Chapter VI, Para 23 of the Criminal
Manual reads as under:
"23. It is desirable in judicial
proceedings to prevent, as much as
possible, doubt as to the identity of the
person referred to therein. It frequently
happens that the same individual is known
by more names than one. Thus sometimes only
the surname, sometimes only the name of the
caste, or occupation or the village of the
individual is mentioned or he is spoken of
by a nickname, such as Bapu Saheb, Nana
Saheb or Bahau Saheb. Such variations in
description require explanation to render
them intelligible to an appellate Court. A
court of first instance should, therefore,
take care not only to ascertain, but to
make clear by evidence duly recorded, the
identity of any individual who is so
referred to under varying appellations and
if such an individual is an accused person,
his name and serial number according to the
chargesheet
should be cited in any passage
in which he is otherwise designated."
It is clear that High Court has laid down
guidelines requiring reference to be made to
accused person by name as well as serial Number
according to the chargesheet,
in the proceedings.
Had the above guidelines been strictly followed,
the obvious discomfort to the Court could have
been avoided. In the Marathi version of the
evidence, it is clearly recorded that the error
was on the part of the Court. No specific
guidelines are required for trial Courts to
understand that judicial records need to be clear
and specific. Still, the High Court has in clear
terms prescribed guidance in this regard, as
mentioned above. It is expected that the trial
Courts should strictly follow the Manual.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.86 OF 2000
Suryakant s/o Chandrakant Gade @ Surya,
V
The State of Maharashtra,
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT : 28TH AUGUST, 2014.
Citation; 2015ALLMR(cri)602
1. Appellant No.1 Suryanakt Chandrakant Gade
and Appellant No.2 Shashikant Chandrakant Gade
(original Accused Nos.1 and 2 respectively,
hereafter referred as “accused No.1” and “accused
No.2”) were prosecuted before the Additional
Sessions Judge, Kopargaon in Sessions Case No.118
of 1993 for offence punishable under Section 307,
326 read with 34 of the Indian Penal Code, 1860
('I.P.C.' in brief). They have been convicted for
offence under Section 307 and 325, both read with
Section 34 of I.P.C. For offence under Section 307
of I.P.C. each of them has been sentenced to
suffer rigorous imprisonment for four years and
fine of Rs.5000/,
in default to suffer simple
imprisonment for one year, and for offence under
Section 325 of I.P.C., each of them has been
sentenced to suffer rigorous imprisonment for one
year and fine of Rs.2000/,
in default to suffer
simple imprisonment for four months. The
Substantive sentences are to run concurrently. The
trial Court directed the amount deposited by the
accused to be paid as compensation to the victim
Rajendra Laxman Gade. Thus, this Appeal.
2. The case of prosecution in short, is as
under:(
A) On 17th March, 1992 complainant Kankarbhai
Amirbhai Shaikh, resident of Maygaon Devi, TqKopargaon
filed First Information Report (“F.I.R.”
in brief) at Crime No.60 of 1992 under Section
326, 324 read with 34 of I.P.C., at 20.15 hours
with Police Station Kopargaon. He reported that he
was working since seven years with one Laxmanrao
Gade on the field at Maygaon Devi. The field has
facility of water from well as well as water
channel of irrigation. On 15th March 1992, a
Sunday, he was informed by Rajendra, son of Laxman
Gade @ Dada that they will be getting irrigation
water and thus after meals he went and waited near
"Vasti" i.e. farm house of the field. After little
while Rajendra Gade (hereafter referred as
“victim”) came along with labour Bhagwanta
Karbhari Kadam on motorcycle. All the three then
proceeded further on motorcycle towards field of
one Sudam Gade which is on the “Shiv” of “Nali”.
The supply of water of irrigation to the field of
Sudam was already complete and in order to divert
water to their field, they closed the “Bare” i.e.
outlet. Bhagwanta (Bhagwan Kadam – PW3)
was asked
to proceed towards the field which was downstream
and Rajendra Gade and complainant Kankar proceeded
on motorcycle towards farm house which was on the
lower side. After stopping the motorcycle there,
Rajendra Gade and complainant started proceeding
for closing "Bare" – outlet walking upstream. They
reached the field of Chandrakant Gade (father of
accused persons). At that place near the "Bare" –
outlet, which was leading water to their field,
the accused No.2 Shashikant and accused No.1
Suryakant were present. Accused No.2 Shashikant
had a stick and accused No.1 Suryakant had spade
with wooden handle. They were near the outlet from
where water was going in their field. At that
time, victim Rajendra asked complainant to close
the outlet which was there. At that time both the
accused objected and claimed that their "Bare" –
outlet should not be closed and they have to water
their field. At that time victim Rajendra stated
that Patkari (i.e. Channel Incharge)
had
permitted him to take the water and so they will
be taking water to their field, which is downstream.
The victim thus explained to the accused
persons and asked the complainant to close the
"Bare" – outlet. Complainant entered the water
channel to close the Bare – outlet. At that time
accused No.2 Shashikant gave a stick blow near the
hip of complainant. Because of this, victim
Rajendra started explaining to accused No.2
Shashikant. At that time accused No.1 Suryakant
charged with spade in his hand, towards the victim
and so victim Rajendra gave a slap to accused No.1
Suryakant. At that time, accused No.2 Shashikant
gave a blow by stick which he was holding, to the
head of victim Rajendra with force. Immediately
complainant tried to take away the stick of
accused No.2 Shashikant, at which time accused
No.1 Suryakant gave a severe blow on the head of
victim Rajendra by the blunt side of spade he was
holding in his hand. Victim Rajendra got injured
and fell on the ground and then both the accused
ran away with the instruments they had. The
incident was seen by Bhagwan Kadam (PW3)
also.
. The complainant called out to Sunil
Radhakishan, who had farm house nearby. He came
along with his brother Shantaram and father
Radhakishan as well as one Netaji Eknath. The
incident was told to them. A bullock cart was
brought and those persons as well as Bhagwan Kadam
took victim Rajendra in the bullock cart towards
residence of the owner. Complainant stayed at the
farm house. When the incident took place there was
moon light and the incident was clearly seen.
Similarly, both the accused reside at some
distance from the field of the owner in their
house built on the farm and are of daily
acquaintance, being related to the owner. Victim
Rajendra was taken to Kopargaon and from there to
Nashik, was learnt by the complainant. Complainant
felt that the owner would file report to Police
and so the complainant himself did not come to the
Police Station earlier.
(B) F.I.R. with the contents as above, was
received by A.S.I. Murlidhar Dhondiba Karale
(PW7).
The A.S.I. sent the complainant for
medical examination and took up the investigation.
Regarding the same incident, accused No.1
Suryakant also filed a complaint which was
registered as non cognizable case No.188 of 1992
( Exhibit 46). The A.S.I. PW7
Murlidhar recorded
Spot Panchnama. The station diary entry 76 of 1992
shows that the victim Rajendra had been taken to
the hospital at Kopargaon in the same night of
incident and the medical officer had sent
intimation to the Police which was received at
1.45 a.m. (Exhibit 15). A Police Station Entry
No.72 of 1992 of Kopargaon Police Station shows
that Police wanted to record statement of the
victim but the doctor found that the victim was
not in a position to give statement (Exhibit 15).
The victim being serious, was shifted to Nashik
and Police from Nashik also verified from Police
Station, Kopargaon whether any offence was
registered, as the victim had suffered serious
head injury. Station Diary Entry in this regard at
77 of 1992 dated 17th March 1992, was made at
12.15 hours at Kopargaon Police Station. The
victim was then shifted from Nashik to Bombay
Hospital at Mumbai, looking to the serious injury
he had to his head and was treated there.
(C). PW7
A.S.I. Murlidhar had visited the
victim when victim was at Nashik and had found him
to be unconscious. After the F.I.R. was
registered, accused No.1 Suryakant was arrested on
17th March 1992 (Exhibit 16) and accused No.2
Shashikant came to be arrested on 20th March 1992,
(Exhibit 17). After accused No.2 Shashikant was
arrested, he gave discovery of the spade and stick
used at the time of incident, vide Memorandum and
Panchnama (Exhibit 34 and 35), on 22nd March 1992.
The clothes of victim Rajendra were seized by
Police (vide admitted Panchnama Exhibit 21) on 14th
April 1992. The Police sent the seized clothes
having blood stains to the Chemical Analyzer.
Subsequently, chargesheet
came to be filed. The
offence was found to be Sessions triable and the
matter was committed to the Court of Sessions.
3. Charge was framed under Section 307, 326
read with 34 of I.P.C. against both the accused.
They pleaded not guilty. Their defence as is
appearing from the crossexamination
of the
prosecution witnesses, does not appear to be of
denial of incident taking place but according to
the accused persons, it was the complainant
Kankarbhai and victim Rajendra who had tried to
forcibly divert the water, although the accused
persons asked them not to do so, and there was
scuffle in which victim fell on rock of the "Bare"
and sustained injury. In statement under Section
313 of the Code of Criminal Procedure, 1973
(“Cr.P.C.” in brief), it is tried to say that due
to political reasons the accused persons have been
falsely implicated.
4. Prosecution brought on record evidence of
seven witnesses. There are certain documents,
genuineness of which was not denied and thus they
were exhibited in terms of Section 294 of Cr.P.C.
These documents include intimation dated 16th March
1992 from medical officer Kopargaon to P.S.I.
