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2013 DIGILAW 642 (BOM)

Dnyaneshwar v. State of Maharashtra

2013-03-14

SHRIHARI P.DAVARE

body2013
Judgment : 1] Challenge in this appeal is to the conviction and sentence imposed upon the appellant herein, by way of judgment and order, dated 29.12.2005, rendered by the learned 1st Ad hoc Additional Sessions Judge, Beed, in Sessions Case No. 45 of 2005. 2] It appears that the appellant herein was charged for the offence punishable under Section 307 independently and also r/w Section 34 of the Indian Penal Code along with the co-accused and faced the trial in the afore said Sessions Case and the said co-accused came to be acquitted therefor, but the appellant herein was convicted for the offence punishable under Section 307 of the Indian Penal Code and was sentenced to undergo R.I. for five years and to pay fine of Rs.1,000/-, in default to under R.I. for six months. Being aggrieved thereby, the appellant (original accused no.1) has preferred the present appeal assailing the said conviction and sentence and prayed for quashment thereof. 3] The factual matrix of the present case is as follows:- The complainant, namely Ranjit Shankarrao Patil i.e. PW8 was running a club at Gevrai at the relevant time. Appellant Dnyaneshwar was also conducting a club at the said place. It is alleged that the appellant was under the impression that the complainant's club was doing better business than his club. Hence, on 7.3.2004, the appellant along with co-accused Raju Mote and the absconding accused Sheru Mote @ Sharad Mote approached the complainant Ranjit Patil at about 6.00 p.m. when he was in front of Saheli Emporium at Gevrai along with his friends, namely Khalil and Ranjeet Honde. It is also alleged that appellant Dnyaneshwar was armed with a Rampuri knife and Sheru Mote was armed with a sword; whereas Raju Mote was having an iron bar in his hand. It is further alleged that the appellant hurled abuses towards the complainant Ranjit Patil and gave a blow of knife on his ribcage on the left hand side and also gave a blow below left arm pit. It is also alleged that the first blow caused grievous injury and after the aforesaid assault, the complainant Ranjit fell down. Thereafter the said assailants fled away towards the direction of the office of Panchayat Samiti. It is also alleged that the first blow caused grievous injury and after the aforesaid assault, the complainant Ranjit fell down. Thereafter the said assailants fled away towards the direction of the office of Panchayat Samiti. The friends of the complainant, namely Ranjeet Honde and Khalil picked up complainant Ranjit Patil and took him to the Government Hospital, Gevrai, where he was given first aid and then he was sent to the Civil Hospital, Beed, where he was admitted for some time during which time his complaint was recorded. Thereafter he was shifted to Dhoot Hospital at Aurangabad, for further medical treatment. 4] According to the prosecution, on the basis of the complaint of the complainant Ranjit Patil recorded at the Civil Hospital, Beed, a crime was registered against the appellant and other co-accused under Sections 307 r/w 34 of the Indian Penal Code and also under Section 135 of the Bombay Police Act under C.R. No. 26 of 2004. Pursuant to the registration of the said crime, investigation was carried out, during which spot panchanama (Exh.44) was prepared in presence of panch witness PW1 Abasaheb Mote and PW2 Balu Kanse. Moreover, panchanama of the seizure of clothes of the appellant (Exh. 48C) was prepared in presence of panch witness PW4 Ashok Vedpathak and shirt of the appellant was seized thereunder. So also, the seizure panchanama of the seizure of the clothes of the complainant and other eye witnesses (Exh. 51C) was prepared in presence of PW5 Ranjeet Honde. 5] Besides, while in custody, the appellant Dnyaneshwar made voluntary statement to show the place where the incriminating weapon i.e. knife was concealed, and accordingly, memorandum panchanama (Exh.58-A) was drawn, and thereafter the appellant led the panchas and the police personnel to the road and showed the place where the knife was concealed and a knife was recovered which was seized under recovery panchanama (Exh.58C) in presence of panchas PW3 Narayan Honde and PW7 Yuvraj Kokare. 6] After completion of investigation, charge sheet was filed against the appellant and co-accused before the learned Judicial Magistrate, First Class, Gevrai. However, since the charges levelled against the appellant and co-accused were exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Gevrai committed the said case to the Court of Sessions, Beed, by order, dated 30.4.2005. However, since the charges levelled against the appellant and co-accused were exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Gevrai committed the said case to the Court of Sessions, Beed, by order, dated 30.4.2005. However, since the co-accused Sheru @ Sharad Mote was absconding, his case was not committed to the Court of Sessions, Beed. 7] Accordingly, the learned 1st Ad hoc Additional Sessions Judge, Beed framed the charge against the appellant and the co-accused