Pratapsing Ratansing Sikkalka vs The State Of Maharashtra
2016 Latest Caselaw 1395 Bom

                                                                           71.01crrevn
                                            -1-




                                                                            
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                    
                  CRIMINAL REVISION APPLICATION NO. 71 OF 2001

     Pratapsing s/o Ratansing Sikkalka,
     Age: 40 years, Occ: Labour,
     R/o. New Bridge, Nyayanagar,




                                                   
     Cidco, Nanded.                                    ...Applicant

              versus

     The State of Maharashtra                          ...Respondent




                                          
                              ig          .....
              Mr. A.B. Gaikwad, Advocate for applicant
              Mr. R.V. Dasalkar, A.P.P. for respondent
                                          .....
                            
                                              CORAM : N.W. SAMBRE, J.

                                              DATE :      11th APRIL, 2016
   



     ORAL JUDGMENT :

This revision application is against the order passed by

4th Assistant Sessions Judge, Nanded on 20/03/1993, convicting the

applicant under Section 235(2) of the Code of Criminal Procedure for

the offence punishable under Section 307 of the Indian Penal Code,

sentencing him to suffer rigorous imprisonment for five years and

payment of fine of Rs.500/-, in default to suffer rigorous imprisonment

for six months. The appeal of the present applicant before the

Sessions Judge, Nanded, has resulted into modification of the

sentence and present applicant was made to suffer rigorous

71.01crrevn

imprisonment for two years alongwith fine as ordered by learned

Assistant Sessions Judge.

2. Heard Mr. A.B. Gaikwad, learned Counsel for the

applicant and Mr. R.V. Dasalkar, learned A.P.P. for the State.

3. Learned Counsel for the applicant, while trying to make

out a case for showing indulgence, would urge that there is hardly

any material on record to implicate the applicant in the crime in

question. He would submit that the prosecution story, as narrated

against the present applicant is, on 01/04/1991 Manjeetsing,

complainant alongwith Papindersing, Umesh and Balaji had gone to

Navjeevan Permit Room situated at ground floor of Nirose Lodge at

old Mondha, Nanded and consumed liquor and eatables of Rs. 175/-.

As they were short of amount to clear the bill, they sought credit,

which was refused by the Manager resulting into quarrel between

them and manager. The present applicant, who was posted as

Watchman, tried to intervene in the matter, however, since the

complainant and other persons were under the influence, they

abused the applicant-accused, resulting into the applicant attacked

the victim Papindersingh by the dagger, resulting into causing of

injury in the stomach. It is claimed by prosecution that the part of

intestine has protruded through the stomach because of injury in

71.01crrevn

question and as such, the present applicant was charge sheeted for

the offence punishable under Section 307 of the Indian Penal Code.

4. While trying to make out a case for grant of acquittal,

learned Counsel for the applicant-accused submits that the

conviction of the applicant cannot be sustained, in view of the fact

that neither blood stains could be noticed on the shirt of victim

Papindersing nor any blood stains could be found on the dagger

seized from the custody of the applicant. He would then took me

through the entire evidence and submits that there is hardly any

material on record to connect the present applicant to the crime in

question.

5. Learned A.P.P. supports the findings recorded by both

the Courts below and sought dismissal of the present revision.

