Navalchand Motiram Jadhav vs State Of Maharashtra
2017 Latest Caselaw 7950 Bom

                                      1                                      apeal315.00




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 315 OF 2000


 Navalchand Motiram Jadhav,
 Aged 32 years, 
 R/o Januna, Tq. Barshitakli, 
 District Akola.                                             ....       APPELLANT


                     VERSUS


 State of Maharashtra,
 through P.S.O., Pinjar, Police Station
 Pinjar, Tq. Barshitakli, District Akola. ....  RESPONDENT
 ______________________________________________________________

            Shri Pushkar Ghare, Advocate for the appellant, 
            Shri H.R. Dhumale, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 21-08-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 10-10-2017


 JUDGMENT : 

The challenge is to the judgment and order dated 07-

11-2000 in Sessions Case 200/1998, delivered by the learned IInd

Additional Sessions Judge, Akola, by and under which the appellant

(hereinafter referred to as the "accused") is convicted of offence

punishable under Section 307 of the Indian Penal Code and is

2 apeal315.00

sentenced to suffer rigorous imprisonment for five years and to

payment of fine Rs.1,000/-.

The accused also faced trial for offences punishable under

Section 4 read with Section 25 of the Arms Act and under Section

37(1)(3) read with Section 135 of the Maharashtra Police Act, he is,

however, acquitted of the said offences.

2. Heard Shri Pushkar Ghare, learned Counsel for the

accused and Shri H.R. Dhumale, learned Additional Public Prosecutor

for the respondent.

3. Shri Pushkar Ghare, learned Counsel for the accused

submits that the judgment is against the weight of evidence. The

prosecution has miserably failed to prove the panchanama of the spot

where the incident allegedly took place. The injured complainant and

the other prosecution witnesses are giving different versions of the spot

of the alleged incident, is the submission. The learned Counsel for the

accused submits that the accused has more than probablised the

defence that P.W.1 Vasanta suffered injury since his head dashed

against a tin roof. The learned Counsel would then submit that the

medical evidence is totally inconsistent with the ocular evidence. The

3 apeal315.00

veracity and credibility of the testimonies of the prosecution witnesses

is in serious doubt, is the submission.

4. Per contra, the learned Additional Public Prosecutor Shri

H.R. Dhumale would submit that the judgment impugned does not

suffer from any infirmity, on facts or in law.

5. Concededly, the injured Vasanta Dola Jadhav and the

accused are cousin brothers. The informant Chandu Dola Jadhav, is

the blood brother of the injured. The gist of the oral report lodged by

Chandu on 28-4-1998 is that at 8.00 p.m. on 28-4-1998, he and the

injured Vasanta were engaged in conversation in his house. The

accused came to Chandu's house and asked injured to lend him

Rs.5,000/- for constructing a well. The injured Vasanta refused to

oblige, the accused physically assaulted Vasanta, the accused pushed

and abused Vasanta and both were pacified by the informant Chandu.

The accused went home and while the informant was pacifying Vasanta

and taking him inside the house, the accused came from behind and

inflicted sword blow on the head of Vasanta. The informant snatched

the sword from the accused who ran away. The informant took

Vasanta to Government Hospital at Pinjar and also brought the sword

4 apeal315.00

to the police station, is the recital in the report.

6. The injured Vasanta Jadhav is examined as P.W.1. He has

deposed that the accused is his cousin and resides in the adjacent

house. P.W.1 states that there is chhapri (varandah) infront of his

house and in the night hours his house and the chhapri are illuminated

by electric light/s. P.W.1 has deposed, consistent with the first

information report lodged by Chandu, that the accused accosted him

on 28-4-1998, sought to borrow Rs.5,000/- and when P.W.1 expressed

inability to oblige, the accused started physically assaulting and

abusing P.W.1. The injured further deposes that the accused went to

his house, returned armed with a sword, called P.W.1 by name and

when P.W.1 turned back to answer, the accused inflicted a sword blow

on the head of P.W.1. P.W.1 further states that he suffered bleeding

injury and felt unconscious. He has deposed that he and Chandu

snatched the sword from the accused and then the accused fled. It is

revealed from the cross-examination of P.W.1, that the effort was to

demonstrate motive for false implication. However, nothing is elicited

from P.W.1 to suggest that the accused is falsely implicated. While

appreciating the evidence of an injured witness, the Court must

necessarily be alive to the settled position of law that the testimony of

5 apeal315.00

any injured witness stands on a higher pedestal. An injured is not

ordinarily likely to absolve the guilty and inculpate or falsely implicate

the innocent. Injuries further lend an assurance to the presence of the

witness on the spot. P.W.1 is suggested that due to loss of balance in

the scuffle between P.W.1 and the accused the tin on the roof of the

house of Chandu struck P.W.1 on the head.

