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2017 DIGILAW 1266 (BOM)

Kishor S/o Parasram Kosre v. State of Maharashtra

2017-07-04

SWAPNA JOSHI

body2017
JUDGMENT : SWAPNA JOSHI, J. 1. This Appeal is preferred against the judgment and order dated 17th December, 2003 passed by the learned Additional Sessions Judge, Chandrapur in Sessions Case No. 54/1997 thereby convicting the appellant under section 307 of the Indian Penal Code and sentencing him to suffer R.I. for a period of three years and to pay a fine of Rs. 2,500/- in default, to suffer R.I. for further period of one month. The learned trial Judge further directed that if the fine amount is paid, out of the same Rs. 500/- be paid as compensation to each of the injured persons. 2. The prosecution case in nutshell is that, the appellant was a carpenter by profession. As per the orders placed by Shantabai (PW-4), the mother of the complainant-Sunil Kundawar (PW-3), the appellant had prepared some furniture. Just prior to the incident, Shantabai (PW-4) placed another order with the appellant for preparing a zoola (swing) and a chaurang (square stool). It is the case of the prosecution that Shantabai advanced some amount for the preparation of the said furniture. However, the appellant did not comply with the said order. As a result, differences cropped up between Shantabai and appellant. The differences flared up to the extent that Shantabai removed the bicycle from the house of the appellant and retained the same by keeping it in her house. On the date of incident, i.e. 12.01.1997 at about 5.00 p.m. Shantabai (PW-4) and her sons Vitthal (PW-5) and Sunil (PW-3) were present at their residential house. When Shantabai was standing near the door of her house; Sunil (PW-3) was ironing the clothes in the house and Vitthal (another son) was inside the house, the appellant armed with Wasla (sharp edged axe used by the carpenter) rushed in the premises of the house of Shantabai and suddenly assaulted Shantabai by giving blows of Wasla on her left cheek and right side of chest. Due to the said act, Shantabai sustained bleeding injury and she shouted for help. On hearing her shouts, Sunil (PW-3) and Vitthal (PW-5) who were present in the house, rushed to that place. Vitthal reached first in point of time and then Sunil. As PW-5 tried to rescue Shantabai from the assault perpetrated upon her by the appellant, the appellant immediately turned to PW-5 and injured him by giving blows of the axe on his abdomen. Vitthal reached first in point of time and then Sunil. As PW-5 tried to rescue Shantabai from the assault perpetrated upon her by the appellant, the appellant immediately turned to PW-5 and injured him by giving blows of the axe on his abdomen. Sunil also rushed to that place to help his mother. However, the appellant also assaulted him by giving blows of axe on his right shoulder. After assaulting all of them, the appellant left that place. Few persons gathered at the place of the incident and they took all of them to Primary Health Centre, Ballarshah. All of them were admitted in the hospital. The police recorded the complaint of PW-3Sunil on the basis of which they registered the offence punishable u/ss. 326 and 307 of the IPC. Further investigation was carried out by the Police. Chargesheet was filed in the Court of learned trial Judge. Charge was framed by the learned Addl. Sessions Judge, as stated above. 3. I have heard Shri Mahesh Mourya, learned counsel for the appellant as also Shri V.P. Maldhure, learned A.P.P. for the respondentState. The learned counsel for the appellant vehemently argued that the learned trial Judge has failed to consider the material discrepancies in the testimony of the injured witnesses and has wrongly come to the conclusion that the appellant was the perpetrator of the crime. According to the learned counsel for the appellant, the judgment and order passed by the learned trial Judge is illegal and perverse and as such, liable to be set aside. 4. Per contra, learned A.P.P. contended that the trial Judge has considered the entire evidence on record in its right perspective and has rightly convicted the appellant for the offence punishable u/s 307 IPC. Learned APP submitted that the testimonies of the eye witnesses, who were injured, are consistent, cogent and trustworthy and, as such, the learned trial Judge has rightly come to the conclusion that the appellant is guilty for the offence with which he is charged. 5. In order to consider the rival contentions of the respective parties, it is necessary to go through the evidence on record minutely. The prosecution has heavily placed reliance upon the testimonies of the injured witnesses, namely, Sunil (PW-3), Shantabai (PW-4) and Vitthal (PW-5). 