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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 201 OF 2002
Jaysing son of Goma Chavan,
Aged about 39 years,
Resident of Gunj (Tanda),
Police Station Mahagaon,
District Yavatmal ... (in Jain) .... APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Mahagaon, Tahsil -
Mahagaon, District Yavatmal. .... RESPONDENT
______________________________________________________________
Shri V.V. Dahat, Advocate (appointed) for the appellant,
Shri H.R. Dhumale, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 9
OCTOBER, 2017
th
ORAL JUDGMENT :
Challenge is to the judgment and order dated 06-3-2002 in Sessions Trial 70/1999, delivered by the learned 1 st Ad hoc Additional Session Judge, Pusad, by and under which the appellant (hereinafter referred to as the "accused") is convicted for offence punishable under ::: Uploaded on - 23/10/2017 ::: Downloaded on - 23/10/2017 23:21:51 ::: 2 apeal201. 02 Section 307 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for period of five years and to payment of fine of Rs.1,000/-.
2. Heard Shri V.V. Dahat, learned Counsel for the accused and Shri H.R. Dhumale, learned Additional Public Prosecutor for the respondent.
3. Shri V.V. Dahat, learned Counsel for the accused submits that the judgment impugned is unsustainable in law. Testimonies of the prosecution witnesses are marred by omissions, contradictions and embellishment, is the submission. Shri V.V. Dahat, learned Counsel would submit, in the alternative, that the evidence on record is not sufficient to prove the commission of offence under Section 307 of the Indian Penal Code. At the most even if the evidence is accepted at face value, the accused is liable to be convicted under Section 324 of the Indian Penal Code, is the submission.
4. The gist of the prosecution case is that an altercation took place between the complainant Uttam Ramji Pawar and his brother Rajusingh Ramji Pawar on one hand and the accused on the other ::: Uploaded on - 23/10/2017 ::: Downloaded on - 23/10/2017 23:21:51 ::: 3 apeal201. 02 hand.
5. The complainant Uttam Ramji Pawar was sitting infront of his residential house on 29-5-1999 between 7-00 p.m. to 7.30 p.m. while his brother Rajusingh was attending to the grocery shop which was situated near the house of the complainant.
6. The accused came to the grocery shop of Rajusingh under the influence of liquor. The accused demanded "murkul" and when Rajusingh told the accused that the cost was four annas, the accused retorted that the "murkul" is worth only five paisa. This led to an altercation between Rajusingh and the accused. Rajusingh was abused in filthy language by the accused who also declared that he would purchase the entire grocery shop. In view of the commotion, the complainant went to the shop of Rajusingh. He tried to pacify the accused and escorted him upto his house. The accused, however, returned armed with gupti, the wife of the complainant asked her husband Uttam to get out of the way of the accused. However, the accused all of a sudden inflicted one stab blow on the right side of abdomen of Uttam below the ribs. The complainant Uttam suffered a bleeding injury and shouted for help. Manik Rathod, Vijay Rathod, ::: Uploaded on - 23/10/2017 ::: Downloaded on - 23/10/2017 23:21:51 ::: 4 apeal201. 02 Puniram rushed to the spot and rescued the complainant from the clutches of the accused.
7. The complainant was taken to Rural Hospital, Sawana for medical examination and treatment in a jeep of Commander make. In the same jeep the accused was also taken to the said hospital alongwith the weapon. The Medical Officer informed that first a report be lodged at the police station Mahagaon and then the patient should be referred to Civil Hospital, Yavatmal. The complainant's brother and others then went to police station Mahagaon and the complainant Uttam lodged oral complaint which was reduced into writing by head constable Shambharkar (Exhibit 29).
8. The complainant was referred for further medical examination and treatment to Civil Hospital, Yavatmal. A dying declaration of the complainant was recorded on 30-5-1999 by the Executive Magistrate, Yavatmal (Exhibit 47). Since the complainant Uttam survived the assault, the said document Exhibit 47 is not a dying declaration and is a statement akin to one recorded under Section 164 of the Criminal Procedure Code.
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9. On the basis of the oral report lodged by the complainant, offence under Section 307 of the Indian Penal Code was registered against the accused who was arrested on 29-5-1999. The weapon of offence was seized under seizure panchanama Exhibit 38 dated 29-5-1999.
10. The completion of investigation culminated in submission of charge-sheet in the Court of Judicial Magistrate First Class, Mahagaon who committed the case to the sessions Court. The accused abjured guilt and claimed to be tried. The defence, as is discernible from the trend of cross-examination and the statement recorded under Section 313 of the Criminal Procedure Code is of total denial and false implication. A specific defence is taken that since the proposal of marriage of one Jyotsna, the daughter of the complainant's brother was rejected by the brother of the accused Raju, the accused is falsely implicated.
11. The prosecution has examined as many as ten witnesses. P.W.1 Uttam Pawar is the injured complainant, P.W.2 Dr. Dinesh Kurme is the Medical Officer who examined Uttam and who is the author of the injury certificate Exhibit 33, P.W.3 is Rajusingh Pawar ::: Uploaded on - 23/10/2017 ::: Downloaded on - 23/10/2017 23:21:51 ::: 6 apeal201. 02 who is the brother of the complainant and an eye witness to the incident, P.W.4 Manik Rathod, P.W.5 Vijay Rathod and P.W.6 Jyotsna Rajusingh Pawar are eye witnesses to the incident. P.W.4 Manik Rathod is also a witness to the spot panchanama Exhibit 36 while P.W.5 Vijay Rathod is also a witness to the seizure panchananma of the weapon of offence. P.W.7 Devidas Chavan is also a witness to the seizure panchanama of the shirt of the accused Exhibit 41, P.W.8 Bhaskar Vaidya is the Executive Magistrate who recorded the dying declaration of Uttam Ramji Pawar Exhibit 47, P.W.9 Mahadeorao Shambharkar is the head constable who reduced the oral complaint in writing and registered the offence. P.W.9 also seized gupti under seizure panchanama Exhibit 38, blood stained clothes of the complainant seized under seizure panchanama Exhibit 30 while P.W.10 Gangaprasad Gautam is the investigating officer.
