J-apeal70.17.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL No.70 OF 2017
Ramchandram Samayya Latkari,
Age about 42 years,
Occupation : Labourer,
R/o. Gummalkonda, Tahsil Sironcha,
District Gadchiroli. : APPELLANT
...VERSUS...
State of Maharashtra,
Through its police Station Officer,
Police Station, Asarali,
District Gadchiroli. : RESPONDENT
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Shri A.M. Kukday, Advocate for the Appellant.
Shri A.V. Palshikar, Additional Public Prosecutor for the Respondent-State.
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CORAM : S.B. SHUKRE, J.
th DATE : 8 JANUARY, 2018.
ORAL JUDGMENT :
1. This is an appeal preferred against the judgment and order dated 11th August, 2016, passed in Sessions Case No.41/2014 thereby convicting the appellant of the offence punishable under Section 307 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment of ten years and also to pay fine of Rs.2,000/-, together ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:20:22 ::: J-apeal70.17.odt 2/9 with default sentence of rigorous imprisonment of six months.
2. The appellant is the eldest son of the complainant Samayya Latkari. The incident occurred in between 7.00 p.m. and 9.00 p.m. of 14.2.2014 in front of the house of Samayya Latkari, situated at Gummalkonda, Tahsil Sironcha, District Gadchiroli. It is alleged that the appellant was annoyed with his father Samayya for not providing him enough food to extinguish his hunger. When the appellant asked for more food from his father, his father told him that whatever was available in the house was already consumed by the appellant and that nothing had been left over. In the anger, the appellant collected dry leaves of Tendu-palm and setting them afire, the appellant tried to set ablaze the house of his father. His father, somehow managed to foil the attempt of the appellant in setting afire his house. But, it added only to further annoyance of the appellant. The appellant then picked up an axe kept in the house and ran on his father in an attempt to finish him. His father ran out of the house and went to the road in front of the house where the appellant succeeded in catching hold of his father and assaulting him by means of an axe. He gave axe blows to the left eye and left check of his father Samayya. His father fell unconscious on the ground. By that time the neighbours gathered at the spot of incident and took him to the house of one of the neighbourers, Vyankati Kumari. Since it was night time, the villagers could not do anything to provide ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:20:22 ::: J-apeal70.17.odt 3/9 medical aid or police help to Samayya. Such assistance was given to him on the next day.
3. Samayya was required to be operated upon at a hospital at Nagpur. He lost his left eye permanently. However, he survived the attack. Meanwhile, F.I.R. had been lodged with Police Station Asarali and investigation had been started. It was lodged by Samayya's son Tirupati in the morning of 15.2.2014 at about 11.00 a.m. Spot panchanama was prepared after registration of the offence under Section 3 of Indian Penal Code against the appellant. Section 27 Indian Evidence Act statement was also recorded after arrest of the appellant and axe was recovered at his instance. Necessary seizures were made. Statements of the witnesses were also recorded. After completion of the investigation, charge-sheet was filed against the appellant.
4. On merits of the case, learned Sessions Judge found that the offence of attempt to commit murder punishable under Section 307 of the Indian Penal Code was proved beyond reasonable doubt against the appellant and therefore, by the impugned judgment and order, the learned Sessions Judge convicted the appellant for said offence and sentenced him to suffer rigorous imprisonment of ten years and also to pay fine of Rs.2,000/- together with default sentence. Not being satisfied with the same, the appellant is before this Court in the present appeal.
5. I have heard Shri A.M. Kukday, learned counsel for the ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:20:22 ::: J-apeal70.17.odt 4/9 appellant and Shri A.V. Palshikar, learned Additional Public Prosecutor for the Respondent/State. I have gone through the record of the case including the impugned judgment and order.
6. Now, the following points arise for my consideration :
i) Whether the State has proved beyond reasonable doubt that in the night of 14.2.2014, the appellant launched a murderous assault on his father, Samayya, and thereby attempted to commit murder of his father ?
ii) Whether the impugned judgment and order require any interference ?
7. Shri A.M. Kukday, learned counsel for the appellant submits that the trial Court has not considered properly the discrepancies in the prosecution evidence and also the reasonable possibility of father of the appellant sustaining injuries to his left check and left eye by accidentally falling on sharp stones. He also submits that there is a doubt about recovery of the axe at the instance of the appellant under Section 27 of the Indian Evidence Act, because the father, Samayya, has deposed before the Court that after the assault, the appellant had thrown away the axe used in assaulting Samayya at the spot of incident itself and then he had run away. He also submits that the spot panchanama is not consistent with the evidence of the victim of crime at least as regards the situation of the spot of incident. The submissions, however, are disagreed to by Shri A.V. Palshikar, learned A.P.P. for the State. He ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:20:22 ::: J-apeal70.17.odt 5/9 submits that no foundation has been laid by the appellant to prove his defence that there was a reasonable probability of the victim of crime sustaining injuries because of his accidental fall on sharp stones. He further submits that there is no discrepancy or inconsistency whatsoever in the entire prosecution evidence.
8. Upon going through the evidence available on record, I find that there is no substance in the argument of learned counsel for the appellant and I find merit in the submissions of learned Additional Public Prosecutor for the State.
