Judgment
apeal121.15 2
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.121 OF 2015
Arun s/o Tanbaji Dudhe, (In jail)
Aged about 48 years, Occupation - Labour,
R/o Zinguji Ward, Bhadrawati,
Tahsil Bhadrawati, District Chandrapur. ..... Appellant.
:: VERSUS ::
State of Maharashtra,
Through its Police Station Officer,
Police Station Bhadrawati,
Tahsil Bhadrawati, District Chandrapur. ..... Respondent.
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Ms Sulbha B. Saikhede, Counsel for the appellant.
Shri R.S. Nayak, Addl.P.P. for the respondent/State.
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CORAM : V.M. DESHPANDE, J.
DATE : JULY 4, 2017. ORAL JUDGMENT
1. Being aggrieved by judgment and order of conviction passed by learned Additional Sessions Judge, Warora in Sessions Case No.38 of 2011 dated 12.1.2015 by .....2/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 2 which the appellant is convicted for the offence punishable under Section 307 of the Indian Penal Code and is directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo rigorous imprisonment for 6 months.
2. The prosecution case, as it was disclosed during the course of Trial, is stated herein under:
PW9 a Teacher Sunil Namdeorao Bawane reached to Bhadrawati Police Station on 14.8.2011 at 19:40 hours. That time, PW11 Assistant Police Inspector Vijaykumar Jamnaprashad Tiwari was attached to Bhadrawati Police Station. PW9 Sunil informed about assault at Zinguji Ward. PW11 Vijaykumar immediately took the said information in a station diary vide Entry No.33 and proceeded to the spot of incident along with police staff.
.....3/-
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3. When PW11 Assistant Police Inspector Vijaykumar reached to the spot at Zinguji Ward, he was informed that injured is shifted to Shinde Hospital. On getting such information, PW11 Vijaykumar visited Shinde Hospital where treatment on injured was going on. On reaching to Shinde Hospital, PW11 Vijaykumar gave a requisition Exhibit 31 to the medical officer, who was present in the said hospital, as to whether injured is in a position to give his statement. PW2 Dr. Vivek Naikantrao Shinde of Shinde Hospital examined the patient and found that the patient was able to give his statement. Thereafter, PW11 Vijaykumar recorded a statement of PW1 injured Ishwar Tanbaji Dudhe in presence of PW2 Dr. Shinde.
4. As per the statement of PW1 injured Ishwar, which is available at Exhibit 23, he retired as a Charge-man Grade-I from Ordnance Factory at Bhadrawati in the month of August .....4/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 4 2009. A residential house, in the name of his mother, is situated at Zinguji Ward. His parents are dead. They are four brothers. PW1 injured Ishwar eldest one. The youngest is appellant accused Arun Dudhe. He stated before the police officer, while recording his statement, that appellant accused Arun Dudhe is a criminal. He committed murder of his father- in-law Ramdas Khobragade and for that he suffered life imprisonment. It is also stated in the statement by PW1 injured Ishwar that prior to six months of the incident, appellant accused Arun Dudhe was released from jail after completing about 20 years of imprisonment. Thereafter, one room was provided to him for his residence. He is habituated to drinking and is a quarrelsome person. It is also stated in statement Exhibit 23 that on 14.8.2011 when PW1 injured Ishwar returned to his house at 4:00 O'clock and then stepped outside his house at 6:00 O'clock and when returning, .....5/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 5 appellant accused Arun Dudhe assaulted on him by means of a spade on his head. Thereafter, accused Arun Dudhe ran away. It is stated in the statement that on account of partition, he was assaulted.
5. After recording statement, PW11 Assistant Police Inspector Vijaykumar returned to the police station along with medical examination report of PW1 injured Ishwar. PW11 Vijaykumar, thereafter, on the basis of statement of PW1 injured Ishwar registered crime vide Crime No.168 of 2011 for the offence punishable under Section 307 of the Indian Penal. The printed FIR is at Exhibit 60.
6. The accused was arrested under panchanama Exhibit 62 in the night hours. On the next day of incident, PW11 investigating officer Vijaykumar visited the spot of incident which was shown by PW7 brother of injured Bharat Tanbaji Dudhe. The spot panchanama was drawn in presence of panchas. One of them was examined as PW8 .....6/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 6 Shankar Vishwanath Thakre. The spot panchanama is at Exhibit 52. From the spot of the incident, the investigating officer collected simple as well as blood mixed soil under seizure memo Exhibit 64. The clothes of PW1 injured Ishwar were also seized from he Shinde Hospital under seizure memo Exhibit 25.
