1 apeal52.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.52/2003
Ramchandra s/o Kawadu Kumbhale,
aged 25 years, Occ. Labourer,r/o Chicholi
Khaparkheda (Ward No.1) Dist. Nagpur
(At present Central Jail, Nagpur.) .....APPELLANT
...V E R S U S...
The State of Maharashtra through
Police Station Officer, P. S. Khaparkheda,
Dist. Nagpur. ...RESPONDENT
-------------------------------------------------------------------------------------------
None for the appellant.
Mr. N. B. Jawade, A.P.P. for respondent-State.
-------------------------------------------------------------------------------------------
CORAM:- V. M. DESHPANDE, J.
DATED :- 20.07.2017 ORAL JUDGMENT
1. This appeal is directed against the judgment and order of conviction passed by the learned 1 st Ad hoc Additional Sessions Judge, Nagpur dated 16.12.2002 in Sessions Trial No.576/2001 convicting the appellant for an offence punishable under Section 394 of the Indian Penal Code and directing to suffer sentence of 5 years and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for 2 months.
This appeal was admitted by this Court on 25.02.2003 and on the said day, this Court granted bail to the appellant. ::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 :::
2 apeal52.03.odt
2. This appeal was taken up for final hearing on 19.07.2017. Counsel for the appellant was absent. Since the appeal is old and was pending for more than 10 years, this Court proceeded with the hearing with the assistance of the learned A.P.P. In order to give one chance to the appellant and his counsel, the matter was kept part heard on 20.07.2017. However, nobody appeared on behalf of the appellant.
3. A charge was framed against the appellant in Sessions Case No.576/2001 that the appellant and co-accused Ganpat Marbate on 13.05.2001 at about 3.15 to 4.00 p.m. with common intention robbed Sevakram Thakare (PW2) and snatched Rs.100/- from him and while committing the robbery they used deadly weapon, knife to cause grievous injury to Sevakram and thereby they committed an offence under Section 397 read with Section 34 of the IPC.
4. An FIR was lodged by Gunvant Thakare (PW1) son of the injured on 14.05.2001, it is at Exh.-45. As per the said report, the injured Sevakram is in service of the MSEB at Khaparkheda and resides at village Suradevi. The first informant works for ::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 ::: 3 apeal52.03.odt Sanchayani company at Buldhana and he used to visit his house once in a month.
As per the FIR on 13.05.2001 at 6.30 in the evening when he came to his house at Suradevi from Buldhana, his mother Rajasbai informed him that on 13.05.2001 at about 3.15 p.m. when his father started from his house for attending his duty, three unknown persons obstructed him beyond river Kolar and made a demand of money on the point of knife and on non payment of money, his father was given a beating by those three persons. His father received injuries on abdomen and is admitted in the hospital of Dr. Ratan Roy at Kamptee. On getting such an information, the first informant reached to the hospital. Thereafter, he went to the spot of occurrence and made an inquiry and he came to know that the spot of occurrence is within the jurisdiction of Police Station Khaparkheda. Therefore, he went to Police Station Khaparkheda and lodged a report.
5. At the time of lodging of the report, Gajanan Ramchandra Kankale (PW13) was working as Police Sub Inspector in Police Station, Khaparkheda. He investigated Crime No.63/2001. He recorded statement of the injured on 14.05.2001. ::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 :::
4 apeal52.03.odt he gave a requisition Exh.-17 to Dr. Roy Hospital at Kamptee for injury certificate. Dildar, another son of the injured brought the clothes of the injured to Police Station. Those were seized under the seizure panchanama Exh.-50. On 16.05.2001, he recorded the statement of Rajasbai Thakare. Also supplementary statement of complainant and one Indubai Virkhare. On the basis of the statements of the witnesses, the Investigating Officer got lead about the culpability of the crime by the present appellant and therefore on 25.05.2001, he arrested the appellant under the arrest panchanama Exh.-41.
