High Court
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{1} CRI APPEAL 130 OF 2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 130 OF 20041.Balu S/o Umaji ShepAge: 28 years, Occu.: Agri..,R/o. Shepwadi, Tq.Ambejogai,Dist.Beed.2.Bharat Vishnu KaradAge: 24 years, Occu.: Education,Ambajogai, Tq.Ambajogai, Dist.Beed.….Appellants(Orig. Accused) Versus.The State of Maharashtra Through Police Station Officer, Police Station, Ambajogai,Tq.Ambajogai, Dist.Beed.…..Respondent …..Advocate for Appellants : Mr. N.P. Patil Jamalpurkar APP for Respondent : Mr.A.A.A.Khan ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 18 JULY, 2024 PRONOUNCED ON : 30 JULY, 2024 JUDGMENT :- 1. In this appeal, convicts for offence under Section 307 andSection 506 (II) read with Section 34 of the Indian Penal Code (IPC),have taken exception to the judgment and order passed by learned IIAd-hoc Additional Sessions Judge, Ambajogai in Sessions Case No.60of 2001 dated 21-02-2004. {2} CRI APPEAL 130 OF 2004 FACTS GIVING ARISE TO SESSIONS TRIAL 2. A programme known as “Natrangi Nar” was held in Auditoriumof Yogeshwari College, Ambajogai on 11-04-2001. InformantVenkatesh, joined by his friends Hemant Kapse, Dhananjay Pawar,Raviraj Kale were attending the programme. Accused no.2 was alsoone of the audiences. While appreciating the performance, accusedno.2 was raising his hands thereby obstructing vision of HemantKapse. Heated exchange of words took place, after which accusedno.2 left the auditorium issuing threats to see Hemant. Shortly hereturned with accused no.1. Accused no.2 inflicted knife blow in theabdominal part of Hemant whereas accused no.1 pushed and madeRaviraj Kale fall. Thereafter, accused no.1 again inflicted blow on theback of Hemant, who suffered bleeding injury. Accused nos.1 and 2also showered kick and first blows on Venkatesh and Dhananjay.Injured were taken to the hospital and meanwhile, informantVenkatesh rushed to Police Station, reported the occurrence, on thebasis of which, Crime bearing no.72 of 2001 was registered by Police.PW10 Gaikwad (PSI), who was entrusted with investigation,carried out the same and on gathering evidence, accused werechargesheeted. Case being exclusively triable by Sessions Judge, itcame to be committed on the file of learned II Adhoc Additional
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{3} CRI APPEAL 130 OF 2004Sessions Judge, Ambajogai, who framed and explained charge andconducted trial, which ended in above conviction. Hence, thepresent appeal. SUM AND SUBSTANCE OF THE ARGUMENTSOn behalf of appellants :3. Learned Counsel for the appellants submitted that prosecutionhad miserably failed to establish charges beyond reasonable doubt.According to him, at the outset, charge itself was misplaced. Thatthere was no occurrence to attract offence under Section 307 of theIPC. He further pointed out that accused were unknown toinformant as well as so called injured. That no TI Parade has beenconducted. Therefore, identification of accused is doubtful. That onthis point, he further emphasized that incident took place when someFolk dance was in progress and there was light arrangement only onstage whereas remaining part of the Auditorium, where audiencesand spectators were sitting, was dark. Therefore, identity of accusedalleged assailants, is not proved beyond doubt. 4.He further pointed out that so called recovery is doubtful. ThatPancha to recovery has not supported. That there is no full-proof {4} CRI APPEAL 130 OF 2004scientific evidence and moreover, he emphasized that seizedmuddemal was despatched for analysis after inordinate delay.Therefore, there is doubt about safe custody of the muddemalthereby raising possibility of tampering. He added that there is noproper custody or linked evidence thereby rendering prosecution caseof recovery and seizure doubtful. 