1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.435 OF 2007 Bapurao Laxman Sawant ) age 45 years, Occ.: Service ) R/o. Nidhal, Taluka Khatav, ) District Satara (at present in ) Kolhapur Central Jail) ) .... Appellant. V/s 1) State of Maharashtra ) Through Senior Inspector ) of Police, Vaduj Police Station ) Dist: Satara ) ) 2 Turab Ali Usman Khan Pathan ) aged 47 years, Occ: Service, at ) postVaduj, Taluka Khatav, ) Dist: Satara ) ... Respondents ----- Mr. A.Q. Ansari for the appelant. Mr. S.S. Pednekar, APP for the State. ----- CORAM: V.M. KANADE, J. DATE : 20TH OCTOBER, 2008 ORAL JUDGMENT: 1. Heard Mr Ansari, the learned Counsel appearing on behalf of the appellant at length and the learned APP for the State. 2. Appellant has been convicted for the offence punishable under sections 307, 324, 504, 506 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years, six months and one month respectively. 2 3. Prosecution case is that the accused was working as a sweeper at the Government Milk Cold Storage Center, Vaduj. One Turab Pathan was Lab-assistant and Shriram Desai, Ashok Bhingardive, Ankush Katkar, Ramesh Kharat and Sanjay Rupnavar were also working in that Center and all of them were government servants. 4. Prosecution case is that on 17/1/2005, at 8.00 a.m., the accused went to the Center and questioned Shriram Desai why he was marked absent on the earlier day. He, therefore, abused every one in general and left the place and came back at about 10.30 a.m with an axe in his hand. He entered the office. At that time, Turab Pathan was sitting on one chair and was reading news-paper. The appellant – accused gave an axe blow on his right ear and another blow on his head. Another person Rupnavar was also there. Thereafter, the accused tried to assault Rupnavar with his axe. On hearing shouts of Rupnavar, Desai, Mali & Katkar rushed there and they managed to get the axe out of the hands of the accused. The accused, however, ran away from the spot. Turab Pathan was taken to the Rural Health Center and the FIR was lodged by Rupnavar. The doctor at the Rural Health Center advised police to shift Pathan to the hospital at Satara and, accordingly, he was taken to Girija Hospital at Satara where he was indoor patient from 17/1/2005 to 27/1/2005. Thereafter, the accused was arrested. Panchanama was made. The clothes of the accused and the injured were seized under the panchanama and they were sent to Chemical Analyser for analysis. Charge-sheet was filed against the accused. Prosecution examined in all 13 witnesses. On the basis of the evidence of eye witnesses and the other circumstantial evidence, the accused has been convicted by 3 the Trial Court. 5. Mr. Ansari, the learned Counsel appearing on behalf of the appellant has taken me through the judgment and order of the Trial Court as also the notes of evidence of the witnesses. He submitted that the prosecution case cannot be relied upon. He submitted that though the witnesses had snatched an axe from the hands of the accused, they allowed him to run away and, therefore, their testimony could not be relied upon. He further submitted that the statement of P.W. 1 also could not be relied upon since there were number of contradictions in his statement which were brought on record in the cross-examination. He further submitted that the Trial Court ought to have noted that, in the evidence of Anil Tukaram Pawar, he has stated that he had taken charge on 7/2/2005 and thereafter he has recorded the statement of Khade on 16/2/2005. However, the prosecution has not examined Khade. He submitted that non- production of material witness was, therefore, fatal to the prosecution case. In support o the said submission, he relied upon the judgment of the Apex Court in Mobin Vs. State of U.P reported in 2001 Cri. L. J. 2098. He further submitted that the Trial Court has not taken into consideration the fact that the original copy of the FIR was not sent to the Magistrate in the prescribed form as required under section 158 of he Criminal Procedure Code. He further submitted that number of FIR was not disclosed and it is not mentioned as to who had recorded the FIR. He submitted that, therefore, an adverse inference should be drawn against the prosecution. He further submitted that a certified copy of the judgment was not given free of cost immediately after the pronouncement of judgment as required under section 363 of the Criminal Procedure Code. 4 6. There is no substance in the submissions made by the learned Counsel for the appellant. I have perused the evidence of the injured Turab Pathan – P. W. 7. He has stated the sequence of events. He himself was injured in the incident. His evidence is corroborated by P. W. 6 – Sanjay Rupnavar. The evidence of these two witnesses has been further corroborated by P.W.1 – Shriram Desai, P.W.2 - Ashok Bhingardive. This is further corroborated by P.W.9 – Dr Ashok Tasgaonkar who had treated Turab Pathan at the Rural Health Center. He has produced a medical certificate which clearly shows that Injury Nos. 1 and 2 were incised wounds on right site of the face and right parietal region. These two injuries were grievous and fatal. The other injuries were, one incised wound and the other was multiple abrasions. The Trial Court, in my view, was justified, therefore, in holding that the prosecution has proved its case beyond the reasonable doubt. No case is, therefore, made out for setting aside the finding recoded by the Trial Court. The conviction of the appellant - accused, therefore, will have to be confirmed. 7. Mr. Ansari, the learned Counsel appearing on behalf of the appellant, submitted that the appellant is in jail since 19/1/2005 and he is in jail, therefore, for three years and 9 months. It is submitted that the appellant had acted in a fit of rage and it was not his intention to kill Pathan. He submitted that the sentence, therefore, may be reduced. 8. Taking into consideration the facts and circumstances of the case, in my view, it would be appropriate if the sentence is reduced from 7 years to 6 years. 5 9. Accordingly, the following order is passed:- O R D E R The conviction of the appellant is confirmed. However, the sentence imposed by the Trial Court is reduced from 7 years to 6 years. Appeal is partly allowed. Appeal is disposed of. (V.M. KANADE, J.)