Chiranjilal Ruprao Bane vs State Of Mah.Thr.P.S.O.Dharni
2017 Latest Caselaw 7260 Bom

                                                                                                            CRI.APPEAL.655.03
                                                                       1


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

                                                 CRIMINAL APPEAL NO. 655/2003

            Chiranjilal Ruprao Bane
            Aged about 28 years, occu:Labour
            R/o Jutpani, Tq.Dharni, Dist. Amravati                                                ..           APPELLANT

                        versus

            The State of Maharashtra
            Through P.S.O.
            Police Station: Dharni
            Dist. Amravati.                                                                        ..         RESPONDENT

...............................................................................................................................................
            Mr.Sagar Katkar, Adv. h/for Mr. N.R.Saboo, counsel for the appellant
            Mr. S.B. Bissa, Additional Public Prosecutor for respondent -State
................................................................................................................................................

                                                                           CORAM: MRS.SWAPNA JOSHI, J.

DATED: 18th September, 2017

ORAL JUDGMENT:

Being aggrieved by the judgment and order dated 31.10.2003 in

Sessions Trial No.39/1996 delivered by the learned 1st Ad-hoc Additional Sessions

Judge, Achalpur, convicting the appellant (hereinafter referred to as 'the accused') for

the offence punishable under section 307 of the Indian Penal Code and sentencing him

to suffer R.I. for five years and to pay a fine of Rs.300/-, in default, to suffer R.I. for six

months, the present Appeal is filed.

2. Brief facts giving rise to the instant Appeal may be summarized as

under :-

CRI.APPEAL.655.03

The complainant-Ghanshyam Chavan (PW 5) is residing at village Jutpani

Tq. Dharni, Dist.Amravati. On 15.5.1995 at about 9.00 pm, when he was at home he heard

shouts as "I am assaulted, save me". Therefore, PW5-Ghanshyam came out of his house

and saw that in front of Hariram's house which is one house ahead of his house, Chiranjilal

(accused) who is the resident of the same village, was assaulting Hari Chavan (PW2) by

means of an axe. PW5,therefore, intervened in the scuffle. Hari sustained injury on his head

which was a bleeding injury and he fell down on the ground. PW5 asked the accused not to

assault Hari. On this, the accused dealt a blow of axe which stuck near the right eye of

PW2. PW5 then rushed to his house and proceeded to Police Station and lodged his

complaint (Exh.20). On the date of the incident, prior to the incident, at about 4.00 pm Hari

had consumed liquor and he went in front of the house of the accused and abused that his

sister-in-law is a prostitute. Over the said issue there was a quarrel between Hari and the

accused.

3. At the relevant time, ASI Rameshsingh Parihar (PW7) was attached to Police

Station, Dharni. He recorded the complaint of PW5 and on the basis of which registered the

offence. PW 7 then referred Ghanshyam (PW 5) to Rural Hospital, Dharni along with PW2.

Thereafter ASI Vishwanath (PW 9) proceeded to Jutpuri and brought Hari to Police Station,

Dharni. He then referred Hari to Rural Hospital, Dharni for medical treatment. PW9

registered the offence, then visited the place of the incident and recorded the spot

Panchnama, The wife of Hari, namely, Laxmibai (PW 3) produced one iron pipe and one

full pant. PW9 took charge of those articles under Panchnama (Exh.33). PW9 arrested the

accused and recorded the statements of witnesses. He took charge of clothes of injured

Hari under panchnama. On 22.5.1995 the accused showed his willingness to point out the

CRI.APPEAL.655.03

place where he had concealed the axe. The memorandum panchnama was drawn

accordingly. The accused took out the axe from the back-side roof of his house, the said

axe was taken charge by the police (Exh.29). All the seized articles were sent to C.A. office

for analysis. After completion of investigation, the charge sheet was filed in the Court of

learned JMFC. The case was committed to the court of Sessions. The learned trial Judge

framed the charge and on analysis of the evidence and hearing both the sides, convicted the

accused, as aforesaid. Hence this Appeal.

4. I have heard Shri Sagar Katkar, holding for Shri N.R. Saboo, learned counsel

for the appellant and Mr S.B. Bissa, the learned APP. Mr.Katkar submitted that there are

several discrepancies in the testimony of the witnesses which have not been considered by

the learned trial Judge and erroneously convicted the accused. The learned APP, on the

other hand, contended that the learned trial Judge has properly analysed the evidence in its

right perspective before the court and convicted the accused u/s 307 of IPC.

5. On careful scrutiny of the prosecution case, it is noticed that the prosecution

has heavily relied upon the testimony of the victim PW2- Hari Chavan; PW3-Laxmibai

Chavan, who is the wife of the victim; PW 5-Ghanshyam, who is the nephew of the injured,

PW 6-Shyamlal Dhande who is the Panch witness on the point of spot panchnama; PW7-

Rameshsingh Parihar and PW 9-Vishwanath Sirsath, both the Investigating Officers, and PW

10-Dr.Trimbak Kalmegh, the Medical officer.

