Sunil Sadashiv Akare vs State Of ...
2017 Latest Caselaw 8229 Bom

 apeal728of02.odt                          1



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


                     CRIMINAL APPEAL NO.728 OF 2002


 Sunil son of Sadashiv Akare,
 aged about 24 years, 
 Resident of Dolmara, 
 Tahsil Mouda, P.S. Mouda,
 District Nagpur                                             ...APPELLANT

          ...Versus...


 State of Maharashtra,
  through P.S.O. P.S. Mouda,
 Tahsil Mouda, District Nagpur                               ...RESPONDENT

 -------------------------------------------------------------------------------------------
          Shri. R.M. Daga, Counsel for Appellant.
          Shri. H.R. Dhumale, Additional Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------

                                   CORAM:           ROHIT B. DEO, J. 

DATE OF RESERVING THE JUDGMENT : 22-09-2017 DATE OF PRONOUNCING THE JUDGMENT : 30-10-2017

ORAL JUDGMENT

Challenge is to the judgment dated 23.12.2002 in

Sessions Trial 150 of 2002 delivered by 4 th Adhoc Additional

Sessions Judge, Nagpur by and under which the appellant

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

punishable under section 307 of Indian Penal Code ("IPC" for

short) and sentenced to suffer rigorous imprisonment for 5 years

and to payment of fine of Rs. 2,000/-.

2 Heard Shri. R.M. Daga, the learned counsel for the

appellant and Shri. H.R. Dhumale, learned Additional Public

Prosecutor for the respondent / State.

3 The case of the prosecution is that the injured Rekha

and the accused were deeply in love. The injured Rekha and the

accused were residents of village Dholmara, Mouda, District

Nagpur. Concededly, there is voluminous documentary evidence

on record in the form of several letters written by the injured

Rekha to the accused which reveal the intensity of the

relationship.

4 It is version of the prosecution, and the version is not

seriously challenged, that although the family of the injured was

not against the relationship and was indeed ready to solemnize the

marriage of the injured with the accused, the family of the accused

was opposing the alliance, tooth and nail.

5 The injured Rekha Zingare, who is examined as PW

10 has deposed that she and the accused were in love, both

decided to perform marriage, however, the parents and brother of

the accused were against the proposal. The injured Rekha went to

Gondia for further education after completing 12 th standard and

the accused went to Nagpur for further higher education. The

injured states that on 1.11.2001, both she and the accused were in

the village in view of the Diwali holidays. She went to the well to

fetch water, she had filled the pot with water and was about to lift

it when the accused arrived and expressed desire to have a word

with Rekha. She neglected the accused who caught her hand from

behind and by the other hand inflicted blows of knife on her chest

and stomach. Rekha states that she felt unconscious and regained

consciousness in General Hospital, Bhandara.

 6                The   prosecution   has   examined   as   many   as   five

 witnesses   as   eye   witnesses.     However,   it   is   only   Rekha   whose

testimony supports the prosecution and can be considered to be

implicitly reliable. The brother of injured Rekha, Umesh who is

examined as PW 11 claims to have witnessed the incident.

However, the very presence of Umesh on the spot is extremely

doubtful. Umesh has deposed that the accused took out a gupti

from a hut, went towards well and then assaulted Rekha with the

gupti. According to Umesh, Rekha fell down and the accused

again inflicted blows on her person with the gupti. The statement

that the accused took out a gupti from a hut is an omission, and so

is the statement that the injured Rekha fell down and the accused

again inflicted gupti blows on her person. PW 11 - Umesh has

given an account which is not even the version of the injured

Rekha. His testimony must be discarded as absolutely unreliable.

Kamalabai, the mother of the injured Rekha, who is examined as

PW 12 has concededly not seen the incident and has arrived at the

spot after Rekha suffered injuries. PW 7 - Sunanda and PW 8 -

Kalabai who were examined as independent eye witnesses have

not supported the prosecution and though cross-examined by the

learned Additional Public Prosecutor, nothing is elicited from the

cross-examination to assist the prosecution.

