Bombay High Court
Suresh Mahadeorao Deshmukh vs State Of Mah. Thr. Pso Ps Murtizapur ... on 28 February, 2025
2025:BHC-NAG:2055
Judgment
365 apeal217.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.217 OF 2023
Suresh Mahadeorao Deshmukh,
aged 56 years, occupation : labour,
r/o Kokanwadi, Murtizapur,
district Akola. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through PSO PS Murtizapur,
district Akola. ..... Respondent.
Shri Amit Kukday, Counsel Appointed for the Appellant.
Shri M.J.Khan, Addition Public Prosecutor for Respondent
No.1/State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 06/02/2025
PRONOUNCED ON : 28/02/2025
JUDGMENT
1. By this appeal, the appellant (accused) has
challenged judgment and order dated 17.10.2022 passed
by learned Additional Sessions Judge, Akola (learned
Judge of the trial court) in Sessions Trial No.309/2019.
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2. By the said judgment and order impugned, the
accused is convicted for offence punishable under Section
307 of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for six years and to pay fine
Rs.1000/-, in default, to undergo further rigorous
imprisonment for six months.
3. Brief facts of the prosecution case are as under:
Dipak Ghashiprasad Ahirwal (the informant), is
brother of Ram Ahirwal (the injured). On 30.8.2019, at
about 5:00 pm, the injured had proceeded in the village.
Whereas the informant was present at "Ahilya Bai
Complex, Murtizapur at around 7:00 pm. He heard the
noise of quarrel in front of "Sarika Wine Bar" and
witnessed that his brother was being assaulted by the
accused. He had intervened in the quarrel along with
Manoj Shrivastav and Rajesh Fulwale. His brother had
.....3/-
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received bleeding injury over his neck. The injured was
taken to the hospital. During enquiry with the injured, it
revealed that the accused was demanding money from
him for consumption of liquor and on that count, on
denial by the injured, the accused inflicted blows of sharp
edged weapon. On the basis of the said report, the police
registered the crime. During investigation, the
Investigating Officer has recorded the statement of the
injured and other relevant witnesses, drawn spot
panchanama, collected blood stained soil from the spot,
seized clothes of the injured as well as the accused. The
accused made memorandum statement and on his
instance, weapon of the offence was recovered. After
completion of the investigation, chargesheet was filed
against the accused.
4. Learned Judge of the trial court has framed the
charge vide Exh.4. In support of the charge, the
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prosecution has examined in all nine witnesses, as
follows:
PW Names of Witnesses Exh.
Nos. Nos.
4 Rajesh Boyatkar, Pancha on various pan- 31
chanamas
9 Dattatraya Avahale, Investigating Officer 58
5. Besides the oral evidence, the prosecution placed
reliance on CA Report Exh.23, spot panchanama Exh.32,
seizure memo Exh.33, seizure of the clothes of the injured
Exh.34, memorandum statement by the accused Exh.35,
discovery panchanama Exh.36, seizure memo Exh.37,
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seizure of the clothes of the accused Exh.38, medical
certificate Exh.43, requisition memo Exh.44, query report
Exh.45, opinion Exh.46, FIR Exh.48, referral letter Exh.50,
medical certificate Exh.51, query report Exh.53, and
opinion Exh.54.
6. On the basis of the oral as well as the documentary
evidence, learned Judge of the trial court held the accused
guilty and convicted and sentenced him as the aforesaid.
Hence, the appeal.
7. Heard learned counsel Shri Amit Kukday appointed
for the accused and learned Additional Public Prosecutor
Shri M.J.Khan for the State.
8. Learned counsel for the accused submitted that that
the evidence of the prosecution adduced is not sufficient to
hold the accused guilty. Informant PW1 Dipak Ahirwal and
eyewitness PW3 Vijay Rahate are the interested witnesses.
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365 apeal217.23
Evidence of PW7 Dr.Mitali Mankar shows that the injured
was under the influence of liquor when he was examined.
It was the injured on whose instance the alleged incident
has taken place. The medical evidence is not sufficient to
show that injuries are sufficient to cause death if he was
not treated immediately. Alternatively, he submitted that
at the most, the case would cover under Section 324 of the
IPC and, therefore, the sentence is to be reduced.
