Bombay High Court
State Of Mah. Thr. Pso Akola Old City Ps ... vs Vivek Prakash Ingle And 7 Others on 16 February, 2021
Author: Amit B. Borkar
Bench: Z. A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 470 OF 2020
State of Maharashtra through
Police Station Officer,
Akola Old City Police Station,
District Akola . . . APPELLANT
...V E R S U S..
1. Vivek Prakash Ingle
Aged about 25 years,
2. Satish Gulabrao Khandare,
Aged about 26 years,
3. Sagar Ramrao Uparwat,
Aged about 21 years,
4. Nitesh Gulabrao Khandare,
Aged about 22 years,
5. Kunal Shivcharan Tayade,
Aged about 24 years,
6. Akshay Mohan Ghuge,
Aged about 29 years,
7. Shubham Sheshrao Khandare,
Aged about 24 years,
8. Gajanan Kashinath Kamble,
Aged about 38 years,
Respondent Nos. 1 to 5 and 7 to 8 are
R/o. Panchsheel Nagar, Washim Bypass,
Old City, Akola and Respondent No. 6
R/o. Kamla Nagar, Washim Bypass,
Old City, Akola. . . . RESPONDENTS
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Shri T. A. Mirza, A.P.P. for appellant/State.
Shri K. H. Anandani, Advocate for respondent no. 1.
Shri Ayush Sharma, Advocate for respondent nos. 2 to 5 and 7.
Shri Amol Jaltare, Advocate for respondent no. 6.
Ms. Falgoni Badami, Advocate h/f. Shri S. V. Sirpurkar, Advocate for
respondent no. 8.
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CORAM :- Z. A. HAQ AND
AMIT B. BORKAR, JJ.
DATED :- 16.02.2021
JUDGMENT (PER : AMIT B. BORKAR, J.) :-
1. Through this appeal the appellant-State of Maharashtra challenges the judgment and order passed by the Additional Sessions Judge-IV, Akola in Sessions Trial No. 35/2015 dated 05.03.2018 thereby acquitting all respondents of the charge of commission of offences punishable under Sections 143, 147, 148 and 307 read with Section 149 and 302 of the Indian Penal Code.
2. In short, the prosecution case runs as under :-
Bhushan Mahadeorao Ingle (PW14) was the owner of Jairaj Wine Bar situated at Akola. The informant-Sachin Ashok Nandane (PW4) and Sunil @ Chotu Narayan Dhopekar (deceased) were working as Manager in the said bar. On 12.08.2014, accused Satish Khandare, Sagar Uparwat and four others came in the bar when the Informant was present. They had food, liquor and their bill was ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 :::
3 cr-apeal-470-20j (1).odt Rs. 3870/-. When the Informant demanded the amount of the bill from Satish Khandare, he told informant to keep the said amount as credit in his account. There was argument between the Informant and the accused Satish Khandare and Sagar Uparwat over the payment of the bill. At that time, Sunil (deceased) came there and Satish Khandare and Sagar Uparwat abused Sunil (deceased). They left the bar without making the payment of the bill. While leaving the bar they threatened Sachin and Sunil they will see what happens in the night.
3. At around 9.00 p.m. on 12.08.2014, when the Informant and Sunil(deceased) were present at the counter of the bar and Vinod Sawadkar, Pradip Arakhrao (PW13), Bhaskar Shende, Ramdas Lod, Raju Damodar (PW5) and Tushar Sange (PW1) were present in the bar. Accused-Satish Khandare, Sagar Uparwat and four others came in the bar, accused Satish Khandare and Sagar Uparwat were holding pipes and other four were holding Bamboo sticks. Accused suddenly started assaulting Sunil (deceased) with the said weapons. Accused Satish Khandare and Sagar Uparwat gave blow of pipes on head of Sunil (deceased). The Informant and others tried to intervene but, other four assailants assaulted them. Due to assault by the accused, Sunil(deceased) sustained bleeding injury on his head and he fell down near the counter. Even thereafter all the assailants assaulted Sunil(deceased) and ran away from the spot. Out of four unknown ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 4 cr-apeal-470-20j (1).odt assailants, one of the assailant assaulted Pradip Arakhrao (PW13) with stick. It is alleged that since Sunil (deceased) lodged report of the incident which had occurred in the afternoon, the accused assaulted Sunil(deceased). Sunil (deceased) was admitted to Sahara Hospital at Akola by the Informant and thereafter the Informant went to the Police Station, Old City, Akola and lodged report. On the basis of the report of the Informant, the Police Station Officer registered the offence vide Crime No. 188/2014 for the offence punishable under Sections 143, 147, 148, 149, 326 and 324 of the Indian Penal Code against Satish Khandare, Sagar Uparwat and four other unknown persons. The Police Officer started the investigation. The Investigating Officer carried out spot panchnama, inquest panchnama and test identification parade through Executive Magistrate. The Investigating Officer seized incriminating weapons, clothes, blood samples under the seizure panchnama. The Investigating Officer referred incriminating articles to Regional Forensic Science Laboratory.