Kopargaon regarding admitting victim Rajendra in
hospital and the receipt of intimation at 1.45
hours on 16th March 1992. The same document has
endorsement by the doctor that the patient is not
able to give statement. Endorsement is of 2.00
a.m. of 16th March 1992. Arrest Panchnama of
accused No.1 Suryakant dated 17th March 1992 has
been admitted at Exhibit 16, which recorded that
there was no sign of any injury on his person. The
Spot Panchnama dated 18th March 1992 was admitted
at Exhibit 36. Arrest Panchnama of accused No.2
Shashikant dated 20th March 1992 was admitted and
is at Exhibit 17. He also did not have signs of
any fresh injury on his person. The injury
certificate of victim Rajendra from Kopargaon
Municipal Hospital dated 19th March 1992 was
admitted by accused and is at Exhibit 18. The
certificate recorded history of assault by spade
dated 15th March 1992 at 10.00 p.m. The patient was
mentioned to be semiconscious.
The injury noted
was “C.L.W. Parietal region to scalp, size 3 c.m.
X 2 c.m. X bony deep. Xray
of skull showed
fracture of parietal bone. The injury certificate
of complainant Kankarbhai was also admitted by the
accused and was marked Exhibit 19. The certificate
recorded history of assault by weapon stick. There
was a contusion to lumbar region, 5 c.m. X 3 c.m.
with tenderness and restricted movements. The Xray
showed fracture of L5
with dislocation of
lumbosacral joint leading to spondylitis.
Exhibit 20 is letter by Police to medical officer
at Nashik dated 16th March 1992, where doctor
endorsed that the patient was not in a condition
to give statement. This was at 10.15 a.m. of 16th
March 1992. This document has been admitted by the
accused. It appears that the victim Rajendra was
treated by Dr. Ujwala Pathak at Nashik and her
certificate was admitted by the accused at Exhibit
22. Medico Legal report of victim Rajendra from
Nagji Medical Hospital dated 16th March 1992 was
also admitted. The same is at Exhibit 23. It shows
that the victim had been forwarded after treatment
at Kopargaon Municipal Dispensary and found the
patient to be semiconscious
with contusion having
sutured wound on temporal parietal region on the
left side. The C.T. Scan shows hematologic
contusion of left temporal parietal region
depressed fracture of left temporo parietal
region. The patient was transferred to Bombay
Hospital for further treatment.
5. The trial Court after considering the
oral and documentary evidence and the defence as
well as the admitted documents, referred above,
found both the accused guilty for offence under
Section 307 of I.P.C. read with Section 34 of
I.P.C. Although the injury caused to the
complainant Kankarbhai was also found to be
grievous injury caused by stick, which when used
as weapon of offence must be stated to be
dangerous weapon, the trial Court convicted the
accused persons under Section 325 of I.P.C. and
not under Section 326 of I.P.C. The State has not
filed appeal seeking conviction under higher
Section and thus, I will not enter into this
aspect.
6. The Appeal raises various grounds and it
has been argued by the learned counsel for the
Appellantsaccused
that although the victim
claimed that he had taken permission from the
irrigation channel incharge
to divert water to
his field, no such permission was proved on
record. The evidence shows that land for which the
water was tried to be taken, was not a land under
irrigation block. The learned counsel for the
Appellants initially argued that the defence of
the accused is not of self defence but it is only
of denial, but when the argument proceeded, at
another stage, the learned counsel submitted that
the circumstances proved on record, justified
right of private defence by the accused. It is
argued that the accused persons each of them gave
only one blow to the victim and there were no
successive blows and so offence under Section 307
of I.P.C. is not made out. The blow given by spade
was also from the blunt side. According to the
learned counsel, complainant PW2
Kankar and the
victim PW1
Rajendra were the aggressors in the
field of accused persons and they damaged the
water inlet of the accused persons. It is argued
that the examinationinchief
of the victim was
suo moto and closed for crossexamination,
but
subsequently the A.P.P. applied for further
examinationinchief
and according to learned
counsel, this should not have been allowed and he
stated that prejudice was caused to the accused.
The victim PW1
Rajendra referred to the accused
persons in his examinationinchief
with wrong
numbers. PW5
Laxman Shankar Gade, the father of
victim Rajendra accepted that one of his relative
was a Police Inspector. According to the learned
counsel, the accused persons had spade, does not
mean that they were armed. Referring to the
evidence of PW4
Panch Ashok regarding discovery
of stick and spade from accused No.2, it has been
argued that he admitted in crossexamination
that
when he was called, Police had told him that
Panchnama of seizure of weapons is to be done.
Thus, according to the learned counsel, the Police
already knew about the weapons. The complaint
given by the accused persons was not inquired into
and registered only as non cognizable case. There
was no sufficient motive for the assault. The
accused should be acquitted or if the conviction
is maintained, the accused should be given benefit
of Probation of Offenders Act.
7. Against this, learned A.P.P. submitted
that the evidence of complainant PW2
and victim
PW1
Rajendra as well as witness PW3
Bhagwan is
consistent regarding the incident of assault. The
accused persons left only after the victim fell
unconscious. The main incident taking place is not
denied. The presence of accused at the spot of
incident is also not disputed. The defence is not
specific. The medical evidence in respect of
complainant as well as the victim shows that they
had grievous injuries. The victim was unconscious
for long period and the evidence shows that even
now he is suffering due to the injuries. The
learned A.P.P. argued that the trial Court
properly discussed the evidence and rightly came
to the conclusions that the accused persons
deserve to be convicted under Section 307, 325
read with 34 of I.P.C. According to learned A.P.P.
while recording evidence of PW1
victim, as the
evidence was recorded suo moto, there was some
confusion with reference to the Number given to
accused persons which was due to the error of the
Court and the Court corrected it, can be seen from
the evidence Para 8. According to the A.P.P.,
there is no substance in the Appeal and the same
deserves to be rejected.
8. Before discussing the oral evidence, the
spot may be kept in view. The Spot Panchnama
Exhibit 36 is not disputed. The evidence of PW1
Rajendra in crossexamination
shows that near the
fields of the parties, there is Godavari Left
Canal which flows in SouthNorth
direction. The
Canal comes from Dhamori limits and irrigates
lands at village Maygaon. The first land to be
irrigated in Maygaon limits is of one Sudam Gade
and the last land in Dhamori Shivar is of one
Keshav Gade. The lands of the accused persons are
in between the land of victim Rajendra and land of
Sudam Gade. The Canal has a width of 56
ft. and
depth of 1½ ft. The "Baras" – outlets are on both
sides of the Canal and a person who has a turn to
take water, may open the outlet and get the water.
Some outlets are of cement pipe and some have been
created by putting stones and mud. The crossexamination
of PW1
further brings on record, that
when the outlet of upper side is closed, then the
water flows down to the fields on the down side
and Patkari i.e. Channel Incharge
decides who
should get the water in preference. The water is
supplied in two manners, called perennial block
and 8 months block. If the block is not allotted,
a Form No.7 has to be filled in for asking water
from the Canal.
. Thus, upstream there was land of Sudam
Gade and between the land of Sudam Gade and the
victim, there was land of the accused persons.
Naturally, the water had to flow from upstream
towards downstream lands.
9. Evidence of PW1
Rajendra (victim), PW2
Kankarbhai (complainant) and PW3
Bhagwan Kadam
shows that the incident took place in the evening
of the day of incident dated 15th March 1992. PW1
Rajendra deposed that Canal Inspector had
permitted him to draw the water for his crop after
the turn of Sudam Gade. He deposed that he had
obtained permission of Canal Inspector in that
regard. At about 8.15 p.m. PW1
Rajendra started
to go on his motorcycle to his land which was
situated at about 23
k.m.s from his residence. He
was accompanied by PW3
Bhagwanta Kadam. The
evidence shows that the complainant PW2
was
picked up on the way and they came near Nali
Phata. Evidence shows that it was verified that
Sudam Gade had taken his turn of water and after
verifying the same, the victim sent PW3
Bhagwan
Kadam by walk from the side of irrigation canal
and PW1
and PW2
proceeded on motorcycle towards
land of the victim and the motorcycle was left
near old Vasti (i.e. farm house) and PW1
asked
PW2
Kankarbhai to remove obstructions in the
channel so that there is no impediment in getting
water. In the process when they reached near the
field of accused persons, they found the accused
persons were standing on the bank of Canal. The
obstruction near the field of accused was to be
removed to get the water to the field of victim.
PW1
Rajendra (victim) told the accused persons
that Canal Inspector has permitted him to take the
water and so he be allowed to take the water.
Evidence shows that then the victim asked the
complainant to remove obstruction i.e. "Bare"
which would be closure of outlet. Evidence is that
at this time the accused persons objected,
claiming that it was their turn to take the water
as per order of the Canal Inspector. Evidence
shows that by such time PW2
Kankarbhai entered
the water channel to remove the obstruction and at
such time when PW2
was bending for the purpose,
accused No.2 Shashikant who had a stick, gave blow
near the waist of PW2.
As per evidence of PW1
Rajendra, he tried to convince the accused persons
but accused No.2 Shashikant gave him a blow of
stick on his head and when he tried to recover,
accused No.1 Suryakant hit spade by blunt side on
the head of the victim and then the victim fell
down unconscious on the ground. Evidence of the
witnesses shows that when accused No.2 hit stick
on the head of the victim, PW2
Kankarbhai tried
to snatch the stick from the hand of the accused
No.2 Shashikant, but at the same time accused No.1
Suryakant gave blow by spade to the head of the
victim.
