The State Of Maharashtra vs Vijay Kantrao Ramthirthkar And ...
2017 Latest Caselaw 9288 Bom

                                                          Cri.Appeal No.27/2002
                                       1

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      BENCH AT AURANGABAD

                         CRIMINAL APPEAL NO. 27 OF 2002

The State of Maharashtra,
through Police Station, Hadgaon,
Taluka Hadgaon, District Nanded                                ..Appellant

        Versus

1.      Vijay s/o Kantrao Ramthirthkar,
        Age 21 years, Occu. Education,
        R/o Ward No.14, Hadgaon,
        Taluka Hadgaon, Dist. Nanded

2.      Sambhaji s/o Devji Chanchalwad,
        Age 27 years, Occu. Service,
        R/o Ramnagar, Kinwat,
        Taluka Kinwat, District Nanded                         ..Respondents

Mr S.D. Ghayal, A.P.P. for appellant
Mrs A.N. Ansari, Advocate for respondent no.1
Mr A.R. Nikam, Advocate for respondent no.2


                                      CORAM : T.V. NALAWADE AND
                                              A.M. DHAVALE, JJ

                                      DATE OF RESERVING
                                      THE JUDGMENT : 07.11.2017

                                      DATE OF PRONOUNCING
                                      THE JUDGMENT : 05.12.2017

JUDGMENT (Per A.M. Dhavale, J.)

1. This is an appeal by the State against the judgment of acquittal

of two accused for offences punishable under Sections 307, 506 read

with Sec.34 of Indian Penal Code by III Assistant Sessions Judge,

Nanded in Sessions Case No.165/1998 dated 25.9.2001.

2. Brief facts relevant for deciding this appeal may be stated as

follows:

Cri.Appeal No.27/2002

P.W.1 Vijay Bharti, aged 45 years is the informant and victim.

On 5.12.1997 he submitted a written F.I.R. Exh.22 to the effect that on

that day at 9.00 a.m., while he was returning from Maruti temple to

his house and was talking with P.W.7 Deelip Yenum near public tap in

Ward No.15 at Hadgaon, accused no.1 Vijay Bharti and his accomplice

Sambhaji Chanchalwade came running towards him. Accused no.1

Vijay inflicted a blow of knife on his abdomen. As P.W.1 Vijay moved

backwards, he sustained injury near his left rib. Thereupon, accused

no.1 Vijay inflicted second blow towards his neck, but P.W.1 Vijay put

his left hand in between. P.W.1 Vijay sustained injury to his left arm

and cheek. He raised shouts and then Deepak Chandel and P.W.1

Vijay's brothers Dhananjay and Ravi rushed to the spot. Thereafter,

both the accused ran away. While leaving, the spot accused no.1

Vijay threatened to kill him by his revolver. P.W.1 Vijay sought

protection from Police as accused no.1 Vijay had tried to kill him.

3. On the basis of F.I.R., crime was registered at C.R.No.251/1997

at 10.30 a.m. under Sections 307, 506 read with Sec.34 of Indian

Penal Code. It was investigated into. Spot panchnama was drawn

and blood stained shirt and one baniyan of P.W.1 Vijay were seized.

Statements of material witnesses were recorded. The accused were

arrested and on the basis of his voluntary statement, a knife was

recovered from his house. After collecting medical evidence, the

charge-sheet was submitted in the Court of Judicial Magistrate,

Hadgaon.

Cri.Appeal No.27/2002

4. In due course, the case was committed to the Court of Sessions.

The charge was framed against the accused under Section 307, 506

read with Sec.34 of Indian Penal Code. They pleaded not guilty. The

prosecution examined eight witnesses. Defence of the accused is of

total denial. Accused no.1 Vijay claimed that he had land dispute with

P.W.1 Vijay, P.W.6 Deepak and P.W.7 Deelip are his friends and,

therefore, he was falsely implicated. He was at the relevant time in

Nanded. Accused no.2 Sambhaji took a simple defence of total denial.

The learned trial Judge (III Assistant Sessions Judge, Nanded) did not

accept the prosecution evidence and, therefore, the accused were

acquitted. Hence this appeal.

