Dinanth Mahadu Sargar vs State Of ...
2017 Latest Caselaw 9835 Bom

                                      1                                       apeal562.02




                                               

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


 CRIMINAL APPEAL NO. 562 OF 2002



 Dinanath Mahdu Sargar,
 Aged about 46 years, 
 R/o Pokhari, Tq. Pusad, 
 District - Yavatmal.                                         ....       APPELLANT


                   VERSUS


 State of Maharashtra, 
 through Police Station Officer, 
 Police Station Pusad City.                                   ....       RESPONDENT

 ______________________________________________________________

              Shri D.G. Patil, Advocate for the appellant, 
           Mrs. M.H. Deshmukh, Addl.P.P. for the respondent.
  ______________________________________________________________

                            CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 25-09-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 20-12-2017

 JUDGMENT : 

Exception is taken to the judgment and order dated

16-9-2002 passed by the learned 2nd Ad hoc Additional Sessions Judge,

Pusad, in Sessions Trial 70/1998, by and under which the appellant

Dinanath Sargar is convicted for offence punishable under Section 307

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of the Indian Penal Code ("Act" for short) and is sentenced to suffer

simple imprisonment for five years and to payment of fine of Rs.500/-.

The co-accused Ramesh Sargar, Ganesh Sargar and Shivaji Sargar are

acquitted.

2. The prosecution case, as is unfolded during the trial, is

that the complainant injured Ramrao Sargar is the blood brother of

appellant Dinanath (hereinafter referred to as the "accused").

Co-accused Ramesh and Shivaji are the cousins of the complainant and

the accused, and co-accused Ganesh is the nephew of the complainant

and the accused. The complainant had gone to Sheloo (Bu.) on 08-5-

1998 to attend a marriage. He had meals and then went to the house

of one Panjabrao Maske to rest. Accused and co-accused came there,

picked up a quarrel with the complainant and attempted to stab him

with a dagger (jambia). One Krushnarao Markand rescued the

complainant. The complainant then went to the bus stand, the accused

chased him, accused 1 whipped out a dagger and stabbed the

complainant on the abdomen multiple times. The complainant was

rescued by one Raju Kaniram Chavan.

The complainant was brought to the police station in an

auto-rickshaw, then referred to Rural Hospital, Pusad where a

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statement was recorded as dying declaration. The complainant was

referred to the Yavatmal Hospital where he was admitted till

18-5-1998.

The spot panchanama was recorded, the dagger seized

from accused Dinanath, the clothes of the complainant and the accused

were seized, statements of witnesses were recorded and upon

completion of the investigation charge-sheet was submitted in the court

of the Judicial Magistrate First Class, Pusad who committed the

proceedings to the Sessions Court. The learned Sessions Judge framed

charge Exhibit 19 under Section 307 of the Indian Penal Code, the

accused pleaded not guilty and claimed to be tried in accordance with

law. The defence is of total denial. The accused Dinanath Sargar also

took a defence that he is falsely implicated due to previous enmity.

The complainant had assaulted the accused with sword and a

prosecution was pending, was the submission of the accused. The

accused also stated that a civil litigation is pending between the

complainant and the accused in relation to a property dispute.

3. Shri D.G. Patil, learned Counsel for the accused submits

that the judgment of conviction is against the weight of the evidence on

record. The defence of false implication is more than probablised on

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the touchstone of preponderance of probabilities, is the submission.

Shri D.G. Patil, learned Counsel would submit that the prosecution

failed to examine witnesses who were named by the injured

complainant in the statement which was then recorded as a dying

declaration. P.W.6 Raju Chavan is a got up witness, is the submission.

The seizure of the knife and the clothes of the accused is attacked as

untrustworthy since the panch witnesses did not support the

prosecution.

4. Per contra, Mrs. M.H. Deshmukh, learned Additional

Public Prosecutor would submit that the judgment impugned does not

suffer from any infirmity.

5. The most important witnesses from the perspective of the

prosecution are P.W.5 Ramrao Sargar, the complainant and P.W.6 Raju

Chavan who has deposed that he witnessed the assault.

P.W.5 Ramrao is an injured witness and his evidence

deserves to be given due weightage. It is true that the previous enmity

between the complainant and the accused is brought on record by the

defence. However, the evidence of the injured witness cannot be

viewed with suspicion only because the injured witness and the accused

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had inimical relations. Previous enmity is a double edged sword which

can be a motive for the assault or reason for false implication.

The evidence of the injured complainant is confidence

inspiring. He has described with reasonable particularity the role

played by the accused. The injured witness has attributed the assault

with the dagger to the accused. The report is lodged immediately and

the evidence is broadly consistent with the said report. He has deposed

that since he took possession of the land from which he was illegally

dispossessed by the accused, through the process of law, his relations

with the accused turned sour. The accused assaulted his son causing

fracture which was the starting point of the enmity, is the deposition.

The testimony of the injured witness is not seriously shaken in the

extensive and gruelling cross-examination. However, it is brought on

record that he knew Raju Chavan (P.W.6) since he met the said witness

in the house of one Manohar Naik. This admission is relied upon by

the defence to contend that P.W.6 Raju is an introduced witness since

he claims not to be knowing the complainant injured before the assault.

The evidence of the said witness must indeed be taken with a pinch of

salt. The inconsistency between the evidence of the injured

complainant who asserts that he did know P.W.6 Raju before the

incident and that of the evidence of P.W.6 Raju who claims that he did

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not know the complainant before the incident, is significant. Moreover,

P.W.6 Raju has identified the accused as the person who was assaulting

the complainant with knife, for the first time in the Court. I am

inclined to agree with the submission of the learned Counsel for the

accused that the evidence of P.W.6 Raju must be kept out of the

consideration as unreliable.

6. However, the evidence of P.W.5, the injured complainant

is sufficient to satisfy the conscious of this Court that the accused is

rightly convicted for offence punishable under Section 307 of the

Indian Penal Code. A substantial part of the cross-examination of

P.W.5 is directed at suggesting strained relationship between the

injured complainant and his son Nandu and the suggestion is that it

was Nandu who assaulted the complainant and the accused is falsely

implicated. The defence, highly improbable as the defence is, is not

probablised even on the touchstone of preponderance of probabilities,.

A few statements are shown to be omissions. But then, they do not

touch the core and relate only to peripheral aspects of the incident.

7. The statement Exhibit 71 which was recorded by the

Executive Magistrate as a dying declaration, would be akin to a

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statement under Section 164 of the Criminal Procedure Code and the

learned Sessions Judge has observed that the said statement could be

used for the purpose of corroborating the evidence of the injured

complainant. Having so done, the learned Sessions Judge has recorded

a finding that the contents of Exhibit 71 corroborate the testimony of

the injured complainant to the hilt.

8. I see no reason to take a different view.

9. The fact that the accused came prepared to assault the

complainant armed with dagger, the manner in which the assault took

place, the nature of the weapon and the nature and extent of the

injuries cumulatively prove that the intention of the accused was to

cause death and there is no infirmity in the finding recorded by the

learned Sessions Judge that the accused is liable to be convicted under

Section 307 of the Indian Penal Code.

10. The appeal is sans merit and is rejected.

The bail bond of the accused shall stand cancelled and he

be taken into custody to serve the sentence.

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The accused is entitled to set-off under Section 428 of the

Criminal Procedure Code.

The Superintendent of Police, Yavatmal to submit the

compliance report in the registry of this Court within fifteen days,

failing which the disposed of appeal shall be listed under the caption

order matters for passing appropriate orders.

JUDGE adgokar