Ramchandra S/O Kawadu Kumbhale vs State Of Maharashtra
2017 Latest Caselaw 4805 Bom

                                                    1                      apeal52.03.odt

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

                        CRIMINAL APPEAL NO.52/2003

      Ramchandra s/o Kawadu Kumbhale,
      aged 25 years, Occ. Labourer,r/o Chicholi
      Khaparkheda (Ward No.1) Dist. Nagpur
      (At present Central Jail, Nagpur.)     .....APPELLANT

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

      The State of Maharashtra through 
      Police Station Officer, P. S. Khaparkheda, 
      Dist. Nagpur.                                           ...RESPONDENT
 -------------------------------------------------------------------------------------------
 None for the appellant.
 Mr. N. B. Jawade, A.P.P. for respondent-State. 
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 20.07.2017

ORAL JUDGMENT

1. This appeal is directed against the judgment and order

of conviction passed by the learned 1 st Ad hoc Additional Sessions

Judge, Nagpur dated 16.12.2002 in Sessions Trial No.576/2001

convicting the appellant for an offence punishable under Section

394 of the Indian Penal Code and directing to suffer sentence of 5

years and to pay a fine of Rs.1,000/- in default to suffer rigorous

imprisonment for 2 months.

This appeal was admitted by this Court on 25.02.2003

and on the said day, this Court granted bail to the appellant.

2 apeal52.03.odt

2. This appeal was taken up for final hearing on

19.07.2017. Counsel for the appellant was absent. Since the

appeal is old and was pending for more than 10 years, this Court

proceeded with the hearing with the assistance of the learned

A.P.P. In order to give one chance to the appellant and his

counsel, the matter was kept part heard on 20.07.2017. However,

nobody appeared on behalf of the appellant.

3. A charge was framed against the appellant in Sessions

Case No.576/2001 that the appellant and co-accused Ganpat

Marbate on 13.05.2001 at about 3.15 to 4.00 p.m. with common

intention robbed Sevakram Thakare (PW2) and snatched Rs.100/-

from him and while committing the robbery they used deadly

weapon, knife to cause grievous injury to Sevakram and thereby

they committed an offence under Section 397 read with Section 34

of the IPC.

4. An FIR was lodged by Gunvant Thakare (PW1) son of

the injured on 14.05.2001, it is at Exh.-45. As per the said report,

the injured Sevakram is in service of the MSEB at Khaparkheda

and resides at village Suradevi. The first informant works for

3 apeal52.03.odt

Sanchayani company at Buldhana and he used to visit his house

once in a month.

As per the FIR on 13.05.2001 at 6.30 in the evening

when he came to his house at Suradevi from Buldhana, his mother

Rajasbai informed him that on 13.05.2001 at about 3.15 p.m.

when his father started from his house for attending his duty,

three unknown persons obstructed him beyond river Kolar and

made a demand of money on the point of knife and on non

payment of money, his father was given a beating by those three

persons. His father received injuries on abdomen and is admitted

in the hospital of Dr. Ratan Roy at Kamptee. On getting such an

information, the first informant reached to the hospital.

Thereafter, he went to the spot of occurrence and made an

inquiry and he came to know that the spot of occurrence is within

the jurisdiction of Police Station Khaparkheda. Therefore, he went

to Police Station Khaparkheda and lodged a report.

5. At the time of lodging of the report, Gajanan

Ramchandra Kankale (PW13) was working as Police Sub Inspector

in Police Station, Khaparkheda. He investigated Crime

No.63/2001. He recorded statement of the injured on 14.05.2001.

4 apeal52.03.odt

he gave a requisition Exh.-17 to Dr. Roy Hospital at Kamptee for

injury certificate. Dildar, another son of the injured brought the

clothes of the injured to Police Station. Those were seized under

the seizure panchanama Exh.-50. On 16.05.2001, he recorded the

statement of Rajasbai Thakare. Also supplementary statement of

complainant and one Indubai Virkhare. On the basis of the

statements of the witnesses, the Investigating Officer got lead

about the culpability of the crime by the present appellant and

therefore on 25.05.2001, he arrested the appellant under the

arrest panchanama Exh.-41.

