Balu @ Govind Keshao Mane vs The State Of Mah.Thr.Pso Ps Civil ...
2018 Latest Caselaw 770 Bom

 apeal131.06.J.odt                         1




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

                     CRIMINAL APPEAL NO.131 OF 2006

          Balu @ Govind Keshao Mane,
          Aged 25 years, Occupation: Nil,
          R/o Laoas Tekdi, Gautam Nagar,
          Akola, District Akola.        ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra,
          through Police Station Officer,
          Police Station Civil Lines,
          District Akola.                           ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Vinay Dahat, Advocate for Appellant.
          Shri V.P. Gangane, APP for Respondent-State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:             22  nd  JANUARY 2018.


 ORAL JUDGMENT



 1]               The   appellant   is   convicted   for   offence   punishable

under section 308 of the Indian Penal Code ('IPC' for short) and is

sentenced to suffer rigorous imprisonment for five years and to

payment of fine of Rs.500/-. This judgment and order of the 5 th

Ad-hoc Additional Sessions Judge, Akola in Sessions Trial

65/2005 is impugned in the appeal. The appellant faced trial

along with Dadu @ Vitthal Khanduji Gaikwad and Vijay Khanduji

Gaikwad, who however, have been sentenced for offence

punishable under section 323 of IPC.

2] Heard Shri Vinay Dahat, the learned Counsel for the

appellant and Shri V.P. Gangane, the learned Additional Public

Prosecutor for the respondent-State.

3] The complainant Prakash is the son-in-law of accused

Vijay Gaikwad. The appellant (hereinafter referred to as 'the

accused') is nephew of Vijay Gaikwad and the cousin of the wife

of the injured Prakash. The motive for the assault leading to the

conviction of the accused is stated to be that the injured Prakash

and the daughter of accused Vijay Gaikwad entered into

matrimonial alliance, against wishes of the family of the bride.

4] The case of the prosecution is that in the morning

hours of 26.03.2005, which was the Rangpanchami day, injured

Prakash Kamble (P.W.1) was at his house, his friend Rahul

Sadanshiv (P.W.6) came and invited Prakash for a meal.

Prakash and Rahul went to the house of Rahul, spent sometime

there and were proceeding towards the house of injured Prakash,

when the incident occurred. P.W.1 Prakash and P.W.6 Rahul had

reached in front of the house of Vijay Gaikwad, the accused tried

to spray and smear colour on the face of P.W.6 Rahul, this was

objected to by injured Prakash. The accused inflicted knife blows

on the stomach of Prakash. Accused Vijay Gaikwad assaulted

Prakash by stone and iron strip and accused Dadu @ Vitthal

assaulted Prakash by kicks blow on the back. Injured Prakash was

taken to the hospital by Kisan Kamble, Arjun Kamble and Amol

Kokate. A report was lodged by injured Prakash (Exh.42) on the

basis of which the Police Station Civil Lines, Akola registered

offence punishable under section 307 read with section 34 of the

Indian Penal Code. Investigation ensued, upon completion of

which charge-sheet was submitted in the court of Judicial

Magistrate First Class Court 5, Akola who committed the

proceedings to the Sessions Court. The learned Sessions Judge

framed charge under section 307 and 323 read with section 34 of

IPC. The accused abjured guilt and claimed to be tried.

The defence of the accused is that on the date of the incident,

which was the Rangpanchami day, the injured P.W.1 was under

the influence of liquor and was behaving disorderly. The injured

complainant suffered injury due to his own weapon, is the

defence.

5] Shri Dahat, the learned counsel for the appellant has

strenuously urged that the judgment and order militates against

the weight of evidence on record. The evidence is marred by inter

se inconsistencies and other embellishments, is the submission.

