apeal638.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.638 OF 2002
1] Vinod Bakshi Makre,
Aged about 22 years.
2] Keshav @ Kishor s/o Chanulal Patel,
Aged about 20 years.
3] Wasu @ Wasudeo s/o Anandrao
Nirmalkar, Aged about 23 years.
4] Khilavan s/o Arjun Waghmare,
Aged about 23 years.
All resident of Indiranagar, Nagpur. ....... APPELLANTS
...V E R S U S...
The State of Maharashtra,
through Police Station Officer,
Police Station Imambada, Nagpur. ....... RESPONDENT
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Shri R.M. Daga, Advocate for Appellants.
Shri A.V. Palshikar, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
26 SEPTEMBER, 2017.
ORAL JUDGMENT
1] The appellants seeks to assail the judgment dated
19.10.2002 in Sessions Trial 178/2002 delivered by the 3 rd Adhoc ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 2 Additional Sessions Judge, Nagpur, by and under which, the appellants are convicted of offence punishable under section 324, 307 read with section 34 of I.P.C. and are sentenced to rigorous imprisonment for a period of three years and to payment of fine of Rs.2000/- each for the offence punishable under section 307 read with section 34 of I.P.C. The learned Sessions Judge has not awarded separate sentence for the offence under section 324 read with section 34 of I.P.C.
2] The prosecution case as is culled out from the First Information Report lodged by P.W.5 Gyanendra Mahato on 18.09.2001 is that the informant left his residence at 06:00 p.m. on 18.09.2001 and came to the Carrom club at Barasignal. The informant was accompanied by his friends Raju @ Jackey and Kamal @ Bhim. The informant and his friends spent time at the club till 07:30 p.m. and then went to one Pan shop situated in front of the Imambada Police Station. The Pan shop was closed and the informant and his friend started towards their respective residences on foot. When the informant and his friends were passing through a Dargah, all of a sudden at 08:00 p.m. or thereabout four assailants with sword, spear, blade and knife, ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 3 without uttering any word, assaulted the informant. The appellant 1-Vinod Bakshi inflicted a sword blow on the head of the informant. Witnessing the assault, Jackey and Bhim started running, however, they were also assaulted. The informant states that all the four assailants assaulted the informant on head, both the legs, left hand and chin and on the thumb of the right hand by sword. The informant further states that after the assailants ran away, he reached his locality and the residents admitted him to the Medical College. The informant states that he knows all the four accused by face and one also by name i.e. Vinod Bakshi-appellant 1. The informant states that on the previous day i.e. 17.09.2001 at 6'o clock in the evening when the informant, Bhim and Jackey were returning home after having a tobacco mixture (kharra) from the Pan shop situated in front of the Imambada Police Station an altercation ensued between Bhim and the assailants on the issue of an accidental push given to the assailant. A specific statement is made in the First Information Report that the assault on 18.09.2001 was an act of revenge. 3] On the basis of the First Information Report offence under section 307, 324 read with section 34 of I.P.C. was ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 4 registered, investigation was completed and charge-sheet presented in the Court of the J.M.F.C. Nagpur who committed the case to the Sessions Court. The accused pleaded not guilty and claimed to be tried. The defence as is discernable from the trend of the cross-examination and the statement recorded under section 313 of the Cr.P.C. is of false implication. 4] Shri R.M. Daga, the learned counsel for the accused contends that the evidence on record is neither reliable nor trustworthy nor consistent with the First Information Report and that the prosecution has not established the guilt of the appellants beyond reasonable doubt. Per contra, the learned A.P.P. supports the judgment impugned and contends that the injured has assigned specific roles to the accused. The testimony of the injured is confidence inspiring, is the submission. The learned A.P.P., while not disputing that only appellant 1 was named in the First Information Report and indeed only appellant 1 is named in the evidence of P.W.5 Gyanendra Mahato, P.W.6 Bhim Thakur and P.W.7 Jackey @ Raju Derikar, contends that the presence of appellants 2 to 4 at the time of the assault is more than established since the appellants 2 to 4 have been identified by the ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 5 witnesses in the Court as the assailants. The learned A.P.P. would submit, in the alternate, that even if it is held that the evidence against the appellants 2 to 4 is not free from doubt as to their specific roles appellants 2 to 4 are liable to be held guilty with the aid of section 34 of I.P.C. The learned A.P.P. lastly submits that, at any rate, the evidence against appellant 1 is conclusive. He has been named in the First Information Report which was lodged with promptitude. Each of the injured witnesses P.W.5 Gyanendra, P.W.6 Bhim and P.W.7 Jackey have named appellant 1 as the assailant having played the most prominent role in the assault.
