Indrapal Chintaman Nitnavare vs The State Of Mah.Thr.Pso Nagpur
2018 Latest Caselaw 188 Bom

                                        1                                        apeal129.04




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 129 OF 2004


 Indrapal s/o Chintaman Nitnavare,
 Aged 25 years, 
 Occupation - Private Driver, 
 R/o Saraswati Nagar, Near the house
 of Dashrath Shahu, P.S. Dhantoli, Nagpur.                       ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through P.S.O., Dhantoli, Nagpur.                               ....       RESPONDENT


 ______________________________________________________________

               Shri R.M. Daga, Advocate for the appellant, 
     Shri N.H. Joshi, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

                             DATED    :   9
                                               JANUARY, 2018
                                            th



 ORAL JUDGMENT : 

The appellant is aggrieved by the judgment and order

dated 14-1-2004 passed by the learned 4 th Ad hoc Additional Sessions

Judge, Nagpur in Session Trial 442/2002, by and under which the

appellant (hereinafter referred to as the "accused") is convicted for

offence punishable under Section 324 of the Indian Penal Code ("IPC"

2 apeal129.04

for short) and is sentenced to suffer rigorous imprisonment for three

years and to payment of fine of Rs.1,000/- and is further convicted for

offence punishable under Section 353 of the IPC and is sentenced to

suffer rigorous imprisonment for two years and to payment of fine of

Rs.1,000/-.

2. Heard Shri R.M. Daga, learned Advocate for the accused

and Shri N.H. Joshi, learned Additional Public Prosecutor for the

respondent.

3. The submission of the learned Advocate for the accused is

that the medical evidence is inconsistent with the version of the injured

and the other eyewitnesses. The seizure of the alleged weapon of

offence which according to the prosecution is a spear, is not proved

and is rightly shut out from consideration by the learned Sessions

Judge, and other than the ocular evidence of the eyewitnesses

including the injured, there is nothing to connect the accused with the

crime, is the submission.

4. Per contra, Shri N.H. Joshi, learned Additional Public

Prosecutor for the respondent would submit that Ranjeetsingh, Head

3 apeal129.04

Constable, who is examined as P.W.6 is an injured witness. Nothing is

demonstrated by the defence for this Court to hold that the testimony

of the injured witness is not believable, is the submission. The

evidence of the injured witness Ranjeetsingh, which is required to be

placed on the highest pedestal, is more than amply corroborated by the

evidence of P.W.1 API Baban Chate, who was compelled to fire from

his official weapon, in self defence since the accused was brandishing a

spear and assaulted P.W.6 Ranjeetsingh. The evidence of both

Ranjeetsingh and Baban Chate has withstood the test of cross-

examination and is not shaken, is the submission. The learned

Additional Public Prosecutor would also submit that the evidence of

P.W.1 Baban Chate and the injured P.W.6 Ranjeetsingh is corroborated

by the evidence of P.W.7, P.W.8 and P.W.9 who are eyewitnesses to the

incident.

5. I have given my anxious consideration to the evidence on

record, and having done so, I see no reason to take a view different

from that taken by the learned Sessions Judge. The prosecution has

established, beyond reasonable doubt, that the accused assaulted P.W.6

Ranjeetsingh with spear when the police went to the roof of the house

of the accused to apprehend him. There is clinching ocular evidence of

4 apeal129.04

the assault and the fact that the seizure of the spear is not proved, is of

little significance. The evidence of the eyewitnesses, if at all

corroboration is to be searched, is again corroborated by the medical

evidence. Concededly, both the accused who suffered a bullet injury in

the leg and the injured P.W.6 Ranjeetsingh were medically examined

with promptitude. The injury certificate as regards the injured P.W.6

Ranjeetsingh, although admitted by the defence, appears to have been

inadvertently not marked as exhibit. The inadvertent error is again of

little significance since the injury certificate is admitted by the defence

and is duly proved. The injury certificate reveals deep abrasion of

3 cm. x 2 cm x 1 cm. The medical opinion is that the injury is fresh

and could have been caused by hard and blunt edged blade object. I

am not, therefore, persuaded to agree with the learned Advocate for

the accused that the medical evidence is inconsistent with the ocular

evidence.

6. It is proved beyond reasonable doubt that the accused did

assault a public servant and the intention was to prevent the public

servant from discharging his duties. The injured and the other police

staff were attempting to apprehend the accused who was brandishing a

spear. In this attempt, P.W.6 Ranjeetsingh was assaulted by spear and

5 apeal129.04

the accused was thereafter injured by a revolver shot fired by P.W.1.

Both the offence is to-wit under Sections 324 and 353 of the IPC are

duly established and the conscious of the Court is satisfied that there is

no hypothesis other than guilt, which is reasonably discernible from

record.

7. In so far as sentence is concerned, the incident, in which

the accused also suffered a gun shot injury occurred in 2001, the

learned Additional Public Prosecutor Shri N.H. Joshi has invited my

attention to a chart which shows that after the incident some offences

are registered against the accused. The latest offence is registered in

2006. However, since no offence, prima facie, appears to have been

registered in the last twelve years, the injury suffered is an abrasion,

and the incident is to a certain extent hazy, I am inclined to alter the

sentence particularly as the accused has already undergone custody of

one year and one month as under trial prisoner and convict.

8. In the circumstances, I deem it appropriate to alter the

sentence to already undergone. However, while the sentence of

imprisonment is altered to already undergone, I further deem it

appropriate to enhance the fine for both the offences to Rs.10,000/-

6 apeal129.04

(Rupees Ten Thousand) each. If the fine is recovered, the same shall

be paid to P.W.6 Ranjeetsingh as compensation. Needless to say, that

if the fine is not paid within one month, the sentence awarded by the

learned Sessions Judge shall revive and the accused shall be taken into

custody to serve the remainder of the sentence.

9. The appeal is partly allowed and is disposed of in the

above terms.

JUDGE

adgokar