Chhalasingh vs The State Of Maharashtra
2011 Latest Caselaw 258 Bom

                                     (1)              Cri. Appeal No. 347 of 2011


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
              AURANGABAD BENCH, AT AURANGABAD.




                                                                                   
                     Criminal Appeal No. 347 of 2011




                                                           
    Chhalasingh s/o. Kishansing Chavan,
    Age : 29 years,




                                                          
    Occupation : Shikari,                                     .. Appellant
    R/o. Railway Station Road,                                   (Original
    Taluka : Basmath, Dist. : Hingoli.                            accused no.1)




                                        
                 versus
                      
    The State of Maharashtra.                                 .. Respondent.

                                .......................
      


               Mr. Satej S. Jadhav, Advocate, holding for
   



               Smt. S.S. Jadhav, Advocate, for the appellant.

               Mr. S.G. Nandedkar, Additional Public Prosecutor,
               for the respondent.





                                ........................





                                 CORAM : SHRIHARI P. DAVARE, J.

                                  Date of reserving the
                                  judgment : 13th December 2011.

                                  Date of pronouncing the
                                  judgment : 21st December 2011.




                                                           ::: Downloaded on - 09/06/2013 18:01:38 :::
                                    (2)       Cri. Appeal No. 347 of 2011



    JUDGMENT :

1. Heard learned respective Counsel for the parties.

2. The challenge in this appeal is to the conviction and sentence inflicted upon the appellant (original accused no.1), by

way of judgment and order dated 29th June 2011, rendered by the learned Additional Sessions Judge, Basmathnagar, in Sessions

Trial No. 10/2011, thereby convicting the appellant for the

offence punishable under Section 332 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and

to pay a fine of Rs. 1000/-, in default of payment of fine, to suffer simple imprisonment for three months.

3. The factual conspectus and shorn of details of the

prosecution case are as follows :

(a) On 2nd August 2010, at about 10 p.m., the complainant PW 9 Sk. Gausoddin Sk. Bahib was standing in front of Basmath Police Station along with PW 1 Police Head Constable Sk.

Raheem, and PW 2 Police Head Constable Prakash Neval after the roll call. At this juncture, they saw two persons of Shikalkari community proceeding towards Karanja Chowk on motorcycle driving it rashly, and hence, complainant PW 9 Sk. Gausoddin

(3) Cri. Appeal No. 347 of 2011

suspected that one of the accused who had absconded during combing operation of 13th July 2010. Hence, all the said three

Police personnel followed the said motorcycle on two different

motorcycles. However, motorcycle driven by the said two persons of Shikalkari community i.e. accused stopped in front of Shradha Bar at Basmathnagar, and accused no.1 i.e. appellant

herein entered into the said Bar while accused no.2 Gulabsing was standing near the motorcycle. Hence, the complainant and

other Police personnel made enquiry with the accused who was

standing near the motorcycle about his name and the name of the other accused. At this juncture, accused no.2 came out of the Bar

and enquired with the Police personnel, as to who they were enquiring about his name. Thereupon, the complainant disclosed

his identity stating that he was a Police personnel. However, the

said accused threatened to kill them and accused no.1 i.e. appellant herein gave a blow of sword on the chest of the complainant, but the complainant warded the said blow of sword

by his wrist of left hand and thereby he sustained bleeding injury. Thereupon, PW 1 Police Head Constable Sk. Raheem and PW 2 Police Head Constable Prakash Neval tried to catch the said

accused, but he assaulted them also by means of sword and thereby they also sustained bleeding injuries on their persons. Thereafter, accused no.2 started the motorcycle and both of them fled away from the spot of incident.

(4) Cri. Appeal No. 347 of 2011

(b) Thereafter, the said personnel i.e. complainant PW 9 Sk.

Gausoddin, PW 1 Police Head Constable Sk. Raheem and PW 2

Police Head Constable Prakash Neval went to Sub-District Hospital, Basmath, and thereafter, PW 9 Sk. Gausoddin approached Basmath Police Station where PW 10 P.S.I. Subhash

Thembale was on station diary duty with whom complainant PW 9 Sk. Gausoddin lodged the report and PW 10 PSI Subhash

Thembale scribed the same and crime was registered against the

accused under C.R. No. 107/2010. Accordingly, criminal law was set into motion and PW 10 PSI Subhash Thembale visited

the spot and prepared panchanama Exhibit 44 in the presence of Panchas. Moreover, he recorded statement of the complainant,

other injured persons and witnesses. Moreover, blood stained

clothes of the victims injured were seized under the seizure panchanama at Exhibits 25 and 27 respectively.