12. P.W.1 Uttam is an injured witness. Ordinarily, the testimony of injured witness stands on a higher pedestal than that of other witnesses. The injuries suffered lend an assurance to the presence of the witness on the spot. An injured witness is not likely to absolve the guilty and to implicate the innocent. This is not an immutable rule of evidence but is a logical and rational assumption ::: Uploaded on - 23/10/2017 ::: Downloaded on - 23/10/2017 23:21:51 ::: 7 apeal201. 02 with rests on normal human conduct. The testimony of P.W.1 is broadly consistent with the oral report. It is true that certain omissions are brought on record. However, the omissions do not dent the substratum of the testimony. Illustratively, one of the omissions is that the oral report does not state that the wife of the complainant asked the complainant to get out of the way of the accused. A first information report is even otherwise not an encyclopedia and failure of the informant to state relatively collateral or peripheral facts must not be attached too much importance of significance. The evidence of P.W.1 is confidence inspiring. He has deposed that an altercation took place between the accused and Rajusingh at the grocery shop, P.W.1 pacified the accused and escorted the accused near his house and then the accused returned armed with a gupti and inflicted a stab wound on the right side of the abdomen below the ribs. The evidence of P.W.1 is corroborated by the medical evidence. P.W.2 Dr. Dinesh Kurme has proved the injury certificate Exhibit 33. Nothing is brought out in the cross-examination of P.W.2 to assist the defence. P.W.2 has deposed that the injured complainant suffered one stab injury with 4 x 1 x 3 cm. dimension which was caused by a sharp weapon.
13. P.W.3 Rajusingh Pawar is the brother of the complainant ::: Uploaded on - 23/10/2017 ::: Downloaded on - 23/10/2017 23:21:51 ::: 8 apeal201. 02 with whom the accused had altercation leading to the assault on P.W.1. P.W. 3 has broadly deposed on similar lines as P.W.1. A few omissions are brought on record. However, the omissions do not pertain to significant or core facts. Illustratively, the fact that the accused took out currency note of Rs. 10/- and offered the same to P.W. 3 is brought on record as an omission. The evidence of P.W. 3 on the assault by the accused on the person of P.W. 1 by gupti is reliable.
14. P.W. 4 is examined to prove the spot panchanama. He did not support the prosecution and was cross examined by the learned Additional Public Prosecutor. In the cross-examination he admits that the spot panchanama was prepared in his presence and proves the same (Exh. 36). P.W. 5 is examined to prove the seizure of the weapon. He initially did not support the prosecution, was declared hostile and in the cross-examination has supported the prosecution and proved Exh. 30 which is the seizure panchanama. P.W. 6 - Jyotsna Pawar is an eye-witness. Her testimony is also confidence inspiring and has stood the test of cross-examination. She has denied the suggestion that since the accused did not accept proposal of matrimonial alliance between the witness Jyotsna and the brother of accused Raju, the accused were falsely implicated. P.W. 8 - Bhaskar Vaidya has recorded ::: Uploaded on - 23/10/2017 ::: Downloaded on - 23/10/2017 23:21:51 ::: 9 apeal201. 02 the statement of injured Exh. 47. The statement was recorded as dying declaration. However, since the injured survived, Exh. 47 would at the most be a statement akin to one recorded under section 164 of Criminal Procedure Code.
15. P.W. 9 - Mahadeorao Shambharkar and P.W. 10 - Gangaprasad Gautam have deposed on the various facets of investigation.
16. The finding recorded by the learned Sessions Judge that P.W. 1 was assaulted by the accused who stabbed P.W. 1 with gupti, is unexceptionable. However, I am not persuaded to accept the submission of the learned Additional Public Prosecutor that offence punishable under section 307 of Indian Penal Code is established. One single blow appears to have been inflicted. The assault was the aftermath of an altercation. The evidence does not suggest that after inflicting the single blow, there was any attempt made by the accused to continue with the assault. It is not established by the prosecution that the accused was interrupted or prevented by any external factor from taking the assault to the logical end. The intent to cause death is not established beyond reasonable doubt. In this view of the matter, I ::: Uploaded on - 23/10/2017 ::: Downloaded on - 23/10/2017 23:21:51 ::: 10 apeal201. 02 would set aside the conviction under section 307 of the Indian Penal Code and instead convict the accused of offence under section 324 of the Indian Penal Code. The accused has already undergone approximate 403 days of detention as under trial prisoner and as convict. The following order would meet the ends of justice:
The appeal is partly allowed.
The conviction of the appellant/accused under Section 307 of the Indian Penal Code is set aside.
Instead, the appellant/accused is convicted of offence punishable under Section 324 of the Indian Penal Code and is sentenced to suffer imprisonment/detention already undergone.
The sentence of payment of fine is maintained.
The bail bond of the accused shall stand discharged. The fees of the learned Counsel appointed to represent the appellant are quantified at Rs.5,000/-.
The appeal is disposed of accordingly.
JUDGE adgokar/belkhede ::: Uploaded on - 23/10/2017 ::: Downloaded on - 23/10/2017 23:21:51 :::