apeal571of08.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.571 OF 2008
Shri. Gajanan Kisanrao Bhure,
Aged about 38 years,
Occupation Agri
R/o. Gurudev Nagar, Tahsil Tiwasa,
District Amravati ......APPELLANT
...V E R S U S...
The State of Maharashtra,
through PSO Tiwasa,
District Amravati .... RESPONDENT
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Ms. Suvarna P. Kulkarni, Advocate (appointed) for Appellant.
Ms. Ritu Kalia, Additional Public Prosecutor for Respondent
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CORAM: ROHIT B. DEO, J.
DATE: th
13 DECEMBER, 2017.
ORAL JUDGMENT
The appellant is aggrieved by the judgment and order dated 10.07.2008 passed by the Sessions Judge, Amravati in Sessions Trial 1 of 2006, by and under which, the appellant is convicted for offence punishable under section 307 of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs. 1000/- ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:25 ::: apeal571of08.odt 2 and is further convicted of offence punishable under sections 324 and 353 of IPC and is sentenced to suffer rigorous imprisonment for six months.
2 Heard Smt. Suvarna P. Kulkarni, the learned counsel for the appellant and Smt. Ritu Kalia, the learned Additional Public Prosecutor for the respondent.
3 The genesis of the prosecution lies in oral report lodged by one Ajay Ramdharsingh Chavan on 1.11.2005 alleging that the appellant (hereinafter referred as "the accused") assaulted Ramdas Raibole with a knife and bit the informant on the right shoulder.
The gist of the oral report, which is Exh. 36 on record of the trial Court, is that the informant was then serving as a Talathi, he was on duty at the Gurudeo Nagar Talathi office on 1.11.2005. A colleague Ramdas Raibole detected one tractor carrying sand without licence. The said tractor was seized and brought at the office of the informant. Ramdas was in the process of preparing the seizure panchanama, the panchas signed on the seizure panchanama, the accused requested Ramdas Raibole to release the tractor which request was turned down, annoyed, the accused ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:25 ::: apeal571of08.odt 3 whipped out a knife with iron blade from pocket and assaulted Ramdas Raibole on the neck. Ramdas suffered injury below the left ear. The informant and two others apprehended the accused, one Umesh Khadse a friend of the accused came to the rescue of the accused. Umesh Khadse caught hold of the informant and the accused bit informant on the right shoulder. The oral report was reduced to writing and the printed First Information Report is Exh. 37.
4 On the basis of the oral report Police Station Tiwasa registered offence against the accused and one Umesh Khadse under sections 353, 307 and 324 read with section 34 of IPC. 5 The completion of investigation culminated in submission of charge sheet in the Court of Judicial Magistrate First Class, Chandur Railway, who committed the case to the Sessions Court. The learned Sessions Judge framed charge at Exh. 24, the accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused is of false implication. Response to question 25 in the statement recorded under section 313 of the Code of Criminal Procedure would reveal that the defence of the accused is that PW 1 Ajay Chavan and PW 2 Ramdas Raibole ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:25 ::: apeal571of08.odt 4 demanded bribe, the accused did not oblige and therefore, the false implication.
6 The informant Ajay Chavan is examined as PW 1. The evidence of PW 1 is broadly consistent with the contents of the First Information Report. He deposed that the accused refused to sign the panchanama, took out a knife and assaulted PW 2 Ramdas Raibole with knife on the left side of the neck. Nothing is brought on record in the cross-examination to discredit the testimony of PW 1.
PW 2 - Ramdas Raibole is an injured witness. He has deposed that the accused assaulted him on left neck with knife, he suffered bleeding injury, the accused was apprehended by PW 1 and one Makarampure. The witness denies the suggestion that there was a quarrel between witness and some other persons and in the scuffle, he suffered injury. The evidence of PW 2, who is an injured witness, must be placed on a higher pedestal than that of other witnesses. The fact that the witness suffered injury lends assurance to the case of the prosecution that he was indeed present on the scene of occurrence. Moreover, an injured witness is not in normal circumstances likely inculpate the innocent and exculpate the guilty.
