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Judgment
Challenge is to the judgment dated 06-2-2002, delivered
by the learned Additional Sessions Judge, Amravati in Sessions Trial
109/1996, by and under which the appellant (hereinafter referred to as
the "accused") is convicted for offence punishable under Sections 307
and 324 of the Indian Penal Code and is sentenced to suffer rigorous
imprisonment for five years and six months respectively.
The accused faced trial alongwith Prabhakar Wankhade,
Kisna Wankhade and Narayan Kisan Bawane (accused 2 to 4). The
other accused have been acquitted by the learned Additional Sessions
Judge, Amravati.
The case of the prosecution as can be culled out from the
report dated 17-3-1996 (Exhibit 15) lodged by Arvind Champatrao
Arjune is that the informant and Keshao Arjune returned from duty on
3-00 p.m. and thereafter in the evening of 17-3-1996 the informant
and Keshao had gone to the house of one Prabhakar to hand over
certain amount. On the way back, at 9-30 to 10-00 p.m. Gopal
Wankhade accosted them, held the informant by collar and started
inflicting fist and kick blows. Gopal then started assaulting Keshao
with fists. Gopal then inflicted a knife blow on the chest of Keshao. As
the assault was on, the other accused came and assaulted Keshao
Arjune with fist blows. The informant further states that Gopal went
home and fetched an iron rod and assaulted the informant. This
complaint was treated as first information report and offence
punishable under Sections 307 and 326 read with Section 34 of the
Indian Penal Code was registered. The investigation culminated in
filing of charge-sheet before the learned Judicial Magistrate First Class,
Dhamangaon Railway, who committed the case to the sessions Court.
The learned Sessions Judge framed charge at Exhibit 5, the accused
pleaded not guilty and claimed to be tried. The prosecution examined
as many as nine witnesses including the injured Arvind and Keshao.
The defence of the accused, as is discernible from the statement
recorded under Section 313 of the Criminal Procedure Code is of total
denial and false implication.
P.W.1 is the informant Arvind Champatrao Arjune.
Broadly, the deposition is consistent with the first information report.
P.W.1 states that when he and Keshao were returning from the house
of one Patmase, accused Prabhakar and Gopal assaulted P.W.1 and
Keshao with fist blows and then accused Gopal whipped out a knife
and assaulted Keshao on the left side of abdomen while accused
Prabhakar held Keshao. P.W.1 states that three blows were inflicted on
Keshao. P.W.1 shouted for help, accused ran to his house and brought
an iron rod with which the accused assaulted P.W.1 on the head.
P.W.1 then states that accused Narayan and Kisan then arrived with
sticks and assaulted P.W.1 and Keshao. P.W.1 states that thereafter
one Balkrushna Arjune (uncle of P.W.1) and Ramesh Tailor arrived at
the spot and pacified the assailants. P.W.1 admits that he and the
accused are not on cordial terms. P.W.1 further admits that on the day
of the incident there was no electric supply at the village. P.W.1 denies
the suggestion that the accused was assaulted by P.W.1, the other
injured Keshao and three others. P.W.1 further denies the suggestion
that the accused was assaulted by P.W.1 and others with iron rod,
sticks, etc. P.W.1 denies the suggestion that in the melee Keshao was
assaulted by somebody other than the accused. P.W.1 denies the
suggestion that during the commotion, he fell down and received the
head injury.
P.W.3 is Keshao Arjune who states that at 10-00 p.m. on
the day of the incident, he and P.W.1 were returning from the house of
one Patmase. Accused Prabhakar and Gopal inflicted fist blows,
accused Prabhakar caught hold of P.W.3 and the accused Gopal
inflicted knife blows on chest and abdomen of P.W.3. He further states
that accused ran away, he was taken to the police station, statement
was recorded and then he was taken to the hospital. P.W.3 states that
he was admitted for six days at Amravati Hospital and thereafter for a
further period of six days at Nagpur. The suggestions which were put
to the other injured P.W.1 were also put to P.W.3. P.W.3 was
suggested that as a fact the accused Gopal was assaulted by P.W.1,
P.W.3 and others. A suggestion is given to P.W.3 that in the melee
somebody other than the accused assaulted P.W.3. The cross-
examination of P.W.3 is of no assistance to the accused. The credibility
of the evidence is not shaken. On the other hand, the text and tenor of
the cross-examination would suggest that the accused was present on
the spot. The defence suggestion is that the accused was assaulted by
P.W.1, P.W.3 and others and that in the live situation and commotion
somebody other than the accused inflicted the knife blow on Keshao.
