apeal296.08.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.296 OF 2008
Vyanktesh s/o Gajanan Jumde,
Aged about 30 yrs.,
Occu: Labour, R/o Abhiyanta Colony
Naginabagh Ward No.25, Chandrapur.
(In Jail Custody). ....... APPELLANT
...V E R S U S...
The State (Through P.S. Officer)
Police Station Ramnagar,
Chandrapur. ....... RESPONDENT
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Shri Sachin Zoting, Advocate for Appellant.
Shri P.S. Tembhare, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
7 DECEMBER, 2017.
ORAL JUDGMENT
1] Exception is taken to the judgment and order dated
07.05.2008 passed by the learned Adhoc Additional Sessions Judge-3, Chandrapur in Sessions Case 65/2007, by and under which, the appellant-accused is convicted of offence punishable under section 335 of the Indian Penal Code (IPC for short) and is ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 2 sentenced to suffer rigorous imprisonment for three years. The accused is acquitted of offence punishable under section 307 of IPC and section 4 read with section 25 of the Indian Arms Act. 2] Heard Shri Sachin Zoting, the learned Counsel for the appellant and Shri P.S. Tembhare, the learned Additional Public Prosecutor for the respondent/State.
3] Shri Zoting, the learned counsel for the accused submits that the judgment impugned is against the weight of evidence and the marshaling of evidence on record by the learned Sessions Judge is flawed. The defence that the injured/complainant suffered injury due to fall on the iron peg in the court-yard, is probabilized on the touchstone of preponderance of probabilities, is the submission. 4] Shri P.S. Tembhare, the learned Additional Public Prosecutor supports the judgment impugned and contends that the findings recorded by the learned Sessions Judge are unexceptionable and do not suffer from any infirmity, on facts and ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 3 in law.
5] The accused faced trial for offence punishable under section 307 of IPC and section 4 read with section 25 of the Indian Arms Act pursuant to an offence registered at the Ramnagar Police Station, Chandrapur.
6] The genesis of the prosecution lies in the oral report dated 15.01.2007 (Exh.16) lodged by the informant Chaitali Pidurkar, the wife of injured Kishor, the gist of which oral report is that at 06:45 p.m. informant was cooking food in the house, her husband Kishor was engaged in a conversation with the landlord Gajanan Jumde on the ground floor. The elder son of the landlord Shantaram was also present. The accused, who is the younger son of the landlord arrived, saw her husband Kishor sitting in the chair and talking with his father and brother. The accused picked up a quarrel with the injured Kishor due to old enmity and started abusing his father Gajanan Jumde berating Gajanan for inviting tenants and permitting them to sit in front of the house. The injured Kishor was simply standing at the spot while the ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 4 accused was engaged in an altercation with Gajanan and Shantaram Jumde.
7] The informant came to the ground floor on hearing the commotion. The informant saw the accused taking out a knife from the auto-rickshaw, and ignoring the words of caution of Gajanan and Shantaram, inflicting a stab blow on the left side of the stomach of her husband Kishor. Blood was oozing from the wound. The accused again attempted to inflict a blow of the knife and was prevented from assaulting injured further by his father and brother and Sau. Vanita. The injured was rushed to the Hospital by the father and brother of the accused, and they were accompanied by the elder son of the informant and the injured Paras. Chaitali went to the Ramnagar Police Station, gave oral report Exh.16 which was reduced into writing and an offence under section 326 of IPC was registered against the accused. The Investigating Officer (I.O.) Shri Bhusari, PSI obtained the M.L.C. report (Exh.24) of the injured, prepared the spot panchnama (Exh.13), the investigation was then taken over by PSI Mujawar who added offence under section 307 of IPC, and section ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 5 4 read with section 25 of the Indian Arms Act in the crime. 8] The accused was arrested on 12.02.2007, his blood sample was collected and seized, the accused, vide memorandum under section 27 of the Indian Evidence Act (Exh.26) expressed willingness to discover the weapon kept hidden in the latrine of the house of the accused. The weapon was discovered at the instance of the accused and along with the clothes of the accused was sent for chemical analysis. The completion of the investigation led to submission of the charge-sheet in the Court of Chief Judicial Magistrate, Chandrapur who committed the case to the Sessions Court. The learned Sessions Judge framed charge at Exh.5 under section 307, the accused pleaded not guilty and claimed to be tried in accordance with law. The defence is of total denial.
9] The material witnesses, who are the eye witnesses to the incident, are P.W.2 Kishor Pidurkar who is the injured, P.W.3 Chaitali the wife of the injured and the informant, P.W.4 Paras the son of the injured and an eye witness to the incident, P.W.5 Savita ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 6 Darekar and P.W.6 Nanda Bakale who though examined as eye witnesses, did not support the prosecution. P.W.7 Dr. Sangita Narnaware conducted the medical examination of the injured, P.W.8 Bhaskar Sahare proves the memorandum and discovery of weapon at the instance of the accused. P.W.10 PSI Tayyub Mujawar and P.W.11 PSI Ramchandra Bhusari are the Investigating Officers. In the 313 of Cr.P.C. statement, the accused states that the injured was are under the influence of liquor fell on an iron peg. P.W.2 has implicated the accused falsely in view of the strained relations, is the defence taken in the 313 of Cr.P.C. statement.
