Chandrakant S/O Nanaji Shingade ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 3411 Bom

                                                    1                     apeal281.15.odt

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

                       CRIMINAL APPEAL NO.281/2015

 1. Chandrakant s/o Nanaji Shingade,
    aged about 37 years, Occ. Labour.

 2. Nanaji s/o Hagru Shingade,
    aged about 61 years, Occ. Labour,

 3. Suryakant s/o Nanaji Shingade,
    aged about 31 years, Occ. Labour.

      All r/o Bagaon, Tq. Amgaon,
      Dist. Gondia.
      (At present in Central Prison,
      Nagpur.)                                               .....APPELLANTS

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

      State of Maharashtra, through
      Police Station Officer, Amgaon, 
      Tq. Amgaon, Dist. Gondia.                               ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. C. B. Dharmadhikari, Advocate for appellants.
 Ms T. Udeshi, A.P.P. for respondent. 
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 21.06.2017

ORAL JUDGMENT

1. By the present appeal, the appellants are questioning

the correctness of their conviction and sentence imposed upon

them by the learned Sessions Judge, Gondia dated 31.07.2015 in

Sessions Trial No.54/2012 by which the learned Sessions Judge

convicted the appellants for the offence punishable under Section

2 apeal281.15.odt

307 read with Section 34 of the IPC and directed that they shall

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

Rs.1,000/- in default to undergo simple imprisonment for one

month.

2. I have heard Mr. C. B. Dharmadhikari, learned counsel

for the appellants and Ms T. Udeshi, learned A.P.P. for the State.

With their able assistance, I have perused the record and

proceedings as well as the notes of evidence.

3. The date of incident is 30.08.2011. The criminal law

was set into motion by Chandrakala Kanoje (PW1) who is the wife

of injured. She lodged a report on 01.09.2011 at Police Station,

Amgaon. On the basis of the said, CR No. 85/2011 was registered

against the present appellants for the offence punishable under

Section 307 read with Section 34 of the IPC. The FIR states that

on 30.08.2011 at 8 O'clock in the morning there was a quarrel

with appellant no.3-Suryakant in respect of the illicit liquor. The

said quarrel was pacified by one Deshmukh Nagbhide. Thereafter,

she and her husband-the injured Subhash Kanoje (PW3) returned

to their house. The FIR further proceeds to state that at 4 O' clock,

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appellant no.3-Suryakant again came to their house and started

abusing. The said fact was again reported by the injured Subhash

to the President of the Dispute Resolution Committee. On that,

the said President informed her husband that he will give an

understanding to him. Thereafter the injured returned to his

house. At 7 O'clock in the evening, appellant no.3-Suryakant

again came in front of her house and started abusing Subhash

(PW3). Therefore, the first informant and the injured came out of

their house to pacify him. At that time, the appellants Suryakant

and Nanaji caught hold of Subhash appellant no.1-Chandrakant

gave knife blow to him. After giving the knife blows, the

appellants ran away from the spot. Thereafter, the first informant

brought towel from her house and it was tied on his stomach. The

injured was unconscious. He was taken to the Government

hospital at Amgaon for treatment. After giving first aid, he was

referred to KTS Hospital, Gondia. Since Subhash was having

grave injuries, he was admitted at Bajaj Hospital, Gondia.

4. After registration of the crime, the investigation was

taken up by Vasant Sapre (PW9) who, at the relevant time was

Police Sub Inspector at Police Station, Amgaon. During the course

4 apeal281.15.odt

of the investigation, he made visit to the spot of incident and spot

panchanama was drawn by him in presence of panchas. The spot

was shown by Chandrakala (PW1). The Panchanama of the spot

of occurrence is at Exh.-52. In the night of the same day, the

accused/appellants were arrested.

During the course of interrogation, appellant no.1

made his disclosure statement in presence of pancha witness

Baliram (PW4) and that led to the recovery of scissors and clothes

which were on his person at the time of incident. Similarly, the

clothes were also seized at the behest of original accused no.2-

Nanaji on his memorandum statement recorded in presence of

Subodh (PW5). He has also recorded statements of witnesses and

he also seized clothes of the injured under seizure memo Exh.-37.

