Gopal Bapuraoji Walve vs The State Of Maharashtra,Thr.Pso ...
2017 Latest Caselaw 5766 Bom

                                      1                                         apeal209.00




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.209/2000


 Gopal Bapuraoji Walve, 
 Aged 32 years, Labourer, 
 R/o Samadhan Nagar, Irwain 
 Chowk, Police Station City Kotwali,
 At Amravati, Tq. and Dist. Amravati.                  ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through P.S.O., Police Station City
 Kotwali, Amravati.
                                                       ....       RESPONDENT

 ______________________________________________________________

              Shri J.B. Kasat, Advocate for the appellant, 
            Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 8 AUGUST, 2017.

th

ORAL JUDGMENT :

This appeal seeks to assail the judgment and order dated

13-06-2000 delivered by the Additional Sessions Judge, Amravati in

Sessions Trial 264/1994, by and under which the appellant was

convicted for offences punishable under Sections 148 and 326/149 of

2 apeal209.00

the Indian Penal Code and sentenced to suffer rigorous imprisonment

for six months and rigorous imprisonment for one year for the offences

punishable under Sections 148 and 326/149 of the Indian Penal Code

respectively.

2. The appellant and four others faced the trial for the

aforestated offences. The appellant was arrayed as accused 2 and has

been convicted alongwith Madan Sahu Walve and Ramesh Babulal

Sahu who were arrayed as accused 1 and accused 5. Accused 1 and 5

have not challenged the order of conviction.

3. The prosecution case, shorn of unnecessary details, is that

when the victim Deepak Gupta and his friends Mangesh Ajmire, Vivek

Mishra, Kanti Choudhari, Ambarish Khandelwal, Neeraj Deshmukh and

Akhil Varma were socially interacting near the building of Sahkar

Bhavan, Central Bank of India, Amravati on 16-08-1993, the accused

alongwith two brothers of accused 4 arrived in an auto-rickshaw at

about 9.00 p.m. Accused 1 was armed with a sword, accused 2 was

armed with iron pipe, accused 5 was armed with a barber razor and

accused 4 was wielding a hockey stick. According to the prosecution

case, accused 1 inflicted a sword blow on the head of Deepak Gupta

3 apeal209.00

and accused 5 attacked him with barber razor. Accused 2 allegedly

delivered a blow by iron pipe on the legs of Deepak Gupta while

accused 4 assaulted him with a hockey stick.

4. The prosecution contends that the injured victim went to

City Kotwali Police Station and was admitted in General Hospital,

Amravati. He was treated by one Dr. Bhonde attached to General

Hospital, Amravati. The wounds noticed by the treating doctor were

lacerated wound of size 4" x ¼ " bone deep on parietal region, a

lacerated wound on the frontal region and a lacerated wound on

occipital region. Two incise wounds were noticed on the left leg and

left knee joint alongwith abrasion with contusion on the upper 1/3rd

region of the left leg and an abrasion 1" x 1" on the right elbow. One

P.S.I. Mahajan who was then attached to Police Station City Kotwali

visited the hospital and recorded the complaint lodged by Deepak

Gupta. On the basis of the said complaint, offence came to be

registered against the accused persons, a spot panchanama was drawn

and statements of witnesses who were allegedly present at the time of

the incident alongwith the complainant, were recorded.

5. The prosecution case is that after the accused were

4 apeal209.00

arrested on 19-08-1993, accused 1 to 4 jointly discovered the weapons

which were allegedly hidden in debris of waste material from the

premises of Walcut Compound, Amravati. Investigation culminated

into charge-sheet filed in the court of Chief Judicial Magistrate,

Amravati who committed all the accused to the court of Sessions for

trial.

6. The learned Sessions Judge framed charge for the offences

punishable under Sections 147, 148, 307 read with Section 149 of the

Indian Penal Code and Section 4/25 of the Arms Act vide Exhibit 19.

The appellant pleaded not guilty vide his plea Exhibit 21.