P.W.4 is the father of injured Arvind. He claims to have
witnessed the iron rod assault by Gopal on Arvind. P.W.4 then states
that Arvind was also assaulted by accused Prabhakar and Kisan who
were armed with sticks. P.W.4 does not claim to have witnessed the
assault on Keshao. P.W.5 Sunil Wani, who is examined as eyewitness,
has not supported the prosecution and was declared hostile. However,
the cross-examination by the Public Prosecutor fails to elicit any
material to assist the prosecution. P.W.6 Leelabai states that when she
was in her house, she heard P.W.1 shouting and when she went to the
spot, she witnessed the accused assaulting P.W.1 Arvind. P.W.6, also
claims that the other accused assaulted Arvind with sticks. P.W.7
Satyanarayan is examined to prove the seizure panchanama. He did
not support the prosecution and was declared hostile. P.W.8 Prakash
Sune was the medical officer attached to Government Hospital,
Amravati. P.W.8 states that Keshao was admitted on 18-3-1996 at 2-00
a.m. with stab injury. P.W.1 states that Keshao was critical and had
two stab wounds, one on the chest of the left side of the size 1 cm. X 1
cm. and the second on the abdomen on the left side of the same size.
P.W.8 deposes that on external examination, it could be ascertained
that the lung on the left side was injured and blood and air had
collected in thoracic cavity on the left side. Keshao was operated on
the same day and was shifted to Medical College Hospital, Nagpur at
his request. P.W.8 further states that if not treated properly, injuries
on the person of Keshao which were on vital part were sufficient to
cause death in the ordinary course. P.W.8 has also deposed as regards
the injuries suffered by Arvind. P.W.9 Ghule is the investigating
officer. He has proved the memorandum of admission under Section
27 of the Indian Evidence Act (Exhibit 35), pursuant to which the knife
was recovered from the drainage behind the house of the accused.
P.W.2 Dr. Riqub Darda was attached to Primary Health
Center, Dhamgaon in March 1996. P.W.2 has proved the injury
certificate (Exhibit 17) and the injury certificate (Exhibit 18) pertaining
to injured Arvind and injured Keshao respectively. P.W.2 noticed two
stab injuries on the person of Keshao. The first stab injury was on the
left side of chest below nipple of 2 cm. X 1 cm. and 5 cm. deep and the
second injury was on the left side of the abdomen of 2 cm. x 1 cm. x 1
cm. P.W.2 has deposed that the stab injuries were on vital part and
were in ordinary course sufficient to cause death. In the cross-
examination, P.W.2 admits that he only administered first aid and
referred Arvind and Keshao to Amravati hospital. He denies the
suggestion that unless the internal damage is seen, it cannot be opined
whether the injuries were sufficient to cause death. He denies the
suggestion that the injuries found on the person of Keshao were simple
injuries and were not sufficient in the ordinary course to cause death.
The learned counsel for the accused Shri V.B. Bhise would
submit that the prosecution has not established the motive, the
witnesses are interested witnesses and their testimony must be tested
with caution. The identification of the accused is doubtful since there
was no electricity at the relevant time. The evidence of PW 1 that he
was assaulted with iron rod is falsified by the medical evidence since
PW 8 Dr. Sune admits that the incised wound noticed is not possible by
blow of iron rod. The evidence of material witnesses is marred by
inter- se discrepancies and the discovery and seizure of knife and iron
rod is not proved, is the submission. The alternate submission is, that
in any event the prosecution has failed to establish offence punishable
under section 307 of the IPC and at the most the offence made out will
be under section 324 of the IPC. Reliance is placed on the judgment of
the Apex Court in Hari Kishan & State of Haryana Vs. Sukhbir Singh
& Ors, 1998 SC 2127 and judgment of a learned Single Judge of this
Court in Prabhu s/o. Limbaji Bade & Anr Vs. State of Maharashtra,
2016(6)Mh. L.J.(Cri.)114 and Bhanudas s/o. Manikrao Jadhav &
Ors Vs. The State of Maharashtra, 2017 ALL MR (Cri) 2935.
Per contra, the learned Additional Public Prosecutor Shri A.V.
Palshikar would submit that the assault by the accused on PW 1 Arvind
and PW 3 Keshav is proved beyond reasonable doubt. The strained
relationship is brought on record. Even otherwise, in the teeth of
unimpeachable ocular evidence, the motive is rendered insignificant, is
the submission. The accused is not disputing presence at the scene of
occurrence and that the defence is that there was a physical altercation
in which the injured witnesses assaulted the accused and in the
commotion the injured witnesses were assaulted by some other
person-s. The learned APP argues that the defence is not probabilized
even on the touchstone of preponderance of probabilities.
I have closely scrutinized the evidence on record and the
reasoning of the learned Sessions Judge. The finding that the accused
assaulted Arvind (PW 1) with iron rod and Keshav (PW 3) with a knife,
is unexceptionable. PW 1 Arvind and PW 3 Keshav are injured
witnesses and their evidence deserves greater weight than that of other
witnesses. No material is brought on record to show why the injured
witnesses would exculpate the guilty and inculpate the innocent. The
evidence of the injured witness is implicitly reliable and confidence
inspiring and I do not see any reason to disbelieve the injured
witnesses. Be it noted, that the accused is not disputing his presence
on the spot. The suggestion given by the defence is that the accused
was assaulted by the injured witnesses and others and in the
commotion somebody other than the accused inflicted the knife blow
on PW 3 Keshav. The panch to the seizure panchanama PW 7 did not
support the prosecution. The memorandum of admission Exhibit 35 is
proved by PW 9 Investigating Officer. The knife is recovered from a
drainage behind the house of the accused. The evidence on recovery is
not free from doubt. However, even if the said evidence is kept out of
consideration, the conscious of this Court is satisfied that having regard
to the implicitly reliable and credit-worthy testimonies of the injured
witness PW 1 Arvind and PW 3 Keshav, it is proved beyond reasonable
doubt that the accused assaulted the injured witnesses.