5. In order to consider the rival contentions of the respective parties, it is necessary to go through the evidence on record minutely. The prosecution has heavily placed reliance upon the testimonies of the injured witnesses, namely, Sunil (PW-3), Shantabai (PW-4) and Vitthal (PW-5). It is the specific case of the prosecution that the appellant entered inside the house of the injured witnesses and firstly attacked PW-4 Shantabai, then PW-5 Vithal and lastly PW-3 Sunil, as PW-5 and PW-3 tried to rescue their mother-Shantabai, from the assault of the appellant. 6. So far as the testimony of PW-4Shantabai is concerned, she has deposed in a very natural manner. PW-4 stated that she had paid Rs. 2000/- to the appellant for preparing one Zoola and one chaurang. The appellant returned an amount of Rs. 1,000/- to her and owed the remaining amount which he did not return inspite of demand on umpteen times. The appellant said to her that he would not return the remaining amount and she is free to do whatever she could do in the matter. Therefore, PW-4 took the bicycle of the appellant and kept it in her house. Furious at the gesture of Shantabai, the appellant went to his house and brought an axe (Wasla) with him and entered the house of the complainant. At the relevant time PW-3 Sunil and PW-5 Vitthal were present in the house. Sunil (PW-3) was ironing the clothes, whereas Shantabai was standing at the door of her house and Vitthal (PW-5) was changing his clothes for going out for a stroll. The appellant gave the blows of axe on her left cheek and upper right chest. The appellant assaulted Vitthal on his abdomen, who rushed to rescue her. Sunil (PW-3) also came there running for help. The appellant also assaulted by giving blows of axe on his right shoulder. Thereafter the appellant left the spot. Some people gathered at the place of the incident and they took all three of them to Primary Health Centre, Ballarshah. PW-4 was medically examined at PHC and then was referred to Chandrapur Hospital. Shantabai stated that she was hospitalized for a few days at Chandrapur hospital. PW-4 identified the weapon before the Court. It is noticed that the testimony of PW-4 Shantabai is not shaken in the cross-examination. 7. PW-4 was medically examined at PHC and then was referred to Chandrapur Hospital. Shantabai stated that she was hospitalized for a few days at Chandrapur hospital. PW-4 identified the weapon before the Court. It is noticed that the testimony of PW-4 Shantabai is not shaken in the cross-examination. 7. As far as the testimony of PW-5 Vitthal is concerned, according to him, at about 5.00 p.m. the appellant entered their house. It appears from his testimony that on hearing the shouts of his mother, he came in the verandah of the house where the alleged incident had taken place. He saw his mother in an injured condition in the courtyard of his house. He caught hold of his mother and tried to help her, the appellant assaulted him by means of an axe on auxillary area of his body, due to which he sustained injuries. Thereafter his brother-Sunil arrived there. The appellant assaulted him too, on his shoulder. PW-5 Vitthal, then, ran away towards the godown and fell down at that place. Thereafter, he came to the road and by an auto-rickshaw proceeded to the hospital. PW-5 was treated firstly at PHC Ballarshah and thereafter was referred to Chandrapur Hospital. PW-5 specifically stated that one person by name Hafizkhan was sitting near the spot where he had fallen down near the godown. It is worthy to note that said Hafizkhan (DW-1) was examined by the appellant as a defence witness. The testimony of PW-5 has not been shattered in the cross-examination and it corroborates with the testimony of PW-3 on all material aspects. 8. The prosecution examined the third injured witness PW-3 Sunil. According to him, at about 5.00 pm in the evening, he had returned from his work and was ironing clothes. He had noticed one bicycle in front of his house in the courtyard. On making enquiry with his mother, she did not tell him anything about it. After some time, the appellant came to his house holding an axe used by the carpenter for cutting wood. His mother-Shantabai was sitting in the verandah of the house whereas his brother was inside the house. According to PW-3, the appellant inflicted blows of axe on his mother on her cheek and chest. His mother raised shouts. On this, his brother came out of the house. The appellant inflicted axe blow on the abdomen of his brother. His mother-Shantabai was sitting in the verandah of the house whereas his brother