10. PW's 1 to 3 corroborate each other with
regard to the evidence of main incident as above.
11. If the crossexamination
of PW1
victim
Rajendra is perused, it can be seen that the
presence of the accused at the time of incident is
not denied. It was suggested and PW1
Rajendra
accepted it to be true that when he asked the
accused to close their outlet, they refused. He
accepted that it was true that when accused
refused to close the outlet, PW1
directed
Kankarbhai to go ahead and close the outlet. It
was suggested to PW1
whether he did not feel that
prior to asking Kankarbhai to close the outlet, he
should go and report to the Canal Inspector. PW1
deposed that he felt so but he did not anticipate
the incident to take such a serious turn. PW1
admitted that there was verbal exchange and the
accused were saying that they would not close the
outlet and PW1
directed that outlet should be
closed. PW1
admitted that there was a Bara i.e.
outlet created in the width of the Canal at the
sides towards the land of the accused and unless
the Bara was dismantled, water would not have
flown to his field. Bara i.e. outlet was made of
mud and stones. PW1
denied that there was scuffle
with the accused No.1 or that he fell in the
scuffle on the rock and sustained injury.
12. Omission proved in the crossexamination
of PW1
is regarding his evidence that the blow
of spade given by accused No.1 fell "at the same
place" where the stick blow was given by accused
No.2. The omission is only regarding his evidence
that the blow was at the same place. However, the
evidence remains that both the hits were on the
head and regarding this fact, there is consistent
evidence of PW's 1 to 3. Thus, the omission is not
material.
13. In the crossexamination
of the PW2
Kankarbhai (complainant), also there are similar
suggestions. It was put to PW2
and he accepted
that it was true that accused No.1 Suryakant had
said at the time of incident that until he
completes irrigation of his land, he would not
allow the victim Rajendra to take the water. PW1
victim Rajendra as well as PW2
Kankarbhai denied
that at the time of incident victim Rajendra had
slapped the accused No.1 Suryakant. However, the
F.I.R. Exhibit 31 does show that it was reported
that at the time of incident after accused No.2
Shashikant gave stick blow to the hip of
complainant, victim Rajendra tried to make accused
No.2 understand and at that time accused No.1
Suryakant rushed towards victim Rajendra with
spade, at which time Rajendra gave slap to accused
No.1 Suryakant. Although these witnesses denied
this aspect, still even if it is to be said that
this is mentioned in the F.I.R. and so should be
considered, it would still show that when accused
No.1 Suryakant charged, victim in defence slapped
him. It would be no license for the accused
persons to cause such grievous injuries to the
victim as has been done in this matter.
14. The corroborative evidence of PW3
Bhagwan is hardly challenged in the crossexamination.
He deposed in the crossexamination
that the incident might have lasted 510
minutes
and as he was frightened, he did not intervene. He
accepted in crossexamination
that while accused
were beating, they did not shout, but after victim
fell on the ground, they shouted for help.
Suggestion was given to PW3
Bhagwan but he denied
that he had not seen the incident. He further
denied that he was deposing on the say of victim
Rajendra.
15. Looking to the above, the evidence of
PW's 1 to 3 regarding how the incident took place,
cannot be said to be shattered. There is no reason
why this evidence should not be accepted.
16. The argument that further examinationinchief
of PW1
was allowed on 16th December 1999 and
so prejudice was caused to the accused, has no
substance. The evidence of PW1
shows that his
examinationinchief
was recorded suo moto. The
orders below Exhibit 29 passed by the trial Court
show that both the sides had been protracting this
old matter in the trial Court for many years and
ultimately the Court had put the witness in Box
and let him depose suo moto. Although the
accused No.1 inperson
was called upon to crossexamine
the witness, on request of Advocate, time
was given and on the adjourned date further
examinationinchief
was allowed. By this itself,
it cannot be said that there was any prejudice to
the accused. Before further examinationinchief
was allowed, there had been no crossexamination
and I do not think that accused can claim
prejudice.
17. It has been argued that PW1
Rajendra
Gade admitted that the land for which he was
taking water on that night, was not a land under
irrigation block. I do not find that this helps
the accused in any manner, as the evidence of PW1
itself shows that if the Block is not allotted,
Form No.7 has to be filled in for asking water
from the Canal. The evidence of PW1
Rajendra is
that Canal Inspector had permitted him to draw
water for his crop after Sudam Gade has taken the
water. In the crossexamination
of PW1,
it does
not appear that it was denied that he had taken
permission from the Canal Inspector. What was
suggested and the witness denied is that the
victim had manipulated the Canal Inspector to get
the water. In any case, if there was dispute
regarding turn of taking water, it was no reason
to go to the extent of causing such grievous
injuries to PW1
and PW2,
as the medical
evidence, (hardly denied in the matter) shows.
18. The evidence of PW2
Kankarbhai shows
that after the victim fell down on the ground,
both the accused fled from the spot. His evidence
shows that one Sunil brought a bullock cart. The
F.I.R. mentions that Sunil Gade has his residence
in farm which is nearby the spot and when called
out he had come along with others and taken the
victim in bullock cart. The Spot Panchnama also
shows residence of this Sunil at about 1500 ft.
from the spot. PW2
complainant deposed that
although the victim was taken, he remained at the
lower Vasti. It appears that there was provision
of residence for him there. According to him, on
next day he remained in the house as he was not
feeling well. On Tuesday (incident took place on
Sunday) he went to upper Vasti and came to know
that the victim had been shifted to Nashik
Hospital and persons from the family of the victim
had accompanied him. According to him, he then
went to Kolpewadi Outpost and informed the Police
about the incident and his F.I.R. Exhibit 31 was
recorded. His evidence gives explanation that he
did not go to the Police Station earlier in belief
that father of victim must have already lodged
report to the Police. His evidence is that Police
then referred to him to Kopargaon Municipal
Hospital. Such explanation of the delay given by
PW2
does not appear to have been challenged in
the crossexamination.
The F.I.R. also gives
reason for the delay. Medical Evidence (Exhibit
19) supports this witness that he was not feeling
well as he suffered fracture in the incident.
. There is evidence of PW5
Laxman Gade,
the father of victim, which evidence shows that he
came to know about the incident of beating of
victim Rajendra by the accused persons. According
to him, he was told that he will have to shift the
victim by hiring a Jeep. According to him, he
found that when the victim was brought in bullock
cart he was unconscious and a scarf has been tied
on his head. According to him, witness Bhagwanta
told him about the incident. He shifted the victim
to Chas Hospital and from there victim was taken
to Kopargaon. At Kopargaon the medical
practitioner opined that the patient should be
immediately shifted to Nanji Hospital, Nashik.
Evidence of PW5
Laxman shows that he, his
brothers and his wife went to Nashik along with
victim. At Nashik, the brain specialist was not
available and so the victim was shifted to Bombay
in the night of 17th March 1992 and operation was
conducted. The evidence shows that victim was
admitted at Bombay Hospital for fifteen days and
then brought to Nashik and kept at Hospital of Dr.
Pathak for about three weeks. According to PW5
Laxman, victim gained consciousness after 810
days of the operation. In the crossexamination
of
PW5
Laxman, portion of his statement dated 14th
April 1992 is proved at Exhibit 51. The portion is
regarding the witness telling Police that victim
was taken to Kopargaon Government Hospital and at
that time Police Head Constable had come to
inquire and so he had felt that Police might have
filed a case. About this portion of his statement,
the witness stated that he could not say if he had
said so to the Police. I find that this is hardly
material. The further crossexamination
of PW5
Laxman shows that when he had taken the victim
from one hospital to another, he was not mentally
stable and he was bothered if or not his son would
survive. The evidence of PW5
accepting in crossexamination
that his brotherinlaw
"was" police
inspector is no reason to doubt the otherwise
reliable evidence available on record.
. The evidence on record, specially of PW7
A.S.I. Murlidhar shows that Police were tracking
the victim for recording his statement when he was
being shifted from one hospital to another but as
the victim was not in a condition to make
statement, they could not record so.
. Looking to all such evidence, the delay
in filing of the F.I.R. is duly explained. Looking
to the facts of the present matter, it cannot be
said that delay is fatal to prosecution. The trial
Court has discussed these aspects and also
considered the defence of the accused persons
where the incident, except the actual assault, is
hardly denied. The trial Court rightly found that
the first information report cannot be said to be
suffering from concoction.
19. The evidence of PW6
Dr. Gita Dattatraya
Parulekar who was working as Neuro Surgeon at
Bombay Hospital, shows that the victim was
admitted in the hospital on 17th March 1992 and had
been transferred from Nashik. She deposed that she
had seen the report received as well as the C.T.
Scan. The report showed extensive haemorrhagic
contusion of left fronto temporal region with
depressed fracture of left temporo parietal bone.
The patient was still in semiconscious
condition
and was responding to painful stimulie. Her
evidence shows that the patient was taken up for
surgery on 18th March 1992. It was found that there
was crack fracture going up to the base. There was
a sizable extra dural haemotoma i.e. it was a
haemotoma of large size which was evacuated. The
dura was torn which was closed with dura plasty.
Bone flap was removed in order to give maximum
decompression for odema i.e. brain swelling.
