Madhav Anandrao Pawar vs State Of Maha
2017 Latest Caselaw 4939 Bom

                                     1                        APEAL218.2003

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
                      BENCH AT AURANGABAD.

                     CRIMINAL APPEAL NO. 218 OF 2003 

 Madhav S/o Anandrao Pawar,
 Aged 27 years, Occupation-Agriculturist,
 R/o. Ambala, Taluka Hadgaon,
 District Nanded.                                        ... Appellant

              VERSUS

 The State of Maharashtra                                ... Respondent

                                  ..........
      Mr V. S. Deshmukh, Advocate h/f Mr A. B. Kale, Advocate for the 
                                appellant
               Mrs M. A. Deshpande, APP for respondent/State
                                 .............


                                  CORAM  :  A. M. DHAVALE, J.

                                  DATE      :  24TH JULY, 2017.


 ORAL JUDGMENT: 

1. The accused from Sessions Case No. 42/2001,

prosecuted for offences u/s 307 and 324 of IPC and convicted for

offence u/s 324 of IPC and sentenced to suffer simple imprisonment

for six months and to pay fine of Rs. 2,000/-, in default to suffer

simple imprisonment for two months, has preferred this appeal

challenging the Judgment & Order dt. 18.02.2003, passed by

Sessions Judge, Nanded.

2 APEAL218.2003

2. As per the prosecution case, PW4-Poornima was residing at

Ambala, Tq. Hadgaon, Dist. Nanded and at the relevant time was

studying in XIth std. in a college at Hadgaon. On 30.01.2000, while

she was proceeding towards her new house at 4:30 pm, the accused

Madhav suddenly came there and abruptly inflicted a blow of knife

on her right thigh. She raised shouts. Her father was moving just

ahead of her. On hearing her shouts, he turned around. She had

received a bleeding injury. The accused fled away from the spot.

People gathered there and her father brought her to the hospital and

her FIR came to be lodged to that effect at 17:45 at Police Station,

Hadgaon for offences u/s 324 of IPC. The injured was taken to

Hadgaon Hospital. During investigation, spot panchanama was

drawn where blood spots and a blood stained knife were found.

Those were seized. Statements of material witnesses were recorded.

Blood stained Panjabi dress of the victim and one Baniyan, which was

used to stop the bleeding, were seized. The accused was arrested and

seized articles were sent to Chemical Analyzer and Chemical Analysis

reports were collected. The investigation revealed that, the accused

had one sided love affair with PW4-Poornima and he had written her

name on a public road near Rest House proceeding to Hadgaon. After

completion of investigation, the charge-sheet submitted in the Court

for offences u/s 324 & 307 of IPC. In due course, the case was

3 APEAL218.2003

committed to the Court of Sessions. The learned Sessions Judge

framed charge u/s 307 and in the alternative 324 of IPC at Exh. 9.

The accused pleaded not guilty. The prosecution examined seven

witnesses. It is defence of the accused that, PW4-Poornima sustained

injuries by fall. Her marriage was settled with the accused but

parents of the accused declined to accept her as daughter-in-law and

therefore she has falsely implicated him.

3. The learned Sessions Judge accepted the evidence but held

that it was sufficient to convict the accused only for offence u/s 324

of IPC, and hence, the accused was convicted u/s 324 of IPC and was

sentenced as referred above. Hence, this appeal.

4. Mr V. S. Deshmukh, learned advocate holding for Mr A. B.

Kale, counsel for the appellant, has taken me through the evidence

on record. He argued that the case about one sided love affair and

intimidation by the accused to PW4-Poornima was not substantiated

by lodging FIR. There are admissions to show that the accused got

married within eight days after the incident. The accused and PW4-

Poornima belong to the castes in which the marriages are common.

The weapon-knife used in commission of offence in question was not

shown to the witnesses and the discovery of knife is also doubtful and

hence the accused should be given benefit of doubt. Hence, the

appeal be allowed and the accused be acquitted.

4 APEAL218.2003

5. Per contra, Mrs M. A. Deshpande, learned APP for the State

submitted that evidence of PW4-Poornima is cogent, consistent,

trustworthy and reliable. It is well supported by father-PW1 and one

independent witness PW2-Uttam. The spot panchanama has been

duly proved. The medical evidence shows that the said injury is

possible by knife. The Sessions Judge has already taken into

consideration that the injury would not threaten the life and

therefore the accused has been acquitted of offence u/s 307 of IPC

and convicted u/s 324 of IPC only, and the sentence passed thereon

is based on reliable material and the same is proportionate to the

nature of offence & hence there is no necessity to interfere with the

same.

