Bhaurao S/O Sunga Madavi And ... vs State Of ...
2017 Latest Caselaw 7284 Bom

                                        1                                        apeal481.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 481 OF 2002


 1) Bhaurao s/o Sunga Madavi,
     Aged about 31 years, 

 2) Laxman s/o Dashrath Tumram, 
     Aged about 42 years, 
    
     Both resident of Yerabara, 
     Tq. and District Yavatmal.                                  ....       APPELLANTS


                     VERSUS


 The State of Maharashtra, 
 through P.S.O. Wadgaon.                                         ....       RESPONDENT


 ______________________________________________________________

             Shri R.M. Daga, Advocate for the appellants, 
           Shri A.V. Palshikar, Addl.P.P. for the respondent. 
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

                             DATED    :    19
                                                 SEPTEMBER, 2017
                                              th



 ORAL JUDGMENT : 

The appellants seek to assail the judgment and order

dated 09-8-2002 in Sessions Trial 130/1999, delivered by the 2 nd Ad

hoc Additional Sessions Judge, Yavatmal, by and under which the

appellants (hereinafter referred to as the "accused') are convicted for

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offence punishable under Section 307 read with Section 34 of the

Indian Penal Code and are sentenced to suffer rigorous imprisonment

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

2. Heard Shri R.M. Daga, learned Advocate for the accused

and Shri A.V. Palshikar, learned Additional Public Prosecutor for the

respondent.

3. The submission of the learned Advocate for the accused

Shri R.M. Daga is that the evidence on record is grossly insufficient to

bring home the charge under Section 307 of the Indian Penal Code.

The incident is shrouded in mystery and the best possible evidence

which would have thrown light on the incident, is suppressed, is the

submission. Shri R.M. Daga, learned Advocate would submit that one

Prabhakar Nanne who is cited as a witness in the charge-sheet and

who according to the prosecution is a friend of the injured and was a

witness to the assault, has not been examined for reasons inexplicable.

Shri R.M. Daga, learned Advocate would further submit, that it has

come on record that the accused 2 Laxman suffered injury and on the

basis of the report lodged by accused 2 Laxman, an offence punishable

under Section 323 of the Indian Penal Code came to be registered at

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Police Station Wadgaon. Shri R.M. Daga, learned Advocate invites my

attention to Exhibit 60 which is extract of the station diary entry dated

22-2-1999 which reveals that on the complaint of accused 2 Laxman,

station diary entry 26 is recorded to the effect that the complainant

(P.W.1) and one unknown person abused and assaulted accused

Laxman and his mother-in-law. Strangely the entry is taken as non-

cognizable and in the same breath offences punishable under Sections

504, 506, 323 and 326 of the Indian Penal Code are referred in the

entry. The effort of Shri R.M. Daga, learned Advocate is to

demonstrate that the failure of the prosecution to examine the best

possible independent witness to the incident is fatal. The incident is

blurred. There are too many grey areas in the prosecution case for the

conviction to be based on the testimony of interested witnesses like

P.W.1 who is the injured informant and P.W.5 who is the sister of

P.W.1. Arguendo, Shri R.M. Daga, learned Advocate would submit

that, even if the evidence of the prosecution is accepted, the accused at

the most can be convicted under Section 323 of the Indian Penal Code.

The learned Advocate invites my attention to the injury certificate

Exhibit 41 and the evidence of the medical practitioner (P.W.4) and

then contends that there is no injury suffered by P.W.1 which is a life

endangering injury. It is not even the case of the prosecution that the

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alleged assault was premeditated or that the evidence is suggestive of

intent to kill. It is not the case of the prosecution that either of the

accused went out of the way to arm himself with legal weapon and

assaulted the injured on the vital part of the person, is the submission.

4. Shri R.M. Daga, learned Advocate would also urge that the

evidence of P.W.1 and P.W.5 is at variance on material aspects. Shri

R.M. Daga, learned Advocate, in particular, brings to my notice that

sister of the injured Rajshree who is examined as P.W.5 has deposed

that accused Bhaurao was wielding an axe and accused Laxman was

armed with spade which is contrary to her statement under Section

161 of the Criminal Procedure Code, although consistent with what is

deposed by P.W.1.

5. Shri A.V. Palshikar, learned Additional Public Prosecutor

supports the judgment impugned. The learned Additional Public

Prosecutor would submit that the injury suffered by accused Laxman is

only an abrasion. Such minor injury would not substantiate the plea of

legitimate exercise of right of private defence nor would such minor

injury to the palm render the evidence of P.W.1 and P.W.5 suspect.

