Arun Tanbaji Dudhe (In Jail) vs The State Of Maha. Thr. P.S.O. P.S. ...
2017 Latest Caselaw 3959 Bom

Judgment

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

                   CRIMINAL APPEAL NO.121 OF 2015

Arun s/o Tanbaji Dudhe, (In jail)
Aged about 48 years, Occupation - Labour,
R/o Zinguji Ward, Bhadrawati,
Tahsil Bhadrawati, District Chandrapur.         ..... Appellant.

                                 ::   VERSUS   ::

State of Maharashtra,
Through its Police Station Officer,
Police Station Bhadrawati,
Tahsil Bhadrawati, District Chandrapur.     ..... Respondent.

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           Ms Sulbha B. Saikhede, Counsel for the appellant.
           Shri R.S. Nayak, Addl.P.P. for the respondent/State.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : JULY 4, 2017.

ORAL JUDGMENT

1. Being aggrieved by judgment and order of

conviction passed by learned Additional Sessions Judge,

Warora in Sessions Case No.38 of 2011 dated 12.1.2015 by

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which the appellant is convicted for the offence punishable

under Section 307 of the Indian Penal Code and is directed to

suffer rigorous imprisonment for 10 years and to pay a fine of

Rs.5,000/- and in default of payment of fine to undergo

rigorous imprisonment for 6 months.

2. The prosecution case, as it was disclosed during

the course of Trial, is stated herein under:

PW9 a Teacher Sunil Namdeorao Bawane reached

to Bhadrawati Police Station on 14.8.2011 at 19:40 hours. That

time, PW11 Assistant Police Inspector Vijaykumar

Jamnaprashad Tiwari was attached to Bhadrawati Police

Station. PW9 Sunil informed about assault at Zinguji Ward.

PW11 Vijaykumar immediately took the said information in a

station diary vide Entry No.33 and proceeded to the spot of

incident along with police staff.

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3. When PW11 Assistant Police Inspector Vijaykumar

reached to the spot at Zinguji Ward, he was informed that

injured is shifted to Shinde Hospital. On getting such

information, PW11 Vijaykumar visited Shinde Hospital where

treatment on injured was going on. On reaching to Shinde

Hospital, PW11 Vijaykumar gave a requisition Exhibit 31 to

the medical officer, who was present in the said hospital, as to

whether injured is in a position to give his statement. PW2

Dr. Vivek Naikantrao Shinde of Shinde Hospital examined the

patient and found that the patient was able to give his

statement. Thereafter, PW11 Vijaykumar recorded a

statement of PW1 injured Ishwar Tanbaji Dudhe in presence

of PW2 Dr. Shinde.

4. As per the statement of PW1 injured Ishwar, which

is available at Exhibit 23, he retired as a Charge-man Grade-I

from Ordnance Factory at Bhadrawati in the month of August

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2009. A residential house, in the name of his mother, is

situated at Zinguji Ward. His parents are dead. They are four

brothers. PW1 injured Ishwar eldest one. The youngest is

appellant accused Arun Dudhe. He stated before the police

officer, while recording his statement, that appellant accused

Arun Dudhe is a criminal. He committed murder of his father-

in-law Ramdas Khobragade and for that he suffered life

imprisonment. It is also stated in the statement by PW1

injured Ishwar that prior to six months of the incident,

appellant accused Arun Dudhe was released from jail after

completing about 20 years of imprisonment. Thereafter, one

room was provided to him for his residence. He is habituated

to drinking and is a quarrelsome person. It is also stated in

statement Exhibit 23 that on 14.8.2011 when PW1 injured

Ishwar returned to his house at 4:00 O'clock and then stepped

outside his house at 6:00 O'clock and when returning,

.....5/-

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appellant accused Arun Dudhe assaulted on him by means of a

spade on his head. Thereafter, accused Arun Dudhe ran away.

It is stated in the statement that on account of partition, he

was assaulted.

5. After recording statement, PW11 Assistant Police

Inspector Vijaykumar returned to the police station along

with medical examination report of PW1 injured Ishwar.

PW11 Vijaykumar, thereafter, on the basis of statement of PW1

injured Ishwar registered crime vide Crime No.168 of 2011 for the

offence punishable under Section 307 of the Indian Penal. The printed

FIR is at Exhibit 60.

6. The accused was arrested under panchanama Exhibit 62

in the night hours. On the next day of incident, PW11 investigating

officer Vijaykumar visited the spot of incident which was shown by

PW7 brother of injured Bharat Tanbaji Dudhe. The spot panchanama

was drawn in presence of panchas. One of them was examined as PW8

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Shankar Vishwanath Thakre. The spot panchanama is at Exhibit 52.

