1 apeal209.00
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.209/2000
Gopal Bapuraoji Walve,
Aged 32 years, Labourer,
R/o Samadhan Nagar, Irwain
Chowk, Police Station City Kotwali,
At Amravati, Tq. and Dist. Amravati. .... APPELLANT
VERSUS
The State of Maharashtra,
through P.S.O., Police Station City
Kotwali, Amravati.
.... RESPONDENT
______________________________________________________________
Shri J.B. Kasat, Advocate for the appellant,
Shri N.B. Jawade, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 8 AUGUST, 2017.
th ORAL JUDGMENT :
This appeal seeks to assail the judgment and order dated 13-06-2000 delivered by the Additional Sessions Judge, Amravati in Sessions Trial 264/1994, by and under which the appellant was convicted for offences punishable under Sections 148 and 326/149 of ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 ::: 2 apeal209.00 the Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and rigorous imprisonment for one year for the offences punishable under Sections 148 and 326/149 of the Indian Penal Code respectively.
2. The appellant and four others faced the trial for the aforestated offences. The appellant was arrayed as accused 2 and has been convicted alongwith Madan Sahu Walve and Ramesh Babulal Sahu who were arrayed as accused 1 and accused 5. Accused 1 and 5 have not challenged the order of conviction.
3. The prosecution case, shorn of unnecessary details, is that when the victim Deepak Gupta and his friends Mangesh Ajmire, Vivek Mishra, Kanti Choudhari, Ambarish Khandelwal, Neeraj Deshmukh and Akhil Varma were socially interacting near the building of Sahkar Bhavan, Central Bank of India, Amravati on 16-08-1993, the accused alongwith two brothers of accused 4 arrived in an auto-rickshaw at about 9.00 p.m. Accused 1 was armed with a sword, accused 2 was armed with iron pipe, accused 5 was armed with a barber razor and accused 4 was wielding a hockey stick. According to the prosecution case, accused 1 inflicted a sword blow on the head of Deepak Gupta ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 ::: 3 apeal209.00 and accused 5 attacked him with barber razor. Accused 2 allegedly delivered a blow by iron pipe on the legs of Deepak Gupta while accused 4 assaulted him with a hockey stick.
4. The prosecution contends that the injured victim went to City Kotwali Police Station and was admitted in General Hospital, Amravati. He was treated by one Dr. Bhonde attached to General Hospital, Amravati. The wounds noticed by the treating doctor were lacerated wound of size 4" x ¼ " bone deep on parietal region, a lacerated wound on the frontal region and a lacerated wound on occipital region. Two incise wounds were noticed on the left leg and left knee joint alongwith abrasion with contusion on the upper 1/3rd region of the left leg and an abrasion 1" x 1" on the right elbow. One P.S.I. Mahajan who was then attached to Police Station City Kotwali visited the hospital and recorded the complaint lodged by Deepak Gupta. On the basis of the said complaint, offence came to be registered against the accused persons, a spot panchanama was drawn and statements of witnesses who were allegedly present at the time of the incident alongwith the complainant, were recorded.
5. The prosecution case is that after the accused were ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 ::: 4 apeal209.00 arrested on 19-08-1993, accused 1 to 4 jointly discovered the weapons which were allegedly hidden in debris of waste material from the premises of Walcut Compound, Amravati. Investigation culminated into charge-sheet filed in the court of Chief Judicial Magistrate, Amravati who committed all the accused to the court of Sessions for trial.
6. The learned Sessions Judge framed charge for the offences punishable under Sections 147, 148, 307 read with Section 149 of the Indian Penal Code and Section 4/25 of the Arms Act vide Exhibit 19. The appellant pleaded not guilty vide his plea Exhibit 21.
7. The prosecution examined six witnesses to bring home the charge. P.W.1 Deepak Gupta is the injured victim. P.W.2 Kantikumar Choudhari and P.W.4 Vivek Mishra were examined as eyewitnesses to the assault. P.W.3 Ashok Mehara is panch to the discovery of the weapon from the accused 1, 2 and 4. P.W.3 has not supported the prosecution and was declared hostile and cross-examined. P.W.5 is Dr. Shriram Bhonde and P.W.6 is the Investigating Officer PSI Mahajan.