The alternate submission is, even if the evidence is accepted at

face value, the offence made out would be under section 324 of

IPC. The injuries suffered by P.W.1 Prakash are not grievous and

the evidence on record does not suggest either intention to cause

death or that the assault was committed with the knowledge that

either death or injury leading to death may be caused, is the

submission. Per contra, the submission of the learned A.P.P. is that

the ocular evidence is consistent. The wife of the injured Prakash,

Sonal Kamble (P.W.4) has deposed against her own relatives

including father Vijay Gaikwad. The evidence of P.W.1 Prakash is

amply corroborated by the evidence of Kausalya Kamble the

mother of the injured Prakash (P.W.1), P.W.3 Mangala Kamble,

P.W.4 Sonal Kamble, P.W.5 Bharat Varote and P.W.6 Rahul

Sadanshiv, is the submission. The learned A.P.P. would submit

that the evidence of P.W.10 Dr. Mohd. Aslam Jamal s/o Abdul Arif

is that the injury three is grievous injury. The requisite knowledge

that the injury may cause death must be attributed to the accused,

is the submission.

6] I have given my anxious consideration to the evidence

on record, and having done so, in my opinion the prosecution has

proved beyond reasonable doubt that P.W.1 injured witness was

assaulted knife by the accused. The burning question, is however,

whether in the teeth of evidence on record, is there any substance

in the submission of Shri Dahat that the offence made out will be

under section 324 of IPC and not under section 307 of IPC.

7] The incident is some what blurred. Concededly, the

incident occurred on the Rangpanchami festival. The incident

occurred in front of the house of accused Vijay Gaikwad, who is

the father-in-law of the injured Prakash. It is not the case of the

prosecution, that there was any premeditated design to assault

Prakash. P.W.1 Prakash states that the reason for the altercation

was the attempt of the accused to smear colour on the face of

P.W.6 Rahul. P.W.1 Prakash states that he tried to object and was

assaulted by accused with knife.

8] P.W.3 Mangala, the sister-in-law of injured Prakash is

examined as eye witness. She states that she reached the scene of

the incident and saw the knife assault. P.W.3 has corroborated

P.W.1 Prakash on material aspects.

9] Sonal, who is the daughter of accused Vijay Gaikwad

and the wife of P.W.1 Prakash is examined as P.W.4. She is an eye

witness who has deposed that accused Balu inflicted knife blow on

her husband Prakash. She states that she picked up a stone and

threw the stone towards Balu. The stone hit Balu's hand and the

knife fell down. She has deposed that her father Vijay Gaikwad

and accused Dadu assaulted her husband Prakash by stone and

iron strip. P.W.4 Sonal was subjected to gruelling

cross-examination from which her testimony has emerged

unshaken.

10] The incident is also witnessed by P.W.5 Bharat

Varote, who corroborates the testimony of P.W.1 Prakash, P.W.3

Mangala and P.W.4 Sonal.

11] Rahul, who was with P.W.1 Prakash when the

incident took place is examined as P.W.6. His version is consistent

with the version of the other eye witnesses.

12] The evidence of eye witnesses to the incident is

consistent, credit worthy and confidence inspiring. In view of the

submission of the learned counsel for the accused that the

evidence is marred by several infirmities, I have closely scrutinized

the cross-examination to satisfy the conscious of the court that the

evidence of the eye witnesses on the core or the substratum of the

prosecution version is not rendered suspect. Having closely

scrutinized the cross-examination of the eye witnesses, I do not

find any serious infirmity or embellishment which would dent the

credibility of the evidence of the eye witnesses.

13] The defence that the injuries were suffered by P.W.1

Prakash by the weapon which he was carrying, is noted only for

rejection. The defence is not probablized even on the touchstone

of preponderance of probabilities. The suggestions given to the

prosecution witnesses that Prakash was under the influence of

liquor, and it has indeed come on record that Prakash and Rahul

did intend to consume liquor, is not sufficient to probablize the

defence. The ocular evidence and the medical evidence both

exclude the possibility which is put-forth by the defence as a

possible alternate hypothesis.

