Sukhedeo Ganpat Selokar vs State Of Mah. Thr. Pso, Ps ...
2017 Latest Caselaw 6920 Bom

                                                                                             CRI.APPEAL.481.03\
                                                             1


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

                             CRIMINAL APPEAL NO. 481/2003 

          Sukhdeo s/o Ganpat Selokar 
          Aged about 48 years 
          R/o Kurza, Police Station:Brahmapuri
          Dist. Chandrapur.                                                          ...       APPELLANT 

                     v e r s u s

          The State of Maharashtra 
          Through Police Station Officer 
          Police Station,Bramhapuri 
          Dist. Chandrapur                                                           ...       RESPONDENT

...........................................................................................................................
           Shri S.V. Sirpurkar,  Advocate for the appellant 
           Shri N.H. Joshi,  Additional  Public Prosecutor for respondent-State
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED :     08th September, 2017
ORAL  JUDGMENT: 

The appellant/accused has preferred the present Appeal against

the judgment and order dated 17.06.2003 in Sessions Case No.191/1996

delivered by the learned Additional Sessions Judge, Chandrapur, thereby

convicting the appellant under Section 307 of the Indian Penal Code and

sentencing him to suffer R.I. for three years and to pay a fine of Rs. 3000/-, in

default, to suffer RI for six months.

2. The prosecution case in nutshell can be stated thus :

Complainant-Kusumbai w/o Gangadhar Kawale (PW10) is the

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resident of village Kurza Kanhar-Shivar. The appellant-Sukhdeo ( hereinafter

referred to as " the accused") is also the resident of the same village and he is

the real brother of the complainant. The mother of the complainant was

residing with her. PW10 has two more brothers, namely, Rameshwar and

Digambar. After death of their father, the agricultural land was partitioned

and was equally distributed amongst mother-Manabai and her children. PW10

was allotted one acre of land. On the date of the incident i.e. 29.7.1996, the

complainant went to her field for carrying out weeding operation. At about 11

or 11.30 a.m. PW 10 said to her sister-in-law Ranjana (wife of the accused)

as to why she had quarreled with her mother by hurling certain allegations

against her, on the previous day. On this, Ranjana sent her daughter who was

with her for calling the accused to the field. The accused arrived at the field

at about 1.00 p.m. At that time, the complainant was present in her field. It is

the case of the prosecution that the accused was carrying one suri (big

knife/dagger) with him and suddenly attacked PW10 by blows of suri on her

head, hands, left cheek, near elbow of her left hand lower portion of her left

thigh and right wrist. As a result, she fell down. PW10 received serious injuries

on her body. The accused then sat on the person of PW10 and tried to

strangulate her and he pulled her hair and gave kick blows. There were few

ladies working in the adjacent filed. Nobody came to the rescue of PW10. Out

of desperation, PW10 said to the accused if he desired to take her life he

should do so once for all. At the relevant time, one Anil Diwate arrived at the

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place of the incident and thereafter the accused allowed the complainant to

leave that place. Thereafter, Anil Diwate took PW10 to her house and from

there a labourer, by name, Laxman Tikale took her to the hospital and

admitted her there.

3. At the relevant time, PSI D.R. Narnaware was attached to

Police Station, Bramhapuri, as PSI. In the afternoon, he received a phone call

from one Ajay from Ashok Bhaiyya's Rice Mill that one woman had been

attacked by means of a suri and she was being taken to the hospital. On receipt

of the said message, PW13-Narnaware immediately along with his staff

proceeded to Rural Hospital, Bramhapuri. He recorded the statement of PW

10 and made enquiry with the Doctor as regards the injuries caused to her.

The doctor examined PW10 and issued his injury certificate (Exh.29). PW 13

then registered the offence vide Crime No.82/1996 for offence punishable u/s

307 IPC. On the next day i.e. 30.7.1996, he recorded the panchnama of place

of the incident. He took charge of the clothes of the victim PW10 under

Panchnama (Exh.24). He took the blood samples of the victim. On the same he

he arrested the accused. The blood samples of the accused were taken under

Panchnama (Exh.23) on 30.7.1996. In the presence of Panchas the accused

made a voluntary statement and showed his willingness to point out the place

where he has concealed the suri. Accordingly, memorandum panchnama was

drawn (Exh.18). The accused then pointed out one agricultural field in village

Kurza. He took the police and the panchas to one Dhura in the field from

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which he took out one suri concealed there. The said suri was taken charge

by the police under panchnama (Exh.19)-suri article-1. PW13 recorded the

statements of the witnesses. On completion of investigation he filed charge

sheet against the accused in the Court of learned Judicial Magistrate First

Class. The case was committed to the Court of Sessions. The learned trial

Judge after conducting the trial, on analysis of the evidence and hearing both

the sides, convicted the accused, as aforesaid. Hence, the present Appeal.