4. The Investigating Officer initially registered offence punishable under Section 307 of the Indian Penal Code but, thereafter since Sunil died, the Investigating Officer added Section 302 of the Indian Penal Code. After completion of the investigation, charge-sheet came to be filed against the accused for the offence punishable under ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 5 cr-apeal-470-20j (1).odt Sections 147, 148, 149, 323, 326, 307, 302 and 109 of the Indian Penal Code.
5. Charges were framed against the accused, for which they pleaded not guilty and claimed to be tried. During the trial, the prosecution examined 19 witnesses, 4 of them namely Tushar Sange (PW1), Raju Ingle (PW3), Raju Damodar (PW5) and Pradip Arakhrao (PW13) being the eye-witnesses. Raju Damodar (PW5) and Pradip Arakhrao (PW13) turned hostile. In defence, no witness was examined.
6. After recording the evidence adduced by the prosecution, perusing exhibits proved by the prosecution and defence and hearing learned Advocate for the accused and learned A.P.P. for the State, the Trial Judge acquitted all the accused. Hence, the State has filed the present appeal.
7. We have heard Shri T. A. Mirza, learned A.P.P. for the appellant/State, Shri K. H. Anandani, learned Advocate for respondent no. 1, Shri Ayush Sharma, learned Advocate for respondent nos. 2 to 5 and 7, Shri Amol Jaltare, learned Advocate for respondent no. 6 and Ms. Falgoni Badami, learned Advocate h/f. Shri S. V. Sirpurkar, Advocate for respondent no. 8.
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8. We have also perused the depositions of the prosecution witnesses; material exhibits tendered and proved by the prosecution; the statements of respondents/accused recorded under Section 313 of the Code of Criminal Procedure; and the impugned judgment.
9. Before analyzing the evidence available on record and going into legal aspect of the same, we feel it appropriate first to deal with contention advanced by the learned Advocates of either side.
10. Shri T. A. Mirza, learned A.P.P. for the appellant/State strenuously urged that flimsy reasons for acquittal have been assigned by the learned Trial Judge in the impugned judgment. He urged that the said judgment is grossly unreasonable. He submitted that disbelieving of evidence of two eye-witnesses by the Trial Court is manifestly unreasonable. He urged that the view of the learned Trial Judge in rejecting their testimonies could not be defended as even possible view. He urged that the prosecution had succeeded in bringing home the guilt of the respondents in respect of all the charges and we should reverse the impugned judgment of acquittal. Shri T. A. Mirza, learned A.P.P. on behalf of the appellant/State strenuously urged that the view of acquittal taken by the Trial Court is not a possible view and as per his contention, it is wholly erroneous view, in fact a perverse view. He contended that this being so, the impugned order of ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 7 cr-apeal-470-20j (1).odt acquittal cannot stand. He strenuously urged that there are clinching circumstances, which are guarantee of truthfulness of the prosecution case and weightage is not given to them by the learned Trial Judge.
11. He firstly contended that the prosecution case is backed up by evidence of two eye-witnesses namely Tushar Sange (PW1) and Raju Ingle (PW3). He strenuously urged that account given by Tushar Sange (PW1) and Raju Ingle (PW3) is corroborated by nature of injuries found on the body of Sunil(deceased) by Dr. Hussaini (PW15). He further urged that the manner and place of assault on the deceased is also probablised by their evidence. He submitted that omissions, contradictions and inconsistency referred by the learned Trial Judge are of minor nature and insignificant. He submitted that there is direct evidence against the respondents in the form of reliable testimonies of Tushar Sange (PW1) and Raju Ingle (PW3), which are sufficient to bring home the guilt of the accused-respondents. He submitted that though Sunil (deceased) died after few days of assault, the respondents had requisite intention to commit murder of Sunil (deceased). He relied upon the judgment of Apex Court in the case of Antram Vs. State of Maharashtra, reported in (2008) AIR(SC) 409. He further submitted that infact there is no delay in lodging of the First Information Report and recording statements of the witnesses under Section 161 of Code of Criminal Procedure. He submitted that the ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 8 cr-apeal-470-20j (1).odt accused have not cross-examined the Investigating Officer on the point of delay as argued on their behalf. He relied upon the judgment of the Apex Court in the case of Vijay Kumar Arora Vs. State Govt. of NCT Delhi, reported in (2010) ALLMR (Cri) 944. He further submitted that the respondents be convicted for the offence punishable under Section 302 of the Indian Penal Code.
