Bombay High Court
Vijay Manohar Pohekar vs State Of Mah.Thr.Pso Wardha on 15 December, 2017
Bench: R. B. Deo
apeal494.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.494 OF 2004
Vijay s/o Manohar Pohekar,
Aged about 22 years,
Occu: Business,
R/o Gandhinagar, Wardha,
Tahsil and District Wardha. ....... APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Police Station, Wardha. ....... RESPONDENT
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Shri J.M. Gandhi, Advocate for Appellant.
Shri Ashish Kadukar, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
15 DECEMBER, 2017.
ORAL JUDGMENT
1] Challenge is to the judgment and order dated
14.07.2004 passed by the 2nd Ad-hoc Additional Sessions Judge,
Wardha in Sessions Trial 81/1999, by and under which, the
appellant is convicted for offence punishable under section 307 of
the Indian Penal Code ('IPC' for short) and is sentenced to suffer
rigorous imprisonment for five years and to payment of fine of
Rs.500/-. The two co-accused who faced trial, Shankar s/o
Vasantrao Shende and Pravin s/o Shankarrao Bhoyar are
acquitted of offence punishable under section 305 read with
section 34 of the IPC.
2] Heard Shri J.M. Gandhi, the learned counsel for the
appellant and Shri Ashish Kadukar, the learned Additional Public
Prosecutor for the respondent/State.
3] The case of the prosecution is that the appellant
(hereinafter referred to as 'the accused') the co-accused who faced
trial Shankar Shende and Pravin Bhoyar and an absconding
accused Mohan Deulkar assaulted the injured Danny @ Nilesh
Charade with sword. The incident occurred on 27.01.1999.
Injured Nilesh and his friends went to the Adiwasi colony, Wardha
on hearing the news that a woman was burnt in the said colony.
The injured along with Mohan Hinge and Gajanan Sahare then
proceeded to the house of Gajanan Sahare. One Kishor Kumbhare
met them on way. Injured Nilesh talked with Kishor Kumbhare
and then sat down on the foot-steps of the grocery shop of one
Navnath. The four accused who were passing by the road
assaulted injured Nilesh. The accused Vijay Pohekar assaulted
Nilesh by inflicting a sword blow on the head.
4] The case of the prosecution is that the friends of the
injured informed his mother Vimalbai Charade (P.W.7) who
rushed to the Police Station and lodged report (Exh.102) on the
basis of which offence punishable under section 307 read with
section 34 of the IPC came to be registered against the accused
(Exh.122). The accused Vijay Pohekar went to the Police Station
carrying sword which had blood stains and the said sword was
seized vide (Exh.123). The Investigating Officer prepared the spot
panchnama (Exh.124) and seized the sample of the blood smeared
earth (Exh.125) and recorded the statement of the witnesses.
The injured Nilesh Charade was medically examined
on 27.01.1999 by P.W.3 Dr. Shailaja Kale who noticed three
injuries on his person. The report of the medical examination is
Exh.65. The injured was then referred to Government Hospital,
Nagpur, P.W.4 PSI Shri Nemade visited the Government Hospital,
Nagpur to record the statement of the injured, however, the
injured stated that he was not in the frame of mind or the physical
state to give a statement. However, according to the Medical
Officer the injured was fit to give the statement. The culmination
of the investigation led to submission of charge-sheet in the Court
of Chief Judicial Magistrate, Wardha who committed the case to
the Sessions Court, Wardha. The Sessions Court framed charge
under section 307 read with section 34 of the IPC. The accused
abjured guilt and claimed to be tried in accordance with law.
The defence is of total denial and false implication.
5] One of the accused Mohan Deulkar was declared
absconder and his trial was separated from that of the other
accused. The learned Sessions Judge, by the judgment and order
impugned was pleased to acquit the Shankar Shende and Pravin
Bhoyar and to convict the accused under section 307 read with
section 34 of the IPC.
6] Shri Gandhi, the learned counsel for the accused
would submit that the conviction is substantially, if not entirely,
based on the evidence of the injured Nilesh (P.W.8) who states
that the accused inflicted a sword blow on his head. The evidence
of the injured must be discarded as only unreliable, is the
submission.
7] Per contra, Shri Kadukar, the learned A.P.P. would
support the judgment and order impugned, although the learned
A.P.P. fairly does not dispute the submission of the learned
counsel for the accused that the only evidence on which the
prosecution is heavily relying is that of the injured Nilesh (P.W.8).