5. Learned A.P.P. Mr S.D. Ghayal has taken us through the

evidence on record. He stated that the F.I.R. is promptly recorded,

the evidence of injured witness Vijay is consistent and is well

supported by medical evidence, there is also evidence of eye witness

P.W.6 Deepak Chandel and P.W.7 Deelip. There is discovery of knife

by the accused and the doctor opined that the injuries suffered by

P.W.1 Vijay were possible by knife blows. Hence, the accused deserve

to be convicted under Sections 307, 506 read with Sec.34 of Indian

Penal Code.

6. Per contra, learned Counsel Mrs Ansari argued that the evidence

of prosecution is full of discrepancies. There are several suspicious

circumstances, which remained unexplained and, therefore, the

judgment of acquittal does not deserve any interference. He pointed

out that the F.I.R. is typed one and the typewriter was brought by

Cri.Appeal No.27/2002

Clerk of P.W.1 Vijay's uncle, who is Advocate. He pointed out that

injury No.4 contusion on abdomen is not properly explained. The

Baniyan of P.W.1 Vijay was not torn nor there were blood stains on it.

No role has been assigned to accused no.2 Sambhaji, who was

unknown to P.W.1 Vijay. There was admittedly land dispute between

accused no.1 Vijay and P.W.1 Vijay, but it was compromised. No

blood was found on the spot. The knife is not recovered by accused

no.1 Vijay but by his mother. Accused no.1 Vijay is having no

revolver. The injuries are only of size of 0.5 cm. Width. There is no

evidence whatsoever against accused no.2 Sambhaji. There are

material discrepancies in the evidence of eye witnesses with regard to

their presence and about time of arrival. In the alternative, he

submitted that accused no.1 Vijay was in jail for eight days and

incident had taken place about 20 years back. The injury is not

grievous. Therefore, accused no.2 Sambhaji be acquitted and

accused no.1 Vijay be convicted under Section 324 of Indian Penal

Code.

7. The points for our consideration with our findings are as follows:

(1)     Whether accused nos.1 and 2 in         .. Offence u/s 324 of IPC
        furtherance of their common              proved against accused
        intention attempted to commit            no.1.
        murder of P.W.1 Vijay ?


(2)     Whether accused nos.1 and 2 in
        furtherance of their common
        intention criminally intimidated       .. In the negative
        P.W.1 Vijay with threats of killing?





                                                           Cri.Appeal No.27/2002




(3)     What order ?                           .. The appeal is partly
                                                 allowed




                                 - REASONS -

8. The prosecution has examined eight witnesses as follows:

Main witnesses :

(I)     P.W.1 - Vijay injured witness and informant (F.I.R. Exh.22)
(II)    P.W.7 - Deelip - eye witness
(III)   P.W.6 Deepak Chandel - eye witness


        Medical Evidence



(I)     Medical Officer P.W.5 Dr. Lomte - three incised wounds and

        one contusion (Certificate Exh.36)

        Panchas


(I)     P.W.2 - Ramrao Deshmukh - spot panchnama (Panch Exh.24)

        (No blood on the spot)



(II)    P.W.3 Datta - seizure of blood stained shirt and Sando baniyan

of P.W.1 Vijay (Exh.26), Shirt and baniyan (Articles 2 and 3)

No blood on baniyan and

Memorandum and seizure of knife from the house by

accused no.1 Vijay (Exhs.28 and 29)

Cri.Appeal No.27/2002

(IV) P.W.8 P.S.I. Bharat Paradke, Investigating Officer. He deposed

about recording of F.I.R. (Exh.22).

(V)     Drawing spot panchnama - Exh.24

(VI)    Map of the spot Exh.41

(VII) Seizure of shirt and baniyan of the informant Exh.26

(Articles 2 and 3)

(VIII) Discovery of knife by accused No.1 Vijay (Exhs.28 and 29)

9. P.W.1 Vijay is the injured witness. As per his evidence, he had

land disputes with the accused and their family. They were not on

talking terms with each other for about two years. On 5.12.1997, at

9.00 a.m., P.W.1 Vijay had gone to the temple of Lord Maruti and while

returning, he was talking to Deelip Yenum P.W.7 near a water tap

situated near the house of accused no.1. At that time, accused no.1

Vijay suddenly came running and inflicted a blow of knife on his

abdomen. When he tried to avoid it, he received injury on left rib.

Then accused no.1 gave second blow towards the neck of P.W.1 Vijay.

