Bombay High Court
Khushal S/O Gujaram Raipure And ... vs State Of Maharashtra,Thr.Pso.Ps ... on 18 January, 2018
Bench: R. B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.469 OF 2002
1 Khushal s/o. Gujaram Raipure,
Aged 30 years, Occupation Labour,
R/o. Nara, Police Station Jaripatka,
Nagpur
2 Pravin s/o. Gajanan Raipure,
Aged 25 years, Occupation Education,
R/o. Manewada, C.D. Nagar,
Plot No. 117, P.S. Ajni, Nagpur ...APPELLANTS
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer,
Police Station Jaripatka Nagpur ...RESPONDENT
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Mr. R.B. Gaikwad, counsel for appellants.
Mr. A.V. Palshikar, Addl. Public Prosecutor for respondent / State.
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CORAM:
ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 09.10.2017
DATE OF PRONOUNCING THE JUDGMENT
: .01.2018
JUDGMENT
The appellants seeks to assail the judgment and order
dated 23.8.2002 passed by the 7th Adhoc Assistant Sessions Judge,
Nagpur, in Sessions Trial 619 of 2000, by and under which the
appellants (hereinafter referred to as "the accused") are convicted
for offence punishable under section 307 of Indian Penal Code
("IPC" for short) and are sentenced to suffer rigorous
imprisonment for period of ten years and to payment of fine of Rs.
200/- each.
2 Heard Shri R.B. Gaikwad, the learned counsel for the
accused and Shri. A.V. Palshikar, the learned Additional Public
Prosecutor for the respondent State.
3 One Chandrashekhar Mukunda Raipure lodged oral
report at the Jaripatka Police Station on 8.11.1999 (Exh. 24), the
gist of which is thus:
The informant, a student of standard X is residing at
Naragaon within the jurisdiction of Jaripatka Police Station,
Nagpur with his family owned buffaloes. The informant was
proceeding towards Hanuman Temple at 7.00 p.m. in the evening
to engage a band party for the customary procession of buffaloes.
However, his younger brother Nandkishor came searching and told
the informant that two persons entered the house with sticks and
are abusing and beating the family members. The informant
rushed to his house. The accused were abusing and beating his
parents. The informant snatched a stick from the hands of accused
Khushal Raipure. The mother of the informant snatched the stick
from the hands of the informant. Accused Khushal Raipure
whipped out a sword stick which was sticked near his waist. He
was threatening the family members of the informant and was
moving in the reverse direction. The cousin of the informant
Sandip caught Khushal Raipure from behind. Khushal turned back
and stabbed with the sword stick and ran away. Sandip collapsed
due to the injury. The informant, his mother Usha Raipure, uncle
Prakash Raipure, Mrs. Krishnabai Raipure and one Shalik
attempted to stop the flow of blood by tying a dupatta around the
injury. Injured Sandip was taken to Police Station on a two
wheeler and as instructed by the police, injured Sandip was taken
to Meyo Hospital. The report states that the injured and Sandip is
the first cousin of the informant and is a neighbour. The accused
Khushal and Pravin and the family members of the informant are
distant relatives. 1 ½ years ago, Gujaram Raipure administered
poison to the informant's cow. The cow died and a report was
lodged. Gujaram and others are facing trial. The accused Khushal
Raipure and Pravin Gajanan Raipure grievously injured Sandip to
take revenge.
4 The Jaripatka Police registered offence punishable
under section 307 read with section 34 of IPC. The investigation
ensued and upon completion thereof, charge sheet was filed in the
Court of Chief Judicial Magistrate, Nagpur who committed the
proceedings to the Sessions Court. The learned Sessions Judge
framed charge under section 307 read with section 34 of IPC, the
accused abjured guilt and claimed to be tried in accordance with
law. The defence is of false implication.
