Gopal son of Mahadeo Wankhade vs The State of Maharashtra

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.