Sudhakar Pandhari Titirmare (In ... vs State Of Maharashtra Thr. Police ...
2016 Latest Caselaw 6196 Bom

            J-apeal374.16.odt                                                                                               1/8  


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                            
                                               NAGPUR BENCH, NAGPUR




                                                                              
                                      CRIMINAL APPEAL No.374 OF 2016


            Sudhakar Pandhari Titirmare,




                                                                             
            Age about 48 years and 
            resident of Gunthara, Taluka Lakhani, 
            District Bhandara (In Jail)                                                 :      APPELLANT

                               ...VERSUS...




                                                          
            State of Maharashtra,
            Through Police Station Lakhani,
            District Bhandara.                                                           :      RESPONDENT
                                
            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
            Shri Shashikant Borkar, Advocate for the Appellant.
            Shri V.P. Gangane, Additional Public Prosecutor for the Respondent.
            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
      


                                                          CORAM  :   S.B. SHUKRE, J.

th DATE : 20 OCTOBER, 2016.

ORAL JUDGMENT :

1. This is an appeal preferred against the judgment and order

dated 15.9.2016, passed in Sessions Trial No.60/2011, by the Additional

Sessions Judge, Bhandara, thereby convicting the appellant of the

offence punishable under Sections 307 of the Indian Penal Code.

2. The facts of the case in brief as under :

The allegation against the appellant is that on 31.3.2011 at

J-apeal374.16.odt 2/8

about 8.00 p.m. when the complainant Umesh Sarve was proceeding on

bicycle with one Rakesh Meshram occupying a pillion seat of the bicycle,

the appellant suddenly came in front of the bicycle of the complainant

and Rakesh Meshram and asked them to stop. This spot was situated

near a culvert at Kanhalmoha. The complainant, however, did not pay

any heed to the move of the appellant and continued to ride the bicycle.

Seeing this, the appellant, carrying a knife in his hand, charged at the

complainant and gave its blow on the back portion of the complainant.

The complainant, therefore, alighted from the bicycle and a quarrel

between the complainant and the appellant ensued. In the quarrel, the

complainant felt that something had pierced his back and soon he

realized that the object which had pierced his back was a knife. By that

time some other persons had gathered at the spot. They were Sanjay

Sarve, Dashrath Jagnade and Devanand Chunorkar. Sanjay Sarve

removed the knife embedded in the back of the complainant. According

to the complainant, there was also present at that spot, his cousin,

Chandu Sarve, who had a grudge against the complainant and his family

members because of the land dispute pending between them. The

complainant lodged a F.I.R. on the next day and the appellant was

arrested. The investigation was carried out. The appellant was

prosecuted for an offence punishable under Section 307 of the Indian

Penal Code. On merits of the case, learned Additional Sessions Judge

J-apeal374.16.odt 3/8

found that the prosecution succeeded in proving beyond reasonable

doubt the offence of an attempt to commit murder punishable under

Section 307 of the Indian Penal Code with which the appellant was

charged and accordingly convicted him for the same. The appellant was

sentenced to suffer rigorous imprisonment for five years and also to pay

fine of Rs.5,000/- together with default sentence of rigorous

imprisonment for three months by the judgment and order dated

15.9.2016. It is the same judgment and order, which are under

challenge in the present appeal.

3. I have heard Shri Shashikant Borkar, learned counsel for the

appellant and Shri V.P. Gangane, learned A.P.P. for the State.

4. I have gone through the private paper book prepared from

out of the record of the sessions case filed on record of the appeal by the

learned counsel for the appellant. I have also considered the impugned

judgment and order.

5. According to the learned counsel for the appellant, this is a fit

case wherein benefit of doubt deserves to be given to the appellant as the

key witness, Ramesh Meshram, the only eye witness to the incident of

stabbing has not been examined in this case. Learned A.P.P. for the State

submits that the impugned judgment and order are proper as the

complainant's evidence is reliable.

6. It is seen from the evidence of the complainant, PW 1, Umesh

J-apeal374.16.odt 4/8

that there is a real doubt about as to who stabbed the complainant in his

back by means of a knife. The reason being that reaction of the

complainant, the PW 1 Umesh after receiving of a stab injury appears

unnatural. He has stated in his evidence before the Court that when he

did not stop his bicycle inspite of a call given by the appellant for

stopping of the bicycle, the appellant stabbed him in his back by means

of knife and then, he alighted from the bicycle and a quarrel ensued

between himself and the appellant. PW 1 has further stated that

Dashrath Jagnade and Deowanand Chunorkar (PW 6 and 7 respectively)

came there and intervened in the quarrel by separating both of them and

then he realized that something had pierced his back.