6. When the appellant was in Police Custody Remand on

27.05.2001, he made discovery statement in presence of panchas

vide Exh.-71 and agreed to show the place where he has concealed

the weapon. Accordingly, the police party was led by the

appellant to a hut where one Krishnaji Bhoyar was staying. He

went inside the said hut and took a knife from a big iron box and

also a note of Rs.100/-. Those were seized under recovery

panchanam Exh.-72. The clothes of the appellant were seized

under seizure panchanama Exh.-55. He also arrested co accused

Ganpat and Chandrashekhar, a juvenile.

                                                5                     apeal52.03.odt

 7.             On     31.05.2001,   PSI   Gajanan   Kankale   gave   a

requisition to the Executive Magistrate for holding test

identification parade. Accordingly, the test identification parade

was held in which the appellant was identified by the injured as an

assailant. He also received the injury certificate from Dr. Roy

Hospital, Kamptee. After completion of further usual investigation,

charge-sheet was presented.

8. After appreciation of the prosecution case, the learned

Judge of the Court below acquitted the co-accused Ganpat and

though the appellant was charged for the offence under Section

397 IPC, he recorded conviction for the lesser offence i.e. for the

offence under Section 394 of the IPC.

9. I have heard Mr. N. B. Jawade, learned A.P.P. for the

respondent in extenso. He took me through the entire evidence

led by the prosecution in detail.

10. Though the prosecution has examined in all 13

witnesses, the entire case of the prosecution revolves around the

evidence of Sevakram (PW2), Dr. Ratan Roy (PW12) in whose

6 apeal52.03.odt

hospital the appellant was admitted and he proved the injury

certificate Exh.-65, Bharatlal Samune (PW10) is a witness on the

test identification parade and Gajanan Nishankar (PW5) is

Executive Magistrate who has conducted the test identification

parade. The pancha witnesses have turned hostile.

11. The evidence of Dr. Ratan Rai shows that the injured

Sevakram Thakare, resident of Suradevi was admitted in his

hospital. Dr. Roy is a practicing surgeon having Dr. Roy Surgical

Home at Kamptee. He examined Sevakram to notice the following

injuries:

"1. Stab wound, aged sharp, clean margins and fresh bleeding was there. 2 inch X ½ inch X plural cavity deep on right 7th inter costal space.

2.1) Incised wound, right lower loge of lung abotu 3 cm. X 1 cm.

2) On right wall of pericordium, incise wound of ½ cm X ½ cm.

3) Incise wound of 2 inches X ½ inches on right domb of diaphragm.

4) Incise wound 3 inches X ½ inches over superior posterior aspect of right lobe of liver."

He issued injury certificate Exh.-65. As per the evidence

of Dr. Roy, the injuries were not only grievous in nature but those

7 apeal52.03.odt

were dangers to life. There is no cross-examination of Dr. Roy at

the hands of the learned cross-examiner to disbelieve his version

that the injuries were not grievous or were not dangerous.

12. Section 397 of the IPC deals with robbery or dacoity

with an attempt to cause death or grievous hurt. In my view, the

learned Judge of the Court below has committed mistake in not

brining the case for the offence punishable under Section 397 of

the IPC on the premise of Section 320 IPC which gives the

definition. According to the learned Judge of the Court below, the

injured was admitted only for a period of 15 days and Section 320

of the IPC speaks the admission of injured for a period of 20 days.

Section 320 reads as under:

"320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--

(First) -- Emasculation.

(Secondly) --Permanent privation of the sight of either eye. (Thirdly) -- Permanent privation of the hearing of either ear. (Fourthly) --Privation of any member or joint. (Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.

(Sixthly) -- Permanent disfiguration of the head or face. (Seventhly) --Fracture or dislocation of a bone or tooth. (Eighthly) --Any hurt which endangers life or which causes

8 apeal52.03.odt

the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

Thus, in the eighth part, there are the words, "Any hurt

which endangers life."

13. There is a concrete evidence available on record in the

form of the evidence of Dr. Roy that the injuries were dangerous

to life. Therefore, though there is no appeal from the State, by

exercising my powers under Section 386 of the Cr. P. C., I set aside

those observations made by the learned Judge in the impugned

judgment.

