1 Judg 130917 apeal 560.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.560 of 2003
1] Padmakar Gomaji Gajbhiye,
aged about 25 years,
2] Nandkishor Bhaurao Bondare,
aged about 23 years,
Both r/o Valni Wasti, Khaerkheda,
Distt- Nagpur (at present Central Jail,
Nagpur since 8-8-2003) .... Appellants.
-Versus-
The State of Maharashtra,
through P.S.O. PS Khaparkheda, Nagpur. .... Respondent.
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Mr. S.B. Bissa, Additional Public Prosecutor for State.
None for the appellants.
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Coram : Mrs. Swapna Joshi, J.
th Dated : 13 September, 2017.
ORAL JUDGMENT This appeal has been preferred by the appellants (hereinafter will be referred as 'the accused') against the judgment and th order passed by the learned 6 Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No.96 of 2000 delivered on 08-08-2003, whereby the learned trial Judge had convicted the accused persons for the offence punishable under Section 307 r/w 34 of the Indian Penal Code and were ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 ::: 2 Judg 130917 apeal 560.03.odt sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1500/- each, in default, to suffer rigorous imprisonment for six months.
2] The learned trial Judge had further convicted the accused persons for the offence punishable under Section 324 r/w 34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for two months.
3] I have heard Mr. S.B. Bissa, the learned Additional Public Prosecutor for the State. The appellants and their Counsel remained absent. With the assistance of the learned APP, I have carefully gone through the record of the prosecution case.
4] The facts leading to prefer this appeal can be summarised as under :-
In the year 1999 victim PW-5-Shrikrishna was residing at village Valni along with his family. The accused are also residents of the same village. PW-2-Chhatrapati is the brother of PW-5. The house of PW-2 was adjacent to the house of PW-5. At about 10.15 pm when PW-5, reached to his house, one Vinod was talking to his wife. One Dhondba Chakle was with the complainant. PW-5 asked Vinod as to why he had gone there. On this he informed that his wife told him to bring sugar and accordingly he has brought the sugar. At that time, Padmakar (accused no.1) and Nandkishore (accused no.2) came to the house of PW-5 and they caught hold of neck of Vinod and started abusing Vinod. ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 :::
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PW-5 asked the accused persons not to abuse Vinod in front of his
house. At that time Nandkishore (accused no.2) caught hold of the waist of the PW-5 and Padmakar (accused no.1) started assaulting PW-5 by means of sword on his head. PW-5 tried to resist the blows given by the Padmakar (accused no.1). Due to which he received the injury on his right hand palm. At the relevant time, PW-2-Chhatrapati arrived at the place of incident. He tried to rescue PW-5. Both the accused started assaulting PW-2-Chhatrapati by means of sword. PW-2-Chhatrapati resisted the said blow. Therefore, the said sword hit to his finger of right hand. Thereafter, the accused persons fled away. Since PW-5-Shrikrishna was critically injured, he fell unconscious on the spot. 5] It is the case of the prosecution that two and half years prior to the incident, PW-5- Shrikrishna had borrowed the amount of Rs. 60/- from Padmakar (accused no.1). However, he could not repay the said amount as there was demand from Padmakar (accused no.1), the scuffle took place between PW-1 and Padmakar (accused no.1) and since then they were not in talking terms with each other. It is also the case of the prosecution that about one and half months prior to the incident, PW-5- Shrikrishna asked the father of Nandkishor (accused no.2) to bring fishes, however, as he did not bring those fishes, on that count, there was altercation between PW-5 and the father of Nandkishore (accused no.2). As per the prosecution case, in order to take revenge, the accused persons had assaulted PW-5, at the instance of one Ashok Chandurkar and the said Ashok had threatened PW-5 to assault him. ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 :::
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6] As PW-5-Shrikrishna had received injuries, he was
immediately shifted to W.C.L. Hospital at Valni. In the meantime, PW-2- Chhatrapati proceeded to the Khaperkheda Police Station and lodged his complaint (Exhibit-26). At the relevant time, PW-7-PSI-Suresh Gangulwar was attached to Khaperkheda Police Station. On the basis of complaint (Exhibit-26), he registered the offence. 7] PW-7 proceeded to Government Medical College and Hospital, Nagpur. On the next day, he recorded the statement of PW-5 in the Government Medical College and Hospital, Nagpur. He then recorded the spot panchanama (Exhibit-41) of the place of incident. He took one sword, bed sheet and blood mixed soil from the Chhapari of the complainant vide seizure panchanama (Exhibit-42). The place of incident was the courtyard of PW-2-Chhatrpati (complainant). PW-5- Shrikrishna was hospitalized from 20-7-1999 to 04-08-1999 in the Government Medical College and Hospital, Nagpur. He took treatment at Super Specialty Hospital, Nagpur.
