NAMDEO S/O. CHANDRABHAN CHAROLE (IN JAIL) vs STATE OF MAHARASHTRA THR. POLICE STATION OFFICER DARATI, TAH. UMARKHED DIST. YAVATMAL

S.B. SHUKRE, J.

1.Being aggrieved by the judgment and order dated 29/09/2017 rendered in Sessions Trial Case No.25/2007 by the Additional Sessions Judge, Pusad,

District Yavatmal, this appeal has been preferred by the appellant.

2.The appellant as well as the injured person were residents of village Amdapur, Tahsil Umerkhed, District Yavatmal. Both were agriculturists owning

agricultural lands, which were adjoining to each other. The way to the field of the injured person Kailash Zamre passed through the field of the

appellant. Few days before the incident, which took place in the night of 10/02/2007 at village Amdapur, the appellant, it is alleged, had closed the

usual access to the field of the injured person and provided some other way, which was a circuitous route. This was protested by the injured person

and his family members, which ultimately led to a civil dispute, being filed before the Civil Court at Umerkhed. It is alleged that because of pendency

of this dispute, the appellant had a grudge against Kailash Zamre.

3.In the night of 10/02/2007 at about 09:00 p.m., Kailash Zamre took out his motorcycle for going to village Shirmal. At the village Chaodi, which is a

prominent square in the village, Kailash Zamre stopped his motorcycle. He purchased Bidi and before kick starting the motorcycle, he checked for the

fuel. At that time, the appellant hiding somewhere nearby, suddenly appeared from the backside of Kailash Zamre. He had covered his body with a

bed-sheet or a blanket. He was also armed with an axe, which he kept concealed inside the cover. He pounced upon Kailash Zamre and dealt blows

of axe to his head, neck and shoulder. Kailash Zamre sustained bleeding injuries and collapsed on the ground. He also shouted for help. There were

some persons present at the Chaodi. They included Manikrao Torkar and Sukhdeorao Zamre. They came running and rescued Kailash Zamre.

Manikrao Torkar put up resistance to the appellant. He snatched the axe from appellant's hands. Then, the appellant ran away from the spot of

incident. Kailash Zamre was initially taken to the hospital at Phulsawangi, then to Yavatmal and finally to Nagpur, where he remained admitted for a

considerable period of time.

4.Meanwhile, Laxmibai Zamre, mother of Kailash, learnt about this incident. She also rushed to the spot, but, on being told that her son was taken to

hospital at Phulsawangi, she went to Phulsawangi. She bestowed her attention fully to her son as she felt worried because of head injury sustained by

her son. On the next day, in the evening at about 17:00 hours, she lodged a report with Police Station Darati and then the investigation commenced.

5.During the course of the investigation, spot-panchnama was prepared. Seizure of clothes and other articles were made. The appellant was arrested.

Axe and clothes were recovered at his instance. Statements of witnesses were recorded. After completion of the investigation, charge-sheet was filed

against the appellant. The appellant was prosecuted for an offence punishable under Section 307 of Indian Penal Code ('IPC' for short). On merits of

the case, the learned Additional Sessions Judge found that the offence was proved beyond reasonable doubt against the appellant and, therefore, by

the impugned judgment and order, the learned Additional Sessions Judge convicted the appellant of the offence punishable under Section 307 of IPC

and sentenced him to suffer simple imprisonment for seven years and also fine of Rs.5,000/-, with default sentence of simple imprisonment for three

months. Not being satisfied with the same, the appellant is before this Court in the present appeal.

6.I have heard Shri Aditya Mane, learned Counsel for the appellant and Shri H.D. Dubey, learned Additional Public Prosecutor for the State. I have

carefully gone through the record of the case including the impugned judgment and order.

