1 apeal562.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 562 OF 2002
Dinanath Mahdu Sargar,
Aged about 46 years,
R/o Pokhari, Tq. Pusad,
District - Yavatmal. .... APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Pusad City. .... RESPONDENT
______________________________________________________________
Shri D.G. Patil, Advocate for the appellant,
Mrs. M.H. Deshmukh, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 25-09-2017
DATE OF PRONOUNCING THE JUDGMENT : 20-12-2017
JUDGMENT :
Exception is taken to the judgment and order dated 16-9-2002 passed by the learned 2nd Ad hoc Additional Sessions Judge, Pusad, in Sessions Trial 70/1998, by and under which the appellant Dinanath Sargar is convicted for offence punishable under Section 307 ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:16 ::: 2 apeal562.02 of the Indian Penal Code ("Act" for short) and is sentenced to suffer simple imprisonment for five years and to payment of fine of Rs.500/-. The co-accused Ramesh Sargar, Ganesh Sargar and Shivaji Sargar are acquitted.
2. The prosecution case, as is unfolded during the trial, is that the complainant injured Ramrao Sargar is the blood brother of appellant Dinanath (hereinafter referred to as the "accused"). Co-accused Ramesh and Shivaji are the cousins of the complainant and the accused, and co-accused Ganesh is the nephew of the complainant and the accused. The complainant had gone to Sheloo (Bu.) on 08-5- 1998 to attend a marriage. He had meals and then went to the house of one Panjabrao Maske to rest. Accused and co-accused came there, picked up a quarrel with the complainant and attempted to stab him with a dagger (jambia). One Krushnarao Markand rescued the complainant. The complainant then went to the bus stand, the accused chased him, accused 1 whipped out a dagger and stabbed the complainant on the abdomen multiple times. The complainant was rescued by one Raju Kaniram Chavan.
The complainant was brought to the police station in an auto-rickshaw, then referred to Rural Hospital, Pusad where a ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:16 ::: 3 apeal562.02 statement was recorded as dying declaration. The complainant was referred to the Yavatmal Hospital where he was admitted till 18-5-1998.
The spot panchanama was recorded, the dagger seized from accused Dinanath, the clothes of the complainant and the accused were seized, statements of witnesses were recorded and upon completion of the investigation charge-sheet was submitted in the court of the Judicial Magistrate First Class, Pusad who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge Exhibit 19 under Section 307 of the Indian Penal Code, the accused pleaded not guilty and claimed to be tried in accordance with law. The defence is of total denial. The accused Dinanath Sargar also took a defence that he is falsely implicated due to previous enmity. The complainant had assaulted the accused with sword and a prosecution was pending, was the submission of the accused. The accused also stated that a civil litigation is pending between the complainant and the accused in relation to a property dispute.
3. Shri D.G. Patil, learned Counsel for the accused submits that the judgment of conviction is against the weight of the evidence on record. The defence of false implication is more than probablised on ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:16 ::: 4 apeal562.02 the touchstone of preponderance of probabilities, is the submission. Shri D.G. Patil, learned Counsel would submit that the prosecution failed to examine witnesses who were named by the injured complainant in the statement which was then recorded as a dying declaration. P.W.6 Raju Chavan is a got up witness, is the submission. The seizure of the knife and the clothes of the accused is attacked as untrustworthy since the panch witnesses did not support the prosecution.
4. Per contra, Mrs. M.H. Deshmukh, learned Additional Public Prosecutor would submit that the judgment impugned does not suffer from any infirmity.
5. The most important witnesses from the perspective of the prosecution are P.W.5 Ramrao Sargar, the complainant and P.W.6 Raju Chavan who has deposed that he witnessed the assault.
P.W.5 Ramrao is an injured witness and his evidence deserves to be given due weightage. It is true that the previous enmity between the complainant and the accused is brought on record by the defence. However, the evidence of the injured witness cannot be viewed with suspicion only because the injured witness and the accused ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:16 ::: 5 apeal562.02 had inimical relations. Previous enmity is a double edged sword which can be a motive for the assault or reason for false implication.
The evidence of the injured complainant is confidence inspiring. He has described with reasonable particularity the role played by the accused. The injured witness has attributed the assault with the dagger to the accused. The report is lodged immediately and the evidence is broadly consistent with the said report. He has deposed that since he took possession of the land from which he was illegally dispossessed by the accused, through the process of law, his relations with the accused turned sour. The accused assaulted his son causing fracture which was the starting point of the enmity, is the deposition. The testimony of the injured witness is not seriously shaken in the extensive and gruelling cross-examination. However, it is brought on record that he knew Raju Chavan (P.W.6) since he met the said witness in the house of one Manohar Naik. This admission is relied upon by the defence to contend that P.W.6 Raju is an introduced witness since he claims not to be knowing the complainant injured before the assault. The evidence of the said witness must indeed be taken with a pinch of salt. The inconsistency between the evidence of the injured complainant who asserts that he did know P.W.6 Raju before the incident and that of the evidence of P.W.6 Raju who claims that he did ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:16 ::: 6 apeal562.02 not know the complainant before the incident, is significant. Moreover, P.W.6 Raju has identified the accused as the person who was assaulting the complainant with knife, for the first time in the Court. I am inclined to agree with the submission of the learned Counsel for the accused that the evidence of P.W.6 Raju must be kept out of the consideration as unreliable.
6. However, the evidence of P.W.5, the injured complainant is sufficient to satisfy the conscious of this Court that the accused is rightly convicted for offence punishable under Section 307 of the Indian Penal Code. A substantial part of the cross-examination of P.W.5 is directed at suggesting strained relationship between the injured complainant and his son Nandu and the suggestion is that it was Nandu who assaulted the complainant and the accused is falsely implicated. The defence, highly improbable as the defence is, is not probablised even on the touchstone of preponderance of probabilities,. A few statements are shown to be omissions. But then, they do not touch the core and relate only to peripheral aspects of the incident.
7. The statement Exhibit 71 which was recorded by the Executive Magistrate as a dying declaration, would be akin to a ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:16 ::: 7 apeal562.02 statement under Section 164 of the Criminal Procedure Code and the learned Sessions Judge has observed that the said statement could be used for the purpose of corroborating the evidence of the injured complainant. Having so done, the learned Sessions Judge has recorded a finding that the contents of Exhibit 71 corroborate the testimony of the injured complainant to the hilt.
8. I see no reason to take a different view.
9. The fact that the accused came prepared to assault the complainant armed with dagger, the manner in which the assault took place, the nature of the weapon and the nature and extent of the injuries cumulatively prove that the intention of the accused was to cause death and there is no infirmity in the finding recorded by the learned Sessions Judge that the accused is liable to be convicted under Section 307 of the Indian Penal Code.
10. The appeal is sans merit and is rejected.
The bail bond of the accused shall stand cancelled and he be taken into custody to serve the sentence.
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8 apeal562.02 The accused is entitled to set-off under Section 428 of the Criminal Procedure Code.
The Superintendent of Police, Yavatmal to submit the compliance report in the registry of this Court within fifteen days, failing which the disposed of appeal shall be listed under the caption order matters for passing appropriate orders.
JUDGE adgokar ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:17:16 :::