5 The injured Sandip Raipure is examined as PW 1.
Injured Sandip states that at 7.00 p.m. on 8.11.1999 he was on the
way to temple. The informant Chandrashekhar had gone to
arrange a band. One Dinesh informed PW 1 that a quarrel was
going on in his house. Dinesh informed that accused Khushal and
Pravin are quarreling, PW 1 returned to his house and saw that
Khushal had raised a stick to beat Chandrashekhar. The mother of
PW 1 was also present. When PW 1 approached the accused,
accused Pravin caught PW 1, accused Khushal whipped out a gupti
and stabbed PW 1 in the stomach. PW 1 collapsed and the
accused fled. The intestine came out due to the injury, Sharma
and Chandrashekhar tied dupatta around the injury and took PW
1 to Police Station and then to the hospital. PW 1 states that a
month prior to the incident, he disclosed to his uncle Gulabrao
that Pravin was habituated to liquor and Pravin had threatened
PW 1 of consequences.
Certain statements as regards the earlier incident of
disclosure made about Pravin consuming liquor, are brought on
record as an omissions. PW 1 admits that Chandrashekhar
snatched stick from accused Khushal in his presence. PW 1 does
not accept that it was thereafter that Pravin showed the weapon
and was going in a reverse direction to save himself. He denies
the suggestion that PW 1 caught hold of Pravin and since Pravin
turned back PW 1 suffered accidental injury. He denied the
suggestion that the accused were falsely implicated.
6 The informant Chandrashekhar Raipure is examined
as PW 2. He states that upon coming to know from his brother
Nandkishor that the accused had entered his house with sticks and
were quarreling with his family members, he reached home and
saw both the accused abusing Sandip and his family members.
This was taking place opposite the residences of PW 2 and the
injured Sandip. PW 2 confronted Khushal who raised stick to beat
PW 2. The stick was snatched from Khushal by PW 2. Khushal
whipped out a sword stick from waist to assault PW 2, who side
stepped to save himself. Accused Khushal thereafter stabbed
injured PW 1 and the accused fled.
PW 2 admits that when Khushal was brandishing the
weapon, he was proceeding in reverse direction in order to save
himself. PW 2, however, denies the suggestion that Sandip came
from behind and caught Khushal. PW 2 denies the suggestion that
Sandip sustained accidental injury since Khushal turned back.
7 PW 3 - Ushabai, the mother of PW 2 Chandrashekhar
is examined as an eye witness. She has deposed that the accused
came to her house and started abusing, then Chandrashekhar
came and Khushal raised the stick to beat Chandrashekhar.
Chandrashekhar snatched the stick from Khushal who then took
out a gupti from his waist. Sandip reached the scene. Accused
Pravin caught Sandip and accused Khushal stabbed Sandip in the
stomach by the sword stick (Gupti) and then both fled.
The statement that Pravin caught hold of Sandip and
Khushal assaulted Sandip by Gupti is an omission. She denies the
suggestion that Khushal was backing of in a reverse direction,
Sandip came from behind and caught Khushal and Khushal turned
back and Sandip sustained injury. She states that portion marked
A in her 161 statement is incorrect.
8 PW 4 - Ashok Chaudhari is examined to prove the
seizure of the clothes and the knife at the instance of accused
Khushal. Seizure panchanama is Exh. 28.
In the cross examination, it is admitted that the witness was
standing outside the house of Khushal and Khushal and two others
entered the house and came out after 10 minutes. PW 4 states
that he and others returned to the Police Station at 10.00 p.m. and
that it did not happen that he and others went to the house of
accused Khushal between 5.00 to 5.30 p.m.. This evidence
assumes significance since Exh. 28 panchanama is shown to have
been recorded between 5.15 p.m. and 7.00 p.m. on 11.11.1999.
9 PW 5 - Suresh Sharma is the other eyewitness to the
seizure of the knife and the clothes who admits signature on Exh.
28. PW 5 also states in the cross examination that he went to the
Police Station between 10.30 to 11.00 a.m. and returned from the
Police Station at 11.30 a.m..
10 PW 6 Narayan Barapatre, who was then attached to
Police Station Jaripatka recorded the First Information Report and
registered offence against the accused.
11 PW 7 - Gjanan Mhatre is the Investigating Officer who
recorded the statement of witnesses including that of the injured
Sandip. The omissions which are brought on record in the
evidence of the prosecution witnesses are proved in the cross-
examination. He denies that panchanama Exh. 28 was recorded in
the Police Station and the signatures of the witnesses were
obtained in the Police Station.
