Bombay High Court
Lomesh @ Gomeshwar S/O Kawaduji ... vs The State Of Mah. Thr. P.S.O., P.S. Mouda on 8 March, 2019
Author: V.M.Deshpande
Bench: V.M.Deshpande
Judgment
apeal58.2011
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.58 OF 2011
1. Lomesh @ Gomeshwar s/o Kawaduji
Kamatkar, aged about 19 years,
Occupation : Nil.
2. Deorao s/o Kawaduji Kamatkar,
Aged about 20 years, Occupation : Nil,
Both r/o Bhawani Nagar,
Near Mahesh Kirana Stores,
Nagpur. ..... Appellants.
:: VERSUS ::
The State of Maharashtra,
Through Police Station Officer,
Police Station Mouda, District Nagpur. ..... Respondent.
===================================
Shri N.R.Tekade, Counsel for the Appellants (Appointed).
Shri S.M.Ghodeswar, Additional Public Prosecutor for the
Respondent/State.
===================================
CORAM : V.M.DESHPANDE, J.
DATE : MARCH 8, 2019.
ORAL JUDGMENT
1. By the present appeal, the appellants (hereinafter referred to as, "the accused" for the sake of brevity) are challenging judgment and order of conviction dated 15.9.2010 passed by .....2/-
::: Uploaded on - 11/03/2019 ::: Downloaded on - 14/03/2019 16:59:23 ::: Judgment apeal58.2011 2 learned Additional Sessions Judge, Nagpur in Sessions Trial No.26/2009.
2. By the impugned judgment and order of conviction, learned Judge of the Court below convicted appellant No.1 for offence under Section 326 read with Section 34 of the Indian Penal Code and directed to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1000/- and in default of payment of the fine amount to suffer simple imprisonment for 3 months.
Appellant No.2 is also convicted for offence under Section 326 read with Section 34 of the Indian Penal Code and directed to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.1000/- and in default of payment of the fine amount to suffer simple imprisonment for 3 months.
3. Heard learned counsel Shri N.R.Tekade appointed through the High Court Legal Services Sub Committee at Nagpur to represent the appellants since earlier counsel for the appellants were found to be remained absent in the matter. Also, I have heard learned Additional Public Prosecutor Shri S.M.Ghodeswar .....3/-
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4. Learned counsel Shri N.R.Tekade for the appellants submitted that the appellants are falsely implicated in the crime. He submitted that first informant and another injured have turned hostile and they did not support the prosecution case at all.
The said submissions of learned counsel for the appellants are pointer for false implication of the appellants.
It is also submitted by him that in any case the appellants cannot be convicted for offence under Section 326 of the Indian Penal Code and alternatively he submitted that at the most the appellants have committed an offence under Section 324 of the Indian Penal Code.
5. Per contra, learned Additional Public Prosecutor Shri S.M.Ghodeswar for the respondent/State vehemently opposed the submission of learned counsel for the appellants. He submitted that perusal of evidence of Dr.Janrao Vithobaji Verulkar (PW17) and injury certificate (Exhibit 70) clearly shows that injury suffered by .....4/-
::: Uploaded on - 11/03/2019 ::: Downloaded on - 14/03/2019 16:59:23 ::: Judgment apeal58.2011 4 Pramod Pande (PW1) were grievous in nature and, therefore, learned Judge of the Court below rightly convicted the accused persons for offence under Section 326 of the Indian Penal Code.
6. In this case, Sofiya Afzalkhan Pathan (PW8), who lodged oral report, and her husband Afzalkhan Chandkhan Pathan (PW9), who is injured, have turned hostile and they did not support the case of the prosecution at all. However, Sofiya Pathan admitted her signature on the oral report. According to her, her signatures were obtained by Investigating Officer on blank paper.