7.In this case, the prosecution has examined in all six witnesses. PW-1 Laxmibai Zamre is the complainant, who being the mother of PW-2 Kailash

Zamre, learnt about the incident soon after the assault had taken place. PW-2 Kailash Zamre is the injured person. PW-3 Dattarao Pandagale is one

of the eye-witnesses and also a panch-witness for the spot-panchnama and for the seizure of such articles as blood mixed soil and plain soil, the axe

discovered by the appellant, the clothes of the appellant discovered by him and clothes of the other eye-witness Sukhdeorao Zamre, who was amongst

the villagers, who had taken the injured person to hospital. PW-4 Manikrao Torkar is an eye witness, who had saved the injured person from the

further assault upon him by the appellant. PW-5 Dr. Rama Prakashchandra Bajoriya is the Casualty Medical Officer at Government Medical College,

Yavatmal, who had examined and treated the injured person. PW-6 Hansraj Undirwade is the Investigating Officer, who conducted most of the

investigation. Now, let us start the scrutiny of the evidence with that of the injured person.

8.The evidence of PW-2 Kailash Zamre shows that when he was standing at the Chaodi of Village Amdapur at about 09:00 p.m. of 10/02/2007 and

checking for the stock of the petrol in the fuel tank of his motorcycle, the appellant covering his body by means of a blanket, came from his backside

and assaulted him by giving blows of the axe that he was holding in his hand on his head, neck and shoulder. He has stated that following the assault,

scuffle between himself and the appellant ensued and he fell down on the ground. His evidence further shows that at that point of time, PW-4

Manikrao Torkar, a villager of Amdapur, who was standing nearby, came there and asked the appellant to stop whereupon the appellant brandished

the axe to him. Then, according to the evidence of PW-2 Kailash Zamre, Manikrao Torkar snatched away the axe from the hands of the appellant.

His evidence also shows that then he was taken by the villagers to the hospital of Dr. Shamim at Phulsawangi and then to a hospital at Yavatmal and

finally to Hope Hospital at Nagpur for treatment of the injuries that he suffered in the assault. He has also stated that at that point of time, his nephew,

Sukhdeorao Zamre was with him and the incident occurred in front of shop of Sanjay Dumare. This witness the PW-2, has identified the axe, his

clothes and clothes of the appellant.

9.According to the learned Counsel for the appellant, many of the facts stated by PW-2 Kailash Zamre are in the nature of omissions and being

material in nature, his evidence becomes of doubtful nature. He also submits that much of his testimony is not consistent with the evidence of the other

witnesses, in material particulars. He further submits that his conduct is doubtful as he never informed the Doctor attending upon him at Phulsawangi

that he was assaulted by the appellant by means of an axe, rather he told the Doctor that somebody had beaten him. He further submits that the

Doctor, who initially examined him at Phulsawangi, was not examined as a witness by the prosecution, that no injury report has been produced in the

evidence by the prosecution and what was produced was only a progressive injury report. He submits that some of the material witnesses have been

left out by the prosecution, and so there is no corroboration to version of the injured person. Therefore, according to him, a serious doubt has arisen

about the truthfulness of this witness as well as genuineness of the prosecution case. This is all disagreed to by the learned A.P.P. for the State.

10.The argument of the learned Counsel for the appellant, however, deserves no acceptance. Most of the omissions in the evidence of PW-2 Kailash

Zamre that the learned Counsel is harping on, had not been proved and those which are there, do not amount to contradictions as they do not have the

effect of unsettling the evidence of PW-2 Kailash on the core aspect of the case, that is, he was assaulted by the appellant in the night of 10/02/2007

at the Chaodi of village Amdapur by means of an axe, thereby seriously injuring him. About the inconsistencies also, I do not see them in the evidence

of PW-3 Dattarao Pandagale, PW-4 Manikrao Torkar and PW-1 Laxmibai Zamre. The evidence of PW-3 Dattarao Pandagale and PW-4 Manikrao

Torkar, who are the eye-witnesses, broadly supports the evidence of PW-2 Kailash Zamre. About the inconsistencies, I would say, they are indeed

there, but being minor need to be ignored. They relate to such aspects as whether there was any scuffle in between PW-2 Kailash Zamre and the

appellant or not, whether Manikrao Torkar snatched away the axe or not, whether Dattarao Pandagale was amongst the villagers, who had taken

PW-2 Kailash Zamre to the hospital after getting injured in the assault or not and so on and so forth. These inconsistencies do not really touch the root

of the matter, which lies in the dangerous assault having been made by the appellant upon PW-2 Kailash using a dangerous weapon like axe.