7 I have given my conscious consideration to the

testimony of the injured Rekha and having done so, I find her

testimony reliable and confidence inspiring.

8 The prosecution has indeed established, through the

evidence of the injured witness Rekha, that the accused inflicted

blows on the person of the injured witness with a sharp weapon.

The other important fact which is established is that

simultaneously the accused consumed poison. Indeed, it is

admitted by the prosecution witness Umesh that the brother of the

accused admitted both the injured Rekha and the accused to the

General Hospital, Bhandara. It is not clear from the evidence as to

whether the accused had consumed poison before assaulting

Rekha or the accused consumed poison post assault.

9 PW 3 - Raghupati and PW 4 - Mahadeo who were

examined to prove the seizure of the weapon have not supported

the prosecution. The recovery from an open paddy field of the

gupti, at the instance of the brother of the accused, to which

recovery PW 13 - Rupchand Bhalavi testifies, is of no significance.

Recovery of the gupti at the instance of the brother of the accused

and that too from an open paddy field, is suspect. PW 9 - Gopal

Lanje who was then the Medical Officer at General Hospital,

Bhandara, states that out of the seven stab injuries, four were

superficial. He has deposed that one pen knife was sent to him for

examination and having examined the weapon, he opined that the

injuries suffered by Rekha could be caused by the pen knife. PW 9

has proved Exh. 46 which is the opinion given after examining the

weapon sent by the police. The witness admits in the cross-

examination that the original record of the treatment of the

injured witness is not brought before the Court. He admits that

the certificate does not mention that the injuries were on vital part

of the body or that the injuries were life endangering or that a

person may die due to injuries in natural course. The Medical

Officer further admits that no internal organ was damaged. He

further admits that sword stick or gupti was not sent to him for

examination and that size of the injuries do not correspond with

the dimension of the blade of the weapon.

10 The Medical Officer has deposed on the basis of the

medical certificate Exh. 45. Concededly, the record of the

treatment of the injured was not produced. The medical

certificate is absolutely silent on the gravity of the injuries

suffered. The Medical Officer has deposed that the weapon sent to

him for examination was a pen knife, pertinently, even the injured

Rekha makes a reference to a knife and not to a gupti or sword

stick. The prosecution has not adduced any evidence to bring on

record the details of the treatment or hospitalization nor has

prosecution adduced any evidence as to the treatment given to the

accused who concededly consumed poison either immediately

before the incident or immediately after the incident. To my

mind, the prosecution has neither been diligent nor fair.

11 On a holistic appreciation of the evidence on record,

although, the inflicting of stab injuries on the person of the injured

Rekha is established, in my opinion, the prosecution has failed to

establish offence punishable under section 307 of IPC. The injured

Rekha has only stated that the accused inflicted stab injuries. The

medical evidence is absolutely inadequate to assist the Court in

ascertaining the nature, extent and in general the gravity of the

injuries. The incident is blurred. It is not in serious dispute that

the accused and the injured were deeply in love and that the

accused consumed poison either immediately before or after the

assault. It is difficult to attribute with any certainty the intention

to cause death. I am therefore, inclined to set aside the conviction

for offence punishable under section 307 of the IPC and to instead

convict the accused for offence punishable under section 324 of

the IPC. The accused has already undergone around eight months

of detention including pre-conviction detention as under trial

prisoner. Incident occurred sixteen years ago when both the

accused and the injured were young and concededly in intense

relationship. The detention undergone is an adequate sentence in

the facts of the case.

The conviction of the accused under section 307 of the IPC

is set aside and instead the accused is convicted for offence

punishable under section 324 of the IPC.

The accused is sentenced to detention already undergone.

The bail bond shall stand discharged.

The appeal is partly allowed.

JUDGE

Belkhede