10 Jun 2121
Case : Bhagwan Narayan Gaikwad and Ors. v. The State of Maharashtra and Ors. Criminal Appeal No. 136 of 1996
Court : Bombay High Court
Bench : Justice Sadhana S. Jadhav and Justice N. R. Borkar
Decided on : 10 Jun 2121
Sections 147, 148, 307, 326 read with 149 of the Indian Penal Code, 1860
Section 135 of the Bombay Police Act, 1951
Section 32 of the Indian Evidence Act, 1872
Section 357 of Code of Criminal Procedure, 1973
Brief Facts & Procedure History
1. The relevant seminal facts are that on 13.12.1993, Subhash Yadavrao Patil was taken to a primary health centre in an injured condition. There was a brutal assault upon his right leg below the knee where he was admitted to the hospital by his nephew, Ramesh Gaikwad. Since he was seriously injured his statement was purportedly recorded under section 32 of the Indian Evidence Act, 1872
2. He had stated before the police that on 13.12.1993, Bhagwan Gaikwad, Appa Maruti Patil, Mahadeo Gaikwad and Popat Sitaram Gaikwad had mounted an assault on him. After the assault, Haibat Gaikwad, Mahavir Gaikwad, his brother Anna Gaikwad, Lahu Gaikwad, Bapu Patil and others had also assaulted him due to the previous enmity between them. Upon hearing him, his nephew took him to the police station and then to the hospital. Based on the said statement, Crime No. 23 of 1993 was registered at Tembhurni Police Station for offences punishable under sections 147, 148, 149, 307 and 326 of the Indian Penal Code, 1860. During the course of the treatment, his right forearm and right leg had to be amputated.
3. The Appellants in Criminal Appeal No. 136 of 1996 have been convicted by the learned IIIrd Additional Sessions Judge in Sessions Case No. 122 of 1996 for the offences punishable under sections 147, 148 and 326 read with 149 of Indian Penal Code, 1860 and under section 135 of the Bombay Police Act, 1951 and they are sentenced vide judgment and order dated 26.2.1996. Hence, the Appellants preferred Criminal Appeal No. 136 of 1996 where the substantive sentence of all the appellants was suspended by the Court by the order dated 18.3.1996. The appeal is abated against Respondent Nos. 3, 4, 10 and 12. The State had filed the appeal challenging the disproportionate sentence awarded to the accused and hence the Criminal Appeal no. 674 of 1996 is filed by the State for enhancement of sentence.
The Issue of the Case
Whether the accused would be convicted in Criminal Appeal No. 136 of 1996 and Criminal Appeal No. 674 of 1996?
The Observations of the Court
The Honourable Bombay High Court observed the following:
1. Witnessed the testimony of the victim and opined that the victim is genuine and trustworthy as he could identify the accused. Therefore the submission that it was not possible for the victim to identify the accused is futile.
2. Observed the brutal injuries sustained by the victim where Prosecution Witness No. 22, Chandrakant Jadhav had immediately arranged for recording his dying declaration by a Special Executive Magistrate and the intention to kill the victim was apparent on the face of the record.
3. Took cognizance of the fact that the allegations of assault causing amputation is attributed only to accused nos. 1, 3, 4, 10 and 12 and since there is no material evidence to substantiate the allegations against the original accused nos. 2, 5, 6, 7, 8, 9 and 11, they deserve to be acquitted.
4. By referring to the case of State of Madhya Pradesh v. Kashiram and Ors, (2009) 2 pages 26, the Court opined that the accused deserves conviction under Section 307 of Indian Penal Code, 1860 as the doctors have stated that in the absence of immediate medical intervention the injuries were sufficient in the ordinary course of nature to cause death. But the prosecution has not challenged the acquittal under Section 307 of the Indian Penal Code, 1860
The Decision held by the Court
1. The Honourable Bombay High Court partly allowed Criminal Appeal No. 136 of 1996 convicting Appellant No. 1 for the offence punishable under Section 326 of the Indian Penal Code, 1860 and dismissed the Criminal Appeal No. 674 of 1996. It further sentenced Appellant No. 1 to suffer rigorous imprisonment for five years with a fine of Rs. 10,000/- and compensation under Section 357 of Code of Criminal Procedure, 1973 of Rs. 2,00,000/- as monetary compensation to the victim.
2. It further opined that the appeal of Appellants (Original accused) Nos. 2, 5, 6, 7, 8, 9 and 11 stands allowed thereby acquitting them of all charges levelled against them.