High Court
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-1- Cri.Appeal.754.2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 754 OF 2003Bhimrao S/o. Maroti Shisode, Aged : 32 years, Occu. : Agril.,R/o. Hivra, Tq. Phulambri,Tq. Kannad, Dist. Aurangabad… Appellant (Orig. Accused No.1)VersusThe State of MaharashtraPolice Station Pishor, Tq. Kannad, Dist. Aurangabad.… Respondent(Orig. Complainant)…Mr. Yogesh B. Bolkar h/f. Mr. B. K. Jadhav, Advocate for Appellant.Mr. Rajdeep D. Raut, APP for Respondent – State.... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 04th JULY, 2024PRONOUNCED ON : 10th JULY, 2024JUDGMENT : 1.In this appeal, there is challenge by convict to thejudgment and order dated 30.09.2003 in Sessions Case No. 137 of2002, by which appellant stood convicted for offence punishableunder section 323 of IPC and is directed to suffer one monthrigorous imprisonment and to pay fine. PROSECUTION STORY IN TRIAL COURT IN NUTSHELL IS AS UNDER 2.First wife of PW6 Subhash, namely, Manda had affair
Legal Reasoning
-2- Cri.Appeal.754.2003with accused appellant. Injured Arjun had seen both of them incompromising position. On 09.11.2001, Arjun was intercepted byappellant Bhimrao and Keshav near house of Shankar. Accordingto prosecution, appellant gave axe blow on the head of Arjun,whereas, accused Keshav gave blow with wooden handle. Arjunran to save himself i.e. in the house of Shankar Ganpati and lateron approached police, lodged report against present appellant andKeshav. PW9 Dr.Gurwale examined and treated him. On his reportPW8 PSI Kendre carried out investigation and charge-sheeted bothaccused. 3.Both accused were made to face trial before IIIrd Ad-hocAdditional Sessions Judge, Aurangabad, who on appreciating theoral and documentary evidence, reached to a finding thatprosecution failed to make out case against Keshav, however,charges for commission of offence under section 323 of IPC asagainst present appellant Bhimrao stands proved and accordinglyhe was held guilty by judgment and order date 30.09.2003. Said judgment and order is now questioned by way ofinstant appeal.SUBMISSIONSOn behalf of Appellant :-4.Criticizing the judgment, learned counsel for appellant -3- Cri.Appeal.754.2003pointed out that, there is improper appreciation of evidence.Findings are not supported by sound reasons and are moreoveragainst the evidence as well as law. He pointed out that, in sameoccurrence, accused Keshav has been acquitted, however,appellant Bhimrao alone is held guilty. He would strenuouslysubmits that, admittedly there is previous enmity and as suchthere is deliberately false implication. That, only close relatives areexamined. According to him, thought seizure is shown, there is nosupportive forensic evidence or scientific evidence. Resultantly, itis his submission that, case has not been proved beyond reasonabledoubt, he prays to indulge by allowing the appeal. In support of above submissions, learned counsel seeksreliance on the following rulings :- 1]Boini Mahipal and Anr. v. State of Telangana, (2023) 8 SCC 398 2]Nand Lal and Others v. State of Chhattisgarh, (2023) 10 SCC 4703]Chhote Lal v. Rohtash and Ors., (2023) SCC OnLine SC 16754]Dalip Singh v. State of Punjab, (1953) 2 SCC 365]Santosh alias Bhure v. State (G.N.C.T.) of Delhi, 2023 SCC OnLine SC 5386]Eradu v. State of Hyderabad, 1955 SCC Online SC 98 -4- Cri.Appeal.754.2003On behalf of Respondent – State :- 5.In answer to above, learned APP, who supported thejudgment submitted that, there is injured witness account.Independent witness, who gave water and other independentwitnesses, who were around and had seen the occurrence, havedeposed and categorically defined role played by appellant. That,medical evidence supports complainant’s version and independenteye witness account. That, there is recovery and as such findingcogent, reliable and trustworthy evidence, learned trial Judgerightly convicted appellant for section 323 of IPC and for want ofmerits, he prays to dismiss the appeal. EVIDENCE ON RECORD6.PW1 informant Arjun in his testimony at Exh.9, statedthat, he was passing over the house of Shankar Ganpati, at thattime, accused Bhimrao and Keshav abused him. Appellant Bhimraogave axe blow on right side of his head. Accused Keshav gavewooden handle blow on his right wrist and back. He ran in thehouse of Shankar, who offered him water and therefore heapproached police and lodged report at Exh.10. PW2 Shankar in his testimony at Exh.11 stated that,incident took place at around 7:00 p.m. to 8:00 p.m. while he wasstanding on the platform of his house, that time, he saw Keshav -5- Cri.Appeal.754.2003and Bhimrao beat Arjun. Bhimrao gave axe blow on the head andKeshav hit Arjun on the wrist. He personally saw the incident. PW3 Kachru testified that, in his presence police drewspot panchanama at Exh.13 and also seized clothes of Arjun videpanchanama at Exhs.14 and 15. PW4 Digamber deposed that, while he was passingtowards the road to attend Haripath, he saw Bhimrao and Keshavobstructing Arjun and assaulting him. According to him, incidenttook place in front of house of Shankar. Bhimrao gave blow on thehead of Arjun with axe and Kehsav gave blow of stick and both ranaway. PW5 Syed Babbu, pancha to memorandum of disclosureat the instance of Bhimrao and seizure panchanama at Exhs.19and 19A respectively and in his presence Keshav gave alsomemorandum of disclosure and handed over stick. The saidpanchamas at Exhs.20 and 20A, respectively. PW6 Subhash, brother of Arjun stated that, his firstwife Mandabai had illicit intercourse with appellant Bhimrao andthey had illicit relations. His brother Arjun had seen them incompromising position and on that count his brother was beaten. -6- Cri.Appeal.754.2003 PW7 PSO Pundlik Chavan, who noted report at Exh.10. PW8 PSI Vithal Kendre is the Investigating Officer, whonarrated all steps taken by him during investigation till filing ofcharge-sheet. PW9 Dr. Vaijinath Gurwale and PW10 Dr.Sureshchandra Chavan, Medical Officers, who examined andtreated Arjun and issued medical certificate and papers.ANALYSIS7.Learned trial court acquitted Keshav for want ofsufficient evidence, but convicted present appellant Bhimrao onlyfor offence punishable under section 323 of IPC. Fundamentalobjection of learned counsel for appellant is that, firstly, there isonly interested witness account. Secondly, there was previousenmity and hence there is false implication. Thirdly, no scientificevidence. 