Bombay High Court
Madukar S/O Suka Kusram vs The State Of Maharashtra on 16 December, 2016
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.36 of 2000
Madhukar son of Suka
Kusram,
aged about 38 years,
occupation - cultivator,
resident of Mouza Keselwada,
Police Station - Tirora,
Distt. Gondia. ..... Appellant.
Versus
State of Maharashtra,
through Police Station Officer,
Police Station,
Tirora,
Distt. Gondia. .... Respondent.
*****
None for the appellant.
Shri N.S. Rao, Addl. Public Prosecutor for the respondent-State.
*****
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CORAM : V.M. DESHPANDE, J.
Date : 16th December, 2016
ORAL JUDGMENT :
01. This appeal was admitted by this Court on 11th February,
2000. The appellant was enlarged on bail this Court vide order dated
25th February, 2000 by suspending the substantive jail sentence
imposed upon him by the learned court below.
02. The present appeal was called for final hearing on 14th
March, 2016. On that day, the learned counsel for the appellant, Shri
E.W. Nawab, made a statement that he has filed a Pursis stating that
after the appellant was released on bail, he did not meet him and has
not given any further instructions. It is also stated that in spite of the
registered letters, the appellant did not contact him, since the
appellant was not residing on the same address. In that view of the
matter, this Court [ Coram : Z.A. Haq, J.] on 14th March, 2016
cancelled the bail and surety amount was forfeited and a non-bailable
warrant was issued to secure the presence of the appellant. The
matter was made returnable on 28th March, 2016.
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03. On 28th March, 2016, the matter was adjourned to 11th
April, 2016, since there was no report of execution of non-bailable
warrant. On 11th April, 2016, this Court issued a fresh non-bailable
warrant to secure the presence of the appellant by 5th May, 2016.
04. The record of this appeal shows that on 5th May, 2016, the
appellant was brought before the Court in custody. Shri E.W. Nawab
put in his appearance for the appellant. Therefore, this Court [Coram :
Z.A. Haq, J.] released the appellant on bail on the same bond executed
by him in pursuance of the order passed by this Court on 25th
February, 2000.
05. Today, when the appeal was called for final hearing, neither
the appellant nor his counsel is present in the Court. No request is
also made on behalf of the appellant for any adjournment. Looking to
the past conduct of the appellant that though he was enjoying
discretionary relief exercised in his favour, he failed to co-operate with
this Court for disposal of appeal at the final hearing stage. Therefore,
this Court has proceeded with the matter with the assistance of
learned Public Prosecutor, Shri N.S. Rao.
The law on the point is also well settled by now in view of
the Apex Court's decision in K. S. Panduranga Vs. State of
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Karnataka [2013 ALL MR (Cri) 1485 (SC)].
06. The present appeal is directed against the Judgment and
Order of conviction passed by learned Special Judge, Gondia, dated
19th January, 2000 in Special Case No. 8 of 1996. By the impugned
judgment, the appellant is convicted of the offence punishable under
Section 326, Indian Penal Code, and is directed to undergo Rigorous
Imprisonment for seven years and to pay a fine of Rs. 1500/- and in
default of payment of fine, to suffer further Rigorous Imprisonment for
six months.
07. Initially, the appellant along with two others by names
Bhivram Baliram Dhote and Urkuda alias Mehtar Wasudeo Kukde were
charged by the learned Special Judge for the offence punishable under
Section 307 read with Section 34, Indian Penal Code, and under
Section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The learned Judge of the court
below, after a full-fledged trial, acquitted all the accused including the
appellant of the offences punishable under Section 307 read with
Section 34 of Indian Penal Code, and Section 3 (1) (x) of the Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989.
However, the learned Judge found that the appellant is guilty of
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committing an offence under Section 326, Indian Penal Code, and
accordingly, he was convicted and sentenced.
No appeal was preferred by the State against the acquittal.
08. The first informant is Biran Dhurve [PW 10]. He lodged a
report with Police Station, Tirora, on 4th February, 1996. His oral
report is at Exh.45. On the basis of oral report, a crime was registered
against the appellant and others vide Crime No. 18/96 under Section
307 read with Section 34 of Indian Penal Code. The printed FIR is at
Exh.48.
09. As per the First Information Report, on 3rd February, 1996,
at 10.00 O'clock, when the first informant was going to the house of
his maternal uncle, Sakharam, which is situated in village Kesalwada
itself, the appellant and other acquitted accused assaulted him on
account of old enmity. The oral report states that appellant assaulted
the first informant - Biran on his head by means of an axe, whereas
the two other accused gave stick blows.