Treacheostimy was done for secreation. The
evidence of doctor shows that the injury was
severe as even the dura was found to have been
torn and had penetrated into the brain. The injury
would have been fatal if it had not been tackled
by specialist. She has proved certificate in this
regard at Exhibit 42. Her evidence is that the
injury is sufficient, in ordinary course of
nature, to cause death. The instrument of spade
was shown to her and she stated that the injury
was possible by such instrument. In the cross:::
examination she stated that Hemi paresis is also
possible on account of cerebral vaxullar stroke.
She deposed that because there was head injury,
they had diagnosed that Hemi peresis is on account
of the same. She admitted that such injury is also
possible in mechanical, accident or other
violences or self infliction. Regarding such
evidence of the witness, trial Court observed (in
Para 13) that such injuries may be possible in
mechanical accident or other violences but that
itself is not reason to believe that such injury
is not possible by assault. The trial Court
discussed the evidence to discard the defence of
accidental fall. The trial Court reasoned out that
if the person was to fall, he would try to save
his head though he may succeed or otherwise. It is
not a defence of self infliction or mechanical
accident. The trial Court is right in its
observation that if a person is about to fall, he
would try to save himself. In such situation,
there would be injuries to other parts of body
also like hands. There was no such injury on the
person of the victim. The injury was to the head
and there is reliable evidence of PW's 1 to 3 that
the same was caused due to the blows given by the
accused persons.
20. The evidence of complainant PW2
Kankarbhai shows that he was given blow by stick
on his hip. His medical certificate has been
admitted at Exhibit 19. he had contusion to lumbar
region 5 c.m. X 3 c.m. and tenderness was there
with restricted movements. The Xray
showed
fracture to L5
with dislocation of lumbosacral
joint leading to spondylitis. The injury was
classified as grievous injury. History given was
of beating by wooden stick. Thus, the complainant
suffered grievous injury at the hands of accused
No.2 Shashikant.
21. There is evidence of PW4
Panch Ashok
Bairagi and evidence of PW7
A.S.I. Murlidhar,
which shows that the accused No.2 Shashikant gave
statement to Police that he will produce the stick
and spade with reference to the offence. The
statement was recorded at Exhibit 34. Accused No.2
who was in custody, took the Police and Panchas in
Police Jeep by KolpewadiGautamnagar
road to
further proceed by Maygaon Devi Yewla
road to an
isolated place and from bushes showed the place
where a stick and spade were hidden. It was bamboo
stick of about 4 ft. and spade with wooden handle.
The spade had been welded for strength. These
instruments seized were identified by the
witnesses in the Court. The evidence was
questioned by the learned counsel for Appellantsaccused
by referring to the crossexamination
of
PW4
Ashok that he deposed in the crossexamination
that he resides about 6 k.m.s from the
Kolpewadi Outpost and when Police called him, they
had told him that they want to effect Panchnama of
seizure of weapons. From this, it is tried to
argue that Police already knew about the
instruments. I do not think that the evidence can
be read in the manner in which the learned counsel
for Appellants is trying to do. When from the
interrogation of accused in custody, Police can
make out that the accused is willing to disclose,
Police calls Panchas and further interrogation is
done in presence of Panchas. This by itself, does
not mean that Police already knows where the
instruments are. I do not find that discovery of
instruments given by the accused No.2 can be
discarded only because when the Police called
Pancha, they had told him that they want to effect
Panchnama about seizure of weapons. What would
ultimately be discovered, or not discovered cannot
be predicted.
22. The learned counsel for the Appellantsaccused
argued that the report given by the
accused persons was not inquired into. Evidence of
PW7
A.S.I. Murlidhar shows that accused No.1
Suryakant had, on 17th March 1992, given report
regarding the same incident but claimed that the
victim had slapped him and given him kick blow in
the stomach and had also beaten accused No.2
Shashikant by hand. The Police registered the
report of accused No.1 as non cognizable case. The
accused do not appear to have pursued their
grievance by filing any private complaint if the
Police did not take action.
23. The argument of the accused persons
acting in self defence has no substance. The
argument that PW1
and 2 committed criminal
trespass has no force. The incident occurred at
the place of common water channel. Even if the
complainant and victim went ahead to divert the
water, it would be no reason for the accused
persons to go to the extent of causing such
grievous injuries to the complainant and victim,
as can be seen in the present matter.
24. It is argued that only single blows are
attributed to the accused persons and it could not
be said that offence under Section 307 of I.P.C.
is made out. Trial Court discussed the evidence in
this regard in Para 16 of the Judgment and has
given elaborate reasons for holding that if the
victim would have expired, it would have been
offence under Section 302 of I.P.C. and had it not
been that by specialist treatment life of victim
was saved, he would have expired. The trial Court
came to the conclusion that offence under Section
307 of I.P.C. has been made out. The trial Court
also discussed that the accused persons were
acting in furtherance of common intention.
. Going through the evidence which is on
record, it is clear that accused No.2 Shashikant
first gave stick blow to the complainant when he
entered the water channel so as to divert the
water and caused grievous injury to the
complainant. Motive for incident is revealed in
course of incident and evidence shows that accused
acted in furtherance of common intention. When the
victim tried to intervene, severe blow was given
on the head of the victim by accused No.2. When
complainant tried to snatch the stick from accused
No.2 Shashikant, accused No.1 Suryakant gave
severe blow on head of the victim using the spade.
Both the injuries were inflicted on the head of
the victim with force, as is apparent from the
medical evidence available. Water is a sensitive
issue for the farmers and there is evidence of
PW1
victim Rajendra that the accused persons
were envious of their family. His evidence is that
as regards financial condition, the family of
victim has flourished and so accused were envious
of them. He claimed that he was Graduate in
Science (Botany). The argument that each of the
accused gave only single blow on the head and so
it should be held that there was no intention to
commit murder, is fallacious. The record shows
that the blows given were severe and on sensitive
part of the body. The medical evidence is that
injury was sufficient, in ordinary course of
nature, to cause death. When an accused gives
severe blow with dangerous weapon to sensitive
part of the body, even if the accused does not
follow up the same with further blows, that
conduct by itself is not enough to hold that he
did not have intention to kill. The accused may
not follow up the initial blow by further blows
for various reasons. After giving the first blow
on the vital part of the body, the accused may
feel that the same is enough to achieve the
intention he had to kill the person or the accused
may develop cold feet after having given the first
severe blow with intention to kill. Thus, merely
because after giving first blow the accused does
not follow it up with another blow, itself is not
sufficient to show that the accused had no
intention to kill when he gave the first blow. The
accused persons chose sensitive part of the head
and each of them gave severe blow on the head with
dangerous weapons like stick and spade and ran
away when the victim fell on the ground. Looking
to the medical evidence and facts of the matter, I
find that the trial Court rightly came to the
conclusion that offence under Section 307 of
I.P.C. is established. No interference is called
for with regard to finding of offence under
Section 325 of I.P.C., also. In the facts of the
case, benefit under the provisions of the
Probation of Offenders Act cannot be given to the
accused persons.
25. Before parting, it is necessary to refer
to a procedural aspect regarding which there was
error. I have already discussed that the victim
PW1
Rajendra recorded his examinationinchief
suo moto. In Para 2 of his evidence when the
incident was being referred, reference to accused
persons was recorded by the trial Court only by
Numbers without, atleast
at first place
clarifying name of the accused who was being
referred. Because of this error in procedure, at
subsequent stage, the trial Court itself put
questions to the victim for the purpose of
clarification. It was clarified that accused
Shashikant had beaten victim by stick and accused
Suryakant had beaten him by spade. The witness was
referred to earlier part of his evidence and he
deposed that in place of accused No.1 shown as
holding stick and accused No.2 shown as holding
spade, it must be read that accused No.2 was
holding stick and accused No.1 holding spade.
. Chapter VI, Para 23 of the Criminal
Manual reads as under:
"23. It is desirable in judicial
proceedings to prevent, as much as
possible, doubt as to the identity of the
person referred to therein. It frequently
happens that the same individual is known
by more names than one. Thus sometimes only
the surname, sometimes only the name of the
caste, or occupation or the village of the
individual is mentioned or he is spoken of
by a nickname, such as Bapu Saheb, Nana
Saheb or Bahau Saheb. Such variations in
description require explanation to render
them intelligible to an appellate Court. A
court of first instance should, therefore,
take care not only to ascertain, but to
make clear by evidence duly recorded, the
identity of any individual who is so
referred to under varying appellations and
if such an individual is an accused person,
his name and serial number according to the
chargesheet
should be cited in any passage
in which he is otherwise designated."
. It is clear that High Court has laid down
guidelines requiring reference to be made to
accused person by name as well as serial Number
according to the chargesheet,
in the proceedings.
Had the above guidelines been strictly followed,
the obvious discomfort to the Court could have
been avoided. In the Marathi version of the
evidence, it is clearly recorded that the error
was on the part of the Court. No specific
guidelines are required for trial Courts to
understand that judicial records need to be clear
and specific. Still, the High Court has in clear
terms prescribed guidance in this regard, as
mentioned above. It is expected that the trial
Courts should strictly follow the Manual.
26. For reasons discussed above, there is no
substance in this Appeal. The Appeal is dismissed.
Both the accused persons shall surrender to their
Bail Bonds and suffer the punishment imposed by
the trial Court.
