Vinod Bakshi Makre And 3 Others vs State Of Maharashtra,Thr.Pso.Ps ...
2017 Latest Caselaw 7552 Bom

 apeal638.02.J.odt                         1




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

                     CRIMINAL APPEAL NO.638 OF 2002

 1]       Vinod Bakshi Makre,
          Aged about 22 years.

 2]       Keshav @ Kishor s/o Chanulal Patel,
          Aged about 20 years.

 3]       Wasu @ Wasudeo s/o Anandrao
          Nirmalkar, Aged about 23 years.

 4]       Khilavan s/o Arjun Waghmare,
          Aged about 23 years.

          All resident of Indiranagar, Nagpur. ....... APPELLANTS

                                   ...V E R S U S...

          The State of Maharashtra,
          through Police Station Officer,
          Police Station Imambada, Nagpur. ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri R.M. Daga, Advocate for Appellants.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            26    SEPTEMBER, 2017.


 ORAL JUDGMENT



 1]               The   appellants   seeks   to   assail   the   judgment   dated

19.10.2002 in Sessions Trial 178/2002 delivered by the 3 rd Adhoc

Additional Sessions Judge, Nagpur, by and under which, the

appellants are convicted of offence punishable under section 324,

307 read with section 34 of I.P.C. and are sentenced to rigorous

imprisonment for a period of three years and to payment of fine of

Rs.2000/- each for the offence punishable under section 307 read

with section 34 of I.P.C. The learned Sessions Judge has not

awarded separate sentence for the offence under section 324 read

with section 34 of I.P.C.

2] The prosecution case as is culled out from the First

Information Report lodged by P.W.5 Gyanendra Mahato on

18.09.2001 is that the informant left his residence at 06:00 p.m.

on 18.09.2001 and came to the Carrom club at Barasignal.

The informant was accompanied by his friends Raju @ Jackey and

Kamal @ Bhim. The informant and his friends spent time at the

club till 07:30 p.m. and then went to one Pan shop situated in

front of the Imambada Police Station. The Pan shop was closed

and the informant and his friend started towards their respective

residences on foot. When the informant and his friends were

passing through a Dargah, all of a sudden at 08:00 p.m. or

thereabout four assailants with sword, spear, blade and knife,

without uttering any word, assaulted the informant. The appellant

1-Vinod Bakshi inflicted a sword blow on the head of the

informant. Witnessing the assault, Jackey and Bhim started

running, however, they were also assaulted. The informant states

that all the four assailants assaulted the informant on head, both

the legs, left hand and chin and on the thumb of the right hand by

sword. The informant further states that after the assailants ran

away, he reached his locality and the residents admitted him to

the Medical College. The informant states that he knows all the

four accused by face and one also by name i.e. Vinod

Bakshi-appellant 1. The informant states that on the previous day

i.e. 17.09.2001 at 6'o clock in the evening when the informant,

Bhim and Jackey were returning home after having a tobacco

mixture (kharra) from the Pan shop situated in front of the

Imambada Police Station an altercation ensued between Bhim and

the assailants on the issue of an accidental push given to the

assailant. A specific statement is made in the First Information

Report that the assault on 18.09.2001 was an act of revenge.

3] On the basis of the First Information Report offence

under section 307, 324 read with section 34 of I.P.C. was

registered, investigation was completed and charge-sheet

presented in the Court of the J.M.F.C. Nagpur who committed the

case to the Sessions Court. The accused pleaded not guilty and

claimed to be tried. The defence as is discernable from the trend

of the cross-examination and the statement recorded under

section 313 of the Cr.P.C. is of false implication.

4] Shri R.M. Daga, the learned counsel for the accused

contends that the evidence on record is neither reliable nor

trustworthy nor consistent with the First Information Report and

that the prosecution has not established the guilt of the appellants

beyond reasonable doubt. Per contra, the learned A.P.P. supports

the judgment impugned and contends that the injured has

assigned specific roles to the accused. The testimony of the injured

is confidence inspiring, is the submission. The learned A.P.P.,

while not disputing that only appellant 1 was named in the First

Information Report and indeed only appellant 1 is named in the

evidence of P.W.5 Gyanendra Mahato, P.W.6 Bhim Thakur and

P.W.7 Jackey @ Raju Derikar, contends that the presence of

appellants 2 to 4 at the time of the assault is more than

established since the appellants 2 to 4 have been identified by the

witnesses in the Court as the assailants. The learned A.P.P. would

submit, in the alternate, that even if it is held that the evidence

against the appellants 2 to 4 is not free from doubt as to their

specific roles appellants 2 to 4 are liable to be held guilty with the

aid of section 34 of I.P.C. The learned A.P.P. lastly submits that, at

any rate, the evidence against appellant 1 is conclusive. He has

been named in the First Information Report which was lodged

with promptitude. Each of the injured witnesses P.W.5

Gyanendra, P.W.6 Bhim and P.W.7 Jackey have named appellant

1 as the assailant having played the most prominent role in the

assault.

5] In rebuttal, Shri R.M. Daga, the learned counsel for

the accused would contend that the ocular evidence must be

discarded as the same is totally inconsistent with the medical

evidence. He would invite my attention to the testimony of

Dr. Pradeep Dixit P.W.9 who is the purported author of the injury

certificate Exh.56. Shri R.M. Daga contends that P.W.9 has

admitted that he did not examine the injured Gyanendra and that

the injury certificate is issued on the basis of the bed head ticket.

