Allowed

Bapurao Dada Borate v. the State of Maharashtra

Bombay HC4 Jan 2012APEAL/51/2010

Case brief

AI extract

What is this about?

In an appeal regarding an attempt to murder mutilating a finger with a sword, the High Court set aside the conviction. The court held evidence insufficient due to the sole witness's lack of prior knowledge of the accused, absence of identification parade, and missing forensic and FIR reports.

What did the court decide?

Conviction and sentence set aside; appellant acquitted and set at liberty.

Bapurao Dada Borate Vs the State of Maharashtra — Cheating and Forgery | Bombay HC (2012)

¶1

1 APEAL 51 OF 2010

¶2

vks

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 51 OF 2010

¶4

WITH

¶5

CRIMINAL APPLICATION NO.1152 OF 2010

¶6

Shri. Bapurao Dada Borate, age: 29 years, Occn. Agriculturist resident of Mandave, Taluka: Malshiras, District: Solapur .. Appellant Orig. Accused. -versus

¶7

The State of Maharashtra .. Respondent.

¶8

Mr. Tejsweeta Kadam i/b Mr. Rahul Kate, for the appellant.

¶9

Ms. R. M. Gadhavi, APP for the Respondent State.

¶10

CORAM: R.C. CHAVAN, J. DATED: 4th January, 2012

¶11

Oral Judgment.

¶12

This appeal is directed against the appellant’s conviction by the learned Special Judge, Malshiras, for the offence punishable under Section 307 of the Indian Penal Code and sentence of R.I. for 7 years with fine of Rs.500/- or in

¶13

2 APEAL 51 OF 2010

¶14

default R.I. for one month, imposed upon the appellant, on conclusion Special Case NO.2 of 2006.

¶15

Facts which are material for deciding this appeal are as under:-

¶16

On 4^th March, 2006, at about 10.00 a.m., victim -Nanasaheb Gaikwad was walking by a busy street in the village with his three year old son. He was assaulted by the appellant, who came from behind. The appellant gave blows by sword which led to amputation of finger of the victim. The finger was chopped and was lying on the spot. Witnesses who had gathered informed the family of victim. The house of victim was just 500 feet away from the spot of incident. The victim was taken to hospital and a report was given whereupon an offence was registered. Since there were allegations about appellant having given caste based abuses to the victim, who belonged to Scheduled Caste, an offence punishable under Section 3(1) (x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was also registered. The investigation was conducted by the Deputy Superintendent of Police, who on conclusion of investigation sent the chargesheet to the learned Judicial Magistrate First Class, Malshiras who committed the case to the Court of Sessions at Malshiras.

¶17

APEAL 51 OF 2010

¶18

¶19

The learned Judge charged the appellant of offence punishable under Section 307 of the Indian Penal Code and Section 3(1) (x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all 8 witnesses in its attempt to bring home the guilt of the appellant. Injured person - Nanasaheb Gaikwad could not be examined as he met with death in a motor accident after the incident and before trial. After considering the prosecution evidence in the light of defence of total denial, the learned Judge held the appellant guilty and sentenced him as aforementioned. Aggrieved thereby the appellant is before this Court.

¶20

I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the record. P.W.1 - Tejashree Dhondiram Gaikwad, is an eye witness to the incident. She is incidentally niece of the victim. She states that on the incidental morning she was returning from her school when she saw one person coming from behind Nanasaheb Gaikwad, giving him blows by sword. She claimed to have gone to the house of Nanasaheb to inform the family members, who then carried the victim to the hospital.

¶21

4 APEAL 51 OF 2010

¶22

She stated that Nanasaheb informed his relations that the assailant was the present appellant.

¶23

P.W.2 – Gautam Damu Gaikwad, is the panch at spot panchnama which is at Exh.30. P.W.3 – Dnyaneshwar Sorte and P.W.4 - Baban Salvi are hostile panchas of memorandum of statement of appellant recorded by P.W.8 – Dy. Superintendent of Police - Nandkumar Thakur, which led to discovery of sword on the same day of incident. P.W.5, Deelip Attar witnessed the arrest panchnama which is at Exh. 36. P.W.6 – Laxman Mane is a hostile witness. P.W.7- Dr. Uttam Appa Phule, who had examined injured person, proved Medico Legal Certificate which shows that the victim suffered serious incise wounds on vital part of his body which were life threatening. As already indicated P.W.8 - Thakur. has proved recovery of sword vide Exh.50.