on 9.9.2005 under Sections 307 r/w 34 of the Indian Penal Code, and alternatively framed the charge against the appellant herein under Section 307 of the Indian Penal Code, and alternatively framed the charge against the co-accused under Section 307 of the Indian Penal Code. 8] The appellant and co-accused pleaded not guilty to the said charges levelled against them and claimed to be tried. Hence, to substantiate the charges levelled against the accused persons, the prosecution examined as many as 8 witnesses, as mentioned below. PW1 Abasaheb Vinayak Mote, panch to the spot panchanama – turned hostile. PW2 Balu Rustumrao Kanse, panch to the spot panchanama. PW3 Narayan Govindrao Honde, panch to seizure panchanama of knife – turned hostile. PW4 Ashok Bhalchandra Vedpathak, panch to the seizure panchanama of clothes of the appellant. PW5 Ranjeet Kachru Honde, panch to the seizure panchanama of clothes of the complainant and also eye witnesses. PW6 Khalil Hussain Narulla Hussain Masheque, another eye witness. PW7 Yuvraj Maroti Kokare, panch to memorandum panchanama and recovery panchanama of knife. PW8 Ranjit Shankarrao Patil, complainant. 9] The defence of the appellant is that the accused no.2 Raju Mote before the court is not the same Raju Mote who was involved in the occurrence of the incident and the appellant herein had not given any blows of knife to the complainant Ranjeet Patil, and as such none of the accused was responsible for causing any injury to the complainant and on mere suspicion they have been implicated in the present case falsely, and hence, they claimed to be innocent. However, the appellant neither examined himself on oath nor examined any defence witness to support the said defence. Accordingly, after considering the oral and documentary evidence adduced/produced by the prosecution, the learned Trial Judge acquitted the co-accused, namely Raju Mote; whereas convicted and sentenced the appellant herein, as mentioned herein above. However, the appellant neither examined himself on oath nor examined any defence witness to support the said defence. Accordingly, after considering the oral and documentary evidence adduced/produced by the prosecution, the learned Trial Judge acquitted the co-accused, namely Raju Mote; whereas convicted and sentenced the appellant herein, as mentioned herein above. Hence, present appeal is directed against the said conviction and sentence imposed upon the appellant. 10] I have perused the impugned judgment and order, oral and documentary evidence adduced/produced by the prosecution on record, record and proceedings and heard the submissions advanced by the learned counsel for the parties, and coming to the evidence of the complainant PW8 Ranjit Patil, wherein he stated that incident took place at Gevrai on 7.3.2004 in front of Maroti temple near Saheli Emporium at about 6.00 p.m. when he was sitting in front of Saheli Emporium. At this juncture, the appellant Dnyaneshwar, co-accused Sheru Mote and co-accused Raju Mote arrived there and abused him and they assaulted him with knife and ran towards the Panchayat Samiti office. He also stated that the knife blows caused him two injuries on his left side ribcage and thereby he fell down. His companions, namely PW6 Khalil Masheque and PW5 Ranjeet Honde and also Anil Pawar took him to the Government Hospital, Gevrai, where he was given medical treatment. Later on, he was taken to the Government Hospital, Beed, where also he was given some treatment. He also stated that police recorded his statement (Exh.68) at Government Hospital, Beed. Thereafter, after taking initial treatment at Government Hospital, Beed, he was shifted to Dhoot Hospital at Aurangabad and he was given medical treatment there also. He identified knife whereby blows were given to him as Article no.2. He also identified the accused in the court as the assailant. 11] However, during cross-examination, he categorically stated that at the time of incident, the absconding accused Sheru Mote had given him sword blow on his left side ribcage and said Sheru Mote also gave him sword blow under left arm pit. He also identified the accused in the court as the assailant. 11] However, during cross-examination, he categorically stated that at the time of incident, the absconding accused Sheru Mote had given him sword blow on his left side ribcage and said Sheru Mote also gave him sword blow under left arm pit. The injury certificate of the complainant discloses that injured complainant Ranjit sustained two injuries i.e. one incised stab wound on the left flank area of abdomen which was caused due to hard and sharp object and the said injury was grievous; and another injury was stab wound on the left axilla caused by hard and sharp object and said injury was simple injury. Thus, admittedly the complainant Ranjit had sustained only two injuries as mentioned herein above, and as stated by PW8 Ranjit himself in his cross-examination, both the said injuries were caused to him by absconding accused Sheru Mote i.e. first injury was caused by Sheru Mote by sword on his left side ribcage and second injury was caused by him by sword blow under left arm pit, which leads to the position that the absconding accused Sheru Mote was the author of both the said injuries sustained by the complainant, which implies that the appellant herein has not caused any injury to the complainant. 