Shri Harikesh Rajpat Yadao And 2 ... vs State Of Mah.Thr.Pso Nagpur
2017 Latest Caselaw 2630 Bom

              apeal705.04.odt                                                                                     1/8

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

                                              CRIMINAL APPEAL NO.705 OF 2004

               APPELLANTS:                                1. Shri Harikesh s/o Rajpat Yadao, Aged
                                                             about - 30 years, Occu - Pvt. Job,
                                                          2. Shri Manoj s/o Ramayan Yadao, Aged
                                                             about - 32 years, Occu - Pvt. Job,
                                                          3. Shri   Arvind   Ramayan   Yadao,   Aged
                                                             about - 27 years, Occu - Pvt. Job,
                                                          All are R/o Amarnagar, Ward no.2, P.
                                                          S. M. I. D. C. Nagpur.
                                                                                                               
                                                                -VERSUS-

               RESPONDENT:                                State   of   Maharashtra   through   Police
                                                          Station   Officer,   Police   Station
                                                          M.I.D.C., Nagpur.
                                                                                                                                 

              Shri Bhagwani, Advocate for the appellants.
              Shri N. Patil, Additional Public Prosecutor for the respondent.
              ----------------------------------------------------------------------------------------------------
                                                                            CORAM: A.S. CHANDURKAR, J.

DATED : 25 MAY, 2017.

th

ORAL JUDGMENT :

1. This appeal filed under Section 374 of the Code of

Criminal Procedure, 1973 takes exception to the judgment dated

16-10-2004 in Sessions Trial No.701 of 2001 whereby the

appellants have been convicted for the offence punishable under

Section 307 read with Section 34 of the Indian Penal Code. They

have been sentenced to suffer five years Rigorous Imprisonment

and pay a fine of Rs.1000/- each.

apeal705.04.odt 2/8

2. According to the prosecution, on 13-4-2001, a quarrel

had taken place between one Dinesh Ram and the appellants. On

the next day at about 11.15 p.m., Dinesh Ram and one Munshi

Ram were in their house. The appellants gave a call to Dinesh

Ram. The appellant no.3 Arvind abused Dinesh Ram resulting in a

scuffle. Munshi Ram intervened in the quarrel so as to separate

them. The appellant no.2 Manoj also came to the spot. Appellant

Nos.2 & 3 were armed with a knife and they inflicted stab injuries

on the body of Dinesh Ram. Munshi Ram was also injured in the

process. The injured were then taken for treatment. On the next

day, the report of Umesh - complainant was taken and the offence

came to be registered. After completion of investigation, the

charge sheet came to be filed. At the conclusion of the trial, the

appellants were convicted in the manner stated herein above.

Being aggrieved, the present appeal has been filed.

3. Shri C. F. Bhagwani, learned Counsel for the

appellants submitted that the prosecution had failed to prove its

case beyond reasonable doubt. He submitted that there were

various inconsistencies in the case of prosecution. PW-1 Maroti

Meshram had submitted that he had first informed the police while

the report was lodged on the basis of the statement of PW-3

Umesh. The version given by both these persons were different.

apeal705.04.odt 3/8

He submitted that the appellant nos.2 & 3 had also sustained

injuries as deposed by PW-12, the Medical Officer. The manner in

which the said appellants sustained injuries was not brought on

record. He then submitted that the seizure of the alleged weapon

of assault had not been proved nor was the recovery on

memorandum under Section 27 of the Indian Evidence Act proved.

He referred to the deposition of the Medical Officer at PW-13 who

had examined the victims Dinesh Ram and Munshi Ram and he

had admitted that both of them suffered simple injuries. Neither

was the intention on the part of the accused persons proved nor

were the alleged injuries of such nature that was likely to cause

death. He, therefore, submitted that the ingredients of Section

307 of the Penal Code were not satisfied. Even the report of the

Chemical Analysis did not indicate blood stains on the seized

weapon. Considering the aforesaid position on record, it was

submitted that the appellants are entitled for acquittal.

4. Per contra, Shri N. Patil, learned Additional Public

Prosecutor supported the judgment of the trial Court. He

submitted that the motive on the part of the appellants had been

brought on record and the injuries suffered by the victims at the

instance of the appellants had also been satisfactorily brought on

record. The incident that occurred on the previous day of the

apeal705.04.odt 4/8

assault was also duly brought on record. Considering the nature of

injuries suffered by the victims, the appellants were rightly

charged for having committed offence punishable under Section

307 of the Penal Code. It was, therefore, submitted that in the

light of the entire material on record, the trial Court rightly

convicted the appellants and, therefore, no interference is called

for.

5 With the assistance of learned counsel for the parties, I

have perused the records of the case and I have given due

consideration to their respective submissions.

6 The prosecution has examined P.W. 1 Maroti

Meshram, at Exh. 15. According to this witness, at about 10 pm

on 14.4.2001, when he was sleeping at his house, the accused no.

