Bombay High Court
Sk. Ibrahim @ Sk. Shadulla Sk. Maulana & ... vs State Of Mah. Thru. Police ... on 12 September, 2017
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL.481.03\
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 481/2003
Sukhdeo s/o Ganpat Selokar
Aged about 48 years
R/o Kurza, Police Station:Brahmapuri
Dist. Chandrapur. ... APPELLANT
v e r s u s
The State of Maharashtra
Through Police Station Officer
Police Station,Bramhapuri
Dist. Chandrapur ... RESPONDENT
...........................................................................................................................
Shri S.V. Sirpurkar, Advocate for the appellant
Shri N.H. Joshi, Additional Public Prosecutor for respondent-State
............................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED : 08th September, 2017
ORAL JUDGMENT:
The appellant/accused has preferred the present Appeal against the judgment and order dated 17.06.2003 in Sessions Case No.191/1996 delivered by the learned Additional Sessions Judge, Chandrapur, thereby convicting the appellant under Section 307 of the Indian Penal Code and sentencing him to suffer R.I. for three years and to pay a fine of Rs. 3000/-, in default, to suffer RI for six months.
2. The prosecution case in nutshell can be stated thus :
Complainant-Kusumbai w/o Gangadhar Kawale (PW10) is the ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 2 resident of village Kurza Kanhar-Shivar. The appellant-Sukhdeo ( hereinafter referred to as " the accused") is also the resident of the same village and he is the real brother of the complainant. The mother of the complainant was residing with her. PW10 has two more brothers, namely, Rameshwar and Digambar. After death of their father, the agricultural land was partitioned and was equally distributed amongst mother-Manabai and her children. PW10 was allotted one acre of land. On the date of the incident i.e. 29.7.1996, the complainant went to her field for carrying out weeding operation. At about 11 or 11.30 a.m. PW 10 said to her sister-in-law Ranjana (wife of the accused) as to why she had quarreled with her mother by hurling certain allegations against her, on the previous day. On this, Ranjana sent her daughter who was with her for calling the accused to the field. The accused arrived at the field at about 1.00 p.m. At that time, the complainant was present in her field. It is the case of the prosecution that the accused was carrying one suri (big knife/dagger) with him and suddenly attacked PW10 by blows of suri on her head, hands, left cheek, near elbow of her left hand lower portion of her left thigh and right wrist. As a result, she fell down. PW10 received serious injuries on her body. The accused then sat on the person of PW10 and tried to strangulate her and he pulled her hair and gave kick blows. There were few ladies working in the adjacent filed. Nobody came to the rescue of PW10. Out of desperation, PW10 said to the accused if he desired to take her life he should do so once for all. At the relevant time, one Anil Diwate arrived at the ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 3 place of the incident and thereafter the accused allowed the complainant to leave that place. Thereafter, Anil Diwate took PW10 to her house and from there a labourer, by name, Laxman Tikale took her to the hospital and admitted her there.
3. At the relevant time, PSI D.R. Narnaware was attached to Police Station, Bramhapuri, as PSI. In the afternoon, he received a phone call from one Ajay from Ashok Bhaiyya's Rice Mill that one woman had been attacked by means of a suri and she was being taken to the hospital. On receipt of the said message, PW13-Narnaware immediately along with his staff proceeded to Rural Hospital, Bramhapuri. He recorded the statement of PW 10 and made enquiry with the Doctor as regards the injuries caused to her. The doctor examined PW10 and issued his injury certificate (Exh.29). PW 13 then registered the offence vide Crime No.82/1996 for offence punishable u/s 307 IPC. On the next day i.e. 30.7.1996, he recorded the panchnama of place of the incident. He took charge of the clothes of the victim PW10 under Panchnama (Exh.24). He took the blood samples of the victim. On the same he he arrested the accused. The blood samples of the accused were taken under Panchnama (Exh.23) on 30.7.1996. In the presence of Panchas the accused made a voluntary statement and showed his willingness to point out the place where he has concealed the suri. Accordingly, memorandum panchnama was drawn (Exh.18). The accused then pointed out one agricultural field in village Kurza. He took the police and the panchas to one Dhura in the field from ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 4 which he took out one suri concealed there. The said suri was taken charge by the police under panchnama (Exh.19)-suri article-1. PW13 recorded the statements of the witnesses. On completion of investigation he filed charge sheet against the accused in the Court of learned Judicial Magistrate First Class. The case was committed to the Court of Sessions. The learned trial Judge after conducting the trial, on analysis of the evidence and hearing both the sides, convicted the accused, as aforesaid. Hence, the present Appeal.
