Ramchandram Samayya Latkari vs State Of Maharashtra Thr. Police ...
2018 Latest Caselaw 166 Bom

        J-apeal70.17.odt                                                                                                   1/9


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


                                   CRIMINAL APPEAL No.70 OF 2017


        Ramchandram Samayya Latkari,
        Age about 42 years,
        Occupation : Labourer,
        R/o. Gummalkonda, Tahsil Sironcha,
        District Gadchiroli.                                                        :      APPELLANT

                           ...VERSUS...

        State of Maharashtra,
        Through its police Station Officer,
        Police Station, Asarali, 
        District Gadchiroli.                                                        :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A.M. Kukday, Advocate for the Appellant.
        Shri A.V. Palshikar, Additional Public Prosecutor for the Respondent-State.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 8 JANUARY, 2018.

ORAL JUDGMENT :

1. This is an appeal preferred against the judgment and order

dated 11th August, 2016, passed in Sessions Case No.41/2014 thereby

convicting the appellant of the offence punishable under Section 307 of

the Indian Penal Code and sentencing him to suffer rigorous

imprisonment of ten years and also to pay fine of Rs.2,000/-, together

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with default sentence of rigorous imprisonment of six months.

2. The appellant is the eldest son of the complainant Samayya

Latkari. The incident occurred in between 7.00 p.m. and 9.00 p.m. of

14.2.2014 in front of the house of Samayya Latkari, situated at

Gummalkonda, Tahsil Sironcha, District Gadchiroli. It is alleged that the

appellant was annoyed with his father Samayya for not providing him

enough food to extinguish his hunger. When the appellant asked for

more food from his father, his father told him that whatever was

available in the house was already consumed by the appellant and that

nothing had been left over. In the anger, the appellant collected dry

leaves of Tendu-palm and setting them afire, the appellant tried to set

ablaze the house of his father. His father, somehow managed to foil the

attempt of the appellant in setting afire his house. But, it added only to

further annoyance of the appellant. The appellant then picked up an axe

kept in the house and ran on his father in an attempt to finish him. His

father ran out of the house and went to the road in front of the house

where the appellant succeeded in catching hold of his father and

assaulting him by means of an axe. He gave axe blows to the left eye

and left check of his father Samayya. His father fell unconscious on the

ground. By that time the neighbours gathered at the spot of incident and

took him to the house of one of the neighbourers, Vyankati Kumari.

Since it was night time, the villagers could not do anything to provide

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medical aid or police help to Samayya. Such assistance was given to him

on the next day.

3. Samayya was required to be operated upon at a hospital at

Nagpur. He lost his left eye permanently. However, he survived the

attack. Meanwhile, F.I.R. had been lodged with Police Station Asarali

and investigation had been started. It was lodged by Samayya's son

Tirupati in the morning of 15.2.2014 at about 11.00 a.m. Spot

panchanama was prepared after registration of the offence under Section

3 of Indian Penal Code against the appellant. Section 27 Indian Evidence

Act statement was also recorded after arrest of the appellant and axe was

recovered at his instance. Necessary seizures were made. Statements of

the witnesses were also recorded. After completion of the investigation,

charge-sheet was filed against the appellant.

4. On merits of the case, learned Sessions Judge found that the

offence of attempt to commit murder punishable under Section 307 of

the Indian Penal Code was proved beyond reasonable doubt against the

appellant and therefore, by the impugned judgment and order, the

learned Sessions Judge convicted the appellant for said offence and

sentenced him to suffer rigorous imprisonment of ten years and also to

pay fine of Rs.2,000/- together with default sentence. Not being satisfied

with the same, the appellant is before this Court in the present appeal.

5. I have heard Shri A.M. Kukday, learned counsel for the

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appellant and Shri A.V. Palshikar, learned Additional Public Prosecutor

for the Respondent/State. I have gone through the record of the case

including the impugned judgment and order.

6. Now, the following points arise for my consideration :

i) Whether the State has proved beyond reasonable doubt that in the night of 14.2.2014, the appellant launched a murderous assault on his father, Samayya, and thereby attempted to commit murder of his father ?

ii) Whether the impugned judgment and order require any interference ?

7. Shri A.M. Kukday, learned counsel for the appellant submits

that the trial Court has not considered properly the discrepancies in the

prosecution evidence and also the reasonable possibility of father of the

appellant sustaining injuries to his left check and left eye by accidentally

falling on sharp stones. He also submits that there is a doubt about

recovery of the axe at the instance of the appellant under Section 27 of

the Indian Evidence Act, because the father, Samayya, has deposed

before the Court that after the assault, the appellant had thrown away

the axe used in assaulting Samayya at the spot of incident itself and then

he had run away. He also submits that the spot panchanama is not

consistent with the evidence of the victim of crime at least as regards the

situation of the spot of incident. The submissions, however, are

disagreed to by Shri A.V. Palshikar, learned A.P.P. for the State. He

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submits that no foundation has been laid by the appellant to prove his

defence that there was a reasonable probability of the victim of crime

sustaining injuries because of his accidental fall on sharp stones. He

further submits that there is no discrepancy or inconsistency whatsoever

in the entire prosecution evidence.

8. Upon going through the evidence available on record, I find

that there is no substance in the argument of learned counsel for the

appellant and I find merit in the submissions of learned Additional Public

Prosecutor for the State.