6. Upon perusal of the record, it depicts that the

prosecution has recorded the evidence of PW-3 Manjieesingh, who is

the complainant at Exhibit-16, PW-4 Papindersingh at Exhibit-18, and

PW-5 Umesh at Exhibit-19, so as to prove the alleged incident. Apart

from above, the Medical evidence tendered by PW-1 Dr. Dinkar

Kotalwar at Exhibit-11, PW-2 Kishor Chatiwar, panch witness on the

spot panchnama at Exhibit-13, PW-6 Pradip, panch on panchnama of

71.01crrevn

seizure of blood stains clothes of victimat Exhibit-20, PW-7 Vilas,

panch witness for recovery of dagger from the accused at Exhibit-22

and PW-8 Manchak Khomne, P.S.I., the Investigating Officer at

Exhibit-25. The prosecution has established that the complainant

Manjeetsing alongwith other companions have consumed liquor and

eatable, however, being short of amount for settling the bill,

Papindersingh offered his wrist watch towards security of balance

amount, manager of permit room declined the same and was

insisting upon the payment. It is then noted that present applicant

intervened and asked the complainant to pay money, however

difference ensured between Papindersing and present applicant. Hot

words were exchanged between Papindersingh and the accused,

resulting into present applicant whipping out dagger and stabbing

PW-4 Papindersing on the stomach. It is then claimed that the said

contents corroborates with the F.I.R. Exhibit-17 and the victim, then

has identified assailant and dagger Article-1. Though it is claimed by

complainant Manjeeetsingh and victim Papindersingh that they have

not consumed any liquor, however their conduct of not controlling the

accused speaks about their position and as such, their deposition to

the extent that they have not consumed liquor does not inspire

confidence. It is also noted that there was heavy traffic on the place

of incident being part of commercial locality.

71.01crrevn

7. The evidence of Dr. Kotalwar speaks of stab injury and

the fact remains that none of the persons who accompanied the

victim tried to nab or chase the accused on the spot.

8. The evidence of PW-1 Dr. Kotalwar if perused, he claims

that there was a stab injury on the right iliac region 2"x 1" intestinal

loop protruding out. According to him, the injury was grievous one

and was caused by sharp edged weapon. He has issued medical

certificate Exhibit-12 to that effect.

9. It is then required to be noted that Article-1 dagger is

claimed to have been used in the commission of crime in question.

The evidence of PW-2 Kishor, panch to the spot panchnama, though

supports the same, however, it is to be noted that in the spot

panchnama, it is stated that blood stains are found at three places,

however such blood stains could not be noticed at Exhibit-14, spot

panchnama, which was drawn on the next day.

10. Though shirt of the victim was seized, the same was in

torn position from front side. Panchnama Exhibit-21 of the seizure of

the said shirt does not speak of any blood stains on the same and

also the said shirt was not sent for chemical analysis, so as to find

out whether blood stains match with that of blood group of the victim.

71.01crrevn

Though dagger was shown to have been seized at Exhibit-23,

however, no blood stains could be noticed on the same nor the said

weapon was sent for chemical analysis.

11. In the above referred background, it could be inferred

that in the spot panchnama, no blood stains could be noticed on the

spot of incident, shirt of victim Papindersingh, which was seized vide

panchnama at Exhibit-21 does not show any blood stains.

ig It is

claimed that he was attacked with a dagger and part of his intestine

was protruded from stomach towards outside and blood was oozing

out of the same and fall on the marble floor.

12. Even if from the above referred evidence discussed, it

could be noted that victim Papindersingh suffered injury, however, to

infer that the said injury was caused by present applicant, particularly

with use of dagger, which does not contain blood stains, absence of

any blood stains on the shirt of victim Papindersingh, which was

seized and failure of prosecution to establish that the victim

Papindersingh suffered injury because of attack by dagger made by

the applicant, in my opinion, prompt me to take only conclusion that

the case of prosecution for convicting the present applicant for the

offence punishable under Section 307 of the Indian Penal Code is not

proved beyond reasonable doubt.

71.01crrevn

13. As such, in my opinion, the present criminal revision

application is liable to be allowed. The judgment and conviction

delivered by learned Sessions Judge on 13.03.2001 in Criminal

Appeal No. 28 of 1993 is hereby set aside. It is declared that the

applicant herein is acquitted of the offence punishable under Section

307 of the Indian Penal Code for attempting to commit murder of one

Papindersingh. His bail bond stands cancelled.

ig Fine amount be

refunded to the applicant, if already paid.

14. The criminal revision application stands allowed in above

terms.

[ N.W. SAMBRE, J. ]

Tupe/11.04.16