12] Besides, PW8 Ranjit Patil also stated in his cross-examination that there was some darkness at the time of the incident and the said incident occurred all of a sudden, and thereafter for a moment he could not realise as to what had happened. Moreover, he also stated that due to darkness he could not properly identify the assailants and the said incident was completed within no time, and due to that he could not realise as to who had given knife blow. He further admitted that he named appellant Dnyaneshwar in the complaint on the basis of the suspicion. He further asserted that merely on the basis of suspicion he gave name of appellant Dnyaneshwar in his complaint allegedly that he had Rampuri knife in his hand and he gave blow on left rib. He also reiterated that he lodged the complaint against the appellant Dnyaneshwar due to suspicion. The said statements made by the complainant PW8 Ranjit Patil and the admissions given by him are vital and self-explicit, which shatters the case of the prosecution. He also reiterated that he lodged the complaint against the appellant Dnyaneshwar due to suspicion. The said statements made by the complainant PW8 Ranjit Patil and the admissions given by him are vital and self-explicit, which shatters the case of the prosecution. PW8 Ranjit Patil has categorically admitted, asserted and reiterated that he gave the name of appellant Dnyaneshwar in the complaint merely on the basis of suspicion. Moreover, he also admitted that the incident took place all of a sudden and was completed within no time, and therefore, he could not realise as to who gave knife blow to him. On the top of it, he categorically admitted that there was darkness at the time of occurrence of incident, and therefore, he could not properly identify the assailants. In view of the said very statements and admissions of PW8 Ranjit Patil i.e. the complainant, the appellant is entitled for the benefit of doubt. 13] Besides, coming to the depositions of PW6 Khalil Hussain and PW5 Ranjeet Honde, alleged eye witnesses, it is seen that there are vital omissions and contradictions in their respective testimonies, which diminish the credibility of the said testimonies, and therefore, the said testimonies of alleged eye witnesses also come under doldrums, and hence, same cannot be of any avail to the prosecution case to connect the appellant with the alleged crime. Moreover, a knife was recovered/discovered at the instance of the appellant in presence of panch witness PW7 Yuvraj Kokare under memorandum panchanama and recovery panchanama (Exh. 58-A). However, it appears that the said knife was not sent to the Chemical Analyser for examination purpose and link of the said discovery of the knife at the instance of the appellant was not completed and was not taken to the logical conclusion to connect the appellant with the alleged guilt. So also, the clothes of the appellant as well as the complainant, seized under panchanama were also apparently not sent to the Chemical Analyser's office for examination purpose and the said evidence was also not taken to its logical conclusion. Besides, although the injury certificate was admitted by the learned advocate of the appellant, the prosecution has not examined the concerned doctor to prove and establish the gravity of the alleged injury sustained by the complainant. Besides, although the injury certificate was admitted by the learned advocate of the appellant, the prosecution has not examined the concerned doctor to prove and establish the gravity of the alleged injury sustained by the complainant. Moreover, the alleged weapon i.e. knife was not shown to the doctor, since he was not examined and the said injuries and weapon were not co-related with each other due to non-examination of the concerned doctor. So also, the investigating officer was also not examined by the prosecution for the reasons best known to it. Hence, there are deformities and shortcomings in prosecution case, and therefore, appellant is entitled for benefit of doubt. 14] Accordingly, having the comprehensive view of the matter and considering the discrepancies, infirmities and lacunae in the prosecution case, as discussed herein above, I am of the view that the appellant deserves the benefit of doubt, and hence, he is required to be acquitted for the charges levelled against him by quashing and setting aside the conviction and sentence imposed upon him, by allowing the present appeal. 15] In the result, present appeal is allowed and the conviction and sentence imposed upon the appellant (original accused no.1) under Section 307 of the Indian Penal Code, by impugned judgment and order, dated 29.12.2005, rendered by the learned 1st Ad hoc Additional Sessions Judge, Beed, in Sessions Case No. 45 of 2005 stands quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. The appellant is on bail and his bail bond stands cancelled. Fine amount, if deposited by the appellant, be refunded to him.