Cri.Appeal No.27/2002
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 27 OF 2002
The State of Maharashtra,
through Police Station, Hadgaon,
Taluka Hadgaon, District Nanded ..Appellant
Versus
1. Vijay s/o Kantrao Ramthirthkar,
Age 21 years, Occu. Education,
R/o Ward No.14, Hadgaon,
Taluka Hadgaon, Dist. Nanded
2. Sambhaji s/o Devji Chanchalwad,
Age 27 years, Occu. Service,
R/o Ramnagar, Kinwat,
Taluka Kinwat, District Nanded ..Respondents
Mr S.D. Ghayal, A.P.P. for appellant
Mrs A.N. Ansari, Advocate for respondent no.1
Mr A.R. Nikam, Advocate for respondent no.2
CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ
DATE OF RESERVING
THE JUDGMENT : 07.11.2017
DATE OF PRONOUNCING
THE JUDGMENT : 05.12.2017
JUDGMENT (Per A.M. Dhavale, J.)
1. This is an appeal by the State against the judgment of acquittal of two accused for offences punishable under Sections 307, 506 read with Sec.34 of Indian Penal Code by III Assistant Sessions Judge, Nanded in Sessions Case No.165/1998 dated 25.9.2001.
2. Brief facts relevant for deciding this appeal may be stated as follows:
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Cri.Appeal No.27/2002 2 P.W.1 Vijay Bharti, aged 45 years is the informant and victim. On 5.12.1997 he submitted a written F.I.R. Exh.22 to the effect that on that day at 9.00 a.m., while he was returning from Maruti temple to his house and was talking with P.W.7 Deelip Yenum near public tap in Ward No.15 at Hadgaon, accused no.1 Vijay Bharti and his accomplice Sambhaji Chanchalwade came running towards him. Accused no.1 Vijay inflicted a blow of knife on his abdomen. As P.W.1 Vijay moved backwards, he sustained injury near his left rib. Thereupon, accused no.1 Vijay inflicted second blow towards his neck, but P.W.1 Vijay put his left hand in between. P.W.1 Vijay sustained injury to his left arm and cheek. He raised shouts and then Deepak Chandel and P.W.1 Vijay's brothers Dhananjay and Ravi rushed to the spot. Thereafter, both the accused ran away. While leaving, the spot accused no.1 Vijay threatened to kill him by his revolver. P.W.1 Vijay sought protection from Police as accused no.1 Vijay had tried to kill him.
3. On the basis of F.I.R., crime was registered at C.R.No.251/1997 at 10.30 a.m. under Sections 307, 506 read with Sec.34 of Indian Penal Code. It was investigated into. Spot panchnama was drawn and blood stained shirt and one baniyan of P.W.1 Vijay were seized. Statements of material witnesses were recorded. The accused were arrested and on the basis of his voluntary statement, a knife was recovered from his house. After collecting medical evidence, the charge-sheet was submitted in the Court of Judicial Magistrate, Hadgaon.
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Cri.Appeal No.27/2002 3
4. In due course, the case was committed to the Court of Sessions. The charge was framed against the accused under Section 307, 506 read with Sec.34 of Indian Penal Code. They pleaded not guilty. The prosecution examined eight witnesses. Defence of the accused is of total denial. Accused no.1 Vijay claimed that he had land dispute with P.W.1 Vijay, P.W.6 Deepak and P.W.7 Deelip are his friends and, therefore, he was falsely implicated. He was at the relevant time in Nanded. Accused no.2 Sambhaji took a simple defence of total denial. The learned trial Judge (III Assistant Sessions Judge, Nanded) did not accept the prosecution evidence and, therefore, the accused were acquitted. Hence this appeal.
5. Learned A.P.P. Mr S.D. Ghayal has taken us through the evidence on record. He stated that the F.I.R. is promptly recorded, the evidence of injured witness Vijay is consistent and is well supported by medical evidence, there is also evidence of eye witness P.W.6 Deepak Chandel and P.W.7 Deelip. There is discovery of knife by the accused and the doctor opined that the injuries suffered by P.W.1 Vijay were possible by knife blows. Hence, the accused deserve to be convicted under Sections 307, 506 read with Sec.34 of Indian Penal Code.