3 had knocked the door after which he was told by accused no. 3

that he had a quarrel with his neighbours. When he went near the

site, he saw that Dinesh Ram and Munshi Ram were lying in an

injured condition. In his cross examination, he stated that he had

not seen any injuries on the person of accused no.3. He stated that

he had first given information to the police authorities. The

prosecution examined Umesh Ram as P.W. 3, at Exh. 25. He is the

brother of one of the victims Dinesh Ram. In his deposition, he

stated that he had lodged report with the police at Exh. 26. As per

apeal705.04.odt 5/8

his report at Exh. 26, the accused no.1 suspected that his wife was

having illicit relationship with Dinesh Ram. He had not witnessed

the assault as he had concealed himself and he returned only after

the incident. He stated that he did not know as to how the injuries

were inflicted on Dinesh Ram and Munshi Ram. In his cross

examination, he stated that the incident had occurred between 7

to 7.30 pm. He denied that the appellants were injured in the

incident. Dinesh Ram has been examined as P.W. 4, at Exh. 28.

According to this witness, accused no. 2 had asked him on the

previous day as to whether he had given Rs. 1,000/- to him which

was denied. He has stated that to be the reason of quarrel. He

admitted that he could not identify the knife with which he was

assaulted. In his cross examination, he has stated that it was he

who had given a call to the accused no.1. He was also not aware

whether the accused had sustained injuries. The other victim

Munshi Ram has been examined as P.W. 5, below Exh. 29. This

witness could not identify the knife with which he was assaulted.

According to him, the accused no.1 had given a call to Dinesh

Ram. He has also admitted that none of the accused had injuries

and that no neighbour had come to the spot of the incident.

7 The witnesses examined as P.W. 6 and P.W. 7 are

panch witnesses in whose presence the memorandum under

apeal705.04.odt 6/8

Section 27 of the Indian Evidence Act came to be recorded. Both

these witnesses however, did not support the prosecution.

Similarly, P.W. 8 and 9 who were panch witnesses on seizure of

the clothes also did not support the case of the prosecution. The

Investigating Officer was examined as P.W. 11 and according to

him all the accused were present at the spot of the incident when

he came there. He had in fact sent the accused no. 3 for medical

treatment. The doctors have been examined as P.W. 12 and 13.

They had examined the victims as well as accused. It is testified by

P.W. 13 that both the victims sustained simple injuries.

8 For the purposes of attracting the provisions of Section

307 of the Penal Code, there has to be an intention or knowledge

while doing an act that such act can cause death. From the

material on record gathered by the prosecution, the intention on

the part of the accused to cause death of the victims does not

appear to have been made out. While P.W. 3 Umesh who is the

first informant has referred to the illicit relations between the wife

of accused no.1 and Dinesh Ram, Dinesh Ram has referred to

borrowing a sum of Rs. 1,000/- from accused no. 2. Thus, the

basis / reason for the dispute between the parties has not been

brought on record. Another aspect to be noted is that according to

P.W. 4, the accused no.1 was inside his house after which he was

apeal705.04.odt 7/8

called outside. According to both the victims, accused No.1

Harikesh did not give any blow to them. From the aforesaid

material, therefore, the intention on the part of the accused to

cause such injuries to the victims does not appear to have been

made out.

9 There is also a doubt created with regard to the use of

the knife with which they were assaulted. Both the victims P.W. 4

and 5 have not identified the knife with which they were

assaulted. As per the report of the Chemical Analyzer at Exh. 18,

the dagger and knife seized by the prosecution did not have any

blood stains. Further, the seizure of the weapons on memorandum

under Section 27 of the Evidence Act has not been proved as both

the panch witnesses have not supported the case of the

prosecution. There is also a disparity in the blood groups of the

victims and the bloodstains found on their clothes. Similarly, the

blood samples sent for chemical analysis also did not match with

the blood found on the clothes of the victims.

10 From the deposition of P.W.12, it can be seen that

accused nos. 1 and 2 had suffered injuries. This fact is also stated

by Investigating Officer. However, neither the victims nor the

other witnesses examined have stated that the accused were

injured in the said incident. Their arrest forms are also silent in

apeal705.04.odt 8/8

that regard. The manner in which the accused Nos. 1 and 2

sustained injuries has remained under doubt. If the victims as well

as the accused nos. 1 and 2 had suffered injuries, there had to be

credible evidence to indicate as to who were the aggressors.

11 Thus, from the entire material collected by the

prosecution, it can not be said that it has proved its case under

Section 307 of the Indian Penal Code beyond reasonable doubt.

The case of the prosecution with regard to intention of the

accused, weapons used in the alleged attack, seizure of the

weapons and the clothes as well as the subsequent chemical

analysis do not lead to the only conclusion that the accused alone

were guilty of having committed the offence in question. The

appellants are therefore, entitled to benefit of doubt and

consequently for acquittal.

In the result, the appeal succeeds. Judgment dated

16.10.2004 in Sessions Trial No. 701/2001 is quashed and set

aside. The appellants are acquitted by granting them benefit of

doubt.

JUDGE

//MULEY//