2013 ALL MR (Cri) 3419
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

M.L. TAHALIYANI, J.

Suresh S/O. Pandurang Kale Vs. The State Of Maharashtra

Criminal Appeal No.366 of 2010

26th June, 2013

Petitioner Counsel: Mrs. M.P. MUNSHI
Respondent Counsel: Smt. K.R. DESHPANDE

Penal Code (1860), S.307 - Attempt to murder - Evidence and proof - Alleged scuffle between accused and brother of complainant i.e PW 10 and assault by sharp shaving blade on PW10 - Prosecution did not explain the injuries found on the person of appellant - Independent eyewitness turned hostile - Prosecution did not explain as to why independent witnesses not examined if 25 persons had seen alleged incident - PWs in their cross-examination admitted that they had not stated before Magistrate that the appellant inflicted injury by means of a blade - Considering the nature of omissions in earlier statements evidence that appellant was carrying a blade with him, not believed - Order of conviction by trial Judge not sustainable - Hence, appellant entitled to be acquitted. (Paras 8, 9, 10)

JUDGMENT

JUDGMENT :- This is an appeal against the judgment and order passed by the learned Additional Sessions Judge, Achalpur in Session Trial No.47/2007. The appellant has been convicted for the offence punishable under Section 307 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.300/-, in default to undergo rigorous imprisonment for two months.

2. The incident in which the victim Satish was injured had occurred on 18-1-2007. One Babanrao had a vacant plot on the backside of house of the appellant. Said Babanrao had asked the victim Satish and his brother Raju to remove thorny bushes from the said plot. The appellant thought that the complainant Raju and his brother Satish (victim) had been removing bushes from the plot of the appellant. There was verbal quarrel between the appellant on the one hand and the complainant and his brother on the other hand. The said quarrel had subsided. However, at about 7.00 p.m. the brother of the complainant namely Satish was assaulted by the appellant near the shop of Padamsingh Thakur by means of a shaving blade. The brother of the complainant was immediately removed to hospital. He had sustained three injuries described as under:-

i) Incised wound over lips and right side of nose having size 5 cm. x 1 cm. x 1 cm.

ii) Incised wound 1 cm. x 0.5 cm. x 0.5 cm. over right side of chin region.

iii) Incised wound 16 cm. x 1 cm. x 1 cm. over neck anterior laterally.

3. Offence under Section 307 of the Indian Penal Code was registered against the appellant on the complaint made by the complainant. Further investigation was carried out. During the course of further investigation, spot panchanama was drawn and the appellant was arrested. His blood stained clothes were also seized by the police. After completion of investigation, charge-sheet was filed in the court of Magistrate. The same was committed to the Court of Session for trial according to law.

4. A charge under Section 307 of the Indian Penal Code was framed on 13-6-2008. The appellant had pleaded not guilty and had claimed to be tried. His defence was of total denial.

5. The prosecution has examined in all fourteen witnesses in support of its case. P.W.1-Pradip Gawande, P.W.2-Arvind Wankhade, P.W.7-Umesh Sangole and P.W.8-Mukunda Wakode had turned hostile. They were panch witnesses present during the course of various panchanamas recorded during the course of investigation. P.W.4-Gajanan Dahikar, who according to prosecution case was eyewitness, had also turned hostile. The judgment of the trial Court is based mainly on the evidence of P.W.10-Satish Yeole, who was injured in the alleged incident of assault and P.W.11-Raju Yeole, the complainant and brother of P.W.10. The trial Court has also taken support of the medical evidence to arrive at the judgment of conviction.

6. P.W.10 in his evidence has stated that the incident had occurred about 2 to 3 years back at about 7-00 p.m. During the course of quarrel between the appellant and P.W.10, there was a scuffle and during the course of said scuffle, the appellant had caught hold of hair of P.W.10 and gave blows by means of a shaving blade on neck and face of P.W.10. P.W.10 had fallen down and he was removed to Government Hospital Daryapur by his brother P.W.11 and one Hashmat. He was admitted in the hospital for 10 to 15 minutes and thereafter shifted to Irwin Hospital, Amravati for further treatment. The statement was recorded in the hospital. It is stated by his that he had sustained bleeding injuries on his neck due to the said assault. P.W.11 was not present when the quarrel between P.W.10 and the appellant had commenced. He, however, reached the spot immediately after commencement of quarrel between P.W.10 and the appellant. P.W.11 has also stated that the appellant had inflicted blows by means of a blade on neck of P.W.10. The Medical Officer P.W.6-Dr. Vivek Bansod has stated that he had examined the witness Satish on 18-1-2007 at Sub-District Hospital, Daryapur. He found following injuries on his person.

i) Incised wound over lips and right side of nose having size 5 cm. x 1 cm. x 1 cm.

ii) Incised wound 1 cm. x 0.5 cm. x 0.5 cm. over right side of chin region.

iii) Incised wound 16 cm. x 1 cm. x 1 cm. over neck anterior laterally.