was inside the house. According to PW-3, the appellant inflicted blows of axe on his mother on her cheek and chest. His mother raised shouts. On this, his brother came out of the house. The appellant inflicted axe blow on the abdomen of his brother. The appellant tried to give a blow on the head of PW-3 and since he bent down, he received the blow on his shoulder. He received injury to his shoulder due to the said blow. According to PW-3, his mother became unconscious. His brother also sustained injury due to the blow of axe, however, he ran away. So also the accused went away. Thereafter he took his mother to the hospital in an auto-rickshaw. She was admitted in the hospital. PW-3 was also admitted in the hospital. He narrated the incident to the police. The police recorded his compliant (Exh.23). Significantly, the contents in the complaint are in consonance with the evidence of PW-3 before the Court. No material discrepancies are noticed in his testimony. 9. On careful scrutiny of the testimony of PW-3 Sunil, PW-4 Shantabai and PW-5 Vitthal, it is noticed that the testimonies of all the three witnesses corroborate with each other on material aspects. The testimonies of these witnesses are cogent and consistent and all three are found to be trustworthy witnesses. No doubt, there is discrepancy in the ocular testimony of PW-3 and PW-4 with the medical evidence of PW-6 with regard to the injury to the chest of PW-4. In this regard, it may be mentioned here that the ocular testimony of a witness has greater evidentiary value. In the instant case, the Medical Officer who was posted at a Primary Health Centre at Ballarshah which is a Taluqa place and has examined three injured persons from a family must not have noted the injuries caused to the mother of complainant i.e. PW-4 Shantabai carefully. However, PW-3complainant has also mentioned about the injury to the chest of Shantabai in his complaint (Exh.23) which is a contemporaneous document, so also the complaint is lodged promptly. Shantabai PW-4 also stated about the injury to the chest. There is no reason for PW-3 as well as PW-4 to speak lie about the said injury. However, PW-3complainant has also mentioned about the injury to the chest of Shantabai in his complaint (Exh.23) which is a contemporaneous document, so also the complaint is lodged promptly. Shantabai PW-4 also stated about the injury to the chest. There is no reason for PW-3 as well as PW-4 to speak lie about the said injury. On that basis, the evidence of PW-3 and PW-4 cannot be discarded which is otherwise consistent and cogent. 10. In the case of Sadhu Saran Singh vs. State of Uttar Pradesh and Others, (2016) 4 SCC 357 , it has been held by the Hon’ble Apex Court that when there is inconsistency between medical evidence and ocular evidence, primacy has to be given to ocular evidence, particularly in case of minor discrepancies. In the case of Umesh Singh vs. State of Bihar, (2013) 4 SCC 360 , it has been held that between medical and ocular evidence, ocular evidence must be preferred. Furthermore, in the case of State of Haryana vs. Bhagirath, (1999) 5 SCC 96 , in para no. 15 it was held as follows: “15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If the doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable.” The Hon’ble Supreme Court, further, held in paragraph no. 35 as under: “35. Where the eye witnesses’ account is found credible and trustworthy, a medical opinion pointing out to alternative possibilities cannot be accepted as conclusive. The eyewitnesses’ account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.” 11. As far as the medical evidence is concerned, it is apparent that the medical evidence corroborates with the ocular testimonies of the injured witnesses except the injury to the chest of PW-4 which was not noted by the Medical Officer. PW-6 Dr. As far as the medical evidence is concerned, it is apparent that the medical evidence corroborates with the ocular testimonies of the injured witnesses except the injury to the chest of PW-4 which was not noted by the Medical Officer. PW-6 Dr. Govindlal Kuril found the following injuries on the body of Sunil (PW-3): “Incised deep wound on right deltoid region of the arm, deep up to bone with complete cut off of deltoid muscles about one and one fourth inch with sharp margin.” According to PW-6 Dr. Kuril, the said injury could be caused by a heavy and sharp object, like axe (Wasla) which was shown to him. PW-6 issued a medical certificate of Sunil at Exh. 31 on the same day. PW-6 Dr. Kuril examined PW-5 Vitthal and found the following injuries: “Incised deep oblique injury over chest, vertical curve about six