Bombay High Court

Vyanktesh S/O Gajanan Jumde vs The State (Thru. P.S.O.) on 7 December, 2017

Bench: R. B. Deo

 apeal296.08.J.odt                         1




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


                     CRIMINAL APPEAL NO.296 OF 2008


          Vyanktesh s/o Gajanan Jumde,
          Aged about 30 yrs.,
          Occu: Labour, R/o Abhiyanta Colony
          Naginabagh Ward No.25, Chandrapur.
          (In Jail Custody).                 ....... APPELLANT


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


          The State (Through P.S. Officer)
          Police Station Ramnagar,
          Chandrapur.                                        ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Sachin Zoting, Advocate for Appellant.
          Shri P.S. Tembhare, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J.

          DATE:               th
                            7    DECEMBER, 2017.


 ORAL JUDGMENT


 1]               Exception is taken to the judgment and order dated

07.05.2008 passed by the learned Adhoc Additional Sessions

Judge-3, Chandrapur in Sessions Case 65/2007, by and under

which, the appellant-accused is convicted of offence punishable

under section 335 of the Indian Penal Code (IPC for short) and is

sentenced to suffer rigorous imprisonment for three years.

The accused is acquitted of offence punishable under section 307

of IPC and section 4 read with section 25 of the Indian Arms Act.

2] Heard Shri Sachin Zoting, the learned Counsel for the

appellant and Shri P.S. Tembhare, the learned Additional Public

Prosecutor for the respondent/State.

3] Shri Zoting, the learned counsel for the accused

submits that the judgment impugned is against the weight of

evidence and the marshaling of evidence on record by the learned

Sessions Judge is flawed. The defence that the

injured/complainant suffered injury due to fall on the iron peg in

the court-yard, is probabilized on the touchstone of

preponderance of probabilities, is the submission.

4] Shri P.S. Tembhare, the learned Additional Public

Prosecutor supports the judgment impugned and contends that

the findings recorded by the learned Sessions Judge are

unexceptionable and do not suffer from any infirmity, on facts and

in law.

5] The accused faced trial for offence punishable under

section 307 of IPC and section 4 read with section 25 of the Indian

Arms Act pursuant to an offence registered at the Ramnagar Police

Station, Chandrapur.

6] The genesis of the prosecution lies in the oral report

dated 15.01.2007 (Exh.16) lodged by the informant Chaitali

Pidurkar, the wife of injured Kishor, the gist of which oral report

is that at 06:45 p.m. informant was cooking food in the house, her

husband Kishor was engaged in a conversation with the landlord

Gajanan Jumde on the ground floor. The elder son of the landlord

Shantaram was also present. The accused, who is the younger son

of the landlord arrived, saw her husband Kishor sitting in the chair

and talking with his father and brother. The accused picked up a

quarrel with the injured Kishor due to old enmity and started

abusing his father Gajanan Jumde berating Gajanan for inviting

tenants and permitting them to sit in front of the house.

The injured Kishor was simply standing at the spot while the

accused was engaged in an altercation with Gajanan and

Shantaram Jumde.

7] The informant came to the ground floor on hearing

the commotion. The informant saw the accused taking out a knife

from the auto-rickshaw, and ignoring the words of caution of

Gajanan and Shantaram, inflicting a stab blow on the left side of

the stomach of her husband Kishor. Blood was oozing from the

wound. The accused again attempted to inflict a blow of the knife

and was prevented from assaulting injured further by his father

and brother and Sau. Vanita. The injured was rushed to the

Hospital by the father and brother of the accused, and they were

accompanied by the elder son of the informant and the injured

Paras. Chaitali went to the Ramnagar Police Station, gave oral

report Exh.16 which was reduced into writing and an offence

under section 326 of IPC was registered against the accused.

The Investigating Officer (I.O.) Shri Bhusari, PSI obtained the

M.L.C. report (Exh.24) of the injured, prepared the spot

panchnama (Exh.13), the investigation was then taken over by PSI

Mujawar who added offence under section 307 of IPC, and section

4 read with section 25 of the Indian Arms Act in the crime.

8] The accused was arrested on 12.02.2007, his blood

sample was collected and seized, the accused, vide memorandum

under section 27 of the Indian Evidence Act (Exh.26) expressed

willingness to discover the weapon kept hidden in the latrine of

the house of the accused. The weapon was discovered at the

instance of the accused and along with the clothes of the accused

was sent for chemical analysis. The completion of the

investigation led to submission of the charge-sheet in the Court of

Chief Judicial Magistrate, Chandrapur who committed the case to

the Sessions Court. The learned Sessions Judge framed charge at

Exh.5 under section 307, the accused pleaded not guilty and

claimed to be tried in accordance with law. The defence is of total

denial.