11.It is true that Dr. Shamim of Phulsawangi Hospital has not been examined as a prosecution witness. It is also true that Sukhdeorao Zamre, the

nephew of PW-2 Kailash Zamre, who was present at the spot of incident and one Sanjay Dumare, the shop owner in front of whose shop the incident

took place, were not examined as prosecution witnesses. But the question is about the impact of such non-examination upon the evidence of PW-2

Kailash Zamre and I do not see that their non-examination as prosecution witnesses has created such a dent in the story of PW-2 Kailash Zamre as to

make him a witness unworthy of credit. Basically, it is not the fault of PW-2 Kailash Zamre, if some of the witnesses, who had an opportunity to share

some of the facts relating to the incident with PW-2 Kailash or see the incident, were not examined. Then, the question is whether or not his evidence

requires any corroboration. In this case, as I see on reading the entire evidence, that testimony of PW-2 Kailash evokes confidence and trust about it's

truthfulness and it receives boost from the medical evidence and that of two eye- witnesses, requiring no further corroboration. The law is not about

quantity of evidence, but essentially about it's quality. Time honoured principle, as the Hon'ble Apex Court says in Kishan Chand vs. State of Haryana

- JT 2013(1) SC 222 is that evidence must be weighed and not counted. The other well entrenched principle is that Court cannot compel the

prosecution to examine a witness, it wishes not to and that it's duty does not go beyond examining such witnesses as are necessary for the purpose of

disclosing prosecution story with all it's essential details, as held in Sardul Singh vs. State of Bombay - AIR 1957 SC 747, which view has been

reiterated in several subsequent judgments of Hon'ble Supreme Court (See Banty alias Guddu vs. State of Madhya Pradesh - (2004) 1 SCC 414).

When the prosecution has been satisfied with the quality of the evidence, it led in support of it's case as contemplated under Section 231 of Code of

Criminal Procedure, it is futile to expect in law that the prosecution would still go ahead and examine many more witnesses. This is what the

prosecution has done in this case, and the trial Court has rightly seen sufficiency of this evidence in establishing the truth. If the appellant saw any

advantage for himself in the evidence of the remaining eye-witnesses cited by the prosecution and not examined by it, nothing prevented him from

making an application to the trial Court to seek it's permission to examine the left out prosecution witnesses as defence witnesses. This is the present

position of law laid down by the Hon'ble Supreme Court in the cases of Hukum Singh and others vs. State of Rajasthan (2000) 7 SCC 490 and Banty

alias Guddu vs. State of Madhya Pradesh (supra). But, the appellant, in spite of having such an opportunity, did not avail of it and, therefore, now the

appellant cannot say that non-examination of the remaining eye-witnesses has created a doubt about the prosecution story.

12.It is also true that PW-2 Kailash Zamre did not tell Dr. Shamim of Phulsawangi Hospital that he was assaulted by the appellant and that he just

curtly told him that he was beaten by somebody. But, I do not see anything adverse to the prosecution in such a statement, as long as PW-2 Kailash

Zamre's evidence about his being dangerously assaulted and injured by the appellant is not discredited in any manner and that is not the case here. It is

quite possible that at that point of time, the injured person for reasons known to him, did not want to reveal anything more. It is also possible that at

that point of time, the injured person was more concerned about the immediate treatment to be administered to him rather than a detailed talk with the

Doctor. But, a guarded or brief talk so made by the injured person with Dr. Shamim cannot be seen as falsifying his evidence before the Court,

especially when his evidence receives complete support from other eye-witnesses like PW-3 Dattarao Pandagale and PW-4 Manikrao Torkar and

also medical and circumstantial evidence. The argument of the learned Counsel for the appellant made in this regard is, therefore, rejected.

13.The above discussion would lead me to find that PW-2 Kailash is a reliable witness and his testimony can be safely accepted, which I do so. It

shows that in the night of 10/02/2007, at the village Chaodi, he was assaulted by the appellant by means of an axe, which assault resulted in his

sustaining bleeding injuries to his head, neck and shoulder.

