Ramchandra S/O. Ramu Halami vs State Of Maharashtra Thr. P.S.O., ...
2022 Latest Caselaw 2815 Bom

                                     1                                       APEAL69.19.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


                     CRIMINAL APPEAL NO. 69 OF 2019


APPELLANT                   : Ramchandra S/o Ramu Halami
                              Aged about 25 years, Occu. Cultivator,
                              R/o Bramhani, Tah. Kurkheda,
                              Dist. Gadchiroli.

                                             VERSUS

RESPONDENT                  : State of Maharashtra,
                              through Police Station Officer,
                              Police Station, Purada, Tah. Kurkheda,
                              District Gadchiroli.

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          Shri D. A. Sonawane, Advocate appointed for the appellant.
          Shri M. K. Pathan, A. P. P. for the respondent/State.
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             CORAM : V. M. DESHPANDE and
                     AMIT B. BORKAR, JJ.

DATE : MARCH 23, 2022.

ORAL JUDGMENT (Per : V. M. Deshpande, J.)

1. Being aggrieved by the judgment and order of conviction

passed by the learned Additional Sessions Judge, Gadchiroli, dated

07.02.2018 in Sessions Case No. 90/2016, the appellant has filed the

present appeal before this Court. By the impugned judgment and

order of conviction, the appellant is convicted for the offences 2 APEAL69.19.odt

punishable under Sections 452, 354 and 307 of the Indian Penal

Code.

For the offence under Sections 452 and 354 of the Indian

Penal Code, the appellant is sentenced to suffer rigorous

imprisonment for Seven years and Five years, respectively, and to pay

a fine of Rs.1,000/- and in default to suffer further rigorous

imprisonment for one year, on each count ; and

For the offence under Section 307 of the Indian Penal Code,

the appellant is sentenced to suffer rigorous imprisonment for

Twenty years and to pay a fine of Rs.8,000/- and in default to suffer

further rigorous imprisonment for two years.

2. We have heard Shri D. A. Sonawane, learned counsel

appointed by the High Court Legal Services Sub Committee, Nagpur

for the appellant and Shri M. K. Pathan, learned Additional Public

Prosecutor for the respondent/State. With their able assistance, we

have also gone through the notes of evidence and the entire record

and proceedings.

3. It was the submission of Shri Sonawane, learned counsel

for the appellant that the appellant is falsely implicated in the crime.

3 APEAL69.19.odt

It was also his submission that the injuries suffered by Smt. Devkibai

(PW1) were caused by her husband and not by the appellant

inasmuch as it was his submission that there was a quarrel in

between Devkibai and her husband and in the said quarrel, she fell

on the ground and suffered injuries on stomach. Insofar as the

criticism of evidence of witness Gopal Sarate (PW2) is concerned, the

learned counsel for the appellant has submitted that Gopal (PW2)

did not receive any notice from police to act as a panch. He,

therefore, submitted that for the said reason the memorandum

statement and consequent recovery of knife at the behest of the

appellant is required to be discarded. The learned counsel also

criticized the evidence of Smt. Sunanda Halami (PW3) and

submitted that from the suggestions given to this witness, it is clear

that though this witness has denied those suggestions, the possibility

of quarrel between Devkibai (PW1) and her husband is not ruled out.

He, therefore, submitted that the appeal be allowed.

4. Per contra, Shri Pathan, learned Additional Public

Prosecutor for the State would submit that Devkibai (PW1) is the

injured and her evidence is free from omissions and contradictions 4 APEAL69.19.odt

and the learned Judge of the trial Court has rightly believed her

evidence. He also submitted that the recovery of weapon was made

at the instance of the appellant. He submitted that the injuries which

were caused to injured Devkibai (PW1) by the appellant in the

assault were very serious, if the evidence of the Medical Officers is

scrutinized. He, therefore, prayed for dismissal of the appeal.