7. Learned counsel for the appellant submits that it cannot be

accepted that a person who has suffered a stab injury caused by sharp

edged weapon like knife would not realize the moment it is caused as it

would normally cause severe pain. So, first thing he would do learned

counsel submits, is to get down from the bicycle, look at the injury and

then do that which he thinks right. He submits that there is also an

admission given by PW 1 Umesh that he has no previous dispute with the

appellant and there was no enmity in between them. He points out from

the F.I.R. (Exh.-12) that the person, Chandu Sarve, with whom

admittedly he a had dispute, was also present at the spot, although PW 1

Umesh has not stated so in his substantive evidence before the Court.

J-apeal374.16.odt 5/8

But, he further submits that fact remains that there was a possibility of

Chandu Sarve also being present at the spot of incident and against this

background, it was essential for the prosecution to have examined the

only eye witness available in this case, Rakesh Meshram. He submits that

Rakesh Meshram was not examined and, therefore, serious doubt has

arisen about the creditworthiness of PW 1 Umesh.

8. Learned A.P.P. submits that it is a fact that Rakesh Meshram

was not examined as a prosecution witness. But, he further submits, the

evidence of PW 1 Umesh is sufficient to inspire the confidence of the

Court.

9. On overall consideration of prosecution evidence, I do not

think that the evidence of PW 1 Umesh could be taken as of reliable

nature. The reasons are not too far to seek. Admittedly, there has been

no enmity between the appellant and the complainant. This would

suggest that apparently there was no reason for the appellant to suddenly

launch an attack upon the appellant. Rather, admittedly the enmity was

with Chandu Sarve, who according to the complaint vide Exh.-12, was

already present at the spot of incident. Then, PW 1 Umesh did not

realize that he had a serious stab injury in his back immediately after it

was caused, it was caused according to his version when he was riding

the bicycle, and that he felt it only some time after he had alighted from

the bicycle, which appears to be improbable. PW 5 Dr. Gopal Vyas has

J-apeal374.16.odt 6/8

deposed that the injury was muscle and lung deep. If such was the

nature of injury, it does not appeal to reason that any person who suffers

such an injury would not feel the pain of the injury immediately after

suffering it. Therefore, as rightly submitted by the learned counsel for

the appellant, evidence of Rakesh Meshram, the eye-witness, has

assumed great significance. Unfortunately, he was not examined by the

prosecution. His non-examination as a witness, in the facts and

circumstances of this case would require this Court to draw an adverse

inference against the prosecution and it would be that he was not

examined because the incident did not take place in the manner and the

way it has been stated to have taken place by the complainant PW 1

Umesh. The prosecution has also not explained anything about the

presence of Chandu Sarve, with whom admittedly the appellant had a

previous dispute.

10. The prosecution has examined some other witnesses, namely,

PW 2 Sanjay Sarve, PW 6 Dashrath Jagnade and PW 7 Deowanand

Chunorkar. All of them having not seen the actual assault by means of

knife, would not help the case of the prosecution in any manner. Their

evidence together with the evidence of PW 1 Umesh would only show

that somebody caused stab injury to Umesh in his back and nothing

more. As stated earlier, Rakesh Meshram was the only eye witness

available so far as stabbing is concerned, and he was not examined in this

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case. Therefore, the doubts present in the prosecution case were not

removed.

11. Having considered the evidence of the prosecution so, I am of

the view that the prosecution has failed to establish beyond reasonable

doubt its case that in the night of 31 st March, 2011 at 8.00 p.m. near

culvert at Kanhalmoha the appellant assaulted the complainant PW 1

Umesh with an intention to kill him and caused him a stab injury in his

back by means of a knife. These aspects have not been considered by the

learned Additional Sessions Judge while passing the impugned judgment

and order. This is a fit case wherein benefit of doubt deserves to be

given the appellant.

12. The appeal is allowed.

13. The impugned judgment and order are hereby quashed and

set aside.

14. The appellant be released forthwith, if not required in any

other crime.

15. Fine amount, if paid, be refunded to the appellant.

                                               





                                                                                                         JUDGE



    okMksns





             J-apeal374.16.odt                                                                                               8/8  




                                                                                                            
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