5.Criticizing the judgment passed by learned trial Judge, learnedCounsel would submit that there is incorrect appreciation ofevidence. That material omissions, contradictions, improvements,which are brought on record in cross-examination, are brushed aside.Therefore, according to him, findings and conclusion not beingsupported by sound reason, such judgment cannot be sustained andhe prays to interfere by setting aside the same. Learned Counselseeks reliance on the decision in the case of State of Maharashtra v.Genu Yeshwant Divate, 1989 Mah.LR 534. On behalf of State :6.On the other hand, learned APP submitted that there is clear,cogent convincing evidence. That informant is a direct eye witness.That there is injured eye witness account. That they all are {5} CRI APPEAL 130 OF 2004consistently deposing the events that took place in the Auditorium.That presence of accused has not been denied or disputed. Thatevidence of informant and injured has remained unchallenged andunshaken. That there is recovery of deadly weapon like knife ofwhich witnesses are deposing about its use. That role of bothaccused are distinctly and consistently coming on record. Thatmedical expert’s evidence corroborates ocular and injured accountand so he supports the judgment passed by learned trial Court andprays to dismiss the appeal for want of merits. EVIDENCE BEFORE TRIAL COURT7.In support of its case, prosecution has adduced evidence of inall eleven witnesses. Sum and substance of their evidence is asunder:PW1 Ranghnath Venkatrao Khogare is pancha to seziurepanchanama of clothes of injured. Seizure Panchanama is at exh.22.PW2 Deelip Bhanudas Bhalekar is pancha to spot panchanama.Spot Panchanama is at exh.26. PW3 Chimaji Pandurang Dhotre is pancha to seizure of knifeon body search of accused Balasaheb. Seizure panchanama is atexh.29. {6} CRI APPEAL 130 OF 2004PW4 Venkatesh Dhondiram Thakur is informant. He deposedabout he attending programme in the Auditorium of college on11-04-2001. He named friends accompanying him and also deposedthat accused no.2 Bharat Karad was sitting in their front side and wasraising hands due to which Hemant Kapse was unable to see theevent and was therefore, questioned. Accused no.2 left issuing threatto see and brought two boys. Accused no.2 gave knife blow onabdomen of Hemant and accused no.1 gave knife blow on back ofHemant. Injured went to hospital and this witness went to PoliceStation and lodged report exh.32.PW5 Dhananjay Achutrao Pawar deposed about occurrencebetween accused and Hemant Kapse dated 12-04-2001, exchange ofwords between Hemant Kapse and accused no2., accused no.2leaving by issuing threats and he returning with accused no.1, bothaccused nos.1 and 2 inflicting knife blows on Hemant Kapse andinjured being taken to hospital.PW6 Hemant Kashinathrao Kapse injured stated that whilewatching programme in the Auditorium of the college, accused no.2was raising hands and was so requested to not to do so as he couldnot see the programmee properly. Exchange of words taking placebetween both of them. Accused no.2 leaving after issuing threats and {7} CRI APPEAL 130 OF 2004returning with accused no.1. First accused no.2 gave blow of knife inhis stomach whereas accused no.1 gave knife blow on the back of thiswitness. This witness suffered bleeding injury and he was taken toS.R.T.R. Hospital, Ambajogai. PW7 Dr.Rahis Rashid Hashmi is Medical Officer, who examinedinjured and issued medical certificate exh.39. PW8 Ram Lala Dhotare is pancha witness for body search ofaccused. PW9 Dr.Sudhir S/o Bhaskar Deshmukh is Medical Officer, whoconducted surgery and placed papers exh.53 on record.PW10 Manik Shrirang Gaikwad (PSI) is the InvestigatingOfficer. PW11 Maruti Eknathrao Chandanshiv (PHC) is the PoliceOfficer, who recorded report of informant. ANALYSIS8. Sum and substance of PW4 Venkatesh / informant’s evidenceat exh.31 is that incident took place in the premises of YogeshwariScience College, Ambajogai. A folk dance program was in progress.Informant claimed that he had been to attend such programmealongwith PW6 Hemant Kapse, Raviraj Kale and PW5 Dhananjay {8} CRI APPEAL 130 OF 2004Pawar. That when the song was in progress, accused no.2, who wasalso attending the programme, was raising hands, obstructing thevision of PW6 Hemant and was therefore, requested not to do so andthis triggered