14. Consequently, now whether the prosecution has proved

that it is the appellant alone who is responsible for the grievous

injuries appearing on the person of the injured.

15. The learned A.P.P. Mr. Jawade heavily relied on the

testimony of Sevakram (PW2).

First informant is not an eye witness nor the injured has

disclosed the incident to him.

                                               9                     apeal52.03.odt

 16.            The   injured   Sevakram   is   examined   as   PW2.     His

evidence shows that he was serving at MSEB, Khaparkheda and he

is resident of Suradevi and in the month of May, 2001 at about

3.30 p.m. he was going to Khaparkheda on his bicycle to attend

his duties. When he reached near Kolar river, 3 persons stopped

him and started assaulting him. They demanded money from him.

He was not having any money. Therefore they searched his

pockets. He further deposed that one of them thereafter took out

a knife and gave a blow on his abdomen resulted into bleeding.

His version is duly corroborated by the medical evidence. It is

further evidence of Sevakram that there were Rs.100/- in his

pocket. They took the said amount. He then tied one scarf and

reached to Khaparkheda MSEB premises. There he went to the

hospital of MSEB. Thereafter he was referred to hospital at

Kamptee where he became unconscious. As per his evidence he

was an indoor patient for about 15 days.

17. As per the evidence of the injured Sevakram, after one

month of the incident he was taken to Central Jail for test

identification parade. That test identification parade was held by

Gajanan Nishankar (PW5) the Executive Magistrate in presence of

10 apeal52.03.odt

pancha Bharatlal (PW10). Test identification parade was held on

16.06.2001 at 11.30 a.m. Exh.-47 is identification memorandum

panchanama, which shows that during the test identification

parade, the present appellant was identified by the injured.

18. In the backdrop of the test identification parade in

which the appellant was identified by the injured, the Court will

have to scrutinize the evidence of the injured as to whether at the

time of assault on him there was an ample opportunity to the

injured to see the assailant closely to recognize the assailant at the

subsequent stage.

19. The evidence of injured Sevakram Thakare nowhere

claims in his evidence that he was knowing the appellant

previously. His evidence also does not show that at the time of

incident, he watched the appellant carefully. In the cross-

examination Sevakram has stated as under:

"I had seen the two of the appellants properly and there mouths were covered by handkerchief. I had only seen their eyes of those two persons whose faces were covered by handkerchief."

11 apeal52.03.odt

From his aforesaid evidence it is clear that the faces of

the appellant were covered with handkerchief and only their eyes

were visible. In his evidence he has not stated that the eyes of the

assailant were remarkably distinct by which he could remember

the person only by noticing the eyes. Further, he has admitted

that at the time of the test identification parade, no handkerchief

was put on the person who were standing on the road. In the

absence of any special reason, it would be very difficult to accept

the version of the injured which he has made in the cross

examination that he identified the appellant Ramchandra only

seeing his eyes coupled with the fact that during the recording of

the identification panchanama he did not state the Executive

Magistrate that he could identify the appellant by seeing his eyes.

Except this piece of evidence there is no other connecting piece of

evidence pointing finger of guilt against the appellant. Though the

clothes of the appellant and the weapon were seized, the learned

A.P.P. fairly states that from the record it is clear that it were not

sent to the Chemical Analyzer. Therefore there is no CA report

available on record.

12 apeal52.03.odt

20. In view of the aforesaid, though the prosecution has

proved that Sevakram (PW2) received grievous injures on his

person, there is no evidence to point out that it is only the

appellant who could be attributed the authorship of the injures

found on the persons of the injured Sevakram.

With the result, following order is passed:

ORDER

(i) Criminal Appeal No.52/2003 is allowed.

(ii) The judgment and order dated 16.12.2002 passed by 1st Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No.576/2001, thereby convicting the appellant for an offence punishable under Section 394 of the Indian Penal Code is quashed and set aside.

(iii) The appellant is acquitted of the offence punishable under Section 394 of the Indian Penal Code.

(iv) Bail Bond of the appellant stands cancelled.

(v) Muddemal property be dealt with as directed by the trial Court after the appeal period is over.

JUDGE

kahale