Bombay High Court
Sham S/O Ambulal Jaiswal vs State Of Maharashtra on 28 September, 2017
Bench: Swapna Joshi
1 Judg cr app 225-03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 225 OF 2003
Sham s/o Ambulal Jaiswal
Aged about 31 years, Occ.: Business
R/o Rajatpura
Akola, District-Akola. .... Appellant.
-Versus-
The State of Maharashtra
Through the Police Station Officer,
City Kotwali, Kotwali
Tq. District-Akola. .... Respondent.
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None for the appellant.
Shri S.B.Bissa, Additional Public Prosecutor for Respondent.
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Coram : Mrs. Swapna Joshi, J.
Dated : 28
September, 2017.
th
ORAL JUDGMENT
This appeal has been directed against the judgment and
order dated 15.3.2003 delivered by the Additional Sessions Judge, Akola in
Sessions Trial No. 203/1998, whereby the learned trial Judge convicted the
appellant (hereinafter will be referred as 'the accused') under Section 304-II
of the Indian Penal Code and sentenced to suffer rigorous imprisonment for
nine years and to pay a fine of Rs.5,000/-, in default to suffer rigorous
imprisonment of six months.
2] I have heard Mr. Bissa, the learned Additional Public
Prosecutor for the respondent-State. The accused and his Counsel
remained absent since morning, till the matter was called out around
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4.00p.m. With the able assistance of the learned APP, I have carefully
gone through the record of the prosecution case.
3] The prosecution case, in nutshell, can be stated as under:
Accused nos. 1 to 3 are real brothers. They have hotels in
Chitra Chowk, Akola. Deceased Sunil was the Cable Operator. He had
connected cable to the house of accused no.1 Ganesh. Some amount was
due from accused Ganesh. On 15.7.1998 at about 9.30 p.m., PW-2
Subhash was standing at Chitra Chowk with his brother Sunil. At that time
talks were going on in between accused no.1- Ganesh and deceased Sunil,
which resulted into quarrel. PW-2 went to pacify them. In the meantime,
accused no.2/appellant- Sham came from behind, accused no.3 Pramod
caught hold of Sunil and accused no.2/appellant Sham gave a blow of knife
on the chest of Sunil due to which he sustained bleeding injury. In the
meantime, police van arrived there and Sunil was taken to the District
Hospital. PW-2 Subhash and PW-4 Pawankumar accompanied Sunil. Sunil
was declared dead by the Medical Officer. PW-2 then proceeded to police
station and lodged his complaint (Exh.38).
4] At the relevant time PW-9 PSI Bhosle was attached to City
Kotwali Police Station, Akola. He recorded the complaint of PW-2 and on
the basis of it he registered the offence. PW-9 arrested the accused under
the arrest panchnama (Exh.45 and Exh.46 respectively). He took charge of
clothes from accused nos. 1 and 2 vide article nos. 1, 7 and 8 under
3 Judg cr app 225-03.odt
seizure panchnamas (Exh.52 and Exh.53 respectively). PW-9 took charge
of blood stained clothes of PW-4 Pawankumar under seizure panchnama
(Exh.54). PW-9 recorded spot panchnama (Exh.55) and inquest pananama
(Exh.43). He sent dead body of Sunil for autopsy. The medical Officer
performed the postmortem on dead body of Sunil and opined that Sunil
died due to haemorrhagic shock, secondary to injury on chest puncturing
the heart. PW-6 issued P.M. Report (Exh.62). PW-7 PI Santosh Verma
arrested the accused no.3- Pramod. He interrogated the accused no.2 and
recovered the knife article-5 at his instance under discovery/seizure
panchnama vide Exh.68 and Exh.69 respectively. PW-7 sent the knife for
examination to Medical Officer vide his requisition (Exh.63). PW-7 obtained
blood samples of accused Pramod and Ganesh under seizure panchnamas
(Exh.48 and Exh.49 respectively). PW-7 took charge of clothes of accused
no.1 and 3 as well as their blood samples, viscera and seized articles and
sent to C.A. office for its analysis. After investigation, chargesheet was
filed. The case was committed to the Court of Sessions. Learned Trial
Judge framed the charge and after analysis of the evidence, convicted the
accused as aforesaid. Hence, the appeal.
5] In order to bring home the guilt of the accused, the
prosecution has mainly relied upon the testimony of PW-2, PW-4 and
PW-5 who are the alleged eye-witnesses to the incident. The testimony of
PW-2 who is the brother of deceased Sunil, shows that on 15.7.1998 at
4 Judg cr app 225-03.odt
about 9.30 to 10.00p.m, when he was standing along with his brother Sunil,
altercations took place between accused no.1 Ganesh and deceased-Sunil
as Sunil demanded the amount towards cable charges from Ganesh.
