apeal 4.03 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 4 OF 2003
1. Shriram S/o Kisan Khobragade,
Aged about 24 years,
2. Tulsiram S/o Kisan Khobragade,
Aged about 25 years,
Both Agriculturists,
R/o Shivnala,Tahsil-Pauni,
District-Bhandara ..... APPELLANTS
...V E R S U S...
State of Maharashtra,
Through Police Station Officer,
Police Station Pauni,
District-Bhandara ...RESPONDENT
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Shri Abhay Sambre, Advocate for appellants.
Shri R.S.Nayak,A.P.P. for State-respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :-AUGUST 1,2017 ORAL JUDGMENT The present appeal is directed against the judgment and order of conviction passed by learned Additional Sessions Judge,Bhandara dated 10/12/2002 in S.T.No.104/2000. 2] By the impugned judgment and order of conviction the appellants are convicted for the offence punishable under Section ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:29:23 ::: apeal 4.03 2 326 r/w Section 34 of the Indian Penal Code and they are directed to suffer R.I. for two years and to pay fine of Rs. 200/- and in default of payment of fine amount further to suffer R.I. for 15 days.
3] The appellants were charged for the offence punishable under Section 307 r/w Section 34 of the Indian Penal Code by learned Additional Sessions Judge,Bhandara. According to charge, on 24/4/2000 , between 8.00 to 8.30 a.m. at village Shivnala, the appellants in furtherance of their common intention assaulted on Sakharam S/o Fuktu Dhengre(PW2)by means of axe and stick causing injuries with an intention to commit his murder. 4] In order to prove the charge, the prosecution has examined in all 8 witnesses and also relied upon various documents. The learned Court below, however acquitted the appellants for the offence punishable under Section 307 r/w Section 34 of the Indian Penal Code but convicted and sentenced the appellants for the offence punishable under Section 326 r/w Section 34 of the Indian Penal Code.
::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:29:23 ::: apeal 4.03 3 5] I have heard Shri Abhay Sambre,learned counsel for appellants and Shri R.S.Nayak, learned A.P.P. for State- respondent in extenso. With their able assistance I have gone through the evidence of prosecution witnesses and materials brought on record during the course of trial.
6] According to learned counsel Shri Abhay Sambre for appellants the conviction of the appellants cannot sustain in view of the fact that:
(i) The Court below itself discarded evidence of Tukaram Fuktu Dhengre(PW1) and Anandrao Mangru Dhengre(PW3).
(ii) The prosecution has not seized or produced the weapon axe.
(iii) The C.A.report is not in conformity with the prosecution case.
7] He also submitted that in view of the fact as brought on record through the cross-examination of injured Sakharam (PW2) that there is enmity in between Sakharam and accused persons, false implication at his behest is not completely ruled out. Therefore, he prayed that the appeal be allowed. ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:29:23 ::: apeal 4.03 4 8] Per contra, learned A.P.P.Shri R.S.Nayak would submit that there is no reason to disbelieve the version given by Sakharam(PW2) injured on oath from the witness box. He also submitted that in view of the injury certificate (Exh.30) it is clear that the injured has lost his left eye permanently in the assault. He therefore, submits that appeal be dismissed. 9] The F.I.R. (Exh.13)is lodged by complainant Tukaram Fuktu Dhengre. He is the brother of injured Sakharam(PW2). The oral report is at Exh.12. Though the learned Court below has found in paragraph no.22 of the judgment that this witness cannot be termed as an eye witness,but it is crystal clear that F.I.R. (Exh.13) was lodged immediately. On the basis of oral report(Exh.12) offence was registered against the appellants vide Crime No.47/2000 with P.S.Paoni, for the offence punishable under Section 307 r/w Section 34 of the Indian Penal Code. 10] P.I.Baba Bhagwanji Dongre(PW8) has investigated the Crime No.47/2000. He visited the spot of occurrence and has prepared spot panchnama(Exh.20) in presence of Shridhar Haribhau Sawarbandhe(PW5). Spot panchnama(Exh.20) a ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:29:23 ::: apeal 4.03 5 contemporaneous document also recites that when the spot of occurrence was examined by P.I.Dongre(PW8) in presence of panchas he noticed laying of bicycle on the spot. This particular recitals in the spot panchnama(Exh.20) corroborates Sakharam (PW2) as that when he was returning to his house that time he was holding his bicycle in his hand since it was punctured. In fact, this particular aspect is brought on record during the course of cross-examination. The injured was taken to the Rural Hospital at Paoni. Dr.Kalpita Narayanrao Bhandarkar(PW7) was medical officer there. She received requisition from P.S.O.Paoni as to whether Sakharam (PW2) injured is in a position to give his statement. On examination Dr.Kalpita(PW7) gave opinion (Exh.29) that injured is in semi conscious state and therefore he is not fit to give statement.
11] Dr.Kalpita(PW7) has examined injured Sakharam (PW2) and has proved the injury certificate (Exh.30). Following six injuries were noticed by Dr.Kalpita(PW7). Those are as under:
(I) Incised wound on the left upper eyelid, size 2 cm. Under-line haematoma.
(ii) Complete evolution of left eye ball.
