Shriram S/O Kisan Khobragade And ... vs State Of Maharashtra
2017 Latest Caselaw 5350 Bom

 apeal 4.03                                      1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                     CRIMINAL   APPEAL NO. 4 OF 2003

 1.             Shriram S/o Kisan Khobragade,
                Aged about 24 years,

 2.             Tulsiram S/o Kisan Khobragade,
                Aged about 25 years,

                Both Agriculturists,
                R/o Shivnala,Tahsil-Pauni,
                District-Bhandara                             ..... APPELLANTS

                    ...V E R S U S...

  State of Maharashtra,
 Through Police Station Officer,
 Police Station Pauni,
 District-Bhandara                                           ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri Abhay Sambre, Advocate for appellants.
 Shri R.S.Nayak,A.P.P. for State-respondent. 
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :-AUGUST 1,2017

ORAL JUDGMENT

The present appeal is directed against the judgment

and order of conviction passed by learned Additional Sessions

Judge,Bhandara dated 10/12/2002 in S.T.No.104/2000.

2] By the impugned judgment and order of conviction the

appellants are convicted for the offence punishable under Section

326 r/w Section 34 of the Indian Penal Code and they are directed

to suffer R.I. for two years and to pay fine of Rs. 200/- and in

default of payment of fine amount further to suffer R.I. for 15

days.

3] The appellants were charged for the offence punishable

under Section 307 r/w Section 34 of the Indian Penal Code by

learned Additional Sessions Judge,Bhandara. According to charge,

on 24/4/2000 , between 8.00 to 8.30 a.m. at village Shivnala, the

appellants in furtherance of their common intention assaulted on

Sakharam S/o Fuktu Dhengre(PW2)by means of axe and stick

causing injuries with an intention to commit his murder.

4] In order to prove the charge, the prosecution has

examined in all 8 witnesses and also relied upon various

documents. The learned Court below, however acquitted the

appellants for the offence punishable under Section 307 r/w

Section 34 of the Indian Penal Code but convicted and sentenced

the appellants for the offence punishable under Section 326 r/w

Section 34 of the Indian Penal Code.

5] I have heard Shri Abhay Sambre,learned counsel for

appellants and Shri R.S.Nayak, learned A.P.P. for State-

respondent in extenso. With their able assistance I have gone

through the evidence of prosecution witnesses and materials

brought on record during the course of trial.

6] According to learned counsel Shri Abhay Sambre for

appellants the conviction of the appellants cannot sustain in view

of the fact that:

(i) The Court below itself discarded evidence of Tukaram Fuktu Dhengre(PW1) and Anandrao Mangru Dhengre(PW3).

(ii) The prosecution has not seized or produced the weapon axe.

(iii) The C.A.report is not in conformity with the prosecution case.

7] He also submitted that in view of the fact as brought on

record through the cross-examination of injured Sakharam (PW2)

that there is enmity in between Sakharam and accused persons,

false implication at his behest is not completely ruled out.

Therefore, he prayed that the appeal be allowed.

8] Per contra, learned A.P.P.Shri R.S.Nayak would submit

that there is no reason to disbelieve the version given by

Sakharam(PW2) injured on oath from the witness box. He also

submitted that in view of the injury certificate (Exh.30) it is clear

that the injured has lost his left eye permanently in the assault. He

therefore, submits that appeal be dismissed.

9] The F.I.R. (Exh.13)is lodged by complainant Tukaram

Fuktu Dhengre. He is the brother of injured Sakharam(PW2). The

oral report is at Exh.12. Though the learned Court below has

found in paragraph no.22 of the judgment that this witness cannot

be termed as an eye witness,but it is crystal clear that F.I.R.

(Exh.13) was lodged immediately. On the basis of oral

report(Exh.12) offence was registered against the appellants vide

Crime No.47/2000 with P.S.Paoni, for the offence punishable

under Section 307 r/w Section 34 of the Indian Penal Code.

10] P.I.Baba Bhagwanji Dongre(PW8) has investigated the

Crime No.47/2000. He visited the spot of occurrence and has

prepared spot panchnama(Exh.20) in presence of Shridhar

Haribhau Sawarbandhe(PW5). Spot panchnama(Exh.20) a

contemporaneous document also recites that when the spot of

occurrence was examined by P.I.Dongre(PW8) in presence of

panchas he noticed laying of bicycle on the spot. This particular

recitals in the spot panchnama(Exh.20) corroborates Sakharam

(PW2) as that when he was returning to his house that time he

was holding his bicycle in his hand since it was punctured. In fact,

this particular aspect is brought on record during the course of

cross-examination. The injured was taken to the Rural Hospital at

Paoni. Dr.Kalpita Narayanrao Bhandarkar(PW7) was medical

officer there. She received requisition from P.S.O.Paoni as to

whether Sakharam (PW2) injured is in a position to give his

statement. On examination Dr.Kalpita(PW7) gave opinion

(Exh.29) that injured is in semi conscious state and therefore he is

not fit to give statement.

11] Dr.Kalpita(PW7) has examined injured Sakharam

(PW2) and has proved the injury certificate (Exh.30). Following

six injuries were noticed by Dr.Kalpita(PW7). Those are as under:

(I) Incised wound on the left upper eyelid, size 2 cm. Under-line haematoma.