P.W.1 Vijay raised arm to ward off the blow on the neck. He thereby

sustained a blow of knife on his left hand and cheek and sustained

bleeding injuries. He raised shouts. His brothers Dhananjay and Ravi

and friend P.W.6 Deepak Chandel came to his rescue. That time

accused no.2 Sambhaji was also with accused no.1 Vijay. Accused

no.1 Vijay gave threats of killing by revolver and both the accused ran

away. He deposed that father of accused no.1 Vijay was possessing

revolver. He also stated that while sustaining the knife blows, he

sustained internal injury by the handle of the knife on his abdomen.

He was immediately taken to police station and P.S.I. present there

Cri.Appeal No.27/2002

sent him to the hospital first for medical treatment. The hospital is

nearby the police station. At the same time, P.W.1 Vijay's uncle came

there along with his Clerk and a portable typewriter. Report of P.W.1

Vijay was typed on the typewriter and the typed report Exh.22 was

given to the police, which is treated as F.I.R. Later on, his shirt and

baniyan were seized. He identified them (Articles no.2 and 3). He

also identified Court Article no1 knife used for assault. The F.I.R.

Exh.22 bears the endorsement that station diary entry was recorded

on the basis of the same at 10.30 p.m. Crime was registered at

C.R.No.251/1997 for offences punishable under Sections 307, 506

read with Sec.34 of Indian Penal Code.

10. The evidence of P.W.5 Dr. Lomte shows that P.W.1 Vijay was

referred to him by Hadgaon police and he examined him at 9.45 a.m.

He noticed following injuries on his person :

1) Sharp edged injury on left cheek, 1.5 cm x 0.5 cm

2) Sharp edged injury on left iliac region of abdomen 4 cm x 0.5

cm

3) Sharp edged injury on left forearm at lower 1/3rd, 1 cm x 0.5 cm

All injuries were freshly bleeding, caused within six hours by

sharp edged object and were simple in nature.

4) Fourth injury is contusion on lipigastric region of abdomen 3 cm

x 3 cm reddish coloured, caused within six hours by hard and blunt

object, simple in nature. Patient was admitted in Rural Hospital,

Cri.Appeal No.27/2002

Hadgaon on 5.12.1997 and was referred to Civil Hospital, Nanded on

the next day, as he was complaining pains in abdomen. He has

accordingly issued injury certificate Exh.33. His reference letter is at

Exh.36. The X-ray plates were seen by the doctor and he found that

there was no internal injury. X-ray plates are at Exh.37. Injury no.4 is

described as fatal (?) Injury nos.1 to 3 are possible by muddemal

knife Article no.1. Injury no.4 was possible by handle of the knife.

11. The incident has taken place at 9.00 to 9.30 a.m. in broad day

light, where there was no issue of sufficiency of light for identification

of the assailants. Since there are four injuries, there was sufficient

time with the injured to see as to who was the assailant.

12. In cross-examination of the Doctor, it is brought on record that

the injuries were having sharp edges and it was suggested that those

could be caused by any weapon having sharp edges on both the sides

and not by only knife which is having sharp edge on one side. The

Medical Officer categorically opined that injury nos.1 to 3 were

possible by knife. It is pertinent to note that injury nos.1 to 3 are

sharp injuries, but those are not stab wounds. Only in case of stab

wound one can expect use of weapon having edges on both the sides

if the injuries are having clear cut margins on both the sides.

13. Thus, the evidence of P.W.1 Vijay and the Medical Officer shows

that his evidence is consistent with F.I.R. Exh.22 which was promptly

lodged within one hour. Considering the priority given to medical

treatment, there is absolutely no delay in lodging the F.I.R. The

Cri.Appeal No.27/2002

injuries are consistent with the evidence led by P.W.1 Vijay with

regard to the nature of assault.

14. When any injured person deposes on oath, his evidence stands

on higher pedestal than other witnesses. When his evidence is cogent

and consistent with his F.I.R. and the F.I.R. is lodged promptly and the

medical evidence corroborates his evidence, normally the evidence of

such witness should be believed and the Court should find out

whether there are special reasons, which can throw a cloud of

reasonable doubt on his evidence. If there are such circumstances,

then only his evidence can be disbelieved.

