Prasanjit Krishna Sahis vs The State (U.T. Of Daman And Diu)
2017 Latest Caselaw 2003 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.723 OF 2015

 PRASANJIT KRISHNA SAHIS                                  )...APPELLANT

          V/s.

 THE STATE OF MAHARASHTRA                                 )
 (U.T. OF DAMAN & DIU)                                    )...RESPONDENT

 Mr.Satyavrat Joshi, Appointed Advocate for the Appellant.

 Ms.Purnima H. Kantharia, APP for the Respondent - State.

                           CORAM  : A. M. BADAR, J.

                           DATE      : RESERVED ON      : 20th APRIL 2017
                                       PRONOUNCED ON : 26th APRIL 2017

 JUDGMENT :

1 By this appeal, the appellant / accused is challenging

the judgment and order dated 25th June 2013 passed by the

learned Sessions Judge, Daman, in Sessions Case No.10 of 2012

thereby convicting him of the offence punishable under Section

307 of the IPC and sentencing him to suffer rigorous

imprisonment for a period of 7 years apart from payment of fine

of Rs.2,000/-, in default, directions to undergo further rigorous

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imprisonment for a period of six months. The appeal was taken

up for hearing in view of the order dated 15th September 2015

passed by this court.

2 Briefly stated, facts leading to the prosecution of the

appellant / accused, according to the prosecution case, are thus :

PW1 Manu Kartikkumbar Kumbkaran is an injured

informant. Appellant / accused Prasanjit Krishna Sahis and

injured informant Manu Kumbkaran are from the same village.

Injured informant Manu Kumbkaran was working as labour

contractor at Dalwada, Nani Daman. The appellant / accused

was working with him as labourer. They both used to reside in

Room No.30 in the chawl owned by PW2 Navin Patel who was

located at Dalwada, Nani Daman.

3 On 13th January 2012, mobile phone belonging to

injured informant Manu Kumbkaran was stolen from the room.

He apprehended that it was the appellant / accused who had

stolen his mobile phone. There was hot exchange of words and

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quarrel between both of them. Then, at about 10.30 p.m. of 13 th

January 2012, injured informant Manu Kumbkaran went to bed.

The appellant / accused slept by his side. After sometime, the

appellant / accused caught hold of him and gave blow of knife on

stomach of injured informant PW1 Manu Kumbkaran. The

injured informant anyhow managed to rescue himself and came

out of the room. He locked the appellant / accused inside the

room. He was taken to Marwad hospital by PW2 Navin Patel -

landlord. The injured informant then lodged report Exhibit 6

against the appellant / accused which has resulted in registration

of the offence against the appellant / accused. After initial

medical treatment at Marwad hospital, injured PW1 Manu

Kumbkaran was then referred to Hariya Rotary hospital at Wapi

where he was treated by PW9 Dr. Suresh Sarode.

4 Pursuant to the FIR lodged by PW1 Manu Kumbkaran,

routine investigation followed. From the spot of incident, sample

of blood and blood stained bedsheet came to be seized. At the

instance of the appellant / accused, the knife came to be siezed.

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Statement of witnesses came to be recorded and on completion of

routine investigation, the appellant / accused came to be charge-

sheeted for the offence punishable under Section 307 of the IPC.

5 After committal, the appellant / accused came to be

tried before the learned Sessions Judge, Daman. In order to bring

home guilt to the appellant / accused, the prosecution has

examined in all ten witnesses. After hearing the parties, the

learned Sessions Judge, Daman, by the impugned judgment and

order dated 25th June 2013 was pleased to convict and sentence

the appellant / accused as indicated in the opening paragraph of

this judgment.

6 I have heard Shri Satyavrat Joshi, the learned advocate

appointed at the cost of the State to represent the appellant /

accused in the instant appeal. He vehemently argued that though

the appellant / accused was present in the court when the

evidence of PW1 Manu Kumbkaran was recorded on 20 th

September 2012 and 20th March 2013, PW1 Manu Kumbkaran

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was not confronted with the appellant / accused as author of the

injuries on him. The appellant / accused was not shown to the

injured witness and therefore, identity of the accused is not

established during the trial. The learned advocate further argued

that PW3 Sunil Yadav had not seen anything and he had just

heard that one of the roommates had assaulted PW1 Manu

Kumbkaran. The weapon of the offence was not shown to PW7

Dr.Sudarshan Thakor. Evidence of PW9 Dr.Suresh Sarode does not

show that the informant PW1 Manu Kumbkaran had given history

of assault by the appellant / accused. According to the learned

advocate for the appellant / accused, evidence of the panch

witness is also not reliable.