[A.I.S. CHEEMA, J.]
Manual reads as under:
"23. It is desirable in judicial
proceedings to prevent, as much as
possible, doubt as to the identity of the
person referred to therein. It frequently
happens that the same individual is known
by more names than one. Thus sometimes only
the surname, sometimes only the name of the
caste, or occupation or the village of the
individual is mentioned or he is spoken of
by a nickname, such as Bapu Saheb, Nana
Saheb or Bahau Saheb. Such variations in
description require explanation to render
them intelligible to an appellate Court. A
court of first instance should, therefore,
take care not only to ascertain, but to
make clear by evidence duly recorded, the
identity of any individual who is so
referred to under varying appellations and
if such an individual is an accused person,
his name and serial number according to the
chargesheet
should be cited in any passage
in which he is otherwise designated."
It is clear that High Court has laid down
guidelines requiring reference to be made to
accused person by name as well as serial Number
according to the chargesheet,
in the proceedings.
Had the above guidelines been strictly followed,
the obvious discomfort to the Court could have
been avoided. In the Marathi version of the
evidence, it is clearly recorded that the error
was on the part of the Court. No specific
guidelines are required for trial Courts to
understand that judicial records need to be clear
and specific. Still, the High Court has in clear
terms prescribed guidance in this regard, as
mentioned above. It is expected that the trial
Courts should strictly follow the Manual.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.86 OF 2000
Suryakant s/o Chandrakant Gade @ Surya,
V
The State of Maharashtra,
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT : 28TH AUGUST, 2014.
Citation; 2015ALLMR(cri)602
1. Appellant No.1 Suryanakt Chandrakant Gade
and Appellant No.2 Shashikant Chandrakant Gade
(original Accused Nos.1 and 2 respectively,
hereafter referred as “accused No.1” and “accused
No.2”) were prosecuted before the Additional
Sessions Judge, Kopargaon in Sessions Case No.118
of 1993 for offence punishable under Section 307,
326 read with 34 of the Indian Penal Code, 1860
('I.P.C.' in brief). They have been convicted for
offence under Section 307 and 325, both read with
Section 34 of I.P.C. For offence under Section 307
of I.P.C. each of them has been sentenced to
suffer rigorous imprisonment for four years and
fine of Rs.5000/,
in default to suffer simple
imprisonment for one year, and for offence under
Section 325 of I.P.C., each of them has been
sentenced to suffer rigorous imprisonment for one
year and fine of Rs.2000/,
in default to suffer
simple imprisonment for four months. The
Substantive sentences are to run concurrently. The
trial Court directed the amount deposited by the
accused to be paid as compensation to the victim
Rajendra Laxman Gade. Thus, this Appeal.
2. The case of prosecution in short, is as
under:(
A) On 17th March, 1992 complainant Kankarbhai
Amirbhai Shaikh, resident of Maygaon Devi, TqKopargaon
filed First Information Report (“F.I.R.”
in brief) at Crime No.60 of 1992 under Section
326, 324 read with 34 of I.P.C., at 20.15 hours
with Police Station Kopargaon. He reported that he
was working since seven years with one Laxmanrao
Gade on the field at Maygaon Devi. The field has
facility of water from well as well as water
channel of irrigation. On 15th March 1992, a
Sunday, he was informed by Rajendra, son of Laxman
Gade @ Dada that they will be getting irrigation
water and thus after meals he went and waited near
"Vasti" i.e. farm house of the field. After little
while Rajendra Gade (hereafter referred as
“victim”) came along with labour Bhagwanta
Karbhari Kadam on motorcycle. All the three then
proceeded further on motorcycle towards field of
one Sudam Gade which is on the “Shiv” of “Nali”.
The supply of water of irrigation to the field of
Sudam was already complete and in order to divert
water to their field, they closed the “Bare” i.e.
outlet. Bhagwanta (Bhagwan Kadam – PW3)
was asked
to proceed towards the field which was downstream
and Rajendra Gade and complainant Kankar proceeded
on motorcycle towards farm house which was on the
lower side. After stopping the motorcycle there,
Rajendra Gade and complainant started proceeding
for closing "Bare" – outlet walking upstream. They
reached the field of Chandrakant Gade (father of
accused persons). At that place near the "Bare" –
outlet, which was leading water to their field,
the accused No.2 Shashikant and accused No.1
Suryakant were present. Accused No.2 Shashikant
had a stick and accused No.1 Suryakant had spade
with wooden handle. They were near the outlet from
where water was going in their field. At that
time, victim Rajendra asked complainant to close
the outlet which was there. At that time both the
accused objected and claimed that their "Bare" –
outlet should not be closed and they have to water
their field. At that time victim Rajendra stated
that Patkari (i.e. Channel Incharge)
had
permitted him to take the water and so they will
be taking water to their field, which is downstream.
The victim thus explained to the accused
persons and asked the complainant to close the
"Bare" – outlet. Complainant entered the water
channel to close the Bare – outlet. At that time
accused No.2 Shashikant gave a stick blow near the
hip of complainant. Because of this, victim
Rajendra started explaining to accused No.2
Shashikant. At that time accused No.1 Suryakant
charged with spade in his hand, towards the victim
and so victim Rajendra gave a slap to accused No.1
Suryakant. At that time, accused No.2 Shashikant
gave a blow by stick which he was holding, to the
head of victim Rajendra with force. Immediately
complainant tried to take away the stick of
accused No.2 Shashikant, at which time accused
No.1 Suryakant gave a severe blow on the head of
victim Rajendra by the blunt side of spade he was
holding in his hand. Victim Rajendra got injured
and fell on the ground and then both the accused
ran away with the instruments they had. The
incident was seen by Bhagwan Kadam (PW3)
also.
. The complainant called out to Sunil
Radhakishan, who had farm house nearby. He came
along with his brother Shantaram and father
Radhakishan as well as one Netaji Eknath. The
incident was told to them. A bullock cart was
brought and those persons as well as Bhagwan Kadam
took victim Rajendra in the bullock cart towards
residence of the owner. Complainant stayed at the
farm house. When the incident took place there was
moon light and the incident was clearly seen.
Similarly, both the accused reside at some
distance from the field of the owner in their
house built on the farm and are of daily
acquaintance, being related to the owner. Victim
Rajendra was taken to Kopargaon and from there to
Nashik, was learnt by the complainant. Complainant
felt that the owner would file report to Police
and so the complainant himself did not come to the
Police Station earlier.
(B) F.I.R. with the contents as above, was
received by A.S.I. Murlidhar Dhondiba Karale
(PW7).
The A.S.I. sent the complainant for
medical examination and took up the investigation.
Regarding the same incident, accused No.1
Suryakant also filed a complaint which was
registered as non cognizable case No.188 of 1992
( Exhibit 46). The A.S.I. PW7
Murlidhar recorded
Spot Panchnama. The station diary entry 76 of 1992
shows that the victim Rajendra had been taken to
the hospital at Kopargaon in the same night of
incident and the medical officer had sent
intimation to the Police which was received at
1.45 a.m. (Exhibit 15). A Police Station Entry
No.72 of 1992 of Kopargaon Police Station shows
that Police wanted to record statement of the
victim but the doctor found that the victim was
not in a position to give statement (Exhibit 15).
The victim being serious, was shifted to Nashik
and Police from Nashik also verified from Police
Station, Kopargaon whether any offence was
registered, as the victim had suffered serious
head injury. Station Diary Entry in this regard at
77 of 1992 dated 17th March 1992, was made at
12.15 hours at Kopargaon Police Station. The
victim was then shifted from Nashik to Bombay
Hospital at Mumbai, looking to the serious injury
he had to his head and was treated there.
(C). PW7
A.S.I. Murlidhar had visited the
victim when victim was at Nashik and had found him
to be unconscious. After the F.I.R. was
registered, accused No.1 Suryakant was arrested on
17th March 1992 (Exhibit 16) and accused No.2
Shashikant came to be arrested on 20th March 1992,
(Exhibit 17). After accused No.2 Shashikant was
arrested, he gave discovery of the spade and stick
used at the time of incident, vide Memorandum and
Panchnama (Exhibit 34 and 35), on 22nd March 1992.
The clothes of victim Rajendra were seized by
Police (vide admitted Panchnama Exhibit 21) on 14th
April 1992. The Police sent the seized clothes
having blood stains to the Chemical Analyzer.
Subsequently, chargesheet
came to be filed. The
offence was found to be Sessions triable and the
matter was committed to the Court of Sessions.
3. Charge was framed under Section 307, 326
read with 34 of I.P.C. against both the accused.
They pleaded not guilty. Their defence as is
appearing from the crossexamination
of the
prosecution witnesses, does not appear to be of
denial of incident taking place but according to
the accused persons, it was the complainant
Kankarbhai and victim Rajendra who had tried to
forcibly divert the water, although the accused
persons asked them not to do so, and there was
scuffle in which victim fell on rock of the "Bare"
and sustained injury. In statement under Section
313 of the Code of Criminal Procedure, 1973
(“Cr.P.C.” in brief), it is tried to say that due
to political reasons the accused persons have been
falsely implicated.
4. Prosecution brought on record evidence of
seven witnesses. There are certain documents,
genuineness of which was not denied and thus they
were exhibited in terms of Section 294 of Cr.P.C.
These documents include intimation dated 16th March
1992 from medical officer Kopargaon to P.S.I.