9. Although, now a defence has been taken that there was a

possibility of the injured person, Samayya, sustaining the grievous

injuries to his left eye and left check by his accidentally falling on sharp

stones, the cross-examination of PW 4, Samayya, taken by the accused

nowhere suggests that any foundation in this regard has been laid by the

appellant. No suggestions whatsoever on this point have been given to

PW 4, Somayya. On the contrary, the questions put to this witness by the

appellant suggest that it is acceptable to the appellant that he ran after

the injured person. The relevant suggestion given to PW 4 Somayya is

that ".........It is not correct to say that when Ramchandra rushed behind

me, I fell down on the ground." There is no reference made to

occurrence of any fight or scuffle between the appellant and his father,

Samayya. Of course, in the arrest form (Exh.-46), it is mentioned that

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there were present on the person of the appellant some injuries. But, I

must say, mere presence of such injuries on the person of the appellant

would not by itself be sufficient to draw an interference that these

injuries were the result of a prior fight between the appellant and the

accused. There has to be some material brought on record by the

accused so as to enable the Court to accept the defence that possibility of

occurrence of a scuffle between two persons is not ruled out. Then, there

is also no material brought on record by the accused to show that there

were present at the spot of incident some stones having sharp edges.

Therefore, one has to say that the defence taken by the appellant was not

brought even within the province of a reasonable probability and

therefore, one would not be incorrect to say that the appellant has not

proved his defence in the present case in any manner. This is what the

learned Sessions Judge has also found and rightly so.

10. The evidence of PW 4, Samayya, is clear enough to prove the

fact that in the night of 14.2.2014, he was dangerously assaulted by the

appellant in which, axe blows were given to his left eye and left check

which resulted in his losing left eye. There is nothing in his entire

evidence to entertain any manner of doubt about credibility of PW 4

Samayya. Afterall, PW 4 is a witness who is father of the appellant and a

father usually would have an inclination to protect his son unless, his son

behaves in a manner that any father would think that his son is no more

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worthy of any protection because of his criminal behaviour. There is

nothing available on record from which one can say that there was some

ulterior motive or extraneous reason for the father to falsely implicate his

son. On the contrary, deposing against the son, as has been done in the

present case by PW 4, Samayya, would only show that the incident was

true, requiring him to book his son for the offence he committed.

11. The evidence of PW 4, Samayya, also receives support from

the deposition of PW 2, Vyankati Kumari. He says that he had seen the

accused as standing at the spot of incident while his father, Samayya,

was lying on the ground in an unconscious condition. He has also stated

that at that time he saw the appellant as holding an axe in his hand. The

spot panchanama (vide Exh.-16) also supports the case of the

prosecution. There is no inconsistency between the spot of the incident

and the evidence of material prosecution witnesses, especially PW 2

Vyankati Kumari and PW 4 Samayya. There is, however, some

discrepancies relating to the spot from where the axe was seized.

According to PW 4, Samayya, the axe was thrown at the spot of incident

itself by the appellant. But, the spot panchanama does not say anything

about presence of the axe at the spot of incident. Section 27, Evidence

Act recovery of the axe also discloses that the spot of recovery at the

instance of the accused was the house of the accused/appellant. But, this

discrepancy is of such a nature as not to unsettle the evidence of the eye

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witness PW 4, Samayya, in it's core form. The core evidence PW 4,

Samayya, on the point of murderous assault stated earlier, receives

support from the evidence of PW 2, Vyankati Kumari, and spot

panchanama (vide Exh.-16) and, therefore no importance could be given

to recovery of the axe from the spot which was different from the one

stated by PW 4 Samayya.

12. The evidence of two doctors, PW 7 and PW 10, also lends

support to the evidence of PW 4 Samayya. There are no doubtful

circumstances present in their entire evidence and so it is worthy of

credence.

13. Such being the nature of the prosecution evidence, one can

say that it is neither discrepant nor unreliable, as tried to be submitted by

learned counsel for the appellant. In these circumstances, I do not think

that learned Sessions Judge could have reached a different conclusion

than the one he has made in the present case.

14. The evidence discussed earlier shows that blow of axe, a

dangerous weapon, was given by the appellant to the left eye and left

check of his father. Face is a vital organ of human body and when a

blow of dangerous weapon like an axe is given to the face, it can result,

in a given case, in fatality for one would not know where precisely it

would land on the face. Such a blow when given, is capable of impacting

severely any part of the face including fore-head and area near or below

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the ears, and in that case, it could prove to be fatal. It would then follow

that it could be presumed that in all probability such a blow is likely to

result in the death of a person to whom the blow is dealt, unless the

providence of the victim saves him, and that the assailant could be

presumed to have such knowledge. In the present case, though axe

blows were dealt to the vital organ like face of Samayya, the father of the

appellant, it was only sheer luck of Samayya that he could survive the

murderous assault made upon him by his son. Therefore, I must say, all

the ingredients of Section 307 of the Indian Penal Code have been

proved beyond reasonable doubt in the present case. Learned Sessions

Judge has rightly found the appellant as guilty of the offence punishable

under Section 307 of the Indian Penal Code. The sentence has also been

properly given by adopting a balanced approach. Therefore, there is no

scope for making any interference with the impugned judgment and

order. Both the points are answered accordingly.

15. The appeal stands dismissed.

JUDGE okMksns