Baban Ghanwat vs The State Of Maharashtra
2018 Latest Caselaw 367 Bom

                                                                      cri apeal 1493-11.doc

                                  
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                            CRIMINAL APPEAL NO. 1493 OF 2011

      Baban Ghanwat
      Age Adult, Occ: Agriculturist,
      Res. at Dhanwat Wadi, Chas,
      Tal Khed, District Pune
      (At present in Yerwada Jail)                                   ..Appellant

                     v/s.

      The State of Maharashtra                                       ..Respondents


      Ms. Nasreen Ayubi, Advocate appointed  for the Appellant
      Mr. Rajan Salvi APP for the Respondent-State.
        
                                       CORAM : SMT. ANUJA PRABHUDESSAI, J.
                            JUDGMENT RESERVED ON : 9TH AUGUST, 2017.
                      JUDGMENT PRONOUNCED ON : 12th JANUARY, 2018

      JUDGMENT:

1. The appellant who was accused in Sessions Case No.446 of

2010, and who shall be hereinafter referred to as the accused, has

challenged the judgment dated 11 th October, 2011 whereby the

learned Addl. Sessions Judge, Pune has convicted him for the offence

punishable under Section 307 of IPC and sentenced to undergo

rigorous imprisonment for five years and to pay fine of Rs.500/- in

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default to undergo rigorous imprisonment for one month.

2. Briefly stated the case of the prosecution is that the accused is a

neighbor of the first informant PW1 Balasaheb Awati. The accused a

chronic alcoholic. On 17.3.2010 at about 7.30 p.m. PW1 was in the

balcony of his house, watching a wedding procession. The accused

approached him and demanded money to purchase liquor. PW1

refused to give him money. Annoyed and angered by the refusal, the

accused abused and threatened PW1. He pulled PW1 towards the

rear side of his house and assaulted him with a sickle, and thereby

attempted to cause his death.

3. PW1 was taken to the hospital. PW5 Chandrakant Shekhare,

who was on duty at Khed Police Station had received information

that PW1 was admitted in Birla hospital. He visited the hospital and

recorded the statement of PW1 and registered Crime No. 52 of 2010

for offences under Section 307, 504 and 506 IPC. Further

investigation was carried out by PW3 Mahesh Dhawan. Upon

completion of the investigation, chargesheet was filed. The case

being Sessions triable, was committed to the Court of Sessions.

Charge was framed and explained to the accused. He pleaded not

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cri apeal 1493-11.doc

guilty and claimed to be tried. The prosecution examined in all five

witnesses. The statement of the accused was recorded under Section

313 Cr.P.C. The defence of the accused is that of total denial.

4. Upon considering the oral as well as documentary evidence, the

learned Addl. Sessions Judge, by the impugned judgment convicted

and sentenced the accused as stated above. Being aggrieved by the

conviction and sentence, the appellant has preferred this appeal.

5. Ms. Nasreen Ayubi, the learned Counsel for the accused has

submitted that the testimony of PW1 is not corroborated by any

independent witness. She has further submitted that the testimony

of PW3 who is the witness to the recovery panchanama does not

prove that the accused had made any disclosure statement. The

prosecution has therefore failed to prove that the sickle which is the

alleged weapon of offence, was recovered at the instance of the

accused. She has further submitted that the evidence on record

does not prove that the accused had inflicted injury on PW1 with an

intention to cause his death She therefore contends that the ld.

Judge was not justified in convicting the accused under section 307

of IPC.

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                                                                         cri apeal 1493-11.doc

6. Mr. Salvi, the learned APP has placed on record letter dated

3.7.2014 wherein the Superintendent of Yerawada Central Prison,

Pune, has reported that the accused has already undergone the

sentence and has already been released from the prison. He

therefore contends that the question in principle is only as regards

the conviction of the accused for offence under Section 307 of IPC.

The learned APP has further submitted that the testimony of the

injured witness PW1 amply proves that the accused had inflicted a

blow of sickle on his chest. The testimony of PW1, which is also

corroborated by the medical evidence sufficiently proves the overt act

of the accused.

7. I have perused the records and considered the submissions

advanced by the learned Counsels for the respective parties.

