Bombay High Court
Padmakar Gomaji Gajbhiye And ... vs The State Of Mah. Thr. Pso Nagpur on 13 September, 2017
Bench: Swapna Joshi
1 Judg 130917 apeal 560.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.560 of 2003
1] Padmakar Gomaji Gajbhiye,
aged about 25 years,
2] Nandkishor Bhaurao Bondare,
aged about 23 years,
Both r/o Valni Wasti, Khaerkheda,
Distt- Nagpur (at present Central Jail,
Nagpur since 8-8-2003) .... Appellants.
-Versus-
The State of Maharashtra,
through P.S.O. PS Khaparkheda, Nagpur. .... Respondent.
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Mr. S.B. Bissa, Additional Public Prosecutor for State.
None for the appellants.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 13
September, 2017.
ORAL JUDGMENT
This appeal has been preferred by the appellants
(hereinafter will be referred as 'the accused') against the judgment and
th
order passed by the learned 6 Adhoc Additional Sessions Judge,
Nagpur in Sessions Trial No.96 of 2000 delivered on 08-08-2003, whereby
the learned trial Judge had convicted the accused persons for the offence
punishable under Section 307 r/w 34 of the Indian Penal Code and were
2 Judg 130917 apeal 560.03.odt
sentenced to suffer rigorous imprisonment for five years and to pay a fine
of Rs.1500/- each, in default, to suffer rigorous imprisonment for six
months.
2] The learned trial Judge had further convicted the accused
persons for the offence punishable under Section 324 r/w 34 of the Indian
Penal Code and were sentenced to suffer rigorous imprisonment for one
year and to pay a fine of Rs.500/- each, in default, to suffer simple
imprisonment for two months.
3] I have heard Mr. S.B. Bissa, the learned Additional Public
Prosecutor for the State. The appellants and their Counsel remained
absent. With the assistance of the learned APP, I have carefully gone
through the record of the prosecution case.
4] The facts leading to prefer this appeal can be summarised as
under :-
In the year 1999 victim PW-5-Shrikrishna was residing at
village Valni along with his family. The accused are also residents of the
same village. PW-2-Chhatrapati is the brother of PW-5. The house of
PW-2 was adjacent to the house of PW-5. At about 10.15 pm when
PW-5, reached to his house, one Vinod was talking to his wife. One
Dhondba Chakle was with the complainant. PW-5 asked Vinod as to why
he had gone there. On this he informed that his wife told him to bring
sugar and accordingly he has brought the sugar. At that time, Padmakar
(accused no.1) and Nandkishore (accused no.2) came to the house of
PW-5 and they caught hold of neck of Vinod and started abusing Vinod.
3 Judg 130917 apeal 560.03.odt
PW-5 asked the accused persons not to abuse Vinod in front of his
house. At that time Nandkishore (accused no.2) caught hold of the waist
of the PW-5 and Padmakar (accused no.1) started assaulting PW-5 by
means of sword on his head. PW-5 tried to resist the blows given by the
Padmakar (accused no.1). Due to which he received the injury on his right
hand palm. At the relevant time, PW-2-Chhatrapati arrived at the place of
incident. He tried to rescue PW-5. Both the accused started assaulting
PW-2-Chhatrapati by means of sword. PW-2-Chhatrapati resisted the
said blow. Therefore, the said sword hit to his finger of right hand.
Thereafter, the accused persons fled away. Since PW-5-Shrikrishna
was critically injured, he fell unconscious on the spot.
5] It is the case of the prosecution that two and half years prior
to the incident, PW-5- Shrikrishna had borrowed the amount of Rs. 60/-
from Padmakar (accused no.1). However, he could not repay the said
amount as there was demand from Padmakar (accused no.1), the scuffle
took place between PW-1 and Padmakar (accused no.1) and since then
they were not in talking terms with each other. It is also the case of the
prosecution that about one and half months prior to the incident, PW-5-
Shrikrishna asked the father of Nandkishor (accused no.2) to bring
fishes, however, as he did not bring those fishes, on that count, there was
altercation between PW-5 and the father of Nandkishore (accused no.2).