Muddemal articles were sent to the chemical analyzer for analysis.

After completing the other usual investigations, final report was

presented in the court of learned Magistrate to pass the order of

committal and thereafter the case was registered as Sessions Case

No.54/2012. The charge was framed against the accused persons

under Exh.-11 for the offence punishable under Section 307 read

with Section 34 of the IPC. All the accused persons abjured their

guilt and claimed for their trial.

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5. In order order to bring home the guilt of the accused

persons, the prosecution has examined in all 9 witnesses and also

relied on various documents which were proved during the course

of trial. After appreciation of the prosecution case, the learned

Judge delivered the impugned judgment and imposed the

sentence upon the appellants after recording their conviction.

Hence, this appeal.

6. Mr. Dharmadhikari, learned counsel for the appellants,

submitted that the evidence brought on record by the prosecution

is not trustworthy. He further submitted that there are omissions

in the testimony of Chandrakala (PW1) and Subhash (PW3). He

also submitted that they are the interested witnesses and therefore

their evidence needs to be discarded. He also submitted that

Navtu Bhimte (PW2) the eye witness has failed to support the

prosecution case and therefore there is no independent version to

corroborate the interested version. He also submitted that in the

FIR, the first informant has stated that her husband was attacked

by means of knife whereas Subhash the injured stated in his

evidence that he was attacked by means of Gupti whereas the

6 apeal281.15.odt

weapon that is produced before the Court is scissors. Therefore,

there is variance as to which was the weapon that was used in the

assault and therefore the appellants are entitled to the benefit of

doubt. He also pointed out that the weapon identification

panchanamas is a farce inasmuch as the same is recorded on

07.09.2011. To fortify his point, he has invited my attention to

the cross-examination of the injured in which he has stated that

after 15 days from his discharge, he was called at police station

and there the identification took place. He further invited my

attention to the evidence of Dr. Prashant Meshram (PW8) to point

out that from his evidence, it is clear that the injured was

discharged from the hospital on 09.09.2011. Therefore, the

document, which is coming on record in respect of the

identification panchanama which is drawn on 07.09.2010 is a

farcical one. Lastly, he submitted that the appellants have

exercised their right of private defence and therefore conviction

under Section 307 of the Cr.P.C. is required to be set aside.

7. Per contra, Ms Udeshi, learned A.P.P. for the State

submitted that the prosecution has proved its case beyond

reasonable doubt. She submitted that the discrepancy as pointed

7 apeal281.15.odt

out by the learned counsel for the appellants are minor in nature

and much importance cannot be attached to the same. She also

submitted that the omissions which are sought to be proved are

minor in nature and they do not touch the core of the prosecution

case. She also submitted that the Chemical Analyzer's report Exh.-

58 clinchingly shows the finger of guilt towards the appellants

inasmuch as the clothes of the appellant nos.1 and 2 are stained

with human blood having blood group "O" which is established as

blood group of the injured. So also, the scissors, the weapon was

also having blood of group "O". Therefore, she submitted that the

appeal be dismissed.

8. There is no dispute that after the incident of attack, the

injured was taken to the hospital. Dr. Prashant Meshram (PW8)

was attached with Central Hospital, Gondia as Consultant

Surgeon. His evidence shows that on 30.08.2011, Subhash was

admitted to the hospital for treatment and he was under the

treatment of Dr. Prashant Meshram. From his evidence, it is clear

that on 01.09.2011, the Investigating Officer gave a requisition

Exh.-44 to give his opinion about the health of the injured since

the police authorities were intending to record the statement of

8 apeal281.15.odt

the injured. Exh.-45 is proved by Dr. Meshram to certify that the

injured is in a condition to speak.

As per his evidence, Subhash was admitted to the

hospital for treatment of penetrating injury to his chest and

abdomen. On being examined, Dr. Meshram noticed the following

external injuries.