6. The points for my consideration with findings thereon are

as follows:

                                 Points                                     Findings
 (i)     Whether the accused has caused simple hurt to 
         PW4 by deadly weapon Knife?                                      Proved...

(ii) Whether any interference is necessary in the conviction or sentence? No..

 (iii) What order?                                                        The 
                                                                          Appeal is 
                                                                          dismissed.





                                         5                        APEAL218.2003



                                 :- REASONS -:

7. The prosecution has examined following witnesses :-

[1] PW1 - Narayan - Victim's father.

[2] PW2 - Uttam - who came to the spot immediately after hearing cries.

[3] PW3 - Suryabhan, Panch. He has deposed about a blood stained knife and blood stains found on the spot and proved spot panchanama Exh. 16. He has also proved seizure of clothes of Poornima (Exh.17).

[4] PW4 - Poornima, the victim girl.

[5] PW5- Dr. Lomte has proved Medical Certificate Exh. 23.

[6] PW6- Constable - Dnyaneshwar is a carrier.

[7] PW7- Head Constable-Latkar is the Investigating Officer. He proved letter to CA office Exh. 25 and CA reports Exh. 27 & 28.

8. PW4-Poornima deposed that, on 30.01.2000 at about 4:30

PM when she was proceeding along with her father from her old

house to new house, that time the accused was sitting on otta in front

of house of Sambhaji Pawar. Her father was few paces ahead and

she was following him. The accused suddenly came there and

inflicted a blow of knife on her right thigh. She raised shouts and as

6 APEAL218.2003

she had sustained bleeding injury, she became unconscious. Her

father came there immediately. The accused then fled away. In the

hospital, her statement was recorded which is treated as FIR (Exh.

20). Her evidence regarding this material incident is consistent with

her FIR, which was lodged within short time after the incident.

9. Earlier she had stated that, she noted that the accused had

written her name on a public road near the rest house. That time she

was studying in XIth std., while the accused was not taking

education. Her father had accosted the accused as to why he had

written her name on road. That time, the accused had threatened

her father that he would kill him and his daughter.

10. Evidence of PW1-Narayan, father of PW4-Poornima, is

consistent with the above evidence. He stated that, at the relevant

time, he was moving ahead and his daughter was following him.

There was distance of about 10 to 15 ft. between them. When they

reached near Sambha Pawar's house, the accused was sitting in front

of that house. When he was few paces ahead of his daughter, he

heard hue and cry of his daughter as 'Baba, Baba'. He immediately

turned around and saw that the accused had inflicted a blow of knife

on her right thigh. It is obvious that, PW4-Poornima must have raised

shouts only after receiving the knife blow and, therefore, evidence of

7 APEAL218.2003

PW1-Narayan that he saw the accused giving blow of knife cannot be

believed, but he has seen the accused with a knife on the spot. The

accused dropped the knife and fled away from the spot. His daughter

collapsed on the spot with bleeding injury and lost consciousness for

a while. He wrapped the injury with handkerchief and baniyan to

stop the bleeding. He found one car of his relative nearby and he

took his daughter in the said car to a hospital at Hadgaon.

Thereafter, her statement was recoded by police in the hospital. He

has also stated that the accused was resident of his village and he had

written his daughter's name on a public road. When he accosted the

accused for the same, that time he quarreled with him and

threatened of committing murder of him and his daughter. Since

there is no charge for this act of writing name of PW4 and giving

threats, this much part of the evidence is not significant except for

showing the motive. It was suggested to PW1-Narayan that marriage

of his daughter was settled with accused but parents of the accused

had not given consent to the marriage and the marriage of accused

was arranged with some other girl and therefore the accused has

been falsely implicated. All these suggestions are denied by PW1.

PW2-Uttam Pawar stated that he was residing near the spot and at

the material time he heard shouts of Poornima and he came out of

house. He saw that she had sustained bleeding injuries to her right

8 APEAL218.2003

thigh. He asked her as to what had happened. Then she told him

that the accused inflicted a blow of knife on her right thigh. He also

stated that her father was also standing there. He helped to stop the

bleeding by tying baniyan over injury and then she was sent to

Hospital.

11. PW5-Dr Lomte has deposed that, on 30.01.2000, Poornima

was brought to the Hospital at Hadgaon by police and her relatives.

On examination, he found one injury having size of 1.5 cm x 1 x 1 cm

on her right thigh caused by sharp edged weapon. It was elliptical in

shape. There was fresh bleeding. He described it as simple injury not

on vital part. He admitted that such injury was possible by accidental

fall on sharp edged iron rod. He further deposed that, the said

injury is not self-inflicted injury.

