Bombay High Court
Anand Roopchand Gajbhiye & Anr vs The State Of Maharashtra on 16 October, 2020
Author: N.J. Jamadar
Bench: S.S. Jadhav, N. J. Jamadar
CRI.APPEAL-736-2003+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 736 OF 2003
1. Anand Roopchand Gajbhiye
Aged - Adult, Occu. Service
2. Sandeep Namdeo Nimhan
Aged - 20 years. Occu. Business
Both residents of,
Pashan Village, Pune. (At present lodged
in Yerwada Central Prison, Pune.
...Appellants
Versus
The State of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO. 1381 OF 2003
The State of Maharashtra
(Through Chatushrungi Police Station,
Pune) ...Appellants
Versus
1. Gabbar Mohammad Shaikh, 33 yrs.
Occu. Rickshaw driver,
2. Pravin Ramchandra Gujar, 31 yrs.
Occu. Rickshaw
3. Sanjay Tukaram Jagtap, 35 yrs. Occu.
Rickshaw
4. Bittya Baban Supekar, 34 yrs.
Occu. Business
5. Harichhandra Balkrishna Shinde,
37 yrs., Occu. Business
6. Pramod Namdeo Nimhan, 36 yrs.
Occu. Business
7. Ramchandra Mahadeo Nimhan,
40 yrs., Occu. Agriculture
All residing at Pashangaon, Pune.
...Respondents
1/38
CRI.APPEAL-736-2003+.DOC
WITH
CRIMINAL APPEAL NO. 1382 OF 2003
The State of Maharashtra
(Through Chatushrungi Police Station) ...Appellant
Versus
1. Anand Roopchand Gajbhiye, 23 yrs.
Occu. Librarian
2. Sandip Namdeo Nimhan, 26 yrs.
Occu. Business
Both residents of Pashangaon, Near Jay
Bhavani Hotel, Pashangaon, Pune,
Dist. Pune-8.
...Respondents
Ms. Vilasini Balsubramaniam, h/f Mr. Sanjeev Kadam, for
the Appellant in Appeal No.736/2003 and for the
Respondents in Appeal Nos.1382/2003 & 1381/2003.
Ms. P. P. Shinde, APP for the State.
CORAM: SMT. SADHANA S.
JADHAV & N. J. JAMADAR,
JJ.
RESERVED ON : 3rd September, 2020
PRONOUNCED ON: 22nd September, 2020
JUDGMENT :(Per: N.J. Jamadar, J.)
1. These appeals are directed against the judgment and order dated 31st May, 2003 in Sessions Case No.182 of 2000, whereby and whereunder accused no.1 Anand and accused no.4 Sandeep (Appellants in Appeal No.736/2003 and Respondents in Appeal No.1381/2003) came to be convicted for the offences punishable under Section 307 read with Section 34 of the Indian Penal Code, 1860 ("IPC") and sentenced to suffer rigorous imprisonment for fve years and 2/38 CRI.APPEAL-736-2003+.DOC pay fne of Rs.1,000/- each, with default stipulation, and the accused nos.2, 3 and 5 to 9 came to be acquitted of the offences punishable under Section 143, 147, 148, 149, 307 and 109 of the IPC.
2. The background facts leading to these appeals can be stated in brief as under:
(a) Mr. Vinayak Nimhan (hereinafter referred to as the frst informant) was elected as a Member of Maharashtra Legislative Assembly, in the elections held in the year 1999. A few days after the declaration of the result, Dasara Festival was being celebrated on 19th October, 1999. As a traditional practice at about 8.00 pm. the frst informant came in front of Prashant Genral Store, Pashan, to distribute bauhinia leaves i.e. (Apta - customary gold) to the citizens and well wishers.
Suddenly a boy, who appeared to be around 24 year old, came in front of the frst informant. The said boy threw some substance in the eyes of the frst informant. As the frst informant felt burning sensation in the eyes he started to rub the eyes. In the meanwhile, two of the informant's associates Vilas Nimhan and Kailas Nimhan chased the said boy who fed away by the adjoining lane. Within moments of the said assault, few persons, who were hiding in another lane, came from behind and the frst informant was assaulted by means of 3/38 CRI.APPEAL-736-2003+.DOC sharp object on the head. The frst informant turned behind and noticed that accused nos.2 to 8 were feeing away. The associates of the frst informant and the persons who were then present at the scene of occurrence chased those assailants. As the frst informant sustained a bleeding injury, the frst informant's driver Hari and Chandrakant Nimhan shifted him to the Sancheti Hospital, Pune.
(b) The boy, who threw the chilly powder, (accused no.1 Anand) was apprehended by Vilas Nimhan and Kailas Nimhan after a chase. Accused no.1 was also brought at Sancheti Hospital and handed over to the police, who had reached the hospital on being apprised about the occurrence. At Sancheti Hospital, the police recorded the statement of the frst informant.
(c) The frst informant reported the police that accused nos.1 to 8 were the members of the gang of Ram Nimhan - accused no.9, who was inimically disposed towards the frst informant on account of the latter's rise in political stature and popularity. In the past, accused no.1 had threatened to eliminate the frst informant. The frst informant was thus assaulted with intent to commit murder. On the strength of the said report crime was registered at Chaturshrungi Police Station at CR No.365 of 1999 for the 4/38 CRI.APPEAL-736-2003+.DOC offences punishable under Sections 143, 147, 148, 149 and 307 of the IPC. Thereupon investigation commenced.
