Bombay High Court
Ujwal Edward Paris vs The State Of Maharashtra on 22 June, 2017
Author: A. M. Badar
Bench: A. M. Badar
206-APPEAL-953-2011-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.953 OF 2011
UJWAL EDWARD PARIS )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mrs.Nasreen Ayubi, Advocate for the Appellant.
Mr.P.H.Gaikwad-Patil, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 22nd JUNE 2017
ORAL JUDGMENT :
1 By this appeal, the appellant / convicted accused is challenging the judgment and order dated 10 th July 2009 passed by the learned Additional Sessions Judge, Greater Mumbai, in Sessions Case No.263 of 2009 thereby convicting him of the offence punishable under Section 326 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for 1 month.
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206-APPEAL-953-2011-J.doc 2 Briefly stated, it is the case of the prosecution that the appellant / accused and injured PW5 Vinod Yadav were friends. The appellant / accused used to reside in the vicinity of the flour mill where injured PW5 Vinod Yadav was working. The incident allegedly took place on 31st December 2008 at about 4 p.m. in the house located at Galli No.15, Shri Sai Dalit Seva Samiti, Andheri. As the appellant / accused Ujwal Paris and injured PW5 Vinod Yadav were friends, on that day, they indulged in a booze session. During the course of drinking liquor, injured PW5 Vinod Yadav questioned the appellant / accused Ujwal Paris as to why he had beaten his parents prior to two or three days. Upon that, the appellant / accused Ujwal Paris started quarreling with injured Vinod Yadav. During the course of that quarrel, the appellant / accused Ujwal Paris took one spade from the bathroom of the house and gave blow thereof on head of injured PW5 Vinod Yadav. Because of that blow, injured Vinod Yadav sustained bleeding injury and he was taken to Cooper hospital by his brother. avk 2/10 ::: Uploaded on - 30/06/2017 ::: Downloaded on - 28/08/2017 07:31:32 :::
206-APPEAL-953-2011-J.doc 3 PW1 Sangeeta Wakure was neighbour of the appellant / accused Ujwal Paris. On the basis of information received from mother of the appellant / accused, she lodged report Exhibit 8A of the incident with Police Station MIDC which has resulted in registration of Crime No.807 of 2008 under Section 307 of the Indian Penal Code against the appellant / accused.
4 During the course of investigation, the Investigating Officer inspected the spot of the incident which was house of the appellant / accused. Spot panchnama was drawn. Clothes of injured PW5 Vinod Yadav, so also that of the appellant / accused, came to be seized. Weapon of the offence came to be seized. Statement of witnesses were recorded and after routine investigation, the appellant / accused was charge-sheeted for the offence punishable under Section 307 of the Indian Penal Code. 5 In the course of trial, the prosecution has examined in all seven witnesses. Informant Sangeeta Wakure is examined as avk 3/10 ::: Uploaded on - 30/06/2017 ::: Downloaded on - 28/08/2017 07:31:32 ::: 206-APPEAL-953-2011-J.doc PW1. Panch witnesses to seizure of the iron spade is examined as PW2 . He is Kisan Babu Pawar. Panch witness to seizure of clothes of the informant is examined as PW3. He is Raju Gautam. Panch witness to seizure of clothes of the appellant / accused is examined as PW4. He is Jitu Babu Singh. Injured Vinod Yadav is examined as PW5. PW6 Dr.Saifullah is the Resident Medical Officer of Cooper hospital where injured PW5 Vinod Yadav came to be treated medically. PW7 Sarla Vasave, A.P.I. M.I.D.C. Police Station, is the Investigating Officer.
6 The defence of the appellant / accused was that of total denial. It was tried to be brought on record that in the booze session, the injured fell down under influence of the liquor and sustained head injury.
7 After hearing the parties, by the impugned judgment and order, the learned trial court was pleased to acquit the appellant / accused of the offence punishable under Section 307 of the Indian Penal Code by holding that the appellant / accused avk 4/10 ::: Uploaded on - 30/06/2017 ::: Downloaded on - 28/08/2017 07:31:32 ::: 206-APPEAL-953-2011-J.doc had not attempted to commit murder of PW5 Vinod Yadav. However, he was convicted of the offence punishable under Section 326 of the Indian Penal Code and came to be sentenced as indicated in the opening paragraph of the judgment. 8 I have heard Ms.Nasreen Ayubi, the learned advocate appearing for the appellant / accused. She vehemently argued that evidence of PW5 Vinod Yadav goes to show that he along with the appellant / accused had consumed lot of liquor on the day of the incident and there was quarrel between them. With the aid of material elicited from cross-examination of PW5 Vinod Yadav, Ms.Nasreen Ayubi, the learned advocate appearing for the appellant / accused argued that the appellant / accused cannot be said to be the author of injuries suffered by the injured Vinod Yadav. She further argued that panch witness PW2 Kisan Babu Pawar has turned hostile and even the injured had not identified the weapon of the offence. According to the learned advocate for the appellant / accused, evidence of PW3 Raju Gautam cannot be relied upon because he has admitted in cross-examination that he avk 5/10 ::: Uploaded on - 30/06/2017 ::: Downloaded on - 28/08/2017 07:31:32 ::: 206-APPEAL-953-2011-J.doc had signed one blank paper. This witness has also admitted that the paper in which clothes of the injured were wrapped was not produced before the court. With this, the learned advocate submitted that the impugned judgment and order of conviction cannot be sustained.
