Bombay High Court
State Of Maharashtra vs Shivaji Purbhaji Shinde And ... on 8 September, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 109 OF 1999
The State of Maharashtra,
Through : Police Station, Purna,
Tq. Purna, Dist. Parbhani ..APPELLANT
(Prosecution)
VERSUS
1. Shivaji S/o Purbhaji Shinde,
Age : 32 years, Occ.: Agri.,
R/o Barbadi, Tq. Purna,
Dist. Parbhani
2. Raosaheb S/o Zelaji Shinde,
Age : 37 years, Occ.: Agri.,
R/o Barbadi, Tq. Purna,
Dist. Parbhani
3. Baliram S/o Rama Shinde,
Age : 32 years, Occ.: Agri.,
R/o Barbadi, Tq. Purna,
Dist. Parbhani ..RESPONDENTS
(Ori. Accused)
----
Mrs. Vaishali N. Jadhav-Patil, A.P.P. for the
Appellant/State
Mr. M.P. Kale, Advocate for respondent nos. 1 and 2
None for respondent no. 3 though served.
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : 19th AUGUST, 2016
PRONOUNCED ON : 8th SEPTEMBER,2016
::: Uploaded on - 08/09/2016 ::: Downloaded on - 15/09/2016 00:05:12 :::
2 criapeal109-1999
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
This is an appeal against the judgment and
order dated 14.10.1998, delivered in Sessions Trial
No.108 of 1996 by the learned Sessions Judge,
Parbhani, whereby respondent nos.1 to 3 came to be
acquitted of the offences punishable under sections 307
and 342 of the Indian Penal Code (for short, "I.P.
Code").
2.
Briefly, the case of the prosecution is that
there was some dispute between the informant viz:-
Vikram Tukaram Solav, resident of Barbadi, Taluka
Purna, District Parbhani and respondent no.2 on
account of agricultural land bearing Block No.133
admeasuring 1 H 13 R situate within the local limits
of village Adagaon. The Tahasildar, Purna passed an
order on 16.09.1995 in favour of the informant in
respect of that land. It is alleged that on 26.10.1995
at about 8.30 p.m., when the informant was going to his
agricultural land from his village Barbadi, the
respondents restrained him on the way near a Tower.
They uttered that the informant was troubling them very
much. Thereafter respondent no.3 gave sword blow on the
3 criapeal109-1999
left wrist of the informant, while respondent nos.1 and
2 gave sword blows on his head. The informant sustained
bleeding injuries on his wrist and head. He started
shouting. On hearing his shouts, one Sitaram Gound,
Gangadhar Bhore and others rushed to the spot of the
incident. The informant had caught hold of respondent
no.1. However, by giving a jerk to the informant, he
fled away with the sword.
3.
The informant immediately went to Police
Station, Purna alongwith Sitaram Gound, Gangadhar Bhore
and Datta. He narrated the incident before the police.
The police recorded his First Information Report
("report" for short). On the basis of that report,
Crime No.120 of 1995 came to be registered against the
respondents for the offences punishable under sections
307 and 341 read with section 34 of the I.P. Code.
4. The informant was referred to the Medical
officer for examination and treatment at Purna in the
same night, from where he was referred to the
Government Hospital at Nanded. He was admitted there
as an indoor patient for a period of six days. The
investigation followed. The spot panchanama was
4 criapeal109-1999
prepared. The statements of witnesses were recorded.
The respondents were arrested. The clothes of the
informant and that of the respondents came to be
seized. The swords used in the commission of the
alleged offences came to be discovered at the instance
of the respondents. The seized articles were sent to
the Chemical Analyser for examination and report. After
completion of the investigation, the respondents came
to be charge-sheeted for the above mentioned offences
in the Court of the learned Judicial Magistrate First
Class, Basmat.
5. The offence punishable under section 307 of
the I.P. Code, being exclusively triable by the
Sessions Judge, the case was committed to the Sessions
Court for trial.
6. The learned Sessions Judge framed the charges
against the respondents for the above-mentioned
offences vide Exhibit-2 and explained the contents to
them in vernacular. The respondents pleaded not guilty
and claimed to be tried. Their defence is of total
denial and false implication on account of previous
rivalry. The prosecution examined in all six witnesses
5 criapeal109-1999
including the informant and the alleged eye witnesses
namely Sitaram Govindrao Gound, Gangadhar Vithoba
Bhore. After evaluating the evidence on record, the
learned Sessions Judge held that the prosecution failed
to prove guilt of the respondents for the above
mentioned offences beyond reasonable doubt. He,
therefore, acquitted them as per the impugned judgment
and order.
7.
The learned A.P.P. submits that there is
strong evidence to establish that the respondents
assaulted the informant by means of swords (i.e.
dangerous weapons) and caused serious injuries to him.