8] PW-5 was operated at Government Medical College and Hospital, Nagpur. PW-7 recorded the statements of other witnesses. He sent seized articles to the Chemical Analyser's office. The CA reports are at Exhibits-56 to 59. After completion of the investigation, chargesheet was submitted in the Court of learned JMFC. The case was committed to the Court of Sessions. The learned trial Judge framed the charge and on hearing and on conducting the trial, on appreciation of the evidence and hearing both the sides, the learned trial Judge has convicted the accused ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 ::: 5 Judg 130917 apeal 560.03.odt persons as aforesaid. Hence, this appeal.
9] The learned APP contended that the learned trial Judge had considered the testimony of the victim as well as the eye witnesses and the medical evidence and rightly convicted the accused persons. The learned APP further submitted that although there is discrepancy in the ocular testimony & the medical evidence, it would be proper to rely upon the testimony of injured as well as the eye witnesses and according to the APP, in this manner, the prosecution has proved its case and accused persons are rightly convicted by the learned trial Judge. 10] In order to bring home the guilt of the accused, the prosecution has heavily relied upon the testimony of PW-2-Chhatrapati who is the complainant and eye witness, PW-4-Ramrao who was the panch witness, PW-5- Shrikrishna (Injured), PW-6-Nilima, the wife of PW-5 and PW-7-Suresh, who was the investigating officer. 11] PW-5- Shrikrishna has deposed that, on 19-07-1999, at about 10.15 pm, he reached his house along with Dhondba. At that time, Vinod had visited his house as the wife of PW-5-Shrikrishna asked him to bring sugar and accordingly he had brought sugar. At that time, both the accused came to the house of PW-5. They caught hold of neck of Vinod and started abusing him. PW-5 asked them not to abuse him. At that time, Nandkishore (accused no.2) suddenly caught hold of the waist of PW-5. Padmakar (accused no.1) started assaulting PW-5 by means of sword on his head. He dealt with three blows of sword on his head. However, he tried to resist the blows given by Padmakar (accused no.1). ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 :::
6 Judg 130917 apeal 560.03.odt Therefore, he received injury on his right hand palm. PW-5 stated that he sustained injury to his head. In the meantime, his brother PW-2- Chhatrapati arrived at the place of incident. PW-2 tried to rescue him. Thereafter, both the accused started assaulting PW-2-Chhatrapati by means of sword. As PW-2-Chhatrapati resisted the blows given by the accused persons, the said sword hit to the right hand finger of PW-2- Chhatrapati. PW-5 stated that they shouted for help, therefore, the villagers gathered on the spot. In the meantime, the accused persons fled away from the spot leaving the sword at that place. According to PW-5, the alleged incident had taken place in the courtyard of his house. and there were blood stains at the place of incident as well as in the varandah of the house of PW-2.
12] According to PW-5 one and half years prior to the incident he had taken an amount of Rs. 60/- from Padmakar (accused no.1). However, he did not return the said amount to Padmakar (accused no.1) and scuffle took place between him and Padmakar (accused no.1) on account of the said money. Similarly, PW-5 told the father of Nandkishore (accused no.2) namely Bhaurao to bring fishes for him. He sold those fishes to someone else and did not give to PW-5. On that count, the quarrel took place between PW-5 and Bhaurao. 13] PW-5 stated that he was taken to W.C.L. Hospital, Coal Mines at Valni and from there he was shifted to Government Medical College and Hospital, Nagpur. He was admitted there up to 21-07-1999. He had undergone operation for those injuries sustained to his hand as ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 ::: 7 Judg 130917 apeal 560.03.odt well as his head. Thereafter, he was taken to Super Specialty Hospital, Nagpur. PW-5 identified before the Court, sword by which he was assaulted (Article-3). He also identified the bed sheet (Article-2) which was taken charge from the place of incident. During the cross examination a contradiction was pointed to PW-5 to the effect that, at the instigation of Ashok PW-5 was assaulted and 8 to 9 months prior to the incident Ashok had threatened to assault him. Thus, the defence tried to point out that, on the instigation of Ashok, he was assaulted. However, the fact remains that the allegations were made by PW-5 against the accused persons who allegedly assaulted him on the date of incident. 14] Surprisingly, in the cross examination, the case was put up to PW-5 that on the day of incident both the accused came near his house. PW-5 admitted in the cross examination that Padmakar (accused no.1) took out the sword from the back side of his shirt and at that time he was (PW-5) at a distance of two and half feet from him and his back was towards the door of his house and Nandkishore (accused no.2) was standing near accused no.1. In my opinion, the said discrepancy does not go to the root of the case as the fact remains that PW-5 has consistently stated that Padmakar (accused no.1) assaulted him by means of sword. Thus the testimony of PW-5 is not shattered in his exhaustive cross examination.