(c) Thereafter, on 6-8-2010, the appellant herein, namely, Chhalasingh was arrested and shirt worn by him was seized under the seizure Panchanama Exhibit 46. On 7-8-2010, one

motorcycle came to be seized which was lying in front of house of the appellant. Moreover, the incriminating weapon i.e. sword in question was seized at the instance of the appellant herein under the memorandum of panchanama Exhibit 47 which was

(5) Cri. Appeal No. 347 of 2011

recovered from thorny shrub situated in front of house of the appellant and the same was seized under the recovery

panchanama Exhibit 48. Thereafter, accused no.2 Gulabsing i.e.

acquitted accused came to be arrested on 15-9-2010. It is further case of the prosecution, that on 14-10-2010, said articles were sent to Chemical Analyser for examination and report along with

covering letter Exhibit 49. After filing of charge sheet, Chemical Analyser's report dated 23-3-2011, Exhibit 18, was received and

the same was produced along with charge sheet.

(d) PW 8 Dr. Chandrashekhar Bhalerao examined the three

victims, namely, PW 9 Sk. Gausoddin, PW 1 Sk. Raheem, and PW 2 Prakash Neval, and issued injury certificates at Exhibits 36,

37 and 38, respectively.

(e) After completion of investigation, PW 10 PSI Subhash Thembale filed charge sheet against both the accused before

Judicial Magistrate (First Class), Basmath, for the offences punishable under Sections 307, 353, 332, read with Section 34 of Indian Penal Code. Since the offence punishable under Section

307 of Indian Penal Code was exclusively triable by the Court of Sessions, learned Judicial Magistrate (First Class), Basmath, committed the said case to the Court of Sessions from trial. Accordingly, learned Additional Sessions Judge, Basmath,

(6) Cri. Appeal No. 347 of 2011

framed charge against the accused on 7-3-2011 for the offence punishable under Sections 307, 333, read with Section 34 of

Indian Penal Code. However, the accused persons pleaded not

guilty to the said charges levelled against them and claimed to be tried.

4. To substantiate the charges levelled against the accused persons, the prosecution has examined as many as ten

witnesses as mentioned below :

PW 1 - Shaikh Raheem s/o. Shaikh Nanhu,

Police Head Constable - Victim.

PW 2 - Prakash s/o. Sahebrao Newal, Police Head Constable - Another victim.

PW 3 - Raju s/o. Parusa Trimalle, Owner of Pan shop besides Shradha Bar - Eye witness (Turned hostile).

PW 4 - Moin Quadri s/o. Mustaq Quadri -

Panch to spot panchanama of seizure of motorcycle (Turned hostile).

PW 5 - Punjaji s/o. Harji Pund -

Panch to seizure panchanama of clothes of victim (Turned hostile).

(7) Cri. Appeal No. 347 of 2011

PW 6 - Manik s/o. Digambar Puri -

Panch to seizure panchanama of

clothes of accused (Turned hostile).

PW 7 - Shankar s/o. Jivanaji Nadare -

Panch to memorandum of panchanama and recovery panchanama (Turned hostile).

PW 8 - Dr. Chandrashekhar s/o. Sakharam Bhalerao -

Medical Officer who examined the victim.

PW 9 - Shaikh Gausoddin s/o. Shaikh Habeeb, Police Head Constable - Complainant.

PW 10 - Subhash s/o. Keshavrao Thembale,

Police Sub-Inspector - Investigating Officer.

5. The defence of the accused / appellant is of total

denial and it is specifically stated by him, that there was riot at

Kanipura area of Basmath in which PSI Pawar sustained injuries. He also stated that persons of his community were arrested in

that matter, and hence, he has been implicated in the present case falsely, and accordingly, he claimed to be innocent. However, neither he examined himself on oath nor examined any defence

witness to substantiate his defence.

6. After considering oral, documentary and medical evidence adduced / produced by the prosecution, learned trial

(8) Cri. Appeal No. 347 of 2011

court acquitted accused no.2, namely, Gulabsing, but convicted present appellant i.e. original accused no.1, namely, Chhalasingh,

for the offence punishable under Section 332 of Indian Penal

Code, and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default of payment of fine, to suffer simple imprisonment for three months.. Being

aggrieved and dissatisfied by the said judgment and order of conviction against the appellant, he has preferred the present

appeal challenging the same and prayed for quashment thereof.

7. In order to deal with the submissions advanced by the

learned Counsel for the parties, it is necessary to advert to the material evidence adduced / produced by the prosecution, and in

the said context, coming to the testimony of the complainant PW

9 Sk. Gausoddin, who has stated that the incident took place on 2nd August 2010, at about 10.00 p.m. in front of Shradha Bar, Basmath, and before that, he was talking to Police Head

Constable PW 1 Sk. Raheem, and Police Head Constable PW 2 Prakash Neval, in front of Basmath Police Station, when he saw two persons of Sikalkari community proceeding towards Karanja

Chowk on a motorcycle by driving the same rashly, and therefore, he suspected that one of that persons was an accused who absconded during combing operation of 13th July 2010. Accordingly, they followed the said persons on their motorcycle

(9) Cri. Appeal No. 347 of 2011

and saw that the said motorcycle of the accused was stopped at Shradha Bar and one of those persons went inside the Bar and

another was standing near the motorcycle. Hence, they enquired

from the accused standing near motorcycle about his name and he gave his name as Gulabsing. At this juncture, another accused came outside the Bar and asked as to who they were enquiring

about their names. Thereupon, complainant PW 9 Sk. Gausoddin told that they were the Police. However, the appellant herein told

them that "Koi Police nahi Tumhare Ko Khatam Kar deta hoon".

