(1) Cri. Appeal No. 347 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Appeal No. 347 of 2011 Chhalasingh s/o. Kishansing Chavan, Age : 29 years, Occupation : Shikari, .. Appellant R/o. Railway Station Road, (Original Taluka : Basmath, Dist. : Hingoli. accused no.1) versus The State of Maharashtra. .. Respondent. ....................... Mr. Satej S. Jadhav, Advocate, holding for Smt. S.S. Jadhav, Advocate, for the appellant. Mr. S.G. Nandedkar, Additional Public Prosecutor, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. Date of reserving the judgment : 13th December 2011. Date of pronouncing the judgment : 21st December 2011. (2) Cri. Appeal No. 347 of 2011 JUDGMENT : 1. Heard learned respective Counsel for the parties. 2. The challenge in this appeal is to the conviction and sentence inflicted upon the appellant (original accused no.1), by way of judgment and order dated 29th June 2011, rendered by the learned Additional Sessions Judge, Basmathnagar, in Sessions Trial No. 10/2011, thereby convicting the appellant for the offence punishable under Section 332 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default of payment of fine, to suffer simple imprisonment for three months. 3. The factual conspectus and shorn of details of the prosecution case are as follows : (a) On 2nd August 2010, at about 10 p.m., the complainant PW 9 Sk. Gausoddin Sk. Bahib was standing in front of Basmath Police Station along with PW 1 Police Head Constable Sk. Raheem, and PW 2 Police Head Constable Prakash Neval after the roll call. At this juncture, they saw two persons of Shikalkari community proceeding towards Karanja Chowk on motorcycle driving it rashly, and hence, complainant PW 9 Sk. Gausoddin (3) Cri. Appeal No. 347 of 2011 suspected that one of the accused who had absconded during combing operation of 13th July 2010. Hence, all the said three Police personnel followed the said motorcycle on two different motorcycles. However, motorcycle driven by the said two persons of Shikalkari community i.e. accused stopped in front of Shradha Bar at Basmathnagar, and accused no.1 i.e. appellant herein entered into the said Bar while accused no.2 Gulabsing was standing near the motorcycle. Hence, the complainant and other Police personnel made enquiry with the accused who was standing near the motorcycle about his name and the name of the other accused. At this juncture, accused no.2 came out of the Bar and enquired with the Police personnel, as to who they were enquiring about his name. Thereupon, the complainant disclosed his identity stating that he was a Police personnel. However, the said accused threatened to kill them and accused no.1 i.e. appellant herein gave a blow of sword on the chest of the complainant, but the complainant warded the said blow of sword by his wrist of left hand and thereby he sustained bleeding injury. Thereupon, PW 1 Police Head Constable Sk. Raheem and PW 2 Police Head Constable Prakash Neval tried to catch the said accused, but he assaulted them also by means of sword and thereby they also sustained bleeding injuries on their persons. Thereafter, accused no.2 started the motorcycle and both of them fled away from the spot of incident. (4) Cri. Appeal No. 347 of 2011 (b) Thereafter, the said personnel i.e. complainant PW 9 Sk. Gausoddin, PW 1 Police Head Constable Sk. Raheem and PW 2 Police Head Constable Prakash Neval went to Sub-District Hospital, Basmath, and thereafter, PW 9 Sk. Gausoddin approached Basmath Police Station where PW 10 P.S.I. Subhash Thembale was on station diary duty with whom complainant PW 9 Sk. Gausoddin lodged the report and PW 10 PSI Subhash Thembale scribed the same and crime was registered against the accused under C.R. No. 107/2010. Accordingly, criminal law was set into motion and PW 10 PSI Subhash Thembale visited the spot and prepared panchanama Exhibit 44 in the presence of Panchas. Moreover, he recorded statement of the complainant, other injured persons and witnesses. Moreover, blood stained clothes of the victims injured were seized under the seizure panchanama at Exhibits 25 and 27 respectively. (c) Thereafter, on 6-8-2010, the appellant herein, namely, Chhalasingh was arrested and shirt worn by him was seized under the seizure Panchanama Exhibit 46. On 7-8-2010, one motorcycle came to be seized which was lying in front of house of the appellant. Moreover, the incriminating weapon i.e. sword in question was seized at the instance of the appellant herein under the memorandum of panchanama Exhibit 47 which was (5) Cri. Appeal No. 347 of 2011 recovered from thorny shrub situated in front of house of the