9. Although, now a defence has been taken that there was a possibility of the injured person, Samayya, sustaining the grievous injuries to his left eye and left check by his accidentally falling on sharp stones, the cross-examination of PW 4, Samayya, taken by the accused nowhere suggests that any foundation in this regard has been laid by the appellant. No suggestions whatsoever on this point have been given to PW 4, Somayya. On the contrary, the questions put to this witness by the appellant suggest that it is acceptable to the appellant that he ran after the injured person. The relevant suggestion given to PW 4 Somayya is that ".........It is not correct to say that when Ramchandra rushed behind me, I fell down on the ground." There is no reference made to occurrence of any fight or scuffle between the appellant and his father, Samayya. Of course, in the arrest form (Exh.-46), it is mentioned that ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:20:22 ::: J-apeal70.17.odt 6/9 there were present on the person of the appellant some injuries. But, I must say, mere presence of such injuries on the person of the appellant would not by itself be sufficient to draw an interference that these injuries were the result of a prior fight between the appellant and the accused. There has to be some material brought on record by the accused so as to enable the Court to accept the defence that possibility of occurrence of a scuffle between two persons is not ruled out. Then, there is also no material brought on record by the accused to show that there were present at the spot of incident some stones having sharp edges. Therefore, one has to say that the defence taken by the appellant was not brought even within the province of a reasonable probability and therefore, one would not be incorrect to say that the appellant has not proved his defence in the present case in any manner. This is what the learned Sessions Judge has also found and rightly so.
10. The evidence of PW 4, Samayya, is clear enough to prove the fact that in the night of 14.2.2014, he was dangerously assaulted by the appellant in which, axe blows were given to his left eye and left check which resulted in his losing left eye. There is nothing in his entire evidence to entertain any manner of doubt about credibility of PW 4 Samayya. Afterall, PW 4 is a witness who is father of the appellant and a father usually would have an inclination to protect his son unless, his son behaves in a manner that any father would think that his son is no more ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:20:22 ::: J-apeal70.17.odt 7/9 worthy of any protection because of his criminal behaviour. There is nothing available on record from which one can say that there was some ulterior motive or extraneous reason for the father to falsely implicate his son. On the contrary, deposing against the son, as has been done in the present case by PW 4, Samayya, would only show that the incident was true, requiring him to book his son for the offence he committed.
11. The evidence of PW 4, Samayya, also receives support from the deposition of PW 2, Vyankati Kumari. He says that he had seen the accused as standing at the spot of incident while his father, Samayya, was lying on the ground in an unconscious condition. He has also stated that at that time he saw the appellant as holding an axe in his hand. The spot panchanama (vide Exh.-16) also supports the case of the prosecution. There is no inconsistency between the spot of the incident and the evidence of material prosecution witnesses, especially PW 2 Vyankati Kumari and PW 4 Samayya. There is, however, some discrepancies relating to the spot from where the axe was seized. According to PW 4, Samayya, the axe was thrown at the spot of incident itself by the appellant. But, the spot panchanama does not say anything about presence of the axe at the spot of incident. Section 27, Evidence Act recovery of the axe also discloses that the spot of recovery at the instance of the accused was the house of the accused/appellant. But, this discrepancy is of such a nature as not to unsettle the evidence of the eye ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:20:22 ::: J-apeal70.17.odt 8/9 witness PW 4, Samayya, in it's core form. The core evidence PW 4, Samayya, on the point of murderous assault stated earlier, receives support from the evidence of PW 2, Vyankati Kumari, and spot panchanama (vide Exh.-16) and, therefore no importance could be given to recovery of the axe from the spot which was different from the one stated by PW 4 Samayya.
12. The evidence of two doctors, PW 7 and PW 10, also lends support to the evidence of PW 4 Samayya. There are no doubtful circumstances present in their entire evidence and so it is worthy of credence.
13. Such being the nature of the prosecution evidence, one can say that it is neither discrepant nor unreliable, as tried to be submitted by learned counsel for the appellant. In these circumstances, I do not think that learned Sessions Judge could have reached a different conclusion than the one he has made in the present case.
14. The evidence discussed earlier shows that blow of axe, a dangerous weapon, was given by the appellant to the left eye and left check of his father. Face is a vital organ of human body and when a blow of dangerous weapon like an axe is given to the face, it can result, in a given case, in fatality for one would not know where precisely it would land on the face. Such a blow when given, is capable of impacting severely any part of the face including fore-head and area near or below ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:20:22 ::: J-apeal70.17.odt 9/9 the ears, and in that case, it could prove to be fatal. It would then follow that it could be presumed that in all probability such a blow is likely to result in the death of a person to whom the blow is dealt, unless the providence of the victim saves him, and that the assailant could be presumed to have such knowledge. In the present case, though axe blows were dealt to the vital organ like face of Samayya, the father of the appellant, it was only sheer luck of Samayya that he could survive the murderous assault made upon him by his son. Therefore, I must say, all the ingredients of Section 307 of the Indian Penal Code have been proved beyond reasonable doubt in the present case. Learned Sessions Judge has rightly found the appellant as guilty of the offence punishable under Section 307 of the Indian Penal Code. The sentence has also been properly given by adopting a balanced approach. Therefore, there is no scope for making any interference with the impugned judgment and order. Both the points are answered accordingly.
15. The appeal stands dismissed.
JUDGE okMksns ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 01:20:22 :::