As per the prosecution case, in order to take revenge, the accused
persons had assaulted PW-5, at the instance of one Ashok Chandurkar
and the said Ashok had threatened PW-5 to assault him.
4 Judg 130917 apeal 560.03.odt
6] As PW-5-Shrikrishna had received injuries, he was
immediately shifted to W.C.L. Hospital at Valni. In the meantime, PW-2-
Chhatrapati proceeded to the Khaperkheda Police Station and lodged
his complaint (Exhibit-26). At the relevant time, PW-7-PSI-Suresh
Gangulwar was attached to Khaperkheda Police Station. On the basis of
complaint (Exhibit-26), he registered the offence.
7] PW-7 proceeded to Government Medical College and
Hospital, Nagpur. On the next day, he recorded the statement of PW-5 in
the Government Medical College and Hospital, Nagpur. He then recorded
the spot panchanama (Exhibit-41) of the place of incident. He took one
sword, bed sheet and blood mixed soil from the Chhapari of the
complainant vide seizure panchanama (Exhibit-42). The place of incident
was the courtyard of PW-2-Chhatrpati (complainant). PW-5- Shrikrishna
was hospitalized from 20-7-1999 to 04-08-1999 in the Government
Medical College and Hospital, Nagpur. He took treatment at Super
Specialty Hospital, Nagpur.
8] PW-5 was operated at Government Medical College and
Hospital, Nagpur. PW-7 recorded the statements of other witnesses. He
sent seized articles to the Chemical Analyser's office. The CA reports are
at Exhibits-56 to 59. After completion of the investigation, chargesheet
was submitted in the Court of learned JMFC. The case was committed to
the Court of Sessions. The learned trial Judge framed the charge and on
hearing and on conducting the trial, on appreciation of the evidence and
hearing both the sides, the learned trial Judge has convicted the accused
5 Judg 130917 apeal 560.03.odt
persons as aforesaid. Hence, this appeal.
9] The learned APP contended that the learned trial Judge had
considered the testimony of the victim as well as the eye witnesses and
the medical evidence and rightly convicted the accused persons. The
learned APP further submitted that although there is discrepancy in the
ocular testimony & the medical evidence, it would be proper to rely upon
the testimony of injured as well as the eye witnesses and according to the
APP, in this manner, the prosecution has proved its case and accused
persons are rightly convicted by the learned trial Judge.
10] In order to bring home the guilt of the accused, the
prosecution has heavily relied upon the testimony of PW-2-Chhatrapati
who is the complainant and eye witness, PW-4-Ramrao who was the
panch witness, PW-5- Shrikrishna (Injured), PW-6-Nilima, the wife of
PW-5 and PW-7-Suresh, who was the investigating officer.
11] PW-5- Shrikrishna has deposed that, on 19-07-1999, at
about 10.15 pm, he reached his house along with Dhondba. At that time,
Vinod had visited his house as the wife of PW-5-Shrikrishna asked him to
bring sugar and accordingly he had brought sugar. At that time, both the
accused came to the house of PW-5. They caught hold of neck of Vinod
and started abusing him. PW-5 asked them not to abuse him. At that
time, Nandkishore (accused no.2) suddenly caught hold of the waist of
PW-5. Padmakar (accused no.1) started assaulting PW-5 by means of
sword on his head. He dealt with three blows of sword on his head.
However, he tried to resist the blows given by Padmakar (accused no.1).
6 Judg 130917 apeal 560.03.odt
Therefore, he received injury on his right hand palm. PW-5 stated that he
sustained injury to his head. In the meantime, his brother PW-2-
Chhatrapati arrived at the place of incident. PW-2 tried to rescue him.