14.It is true that no proper explanation is forthcoming from the prosecution witnesses as to how the clothes of the injured person were recovered from

his mother [PW-1]. But, I do not see this fact as giving rise to a doubt in the prosecution case against the appellant. It was for the Investigating

Officer to put the threads together and if he had missed some of the strings in the story, it would not mean that what the injured person has stated

before the Court is a complete falsehood. Rather the evidence on record shows that PW-2 Kailash had no reason to falsely implicate the appellant in

this crime. On the contrary, the evidence shows, it were the appellant, who was unhappy with PW-2 Kailash over his using an access passing through

appellant's field to the field of PW-2 Kailash. Admittedly, a civil suit on this issue was pending between them. So, there is a motive behind the crime

here which comes out as a palpable reason for the assault made by the appellant upon PW-2 Kailash and that adds only to the genuineness of version

of PW-2. In this background, seizure of clothes from the possession of PW-1 cannot be seen as doubtful, though there is no specific evidence showing

that the clothes of PW-2 Kailash were removed at some point of time and handed over to his mother PW-1. This fact, the absence of explanation

about seizure of clothes not from PW-2 Kailash but from his mother, was for the Investigating Officer to take care of. If he has not, surely we cannot

put the blame upon PW-2 Kailash and term him a lier only for this fact, when his evidence on it's own strength inspires confidence and not only that it

receives support from the other evidence as well.

15.Of course, the learned Counsel for the appellant disagrees. He submits that the motive theory is countered by the appellant by putting forth his own

theory of revenge. However, appellant's such defence is too for fetched.

16.There is a suggestion given to prosecution witnesses that it were PW-2 Kailash Zamre, who wanted to settle score with party of the appellant, as

one Ramrao Charole had caught red handed PW-2 Kailash Zamre indulge in some extramarital misadventure with his wife, one Sulochanabai, and

instead of naming Ramrao Charole, PW-2 Kailash Zamre chose the present appellant-Namdeo Charole, as a ploy to silence Ramrao Charole in the

matter. This defence is highly improbable in the facts and circumstances of the case. Except for giving such a suggestion, there is no material brought

on record by the appellant to show the reason why, instead of Ramrao Charole, the appellant was picked up by PW-2 Kailash Zamre to avenge

Ramrao Charole. One does not understand as to why a person would target another man leaving aside the man with whom he is aggrieved, to file a

false complaint, unless it is shown that in between these two persons, there was something that created an impression that hurt to one of them meant

silence of the other and vice-versa. That relationship has not been brought on record even as a reasonable probability. Therefore, the defence taken

by the appellant deserves rejection and is rejected accordingly. On the contrary, the admitted fact of a civil dispute going on between these two parties

would reasonably show that there was a reason for the appellant to carryout his attack upon PW-2 Kailash Zamre and this reason only highlights the

ring of truth in the evidence of PW-2 Kailash Zamre.

17.It is true that there is no Medico Legal Certificate adduced in the evidence by the prosecution and whatever medical evidence is there, it is in the

nature of evidence of PW-5 Dr. Rama Bajoriya and the progressive injury report. There is no explanation given by the prosecution for not producing

the Medico Legal Certificate. But, that does not make the progressive injury report doubtful. PW-5, Dr. Rama Bajoriya has stated that he had himself

examined the injuries suffered by the appellant and such examination was carried out by him at about 12:50 a.m. of 11/02/2007. He has stated that

there were three contused lacerated wounds, one over right temporal region which was bony deep, the second on the nape of neck and the third on

the right shoulder. He has also opined that there was an abrasion over right ear. His evidence shows that he had got CT Scan of these injuries done

and the result was that the head injury suffered by PW-2 Kailash Zamre was in the nature of fracture of right parietal bone. He also opined that CT

Scan further showed that there was extra dural hematoma in right parietal region, with displaced fracture of parietal bone and, therefore, he sutured

these injuries. On the basis of his such clinical examination analysis of CT Scan Report and perusal of the case-papers maintained by the hospital, he

issued a Progressive Injury Report vide Exh.111.