(d) During the course of investigation, the Investigating Offcer sent a requisition to the Magistrate to record the statement of the frst informant. Accordingly, the Special Judicial Magistrate recorded the statement of the frst informant. Accused no.1 came to be arrested and the incriminating article i.e. mobile-phone handset of Samsung make came to be seized from the person of accused no.1. House search of the shop premises Jaybhavani Dry-cleaners, where the appellants were reported to be hiding, was conducted and incriminating articles including a pouch of chilly powder kept in a newspaper was seized under the panchnama. The Investigating Offcer visited the scene of occurrence and drew panchnama of the scene of occurrence on 20th October, 1999. The Investigating Offcer interrogated the witnesses and recorded their statements. The rest of the accused were arrested. On 23rd October, 1999, while in the custody of police, accused no.4 Sandeep made a disclosure statement pursuant to which the weapon of offence i.e. sickle was recovered from behind the house of accused no.4. The injury certifcate of the informant was obtained. Opinion of the Medical Offcer as regards the possibility of the injury 5/38 CRI.APPEAL-736-2003+.DOC sustained by the frst informant by the weapon of assault was also obtained. The seized articles were sent for forensic analysis. After fnding the complicity of the accused for the offences punishable under Sections 143, 147, 148, 307 and 109 of the IPC charge-sheet was lodged against the accused.
(e) On committal, the learned Additional Sessions Judge, Pune, framed charge against accused nos.1 to 8 for the offences punishable under Sections 143, 147, 148, 307 and under Sections 109 and 307 against accused no.9. The accused abjured their guilt and claimed for trial.
(f) At the trial, to bring home the charge to the accused the prosecution examined 11 witnesses including Vinayak Nimhan (PW-10) the frst informant, Kailas Nimhan (PW-6) and Jayant Nimhan (PW-8), as eye witnesses, Dr. Sandeep Patwardhan (PW-7), the Medical Offcer who had examined and treated the frst informant at Sancheti Hospital, and Mallikarjun Apune (PW-11) the Investigating Offcer. The statements of the accused under Section 313 of the Code of Criminal Procedure were recorded. The accused did not lead any evidence in their defence which was of denial and false implication by taking undue advantage of the political clout of the frst informant when, in fact, the frst informant and his associates had assaulted Anand Gajbhiye (A1). 6/38
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(g) After appraisal of the evidence led and the documents tendered for perusal the learned Additional Sessions Judge was persuaded to hold that the prosecution succeeded in establishing the guilt of accused nos.1 and 4 only as accused nos.1 and 4 assaulted the frst informant with intent to commit the murder of the frst informant in furtherance of their common intention. The learned Additional Sessions was, however, of the view that the prosecution could not succeed in establishing that the rest of the accused were the members of the unlawful assembly, the object of which was to commit the murder of the frst informant and the frst informant was assaulted in prosecution of the said common object. Nor the complicity of accused no.9 as an abettor could be established. Thus, accused nos.1 and 4 came to be convicted and sentenced as indicated above. The rest of the accused were acquitted.
3. Being aggrieved by the judgment of conviction and sentence Anand (A1) and Sandeep (A4) have preferred appeal, being Criminal Appeal No.736 of 2003. The State has also preferred an appeal being Criminal Appeal No.1381 of 2003 calling in question the legality and correctness of the order of acquittal of accused nos.2, 3 and 5 to 9. Being dissatisfed with the quantum of sentence imposed on 7/38 CRI.APPEAL-736-2003+.DOC accused nos.1 and 4 the State has also preferred an appeal for enhancement of sentence, being Appeal No.1382 of 2003.
4. We have heard Ms. Vilasini Balsubramaniam, the learned Counsel for the appellants in Appeal No.736 of 2003 and for the respondents in Appeal No.1381 of 2003 and Appeal No.1382 of 2003 and Ms. P.P. Shinde, the learned APP for the State in all the appeals. With the assistance of the learned Counsels for the parties we have perused the evidence and material on record.
5. Since all the appeals are directed against one and the same judgment, we propose to determine the appeals by a common reasoning.
6. To start with, a brief resume of the evidence would be apposite. Mr. Vinayak Nimhan (PW-10), the frst informant informed the Court the he was elected as a member of the Legislative Assembly from Shivaji Nagar Constituency, Pune. Accused no.9 Ram Nimhan had a grudge against him. Accused no.9 and his hirelings had threatened him out of his life. On the core of occurrence Vinayak (PW-10) affrmed that on 19 th October, 1999 at about 8.00 pm. while he was distributing customary gold on account of Dasara in front of Prashant General Stores, Pashan, Accused no.1 came from the opposite direction and threw something in his eyes. He felt irritation in 8/38 CRI.APPEAL-736-2003+.DOC the eyes. Accused no.1 ran away. Kailas Nimhan (PW-6) and Vilas Nimhan chased the accused. While he was rubbing eyes accused nos.2 to 8 came from adjoining lane and inficted a blow on his head. He claimed to have sustained a bleeding injury. Thereupon he was shifted to Sancheti Hospital.
7. The aforesaid version of Vinayak (PW-1) was sought to be corroborated by Mr. Kailas Sahadev Nimhan (PW-6), the informant's cousin. Mr. Kailas claimed to have know Ram - accused no.9, Sandeep - accused no.4 and Pramod - accused no.6 as they are his cousins and rest of the accused as the members of Ram Nimhan's (accused no.9) gang. Kailas claimed that at the time of occurrence while he, Vinayak - the frst informant, and Vilas were standing on the road in front of Prashant General Stores at Pashan, the accused no.1 came from the opposite direction and threw chilly powder in the eyes of Vinayak and started feeing away through the lane. Kailas wants the Court to believe that he and Vilas chased and caught hold of Anand (A1). He further affrmed that he could catch accused no.1 as the latter fell down on the stones while running away. By the time they brought accused no.1 at the scene of occurrence where the frst informant was assaulted, the latter was shifted to Sancheti Hospital. 9/38
CRI.APPEAL-736-2003+.DOC Thereupon accused no.1 was also taken to Sancheti Hospital and handed over to the police.