Kopargaon regarding admitting victim Rajendra in
hospital and the receipt of intimation at 1.45
hours on 16th March 1992. The same document has
endorsement by the doctor that the patient is not
able to give statement. Endorsement is of 2.00
a.m. of 16th March 1992. Arrest Panchnama of
accused No.1 Suryakant dated 17th March 1992 has
been admitted at Exhibit 16, which recorded that
there was no sign of any injury on his person. The
Spot Panchnama dated 18th March 1992 was admitted
at Exhibit 36. Arrest Panchnama of accused No.2
Shashikant dated 20th March 1992 was admitted and
is at Exhibit 17. He also did not have signs of
any fresh injury on his person. The injury
certificate of victim Rajendra from Kopargaon
Municipal Hospital dated 19th March 1992 was
admitted by accused and is at Exhibit 18. The
certificate recorded history of assault by spade
dated 15th March 1992 at 10.00 p.m. The patient was
mentioned to be semiconscious.
The injury noted
was “C.L.W. Parietal region to scalp, size 3 c.m.
X 2 c.m. X bony deep. Xray
of skull showed
fracture of parietal bone. The injury certificate
of complainant Kankarbhai was also admitted by the
accused and was marked Exhibit 19. The certificate
recorded history of assault by weapon stick. There
was a contusion to lumbar region, 5 c.m. X 3 c.m.
with tenderness and restricted movements. The Xray
showed fracture of L5
with dislocation of
lumbosacral joint leading to spondylitis.
Exhibit 20 is letter by Police to medical officer
at Nashik dated 16th March 1992, where doctor
endorsed that the patient was not in a condition
to give statement. This was at 10.15 a.m. of 16th
March 1992. This document has been admitted by the
accused. It appears that the victim Rajendra was
treated by Dr. Ujwala Pathak at Nashik and her
certificate was admitted by the accused at Exhibit
22. Medico Legal report of victim Rajendra from
Nagji Medical Hospital dated 16th March 1992 was
also admitted. The same is at Exhibit 23. It shows
that the victim had been forwarded after treatment
at Kopargaon Municipal Dispensary and found the
patient to be semiconscious
with contusion having
sutured wound on temporal parietal region on the
left side. The C.T. Scan shows hematologic
contusion of left temporal parietal region
depressed fracture of left temporo parietal
region. The patient was transferred to Bombay
Hospital for further treatment.
5. The trial Court after considering the
oral and documentary evidence and the defence as
well as the admitted documents, referred above,
found both the accused guilty for offence under
Section 307 of I.P.C. read with Section 34 of
I.P.C. Although the injury caused to the
complainant Kankarbhai was also found to be
grievous injury caused by stick, which when used
as weapon of offence must be stated to be
dangerous weapon, the trial Court convicted the
accused persons under Section 325 of I.P.C. and
not under Section 326 of I.P.C. The State has not
filed appeal seeking conviction under higher
Section and thus, I will not enter into this
aspect.
6. The Appeal raises various grounds and it
has been argued by the learned counsel for the
Appellantsaccused
that although the victim
claimed that he had taken permission from the
irrigation channel incharge
to divert water to
his field, no such permission was proved on
record. The evidence shows that land for which the
water was tried to be taken, was not a land under
irrigation block. The learned counsel for the
Appellants initially argued that the defence of
the accused is not of self defence but it is only
of denial, but when the argument proceeded, at
another stage, the learned counsel submitted that
the circumstances proved on record, justified
right of private defence by the accused. It is
argued that the accused persons each of them gave
only one blow to the victim and there were no
successive blows and so offence under Section 307
of I.P.C. is not made out. The blow given by spade
was also from the blunt side. According to the
learned counsel, complainant PW2
Kankar and the
victim PW1
Rajendra were the aggressors in the
field of accused persons and they damaged the
water inlet of the accused persons. It is argued
that the examinationinchief
of the victim was
suo moto and closed for crossexamination,
but
subsequently the A.P.P. applied for further
examinationinchief
and according to learned
counsel, this should not have been allowed and he
stated that prejudice was caused to the accused.
The victim PW1
Rajendra referred to the accused
persons in his examinationinchief
with wrong
numbers. PW5
Laxman Shankar Gade, the father of
victim Rajendra accepted that one of his relative
was a Police Inspector. According to the learned
counsel, the accused persons had spade, does not
mean that they were armed. Referring to the
evidence of PW4
Panch Ashok regarding discovery
of stick and spade from accused No.2, it has been
argued that he admitted in crossexamination
that
when he was called, Police had told him that
Panchnama of seizure of weapons is to be done.
Thus, according to the learned counsel, the Police
already knew about the weapons. The complaint
given by the accused persons was not inquired into
and registered only as non cognizable case. There
was no sufficient motive for the assault. The
accused should be acquitted or if the conviction
is maintained, the accused should be given benefit
of Probation of Offenders Act.
7. Against this, learned A.P.P. submitted
that the evidence of complainant PW2
and victim
PW1
Rajendra as well as witness PW3
Bhagwan is
consistent regarding the incident of assault. The
accused persons left only after the victim fell
unconscious. The main incident taking place is not
denied. The presence of accused at the spot of
incident is also not disputed. The defence is not
specific. The medical evidence in respect of
complainant as well as the victim shows that they
had grievous injuries. The victim was unconscious
for long period and the evidence shows that even
now he is suffering due to the injuries. The
learned A.P.P. argued that the trial Court
properly discussed the evidence and rightly came
to the conclusions that the accused persons
deserve to be convicted under Section 307, 325
read with 34 of I.P.C. According to learned A.P.P.
while recording evidence of PW1
victim, as the
evidence was recorded suo moto, there was some
confusion with reference to the Number given to
accused persons which was due to the error of the
Court and the Court corrected it, can be seen from
the evidence Para 8. According to the A.P.P.,
there is no substance in the Appeal and the same
deserves to be rejected.
8. Before discussing the oral evidence, the
spot may be kept in view. The Spot Panchnama
Exhibit 36 is not disputed. The evidence of PW1
Rajendra in crossexamination
shows that near the
fields of the parties, there is Godavari Left
Canal which flows in SouthNorth
direction. The
Canal comes from Dhamori limits and irrigates
lands at village Maygaon. The first land to be
irrigated in Maygaon limits is of one Sudam Gade
and the last land in Dhamori Shivar is of one
Keshav Gade. The lands of the accused persons are
in between the land of victim Rajendra and land of
Sudam Gade. The Canal has a width of 56
ft. and
depth of 1½ ft. The "Baras" – outlets are on both
sides of the Canal and a person who has a turn to
take water, may open the outlet and get the water.
Some outlets are of cement pipe and some have been
created by putting stones and mud. The crossexamination
of PW1
further brings on record, that
when the outlet of upper side is closed, then the
water flows down to the fields on the down side
and Patkari i.e. Channel Incharge
decides who
should get the water in preference. The water is
supplied in two manners, called perennial block
and 8 months block. If the block is not allotted,
a Form No.7 has to be filled in for asking water
from the Canal.
. Thus, upstream there was land of Sudam
Gade and between the land of Sudam Gade and the
victim, there was land of the accused persons.
Naturally, the water had to flow from upstream
towards downstream lands.
9. Evidence of PW1
Rajendra (victim), PW2
Kankarbhai (complainant) and PW3
Bhagwan Kadam
shows that the incident took place in the evening
of the day of incident dated 15th March 1992. PW1
Rajendra deposed that Canal Inspector had
permitted him to draw the water for his crop after
the turn of Sudam Gade. He deposed that he had
obtained permission of Canal Inspector in that
regard. At about 8.15 p.m. PW1
Rajendra started
to go on his motorcycle to his land which was
situated at about 23
k.m.s from his residence. He
was accompanied by PW3
Bhagwanta Kadam. The
evidence shows that the complainant PW2
was
picked up on the way and they came near Nali
Phata. Evidence shows that it was verified that
Sudam Gade had taken his turn of water and after
verifying the same, the victim sent PW3
Bhagwan
Kadam by walk from the side of irrigation canal
and PW1
and PW2
proceeded on motorcycle towards
land of the victim and the motorcycle was left
near old Vasti (i.e. farm house) and PW1
asked
PW2
Kankarbhai to remove obstructions in the
channel so that there is no impediment in getting
water. In the process when they reached near the
field of accused persons, they found the accused
persons were standing on the bank of Canal. The
obstruction near the field of accused was to be
removed to get the water to the field of victim.
PW1
Rajendra (victim) told the accused persons
that Canal Inspector has permitted him to take the
water and so he be allowed to take the water.
Evidence shows that then the victim asked the
complainant to remove obstruction i.e. "Bare"
which would be closure of outlet. Evidence is that
at this time the accused persons objected,
claiming that it was their turn to take the water
as per order of the Canal Inspector. Evidence
shows that by such time PW2
Kankarbhai entered
the water channel to remove the obstruction and at
such time when PW2
was bending for the purpose,
accused No.2 Shashikant who had a stick, gave blow
near the waist of PW2.
As per evidence of PW1
Rajendra, he tried to convince the accused persons
but accused No.2 Shashikant gave him a blow of
stick on his head and when he tried to recover,
accused No.1 Suryakant hit spade by blunt side on
the head of the victim and then the victim fell
down unconscious on the ground. Evidence of the
witnesses shows that when accused No.2 hit stick
on the head of the victim, PW2
Kankarbhai tried
to snatch the stick from the hand of the accused
No.2 Shashikant, but at the same time accused No.1
Suryakant gave blow by spade to the head of the
victim.