(iii) Two incised wounds on Lt.Cheek, extending
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deep upto the bone,size 2 c.m. in length
with active bleeding.
(iv) 5 cm. Contusion lacerated wound on right
side of forehead extending upto skull, no
underline fracture.
(v) Lacerated wound on left occipital temporal
region of 7 cm.size extending upto skull,
with no underline fracture.
(vi) Contusion on right leg and left thigh ,
swelling present.
All wounds were found sutured.
From the nature of the injuries, it is clear that apart from the other incised wounds and contusions Sakharam(PW2) lost his eye sight of left eye permanently. Thus, Sakharam suffered grievous injury as established by the prosecution.
12] According to appellants, independent witnesses are not examined. In this context, firstly the Court will require to scrutinise the evidence of injured. The fate of the prosecution is not decided by the quantity of the evidence that is brought on record. It is always decided on the basis of qualitative evidence which is produced by the prosecution during the course of trial. Therefore, non-examination of independent witnesses though available as argued by the learned counsel for appellants cannot ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:29:23 ::: apeal 4.03 7 be the reason to discard the prosecution case. In the present case, the Court has to evaluate the evidence of Sakharam(PW2) and if the evidence of Sakharam(PW2) inspires confidence and found to be trustworthy version then, conviction can be safely awarded and can be upheld by this Court.
13] The evidence of Sakharam(PW2) shows that the incident occurred on 24/4/2000 at about 8.30 a.m. That time he was returning to his house from his agricultural filed. On a way, accused no.2 accosted him near the house of one Ramesh Deshmukh. At the time of accosting, Sakharam(PW2) was challenged that his father practices sorcery on his wife and thereafter he assaulted on his head by means of axe. That time, accused no.1 who was present there and was armed with stick(ubhari) assaulted on his chest, head and other parts of the body. As per his evidence he became unconscious and he regained consciousness only at Govt.Medical College,Nagpur.
The cross-examination of this injured(PW2) shows that in fact there is no challenge on the part of the appellants in respect of the actual assault made by each of the accused. By cross-examination it is tried to be brought on record about ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:29:23 ::: apeal 4.03 8 pendency of civil suit and that parties are at cross term,and therefore, the appellants are falsely implicated. Enmity is a double edged weapon. Further, nothing is available on record even during the cross-examination of any of the prosecution witness to show that rivalry was so bitter that there is a every possibility of Sakharam falsely implicating the appellants. 14] In the evidence itself Sakharam(PW2) says that according to appellant no.2 Shalikram's father practices black magic and thereafter, he was assaulted. Even this aspect is also not under challenge by the defence when Sakharam was cross- examined. On the contrary, it is brought on record that original accused no.2-appellant no.2 uttered only one sentence that his father practices sorcery on his wife.
15] The evidence of Sakharam(PW2) , the injured is free from omissions and contradictions. His evidence is also supported by the medical evidence. The nature of the injuries as mentioned in injury certificate(Exh.30) as per the evidence of Dr.Kalpita(PW7) corroborates that he was assaulted by means of sharp weapon and blunt object. Therefore, merely because the axe ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:29:23 ::: apeal 4.03 9 is not seized by the investigating officer that is not sufficient to discard the evidence of Sakharam(PW2)which is found otherwise to be truthful. The injuries show that he was assaulted by means of sharp weapon. In that behalf it would be useful to refer paragraph no.12 of the decision of Hon'ble Apex Court reported in Tama @ Tamal Mal..vs..State of West Bengal, AIR 2008 SC 12.
" 12.When the testimonies of two eye witnesses had been believed by the learned Trial Judge as also by the High Court and in view of the fact that we did not see any reason to differ with the findings of the two Courts, in our opinion, the fact whether the blood stains collected from the place of occurrence by the Investigating Officer had been sent to the Forensic Expert for chemical examination or not, pales into insignificance. We are furthermore of the opinion that whether the knife was recovered or not is also not of much importance."
In the said case also the Hon'ble Apex Court noticed that when the version of the eye witness found to be truthful whether the knife was recovered or not is of not much importance. 16] Once, it is found that the evidence of Sakharam(PW2), the injured is free from all doubts, embellishment and when it inspires confidence in the mind of the Court, the sole testimony of ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:29:23 ::: apeal 4.03 10 the injured can be basis for conviction. Resultantly, I dismissed the appeal.
ORDER
I) The appeal is dismissed.
II) The judgment and order passed by learned Additional
Sessions Judge,Bhandara dated 10/12/2002 in S.T.No.104/2000 is hereby confirmed.
III) The appellants who are on bail shall surrender to their bail bonds within a period of four weeks,else the learned Court below to take step to secure the presence of the appellants for serving out remaining sentence. IV) At this stage, learned counsel Shri Abhay Sambre for the appellants submitted that four weeks time be granted to the appellants to surrender their bail bonds. The appellants were released by this Court on bail on 22/2/2003. In that view of the matter, the prayer of learned counsel for the appellants is accepted. The appellants are granted four weeks time to surrender their bail bonds failing which the Court below to issue non bailable warrants against the appellants to secure their presence for serving out remaining sentence.
JUDGE Kitey ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:29:23 :::