The learned counsel would urge that since the bed head ticket,

which is the primary material on the basis of which the injury

certificate is purported to have been issued, is not produced much

less proved, no weight can be attached to the injury certificate.

The learned counsel would further urge that in any event the

medical evidence is inconsistent with the ocular evidence.

6] The prosecution has examined Tulshiram Atram as

P.W.3 and Thukil Shahu P.W.4 as eye witnesses to the incident.

However, both have not supported the prosecution. Nothing is

brought out in the cross-examination of P.W.3 and P.W.4 to assist

the prosecution. The case of the prosecution therefore, hinges on

the evidence of P.W.5 Gyanendra, P.W.6 Bhim and P.W.7 Jackey

and on the medical evidence. Be it noted, that although according

to the case of the prosecution a sword and clothes were recovered

from appellant 1, both the panchas P.W.1 and P.W.2 have not

supported the prosecution. In the factual matrix, I am not inclined

to rely on the sole testimony of the I.O. to hold that the recovery is

proved and I must shut out the recovery from consideration while

appreciating the evidence on record.

7] I have given my anxious consideration to the evidence

of P.W.5 Gyanendra, P.W.6 Bhim and P.W.7 Jackey and having

done so I am inclined to agree with the learned counsel for the

accused that there is no evidence worth the name against

appellants 2 to 4. The appellants 2 to 4 were not named in the

F.I.R. None of the prosecution witnesses have named appellants 2

to 4. Concededly, no identification test is conducted is held.

No weight can be attached to the statement in the evidence before

the Court that the accused present in the Court are the assailants.

8] Shri Palshikar, the learned A.P.P. is however,

vehement in the submission that the offence is proved beyond

reasonable doubt as against appellant 1-Vinod Bakshi. He is

named in the F.I.R. and P.W.5 Gyanendra, P.W.6 Bhim and P.W.7

Jackey have in unison named appellant 1 as the assailant who

initiated the assault and played the most prominent role in the

incident. Gyanendra Mahato who is examined as P.W.5 states that

on 18.09.2001 the provocation for the assault was the accidental

dash given by Bhim to appellant 1-Vinod Bakshi. The statement in

the examination-in-chief is that immediately appellant 1-Vinod

Bakshi whipped out a sword and started the assault. P.W.5 states

that P.W.6 and P.W.7 escaped. He further states that appellant 1

assaulted him on head, forehead, back side, neck, and face and on

legs. He further deposes that there were three boys with appellant

1-Vinod Bakshi who also joined in the attack. The other three boys

were armed with knife, is the deposition. The evidence is clearly

inconsistent with the First Information Report and that too on

material aspects. Be it noted, that in the First Information Report

a specific motive for the assault was alleged. According to the First

Information Report an altercation on 17.09.2001, due to

accidental dash given by P.W.6 Bhim to appellant 1-Vinod Bakshi.

An altercation ensued between the informant, Bhim and Jackey

and the accused and that the assault on the next day i.e. on

18.09.2001 was an act of revenge. It is axiomatic, that the

inconsistency between the First Information Report and the

evidence of P.W.5 cannot be brushed aside as the variance is on

material and significant aspects of the version of the informant.

9] I must agree with the learned counsel for the accused

that the injury certificate Exh.56 must be discarded as of no utility

to the prosecution. Firstly, the injury certificate has not been

proved. P.W.9 Dr. Pradeep Dixit who is the author of the injury

certificate has not examined the injured. P.W.9 claims that the

contents of the injury certificate are recorded on the basis of the

bed head ticket. But then, the bed head ticket which is the primary

material on the basis of which the contents of the injury certificate

are recorded is not produced much less proved. Secondly and

more importantly, the injury certificate is totally inconsistent with

the evidence of the P.W.5 prosecution witness. The injury

certificate makes a reference to as many as 11 wounds and each of

the wound is said to be a lacerated wound. The implication is that

the injury is caused by a hard and blunt weapon, which is also the

opinion expressed in the injury certificate. Not a single wound is

an incised wound. The evidence of P.W.5, 6 and 7 that the injured

P.W.5 was brutally assaulted with sword, spear-blade and knife

must be held as unreliable in the teeth of the medical evidence

which is suggestive of the use of a hard and blunt weapon.

The learned A.P.P. however, submits that the examination report

of the sword would show that one side is sharp and the other is

blunt. If the blunt point of the sword is used, then the use is

consistent with the injury certificate, is the submission.

The learned A.P.P. may be right in contending that if a sword

which is either blunt or thick edged is used a lacerated wound

may be caused. But then, there is nothing on record to suggest

that the blunt side of the alleged weapon of offence was used.

Indeed, to my mind, if in a fierce assault 11 injuries are inflicted,

it would be extremely improbable that the blunt point of the

sword is used consistently and carefully to inflict multiple blows

thereby ensuring that there is no incised wound. It is obvious, that

the possible explanation suggested by the learned A.P.P. does not

hold true for the other weapons allegedly used in the assault since

it is not the case of the prosecution that one side of the knife or

the spear-blade is blunt.

10] On a holistic appreciation of the evidence on record,

I am inclined to conclude that the prosecution has failed to

establish the offence under section 313 of the Cr.P.C. beyond

reasonable doubt.

11] The judgment impugned is set aside. The accused are

acquitted of offence punishable under section 324, 307 read with

section 34 of I.P.C.

12] Fine paid by the accused, if any, be refunded to them.

  13]              The appeal is allowed.



                                            JUDGE


NSN