7 I have also heard Ms.Purnima Kantharia, the learned

prosecutor represent the respondent / State. She admitted that

identity of the appellant / accused as author of the crime in

question is established through evidence of PW2 Navin Patel. The

learned prosecutor further argued that evidence on record is

sufficient to convict the appellant / accused in respect of the

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offence alleged against him, and therefore, the appeal deserves to

be dismissed.

8 I have carefully considered the rival submissions and

also perused the record and proceedings including copies of

deposition of prosecution witnesses as well as the documentary

evidence placed on record.

9 Considering the nature of charge leveled against the

appellant / accused, evidence of injured PW1 Manu Kumbkaran is

of utmost importance. He being an injured witness, his testimony

carries a great weightage and as this is a case of single accused

and single victim, possibility of false implication of the appellant /

accused is too remote. Injured PW1 Manu Kumbkaran has stated

in his evidence that appellant / accused Prasanjit was residing

with him in Room No.30 of Navinbhai Chawl and on 13 th January

2012, there was quarrel between both of them on the point of

theft of his mobile phone. There were exchange of hot words

between them and thereafter, at about 10.30 p.m., he went to bed.

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Injured PW1 Manu Kumbkaran stated that the appellant / accused

slept by his side. Thereafter, the appellant / accused caught hold

of him while holding a knife and gave blow of that knife on his

stomach. As per version of PW1 Manu Kumbkaran then he came

out of the room and locked the appellant / accused inside the

room. He was then carried by PW2 Navin Patel to Marwad

hospital and thereafter he was referred to Hariya hospital. This

witness denied the suggestion that one of the labourer working

with him, with whom he had quarrel previously, had made an

assault on him, but he has falsely implicated the appellant /

accused in this case. This witness further denied the suggestion

that the appellant / accused never committed theft of mobile

phone or that he had not assaulted PW1 Manu Kumbkaran. The

FIR lodged by PW1 Manu Kumbkaran is at Exhibit 6.

10 Evidence of this witness is criticized on the ground

that he was not confronted with the appellant / accused who was

sitting in the dock at the time of recording evidence. Therefore, in

submission of the learned advocate for the appellant / accused,

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identity of the appellant / accused as the assailant is not

established.

11 PW2 Navin Patel is landlord of PW1 Manu Kumbkaran.

This PW2 Navin Patel, owner of the chawl has categorically stated

that the appellant / accused Prasanjit was residing with PW1

Manu Kumbkaran in Room No.30 of his chawl since the year

2012. PW2 Navin Patel has identified the appellant / accused as

Prasanjit. This witness has stated that he had seen PW1 Manu

Kumbkaran with a stab injury on his abdomen and therefore, he

carried PW1 Manu Kumbkaran to Marwad Hospital, Nani Daman,

by his car. Then PW1 Manu Kumbkaran was shifted to Hariya

hospital at Wapi.

12 Cumulative effect of testimony of PW1 Manu

Kumbkaran and PW2 Navin Patel is to the effect that the appellant

/ accused before the court was Prasanjit. Version of both these

witnesses if read together goes to show that the appellant /

accused before the court, namely, Prasanjit was residing with

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PW1 Manu Kumbkaran in Room No.30 of the chawl. PW1 Manu

Kumbkaran in opening portion of his chief-examination has

categorically stated that the appellant / accused is Prasanjit.

Thereafter, he has referred his assailant as the accused and stated

that the accused had given a blow of knife on his stomach.

Conjoint reading of evidence of PW1 Manu Kumbkaran and PW2

Navin Patel, as such, establishes the identity of the appellant /

accused as assailant of PW1 Manu Kumbkaran, and therefore, I

see no substance in the argument of learned advocate for the

appellant / accused that identity of the appellant / accused as an

assailant is not established by the prosecution. Infact, evidence of

PW2 Navin Patel - landlord, to the effect that the accused before

the court is Prasanjit and the accused was residing with PW1

Manu Kumbkaran in Room No.30 of the chawl, went

unchallenged, and therefore, I hold that, with congruous evidence

of PW1 Manu Kumbkaran and PW2 Navin Patel, the prosecution

has established that it was the appellant / accused who had given

blow of knife on stomach of PW1 Manu Kumbkaran.