inches in length with sharp margins, deep upto ribs of the chest and the length of the injury ran from chest to the abdomen.” PW-6 opined that the said injury could be caused by an axe (Wasla). He issued medical certificate of Vitthal at Exh.32 and referred him to General Hospital Chandrapur. PW-6 examined Shantabai (PW-4) and noticed the following injuries: “(1) Deep incised wound over the face, left side, below eye, two inches in length, deep upto bone, with sharp margins. (2) Incised deep wound on left cheek, lower side of lower lip deep upto bone, five inches in length with sharp margins.” PW-6 Dr. Kuril opined that the said injuries could be caused by an axe (Wasla). He issued medical certificate of Shantabai at Exh.32. PW-6 specifically stated that injuries caused to Shantabai and Vitthal were sufficient in ordinary course of nature to cause death. Thus, as stated above, the medical evidence corroborates with the ocular testimonies of the injured witnesses. No doubt, injury is not noticed on the chest of Shantabai (PW-4) by Dr. Kuril (PW-6). Apart from the said discrepancy in the testimonies of PW-4 Shatabai and PW-3 Sunil, testimonies of all three injured witnesses corroborate with each other. It may be noted here that the said discrepancy does not go to the root of the case and all the injured witnesses are found to be trustworthy witnesses. The alleged incident had taken place in the broad-daylight and there is no reason to falsely implicate the appellant. 12. It may be noted here that the said discrepancy does not go to the root of the case and all the injured witnesses are found to be trustworthy witnesses. The alleged incident had taken place in the broad-daylight and there is no reason to falsely implicate the appellant. 12. The prosecution further relied on the testimony of PW-12 PSI: Riyazzuddin Deshmukh. It appears that FIR (Exh.23) was recorded by PSI Landge, who expired. According to PW-12 on 12.01.1997 while the appellant was in police custody, showed his willingness to point out the place where he had concealed the axe in a tin-box in his house. Thus, his statement was recorded in the presence of Panchas. Accordingly, the appellant took the police and the panchas to his house. He opened one tin-box kept in his house and took out an axe. It was taken charge of by police and the seizure memo was prepared (Exh.31). The said article which was marked as “A” was identified by PW-12 as well as the injured witnesses. It was a sharp edged weapon (Wasla). No doubt there is no evidence of Panchas in that regard. However, I do not find any infirmity with the testimony of the Investigating Officer in that respect. As already discussed above, all the injured have deposed before the Court in a most natural way and their testimonies are found to be reliable one. PW-12 has also told about the seizure of clothes of the appellant as well as the injured persons. Those clothes were taken charge by PW-12, the Investigating Officer. 13. In the case of Mst. Dalbir Kaur vs. State of Punjab, AIR 1977 SC 472 , the Hon’ble Apex Court has held that when Police Officers were examined to prove the fact of recovery at the instance of the accused but other witnesses were not examined, that by itself would not introduce any serious infirmity in the evidence furnished by the recoveries which at best was only a corroborative piece of evidence. The testimony of PW-12 has not been shaken in respect of the recovery of weapon. Nothing is brought on record to disbelieve his testimony. 14. It is interesting to note that the appellant examined Hafizkhan (DW-1) on his behalf. However he was not examined by the prosecution as he did not attend the Court. The testimony of PW-12 has not been shaken in respect of the recovery of weapon. Nothing is brought on record to disbelieve his testimony. 14. It is interesting to note that the appellant examined Hafizkhan (DW-1) on his behalf. However he was not examined by the prosecution as he did not attend the Court. According to DW-1, on the date of the incident, between 6.30 and 7.00 p.m. he was present on duty at the godown. However nothing transpired in his presence. No member of Kundawar family came to the godown in injured condition and lay there. The testimony of DW-1 in examination-in-chief indicates that the said witness wants to support the case of the appellant. DW-1 admitted that he had received a summons for deposing on behalf of the police. However he did not attend the court to depose as a witness. He was cross-examined exhaustively by the prosecution. From his testimony it can be gathered that he has not supported the case of prosecution as he wanted to support the case of the appellant. Thus, DW-1 is not at all found to be a trustworthy witness and his testimony is of little assistance to the defence. 