apeal494.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.494 OF 2004
Vijay s/o Manohar Pohekar,
Aged about 22 years,
Occu: Business,
R/o Gandhinagar, Wardha,
Tahsil and District Wardha. ....... APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Police Station, Wardha. ....... RESPONDENT
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Shri J.M. Gandhi, Advocate for Appellant.
Shri Ashish Kadukar, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
15 DECEMBER, 2017.
ORAL JUDGMENT
1] Challenge is to the judgment and order dated
14.07.2004 passed by the 2nd Ad-hoc Additional Sessions Judge, Wardha in Sessions Trial 81/1999, 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 ::: Uploaded on - 16/12/2017 ::: Downloaded on - 19/12/2017 01:43:09 ::: apeal494.04.J.odt 2 Rs.500/-. The two co-accused who faced trial, Shankar s/o Vasantrao Shende and Pravin s/o Shankarrao Bhoyar are acquitted of offence punishable under section 305 read with section 34 of the IPC.
2] Heard Shri J.M. Gandhi, the learned counsel for the appellant and Shri Ashish Kadukar, the learned Additional Public Prosecutor for the respondent/State.
3] The case of the prosecution is that the appellant (hereinafter referred to as 'the accused') the co-accused who faced trial Shankar Shende and Pravin Bhoyar and an absconding accused Mohan Deulkar assaulted the injured Danny @ Nilesh Charade with sword. The incident occurred on 27.01.1999. Injured Nilesh and his friends went to the Adiwasi colony, Wardha on hearing the news that a woman was burnt in the said colony. The injured along with Mohan Hinge and Gajanan Sahare then proceeded to the house of Gajanan Sahare. One Kishor Kumbhare met them on way. Injured Nilesh talked with Kishor Kumbhare and then sat down on the foot-steps of the grocery shop of one ::: Uploaded on - 16/12/2017 ::: Downloaded on - 19/12/2017 01:43:09 ::: apeal494.04.J.odt 3 Navnath. The four accused who were passing by the road assaulted injured Nilesh. The accused Vijay Pohekar assaulted Nilesh by inflicting a sword blow on the head.
4] The case of the prosecution is that the friends of the injured informed his mother Vimalbai Charade (P.W.7) who rushed to the Police Station and lodged report (Exh.102) on the basis of which offence punishable under section 307 read with section 34 of the IPC came to be registered against the accused (Exh.122). The accused Vijay Pohekar went to the Police Station carrying sword which had blood stains and the said sword was seized vide (Exh.123). The Investigating Officer prepared the spot panchnama (Exh.124) and seized the sample of the blood smeared earth (Exh.125) and recorded the statement of the witnesses. The injured Nilesh Charade was medically examined on 27.01.1999 by P.W.3 Dr. Shailaja Kale who noticed three injuries on his person. The report of the medical examination is Exh.65. The injured was then referred to Government Hospital, Nagpur, P.W.4 PSI Shri Nemade visited the Government Hospital, Nagpur to record the statement of the injured, however, the ::: Uploaded on - 16/12/2017 ::: Downloaded on - 19/12/2017 01:43:09 ::: apeal494.04.J.odt 4 injured stated that he was not in the frame of mind or the physical state to give a statement. However, according to the Medical Officer the injured was fit to give the statement. The culmination of the investigation led to submission of charge-sheet in the Court of Chief Judicial Magistrate, Wardha who committed the case to the Sessions Court, Wardha. The Sessions Court framed charge under section 307 read with section 34 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The defence is of total denial and false implication. 5] One of the accused Mohan Deulkar was declared absconder and his trial was separated from that of the other accused. The learned Sessions Judge, by the judgment and order impugned was pleased to acquit the Shankar Shende and Pravin Bhoyar and to convict the accused under section 307 read with section 34 of the IPC.
6] Shri Gandhi, the learned counsel for the accused would submit that the conviction is substantially, if not entirely, based on the evidence of the injured Nilesh (P.W.8) who states ::: Uploaded on - 16/12/2017 ::: Downloaded on - 19/12/2017 01:43:09 ::: apeal494.04.J.odt 5 that the accused inflicted a sword blow on his head. The evidence of the injured must be discarded as only unreliable, is the submission.
7] Per contra, Shri Kadukar, the learned A.P.P. would support the judgment and order impugned, although the learned A.P.P. fairly does not dispute the submission of the learned counsel for the accused that the only evidence on which the prosecution is heavily relying is that of the injured Nilesh (P.W.8). 8] It would be apposite to first analyze the evidence of the injured Nilesh who is examined as P.W.8. It is well settled that ordinarily the evidence of an injured witness must be given due weight. It is not a normal human conduct for an injured to inculpate the innocent and to exculpate the guilty. However, this is not a immutable rule of evidence.