6. The testimony of PW2-Hari, who is the victim, shows that on the date of

incident, she-buffalo and her calf belonging to him died, all of sudden. He suspected that

somebody must have administered poison to his she-buffalow and her calf. At the time,

accused felt that PW2 was suspecting him. Thereafter PW2 proceeded to his field and he

CRI.APPEAL.655.03

returned back home at about 8.00 pm. After changing his clothes, he sat on the road in front

of his house. All of sudden, the accused pressed the button of torch and he heard the

sound. Therefore he turned his head and saw that accused threw an iron pipe in front of his

house. Thereafter the accused gave an axe blow on his head over his left parietal region.

The accused gave second blow over his forehead from his back side, with the result, he fell

down and became unconscious. He regained consciousness at Irvin Hospital, Amravati. PW2

specifically stated that he was admitted in Irvin Hospital for about one month.

7. The case was put up to PW2 in his cross-examination that Shantabai, the

younger sister of the accused was proposed for marriage with his brother Laxman, however,

mother of Shantabai, declined to perform the marriage with Laxman and therefore a quarrel

had taken place between PW2 and his brother Laxman. It was suggested to PW2 that his

brother Sitaram assaulted the mother of the accused. A case was also put up that PW2's

brother Laxman assaulted the father of the accused hence the relations between the accused

and the family of PW2 were strained and, therefore, the accused is falsely implicated.

8. During the cross-examination of PW2 , he admitted that on Monday between

4 and 5 pm, he abused, as to who has killed his she-buffalo and calf and thereafter he has

gone to his field. A case was put up to PW2 that during night time, he was sitting in front of

the gate of the house of the accused. The accused returned to his house along with one iron

pipe and torch and when the accused was entering inside his house, PW2 started giving axe

blows to the accused. As soon as the accused received the blows of axe, accused caught

axe and scuffle took place between accused and PW2 and during the said scuffle the axe fell

down on the ground and PW 2 fell on the axe. The said case was denied by PW2 and it is not

supported by any other evidence. It is noticed that there are no material discrepancies as

CRI.APPEAL.655.03

such in the testimony of PW2. His testimony is not shattered in the cross-examination and

he is found to be a reliable and trustworthy witness.

9. The testimony of PW2 is well-supported by the testimony of PW3-Laxmibai

who is the wife of Hari (PW2). She deposed that on the date of incident at about 3 to 4 pm.

her she-buffalo and calf died, therefore, her husband stood at the gate of their house and

abused. The accused felt that her husband was abusing him, One Ishwar convinced the

accused, her husband then went to his field and the accused to his house. At about 7 to 8

pm, her husband returned home. He changed the clothes of and sat in front of the door of her

house at that time she was tying the cow. The accused came there threw the iron pipe on the

road. Accused then dealt a blow of axe over the head of her husband, as a result he shouted

loudly. After hearing his shouts, Ishwar and Ghanshyam (PW 5) came to the spot. As a result

of the blow, her husband became unconscious. The accused thereafter fled away. PW3

identified the axe as well as the iron pipe. During the cross-examination, PW3 admitted that at

about 8 to 9 pm. It was dark and there was no electric connection in her house and in the

cattle-shed. It was suggested to her that her husband was armed with axe and scuffle took

place between her husband and accused, resultantly her husband shouted and after hearing

his cries, she came out of the house. Thus, an effort was made to show that PW 3 has not

witnessed the incident and she arrived at the place of the incident on hearing the cries of her

husband, to which PW3 denied. PW 3 is found to be a natural witness. She was present at

the cattle-shed of her house and she had seen the accused throwing the iron pipe on the road

as well as the accused assaulting her husband on his head by means of an axe. The

testimony of PW2 is thus corroborated with the testimony of PW3 who is found to be a

reliable witness.

CRI.APPEAL.655.03

10. PW5-Ghanshyam, who is the nephew of the victim PW2, deposed that at the

time of incident he was sleeping, He heard the shouts of Laxmibai, on hearing the shouts he

rushed to the place of the incident and witnessed that Hari was lying on the road and one axe

was lying at that place. He also noticed that Hari had sustained injury on the left part of his

head and blood was oozing from it. Hari was lying in front of the house of the accused and

accused was not there. As Laxmibai told him to lodge the complaint, he proceeded to Dharni

on bicycle during night time and narrated the incident to police. His complaint (Exh.20) was

recorded.

11. It is significant to note that PW5 is the first informant. On careful scrutiny of

his testimony, it is noticed that in the complaint he had mentioned that when he heard the

shouts he came outside the house and saw the accused assaulting Hari by means of axe, he

rushed to the place of incident and tried to separate Hari from the accused. PW5 however

has not stated before the court that he had himself seen the accused assaulting Hari. In any

case, when PW5 reached the place of incident he had seen the accused at the place of the

incident. It appears from the testimony of PW5 that he has reached to the place of the

incident on hearing the shouts of the victim and he has not seen the incident as such. No

doubt, PW 5 has lodged the complaint (Exh.20) immediately during the same night. It

appears from the testimony of PW 5 that he half-heartedly supported the case of the

prosecution.