6. Per contra, learned Counsel Mrs Ansari argued that the evidence of prosecution is full of discrepancies. There are several suspicious circumstances, which remained unexplained and, therefore, the judgment of acquittal does not deserve any interference. He pointed out that the F.I.R. is typed one and the typewriter was brought by ::: Uploaded on - 05/12/2017 ::: Downloaded on - 06/12/2017 02:28:25 ::: Cri.Appeal No.27/2002 4 Clerk of P.W.1 Vijay's uncle, who is Advocate. He pointed out that injury No.4 contusion on abdomen is not properly explained. The Baniyan of P.W.1 Vijay was not torn nor there were blood stains on it. No role has been assigned to accused no.2 Sambhaji, who was unknown to P.W.1 Vijay. There was admittedly land dispute between accused no.1 Vijay and P.W.1 Vijay, but it was compromised. No blood was found on the spot. The knife is not recovered by accused no.1 Vijay but by his mother. Accused no.1 Vijay is having no revolver. The injuries are only of size of 0.5 cm. Width. There is no evidence whatsoever against accused no.2 Sambhaji. There are material discrepancies in the evidence of eye witnesses with regard to their presence and about time of arrival. In the alternative, he submitted that accused no.1 Vijay was in jail for eight days and incident had taken place about 20 years back. The injury is not grievous. Therefore, accused no.2 Sambhaji be acquitted and accused no.1 Vijay be convicted under Section 324 of Indian Penal Code.
7. The points for our consideration with our findings are as follows:
(1) Whether accused nos.1 and 2 in .. Offence u/s 324 of IPC
furtherance of their common proved against accused
intention attempted to commit no.1.
murder of P.W.1 Vijay ?
(2) Whether accused nos.1 and 2 in
furtherance of their common
intention criminally intimidated .. In the negative
P.W.1 Vijay with threats of killing?
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Cri.Appeal No.27/2002
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(3) What order ? .. The appeal is partly
allowed
- REASONS -
8. The prosecution has examined eight witnesses as follows:
Main witnesses :
(I) P.W.1 - Vijay injured witness and informant (F.I.R. Exh.22)
(II) P.W.7 - Deelip - eye witness
(III) P.W.6 Deepak Chandel - eye witness
Medical Evidence
(I) Medical Officer P.W.5 Dr. Lomte - three incised wounds and
one contusion (Certificate Exh.36)
Panchas
(I) P.W.2 - Ramrao Deshmukh - spot panchnama (Panch Exh.24)
(No blood on the spot)
(II) P.W.3 Datta - seizure of blood stained shirt and Sando baniyan
of P.W.1 Vijay (Exh.26), Shirt and baniyan (Articles 2 and 3) No blood on baniyan and Memorandum and seizure of knife from the house by accused no.1 Vijay (Exhs.28 and 29) ::: Uploaded on - 05/12/2017 ::: Downloaded on - 06/12/2017 02:28:25 ::: Cri.Appeal No.27/2002 6 (IV) P.W.8 P.S.I. Bharat Paradke, Investigating Officer. He deposed about recording of F.I.R. (Exh.22).
(V) Drawing spot panchnama - Exh.24 (VI) Map of the spot Exh.41
(VII) Seizure of shirt and baniyan of the informant Exh.26 (Articles 2 and 3) (VIII) Discovery of knife by accused No.1 Vijay (Exhs.28 and 29)
9. P.W.1 Vijay is the injured witness. As per his evidence, he had land disputes with the accused and their family. They were not on talking terms with each other for about two years. On 5.12.1997, at 9.00 a.m., P.W.1 Vijay had gone to the temple of Lord Maruti and while returning, he was talking to Deelip Yenum P.W.7 near a water tap situated near the house of accused no.1. At that time, accused no.1 Vijay suddenly came running and inflicted a blow of knife on his abdomen. When he tried to avoid it, he received injury on left rib. Then accused no.1 gave second blow towards the neck of P.W.1 Vijay. P.W.1 Vijay raised arm to ward off the blow on the neck. He thereby sustained a blow of knife on his left hand and cheek and sustained bleeding injuries. He raised shouts. His brothers Dhananjay and Ravi and friend P.W.6 Deepak Chandel came to his rescue. That time accused no.2 Sambhaji was also with accused no.1 Vijay. Accused no.1 Vijay gave threats of killing by revolver and both the accused ran away. He deposed that father of accused no.1 Vijay was possessing revolver. He also stated that while sustaining the knife blows, he sustained internal injury by the handle of the knife on his abdomen. He was immediately taken to police station and P.S.I. present there ::: Uploaded on - 05/12/2017 ::: Downloaded on - 06/12/2017 02:28:25 ::: Cri.Appeal No.27/2002 7 sent him to the hospital first for medical treatment. The hospital is nearby the police station. At the same time, P.W.1 Vijay's uncle came there along with his Clerk and a portable typewriter. Report of P.W.1 Vijay was typed on the typewriter and the typed report Exh.22 was given to the police, which is treated as F.I.R. Later on, his shirt and baniyan were seized. He identified them (Articles no.2 and 3). He also identified Court Article no1 knife used for assault. The F.I.R. Exh.22 bears the endorsement that station diary entry was recorded on the basis of the same at 10.30 p.m. Crime was registered at C.R.No.251/1997 for offences punishable under Sections 307, 506 read with Sec.34 of Indian Penal Code.
