Arun Namdeorao Meshram vs The State Of Maharashtra
2018 Latest Caselaw 1114 Bom

                                    1                                    apeal508.04




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 508 OF 2004


 Arun s/o Namdeorao Meshram,
 Aged about 27 years, 
 Occupation - Agricultural Labour, 
 R/o Pimpalgaon Village, Tahsil-
 Ramtek, District - Nagpur.                               ....      APPELLANT


                     VERSUS


 The State of Maharashtra.                                ....      RESPONDENT


 ______________________________________________________________

             Shri Prashant Kaole, Advocate for the appellant, 
    Ms. Trupti Udeshi, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT : 14-11-2017 DATE OF PRONOUNCING THE JUDGMENT : 30-01-2018

ORAL JUDGMENT :

Challenge is to the judgment and order dated 22-7-2004

passed by the learned 2nd Ad hoc Additional Sessions Judge, Nagpur in

Sessions Trial 325/1996, by and under which the appellant is convicted

for offence punishable under 307 of the Indian Penal Code ("IPC" for

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short) and is sentenced to suffer rigorous imprisonment for five years

and to payment of fine of Rs.1,500/-.

2. Heard Shri Prashant Kaole, learned Advocate for the

appellant and Ms. Trupti Udeshi, learned Additional Public Prosecutor

for the respondent/State.

3. The gist of the prosecution case, as is unfolded during the

course of trial, is thus :

The incident occurred at 2-00 p.m. on 08-11-1996.

Injured Sarasram Bante was grazing his she-buffalo on the pandhan

near the field of the accused. The she-buffalo strayed into the fallow

land of the accused leading to an altercation. The accused whipped

out a knife from the pocket of his pant and stabbed Sarasram on his left

abdomen near chest and the ribs, thigh and hip causing bleeding

injuries. Injured Sarasram informed Sahadeo Marbate who was also

grazing cattle in the vicinity. Sahadeo Marbate in turn informed the

brother of the injured one Sheshrao. Sheshrao and Fulchand came to

the spot with bullock-cart, brought the injured in village Mahalgaon

and from there took the injured to Government Hospital, Bhandara.

Pursuant to intimation received, Assistant Sub-Inspector Madavi rushed

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to the hospital and recorded the statement of injured Sarasram. The

statement was treated as first information report (Exhibit 24), on the

basis of which Mouda police registered '0' first information report and

forwarded the papers to Ramtek Police Station. Crime 335 of 1995

was registered at Ramtek Police Station. Injured was treated at

Bhandara Hospital by Dr. Vijay Wasnik (P.W.12) who issued injury

certificate (Exhibit 60). Investigation ensued, spot panchanama

(Exhibit 26) was prepared, blood smeared soil was seized and so was

the plain soil. The clothes of the injured were produced by Sheshrao.

The accused was arrested on 26-11-1995 and while in custody gave

statement under Section 27 of the Indian Evidence Act pursuant to

which a knife, one full pant and terrycot shirt was produced by the

accused from his house. Statements of witnesses were recorded, the

seized articles were sent for chemical analysis and the culmination of

investigation led to filing of charge-sheet before the learned Judicial

Magistrate First Class, Ramtek who committed the proceedings to the

Sessions Court.

4. The learned Sessions Judge framed charge under Section

307 of the IPC, the accused abjured guilt and claimed to be tried in

accordance with law. The defence is denial simplicitor although it is

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also suggested to the injured that the accused is falsely implicated in

view of the altercation.

5. The learned Advocate Shri Prashant Kaole submits that the

conviction is against the weight of evidence on record. The first

information report is unduly delayed and so is the recording of

statements of witnesses, is the submission. The evidence of

prosecution witnesses is not credit worthy in view of the inter se

inconsistencies, is the submission.

6. Per contra, Ms. Trupti Udeshi, learned Additional Public

Prosecutor supports the judgment and order impugned and submits

that the marshelling of evidence on record and the findings recorded

do not suffer from any infirmity.

7. The only eyewitness to the incident is the injured Sarasram

Bante (P.W.1). He states that he was grazing she-buffalo near his field.

Between 1-00 to 1-30 p.m., the accused obstructed him from grazing

she-buffalo. The accused whipped out a knife and inflicted stab

injuries on the rib, thigh, chest and hip. The accused fled from the

spot, P.W.1 asked Sahadeo Marbate who was standing at some

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distance to call his brother. P.W.1 states that thereafter he became

unconscious, was taken to the hospital at Bhandara and was admitted

for a month.

The evidence of P.W.1 is not shaken in the cross-

examination. P.W.1 was suggested that he was asleep while the she-

buffalo was grazing and was not in a position to identify the assailant,

which suggestion is denied. The defence did suggest that it was not the

accused who assaulted P.W.1, however, it is apparent from the trend

and tenor of the cross-examination, that the presence of the accused in

the vicinity is not disputed.

8. Sahadeo Marbate, who is the informant, proves oral report

(Exhibit 24). He has no personal knowledge about the assault.

However, he corroborates P.W.1 to the extent that he was told by the

injured Sarasram that the accused inflicted the stab injuries.

9. P.W.3 Ganesh Bhoyar proves spot panchanama (Exhibit

26) and seizure memo (Exhibit 27). The seizure is of the sample of

mud from the spot.

10. P.W.4 Surchand Bhoyar accompanied Sheshrao to the spot

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in bullock-cart, he was with Sheshrao when the injured Sarasram was

initially brought to the village and then shifted to Bhandara Hospital.

11. P.W.5 Sabir Turak did not support the prosecution. He was

examined to prove that the accused visited his pan shop with a

bandage to his wrist. Nothing is elicited in his cross-examination to

assist the prosecution.