quarrel. Accused no.2 left issuing threats and returnedwith accused no.1. According to him, accused no.2 gave blow ofknife in the stomach of PW6 Hemant whereas accused no.1 initiallypushed Raviraj Kale and inflicted blow of knife on Hemant nearwaist resulting into bleeding injury. According to him, Hemant,Raviraj and Dhananjay went to hospital and he reported occurrenceto Police. On visiting cross-examination of above witness, it’s tenor goesto shows that there is no denial of the function and even it is soevident from paragraph 5 of the cross-examination. Similarlyparagraph 8 further shows that presence of accused and victim is gotconfirmed. Who was sitting where is also got confirmed. Paragraph9 also shows that presence and occurrence is admitted. Omissionsbrought in paragraph 10 do not seem to be material omissions. Evenparagraph 13 marks presence of accused nos.1 and 2 therefore,testimony of informant has remained steadfast regarding occurrenceof assault and presence of accused. {9} CRI APPEAL 130 OF 20049.Even PW5 Dhananjay in paragraph 3 narrated about theincident, venue of incident, which was attended by himself, PW6Hemant and informant PW4 Venkatesh. Even he stated aboutexchange of words taking place between accused no.2 and HemantKapse and accused no.2 leaving after issuing threats to see andreturning with accused no.1. Even he defined the role of accusednos.1 and 2 i.e. accused no.2 inflicting knife blow on the stomach ofHemant and accused no.1 inflicting knife blow on the back ofHemant and he suffering injuries and he himself and Raviraj, Hemantvisiting S.R.T.R. Hospital. Paragraph 6 of cross-examination of above witness shows thatthere is no dispute or challenge about accused no.2 leaving theprogramme to call his friends. Only omission brought in paragraph 7is that after threatening Hemant, accused no.2 left. Description ofthe scene of occurrence is brought in paragraph 8 of the cross-examination. Manner of cross-examination in paragraph 8 alsoshows that overt act and implication of the same is rather gotconfirmed. Cross-examination in paragraph 9 and the answer thataccused nos.1 and 2 did not make more attack after instigation alsoshows that there is no serious challenge to the role and assault. 10.PW6 Hemant, injured in paragraph 2 deposed about requesting {10} CRI APPEAL 130 OF 2004accused no.2 not to raise hands as he was unable to see theprogramme properly and thereafter, accused no.2 quarreling withhim, and then leaving by issuing threats to see him and returningwith accused no.1. He deposed that first accused no.2 gave blow ofknife on his stomach i.e. navel part whereas accused no.1 gave blowon the back at right side. When his friend Raviraj tried to intervenehe was pushed and made to fall. He deposed about sustainingbleeding injury and being taken to S.R.T.R. Hospital Ambajogai andtaking treatment for 26 days. Only omission brought in paragraph 8 of cross-examination isabout accused no.2 sitting in his front and uttering words like “Toomajala ahes”. Paragraph 9 of cross-examination shows that there isomission about bending at the time of first blow, his friend Ravirajcoming to his rescue and accused no.1 pushed him and he fall down.Except such omission, testimony of PW6, more particularly,paragraphs 2 and 3 of examination-in-chief has not been touched ordisturbed. 11.Therefore, sum total of above evidence is that PW4 Venkatesh,PW5 Dhananjay and PW6 Hemant demonstrates and substantiatedthat in the night of 11-04-2001, they had been to attend a function, {11} CRI APPEAL 130 OF 2004which was also attended by accused no.2. All are consistent aboutheated exchange of words taking place between injured and accusedno.2. All are also consistent about accused no.2 leaving after issuingthreats to see and returning with accused no.1. Roles of bothaccused are consistently stated by not only informant PW4 Venkateshbut also by PW5 Dhananjay and very injured PW6 Hemant. Bothaccused are identified by the witnesses in the court.12.Testimonies of Medical Officers PW7 Dr.Hashmi and PW9Dr.Deshmukh confirm injuries, its nature and treatment. Medicalevidence has also remained intact. Therefore, here there is convincing, reliable cogent evidence ofdirect eye witness PW4 Venkatesh / informant and injured witnessesfinding support from medical evidence. 