Thereafter, PW-2 went to pacify them. Accused no.2/appellant Sham came
from behind. Accused nos. 1 and 3 caught hold of Sunil and accused no.2
Sham gave a blow of knife on the chest of Sunil, hence he fell down. He
sustained bleeding injury. At that time, police van came there and Sunil
was taken in the police van. PW-2 Subhash and PW-4 Pawankumar
accompanied deceased Sunil. After reaching to the hospital, doctor
declared Sunil as dead. PW-2- Subhash lodged complaint (Exh.38).
6] The testimony of PW-2 Subhash does not reveal any
discrepancy as such, so that it would destroy his basic version that there
was quarrel amongst Sunil and accused nos. 1 and 2 and accused no.2
Sham gave fatal blow on the chest of Sunil. There are no material
discrepancies in his testimony. Thus, the testimony of PW-2 is not
shattered during the cross-examination on the aspect that accused no.2
Sham assaulted Sunil by means of deadly weapon i.e. knife. It has already
come in the evidence of PW-2 that there was quarrel between accused
no.1 and Sunil on the point of cable charges. The amount was to be paid
towards the cable charges by Sunil and the said quarrel resulted into the
incident of accused no.2 assaulting Sunil by means of knife on his chest.
The presence of PW-2 at the place of incident, is not shaken in the cross-
5 Judg cr app 225-03.odt
examination. His testimony is cogent, reliable and consistent. He is found
to be a trustworthy witness. The testimony of PW-2 is in consonance with
the FIR (Exh.38).
7] The testimony of PW-2 is well corroborated by the testimony
of PW-4. According to PW-4, on 15.7.1998 he was standing before Chitra
talkies, near the pan-stall. Quarrel was going on between accused no.1
Ganesh and accused no.3 Pramod on one side and Sunil on other side. At
that time, PW-2 Subhash separated Sunil from accused no.1 and 3.
Accused no.1-Ganesh was abusing him. Beating started amongst accused
no.1 Ganesh, accused no.3 Pramod and Sunil. Accused no.1 and accused
no.3 were beating Sunil by means of fists. Accused no.2-Sham came there
from behind and gave a blow of knife on the chest of Sunil. Sunil fell down.
PW-4 lifted Sunil with the assistance of PW-2 Subhash. Due to which his
clothes were stained with blood. PW-4 categorically stated that street lights
were on. The presence of PW-4 at the place of incident is not doubtful.
Testimony of PW-4 is not shattered during the course of cross-examination.
There are no material discrepancies in the testimony. His testimony is
cogent, consistent and reliable.
8] As far as testimony of PW-5 is concerned, he is an
independent witness. He deposed that on 15.7.1998 at 11.00 p.m. or 11.15
p.m. after purchasing medicines, he was returning home. When he came
near Chitra talkies, the street lights were on. He saw that accused no.1
6 Judg cr app 225-03.odt
Ganesh and accused no.3-Pramod were beating Sunil by means of fists. At
that time accused no.2 came there. He caught hold of Sunil and gave a
blow of knife, on the chest of Sunil. Sunil fell down. Thereafter, PW-5
returned to his house. It was asked to him that he had not disclosed to the
police that street lights were on, at the time of incident. In this context, it is
worthwhile to note that the spot panchnama (Exh.55) demonstrates that the
place of incident was opposite to 'Chitra' talkies and adjacent to 'Sham
Bhojnalaya'. Hence, sufficient light is found to be there at the place of
incident, at the time of incident, which took place at about 9.30p.m. to
10.00p.m.
9] The testimony of two witnesses PW-2, PW-4 and PW-5
depicts that they are natural witnesses and their testimony is not shattered
in the cross-examination. There was no reason for PW-2, PW-4 and PW-5
to falsely implicate the appellant/accused no.2 in the present case. Their
evidence inspires confidence. The testimony of PW-5 is not shaken during
the cross-examination with regard to the incident of accused no.2-Sham
assaulting Sunil, on his chest by means of knife. Thus, testimony of PW-5
and PW-4 corroborates with the testimony of PW-2 who is the complainant
and the testimony of PW-2 is in consonance with the contents in the FIR
(Exh.38) which is lodged on the same day.
10] As far as medical evidence is concerned, PW-6 Dr. Shekhar
performed the postmortem on the dead body of Sunil. He found following
7 Judg cr app 225-03.odt
injuries on his dead body.
i] incised would 2 x 1 x 17 cm. deep over anterior chest on left
side in mid clavical line 2 inches medial to left nipple, directing
posting posterio medially.
ii] Incised would on posterio chest on left side 6 x ½ cm. Skin
deep horizontally based, on palpation. There was fracture of 4 th
rib of left side.
11] On internal examination PW-6 Dr. Khonde found fracture of
left 4th rib. There was incised wound on pericardium anteriorly. He also
found incised wound over anterior aspect of right ventricle 1 x 3 cm,
anterior wall deep. Heart chamber was empty, blood was collected in
pericardium and extra plural space. He opined that Sunil died of
haemorrhagic shock secondary to injury to chest, puncturing the heart.