7. During the investigation, it was also revealed to PW11 investigating officer Vijaykumar that after assault on PW1 injured Ishwar, appellant Arun Dudhe hit spade to one PW3 Sundarabai Hari Bawne. Therefore, PW11 investigating officer Vijaykumar sent said PW3 Sundarabai for her medical examination by requisition Exhibit 41.
8. During police custody remand, appellant accused Arun Dudhe gave his memorandum statement Exhibit 65 thereby he agreed to show the place where he has concealed the weapon i.e. spade. The said voluntary statement was recorded in the presence of panchas. Exhibit 65-A is a recovery panchanama of spade which was recovered .....7/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 7 at the behest of accused Arun Dudhe. The clothes of accused Arun Dudhe were also seized under seizure memo Exhibit 37-A. PW11 investigating officer Vijaykumar also sent the weapon to the Rural Hospital at Warora vide his query letter Exhibit 44. Since the MLC was done by Dr. Shinde, the spade was sent to Dr. Shinde Hospital under requisition letter Exhibit 32. Dr. Shinde gave his report Exhibit 32-A by which he opined that the injuries suffered by PW1 injured Ishwar, as mentioned in the MLC, are possible by such a weapon. PW11 investigating officer Vijaykumar also sent all Muddemal properties to the chemical analyzer. After completion of the entire investigation, charge-sheet was filed.
9. Learned Sessions Judge Warora, after the case was committed to the said Court, framed charge against appellant accused Arun Dudhe for the offence punishable under Section 307 of the Indian Penal Code. Appellant accused Arun Dudhe denied the charge and claimed for his Trial. In all 11 witnesses were examined by the .....8/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 8 prosecution to bring home the guilt of the appellant. So also, the prosecution relied on various documents which were proved during the course of Trial. After a full dressed Trial, learned Judge of the Court below recorded a finding that the prosecution has successfully brought the guilt of the appellant to home and hence appellant accused Arun Dudhe was convicted under Section 307 of the Indian Penal Code.
10. I have heard learned counsel Ms Sulbha Saikhede appointed for the appellant and learned Additional Public Prosecutor Shri R.S. Nayak for the State. With the assistance of these learned counsel, I have gone through the record and proceedings and also notes of evidence.
11. Learned counsel Ms Sulbha Saikhede for the appellant submits that that the prosecution has not proved the motive since nothing is brought on record by the prosecution about partition of residential house. She further submitted that appellant accused Arun .....9/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 9 Dudhe is falsely implicated in the crime at the behest of PW1 injured Ishwar and PW7 his brother Bharat. She submitted that injuries suffered by PW1 Ishwar are not caused by the appellant but those are accidental one as injured was under the influence of liquor and for that she has invited my attention to the evidence of PW2 Dr. Vivek Naikantrao Shinde.
12. Per contra, learned Additional Public Prosecutor Shri R.S. Nayak for the State submitted that the evidences of PW1 injured Ishwar, independent witness PW3 Sundarabai, and PW9 Sunil clearly show that the appellant is responsible for the injuries and hence he prayed for dismissal of the appeal.
13. PW1 injured Ishwar was brought to the hospital of PW2 Dr. Vivek Naikantrao Shinde, who runs hospital known as Shinde Multi Specialist Hospital. On examination of PW1 injured Ishwar, he noticed the following injuries:
.....10/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 10 "1) lacerated wound on occipital region size 6x2x1 c.m. caused by hard and blunt object. Injury was grievous in nature.
2) lacerated wound on occipital region size 4x2x1 cm. caused by hard and blunt object. Injury bas grievous in nature.
3) Lacerated wound on midscalp region size 4x2x1 cm. caused by hard and blunt object. Injury was grievous in nature.
4) Lacerated wound on midscalp region 3x2x1 caused by had and blunt object. Injury was grievous in nature.
5) Lacerated wound on forehead region in inter cantonal regioin dorsal of nose size 6x2x1 caused by hard blunt object and grievous in nature.
6) Lacerated wound on right middle finger, size 2x1x1 cm. caused by hard and blunt object and injury simple in nature."
Injury certificate of PW1 injured Ishwar is available on record at Exhibit 24. As per the evidence of PW2 Dr. Vivek Shinde, .....11/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 11 first five injuries were grievous in nature and the age of injuries is less than 3 hours. PW2 Dr. Shinde also testified that in his presence statement of PW1 injured Ishwar was recorded by PW11 investigating officer Vijaykumar which was treated as an FIR. Looking to the evidence and injury certificate it is clear that PW1 injured Ishwar suffered 5 grievous injuries on the vital part of his body.