The version of the informant has been corroborated by
the evidence of eye witness-Sitaram (PW-2) to the
extent that on hearing shouts of the informant, he went
to the spot of the incident, found the informant there
with injuries on his head and left hand and then took
the informant to Police Station, Purna. She submits
that though this witness subsequently did not support
the prosecution, the evidence of the informant who is
injured witness,cannot be discarded for want of further
corroboration by Sitaram (PW-2). According to her,
6 criapeal109-1999
there was no reason for the informant to implicate the
respondents falsely in this case. The evidence of the
informant has been supported by medical evidence and
discovery of the swords at the instance of the
respondents. According to her, the evidence produced on
record reveals beyond reasonable doubt that the
respondents attempted to commit murder of the informant
by giving sword blows on his person and particularly on
the vital part of his body i.e. the head. She submits
that the learned Sessions Judge wrongly acquitted the
respondents. She, therefore, prays that the impugned
judgment and order may be set aside and the respondents
may be convicted and sentenced for the above mentioned
offences.
8. As against this, the learned counsel for the
respondents submits that there was previous enmity
between the informant on one hand and the respondents
on the other. Therefore, independent corroboration to
the version of the informant was essential for
convicting the respondents. He submits that even the
alleged eye witness i.e. Sitaram (PW2) also does not
support the informant on the point of involvement of
7 criapeal109-1999
the incident in question. He submits that the medical
evidence shows that the injuries found on the head and
wrist of the informant are possible by sharp object.
According to him, the recovery of the swords at the
instance of the respondents has not been proved by the
prosecution. There is no reliable evidence to connect
the respondents with the incident in question.
According to him, the learned Trial Judge rightly
acquitted the respondents of the above mentioned
offences. He, therefore, prays that the appeal may be
dismissed.
9. As seen from the evidence of the informant
himself, recorded at Exh.10, there was previous dispute
between the respondents on one hand and himself on the
other, on account of an agricultural land. No doubt,
previous rivalry is a double edged weapon. It may
attribute motive to the accused and at the same time,
may lead one to hold there is false involvement of the
accused in the alleged incident of violence. Therefore,
it would be necessary to scrutinise the evidence on
record cautiously and carefully before relying on the
sole uncorroborated evidence of the informant who is in
8 criapeal109-1999
inimical terms with the respondents.
10. The informant deposes that on 26.10.1995 at
about 8.00 p.m., he started from his house situated at
village Barbadi to go to his agricultural land, Block
No.133, situate within the local limits of village
Adagaon. He reached near a tower. The respondents
obstructed him on the way. They were armed with swords.
They alleged that he had become very arrogant.
Respondent no.2 gave a sword blow on his head and
thereafter respondent no.1 inflicted two blows of sword
on his head. He states that thereafter respondent no.3
gave sword blow on his left hand. He raised shouts. On
hearing of his shouts, Sitaram (PW2) (Exh.12),
Gangadhar (PW3) (Exh.13) and one Datta came to the spot
of the incident. On seeing them, the respondents fled
away from the spot of the incident. He informed Sitaram
(PW2), Gangadhar (PW3) and Datta that the respondents
had assaulted him.
11. Sitaram (PW2) and Gangadhar (PW3) did not at
all support to the version of the informant. They did
not state that the informant had narrated the incident
to them. Therefore, their evidence is of no use to
9 criapeal109-1999
connect the respondents with the incident in question.
12. Dr.Shaikh (PW7) (Exh.36), who examined the
informant in Primary Health Centre at Purna, states
that he examined the informant on 26.10.1995 and found
the following injuries.
1. Incised wound, over head on right side on
parietal region., 2cm X 2cm X 2cm.
Oblique with regular margin.
2. Incised wound over head on left side in
occipital region., 3cm X 2cm X 1cm,
Oblique with regular margin.
3. Incised wound over left hand on lateral
aspect below elbow joint, 5cm X 2cm
X 1cm., Oblique with regular margin.
13. Dr.Shaikh (PW7) states that the above
mentioned injuries might have been caused by the hard
and sharp object, within 24 hours of his examination.
Accordingly, he issued Injury Certificate (Exh.37). He
states that the injuries found on the person of the
informant were possible by the swords Art. Nos. 4, 5
and 6 shown to him. In his cross-examination Dr. Shaikh
(PW7) admits that in Medico-Legal Cases, it is the
practice to ask history of the injuries to the
informant. However, he does not state that he asked the
10 criapeal109-1999
history of the injuries to the informant when the
informant was referred to him for medical treatment.
The Injury Certificate (Exh.37) is totally silent in
this regard. Had the history of the injuries been given
by the informant to Dr.Shaikh (PW7), it would have been
reflected in the Injury Certificate (Exh.37) and would
have lent some corroboration to his version. The
absence of the history of the injuries in the Injury
Certificate (Exh.37) and in the evidence of Dr.Shaikh
(PW7) creates doubt about the case of the prosecution.
