CRIMINAL APPEAL NO. 30 OF 2008

26th February 2020

Petitioner Counsel: Shri S. R. Jaiswal
Respondent Counsel: Shri I. J. Damle
Act Name: Indian Penal Code, 1860

HeadLine : Attempt to murder - Conviction - Corroborative ocular and medical evidence
Appreciation of evidence - Testimony of injured witness – Credibility

Section :
Section 34 Indian Penal Code, 1860 Section 307 Indian Penal Code, 1860

JUDGEMENT

1. This appeal has been directed against the judgment and order dated 18.12.2007 delivered by the learned Ad-hoc Additional Sessions Judge-3, Amravati in Sessions Trial No. 151/2004, whereby the learned trial Judge has convicted the appellants (hereinafter referred to as “the accused” for the sake of brevity) for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for a period of three years each and to pay a fine of Rs.1,000/- (Rs. One Thousand) each, in default, to suffer rigorous imprisonment for six months each.

2. The factual matrix of the prosecution case, can be narrated as under:
The complainant PW4-Dilip Wamanrao Chopde was the resident of Ramabai Ambedkar Nagar, Amravati, so also the injured witness PW5-Rahul Ambadas Gethe was also the resident of the same vicinity. On 04.05.2004 at about 9.30 to 10.00 p.m., when PW4-Dilip Chopde was proceeding towards the pan-stall of Duryodhan at Vilas Nagar, he noticed that the crowd had gathered infront of the pan-stall. When he went ahead to see as to what had happened, he found that all four accused were dragging PW5-Rahul Gethe. PW4-Dilip Chopde then followed the accused. In the lane, A1-Raju Shendre dealt blows by means of sword on the hand of PW5-Rahul Gethe. Accused Ravindra Patankar also assaulted PW5-Rahul Gethe by means of sword. A2-Sunil and A3-Mukesh were holding ironpipes. They also assaulted PW5-Rahul Gethe by means of ironpipes. PW4-Dilip Chopde intervened the quarrel to rescue PW5- Rahul Gethe and snatched away iron-pipe from the hands of A2-Sunil Shendre. However, the said iron-pipe was taken away by the father of A2-Sunil Shendre. In the said incident PW5- Rahul Gethe sustained injuries on his head, hands and legs. Thereafter, all the four assailants fled away from the spot. Pankaj Manohare and Raut took PW5-Rahul Gethe to Irwin Hospital by putting him in the auto-rickshaw. PW4-Dilip Chopde also proceeded to the Hospital. A1-Raju & A2-Sunil having enmity with PW5-Rahul Gethe, due to which the said incident had taken place. PW4-Dilip Chopde then lodged the oral report about the incident at Police Station Gadge Nagar vide Exh.58.

3. PW6-PI Prakash Deshmukh recorded the complaint of PW4-Dilip Chopde and on the basis of the said report, Crime No.165/2004 was registered at Police Station Gadge Nagar. PW6-PI Prakash Deshmukh then recorded the statement of PW8-Pankaj Manohre (hostile witness). Since PW8-Pankaj Manohre was in injured condition he was referred for medical examination. During the same night at about 01.30 hours of 05.05.2004, A1-Raju Shendre, A2-Sunil Shendre and accused Ravindra Patankar were arrested. PW10-PSI Kashinath Apar recorded the statement of witnesses. A3-Mukesh Gupta showed his willingness to point out the place where he had kept the weapon. Accordingly, memorandum panchnama was drawn vide Exh.76. A3-Mukesh led the police and panchas to his house and handed over the iron-pipe which was taken charge by the police under seizure panchnama (Exh.77). On 07.05.2004 A1- Raju showed his willingness to point out the place where he had kept the sword. Accordingly, memorandum panchnama was drawn vide Exh.78. Thereafter, A1-Raju led the police and panchas to his house and produced the sword from his house which was seized by police under panchnama (Exh.79). On the same day accused Ravindra Patankar also showed his willingness to point out the place where he had kept the sword. Accordingly, memorandum panchnama was drawn vide Exh.80. Thereafter, accused Ravindra Patankar led the police and panchas to his house and produced the sword from his house which was seized by police under panchnama (Exh.81). A2-Sunil Shendre also showed his willingness to point out the place where he had kept the iron-pipe. Accordingly, memorandum panchnama was drawn vide Exh.82. Thereafter, A2-Sunil led the police and panchas to his house and produced the iron-pipe from his house which was seized by police under panchnama (Exh.83). The clothes of the accused persons were seized. All the seized articles were sent to the CA Office for its analysis. The C.A. Reports (Exh.41 to 46) were collected. Statements of the witnesses were recorded and after completion of investigation, charge-sheet came to be filed in the Court of learned Judicial Magistrate First Class, Amravati.