PW-6 opined that injury no.1 was sufficient to cause death in ordinary
course of nature. PW-6 stated that the injuries were possible due to knife .
Art.5 shown to him in the Court. PW-6 issued the P.M. Report (Exh.62).
12] Thus, the medical evidence supports the case of the
prosecution that deceased Sunil received injuries on his chest by means of
knife which was pierced inside and caused injury to heart, which resulted in
the death of Sunil. The medical evidence and the inquest panchnama
shows the injury on the left side chest of Sunil.
13] As far as the recovery of weapon is concerned, PW-7- PI-
8 Judg cr app 225-03.odt
Santoskumar Verma stated that accused no.2 Sham showed his
willingness to point out the place where he had kept the knife. Accordingly,
prepared memorandum of panchnama (Exh.68). The accused took out the
knife from below the cow-dung bag near the wall of his house. The knife
was having blood stains. PW-7 took charge of the knife vide seizure
panchnama (Exh.69). It is worthy to note that the C.A. Report (Exh.84)
depicts blood stains on the knife which was taken charge at the instance of
appellant. Thus the ocular testimony of the eye-witnesses corroborates with
the medical evidence. The recovery of weapon substantiates the version of
the eye-witnesses. The prosecution has established beyond reasonable
doubt that the appellant/accused no.2 assaulted Sunil by means of knife on
his chest due to which he died immediately.
14] The Hon'ble Apex Court in the case of Arjun and Another Vs.
State of Chhattisgarh reported in (2017) 3 SCC 247" observed that where
prosecution case rests upon evidence of related witness, court shall
scrutinise evidence with care as a rule of prudence and not as a rule of law.
Fact of witness being related to victim or deceased does not by itself
discredit the evidence.
15] It is well settled that if the learned counsel for the appellant
remains absent at the time of hearing, this Court can proceed in his
absence in an appeal against conviction.
16] In the case of "Surya Baksh Singh Vs. State of Uttar
9 Judg cr app 225-03.odt
Pradesh reported in (2014) 14 SCC 222", it is held that in an appeal
against conviction, absence of convict or his pleader at hearing of appeal,
appointment of amicus curiae by Court is not a mandatory course to be
followed by the High Court, in case of absence of the convict or his pleader
in an appeal against conviction.
17] In the instant case, the appellant and his counsel remained
absent. With the assistance of learned APP, I have carefully scrutinized the
evidence led by the prosecution, oral as well as documentary and decided
the appeal. The matter being old one, cannot not be kept pending any
more.
18] The learned trial Judge found that the offence is proved
against appellant/accused no.2. However, it was not under Section 302 but
it was under Section 304-II of IPC, as the incident caused due to sudden
fight and as the accused had knowledge that the injury on the chest could
cause death of Sunil. There is no appeal preferred by the State against the
judgment and order delivered by the learned trial Judge.
19] The evidence on record establishes that the accused no.2
assaulted Sunil by means of knife on his chest in a sudden fight. However,
he did so, only to cause injury to him and not to cause his death, as
accused no.2 Sham had no enmity with deceased Sunil. A quarrel between
deceased Sunil and accused no.1 took place suddenly and there was no
premeditation. The appellant/accused no.2 at that time did not have any
10 Judg cr app 225-03.odt
intention to cause death of Sunil. It appears that in the heat of anger, the
accused no.2-Sham had assaulted deceased Sunil on his chest by means
of knife. Although accused no.2 Sham had no intention to cause death of
Sunil, however, he had knowledge that the said injury would cause death of
Sunil. The learned trial Judge came to the conclusion that the
appellant/accused no.2 had committed offence under Section 304-II of the
Indian Penal Code. There is no illegality or perversity noticed in the
judgment of the trial Court. The prosecution has proved its case beyond
reasonable doubt. No interference is warranted in the judgment and order
passed by the learned trial Court. In view thereof, the appeal is liable to be
dismissed. Hence, the order:-
O R D E R
(a) Criminal Appeal No. 225 of 2003 is dismissed.
(b) The judgment and order passed by the learned Additional
Sessions Judge, Akola in Sessions Trial No. 203/1998 on
15-03-2003 stands confirmed.
(c) The sentence of appellant for the offence punishable under
Section 304-II of the IPC is maintained.
(d) The appellant is on bail. His bail bond stands cancelled. He
is directed to surrender before the learned Additional
Sessions Judge, Akola, to undergo the remaining period of
sentence. If he does not surrender within a period of four
11 Judg cr app 225-03.odt
weeks from today, the learned trial Court is directed to take
appropriate action in accordance with law.
(e) Muddemal property be dealt with as directed by trial Court
after the appeal period is over.
JUDGE
Ingole