8. Jayant Sahadev Nimhan (PW-8) professed to lend support to the claim of the informant on the aspect of assault by accused nos.2 to 8. Jayant (PW-8) apprised the Court that while Kailas and Vilas were chasing accused no.1, rest of the accused came thereat and assaulted the frst informant. Accused no.4 Sandeep was armed with a sickle and inficted blow on the head of the frst informant. After assault the assailants started to run away. Jayant (PW-8) claimed to have chased the assailants. He saw accused no.9 Ram in front of Hotel Jaybhavani. Accused no.4 Sandeep told Ram (accused no.9), "work is done start running". Accused no.9 Ram also started running. Despite chase Jayant (PW-8) could not apprehend any of the accused.
9. The claim of Vinayak (PW-10) of having sustained a bleeding injury on head fnds support in the evidence of Dr. Sandeep Patwardhan (PW-7). Dr. Sandeep claimed to have examined Vinayak at Sancheti Hospital at about 8.30 pm. when he was admitted thereat with the history of assault by some blunt object and throwing of chilly powder in the eyes. On examination Dr. Sandeep claimed to have found:
(i) CLW on the right side of the head 10/38 CRI.APPEAL-736-2003+.DOC Approx. 6 c.m. X 1 c.m. bone deep with bleeding.
The injury was on occipto-parietal region of the skull.
(ii) Abrasion on the back.
Dr. Sandeep further informed that x-ray and C.T. scan revealed that the informant had crack fracture on the occipto-parietal region of the skull. According to Dr. Sandeep, the injury was dangerous to life and, if the injury was not attended to, in the ordinary course of nature, it might have caused death. In the opinion of Dr. Sandeep (PW-5) the said injury was possible by the blunt side of the sickle (Article-5).
10. It would be contextually relevant to note that there is evidence to indicate that on 19th October, 1999, the FIR (Exhibit-55) came to be recorded at Sancheti Hospital and the blood stained clothes of the informant were seized under the panchnama (Exhibit-35). The factum of injury to Vinayak (PW-
10) was thus established beyond the pale of controversy. The authorship of the said injury was in contest. 11. Appeal No. 1381 of 2003
The learned Sessions Judge, in the backdrop of the aforesaid ocular account, was of the view that the testimony of Vinayak (PW-10), Kailas (PW-6) and Jayant (PW-8) was required to be appreciated with care and caution as regards the identity of the assailants. Indisputably, the informant 11/38 CRI.APPEAL-736-2003+.DOC party and accused had inimical relations. There is evidence to indicate that the enmity had political and familial overtones. In the very elections in which the frst informant Vinayak (PW-
10) was elected, the accused no.9 Ram and his associates had canvassed against the informant. In fact, the frst informant attributed the inimical disposition as the motive for the assault.
12. In this view of the matter, in our view, the learned Sessions Judge was justifed in evaluating the testimony of aforesaid witnesses on anvil of reliability and trustworthiness. Enmity is a double edged tool. On the one hand, it furnishes a motive for the crime. On the other hand, it drives the unwarranted implication of as many persons from the adversory as possible. When the relations between the parties are shown to be inimical, the ocular account is required to be taken with a pinch of salt. This does not imply that the evidence of the witnesses should be thrown overboard. It warrants an exercise of sifting the grain from chaff.
13. The learned Sessions, on the aforesaid touchstone, found that the testimony of Kailas (PW-6) was limited to the assault perpetrated by Anand (A1). Whereas the testimony of Jayant (PW-8) was of no assistance as regards the accusation of 12/38 CRI.APPEAL-736-2003+.DOC throwing of chilly powder by accused no.1 as the testimony of Jayant (PW-8) was primarily on the aspect of assault of the frst informant by accused nos.2 to 8. The frst informant Vinayak (PW-10), in the backdrop of the assault by throwing of chilly powder in his eyes, could not have seen the assailants post assault by means of a blunt object, held the learned Sessions Judge.
14. The learned APP urged that the aforesaid approach of the learned Sessions Judge was totally erroneous. The testimony of frst informant Vinayak (PW-10) fnds unfinching corroboration in the evidence of Kailas and Jayant. The ocular account is supported by the medical evidence. The witnesses had known the assailants from before and they all had the opportunity to see the assailants. In the backdrop of the consistent evidence, the learned Sessions Judge could not have returned the fnding of not guilty against accused nos.2, 3 and 5 to 9, urged Ms. Shinde, the learned APP.
15. We fnd it rather diffcult to accede to the submission of the learned APP. Evidently, Kailas (PW-6) claimed to have witnessed the accused no.1 throw chilly powder in the eyes of the frst informant and immediately and successfully chased the accused no.1. Kailas (PW-6) does not profess to inform the Court about the assault by the rest of the accused as he had 13/38 CRI.APPEAL-736-2003+.DOC no opportunity. The claim of Jayant (PW-8) to have witnessed both the occurrence was rightly discarded by the learned Sessions Judge. In the backdrop of the prosecution case that, accused nos.2 to 8, who were hiding in a different lane, pounced upon the informant after accused no.1 threw chilly powder on the face of the informant and started to ran away, the claim of Jayant (PW-8) of having witnessed both the occurrence cannot be readily accepted.