15] The case was put up by the defence that prior to the incident he had assaulted Padmakar (accused no.1) and he was critically injured to PW-5. PW-5 also denied that he along with his brother PW-2- ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 :::
8 Judg 130917 apeal 560.03.odt Chhatrapati is doing the business of country liquor at his house and both the accused used to give information to the Police about the illicit business of country liquor of PW-2. PW-5 further denied that on the day of incident the accused persons were proceeding from his house, PW-5 and PW-2- Chhatrapati saw them and decided to assault them and his brother PW-2-Chhatrapati had brought sword and a scuffle took place between PW-5 and his brother with both the accused. Thus, a case was put up to PW-5 that during scuffle with the accused persons he received injury by means of sword. PW-5 stubbornly denied the same. 16] On careful scrutiny of PW-5 it is seen that his testimony is cogent, consistent and reliable. His testimony corroborates with the eye witness PW-2- Shrikrishna. It will be relevant to refer the evidence of PW-2 who is the complainant as well as the eye witness to the incident. PW-2 who is the brother of PW-5 stated that, he along with his wife and parents were residing together and PW-5 and his wife were residing separately in the same house. According to him, at about 10.15 pm. he was having his dinner along with his father. At that time, he heard the shouts of PW-5- Shrikrishna as "/kkok js /kkok jsÞ. He immediately came out of his house. He himself and his wife also followed him. He saw Nandkishore (accused no.2) caught hold of waist of PW-5 and Padmakar (accused no.2) was assaulting PW-5 by means of sword on his head. As a result of which, PW-5 sustained bleeding injuries on his head. PW-2 resisted the blow given by Padmakar (accused no.1) so that the sword hit to the finger of his right hand. PW-5, however, collapsed on the ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 ::: 9 Judg 130917 apeal 560.03.odt ground. In the meantime, both the accused fled away from the spot. The brothers of PW-2 namely Suresh and Mulchand took PW-5- Shrikrishna to the Western Coalfields Hospital at Walni. PW-5 proceeded to the Khaperkheda Police Station to lodge the report.
17] PW-2-Chhatrapati stated that on the next day of incident, the Police visited the place of incident and took charge of bed sheet on which PW-5 was led down. He further stated that the Police took charge of sword which the accused persons had left on the spot before fleeing away and the aid sword stains with blood. PW-2 identified the sword (Article-3). Few improvements were pointed to PW-2 which he had made in his complaint and which he had made in his deposition before the Court to the effect that, when he came out of the house he saw Nandkishore (accused no.2) holding waist of Shrikrishna and Padmakar (accused no.1) giving blows by means of sword on his head. It was also an improvement pointed that, one year prior to the incident, quarrel had taken place between Shrikrishna and accused persons. It was also pointed to PW-2 that he had made an improvement in his evidence before the Court that the accused left sword on the spot. 18] In my opinion, all these discrepancies do not go to the root of the case and the fact remains that PW-5 as well as PW-2 who are the injured persons have categorically stated before the Court that they have received injuries due to the assault by sword. The defence has produced the medical certificates of the victim as well as PW-2 (Exhibits-11 to 14) on record. There is no specific opinion of the Medical Officer that during the ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 ::: 10 Judg 130917 apeal 560.03.odt scuffle the injuries explained in the medical certificate (Exhibit-15) dated 19-07-1999 are possible. Similarly, the suggestions are given to the witness about the rivalry. However, in my opinion, only because of the said rivalry, the victims PW-2 and PW-5 would not falsely implicate the accused persons in the present case. Under normal circumstances, the victim of such serious assault would not shield the real culprit and falsely implicate the others who are not involved in the said offence. The testimony PW-2 is corroborated with the testimony of PW-5 in all material particulars.
19] No doubt the medical papers (Exhibits 11 to 14) were admitted by the defence. So far as the injuries received by PW-2- Chhatrapati are concerned, the injury certificate dated 12-07-1999 (Exhibit-12) indicates that, there were following injuries.
"1) Right hand below the thum 3cm x 1cm x 2cm.
The wound are in side.
2) Middle finger of right hand upper inside.
Laceration 1 cm x 1 cm.
3) Lacerated wound an r cast to middle finger 2 cm x 1 cm upper side.
4) Abrasion on right knee joint as right lap 3 cm x 3 cm I/m-Hilled wound scar on right side of cheeks."
20] According to the Medical Officer, those injures were simple in nature and caused due to sharp and hard object and the age of injury was 12 to 14 hours.