14. The weapon, which was attributed by PW1 injured Ishwar as a mean of assault on him, was a spade as it could be seen from his statement Exhibit 23. The said weapon is recovered at the behest of appellant accused Arun Dudhe. The said weapon was also sent to PW2 Dr. Shinde for its examination to give the opinion as to whether injuries, as found by him in Exhibit 24, can be caused by such a weapon. Exhibit 32-A, the opinion shows that injuries are possible by the said weapon.
15. Learned counsel Ms Sulbha Saikhede for the appellant invited my attention to the portion of the cross-examination of PW2 Dr. .....12/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 12 Shinde in which he has stated that the patient was under the influence of liquor and if a person is under the influence of liquor and falls on face, such injuries are possible. She, therefore, submits that the appellant is falsely implicated. Though at the first blush this submission appears to be an attractive one, on closure scrutiny of the entire evidences brought on record this submission is required to be rejected.
16. The evidences of the prosecution have to be read as a whole and not in bits and pieces. The incident in question has occurred on 14.8.2011. The cross-examination of PW2 Dr. Shinde was done on 10.3.2014. Thus, PW2 Dr. Shinde was deposing after 2 and 1/2 years. MLC report Exhibit 24 is dated 14.8.2011. The said contemporaneous document is totally silent that at the time of examination of injured, PW2 Dr. Shinde noticed that the patient was under the influence of liquor. On what basis, PW2 Dr. Shinde made a such statement in his cross examination that the patient was under the .....13/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 13 influence of liquor, is unascertainable. Had at the time of examination of PW1 injured Ishwar, PW2 Dr. Shinde noticed that PW1 Ishwar was under the influence of liquor, he must not have missed the said fact while preparing Exhibit 24. Not only that, PW11 investigating officer Vijaykumar immediately reached to the hospital. Had PW1 injured Ishwar under the influence of liquor, PW11 investigating officer Vijaykumar could have taken steps for his breathing test. In absence of all these things, I am not prepared to accept the such statement made by PW2 Dr. Shinde in his cross-examination. Therefore, submission of learned counsel Ms Sulbha Saikhede for the appellant is required to be rejected.
17. Another submission of learned counsel for the appellant is, that the prosecution has not proved the motive. She submitted that in the report itself it is stated by PW1 injured Ishwar that on account of partition of a residential house he was attacked.
18. In the present prosecution case, apart from PW1 injured .....14/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 14 Ishwar, there is an eyewitness account. When the prosecution case consists of evidence of PW1 injured Ishwar and an eyewitness, motive loses its importance. The evidence of PW1 injured Ishwar is duly corroborated by the medical certificate Exhibit 24. Further, on getting information from PW10 Khushbu, PW7 Bharat and PW4 his wife Sunita reached to the spot of incident immediately where they noticed PW1 injured Ishwar was lying in a condition having injuries on his head. When they lifted PW1 injured Ishwar, it was disclosed to them by him that appellant was assaulted on him.
19. Sundarabai is also examined by the prosecution as its witness No.3. Her evidence shows that she knows the appellant. She was standing on the road. That time, she noticed that the appellant was beating his elder brother by spade and when she tried to intervene, she was also assaulted. Her nephew PW9 Sunil when came to his house, he noticed PW3 Sundarabai was weeping and the appellant was leaving the said place along with a spade. He also .....15/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 15 noticed thatPW1 injured Ishwar was lying in an injured condition.
20. PW3 Sundarabai was examined by PW6 Dr. Ravikiran Pore. He noticed that she is having injury on her right foot ankle. That corroborates the version of PW3 Sundarabai that she was assaulted on her right ankle by spade .
21. PW11 investigating officer Vijaykumar sent muddemal property to the chemical analyzer under requisition Exhibit 67. The clothes which were seized from the person of the appellant were found to be stained with human blood so also the spade was having stains of human blood. When this incriminating circumstance was put to the appellant when he was examined by learned Judge of the Court below under Section 313 of the Code of Criminal Procedure, he could not offer any explanation.
22. Evidence of PW1 injured Ishwar is found to be a natural and a trustworthy. His version is also duly corroborated by other .....16/-
::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:03:32 ::: Judgment apeal121.15 2 16 evidences available on record. The scientific evidence also shows the point of guilt towards the appellant.
23. Re-appreciation of the entire prosecution case leads me to pass the following order:
ORDER The criminal appeal is dismissed.
JUDGE !! BRW !! ...../-
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