18.There is nothing in the entire evidence of PW-5 to express any doubt about his examining PW-2 Kailash Zamre and issuing the Progressive Injury

Report in the manner in which he has done it. Therefore, his evidence can be safely relied upon which I do so. Once, evidence of PW-5 is accepted,

as I have done now, it would mean that non-production of Medico Legal Certificate by the prosecution has become immaterial in the present case. His

evidence would also allay the fears expressed by the appellant that the assault could not be said to be upon head, neck and shoulder of PW-2 Kailash

Zamre because of some inconsistencies and omissions in the evidence of PW-2 Kailash Zamre and other eye witnesses. When Kailash Zamre

deposed before the court that he sustained bleeding injuries over his head, neck and shoulder, this very evidence, we can see, has received complete

support from the medical evidence, just discussed. Therefore, the argument of the learned Counsel for the appellant made in this regard cannot be

accepted.

19.The F.I.R. has been filed at about 05:00 p.m. of 11/02/2007. This has been seen by the appellant as a delay, not explained properly and so proving

to be fatal to the prosecution case. With due respect, I would disagree. It is an admitted fact that complainant PW-1 Laxmibai Zamre had initially

focused her attention on the wellbeing and care of her son PW-2 Kailash Zamre, who had suffered life threatening head injury because of the assault

made upon him by the appellant. Naturally, she first spent all her energy, time and money towards achieving this goal and when she was satisfied that

she could turn her attention to other aspects of the case, she went to the police station and lodged a complaint against the appellant. Although, such

explanation has not been so eloquently spoken about by Laxmibai Zamre or other prosecution witnesses, it's emergence can be seen from the facts

and circumstances of the case coming to the fore through the evidence of PW-1 Laxmibai Zamre, PW-2 Dattarao Pandagale, PW-4 Manikrao Torkar

and PW-6 Hansraj Undirwade. Therefore, it cannot be said that the delay which has occurred in the present case has proved to be fatal to the

prosecution case.

20.I have already stated that the evidence of PW-2 Kailash Zamre has received support from the eye-witnesses like PW-3 Dattarao Pandagale and

PW-4 Manikrao Torkar. I have also found that most of the omissions have not been proved and whatever the omissions admitted by these witnesses

are there, they do not contradict the basic case of the prosecution. Same is true about some inconsistencies in their testimonies. Therefore, their

evidence has to be believed, which I do so.

21.An argument has been made on behalf of the appellant that as spot-panchnama [Exh.94] does not mention anything about the presence of light

when the incident occurred and there is no other evidence available on record to show the presence of light, evidence of PW-2 and other eye

witnesses cannot be believed. It is true that spot-panchnama is silent on this aspect. The other evidence is also wanting on presence of light or

otherwise. But, I must say, this has not affected the prosecution case adversely. Though, the incident is of night, it is difficult to presume darkness

prevailing at the spot of incident at the relevant time because it was situated at the central place of village [Exh.94] and admittedly it was a village

Chaodi, a prominent place or square of a village surrounded by shops, which situation would raise a presumption, in the times in which we all live now,

in terms of Section 114 of the Evidence Act, of the spot being well lit. It was never the case of the appellant that village Amdapur had no electricity or

had it's electricity cut off. It was also not the case of the appellant that PW-2 Kailash or other witnesses had no opportunity to see or had not seen the

assailant. Rather, the suggestions given to these witnesses, especially PW-3, in their cross- examinations, show that it is acceptable to the appellant

that he was the assailant of PW-2 Kailash. The argument is, therefore, rejected.

22.The recovery of an axe at the instance of the appellant, as sought to be relied upon by the prosecution, however, cannot be accepted as a discovery

made under Section 27 of the Evidence Act for, admittedly, PW-4 Manikrao Torkar from whose possession the axe was recovered and seized had

well before the discovery statement was made, informed the Investigating Officer that he had snatched away the axe and it was in his possession.

But, the seizure of this axe from the possession of PW-4 Manikrao Torkar can be considered as an independent evidence connecting the appellant

with the crime. The suggestions given to PW-4 Manikrao Torkar by the appellant during the course of cross-examination, sufficiently indicate that it

was acceptable to the appellant that the axe was snatched away by Manikrao Torkar. The evidence of PW-4 Manikrao Torkar, on the whole,

highlights one aspect of the case which is that the axe came to be seized from him because he had it's possession retained after he had snatched it

away from the hands of the appellant and the appellant knew it. Such seizure of the axe from PW- 4, and not at the instance of the appellant, is

reliable and consistent with the prosecution case, leaving no doubt about the theory that it was taken away from the hands of the appellant by PW-4,

thereby saving PW-2 Kailash from receiving further injuries.

