Bombay High Court
Jaysing S/O Goma Chavan vs State Of Maharashtra,Thr.The ... on 9 October, 2017
Bench: R. B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 201 OF 2002
Jaysing son of Goma Chavan,
Aged about 39 years,
Resident of Gunj (Tanda),
Police Station Mahagaon,
District Yavatmal ... (in Jain) .... APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Mahagaon, Tahsil -
Mahagaon, District Yavatmal. .... RESPONDENT
______________________________________________________________
Shri V.V. Dahat, Advocate (appointed) for the appellant,
Shri H.R. Dhumale, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 9
OCTOBER, 2017
th
ORAL JUDGMENT :
Challenge is to the judgment and order dated 06-3-2002 in
Sessions Trial 70/1999, delivered by the learned 1 st Ad hoc Additional
Session Judge, Pusad, by and under which the appellant (hereinafter
referred to as the "accused") is convicted for offence punishable under
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Section 307 of the Indian Penal Code and is sentenced to suffer
rigorous imprisonment for period of five years and to payment of fine
of Rs.1,000/-.
2. Heard Shri V.V. Dahat, learned Counsel for the accused
and Shri H.R. Dhumale, learned Additional Public Prosecutor for the
respondent.
3. Shri V.V. Dahat, learned Counsel for the accused submits
that the judgment impugned is unsustainable in law. Testimonies of
the prosecution witnesses are marred by omissions, contradictions and
embellishment, is the submission. Shri V.V. Dahat, learned Counsel
would submit, in the alternative, that the evidence on record is not
sufficient to prove the commission of offence under Section 307 of the
Indian Penal Code. At the most even if the evidence is accepted at face
value, the accused is liable to be convicted under Section 324 of the
Indian Penal Code, is the submission.
4. The gist of the prosecution case is that an altercation took
place between the complainant Uttam Ramji Pawar and his brother
Rajusingh Ramji Pawar on one hand and the accused on the other
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hand.
5. The complainant Uttam Ramji Pawar was sitting infront of
his residential house on 29-5-1999 between 7-00 p.m. to 7.30 p.m.
while his brother Rajusingh was attending to the grocery shop which
was situated near the house of the complainant.
6. The accused came to the grocery shop of Rajusingh under
the influence of liquor. The accused demanded "murkul" and when
Rajusingh told the accused that the cost was four annas, the accused
retorted that the "murkul" is worth only five paisa. This led to an
altercation between Rajusingh and the accused. Rajusingh was abused
in filthy language by the accused who also declared that he would
purchase the entire grocery shop. In view of the commotion, the
complainant went to the shop of Rajusingh. He tried to pacify the
accused and escorted him upto his house. The accused, however,
returned armed with gupti, the wife of the complainant asked her
husband Uttam to get out of the way of the accused. However, the
accused all of a sudden inflicted one stab blow on the right side of
abdomen of Uttam below the ribs. The complainant Uttam suffered a
bleeding injury and shouted for help. Manik Rathod, Vijay Rathod,
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Puniram rushed to the spot and rescued the complainant from the
clutches of the accused.
7. The complainant was taken to Rural Hospital, Sawana for
medical examination and treatment in a jeep of Commander make. In
the same jeep the accused was also taken to the said hospital alongwith
the weapon. The Medical Officer informed that first a report be lodged
at the police station Mahagaon and then the patient should be referred
to Civil Hospital, Yavatmal. The complainant's brother and others then
went to police station Mahagaon and the complainant Uttam lodged
oral complaint which was reduced into writing by head constable
Shambharkar (Exhibit 29).
8. The complainant was referred for further medical
examination and treatment to Civil Hospital, Yavatmal. A dying
declaration of the complainant was recorded on 30-5-1999 by the
Executive Magistrate, Yavatmal (Exhibit 47). Since the complainant
Uttam survived the assault, the said document Exhibit 47 is not a dying
declaration and is a statement akin to one recorded under Section 164
of the Criminal Procedure Code.
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9. On the basis of the oral report lodged by the complainant,
offence under Section 307 of the Indian Penal Code was registered
against the accused who was arrested on 29-5-1999. The weapon of
offence was seized under seizure panchanama Exhibit 38 dated
29-5-1999.
10. The completion of investigation culminated in submission
of charge-sheet in the Court of Judicial Magistrate First Class,
Mahagaon who committed the case to the sessions Court. The accused
abjured guilt and claimed to be tried. The defence, as is discernible
from the trend of cross-examination and the statement recorded under
Section 313 of the Criminal Procedure Code is of total denial and false
implication. A specific defence is taken that since the proposal of
marriage of one Jyotsna, the daughter of the complainant's brother was
rejected by the brother of the accused Raju, the accused is falsely
implicated.