12. Shri Amol Jaltare, learned Advocate appearing for the respondent no. 6 submitted that the alleged eye-witnesses i.e. Tushar Sange (PW1) and Raju Ingle (PW3) are not reliable witnesses and their testimonies cannot be read in evidence. He submitted that there was substantial delay in recording of statement of the witnesses. He submitted that in the statement under Section 164 of the Code of Criminal Procedure, the names of accused were not mentioned. He submitted that there are serious omissions and contradictions in the testimonies of the eye-witnesses, which make their testimonies totally unreliable. He submitted that identity of the accused is not proved. He submitted that the names of the accused are common and they were residing in different area than the area stated by the Tushar Sange (PW1). He submitted that there is no evidence produced by the prosecution about the due procedure being followed during test identification parade. He submitted that though Tushar Sange (PW1) was assaulted, he was not sent for medical examination. He submitted ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 9 cr-apeal-470-20j (1).odt that absence of injury to Tushar Sange (PW1) and Raju Ingle (PW3) makes their testimonies unreliable. He submitted that there is delay of 4½ hours in registering the First Information Report, though Police had arrived at the spot of incident immediately. He submitted that the testimonies of Tushar Sange (PW1) and Raju Ingle (PW3) are not corroborated by any other witness. He submitted that recovery and discovery is not proved. There is no evidence about the fact that the incriminating articles were sealed. He submitted that as per C.A. report, there was no blood on the clothes. He further submitted that as per the opinion of Dr. Prashant Wankhede (PW19), death of Sunil (deceased) was not due to the assault. He submitted that there was no fracture on head and therefore, deceased could not have died due to assault but, died due to medical negligence. He alternatively submitted that considering the facts and circumstances, it could not be said that the respondents intended to commit murder of Sunil (deceased), and if at all it is held that the accused are guilty, they can be convicted under Section 323 of the Indian Penal Code. In support of his submissions, Shri Amol Jaltare, learned Advocate for the respondent no. 6 relied upon the following judgments:-
(i) Datta Anganappa Bagadi Vs. The State of Maharashtra [2019 ALL MR (Cri) 3567].::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 :::
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(ii) The State of Maharashtra Vs. Arjun Bharmaji Wagchoure and others [2012 ALL MR (Cri) 2869].
(iii) Karuppanna Gounder Vs. State Rep. By the Inspector of Police [AIR 2019 SC 4425].
(iv) Mukesh Kumar Vs. The State of Chhattisgarh [2019 ALL SCR (Cri) 236]
(v) Natthu S/o. Bakshu Uike Vs. State of Maharashtra [2015 ALL MR (Cri) 124].
13. At the outset, we would like to state that we are seized of the matter in an appeal against acquittal. It is well settled that unless appreciation of evidence is clearly unreasonable or the impugned judgment of acquittal is vitiated by some illegality or perversity and if the view of acquittal is a possible view then this Court will not interfere , merely because different view is possible. We also feel in this situation it would be pertinent to refer to the decision of the Apex Court in the case of State of Panjab Vs. Ajaib Singh, reported in (1995) 2 SCC 486, wherein in paragraph no. 7, the Apex Court has observed thus :-
"7. That the incident was shocking admits of no doubt. May be sitting as the appellate court the task was not easy. But where the High Court has set aside the conviction under Section 302 IPC after delving in depth and discussing evidence in detail, should this Court interfere, merely, because there ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 11 cr-apeal-470-20j (1).odt could have been other view ? We agree that this Court is not precluded or the Court hearing the appeal against acquittal is not prevented from examining and reappreciating the evidence on record. But the duty of a court hearing the appeal against acquittal in the first instance is to satisfy itself if the view taken by acquitting court exercising appellate jurisdiction was possible view or not. And if the court comes to conclusion that it was not, it can on reappreciation of evidence reverse the order. What had persuaded us to rehear the appeal was that the revolver of the deceased was in the holster beneath the overcoat. At the first flush, it appeared to be a clinching circumstance. But even after accepting this and ignoring the opinion of forensic expert, the finding of the High Court is neither rendered perverse nor infirm nor palpably erroneous. It having been found by both the High Court and the Trial Judge that the defence version that the respondent received the information from a truck passing from that direction that some persons in the police uniform were forcibly collecting money from the truck drivers whereupon the respondent reached there, challenged the deceased who did not disclose his identity rather tried to move towards the car giving an impression that he was about to run away whereupon the respondent rushed towards him, grappled with him and was injured with danda blows used by three companions of the ASI, it is very difficult to say, as held by the High Court, that he had not developed a reasonable apprehension that if firearm was not used he was himself likely to be killed. The respondent had nine injuries. They have been found not to be self- inflicted. He was attacked by the deceased and his companions. The Trial Judge found that there was no previous enmity. The submission that the respondent was not entitled to use firearm as he was attacked by dandas only cannot be accepted. That is not what is provided for by clauses I and II of Section 100 of the IPC. It shall depend on facts of each case whether the assault was such as could cause reasonable apprehension that death would otherwise be ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 12 cr-apeal-470-20j (1).odt the consequence of such assault. If the High Court found that the respondent was assaulted by three persons with dandas, and hence the accused developed a reasonable apprehension that if he did not use the fire arm then death would be the consequence, it cannot be said that the High Court was guilty of taking palpably erroneous view. In any case, the prosecution could succeed on the strength of its own case and that, as observed earlier, has not been found to be authentic even by the trial judge. The conviction being solely base on failure to establish that the respondent had not exceeded his right of self- defence, it would not be an exercise of sound discretion to interfere with the order passed by the High Court."
We are of the view that this Court is not precluded or Court hearing the appeal against the acquittal is not prevented from examining or re-appreciating the evidence on record. But the duty of the Court hearing the appeal against acquittal in the first instance is to satisfy itself if the view taken by the acquitting Court while exercising appellate jurisdiction is a possible view or not and if the Court reach to the conclusion that it is not, then it has to appreciation the evidence to ascertain whether the evidence is sufficient to convict the accused. If the Court finds that the evidence is sufficient to accept the case of prosecution, then the appellate Court should reverse the judgment of acquittal.