16. The learned Sessions Judge, was also justifed in not placing reliance on the claim of frst informant Vinayak (PW-
10) of having seen the assailants. Firstly, it is the prosecution case that the assailants came from behind. Secondly, the assault was mounted after the accused no.1 had already thrown chilly powder on the face of the frst informant. Thirdly, the frst informant himself claimed that he felt irritation in his eyes and was rubbing the eyes when he was assaulted by means of a blunt object on his head. Fourthly, after the said attack the assailants immediately fed away. These factors cumulatively indicate that the time interval between the frst and second incident was very short. The claim of the frst informant Vinayak (PW-10) that he could see the assailants in the aforesaid situation, when the occurrence did not last beyond few moments, does not allure confdence. 14/38
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17. In the aforesaid scenario, the approach of the learned Sessions Judge in seeking corroboration to the ocular account in respect of the identity of the accused nos.2 to 9 as the assailants appears to be justifable. It is imperative to note that there was a single blow on the head of the frst informant. It is not the claim of the prosecution witnesses that apart from Sandeep (A4) rest of the assailants were armed with any weapon or they inficted any blow on the frst informant by means of any weapon. No overt act is attributed to any of the accused apart from Anand (A1) and Sandeep (A4).
18. The endeavour on the part of the prosecution to rope in accused no.9 Ram as an abettor, was also found to be abortive. Firstly, no nexus could be established between accused no.9 and the premises of Jay Bhavani Dry-cleaners, where house search was conducted on the night intervening 19th and 20th October, 1999, and from where the pouch of chilly powder allegedly kept in a newspaper and a jacket were seized under panchnama (Exhibit-33). Secondly, the endeavour to implicate Ram (A9)) by banking upon the testimony of Jayant (PW-8) that he heard Sandeep (A4) calling Ram (A9) to run as the work was accomplished, can not be countenanced. In the context of proved enmity, the testimony of Jayant (PW-8) that he heard Sandeep exhorting Ram (A9) to 15/38 CRI.APPEAL-736-2003+.DOC run away while the assailants were being chased by him and other persons, does not allure confdence.
19. In the totality of the circumstances, the learned Sessions Judge rightly came to the conclusion that the prosecution could not establish that the accused nos.2 to 8 formed an unlawful assembly, the common object of which was to commit murder of the frst informant and in prosecution of the said common object the accused nos.2 to 8 assaulted the frst informant. We do not fnd that there is any substantial or compelling reason to interfere with the judgment of acquittal qua accused nos.2, 3 and 5 to 9. The fndings recorded by the learned Sessions Judge cannot be said to be either unreasonable or arrived at after excluding the relevant evidence. Hence, the appeal preferred by the state against the acquittal of accused nos.2, 3 and 5 to 9 fails. 20. Appeal No.736 of 2003
The learned Sessions Judge was of the view that the act of throwing chilly powder by accused no.1 and that of assault by accused no.4 were in furtherance of common intention. Since accused no.1 was apprehended by Kailas (PW-6) and was indisputably handed over to the police at Sancheti Hospital and it was the stand of the accused no.1 that, at the time of occurrence, he was assaulted by the informant and his 16/38 CRI.APPEAL-736-2003+.DOC associates, the learned Sessions Judge concluded that the prosecution version had a ring of truth as the traces of chilly powder were found on the clothes of the frst informant, on analysis by the chemical analyst and ocular account of the frst informant found corroboration in the evidence of Kailas (PW-6). The guilt of Sandeep (A4) was sustained as the ocular account was found to be corroborated by the medical evidence and the circumstantial evidence in the form of recovery of the blood stained sickle (Article 5) pursuant to the discovery made by accused no.4 under Section 27 of the Evidence Act and the seizure of mobile phone from the person of Anand (A1) which belonged to Sandeep (A4).
21. Ms. Balsubramaniam, the learned Counsel for the appellants would urge that the learned Sessions Judge committed a manifest error in returning a fnding of guilt against accused nos.1 and 4. It was urged that the version of the prosecution witnesses that accused no.1 had thrown chilly powder on the face of the frst informant Vinayak (PW-10) is unworthy of credence as neither the traces of chilly powder were found at the scene of occurrence nor a corresponding injury was noticed by Dr. Sandeep Patwardhan (PW-7). In the backdrop of positive case that the accused no.1 had thrown chilly powder, the frst informant felt irritation in the eyes and 17/38 CRI.APPEAL-736-2003+.DOC was rubbing the eyes, the total absence of corresponding injury dismantles the very prosecution case, urged Ms. Balsubramaniam. Moreover, the prosecution is guilty of suppression of the genesis of the occurrence. From the own showing of the prosecution witnesses, Anand (A1) had sustained severe injuries and yet the Investigating Offcer feigned ignorance about the injuries on the person of the accused no.1 and the latter's medical examination. This false claim of the prosecution witnesses erodes the credibility of their testimony, urged Ms. Balsubramaniam. As there is a discrepancy in the ocular account and medical evidence recording the weapon by which the frst informant allegedly sustained the injury and the necessary nexus between the said weapon and accused no.4 could not be established, the learned Sessions Judge could not have convicted accused no.4 Sandeep as well, submitted Ms. Balsubramaniam.
22. Per contra, Ms. Shinde, the learned APP supported the impugned judgment. The evidence on record, according to the learned APP, establishes the guilt of accused nos.1 and 4 as the prime assailants beyond shadow of doubt. The learned APP urged that the sentence of fve years imprisonment, in the backdrop of murderous assault on a peoples' representative 18/38 CRI.APPEAL-736-2003+.DOC in a public place errs on the side of leniency. Accused nos.1 and 4 deserve condign punishment, urged Ms. Shinde.