21] As regards the Medical Certificate of PW-5-Shrikrishna
(Exhibit-15) dated 19-07-1999 is concerned, it reveals the following
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injuries :-
"1. Lacerated wound over -head
6 finger X 1/2-3/4 inch deep
2. Lacerated wound over scalp
3 finger ½ inch deep
3. Lacerated wound over right palm
about 6 finger x ½ -3/4 inch deep."
22] The said medical examination was done by Dr. S.S. Shukla
in WCL Hospital at Valni. It appears that those injures were examined by the Medical Officer Dr. Shukla immediately after the incident, which occurred at about 10.15 pm and the medical examination was conducted at 10.30 pm. Further PW-5-Shrikrishna was referred immediately to Government Medical College and Hospital, Nagpur. The Medical Officer at Government Medical College and Hospital, Nagpur examined PW-5 on 21-07-1999 and found the following injures (Exhibit-11).
"1. Compound depressed fracture on frontal bone.
2. Lacerated wound on right palm.
3. Incised wound on middle finger,
4. Fracture of nazal bone,
5. Fracture of zygoma with lacerated wound."
23] The Medical Certificate (Exhibit-11) dated 21-07-1999 reveals that the injuries were caused by hard and blunt object. On perusal of Medical Certificate of PW-5, it appears that there are discrepancies in the description of the injuries sustained by PW-5. ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 :::
12 Judg 130917 apeal 560.03.odt However, in this context the law is well settled that when there is discrepancy in ocular testimony of medical evidence the ocular testimony prevails.
24] In case of Baleshwar Mahto and another v State of Bihar and another, reported at (2017) 3 SCC 152, the Hon'ble apex Court has held as under :-
".......Minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by eyewitnesses, the testimony of eyewitnesses cannot be thrown out." It is further held that -
"......It is as a consequence of fact that injury to the witness is an inbuilt guarantee of his presence at the scene of crime and because the injured witness will not want to let his actual assailant go unpunished merely to falsely implicate third party for the commission of offence. Thus, deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on basis of major contradictions and discrepancies therein."
25] In view of the said guidelines by the Hon'ble apex Court, the testimony of PW-2 and PW-5 prevails over the medical evidence. There is nothing to doubt the testimony of witnesses and their testimony is reliable, cogent and trustworthy.
26] On the point of seizure panchamana, place of incident and ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 ::: 13 Judg 130917 apeal 560.03.odt seizure of sword from the spot, the prosecution placed reliance upon the testimony of PW-4. PW-4-Ramrao has categorically deposed that, on 20-07-1999, in his presence the Police recorded the spot panchanama and he noticed the blood stains on the spot of incident. The police took charge of one bed sheet and one sword lying on the spot. The police prepared spot panahcnana (Exhibit-41). The Police also seized the clothes of Padmakar (accused no.1) (Exhibit-7) and the clothes of Nandkishore (accused no.2) (Exhibit -8) which are admitted by the defence.
27] It is worthy to note that CA report indicates blood stains on the clothes of accused person. There is no explanation coming forward on record as to how the blood stains were on the clothes of accused persons. The said fact indicates the presence of the accused persons at the place of incident and their involvement in the offence. From the careful scrutiny of the entire testimony of the prosecution witnesses, it is held that the prosecution has proved its case beyond reasonable doubt. 28] In my opinion, the learned trial Judge had properly appreciated the facts brought on record by the prosecution. In view of the fact that, the learned trial Judge has rightly appreciated the evidence brought on record and rightly passed the order, consequently, the appeal fails and it is liable to be dismissed. Hence, the following order is passed:-
O r d e r
(a) Criminal Appeal No.560 of 2003 is dismissed. ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 :::
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(b) The judgment and order dated 13-12-2002 delivered
th
by learned 6 Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No.96 of 2000 delivered on 08-08-2003 stands confirmed.
(c) The judgment and order passed by the learned th 6 Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No.96 of 2000, convicting the accused persons for the offence punishable under Section 307 r/w 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1500/- each, in default, to suffer rigorous imprisonment for six months and for the offence punishable under Section 324 r/w 34 of the Indian Penal Code sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for two months, is maintained.
(d) The appellants/accused are on bail. Their bail bonds stand cancelled. They be directed to surrender th before the learned 6 Adhoc Additional Sessions Judge, Nagpur to undergo the remaining period of sentence. If they do not surrender within a period of four weeks from today, the learned trial Court is directed to take appropriate action in accordance ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 ::: 15 Judg 130917 apeal 560.03.odt with law.
(e) Muddemal property be dealt with as directed by trial Court after the appeal period is over.
JUDGE Deshmukh ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 00:41:38 :::