Thereafter, he gave a blow of sword on his chest, but same was warded by the complainant by his left hand and thereby he

sustained bleeding injury of his wrist joint of his left hand. At that time, PW 1 Police Head Constable Sk. Raheem and PW 2

Police Head Constable Prakash Neval tried to catch hold of

accused Chhalasingh. However, accused gave blows of sword on their persons and thereby PW 1 Sk. Raheem sustained bleeding injury on his back and PW 2 Prakash Neval sustained bleeding

injury over his right arm. In the meantime, accused no.2 started motorcycle and gave call to accused no.1 i.e. appellant herein, Chhalasingh and thereaftyer both of them fled away from the

spot.

8. PW 9 Sk. Gausoddin further stated that as all the three Police employees were having injuries, firstly they approached

(10) Cri. Appeal No. 347 of 2011

Sub-District Hospital, Basmath, and thereafter, PW 9 Sk. Gausoddin lodged report against the accused and it bore his

signature which is produced at Exhibit 40. PW 9 Sk. Gausoddin

also identified the sword i.e. incriminating weapon. Moreover, he identified his shirt and pant which was seized under the panchanama Exhibit 41 i.e. Articles "D" and "E", respectively.

9. During cross examination, PW 9 Sk. Gausoddin stated

that he was attached to Dy.S.P. Office, Basmath, since 10th July

2009. He also stated that combing operation was conducted by Police Station, Basmath, on 13th July 2010. He further stated

that on the relevant day i.e. 2nd August 2010, he was standing in front of Police Station to return to his house after completion of

his duty. However, he stated that he has no knowledge about the

riot which took place about one year prior to the incident at Kanipura, Basmath, between persons of Shikalkari community and Muslim community. He further stated that one Police

employee, namely, Pawar sustained injury therein. Hence, suggestion was given to him that in order to take revenge of that incident, the complainant involved accused falsely in the present

crime, but the same was denied by him. It was suggested to him that he himself created injury on his person and blood stained clothes were planted on his person and the appellant was implicated in the present case falsely, but the same was denied by

(11) Cri. Appeal No. 347 of 2011

him.

10. Coming to the testimony of PW 1 Sk. Raheem s/o. Sk.

Nanhu, another victim, who deposed that the incident took place on 2nd August 2010, at about 10.00 p.m. and he was serving as Police Head Constable at Police Station, Basmath. He also stated

that after roll call was over, he was standing in front of the Police Station along with PW 9 Sk. Gausoddin and PW 2 Prakash

Neval. At this juncture, they saw two persons of Shikalkari

community proceeding on a motorcycle towards Karanja Chowk. Hence, PW 9 Sk. Gausoddin informed that one of the said

persons to be an accused who had run away during the combing operation on 13th July 2010. Hence, the said Police personnel

i.e. PW 1 Sk. Raheem, PW 2 Prakash Neval and PW 9 Sk.

Gausoddin followed them on another motorcycle and when they reached near said accused persons, they found that those persons had taken their motorcycle towards Shradha Bar and driver of the

motorcycle stopped it at Shradha Bar and one of them went inside Bar while other was standing near motorcycle. Hence, Police personnel confirmed that the person standing near the

motorcycle was accused no.2 Gulabsing, and the person who went inside the Bar was accused no.1 i.e. appellant herein, namely, Chhalasing. Hence, Police personnel made enquiry about their names. Thereupon, appellant Chhalasing came out of

(12) Cri. Appeal No. 347 of 2011

the Bar and asked them as to who were enquiring about his name. Hence, Police personnel disclosed their identity. However,

appellant told that who is Police Nayak and he would kill him,

and thereupon, immediately he gave blow of sword on the chest of PW 9 Sk. Gausoddin, who warded off the blow of sword by his wrist of left hand and thereby he sustained bleeding injury on

his wrist. Accordingly, PW 2 Prakash Neval tried to catch hold of accused Chhalasing, but he assaulted PW 2 Prakash Neval by

means of sword on his chest and arm, and thereby he sustained

bleeding injury on his chest and arm. He further stated that the accused Chhalasing tried to assault him by means of sword, but

when he tried to save himself, the blow of sword hit on his back, and thereby he sustained bleeding injury over his back.

Thereafter, both the accused fled away by the said motorcycle,

and hence, the injured were removed to Sub-District Hospital, Basmath, and PW 9 Police Nayak Gausoddin lodged report about the said incident. He further stated that the Investigating Officer

seized his shirt in the presence of Panchas under the seizure panchanama Exhibit 25.