7. The prosecution examined six witnesses to bring home the

charge. P.W.1 Deepak Gupta is the injured victim. P.W.2 Kantikumar

Choudhari and P.W.4 Vivek Mishra were examined as eyewitnesses to

the assault. P.W.3 Ashok Mehara is panch to the discovery of the

weapon from the accused 1, 2 and 4. P.W.3 has not supported the

prosecution and was declared hostile and cross-examined. P.W.5 is Dr.

Shriram Bhonde and P.W.6 is the Investigating Officer PSI Mahajan.

8. The defence of the accused 1 to 5 is of total denial and

5 apeal209.00

false implication. The defence is that Deepak Gupta, the complainant

is a notorious criminal who is facing number of prosecutions and has

falsely implicated the accused as a counter-blast to a complaint of

assault lodged by accused 2 against the complainant.

9. Shri J.B. Kasat, learned Counsel for the appellant

vehemently attacked the judgment impugned contending that the

evidence on record is grossly insufficient to return a finding of guilt.

He further contended that the oral testimony of the complainant is

falsified by the medical evidence. Before I record my finding on the

aforesaid submissions, a scrutiny and consideration of the evidence on

record would be in order.

10. The oral report, which is treated as the first information

report of the complainant recorded on 16-08-1993 reveals that he

named the accused 1, accused 2, accused 3 and accused 4 and his two

brothers and accused 5 as the perpetrators of the assault. Accused 3 is

referred to as Kallu, accused 4 is referred to as Allu. The first

information report narrates that on 14-08-1993 a quarrel took place

between the accused and the complainant and the assault was a fall

out of the altercation. However, during cross-examination, P.W.1

6 apeal209.00

complainant states that before the incident there was no dialogue

between P.W.1 and accused and that he was knowing the accused by

face and name. P.W.1 complainant categorically stated in the cross-

examination that there was no interaction between him and the

accused prior to the incident. He further states in the cross-

examination that he was attacked from behind and after sustaining the

blow on the head by the sword, he fell down sideways (facing to one

side). Certain omissions have been brought on record, some of them

are minor and would not partake the character of contradiction.

However, in response to a question in the cross-examination, P.W.1

says that the attackers did not include Allu, Kallu and their two

brothers. In the light of the said assertion, the learned Sessions Judge

was pleased to acquit accused 3 and 4. P.W.1 further admits that he

was facing three to four criminal prosecutions including prosecution

for the offence of murder. He admits that a prosecution was initiated

against him for attacking accused 2 with a sword but the admission is

with a rider that the registration of the offence is not prior to the

incident. P.W.2 Kantikumar Choudhari who was examined as a

witness to the incident does not take the case of the prosecution any

further and his testimony is limited to assering that five to six persons

appeared on the spot and attacked P.W.1 with sword, pipe and hockey

7 apeal209.00

stick. P.W.3 Ashok Mehara was examined as panch to the discovery

memo and the recovery and seizure of the weapons. P.W.3 did not

support the prosecution, was declared hostile and cross-examined

which has not brought on record any material to bolster the

prosecution case. P.W.4 Vivek Mishra is examined as an eyewitness to

the incident. He states in the examination-in-chief that in the year

1993 at about 9-00 p.m. four to five persons alighted from an auto-

rickshaw and assaulted P.W.1 by means of knife. P.W.4 specifically

names the appellant as one of the persons who assaulted P.W.1 with

knife. This witness is subjected to an extensive cross-examination. I

need not delve on the cross-examination in any detail since testimony

of both P.W.2 and P.W.4 has been kept out of the consideration by the

learned Sessions Judge. The learned Sessions Judge has ignored the

testimony of P.W.2 since the said witness did not identify any of the

accused as the perpetrator of the assault. The testimony of P.W.4 is

held to be unreliable and unbelievable since it was not the case of the

prosecution that knife was used during the assault.

11. P.W.5 Dr. Shriram Bhonde has proved the injury

certificate (Exh.59). P.W.5 has deposed that out of the seven injuries,

only injury (i) is serious in nature and the said injury which is a

8 apeal209.00

lacerated wound size 4" x 1" bone deep on parietal region could be

caused by fall on hard and rough substance. He admits that the said

injury can also be caused if concerned person is hit by stone. The

injury (i) is alleged to have been caused by the sword blow delivered

by the appellant and it would be important to note that the opinion of

P.W.5 expressed in the examination-in-chief is that the said injury is

caused by hard and blunt object. The last witness P.W.6 P.S.I.

