apeal728of02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.728 OF 2002
Sunil son of Sadashiv Akare,
aged about 24 years,
Resident of Dolmara,
Tahsil Mouda, P.S. Mouda,
District Nagpur ...APPELLANT
...Versus...
State of Maharashtra,
through P.S.O. P.S. Mouda,
Tahsil Mouda, District Nagpur ...RESPONDENT
-------------------------------------------------------------------------------------------
Shri. R.M. Daga, Counsel for Appellant.
Shri. H.R. Dhumale, Additional Public Prosecutor for
Respondent /State.
-------------------------------------------------------------------------------------------
CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 22-09-2017 DATE OF PRONOUNCING THE JUDGMENT : 30-10-2017 ORAL JUDGMENT Challenge is to the judgment dated 23.12.2002 in Sessions Trial 150 of 2002 delivered by 4 th Adhoc Additional Sessions Judge, Nagpur by and under which the appellant (hereinafter referred to as "the accused") is convicted of offence punishable under section 307 of Indian Penal Code ("IPC" for ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:29:29 ::: apeal728of02.odt 2 short) and sentenced to suffer rigorous imprisonment for 5 years and to payment of fine of Rs. 2,000/-.
2 Heard Shri. R.M. Daga, the learned counsel for the appellant and Shri. H.R. Dhumale, learned Additional Public Prosecutor for the respondent / State.
3 The case of the prosecution is that the injured Rekha and the accused were deeply in love. The injured Rekha and the accused were residents of village Dholmara, Mouda, District Nagpur. Concededly, there is voluminous documentary evidence on record in the form of several letters written by the injured Rekha to the accused which reveal the intensity of the relationship.
4 It is version of the prosecution, and the version is not seriously challenged, that although the family of the injured was not against the relationship and was indeed ready to solemnize the marriage of the injured with the accused, the family of the accused was opposing the alliance, tooth and nail.
5 The injured Rekha Zingare, who is examined as PW ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:29:29 ::: apeal728of02.odt 3 10 has deposed that she and the accused were in love, both decided to perform marriage, however, the parents and brother of the accused were against the proposal. The injured Rekha went to Gondia for further education after completing 12 th standard and the accused went to Nagpur for further higher education. The injured states that on 1.11.2001, both she and the accused were in the village in view of the Diwali holidays. She went to the well to fetch water, she had filled the pot with water and was about to lift it when the accused arrived and expressed desire to have a word with Rekha. She neglected the accused who caught her hand from behind and by the other hand inflicted blows of knife on her chest and stomach. Rekha states that she felt unconscious and regained consciousness in General Hospital, Bhandara.
6 The prosecution has examined as many as five witnesses as eye witnesses. However, it is only Rekha whose
testimony supports the prosecution and can be considered to be implicitly reliable. The brother of injured Rekha, Umesh who is examined as PW 11 claims to have witnessed the incident. However, the very presence of Umesh on the spot is extremely doubtful. Umesh has deposed that the accused took out a gupti from a hut, went towards well and then assaulted Rekha with the ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:29:29 ::: apeal728of02.odt 4 gupti. According to Umesh, Rekha fell down and the accused again inflicted blows on her person with the gupti. The statement that the accused took out a gupti from a hut is an omission, and so is the statement that the injured Rekha fell down and the accused again inflicted gupti blows on her person. PW 11 - Umesh has given an account which is not even the version of the injured Rekha. His testimony must be discarded as absolutely unreliable. Kamalabai, the mother of the injured Rekha, who is examined as PW 12 has concededly not seen the incident and has arrived at the spot after Rekha suffered injuries. PW 7 - Sunanda and PW 8 - Kalabai who were examined as independent eye witnesses have not supported the prosecution and though cross-examined by the learned Additional Public Prosecutor, nothing is elicited from the cross-examination to assist the prosecution. 7 I have given my conscious consideration to the testimony of the injured Rekha and having done so, I find her testimony reliable and confidence inspiring. 8 The prosecution has indeed established, through the evidence of the injured witness Rekha, that the accused inflicted blows on the person of the injured witness with a sharp weapon. ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:29:29 ::: apeal728of02.odt 5 The other important fact which is established is that simultaneously the accused consumed poison. Indeed, it is admitted by the prosecution witness Umesh that the brother of the accused admitted both the injured Rekha and the accused to the General Hospital, Bhandara. It is not clear from the evidence as to whether the accused had consumed poison before assaulting Rekha or the accused consumed poison post assault.
9 PW 3 - Raghupati and PW 4 - Mahadeo who were examined to prove the seizure of the weapon have not supported the prosecution. The recovery from an open paddy field of the gupti, at the instance of the brother of the accused, to which recovery PW 13 - Rupchand Bhalavi testifies, is of no significance. Recovery of the gupti at the instance of the brother of the accused and that too from an open paddy field, is suspect. PW 9 - Gopal Lanje who was then the Medical Officer at General Hospital, Bhandara, states that out of the seven stab injuries, four were superficial. He has deposed that one pen knife was sent to him for examination and having examined the weapon, he opined that the injuries suffered by Rekha could be caused by the pen knife. PW 9 has proved Exh. 46 which is the opinion given after examining the weapon sent by the police. The witness admits in the cross- ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:29:29 ::: apeal728of02.odt 6 examination that the original record of the treatment of the injured witness is not brought before the Court. He admits that the certificate does not mention that the injuries were on vital part of the body or that the injuries were life endangering or that a person may die due to injuries in natural course. The Medical Officer further admits that no internal organ was damaged. He further admits that sword stick or gupti was not sent to him for examination and that size of the injuries do not correspond with the dimension of the blade of the weapon.
10 The Medical Officer has deposed on the basis of the medical certificate Exh. 45. Concededly, the record of the treatment of the injured was not produced. The medical certificate is absolutely silent on the gravity of the injuries suffered. The Medical Officer has deposed that the weapon sent to him for examination was a pen knife, pertinently, even the injured Rekha makes a reference to a knife and not to a gupti or sword stick. The prosecution has not adduced any evidence to bring on record the details of the treatment or hospitalization nor has prosecution adduced any evidence as to the treatment given to the accused who concededly consumed poison either immediately before the incident or immediately after the incident. To my ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:29:29 ::: apeal728of02.odt 7 mind, the prosecution has neither been diligent nor fair. 11 On a holistic appreciation of the evidence on record, although, the inflicting of stab injuries on the person of the injured Rekha is established, in my opinion, the prosecution has failed to establish offence punishable under section 307 of IPC. The injured Rekha has only stated that the accused inflicted stab injuries. The medical evidence is absolutely inadequate to assist the Court in ascertaining the nature, extent and in general the gravity of the injuries. The incident is blurred. It is not in serious dispute that the accused and the injured were deeply in love and that the accused consumed poison either immediately before or after the assault. It is difficult to attribute with any certainty the intention to cause death. I am therefore, inclined to set aside the conviction for offence punishable under section 307 of the IPC and to instead convict the accused for offence punishable under section 324 of the IPC. The accused has already undergone around eight months of detention including pre-conviction detention as under trial prisoner. Incident occurred sixteen years ago when both the accused and the injured were young and concededly in intense relationship. The detention undergone is an adequate sentence in the facts of the case.
::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:29:29 ::: apeal728of02.odt 8
The conviction of the accused under section 307 of the IPC is set aside and instead the accused is convicted for offence punishable under section 324 of the IPC.
The accused is sentenced to detention already undergone. The bail bond shall stand discharged.
The appeal is partly allowed.
JUDGE Belkhede ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:29:29 :::