Kewalram S/O Saktuji Yerne vs State Of Mah. Thr. P.S.O., P.S. ...
2017 Latest Caselaw 9147 Bom

 apeal337of2010.odt                        1




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


                     CRIMINAL APPEAL NO.337 OF 2010

 Kewalram S/o. Saktuji Yerne,
 Aged about 39 years,
 Occupation : Service,
 R/o. Mengatole, Police Station
 Goregaon, 
 District Bhandara                                             ...APPELLANT

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

 State of Maharashtra,
 through Police Station Officer,
 Police Station, Tumsar,
 Tahsil Tumsar, District Bhandara                            ...RESPONDENT
 -------------------------------------------------------------------------------------------
          Mr. K.R. Lambat, counsel for the Appellant.
          Mr. A.M. Kadukar, Additional Public Prosecutor for the State
 -------------------------------------------------------------------------------------------

                                            CORAM       
                                                       :ROHIT B. DEO, J. 

DATE :29.11.2017

ORAL JUDGMENT:

The appellant is aggrieved by the judgment and order

dated 21.05.2010, in Sessions Trial 17 of 2007, delivered by the

Additional Sessions Judge, Bhandara, by and under which, the

appellant is convicted for offence punishable under section 307 of

the Indian Penal Code ("IPC" for short) and sentenced to suffer

rigorous imprisonment for three years and to payment of fine of

Rs. 5000/-.

2 Heard Shri. K.R. Lambat, the learned counsel for the

appellant and Shri. A.M. Kadukar, the learned Additional Public

Prosecutor for the respondent / State.

3 The case of the prosecution, as is unfolded during the

course of trial, is that the appellant (hereinafter referred to as "the

accused") Kewalram Yerne nurtured a suspicion that the injured

Rahul Bhajipale is in a illicit relationship with Bhavika, the wife of

the accused. The accused asked the injured Rahul to accompany

him to Tumsar Railway Station to receive Bhavika and the

children. Rahul and the accused proceeded to the Railway Station

on two wheeler of Rahul. Bhavika and the children of the accused

were not seen at the Railway Station, Rahul and the accused

decided to return. After proceeding for some time, the accused

asked Rahul to stop the two wheeler near hotel Muskan situated

on Tumsar - Dewhali road. Rahul stopped the motorcycle, the

accused got down and all of a sudden whipped out knife from

pocket and inflicted 2 - 3 blows under the left rib of injured Rahul.

4 Bleeding profusely the injured Rahul rushed towards

hotel Muskan and collapsed near the door of the hotel. The staff

of hotel Muskar who rushed to help the accused were asked by the

injured Rahul to inform his family members of the incident. Rahul

wrapped towel provided by one of the waiter to stop or control the

bleeding, was shifted to Government Hospital, Tumsar and

thereafter, to the General Hospital, Bhandara. The injured Rahul

was then admitted to Government Medical College and Hospital,

Nagpur, for further treatment.

5 The incident was reported by Samir Bhajipale (PW 1),

the brother of the injured and on the basis of the report offence

punishable under section 307 of the IPC was registered.

Clothes of the injured Rahul were seized in presence of the

panchas, spot panchanama was prepared, blood mixed soil sample

was seized from the spot, the accused was arrested on 1.10.2006

and the clothes of the accused were seized. Knife which was used

by the accused to inflict the injuries was seized pursuant to

memorandum Exh. 55. The clothes, knife and the blood sample

were sent for Chemical Analyzer and reports Exh. 60, Exh. 61 and

Exh. 62 were obtained. The culmination of investigation led to

submission of chargesheet in the Court of the Judicial Magistrate

First Class, Tumsar, who committed the proceedings to the

Sessions Court.

6 The learned Sessions Judge framed charge for the

offence punishable under section 307 of the IPC, the accused

abjured guilt and claimed to be tried in accordance with law. The

defence, as is discernible from the trend and tenor of the cross-

examination and the statement recorded under section 313 of the

Code of Criminal Procedure, is of total denial and false

implication. The suggestion given to the injured and other

material witnesses, is that since the injured Rahul nurtured a

suspicion that the accused and the wife of the injured Rahul were

in a relationship, the accused is falsely implicated.

7 Shri. K.R. Lambat, the learned counsel for the accused

submits that the evidence on record is grossly insufficient to bring

home the charge. He would submit that the testimony of the

injured Rahul is rendered suspect since there are two injury

reports on record Exh. 32 dated 28.9.2006 and Exh. 34 dated

28.10.2006. The seizure and discovery of knife is attacked on the

ground that the knife was seized from the road, concededly, with

unhindered and open public access two days after the incident.