4. I have heard Shri S.V.Sirpurkar, the learned counsel for the

appellant and Shri N.H. Joshi, the learned Additional Public Prosecutor. I

have carefully gone through the record of the case.

5. Shri Sirpurkar, vehemently argued that the learned trial Judge

has passed the illegal and perverse order, inasmuch as he has not considered

the improvements in the testimony of the victim PW10-Kusumbai, who is the

sole eye witness to the incident. He further contended that the testimony of

PW10-Kusumbai does not inspire confidence as such and, therefore, it cannot

be said that the prosecution has proved that it was the accused who assaulted

the victim PW10. He pointed out that the statement of the victim was read

over to her by the learned Public Prosecutor prior to entering into the witness

box and such testimony of the victim should not be accepted by this Court. It

is further stated that the prosecution has failed to examine the material

witness-Bhagwant to whom PW 10 has referred in her complaint. He further

submitted that even the recovery of the weapon has not been established by

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the prosecution as the said seizure of the weapon cannot be termed as

discovery u/s 27 of the Evidence Act, as it was embedded in the dhura of the

field, as as per the version of PW10. Shri Sirpurkar, submitted that such

recovery of the weapon cannot be said to be at the instance of the accused

and the recovery of the weapon itself is as such doubtful. He further pointed

out that no report of the said weapon was sought from the Medical Officer as

to whether the injury received by the victim can be caused by the said

weapon. It was submitted that assuming the accused is the author of the

injuries caused to the victim, in that case, it does not attract the provisions of

section 307 of IPC.

6. Per contra, Shri N.H.Joshi, the learned A.P.P. contended that the

discrepancies pointed out by the defence in the testimony of the victim are

minor discrepancies which do not go to the root of the case at all. According

to him, the learned trial Judge has rightly come to the conclusion that the sole

testimony of the PW10 is reliable, cogent and trustworthy and, as such,

convicted the accused.

7. It is well-settled by now that the testimony of the sole eye

witness can be relied upon provided it is reliable, cogent and trustworthy. It is

always prudent to find some corroboration to the testimony of the solitary

witness. It will be relevant to refer to the evidence of PW 10 who is the victim

of the assault as well as the complainant in the instant case.

8. According to PW10-Kusumbai, the accused is her younger

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brother. The incident took place about six years back. It was Monday. On the

day of the incident, she went alone to the field of her mother at Kurza for

weeding operation in the field. The agricultural field of the accused is

adjacent to the dhura of the field of her mother. At about 11 to 11.30 am, the

wife of the accused, namely, Ranjana along with 4 to 5 women were

proceedings towards the Dhura to the field of accused. At that time, she asked

Ranjana, as to why she had quarreled with her mother on the previous day.

Thereafter Ranjana sent her daughter to the house for calling the accused-

Sukhdeo. At about 1.00 p.m. the accused arrived at the field where PW10 was

working and suddenly inflicted two blows of suri on her head, as a result

she fell down on the ground and raised her both the hands in defence. The

accused gave blows of suri on both her hands, neck, waist portion and her

thigh. Then the accused has caught hold of her hair and said that he would

throw her into the well. The accused then dragged by pulling her hair. The

accused then gave blows and said to her that he would kill him "Janse marto".

PW 10 then asked the accused to give a glass for water, however he refused

and abused her filthily. Thereafter one Bhagwant arrived at that place. He

made her to sit on the dhura. He offered water to her. Thereafter accused

Sukhdeo ran away and Bhagwant also disappeared. PW10-Kusumbai stated

that Sukhdeo fixed the suri into dhura and he went towards his wife.

Thereafter Anil Diwate (PW6) arrived at that place. PW 10 requested him to

take her to home. He wrapped up her saree around her, tie dupatta over her

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head and brought her on his back up to the road and then making her ride

his bicycle brought her home. PW10-Kusumbai was then taken to Government

Hospital at Brahmapuri by one Tikale. She was examined by Medical officer

at that place, who referred her to Nagpur. The police recorded her statement.

PW10 described the suri carried by the accused as half-hand long. She stated

that it has a handle and the blade is about 4 feet wide which comes to 2.5

inches to 3 inches. PW 10 identified the suri (article-1) and said that suri

means sword, which indicates that there is no discrepancy as such in the

weapon identified by her.