23.This axe, as per the C.A. Report [Exh.135], was stained with human blood, about which no satisfactory explanation has been given by the

appellant. This circumstance would connect the appellant with the crime alleged against him in the present case. Of course, in the seizure-panchnama

[Exh.97], it is not stated that the blade of axe at the time of seizure was seen to be stained with blood. But, the C.A. Report [Exh.135] notes presence

of the blood stains and says them to be of human origin. No doubt has arisen in prosecution evidence about this C.A. Report. There is no

circumstance present on record showing that the seized articles may have been tampered with or mixed with articles seized in other crime. Therefore,

non-mentioning of this fact appears to be a mistake of inadvertence or negligence on the part of the Investigating Officer, of which no benefit can be

given to the appellant. These facts distinguish themselves from the facts of Shri Yatin Laxman Pabale vs. The State of Maharashtra and another -

2015 ALL MR (Cri) 1299, in which there was also an unexplained delay in lodging F.I.R., which case has been relied upon by the appellant. As such,

this case would of no help to the appellant.

24.As per the C.A. Report vide Exh.137, blood group of appellant was ""A"". As per the C.A. Report vide Exh.136, the blood group of PW-2 Kailash

Zamre was ""B"" and as per the C.A. Report vide Exh.138 blood group of Sukhdeorao Zamre was ""O"". The clothes, the appellant wore at the time of

the incident, were discovered by him and seized at his instance and the evidence adduced by the prosecution in this regard is trustworthy, there being

no doubtful circumstances present in that evidence. Same is true about the seizure of the clothes of Sukhdeorao Zamre, who was the person who had

admittedly taken PW-2 Kailash Zamre along with other persons to the hospital. The clothes of the appellant worn by him at the time of the incident

and clothes of Sukhdeorao Zamre, all were found stained with blood at the time of their respective seizures. The C.A. Report vide Exh.135 shows that

the cut baniyan, the full-pant and the shirt worn by the appellant at the time of the incident were stained with blood of group ""B"". This very C.A.

Report also shows that the shirt and sando-baniyan worn by Sukhdeo Zamre at the time when he took PW-2 Kailash Zamre to hospital were also

stained with blood of group ""B"". The ""B"" blood group was of PW-2 Kailash Zamre and not of the appellant or Sukhdeorao Zamre. No explanation has

been given by the appellant about presence of blood stains of the blood group of the injured person on his clothes and of Sukhdeorao Zamre. These

circumstances would also connect the appellant with the offence with which he has been charged in this case.

25.Thus, I find that the prosecution has proved beyond reasonable doubt the fact that in the night of 10/02/2007 at village Chaodi, the appellant

dangerously assaulted PW-2 Kailash Zamre by giving him blows of axe on his head, neck and shoulder and left him seriously injured with blood oozing

from the injuries suffered by him at the spot of the incident. The head being a vital organ, any blow given to it by a weapon like an axe would be

sufficient to cause death in the ordinary course of nature unless some divine circumstances intervened, which circumstances, in the present case,

indeed played their helpful role. But, the fact remains that the axe blow was given to a vital organ like the head of PW-2 Kailash by the appellant and

so, it can be safely presumed that it was dealt with an intention or the requisite knowledge to cause death, though, it did not materialize into the death

because of the luck smiling on the victim. Such an act would, therefore, fall within the scope and ambit of an offence of attempt to commit murder.

The learned Additional Sessions Judge has rightly found the appellant to be guilty of such an offence and, therefore, I have no reason to make any

interference with the finding recorded by the learned Additional Sessions Judge, in this regard.

 26] About the punishment imposed upon the appellant, there are no mitigating circumstances shown to enable me to take a further lenient view in

the matter. The seven years of simple imprisonment imposed upon the appellant is sufficiently lenient and in my view, no further scope has been left to

reduce it to even lesser period of imprisonment. There is thus no merit in the appeal and the same deserves to be dismissed and it stands dismissed.