Bombay High Court
Ujwal Edward Paris vs The State Of Maharashtra on 22 June, 2017
Bench: A.M. Badar
206-APPEAL-953-2011-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.953 OF 2011
UJWAL EDWARD PARIS )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mrs.Nasreen Ayubi, Advocate for the Appellant.
Mr.P.H.Gaikwad-Patil, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 22nd JUNE 2017
ORAL JUDGMENT :
1 By this appeal, the appellant / convicted accused is
challenging the judgment and order dated 10 th July 2009 passed
by the learned Additional Sessions Judge, Greater Mumbai, in
Sessions Case No.263 of 2009 thereby convicting him of the
offence punishable under Section 326 of the Indian Penal Code
and sentencing him to suffer rigorous imprisonment for five years
and to pay fine of Rs.1,000/-, in default, to undergo simple
imprisonment for 1 month.
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2 Briefly stated, it is the case of the prosecution that the
appellant / accused and injured PW5 Vinod Yadav were friends.
The appellant / accused used to reside in the vicinity of the flour
mill where injured PW5 Vinod Yadav was working. The incident
allegedly took place on 31st December 2008 at about 4 p.m. in the
house located at Galli No.15, Shri Sai Dalit Seva Samiti, Andheri.
As the appellant / accused Ujwal Paris and injured PW5 Vinod
Yadav were friends, on that day, they indulged in a booze session.
During the course of drinking liquor, injured PW5 Vinod Yadav
questioned the appellant / accused Ujwal Paris as to why he had
beaten his parents prior to two or three days. Upon that, the
appellant / accused Ujwal Paris started quarreling with injured
Vinod Yadav. During the course of that quarrel, the appellant /
accused Ujwal Paris took one spade from the bathroom of the
house and gave blow thereof on head of injured PW5 Vinod Yadav.
Because of that blow, injured Vinod Yadav sustained bleeding
injury and he was taken to Cooper hospital by his brother.
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3 PW1 Sangeeta Wakure was neighbour of the
appellant / accused Ujwal Paris. On the basis of information
received from mother of the appellant / accused, she lodged
report Exhibit 8A of the incident with Police Station MIDC which
has resulted in registration of Crime No.807 of 2008 under
Section 307 of the Indian Penal Code against the appellant /
accused.
4 During the course of investigation, the Investigating
Officer inspected the spot of the incident which was house of the
appellant / accused. Spot panchnama was drawn. Clothes of
injured PW5 Vinod Yadav, so also that of the appellant / accused,
came to be seized. Weapon of the offence came to be seized.
Statement of witnesses were recorded and after routine
investigation, the appellant / accused was charge-sheeted for the
offence punishable under Section 307 of the Indian Penal Code.
5 In the course of trial, the prosecution has examined in
all seven witnesses. Informant Sangeeta Wakure is examined as
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PW1. Panch witnesses to seizure of the iron spade is examined as
PW2 . He is Kisan Babu Pawar. Panch witness to seizure of
clothes of the informant is examined as PW3. He is Raju Gautam.
Panch witness to seizure of clothes of the appellant / accused is
examined as PW4. He is Jitu Babu Singh. Injured Vinod Yadav is
examined as PW5. PW6 Dr.Saifullah is the Resident Medical
Officer of Cooper hospital where injured PW5 Vinod Yadav came
to be treated medically. PW7 Sarla Vasave, A.P.I. M.I.D.C. Police
Station, is the Investigating Officer.
6 The defence of the appellant / accused was that of
total denial. It was tried to be brought on record that in the booze
session, the injured fell down under influence of the liquor and
sustained head injury.
7 After hearing the parties, by the impugned judgment
and order, the learned trial court was pleased to acquit the
appellant / accused of the offence punishable under Section 307
of the Indian Penal Code by holding that the appellant / accused
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had not attempted to commit murder of PW5 Vinod Yadav.
However, he was convicted of the offence punishable under
Section 326 of the Indian Penal Code and came to be sentenced as
indicated in the opening paragraph of the judgment.
8 I have heard Ms.Nasreen Ayubi, the learned advocate
appearing for the appellant / accused. She vehemently argued
that evidence of PW5 Vinod Yadav goes to show that he along
with the appellant / accused had consumed lot of liquor on the
day of the incident and there was quarrel between them. With the
aid of material elicited from cross-examination of PW5 Vinod
Yadav, Ms.Nasreen Ayubi, the learned advocate appearing for the
appellant / accused argued that the appellant / accused cannot be
said to be the author of injuries suffered by the injured Vinod
Yadav. She further argued that panch witness PW2 Kisan Babu
Pawar has turned hostile and even the injured had not identified
the weapon of the offence. According to the learned advocate for
the appellant / accused, evidence of PW3 Raju Gautam cannot be
relied upon because he has admitted in cross-examination that he
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had signed one blank paper. This witness has also admitted that
the paper in which clothes of the injured were wrapped was not
produced before the court. With this, the learned advocate
submitted that the impugned judgment and order of conviction
cannot be sustained.