11. In the cross examination, PW 1 Sk. Raheem stated that they were required to attend Police Station at 8.00 p.m. for giving attendance / roll call, and during roll call, he was assigned duty of the next day morning work. He admitted that after roll

(13) Cri. Appeal No. 347 of 2011

call, his duty was over and he was about to proceed to his house. He also stated that he was not in the combing operation which

took place on 13th July 2010. As regards, PW 9 Sk. Gausoddin,

he stated that he was attached to office of Sub-Divisional Police Officer on the relevant day. He further admitted that all the Police Officers were in civil dress at the time of incident. He

further admitted that he was not knowing any of the accused before the incident, as well as, accused were also not knowing

them. He further stated that about 10 - 15 persons had gathered

near the spot of incident. He also admitted that Article "A" shirt was not torn towards its back side, as well as, there were no

blood stains thereon. A suggestion was given to him that no incident, as stated by him, had ever taken place, but the same was

denied by him. It was also suggested to him that accused had not

visited Shradha Bar on the date of incident nor the Police personnel followed them, but the same was also denied by him.

12. That takes me to the deposition of PW 2 Prakash Neval, third injured person, who has stated that he was serving as Police Head Constable at Police Station, Basmath, on 2nd August

2010, and at that time, he was along with Police Nayak PW 9 Gausoddin and Police Constable PW 1 Sk. Raheem were standing in front of Police Station, Basmath, at about 10.00 p.m. At this juncture, they saw two persons of Shikalkari community

(14) Cri. Appeal No. 347 of 2011

proceeding on a motorcycle towards Karanja Chowk. At that time, PW 9 Sk. Gausoddin stated that one of them seems to be an

accused who had run away on 13th July 2010 during combing

operation. Therefore, PW 2 Prakash Neval, PW 9 Sk. Gausoddin and Police Constable PW 1 Sk. Raheem followed them and noticed that two persons of Shikalkari community were standing

near Shradha Bar. One of them went inside Bar and another was standing near motorcycle. Hence, Police personnel made enquiry

about names of the persons with the person standing near

motorcycle. At this juncture, appellant herein, who was inside Bar, came out of the Bar armed with sword and asked the Police

personnel, who were they to know about their names, and the appellant stated that he would kill them and immediately attacked

on PW 9 Sk. Gausoddin with sword who warded off the said

blow by wrist of his left hand, but thereby PW 9 Sk. Gausoddin sustained bleeding injury on his wrist of left hand. The appellant also gave blow of sword on the chest of PW 2 Prakash Neval and

thereby sustained bleeding injury on right side of his chest and right arm. The appellant also assaulted PW 1 Sk. Raheem by means of sword and thereby he sutained bleeding injury on his

back. At this juncture, accused no.2 Gulabsing started his motorcycle, as well as, accused no.1 Chhalasing ran away from the spot by the said motorcycle. Thereafter, injured persons went to Sub-District Hospital, Basmath, and PW 9 Sk. Gausoddin

(15) Cri. Appeal No. 347 of 2011

lodged report of the incident. PW 2 Prakash Neval also stated that during investigation, Investigating Officer seized his shirt

which is identified by him as Article "C". Moreover,

Investigating Officer prepared seizure memo about seizure of his shirt and which is produced at Exhibit 27, and the incriminating article sword was identified by him and the same is marked as

Article "B".

13. During cross examination, PW 2 Prakash Neval stated

that he was standing near the Police Station on the day of the incident after completion of his duty. Moreover, he also stated

that PW 9 Sk. Gausoddin had not attended the roll call at Police Station, Basmath, as he was attached to Dy.S.P. Office. He has

further stated that he was not knowing any of the accused before

the incident. As regards the offences pending against accused no. 1, he stated that he cannot say as to which offences were pending against him without seeing the record. A suggestion was given to

him that the injuries on his right arm and right side of chest were created to implicate the accused falsely, but the same was denied by him. He also admitted that prior to one year of the incident,

there was quarrel between Police Officers and persons of Sikalkari community at Kazipura area of Basmath, and in that incident, one Police Head Constable Pawar sustained injuries over his head. Hence, suggestion was given to him that in order

(16) Cri. Appeal No. 347 of 2011

to take revenge of that matter, Police personnel have involved accused in the present case falsely, but the same was denied by

him.

14. That takes me to the testimony of PW 8 Dr. Chandrashekhar Bhalerao, who has stated that on 2nd August

2010, he was serving as Casualty Medical Officer at Sub-District Hospital, Basmath, and on that day, he examined Sk. Gausoddin

and on his examination, he found incised would having size of 10

cms. X 3 cms. X 4 cms. on his left hand, lateral aspect of wrist. He also stated that he also examined PW 1 Sk. Raheem and

found incised wound admeasuring 8 cms. X 1/4 cms. X 1/4 cms. on his back towards right side from midline towards scapula. He

further stated that he also examined PW 2 Prakash Neval and

found following injuries on his person :

(i) Incised wound having size of 6 cms. X 1/4 cms.