9. PW10-Kusumbai was subjected to exhaustive cross-examination.

It was suggested to PW 10 that on the date of the incident a quarrel took

place between her and Ranjana and there was scuffle between them. PW 10

admitted the said suggestion. It was further put up to PW10 that in the said

scuffle she ran after Ranjana with a sickle in her hand and Ranjana suffered

injury at her hands by the said sickle. PW10 denied the suggestion put up by

the defence to the effect that in the said scuffle she ran away towards

Ranjana with a sickle in her hand, in the said scuffle Ranjana suffered injury

at her hands and she herself also suffered injury due to the said sickle. PW 10

denied that because of the injury Ranjana started shouting loudly and in

order to save Ranjana Sukhdeo came on the spot. The testimony of PW10

indicates that there was a quarrel as well as scuffle between PW10 and

Ranjana. Interestingly, it was suggested to PW10 that because of the said

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injury, Ranjana started shouting loudly and Sukhdeo (accused) came to the

spot for saving Ranjana. The said suggestion confirms the presence of the

accused at the the place of the incident. Few improvements were pointed out

in the statement of PW 10 to the effect that she raised both her hands in

defence and that the accused gave a blow of suri on her neck. The accused

dragged her by pulling her hair up to 50 to 60 feet towards the well. PW 10

improved her statement by saying that she asked accused to give her a glass of

water and thereupon the accused filthily abused. An improvement is also

pointed out in the statement of PW10 that thereafter Bhagwant arrived at the

spot and made her to sit on dhura and offered her water and after that

Bhagwant disappeared. In my opinion, the said improvement is not relevant

as such because Bhagwant has not been examined by the prosecution. One

more important improvement was pointed out in the version of PW10 that

Sukhdeo fixed suri into dhura. PW 10 also made an improvement by saying

that Anil Diwate helped her to wrap up the saree, tie dupatta over her head

and he bought her on his back.

10. On careful scrutiny of the testimony of the victim it is noticed

that the discrepancies do not go to the root of the matter and shake the basic

version of the victim, when all the probability factors are in favour of the

version narrated by PW10. It is significant to note that in the testimony of

victim itself, it has come on record that the victim was carried to the hospital

by one Tikale and her complaint was recorded in the hospital which is at

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Exh. 47.

11. The learned counsel for appellant, Mr.Sirpurkar, placed reliance

upon the judgment in the case of Suresh Ashtankar vs. State of Maharashtra

reported in 2015 All MR 4243 wherein the Division Bench of this Court

relied upon the judgment of the Single Bench of this Court, reported in 2007

All MR (Cri) 352, wherein it is observed,

"32. .................There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by police. It would not be permissible for such witness to strealthily refresh his memory before entering the court and deposing about the entire evidence giving minute details as if he was reeling them out from his memory. Therefore, the objection to the reliability of evidence of PW2-Prabhakar taken by the learned Counsel for the appellant is valid."

In the instant case, the statement was allegedly read over by

the 'Public Prosecutor' as per the testimony of PW10, recorded in English

language. Whereas the testimony of victim which was recorded in vernacular,

the words 'Public Prosecutor' are missing. It creates a doubt regarding the

Public Prosecutor reading over the statement to the victim prior to recording

her evidence.. In the above-cited case, the witness was read over his statement

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by police prior to recording his evidence and he was told to tender his

evidence as per his statement. In the instant case, it is not proved beyond

reasonable doubt, whether the Public Prosecutor read over the statement to

the victim prior to her stepping into the witness box. Moreover, considering the

improvements and the embellishments in the testimony of the victim, it does

not appear that she was tutored.

12. The testimony of the victim is in consonance with the contents in

the FIR (Exh.47), which was lodged immediately and corroborated on all

material particulars. The accused is the real brother of victim. There was no

reason for the victim to falsely implicate her real brother in this case. No

doubt, it is brought on record that there was scuffle between Ranjana and the

victim, however there is no convincing evidence on record to show that during

the said scuffle, victim was carrying sickle and she received injury by means of

sickle. PW10-victim specifically denied the said suggestion given to her. The

defence has not examined any witness in support of its case. Thus, PW10 is

found to be a reliable and trustworthy witness.

