SHIVSHANKAR TULSIRAM PANDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE applicants have preferred this revision challenging the judgment and order passed by Judicial Magistrate, First Class, Ner in Criminal Case No. 90/1990 dated-26.6.1995 and judgment and order passed on18.11.1999 by the Third Additional Sessions Judge, Yavatmal in Criminal Appeal No. 30/1995 wherein they are convicted for offence under section324 read with section34 of Indian Penal Code and sentenced to suffer R. I. for 4 months and to pay fine of Rs. 500/- each and they were to suffer further simple imprisonment for one month each in default of fine.

(2.) AS per the prosecution case the incident which gave rise to this prosecution against the applicant took place on26.6.1990 in front of the house of complainant - Gajanan Shriram Raut in the evening at about6. 30 P. M. The complainant - Gajanan on that day while proceeding to his field by the way which passes through the land of his brother - Suresh and some 2 1/2 acres of agricultural land out of the land allotted to the share of Suresh was sold to the applicant no.3 - Tulshiram, noticed that some thorny obstruction was created on the way. However, he proceeded by the said way after removing that obstruction. In the evening at about6. 00 P. M. he was on his way back to his house. Applicant Tulshiram had altercations with him. After he reached home, applicant no.1 - Shiv Shankar, his brother Rahul (applicant no.2), Tulshiram - applicant no.3 and Vijay applicant no.4 came to his house and when he was in front of his house they all started quarreling with him. They asked him as to how he used the way by removing the thorny bushes. All the applicants were armed with sticks and they started beating him. His sister-in-law Pushpa and his sister Devka and Dnyaneshwari as also his mother Smt. Saraswati rushed to rescue him. But the applicants did not leave Gajanan. They also started beating these ladies who had come to rescue Gajanan. Gajanan sustained injuries on his head, left shoulder and right leg. His sister-in-law Pushpa had sustained injury on her left leg and back, while his sister Devka sustained injury on her head and his other sister Dnyaneshwari sustained injury on her right toe and his mother Saraswati had sustained injury on her forehead, due to assault by the applicants with sticks. All the accused after beating Gajanan and his family members fled away from the spot. Complainant went to Police Station, Ner and lodged report, on the basis of which offence was registered vide crime no.127/1990 against the applicants under sections 337, 324 read with section34 I. P. C. The complainant - Gajanan and the other members of his family who were injured were referred for examination to Primary Health Center, Ner. The Medical Officer, Dr. Puri examined them and issued medicolegal certificates. Police Head Constable Hakim Khan who was attached to the Police Station Ner conducted investigation in the matter. He visited the place of occurrence and prepared spot panchanama in the presence of panch witnesses - Shri. Vasantrao Chavhan and Vishnu Raut has pointed out that by witness - Pralhad, as pointed out by witness Pralhad Tale. All the sticks which were used by the applicants came to be seized in presence of the panch witnesses from the applicant under the seizure memos.

(3.) MR. Anjan De, learned counsel appearing for the applicants submitted that the courts below utterly failed to assess and appreciate the evidence led by the prosecution as also the evidence of defence witness - Panditrao Gawande which has resulted into grave illegality. Therefore, the findings recorded by the courts below in the judgment are perverse. Therefore, the findings recorded by the prosecution was improbable, unnatural and not worthy of credit and to place implicit reliance on. The evidence of the witnesses who claimed to be eye-witnesses to the incident was inconsistent on material particulars. The courts below lost sight of the fact that the witnesses who gave evidence on the factum of incident that took place were interested witnesses and closely related to the complainant - Gajanan. The courts below have not borne in mind caution to scrutinize the evidence of witnesses in such state of affairs and also in the background of a long-standing enmity with the circumspection and due care. The courts below ignored the fact that the evidence on record was totally contradictory to the narration in the first information report. The learned counsel submitted that the seizure of the sticks is not properly proved in the sense no memorandum was recorded about the statement made by each of the applicants by the Investigating Officer when sticks have been seized at the instance of the applicants on being produced by them, when they were arrested. That apart there is no evidence identifying the sticks seized as the weapon of assault used by the applicants. If that is so, then mere proof of injuries sustained by the complainant and injured witnesses by itself will not be sufficient to hold that the applicants have committed offence under section324 I. P. C. The learned counsel submitted with emphasis that to make out offence under section324 of I. P. C. it is necessary to establish that the instrument which is used as weapon of assault was likely to cause death. Therefore, identification of the sticks which are seized has to be established on evidence for holding that the same sticks have been used by the applicants as weapons of assault.