14. The evidence, on the basis of which the prosecution presses for conviction of the respondents can be classified into two heads ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 13 cr-apeal-470-20j (1).odt (A) Clear evidence in the form of testimony of Tushar Sange (PW1) and Raju Ingle (PW3).
(B) Recovery of incriminating articles from the accused.
15. We now propose to examine the evidence of Tushar Sange (PW1). He stated that on 12.08.2014 in the afternoon there was quarrel between respondent nos. 2, 3, 6 and other four to five persons over their bill. Respondent no. 2 Satish Khandare asked to give credit of amount of bill but, Sunil (deceased) refused to give credit of the said amount and therefore there was altercation. At the time of leaving the bar, respondents threatened them by stating that they will see them in the evening. Around 9.00 p.m on 12.08.2014, the respondents came to the bar where Tushar Sange (PW1) was working as waiter. At that time, respondent nos. 2 and 3 were holding iron pipes and others were holding sticks. Respondent nos. 2 and 3 assaulted Sunil (deceased) by iron pipe. Due to assault, Sunil (deceased) sustained bleeding injury and he fell down. Even after Sunil (deceased) fell down, he was assaulted by sticks. The respondents assaulted waiters also. The accused cross-examined Tushar Sange (PW1) on various points in support of defence but, except minor omissions and inconsistency, nothing much was brought on record to shake testimony of Tushar Sange (PW1). ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 :::
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16. We now propose to examine the evidence of Raju Ingle (PW3). In short, Raju Ingle (PW3) stated that on 12.08.2014 in the afternoon, there was altercation between respondent nos. 2, 3 and 6 and the Manager over payment of bill of liquor and food consumed by the accused. They left the bar by giving threat that Tushar(PW1) and Raju (PW2) will see what would happen in the night. Thereafter, on the same day at about 9.00 to 9.15 p.m. they came to the bar. Respondent nos. 2 and 3 were holding iron pipes and other accused were holding Bamboo sticks. All the accused went near counter and respondent nos. 2 and 3 assaulted Sunil (deceased) by iron pipe. They gave blow of pipe on head of Sunil (deceased) and other accused assaulted by Bamboo sticks and sticks. Due to assault of accused persons, Sunil (deceased) fell down and blood was oozing from his body. It is stated that when staff members went to rescue Sunil (deceased), accused assaulted them by sticks and stated not to interfere. He stated that thereafter they closed the bar and left to their houses. As he was frightened, he went to his village and came back after 8/10 days at the bar for work. The Police thereafter recorded his statement as per his say.
17. We have no reservation in observing that on very flimsy grounds, the learned Trial Judge has rejected the evidence of Tushar Sange (PW1), which in our view is corroborated by medical evidence ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 15 cr-apeal-470-20j (1).odt of Dr. Hussaini (PW15) to which assurance is lent by evidence of Raju Ingale (PW3), who was also working as waiter with Tushar Sange (PW1).
18. It is also pertinent to mention that both the eye-witnesses are natural witness of the incident inasmuch as Tushar Sange(PW1) and Raju Ingle (PW3), were working as Waiters in the said bar. In our view, both the eye-witnesses had no difficulty in recognizing the respondent nos. 2, 3 and 6 as the respondent nos. 2, 3 and 6 were regularly visiting their bar.
19. The autopsy on the corpus of Sunil(deceased) was conducted by Dr. Hussaini (PW15). Dr. Hussani (PW15) found following injuries on the person of Sunil (deceased) :-
"On external examination, I found following injuries.
a) Evidence of surgically stitched would of scalp 33 cms. In length with 30 stiches with metal clips in situ extending from right fronto parieto to occipital region in shape on opening underlined edges clean cut.
b) Surgically stitched would over left parietal region over scalp of 6 cms. in length and 7 metal clips stiches in situ.
c) Contusion of dark colour over left side of neck 10 cms. X 8 cms. in size.
d) Evidence of circular tracheostomy wound over anterior aspect of lower part of neck of size 1 cm x 1 cm x cavity deep evidence of redish froth oozing out.
e) Contusion over superior aspect of left shoulder size 8 cms x 6 cms dark in colour.
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f) Abrasion with brownish dark scab over forehead on left side, size 1 cm x 1 cm.
g) Contused abbrasion with scab of brownish black colour over scalp on left occipital region of size 10 cms x 2 cms.
h) Evidence of surgically stitched wound over right lumber region with 12 metal stitches and 12 cms in length.
i) Abbrassion with brownish black scab over dorsal of right hand of size 7 cms x 5 cms.
j) Multiple healed with black brownish scab abrasion over lateral aspect of left arm and forearm extensor aspect of size varying from 5 cms x 4 cms to 2 cms x 1 cm.
k) Two linear abrasion with scab over lateral aspect of left forearm of size 3 cms x 0.3 cms and 2 cms x 0.2 cms respectively 1 cm apart.
l) Abrasion with scab over back on right side lower 3 rd aspect of size 5 cms x 3 cms.
m) Contusion of dark colour over left thigh posteriorly of size 7 cms x 1 cms and
n) Contusion of dark colour over left calf of size 5 cms x 3 cms.
