apeal337of2010.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.337 OF 2010
Kewalram S/o. Saktuji Yerne,
Aged about 39 years,
Occupation : Service,
R/o. Mengatole, Police Station
Goregaon,
District Bhandara ...APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Police Station, Tumsar,
Tahsil Tumsar, District Bhandara ...RESPONDENT
-------------------------------------------------------------------------------------------
Mr. K.R. Lambat, counsel for the Appellant.
Mr. A.M. Kadukar, Additional Public Prosecutor for the State
-------------------------------------------------------------------------------------------
CORAM
:ROHIT B. DEO, J.
DATE :29.11.2017 ORAL JUDGMENT:
The appellant is aggrieved by the judgment and order dated 21.05.2010, in Sessions Trial 17 of 2007, delivered by the Additional Sessions Judge, Bhandara, by and under which, the appellant is convicted for offence punishable under section 307 of the Indian Penal Code ("IPC" for short) and sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 5000/-.
::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:48 ::: apeal337of2010.odt 2 2 Heard Shri. K.R. Lambat, the learned counsel for the appellant and Shri. A.M. Kadukar, the learned Additional Public Prosecutor for the respondent / State.
3 The case of the prosecution, as is unfolded during the course of trial, is that the appellant (hereinafter referred to as "the accused") Kewalram Yerne nurtured a suspicion that the injured Rahul Bhajipale is in a illicit relationship with Bhavika, the wife of the accused. The accused asked the injured Rahul to accompany him to Tumsar Railway Station to receive Bhavika and the children. Rahul and the accused proceeded to the Railway Station on two wheeler of Rahul. Bhavika and the children of the accused were not seen at the Railway Station, Rahul and the accused decided to return. After proceeding for some time, the accused asked Rahul to stop the two wheeler near hotel Muskan situated on Tumsar - Dewhali road. Rahul stopped the motorcycle, the accused got down and all of a sudden whipped out knife from pocket and inflicted 2 - 3 blows under the left rib of injured Rahul. 4 Bleeding profusely the injured Rahul rushed towards hotel Muskan and collapsed near the door of the hotel. The staff of hotel Muskar who rushed to help the accused were asked by the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:48 ::: apeal337of2010.odt 3 injured Rahul to inform his family members of the incident. Rahul wrapped towel provided by one of the waiter to stop or control the bleeding, was shifted to Government Hospital, Tumsar and thereafter, to the General Hospital, Bhandara. The injured Rahul was then admitted to Government Medical College and Hospital, Nagpur, for further treatment.
5 The incident was reported by Samir Bhajipale (PW 1), the brother of the injured and on the basis of the report offence punishable under section 307 of the IPC was registered.
Clothes of the injured Rahul were seized in presence of the panchas, spot panchanama was prepared, blood mixed soil sample was seized from the spot, the accused was arrested on 1.10.2006 and the clothes of the accused were seized. Knife which was used by the accused to inflict the injuries was seized pursuant to memorandum Exh. 55. The clothes, knife and the blood sample were sent for Chemical Analyzer and reports Exh. 60, Exh. 61 and Exh. 62 were obtained. The culmination of investigation led to submission of chargesheet in the Court of the Judicial Magistrate First Class, Tumsar, who committed the proceedings to the Sessions Court.
::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:48 ::: apeal337of2010.odt 4 6 The learned Sessions Judge framed charge for the offence punishable under section 307 of the IPC, the accused abjured guilt and claimed to be tried in accordance with law. The defence, as is discernible from the trend and tenor of the cross- examination and the statement recorded under section 313 of the Code of Criminal Procedure, is of total denial and false implication. The suggestion given to the injured and other material witnesses, is that since the injured Rahul nurtured a suspicion that the accused and the wife of the injured Rahul were in a relationship, the accused is falsely implicated. 7 Shri. K.R. Lambat, the learned counsel for the accused submits that the evidence on record is grossly insufficient to bring home the charge. He would submit that the testimony of the injured Rahul is rendered suspect since there are two injury reports on record Exh. 32 dated 28.9.2006 and Exh. 34 dated 28.10.2006. The seizure and discovery of knife is attacked on the ground that the knife was seized from the road, concededly, with unhindered and open public access two days after the incident. The panch to the seizure and discovery did not support the prosecution and it is only the Investigating Officer who has deposed as regards the seizure and discovery. The submission is, ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:48 ::: apeal337of2010.odt 5 that the discovery of the knife, as an incriminating material, must be discarded. The learned counsel Shri. Lambat would submit that the report of the Chemical Analyzer qua the clothes of the accused is inconclusive, although, human blood is detected on clothes (Exh. 60), the blood group is not determined. The learned counsel would then submit, that the evidence of the material witnesses including the informant who is examined as PW 1 and the injured who is examined as PW 2, is marred by inter-se contradiction and inconsistency.
