Ashish @ Ashutosh Dharamraj ... vs State Of Mah. Thr. Pso Civil Lines, ...
2017 Latest Caselaw 6854 Bom

                                                                                             CRI.APPEAL.508.03
                                                             1


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

                            CRIMINAL APPEAL NO. 508/2003 

          Ashish alias Ashotosh Dharamraj Meheshkar 
          Aged about 20 years, R/o Jawaharnagar 
          Akola, Tq. & Dist. Akola.                                                            ..   APPELLANT 

                     v e r s u s

          State of Maharashtra 
          Through Police Station Officer 
          Civil Lines Police Station, Akola, 
          Tq. & Dist. Akola.                                                                   .. RESPONDENT

...........................................................................................................................
           None for the appellant 
           Mr. S.B. Bissa, Additional Public Prosecutor for  respondent-State
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     6th September,  2017

ORAL JUDGMENT: 

This Appeal has been directed against the judgment and order

dated 26.6.2003 passed by the learned II Additional Sessions Judge, Akola in

Sessions Trial No. 155/2000 thereby convicting the appellant under Section

324 of the Indian Penal Code and sentencing him to suffer R.I. for two years

and to pay a fine of Rs. 1000/- in default, further R.I. for one month.

2. I have heard Mr. S.B.Bissa, the learned Additional Public

Prosecutor and with his assistance, I have perused the entire record. The

counsel for the appellant remained absent.

3. Brief facts of the case are that: the complainant Vijay Pawar

CRI.APPEAL.508.03

(PW8) and Ashish(appellant) were known to each other. The appellant was

the classmate of elder brother of the complainant. The appellant used to

intercept the complainant whenever he used to attend the tuition classes. It is

alleged that the appellant used to demand money from him for the purpose of

consuming liquor. There was some dispute between the appellant and the

complainant on the occasion of Sankrant festival of the year 1999 on the trifle

issue of flying kites. At that time, the appellant threatened to kill the

complainant. On 31st December, 1999 while the appellant and his friends were

celebrating the arrival of New Year at Lala Lajpatrai Colony premises, the

appellant along with the original accused no.2-Jitendra arrived there. The

appellant-Ashish gave a kick blow to the complainant and also threatened

him that he shall see him later on. On the date of the incident i.e. on

23.1.2000 when the complainant along with his friend Atul Chavan (PW7),

Nagesh Kakad, Nitin, and Bunty Rangari were sitting on the ground of

Toshniwal Layout at about 7.30 pm, the appellant along with accused no.2

-Jitendra came on Luna moped. The appellant started abusing the complainant

and assaulted him with fist and kick blows. Thereafter Jitendra caught hold of

the victim and the appellant dealt a blow by a sharp edged weapon on the

lateral portion of the chest of the complainant due to which he sustained

bleeding injury. Thereafter the appellant and Jitendra fled away from the

place of the incident. The complainant then proceeded to the Civil Lines Police

Station, Akola and lodged the complaint(Exh.36) against the accused.

CRI.APPEAL.508.03

4. At the relevant time, PW 9-Ramdas Lad, Police Inspector was

attached to Police Station, Civil Lines, Akola. He recored the complaint/oral

report (Exh.36) and on the basis of it, registered an offence vide Crime No.

47/2000 u/s. 307 r/ws. 34 of the IPC. API Suresh Tijare (PW10) who was

attached to Civil Lines, Police Station, Akola, visited the place of the incident

and recorded the spot panchnama (Exh.21), so also the statements of the

witnesses. He arrested the accused no.2-Jitendra on 28.1.2000 and appellant

-Ashish on 31.1.2000. API Suresh Tijare, (PW10), took charge of the knife at

the instance of the appellant vide seizure panchnama Exh.32. The victim was

admitted in the hospital. PW10-Tijare took charge of the clothes of the victim

vide seizure memo (Exh.29). He also took charge of the clothes of the

appellant under seizure panchnama (Exh.43). The clothes were sent to C.A.

office for analysis. The CA report was secured during the course of

investigation (Exh.65). After completion of investigation, charge-sheet was

filed. The learned Judge framed the charge. He conducted the trial and after

hearing both the sides, convicted the appellant, as aforesaid. Hence,this

Appeal.