4. I have heard Shri S.V.Sirpurkar, the learned counsel for the appellant and Shri N.H. Joshi, the learned Additional Public Prosecutor. I have carefully gone through the record of the case.
5. Shri Sirpurkar, vehemently argued that the learned trial Judge has passed the illegal and perverse order, inasmuch as he has not considered the improvements in the testimony of the victim PW10-Kusumbai, who is the sole eye witness to the incident. He further contended that the testimony of PW10-Kusumbai does not inspire confidence as such and, therefore, it cannot be said that the prosecution has proved that it was the accused who assaulted the victim PW10. He pointed out that the statement of the victim was read over to her by the learned Public Prosecutor prior to entering into the witness box and such testimony of the victim should not be accepted by this Court. It is further stated that the prosecution has failed to examine the material witness-Bhagwant to whom PW 10 has referred in her complaint. He further submitted that even the recovery of the weapon has not been established by ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 5 the prosecution as the said seizure of the weapon cannot be termed as discovery u/s 27 of the Evidence Act, as it was embedded in the dhura of the field, as as per the version of PW10. Shri Sirpurkar, submitted that such recovery of the weapon cannot be said to be at the instance of the accused and the recovery of the weapon itself is as such doubtful. He further pointed out that no report of the said weapon was sought from the Medical Officer as to whether the injury received by the victim can be caused by the said weapon. It was submitted that assuming the accused is the author of the injuries caused to the victim, in that case, it does not attract the provisions of section 307 of IPC.
6. Per contra, Shri N.H.Joshi, the learned A.P.P. contended that the discrepancies pointed out by the defence in the testimony of the victim are minor discrepancies which do not go to the root of the case at all. According to him, the learned trial Judge has rightly come to the conclusion that the sole testimony of the PW10 is reliable, cogent and trustworthy and, as such, convicted the accused.
7. It is well-settled by now that the testimony of the sole eye witness can be relied upon provided it is reliable, cogent and trustworthy. It is always prudent to find some corroboration to the testimony of the solitary witness. It will be relevant to refer to the evidence of PW 10 who is the victim of the assault as well as the complainant in the instant case.
8. According to PW10-Kusumbai, the accused is her younger ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 6 brother. The incident took place about six years back. It was Monday. On the day of the incident, she went alone to the field of her mother at Kurza for weeding operation in the field. The agricultural field of the accused is adjacent to the dhura of the field of her mother. At about 11 to 11.30 am, the wife of the accused, namely, Ranjana along with 4 to 5 women were proceedings towards the Dhura to the field of accused. At that time, she asked Ranjana, as to why she had quarreled with her mother on the previous day. Thereafter Ranjana sent her daughter to the house for calling the accused- Sukhdeo. At about 1.00 p.m. the accused arrived at the field where PW10 was working and suddenly inflicted two blows of suri on her head, as a result she fell down on the ground and raised her both the hands in defence. The accused gave blows of suri on both her hands, neck, waist portion and her thigh. Then the accused has caught hold of her hair and said that he would throw her into the well. The accused then dragged by pulling her hair. The accused then gave blows and said to her that he would kill him "Janse marto". PW 10 then asked the accused to give a glass for water, however he refused and abused her filthily. Thereafter one Bhagwant arrived at that place. He made her to sit on the dhura. He offered water to her. Thereafter accused Sukhdeo ran away and Bhagwant also disappeared. PW10-Kusumbai stated that Sukhdeo fixed the suri into dhura and he went towards his wife. Thereafter Anil Diwate (PW6) arrived at that place. PW 10 requested him to take her to home. He wrapped up her saree around her, tie dupatta over her ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 7 head and brought her on his back up to the road and then making her ride his bicycle brought her home. PW10-Kusumbai was then taken to Government Hospital at Brahmapuri by one Tikale. She was examined by Medical officer at that place, who referred her to Nagpur. The police recorded her statement. PW10 described the suri carried by the accused as half-hand long. She stated that it has a handle and the blade is about 4 feet wide which comes to 2.5 inches to 3 inches. PW 10 identified the suri (article-1) and said that suri means sword, which indicates that there is no discrepancy as such in the weapon identified by her.