10. The evidence of P.W.5 Dr. Lomte shows that P.W.1 Vijay was referred to him by Hadgaon police and he examined him at 9.45 a.m. He noticed following injuries on his person :
1) Sharp edged injury on left cheek, 1.5 cm x 0.5 cm
2) Sharp edged injury on left iliac region of abdomen 4 cm x 0.5 cm
3) Sharp edged injury on left forearm at lower 1/3rd, 1 cm x 0.5 cm All injuries were freshly bleeding, caused within six hours by sharp edged object and were simple in nature.
4) Fourth injury is contusion on lipigastric region of abdomen 3 cm x 3 cm reddish coloured, caused within six hours by hard and blunt object, simple in nature. Patient was admitted in Rural Hospital, ::: Uploaded on - 05/12/2017 ::: Downloaded on - 06/12/2017 02:28:25 ::: Cri.Appeal No.27/2002 8 Hadgaon on 5.12.1997 and was referred to Civil Hospital, Nanded on the next day, as he was complaining pains in abdomen. He has accordingly issued injury certificate Exh.33. His reference letter is at Exh.36. The X-ray plates were seen by the doctor and he found that there was no internal injury. X-ray plates are at Exh.37. Injury no.4 is described as fatal (?) Injury nos.1 to 3 are possible by muddemal knife Article no.1. Injury no.4 was possible by handle of the knife.
11. The incident has taken place at 9.00 to 9.30 a.m. in broad day light, where there was no issue of sufficiency of light for identification of the assailants. Since there are four injuries, there was sufficient time with the injured to see as to who was the assailant.
12. In cross-examination of the Doctor, it is brought on record that the injuries were having sharp edges and it was suggested that those could be caused by any weapon having sharp edges on both the sides and not by only knife which is having sharp edge on one side. The Medical Officer categorically opined that injury nos.1 to 3 were possible by knife. It is pertinent to note that injury nos.1 to 3 are sharp injuries, but those are not stab wounds. Only in case of stab wound one can expect use of weapon having edges on both the sides if the injuries are having clear cut margins on both the sides.
13. Thus, the evidence of P.W.1 Vijay and the Medical Officer shows that his evidence is consistent with F.I.R. Exh.22 which was promptly lodged within one hour. Considering the priority given to medical treatment, there is absolutely no delay in lodging the F.I.R. The ::: Uploaded on - 05/12/2017 ::: Downloaded on - 06/12/2017 02:28:25 ::: Cri.Appeal No.27/2002 9 injuries are consistent with the evidence led by P.W.1 Vijay with regard to the nature of assault.
14. When any injured person deposes on oath, his evidence stands on higher pedestal than other witnesses. When his evidence is cogent and consistent with his F.I.R. and the F.I.R. is lodged promptly and the medical evidence corroborates his evidence, normally the evidence of such witness should be believed and the Court should find out whether there are special reasons, which can throw a cloud of reasonable doubt on his evidence. If there are such circumstances, then only his evidence can be disbelieved.