        "(i)           CLW   over   left   intraclavicular   region
        admeasuring 4 X 2 X 1 cm.
        (ii)           CLW   over   left   sixth   inter   coastal   space
        admeasuring 4 X 2 X 1 cm.
        (iii)          CLW over left lumber region admeasuring 3
        X 2 X 1 cm.
        (iv)           CLW over epigastrium admeasuring 2 X 1 X
        1 cm."

He also noticed the following internal injuries:

"(i) Gastric perforation, admeasuring 2 X 2 cm. on posterior wall.

        (ii)           Multiple jejunal perforation.
        (iii)          Left thorax penetrating injury with injury to
        left lung." 

In unequivocal terms. Dr. Meshram testifies before the

Court that all the injuries suffered by Subhash were grievous in

nature and were caused by sharp penetrating object. According to

the Doctor, these injuries were sufficient to cause death of the

9 apeal281.15.odt

patient. He proved the injury report Exh.-46. The cross-

examination of this doctor, insofar as the injuries are concerned,

shows that the evidence is not shaken at all and defence was

unable to show anything by which it could be said that the nature

of injuries were not grievous. Looking to Exh.-46, the injury report

as well as the evidence of Dr. Meshram, there cannot be any doubt

that Subhash the injured suffered grievous injuries on his person.

The appellants are before this court since according to

them the prosecution was not able to prove their guilt beyond

reasonable doubt. According to the appellants, there is an element

of doubt in the prosecution case and therefore its benefit should be

extended to them.

9. In order to show the culpability of the appellants in the

crime, the prosecution has examined three witnesses.

Chandrakala (PW1), Navtu (PW2) and Subhash (PW3). Subhash

(PW3) testifies before the Court the reason for attack on him by

the appellants. It is also corroborated by Chandrakala (PW1) and

it is also referred in the FIR. From the evidence of these two

prosecution witnesses, it is clear that the appellants used to do the

illegal business of liquor in their house causing nuisance to the

10 apeal281.15.odt

family of the injured and therefore there used to be quarrels in

between the two families. The matter was reported to the

President of the Dispute Resolution Committee who tried to pacify

the same. Even on the day of the incident in the morning such

thing happened and ultimately in the early hours of the night,

Subhash was assaulted.

In my view that proves the case of the prosecution

insofar as the motive part is concerned. There was a definite

reason for the appellants to make an assault due to their quarrel

with the family of the injured which was reported by the injured to

the Dispute Resolution Committee.

10. Insofar as the actual assault on the injured and

thereafter appellant no.1 giving blows of the weapon resulting into

grievous injury, the role which is attributed to the appellants by

injured Subhash (PW3) is also corroborated by Chandrakala

(PW1). The omissions which are tried to be pointed out to this

Court are not in respect of the role attributed to any of the

appellants. According to the learned counsel for the appellants,

the prosecution could not fix the spot of of incident. The FIR as

well as the evidence of Subhash show that on the road he was

11 apeal281.15.odt

assaulted. Exh.-52 is the spot panchanama. The said spot

panchanama is having sketch of the place of the incident. It

clearly shows that the spot whereat Subhash was attacked is the

middle of the road and the said road is surrounded on both sides

by the house. In that view of the matter, the submission on behalf

of the appellants that the prosecution failed to prove the place of

incident as to whether it is in front of the house of Navtu (PW2) or

in front of the house of the complainant himself, in my view,

cannot be of much importance for the reason that Subhash is a

rickshaw puller and Chandrakala is a labourer. That shows that

these two persons are rustic and it is quite possible that there may

be some discrepancy in giving exact place of the incident. If the

Courts give much importance to such a minor discrepancy then in

my view it will result in to miscarriage of justice. It is to be noted

that justice not only have to be done to the accused at the same

time victim is also entitled to get justice.

11. Navtu (PW2) is an independent witness. Though he

has also turned hostile, in my view, his entire testimony cannot be

said to be washed away. It is trite law that even the testimony of

such a hostile witness can be looked into to the extent it

12 apeal281.15.odt

corroborates the prosecution case and in fact the said aspect is no

res integra in view of the authoritative pronouncement in the

matter of Khajju alias Surendra Tiwari.vs.State of Madhya

Pradesh reported in AIR 1991 SC 1853.