The alternate submission of the learned counsel is that the
prosecution has not proved offence punishable under section 307 of the
IPC. The evidence on record is not sufficient to prove that the accused
can be attributed with the requisite intention or knowledge, is the
submission. In Hari Kishan and State of Haryana Vs. Sukhbir Singh
and others, the Apex Court noted that two parties in the course of a
fight inflicted on each other injuries both serious and minor. The
accused were armed with Ballam. However, the accused did not use
the sharp edge and used only a blunt side despite being attacked by
other side. The accused were not provoked or tempted to use the
cutting edge of the weapon. It is in the light of these facts, that the
Apex Court held that the accused did not have the intention to commit
murder.
In Bhanudas s/o. Manikrao Jadhav & Ors Vs. The State
of Maharashtra, the injuries were caused by means of pen knife and
were concededly simple in nature. The learned Single Judge held that
in the facts and circumstances at the most offence under section 302 of
the IPC is made out. In Prabhu s/o. Limbaji Bade & Anr Vs. State of
Maharashtra, the learned Single Judge noted that although the knife
blow was inflicted near the head of the injured, the injury was
superficial. It was noted that the accused did not make any other or
repeated attempt to cause injury to PW 1 Vishnu. The learned Single
Judge in the facts of the case held that offence under section 307 of the
IPC is not proved. It is a settled position of law, that in order to bring
home the charge under section 307 of the IPC, requisite intention or
knowledge is the sine qua non. The result or consequence of the act is
not decisive. The gravity of the injury is not decisive and the intention
to cause death may be gathered even if the injury is minor and indeed
even in the absence of an injury. However, the nature and extent of
injury may, in certain circumstances, assist the Court in determining
whether the accused intended to cause death or can be attributed with
the requisite knowledge. The cumulative effect of various
circumstances like the motive, whether the injury was caused in a
sudden quarrel or fight, whether the accused was assaulted with a
weapon or he happened to lay his hand on a weapon, the nature of the
weapon used and the severity of the blow, whether a single blow was
inflicted or multiple blows were struck, whether the blow was inflicted
on vital organ, the list not being exhaustive, much be considered. In
the case at hand, irrefutably the accused assaulted PW 3 Keshav with
knife and did not stop after he inflicted the first blow. The knife blows
were inflicted on chest and abdomen. The bed head ticket is proved by
PW 8 Dr. Sune which reveals that PW 3 injured Keshav was
immediately operated, the blood collected in thoracic cavity was
extracted and the nature and extent of the injury sustained by PW 3
Keshav is stated by Dr. Sune to be grievous and sufficient in the
ordinary course to cause death. The defence that it was the
prosecution witnesses who assaulted the accused is not probabilized,
even on the touchstone of preponderance of probabilities. PW 3 was
accosted and then assaulted by the accused who was armed with a
knife. There is absolutely no evidence on record that the assault was
on the spur of the moment or in a sudden flare up or fight. The
evidence would suggest, that due to history of previous dispute, the
injured witnesses PW 1 and PW 3 were accosted and assaulted by the
accused. In the teeth of the evidence on record, I am not inclined to
agree with the submission of the learned counsel for the accused that
the prosecution has failed to prove offence punishable under section
307of IPC.
In so far as sentence is concerned, the accused has filed on
record an application under section 4 of the Probation of Offenders Act,
1958. However, since I am upholding the conviction under section 307
of the IPC and the maximum punishment is life, I am not inclined to
extend the benefit of the Probation of Offenders Act . However, since
the incident occurred 20 years ago and the accused is eking out
livelihood by doing labour work and has three children - Mayur 12
years, Abhishekh 11 years and Shubham 10 year old to look after, I am
inclined to reduce the sentence to two years. In the result, subject to
the afore stated alteration of sentence for offence punishable under
section 307 of th IPC, the appeal is liable to be dismissed.
(i) The conviction of the accused under section 324 and 307
of the IPC is maintained.
(ii) The sentence awarded by the learned Sessions Judge for
offence punishable under section 307 of the IPC is altered and
reduced to rigorous imprisonment for two years. However,
subject to the alteration in sentence, the appeal against
conviction is dismissed.
(iii) The bail bond of the accused shall stand cancelled.
(iv) Accused shall be taken in custody to serve the reminder of
the sentence.
(v) The accused shall be entitled to set of under section 428 of
Criminal Procedure Code.
(vi) The appeal is disposed of in the above terms.