2. On internal examination, I found following injuries.
Under scalp contusion in the haematoma over left parieto temporo, occipital region diffusely also heamatoma seen on right side diffusely. Evidence of cranitomy over right fronto parieto tempro occipital region creating a gap of size 16 cms x 13 cms with haematoma in gap and edges are margins of cranitomy wound regularly. Base shows cracked undisplaced fracture live extending from middly cranial fossa to occipital bone on left side, length 7.5 cms with infiltration of blood at fracture side. Meninges on right side stitched with haematoma over on left side meninges intact. Brain matter shows evidence of cerebral contusion in the form of diffuse subarachnoid hemmorrage over both cerebral hemispheres and evidence of ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 17 cr-apeal-470-20j (1).odt laceration with pulpiness and softening over occipital pole on right side with haematoma around of size 2 cms x 1 cms."
20. In the opinion of Dr. Hussaini (PW15), Sunil (deceased) died due to "Cranio Cerebral injury and its complication alongwith multiple contusion and abrasions". The injury suffered by Sunil (deceased) was on vital organ- head. Dr. Hussaini (PW15) stated that all the internal injuries were corresponding to the external injuries. He further stated that the injury found over brain alongwith fracture of bones of scalp is sufficient to cause death in ordinary course of nature if timely medical or surgical aid is not provided. He further stated that injuries in post-mortem report can be caused by hard and blunt object like iron pipe and sticks. We see no reason to reject the evidence of Dr. Hussaini (PW15).
21. The manner of assault, which is contended in the First Information Report lodged by Sachin Nandane (PW4), and the evidence of Tushar Sange (PW1) and Raju Ingle (PW3) is corroborated by medical evidence.
22. The manner of the assault, which is contained in the F.I.R. and the evidence of Tushar Sange(PW1), Raju Ingle (PW3), before the Trial Court is corroborated by the medical evidence. In this connection, it would be pertinent to refer to the First Information ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 18 cr-apeal-470-20j (1).odt Report, which was lodged within four and half hour of the incident, and wherein there is a categorical averment that the respondent no.2
- Satish Khandare and respondent no.3- Sagar Uparwat assaulted Sunil (deceased) with iron pipe on his head. As mentioned above, manner of the assault contained in the First Information Report, has also been deposed to by these two eye-witnesses in their evidence before the Trial Court.
23. For the said reasons, in our view, the learned Trial Judge acted in manifestly unreasonable manner in disbelieving the involvement of the respondent nos. 1 to 7, in the crime. We are of the view that the learned Trial Judge is not justified in acquitting the respondent nos. 1 to 7 for the offences punishable under Section 302 of the Indian Penal Code. The evidence on record shows that the respondent nos. 1 to 7 in the afternoon had threatened Tushar (PW1) and Sunil (deceased) that they will see what happens in evening. After threatening, the respondent nos. 1 to 7 came in the evening with weapons and directly assaulted Sunil (deceased). This shows that the assualt on Sunil was premeditated act. In our view, the act of the said respondent nos. 1 to 7, falls squarely within the ambit of Third Clause of Section 300 of the Indian Penal Code. Third Clause of Section 300 of the Indian Penal Code, provides that culpable homicide is murder, "if the act is done, with intention of causing bodily injury to any person ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 19 cr-apeal-470-20j (1).odt and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." The Supreme Court in the time-honoured decision in the case of Virsa Singh Vs. State of Punjab, reported in AIR 1958 SC 465, in para 12, has held that if the injury caused is the intended injury i.e. not accidentally caused and is sufficient to cause death in the ordinary course, the case would fall under Third Clause of Section 300 of the Indian Penal Code. The said decision of the Hon'ble Supreme Court is considered and followed by the Supreme Court in the case of State of Karnataka Vs. Vedanayagam reported in (1995) 1 SCC 326. This is apparent from the observations contained in para no. 4 of the said judgment. In the instant case, the evidence of all the eyewitnesses is that respondent nos. 2 and 3 intentionally inflicted blows on the head of Sunil (deceased) with iron pipes and other respondent nos. 1 and 4 to 7 with sticks. The medical evidence in the form of the deposition of Dr. Hussaini (PW15) is that the injuries suffered by Sunil (deceased) on his head were possible by the recovered iron pipe. We find opinion of Dr. Hussaini (PW15) to be plausible because vital organ like head, is damaged.
24. We may straight away mention that we are not inclined to accept the evidence of recovery of weapon on the pointing out of respondent nos. 2 and 3 as recovery of weapon (iron pipe) is not proved.
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25. The Trial Court acquitted all the accused firstly, on the ground that there are omissions, contradictions and inconsistencies in the evidence of eye-witnesses. It is well settled that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradictions of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, cannot be the foundation for doubting the case of the prosecution. Minor contradictions or inconsistencies of insignificant nature, which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to contradictions creating serious doubt about the truthfulness of the witness and other witnesses also make material improvements or contradictions before the Court in order to render the evidence unacceptable, that the Courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions, which materially affect the case of the prosecution have to be understood as opposed to mere marginal variations in the statement of the witnesses. Another settled rule of appreciation of evidence is that the Court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole and the context in which the statement is made.