X 1/4 cms. at his right arm.

(ii) Incised wound having size of 4 cms. X 1/2 cms.

X 1/2 cms. on right side of his chest above

nipple, and

(iii) Incised wound having size of 5 cms. X 1/2 cm.

X 1/2 cm. on left arm towards dorsal aspect.

(17) Cri. Appeal No. 347 of 2011

He further stated that accordingly he issued injury certificates which are produced at Exhibits 36 to 38. He also stated that the

injuries sustained by all above three patients were simple in

nature, but caused by hard and sharp object within 24 hours of his examination. He further stated that all these injuries are possible by blow of sword like Article "B". However, in the

cross examination, he admitted that the injuries mentioned in Exhibit 36 and Exhibit 38 can be self-inflicted. He also stated

that the force of the blow was not much, and therefore, the

injuries were simple in nature.

15. On the background of the aforesaid material evidence adduced / produced by the prosecution, learned Counsel for the

appellant canvassed that out of ten witnesses examined by the

prosecution, five witnesses turned hostile and did not support the case of the prosecution, which included the eye witnesses and Panch witnesses to the seizure panchanama, spot panchanama,

memorandum as well as recovery panchanamas, and therefore, seizure of the motorcycle and clothes of the victim, as well as, clothes of the accused, and more particularly, seizure of the

sword at the instance of the appellant, under the memorandum and recovery panchanama have not been proved through independent witnesses, and hence, the said seizure of the articles cannot be construed as incriminating against the appellant herein.

(18) Cri. Appeal No. 347 of 2011

16. It is also canvassed by the learned Counsel for the appellant, that PW 1 Sk. Raheem has admitted in his deposition

that he was not on duty and was standing outside the Police

Station at the time of incident after roll call was over, and hence, it is submitted that there was no question of discharging official duty. Moreover, learned Counsel for the appellant also argued

that PW 9 Sk. Gausoddin admitted that he was not attached to Basmath Police Station, out of which he was standing, but he was

attached to Dy.S.P. office, and he further admitted that at the very

time of incident, he was not on duty. Hence, learned Counsel for the appellant submitted that all the Police personnel i.e. victims,

namely, PW 9 Sk. Gausoddin, PW 1 Sk. Raheem and PW 2 Prakash Neval were in civil dress and they had given their roll

call and their duty was over, and accordingly, they were not on

duty at the time of occurrence of the incident and even as per his evidence, he was assigned duty of the next day morning work, and hence, there was no question of discharge of official duty by

them. Moreover, PW 10 Subhash Thembale, Investigating Officer, admitted in the cross examination that he has not filed any document to show that all Police personnel were on duty, and

consequently, there is no question of commission of offence punishable under Section 332 of Indian Penal Code by the appellant herein, and hence, he deserves to be acquitted for the said offence.

(19) Cri. Appeal No. 347 of 2011

17. Besides, it is submitted that the aforesaid witnesses

i.e. PW 9 Sk. Gausoddin, PW 1 Sk. Raheem and PW 2 Prakash

Neval, and the appellant herein were not knowing each other and they were unknown to each other, as well as, no evidence has been brought by the prosecution in respect of criminal

antecedents of the appellant, and hence, possibility of commission of offence by the appellant herein, as alleged by the

prosecution, is remote.

18. As regards the recovery of sword at the instance of the

appellant herein, it is submitted that PW 7 Shankar s/o. Jivanaji Nadare, Panch witness, has turned hostile and completely resiled

from his earlier statement and hence, the said recovery is proved

through Investigating officer and not through any independent witness. As regards, the said recovery of sword, it is further submitted that it was recovered from open place under shrubs

accessible to public at large, and there is no mention anywhere that the said sword was sealed at the time of seizure, as well as, PW 10 PSI Subhash s/o. Keshavrao Thembale has not stated that

he sealed the said sword after seizure, and therefore, such recovery cannot connect the appellant with the alleged crime.

19. As regards eye witness, it is canvassed that PW 3

(20) Cri. Appeal No. 347 of 2011

Raju s/o. Parusa Trimalle, owner of Pan shop near Shradha Bar, has turned hostile and did not support the case of the prosecution,

and hence, it is submitted that there is no independent eye

witness to the occurrence of the incident and witnesses examined by the prosecution in respect of occurrence of the incident are Police personnel i.e. interested persons and their testimonies do

not corroborate with each other, and hence, such stock of evidence consequently does not connect the appellant with the

alleged crime.