10. PW's 1 to 3 corroborate each other with
regard to the evidence of main incident as above.
11. If the crossexamination
of PW1
victim
Rajendra is perused, it can be seen that the
presence of the accused at the time of incident is
not denied. It was suggested and PW1
Rajendra
accepted it to be true that when he asked the
accused to close their outlet, they refused. He
accepted that it was true that when accused
refused to close the outlet, PW1
directed
Kankarbhai to go ahead and close the outlet. It
was suggested to PW1
whether he did not feel that
prior to asking Kankarbhai to close the outlet, he
should go and report to the Canal Inspector. PW1
deposed that he felt so but he did not anticipate
the incident to take such a serious turn. PW1
admitted that there was verbal exchange and the
accused were saying that they would not close the
outlet and PW1
directed that outlet should be
closed. PW1
admitted that there was a Bara i.e.
outlet created in the width of the Canal at the
sides towards the land of the accused and unless
the Bara was dismantled, water would not have
flown to his field. Bara i.e. outlet was made of
mud and stones. PW1
denied that there was scuffle
with the accused No.1 or that he fell in the
scuffle on the rock and sustained injury.
12. Omission proved in the crossexamination
of PW1
is regarding his evidence that the blow
of spade given by accused No.1 fell "at the same
place" where the stick blow was given by accused
No.2. The omission is only regarding his evidence
that the blow was at the same place. However, the
evidence remains that both the hits were on the
head and regarding this fact, there is consistent
evidence of PW's 1 to 3. Thus, the omission is not
material.
13. In the crossexamination
of the PW2
Kankarbhai (complainant), also there are similar
suggestions. It was put to PW2
and he accepted
that it was true that accused No.1 Suryakant had
said at the time of incident that until he
completes irrigation of his land, he would not
allow the victim Rajendra to take the water. PW1
victim Rajendra as well as PW2
Kankarbhai denied
that at the time of incident victim Rajendra had
slapped the accused No.1 Suryakant. However, the
F.I.R. Exhibit 31 does show that it was reported
that at the time of incident after accused No.2
Shashikant gave stick blow to the hip of
complainant, victim Rajendra tried to make accused
No.2 understand and at that time accused No.1
Suryakant rushed towards victim Rajendra with
spade, at which time Rajendra gave slap to accused
No.1 Suryakant. Although these witnesses denied
this aspect, still even if it is to be said that
this is mentioned in the F.I.R. and so should be
considered, it would still show that when accused
No.1 Suryakant charged, victim in defence slapped
him. It would be no license for the accused
persons to cause such grievous injuries to the
victim as has been done in this matter.
14. The corroborative evidence of PW3
Bhagwan is hardly challenged in the crossexamination.
He deposed in the crossexamination
that the incident might have lasted 510
minutes
and as he was frightened, he did not intervene. He
accepted in crossexamination
that while accused
were beating, they did not shout, but after victim
fell on the ground, they shouted for help.
Suggestion was given to PW3
Bhagwan but he denied
that he had not seen the incident. He further
denied that he was deposing on the say of victim
Rajendra.
15. Looking to the above, the evidence of
PW's 1 to 3 regarding how the incident took place,
cannot be said to be shattered. There is no reason
why this evidence should not be accepted.
16. The argument that further examinationinchief
of PW1
was allowed on 16th December 1999 and
so prejudice was caused to the accused, has no
substance. The evidence of PW1
shows that his
examinationinchief
was recorded suo moto. The
orders below Exhibit 29 passed by the trial Court
show that both the sides had been protracting this
old matter in the trial Court for many years and
ultimately the Court had put the witness in Box
and let him depose suo moto. Although the
accused No.1 inperson
was called upon to crossexamine
the witness, on request of Advocate, time
was given and on the adjourned date further
examinationinchief
was allowed. By this itself,
it cannot be said that there was any prejudice to
the accused. Before further examinationinchief
was allowed, there had been no crossexamination
and I do not think that accused can claim
prejudice.
17. It has been argued that PW1
Rajendra
Gade admitted that the land for which he was
taking water on that night, was not a land under
irrigation block. I do not find that this helps
the accused in any manner, as the evidence of PW1
itself shows that if the Block is not allotted,
Form No.7 has to be filled in for asking water
from the Canal. The evidence of PW1
Rajendra is
that Canal Inspector had permitted him to draw
water for his crop after Sudam Gade has taken the
water. In the crossexamination
of PW1,
it does
not appear that it was denied that he had taken
permission from the Canal Inspector. What was
suggested and the witness denied is that the
victim had manipulated the Canal Inspector to get
the water. In any case, if there was dispute
regarding turn of taking water, it was no reason
to go to the extent of causing such grievous
injuries to PW1
and PW2,
as the medical
evidence, (hardly denied in the matter) shows.
18. The evidence of PW2
Kankarbhai shows
that after the victim fell down on the ground,
both the accused fled from the spot. His evidence
shows that one Sunil brought a bullock cart. The
F.I.R. mentions that Sunil Gade has his residence
in farm which is nearby the spot and when called
out he had come along with others and taken the
victim in bullock cart. The Spot Panchnama also
shows residence of this Sunil at about 1500 ft.
from the spot. PW2
complainant deposed that
although the victim was taken, he remained at the
lower Vasti. It appears that there was provision
of residence for him there. According to him, on
next day he remained in the house as he was not
feeling well. On Tuesday (incident took place on
Sunday) he went to upper Vasti and came to know
that the victim had been shifted to Nashik
Hospital and persons from the family of the victim
had accompanied him. According to him, he then
went to Kolpewadi Outpost and informed the Police
about the incident and his F.I.R. Exhibit 31 was
recorded. His evidence gives explanation that he
did not go to the Police Station earlier in belief
that father of victim must have already lodged
report to the Police. His evidence is that Police
then referred to him to Kopargaon Municipal
Hospital. Such explanation of the delay given by
PW2
does not appear to have been challenged in
the crossexamination.
The F.I.R. also gives
reason for the delay. Medical Evidence (Exhibit
19) supports this witness that he was not feeling
well as he suffered fracture in the incident.
. There is evidence of PW5
Laxman Gade,
the father of victim, which evidence shows that he
came to know about the incident of beating of
victim Rajendra by the accused persons. According
to him, he was told that he will have to shift the
victim by hiring a Jeep. According to him, he
found that when the victim was brought in bullock
cart he was unconscious and a scarf has been tied
on his head. According to him, witness Bhagwanta
told him about the incident. He shifted the victim
to Chas Hospital and from there victim was taken
to Kopargaon. At Kopargaon the medical
practitioner opined that the patient should be
immediately shifted to Nanji Hospital, Nashik.
Evidence of PW5
Laxman shows that he, his
brothers and his wife went to Nashik along with
victim. At Nashik, the brain specialist was not
available and so the victim was shifted to Bombay
in the night of 17th March 1992 and operation was
conducted. The evidence shows that victim was
admitted at Bombay Hospital for fifteen days and
then brought to Nashik and kept at Hospital of Dr.
Pathak for about three weeks. According to PW5
Laxman, victim gained consciousness after 810
days of the operation. In the crossexamination
of
PW5
Laxman, portion of his statement dated 14th
April 1992 is proved at Exhibit 51. The portion is
regarding the witness telling Police that victim
was taken to Kopargaon Government Hospital and at
that time Police Head Constable had come to
inquire and so he had felt that Police might have
filed a case. About this portion of his statement,
the witness stated that he could not say if he had
said so to the Police. I find that this is hardly
material. The further crossexamination
of PW5
Laxman shows that when he had taken the victim
from one hospital to another, he was not mentally
stable and he was bothered if or not his son would
survive. The evidence of PW5
accepting in crossexamination
that his brotherinlaw
"was" police
inspector is no reason to doubt the otherwise
reliable evidence available on record.
. The evidence on record, specially of PW7
A.S.I. Murlidhar shows that Police were tracking
the victim for recording his statement when he was
being shifted from one hospital to another but as
the victim was not in a condition to make
statement, they could not record so.
. Looking to all such evidence, the delay
in filing of the F.I.R. is duly explained. Looking
to the facts of the present matter, it cannot be
said that delay is fatal to prosecution. The trial
Court has discussed these aspects and also
considered the defence of the accused persons
where the incident, except the actual assault, is
hardly denied. The trial Court rightly found that
the first information report cannot be said to be
suffering from concoction.
19. The evidence of PW6
Dr. Gita Dattatraya
Parulekar who was working as Neuro Surgeon at
Bombay Hospital, shows that the victim was
admitted in the hospital on 17th March 1992 and had
been transferred from Nashik. She deposed that she
had seen the report received as well as the C.T.
Scan. The report showed extensive haemorrhagic
contusion of left fronto temporal region with
depressed fracture of left temporo parietal bone.
The patient was still in semiconscious
condition
and was responding to painful stimulie. Her
evidence shows that the patient was taken up for
surgery on 18th March 1992. It was found that there
was crack fracture going up to the base. There was
a sizable extra dural haemotoma i.e. it was a
haemotoma of large size which was evacuated. The
dura was torn which was closed with dura plasty.
Bone flap was removed in order to give maximum
decompression for odema i.e. brain swelling.