5. The prosecution has examined as many as ten witnesses, out of

which PW 8-the complainant/victim-Vijay, PW7 Atul Chavan, an alleged eye

witness, PW 6-Ganesh Thakre, a panch witness on the point of seizure of knife

and the Medical officer PW1-Dr. Shruti Dongre, are the relevant witnesses.

6. PW 8-Vijay who is the victim, has categorically stated that he

CRI.APPEAL.508.03

was knowing the appellant-Ashish and Jitendra. They both used to demand

money for consuming liquor, when PW8 was attending the tuition classes, they

used to threaten him that if he fails to pay the money to them they will not

allow him to attend the tuition classes. Even, at the time of Sankrant festival,

on the reason of flying kites, there was a quarrel between PW 8 and the

appellant. On 31st December also, there was a quarrel between them. At that

time the appellant had assaulted PW8 by giving kick blows and threatened

PW8 that he would see him later on. On the date of incident i.e. on 23.1.2000

between 7 and 7.30 pm, when PW8 was at the ground of Toshwniwal Layout

along with Atul Chavan (PW 7) and Bunty Rangari, the appellant along with

Jitendra came to that place by Luna moped. They assaulted the victim by

means of fist and kick blows. Jitendra caught hold of the hands of PW8 and

the appellant gave a blow of some sharp edged weapon on the chest of PW 8.

Atul (PW7) tried to intervene. Thereafter both the accused fled away from the

place of the incident. Due to the said assault, PW8 suffered bleeding injury on

left side of his chest. One Nagesh Kakad took PW8 to the Civil Lines Police

Station on a bicycle. The complaint (Exh.36) of PW 8 was recorded by the

police.

7. The testimony of PW8 is not shattered in the cross-examination.

There was no reason for PW8 to shield the real culprit and falsely implicate the

appellant in the offence in question. PW 8 was knowing the appellant as well

as other accused since long and the accused were on inimical terms with PW

CRI.APPEAL.508.03

8. There is no question of mistaken identity as such. The victim immediately

rushed to the Police Station after the incident and lodged his complaint

immediately within 40 minutes from the incident harming the appellant. The

FIR also depicts the presence of PW7-Atul at the place of incident. PW8 being

an injured person, due credence to his version needs to be accorded. The

contents in the complaint (Exh.36) are in consonance with the testimony of

PW 8. There are no material discrepancies as such in the testimony of PW8,

which go to to the root of prosecution case.

8. The testimony of Vijay Pawar (PW8) is corroborated with the

testimony of PW 7-Atul Chavan, who deposed that on the date of the incident

between 7.00 to 7.30 pm, he along with the victim-Vijay Pawar (PW 8), Bunty

Rangari and Nagesh Kakad were sitting on the ground at Toshniwal Layout

by lighting firewood. At that time, the appellant along with Jitendra came to

that place on Luna moped. The appellant abused PW8-Vijay. There was quarrel

between Vijay and appellant. On this, the appellant assaulted PW8-Vijay by

giving a blow of something on the left side of his chest, due to which blood

started oozing from the left side of the chest of PW8-Vijay. No doubt, PW 7-

Atul Chavan failed to give the exact description of the weapon so also PW 8

was also unable to state as to by which weapon he was assaulted; however the

testimony of PW 7 is corroborated with the testimony of PW8 on all material

aspects. No doubt there are few discrepancies in the testimony of PW7 with

regard to the fact that the appellant abused PW8 and there was quarrel

CRI.APPEAL.508.03

between the appellant and PW 8. There was also a discrepancy in the version

of PW7 that he tried to intervene and the appellant pushed him and asked

him to be away. However, in my opinion, these discrepancies do not go to the

root of the prosecution case and the fact remains that appellant assaulted PW

8 on the left side of his chest by means of some sharp-edged weapon.

9. As regards the medical evidence of PW1-Dr Shruti Dongre, she

noticed the following injuries on the person of PW8:-

" Lacerated wound on chest wall which was muscle deep size 12 x 4 cm. This wound was inflicted on left lateral side of chest. It was caused by sharp weapon and in my opinion, it was inflicted prior to half an hour of examination. The patient had given me history of stab injury to him. The portion of body on which the injury was inflicted i.e. lateral side of chest is vital organ of human body."