23. The frst informant Vinayak (PW-10) and Kailas have affrmed that the accused no.1 threw chilly powder on the face of the frst informant. Pertinently, Vinayak (PW-10) claimed to have felt irritation in the eyes and started rubbing the eyes. It is imperative to note that even in the history narrated to the medical offcer at Sancheti Hospital, assault by means of throwing chilly powder was reported. However, Dr. Sandeep (PW-7) does not claim to have found any injury on account of irritation which the chilly powder causes. The time-lag between the occurrence and admission at Sancheti Hospital was also not of more than 15 to 20 minutes. It is not the claim that the fst informant had washed off his eyes before approaching Sancheti Hospital.
24. What accentuates the situation and corrodes the prosecution case is the report of Dr. Sandeep Patwardhan (Exhibit-42). It records that the inforamnt Vinayak (PW-10) had blood and 'gulal' on the face and thus it was diffcult to comment about the presence of chilly powder in the eyes of the frst informant. It would be contextually relevant to note that during the course of cross-examination Vinayak (PW-10) categorically declined that at the time of occurrence his face 19/38 CRI.APPEAL-736-2003+.DOC was fully covered by gulal. He went on to assert that there was no gulal on his person when he was assaulted and thus no gulal was found on his forehead or in the eyes.
25. The confusion is further confounded by the fact that the prosecution in its endeavour to rope in accused no.9 banked upon the seizure of the pouch of chilly powder at Jay Bhavani Dry-cleaners under house search panchanama (Exhibit-33). The clothes which the frst informant wore at the time of the occurrence seized under the panchnama (Exhibit-35) allegedly had traces of chilly powder. CA report (Exhibit 74) was relied upon by the prosecution to demonstrate that the traces of the chilly powder found on the clothes of the frst informant tallied with the sample of chilly powder found in the said pouch in respect of physicochemical characteristics.
26. In the backdrop of this positive case of the prosecution, the version of Dr. Sandeep (PW-7) that no injury caused by chilly powder was found on the person of the frst informant nor any trace of chilly powder was found on the face, and, on the contrary, the face of the frst informant was then found to be smeared with blood and 'gulal' contradicts the claim of the witnesses to the point of irreconciliation.
27. Though the learned Sessions was justifed in observing that non fnding of traces of chilly powder at the scene of 20/38 CRI.APPEAL-736-2003+.DOC occurrence, during the course of scene of occurrence panchnama, which was drawn on the morning of 20 th October, 1999, did not detract materially from the prosecution, yet the absence of any sign of injury caused by the chilly powder and the claim of Dr. Sandeep Patwardhan (PW-7) that gulal was found on the face of the frst informant, which was categorically declined by the frst informant, could not have been lightly discarded. It is more so for the reason that the learned Sessions Judge had rightly disbelieved the recovery of the pouch of chilly powder from the house search allegedly conducted at Jay Bhavani Dry-cleaners. We are of the view that in its endeavour to connect accused no.9 Ram with the crime the prosecution professed to establish the nexus between the seized chilly powder and residue allegedly found on the clothes of the frst informant which, in fact, ran counter to the prosecution version.
28. The aforesaid factor is of critical signifcance as that is the only overt role attributed to Anand (A1). In this context, the submission on behalf of accused no.1 premised on suppression of the genesis of the occurrence, in the light of the injuries on the person of accused no.1, requires consideration.
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29. The fact that there were injuries on the person of accused no.1 when he was apprehended by Kailas (PW-6) is rather indisputable. Kailas (PW-6) affrmed that the accused no.1 had sustained injury on his right eye and face as he fell down while running away. Mr. Mallikarjun Apune (PW-11) the Investigating Offcer was more candid. Mr. Apune (PW-11) informed that after accused no.1 was brought at Sancheti Hospital he was referred to Sasoon Hospital as there were injuries on his person. Mr. Apune (PW-11) dithered in the cross-examination. He feigned ignorance as to whether Anand (A1) was in fact examined at Sasoon Hospital though he was referred to, along with police staff. He admitted not to have collected the Medico-Legal Certifcate in respect of Anand (A1). He conceded that he had seen the injuries on the person of Anand (A1) when he was produced before him post arrest.
30. Mr. Sandeep Kaduskar (PW-2) public witness to the arrest of Anand (A1) testifed to the fact that accused no.1 had an injury below right eye. There was swelling. In the panchnama evidencing the arrest of Anand (A1) an endeavour was made to explain away the injury by recording that accused no.1 claimed that he sustained the said injury to eye and other injuries on the head as he fell down while running away. 22/38
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31. The failure of the prosecution to explain the injuries on the person of the accused in the same occurrence ipso facto does not warrant jethisoning away the prosecution version. Non-explanation of injuries, which are major, assumes signifcance when the evidence consist of interested or partisan witnesses or where defence offers a version which competes in probability with that of the prosecution.
32. An useful reference, in this context, can be made to a Three Judge Bench Judgment of the Supreme Court in the case of Takhaji Hiraji vs. Thakore Kubersing Chamansing & ors.1, wherein the principles were summarised as under:
"17. The frst question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajendra Singh & Ors. v. State of Bihar, (2000) 4 SCC 298, Ram Sunder Yadav & Ors. v. State of Bihar, (1998) 7 SCC 365 and Viayee Singh & Ors. v. State of U.P., (1990) 3 SCC 190 , all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfed of the existence of two conditions : (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater signifcance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case."
1(2001) 6 Supreme Court cases 145.
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33. In the case at hand, the prosecution witnesses have not denied the injuries on the person of the Anand (A1). the Investigating Offcer Mr. Mallikarjun Aapune (PW-11) had the audicity to feign ignorance despite having given instructions to take accused no.1 for medical examination at Sasoon Hospital. Interestingly, when such instruction was given to the subordinate staff, Anand (A1) was at Sancheti Hospital itself. The Investigating Offcer did not collect the Medico-Legal Certifcate from Sasoon Hospital.