9. PW10-Kusumbai was subjected to exhaustive cross-examination. It was suggested to PW 10 that on the date of the incident a quarrel took place between her and Ranjana and there was scuffle between them. PW 10 admitted the said suggestion. It was further put up to PW10 that in the said scuffle she ran after Ranjana with a sickle in her hand and Ranjana suffered injury at her hands by the said sickle. PW10 denied the suggestion put up by the defence to the effect that in the said scuffle she ran away towards Ranjana with a sickle in her hand, in the said scuffle Ranjana suffered injury at her hands and she herself also suffered injury due to the said sickle. PW 10 denied that because of the injury Ranjana started shouting loudly and in order to save Ranjana Sukhdeo came on the spot. The testimony of PW10 indicates that there was a quarrel as well as scuffle between PW10 and Ranjana. Interestingly, it was suggested to PW10 that because of the said ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 8 injury, Ranjana started shouting loudly and Sukhdeo (accused) came to the spot for saving Ranjana. The said suggestion confirms the presence of the accused at the the place of the incident. Few improvements were pointed out in the statement of PW 10 to the effect that she raised both her hands in defence and that the accused gave a blow of suri on her neck. The accused dragged her by pulling her hair up to 50 to 60 feet towards the well. PW 10 improved her statement by saying that she asked accused to give her a glass of water and thereupon the accused filthily abused. An improvement is also pointed out in the statement of PW10 that thereafter Bhagwant arrived at the spot and made her to sit on dhura and offered her water and after that Bhagwant disappeared. In my opinion, the said improvement is not relevant as such because Bhagwant has not been examined by the prosecution. One more important improvement was pointed out in the version of PW10 that Sukhdeo fixed suri into dhura. PW 10 also made an improvement by saying that Anil Diwate helped her to wrap up the saree, tie dupatta over her head and he bought her on his back.
10. On careful scrutiny of the testimony of the victim it is noticed that the discrepancies do not go to the root of the matter and shake the basic version of the victim, when all the probability factors are in favour of the version narrated by PW10. It is significant to note that in the testimony of victim itself, it has come on record that the victim was carried to the hospital by one Tikale and her complaint was recorded in the hospital which is at ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 9 Exh. 47.
11. The learned counsel for appellant, Mr.Sirpurkar, placed reliance upon the judgment in the case of Suresh Ashtankar vs. State of Maharashtra reported in 2015 All MR 4243 wherein the Division Bench of this Court relied upon the judgment of the Single Bench of this Court, reported in 2007 All MR (Cri) 352, wherein it is observed, "32. .................There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by police. It would not be permissible for such witness to strealthily refresh his memory before entering the court and deposing about the entire evidence giving minute details as if he was reeling them out from his memory. Therefore, the objection to the reliability of evidence of PW2-Prabhakar taken by the learned Counsel for the appellant is valid."
In the instant case, the statement was allegedly read over by the 'Public Prosecutor' as per the testimony of PW10, recorded in English language. Whereas the testimony of victim which was recorded in vernacular, the words 'Public Prosecutor' are missing. It creates a doubt regarding the Public Prosecutor reading over the statement to the victim prior to recording her evidence.. In the above-cited case, the witness was read over his statement ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 10 by police prior to recording his evidence and he was told to tender his evidence as per his statement. In the instant case, it is not proved beyond reasonable doubt, whether the Public Prosecutor read over the statement to the victim prior to her stepping into the witness box. Moreover, considering the improvements and the embellishments in the testimony of the victim, it does not appear that she was tutored.
12. The testimony of the victim is in consonance with the contents in the FIR (Exh.47), which was lodged immediately and corroborated on all material particulars. The accused is the real brother of victim. There was no reason for the victim to falsely implicate her real brother in this case. No doubt, it is brought on record that there was scuffle between Ranjana and the victim, however there is no convincing evidence on record to show that during the said scuffle, victim was carrying sickle and she received injury by means of sickle. PW10-victim specifically denied the said suggestion given to her. The defence has not examined any witness in support of its case. Thus, PW10 is found to be a reliable and trustworthy witness.
13. The testimony of PW4-Ajay Bhattad, indicates that when he was working as a Manager of the Rice Mill of one Ashok Bhaiyya at Kurza, one mill worker informed him about the incident of assault and he requested him to inform the same to the Police Station telephonically. Accordingly he made a phone call to the Police Station, Bramhapuri and gave information about the incident which occurred at Kurza. Further, testimony of PW13-Narnaware ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 11 (PSI) shows that at the relevant time, PSI Dhanraj Narnaware was posted at Brahmapuri. In the afternoon, he received a phone call from Ashok Bhaiyya's Rice Mill at Kurza that one woman had received stab injury of suri and that she was being taken to the hospital. Therefore, he immediately reached the Rural Hospital, Brahmapuri along with staff members. He recorded the statement of the victim and obtained her thumb impression. On the basis of the said report (Exh.47), PW 13 registered the offence.
