Rajkumar P0Andurang Meshram And ... vs State Of Mah. Thr. Ps Amravati
2017 Latest Caselaw 7397 Bom

                                                    1                             Judg 210917 apeal 743.03.odt 

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

                                            Criminal Appeal No.743 of 2003

                1]  Rajkumar Pandurang Meshram,
                    aged about 34 years,

                2] Arun Pandurang Meshram,
                     aged about 26 years,
                     Both r/o-Belora, Tq. Chandur (Bazar), 
                     District Amravati.
                     (Presently in Central Prison, Amravati)                       ....  Appellants.

                                                            -Versus-

              State of Maharashtra,
              through P.S.Chandur Bazar, Dist- Amravati.                    ....  Respondent.
              --------------------------------------------------------------------------------------------------
              Mr.  J.B. Kasat, Counsel  for appellants.
              Mr.  S.B. Bissa, Additional Public Prosecutor for respondent/State.
              --------------------------------------------------------------------------------------------------
                                                               Coram : Mrs. Swapna Joshi, J.

st Dated : 21 September, 2017.

ORAL JUDGMENT

This appeal has been preferred by the appellants

(hereinafter will be referred as 'the accused') against the judgment and nd order passed by the learned 2 Adhoc Additional Sessions Judge,

Achalpur in Sessions Trial No.136 of 1998 on 05-12-2003, whereby the

learned trial Judge had convicted both the accused for the offence

punishable under Section 307 r/w 34 of the Indian Penal Code and they

2 Judg 210917 apeal 743.03.odt

were sentenced to suffer rigorous imprisonment for five years each and to

pay a fine of Rs.1000/-each , in default, to suffer rigorous imprisonment for

three months each.

2] I have heard Mr. J.B. Kasat, the learned counsel for the

appellants and Mr. S.B. Bissa, the learned Additional Public Prosecutor for

the respondent/State. With their assistance, I have carefully gone through

the record of the prosecution case.

3] The facts leading to prefer this appeal can be summarised as

under :-

Complainant Raosaheb Meshram (PW-1) was the resident of

Belora and the accused persons were also the residents of the same

village. On the date of incident i.e. on 31-05-1998 at about 2.00 pm,

PW-1 asked Rajkumar (accused no.1), Arun (accused no.2) and Ashok

(accused no.3) not to create nuisance on consuming liquor in the

marriage of daughter of Meghraj Kamble who was residing in his

neighbourhood. However, the accused persons abused him. It is the

case of the prosecution that, when PW-1 was standing in front of his

house, the accused persons approached to him, out of them Ashok

(accused no.3 since dead) and accused no.2 caught hold of him from

behind and accused no.1 stabbed him by means of Gupti (sword stick)

on the left side of his chest. PW-1 shouted. On hearing his shouts, his

sister in law PW-2-Mahananda and PW-3-Vinayak along with Indubai

rushed to the place of incident and rescued him. In the meantime, the

accused persons fled away. It is the case of the prosecution that, due to

3 Judg 210917 apeal 743.03.odt

the said incident, PW-1 vomited blood in his house. PW-1 was taken to

Rural Hospital, Chandur Bazar. As the doctor suggested to take PW-1 to

Police Station, PW-1 was taken to the Police Station. His complaint was

recorded in the Police Station. Thereafter, again the Police referred him to

Rural Hospital, Chandur Bazar.

4] At the relevant time PW-6- HC Vijay was attached to the

Police Station Chandur Bazar. He recorded the statement of complainant

(PW-1). On the basis of the said complaint (Exhibit-29), he registered the

offence. PW-10- PI- Payru Ingale carried out the investigation. PW-9-ASI

Subhash visited the place of incident and recorded the spot panchanama.

He recorded the statements of the witnesses. It is the case of the

prosecution that, accused no.1 showed his willingness to point out the

place where he concealed the weapon i.e. Gupti (sword stick) and the

said place was his house. The accused took out the Gupti (sword stick)

from his house. It was seized under panchanama (Exhibit-59). PW-9

then arrested the accused. The clothes of the victim and the accused

persons were taken charge by PW-9.

5] The seized articles were sent to CA office for its analysis.

PW-9-ASI Subhash arrested accused no.1. Accused no.1 then made

voluntary statement that, he would produce the stick sword used in the

commission of offence and he had kept it in his house. PW-9 recorded his

confessional statement in the Police Station. After completion of the

investigation, the chargesheet came to be filed in the Court of learned

JMFC. The case was committed to the Court of Sessions. The learned

4 Judg 210917 apeal 743.03.odt

trial Judge framed the charge. Both the accused pleaded not guilty to the

charge levelled against them and claimed to be tried. On conducting the

trial, on appreciation of the evidence and hearing both the sides, the

learned trial Judge convicted both the accused as aforesaid. Hence, this

appeal.

