Vasanta Bhojraj Ghavghave vs State Of ...
2017 Latest Caselaw 8952 Bom

                                      1                      Apeal546-03.odt        



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

                    Criminal Appeal No.546 of 2003

                                              ...

Vasanta s/o Bhojraj Ghavghave,
Aged about 27 years,
Resident of Satefal,
Tahsil - Hinganghat,
District Wardha.                                  ..             APPELLANT



                               .. Versus ..


State of Maharashtra,
through Police Station Officer,
Hinganghat, Tah. Hinganghat,
District Wardha                                   ..          RESPONDENT


Shri R.M. Daga, Advocate for Appellant.
Smt. H.N. Prabhu, A.P.P. for Respondent-State.
                   ....

              CORAM : Kum. Indira Jain, J.

DATED : November 22, 2017.

ORAL JUDGMENT

1. This appeal is directed against the judgment and

order dated 22.08.2003 passed by the learned 2nd Additional

Sessions Judge, Wardha in Session Trial No.19 of 2001. By the

said judgment and order, accused is convicted of the offence

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punishable under Section 307 of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for five years with

fine of Rs.200/- in default rigorous imprisonment for one

month.

2. For the sake of convenience, appellant is referred in

his original status as an accused as was referred in the trial

Court.

3. Prosecution case in brief is as under:-

(A) Complainant Suresh Ghavaghave was a resident of

Satefal in district Wardha. Accused is also resident of the same

village. Incident occurred on 29.09.2000 at 10 a.m. during

Durga festival. According to prosecution, idol of Goddess

Durga was installed in front of the house of complainant. At

the relevant time he was standing in front of the door of his

house. He blocked the drain water coming from the drainage

of the accused near the place where idol of Goddess Durga was

installed as the water was about to enter the pendol. It is

contended that accused all of a sudden came from behind and

inflicted an axe blow on the head of Suresh. Within no time, he

inflicted another blow with an axe on his left thigh. Suresh

sustained bleeding injuries and being threatened rushed to the

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house of Sudhakar Mahadeorao Narad for shelter. Accused

followed him. He was, however, prevented from entering the

house of Sudhakar and then he returned back.

(B) Prakash Borkar was present at the time of incident.

The wife and mother of Suresh came to the house of Sudhakar

as they were informed about the incident. They saw Suresh

lying in injured condition. He was taken to Cottage Hospital,

Hinganghat for treatment. PW7 Dr. Nasim Akhatar Shakil

Ahemad examined Suresh and noticed lacerated wound over

left parietal region of scalp, profuse bleeding and lacerated

wound over frontal region extending from left side over

forehead upto lateral angle of eye. He also noticed lacerated

wound on thigh. Suresh was admitted to the Hospital. Police

Station Hinganghat was informed about medico legal case.

(C) Police Head Constable Pramod Deshpande (PW5)

visited the Hospital and after seeking medical opinion,

recorded statement of Suresh. He carried the statement to

Police Station. On the basis of the same, Crime No.353/2000

came to be registered against the accused for the offence

punishable under Section 307 of the Indian Penal Code.

Further investigation was taken over by P.S.I. Raut (PW4).

Investigating Officer visited the spot and recorded spot

panchanama. Accused was arrested and his blood sample was

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collected. The blood sample of complainant collected by

Medical Officer was received by the Investigating Officer. The

clothes of injured having blood stains were seized under a

seizure panchanama. Accused was in Police custody. That

time he made a memorandum to discover an axe and blood

stained clothes concealed in his house. Accordingly

memorandum of the accused was drawn in the presence of

panch witnesses and an axe and blood stained clothes were

recovered from his house on the information given by the

accused. Its recovery panchanama was drawn. During

investigation, statements of witnesses came to be recorded.

Seized muddemal was sent to Chemical Analyser. After

completion of investigation, charge-sheet was submitted to the

Court of Judicial Magistrate First Class, Hinganghat, who in turn

committed the case for trial to the Court of Session.

4. On committal, trial Court framed charge against the

accused vide Exh.9. He pleaded not guilty and claimed to be

tried. The defence of accused was of total denial and false

implication. He raised a specific defence that Suresh and his

father were prosecuted under Section 302 of the Indian Penal

Code in connection with the murder of one Govinda Dhole.

Suresh and one Shriram Masurkar were facing prosecution on

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the allegations of committing rape and murder of one Indubai

Darunkar and father of the accused was a witness for

prosecution in the said matter. According to the accused, due

to previous animosity he has been falsely involved in the

present case.