10. The oral report is dated 4th February, 1996. The oral report
was reduced by ASI Mr. Bhure of Police Station, Tirora. PW 11 -
Sukhadeo Aher, who was attached to Police Station, Tirora, identified
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the signature of ASI Mr. Bhure. Sukhadeo Aher [PW 11] was entrusted
with the investigation. The injured was referred to the Rural Hospital,
Tirora.
11. Dr. Prashant Winedeshkar [PW 2] was discharging his
duties as a Medical Officer at Rural Hospital, Tirora. He examined
Biran, the injured, who was brought to the hospital by police on 4th
February, 1996 at 10.35 a.m. On examination, he found the following
injuries:-
"1] Deep incised wound horizontal over right occipital
region. Dimension 2½ inch length, breadth ½ inch,
depth ½ inch. There was a fracture to the skull
with gaping between the fracture. Visualising brain
externally with slight oozing of blood.
2] Lacerated wound over left occipital region.
Longitudinal by size ½ cm deep x 2½ inch x ½ inch.
3] Loosened tooth second Molar Lower Jaw.
4] Abrasion over face just below left infraorbital
region.
5] Abrasion over face, Mallor prominence."
The doctor prepared the Injury Certificate [Exh.28]. According to the
doctor, Injury No.1 was grievous one. The age of the injuries was said
to be twelve to fourteen hours.
12. On being so entrusted with the investigation, PW 11 -
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Sukhadeo Aher visited the spot. He recorded Spot Panchanama in
presence of Panchas [Exh.49]. He also seized both blood-smeared as
well as simple earth and two small stones having blood stains from the
spot under Seizure Memo [Exh.50]. He also recorded statements of
the witnesses. He also seized the blood stained clothes of the injured
when he was admitted at K.T.S. Hospital, Gondia. The Seizure
Panchanma to that effect is at Exh.46. All the accused persons were
arrested by him on 5th February, 1996.
When the appellant was in police custody, he made a
disclosure statement and agreed to show the place where he
concealed the weapon of assault. Accordingly, on his direction, the
police party went to his house from where the appellant produced the
axe from the place where it was concealed. The memorandum
statement is at Exh.51, whereas Recovery Panchanama is at Exh.52.
Exh.52 shows that the weapon was sealed on the spot itself.
13. The Investigating Officer thereafter sent the weapon to Dr.
Winedeshkar under his requisition [Exh.55] and sought his opinion as
to whether the injury suffered by the injured can be caused by the
weapon. The weapon reached to Dr. Winedeshkar in a sealed
condition. Dr. Winedeshkar examined the same and gave his opinion
[Exh.29] by which he opined that injury no.1 found on the person of
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Biran can be caused by the said weapon.
After completion of other usual investigation, the final report
was presented in the Court of Law.
14. As observed above, the charge was framed against the
appellant and two others for the offences punishable under Section
307 read with Section 34 of Indian Penal Code, and under Section 3 (1)
(x) of the Scheduled Castes & Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
15. In order to substantiate its case during the course of trial,
the prosecution has examined in all twelve witnesses. Though twelve
witnesses were examined, the evidence of Dr. Prashant Winedeshkar,
Medical Officer [PW 2], Biran, the injured [PW 10], Sukhadeo Aher,
Investigating Officer [PW 11] and Ranibai, the wife of the injured [PW
12] is to be examined while re-appreciating the case of the
prosecution. PW 9 is one Bansilal, a police personnel, who took the
accused persons to the Primary Health Centre for collection of their
blood samples. The Prosecution Witnesses 1 to 8 have turned hostile
and their evidence is hardly material for deciding the present appeal.
16. Learned Addl. Public Prosecutor, Shri N.S. Rao, took me
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through the entire record and proceedings and notes of evidence in
detail. He submitted that the prosecution is successful in bringing
home the guilt of the appellant for the offence punishable under
Section 326, Indian Penal Code. He submitted that evidence of injured
PW 10 - Biran and PW 12 - Ranibai, his wife, has remained unshaken
during their cross-examination. He also submitted that there was no
reason for these two prosecution witnesses to make any false claim
against the present appellant. He, therefore, submitted that appeal be
dismissed.
17. The Injury No.1 is reproduced again herein below:-
"1] Deep incised wound horizontal over right occipital
region. Dimension 2½ inch length, breadth ½ inch,
depth ½ inch. There was a fracture to the skull
with gaping between the fracture. Visualising brain
externally with slight oozing of blood."
According to Dr. Winedeshkar [PW 2], said injury was grievous in
nature. Dr. Winedeshkar specifically denied the suggestion given to
him during his cross-examination by the learned defence counsel that
the said injury can be caused if a man falls on a sharp object.
