HIRAJI KATHALYA GAVIT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Petitioner came to be convicted of the offence punishable under section 325 of the Indian Penal Code and was sentenced to suffer RI for six months and to pay a find of Rs. 300/-, in default of fine, to suffer RI for one month, by the order dated-9-5-1995 passed by the learned Judicial Magistrate, First Class, Navapur. The petitioner preferred an appeal, being Criminal Appeal No. 37-1995. The appeal was dismissed by the learned Addl. Sessions Judge, Nandurbar by his order dated-28-11-1997. Thus, petitioner is now challenging these orders on the ground that the findings recorded by the lower Courts are not in conformity with the evidence on record.

(2.) The facts, in nutshell, are - Complainant Jalamsingh, his neighbour Dharamdas, petitioner Hiraji and his nephew Kashiram are natives of Sulipada (Zamanzira ). THEre is a tribal custom to worship "lord Hanuman" on the auspicious occasion of "dussera". For this purpose contribution of Rs. 1/- is made by the villagers. On 6th October, 1992 villages had gathered at the temple. THE petitioner was collecting contribution from the villagers. Some of them were not in position to make the payment. THErefore, complainant-Jalamsingh asked the petitioner not to humiliate them. This enraged the petitioner and there was exchange of hot words between them. On the same day, while complainant and Dharamdas were returning from the village streamlet, after taking bath, and were passing over the house of the petitioner, the petitioner came out from the house with an axe and dealt a blow on the on the left shoulder of complainant. When Dharamdas went to him rescue, the petitioner dealt a blow on him cutting his right index finger at the middle phalangeal joint; the finger came to be amputed subsequently. In response to cries of the victims, neighbours Omkar and brothers of complainant came to the scene of occurrence and intervened. Victims were immediately shifted to Rural Hospital, at Navapur where they were examined by Dr. Vasave (PW6 ). After receiving treatment, complainant lodged FIR (Exh. 15 ). On the basis of FIR, an offence came to be registered. On the conclusion of the investigation charge-sheet came to be filed.

(3.) At the outset, Shri. C. R. Desphande, learned counsel for petitioner made it clear that the judgments of Courts below are challenged only on the ground of appreciation of evidence since the same are not in conformity with the evidence on record. The findings recorded by Courts below are, therefore, perverse and liable to be set aside. No legal infirmity or other glaring defect is referred to by the learned counsel. For the purpose of substantiating his contention, learned counsel has taken the Court almost through the entire record. According to him, there are improvements and omissions in the testimony of complainant Jalamsingh and injured Dharamdas. He has referred to these inconsistencies. It is also pointed out that independent witness Omkar is a distant relative of complainant. According to him, in this view of the matter, no reliance should have been placed on the testimony of these witnesses. It is further submitted that Panchnama in respect of the scene of occurrence is also not proved as one of the Panchas has turned hostile. According to learned counsel, appreciation of evidence by the lower Courts is perverse, therefore, order of conviction and sentence passed by the lower Courts deserves to be quashed and set aside.