Bombay High Court
Kishor Santosh Kulsange (In Jail) vs State Of Maharashtra, Through P.S.O. ... on 9 February, 2017
Author: B.R. Gavai
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.312 OF 2015
Kishor Santosh Kulsange,
Aged about 20 years, r/o.
Ralegaon, Tq.Ralegaon,
Distt. Yavatmal. Presently
detained in Central Prison,
Amravati, Convict No.
C-4607. .......... PETITIONER
// VERSUS //
State of Maharashtra,
Through P.S.O., Ralegaon,
Tq. and Distt. Yavatmal. .......... RESPONDENT
____________________________________________________________
Mr.N.A.Gaikwad, Advocate with Mr.A.S.Manohar,
Advocate for the Appellant.
Mr.V.P.Maldhure, A.P.P. for the Respondent/State.
____________________________________________________________
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CORAM : B.R. GAVAI
AND
KUM.INDIRA JAIN, JJ.
DATE : 9.2.2017.
ORAL JUDGMENT (Per B.R. GAVAI, J) :
1. Being aggrieved by the Judgment and Order passed by the learned Sessions Judge, Yavatmal in Sessions Trial No.18 of 2013 thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/- and in default to suffer rigorous imprisonment for three months, the appellant/Original Accused no.1 has approached this Court.
2. The prosecution story, as could be gathered from the material placed on record, is thus :-
That, on 14.10.2012, at about 9.15 p.m., the first informant namely Satish Dnyaneshwar Lambade (PW-1), deceased Ashish Dnyaneshwar Lambade along with the appellant herein ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:28:59 :::
3 apeal312.15.odt Kishor Santosh Kulsange, Sunil Ramji Kokande (PW-6) and one Atul Junghare had gone for having dinner at the Inn run by Mangesh Narayanrao Shiwankar (PW-3). It is the prosecution case that there was some altercation between deceased Ashish and the appellant on the issue of bringing lemon and onion. As such, the appellant gave a slap to Ashish and went out without having meals. It is further prosecution case that Satish (PW-1) and the deceased after having dinner went on the motor cycle of Nilesh Bhoyar to Netaji Chowk.
After dropping the deceased and Satish (PW-1), Nilesh went by motor cycle. When the deceased and Satish (PW-1) were going to their house, Original accused no.1 Kishor Santosh Kulsange (appellant herein) and Original accused no.2 Ganesh Santosh Kulsange came there. They assaulted the first informant and the deceased and ran away from the spot.
3. On the basis of oral report below Exh.27, the First Information Report came to be lodged below Exh.28. Investigation was set into motion. At the conclusion of investigation, charge sheet came to be filed in the Court of learned Judicial Magistrate, First Class, Ralegaon. Since the case was exclusively triable by the Court ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:28:59 ::: 4 apeal312.15.odt of Sessions, the same came to be committed to the Court of learned District and Sessions Judge, Yavatmal.
4. Charges came to be framed against both the accused for the offences punishable under Sections 302 and 307 r/w. 34 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge convicted the Original accused no.1/appellant for the offence punishable under Section 302 of the Indian Penal Code and passed the order of conviction, as aforesaid. However, insofar as the charge under Section 307 of the Indian Penal Code is concerned, both the accused were acquitted. Original Accused no.2 Ganesh Santosh Kulsange was convicted for the offence punishable under Section 324 of the Indian Penal Code. Being aggrieved thereby, the present appellant/Original accused no.1 has approached this Court.
5. Mr.N.A.Gaikwad, learned Counsel for the appellant submits that the learned trial Judge has grossly erred in convicting the appellant herein. He submits that the statements of alleged eye witnesses are recorded after a period of 15 days. It is submitted that, in that view of the matter, possibility of false implication of the ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:28:59 ::: 5 apeal312.15.odt appellant cannot be ruled out. He further submits that even recovery of weapon alleged to have been used in the crime is farcical. Learned Counsel, in the alternative, submits that, from the evidence on record, it is clear that there is no pre-mediation and at the most, the case would come under either Part I or Part II of Section 304 of the Indian Penal Code and not under Section 302 of the Indian Penal Code. As against this, the learned A.P.P. submits that, apart from the first informant, there are four eye witnesses and as such, the prosecution has proved the case beyond reasonable doubt and no interference is warranted with the Judgment and Order passed by the trial Judge.
6. With the assistance of the learned A.P.P. and the learned Counsel for the appellant, we have scrutinized the entire evidence on record. Nodoubt that, except the first informant, the statements of other eye witnesses i.e. Sudhakar Rambhauji Lakade (PW-4), Kailash Narayanrao Chidam (PW-5), Sunil Ramji Kokande (PW-6) and Deepak Santoshrao Daware (PW-7) have been recorded after a period of 15 days from the date of incident. Nodoubt that merely the delay in recording the statements would not be fatal to the prosecution case if the prosecution is in a position to give satisfactory ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:28:59 ::: 6 apeal312.15.odt explanation for the delay caused in recording the statements of the witnesses and the evidence of such of the witnesses can be used. It would further reveal from the testimony of Sunil Ramji Kokande (PW-6) that statements after statements of said witness were recorded so as to improve the version of prosecution story. He categorically admits that when the Police came to record subsequent statements, he was told by police that, in the earlier statement, he has not stated that the deceased was assaulted by the accused with the Sword like weapon and he should give a statement to that effect.