6] I have heard Mr. J.B. Kasat, the learned Counsel for the

appellants and Mr. S.B. Bissa, the learned APP for the State. I have

carefully gone through the record and proceedings of the case.

7] Mr. J.B. Kasat, the learned Counsel for the appellants

vehemently argued that the learned trial Judge has not considered the

discrepancies between the testimony of the victim-PW-1-Raosaheb,

PW-2-Sau. Mahananda and PW-3-Vinayak and has erroneously convicted

the accused persons.

8] Mr. S.B. Bissa, the learned APP contended that, the learned

trial Judge has rightly convicted the accused persons on considering the

entire evidence on record.

9] On hearing the rival contentions of both the sides, it would be

advantageous to go through the case of the prosecution. The prosecution

has mainly relied upon the testimony of victim PW-1-Raosaheb, PW-2-

Sau. Mahananda and PW-3-Vinayak the alleged eye witnesses, PW-7-

Dr. Raj and PW-8-Dr. Umesh, the Medical Officers and PW-9-Subhash,

the Investigating Officer.

10] As far as the testimony of PW-1-Raosaheb is concerned,

PW-1 stated that on the day of marriage of Archana, he saw two bottles

5 Judg 210917 apeal 743.03.odt

of liquor in the pocket of Ashok (accused no.3). He had brought those

bottles for sale. He asked accused no.3 not to sell the liquor in the

marriage as it was the marriage of a poor person. Ashok (accused no.3)

opposed him and told that he would sell those bottles. The scuffle took

place between him and Ashok (accused no.3). At that time accused no.1

and accused no.2 came near him and accused no.2 and Ashok (accused

no.3) embrassed him. As a result, he fell down. Accused no.1 then dealt

a blow of Gupti (sword stick) on his chest. Accused no.2 and Ashok

(accused no.3) had caught hold of him. PW-1 stated that one Vinayak

Charde, his sister in law Mahananda and his aunt Indubai also rushed to

that place. His sister in law Mahananda and his aunt Indubai took him to

Rural Hospital at Chandur Bazar. The doctor advised them to lodge the

complaint. PW-1 went to the Police Station and lodged the complaint

(Exhibit-29) and then he came to the hospital at Chandur Bazar. PW-1

further stated that the doctor at Rural Hospital, Chandur Bazar examined

him and advised him to go to at Irwin Hospital, Amravati. PW-1 was at

Irwin Hospital, Amravati for 12 days.

11] PW-1 identified the Gupti (sword stick) before the Court as

the weapon by which he was assaulted. In his exhaustive cross

examination PW-1 stated that there are approximately 3000 people

gathered in the marriage and the loudspeaker was also on. He admitted

that his brother Ravi had purchased the house from the grandmother of

accused namely Kasabai and the said house was owned by grandmother

of the accused. Thus, there was dispute about the said house. PW-1 in

6 Judg 210917 apeal 743.03.odt

his cross examination denied about the dispute with regard to the house.

PW-1 specifically denied that he used to release his bullocks in the field

of the accused for grazing and on that ground he was inimical terms with

accused and therefore he had lodged the false complaint against the

accused. Few improvements were pointed out in the testimony of PW-1.

PW-1 admitted that, he had stated before the Police that scuffle had

taken place between him and accused no.3 and he fell down. It appears

that PW-1 had not stated about the scuffle in his complaint. It was also

suggested to PW-1 that under the influence of liquor he fell down on the

sharp edged iron pegs of the marriage pendal and sustained injury.

12] On careful scrutiny of the testimony of PW-1, it is found that

PW-1 has unequivocal terms deposed that accused no.3 stabbed him by

means of Gupti (sword stick) and accused no.1 and accused no.2 caught

hold of him at that time. The said version of PW-1 finds place in his

complaint (Exhibit-29). The said version of PW-1 has not been shattered

in his exhaustive cross examination. It is also noticed that the contents in

the First Information Report are in consonance with the testimony of

PW-1 on the material aspects. PW-1 is found to be a reliable and

trustworthy witness. So far as the testimony of PW-2-Sau. Mahananda

and PW-3-Vinayak are concerned, they identified the accused at the

place of incident.

13] So far as the recovery of weapon is concerned, It is the case

of the prosecution that accused no.1 made voluntary statement that he

would produce the stick sword which was used in the commission of

7 Judg 210917 apeal 743.03.odt

offence. Accused no.1 showed his willingness to point out the place

where he concealed the weapon Gupti (sword stick) and the said place

was his house. Accused no.1 took out the Gupti (sword stick) from his

house. It was seized under panchanama (Exhibit-59).

14] Thus on careful scrutiny of the testimony of witnesses it is

noticed that, PW-1 has unequivocal terms stated that accused no.1

assaulted by means of Gupti (sword stick) and accused no.2 has caught

hold of him. So far as as Ashok (accused no.3) is concerned, during the

trial he died and the testimony of accused nos. 1 and 2 remains

unshattered.

15] 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

8 Judg 210917 apeal 743.03.odt

of major contradictions and discrepancies therein."