14] The learned Sessions Judge has convicted the accused

under section 308 of the Indian Penal Code. Such a conviction

could have been recorded first by recording a finding that were

injured Prakash went to die due to the assault the offence

committed would be under section 304 of the Indian Penal Code.

The offence would then be either under section 304 Part-I or

under section 304 Part-II depending whether the act which caused

the death was done with the intention for causing death or was

done without the intention of causing death but with the

knowledge that death is likely to be caused. The pivotal issue in

the factual matrix of the appeal, is whether the accused intended

to cause death or the accused can be attributed with the

knowledge that the knife assault would cause death or such injury

as would cause death.

15] P.W.1 injured Prakash was examined by Dr. Mohd.

Aslam Jamal who is examined as P.W.10. The Doctor has proved

the injury certificate Exh.69. P.W.10 has testified that the injured

Prakash suffered four injuries which are described thus:

1. Incise wound on abdomen inerioraly lower half left side. Size 1 inch x .2cm by subcutaneous deep.

2. Incised wound on abdomen interior 3 inch x ½ inch by muscle deep.

3. Incised wound 1 inch x ¼ inch by peritoram/cavity deep.

4. On abdomen interioraly lower half right side ½ inch x .5 cm by subcutaneous deep.

16] The Doctor states that injury three can be sufficient to

cause death if it affects internal organs. In the cross-examination

P.W.10 admits that injury one and injury four is only

subcutaneous deep (cut to the skin is the deposition). Injury two,

which is a incised wound is muscle deep. In so far as injury three

is concerned, which according to P.W.10 can be sufficient to cause

death if it effects internal organs, in the cross-examination P.W.10

states thus:

The injury no.3 was found deep up to cavity. It is true that in absence of any internal damage and complication all the injuries are simple injuries. Therefore, I referred healing time of injuries as 8 days. After the examination I have no any occasion to see the patient again. I do not refer or seen the bed head ticket of the patient after admission. The patient was admitted only to avoid complication. I do not know about internal complication or damage to the internal part in the patient.

17] The learned Sessions Judge has recorded a finding,

and which finding is unexceptionable, that intention to cause

death is not proved. However, the learned Sessions Judge further

holds that although the intention to cause death is not proved, the

accused can be attributed with the knowledge that the inflicted

injury is likely cause death. It is trite law, that neither the nature

nor the extent of injuries is conclusive or decisive. Intention or

knowledge is to be gathered from the cumulative effect of several

circumstances. The motive, the genesis of the altercation, the

conduct of the accused, whether the incident occurred on the spur

of the moment or was premeditated, the part of the body of which

the injury is inflicted, the nature of the weapon and the force

applied, the nature and extent of injuries are all circumstances

which must be cumulatively considered to determine whether the

accused had the requisite intention or knowledge to attract section

308 of the Indian Penal Code.

18] Concededly, the incident occurred due to some

altercation on the day of Rangapanchami. The accused were

attempting to smear colour on the face of Rahul (P.W.6). P.W.1

Prakash objected and was assaulted by the accused. No medical

evidence is produced on record to throw light on the treatment

received by injured P.W.1 after he was admitted in the hospital.

The only evidence on record is that of P.W.10 Dr. Mohd. Aslam

Jamal who admits that the injuries were simple injuries.

The attending circumstances further do not conclusively suggest

that the injuries were inflicted with the intention or knowledge

which ingredients are sine quo non for bringing home charge

under section 308 of IPC. It is trite law, that benefit of any doubt

which is reasonably discernible from the evidence must go in

favour of the accused. I am not persuaded to uphold the

conviction of the accused under section 308 of IPC and instead the

accused is convicted for offence punishable under section 324 of

IPC.

19] The incident occurred more than thirteen years ago

and the accused has already undergone more than thirteen

months of detention as under trial and convict. I do not deem it

appropriate to send the accused back to prison, at this stage.

The accused is as such sentenced to detention or imprisonment

already undergone.

20] The appeal is partly allowed in the above terms.

JUDGE NSN