Deepak Daware (PW-7) also categorically admits in his statement that, for the first time, he was interrogated by police on 28.10.2012 and till that period, he has not informed about the incident to any one. In the light of this factual position, it will be appropriate to refer to the following admissions in the cross-examination of the Investigating Officer P.S.I. Shrikrushna Shamraoji Chandurkar (PW-
11), " 11. It is transpired during investigation that Sudhakar Lakade, Kailash Sidam, Sunil Kokande and Deepak Daware were the eye witnesses of incident. It was transpired to me on 15th. I have tried to record their statements since 15th. It is correct that I have started ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:28:59 ::: 7 apeal312.15.odt recording their statement since 24th onward. I have sent messages to those eye witnesses through police in the intervening period. Witness voluntarily that personally gone to call them. It is correct that till 24th October none of the eye witnesses disclosed the incident to me. These witness on their own did not come to me to give their statements. It is not true to say that the so called eye witnesses are the manipulated eye witnesses. It is not true to say that they have not seen any incident. "
7. It could thus be clearly seen that Shrikrushna Chandurkar (PW-11) has made a contradictory statement. On one hand, he states that he came to know that Sudhakar Rambhauji Lakade (PW-4), Kailash Narayanrao Chidam (PW-5), Sunil Ramji Kokande (PW-6) and Deepak Santoshrao Daware (PW-7) were eye witnesses on 15th and on the other hand, he admits that, till 24th October, none of the eye witnesses has disclosed about the incident to him. Even, on that date, the statements are not recorded, but are recorded after four days on 28th. It could further be seen that though Shrikrushna (PW-11) categorically admits that when he had been to Police Station to lodge report, Original accused no.1 was present in the Police Station, he denies the same in the cross-
examination. However, admits that the appellant was arrested at ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:28:59 ::: 8 apeal312.15.odt Police Station. He further admits that there is no mention in the Station diary as to when accused Kishor visited the Police Station. In the background of this position, we find that it cannot be said beyond reasonable doubt that the testimonies of these four alleged eye witnesses is truthful, cogent and reliable. That leaves us with the testimony of first informant Satish (PW-1).
8. In his evidence, Satish (PW-1) states about the earlier incident in the Inn of Mangesh Shiwankar (PW-3) with regard to altercation between the deceased and the appellant. He states that thereafter appellant Kishor left the spot. After finishing their dinner, the deceased and this witness Satish (PW-1) went on the motor cycle of one Nilesh and went to Netaji square. At that time, both the accused had hidden themselves. After seeing them, accused Ganesh assaulted the first informant with rod on his left leg and accused Kishor gave a blow with sword stick to his brother on his chest and abdomen and thereafter, both of them ran away. Nodobut that this witness has implicated the present appellant in the first information report itself; however, his cross-examination would reveal that he has changed his version from statement to statement. Since the principle "falsus in uno, falsus in omnibus" is not applicable in India, ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:28:59 ::: 9 apeal312.15.odt the entire testimony of Satish (PW-1) cannot be discarded. We find that such of the testimony of this witness which is found to be reliable can be read in evidence. We find that. insofar as the assault by the appellant on the deceased is concerned, the same being corroborated by the F.I.R., the said part of the evidence can be said to be reliable. However, we find that, insofar as that part of his evidence which attributes pre-mediation to the appellant, needs to be discarded.
9. The testimonies of Sudhakar Rambhauji Lakade (PW-4), Kailash Narayanrao Chidam (PW-5), Sunil Ramji Kokande (PW-6) and Deepak Santoshrao Daware (PW-7) itself would reveal that an altercation between the appellant and his brother on one hand and the deceased and the first informant on the other hand had taken place. Not only that, but witness Sunil Kokande (PW-6) has stated in his cross-examination that "it is correct that had the mother of Ashish would not have given Sword stick, the incident would not have happened". Not only this, but Deepak (PW-7) has also admitted in his evidence that initially when the scuffle was going on, there was no weapon in the hand of any one. It would further be seen that he has further admitted that when Kishor and Ganesh were present at ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:28:59 ::: 10 apeal312.15.odt the pan shop, Satish and Ashish came there and they have started scuffle amongst them. It could thus be seen that the defence of the accused that, in the scuffle which took place, the accused in a heat of passion assaulted the deceased, cannot be said to be improbable. It is further to be noted that the learned trial Judge herself has disbelieved the evidence regarding recovery of the weapons. In that view of the matter, we find that, in view of evidence of Sunil Ramji Kokande (PW-6) and Deepak Santoshrao Daware (PW-7), the defence of the appellant cannot be said to be improbable. From the evidence of Sunil Kokande (PW-6), it could be seen that it is his version that if the mother of the deceased Ashish had not have given Sword stick, the incident would not have happened.
10. As already discussed hereinabove, from the evidence of Shrikrushna Chandurkar (PW-11), it cannot be said that the investigation has been done in impartial and fair manner. On the contrary, it could be seen from the evidence of Shrikrushna (PW-11) that the investigation has been done so as to find the evidence to fortify the version given by Satish (PW-1). It is to be noted that, in the First Information Report, the first informant does not even refer to presence of rest of the witnesses. In that view of the matter, we ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:28:59 ::: 11 apeal312.15.odt are of the considered view that the prosecution has withheld the real genesis of the incident. It has failed to prove that there was a pre-
mediation. The learned Judge has also acquitted the Original accused no.2, who was sought to be roped into with the aid of Section 34 of the Indian Penal Code. In the result, we find that the prosecution has utterly failed to prove that the case would come under Section 302 of the Indian Penal Code. We are of the considered view that the case would at the most come under Part I of Section 304 of the Indian Penal Code. Hence, the Order.
O R D E R The Criminal Appeal is partly allowed.
The conviction and sentence awarded to the appellant for the offence punishable under Section 302 of the Indian Penal Code are set aside and altered to one under Part-I of Section 304 of the Indian Penal Code.
The appellant is sentenced to undergo rigorous imprisonment for a period of six years for the said offence.
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JUDGE JUDGE
[jaiswal]
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