appellant and the same was seized under the recovery panchanama Exhibit 48. Thereafter, accused no.2 Gulabsing i.e. acquitted accused came to be arrested on 15-9-2010. It is further case of the prosecution, that on 14-10-2010, said articles were sent to Chemical Analyser for examination and report along with covering letter Exhibit 49. After filing of charge sheet, Chemical Analyser's report dated 23-3-2011, Exhibit 18, was received and the same was produced along with charge sheet. (d) PW 8 Dr. Chandrashekhar Bhalerao examined the three victims, namely, PW 9 Sk. Gausoddin, PW 1 Sk. Raheem, and PW 2 Prakash Neval, and issued injury certificates at Exhibits 36, 37 and 38, respectively. (e) After completion of investigation, PW 10 PSI Subhash Thembale filed charge sheet against both the accused before Judicial Magistrate (First Class), Basmath, for the offences punishable under Sections 307, 353, 332, read with Section 34 of Indian Penal Code. Since the offence punishable under Section 307 of Indian Penal Code was exclusively triable by the Court of Sessions, learned Judicial Magistrate (First Class), Basmath, committed the said case to the Court of Sessions from trial. Accordingly, learned Additional Sessions Judge, Basmath, (6) Cri. Appeal No. 347 of 2011 framed charge against the accused on 7-3-2011 for the offence punishable under Sections 307, 333, read with Section 34 of Indian Penal Code. However, the accused persons pleaded not guilty to the said charges levelled against them and claimed to be tried. 4. To substantiate the charges levelled against the accused persons, the prosecution has examined as many as ten witnesses as mentioned below : PW 1 - Shaikh Raheem s/o. Shaikh Nanhu, Police Head Constable - Victim. PW 2 - Prakash s/o. Sahebrao Newal, Police Head Constable - Another victim. PW 3 - Raju s/o. Parusa Trimalle, Owner of Pan shop besides Shradha Bar - Eye witness (Turned hostile). PW 4 - Moin Quadri s/o. Mustaq Quadri - Panch to spot panchanama of seizure of motorcycle (Turned hostile). PW 5 - Punjaji s/o. Harji Pund - Panch to seizure panchanama of clothes of victim (Turned hostile). (7) Cri. Appeal No. 347 of 2011 PW 6 - Manik s/o. Digambar Puri - Panch to seizure panchanama of clothes of accused (Turned hostile). PW 7 - Shankar s/o. Jivanaji Nadare - Panch to memorandum of panchanama and recovery panchanama (Turned hostile). PW 8 - Dr. Chandrashekhar s/o. Sakharam Bhalerao - Medical Officer who examined the victim. PW 9 - Shaikh Gausoddin s/o. Shaikh Habeeb, Police Head Constable - Complainant. PW 10 - Subhash s/o. Keshavrao Thembale, Police Sub-Inspector - Investigating Officer. 5. The defence of the accused / appellant is of total denial and it is specifically stated by him, that there was riot at Kanipura area of Basmath in which PSI Pawar sustained injuries. He also stated that persons of his community were arrested in that matter, and hence, he has been implicated in the present case falsely, and accordingly, he claimed to be innocent. However, neither he examined himself on oath nor examined any defence witness to substantiate his defence. 6. After considering oral, documentary and medical evidence adduced / produced by the prosecution, learned trial (8) Cri. Appeal No. 347 of 2011 court acquitted accused no.2, namely, Gulabsing, but convicted present appellant i.e. original accused no.1, namely, Chhalasingh, for the offence punishable under Section 332 of Indian Penal Code, and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default of payment of fine, to suffer simple imprisonment for three months.. Being aggrieved and dissatisfied by the said judgment and order of conviction against the appellant, he has preferred the present appeal challenging the same and prayed for quashment thereof. 7. In order to deal with the submissions advanced by the learned Counsel for the parties, it is necessary to advert to the material evidence adduced / produced by the prosecution, and in the said context, coming to the testimony of the complainant PW 9 Sk. Gausoddin, who has stated that the incident took place on 2nd August 2010, at about 10.00 p.m. in front of Shradha Bar, Basmath, and before that, he was talking to Police Head Constable PW 1 Sk. Raheem, and Police Head Constable PW 2 Prakash Neval, in front of Basmath Police Station, when he saw two persons of Sikalkari community proceeding towards Karanja Chowk on a motorcycle by driving the same rashly, and therefore, he suspected that one of that persons was an accused who absconded during combing operation of 13th July 2010. Accordingly, they followed the said persons on their motorcycle (9) Cri. Appeal No. 347 of 2011 and saw that the said motorcycle of the accused was stopped at Shradha Bar and one of those persons went inside the Bar and another was standing near the motorcycle. Hence, they enquired from the accused standing near motorcycle about his name and he gave his name as Gulabsing. At this juncture, another accused came outside the Bar and asked as to who they were enquiring about their names. Thereupon, complainant PW 9 Sk. Gausoddin told that they were the Police. However, the appellant herein told them that "Koi Police nahi Tumhare Ko Khatam Kar deta hoon". Thereafter, he gave a blow of sword on his chest, but same was warded by the complainant by his left hand and thereby he sustained bleeding injury of his wrist joint of his left hand. At that time, PW 1 Police Head Constable Sk. Raheem and PW 2 Police Head Constable Prakash Neval tried to catch hold of accused Chhalasingh. However, accused gave blows of sword on their persons and thereby PW 1 Sk. Raheem sustained bleeding injury on his back and PW 2 Prakash Neval sustained bleeding injury over his right arm. In the meantime, accused no.2 started motorcycle and gave call to accused no.1 i.e. appellant herein, Chhalasingh and thereaftyer both of them fled away from the spot. 8. PW 9 Sk. Gausoddin further stated that as all the three Police employees were having injuries, firstly they approached (10) Cri. Appeal No. 347 of 2011 Sub-District Hospital, Basmath, and thereafter, PW 9 Sk. Gausoddin lodged report against the accused and it bore his signature which is produced at Exhibit 40. PW 9 Sk. Gausoddin also identified the sword i.e. incriminating weapon. Moreover, he identified his shirt and pant which was seized under the panchanama Exhibit 41 i.e. Articles "D" and "E", respectively. 9. During cross examination, PW 9 Sk. Gausoddin stated that he was attached to Dy.S.P. Office, Basmath, since 10th July 2009. He also stated that combing operation was conducted by Police Station, Basmath, on 13th July 2010. He further stated that on the relevant day i.e. 2nd August 2010, he was standing in front of Police Station to return to his house after completion of his duty. However, he stated that he has no knowledge about the riot which took place about one year prior to the incident at Kanipura, Basmath, between persons of Shikalkari community and Muslim community. He further stated that one Police employee, namely, Pawar sustained injury therein. Hence, suggestion was given to him that in order to take revenge of that incident, the complainant involved accused falsely in the present crime, but the same was denied by him. It was suggested to him that he himself created injury on his person and blood stained clothes were planted on his person and the appellant was implicated in the present case falsely, but the same was denied by (11) Cri. Appeal No. 347 of 2011 him. 10. Coming to the testimony of PW 1 Sk. Raheem s/o. Sk. Nanhu, another victim, who deposed that the incident took place on 2nd August 2010, at about 10.00 p.m. and he was serving as Police Head Constable at Police Station, Basmath. He also stated that after roll call was over, he was standing in front of the Police Station along with PW 9 Sk. Gausoddin and PW 2 Prakash Neval. At this juncture, they saw two persons of Shikalkari community proceeding on a motorcycle towards Karanja Chowk. Hence, PW 9 Sk. Gausoddin informed that one of the said persons to be an accused who had run away during the combing operation on 13th July 2010. Hence, the said Police personnel i.e. PW 1 Sk. Raheem, PW 2 Prakash Neval and PW 9 Sk. Gausoddin followed them on another motorcycle and when they reached near said accused persons, they found that those persons had taken their motorcycle towards Shradha Bar and driver of the motorcycle stopped it at Shradha Bar and one of them went inside Bar while other was standing near motorcycle. Hence, Police personnel confirmed that the person standing near the motorcycle was accused no.2 Gulabsing, and the person who went inside the Bar was accused no.1 i.e. appellant herein, namely, Chhalasing. Hence, Police personnel made enquiry about their names. Thereupon, appellant Chhalasing came out of (12) Cri. Appeal No. 347 of 2011 the Bar and asked them as to who were enquiring about his name. Hence, Police personnel disclosed their identity. However, appellant told that who is Police Nayak and he would kill him, and thereupon, immediately he gave blow of sword on the chest of PW 9 Sk. Gausoddin, who warded off the blow of sword by his wrist of left hand and thereby he sustained bleeding injury on his wrist. Accordingly, PW 