20. According to the learned Counsel for the appellant,

appellant / accused has taken specific defence in his statement recorded under Section 313 of the Code of Criminal Procedure,

that there was a riot at Kanipura area of Basmath in which PSI

Pawar sustained injuries, and in that matter, persons of the community of the accused were arrested, and therefore, appellant / accused no.1 has been involved in the present case falsely.

Pursuant to the said defence, it is canvassed that there is motive for the false implication of the appellant in the alleged crime since about one year back there was riot between Police

personnel and members of Shikalkari community in which PSI Pawar was injured, of which he was grudge in the mind of the Police personnel, and hence, Police personnel implicated the present appellant in the present case falsely.

(21) Cri. Appeal No. 347 of 2011

21. Besides, it is canvassed by the learned Counsel for the

appellant, that the very ingredients of Section 332 of IPC are

absent in the present case and hence, conviction and sentence inflicted upon the appellant would not sustain. Besides, it is also submitted that considering the medical evidence of PW 8 Dr.

Chandrashekhar s/o. Sakharam Bhalerao and the injury certificates of the victims, it is apparent that injured persons

sustained only simple injuries and the injured were discharged

from the hospital and the injury certificates also reflect that the injured persons were discharged from the hospital. Moreover,

PW 8 Dr. Chandrashekhar Bhalerao admitted in his cross examination, that injuries mentioned at Exhibit 36 in respect of

complainant PW 9 Gausoddin and injuries mentioned at Exhibit

38 in respect of PW 2 Prakash Navel can be self-inflicted injuries, as well as, he admitted that the force of the blow was not much, and therefore, injuries were simple in nature, and hence it

is submitted that the said medical evidence also is not incriminating against the accused.

22. Besides, it is argued by the learned Counsel for the appellant that the prosecution has not explained the custody of the seized articles from the date of seizure till handing over the said articles to the carrier, as well as, prosecution has not

(22) Cri. Appeal No. 347 of 2011

examined the carrier who allegedly carried the said articles to the Chemical Analyser's office along with the forwarding letter, and

hence, custody of the seized articles from the date of seizure till

they were sent to Chemical Analyser's office is under suspicion, and hence, Chemical Analyser's report cannot be tacked with the seized articles, and therefore, corroborative piece of evidence of

Chemical Analyser's report dated 23-3-2011 at Exhibit 18 cannot be construed as incriminating evidence against the appellant.

23.

Alternatively, learned Counsel for the appellant canvassed that the appellant has undergone almost 2/3rd of the

sentence. He was arrested on 6-8-2010 and since then he is behind the bars. Moreover, it is also submitted that the appellant

is the only earning member in the family, and hence it is urged

that the offence punishable under Section 332 of IPC, under which the appellant is charged and convicted, be reduced to offence punishable under Section 324 of IPC and he be released

on the sentence already undergone i.e. about 16 months, by allowing the present appeal partly.

24. Learned APP countered the said arguments vehemently and submitted that the victims i.e. complainant PW 9 Sk. Gausoddin, PW 1 Sk. Raheem and PW 2 Prakash Navel were on duty as per Section 28 of the Bombay Police Act, 1951, which

(23) Cri. Appeal No. 347 of 2011

reads as follows :

"28(1) Every Police Officer not on leave or under suspension shall for all purposes of this

Act be deemed to be always on duty, and on Police Officer or any number or body of Police Officers allocated for duty in one part

of the State may, if the State Government or the Director-General and Inspector-General so directs, at any time be employed on Police duty in any other part of the State for so long

as the services of the same may be there required.ig (2) Timely intimation shall, except in cases

of extreme urgency, be given to the Revenue Commissioner and the District Magistrate, by the Director General and Inspector-General of any proposed transfer under this section, and,

except, where secrecy is necessary, the

reasons for the transfer shall be explained; whereupon the officers aforesaid and their subordinates shall give all reasonable furtherance to such transfer. "

Hence, it is submitted by the learned APP that it is amply clear that in view of Section 28 of the Bombay Police Act, aforesaid

victims were on duty and accused appellant assaulted them by sword i.e. deadly weapon while they were on duty, and the medical evidence supports to the injuries sustained by them. Moreover, it is submitted that the sword which was recovered at

(24) Cri. Appeal No. 347 of 2011

the instance of the appellant bore blood stains and the same was sent to the Chemical Analyser for examination purpose which

bore blood group of "AB", and the blood of the complainant PW

9 Sk. Gausoddin is also of same group, and hence, it is submitted that said corroborative piece of evidence is incriminating against the appellant.

25. Moreover, it is further canvassed that although five

witnesses out of ten witnesses examined by the prosecution

turned hostile, the testimonies of the complainant PW 9 Sk. Gausoddin, PW 1 Sk. Raheem and PW 2 Prakash Navel

corroborate with each other in respect of the occurrence of the incident and the said testimonies amount to incriminating piece

of evidence against the appellant, and connects him with the

crime. It is further submitted that the medical evidence adduced by the prosecution, through PW 8 Dr. Chandrashekhar Bhalerao and the injury certificates of the injured victims at Exhibits 36,

37 and 38, support ocular evidence of complainant PW 9 Sk. Gausoddin, PW 1 Sk. Raheem and PW 2 Prakash Navel, and the said ocular evidence, coupled with medical evidence, amounts to

incriminating piece of evidence against the appellant and connects him with the crime.