5] In rebuttal, Shri R.M. Daga, the learned counsel for the accused would contend that the ocular evidence must be discarded as the same is totally inconsistent with the medical evidence. He would invite my attention to the testimony of Dr. Pradeep Dixit P.W.9 who is the purported author of the injury certificate Exh.56. Shri R.M. Daga contends that P.W.9 has admitted that he did not examine the injured Gyanendra and that the injury certificate is issued on the basis of the bed head ticket. The learned counsel would urge that since the bed head ticket, ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 6 which is the primary material on the basis of which the injury certificate is purported to have been issued, is not produced much less proved, no weight can be attached to the injury certificate. The learned counsel would further urge that in any event the medical evidence is inconsistent with the ocular evidence. 6] The prosecution has examined Tulshiram Atram as P.W.3 and Thukil Shahu P.W.4 as eye witnesses to the incident. However, both have not supported the prosecution. Nothing is brought out in the cross-examination of P.W.3 and P.W.4 to assist the prosecution. The case of the prosecution therefore, hinges on the evidence of P.W.5 Gyanendra, P.W.6 Bhim and P.W.7 Jackey and on the medical evidence. Be it noted, that although according to the case of the prosecution a sword and clothes were recovered from appellant 1, both the panchas P.W.1 and P.W.2 have not supported the prosecution. In the factual matrix, I am not inclined to rely on the sole testimony of the I.O. to hold that the recovery is proved and I must shut out the recovery from consideration while appreciating the evidence on record.
7] I have given my anxious consideration to the evidence ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 7 of P.W.5 Gyanendra, P.W.6 Bhim and P.W.7 Jackey and having done so I am inclined to agree with the learned counsel for the accused that there is no evidence worth the name against appellants 2 to 4. The appellants 2 to 4 were not named in the F.I.R. None of the prosecution witnesses have named appellants 2 to 4. Concededly, no identification test is conducted is held. No weight can be attached to the statement in the evidence before the Court that the accused present in the Court are the assailants. 8] Shri Palshikar, the learned A.P.P. is however, vehement in the submission that the offence is proved beyond reasonable doubt as against appellant 1-Vinod Bakshi. He is named in the F.I.R. and P.W.5 Gyanendra, P.W.6 Bhim and P.W.7 Jackey have in unison named appellant 1 as the assailant who initiated the assault and played the most prominent role in the incident. Gyanendra Mahato who is examined as P.W.5 states that on 18.09.2001 the provocation for the assault was the accidental dash given by Bhim to appellant 1-Vinod Bakshi. The statement in the examination-in-chief is that immediately appellant 1-Vinod Bakshi whipped out a sword and started the assault. P.W.5 states that P.W.6 and P.W.7 escaped. He further states that appellant 1 ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 8 assaulted him on head, forehead, back side, neck, and face and on legs. He further deposes that there were three boys with appellant 1-Vinod Bakshi who also joined in the attack. The other three boys were armed with knife, is the deposition. The evidence is clearly inconsistent with the First Information Report and that too on material aspects. Be it noted, that in the First Information Report a specific motive for the assault was alleged. According to the First Information Report an altercation on 17.09.2001, due to accidental dash given by P.W.6 Bhim to appellant 1-Vinod Bakshi. An altercation ensued between the informant, Bhim and Jackey and the accused and that the assault on the next day i.e. on 18.09.2001 was an act of revenge. It is axiomatic, that the inconsistency between the First Information Report and the evidence of P.W.5 cannot be brushed aside as the variance is on material and significant aspects of the version of the informant. 9] I must agree with the learned counsel for the accused that the injury certificate Exh.56 must be discarded as of no utility to the prosecution. Firstly, the injury certificate has not been proved. P.W.9 Dr. Pradeep Dixit who is the author of the injury certificate has not examined the injured. P.W.9 claims that the ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 9 contents of the injury certificate are recorded on the basis of the bed head ticket. But then, the bed head ticket which is the primary material on the basis of which the contents of the injury certificate are recorded is not produced much less proved. Secondly and more importantly, the injury certificate is totally inconsistent with the evidence of the P.W.5 prosecution witness. The injury certificate makes a reference to as many as 11 wounds and each of the wound is said to be a lacerated wound. The implication is that the injury is caused by a hard and blunt weapon, which is also the opinion expressed in the injury certificate. Not a single wound is an incised wound. The evidence of P.W.5, 6 and 7 that the injured P.W.5 was brutally assaulted with sword, spear-blade and knife must be held as unreliable in the teeth of the medical evidence which is suggestive of the use of a hard and blunt weapon. The learned A.P.P. however, submits that the examination report of the sword would show that one side is sharp and the other is blunt. If the blunt point of the sword is used, then the use is consistent with the injury certificate, is the submission. The learned A.P.P. may be right in contending that if a sword which is either blunt or thick edged is used a lacerated wound may be caused. But then, there is nothing on record to suggest ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 10 that the blunt side of the alleged weapon of offence was used. Indeed, to my mind, if in a fierce assault 11 injuries are inflicted, it would be extremely improbable that the blunt point of the sword is used consistently and carefully to inflict multiple blows thereby ensuring that there is no incised wound. It is obvious, that the possible explanation suggested by the learned A.P.P. does not hold true for the other weapons allegedly used in the assault since it is not the case of the prosecution that one side of the knife or the spear-blade is blunt.
10] On a holistic appreciation of the evidence on record, I am inclined to conclude that the prosecution has failed to establish the offence under section 313 of the Cr.P.C. beyond reasonable doubt.
11] The judgment impugned is set aside. The accused are acquitted of offence punishable under section 324, 307 read with section 34 of I.P.C.
12] Fine paid by the accused, if any, be refunded to them. ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:06 ::: apeal638.02.J.odt 11
13] The appeal is allowed.
JUDGE
NSN
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