7. Police Sub Inspector Sharad Shankarrao Memane (PW19) is Investigating Officer. His evidence shows that on 15.6.2008 he was attached to Kalamana Police Station and at 20:12 hours Sofiya Pathan (PW8) came to the police station and lodged her oral report that her husband and her neighbour Pramod Pande (PW1) are assaulted by the accused persons. Accordingly, he scribed complaint as per her version. The Investigating Officer proved contents of the oral report. The said oral report is at Exhibit 85.
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8. As per the oral report (Exhibit 85), on 15.6.2008, when first informant Sofiya Pathan (PW8) was cooking food, Pramod Pande's sons were throwing debris in front of house of Lomesh, appellant No.1. At that time, Lomesh came in front of house of Pramod Pande and started abusing his children. Therefore, she also came out of her house. In the meanwhile, Pramod Pande came out of his house and asked Lomesh not to use abusive language. Thereupon, Lomesh went inside his house and brought a big knife and stabbed Lomesh. In the assault, Deorao, the appellant No.2 was also involved. They were assaulting Pramod Pande. Therefore, her husband Afzalkhan Pathan (PW9) went there for his rescue, however Lomesh also inflicted a knife blow on his abdomen. Thereafter, along with residents of the locality she brought her husband and Pramod Pande (PW1) to A.D.N.Hospital where first aid was given and they were referred to Mayo Hospital at Nagpur.
9. On the basis of the oral report (Exhibit 85), the Investigating Officer registered a crime against the accused persons vide Crime No.153/2008 for offence under Section 326 of the .....6/-
::: Uploaded on - 11/03/2019 ::: Downloaded on - 14/03/2019 16:59:23 ::: Judgment apeal58.2011 6 Indian Penal Code. The Investigating Officer conducted usual investigation. He prepared spot panchnama (Exhibit 89). He arrested the accused persons and at the time of the arrest, from appellant No.1-Lomesh a knife was seized from the spot itself under seizure memo (Exhibit 87). The Investigating Officer also seized clothes of the accused persons as well as clothes of the injured persons. Muddemal property was sent to Chemical Analyzer and Chemical Analyzer's Reports are available on record. Since during the course of the investigation, role of father of appellant No.1 was also disclosed, chargesheet was also filed against him.
10. Learned Judge of the Court below framed charge against accused No.1-Lomesh for offences under Sections 354 and 448 of the Indian Penal Code. Learned Judge of the Court below also framed charge for offences under Sections 307 read with Section 34 of the Indian Penal Code against all 3 accused persons for making murderous assault on Pramod Pande (PW1). Learned Judge below also framed charge for offence under Section 307 read with Section 34 of the Indian Penal Code against the .....7/-
::: Uploaded on - 11/03/2019 ::: Downloaded on - 14/03/2019 16:59:23 ::: Judgment apeal58.2011 7 appellants only for making murderous assault on Afzalkhan Pathan (PW9). Learned Judge below also framed charge against all 3 accused persons for offence under Section 506 read with Section 34 of the Indian Penal Code.
11. In order to bring home the guilt of the accused persons, the prosecution examined in all 19 witnesses.
12. After a full fledged Trial, learned Judge of the Court below acquitted accused No.3-Kawaduji Shriram Kamatkar of all the offences. Similarly, learned Judge below though acquitted both the appellants of offences under Sections 307, 448, and 354 read with Section 34 of the Indian Penal Code, convicted them for offence under Section 326 read with Section 34of the Indian Penal Code for causing grievous hurt to Pramod Pande (PW1).
13. Though in the present case 19 witnesses are examined by the prosecution, panch witnesses have turned hostile. Even, Afzalkhan Pathan (PW9) has also turned hostile and he has not supported the prosecution case at all. In addition to that, even the prosecution did not care to prove the injuries on the person of .....8/-
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14. Evidence of injured Pramod Pande (PW1) shows that on the day of the incident he was present on terrace and he was throwing debris on the ground. At that time, Lomesh, appellant No.1, tried to allure his daughters and when he was obstructed by Pramod Pande, he was assaulted by knife. He also attributed role to appellant No.2 initially that he caught hold Pramod Pande and subsequently also attributed role that he also assaulted on him. Learned Judge of the Court below has not relied on evidence of Mamta Pramod Pande (PW10), a child witness.