15. P.W.6 Deepak and P.W.7 Deelip are the eye witnesses.
16. P.W.6 Deepak has deposed that on 5.12.1997 at 9.00 a.m. after returning from Maruti temple, he was standing at Sonole chowk. Then P.W.1 Vijay came there and both were chitchatting. P.W.7 Deelip joined them. They were near the public water tank near the road. He deposed that at that time accused no.1 Vijay came from the side of his house and gave two blows of knife on his person. One blow hit on left rib. Another on his left cheek and left hand. P.W.1 Vijay sustained injuries. He shouted loudly. P.W.6 Deepak stated that he, Dhananjay and Ravi rushed to the spot of incident. He deposed that accused no.1 Vijay gave threat to the complainant (P.W.1 Vijay) that he would see him later. Accused no.1 Vijay ran away on motorcycle. Accused no.2 was sitting on the bike. The assault took place on account of land dispute. He also identified the knife Article No.1 and shirt Article no.2. ::: Uploaded on - 05/12/2017 ::: Downloaded on - 06/12/2017 02:28:25 :::
Cri.Appeal No.27/2002 10
17. Evidence of P.W.6 Deepak is somewhat different. According to P.W.1 Vijay, he came to the spot after hearing his shouts. P.W.6 Deepak has also stated so. Then his earlier evidence that he was chitchatting with P.W.1 Vijay and P.W.7 Deelip is inconsistent. The threat allegedly given by accused no.1 Vijay to P.W.1 Vijay is also different.
18. P.W.6 Deepak must not have seen the first blow as his attention was drawn after hearing the shouts of P.W.1 Vijay. He had rushed to the spot after the incident, but he deposed that he was there from beginning. If he was there, then his evidence that he rushed to the spot is not consistent with his earlier evidence. We find that the evidence of P.W.6 Deepak is not much reliable and hence his evidence cannot be taken into consideration.
19. But according to evidence of P.W.1 Vijay, P.W.7 Deelip has deposed that at the material date and time, he was talking with P.W.1 Vijay. His evidence that P.W.6 Deepak was also present there is suspicious. He deposed that accused no.1 Vijay came from his house with a knife in his hand and gave first blow on abdomen of P.W.1 Vijay. The second blow was given on left hand and cheek of P.W.1 Vijay. As P.W.1 Vijay warded off the blow on neck by putting his left arm in between. He sustained injury on cheek and left hand. P.W.1 Vijay also deposed consistently that accused no.1 Vijay gave him threat to kill by revolver. He further deposed that accused no.1 and 2 left the spot on a motorcycle. He had identified shirt worn by P.W.1 (Article No.2). In cross-examination, it is brought on record that his ::: Uploaded on - 05/12/2017 ::: Downloaded on - 06/12/2017 02:28:25 ::: Cri.Appeal No.27/2002 11 statement was given to him for reading. He read it for more than three to four times and thereafter he is deposing in the Court. There is contradiction as to who was driving the bike when accused nos.1 and 2 left the spot. He stated that there were blood stains on the shirt, but Article no.2 shirt was not having blood stains.
20. It is argued by learned Advocate for the respondent that the spot panchnama Exh.24 was drawn in presence of P.W.2 Ramrao and he has deposed that no blood was seen on the spot and no blood mixed soil was seized from the spot. P.W.2 Ramrao stated that the spot panchnama shows that the spot was shown by P.W.6 Deepak, but that is not true. In fact, the spot panchnama shows that the spot was shown by P.W.7 Deelip.
21. P.W.4 Dattarao has stated that accused no.1 Vijay made a voluntary statement on 6.12.1997 at 10.00 a.m. and in pursuance thereof, he discovered the weapon of offence knife. His statement was recorded as per Exh.28. In pursuance of that statement, he took the police and panchas to his house and his mother produced the knife (Court Article no.1). It was seized at seizure panchnama Exh.29. Learned Advocate for the respondent no.1 relied on the fact that the weapon was produced by mother and not by accused no.1 personally, but it is not significant. It is significant that it was seized from his house and it was produced at the instance of accused no.1. It is argued that the weapon was not sent for chemical analysis and there is no report that it was having blood stains of the blood group of the injured. It is also brought on record that baniyan of P.W.1 Vijay was ::: Uploaded on - 05/12/2017 ::: Downloaded on - 06/12/2017 02:28:25 ::: Cri.Appeal No.27/2002 12 not having blood stains and it was not torn. P.W.3 Datta is the panch to the seizure of shirt and baniyan produced by P.W.1 Vijay. The shirt was blood stained and torn, but the baniyan was not having blood stains and it was not torn. It is also argued that the weapons seized were not sealed by the Investigating Officer in presence of panchas. The learned Advocate for respondent no.1 also relied on the fact that the F.I.R. lodged is a typed F.I.R. and the typing was carried out by the Clerk of P.W.1 Vijay's uncle, who is Advocate.