9 The learned APP supported the impugned judgment
and order of conviction of the appellant / accused for the offence
punishable under Section 326 of the Indian Penal Code.
10 I have carefully considered the rival submissions and
also perused record and proceedings including oral as well as
documentary evidence adduced by the prosecution. The appellant
/ accused has been convicted of the offence punishable under
Section 326 of the IPC for voluntarily causing grievous hurt to
PW5 Vinod Yadav by means of a dangerous weapon i.e. a spade.
The term "grievous hurt" is defined in Section 320 of the Indian
Penal Code and fracture or dislocation of a bone is included in the
terms "grievous hurt."
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11 PW5 Vinod Yadav is an injured witness. The case in
hand is that of a sole accused. After the incident of assault on
him, PW5 Vinod Yadav was admitted at Cooper hospital, Mumbai,
where PW6 Dr.Saifulla had treated him. As per version of PW6
Dr.Saifulla, upon medical examination of PW5 Vinod Yadav on 31 st
December 2008, he noticed the following injuries on head of PW5
Vinod Yadav :-
1. CLW admeasuring 8 x 6 cm on left occipital
area extending into the neck caused by sharp
object.
2. CLW admeasuring 3 x 1 cm 3 in number on
parietal area of skull caused by sharp object. Both
the injuries were fresh.
As seen from evidence of PW6 Dr.Saifulla, the injured was
subjected to City Scan and PW6 Dr.Saifulla deposed that after
perusal of the report of the City Scan, it was revealed that injured
PW5 Vinod Yadav had suffered fracture of right occipital bone
extending anteriorly to the right side mastoid. Evidence of PW6
Dr.Saifulla is duly corroborated by contemporaneous documentary
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evidence produced on record by the prosecution at Exhibit 17 and
Exhibit 18. The report of City Scan of bone of PW5 Vinod Yadav
reveals that he had suffered undisplaced fracture of the right
occipital bone. As such, the prosecution has established that
injured PW5 Vinod Yadav had suffered fracture injury to his head.
12 Now let us examine whether the prosecution has
established that it was the appellant / accused who was the author
of the fracture injury to head of PW5 Vinod Yadav. Injured PW5
Vinod Yadav has stated that while he and the appellant / accused
were drinking liquor, he questioned the appellant / accused as the
appellant / accused had earlier beaten his own parents. Upon
that, as seen from evidence of PW5 Vinod Yadav, the appellant /
accused started quarreling with him, took out a spade and gave
blow thereof on his head causing bleeding injury. There is
nothing in cross-examination of injured PW5 Vinod Yadav to
disbelieve his version. Suggestions that he suffered injury because
of his fall under intoxication is categorically denied by this
witness. As such, there is no reason to disbelieve version of the
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injured PW5 Vinod Yadav in respect of injuries suffered by him
and the author of the injury.
13 Evidence of Investigating Officer PW7 Sarla Vasave,
A.P.I., shows that she had seized the weapon of the offence by
preparing panchnama. No doubt, panch witness to this seizure
panchnama namely PW2 Kisan Babu Pawar has turned hostile, but
there is nothing in cross-examination of Investigating Officer to
doubt seizure of the spade from the spot by her. The seized spade
was duly identified by the injured while in the witness box.
Though the handle of the spade was found missing, nothing boils
on that.
14 Evidence of the Investigator shows that clothes of the
appellant / accused were seized on 1 st January 2009. PW4 Jitu
Babu Singh has also supported this seizure panchnama at Exhibit
40. There is no material on record to disbelieve this seizure.
Seized clothes, as seen from the evidence of the Investigator, were
subjected to chemical analysis. Chemical Analysis report at
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Exhibit 24 shows that seized clothes of appellant / accused were
stained with human blood. The C.A.Report at Exhibit 25 shows
that seized spade was having human blood of "A" group.
15 To conclude, evidence of the prosecution duly
establishes that it was the appellant / accused who assaulted the
injured PW5 Vinod Yadav and had caused grievous hurt to him.
Accordingly, he is rightly convicted of the offence punishable
under Section 326 of the Indian Penal Code. The learned trial
Judge has maintained proportionality in imposing the sentence.
As such, no infirmity can be found in the impugned judgment and
order.
16 In the result, the appeal fails and the same is
dismissed.
(A. M. BADAR, J.)
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