9. Per contra, learned Additional Public Prosecutor for
the State submitted that merely because informant PW1
Dipak Ahirwal is brother of the injured, that by itself
cannot be treated as interested witness. Eyewitness PW3
Vijay Rahate is the independent witness. The oral evidence
is corroborated by the medical evidence and the discovery
of the place where the weapon was kept is at the instance
of the accused. The CA Report shows that the blood stains
were not only on the clothes of the injured but also on the
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clothes of the accused. Blood stains found on the clothes
of the accused were of Blood Group "AB" i.e. of the injured
for which no explanation is put forth. For all above these
grounds, the appeal is devoid of merits and liable to be
dismissed.
10. Before entering into the merits of the case, it is
necessary to mention that while the accused was
undergoing the sentence, the remission was given to him
on the occasion of "Amrut Mahotsav of Independence" and
released from the jail.
11. Coming to the merits of the case, the prosecution
has examined informant PW1 Dipak Ahirwal and
eyewitness PW3 Vijay Rahate.
12. As per the evidence of PW1 Dipak, the alleged
incident occurred on 30.8.2019 at 7:00 pm. On hearing
noise, he rushed to the spot of the incident and witnessed
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the accused inflicting the blows on his brother. His brother
has sustained bleeding injuries on his neck as well as on his
chest i.e. vital part of the body. He separated the accused
and the injured with the help of Manoj Shrivastava and
Rajesh Fulwale.
The evidence of the said witness further states that
the accused met the injured at the Daryapur Road and was
demanding the money and also abused the injured. On
denial by the injured to pay the money, the accused
removed a small cutter from his pocket and inflicted blows
on the left portion of his neck and also on his chest and
nose due to which he sustained injuries. As he has raised
alarm, Vijay Rahate, and Manjor Shrivastava came there
and took the injured in the hospital.
13. Eyewitness PW3 Vijay Rahate, corroborated the
evidence of informant PW1 Dipak and the injured on
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material particular that the injured was assaulted by the
accused. His evidence further shows that when he was
proceeding to his house, he heard the noise of quarrel and
witnessed that the accused was demanding money from
the injured and on refusal to pay the amount, accused gave
blow of cutter on the neck and chest of the injured. They
intervened in the quarrel and took the injured in the
hospital.
14. All three witnesses informant PW1 Dipak, injured
PW2 Ram, and eyewitness PW3 Vijay are cross examined.
15. Informant PW1 Dipak denied that his brother is
addicted to drink liquor and used to beat other people. He
also denied that upon enquiring with his brother, he came
to know that the accused has assaulted him.
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16. During the cross examination, injured PW2 Ram has
admitted that occasionally he takes liquor, but he denied
that he takes liquor in shop.
Except this cross examination, the entire cross
examination is in the denial form.
17. During the cross examination of eyewitness PW3
Vijay, an attempt was made to show that he is interested
witness. The cross examination of the said witness shows
that he had good relation with the accused and he
considers him as his brother. He admitted that there were
various customers near the outlet.
18. All the above three witnesses identified the clothes
of the injured and the accused and Article-1 cutter.
19. PW4 Rajesh Boyatkar, has acted as a pancha on spot
panchanama, seizure memo Exh.33, seizure of the clothes
of the inured Exh.34, memorandum statement of the
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accused Exh.35, discovery panchanama Exh.36, seizure of
the cutter Exh.37, and seizure of the clothes of the accused
Exh.38. He narrated about the said panchanamas during
his evidence. He specifically stated that the accused made
memorandum statement in his presence that he will
produce the cutter concealed in his house and accordingly
led them to his house and shown the place where he has
kept the cutter wrapping in the paper below earthen pot in
the courtyard of his house. During the cross examination,
he admitted that no written instructions were given to
them to act as a pancha. He further admitted that after
spot panchanama, they again went to the police station.
The accused was removed out of the lockup. He stated
that he is not recollecting whether the accused was
handcuffed at the time of taking him for recovery
panchanama.
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20. Recital of the spot panchanama shows that from the
alleged spot of the incident the police collected simple as
well as blood stained soil. The clothes of the injured were
seized having blood stains vide seizure memo Exh.34.
Exh.35 shows that the accused made a voluntary statement
as to the discovery of place where he kept the
incriminating article weapon and the said blood stained
weapon was seized at his instance. Though pancha witness
is cross examined, it was nowhere suggested that the
statement was not voluntary. On the contrary, it came in
the cross examination that the accused was brought out of
the lockup at the time of recording memorandum
statement.