Navtu (PW2) corroborates Chandrakala (PW1) and

Subhash (PW3) that their daughter was in his house and Subhash

came to his house to call his daughter that he was in front of his

house. There the appellant-Chandrakant came running, made him

fall and thereafter assaulted him with a weapon and ran away.

Thus, even from the testimony of Navtu (PW2) the role attributed

against the appellants is corroborated. This prosecution witness

Navtu (PW2) is not attributing any overt act to the appellant nos.

2 and 3. Similarly because he is not attributing any role to the

appellant nos. 2 and 3, that does not give any reason for the

appellants, especially the appellant no.1, that the entire case of the

prosecution is untrustworthy, especially when even Navtu

corroborates the overt act done by appellant no.1-Chandrakant.

12. The learned counsel for the appellant has invited my

attention to the reported case in Mr. Mohan Girdhar Singh ..vs..

The State of Maharashtra thr. Sr. Inspector of Police; reported

13 apeal281.15.odt

in 2007 Cri.L.J.3855 to point out that in view of inconsistencies

and discrepancies in the evidence of Chandrakala (PW1) and

Subhash (PW3), benefit of doubt should be extended to the

appellants. The facts in the said case are altogether different.

Further, the discrepancies which are tried to be pointed out to this

Court are very minor in nature and as observed earlier that much

importance cannot be attached to the said minor discrepancies.

13. The other submission of the learned counsel that the

identification panchanama is a farce, in my view, is having some

substance. The said panchanama is recorded on 07.09.2011.

However, from the evidence of Dr. Meshram (PW8), it is clear that

the patient was an indoor patient till 09.09.2011. However, only

because of that lacuna which in my view is on the part of the

Investigating Officer, justice cannot be denied to the victim

especially when Article 4-the scissors was shown to Subhash when

he was in the witness box. He identified the said weapon.

Identification of the weapon by him during the trial before the

Court is always on high pedestrian than the identification made by

him during the course of investigation before the Investigating

Officer.

14 apeal281.15.odt

14. The other submission of the learned counsel is that the

prosecution case shows three different types of weapons. In the

FIR, the first informant-Chandrakala states that her husband was

attacked by means of knife whereas during the course of evidence

Subhash shows that he was assaulted by a weapon like Gupti

whereas the weapon which was recovered at the behest of the

appellant no.1 and which according to the prosecution is the

weapon for assault is scissors. Therefore the learned counsel

submits that that particular benefit should also required to be

given in favour of the appellants.

15. The submission of the learned counsel for the

appellants, at the first blush, appears to be very attractive and

impressive. However, on closer scrutiny of the entire record, I

reject his submission. The time of incident is in the early hours of

night. The time of incident is after the sunset. Further, though

the spot panchanama shows that there is electric pole, there is

nothing on record that at the time of assault the street light was

turned on. Further, it is natural on the part of the injured at the

time of receiving the blows on his person to pay more attention to

15 apeal281.15.odt

the assailant rather than the weapon which was in his hand. He

specifically attributes the role to each of the appellants. His

evidence clearly shows that there is no exaggeration. Further,

when this weapon was sent for its examination to Dr. Ravi Shende

(PW7) by the Investigating Officer, he noticed that the weapon-

scissors admeasures 22.5 cm along with handle. Its blade is of

15.5 inch. The diagram of the said weapon is available on record

at Exh.-40. The query report shows that the scissors was not a

small scissors. It is a big one. Therefore, it is quite possible for the

injured and Chandrakala (PW1), the rustic witnesses, not to give

the correct name of the weapon. However, we cannot forget from

the diagram that it shows that the scissors is having a pointed

opening. Dr. Meshram in his evidence has noticed that the injuries

noticed by him during the medical examination of the injured

could be caused due to the sharp penetrating object. From the

diagram, it is clear that the weapon is a penetrating object.