8. As it emerges from the testimony of the injured witness PW1

Balasaheb Avati vis-a-vis the first information report at Exhibit 26, on

17th March, 2010 at about 7.30 p.m. the applicant, his wife and

mother were in the balcony of their house watching a wedding

procession. The accused approached the applicant and demanded

money to purchase liquor. When PW1 declined to give money, the

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cri apeal 1493-11.doc

accused threatened to cause his death. The accused dared him to

come out of the house and thereafter took him towards the rear side

of the house. The accused pulled out a sickle which was concealed

by him under his garments and inflicted blows of sickle on his chest

and left arm. PW1 had stated that he had sustained bleeding

injuries and that when he raised alarm, the accused fled away from

the spot of the incident.

9. The testimony of PW1 reveals that he was treated at Sushrut

Hospital at Khed, and thereafter referred to YCM Hospital,

Chinchwad, where he was given further treatment. However, since

there was no bed available he was referred to Birla Hospital at Pimpri

Chinchwad. He has deposed that he was in ICU for about three

days. These witness stated that the police had visited him in the

hospital and recorded his statement/FIR at Exh. 26. The police had

also seized the blood stained clothes which were worn by him at the

time of the incident.

10. PW4 Dr. Kavita Varma is a Consultant Surgeon who was

attached to Birla Hospital, Chinchwad. She has deposed that PW1

was admitted in Birla Hospital, and that she had examined him on

pps 5 of 8

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18th March, 2010. She has stated that PW1 had sustained a stab

injury on the left side of the chest and a wound over the left arm.

She has stated that PW1 was in IDP for three days. She has further

stated that the said stab injury which was on the chest was of

grievous nature. She has produced the injury certificate, which is at

Exh. 38.

11. PW1 is an injured witness. His testimony amply proves that the

accused herein had assaulted him with a sickle. The evidence of this

witness has virtually gone unchallenged, and nothing has been

brought on record to impeach his credibility. There are neither

exaggerations nor material embellishment in his testimony so as to

doubt his credibility. It is well settled that an injured witness comes

with a built in guarantee of his presence at the scene of the crime and

is unlikely to spare his actual assailant. Hence, the evidence of an

injured witness should be relied upon unless there are grounds for

the rejection of his evidence on the basis of major contradictions and

discrepancies therein. [vide Bhajan Singh @ Harbhajan Singh &

Ors. vs. State of Haryana (2011) 7 SCC 421, Abdul Saeed vs. State

pps 6 of 8

cri apeal 1493-11.doc

of Madhya Pradesh (2010) 10 SCC 259, Durbal vs. State of Uttar

Pradesh (2011) 2SCC 676]. As stated earlier, in the instant case,

there are no omissions or contradictions in the testimony of PW1.

He has emerged as a truthful witness, and there are no reasons to

discard his testimony. Furthermore, the evidence of PW1 is also

corroborated by PW4 Dr. Kavita Varma. Her testimony, vis-a-vis the

medical report clearly indicates that PW1 had suffered stab injury on

the left arm as well as on the anterior chest wall. The said injury

was of grievous nature and was caused by sharp edged cutting

weapon. The testimony of these two witnesses, which has virtually

gone unchallenged, amply proves that the accused had assaulted the

first informant by means of a sickle.

12. The next pivotal question which arises is whether the evidence

adduced by the prosecution proves that the accused had inflicted the

injuries on PW1 with an intention of committing his murder. Suffice

it to say that the question whether the assailant intended to commit

murder of another person would depend upon the facts and

circumstances of each case. To justify a conviction under Section

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307 IPC the prosecution has to establish not only an overt act done

by the accused, but has to further establish that such an overt act was

committed with an intention of committing murder or with a

knowledge that such act would cause death. Once such intent or

knowledge is proved, the nature of injury inflicted pails into

insignificance.

13. In the instant case, the evidence of PW1 indicates that the overt

act was preceded by threat to cause death. The accused who had

come armed with a weapon had inflicted a blow on the vital part of

the body. Having regard to the nature of the weapon used by the

accused, nature of injury and the situs of the injury, in my

considered view, the learned Judge was justified in attributing intent

as well as knowledge to the accused and consequently holding him

guilty of offence under Section 307 of IPC.

14. For the reasons stated above, the appeal has no merits, and is

hereby dismissed.

                                                 (ANUJA PRABHUDESSAI, J.)  




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