14. In order to prove the injuries sustained by the victim, the prosecution has relied upon the testimony of Medical Officer PW7-Dr. Makarand Pimpalkar, who issued the medical certificate (Exh.29). PW7 examined the victim and found the following injuries :-
"1. Incised wound on anterior aspect of right forearm of size 4"
x 1/4' and 1/4 deep.
2. Incised wound on head of size 4" x 1/4" and bone deep at parietal bone region, just left to midline.
3. Incised wound of size 2"x1/4" and 1/4" deep on medial aspect of thumb of upper limb, medial aspect on right side.
4. incised wound of size 2" x 1/4" and 1/4" deep on posterior aspect of left forearm.
5. Incised wound with suspected compound fracture of left hand fingers.
6. Incised wound on lateral side of left thigh on lower part of it of size 3" x 1/4" and 1/4" deep.
7. Suspected head injury, contusion or compression. " ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 :::
CRI.APPEAL.481.03\ 12 PW 7-Dr.Pimpalkar, opined that the injuries were grievous in nature and could have been caused by sharp and hard weapon or instrument. On seeing article-1 sharp and hard object, he opined that the above-referred injuries can be caused by the said article, it being a sharp and hard object.
15. The same Medical Officer also examined the accused and found the following injury :
"Abrasion on right index finger of upper limb of size 2" x1" on lateral aspect of it."
PW7 opined that the said injury was simple in nature. He issued the medical certificate to that effect which is at Exh.30. The Medical officer stated that a query was made to him in respect of one sword sent to him through Police constable and he opined that the wound described in Exh.29 could be caused by the said sword. The said report is at Exh.31. When a question was put to the Medical Officer as to why he has termed the injuries as "grievous", he replied that grievous hurt or grievous injury has not been defined anywhere in the medical jurisprudence. However it is defined in Modi's Jurisprudence. He further opined that all those injuries were grievous in nature for the reason that they were all incise wounds. He further admitted that he had not made mention in Exh.29 that any injuries described therein were such as endangering the human life. Similarly, he admitted that the nature of the injuries i.e. grievous or simple is also not mentioned in Exh.29. The Medical Officer also admitted that no query to the effect that the article-1 is used by anybody for hitting other persons, the injury like one mentioned in ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 13 Exh. 30 can be caused or not was made to him by PSO. However in this context,the Medical Officer has stated that though the above-referred injuries can be caused by article-1 being sharp and hard object. The testimony of Medical Officer, no doubt, does not throw any light on the aspect whether the injuries sustained by the victim was sufficient to cause death or not. The Medical Officer has, however, termed the injury as grievous. It is significant to note that though the Medical Officer has not given a specific opinion that the injuries were sufficient to cause death, however when asked in the cross- examination, he stated,"it is not true to say that as the injuries were not dangerous to human life, I omitted to make such mention in Exh.29". As regards the injury caused to the accused, it appears that he had received those injuries at the time of incident.
16. The Hon'ble Apex Court in the case of State of Maharashtra vs. Balram Patil, reported in 1983 CRI.L.J. 331 has, unequivocally observed that,
9....... To justify a conviction u/s 307 it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 14 may be case in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
17. So far as the contention of Mr.Sirpurkar that witnesses who were at the place of incident are not examined by the prosecution, it may be noted here that most of the eye witnesses have turned hostile. No one intervened when the accused assaulted the victim who was a lady, aged about 46 years. Normally, it is noticed that no one wants to interfere in the family disputes. So also there is no impediment in relying upon the sole testimony of the victim if it is found to be trustworthy. It would be advantageous to take recourse of the decision reported in the case of Baleshwar Mahto and another vs. State of Bihar and another, reported in (2017) 3 SCC 152, wherein the Hon'ble Apex Court observed that, "the testimony of injured witness is accorded a special status in law. It is as a consequence of fact that injury to the witness is an inbuilt guarantee of his presence at the scene of crime and because the injured witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of offence. Thus, deposition of ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 15 injured witness should be relied upon unless there are strong grounds for rejection of his evidence on basis of major contradictions and discrepancies therein."
In Para no.11, the Hon'ble Supreme Court has observed as under:
"11....................How medical evidence is to be collated with ocular evidence is described by this Court in Kamaljit Singh v. State of Punjab: (2003) 12 SCC 155 in the following fashion :
8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter.
Unless medical evidence in its term goes so far as to complete rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See Solanki Chimnbhai Ukabhai v. State of Gujarat (1983) 2 SCC 174). The position was illuminatingly and exhaustively reiterated in State of U.P. vs. Krishna Gopal :(1988) 4 SCC 302. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High court cannot in this case be found fault with for its well-merited interference."
The testimony of the victim corroborates with the medical evidence.