12. P.W.6 Sheshrao Bante is the brother of the injured, to

whom the informant conveyed that the injured Sarasram is at the

pandhan. P.W.6 states that P.W.1 had bleeding injuries on stomach, he

went back and narrated the incident to villagers and with the

assistance of villagers the injured Sarasram was taken to the village

and then to the hospital at Bhandara.

13. P.W.7 Ghanshyam Dixit, then attached to Police Station

Ramtek registered the offence and proved spot panchanama (Exhibit

26) and the seizure memo (Exhibit 27). P.W.7 has proved the

memorandum under Section 27 of the Indian Evidence Act and the

seizure of the knife discovered at the instance of the accused.

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14. P.W.8 Gulab Wadate recorded the statement of injured

Sarasram and seized the clothes of the injured produced by Sheshrao.

15. P.W.9 Shalikram Mate has deposed that police seized the

clothes of the injured in his presence and that seizure memo (Exhibit

32) bears his signature.

16. P.W.10 Kheduram Marai recorded the statement of

Sahadeo Marbate (Exhibit 24). He registered '0' first information

report and forwarded the papers to Police Station Ramtek. He has

proved '0' first information report (Exhibit 53).

17. P.W.11 Raghunath Nagpure was examined as witness to

Section 27 memorandum and the discovery of knife and clothes by

accused. He did not support the prosecution. Nothing is elicited in his

cross-examination to assist the prosecution.

18. P.W.12 Dr. Vijay Wasnik examined injured Sarasram on

08-11-1995 and noticed three stab injuries which P.W.12 described

thus:

(i) Stab injury on left hypochondrium 1" x ½" x cavity deep

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(below ribs to the left side of abdomen, omentum

herniating (layer of fat) stomach and intestine came out

i.e. protruded.

(ii) Stab wound right iliac region herniating intestine and

omentum i.e. right side of lower abdomen. 1" x 1" x cavity

deep.

(iii) Stab wound on left thigh Anterolateral aspect 2 inch below

left anterior superior iliac spine 1" x 1/2" x muscle deep.

Injuries might have been caused by hard and sharp object. Injuries

were fresh caused within six hours Injuries 1 and 2 were grievous in

nature. Patient was hospitalized in the ward.

P.W.12 proves the injury certificate (Exhibit 60) P.W.12

has deposed that after examining the knife which was sent to him vide

requisition (Exhibit 61), he concluded that injuries 1 to 3 can be caused

by the weapon. He accordingly issued certificate (Exhibit 62) and

identified the weapon in the Court to be the same weapon sent to him

for examination. P.W.12 has deposed that injuries 1 and 2 were

sufficient in ordinary course to cause death if not treated properly

within time.

19. Concededly, it is only the injured P.W.1 who could have

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deposed that he was assaulted by the accused. There is no other

eyewitness to the assault. Having closely scrutinized the evidence of

P.W.1, the conscious of this Court is satisfied that the testimony is

implicitly reliable. Nothing is brought on record for this Court to

disbelieve P.W.1. It must be borne in mind, that the testimony of an

injured witness stands on a higher pedestal than that of other

witnesses. Injuries lend assurance to the case of the prosecution that

the witness was present at the scene of occurrence. The injured is not

likely to inculpate the innocent and to exculpate the guilty. The

suggestion given to P.W.1 that he was sleeping and therefore, was not

in a position to identify the assault, is denied. The evidence of P.W.1 is

more than amply corroborated by the evidence of P.W.2 Sahadeo,

P.W.6 Sheshrao and the medical evidence on record.

20. The submission of the learned Advocate for the accused

that the evidence of seizure is of no relevance since in the chemical

analysis no blood was detected on the knife needs to be appreciated in

the context of the irrefutable fact that the accused was arrested on 26-

11-1995 and the knife was seized on 28-11-1995 i.e. about twenty days

of the incident. The discovery and seizure of the knife is duly proved.

The medical evidence that the injuries caused to P.W.1 are possible due

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to the weapon seized is a corroborative circumstance. Even if the

evidence of discovery and seizure of knife is kept out of consideration,

the ocular account of the assault by P.W.1 injured witness is confidence

inspiring.

21. The learned Advocate Shri Prashant Kaole submitted, as an

alternate submission, that even if the evidence on record is accepted,

offence punishable under Section 307 of the Indian Penal Code is not

established. The submission is noted only for rejection. The fact that a

double edged weapon was used to inflict injuries on vital part of the

body, the severity of the blow, the fact that three stab injuries were

inflicted, two of which were grievous, are circumstances suggesting

that the accused did intend to cause death and at any rate did have the

knowledge that by inflicting such injuries he may cause death or such

bodily injury capable of causing death. The evidence of P.W.12 Dr.

Vijay Wasnik shows that the injuries 1 and 2 were grievous. Not only

this, Medical officer has stated that omentum was herniating i.e., layer

of fats and stomach and intestine protruded from injuries as the

injuries were cavity deep and according to the opinion of Medical

Officer vide Exhibit 63 that these injuries are sufficient in nature of

ordinary course to cause death.

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22. The conviction under Section 307 of the IPC is

unexceptionable. In so far as sentenced is concerned, the accused was a

young man aged 23 to 24 years when the incident occurred more than

twenty-one years ago. In the factual matrix, I deem it appropriate to

alter the sentence to three years rigorous imprisonment while

maintaining the fine.

23. With this alteration in the sentence imposed, the appeal is

partly allowed.

24. The accused be taken into custody to serve the sentence.

25. He shall be entitled to set off under Section 428 of the

Criminal Procedure Code.

JUDGE

adgokar