¶24

Learned counsel for the appellant submitted first that P.W.1 - Tejashree could not have at all witnessed the incident since she had to go to school in nearby village and return to her village by bus. She stated that there used to be seven periods of half an hour each and her classes starts at 8.00 a.m. Therefore, ordinarily classes would be over by 11.30 a.m. Learned counsel for the appellant submits that witness had admitted that for walking to bus stop it took 15 minutes

¶25

5 APEAL 51 OF 2010

¶26

and it took half an hour to reach her house from the bus stop. Bus journey itself took 20 minutes. Therefore, according to learned counsel, it was not possible for the witness to see any assault on Nanasaheb Gaikwad at 10.00 a.m. at the spot.

¶27

Learned Additional Public Prosecutor submitted that the learned trial Judge has duly considered this evidence and has observed that it was not necessary that on the incidental day witness had to attend all the 7 periods, as the incidental day appears to be Saturday from the cross examination of witness. Therefore, it would not be permissible to say that it was not possible for the witness to see the incident.

¶28

Learned counsel for the appellant next submitted that eye witness did not know the appellant and she had merely stated that one person assaulted the victim. The learned counsel pointed out that a test identification parade was not held. She also submitted that it would be hazardous to rely on uncorroborated word of the sole eye witness Tejashree to hold the appellant responsible for assault on Nanasaheb. Learned counsel pointed out that Tejashree’s evidence itself shows that the spot was surrounded by the several shops, houses and even Gram Panchayat office. Therefore, it is indeed curious that when the victim Nanasaheb was assaulted, there was none else present at the

APEAL 51 OF 2010

spot.

Learned counsel for the appellant relying on the judgment of Supreme Court in Raju Alias Rajendra -vsState of Maharashtra, reported in (1998) Supreme Court Cases 169, submitted that when witness did not previously know the assailant, the identification of assailant by the witness in the Court without being tested at the test identification parade would be doubtful. Learned APP submitted that the test identification parade was not at all necessary since in a small village everybody normally knows everyone else. If this was so, there should have been no difficulty for the witness to name the assailant rather than saying that one person came behind Nanasaheb. This assumes significance in the context of absence of any other witness to depose about the incident when the incident took place at a spot where several persons should ordinarily have been present. It is also significant that the F.I.R. itself has not been proved and therefore, the question as to how the name of the appellant came to be known to the investigation machinery is not answered.

¶33

This is not all. Apart from the fact that witnesses on the recovery of sword at the instance of appellant have turned hostile, P.W.- 8 Nandkumar Thakur – Superintendent of Police,

¶34

7 APEAL 51 OF 2010

¶35

stated that though the articles seized were sent to the Forensic Science Laboratory, the report from the Laboratory has not been tendered before the trial Court for no reason whatsoever. Ordinarily if the articles are sent to the Forensic Science Laboratory, report ought to have been received and if it might have received, but was not produced, the inference would be that it was not tendered because it was not incriminating. In view of this, it cannot be said that the learned Judge could have inspite of these deficiencies relied on the sole testimony of P.W.-1 Tejashree and held the appellant guilty of offence punishable under Section 307 of the Indian Penal Code. Mere seriousness of the injuries suffered by the victim should not result in acceptance of whatever evidence is tendered by the prosecution in the Court.

¶36

To sum up, first, P.W. -1 Tejashree does not claim to have known the assailant prior to the incident. Secondly, she was not made to identify the assailant at any test identification parade before she identified the appellant in the witness box. Thirdly the spot of the incident is a busy place in the village and the time was 10.00 a.m. There ought to have been more eye witnesses than P.W.1 Tejashree alone. Fourthly, first informant’s report which could have shown that the appellant was named as his assailant, has not been

¶37

8 APEAL 51 OF 2010

¶38

proved, and lastly, the report from Forensic Science Laboratory which could have shown that the sword allegedly recovered at the instance of appellant had stains of blood matching with those of victim, has not been produced.

¶39

In these circumstances the learned Judge ought to have extended the benefit of doubt to the appellant. In view of this appeal is allowed. The conviction of the appellant for the offence punishable under Section 307 of the Indian Penal Code and sentence of R.I. for 7 years with fine of Rs.500/- or in default R.I. for one month is set aside and the appellant is acquitted. He shall be set at liberty if not wanted in any other case.

¶40

Criminal Application No.1152 of 2010 for bail and suspension of sentence becomes infructuous, stands disposed of accordingly.

¶41

(R. C. CHAVAN, J.)

Bapurao Dada Borate v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Bapurao Dada Borate v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sambhaji Dashrath Pardeshi Vs the State of Maharashtra

Sachin Lawqrance Elenjikal Vs the State of Maharashtra

Jennifer Oliver Erasmus Vs the State of Mahashtra

Bapurao Dada Borate Vs the State of Maharashtra

Sushma Audhendra Tripathi Vs Suman Deep Narayan Pandey and Anr.

Sayyad Musadik Wahiuddin Kadri @ Musadik Moiddik Kadri Vs the State of Maharashtra