KAMLAKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Challenge is to the judgment and order dated 24-1-2017 rendered by the learned Additional Sessions Judge-4, Nagpur in Sessions Trial 242/2012, by and under which the appellant-accused is convicted for offence punishable under Section 307 of the Indian Penal Code (" IPC " for short) and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.1,000/-.

(2.) The prosecution case as is unfolded during the trial is thus :

(3.) The incident occurred on 12-11-2011 at 9-00 p.m. The accused came to the complainant and asked that his documents be returned. While the complainant was trying to locate the documents, the accused took out a hammer from his bag and uttering started assaulting the complainant on the head with the hammer. The complainant cried for help, his wife Smt. Shwetal arrived at the scene and tried to rescue the complainant, however, Smt. Shwetal was also assaulted on the head and hand. Alerted by the cries for help, the neighbours of the complainant rushed to the scene of occurrence and the accused fled. The complainant and Smt. Shwetal were admitted to the hospital of Dr. Sengupta. Acting on the intimation received from Dr. Sengupta and the M.L.C. the Police Station Officer, Ambazari registered offence punishable under Section 307 of the IPC. Investigation ensued, the accused was arrested and while in police custody gave memorandum statement before the panchas pursuant to which the hammer used in the attack was discovered and seized from the bushes below the bridge over a nullah in the area. Upon completion of investigation charge-sheet was submitted in the Court of Chief Judicial Magistrate, Nagpur, who committed the proceedings to the Sessions Court. The learned Sessions Judge, Nagpur framed charge (Exhibit 2) under Section 307 of the IPC, the accused abjured guilt and claimed to be tried. The trend and tenor of the cross-examination and the statement recorded under Section 313 of the Criminal Procedure Code would reveal that the defence is that the complainant was paid Rs.12,000/- as fees to represent the accused in the arbitration proceedings. The complainant did not attend the arbitration with the result an ex parte award was made against the accused. A verbal altercation took place between the complainant and the accused on 11-10-2011, the accused approached the complainant to take back the case papers and was asked to come to the office. On 12-10-2011 the accused had gone to the office of the complainant to collect the papers and was falsely implicated. 3. P.W.1 Narendra, the complainant and P.W.4 Shwetal are the injured witnesses. Ordinarily, the evidence of the injured witnesses is placed on a higher pedestal than that of other witnesses. The jurisprudential logic is that an injured witness is less likely to exculpate the guilt and inculpate the innocent. P.W.1 has deposed that eight months prior to the incident the accused met him with some documents and conveyed that he was not in a position to repay the loan of Rs.1,80,000/- obtained from Shriram Chit Finance and the said company initiated arbitration proceedings and Mr. Mohan Sudame, a Practicing Advocate, was the Arbitrator. The complainant advised the accused that ultimately the borrowed amount would have to be paid and at the most some time to repay the amount can be sought. The complainant asked the accused to bring relevant documents. P.W.1 states that one and half months prior to the incident the accused came to his house and told that the arbitration award was adverse and left the office. P.W.1 has deposed that at 9-00 p.m. on 12-11-2011 the accused came to his office which is a part of his residential apartment and asked for return of the documents. When P.W.1 was locating the documents, the accused took out a hammer from a nylon bag and started assaulting P.W.1 on the head with the hammer. The accused inflicted five to six blows. The accused was abusing P.W.1 loudly and was uttering " eh vkt rqyk [kre d#u tkrks". The wife of the complainant P.W.4 Shwetal came to the house hearing the abuses and the commotion and attempted to rescue P.W.1. The accused assaulted P.W.4 Shwetal on her head and hand with the hammer. P.W.1 and P.W.4 suffered serious injuries. Since the neighbours started gathering at the scene, the accused started fleeing. The neighbours gave chase, apprehended the accused and brought him to the police station. In the meanwhile, P.W.1 and P.W.4 were admitted to Dr. Sengupta Hospital. The oral report (Exhibit 28) was recorded by the police who arrived at the hospital. P.W.1 and P.W.4 were admitted in the hospital for three days, and were in I.C.U. for a day. The extensive cross-examination has not taken the case of the accused any further. The credibility of the testimony is not shaken. It is suggested to the complainant that since the accused threatened to lodge complaint with the Bar Council, he is falsely implicated, which suggestion is denied.