15. The evidence of Pramod Pande (PW1) is duly corroborated by Sugrata Sukhchand Wadhai (PW2), an independent witness, and at the relevant time, she was neighbour of Pramod Pande. Her evidence shows that appellant No.2 caught hold Pramod Pande and appellant No.1 gave knife blows.
16. Chanchaladevi Mithilesh Pande (PW3), is sister of Pramod Pande (PW1), who came to stay with her brother Pramod Pande, at the relevant time also supports Pramod Pande in respect .....9/-
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Nothing could be brought on record by the defence about causing any doubt on the truthfulness of the versions of the prosecution witnesses about the assault. Therefore, there is no difficulty in accepting the versions made by these prosecution witnesses about the role attributed by them to these two appellants. Also, perusal of Chemical Analyzer's Report (Exhibit
100) shows participation of appellant No.1 in the crime.
17. The Chemical Analyzer's Report (Exhibit 100) shows that clothes of appellant No.1 were stained with two Blood Groups viz. "AB" and "B". Blood Group of injured Pramod Pande (PW1) is determined as "AB".
18. In view of the aforesaid, only question that this Court is required to answer is, as to whether the prosecution has ably proved that due to the assault made by the appellant, they caused grievous injury or not.
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19. As per the First Information Report (Exhibit 85), after the assault, the injured were taken to A.D.N.Hospital where first aid was provided to them and, thereafter, they were referred to Mayo Hospital at Nagpur. No medical paper or any doctor is examined by the prosecution either from the A.D.N.Hospital or from the Mayo Hospital at Nagpur.
20. Manik s/o Charandas Gedam (PW18) is doctor. On 16.6.2008, he was attached to Mayo Hospital, Nagpur. His evidence shows that on the said day, a patient by name Pramod Pande was brought to the hospital and initially he was examined by Medical Officer in Casualty Department and, thereafter, he was referred to resident doctor under surgery. His evidence shows that his resident doctor who was in casualty at that time examined Pramod Pande and he called him. On examination the patient, Dr.Gedam noticed following injuries:
(1) over left lumber region laterally of size 3 cm in length;
(2) sutured wound over right scapular region, and (3) sutured lacerated wound over right ankle.
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::: Uploaded on - 11/03/2019 ::: Downloaded on - 14/03/2019 16:59:23 ::: Judgment apeal58.2011 11 His evidence shows that Pramod Pande was in stable condition. However, since there was history of stab injury which was already sutured, he admitted him for further investigation. His evidence shows that he investigated the injuries, but found patient Pramod Pande in normal condition. However, he kept the patient under observation for 24 hours and, thereafter, he was discharged from the hospital as he was found in normal condition.
21. Medical papers containing 8 pages are collectively marked at Exhibit 80 and those are proved by Dr.Manik Gedam (PW18).
22. According to the prosecution, on18.6.2008, injured Pramod Pande (PW1) was required to be admitted at Radhakrishna Hospital and Research Institute, Nagpur. The prosecution examined Dr.Vasant Balaji Chawhan (PW5) to show that Pramod Pande was admitted at Radhakrishna Hospital and Research Institute, Nagpur. His evidence shows that after opening of the wound, there was puss and the said was drained out. His evidence .....12/-
::: Uploaded on - 11/03/2019 ::: Downloaded on - 14/03/2019 16:59:23 ::: Judgment apeal58.2011 12 shows that at that time he suspected that the patient might have suffered bowel injury/perforation and, therefore, he advised him for surgery and, thereafter, he was taken to Dr.Gaikwad Critical Care Centre at Sakkardara where was operated by Dr.Nilesh Digambar Changale (PW16).