22. We have considered the submissions made before us and the reasoning given by the learned trial Judge. There are some lacunae in the prosecution case. Evidence of P.W.6 Deepak is not wholly reliable and trustworthy. The investigation is faulty, as no clothes of the accused were seized. Thus, there is no evidence that the clothes of the accused no.1 Vijay were stained with blood. No role has been assigned to accused no.2 Sambhaji. However, we find that the evidence of P.W.1 Vijay that accused no.1 Vijay all of a sudden came and inflicted two blows of knife is reliable. P.W.1 Vijay has stated that he met P.W.7 Deelip on the spot and was talking with him. His F.I.R. is also similar and there was sudden assault on him by accused no.1 Vijay. He shouted for help. Dhananjay, Ravi and Deepak Chandel came running to the spot. He has not stated that Deelip came to the spot running after hearing the shouts. Learned trial Judge erred in relying on the contents to that effect in the F.I.R. Exh.22 which were not duly proved by confrontation as per Section 145 of Evidence Act The learned trial Judge observed that the act of P.W.7 Deelip in not intervening is suspicious. It is to be noted that there were only two ::: Uploaded on - 05/12/2017 ::: Downloaded on - 06/12/2017 02:28:25 ::: Cri.Appeal No.27/2002 13 blows given and in a sudden action. Accused no.1 Vijay was armed with knife. In said situation, it cannot be expected that P.W.7 Deelip should have intervened at the risk of injury to himself. There are other discrepancies regarding time and arrival of P.W.6 Deepak, but on that count, we discard the evidence of P.W.6 Deepak. Still we find that there is no justifiable reason to discard the evidence of P.W.1 Vijay with regard to the assault by accused no.1 Vijay on him by knife, as his evidence is corroborated by immediately lodged F.I.R. and the medical certificate. There was also enmity between accused no.1 Vijay and P.W.1 Vijay. Therefore, reliance on the admission that there were no quarrels between the two parties during last two years was not proper. We find that the evidence against accused no.2 is not sufficient to implicate him in the assault. There is nothing to show that he had shared common intention with accused no.1 Vijay. At least he deserves to get benefit of doubt, but we rely upon evidence of P.W.1 Vijay to hold accused no.1 Vijay guilty for inflicting two blows of knife on him.
23. The evidence shows that accused no.1 tried to stab P.W.1 Vijay and also tried to inflict injury on his neck. As per evidence of P.W.5 Dr. Lomte, P.W.1 Vijay has sustained injury of 1.5 cm x 0.5 cm on cheek, 4 cm x 0.5 cm in iliac region and 1 cm x 0.5 cm on left forearm. We find that none of the three injuries are shown to have any depth. We find that accused no.1 Vijay had intention to cause injuries by knife, but the intention to commit murder is not proved beyond reasonable doubt.
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24. P.W.1 Vijay and P.W.7 Deelip have deposed that while leaving the spot, accused no.1 Vijay had threatened to kill P.W.1 Vijay by revolver. Evidence of P.W.1 Vijay and P.W.6 Deepak on the point of the words uttered for threat are contradictory.
25. As per Section 503 of Indian Penal Code, criminal intimidation, mere threat to kill or cause injury is not sufficient. It should be intended to cause that person to do any act, which he is not legally bound to do, or omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat. In the present case, the evidence is not clear what was the intention of giving threat and what alarm was caused to P.W.1 Vijay, as what he should do or omit to do anything so as to avoid execution of that threat. Hence, we hold that offence under Section 506 of Indian Penal Code is not made out.
26. In the result, we hold accused no.1 Vijay guilty for offence punishable under Section 324 of Indian Penal Code. The appeal against accused no.2 deserves to be dismissed. Accused no.1 Vijay deserves to be acquitted of other charges. We forfeit the bail bonds of accused no.1 Vijay and direct the Police Officers concerned to produce accused no.1 Vijay Kantrao Ramthirthkar before us on 18 th December 2017, for hearing him on the point of sentence.
27. Appeal is partly allowed in above terms.
( A.M. DHAVALE, J.) ( T.V. NALAWADE, J.)
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