8. The defence of the accused 1 to 5 is of total denial and ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 ::: 5 apeal209.00 false implication. The defence is that Deepak Gupta, the complainant is a notorious criminal who is facing number of prosecutions and has falsely implicated the accused as a counter-blast to a complaint of assault lodged by accused 2 against the complainant.
9. Shri J.B. Kasat, learned Counsel for the appellant vehemently attacked the judgment impugned contending that the evidence on record is grossly insufficient to return a finding of guilt. He further contended that the oral testimony of the complainant is falsified by the medical evidence. Before I record my finding on the aforesaid submissions, a scrutiny and consideration of the evidence on record would be in order.
10. The oral report, which is treated as the first information report of the complainant recorded on 16-08-1993 reveals that he named the accused 1, accused 2, accused 3 and accused 4 and his two brothers and accused 5 as the perpetrators of the assault. Accused 3 is referred to as Kallu, accused 4 is referred to as Allu. The first information report narrates that on 14-08-1993 a quarrel took place between the accused and the complainant and the assault was a fall out of the altercation. However, during cross-examination, P.W.1 ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 ::: 6 apeal209.00 complainant states that before the incident there was no dialogue between P.W.1 and accused and that he was knowing the accused by face and name. P.W.1 complainant categorically stated in the cross- examination that there was no interaction between him and the accused prior to the incident. He further states in the cross- examination that he was attacked from behind and after sustaining the blow on the head by the sword, he fell down sideways (facing to one side). Certain omissions have been brought on record, some of them are minor and would not partake the character of contradiction. However, in response to a question in the cross-examination, P.W.1 says that the attackers did not include Allu, Kallu and their two brothers. In the light of the said assertion, the learned Sessions Judge was pleased to acquit accused 3 and 4. P.W.1 further admits that he was facing three to four criminal prosecutions including prosecution for the offence of murder. He admits that a prosecution was initiated against him for attacking accused 2 with a sword but the admission is with a rider that the registration of the offence is not prior to the incident. P.W.2 Kantikumar Choudhari who was examined as a witness to the incident does not take the case of the prosecution any further and his testimony is limited to assering that five to six persons appeared on the spot and attacked P.W.1 with sword, pipe and hockey ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 ::: 7 apeal209.00 stick. P.W.3 Ashok Mehara was examined as panch to the discovery memo and the recovery and seizure of the weapons. P.W.3 did not support the prosecution, was declared hostile and cross-examined which has not brought on record any material to bolster the prosecution case. P.W.4 Vivek Mishra is examined as an eyewitness to the incident. He states in the examination-in-chief that in the year 1993 at about 9-00 p.m. four to five persons alighted from an auto- rickshaw and assaulted P.W.1 by means of knife. P.W.4 specifically names the appellant as one of the persons who assaulted P.W.1 with knife. This witness is subjected to an extensive cross-examination. I need not delve on the cross-examination in any detail since testimony of both P.W.2 and P.W.4 has been kept out of the consideration by the learned Sessions Judge. The learned Sessions Judge has ignored the testimony of P.W.2 since the said witness did not identify any of the accused as the perpetrator of the assault. The testimony of P.W.4 is held to be unreliable and unbelievable since it was not the case of the prosecution that knife was used during the assault.
11. P.W.5 Dr. Shriram Bhonde has proved the injury certificate (Exh.59). P.W.5 has deposed that out of the seven injuries, only injury (i) is serious in nature and the said injury which is a ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 ::: 8 apeal209.00 lacerated wound size 4" x 1" bone deep on parietal region could be caused by fall on hard and rough substance. He admits that the said injury can also be caused if concerned person is hit by stone. The injury (i) is alleged to have been caused by the sword blow delivered by the appellant and it would be important to note that the opinion of P.W.5 expressed in the examination-in-chief is that the said injury is caused by hard and blunt object. The last witness P.W.6 P.S.I. Mahajan is the Investigating Officer.