14. Dr.Shaikh (PW7) states in his cross-
examination that if a person falls on the broken pieces
of glass, the above said injuries noted on the person
of the informant were possible. He further states that
if the assault by sharp edged stones is made, then also
such injuries are possible. Thus, he has expressed
alternate possibility of cause of injuries found on the
body of the informant. Consequently, it can be held
that the said injuries were caused by the swords only.
15. Pandurang (PW4) (Exh.15) happened to be a
panch to the spot panchanama (Exh.16). He simply proved
the fact of preparing a spot panchanama (Exh.16) and
11 criapeal109-1999
putting thumb impression thereon. He states that the
sample of blood mixed soil was seized by the police
from the spot of incident. However, he does not state
that the said sample was packed in any container and
that it was sealed on the spot itself. Anyway his
evidence is of formal nature and does not directly
incriminate the respondents.
16. The prosecution has examined Jani Khan (PW5)
(Exh.17) to prove the seizure of clothes from the
person of the informant as well as discovery of the
swords allegedly made in consequence of the statements
given by the respondents. This witness does not at all
support the prosecution. He states that he was called
by the police on 26.10.1995 to act as a panch. The
police obtained his signatures on some papers. His
evidence is of no use to connect the respondents with
the alleged offences.
17. In the absence of independent evidence to
establish that incriminating articles were seized from
the respondents or at their instance, the evidence of
P.S.I. Mule (PW6) (Exh.24), which is silent on the
points that he seized blood stained swords at the
12 criapeal109-1999
instance of the respondents, wrapped them tightly,
sealed them on the spot immediately after their seizure
and sent them to the Chemical Analyzer in the same
condition, would not be helpful to the prosecution to
establish that the swords alleged to have been seized
by this witness were used at the time of the incident.
18. P.S.I. Mule (PW6) does not state that he
seized the clothes of respondent no.1. He states that
he arrested respondent no.2 on 02.11.1995 and seized
the clothes from his person vide panchanama (Exh.23).
However, he does not state that the said clothes were
stained with blood. Therefore, seizure of the clothes
of respondent no.2 would not connect him with the
incident in question.
19. P.S.I. Mule (PW6) further deposes that he
arrested respondent no.3 on 02.11.1995 and seized his
blood stained clothes under panchanama (Exh.22).
However, this evidence is very vague and general. He
does not state about the description of the clothes
seized from the person of respondent no.3. The incident
took place on 26.10.1995. It does not appear to be
natural and probable that after committing the alleged
13 criapeal109-1999
offences, respondent no.3 would continue to wear the
same clothes until his arrest on 02.11.1995, so as to
enable P.S.I. Mule (PW6) to collect incriminating
evidence against him. Moreover, there is no whisper in
the evidence of P.S.I. Mule (PW6) that he wrapped those
clothes, sealed them and sent them to the Chemical
Analyzer in the same condition. In the circumstances,
the seizure of clothes of respondent no.3, even if
accepted, would not connect him with the incident in
question.
20. The alleged motive behind the incident does
not appear to be natural and probable. The informant
states that the respondents uttered that he had become
arrogant and started giving sword blows on his person.
When, in what manner and what arrogance was shown by
the informant is not made clear before the Court. The
informant could have made mention of certain prior
incident on the basis of which it could have been
inferred that the respondents were prompted to cause
deadly assault on the informant. There is absolutely
nothing on record to show as to why the respondents
would think of killing the informant. Thus, the very
14 criapeal109-1999
ingredient of the offence punishable under Section 307
of the I.P. Code, i.e. intention to commit murder, is
not established by the prosecution.
21. As stated above, there is sole uncorroborated
testimony of the informant to show the involvement of
the respondents in the incident in question. There was
previous rivalry between the informant on one hand and
the respondents on the other. The version of the
informant has not been corroborated even by Sitaram
(PW2) and Gangadhar (PW3), who, according to the
informant, had reached the spot of the incident
immediately after hearing his shouts. In the
circumstances, it would be risky to rely on the sole
uncorroborated testimony of the informant. The evidence
of the informant alone is not sufficient to establish
guilt of the respondents for the above mentioned
offences beyond reasonable doubt.
22. The learned Trial Judge rightly appreciated
the facts of the case and rightly held that the
prosecution failed to establish the above mentioned
offences against the respondents beyond reasonable
doubt. The learned Trial Judge rightly extended the
15 criapeal109-1999
benefit of doubt to the respondents. We find that the
view taken by the learned Trial Judge is quite possible
one and is not perverse. We find no reason to interfere
with the impugned judgment and order.
23. In the above circumstances, the appeal is
liable to be dismissed. In the result, we pass the
following order:-
ig O R D E R
The Criminal Appeal is dismissed.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
mandawgad_sa/criapeal109-1999