4. Since the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The learned trial Judge after recording the evidence and hearing both the sides convicted the accused, as aforesaid.

5. I have heard Shri S.R. Jaiswal, Advocate (Appointed) for the accused and Shri I.J. Damle, learned APP for the State. With their able assistance, I have gone through the record and proceedings of the case.

6. The learned appointed Advocate for the accused has vehemently argued that the learned Ad-hoc Additional Sessions Judge-3, Amravati has not evaluated the evidence of prosecution witnesses in its proper perspective and has erroneously convicted the accused. It is further submitted that, even the injured witness PW8-Pankaj Manohare did not support the prosecution case, so also there is discrepancy in the testimony of PW4-Dilip Chopde and PW5-Rahul Gethe. However, the testimony of those witnesses has been relied upon by the learned trial Judge and has erroneously convicted the accused.

7. Per contra, Shri I.J. Damle, learned APP for the State, contended that there is no material discrepancy in the testimony of the witnesses which goes to the root of the case and also the medical evidence corroborates with the ocular testimony of the prosecution witnesses on material aspect. It is further submitted that the learned trial court has properly assessed the evidence of the prosecution witnesses and has rightly convicted the accused.

8. In order to consider the rival contentions of both the sides, it would be advantageous to go through the evidence of the prosecution witnesses i.e. PW4-Dilip Chopde, PW5-Rahul Gethe, PW7-Dr. Manish Rathi, Medical Officer who examined injured PW5-Rahul Gethe, PW6-PI Prakash Deshmukh and PW10-PSI Kashinath Apar Investigating Officers . It is submitted that the alleged eye witness to the incident so also the panchas have not supported the case of the prosecution, therefore, they were declared hostile. However, nothing fruitful was served, although they were subjected to cross-examination.

9. The testimony of PW4-Dilip Chopde who is the first informant and who followed the victim to the Hospital shows that, on 04.05.2004 at about 9.00 to 9.30 p.m. he went to the pan shop. He noticed a mob gathered in the lane of Vilas Nagar. He further noticed that all the accused persons who were known to him were dragging PW5-Rahul Gethe. He went to rescue PW5-Rahul Gethe, at that time, he noticed that A1-Raju and accused Ravindra Patankar were assaulting PW5-Rahul Gethe by means of sword and A3-Mukesh and A2-Sunil were holding iron-pipes and they were assaulting PW5-Rahul Gethe by means of those iron-pipes, due to which PW5-Rahul Gethe sustained bleeding injuries and he fell down on the ground. Two to three persons came there and took PW5-Rahul Gethe to the Irwin Hospital in the auto-rickshaw. In the Hospital PW4-Dilip Chopde came to know that there was previous enmity between accused and PW5-Rahul Gethe. PW4-Dilip Chopde then proceeded to the Gadge Nagar Police Station and lodged his report (Exh.58). PW4-Dilip Chopde identified the weapons i.e. Article ‘A to D’, when shown him in the court. The exhaustive cross-examination of PW4-Dilip Chopde shows that his testimony has not been shattered on the material aspect. An improvement was pointed out in his testimony to the effect that he saw the accused while dragging PW5-Rahul Gethe infront of the Pan Shop, the Portion was marked as ‘A,’ and it was proved by the Investigating Officer PW6-PI Prakash Deshmukh and it was marked as Exh.65. PW4-Dilip Chopde admitted that PW5- Rahul Gethe was dragged in the lane of Mukesh Sahu from the road and he noticed the incident of assault which took place in the lane.