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 13               Now let us examine whether the prosecution has made 

out commission of the offence punishable under Section 307 of

the IPC by the appellant / accused. Soon after the incident, PW1

Manu Kumbkaran was taken to a government hospital at Marwad

where PW7 Dr.Sudarshan Thakor had examined him. He noted

following injuries on person of PW1 Manu Kumbkaran :

1) There was elliptical wound over right side of his abdomen having size of 2 inch x 1 inch.

2) Penetrating wounds, two in number over left internal upper arm having size 2 inch x 1 c.m.

3) C.L.W. over on the left side of forehead

4) C.L.W. on the left side of the face near cheek having size 3 c.m. x 2 c.m.

5) C.L.W. on left side of lower lip having 1 cm. x 1 cm.

As per version of PW7 Dr.Sudarshan Thakor, injuries found on

person of PW1 Manu Kumbkaran were possible by Muddemal

Article no.3 knife. This Medical Officer stated that the injured was

then referred to Hariya hospital, Wapi. Evidence of this witness is

corroborated by contemporaneous medical certificate which is at

Exhibit 27.

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 14               At   Hariya   L.G.Rotary   hospital,   Wapi,   PW9   Dr.Suresh 

Sarode had examined PW1 Manu Kumbkaran on 14 th January

2012 i.e. from next day of the incident. Evidence of PW9

Dr.Suresh Sarode shows that upon examination of PW1 Manu

Kumbkaran, he found following injuries on his person :

1) There was elliptical wound over right side of his abdomen paramedian in position having size of 2 inch x 1 inch peritoneum penetrated ileal loop herniating from the wound with perforation of herniated ileal loop.

2) Two penetrating wounds, over left upper arm antero-medial aspect having size of 2 inch x 1 c.m. and another 3 x 2 x 1 cm at left arm middle 1/3 at anterior aspect. Sensation was decreased at left thumb and it. Extensor movement of left wrist and was decreased because of the redial nerd injury."

This witness further deposed that injury no.1 found on person of

PW1 Manu Kumbkaran was sufficient to cause his death in the

ordinary course of nature, if the same was not treated in time.

PW9 Dr.Suresh Sarode further testified that injuries found on

person of PW1 Manu Kumbkaran were possible by Muddemal

Article no.3 knife.

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 15               Despite   surging   cross-examination   of   both   Medical 

Officers by the defence, nothing could be brought on record to

disbelieve their version regarding injuries suffered by the victim in

the incident in question. PW1 Manu Kumbkaran had suffered

elliptical wound over right side of his abdomen and the weapon of

the offence was knife. Apart from this injury, he had suffered two

penetrating wounds over his left arm. It is, thus, seen that, after

first injury to the abdomen of PW1 Manu Kumbkaran, the

appellant / accused had subsequently caused two more injuries to

him by means of blows of knife. Successive blows given by the

appellant / accused, weapon chosen for carrying out the assault

and parts of body of PW1 Manu Kumbkaran selected for giving

blows reflects intention of the appellant / accused to commit his

murder. Muddemal Article no.3 knife is proved to have been

seized at the instance of the appellant / accused and for this

purpose, evidence of PW8 Vinod Varma - a panch witness and

PW10 Manoj Patel P.S.I. is totally trustworthy and acceptable. The

memorandum statement and resultant recovery panchnama of the

knife at the instance of the appellant / accused are at Exhibits 30

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and 31. Both Medical Officers unanimously stated that wounds

found on person of appellant / accused were possible by the knife

which was seized at the instance of the appellant / accused.

16 In view of foregoing reasons, I see no infirmity in the

impugned judgment and order of the learned Sessions Judge,

Daman, in convicting and sentencing the appellant / accused of

the offence punishable under Section 307 of the IPC. As such, the

following order :

The Appeal is dismissed.

                                            (A. M. BADAR, J.)




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