10. According to PW1, though the said injury was muscle deep it

might have caused the death of the patient as the heart is situated just inside

that part of body over which the injury was caused. She further stated that the

injury is possible by the knife. In the cross-examination, however, she stated

that the injury on the person of PW8-Vijay was a simple injury. PW1-Dr. Shruti

issued the medical certificate at Exh.19. The testimony of the Medical Officer

corroborates with the testimony of PW7-Atul and PW8 with regard to the

injury caused to PW8 on the left side of his chest. It is noticed that there is

discrepancy in the size of injury mentioned in injury certificate (Exh.19) as

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12x4 cms. and the bed head ticket as Exh.58 as 5 x 3 inches. However the

Medical Officer (PW1) has herself examined the victim on the date of incident

i.e. 23.1.2000 as stated by PW1 in her cross-examination. PW1 categorically

denied that by means of knife injury of the size 5x3 inches is not possible.

There is nothing to doubt the testimony of Medical officer and it shows that

PW8 was injured by knife.

11. In the case of Baleshwar Mahto and another vs. State of Bihar

and another, reported in (2017) 3 SCC 152 in Para no.11,the Hon'ble Supreme

Court has observed as under:

"11....................How medical evidence is to be collated with ocular evidence is described by this Court in Kamaljit Singh v. State of Punjab: (2003) 12 SCC 155 in the following fashion :

8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to complete rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See Solanki Chimnbhai Ukabhai v. State of Gujarat (1983) 2 SCC 174). The position was illuminatingly and exhaustively reiterated in State of U.P. vs. Krishna Gopal :(1988) 4 SCC 302. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High court cannot in this case be found fault with for its well-merited

CRI.APPEAL.508.03

interference."

The Hon'ble Supreme Court held by the that the testimony of

injured witness is accorded a special status in law. It is as a consequence of

fact that injury to the witness is an inbuilt guarantee of his presence at the

scene of crime and because the injured witness will not want to let his actual

assailant to go unpunished merely to falsely implicate a third party for the

commission of offence. Thus, the deposition of injured witness should be relied

upon unless there are strong grounds for rejection of his evidence on basis of

major contradictions and discrepancies therein.

12. With regard to the seizure of the weapon, the prosecution has

examined PW6 Ganesh Thakre. According to PW6 on 1 st February 2000 he

was called by police to act as a panch. In his presence, the appellant made a

statement that he had thrown the knife in the lane situated behind his house.

The memorandum panchnama was drawn accordingly. Thereafter PW6 along

with the appellant, police other persons proceeded to the house of the

appellant. Thereafter along with appellant they went to the lane situated

behind his house. The appellant then took out the knife from that land, which

was having an iron handle with stains of blood. The police seized the said

knife under Panchnama (Exh.32). Panchnama depicts that it was narrow lane

of three feet wide, behind the house of appellant. The testimony of PW6 is

not shattered in cross-examination. However, the said recovery cannot be

termed as discovery of the knife u/s 27 of the Evidence Act, which was found

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in the lane, which place is accessible to the general public.

13. On careful scrutiny of the evidence on record, it is amply clear

that the appellant had assaulted PW8-Vijay on the left side of his chest. No

doubt, PW8 was unable to give description of the weapon. However his

testimony is corroborated by the testimony of PW 7-Atul, who is his friend. The

FIR (Exh.36) too is in consonance with the testimony of PW8, which was

lodged immediately after the incident. The Medical Officer has explained the

injuries recovered by the victim, the injury was simple in nature as stated by

Medical officer and it was muscle deep. Moreover, the Medical officer has

opined that the said injury can be caused by the knife produced before the

Court. The CA report supports the case of the prosecution that bloodstains

which were found on the weapon were of the blood group of PW8. Thus, the

prosecution has proved its case beyond reasonable doubt. The learned trial

Judge has rightly considered the evidence adduced on record. No illegality,

perversity or irregularity is noticed in the judgment and order delivered by the

learned trial Judge. Hence the following order :-

ORDER

i) Criminal Appeal No. 508/2003 is dismissed.

ii) The judgment and order dated 26.06.2003 passed in Sessions Trial No.

155/2000 delivered by the learned 2nd Additional Sessions Judge, Akola

convicting the appellant of the offence punishable under section 324 of the IPC

and sentencing him to suffer RI for two years and to pay a fine of Rs.1000/-,

CRI.APPEAL.508.03

in default, to suffer RI for one month, is maintained.

iii) The appellant who is on bail, shall surrender to his bail bond, within

four weeks, to serve out the remaining part of the sentence.

(iv) The muddemal property, if any, be destroyed after the appeal period is

over.

JUDGE

Sahare