21. As per the evidence of PW5 Dr.Pankajkumar
Patalbansi, who initially examined the injured, shows that
he received requisition from police Exh.42. On
examination, he found incised wound 5x0.5.0.5 cms over
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palmer which could be used by sharp object and shoulder
pain, swelling tenderness, and range of movement which
could be caused by blunt object. He issued certificate
Exh.43 and also issued requisition memos. He has also
obtained blood samples of the accused. His evidence
further shows that on 2.9.2019 the police has produced
weapon and injury report through requisition Exh.45. It
was a cutter having sharp edge by one side. He opined
that injury No.1 could be caused by the said weapon.
During his cross examination he admitted that the said
injury could be caused by any sharp edged weapon and
injury No.2 is also possible by fall on rough surface. He
has not carried out the alcohol examination of the accused.
22. PW7 Dr.Mitali Mankar, is another medical officer
who examined the injured and found that CLW wound of
7x2x4 cms deep wound on left lateral side of neck and
CLW wound of 5x2x3 cms deep on lateral side of nose on
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left side. She has referred the said patient for surgical
opinion to higher centre. The injuries caused to the
injured was life threatening. The referal letter is at Exh.50.
On the next date, she received letter vide Exh.52 for
issuing medical certificate. She has also received a letter
from police station issuing opinion. She examined the
weapon and opined that injuries sustained to the injured
could be possible by the cutter. Her cross examination
shows that history of assault was given. She had
mentioned that the patient was under the influence of
liquor. She further stated that she is unable to tell whether
the injuries were self inflicted or otherwise. she further
explained that the injuries were not self inflicted. She
admitted that the above injuries could be possible by any
sharp object like glass. She further admitted that she has
not mentioned in the injury report that there was danger to
the life of the said injured.
.....15/-
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23. PW6 Ashish Shinde, is Police Officer who recorded
the FIR, PW8 Tukaram Dhoke and PW9 Dattatraya Avahale
are Investigation Officers who narrated about the
investigation carried out by them. As far as their cross
examination is concerned, nothing fruitful is brought on
record. The incriminating articles were forwarded for its
chemical analysis along with referral letter Exh.61. The CA
Report shows full pant and shirt of the accused had
considerable number of blood stains, Exh.3 cutter and
Exh.6 blood stained soil are stained with the blood. The
blood group found on clothes of the accused and shirt of
the injured are stained with Blood Group "AB". As far as
the said Blood Group is concerned, no explanation is put
forth by the accused.
24. As far as submission on behalf of the accused is
concerned, the same is to the extent that informant PW1
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Dipak and eyewitness PW3 Vijay are the interested
witnesses.
25. It is well settled that mere relationship is not
sufficient to term the witnesses as "interested witnesses".
26. As far as involvement of the accused in the crime is
concerned, it is established by the prosecution through the
evidence of informant PW1 Dipak, who witnessed the
alleged incident. Eyewitness PW3 Vijay, was also present
at the spot of the incident. Their presence is not at all
denied at the spot of the incident. The evidence of injured
PW2 Ram is at higher pedestal. Though they are cross
examined at length, neither their presence nor the
involvement of the accused in the alleged incident is
denied. To justify the conviction under Section 307 of the
Indian Penal Code, it is not essential that bodily injury
capable of causing death should have been inflicted. It is
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sufficient to show a conviction under the said Section 307
if there is present an intent coupled with some overt act in
execution thereof. The intention of the accused can be
gathered from the circumstance that he was having sharp
edged weapon along with him and injuries were caused on
vital part of the body.
27. Thus, the act was intended.
28. There are different stages in crime; (1) the intention
to commit it, (2) preparation to commit it, and (3) attempt
to commit it.
As far as intention is concerned, the same can be
gathered from the fact that the injuries are caused on vital
part of the body.
The preparation to commit the crime can be
gathered from the circumstance that the accused was
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carrying weapon in his pocket and attempt was made by
causing the injuries.
29. Thus, the evidence on record sufficiently establishes
involvement of the accused in the alleged offence.
30. As far as defence of the accused is concerned, as to
the false implication, the same is not substantiated by any
material or the cross examination of the witnesses.
31. Thus, the prosecution succeeded in establishing the
guilt of the accused. Learned Judge of the trial court had
considered the entire evidence and rightly convicted the
accused. As I do not find any merits in the appeal,
following order is passed:
ORDER
(1) The Criminal Appeal is dismissed.
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(2) The accused, who was undergoing the sentence, is
already released from the jail by giving remission of the
Scheme of the Government on the occasion of "Amrut
Mahotsav of Independence".
(3) Fees of learned counsel Shri Amit Kukday appointed for
the accused be quantified and the same be paid to him as
per rules.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 28/02/2025 17:34:09