12. The learned Sessions Judge was pleased to acquit accused 3 and 4 in view of the testimony of P.W.1 who categorically stated that the said accused were not participants in the assault. Testimonies of P.W.2 and P.W.4 are held to be of no assistance to the prosecution for reasons spelt out supra. The learned Sessions Judge also did not attach any importance to the alleged discovery holding that the panch witness to the discovery and seizure (P.W.3) did not support the prosecution and further that joint and simultaneous discovery by four accused is unbelievable and unsafe to be relied upon. The learned Sessions Judge, however, recorded a finding of guilt qua accused 1, 2 and 5 relying on the testimony of P.W.1 which according to the learned Sessions Judge is corroborated by the medical evidence. ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 :::
9 apeal209.00
13. I have given anxious consideration to the testimony of P.W.1 and the medical evidence on record. I find it difficult to hold that the testimony of P.W.1 is believable or reliable. P.W.1 admits that he is facing four criminal prosecutions including prosecution for murder and is certainly not a peace loving and cautious citizen. The first information report narrates that there was a quarrel between P.W.1 and the accused and that the alleged assault was a fall out of the said altercation. However, while deposing before the Court P.W.1 asserts that there was absolutely no interaction between him and the accused prior to the incident and that he only knew the accused by name and face. The attempt is clearly to preempt an accusation of false implication due to existing rivalry. Accused 3 and 4 who were named in the first information report were granted a clean chit by P.W.1, which conduct is suspicious and at any rate is a conduct which shakes the credibility of the complainant. P.W.1 claims to have been assaulted from behind. His assertion that the appellant delivered the sword blow on his head is not supported by the medical evidence. A submission was made during the course of trial that since injury (i) is a lacerated wound, the same could not have been caused by a sword blow. It was urged that in the absence of an incise wound the assertion that the appellant delivered a sword blow on the head is not ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 ::: 10 apeal209.00 free from doubt. This submission is brushed aside by the learned Sessions Court holding that the injuries on the skull were bone deep and are infact incise wounds. The difference between a lacerated wound and incise wound and the implication of the difference is too deeply entrenched in medical jurisprudence. This is not to suggest that a lacerated wound can never be caused by a sword blow. A thick edged and blunt sword may indeed cause lacerated wound. However, there is absolutely no evidence on record to suggest that the sword allegedly used to deliver the blow on the head was of such nature. The testimony of P.W.1 is not corroborated by the other two witnesses P.W.2 and P.W.4 who allegedly witnessed of assault. Several other persons, claimed as friends by P.W.1, allegedly present at the spot, have not been examined. It is true that there is a sanctity attached to the testimony of an injured witness and ordinarily no corroboration may be required for the Court to accept such testimony if the injured witness is otherwise found to be credible and reliable. The fact that the witness suffered injury/injuries lends an assurance that he was indeed present on the spot at the time of incident. However, there is no inflexible or immutable rule of evidence that the testimony of an injured witness must be necessarily relied upon. I am of the opinion, that there are sufficient and compelling reasons to hold that the false ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 ::: 11 apeal209.00 implication of the appellant/accused cannot be ruled out with any degree of certainty. I am, therefore, inclined to hold that in the absence of corroborative evidence, it would be unsafe to convict the appellant, on the basis of the testimony of P.W.1.
14. In the light of the discussion and findings recorded supra, I would allow the appeal. The judgment and order passed by the learned Additional Sessions Judge, Amravati in Sessions Trial No.264/1994 on 13-6-2000 is set aside. The appellant is acquitted of the offences punishable under Sections 148 and 326/149 of the Indian Penal Code. His bail bond shall stand cancelled. Fine, if any, paid by the appellant shall be refunded to him.
The appeal accordingly stands disposed of.
JUDGE adgokar ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:29:33 :::