The learned Additional Public Prosecutor would submit that the

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finding recorded by the learned Sessions Judge that both the accused

assaulted P.W.1 with intent to kill is unexceptionable, on facts and in

law.

6. I have given my anxious consideration to the evidence on

record and the reasoning adopted by the learned Sessions Judge. I am

afraid, I am not persuaded to agree with the learned Sessions Judge

that the accused assaulted P.W.1 with the intent to kill. Concededly,

the incident happened on the spur of the moment. P.W.1 and his

friend, who incidentally is kept away from the witness box, confronted

Bhaurao (accused 1) and the provocation was the ill-treatment which

Bhaurao meted out to P.W.5 over some dispute. The prosecution

version is that Bhaurao assaulted P.W.5 and snatched the golden beads

from her mangalsutra. Be that as it may, even according to the

prosecution, both the accused were engaged in agricultural operations

in their field when P.W.1 and his friend confronted them. P.W.1 states

that he suffered two blows. The first assault is allegedly by accused 2

Laxman with a spade. The second assault is an axe blow inflicted on

the left side of the face by accused Bhaurao. It is axiomatic, in view of

the relatively minor injury suffered, that the axe blow is inflicted by

the blunt side of the axe and not the sharp edge. The medical evidence

6 apeal481.02

is consistent with the blow being inflicted by the blunt side of the axe.

It is true that the medical practitioner (P.W.4) states in her

examination-in-chief that injury 3 referred to in Exhibit 41 is on a vital

part of the body and can cause death in ordinary circumstances.

7. The said evidence must be considered only for rejection.

P.W.4 may be justified in opining that the forehead is a vital part of the

body. However, the further deposition that the injury can cause death

in ordinary course, if no treatment is given is inexplicable. The only

visible sign of the injury which is recorded in the injury certificate is

the contusion. It is not the case of the prosecution that the blow

resulted in fracture. The injured was not subjected to x-ray

examination. There is absolutely no evidence on record to corroborate

the vague statement of P.W.1 that he was hospitalized for eleven days

or thereabout. No details of the medical treatment received by P.W.1

are placed on record. In this situation, I must reject the generalized

statement of the medical practitioner that the injury on the forehead

could have resulted in death.

8. I am inclined to agree with the learned Advocate for the

accused that the learned Sessions Judge committed a serious error in

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recording a finding that the assault was with intent to kill. I must

note, that the best possible evidence is suppressed by the prosecution.

According to P.W.1 all the while he was accompanied by his friend one

Prabhakar Nanne. The said Prabhakar Nanne is named as a

prosecution witness in the charge-sheet. However, he has not been

examined. The learned Additional Public Prosecutor is right in

contending that ordinarily that it is the sweet will of the prosecution to

decide as to whom to examine as a prosecution witness. The

prosecution is of course entitled to decide as to who should be

examined and no fault can be found if the prosecution is of the opinion

that multiple witnesses need not be examined to prove the same fact.

Ultimately, the evidence has to be weighed and not counted.

However, since the only other witness is a related witness namely

Rajshree (P.W.5), I would have expected the prosecution to examine

Prabhakar Nanne who would have thrown a clear light on the incident.

9. It is true that P.W.1 is an injured witness. The testimony

of an injured witness is ordinarily on a higher pedestal than other

witnesses. Injuries lend assurance that the witness was present on the

spot. An injured witness is further not expected to implicate the

innocent and absolve the guilty. The testimony of P.W.1, can be

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accepted as trustworthy, only to the extent of he having suffered

injuries in an incident involving the injured and the accused. I am,

however, inclined to scale down the offence to Section 324 of the

Indian Penal Code. I am not persuaded to record a finding that the

injuries suffered are grievous in nature.

10. The incident is of the year 1999. The learned Advocate

for the accused states that both the accused are not involved in any

other offence since 1999. The accused Bhaurao, according to the

learned Advocate for the accused, is bedridden having suffered a

paralytic attack. Both the accused have already spent about five

months in detention. In this view of the matter and in the light of the

blurred circumstances in which the incident occurred, I am inclined to

alter the sentence and to scale down and to reduce the sentence to

already undergone.

11. The appeal is partly allowed. The conviction of the

appellants under Section 307 of the Indian Penal Code is set aside.

The sentence of fine is maintained. The appellants/accused are

convicted for offence punishable under Section 324 of the Indian Penal

Code and are sentenced to suffer imprisonment as is already

9 apeal481.02

undergone. The bail bonds shall stand discharged.

The appeal is disposed of accordingly.

JUDGE

adgokar