Sudhir Johare vs The State Of Maharashtra

Appellant hereby challenges the judgment and order of conviction dated 19.03.2016 rendered by the learned Additional Sessions Judge, Bhusawal in Sessions Case No.64 of 2014 for offence under Sections 324, 435 and 504 of Indian Penal Code [IPC].

In brief, case of prosecution in trial Court was that, one Ramesh Pawar PW4 was selling kerosene over kerosene cart. That time, accused/appellant came and questioned him how he was selling kerosene without permission from Grampanchayat. At that time, PW2 injured, who was standing nearby, apprised appellant that people are in need of kerosene and at that time, appellant, after abusing PW2 in filthy language, whisked out sword which he had concealed behind his back beneath the shirt and gave blow with it on the head of PW2. Thereafter, it is alleged that, accused also set fire to the very kerosene cart. On report of PW1, crime was registered, duly investigated and accused came to be charge-sheeted.

There was also a cross-case at the instance of the appellant, wherein he alleged that the injured witness had assaulted him with a knife. On the basis of the said complaint, a separate trial was conducted vide Regular Criminal Case No.02 of 2015. In the trial against the present appellant, the prosecution rested its case on the testimonies of ten witnesses and the same was duly appreciated and learned Additional Sessions Judge, returned the guilt against the appellant for above offences under IPC, which is precisely the subject matter of instant appeal.

PW1, the informant, stated in paragraph No. 2 of his examination-in-chief that on 03.01.2010, at around 8.30 a.m., while he was standing in his courtyard, Ramesh was selling kerosene from a kerosene cart. At that time, the present appellant, Sudhir, came there and questioned Ramesh as to why he was selling kerosene without obtaining permission from him, as he was a member of the Gram Panchayat. At that time, the injured Mohammad told the appellant that Ramesh was selling kerosene because people required it, upon which, it is alleged that, after abusing Mohammad, the appellant hit him on the head with a sword. PW1 further stated that Mohammad was taken to the Civil Hospital, where PW1 lodged the FIR.

The initial part of his cross-examination is about the Fair Price Shop and about the directions issued by the Tahsil authorities. He admitted that the appellant was a member of the Gram Panchayat. In paragraph No.4 of his cross-examination, he was questioned about the cross-case, which he denied.

PW2 injured, in his evidence at Exhibit-11, reiterated the story of PW1 about Ramesh selling kerosene by use of cart, appellant questioning him and injured informing him about need of people and in anger, appellant after abuse, took out sword and hit it on the head causing bleeding injury. He also deposed that accused open lid of the kerosene drum and ignited it. While under cross-examination, he admitted that, he runs a Fair Price Shop and that there to be single kerosene vendor in the village. He denied that he was examined and discharged same day. He admitted that Crime NO.02 of 2010 was registered against him and about case pending against him in the court of Magistrate. Then he is asked about people of Gavli community residing in the vicinity.

PW3 is the medical expert, who examined PW2 and issued injury certificate Exhibit-13 stating that the injuries to be simple in nature. In cross-examination, he admitted that muddemal sword is not sharp edged and that superficial injury cannot be caused with muddemal sword.

PW4, Ramesh, the vendor of kerosene, deposed at Exhibit-14 that on 03.01.2010, at around 08.30 a.m., while he was selling kerosene, the accused-appellant came there and questioned him. At that time, the injured told the accused that kerosene could be sold as it was attached to his shop. He deposed that the accused did not allow him to sell kerosene and set his kerosene cart on fire. He also deposed that there was a quarrel between accused and PW2 Mohammad, after which the accused hit Mohammad on the head with a sword. While under cross-examination, he admitted that Mohammad also assaulted appellant with knife, as a result of which FIR was lodged. He admitted that people were pulling the cart and so he was frightened and also admitted that something more would happen and so he left.

PW5 is the panch to spot panchanama.

PW6 is the carrier, who carried muddemal for C.A. analysis.

PW7 is the panch to seizure of clothes of PW2 injured.

PW8 is the panch to the memorandum of disclosure and the recovery of the sword under Section 27 of the Evidence Act.

PW9, Ramzan, also claimed that while he was standing on the road, he witnessed the incident at around 8.30 a.m. He deposed that the appellant questioned Ramesh about selling kerosene, whereupon the injured Mohammad came there. Initially, the appellant hurled abuses and then hit Mohammad on the head with a sword, causing a bleeding injury, as a result of which Mohammad fell down. While under cross-examination, he denied that Mohammad had assaulted appellant with knife. He also admitted that if burnt matchstick is put in kerosene tank, it explodes.

PW10 is the Investigating Officer, who narrated all the steps taken by him during investigation till filing of charge-sheet.

Pointing to above evidence, learned Counsel for the appellant would submit that there is false implication. According to him, there are cross-complaints and there is admission to that extent by prosecution witnesses. Learned Counsel for the appellant expresses surprise as to how the learned Trial Court drew inference and conclusion that accused was the aggressor. He pointed out that admittedly, the appellant has also suffered injuries, but prosecution has not explained it and, therefore, adverse inference needs to be drawn against prosecution. On this count, he seeks reliance on the judgment of Hon’ble Apex Court in the case of Lakshmi Singh vs. State of Bihar, 1976 (1) SCC (Cri) 671.