34. In his examination under Section 313 Cr.P.C. Anand (A1) made a statement that he sustained injury as he was assaulted by informant and his associates and the informant Vinayak (PW-10) sustained the injuries as one of the blows fell on his head, and when he went to the police station to report the matter, the accused came to be falsely prosecuted. A photostat copy of the injury certifcate evidencing the examination of accused no.1 at Sasoon General Hospital on 19th October, 1999 at 10.40 pm. was annexed to the statement. The learned Sessions Judge was of the view that this explanation was not adequate and accused no.1 could have established the said fact by leading evidence.
35. We fnd that, in the peculiar fact of the case, where the injuries on the person of the accused no.1 are not denied and, 24/38 CRI.APPEAL-736-2003+.DOC on the contrary, an explanation was sought to be offered by the prosecution witnesses which suits the prosecution version, and the Investigating Offcer claimed that he had given instruction to the staff to take Anand (A1) for medical examination, the failure of the prosecution to place on record the report of medical examination of accused no.1 or offer an explanation as to why the accused no.1 was not medically examined despite such instructions, erodes the credibility of the prosecution. Moreover, if the claim of Kailas (PW-6) that Anand (A1) fell down while feeing away is to be believed, then the accused no.1 would have sustained associated injuries on other parts of the body. The failure of the prosecution to place on record the injury certifcate of Anand (A1), viewed through the aforesaid prism, can not be said to be inconsequential.
36. It is true this factor may not probabalise the defence version as it wavered from one end to another. It was suggested to Dr. Sandeep (PW-7) that the injuries of the kind suffered by the frst informant Vinayak (PW-10) were possible if one falls on the road divider or stone. However, such a gratuitous suggestion was not put to Vinayak (PW-10). Yet, in the light of the absence of the material to show that the frst informant had sustained injury on account of throwing of chilly powder, which was the only act attributed to Anand (A1), and 25/38 CRI.APPEAL-736-2003+.DOC reluctance of the prosecution to place on record the injury certifcate of Anand (A1) though the Investigating Offcer gave instructions to get accused no.1 examined at Sasoon Hospital, impairs the veracity of the claim of Kailas (PW-6) and renders the authorship of the said act of throwing chilly powder in the corridor uncertainty. The learned Sessions Judge fell in error in construing the injury sustained by accused no.1 as not only as the guarantee of his presence at the scene of occurrence but also as a proof of authorship of the said act. The conviction of Anand (A1), thus, cannot be sustained.
37. Ms. Balsubramaniam urged that the conviction of Sandeep (A4) is equally unsustainable. As the learned Sessions Judge was not prepared to place reliance on the testimony of Vinayak (PW-10) on the aspect of the authorship of the assault, the fate of the prosecution case hinges upon the trustworthiness of the claim of Jayant (PW-8) that he had witnessed Sandeep (A4) assaulting the informant by a weapon like sickle. The learned Counsel for the appellant mounted a threefold challenge to the veracity of the claim of Jayant (PW-8). One, the presence of Jayant (PW-8) to witness the occurrence is doubtful as the evidence of frst informant Vinayak (PW-10) on the aspect of the presence of Jayant (PW-
8) suffers from infrmity. Two, a contradiction in respect of 26/38 CRI.APPEAL-736-2003+.DOC Jayant (PW-8) chasing the assailants was duly proved in the cross-examination of Vinayak (PW-10). Three, there was an inordinate and unexplained delay in recording the statement of Jayant (PW-8) under Section 161 of the Code. This unexplained delay impairs the credibility of prosecution as Jayant (PW-8) was the only witness who claimed to have witnessed the assault by Sandeep (A4) by means of sickle.
38. The submissions on behalf of the appellant on the point of the testimony of Vinayak (PW-10) losing corroborative signifcance as regards the presence of Jayant (PW-8) appears to have some substance. The claim of Vianayak (PW-10) that he had opportunity to see Jayant (PW-8) and others chasing the assailants does not warrant implicit reliance. A contradiction was brought out in the cross-examination of Vinayak (PW-10) that while lodging report he had informed that he came to know about Jayant (PW-8) and others chasing the assailants from Chandrakant, who rushed him to Sancheti Hospital. However, this factor is not suffcient to discard the testimony of Jayant (PW-8). The presence of Jayant (PW-8) at the place and time of occurrence, if considered through the prism of the occasion (Dasara celebration) cannot be said to be inconceivable. Moreover, Jayant's (PW-8) version about having witnessed the assault by Sandeep (A4) and chased the 27/38 CRI.APPEAL-736-2003+.DOC assailants to a considerable distance could not have impeached during the course of cross-examination.
39. The argument based on the count of delay in recording the statement of Jayant (PW-8), on a frst blush, appears attractive. Investigating Offcer recorded the statement of Jayant (PW-8) on 21st October, 1999. Kailas (PW-6) and Jayant (PW-8), were admittedly camping at Sancheti Hospital at least on the night intervening 19th and 20th October, 1999. They were present when the Investigating Offcer, Mr. Apune (PW-
11) visited Sancheti Hospital. The identity of the witnesses was also disclosed by the informant while lodging the report. There was at least one day's delay in recording the statement of Jayant (PW-8).
40. The delay in recording the statements of witnesses under Section 161 of the Code is, however, by itself not fatal to the prosecution. It has to be seen whether there are concomitant circumstances which indicate that the Investigating Offcer was marking his time so as to introduce the witness and give shape to the prosecution case. What impairs the prosecution is unreasonable and unexplained delay. In order to derive mileage from the delay in recording the statements of the witnesses, the Investigating Offcer ought to be confronted with the factum of delay and the cause, if 28/38 CRI.APPEAL-736-2003+.DOC any. In the absence of such an exercise mere delay, without anything more, may not advance the cause of the defence.