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26. In terms of the Explanation to Section 162 of the Code Criminal Procedure, which deals with an omission to state a fact or circumstance in the statement referred to in sub-section (1), such omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether there is any omission, which amounts to contradiction in particular context shall be a question of fact. A bare reading of this Explanation reveals that if a significant omission is made in a statement of a witness under Section 161 of the Code of Criminal Procedure, the same may amount to contradiction and the question whether it so amounts is a question of fact in each case. (See: Dr. Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra [(2010) 13 SCC 657] and Subhash Vs. State of Haryana [(2011) 2 SCC 715] ).
27. The basic element, which is unambiguously clear from the Explanation to Section 162 of Code of Criminal Procedure is use of the expression "may". To put it aptly, it is not every omission or discrepancy that may amount to material contradiction so as to give the accused any advantage. If the legislative intent was to the contrary, then the legislature would have used the expression "shall" in place of the word "may". The word "may" introduces an element of discretion, which has to be exercised by the Court of competent jurisdiction in ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 22 cr-apeal-470-20j (1).odt accordance with law. Furthermore, whether such omission, variation or discrepancy is a material contradiction or not is again a question of fact, which is to be determined with reference to the facts of a given case. The concept of contradiction in evidence under criminal jurisprudence, thus cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable discretion with the Court to determine whether it is a contradiction or material contradiction, which renders the entire evidence of the witness untrustworthy and affects the case of the prosecution materially. (See: Shyamal Ghosh Vs. State of West Bangal [(2012) 7 SCC 646] )
28. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Judge. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 23 cr-apeal-470-20j (1).odt evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions, which materially affect the case of the prosecution but, not every contradiction or omission. (See: Rammi @ Rameshwar Vs. State of M.P. [(1999) 8 SCC 649] and Leela Ram (Dead) through Duli Chand Vs. State of Haryana [(1999) 9 SCC 525])
29. We may straight away mention that we cannot concur with the learned Trial Judge in his view that since there were some contradictions and omissions in the testimonies of all the eyewitnesses, their credibility is eroded. In this connection, we are inclined to accept the submission of Shri T. A. Mirza, learned A.P.P., to the effect that some omissions in the statements recorded under Section 161 of the Code of Criminal Procedure, are bound to be there for they contain a brief account of the incident and the evidence in the Trial Court, on the other hand, contains an elaborate account of the incident. In this connection, we may refer to the decision of the Apex Court in the case of Matadin and others Vs. State of U.P., reported in 1980 Supp SCC 157, wherein in para no. 3, Their Lordships observed thus:-
"The learned Sessions Judge, had rejected the evidence of the eye-witnesses on wrong, unconvincing and unsound reasons. The Sessions Judge appears to have been swayed by some insignificant omissions made by some of the witnesses in their statement before the police and on the ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 24 cr-apeal-470-20j (1).odt basis of these omissions dubbed the witnesses as liars. The Sessions Judge did not realize that the statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration but, mere small omissions will not justify a finding by a court that the witnesses concerned are self- contained liars."
30. In this context, it is laid down in a recent judgment in the case of Khurshid Ahmed Vs. State of J & K , reported in (2018) 7 SCC 429 at page no. 441 as under :
"35. When analysing the evidence available on record, the court should not adopt hyper technical approach but should look at the broader probabilities of the case. Basing on the minor contradictions, the court should not reject the evidence in its entirety. Sometimes, even in the evidence of truthful witness, there may appear certain contradictions basing on their capacity to remember and reproduce the minute details. Particularly in the criminal cases, from the date of incident till the day they give evidence in the court, there may be gap of years. Hence, the courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the court must be to do substantial justice. We feel that the trial court has adopted a hyper technical approach which resulted in the acquittal of the accused."
31. In the present case, we do not find any major contradictions either in the evidence of the witnesses, or any conflict in ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 25 cr-apeal-470-20j (1).odt medical and ocular evidence, which would tilt the balance in favour of the respondents. The minor improvements, embellishments etc., ought to be ignored since the evidence of the witnesses otherwise overwhelmingly corroborate each other in material particulars. The learned Sessions Judge, has rejected the evidence of the eyewitnesses on wrong, unconvincing and unsound reasons. The Sessions Judge appears to have been swayed by some insignificant omissions made by some of the witnesses in their statements before the police and on the basis of these omissions has dubbed the witnesses as liars. The Sessions Judge did not realize that the statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but insignificant omissions will not justify a finding by a Court that the witnesses concerned are unreliable. We have carefully perused the judgment of the Sessions Judge and we are unable to agree that the reasons that he has given for disbelieving the witnesses, are good or sound reasons.