Indeed, there seem to be cross-cases. Law is fairly settled by series and catena of judgments that in such eventuality, the trial Judge has to deal and decide both cases distinctly and separately by applying the evidence that has emerged in that respective case. Here, as pointed out by learned APP, learned trial Court has appreciated the evidence adduced in this case i.e. Sessions Case No.64 of 2014. The evidence that has emerged is apparently put to scrutiny for arriving to the conclusion. There is nothing to indicate that the learned trial Court has borrowed or relied upon the evidence in the counter-case. The learned trial Court has merely made a passing reference to the same in paragraph No.20 of the judgment. Therefore, the approach of the learned trial Court was within the legal premises. Consequently, above submission holds no substance.

The next limb of his argument is that, here, though allegations are of use of sword, medical expert has categorically admitted that the sword was blunt and was not capable of causing injury as is reflected in the medical certificate.

On re-appreciation of evidence of medical expert PW3, it is noticed that doctor has given dimensions of the injuries over the scalp region and in examination-in-chief itself has stated that injury is possible by sharp and hard weapon. Prosecution seems to have confronted medical expert with the muddemal sword, upon which he has stated that said injury is possible. In examination-in-chief itself, doctor has described the nature of injury as simple in nature and injury to be fresh. Mere admission in cross-examination that muddemal sword is not having sharp edge and that injury mentioned in the certificate cannot be caused with muddemal sword, expert's testimony in the examination-in-chief cannot be washed away completely. Moreover, it is noticed that the learned trial Judge has undertaken the exercise of personally verifying the muddemal and has recorded a finding that the sword is somewhat sharp. Even otherwise though it is blunt sword, injury is indeed shown to be caused and it is affirmed and certified by medical expert. Hence, even above submission raised by the learned Counsel for the appellant has no force.

Yet another ground raised is that, only interested witnesses are examined. However, it is not so. Here, there is not only injured witness account, but even evidence of informant PW1 as well as PW4, who was the very kerosene vendor, whose activity of selling kerosene, was objected by appellant. There is also evidence of PW9, who is also independent witness. These witnesses are shown to be natural witnesses, whose presence at the spot need not be doubted. They have all given consistent account of accused questioning Ramesh and on indulgence of injured, he being abused and being hit with sword. Moreover, here, there is recovery of sword at the instance of appellant. PW8 panch has deposed to that extent. Recovery is from beneath the pipe, a site which was to the exclusive knowledge of appellant.

By pointing out to the evidence of PW9, attempt is made by learned Counsel for the appellant to show that according to this witness, if burning matchstick is put in a drum, then there is possibility of explosion, but as there was none. Prosecution case to that extent ought not to have been accepted by the learned Trial Court. However, here, it is noticed that prosecution witnesses including the cart puller has categorically stated and defined the role of appellant for putting burning matchstick in the kerosene tank, as a result of which it caught fire.

To sum up, here, there is convincing evidence on the point of accused initially abusing PW2 in filthy language and thereafter, putting to use article like sword by hitting it on the head. There is direct eye witness account including that of injured. To the extent of occurrence and assault, defence could not dislodge testimonies of prosecution witnesses. Therefore, indeed, offences under Sections 324, 435 and 504 of IPC are made out by prosecution in the Trial Court.

Learned Counsel for appellant, at the end, would submit that if the court is not convinced with the above case put forth by the appellant and if at all court reaches to the conclusion that prosecution has proved the case beyond reasonable doubt, he would submit that, then taking the matter to be old and there to be no criminal antecedents, benefit of Probation of Offenders Act be extended to the appellant.

Learned APP has strongly opposed the same on the ground that there is use of deadly weapon like sword and that too, on the head and therefore, appellant does not deserve any leniency.

Indeed, as submitted by learned APP, appellant, who was already armed and carrying sword, has put it to use by assaulting on the head of PW2. However, it equally emerges that the incident occurred all of a sudden, that too, upon the intervention of PW2, when a conversation was taking place between the appellant and PW4 Ramesh. Therefore, occurrence was not planned and nor PW2 was the target. The incident seems to have happened in the rage of anger. Sight also cannot be lost of the fact that there is admittedly cross FIR by appellant. Taking such circumstances into consideration, in the considered opinion of this Court, taking into account the occurrence to be of 2010 i.e. of almost more than a decade back and there to be no reported criminal antecedents, sentence awarded by the learned Trial Court deserves to be reduced. Hence, the following order is passed :-

On pronouncement of this Judgment, learned Counsel for the appellant prays for six weeks time to surrender so as to enable him to approach the Hon'ble Apex Court.

Considering the above request made by learned Counsel for the appellant, though learned APP opposes for the same, six weeks time is granted to the appellant to surrender.