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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.546 of 2003
...
Vasanta s/o Bhojraj Ghavghave,
Aged about 27 years,
Resident of Satefal,
Tahsil - Hinganghat,
District Wardha. .. APPELLANT
.. Versus ..
State of Maharashtra,
through Police Station Officer,
Hinganghat, Tah. Hinganghat,
District Wardha .. RESPONDENT
Shri R.M. Daga, Advocate for Appellant.
Smt. H.N. Prabhu, A.P.P. for Respondent-State.
....
CORAM : Kum. Indira Jain, J.
DATED : November 22, 2017.
ORAL JUDGMENT
1. This appeal is directed against the judgment and order dated 22.08.2003 passed by the learned 2nd Additional Sessions Judge, Wardha in Session Trial No.19 of 2001. By the said judgment and order, accused is convicted of the offence ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:28 ::: 2 Apeal546-03.odt punishable under Section 307 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years with fine of Rs.200/- in default rigorous imprisonment for one month.
2. For the sake of convenience, appellant is referred in his original status as an accused as was referred in the trial Court.
3. Prosecution case in brief is as under:-
(A) Complainant Suresh Ghavaghave was a resident of Satefal in district Wardha. Accused is also resident of the same village. Incident occurred on 29.09.2000 at 10 a.m. during Durga festival. According to prosecution, idol of Goddess Durga was installed in front of the house of complainant. At the relevant time he was standing in front of the door of his house. He blocked the drain water coming from the drainage of the accused near the place where idol of Goddess Durga was installed as the water was about to enter the pendol. It is contended that accused all of a sudden came from behind and inflicted an axe blow on the head of Suresh. Within no time, he inflicted another blow with an axe on his left thigh. Suresh sustained bleeding injuries and being threatened rushed to the ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:28 ::: 3 Apeal546-03.odt house of Sudhakar Mahadeorao Narad for shelter. Accused followed him. He was, however, prevented from entering the house of Sudhakar and then he returned back. (B) Prakash Borkar was present at the time of incident. The wife and mother of Suresh came to the house of Sudhakar as they were informed about the incident. They saw Suresh lying in injured condition. He was taken to Cottage Hospital, Hinganghat for treatment. PW7 Dr. Nasim Akhatar Shakil Ahemad examined Suresh and noticed lacerated wound over left parietal region of scalp, profuse bleeding and lacerated wound over frontal region extending from left side over forehead upto lateral angle of eye. He also noticed lacerated wound on thigh. Suresh was admitted to the Hospital. Police Station Hinganghat was informed about medico legal case. (C) Police Head Constable Pramod Deshpande (PW5) visited the Hospital and after seeking medical opinion, recorded statement of Suresh. He carried the statement to Police Station. On the basis of the same, Crime No.353/2000 came to be registered against the accused for the offence punishable under Section 307 of the Indian Penal Code. Further investigation was taken over by P.S.I. Raut (PW4). Investigating Officer visited the spot and recorded spot panchanama. Accused was arrested and his blood sample was ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:28 ::: 4 Apeal546-03.odt collected. The blood sample of complainant collected by Medical Officer was received by the Investigating Officer. The clothes of injured having blood stains were seized under a seizure panchanama. Accused was in Police custody. That time he made a memorandum to discover an axe and blood stained clothes concealed in his house. Accordingly memorandum of the accused was drawn in the presence of panch witnesses and an axe and blood stained clothes were recovered from his house on the information given by the accused. Its recovery panchanama was drawn. During investigation, statements of witnesses came to be recorded. Seized muddemal was sent to Chemical Analyser. After completion of investigation, charge-sheet was submitted to the Court of Judicial Magistrate First Class, Hinganghat, who in turn committed the case for trial to the Court of Session.
4. On committal, trial Court framed charge against the accused vide Exh.9. He pleaded not guilty and claimed to be tried. The defence of accused was of total denial and false implication. He raised a specific defence that Suresh and his father were prosecuted under Section 302 of the Indian Penal Code in connection with the murder of one Govinda Dhole. Suresh and one Shriram Masurkar were facing prosecution on ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:28 ::: 5 Apeal546-03.odt the allegations of committing rape and murder of one Indubai Darunkar and father of the accused was a witness for prosecution in the said matter. According to the accused, due to previous animosity he has been falsely involved in the present case.