8 Per contra, Shri. A.M. Kadukar, the learned Additional Public Prosecutor, submits that the judgment impugned is unexceptionable on facts and in law. The marshalling of evidence on record can not be faulted, is the submission. The finding recorded by the learned Sessions judge, that the prosecution has established the offence under section 307 of the IPC beyond reasonable doubt, is the only finding which could have been reached in the teeth of the evidence on record, is the submission of the learned Additional Public Prosecution.
9 I have given my anxious consideration to the evidence on record, the submissions canvased by the learned counsel for the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:48 ::: apeal337of2010.odt 6 accused and the learned Additional Public prosecutor and the reasons recorded by the learned Sessions Judge, and having done so, I am not persuaded to agree with the learned counsel for the accused that the judgment impugned is against the weight of evidence on record.
10 Concededly, PW 2 Rahul suffered serious injuries. The defence, that the injuries suffered by Rahul were minor or were self inflicted is noted only for rejection. The submission of the learned counsel for the accused that the two injury reports Exh. 32 and Exh. 34 dated 28.9.2006 and 28.12.2006, respectively, render the evidence of the injured PW 2 or the medical evidence suspect, is again without substance. The author of the injury certificates Exh. 32 and Exh.34 is examined as PW
6. The second injury certificate dated 28.12.2006 is only clarificatory in nature and is not inconsistent with the injury certificate dated 28.9.2006 (Exh. 32). Concededly, the injuries suffered by PW 2 Rahul, are grievous as would be evident from nature of the injuries, which in the words of PW 6 were:
(i) One incised wound vertically placed of size 3 x 1.5 cm, 2 cm anterior to mid clavicular line, bleeding was present, depth could not be ascertained;::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:48 ::: apeal337of2010.odt 7
(ii)One incised wound vertically placed of size 4 x 2 cm. posterior to injury no.1 by 2 cm, depth omentum and small intestine protruding;
(iii)One curved incised wound about 10 cm above injury no. 1 of size 5 x 1 cm in mid axillary line, depth, could not be ascertained, bleeding was present.
Nothing is brought out in the cross-examination of PW 6 to render the medical evidence suspect. PW 2 - Rahul is an injured witness. His evidence has gone virtually unchallenged in the cross examination, on core and material aspects and facets of the incident. It is well settled position of law, that the evidence of an injured witness, is on a higher pedestal than the evidence of other witnesses. The fact that the witness is injured lends an assurance to the prosecution version that the witness was indeed on the spot of the incident. An injured witness, ordinarily, is not likely to exculpate the guilty and inculpate the innocent. The prosecution has established beyond any shadow of doubt, that the injured PW 2 suffered serious injuries in the assault. Nothing is brought on record, in the cross-examination of the material witnesses, or otherwise, to probabilize the defence that the accused is falsely implicated, even on the touchstone of preponderance of probabilities. I do not see any reason to disbelieve the evidence of ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:48 ::: apeal337of2010.odt 8 the injured Rahul.
11 The evidence of the injured Rahul, is more than amply corroborated by the evidence of PW 1 Sameer, who is the informant and whose deposition is broadly consistent with the contents of the First Information Report Exh. 18. Even after keeping out of consideration the discovery of the weapon, there is sufficient evidence on record to bring home the charge. 12 The assault, was not on the spur of the moment. It is axiomatic, that the assault was planned meticulously. The injured was made to accompany the accused under the pretext that the wife and children of the accused were to be received at the railway station. The accused was armed with a weapon and the manner of assault leaves no doubt in once mind that the intention was to kill the injured. In view of the evidence on record, the finding recorded by the learned Sessions judge that the prosecution has established the offence punishable under section 307 of the IPC is again unexceptionable.
On a holistic appreciation of evidence on record, I do not find any infirmity in the judgment impugned.
The appeal is sans merit and is rejected.
::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:48 ::: apeal337of2010.odt 9 Bail bond of the accused shall stand cancelled forthwith. The accused be taken in custody to serve the sentence.
JUDGE RS Belkhede ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:48 :::