Thereafter, both the accused started assaulting PW-2-Chhatrapati by
means of sword. As PW-2-Chhatrapati resisted the blows given by the
accused persons, the said sword hit to the right hand finger of PW-2-
Chhatrapati. PW-5 stated that they shouted for help, therefore, the
villagers gathered on the spot. In the meantime, the accused persons
fled away from the spot leaving the sword at that place. According to
PW-5, the alleged incident had taken place in the courtyard of his house.
and there were blood stains at the place of incident as well as in the
varandah of the house of PW-2.
12] According to PW-5 one and half years prior to the incident
he had taken an amount of Rs. 60/- from Padmakar (accused no.1).
However, he did not return the said amount to Padmakar (accused no.1)
and scuffle took place between him and Padmakar (accused no.1) on
account of the said money. Similarly, PW-5 told the father of
Nandkishore (accused no.2) namely Bhaurao to bring fishes for him.
He sold those fishes to someone else and did not give to PW-5. On that
count, the quarrel took place between PW-5 and Bhaurao.
13] PW-5 stated that he was taken to W.C.L. Hospital, Coal
Mines at Valni and from there he was shifted to Government Medical
College and Hospital, Nagpur. He was admitted there up to 21-07-1999.
He had undergone operation for those injuries sustained to his hand as
7 Judg 130917 apeal 560.03.odt
well as his head. Thereafter, he was taken to Super Specialty Hospital,
Nagpur. PW-5 identified before the Court, sword by which he was
assaulted (Article-3). He also identified the bed sheet (Article-2) which
was taken charge from the place of incident. During the cross
examination a contradiction was pointed to PW-5 to the effect that, at the
instigation of Ashok PW-5 was assaulted and 8 to 9 months prior to the
incident Ashok had threatened to assault him. Thus, the defence tried to
point out that, on the instigation of Ashok, he was assaulted. However,
the fact remains that the allegations were made by PW-5 against the
accused persons who allegedly assaulted him on the date of incident.
14] Surprisingly, in the cross examination, the case was put up
to PW-5 that on the day of incident both the accused came near his
house. PW-5 admitted in the cross examination that Padmakar (accused
no.1) took out the sword from the back side of his shirt and at that time
he was (PW-5) at a distance of two and half feet from him and his back
was towards the door of his house and Nandkishore (accused no.2) was
standing near accused no.1. In my opinion, the said discrepancy does not
go to the root of the case as the fact remains that PW-5 has consistently
stated that Padmakar (accused no.1) assaulted him by means of sword.
Thus the testimony of PW-5 is not shattered in his exhaustive cross
examination.
15] The case was put up by the defence that prior to the incident
he had assaulted Padmakar (accused no.1) and he was critically injured
to PW-5. PW-5 also denied that he along with his brother PW-2-
8 Judg 130917 apeal 560.03.odt
Chhatrapati is doing the business of country liquor at his house and both
the accused used to give information to the Police about the illicit business
of country liquor of PW-2. PW-5 further denied that on the day of
incident the accused persons were proceeding from his house, PW-5
and PW-2- Chhatrapati saw them and decided to assault them and his
brother PW-2-Chhatrapati had brought sword and a scuffle took place
between PW-5 and his brother with both the accused. Thus, a case was
put up to PW-5 that during scuffle with the accused persons he received
injury by means of sword. PW-5 stubbornly denied the same.
16] On careful scrutiny of PW-5 it is seen that his testimony is
cogent, consistent and reliable. His testimony corroborates with the eye
witness PW-2- Shrikrishna. It will be relevant to refer the evidence of
PW-2 who is the complainant as well as the eye witness to the incident.
PW-2 who is the brother of PW-5 stated that, he along with his wife and
parents were residing together and PW-5 and his wife were residing
separately in the same house. According to him, at about 10.15 pm. he
was having his dinner along with his father. At that time, he heard the
shouts of PW-5- Shrikrishna as "/kkok js /kkok jsÞ. He immediately came out
of his house. He himself and his wife also followed him. He saw
Nandkishore (accused no.2) caught hold of waist of PW-5 and Padmakar
(accused no.2) was assaulting PW-5 by means of sword on his head. As
a result of which, PW-5 sustained bleeding injuries on his head. PW-2
resisted the blow given by Padmakar (accused no.1) so that the sword
hit to the finger of his right hand. PW-5, however, collapsed on the
9 Judg 130917 apeal 560.03.odt
ground. In the meantime, both the accused fled away from the spot. The
brothers of PW-2 namely Suresh and Mulchand took PW-5- Shrikrishna
to the Western Coalfields Hospital at Walni. PW-5 proceeded to the
Khaperkheda Police Station to lodge the report.
