hence it is more probable that accused No.2 Prakash

got annoyed and assaulted Atmaram with chappal. The incident
had thus begun. We also find from the evidence of prosecution
witnesses that accused No.1 Govinda brought the sticks, to be more
probable. We have already seen that both parties had to face a
Sessions Trial. In this incident it appears that from complainant's
party 1) Atmaram, 2) Parasram, 3) Gajanan 4) Balu, 5) Manjulabai
and 6) Dnyandeo had sustained injuries such as contusions and
lacerations. While from party of the accused 1) Govinda, 2)
Prakash and 3) Vasant had sustained injuries. Their injuries are of
similar nature. The prosecution witnesses do not make a clean
breast how the accused suffered injuries nor the accused have been
able to explain injuries on the person of the complainant and party
satisfactorily. It is suggested to PW 1 that villagers had gathered
there and when they tried to intervene Atmaram and his sons
received injuries. Similar is the suggestion given to PW 2 Parasram.
It is suggested on behalf of accused to PW 9 Dr.Dilip Dhope,
Medical officer, who had examined the injured that Atmaram and
his sons had sustained injuries due to fall on ground and that
suggestion has been denied. The suggestion to Medical Officer is

not in tune with the one given to PWs. The other witnesses to
whom we have already referred to, have also denied the suggestion
given to them. It is for this reason we find that the accused are
unable to explain the injuries sustained by Atmaram and his sons.
The fact is that several persons from both the sides suffered injuries.
The nature of injuries suffered by both sides is almost identical. PW
9 Dr.Dilip Dhope, Medical Officer admits in his cross-examination
that such injuries could be caused by sticks. It is, therefore, obvious
that the accused as well as the complainants had suffered injuries
with sticks. The evidence, therefore, to our mind suggests that
there was a free fight between the two groups. Whenever, there is
a free fight, in such a situation the participants become responsible
for their individual act. Reliance in this regard may be placed in a
case reported in 1992(1) Crimes Pg.583 (Baghel Singh ..vs..
Swaran Singh and others)
9. The prosecution witnesses had suffered following
PW 1 Atmaram Dhengale: 1. Lacerated wound,
over left parital region.

 size 1 1/2”x 1” x 1/2”
2. Lacerated wound 2”
lateral to the above injury
 size 1/2” x 1/2”.
PW 4 Dnyandeo Dhengale:1. Contusion middle
fallents of left index finger.
 Size 1” x 1”.
2. Lacerated injury over
occipital area right side,
size 1/2” x 1/2” redish.
PW 5 Manjulabai: 1. Contusion over left wrist
joint, 1” x 1” redish.
2. Contusion 2” below left
ankle joint size 1” x 1”.
PW 6 Balu: 1.Contusion middle 3
rd of
forearm size 2” x 2” redish.
Age of injury was within
four hours.

PW 3 Gajanan: 1.Contusion on left forearm,
middle 3
rd size 2” x 2”
2. Contusion on left
occipital region, size 1 1/2”
x 1” redish.
PW 2 Parasram: 1.Lacerated wound on right
temporal region, size 1/2” x
1/2” redish
 2. Lacerated wound over
right occipital area size 1/2”
x 1/2” redish.
This takes us to the evidence with regard to individual act of the

accused persons. It is stated by P. W. 1 Atmaram that accused No.2
Prakash had given one blow on head and another on back. He also
stated that accused No.1 Govinda had also given a blow of stick on
head. However, he admits that he did not tell this to the police
while recording the statement that accused No.1 had given a blow
of stick on the head. Thus this is certainly an omission and it can,
therefore, be said that accused No.1 did not cause injury on the
head of P. W. 1 Atmaram. The Medical Officer did find injury on
the head as per Ex. 39. P. W. 2 Parasram has also corroborated the
version of P. W. 1 that Prakash had dealt blow on the head of
Atmaram. Therefore, we find that the injury on the head of
Atmaram which is caused by stick as is stated by Medical Officer
can be attributed to accused No.2 Prakash. It is also deposed by P.
W. 1 that accused No.3 Vasant beat him with stone and fists blows.
P. W. 6 Balu states that Atmaram was beaten with fists blows and
he does not refer to a stone. Further more there is nothing to
attribute the injury with stone to Atmaram. However, there is
enough evidence of all P.Ws. to show that Atmaram was given fist
blows and kicks by accused No.3 Vasant.

10. After having gone through the evidence of prosecution
witnesses namely Atmaram, Parasram, Gajanan, Balu, Manjulabai
and Dnyandeo we find that their evidence does not connect
accused Govind to any specific injury on the person of any of these
prosecution witnesses. What they say is that accused Nos. 1 and 2
had assaulted them and while they were saving Atmaram the blows
fell on them. This kind of omnibus statement would not be enough
to fasten the liability. We have to consider the act of an individual
and if that is to be considered a specific injury ought to be
attributable to him. Since there is an omnibus statement it is
difficult to connect any one of the accused to any particular injury
on the person of prosecution witnesses No. 2 to 6. Therefore, the
evidence suggests that it was accused No.2 who had caused injury
on the head of Atmaram with a stick and Vasanta had assaulted
Atmaram with kicks and fist blows.
11. The next question that is to be considered is whether the
accused can be held guilty under Section 326, 307 of the Indian
Penal Code. For proving an offence under Section 307 following
ingredients have to be established:

i) Death of a human being was attempted;
ii) Such death was attempted to be caused by or
any consequence of the act of accused;
iii) That such act was done with an intention of
causing death, or that it was done with intention
of causing such bodily injury as a) the accused
knew to be likely to cause death or b) was
sufficient in the ordinary course of nature to
cause death.
It is, therefore, to be shown as to what was the actual intention of
the appellants and what is the nature of the injury. Although P. W.
1 Atmaram had suffered injury on head it was not a fracture or
injury of serious nature. The Medical Officer stated that in ordinary
course of nature it would not have caused death. We have seen
that there was a free fight. None of the accused had any other
weapon except sticks. Hence we find that the accused could not
have an intention to kill any-body nor could knowledge be
attributed to them since they had deliberately not aimed at a
particular part of the body. In the circumstances we find that the
injuries on the person of Atmaram were not such that, had
Atmaram died the accused could be convicted under Section 302 of
Indian Penal Code. We, therefore, find that accused No.2

committed an offence under Section 324 of Indian Penal Code for
having voluntarily caused hurt by dangerous weapon to Atmaram.
Accused No.3 Vasanta also has to be held guilty of the offence
punishable under Section 323 of Indian Penal Code for causing
simple hurt to Atmaram. The acquittal of accused No.1 however in
the circumstances will have to be confirmed. In the result we pass
the following order:
Appeal is partly allowed. The judgment and order passed
by the Additional Sessions Judge Washim acquitting the accused
Nos. 2 and 3 is set aside.
Accused No. 2 Prakash Govind Goghare is convicted of
the offence punishable under Section 324 of Indian Penal Code. He
is sentenced to undergo rigorous imprisonment for a period of one
month. He shall also pay fine of Rs.500/-, in default of payment of
fine he shall undergo further imprisonment of 15 days.
Accused No.3 Vasant Govind Ghogare is convicted of
offence punishable under Section 323 of Indian Penal Code. He is
sentenced to pay fine of Rs.1000/-, in default of payment of fine, he
shall undergo simple imprisonment for a period of one month.

The acquittal of accused No. 1 is confirmed. His bail
bond stands cancelled. Accused No.2 should surrender to the bail.

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