10. The cross-examination of PW4-Dilip Chopde shows that the incident had taken place in the lane of Vilas Nagar. In my considered opinion there is no discrepancy as such in the testimony of PW4-Dilip Chopde which goes to the root of the case. It was put up to PW4-Dilip Chopde that, in the Hospital there was discussion to the effect that the accused assaulted PW5-Rahul Gethe on account of previous enmity. However, the said discussion does not affect the case of the prosecution, insofar as the evidence of PW4-Dilip Chopde is concerned. Significantly, the evidence of PW4-Dilip is in consonance with the recitals of First Information Report (Exh.59). Thus, PW4- Dilip Chopde is found to be reliable and trustworthy witness. Significantly, the First Information Report (Exh.59) was lodged promptly by PW4-Dilip Chopde. Thus, there is nothing on record to disbelieve the testimony of PW4-Dilip Chopde.

11. The deposition of PW5-Rahul Gethe demonstrates that on 04.05.2004 at about 9.30 to 10.00 p.m. he was standing in Vilas Nagar Chowk, he was proceeding to purchase medicine. While he was standing near the pan shop of Duryodhan (not examined) all the accused approached near the pan shop A1-Raju Shendre and accused Ravindra Patankar was holding swords, whereas A2-Sunil Shendre and A3-Mukesh Gupta was holding iron rods. A1-Raju Shendre assaulted on his head by means of sword when he tried to avoid the said blow, it hit to his hand, due to which he sustained injury on the thumb of his right hand. Accused Ravindra Patankar assaulted him by means of sword. A2-Sunil Shendre and A3-Mukesh Gupta also assaulted him by means of iron rods. PW5-Rahul Gethe started running in the back side lane. He entered in one house. Accused came there, dragged him out of the house, made him to fall on the ground and again assaulted him by means of sword and iron pipes. At that time, PW4-Dilip Chopde was present at the place of incident, so also PW1-Vinod Barse (hostile), PW3-Sanjay Dande (hostile) were also present on the spot. PW5-Rahul Gethe entered in the house of PW2-Ramabai Gawane (hostile witness). PW8-Pankaj Manohare (hostile) and PW4-Dilip Chopde took him to the Hospital in the auto-rickshaw. According to PW5-Rahul Gethe, due to the previous dispute in between him and the accused he was assaulted by them. PW5- Rahul Gethe identified the articles i.e. weapons in the court. Some improvements were pointed out in the testimony of PW5- Rahul Gethe in his cross-examination to the effect that accused Nos.1 and 2 were holding swords and accused Nos. 3 and 4 were holding Iron rods. So also when accused No.1 raised sword for giving blow, he tried to avoid the said blow due to which injury was caused to the thumb of his right hand. Although, those improvements were pointed out in the testimony of PW5-Rahul Gethe, however, the fact remains that the presence of PW4-Dilip Chopde on the place of incident has not been shattered in the cross-examination of PW4-Dilip Chopde as well as PW5-Rahul Gethe and that the contents in the First Information Report (Exh.59) lodged by PW4-Dilip Chopde promptly corroborate with the testimony of these two witnesses. Therefore, discrepancies do not go to the root of the prosecution case. Thus, the fact remains that all the accused were armed with weapons and they assaulted PW5-Rahul Gethe.

12. The character of PW5-Rahul Gethe was assailed on the count that he was involved in a murder case as well as NDPS case and decoity, so also he was in jail and three criminal cases were pending against him. However, the character of PW5-Rahul Gethe does not play any role, insofar as the present incident is concerned, only because PW5-Rahul Gethe is involved in criminal cases, that does not affect his testimony which is otherwise found to be credible one.