From the spot of the incident, the investigating officer collected simple

as well as blood mixed soil under seizure memo Exhibit 64. The clothes

of PW1 injured Ishwar were also seized from he Shinde Hospital under

seizure memo Exhibit 25.

7. During the investigation, it was also revealed to PW11

investigating officer Vijaykumar that after assault on PW1 injured

Ishwar, appellant Arun Dudhe hit spade to one PW3 Sundarabai Hari

Bawne. Therefore, PW11 investigating officer Vijaykumar sent

said PW3 Sundarabai for her medical examination by requisition

Exhibit 41.

8. During police custody remand, appellant accused Arun

Dudhe gave his memorandum statement Exhibit 65 thereby he agreed

to show the place where he has concealed the weapon i.e. spade. The

said voluntary statement was recorded in the presence of panchas.

Exhibit 65-A is a recovery panchanama of spade which was recovered

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at the behest of accused Arun Dudhe. The clothes of accused Arun

Dudhe were also seized under seizure memo Exhibit 37-A. PW11

investigating officer Vijaykumar also sent the weapon to the Rural

Hospital at Warora vide his query letter Exhibit 44. Since the MLC was

done by Dr. Shinde, the spade was sent to Dr. Shinde Hospital under

requisition letter Exhibit 32. Dr. Shinde gave his report Exhibit 32-A

by which he opined that the injuries suffered by PW1 injured Ishwar,

as mentioned in the MLC, are possible by such a weapon. PW11

investigating officer Vijaykumar also sent all Muddemal

properties to the chemical analyzer. After completion of the entire

investigation, charge-sheet was filed.

9. Learned Sessions Judge Warora, after the case was

committed to the said Court, framed charge against appellant accused

Arun Dudhe for the offence punishable under Section 307 of the Indian

Penal Code. Appellant accused Arun Dudhe denied the charge and

claimed for his Trial. In all 11 witnesses were examined by the

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prosecution to bring home the guilt of the appellant. So also, the

prosecution relied on various documents which were proved during

the course of Trial. After a full dressed Trial, learned Judge of the

Court below recorded a finding that the prosecution has successfully

brought the guilt of the appellant to home and hence appellant

accused Arun Dudhe was convicted under Section 307 of the Indian

Penal Code.

10. I have heard learned counsel Ms Sulbha Saikhede

appointed for the appellant and learned Additional Public Prosecutor

Shri R.S. Nayak for the State. With the assistance of these learned

counsel, I have gone through the record and proceedings and also

notes of evidence.

11. Learned counsel Ms Sulbha Saikhede for the appellant

submits that that the prosecution has not proved the motive since

nothing is brought on record by the prosecution about partition of

residential house. She further submitted that appellant accused Arun

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Dudhe is falsely implicated in the crime at the behest of PW1 injured

Ishwar and PW7 his brother Bharat. She submitted that injuries

suffered by PW1 Ishwar are not caused by the appellant but those are

accidental one as injured was under the influence of liquor and for

that she has invited my attention to the evidence of PW2 Dr. Vivek

Naikantrao Shinde.

12. Per contra, learned Additional Public Prosecutor Shri

R.S. Nayak for the State submitted that the evidences of PW1 injured

Ishwar, independent witness PW3 Sundarabai, and PW9 Sunil clearly

show that the appellant is responsible for the injuries and hence he

prayed for dismissal of the appeal.

13. PW1 injured Ishwar was brought to the hospital of PW2

Dr. Vivek Naikantrao Shinde, who runs hospital known as Shinde

Multi Specialist Hospital. On examination of PW1 injured Ishwar, he

noticed the following injuries:

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"1) lacerated wound on occipital region size 6x2x1 c.m. caused by hard and blunt object. Injury was grievous in nature.

2) lacerated wound on occipital region size 4x2x1 cm. caused by hard and blunt object. Injury bas grievous in nature.

3) Lacerated wound on midscalp region size 4x2x1 cm. caused by hard and blunt object. Injury was grievous in nature.

4) Lacerated wound on midscalp region 3x2x1 caused by had and blunt object. Injury was grievous in nature.

5) Lacerated wound on forehead region in inter cantonal regioin dorsal of nose size 6x2x1 caused by hard blunt object and grievous in nature.

6) Lacerated wound on right middle finger, size 2x1x1 cm. caused by hard and blunt object and injury simple in nature."

Injury certificate of PW1 injured Ishwar is available on

record at Exhibit 24. As per the evidence of PW2 Dr. Vivek Shinde,

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first five injuries were grievous in nature and the age of injuries is less

than 3 hours. PW2 Dr. Shinde also testified that in his presence

statement of PW1 injured Ishwar was recorded by PW11 investigating

officer Vijaykumar which was treated as an FIR. Looking to the

evidence and injury certificate it is clear that PW1 injured Ishwar

suffered 5 grievous injuries on the vital part of his body.