32. The second reason for acquittal recorded by the Trial Court is delay in recording statements of eye-witnesses under Section 161 of the Code of Criminal Procedure. The Trial Court has observed that the statements of none of the witnesses were recorded on the date of the incident but, there was substantial delay in recording statements ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 26 cr-apeal-470-20j (1).odt of witnesses. It is held that non-recording of the statements of witnesses by the Investigating Officer on the same day is held to be fatal to the prosecution. In the context of delay in recording statements of eye-witnesses, it would be appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of Dr. Krishna Pal Vs. State of U.P., reported in (1996) 7 SCC 194, wherein it is laid down as under:
" 9. ........................ In the instant case, no explanation has been given by the prosecution as to why eyewitnesses had not been examined shortly after the incident and from the materials on record it appears that there had been inordinate delay in examining the eye-witnesses. But simply on that account, the convincing and reliable evidences adduced in this case should not be discarded. The Investigating Officer in his deposition has also admitted that through mistake he omitted to mention the crime number in the inquest report. It appears to us that the Investigating Officer had not been diligent enough but for that reason we do not feel that reliable and clinching evidences adduced in this case by the eye-witnesses particularly by Dr Rajveer Singh should be discarded".
33. In this connection, we may refer to a decision of Apex Court in the case of Karnel Singh Vs. State of M.P., reported in (1995) 5 SCC 518. In the said decision, it has been indicated by Apex Court that in a case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer. In view of the authoritative ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 27 cr-apeal-470-20j (1).odt pronouncement of the Hon'ble Supreme Court, we feel that the testimonies of both the eye-witnesses in the present case inspire confidence and we find eye-witnesses to be reliable and convincing, and therefore, we are satisfied that the Trial Court is not justified in holding that non-recording of statements of witnesses by the Investigating Officer on the same day is fatal.
34. The next line of contention taken by the learned Advocate for the respondents is that the prosecution has failed to prove recovery. It is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case, where there is ample unimpeachable ocular evidence. [See: Lakhan Sao Vs. State of Bihar (2000) 9 SCC 82 and State of Rajasthan Vs. Arjun Singh (2011) 9 SCC 115 ]
35. The next reason for acquittal of respondent nos.1 to 7 is failure of prosecution to prove identity of the accused. Tushar Sange (PW1) and Raju Ingle (PW3) were working as Waiters in the said bar. Tushar Sange (PW1) and Raju Ingle (PW3) stated in their testimonies that they knew Satish Khandare and Sagar Uparwat and Akshay Ghuge, as they frequently used to come to the bar for drinks and meal. Merely because, there is inconsistency in the statements regarding the place of residence of the accused, this fact by itself, does ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 28 cr-apeal-470-20j (1).odt not make the testimonies of Tushar Sange (PW1) and Raju Ingle (PW3) unreliable. When Tushar Sange (PW1) and Raju Ingle (PW3) were working in the bar and the accused used to visit the bar regularly, it is quite natural that the Waiters at the bar could have identified accused by their names. It is not necessary that the Waiters working in the bar must have detailed knowledge about place of residence of their patrons. In the facts of the case, merely because Test Identification Parade was delayed by two months, same by itself, does not make identity of the accused unreliable.
36. The next submission on behalf of the respondent no.6 is that though Tushar Sange (PW1) was assaulted, he was not sent for medical examination and this factor by itself makes his testimony unreliable. The evidence on record shows that the injury suffered by Tushar Sange (PW1) was not serious injury. Therefore, non- examination of injury of Tushar Sange (PW1) and Raju Ingle (PW3) would not make their testimonies unreliable, as we have already held that their testimonies are convincing.
37. The learned Advocate for the respondents, in the alternative, submitted that the respondent nos.1 to 7 never intended to commit murder of Sunil (deceased) and, therefore, at the most, the respondent nos.1 to 7 can be convicted under Section 323 of the ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 29 cr-apeal-470-20j (1).odt Indian Penal Code. Analysis of Third Clause of Section 300 of the Indian Penal Code would show that for its application, two requirements have to be satisfied:
(a) There should be an intention to inflict bodily injury (it should not be accidental), and
(b) The injury inflicted should be sufficient in the ordinary course of nature to cause death.
38. Since the evidence of two eye-witnesses Tushar Sange (PW1) and Raju Ingle (PW3) shows that the respondent nos.1 to 7 intentionally inflicted blows of iron pipes and sticks on the head of Sunil (deceased) and testimony of autopsy Surgeon makes it clear that head injury sustained by the deceased was the cause of death, both requisites are satisfied. In addition to the testimonies of Tushar Sange (PW1) and Raju Ingle (PW3), the prosecution has proved that the respondent nos.1 to 7 had altercation in the afternoon and had threatened Sunil (deceased) in the afternoon that he will see what happens in the evening. In the evening, the respondent nos.1 to 7 came to the bar with weapons like iron bar and sticks and assaulted Sunil (deceased). It has come in their evidence that the respondent nos.1 to 7 continued their assault even after Sunil (deceased) had fallen down. This shows that the respondent nos.1 to 7 came at the spot of incident with premeditated intention to commit murder of ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 30 cr-apeal-470-20j (1).odt Sunil (deceased). Therefore, we are satisfied that the respondent nos. 1 to 7 need to be convicted under Section 302 of the Indian Penal Code.