5. On 18.08.2016, Dr. Nitesh Wankar (PW7) was attached

to Civil Hospital, Gadchiroli as a Medical Officer. He was discharging

his duties at casualty ward. On the said day, Devkibai Harami (PW1)

was brought to the hospital at 5.30 p.m. with stab injuries on her

person. He, therefore, immediately intimated the police by giving

an intimation (Exh.45). In pursuance to the said intimation, police

came to the hospital. They asked him as to whether the patient is fit

to give her statement, by giving request letter (Exh.46). As per the

evidence of Dr. Nitesh Wankar (PW7), he thereafter gave fitness

certificate. Subsequently, statement of injured Smt. Devkibai (PW1)

was recorded by the police in his presence. His evidence also shows

that on examination of the injured he found two stab injuries and she

was admitted in the casualty ward and was referred for further 5 APEAL69.19.odt

management and expert opinion. He issued Medico Legal

Certificate, which is at Exh.47. The statement of Smt. Devkibai

(PW1), which was recorded in presence of Dr. Nitesh Wankar (PW7),

is at Exh.8. The said document is exhibited as Devkibai (PW1)

identified her thumb impression. In her this previous statement, she

has specifically stated that since she refused to give her daughter in

marriage to the appellant, he tried to commit rape on her and when

she resisted, the appellant assaulted on her abdomen by giving two

blows. At the time of assault nobody was present with her inside the

house and therefore, due to her shouts, she was removed by the

nearby persons to the hospital.

6. Smt. Devkibai Harami (PW1), in her substantive

evidence did not deviate from her previous statement at all. Not only

that, she identified the weapon which was shown to her by the

learned Public Prosecutor, who was in-charge of the brief while her

evidence was recorded. She also identified her clothes which were

on her person at the time of the incident. The injury certificate

(Exh.47) shows that there were two stab blows on her abdomen.

6 APEAL69.19.odt

7. PW4 is Dr. Rajkumar Koreti, who was serving as a

Medical Officer at General Hospital, Gadchiroli on 18.08.2016.

Injured Devkibai (PW1) was admitted to the Female Ward as she had

sustained stab injuries on her stomach. His evidence would show

that Devkibai (PW1) was operated on that day by Dr. Madhuri

Kilnake (PW6). His evidence further shows that on 07.09.2016, he

examined her and found to be recovered and therefore, she was

discharged. The Discharge Card is at Exh.19. Perusal of said

Discharge Card (Exh.19) would show that from 18.08.2016 to

07.09.2016, Smt. Devkibai (PW1) was an indoor patient of

Government Hospital, Gadchiroli.

8. The prosecution has also examined Dr. Madhuri Kilnake

(PW6), who performed operation on injured Devkibai (PW1).

Evidence of Dr. Kilnake (PW6) would show that Devkibai (PW1) was

referred to the Government Hospital, Gadchiroli from Sub District

Hospital, Kurkheda. The referral letter is at Exh.40. As per the

evidence of Dr. Kilnake (PW6), on examination of injured Devkibai

(PW1), she found following injuries :

i] Stab injury over left hypo chondrium, size 3 x 1 cm with the depth penetrating peritonial cavity.

                          7                         APEAL69.19.odt


        ii]    Other stab injury was on abdomen left para
              umbilical region, size 5 x 3 cm with depth

penetrating peritonial cavity, small bowel protruding through it.

According to the evidence of Dr. Madhuri Kilnake (PW6), the injuries

were caused 6 to 8 hours before the examination and those were

caused by cutting object. Her examination shows that those injuries

were serious and could be fatal. Therefore, she advised for urgent

sonological examination of the patient as in the wisdom of the

Doctor, immediate surgery was required. Accordingly, sonography

was performed. Sonography report is at Exh.41. Evidence of Dr.