Treacheostimy was done for secreation. The
evidence of doctor shows that the injury was
severe as even the dura was found to have been
torn and had penetrated into the brain. The injury
would have been fatal if it had not been tackled
by specialist. She has proved certificate in this
regard at Exhibit 42. Her evidence is that the
injury is sufficient, in ordinary course of
nature, to cause death. The instrument of spade
was shown to her and she stated that the injury
was possible by such instrument. In the cross:::
examination she stated that Hemi paresis is also
possible on account of cerebral vaxullar stroke.
She deposed that because there was head injury,
they had diagnosed that Hemi peresis is on account
of the same. She admitted that such injury is also
possible in mechanical, accident or other
violences or self infliction. Regarding such
evidence of the witness, trial Court observed (in
Para 13) that such injuries may be possible in
mechanical accident or other violences but that
itself is not reason to believe that such injury
is not possible by assault. The trial Court
discussed the evidence to discard the defence of
accidental fall. The trial Court reasoned out that
if the person was to fall, he would try to save
his head though he may succeed or otherwise. It is
not a defence of self infliction or mechanical
accident. The trial Court is right in its
observation that if a person is about to fall, he
would try to save himself. In such situation,
there would be injuries to other parts of body
also like hands. There was no such injury on the
person of the victim. The injury was to the head
and there is reliable evidence of PW's 1 to 3 that
the same was caused due to the blows given by the
accused persons.
20. The evidence of complainant PW2
Kankarbhai shows that he was given blow by stick
on his hip. His medical certificate has been
admitted at Exhibit 19. he had contusion to lumbar
region 5 c.m. X 3 c.m. and tenderness was there
with restricted movements. The Xray
showed
fracture to L5
with dislocation of lumbosacral
joint leading to spondylitis. The injury was
classified as grievous injury. History given was
of beating by wooden stick. Thus, the complainant
suffered grievous injury at the hands of accused
No.2 Shashikant.
21. There is evidence of PW4
Panch Ashok
Bairagi and evidence of PW7
A.S.I. Murlidhar,
which shows that the accused No.2 Shashikant gave
statement to Police that he will produce the stick
and spade with reference to the offence. The
statement was recorded at Exhibit 34. Accused No.2
who was in custody, took the Police and Panchas in
Police Jeep by KolpewadiGautamnagar
road to
further proceed by Maygaon Devi Yewla
road to an
isolated place and from bushes showed the place
where a stick and spade were hidden. It was bamboo
stick of about 4 ft. and spade with wooden handle.
The spade had been welded for strength. These
instruments seized were identified by the
witnesses in the Court. The evidence was
questioned by the learned counsel for Appellantsaccused
by referring to the crossexamination
of
PW4
Ashok that he deposed in the crossexamination
that he resides about 6 k.m.s from the
Kolpewadi Outpost and when Police called him, they
had told him that they want to effect Panchnama of
seizure of weapons. From this, it is tried to
argue that Police already knew about the
instruments. I do not think that the evidence can
be read in the manner in which the learned counsel
for Appellants is trying to do. When from the
interrogation of accused in custody, Police can
make out that the accused is willing to disclose,
Police calls Panchas and further interrogation is
done in presence of Panchas. This by itself, does
not mean that Police already knows where the
instruments are. I do not find that discovery of
instruments given by the accused No.2 can be
discarded only because when the Police called
Pancha, they had told him that they want to effect
Panchnama about seizure of weapons. What would
ultimately be discovered, or not discovered cannot
be predicted.
22. The learned counsel for the Appellantsaccused
argued that the report given by the
accused persons was not inquired into. Evidence of
PW7
A.S.I. Murlidhar shows that accused No.1
Suryakant had, on 17th March 1992, given report
regarding the same incident but claimed that the
victim had slapped him and given him kick blow in
the stomach and had also beaten accused No.2
Shashikant by hand. The Police registered the
report of accused No.1 as non cognizable case. The
accused do not appear to have pursued their
grievance by filing any private complaint if the
Police did not take action.
23. The argument of the accused persons
acting in self defence has no substance. The
argument that PW1
and 2 committed criminal
trespass has no force. The incident occurred at
the place of common water channel. Even if the
complainant and victim went ahead to divert the
water, it would be no reason for the accused
persons to go to the extent of causing such
grievous injuries to the complainant and victim,
as can be seen in the present matter.
24. It is argued that only single blows are
attributed to the accused persons and it could not
be said that offence under Section 307 of I.P.C.
is made out. Trial Court discussed the evidence in
this regard in Para 16 of the Judgment and has
given elaborate reasons for holding that if the
victim would have expired, it would have been
offence under Section 302 of I.P.C. and had it not
been that by specialist treatment life of victim
was saved, he would have expired. The trial Court
came to the conclusion that offence under Section
307 of I.P.C. has been made out. The trial Court
also discussed that the accused persons were
acting in furtherance of common intention.
. Going through the evidence which is on
record, it is clear that accused No.2 Shashikant
first gave stick blow to the complainant when he
entered the water channel so as to divert the
water and caused grievous injury to the
complainant. Motive for incident is revealed in
course of incident and evidence shows that accused
acted in furtherance of common intention. When the
victim tried to intervene, severe blow was given
on the head of the victim by accused No.2. When
complainant tried to snatch the stick from accused
No.2 Shashikant, accused No.1 Suryakant gave
severe blow on head of the victim using the spade.
Both the injuries were inflicted on the head of
the victim with force, as is apparent from the
medical evidence available. Water is a sensitive
issue for the farmers and there is evidence of
PW1
victim Rajendra that the accused persons
were envious of their family. His evidence is that
as regards financial condition, the family of
victim has flourished and so accused were envious
of them. He claimed that he was Graduate in
Science (Botany). The argument that each of the
accused gave only single blow on the head and so
it should be held that there was no intention to
commit murder, is fallacious. The record shows
that the blows given were severe and on sensitive
part of the body. The medical evidence is that
injury was sufficient, in ordinary course of
nature, to cause death. When an accused gives
severe blow with dangerous weapon to sensitive
part of the body, even if the accused does not
follow up the same with further blows, that
conduct by itself is not enough to hold that he
did not have intention to kill. The accused may
not follow up the initial blow by further blows
for various reasons. After giving the first blow
on the vital part of the body, the accused may
feel that the same is enough to achieve the
intention he had to kill the person or the accused
may develop cold feet after having given the first
severe blow with intention to kill. Thus, merely
because after giving first blow the accused does
not follow it up with another blow, itself is not
sufficient to show that the accused had no
intention to kill when he gave the first blow. The
accused persons chose sensitive part of the head
and each of them gave severe blow on the head with
dangerous weapons like stick and spade and ran
away when the victim fell on the ground. Looking
to the medical evidence and facts of the matter, I
find that the trial Court rightly came to the
conclusion that offence under Section 307 of
I.P.C. is established. No interference is called
for with regard to finding of offence under
Section 325 of I.P.C., also. In the facts of the
case, benefit under the provisions of the
Probation of Offenders Act cannot be given to the
accused persons.
25. Before parting, it is necessary to refer
to a procedural aspect regarding which there was
error. I have already discussed that the victim
PW1
Rajendra recorded his examinationinchief
suo moto. In Para 2 of his evidence when the
incident was being referred, reference to accused
persons was recorded by the trial Court only by
Numbers without, atleast
at first place
clarifying name of the accused who was being
referred. Because of this error in procedure, at
subsequent stage, the trial Court itself put
questions to the victim for the purpose of
clarification. It was clarified that accused
Shashikant had beaten victim by stick and accused
Suryakant had beaten him by spade. The witness was
referred to earlier part of his evidence and he
deposed that in place of accused No.1 shown as
holding stick and accused No.2 shown as holding
spade, it must be read that accused No.2 was
holding stick and accused No.1 holding spade.
. Chapter VI, Para 23 of the Criminal
Manual reads as under:
"23. It is desirable in judicial
proceedings to prevent, as much as
possible, doubt as to the identity of the
person referred to therein. It frequently
happens that the same individual is known
by more names than one. Thus sometimes only
the surname, sometimes only the name of the
caste, or occupation or the village of the
individual is mentioned or he is spoken of
by a nickname, such as Bapu Saheb, Nana
Saheb or Bahau Saheb. Such variations in
description require explanation to render
them intelligible to an appellate Court. A
court of first instance should, therefore,
take care not only to ascertain, but to
make clear by evidence duly recorded, the
identity of any individual who is so
referred to under varying appellations and
if such an individual is an accused person,
his name and serial number according to the
chargesheet
should be cited in any passage
in which he is otherwise designated."
. It is clear that High Court has laid down
guidelines requiring reference to be made to
accused person by name as well as serial Number
according to the chargesheet,
in the proceedings.
Had the above guidelines been strictly followed,
the obvious discomfort to the Court could have
been avoided. In the Marathi version of the
evidence, it is clearly recorded that the error
was on the part of the Court. No specific
guidelines are required for trial Courts to
understand that judicial records need to be clear
and specific. Still, the High Court has in clear
terms prescribed guidance in this regard, as
mentioned above. It is expected that the trial
Courts should strictly follow the Manual.
26. For reasons discussed above, there is no
substance in this Appeal. The Appeal is dismissed.
Both the accused persons shall surrender to their
Bail Bonds and suffer the punishment imposed by
the trial Court.
[A.I.S. CHEEMA, J.]
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