15. P.W.6 Deepak and P.W.7 Deelip are the eye witnesses.

16. P.W.6 Deepak has deposed that on 5.12.1997 at 9.00 a.m. after

returning from Maruti temple, he was standing at Sonole chowk. Then

P.W.1 Vijay came there and both were chitchatting. P.W.7 Deelip

joined them. They were near the public water tank near the road. He

deposed that at that time accused no.1 Vijay came from the side of

his house and gave two blows of knife on his person. One blow hit on

left rib. Another on his left cheek and left hand. P.W.1 Vijay sustained

injuries. He shouted loudly. P.W.6 Deepak stated that he, Dhananjay

and Ravi rushed to the spot of incident. He deposed that accused no.1

Vijay gave threat to the complainant (P.W.1 Vijay) that he would see

him later. Accused no.1 Vijay ran away on motorcycle. Accused no.2

was sitting on the bike. The assault took place on account of land

dispute. He also identified the knife Article No.1 and shirt Article no.2.

Cri.Appeal No.27/2002

17. Evidence of P.W.6 Deepak is somewhat different. According to

P.W.1 Vijay, he came to the spot after hearing his shouts. P.W.6

Deepak has also stated so. Then his earlier evidence that he was

chitchatting with P.W.1 Vijay and P.W.7 Deelip is inconsistent. The

threat allegedly given by accused no.1 Vijay to P.W.1 Vijay is also

different.

18. P.W.6 Deepak must not have seen the first blow as his attention

was drawn after hearing the shouts of P.W.1 Vijay. He had rushed to

the spot after the incident, but he deposed that he was there from

beginning. If he was there, then his evidence that he rushed to the

spot is not consistent with his earlier evidence. We find that the

evidence of P.W.6 Deepak is not much reliable and hence his evidence

cannot be taken into consideration.

19. But according to evidence of P.W.1 Vijay, P.W.7 Deelip has

deposed that at the material date and time, he was talking with P.W.1

Vijay. His evidence that P.W.6 Deepak was also present there is

suspicious. He deposed that accused no.1 Vijay came from his house

with a knife in his hand and gave first blow on abdomen of P.W.1

Vijay. The second blow was given on left hand and cheek of P.W.1

Vijay. As P.W.1 Vijay warded off the blow on neck by putting his left

arm in between. He sustained injury on cheek and left hand. P.W.1

Vijay also deposed consistently that accused no.1 Vijay gave him

threat to kill by revolver. He further deposed that accused no.1 and 2

left the spot on a motorcycle. He had identified shirt worn by P.W.1

(Article No.2). In cross-examination, it is brought on record that his

Cri.Appeal No.27/2002

statement was given to him for reading. He read it for more than

three to four times and thereafter he is deposing in the Court. There is

contradiction as to who was driving the bike when accused nos.1 and

2 left the spot. He stated that there were blood stains on the shirt,

but Article no.2 shirt was not having blood stains.

20. It is argued by learned Advocate for the respondent that the

spot panchnama Exh.24 was drawn in presence of P.W.2 Ramrao and

he has deposed that no blood was seen on the spot and no blood

mixed soil was seized from the spot. P.W.2 Ramrao stated that the

spot panchnama shows that the spot was shown by P.W.6 Deepak, but

that is not true. In fact, the spot panchnama shows that the spot was

shown by P.W.7 Deelip.

21. P.W.4 Dattarao has stated that accused no.1 Vijay made a

voluntary statement on 6.12.1997 at 10.00 a.m. and in pursuance

thereof, he discovered the weapon of offence knife. His statement

was recorded as per Exh.28. In pursuance of that statement, he took

the police and panchas to his house and his mother produced the

knife (Court Article no.1). It was seized at seizure panchnama Exh.29.

Learned Advocate for the respondent no.1 relied on the fact that the

weapon was produced by mother and not by accused no.1 personally,

but it is not significant. It is significant that it was seized from his

house and it was produced at the instance of accused no.1. It is

argued that the weapon was not sent for chemical analysis and there

is no report that it was having blood stains of the blood group of the

injured. It is also brought on record that baniyan of P.W.1 Vijay was

Cri.Appeal No.27/2002

not having blood stains and it was not torn. P.W.3 Datta is the panch

to the seizure of shirt and baniyan produced by P.W.1 Vijay. The shirt

was blood stained and torn, but the baniyan was not having blood

stains and it was not torn. It is also argued that the weapons seized

were not sealed by the Investigating Officer in presence of panchas.