13. The testimony of PW4-Ajay Bhattad, indicates that when he was

working as a Manager of the Rice Mill of one Ashok Bhaiyya at Kurza, one

mill worker informed him about the incident of assault and he requested him

to inform the same to the Police Station telephonically. Accordingly he made a

phone call to the Police Station, Bramhapuri and gave information about the

incident which occurred at Kurza. Further, testimony of PW13-Narnaware

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(PSI) shows that at the relevant time, PSI Dhanraj Narnaware was posted

at Brahmapuri. In the afternoon, he received a phone call from Ashok

Bhaiyya's Rice Mill at Kurza that one woman had received stab injury of suri

and that she was being taken to the hospital. Therefore, he immediately

reached the Rural Hospital, Brahmapuri along with staff members. He

recorded the statement of the victim and obtained her thumb impression. On

the basis of the said report (Exh.47), PW 13 registered the offence.

14. In order to prove the injuries sustained by the victim, the

prosecution has relied upon the testimony of Medical Officer PW7-Dr.

Makarand Pimpalkar, who issued the medical certificate (Exh.29). PW7

examined the victim and found the following injuries :-

"1. Incised wound on anterior aspect of right forearm of size 4" x 1/4' and 1/4 deep.

2. Incised wound on head of size 4" x 1/4" and bone deep at parietal bone region, just left to midline.

3. Incised wound of size 2"x1/4" and 1/4" deep on medial aspect of thumb of upper limb, medial aspect on right side.

4. incised wound of size 2" x 1/4" and 1/4" deep on posterior aspect of left forearm.

5. Incised wound with suspected compound fracture of left hand fingers.

6. Incised wound on lateral side of left thigh on lower part of it of size 3" x 1/4" and 1/4" deep.

7. Suspected head injury, contusion or compression. "

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PW 7-Dr.Pimpalkar, opined that the injuries were grievous in

nature and could have been caused by sharp and hard weapon or instrument.

On seeing article-1 sharp and hard object, he opined that the above-referred

injuries can be caused by the said article, it being a sharp and hard object.

15. The same Medical Officer also examined the accused and found

the following injury :

"Abrasion on right index finger of upper limb of size 2" x1" on lateral aspect of it."

PW7 opined that the said injury was simple in nature. He issued

the medical certificate to that effect which is at Exh.30. The Medical officer

stated that a query was made to him in respect of one sword sent to him

through Police constable and he opined that the wound described in Exh.29

could be caused by the said sword. The said report is at Exh.31. When a

question was put to the Medical Officer as to why he has termed the injuries as

"grievous", he replied that grievous hurt or grievous injury has not been

defined anywhere in the medical jurisprudence. However it is defined in

Modi's Jurisprudence. He further opined that all those injuries were grievous

in nature for the reason that they were all incise wounds. He further admitted

that he had not made mention in Exh.29 that any injuries described therein

were such as endangering the human life. Similarly, he admitted that the

nature of the injuries i.e. grievous or simple is also not mentioned in Exh.29.

The Medical Officer also admitted that no query to the effect that the article-1

is used by anybody for hitting other persons, the injury like one mentioned in

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Exh. 30 can be caused or not was made to him by PSO. However in this

context,the Medical Officer has stated that though the above-referred injuries

can be caused by article-1 being sharp and hard object. The testimony of

Medical Officer, no doubt, does not throw any light on the aspect whether

the injuries sustained by the victim was sufficient to cause death or not. The

Medical Officer has, however, termed the injury as grievous. It is significant to

note that though the Medical Officer has not given a specific opinion that the

injuries were sufficient to cause death, however when asked in the cross-

examination, he stated,"it is not true to say that as the injuries were not

dangerous to human life, I omitted to make such mention in Exh.29". As regards

the injury caused to the accused, it appears that he had received those

injuries at the time of incident.

16. The Hon'ble Apex Court in the case of State of Maharashtra vs.

Balram Patil, reported in 1983 CRI.L.J. 331 has, unequivocally observed

that,

9....... To justify a conviction u/s 307 it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there

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may be case in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."

17. So far as the contention of Mr.Sirpurkar that witnesses who were

at the place of incident are not examined by the prosecution, it may be noted

here that most of the eye witnesses have turned hostile. No one intervened

when the accused assaulted the victim who was a lady, aged about 46 years.

Normally, it is noticed that no one wants to interfere in the family disputes. So

also there is no impediment in relying upon the sole testimony of the victim if

it is found to be trustworthy. It would be advantageous to take recourse of the

decision reported in the case of Baleshwar Mahto and another vs. State of

Bihar and another, reported in (2017) 3 SCC 152, wherein the Hon'ble Apex

Court observed 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 go unpunished merely to falsely

implicate a third party for the commission of offence. Thus, deposition of

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injured witness should be relied upon unless there are strong grounds for

rejection of his evidence on basis of major contradictions and discrepancies

therein."