When the axe was referred to Dr. Windedeshkar by the
Investigating Officer, he noticed that the length of the said was 2 feet
and diameter 3½ inches and arc was metallic having a length of 4¾
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inches and its blade was 2½ inches. From this description of the
weapon given by the doctor, it is crystal clear that the weapon was a
dangerous one. Further, the doctor found that when the weapon was
referred to him, it was in a sealed condition. Exh.29 - Query Report
specifically mentions that the weapon was sealed and it was opened in
the presence of Investigating Officer. Evidence of Dr. Winedeshkar
shows that after the examination, he again re-sealed the axe and
handed over the same to the police. Said statement of Dr.
Winedeshkar is not at all challenged during the course of his cross-
examination.
18. As per the C.A. Report [Exh.57], the blood group of Biran
was determined as 'B'. Exh.58 is the C.A. Report in respect of the
articles which were sent to the Chemical Analyzer by the Investigating
Officer. Exh.58 - C.A. Report shows that the weapon, i.e., axe, was
having human blood of Group 'B'. No explanation is offered and/or
given by the appellant-accused during his examination under Section
313, Criminal Procedure Code, in respect of noticing of blood of Group
'B' on the axe, which was seized from his possession.
19. Evidence of Biran shows that there was an old dispute
between him and appellant - Madhukar. His evidence is on the line of
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oral report which he lodged. Though some discrepancies are noticed,
in my view, those are minor in nature. Those discrepancies are not of
such a nature by which it could be said that the core of the prosecution
case is disturbed.
20. Though the incident is dated 3rd February, 1996, FIR was
lodged on 4th February, 1996. It is to be seen that the incident has
occurred in the winter season at 10.00 O'clock in the night at village
Kesalwada. The printed FIR shows that the distance between
Kesalwada and Police Station Tirora is about twelve kilometers.
Evidence of Ranibai, the wife of the injured, shows that after taking her
husband to her house, she visited the house of Police Patil and
requested him to give the report in writing. Her evidence shows that
Police Patil flatly refused to accede to her request. This particular
aspect is not at all challenged when Ranibai was available for her
cross-examination.
Since the incident has taken place in the night hours at a
village which is twelve kilometers away from the Police Station and
though an attempt was made by the wife of the injured to lodge a
report with Police Patil, albeit in vain, in my view, when the matter was
reported to the police on the next day morning at about 9.50 a.m., the
prosecution case cannot be thrown for delay in lodging the First
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Information Report.
21. When injured was cross-examined, a suggestion was given
to him that he is a criminal minded person which he has denied.
However, he admitted that for some period, he was in jail on a false
charge of theft. From the tenor of the cross-examination, it is clear
that no further questions were asked to him in respect of the said case.
When character of a witness is sought to be questioned, fullest
opportunity should be given to him to explain. There is nothing
available on record to show that whether Biran was convicted or
acquitted in that theft case and/or whether the said theft case was
relevant to any First Information Report lodged by the present
appellant. In that view of the matter, merely because for some days,
he was in jail as admitted by him, that by itself does not render the
otherwise trustworthy evidence of Biran as a trash.
22. Though the other witnesses have turned hostile, in my view,
it has a little impact on the prosecution case, inasmuch as when the
injured has stood to the searching cross-examination of the learned
cross-examiner and from his evidence, it is crystal clear that the
appellant has inflicted a blow of axe on his head, there is no reason to
disbelieve him. Further, there is no improvement in his evidence in
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respect of the role attributed to the appellant with the weapon which
he used as it could be seen from the oral report [Exh.45].
23. On the re-appreciation of evidence, I am of the view that the
prosecution was successful in proving its case against the appellant for
the offence punishable under Section 326, Indian Penal Code.
24.
The incident is dated 3rd February, 1996. Thus, it has
occurred about twenty years back. Moreover, at the time of incident,
the appellant was forty years' old and now he sixty. There is nothing
on record to show that after the said incident, any untoward incident
has further occurred in between the appellant and the injured. The
evidence of Ranibai shows that at the time of recording her evidence,
she was residing at a different village. In my view, therefore, some
leniency can be shown in favour of the appellant. Therefore, in my
view, the Judgment and Order of conviction of the learned Judge of the
court below can be interfered with only in respect of the quantum of
sentence imposed upon appellant and, therefore, I modify the order of
sentence. The sentence of seven years as imposed by learned Trial
Court is modified and appellant is directed suffer Rigorous
Imprisonment for three years.
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25. The appellant is given time of four weeks to surrender; else
the learned court below to take necessary steps to procure his
presence for serving out the sentence. Appeal is, thus, partly allowed.
Judge
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