26. Accordingly, learned APP submitted that the trial

(25) Cri. Appeal No. 347 of 2011

court has scrutinized and appreciated the evidence and acquitted the accused no.1 / appellant herein for the offence punishable

under Section 307 of IPC, but convicted him for the offence

punishable under Section 332 of IPC and the view adopted by the learned trial court is a possible view, and apparently, there is no glaring mistake therein, and hence, no interference therein is

called for in the present appeal. Learned APP urged that the present appeal bears no substance, and the same is devoid of any

merits, and therefore, same be dismissed.

27. I have perused ocular, documentary evidence and

medical evidence adduced / produced by the prosecution and also considered the submissions advanced by the learned Counsel for

the parties, anxiously, and at the outset, the testimonies of PW 9

Sk. Gausoddin i.e. complainant, PW 1 Sk. Raheem and PW 2 Prakash Navel, apparently, corroborate with each other in respect of the occurrence of the incident, and sustaining injuries by them

at the hands of the appellant herein by way of sword i.e. deadly weapon. Moreover, testimonies of said victims are in consonance with each other in respect of the role of the accused /

appellant herein in the occurrence of incident, who caused injuries by sword to the said victims and they categorically stated that the accused was armed with sword at the time of occurrence of the incident and he gave blow thereof on the chest of Police

(26) Cri. Appeal No. 347 of 2011

Nayak PW 9 Sk. Gausoddin i.e. complainant, but the same was warded off by him, and therefore, he sustained bleeding injury on

the wrist of his left hand. At this juncture, PW 1 Sk. Raheem and

PW 2 Prakash Navel tried to catch hold of the accused but he also gave blows of sword on their persons and PW 1 Sk. Raheem sustained bleeding injury over his back and PW 2 Prakash Navel

sustained bleeding injury over his chest and right arm, and thereafter accused fled away by motorcycle, and the testimonies

of said victims are consistent in that respect. Moreover,

testimonies of said witnesses i.e. complainant PW 9 Sk. Gausoddin, PW 1 Sk. Raheem and PW 2 Prakash Navel have not

been shaken in the cross examination in respect of sustaining the injuries by them at the hands of the appellant / accused by deadly

weapon i.e. sword and although none of the independent

witnesses who had gathered at the spot of the incident was examined by the prosecution, since testimonies of the said witnesses are cogent and consistent in respect of the injuries

sustained by them at the hands of the accused by sword, same are required to be accepted and believed.

28. Turning to the medical evidence of PW 8 Chandrashekhar Bhalerao, who examined the said victims, has categorically stated that on examination of complainant PW 9 Sk. Gausoddin, he found incised wound having size of 10 cms. X 3

(27) Cri. Appeal No. 347 of 2011

cms. X 4 cms. on his left hand, lateral aspect of wrist, as well as, on examination of PW 1 Sk. Raheem, he found incised wound

admeasuring 8 cms. X 1/4 cms. X 1/4 cms. on his back towards

right side from midline towards scapula, and on examination of PW 2 Prakash Navel, he found following three injuries on his person, as mentioned below :

(i) Incised wound having size of 6 cms. X 1/4 cms.

X 1/4 cms. at his right arm.

(ii) Incised wound having size of 4 cms. X 1/2 cms.

X 1/2 cms. on right side of his chest above nipple, and

(iii) Incised wound having size of 5 cms. X 1/2 cm.

X 1/2 cm. on left arm towards dorsal aspect.

He also stated that he issued injuries certificates which are produced at Exhibits 36 to 38, respectively. He further stated that

the injuries sustained by all three patients were simple in nature, caused by hard and sharp object within 24 hours of his examination. He categorically stated that these injuries are

possible by blow of sword like Article "B". True it is, that he stated in his cross examination that the injuries mentioned in Exhibits 36 and 38 can be self-inflicted injuries, but significantly, said suggestion was not given to the aforesaid three victims in

(28) Cri. Appeal No. 347 of 2011

their respective cross examinations, and therefore, mere giving said suggestion to Medical Officer will not amount to

establishing the defence of the accused and will not suffice the

purpose. Moreover, injury certificate Exhibit 36, in respect of PW 9 Sk. Gausoddin, injury certificate Exhibit 37, pertaining to PW 1 Sk. Raheem and injury certificate Exhibit 38, regarding

PW 2 Prakash Navel, are in consonance with the testimony of PW 8 Dr. Chandrashekhar Bhalerao, and the said medical

evidence through the testimony of PW 8 Dr. Chandrashekhar

Bhalerao, and the aforesaid injury certificates cumulatively establishes that the aforesaid three victims, namely, complainant