8] It would be apposite to first analyze the evidence of
the injured Nilesh who is examined as P.W.8. It is well settled that
ordinarily the evidence of an injured witness must be given due
weight. It is not a normal human conduct for an injured to
inculpate the innocent and to exculpate the guilty. However, this
is not a immutable rule of evidence.
9] Be it noted, that the information of the assault on the
injured was conveyed to the informant P.W.7 by the two friends of
the injured, Gajanan Sahare and Manoj Hinge, who have not been
examined for the reasons only known to the prosecution. The First
Information Report does not name the accused. The First
Information Report names the co-accused Shankar Shende and
Pravin Bhoyar and two others. The accused is named for the first
time 18 days after the incident in the statement of the injured
Nilesh which was recorded on 15.02.1999.
It is not as if the injured was not in a fit condition to
give the statement. The evidence of one of the Investigating
Officer P.W.4 Rajabhau Nemade is that he visited the Medical
College and Hospital, Nagpur to record the statement of the
injured on 01.02.1999. The Medical Officer certified that the
injured Nilesh is fit to give the statement. The certificate was
issued after examining the injured Nilesh. Pertinently, it is elicited
from P.W.4 in the cross-examination that the injured talked with
the witness for 5 to 7 minutes. As a fact, although the injured
Nilesh refused to give a statement about the incident, he did give
a statement on 01.02.1999 (Exh.68) which is to the effect that
since he is not feeling well he is not in a position to state anything
regarding the incident.
10] The prosecution examined one Sandeep s/o
Bholaprasad Trivedi (P.W.1) and one Sanjay s/o Bholaprasad
Tribedi (P.W.2) as eye witnesses to the incident. Both did not
support the prosecution, were declared hostile and
cross-examined by the learned A.P.P. Nothing is elicited in the
cross-examination to assist the prosecution. I have already noted
that the friends of the injured who informed the mother of the
injured (P.W.7) about the incident have not been examined.
The version of the prosecution that the accused came to the Police
Station with a sword which had blood stains must be discarded as
absolutely unreliable. Both the panchas to the seizure of the sword
on production by the accused P.W.5 Ramesh s/o Ajabrao
Jambhulkar and P.W.6 Ashok s/o Ghansham Mankar did not
support the prosecution. The learned Sessions Judge has held that
the seizure of the sword from the accused is proved by P.W.10
Pundlik s/o Motiram Patil who was the duty officer at City Police
Station on 27.01.1999. In the examination in chief, P.W.10 states
thus :-
At the relevant time accused Vijay Pohekar had
been to the police station. He was having a sword
having blood stains. I called two panchas. I seized the
said sword in presence of panchas. Panchanama shown
to me is the same. It bears my signature, signatures of
panchas and accused Vijay Pohekar. Contents of it are
true and correct. It is at Ex.123.
11] In view of the fact that both the panchas have not
supported the prosecution, and in view of the attending
circumstances, it would be extremely unsafe to hold the seizure of
the sword proved. The solitary statement of P.W.10 Police Station
Officer that the accused walked in the Police Station with the
sword, is not confidence inspiring.
12] It is evident, and in all fairness the learned A.P.P. is
not submitting to the contrary, that the only evidence or
incriminating circumstance against the accused is the evidence of
P.W.8 that the accused inflicted a sword blow on his head. I am
not inclined to accept the evidence of P.W.8, although he is an
injured witness, as implicitly reliable or trustworthy.
The explanation for not having given a statement on 01.02.1999
when P.W.4 Police Officer, having obtained a fitness certificate
from the Medical Officer, made an enquiry with the injured, is
hardly satisfactory and must be discarded. The Medical Officer
certified P.W.8 injured fit to give the statement. The injured did
give a statement to the effect that he was not in a position to talk
about the incident, since he was not feeling well. P.W.4 admits
that he had a talk with the injured for 5 to 7 minutes.
Nothing prevented the injured from disclosing the name of the
accused. The fact that the name of the accused is disclosed by the
injured only on 15.02.1999 renders the evidence of P.W.2
unworthy of acceptance. If the evidence of the injured is kept out
of consideration, there is no evidence on record to prove the guilt
of the accused, much less to prove the guilt beyond reasonable
doubt.
13] The judgment and order impugned is unsustainable
and is set aside.
14] The accused is acquitted of offence punishable under
section 307 read with section 34 of the IPC.
15] The bail bond of the accused shall stand discharged.
16] The fine paid by the accused, if any, shall be
refunded.
17] The appeal is allowed.
JUDGE
NSN