The panch to the seizure and discovery did not support the

prosecution and it is only the Investigating Officer who has

deposed as regards the seizure and discovery. The submission is,

that the discovery of the knife, as an incriminating material, must

be discarded. The learned counsel Shri. Lambat would submit that

the report of the Chemical Analyzer qua the clothes of the accused

is inconclusive, although, human blood is detected on clothes

(Exh. 60), the blood group is not determined. The learned counsel

would then submit, that the evidence of the material witnesses

including the informant who is examined as PW 1 and the injured

who is examined as PW 2, is marred by inter-se contradiction and

inconsistency.

8 Per contra, Shri. A.M. Kadukar, the learned Additional

Public Prosecutor, submits that the judgment impugned is

unexceptionable on facts and in law. The marshalling of evidence

on record can not be faulted, is the submission. The finding

recorded by the learned Sessions judge, that the prosecution has

established the offence under section 307 of the IPC beyond

reasonable doubt, is the only finding which could have been

reached in the teeth of the evidence on record, is the submission of

the learned Additional Public Prosecution.

9 I have given my anxious consideration to the evidence

on record, the submissions canvased by the learned counsel for the

accused and the learned Additional Public prosecutor and the

reasons recorded by the learned Sessions Judge, and having done

so, I am not persuaded to agree with the learned counsel for the

accused that the judgment impugned is against the weight of

evidence on record.

10 Concededly, PW 2 Rahul suffered serious injuries.

The defence, that the injuries suffered by Rahul were minor or

were self inflicted is noted only for rejection. The submission of

the learned counsel for the accused that the two injury reports

Exh. 32 and Exh. 34 dated 28.9.2006 and 28.12.2006,

respectively, render the evidence of the injured PW 2 or the

medical evidence suspect, is again without substance. The author

of the injury certificates Exh. 32 and Exh.34 is examined as PW

6. The second injury certificate dated 28.12.2006 is only

clarificatory in nature and is not inconsistent with the injury

certificate dated 28.9.2006 (Exh. 32). Concededly, the injuries

suffered by PW 2 Rahul, are grievous as would be evident from

nature of the injuries, which in the words of PW 6 were:

(i) One incised wound vertically placed of size 3 x 1.5 cm, 2 cm anterior to mid clavicular line, bleeding was present, depth could not be ascertained;

(ii)One incised wound vertically placed of size 4 x 2 cm. posterior to injury no.1 by 2 cm, depth omentum and small intestine protruding;

(iii)One curved incised wound about 10 cm above injury no. 1 of size 5 x 1 cm in mid axillary line, depth, could not be ascertained, bleeding was present.

Nothing is brought out in the cross-examination of PW 6 to

render the medical evidence suspect. PW 2 - Rahul is an injured

witness. His evidence has gone virtually unchallenged in the cross

examination, on core and material aspects and facets of the

incident. It is well settled position of law, that the evidence of an

injured witness, is on a higher pedestal than the evidence of other

witnesses. The fact that the witness is injured lends an assurance

to the prosecution version that the witness was indeed on the spot

of the incident. An injured witness, ordinarily, is not likely to

exculpate the guilty and inculpate the innocent. The prosecution

has established beyond any shadow of doubt, that the injured PW

2 suffered serious injuries in the assault. Nothing is brought on

record, in the cross-examination of the material witnesses, or

otherwise, to probabilize the defence that the accused is falsely

implicated, even on the touchstone of preponderance of

probabilities. I do not see any reason to disbelieve the evidence of

the injured Rahul.

11 The evidence of the injured Rahul, is more than amply

corroborated by the evidence of PW 1 Sameer, who is the

informant and whose deposition is broadly consistent with the

contents of the First Information Report Exh. 18. Even after

keeping out of consideration the discovery of the weapon, there is

sufficient evidence on record to bring home the charge.

12 The assault, was not on the spur of the moment. It is

axiomatic, that the assault was planned meticulously. The injured

was made to accompany the accused under the pretext that the

wife and children of the accused were to be received at the railway

station. The accused was armed with a weapon and the manner of

assault leaves no doubt in once mind that the intention was to kill

the injured. In view of the evidence on record, the finding

recorded by the learned Sessions judge that the prosecution has

established the offence punishable under section 307 of the IPC is

again unexceptionable.

On a holistic appreciation of evidence on record, I do not

find any infirmity in the judgment impugned.

The appeal is sans merit and is rejected.

Bail bond of the accused shall stand cancelled forthwith.

The accused be taken in custody to serve the sentence.

JUDGE

RS Belkhede