14. The weapon, which was attributed by PW1 injured Ishwar

as a mean of assault on him, was a spade as it could be seen from his

statement Exhibit 23. The said weapon is recovered at the behest of

appellant accused Arun Dudhe. The said weapon was also sent to

PW2 Dr. Shinde for its examination to give the opinion as to whether

injuries, as found by him in Exhibit 24, can be caused by such a

weapon. Exhibit 32-A, the opinion shows that injuries are possible by

the said weapon.

15. Learned counsel Ms Sulbha Saikhede for the appellant

invited my attention to the portion of the cross-examination of PW2 Dr.

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Shinde in which he has stated that the patient was under the influence

of liquor and if a person is under the influence of liquor and falls on

face, such injuries are possible. She, therefore, submits that the

appellant is falsely implicated. Though at the first blush this

submission appears to be an attractive one, on closure scrutiny of the

entire evidences brought on record this submission is required to be

rejected.

16. The evidences of the prosecution have to be read as a

whole and not in bits and pieces. The incident in question has

occurred on 14.8.2011. The cross-examination of PW2 Dr. Shinde was

done on 10.3.2014. Thus, PW2 Dr. Shinde was deposing after 2 and 1/2

years. MLC report Exhibit 24 is dated 14.8.2011. The said

contemporaneous document is totally silent that at the time of

examination of injured, PW2 Dr. Shinde noticed that the patient was

under the influence of liquor. On what basis, PW2 Dr. Shinde made a

such statement in his cross examination that the patient was under the

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influence of liquor, is unascertainable. Had at the time of examination

of PW1 injured Ishwar, PW2 Dr. Shinde noticed that PW1 Ishwar was

under the influence of liquor, he must not have missed the said fact

while preparing Exhibit 24. Not only that, PW11 investigating officer

Vijaykumar immediately reached to the hospital. Had PW1 injured

Ishwar under the influence of liquor, PW11 investigating officer

Vijaykumar could have taken steps for his breathing test. In absence

of all these things, I am not prepared to accept the such statement

made by PW2 Dr. Shinde in his cross-examination. Therefore,

submission of learned counsel Ms Sulbha Saikhede for the appellant is

required to be rejected.

17. Another submission of learned counsel for the appellant

is, that the prosecution has not proved the motive. She submitted that

in the report itself it is stated by PW1 injured Ishwar that on account

of partition of a residential house he was attacked.

18. In the present prosecution case, apart from PW1 injured

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Ishwar, there is an eyewitness account. When the prosecution case

consists of evidence of PW1 injured Ishwar and an eyewitness, motive

loses its importance. The evidence of PW1 injured Ishwar is duly

corroborated by the medical certificate Exhibit 24. Further, on getting

information from PW10 Khushbu, PW7 Bharat and PW4 his wife Sunita

reached to the spot of incident immediately where they noticed PW1

injured Ishwar was lying in a condition having injuries on his head.

When they lifted PW1 injured Ishwar, it was disclosed to them by him

that appellant was assaulted on him.

19. Sundarabai is also examined by the prosecution as its

witness No.3. Her evidence shows that she knows the appellant. She

was standing on the road. That time, she noticed that the appellant

was beating his elder brother by spade and when she tried to

intervene, she was also assaulted. Her nephew PW9 Sunil when came

to his house, he noticed PW3 Sundarabai was weeping and the

appellant was leaving the said place along with a spade. He also

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noticed thatPW1 injured Ishwar was lying in an injured condition.

20. PW3 Sundarabai was examined by PW6 Dr. Ravikiran

Pore. He noticed that she is having injury on her right foot ankle.

That corroborates the version of PW3 Sundarabai that she was

assaulted on her right ankle by spade .

21. PW11 investigating officer Vijaykumar sent muddemal

property to the chemical analyzer under requisition Exhibit 67. The

clothes which were seized from the person of the appellant were found

to be stained with human blood so also the spade was having stains of

human blood. When this incriminating circumstance was put to the

appellant when he was examined by learned Judge of the Court below

under Section 313 of the Code of Criminal Procedure, he could not

offer any explanation.

22. Evidence of PW1 injured Ishwar is found to be a natural

and a trustworthy. His version is also duly corroborated by other

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evidences available on record. The scientific evidence also shows the

point of guilt towards the appellant.

23. Re-appreciation of the entire prosecution case leads me to

pass the following order:

ORDER

The criminal appeal is dismissed.

JUDGE

!! BRW !!

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