6. When the appellant was in Police Custody Remand on 27.05.2001, he made discovery statement in presence of panchas vide Exh.-71 and agreed to show the place where he has concealed the weapon. Accordingly, the police party was led by the appellant to a hut where one Krishnaji Bhoyar was staying. He went inside the said hut and took a knife from a big iron box and also a note of Rs.100/-. Those were seized under recovery panchanam Exh.-72. The clothes of the appellant were seized under seizure panchanama Exh.-55. He also arrested co accused Ganpat and Chandrashekhar, a juvenile.
::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 :::
5 apeal52.03.odt 7. On 31.05.2001, PSI Gajanan Kankale gave a
requisition to the Executive Magistrate for holding test identification parade. Accordingly, the test identification parade was held in which the appellant was identified by the injured as an assailant. He also received the injury certificate from Dr. Roy Hospital, Kamptee. After completion of further usual investigation, charge-sheet was presented.
8. After appreciation of the prosecution case, the learned Judge of the Court below acquitted the co-accused Ganpat and though the appellant was charged for the offence under Section 397 IPC, he recorded conviction for the lesser offence i.e. for the offence under Section 394 of the IPC.
9. I have heard Mr. N. B. Jawade, learned A.P.P. for the respondent in extenso. He took me through the entire evidence led by the prosecution in detail.
10. Though the prosecution has examined in all 13 witnesses, the entire case of the prosecution revolves around the evidence of Sevakram (PW2), Dr. Ratan Roy (PW12) in whose ::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 ::: 6 apeal52.03.odt hospital the appellant was admitted and he proved the injury certificate Exh.-65, Bharatlal Samune (PW10) is a witness on the test identification parade and Gajanan Nishankar (PW5) is Executive Magistrate who has conducted the test identification parade. The pancha witnesses have turned hostile.
11. The evidence of Dr. Ratan Rai shows that the injured Sevakram Thakare, resident of Suradevi was admitted in his hospital. Dr. Roy is a practicing surgeon having Dr. Roy Surgical Home at Kamptee. He examined Sevakram to notice the following injuries:
"1. Stab wound, aged sharp, clean margins and fresh bleeding was there. 2 inch X ½ inch X plural cavity deep on right 7th inter costal space.
2.1) Incised wound, right lower loge of lung abotu 3 cm. X 1 cm.
2) On right wall of pericordium, incise wound of ½ cm X ½ cm.
3) Incise wound of 2 inches X ½ inches on right domb of diaphragm.
4) Incise wound 3 inches X ½ inches over superior posterior aspect of right lobe of liver."
He issued injury certificate Exh.-65. As per the evidence of Dr. Roy, the injuries were not only grievous in nature but those ::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 ::: 7 apeal52.03.odt were dangers to life. There is no cross-examination of Dr. Roy at the hands of the learned cross-examiner to disbelieve his version that the injuries were not grievous or were not dangerous.
12. Section 397 of the IPC deals with robbery or dacoity with an attempt to cause death or grievous hurt. In my view, the learned Judge of the Court below has committed mistake in not brining the case for the offence punishable under Section 397 of the IPC on the premise of Section 320 IPC which gives the definition. According to the learned Judge of the Court below, the injured was admitted only for a period of 15 days and Section 320 of the IPC speaks the admission of injured for a period of 20 days. Section 320 reads as under:
"320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye. (Thirdly) -- Permanent privation of the hearing of either ear. (Fourthly) --Privation of any member or joint. (Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face. (Seventhly) --Fracture or dislocation of a bone or tooth. (Eighthly) --Any hurt which endangers life or which causes ::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 ::: 8 apeal52.03.odt the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
Thus, in the eighth part, there are the words, "Any hurt which endangers life."
13. There is a concrete evidence available on record in the form of the evidence of Dr. Roy that the injuries were dangerous to life. Therefore, though there is no appeal from the State, by exercising my powers under Section 386 of the Cr. P. C., I set aside those observations made by the learned Judge in the impugned judgment.
14. Consequently, now whether the prosecution has proved that it is the appellant alone who is responsible for the grievous injuries appearing on the person of the injured.