Dr.Nilesh Changale (PW16) proved operation notes (Exhibit 66).
23. The prosecution has also examined Dr.Janrao Vithobaji Verulkar (PW17) who gave injury certificate (Exhibit 70) to show that the injuries suffered by injured Pramod Pande (PW1) were grievous in nature.
24. Exhibit 80 is first documentary evidence available on record coupled with evidence Dr.Manik Gedam (PW18) who personally examined patient Pramod Pande (PW1). Evidence of Dr.Manik Gedam does not show that the injuries were grievous in nature neither such was observed in Exhibit 80. On the contrary, it is very positive evidence of Dr.Manik Gedam that when he examined, injured Pramod Pande was found to be stable. Not only .....13/-
::: Uploaded on - 11/03/2019 ::: Downloaded on - 14/03/2019 16:59:23 ::: Judgment apeal58.2011 13 that, only by way of precaution for observation, the patient was admitted in the hospital and on 17.6.2008 he was discharged from the hospital.
25. Dr.Janrao Verulkar (PW17) though states that the injuries were grievous in nature, in my view, much importance cannot be attached to his evidence in that behalf for the reason that at no point of time Dr.Janrao Verulkar personally examined patient Pramod Pande (PW1).
26. Dr.Vasant Balaji Chawhan (PW5), who opened the wound on 18.6.2008, found that there was puss and the said was drained out. However, in the cross-examination he admitted that he could not tell depth of the injury which was examined by him.
27. Dr.Nilesh Changale (PW16) has performed the operation. His evidence shows that the patient was operated at IGMC Hospital for the same injury. However, Exhibit 80 does not show that the patient was operated at the IGMC Hospital. Further, Dr.Nilesh Changale admitted that in absence of case papers from IGMC Hospital, he cannot firmly opine about the injury.
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28. The aforesaid nature of the evidence, in respect of the injury, shows that the prosecution has not proved beyond reasonable about the nature of injury as to whether it was simple or grievous.
29. In that view of the matter, in my view, the offence under Section 326 of the Indian Penal Code can be scaled down to offence under Section 324 of the Indian Penal Code.
30. Appellant No.1-Lomesh @ Gomeshwar s/o Kawaduji was arrested on 15.6.2008 and he was released on bail on 23.6.2008. Similar is the case in respect of appellant No.2-Deorao s/o Kawaduji Kamatkar. During the pendency of the Trial, at no point of time they misused the liberty granted to them in their favour. After the judgment and order of conviction, appellant No.2 filed an application for suspension of substantive jail sentence before learned Judge of the Court below and the Court below was pleased to suspend the substantive jail sentence. However, appellant No.1 was in jail and he was released on bail on 30.3.2011. The incident in question is dated 15.6.2008 and 11 .....15/-
::: Uploaded on - 11/03/2019 ::: Downloaded on - 14/03/2019 16:59:23 ::: Judgment apeal58.2011 15 years have lapsed. There is no complaint from the prosecution that during the said period any untoward incident has happened between these two families who are neighbourers.
31. In that view of the matter, I pass following order:
ORDER
(i) The criminal appeal is partly allowed.
(ii) The judgment and order of conviction dated 15.9.2010 passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No.26/2009 convicting the appellants for offence under Section 326 read with Section 34 of the Indian Penal Code is hereby quashed and set aside.
(iii) The appellants are convicted for offence under Section 324 read with Section 34 of the Indian Penal Code, instead of offence under Section 326 read with Section 34 of the Indian Penal Code and their jail sentence shall be the period which they have already undergone in jail.
(iv) The fine amount is maintained.
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(v) Fees payable to learned counsel Shri N.R.Tekade appointed through the High Court Legal Services Sub Committee at Nagpur are quantified at Rs.5000/- towards his professional charges.
JUDGE !! BRW !! ...../-
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