7. The trend of the cross-examination and the suggestion

given by the defence clearly show that the presence of the accused on

the spot and the occurrence of a scuffle between the accused and the

injured is the version of the accused himself. The suggestions given by

the accused to P.W.1 lend assurance to the prosecution case at least to

the extent that the accused was present on the spot and concededly

was involved in a scuffle with P.W.1. The defence that P.W.1 lost

balance and the tin roof struck his head is not worthy of acceptance.

The defence is falsified by the medical evidence on record.

8. P.W.2 Bhausingh Rathod has proved the spot panchanama

Exhibit 22. The informant, who is the blood brother of the injured, is

examined as P.W.3. He has supported the prosecution to the hilt in the

examination-in-chief. This was done to ensure that he is not declared

6 apeal315.00

hostile and the prosecutor is not impelled to seek permission of the

Court under Section 154 of the Evidence Act to put questions to

Chandu in the nature of cross-examination. Chandu, however, was

clearly won over. In the cross-examination, on behalf of the accused,

P.W.3 Chandu has admitted every suggestion given and the attempt to

help the accused to escape from the clutches of law is too obvious to

warrant any serious debate. Chandu is prima facie answerable to the

charge of perjury and I shall advert to this aspect at a later stage in the

judgment. Chandu has made a crude attempt to pollute the stream of

justice and must be held answerable lest dishonest or compromised

witnesses render ineffective the justice dispensation system.

9. Sangitabai Jadhav who is examined as P.W.5 is an

eyewitness to the incident. She has deposed that at 8.00 p.m. on

28-4-1998 there was exchange of words between the injured and the

accused, the accused went home and returned armed with a sword and

inflicted a sword blow on the head of the injured Vasanta. She deposes

that her house abuts the house of injured Vasanta and when the

incident occurred, she was in the osari (varandah) of her house. She

has also deposed that she could witness the incident in the light from

her osari (varandah) and that of the injured Vasanta. In the cross-

7 apeal315.00

examination, P.W.5 admits that her house is behind the house of the

injured with an open space of 10 to 15 feet dividing the two houses.

She has, however, denied the suggestion that from the osari of her

house one cannot see what is happening infront of the house of injured

Vasanta. Some omissions and discrepancies are brought on record but

then nothing significant is elicited to dent the credibility of Sangitabai.

Her testimony is trustworthy and confidence inspiring. She is affirming

in her deposition that in view of the illumination due to the electric

lights in the osari of the injured Vasanta and her own osari, she could

witness the incident in the late evening hours. While she has admitted

that her house is situated behind the house of Vasanta, from the said

admission it cannot be said that she was in no position to witness the

incident.

10. The injured Vasanta and P.W.5 Sangitabai were

extensively cross-examined. However, nothing is elicited in the cross-

examination to render suspect the consistent testimony that the

accused inflicted sword blow on the head of the injured Vasanta. Au

contraire, the suggestion in the cross-examination brings on record that

there was an altercation between the injured Vasanta and the accused

in the evening of 28-4-1998 and the altercation was both wordly and

8 apeal315.00

physically. The inimical terms between the injured and accused are

again brought on record by the suggestion given to the injured Vasanta.

The evidence of Vasanta and Sangitabai has not been seriously

challenged and the only material suggestion given is that during the

scuffle, the injured lost his balance and his head struck against the roof

tin of the house of Chandu, which suggestion is denied by both the

injured Vasanta and Sangitabai.

11. I have already observed that Chandu (P.W.3) is prima facie

one over by the accused and the parrot like admissions given in the

cross-examination on behalf of the accused do not take the case of the

accused any further. However, what is clear from the evidence of even

a dishonest witness like Chandu is that he lodged a report with

promptitude and produced the sword before the police. Obviously

since the report was lodged with promptitude, there was no scope for

the accused to lure or induce to subvert the course of justice, at that

stage. Chandu P.W.3 was compromised and subverted later on. He

must be held accountable and answerable to the offence of

perjury/giving false evidence lest the confidence of the common

citizens in the sanctity of the justice dispensation system is eroded.

9 apeal315.00

12. On an overall appreciation of evidence, I have no

hesitation in holding that the prosecution has established the offence

punishable under Section 307 of the Indian Penal Code beyond

reasonable doubt and that the appeal is without substance.

13. The appeal is dismissed. Bail bond of the accused shall

stand cancelled. The accused be taken into custody forthwith to serve

the sentence.

Let a notice be issued to Chandu Dola Jadhav (P.W.3) to

show cause as to why action should not be initiated against him for

intentionally giving false evidence before the learned trial Court and

thereby prima facie committing offence punishable under section 193

of the IPC.

JUDGE adgokar