The learned Advocate for respondent no.1 also relied on the fact that

the F.I.R. lodged is a typed F.I.R. and the typing was carried out by the

Clerk of P.W.1 Vijay's uncle, who is Advocate.

22. We have considered the submissions made before us and the

reasoning given by the learned trial Judge. There are some lacunae in

the prosecution case. Evidence of P.W.6 Deepak is not wholly reliable

and trustworthy. The investigation is faulty, as no clothes of the

accused were seized. Thus, there is no evidence that the clothes of

the accused no.1 Vijay were stained with blood. No role has been

assigned to accused no.2 Sambhaji. However, we find that the

evidence of P.W.1 Vijay that accused no.1 Vijay all of a sudden came

and inflicted two blows of knife is reliable. P.W.1 Vijay has stated that

he met P.W.7 Deelip on the spot and was talking with him. His F.I.R. is

also similar and there was sudden assault on him by accused no.1

Vijay. He shouted for help. Dhananjay, Ravi and Deepak Chandel

came running to the spot. He has not stated that Deelip came to the

spot running after hearing the shouts. Learned trial Judge erred in

relying on the contents to that effect in the F.I.R. Exh.22 which were

not duly proved by confrontation as per Section 145 of Evidence Act

The learned trial Judge observed that the act of P.W.7 Deelip in not

intervening is suspicious. It is to be noted that there were only two

Cri.Appeal No.27/2002

blows given and in a sudden action. Accused no.1 Vijay was armed

with knife. In said situation, it cannot be expected that P.W.7 Deelip

should have intervened at the risk of injury to himself. There are

other discrepancies regarding time and arrival of P.W.6 Deepak, but

on that count, we discard the evidence of P.W.6 Deepak. Still we find

that there is no justifiable reason to discard the evidence of P.W.1

Vijay with regard to the assault by accused no.1 Vijay on him by knife,

as his evidence is corroborated by immediately lodged F.I.R. and the

medical certificate. There was also enmity between accused no.1

Vijay and P.W.1 Vijay. Therefore, reliance on the admission that there

were no quarrels between the two parties during last two years was

not proper. We find that the evidence against accused no.2 is not

sufficient to implicate him in the assault. There is nothing to show

that he had shared common intention with accused no.1 Vijay. At

least he deserves to get benefit of doubt, but we rely upon evidence

of P.W.1 Vijay to hold accused no.1 Vijay guilty for inflicting two blows

of knife on him.

23. The evidence shows that accused no.1 tried to stab P.W.1 Vijay

and also tried to inflict injury on his neck. As per evidence of P.W.5

Dr. Lomte, P.W.1 Vijay has sustained injury of 1.5 cm x 0.5 cm on

cheek, 4 cm x 0.5 cm in iliac region and 1 cm x 0.5 cm on left forearm.

We find that none of the three injuries are shown to have any depth.

We find that accused no.1 Vijay had intention to cause injuries by

knife, but the intention to commit murder is not proved beyond

reasonable doubt.

Cri.Appeal No.27/2002

24. P.W.1 Vijay and P.W.7 Deelip have deposed that while leaving

the spot, accused no.1 Vijay had threatened to kill P.W.1 Vijay by

revolver. Evidence of P.W.1 Vijay and P.W.6 Deepak on the point of

the words uttered for threat are contradictory.

25. As per Section 503 of Indian Penal Code, criminal intimidation,

mere threat to kill or cause injury is not sufficient. It should be

intended to cause that person to do any act, which he is not legally

bound to do, or omit to do any act which that person is legally entitled

to do, as the means of avoiding the execution of such threat. In the

present case, the evidence is not clear what was the intention of

giving threat and what alarm was caused to P.W.1 Vijay, as what he

should do or omit to do anything so as to avoid execution of that

threat. Hence, we hold that offence under Section 506 of Indian Penal

Code is not made out.

26. In the result, we hold accused no.1 Vijay guilty for offence

punishable under Section 324 of Indian Penal Code. The appeal

against accused no.2 deserves to be dismissed. Accused no.1 Vijay

deserves to be acquitted of other charges. We forfeit the bail bonds

of accused no.1 Vijay and direct the Police Officers concerned to

produce accused no.1 Vijay Kantrao Ramthirthkar before us on 18 th

December 2017, for hearing him on the point of sentence.

27. Appeal is partly allowed in above terms.

       ( A.M. DHAVALE, J.)               ( T.V. NALAWADE, J.)


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