Mahajan is the Investigating Officer.

12. The learned Sessions Judge was pleased to acquit accused

3 and 4 in view of the testimony of P.W.1 who categorically stated that

the said accused were not participants in the assault. Testimonies of

P.W.2 and P.W.4 are held to be of no assistance to the prosecution for

reasons spelt out supra. The learned Sessions Judge also did not attach

any importance to the alleged discovery holding that the panch witness

to the discovery and seizure (P.W.3) did not support the prosecution

and further that joint and simultaneous discovery by four accused is

unbelievable and unsafe to be relied upon. The learned Sessions

Judge, however, recorded a finding of guilt qua accused 1, 2 and 5

relying on the testimony of P.W.1 which according to the learned

Sessions Judge is corroborated by the medical evidence.

9 apeal209.00

13. I have given anxious consideration to the testimony of

P.W.1 and the medical evidence on record. I find it difficult to hold

that the testimony of P.W.1 is believable or reliable. P.W.1 admits that

he is facing four criminal prosecutions including prosecution for

murder and is certainly not a peace loving and cautious citizen. The

first information report narrates that there was a quarrel between

P.W.1 and the accused and that the alleged assault was a fall out of the

said altercation. However, while deposing before the Court P.W.1

asserts that there was absolutely no interaction between him and the

accused prior to the incident and that he only knew the accused by

name and face. The attempt is clearly to preempt an accusation of

false implication due to existing rivalry. Accused 3 and 4 who were

named in the first information report were granted a clean chit by

P.W.1, which conduct is suspicious and at any rate is a conduct which

shakes the credibility of the complainant. P.W.1 claims to have been

assaulted from behind. His assertion that the appellant delivered the

sword blow on his head is not supported by the medical evidence. A

submission was made during the course of trial that since injury (i) is a

lacerated wound, the same could not have been caused by a sword

blow. It was urged that in the absence of an incise wound the

assertion that the appellant delivered a sword blow on the head is not

10 apeal209.00

free from doubt. This submission is brushed aside by the learned

Sessions Court holding that the injuries on the skull were bone deep

and are infact incise wounds. The difference between a lacerated

wound and incise wound and the implication of the difference is too

deeply entrenched in medical jurisprudence. This is not to suggest

that a lacerated wound can never be caused by a sword blow. A thick

edged and blunt sword may indeed cause lacerated wound. However,

there is absolutely no evidence on record to suggest that the sword

allegedly used to deliver the blow on the head was of such nature. The

testimony of P.W.1 is not corroborated by the other two witnesses

P.W.2 and P.W.4 who allegedly witnessed of assault. Several other

persons, claimed as friends by P.W.1, allegedly present at the spot,

have not been examined. It is true that there is a sanctity attached to

the testimony of an injured witness and ordinarily no corroboration

may be required for the Court to accept such testimony if the injured

witness is otherwise found to be credible and reliable. The fact that

the witness suffered injury/injuries lends an assurance that he was

indeed present on the spot at the time of incident. However, there is

no inflexible or immutable rule of evidence that the testimony of an

injured witness must be necessarily relied upon. I am of the opinion,

that there are sufficient and compelling reasons to hold that the false

11 apeal209.00

implication of the appellant/accused cannot be ruled out with any

degree of certainty. I am, therefore, inclined to hold that in the

absence of corroborative evidence, it would be unsafe to convict the

appellant, on the basis of the testimony of P.W.1.

14. In the light of the discussion and findings recorded supra,

I would allow the appeal. The judgment and order passed by the

learned Additional Sessions Judge, Amravati in Sessions Trial

No.264/1994 on 13-6-2000 is set aside. The appellant is acquitted of

the offences punishable under Sections 148 and 326/149 of the Indian

Penal Code. His bail bond shall stand cancelled. Fine, if any, paid by

the appellant shall be refunded to him.

The appeal accordingly stands disposed of.

JUDGE adgokar