::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:25 ::: apeal571of08.odt 5 7 The evidence of PW 1 and PW 2 is corroborated by evidence of PW 3 - Pandurang Makarampure who has testified that accused assaulted PW 2 - Ramdas Raibole with knife on the left side neck. I have no hesitation in relying on the evidence of PW 1, PW 2 and PW 3 to hold that the prosecution has established beyond reasonable doubt that the accused did indeed assault PW 1 and PW 2.
8 However, I am not persuaded to agree with the finding recorded by the learned Sessions Judge that the prosecution has proved the commission of offence punishable under section 307 of IPC. Concededly, in the spur of moment a single blow was inflicted. The nature and extent of injury and the medical treatment received is blurred. The injured PW 2 was initially treated at Gurudeo Ayurvedic Hospital, Mozari by PW 4 - Dr. Murlidhar Kharode. Dr. Kharode has deposed that PW 2 suffered injury below the left ear of size 3 inch x 2 inch which was stitched and the injured referred to Civil Hospital, Amravati. Pertinently, the injury certificate Exh. 46 is silent on every material aspect. The depth of the injury is not mentioned. The only material statement in the certificate is that the injury was stitched. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:25 ::: apeal571of08.odt 6 It is not mentioned in the certificate as to whether the injury was grievous or simple. The injured PW 2 was thereafter admitted to Civil Hospital, Amravati. I have perused the medical treatment papers produced on record. The treating doctor Karan Wathodkar is examined as PW 7, who claims to have detected two stitched injuries on the left ear and below the left ear. Concededly, the said witness has not internally examined the injury and the injuries, if at all there were two injuries, were already stitched when PW 2 was admitted in the hospital. The prosecution has made no attempt to elicit from the said witness as to what was the nature and extent of the injury suffered. The medical case record placed on record (Exh. 92) would reveal that the injured was admitted in the hospital from 1.11.2005 to 8.11.2005. However, medical treatment papers pertain only to period 1.11.2005 to 3.11.2005. It is clear that prosecution has made no any attempt to prove, the nature or extent of injury and the treatment received. 9 It is true that the nature and extend of injury is not decisive in determining whether the accused did have intention to cause death. However, in the factual matrix, I do not find any evidence to suggest that the injury was inflicted by the accused either with the intention to cause death or with the knowledge ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:25 ::: apeal571of08.odt 7 that by his act death may be caused.
10 The conviction under section 324 for having bitten PW - 1 on the shoulder needs to be scaled down to one under section 323 of IPC. For having assaulted and an injured PW 2 - Ramdas, the accused can be convicted only for offence punishable under section 324 of IPC.
11 In the light of the discussion supra, while upholding the conviction under section 353 of IPC, I set aside the judgment and order impugned to the extend the accused is convicted for offence punishable under section 307 for having assaulted PW 2 - Narayan Raibole and instead convict the accused under section 324 of IPC, and under section 323 of IPC for the assault on PW - 1 informant.
12 The incident took in the heat of moment and 12 long years ago. By order dated 22.11.2017, I called for report of the District Probation Officer under section 4 of the Probation of Offenders Act, 1958. The report submitted by District Probation Officer, Amravati is taken on record and marked Exh. 'X' for identification. The District Probation Officer has recommended ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:25 ::: apeal571of08.odt 8 that the accused be released on probation. I am inclined to agree.
Instead sentencing the accused to prison, he is granted the benefit of probation for offences punishable under section 323, 324 and 353 of IPC. The accused to execute bond to appear and receive sentence when called upon during the period of one year and shall keep peace, and be of good behaviour in the meantime.
Appeal is partly allowed in the above terms.
The fees of the appointed counsel are quantified at Rs. 5000/-
JUDGE RS Belkhede,PA ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:53:25 :::