10] The evidence of P.W.2, who is the injured witness, is that he was engaged in a conversation with the father of the accused. The father of the accused Gajanan asked the son of the injured Paras to give the injured a chair to sit, this was objected by the accused, an altercation ensued and when the father of the accused told the accused that it was he who had called the injured P.W.1, a quarrel ensued between the accused and his father Gajanan. The elder brother of the accused Shantaram also arrived ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 7 at the scene when the quarrel between the accused and his father Gajanan was on going. The accused rushed towards the auto, returned to the scene armed with a weapon and inflicted a blow on the stomach of the injured P.W.1, is the deposition. The credibility of the injured witness is not shaken in the extensive and searching cross-examination. It is suggested that P.W.2 is falsely implicating the accused in view of strained relationship. It is also suggested to the injured that he suffered the injury due to a fall on the iron peg in a scuffle between the injured and the father of the accused Gajanan Jumde. The trend of the cross-examination would suggest that the presence of the injured and that of the accused on the scene of the occurrence is not in dispute. The suggestion of the defence is that in the scuffle the injured who was under the influence of liquor fell on an iron peg and suffered injury due to the said fall. It is elicited in the cross-examination of P.W.7 Dr. Sangita who examined the injured that the injury suffered is possible due to fall on an iron peg. 11] I have no hesitation in recording a finding that the defence that the injured fell on an iron peg and due to which fall ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 8 he suffered injury, must be discarded. The defence is not probabilized even on the touchstone of preponderance of probabilities.
12] The evidence of an injured witness must ordinarily be placed on a higher pedestal as compared to other witnesses. It would be in rare situations, if any, that an injured witness will exculpate the guilty and inculpate the innocent. The injury suffered by the witness lends an assurance to the prosecution case that the witness was present on the spot, which presence is even otherwise not in a serious dispute. The evidence of P.W.1 that the accused went to the auto-rickshaw, came back armed with weapon and inflicted stab blow on the stomach of P.W.1, is more than corroborated by the evidence of the informant Chaitali (P.W.3) and the child witness Paras (P.W.4) who is the son of the injured Kishor. The evidence of the eye witnesses is further corroborated by the medical evidence and the discovery of the knife, on which blood stains were detected in the chemical analysis, at the instance of the accused, from the toilet in the house of the accused. Nothing is elicited in the cross-examination ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 9 of the witnesses or the Investigating Officers to disbelieve the discovery of the knife from the toilet of the accused. The blood stains are detected on the clothes of the accused, which incriminating circumstance remains unexplained. 13] I have given my anxious consideration to the evidence on record, and having done so, I am inclined to agree with the findings recorded by the learned Sessions Judge, that the accused inflicted stab blow on the left side stomach of the injured Kishor. The medical evidence would show that the injury suffered is indeed grievous. The medical examination of the injured revealed that the internal viscera was protruding out from left hypochondriac region. P.W.3 Dr. Sangita Narnaware has deposed thus, to which there is no serious challenge in the cross-examination:
"I had examined the patient vide MLC No.369. On examination I found stab wound deep penetrating of size 10 x 6 cm. deep penetrating. Internal viscera coming out in left hypochondriac region. Injury was grievous in nature, fresh caused by sharp cutting object over chest muscle. Healing time 3 weeks. I advised to take expert opinion regarding wound because the wound could not be assessed due to profuse bleeding ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 10 from wound. Patient was admitted in causality ward for expert opinion and further line of treatment. MLC report bears my signature. Its contents are true. It is at Ex.24. It also bears thumb impression of Kishor Pidurkar. Injury can be caused due to blow of knife Art "A" which is now shown to me."
14] The learned Sessions Judge has convicted the accused for offence punishable under section 335 of IPC on the premise that the accused was provoked in assaulting the injured Kishor and has sentenced the accused to suffer rigorous imprisonment for three years. The scaling down of offence from section 307 of IPC, with which the accused was charged, to section 335 instead of section 326 is debatable since there is no cogent material on record to suggest any provocation, much less a provocation in close proximity with the assault. Be that as it may, since the State has accepted the judgment of the learned Sessions Judge, I refrain from making any further observation.
15] The appeal is sans merit and is dismissed.
16] The bail bond of the accused shall stand cancelled. ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 ::: apeal296.08.J.odt 11 17] The accused be taken into custody to serve the sentence and a compliance report be submitted to the Registry of this Court within two weeks.
JUDGE NSN ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:47:31 :::