18. Admittedly, there was a quarel between the victim and her sister- ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 :::
CRI.APPEAL.481.03\ 16 in-law. Her sister-in-law sent her daughter to call the accused. On this the accused came at the place of the incident with the weapon i.e. Suri (sword- article-1) and thereafter the accused assaulted the victim which indicates that the accused had an intention to commit murder of his sister. So also it has also come on record that there was a property dispute between the brother and sister. Thus, if the intention is present coupled with the overt act in execution of such intention then, in my opinion, the offence u/s 307 IPC is clearly made out. In such an offence even it is not necessary that bodily injury capable of causing death should have been inflicted. The intention of the offender can be logically deduced from the imposing circumstances, such as, the weapon used by the accused, blow given on the vital part of the body, nature of the injury etc. In this case, the blow was given on vital part of the body i.e. head of the victim and the weapon which was used by him was a suri (sword) which caused injury to the victim.
19. So far as the discovery of weapon is concerned, according to the victim, the accused had after the incident, embedded the said weapon was seized. The dhura of the field. According to the Investigating Officer, the accused made voluntary statement that he is ready to point out the place where has concealed the said weapon. Accordingly, the accused took out the said weapon which was thrusted in the dhura and thereafter the weapon was seized. The investigating officer has conducted the panchnama in that regard.
20. Mr. Sirpurkar, the learned counsel vehemently argued that the ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 17 said recovery cannot be termed as discovery as such, as the said weapon was not concealed and even the victim was aware of the fact that the weapon was embedded in the dhura. There is certainly some substance in the contention of Mr Sirpurkar and the said recovery cannot be termed as discovery as such u/s 27 of the Evidence Act. The learned counsel Shri Sirpurkar contended that the description of the weapon is not mentioned in the seizure panchnama (Exh.19) which was recovery at the instance of the accused. Similarly, the Doctor has not given a specific opinion that the injury was sufficient to cause death so also there is nothing on record to show that for how many days the victim was hospitalized. In these circumstances the Court can come to the conclusion that there was no intention of the accused to commit murder of his sister but his intention was, at the most, to hurt her. However, for the reasons discussed above I am not convinced that the offence would fall in Section 324 of the IPC but it would come under the provisions of Section 307 IPC.
21. In support of his contention, Mr. Sirpurkar placed reliance upon Mahendra Pratap Singh vs. State of Uttar Pradesh, reported in (2009) 11 SCC 334, more particularly, paragraph No.52, which reads thus:
PW Chhotey Lal Tripathi, Inspector dispatched the rifle and bullets to the ballistic expert for their comparison. It is the the evidence of PW 11 Radhey Shamsingh, Firearm Expert, that he examined Rifle No. 243 of .302 bore which was deposited with the Scientific Branch of the Forensic Science Laboratory on 7.4.1975 by Constable Ram ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 18 Chhabile, It is clear from the evidence of the ballistic expert that the rifle of .302 bore was sent to him for scientific analysis and not rifle of .315 bore which allegedly was used by the appellant at the time of commission of the offence and which later on was handed over to Head Constable Sukhram Singh, who sealed the same in the police station This discrepancy and inconsistency in regard to the use and recovery of the weapon of offence from the possession of the appellant is very vital to discard the truthfulness of the prosecution case."
In the instant case, the weapon which was used in the offence was identified by the victim in Court. Similarly, the said weapon was examined by him and he opined that the wound described in Exh.29 would be caused by the sword.
22. Thus, the testimony of the victim which is found to be reliable one, implicates the accused in the offence punishable u/s 307 of IPC. The injury caused to the victim on vital part of the body i.e. head with a dangerous weapon i.e. Sword, confirms that the accused had an intention to kill his sister due to property dispute.
23. In view of the facts and circumstances of the case and considering the law laid down, the offence against the appellant is proved. The trial court has rightly convicted the accused under section 307 of the IPC. Hence the following order:-
ORDER:
i) Criminal Appeal No. 481/2003 is dismissed. ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 ::: CRI.APPEAL.481.03\ 19 ii) The judgment and order dated 17.06.2003 in Sessions Case No.
191/1996 delivered by the learned Additional Sessions Judge, Chandrapur, thereby convicting the appellant under Section 307 of the Indian Penal Code and sentencing him to suffer R.I. for three years and to pay a fine of Rs. 3000/-, in default, to suffer RI for six months, is maintained.
iii) The appellant who is on bail, shall surrender to his bail bond, within four weeks, to serve out the remaining part of the sentence.
iv) The muddemal property, if any, be destroyed after the appeal period is over.
JUDGE sahare ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:38:57 :::