41. A useful reference, in this context, can be made to a judgment of the Supreme Court in the case of Abuthagir and others vs. State represented through Inspector of Police, Madurai2, wherein in the context of the challenge to the prosecution on the count of delayed examination of the witnesses, the following observations were made:
"28. Much emphasis has been led by learned counsel for the appellants on the alleged delayed examination of the witnesses. It is well settled that delay in examination of the prosecution witnesses by the police during the course of investigation ipso facto may not be a ground to create a doubt regarding the veracity of the prosecution case.
29. So far as the delay in recording a statement of the witnesses is concerned no question was put to the investigating offcer specifcally as to why there was delay in recording the statement. Unless the investigating offcer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for delayed examination is plausible and possible and the Court accepts the same as plausible there is no reason to interfere with the conclusion. (See Ranbir v. State of Punjab [(1973)2 SCC 444], Bodhraj v. State of J & K [(2002) 8 SCC 45], Banti v. State of M.P. [(2004) 1 SCC 414] and State of U.P. v. Satish [(2005) 3 SCC 114]).
(emphasis supplied)
42. In the case at hand, the Investigating Offcer was not at all confronted with the factum of delay. Nor an opportunity was given to the Investigating Offcer to offer explanation. In 2 (2009) 17 SCC 208.
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CRI.APPEAL-736-2003+.DOC the circumstances of the case, the delay of a day or two in recording the statement of Jayant (PW-8) does not seem to be fatal to the prosecution.
43. Two circumstances were taken into account by the learned Sessions Judge as corroborative to the testimony of Jayant(PW-8). First, a mobile phone handset was recovered from the person of Anand (A1) and the sim card used in the said handset belonged to Sandeep (A4). Second, Sandeep (A4) made a disclosure statement pursuant to which the blood stained sickle (Article-5) came to be recovered from the tin- shed behind the house of Sandeep (A4).
44. The frst circumstance, in our view, is inherently of weak character. The recovery of a mobile phone handset, in the context of the charge against the accused, does not advance the cause of the prosecution even if we take the prosecution case at par. The endeavour of the prosecution to establish through the evidence of Janardan Prakash (PW-9) the then Manger of Birla AT & T Communication that on the said number allotted to Sandeep (A4) calls were made to, and received from, the number allotted to Ram (A9), is of no assistance in establishing the nexus of the accused with the crime.
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45. On the aspect of discovery, the evidence of Suresh Kamathe (PW-3) the public witness to the disclosure statement (Exhibit-30) and recovery pursuant thereto could not be impeached. Mr. Mallikarjun Apune (PW-11) also testifed to the factum of recovery of the sickle (Article-5) pursuant to the statement made by Sandeep (A4). The witnesses have consistently disposed that the accused Sandeep (A4) took out the sickle, which was concealed in a heap of grass kept below tin-shed adjacent to the wall of his house, the sickle had blood stains, and it was seized and sealed thereat. Nothing could be elicited in the cross-examination of Suresh Kamathe (PW-3) and Mallikarjun Apune (PW-11) to draw an inference that the accused cannot be fastened with exclusive knowledge of the said concealment of weapon.
46. The CA Report (Exhibit-75) reveals that blood was found on the blade of the sickle (Article-5) and the said blood was of 'O' Positive group. The blood stains found on the clothes of the informant were also of the same blood group. This circumstance renders the necessary assurance. Thus, we do not fnd any justifable reason to discard the evidence of discovery.
47. It is true that Dr. Sandeep (PW-7) opined that the injury sustained by the frst informant Vinayak (PW-10) was possible 31/38 CRI.APPEAL-736-2003+.DOC by the blunt side of the sickle (Article-5). Witnesses have however disposed about assault by the sharp weapon. Having regard to the nature of the occurrence, where the assault did not last beyond few moments, the inconsistency does not appear to be of vital signifcance.
48. In the totality of the circumstances and having regard to the broad probabilities of the case and after evaluating the evidence on the touchstone of credibility and trustworthiness, we are inclined to hold that the prosecution succeeded in establishing that Sandeep (A4) assaulted the informant Vinayak (PW-10) by means of sickle (Article-5).
49. Whether the aforesaid act of assault would fall within the tentacles Section 307 of the IPC? From the text of Section 307, it is evident that, infiction of bodily injury capable of causing death is not essential. What has to be seen is whether the act was done with the intention of causing death or with the intention of causing such bodily injury as the accused knew to be likely to cause death or was suffcient in the ordinary course of nature to cause of death or with the knowledge that the consequence of the act would entail death. Often, the nature of injury caused renders useful assistance in ascertaining the intention of the accused. The nature of the injury, the weapon used, the part of the body 32/38 CRI.APPEAL-736-2003+.DOC selected for inficting the injury and the force with which the injury was caused, are the relevant considerations to deduce the intention behind the act.
50. In the case at hand, there is evidence to indicate that the injury might have been caused by the blunt side of sickle (Article-5). Sandeep (A4) had given a single blow on the head of the frst informant. It is not the case that Sandeep (A4) attempted to infict multiple blows by means of the sharp side of the sickle. Nor there is evidence to indicate that Sandeep (A4) took undue advantage of the situation and continued to unleash the blows even after the informant sat down post the blow on head. These factors justify an inference that the act of assault upon the frst informant was not actuated by the intent of causing death of the frst informant.