Kilnake (PW6) further shows that thereafter Devkibai (PW1) was

operated. In the course of surgery, it was found by the Doctor that

the patient had bleeding from lower end of spleen. The bleeding

could not be controlled and therefore, the spleen was required to be

removed. It was also observed by the Doctor that the patient had

haematoma over mesentery. Evidence of Dr. Kilnake (PW6) would

show that only after suture the bleeding was controlled. Perforation

was found in anto-lateral wall of stomach of 2 x 2 cm size which was

also sutured. There was another perforation in the posterior wall of

stomach about 1 x 1 cm size which was also sutured. There were 8 APEAL69.19.odt

also two perforations in jejunum about 15 cm from deduno jenunum

and another was of 1 x 1 cm. They were also sutured. Dr. Kilnake

(PW6)'s evidence shows that after necessary treatment, the surgery

was over. She proved the case history including the surgery and it is

at Exh.42.

9. The appellant was arrested on 22.08.2016. His arrest

form is at Exh.27. Needless to mention, PSO Ashok Pal (PW5) has

conducted investigation of the crime in question. The appellant

when was in Police Custody Remand, in the presence of Gopal Sarate

(PW2), a panch witness, made his disclosure statement. The

admissible portion of his statement is at Exh.10, whereby he agreed

to show the place where he has concealed the weapon of assault.

Thereafter he led the police party along with panchas to a place at

village Bamni. He took out a weapon, which was concealed beneath

a tree in a zudpi jungle. It was seized from the said spot under

recovery panchanama (Exh.11) having blood stains.

10. The prosecution has also examined Sunanda Halami

(PW3) to whom immediate disclosure was made by Devikabai (PW1) 9 APEAL69.19.odt

that the appellant has assaulted upon her. She was given water and

thereafter Devkibai (PW2) fell unconscious.

11. Evidence of Devkibai (PW1), the injured, has remained

unshaken. Nothing could be brought on record to disbelieve her

version about the assault made on her by the appellant. There is

nothing on record to accept the suggestions given to her during her

cross-examination that the injuries caused to her could be suffered

due to fall on ground.

12. On the contrary, evidence of operating surgeon Dr.

Madhuri Kilnake (PW6) shows that injured Devkibai (PW1) had

suffered very grave injuries. The extent of its graveness was seen by

the Doctor only during the course of operation. The Investigating

Officer (PW5) forwarded the weapon to Dr. Nilesh Wankar (PW7)

under query report (Exh.30), which was promptly replied by him

that the injuries found on the person of the injured could be caused

by the said weapon. The weapon which was sent was having blade

13 cm long with 10 cm grip. The width of the blade at the tip was

1.5 cm while it was 2 cm at the base. Thus, it is crystal clear that the

weapon was a dangerous weapon.

10 APEAL69.19.odt

13. No doubt true that the Chemical Analyser's report is not

available on record. However, merely because the C.A. report is not

on record, the prosecution case cannot be doubted. The C.A. report

is always in the nature of corroborative piece of evidence. In the

present case, the substantive evidence is the evidence of injured

herself, which is found to be trustworthy by this Court. Her evidence

is also found to be corroborated by three Doctors.

14. In our view, the learned Judge of the trial Court has

correctly appreciated the prosecution case and has rightly reached to

the conclusion warranting no interference from this Court.

Resultantly, we pass the following order :

ORDER

1. The Criminal Appeal is dismissed.

2. The judgment and order dated 07.02.2018 passed by the

learned Additional Sessions Judge, Gadchiroli in

Sessions Case No. 90/2016, convicting the appellant for

the offence punishable under Sections 452, 354 and 307

of the Indian Penal Code, is hereby maintained.

11 APEAL69.19.odt

3. Shri D.A. Sonawane, learned counsel appointed for the

appellant is entitled to receive his professional fees

which is quantified at Rs.5,000/-, from the High Court

Legal Services Sub Committee, Nagpur.

                                    (AMIT B. BORKAR, J.)            (V.M.DESHPANDE, J.)
                      Diwale




Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:25.03.2022
17:40