8.On critical appreciation of available evidence, it isemerging that, PW1 informant Arjun has categorically stated that,on that day, while he was in front of house of Shankar, bothaccused obstructed him. Present appellant Bhimrao gave blow withaxe and Keshav gave blow with wooden handle on his wrist. He ranin the house of Shankar, who offered him water. -7- Cri.Appeal.754.2003 On visiting his cross, above occurrence has not beendislodged or rendered doubtful, neither there are any materialomissions or contradictions.9.Shankar PW2 is a witness, who claims that, while hewas on the platform of his house, he saw the occurrence. He alsodefined role of both the accused. Similarly, PW4 Digamber claimsto have seen the occurrence. He too has attributed specific role toBhimrao and Keshav. He also asserted that he personally saw theassault. He in fact claims to have accompanied injured to the policestation as well as hospital. Their testimonies to the above extentare not rendered doubtful in spite of lengthy cross. Therefore,there is sufficient, reliable and trustworthy evidence regardingoccurrence. 10.Above oral account is also finding support from twodoctors PW9 Dr. Vaijinath Gurwale and PW10 Dr. SureshchandraChavan. They have described the injuries with measurement.However, only Arjun has been examined and he has receivedtreatment at the hands of PW9 Dr. Gurwale, who has also issuedinjury certificate at Exh.33 on same day. PW10 Dr. Chavan alsoexamined Arjun and was treated after his admission in surgicalward. Therefore, there is supportive medical evidence. That, thereis no medical evidence as regards to Keshav is concerned. There is -8- Cri.Appeal.754.2003overwhelming evidence about bodily injury suffered by Arjun.Charges for infliction of injury as regards to Arjun are not cogentlyestablished.11.Learned counsel raised above objection. Merelybecause witnesses are near and dear once, their testimonies cannotbe discarded. Only precaution to be taken is that their testimoniesshould be cautiously scrutinized. Here on doing so, there is noreason to disbelieve that they had witnessed the occurrence. Theircross does not suggest they falsely deposing or they to be not eyewitnesses. As regards objection of previous enmity is concerned,injured Arjun had stated that, since previously there were threats.He had seen appellant in compromising position with first wife ofhis brother, who is also examined here as PW6 Subhash. Therefore,there is reason for mounting assault. Even otherwise, enmity is adouble edged weapon. Here, it is not demonstrated that there isfalse implication. Consequently, above ground and objection doessustain. As regards to objection of no scientific evidence, it isfairly settled that even in absence of scientific evidence, whenthere is other convincing trustworthy evidence, case of -9- Cri.Appeal.754.2003prosecution can be accepted here. There is both, injured witnessaccount as well as direct evidence, to which medical evidence islending support. Therefore, mere failure of prosecution to adduceCA report, is not sufficient to discard or doubt prosecution version.12.Learned counsel for appellant specifically pointed outthat there is sentence of one month and appellant was alreadybehind the bars for 17 days. That, now relations are restored tonormalcy and harmony and both are residents of same village.Statement is made across the bar that, parties have buried theirdifferences. For all above reasons, he prays to let off appellant onalready undergone sentence.13.Learned APP objected for the same. 14.Here, prosecution has succeeded in establishing thecharges by adducing clear and cogent evidence. However, takinginto account the above submissions and in the totality of thecircumstances in which incidence took place, coupled with the factthat parties are residents of same locality and their relationshaving been restored to normalcy, though conviction and fineamount are confirmed and maintained, in view of above,substantive sentence is reduced to period already undergone ofaround 17 days. The judgment and order of trial court is required -10- Cri.Appeal.754.2003to be modified to that extent only. Hence, I proceed to pass thefollowing order:ORDERI.The conviction of the appellant Bhimrao S/o. MarotiShisode for offence punishable under section 323 ofIPC by learned III Adhoc Additional Sessions Judge,Aurangabad dated 30.09.2003 in Sessions Case No.137 of 2002 is affirmed and hereby kept intact.HOWEVER II.The sentence awarded to the appellant to sufferrigorous imprisonment for one month is herebymodified as under :“The appellant Bhimrao S/o. Maroti Shisode issentenced to suffer imprisonment alreadyundergone by him.”III.Bail bond of appellant stands cancelled.IV.It is clarified that rest of the operative order passed bythe trial court is maintained.V.The appeal is disposed of in the above terms. (ABHAY S. WAGHWASE, J.)Tandale