51. The testimony of Dr. Sandeep Patwardhan (PW-7) reveals that the frst informant had sustained a bone deep CLW on head with a crack fracture of the skull. Dr. Sandeep (PW-7) further affrmed that the x-ray revealed that the frst informant had suffered crack fracture on the occipto-parietal region of the skull and C.T. Scan confrmed a linear fracture of the outer cable of the occipto-parietal bone of the skull. In the opinion of Dr. Sandeep (PW-7) the said injury was dangerous to life. 33/38
CRI.APPEAL-736-2003+.DOC This claim of Dr. Sandeep (PW-7) could not be impeached during the cross-examination.
52. In the backdrop of the aforesaid evidence, in our view, the injury sustained by the frst informant would fall within the ambit of Clause seventhly of Section 320, namely 'fracture or dislocation of bone or tooth'. A CLW 6 c.m. X 1 c.m. bone deep with fracture of skull satisfes the description of fracture of bone envisaged by Clause seventhly. We are fortifed in our view by a judgment of the Supreme Court in the case of Hori Lal and another vs. State of UP ,3 wherein it was, inter alia, observed that it is not necessary that a bone should be cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or splintering of the bone or there is a rupture or fssure in it, it would amount to a fracture within the meaning of clause 7 of Section 320.
53. In the light of the evidence of Dr. Sandeep (PW-7) regarding the nature of the injury and the weapon i.e. sickle (Article-5), which is a dangerous weapon, in our view, Sandeep (A4) is liable to be convicted for the offence punishable under Section 326 of the IPC.
3(1970) 1 SCC 8.
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54. On the aspect of punishment, the governing principle is its proportionality to the gravity of the offence. In our view, having regard to the fact that a peoples' representative was assaulted, in public view, on account of rivalry which had its genesis in political aspirations as well, and the situation in life of Sandeep (A4), at the time of the occurrence, a sentence of rigorous imprisonment for three years and fne of Rs.1,000/- would meet the ends of justice. The impugned order of conviction and sentence qua Sandeep (A4) is thus required to be altered and modifed accordingly.
55. The upshot of the aforesaid consideration is that the appeal against conviction (Appeal No.736/2003) deserves to be partly allowed and appeal for enhancement of sentence (Appeal No.1382/2003) is liable to be dismissed. Hence, the following order:
:Order:
(I) Appeal No.1381 of 2003 (against acquittal of Accused nos.2, 3 and 5 to 9) stands dismissed. (II) Appeal No.736 of 2003 stands partly allowed.
(a) The judgment of conviction and sentence for the offence punishable under Section 307 read with Section 34 of the IPC qua appellant/accused no.1 Anand Gajbhiye, stands set aside.35/38
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(b) The appellant Anand Gajbhiye (A1) stands acquitted of the offence punishable under Section 307 read with 34 of the IPC.
(c) The bail bond of the appellant Anand Gajbhiye (A1) stands cancelled and surety stands discharged.
(d) The judgment of conviction and sentence for the offence punishable under Section 307 of IPC qua appellant/accused no.4 Sandeep Namdeo Nimhan stands set aside.
(e) The appellant Sandeep Nimhan (A4) stands convicted for the offence punishable under Section 326 of the IPC.
At this stage, Ms. Balsubramaniam, the
learned Counsel for the appellant submitted
that the frst informant and Sandeep (A4) have resolved the dispute and now they both owe affliation to the same political party. The frst informant is desirous of putting an end to the matter and is willing to fle an affdavit to compound the offence. The learned Counsel seeks time to fle appropriate application and affdavit.
In the backdrop of the aforesaid submission, we defer the matter for passing of sentence. 36/38
CRI.APPEAL-736-2003+.DOC Appeal No.736 of 2003 be listed on 29 th September, 2020, for hearing and passing order of sentence qua appellant no.2 Sandeep (A4.) (III) Appeal No.1382 of 2003 (for enhancement of sentence) stands dismissed.
[N. J. JAMADAR, J.] [SMT. SADHANA S. JADHAV J.] FURTHER ORDER IN CRIMINAL APPEAL NO. 736 OF 2003 DATED 16th OCTOBER 2020 :
A. The frst informant Vinayak Nimhan has tendered an affdavit. The frst informant affrms that the dispute between the frst informant and appellant No.2, Sandeep Namdeo Nimhan (Orig. Accused No.4), who is found guilty of the offence punishable under section 326 of the Indian Penal Code, 1860, has been resolved. The incident had its genesis in political rivalry. The frst informant and Sandeep Namdeo Nimhan now owe affliation to the same political party. The affdavit is taken on record and marked 'X-1' for identifcation.
B. The frst informant and the appellant No.2 Sandeep Namdeo Nimhan have also fled a joint pursis vouching for the settlement arrived at between them. The pursis is taken on record and marked as 'X-2' for identifcation.37/38
CRI.APPEAL-736-2003+.DOC C. We have noted that the incident had its genesis in political rivalry. The frst informant and Sandeep Namdeo Nimhan (Orig.Accused No.4) are cousins. It seems they have decided to bury the hatchet. The incident had occurred prior to 20 years. In the circumstances, in our view, the interest of justice would be met if the appellant No.2-Sandeep Namdeo Nimhan (Orig. Accused No.4) is sentenced to suffer imprisonment for the period which he has already undergone (which is about 108 days).
D. Thus, the impugned order of sentence qua appellant No.2-Sandeep Namdeo Nimhan (Orig. Accused No.4) stands modifed.
The accused No.4-Sandeep Namdeo Nimhan is sentenced to suffer imprisonment for the period which he has already undergone and pay fne of Rs.1,000/- (which has already been paid).
The appeal accordingly stands disposed of. [ N.J. JAMADAR, J. ] [ SMT. SADHANA S. JADHAV, J. ] Digitally signed by Shraddha Shraddha K. Talekar K. Date:
Talekar 2020.10.17
15:50:17
+0530
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