13. The testimony of PW4-Dilip Chopde and PW5-Rahul Gethe corroborate with the medical evidence inasmuch as the testimony of PW7-Dr. Manish Rathi, Medical Officer shows that he has examined PW5-Rahul Gethe and found following injury:
i. Incised wound 1 x ¼ x ¼ inch right parieto occipital area of scalp.
ii. Incised wound 1 x ¼ x ¼ inch upper 1/3rd left shin of left Leg.
iii. Incised wound 1 x ¼ x ¼ inch left foot.
iv. Abrasion 3” x ¼" on left thigh.
v. Incised wound 1" x ¼" x ¼" upper 1/3rd right shin of right leg.
vi. Incised wound ½" x ¼" x ¼" right ankle near medial mallelouss.
vii. Incised wound 1" x ½" x ½" base of right thumb.
viii. Abrasion 3" x ¼" right thigh.
Injury No.1 is on vital part of the body and it may be a fatal injury and that injury was were possible by sword. It appears that the injury Nos.4 & 8 were caused by the hard and blunt object. According to the Medical Officer, injury Nos. 1, 2, 3, 5, 6 and 7 can be caused by hard and sharp object like sword. In that case the abrasion as described as injury No.4 was caused by hard and blunt object. It appears that the injury Nos. 4 & 8 both are abrasions and caused by hard and blunt object and other injuries were caused by hard and sharp object. PW7-Dr. Manish Rathi has also described the injuries caused to PW8- Pankaj Manohare which was a contusion ½" x ½" above right ear on scalp and the injury was caused by hard and blunt object and the age of injury was about 24 hours. The said facts indicate that PW8-Pankaj Manohare was also injured and he was examined by PW7-Dr. Manish Rathi and issued a medical Certificate vide Exh. 69. Although, PW8-Pankaj Manohare did not support the case of the prosecution, on the aspect as to when he was assaulted by the assailants, however, the fact remains that he had also received injury during the course of incident and his presence was also proved at the place of incident.

14. The recovery of weapons has been proved by the Investigation Officer PW10-PSI Kashinath Apar. The panchas in that regard did not support the case of the prosecution.

15. In this context, it can be said that the testimony of police witnesses can be relied upon if it is found to be trustworthy. In the case of Girja Prasad (Dead) by LRs vs. State of M.P. reported in 2007 AIR SCW 5589, the Hon’ble Apex Court in Paragraph No.24 observed thus:-
“It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. The rule of prudence may require more careful scrutiny of their evidence. But if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.”

16. In the case of Baldev Singh vs. State of Haryana reported in 2015 ALL MR(Cri) 4967(SC), the Hon’ble Apex Court observed thus,
“10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.”

17. Thus, the oral assessment on record shows that the accused persons assaulted PW5-Rahul Gethe and his testimony supported by the medical evidence. The learned trial court has properly evaluated the evidence and has rightly convicted the accused. Hence, there is no illegality or perversity found in the judgment passed by the learned trial court. In view thereof, no interference is called for.

18. The learned Advocate for the accused submitted that the incident had taken place way back in the year 2004 which is 16 years back and now the accused persons are settled in their life. Hence, leniency be shown to them.

19. In view of the above facts and circumstances, the following order would meet the ends of justice.
ORDER
(i) Criminal Appeal No. 30/2008 is partly allowed.
(ii) The impugned judgment dated 18.12.2007 delivered by the learned Ad-hoc Additional Sessions Judge-3, Amravati in Sessions Trial No. 151/2004 for the offence punishable under Section 307 R/w. Section 34 of the Indian Penal Code is confirmed. However, instead of rigorous imprisonment for three years each, the appellants/accused i.e. A1-Raju Yeshwantrao Shendre, A-2 Sunil Yeshwantrao Shendre and A3-Mukesh Mulchandra Gupta, are awarded sentence to suffer rigorous imprisonment for one year each.
(iii) The fine amount is increased from Rs.1,000/- to Rs.3,000/- (Rs. Three Thousand) each, in default to undergo rigorous imprisonment for one month each.
(iv) The appellants/accused i.e. A1-Raju Yeshwantrao Shendre, A-2 Sunil Yeshwantrao Shendre and A3-Mukesh Mulchandra Gupta, shall surrender their bail bonds, within a period of one month.
(v) The professional fees of Shri S.R. Jaiswal, the learned Advocate (Appointed) for the AppellantAccused be quantified as per rules.

20. Criminal Appeal is disposed of accordingly.

Decision : Order accordingly