39. The learned Advocate for the respondents relied upon the judgments of this Court in the case of Datta Anganappa Bagadi (supra), Arjun Bharmaji Wagchoure (supra), Karuppanna Gounder (supra), Natthu Bakshu Uike (supra), in support of his submissions that the respondent nos.1 to 7, in the alternative, can be convicted only under Section 323 of the Indian Penal Code. We have perused all the decisions that have been cited by the learned Advocate for the respondents. Though, there cannot be dispute with the ratio laid down in the said judgments, the Apex Court and this Court in the facts of the said cases have convicted the accused therein by taking into consideration peculiar facts of the case. In our opinion, in the facts of the present case, since the prosecution has proved, ingredients of Third Clause of Section 300 of the Indian Penal Code, the judgments cited on behalf of the respondents would be of no help to the respondents. In addition to the above, we cannot convict the respondents nos.1 to 7 under Section 304 of the Indian Penal Code, as the prosecution has proved the ingredients of Third Clause of Section 300 of the Indian Penal Code.
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40. We have no doubt in observing that respondents nos.1 to 7 are guilty of committing the offence punishable under Section 302 of Indian Penal Code. In reaching the said conclusion, we have borne in mind the time-honoured principles, which this Court keeps in mind while interfering in an appeal against acquittal, namely that the interference should only be made, if either the assessment of the evidence by the acquitting Court is grossly unreasonable or the impugned order of acquittal suffers from any manifest illegality which has occasioned in the failure of justice. We have kept in mind the golden rule that if two views are equally reasonable; one of acquittal and one of conviction then, the mere circumstance that this Court is inclined to take the latter view would be no ground to reverse judgment of acquittal.
41. This leaves us with only one question namely, the sentence to be awarded to the respondent nos. 1 to 7. We have heard learned Advocates for respondent nos. 1 to 7 on the point of the sentence. They submitted that considering the young age, lenient view may be taken.
42. We have reflected over the said question of sentence. Considering the manner of assault committed on Sunil (deceased), we are of the view that this is not the rarest of the rare case to impose ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 32 cr-apeal-470-20j (1).odt death sentence. Bearing this in mind, as also the fact that nearly 6 years have elapsed since the incident took place and there is nothing to indicate that the respondent nos.1 to 7 have any adverse antecedents, in our view, the ends of justice would be satisfied, if they are sentenced to undergo sentence of rigorous imprisonment for life and pay fines, for the offence punishable under Section 302 of the Indian Penal Code.
43. In the result, we pass the following order:-
(i) The Criminal Appeal is partly allowed. (ii) The acquittal of the respondent no. 1- Vivek Prakash Ingle,
respondent no.2- Satish Gulabrao Khandare, respondent no. 3- Sagar Ramrao Uparwat, respondent no.4- Nitesh Gulabrao Khandare, respondent no. 5- Kunal Shivcharan Tayade, respondent no.6- Akshay Mohan Ghuge and respondent no. 7-Shubham Sheshrao Khandare recorded vide impugned judgment for the offence punishable under Section 302 of the Indian Penal Code is set aside.
(iii) The respondent no. 1- Vivek Prakash Ingle, respondent no.2- Satish Gulabrao Khandare, respondent no. 3- Sagar Ramrao Uparwat, respondent no.4- Nitesh Gulabrao Khandare, respondent no. 5- Kunal Shivcharan Tayade, respondent no.6- Akshay Mohan Ghuge and respondent no. 7-Shubham Sheshrao Khandare are found guilty of having committed the offence punishable under Section 302 of the ::: Uploaded on - 11/03/2021 ::: Downloaded on - 28/08/2021 10:12:17 ::: 33 cr-apeal-470-20j (1).odt Indian Penal Code and are directed to suffer sentence of rigorous imprisonment for life and fine of Rs. 80,000/- (Rs. Eighty Thousand) each to be deposited till 15.05.2021.
(iv) On deposit of the amount, Rs. 5,00,000/- (Rs. Five Lakhs) be paid to the dependents of the victim and remaining amount of 60,000/- (Rs. Sixty Thousand) shall be paid to State of Maharashtra.
(v) If the amount is not deposited till 15.05.2021, it be recovered as arrears of land revenue from the said defaulting respondents-convicts.
(vi) The compliance report regarding recovery of the amount and disbursement to the dependent/dependents of victim- Sunil shall be filed on record of this appeal till 15.06.2021.
(vii) The respondent nos.1 to 7 are granted time till 15.03.2021 to surrender.
(viii) If any convict fails to surrender till 15.03.2021, the appellant shall take appropriate steps to secure custody of the said respondents-convict and file compliance report till 26.03.2021.
(ix) Appeal filed against the acquittal of respondent no. 8 is dismissed.
(x) Acquittal of respondent no.8- Gajanan Kashinath Kamble for offence punishable under Sections 302 of the Indian Penal Code is confirmed.
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(xi) Muddemal Property be dealt with according to law after the appeal period is over.
(xii) Bail bonds of the respondent nos.1 to 7 shall stand cancelled on their surrender and if any of them fails to surrender till 15.03.2021, his bail bond shall stand forfeited.
JUDGE JUDGE
RR Jaiswal
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