12 The injury certificate which is exhibited on admission
(Exh. 42-A) is issued on 20.7.2002 which purports to record that
the injured was admitted on 8.11.1999 and discharged on
18.11.1999. The nature of injury is described as stale wound of
size 3 cm x 2 cm. The depth of the injury is not mentioned.
13 A close scrutiny of evidence would reveal that the
finding recorded by the learned Sessions Judge is that accused
Pravin caught hold of injured Sandip who was then stabbed by
accused Khushal. The finding of the learned Sessions Judge that
accused Pravin shared a common intention with accused Khushal
to cause injury to Sandip is predicated on the finding that Pravin
caught hold of injured Sandip who was then assaulted by accused
Khushal. The evidence of PW 3 Ushabai that accused Pravin
caught hold of injured Sandip and then accused Khushal inflicted
the sword stick blow, is an omission. It is true that injured Sandip
does depose on similar lines, but then the informant PW 2
Chandrashekar has categorically stated that accused Khushal was
backing of while brandishing knife, he was caught by the injured
Sandip from behind, accused Khushal turned and inflicted the
blow. PW 2 has not attributed any role to accused Pravin. PW 2
has not stated that accused Pravin caught hold of the injured and
accused Khushal then inflicted the knife blow. Such a role is not
attributed to accused Pravin in the First Information Report which
was lodged with promptitude. The conscious of this Court is
satisfied that there is no cogent evidence on record to convict
accused Pravin for offence punishable under section 307 of IPC
even with the aid of section 34 of IPC. The evidence on record is
not cogent enough to record a finding that accused Pravin shared
a common intention with accused Khushal to cause injury to
Sandip. Accused Pravin deserves to be acquitted.
14 In so far as accused Khushal is concerned, even if the
evidence on seizure of knife is kept out of consideration, since the
evidence is suspect, there is clinching ocular evidence that he
assaulted injured Sandip causing injury. However, the burning
question is whether the evidence on record is sufficient to hold
that accused Khushal intended to cause death or to cause such
bodily injury as is to the knowledge of the accused, likely to cause
death or which injury is sufficient in the ordinary course of nature
to cause death. The evidence of the informant PW 2 is to the
effect that accused Khushal was brandishing knife and was
backing of in the reverse direction to save himself. The injured
Sandip came from behind and caught hold of accused Khushal
who turned and inflicted a sword stick blow on the injured Sandip.
The injury certificate Exh. 42-A is issued on 20.7.2002 while the
incident occurred on 8.11.1999. It is true that the injury
certificate is exhibited on admission. However, there is no
contemporaneous record to throw light on the nature and extent
of injury and the treatment received. The injury certificate records
that the injured Sandip was admitted in the hospital for 10 days.
However, the depth of the injury is not mentioned in the injury
certificate. It would be unsafe, in the state of evidence, to record a
finding that accused Khushal intended to cause death or to cause
such bodily injury as to his knowledge is likely to cause death.
The prosecution has further failed to establish by cogent evidence
that the injury was a grievous injury within the meaning of section
320 of IPC. The accused Khushal is however, liable to be
convicted under section 324 of IPC.
15 The incident occurred more than 17 years ago.
Accused Khushal was in custody for more than two months as
under trial prisoner and then as convict. Khushal was then 28
years old. Concededly, the accused and the injured are relatives. I
am inclined to alter the sentence to imprisonment already
undergone. In the result, I pass the following order:-
(i) Accused Pravin son of Gajanan Raipure is acquitted of
offence punishable under section 307 read with section 34
of IPC.
(ii) His bail bond stands discharged and fine paid, if any,
shall be refunded.
(iii) Accused Khushal son of Gujaram Raipure is acquitted
of offence punishable under section 307 read with section
34 of IPC and is instead convicted for offence punishable
under section 324 of IPC and is sentenced to imprisonment
already undergone.
(iv) The appeal is partly allowed and disposed of in the
above terms.
JUDGE
Belkhede, PA