2 Prakash Neval tried to catch hold of accused Chhalasing, but he assaulted PW 2 Prakash Neval by means of sword on his chest and arm, and thereby he sustained bleeding injury on his chest and arm. He further stated that the accused Chhalasing tried to assault him by means of sword, but when he tried to save himself, the blow of sword hit on his back, and thereby he sustained bleeding injury over his back. Thereafter, both the accused fled away by the said motorcycle, and hence, the injured were removed to Sub-District Hospital, Basmath, and PW 9 Police Nayak Gausoddin lodged report about the said incident. He further stated that the Investigating Officer seized his shirt in the presence of Panchas under the seizure panchanama Exhibit 25. 11. In the cross examination, PW 1 Sk. Raheem stated that they were required to attend Police Station at 8.00 p.m. for giving attendance / roll call, and during roll call, he was assigned duty of the next day morning work. He admitted that after roll (13) Cri. Appeal No. 347 of 2011 call, his duty was over and he was about to proceed to his house. He also stated that he was not in the combing operation which took place on 13th July 2010. As regards, PW 9 Sk. Gausoddin, he stated that he was attached to office of Sub-Divisional Police Officer on the relevant day. He further admitted that all the Police Officers were in civil dress at the time of incident. He further admitted that he was not knowing any of the accused before the incident, as well as, accused were also not knowing them. He further stated that about 10 - 15 persons had gathered near the spot of incident. He also admitted that Article "A" shirt was not torn towards its back side, as well as, there were no blood stains thereon. A suggestion was given to him that no incident, as stated by him, had ever taken place, but the same was denied by him. It was also suggested to him that accused had not visited Shradha Bar on the date of incident nor the Police personnel followed them, but the same was also denied by him. 12. That takes me to the deposition of PW 2 Prakash Neval, third injured person, who has stated that he was serving as Police Head Constable at Police Station, Basmath, on 2nd August 2010, and at that time, he was along with Police Nayak PW 9 Gausoddin and Police Constable PW 1 Sk. Raheem were standing in front of Police Station, Basmath, at about 10.00 p.m. At this juncture, they saw two persons of Shikalkari community (14) Cri. Appeal No. 347 of 2011 proceeding on a motorcycle towards Karanja Chowk. At that time, PW 9 Sk. Gausoddin stated that one of them seems to be an accused who had run away on 13th July 2010 during combing operation. Therefore, PW 2 Prakash Neval, PW 9 Sk. Gausoddin and Police Constable PW 1 Sk. Raheem followed them and noticed that two persons of Shikalkari community were standing near Shradha Bar. One of them went inside Bar and another was standing near motorcycle. Hence, Police personnel made enquiry about names of the persons with the person standing near motorcycle. At this juncture, appellant herein, who was inside Bar, came out of the Bar armed with sword and asked the Police personnel, who were they to know about their names, and the appellant stated that he would kill them and immediately attacked on PW 9 Sk. Gausoddin with sword who warded off the said blow by wrist of his left hand, but thereby PW 9 Sk. Gausoddin sustained bleeding injury on his wrist of left hand. The appellant also gave blow of sword on the chest of PW 2 Prakash Neval and thereby sustained bleeding injury on right side of his chest and right arm. The appellant also assaulted PW 1 Sk. Raheem by means of sword and thereby he sutained bleeding injury on his back. At this juncture, accused no.2 Gulabsing started his motorcycle, as well as, accused no.1 Chhalasing ran away from the spot by the said motorcycle. Thereafter, injured persons went to Sub-District Hospital, Basmath, and PW 9 Sk. Gausoddin (15) Cri. Appeal No. 347 of 2011 lodged report of the incident. PW 2 Prakash Neval also stated that during investigation, Investigating Officer seized his shirt which is identified by him as Article "C". Moreover, Investigating Officer prepared seizure memo about seizure of his shirt and which is produced at Exhibit 27, and the incriminating article sword was identified by him and the same is marked as Article "B". 