Bombay High Court
Yuvraj Dadarao Kamble vs State Of Maharashtra on 9 March, 2016
Bench: S.S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 721 OF 1996
Yuvraj Dadarao Kamble,
Age : 20 years, Occ. Service,
R/at 10, Janwadi,
Janta Vasahat, Pune 16. ... Appellant.
Versus
The State of Maharashtra. ig ... Respondent.
---
Mr. Ujwal Gandhi, Advocate appointed for Appellant.
Mrs. A.A. Mane, APP for State.
---
CORAM : SMT. SADHANA S. JADHAV,J
DATE : MARCH 9, 2016
JUDGMENT:
1 None appears for the appellant. None appeared for the
appellant. This Court (Coram : R.C. Chavan, J) had issued bailable
warrant. The said warrant was recalled on 28/2/2013 since
Advocate Mr. Sachin Thombre had appeared for the appellant and
requested that the warrant be recalled, subject to the cost of Rs.
1,000/-. On 12/6/2015 none appeared for the appellant. Hence,
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this Court (Coram : Abhay M. Thipsay, J) had directed the office to
give intimation to the advocate for the appellant requesting him to
remain present in the court. Thereafter, the matter was adjourned
from time to time. None appeared for the appellant on 12/8/2015,
21/8/2015 and 6/10/2015. Hence, this Court has requested Mr.
Ujwal Gandhi to espouse the cause of the appellant. He has
graciously accepted the request made by this Court.
2 The appellant herein is convicted for an offence punishable
under Section 307 of the Indian Penal Code and sentenced to suffer
R.I. for 5 years and to pay fine of Rs. 500/- I.d to suffer R.I. for one
year by the 4th Additional Sessions Judge, Pune in Sessions Case No.
398 of 1993 vide Judgment and Order dated 3/12/1996.
3 Such of the facts necessary for the decision of this appeal are as
follows:
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(i) Rajendra Dabi was running Ration shop at Arun Kadam Square,
Janwadi, Pune. He was also running lottery shop at Deep Bunglow
Square, Pune.
(ii) On 16/4/1993 at about 4 p.m. Rajendra Dabi was in the said
ration shop. His parents were also present in the shop. At about 7
p.m. the accused had been to the shop alongwith a boy having
canister. The said boy was a minor aged about 10 to 12 years only.
(iii) Upon enquiry by the accused, the complainant had informed
that no kerosene was available in the shop. The accused had
attempted to enter into the shop. He had expressed his intention to
personally verify as to whether kerosene was available or not. The
complainant protested the entry of the accused in the shop.
(iv) Being aggrieved by the said act, the accused inflicted a blow of
sickle on the complainant, which had landed on right fore arm and
right side of chest. The complainant sustained bleeding injury and
fell down.
(v) Soon after the incident, the accused had fled from the scene of
offence. The parents of the complainant were present in the shop.
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The injured was taken to Janwadi Police Station by his parents. The
police had issued a requisition to Sassoon Hospital. The injured was
taken to Sassoon Hospital. An intimation was sent to Chaturshringi
Police Station by the Hospital.
(vi) Upon receipt of information, the police had approached to the
injured in the hospital in Ward No. 7 and had recorded his statement.
On the basis of his statement, Crime No. 105 of 1993 was registered
at Chaturshrungi Police Station.
(vii) The accused was arrested on 17/4/1993. He was released on
bail by an order dated 5/5/1993.
(viii) After completion of investigation, charge-sheet was filed. Since
the charge-sheet was filed for offence punishable under Section 307
of the Indian Penal Code, the case was committed to the Court of
Sessions and registered as Sessions Case No. 398 of 1993.
4 The prosecution examined 6 witnesses to bring home the guilt
of the accused.
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5 P.W. 1 Rajendra Pratapmal Dabi is the injured complainant. He
has deposed before the Court that on 16/4/1993 at about 6.30 p.m.
one person had come to the shop alongwith a young boy. That P.W. 1
had informed him that kerosene was not available. The accused
wanted to verify the same and therefore, attempted to enter into the
shop. P.W. 1 objected the entry of the accused. The accused had
attempted to hit P.W. 1 with sickle. P.W. 1 tried to ward off the
attack and in the said transaction he had sustained injury to his right
fore arm and right side of chest and right thumb. He fell on the
ground. His parents had taken him Janwadi Police Station and from
there to Sassoon Hospital. On the same day, his statement was
recorded by the police. According to P.W. 1, he was treated as
injured patient for a period of 8 days. In the cross-examination, the
witness has admitted that he had no knowledge as to whether the
accused was a ration card holder of his ration shop. He had not
enquired with the accused as to whether he holds ration card. He
was distributing grains to the customer. The accused was at a
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distance of 2 or 3 feet from him. The accused appeared to be
aggressive.
6 P.W. 1 has admitted that he did not know the accused before
16/4/1993. He did not know the name of the accused even at the
time of the incident.
7 It is pertinent to note that P.W. 1 has identified the accused
before the Court. No test identification parade was held. It was
necessary for the investigating agency to carry out the test
identification parade.
8 P.W. 2 Sharad Bhosale who is the panch to the seizure
panchanama has been declared hostile by the prosecution.