13.Learned Counsel for appellants would strenuously andfervently submit that there is no independent evidence. According tohim, function was at night hours, there was light only on stage andrest of the place was dark and therefore, identity fo actual assailantsis doubtful. He submitted that TI parade is not conducted. Furtheraccording to him, there was no intention to kill so as to attractattempt to commit murder. He seeks reliance on the case of Genu {12} CRI APPEAL 130 OF 2004Yeshwant Divate (supra).14.Here learned trial Judge has held both accused guilty foroffence under Section 307 read with 34 of the IPC and under Section506 (II) read with 34 of the IPC. Admittedly and apparently, incidentseems to be a fall out of heated exchange of words that too onlybetween accused no.2 and PW6 Hemant. At the time of quarrel, onlyaccused no.2 was present in the Auditorium. But he left issuingthreats to see PW6 Hemant and returned with accused no.1 and theyboth returned that too getting armed with knives, which are deadlyweapons. 15.PW7 Dr.Hashmi, examining Doctor noticed incised wound onEpigaspic region and mid back on the person of PW6 Hemant. Doctortermed the injury to be grievous and to be by sharp weapon. Hereferred him to the Surgeon. This Doctor has also identified knifeand according to him, injuries are possible by articles 4. He furtherstated that patient would have succumbed to death had he not beenbrought to the Hospital and the injuries noticed by him was sufficientto cause death. In cross-examination he has denied injuries to be simple.There is mere failure to mention in the injury certificate regarding {13} CRI APPEAL 130 OF 2004injuries to be dangerous to life. There is no requirement for issuingsuch certification or remark. 16.PW9 Dr.Deshmukh, a Surgeon, who conducted operation isexamined at exh.49. According to him, patient was restless andserious and needed urgent surgery. Even he stated that injury wasgrievous and the patient might have succumbed to death if operationwould not have been conducted within 48 hours. Even he describedsecond injury to be grievous in nature. 17.Therefore, both medical experts are categorical about injuriesto be grievous in nature. 18.Taking into consideration the sequence of events, backgroundof the occurrence, circumstances in which incident took place, natureof article used and site of injury, this is a case, which squarely attractoffence under Section 307 of the IPC.The evidence of PW4 Venkatesh, informant and PW6 Hemant,injured shows that when the incident took place, the unknownperson accompanied with accused nos.1 and 2 was giving call tocause death of injured PW6 Hemant. Apart from this, PW6 Hemant,in his evidence at exh.35, stated that accused no.2 gave him threat tokill. Therefore, offence under Section 506 (II) also gets attracted. {14} CRI APPEAL 130 OF 200419.Perused the citation relied by the learned Counsel for theappellants. The facts in the case relied by the learned Counsel andthe facts in the case in hand are quite distinguishable. Therefore, theratio laid down in the said case cannot be made applicable in thepresent case. 20.I have gone through the judgment under challenge. In theconsidered opinion of this Court, there is correct appreciation of bothevidence as well as law. No illegality or perversity is brought to thenotice of this Court so as to interfere. Accordingly, I proceed to passfollowing order : ORDER Criminal Appeal No.130 of 2004 is dismissed. ( ABHAY S. WAGHWASE ) JUDGE 21.On pronouncement of this Judgment, learned Counsel for theappellants prays for six weeks time to surrender so as to enable himto approach the Hon’ble Apex Court.22.Learned APP strongly opposes the same. {15} CRI APPEAL 130 OF 200423.Considering the above request made by learned Counsel for theappellants, six weeks time is granted for the appellants to surrender. ( ABHAY S. WAGHWASE ) JUDGE SPT