17] PW-2-Chhatrapati stated that on the next day of incident, the
Police visited the place of incident and took charge of bed sheet on which
PW-5 was led down. He further stated that the Police took charge of
sword which the accused persons had left on the spot before fleeing
away and the aid sword stains with blood. PW-2 identified the sword
(Article-3). Few improvements were pointed to PW-2 which he had made
in his complaint and which he had made in his deposition before the
Court to the effect that, when he came out of the house he saw
Nandkishore (accused no.2) holding waist of Shrikrishna and Padmakar
(accused no.1) giving blows by means of sword on his head. It was also
an improvement pointed that, one year prior to the incident, quarrel had
taken place between Shrikrishna and accused persons. It was also
pointed to PW-2 that he had made an improvement in his evidence
before the Court that the accused left sword on the spot.
18] In my opinion, all these discrepancies do not go to the root
of the case and the fact remains that PW-5 as well as PW-2 who are the
injured persons have categorically stated before the Court that they have
received injuries due to the assault by sword. The defence has produced
the medical certificates of the victim as well as PW-2 (Exhibits-11 to 14) on
record. There is no specific opinion of the Medical Officer that during the
10 Judg 130917 apeal 560.03.odt
scuffle the injuries explained in the medical certificate (Exhibit-15) dated
19-07-1999 are possible. Similarly, the suggestions are given to the
witness about the rivalry. However, in my opinion, only because of the
said rivalry, the victims PW-2 and PW-5 would not falsely implicate the
accused persons in the present case. Under normal circumstances, the
victim of such serious assault would not shield the real culprit and falsely
implicate the others who are not involved in the said offence. The
testimony PW-2 is corroborated with the testimony of PW-5 in all material
particulars.
19] No doubt the medical papers (Exhibits 11 to 14) were
admitted by the defence. So far as the injuries received by PW-2-
Chhatrapati are concerned, the injury certificate dated 12-07-1999
(Exhibit-12) indicates that, there were following injuries.
"1) Right hand below the thum 3cm x 1cm x 2cm.
The wound are in side.
2) Middle finger of right hand upper inside.
Laceration 1 cm x 1 cm.
3) Lacerated wound an r cast to middle finger
2 cm x 1 cm upper side.
4) Abrasion on right knee joint as right lap
3 cm x 3 cm
I/m-Hilled wound scar on right side of cheeks."
20] According to the Medical Officer, those injures were simple
in nature and caused due to sharp and hard object and the age of injury
was 12 to 14 hours.
21] As regards the Medical Certificate of PW-5-Shrikrishna
(Exhibit-15) dated 19-07-1999 is concerned, it reveals the following
11 Judg 130917 apeal 560.03.odt
injuries :-
"1. Lacerated wound over -head
6 finger X 1/2-3/4 inch deep
2. Lacerated wound over scalp
3 finger ½ inch deep
3. Lacerated wound over right palm
about 6 finger x ½ -3/4 inch deep."
22] The said medical examination was done by Dr. S.S. Shukla
in WCL Hospital at Valni. It appears that those injures were examined by
the Medical Officer Dr. Shukla immediately after the incident, which
occurred at about 10.15 pm and the medical examination was conducted
at 10.30 pm. Further PW-5-Shrikrishna was referred immediately to
Government Medical College and Hospital, Nagpur. The Medical Officer
at Government Medical College and Hospital, Nagpur examined PW-5 on
21-07-1999 and found the following injures (Exhibit-11).
"1. Compound depressed fracture on frontal bone.