9 P.W. 3 Pratapmal Dabi happens to be the father of the injured.
It is elicited in the cross-examination that the accused is not a ration
card holder of his shop before 16/4/1993. He had never been to the
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shop for purchasing grains or other articles. It is also elicited that at
the time of incident, no other customer was in the shop. P.W. 3 had
also requested the accused not to enter into the shop. The accused
opened the plank of the counter by one hand pushing by pushing
P.W. 1 and entered into the shop. The incident lasted for about 3
minutes. The shop is situated in hutment area. P.W. 3 was convicted
and sentenced to imprisonment for two years. He had learnt the
name of the accused subsequent to lodging of the report.
10 P.W. 4 Dr. Vishnu Laxman Ughade had treated P.W. 1 in
Sassoon Hospital. According to P.W. 1, injured had sustained incised
wound over right arm upper third, measuring 3 inch x 1 inch x 1/10
inch and incised wound over chest measuring 1 inch x 1/10 inch x
1/10 inch. He has proved the injury certificate, which is marked at
Exh. 9. According to P.W. 4, said injuries were sufficient in the
ordinary course of nature to cause death.
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11 P.W. 5 Subhash Kapre was PSI attached to Chatushringi Police
Station. He had arrested the accused on 17/4/1993 in Crime No. 105
of 1993.
12 P.W. 6 Bapurao Vithoba Bhat is the investigating officer. He has
deposed before the Court that the injured Rajendra Dabe had
informed that he was assaulted by one unknown person. The injured
was sent to the hospital with requisition letter. He had conducted the
investigation in accordance with law. There was a recovery of
weapon at the instance of the accused. He has admitted in the cross-
examination that he has not recorded statement of the boy who was
accompanied the accused at the time of the incident.
13 The learned Counsel appointed for the appellant submits that
in fact, according to P.W. 1, at the time of incident, there were
several customers in the shop and that he was distributing grains to
them. The said statement is not corroborated by P.W. 3 who happens
to be the father of the injured and according to P.W. 3, there was no
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customer in the shop at the time of incident. According to the
learned Counsel appointed for the appellant, P.W. 3 has deposed
accordingly only in order to eliminate any independent witness.
There is no eye witness to the incident and therefore, the case rests
upon the deposition of P.W. 1 and P.W. 3, who have categorically
stated that the present appellant happens to be the author of the said
injury.
14 It is further submitted that in the absence of test identification
parade, the identification in court as substantive evidence would
have no relevance or significance for the simple reason that the
accused happens to take a particular seat at the trial and on the basis
of the said fact the witness can identify the person as the accused.
15 The learned APP submits that the accused has not challenged
the same by way of cross-examination. Moreover, in the statement
under Section 313 of the Code of Criminal Procedure, 1973, the
accused has stated that he is not concerned with the incident and he
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was picked up from his house at about 9 p.m. The learned APP
submits that the report of the Chemical Analyser would also show
that blood stains of the injured were found on the weapon which was
recovered at the instance of the accused.
16 It cannot be said that the appellant has been falsely implicated
for the simple reason that there was no motive for false implication
by the complainant. Identification in the court is a substantive
evidence coupled with the fact that there is recovery of sickle at the
hands of the appellant. That P.W. 1 has categorically stated that he
tried to ward of the injuries. The sickle had landed upon his right
fore arm and right side of the chest. The injury on the chest is the
extension of the injury on the fore arm. It appears that P.W. 1 and
P.W. 3 were not distributing goods in accordance with law and being
enraged with the same, the accused wanted to verify as to whether
the stock was available or not. The accused had no motive to assault
P.W. 1. It was on the spur of the moment. That the accused had
assaulted P.W. 1. It can not be said that the appellant had attempted
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to murder the injured P.W. 1, but it was a voluntary hurt caused by
the appellant.
17 Section 324 of the Indian Penal Code reads thus :
"324. Voluntarily causing hurt by dangerous weapons or
means.--Whoever, except in the case provided for by section
334, voluntarily causes hurt by means of any instrument for
shooting, stabbing or cutting, or any instrument which, used as
weapon of offence, is likely to cause death, or by means of fire
or any heated substance, or by means of any poison or any
corrosive substance, or by means of any explosive substance or
by means of any substance which it is deleterious to the human
body to inhale, to swallow, or to receive into the blood, or by
means of any animal, shall be punished with imprisonment of
either description for a term which may extend to three years,
or with fine, or with both."
In view of this, it is clear that the appellant has voluntarily caused
hurt by dangerous weapon. Hence, the appellant deserves to be
convicted for the offence punishable under Section 324 of the Indian
Penal Code.
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18 The applicant was in jail from 17/4/1993 to 12/5/1993 and
from 3/12/1996 to 22/12/1996. Hence he deserves to be sentenced
to the period already undergone and sentence of fine deserves to be
maintained.
Before parting with the judgment, this Court appreciates
learned Advocate Mr. Ujwal Gandhi, for his best efforts put in to
espouse the cause of the appellant. His professional fees are
quantified at Rs. 1500/- to be paid to him within 3 months from
today.
20 Hence, following order is passed :
ORDER
(i) The appeal is partly allowed.
(ii) Conviction of the appellant for the offence punishable under
Section 307 of the Indian Penal Code vide Judgment and Order dated
3/12/1996 passed by the 4th Additional Sessions Judge, Pune in
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Sessions Case No. 398 of 1993 is hereby quashed and set aside.
Instead, the appellant is convicted for the offence punishable under
Section 324 of the Indian Penal Code and sentenced to the period
already undergone. The sentence of fine is maintained.
(iii) The bail bond stands cancelled.
The Appeal is disposed of accordingly.
(SMT. SADHANA S. JADHAV,J)
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