9] The material witnesses, who are the eye witnesses to

the incident, are P.W.2 Kishor Pidurkar who is the injured, P.W.3

Chaitali the wife of the injured and the informant, P.W.4 Paras the

son of the injured and an eye witness to the incident, P.W.5 Savita

Darekar and P.W.6 Nanda Bakale who though examined as eye

witnesses, did not support the prosecution. P.W.7 Dr. Sangita

Narnaware conducted the medical examination of the injured,

P.W.8 Bhaskar Sahare proves the memorandum and discovery of

weapon at the instance of the accused. P.W.10 PSI Tayyub

Mujawar and P.W.11 PSI Ramchandra Bhusari are the

Investigating Officers. In the 313 of Cr.P.C. statement, the accused

states that the injured was are under the influence of liquor fell on

an iron peg. P.W.2 has implicated the accused falsely in view of

the strained relations, is the defence taken in the 313 of Cr.P.C.

statement.

10] The evidence of P.W.2, who is the injured witness, is

that he was engaged in a conversation with the father of the

accused. The father of the accused Gajanan asked the son of the

injured Paras to give the injured a chair to sit, this was objected by

the accused, an altercation ensued and when the father of the

accused told the accused that it was he who had called the injured

P.W.1, a quarrel ensued between the accused and his father

Gajanan. The elder brother of the accused Shantaram also arrived

at the scene when the quarrel between the accused and his father

Gajanan was on going. The accused rushed towards the auto,

returned to the scene armed with a weapon and inflicted a blow

on the stomach of the injured P.W.1, is the deposition.

The credibility of the injured witness is not shaken in the

extensive and searching cross-examination. It is suggested that

P.W.2 is falsely implicating the accused in view of strained

relationship. It is also suggested to the injured that he suffered the

injury due to a fall on the iron peg in a scuffle between the injured

and the father of the accused Gajanan Jumde. The trend of the

cross-examination would suggest that the presence of the injured

and that of the accused on the scene of the occurrence is not in

dispute. The suggestion of the defence is that in the scuffle the

injured who was under the influence of liquor fell on an iron peg

and suffered injury due to the said fall. It is elicited in the

cross-examination of P.W.7 Dr. Sangita who examined the injured

that the injury suffered is possible due to fall on an iron peg.

11] I have no hesitation in recording a finding that the

defence that the injured fell on an iron peg and due to which fall

he suffered injury, must be discarded. The defence is not

probabilized even on the touchstone of preponderance of

probabilities.

12] The evidence of an injured witness must ordinarily be

placed on a higher pedestal as compared to other witnesses.

It would be in rare situations, if any, that an injured witness will

exculpate the guilty and inculpate the innocent. The injury

suffered by the witness lends an assurance to the prosecution case

that the witness was present on the spot, which presence is even

otherwise not in a serious dispute. The evidence of P.W.1 that the

accused went to the auto-rickshaw, came back armed with

weapon and inflicted stab blow on the stomach of P.W.1, is more

than corroborated by the evidence of the informant Chaitali

(P.W.3) and the child witness Paras (P.W.4) who is the son of the

injured Kishor. The evidence of the eye witnesses is further

corroborated by the medical evidence and the discovery of the

knife, on which blood stains were detected in the chemical

analysis, at the instance of the accused, from the toilet in the

house of the accused. Nothing is elicited in the cross-examination

of the witnesses or the Investigating Officers to disbelieve the

discovery of the knife from the toilet of the accused. The blood

stains are detected on the clothes of the accused, which

incriminating circumstance remains unexplained.

13] I have given my anxious consideration to the evidence

on record, and having done so, I am inclined to agree with the

findings recorded by the learned Sessions Judge, that the accused

inflicted stab blow on the left side stomach of the injured Kishor.

The medical evidence would show that the injury suffered is

indeed grievous. The medical examination of the injured revealed

that the internal viscera was protruding out from left

hypochondriac region. P.W.3 Dr. Sangita Narnaware has deposed

thus, to which there is no serious challenge in the

cross-examination:

"I had examined the patient vide MLC No.369. On examination I found stab wound deep penetrating of size 10 x 6 cm. deep penetrating. Internal viscera coming out in left hypochondriac region. Injury was grievous in nature, fresh caused by sharp cutting object over chest muscle. Healing time 3 weeks. I advised to take expert opinion regarding wound because the wound could not be assessed due to profuse bleeding

from wound. Patient was admitted in causality ward for expert opinion and further line of treatment. MLC report bears my signature. Its contents are true. It is at Ex.24. It also bears thumb impression of Kishor Pidurkar. Injury can be caused due to blow of knife Art "A" which is now shown to me."

14] The learned Sessions Judge has convicted the accused

for offence punishable under section 335 of IPC on the premise

that the accused was provoked in assaulting the injured Kishor

and has sentenced the accused to suffer rigorous imprisonment for

three years. The scaling down of offence from section 307 of IPC,

with which the accused was charged, to section 335 instead of

section 326 is debatable since there is no cogent material on

record to suggest any provocation, much less a provocation in

close proximity with the assault. Be that as it may, since the State

has accepted the judgment of the learned Sessions Judge, I refrain

from making any further observation.

15] The appeal is sans merit and is dismissed.