PW 9 Sk. Gausoddin, PW 1 Sk. Raheem and PW 2 Prakash Navel sustained incised wounds which are simple injuries on the

parts of respective persons as specified therein by way of hard

and sharp object, and PW 8 Dr. Chandrashekhar Bhalerao has categorically stated in his deposition that the said injuries are possible by way of blow of sword like Article "B". Accordingly,

said medical evidence supports the ocular evidence of aforesaid victims i.e. PW 9 Sk. Gausoddin, PW 1 Sk. Raheem and PW 2 Prakash Navel, and therefore, the said ocular evidence of the said

three witnesses, coupled with the medical evidence, establishes beyond reasonable doubt that the accused voluntarily caused hurt i.e. bleeding injuries by means of sword i.e. deadly weapon to the aforesaid three victims.

(29) Cri. Appeal No. 347 of 2011

29. Now, the question arises, whether the said offence

comes under the purview of Section 332 of Indian Penal Code,

and the text of said Section 332 of IPC is re-produced here under for ready reference :

"Voluntarily causing hurt to deter public servant from his duty - Whoever voluntarily causes hurt to any person being a public

servant in the discharge of his duty as such public servant, or with intent to prevent or

deter that person or any other public servant from discharging his duty as such public

servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment

of either description for a term which may

extend to three years, or with fine, or with both."

30. Considering the ingredients of Section 332 of IPC, it is material to note that the person injured is necessarily required to be a public servant in the discharge of his duty as such public

servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, and hence, consequent question arises whether victims herein were were public servants lawfully discharging their duties at the

(30) Cri. Appeal No. 347 of 2011

relevant time, and also considering Section 28(1) of the Bombay Police Act, as re-produced herein above, in para no.24, and

coming to the evidence of complainant PW 9 Sk. Gausoddin, he

has stated that he was standing in front of Police Station to return to his house after completion of his duty. Moreover, PW 1 Sk. Reheem also stated in his deposition that he was assigned duty of

next day morning work during roll call, and further stated that his duty was over after the roll call was over, and he was about to

proceed to his house. He further admitted that all the Police

personnel i.e. PW 9 Sk. Gausoddin, PW 1 i.e. he himself, and PW 2 Prakash Navel were in civil dress at the time incident, and

he further admitted that the accused was not knowing him. Moreover, PW 2 Prakash Navel stated in his deposition that he

was standing near Police Station on the date of incident after

completion of his duty and PW 9 Sk. Gausoddin was attached to Dy.S.P. office at the relevant time, and therefore, he did not attend roll call, as well as, he stated that he was not knowing any

of the accused before the incident. Accordingly, testimonies of said three Police personnel amply make it clear that although as per Section 28(1) of Bombay Police Act they were deemed to be

on duty, they were not lawfully discharging their duties as public servants at the relevant time.

31. Moreover, PW 10 PSI Subhash Thembale i.e.

(31) Cri. Appeal No. 347 of 2011

Investigating Officer has admitted in the cross examination that he has not filed any document to show that all the said three

Police victims were on duty, and therefore, it is amply clear that

there is no cogent evidence on record to establish that the said three Police victims were lawfully discharging their duties as Police personnel / public servant at the relevant time, and hence,

provision of Section 332 will not be attracted in the instant case and the offence committed by the accused comes under the four

corners of Section 324 of IPC.

32. In the circumstances, I am inclined to accept the

alternative submission made by the learned Counsel for the appellant, and the appellant herein i.e. original accused no.1 is

required to be convicted and sentenced for the offence punishable

under Section 324 of IPC, quashing his conviction and sentence under Section 332 of IPC. Moreover, since he was arrested on 6-8-2010, and since then he is behind the bars, and since he has

already undergone more than 16 months sentence i.e. almost 2/3rd of the sentence, out of two years' sentence awarded to him, and since as canvassed, he is the only earning member in the

family, he is required to be awarded the sentence already undergone and deserves to be released by allowing the present appeal partly.

(32) Cri. Appeal No. 347 of 2011

33. In the result, present Criminal Appeal is allowed partly, and the conviction and sentence imposed upon the

appellant (original accused no.1), for the offence punishable

under Section 332 of Indian Penal Code, stands quashed and set aside, but the said appellant (original accused no.1) stands convicted for the offence punishable under Section 324 of Indian

Penal Code, and he is sentenced to suffer rigorous imprisonment for the sentence already undergone by him, and to pay fine of Rs.

1000/- (Rupees one thousand only), in default of payment of fine,

to suffer simple imprisonment for three months, and the appellant, who is in jail, be set at liberty forthwith, if not required

in any other case, and if the said amount of fine is paid, and the present Appeal stands disposed of accordingly.

( SHRIHARI P. DAVARE ) JUDGE

.........................

bgp/kapp347