16] As far as the testimony of PW-2-Sau Mahananda is

concerned, she knows accused nos. 1 to 3 and victim Raosaheb.

Accused nos. 1 to 3 and victim Raosaheb were present in the marriage of

Archana. In the said marriage, the meal was being served. At that time,

she heard the shouts in the marriage at about 2.00 pm. After hearing the

shouts, she went near the house of Nanda Gawale. There was rush of

people. She noticed accused no.2 and Ashok (accused no.3) caught

hold of Raosaheb while accused no.1 dealt a blow of Gupti (sword stick)

on the chest of Raosaheb. Thereafter, the accused persons ran away.

On her cross examination she admitted that when she had gone to the

place of incident, there was rush of about 40 to 50 persons and

Raosaheb (PW-1) was lying on the ground and those people had

surrounded him. PW-2 made an improvement with regard to the fact that

accused no.1 dealt a blow of Gupti (sword stick) to Raosaheb. The said

improvement goes to the root of the case and makes the presence of

PW-2 at the place of incident doubtful.

17] As far as the testimony of PW-3-Vinayak is concerned, he

was present in the marriage. When the meal was being served, he heard

shouts and accordingly he rushed towards the place of incident. He saw

PW-1-Raosaheb and the accused persons catching each other.

Thereafter, accused no.1 dealt a blow of Gupti (sword stick )on the chest

of Raosaheb. Thereafter, accused no.1 ran away by taking Gupti (sword

stick) with him. In his cross examination PW-3 denied that, he reached at

9 Judg 210917 apeal 743.03.odt

the place of incident, where there was a rush of people and came to

know from them, Raosaheb fell down on the ground. There was an

improvement in the testimony of PW-3 to the effect that scuffle had taken

place between Raosaheb and Ashok (accused no.3). It is not clear as to

why the said suggestion given to the witness. On going through the

testimony of PW-3 it is noticed that. he had not whispered about the

presence of accused nos. 2 and 3 at the place of incident and he had

simply stated that Ashok (accused no.3) assaulted PW-1 by means of

Gupti (sword stick). It appears that PW-3 had reached the place of

incident on hearing the shouts and from his testimony it does not appear

that he had witnessed the incident. PW-3 is not found to be a reliable

witness.

18] On the point of medical evidence PW-8-Dr. Umesh who was

the Medical Officer attached to Rural Hospital, Chandur Bazar, he noticed

the following injuries on the person of Raosaheb (PW-1) :-

"Stab injury on the chest, left side over right intercostal space 4" away from mid line size 1/2" x ½ cm depth 1 1/2", surgical emhyzima present"

19] According to PW-8-Dr. Umesh, the said injury was grievous

injury and it was caused by hard and sharp object. It was dangerous to

the life of the patient. PW-8 examined the weapon Gupti (sword stick) and

he opined that the injury caused to the victim was possible by the said

weapon Gupti (sword stick). PW-8 issued the Medical Certificate of the

victim (Exhibit-49) and his opinion with regard to the weapon is at

Exhibit-50. Thus, the medical evidence corroborates with the testimony of

10 Judg 210917 apeal 743.03.odt

victim PW-1.

20] So far as the CA report is concerned, the CA report shows

the blood stains on the clothes of the victim. Thus, the prosecution has

proved its case beyond reasonable doubt.

21] The learned trial Judge has rightly convicted the accused

persons. So far as the the intention is concerned, accused no.1 carrying

the weapon Gupti (sword stick) and assaulted on the vital parts of the

body of victim which itself proves the intention of accused no.1 to commit

murder of the victim. However, as PW-1 got immediate medical aid, he

remained alive. So far as the role of accused no.2 is concerned, he

caught hold of the victim and that part of the evidence of PW-1 supported

by its oral report (Exhibit-29).

22] Now, so far as the sentence is concerned, considering the

manner in which incident had taken place & in my opinion, it will be

sufficient to modify the sentence to the extent of reduction of sentence

from 5 years to 3 years and to maintain the order with regard to the

payment of fine amount. In view of the facts and circumstances, the

following order is passed :-

O r d e r

(a) Criminal Appeal No.743 of 2003 is partly allowed.

(b) The Judgment and order passed by the learned nd 2 Adhoc Additional Sessions Judge, Achalpur in

Sessions Trial No.136 of 1998, whereby both the

accused were convicted for the offence punishable

11 Judg 210917 apeal 743.03.odt

under Section 307 r/w 34 of the Indian Penal Code

and sentenced to suffer rigorous imprisonment for 5

years each and to pay a fine of Rs.1000/-each, in

default, to suffer rigorous imprisonment for 3 months

each is modified to the extent of reduction of sentence

from 5 years to 3 years. The order with regard to the

payment of fine amount is maintained.

(c) Muddemal property be dealt with as directed by trial

Court after the appeal period is over.

JUDGE

Deshmukh