9 The learned APP supported the impugned judgment and order of conviction of the appellant / accused for the offence punishable under Section 326 of the Indian Penal Code. 10 I have carefully considered the rival submissions and also perused record and proceedings including oral as well as documentary evidence adduced by the prosecution. The appellant / accused has been convicted of the offence punishable under Section 326 of the IPC for voluntarily causing grievous hurt to PW5 Vinod Yadav by means of a dangerous weapon i.e. a spade. The term "grievous hurt" is defined in Section 320 of the Indian Penal Code and fracture or dislocation of a bone is included in the terms "grievous hurt."
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206-APPEAL-953-2011-J.doc 11 PW5 Vinod Yadav is an injured witness. The case in hand is that of a sole accused. After the incident of assault on him, PW5 Vinod Yadav was admitted at Cooper hospital, Mumbai, where PW6 Dr.Saifulla had treated him. As per version of PW6 Dr.Saifulla, upon medical examination of PW5 Vinod Yadav on 31 st December 2008, he noticed the following injuries on head of PW5 Vinod Yadav :-
1. CLW admeasuring 8 x 6 cm on left occipital area extending into the neck caused by sharp object.
2. CLW admeasuring 3 x 1 cm 3 in number on parietal area of skull caused by sharp object. Both the injuries were fresh.
As seen from evidence of PW6 Dr.Saifulla, the injured was subjected to City Scan and PW6 Dr.Saifulla deposed that after perusal of the report of the City Scan, it was revealed that injured PW5 Vinod Yadav had suffered fracture of right occipital bone extending anteriorly to the right side mastoid. Evidence of PW6 Dr.Saifulla is duly corroborated by contemporaneous documentary avk 7/10 ::: Uploaded on - 30/06/2017 ::: Downloaded on - 28/08/2017 07:31:32 ::: 206-APPEAL-953-2011-J.doc evidence produced on record by the prosecution at Exhibit 17 and Exhibit 18. The report of City Scan of bone of PW5 Vinod Yadav reveals that he had suffered undisplaced fracture of the right occipital bone. As such, the prosecution has established that injured PW5 Vinod Yadav had suffered fracture injury to his head. 12 Now let us examine whether the prosecution has established that it was the appellant / accused who was the author of the fracture injury to head of PW5 Vinod Yadav. Injured PW5 Vinod Yadav has stated that while he and the appellant / accused were drinking liquor, he questioned the appellant / accused as the appellant / accused had earlier beaten his own parents. Upon that, as seen from evidence of PW5 Vinod Yadav, the appellant / accused started quarreling with him, took out a spade and gave blow thereof on his head causing bleeding injury. There is nothing in cross-examination of injured PW5 Vinod Yadav to disbelieve his version. Suggestions that he suffered injury because of his fall under intoxication is categorically denied by this witness. As such, there is no reason to disbelieve version of the avk 8/10 ::: Uploaded on - 30/06/2017 ::: Downloaded on - 28/08/2017 07:31:32 ::: 206-APPEAL-953-2011-J.doc injured PW5 Vinod Yadav in respect of injuries suffered by him and the author of the injury.
13 Evidence of Investigating Officer PW7 Sarla Vasave, A.P.I., shows that she had seized the weapon of the offence by preparing panchnama. No doubt, panch witness to this seizure panchnama namely PW2 Kisan Babu Pawar has turned hostile, but there is nothing in cross-examination of Investigating Officer to doubt seizure of the spade from the spot by her. The seized spade was duly identified by the injured while in the witness box. Though the handle of the spade was found missing, nothing boils on that.
14 Evidence of the Investigator shows that clothes of the appellant / accused were seized on 1 st January 2009. PW4 Jitu Babu Singh has also supported this seizure panchnama at Exhibit
40. There is no material on record to disbelieve this seizure. Seized clothes, as seen from the evidence of the Investigator, were subjected to chemical analysis. Chemical Analysis report at avk 9/10 ::: Uploaded on - 30/06/2017 ::: Downloaded on - 28/08/2017 07:31:32 ::: 206-APPEAL-953-2011-J.doc Exhibit 24 shows that seized clothes of appellant / accused were stained with human blood. The C.A.Report at Exhibit 25 shows that seized spade was having human blood of "A" group. 15 To conclude, evidence of the prosecution duly establishes that it was the appellant / accused who assaulted the injured PW5 Vinod Yadav and had caused grievous hurt to him. Accordingly, he is rightly convicted of the offence punishable under Section 326 of the Indian Penal Code. The learned trial Judge has maintained proportionality in imposing the sentence. As such, no infirmity can be found in the impugned judgment and order.
16 In the result, the appeal fails and the same is dismissed.
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