15. The learned A.P.P. Mr. Jawade heavily relied on the testimony of Sevakram (PW2).
First informant is not an eye witness nor the injured has disclosed the incident to him.
::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 :::
9 apeal52.03.odt 16. The injured Sevakram is examined as PW2. His
evidence shows that he was serving at MSEB, Khaparkheda and he is resident of Suradevi and in the month of May, 2001 at about 3.30 p.m. he was going to Khaparkheda on his bicycle to attend his duties. When he reached near Kolar river, 3 persons stopped him and started assaulting him. They demanded money from him. He was not having any money. Therefore they searched his pockets. He further deposed that one of them thereafter took out a knife and gave a blow on his abdomen resulted into bleeding. His version is duly corroborated by the medical evidence. It is further evidence of Sevakram that there were Rs.100/- in his pocket. They took the said amount. He then tied one scarf and reached to Khaparkheda MSEB premises. There he went to the hospital of MSEB. Thereafter he was referred to hospital at Kamptee where he became unconscious. As per his evidence he was an indoor patient for about 15 days.
17. As per the evidence of the injured Sevakram, after one month of the incident he was taken to Central Jail for test identification parade. That test identification parade was held by Gajanan Nishankar (PW5) the Executive Magistrate in presence of ::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 ::: 10 apeal52.03.odt pancha Bharatlal (PW10). Test identification parade was held on 16.06.2001 at 11.30 a.m. Exh.-47 is identification memorandum panchanama, which shows that during the test identification parade, the present appellant was identified by the injured.
18. In the backdrop of the test identification parade in which the appellant was identified by the injured, the Court will have to scrutinize the evidence of the injured as to whether at the time of assault on him there was an ample opportunity to the injured to see the assailant closely to recognize the assailant at the subsequent stage.
19. The evidence of injured Sevakram Thakare nowhere claims in his evidence that he was knowing the appellant previously. His evidence also does not show that at the time of incident, he watched the appellant carefully. In the cross- examination Sevakram has stated as under:
"I had seen the two of the appellants properly and there mouths were covered by handkerchief. I had only seen their eyes of those two persons whose faces were covered by handkerchief."::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 :::
11 apeal52.03.odt From his aforesaid evidence it is clear that the faces of the appellant were covered with handkerchief and only their eyes were visible. In his evidence he has not stated that the eyes of the assailant were remarkably distinct by which he could remember the person only by noticing the eyes. Further, he has admitted that at the time of the test identification parade, no handkerchief was put on the person who were standing on the road. In the absence of any special reason, it would be very difficult to accept the version of the injured which he has made in the cross examination that he identified the appellant Ramchandra only seeing his eyes coupled with the fact that during the recording of the identification panchanama he did not state the Executive Magistrate that he could identify the appellant by seeing his eyes.
Except this piece of evidence there is no other connecting piece of evidence pointing finger of guilt against the appellant. Though the clothes of the appellant and the weapon were seized, the learned A.P.P. fairly states that from the record it is clear that it were not sent to the Chemical Analyzer. Therefore there is no CA report available on record.
::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 :::
12 apeal52.03.odt
20. In view of the aforesaid, though the prosecution has proved that Sevakram (PW2) received grievous injures on his person, there is no evidence to point out that it is only the appellant who could be attributed the authorship of the injures found on the persons of the injured Sevakram.
With the result, following order is passed:
ORDER
(i) Criminal Appeal No.52/2003 is allowed.
(ii) The judgment and order dated 16.12.2002 passed by 1st Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No.576/2001, thereby convicting the appellant for an offence punishable under Section 394 of the Indian Penal Code is quashed and set aside.
(iii) The appellant is acquitted of the offence punishable under Section 394 of the Indian Penal Code.
(iv) Bail Bond of the appellant stands cancelled.
(v) Muddemal property be dealt with as directed by the trial Court after the appeal period is over.
JUDGE kahale ::: Uploaded on - 24/07/2017 ::: Downloaded on - 08/08/2017 00:41:27 :::