2. Lacerated wound on right palm.
3. Incised wound on middle finger,
4. Fracture of nazal bone,
5. Fracture of zygoma with lacerated wound."
23] The Medical Certificate (Exhibit-11) dated 21-07-1999
reveals that the injuries were caused by hard and blunt object. On
perusal of Medical Certificate of PW-5, it appears that there are
discrepancies in the description of the injuries sustained by PW-5.
12 Judg 130917 apeal 560.03.odt
However, in this context the law is well settled that when there is
discrepancy in ocular testimony of medical evidence the ocular testimony
prevails.
24] In case of Baleshwar Mahto and another v State of Bihar and
another, reported at (2017) 3 SCC 152, the Hon'ble apex Court has held
as under :-
".......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 completely rule out all possibilities
whatsoever of injuries taking place in the manner
stated by eyewitnesses, the testimony of
eyewitnesses cannot be thrown out."
It is further held that -
"......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 third party for the
commission of offence. Thus, 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."
25] In view of the said guidelines by the Hon'ble apex Court, the
testimony of PW-2 and PW-5 prevails over the medical evidence. There
is nothing to doubt the testimony of witnesses and their testimony is
reliable, cogent and trustworthy.
26] On the point of seizure panchamana, place of incident and
13 Judg 130917 apeal 560.03.odt
seizure of sword from the spot, the prosecution placed reliance upon the
testimony of PW-4. PW-4-Ramrao has categorically deposed that, on
20-07-1999, in his presence the Police recorded the spot panchanama
and he noticed the blood stains on the spot of incident. The police took
charge of one bed sheet and one sword lying on the spot. The police
prepared spot panahcnana (Exhibit-41). The Police also seized the
clothes of Padmakar (accused no.1) (Exhibit-7) and the clothes of
Nandkishore (accused no.2) (Exhibit -8) which are admitted by the
defence.
27] It is worthy to note that CA report indicates blood stains on
the clothes of accused person. There is no explanation coming forward
on record as to how the blood stains were on the clothes of accused
persons. The said fact indicates the presence of the accused persons at
the place of incident and their involvement in the offence. From the
careful scrutiny of the entire testimony of the prosecution witnesses, it is
held that the prosecution has proved its case beyond reasonable doubt.
28] In my opinion, the learned trial Judge had properly
appreciated the facts brought on record by the prosecution. In view of
the fact that, the learned trial Judge has rightly appreciated the evidence
brought on record and rightly passed the order, consequently, the appeal
fails and it is liable to be dismissed. Hence, the following order is passed:-
O r d e r
(a) Criminal Appeal No.560 of 2003 is dismissed.
14 Judg 130917 apeal 560.03.odt
(b) The judgment and order dated 13-12-2002 delivered
th
by learned 6 Adhoc Additional Sessions Judge,
Nagpur in Sessions Trial No.96 of 2000 delivered on
08-08-2003 stands confirmed.
(c) The judgment and order passed by the learned
th
6 Adhoc Additional Sessions Judge, Nagpur in
Sessions Trial No.96 of 2000, convicting the accused
persons for the offence punishable under Section 307
r/w 34 of the Indian Penal Code and sentenced to
suffer rigorous imprisonment for five years and to pay
a fine of Rs.1500/- each, in default, to suffer rigorous
imprisonment for six months and for the offence
punishable under Section 324 r/w 34 of the Indian
Penal Code sentenced to suffer rigorous
imprisonment for one year and to pay a fine of
Rs.500/- each, in default, to suffer simple
imprisonment for two months, is maintained.
(d) The appellants/accused are on bail. Their bail bonds
stand cancelled. They be directed to surrender
th
before the learned 6 Adhoc Additional Sessions
Judge, Nagpur to undergo the remaining period of
sentence. If they do not surrender within a period
of four weeks from today, the learned trial Court is
directed to take appropriate action in accordance
15 Judg 130917 apeal 560.03.odt
with law.
(e) Muddemal property be dealt with as directed by
trial Court after the appeal period is over.
JUDGE
Deshmukh