12. PW6-Shyamlal Dhande, is the Panch witness in whose presence spot

Panchnama was prepared (Exh.23).

13. So far as the medical evidence is concerned, the testimony of PW10 Dr.

Trimbak Kalmegh reveals that he has examined Hari, the victim and found the following

CRI.APPEAL.655.03

injuries:-

"(i) Incise wound on left side of scalp i.e. parietal temporal region and the size was 4% x 1½ "x 1/2" Margins were regular. Edges were not swelled. Direction was anterior posterior. The wound was found fresh.

(ii) Incise wound, on the mid of forehead size 2 ½" x 1/2" x 1/4". Margins were regular edges and not swelled. It was transversed and fresh in nature.

(iii) Mid of posterior aspect of left arm size 1" x 1/2" x 1/2".Margins regular, edges were not swelled and it was fresh in nature.

(iv) Incise wound on the posterior lateral aspect of left arm deltoid muscular prominence, size was 1" x 1/2" x 1/2". Margins regular, edges were not swelled and it was fresh in nature."

Accordingly, the Doctor issued the certificate Exh.45. The Medical officer

stated that injuries mentioned in Exh. 45 at Sr.Nos.1 and 2 are possible by axe (art.5)

which was shown to him. He opined that the injury nos.1 and 2 are sufficient to cause death

in ordinary course of nature. He categorically stated that the injuries mentioned in Exh.44

are not possible if a person all of sudden falls on sharp pointed bamboo stick. Thus, the

medical evidence clarifies that the injuries sustained by the victim are possible by axe and

those injuries were fatal injuries and were sufficient to cause death in ordinary course of

nature, particularly the injury Nos.1 and 2. Thus, there is a corroboration to testimony of PW

3 and PW2. The medical evidence and the ocular testimony of PW2 corroborates with each

other and there are no discrepancies in the ocular testimony and medical evidence as such.

14. According to PW9- ASI Vishwanath, the accused showed his willingness to

point out the place where he had kept the axe. He pointed out his house and the axe was

taken out from the back side roof of the house of accused. Accordingly, memorandum

CRI.APPEAL.655.03

panchnama (Exh.28) was prepared; so also the seizure panchnama of axe was also

prepared (Exh.29). In this context, it may be mentioned here that PW5 has in unequivocal

terms stated that the axe was lying at the place of the incident. In view thereof the seizure

Panchnama of the axe and its recovery at the instance of the accused does not hold any

importance.

15. The testimony of PW2 and PW3 is well supported by CA report (Exh.48)

which shows the bloodstains on the clothes of the victim as well as the clothes of the

accused. The accused has not explained the reason for finding of the bloodstains on his

clothes. Thus, the testimony of PW 3, PW 5 and PW 10 indicates that it was none else than

the accused, who was the perpetrator of the crime.

16. On the date of incident just prior to the incident, the victim abused, as his

she-buffalo and calf died and therefore, the accused thought that victim was abusing him

and it appears that in order to take revenge, he had assaulted the victim PW2. The injuries

mentioned by the Medical officer are fatal injuries. The evidence of Medical Officer makes

amply clear that the injury Nos.1 and 2 sustained by the victim were sufficient in ordinary

course of nature to cause death. There was no reason for PW2 to falsely implicate the

accused in the present case. In the normal circumstances the injured person is not interested

in implicating any other person than the perpetrator of the crime. Thus, the learned trial Judge

has properly appreciated the evidence in its right perspective and convicted the accused

under section 307 of IPC.

17. In the case of Baleshwar Mahto and another vs. State of Bihar reported in

(2017) 3 SCC 152, the Hon'ble Apex Court has held that, "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

CRI.APPEAL.655.03

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 injured witness should be relied upon unless there

are strong grounds for rejection of his evidence on basis of major contradictions and

discrepancies therein."

18. In the instant case, the testimony of the victim (PW2) is found to be

trustworthy and supported by the testimony of his wife (PW3). The ocular testimony

corroborates with the medical evidence. The trial Court has rightly convicted the accused.

The judgment and order passed by the trial Court needs no interference. Hence the following

order is passed :

ORDER:

i)         Criminal Appeal No. 655/2003 is dismissed.

ii)        The judgment and order dated 31.10.2003 in Sessions Trial No.39/1996

delivered by the learned 1st Ad-hoc Additional Sessions Judge, Achalpur convicting the

appellant for the offence punishable under section 307 of the Indian Penal Code, is

hereby maintained.

(iii) The appellant is directed to surrender to his bail bond, within a period of four

weeks.

JUDGE

sahare