5. Prosecution examined in all seven witnesses to support its case. Trial Court relied upon the evidence of PW1 injured Suresh, though disbelieved evidence of child witness PW2 Seema daughter of PW1. It is stated by complainant Suresh that on the day of incident i.e. 29.09.2000 at about 10 a.m. he was present in front of the door of his house. The evidence of Suresh shows that idol of Goddess Durga was installed and near the pendol where idol was installed, drainage water from the house of the accused was flowing which could reach near the pendol. He, therefore, stopped the flow of water and that time accused coming from behind, dealt a blow of an axe on his head and second blow on his left thigh. He stated that he rushed to the house of Sudhakar Narad. Accused chased him upto the residence of Narad. Sudhakar Narad scolded the accused and then he returned back. In the cross-examination, some important admissions could be elicited by the defence. He admits that when axe was seized ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:28 ::: 6 Apeal546-03.odt and it was shown to Police, it was not got identified. He admitted that he and his father have been prosecuted under Section 302 of the Indian Penal Code on the allegations of committing murder of Govinda Dhole. He also admits that he and Shriram Masurkar were facing prosecution on the alleged commission of rape and committing murder of Indubai Darunkar. He further admits that father of accused was examined as a prosecution witness in Indubai's case. Though complainant denies that he had beaten brother of the accused and, therefore, accused felt that he would beat him and so the incident occurred contradiction in the statement recorded by Executive Magistrate 'A' has been proved by the defence.
6. It can be revealed from the cross-examination of complainant that there were blood stains on the spot of incident and house of Sudhakar Narad. Spot panchanama negatives the presence of blood stains on the spot. According to complainant both the blows were dealt by sharp edged portion of an axe.
7. The evidence of complainant is not corroborated by the Investigating Officer. It is stated by PW4 S.D.P.O Raut that injured Suresh did not give description of an axe. He states ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:28 ::: 7 Apeal546-03.odt that near the house of Suresh, blood stains were not found. Spot panchanama (Exh.21) as stated above negatives existence of blood stains on the spot. The evidence of Suresh is, therefore, inconsistent not only on spot panchanamna but also to the evidence of Investigating Officer.
8. Needless to state that conviction in a case can be based on ocular testimony of a victim if evidence of injured is without any flaw. Here as discussed above evidence of Suresh is not only against spot panchanama but also against the ocular testimony of investigating officer. Prosecution did not examine Prakash Borkar, an eyewitness to the incident. No reason is assigned for not examining this available witness. The testimony of injured is not supported by any other witness examined in the case.
9. Regarding absence of blood stains on the spot, learned counsel for applicant placed reliance on the judgment of the Division Bench of this Court in Damodar Joma Mokashi .vs. State of Maharashtra - 2012 ALL MR (Cri) 2139 and referring to paragraph 19 of the said judgment submitted that ocular testimony if contradictory to the spot panchanama and no blood stains were found, then it is clear that prosecution has ::: Uploaded on - 05/12/2017 ::: Downloaded on - 05/12/2017 23:42:28 ::: 8 Apeal546-03.odt suppressed the genesis of the prosecution case and the whole edifice of the prosecution case would then collapse. Learned counsel submits that considering the previous animosity as admitted by the complainant in his cross-examination, corroboration to the testimony of complainant was must in the present case. The submission is that in the absence of corroboration, accused ought to have been acquitted by the trial Court.
10. If evidence of PW7 Dr. Nasim Akhatar is scrutinised minutely, it can be seen that injured had sustained lacerated wounds. Complainant's case is that wounds were by sharp edge of an axe. Doctor admits in cross-examination that there was no fracture to skull. He also admits that he had no occasion to peruse medical record and case papers of the injured maintained by Kasturba Hospital. The admissions brought in the cross-examination of PW7 Dr. Nasim Akhatar clearly indicate that complainant is not coming before the Court with true facts. The evidence of complainant regarding injuries is also found contradictory to the medical evidence. In such a circumstance, it is risky to rely upon the sole testimony of an injured.
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11. It is a settled law that prosecution is required to prove guilt of the accused beyond reasonable doubt. As discussed above, conviction is based only on the ocular testimony of an injured. The evidence of injured suffers from material infirmities. Conviction on such a testimony which is inconsistent to the medical evidence without any corroboration is unsustainable in law.
12. This Court is, therefore, of the considered view that no interference is warranted in this appeal. Hence the following order:-
Criminal Appeal No.546 of 2003 is allowed. The order of conviction and sentence is set aside aside. The accused is set at liberty. Bail bonds of the accused are discharged. Fine if deposited, shall be refunded to the person depositing the same. No costs.
(Kum. Indira Jain, J. ) ...
halwai/p.s.
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