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 interference."

The testimony of the victim corroborates with the medical

evidence.

18. Admittedly, there was a quarel between the victim and her sister-

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in-law. Her sister-in-law sent her daughter to call the accused. On this the

accused came at the place of the incident with the weapon i.e. Suri (sword-

article-1) and thereafter the accused assaulted the victim which indicates that

the accused had an intention to commit murder of his sister. So also it has

also come on record that there was a property dispute between the brother

and sister. Thus, if the intention is present coupled with the overt act in

execution of such intention then, in my opinion, the offence u/s 307 IPC is

clearly made out. In such an offence even it is not necessary that bodily injury

capable of causing death should have been inflicted. The intention of the

offender can be logically deduced from the imposing circumstances, such as,

the weapon used by the accused, blow given on the vital part of the body,

nature of the injury etc. In this case, the blow was given on vital part of the

body i.e. head of the victim and the weapon which was used by him was a

suri (sword) which caused injury to the victim.

19. So far as the discovery of weapon is concerned, according to the

victim, the accused had after the incident, embedded the said weapon was

seized. The dhura of the field. According to the Investigating Officer, the

accused made voluntary statement that he is ready to point out the place

where has concealed the said weapon. Accordingly, the accused took out the

said weapon which was thrusted in the dhura and thereafter the weapon was

seized. The investigating officer has conducted the panchnama in that regard.

20. Mr. Sirpurkar, the learned counsel vehemently argued that the

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said recovery cannot be termed as discovery as such, as the said weapon was

not concealed and even the victim was aware of the fact that the weapon was

embedded in the dhura. There is certainly some substance in the contention of

Mr Sirpurkar and the said recovery cannot be termed as discovery as such

u/s 27 of the Evidence Act. The learned counsel Shri Sirpurkar contended that

the description of the weapon is not mentioned in the seizure panchnama

(Exh.19) which was recovery at the instance of the accused. Similarly, the

Doctor has not given a specific opinion that the injury was sufficient to cause

death so also there is nothing on record to show that for how many days the

victim was hospitalized. In these circumstances the Court can come to the

conclusion that there was no intention of the accused to commit murder of

his sister but his intention was, at the most, to hurt her. However, for the

reasons discussed above I am not convinced that the offence would fall in

Section 324 of the IPC but it would come under the provisions of Section 307

IPC.

21. In support of his contention, Mr. Sirpurkar placed reliance upon

Mahendra Pratap Singh vs. State of Uttar Pradesh, reported in (2009) 11 SCC

334, more particularly, paragraph No.52, which reads thus:

PW Chhotey Lal Tripathi, Inspector dispatched the rifle and bullets to the ballistic expert for their comparison. It is the the evidence of PW 11 Radhey Shamsingh, Firearm Expert, that he examined Rifle No. 243 of .302 bore which was deposited with the Scientific Branch of the Forensic Science Laboratory on 7.4.1975 by Constable Ram

CRI.APPEAL.481.03\

Chhabile, It is clear from the evidence of the ballistic expert that the rifle of .302 bore was sent to him for scientific analysis and not rifle of .315 bore which allegedly was used by the appellant at the time of commission of the offence and which later on was handed over to Head Constable Sukhram Singh, who sealed the same in the police station This discrepancy and inconsistency in regard to the use and recovery of the weapon of offence from the possession of the appellant is very vital to discard the truthfulness of the prosecution case."

In the instant case, the weapon which was used in the offence

was identified by the victim in Court. Similarly, the said weapon was

examined by him and he opined that the wound described in Exh.29 would be

caused by the sword.

22. Thus, the testimony of the victim which is found to be reliable

one, implicates the accused in the offence punishable u/s 307 of IPC. The

injury caused to the victim on vital part of the body i.e. head with a dangerous

weapon i.e. Sword, confirms that the accused had an intention to kill his

sister due to property dispute.

23. In view of the facts and circumstances of the case and

considering the law laid down, the offence against the appellant is proved.

The trial court has rightly convicted the accused under section 307 of the IPC.

Hence the following order:-

ORDER:

i)       Criminal Appeal No. 481/2003 is dismissed.





                                                                   CRI.APPEAL.481.03\



ii)       The   judgment   and   order   dated   17.06.2003   in   Sessions   Case   No.

191/1996 delivered by the learned Additional Sessions Judge, Chandrapur,

thereby convicting the appellant under Section 307 of the Indian Penal Code

and sentencing him to suffer R.I. for three years and to pay a fine of Rs.

3000/-, in default, to suffer RI for six months, 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