13. During cross examination, PW 2 Prakash Neval stated that he was standing near the Police Station on the day of the incident after completion of his duty. Moreover, he also stated that PW 9 Sk. Gausoddin had not attended the roll call at Police Station, Basmath, as he was attached to Dy.S.P. Office. He has further stated that he was not knowing any of the accused before the incident. As regards the offences pending against accused no. 1, he stated that he cannot say as to which offences were pending against him without seeing the record. A suggestion was given to him that the injuries on his right arm and right side of chest were created to implicate the accused falsely, but the same was denied by him. He also admitted that prior to one year of the incident, there was quarrel between Police Officers and persons of Sikalkari community at Kazipura area of Basmath, and in that incident, one Police Head Constable Pawar sustained injuries over his head. Hence, suggestion was given to him that in order (16) Cri. Appeal No. 347 of 2011 to take revenge of that matter, Police personnel have involved accused in the present case falsely, but the same was denied by him. 14. That takes me to the testimony of PW 8 Dr. Chandrashekhar Bhalerao, who has stated that on 2nd August 2010, he was serving as Casualty Medical Officer at Sub-District Hospital, Basmath, and on that day, he examined Sk. Gausoddin and on his examination, he found incised would having size of 10 cms. X 3 cms. X 4 cms. on his left hand, lateral aspect of wrist. He also stated that he also examined PW 1 Sk. Raheem and found incised wound admeasuring 8 cms. X 1/4 cms. X 1/4 cms. on his back towards right side from midline towards scapula. He further stated that he also examined PW 2 Prakash Neval and found following injuries on his person : (i) Incised wound having size of 6 cms. X 1/4 cms. X 1/4 cms. at his right arm. (ii) Incised wound having size of 4 cms. X 1/2 cms. X 1/2 cms. on right side of his chest above nipple, and (iii) Incised wound having size of 5 cms. X 1/2 cm. X 1/2 cm. on left arm towards dorsal aspect. (17) Cri. Appeal No. 347 of 2011 He further stated that accordingly he issued injury certificates which are produced at Exhibits 36 to 38. He also stated that the injuries sustained by all above three patients were simple in nature, but caused by hard and sharp object within 24 hours of his examination. He further stated that all these injuries are possible by blow of sword like Article "B". However, in the cross examination, he admitted that the injuries mentioned in Exhibit 36 and Exhibit 38 can be self-inflicted. He also stated that the force of the blow was not much, and therefore, the injuries were simple in nature. 15. On the background of the aforesaid material evidence adduced / produced by the prosecution, learned Counsel for the appellant canvassed that out of ten witnesses examined by the prosecution, five witnesses turned hostile and did not support the case of the prosecution, which included the eye witnesses and Panch witnesses to the seizure panchanama, spot panchanama, memorandum as well as recovery panchanamas, and therefore, seizure of the motorcycle and clothes of the victim, as well as, clothes of the accused, and more particularly, seizure of the sword at the instance of the appellant, under the memorandum and recovery panchanama have not been proved through independent witnesses, and hence, the said seizure of the articles cannot be construed as incriminating against the appellant herein. (18) Cri. Appeal No. 347 of 2011 16. It is also canvassed by the learned Counsel for the appellant, that PW 1 Sk. Raheem has admitted in his deposition that he was not on duty and was standing outside the Police Station at the time of incident after roll call was over, and hence, it is submitted that there was no question of discharging official duty. Moreover, learned Counsel for the appellant also argued that PW 9 Sk. Gausoddin admitted that he was not attached to Basmath Police Station, out of which he was standing, but he was attached to Dy.S.P. office, and he further admitted that at the very time of incident, he was not on duty. Hence, learned Counsel for the appellant submitted that all the Police personnel i.e. victims, namely, PW 9 Sk. Gausoddin, PW 1 Sk. Raheem and PW 2 Prakash Neval were in civil dress and they had given their roll call and their duty was over, and accordingly, they were not on duty at the time of occurrence of the incident and even as per his evidence, he was assigned duty of the next day morning work, and hence, there was no question of discharge of official duty by them. Moreover, PW 10 Subhash Thembale, Investigating Officer, admitted in the cross examination that he has not filed any document to show that all Police personnel were on duty, and consequently, there is no question of commission of offence