                (ii)           Complete evolution of  left eye ball.

                (iii)          Two incised wounds on Lt.Cheek, extending







                               deep upto the bone,size 2 c.m. in length 
                               with active bleeding.
                (iv)           5 cm. Contusion  lacerated wound on right 
                               side of forehead extending upto skull, no 
                               underline fracture.
                (v)            Lacerated wound on left occipital temporal 
                               region of 7 cm.size extending upto skull, 
                               with no underline fracture.
                (vi)           Contusion on right leg and left thigh , 
                               swelling present.

                               All wounds were found sutured. 

From the nature of the injuries, it is clear that apart from the other

incised wounds and contusions Sakharam(PW2) lost his eye sight

of left eye permanently. Thus, Sakharam suffered grievous injury

as established by the prosecution.

12] According to appellants, independent witnesses are not

examined. In this context, firstly the Court will require to

scrutinise the evidence of injured. The fate of the prosecution is

not decided by the quantity of the evidence that is brought on

record. It is always decided on the basis of qualitative evidence

which is produced by the prosecution during the course of trial.

Therefore, non-examination of independent witnesses though

available as argued by the learned counsel for appellants cannot

be the reason to discard the prosecution case. In the present case,

the Court has to evaluate the evidence of Sakharam(PW2) and if

the evidence of Sakharam(PW2) inspires confidence and found to

be trustworthy version then, conviction can be safely awarded and

can be upheld by this Court.

13] The evidence of Sakharam(PW2) shows that the

incident occurred on 24/4/2000 at about 8.30 a.m. That time he

was returning to his house from his agricultural filed. On a way,

accused no.2 accosted him near the house of one Ramesh

Deshmukh. At the time of accosting, Sakharam(PW2) was

challenged that his father practices sorcery on his wife and

thereafter he assaulted on his head by means of axe. That time,

accused no.1 who was present there and was armed with

stick(ubhari) assaulted on his chest, head and other parts of the

body. As per his evidence he became unconscious and he regained

consciousness only at Govt.Medical College,Nagpur.

The cross-examination of this injured(PW2) shows that

in fact there is no challenge on the part of the appellants in

respect of the actual assault made by each of the accused. By

cross-examination it is tried to be brought on record about

pendency of civil suit and that parties are at cross term,and

therefore, the appellants are falsely implicated. Enmity is a

double edged weapon. Further, nothing is available on record

even during the cross-examination of any of the prosecution

witness to show that rivalry was so bitter that there is a every

possibility of Sakharam falsely implicating the appellants.

14] In the evidence itself Sakharam(PW2) says that

according to appellant no.2 Shalikram's father practices black

magic and thereafter, he was assaulted. Even this aspect is also

not under challenge by the defence when Sakharam was cross-

examined. On the contrary, it is brought on record that original

accused no.2-appellant no.2 uttered only one sentence that his

father practices sorcery on his wife.

15] The evidence of Sakharam(PW2) , the injured is free

from omissions and contradictions. His evidence is also supported

by the medical evidence. The nature of the injuries as mentioned

in injury certificate(Exh.30) as per the evidence of

Dr.Kalpita(PW7) corroborates that he was assaulted by means of

sharp weapon and blunt object. Therefore, merely because the axe

is not seized by the investigating officer that is not sufficient to

discard the evidence of Sakharam(PW2)which is found otherwise

to be truthful. The injuries show that he was assaulted by means

of sharp weapon. In that behalf it would be useful to refer

paragraph no.12 of the decision of Hon'ble Apex Court reported in

Tama @ Tamal Mal..vs..State of West Bengal, AIR 2008 SC 12.

" 12.When the testimonies of two eye witnesses had been believed by the learned Trial Judge as also by the High Court and in view of the fact that we did not see any reason to differ with the findings of the two Courts, in our opinion, the fact whether the blood stains collected from the place of occurrence by the Investigating Officer had been sent to the Forensic Expert for chemical examination or not, pales into insignificance. We are furthermore of the opinion that whether the knife was recovered or not is also not of much importance."

In the said case also the Hon'ble Apex Court noticed that when the

version of the eye witness found to be truthful whether the knife

was recovered or not is of not much importance.

16] Once, it is found that the evidence of Sakharam(PW2),

the injured is free from all doubts, embellishment and when it

inspires confidence in the mind of the Court, the sole testimony of

the injured can be basis for conviction. Resultantly, I dismissed the

appeal.

                               ORDER

 I)             The appeal is dismissed.

 II)            The judgment and order passed by  learned Additional 

Sessions Judge,Bhandara dated 10/12/2002 in S.T.No.104/2000 is hereby confirmed.

III) The appellants who are on bail shall surrender to their bail bonds within a period of four weeks,else the learned Court below to take step to secure the presence of the appellants for serving out remaining sentence.

IV) At this stage, learned counsel Shri Abhay Sambre for the appellants submitted that four weeks time be granted to the appellants to surrender their bail bonds. The appellants were released by this Court on bail on 22/2/2003. In that view of the matter, the prayer of learned counsel for the appellants is accepted. The appellants are granted four weeks time to surrender their bail bonds failing which the Court below to issue non bailable warrants against the appellants to secure their presence for serving out remaining sentence.

JUDGE

Kitey