15. The clothes of the injured witnesses, the appellant and the weapon were sent to the Chemical Analyser’s office by the Investigating Officer. The C.A. Report (Exh.14) lends its corroborative support to the prosecution case in a very consistent manner. The fullpant worn by the appellant at the time of the incident was found to be stained with human blood of group “A”. The C.A. report discloses the blood group of the appellant as ‘A’ group whereas the blood group of the injured persons is of ‘B’ group. The appellant has not given any explanation as to how the human blood was detected on the axe and how the human blood of ‘A’ group and ‘B’ group were detected on the fullpant worn by him at the time of incident. Thus, it is not clear as to how the blood of group ‘B’ was found on the fullpant of the appellant. The said fact clearly indicates that at the time of incident, the blood of the injured persons must have fallen on his clothes and that confirms the presence of the appellant at the place of incident. 16. Thus, it is not clear as to how the blood of group ‘B’ was found on the fullpant of the appellant. The said fact clearly indicates that at the time of incident, the blood of the injured persons must have fallen on his clothes and that confirms the presence of the appellant at the place of incident. 16. Thus, the prosecution has led a clear, consistent and cogent evidence by examining the injured witnesses. The medical evidence also clinchingly establishes the injuries sustained by PW-3 and PW-5. It is settled principle of law that conviction can be based on the sole testimony of the injured witness even without any corroboration of the medical evidence. Sole intention to commit murder is sufficient to prove the guilt of the accused. PW-6 Dr. Govind Kuril has clearly opined that the injuries found on the body of the injured persons are possible due to sharp and heavy object like axe (Wasla). The CA report supports the case of the prosecution. The appellant carrying the weapon with him while entering the house of the injured witnesses itself indicates his intention to kill them and thus attempted to cause their murder. It has also come on record that Shantabai (PW-4) had placed an order for preparing furniture by the accused. The appellant had not prepared the said furniture and he returned some amount to Shantabai, whereas the remaining amount was not returned by him. Shantabai used to demand the said amount from him. However he did not pay any heed to the said demand. Considering the adamant attitude of the appellant, Shantabai brought the bicycle from the house of the appellant which resulted into the appellant assaulting Shantabai and her sons, who intervened. The FIR is lodged by PW-3 without any delay as such. The injury caused to Shantabai on her face and cheek and Vitthal on his chest to abdomen, which are vital parts of the body, confirms the intention of the appellant to cause death of PW-4 and PW-5 who fortunately got medical aid immediately. The appellant also caused serious injury to the shoulder of PW-3. The Medical Officer has specifically opined that the injuries caused to PW-4 and PW-5 were sufficient to cause death in ordinary course of nature. 17. The upshot of the above discussion is that the prosecution has proved its case beyond reasonable doubt. The appellant also caused serious injury to the shoulder of PW-3. The Medical Officer has specifically opined that the injuries caused to PW-4 and PW-5 were sufficient to cause death in ordinary course of nature. 17. The upshot of the above discussion is that the prosecution has proved its case beyond reasonable doubt. The learned trial Judge has rightly convicted and sentenced the appellant for an offence punishable under section 307 of the IPC. No interference is called for as far as the judgment and order passed by the learned Additional Sessions Judge is concerned. The Appeal, therefore, fails. Hence the following order: ORDER (i) Criminal Appeal No. 30/2004 is dismissed. (ii) The judgment and order dated 17th December, 2003 passed by the learned Additional Sessions Judge, Chandrapur in Sessions Case No. 54/1997 convicting the appellant for an offence punishable under section 307 of the IPC and directing him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,500/- in default, to suffer R.I. for further period of one month, along with the fine amount, is maintained. (iii) The appellant who is on bail, shall surrender to his bail bonds, within four weeks, to serve out the remaining part of the sentence.