5. Prosecution examined in all seven witnesses to

support its case. Trial Court relied upon the evidence of PW1

injured Suresh, though disbelieved evidence of child witness

PW2 Seema daughter of PW1. It is stated by complainant

Suresh that on the day of incident i.e. 29.09.2000 at about 10

a.m. he was present in front of the door of his house. The

evidence of Suresh shows that idol of Goddess Durga was

installed and near the pendol where idol was installed,

drainage water from the house of the accused was flowing

which could reach near the pendol. He, therefore, stopped the

flow of water and that time accused coming from behind, dealt

a blow of an axe on his head and second blow on his left thigh.

He stated that he rushed to the house of Sudhakar Narad.

Accused chased him upto the residence of Narad. Sudhakar

Narad scolded the accused and then he returned back. In the

cross-examination, some important admissions could be

elicited by the defence. He admits that when axe was seized

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and it was shown to Police, it was not got identified. He

admitted that he and his father have been prosecuted under

Section 302 of the Indian Penal Code on the allegations of

committing murder of Govinda Dhole. He also admits that he

and Shriram Masurkar were facing prosecution on the alleged

commission of rape and committing murder of Indubai

Darunkar. He further admits that father of accused was

examined as a prosecution witness in Indubai's case. Though

complainant denies that he had beaten brother of the accused

and, therefore, accused felt that he would beat him and so the

incident occurred contradiction in the statement recorded by

Executive Magistrate 'A' has been proved by the defence.

6. It can be revealed from the cross-examination of

complainant that there were blood stains on the spot of

incident and house of Sudhakar Narad. Spot panchanama

negatives the presence of blood stains on the spot. According

to complainant both the blows were dealt by sharp edged

portion of an axe.

7. The evidence of complainant is not corroborated by

the Investigating Officer. It is stated by PW4 S.D.P.O Raut that

injured Suresh did not give description of an axe. He states

7 Apeal546-03.odt

that near the house of Suresh, blood stains were not found.

Spot panchanama (Exh.21) as stated above negatives

existence of blood stains on the spot. The evidence of Suresh

is, therefore, inconsistent not only on spot panchanamna but

also to the evidence of Investigating Officer.

8. Needless to state that conviction in a case can be

based on ocular testimony of a victim if evidence of injured is

without any flaw. Here as discussed above evidence of Suresh

is not only against spot panchanama but also against the

ocular testimony of investigating officer. Prosecution did not

examine Prakash Borkar, an eyewitness to the incident. No

reason is assigned for not examining this available witness.

The testimony of injured is not supported by any other witness

examined in the case.

9. Regarding absence of blood stains on the spot,

learned counsel for applicant placed reliance on the judgment

of the Division Bench of this Court in Damodar Joma Mokashi

.vs. State of Maharashtra - 2012 ALL MR (Cri) 2139 and

referring to paragraph 19 of the said judgment submitted that

ocular testimony if contradictory to the spot panchanama and

no blood stains were found, then it is clear that prosecution has

8 Apeal546-03.odt

suppressed the genesis of the prosecution case and the whole

edifice of the prosecution case would then collapse. Learned

counsel submits that considering the previous animosity as

admitted by the complainant in his cross-examination,

corroboration to the testimony of complainant was must in the

present case. The submission is that in the absence of

corroboration, accused ought to have been acquitted by the

trial Court.

10. If evidence of PW7 Dr. Nasim Akhatar is scrutinised

minutely, it can be seen that injured had sustained lacerated

wounds. Complainant's case is that wounds were by sharp

edge of an axe. Doctor admits in cross-examination that there

was no fracture to skull. He also admits that he had no

occasion to peruse medical record and case papers of the

injured maintained by Kasturba Hospital. The admissions

brought in the cross-examination of PW7 Dr. Nasim Akhatar

clearly indicate that complainant is not coming before the

Court with true facts. The evidence of complainant regarding

injuries is also found contradictory to the medical evidence. In

such a circumstance, it is risky to rely upon the sole testimony

of an injured.

9 Apeal546-03.odt

11. It is a settled law that prosecution is required to prove

guilt of the accused beyond reasonable doubt. As discussed

above, conviction is based only on the ocular testimony of an

injured. The evidence of injured suffers from material

infirmities. Conviction on such a testimony which is

inconsistent to the medical evidence without any corroboration

is unsustainable in law.

12. This Court is, therefore, of the considered view that

no interference is warranted in this appeal. Hence the

following order:-

Criminal Appeal No.546 of 2003 is allowed. The order

of conviction and sentence is set aside aside. The accused is

set at liberty. Bail bonds of the accused are discharged. Fine if

deposited, shall be refunded to the person depositing the

same. No costs.

(Kum. Indira Jain, J. ) ...

halwai/p.s.