11. The prosecution has examined as many as ten witnesses.
P.W.1 Uttam Pawar is the injured complainant, P.W.2 Dr. Dinesh
Kurme is the Medical Officer who examined Uttam and who is the
author of the injury certificate Exhibit 33, P.W.3 is Rajusingh Pawar
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who is the brother of the complainant and an eye witness to the
incident, P.W.4 Manik Rathod, P.W.5 Vijay Rathod and P.W.6 Jyotsna
Rajusingh Pawar are eye witnesses to the incident. P.W.4 Manik
Rathod is also a witness to the spot panchanama Exhibit 36 while
P.W.5 Vijay Rathod is also a witness to the seizure panchananma of the
weapon of offence. P.W.7 Devidas Chavan is also a witness to the
seizure panchanama of the shirt of the accused Exhibit 41, P.W.8
Bhaskar Vaidya is the Executive Magistrate who recorded the dying
declaration of Uttam Ramji Pawar Exhibit 47, P.W.9 Mahadeorao
Shambharkar is the head constable who reduced the oral complaint in
writing and registered the offence. P.W.9 also seized gupti under
seizure panchanama Exhibit 38, blood stained clothes of the
complainant seized under seizure panchanama Exhibit 30 while P.W.10
Gangaprasad Gautam is the investigating officer.
12. P.W.1 Uttam is an injured witness. Ordinarily, the
testimony of injured witness stands on a higher pedestal than that of
other witnesses. The injuries suffered lend an assurance to the
presence of the witness on the spot. An injured witness is not likely to
absolve the guilty and to implicate the innocent. This is not an
immutable rule of evidence but is a logical and rational assumption
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with rests on normal human conduct. The testimony of P.W.1 is
broadly consistent with the oral report. It is true that certain omissions
are brought on record. However, the omissions do not dent the
substratum of the testimony. Illustratively, one of the omissions is that
the oral report does not state that the wife of the complainant asked
the complainant to get out of the way of the accused. A first
information report is even otherwise not an encyclopedia and failure of
the informant to state relatively collateral or peripheral facts must not
be attached too much importance of significance. The evidence of
P.W.1 is confidence inspiring. He has deposed that an altercation took
place between the accused and Rajusingh at the grocery shop, P.W.1
pacified the accused and escorted the accused near his house and then
the accused returned armed with a gupti and inflicted a stab wound on
the right side of the abdomen below the ribs. The evidence of P.W.1 is
corroborated by the medical evidence. P.W.2 Dr. Dinesh Kurme has
proved the injury certificate Exhibit 33. Nothing is brought out in the
cross-examination of P.W.2 to assist the defence. P.W.2 has deposed
that the injured complainant suffered one stab injury with 4 x 1 x 3 cm.
dimension which was caused by a sharp weapon.
13. P.W.3 Rajusingh Pawar is the brother of the complainant
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with whom the accused had altercation leading to the assault on P.W.1.
P.W. 3 has broadly deposed on similar lines as P.W.1. A few omissions
are brought on record. However, the omissions do not pertain to
significant or core facts. Illustratively, the fact that the accused took
out currency note of Rs. 10/- and offered the same to P.W. 3 is brought
on record as an omission. The evidence of P.W. 3 on the assault by the
accused on the person of P.W. 1 by gupti is reliable.
14. P.W. 4 is examined to prove the spot panchanama. He did
not support the prosecution and was cross examined by the learned
Additional Public Prosecutor. In the cross-examination he admits that
the spot panchanama was prepared in his presence and proves the
same (Exh. 36). P.W. 5 is examined to prove the seizure of the
weapon. He initially did not support the prosecution, was declared
hostile and in the cross-examination has supported the prosecution and
proved Exh. 30 which is the seizure panchanama. P.W. 6 - Jyotsna
Pawar is an eye-witness. Her testimony is also confidence inspiring and
has stood the test of cross-examination. She has denied the suggestion
that since the accused did not accept proposal of matrimonial alliance
between the witness Jyotsna and the brother of accused Raju, the
accused were falsely implicated. P.W. 8 - Bhaskar Vaidya has recorded
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the statement of injured Exh. 47. The statement was recorded as dying
declaration. However, since the injured survived, Exh. 47 would at the
most be a statement akin to one recorded under section 164 of
Criminal Procedure Code.
15. P.W. 9 - Mahadeorao Shambharkar and P.W. 10 -
Gangaprasad Gautam have deposed on the various facets of
investigation.
16. The finding recorded by the learned Sessions Judge that
P.W. 1 was assaulted by the accused who stabbed P.W. 1 with gupti, is
unexceptionable. However, I am not persuaded to accept the
submission of the learned Additional Public Prosecutor that offence
punishable under section 307 of Indian Penal Code is established. One
single blow appears to have been inflicted. The assault was the
aftermath of an altercation. The evidence does not suggest that after
inflicting the single blow, there was any attempt made by the accused
to continue with the assault. It is not established by the prosecution
that the accused was interrupted or prevented by any external factor
from taking the assault to the logical end. The intent to cause death is
not established beyond reasonable doubt. In this view of the matter, I
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would set aside the conviction under section 307 of the Indian Penal
Code and instead convict the accused of offence under section 324 of
the Indian Penal Code. The accused has already undergone
approximate 403 days of detention as under trial prisoner and as
convict. The following order would meet the ends of justice:
The appeal is partly allowed.
The conviction of the appellant/accused under Section 307
of the Indian Penal Code is set aside.
Instead, the appellant/accused is convicted of offence
punishable under Section 324 of the Indian Penal Code and is
sentenced to suffer imprisonment/detention already undergone.
The sentence of payment of fine is maintained.
The bail bond of the accused shall stand discharged.
The fees of the learned Counsel appointed to represent the
appellant are quantified at Rs.5,000/-.
The appeal is disposed of accordingly.
JUDGE
adgokar/belkhede