9] Be it noted, that the information of the assault on the injured was conveyed to the informant P.W.7 by the two friends of the injured, Gajanan Sahare and Manoj Hinge, who have not been ::: Uploaded on - 16/12/2017 ::: Downloaded on - 19/12/2017 01:43:09 ::: apeal494.04.J.odt 6 examined for the reasons only known to the prosecution. The First Information Report does not name the accused. The First Information Report names the co-accused Shankar Shende and Pravin Bhoyar and two others. The accused is named for the first time 18 days after the incident in the statement of the injured Nilesh which was recorded on 15.02.1999.
It is not as if the injured was not in a fit condition to give the statement. The evidence of one of the Investigating Officer P.W.4 Rajabhau Nemade is that he visited the Medical College and Hospital, Nagpur to record the statement of the injured on 01.02.1999. The Medical Officer certified that the injured Nilesh is fit to give the statement. The certificate was issued after examining the injured Nilesh. Pertinently, it is elicited from P.W.4 in the cross-examination that the injured talked with the witness for 5 to 7 minutes. As a fact, although the injured Nilesh refused to give a statement about the incident, he did give a statement on 01.02.1999 (Exh.68) which is to the effect that since he is not feeling well he is not in a position to state anything regarding the incident.
::: Uploaded on - 16/12/2017 ::: Downloaded on - 19/12/2017 01:43:09 ::: apeal494.04.J.odt 7 10] The prosecution examined one Sandeep s/o Bholaprasad Trivedi (P.W.1) and one Sanjay s/o Bholaprasad Tribedi (P.W.2) as eye witnesses to the incident. Both did not support the prosecution, were declared hostile and cross-examined by the learned A.P.P. Nothing is elicited in the cross-examination to assist the prosecution. I have already noted that the friends of the injured who informed the mother of the injured (P.W.7) about the incident have not been examined. The version of the prosecution that the accused came to the Police Station with a sword which had blood stains must be discarded as absolutely unreliable. Both the panchas to the seizure of the sword on production by the accused P.W.5 Ramesh s/o Ajabrao Jambhulkar and P.W.6 Ashok s/o Ghansham Mankar did not support the prosecution. The learned Sessions Judge has held that the seizure of the sword from the accused is proved by P.W.10 Pundlik s/o Motiram Patil who was the duty officer at City Police Station on 27.01.1999. In the examination in chief, P.W.10 states thus :-
At the relevant time accused Vijay Pohekar had been to the police station. He was having a sword having blood stains. I called two panchas. I seized the said sword in presence of panchas. Panchanama shown ::: Uploaded on - 16/12/2017 ::: Downloaded on - 19/12/2017 01:43:09 ::: apeal494.04.J.odt 8 to me is the same. It bears my signature, signatures of panchas and accused Vijay Pohekar. Contents of it are true and correct. It is at Ex.123.
11] In view of the fact that both the panchas have not supported the prosecution, and in view of the attending circumstances, it would be extremely unsafe to hold the seizure of the sword proved. The solitary statement of P.W.10 Police Station Officer that the accused walked in the Police Station with the sword, is not confidence inspiring.
12] It is evident, and in all fairness the learned A.P.P. is not submitting to the contrary, that the only evidence or incriminating circumstance against the accused is the evidence of P.W.8 that the accused inflicted a sword blow on his head. I am not inclined to accept the evidence of P.W.8, although he is an injured witness, as implicitly reliable or trustworthy. The explanation for not having given a statement on 01.02.1999 when P.W.4 Police Officer, having obtained a fitness certificate from the Medical Officer, made an enquiry with the injured, is hardly satisfactory and must be discarded. The Medical Officer ::: Uploaded on - 16/12/2017 ::: Downloaded on - 19/12/2017 01:43:09 ::: apeal494.04.J.odt 9 certified P.W.8 injured fit to give the statement. The injured did give a statement to the effect that he was not in a position to talk about the incident, since he was not feeling well. P.W.4 admits that he had a talk with the injured for 5 to 7 minutes. Nothing prevented the injured from disclosing the name of the accused. The fact that the name of the accused is disclosed by the injured only on 15.02.1999 renders the evidence of P.W.2 unworthy of acceptance. If the evidence of the injured is kept out of consideration, there is no evidence on record to prove the guilt of the accused, much less to prove the guilt beyond reasonable doubt.
13] The judgment and order impugned is unsustainable and is set aside.
14] The accused is acquitted of offence punishable under section 307 read with section 34 of the IPC.
15] The bail bond of the accused shall stand discharged. ::: Uploaded on - 16/12/2017 ::: Downloaded on - 19/12/2017 01:43:09 ::: apeal494.04.J.odt 10
16] The fine paid by the accused, if any, shall be refunded.
17] The appeal is allowed.
JUDGE
NSN
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