According to this witness, the injuries could have been caused by a sharp weapon. Though the independent eyewitness was declared hostile, the learned trial Court was of the view that the evidence of P.W.10 and P.W.11 had proved the charge framed against the appellant.

7. The learned Counsel Mrs. M.P. Munshi has submitted that in view of the fact that eyewitnesses have turned hostile, it was the duty of the trial Court to examine the evidence of P.W.10 and P.W.11 with great care and caution. The trial Court should have taken into consideration that P.W.11 was brother of the injured P.W.10.

8. The learned Additional Public Prosecutor Mrs. K.R. Deshpande, however, has submitted that though there are minor discrepancies here and there in the evidence of P.W.10 and P.W.11, their evidence proves the charge framed against the appellant. I have gone through the evidence of P.W.10 and P.W.11. In the first place, it may be noted here that P.W.10 has stated in his examination-in-chief itself that initially there was a scuffle between him and the appellant. It is not clear as to from where the blade was acquired by the appellant. It is not the case of prosecution that the appellant knew that P.W.10 was supposed to be on the place of incident and that therefore, he had planned accordingly. In the circumstances, it was necessary for the learned trial Judge to examine as to how a blade had appeared on the scene of offence suddenly. In this regard, the trial Court should have also noted that the appellant also had a superficial lacerated wound, which has not been explained by the prosecution. The Investigation Officer was crossexamined on this aspect of the case by the learned Advocate for the appellant in the trial Court. It was stated by the Investigating Officer that he found that there was an injury on left palm of the appellant. The injury appeared to have been caused by a sharp weapon. It is further admitted by this witness that the appellant had an injury on his head when he was sent to the hospital for medical examination after arrest. As such, in the circumstances of the case, the injuries found on the person of the appellant were necessary to be explained, particularly in the light of admission on the part of P.W.10 that there was a scuffle between P.W.10 and the appellant. Minor injuries on the person of accused are not always necessary to be explained. That may depend upon the facts of each case. As already stated in the present case, I am of the view that considering the history of scuffle between P.W.10 and the appellant, it was necessary for the prosecution to explain the injuries found on the person of the appellant. In the absence of such explanation the Court can infer that the incident had not occurred in the manner described by P.W.10 and P.W.11.

9. Apart from this, it is also necessary to be noted here that a statement of P.W.10 was recorded by the Magistrate as police probably might be apprehending that in the event of P.W.10 not surviving the injuries, the said statement could be used as dying declaration. P.W.10, in his cross-examination, has admitted that he had not stated before the Magistrate that the appellant had inflicted injury by means of a blade.

10. P.W.11, in his cross-examination, has admitted that near about 25 persons had gathered on the spot. The prosecution has not explained as to why independent witnesses were not examined if 25 persons had seen the alleged incident. P.W.11 has also admitted in his cross-examination that he had not stated before the police that the appellant had given blows on nose and ear of P.W.10 by means of a blade. He goes to say that his statement was not recorded by the police. He further states that he did not know the contents of his statement as it was never recorded by the police. Considering the nature of evidence of P.W.10 and P.W.11, it is abundantly clear that it was not safe on the part of the trial Court to believe the one line evidence of P.W.10 and P.W.11 that the appellant had inflicted blows on P.W.10 by means of blade. Considering the nature of omissions in the earlier statement, it is highly doubtful as to whether the appellant was carrying a blade with him.

11. For all the reasons, I am of the view that the judgment of the trial Court cannot be sustained. Hence, I pass the following order.

The appeal is allowed.

The judgment and order passed by the learned Additional Sessions Judge, Achalpur in Sessions Trial No.47/2007 on 08-2-2010 is set aside. The appellant is acquitted of the offence punishable under Section 307 of the Indian Penal Code.

The appellant shall be released from the prison if not required in any other case.

Fine amount, if any, paid by the appellant shall be refunded to him.

The fees of learned Counsel Mrs. M.P. Munshi is quantified at Rs.6000/-.

The appeal accordingly stands disposed of.

Appeal allowed.