Further, all the muddemal property was sent to the

chemical analyzer and the chemical analyzer's report is available

on record at Exh.-58. Exh.-59 is the CA report which determines

the blood group of the injured Subhash as blood group "O". Exh.-

58, CA report shows that the human blood of blood group "O" was

16 apeal281.15.odt

noticed on the weapon-scissors, shirt of the appellant no.1-

Chandrakant and shirt of appellant no.2-Nanaji. For these

incriminating circumstances, there is no explanation from the

appellants as to how the stains of blood having group "O" appear

on their clothes. A vague statement was made by the learned

counsel for the appellants that in view of the fact that the blood

group of the appellants are not determined and therefore it is

quite possible that their blood group may be "O". I am not

impressed with this submission; for the reason that for the first

time this particular submission is made at the appellate stage.

There is no foundation for the same during the course of the trial.

Further, an opportunity was also there for them to put forth their

explanation when this incriminating circumstance was put to them

in their statement under Section 313 Cr.P.C. However, no

explanation was offered. On the contrary, appellant no.1 has

given his written statement Exh.-65 in which it was his defence,

which is consonance with the line of cross-examination of injured

Subhash, that there was a scuffle in between him and Subhash and

in that scuffle, by the weapon which was in the hands of Subhash-

injured, he got himself injured.

17 apeal281.15.odt

16. Once it is noticed that the evidence of the injured

Subhash (PW3) is free from exaggerations and the minute scrutiny

of his evidence completely rules out the possibility of false

implication so also it is also corroborated by Chandrakala (PW1)

and Navtu (PW2) to the extent of giving blows by the weapon by

Chandrakant, I see no escape for Chandrakant from his conviction

under Section 307 of the IPC.

17. Insofar as appellant nos. 2 and 3 are concerned, they

are convicted with the aid of Section 34 of the IPC. To them, a

specific role is attributed by the injured and his wife that they

caught hold of the injured and due to which the injured was

unable to move and that facilitated the appellant no.1-

Chandrakant to give blow of the weapon which was in his hand.

Therefore, in my view, the conviction recorded against them under

Section 34 of the IPC is justified. In fact, the presence of appellant

no.2-Nanaji is also confirmed in view of the CA report where blood

of group "O" was noticed on his clothes. Though the CA report

absolves appellant no.3-Suryakant that by itself is not sufficient to

acquit him. The CA report is always in the nature of a

18 apeal281.15.odt

corroborative piece of evidence to substantiate the evidence which

has come on the record. The evidence of Chandrakala (PW1) and

Subhash (PW3) are consistent that appellant no.3-Suryakant

caught hold of Subhash and thereafter Subhash was attacked by

Chandrakant.

18. Nanaji is father of Chandrakant and Suryakant. Thus,

all the appellants are from the same family. They are in illegal

liquor business and that activity was obstructed. Quarrels were

picked up with the family of the injured that required the injured

to lodge a complaint with the President of the Dispute Resolution

Committee in the morning and in the noon session of the day. The

matter was reported to the Committee and in the evening there

occurred the actual incident of assault. That shows that all the

appellants were showing common intention and therefore they are

rightly convicted by the court below.

19. Though the learned counsel has pointed out the

reported decision in the case of Lalchand Cheddilal Yadav

..vs..State of Maharashtra; reported in 2000 (5) Bom.CR. 585,

to keep aside the CA report on the ground that at the time of

19 apeal281.15.odt

seizure of the weapon and clothes there is no mention that those

were sealed, there is nothing on record to show that there was any

reason on the part of the Investigating Officer to falsely implicate

the accused persons. Be that as it may. Once, the substantive

evidence available on record through Chandrakala (PW1) and

Subhash (PW3) about the actual assault by the appellants, much

importance cannot be attached to the procedural aspect of sealing

especially when the CA report shows that all the muddemal

articles were received in the CA's office in the sealed condition.

Therefore, I reject the said contention also.

20. The reappreciation of the entire prosecution case shows

involvement of the appellants and they are responsible for the

grievous injuries suffered by Subhash (PW3) and therefore they

are rightly convicted by the court below.

In the result, the appeal fails. The same is therefore

dismissed.

JUDGE

kahale