12. PW3-Suryabhan is a panch to the spot panchanama and

seizure of clothes at Exh. 17 & 18. He has deposed that, blood stains

were found on the spot and knife was also recovered from the spot.

The prosecution has proved Chemical Analysis reports through PW6

& PW7, however, knife was not shown to the injured witness and to

eye-witnesses PW4, PW1 & PW2. The identity of knife as a weapon

has not been proved through the evidence of PW4 or PW1.

9 APEAL218.2003

Therefore, the CA reports and evidence of PW6 is not material.

13. After carefully considering the arguments of both the sides,

I find that there are minor discrepancies in the evidence. The

weapon used in commission of offence i.e. knife was not shown to

the witnesses. The story regarding one sided love affair and writing

name of PW4-Poornima on a public road by the accused and

intimidation was not disclosed in the FIR. The accused himself got

married within eight days after the incident.

14. The learned trial Judge has found the evidence of PW4,

PW1 & PW2 trustworthy and reliable. The evidence shows that, the

incident took place in front of house of Sambhaji Pawar where there

was no such material on which PW4 could have fallen & sustained

injury. The injury is also possible by knife. I also find the evidence of

PW4-Poornima trustworthy and reliable. It is well supported by PW1

& PW2 whose evidence is also reliable. Their evidence is not

shaken in cross-examination.

15. Mere non-discovery of weapon is not material when the

evidence of injured and eye-witnesses is trustworthy and reliable. In

this regard, I rely on the judgment of the Hon'ble Supreme Court in

10 APEAL218.2003

the case of Himanshu Mohan Rai Versus State of Uttar Pradesh

and Another (2017) 4 SCC 161, wherein in para nos. 21 & 22 it is

held as under:

21. Apparently the police recovered a licensed gun from the accused Imran Afreen while he was boarding a train and the ballistic report showed that the licensed gun was not used for the killing. This means that the police did not recover the actual weapon used for the killing and the accused had ample time to dispose off the weapon. It is however not possible to reject the credible ocular evidence of the eyewitnesses who witnessed the shooting and who are found to be truthful.

22. It is possible that the prosecution may not recover the actual weapon in some cases. However, this cannot have the effect of discrediting reliable ocular testimony as we have here, that he accused shot and killed the deceased, particularly when the lead bullets have been recovered and are found belonging to a commonly used 7.65 mm calibre i.e. 32 bore weapon.

16. As far as the story regarding previous enmity in the form of

writing name of PW4 on the road and intimidation are concerned,

non-lodging of report at the Police Station is not significant. People

are always conscious and careful while reporting the matter in which

the reputation of their daughter is likely to be affected. I find that,

defence story regarding settlement of marriage between accused and

PW4 and non-acceptance of the same by father of the accused is not

even made probable. Mere fact that the accused himself got married

within eight days of the incident is not enough to accept the defence

story.

11 APEAL218.2003

17. I find that the learned trial Judge has rightly considered the

nature of injury which is caused by sharp edged weapon like knife.

The medical evidence is consistent with the ocular evidence. The

learned trial Judge has taken note of the fact that the injury was not

likely to cause death and, therefore, the accused has been rightly

acquitted under Section 307 of IPC. After carefully considering the

evidence on record, I find no reason to differ with the finding

recorded by the learned trial Judge that evidence of PW4 supported

by evidence of PW1 & PW2 is trustworthy and reliable for holding the

accused guilty for causing simple hurt. Therefore, there is no scope

for interference with the conviction awarded by the learned trial

Judge u/s 324 of the IPC. As far as the sentence is concerned, the

injury is not much grave, it is 1.5 cm x 1 x 1 cm. The accused had

inflicted blow only on account of one sided love affair. PW4 had

become unconscious and was hospitalized for one day.

18. Considering the facts, I find that the sentence is

proportionate to the gravity of the offence. The accused was, at the

relevant time, aged 25 years, hence there was no mandate for

consideration of his case under Probation of Offenders Act. The

attack was on a girl out of one sided love for no fault on her part.

12 APEAL218.2003

The facts don't indicate that the accused should be dealt with

leniently. I therefore find no reason to interfere with the conviction

and sentence imposed upon him. Thus, the appeal deserves to be

dismissed. Hence, the order.

ORDER

1. The appeal is dismissed.

2. The appellant-accused shall surrender before the learned Sessions Judge, Nanded within four weeks from today to undergo the sentence. If the appellant-accused does not surrender within the time stipulated, learned Sessions Judge, Nanded shall be at liberty to take action against him & his surety to secure his presence.

[ A. M. DHAVALE ] JUDGE

sgp